Maksym v. Board of Elections Commissioners

Docket No. 111773.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
WALTER P. MAKSYM et al., Appellees, v. THE BOARD OF
ELECTION COMMISSIONERS OF THE CITY OF CHICAGO et
al., Appellants.
Opinion filed January 27, 2011.
JUSTICE THOMAS delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Garman, Karmeier, and Theis
concurred in the judgment and opinion.
Justices Freeman and Burke specially concurred, 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 appealed, and the
appellate court reversed the circuit court’s judgment, set aside the
Board’s decision, and ordered that the candidate’s name be excluded
(or, if necessary, removed) from the ballot for Chicago’s February 22,
2011, mayoral election. No. 1–11–0033. We allowed the candidate’s
petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).
Although the parties engaged in an extensive evidentiary hearing
prior to the Board’s decision, the pertinent facts are largely
undisputed on appeal. The appellate court summarized and adopted
the Board’s factual findings. In doing so, the court concluded that the
factual findings were not against the manifest weight of the evidence.
We agree with the appellate court that the Board’s factual 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 (2008). Accordingly, we set forth the facts largely as
summarized in the appellate court opinion.
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
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,
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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.
From these facts, the 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 had “resided in” Chicago for the one
year preceding the February 22, 2011, mayoral election. The Board
noted that the objectors and candidate agreed that “residence” in this
context means “permanent abode,” and that two elements are required
for a permanent abode: (1) physical presence; and (2) an intent to
remain there as a permanent abode. The Board cited case law
establishing that, once a permanent abode is established, residence
continues until abandoned. The Board concluded that the objectors
had failed to establish that the candidate abandoned his residence,
basing its 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. Among the findings made
by the Board were the following:
–“The preponderance of this evidence establishes that the
Candidate never formed an intention to terminate his residence
in Chicago; never formed an intention to establish his
residence in Washington, D.C., or any place other than
Chicago; and never formed an intention to change his
residence.”
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–“The preponderance of this evidence further establishes
that throughout the relevant period in 2009 and 2010 the
Candidate maintained significant contacts in and with the City
of Chicago and the State of Illinois, including continuing
ownership of real estate; continuing ownership of valuable
personal property of kinds that a reasonable person would
store at the place he deemed to be his permanent residence
and to which he planned to return.”
–“The preponderance of this evidence, particularly
including the coincidental terms of the leases and extensions
of leases of the Hermitage House and the Woodley House
compel the inference that the Candidate and his spouse
intended to return to occupy the Hermitage House and abide
there.”
–“The preponderance of this evidence establishes that the
Candidate intended his presence in Washington, D.C., solely
for the purpose of permitting him to discharge what he
perceived to be a duty to serve the United States in the
capacity of the Chief of Staff to the President of the United
States.”
–“The weight of the evidence shows that the Objectors
failed to bear their burdens of proof and persuasion that the
Candidate intended, in 2009 or 2010, to effect any change in
his residence or to be anything other than a resident of
Chicago for electoral purposes.”
The petitioners filed a petition for judicial review in the circuit
court, and the court confirmed the Board’s decision. The circuit court
agreed with the Board that the relevant question was whether the
candidate abandoned his Chicago residence when he became Chief of
Staff to the President of the United States. The court determined that
the Board’s finding that the objectors had failed to show that the
candidate abandoned his Chicago residence was not clearly erroneous.
The objectors appealed, and the appellate court reversed the
decision of the circuit court and set aside the decision of the Board.
The court noted that the Board’s factual findings are deemed prima
facie true and correct and may be overturned only if they are against
the manifest weight of the evidence. Moreover, an electoral board’s
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rulings on mixed questions of law and fact–questions on which the
undisputed law is applied to the historical facts–are reviewed under
the clearly erroneous standard. No. 1–11–0033, slip op. at 5 (citing
Cinkus, 228 Ill. 2d at 210-11). The court determined, however, that
it first needed to resolve a question of statutory construction to which
the de novo standard of review would apply: what is the meaning of
the phrase “resided in” in the section of the Municipal Code requiring
that a candidate must have “resided in the municipality at least one
year next preceding the election” (65 ILCS 5/3.1–10–5(a) (West
2008)). No. 1–11–0033, slip op. at 4-5.
The court noted that the Board had used the definition of
residence that is used in voter qualification cases (permanent abode).
Moreover, the court acknowledged that using the same definition for
voter qualification and candidate qualification was an approach that
was supported by all of the published appellate court case law on the
issue. However, the court was unconvinced that this was the correct
test because it could not find a published supreme court opinion
ratifying, adopting, or directly addressing this approach. No.
1–11–0033, slip op. at 6. The court acknowledged that in Smith v.
People ex rel. Frisbie, 44 Ill. 16 (1867), this court used an intent-
based approach in determining a candidate residency question, but
found this unpersuasive because a different standard of proof was
applicable in that case.1 The court also noted that Smith was a quo
warranto action in which the candidate already held office and that
there was a presumption that he was entitled to hold the office to
which he had been appointed. The court stated that it was unaware of
any “similar presumption applicable to this case.”2 No. 1–11–0033,
1
The appellate court left it to the reader to discern how the standard of
proof was in any way relevant to what standard the court used to determine
the merits of the residency issue.
