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  • Writer's pictureTricia Babischkin

Overcoming Objections

In the last 2 days, our village had nearly 10 hours of election board hearings. Of all the things that came out over the last two days, I can say with certainty that we are a small village with big drama -- and I, for one, think that's unacceptable. So, I just want to take a moment and distill down what happened, what was said (and not said), and what the outcome is.

Incumbents Objection Hearing

Basis for the Objection: The objector pointed out process failures with all the incumbents petitions. These failures revolve around three basic issues:

  1. They all submitted their paperwork unbound to the clerk.

  2. They all retrieved their petitions (in some fashion) from the clerk and bound the originally submitted petition instead of going through the proper process to withdraw and resubmit.

  3. They all failed to submit the receipt for the Statement of Economic Interest -- interestingly though, they all submitted the actual statement to our village clerk when the form clearly states "file with the county"

What we heard in the hearings: The following are facts that were presented and confirmed during the hearing.

  1. Phil, incumbent Presidential candidate, used village property to bind his petition.

    1. NOTE: it clearly states in both the packet letter from the clerk AND the candidates guide that village resources may not be used in the submission of the petition

    2. NOTE: It clearly states in our village code that should an official of the village use village resources as part of his/her election campaign, it violates the Ethics Rules

  2. Phil, incumbent Presidential candidate, removed from the clerk's possession AND Village Hall two petitions for nomination.

    1. NOTE: It was noted that neither of the two candidates requested he do this.

  3. Dan, current Trustee and former P&Z member, has never filed a statement of economic interest with McHenry County.

    1. NOTE: This is a requirement of all village officials and must be renewed annually. I understand that Dan was appointed to the P&Z board in the Spring of 2020 and in nearly a year, he has not bothered to ever fill out this single form.

  4. Bill, sitting P&Z member, has never filed a statement of economic interest with McHenry County.

    1. NOTE: This is a requirement of all village officials. Bill was appointed to the P&Z board in June of 2019 (so nearly 18 months) and has not gotten around to filing this paperwork with the county.

  5. Both Phil and Pam (current Trustee) do have a Statement of Economic Interest on file with the county, though it is from the annual renewal.

    1. NOTE: Both claim that they had the receipt with them to file, but that they removed it from the packet when the clerk told them it was not needed. I was not there when Phil filed his packet, but I was there when Pam filed hers -- I could hear the entire conversation (or lack thereof) from my position in the foyer and I can assure you that 1) I did not see Pam remove a single piece of paper from her packet (while leaving in the full statement) and 2) I did not heard a single conversation regarding the receipt or statement of economic interest.

Outcome: It was as simple as the two incumbents who had never filed the statement of economic interest were deemed to have failed in properly filing and were removed from the ballot. The two who had previously filed, but failed to include the receipt in their nominating papers, were allowed to stay.

United4Lakewood Objection Hearing

Since this hearing involved me personally, I know far more of the details of this case. I was not involved in the previous and can only comment as an observer. Additionally, I was in the room while the hearing was going on, privy to body language, better sound and side conversations.

Basis for the Objection: Current Trustee Ryan Berman believed that not only were some of the signatures on our petitions forged; he felt that this showed a pattern of fraud and would disqualify our whole petitions. Here's the outline of the 4 objections:

In order for him to have actually gotten us thrown off the ballot, he absolutely had to prove fraud. There simply were not enough signatures to contest that would remove us on signature count alone. The problem is that proving fraud was a pretty high bar.

Problems with being Prepared: The problems begin pretty early on. It appears that being able to Google legal terms does not make you a lawyer. At our first hearing, we got a glimpse of the issues -- Mr. Berman was wholly unprepared to give paperwork to the board. I want to mention the giant pile of paper he walked into the first hearing with -- it was at least a ream of paper. Yes, when called on to present his motion to object to Trustee Odom on the board, he shuffled papers trying to collect the right numbers to give to everyone. (For what it's worth, he should have had at least 5 copies -- 1 for each member of the board, 1 for the board's attorney, 1 for the opposition's attorney and 1 for himself.)

This little problem on Saturday the 9th, got to be a BIG problem on Wednesday the 20th, because one of the biggest delays was the fact he not only didn't bring enough copies -- forcing the village to pay for his copying bill and having CAO Smith run copies for him throughout the early motions -- he also didn't have the copies organized by case. In fact, his small set of "evidence" was combined for all 4 cases forcing the board to actually number and label the exhibits and pages for him.

Tactic Change: Right before the hearing Mr. Berman dropped on our attorney an amendment to his Objection. Technically you can't amend. He could have clarified the ambiguous objections, but he attempted to add names that were not previously objected to. What was truly odd was he reduced the total objections down to less than half of the originals for each candidate -- with a mix of new and old. Without being able to add objections, I looked at the ones that carried over and got this count:

Since the count of signature issues is so low, Mr. Berman's new tactic was to claim that since we circulated at least one of the pages with an amended contested signature, we, the candidates, had committed fraud and were then deemed "unfit to hold public office." (Side note: specifically on my objection paperwork, he had to add a single name on a single page that I circulated in order to try to make this argument. And remember you can't add objections.)

This change in tactic is highly interesting because to my knowledge not a single one of the four of us has ever been charged with fraud (a class 4 degree felony that if convicted would carry the penalty for never holding public office in the state of IL).

Problems when you think you are Perry Mason: It appears that Mr. Berman thought that he could overcome his lack of evidence with surprise changes in tactics and last minute motions. The problem is that's not how this works. You see, if you are the objector you must show all your cards first and in a timely fashion so that the candidate (in essence the defendant) can rebut and form their defense. The US laws are written that someone is not required to guess at what they are being accused of and get the benefit of time to form their best defense. It doesn't make for great TV, but it makes for a more just legal system.

While I'm speaking of courtroom antics, I feel I need to share my opinion on the use of the 5th Amendment. What happened in the room was that Mr. Berman wanted to call Mike Fischer as the circulator as he was claiming that Mike had fraudulently circulated a petition in an effort to remove him from the ballot, not to have the page thrown out, but because he allegedly made a false statement on the circulator form. However, Mike's attorney had no intention of playing this game and decided to use the 5th Amendment to prevent Mr. Berman from harassing the candidate. While it resulted in the removal of that single page, Mike had more than enough signatures to stay on the ballot. In no way was that a reflection on Mike's character -- but more a reflection on the refusal to play games with Mr. Berman.

What Mr. Berman didn't know: Since the candidate never had to present his side of the case, Mr. Berman was not aware that all four of us had worked overtime to get affidavits from those accused in the original objection attesting to the validity of their signatures. We had at least 80% these to present on January 9th. So, had the board decided there was at least enough to hear the defense, he would have been presented with 9 signed and notarized affidavits attesting the their signatures. That would have left 9 signatures still contested. HOWEVER, during Mr. Berman's presentation he had previously withdrawn the objection to all but THREE signatures (and added a 4th -- which was highly questionable). There was an affidavit for one of them. So the math was Mr. Berman was trying to prove a pattern of fraud on 2 or 3 signatures.

Why the objection failed: When it is all said and done, we sat through one hearing and the board found that not only was there not enough evidence to proceed, they determined that the candidate didn't even need to present his case as Mr. Berman failed to meet the burden of evidence. Once faced with this, Mr. Berman declared that he could do math and realized that he wouldn't prevail and withdrew the balance of the objections.

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