The opinion
JUSTICE BARRY, concurring in part and dissenting in part:
I agree with the majority to the extent that it allowed the names of the respondent candidates to appear on the official ballot. I do not agree that the party designation “Action IV Party” was an improper designation for the respondent party; and I, therefore, dissent from that portion of the majority opinion which reverses the decision of the electoral board to permit respondents’ designation as “Action IV Party” to be included on the ballot.
First, some of the history of the matter in the village of Steger before us should be again detailed. Respondent William Hodge first ran for village clerk under the “Good Government” party label in 1969. He ran to succeed himself in 1973 under the label “Better Government,” as did Louis Sherman and Marcia Piacentini for village president and trustee, respectively. Hodge again ran for clerk in 1977 under “Action Party.” The latter ticket was also comprised of Louis Sherman for village president, Marcia Piacentini, Don Paradiso and Garland Love for trustees. At the ensuing election in 1979, when three trustees were to be elected, three candidates petitioned using the party label, “Action II Party” — Bernard Vasquez, the petitioner herein, Edward C. Grollemond and Richard J. Porter, respondents herein; and in 1981, five candidates for the village offices — Sherman, Hodge, Milford Bisping, Alvin Harcus and “Red” Loman — petitioned under the party name “Action III Party,” and were unopposed. Then, in 1983, four candidates for trustee filed petitions, again as a new political party named “Action IV Party.” Of the four 1983 “Action IV Party” candidates, two had not previously been candidates and had not had any association with any of the aforementioned parties.
Though the party labels bear obvious similarities, they are clearly distinguished by the insertion of Roman numerals “II,” “III” and “IV” in between the words “Action” and “Party,” not “after the party name” as suggested in the majority opinion. Mr. Vasquez testified that the citizens of Steger associate the Action Party with Lou Sherman and Bill Hodge “because they are the founders of such parties.” (Emphasis added.) It is also important to note that no candidate filed in 1983 using the party designation “Action III Party” or, for that matter, any other party label which used the words “Action Party.”
As I understand article 10 of the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 10 — 1 et seq.), the purpose is to provide a means for those choosing to associate politically to place a slate of candidates on the ballot and, at the same time, to prevent confusion between the name used by those so associated and that of an established party. We must also keep in mind that, like the right to vote, access to the ballot as a candidate is a basic political right that should not be unduly restricted.
The majority seems to base its holding upon its conclusion that respondents “for all practical purposes” concede that “Action IV Party” was not a new party because it received more than 5% of the total vote at the “next preceeeding [sic] election.” I have searched the briefs and the record and can find no such concession by the respondents. The respondents do not deny, of course, that some of them in the past have used the “Action” designations, and respondents do state that “Action III Party” was an established political party after the 1981 village election because “Action III Party” received more than 5% of the vote in the 1981 election. And, respondents stated during oral argument before this court that “Action IV Party” contains the name in part of “Action III Party,” which had been an established political party. These admissions do not, in my opinion, amount to a concession that “Action IV Party” was an established party; and they do not detract from respondents’ position in this appeal. Further, as indicated by the majority, the record is totally devoid of any party structure or activity of any kind by the respondents between general elections.
When a party is established under the 5% rule in one election year and it fails to field any candidate for purposes of the subsequent election, then that party ceases to exist as an established political party. (Foster v. Municipal Officers Electoral Board (1983), 113 Ill. App. 3d 721 , 447 N.E.2d 990 .) Accordingly, “Action III Party” ceased to be an established party when it failed to nominate candidates for the 1983 municipal primary (as did “Action Party” in 1979 and “Action II Party” in 1981). To hold otherwise would allow for independent parties and splinter groups to remain “alive” indefinitely.
In Foster, the issue before us was squarely addressed, and, in my opinion, correctly determined. There, the “Countryside Independent Party” elected ward aldermen in the city of Countryside in 1981. The party and its candidates received more than 5% of the vote cast. In 1983, a party named the “Independent Party of Countryside” petitioned as a new party. Another “Independent Party of Countryside” had elected candidates in 1979. The reviewing court held that the “Independent Party of Countryside” had been an established political party after the 1979 municipal election, but then ceased to exist as an established political party when it slated no candidates in the 1981 primary. Hence, the “Independent Party of Countryside” was a “new” party in 1983, and nomination by petition for the general election was proper.
The appellate court in Foster also held that the name “Independent Party of Countryside” was not the same as the name “Countryside Independent Party” within the meaning of section 10 — 5(2) of the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 10 — 5(2)), which provides that a new party “shall not bear the same name as, nor include the name of any established political party ***.” The fact that the words were in different order in one name than in the other was sufficient to make the names different. Analogizing to Foster, I am convinced that the change from “Action III Party” to “Action IV Party” was likewise sufficient to make the names different. The fact that some of the individual members of “Action III Party” created and became members of the “Action IV Party” is not controlling. In 1983 “Action IV Party” was a new political party and, as in Foster, nomination by petition was proper.
In addition it is clear in the instant case that there was no confusion among the electorate since only one slate of nominees used the words “Action Party” in their party name. Further, the absence of confusion was admitted in uncontradicted testimony before the electoral board and by counsel for the petitioner and counsel for the respondents in oral argument before this court. In this connection it is interesting to note that the Foster court thought the similarity in names was confusing but that the legislative purpose of section 10 — 5 was not clearly expressed to be to prohibit confusion.
I believe that section 10 — 5(2) is primarily intended to prevent a new political party from trading on the name of an established party — particularly one of the major parties. An example of the sort of abuse that the statute seeks to prevent was demonstrated in Doty v. Representation for Every Person (REP) Party (1981), 97 Ill. App. 3d 316 , 422 N.E.2d 1156 . There, the word “REP” was determined to be within the proscription of the statute because it was readily susceptible of interpretation as “Republican,” one of the major established parties.
By contrast, I find nothing inherently confusing in the use of “Action IV Party” as a party designation for the 1983 municipal election in the village of Steger — certainly it cannot be said that the instant case falls within the rule of Doty. Finally, it is common knowledge that smaller units of government in Illinois often have difficulty attracting candidates, and can ill afford costly primaries, particularly when no candidates seek nomination. The statutory scheme of the Election Code, as discussed herein, benefits such governmental entities as well as the individuals who seek to serve them. The general election petition procedure has become standard in local elections. I believe the statutory purpose is not violated when, as here, no confusion or advantage results.
For the foregoing reasons, I would affirm the decision of the electoral board.