2
Because the election has yet to occur, there is, of course, no presumption
that the candidate is entitled to the office he seeks. Nevertheless, there is a
similar presumption applicable to the specific question before us, in that the
candidate is presumed to be a Chicago resident. See In re Moir’s Estate, 207
Ill. 180, 186 (1904), in which this court explained that “when a residence is
once established the presumption is that it continues.”
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slip op. at 7.
The court also found unpersuasive the candidate’s argument that
the Election Code defines residence as “permanent abode” (10 ILCS
5/3–2 (West 2008)) and that this court has expressly directed that the
Municipal Code and the Election Code be construed in pari materia.
See Cinkus, 228 Ill. 2d at 218-19. The court determined that the in
pari materia doctrine meant only that the statutes should be given a
harmonious construction, not necessarily an identical one. No.
1–11–0033, slip op. at 8. The court found more relevant than
Cinkus–a two-year-old case mandating in pari materia construction–a
quote from a 1960 case, People ex rel. Moran v. Teolis, 20 Ill. 2d 95,
104 (1960), in which this court stated that the statute at issue
“differentiate[d] between ‘electors’ and those persons who may
qualify for municipal office.”3 No. 1–11–0033, slip op. at 9.
In other words, the court determined that it was painting on a
blank canvas, with no applicable authority to guide it other than the
Moran quote. The court ultimately determined that, as used in section
3.1–10–5(a), “resided in” does not refer to a permanent abode, but
rather where a person “actually live[s]” or “actually reside[s].” No.
1–11–0033, slip op. at 20-21. However, the court never explained
what it meant by these terms, other than to say that the candidate does
not qualify as a resident if this definition is used.
The court arrived at this definition by employing the following
reasoning. First, the court relied on People v. Ballhorn, 100 Ill. App.
571 (1901), a decision that it acknowledged had no precedential
authority under Bryson v. New America Publications, 174 Il. 2d 77,
1935 (1996) (appellate court decisions filed prior to 1935 have no
binding authority), for the proposition that the purpose of candidate
residency requirements is that candidates be component parts of the
units they represent, and that this can be accomplished only by actual,
rather than constructive, residency. No. 1–11–0033, slip op. at 12-13.
Next, the court noted that section 3.1–10–5 of the Municipal Code
sets forth two qualifications for candidates and that they are stated in
3
This court did so, however, only in the context of setting forth the
different time limits for the respective residency requirements. See Moran,
20 Ill. 2d at 104.
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the conjunctive: 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.”4 The court determined that the
candidate was clearly a qualified elector because, without regard to
whether the Hermitage House constituted the candidate’s permanent
place of abode while it was under lease, the candidate qualified for the
exception set forth in section 3–2(a) of the Election Code, which
states that “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.” The court held that the candidate was on the business of the
United States when he was employed as Chief of Staff to the President
of the United States. No. 1–11–0033, slip op. at 14-15.
The court next took up the meaning of “resided in.” The court
acknowledged that section 3.1–10–5(a) contains a residency
requirement, but held that its use of the term “resided in” means
something other than residency as that term is traditionally
understood. The court supported this interpretation by contending that
the verb “resides” and the noun “resident” are used to entirely
different effect in section 3.1–10–5(d), which applies to people (or
their spouses) on active military duty. The court believed that the
terms “resident” and “resides” connote different meanings in this
subsection, and thus must have different meanings elsewhere in
section 3.1–10–5. According to the court, “resides” in subsection (d)
4
In pertinent part, the relevant statutes for determining whether one is a
qualified elector provide that:
“§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).
“§3–2. (a) A permanent abode is necessary to constitute a
residence within the meaning of Section 3–1. No electors 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).
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means “actually live,” so “resided in” in subsection (a) must also mean
“actually live.” No. 1–11–0033, slip op. at 16-20. Finally, the court
determined that the “business of the United States” exception stated
in section 3–2 of the Election Code applied only to the qualification
of electors and did not apply to the candidate qualifications set forth
in section 3.1–10–5 of the Municipal Code. No. 1–11–0033, slip op.
at 20-24.
Accordingly, although the appellate court found that the candidate
unquestionably was a qualified elector, it concluded that he did not
meet the residency requirement of section 3.1–10–5 because he did
not “actually reside” or “actually live” in Chicago for the entire year
next preceding the election. The court did so without ever explaining
what it meant by the terms “actually reside” or “actually live.” The
court ordered the candidate’s name excluded or removed from the
ballot.
Justice Lampkin dissented. Justice Lampkin disagreed with nearly
every aspect of the majority’s decision and would have applied the
traditional definition of residence that has been established in Illinois
law. No. 1–11–0033, slip op. at 26-28 (Lampkin, J., dissenting).
Applying this standard, the dissent would not have found the Board’s
decision clearly erroneous. No. 1–11–0033, slip op. at 28-30
(Lampkin, J., dissenting).
We allowed the candidate’s petition for leave to appeal and stayed
the appellate court’s decision pending this appeal.
ANALYSIS
Before proceeding to the merits, we wish to emphasize that, until
just a few days ago, the governing law on this question had been
settled in this State for going on 150 years. In Smith v. People ex rel.
Frisbie, 44 Ill. 16 (1867), this court was faced with a question
remarkably similar to that which is before us today. Smith, a longtime
resident of Illinois, had been appointed a circuit judge by the governor
of Illinois, and a quo warranto action was brought to remove Smith
from that office on the grounds that he had not been an Illinois
resident “for at least five years next preceding *** his appointment,”
as the Illinois Constitution then required. In support of their action,
the objectors pointed to the fact that Smith had moved with his family
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to Tennessee for eight months during the relevant five-year residency
period.
