                                                                             Digitally signed by
                                                                             Reporter of Decisions
                                                                             Reason: I attest to the
                              Illinois Official Reports                      accuracy and
                                                                             integrity of this
                                                                             document
                                     Appellate Court                         Date: 2017.08.17
                                                                             13:39:28 -05'00'




           Guerrero v. Municipal Officers Electoral Board, 2017 IL App (1st) 170486



Appellate Court          CYNTHIA GUERRERO, CHRISTOPHER LITWIN, MICHAEL
Caption                  LaCASSA, DIEGO DiMARCO, and FRANK HOUSWERTH,
                         Petitioners-Appellees, v. MUNICIPAL OFFICERS ELECTORAL
                         BOARD OF THE VILLAGE OF FRANKLIN PARK, and ROBERT
                         J. GODLEWSKI, Objector, Respondents-Appellants.



District & No.           First District, Second Division
                         Docket No. 1-17-0486


Rule 23 order filed      March 31, 2017
Motion to publish
allowed                  May 9, 2017
Opinion filed            May 16, 2017



Decision Under           Appeal from the Circuit Court of Cook County, Nos. 2017-COEL-29
Review                   through 2017-COEL-33; the Hon. Laguina Clay-Herron, Judge,
                         presiding.



Judgment                 Affirmed.


Counsel on               Montana & Welch, LLC, of Palos Heights (Matthew M. Welch and P.
Appeal                   Joseph Montana, of counsel), for appellant Municipal Officers
                         Electoral Board for the Village of Franklin Park.

                         James P. Nally PC, of Chicago (James P. Nally, of counsel), for
                         appellant Robert J. Godlewski.
                               Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., of
                               Chicago (Tiffany Nelson-Jaworski and Adam W. Lasker, of counsel),
                               for appellees.



     Panel                     JUSTICE MASON delivered the judgment of the court, with opinion.
                               Justices Neville and Pierce concurred in the judgment and opinion.


                                                OPINION

¶1          The Municipal Officers Electoral Board of Franklin Park (Board), its members, and
       objector Robert J. Godlewski (collectively, respondents) appeal from an order of the circuit
       court of Cook County reversing the Board’s final decision, which determined that petitioners,
       candidates for various offices in the Village of Franklin Park, were ineligible to appear on the
       ballot for the April 4, 2017, municipal election. The circuit court ruled that certain defects
       common to petitioners’ respective statements of economic interests did not invalidate their
       candidacies and directed that petitioners’ names appear on the ballot. We affirm.
¶2          Each of the petitioners filed statements of candidacy with the Village clerk as part of the
       newly formed Citizens for Change Party, seeking to be placed on the ballot for municipal
       elections to be held in Franklin Park on April 4, 2017. As a slate, petitioners sought election to
       the following positions: Village President (Cynthia Guerrero); Village Clerk (Michael
       LaCassa); and Village Trustee (Christopher Litwin, Diego DiMarco and Frank Houswerth).
       The statement of candidacy filed by each petitioner listed his or her home address.
¶3          The petitioners also filed with the Cook County Clerk a statement of economic interests
       listing “DNA” (i.e., “does not apply”) in answer to every question on the form seeking
       disclosure of relevant economic interests. There is a space at the top of the form under the
       candidate’s name to fill in the office the candidate is seeking. Each petitioner wrote the title of
       the office, i.e., “Village President,” “Village Clerk,” etc., but did not list Franklin Park as the
       municipality for which the disclosures were made. Although verifications were signed by
       petitioners, they were all undated. Petitioners’ addresses were not listed on the forms, nor does
       there appear to be any place on the form that calls for an address, although the Illinois
       Governmental Ethics Act (Ethics Act) provides for an address. See 5 ILCS 420/4A-104 (West
       2014). The forms were all file-stamped as received in the Office of the County Clerk on
       December 8, 2016.
¶4          On December 27, 2016, respondent Godlewski filed objections to each petitioner’s
       nominating papers. In his objections, Godlewski claimed that petitioners filed “deficient
       receipts” relating to their statements of economic interests. But given that petitioners filed the
       entirety of their economic statements as their “receipts,” the substance of Godlewski’s
       objections actually related to certain information he claimed was lacking in the statements
       themselves. In particular, Godlewski claimed petitioners’ statements were deficient in that
       petitioners failed to (1) identify the municipality in which they sought elective office, (2) list
       their respective addresses, and (3) date the verification. Godlewski contended that each of
       these defects invalidated petitioners’ nominating papers.

