Neely v. Board of Election Commisioners for The City of Chicago

SIXTH DIVISION
February 16, 2007
No. 1-07-0309
DAVID E. NEELY, the Candidate for ) Appeal from the
Alderman of the 20th Ward in the City ) Circuit Court of
of Chicago, ) Cook County
)
Petitioner-Appellant, )
)
v. )
)
THE BOARD OF ELECTION COMMISSIONERS FOR )
THE CITY OF CHICAGO; LANGDON NEAL and )
RICHARD COWEN, as Members of the Board )
of Election Commissioners for the City )
of Chicago; IRIS L. HEARD and JERMAINE )
SHEPPARD, as Objectors. ) Honorable
) Susan Fox Gillis,
Respondents-Appellees. ) Judge Presiding
JUSTICE McNULTY delivered the opinion of the court:
David Neely, Ph. D., attorney at law, filed nomination
papers by which he sought election to the office of alderman from
Chicago's 20th Ward in the February 2007 election. The Chicago
Board of Election Commissioners sustained an objection to the
nomination papers based on Neely's vote in the 8th Ward less than
a year before the 2007 election. The trial court, on
administrative review, upheld the Board's decision. Neely now
appeals.
We too affirm the Board's decision, finding that Neely's
deliberate assertion of residence in the 8th Ward in March 2006
proves that he has not resided in the 20th Ward, for purposes of
serving as a representative of that ward, for the requisite year
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before the February 2007 election.
BACKGROUND
On March 21, 2006, Neely signed an application for a ballot
he used when he voted in Chicago's 8th Ward that day. The
application listed his address as 8401 South Luella Avenue, which
lies in the 8th Ward. Above the signature the application said,
"I hereby certify that I am registered from the address above and
am qualified to vote."
In September 2006 Neely changed his voting address to 5619
South Wabash, which lies in the 20th Ward. In December 2006
Neely filed a petition to have his name included on the ballot
for election as an alderman of the 20th Ward in the general
election of February 27, 2007.
Jermaine Sheppard and Iris Heard objected that Neely would
not have resided in the ward for the required one year prior to
the election. At a hearing on the motion, objectors relied
mostly on the application for ballot Neely signed in March 2006.
Neely presented utility bills and insurance bills showing him as
the addressee for bills for 5619 South Wabash since 1996.
Appraisals of the property, done in 2004 and April 2006, listed
Neely as owner and occupant.
A financial consultant who worked with Neely since 2004
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testified that he went to the property in 2005 and 2006 and he
found "that the residency of David E. Neely was continuous." The
consultant added that he visited the property more than 20 times
since March 2006, and he could "personally attest" that Neely
lived at the property. The consultant explained that he knew
this from "coming in the morning when [Neely] wakes up and he
comes to the door."
Neely testified that he lived at 5619 South Wabash since
1996. He always used his parents' address on Luella as his
permanent mailing address and he maintained his voting
registration at that address although he did not live there.
The hearing examiner found that Neely's evidence proved he
owned the Wabash home, but he did not prove residence. The
officer discounted the consultant's testimony because of the
consultant's financial interest in the "ongoing business
relationship for at least nine years." Thus, the examiner held
that Neely did not effectively refute the objector's evidence
based on the March 2006 ballot application.
Neely asked the Board to review the examiner's decision.
Before the hearing Neely sought to introduce affidavits signed by
eight persons who lived in the 20th Ward. In the affidavits the
affiants swore that Neely had lived in the Wabash home for more
than a year. At the hearing Neely expanded on his reasons for
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using his mother's address as his voting address:
"I have been practicing law for 25 years. I handle
criminal cases and civil rights cases. I handle high
profile cases. I have always wanted to maintain some
sense of privacy. And by voting at my mother's
address, I did not disclose my actual address. ***
***
*** I have maintained a law practice, a home
business, at 5619 South Wabash for over ten years. I
live there. I raise my dogs there. I raise my family
there."
Members of the Board recognized that the examiner made some
factual errors, particularly in finding that the consultant had a
business relationship of nine years with Neely. The Board never
explicitly ruled on Neely's motion to introduce the eight
affidavits from neighbors into the record.
