Party v. Lyons

• Decision Date: 10 March 2011
• Docket Number: No. 1–11–0439.,1–11–0439.
• Citation: 945 N.E.2d 1175,349 Ill.Dec. 23,407 Ill.App.3d 1004
• Parties: LYONS MVP PARTY and its slate of candidates, Pedro Castro, Patricia Krueger and Michael J. Szykowny, Candidates–Appellants,v.LYONS, ILLINOIS, MUNICIPAL OFFICERS ELECTORAL BOARD and its individual members, Christopher Getty, Dawn Campos and Timothy Tvrdik; the Objector Paul Marchiori; and David Orr in his official capacity as Cook County Clerk, Respondents–Appellees.
• Court: United States Appellate Court of Illinois

407 Ill.App.3d 1004

945 N.E.2d 1175

349 Ill.Dec. 23

LYONS MVP PARTY and its slate of candidates, Pedro Castro, Patricia Krueger and Michael J. Szykowny, Candidates–Appellants,

v.LYONS, ILLINOIS, MUNICIPAL OFFICERS ELECTORAL BOARD and its individual members, Christopher Getty, Dawn Campos and Timothy Tvrdik; the Objector Paul Marchiori; and David Orr in his official capacity as Cook County Clerk, Respondents–Appellees.

No. 1–11–0439.

Appellate Court of Illinois, First District, Sixth Division.

March 10, 2011.

Adam W. Lasker, Law Offices of Adam W. Lasker, Chicago, for Appellants.James P. Nally, P.C., Chicago, for Appellees.

[349 Ill.Dec. 24 , 407 Ill.App.3d 1004] OPINION

Justice ROBERT E. GORDON delivered the judgment of the court, with opinion.

Petitioners in this election case, the Lyons MVP Party and its slate of candidates for village trustee, Pedro Castro, Patricia Krueger, and Michael J. Szykowny, appeal an order by the circuit court of Cook County affirming the decision of respondent Lyons, Illinois, Municipal Officers Electoral Board (Board), to invalidate nomination papers filed by them for the April 5, 2011, Village of Lyons municipal election. The Board found the nomination papers invalid under section 10–5 of the Election Code (Code) (10 ILCS 5/10–5 (West 2008)), and ordered that petitioners' names not be printed on the ballot. We reverse.

BACKGROUND

The nomination petitions signed by the voters state that the candidates are nominated to run as candidates of the MVP Party, a new political party. However, the statements of candidacy filed by the candidates state the word “nonpartisan” near the top of the form. Respondent Paul Marchiori objected to the nomination papers on the ground that the papers did not

[349 Ill.Dec. 25 , 945 N.E.2d 1177]

comply with sections 10–4 and 10–5 of the Code.

The majority of the Board, comprised of respondents Christopher Getty and Dawn Campos, sustained the objection by a two to one vote as respondent Timothy Tvrdik dissented. The majority of the Board entered a consolidated decision including a finding that “[t]he petitions, which say the Candidates are running as candidates of the MVP Party and the statements of candidacy which say ‘nonpartisan’ at the top, are inconsistent and confusing and contradictory. Because the Candidates filed partisan petition sheets and nonpartisan statements of candidacy, there is no compliance with the requirements of the Election Code” (section 10–5).

Petitioners sought judicial review of the Board's decision in the circuit court of Cook County. The circuit court affirmed without a written decision. Petitioners appealed and we granted an expedited briefing schedule and respondent filed its brief and argument on March 4, 2011. Petitioners failed to file a reply brief.

ANALYSIS

The issue before this court is whether it is a violation of the Code to file nomination petitions stating that the candidates are nominated to run as candidates of the MVP Party, a new political party, when the statements of candidacy filed by the candidates state they are nonpartisan. The issue is one of statutory construction.

The fundamental rule of statutory construction is to ascertain and give effect to the legislature's intent. People ex rel. Birkett v. City of Chicago, 202 Ill.2d 36, 45, 269 Ill.Dec. 21, 779 N.E.2d 875 (2002). The best indication of legislative intent is the plain and ordinary meaning of the statutory language. Birkett, 202 Ill.2d at 45, 269 Ill.Dec. 21, 779 N.E.2d 875. Where the language is clear and unambiguous, we must apply the statute without resort to other aids of statutory construction. Birkett, 202 Ill.2d at 45–46, 269 Ill.Dec. 21, 779 N.E.2d 875. If the statutory language is ambiguous, we look to other sources to decide the legislature's intent. Birkett, 202 Ill.2d at 46, 269 Ill.Dec. 21, 779 N.E.2d 875. The construction of a statute is a question of law that is reviewed de novo. Birkett, 202 Ill.2d at 46, 269 Ill.Dec. 21, 779 N.E.2d 875; McNamara v. Oak Lawn Municipal Officers Electoral Board, 356 Ill.App.3d 961, 964, 293 Ill.Dec. 115, 827 N.E.2d 996 (2005); Cullerton v. Du Page County Officers Electoral Board, 384 Ill.App.3d 989, 991, 323 Ill.Dec. 748, 894 N.E.2d 774 (2008).

