{ "id": 5252847, "name": "ROBERT L. MOSCARDINI, Plaintiff-Appellant, v. THE COUNTY OFFICERS ELECTORAL BOARD OF DU PAGE COUNTY et al., Defendants-Appellees", "name_abbreviation": "Moscardini v. County Officers Electoral Board", "decision_date": "1992-03-03", "docket_number": "No. 2\u201492\u20140174", "first_page": "1059", "last_page": "1065", "citations": [ { "type": "official", "cite": "224 Ill. App. 3d 1059" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "147 Ill. 2d 40", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3278337 ], "pin_cites": [ { "page": "47" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/147/0040-01" ] }, { "cite": "142 Ill. App. 3d 840", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3448061 ], "pin_cites": [ { "page": "843" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0840-01" ] }, { "cite": "105 Ill. 2d 501", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141089 ], "pin_cites": [ { "page": "508" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0501-01" ] }, { "cite": "181 Ill. App. 3d 327", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498476 ], "weight": 2, "pin_cites": [ { "page": "338" }, { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/181/0327-01" ] }, { "cite": "35 Ill. App. 3d 532", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5304078 ], "weight": 2, "pin_cites": [ { "page": "536" }, { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/0532-01" ] }, { "cite": "156 Ill. App. 3d 201", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3506549 ], "weight": 3, "pin_cites": [ { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0201-01" ] }, { "cite": "65 Ill. App. 2d 193", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5293346 ], "pin_cites": [ { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/65/0193-01" ] }, { "cite": "122 Ill. App. 3d 697", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3522885 ], "pin_cites": [ { "page": "700" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/0697-01" ] }, { "cite": "156 Ill. App. 3d 201", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3506549 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/156/0201-01" ] } ], "analysis": { "cardinality": 617, "char_count": 14186, "ocr_confidence": 0.791, "pagerank": { "raw": 1.1681480220048801e-07, "percentile": 0.5856221733390634 }, "sha256": "11c410875a76945ee18b5cc901abf03cbcfde29bf294727ff257265426eee187", "simhash": "1:1fb747856f11f46e", "word_count": 2302 }, "last_updated": "2023-07-14T21:10:25.672470+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ROBERT L. MOSCARDINI, Plaintiff-Appellant, v. THE COUNTY OFFICERS ELECTORAL BOARD OF DU PAGE COUNTY et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE DUNN\ndelivered the opinion of the court:\nPlaintiff, Robert Moscardini, appeals from a judgment of the circuit court of Du Page County in an action for judicial review of a decision of the County Officers Electoral Board of Du Page County (Board). The circuit court upheld the Board\u2019s decision removing Moscardini\u2019s name from the March 17, 1992, primary ballot for the office of Republican precinct committeeman for precinct 69 of York Township in Du Page County. Moscardini argues on appeal that the Board\u2019s decision must be reversed because it was against the manifest weight of the evidence, it was reached during closed deliberations in violation of the Open Meetings Act (Ill. Rev. Stat. 1989, ch. 102, par. 41 et seq.), and it results in illegal discrimination against disabled people who circulate nominating petitions. We reverse and order the Board to place plaintiff\u2019s name on the primary ballot.\nPlaintiff submitted a nominating petition for the above office to the Board. The petition contained six sheets with a total of 75 signatures. Plaintiff\u2019s wife, Geraldine, signed an affidavit at the bottom of each sheet which stated that each of the signatures was placed on the sheet in her presence, that the signatures are genuine and, to the best of her belief, the persons who signed the sheet were registered voters whose addresses were correctly set forth therein.\nDefendant, Mary Guardalabene, filed objections to plaintiff\u2019s petition with the Board. The objection at issue here is that Geraldine Moscardini did not actually circulate the petition even though she signed the affidavit at the bottom of all six sheets. At the Board\u2019s hearing on the objections, Guardalabene submitted affidavits from six individuals. Each of these affiants had signed a different sheet of plaintiff\u2019s petition. Each affidavit states that the affiant did not sign plaintiff\u2019s petition \u201cin the presence of Geraldine C. Moscardini.