In concluding that Smith’s eight-month sojourn to Tennessee did
not result in an abandonment of his established Illinois residency, this
court explained that, once established, “residence is lost *** by a
union of intention and acts” and that “the intention in many cases will
be inferred from the surrounding circumstances.” Smith, 44 Ill. at 24.
This court then examined the “surrounding circumstances” and found
that (1) Smith frequently declared that his move to Tennessee was
only an experiment; (2) just two months after arriving in Tennessee,
Smith expressed a desire to return to Illinois as soon as became
feasible; (3) Smith at no time expressed an unqualified intention to
remain in Tennessee; (4) Smith declined to vote in a Tennessee
election because “he desired to do no act by which he would lose his
citizenship in [Illinois]”; (5) he refused to sell his Illinois law books
prior to his move, saying that “he would probably return, and would
then need them in his [Illinois] law practice”; and (6) he “only rented
his [Illinois] residence when he left.” Smith, 44 Ill. at 23-24. This
evidence, the court concluded, was insufficient to “establish a
presumption of loss of residence.” Smith, 44 Ill. at 24-25.
Since Smith was decided, the principles established in it have been
consistently and faithfully applied in the candidacy context by the
appellate court of this State. See, e.g., People ex rel. Madigan v.
Baumgartner, 355 Ill. App. 3d 842, 847 (2005) (“ ‘[W]here a person
leaves his residence and goes to another place, even if it be another
[s]tate, with an intention to return to his former abode, or with only
a conditional intention of acquiring a new residence, he does not lose
his former residence so long as his intention remains conditional.’ ”
(quoting Pope v. Board of Election Commissioners, 370 Ill. 196, 201
(1938)); Walsh v. County Officer Electoral Board, 267 Ill. App. 3d
972, 976 (1994) (whether candidate abandoned old residence in favor
of new residence presents a question of intent, which is measured both
by the “surrounding circumstances” and the candidate’s declarations
thereof); Dillavou v. County Officers Electoral Board, 260 Ill. App.
3d 127, 132 (1994) (whether candidate abandoned established
residence is a question of intent, and “ ‘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
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residence, will not be an abandonment’ ”) (quoting Kreitz v.
Behrensmeyer, 125 Ill. 141, 195 (1888)). Moreover, the principles
established in Smith and uniformly followed since were the very
principles relied upon by the hearing officer, the Board, and the circuit
court below.
Thus, from April 1867 through January 24 of this year, the
principles governing the question before us were settled. Things
changed, however, when the appellate court below issued its decision
and announced that it was no longer bound by any of the law cited
above, including this court’s decision in Smith, but was instead free to
craft its own original standard for determining a candidate’s residency.
See No. 1–11–0033, slip op. at 6-8 (dismissing the foregoing
authority in its entirety). Thus, our review of the appellate court’s
decision in this case begins not where it should, with an assessment of
whether the court accurately applied established Illinois law to the
particular facts, but with an assessment of whether the appellate court
was justified in tossing out 150 years of settled residency law in favor
of its own preferred standard. We emphatically hold that it was not.
The Smith principles control this case, plain and simple. With the
sole exception of the prescribed time period, the provision at issue in
Smith is identical to one the issue at here. Both provide that, in order
to be eligible for public office, a person must reside in the relevant
jurisdiction for some period “next preceding the election or
appointment.” And in both cases, the sole issue presented is whether
the person seeking to hold the office in question had abandoned his
Illinois residency by virtue of an extended relocation to another part
of the country. In answering that question in Smith, this court
explained that, once established, “residence is lost *** by a union of
intention and acts” and that “the intention in many cases will be
inferred from the surrounding circumstances.” Smith, 44 Ill. at 24. The
court then examined the surrounding circumstances, including both
Smith’s words and Smith’s actions, to determine whether Smith had
abandoned his Illinois residency. Ultimately, the court concluded that
he had not. In every relevant way, the analysis that this court
employed in Smith is the very analysis that the hearing officer, the
Board, and the circuit court below employed, and they were correct
in doing so. Smith has never been overruled, and it is directly on point.
For two reasons, the appellate court concluded that Smith was not
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controlling authority in this case. Neither of these reasons is
convincing. First, the court noted that, because Smith involved a quo
warranto action, the burden of proof on the objecting party was
higher (clear and convincing) than it is for the objectors in this case
(preponderance of the evidence). No. 1–11–0033, slip op. at 7. While
this is undeniably true, we fail to see how it renders Smith’s residency
analysis irrelevant, as burden of proof does not impact what a party
must prove, but only how well the party must prove it. The appellate
court’s other basis for rejecting Smith was its determination that,
“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.” No. 1–11–0033, slip op. at
7. In other words, the appellate court concluded that Smith is not
binding because this court did not know what it was talking about
when it wrote it. Leaving to one side the propriety of such a
determination, two things quickly belie the appellate court’s
conclusion on this point: (1) the issue in Smith arose under the Illinois
Constitution’s residency provision, and consequently anything this
court said on this point was, by definition, in relation to residency; and
(2) as will be demonstrated below, this court has applied similar
principles in virtually every setting in which it has construed a legal
residency requirement.
