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                                     Appellate Court                           Date: 2017.02.10
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             Schmidt v. Illinois State Board of Elections, 2016 IL App (4th) 160189



Appellate Court          JULIE A. SCHMIDT, Plaintiff-Appellant, v. THE ILLINOIS STATE
Caption                  BOARD OF ELECTIONS; STATE OFFICERS ELECTORAL
                         BOARD; CHARLES W. SCHOLZ, ERNEST L. GOWEN,
                         WILLIAM J. CADIGAN, ANDREW K. CARRUTHERS, BETTY J.
                         COFFRIN, JOHN R. KEITH, WILLIAM M. McGUFFAGE, and
                         CASANDRA B. WATSON, All in Their Official Capacities as
                         Members of the Duly Constituted State Officers Electoral Board;
                         JOHN A. CUNNINGHAM, Not Individually but in His Capacity as
                         Kane County Clerk; DAVID ORR, Not Individually but in His
                         Capacity as Cook County Clerk; and ANNA MOELLER,
                         Defendants-Appellees.


District & No.           Fourth District
                         Docket No. 4-16-0189


Filed                    December 8, 2016


Decision Under           Appeal from the Circuit Court of Sangamon County, No. 16-MR-22;
Review                   the Hon. John P. Schmidt, Judge, presiding.



Judgment                 Affirmed.



Counsel on               Jeffrey A. Meyer (argued) and Peter Thomas Smith, of Klein,
Appeal                   Stoddard, Buck & Lewis, LLC, of Sycamore, for appellant.

                         Michael J. Kasper (argued), of Fletcher, Topol, O’Brien & Kasper,
                         P.C., of Chicago, and James M. Morphew, of Sorling Northrup, of
                         Springfield, for appellee Anna Moeller.
                              Lisa Madigan, Attorney General, of Springfield (Richard S. Huszagh,
                              Assistant Attorney General, of counsel), for other appellees.



     Panel                    JUSTICE HARRIS delivered the judgment of the court, with opinion.
                              Justices Turner and Holder White concurred in the judgment and
                              opinion.


                                               OPINION

¶1         In December 2015, plaintiff, Julie A. Schmidt, filed a petition with the Illinois State Board
       of Elections, sitting as the State Officers Electoral Board (Board), objecting to the nominating
       papers of defendant, Anna Moeller, a Democratic candidate for the office of Representative in
       the Illinois General Assembly for the 43rd Representative District. In response, Moeller filed a
       motion for summary judgment, which the Board granted. On judicial review, the circuit court
       affirmed the Board’s decision. Schmidt appeals, arguing Moeller’s nominating papers were
       invalid because, during the same election cycle, she signed both her own statement of
       candidacy as a Democratic Party candidate and the nominating petition of a Republican Party
       candidate in violation of section 8-8 of the Election Code (10 ILCS 5/8-8 (West 2014)). We
       affirm.

¶2                                           I. BACKGROUND
¶3         The undisputed facts demonstrate that, on September 5, 2015, Moeller signed petition
       sheets in support of her nomination as the Democratic Party candidate for the office of
       Representative for the 43rd District. On September 26, 2015, she signed a petition sheet for
       Sandy Wegman, a Republican Party candidate who sought nomination for the office of Kane
       County Recorder. On November 23, 2015, Moeller filed her own nomination papers with the
       Board to place her name on the March 15, 2016, primary election ballot as a candidate for the
       office of Representative for the 43rd District. Her papers included a signed statement of
       candidacy, notarized on November 19, 2015, in which she asserted that she was “a qualified
       primary voter of the Democratic Party.”
¶4         On December 7, 2015, Schmidt filed a verified objector’s petition with the Board,
       objecting to Moeller’s nomination papers. She cited section 8-8 of the Election Code (10 ILCS
       5/8-8 (West 2014)), which provides that “[a] ‘qualified primary elector’ of a party may not sign
       petitions for or be a candidate in the primary of more than one party.” Schmidt argued Moeller
       violated that section by signing the nominating petition of a Republican Party candidate and
       running for office as a Democratic Party candidate. She asked that the Board declare Moeller’s
       nominating papers and petition defective or invalid and bar Moeller’s name from being printed
       on the March 15, 2016, primary election ballot.
¶5         On December 16, 2015, Moeller filed a motion for summary judgment. She agreed with
       Schmidt’s assertion that “a person may not sign the petitions of more than one political party in
       any particular primary election.” However, Moeller cited the First District’s decision in


