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                                     Appellate Court                          Date: 2018.03.29
                                                                              13:19:17 -05'00'



           Neal v. Cook County Officers Electoral Board, 2018 IL App (1st) 180321



Appellate Court         ALAN NEAL, Plaintiff-Appellant, v. THE COOK COUNTY
Caption                 OFFICERS ELECTORAL BOARD and ITS MEMBERS; DAVID
                        ORR, Cook County Clerk, by His Designee Daniel P. Madden,
                        Chairman; KIMBERLY FOXX, Cook County State’s Attorney, by
                        Her Designee Sisavahn Baker, Member; DOROTHY BROWN, Cook
                        County Clerk of the Circuit Court, by Her Designee Gloria Legette,
                        Member; DAVID ORR, in His Official Capacity as Cook County
                        Clerk; and ANTHONY JOHNSON, Defendants-Appellees.



District & No.          First District, Second Division
                        Docket No. 1-18-0321



Filed                   February 28, 2018



Decision Under          Appeal from the Circuit Court of Cook County, No. 18-COEL-09; the
Review                  Hon. Robert W. Bertucci, Judge, presiding.



Judgment                Reversed with directions; mandate to issue immediately.


Counsel on              Del Galdo Law Group, LLC, of Berwyn (Tiffany Nelson-Jaworski, of
Appeal                  counsel), for appellant.

                        No brief filed for appellees.
     Panel                       PRESIDING JUSTICE NEVILLE delivered the judgment of the
                                 court, with opinion.
                                 Justices Pucinski and Mason concurred in the judgment and opinion.


                                                     OPINION

¶1         Anthony Johnson filed nomination papers for the office of Cicero Township
       committeeman. Alan Neal filed an objection to the papers on grounds that the nomination
       petitions stated that the signers were electors in the Township of Oak Park, not Cicero
       Township. The Cook County Officers Electoral Board (Board) denied the objection, and the
       circuit court affirmed. We find that the inconsistency on the face of the petition renders it
       invalid, and therefore we reverse the Board’s decision and order the Board to remove
       Johnson’s name from the March 20, 2018, General Primary Election ballot.

¶2                                         BACKGROUND
¶3        Anthony Johnson sought to run as the Green Party’s candidate for the office of Cicero
       Township committeeman. He circulated the following petition:
             “We, the undersigned, members of and affiliated with the Green Party and qualified
             primary electors of the Green Party, in the Township of Oak Park, in the County of
             Cook, and State of Illinois, do hereby petition that the following named person or
             persons shall be a candidate(s) of the Party for the nomination/election for the office
             or offices hereinafter specified to be voted for at the Primary Election to be held on
             March 20, 2018.

              NAME                                OFFICE                          ADDRESS & ZIP CODE
             Anthony Johnson            Cicero Township Committeeman                1819 S. 59th Court
                                                 4-year term                         Cicero, IL 60804

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


                State of Illinois                                      )
                                                                           SS.
                County of Cook                                         )

                                                         -2-
             [I,] Anthony Johnson do hereby certify that I reside at 1819 S. 59th Court, in the
             Township of Cicero, Zip Code 60804, County of Cook, State of Illinois that I am 18
             years of age or older, that I am a citizen of the United States, and that the signatures
             on this sheet were signed in my presence, not more than 90 days preceding the last
             day for filing of the petitions, and are genuine, and that to the best of my knowledge
             and belief the persons so signing were at the time of signing the petition qualified
             voters of the Green Party in the political division in which the candidates are seeking
             elective office, and that their respective addresses are correctly stated as above set
             forth.
                                                        Anthony Johnson/s/
                                                        Signature of Circulator”

¶4       Alan Neal filed an objection to the nomination papers, arguing that the petition did not
     substantially comply with the requirements of the Election Code (Code) (10 ILCS 5/1-1
     et seq. (West 2016)). The Code provides:
              “The name of no candidate for *** township committeeman *** shall be printed
              upon the primary ballot unless a petition for nomination has been filed in his behalf as
              provided in this Article in substantially the following form:
                   We, the undersigned, members of and affiliated with the .... party and qualified
              primary electors of the .... party, in the .... of ...., in the county of .... and State of
              Illinois, do hereby petition that the following named person or persons shall be a
              candidate or candidates of the .... party for the nomination for (or in case of
              committeemen for election to) the office or offices hereinafter specified, to be voted
              for at the primary election to be held on (insert date).
              Name                                   Office                                  Address
              John Jones                             Governor                                Belvidere, Ill
              ***
                   I, ...., do hereby certify that I reside at No. .... street, in the .... of ...., county of ....,
              and State of ...., that I am 18 years of age or older, that I am a citizen of the United
              States, and that the signatures on this sheet were signed in my presence, and are
              genuine, and that to the best of my knowledge and belief the persons so signing were
              at the time of signing the petitions qualified voters of the .... party, and that their
              respective residences are correctly stated, as above set forth.” 10 ILCS 5/7-10 (West
              2016).
¶5       Neal argued that, because the petition’s preamble, in its first two sentences, identified the
     undersigned voters as “primary electors of the Green Party, in the Township of Oak Park,”
     the petition showed on its face that the petitioners lacked authority to nominate Johnson for
     the office of Cicero Township committeeman.
¶6       A hearing officer agreed with Neal, finding that the petition’s preamble conflicted with
     the circulator’s affidavit and created confusion. The Board rejected the hearing officer’s
     recommendation of declaring Johnson’s nomination papers invalid. The Board held:
              “As to the matter of potential confusion in the Candidate’s Petition, we believe that
              the controlling law is found in Nolan v. Cook County Officers Electoral Board, 329
              Ill. App. 3d 52 (1st Dist. 2002). In Nolan, the candidate failed to put the district in