                                                    -2-
¶5       The Board convened and held hearings on Godlewski’s objections to each nominating
     petition that spanned several days in January 2017. The hearings on Godlewski’s objections
     were consolidated with the hearing on motions to dismiss filed by each petitioner. In
     substantially identical decisions entered on January 25, 2017, the Board, with one member
     dissenting, sustained Godlewski’s objections and denied petitioners’ motions to dismiss. The
     Board directed that each petitioner’s name not appear on the ballot for the upcoming election.
¶6       Specifically, the Board noted that the parties agreed that each statement of economic
     interests failed to list the unit of government for which the particular office was sought, the
     candidate’s address, or a date next to the candidate’s verification. The parties’ disagreement
     focused on “the legal effect of the foregoing admitted facts.” The Board conceded that each
     candidate’s address and the unit of government for which office was sought were included in
     the nominating petitions and statements of candidacy. The Board further observed that neither
     objector nor petitioners had offered any evidence as to whether the omissions in the statement
     of economic interests were intentional or inadvertent.
¶7           On the merits, the Board noted that section 10-5 of the Election Code invalidates
     nomination papers if the candidate “fails to file a statement of economic interest as required by
     the Illinois Governmental Ethics Act in relation to his candidacy.” 10 ILCS 5/10-5 (West
     2014). While an electoral board generally does not have statutory jurisdiction to inquire into
     the truth of disclosures made by the candidate, it may nevertheless determine whether the
     statement itself was duly filed in relation to the candidacy. Given that the purpose of a
     statement of economic interests is to promote full disclosure of any actual or potential conflicts
     a candidate may have so that the electorate may be better informed, the Board concluded that
     by merely listing the title of the office sought without indicating the identity of the
     municipality, each petitioner had failed to satisfy the filing requirement of section 10-5: “By
     merely listing [the title of the office] with no further information to supplement the disclosure,
     [petitioners] effectively insulated [themselves] from (i) any charges of perjury related to the
     answers provided … and (ii) public scrutiny about business dealings [they] may or may not
     have with the Village of Franklin Park.” The Board reasoned:
             “[I]f a hypothetical ‘bad guy’ wanted to avoid answering questions about his
             connections to his municipality, he would have done exactly what Candidate did here.
             [citation om.]. By merely stating ‘Village President’ [‘Village Clerk’ or ‘Village
             Trustee’], the Candidate has not made a disclosure relative to any office of a unit of
             local government. Candidate could answer honestly every question about some vague
             office of ‘Village President’ [‘Village Clerk’ or ‘Village Trustee’] which could
             arguably relate to the Village of Skokie, the Village of LaGrange, or the Village of
             Evergreen Park, but technically having avoided providing any answers about his
             dealings with the Village of Franklin Park. In addition, this hypothetical ‘bad guy’ is
             insulated from public scrutiny from his constituents or criticism by the media that his
             answers were incomplete or less than forthcoming. [citation om.] In this case,
             Candidate could argue that he answered fully all the questions posed on the [Statement
             of Economic Interest] but his answers had nothing to do with the office of Village
             President, [Village Clerk or Village Trustee] of the Village of Franklin Park. If
             deliberate, the Cook County State’s Attorney could not prosecute the Candidate for
             perjury, nor could the Chicago Tribune criticize the Candidate for being untruthful.”



