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Docket Number

No. 87-0406

Attorney(S)

Andrew M. Raucci and Michael P. McClelland, both of Chicago, for appellant Thomas R. Allen. Mickey Levinson and Franklin J. Lunding, Jr., both of Chicago, for appellant Board of Election Commissioners of City of Chicago. Michael A. Kreloff, of Louis S. Goldstein Associates, of Chicago, for appellee.

Judges

JUSTICE JOHNSON delivered the opinion of the court:

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Smart Summary

Case Summary — Martin J. Serwinski v. The Board of Election Commissioners of the City of Chicago, et al. (No. 87-0406)

Factual and Procedural Background

This proceeding arose from objections filed on December 22, 1986, by respondent Thomas R. Allen to Martin J. Serwinski's nominating petition for alderman of the 38th Ward in the February 24, 1987 election. Petitioner Serwinski had submitted nominating petitions, a loyalty oath, and a statement of candidacy on December 15, 1986. Although he had presented a statement of candidacy to a notary and represented that he believed it was correct, the statement had not been signed by him.

The electoral board (the Board of Election Commissioners of the City of Chicago) held a hearing, found that petitioner had not subscribed and sworn to the statement of candidacy as required by section 10-5 of the Illinois Election Code, sustained the objections, and excluded petitioner from the ballot. On judicial review, the circuit court of Cook County set aside the electoral board's decision and ordered petitioner's name placed on the ballot. Respondents appealed to the Appellate Court. This court granted an expedited hearing and entered an order reversing the trial court, directing that petitioner's name not be printed on the ballot; the opinion here explains that reversal.

Legal Issues Presented

Whether the subscription and oath requirement in section 10-5 of the Illinois Election Code (Ill. Rev. Stat. 1985, ch. 46, par. 10-5) is mandatory or directory such that a failure to sign and swear a statement of candidacy invalidates the nominating papers.
Whether the trial court, on judicial review, properly reversed the electoral board's decision or whether the appellate court should defer to the electoral board's factual findings and sustain its decision as not being against the manifest weight of the evidence.

Arguments of the Parties

Petitioner's Arguments (Martin J. Serwinski)

Petitioner contended that his failure to sign his statement of candidacy was not fatal to his nomination. He relied on the criteria from People ex rel. Meyer v. Kerner and Ballentine v. Bardwell and argued that, despite the use of the word "shall," the subscription-and-oath provision in section 10-5 is directory rather than mandatory.

Respondents' Arguments (Thomas R. Allen and Board of Election Commissioners)

Respondents argued that the electoral board's decision to exclude petitioner from the ballot was supported by the manifest weight of the evidence because petitioner undisputedly failed to sign the statement of candidacy required by section 10-5.
They also contended that the trial court failed to apply the proper, deferential standard of review to the electoral board's factual findings and thus exceeded the limits of its review.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People ex rel. Meyer v. Kerner, 35 Ill.2d 33, 219 N.E.2d 617 (1966)	Framework for determining when statutory provisions are mandatory vs. directory; where statute does not expressly declare mandatory, failure to strictly comply is not fatal absent fraud or effect on merits of election.	Used as a starting point for the mandatory/directory analysis and cited for the rule that legislative intent controls; distinguished because section 10-5's oath/subscription is preelection and content-related, indicating mandatory effect.
Ballentine v. Bardwell, 132 Ill. App.3d 1033, 478 N.E.2d 500 (1985)	Discussed situations where statutory "shall" language has been construed as directory, particularly when requirement is not content-related.	Cited by petitioner to argue directory construction; the court referenced Ballentine but explained that because section 10-5 is content-related here, Ballentine's reasoning supports finding the provision mandatory rather than directory.
People ex rel. Agnew v. Graham, 267 Ill. 426, 108 N.E. 699 (1915)	Established that failure to follow a mandatory statutory provision renders the proceeding illegal and void; contrasted with directory provisions where strict compliance is not necessary.	Referenced as authority for the general distinction between mandatory and directory statutory provisions.
Havens v. Miller, 102 Ill. App.3d 558, 429 N.E.2d 1292 (1981)	Considered a comparable Election Code oath requirement and emphasized that oaths trigger the perjury provision; held the provision mandatory.	Directly relied upon: the court found the oath in section 10-5 likewise activates perjury provisions and is therefore mandatory.
Andrews v. Foxworthy, 71 Ill.2d 13, 373 N.E.2d 1332 (1978)	Example of cases construing "shall" as directory in election statutes.	Cited as part of the survey of case law showing that "shall" is not always mandatory; used to contrast the present case where other factors make the provision mandatory.
Korte-Reinheimer v. City Council, 94 Ill. App.3d 219, 418 N.E.2d 783 (1981)	Example where "shall" was treated as directory to validate an election after it occurred without improper voting.	Included among cases where directory construction was appropriate when validating a completed election; distinguished from the present preelection, content-related requirement.
Thomas v. Marcin, 51 Ill. App.3d 82, 366 N.E.2d 416 (1977)	Another case illustrating directory treatment of "shall" in certain election contexts.	Listed with other cases as examples where directory construction was applied to avoid invalidating completed elections absent improper voting.
Gann v. Harrisburg Community Unit School District, 73 Ill. App.2d 103, 218 N.E.2d 833 (1966)	Illustrative case treating certain election statute requirements as directory.	Cited as part of the line of cases where directory construction preserved election results when no improper voting occurred.
Secco v. Chicago Transit Authority, 2 Ill. App.2d 239, 119 N.E.2d 471 (1954)	Another example of directory construction in election statutes.	Included in the opinion's survey as a case where directory construction was applied.
Schumann v. Kumarich, 102 Ill. App.3d 454, 430 N.E.2d 99 (1981)	Example where requirement was not content-related and thus treated as directory.	Used to illustrate the principle that non-content-related requirements may be construed as directory; distinguished from the present content-related subscription/oath.
Williams v. Butler, 35 Ill. App.3d 532, 341 N.E.2d 394 (1976)	Describes the purpose of judicial review under election statutes as a remedy against arbitrary or unsupported decisions.	Quoted to explain the standard and purpose of judicial review of electoral board decisions.
Panarese v. Hosty, 104 Ill. App.3d 627, 432 N.E.2d 1333 (1982)	States that an electoral board decision should not be reversed unless it is against the manifest weight of the evidence.	Cited to frame the deference owed to the electoral board's factual findings on review; the court applied this standard but found the legal question independent and resolved it against petitioner.

