## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

Akin v. Sm ith , 2013 IL App (1st) 130441

Appellate Court Caption I MANI AKI N, Petitioner-Appellee
, v. ANNI E SMI TH, RespondentAppellant (Michelle Markiew icz-Qualkinbush, Ny ota T. Fig g s, Mag dalena J .Woscz y

nski and Thadde us J o nes, I ndividually and as Members of the Municipal Offic ers E l ec toral Boa rd for the City of Calumet City ; the Municipal Offic ers Electora l Boa rd for the City of Calumet City ; Ny ota T. Fig g s, as Calumet City Clerk; and David Orr, as the Cook County Clerk, Respondents).–VI CTOR F. GREEN, SR., P eti tioner-Appe llee, v. STEVON GRANT and DEB ORAH HAYNES

SH E G O G
, Re s p o n d e n ts-Appellants (Michelle Mar k ie w ic z- Q u a lk in

b u s h
, Ny ota T. Fig g s, Mag dalena J

. Woscz y nski and Thadde us J ones, I ndividually and as Members of the Municipal Offic ers Electora l Boa rd for the City of Calumet City ; the Municipal Offic ers Electora l Boa rd for the City of Calumet City ; Ny o t a T. Fig g s, as Calumet City Clerk; and David Orr, as the Cook County Clerk, Respondents).–HOPE E. AL L EN, Petitioner-Appellee
, v. RANDY BA RRON, Respondent-Appe llant (Michelle Markiew icz-Q ualkinbush, Ny ota T. Fig g s, Mag dalena J

. Woscz y n ski and Thadde us J ones, I ndividually and as Members of the Municipal Offic ers Electora l Boa rd for the City of Calumet City ; the Municipal Off

icer s Electora l B oard for the City of Calumet City ; N y ota T. Fig g s, as Calumet City Clerk; and David Orr, as the Cook County Clerk, Respondents).

District & N o. First District, F ourth Division Docke t No. 1-13-0441

Filed April 25, 2013Held

(Note : Thi s syl lab us

con st it ute s no pa r t of the opi nio n of the cour t but has bee n pre

par ed by t he Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The statements of candida cy of petitioners who wer e seeking municipal

o ff ices in a Democr atic primary elec tion substantially complied wi t h section 7-10 of the Election Code, notwithstand i n g the fac t that the notarial jurat lacke d the lang uag e that the candida te was “p er sonally known” by the notary public, since the m i n o r d eviation did not rende r

eac h candida

te’s oath invalid; there fore
, the trial court’s reversal of the E le ctora l Boa

rd’s decision striking petitioners’ names from the ballo t w a s aff irmed.

Dec ision Under Review Appea l from the Circuit Court o f C o o k County
, Nos. 2013-COEL -17, 2013-COEL -18, 2 013-COEL -19; the Hon. Alfre d J

. Paul, J udg e, presiding

.

J udg ment Circuit court aff irmed; Municipal Offic ers Elec t o ral Boa rd for the City of Calumet City

reve rsed.

Counsel on Appea l J ames P. Nally , of James P. Nally , P.C., of Chi cag o, for a ppellants.

Adam W. L asker
, of Ance l, Glink, Diamond, Bush, DiCianni & Kra fthefe r, P.C., of Chicag o, for a ppellees.

Panel J USTI CE EPS TEI N deliver ed the judg ment of the c ourt, with opinion.
J ustices Quinn and Fitzge rald Smit h concur red in th e judgme nt and opinion.

OP INION

¶ 1 This exp ed i t ed appeal involved the validity of statements of candida cy of petitioners I mani Akin, Victor F. Gre en, Sr., and Hope E. Allen (Candidates)

. Candidates soug ht to run in the Democr atic primary held on Fe bruar y 26, 201 3
, for cer

tain office s of the City of Calumet City

. Akin and Allen we re candida tes for the office of alder man. Gre en was a candidate for the office of may or. Respondents-appe llants Annie Smit h, Stevon Gra nt, Debor ah Hay

nes-Sheg og , and Randy Ba rron (Objec tors) eac h filed an objection petition, 1

Anni e Sm it h obj ect ed to I m ani Akin’s st at ement of can did acy; Ste von Gra nt and Debor ah 1 Haynes- Shegog obj ect ed to V ic tor F. Gre en, Sr.’ s st at emen t of can did acy; and Rand y Bar ron obj ect ed t o Hope E. Al le n’s st at ement of ca ndi dac y.

