NO. 5-10-0265
N O T IC E
Decision filed 08/19/10, corrected
IN THE
09/16/10. The text of this decision
may be changed or corre cted prior to
APPELLATE COURT OF ILLINOIS
the filing of a Petition for Rehearing or
the disposition of the same.
FIFTH DISTRICT
________________________________________________________________________
WHITNEY WISNASKY-BETTORF, ) Appeal from the
) Circuit Court of
Petitioner-Appellant, ) St. Clair County.
)
v. ) No. 10-MR-123
)
PEGGY PIERCE, Objector, ST. CLAIR )
COUNTY ELECTORAL BOARD, BOB )
DELANEY, Chairman, ROBERT HAIDA, )
Member, and CHARLES SUAREZ, Member, ) Honorable
) Andrew J. Gleeson,
Respondents-Appellees. ) Judge, presiding.
________________________________________________________________________
JUSTICE WEXSTTEN delivered the opinion of the court:
This case requires us to construe section 7-61 of the Illinois Election Code (the Code)
(10 ILCS 5/7-61 (West Supp. 2009)). Specifically, we must determine whether an
established political party must file a resolution pursuant to that section in order to fill a
vacancy in nomination when no candidate appeared on the primary ballot for that party and
no write-in candidate was nominated.
The petitioner, Whitney Wisnasky-Bettorf, was nominated by the Republican Party
for the office of board of review member following the general primary elections where no
Republican Party candidate's name was printed on the ballot and no candidate was nominated
as a write-in for that office. An objection was made by Peggy Pierce (the objector) to the
timeliness of the petitioner's candidacy. The St. Clair County Electoral Board (the board)
sustained that objection and removed the petitioner's name from the ballot for the general
election to be held on November 2, 2010, and the St. Clair County circuit court upheld the
board's decision. The petitioner moved for and was granted an expedited appeal. On August
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12, 2010, we entered an order affirming the circuit court in this matter and stated that our
opinion would follow.
BACKGROUND
On February 2, 2010, the three established political parties in Illinois–the Republican
Party, the Green Party, and the Democratic Party–held general primary elections to determine
candidates for the general election to be held on November 2, 2010. No candidate's name
was printed on the Republican Party ballot in St. Clair County for the office of board of
review member, and no candidate was nominated as a write-in for that office. Accordingly,
on March 25, 2010, the St. Clair County central committee of the Republican Party (the
committee) held a meeting at which it passed a motion designating the petitioner as the
appointee for candidacy for the office of board of review member. On April 1, 2010, the
committee filed a "resolution/certificate of appointment" with the county clerk of St. Clair
County, indicating that the executive committee of the Republican Party in St. Clair County
had voted to nominate the petitioner for the office of board of review member as required by
section 7-61 or section 8-17 of the Code (10 ILCS 5/8-17 (West 2008)).
On April 26, 2010, the objector filed a verified objector's petition and a memorandum
in support thereof, requesting that the petitioner's name not appear on the ballot for election
to the office of board of review member because the resolution was not filed within three
days as required by section 7-61. On April 30, 2010, the board convened to pass upon the
objector's petition. On May 3, 2010, the board entered an order, dated April 30, 2010,
allowing the objection and ordering the petitioner's name removed from the ballot for the
general election to be held on November 2, 2010. The petitioner sought timely judicial
review, and following a hearing, the circuit court affirmed the decision of the board. This
timely appeal followed.
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ANALYSIS
We begin by addressing the pending motions filed with this court. The objector filed
a motion to strike and the petitioner filed a motion for sanctions. On July 21, 2010, we
entered an order taking those motions with the case. We now deny both motions as moot,
finding that all the facts necessary to our disposition are contained within the common law
record that the objector concedes was properly filed. On July 22, 2010, the petitioner filed
a motion to file affidavits as exhibits to petitioner's response to respondent's motion to strike.
On July 23, 2010, the petitioner filed a motion for leave to file a reply to respondent's
response to motion for sanctions, along with a reply to the objector's motion for sanctions.
We now grant those motions.
We now turn to our review of the board's decision. Factual findings made by an
electoral board will not be disturbed unless they are against the manifest weight of the
evidence. Girot v. Keith, 212 Ill. 2d 372, 378-79 (2004). We are not bound, however, by the
board's interpretation of a statute. King v. Justice Party, 284 Ill. App. 3d 886, 888 (1996).
Statutory interpretation is a matter of law subject to de novo review. Lockhart v. Cook
County Officers Electoral Board, 328 Ill. App. 3d 838, 841 (2002).
