                                     2018 IL App (1st) 180321

                                          No. 1-18-0321

                                        February 28, 2018


                                                                          SECOND DIVISION


                                             IN THE


                                APPELLATE COURT OF ILLINOIS


                                         FIRST DISTRICT



     ALAN NEAL,                                  )
     Appeal from the Circuit Court
                                                 )
     Of Cook County.
             Plaintiff-Appellant,                )

                                                 )

             v.                                  )      No. 18 COEL 09
                                                 )
     THE COOK COUNTY OFFICERS                    )      The Honorable
     ELECTORAL BOARD AND ITS MEMBERS; )                 Robert W. Bertucci,
     DAVID ORR, Cook County Clerk, by His        )      Judge Presiding.
     Designee Daniel P. Madden, Chairman;        )
     KIMBERLY FOXX, Cook County State’s          )
     Attorney, by Her Designee Sisavahn Baker,   )
     Member; DOROTHY BROWN, Cook County )
     Clerk of the Circuit Court, by Her Designee )
     Gloria Legette, Member; DAVID ORR, in His )
     Official Capacity As Cook County Clerk; and )
     ANTHONY JOHNSON,                            )
                                                 )
             Defendants-Appellees.               )


           PRESIDING JUSTICE NEVILLE delivered the judgment of the court, with opinion.
           Justices Pucinski and Mason concurred in the judgment and opinion.

                                          OPINION

¶1         Anthony Johnson filed nomination papers for the office of Cicero Township

        committeeman. Alan Neal filed an objection to the papers on grounds that the nomination

        petitions stated that the signers were electors in the Township of Oak Park, not Cicero
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        Township. The Cook County Officers Electoral Board (Board) denied the objection, and the

        circuit court affirmed. We find that the inconsistency on the face of the petition renders it

        invalid, and therefore we reverse the Board’s decision and order the Board to remove

        Johnson’s name from the March 20, 2018, General Primary Election ballot.

¶2                                             BACKGROUND

¶3          Anthony Johnson sought to run as the Green Party’s candidate for the office of Cicero

        Township committeeman. He circulated the following petition:

            “We, the undersigned, members of and affiliated with the Green Party and qualified
            primary electors of the Green Party, in the Township of Oak Park, in the County of
            Cook, and State of Illinois, do hereby petition that the following named person or
            persons shall be a candidate(s) of the Party for the nomination/election for the office or
            offices hereinafter specified to be voted for at the Primary Election to be held on March
            20, 2018.
          NAME                            OFFICE                       ADDRESS & ZIP CODE
      Anthony Johnson      Cicero Township Committeeman 4­                 1819 S. 59th Court
                           year term                                        Cicero, IL 60804

        Signature of Voter           Printed Name       Voter’s Residence Address    City    County, State
     1Anthony Johnson/s/          Anthony Johnson      1819 S. 59th Court           Cicero   Cook, IL
     2Veronica Lopez/s/           Veronica Lopez       1819 S. 59th CT              Cicero   Cook, IL
     3Francisco Belmonte/s/       Francisco Belmonte   1819 S. 59th CT              Cicero   Cook, IL
     4Adolfo Belmonte/s/          Adolfo Belmonte      1819 S. 59th CT              Cicero   Cook, IL
     5Juan Ochoa/s/               Juan Ochoa           5233 W 29th PL               Cicero   Cook, IL
     6
     7
     8
     9
     10

              State of Illinois                        )
                                                       SS.
              County of Cook                           )
              [I,] Anthony Johnson do hereby certify that I reside at 1819 S. 59th Court, in the
              Township of Cicero, Zip Code 60804, County of Cook, State of Illinois



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             that I am 18 years of age or older, that I am a citizen of the United States, and that
             the signatures on this sheet were signed in my presence, not more than 90 days
             preceding the last day for filing of the petitions, and are genuine, and that to the best
             of my knowledge and belief the persons so signing were at the time of signing the
             petition qualified voters of the Green Party in the political division in which the
             candidates are seeking elective office, and that their respective addresses are
             correctly stated as above set forth.
                                                   Anthony Johnson/s/
                                                   Signature of Circulator”


¶4         Alan Neal filed an objection to the nomination papers, arguing that the petition did not

        substantially comply with the requirements of the Election Code (Code) (10 ILCS 5/1-1

        et seq. (West 2016)). The Code provides:

                     “The name of no candidate for *** township committeeman *** shall be printed

                     upon the primary ballot unless a petition for nomination has been filed in his

                     behalf as provided in this Article in substantially the following form:

                           We, the undersigned, members of and affiliated with the .... party and

                     qualified primary electors of the .... party, in the .... of ...., in the county of ....

                     and State of Illinois, do hereby petition that the following named person or

                     persons shall be a candidate or candidates of the .... party for the nomination

                     for (or in case of committeemen for election to) the office or offices

                     hereinafter specified, to be voted for at the primary election to be held on

                     (insert date).

