Countywide candidate loses The Name Game

The reference in the title of this post, dear Millennial readers, is to a song by Shirley Ellis, from 1964. It is a known earworm.

The Appellate Court ordered the removal of countywide judicial candidate Caroline Patricia Jamieson from the March primary ballot last Thursday.

The case is Oberholtzer v. Cook County Officers Electoral Board, 2020 IL App (1st) 200218-U.

The Court's February 13 decision affirmed a January 30 Circuit Court order.

The Circuit Court's order overturned the January 6 decision of the Cook County Officers Electoral Board, which had overruled the objection to Jamieson's candidacy. (Election law cases move with astounding speed because elections can not be held up by disputes over who should appear on the ballot.)

The case involves the interpretation of §7-10.2 of the Illinois Election Code, 10 ILCS 5/7-10.2.

To understand the objection, one must first recall Patrick Michael O'Brien.

In or about 2005 a Park Ridge attorney named Frederick Rhine decided he wanted to run for judge. He observed that persons with certain Irish names (like O'Brien, not like Leyhane) did extraordinarily well in judicial elections, while persons saddled with other monikers, even proud German names like Rhine, fared less well.

This may be Captain Obvious stuff today; it was perhaps less well known in 2005. But the originality of this insight is beside the point; the point is the action Mr. Rhine took after achieving this epiphany: Mr. Rhine legally changed his name to Patrick Michael O'Brien.

The Sun-Times got wind of the name change that Fall, and ran a story about it.

Then it ran another one in January 2006 when Mr. O'Brien chose not to file for the 2006 primary, thereby avoiding the ambush set for him by the newspaper. (Mr. O'Brien has long since returned to being Mr. Rhine.)

While the immediate crisis was averted, the Powers That Be were unwilling to take the chance that someone else -- someone not vetted by and indebted to the Powers The Be -- might try something similar. Citizen initiative is all well and good... as long as it is strictly controlled.

Then State Rep. (later Cook County Commissioner) John A. Fritchey was the original sponsor of HB 4173 in the 94th General Assembly -- in November 2005 -- but the bill gained bipartisan support in January 2006 when Rep. Jim Durkin, now the Republican House leader, but then a freshman representative serving by mid-term appointment, signed on as a co-sponsor. State Sen. Don Harmon, now the Senate President, was the bill's chief sponsor in the Senate.

Among other things, HB 4173 amended §7-10.2 as follows:

Sec. 7-10.2. In the designation of the name of a candidate on a petition for nomination or certificate of nomination the candidate's given name or names, initial or initials, a nickname by which the candidate is commonly known, or a combination thereof, may be used in addition to the candidate's surname. If a candidate has changed his or her name, whether by a statutory or common law procedure in Illinois or any other jurisdiction, within 3 years before the last day for filing the petition or certificate for that office, whichever is applicable, then (i) the candidate's name on the petition or certificate must be followed by "formerly known as (list all prior names during the 3-year period) until name changed on (list date of each such name change)" and (ii) the petition or certificate must be accompanied by the candidate's affidavit stating the candidate's previous names during the period specified in (i) and the date or dates each of those names was changed; failure to meet these requirements shall be grounds for denying certification of the candidate's name for the ballot or removing the candidate's name from the ballot, as appropriate, but these requirements do not apply to name changes resulting from adoption to assume an adoptive parent's or parents' surname, marriage to assume a spouse's surname, or dissolution of marriage or declaration of invalidity of marriage to assume a former surname. No other designation such as a political slogan, as defined by Section 7-17, title or degree, or nickname suggesting or implying possession of a title, degree or professional status, or similar information may be used in connection with the candidate's surname , except that the title "Mrs." may be used in the case of a married woman.

Now we come to the current case.

Caroline Jamieson Golden challenged Judge David Navarro for a 4th Subcircuit vacancy in the 2018 primary. She lost.

In 2018, Caroline P. Golden was appointed to an unexpired term on the Lyons Township Trustees of Schools.

According to ARDC, Caroline P. Golden is listed on the Master Roll of Attorneys. ARDC also notes her full former name as Caroline Patricia Jamieson.

She is registered to vote as Caroline Golden.

And on November 25, 2019 Caroline Patricia Jamieson filed for the countywide C. Sheehan vacancy.

All the same person.

On December 9 Karla Katz Oberholtzer filed an Objection to Jamieson's nominating petitions.

The operative provisions of her papers are as follows:

   5.   Pursuant to 10 ILCS 5/7-10.2, if the candidate has changed his or her name within three years before the last day for the filing of petitions for public office, those petitions, and her statement of candidacy, must contain a designation as "formerly known as" listing all prior names during the three year time period until the name changed, and listing the date of the name change.