\u201d\nAt the same hearing plaintiff submitted an affidavit from Geraldine Moscardini which states as follows. Geraldine saw all of the signatories actually place their signatures on her husband\u2019s petition. She was never more than 20 feet away from any of them at the time they signed the petition. Geraldine did not walk up to the front door of each voter\u2019s residence with the petition because she has a degenerative bone disease which makes walking painful. Her son accompanied her and took the petition to some of the voters at their front doors; her husband did so with other voters; and a woman named Joyce Krempasky did so with others. At the hearing plaintiff submitted affidavits from each of these individuals which corroborated the statements in Geraldine\u2019s affidavit.\nPlaintiff\u2019s counsel argued at the hearing that although Geraldine did not carry the clipboard containing the petition and personally solicit each individual who signed the petition, she was present at the time of each signature within the meaning of section 7 \u2014 10 of the Election Code (Code) (Ill. Rev. Stat. 1989, ch. 46, par. 7\u201410). In a written decision dated January 9, 1992, however, the Board concluded that plaintiff\u2019s petition did not comply with section 7 \u2014 10. The Board ruled that plaintiff\u2019s name would not be placed on the primary ballot. Plaintiff sought judicial review of the Board\u2019s ruling in the circuit court of Du Page County which upheld the decision in an order dated February 5,1992. Plaintiff now appeals.\nSection 7 \u2014 10 of the Code (Ill. Rev. Stat. 1989, ch. 46, par. 7\u201410) states that at the bottom of each sheet of a nominating petition there must be a statement signed by a registered voter from the political subdivision in which the candidate seeks election. In this statement the affiant must certify \u201cthat the signatures on that sheet of the petition were signed in his presence, *** that the signatures on the sheet are genuine, and *** to the best of his knowledge and belief the persons so signing were at the time of the signing qualified voters of the political party for which a nomination is sought.\u201d (Ill. Rev. Stat. 1989, ch. 46, par. 7\u201410.) This portion of section 7 \u2014 10 of the Code has been strictly enforced by courts because the requirements contained therein are important safeguards against fraud in the nominating process. Fortas v. Dixon (1984), 122 Ill. App. 3d 697, 700.\nThe Board made no finding in its written decision that Geraldine Moscardini was not present when any of the signatures were placed on her husband\u2019s petition. The Board stated in the decision that it had considered the affidavits submitted by plaintiff and Guardalabene. In paragraph two of the decision it stated that it had also considered \u201cstatements and admissions by the candidate\u2019s counsel that the actual circulator was not Geraldine Moscardini, who was described by the af-fiants in the counter-affidavits submitted in her behalf as being physically unable to present the petition to voters.\u201d In the next paragraph the Board concluded that plaintiff had \u201cnot complied with section 7\u2014 10 of the Election Code requiring the circulator to swear that the signatures on the petition sheet were signed in her presence.\u201d\nThe only \u201cadmission\u201d of the candidate\u2019s counsel to which the Board could have been referring was an admission that Geraldine did not physically hand the clipboard containing the petition to each voter who signed the petition. The Board\u2019s decision therefore appears to be premised upon a belief that the person who signs the so-called circulator\u2019s affidavit at the bottom of each sheet of a nominating petition must be the person who physically presented the sheet to each voter who signed it. Section 7 \u2014 10 of the Code contains no such requirement. Instead the only requirement of that provision which is relevant to the objection we are considering here is that the person who signs the circulator\u2019s affidavit must have been present when each signatory signed the sheet.