The opinion
SIXTH DIVISION
March 16, 2007
No. 1-07-0499
VIRGINIA M. HARMON and DANA P. BAX, ) Appeal from the
) Circuit Court of
Petitioners-Appellees, ) Cook County
)
v. )
)
THE TOWN OF CICERO MUNICIPAL OFFICERS )
ELECTORAL BOARD, ITS MEMBERS, CHAIRMAN )
LARRY DOMINICK, MARILYN COLPO, and in )
her individual capacity as Town Clerk, )
and JOSEPH VIRRUSO, FERNANDO MORAN, and )
DAVID ORR, COOK COUNTY CLERK, ) Honorable
) Mark J. Ballard,
Respondents-Appellants. ) Judge Presiding
JUSTICE McNULTY delivered the opinion of the court:
The Town of Cicero Municipal Officers Electoral Board struck
the nomination papers for Dana Bax and Virginia Harmon. Bax and
Harmon petitioned for judicial review of the Board's decision.
The trial court reversed the Board and the Board now appeals.
BACKGROUND
Bax and Harmon filed nomination petitions for election to
the office of trustee for the Town of Cicero, for an election to
take place on February 27, 2007. Each candidate included in her
petition more than 100 pages of signatures. Each page bore at
least 1 and no more than 10 purported signatures of voters, along
with the signature of the person who claimed to have circulated
that page of the petition. Bax claimed that 881 voters in Cicero
indicated their support for her candidacy by signing her
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petition. Harmon claimed that signatures of 887 voters supported
her nomination.
Fernando Moran objected to both petitions. For each
candidate's petition, he specified more than 400 signatures that
he challenged on various grounds. The parties stipulated that
the nomination petitions needed 555 signatures of voters to
qualify the candidate for the ballot. Pursuant to the Board's
rules, employees of the county clerk of Cook County, with notice
to both the candidates and the objector, compared the petitions
to voter registration records. The employees sustained
objections to 197 signatures on Bax's petition and 256 signatures
on Harmon's petition. The candidates have not challenged the
rulings excluding those signatures.
The Board held a hearing at which the parties presented
testimony, affidavits and exhibits. Moran offered into evidence
affidavits of several persons who signed the candidates'
petitions. All of the affiants identified their signatures on
pages Jose Alanis swore he circulated. All of the affiants saw
a photograph of Alanis, and all swore that a person other than
Alanis obtained their signatures on the petitions.
Bax and Harmon objected to the affidavits, claiming that the
unavailability of the affiants for cross-examination deprived
them of due process. The Board noted that its rules expressly
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permitted the Board to consider affidavits. The Board reminded
the candidates that the Board had the power to subpoena any
witnesses the parties sought to examine, including the affiants.
The candidates did not seek to subpoena the affiants.
Instead, Alanis obtained signatures on affidavits from
several other persons listed on petitions he swore he circulated.
In the affidavits those persons swore that Alanis had, in fact,
requested signatures from them on the nominating petitions.
On January 24, 2007, Alanis testified before the Board that
he personally circulated all of the petition pages that he
signed, and he personally witnessed each signature. Counsel for
Moran asked Alanis about his preparation for testifying. Alanis
swore that Bax told Alanis to come into court to testify, but she
said nothing more to him. Bax said nothing about what he should
say to the Board.
A police officer identified a compact disc as a copy of a
recording made by a surveillance camera in the corridor outside
the courtroom on January 24, 2007, before Alanis started
testifying. The recording shows Alanis apparently speaking with
Bax as they pass a police officer in the hall.
Officer Cheryl Walsh, who stood in the corridor outside the
courtroom before Alanis testified on January 24, 2007, swore that
she overheard part of the conversation between Alanis and Bax:
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"Ms. Bax said to him that they are going to talk to you
about the signatures. Alanis replied what if I don't
remember. Ms. Bax replied just say yes to everything."
The Board found that neither Bax nor Harmon had presented
sufficient valid signatures to permit nomination for the office
of trustee. For each candidate the Board found several
independent bases for holding the nominating petitions
insufficient. First the Board noted that the 197 invalid
signatures on the Bax petition amounted to 22% of all her
signatures, and the 256 invalid signatures on Harmon's petition
came to 29% of her total. The Board found that the large
percentage of invalid signatures showed that "those nominating
petitions, in the whole, are tainted by a pattern of fraud, false
swearing and a total disregard for the mandatory requirements of
the Election Code." On that basis the Board struck all pages of
signatures filed for both candidates. Without any signatures,
neither candidate qualified for nomination.
