Hossfeld v. Illinois State Board of Elections

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State: Illinois

Court: 1st District Appellate

Docket No: 1-09-3598 Rel

Case Date: 02/24/2010

Preview:THIRD DIVISION FEBRUARY 24, 2010

No. 1-09-3598

FREDERICK J. HOSSFELD,

) ) Petitioner-Appellant, ) ) v. ) ) ILLINOIS STATE BOARD OF ELECTIONS, ) Sitting as the State Officers Electoral Board, its ) members BRYAN SCHNEIDER, chairman, and ) members, ALBERT PORTER, JESSE SMART, ) WANDA L. REDNOUR, ROBERT J. WALTERS, ) PATRICK A. BRADY, WILLIAM M. ) McGUFFAGE, and JOHN R. KEITH, and ) STEVEN J. RAUSCHENBERGER, ) ) Respondents-Appellees. )

Appeal from the Circuit Court of Cook County.

No. 09 COEL 060

The Honorable Edward O'Brien, Judge Presiding.

JUSTICE COLEMAN delivered the opinion of the court: Petitioner-appellant, Frederick J. Hossfeld, objected to the Republican candidacy of Steven J. Rauschenberger for the State Senate on the basis that Rauschenberger was ineligible to run as a Republican because he had voted a Democratic ballot in a consolidated primary election in February 2009. Hossfeld contends that Rauschenberger's "Statement of Candidacy," which attests that Rauschenberger is a qualified primary voter of the Republican Party, was false. Following a hearing at the Illinois State Board of Elections, the hearing examiner issued a "Report and Recommended Decision" in which she recommended that the State Officers' Electoral Board (Board) invalidate candidate Rauschenberger's nominating papers and remove his

1-09-3598 name from the ballot at the February 2, 2010, general primary election. A tie vote of the Board resulted in Rauschenberger's name remaining on the ballot. Hossfeld petitioned for administrative review in the circuit court of Cook County. The circuit court denied Hossfeld's petition. The instant expedited appeal followed. We affirm. BACKGROUND On February 24, 2009, Rauschenberger voted a Democratic ballot in a consolidated primary election in Elgin Township and subsequently voted in the general township election in April 2009. On October 28, 2009, he filed his nomination papers as a Republican Party candidate for the office of State Senator for the 22nd legislative district in the February 2010 general primary election. Hossfeld filed a timely petition objecting to Rauschenberger's candidacy. See 10 ILCS 5/10-8 (West 2006). Hossfeld objected on the basis that Rauschenberger's "Statement of Candidacy" was invalid because he was not a "qualified primary voter" for the party for which he was seeking election, as required by section 8-8 of the Election Code. See 10 ILCS 5/8-8 (West 2006). In his objector's petition, Hossfeld alleged that Rauschenberger had voted a Democratic ballot in the February 2009 consolidated primary and thus is not a "qualified primary voter" for the Republican party. Hossfeld asserts that, based on Cullerton v. Du Page County Officers Electoral Board, 384 Ill. App. 3d 989 (2008), Rauschenberger is "locked-in" as a Democrat until he votes in the next primary on February 2, 2010. Following the hearing on Hossfeld's objection, the examiner issued a decision and recommendation to the Board in which, primarily relying on Cullerton, she recommended that Rauschenberger's name be removed from the Republican ballot for the general primary election to be held on February 2, 2010. On December 10, 2009, the Board voted 4 to 4, resulting in the

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1-09-3598 candidate's name remaining on the ballot pending judicial review.1 The Board issued a written decision on December 16, 2009. Hossfeld filed a petition for judicial review in the circuit court of Cook County on December 18, 2009. On December 23, 2009, the circuit court denied Hossfeld's petition. On January 4, 2010, Hossfeld sought leave to file an expedited appeal pursuant to Illinois Supreme Court Rule 311. 155 Ill. 2d R. 311. We allowed the appeal and heard oral arguments on January 8, 2010. On that date we issued an order affirming the circuit court's ruling and confirming the Board's decision. We discuss our reasoning below. ANALYSIS Reviewing courts view an electoral board as an administrative agency. See Kozel v. State Board of Elections, 126 Ill. 2d 58, 68 (1988). We review the administrative decision, not the circuit court decision. Most Worshipful Grand Lodge of Ancient Free & Accepted Masons v. Department of Revenue, 378 Ill. App. 3d 1069, 1074 (2007). Our supreme court has identified three types of questions that a court may encounter on administrative review: questions of fact, questions of law, and mixed questions of fact and law. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191 (1998). Our review of an agency's findings on questions of fact is limited to ascertaining whether such findings are against the manifest weight of the evidence since the agency's factual findings are deemed prima facie true and correct. City of Belvidere, 181

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The State Officers' Electoral Board typically consists of four Democrats and four

Republicans. The Election Code requires a majority vote by (five) Board members to invalidate nominating papers. 10 ILCS 5/10-10 (West 2006). Our supreme court has held that a 4 to 4 decision by the Board of Elections is subject to judicial review. See Cook County Republican Party v. Illinois State Board of Elections, 232 Ill. 2d 231 (2009). 3

