                          2014 IL App (1st) 142618
                       Nos. 1-14-2618, 1-14-3062 (cons.)
                        Opinion filed November 4, 2014

                                                              FIFTH DIVISION

                                    IN THE

                     APPELLATE COURT OF ILLINOIS

                               FIRST DISTRICT

KEN ZUREK,                                )   Appeal from the Circuit Court
                                          )   of Cook County.
      Petitioner-Appellant,               )
                                          )
      v.                                  )   Nos. 14 COEL 19, 14 COEL 25
                                          )
THE FRANKLIN PARK OFFICERS                )
ELECTORAL BOARD, and Its Members )            The Honorable
BARRETT F. PEDERSEN, Individually         )   James A. Zafiratos and
and as Chairman, JOHN C. JOHNSON,         )   Paul A. Karkula,
Individually and as Member, TOMMY         )   Judges, presiding.
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).                       )


            JUSTICE GORDON delivered the judgment of the court, with opinion.
            Justices McBride and Reyes concurred in the judgment and opinion.
     Nos. 1-14-2618, 14-3062 (cons.)

                                        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

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          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

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          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



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          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 Municipal Officers Electoral Board

          for the Village of Franklin Park 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."

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       Nos. 1-14-2618, 14-3062 (cons.)

          10 ILCS 5/10-9 (eff. July 29, 2013).       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

                [Kaemmerer v. St. Clair County Electoral Bd., 333 Ill. App. 3d 956, 959-

                60 (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 [Girot v. Keith, 212 Ill. 2d 372, 380

                (2004)].



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       Nos. 1-14-2618, 14-3062 (cons.)

                   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

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       Nos. 1-14-2618, 14-3062 (cons.)

          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 the board's attorney; and (3) a motion to strike various rules of the

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       Nos. 1-14-2618, 14-3062 (cons.)

           Franklin Park Electoral Board, such as Rule No. 10 which authorized the board

           to retain an attorney for the purpose of defending the board's decision in court.1

           He moved to strike on the ground that the board had no standing to act as an

           advocate.

¶ 30             The board held public hearings on Petersen's and Godelewski's objections

           to Zurek's referendum question on August 18, September 11 and September 17,

           2014, and allowed public comment on September 11. Those present at the

           public hearings included Zurek and Patrick G. Connelly, who was the counsel

           for Petersen and Godlewski.

¶ 31             At the public hearing on September 11, 2014, the board members

           considered Zurek's motion that they recuse themselves, and they voted to adopt

           the August 28, 2014, trial court order which had denied this same request in the

           other case. Zurek objected and asked the board members to reconsider; and the

           board voted again to deny his recusal motion.

¶ 32             On September 17, 2014, the Franklin Park Electoral Board, consisting of

           Pedersen, Thomson and Johnson, issued an 11-page document entitled

           "Findings and Decision." 10 ILCS 5/10-10 (eff. July 1, 2014) ("The electoral

           board must state its findings in writing, and must state in writing, which
       1
        The rules are in the appellate record, and Rule No. 10 provides in relevant part:
       "The Board's attorney is authorized and directed to defend the Board's decision if a
       petition for judicial review is filed and to defend the Board in any litigation that
       may arise thereafter."
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       Nos. 1-14-2618, 14-3062 (cons.)

          objections, if any, it has sustained."). In this decision, the board found that the

          "Electoral Board was legally constituted according to the laws of the State of

          Illinois," and it denied Zurek's objections to the composition of the board. The

          primary reason which it provided in support of its denial was: "In light of the

          [Judge] Zafiratos Order [entered August 28, 2014], Proponent's Electoral Board

          Motion is denied." In addition, the board observed that the "Election Code

          contains no mechanism for electoral board members to individually recuse

          themselves from service for any reason."

¶ 33            With respect to Petersen and Godlewski's objections, the board sustained

          their objections:

                "with the result that the Petition for Referendum is found INVALID, in

                conformity with the findings above, and that the Proponent's referendum

                question shall not appear on the ballot for the November 4, 2014, General

                Election."

¶ 34            On September 18, 2014, the next day after the board issued its decision,

          Zurek petitioned the circuit court for judicial review. 10 ILCS 5/10-10.1 (West

          2012) (an "objector aggrieved by the decision of an electoral board may secure

          judicial review of such decision in the circuit court" by filing "a petition with

          the clerk of the court" and serving a copy "upon the electoral board and other

          parties to the proceeding"). The requested relief included that, if it should "be

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       Nos. 1-14-2618, 14-3062 (cons.)

          rendered impossible for the term limit referendum to be included on the

          November 4, 2014 general election ballot then the court should enter an order

          directing the Cook County Clerk to include the term limit referendum on the

          ballot for the next scheduled general election."

¶ 35            On September 25, 2014, Petersen and Godlewski, the two objectors, filed

          a motion to dismiss Zurek's petition for lack of subject matter jurisdiction

          because Zurek allegedly failed to file proof of service. The attorney and law

          firm that filed an appearance in this case on behalf of the Village of Franklin

          Park was the same attorney and law firm that filed this motion on behalf of the

          objectors. The board also joined the objectors' motion.

