Bocanegra v. City of Chicago Electoral Board

ILLINOIS OFFICIAL REPORTS

Appellate Court

Bocanegra v. City of Chicago Electoral Board, 2011 IL App (1st) 110424

Appellate Court SERGIO BOCANEGRA, Petitioner-Appellant, v. THE CITY OF

Caption CHICAGO ELECTORAL BOARD, BOARD OF ELECTION

COMMISSIONERS OF THE CITY OF CHICAGO as the duly

constituted CITY OF CHICAGO ELECTORAL BOARD, and members

LANGDON D. NEAL, RICHARD A. COWEN, MARISEL A.

HERNANDEZ, candidates JESUS “JESSE” INIGUEZ, Respondents-

Appellees, and JOSE “CHAVELO” RODRIGUEZ, Respondent.

District & No. First District, First Division

Docket No. 1-11-0424

Filed August 1, 2011

Held The respondent board of election commissioners properly overruled

(Note: This syllabus petitioner’s objections to the inclusion of respondent’s name on the

constitutes no part of ballot for alderman, notwithstanding petitioner’s contention that

the opinion of the court respondent failed to file a statement of financial interests as required by

but has been prepared the city’s campaign financing ordinance, since the city could not alter the

by the Reporter of statutory requirements for an elective municipal office by merely passing

Decisions for the an ordinance, but, rather, the change had to be approved by the passage

convenience of the of a referendum as required by the Illinois Constitution, and even if the

reader.)

ordinance was a valid exercise of the city’s home rule power, its

enforcement had to be directed to the Ethics Board, not the Electoral

Board.

Decision Under Appeal from the Circuit Court of Cook County, No. 2011-COEL-31; the

Review Hon. Susan Fox-Gillis, Judge, presiding.

Judgment Affirmed.

Counsel on Andrew Finko, of Chicago, for appellants.

Appeal

James M. Scanlon & Associates, of Chicago (James M. Scanlon and

Joan T. Agnew, of counsel), for appellees.

Panel JUSTICE HOFFMAN delivered the judgment of the court, with

opinion.

Presiding Justice Hall and Justice Rochford concurred in the

judgment and opinion.

OPINION

¶1 The petitioner, Sergio Bocanegra, filed written objections to the candidacy of respondent,

Jesus “Jesse” Iniguez (candidate Iniguez), who sought election as alderman for the Twelfth

Ward of the City of Chicago in the Municipal General Election to be held on February 22,

2011. After an evidentiary hearing, the Board of Election Commissioners of the City of

Chicago (the Board) overruled the petitioner’s objections and determined that candidate

Iniguez was entitled to have his name included on the ballot as an aldermanic candidate. The

petitioner sought judicial review in the circuit court of Cook County, which confirmed the

decision of the Board. The petitioner now appeals. For the reasons that follow, we affirm the

decision of the circuit court.

¶2 The relevant facts are undisputed.1 In April 2010, candidate Iniguez created a campaign

committee to promote his candidacy for alderman of the Twelfth Ward, and the committee

filed a statement of organization on April 22, 2010. Candidate Iniguez filed a statement of

financial interests with the City of Chicago Board of Ethics (Ethics Board) on November 12,

2010, and filed his nomination papers, along with his statement of candidacy, three days

later.

¶3 The petitioner thereafter challenged candidate Iniguez’s eligibility for aldermanic office

by filing an objection before the Board. In his objection, which was docketed as 11-EB-ALD-

1

Though a portion of the administrative proceedings is not included in the record on appeal,

a copy of the Board’s decision is attached as an exhibit to the petition for judicial review, and neither

party disputes the accuracy of that exhibit. Because the Board’s decision was based exclusively on

matters of law and did not involve the determination of any factual questions, the absence of a

complete administrative record does not hamper our ability to consider and resolve the issues raised

on appeal.