All of that said, and putting aside the appellate court’s conclusion
that Smith is not binding in this case, the appellate court’s residency
analysis remains fundamentally flawed. This is because, even under
traditional principles of statutory analysis, the inevitable conclusion is
that the residency analysis conducted by the hearing officer, the
Board, and the circuit court was proper.
The issue in this case is whether the candidate met the statutory
requirements to run for and hold elected municipal office, as set forth
in section 3.1–10–5(a) of the Municipal Code (65 ILCS 5/3.1–10–5(a)
(2008)). That section states, in relevant part:
“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)
(2008).
For present purposes, the critical question is what does this section
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mean by “reside[ ] in”? This presents a question of statutory
interpretation, which is a question of law subject to de novo review
(In re Estate of Dierkes, 191 Ill. 2d 326, 330 (2000)) and the rules
governing our inquiry are familiar. Our primary goal when interpreting
the language of a statute is to ascertain and give effect to the intent of
the legislature. Devoney v. Retirement Board of the Policemen’s
Annuity & Benefit Fund, 199 Ill. 2d 414, 424-25 (2002). The plain
language of a statute is the best indication of the legislature’s intent.
In re Christopher K., 217 Ill. 2d 348, 364 (2005). Where the statutory
language is clear and unambiguous, we will enforce it as written and
will not read into it exceptions, conditions, or limitations that the
legislature did not express. In re Christopher K., 217 Ill. 2d at 364. 5
As Smith demonstrates, this court very early on announced the
principles that would inform residency analysis in the context of
eligibility to hold public office. And since Smith, this court has
consistently applied similar residency principles in a variety of other
contexts, most especially in the context of voting. From these cases,
several well-settled principles emerge. First, to establish residency,
two elements are required: (1) physical presence, and (2) an intent to
remain in that place as a permanent home. Hughes v. Illinois Public
Aid Comm’n, 2 Ill. 2d 374, 380 (1954) (citing voting cases). Second,
once residency is established, the test is no longer physical presence
but rather abandonment. Indeed, once a person has established
residence, he or she can be physically absent from that residence for
months or even years without having abandoned it:
“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
5
For purposes of clarity, and like the legislature, we will use terms such
as “residency,” “resident,” and “reside” interchangeably. See Moran v.
Katsinas, 16 Ill. 2d 169, 174 (1959) (“where the same, or substantially the
same, words or phrases appear in different parts of the same statute they will
be given a generally accepted and consistent meaning” (emphasis added));
see also 10 ILCS 5/3–1, 3–2 (West 2008) (treating “resides in” and
“residence” synonymously).
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be followed by a resumption of the former residence, will not
be an abandonment.” Kreitz v. Behrensmeyer, 125 Ill. 141,
195 (1888).
Stated differently, a residence is not lost “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.” Clark v.
Quick, 377 Ill. 424, 427 (1941). Third, both the establishment and the
abandonment of a residence is principally a question of intent. Park v.
Hood, 374 Ill. 36, 43 (1940). And while “[i]ntent is gathered primarily
from the acts of a person” (Stein v. County Board of School Trustees,
40 Ill. 2d 477, 480 (1968)), a voter is competent to testify as to his
intention, though such testimony is not necessarily conclusive (Coffey
v. Board of Election Commissioners, 375 Ill. 385, 387 (1940)).
Fourth, and finally, once a residence has been established, the
presumption is that it continues, and the burden of proof is on the
contesting party to show that it has been abandoned. In re Estate of
Moir, 207 Ill. 180, 186 (1904).
The question, then, is whether there is any indication that, in
enacting and amending section 3.1–10–5(a) of the Municipal Code,
the legislature intended residence to mean anything other than what it
has meant in this state for well over a century. There is no such
indication.
This court has held that “[w]ords used in the Municipal Code, as
in any other statute, are to be given their plain and commonly
understood meaning in the absence of an indication of legislative
intent to the contrary.” In re Petition to Annex Certain Territory to
Village of North Barrington, 144 Ill. 2d 353, 362 (1991). And where
a term has a settled legal meaning, this court will normally infer that
the legislature intended to incorporate that settled meaning. People v.
Smith, 236 Ill. 2d 162, 167 (2010). In Illinois, the legal meaning of
residence has been settled for well over 100 years, not only in the very
context that section 3.1–10–5(a) concerns (see Smith, 44 Ill. at 23-
25), but in virtually every other setting in which this court has
construed a legal residency requirement. See, e.g., Hughes v. Illinois
Public Aid Comm’n, 2 Ill. 2d 374, 380 (1954) (eligibility for state
public aid); People ex rel. Heydenrich v. Lyons, 374 Ill. 557, 566
(1940) (eligibility for local public aid); In re Petition of Mulford, 217
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Ill. 242, 249 (1905) (eligibility to serve as executor of decedent’s
estate); In re Estate of Moir, 207 Ill. 180, 186-87 (1904) (liability for
inheritance tax); Smith v. People ex rel. Frisbee, 44 Ill. 2d 16 (1867)
(eligibility to hold public office). There is absolutely no indication
anywhere in the Municipal Code that the legislature intended
residency in section 3.1–10–5(a) to mean anything other than this
well-settled meaning.