                                                 -3-
¶8          The Board further found that the lack of a date on the verification was also problematic
       because, without a date, “it cannot be determined what year the disclosure relates to.” The
       Board noted that the Ethics Act specifically requires that a statement of economic interest
       “shall be verified, dated and signed by the person making the statement.” 5 ILCS 420/4A-104
       (West 2014). Although each of petitioners’ statements contained a date stamp from the Cook
       County Clerk, the Board concluded that this was insufficient to identify the year to which the
       disclosures related. The Board did not consider or find that petitioners’ failure to list an address
       on their disclosures was a separate basis upon which their disclosures were defective.
¶9          Petitioners each sought review of the Board’s decision in the circuit court of Cook County.
       The matters were thereafter consolidated. The circuit court reversed the Board’s decision in
       each case and directed that petitioners’ names appear on the ballot. Respondents appeal to this
       court.
¶ 10        Electoral boards are considered to be administrative agencies. Jackson v. Board of Election
       Commissioners, 2012 IL 111928, ¶ 46; Cinkus v. Village of Stickney Municipal Officers
       Electoral Board, 228 Ill. 2d 200, 209 (2008). Under section 10-10.1 of the Code, a candidate or
       objector aggrieved by the final decision of an electoral board may obtain judicial review of the
       board’s decision in the circuit court. 10 ILCS 5/10-10.1 (West 2014).
¶ 11        Although the Code does not specifically adopt the Administrative Review Law (735 ILCS
       5/3-101 et seq. (West 2014)), the standards governing judicial review of a final decision of an
       election board are substantially the same as those governing review of other agency decisions.
       Cinkus, 228 Ill. 2d at 209. In particular, the standards of review for questions of law and mixed
       questions of fact and law are the same as those utilized under the Administrative Review Law.
       As we recently reiterated in Cunningham v. Schaeflein:
                “Our supreme court has explained that where the historical facts are admitted or
                established, the controlling rule of law is undisputed, and the issue is whether the facts
                satisfy the statutory standard, the case presents a mixed question of fact and law for
                which the standard of review is ‘ “clearly erroneous.” ’ [Citation.] An administrative
                agency’s decision is deemed clearly erroneous ‘when the reviewing court is left with
                the definite and firm conviction that a mistake has been committed.’ (Internal
                quotations marks omitted.) [Citation.] Pure questions of law, including questions of
                statutory interpretation, are reviewed de novo. [Citation.]” Cunningham v. Schaeflein,
                2012 IL App (1st) 120529, ¶ 19.
       “Stated another way, a mixed question is one ‘in which the historical facts are admitted or
       established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory
       standard, or *** whether the rule of law as applied to the established facts is or is not
       violated.’ ” AFM Messenger Service, Inc. v. Illinois Department of Employment Security, 198
       Ill. 2d 380, 391 (2001) (quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982)).
       On appeal from a decision of the circuit court affirming or reversing an electoral board’s
       decision, we review the decision of the board, not the circuit court. Jackson, 2012 IL 111928,
       ¶ 46; Cinkus, 228 Ill. 2d at 212.
¶ 12        Although it is arguable that de novo review applies (Goodman v. Ward, 241 Ill. 2d 398, 406
       (2011) (“where the historical facts are admitted or established, but there is a dispute as to
       whether the governing legal provisions were interpreted correctly by the administrative body,
       the case presents a purely legal question for which our review is de novo”)), we believe the
       dispute here implicates the clearly erroneous standard. The facts are undisputed: petitioners’