                                                       -3-
              which he was running into the heading of his petition sheets. That information,
              however, was available elsewhere on the petition sheet, in the box on the petition
              sheet form, much as we see in this case. Here, we see the *** Township set out in the
              ‘Office’ box.”
¶7        Neal appealed to the circuit court, and the circuit court affirmed the Board’s decision.
       Neal now appeals to this court.

¶8                                           ANALYSIS
¶9         We review the decision of the Board and not the decision of the circuit court. Schwartz v.
       Kinney, 2016 IL App (3d) 160021, ¶ 11. The parties do not dispute the facts, and the case
       presents purely a legal question. Accordingly, we review the Board’s decision de novo.
       Schwartz, 2016 IL App (3d) 160021, ¶ 12.
¶ 10       The Board relied on Nolan as authority for finding the petition sufficient. In Nolan, the
       heading of the nominating petitions did not specify where the signatories could vote. The
       petitions said:
               “ ‘We, the undersigned members of and affiliated with the DEMOCRATIC PARTY
               and qualified primary voters of the DEMOCRATIC PARTY in the State of Illinois,
               do hereby petition that the following named person shall be a candidate of the
               DEMOCRATIC PARTY for nomination to the office hereinafter specified ***
                Name             Address          Office            District             Party
                MARY NOLAN       10338 SOUTH      STATE             18th SENATORIAL      DEMOCRATIC
                                 PARKSIDE         SENATOR           DISTRICT
                                 UNIT 23                            STATE OF
                                 OAK LAWN, IL                       ILLINOIS
                                 60453’ ”
               Nolan, 329 Ill. App. 3d at 53.
¶ 11      The Nolan court held that the petitions sufficiently complied with the Election Code. The
       court said:
                   “Although Nolan’s circulator’s affidavit is itself devoid of any reference to the
               18th legislative district, this court may incorporate by reference into a circulator’s
               affidavit language contained elsewhere in a nominating petition in order to satisfy a
               certification requirement under the Election Code. ***
                   *** In arguing against a finding of substantial compliance, Donnelly steadfastly
               maintains that ‘[n]owhere in the petitions is any reference made to the signers being
               residents of the 18th Legislative District.’ (Emphasis in original.) We disagree. First,
               Nolan’s circulator’s affidavit certifies that all of the signers were ‘qualified voters.’
               ***
                   Second, the prefatory language present on each of the signature sheets states that
               the signers are all ‘qualified primary voters,’ and limits the signers’ request for
               Nolan’s nomination to the ‘office hereinafter specified.’ (Emphasis added.) The office
               clearly specified on the next line of each signature sheet is that of state senator for the
               ‘18th senatorial district.’ ***
                   One cannot be a ‘qualified primary voter’ for the office of Illinois senator for the
               18th legislative district unless one resides in that district. ***