\nIt has been held that the witnessing of a will was done \u201cin decedent\u2019s presence\u201d when the decedent, who was 12 to 15 feet away, had ample opportunity to see the witness sign the attestation clause. (In re Estate of Guinane (1965), 65 Ill. App. 2d 193, 198.) If Geraldine\u2019s affidavit is true, she not only had ample opportunity to see each of the signatories sign her husband\u2019s petition, since she was standing no more than 20 feet away from any of them when they did so, but she also actually did see each of these individuals sign the petition. Therefore, under Estate of Guinane, the signatures were placed on the petition in Geraldine\u2019s presence if her affidavit and the supporting affidavits are true.\nWe recognize that in Huskey v. Municipal Officers Electoral Board (1987), 156 Ill. App. 3d 201, the court stated that section 7 \u2014 10 was violated when the circulator allowed persons to sign the names of family members who were not present \u201cand when someone other than the affiant actually presented the petition to signers.\u201d (Huskey, 156 Ill. App. 3d at 204.) In Huskey, however, the affiant who signed the circulator\u2019s affidavit at the bottom of each sheet admitted that some of the names on the petition were not signed in her presence. (156 Ill. App. 3d 201.) Therefore we do not interpret Huskey as requiring that the person who signs the circulator\u2019s affidavit be the person who physically presented the sheet to each signatory.\nTo the extent that Huskey does impose such a requirement we decline to follow it. The purpose of the portion of section 7 \u2014 10 that we are considering is to prevent the filing of nominating petitions with fraudulent signatures. (Williams v. Butler (1976), 35 Ill. App. 3d 532, 536.) Reading into section 7 \u2014 10 of the Code a requirement that the person who signs the circulator\u2019s affidavit be the one who physically presented the sheet to each signatory would do nothing to serve this purpose. The Board\u2019s apparent conclusion that such a requirement exists is erroneous as a matter of law, and its decision must therefore be reversed. If Geraldine actually saw each of the signatories sign the petition, there was no violation of section 7 \u2014 10 even if she did not physically present the petition to some of them.\nEven if the Board relied upon the six affidavits from petition signers who stated that they did not sign in the presence of Geraldine Moscardini, its decision must be reversed. These six affidavits, which were the only evidence submitted in support of Guardalabene\u2019s objections, clearly constituted hearsay evidence. Although certain evidentiary rules may be relaxed in administrative hearings, the rule against hearsay is a fundamental rather than a technical rule. (Saal v. County of Carroll (1989), 181 Ill. App. 3d 327, 338.) In Saal, we held that when the only evidence presented to a county board regarding a certain charge against plaintiff was hearsay the charge should have been rejected by the Board. Saal, 181 Ill. App. 3d at 338.\nIn the case at bar, unlike Saal, plaintiff failed to object to the proffered hearsay evidence. Hearsay evidence which is admitted without objection may be considered and given its natural probative value. (Jackson v. Board of Review of the Department of Labor (1985), 105 Ill. 2d 501, 508.) Because these affidavits were controverted by those submitted on plaintiff\u2019s behalf, however, their value is minimal.\nThe purpose of allowing judicial review of election board decisions is to provide a remedy for arbitrary decisions. (Williams v. Butler (1976), 35 Ill. App. 3d 532, 538.) A decision based solely upon controverted affidavits could be nothing but arbitrary, unlike a decision based upon conflicting witness testimony where there is an opportunity to determine which witnesses are more credible by observing their demeanors. There was no reasonable basis to support a conclusion that the objector\u2019s affidavits were more credible than those submitted on plaintiff\u2019s behalf. Furthermore, Geraldine\u2019s affidavit and the other affidavits submitted by plaintiff contain specific factual statements establishing that she was present when each voter signed plaintiff\u2019s petition. The objector\u2019s affidavits only make the conclusional statement that the affiant did not sign the petition in Geraldine\u2019s presence. Conclusional matter in affidavits is generally inadmissible. See Milwaukee Cheese Co. v. Cornerstone Inn, Inc. (1986), 142 Ill. App. 3d 840, 843.