"The primary rule of statutory interpretation, to which all other rules are subordinate,
is that a court should ascertain and give effect to the intent of the legislature." Bonaguro v.
County Officers Electoral Board, 158 Ill. 2d 391, 397 (1994). "The legislative intent should
be sought primarily from the language used in the statute." Bonaguro, 158 Ill. 2d at 397.
"Also, the statute should be evaluated as a whole; each provision should be construed in
connection with every other section." Bonaguro, 158 Ill. 2d at 397. "Statutes should be
construed, if possible, so that no term is rendered superfluous or meaningless." Bonaguro,
158 Ill. 2d at 397.
Section 7-61 of the Election Code was amended effective January 1, 2010. Prior to
3
January 1, 2010, section 7-61 provided as follows:
"Whenever a special election is necessary the provisions of this Article are
applicable to the nomination of candidates to be voted for at such special election.
In cases where a primary election is required the officer or board or
commission whose duty it is under the provisions of this Act relating to general
elections to call an election[] shall fix a date for the primary for the nomination of
candidates to be voted for at such special election. Notice of such primary shall be
given at least 15 days prior to the maximum time provided for the filing of petitions
for such a primary as provided in Section 7-12.
Any vacancy in nomination under the provisions of this [a]rticle 7 occurring
on or after the primary and prior to certification of candidates by the certifying board
or officer[] must be filled prior to the date of certification. Any vacancy in
nomination occurring after certification but prior to 15 days before the general
election shall be filled within 8 days after the event creating the vacancy. The
resolution filling the vacancy shall be sent by U.S. mail or personal delivery to the
certifying officer or board within 3 days of the action by which the vacancy was filled;
provided, if such resolution is sent by mail and the U.S. postmark on the envelope
containing such resolution is dated prior to the expiration of such 3[-]day limit, the
resolution shall be deemed filed within such 3[-]day limit. Failure to so transmit the
resolution within the time specified in this [s]ection shall authorize the certifying
officer or board to certify the original candidate. Vacancies shall be filled by the
officers of a local municipal or township political party as specified in subsection (h)
of [s]ection 7-8, other than a statewide political party, that is established only within
a municipality or township and the managing committee (or legislative committee in
case of candidate for State Senator or representative committee in the case of a
4
candidate for State Representative in the General Assembly or State central committee
in the case of a candidate for statewide office, including but not limited to the office
of United States Senator) of the respective political party for the territorial area in
which such vacancy occurs.
The resolution to fill a vacancy in nomination shall be duly acknowledged
before an officer qualified to take acknowledgments of deeds and shall include, upon
its face, the following information:
(a) the name of the original nominee and the office vacated;
(b) the date on which the vacancy occurred;
(c) the name and address of the nominee selected to fill the vacancy and the
date of selection.
The resolution to fill a vacancy in nomination shall be accompanied by a
Statement of Candidacy, as prescribed in [s]ection 7-10, completed by the selected
nominee and a receipt indicating that such nominee has filed a statement of economic
interests as required by the Illinois Governmental Ethics Act.
The provisions of [s]ection 10-8 through 10-10.1 relating to objections to
certificates of nomination and nomination papers, hearings on objections, and judicial
review[] shall apply to and govern objections to resolutions for filling a vacancy in
nomination.
Any vacancy in nomination occurring 15 days or less before the consolidated
election or the general election shall not be filled. In this event, the certification of
the original candidate shall stand and his name shall appear on the official ballot to
be voted at the general election.
A vacancy in nomination occurs when a candidate who has been nominated
under the provisions of this [a]rticle 7 dies before the election (whether death occurs
5
prior to, on[,] or after the day of the primary)[] or declines the nomination; provided
that nominations may become vacant for other reasons.
If the name of no established political party candidate was printed on the
consolidated primary ballot for a particular office and if no person was nominated as
a write-in candidate for such office, a vacancy in nomination shall be created which
may be filled in accordance with the requirements of this [s]ection. If the name of no
established political party candidate was printed on the general primary ballot for a
particular office and if no person was nominated as a write-in candidate for such
office, a vacancy in nomination shall be created, but no candidate of the party for the
office shall be listed on the ballot at the general election unless such vacancy is filled
in accordance with the requirements of this [s]ection within 60 days after the date of
the general primary.
A candidate for whom a nomination paper has been filed as a partisan
candidate at a primary election, and who is defeated for his or her nomination at such
primary election, is ineligible to be listed on the ballot at that general or consolidated
election as a candidate of another political party.
