                                Illinois Official Reports

                                       Appellate Court



                 Jackson-Hicks v. East St. Louis Board of Election Commissioners,
                                    2015 IL App (5th) 150028



Appellate Court            EMEKA JACKSON-HICKS, Petitioner-Appellant, v. THE EAST ST.
Caption                    LOUIS BOARD OF ELECTION COMMISSIONERS, and its
                           Members, ELMER D. JONES, Chairman, EDNA R. ALLEN,
                           Vice-Chairman, and JOSEPH McCASKILL, Secretary, and ALVIN
                           L. PARKS, JR., Candidate for Mayor, Respondents-Appellees.


District & No.             Fifth District
                           Docket No. 5-15-0028


Filed                      February 17, 2015


Held                       Substantial compliance with the number of valid signatures required
(Note: This syllabus for an independent candidate’s nomination papers is sufficient to
constitutes no part of the retain his name on the ballot for an upcoming mayoral election.
opinion of the court but
has been prepared by the
Reporter of Decisions
for the convenience of
the reader.)




Decision Under             Appeal from the Circuit Court of St. Clair County, No. 14-MR-496;
Review                     the Hon. Heinz M. Rudolf, Judge, presiding.




Judgment                   Affirmed.
     Counsel on               Eric W. Evans, of Roth Evans P.C., of Granite City, for appellant.
     Appeal
                              Garrett P. Hoerner, of Becker, Paulson, Hoerner & Thompson, P.C.,
                              of Belleville, for appellee Alvin L. Parks, Jr.

                              Richard Sturgeon, of Belleville, for other appellees.



     Panel                    JUSTICE SCHWARM delivered the judgment of the court, with
                              opinion.
                              Justices Welch and Moore concurred in the judgment and opinion.




                                               OPINION

¶1         In this expedited appeal, we are asked to determine whether substantial compliance with
       the signature requirement for an independent candidate’s nomination papers is sufficient to
       retain his name on the ballot for an upcoming mayoral election. For the following reasons, we
       conclude that it is.

¶2                                           BACKGROUND
¶3         The petitioner, Emeka Jackson-Hicks, a candidate for the office of mayor of East St. Louis,
       filed an objector’s petition with the East St. Louis Board of Election Commissioners (the
       Board) challenging the nomination papers of incumbent candidate Alvin Parks, Jr. (Parks). See
       10 ILCS 5/10-8 (West 2012). The petitioner maintained that Parks’ name should be excluded
       from the ballot for the February 24, 2015, consolidated primary election on the grounds that his
       nomination papers failed to include the minimum number of voter signatures required by law.
¶4         On December 10, 2014, the Board held a hearing on the petitioner’s objection. See 10
       ILCS 5/10-9 (West 2012). The evidence before the Board established that pursuant to section
       10-3 of the Election Code (10 ILCS 5/10-3 (West 2012)), Parks’ nomination papers required a
       minimum of 136 voter signatures. The evidence further established that although Parks had
       garnered a total of 171 signatures, 48 had been deemed invalid. His nomination papers thus
       included a total of 123 valid signatures, 13 short of the minimum required. Notably, when
       arguing that the petitioner’s objection should be denied, the respondents cited Atkinson v.
       Schelling, 2013 IL App (2d) 130140, as controlling precedent.
¶5         At the conclusion of the hearing, the Board unanimously voted to deny the petitioner’s
       objection and subsequently issued a written statement of its findings and decision. See 10 ILCS
       5/10-10 (West 2012). In its written statement, the Board held that although Parks had been
       statutorily required to obtain 136 valid signatures on his nomination papers, he had
       substantially complied with the requirement by obtaining 123. The Board thus ruled that



