Zurek v. Franklin Park Officers Electoral Board

2014 IL App (1st) 142618
Nos. 1-14-2618, 1-14-3062 (cons.)
Opinion filed November 4, 2014

FIFTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

KEN ZUREK, ) Appeal from the Circuit Court
) of Cook County.
Petitioner-Appellant, )
)
v. ) Nos. 14 COEL 19, 14 COEL 25
)
THE FRANKLIN PARK OFFICERS )
ELECTORAL BOARD, and Its Members ) The Honorable
BARRETT F. PEDERSEN, Individually ) James A. Zafiratos and
and as Chairman, JOHN C. JOHNSON, ) Paul A. Karkula,
Individually and as Member, TOMMY ) Judges, presiding.
THOMSON, Individually and as Franklin )
Park Village Clerk; RANDALL )
PETERSEN, Individually and as Objector, )
and ROBERT GODLEWSKI, Individually )
and as Objector, )
)
Respondents-Appellees )
)
(David Orr as Cook County Clerk, and Lisa )
Madigan as Illinois Attorney General, )
Respondents). )

JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices McBride and Reyes concurred in the judgment and opinion.
 Nos. 1-14-2618, 14-3062 (cons.)

OPINION

¶1 Petitioner Ken Zurek and others collected over 700 signatures for the

purpose of placing on the ballot the question of whether there should be term

limits for Franklin Park village officials. Respondents Randall Petersen and

Robert Godlewski filed objections, and the Franklin Park Electoral Board

sustained their objections and refused to place the question on the ballot. The

circuit court affirmed. For the following reasons, we reverse and remand for

further proceedings.

¶2 BACKGROUND

¶3 I. Proposed Referendum Question & Objections

¶4 In June and July, 2014, Ken Zurek and others collected over 700

signatures in order to place on the ballot for the general election on November

4, 2014, "the following binding referendum question of public policy":

"Shall the Village of Franklin Park enact term limits prohibiting all

people from serving more than eight (8) years as Village Trustee, Village

President and Village Clerk, including service as Village Trustee, Village

President and Village Clerk, effective immediately upon approval and

passage of this binding referendum?"

¶5 On August 11, 2014, Randall Petersen and Robert Godlewski filed an

"Objectors' Petition" to Zurek's proposed referendum question. They did not

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object to the number of signatures or the validity of those signatures. Their

objections were directed solely at the validity of the question itself. Primarily,

they objected on the ground that the question referred to years rather than terms

of service and that, thus, the question was not "tied to the regular election

cycles." They argued that, as a result, the question was ambiguous as to what

would happen when an officer reached the eight-year limit and ambiguous as to

whether the referendum had the power to nullify the results of the prior 2013

election.

¶6 II. Appeal No. 1-14-2618

¶7 A. Petition

¶8 Ken Zurek filed a petition with the circuit court on August 15, 2014,

seeking the replacement of all three members of the Franklin Park Electoral

Board with three public members, claiming that it was to ensure a fair and

impartial hearing of the objections to his proposed term limit referendum

pending before the Franklin Park Electoral Board.

¶9 In his petition, he alleged the following facts.

¶ 10 On July 28, 2014, Zurek and Peter Negron, who is not a party to this

consolidated appeal, filed a proposed "referendum question of public policy"

with the Franklin Park village clerk which asked whether Franklin Park should

enact term limits prohibiting all the village's elected officials from serving more

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than eight years and, on August 11, 2014, Randall Petersen and Robert

Godlewski filed a petition objecting to the referendum question.

¶ 11 Franklin Park has an electoral board whose three members are: (1) the

village president, Barrett F. Pedersen; (2) a village trustee, John C. Johnson;

and (3) the village clerk, Tommy Thomson. If the proposed term-limit

referendum is passed, it would preclude all three of them from running for their

positions again in 2017 and thereafter.

¶ 12 Pedersen, as the village president, is a salaried employee and has

announced that he is running again for village president in 2017, and he has

formed a political committee to achieve that end.

¶ 13 John C. Johnson, as a village trustee, and Tommy Thomson, as the

village clerk, are also salaried employees.

¶ 14 Attached to the petition were several documents. The first exhibit

included, among other things, a copy of an amendment, dated February 10,

2014, of the "Statement of Organization" for "Friends of Barrett Pedersen,"

which stated that the office he was seeking was "Franklin Park Mayor 2017."

¶ 15 The second exhibit was a copy of a Herald Journal article from July 31,

2014, entitled: "Petitions seek term limit referendum in Franklin Park." The

article described Zurek and others as being for it, and then stated: "Trustee

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John Johnson sees it differently." The article then quoted Johnson as stating:

"Every two years, people have the opportunity to elect half the board."

¶ 16 B. Response

¶ 17 The record does not contain any response to the petition by Randall

Petersen and Robert Godlewski, the two individuals who filed objections to

Zurek's proposed referendum question.

¶ 18 However, on August 25, 2014, the Franklin Park Electoral Board filed a

response, which stated:

"The Objections raise only questions of law as to the question itself.

There is no attack to signatures, circulators, form of the petition, or the

manner of collecting the signatures. The arguments made are all as to the

constitutionality and legal import of the question itself. There are no fact

questions for the Electoral Board to decide."

As quoted above, the board's response stated that there were "no fact questions

for the Electoral Board to decide" and, thus, the board did not dispute any facts

asserted in Zurek's August 15, 2014, petition.

¶ 19 In its response, the board argued that section 10-9(6) of the Election

Code expressly limits the grounds on which an electoral board member may be

disqualified to only those situations in which an electoral board member "is a

candidate for the office with relation to which the objector's petition is filed."

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Pub. Act 98-115 (eff. July 29, 2013) (amending 10 ILCS 5/10-9 (West 2012)).

However, since the board chose not to dispute any facts, it did not deny that the

three members of the electoral board are candidates for their same positions in

the next election.