A candidate seeking election to an office for which candidates of political
parties are nominated by caucus who is a participant in the caucus and who is defeated
for his or her nomination at such caucus[] is ineligible to be listed on the ballot at that
general or consolidated election as a candidate of another political party.
In the proceedings to nominate a candidate to fill a vacancy or to fill a vacancy
in the nomination, each precinct, township, ward, county[,] or congressional district,
as the case may be, shall[,] through its representative on such central or managing
committee, be entitled to one vote for each ballot voted in such precinct, township,
ward, county[,] or congressional district, as the case may be, by the primary electors
6
of its party at the primary election immediately preceding the meeting at which such
vacancy is to be filled.
For purposes of this [s]ection, the words 'certify' and 'certification' shall refer
to the act of officially declaring the names of candidates entitled to be printed upon
the official ballot at an election and directing election authorities to place the names
of such candidates upon the official ballot. 'Certifying officers or boards' shall refer
to the local election official, election authority[,] or the State Board of Elections, as
the case may be, with whom nomination papers, including certificates of nomination
and resolutions to fill vacancies in nomination, are filed and whose duty it is to
'certify' candidates." 10 ILCS 5/7-61 (West 2008).
In Forcade-Osborn v. Madison County Electoral Board, 334 Ill. App. 3d 756 (2002),
this court, albeit in dicta, addressed circumstances very similar to the case at hand. In
Forcade-Osborn, the petitioner was slated by the Republican Party to fill a vacancy for the
office of county treasurer in Madison County when no one was nominated in the March
primary to serve as the Republican Party candidate. The Madison County Republican central
committee formed a nominating committee to select a person to the fill the vacancy in
nomination, and on May 13, 2002, the nominating committee met and selected the petitioner
to fill the vacancy in nomination. On May 20, 2002, the petitioner filed her certificate of
nomination, statement of candidacy, statement of economic interests, and loyalty oath. On
May 24, 2002, however, the Democratic Party candidate for county treasurer filed an
objection to the petitioner's nominating papers on the grounds that they were not properly and
timely filed. The Madison County electoral board struck the petitioner's name from the
election ballot, finding that section 7-61 required the nominating committee to have filed or
mailed the certification of nomination within three days of its May 13, 2002, meeting. The
circuit court of Madison County upheld the board's rulings, and the petitioner appealed.
7
On appeal, the court dismissed the petitioner's appeal for a lack of subject matter
jurisdiction but noted in dicta that even if it did have jurisdiction, "the result would be no
different, in that the determination of the [b]oard would have to be affirmed on the merits."
Forcade-Osborn, 334 Ill. App. 3d at 759. The court, in interpreting section 7-61, found that
the statute clearly imposed "a deadline for the transmission of a certification of nomination
by the nominating authorities to the certifying officer." Forcade-Osborn, 334 Ill. App. 3d
at 759. The court found that deadline to be May 13, 2002, three days from the date the action
was taken to fill the vacancy in nomination. Forcade-Osborn, 334 Ill. App. 3d at 759.
"Having failed to meet the deadline, [the] petitioner lost the right to have her name placed
on the election ballot as a candidate for the office of county treasurer." Forcade-Osborn, 334
Ill. App. 3d at 759.
Public Act 96-809 and Public Act 96-848 became effective, January 1, 2010, in which
the legislature amended section 7-61 of the Code. The amendments are illustrated as follows,
with the deleted provisions struck out and the added provisions in italics:
"If the name of no established political party candidate was printed on the
consolidated primary ballot for a particular office and if no person was nominated as
a write-in candidate for such office, a vacancy in nomination shall be created which
may be filled in accordance with the requirements of this [s]ection. If the name of no
established political party candidate was printed on the general primary ballot for a
particular office and if no person was nominated as a write-in candidate for such
office, a vacancy in nomination shall be [created which may be filled in accordance
with the requirements of this [s]ection. If the name of no established political party
candidate was printed on the general primary ballot for a particular office and if no
person was nominated as a write-in candidate for such office, a vacancy in nomination
shall be created, but no candidate of the party for the office shall be listed on the
8
ballot at the general election unless such vacancy is filled in accordance with the
requirements of this [s]ection within 60 days after the date of the general primary]
filled only by a person designated by the appropriate committee of the political party
and only if that designated person files nominating petitions with the number of
signatures required for an established party candidate for that office within 75 days
after the day of the general primary. The circulation period for those petitions begins
on the day the appropriate committee designates that person. The person shall file
his or her nominating petitions, statements of candidacy, notice of appointment by the
appropriate committee, and receipt of filing his or her statement of economic interests
together. These documents shall be filed at the same location as provided in [s]ection
7-12. The electoral boards having jurisdiction under [s]ection 10-9 to hear and pass
upon objections to nominating petitions also shall hear and pass upon objections to
nomination petitions filed by candidates under this paragraph." 10 ILCS 5/7-61
(West Supp. 2009).
