This appeal arises from an order of the circuit court reversing a decision of the Education Officers Electoral Board for School District 148 (Board) and ordering that plaintiffs name appear on the ballot for an election to be held on April 1, 2003. Inasmuch as the election is due to be held on April 1, 2003, and inasmuch as a prompt and speedy decision is required, this court has allowed an expedited appeal.
The essential facts are as follows: On January 13, 2003, plaintiff, James E. Bendell, filed his nominating petitions, statement of candidacy, loyalty oath, and statement of economic interests for the position of member of the Board of Education of School District 148. Those documents, which totaled somewhere between 6 and 8 pages, were clipped together with a large paper clip. On January 28, 2003, defendant-objector Lucille Malone filed her verified objector's petition against plaintiffs nominating papers claiming that plaintiff had failed to meet the requirements of the Illinois Election Code (Code) in that the petitions and nominating papers were not securely bound in book form.
Subsequent to a hearing and arguments, the Board voted 2-1 that plaintiff failed to comply with the statutory requirements of the Code by paper clipping his nomination papers together and ordered his name not to appear on the ballot for the April 1, 2003, non-partisan election.
Thereafter, plaintiff filed a petition for judicial review in the circuit court of Cook County. Following briefing and oral arguments, the court ruled that the Board's decision was against the manifest weight of the evidence, that plaintiffs nominating petitions "substantially complied" with the provisions of the Code, and that plaintiffs name shall appear on the April 1, 2003, ballot.
Defendants have filed the instant appeal raising a single issue: (1) whether section 10-4 of the Illinois Election Code requiring that nominating petitions shall be neatly fastened together in book form in a secure and suitable manner is satisfied through the doctrine of substantial compliance when the candidate uses a paper clip to secure those documents.
Plaintiff has filed a cross-appeal which has raised two issues: (1) whether the decision of the Board was against the manifest weight of the evidence; and (2) whether the Board has jurisdiction to bring this appeal.
Before we address the issue of whether a paper clip can satisfy the requirements stated in section 10-4 of the Illinois Election Code, we must decide whether the Board and its members have standing to appeal the circuit court's reversal of the Board's decision.
The appellate court in Kozenczak v. Du Page County Officers Electoral Bd., 299 Ill.App.3d 205, 207, 233 Ill.Dec. 365, 700 N.E.2d 1073, 1074 (1998), specifically dealt with this issue. The court found that the 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, 233 Ill.Dec. 365, 700 N.E.2d 1073. 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, 233 Ill.Dec. 365, 700 N.E.2d 1073. The court further held that the Board functions in an adjudicatory or quasi-judicial
That holding, however, does not dispose of defendant-objector Malone's standing to prosecute this appeal. In Kozenczak, the court held that while the objector had standing to prosecute the appeal, he had not filed an appellant's brief. Pursuant to its discretion under Supreme Court Rule 343, the court dismissed his appeal. In the instant case, however, Malone filed her notice of appeal separate and apart from the Board on March 12, 2003, and her appellant's brief on March 18, 2003. Therefore, we find that Malone has standing to prosecute this appeal.
We next address the issue as to whether the requirements stated in section 10-4 of the Illinois Election Code (10 ILCS 5/10-4 (West 1993)), that nominating petitions be fastened together in book form in a secure and suitable manner, may be satisfied through the doctrine of substantial compliance when the candidate uses a single large paper clip to bind the nomination papers.
Section 10-4 states in pertinent part:
It was argued below, as it is here, that plaintiffs petition was not securely fastened in book form in accordance with the above statute. In fact, at some point the statement of economic interest was not attached to the other materials, even though it had been filed. However, no evidence was presented as to how the statement came to be separated from the other materials and whether it was due to its not being securely fastened. Furthermore, during the Board hearing, defendant Delort, who dissented from the decision of the Board, stated:
The construction of a statute is a question of law. Maske v. Kane County Officers Electoral Board, 234 Ill.App.3d 508, 175 Ill.Dec. 582, 600 N.E.2d 513 (1992). Accordingly, the reviewing court may make an independent determination and need not defer to the decision of the trial court. Monahan v. Village of Hinsdale, 210 Ill.App.3d 985, 993, 155 Ill.Dec. 571, 569 N.E.2d 1182 (1991). However, because agencies make informed judgments based upon their experience and expertise with similar issues, it is generally recognized that courts give substantial weight and deference to the interpretation of an ambiguous statute by the agency charged with the administration and enforcement of the statute. Monahan, 210 Ill.App.3d at 994, 155 Ill.Dec. 571, 569 N.E.2d 1182. We note, however, that no court in this state has addressed this particular issue.