¶ 36            The trial court affirmed the decision of the board less than a month later,

          on October 7, 2014. At the hearing, the court stated that it would not consider

          the "issue regarding the composition of the Board," because that issue had

          already been decided by another judge. The next day, on October 8, 2014,

          Zurek filed a notice of appeal from that decision. 10 ILCS 5/10-10.1 (West

          2012) (the trial court "shall make its decision promptly"). This became appeal

          no. 1-14-3062.

¶ 37            A day after filing appeal no. 1-14-3062, Zurek filed a motion on October

          9, 2014, with the appellate court to consolidate both appeals, which this court

          granted on October 10, 2014. This court also ordered an expedited briefing

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       Nos. 1-14-2618, 14-3062 (cons.)

          schedule, with appellant's consolidated brief due Wednesday, October 15, 2014,

          appellee's consolidated brief due Monday, October 20, 2014, and no reply brief

          allowed. Early voting began in Cook County on Monday, October 20, 2014.

¶ 38            The petition in circuit court no. 2014 COEL 25 and the subsequent notice

          of appeal for no. 1-14-3062 includes as defendants: (1) Randall Petersen and

          Robert Godlewski, the two objectors to Zurek's proposed referendum; (2) David

          Orr, the Cook County Clerk; and (3) Lisa Madigan, the Illinois Attorney

          General. Zurek's petition explains that he named: (1) David Orr because, in

          Orr's capacity as County Clerk, he is required to certify and print the ballot for

          the November 4, 2014, election in Franklin Park; and (2) Lisa Madigan

          because, in her capacity as attorney general, she is required to defend the

          constitutionality of Illinois statutes. Although Lisa Madigan and David Orr

          filed appearances in the court below, they chose not to file briefs with this

          court. David Orr filed an answer in the trial court stating that he had "no

          interest" in the issue. Thus, they are not parties to this appeal.

¶ 39                                        ANALYSIS

¶ 40            As we stated above, 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

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       Nos. 1-14-2618, 14-3062 (cons.)

          Board sustained their objections and did not place the question on the ballot.

          The circuit court affirmed. For the following reasons, we reverse and remand

          for further proceedings.

¶ 41                                        I. Standing

¶ 42            As a preliminary issue, petitioner Zurek argued in his appellate brief that

          the board lacked standing to file a brief in the trial court. In addition, he filed an

          appellate motion stating that the board lacked standing in this court and

          requesting that we disregard the board's appellate brief. He argued that "for the

          Franklin Park Municipal Officers Electoral Board to act as [an] advocate in this

          appeal is just as ludicrous as if [the trial judges] would hire attorneys to file

          briefs in their behalf in support of their decisions." The board chose not to

          address the standing issue in its appellate brief, but it did file a separate

          response to the motion. We took the motion and response under advisement to

          be decided in this opinion and, for the reasons discussed below, we conclude

          that the board has standing and, even if it does not have standing, it would not

          affect our decision in this case. Sakonyi v. Lindsey, 261 Ill. App. 3d 821, 823

          (1994) (determination of whether the board has standing to defend its decision

          does not affect the outcome of the appeal).

¶ 43            In Bendell v. Education Officers Electoral Board for School District 148,

          338 Ill. App. 3d 458 (2003), this court addressed the issue of: "whether the

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       Nos. 1-14-2618, 14-3062 (cons.)

          Board and its members have standing to appeal the circuit court's reversal of the

          Board's decision." Bendell, 338 Ill. App. 3d at 460. However, in the case at

          bar, the issue is whether the board can file a brief and argue its position as a

          nominal defendant.

¶ 44            In Bendell, we found that:

                   "[T]he Election Code does not expressly or implicitly authorize the

                Board to assume the role of advocate for the purpose of prosecuting an

                appeal. See 10 ILCS 5/1-1 et seq. (West 1996); Kozenczak, 299 Ill. App.

                3d at 207. Instead, the Election Code only authorizes the Board to

                conduct hearings, administer oaths, subpoena and examine witnesses,

                subpoena documentary evidence and pass upon objections to nomination

                petitions and objections to petitions for the submission of questions of

                public policy. See 10 ILCS 5/10-9, 10-10, 28-4 (West 1996); Kozenczak,

                299 Ill. App. 3d at 207. The court further held that the Board functions in

                an adjudicatory or quasi-judicial capacity, and that to allow the Board to

                assume the role of advocate would compromise the Board's required duty

                of impartiality. Kozenczak, 299 Ill. App. 3d at 207. The court further

                stated that the Board was not a party before an administrative agency, nor

                was it personally aggrieved by the reversal of its decision. Kozenczak,

                299 Ill. App. 3d at 207.      We find the reasoning in Kozenczak and

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       Nos. 1-14-2618, 14-3062 (cons.)

                conclude, therefore, that the Board lacks standing to prosecute this

                appeal." Bendell, 338 Ill. App. 3d at 460.

¶ 45            The above quote discusses sections of the Code as they existed in 1996.

          However, there have been no changes to these sections of the Code which affect

          our decision. See 10 ILCS 5/10-9 (eff. July 29, 2013); 10-10 (eff. July 1,

          2014); 28-4 (eff. Dec. 13, 1986).