At issue here is whether by amending section 7-61 of the Code, the legislature
intended to remove the other requirements of section 7-61, i.e., the resolution and three-day-
filing requirements. We fail to see that intention.
It seems clear that by making the amendments it made, the legislature intended to
require a candidate who was not on the ballot and was not a write-in candidate to get
"grassroots" support to become a candidate for the general election. The amendments did
not change, however, the requirements of the political party, only the requirements of the
candidate. Moreover, the legislature did not remove or change the requirements of the first
sentence of the paragraph amended: "If the name of no established political party candidate
was printed on the consolidated primary ballot for a particular office and if no person was
nominated as a write-in candidate for such office, a vacancy in nomination shall be created
9
which may be filled in accordance with the requirements of this Section." (Emphasis added.)
10 ILCS 5/7-61 (West Supp. 2009). We have interpreted this provision in the past as
requiring a petitioner who was not on the ballot at the primary and who was not written-in
to comply with all of the provisions in section 7-61, specifically, the requirement that the
resolution filling the vacancy be transmitted to the certifying officer or board within three
days of the action by which the vacancy was filled. See Forcade-Osborn, 334 Ill. App. 3d
at 759; 10 ILCS 5/7-61 (West 2008). Indeed, if no resolution was required, it begs the
question of why the committee filed it at all, albeit late.
Moreover, other decisions of our court have construed the situation at hand–"If the
name of no established political party candidate was printed on the consolidated primary
ballot for a particular office and if no person was nominated as a write-in candidate for such
office ***" (10 ILCS 5/7-61 (West 2008))–as requiring compliance with the resolution
requirements of section 7-61. In re Objection of McSparin, 352 Ill. App. 3d 352, 357-58
(2004) (finding that the provision of section 7-61 of the Code requiring a resolution to
specify the date upon which an individual was selected to fill a vacancy in nomination to be
mandatory); Siegel v. Lake County Officers Electoral Board, 385 Ill. App. 3d 452, 459
(2008) (holding that "the resolution must include on its face the date the nominee was
selected to fill a vacancy in nomination"). Presumably, the legislature was aware of these
decisions when it amended the statute and did not expressly remove the resolution and three-
day filing requirements. See People v. De La Paz, 204 Ill. 2d 426, 433 (2003) (" ' "Where
statutes are enacted after judicial opinions are published, it must be presumed that the
legislature acted with knowledge of the prevailing case law" ' " (quoting Burrell v. Southern
Truss, 176 Ill. 2d 171, 176 (1997) (quoting People v. Hickman, 163 Ill. 2d 250, 262
(1994)))). Had it intended such a result, it could have simply deleted the language stating,
"a vacancy in nomination shall be created which may be filled in accordance with the
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requirements of this [s]ection" (emphasis added) (10 ILCS 5/7-61 (West Supp. 2009)). It
did not and we refuse to render that provision meaningless.
The dissent parses the statute into separate paragraphs, contending that certain
paragraphs only apply to certain scenarios. We note that section 7-61 is a single section in
a comprehensive election code consisting of all unnumbered paragraphs. If the legislature
had intended to divide the statute into separate sections, it certainly could have done so.
Nevertheless, the dissent contends that the third unnumbered paragraph does not apply to the
situation at hand because "section 7-61 *** contemplates two distinct types of vacancies in
nomination that may occur and provides the means for filling the vacancies in each
situation." Slip op. at 16. While we agree with the dissent that section 7-61 does
contemplate two distinct types of vacancies, i.e., (1) the type of vacancy defined in the eighth
unnumbered paragraph–"A vacancy in nomination occurs when a candidate who has been
nominated under the provisions of this [a]rticle 7 dies before the election (whether death
occurs prior to, on[,] or after the day of the primary)[] or declines the nomination; provided
that nominations may become vacant for other reasons," and (2) the type of vacancy set forth
in the ninth unnumbered paragraph–"If the name of no established political party candidate
was printed on the consolidated primary ballot for a particular office and if no person was
nominated as a write-in candidate for such office, a vacancy in nomination shall be created
which may be filled in accordance with the requirements of this [s]ection," we do not agree
that the provisions set forth before the ninth unnumbered paragraph do not apply to the type
of vacancy set forth in that paragraph. 10 ILCS 5/7-61 (W est Supp. 2009). The statute
clearly states that the vacancy "may be filled in accordance with the requirements of this
[s]ection," meaning all of section 7-61. 10 ILCS 5/7-61 (West Supp. 2009). That is how we
have construed this provision in the past, the legislature did not remove or alter this provision
when it amended the statute, and it is further supported by the first sentence of the third
11
unnumbered paragraph which refers to "[a]ny vacancy in nomination under the provisions
of this [a]rticle," not any unnumbered subparagraph. (Emphasis added.) 10 ILCS 5/7-61
(West Supp. 2009).
