                                                   SIXTH DIVISION
                                                   March 16, 2007



No. 1-07-0499

VIRGINIA M. HARMON and DANA P. BAX,     )     Appeal from the
                                        )     Circuit Court of
          Petitioners-Appellees,        )     Cook County
                                        )
     v.                                 )
                                        )
THE TOWN OF CICERO MUNICIPAL OFFICERS   )
ELECTORAL BOARD, ITS MEMBERS, CHAIRMAN )
LARRY DOMINICK, MARILYN COLPO, and in   )
her individual capacity as Town Clerk, )
and JOSEPH VIRRUSO, FERNANDO MORAN, and )
DAVID ORR, COOK COUNTY CLERK,           )     Honorable
                                        )     Mark J. Ballard,
          Respondents-Appellants.       )     Judge Presiding


     JUSTICE McNULTY delivered the opinion of the court:

     The Town of Cicero Municipal Officers Electoral Board struck

the nomination papers for Dana Bax and Virginia Harmon.    Bax and

Harmon petitioned for judicial review of the Board's decision.

The trial court reversed the Board and the Board now appeals.

                             BACKGROUND

     Bax and Harmon filed nomination petitions for election to

the office of trustee for the Town of Cicero, for an election to

take place on February 27, 2007.   Each candidate included in her

petition more than 100 pages of signatures.   Each page bore at

least 1 and no more than 10 purported signatures of voters, along

with the signature of the person who claimed to have circulated

that page of the petition.   Bax claimed that 881 voters in Cicero

indicated their support for her candidacy by signing her
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petition.    Harmon claimed that signatures of 887 voters supported

her nomination.

     Fernando Moran objected to both petitions.      For each

candidate's petition, he specified more than 400 signatures that

he challenged on various grounds.      The parties stipulated that

the nomination petitions needed 555 signatures of voters to

qualify the candidate for the ballot.      Pursuant to the Board's

rules, employees of the county clerk of Cook County, with notice

to both the candidates and the objector, compared the petitions

to voter registration records.    The employees sustained

objections to 197 signatures on Bax's petition and 256 signatures

on Harmon's petition.    The candidates have not challenged the

rulings excluding those signatures.

     The Board held a hearing at which the parties presented

testimony, affidavits and exhibits.      Moran offered into evidence

affidavits of several persons who signed the candidates'

petitions.   All of the affiants identified their signatures on

pages Jose Alanis swore he circulated.      All of the affiants saw

a photograph of Alanis, and all swore that a person other than

Alanis obtained their signatures on the petitions.

     Bax and Harmon objected to the affidavits, claiming that the

unavailability of the affiants for cross-examination deprived

them of due process.    The Board noted that its rules expressly


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permitted the Board to consider affidavits.   The Board reminded

the candidates that the Board had the power to subpoena any

witnesses the parties sought to examine, including the affiants.

The candidates did not seek to subpoena the affiants.

     Instead, Alanis obtained signatures on affidavits from

several other persons listed on petitions he swore he circulated.

In the affidavits those persons swore that Alanis had, in fact,

requested signatures from them on the nominating petitions.

     On January 24, 2007, Alanis testified before the Board that

he personally circulated all of the petition pages that he

signed, and he personally witnessed each signature.   Counsel for

Moran asked Alanis about his preparation for testifying. Alanis

swore that Bax told Alanis to come into court to testify, but she

said nothing more to him.   Bax said nothing about what he should

say to the Board.

     A police officer identified a compact disc as a copy of a

recording made by a surveillance camera in the corridor outside

the courtroom on January 24, 2007, before Alanis started

testifying.   The recording shows Alanis apparently speaking with

Bax as they pass a police officer in the hall.

     Officer Cheryl Walsh, who stood in the corridor outside the

courtroom before Alanis testified on January 24, 2007, swore that

she overheard part of the conversation between Alanis and Bax:


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     "Ms. Bax said to him that they are going to talk to you

     about the signatures.    Alanis replied what if I don't

     remember.   Ms. Bax replied just say yes to everything."

     The Board found that neither Bax nor Harmon had presented

sufficient valid signatures to permit nomination for the office

of trustee.   For each candidate the Board found several

independent bases for holding the nominating petitions

insufficient.    First the Board noted that the 197 invalid

signatures on the Bax petition amounted to 22% of all her

signatures, and the 256 invalid signatures on Harmon's petition

came to 29% of her total.    The Board found that the large

percentage of invalid signatures showed that "those nominating

petitions, in the whole, are tainted by a pattern of fraud, false

swearing and a total disregard for the mandatory requirements of

the Election Code."    On that basis the Board struck all pages of

signatures filed for both candidates.      Without any signatures,

neither candidate qualified for nomination.