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       Parks’ name would remain on the ballot for the February 24, 2015, consolidated primary
       election.
¶6         On December 12, 2014, in the circuit court of St. Clair County, the petitioner filed a
       petition for judicial review of the Board’s decision. See 10 ILCS 5/10-10.1 (West 2012). On
       January 12, 2015, the cause proceeded to a hearing. At the hearing, citing Atkinson and Merz v.
       Volberding, 94 Ill. App. 3d 1111 (1981), as directly on point, the respondents maintained that
       the Board had rightfully determined that Parks’ name should remain on the ballot because he
       had substantially complied with section 10-3. In response, noting that Atkinson had been
       decided by the Second District Appellate Court and Merz had been decided by the First
       District, the petitioner argued that the circuit court was bound to follow the Fifth District’s
       decisions in Powell v. East St. Louis Electoral Board, 337 Ill. App. 3d 334 (2003), and
       Knobeloch v. Electoral Board, 337 Ill. App. 3d 1137 (2003), both of which held that
       substantial compliance with a mandatory provision of the Election Code is insufficient. The
       respondents countered that Powell and Knobeloch did not involve section 10-3 and that both
       cases predated Goodman v. Ward, 241 Ill. 2d 398 (2011), in which the supreme court
       acknowledged that substantial compliance can satisfy a mandatory provision of the Election
       Code. Agreeing with the respondents, the circuit court ultimately concluded that it was
       “bound” to follow Atkinson and affirmed the Board’s decision.
¶7         On January 20, 2015, the petitioner filed a timely notice of appeal. On February 6, 2015,
       we granted the petitioner’s motion to expedite her appeal pursuant to Illinois Supreme Court
       Rule 311(b) (eff. Feb. 26, 2010).

¶8                                            DISCUSSION
¶9         On appeal, citing Powell and Knobeloch, the petitioner asserts that the Board erroneously
       determined that substantial compliance with section 10-3’s signature requirement is
       acceptable. The petitioner further suggests that Atkinson and Merz were wrongly decided and
       established an amorphous and unworkable standard.
¶ 10       The respondents maintain that the provision at issue is directory rather than mandatory and
       that even if it is mandatory, Atkinson, Merz, and Goodman support the Board’s decision. The
       respondents further distinguish Powell and Knobeloch as “inapposite to this case.”

¶ 11                                       Standards of Review
¶ 12       There are three types of questions that a court may encounter when reviewing a decision of
       an electoral board: questions of fact, questions of law, and mixed questions of fact and law.
       Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 210 (2008).
       “An administrative agency’s findings and conclusions on questions of fact are deemed prima
       facie true and correct” and will not be disturbed unless they are against the manifest weight of
       the evidence. Id. “[F]actual determinations are against the manifest weight of the evidence if
       the opposite conclusion is clearly evident.” Id.
¶ 13       “[W]here 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.” Goodman, 241 Ill. 2d at 406.
       Whether a statute is mandatory or directory is an issue of law that is also reviewed de novo.
       O’Brien v. White, 219 Ill. 2d 86, 97 (2006).

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¶ 14       “A mixed question of law and fact asks the legal effect of a given set of facts.”
       Comprehensive Community Solutions, Inc. v. Rockford School District No. 205, 216 Ill. 2d
       455, 472 (2005). “[I]n resolving a mixed question of law and fact, a reviewing court must
       determine whether established facts satisfy applicable legal rules.” Id. The “clearly erroneous”
       standard of review applies to mixed questions of law and fact. Cinkus, 228 Ill. 2d at 211. A
       decision is considered clearly erroneous when a reviewing court is left with a definite and firm
       conviction that a mistake has been made. Id.
¶ 15       Because judicial review of an electoral board’s decision is considered administrative
       review, we review the Board’s decision, not the decision of the circuit court. Jackson v. Board
       of Election Commissioners, 2012 IL 111928, ¶ 46. Here, the Board’s determination that the
       statutory provision at issue requires only substantial compliance is a question of law (see
       O’Brien, 219 Ill. 2d at 97), while its determination that Parks substantially complied with the
       statute presents a mixed question of law and fact (see Samuelson v. Cook County Officers
       Electoral Board, 2012 IL App (1st) 120581, ¶ 11).

