Maksym v. Board of Election Commissioners of the City of Chicago ( 2011 )

FIRST DIVISION
FILED: January 24, 2011
No. 1-11-0033
WALTER P. MAKSYM and THOMAS L. ) APPEAL FROM THE CIRCUIT
McMAHON, ) COURT OF COOK COUNTY
)
Petitioners-Appellants, )
)
v. ) No. 2010 COEL 020
)
THE BOARD OF ELECTION )
COMMISSIONERS OF THE CITY OF )
CHICAGO, et al., )
(RAHM EMANUEL, ) HONORABLE
) MARK J. BALLARD,
Respondent-Appellee). ) JUDGE PRESIDING.
_________________________________________________________________
JUSTICE HOFFMAN delivered the judgment of the court, with
opinion.
Presiding Justice Hall concurred in the judgment and opinion.
Justice Lampkin dissented, with opinion.
OPINION
The petitioners, Walter P. Maksym, Jr., and Thomas L. McMahon,
filed written objections to the candidacy of the respondent, Rahm
Emanuel (the candidate), who seeks to be a candidate for Mayor of
the City of Chicago in the Municipal General Election to be held on
February 22, 2011. After an evidentiary hearing, the Board of
Election Commissioners of the City of Chicago (the Board) dismissed
the objections and ruled that the candidate was entitled to have
his name included on the ballot as a mayoral candidate. The
petitioners sought judicial review in the circuit court of Cook
County, which confirmed the decision of the Board. The petitioners
now appeal. For the reasons that follow, we reverse the circuit
court’s judgment, set aside the Board’s decision, and order that
No. 1-11-0033
the candidate’s name be excluded (or, if necessary, removed) from
the ballot for Chicago’s February 22, 2011, mayoral election.
Although the parties engaged in an extensive evidentiary
hearing prior to the Board’s decision, the pertinent facts are
largely undisputed on appeal. It suffices for our purposes to
summarize and adopt the hearing officer’s factual findings, which
the Board adopted and which we hereinafter refer to as the Board’s
findings. In so doing, we conclude that those findings were not
against the manifest weight of the evidence. See Cinkus v. Village
of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200,
210, 886 N.E.2d 1011 (2008).
The candidate was born in Chicago and, in December 1998,
purchased a Chicago home (the Hermitage house), which he still
owns. The candidate lived with his family in that home from 1998
through January 2009. On January 2, 2009, the candidate, who had
up to then served as a member of the United States House of
Representatives elected from the district that included the
Hermitage house, resigned his office in order to serve in
Washington, D.C., as Chief of Staff to the President of the United
States. After traveling to Washington, D.C., he and his spouse
purchased additional land adjoining their Chicago property.
From January through May 2009, the candidate lived in an "in-
law apartment" in Washington, D.C., while his family remained in
the Hermitage house. From June 2009 until October 1, 2010, the
candidate, and his family, lived in a Washington, D.C., house (the
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No. 1-11-0033
Woodley House) that was leased for the term spanning June 1, 2009,
through June 30, 2011. The family received their mail at the
Woodley house and moved most of their clothes and personal
belongings to Washington, D.C. They did, however, leave behind at
the Hermitage house several larger household items, including
televisions, a piano, and a bed, as well as several personal
possessions such as family heirlooms and books. The candidate’s
Hermitage house was leased to another family for the term of
September 1, 2009, through June 30, 2011.
At all relevant times, including the time he was in
Washington, D.C., the candidate continued to pay property taxes for
the Hermitage house, continued to hold an Illinois driver’s license
listing the Hermitage house as his address, continued to list the
Hermitage house address on his personal checks, and continued to
vote with the Hermitage house as his registered voting address. He
did, however, pay income tax in 2009 and 2010 to both Washington,
D.C., and Illinois.
On October 1, 2010, the candidate resigned his position of
Chief of Staff to the President of the United States and entered
into a lease to live in an apartment located on Milwaukee Avenue in
Chicago from October 1, 2010, through June 30, 2011. He has lived
in that apartment since October 1, 2010. In his testimony, the
candidate explained that he had always expected to serve as Chief
of Staff to the President for approximately 18 to 24 months before
returning to live in the Hermitage house.
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From these facts, the Election Board concluded that the
candidate met the qualification for candidacy, contained in
subsection 3.1-10-5(a) of the Illinois Municipal Code (Municipal
Code) (65 ILCS 5/3.1-10-5(a) (West 2008)), mandating that he have
"resided in" Chicago for the one year preceding the February 22,
2011 mayoral election. The Board based this conclusion on the
evidence that the candidate maintained significant contacts with
Chicago, intended to return to Chicago and to the Hermitage house,
and had lived in Washington, D.C., solely for the purpose of
working for the President. The petitioners filed a petition for
judicial review in the circuit court, and, following the circuit
court’s confirmation of the Board’s decision, they now appeal.
The standards for our review of an electoral board decision
mirror those applicable to review of an administrative agency
decision. Cinkus, 228 Ill. 2d at 209-10. Thus, for any given
issue, our standard of review, which embodies the level of
deference we afford the agency on that issue, depends on whether
the issue is one of law, one of fact, or a mixed question of law
and fact. AFM Messenger Service, Inc. v. Department of Employment
Security, 198 Ill. 2d 380, 390, 763 N.E.2d 272 (2001). An
electoral board's decisions on questions of law are not binding on
a reviewing court, which will review such questions under the
nondeferential de novo standard. Cinkus, 228 Ill. 2d at 210-11.
An electoral board's findings of fact, however, are deemed prima
facie true and correct and will not be overturned on appeal unless
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No. 1-11-0033
they are against the manifest weight of the evidence. Cinkus, 228
Ill. 2d at 210; 735 ILCS 5/3-110 (West 2008). An electoral board's
rulings on mixed questions of law and fact--questions on which the
historical facts are admitted, the rule of law is undisputed, and
the only remaining issue is whether the facts satisfy a statutory
standard with which the Board has expertise--will not be disturbed
on review unless clearly erroneous. Cinkus, 228 Ill. 2d at 211.
The issues in this appeal distill essentially to two: whether
the candidate meets the Municipal Code’s requirement that he have
"resided in the municipality at least one year next preceding the
election" (65 ILCS 5/3.1-10-5(a) (West 2008)), and, if not, whether
he is exempt from that requirement under the Election Code
provision stating that "no elector *** shall be deemed to have lost
his or her residence *** by reason of his or her absence on
business of the United States" (10 ILCS 5/3-2 (West 2008)). Each
of these issues presents, first, a legal question requiring
construction of the relevant statutory provisions, and, second,
assuming the Board applied the correct standard (see Du Page County
Airport Authority v. Department of Revenue, 358 Ill. App. 3d 476,
498 n.4, 831 N.E.2d 30 (2005)), a mixed question of law and fact
regarding the Board’s application of that standard. We review the
legal questions de novo and any mixed questions under the clearly
erroneous standard.
