Salgado v. Marquez

• Decision Date: 20 April 2005
• Docket Number: No. 2-05-0154.,2-05-0154.
• Citation: 356 Ill. App.3d 1072,293 Ill.Dec. 495,828 N.E.2d 805
• Parties: Gregorio SALGADO, Petitioner Appellant, v. David MARQUEZ; the Municipal Officers Electoral Board of the City of Aurora, and its Members, Charles R. Bond, G. William Richards, Louvenia Erves; and John A. Cunningham, in His Capacity as Kane County Clerk, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

828 N.E.2d 805

356 Ill. App.3d 1072

293 Ill.Dec. 495

Gregorio SALGADO, Petitioner Appellant, v. David MARQUEZ; the Municipal Officers Electoral Board of the City of Aurora, and its Members, Charles R. Bond, G. William Richards, Louvenia Erves; and John A. Cunningham, in His Capacity as Kane County Clerk, Respondents-Appellees.

No. 2-05-0154.

Appellate Court of Illinois, Second District.

April 20, 2005.

Victor P. Armendariz, Cynthia M. Stenner, Law Office of Victor P. Armendariz, Maywood, for Gregorio Salgado.

Peter K. Wilson Jr., Dean M. Frieders, Mickey, Wilson, Weiler, Renzi & Anderson, P.C., Aurora, for Charles R. Bond, John A. Cunningham, Louvenia Erves, Municipal Officers of the Electoral Board of the City of Aurora, G. William Richards.

Patrick M. Kinnally, Kinnally, Krentz, Loran, Hodge & Herman, P.C., Aurora, for David Marquez.

Justice KAPALA delivered the opinion of the court:

Petitioner, Gregorio Salgado, appeals from the order of the circuit court of Kane County that affirmed the decision of respondent the Municipal Officers Electoral Board of the City of Aurora (Board), which found that petitioner's objections to the nominating papers of respondent David Marquez were not sustained. We reverse.

I. BACKGROUND

Marquez sought to run for the office of alderman for the second ward of the City of Aurora. On December 6, 2004, Marquez filed his nominating papers, consisting of nominating petitions,¹ a statement of candidacy, a statement of economic interest, and a loyalty oath. The nominating petitions requested that the "named person shall be a Nonpartisan Candidate for nomination * * * to the office hereinafter specified * * * to be voted for at the primary Election to be held on 02/22/05." Each nominating petition also contained a box with a heading that read "OFFICE." Underneath this heading was printed "(circle one) full term or vacancy." Each of Marquez's nominating petitions had the words "full term" circled underneath the "OFFICE" heading. There was no other writing contained in the "OFFICE" box. None of the nominating petitions contained any indication of which office Marquez sought. Marquez's statement of candidacy did correctly list the office he sought.

On December 20, 2004, petitioner filed objections to the nominating petitions. Among the objections made was that Marquez failed to include the office for which he was running on his nominating petitions and that this failure rendered the nominating petitions invalid. The Board held a hearing on petitioner's objections. Petitioner was not present but sent a representative in his stead. The Board concluded that even without petitioner's presence, it could rule on at least some of petitioner's objections, including his objection to Marquez's failure to list the office sought on his nominating petitions. After the hearing, the Board ruled that because Marquez's nominating papers as a whole indicated the office he sought, there was no basis for confusion as to which office Marquez was seeking. The Board found that all of petitioner's objections were not sustained.

Petitioner sought review in the circuit court of Kane County. The circuit court affirmed the decision of the Board. Petitioner then timely appealed to this court. We granted accelerated review of this case under Supreme Court Rule 311 (155 Ill.2d R. 311).

II. DISCUSSION

First, we note that Marquez, in his appellee's brief, requests that we strike portions of petitioner's brief that are not supported by citation to the record. Supreme Court Rule 341(e)(7) (Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(e)(7), eff. October 1, 2001) requires the appellant's brief to include "[a]rgument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on." However, the portions of petitioner's brief of which Marquez complains are not relevant to our decision and, therefore, we will not strike them.

On appeal, petitioner contends that we should reverse the rulings of the circuit court and the Board for two reasons. First, petitioner contends that the Board erred in determining that Marquez's failure to list the office he sought on his nominating petitions did not render the nominating petitions invalid. Second, petitioner contends that Marquez's nominating petitions contained the actual or forged signature of a board member and that the presence of this signature warrants reversal. We agree with petitioner's first contention and find it dispositive. Accordingly, we do not reach petitioner's second contention.

