1

 2015 IL App (5th) 150028

 NO. 5-15-0028

 IN THE

 APPELLATE COURT OF ILLINOIS

 FIFTH DISTRICT

________________________________________________________________________

EMEKA JACKSON-HICKS, ) Appeal from the 

) Circuit Court of 

 Petitioner-Appellant , ) St. Clair County.

)

v. ) No. 14-MR-496

) 

THE EAST ST. 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, ) Honorable

) Heinz M. Rudolf,

Respondents-Appellees. ) Judge, presiding.

________________________________________________________________________

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 

NOTICE

Decision filed 02/17/15. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.
2

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 Parks' name would remain on the ballot for the February 24, 

2015, consolidated primary election.
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¶ 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, 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 for the City of Granite 

City, 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 
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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).

¶ 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. 
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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 of the City of McHenry, 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. 
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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 Officers Electoral Board, 356 Ill. App. 3d 961, 966 (2005). When enacting 
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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 
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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 
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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 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 "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 
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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 for the Village 

of Oak Lawn, 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 of the Village of Lakemoor, 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 
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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." 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 
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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)), 
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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 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. 
2015 IL App (5th) 150028

NO. 5-15-0028

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

EMEKA JACKSON-HICKS, ) Appeal from the 

) Circuit Court of 

 Petitioner-Appellant, ) St. Clair County.

)

v. ) No. 14-MR-496

) 

THE EAST ST. 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, ) Honorable

) Heinz M. Rudolf,

Respondents-Appellees. ) Judge, presiding.

______________________________________________________________________________

Opinion Filed: February 17, 2015

______________________________________________________________________________

Justices: Honorable S. Gene Schwarm, J.

Honorable Thomas M. Welch, J., and 

Honorable James R. Moore, J.,

Concur

______________________________________________________________________________

Attorney Eric W. Evans, Evans Blasi, 1512 Johnson Road, Granite City, IL 62040

for

Appellant

______________________________________________________________________________

Attorneys Garrett P. Hoerner, Becker, Paulson, Hoerner & Thompson, P.C., 5111 

for West Main Street, Belleville, IL 62226 (attorney for Alvin L. Parks, Jr.);

Appellees Richard Sturgeon, Attorney at Law, 23 South First Street, Belleville, IL 

62220 (attorney for Edna R. Allen, East St. Louis Board of Election 

Commissioners, Elmer D. Jones, Joseph McCaskill)

______________________________________________________________________________