One member said he found all of Neely's evidence credible,
but the Board needed to rely on the voting registration from
March 2006. He said:
"[W]hat would happen if we decided that a person can be
registered anywhere they want to be but they can
establish their own particular residency at another
location for purposes of running for the ballot? ***
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* * *
It would have to be an extraordinary set of
circumstances for you to overcome that inconsistency
between where you say you reside and where you have
registered with the Board."
Another Board member said he found Neely and his financial
consultant incredible, and the weight of the evidence supported
the examiner's central findings. But that member also said, "I
do not believe that we should ever have a system where somebody
says I live at this address in this ward and I am going to vote
for however long I can from an address in another ward." The
Board adopted the hearing examiner's findings and
recommendations, holding that any factual errors in the findings
had no material effect on the result. The trial court affirmed
the Board on administrative review.
ANALYSIS
We review the Board's decision rather than the circuit
court's judgment. Thigpen v. Retirement Board of Firemen's
Annuity & Benefit Fund, 317 Ill. App. 3d 1010, 1017 (2000). We
will disturb the board's findings of fact only if they contravene
the manifest weight of the evidence. If the record sufficiently
supports the findings of fact, we then apply the law to those
facts. Oregon Community Unit School District No. 220 v. Property
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Tax Appeal Board, 285 Ill. App. 3d 170, 176 (1996). While we
give substantial weight to the agency's interpretation of law, we
must independently analyze the law in applying it to the facts.
Oregon, 285 Ill. App. 3d at 175-76.
The Board adopted the hearing examiner's findings and
decision. The findings include errors that the Board recognized
but found immaterial. When we find such errors in factual
findings, we must "first determine whether the factual findings
independent of the error provide a sufficient basis for the
agency's decision. [Citations.] If the facts provide such a
basis, we will affirm the decision. But if the decision lacks
adequate support without the manifestly erroneous finding, we
must reverse." Johnson v. Human Rights Comm'n, 318 Ill. App. 3d
582, 587 (2000).
The Board relied primarily on one factual finding, and Neely
does not dispute that finding. In March 2006, when Neely signed
an application for an 8th Ward ballot, he certified that he was
"qualified to vote" for the 8th Ward candidates on the ballot.
The Election Code provides:
"No person shall be entitled to be registered in
and from any precinct unless such person shall by the
date of the election next following have resided in the
State and within the precinct 30 days ***." 10 ILCS
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5/5-2 (West 2004).
Thus, Neely, in March 2006, certified that he had resided
within the precinct in the 8th Ward for at least 30 days prior to
the March election. The Revised Cities and Villages Act of 1941
establishes that "No member may be elected or appointed to the
city council after the effective date of this amendatory Act of
the 93rd General Assembly unless he or she has resided in the
ward he or she seeks to represent at least one year next
preceding the date of the election or appointment." 65 ILCS
20/21-14 (West 2004).
Neely claims that his evidence of actual residence in the
20th Ward rebuts the certification he made in March 2006, and
many voters register with an address other than the address of
their actual residences. We have found no Illinois case, and the
parties have cited us none, in which a candidate sought to
renounce a public record he created of his residence as part of
an effort to establish eligibility for public office. However,
we find some guidance in cases from other jurisdictions.
In McClelland v. Sharp, 430 S.W.2d 518 (Tex. Civ. App.
1968), the petitioner sought a writ of mandamus directing the
respondent to put his name on the ballot as a candidate for state
representative from the 24th legislative district for an election
to take place on November 5, 1968. State law required residence
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in the district for one year as a qualification for the office.
Twice within the year preceding the election the petitioner voted
in the 22nd district, and he also made himself a candidate for an
office in the 22nd district in a special election held on
November 11, 1967.
The petitioner sought to introduce evidence that he actually
moved into the 24th district more than a year before the 1968
election, but shortly after he filed for candidacy for an office
in the 22nd district. He did not formally withdraw his candidacy
for that office only because he knew he had little chance of
winning. He saw no problem with continuing to vote in the 22nd
district because he continued to maintain a part-time residence
in that district after he moved his primary home to the 24th
district.
The court denied the writ, holding that the respondent
properly refused to put the petitioner's name on the ballot for
the 24th district. The court explained:
"[B]y voting in that special election [in the 22nd
district, in November 1967], the relator represented
himself to be a resident of that district on that date.