We begin by analyzing the statutory requirements to be a
candidate for municipal office, which are located in subsection
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3.1-10-5(a) of the Municipal Code:
"A person is not eligible for an elective municipal
office unless that person is a qualified elector of the
municipality and has resided in the municipality at least one
year next preceding the election or appointment ***." 65 ILCS
5/3.1-10-5(a) (West 2008).
In its decision, to determine whether the candidate met the
Municipal Code’s requirement that he have "resided in" the
municipality for one year, the Board applied the test for residency
that has been used for voter qualification under the Election Code.
This approach is supported by several appellate court decisions
that, without discussion, equate residency requirements imposed on
voters with requirements that a candidate "resided in" his or her
political unit. See e.g., People ex rel. Madigan v. Baumgartner,
355 Ill. App. 3d 842, 847-48, 823 N.E.2d 1144 (2005) (stating only
that it would treat the terms as synonymous "because eligibility to
run for office is closely linked to the ability to vote within a
particular jurisdiction"); Walsh v. County Officers Electoral Board
of Cook County, 267 Ill. App. 3d 972, 976, 642 N.E.2d 843 (1994)
(assuming implicitly that the terms were synonymous); Delk v. Board
of Election Commissioners of the City of Chicago, 112 Ill. App. 3d
735, 738, 445 N.E.2d 1232 (1983).
Neither the Board nor the parties have, however, referred us
to any supreme court opinion ratifying, adopting, or directly
addressing this approach. The only cited supreme court case to
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No. 1-11-0033
approach the issue is Smith v. People ex rel. Frisbie, 44 Ill. 16(1867), a quo warranto action decided under the presumption that
the candidate had a right to the office to which he had been
appointed and in which the court required the objectors to
establish the candidate’s disqualification by "clear and
satisfactory" proof. See Smith, 44 Ill. at 24-25. We know of no
similar presumption applicable to this case, and the objectors here
bore the less stringent burden to prove the candidate’s
disqualification by a preponderance of the evidence. See Board of
Election Commissioners of the City of Chicago, Rules of Procedure
10 ("[T]he objector must bear the burden of proving by operation of
law and by a preponderance of the *** evidence *** that the
objections are true.").
In addition, although the supreme court’s discussion in Smith
was based nominally on principles of "residence," it appears from
its analysis that it actually applied concepts of domicile.
Despite the facts that the officeholder had left Illinois with his
family and had rented out his Illinois home, the supreme court
concluded, based solely on the officeholder’s intent to return,
that he retained his "residence" in Illinois. See Smith, 44 Ill.
at 24-25. This intent-based analysis is the defining
characteristic of the principle of domicile, a legal status that,
once acquired, can be "retained, animo solo, by the mere intention
not to change it and adopt another." Hayes v. Hayes, 74 Ill. 2d
312, 314 (1874). Since Smith was decided, however, our supreme
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No. 1-11-0033
court has explained unequivocally that "it is elemental that
domicile and residence are not synonymous." Pope v. Board of
Election Commissioners, 370 Ill. 196, 202, 18 N.E.2d 214 (1938).
As the supreme court further explained in Pope, the legal concept
of "residence" requires a permanent abode. Pope, 370 Ill. at 200.
Accordingly, to the extent that Smith might establish that a voter
or candidate could meet a residency requirement through intent
alone, without any permanent abode, the supreme court has since
abandoned Smith’s approach. For this reason, along with the above-
discussed reasons, we do not view Smith as controlling this case.
Aside from Smith, the candidate urges that the test to be
applied in determining whether he has resided within Chicago for
one year prior to the February 22 mayoral election is the same as
the test for determining residency under the Election Code. He
bases this argument, in part, upon the assertion that the Election
Code and the Municipal Code should be interpreted in pari materia.
See Cinkus, 228 Ill. 2d at 218-19. The doctrine of in pari
materia, however, does not dictate that terms in separate statutes
be given identical meanings; it dictates only that separate
statutes bearing on the same subject matter be given harmonious
interpretation. E.g., Gerard v. White, 356 Ill. App. 3d 11, 17,
826 N.E.2d 517 (2005). We, therefore, do not view the doctrine of
in pari materia as a bar to distinguishing the Election Code’s
residency requirement from the Municipal Code’s one-year "reside
in" requirement for candidates. In fact, as we discuss below, we
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No. 1-11-0033
view the doctrine, which is actually an outgrowth of the more
general rule that courts should consider statutory provisions in
light of the entire relevant statutory scheme (Gerard, 356 Ill.
App. 3d at 17), as support for our conclusion that the requirements
of the Election Code and the Municipal Code, although
distinguishable, may nevertheless be read in harmony.
The supreme court has not directly addressed the notion that
the legislature intended the Municipal Code’s one-year "reside in"
requirement for candidates to coextend with the residency
requirement for voters, but the court has at least once noted the
distinction between candidate and voter residency requirements. In
People ex rel. Moran v. Teolis, 20 Ill. 2d 95, 169 N.E.2d 232(1960), a party argued that a voter residency requirement should be
extended based on the policy embodied by a precursor to the
Municipal Code section now at issue, which provided, as it provides
now, that a candidate for municipal office be a qualified elector
and have resided in the area at least one year preceding the
election. Moran, 20 Ill. 2d at 104 (discussing Ill. Rev. Stat.
1957, ch. 24, par. 9-87). The supreme court answered that the
statute "differentiate[d] between 'electors' and those persons who
may qualify for municipal office." Moran, 20 Ill. 2d at 104.
With the exception of Smith, which we have already
distinguished, the supreme court has limited its analysis of
residency requirements to voter qualification cases. See Clark v.
Quick, 377 Ill. 424, 426-27, 36 N.E.2d 563 (1941) ("residence for
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No. 1-11-0033
voting purposes means an actual place of abode" (emphasis added);
" 'a real and not imaginary abode, occupied as his home or
dwelling, is essential to satisfy the legal requirements as to the
residence of a voter' " (emphasis added)); Coffey v. Board of
Election Commissioners of East St. Louis, 375 Ill. 385, 387, 31
N.E.2d 588 (1940) ("[a] residence, for voting purposes, is not lost
by temporary removal with the intention to return" (emphasis
added)); Park v. Hood, 374 Ill. 36, 43, 27 N.E.2d 838 (1940) ("[a]
real and not an imaginary abode, occupied as his home or dwelling,
is essential to satisfy the legal requirements as to the residence
of a voter" (emphasis added)); Pope, 370 Ill. at 198-99 ("The
determination of this question requires a review of the
qualifications for registration and voting" (emphasis added));
Anderson v. Pifer, 315 Ill. 164, 146 N.E. 171 (1924) ("Whether a
college student is entitled to vote" based on residence is a
question of fact (emphasis added)). Consequently, we have neither
a current supreme court directive, nor persuasive appellate court
reasoning, compelling us to treat candidate residency requirements
in the same manner as voter residency requirements, and we have
some indications from the supreme court that the requirements might
diverge. We must, therefore, ourselves interpret the Municipal
Code’s use of the phrase "resided in" to determine if it should be
construed as being synonymous with, or different from, the Election
Code’s residency requirements for voters.