¶ 20 C. Reply

¶ 21 In his reply, Zurek argued, among other things, that the board lacked

standing to defend its own decision in court.

¶ 22 D. Order Appealed from in Appeal No. 1-14-2618

¶ 23 On August 28, 2014, the trial court denied Zurek's petition to disqualify

the three-member electoral board, holding:

"1. The Court rules in accordance with 10 ILCS 5/10-9(6)(d) which

establishes a process for the substitution of an Electoral Board in the

event of a Conflict, and not based upon Cook County Circuit Rule 21 as

claimed by Petitioner. See Kaemmerer, 333 Ill. App. 3d at 959-60

[Kaemmerer v. St. Clair County Electoral Bd., 333 Ill. App. 3d 956, 959-

60 (2002)].

2. The petitioner has not overcome the 'presumption of honesty' by

falling to show either 'dishonesty' or an 'unacceptable risk of bias.' Girot

v. Keith, 212 Ill. 2d 372 at 380 [Girot v. Keith, 212 Ill. 2d 372, 380

(2004)].

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Accordingly, it is hereby ordered that petitioners request to disqualify

the board is denied."

¶ 24 This order was entered in case No. 14 COEL 19, and it is the subject of

appeal No. 1-14-2618. On August 29, 2014, Zurek filed a notice of appeal from

this order, which asked this court:

"to reverse the above-cited Circuit Court Final Order [filed August 28,

2014] and remand this cause with directions to the Circuit Court of Cook

County in Illinois to:

(1) Enter an order replacing the entire Franklin Park Electoral Board

with public members forthwith, and

(2) Should this appeal be considered mooted the Appellate Court

should decide this appeal under the public interest doctrine."

¶ 25 The notice of appeal in appeal No. 1-14-2618 does not list any

defendants and instead is captioned "in the matter of" Zurek's term limit petition

and his request to replace the Franklin Park Electoral Board with public

members.

¶ 26 III. Appeal No. 1-14-3062

¶ 27 On August 26, 2014, which was two days before the trial court's order in

appeal No. 1-14-2618, Zurek filed a motion with the electoral board to strike

the objectors' petition alleging numerous defects, including: (1) that the

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objectors are not legal voters as expressly required by the Election Code; (2)

that the objectors do not allege any actual conflict if the referendum question is

applied to current Franklin Park officers; (3) that, since the term of office for

the Village President, Trustee and Clerk remains four years, the referendum's

eight-year limit works perfectly with the existing election cycle; (3) that the

referendum prohibits an individual from serving more than two terms; and (4)

that a hypothetical conflict in some future election is not enough to defeat the

will of the over 700 voters who signed in favor of the referendum, without a

single signature challenged.

¶ 28 Zurek attached as an exhibit documents showing that the voters of the

Village of Niles passed in the April 9, 2013, general election a referendum

which was worded almost exactly the same as Zurek's proposed referendum.

The Niles referendum asked: "Shall the Village of Niles enact term limits

prohibiting all people from serving more than 15 years on the Village of Niles

Board of Trustees, including service as President/Mayor of the Village and

Village Board, effective immediately upon approval and passage of this binding

referendum?"

¶ 29 On August 26, 2014, Zurek also filed: (1) written objections to the

composition of the board, in which he asked the three board members to recuse

themselves so that they could be replaced with public members; (2) a motion to

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disqualify the board's attorney; and (3) a motion to strike various rules of the

Franklin Park Electoral Board, such as Rule No. 10 which authorized the board

to retain an attorney for the purpose of defending the board's decision in court.1

He moved to strike on the ground that the board had no standing to act as an

advocate.

¶ 30 The board held public hearings on Petersen's and Godelewski's objections

to Zurek's referendum question on August 18, September 11 and September 17,

2014, and allowed public comment on September 11. Those present at the

public hearings included Zurek and Patrick G. Connelly, who was the counsel

for Petersen and Godlewski.

¶ 31 At the public hearing on September 11, 2014, the board members

considered Zurek's motion that they recuse themselves, and they voted to adopt

the August 28, 2014, trial court order which had denied this same request in the

other case. Zurek objected and asked the board members to reconsider; and the

board voted again to deny his recusal motion.

¶ 32 On September 17, 2014, the Franklin Park Electoral Board, consisting of

Pedersen, Thomson and Johnson, issued an 11-page document entitled

"Findings and Decision." Pub. Act 98-115 (eff. July 29, 2013) ("The electoral
1
The rules are in the appellate record, and Rule No. 10 provides in relevant part:
"The Board's attorney is authorized and directed to defend the Board's decision if a
petition for judicial review is filed and to defend the Board in any litigation that
may arise thereafter."
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board must state its findings in writing, and must state in writing, which

objections, if any, it has sustained."). In this decision, the board found that the

"Electoral Board was legally constituted according to the laws of the State of

Illinois," and it denied Zurek's objections to the composition of the board. The

primary reason which it provided in support of its denial was: "In light of the

[Judge] Zafiratos Order [entered August 28, 2014], Proponent's Electoral Board

Motion is denied." In addition, the board observed that the "Election Code

contains no mechanism for electoral board members to individually recuse

themselves from service for any reason."

¶ 33 With respect to Petersen and Godlewski's objections, the board sustained

their objections:

"with the result that the Petition for Referendum is found INVALID, in

conformity with the findings above, and that the Proponent's referendum

question shall not appear on the ballot for the November 4, 2014, General

Election."

¶ 34 On September 18, 2014, the next day after the board issued its decision,

Zurek petitioned the circuit court for judicial review. 10 ILCS 5/10-10.1 (West

2012) (an "objector aggrieved by the decision of an electoral board may secure

judicial review of such decision in the circuit court" by filing "a petition with

the clerk of the court" and serving a copy "upon the electoral board and other

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parties to the proceeding"). The requested relief included that, if it should "be

rendered impossible for the term limit referendum to be included on the

November 4, 2014 general election ballot then the court should enter an order

directing the Cook County Clerk to include the term limit referendum on the

ballot for the next scheduled general election."