                                                    -4-
       statements of economic interests listed only the title of the office they seek and not the
       municipality to which their respective candidacies relate, and the statements were undated.
       The parties’ dispute focuses on the legal effect of these facts; respondents maintain that they
       require removal from the ballot, and petitioners disagree. That said, the result would be the
       same under either standard.
¶ 13        Section 10-10 of the Election Code provides: “The electoral board shall take up the
       question as to whether or not the certificate of nomination or nomination papers or petitions are
       in proper form, and whether or not they were filed within the time and under the conditions
       required by law, *** and in general shall decide whether or not the certificate of nomination or
       nominating papers or petitions on file are valid or whether the objections thereto should be
       sustained ***.” 10 ILCS 5/10-10 (West 2014). This provision establishes the basic principle
       that an electoral board’s authority is strictly limited to determining whether a candidate’s
       nomination papers are valid or invalid. Kozel v. State Board of Elections, 126 Ill. 2d 58, 68
       (1988); see also Wiseman v. Elward, 5 Ill. App. 3d 249, 257 (1972). Because an electoral board
       can only determine the validity of nomination papers, it cannot impose any other sanction for
       an Election Code violation.
¶ 14        This case does not involve any defect in petitioners’ nominating papers, but in their
       statements of economic interests. Respondents argue that the Board was entitled to examine
       the form of petitioners’ statements of economic interests and since they did not strictly comply
       with the Ethics Act, the Board acted within its authority in determining that petitioners’
       candidacies were invalid. For their part, petitioners contend the Board overstepped its statutory
       authority in examining the contents of their statements of economic interest. Rather, the Board,
       having determined that the statements were, in fact, filed should have overruled Godlewski’s
       objections and allowed petitioners’ names to remain on the ballot.
¶ 15        As a threshold matter, petitioners contend that respondents have forfeited review of their
       claims because the objection filed by Godlewski focused on petitioners’ deficient receipts and
       not any defects in the statements themselves. But the substance of Godlewski’s objections
       alerted petitioners to the nature of the issues he raised, and it is apparent from the record that
       the entirety of petitioners’ respective statements was considered to be the “receipt” reflecting
       their filing. Therefore, we will review the merits of the Board’s contentions on appeal. See
       Cambridge Engineering, Inc. v. Mercury Partners 90 Bi, Inc., 378 Ill. App. 3d 437, 453 (2007)
       (waiver is an admonition to the parties and not a limitation on the court’s jurisdiction).
¶ 16        Our supreme court has held that a candidacy may not be challenged based on a claim that
       the substance of required economic disclosures are false or fraudulent. Welch v. Johnson, 147
       Ill. 2d 40 (1992). The issue as described in Welch was “whether removal from the ballot of a
       candidate for elective office is a permissible sanction for the candidate’s filing, in relation to
       his candidacy, of a statement of economic interests which is not true, correct and complete due
       to inadvertence on the candidate’s part.” Id. at 43. Although not set out in the supreme court’s
       opinion, the appellate court’s opinion reveals that the candidate’s statement failed to disclose
       employment with another unit of government and the receipt of an honorarium in excess of
       $500, omissions that the candidate later corrected in amended filings. Welch v. Johnson, 214
       Ill. App. 3d 478, 481 (1991).
¶ 17        The challengers contended that language in section 10-5 of the Election
       Code—“[n]omination papers filed [hereunder] are not valid if the candidate named therein
       fails to file a statement of economic interests as required by the [Ethics Act]” (emphasis