Second, this court has twice stated explicitly that related
provisions of the Election Code and of the Illinois Municipal Code are
to be considered in pari materia for purposes of statutory
construction. See Cinkus v. Village of Stickney Municipal Officers
Electoral Board, 228 Ill. 2d 200, 218 (2008); United Citizens of
Chicago and Illinois v. Coalition to Let the People Decide in 1989,
125 Ill. 2d 332, 338-39 (1988). The reason for this is that these two
Codes are “ ‘[g]overned by one spirit and a single policy.’ ” Id. at 339
(quoting People v. Maya, 105 Ill. 2d 281, 286-87 (1985)).
Consequently, this court must presume “ ‘that the legislature intended
the enactments to be consistent and harmonious.’ ” Id. Section 3–1 of
the Election Code provides, in relevant part, that “[e]very person (i)
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). Section 3–2(a) of the Election Code, in turn, provides 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). Thus, under
the voter-eligibility provisions of the Election Code, “residency” and
“permanent abode” are synonymous (see Pope v. Board of Election
Commissioners, 370 Ill. 196, 200 (1938)), and both are governed by
the well-settled residency principles outlined above (see, e.g., id.).
This, then, raises the question: How can this court best construe the
residency requirement in section 3.1–10–5(a) of the Municipal Code
as to render it consistent and in harmony with the residency
requirement contained in section 3–1 of the Election Code? The
appellate court’s answer was to assign them inconsistent and
competing meanings. No. 1–11–0033, slip op. at 20-21. How, exactly,
this fosters consistency and harmony is unclear, and the appellate
court makes no effort to explain. The far better approach, we believe,
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and the one that vindicates our obligation to construe the provisions
consistently and harmoniously, is to presume that they have the same
meaning, that to “reside[ ] in” means the same thing in section
3.1–10–5(a) of the Municipal Code as it does in section 3–1 of the
Election Code.
Third, as helpful as the in pari materia doctrine is, it is not clear
that it is necessary in this case, as we are faced not so much with
related provisions of separate statutes as with a single statutory
provision. Consequently, the more relevant canon of construction may
be the one stating that “where the same, or substantially the same,
words or phrases appear in different parts of the same statute they will
be given a generally accepted and consistent meaning, where the
legislative intent is not clearly expressed to the contrary.” Moran v.
Katsinas, 16 Ill. 2d 169, 174 (1959). Again, section 3.1–10–5(a) of the
Municipal Code states, in relevant part:
“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).
And again, to determine whether one is a “qualified elector of the
municipality,” article 3 of the Election Code must be consulted.
Effectively, then, the voter eligibility standards from article 3 of the
Election Code, including the residency standard, have been
incorporated into section 3.1–10–5(a) of the Municipal Code. Thus,
were we to say that residency means one thing in article 3 of the
Election Code and something altogether different in section
3.1–10–5(a) of the Municipal Code, we would be creating an
inconsistency not only between the two codes, but within section
3.1–10–5(a) itself–residency would mean one thing in the “qualified
elector” clause, and something else just three words later in the one-
year residency clause. There being no indication that the legislature
intended any such inconsistency, we will not read it into section
3.1–10–5(a). Instead, we will presume that the legislature intended
residency to mean the same thing each time it is referenced in section
3.1–10–5(a).
Of course, the appellate court did not see the statutory question
this way. But its reasons for departing from over 100 years of settled
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residency law are hardly compelling and deserve only brief attention.
First, as already noted, the appellate court asserts that this court “has
at least once noted the distinction between candidate and voter
residency requirements.” No. 1–11–0033, slip op. at 9. In support, the
appellate court cites to this court’s 1960 pronouncement that the
residency requirements set forth in the Municipal Code
“ ‘differentiate[d] between “electors” and those persons who may
qualify for municipal office.’ ” No. 1–11–0033, slip op. at 9 (quoting
People ex rel. Moran v. Teolis, 20 Ill. 2d 95, 104 (1960)). The
intended implication, of course, is that this court has a history of
defining residency differently as between candidates and electors.
What the appellate court fails to mention is that the cited portion of
Moran was referring solely to the statutory time periods in the
respective local residency requirements (i.e., 30 days for electors, one
year for candidates), a “distinction” that appears on the face of the
statute and says nothing about how, as opposed to how long,
residency must be established.
The appellate court then spends five pages examining section
3.1–10–5(d) of the Municipal Code (65 ILCS 5/3.1–10–5(d) (West
2008)), which is somewhat mysterious given that this section in no
way speaks to the definition of “residency.” Enacted in 2007, section
3.1–10–5(d) provides:
“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 the 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) (West 2008).
Far from resolving the question of what it means to “reside in” or be
“a resident of” a municipality for purposes of section 3.1–10–5(a),
section 3.1–10–5(d) begs that very same question. By its plain terms,
section 3.1–10–5(d) speaks of someone who, though once a
“resident,” spent some amount of time “resid[ing]” somewhere else,
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and now is “again a resident.” The only way to construe this provision
in any meaningful way is to know what the Municipal Code means by
residency, something section 3.1–10–5(d) in no way speaks to. So
rather than providing the elusive answer, this provision leaves us right
back where we started: What does residency mean for purposes of
section 3.1–10–5 of the Municipal Code?