                     Name                                      Office                   Address

                     John Jones                                Governor                 Belvidere, Ill

                     ***
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                          I, ...., do hereby certify that I reside at No. .... street, in the .... of ....,

                     county of ...., and State of ...., that I am 18 years of age or older, that I am a

                     citizen of the United States, and that the signatures on this sheet were signed

                     in my presence, and are genuine, and that to the best of my knowledge and

                     belief the persons so signing were at the time of signing the petitions

                     qualified voters of the .... party, and that their respective residences are

                     correctly stated, as above set forth.” 10 ILCS 5/7-10 (West 2016).

¶5         Neal argued that, because the petition’s preamble, in its first two sentences, identified the

        undersigned voters as “primary electors of the Green Party, in the Township of Oak Park,”

        the petition showed on its face that the petitioners lacked authority to nominate Johnson for

        the office of Cicero Township committeeman.

¶6         A hearing officer agreed with Neal, finding that the petition’s preamble conflicted with

        the circulator’s affidavit and created confusion. The Board rejected the hearing officer’s

        recommendation of declaring Johnson’s nomination papers invalid. The Board held:

             “As to the matter of potential confusion in the Candidate’s Petition, we believe that

             the controlling law is found in Nolan v. Cook County Officers Electoral Board, 329

             Ill. App. 3d 52 (1st Dist. 2002). In Nolan, the candidate failed to put the district in

             which he was running into the heading of his petition sheets. That information,

             however, was available elsewhere on the petition sheet, in the box on the petition

             sheet form, much as we see in this case. Here, we see the *** Township set out in

             the ‘Office’ box.”


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¶7            Neal appealed to the circuit court, and the circuit court affirmed the Board’s decision.

          Neal now appeals to this court.

¶8                                              ANALYSIS

¶9            We review the decision of the Board and not the decision of the circuit court. Schwartz v.

          Kinney, 2016 IL App (3d) 160021, ¶ 11. The parties do not dispute the facts, and the case

          presents purely a legal question. Accordingly, we review the Board’s decision de novo.

          Schwartz, 2016 IL App (3d) 160021, ¶ 12.

¶ 10          The Board relied on Nolan as authority for finding the petition sufficient. In Nolan, the

          heading of the nominating petitions did not specify where the signatories could vote. The

          petitions said:

               “We, the undersigned members of and affiliated with the DEMOCRATIC PARTY and

               qualified primary voters of the DEMOCRATIC PARTY in the State of Illinois, do

               hereby petition that the following named person shall be a candidate of the

               DEMOCRATIC PARTY for nomination to the office hereinafter specified ***

                Name                 Address                Office       District       Party

               MARY NOLAN 10338 SOUTH PARKSIDE               STATE 18th SENATORIAL      DEMOCRATIC
                          UNIT 23                          SENATOR DISTRICT
                               OAK LAWN, IL 60453                    STATE OF ILLINOIS”     Nolan, 329

               Ill. App. 3d at 53.

¶ 11          The Nolan court held that the petitions sufficiently complied with the Election Code. The

          court said:




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                “Although Nolan’s circulator’s affidavit is itself devoid of any reference to

      the 18th legislative district, this court may incorporate by reference into a circulator’s

      affidavit language contained elsewhere in a nominating petition in order to satisfy a

      certification requirement under the Election Code. ***

                *** In arguing against a finding of substantial compliance, Donnelly

      steadfastly maintains that ‘[n]owhere in the petitions is any reference made to the

      signers being residents of the 18th Legislative District.’ (Emphasis in original.) We

      disagree. First, Nolan’s circulator’s affidavit certifies that all of the signers were

      ‘qualified voters.’ ***

                Second, the prefatory language present on each of the signature sheets states

      that the signers are all ‘qualified primary voters,’ and limits the signers’ request for

      Nolan’s nomination to the ‘office hereinafter specified.’ (Emphasis added.) The

      office clearly specified on the next line of each signature sheet is that of state senator

      for the ‘18th senatorial district.’ ***

                One cannot be a ‘qualified primary voter’ for the office of Illinois senator for

      the 18th legislative district unless one resides in that district. ***

                We conclude that by including: (1) the phrase ‘qualified voters’ in her

      circulator’s affidavit; (2) the phrase ‘qualified primary voters’ in the prefatory

      language of her signature sheets; and (3) the limiting reference to the ‘18th senatorial

      district,’ Nolan substantially complied with the certification requirement.”

      (Emphases in original.) Nolan, 329 Ill. App. 3d at 56-57.