                                                   -5-
       added) (10 ILCS 5/10-5 (West 2014))—meant that a disclosure statement that was not true,
       correct, and complete, whether inadvertently or otherwise, could invalidate a candidate’s
       nomination papers. The supreme court disagreed. The court found that because the Ethics Act
       contained its own sanctions for failing to file a statement (ineligibility for or forfeiture of
       office) or willfully filing a false or incomplete statement (criminal penalties) (5 ILCS
       420/4A-107 (West 2014)), and the only sanction under the Election Code related to the
       complete failure to file a statement (invalidating nominating papers) (10 ILCS 5/7-12(8) (West
       2014)), it could not infer that invalidating nominating papers was within an election board’s
       authority when the challenge focused not on the failure to file, but on the completeness or
       accuracy of the candidate’s filed disclosures. “A reading of the plain language of [the Ethics
       Act and the Election Code] convinces us that removal from the ballot is not a permissible
       sanction for the filing of a statement of economic interests which is not true, correct and
       complete when filed with the appropriate officer merely due to inadvertence on the part of the
       person filing the statement.” Welch, 147 Ill. 2d at 51; see also Crudup v. Sims, 292 Ill. App. 3d
       1075, 1079 (1997) (refusing to remove candidate from ballot even where candidate willfully
       filed false statement of economic interests because that sanction not contemplated for
       violations of the Ethics Act).
¶ 18        But the issue here is not the substance of petitioners’ disclosures per se; rather, the question
       is whether petitioners’ nominating papers are invalid because their disclosure statements failed
       to (i) list the unit of government to which their candidacy relates or (ii) date their verifications.
       And while the Board hypothesized that a “bad guy” could use such omissions to avoid
       consequences under the Ethics Act, the record contains no evidence suggesting one way or the
       other whether these omissions were intentional or inadvertent.
¶ 19        The Board’s reasoning in this case followed closely and relied heavily on our decision in
       Cortez v. Municipal Officers Electoral Board, 2013 IL App (1st) 130442. As relevant here, a
       candidate for office in Calumet City, Larry Caballero, filed a statement of economic interests
       required of candidates for statewide office instead of the form used by candidates for local
       office. We noted that while we could not determine whether use of the wrong form was
       intentional or inadvertent, Caballero’s answers to questions regarding economic interests
       related to the State of Illinois avoided answering questions regarding his economic interests
       relating to Calumet City.
¶ 20        For example, the statewide form asked for information regarding the candidate’s
       relationship with “any entity doing business in the State of Illinois,” while the local candidate
       form sought information regarding the candidate’s interest in “any entity doing business with a
       unit of local government in relation to which the person is required to file.” (Internal quotation
       marks omitted.) Id. ¶ 29. Cortez found that a candidate’s use of the statewide form allowed the
       candidate to avoid (i) listing any of out-of-state businesses that he owns that do business with
       the local government or (ii) identifying which listed businesses actually do business with the
       local government. Id. Finding that several of the questions on the statewide form differed
       significantly from those on the local form, the court noted the possibility of circumvention of
       Ethics Act requirements:
                 “[W]e observe that, if a hypothetical ‘bad guy’ wanted to avoid answering questions
                 about his connections to his municipality, he would have done exactly what Caballero
                 did here. Filling out the wrong form completely insulates a candidate from any charges
                 of perjury. He could answer honestly every question about the State of Illinois and,

                                                     -6-
                thus, avoid having to provide any answers—truthful or otherwise—about his dealing
                with his own municipality.” Id. ¶ 34.
¶ 21       The observations in Cortez regarding a candidate’s ability to avoid revealing relevant
       financial information by using the wrong disclosure form do not neatly translate to the facts
       before us. Cortez stands for the proposition that when a candidate for public office files the
       wrong disclosure form that does not, in fact, disclose the candidate’s economic interests in the
       unit of government related to the candidacy, the Election Code’s filing requirement has not
       been met. Here, each of the petitioners did file the correct form, but they did not identify the
       unit of government to which the disclosures related. Unlike Cortez, we do not believe this
       omission enabled petitioners to honor the letter of the law while violating its spirit.
¶ 22       Petitioners all revealed that they had no relevant financial connections to “the unit of local
       government in relation to which” they were required to file. Petitioners’ nominating papers
       revealed that they were all residents of Franklin Park and, as noted, petitioners filed the entirety
       of their statements with the Village so that any interested resident could easily locate both the
       nominating papers and the statements. Although the Board opined that the failure to specify the
       unit of local government on their statements of economic interest could conceivably allow
       petitioners to contend that their disclosures related, not to Franklin Park, but to some other
       municipality, neither the Board nor respondents explain how this is so. Petitioners are not
       residents of any other municipality nor, so far as the record reveals, are they running for public
       office anywhere other than Franklin Park. By the same token, given the filing of petitioner’s
       nominating papers, because Franklin Park is the only municipality as to which petitioners
       could be required to file statements of economic interest, one could reasonably conclude that
       their disclosures related only to their candidacy for public office in their home town. If, for
       example, one of the petitioners, contrary to the “DNA” on the form, owned a business that had
       a contract with Franklin Park, we do not believe either a perjury prosecution or public outcry
       would be deterred by the fact that “Franklin Park” does not appear on the form, since the form
       and petitioner’s nominating papers could easily be connected. We simply do not perceive here
       the potential evils identified in Cortez, nor do we believe, like Cortez, petitioners’ disclosures
       can be characterized as no disclosures at all.
¶ 23       The circumstances here are analogous to those cases that have found incomplete
       descriptions or omissions regarding the office for which the financial disclosure is made to be
       an insufficient reason for invalidating a candidate’s nominating papers. See, e.g., Cardona v.
       Board of Election Commissioners, 346 Ill. App. 3d 342, 346 (2004) (receipt evidencing filing
       of candidate’s statement of economic interests listed the office sought as “candidate”; court
       found that any inadequacy in receipt could not result in ballot removal); Requena v. Cook
       County Officers Electoral Board, 295 Ill. App. 3d 728, 734 (1998) (candidate’s listing of
       “Circuit Court of Cook County” as the position she was seeking in her statement of economic
       interests was incomplete as it did not indicate she was running for judge or the vacancy she
       sought, but did not warrant invalidating her nominating papers in light of Welch and Crudup);
       Bryant v. Cook County Electoral Board, 195 Ill. App. 3d 556, 559 (1990) (refusing to
       invalidate candidate’s nominating papers because the words used to identify the office sought
       in the statement of economic interests, “15th Representative District,” adequately informed the
       public of the office sought). We find that nothing in petitioners’ failure to list “Franklin Park,”
       in addition to the respective office sought, is fatal to their candidacies.