¶ 35 On September 25, 2014, Petersen and Godlewski, the two objectors, filed

a motion to dismiss Zurek's petition for lack of subject matter jurisdiction

because Zurek allegedly failed to file proof of service. The attorney and law

firm that filed an appearance in this case on behalf of the Village of Franklin

Park was the same attorney and law firm that filed this motion on behalf of the

objectors. The board also joined the objectors' motion.

¶ 36 The trial court affirmed the decision of the board less than a month later,

on October 7, 2014. At the hearing, the court stated that it would not consider

the "issue regarding the composition of the Board," because that issue had

already been decided by another judge. The next day, on October 8, 2014,

Zurek filed a notice of appeal from that decision. 10 ILCS 5/10-10.1 (West

2012) (the trial court "shall make its decision promptly"). This became appeal

No. 1-14-3062.

¶ 37 A day after filing appeal No. 1-14-3062, Zurek filed a motion on October

9, 2014, with the appellate court to consolidate both appeals, which this court

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granted on October 10, 2014. This court also ordered an expedited briefing

schedule, with appellant's consolidated brief due Wednesday, October 15, 2014,

appellee's consolidated brief due Monday, October 20, 2014, and no reply brief

allowed. Early voting began in Cook County on Monday, October 20, 2014.

¶ 38 The petition in circuit court No. 2014 COEL 25 and the subsequent

notice of appeal for No. 1-14-3062 includes as defendants: (1) Randall Petersen

and Robert Godlewski, the two objectors to Zurek's proposed referendum; (2)

David Orr, the Cook County clerk; and (3) Lisa Madigan, the Illinois Attorney

General. Zurek's petition explains that he named: (1) David Orr because, in

Orr's capacity as county clerk, he is required to certify and print the ballot for

the November 4, 2014, election in Franklin Park; and (2) Lisa Madigan

because, in her capacity as attorney general, she is required to defend the

constitutionality of Illinois statutes. Although Lisa Madigan and David Orr

filed appearances in the court below, they chose not to file briefs with this

court. David Orr filed an answer in the trial court stating that he had "no

interest" in the issue. Thus, they are not parties to this appeal.

¶ 39 ANALYSIS

¶ 40 As we stated above, petitioner Ken Zurek and others collected over 700

signatures for the purpose of placing on the ballot the question of whether there

should be term limits for Franklin Park village officials. Respondents Randall

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 Nos. 1-14-2618, 14-3062 (cons.)

Petersen and Robert Godlewski filed objections, and the Franklin Park Electoral

Board sustained their objections and did not place the question on the ballot.

The circuit court affirmed. For the following reasons, we reverse and remand

for further proceedings.

¶ 41 I. Standing

¶ 42 As a preliminary issue, petitioner Zurek argued in his appellate brief that

the board lacked standing to file a brief in the trial court. In addition, he filed an

appellate motion stating that the board lacked standing in this court and

requesting that we disregard the board's appellate brief. He argued that "for the

Franklin Park Municipal Officers Electoral Board to act as [an] advocate in this

appeal is just as ludicrous as if [the trial judges] would hire attorneys to file

briefs in their behalf in support of their decisions." The board chose not to

address the standing issue in its appellate brief, but it did file a separate

response to the motion. We took the motion and response under advisement to

be decided in this opinion and, for the reasons discussed below, we conclude

that the board has standing and, even if it does not have standing, it would not

affect our decision in this case. Sakonyi v. Lindsey, 261 Ill. App. 3d 821, 823

(1994) (determination of whether the board has standing to defend its decision

does not affect the outcome of the appeal).

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¶ 43 In Bendell v. Education Officers Electoral Board for School District 148,

338 Ill. App. 3d 458 (2003), this court addressed the issue of: "whether the

Board and its members have standing to appeal the circuit court's reversal of the

Board's decision." Bendell, 338 Ill. App. 3d at 460. However, in the case at

bar, the issue is whether the board can file a brief and argue its position as a

nominal defendant.

¶ 44 In Bendell, we found:

"[T]he Election Code does not expressly or implicitly authorize the Board

to assume the role of advocate for the purpose of prosecuting an appeal.

See 10 ILCS 5/1-1 et seq. (West 1996); Kozenczak, 299 Ill. App. 3d at

207. Instead, the Election Code only authorizes the Board to conduct

hearings, administer oaths, subpoena and examine witnesses, subpoena

documentary evidence and pass upon objections to nomination petitions

and objections to petitions for the submission of questions of public

policy. See 10 ILCS 5/10-9, 10-10, 28-4 (West 1996); Kozenczak, 299

Ill. App. 3d at 207. The court further held that the Board functions in an

adjudicatory or quasi-judicial capacity, and that to allow the Board to

assume the role of advocate would compromise the Board's required duty

of impartiality. Kozenczak, 299 Ill. App. 3d at 207. The court further

stated that the Board was not a party before an administrative agency, nor

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was it personally aggrieved by the reversal of its decision. Kozenczak,

299 Ill. App. 3d at 207. We find the reasoning in Kozenczak and

conclude, therefore, that the Board lacks standing to prosecute this

appeal." Bendell, 338 Ill. App. 3d at 460.

¶ 45 The above quote discusses sections of the Code as they existed in 1996.

However, there have been no changes to these sections of the Code which affect

our decision. See Pub. Act 98-115 (eff. July 29, 2013).

¶ 46 In the above quote, we relied extensively on the Kozenczak case in which

the appellate court ruled, as we did in Bendel, that the electoral board lacked

standing to prosecute an appeal. Kozenczak, 299 Ill. App. 3d at 207 ("the Board

lacks standing to prosecute this appeal").