     As its second basis for rejecting the nominating papers, the

Board noted that the court clerk rejected 101 signatures on Bax's

petition as invalid because "the purported signatory did not sign

in his or her own proper person."      From Harmon's petition the

court clerk rejected 113 signatures on the same basis.      The Board

members inspected the exhibits and specifically found that some


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of the pages of the petition appeared to have a number of

different signatures written by the same hand.    The handwriting

looked like the signature in the voter registration records for

one of the persons named and not at all like the signatures of

the other persons listed.    Thus, the evidence strongly suggested

that the circulator permitted a single individual to sign

multiple lines of the petition with different names.     The Board

found that the disparity between the signatures on the petitions

and the signatures in voter registration records showed that the

circulator for each such page of the petition acted at least in

"culpable ignorance of the truth *** [with] conscious awareness

of the falsity of those signatures."   On the basis of that

finding, the Board struck all pages of the petition on which any

such signature appeared.    The 101 invalid signatures on the Bax

petition appeared on 54 different pages; without those pages Bax

had fewer than the requisite 555 signatures.    The 113 invalid

signatures on the Harmon petition appeared on 61 different pages;

without those pages Harmon had fewer than 400 signatures.     Thus,

neither candidate had sufficient signatures to qualify the

candidates for nomination.

     The third reason for finding that Harmon did not qualify for

the ballot also derived from a decision to strike specific pages

due to a pattern of fraud and false swearing.    The Board found


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that the county clerk sustained objections to at least half of

the signatures on 25 pages of Harmon's petition.   Those pages

showed a pattern of fraud and false swearing that, according to

the Board, warranted striking all signatures on these pages.

With the 256 signatures the county clerk found invalid,

invalidation of the remaining signatures on those 25 pages left

Harmon with fewer than the requisite 555 signatures.

     The county clerk sustained objections to at least half of

the signatures on 10 pages of Bax's petition.   The Board found

that the pattern of fraud warranted striking all signatures on

those 10 pages.   If the Board struck nothing other than the 197

signatures the county clerk found invalid, and the remaining

signatures on the 10 pages with at least half of the signatures

invalid, Bax would have had enough signatures to qualify.   The

third reason for rejecting Harmon's petition does not directly

apply to Bax's petition.

     The remaining reasons for rejecting the petitions related to

Alanis and the credibility of his attestations on numerous pages

of both petitions that he personally witnessed the signatures of

each of the persons who signed those pages.   The Board relied

primarily on two independent reasons for finding Alanis not

credible and therefore rejecting all signatures on all pages he

signed as circulator.   The Board detailed at length the testimony


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in which Alanis denied that he spoke with Bax before testifying

and the contrary evidence from the surveillance camera and the

testimony of Officer Walsh.   Affidavits Moran obtained from

several persons who signed petitions Alanis claimed he circulated

provided the second independent reason for rejecting all of the

signatures on the pages Alanis signed.    Alanis named himself as

circulator on 20 pages of Bax's petition and 13 pages of Harmon's

petition.   Without the signatures on those pages and the pages on

which the county clerk sustained objections to at least half of

the signatures, Bax did not have the 555 signatures required for

the ballot.   Harmon's petition fell further short of the

requisite number of signatures.

     Bax and Harmon petitioned for judicial review of the Board's

decision.   The court focused on the admission into evidence of

the affidavits Moran presented.    According to the court, the

Board denied the candidates due process of law when it followed

its rules permitting the use of affidavits without requiring

Moran to bring the affiants to the hearing for cross-examination.

The court separately found, without explanation, that the

evidence apart from the affidavits did not sufficiently support

the Board's findings.   The court reversed the decision of the

Board on both the Bax petition and the Harmon petition.     The

Board now appeals.


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                              ANALYSIS

     We review the Board's findings of fact deferentially, and we

will reject those findings only if they conflict with the

manifest weight of the evidence.       King v. Justice Party, 284 Ill.

App. 3d 886, 888 (1996).    Credibility determinations particularly

fall within the Board's purview.       King, 284 Ill. App. 3d at 888.

The Board's interpretations of statutes do not bind the courts.

King, 284 Ill. App. 3d at 888.   We look to administrative review

cases for guidance on procedures for review under the Election

Code (10 ILCS 5/10-10.1 (West 2004)).      See King, 284 Ill. App. 3d

at 888.

