Decision expected Monday in Gallagher and Murray case

Thursday's argument in Gallagher and Murray v. Cook County Officers Electoral Board drew a pretty large crowd to Judge Marcia O'Brien Conway's Daley Center Courtroom. Both sides suggested they could make their arguments in 10 minutes, and neither did, but the extra time was well spent, listening to three good attorneys making excellent arguments in the best traditions of civility and professionalism.

I do not mean to sound flip or frivolous. Obviously this is a matter of great importance, particularly to the candidates, both those that have been removed from the ballot, and their erstwhile opponents, who stand to lose their uncontested path to election if the Electoral Board is reversed in this case. Still, it was a pleasure to watch and listen to Ed Mullen, for Judges Gallagher and Murray, and Burt Odelson and Michael Kasper, for the objectors, as they made their respective cases.

The news here is that Judge Conway took the matter under advisement, indicating that she will make a ruling Monday. According to conversations I had with counsel and with knowledgeable observers, however Judge Conway rules, whoever she rules against will take the case to the Appellate Court. FWIW will report Judge Conway's decision as soon as possible.

Unsuprisingly, the parties' arguments were consistent with those made before the Electoral Board. This is as it must be, of course. In reporting here those items from Thursday's argument that caught my particular attention, I do not mean to suggest any deviation from the prior course laid out by either side or any undue or new emphasis placed on these items.

As would be expected, Mullen used the words 'substantial' or 'substantially' many times in laying out his case, noting that the word 'substantially' is even used in the very first sentence of §7-10 of the Election Code, 10 ILCS 5/7-10. Odelson agreed that the word is used there, but only to modify a petition form that has actully been long abandoned.

I could not possibly immerse myself in the cases to the degree that counsel in this case have; often enough, one or more of them was counsel in the cases cited. But, it seems to me that 'substantial compliance' here applies, or does not, regardless of where the word 'substantially' appears in the statute. The presence or absence of that word in the statute does not appear, in my reading to date, to have been dispositive in any of the many cases in which 'substantial compliance' with various provisions of the Election Code have been deemed sufficient. I believe Mullen made this point in his final rebuttal.

I suppose I should not have been surprised that the parties differ on the applicable standard of review. The candidates assert that review of the Electoral Board's decision should be de novo. The objectors, on the other hand, suggested that the issue here presents a mixed question of law and fact.

This potentially makes a huge difference: Citing Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill.2d 200, 209-211 (2008), the Supreme Court in Corbin v. Schroeder, 2021 IL 127052, ¶32, explained, "Our standard of review of the Electoral Board’s decision depends on the question presented. Id. at 209-10. Where the appeal presents a question of fact, we will not overturn the Electoral Board’s decision unless it is against the manifest weight of the evidence. Id. at 210. Where the appeal presents a question of law, we proceed de novo. Id. And where the appeal concerns the Electoral Board’s determination on a mixed question of law and fact, that decision will not be disturbed unless it is clearly erroneous."

Here is an example of where framing may be dispositive. There are no disputed facts here. The circulator's oath says what it says. If that means the issue is one of statutory construction only, de novo review will apply. Hutchinson v. Illinois State Board of Elections, 2022 IL App (1st) 220678, ¶23 ("proper interpretation of a statute is a question of law that we review de novo").

On the other hand, as the Supreme Court stated in Beggs v. Board of Education of Murphysboro Community Unit School Dist. No. 186, 2016 IL 120236, ¶50, "A mixed question of fact and law examines the legal effect of a given set of facts. [Citation.] Put another way, a mixed question asks whether the facts satisfy the statutory standard or whether the rule of law as applied to the established facts is or is not violated." So, just because the facts are undipsuted, it does not necessarily mean that the question to be determined is solely a question of law.

The Supreme Court took another stab at explaining the distinction in Goodman v. Ward, 241 Ill.2d 398, 406 (2011): "Our court has held that where the historical facts are admitted or established, the controlling rule of law is undisputed and the issue is whether the facts satisfy the statutory standard, the case presents a mixed question of fact and law for which the standard of review is 'clearly erroneous.' Cinkus, 228 Ill.2d at 211. We have also held, however, that where the historical facts are admitted or established, but there is a dispute as to whether the governing legal provisions were interpreted correctly by the administrative body, the case presents a purely legal question for which our review is de novo. Hossfeld v. Illinois State Board of Elections, 238 Ill.2d at 423."

In Goodman, a case involving the residency of a judicial subcircuit candidate in Will County, the Supreme Court concluded that the de novo standard of review would apply. While there is older case law that says that, even under de novo review, "some 'deference' should be given 'to the interpretation given by the agency charged with the administration of the statute'," Rita v. Mayden 364 Ill.App.3d 913, 919 (2006) ("THE COACH" case), and while this idea has surfaced in more recent cases as well (e.g., Akin v. Smith, 2013 IL App (1st) 130441, ¶3)(Electoral Board's interpretation is entitled to "some deference, as it is the entity charged with interpreting the Electoral Code," citing Rita), Goodman suggests otherwise. In Goodman, the Supreme Court stated that the "de novo standard [is one] we have characterized as 'independent and not deferential'," (241 Ill.2d at 406) (internal quotation marks edited).

At Thursday's argument, Michael Kasper provided the court with some deep background about the General Assembly's adoption of the 4th, 2022-only circulator's oath language.

He explained that this was included in the legislation that became P.A. 102-0692 because the Illinois State Board of Elections Candidate's Guide had included a form petition in which date range language was used. This language was quickly added into the legislation to prevent disputes arising where candidates and their attorneys followed the ISBE petition format -- 'covering' the ISBE's error, as my notes of Kasper's argument reflect, although that is my understanding and summarization of what I got from his argument on this point, not in any way a direct quote.

I can't verify everything that Kasper said on the provenance of P.A. 102-0692. But we know that the first day for circulation of petitions in the 2022 election cycle was January 13. I can confirm that P.A. 102-0692 sprang to life full grown, as Senate Amendment 2 to HB 1953, on January 5, 2022. The legislative history shows that the 'amendment' was adopted by the Senate on January 5, and also by the House that same day, and signed into law by the Governor on January 7.

It is interesting stuff, certainly. But is it truly significant in this case?

The objectors insist that Gallagher and Murray were trying to update an abandoned 2022-only circulator's oath option for their 2024 petitions. But Gallagher and Murray say that is not what they were doing. Their position is that the date range set out in their circulator's oath substantially complied with the third option for such oaths under §7-10 -- and I think their case will stand or fall on whether the last and final court to hear their case agrees or disagrees with that position.