Cullerton v. Du Page County Officers Electoral Board

SUPREME COURT CASES

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State: Illinois

Court: 2nd District Appellate

Docket No: 2-08-0605 Rel

Case Date: 08/07/2008

Preview:No. 2--08--0605 Filed: 8-7-08 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ THOMAS CULLERTON, ) Appeal from the Circuit Court ) of Du Page County. Petitioner-Appellee, ) ) v. ) No. 08--MR--802 ) DU PAGE COUNTY OFFICERS ) ELECTORAL BOARD, CHARLOTTE ) MUSHOW, J.P. "RICK" CARNEY, ) JEANNE McNAMARA, and DONNA ) M. ROZYCKI, ) Honorable ) Paul M. Fullerton, Respondents-Appellants. ) Judge, Presiding. ______________________________________________________________________________ JUSTICE O'MALLEY delivered the opinion of the court: Respondents, Du Page County Officers Electoral Board (Board), Charlotte Mushow, J.P. "Rick" Carney, Jeanne McNamara, and Donna M. Rozycki, appeal from the decision of the circuit court reversing the decision of the Board to exclude petitioner, Thomas Cullerton, from the November 2008 ballot as the Democratic candidate for Senator of the 23rd Legislative District of Illinois. On appeal, respondents assert that the circuit court erred and that the Board correctly excluded petitioner from the ballot, for two reasons. First, respondents argue that the resolution nominating petitioner to fill the vacancy on the Democratic ballot was deficient for its failure to include on its face the date on which the Democratic 23rd Legislative District Committee (Committee) selected him as its nominee for the November 2008 general election. See 10 ILCS 5/7--

No. 2--08--0605 61 (West 2006). Second, respondents argue that petitioner cannot run as a Democratic candidate in the general election because he voted in the Republican primary election and thus does not meet the statutory requirement that he be a "qualified primary voter" of the Democratic party. See 10 ILCS 5/7--10 (West 2006). Because we find the second argument dispositive, we confine our discussion to that issue. For the reasons that follow, we reverse the judgment of the circuit court and hold that petitioner is ineligible to be placed on the November 2008 ballot as the Democratic candidate for Senator of the 23rd Legislative District of Illinois. The parties do not dispute the relevant underlying facts. In February 2008, petitioner voted in the Republican Party primary election in Du Page County, just as he had in 2004 and 2006. After the 2008 primary election, the Democratic Party had no candidate for Senator of the 23rd Legislative District. On April 1, petitioner filed a resolution from the Committee, nominating him as the candidate to fill the Democratic vacancy on the general election ballot. On that same day, petitioner filed a statement of candidacy stating that he was a "qualified primary voter of the Democratic Party." Rozycki filed objections to petitioner's candidacy, and the Board sustained the objections. Petitioner petitioned the circuit court for judicial review of the decision, and the circuit court thereafter reversed the Board's decision and ruled that petitioner's name could appear on the November 2008 general election ballot. The circuit court stayed enforcement of its order, pending this timely appeal. The standards for review of an electoral board decision are essentially identical to those applicable to review of an administrative agency decision. Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 209-10 (2008). An electoral board's findings of fact are deemed prima facie true and correct and will not be overturned on appeal unless they are against the manifest weight of the evidence. Cinkus, 228 Ill. 2d at 210. An electoral board's decisions on

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No. 2--08--0605 questions of law, however, are not binding on a reviewing court, which will instead review such questions under the nondeferential de novo standard of review. Cinkus, 228 Ill. 2d at 210-11. An electoral board's rulings on mixed questions of law and fact--questions on which the historical facts are admitted, the rule of law is undisputed, and the only remaining issue is whether the facts satisfy a statutory standard--will not be disturbed on review unless clearly erroneous. Cinkus, 228 Ill. 2d at 211. In their arguments on appeal, the parties dispute the import of section 7--10 of the Election Code (Code) (10 ILCS 5/7--10 (West 2006)) in light of the Supreme Court's decision in Kusper v. Pontikes, 414 U.S. 51, 38 L. Ed. 2d 260 , 94 S. Ct. 303 (1973), and our supreme court's subsequent decision in Sperling v. County Officers Electoral Board, 57 Ill. 2d 81 (1974). We therefore begin by discussing those two cases as they affect section 7--10 of the Code. In 1971, the Code housed three relevant restrictions on changes in political party affiliation: it restricted party changes by (1) voters; (2) signers of nominating petitions; and (3) candidates for nomination in primary elections. Sperling, 57 Ill. 2d at 81-82. The restriction on party changes by voters appeared in section 7--43 of the Code, which provided as follows: "No person shall be entitled to vote at a primary: *** (d) If he has voted at a primary *** of another political party within a period of 23 calendar months next preceding the calendar month in which such primary is held ***." Ill. Rev. Stat. 1971, ch. 46, par. 7--43(d).

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No. 2--08--0605 The last paragraph of section 7--10 of the Code contained a restriction both on signers of nominating petitions and on candidates: "For the purpose of determining eligibility to sign a petition for nomination or eligibility to be a candidate ***, 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. 7--10. In another, preceding portion of section 7--10, the Code placed an additional restriction on candidates by requiring that a candidate file a statement of candidacy that attests, among other things, that the candidate "is a qualified primary voter of the party to which the [nominating petition] relates." Ill. Rev. Stat. 1971, ch. 46, par. 7--10. (Although petitioner does not seek to be a primary candidate but instead a general election candidate, he was still statutorily required to meet this requirement. See 10 ILCS 5/7--61 (West 2006) (any resolution to fill a vacancy after a primary "shall be accompanied by a Statement of Candidacy, as prescribed in Section 7--10").) As the Code was written in 1971, the definition of the term "qualified primary voter of [a] party" (as the phrase appeared in the statement-of-candidacy requirement) was provided in the above-quoted last paragraph of section 7--10, and it required that the voter not have requested a primary ballot of any other party within two years. Thus, in 1971, the Code barred voters, signers of primary petitions, and candidates from participating in primaries of one political party if they had participated in the primary of another political party within two years. In Kusper, the Supreme Court held that the restriction on voters changing parties was unconstitutional on the ground that it violated voters' first and fourteenth amendment freedom to

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No. 2--08--0605 associate. Kusper, 414 U.S. at 57-61, 38 L. Ed. 2d at 266-69, 94 S. Ct. at 307-10. The Supreme Court explained its holding as follows: "There can be little doubt that

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