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       Watkins v. Burke, 122 Ill. App. 3d 499, 461 N.E.2d 625 (1984), for the proposition that “when
       a person signs for more than one political party at the same election, the first signature in time
       is valid and all subsequent signatures for a different political party are invalid.” Moeller
       alleged she signed her own nominating petition and those of other Democratic Party candidates
       prior to signing a petition for Wegman, a Republican Party candidate. Thus, she maintained
       she affiliated herself with the Democratic Party prior to signing Wegman’s petition and, as a
       result, her own nominating papers were valid.
¶6         On December 23, 2015, a hearing was conducted before the Board’s hearing officer. On
       January 5, 2016, the hearing officer recommended that the Board grant Moeller’s motion for
       summary judgment and overrule Schmidt’s petition in its entirety. On January 7, 2016, the
       Board conducted a hearing in the matter. It granted Moeller’s motion for summary judgment
       and overruled Schmidt’s objection. The Board found as follows:
                “[Moeller’s] Statement of Candidacy does not violate Section 8-8 of the Election Code
                because [Moeller] has not impermissibly signed a nominating petition for a candidate
                of one established political party and subsequently run as a candidate for another
                established political party in the same election cycle; rather, [Moeller’s] first act of
                political affiliation was to align herself with the Democratic Party by signing her own
                petition. The act of signing a Republican candidate’s petition after signing her own
                Democratic petition and before seeking nomination as a Democratic Party candidate
                rendered [Moeller’s] signature on the Republican petition invalid but did not invalidate
                her petition.”
¶7         On January 12, 2016, Schmidt filed a petition for judicial review of the Board’s decision
       pursuant to section 10-10.1 of the Election Code (10 ILCS 5/10-10.1 (West 2014)). On
       February 10, 2016, the circuit court affirmed the Board’s decision.
¶8         This appeal followed.

¶9                                            II. ANALYSIS
¶ 10       On appeal, Schmidt argues the Board erred in overruling her objection to Moeller’s
       nomination papers and granting summary judgment in Moeller’s favor. “Where *** an
       electoral board’s decision is challenged in court pursuant to section 10-10.1 of the Election
       Code [citation] the proceeding is in the nature of administrative review.” Jackson-Hicks v. East
       St. Louis Board of Election Commissioners, 2015 IL 118929, ¶ 19, 28 N.E.3d 170. On appeal,
       we review the electoral board’s decision rather than that of the circuit court. Id. Additionally,
       where the “facts are admitted or established and the only dispute concerns whether the
       governing legal provisions were interpreted correctly,” we apply a de novo standard of review.
       Id. ¶ 20.

¶ 11                                            A. Mootness
¶ 12       Initially, we note Moeller argues Schmidt’s appeal is moot. “A case on appeal is moot
       where the issues raised below no longer exist because events subsequent to the filing of the
       appeal make it impossible for the reviewing court to grant the complaining party effectual
       relief.” Hossfeld v. Illinois State Board of Elections, 238 Ill. 2d 418, 423-24, 939 N.E.2d 368,
       371 (2010). We find the public interest exception to the mootness doctrine applies under the
       circumstances presented. That exception “permits a court to reach the merits of a case which


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       would otherwise be moot if the question presented is of a public nature, an authoritative
       resolution of the question is desirable for the purpose of guiding public officers, and the
       question is likely to recur.” Goodman v. Ward, 241 Ill. 2d 398, 404, 948 N.E.2d 580, 584
       (2011). A question of election law is, inherently, a matter of public concern. Id. at 404, 948
       N.E.2d at 585. Further, we find no case addressing the precise factual question presented here.
       Therefore, an authoritative resolution is desirable for guiding public officers. Finally, contrary
       to Moeller’s assertion, we find the issue presented by this case is likely to recur. Therefore, we
       will address the merits of Schmidt’s appeal.