   6.   Further the petition must be accompanied by a candidate's affidavit stating the candidate's previous names during the period specified and the date or dates of each of the name changes.

   7.   Failure to meet these requirements is grounds for denying certification of the candidate's name for the ballot or removing the candidates name from the ballot as appropriate. This candidate within the last three years has ran for public office using the name CAROLINE JAMIESON GOLDEN, and, by appointment, held public office under the name CAROLINE P. GOLDEN. The candidate has now changed her name to run for this public office as CAROLINE PATRICIA JAMIESON.

   8.   The candidate has failed to follow the provisions of 10 ILCS 5/7-10.2 and her name must be stricken from the ballot.

In plain English, the Objector was accusing Jamieson of doing what Mr. Rhine had thought about doing 15 years ago.

The obvious differences between these two situations were duly noted by the Election Board's assigned hearing officer (Report and Recommended Decision, p. 3, footnotes omitted):

§7-10.2 of the Election Code does set forth requirements for those who acquire new names within three years of filing nominating petitions, but it expressly permits candidates to use their given names. It also exempts name changes resulting from adoption, marriage, divorce or annulment. As the candidate now before the Board states, the name she used on her nominating papers is her given name and not a new name acquired outside of the ordinary name changes that occur in life. Objector's contention that because Candidate had previously run for office using her spouse's surname, she is now somehow precluded from using her birth name, is simply not supported by the statute or this Board's prior decisions. In fact, in the absence of relevant case law ruling otherwise, should the County Officers Electoral Board now adopt Objector's prayer, the Candidate could be entitled to assert that the Board had deviated from past practice, in violation of Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. 1971).

In the absence of judicial precedent, the hearing officer's principal reliance for her conclusion was on an Electoral Board decision from the last election cycle, Harris v. Orr, 17 COEB JUD 18 (Dec. 2018).

There are some factual distinctions between Harris and the current case. In Harris, the challenged candidate, Erika Orr, was married a shorter time than Jamieson. She did change her voter registration to reflect her married name, but she did not change her name on the Master Roll of Illinois Attorneys maintained by ARDC. (After the Electoral Board overruled the challenge to her petitions, Orr went on to win election to a 1st Subcircuit seat.)

In adopting the hearing officer's recommendation in the Harris case, the Cook County Officers Electoral Board stated (Decision, p. 2):

In our opinion, the purpose of the statute in question is to force Candidates who have recently acquired new names in processes outside of the "ordinary" name changes that occur in life, to divulge those former names. The Candidate herein does not fit into that class of Candidates.

In reversing the Electoral Board's decision, the Circuit Court noted the numerous instances in which Jamieson had used her married name, Golden, "for close to 20 years," finding also (¶14):

The Candidate did not obtain a legal change of name, did not obtain a dissolution of marriage or a judgment of dissolution with leave to allow the Candidate to resume the use of her former name, Caroline Patricia Jamieson.

The Circuit Court concluded (emphasis mine) that "the Candidate's nominating petitions are in violation of 10 ILCS 5/7-10.2 in that the Candidate['s] legal given and surname is Caroline Patricia Golden and remained so on November 25, 2019, when the nomination petitions were filed with the Board of Elections, and was not legally changed to Jamieson at any time prior to November 25, 2019."

So the objection was that Jamieson had changed her name without providing a "formerly known as" disclosure and affidavit, in contravention of §7-10.2; the Electoral Board disagreed. The trial court essentially agreed with the Electoral Board on this point, finding instead that the fatal defect was that the candidate had failed to change her name back from Golden to Jamieson.

The Appellate Court majority decision affirming the Circuit Court's order removing Jamieson from the ballot, written by Justice Eileen O'Neill Burke, agreed with both the Electoral Board and the Circuit Court. Noting that the "Candidate and the Electoral Board were chiefly concerned with the second provision of the statute, the 'Name Change' provision," the Appellate Court majority stated, "The Candidate maintains that she has not changed her name by any 'statutory or common law procedure' within the last three years and, thus, this section does not invalidate her nomination papers. We agree. There is no suggestion in the record that the Candidate has changed her name by any statutory or common law procedure in Illinois or any other jurisdiction within the last three years requiring her to list any former names on her nomination papers." 2020 IL App (1st) 200218-U, ¶24.