We begin this task by resort to familiar principles of
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statutory interpretation. For a court interpreting a statute, the
primary goal is to ascertain and give effect to the intention of
the legislature, and the best indicator of that intent is the
statute’s language, given its plain and ordinary meaning. Cinkus,
228 Ill.2d at 216.
As noted, the operative language at issue requires that a
potential candidate have "resided in" the municipality for one year
next preceding the election. In its verb form, "reside" generally
means, among other things, "to dwell permanently or continuously,"
or to "have a settled abode for a time." Webster’s Third New
International Dictionary 1931 (1993). The word is considered to be
synonymous with "live, dwell, sojourn, lodge, stay, put (up), [and]
stop," but it "may be the preferred term for expressing the idea
that a person keeps or returns to a particular dwelling place as
his fixed, settled, or legal abode." Webster’s Third New
International Dictionary 1931 (1993).
These definitions are not interchangeable for our purposes:
our selection of the synonym "live" as a fair definition of
"resided in" would defeat the candidate’s eligibility to run for
office, because he most certainly "lived" outside Chicago for a
large part of the statutory one-year period. On the other hand, our
selection of a conception of "resided in" more akin to the idea of
a permanent abode a person keeps or to which he plans to return--
the definition the Board seems to have employed--would lend much
greater support to the candidate’s position. The question for us,
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then, becomes which of these definitions the legislature meant to
invoke with its use of the phrase "reside in" in the Municipal
Code.
In interpreting a statute, a court should consider, in
addition to the statutory language, the reason for the law, the
problems to be remedied, and the objects and purposes sought by the
law. People v. Donoho, 204 Ill. 2d 159, 171-72, 788 N.E.2d 707(2003). Our research into legislative purpose reveals that
candidate "reside in" qualifications of the type now at issue date
to our State’s first constitution, which imposed upon candidates
for the offices of state representative and senator the requirement
that they have "resided" within the area for 12 months (or one
year) prior to their election and imposed upon lieutenant governor
candidates the requirement that they have "resided" within the
State for two years preceding their election. See Ill. Const.
1818, art. II, §2, §6; Schedule §13. Similar "reside in"
qualifications have appeared, both in Illinois’ constitutions and
in its statutes, since 1818. See e.g., Ill. Const. 1848, art. III,
§3, §4; 1861 Ill. Laws 267; 1917 Ill. Laws 258.
Although it lacks precedential force (see Bryson v. News
America Publications, Inc., 174 Ill.2d 77, 95, 672 N.E.2d 1207(1996)), the decision in People v. Ballhorn, 100 Ill. App. 571, 573
(1901), provides what we view as a reasonable interpretation of the
purpose underlying such candidate "reside in" requirements.
Ballhorn explains that those requirements ensure "that those who
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represent the local units of government shall themselves be
component parts of such units." People v. Ballhorn, 100 Ill. App.
571, 573 (1901). As Ballhorn further explains, requirements that
candidates "reside in" the area they would represent "can only be
truly served by requiring such representatives to be and remain
actual residents of the units which they represent, in
contradistinction from constructive residents. A mere constructive
resident has no better opportunities for knowing the wants and
rightful demands of his constituents, than a non-resident, and is
as much beyond the wholesome influence of direct contact with them.
*** In [the candidate residency statute] the language is not, shall
be a resident, but it is, shall 'reside within' ***." Ballhorn,
100 Ill. App. at 573. Although nearly 200 years of technological
advances since Illinois’ first candidate "reside in" requirements
may have obviated much of their necessity, the legislature has not
seen fit to alter the relevant language. We believe, therefore,
that the initial purpose of the "reside in" requirement for
candidates, and the failure of the legislature to alter that
language in the current Municipal Code, strongly indicates that the
phrase "resided in" as used in the Municipal Code requires actual,
not constructive, residence.
Another familiar principle of statutory interpretation teaches
that a "statute should be evaluated as a whole, with each provision
construed in connection with every other section." Cinkus, 228
Ill. 2d at 216-17. For our purposes, this maxim requires that we
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consider not only subsection 3.1-10-5(a) of the Municipal Code, but
also any other relevant portions of the statute.
Subsection 3.1-10-5(a) of the Municipal Code sets forth two
qualifications for candidates: it states that a candidate must be
"a qualified elector of the municipality and [must have] resided in
the municipality at least one year next preceding the election."
65 ILCS 5/3.1-10-5(a) (West 2008). These two qualifications are
stated separately and in the conjunctive.
The first part of the conjunctive--the "qualified voter"
requirement--invokes the qualifications for electors stated in
sections 3-1 and 3-2 of the Election Code. See 10 ILCS 5/3-1, 3-2
(West 2008). In pertinent part, those statutes provide as follows:
"§ 3-1. Every person *** who has resided in this State
and in the election district 30 days next preceding any
election therein *** and who is a citizen of the United
States, of the age of 18 or more years is entitled to vote at
such election for all offices and on all propositions." 10
ILCS 5/3-1 (West 2008).
and
"§ 3-2. (a) A permanent abode is necessary to constitute
a residence within the meaning of Section 3-1. No elector or
spouse shall be deemed to have lost his or her residence in
any precinct or election district in this State by reason of
his or her absence on business of the United States, or of
this State." 10 ILCS 5/3-2(a) (West 2008).
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In Park v. Hood, our supreme court held:
"It is well settled that the terms 'residence' and
'permanent abode,' as employed in [the Election Code], are
synonymous. [Citations.] A real and not an imaginary abode,
occupied as his home or dwelling, is essential to satisfy the
legal requirements as to the residence of a voter. One does
not lose residence by temporary removal with the intention to
return, or even with a conditional intention of acquiring a
new residence, but when one abandons his home and takes up his
residence in another county or election district, he loses his
privilege of voting in the district from which he moved.
[Citations.] The question of residence is largely one of
intention, and a voter is competent to testify as to his
intention, although such testimony is not necessarily
conclusive." Park, 374 Ill. at 43.