Court's Reasoning and Analysis

The court began from the undisputed facts: petitioner failed to sign the statement of candidacy, although he had presented it to a notary and represented that he believed it to be correct. The electoral board found that the evidence did not establish that petitioner had sworn to the statement and, pursuant to section 10-5 of the Election Code, invalidated the statement of candidacy.

The court then undertook the mandatory-versus-directory analysis. It explained the governing method: ascertain legislative intent from the statute's language, nature and object, and consequences of constructions, with People ex rel. Meyer v. Kerner identified as a primary guide. The text of section 10-5 was quoted, emphasizing that each statement "shall be subscribed and sworn to by such candidate before some officer authorized to take acknowledgments of deeds in this State."

The opinion noted that while "shall" is generally regarded as mandatory, courts have sometimes construed similar election statutes as directory, depending on factors such as whether the construction is required to validate an election after it occurred without improper voting, or whether the requirement is content-related. The court surveyed authority illustrating each side of that analysis.

Applying those principles here, the court identified two features pointing to a mandatory construction: (1) the subscription-and-oath requirement is a preelection requirement (it must be complied with before the election), and (2) it is content-related (the oath has substance and relates to the candidate's qualifications and declarations). The court concluded that those factors make the provision indicative of mandatory intent.

The court also relied on Havens v. Miller to stress the significance of oaths in election filings because they activate the criminal perjury provision of the Election Code; for that reason, the oath requirement in section 10-5 is mandatory. Having found the provision mandatory as a matter of law, the court held that petitioner's failure to subscribe and swear to the statement of candidacy rendered the statement illegal and void.

Regarding the standard of review, the opinion acknowledged that judicial review of electoral board decisions is remedial against arbitrary or unsupported decisions and that courts generally should not reverse an electoral board unless its decision is against the manifest weight of the evidence. The court emphasized deference to factual findings but explained that the controlling facts (failure to sign) were undisputed and thus the question rested on the legal effect of those facts — a question reviewed independently. Applying the legal conclusion that section 10-5's oath-and-subscription is mandatory, the court found the electoral board's decision proper and the trial court's reversal erroneous.

Holding and Implications

Holding: The appellate court reversed the trial court's order setting aside the electoral board's decision and directed that petitioner's name not appear on the official ballot. In sum: Reversed — petitioner excluded from the ballot for failure to subscribe and swear to the statement of candidacy required by section 10-5.

Implications:

Direct effect: The immediate consequence is that Martin J. Serwinski's nominating papers were held illegal and void due to his failure to comply with the mandatory subscription-and-oath requirement, and his name was ordered not to be printed on the ballot.
Legal consequence: The court applied existing statutory interpretation principles and prior cases (notably Havens and Meyer) to conclude that the oath/subscription requirement in section 10-5 is mandatory because it is a preelection, content-related requirement that activates perjury provisions. The opinion does not announce a novel rule beyond its application of those precedents to these facts.