¶ 46            In the above quote, we relied extensively on the Kozenczak case in which

          the appellate court ruled, as we did in Bendel, that the electoral board lacked

          standing to prosecute an appeal. Kozenczak, 299 Ill. App. 3d at 207 ("the Board

          lacks standing to prosecute this appeal").

¶ 47            There are many appeals in which the electoral board has filed a brief; but

          these are primarily cases in which the appellee did not challenge the board's

          standing and thus standing was not an issue in those appeals. E.g., Burke v.

          Electoral Board of Village of Bradley, 2013 IL App (3d) 130141, ¶ 32 (the

          electoral board appears to have filed an appellate brief because the court stated

          that "[n]either the Electoral Board nor the objector has identified a single case"

          with a particular holding; but standing was not raised as an issue).

¶ 48            Similarly, the Kozenczak court observed: "While the Board cites several

          cases in which an electoral board appealed the reversal of its decision to the

          appellate court [citations], we find each of those cases to be inapposite. The

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       Nos. 1-14-2618, 14-3062 (cons.)

          appellee never challenged the electoral board's standing in those cases, and,

          thus, standing was never an issue on appeal." Kozenczak, 299 Ill. App. 3d at

          207 (citing El-Aboudi v. Thompson, 293 Ill. App. 3d 191, 227 (1997); Thomas

          v. Powell, 289 Ill. App. 3d 143 (1997); Allord v. Municipal Officers Electoral

          Board for the Village of South Chicago Heights, 288 Ill. App. 3d 897 (1997);

          and Schumann v. Fleming, 261 Ill. App. 3d 1062 (1994)).

¶ 49            The board failed to cite any authority to support its position that it has

          standing to file a brief and plaintiff cannot cite a case where the board was

          prohibited from filing a brief. The board's response asserts that a response by an

          electoral board is filed "virtually every time an electoral board matter is

          appealed," and that its counsel is "counsel to many electoral boards during

          election cycles." In addition, we cannot find an Illinois case that states an

          electoral board cannot file a brief when it has been made a nominal defendant in

          a lawsuit. The board is not required to be made a defendant in this appeal. 10

          ILCS 5/10-10.1 (West 2012) (although the board must be served with a copy of

          the petition, the Election Code does not require it to file an answer or be named

          as a defendant). However, if a plaintiff joins them as a defendant, they should

          be able to respond by way of filing a brief.

¶ 50            In Speck v. Zoning Bd. of Appeals of City of Chicago, 89 Ill. 2d 482, 485-

          86 (1982), our supreme court analyzed the powers and responsibilities of the

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          zoning board as set forth in the Chicago zoning ordinance, and concluded that a

          zoning board lacked standing to prosecute an appeal from a reversal of its own

          decision, since the board functioned in an adjudicatory or quasi-judicial

          capacity and the ordinance did not authorize the board, either explicitly or

          implicitly, to act as an advocate. Speck, 89 Ill. 2d at 485-86.

¶ 51            From this Speck line of cases, our supreme court subsequently carved out

          an exception in Braun v. Retirement Board of Firemen's Annuity & Benefit

          Fund, 108 Ill. 2d 119, 128 (1985). In Braun, the supreme court observed that

          the retirement board, unlike the zoning board in Speck, had extensive

          managerial responsibilities so that it was more than a tribunal. Braun, 108 Ill.

          2d at 128.

¶ 52            However, the Kozenczak court expressly held that the Braun exception

          does not apply to election boards, for the following reasons:

                    "Like the zoning ordinance in Speck, the Election Code (10 ILCS 5/1-

                1 et seq. (West 1996)) does not expressly or implicitly authorize the

                Board 'to assume the role of advocate for the purpose of prosecuting an

                appeal.' See Speck, 89 Ill. 2d at 485. Instead, the Election Code only

                authorizes the Board to conduct hearings, administer oaths, subpoena and

                examine witnesses, subpoena documentary evidence, and pass upon

                objections to nomination petitions and objections to petitions for the

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                submission of public policy. See 10 ILCS 5/10-9, 10-10, 28-4 (West

                1996). Thus, like the zoning board in Speck, the Board here functions 'in

                an adjudicatory or quasi-judicial capacity,' and to allow the Board to

                assume the role of advocate would compromise the Board's required duty

                of impartiality. See Speck, 89 Ill. 2d at 485-86. ***

                    Furthermore, unlike the retirement board in Braun, there is no

                evidence that the Board in this case '[had] extensive managerial

                responsibilities [so that it was] more than a tribunal.' Braun, 108 Ill. 2d at

                128. In fact, the Election Code provides otherwise. Therefore, Braun is

                distinguishable, and the Board lacks standing to prosecute this appeal

                according to Speck." Kozenczak 299 Ill. App. 3d at 207.

          Thus, the Braun exception does not apply to the case at bar, and the Speck line

          of cases concerns standing to appeal, not standing to file a brief when the board

          is made a nominal defendant in a lawsuit.

¶ 53            The only case cited by the board in its response to Zurek's motion is

          Kozenczak. In its response, the board argues that, since it was named as a

          respondent, it therefore has standing to file a brief.