¶ 16                                       Powell and Knobeloch
¶ 17       In Powell, three mayoral candidates’ names were kept off the ballot for their failure to
       comply with the statement-of-economic-interest requirement set forth in section 10-5 of the
       Election Code (10 ILCS 5/10-5 (West 2000)). Powell, 337 Ill. App. 3d at 336. After noting that
       in Bolger v. Electoral Board, 210 Ill. App. 3d 958, 959-60 (1991), the appellate court had
       determined that the requirement’s use of the word “must” made the requirement mandatory,
       the Powell court rejected the candidates’ contention that their good-faith substantial
       compliance was sufficient. Powell, 337 Ill. App. 3d at 337. The court further noted that in
       DeFabio v. Gummersheimer, 192 Ill. 2d 63, 66 (2000), the supreme court held that “a
       mandatory provision of the Election Code” must be strictly enforced. Powell, 337 Ill. App. 3d
       at 338.
¶ 18       In Knobeloch, we adhered to our holding in Powell when rejecting the candidate’s
       argument that his substantial compliance with the notarization requirements of sections 10-4
       and 10-5 of the Election Code (10 ILCS 5/10-4, 10-5 (West 2000)) was sufficient. Knobeloch,
       337 Ill. App. 3d at 1139-40. We noted that both requirements used the word “shall” and that
       there was “no dispute” that the provisions at issue were “mandatory.” Id. at 1139. We further
       noted that a “mandatory provision is one that will describe the consequences of failing to
       follow its provisions.” Id.
¶ 19       In pertinent part, section 10-3 provides as follows:
               “Nominations of independent candidates for public office within any district or
               political subdivision less than the State, may be made by nomination papers signed in
               the aggregate for each candidate by qualified voters of such district, or political
               subdivision, equaling not less than 5%, nor more than 8% (or 50 more than the
               minimum, whichever is greater) of the number of persons, who voted at the next
               preceding regular election in such district or political subdivision in which such district
               or political subdivision voted as a unit for the election of officers to serve its respective
               territorial area.” 10 ILCS 5/10-3 (West 2012).
¶ 20       Unlike the provisions addressed in Powell and Knobeloch, the pertinent provision of
       section 10-3 “does not contain mandatory language.” McNamara v. Oak Lawn Municipal


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       Officers Electoral Board, 356 Ill. App. 3d 961, 966 (2005). When enacting section 10-3, “[t]he
       legislature used the word ‘may’ in describing how nominations may be made.” Id.
       Additionally, “[t]he word ‘shall’ appears several times within section 10-3 but it does not
       appear in the pertinent provision.” Id. As a matter of statutory construction, it has thus been
       held that “the legislature did not intend that this provision be mandatory.” Id.; see also People
       v. One 1998 GMC, 2011 IL 110236, ¶ 16 (noting that the “legislature’s use of the word ‘may’
       generally indicates a permissive or directory reading, rather than a mandatory one”).
¶ 21       Moreover, unlike sections 10-4 and 10-5, both of which indicate that a candidate’s failure
       to comply will invalidate his or her nominations papers (see 10 ILCS 5/10-4, 10-5 (West
       2012)), “nothing in section 10-3 addresses what the remedy is for noncompliance with section
       10-3” (Atkinson, 2013 IL App (2d) 130140, ¶ 20). “[N]or does it provide that compliance is
       essential to effect a valid nomination.” McNamara, 356 Ill. App. 3d at 966. When a provision
       of the Election Code does not provide a penalty for failure to comply, the provision is deemed
       directory rather than mandatory. O’Brien, 219 Ill. 2d at 97. “By contrast, when an Election
       Code provision specifies the consequences of noncompliance, the provision has been held to
       be mandatory.” Id.
¶ 22       Because section 10-3’s signature requirement is directory rather than mandatory, the
       petitioner’s reliance on Powell and Knobeloch is misplaced, and the Board correctly
       determined that substantial compliance is sufficient. Directory provisions require only
       substantial compliance. Schultz v. Performance Lighting, Inc., 2013 IL App (2d) 120405, ¶ 14;
       see also People ex rel. Meyer v. Kerner, 35 Ill. 2d 33, 39 (1966). Moreover, as the respondents
       observe, Powell and Knobeloch both predate the supreme court’s recognition that in some
       instances, substantial compliance can satisfy even a mandatory provision of the Election Code.
       See Goodman, 241 Ill. 2d at 409; Akin v. Smith, 2013 IL App (1st) 130441, ¶ 9.