-2-contending that the s tatement of c andidac y was de ficient be cause the not aria l jurat di d not contain the re l ev an t lang uag e “Subscribed and sworn to (or aff irmed) befor e me by [C andidate], who is to me personally known .” (Empha sis added.) ¶ 2 The Municip al Of fi ce rs E l ec t o ral Boa

rd for the City of Calumet City (the Elec toral Boa rd) sustained the objections finding that eac h Candidate’s statement of candida cy did not comply with section 7-10 of t he Election Code (10 I L CS 5/7-10 (West 2010)) because the notarial jurat did not include languag e stating that the candida te who executed the statement of candidacy in the prese nce of the cer tify ing office r was “per sonally known” to the

cer tify ing office r. The Electora l Boa rd conclude d that eac h Candidate’s nomination pa pers

wer e defic ient as a matter of law and invalid in their entirety

. The Electora l Boa rd there fore order ed that C an d i d at es ’ names would not appea r on the ballot for the Fe bruar y 26, 2013 consolidated primary elec tion. Eac h Candidate petitioned the circ uit court of Cook County
, and the petitions wer e consolidated. On Feb ru ary 8, 2013, the circ uit court reve rsed the Electora l B oard’ s decision. On F ebrua ry 15, 2013, Objector s filed their notice of appea l of the circ uit c ourt’s ruling

. This court g rante d Objector ’s motion for expedited consideration of this case

. On Fe bruar

y 28, 2013, we enter ed an order aff irming the judgme nt of the circ uit
court of Cook County that reve rsed the Electora l Boa rd’s decision and stated that our opinion would follow. ¶ 3 The issue in this case i s wh et h er Candidates’ statements of candida cy complied with section 7-10 of the Election Code (10 I L CS 5/7-10 (West 2010)) wher e the notarial jurats did not include the phrase : “ who is to m e personally known .” Our re view is de novo

. Cinkus v. Vill a g e of Stickney Municipal Officers Electoral Board
, 228 I ll. 2d 200, 211 (2008). “[A]l though this case comes to us on appea l from the circ uit court, we are actua lly revie wing the Electora l Boa

rd’s decision ***.” Rita v. Mayde n , 364 I ll. App. 3d 913, 919 (2006). This court is not bound by

an administrative a g ency ’s interpre tation of a statute. King v. Justice Party
, 284 I ll. App. 3d 886, 888 (1996). Howeve r, althoug h we revie w the statute de novo , the Electora l Boa

rd ’s interpre tation of the Code is entitled to some defe renc e, as it is the entity char g ed with interpre ting the Election Code. Rita v. Mayde n , 364 I ll. App. 3d at 919. ¶ 4 Section 7-10 of the E lection Code states in per tinent part:
“F orm of petition for nomination. The na me of no candidate *** shall be printed upon the primary ballot unless a petition for nomination has been filed i n h i s b ehalf as provided in this Article in substantially the following form: We, the undersig ned, members of and aff iliated with the

.... party ***, do here by petition that the foll owing named pe rs o n o r p ersons shall be a candida te *** of t he .... party for the nomination for *** the of fice *** here inafter specifie d, to be voted for at the primary

elec tion to be held on (insert da te).

* * *
I
, ...., do here by cer

tify that I reside at No.

.... street, in the

.... of
...., county of
...., and State of ....., that I am 18 y ear s of age or ol der, tha t I am a citizen of t he United States, and that the s igna

tures on this sheet were signe d in my presen ce , an d ar e genuine
, and that to t h e b est of my knowledg e and belief the persons so signing wer e at the time of signing the petitions qualified voters of the

.... party , and that their respe ctive residenc es

-3-are corr ectly stated, as a

bove set for

th.