While we find no ambiguity in section 7-61, we find further support for our
interpretation in the Illinois House debates. See County of Du Page v. Illinois Labor
Relations Board, 231 Ill. 2d 593, 604 (2008). Having reviewed the Illinois House debates
regarding the amendments to section 7-61, we have found no indication that the legislature
intended to remove the resolution and three-day filing requirements. Nor, as the dissent
contends, was there anything in the legislative debates that supports a "Situation A" or
"Situation B" scenario. Representative Fortner, the House sponsor of the bill, described the
purpose of the bill as follows:
"House Bill 723 would change the process by which we fill vacancies for the general
Primary. So, this would cover the case where you have a... a Primary where a major
Party failed to have a candidate qualify for the Primary ballot. Current law provides
that the Party can fill that vacancy up to 60 days after, and the only change this Bill
would make is to say that if they wish to so fill it, that person must still get signatures
just like the party would have had to get to qualify a candidate before the Primary."
(Emphasis added.) 96th Ill. Gen. Assem., House Proceedings, April 2, 2009, at 6
(statements of Representative Fortner).
"The way this Bill would do it, the Party chairs, the ones who would currently
do the slating, they can still do that slating. They would identify who their candidate
is. Then that candidate would proceed to get signatures." (Emphasis added.) 96th
Ill. Gen. Assem., House Proceedings, April 2, 2009, at 15 (statements of
Representative Fortner).
While the dissent contends that the words "notice of appointment" substitute for the filing
12
of a resolution, that is mere conjecture. Absolutely nothing in the legislative debates or the
language of the statute either before or after its amendment suggests this was the intent of
the legislature. There is nothing, as suggested by the dissent, "misguided" about this
interpretation of the statute. If the legislature, which we are not, wanted to remove the
resolution and three-day filing requirements, it could have easily done so. It did not. Thus,
it seems clear that the legislature contemplated that a political party would still be required
to first file a resolution naming its candidate, and then that candidate would be required to
file petitions.
We find that a resolution filling the vacancy in this case had to be sent by United
States mail or personal delivery to the certifying officer or board within three days of the
action filling the vacancy. Since this was not done, the petitioner's purported nomination
could not withstand a properly filed objection.
The petitioner next contends that the objector's objection was not filed in a timely
manner because it was not filed until April 26, 2010. The petitioner argues that any objection
to any resolution filed under section 7-61 was required to be filed "within 5 business days"
after the last day for filing the applicable resolution, which according to the petitioner would
have been April 5, 2010, five business days from March 29, 2010, the date the objector
contends was the deadline for the committee to file the resolution.
Section 7-61 of the Code provides as follows: "The provisions of [s]ection 10-8
through 10-10.1 relating to objections to certificates of nomination and nomination papers,
hearings on objections, and judicial review[] shall apply to and govern objections to
resolutions for filling a vacancy in nomination." 10 ILCS 5/7-61 (West Supp. 2009). Section
10-8 provides in relevant part as follows:
"Certificates of nomination and nomination papers, and petitions to submit
public questions to a referendum, being filed as required by this Code, and being in
13
apparent conformity with the provisions of this Act, shall be deemed to be valid
unless objection thereto is duly made in writing within 5 business days after the last
day for filing the certificate of nomination or nomination papers or petition for a
public question ***[.]
***
The provisions of this [s]ection and of [s]ections 10-9, 10-10[,] and 10-10.1
shall also apply to and govern objections to petitions for nomination filed under
[a]rticle 7 or [a]rticle 8 ***." 10 ILCS 5/10-8 (W est 2008).