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199, the petitioner asserted that candidate Iniguez’s oath, included in his statement of

candidacy, was false because he had not filed a statement of financial interests with the

Ethics Board within five days after qualifying as a candidate, in accordance with section 2-

164-050 of the City of Chicago Campaign Financing Ordinance (Chicago Municipal Code

§ 2-164-050 (amended Dec. 5, 1990)) (Campaign Financing Ordinance). The petitioner

further asserted that the failure to timely file a statement of financial interests with the Ethics

Board rendered candidate Iniguez ineligible to take the oath of office and, therefore,

precluded him from being included on the ballot for the February 2011 election.

¶4 Candidate Iniguez moved to dismiss the objection, and the petitioner filed a response.

The hearing examiner appointed by the Board ruled in favor of candidate Iniguez and

dismissed the petitioner’s objection. The hearing examiner’s findings and recommendations

were adopted by the Board, which overruled the petitioner’s objections and found that

candidate Iniguez’s nomination papers were valid. The Board’s decision was based on the

fact that the City could not alter the statutory requirements for elective municipal office

merely by passing an ordinance, without adoption of a referendum. In addition, the Board

determined that it did not have authority to address a violation of the Campaign Financing

Ordinance. The Board noted that the ordinance specifically provided that the Ethics Board

has the authority to initiate, receive, investigate, and act upon complaints of violations of its

provisions. Chicago Municipal Code § 2-164-070 (amended Dec. 5, 1990). Accordingly, the

Board concluded that it could not enforce the ordinance by removing the name of a candidate

from the ballot.

¶5 Simultaneous with these proceedings, the petitioner filed a second objection challenging

the nomination papers of Jose “Chavelo” Rodriguez, another candidate who also sought

election as alderman for the Twelfth Ward. This second objection was docketed as 11-EB-

ALD-197 and was premised on the same legal argument regarding the untimely filing of a

statement of financial interests mandated by the Campaign Financing Ordinance. The hearing

examiner’s dismissal of this objection also was adopted by the Board.

¶6 The petitioner filed a single petition for judicial review in the circuit court, challenging

the Board’s decision in both cases. The circuit court confirmed the Board’s decision finding

that candidate Iniguez’s nomination papers were valid, and the petitioner has appealed.2

¶7 Initially, we note that this appeal presents an issue of election law that is subject to

review under the public-interest exception to the mootness doctrine. A case on appeal is

moot where the issues raised below no longer exist because events subsequent to the filing

of the appeal make it impossible for the reviewing court to grant the complaining party

effective relief. Hossfeld v. Illinois State Board of Elections, 238 Ill. 2d 418, 423-24, 939

N.E.2d 368 (2010); Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228

Ill. 2d 200, 207-08, 886 N.E.2d 1011 (2008). Yet, the public-interest exception permits a

court to reach the merits of a case which would otherwise be moot if the question presented

is of a public nature, an authoritative resolution of the question is desirable for the purpose

2

Candidate Jose “Chavelo” Rodriguez was found to be in default for failure to appear; he

has not challenged that finding and is not a party to this appeal.

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of guiding public officers, and the question is likely to recur. Bonaguro, 158 Ill. 2d at 395.

All three of these factors are present here.

¶8 This appeal presents a question of election law which, inherently, is a matter of public

concern. Lucas v. Lakin, 175 Ill. 2d 166, 170, 676 N.E.2d 637 (1997). In addition, disputes

over ballot access based on the failure to comply with the Campaign Financing Ordinance

are likely to recur in the future. Finally, resolution of such a dispute will aid election officials

and circuit courts in deciding such disputes promptly. Thus, although the February 2011

election has been held and the aldermanic vacancy at issue in this case has been filled, this

appeal falls within the public-interest exception to the mootness doctrine.

¶9 The fundamental issue presented by this appeal is whether the failure to timely file a

statement of financial interests, as required by section 2-164-050 of the Campaign Financing

Ordinance, which was not passed by referendum, precludes a candidate from having his

name included on the ballot for an aldermanic election. We note that neither party has cited

any Illinois case deciding this precise question. Because resolution of this issue presents a

pure question of law, requiring the construction of statutory provisions, our review is de

novo. Hossfeld, 238 Ill. 2d at 423. When interpreting a statute, the primary goal is to

ascertain and give effect to the intent of the legislature, and the most reliable indication of

the legislature’s intent is the plain language of the statute. Metzger v. DaRosa, 209 Ill. 2d 30,

34-35, 805 N.E.2d 1165 (2004).