There is no dispute that Marquez did not list the office he sought on any of his nominating petitions. Consequently, the question presented to us is whether Marquez's nominating petitions meet the requirements of section 7-10 of the Illinois Election Code (Code) (10 ILCS 5/7-10 (West 2002)). This is a question of law, which we review de novo. Heabler v. Municipal Officers Electoral Board, 338 Ill. App.3d 1059, 1060, 273 Ill.Dec. 680,789 N.E.2d 854 (2003).

Section 7-10 governs the form and content of nominating petitions. Section 7-10 states, "[e]ach sheet of the petition other than the statement of candidacy and candidate's statement shall be of uniform size and shall contain above the space for signatures an appropriate heading giving the information as to name of candidate or candidates, in whose behalf such petition is signed; the office, the political party represented and place of residence; and the heading of each sheet shall be the same." 10 ILCS 5/7-10 (West 2002). We note parenthetically that petitioner also references section 10-4 of the Code (10 ILCS 5/10-4 (West 2002)) in his objection. Respondents do not challenge the applicability of either section 7-10 or section 10-4 to this case. "Section 10-4 applies only to persons seeking nomination as independent or nonpartisan candidates in a general election." (Emphasis added.) Wollan v. Jacoby, 274 Ill.App.3d 388, 395, 210 Ill.Dec. 841, 653 N.E.2d 1303 (1995). Section 7-10 states that "[t]he name of no candidate for nomination, or State central committeeman, or township committeeman, or precinct committeeman, or ward committeeman or candidate for delegate or alternate delegate to national nominating conventions, shall be printed upon the primary ballot unless a petition for nomination has been filed in his behalf as provided in this Article in substantially the following form." (Emphasis added.) 10 ILCS 5/7-10 (West 2002); see Lewis v. Dunne, 63 Ill.2d 48, 52, 344 N.E.2d 443 (1976) (stating that the "general purpose of section 7-10 and related provisions of the Election Code is to provide an orderly procedure whereby qualified persons seeking public office may enter primary elections" (emphasis added)). Therefore, because Marquez's petition sought nomination as a nonpartisan candidate in the primary, not the general election, we prefer to analyze this case under section 7-10. However, even if section 10-4 were applicable, our analysis and result would be the same, as section 10-4 also requires that "[a]ll petitions for nomination under this Article 10 for candidates for public office in this State, shall in addition to other requirements provided by law, be as follows: Such petitions shall consist of sheets of uniform size and each sheet shall contain, above the space for signature, an appropriate heading, giving the information as to name of candidate or candidates in whose behalf such petition is signed; the office; the party; place of residence; and such other information or wording as required to make same valid, and the heading of each sheet shall be the same." (Emphasis added.) 10 ILCS 5/10-4 (West 2002); see Lucas v. Lakin, 175 Ill.2d 166, 167-68 n. 1, 221 Ill.Dec. 834, 676 N.E.2d 637 (1997).

In Lewis, our supreme court addressed whether the petitioner's nominating papers were invalid when the statement of candidacy did not correctly list the office that the petitioner sought. The petitioner indicated on his petitions for nomination that he was running for "`Judge of the Appellate Court of Illinois, First Judicial District, to fill the vacancy created by the retirement of the Honorable Robert E. English.'" Lewis, 63 Ill.2d at 49-50, 344 N.E.2d 443. The statement of candidacy, however, indicated the office sought as "`Judge of the Appellate Court of Illinois, First Judicial District.'" Lewis, 63 Ill.2d at 50, 344 N.E.2d 443.

As we noted above, the Lewis court stated that the "general purpose of section 7-10 and related provisions of the Election Code is to provide an orderly procedure whereby qualified persons seeking public office may enter primary elections." Lewis, 63 Ill.2d at 52,344 N.E.2d 443. The court then stated that nominating petitions and statements of candidacy each serve particular purposes in regard to the general purpose. Lewis, 63 Ill.2d at 52,344 N.E.2d 443. Further, the court held that "[w]hile their sufficiency must be determined with reference to the particular function each was designed to accomplish, it was not intended that for all purposes they should be considered separate and apart as if the other did not exist." Lewis, 63 Ill.2d at 52-53,344 N.E.2d 443. Looking at the petitions for nomination and the statement of candidacy, the court determined that there was "no conflict or inconsistency between the description of the office in the petitions signed by electors and the statement of candidacy" and that "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. In so holding, the court stated that the apparent purpose of requiring a statement of candidacy was to obtain a sworn statement from the candidate establishing his qualifications to enter the primary election for the office he seeks. Lewis, 63 Ill.2d at 53,344 N.E.2d 443. The court found that the error in the office sought on the statement of...