Section 7-61 further provides in relevant part as follows:
"If the name of no established political party candidate was printed on the general
primary ballot for a particular office and if no person was nominated as a write-in
candidate for such office, a vacancy in nomination shall be filled only by a person
designated by the appropriate committee of the political party and only if that
designated person files nominating petitions with the number of signatures required
for an established party candidate for that office within 75 days after the day of the
general primary." 10 ILCS 5/7-61 (West Supp. 2009).
Here, the general primary was held on February 2, 2010. Thus, under section 7-61 the
last day the petitioner could have filed her nomination papers was Monday, April 19, 2010,
76 days after the general primary, since the seventy-fifth day fell on a Sunday. 10 ILCS 5/7-
61 (West Supp. 2009). Therefore, pursuant to section 10-8, the objector had until M onday,
April 26, 2010, to file her objection, seven days after the last day for filing nomination
papers, since the fifth and sixth days fell on a Saturday and Sunday, respectively. 10 ILCS
5/10-8 (West 2008); see Thomas v. Powell, 289 Ill. App. 3d 143, 147 (1997) (finding that the
board and the trial court lacked subject matter jurisdiction when the objection was not filed
within five days after the last day for filing nomination papers). In this case, the objection
14
was filed on April 26, 2010, "within 5 business days after the last day for filing" (10 ILCS
5/10-8 (West 2008)). Accordingly, the board and the trial court had subject matter
jurisdiction, and this argument fails.
CONCLUSION
For the foregoing reasons, we affirm the orders of the circuit court of St. Clair County
and the board.
Affirmed.
STEW ART, J., concurs.
JUSTICE SPOMER, dissenting:
I respectfully dissent. For the reasons that follow, I would reverse the decisions of the
circuit court and the board and remand with directions that the petitioner's name be placed
on the ballot for the November 2, 2010, general election.
I cannot agree with the majority that the General Assembly, when amending section
7-61 of the Code, intended to require the filing of a resolution to fill a vacancy in nomination
in a case such as this one, as opposed to one created after a primary election resulting in a
certified nominee. To the contrary, the amended portion of section 7-61 sets forth a separate
and distinct procedure for situations such as we have here and specifically substitutes a
"notice of appointment" for the filing of a resolution.
In support of her contention that a resolution was required, the objector relies upon
paragraph three of section 7-61 of the Code, which states as follows:
"Any vacancy in nomination under the provisions of this Article 7 occurring
on or after the primary and prior to certification of candidates by the certifying board
15
or officer[] must be filled prior to the date of certification. Any vacancy in
nomination occurring after certification but prior to 15 days before the general
election shall be filled within 8 days after the event creating the vacancy. The
resolution filling the vacancy shall be sent by U. S. mail or personal delivery to the
certifying officer or board within 3 days of the action by which the vacancy was filled;
provided, if such resolution is sent by mail and the U. S. postmark on the envelope
containing such resolution is dated prior to the expiration of such 3[-]day limit, the
resolution shall be deemed filed within such 3[-]day limit. Failure to so transmit the
resolution within the time specified in this Section shall authorize the certifying
officer or board to certify the original candidate. Vacancies shall be filled by the
officers of a local municipal or township political party as specified in subsection (h)
of Section 7-8, other than a statewide political party, that is established only within
a municipality or township and the managing committee (or legislative committee in
case of a candidate for State Senator or representative committee in the case of a
candidate for State Representative in the General Assembly or State central committee
in the case of a candidate for statewide office, including but not limited to the office
of United States Senator) of the respective political party for the territorial area in
which such vacancy occurs." 10 ILCS 5/7-61 (West Supp. 2009).
To determine whether paragraph three is in fact applicable to the present case, we
must construe the statute as written by the General Assembly. I agree with the majority that
a statute must be evaluated as a whole, with each provision construed in connection with
every other section, and so that no term is rendered superfluous or meaningless. See slip op.
at 3 (quoting Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 397 (1994)).
However, unlike the majority, I conclude that when paragraph three is read in light of the
other provisions of section 7-61, it is clear that the section as a whole contemplates two
16
distinct types of vacancies in nomination that may occur, and it provides the means for filling
the vacancies in each situation.1 Paragraph eight of the section states, "A vacancy in
nomination occurs when a candidate who has been nominated under the provisions of this
Article 7 dies before the election *** or declines the nomination; provided that nominations
may become vacant for other reasons." 10 ILCS 5/7-61 (West Supp. 2009). It is in the
above-described situation, which for ease of discussion I shall deem "Situation A," that
paragraphs three and four apply, for each paragraph clearly and unequivocally references the
"original" candidate or nominee. 10 ILCS 5/7-61 (West Supp. 2009). This is supported by
the fact that paragraph three provides, "Failure to so transmit the resolution within the time
specified in this Section shall authorize the certifying officer or board to certify the original
candidate." 10 ILCS 5/7-61 (West Supp. 2009). Thus, paragraph three clearly contemplates
the situation where there was an original candidate and that person either dies before the
election or declines the nomination. It does not, and by definition could not, apply to a
situation where there was no "original candidate," a fact the majority plainly and inexplicably
fails to address. In that situation, which exists in the case at bar, only paragraph nine applies.