However, because of all the many and various ways in which the Candidate used her married name, Golden, in preference to the name she'd been born with, Jamieson, her "surname" for purposes of the first section of §7-10.2 was Golden. 2020 IL App (1st) 200218-U, ¶¶25-27. The majority concluded, "There has been no information presented to this court showing that she has used the surname Jamieson in any legal capacity in over a decade. Consequently, under the language of section 7-10.2 of the Election Code, the Candidate was required to list her given name as 'Caroline Patricia' and her surname as 'Golden.' The Candidate’s failure to do so violated the terms of section 7-10.2 of the Election Code," 2020 IL App (1st) 200218-U, ¶28.

A dissent by Justice Bertina Lampkin agreed that the "name change" provisions of the statute had not been triggered, adding (2020 IL App (1st) 200218-U, ¶36):

[I]n conformance with section 7-10.2, Jamieson was not required to use the “formerly known as” designation on her petition and submit an affidavit attesting to the dates of a name change within the designated three-year time period because those “requirements do not apply to name changes resulting from *** marriage to assume a spouse’s surname.” See id. Under the plain terms of section 7-10.2, Jamieson’s use in her personal and professional life of her surname acquired by marriage, Golden, instead of her surname bestowed at birth, Jamieson, falls under the statutory exception of a name change resulting from marriage to assume a spouse’s surname.

Now, here's the part I don't understand.

As noted, the original Objections to Jamieson's petitions did not raise the "surname" issue, only the "name change."

And in her petition for review in the Circuit Court, the Objector persisted in her argument that the "Candidate changed her surname from 'Golden' to 'Jamieson,'" and therefore, she was subject to the "formerly known as" portion of the statute. But she also contended "that the Board’s interpretation of section 7-10.2 of the Election Code was 'legally faulty.' The Objector argued that, under the statute, the terms 'given name' and 'surname' have different meanings." 2020 IL App (1st) 200218-U, ¶12.

To my untrained, non-election law specialist's eye, that seems like a change in the Objector's position from that which was asserted in her original Objections.

And I don't see anything in the Objections, or in the Election Board's Decision, or in the Hearing Officer's Report and Recommended Decision (these being the documents I reviewed for this post) in which the "surname" issue is raised.

The Hearing Officer's Report and Recommended Decision does note, at pp. 3-4,

[I]n her Response to Candidate's Motion to Strike, Objector wanders far afield of her initial petition and alleges that Candidate does not have a right to ballot access because she engaged in fraudulent or deceptive activity by using her maiden name. As Objector did not raise these matters in her initial petition, they will not be considered. The law is clear that Objector may not amend her petition (See Cook County Officers Electoral Board Rules of Procedure, Rule 9; Weber v. Winnebago County Officers Electoral Board, 966 N.E.2d 462, 467 (2nd Dist., 2012). The only matter Objector raised in her petition (and the only matter of which Candidate received notice) is whether she was required to adhere to the name change provisions set out in §7-10.2.

If this is a correct statement of the applicable law, then I wonder how the Circuit Court and Appellate Court were able to consider a different issue than the one raised by the Objector's original papers and resolve it adversely to Jamieson.

Of course, in other areas of the law, parties are sometimes subject to limitations that do not apply to the courts. That may be the case here... but it wasn't stated. If that were really the rule here, it would seem rather harsh as applied, given the very tight timelines in election law cases.

The other thing that occurred to me, as a non-election law specialist, is that neither the Electoral Board, nor the Circuit Court, nor the Appellate Court had any case law interpreting §7-10.2 to work with. And yet, at least so far, the Appellate Court's Oberholtzer decision has been filed as a Rule 23 Order, meaning it is non-precedential and may not be cited in other cases.

This is not the place to address the shortcomings of Illinois Supreme Court Rule 23, at least as applied.

But it seems to me that the Oberholtzer case, whether precedential or not, must be seen as a 'shot across the bow' for many candidates, if not for this election cycle (since objections are closed), then for the future.

Two things seem certain to me.

First, Jamieson was not alone in trying to pick the most favorable name from those seemingly available. In this election cycle, an attorney listed on the Master Roll as Suzanne Alt is running for the countywide Larsen vacancy as Suzanne Therese McEneely, a name by which she was formerly known, according to ARDC. And 7th Subcircuit candidate Marcia O'Brien Conway was listed on the master roll as Marcia Organ when I first wrote about her campaign, last September (her ARDC listing has since been updated). I'm sure there are other examples; these were the ones that came to mind as I prepared this.

Second, if I thought I could use the name Jamieson for a St. Patrick's Day Primary, I sure as heck would try. I would prefer to use Bushmill Guinness Jamieson if I could (and, yes, I know the stimulating beverage is spelled Jameson, not Jamieson -- let's not quibble). I don't blame the candidate for trying; I am surprised the gambit failed.