¶ 10 The Campaign Financing Ordinance provides, in relevant part, as follows:

“Every person who qualifies as a candidate shall thereby become a ‘reporting

individual’ for purposes of Chapter 2-156 of this code, and shall file a statement of

financial interests, in the form prescribed by the Board of Ethics pursuant to said

chapter, within five days after qualifying as a candidate.” Chicago Municipal Code

§ 2-164-050 (amended Dec. 5, 1990).

The ordinance further provides that “[n]o elected official shall be allowed to take the oath

of office, continue in office or receive compensation from the city unless he has filed the

[required] statement of financial interest.” Chicago Municipal Code § 2-164-060 (amended

Dec. 5, 1990). In addition, the ordinance states that the Ethics Board has the authority to

initiate, receive, investigate, and act upon complaints of violations of its provisions. Chicago

Municipal Code § 2-164-070 (amended Dec. 5, 1990).

¶ 11 The petitioner argues that, because candidate Iniguez failed to timely file a statement of

financial interests within five days after qualifying as a candidate, he could not take the oath

of office if elected and, therefore, was ineligible for elective municipal office. The petitioner

further argues that, because section 10-5 of the Illinois Election Code (10 ILCS 5/10-5 (West

2010)) requires each candidate for office to swear or affirm under oath that he or she is

legally qualified to hold such office, candidate Iniguez’s statement of candidacy, asserting

that he was qualified for the office of alderman, was false and that this circumstance

prevented him from having his name included on the ballot in the election for that office. In

response, the Board argues that the disclosure requirements set forth in the ordinance are not

included in either the Election Code (10 ILCS 5/1-1 et seq. (West 2010)) or the Illinois

Municipal Code (65 ILCS 5/1-1-1 et seq. (West 2010)) and that the provisions of the

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ordinance do not constitute binding changes to the eligibility requirements for elective

municipal office.

¶ 12 In support of his arguments, the petitioner relies primarily on the supreme court’s

decision in Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200,

886 N.E.2d 1011 (2008). In Cinkus, the nomination papers of a candidate for village trustee

were challenged on the basis that he was indebted to the village. The objection was premised

on section 3.1-10-5(b) of the Illinois Municipal Code, which provides that a person is “not

eligible for an elective municipal office” if he is in arrears in the payment of an indebtedness

due the municipality (65 ILCS 5/3.1-10-5(b) (West 2006)). Cinkus, 228 Ill. 2d at 204-05. The

supreme court held that when this statutory provision is read together with section 10-5 of

the Election Code, requiring a candidate to swear that he or she is qualified for the office

specified, the disqualifications set forth in section 3.1-10-5(b) render a candidate ineligible

to run for office if the disqualifying circumstance is not remedied by the time the candidate

files his or her nomination papers. Cinkus, 228 Ill. 2d at 219-20. The supreme court’s

decision was predicated on the fact that the required statement of candidacy and

accompanying oath are phrased in the present tense, thereby mandating that, when a

candidate submits his or her nomination papers to run for office, the candidate swears that

he or she currently is qualified for the office sought. Cinkus, 228 Ill. 2d at 219. The court

concluded that a candidate is ineligible to run for office unless the disqualifying

circumstances have been cured and the statutory provisions are satisfied prior to the filing

of his or her nomination papers. Cinkus, 228 Ill. 2d at 219-20.

¶ 13 The petitioner claims that the holding in Cinkus controls in this case and that candidate

Iniguez’s failure to timely file his statement of financial interests prevented him from running

for the office of alderman. We find, however, that Cinkus was predicated on the

interpretation and application of two state statutes, rather than a municipal ordinance. As a

consequence, it is factually distinguishable and does not govern the instant case.