As its second basis for rejecting the nominating papers, the
Board noted that the court clerk rejected 101 signatures on Bax's
petition as invalid because "the purported signatory did not sign
in his or her own proper person." From Harmon's petition the
court clerk rejected 113 signatures on the same basis. The Board
members inspected the exhibits and specifically found that some
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of the pages of the petition appeared to have a number of
different signatures written by the same hand. The handwriting
looked like the signature in the voter registration records for
one of the persons named and not at all like the signatures of
the other persons listed. Thus, the evidence strongly suggested
that the circulator permitted a single individual to sign
multiple lines of the petition with different names. The Board
found that the disparity between the signatures on the petitions
and the signatures in voter registration records showed that the
circulator for each such page of the petition acted at least in
"culpable ignorance of the truth *** [with] conscious awareness
of the falsity of those signatures." On the basis of that
finding, the Board struck all pages of the petition on which any
such signature appeared. The 101 invalid signatures on the Bax
petition appeared on 54 different pages; without those pages Bax
had fewer than the requisite 555 signatures. The 113 invalid
signatures on the Harmon petition appeared on 61 different pages;
without those pages Harmon had fewer than 400 signatures. Thus,
neither candidate had sufficient signatures to qualify the
candidates for nomination.
The third reason for finding that Harmon did not qualify for
the ballot also derived from a decision to strike specific pages
due to a pattern of fraud and false swearing. The Board found
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that the county clerk sustained objections to at least half of
the signatures on 25 pages of Harmon's petition. Those pages
showed a pattern of fraud and false swearing that, according to
the Board, warranted striking all signatures on these pages.
With the 256 signatures the county clerk found invalid,
invalidation of the remaining signatures on those 25 pages left
Harmon with fewer than the requisite 555 signatures.
The county clerk sustained objections to at least half of
the signatures on 10 pages of Bax's petition. The Board found
that the pattern of fraud warranted striking all signatures on
those 10 pages. If the Board struck nothing other than the 197
signatures the county clerk found invalid, and the remaining
signatures on the 10 pages with at least half of the signatures
invalid, Bax would have had enough signatures to qualify. The
third reason for rejecting Harmon's petition does not directly
apply to Bax's petition.
The remaining reasons for rejecting the petitions related to
Alanis and the credibility of his attestations on numerous pages
of both petitions that he personally witnessed the signatures of
each of the persons who signed those pages. The Board relied
primarily on two independent reasons for finding Alanis not
credible and therefore rejecting all signatures on all pages he
signed as circulator. The Board detailed at length the testimony
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in which Alanis denied that he spoke with Bax before testifying
and the contrary evidence from the surveillance camera and the
testimony of Officer Walsh. Affidavits Moran obtained from
several persons who signed petitions Alanis claimed he circulated
provided the second independent reason for rejecting all of the
signatures on the pages Alanis signed. Alanis named himself as
circulator on 20 pages of Bax's petition and 13 pages of Harmon's
petition. Without the signatures on those pages and the pages on
which the county clerk sustained objections to at least half of
the signatures, Bax did not have the 555 signatures required for
the ballot. Harmon's petition fell further short of the
requisite number of signatures.
Bax and Harmon petitioned for judicial review of the Board's
decision. The court focused on the admission into evidence of
the affidavits Moran presented. According to the court, the
Board denied the candidates due process of law when it followed
its rules permitting the use of affidavits without requiring
Moran to bring the affiants to the hearing for cross-examination.
The court separately found, without explanation, that the
evidence apart from the affidavits did not sufficiently support
the Board's findings. The court reversed the decision of the
Board on both the Bax petition and the Harmon petition. The
Board now appeals.
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ANALYSIS
We review the Board's findings of fact deferentially, and we
will reject those findings only if they conflict with the
manifest weight of the evidence. King v. Justice Party, 284 Ill.
App. 3d 886, 888 (1996). Credibility determinations particularly
fall within the Board's purview. King, 284 Ill. App. 3d at 888.
The Board's interpretations of statutes do not bind the courts.
King, 284 Ill. App. 3d at 888. We look to administrative review
cases for guidance on procedures for review under the Election
Code (10 ILCS 5/10-10.1 (West 2004)). See King, 284 Ill. App. 3d
at 888.