From the admitted facts in this case, we find that the
candidate clearly satisfied the qualifications to be an elector for
the February 22, 2011, municipal election. Without addressing the
question of whether the Hermitage house constituted the candidate’s
permanent place of abode while it was under lease, we conclude that
the candidate clearly falls within the exception to section 3-1
articulated in subsection 3-2(a) (see Pope, 370 Ill. at 199);
namely, that he absented himself from the City of Chicago on
business of the United States and therefore did not lose the voter
residency status that he had theretofore established in Chicago.
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Having determined that the candidate satisfies the requirement
to be an elector, we must still address the question of whether he
has "resided in" the City of Chicago for at least one year next
preceding the February 22, 2011, mayoral election; the second
requirement for candidacy. 65 ILCS 5/3.1-10-5(a) (West 2008).
As we have observed, the "reside in" requirement is stated
separately from, and in addition to, the requirement that he be a
qualified elector of Chicago in order to be a candidate for
municipal office. The fact that the two requirements are stated
separately and in the conjunctive leads to the inference that the
legislature intended that they be considered separately from, and
in addition to, each other.
This inference is bolstered by language from the remainder of
section 3.1-10-5. Subsection 3.1-10-5(d) provides that:
"If a person (i) is a resident of a municipality
immediately prior to the active duty military service of that
person or that person’s spouse, (ii) resides anywhere outside
of the municipality during that active duty military service,
and (iii) immediately upon completion of that active duty
military service is again a resident of the municipality, then
the time during which the person resides outside the
municipality during active duty military service is deemed to
be time during which the person is a resident of the
municipality for purposes of determining the residency
requirement under subsection (a)." 65 ILCS 5/3.1-10-5(d)
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(West 2008).
For the point that the Municipal Code’s "reside in" requirement is
separate from the residency requirement for an elector, we find
particularly interesting subsection 3.1-10-5(d)’s concluding
language that its exception applies "for purposes of determining
the residency requirement under subsection (a)." Subsection 3.1-10-
5(a) contains only one explicit residency requirement: that a
candidate have "resided in the municipality for one year." Thus,
subsection 3.1-10-5(d)’s reference to "the residency requirement
under subsection (a)" must refer to the explicit one-year candidate
residency requirement contained in subsection 3.1-10-5(a) and not
the voter residency requirements set forth in sections 3-1 and 3-2
of the Election Code.
Additionally, subsection 3.1-10-5(d), which we quote above,
uses the words "resident" and "reside" to different effect. The
subsection uses the word "resident" first to describe the concept
of legal residence, by referring to a military serviceperson who
"is a resident of a municipality." Just after that reference,
however, the subsection uses the word "reside" to refer to the
serviceperson’s act of "resid[ing] anywhere outside of the
municipality." This usage of the word "reside" does not denote the
concept of legal residence, but rather the act of actually living
somewhere outside the municipality.
Our interpretation that, in using the phrase "resides anywhere
outside of the municipality" in subsection 3.1-10-5(d), the
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No. 1-11-0033
legislature intended to refer to the act of living somewhere
outside the municipality is further supported by the wording of the
very next clause of that subsection. The clause refers to a person
becoming "again a resident of the municipality" (emphasis added)
upon his or her return after military service. If the military
serviceperson must "again" become a resident of the municipality,
then it logically follows that the person lost his or her resident
status at some time prior thereto. The only manner in which
subsection (d) contemplates a person losing residency status is by
living outside of the municipality. Thus, subsection 3.1-10-5(d)
assumes that a person who is absent from a municipality will not
meet the "reside in" requirement of subsection 3.1-10-5(a), but, by
reason of the provisions thereof, a compliant military
serviceperson is deemed to have been a resident during the period
of absence.
Basic rules of statutory construction provide that "where the
same words appear in different parts of the same statute, they
should be given the same meaning unless something in the context
indicates that the legislature intended otherwise." McMahan v.
Industrial Comm’n, 183 Ill. 2d 499, 513, 702 N.E.2d 545 (1998).
Under this rule, the fact that the legislature used the word
"reside" to mean actually live in subsection 3.1-10-5(d) of the
Municipal Code strongly indicates that it intended the same meaning
in subsection (a).
The candidate resists this interpretation by arguing that
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subsection 3.1-10-5(d) "addresses the situation in which a service
member *** abandons his municipal residence and establishes
residence elsewhere." We have two difficulties with the
candidate’s reading of subsection (d). Our first difficulty is
that it would interpret the statute to apply to an almost
imperceptibly narrow class of individuals; namely, those
servicepeople who somehow establish full legal residency, that is,
a permanent place of abode outside the municipality, then, after
having formed an intent to remain outside the municipality, take
the first opportunity to return. Our interpretation of the
subsection, on the other hand, would have it apply in the logically
feasible, and presumably quite common, situation in which a
serviceperson’s duty draws him or her from the municipality, and,
immediately upon completion of his or her military assignment, the
serviceperson returns.
Our second difficulty with the candidate’s reading of
subsection 3.1-10-5(d) is that it is belied by the legislative
history underlying the subsection. During debate for the senate
bill whose passage added subsection (d) to section 3.1-10-5 of the
Municipal Code (see 95th Gen. Assem., Senate Bill 253, 2007 Sess.),
Senator Luechtefeld, one of the senators who presented the bill,
explained the original version as follows:
"Senate Bill 253 provides that if a person meets all the
requirements necessary to run for municipal office, but their
time as an active duty member of the military interrupted the
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No. 1-11-0033
residency requirement, they shall be permitted to run for that
office. A *** situation occurred in my district where an
individual was in Iraq and *** he came back, wanted to run for
municipal office, but did not meet the one-year residency
requirement. This would simply allow them to come back to
that same district, the same ward, and run as if they had been
there." 95th Gen. Assem., Senate Proceedings, Marcy 29, 2007,
at 13 (statements of Senator Luechtefeld).
Senator Luechtefeld described the final version of the bill in
similar terms:
"If you’ll remember, I had a bill that we passed unanimously
out of here to allow a person to go into the military and ***
be gone maybe a year or two and then come back to a community
and run for office, that he would not lose his eligibility
because of residency. The House has changed the bill a little
bit, but it passed over there unanimously also." 95th Gen.
Assem., Senate Proceedings, May 31, 2007, at 37-38 (statements
of Senator Luechtefeld).
This legislative history supports our interpretation that
subsection 3.1-10-5(d) of the Municipal Code uses the word "reside"
to mean actually live rather than having legal voting residence,
and it further undercuts the candidate's argument to the contrary.