¶ 23                                         Merz and Atkinson
¶ 24       In Merz, where three independent candidates’ nomination papers did not contain the
       minimum number of voter signatures required by section 10-3, objections seeking to keep the
       candidates’ names off the ballot for the impending municipal election were filed with the
       electoral board. Merz, 94 Ill. App. 3d at 1113-14. Following a hearing, the board overruled the
       objections and ordered that the candidates’ names be placed on the ballot. Id. at 1113. After the
       circuit court affirmed the board’s ruling, the objectors brought an expedited appeal to the
       appellate court. Id.
¶ 25       On appeal, the appellate court affirmed the board’s decision with respect to one of the three
       candidates on the basis of estoppel, since the candidate had relied on information provided by
       the city clerk as to the number of signatures that he needed. Id. at 1115-17. With respect to the
       other two candidates who were unable to claim estoppel, the appellate court held that despite
       the fact that they had failed to comply with the minimum statutory signature requirement, they
       had “demonstrated at least a minimal appeal to the voters.” Id. at 1118. The court noted that
       “[t]he primary purpose of the signature requirement is to reduce the electoral process to
       manageable proportions by confining ballot positions to a relatively small number of
       candidates who have demonstrated initiative and at least a minimal appeal to eligible voters”
       and that removing the candidates’ names from the ballot would penalize “not only the
       candidates themselves, but also the voters.” Id. Citing Illinois State Board of Elections v.
       Socialist Workers Party, 440 U.S. 173 (1979), the court further stated, “While we recognize

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       the State’s interest in regulating elections by setting such requirements, we also recognize the
       right of qualified voters to cast their votes effectively.” Merz, 94 Ill. App. 3d at 1118. The court
       thus determined that allowing all three candidates’ names to appear on the ballot best served
       the interests of justice. Id. We note that the candidates in Merz were statutorily required to
       obtain at least 778 signatures, but they only had “more than 550 signatures and less than 610.”
       Id. at 1113-14.
¶ 26        In Atkinson, two mayoral candidates submitted nomination papers with less than the
       statutorily required minimum of 123 voter signatures. Atkinson, 2013 IL App (2d) 130140,
       ¶¶ 3-4. One of the candidates submitted 110 signatures; the other submitted 105; and both had
       been told by the village clerk that they needed a minimum of 80. Id. ¶¶ 3, 5. Asserting that their
       failure to obtain 123 signatures rendered the candidates’ nomination papers invalid, the
       petitioner filed objections arguing that the candidates’ names should not appear on the ballot.
       Id. ¶ 4. After the electoral board overruled the objections and the circuit court affirmed the
       board’s decision, the petitioner appealed. Id. ¶ 8.
¶ 27        On appeal, stating that the facts before it were “almost identical” to those in Merz, the
       appellate court affirmed the board’s decision and adopted Merz’s holding. Id. ¶¶ 13, 19. The
       court thus determined that the doctrine of estoppel was applicable and that, alternatively, the
       candidates had “demonstrated at least a minimal appeal to the voters.” Id. ¶¶ 15, 21. The court
       further stated that “[i]t is a fundamental principle that access to a place on the ballot is a
       substantial right and not lightly to be denied” and that denying the candidates access to the
       electoral ballot would penalize the voters as well as the candidates. Id. ¶ 21. The court also
       noted that the disparities in the number of votes that the candidates needed were less than those
       in Merz. Id.
¶ 28        Keeping in mind that we must balance competing interests (see Socialist Workers Party,
       440 U.S. at 184-85; Huskey v. Municipal Officers Electoral Board, 156 Ill. App. 3d 201, 205
       (1987)), we conclude that when determining whether a candidate has substantially complied
       with section 10-3’s signature requirement, the “minimal appeal” standard employed in Merz
       and Atkinson provides a reasoned approach that recognizes “Illinois courts favor ballot access
       for candidates who wish to run for public office” (Forcade-Osborn v. Madison County
       Electoral Board, 334 Ill. App. 3d 756, 760 (2002)). The standard is further consistent with the
       notion that when determining whether substantial compliance has been achieved, courts may
       consider “whether the deviation impairs the purpose of the specific statutory provision at
       issue.” Atkinson v. Roddy, 2013 IL App (2d) 130139, ¶ 17. As noted, “the primary purpose of
       the signature requirement is to reduce the electoral process to manageable proportions by
       confining ballot positions to a relatively small number of candidates who have demonstrated
       initiative and at least a minimal appeal to eligible voters.” Heabler v. Municipal Officers
       Electoral Board, 338 Ill. App. 3d 1059, 1062 (2003); Merz, 94 Ill. App. 3d at 1118. We believe
       that this purpose will not be frustrated where the name of a candidate who has substantially
       complied with section 10-3 in good faith is allowed to appear on a ballot. We further believe
       that denying such a candidate his or her right to run for office would be a drastic remedy that
       would not best serve the interests of justice. See Atkinson, 2013 IL App (2d) 130140, ¶ 20;
       McNamara, 356 Ill. App. 3d at 967; Merz, 94 Ill. App. 3d at 1118.
¶ 29        We are not unsympathetic to the petitioner’s position, but we are constrained to interpret
       section 10-3’s signature requirement as being directory rather than mandatory. “We will not
       read words or meanings into a statute when the legislature has chosen not to include them.”