¶ 54                The only statutory section cited by the board in its response is section

          10-10.1 of the Election Code (10 ILCS 5/10-10.1 (West 2012)), which governs

          judicial review of electoral board decisions and which, the board argues,

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          authorizes it to "act[] as a Respondent." However, this section does not say

          that. This section directs the objector to serve a copy of his or her petition on

          the electoral board which, in turn, then triggers the board's duty to file the

          record of proceedings with the clerk of the court. 10 ILCS 5/10-10.1 (West

          2012). This section specifically provides: "No answer to the petition need be

          filed ***." 10 ILCS 5/10-10.1 (West 2012). There is nothing in this section

          which confers standing on the board to act as an advocate for its administrative

          decision in subsequent court proceedings. C.f. Bettis v. Marsaglia, 2013 IL

          App (4th) 130145, ¶ 27 (the Election Code does not require the naming of the

          electoral board and its members in the caption of the petition for judicial

          review).

¶ 55            We continue to adhere to the view we expressed in Bendell that electoral

          boards must remain impartial and cannot simultaneously serve as impartial

          adjudicators while appealing the reversal of their own decisions. However, as

          we have previously pointed out, plaintiff made the board a nominal defendant

          when he did not have to do so, and as a result, the board should have standing to

          file a brief. Thus, the Franklin Park Electoral Board and its three members,

          Barrett F. Pedersen, John C. Johnson and Tommy Thompson, have standing to

          pursue this appeal.




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       Nos. 1-14-2618, 14-3062 (cons.)

¶ 56         However, there is no real standing issue in this case. Traditionally, standing

          is a legal concept that applies to one bringing a lawsuit and requires that a party

          have a sufficient personal and direct stake in the controversy to obtain a judicial

          resolution of it. Standing requires that there be some kind of injury or damage

          in fact, such that the party can maintain a suit in the traditional adversarial

          relationship found in the judicial process.

¶ 57         We cannot find any authority for the concept that standing applies to a

          nominal defendant's ability to file a brief in the appellate court, nor has plaintiff

          cited any relevant authority to that issue. 35 Am. Jur. Proof of Facts 3rd 493

          (1996).

¶ 58         However, even if the Board did not have standing, this would not affect the

          standing of the objectors to pursue this appeal. Bendell, 338 Ill. App. 3d at 461

          (the objector "has standing to prosecute this appeal"); Kozenczak, 299 Ill. App.

          3d at 208 (the objector "clearly has standing to prosecute this appeal"). They

          still have standing, and we will consider their brief.

¶ 59                                  II. Standard of Review

¶ 60            Appeal no. 1-14-3062 includes a decision by the electoral board, as well

          as a ruling by the trial court. Typically, when an appeal includes both a

          decision by an electoral board and a ruling by the trial court, we review the

          decision by the electoral board and not the ruling by the trial court. Cinkus v.

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          Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 212

          (2008) ("where a circuit court reviews an electoral board's decision *** we

          review the decision of the board, not the court"). However, the review in this

          case is somewhat convoluted because the board's decision was based on a prior

          trial court's order, which was the order in appeal no. 1-14-2618.

¶ 61            The order in appeal no. 1-14-2618 includes only a ruling by the trial

          court, but both appeals concern the same preliminary question which must be

          answered before the objectors' petition can be addressed, and that is: whether

          the existing three-person electoral board could review the objectors' petition.

¶ 62            First, we observe that " '[j]udical review of the decision of an electoral

          board is intended to remedy arbitrary or unsupported decisions.' " Anderson v.

          McHenry Township, 289 Ill. App. 3d 830, 832 (1997) (quoting Reyes v.

          Bloomingdale Township Electoral Board, 265 Ill. App. 3d 69, 72 (1994)).

          While we review questions of fact deferentially and we will disturb factual

          determinations only if they are against the manifest weight of the evidence, we

          review questions of law de novo. Anderson, 289 Ill. App. 3d at 832 (citing

          Reyes, 265 Ill. App. 3d at 72). A judgment is against the manifest weight of the

          evidence when an opposite conclusion is readily apparent, or when the findings

          appear to be unreasonable, arbitrary or not based upon the evidence. Rhodes v.

          Illinois Central Gulf R.R., 172 Ill. 2d 213, 242 (1996).

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       Nos. 1-14-2618, 14-3062 (cons.)

¶ 63            Since the resolution of this appeal requires us to interpret a section of the

          Election Code, it presents a question of law that we review de novo. Metzger v.

          DaRosa, 209 Ill. 2d 30, 34 (2004). De novo consideration means that we

          perform the same analysis that a trial judge would perform. Khan v. BDO

          Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

             When we construe the meaning of a statute, "the primary objective of this

          court is to ascertain and give effect to the intention of the legislature, and all

          other rules of statutory construction are subordinated to this cardinal principle."

          Metzger, 209 Ill. 2d at 34. "The plain language of the statute is the best

          indicator of the legislature's intent." Metzger, 209 Ill. 2d at 34-35. "When the

          statute's language is clear, it will be given effect without resort to other aids of

          statutory construction."    Metzger, 209 Ill. 2d at 35.       "When interpreting

          legislative enactments, we must read the statute as a whole and not as isolated

          provisions." Metzger, 209 Ill. 2d at 37. In this endeavor, we consider both any

          stated purpose of the particular code, as well as what Illinois courts have

          previously determined the purpose of the code to be. Metzger, 209 Ill. 2d at 37.