Based on the foregoing analysis, we conclude that, under
subsection 3.1-10-5(a) of the Municipal Code, a candidate must meet
not only the Election Code’s voter residency standard, but also
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must have actually resided within the municipality for one year
prior to the election, a qualification that the candidate
unquestionably does not satisfy. Because the candidate does not
satisfy that standard, he may be eligible for inclusion on the
ballot only if he is somehow exempt from the Municipal Code’s
"reside in" requirement.
To that end, the candidate argues that, regardless of whether
he meets the candidate eligibility requirements of subsection 3.1-
10-5(a) of the Municipal Code, he nonetheless may be qualified as
a candidate by virtue of section 3-2 of the Election Code, which
provides as follows:
"(a) A permanent abode is necessary to constitute a
residence within the meaning of Section 3-1. No elector or
spouse shall be deemed to have lost his or her residence in
any precinct or election district in this State by reason of
his or her absence on business of the United States, or of
this State." 10 ILCS 5/3-2 (West 2008).
According to the candidate, he falls within this exception
because his absence from Chicago was attributable to his service as
the Chief of Staff to the President of the United States. We agree
with the candidate that his service constituted "business of the
United States" and thus that this exception applies to him. We
disagree, however, with his position that the exception saves his
candidacy. In our view, the exception embodied by section 3-2 of
the Election Code applies only to voter residency requirements, not
21
No. 1-11-0033
to candidate residency requirements.
We base this conclusion largely on the plain language of the
Election Code. That plain language limits the reach of the
"business of the United States" exception to "elector[s]" or their
spouses; it makes no mention of "candidates." Further, as we have
noted, we must interpret statutes "as a whole, with each provision
construed in connection with every other section." Cinkus, 228
Ill. 2d at 216-17. Section 3-2's "business of the United States"
exception is housed not only in the Election Code, but in a portion
of the Election Code dealing exclusively with voter qualification,
in fact in an Article titled "Qualification of Voters." See 10
ILCS 5/3-1 through 3-5 (West 2008). As explained above, the
Municipal Code sets forth two qualifications for candidates: they
must meet the Election Code’s standards for a "qualified voter,"
and they must have "resided in" the municipality for one year
preceding the election. The location of section 3-2's "business of
the United States" exception--in the Election Code, and in an
article of the Election Code dedicated exclusively to voter
qualification--supports the conclusion that the exception applies
only to the Election Code’s "qualified voter" standard, and not to
any supplemental candidate qualifications located outside the
Election Code.
We find further support for our construction of the reach of
section 3-2 in the rule that a court, when possible, should read a
statute so as to give effect to all of its provisions and render
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No. 1-11-0033
none meaningless or superfluous. E.g., Grafner v. Dept. Of
Employment Security, 393 Ill. App. 3d 791, 803, 914 N.E.2d 520(2009). As we have noted above, among its provisions regarding
candidate qualification, the Municipal Code contains an exception
that, for purposes of the candidate residency requirement of
subsection 3.1-10-5(a) of the Municipal Code, allows those in
active military service to be deemed residents of a municipality
during the pendency of their military service even when they reside
outside the municipality during their service. 65 ILCS 3.1-10-5(d)
(West 2008). If section 3-2 of the Election Code applied to
candidates, then its statement that a person will not lose his or
her residence "by reason of his or her absence on business of the
United States" would certainly apply to relax the candidate
residency qualifications on those who serve in the nation’s armed
forces. If we were to interpret section 3-2 as applying to
candidates as well as voters, then, subsection 3.1-10-5(d) of the
Municipal Code would become wholly redundant. Our duty to give
meaning to statutory enactments where possible, like our duty to
follow the plain language of the statutes we interpret, therefore
compels the conclusion that section 3-2 of the Election Code was
intended to create a residency exception for voters, not
candidates.
We are not the first to draw the distinction between voters
and candidates for purposes of the type of exception contained in
section 3-2 of the Election Code. The exception traces to
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No. 1-11-0033
Illinois’ founding charter, which imposed a residency requirement
on state representatives but excepted those who were "absent on the
public business of the United States." Ill. Const. 1818, art. II,
§3. Illinois’ next constitution, in 1848, stated the exception
three times: once for state representatives (Ill. Const. 1848, art.
III, §3), once for state senators (Ill. Const. 1848, art. III, §4),
and once for voters (Ill. Const. 1848, art. VI, §5). The 1848
Constitution thus separately delineated "business of the United
States" exceptions for candidates and for voters. Illinois’ next
constitution, in 1870, retained the "business of the United States"
exception as it related to voters (see Ill. Const. 1870, art. VII,
§4), yet conspicuously omitted the exception as it related to
candidates. (The voter exception was later incorporated into the
Election Code (see 1959 Ill. Laws 2168) and was not included in our
current constitution.) This history tells us that, for purposes of
the "business of the United States" residency exception, this State
has for over 150 years recognized a distinction between voters and
candidates and has retained the exception only for voters. That
revelation, combined with our interpretation of the language of
section 3-2 and its interrelation with subsection 3.1-10-5(d) of
the Municipal Code, convinces us that section 3-2's "business of
the United States" exception applies only to voters, not to
candidates. Accordingly, it cannot avail the candidate here.
For the foregoing reasons, we conclude that the candidate
neither meets the Municipal Code’s requirement that he have
24
No. 1-11-0033
"resided in" Chicago for the year preceding the election in which
he seeks to participate nor falls within any exception to the
requirement. Accordingly, we disagree with the Board’s conclusion
that he is eligible to run for the office of Mayor of the City of
Chicago. We reverse the circuit court’s judgment confirming the
Board’s decision, set aside the Board’s decision, and, pursuant to
Supreme Court Rule 366(a)(5) (Ill. Sup. Ct. R. 366(a)(5) (eff. Feb.
1, 1994)), order that the candidate’s name be excluded (or, if
necessary, removed) from the ballot for the February 22, 2011,
Chicago mayoral election.
Reversed.
JUSTICE LAMPKIN, dissenting.
I dissent. I would affirm the judgment of the circuit court,
which confirmed the decision of the Board. The candidate is
entitled to have his name included on the ballot as a mayoral
candidate because he has satisfied the requirements of section 3.1-
10-5 of the Municipal Code where he is both a qualified elector of
Chicago and has resided in Chicago at least one year next preceding
the election.
I disagree with the majority’s contrary conclusion that the
candidate is not eligible to be on the ballot because that
conclusion is based on an analysis of two issues–establishing
residency and a statutory exemption to the residency
requirement–that are not relevant to the resolution of this case.
25
No. 1-11-0033
The majority acknowledges that the candidate had established a
residency in Chicago long before 2009 where he had both a physical
presence here and the intent to remain. The majority failed,
however, to move past the issue of establishing residency to the
relevant analysis, which turns on whether the candidate’s
residency, which he had indisputably held, was abandoned when he
worked in Washington, D.C., and leased his Chicago home.