¶ 13                            B. Validity of Moeller’s Nomination Papers
¶ 14       On appeal, Schmidt asserts Moeller’s nomination papers should be held invalid. She
       argues the plain language of section 8-8 of the Election Code prohibited Moeller from signing
       petitions or being a candidate for more than one party in a single election cycle and Moeller
       violated that provision by being a candidate for the Democratic Party and signing the
       nominating petition of a Republican Party candidate.
¶ 15       The issue presented on appeal concerns the Board’s interpretation of a provision of the
       Election Code. “When determining how the Election Code should be construed, we employ the
       same basic principles of statutory construction applicable to statutes generally.”
       Jackson-Hicks, 2015 IL 118929, ¶ 21, 28 N.E.3d 170. “Our primary objective is to ascertain
       and give effect to the intent of the legislature.” Id. “When statutory language is plain and
       unambiguous, the statute must be applied as written without resort to aids of statutory
       construction [citation], and the court will not read into it exceptions, conditions, or limitations
       that the legislature did not express [citation].” Id. “Where the meaning of a statute is
       ambiguous, courts may look beyond the statutory language and consider the purpose of the
       law, the evils it was intended to remedy, and the legislative history of the statute.” Cinkus v.
       Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 217, 886 N.E.2d 1011,
       1022 (2008).
¶ 16       Section 8-8 of the Election Code concerns the form of nomination petitions for members of
       the General Assembly. 10 ILCS 5/8-8 (West 2014). It provides that each petition must include
       “a statement of candidacy,” stating “that the candidate is a qualified primary voter of the party
       to which the petition relates.” Id. Relevant to this appeal, section 8-8 also provides that “[a]
       ‘qualified primary elector’ of a party may not sign petitions for or be a candidate in the primary
       of more than one party.” Id.
¶ 17       Here, Moeller signed nominating petitions of Democratic candidates and a Republican
       candidate. She also submitted nomination papers to run as a Democratic candidate in the
       primary election. Moeller’s conduct clearly violated the restriction set forth in section 8-8
       against signing petitions or being a candidate in the primary of more than one party. However,
       the Election Code is silent as to the consequences for such a violation. Schmidt asserts that,
       because Moeller signed a petition for a Republican Party candidate, she was prohibited from
       running for office as a Democratic Party candidate and her nomination papers must be held
       invalid. Conversely, Moeller argues that since she first affiliated herself with the Democratic
       Party by signing her own nominating petition, her nomination papers were valid and she was
       entitled to run for office as a Democratic Party candidate. For the reasons that follow, we agree
       with Moeller.


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¶ 18       Both Moeller and the Board relied on the First District’s decision in Watkins, 122 Ill. App.
       3d 499, 461 N.E.2d 625, to support the validity of Moeller’s nomination papers. There, the
       court held “that where an otherwise qualified voter has signed the nominating petitions of more
       than one party, the signature appearing on the petition first signed is valid and all subsequent
       signatures appearing on the nominating petitions of other parties are invalid.” Id. at 502, 461
       N.E.2d at 627. The underlying facts in that case showed the plaintiff filed objections to the
       nominating petitions of the defendant, a candidate for Democratic ward committeeman. Id. at
       500, 461 N.E.2d at 626. He asserted the petitions violated a provision of the Election Code
       similar to the one at issue in the case at bar, which prohibited any person from signing petitions
       or being a candidate in the primary of more than one party. Id. Specifically, in that case, the
       plaintiff alleged that 382 voter names that appeared on the defendant’s petitions also appeared
       on the nominating petitions of a Republican Party candidate. Id. The Board rejected the
       plaintiff’s objections, concluding “that if the voters in question had signed [the defendant’s]
       nominating petitions for Democratic ward committeeman before signing the Republican
       nominating petitions, then the signatures on [the defendant’s] petitions were valid.” Id. at 501,
       461 N.E.2d at 626. The plaintiff appealed, arguing, in part, that “voters who sign[ed] the
       nominating petitions of more than one party should have their names stricken from a
       nominating petition irrespective of the order of signing.” Id.
¶ 19       On review, the First District agreed with the Board and stated as follows:
               “The construction urged by [the] plaintiff would automatically curtail the right of an
               otherwise qualified voter to participate in the primary electoral process by signing a
               nominating petition if the voter even inadvertently signed the nominating petitions of
               more than one party. [The] [p]laintiff argues that under these circumstances a voter’s
               signature would be per se invalid and that the name should be stricken from the
               nominating petitions of both political parties. We do not believe that this draconian
               sanction represents the reasoned intent of our legislature, nor does the language of the
               above cited statute mandate such a drastic result.” Id. at 501-02, 461 N.E.2d at 627.
       The court went on to find its resolution to be “less restrictive” and “consistent with the
       legislative intent evinced in *** the Election Code that a person signing a nominating petition
       be qualified at the time of signing as well as with the laudable public policy of protecting the
       right of the electorate to participate in the primary electoral process.” (Emphasis in original.)
       Id. at 502, 461 N.E.2d at 627.
¶ 20       Here, the undisputed facts demonstrate Moeller first signed her own nominating petition as
       a Democratic candidate for Representative and thereafter signed the nominating petition of a
       Republican candidate for a different office. Under Watkins, Moeller’s signature on her own
       petition was valid and her signature on the petition of the Republican candidate was invalid.
       After signing the nominating petitions at issue, Moeller filed her nomination papers, which
       included a signed statement of candidacy, asserting she was a qualified primary voter of the
       Democratic Party. Given the rule set forth in Watkins, Moeller’s statement of candidacy was
       accurate and her nomination papers were valid.
¶ 21       Schmidt asserts Watkins is factually distinguishable from the present case because it
       involved only the validity of voter signatures and not, like the present case, a candidate for
       office. Alternatively, she challenges that decision on the basis that it “craft[s] an exception to
       the prohibition in [s]ection 8-8 that does not exist in the statute,” i.e., a “sequence of signing
       exception.”