Paragraph nine, which was amended by Public Act 96-809 and Public Act 96-848 and
became effective in its present form on January 1, 2010, states, "If the name of no established
political party candidate was printed on the consolidated primary ballot for a particular office
and if no person was nominated as a write-in candidate for such office, a vacancy in
nomination shall be created which may be filled in accordance with the requirements of this
1
Paragraph seven of the section contemplates a third type of vacancy in nomination:
one that occurs "15 days or less" before the election; however, paragraph seven states that
in those situations, the vacancy in nomination shall not be filled and "the certification of the
original candidate shall stand," a situation clearly not relevant to the case at bar. 10 ILCS
5/7-61 (West Supp. 2009).
17
Section." 10 ILCS 5/7-61 (West Supp. 2009). In that situation, which I shall deem
"Situation B," paragraph nine provides that the vacancy in nomination may be filled only
when the following three conditions are met: (1) the person to fill the vacancy in nomination
has been "designated by the appropriate committee of the political party" in question, (2) the
designated person obtains nominating petitions with the number of signatures required for
an established party candidate for that office, with the circulation period to begin "on the day
the appropriate committee designates that person," and (3) the designated person has filed,
together, the following required documents, within 75 days after the day of the general
primary: "his or her nominating petitions, statements of candidacy, notice of appointment by
the appropriate committee, and receipt of filing his or her statement of economic interests."
10 ILCS 5/7-61 (West Supp. 2009). Paragraph nine does not require the filing of a resolution
in Situation B; indeed, paragraph nine never uses the word "resolution" at all. In a situation
such as this one, where the General Assembly has clearly and unequivocally stated what
documents must be filed, I decline to read into that statement an additional, unlisted
requirement found in an entirely unrelated paragraph.
This is further supported by the amendments the legislature made to paragraph nine
of section 7-61. Previously, that section provided as follows:
"If the name of no established political party candidate was printed on the general
primary ballot for a particular office and if no person was nominated as a write-in
candidate for such office, a vacancy in nomination shall be created, but no candidate
of the party for the office shall be listed on the ballot at the general election unless
such vacancy is filled in accordance with the requirements of this Section within 60
days after the date of the general primary." 10 ILCS 5/7-61 (West 2008).
That section now, however, sets forth more specifically the requirements the candidate must
complete. See 10 ILCS 5/7-61 (West Supp. 2009). In the situation where there is no original
18
candidate on the ballot and no write-in, the candidate must now show "grassroots" support
by complying with the requirements in paragraph nine that were not previously included in
paragraph nine prior to the amendment. To hold otherwise would be clearly against the
legislative intent in making this amendment and against this state's position in favor of ballot
access for candidates running for public office. See Hossfeld v. Illinois State Board of
Elections, 398 Ill. App. 3d 737, 743 (2010), appeal allowed, 236 Ill. 2d 504 (2010); In re
Objection of McSparin, 352 Ill. App. 3d 352, 357 (2004); Zerante v. Bloom Township
Electoral Board, 287 Ill. App. 3d 976, 980 (1997).
A second glaring problem with the majority's misguided attempt to graft the content
of paragraph three into the requirements of paragraph nine is that when setting out the
requirement that a resolution pursuant to that paragraph be filed within three days of the
action taken to fill the vacancy, paragraph three specifically refers to the resolution as a
"resolution filling the vacancy." 10 ILCS 5/7-61 (W est Supp. 2009). In Situation A, to
which paragraph three applies, that would be true: the resolution would in fact fill the
vacancy. In Situation B, however, the vacancy is not filled by the resolution, even under the
scenario put forward by the majority: by the plain language of paragraph nine, the vacancy
is filled when the three conditions described above are met. This contradiction, which
renders the phrase "resolution filling the vacancy" in paragraph three superfluous,
meaningless, and in fact contradictory when applied to paragraph nine, is left unexplained
by the majority. Indeed, the resolution requirement itself is superfluous and meaningless
when applied to Situation B, because, as noted above, Situation B requires the "grassroots"
work of collecting petition signatures. It defies logic that in a situation where the candidate
has already received from the committee a notice of appointment and has gone on to collect
signatures, the committee would also be required to file a resolution. What, one might
rightfully ask, would be the point of that resolution? To the extent an argument could be
19
made that the filing of the resolution somehow provided "notice" to the public of the
committee's selection, that notice would provide no protection to the public, as it would not
prevent others from circulating petitions as well. Only the notice of appointment, which is
clearly and unequivocally required by paragraph nine to be filed, would provide that
protection and prevent unauthorized petitioners from appearing on the ballot, which is
probably why it, and not the resolution, is required by the amended Code.