Disposition: Reversed. McMorrow, P.J., and Linn, J., concurred.

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MARTIN J. SERWINSKI, Petitioner-Appellee, v. THE BOARD OF ELECTION COMMISSIONERS OF THE CITY OF CHICAGO et al., Respondents-Appellants.

JUSTICE JOHNSON delivered the opinion of the court:

This proceeding was instituted on December 22, 1986, when Thomas R. Allen, one of the respondents, filed objections to the nominating petition of Martin J. Serwinski, the petitioner, as a candidate in the aldermanic election of February 24, 1987, for alderman of the 38th Ward of the city of Chicago. The board of election commissioners of the city of Chicago (hereinafter referred to as the electoral board), after a hearing, sustained the objections and excluded petitioner from the ballot. After judicial review, the circuit court of Cook County set aside the decision of the electoral board and ordered that petitioner's name appear upon the ballot. Appeal to this court followed. Upon a motion for an expeditious hearing, this court entered an order reversing that judgment, mandating that petitioner's name not be printed on the ballot, and announcing that an opinion would subsequently be filed. This is that opinion.

The record indicates that petitioner filed his nominating petitions, loyalty oath, and statement of candidacy for the office of alderman of the 38th Ward of the city of Chicago on December 15, 1986. That preceding Saturday, he had given the statement of candidacy to the notary, stating that he believed everything was correct, and it was notarized. However, petitioner had failed to sign the statement.

Objections were filed with the electoral board contending that the nominating petition of petitioner was fatally defective because the candidate had not subscribed to his statement of candidacy as required by section 10-5 of the Election Code (Ill. Rev. Stat. 1985, ch. 46, par. 10-5). A hearing was held before a hearing officer of the electoral board. Finding for respondents, the hearing officer found specifically that the evidence did not establish that petitioner had sworn to the statement. It was undisputed that petitioner had failed to sign the statement of candidacy.

The electoral board entered its decision on January 12, 1987, finding that pursuant to section 10-5 of the Election Code, petitioner's failure to sign the statement of candidacy invalidated the statement. On judicial review, the circuit court set aside the decision of the electoral board and ordered that petitioner's name appear on the ballot. Respondents here seek reversal of the trial court's order, contending that the decision of the electoral board was supported by the manifest weight of the evidence. We agree.

Section 10-5 of the Election Code provides, in pertinent part, as follows:

"Such certificate of nomination or nomination papers in addition shall include as a part thereof, the oath required by Section 7-10.1 of this Act and must include a statement of candidacy for each of the candidates named therein, except candidates for electors for President and Vice-President of the United States. Each such statement shall set out the address of such candidate, the office for which he is a candidate, shall state that the candidate is qualified for the office specified and has filed (or will file before the close of the petition filing period) a statement of economic interests as required by the Illinois Governmental Ethics Act,[1] shall request that the candidate's name be placed upon the official ballot and shall be subscribed and sworn to by such candidate before some officer authorized to take acknowledgments of deeds in this State * * *." Ill. Rev. Stat. 1985, ch. 46, par. 10-5.

Petitioner argues that under the criteria expressed in People ex rel. Meyer v. Kerner (1966), 35 Ill.2d 33, 219 N.E.2d 617, and Ballentine v. Bardwell (1985), 132 Ill. App.3d 1033, 478 N.E.2d 500, failure to sign his statement of candidacy is not fatal. He contends that, although section 10-5 uses the word "shall" in reference to the clause requiring candidates to subscribe and swear to their statements of candidacy, such provision is directory rather than mandatory.

• 1 It is well established that the failure to follow a statutory provision which is mandatory renders the proceeding to which it relates illegal and void, while strict compliance to a directory provision is not necessary to the validity of the proceeding. (See People ex rel. Agnew v. Graham (1915), 267 Ill. 426, 436, 108 N.E. 699, 703; Havens v. Miller (1981), 102 Ill. App.3d 558, 564-65, 429 N.E.2d 1292, 1297.) However, no concrete rule exists to distinguish between mandatory and directory provisions. "Whether an enactment is directory or mandatory depends on the legislative intention, to be ascertained from the nature and object of the act and the consequences which would result from any given construction. [Citation.]" Ballentine v. Bardwell (1985), 132 Ill. App.3d 1033, 1036, 478 N.E.2d 500, 503.

