Sorock v. State Bd. of Elections

Decision Date13 July 2012
Docket NumberNo. 1–11–2740.,1–11–2740.
Citation975 N.E.2d 313,2012 IL App (1st) 112740,363 Ill.Dec. 511
PartiesHerbert SOROCK, Petitioner–Appellant pro se, v. ILLINOIS STATE BOARD OF ELECTIONS, and Citizens for Wilmette Schools, Gail Thomason, Chair, Respondents–Appellees.
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

Herbert Sorock, Wilmette, appellant pro se.

Michael J. Kasper, Chicago, for appellee Citizens for Wilmette Schools.

Lisa Madigan, Attorney General, Chicago (Michael Scodro, Solicitor General, and Timothy K. McPike, Assistant Attorney General, of counsel), for appellee Illinois State Board of Elections.

OPINION

Justice McBRIDE delivered the judgment of the court, with opinion.

[363 Ill.Dec. 512]¶ 1 Petitioner pro se Herbert Sorock, a resident of Wilmette, appeals from an order of the Illinois State Board of Elections (Board) dismissing his complaint against respondent local political committee Citizens for Wilmette Schools, Gail Thomason, chair (political committee or Citizens), regarding a self-employed Web page designer's voluntary creation of a Web page for the political committee. In this case of first impression, Sorock contends the Illinois Election Code (10 ILCS 5/9–1 et seq. (West 2010)) (Code) required the political committee to report the value of the volunteered services as an in-kind contribution. Section 9–1.4(A)(4) of the Code defines ‘Contribution’ to include “the services of an employee donated by an employer, in which case the contribution shall be listed in the name of the employer, except that any individual services provided voluntarily and without promise or expectation of compensation from any source shall not be deemed a contribution.” 10 ILCS 5/9–1.4(A)(4) (West 2010). The Board's dismissal was based on the Web designer's sworn statement that she was self-employed and had given her services to the committee voluntarily and without promise or expectation of compensation from any source. On direct appeal, Sorock contends the quoted statutory language applies only where there is an employer-employee relationship, it does not concern people who are self-employed, and that the relevant clause sweeps in the Web designer's donated time as something “of value that constitutes an electioneering communication.” 10 ILCS 5/9–1.4(A)(1.5) (West 2010).

¶ 2 On January 19, 2011, the respondent political committee filed a “Form D–1 Statement of Organization” with the Board stating that its organizational purpose was to support the passage of a referendum on the ballot for April 5, 2011. The record on appeal does not disclose the referendum's subject. A political committee which accepts or expends more than $3,000 during any 12–month period must periodically report its contributions and expenditures. 10 ILCS 5/9–1.8 (West 2010)(defining political committees and creating the $3,000 reporting threshold); 10 ILCS 5/9–6 (West 2010) (requiring every contributor to give the political committee's treasurer a detailed account of his or her contribution); 10 ILCS 5/9–7 (West 2010) (requiring treasurer to create and preserve records); 10 ILCS 5/9–10 (West 2010)(requiring treasurer to file reports with the Board). The statutory scheme is intended to preserve the integrity of the electoral process by requiring full public disclosure of the sources and amounts of campaign contributions and expenditures. Walker v. State Board of Elections, 72 Ill.App.3d 877, 881, 29 Ill.Dec. 244, 391 N.E.2d 507, 510 (1979). The legislature intended for Illinois citizens to be informed of the total contributions received and expended by a political committee, the names of significant contributors and of individuals to whom a political committee is indebted. Walker, 72 Ill.App.3d at 881, 29 Ill.Dec. 244, 391 N.E.2d at 510. It was on or about March 31, 2011, that Shari Gottlieb, a self-employed graphics and Web site designer, volunteered her services to design a Web site for the committee, and on March 31, 2011, she sent the committee a notice of an in-kind contribution of $3,435 for the value of her work. The election occurred as scheduled on the 5th of April. On April 15, 2011, the political committee filed a “Form D–2, Report of Campaign Contributions and Expenditures, Quarterly Report,” which included Gottlieb's $3,435 in-kind contribution for “graphic/web design” and identified her as “self-employed” and her occupation as “Graphic/Web Designer.”

¶ 3 On May 6, 2011, Sorock filed a two-count verified complaint with the Board. His first count, which is not at issue here, indicated the committee's Form D–1 incorrectly identified the organization as a “political action committee” rather than a “ballot initiative committee.” The committee responded that it had marked the wrong box on its Form D–1 and it filed an amended form D–1 which corrected the error. Sorock's second count concerned the timing of the committee's disclosure of Gottlieb's work. Section 9–10(c) of the Code requires that, in the 30-day period before an election, any contribution of $1,000 or more from a single source be reported on a Schedule A–1 within two business days after receipt of the contribution. 10 ILCS 5/9–10(c) (West 2010). Sorock alleged the committee should have filed a Schedule A–1 reporting Gottlieb's in-kind contribution before including it in a subsequent quarterly report.

