Muldrow v. Barron

• Decision Date: 10 May 2021
• Docket Number: 1-21-0248
• Citation: 2021 IL App (1st) 210248,191 N.E.3d 171,455 Ill.Dec. 212
• Parties: Kenneth MULDROW Jr., Petitioner-Appellant, v. William BARRON, Rondal Jones, and Thomas Jaconetty, in Their Capacities as Members of the Markham Municipal Officers Electoral Board; Sandra Curtis; and Karen Yarbrough, in Her Capacity as the Cook County Clerk, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

2021 IL App (1st) 210248

191 N.E.3d 171

455 Ill.Dec. 212

Kenneth MULDROW Jr., Petitioner-Appellant,

v.William BARRON, Rondal Jones, and Thomas Jaconetty, in Their Capacities as Members of the Markham Municipal Officers Electoral Board; Sandra Curtis; and Karen Yarbrough, in Her Capacity as the Cook County Clerk, Respondents-Appellees.

No. 1-21-0248

Appellate Court of Illinois, First District, FIRST DIVISION.

Filed May 10, 2021

Andrew Finko, of Chicago, for appellant.

Steven M. Laduzinsky and Natalie Wilkins, of Laduzinsky & Associates, P.C., of Chicago, for appellee Sandra Curtis.

Kimberly M. Foxx, State's Attorney, of Chicago (Marie D. Spicuzza, Assistant State's Attorney, of counsel), for appellee Karen Yarbrough.

Burton S. Odelson and Ross D. Secler, of Odelson, Sterk, Murphey, Frazier & McGrath, Ltd., of Evergreen Park, for other appellees.

JUSTICE COGHLAN delivered the judgment of the court, with opinion.

¶ 1 In this election case, petitioner, Kenneth Muldrow Jr., appeals the Municipal Officers Electoral Board for the City of Markham's (Board) decision striking his name from the ballot as an independent candidate for the office of mayor of the City of Markham (City) in the April 6, 2021, consolidated general election. On appeal, Muldrow claims that his name as an independent candidate should appear on the ballot because there was no evidence of fraud, false swearing, and total disregard for the mandatory requirements of the Election Code ( 10 ILCS 5/1-1 et seq. (West 2018)) in his nomination papers. We affirm.

¶ 2 BACKGROUND

¶ 3 On December 21, 2020, Muldrow filed nomination papers to be included on the ballot as an independent candidate for election to the office of mayor at the April 6, 2021, consolidated general election. Muldrow's nomination papers included "45 pages of 15-line petition sheets containing a potential of 675 signatures of purported qualified voters of the City." To be included on the April 6, 2021, ballot as a mayoral candidate, an independent candidate "must present nominating petitions containing not less tha[n] 96 and no more than 154 signatures of duly qualified and registered votes of the City."

¶ 4 Sandra Curtis (objector) filed an "Objector's Petition" against Muldrow's nomination papers, raising signature and circulator-based objections. As to the signature objections, she alleged that the nomination papers contained forged signatures and included the names of individuals who were not registered voters or did not reside in the City. As to the circulator-based objections, she alleged that circulator affidavits were "false and constitute[d] a false swearing because the purported circulator did not actually obtain, solicit, or witness the affixing of voters’ signatures to those sheets."

¶ 5 On January 9, 2021, Muldrow filed a motion to recuse substitute chair Alderman William Barron and member Alderman Rondal Jones and the Board's law firm "based upon conflicts of interest *** that create a bias that would not yield a fair and neutral decisions."¹ Muldrow alleged that the Board members were biased because they supported and made contributions to an opposing candidate. He claimed that the Board's law firm also supported the opposing candidate and had previously represented and continued to represent that candidate.

¶ 6 At the January 13, 2021, public hearing, the Board ordered a "records examination" and denied Muldrow's motion to disqualify members of the Board and its law firm. During the next public hearing on January 15, 2021, the Board granted the objector's request for the issuance of subpoenas for witnesses to testify at the January 22, 2021, hearing.²

¶ 7 The Board's requested "records examination" revealed that Muldrow's nomination papers had 95 valid signatures, one less than the minimum signature requirement. Muldrow filed a "Candidate's Rule 8 Motion,"³ objecting to the records examination results and seeking "further review of the findings from the records exam."

¶ 8 On Friday, January 22, 2021, at 6 p.m., the Board conducted a public evidentiary hearing to address the objector's petition and Muldrow's Rule 8 motion. Muldrow offered affidavits to rehabilitate individual signatures identified as invalid. The Board "determined that certain, proposed affidavits were insufficient on their face and of little evidentiary weight and, therefore, were excluded from the Electoral Board's consideration." However, based on the affidavits admitted for the Board's consideration, Muldrow succeeded in rehabilitating 2 signatures, bringing the total number of valid signatures to 97, which was 1 above the required minimum of 96.