\nAccess to a position on the ballot is a substantial right which should not be lightly denied. (Welch v. Johnson (1992), 147 Ill. 2d 40, 47.) Therefore, even if the Board did rely upon the controverted, con-clusional affidavits submitted by the objector, its decision cannot stand.\nThe Board has moved to dismiss this appeal because of the expense and other difficulties that would result from adding plaintiff\u2019s name to the ballot. We will not deny plaintiff a substantial right because the Board\u2019s own erroneous decision will necessitate the reprinting of ballots. The motion is denied.\nIn light of our ruling it is not necessary to consider the other issues raised by plaintiff. For the reasons expressed herein, the Board\u2019s decision and the order of the circuit court of Du Page County upholding it are reversed. Pursuant to our authority under Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366(a)(5)), we order the Board to place plaintiff\u2019s name on the March 17, 1992, primary ballot for the office which he seeks. Our mandate shall issue immediately upon the filing of this opinion.\nReversed.\nGEIGER, J., concurs.", "type": "majority", "author": "JUSTICE DUNN" }, { "text": "JUSTICE WOODWARD,\ndissenting:\nI respectfully dissent. The primary issue before us is whether the Board\u2019s decision was against the manifest weight of the evidence. On administrative review, the findings and decision of the Board will not be overturned unless they are against the manifest weight of the evidence. Huskey v. Municipal Officers Electoral Board (1987), 156 Ill. App. 3d 201.\nThe documentary evidence submitted to the Board was as follows. Plaintiff filed six nominating petitions which contained 75 signatures. Each petition was signed by Geraldine Moscardini as circulator of same. At the hearing before the Board, Ms. Moscardini submitted a sworn affidavit which averred that, because she has a degenerative bone disease which makes stair climbing difficult, she enlisted the help of others to circulate plaintiff\u2019s nominating petition. A number of affidavits confirmed the substance of Ms. Moscardini\u2019s affidavit. Plaintiff also submitted the affidavit of Joyce Krempasky, which stated that she was accompanied by Ms. Moscardini because of Ms. Krem-pasky\u2019s eye condition (macular degeneration). Due to this condition, she could not see exactly what the signers were writing on the subject petitions. Ms. Krempasky\u2019s affidavit further averred that Ms. Moscardini watched the signers affix their signatures from a distance of 15 to 20 feet.\nDefense counsel conceded that Ms. Krempasky carried the clipboard on which the subject petitions were signed. She went to the signers\u2019 front doors. Upon the signature being affixed to the petition, she carried the clipboard back to Ms. Moscardini and handed it to her.\nDefendant\u2019s evidence consisted of six affidavits, several of which were signed by two people who lived at the same address. These affidavits, each of which related to a separate petition sheet, alleged that the affiants had not signed plaintiff\u2019s nominating petition in the presence of Ms. Moscardini.\nFrom the evidence in this record, which is admittedly spare, the Board was entitled to find that Ms. Moscardini was not in the presence of the signers at the time their signatures were affixed to the petition; therefore, the petitions signed by her as circulator were not valid.\nFor these reasons, the Board\u2019s decision is not against the manifest weight of the evidence.", "type": "dissent", "author": "JUSTICE WOODWARD," } ], "attorneys": [ "James Bryan Sullivan, of Oak Brook, for appellant.", "Thomas C. Kellegan, of Wheaton, and Patrick K. Bond and Mary E. Dickson, both of Schirott & Hervas, P.C., of Itasca, for appellees." ], "corrections": "", "head_matter": "ROBERT L. MOSCARDINI, Plaintiff-Appellant, v. THE COUNTY OFFICERS ELECTORAL BOARD OF DU PAGE COUNTY et al., Defendants-Appellees.\nSecond District\nNo. 2\u201492\u20140174\nOpinion filed March 3, 1992.\nWOODWARD, J., dissenting.\nJames Bryan Sullivan, of Oak Brook, for appellant.\nThomas C. Kellegan, of Wheaton, and Patrick K. Bond and Mary E. Dickson, both of Schirott & Hervas, P.C., of Itasca, for appellees." }, "file_name": "1059-01", "first_page_order": 1083, "last_page_order": 1089 }