Zurek v. Franklin Park S Electoral Bd.

• Decision Date: 04 November 2014
• Docket Number: 1–14–3062.,Nos. 1–14–2618,s. 1–14–2618
• Citation: 22 N.E.3d 90
• Parties: Ken ZUREK, Petitioner–Appellant, v. The FRANKLIN PARK OFFICERS ELECTORAL BOARD, and Its Members Barrett F. Pedersen, Individually and as Chairman, John C. Johnson, Individually and as Member, Tommy Thomson, Individually and as Franklin Park Village Clerk; Randall Petersen, Individually and as Objector, and Robert Godlewski, Individually and as Objector, Respondents–Appellees (David Orr as Cook County Clerk, and Lisa Madigan as Illinois Attorney General, Respondents).
• Court: United States Appellate Court of Illinois

22 N.E.3d 90

Ken ZUREK, Petitioner–Appellant

v.The FRANKLIN PARK OFFICERS ELECTORAL BOARD, and Its Members Barrett F. Pedersen, Individually and as Chairman, John C. Johnson, Individually and as Member, Tommy Thomson, Individually and as Franklin Park Village Clerk; Randall Petersen, Individually and as Objector, and Robert Godlewski, Individually and as Objector, Respondents–Appellees (David Orr as Cook County Clerk, and Lisa Madigan as Illinois Attorney General, Respondents).

Nos. 1–14–2618

1–14–3062.

Appellate Court of Illinois, First District, Fifth Division.

Nov. 4, 2014.

Rehearing Denied Dec. 5, 2014.

Kenneth P. Zurek, of Franklin Park, for appellant.

Patrick G. Connelly, of Peterson, Johnson & Murray, LLC, of Chicago, and Burton S. Odelson and Sara M. Gallagher, both of Odelson & Sterk, Ltd., of Evergreen Park, for appellees.

OPINION

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

¶ 1 Petitioner Ken Zurek and others collected over 700 signatures for the purpose of placing on the ballot the question of whether there should be term limits for Franklin Park village officials. Respondents Randall Petersen and Robert Godlewski filed objections, and the Franklin Park Electoral Board sustained their objections and refused to place the question on the ballot. The circuit court affirmed. For the following reasons, we reverse and remand for further proceedings.

¶ 2 BACKGROUND

¶ 3 I. Proposed Referendum Question & Objections

¶ 4 In June and July, 2014, Ken Zurek and others collected over 700 signatures in order to place on the ballot for the general election on November 4, 2014, “the following binding referendum question of public policy”:

“Shall the Village of Franklin Park enact term limits prohibiting all people from serving more than eight (8) years as Village Trustee, Village President and Village Clerk, including service as Village Trustee, Village President and Village Clerk, effective immediately upon approval and passage of this binding referendum?”

¶ 5 On August 11, 2014, Randall Petersen and Robert Godlewski filed an “Objectors' Petition” to Zurek's proposed referendum question. They did not object to the number of signatures or the validity of those signatures. Their objections were directed solely at the validity of the question itself. Primarily, they objected on the ground that the question referred to years rather than terms of service and that, thus, the question was not “tied to the regular election cycles.” They argued that, as a result, the question was ambiguous as to what would happen when an officer reached the eight-year limit and ambiguous as to whether the referendum had the power to nullify the results of the prior 2013 election.

¶ 6 II. Appeal No. 1–14–2618

¶ 7 A. Petition

¶ 8 Ken Zurek filed a petition with the circuit court on August 15, 2014, seeking the replacement of all three members of the Franklin Park Electoral Board with three public members, claiming that it was to ensure a fair and impartial hearing of the objections to his proposed term limit referendum pending before the Franklin Park Electoral Board.

¶ 9 In his petition, he alleged the following facts.

¶ 10 On July 28, 2014, Zurek and Peter Negron, who is not a party to this consolidated appeal, filed a proposed “referendum question of public policy” with the Franklin Park village clerk which asked whether Franklin Park should enact term limits prohibiting all the village's elected officials from serving more than eight years and, on August 11, 2014, Randall Petersen and Robert Godlewski filed a petition objecting to the referendum question.

¶ 11 Franklin Park has an electoral board whose three members are: (1) the village president, Barrett F. Pedersen; (2) a village trustee, John C. Johnson; and (3) the village clerk, Tommy Thomson. If the proposed term-limit referendum is passed, it would preclude all three of them from running for their positions again in 2017 and thereafter.

¶ 12 Pedersen, as the village president, is a salaried employee and has announced that he is running again for village president in 2017, and he has formed a political committee to achieve that end.

¶ 13 John C. Johnson, as a village trustee, and Tommy Thomson, as the village clerk, are also salaried employees.

¶ 14 Attached to the petition were several documents. The first exhibit included, among other things, a copy of an amendment, dated February 10, 2014, of the “Statement of Organization” for “Friends of Barrett Pedersen,” which stated that the office he was seeking was “Franklin Park Mayor 2017.”

