Schmidt v. Illinois State Board of Elections

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Appellate Court Date: 2017.02.10

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Schmidt v. Illinois State Board of Elections, 2016 IL App (4th) 160189

Appellate Court JULIE A. SCHMIDT, Plaintiff-Appellant, v. THE ILLINOIS STATE

Caption BOARD OF ELECTIONS; STATE OFFICERS ELECTORAL

BOARD; CHARLES W. SCHOLZ, ERNEST L. GOWEN,

WILLIAM J. CADIGAN, ANDREW K. CARRUTHERS, BETTY J.

COFFRIN, JOHN R. KEITH, WILLIAM M. McGUFFAGE, and

CASANDRA B. WATSON, All in Their Official Capacities as

Members of the Duly Constituted State Officers Electoral Board;

JOHN A. CUNNINGHAM, Not Individually but in His Capacity as

Kane County Clerk; DAVID ORR, Not Individually but in His

Capacity as Cook County Clerk; and ANNA MOELLER,

Defendants-Appellees.

District & No. Fourth District

Docket No. 4-16-0189

Filed December 8, 2016

Decision Under Appeal from the Circuit Court of Sangamon County, No. 16-MR-22;

Review the Hon. John P. Schmidt, Judge, presiding.

Judgment Affirmed.

Counsel on Jeffrey A. Meyer (argued) and Peter Thomas Smith, of Klein,

Appeal Stoddard, Buck & Lewis, LLC, of Sycamore, for appellant.

Michael J. Kasper (argued), of Fletcher, Topol, O’Brien & Kasper,

P.C., of Chicago, and James M. Morphew, of Sorling Northrup, of

Springfield, for appellee Anna Moeller.

Lisa Madigan, Attorney General, of Springfield (Richard S. Huszagh,

Assistant Attorney General, of counsel), for other appellees.

Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.

Justices Turner and Holder White concurred in the judgment and

opinion.

OPINION

¶1 In December 2015, plaintiff, Julie A. Schmidt, filed a petition with the Illinois State Board

of Elections, sitting as the State Officers Electoral Board (Board), objecting to the nominating

papers of defendant, Anna Moeller, a Democratic candidate for the office of Representative in

the Illinois General Assembly for the 43rd Representative District. In response, Moeller filed a

motion for summary judgment, which the Board granted. On judicial review, the circuit court

affirmed the Board’s decision. Schmidt appeals, arguing Moeller’s nominating papers were

invalid because, during the same election cycle, she signed both her own statement of

candidacy as a Democratic Party candidate and the nominating petition of a Republican Party

candidate in violation of section 8-8 of the Election Code (10 ILCS 5/8-8 (West 2014)). We

affirm.

¶2 I. BACKGROUND

¶3 The undisputed facts demonstrate that, on September 5, 2015, Moeller signed petition

sheets in support of her nomination as the Democratic Party candidate for the office of

Representative for the 43rd District. On September 26, 2015, she signed a petition sheet for

Sandy Wegman, a Republican Party candidate who sought nomination for the office of Kane

County Recorder. On November 23, 2015, Moeller filed her own nomination papers with the

Board to place her name on the March 15, 2016, primary election ballot as a candidate for the

office of Representative for the 43rd District. Her papers included a signed statement of

candidacy, notarized on November 19, 2015, in which she asserted that she was “a qualified

primary voter of the Democratic Party.”

¶4 On December 7, 2015, Schmidt filed a verified objector’s petition with the Board,

objecting to Moeller’s nomination papers. She cited section 8-8 of the Election Code (10 ILCS

5/8-8 (West 2014)), which provides that “[a] ‘qualified primary elector’ of a party may not sign

petitions for or be a candidate in the primary of more than one party.” Schmidt argued Moeller

violated that section by signing the nominating petition of a Republican Party candidate and

running for office as a Democratic Party candidate. She asked that the Board declare Moeller’s

nominating papers and petition defective or invalid and bar Moeller’s name from being printed

on the March 15, 2016, primary election ballot.

¶5 On December 16, 2015, Moeller filed a motion for summary judgment. She agreed with

Schmidt’s assertion that “a person may not sign the petitions of more than one political party in

any particular primary election.” However, Moeller cited the First District’s decision in

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Watkins v. Burke, 122 Ill. App. 3d 499, 461 N.E.2d 625 (1984), for the proposition that “when

a person signs for more than one political party at the same election, the first signature in time

is valid and all subsequent signatures for a different political party are invalid.” Moeller

alleged she signed her own nominating petition and those of other Democratic Party candidates

prior to signing a petition for Wegman, a Republican Party candidate. Thus, she maintained

she affiliated herself with the Democratic Party prior to signing Wegman’s petition and, as a

result, her own nominating papers were valid.