                                                    -7-
¶ 24        Similarly, we find no reason to invalidate petitioners’ nominating papers because the
       verifications on their disclosure forms were not dated. Again, because petitioners’ statements
       were all date-stamped by the County Clerk’s office and were filed in their entirety with the
       clerk of Franklin Park, we do not see how the absence of a date next to petitioners’
       verifications would allow them to maintain that the disclosures related to some year other than
       the year preceding the date the statements were filed. And since petitioners represented in their
       nominating papers that they had filed or would file their statements of economic interest
       required by the Ethics Act, it is an elementary matter to connect the dots between the two
       filings. In other words, we do not believe that the omission of a date from the verification
       would allow petitioners to escape the consequences under the Ethics Act of filing a false
       statement.
¶ 25        We do not encourage candidates to take short cuts in complying with the mandatory
       requirements of the Election Code and the Ethics Act. But substantial compliance with election
       requirements will save a candidate’s nominating papers if the defects complained of are minor.
       See Goodman, 241 Ill. 2d at 409 (“If a candidate’s statement of candidacy does not
       substantially comply with the statute, the candidate is not entitled to have his or her name
       appear on the primary ballot.”); Atkinson v. Roddy, 2013 IL App (2d) 130139, ¶ 22
       (recognizing substantial compliance doctrine applies when invalidating charge concerns a
       technical violation). We do not adopt petitioners’ blanket position that because the Election
       Code does not require strict compliance with the Ethics Act, deficiencies in statements of
       economic interests will never constitute grounds for invalidating a candidate’s nominating
       papers. Cortez holds otherwise. But we do believe that the complained of defects involved here
       are minor and that refusing to invalidate petitioners’ nominating papers on the grounds urged
       by respondents is wholly consistent with both the Election Code and the Ethics Act.
¶ 26        As in any election dispute, we are mindful of the fact that “ballot [access] is a substantial
       right and not to be lightly denied.” Siegel v. Lake County Officers Electoral Board, 385 Ill.
       App. 3d 452, 460 (2008). We must “tread cautiously when construing statutory language
       which restricts the people’s right to endorse and nominate the candidate of their choice.” Lucas
       v. Lakin, 175 Ill. 2d 166, 176 (1997). Under the circumstances presented, any claimed defects
       in petitioners’ statements of economic interest are, in our view, outweighed by the public
       interest in ballot access and we, therefore, affirm the judgment of the circuit court of Cook
       County.

¶ 27      Affirmed.




                                                   -8-