1-09-3598 Ill. 2d at 204. An administrative agency's factual determinations are against the manifest weight of the evidence if the opposite conclusion is clearly evident. City of Belvidere, 181 Ill. 2d at 204. We review an agency's decision on a question of law de novo. City of Belvidere, 181 Ill. 2d at 205. Mixed questions of law and fact involve situations where "the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard." Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19, 72 L. Ed. 2d 66, 80 n.19, 102 S. Ct. 1781, 1790 n.19 (1982). An examination of the legal effect of a given set of facts is a mixed question of law and fact that is reviewed for clear error. Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 211 (2008). The decision of an administrative agency is clearly erroneous when the reviewing court is left with the " 'definite and firm conviction that a mistake has been committed.' " Cinkus, 228 Ill. 2d at 211, quoting AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 393 (2001). On appeal, Hossfeld argues that the Board and the circuit court rejected controlling precedent by failing to follow Cullerton v. Du Page County Officers Electoral Board, 384 Ill. App. 3d 989 (2008). Hossfeld contends that the holding in Cullerton is not limited to an "election cycle" and, based on that case, Rauschenberger is not a qualified primary voter of the Republican Party because the restrictions on party-switching for candidates remain in effect. In resolving this appeal, we must examine the statutory language of section 8-8 of the Election Code (10 ILCS 5/8-8 (West 2006)), in light of Cullerton, to determine whether Rauschenberger is a qualified primary voter of the party for which he was seeking nomination. Although the historical facts are not in dispute, the parties disagree as to the meaning of the

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1-09-3598 statutory language and the interpretation and application of Cullerton. Thus, our review is de novo. See Cinkus, 228 Ill. 2d at 211; Cullerton, 384 Ill. App. 3d at 994. We therefore begin by discussing section 8-8 of the Election Code, which states, in pertinent part: "The name of no candidate for nomination shall be printed upon the primary ballot unless a petition for nomination shall have been filed in his behalf as provided for in this Section. Each such petition shall include as a part thereof the oath required by section 7-10.1 of this Act and a statement of candidacy by the candidate filing or in whose behalf the petition is filed. This statement shall set out the address of such candidate, the office for which he is a candidate, shall state that the candidate is a qualified primary voter of the party to which the petition relates, is qualified for the office specified and *** shall be subscribed and sworn by such candidate *** and may be in substantially the following form: *** I, ........, being first duly sworn, say that I reside at ....... street in the city (or village of) ....... in the county of ....... State of Illinois; that I am a qualified voter therein and am a qualified primary voter of ....... party; that I am a candidate for nomination to the office of ....... to be voted upon at the primary election to be held on (insert date); that I am legally qualified to hold such office

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1-09-3598 and that I have filed a statement of economic interests as required by the Illinois Governmental Ethics Act and I hereby request that my name be printed upon the official primary ballot for nomination for such office." (Emphasis added.) 10 ILCS 5/8-8 (West 2006). Formerly, section 8-8 contained the following restriction: "For the purpose of determining eligibility to sign a petition for nomination or eligibility to be a candidate under this Article, a 'qualified primary' elector of a party (1) is an elector who has not requested a primary ballot of any other party at a primary election held within 2 years of the date on which the petition must be filed." Ill. Rev. Stat. 1971, ch. 46, par. 8-8. However, that restriction, as it pertained to petition signers, was held constitutionally invalid in Sperling v. County Officers Electoral Board, 57 Ill. 2d 81, 86 (1974). The Sperling court also held that "the restrictive provisions upon the several categories of voters are so closely related that the General Assembly would not have enacted the portion relating to candidates apart from some restrictions upon voters generally and, more particularly, those voters who desire to sign primary petitions. [Citation.] In these circumstances the restrictions upon candidates cannot be considered independent and severable from the invalid portions of the plan." Sperling, 57 Ill. 2d at 86. Contrary to candidate Rauschenberger's assertion, restrictions on candidates' partyswitching have not been held unconstitutional. In Sperling, the court stated, "[w]e believe that the standards governing party changes by candidates may and should be more restrictive than

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1-09-3598 those relating to voters generally. It seems clear to us that the State's interest in preserving the integrity of the political process will support reasonable restriction upon party-switching candidates, and the 2-year restriction in article 8 of the Election Code [citation] was upheld as it applied to candidates for the General Assembly in Bendinger v. Ogilvie (N.D. Ill. 1971), 335 F. Supp. 572." Sperling, 57 Ill. 2d 81, 84-85 (1974). The court continued, stating "[t]hat the restriction on candidates could be upheld against constitutional challenge is, however, of little help here. Such restrictions and establishment of the periods of time involved are, within constitutional limitations, matters for legislative determination." Sperling, 57 Ill. 2d at 86. Thus, the Sperling court essentially invited legislative action. In 1990, the General Assembly amended section 8-8 of the Election Code to remove the definition of a "qualified primary elector" that included the two-year restriction on party-switching for candidates that had been invalidated in Sperling. Pub. Act 86

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