***
Subscribed and sw orn to befor e me on ( insert date)

. * * *
*** Eac h petition must include as a par t thereof , a stateme nt of ca

ndidacy for each

o f the candidates ***. This statement *** shall reque st that the candida te’s n am e b e place d upon the officia l ballot, and shall be subscribed and sworn to by such candidate before some officer authorized to take acknowledgme nt of deeds in the State and s hall be in substantiall

y the following form : Statement of Candidac y * * *
I
, ...., being first duly sworn, say that I reside at

.... Street in the city (or village ) of
...., in the county of
...., State of I llinois ; that I am a qualified voter there in and am a qualified primary voter of the ..

. . p ar t y ; t h at I am a candida te for nomination (for elec tion in the

case of committeeman and deleg ates and alterna te deleg ates) to the office of

.... t o be voted upon at the primary elec tion to be held on (insert date) ; that I am leg ally qualified (including being the holder of any license that may be an elig ibilit y require ment for the off i ce I s ee k the nom ination for) to hold such office and that I have filed (or I will file b ef o re the close of the petition filing period) a statement of economic interests as require d by the I llinois Gover nmental Ethics Act and I here by reque st tha t my name be printed upon the officia l pr imary ballot for nomination for (or elec tion to in the case of committeemen and de leg ates a nd alternate deleg ates) suc h office

. Signed ...................... Subscribed and sworn to (or aff irmed) befor e me by
...., who is to me personally known , on (insert da te). Signed ..................... (Off icial Chara cter ) (Seal, if of

fice r has one .)” ( Emphases a dded.) 10 I L CS 5/ 7-10 (West 2010).
As noted, the notarization for the petition she et mere ly states: “Subscribed to a nd sworn to befor e me on (insert date),” while the not ari z ation for the statement of candida cy contains the following form: “Subscribed and sworn to (or aff irmed) befor e me by *** who is to me personally known , on (insert da te).” (Emphasis adde d). ¶ 5 Citi ng Nelson v. Union W ire Rope Corp.
, 31 I ll. 2d 69, 100 (1964), the Electora l B oard stated that “[i] n construing statutory lang uag e that addre sses two distinct matters in the same section and in which matters are trea ted differ ently by the leg islature, I lli n o i s co u rt s have held that the leg islature’s intent was that the two matters be addre ssed i n wh o l l y differ ent way s as stated.” Objector s now argue that the Electora l Boa rd corr ectly deter

mined that the
statements of candida cy wer e leg ally defe ctive and invalid beca use “[s] ection 7-10 of the Election Code provides fo rm l an g uag e for two separ ate and distinct documents used by candidates running as independe nts for municipal office in I llinois : (1) a petition she et that individuals use to obtain signatures from voters seeking to nominate a candida te for elec tive

-4-office
, and (ii) the Statement of Candidacy that candida tes use to state their qualifica tions for

their soug ht elec tive office and aff irmatively decla

re their desire to acc ept the nomination.” Objector s contend that the differ ence in the lang uag e indicates a leg is l at i v e intent for “heig htened standa

rds in the ce rtification proc ess for Stateme nts of Candidacy .” ¶ 6 Wit h respe ct to the separat e n o t ar i z at ion forms, our supreme court has explained as follows:
“The g ener al purpose of section 7-10 and rela ted provisions of the Election Code is
to provide an order ly proce dure wher eby quali fi ed persons seeking public office may enter primary elec tions. The petitions signe d by elec tors and the statement of candida cy

sworn to by

the prospec tive candida te ar e eac h intended to se rve particula r purposes in this re g ard. Whil e their suffic iency must be determined with r efe renc e to the particula r function eac h was desig ned to acc omplish, it was not intended thatfor all purposes they should be considered separate and apart as if the other did not exist

. To th e co n trary , section 7-10 provides that nominating petitions shall incl u d e a s t atement of candidacy

‘ as a part thereof

.’ ” ( Emphases a dded.) Lewis v. Dunne , 63 I ll. 2d 48, 53-54 (1976). Although the issue in Lewis v. Dunne was not rele vant to the issue in the prese nt appea l, we cite it only to point out that the two subsections of section 7-10 are not nece ssarily “two distinct matters” trea

ted diffe rently

by the leg islature, as O bjectors c ontend. ¶ 7 We first consider whether section 7-10 of the Elec tion Code is mandatory or direc tory

. Citi ng O’Connor v. Cook County Officers Electoral Board
, 281 I ll. App. 3d 1108 (1996), and Madden v