• 2 Of course, the starting point in ascertaining legislative intent is in the language of the statute itself. Our supreme court, in considering the validity of an election, set forth the following criteria:

"Where a statute provides that an election shall be rendered void by failure of those involved in the election process to perform certain duties, the courts are bound to enforce it as mandatory. [Citations.] But, where the statute does not expressly declare its provisions to be mandatory or compliance therewith to be essential to its validity, the failure to strictly comply, in the absence of fraud or a showing that the merits of the election were affected thereby, is not fatal. [Citation.]'" ( People ex rel. Meyer v. Kerner (1966), 35 Ill.2d 33, 39, 219 N.E.2d 617, 620.)

The language of the statute at issue here uses the word "shall" in reference to the candidate's oath and signature. In a statutory provision the word "shall" is generally regarded as mandatory, but has been held directory in a variety of cases construing election statutes. (See Andrews v. Foxworthy (1978), 71 Ill.2d 13, 21, 373 N.E.2d 1332, 1335; People ex rel. Meyer v. Kerner (1966), 35 Ill.2d 33, 39, 219 N.E.2d 617, 620; Ballentine v. Bardwell (1985), 132 Ill. App.3d 1033, 1036, 478 N.E.2d 500, 503.) However, courts have usually found such statutory provisions directory (1) where to do so would validate an election after it has taken place without the occurrence of any improper voting ( People ex rel. Meyer v. Kerner (1966), 35 Ill.2d 33, 219 N.E.2d 617; Korte-Reinheimer v. City Council (1981), 94 Ill. App.3d 219, 418 N.E.2d 783; Thomas v. Marcin (1977), 51 Ill. App.3d 82, 366 N.E.2d 416; Gann v. Harrisburg Community Unit School District (1966), 73 Ill. App.2d 103, 218 N.E.2d 833; Secco v. Chicago Transit Authority (1954), 2 Ill. App.2d 239, 119 N.E.2d 471), and (2) where the requirement of that provision is not related to content ( Ballentine v. Bardwell (1985), 132 Ill. App.3d 1033, 478 N.E.2d 500; Schumann v. Kumarich (1981), 102 Ill. App.3d 454, 430 N.E.2d 99). Thus, the use of the word "shall" in the subscription and oath provision of section 10-5 of the Election Code, referring to a preelection requirement and being content-related, is indicative of a mandatory provision.

Furthermore, in Havens v. Miller (1981), 102 Ill. App.3d 558, 429 N.E.2d 1292, this court considered a similar issue. There, the circulator of the nominating petition did not certify under oath that he believed the signers gave their correct residence addresses as required by section 10-4 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 10-4). There, we stressed the significance of oaths to the application of the criminal perjury provision of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 29-10) and held that provision to be mandatory. Here, as in Havens, the oath required by section 10-5 of the Election Code activates the perjury provisions of the Code and is, for that reason, mandatory.

Respondents urge that the trial court exceeded the limits of its standard of review by not taking a deferential approach to the findings of the electoral board. The procedure for judicial review provided in the Election Code (Ill. Rev. Stat. 1985, ch. 46, par. 10-10.1), while not expressly equivalent, is substantially the same as that provided by the Administrative Review Act (Ill. Rev. Stat. 1985, ch. 110, par. 3-110). The purpose of this review is to provide "a remedy against arbitrary or unsupported decisions. [Citation.]" ( Williams v. Butler (1976), 35 Ill. App.3d 532, 538, 341 N.E.2d 394, 398.) Thus, it is well settled that a decision of the electoral board should "not be reversed unless it is against the manifest weight of the evidence." Panarese v. Hosty (1982), 104 Ill. App.3d 627, 629, 432 N.E.2d 1333, 1335.

• 3, 4 This court, likewise, is required to take a deferential approach to the factual findings made on disputed issues. (87 Ill.2d R. 366(b)(1)(ii).) The controlling facts here are not disputed and the legal result of these facts is solely a question of law. "[T]he scope of our review on questions of law is independent, not deferential." ( Havens v. Miller (1981), 102 Ill. App.3d 558, 567, 429 N.E.2d 1292, 1298 (comparing Supreme Court Rule 366(b)(1)(i) (87 Ill.2d R. 366(b)(1)(i)) with Rule 366(b)(1)(ii) (87 Ill.2d R. 366(b)(1)(ii))).) As a matter of law we find the provisions of section 10-5 of the Election Code (Ill. Rev. Stat. 1985, ch. 46, par. 10-5), relating to the oath and subscription requirements, to be mandatory. Petitioner's failure to comply with this provision renders the statement of candidacy illegal and void.

For these reasons, stated herein, we conclude that the decision of the electoral board was proper and, therefore, the trial court erred in reversing that decision. Accordingly, we entered the order in this case reversing the trial court and directing that petitioner's name not appear on the official ballot.

Reversed.

McMORROW, P.J., and LINN, J., concur.

SERWINSKI v. BD. OF ELECTION COMM'RS