Santana v. State Board of Elections

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State: Illinois

Court: 1st District Appellate

Docket No: 1-05-1950 Rel

Case Date: 03/15/2007

Preview:FOURTH DIVISION MARCH 15, 2007

No. 1-05-1950

VICTOR SANTANA, Petitioner-Appellant, v.

)

THE STATE BOARD OF ELECTIONS, its members JOHN R. KEITH, JESSE SMART, WANDA L. REDNOUR, ELAINE ROUPAS, WILLIAM M. McGUFFAGE, DAVID E. MURRAY, ALBERT PORTER, BRYAN A. SCHNEIDER, and its Executive Director, DANIEL WHITE, and SCOTT SAEWERT, Respondents-Appellees.

On Review from ) an Order of the Illinois ) State Board of Elections. ) ) ) ) ) No. 04 CD 038 ) ) ) ) ) ) )

JUSTICE CAMPBELL delivered the opinion of the court: Petitioner, Victor Santana, appeals from the decision of the Illinois State Board of Elections (Board) finding that he violated multiple sections of the Illinois Election Code. See 10 ILCS 5/1-1, et seq. (West 2004). The Board acted on the complaint of respondent Scott Saewert, who filed a complaint alleging that Santana violated the Election Code in connection with the printing and mailing of campaign literature pertaining to the primary election in Wheeling Township, Illinois, in March 2004. The Board and Saewert filed separate response briefs; Saewert adopts the majority of the content of the Board's brief. We review this administrative order of the Board directly, pursuant to section 9-22 of the Election Code. 10 ILCS 5/9-22 (West 2004).

1-05-1950 On appeal, Santana contends that: (1) the Board incorrectly concluded that Santana is a political committee required to file campaign financing reports; and (2) the Board's decision is deficient for failure to thoroughly consider the record. For the following reasons, we affirm the order of the Board. BACKGROUND The record on appeal contains the following relevant facts. Saewert is the committeeman of the Republicans of Wheeling Township (RWT) as well as the highway commissioner of Wheeling Township. Wheeling Township is comprised of the municipalities of Wheeling, Arlington Heights, portions of Buffalo Grove, Mount Prospect, Des Plaines, and Rolling Meadows, all located northwest of the City of Chicago. In its capacity as official local organization of the state Republican Party, the RWT reviews the candidates in primary and general elections and chooses and endorses its candidates. As committeeman, Saewert participates in making endorsements that are sometimes communicated to voters via direct mail advertising. According to Saewert's complaint, in March 2004, Wheeling Township experienced a "hotly contested and well-financed" three-way primary campaign for judge of the circuit court of Cook County, Twelfth Judicial Subcircuit. Saewert and the RWT endorsed candidate Kay Marie Hanlon and, in support of Hanlon, authorized, produced and mailed to Wheeling Township voters several days before election day a yellow, black and white "sample ballot" highlighting Hanlon's race for the Twelfth Subcircuit race, and also urging voters to support other local, state and national candidates. At the time the sample ballot was distributed, Saewert learned that a different but similarlooking sample ballot arrived in the mailboxes of Wheeling Township voters. This alternative sample ballot was also yellow, black and white in color. The non-RWT sample ballot (Bubaris -2-