     Although we review the Board's decision and not the trial

court's decision (Bergman v. Vachata, 347 Ill. App. 3d 339, 344

(2004)), we comment on the trial court's decision here to provide

guidance in future cases.   The trial court here adopted the

standard of review stated in Samour, Inc. v. Board of Election

Commissioners, No. 101902 (January 19, 2007).      Our supreme court

in Samour deferred to the trial court's factual findings and not

a board's findings expressly because "[t]here [was] no decision

of an administrative agency at issue" in that case.       Samour, slip

op. at 9.   In this case, unlike Samour, the Board rendered a

decision following evidentiary hearings, and the trial court

heard no new evidence.   Therefore, we defer to the findings of


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the Board and not the trial court.

     The trial court here found Moran's affidavits inadmissible.

When the court rejects an evidentiary ruling or a factual finding

of the Board, the court must separately consider the issue of

whether the error requires reversal.      See Johnson v. Human Rights

Comm'n, 318 Ill. App. 3d 582, 587 (2000).      If the factual

findings independent of the error provide a sufficient basis for

the Board's decision, we will affirm the decision despite the

error.   Johnson, 318 Ill. App. 3d at 587.

     Here the trial court found error only in the admission into

evidence of several affidavits.    The Board explained several

separate bases for holding the nominating petitions insufficient.

At least three of the bases for the Board's rulings expressly

relied not at all on any of Moran's affidavits.      The trial court

failed to identify any defect in the Board's findings and

reasoning in support of these other bases for its holding.

     Next we disagree with the trial court's rejection of all of

Moran's affidavits.   Board rules here, as in Bergman, 347 Ill.

App. 3d at 348, expressly permit the Board to rely on affidavits.

The subpoena power here, as in Dombrowski v. City of Chicago, 363

Ill. App. 3d 420, 427 (2005), sufficiently protected the

candidates' rights to due process.      The candidates failed to

exercise the right to subpoena affiants, even after the Board


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reminded them of that right.    The candidates "cannot be deprived

of a right they fail to exercise."     Dombrowski, 363 Ill. App. 3d

at 427.

     The Board provided us with several distinct bases for its

ruling, and the Board clarified which factual findings led to

each basis for its ruling.    We may affirm the Board's decision if

the facts in the record suffice to support any one basis for the

Board's decision.    Younge v. Board of Education of the City of

Chicago, 338 Ill. App. 3d 522, 530 (2003).

     On 25 pages of Harmon's petition and on 10 pages of Bax's

petition, the court clerk found 50% or more of the signatures

invalid.    The evidence in the record sufficiently   supports the

Board's finding that these pages evidence a pattern of false

swearing that warranted the decision to strike those pages

altogether.    See Fortas v. Dixon, 122 Ill. App. 3d 697, 700

(1984); Canter v. Cook County Officers Electoral Board, 170 Ill.

App. 3d 364, 368 (1988).

     The record also supports the decision to strike all pages

Alanis signed as circulator.    The Board based the decision to

strike the pages on the impeachment of his testimony in court.

In particular Alanis testified that Bax said nothing to him to

guide his testimony.    Officer Walsh testified that she overheard

Bax giving Alanis specific directions concerning his testimony,


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and a surveillance camera recording, in the Board's view,

corroborated Officer Walsh's testimony.   The impeachment

concerned Alanis's preparation for testifying.   The preparation

of a witness for testimony qualifies as a proper subject of

cross-examination.   See West Chicago St. R.R. Co. v. Byrne, 85

Ill. App. 488, 493 (1899); People v. Scarpelli, 82 Ill. App. 3d

689, 696 (1980).   The impeachment here significantly undercut the

credibility of any other statements Alanis made under oath.    The

Board relies on the honesty of the circulator who swears that he

witnessed each signature whenever the Board counts the signatures

toward the number required for nomination.   If the evidence

supports a finding that the circulator lied under oath, it

further supports a decision to refuse to count any signatures

that circulator purportedly witnessed.    See Fortas v. Dixon, 122

Ill. App. 3d at 701; Canter, 170 Ill. App. 3d at 369.

     The affidavits of Moran's witnesses further bolster the

Board's finding that Alanis lacked credibility and that all pages

Alanis signed as circulator should not count toward each

candidate's signature requirements.   However, we find sufficient

grounds for the Board's decision here apart from the affidavits

at issue.   The Board struck all pages on which the county clerk

sustained objections to at least half of the signatures, and the

Board correctly struck all pages Alanis signed as circulator.


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Without those pages, and without the other signatures to which

the county clerk sustained objections, neither Bax nor Harmon had

sufficient signatures to qualify for nomination.   Accordingly, we

reverse the judgment of the trial court and we affirm the Board's

decision.

     Reversed.

     JOSEPH GORDON and QUINN, JJ., concur.




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