¶ 14 Despite this critical distinction, the petitioner contends that Cinkus is applicable here

because the Revised Cities and Villages Act of 1941 (the Act) (65 ILCS 20/21-0.01 et seq.

(West 2010)) permits the Chicago city council to enact eligibility requirements for elective

municipal office in the City of Chicago. In particular, the petitioner cites to section 21-28,

which states that nomination petitions for aldermanic elections must conform to “the

provisions of the election and ballot laws then in force in the city of Chicago.” 65 ILCS

20/21-28 (West 2010). He further cites to section 21-35, stating that “[a]ll laws in force in

the city of Chicago governing elections for municipal offices or applicable thereto and not

inconsistent with the provisions of this article, shall apply to and govern all elections held

under the terms of this article.” 65 ILCS 20/21-35 (West 2010). Finally, the petitioner relies

on section 21-24, which provides that “[t]he name of no person shall be printed upon the

official ballot as a candidate for alderman, unless the terms of this article shall have been

complied with.” 65 ILCS 20/21-24 (West 2010).

¶ 15 According to the petitioner, the references in the Act to the laws “in force in the city of

Chicago” include municipal ordinances and, therefore, authorize municipalities to enact

additional eligibility requirements for election to an office created by state statute. We reject

the petitioner’s contention because it disregards the fact that municipalities organized under

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the Illinois Municipal Code have only those powers that are delegated or necessarily implied

by statute. See People ex rel. Friend v. City of Chicago, 261 Ill. 16, 19, 103 N.E. 609 (1913)

(also recognizing that “statutes granting powers to municipal corporations are strictly

construed, and any fair and reasonable doubt as to the existence of the power must be

resolved against the municipality”); see also McMahon v. City of Chicago, 339 Ill. App. 3d

41, 45, 789 N.E.2d 347 (2003) (acknowledging that municipalities are limited to only those

powers that are given to them by constitution and statute). Nothing in the plain language of

the Act specifically provides or necessarily implies that a municipality has authority to alter

the requirements for elective office by passage of an ordinance.

¶ 16 In addition, the petitioner’s argument ignores the fundamental difference between a

municipal ordinance, that has not been passed by referendum, and a state statute. Illinois

courts have held that the Election Code and Article 3.1 of the Illinois Municipal Code are the

laws that govern elections in the City of Chicago, except where they are inconsistent with the

Act. See United Citizens of Chicago & Illinois v. Coalition to Let the People Decide in 1989,

125 Ill. 2d 332, 339-41, 531 N.E.2d 802 (1988); Robinson v. Jones, 186 Ill. App. 3d 82, 86-

88, 542 N.E.2d 127 (1989).

¶ 17 In Thies v. State Board of Elections, 124 Ill. 2d 317, 529 N.E.2d 565 (1988), the supreme

court held that, “where the Constitution undertakes to prescribe qualifications for office, its

declaration is conclusive of the whole matter,” and “the legislature is without authority to

change or add to the qualifications unless the Constitution gives it the power.” Thies, 124 Ill.

2d at 325 (citing Cusack v. Howlett, 44 Ill. 2d 233, 242-43, 254 N.E.2d 506 (1969), and

People ex rel. Hoyne v. McCormick, 261 Ill. 413, 423, 103 N.E. 1053 (1913)). We find that

the same result necessarily holds true with regard to municipal elective offices created by the

Illinois legislature. Where an elective office is created by state statute, it is wholly within the

power of the legislature to prescribe the qualifications for that office, and a municipality

lacks authority to alter or add to those qualifications, unless such changes are accomplished

as permitted by statute. Consequently, a municipality may amend the eligibility requirements

for its elected officers only through passage of a municipal ordinance that has been approved

via referendum in accordance with home rule power. See Ill. Const. 1970, art. VII, § 6(f)

(providing that “[a] home rule municipality shall have the power to provide its officers, their

manner of selection and terms of office only as approved by referendum or as otherwise

authorized by law”). In the absence of such an exercise of home rule power, a municipality

has no authority to create ballot-access barriers for candidates seeking elective municipal

office.