. Schumann
, 105 I ll. App. 3d 900 (1982), Candidates contend that this court has acknow ledg ed that section 7-10 of the Election Code contains both mandatory elements and dire ctory

provisions. ¶ 8 As we ha

ve explained:
“Whether a statute is mandatory or direc tory

depends on the leg islature’s intent, w hich is asce rtained by examining the nature and object of the statute and the conseque nces which would result from any g iven construction. [C itation.] On one hand, a statute in the Election Code may g ener ally be g iven a mandatory construction if it expressly states that failure to act in the manner set out in the statute will void t he ballot. [Ci tation.] On the other, a statute m ay gen er ally be construed as direc tory if it simply presc ribes the perf ormanc e of cer

tain acts in a s p ec i fi c manner , and does not expressly state that compliance is essential to the validity of t he ballot. [C itation.]

. That i s, [i ]n construing
stat u t o ry provisions reg

ulating elec tions the courts g ener ally have tended to hold direc tory those require ments as to which the leg islature has not clea rly indicated a contra ry intention, particula

rly wher e such require ments do not contribute substantially
to the i nteg rity of t he election proce ss. [ Citation.] ” (I nterna l quotation marks omi tted.) Schwallensteck

er v. Rull , 2012 I LApp (4th) 120754, ¶ 16. ¶ 9 To the extent that section 7-10 of the Election Code is a mandatory rathe r than a dire ctory statute, the I llinois Supreme Court has acknow ledg ed that substantial compliance can satisfy mandatory statutory requi r e me n ts g o v e r n in g s ta te me n ts o f candida cy

. See Goodman v. W ard
, 241 I l l

. 2 d 3 9 8, 409-10 (2011) (noting that “[t] he statutory require ments g overning statements of c andidac y

and oaths a

re mandatory ” and that “[i] f a candida te’s stateme nt of

-5-candida cy does not substantial ly comply with the statute, the candida te is not entitled to have

his or her name appea

r on the primary ballot” (empha sis added) ). This court has also applied the doctrine of substantial compliance to the mandatory provisions of the Election Code. See,
e.g. , Cunningham v. Schaeflein
, 2012 I L App (1st) 120529, ¶ 23 (“[s]ubs tantial compliance

can satisfy a mandatory provision of the Election Code”); see also Samuelson v. Cook County Officers Electoral Board
, 2012 I L App (1st) 120581, ¶ 29 (“Ou r co u rt s have repe atedly

rec og nized that substantial, rathe r than strict, compliance is the proper standard by which to evaluate deviations from cer tain mandatory provisions of the Election Code.”); Jakstas v. Koske
, 352 I ll. App. 3d 861, 864 (2004) (“Substant i al co m p l i ance can satisfy even a mandatory provision of the Election Code.”); Bergman v. Vachata
, 347 I ll. App. 3d 339, 345-46 (2004) (re aff

irming prior holding that substanti al compliance can satisfy even mandatory provisions of the Election Code); Brennan v. Kolman
, 335 I ll. App. 3d 716, 720, 781 N.E.2d 644, 647 (2002) (“substantial compliance can satisfy even a mandatory provision of the Code”); K

i n g v. Justice Party
, 284 I ll. App. 3d 886, 890 (1996) (same) ; Sakonyi v. Lindsey , 261 I ll. App. 3d 821, 826 (1994) (same); Panarese v . Hosty , 104 I ll. App. 3d 627 (1982) (same) ; but see Knobeloch v. Electoral Board
, 337 I l l

. App. 3d 1137, 1140 (2003) (“substantial compliance [wit h a mandatory provision of the Election Code] is no longe r sufficie nt”). ¶ 10 Citi ng Bowe v. Chicago Electoral Board
, 79 I ll. 2d 469 (1980), Objector s argue that the Electora l Boa

rd corr ectly deter

mined that the cer

tification require ment of section 7-10 of the Code is mandatory and, there fore
, the doctrine of substantial compli ance could not be invoked in this case

. We disag ree with the lat t er contention. As this court has previously explained: “we do not interpre t B o w e as rejecting the doctrine of substantial compliance