¶ 47 There are many appeals in which the electoral board has filed a brief; but

these are primarily cases in which the appellee did not challenge the board's

standing and thus standing was not an issue in those appeals. E.g., Burke v.

Electoral Board of Village of Bradley, 2013 IL App (3d) 130141, ¶ 32 (the

electoral board appears to have filed an appellate brief because the court stated

that "[n]either the Electoral Board nor the objector has identified a single case"

with a particular holding; but standing was not raised as an issue).

¶ 48 Similarly, the Kozenczak court observed: "While the Board cites several

cases in which an electoral board appealed the reversal of its decision to the

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appellate court [citations], we find each of those cases to be inapposite. The

appellee never challenged the electoral board's standing in those cases, and,

thus, standing was never an issue on appeal." Kozenczak, 299 Ill. App. 3d at

207 (citing El-Aboudi v. Thompson, 293 Ill. App. 3d 191, 227 (1997); Thomas

v. Powell, 289 Ill. App. 3d 143 (1997); Allord v. Municipal Officers Electoral

Board for the Village of South Chicago Heights, 288 Ill. App. 3d 897 (1997);

and Schumann v. Fleming, 261 Ill. App. 3d 1062 (1994)).

¶ 49 The board failed to cite any authority to support its position that it has

standing to file a brief and plaintiff cannot cite a case where the board was

prohibited from filing a brief. The board's response asserts that a response by an

electoral board is filed "virtually every time an electoral board matter is

appealed," and that its counsel is "counsel to many electoral boards during

election cycles." In addition, we cannot find an Illinois case that states an

electoral board cannot file a brief when it has been made a nominal defendant in

a lawsuit.

¶ 50 In Speck v. Zoning Bd. of Appeals of City of Chicago, 89 Ill. 2d 482, 485-

86 (1982), our supreme court analyzed the powers and responsibilities of the

zoning board as set forth in the Chicago zoning ordinance, and concluded that a

zoning board lacked standing to prosecute an appeal from a reversal of its own

decision, since the board functioned in an adjudicatory or quasi-judicial

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capacity and the ordinance did not authorize the board, either explicitly or

implicitly, to act as an advocate. Speck, 89 Ill. 2d at 485-86.

¶ 51 From this Speck line of cases, our supreme court subsequently carved out

an exception in Braun v. Retirement Board of Firemen's Annuity & Benefit

Fund, 108 Ill. 2d 119, 128 (1985). In Braun, the supreme court observed that

the retirement board, unlike the zoning board in Speck, had extensive

managerial responsibilities so that it was more than a tribunal. Braun, 108 Ill.

2d at 128.

¶ 52 However, the Kozenczak court expressly held that the Braun exception

does not apply to election boards, for the following reasons:

"Like the zoning ordinance in Speck, the Election Code (10 ILCS 5/1-

1 et seq. (West 1996)) does not expressly or implicitly authorize the

Board 'to assume the role of advocate for the purpose of prosecuting an

appeal.' See Speck, 89 Ill. 2d at 485. Instead, the Election Code only

authorizes the Board to conduct hearings, administer oaths, subpoena and

examine witnesses, subpoena documentary evidence, and pass upon

objections to nomination petitions and objections to petitions for the

submission of public policy. See 10 ILCS 5/10-9, 10-10, 28-4 (West

1996). Thus, like the zoning board in Speck, the Board here functions 'in

an adjudicatory or quasi-judicial capacity,' and to allow the Board to

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assume the role of advocate would compromise the Board's required duty

of impartiality. See Speck, 89 Ill. 2d at 485-86. ***

Furthermore, unlike the retirement board in Braun, there is no

evidence that the Board in this case '[had] extensive managerial

responsibilities [so that it was] more than a tribunal.' Braun, 108 Ill. 2d at

128. In fact, the Election Code provides otherwise. Therefore, Braun is

distinguishable, and the Board lacks standing to prosecute this appeal

according to Speck." Kozenczak 299 Ill. App. 3d at 207.

Thus, the Braun exception does not apply to the case at bar, and the Speck line

of cases concerns standing to appeal, not standing to file a brief when the board

is made a nominal defendant in a lawsuit.

¶ 53 The only case cited by the board in its response to Zurek's motion is

Kozenczak. In its response, the board argues that, since it was named as a

respondent, it therefore has standing to file a brief.

¶ 54 The only statutory section cited by the board in its response is section

10-10.1 of the Election Code (10 ILCS 5/10-10.1 (West 2012)), which governs

judicial review of electoral board decisions and which, the board argues,

authorizes it to "act[] as a Respondent." However, this section does not say

that. This section directs the objector to serve a copy of his or her petition on

the electoral board which, in turn, then triggers the board's duty to file the

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record of proceedings with the clerk of the court. 10 ILCS 5/10-10.1 (West

2012). This section specifically provides: "No answer to the petition need be

filed ***." 10 ILCS 5/10-10.1 (West 2012). There is nothing in this section

which confers standing on the board to act as an advocate for its administrative

decision in subsequent court proceedings. Cf. Bettis v. Marsaglia, 2013 IL App

(4th) 130145, ¶ 27 (the Election Code does not require the naming of the

electoral board and its members in the caption of the petition for judicial

review).

¶ 55 We continue to adhere to the view we expressed in Bendell that electoral

boards must remain impartial and cannot simultaneously serve as impartial

adjudicators while appealing the reversal of their own decisions. However, as

we have previously pointed out, plaintiff made the board a nominal defendant,

and as a result, the board should have standing to file a brief. Thus, the Franklin

Park Electoral Board and its three members, Barrett F. Pedersen, John C.

Johnson and Tommy Thompson, have standing to pursue this appeal.