¶ 9 Regarding the objector's claims, Muldrow was called to testify as an adverse witness. Muldrow testified that he did not know a subpoena had been issued for certain named circulators, including his nephew, personal friend David Walker, and other personal friends, and "absolutely had no knowledge" that allegations were raised against those circulators that they engaged in misconduct and a pattern of fraud related to the circulation of his petition sheets. Muldrow stated, though, that he personally "asked them" to circulate petition sheets. He also testified that he was "not sure" if someone checked the signatures and registrations, "did not know" who put his petition sheets together, or who the identified circulators gave the petition sheets to that they circulated. The Board found Muldrow's "testimony to be incredible," explaining that Muldrow, "a veteran candidate, and experienced police officer does not reasonably have such little knowledge or involvement with his own nominating petitions upon which his mayoral candidacy rests."

¶ 10 At the conclusion of Muldrow's testimony, the objector attempted to call circulator Walker to testify and the following events transpired:

"CHAIR BARRON: Mr. Walker is here. He returned.

MR. LADUZINSKY [(OBJECTOR'S COUNSEL)]: Did he?

CHAIR BARRON: Yeah, he is here.

MR. FINKO [(MULDROW'S COUNSEL)]: He was not served to my knowledge.

CHAIR BARRON: Oh, so you are not here under subpoena?

MR. WALKER: No, I didn't receive any. I'm just here for support.

* * *

MEMBER JACONETTY: All right. Wait a minute. Is the witness here who is under subpoena?

MR. LADUZINSKY: Yes.

MR. FINKO: He is not under subpoena. He is not under subpoena. He has not been served.

MR. JACONETTY: He was never served, but he was under subpoena. He was here voluntarily.

CHAIR BARRON: And he just walked out on us.

* * *

MEMBER JACONETTY: *** I'm saying that a witness who was under subpoena who was in the objector's petition who could not be served was here of his own volition in this room and he can be called as a witness.

MR. SECLER [(BOARD'S COUNSEL)]: Absolutely.

MEMBER JACONETTY: So we would ask that, perhaps, the officer go and find him.

* * *

MR. FINKO: I would object to that process. ***

MEMBER JACONETTY: The law does not favor evasion of process, and the individual was here of his own free volition and was present in this hearing room. He has exempted himself from here, and the officer can testify as to relevant facts concerning his presence and leaving, and that is germane to the fact that the witness has decided not to present himself when he knows he's under subpoena.

* * *

MR. SECLER: Nor did he move to quash the subpoena."

¶ 11 The City's deputy chief of police Jack Genius testified as follows:

"Initially I was watching the proceedings as I was providing security, and I noticed Mr. Walker come in. I know Mr. David Walker for several years. He sat down, and the conversation proceeded. At one point the Board brought up that he was under subpoena, and then he got up.

I was directed by the Board to ask him to come back and I walked out. I met him outside the door as he was going to his car, and I explained to him, and he just said–he knew me and he said I got to go. And I'm saying that the Board is requesting him to come in and testify, that the Board has asked me to go and to ask him to come in. And the gentleman over here, Mr. Price, told him: Please get in your car. Go home. Go home. Don't go in. *** Then he proceeded to go in his car and left."

¶ 12 Over Muldrow's objection, the Board passed a motion to "take an adverse finding on the petitions that were circulated by David Walker," explaining that based on Walker's actions that "we all witnessed," there was "a very strong indication that, had he been called to testify, it would have been adverse to his interests" and Muldrow's position. The Board then struck nomination petition page six circulated by Walker.

¶ 13 On January 27, 2021, the Board issued a unanimous written decision during an open session ordering that Muldrow's name "shall not appear on the ballot for the April 6, 2021 consolidated election." In its written decision, the Board stated that it " ‘cannot close its eyes and ears’ to such an unusual and overt act to avoid having to testify about the petition circulation process as demonstrated by David Walker" and to "ignore these facts would undermine the integrity of the electoral process and cripple the ability of the Electoral Board to properly complete its duties." The Board explained that it found Muldrow had control over Walker⁴ and it was entitled to draw a negative inference from Walker's failure to testify. Specifically, the Board found that:

"based on David Walker's overt action to avoid testifying and the active fleeing of the proceedings instead of complying with the subpoena issued for his testimony, that had Mr. Walker testified, his testimony would have revealed a pervasive and systematic pattern of fraud and false swearing in total disregard for the mandatory requirements of the Illinois Election Code that would justify the striking of all petition sheets he circulated. This further bolstered by the Candidate's own evasive, non-communicative, and incredible testimony. Therefore, the Electoral Board SUSTAINS (3-0) the objections made in Paragraphs 13 through 15 of the Objector's Petition with respect to the

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