Defendant argues that the language of the Code is mandatory and demands strict, not substantial, compliance, and that using a paper clip to hold nominating papers together does not strictly comply with the Code. Defendant further argues that because plaintiffs nominating petitions were not in strict compliance, the Code mandates that the signatures on his nominating petitions are invalid.
In determining whether a provision is mandatory or directory, it is necessary to ascertain the intent of the legislature or political body which enacted the law. Havens v. Miller, 102 Ill.App.3d 558, 565, 57 Ill.Dec. 929, 429 N.E.2d 1292 (1981). The first place to look for the intent of a statutory provision is in the language of the statute itself. Havens, 102 Ill.App.3d at 565, 57 Ill.Dec. 929, 429 N.E.2d 1292.
When a statute specifies what result will ensure if its terms are not complied with, that statute is deemed mandatory. Havens, 102 Ill.App.3d at 566, 57 Ill.Dec. 929, 429 N.E.2d 1292. And when the word "shall" is used in a statute, such language generally evidences the legislature's mandatory intent. Jones v. Dodendorf 190 Ill.App.3d 557, 137 Ill.Dec. 468, 546 N.E.2d 92 (1989); Simmons v. DuBose, 142 Ill.App.3d 1077, 1080, 97 Ill.Dec. 150, 492 N.E.2d 586 (1986).
In the instant case, section 10-4 provides that noncompliance with its provisions "shall" invalidate the signatures on a nominating petition. Specifically, the Code states: "No signature shall be valid or be counted in considering the validity or sufficiency of such petition unless the requirements of this Section are complied with." Based upon that language which imposes sanctions in the event the provisions of the Code are not complied with, coupled with the use of the word "shall," we conclude that the requirements of section 10-4 are mandatory rather than directory.
Having found that the language of 10-4 is mandatory, we must next decide whether strict or substantial compliance is required.
In Jones, plaintiffs nominating petitions were not numbered consecutively in accordance with section 10-4 requiring that the sheets "shall then be numbered consecutively." The Second District found that
In Wollan v. Jacoby, 274 Ill.App.3d 388, 210 Ill.Dec. 841, 653 N.E.2d 1303 (1995), an objection was filed against respondent's nominating petitions on the basis that they were not numbered consecutively as required by section 10-4. This court held that noncompliance with the provision invalidated the petitions and justified the removal of the candidates from the ballot. The court wrote:
Inasmuch as section 10-4 is mandatory, compliance with its provisions must be strict rather than substantial
Turning to the facts of this case, we must now determine whether plaintiff strictly complied with that section by securing his 6 to 8 nominating pages with a large paper clip.
Section 10-4 states that the sheets are to be secured and fastened into "book form." That section does not explain what is meant by "book form." However, it is universally known that a book is a collection of written sheets fastened together along one edge and usually trimmed at the other edges to form a single series of uniform leaves. (Webster's Third New International Dictionary). And as Mr. Delort stated during the hearing before the Board, "there are a lot of definitions of binding." We conclude that plaintiff's nominating papers were in "book form," and, therefore, in strict compliance with the Code. Plaintiffs nominating papers were fastened together along one edge by a large paper clip and formed a single series of uniform leaves. The uncontroverted evidence is that they were securely fastened because a member of the Board was unable to pull them apart without removing the paper clip. This is a fact-specific case. Obviously, if the record established that the nominating papers were not securely fastened or if they had consisted of 500 pages, for example, and were held together by a single, large paper clip, our decision would be different. However, given the fact that there were only 6 to 8 pages which could not be separated without removing the paper clip, and given the fact that this particular binding did not interfere with preserving the integrity of the petitions and the election process generally, plaintiffs nominating petitions strictly complied with section 10-4. For that reason, we affirm the order of the circuit court. We realize that the trial court held that plaintiff had substantially, not strictly, complied with section 10-4.
Given our disposition of defendant's appeal, we choose not to address plaintiffs cross-appeal regarding the trial court's finding that the decision of the Board was contrary to the manifest weight of the evidence.
Accordingly, the judgment of the circuit court is affirmed.
Affirmed.
SOUTH, P.J., with HALL, J., concurring.
WOLFSON, J., dissenting.
Justice WOLFSON, dissenting.
I respectfully dissent. I believe the majority correctly finds section 10-4 is mandatory and that compliance with its provisions must be strict. Once having said that, I don't see how using a paper clip is strict compliance with a provision that requires papers be "neatly fastened together in book form... at one edge in a secure and suitable manner."
Fastening securely is not a trivial or nitpicking requirement. It obviously is intended to prevent fraud or tampering, thus preserving the integrity of the papers. It is too easy to slip papers in or out of a packet when a paper clip is used. Paper clips have a habit of slipping off when documents are moved from place to place. I don't think we can establish a rule that is based on what happens when a paper clip is used to hold seven or eight pages together. An important public interest is at stake and we should adhere to the legislature's method of preserving it.
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