¶ 56 However, there is no real standing issue in this case. Traditionally, standing

is a legal concept that applies to one bringing a lawsuit and requires that a party

have a sufficient personal and direct stake in the controversy to obtain a judicial

resolution of it. Standing requires that there be some kind of injury or damage

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in fact, such that the party can maintain a suit in the traditional adversarial

relationship found in the judicial process.

¶ 57 We cannot find any authority for the concept that standing applies to a

nominal defendant's ability to file a brief in the appellate court, nor has plaintiff

cited any relevant authority to that issue. 35 Am. Jur. Proof of Facts 3rd 493

(1996).

¶ 58 However, even if the Board did not have standing, this would not affect the

standing of the objectors to pursue this appeal. Bendell, 338 Ill. App. 3d at 461

(the objector "has standing to prosecute this appeal"); Kozenczak, 299 Ill. App.

3d at 208 (the objector "clearly has standing to prosecute this appeal"). They

still have standing, and we will consider their brief.

¶ 59 II. Standard of Review

¶ 60 Appeal No. 1-14-3062 includes a decision by the electoral board, as well

as a ruling by the trial court. Typically, when an appeal includes both a

decision by an electoral board and a ruling by the trial court, we review the

decision by the electoral board and not the ruling by the trial court. Cinkus v.

Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 212

(2008) ("where a circuit court reviews an electoral board's decision *** we

review the decision of the board, not the court"). However, the review in this

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case is somewhat convoluted because the board's decision was based on a prior

trial court's order, which was the order in appeal No. 1-14-2618.

¶ 61 The order in appeal No. 1-14-2618 includes only a ruling by the trial

court, but both appeals concern the same preliminary question which must be

answered before the objectors' petition can be addressed, and that is: whether

the existing three-person electoral board could review the objectors' petition.

¶ 62 First, we observe that " '[j]udical review of the decision of an electoral

board is intended to remedy arbitrary or unsupported decisions.' " Anderson v.

McHenry Township, 289 Ill. App. 3d 830, 832 (1997) (quoting Reyes v.

Bloomingdale Township Electoral Board, 265 Ill. App. 3d 69, 72 (1994)).

While we review questions of fact deferentially and we will disturb factual

determinations only if they are against the manifest weight of the evidence, we

review questions of law de novo. Anderson, 289 Ill. App. 3d at 832 (citing

Reyes, 265 Ill. App. 3d at 72). A judgment is against the manifest weight of the

evidence when an opposite conclusion is readily apparent, or when the findings

appear to be unreasonable, arbitrary or not based upon the evidence. Rhodes v.

Illinois Central Gulf R.R., 172 Ill. 2d 213, 242 (1996).

¶ 63 Since the resolution of this appeal requires us to interpret a section of the

Election Code, it presents a question of law that we review de novo. Metzger v.

DaRosa, 209 Ill. 2d 30, 34 (2004). De novo consideration means that we

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perform the same analysis that a trial judge would perform. Khan v. BDO

Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

¶ 64 When we construe the meaning of a statute, "the primary objective of this

court is to ascertain and give effect to the intention of the legislature, and all

other rules of statutory construction are subordinated to this cardinal principle."

Metzger, 209 Ill. 2d at 34. "The plain language of the statute is the best

indicator of the legislature's intent." Metzger, 209 Ill. 2d at 34-35. "When the

statute's language is clear, it will be given effect without resort to other aids of

statutory construction." Metzger, 209 Ill. 2d at 35. "When interpreting

legislative enactments, we must read the statute as a whole and not as isolated

provisions." Metzger, 209 Ill. 2d at 37. In this endeavor, we consider both any

stated purpose of the particular code, as well as what Illinois courts have

previously determined the purpose of the code to be. Metzger, 209 Ill. 2d at 37.

We view the code "as a whole" in order to determine the purpose that the code

was "primarily designed" to accomplish. Metzger, 209 Ill. 2d at 38.

¶ 65 III. The Election Code

¶ 66 Section 10-9 of the Election Code (the Code) provides that the

"municipal officers electoral board" will "hear and pass upon objections to the

nomination of candidates for officers of municipalities." 10 ILCS 5/10-9(3) (eff.

July 29, 2013).

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 Nos. 1-14-2618, 14-3062 (cons.)

¶ 67 Section 28-4 states in its first sentence that, in addition to applying to

candidates, section 10-9 "shall apply to and govern, insofar as may be

practicable, objections to petitions for the submission of questions of public

policy" (10 ILCS 5/28-4 (West 2012)), such as the term-limit referendum

question proposed in the case at bar by Zurek. Section 28-4 also repeats in the

next paragraph that the "electoral board to hear and pass on objections" to

public policy questions "shall be the electoral board specified in Section 10-9."

10 ILCS 5/28-4 (West 2012).

¶ 68 Although the first sentence uses the word "shall," the legislators chose to

soften the normally mandatory quality of this word with the modifying phrase:

"insofar as may be practicable." Brennan v. Illinois State Board of Elections,

336 Ill. App. 3d 749, 759 (2002) ("The use of the word 'shall' is generally

regarded as mandatory when used in a statutory provision, but can be construed

as directory depending on the legislative intent."); Courtney v. County Officers

Electoral Board, 314 Ill. App. 3d 870, 873 (2000) ("The use of the word 'shall'

in a statutory provision, though generally regarded as mandatory, does not have

a fixed or inflexible meaning and may, in fact, be construed as meaning 'may'

depending on the legislative intent. [Citations.] And the word 'shall,' in

construing election statutes, has been held directory rather than mandatory in a

variety of cases."); Glasco Electric Co. v. Department of Revenue, 87 Ill. App.

23
 Nos. 1-14-2618, 14-3062 (cons.)

3d 1070, 1073 (1980) ("[W]e consider the trend to construe the word 'shall' as

not being absolutely mandatory to be significant.").