By way of final thought on this question, we wish to point out
that, while this court’s traditional definition of residence may be
plugged into the Municipal Code without creating any ambiguity or
confusion, the appellate court’s new and undefined standard promises
just the opposite. Although adopting a previously unheard-of test for
residency that would have applied to all future municipal elections, the
court made no attempt to explain what its standard means. The only
hint given by the appellate court is that, whatever its standard means,
this candidate did not satisfy it. The appellate court never explained
what it meant by “actually reside” or “actually live.” Indeed, as its
discussion of section 3.1–10–5(d) reflects, the entire appellate court
opinion can be read as nothing more than an extended exercise in
question begging, in which the appellate court sets forth the question
to be answered as what it means to “reside” (No. 1–11–0033, slip op.
at 11), and concludes that it means to have “actually resided” (No.
1–11–0033, slip op. at 21).
The difficulty of applying such a standard is immediately apparent.
For instance, consider a Chicago resident who owns a second home
in Florida and typically spends a month there every winter. Where is
that person “actually living” or “actually residing” during the month
when he or she is at the second home? Is such a person ineligible for
municipal office unless he or she sleeps at the Chicago house every
night for the year preceding the election? Is there a time limit with this
test? Would a week at the second home be short enough but two
months be too long? What about a Chicago resident whose job
requires him to spend extended periods of time out of the country
every year? Where is such a person “actually living” or “actually
residing” when out of the country? Assuming without deciding that
the appellate court was correct that the government service exception
does not apply to candidates, consider the example of Representatives
in Congress who often spend 4-5 days a week in Washington. If a
Representative from a Chicago congressional district owns a
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condominium in Washington, where is that representative “actually
living” or “actually residing” when Congress is in session? Under the
majority’s test, would the candidate have been ineligible to run for
mayor even during the time he was serving in Congress? The same
confusion would arise with respect to State Representatives or State
Senators who must spend considerable amounts of time in Springfield.
Applying the traditional test of residency to all of the above examples
leads to the commonsense conclusion that all would remain Chicago
residents even when away. Under the appellate court’s test,
considerable doubt would arise as to whether any of these people
could meet a residency test that requires one year of “actually living”
or “actually residing” in the municipality. Once the practical
implications of adopting a standard for residence that means “actually
lives” or “actually resides” are considered, one can readily appreciate
why such a standard has never been adopted and why the standard
used in Illinois has endured for well over a century.
So where does all of this leave us? It leaves us convinced that,
when determining whether a candidate for public office has “resided
in” the municipality at least one year next preceding the election or
appointment, the principles that govern are identical to those
embodied in Smith and consistently applied in the context of
determining whether a voter has “resided in” this state and in the
election district 30 days next preceding any election. Thus, in
assessing whether the candidate has established residency, the two
required elements are: (1) physical presence, and (2) an intent to
remain in that place as a permanent home. Once residency is
established, the test is no longer physical presence but rather
abandonment, the presumption is that residency continues, and the
burden of proof is on the contesting party to show that residency has
been abandoned. Both the establishment and abandonment of a
residence is largely a question of intent, and while intent is shown
primarily from a candidate’s acts, a candidate is absolutely competent
to testify as to his intention, though such testimony is not necessarily
conclusive.
With these governing principles in mind, we now consider the
Board’s ruling. The first thing that must be observed is that the Board
applied the very standard we prescribe above for determining
residency. Given this, and given that we have already determined that
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the Board’s factual findings were not against the manifest weight of
the evidence, we may immediately proceed to determining whether the
Board’s conclusion that the candidate met the residency requirement
was clearly erroneous. A decision is “clearly erroneous” only when the
reviewing court is left with a definite and firm conviction that a
mistake has been committed. Cook County Republican Party v.
Illinois State Board of Elections, 232 Ill. 2d 231, 244 (2009). Having
carefully reviewed the Board’s decision, we are not left with a definite
and firm conviction that a mistake has been committed.
Again, because it is uncontested that the candidate was a Chicago
resident at least until January 2, 2009, when he resigned his office as
Representative from the Fifth Congressional District of Illinois, the
Board correctly determined that the relevant question was not whether
the candidate had established residency in Chicago, but rather whether
the objectors had proved by a preponderance of the evidence that the
candidate had abandoned that residency at any time during the one-
year period before the February 22, 2011, election. Only when
abandonment is proven is residence lost. Stein v. County Board of
School Trustees, 40 Ill. 2d 477, 479 (1968). On the question of
abandonment, a party’s intention is controlling. Kreitz, 125 Ill. at 195.
Intention is determined both by a person’s declarations and his acts.
Id. A person’s declarations of intent are not conclusive and may be
disproved by his acts. Id. Once a residence has been established the
presumption is that it continues, and the burden of proof is on the
party claiming that it has been changed. Moir’s Estate, 207 Ill. at 186.
After finding the facts as summarized at the outset of this opinion,
the Board concluded that the objectors had failed to meet their burden
of showing that the candidate had abandoned his residence.
Specifically, the Board found that the preponderance of the evidence
did not show the candidate had formed an intention to terminate his
residence in Chicago or to establish his residence elsewhere. The
candidate maintained significant contacts in and with the City of
Chicago and the State of Illinois, including continuing ownership of
real estate; continuing ownership of valuable personal property of
kinds that a reasonable person would store at the place he deemed to
be his permanent residence and to which he planned to return. The
Board concluded that the candidate’s absence from Chicago was
solely for the purpose of permitting him to discharge what he
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perceived to be a duty to serve the United States in the capacity of
Chief of Staff to the President of the United States. Moreover, the
Board found that the fact that the ending dates of the lease terms for
the Woodley House and the Hermitage House were identical, showed
that the candidate intended to return to the Hermitage House as soon
as his service to the President was over. None of these findings are
clearly erroneous.