¶6 On December 23, 2015, a hearing was conducted before the Board’s hearing officer. On

January 5, 2016, the hearing officer recommended that the Board grant Moeller’s motion for

summary judgment and overrule Schmidt’s petition in its entirety. On January 7, 2016, the

Board conducted a hearing in the matter. It granted Moeller’s motion for summary judgment

and overruled Schmidt’s objection. The Board found as follows:

“[Moeller’s] Statement of Candidacy does not violate Section 8-8 of the Election Code

because [Moeller] has not impermissibly signed a nominating petition for a candidate

of one established political party and subsequently run as a candidate for another

established political party in the same election cycle; rather, [Moeller’s] first act of

political affiliation was to align herself with the Democratic Party by signing her own

petition. The act of signing a Republican candidate’s petition after signing her own

Democratic petition and before seeking nomination as a Democratic Party candidate

rendered [Moeller’s] signature on the Republican petition invalid but did not invalidate

her petition.”

¶7 On January 12, 2016, Schmidt filed a petition for judicial review of the Board’s decision

pursuant to section 10-10.1 of the Election Code (10 ILCS 5/10-10.1 (West 2014)). On

February 10, 2016, the circuit court affirmed the Board’s decision.

¶8 This appeal followed.

¶9 II. ANALYSIS

¶ 10 On appeal, Schmidt argues the Board erred in overruling her objection to Moeller’s

nomination papers and granting summary judgment in Moeller’s favor. “Where *** an

electoral board’s decision is challenged in court pursuant to section 10-10.1 of the Election

Code [citation] the proceeding is in the nature of administrative review.” Jackson-Hicks v. East

St. Louis Board of Election Commissioners, 2015 IL 118929, ¶ 19, 28 N.E.3d 170. On appeal,

we review the electoral board’s decision rather than that of the circuit court. Id. Additionally,

where the “facts are admitted or established and the only dispute concerns whether the

governing legal provisions were interpreted correctly,” we apply a de novo standard of review.

Id. ¶ 20.

¶ 11 A. Mootness

¶ 12 Initially, we note Moeller argues Schmidt’s appeal is moot. “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 effectual

relief.” Hossfeld v. Illinois State Board of Elections, 238 Ill. 2d 418, 423-24, 939 N.E.2d 368,

371 (2010). We find the public interest exception to the mootness doctrine applies under the

circumstances presented. That exception “permits a court to reach the merits of a case which

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would otherwise be moot if the question presented is of a public nature, an authoritative

resolution of the question is desirable for the purpose of guiding public officers, and the

question is likely to recur.” Goodman v. Ward, 241 Ill. 2d 398, 404, 948 N.E.2d 580, 584

(2011). A question of election law is, inherently, a matter of public concern. Id. at 404, 948

N.E.2d at 585. Further, we find no case addressing the precise factual question presented here.

Therefore, an authoritative resolution is desirable for guiding public officers. Finally, contrary

to Moeller’s assertion, we find the issue presented by this case is likely to recur. Therefore, we

will address the merits of Schmidt’s appeal.

¶ 13 B. Validity of Moeller’s Nomination Papers

¶ 14 On appeal, Schmidt asserts Moeller’s nomination papers should be held invalid. She

argues the plain language of section 8-8 of the Election Code prohibited Moeller from signing

petitions or being a candidate for more than one party in a single election cycle and Moeller

violated that provision by being a candidate for the Democratic Party and signing the

nominating petition of a Republican Party candidate.

¶ 15 The issue presented on appeal concerns the Board’s interpretation of a provision of the

Election Code. “When determining how the Election Code should be construed, we employ the

same basic principles of statutory construction applicable to statutes generally.”

Jackson-Hicks, 2015 IL 118929, ¶ 21, 28 N.E.3d 170. “Our primary objective is to ascertain

and give effect to the intent of the legislature.” Id. “When statutory language is plain and

unambiguous, the statute must be applied as written without resort to aids of statutory

construction [citation], and the court will not read into it exceptions, conditions, or limitations

that the legislature did not express [citation].” Id. “Where the meaning of a statute is

ambiguous, courts may look beyond the statutory language and consider the purpose of the

law, the evils it was intended to remedy, and the legislative history of the statute.” Cinkus v.

Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 217, 886 N.E.2d 1011,

1022 (2008).