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¶ 12         Neal argues that we should distinguish Nolan on grounds that the petition here, unlike the

          petition in Nolan, presents two inconsistent identifications of the district where the

          signatories can vote. The preamble says the signatories vote in Oak Park Township, but the

          circulator’s affidavit asserts that, as far as he knows, the signatories can vote for Cicero

          Township committeeman, a privilege reserved for Cicero Township voters. Neal argues that

          the case bears more similarity to Schwartz, 2016 IL App (3d) 160021. In Schwartz, Jack

          Schwartz had his name typed on all of the nominating petitions as the circulator. However,

          his wife, Amy, signed several of the petitions in the space for the circulator’s signature. The

          Schwartz court held that the petitions did not comply with the requirement that the circulator

          must sign the circulator’s statement. The Schwartz court said, “because the affidavit contains

          two different names (petitioner’s typed name and Amy’s signature), we find the petitions to

          be facially invalid.” (Emphasis in original.) Schwartz, 2016 IL App (3d) 160021, ¶ 15. The

          court further held that the testimony of Jack and Amy did not prove substantial compliance

          with the Election Code.

¶ 13         The Schwartz court specifically distinguished Nolan:

                 “The court in Nolan held that while the circulator’s affidavit was devoid of any

             reference to the specific legislative district, such information could be gleaned from

             information found elsewhere in the nominating petition. [Citation.] The petitions in the

             instant case, however, do not offer any information clarifying the ambiguity as to the

             identity of the circulator.” Schwartz, 2016 IL App (3d) 160021, ¶ 20.




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¶ 14         Nolan did not hold that the Board could ignore the assertions formally made in the

          nomination papers. From Nolan and Schwartz, we find support for the principle that the

          Board may look anywhere in the nominating petition to find the necessary information not

          presented in its usual place on the petition but the Board cannot ignore erroneous or

          inconsistent assertions on the petitions. Schwartz, 2016 IL App (3d) 160021, ¶ 15; Nolan,

          329 Ill. App. 3d at 56-58.

¶ 15         In Sullivan v. County Officers Electoral Board of Du Page County, 225 Ill. App. 3d 691,

          692-94 (1992), Hugh Murphy sought to run for the office of Republican precinct

          committeeman in precinct 129 of York Township in Du Page County. Sullivan contended

          that “Murphy’s name should have been removed from the primary ballot because his

          statement of candidacy erroneously listed the office sought as precinct committeeman for

          precinct 129 of Oak Brook Township.” Sullivan, 225 Ill. App. 3d at 692. The nominating

          petitions said that Murphy was seeking election to the office of Republican precinct

          committeeman for precinct 129 of York Township, but the statement of candidacy attached

          to the petitions erroneously listed the office sought as precinct committeeman for precinct

          129 of Oak Brook Township. The Sullivan court said:

                 “There is no Oak Brook Township. Precinct 129 of York Township is, however,

             located in the Village of Oak Brook.

                                                       ***

                 *** [T]he candidate’s error in his statement of candidacy in the case at bar does not

             create any confusion as to the office for which his nominating papers were filed. Because


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             Murphy could not possibly be seeking office in Oak Brook Township, which does not

             exist, it is obvious that he is seeking office in York Township, as stated four times in his

             nominating petition.” Id. at 693-94.

¶ 16         Here, the signatories all signed a statement asserting that they were “electors *** in the

          Township of Oak Park.” Because there is a Township of Oak Park (see Oak Park Township

          Homepage, http://www.oakparktownship.org (last visited Feb. 27, 2018)), we cannot ignore

          the assertion as an impossibility. The circulator’s affidavit asserts that the signatories, “to the

          best of [his] knowledge and belief *** were at the time of signing the petitions qualified

          voters *** in the political division in which the candidates are seeking elective office.”

          Because Johnson sought elective office in Cicero Township, the affidavit, under the

          reasoning of Nolan, asserts that the circulator believed that the signatories could vote in

          Cicero Township. The affidavit conflicts with the assertion in the petition’s preamble that the

          signatories could vote in Oak Park Township. The “conflict or inconsistency” on the face of

          the petition created a “basis for confusion.” See Lewis v. Dunne, 63 Ill. 2d 48, 53 (1976).

¶ 17         The courts and the Board should not ignore erroneous or inconsistent assertions in

          nominating petitions, even when we believe we can determine which assertions the signers

          intended to make and which they did not intend to make. The signatories asserted their

          affiliation with the Green Party only in the preamble, and not anywhere else in the petition.

          Thus, if we ignore the preamble completely, the signatories never asserted that they were

          “affiliated with the Green Party.” Without that assertion, they had no authority to nominate

          Johnson to run as the Green Party candidate. While we can correct omissions, and ignore


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          impossible assertions, we cannot ignore positive assertions in a nominating petition. Due to

          the inconsistency on the face of the nominating petition here, we must reverse the circuit

          court’s judgment and the Board’s decision and order the Board to remove Johnson’s name

          from the March 20, 2018, General Primary Election ballot.

¶ 18                                         CONCLUSION

¶ 19         When petitioners sign a petition stating that they are electors in Oak Park Township, the

          petition cannot validly support a candidacy for the office of Cicero Township committeeman.

          Accordingly, we reverse the circuit court’s judgment and the Board’s decision and order the

          Board to remove Johnson’s name from the March 20, 2018 General Primary Election ballot.

¶ 20         Reversed with directions; mandate to issue immediately.




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