1-05-1950 Ballot) purported to endorse the candidacy of Hanlon's rival for the Twelfth Subcircuit judicial race, Athena Frentzas Bubaris. Saewert's name (misspelled as "Saewart") and home address appeared as the return address on the Bubaris Ballot, as describing Saewert's title as committeeman of an organization called the "Regular Republican Organization of Wheeling Township," a group Saewert asserted does not exist. The Bubaris Ballot purported to originate from the Regular Republican Organization of Elk Grove Township, despite the prominent display of Saewert's name and mention of the Wheeling Republican organization. The Regular Republican Organization of Elk Grove Township, an existing political group, did not commission the Bubaris Ballot. As a result of the competing sample ballots, voter confusion ensued in the Wheeling Township precincts. Saewert testified that he received many telephone calls from residents involved in Republican politics in Wheeling Township who were baffled over the apparently conflicting endorsements. Saewert filed an initial complaint with the Board. Saewert's complaint led to an investigation which ultimately identified Santana as the individual who placed an order and paid for the printing of the Bubaris Ballot. On July 15, 2004, Saewert filed a formal complaint alleging that Santana violated sections 9-3, 9-9.5, and 9-10 of the Election Code pertaining to the registration and reporting of political committees. In a closed preliminary hearing, the Board determined that the complaint was filed on justifiable grounds and ordered a public hearing. A public hearing commenced before a hearing officer on October 15, 2004. Saewert testified at the hearing and introduced eight exhibits into evidence. Santana testified and introduced only his own affidavit as an exhibit. Two witnesses testified on Saewert's behalf, Paul Bubaris, the husband of candidate Athena Frentzas Bubaris, and Kurt Ricker, the owner of -3-

1-05-1950 Mailing Concept Solutions, Tinley Park, the company that produced the Bubaris Ballot. Santana questioned Ricker, but called no witnesses on his behalf. Santana testified that he has worked on state, local and national political campaigns for Republican candidates for over 22 years, as both a consultant and campaign manager.1 In March 2004, Santana assisted the primary campaign of Athena Frentzas Bubaris, as a "volunteer." Santana created a sample ballot promoting Athena Frentzas Bubaris at the direction of Paul Bubaris and provided information to AllMedia Print Solutions. Santana stated that the sample ballot was to be mailed to voters in Elk Grove Township just before the day of the primary election, as Athena Frentzas Bubaris was the endorsed candidate of the Republican organization in Elk Grove Township. Santana testified that he had "no idea" how his sample ballot came to feature Saewert's name and home address rather than Santana's name, or the name of the Bubaris campaign, nor could he account for how the sample ballot was mailed to voters in Wheeling Township. Santana reviewed mailings for Hanover2 and Elk Grove Townships and did not see actual proof of mailing to Wheeling Township. Santana speculated that the printing company representatives

1

Santana was the defendant in the unpublished Supreme Court Rule 23 disposition

Olszewski v. Santana, No. 1-02-2498 (July 20, 2004), which addressed Santana's participation in the publication and distribution of defamatory political communication, including a brochure known as "Liar Liar," in connection with the March 17, 1998, Republican primary race for Cook County Board commissioner.
2

Santana testified that the Hanover mailing was a separate and different mailing. -4-

1-05-1950 consulted with websites of local political organizations to determine the appropriate committeemen and their corresponding addresses. Santana testified that the total amount he paid for the Bubaris mailing was $3500. He met Alan Drazek of AllMedia at Portillo's restaurant on Harlem Avenue in Chicago and paid Drazek in two cash installments, remitting about $2,200 "the first day," and the remainder the next day. Santana stated the order was for "two jobs," one for Wheeling and one for Hanover. Santana indicated that these activities occurred "pretty close to the election," and that "we had to get the postage and put it in the mail." Santana stated that he never received a copy of the bill for printing services. Paul Bubaris testified that he and Santana were good friends and had known each other for 15 years. Bubaris stated that he spoke with Santana about the Twelfth Judicial Subcircuit judgeship race every day during the campaign. Bubaris told Santana that he wanted to raise his wife's profile in Elk Grove Township, where she was the endorsed candidate, by highlighting her candidacy in a sample ballot listing her race in addition to the other contested races from state representative up to the presidency. In fact, at that time, Elk Grove Township voters had already received a sample ballot from the Regular Republican Organization of Elk Grove Township backing Athena Frentzas Bubaris' candidacy. Bubaris testified Santana agreed to be responsible for the second mailer. Bubaris and Santana decided that the mailer should be mailed to voters in Elk Grove Township. Bubaris disclaimed either any personal responsibility or any culpability on the part of the campaign for the mailer targeting voters in Wheeling Township because that was not what he wanted or expected.