¶ 16 Section 8-8 of the Election Code concerns the form of nomination petitions for members of

the General Assembly. 10 ILCS 5/8-8 (West 2014). It provides that each petition must include

“a statement of candidacy,” stating “that the candidate is a qualified primary voter of the party

to which the petition relates.” Id. Relevant to this appeal, section 8-8 also provides that “[a]

‘qualified primary elector’ of a party may not sign petitions for or be a candidate in the primary

of more than one party.” Id.

¶ 17 Here, Moeller signed nominating petitions of Democratic candidates and a Republican

candidate. She also submitted nomination papers to run as a Democratic candidate in the

primary election. Moeller’s conduct clearly violated the restriction set forth in section 8-8

against signing petitions or being a candidate in the primary of more than one party. However,

the Election Code is silent as to the consequences for such a violation. Schmidt asserts that,

because Moeller signed a petition for a Republican Party candidate, she was prohibited from

running for office as a Democratic Party candidate and her nomination papers must be held

invalid. Conversely, Moeller argues that since she first affiliated herself with the Democratic

Party by signing her own nominating petition, her nomination papers were valid and she was

entitled to run for office as a Democratic Party candidate. For the reasons that follow, we agree

with Moeller.

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¶ 18 Both Moeller and the Board relied on the First District’s decision in Watkins, 122 Ill. App.

3d 499, 461 N.E.2d 625, to support the validity of Moeller’s nomination papers. There, the

court held “that where an otherwise qualified voter has signed the nominating petitions of more

than one party, the signature appearing on the petition first signed is valid and all subsequent

signatures appearing on the nominating petitions of other parties are invalid.” Id. at 502, 461

N.E.2d at 627. The underlying facts in that case showed the plaintiff filed objections to the

nominating petitions of the defendant, a candidate for Democratic ward committeeman. Id. at

500, 461 N.E.2d at 626. He asserted the petitions violated a provision of the Election Code

similar to the one at issue in the case at bar, which prohibited any person from signing petitions

or being a candidate in the primary of more than one party. Id. Specifically, in that case, the

plaintiff alleged that 382 voter names that appeared on the defendant’s petitions also appeared

on the nominating petitions of a Republican Party candidate. Id. The Board rejected the

plaintiff’s objections, concluding “that if the voters in question had signed [the defendant’s]

nominating petitions for Democratic ward committeeman before signing the Republican

nominating petitions, then the signatures on [the defendant’s] petitions were valid.” Id. at 501,

461 N.E.2d at 626. The plaintiff appealed, arguing, in part, that “voters who sign[ed] the

nominating petitions of more than one party should have their names stricken from a

nominating petition irrespective of the order of signing.” Id.

¶ 19 On review, the First District agreed with the Board and stated as follows:

“The construction urged by [the] plaintiff would automatically curtail the right of an

otherwise qualified voter to participate in the primary electoral process by signing a

nominating petition if the voter even inadvertently signed the nominating petitions of

more than one party. [The] [p]laintiff argues that under these circumstances a voter’s

signature would be per se invalid and that the name should be stricken from the

nominating petitions of both political parties. We do not believe that this draconian

sanction represents the reasoned intent of our legislature, nor does the language of the

above cited statute mandate such a drastic result.” Id. at 501-02, 461 N.E.2d at 627.

The court went on to find its resolution to be “less restrictive” and “consistent with the

legislative intent evinced in *** the Election Code that a person signing a nominating petition

be qualified at the time of signing as well as with the laudable public policy of protecting the

right of the electorate to participate in the primary electoral process.” (Emphasis in original.)

Id. at 502, 461 N.E.2d at 627.

¶ 20 Here, the undisputed facts demonstrate Moeller first signed her own nominating petition as

a Democratic candidate for Representative and thereafter signed the nominating petition of a

Republican candidate for a different office. Under Watkins, Moeller’s signature on her own

petition was valid and her signature on the petition of the Republican candidate was invalid.

After signing the nominating petitions at issue, Moeller filed her nomination papers, which

included a signed statement of candidacy, asserting she was a qualified primary voter of the

Democratic Party. Given the rule set forth in Watkins, Moeller’s statement of candidacy was

accurate and her nomination papers were valid.

¶ 21 Schmidt asserts Watkins is factually distinguishable from the present case because it

involved only the validity of voter signatures and not, like the present case, a candidate for

office. Alternatively, she challenges that decision on the basis that it “craft[s] an exception to

the prohibition in [s]ection 8-8 that does not exist in the statute,” i.e., a “sequence of signing

exception.”