¶ 69 Thus, insofar as may be practicable, section 10-9 applies to the case at

bar, and it provides that a "municipal" electoral board "shall be composed of

*** the president of the board of trustees" of the village, the "town clerk," and

"one member of the *** board of trustees *** [who] has served the greatest

number of years as a member" of the board of trustees." Pub. Act 98-115 (eff.

July 29, 2013).2

¶ 70 In the case at bar, these three individuals are: (1) the village president,

defendant Barrett F. Pedersen; (2) the village clerk, Tommy Thomson, and (3) a

village trustee, defendant John C. Johnson. Plaintiff seeks the disqualification

of all three members.

¶ 71 Section 10-9 provides for disqualification on the following ground:

"In the event that any member of the appropriate board is a candidate for

the office with relation to which the objector's petition is filed, he shall

not be able to serve on that board and shall not act as a member of the

board ***." Pub. Act 98-115 (eff. July 29, 2013).

2
Subsection 3 of section 10-9 dictates the composition of "municipal" electoral
boards, and the definitions section of the Code defines the word "municipality" to
include a "village" (10 ILCS 5/1-3 (West 2012)), such as the Village of Franklin
Park.
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 Nos. 1-14-2618, 14-3062 (cons.)

¶ 72 The Code does not define the phrase "in relation to" quoted above. Pub.

Act 98-115 (eff. July 29, 2013). When a statute or code fails to define a word

or phrase, then it is the job of the courts to ascertain its meaning. Brandt

Construction Co. v. Ludwig, 376 Ill. App. 3d 94, 104-05 (2007) (" 'The

province of statutory interpretation belongs specifically to the courts, which

have their own expertise in statutory construction.' " (quoting Board of Trustees

of Addison Fire Protection District No. 1 Pension Fund, 241 Ill. App. 3d 873,

884 (1993))).

¶ 73 The Code then specifies who the substitute is, if an electoral board

member is disqualified. Pub. Act 98-115 (eff. July 29, 2013). However, if the

vacancies cannot be filled pursuant to section 10-9, then the Code provides that

the Chief Judge shall appoint public members. Pub. Act 98-115 (eff. July 29,

2013).

¶ 74 Regarding public members, section 10-9 provides:

"Any vacancies on an electoral board not otherwise filled pursuant to

this Section shall be filled by public members appointed by the Chief

Judge of the Circuit Court for the county wherein the electoral board

hearing is being held upon notification to the Chief Judge of such

vacancies. The Chief Judge shall be so notified by a member of the

electoral board or the officer or board with whom the objector's petition

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 Nos. 1-14-2618, 14-3062 (cons.)

was filed. In the event that none of the individuals designated by this

Section to serve on the electoral board are eligible, the chairman of an

electoral board shall be designated by the Chief Judge." Pub. Act 98-115

(eff. July 29, 2013).

¶ 75 In the case at bar, plaintiff seeks the appointment of public members by

the Chief Judge pursuant to the above-quoted section. Although the section

quoted above provides for notification of the Chief Judge "by a member of the

electoral board" (Pub. Act 98-115 (eff. July 29, 2013)), it does not state what

happens when every member of the board is not "eligible to serve on that

board" because his or her candidacy is in "relation to" the objector's petition.

Pub. Act 98-115 (eff. July 29, 2013) (appearing earlier in the same section).

¶ 76 IV. General Order No. 21

¶ 77 Pursuant to section 10-9 of the Code, the Chief Judge of the circuit court

of Cook County issued "General Order No. 21 – Electoral Boards." Cook Co.

Cir. Ct. G.O. 21 (Feb. 1, 2005). The chief judge of each circuit is permitted to

issue "general orders" by Illinois Supreme Court Rule 21(c), which states: "The

chief judge of each circuit may enter general orders in the exercise of his or her

general administrative authority, including orders providing for assignment of

judges, general or specialized divisions, and times and places of holding court."

Ill. S. Ct. R. 21(c) (eff. Dec. 1, 2008).

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 Nos. 1-14-2618, 14-3062 (cons.)

¶ 78 General Order No. 21 states: "The following procedures shall govern the

nomination by the Chief Judge of a public member of an electoral board

pursuant to Section 10-9 of the Election Code." Cook Co. Cir. Ct. G.O. 21

(Feb. 1, 2005).

¶ 79 The order provides that, in addition to a member of the electoral board, "a

party to a case before the board" may also "notify the Chief Judge of the need to

appoint a public member," which is what occurred in the case at bar. Cook Co.

Cir. Ct. G.O. 21 (Feb. 1, 2005). The notification must be in a signed writing

and may be in the form of a letter, which it was in the case at bar.

¶ 80 The order discusses grounds for disqualification as follows:

"Members of an electoral board must be disqualified on due process

grounds if they have a personal or direct pecuniary interest in the

outcome of a case or if one of the members would properly be called as a

necessary witness in a case and therefore required to judge his or her own

testimony. However, electoral board members do not have a

disqualifying interest because they may be political allies or opponents of

a party in a case or merely because they are familiar with the facts of the

case. Neither may a statutory member cause a vacancy to be filled by

this General Order by a personal preference or convenience of that

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 Nos. 1-14-2618, 14-3062 (cons.)

statutory member not to sit or merely because a party has requested such

disqualification." Cook Co. Cir. Ct. G.O. 21 (Feb. 1, 2005).

¶ 81 The above provision could be interpreted as providing additional grounds

for disqualification not found in the Code, or as simply interpreting the statutory

phrase "in relation to." Pub. Act 98-115 (eff. July 29, 2013). However, we are

not called upon to decide this issue in the case at bar, since the statutory

disqualification applies here.

¶ 82 V. "In Relation To"

¶ 83 In this appeal, the objectors did not discuss in their brief whether the

three existing members of the board were statutorily barred from reviewing the

objectors' petition. However, the board did address the issue.