¶ 4 Once a complaint is filed, a closed preliminary hearing is conducted by a hearing officer “to elicit evidence on whether the complaint was filed on justifiable grounds and has some basis in fact and law.” 26 Ill. Adm.Code § 125.252 (2012) (hearing officer shall be appointed and closed preliminary hearing shall be ordered); 26 Ill. Adm.Code § 125.252 (2012) (scope of preliminary hearing); see also 10 ILCS 5/9–21 (West 2010) (upon receipt of complaint, a closed preliminary hearing shall be conducted). The complainant bears the burden of introducing sufficient evidence or information for the Board to conclude that the complaint has been filed on justifiable grounds. 26 Ill. Adm.Code 125.252(c)(4) (2012). The justifiable grounds standard focuses on the factual and legal sufficiency of the complaint. Cook County Republican Party v. Illinois State Board of Elections, 232 Ill.2d 231, 245, 327 Ill.Dec. 531, 902 N.E.2d 652, 661 (2009).

¶ 5 In this case, a hearing officer for the Board conducted a closed preliminary hearing in Chicago on June 13, 2011, and, after his death, a different hearing officer listened to the recorded hearing and filed a written report on July 13, 2011, summarizing the proceedings and offering recommendations to the Board. According to the hearing officer's report, the respondent's attorney had indicated that the committee did not neglect to file a Schedule A–1 regarding Gottlieb's work; rather, it no longer considered her services to be a contribution within the meaning of the Code and had filed an amended first quarterly report on June 10, 2011, which omitted an entry regarding her. The committee's counsel referred to section 9–1.4(A) (4) of the Code, which we quoted at the outset of this opinion, and tendered Gottlieb's affidavit stating that she volunteered her Web page designing time with no promise or expectation of payment, the work was done from her home, and she incurred no out-of-pocket expense. Counsel argued that personal services do not have to be reported as contributions and that it is a first Amendment right to voluntarily provide service. Counsel said his client had simply misunderstood the law when it initially reported the value of Gottlieb's work as a contribution. The hearing officer found this argument persuasive and recommended that the Board determine that although Sorock's complaint had been made in good faith at the time, the fact that the contribution had been removed by the committee's amended quarterly filing and Gottlieb had provided an affidavit meant that a Schedule A–1 was unnecessary, the complaint now lacked justifiable grounds, and no further action needed to be taken.

¶ 6 The established procedures call for the general counsel for the Board to review the hearing officer's recommendations and the evidence presented at the closed preliminary hearing. 26 Ill. Adm.Code § 125.253 (2012) (responsibilities of the general counsel). The general counsel then makes his or her own recommendation to the Board. 26 Ill. Adm.Code § 125.253 (2012). In this instance, the general counsel concurred with the hearing officer's recommendation.

¶ 7 The Board must then decide whether the complaint was filed on justifiable grounds. 26 Ill. Adm.Code § 125.262(a) (2012). “If the Board determines that the complaint was filed on justifiable grounds, and if the respondent is unwilling to take action necessary to correct the violation or refrain from the conduct giving rise to the violation, it shall order a public hearing * * *.” 26 Ill. Adm.Code § 125.262(a) (2012). “If the Board fails to determine that the complaint has been filed on justifiable grounds, it shall dismiss the complaint without further hearing.” 10 ILCS 5/9–21 (West 2010); Cook County Republican Party, 232 Ill.2d at 239–40, 327 Ill.Dec. 531, 902 N.E.2d at 658 (interpreting the statutory language as amended in 2003). On August 19, 2011, in a closed session of its regular monthly meeting, the Board considered the hearing officer's report, the general counsel's recommendations, and the parties' oral arguments, and then issued a final order finding in relevant part that the second count of Sorock's complaint was not filed on justifiable grounds.

¶ 8 On August 25, 2011, Sorock filed a motion for the Board's reconsideration, in which he argued that Gottlieb's donation did not come within the statute cited by the committee, because that language was applicable only to employer-employee relationships and Gottlieb had no such relationship. Sorock also argued Gottlieb's donation was a reportable contribution as an “electioneering communication” within the meaning of section 9–1.4...

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    ...by requiring full public disclosure of the sources and amounts of campaign contributions and expenditures." Sorock v. Illinois State Board of Elections , 2012 IL App (1st) 112740, ¶ 2, 363 Ill.Dec. 511, 975 N.E.2d 313 (citing Walker v. State Board of Elections , 72 Ill. App. 3d 877, 881, 29......
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