          We view the code "as a whole" in order to determine the purpose that the code

          was "primarily designed" to accomplish. Metzger, 209 Ill. 2d at 38.




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       Nos. 1-14-2618, 14-3062 (cons.)

¶ 64                                III. The Election Code

¶ 65            Section 10-9 of the Election Code (the Code) provides that the

          "municipal officers electoral board" will "hear and pass upon objections to the

          nomination of candidates for officers of municipalities." 10 ILCS 5/10-9(3) (eff.

          July 29, 2013).

¶ 66            Section 28-4 states in its first sentence that, in addition to applying to

          candidates, section 10-9 "shall apply to and govern, insofar as may be

          practicable, objections to petitions for the submission of questions of public

          policy" (10 ILCS 5/28-4 (West 2012)), such as the term-limit referendum

          question proposed in the case at bar by Zurek. Section 28-4 also repeats in the

          next paragraph that the "electoral board to hear and pass on objections" to

          public policy questions "shall be the electoral board specified in Section 10-9."

          10 ILCS 5/28-4 (West 2012).

¶ 67         Although the first sentence uses the word "shall," the legislators chose to

          soften the normally mandatory quality of this word with the modifying phrase:

          "insofar as may be practicable." Brennan v. Illinois State Board of Elections,

          336 Ill. App. 3d 749, 759 (2002) ("The use of the word 'shall' is generally

          regarded as mandatory when used in a statutory provision, but can be construed

          as directory depending on the legislative intent."); Courtney v. County Officers

          Electoral Board, 314 Ill. App. 3d 870, 873 (2000) ("The use of the word 'shall'

                                               23
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           in a statutory provision, though generally regarded as mandatory, does not have

           a fixed or inflexible meaning and may, in fact, be construed as meaning 'may'

           depending on the legislative intent.      [Citations.] And the word 'shall,' in

           construing election statutes, has been held directory rather than mandatory in a

           variety of cases."); Glasco Electric Co. v. Department of Revenue, 87 Ill. App.

           3d 1070, 1073 (1980) ("We consider the trend to construe the word 'shall' as not

           being absolutely mandatory to be significant").

¶ 68             Thus, insofar as may be practicable, section 10-9 applies to the case at

           bar, and it provides that a "municipal" electoral board "shall be composed of

           *** the president of the board of trustees" of the village, the "town clerk," and

           "one member of the *** board of trustees *** [who] has served the greatest

           number of years as a member" of the board of trustees." 10 ILCS 5/10-9(3)

           (eff. July 29, 2013).2

¶ 69             In the case at bar, these three individuals are: (1) the village president,

           defendant Barrett F. Pedersen; (2) the village clerk, Tommy Thomson, and (3) a

           village trustee, defendant John C. Johnson. Plaintiff seeks the disqualification

           of all three members.

¶ 70             Section 10-9 provides for disqualification on the following ground:
       2
         Subsection 3 of section 10-9 dictates the composition of "municipal" electoral
       boards, and the definitions section of the Code defines the word "municipality" to
       include a "village" (10 ILCS 5/1-3 (West 2012)), such as the Village of Franklin
       Park.
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       Nos. 1-14-2618, 14-3062 (cons.)

                "In the event that any member of the appropriate board is a candidate for

                the office with relation to which the objector's petition is filed, he shall

                not be able to serve on that board and shall not act as a member of the

                board ***." 10 ILCS 5/10-9 (eff. July 29, 2013).

¶ 71            The Code does not define the phrase "in relation to" quoted above. 10

          ILCS 5/10-9 (eff. July 29, 2013). When a statute or code fails to define a word

          or phrase, then it is the job of the courts to ascertain its meaning. Brandt

          Construction Co. v. Ludwig, 376 Ill. App. 3d 94, 104-05 (2007) (" 'The

          province of statutory interpretation belongs specifically to the courts, which

          have their own expertise in statutory construction.' " (quoting Board of Trustees

          of Addison Fire Protection District No. 1 Pension Fund, 241 Ill. App. 3d 873,

          884 (1993))).

¶ 72            The Code then specifies who the substitute is, if an electoral board

          member is disqualified. 10 ILCS 5/10-9 (eff. July 29, 2013).     However, if the

          vacancies cannot be filled pursuant to section 10-9, then the Code provides that

          the Chief Judge shall appoint public members. 10 ILCS 5/10-9 (eff. July 29,

          2013).

¶ 73            Regarding public members, section 10-9 provides:

                   "Any vacancies on an electoral board not otherwise filled pursuant to

                this Section shall be filled by public members appointed by the Chief

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       Nos. 1-14-2618, 14-3062 (cons.)

                Judge of the Circuit Court for the county wherein the electoral board

                hearing is being held upon notification to the Chief Judge of such

                vacancies. The Chief Judge shall be so notified by a member of the

                electoral board or the officer or board with whom the objector's petition

                was filed. In the event that none of the individuals designated by this

                Section to serve on the electoral board are eligible, the chairman of an

                electoral board shall be designated by the Chief Judge." 10 ILCS 5/10-9

                (eff. July 29, 2013).