The Board’s ruling–that the candidate in 2009 and 2010 did not
abandon his status as a resident of Chicago and, thus, remained a
resident of Chicago even though he was largely absent from this
city from January 2009 until October 1, 2010–was not clearly
erroneous. Intent is an issue of fact (Delk, 112 Ill. App. 3d at
738), and the majority acknowledges that the Board’s fact findings
were not against the manifest weight of the evidence. This
acknowledgment should have ended this case, and resulted in this
court affirming the circuit court’s judgment, which confirmed the
Board’s ruling that the preponderance of the evidence established
that the candidate never formed an intent to either change or
terminate his residence in Chicago, or establish his residence in
Washington, D.C., or any place other than Chicago.
Because the candidate had established his Chicago residency,
it is presumed to continue until the contrary is shown, and the
burden of proof is on the person who claims that there has been a
26
No. 1-11-0033
change. Hatcher v. Anders, 117 Ill. App. 3d 236, 239 (1983). In
the foundational case Kreitz v. Behrensmeyer, 125 Ill. 141 (1888),
the supreme court stated:
“We have frequently held that when a party leaves his
residence, or acquires a new one, it is the intention
with which he does so that is to control. Hence the
shortest absence, if, at the time, intended as a
permanent abandonment, is sufficient, although the party
may soon afterwards change his intention; while, on the
other hand, an absence for months or even years, if all
the while intended as a mere temporary absence for some
temporary purpose, to be followed by a resumption of the
former residence, will not be an abandonment.” Kreitz,
125 Ill. at 195.
The majority does not acknowledge Kreitz even though it has
been the leading case defining “residence” since its issuance 122
years ago. To the extent the majority addresses the long-held
principle that a party’s intention when he leaves or acquires his
residence largely controls the determination of whether he has
abandoned the residence, the majority distorts this principle (see
discussion of Smith below). Then, the majority simply reads the
principle out of its analysis, choosing instead to adopt a
completely new standard.
27
No. 1-11-0033
In order to have changed one’s residence, a person, both in
fact and intention, must have abandoned the former residence and
acquired a new one by actual residence with the intent to make it
a permanent home. See Frisbie, 44 Ill. 16; Welsh v. Shumway, 232
Ill. 54, 77 (1907); Baumgartner, 355 Ill. App. 3d at 848.
Affirmative acts must be proved to sustain the abandonment of a
residence, and a temporary absence, no matter how protracted, does
not equate with abandonment. Hughes v. Illinois Public Aid Comm’n,
2 Ill. 2d 374, 380-81 (1954); Davis v. Davis, 9 Ill. App. 3d 922,
926 (1973); Hatcher, 117 Ill. App. 3d at 239.
Because a person may have only one residence for voting
purposes, when a person has established a physical presence in two
locations, he must make a decision about which location he intends
to make his permanent residence. Baumgartner, 355 Ill. App. 3d at
849. As long as he does not seek to “exercise the rights of
property or of citizenship incident to or resulting from permanent
residence” at his new location but, instead, continues to exercise
those rights, including the right to vote, at his original
location, he remains a resident at the original location.
Baumgartner, 355 Ill. App. 3d at 849, quoting Welsh, 232 Ill. at
88-89; see also Tuthill v. Rendleman, 387 Ill. 321, 342-43 (1944).
Application of these well-established principles to the
instant case compels the conclusion that the candidate did not
28
No. 1-11-0033
abandon his Chicago residence while he worked in Washington, D.C.
According to the record, the candidate testified that he intended
to work in Washington, D.C., for no more than two years.
Consistent with that intent, he leased his Chicago home on a short-
term basis. Although he and his wife were initially reluctant to
lease their Chicago home, they heeded the advice of their friend
and real estate consultant to lease the home during their absence
for safety purposes. The candidate’s intent to work in Washington,
D.C., for the limited time frame and then return to his home in
Chicago was confirmed by the testimony of three personal friends.
The candidate initially rented an apartment in Washington,
D.C., but later rented a home when his family joined him during the
summer of 2009. The lease terms of both his Chicago residence and
the Washington, D.C., home coincided with the school year of the
candidate’s children in order to provide the least disruption
possible to their education. Prior to the family’s move to
Washington, D.C., the candidate’s wife and her friends filled 100
boxes with belongings that were then left in a locked storage area
in the basement of the Chicago home. The candidate described the
stored items as the family’s most valuable possessions, including
his wife’s wedding gown, heirloom china, family photograph albums,
an heirloom coat brought by the candidate’s grandfather when he
immigrated to the United States, the clothes and birth outfits of
the candidate’s children, and their school projects and report
29
No. 1-11-0033
cards.
Additionally, the candidate’s family returned to Chicago two
or three times for physician’s appointments and celebratory
gatherings. The candidate’s wife maintained contact with the
lessees of the Chicago home in order to facilitate repairs within
the home and to schedule three or four occasions for the piano of
the candidate’s family to be tuned in their absence.
Furthermore, the candidate never voted in Washington, D.C.,
never changed his driver’s license to Washington, D.C., never
registered his car in Washington, D.C., never purchased property in
Washington, D.C., never conducted personal banking in Washington,
D.C., and never demonstrated an intent to sell his Chicago home.
The challengers failed to counter the candidate’s evidence,
and the Board found that the weight of this evidence established
that the candidate intended to maintain his residence in Chicago
throughout the time of his temporary employment in Washington, D.C.
Since the majority could not meddle with the Board’s fact
findings or its ruling based on the proper application of the
manifest weight and clearly erroneous standards, the majority
attacks the Board’s ruling from another angle. Specifically, the
majority promulgates a new and undefined standard for determining
candidate residency requirements despite the plethora of clear,
relevant and well-established precedent that has been used by our
circuit courts and election boards for decades. In order to launch
30
No. 1-11-0033
its new standard, the majority first attempts to clear the relevant
precedent from the field.
The majority attempts to discard the rulings in Baumgartner,
Walsh, and Delk, three of the most recent appellate court decisions
interpreting the term “has resided in” in the context of candidacy.
According to the majority, those decisions are of little value
because they “equate[d]” the voter and candidate residency
requirements without an adequate discussion.
I disagree with the majority’s characterization of the
analysis in Baumgartner, Walsh, and Delk. Surely the author of
this opinion, Justice Hoffman, must have agreed with the analysis
and holding in Walsh because he was one of the concurring justices
on that opinion. In Walsh, he agreed that physical presence and
intent to remain at a place as a permanent home created a residence
for purposes of candidacy. Walsh, 267 Ill. App. 3d at 976. In
Walsh, Justice Hoffman agreed that intent was a factual
consideration and that Delk, which he now dismisses, supported his
position. Id.