. Rather, in Bowe there was no substantial compliance
, as a matter of fact

. Thus, there was no compliance .” (Emphase s in orig inal and omitted.) Bergman v. Vachata
, 347 I ll. App. 3d 339, 346 (2004). ¶ 11 Reading the statute in its entirety
, we ag ree with the observa tion of the Ma d den and O’Connor courts that sec tion 7- 10 of the Election Code contains both mandatory elements and direc tory provisions. We ag ree with Candidates that their forms wer e i n “s trict” compliance with the manda t o ry elements and that the alleg ed defic iencies rela ted to 2 direc tory provisions that provided that the statement of candida cy “shall be in substantial ly the following form.” ( E mp h a s is added.) Howeve r, even assuming arguendo that section 7-10 taken as a whole is a mandatory statute, and apply ing the doctrine of substantial compliance consistent with the case law noted above, we conclude that C an d i d at es substantially complied with section 7-10’s require ments even though the notarial jurat did not contain the lang uag e that the c andidate w as “pe rsonally known” to the c ertify

ing of fice r.

I t is undi spu te d tha t al l st at ements of can did acy inc lud ed: (a ) the name and add re ss of eac h 2

can did at e; (b) the off

ic e eac h was see king; (c ) a st at ement tha t the Cand ida te was a qua li fi ed pri m ar y voter of the Dem ocr at ic par ty; (d) a st at ement of eco nomic int er est ; and (e ) the re que st to be pla ced

on the bal lot

. I t was al so u n d is put ed tha t eac h Cand ida te “su bsc ri bed and swor e to his or her
st at ement of can did acy bef ore an off ic er aut hor ized to ta ke acknowle dgm ent of dee ds i n t he S ta te of I ll ino is .”

-6-¶ 12 This court has g ener ally excused cler ical err ors i n n o t ar i al jurats wher e the aff iant is otherwise corr ectly identified. Brennan v. Kolman
, 335 I ll. App. 3d 716, 722 (2002); Cintuc, Inc., v. Kozubowski
, 230 I ll. App. 3d 969, 974 (1992). As we have explained: “[S] ubstantial compliance with the Election Code i s ac ce p table when the invalidating char g e conce rns a technica l violation.” Madden v. Schumann
, 105 I ll. App. 3d at 903. “B ut sub s t anti al compliance is not operative to releas e a candida te from compliance with the provisions intended by the leg islature to g uara ntee a fair and honest elec tion.” Id

. at 903-04. We believe this case f

alls in the cate g ory of t he former. There is also authority for the proposition that the substantial compliance standard applies to all of the provisions of the Election Code. See Samuelson v. Cook County Officers Elec toral Board , 2012 I LApp (1st) 120581, ¶¶ 27, 29 (holding that the phrase “in substantially the following form” in section 7-10 “applies to all,
not some, of that section’s require ments” and that “substantial, rathe r than strict, compliance is the proper standard by which to evalua te deviations from cer tain mandatory provisions of the Elec tion Code”). ¶ 13 As we have previously stated “[w]e are mindful both that the provisions of the Elec tion Code are desig ned to protec t the integ rity of the elec toral proce ss a nd that acc ess to a place

on the ballot is a substantial rig ht not lightly to be denied.” Cunningham v. Schaeflein
, 2012 I L App (1st) 120529, ¶ 28. Our decision here comports with important principles enunciated by t h e I llinois Supreme Court, which “has instructed we should ‘trea d cautiously when construing statutory lang uag e which restric ted the people’ s rig ht to endorse and nominate the candidate of their choice.’ ” Id. ¶ 23 (quoting Lucas v. Lakin , 175 I ll. 2d 166, 176 (1997))

. Ou r s u preme court has rec og nized that limit ing a candidate’s right to run for public office

nece ssarily restric ts the voters’ rig ht to place their chosen candida te in office

. Tully v. Edgar
, 171 I ll. 2d 297, 307 (1996). The Tully court noted its prior opinions wher e it had “dete rmined that the rig ht to vote is implicated by leg islation that restric ts a candida te’s ef fort to g ain

acc ess t o t h e ballot” and “held that the right to vote i s implicated by leg islation that limit s the people’ s rig ht to nominate candidate s.” Id. ¶ 14 We f

urther note that our decision comports with the rec ent case of Cortez v . Municipal Officers Electora l B o ard
, 2013 I L App (1st) 130442, in which this court addre ssed the identical issue as that in the instant case