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¶ 22        To support her arguments, Schmidt has relied on the First District’s more recent decision in
       Rosenzweig v. Illinois State Board of Elections, 409 Ill. App. 3d 176, 946 N.E.2d 1113 (2011).
       There, the respondent, Hebda, signed a nominating petition for a Democratic Party candidate
       for the office of Representative for the 59th Representative District. Id. at 177, 946 N.E.2d at
       1114. The following month, she decided to run for the same office as a Republican Party
       candidate and signed her own nominating petition and statement of candidacy. Id. at 177, 946
       N.E.2d at 1114-15.
¶ 23        On review, the First District initially noted Hebda violated section 8-8 because she signed a
       nominating petition for a Democratic candidate and subsequently signed her own nominating
       petition to run as a Republican candidate. Id. at 180, 946 N.E.2d at 1117. It cited Watkins for
       the proposition that “[w]here a person signs nominating petitions for more than one party, the
       first signature is valid and all subsequent signatures are invalid.” Id. However, the court
       concluded its analysis did not end there because, “[w]hile Hebda violated the restriction by
       signing nominating petitions for more than one party, [the court] must also determine whether
       her candidacy itself was a violation of the remaining restriction in section 8-8.” Id. It addressed
       the rationale behind the restrictions, stating as follows:
                    “The Seventh Circuit explained the reasoning behind a parallel provision in the
                Election Code that prohibits circulators from soliciting signatures for nominating
                petitions on behalf of more than one political party in a single election cycle. [Citation.]
                The court explained that such restrictions prevent political maneuvers that could affect
                the quality of the candidates who will be on the ballot. [Citation.] If one party
                determines that a certain opponent will be a weaker candidate in the general election,
                that party could circulate petitions on behalf of the weaker candidate for the primary
                election in the hope that votes will be drawn away from an opposition candidate the
                party deems to propose a greater threat to its chances of prevailing in the general
                election.” Id. at 181, 946 N.E.2d at 1117 (citing Citizens for John W. Moore Party v.
                Board of Election Commissioners, 794 F.2d 1254, 1261 (7th Cir. 1986)).
       The court found that what Hebda did was “an even more egregious example of the type of
       political maneuvering that the restriction intend[ed] to prevent because she signed the
       nominating petition of a candidate for the very office for which she intended to run, in effect,
       supporting the nomination of her own opponent.” Id. The court then held “section 8-8 of the
       Election Code prohibit[ed] signing a nominating petition for a candidate from one political
       party and then running as a candidate for another political party in the same election cycle.” Id.
       at 181, 946 N.E.2d at 1117-18.
¶ 24        Schmidt argues Rosenzweig did not depend on the sequencing of signatures and supports
       her position that Moeller could not run as a candidate for the Democratic Party when she also
       signed the petition of a Republican Party candidate. First, to the extent Schmidt asserts
       Rosenzweig stands for the proposition that the sequencing of signatures is irrelevant, we
       disagree. We note that given the factual circumstances in Rosenzweig, it is wholly consistent
       with Watkins. Specifically, because the respondent in Rosenzweig first signed the petition of a
       Democratic candidate, she could not later run as a Republican candidate. Second, in
       Rosenzweig, the First District relied heavily on its finding that the respondent engaged in an
       “egregious” from of political maneuvering, noting she signed the petition of a Democratic
       candidate and then ran for the same office as a Republican. The present case is factually
       distinguishable, in that Moeller did not sign the nominating petition of her opponent but of a

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       Republican candidate running for a completely separate office. Additionally, the record fails to
       suggest that she was engaging in any type of political maneuvering or that she did anything
       more than inadvertently sign petitions for more than one party.
¶ 25       Next, to the extent Schmidt challenges Watkins as wrongly decided, we disagree. Contrary
       to Schmidt’s assertions, Watkins did not craft a “sequence of signing exception” into the
       Election Code. Rather, it determined the consequences for a violation of a restriction in the
       Election Code where the statute was otherwise silent and ambiguous. Additionally, we note
       that “[w]here *** the legislature chooses not to amend a statute after a judicial construction, it
       will be presumed that the legislature acquiesced in the court’s statement of legislative intent.”
       Nelson v. Artley, 2015 IL 118058, ¶ 23, 40 N.E.3d 27. In this instance, Watkins was decided in
       1984. Given the legislature’s failure to amend the relevant statutory language, we find the First
       District’s interpretation of that language in Watkins is consistent with legislative intent.
       Further, although Watkins involved the validity of only voter signatures, we find no reason to
       hold it inapplicable to the signatures of a candidate for office.

¶ 26                                   III. CONCLUSION
¶ 27      For the reasons stated, we affirm the circuit court’s judgment affirming the Board’s
       decision.

¶ 28      Affirmed.




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