Although we review the Board's decision and not the trial
court's decision (Bergman v. Vachata, 347 Ill. App. 3d 339, 344
(2004)), we comment on the trial court's decision here to provide
guidance in future cases. The trial court here adopted the
standard of review stated in Samour, Inc. v. Board of Election
Commissioners, No. 101902 (January 19, 2007). Our supreme court
in Samour deferred to the trial court's factual findings and not
a board's findings expressly because "[t]here [was] no decision
of an administrative agency at issue" in that case. Samour, slip
op. at 9. In this case, unlike Samour, the Board rendered a
decision following evidentiary hearings, and the trial court
heard no new evidence. Therefore, we defer to the findings of
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the Board and not the trial court.
The trial court here found Moran's affidavits inadmissible.
When the court rejects an evidentiary ruling or a factual finding
of the Board, the court must separately consider the issue of
whether the error requires reversal. See Johnson v. Human Rights
Comm'n, 318 Ill. App. 3d 582, 587 (2000). If the factual
findings independent of the error provide a sufficient basis for
the Board's decision, we will affirm the decision despite the
error. Johnson, 318 Ill. App. 3d at 587.
Here the trial court found error only in the admission into
evidence of several affidavits. The Board explained several
separate bases for holding the nominating petitions insufficient.
At least three of the bases for the Board's rulings expressly
relied not at all on any of Moran's affidavits. The trial court
failed to identify any defect in the Board's findings and
reasoning in support of these other bases for its holding.
Next we disagree with the trial court's rejection of all of
Moran's affidavits. Board rules here, as in Bergman, 347 Ill.
App. 3d at 348, expressly permit the Board to rely on affidavits.
The subpoena power here, as in Dombrowski v. City of Chicago, 363
Ill. App. 3d 420, 427 (2005), sufficiently protected the
candidates' rights to due process. The candidates failed to
exercise the right to subpoena affiants, even after the Board
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reminded them of that right. The candidates "cannot be deprived
of a right they fail to exercise." Dombrowski, 363 Ill. App. 3d
at 427.
The Board provided us with several distinct bases for its
ruling, and the Board clarified which factual findings led to
each basis for its ruling. We may affirm the Board's decision if
the facts in the record suffice to support any one basis for the
Board's decision. Younge v. Board of Education of the City of
Chicago, 338 Ill. App. 3d 522, 530 (2003).
On 25 pages of Harmon's petition and on 10 pages of Bax's
petition, the court clerk found 50% or more of the signatures
invalid. The evidence in the record sufficiently supports the
Board's finding that these pages evidence a pattern of false
swearing that warranted the decision to strike those pages
altogether. See Fortas v. Dixon, 122 Ill. App. 3d 697, 700
(1984); Canter v. Cook County Officers Electoral Board, 170 Ill.
App. 3d 364, 368 (1988).
The record also supports the decision to strike all pages
Alanis signed as circulator. The Board based the decision to
strike the pages on the impeachment of his testimony in court.
In particular Alanis testified that Bax said nothing to him to
guide his testimony. Officer Walsh testified that she overheard
Bax giving Alanis specific directions concerning his testimony,
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and a surveillance camera recording, in the Board's view,
corroborated Officer Walsh's testimony. The impeachment
concerned Alanis's preparation for testifying. The preparation
of a witness for testimony qualifies as a proper subject of
cross-examination. See West Chicago St. R.R. Co. v. Byrne, 85
Ill. App. 488, 493 (1899); People v. Scarpelli, 82 Ill. App. 3d
689, 696 (1980). The impeachment here significantly undercut the
credibility of any other statements Alanis made under oath. The
Board relies on the honesty of the circulator who swears that he
witnessed each signature whenever the Board counts the signatures
toward the number required for nomination. If the evidence
supports a finding that the circulator lied under oath, it
further supports a decision to refuse to count any signatures
that circulator purportedly witnessed. See Fortas v. Dixon, 122
Ill. App. 3d at 701; Canter, 170 Ill. App. 3d at 369.
The affidavits of Moran's witnesses further bolster the
Board's finding that Alanis lacked credibility and that all pages
Alanis signed as circulator should not count toward each
candidate's signature requirements. However, we find sufficient
grounds for the Board's decision here apart from the affidavits
at issue. The Board struck all pages on which the county clerk
sustained objections to at least half of the signatures, and the
Board correctly struck all pages Alanis signed as circulator.
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Without those pages, and without the other signatures to which
the county clerk sustained objections, neither Bax nor Harmon had
sufficient signatures to qualify for nomination. Accordingly, we
reverse the judgment of the trial court and we affirm the Board's
decision.
Reversed.
JOSEPH GORDON and QUINN, JJ., concur.
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