Section 10–5 of the Election Code reads in pertinent part:

“All petitions for nomination shall, besides containing the names of candidates, specify as to each:

* * *

(2) The new political party, if any, represented, expressed in not more than 5 words. * * *

* * *

[The statement of candidacy] shall set out the address of such candidate, the office for which he is a candidate, shall state that the candidate is qualified for the office specified and has filed (or will file before the close of the petition filing period) a statement of economic interests as required by the Illinois Governmental Ethics Act, shall request that the candidate's name be placed upon the official ballot and shall be subscribed and sworn to by such candidate * * *.”

Petitioners argue that the Code does not require a statement of candidacy form to mention any party affiliation at all; therefore, the objector has failed to establish any breach of statutory duty by the candidates. Respondent argues that this case is

[349 Ill.Dec. 26 , 945 N.E.2d 1178]

analogous to Cullerton v. Du Page County Officers Electoral Board, 384 Ill.App.3d 989, 323 Ill.Dec. 748, 894 N.E.2d 774. The Cullerton case involved section 7–10 and is distinguishable from the case at bar. In Cullerton, the candidate attempted to run as the Democratic candidate for a legislative office, although he was secretly affiliated with and a primary voter of the Republican Party, and the court found his statement of candidacy false and disqualified his candidacy. The court's finding indicated fraud. In the case at bar, either the candidates were given a form for the statement of candidacy with the label “nonpartisan,” or selected the wrong form. There was no showing here of any fraud, nor did the objector claim fraud.

In McNamara v. Oak Lawn Municipal Officers Electoral Board, 356 Ill.App.3d 961, 293 Ill.Dec. 115, 827 N.E.2d 996, we reversed the Board and the circuit court when they found a joint nomination petition invalid under section 10–3 of the Code. Justice Robert Cahill authored a scholarly opinion that found that the Code allows independent candidates to file joint nomination papers as evidenced by the legislature's reference to candidates in the plural and the inclusion of the words “in the aggregate.” We held that section 10–3 of the Code does not contain mandatory language nor does it provide that compliance is essential to effect a valid nomination. In deciding whether the petitioners' noncompliance with section 10–3 was fatal to their nomination, we relied on People ex rel. Meyer v. Gerner, 35 Ill.2d 33, 39, 219 N.E.2d 617 (1966).

In Gerner, our supreme court held:

“Where a statute provides that an election shall be rendered void by failure of those involved in the election process to perform certain duties, the courts are bound to enforce it as mandatory. [Citations.] But, where the statute does not expressly declare its provisions to be mandatory or compliance therewith to be essential to its validity, the failure to strictly comply, in the absence of fraud or a showing that the merits of the election were affected thereby, is not fatal.” Gerner, 35 Ill.2d at 39, 219 N.E.2d 617.

In the case at bar, there is nothing in the statute that required the candidates to state party affiliation in their statement of candidacy. The form that stated “nonpartisan” should not have been in the statement, but its inclusion was not shown to be fraud, not was there any showing that the merits of the election were affected. Our courts have favored access and guard the right of voters to endorse and nominate the candidates of their choice unless candidates violate mandatory language of the Code, where compliance is essential to effect a valid nomination. Lucas v. Lakin, 175 Ill.2d 166, 221 Ill.Dec. 834, 676 N.E.2d 637 (1997); Welch v. Johnson, 147 Ill.2d 40, 56–57, 167 Ill.Dec. 989, 588 N.E.2d 1119 (1992); Anderson v. Schneider, 67 Ill.2d 165, 8 Ill.Dec. 514, 365 N.E.2d 900 (1977); McNamara, 356 Ill.App.3d 961, 293 Ill.Dec. 115, 827 N.E.2d 996.

Respondent argues that the apparent contradiction between the candidates' statements of candidacy, which include a heading stating “nonpartisan,” and their nominating petitions, which refer to them as members of the MVP Party, give rise to confusion over the true nature of the candidacies. Our supreme court introduced the concept of analyzing whether there is a “basis for confusion” in a candidate's nomination papers in the case of Lewis v. Dunne, 63 Ill.2d 48, 344 N.E.2d 443 (1976). Like Cullerton, Lewis involved section 7–10. In Lewis, our supreme court held that a failure to specify the vacancy sought in the statement of candidacy did not render the candidate's nominating papers invalid

[349 Ill.Dec. 27 , 945 N.E.2d 1179]

because the vacancy was specified in the nominating petition. The court held that “[t]here was no conflict or inconsistency between the description of the office in the petitions signed by electors and the statement of candidacy, and in our opinion there was no basis for confusion as to the office for which the nominating papers were filed.” Lewis, 63 Ill.2d at 53, 344 N.E.2d 443. Since the Lewis decision, courts analyzing whether nominating papers complied with the Code have considered the presence of a “basis for confusion.”

Like Lewis, most of the cases considering the question have been in the context of possible violations of section 7–10 and have involved the issue of whether the description of the office sought by the candidate is sufficient. However, the reasoning from those cases is instructive. Generally, courts have found that where the office specified in the nominating papers can only refer to one possible vacancy, there is no basis for...