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       People v. Johnson, 2013 IL 114639, ¶ 12. “Therefore, any remedy lies with the legislature, not
       the courts, if the legislature may be so inclined.” Id.

¶ 30                                       The Board’s Decision
¶ 31       The evidence before the Board established that Parks was statutorily required to have at
       least 136 voter signatures on his nomination papers. The evidence further established that he
       submitted a total of 171 signatures. For reasons not entirely apparent from the record, however,
       48 of those signatures were deemed invalid. His nomination papers thus included a total of 123
       valid signatures, 13 less than the requisite minimum.
¶ 32       Under these circumstances, we cannot conclude that the Board’s finding that Parks
       substantially complied with section 10-3 is clearly erroneous. Had all of the signatures that
       Parks submitted been valid, he would have had 35 more than he needed, but he ultimately fell
       13 signatures short. He nevertheless demonstrated initiative and “at least a minimal appeal” to
       the eligible voters. Atkinson, 2013 IL App (2d) 130140, ¶ 21; Merz, 94 Ill. App. 3d at 1118; cf.
       Samuelson, 2012 IL App (1st) 120581, ¶ 36 (“A candidate is deemed not to be in substantial
       compliance with the Election Code when he ‘completely ignores one of the statutory
       elements.’ ” (quoting Jones v. Dodendorf, 190 Ill. App. 3d 557, 561 (1989))). Furthermore,
       removing Parks’ name from the ballot would deprive him of his right to run for office and
       would prevent the voters of East St. Louis from reelecting their incumbent mayor if they desire
       to do so. See Atkinson, 2013 IL App (2d) 130140, ¶ 21; Merz, 94 Ill. App. 3d at 1118. Because
       we are not left with a definite and firm conviction that a mistake has been made, we
       accordingly affirm the circuit court’s judgment affirming the Board’s decision.
¶ 33       We lastly address the petitioner’s contention that allowing electoral boards to employ the
       minimal-appeal standard will result in confusion and random results. In Merz, for instance, the
       candidates obtained less than 80% of the required signatures. In Atkinson, the candidates
       obtained less than 90%. In the present case, after the invalid signatures were discounted, the
       candidate obtained 90%. Understandably, the petitioner thus asks, “Where does an electoral
       board or court draw the line?” We cannot answer that question, however, even if we were
       inclined to do so.
               “It is the duty of this court to decide actual controversies which can be carried into
               effect, and not to give opinions upon moot questions or abstract propositions, or to
               declare principles or rules of law which cannot affect the matter in issue in the case
               before it [citation], as decisions of this nature could have an advisory effect only.”
               South Stickney Park District v. Village of Bedford Park, 131 Ill. App. 3d 205, 209
               (1985).
¶ 34       Moreover, it is an electoral board’s duty to decide whether a candidate’s nomination papers
       “are valid or whether the objections thereto should be sustained” (10 ILCS 5/10-10 (West
       2012); People ex rel. Martin v. White, 329 Ill. App. 81, 91 (1946)), and as noted, we review an
       electoral board’s determination as to whether a candidate has substantially complied with the
       signature requirement of section 10-3 as a mixed question of law and fact (see Samuelson,
       2012 IL App (1st) 120581, ¶ 11). “Such review is significantly deferential to an agency’s
       experience in construing and applying the statutes that it administers.” Comprehensive
       Community Solutions, Inc., 216 Ill. 2d at 472. Affording such deference, we trust that an
       electoral board employing the minimal-appeal standard will exercise its judgment judiciously
       and will consider all relevant facts and circumstances when deciding whether a candidate has

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       substantially complied with section 10-3’s signature requirement. Rather than solely focusing
       on a specific percentage, such decisions should be made on a case-by-case basis giving due
       consideration to the requirement’s primary purpose. We lastly note that a candidate would be
       ill-advised to view the standard as a safety net.

¶ 35                                         CONCLUSION
¶ 36      For the foregoing reasons, we hereby affirm the circuit court’s judgment affirming the
       Board’s denial of the petitioner’s objection.

¶ 37      Affirmed.




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