¶ 74            In the case at bar, plaintiff seeks the appointment of public members by

          the Chief Judge pursuant to the above-quoted section. Although the section

          quoted above provides for notification of the Chief Judge "by a member of the

          electoral board" (10 ILCS 5/10-9 (eff. July 29, 2013)), it does not state what

          happens when every member of the board is not "eligible to serve on that

          board" because his or her candidacy is in "relation to" the objector's petition.

          10 ILCS 5/10-9 (eff. July 29, 2013) (appearing earlier in the same section).

¶ 75                               IV. General Order No. 21

¶ 76            Pursuant to section 10-9 of the Code, the Chief Judge of the circuit court

          of Cook County issued "General Order No. 21 – Electoral Boards." Cook Co.

          Cir. Ct. G.O. 21 (Feb. 1, 2005). The chief judge of each circuit is permitted to

          issue "general orders" by Illinois Supreme Court Rule 21(c), which states: "The

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       Nos. 1-14-2618, 14-3062 (cons.)

          chief judge of each circuit may enter general orders in the exercise of his or her

          general administrative authority, including orders providing for assignment of

          judges, general or specialized divisions, and times and places of holding court."

          Ill. S. Ct. R. 21(c) (eff. Dec. 1, 2008).

¶ 77            General Order No. 21 states: "The following procedures shall govern the

          nomination by the Chief Judge of a public member of an electoral board

          pursuant to Section 10-9 of the Election Code." Cook Co. Cir. Ct. G.O. 21

          (Feb. 1, 2005).

¶ 78            The order provides that, in addition to a member of the electoral board, "a

          party to a case before the board" may also "notify the Chief Judge of the need to

          appoint a public member," which is what occurred in the case at bar. Cook Co.

          Cir. Ct. G.O. 21 (Feb. 1, 2005). The notification must be in a signed writing

          and may be in the form of a letter, which it was in the case at bar.

¶ 79            The order discusses grounds for disqualification as follows:

                "Members of an electoral board must be disqualified on due process

                grounds if they have a personal or direct pecuniary interest in the

                outcome of a case or if one of the members would properly be called as a

                necessary witness in a case and therefore required to judge his or her own

                testimony.      However, electoral board members do not have a

                disqualifying interest because they may be political allies or opponents of

                                                  27
       Nos. 1-14-2618, 14-3062 (cons.)

                a party in a case or merely because they are familiar with the facts of the

                case. Neither may a statutory member cause a vacancy to be filled by

                this General Order by a personal preference or convenience of that

                statutory member not to sit or merely because a party has requested such

                disqualification." Cook Co. Cir. Ct. G.O. 21 (Feb. 1, 2005).

¶ 80          The above provision could be interpreted as providing additional grounds

          for disqualification not found in the Code, or as simply interpreting the statutory

          phrase "in relation to." 10 ILCS 5/10-9 (eff. July 29, 2013). However, we are

          not called upon to decide this issue in the case at bar, since the statutory

          disqualification applies here.

¶ 81                                   V. "In Relation To"

¶ 82            In this appeal, the objectors did not discuss in their brief whether the

          three existing members of the board were statutorily barred from reviewing the

          objectors' petition. However, the board did address the issue.

¶ 83            Zurek had asserted in his opening appellate brief that this "situation is no

          different than if petitioner had been running for a township office and his

          nominating petition were before the Electoral Board," and cited in support

          Anderson v. McHenry Township, 289 Ill. App. 3d 830 (1997). He further argued

          that the board's assertion that the Code provided no mechanism for recusal was

          false and cited in support section 10-9 of the Code which instructs the chief

                                                28
       Nos. 1-14-2618, 14-3062 (cons.)

          judge to appoint public members (10 ILCS 5/10-9 (eff. July 29, 2013)). See

          Kaemmerer, 333 Ill. App. 3d at 960 ("each member of the Electoral Board

          whose opponent was being challenged should have recused himself from all

          electoral challenges at issue"); Girot v. Keith, 212 Ill. 2d 372, 378 (2004) ("we

          agree with Kaemmerer"). For the following reasons, we agree.

¶ 84                As discussed above, the Code provides that an electoral board member

          may not serve on the board if he or she is "a candidate for the office with

          relation to which the objector's petition is filed." 10 ILCS 5/10-9 (eff. July 29,

          2013). The three members of the board did not deny in their findings and

          decision that they are candidates for re-election. Thus, they are, quite literally,

          "candidate[s] for the office with relation to which the objector[s'] petition is

          filed."

¶ 85                The appellate court in Anderson interpreted the exact same statutory

          section with respect to an almost identical issue. Anderson, 289 Ill. App. 3d at

          833. In Anderson, the petitioner submitted a referendum question to dissolve

          McHenry Township. Anderson, 289 Ill. App. 3d at 831. Since the three

          members of the electoral board were all township officials, the referendum

          meant that all three would lose their township jobs. Anderson, 289 Ill. App. 3d

          at 831.      The appellate court held that section 10-9 of the Code "should have

          been used to excuse the members of the Electoral Board and to appoint

                                                 29
       Nos. 1-14-2618, 14-3062 (cons.)

          disinterested members to hear the objections." Anderson, 289 Ill. App. 3d at

          833. The court reasoned that this "situation is no different than if petitioner had

          been running for a township office and his nominating petition were before the

          Electoral Board," since his referendum question represented a direct challenge

          to the board itself. Anderson, 289 Ill. App. 3d at 833.