Neither Baumgartner, nor Walsh, nor Delk has been overruled or
even called into question. Indeed, the supreme court denied
petitions for leave to appeal in both Baumgartner and Walsh, and no
petition was ever filed in Delk. Accordingly, these three cases
remain undisturbed. Baumgartner is a Fourth District case, and
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No. 1-11-0033
Walsh and Delk are First District cases. Although the principle of
stare decisis does not require an appellate court to follow the
decisions of its sister divisions or other districts, the cases at
issue remain persuasive.
The majority completely ignores Dillavou, a recent Fourth
District case that addressed candidate residency, even though
Walsh, on which Justice Hoffman previously concurred, favorably
cited Dillavou and discussed it at length. Walsh, 267 Ill. App. 3d
at 978-79. I recognize that the question in Dillavou was whether
the candidate at issue had established a residence in the required
district; however, the case cites approvingly to supreme court
election cases such as Clark and Kreitz. Dillavou, 260 Ill. App.
3d at 132. Of particular relevance to the case before this court,
Dillavou quotes the language of Clark and Kreitz, which provides
that, once established, a residence will not be lost by an
individual’s absence from that residence unless the individual
demonstrates such an intent. Dillavou, 260 Ill. App. 3d at 132-33.
The majority’s attempt to maneuver around the supreme court
decision in Smith is futile. Smith cannot be distinguished from
the relevant issue the majority should have addressed here, i.e.,
whether the candidate abandoned his Chicago residence. Smith
reviewed whether the appellant was eligible for his appointment to
the judiciary in accordance with the constitutional requirement to
32
No. 1-11-0033
have been a resident of Illinois for five years next preceding his
appointment. Smith, 44 Ill. at 23-24. Smith focused on the
relevant issue, i.e., whether the appellant lost his Illinois
residency where he had resided in Illinois for many years before he
left to live and work in Tennessee for several months and then
returned to Illinois. Smith, 44 Ill. at 24. Smith determined the
prosecutor failed to prove by clear and satisfactory evidence that
the appellant lost his Illinois residency. Smith, 44 Ill. at 24-
25.
The majority is wrong when it contends the Smith decision was
“based solely on the officeholder’s intent to return.” To the
contrary, the court, in reaching its determination, considered “all
of the circumstances in evidence,” and not solely the prosecution’s
failure to establish that the appellant never intended to abandon
his Illinois residence. Smith, 44 Ill. at 24-25. Specifically,
the court considered the appellant’s frequent declarations that his
move to Tennessee was only an experiment and he would return to
Illinois if he found that he could not remain with satisfaction
among the Tennesseans. Smith, 44 Ill. at 24. Further, the
appellant refused his partner’s request to vote in Tennessee for a
particular candidate, saying he did not want to lose his Illinois
citizenship. Smith, 44 Ill. at 24. The appellant also refused to
sell his Illinois law books, saying that he would probably return
33
No. 1-11-0033
to Illinois and would need them in his practice. Smith, 44 Ill. at
24. Moreover, the appellant only rented his residence when he left
Illinois. Smith, 44 Ill. at 24.
The majority speculates that the supreme court in Smith
nominally discussed principles of residence while it actually
applied concepts of domicile. Such speculation is baseless and
refuted by the text. Although the terms and concepts of residence
and domicile were referenced in the prosecution’s presentation of
the facts and law (Smith, 44 Ill. at 22-23), in its opinion, the
Smith court spoke of residence and never used the term domicile
(Smith, 44 Ill. at 24-25). Furthermore, there is no support for
the majority’s assertion that the Smith analysis was based solely
on intent, which supposedly is “the defining characteristic of the
principle of domicile.” Smith clearly stated “that, when the
residence is lost, it is by a union of intention and acts ***.”
(Emphasis added). Smith, 44 Ill. at 25. Clearly, Smith,
consistent with Park, analyzed the question of residence not solely
based on intent but, rather, “largely” based on intent. Park, 374
Ill. at 43.
The majority imagines that the supreme court did not know the
difference between residence and domicile until it issued Pope, and
that Pope signifies that the court “has since abandoned” that
solely intent-based approach for which Smith supposedly stands.
34
No. 1-11-0033
This is pure flight of fancy. Pope neither cites nor criticizes
Smith. Instead, Pope confirms the well-established legal premise
that once a residence has been established, “a person, by temporary
removal of himself and his family into another State with the
intention to return, will not thereby lose his residence in this
State provided he does no act from which the acquisition of a new
residence may be inferred.” Pope, 370 Ill. at 200. The majority
has failed to abide by the principle, stated in Pope, that once a
residence is established, as was uncontested here, the court must
look to the facts to determine whether the individual abandoned
that residence or intended to return to it. Pope, 370 Ill. at 203.
The majority’s analysis goes further astray when it construes
the statutory requirements to be a candidate for municipal office.
The Municipal Code expressly provides that “[t]he general election
law applies to the scheduling, manner of conducting, voting at, and
contesting of municipal elections.” 65 ILCS 5/3.1-10-10 (West
2008). In addition, the supreme court has held that provisions of
the Election Code and Municipal Code may be considered in pari
materia for purposes of statutory construction. Cinkus, 228 Ill.
2d at 218-19.
Accordingly, a court that is construing provisions of the
Municipal Code concerning candidate residency requirements should
also consider the similar provisions of the Election Code
35
No. 1-11-0033
concerning voter residency requirements. Well-established
precedent shows that courts have construed the “has resided in”
phrase used in section 3.1-10-5(a) of the Municipal Code
consistently with the “has resided in” phrase used in section 3-1
of the Election Code. See Smith, 44 Ill. 16; Delk, 112 Ill. App.
3d at 738; Walsh, 267 Ill. App. 3d at 976; Baumgartner, 355 Ill.
App. 3d at 847-48. Nevertheless, the majority, completely
unsupported by citation to any case law, arrives at different
meanings for the terms “residence” and “has resided in” as used in
section 3.1-10-5(a) of the Municipal Code and sections 3-1 and 3-
2(a) of the Election Code.
The Municipal Code and the Election Code both require a
candidate or a voter to have “resided in” the relevant locale for
eligibility. Compare 65 ILCS 5/3.1-10-5(a) (West 2008) to 10 ILCS
5/3-1 (West 2008). More importantly, as the majority agrees, the
Municipal Code expressly relies on the Election Code to define
“qualified elector.” Specifically, section 3.1-10-5(a) of the
Municipal Code states that a candidate for municipal office must be
a qualified elector and have resided in the municipality at least
one year next preceding the election. 65 ILCS 5/3.1-10-5(a) (West
2008). Consequently, the reader must look at section 3-1 of the
Election Code to determine what constitutes a qualified elector.