His conduct, which implies that representation, is a
matter of public record. The same can be said of his
votes in the November 18, 1967, city bond election ***.
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* * *
*** [W]here, as here, the facts reflected by
public records establish a disqualification of the
proposed candidate, the respondents were neither
required to ignore those facts nor permitted to go
outside the record inquiring of other facts in
exercising their implied authority. Particularly is
this true where the public records showing the
disqualification of the relator are based on his own
actual or implied representations as to his residence
at the time in question." McClelland, 430 S.W.2d at
520-22.
Similarly, in People v. Platt, 117 N.Y. 159, 22 N.E. 937
(1889), the defendant accepted appointment to an office as
commissioner, when the office required residence in New York
City. The plaintiff sued to have the defendant removed from
office on grounds that he did not reside in the city. The
defendant presented evidence that he maintained residences in the
city and outside the city, in Tioga County. Platt, 117 N.Y. at
165, 22 N.E. at 937. He continued to vote in Tioga County even
after his appointment as a commissioner. The court explained:
"His right to vote was challenged on the ground that he
was not a resident of the village, and he took the
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general oath and voted under the challenge. He thus
declared, under oath, that he had resided in the county
of Tioga for four months, and in the village for thirty
days, prior to that election. ***
***
The defendant offers his vote in Tioga county
because he is a resident of that county, and of the
election district where it is offered; it is received
under the provision of law, that a person so situated
shall be entitled to the privilege. And his absence
from that county, however long, so that it is
temporary, and not in abandonment of his home, will not
deprive him of his residence, though his absence extend
through a series of years. Nor can his actual presence
during that time in another district entitle him to the
enjoyment of another franchise for which only a
resident of that district is, by law, qualified."
Platt, 117 N.Y. at 166-68, 22 N.E. at 938.
McClelland and Platt comport with the reasoning of other
courts concerning the significance of voting. The Virginia
Supreme Court said:
"[P]articular significance should be attached to
the repeated exercise of the right to vote, because
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this right depends upon citizenship and domicile ***.
*** [S]uch act is a distinct, unequivocal, and public
assertion by the voter of his legal domicile."
Cooper's Administrator v. Commonwealth, 121 Va. 338,
349, 93 S.E. 680, 683 (1917).
And Wisconsin's Supreme Court held:
"[W]e cannot conceive of any circumstance of more
controlling weight, as bearing upon the question as to
what state a man has taken up a permanent residence in,
than the act of voting. This act is so important and
deliberate that it should have decisive preponderance
upon the question whether a [litigant] believes that he
is a resident of a particular state. For the defendant
must be presumed to know that he had no right to vote
in Iowa unless he was a resident of that state. He
exercised the elective franchise there because he
considered himself at the time as a resident of that
state, and as having the right to vote where he did."
Wolf v. McGavock, 23 Wis. 516, 518-19 (1868).
Neely protests that the Board's decision here engrafts onto
the Election Code a requirement that the candidate have
registered as a voter in the ward from which he seeks election at
least one year prior to the election. Neely misinterprets the
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Board's ruling. The Board did not require any voting
registration at all. But because Neely had registered, the Board
looked to the public record of his registration, and particularly
to the exercise of the power to vote in the 8th Ward in March
2006, as a deliberate assertion of residence in that ward. Neely
did not present any evidence that the vote resulted from
inadvertent error or misunderstanding. See Dixon v. Hughes, 587
So. 2d 679 (La. 1991); In re Jackson, 14 S.W.3d 843 (Tex. App.
2000). He explained that he intentionally misrepresented his
residence to the Board in 2006 to keep his actual residence
secret. We agree with the Board that this explanation cannot
justify inclusion of his name on a ballot for office representing
the 20th Ward.
We agree with the Board that the affidavits from eight
neighbors have no bearing on the case, and the hearing examiner
included only immaterial errors in his recitation of facts.
Because of Neely's deliberate assertion of residency in the 8th
Ward on March 21, 2006, the Board properly found Neely
unqualified for election from the 20th Ward for the February 2007
election. Accordingly, we affirm the Board's decision.
Affirmed.
FITZGERALD SMITH, P.J., and O'MALLEY, J., concur.
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