In the case at bar, it was clearly Situation B, not Situation A, that occurred: as related
above, at the February 2, 2010, general primary election, no candidate's name was printed on
the Republican Party ballot in St. Clair County for the office of board of review member, and
no candidate was nominated as a write-in for that office. Accordingly, on March 25, 2010,
the committee held a meeting at which it passed a motion designating the petitioner as the
appointee for candidacy for the office of board of review member. Although on April 1,
2010, the committee filed a "resolution/certificate of appointment" with the clerk, stating that
the committee had designated the petitioner as its appointee, there was no requirement that
such a resolution be filed.2 Accordingly, an objection to the timeliness of the resolution does
not provide a legal basis by which to challenge the petitioner's candidacy, and the decisions
of the circuit court and the board should be reversed.
The majority relies upon judicial dictum found in this court's decision in Forcade-
Osborn v. Madison County Electoral Board, 334 Ill. App. 3d 756, 759 (2002). However,
Forcade-Osborn was decided prior to the amendment of paragraph nine, and whatever
2
The majority wonders why, if no resolution was required, the committee filed one.
Slip op. at 10. The answer, I suspect, is that the committee was acting out of an abundance
of caution, which is not surprising given the General Assembly's dubious record when it
comes to providing candidates and the voting public with an election code that is simple,
straightforward, and user-friendly.
20
persuasiveness our dicta might have once had is now eviscerated. Moreover, neither
Forcade-Osborn nor any other of the preamendment cases upon which the majority relies
dealt with the issue of whether a resolution was required in a situation such as this one, and
I question the relevance of any of the cases cited by the majority to the issue at hand.
However, although not controlling, two recent decisions from the Illinois State Board of
Elections do address the exact issue before us, and both decisions support my position rather
than the position taken by the majority. Jenkins v. Wojcik, Ill. St. Officers Electoral Bd. No.
10 SOEBGE 500 (June 7, 2010); Marquardt v. Grizzoffi, Ill. St. Officers Electoral Bd. No.
10 SOEBGE 101 (June 9, 2010).
Finally, although the majority finds "no indication" in the legislative debates that the
General Assembly "intended to remove the resolution and three-day filing requirements" (slip
op. at 12), I would note that there is also no indication that the General Assembly intended
to apply the paragraph three requirements to paragraph nine. In fact, the issue did not arise
in the debates, and the substance of the debates revolved around the number of signatures
required. No other requirements were debated. Representative Fortner's comments, quoted
by the majority (slip op. at 12), must be considered, if at all, in their proper context.
For the foregoing reasons, I respectfully dissent.
21
NO. 5-10-0265
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
WHITNEY WISNASKY-BETTORF, ) Appeal from the
) Circuit Court of
Petitioner-Appellant, ) St. Clair County.
)
v. ) No. 10-MR-123
)
PEGGY PIERCE, Objector, ST. CLAIR )
COUNTY ELECTORAL BOARD, BOB )
DELANEY, Chairman, ROBERT HAIDA, )
Member, and CHARLES SUAREZ, Member, ) Honorable
) Andrew J. Gleeson,
Respondents-Appellees. ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: August 19, 2010
___________________________________________________________________________________
Justices: Honorable James M. Wexstten, J.,
Honorable Bruce D. Stewart, J., concurs
Honorable Stephen L. Spomer, J., dissents
___________________________________________________________________________________
Attorney Brian M. Funk, Attorney at Law, Westfield Professional Building, 807 West
for Highway 50, Suite 1, O'Fallon, IL 62269
Appellant
___________________________________________________________________________________
Attorneys Robert J. Sprague, Sprague and Urban, 26 East Washington Street, Belleville, IL
for 62220; Garrett P. Hoerner, Becker, Paulson, Hoerner & Thompson, P.C., 5111
Appellee West Main Street, Belleville, IL 62226 (attorneys for Peggy Pierce)
___________________________________________________________________________________