. There
, as here
, the candida tes used the shorter 3 notarization form in section 7-10 instead of the lon ger form require d for the statement of candida cy containing the phrase “who i s to me persona lly known.” The Cortez court conclude d that the leg islature did not intend that the appropr iate sanction for a mistake in the use of the w rong notarization form was to strike a candida te’s name from the ba llot. ¶ 15 As t h e Co r t ez co u rt explained: “[Section 7-10 of the Election C o d e] d o es n o t aff irmatively state that the sanction for a discrepa ncy in lang uag e is the striking of the entire candida cy

. Second, and most importantly
, the statute does state t h at t h e ‘S tatement of

We not e tha t as of the dat e of fi li ng our opi nio n, t h e C ort ez opi nio n was not fi nal and 3

con ta ine d the fol lowi ng not ic e “T HI S OPI NI ON HAS NOT BEEN RELEASED FOR PUBLI CAT I ON I

N T HE PERM ANENT LAW REPORT S. UNT I L RELEASED, I T I S SUBJ ECT T O REV I SI ON OR WITHDRAWAL. ”

-7-Candidacy ’ has to be only ‘in substantially the following form.’ ” Id

. ¶ 19 (quoting 10 I L CS

5/7-10 (West 2010)). The Cortez court cautioned that it did “not condone the actions of the [candidates in that case ].” Id. ¶ 22. The court further stated that it believed that “people who desire to be elec ted to public office should be able to follow the rec ommended direc tions of the elec tions statute as written and provided.” Id. Nonethele ss, the court conclude d that “the

reme dy of the B oard [was] drastic, and ‘ absent a clea rer statement by

the leg islature that it intended that remedy as a sanction’ for an appar ently inadver tent omission of l ang uag e on

a notarization,” the court declined to construe the Election Code as requ i ri n g t hat the candidates’ names be stricken from the ballot. Id

. We ag ree with the rea soning of the Cortez
court. ¶ 16 Objector s have additionally argued that the leg islature trea ts the cer tification proce ss for the petitio n sheet differ ently from that for the statement of candida cy beca use the

cer tification of t he petiti on sheet merely require s that the document was signed and sworn to b ef o re “a n office r authorized to administer oaths in I llinois ” wher eas the statement of candida cy must be cer

tified by “so m eo ne who is authorized to take acknow ledg ment of deeds.” Ba s ed on this lang uag e, Objectors arg ued and the El ector al Board ag ree d, that the I llinois Convey ance s Act (765 I L CS 5/20 (West 2010)) and the Uniform Recog nition of Acknowle dg ments A c t ( 7 65 I L CS 30/1 et seq. (West 2010)) expressly applied to Candidates’ statement of candida cy

. We disag ree . These a cts rela te to notarization of rea l proper ty and

are irrele vant. Moreove r, the Electora l Boa rd corr ectly rec og nized that the phrase descr ibing the qualifica tions of the individual who could cer tify the statement of candida cy as “someone who is authorized to take acknow ledg ment of deeds” could be satisfied by an individual who

was a notary public. I t is undi s p u t ed that eac h statement of candida cy was subscribed and sworn to by

a notar y public. ¶ 17 I n sum, the decision of the Electora l Boa rd that Candidates’ statements of candida cy did
not comply with the Election Code beca use the notarial jurat did not include lang uag e stating that the candidate who executed the statement of candida cy in the prese nce of the cer tify ing office r was “per sonally known” to the cer tify ing office r was incorre ct. We conclude that this minor deviation did not invalidate the underly ing oath wher e the notarial jurat was otherwise in confor mance with the s tatute (and there are no fac ts ind i ca ting that the i ndividuals who executed the statements of candida cy wer e, in fac t, not Candidates.) The statements of candida cy wer e in substantial compliance with the statute. We there fore aff irm the decision of the c ircuit court of

Cook County

reve rsing the B oard’ s decision.

¶ 18 Circuit court aff irmed; Municipal Offic ers Electora l Boa rd for the City of Calumet City

reve rsed.

-8-