This is a situation in which, not only did the candidate testify that
his intent was not to abandon his Chicago residence, his acts fully
support and confirm that intent. The candidate told several friends that
he intended to serve as Chief of Staff for no more than 18 months or
two years before returning to Chicago. The candidate has continued
to own and pay property taxes on the Chicago residence while only
renting in Washington, D.C. As set forth above, the ending dates for
the Woodley House lease and the Hermitage House lease were
identical and coincided with the end of the school year of the
candidate’s children. This supports an inference that the candidate
intended to move back into the Hermitage House when the Woodley
House lease ended. The candidate has continuously maintained an
Illinois driver’s license setting forth the Hermitage House as his
address and has never obtained a Washington, D.C., driver’s license.
The candidate has continued to register his car at the Hermitage
House address. The candidate registered to vote from the Hermitage
House address in 1999 and has continuously voted from that address
in every election through February 2010. Up and through 2010, the
candidate did his banking in Chicago and had the Hermitage House
address printed on his personal checks. The candidate left many
personal items in the Hermitage House, including his bed, two
televisions, a stereo system, a piano, and over 100 boxes of personal
possessions. Although the candidate paid income taxes to the
government of the District of Columbia, the candidate continued to
pay state income tax in Illinois.
The objectors claim that, once a person rents out a residence, he
or she has abandoned it as a matter of law. This is obviously incorrect,
as it is directly contrary to Smith. Indeed, Smith makes clear that
rental is merely one factor to consider in determining abandonment
(Smith, 44 Ill. at 24), and the terms of the rental and the circumstances
surrounding it must be considered. For instance, if an Illinois resident
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accepts a permanent job with an out-of-state corporation, purchases
a house in a new state, moves his or her family into the new house,
moves all of his or her belongings out of the old house and into the
new one, and then rents out the old house on a one-year lease with a
right to renew, it clearly could be said that this was an abandonment
of the Illinois residency. By contrast, the Board did not believe that
this rental showed abandonment when the candidate took a position
as Chief of Staff to the President of the United States (an inherently
temporary position of national service), merely rented in Washington,
D.C., left many personal belongings in the Chicago residence, and
ensured that the lease term for the Chicago house ended at the same
time as the lease on the Washington, D.C., house. The Board
determined that, in this situation, the rental did not show abandonment
of the residence. This conclusion was well supported by the evidence
and was not clearly erroneous.
Given the record before us, it is simply not possible to find clearly
erroneous the Board’s determination that the objectors failed to prove
that the candidate had abandoned his Chicago residence. We therefore
reverse the decision of the appellate court and affirm the decision of
the circuit court, which confirmed the Board’s decision.
So there will be no mistake, let us be entirely clear. This court’s
decision is based on the following and only on the following: (1) what
it means to be a resident for election purposes was clearly established
long ago, and Illinois law has been consistent on the matter since at
least the 19th Century; (2) the novel standard adopted by the appellate
court majority is without any foundation in Illinois law; (3) the
Board’s factual findings were not against the manifest weight of the
evidence; and (4) the Board’s decision was not clearly erroneous.
Appellate court judgment reversed;
circuit court judgment affirmed.
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JUSTICES FREEMAN and BURKE, specially concurring:
We join in the majority’s decision to reverse the judgment of the
appellate court. We do not, however, agree with the majority’s
reasoning.
The result in this case is in no way as clear-cut as the majority
makes it out to be. The majority states that, in Illinois, “the legal
meaning of residence has been settled for well over 100 years, not
only in the very context that section 3.1–10–5(a) concerns (see Smith,
44 Ill. at 23-25), but in virtually every other setting in which this court
has construed a legal residency requirement.” Slip op. at 13-14. This
is simply not true.
As this court has noted, the legal term “residence” does not “have
a fixed and constant meaning” Fagiano v. Police Board, 98 Ill. 2d
277, 282 (1983)); see also Restatement of the Law, Second, Conflict
of Laws §11, cmt. k, at 45 (1971) (“Residence is an ambiguous word
whose meaning in a legal phrase must be determined in each case”);
W. Reese and R. Green, That Elusive Word, ‘Residence,’ 6 Vand. L.
Rev. 561, 580 (1953) (residence is “one of the most nebulous terms
in the legal dictionary”); Willenbrock v. Rogers, 255 F.2d 236, 237
(1958) (“The words ‘resident’ and ‘residence’ have no precise legal
meaning although they are favorite words of legislators.”).
The majority bases its decision entirely on Smith v. People ex rel.
Frisbie, 44 Ill. 16 (1867). As the appellate court correctly noted, the
outcome in that decision turned solely on intent, a principle that is
consistent with the legal concept of domicile. See Hayes v. Hayes, 74
Ill. 312 (1874). Unfortunately, Smith was not this court’s last
pronouncement on the issue. Later decisions, namely Pope v. Board
of Election Commissioners, 370 Ill. 196 (1938), Park v. Hood, 374
Ill. 36 (1940), and Clark v. Quick, 377 Ill. 424 (1941), each define
residence in terms of domicile plus a permanent abode. In other
words, under these cases, intent alone is not enough to establish
residency.