¶ 86         The court in Anderson found that the board members of McHenry Township

          had a pecuniary/financial interest in the outcome since they were salaried and

          would face a loss of income if the township was dissolved. The court found that

          the electoral board members should have been excused and disinterested

          members appointed when the petitioner's referendum constituted a direct

          challenge to each member's position and continued employment with McHenry

          Township. Anderson, 289 Ill. App. 3d at 833.

¶ 87            In the case at bar, Zurek's referendum question represents an even more

          direct challenge to the board itself than in Anderson. Based on Anderson and

          the unambiguous language of the statute itself, we conclude that Zurek's

          question is in "relation to" the board members' candidacy for the very offices

          which were specifically named in his question. See 10 ILCS 5/10-9 (eff. July

          29, 2013). Thus, as in Anderson, the board members "should have been"

          replaced by public members, as specified in section 10-9 of the Code (10 ILCS

          5/10-9 (eff. July 29, 2013)). Anderson, 289 Ill. App. 3d at 833.

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       Nos. 1-14-2618, 14-3062 (cons.)

¶ 88                                  VI. Issue Not Before Us

¶ 89             The one issue not presently before this court is: whether Zurek's

          objections bar Godlewski's and Petersen's objection petition; and, if they do not,

          whether the objections of Godlewski and Petersen bar Zurek's proposed

          referendum question from being placed on the ballot in November 2014.

¶ 90             That issue is not before us. The Code sets forth a specific process for

          reviewing objections, even in cases like this one when existing electoral board

          members are not "eligible to serve on that board" (10 ILCS 5/10-9 (eff. July 29,

          2013)). The process specified by the Code is review by substitute members. 10

          ILCS 5/10-9 (eff. July 29, 2013). See also Girot, 212 Ill. 2d at 378. In Girot,

          our supreme court found that a conflict requiring a recusal of a board member

          can arise where an unacceptable risk of bias is present. In this case, in addition

          to the statutory violation, it can be argued that since the board members, all

          salaried employees of Franklin Park, have a possible financial or pecuniary

          interest in whether the referendum is placed on the ballot, there is also an

          unacceptable risk of bias. Where there is an unacceptable risk of bias present,

          the petitioner's right to a fair and impartial hearing is lost.

¶ 91             Thus, Godlewski's, Petersen's and Zurek's objections should be reviewed

          first by a substituted board, as the Code expressly provides; and that is exactly

          what the appellate court ordered when previously faced with this issue.

                                                   31
       Nos. 1-14-2618, 14-3062 (cons.)

¶ 92             In both Kaemmerer v. St. Clair County Electoral Board, 333 Ill. App. 3d

           956, 960 (2002), and Anderson v. McHenry Township, 289 Ill. App. 3d 830,

           834 (1997), the appellate court concluded that the electoral board was

           improperly constituted, as we do in the case at bar. Following that conclusion,

           the Kaemmerer court held:         "Because the Electoral Board was improperly

           constituted its decisions must be vacated and the objections must be heard and

           considered by a properly constituted board." Kaemmerer, 333 Ill. App. 3d at

           961. See also Anderson, 289 Ill. App. 3d at 834. The court reasoned: "Just as

           with the circuit court, our jurisdiction is not original; it is limited and derivative.

           Before this court can act, there must be a decision from a validly constituted

           board followed by a review by and an order of the circuit court in regard to that

           decsion." Kaemmerer, 333 Ill. App. 3d at 961. See also Anderson, 289 Ill. App.

           3d at 834.

¶ 93             The Kaemmerer court held that there were "material issues of fact that

           must be decided by the appropriate hearing body." Kaemmerer, 333 Ill. App.

           3d at 961.3 See also Anderson, 289 Ill. App. 3d (the petitioner who had

           submitted the referendum question had countered his objectors with factual

           allegations, such as that the electoral board had "illegally sampled the
       3
        The Kaemmerer opinion does not state what the "material issues of fact" are.
       Kaemmerer, 333 Ill. App. 3d at 961. The opinion only states that there were
       "objections to the candidates' nominating papers." Kaemmerer, 333 Ill. App. 3d at
       957.
                                                   32
       Nos. 1-14-2618, 14-3062 (cons.)

          unregistered voter cards"). Similarly, in the case at bar, there are material issues

          of fact since Zurek has made factual allegations, such as that the objections to

          his petition are merely hypothetical and that the objectors were not legal voters.

¶ 94            Thus, the main issue before us presently is whether the three current

          members of the Franklin Park Electoral Board should have been replaced by

          public members for the purpose of reviewing the objections and, as we

          concluded above, they should have been. Anderson, 289 Ill. App. 3d at 833.