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1-05-1950 Ricker testified that his company, Mailing Concepts, produced the Bubaris Ballot mailer in conjunction with the graphics and printing firm, AllMedia Print Solutions, based on content provided by Santana. Ricker showed an invoice for the job completed on March 9, 2004, in the amount of $4,648, and stated that Santana paid cash for the mailer project. The hearing officer issued a report and recommendations sometime late 2004.3 The Hearing Officer made finding of fact that Santana worked "as a volunteer for Athena Frentzas Bubaris" and "on behalf of" the Hanover Organization of Republicans. The hearing officer found that Santana spent in excess of $3,000, for a total of $4,648. The hearing officer found that Santana: "did not receive any reimbursement from the Citizens for Athena Frentzas Bubaris or the Hanover Organization of Republicans because the sample ballots were mailed late, contained errors and, in the case of Citizens for Athena Frentzas Bubaris, [were] sent to the wrong voters." The hearing officer concluded that once Santana learned that neither the Hanover Organization nor the Citizens for Athena Bubaris would reimburse him for the $4,648 paid for the Wheeling Ballot and other mailers, he became a "local political committee" and was obligated to file a statement of organization and disclose the money expended. The hearing officer found that Santana violated several provisions of the Election Code, assessed a penalty against Santana in the amount of $4,648, and ordered Santana to file all required organizational and financial reports by December 31, 2004. Santana filed several of the required reports on December 30, 2004. On December 3, 2004, the Board voted to adopt the recommendations of the hearing officer. In early 2005, the Board met several times to discuss the case. On February 25, 2005,

3

The report of the hearing examiner is undated in the record on appeal. -6-

1-05-1950 the Board granted Santana's motion for a rehearing.. On May 23, 2005, the Board issued its final order. Therein, the Board found as follows: "1. The Respondent violated 10 ILCS 5/9-3 and 5/9-10 in that the Respondent spent $4648.00 to support a candidate for public office but did not file a D-1 Statement of Organization, a Schedule A-1, a March 2004 Pre-Election Report of Campaign Contributions, or a June 2004 Semi-Annual Report of Campaign Contributions and Expenditures in a timely manner; and 2. The Respondent also violated 10 ILCS 5/9-9.5 by failing to attach the required attribution of source to distributed political materials***." The Board assessed a penalty against Santana in the amount of $4,648; referred the matter to the office of the Cook County State's Attorney for review; and denied Santana's petition reconsideration of its final order on June 16, 2005. Santana filed this timely appeal from the Board's orders of May 23, 2005, and June 16, 2005. OPINION On appeal, Santana initially contends that the Board incorrectly determined that he is a political party subject to the sections 9-3, 9-9.5 and 9-10 of the Election Code. 10 ILCS 5/9-3, 9-9.5, 9-10 (West 2004). Santana argues that the evidence at the hearing revealed that he was working for established political committees and therefore did not constitute a political party subject to the above provisions of the Code. This court reviews the decision of an administrative body as a "mixed question of law and fact," on a "clearly erroneous" standard. AFM Messenger Service, Inc. v. Department of -7-

1-05-1950 Employment Security, 198 Ill. 2d 380, 763 N.E.2d 272 (2001); City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 692 N.E.2d 295 (1998). A mixed question of law and fact involves an analysis of the application of the rule of law to the established facts; the ultimate determination is whether the rule of law is violated. AFM Messenger, 198 Ill. 2d at 391, 763 N.E.2d at 279. The "clearly erroneous" standard is "significantly deferential" to administrative decisions and requires that an agency's determination will be reversed "only where the reviewing court, on the entire record, is 'left with the definite and firm conviction that a mistake has been committed' " AFM Messenger, 198 Ill. 2d at 394, 763 N.E.2d at 281 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948)). The decision of an election board is subject to such deference. Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 634 N.E.2d 712 (1994). The requirements for the formation of a political committee is detailed in section 9-3 of the Election Code, which provides in pertinent part as follows: "

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