¶ 15 The second exhibit was a copy of a Herald Journal article from July 31, 2014, entitled: “Petitions seek term limit referendum in Franklin Park.” The article described Zurek and others as being for it, and then stated: “Trustee John Johnson sees it differently.” The article then quoted Johnson as stating: “Every two years, people have the opportunity to elect half the board.”

¶ 16 B. Response

¶ 17 The record does not contain any response to the petition by Randall Petersen and Robert Godlewski, the two individuals who filed objections to Zurek's proposed referendum question.

¶ 18 However, on August 25, 2014, the Franklin Park Electoral Board filed a response, which stated:

“The Objections raise only questions of law as to the question itself. There is no attack to signatures, circulators, form of the petition, or the manner of collecting the signatures. The arguments made are all as to the constitutionality and legal import of the question itself. There are no fact questions for the Electoral Board to decide.”

As quoted above, the board's response stated that there were “no fact questions for the Electoral Board to decide” and, thus, the board did not dispute any facts asserted in Zurek's August 15, 2014, petition.

¶ 19 In its response, the board argued that section 10–9(6) of the Election Code expressly limits the grounds on which an electoral board member may be disqualified to only those situations in which an electoral board member “is a candidate for the office with relation to which the objector's petition is filed.” Pub. Act 98–115 (eff. July 29, 2013) (amending 10 ILCS 5/10–9 (West 2012) ). However, since the board chose not to dispute any facts, it did not deny that the three members of the electoral board are candidates for their same positions in the next election.

¶ 20 C. Reply

¶ 21 In his reply, Zurek argued, among other things, that the board lacked standing to defend its own decision in court.

¶ 22 D. Order Appealed from in Appeal No. 1–14–2618

¶ 23 On August 28, 2014, the trial court denied Zurek's petition to disqualify the three-member electoral board, holding:

“1. The Court rules in accordance with 10 ILCS 5/10–9(6)(d) which establishes a process for the substitution of an Electoral Board in the event of a Conflict, and not based upon Cook County Circuit Rule 21 as claimed by Petitioner. See Kaemmerer, 333 Ill.App.3d at 959–60 [267 Ill.Dec. 528, 776 N.E.2d 900] [Kaemmerer v. St. Clair County Electoral Bd., 333 Ill.App.3d 956, 959–60, 267 Ill.Dec. 528, 776 N.E.2d 900 (2002) ].

2. The petitioner has not overcome the ‘presumption of honesty’ by falling to show either ‘dishonesty’ or an ‘unacceptable risk of bias.’ Girot v. Keith, 212 Ill.2d 372 at 380 [289 Ill.Dec. 29, 818 N.E.2d 1232] [Girot v. Keith, 212 Ill.2d 372, 380, 289 Ill.Dec. 29, 818 N.E.2d 1232 (2004) ].

Accordingly, it is hereby ordered that petitioners request to disqualify the board is denied.”

¶ 24 This order was entered in case No. 14 COEL 19, and it is the subject of appeal No. 1–14–2618. On August 29, 2014, Zurek filed a notice of appeal from this order, which asked this court:

“to reverse the above-cited Circuit Court Final Order [filed August 28, 2014] and remand this cause with directions to the Circuit Court of Cook County in Illinois to:

(1) Enter an order replacing the entire Franklin Park Electoral Board with public members forthwith, and

(2) Should this appeal be considered mooted the Appellate Court should decide this appeal under the public interest doctrine.”

¶ 25 The notice of appeal in appeal No. 1–14–2618 does not list any defendants and instead is captioned “in the matter of” Zurek's term limit petition and his request to replace the Franklin Park Electoral Board with public members.

¶ 26 III. Appeal No. 1–14–3062

¶ 27 On August 26, 2014, which was two days before the trial court's order in appeal No. 1–14–2618, Zurek filed a motion with the electoral board to strike the objectors' petition alleging numerous defects, including: (1) that the objectors are not legal voters as expressly required by the Election Code; (2) that the objectors do not allege any actual conflict if the referendum question is applied to current Franklin Park officers; (3) that, since the term of office for the Village President, Trustee and Clerk remains four years, the referendum's eight-year limit works perfectly with the existing election cycle; (3) that the referendum prohibits an individual from serving more than two terms; and (4) that a hypothetical conflict in some future election is not enough to defeat the will of the over 700 voters who signed in favor of the referendum, without a single signature challenged.

¶ 28 Zurek attached as an exhibit documents showing that the voters of the Village of Niles passed in the April 9, 2013, general election a referendum which was worded almost exactly the same as Zurek's proposed referendum. The Niles referendum asked: “Shall the Village of Niles enact term limits prohibiting all people from serving more than 15 years on the Village of Niles Board of Trustees, including service as President/Mayor of the Village and Village Board, effective immediately upon approval and passage of this binding referendum?”

¶ 29 On August 26, 2014, Zurek also filed: (1) written objections to the composition of the board, in which he asked the three board members to recuse themselves so that they could be replaced with public members; (2) a motion to disqualify...