                                          2017 IL App (1st) 170486

                                                                                   SECOND DIVISION
                                                                                        May 16, 2017

                                                No. 1-17-0486


     CYNTHIA GUERRERO, CHRISTOPHER LITWIN                       )
     MICHAEL LaCASSA, DIEGO DiMARCO and                         )              Appeal from the Circuit
     FRANK HOUSWERTH,                                           )              Court of Cook County
                                                                )              No.2017 COEL 29
              Petitioners-Appellees,                            )              consolidated with
                                                                )              No. 2017 COEL 30
     v.                                                         )              No. 2017 COEL 31
                                                                )              No. 2017 COEL 32
     MUNICIPAL OFFICERS ELECTORAL BOARD                         )              No. 2017 COEL 33
     OF THE VILLAGE OF FRANKLIN PARK, et al.,                   )
     and ROBERT J. GODLEWSKI, Objector,                         )              Honorable
                                                                )              Laguina Clay-Herron,
             Respondents-Appellants.                            )              Judge Presiding.


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

                                                  OPINION

¶1           The Municipal Officer 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
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        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

        Government Ethics Act (Ethics Act) provides for an address. See 5 ILCS 420/4A-104 (West

        2016). 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.



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¶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 Illinois 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

        2016). 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-

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        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."



¶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

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          "shall be verified, dated and signed by the person making the statement." 5 ILCS 420/4A-104

          (West 2016). 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 of the City of Chicago, 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 2016).

¶ 11         Although the Code does not specifically adopt the Administrative Review Law, 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

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       No. 1-17-0486

                  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, 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 v. Ill. Dept of Employment Security, 198 Ill. 2d 380, 391

          (2000) 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'

          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.

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¶ 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 2016). 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

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          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 v. Mercury Partners, 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—

          "nomination 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]" (10 ILCS 5/10-5 (West

          2016) (emphasis added))—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 2016)), 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 2016)), it

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          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 plain reading 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 for the City of Calumet City, 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.

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¶ 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." Cortez, 2013 IL

          App (1st) 130442, ¶ 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, thus, avoid having to provide any answers—

                       truthful or otherwise—about his dealings with his own municipality." Cortez,

                       2013 IL App (1st) 130442, ¶ 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



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          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.

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          Board of Election Commissioners of the City of Chicago, 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.

¶ 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.

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¶ 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 v. Ward, 241 Ill. 2d 398, 409 (2011) ("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, 2012 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 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 that 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, 460-61(2008). We must "tread cautiously when construing statutory language

          which restrict[s] 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.



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