¶ 95                VII. Public Interest Exception to the Mootness Doctrine

¶ 96            Since it is already Election Day, the Chief Judge cannot appoint public

          members and the newly constituted board cannot then review the objections in

          time to place Zurek's proposed referendum question on the ballot for the

          November 4, 2014, general election. The Election Code provides that "notice

          of public questions shall be required" not "less than 10 days before the date of a

          regular election". 10 ILCS 5/12-5 (West 2012). See also 10 ILCS 5/28-5 (West

          2012) ("Not less than 68 days before a regularly scheduled election, each local

          election official shall certify the public questions to be submitted to the voters

          of or within the political subdivision at that election which have been initiated

          by petitions filed in his office."). We must therefore consider whether the

          question before us has become moot.



                                                 33
        Nos. 1-14-2618, 14-3062 (cons.)

¶ 97             In his notice of appeal, Zurek asked us specifically to consider whether

           we should decide this appeal pursuant to the public interest exception to the

           mootness doctrine, even if its timing rendered it otherwise moot. We agree that

           the public interest exception applies. As the Anderson court concluded when

           considering a virtually identical issue, "[t]his matter clearly falls under the

           public interest exception to the mootness doctrine, in that it presents an

           important public issue, evasive of review and capable of repetition, which,

           because of the disparate resolutions by electoral boards of similar issues,

           requires authoritative guidance." Anderson, 289 Ill. App. 3d at 832. See also

           Girot, 212 Ill. 2d at 382-83 (deciding to review an election question pursuant to

           the public interest exception); Bettis, 2013 IL App (4th) 130145, ¶ 27 (same).

¶ 98                          VIII. Remand for Further Proceedings

¶ 99             When Zurek petitioned the circuit court for judicial review (10 ILCS

           5/10-10.1 (West 2012)), his requested relief included that, if it should "be

           rendered impossible for the term limit referendum to be included on the

           November 4, 2014 general election ballot then the court should enter an order

           directing the Cook County Clerk to include the term limit referendum on the

           ballot for the next scheduled general election."

¶ 100            In both Kaemmerer, 333 Ill. App. 3d at 960, and Anderson, 289 Ill. App.

           3d at 834, after concluding that the electoral board was improperly constituted

                                                 34
        Nos. 1-14-2618, 14-3062 (cons.)

           and that the issue should be reviewed first by a newly constituted board, the

           appellate court remanded to allow that process to happen.

¶ 101            In Kaemmerer, the appellate court issued the following ruling:            "we

           remand this case to the Electoral Board for a hearing de novo before an

           Electoral Board composed of impartial members, and we direct the chief judge

           of the *** circuit court to appoint replacement members to the Electoral Board

           pursuant to section 10-9(6) of the Code. The chief judge and the Electoral

           Board shall each act at the earliest practicable date to ensure a timely

           resolution." Kaemmerer, 333 Ill. App. 3d at 961.

¶ 102            Similarly, in Anderson, 289 Ill. App. 3d at 834, the appellate court

           "remand[ed] for a hearing de novo before an electoral board composed of

           impartial members" and "direct[ed] the Chief Judge of the circuit court *** to

           appoint replacement members to the Electoral Board pursuant to section 10-9 of

           the Election Code [Citation]." The court further held: "If the decision of the

           newly constituted Electoral Board results in the need for a referendum, the

           referendum shall be placed on the ballot of the first election thereafter which

           meets all the relevant statutory requirements of the Election Code." Anderson,

           289 Ill. App. 3d at 834. The holding in Anderson was cited with approval by

           our supreme court in Girot, 212 Ill. 2d at 378.

¶ 103            In the case at bar, we similarly remand with directions, as we instruct

                                                 35
        Nos. 1-14-2618, 14-3062 (cons.)

           below.

¶ 104                                     CONCLUSION

¶ 105            In sum, we conclude: (1) that the board had standing to file a brief as a

           nominal defendant; (2) that the three members of the board be replaced by

           public members for consideration of the referendum question since it is not

           "practicable" for them to rule on a question that is "in relation" to their own

           candidacy; and (3) that, even though consideration of the referendum question,

           the objectors' petition and the objections to the objectors' petition cannot be

           completed in time to place the question on the November 4, 2014, ballot, we

           may still consider the issue pursuant to the public interest exception to the

           mootness doctrine.

¶ 106            For the foregoing reasons, we vacate the September 17, 2014, decision of

           the electoral board and reverse the August 28, 2014, order and the October 7,

           2014, order of the trial court. As the appellate court did in both Anderson and

           Kaemmerer, we remand for a hearing de novo before an electoral board

           composed of impartial members. We direct the Chief Judge of the circuit court

           of Cook County to appoint replacement members to the Franklin Park Electoral

           Board pursuant to section 10-9 of the Election Code. If the decision of the

           newly constituted Franklin Park Electoral Board results in the need for a

           referendum, the referendum shall be placed on the ballot of the first election

                                               36
        Nos. 1-14-2618, 14-3062 (cons.)

           thereafter which meets all the relevant statutory requirements of the Election

           Code. The Chief Judge and the newly constituted Franklin Park Electoral

           Board shall each act at the earliest practicable date to ensure a timely resolution

           of this issue.

¶ 107             Reversed and remanded with directions.




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