Section 3-1 then informs the reader that a qualified elector
36
No. 1-11-0033
is a person who “has resided in” Illinois and the election district
30 days next preceding the election. 10 ILCS 5/3-1 (West 2008).
Furthermore, section 3-2(a) of the Election Code informs the reader
that a “permanent abode is necessary to constitute a residence
within the meaning of Section 3-1.” 10 ILCS 5/3-2(a) (West 2008).
This cross-reference in section 3-2(a), which discusses
“residence,” to section 3-1, which discusses how long a person “had
resided in” an election district, in order to define the term
residence seriously undermines the majority’s position that the
meaning attributed to the term “residence” does not inform a
court’s construction of the phrase “has resided in.”
Section 3-2(a) clearly indicates that “residence” defines the
term “has resided in” in section 3-1. While section 3-2(a) is
perhaps limited to the definition of a “qualified elector” as used
in section 3.1-10-5(a) of the Municipal Code, “residence” is used
to define “has resided in.” As stated by the majority, the basic
rules of statutory interpretation require that the same words used
within a statute should be given the same meaning unless the
context dictates otherwise. McMahan, 183 Ill. 2d at 513.
Nothing in the text or context of these statutes distinguishes
“has resided in” as used to define a “qualified elector” from “has
resided in” as used to define the length of time a candidate must
have been resident in order to run for office. Moreover, if the
37
No. 1-11-0033
legislature had intended the phrase “has resided in” to mean
actually lived in, as the majority proposes, then the legislature
surely would have chosen to use the more innocuous word live rather
than the verb reside and the noun residence, which are charged with
legal implications.
Moran does not support the majority’s proposition that the
supreme court has indicated voter and candidate residency
requirements might diverge. In Moran, the supreme court rejected
the arguments of the plaintiff, who challenged the validity of the
village’s incorporation and the election of its new officers.
Moran, 20 Ill. 2d 95. The plaintiff complained that several people
who had voted for the new officers were not qualified electors
because, according to the plaintiff, Illinois public policy and
legislative intent must have required the electors to have resided
in the area for more than 30 days where the statute required a
municipal officer to have resided in the area at least one year
next preceding his election. Moran, 20 Ill. 2d at 104.
The supreme court rejected the plaintiff’s argument, noting a
statutory differentiation between an elector and a candidate for
municipal office. Moran, 20 Ill. 2d at 104. That distinction,
however, was not based upon the nature of their residency but,
rather, on the length of time necessary to establish their
residency. Specifically, the relevant statute defined “an
38
No. 1-11-0033
‘elector’ as one who has resided in the State for one year, in the
county for 90 days and in the area or precinct for 30 days” whereas
the candidate was required to have “resided in the area at least
one year next preceding his election or appointment.” Id. The
majority’s attempt to read this temporal distinction between
candidates and electors as some sort of indication from the supreme
court that the majority may embark on a revision of Illinois law
concerning candidate residency requirements is indefensible.
The majority attempts to support its creation of a completely
new candidate residency standard with an exhaustive (or, rather,
exhausting) discussion of section 3.1-10-5(d) of the Municipal Code
regarding the military exception. The candidate here was not in
the military and did not attempt to claim an exemption under
section 3.1-10-5(d). Nevertheless, while the majority spends five
pages of its opinion on a subsection of the Municipal Code that has
no applicability to the present case, the majority does not write
a single sentence explaining how it defines “actually resided in.”
It is patently clear that the majority fails to even attempt to
define its newly discovered standard because it is a figment of the
majority’s imagination.
How many days may a person stay away from his home before the
majority would decide he no longer “actually resides” in it? Would
the majority have us pick a number out of a hat? A standard which
39
No. 1-11-0033
cannot be defined cannot be applied. If the majority had picked
even an arbitrary number of days that voters need not sleep in
their own beds before they violated this new arbitrary standard,
then at least we would be able to apply this new standard. Should
a court consider just the number of days a voter or candidate is
absent or are there other relevant factors under the new standard?
Apparently, only the majority knows but, for some reason, fails to
share it with those charged to abide by it if they want to be a
candidate for municipal office.
The majority’s promulgation of a new undefined standard cuts
off the various boards of elections and circuit courts of this
State from over 100 years of precedent. Clearly, the majority must
posit the existence of a new standard in order to avoid the
application of the manifest weight standard to the Board’s fact
findings and application of the clearly erroneous standard to the
Board’s ruling that the candidate did not intend to abandon his
residence. The majority says, as it must, that it accepts the
Board’s findings of fact. Therefore the majority must fault the
Board for failing to apply as the correct legal principle of
candidate residency a standard that the majority just conjured out
of thin air.
If the majority truly believes that “actually resides” is the
correct standard to apply, the majority should remand this case
back to the Board for a further hearing. Merely saying the
40
No. 1-11-0033
candidate “unquestionably does not satisfy” its newly-minted
standard, when the ink of its creation has barely dried on the
paper, cannot be a proper substitution for providing a hearing.
The majority’s application of a new standard in the instant case
shows a careless disregard for the law shortly before an election
for the office of mayor in a major city. One can hardly imagine
how future potential candidates for municipal office in Illinois
will navigate the maze invented by the majority’s amorphous
standard. The majority’s new standard is ill-reasoned and unfair
to the candidate, voters, and those of us who are charged with
applying the law.
While I strongly believe that the majority’s holding is
completely erroneous, if the majority were to apply it only
prospectively, rather than retroactively to this candidate, there
would be sufficient time for our supreme court to thoughtfully
review it. The majority’s decision disenfranchises not just this
particular candidate, but every voter in Chicago who would consider
voting for him. Well-settled law does not countenance such a
result.
Finally, the majority’s decision certainly “involves a
question of such importance that it should be decided by the
Supreme Court.” Supreme Court Rule 316 (Official Reports Advance
Sheet No. 26 (Dec. 20, 2006), R. 316, eff. Dec. 6, 2006.
Consequently, I believe this panel should certify this case under
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No. 1-11-0033
Supreme Court Rule 316, which would permit review of the majority’s
decision in the most expeditious manner possible. The majority,
however, has refused to certify this case under Rule 316. As of
the writing of this dissent, there is less than one month before
the election and even less time for absentee ballots to be mailed
out and returned. An opinion of such wide-ranging import and not
based on established law but, rather, on the whims of two judges,
should not be allowed to stand.
For the reasons stated, I would affirm the judgment of the
circuit court, which confirmed the decision of the Board.
42