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¶ 22 To support her arguments, Schmidt has relied on the First District’s more recent decision in

Rosenzweig v. Illinois State Board of Elections, 409 Ill. App. 3d 176, 946 N.E.2d 1113 (2011).

There, the respondent, Hebda, signed a nominating petition for a Democratic Party candidate

for the office of Representative for the 59th Representative District. Id. at 177, 946 N.E.2d at

1114. The following month, she decided to run for the same office as a Republican Party

candidate and signed her own nominating petition and statement of candidacy. Id. at 177, 946

N.E.2d at 1114-15.

¶ 23 On review, the First District initially noted Hebda violated section 8-8 because she signed a

nominating petition for a Democratic candidate and subsequently signed her own nominating

petition to run as a Republican candidate. Id. at 180, 946 N.E.2d at 1117. It cited Watkins for

the proposition that “[w]here a person signs nominating petitions for more than one party, the

first signature is valid and all subsequent signatures are invalid.” Id. However, the court

concluded its analysis did not end there because, “[w]hile Hebda violated the restriction by

signing nominating petitions for more than one party, [the court] must also determine whether

her candidacy itself was a violation of the remaining restriction in section 8-8.” Id. It addressed

the rationale behind the restrictions, stating as follows:

“The Seventh Circuit explained the reasoning behind a parallel provision in the

Election Code that prohibits circulators from soliciting signatures for nominating

petitions on behalf of more than one political party in a single election cycle. [Citation.]

The court explained that such restrictions prevent political maneuvers that could affect

the quality of the candidates who will be on the ballot. [Citation.] If one party

determines that a certain opponent will be a weaker candidate in the general election,

that party could circulate petitions on behalf of the weaker candidate for the primary

election in the hope that votes will be drawn away from an opposition candidate the

party deems to propose a greater threat to its chances of prevailing in the general

election.” Id. at 181, 946 N.E.2d at 1117 (citing Citizens for John W. Moore Party v.

Board of Election Commissioners, 794 F.2d 1254, 1261 (7th Cir. 1986)).

The court found that what Hebda did was “an even more egregious example of the type of

political maneuvering that the restriction intend[ed] to prevent because she signed the

nominating petition of a candidate for the very office for which she intended to run, in effect,

supporting the nomination of her own opponent.” Id. The court then held “section 8-8 of the

Election Code prohibit[ed] signing a nominating petition for a candidate from one political

party and then running as a candidate for another political party in the same election cycle.” Id.

at 181, 946 N.E.2d at 1117-18.

¶ 24 Schmidt argues Rosenzweig did not depend on the sequencing of signatures and supports

her position that Moeller could not run as a candidate for the Democratic Party when she also

signed the petition of a Republican Party candidate. First, to the extent Schmidt asserts

Rosenzweig stands for the proposition that the sequencing of signatures is irrelevant, we

disagree. We note that given the factual circumstances in Rosenzweig, it is wholly consistent

with Watkins. Specifically, because the respondent in Rosenzweig first signed the petition of a

Democratic candidate, she could not later run as a Republican candidate. Second, in

Rosenzweig, the First District relied heavily on its finding that the respondent engaged in an

“egregious” from of political maneuvering, noting she signed the petition of a Democratic

candidate and then ran for the same office as a Republican. The present case is factually

distinguishable, in that Moeller did not sign the nominating petition of her opponent but of a

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Republican candidate running for a completely separate office. Additionally, the record fails to

suggest that she was engaging in any type of political maneuvering or that she did anything

more than inadvertently sign petitions for more than one party.

¶ 25 Next, to the extent Schmidt challenges Watkins as wrongly decided, we disagree. Contrary

to Schmidt’s assertions, Watkins did not craft a “sequence of signing exception” into the

Election Code. Rather, it determined the consequences for a violation of a restriction in the

Election Code where the statute was otherwise silent and ambiguous. Additionally, we note

that “[w]here *** the legislature chooses not to amend a statute after a judicial construction, it

will be presumed that the legislature acquiesced in the court’s statement of legislative intent.”

Nelson v. Artley, 2015 IL 118058, ¶ 23, 40 N.E.3d 27. In this instance, Watkins was decided in

1984. Given the legislature’s failure to amend the relevant statutory language, we find the First

District’s interpretation of that language in Watkins is consistent with legislative intent.

Further, although Watkins involved the validity of only voter signatures, we find no reason to

hold it inapplicable to the signatures of a candidate for office.

¶ 26 III. CONCLUSION

¶ 27 For the reasons stated, we affirm the circuit court’s judgment affirming the Board’s

decision.

¶ 28 Affirmed.

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