Suffice it to say, therefore, that this court has not always spoken
clearly on what is meant by residency, and the majority should
acknowledge this fact. This is why both sides in this dispute can
contend that their respective positions are supported by decades of
precedent. Indeed, contrary to the majority’s assertions, the only thing
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that is well established in this case is the confusion that has existed on
this subject. The majority today now makes clear that residency for all
purposes is the equivalent of domicile. The majority, therefore, should
overrule those portions of Pope, Park, and Clark which hold to the
contrary.
It is for this reason that the tone taken by the majority today is
unfortunate. Because our own case law was, until today, unclear, it is
unfair of the majority to state that the appellate court majority
“toss[ed] out 150 years of settled residency law” (slip op. at 10),
adopted a “previously unheard-of test for residency” (slip op. 17), or
was engaged in a “mysterious” analysis (slip op. at 16). In order to
properly address the parties’ arguments, the appellate court had to
reconcile this court’s conflicting pronouncements on the question of
residency. That court did the best it could without the benefit of a
supreme court opinion which clarified the standards. By refusing to
acknowledge the role our own case law has played in creating the
dispute before us, the majority unwittingly adds credence to the
inflammatory statements contained in the dissenting opinion below.
The dissenting justice below accused the appellate court majority
of engaging in a “pure flight of fancy” (No. 1–11–0033, slip op. at 35,
Lampkin, J., dissenting)), of “conjur[ing]” its result “out of thin air”
(id. at 40), and of having a “careless disregard for the law” (id. at 41).
The dissenting justice also stated that the result was a “figment of the
majority’s imagination”(id. at 39), based on the “whims of two
judges” (id. at 42). In other words, the dissenting justice accused the
majority of basing its decision on something other than the law.
When the appellate court’s decision was announced, these
accusations were repeatedly emphasized in the media (see, e.g.,
Judicial Arrogance, Chicago Tribune, Jan. 25, 2011, at 14; Rahm
Ruling a Disservice to Voters, Chicago Sun-Times, Jan. 25, 2011, at
21), thereby fueling the perception that the appellate court’s decision
was, in fact, based on extrajudicial considerations. The tone taken by
the majority today, and the refusal to acknowledge conflicting case
law, unfairly perpetuates that notion.
Spirited debate plays an essential role in legal discourse. But the
majority opinion here and the appellate dissent cross the line.
Inflammatory accusations serve only to damage the integrity of the
judiciary and lessen the trust which the public places in judicial
-23-
opinions. The present case, one of obvious public interest, raises
difficult questions regarding the legal concept of residency about
which reasonable minds may differ. Indeed, as noted above, the
meaning of the term “residency” has puzzled attorneys and judges
since the term first appeared in the statute books. The majority and
dissenting appellate court opinions illustrate the confusion that has
long existed on this issue, which is the very reason for the difficulty in
discerning what the General Assembly meant when it used the words
“has resided in” in section 3.1–10–5(a) of the Illinois Municipal Code
(65 ILCS 5/3.1–10–5(a) (West 2008)). There is no reason for the
majority here to cast aspersions on the appellate court’s motivations.
Former Illinois Supreme Court Justice Ben Miller, one of the most
esteemed jurists to have served on this court, stated it well:
“Judges often disagree about what result the law requires in a
particular case. The existence of these disagreements, and the
ability of our legal system to thrive on them, are virtues of the
judicial process and of our system of government. The terms
of the debate, however, must be framed by civility and respect,
and not by suspicion and untruths. When rancor eclipses
reason, the quality of the debate is diminished, the bonds of
collegiality are strained, and the judicial process is demeaned.
We cannot prescribe civility to members of the bar when our
own opinions are disfigured by comments as offensive as those
we have admonished lawyers for making. *** We should
receive no less from our colleagues than we expect from
lawyers who appear in our courts.” People v. Bull, 185 Ill. 2d
179, 222 (1998).
Finally, it should be noted that today’s decision will raise questions
beyond the facts of this case. Because the court holds that residency
has one settled meaning, and that meaning rests on a person’s intent,
today’s decision will have implications for residency requirements for
in-state tuition, residency requirements for municipal employees such
as police officers and firefighters, residency requirements for school
districts and other similar situations. This court should be prepared to
address those issues as firmly and expeditiously as we have done
today.
Because of the breadth of today’s decision, we do not join the
majority’s holding that residency is the equivalent of domicile and that
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intent, therefore determines residency, even in the absence of any
physical presence. Rather, we would answer the narrow question that
was actually raised by the objectors in this case: Does a person lose
his permanent abode if the abode is rented during the relevant
residency period? To that question we answer “no.” Smith’s rule of
intent was called into question by Park’s holding requiring a
permanent abode in addition to domicile to maintain residency. Thus,
despite the similarity in facts between this case and Smith, it remains
an open question, in the wake of Park, as to whether a permanent
abode is lost by renting it out. In the absence of explicit guidance from
the legislature on this question, and because a candidate’s access to
the ballot is favored by law (see, e.g., McGuire v. Nogaj, 146 Ill. App.
3d 280, 282 (1986) (access to the ballot “is not to be prohibited or
curtailed except by plain provisions of the law”)), we join in the
judgment of the majority.
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