¶ 84 Zurek had asserted in his opening appellate brief that this "situation is no

different than if petitioner had been running for a township office and his

nominating petition were before the Electoral Board," and cited in support

Anderson v. McHenry Township, 289 Ill. App. 3d 830 (1997). He further argued

that the board's assertion that the Code provided no mechanism for recusal was

false and cited in support section 10-9 of the Code which instructs the chief

judge to appoint public members (Pub. Act 98-115 (eff. July 29, 2013)). See

Kaemmerer, 333 Ill. App. 3d at 960 ("each member of the Electoral Board

whose opponent was being challenged should have recused himself from all

28
 Nos. 1-14-2618, 14-3062 (cons.)

electoral challenges at issue"); Girot v. Keith, 212 Ill. 2d 372, 378 (2004) ("we

agree with Kaemmerer"). For the following reasons, we agree.

¶ 85 As discussed above, the Code provides that an electoral board member

may not serve on the board if he or she is "a candidate for the office with

relation to which the objector's petition is filed." Pub. Act 98-115 (eff. July 29,

2013). The three members of the board did not deny in their findings and

decision that they are candidates for re-election. Thus, they are, quite literally,

"candidate[s] for the office with relation to which the objector[s'] petition is

filed."

¶ 86 The appellate court in Anderson interpreted the exact same statutory

section with respect to an almost identical issue. Anderson, 289 Ill. App. 3d at

833. In Anderson, the petitioner submitted a referendum question to dissolve

McHenry Township. Anderson, 289 Ill. App. 3d at 831. Since the three

members of the electoral board were all township officials, the referendum

meant that all three would lose their township jobs. Anderson, 289 Ill. App. 3d

at 831. The appellate court held that section 10-9 of the Code "should have

been used to excuse the members of the Electoral Board and to appoint

disinterested members to hear the objections." Anderson, 289 Ill. App. 3d at

833. The court reasoned that this "situation is no different than if petitioner had

been running for a township office and his nominating petition were before the

29
 Nos. 1-14-2618, 14-3062 (cons.)

Electoral Board," since his referendum question represented a direct challenge

to the board itself. Anderson, 289 Ill. App. 3d at 833.

¶ 87 The court in Anderson found that the board members of McHenry Township

had a pecuniary/financial interest in the outcome since they were salaried and

would face a loss of income if the township was dissolved. The court found that

the electoral board members should have been excused and disinterested

members appointed when the petitioner's referendum constituted a direct

challenge to each member's position and continued employment with McHenry

Township. Anderson, 289 Ill. App. 3d at 833.

¶ 88 In the case at bar, Zurek's referendum question represents an even more

direct challenge to the board itself than in Anderson. Based on Anderson and

the unambiguous language of the statute itself, we conclude that Zurek's

question is in "relation to" the board members' candidacy for the very offices

which were specifically named in his question. See Pub. Act 98-115 (eff. July

29, 2013). Thus, as in Anderson, the board members "should have been"

replaced by public members, as specified in section 10-9 of the Code (Pub. Act

98-115 (eff. July 29, 2013)). Anderson, 289 Ill. App. 3d at 833.

¶ 89 VI. Issue Not Before Us

¶ 90 The one issue not presently before this court is: whether Zurek's

objections bar Godlewski's and Petersen's objection petition; and, if they do not,

30
 Nos. 1-14-2618, 14-3062 (cons.)

whether the objections of Godlewski and Petersen bar Zurek's proposed

referendum question from being placed on the ballot in November 2014.

¶ 91 That issue is not before us. The Code sets forth a specific process for

reviewing objections, even in cases like this one when existing electoral board

members are not "eligible to serve on that board" (Pub. Act 98-115 (eff. July

29, 2013)). The process specified by the Code is review by substitute members.

Pub. Act 98-115 (eff. July 29, 2013). See also Girot, 212 Ill. 2d at 378. In

Girot, our supreme court found that a conflict requiring a recusal of a board

member can arise where an unacceptable risk of bias is present. In this case, in

addition to the statutory violation, it can be argued that since the board

members, all salaried employees of Franklin Park, have a possible financial or

pecuniary interest in whether the referendum is placed on the ballot, there is

also an unacceptable risk of bias. Where there is an unacceptable risk of bias

present, the petitioner's right to a fair and impartial hearing is lost.

¶ 92 Thus, Godlewski's, Petersen's and Zurek's objections should be reviewed

first by a substituted board, as the Code expressly provides; and that is exactly

what the appellate court ordered when previously faced with this issue.

¶ 93 In both Kaemmerer v. St. Clair County Electoral Board, 333 Ill. App. 3d

956, 960 (2002), and Anderson v. McHenry Township, 289 Ill. App. 3d 830,

834 (1997), the appellate court concluded that the electoral board was

31
 Nos. 1-14-2618, 14-3062 (cons.)

improperly constituted, as we do in the case at bar. Following that conclusion,

the Kaemmerer court held: "Because the Electoral Board was improperly

constituted its decisions must be vacated and the objections must be heard and

considered by a properly constituted board." Kaemmerer, 333 Ill. App. 3d at

961. See also Anderson, 289 Ill. App. 3d at 834. The court reasoned: "Just as

with the circuit court, our jurisdiction is not original; it is limited and derivative.

Before this court can act, there must be a decision from a validly constituted

board followed by a review by and an order of the circuit court in regard to that

decsion." Kaemmerer, 333 Ill. App. 3d at 961. See also Anderson, 289 Ill. App.

3d at 834.

¶ 94 The Kaemmerer court held that there were "material issues of fact that

must be decided by the appropriate hearing body." Kaemmerer, 333 Ill. App.