¶ 18 This conclusion is consistent with the view expressed in prior opinions of the Attorney

General. An Attorney General opinion issued in 2000 states that

“when the subject matter [of an exercise of home rule power] concerns changing ***

the manner of selection or terms of office of municipal officers[,] a statutory

provision may be superseded only by referendum.

*** [T]he statutory qualifications for office established by [the Illinois Municipal

Code] may be altered by a referendum adopted in a home rule municipality pursuant

to article VII, section 6 of the Constitution.” 2000 Ill. Att’y Gen. Op. No. 00-003, at

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4-5.

In addition, a 2005 Attorney General opinion states, in relevant part, as follows:

“[P]ursuant to article VII, section 6, of the Illinois Constitution of 1970, a home rule

municipality is authorized, subject to referendum approval, to adopt procedures for

selecting municipal officers that differ from those set forth in either the Election

Code or the [Illinois] Municipal Code.

***

*** [H]ome rule municipalities may change their manner of selecting officers

only: (1) as provided by statute; or (2) as approved by a referendum.” 2005 Ill. Att’y

Gen. Op. No. 05-007, at 1-3 (citing Leck v. Michaelson, 111 Ill. 2d 523, 528, 491

N.E.2d 414 (1986), and Clarke v. Village of Arlington Heights, 57 Ill. 2d 50, 54, 309

N.E.2d 576 (1974)).

¶ 19 Although Attorney General opinions are not binding on the courts, a well-reasoned

opinion of the Attorney General is entitled to considerable weight, especially in a matter of

first impression in Illinois. Burris v. White, 232 Ill. 2d 1, 8, 901 N.E.2d 895 (2009);

Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 399, 634 N.E.2d 712 (1994).

We find that the reasoning of these Attorney General opinions, which are grounded on the

Illinois Constitution and supreme court precedent, accurately characterizes Illinois law and

we can perceive no reason to depart from the views expressed therein.

¶ 20 Though a municipality may have the ability to impose obligations regarding the

disclosure of campaign contributions and other financial interests, that is not to say that a

municipality has the authority to alter the requirements for its elected officials merely by

passing an ordinance. An ordinance that has not been passed by referendum, pursuant to

home rule powers as set forth in article VII, section 6(f), of the Illinois Constitution, is not

the functional equivalent of “a law in force” for purposes of establishing procedures and

prerequisites for election to municipal office. As a result, where such an ordinance has not

been passed by referendum, the failure to comply with its terms cannot be enforced by

removal of a candidate’s name from the ballot.

¶ 21 Here, the Campaign Financing Ordinance, which purports to change the qualifications

for those candidates seeking elective municipal office in the City of Chicago, was not

approved by passage of a referendum as required by the Illinois Constitution. See Ill. Const.

1970, art. VII, § 6(f). Because the ordinance was not passed pursuant to a valid exercise of

home rule power, its provisions do not constitute binding changes to the eligibility

requirements for its officers.

¶ 22 Moreover, we agree with the Board’s conclusion that, even if the ordinance constituted

a valid exercise of the City’s home-rule power and altered the eligibility requirements for

municipal elective office, its enforcement must be directed to the Ethics Board. See Chicago

Municipal Code § 2-164-070 (amended Dec. 5, 1990) (stating that the Ethics Board has the

authority to initiate, receive, investigate, and act upon complaints of violations of its

provisions). The authority of an electoral board is strictly limited to that prescribed by the

legislature. Kozel v. State Board of Elections, 126 Ill. 2d 58, 68, 533 N.E.2d 796 (1988).

There is nothing in the Campaign Financing Ordinance indicating that the Board is

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authorized to address or enforce the failure to comply with its terms. Consequently, contrary

to the petitioner’s argument, the Board lacked the authority to remove the name of a

candidate from the ballot as a means of enforcing the ordinance.

¶ 23 For the foregoing reasons, the judgment of the circuit court of Cook County, confirming

the decision of the Board of Election Commissioners of the City of Chicago, is affirmed.

¶ 24 Affirmed.

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