                                                    -4-
                   We conclude that by including: (1) the phrase ‘qualified voters’ in her circulator’s
               affidavit; (2) the phrase ‘qualified primary voters’ in the prefatory language of her
               signature sheets; and (3) the limiting reference to the ‘18th senatorial district,’ Nolan
               substantially complied with the certification requirement.” (Emphases in original.)
               Nolan, 329 Ill. App. 3d at 56-57.
¶ 12       Neal argues that we should distinguish Nolan on grounds that the petition here, unlike the
       petition in Nolan, presents two inconsistent identifications of the district where the
       signatories can vote. The preamble says the signatories vote in Oak Park Township, but the
       circulator’s affidavit asserts that, as far as he knows, the signatories can vote for Cicero
       Township committeeman, a privilege reserved for Cicero Township voters. Neal argues that
       the case bears more similarity to Schwartz, 2016 IL App (3d) 160021. In Schwartz, Jack
       Schwartz had his name typed on all of the nominating petitions as the circulator. However,
       his wife, Amy, signed several of the petitions in the space for the circulator’s signature. The
       Schwartz court held that the petitions did not comply with the requirement that the circulator
       must sign the circulator’s statement. The Schwartz court said, “because the affidavit contains
       two different names (petitioner’s typed name and Amy’s signature), we find the petitions to
       be facially invalid.” (Emphasis in original.) Schwartz, 2016 IL App (3d) 160021, ¶ 15. The
       court further held that the testimony of Jack and Amy did not prove substantial compliance
       with the Election Code.
¶ 13       The Schwartz court specifically distinguished Nolan:
                   “The court in Nolan held that while the circulator’s affidavit was devoid of any
               reference to the specific legislative district, such information could be gleaned from
               information found elsewhere in the nominating petition. [Citation.] The petitions in
               the instant case, however, do not offer any information clarifying the ambiguity as to
               the identity of the circulator.” Schwartz, 2016 IL App (3d) 160021, ¶ 20.
¶ 14       Nolan did not hold that the Board could ignore the assertions formally made in the
       nomination papers. From Nolan and Schwartz, we find support for the principle that the
       Board may look anywhere in the nominating petition to find the necessary information not
       presented in its usual place on the petition but the Board cannot ignore erroneous or
       inconsistent assertions on the petitions. Schwartz, 2016 IL App (3d) 160021, ¶ 15; Nolan,
       329 Ill. App. 3d at 56-58.
¶ 15       In Sullivan v. County Officers Electoral Board of Du Page County, 225 Ill. App. 3d 691,
       692-94 (1992), Hugh Murphy sought to run for the office of Republican precinct
       committeeman in precinct 129 of York Township in Du Page County. Sullivan contended
       that “Murphy’s name should have been removed from the primary ballot because his
       statement of candidacy erroneously listed the office sought as precinct committeeman for
       precinct 129 of Oak Brook Township.” Sullivan, 225 Ill. App. 3d at 692. The nominating
       petitions said that Murphy was seeking election to the office of Republican precinct
       committeeman for precinct 129 of York Township, but the statement of candidacy attached
       to the petitions erroneously listed the office sought as precinct committeeman for precinct
       129 of Oak Brook Township. The Sullivan court said:
               “There is no Oak Brook Township. Precinct 129 of York Township is, however,
               located in the Village of Oak Brook.
                                                    ***


                                                   -5-
                    *** [T]he candidate’s error in his statement of candidacy in the case at bar does
                not create any confusion as to the office for which his nominating papers were filed.
                Because Murphy could not possibly be seeking office in Oak Brook Township, which
                does not exist, it is obvious that he is seeking office in York Township, as stated four
                times in his nominating petition.” Id. at 693-94.
¶ 16       Here, the signatories all signed a statement asserting that they were “electors *** in the
       Township of Oak Park.” Because there is a Township of Oak Park (see Oak Park Township
       Homepage, http://www.oakparktownship.org (last visited Feb. 27, 2018)), we cannot ignore
       the assertion as an impossibility. The circulator’s affidavit asserts that the signatories, “to the
       best of [his] knowledge and belief *** were at the time of signing the petitions qualified
       voters *** in the political division in which the candidates are seeking elective office.”
       Because Johnson sought elective office in Cicero Township, the affidavit, under the
       reasoning of Nolan, asserts that the circulator believed that the signatories could vote in
       Cicero Township. The affidavit conflicts with the assertion in the petition’s preamble that the
       signatories could vote in Oak Park Township. The “conflict or inconsistency” on the face of
       the petition created a “basis for confusion.” See Lewis v. Dunne, 63 Ill. 2d 48, 53 (1976).
¶ 17       The courts and the Board should not ignore erroneous or inconsistent assertions in
       nominating petitions, even when we believe we can determine which assertions the signers
       intended to make and which they did not intend to make. The signatories asserted their
       affiliation with the Green Party only in the preamble, and not anywhere else in the petition.
       Thus, if we ignore the preamble completely, the signatories never asserted that they were
       “affiliated with the Green Party.” Without that assertion, they had no authority to nominate
       Johnson to run as the Green Party candidate. While we can correct omissions, and ignore
       impossible assertions, we cannot ignore positive assertions in a nominating petition. Due to
       the inconsistency on the face of the nominating petition here, we must reverse the circuit
       court’s judgment and the Board’s decision and order the Board to remove Johnson’s name
       from the March 20, 2018, General Primary Election ballot.

¶ 18                                        CONCLUSION
¶ 19       When petitioners sign a petition stating that they are electors in Oak Park Township, the
       petition cannot validly support a candidacy for the office of Cicero Township committeeman.
       Accordingly, we reverse the circuit court’s judgment and the Board’s decision and order the
       Board to remove Johnson’s name from the March 20, 2018, General Primary Election ballot.

¶ 20      Reversed with directions; mandate to issue immediately.




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