3d at 961.3 See also Anderson, 289 Ill. App. 3d (the petitioner who had

submitted the referendum question had countered his objectors with factual

allegations, such as that the electoral board had "illegally sampled the

unregistered voter cards"). Similarly, in the case at bar, there are material issues

of fact since Zurek has made factual allegations, such as that the objections to

his petition are merely hypothetical and that the objectors were not legal voters.
3
The Kaemmerer opinion does not state what the "material issues of fact" are.
Kaemmerer, 333 Ill. App. 3d at 961. The opinion only states that there were
"objections to the candidates' nominating papers." Kaemmerer, 333 Ill. App. 3d at
957.
32
 Nos. 1-14-2618, 14-3062 (cons.)

¶ 95 Thus, the main issue before us presently is whether the three current

members of the Franklin Park Electoral Board should have been replaced by

public members for the purpose of reviewing the objections and, as we

concluded above, they should have been. Anderson, 289 Ill. App. 3d at 833.

¶ 96 VII. Public Interest Exception to the Mootness Doctrine

¶ 97 Since it is already Election Day, the Chief Judge cannot appoint public

members and the newly constituted board cannot then review the objections in

time to place Zurek's proposed referendum question on the ballot for the

November 4, 2014, general election. The Election Code provides that "notice

of public questions shall be required" not "less than 10 days before the date of a

regular election". 10 ILCS 5/12-5 (West 2012). See also 10 ILCS 5/28-5 (West

2012) ("Not less than 68 days before a regularly scheduled election, each local

election official shall certify the public questions to be submitted to the voters

of or within the political subdivision at that election which have been initiated

by petitions filed in his office."). We must therefore consider whether the

question before us has become moot.

¶ 98 In his notice of appeal, Zurek asked us specifically to consider whether

we should decide this appeal pursuant to the public interest exception to the

mootness doctrine, even if its timing rendered it otherwise moot. We agree that

the public interest exception applies. As the Anderson court concluded when

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 Nos. 1-14-2618, 14-3062 (cons.)

considering a virtually identical issue, "[t]his matter clearly falls under the

public interest exception to the mootness doctrine, in that it presents an

important public issue, evasive of review and capable of repetition, which,

because of the disparate resolutions by electoral boards of similar issues,

requires authoritative guidance." Anderson, 289 Ill. App. 3d at 832. See also

Girot, 212 Ill. 2d at 382-83 (deciding to review an election question pursuant to

the public interest exception); Bettis, 2013 IL App (4th) 130145, ¶ 27 (same).

¶ 99 VIII. Remand for Further Proceedings

¶ 100 When Zurek petitioned the circuit court for judicial review (10 ILCS

5/10-10.1 (West 2012)), his requested relief included that, if it should "be

rendered impossible for the term limit referendum to be included on the

November 4, 2014 general election ballot then the court should enter an order

directing the Cook County Clerk to include the term limit referendum on the

ballot for the next scheduled general election."

¶ 101 In both Kaemmerer, 333 Ill. App. 3d at 960, and Anderson, 289 Ill. App.

3d at 834, after concluding that the electoral board was improperly constituted

and that the issue should be reviewed first by a newly constituted board, the

appellate court remanded to allow that process to happen.

¶ 102 In Kaemmerer, the appellate court issued the following ruling: "we

remand this case to the Electoral Board for a hearing de novo before an

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 Nos. 1-14-2618, 14-3062 (cons.)

Electoral Board composed of impartial members, and we direct the chief judge

of the *** circuit court to appoint replacement members to the Electoral Board

pursuant to section 10-9(6) of the Code. The chief judge and the Electoral

Board shall each act at the earliest practicable date to ensure a timely

resolution." Kaemmerer, 333 Ill. App. 3d at 961.

¶ 103 Similarly, in Anderson, 289 Ill. App. 3d at 834, the appellate court

"remand[ed] for a hearing de novo before an electoral board composed of

impartial members" and "direct[ed] the Chief Judge of the circuit court *** to

appoint replacement members to the Electoral Board pursuant to section 10-9 of

the Election Code [Citation]." The court further held: "If the decision of the

newly constituted Electoral Board results in the need for a referendum, the

referendum shall be placed on the ballot of the first election thereafter which

meets all the relevant statutory requirements of the Election Code." Anderson,

289 Ill. App. 3d at 834. The holding in Anderson was cited with approval by

our supreme court in Girot, 212 Ill. 2d at 378.

¶ 104 In the case at bar, we similarly remand with directions, as we instruct

below.

¶ 105 CONCLUSION

¶ 106 In sum, we conclude: (1) that the board had standing to file a brief as a

nominal defendant; (2) that the three members of the board be replaced by

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 Nos. 1-14-2618, 14-3062 (cons.)

public members for consideration of the referendum question since it is not

"practicable" for them to rule on a question that is "in relation" to their own

candidacy; and (3) that, even though consideration of the referendum question,

the objectors' petition and the objections to the objectors' petition cannot be

completed in time to place the question on the November 4, 2014, ballot, we

may still consider the issue pursuant to the public interest exception to the

mootness doctrine.

¶ 107 For the foregoing reasons, we vacate the September 17, 2014, decision of

the electoral board and reverse the August 28, 2014, order and the October 7,

2014, order of the trial court. As the appellate court did in both Anderson and

Kaemmerer, we remand for a hearing de novo before an electoral board

composed of impartial members. We direct the Chief Judge of the circuit court

of Cook County to appoint replacement members to the Franklin Park Electoral

Board pursuant to section 10-9 of the Election Code. If the decision of the

newly constituted Franklin Park Electoral Board results in the need for a

referendum, the referendum shall be placed on the ballot of the first election

thereafter which meets all the relevant statutory requirements of the Election

Code. The Chief Judge and the newly constituted Franklin Park Electoral

Board shall each act at the earliest practicable date to ensure a timely resolution

of this issue.

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 Nos. 1-14-2618, 14-3062 (cons.)

¶ 108 Reversed and remanded with directions.

37