Maksym v. Board of Election Commissioners

III. CONCLUSION reasons, foregoing For the of the circuit court judgment confirming the sale of the property previ- this case is affirmed. Our ously stay entered is vacated.

Affirmed.

HALL, P.J., PATTI, J., concur. al., WALTER P. MAKSYM Petitioners-Appellants, et v. THE BOARD OF (Rahm ELECTION COMMISSIONERS OF THE CITY OF CHICAGO et al. Emanuel, Respondent-Appellee). (1st Division)

First District No. 1 — 11—0033 Opinion January 24, filed 2011. J.,

LAMPKIN, dissenting. DaValle, Welch, of Odelson, Lauren M. all Matthew M. and Burton S. Park, Jaconetty and Sterk, Ltd., Evergreen and Thomas A. of Odelson & P.C., Chicago, appellants. Nally, of James P. both Brown, LLP, Gill, Mayer Kevin and Michael J. both of Michael K. Forde Kasper, Chicago, for J. all of Forde, Prendergast, and Michael M. Richard J. appellee. court, with judgment HOFFMAN delivered

JUSTICE opinion. opinion. judgment in the

Presiding Justice Hall concurred dissented, opinion. with Lampkin Justice

OPINION McMahon, Jr., L. Maksym, and Thomas P. petitioners, Walter Rahm candidacy respondent, of the to the objections filed written (the mayor candidate for candidate), to be a who seeks Emanuel on Febru to be held general election Chicago municipal in the City of Election Com- hearing, the Board evidentiary 22, 2011. After an ary (the Board) City Chicago objections dismissed the missioners name included and ruled that the candidate was entitled to have his sought judicial mayoral petitioners on the ballot as a candidate. The confirmed deci- County, review the circuit court Cook For the appeal. of the Board. The now reasons petitioners sion follow, set judgment, we reverse the circuit court’s aside Board’s decision, (or, excluded if order that the candidate’s name be neces- removed) 22, 2011, sary, Chicago’s February from the ballot for mayoral election.

Although parties engaged evidentiary hearing in an extensive decision, are prior pertinent largely undisputed Board’s facts appeal. It suffices purposes adopt to summarize hearing findings, adopted officer’s factual which the Board and which findings. we hereinafter refer as the we doing, Board’s so findings conclude that against those were not the manifest weight Stickney the evidence. See v. Village Cinkus Officers Board, Electoral 2d 886 N.E.2d and, The candidate born in December (the purchased house), a Chicago Hermitage home which he still owns. The candidate lived his family through in that home from 1998 January candidate, January 2009. On up who had to then as a served member of the of Representatives United States House elected from the Hermitage house, district that included resigned D.C., his office order to in Washington, serve as Chief of Staff to of D.C., President the United After to traveling Washington, States. spouse purchased and his adjoining Chicago additional land their property. January

From through May 2009, “in- the candidate lived in an apartment” Washington, D.C., law family while his remained in Hermitage 1, house. June 2010, From 2009 until October candidate, (the family, Washington, D.C., his lived in a house House) Woodley 2009, spanning 1, that was leased for the term June through 30, June family The Woodley 2011. received their mail at the house moved their personal most of clothes and belongings Washington, did, They however, D.C. Hermitage leave behind at the several larger items, including televisions, house piano, household bed, and a as personal family well as several such possessions as Hermitage heirlooms and books. The candidate’s house was leased 30, family 1, 2009, another for of September through the term June 2011. At all times, including relevant he was in Washington, time D.C., Hermitage the candidate to pay property continued taxes for the house, continued to hold an Illinois listing driver’s license the Hermit-

age address, Hermitage house as his continued to list the house ad- checks, dress personal on his and continued to vote with Hermit- did, age registered voting however, his He pay house as address. D.C., Washington, income tax 2010 to both and Illinois. 1, 2010, resigned position On October the candidate of of his Chief Staff the President of States into a the United and entered lease to live apartment Chicago in an located on Milwaukee Avenue in from 30, through apart- October 2011. lived in that June He has ment testimony, explained since October 2010. the candidate always expected he had to serve as Chief of Staff to President returning for 18 to 24 to live approximately months before in the house. Hermitage facts, the Board

From these Election concluded met for qualification candidacy, contained in subsection 3.1—10— 5(a) Code) (65 (Municipal of the Illinois ILCS 5/3.1— 5(a) (West 2008)), in” mandating Chicago that he “resided 10— February 22, 2011, mayoral year preceding for the one election. The on the that the candidate Board based conclusion evidence significant Chicago, maintained contacts with intended return house, and Hermitage Washington, and to the had lived D.C., solely purpose working petition- for the for the President. of court, and, judicial ers in the petition filed a review circuit follow- decision, ing they court’s confirmation of the now the circuit Board’s appeal. of board

The standards for our review an electoral decision administrative agency mirror of an decision. applicable those to review issue, Cinkus, Thus, any given 228 Ill. 2d 209-10. standard review, afford the agency which embodies the level deference we law, fact, issue, depends on the issue one of whether Service, Messenger fact. AFM Inc. v. question or mixed law and Department Employment Security, 198 Ill. 2d N.E.2d of law are not questions An electoral board’s decisions on court, questions under reviewing which will review such binding on An Cinkus, 228 Ill. 2d at 210-11. the nondeferential de novo standard. fact, however, prima are deemed findings electoral board’s facie unless are appeal true and will overturned on and correct not be Cinkus, 210; 228 Ill. 2d at against weight the manifest of the evidence. (West 2008). rulings on mixed An electoral board’s 735 ILCS 5/3—110 historical facts are questions questions on which the of law fact— only remaining issue admitted, undisputed, the rule of law is which the board satisfy statutory standard with is whether the facts clearly unless errone on review expertise has be disturbed —will Cinkus, Ill. 2d 211. ous. appeal essentially The issues in this distill two: whether the candidate meets the requirement Code’s that he have “resided in municipality year at least one next the elec preceding (65 10—5(a) (West 2008)), and, not, tion” ILCS if whether he is 5/3.1— exempt from requirement provision under the Election Code stat *** ing that “[n]o elector shall be deemed to or her have lost his *** by reason of his or her absence on business of the United (10 (West 2008)). States” ILCS Each of presents, these issues 5/3—2 first, a legal question requiring statutory construction of the relevant provisions, and, second, assuming applied Board the correct (see standard Du Page County Airport Authority Department v. Revenue, App. n.4, 358 Ill. (2005)), 3d 831 N.E.2d 30 a mixed question of regarding law and fact application Board’s of that standard. We the legal questions review de and any ques novo mixed clearly tions under the erroneous standard. begin by

We analyzing statutory requirements to be a office, candidate for municipal which are located in subsection 3.1— 5(a) of the Municipal Code: 10— person

“A eligible is not for an municipal elective office unless person qualified is a municipality elector of the and has resided in the municipality at least preceding one next the election or 10—5(a)(West2008). appointment ***.” 65 ILCS 5/3.1— decision, to determine whether the candidate met the requirement Code’s that he have “resided in” the municipality for year, applied Board test for has been used for qualification voter under the Election Code. This approach supported by several appellate that, court decisions discussion, without equate residency requirements imposed on voters with requirements that a candidate “resided in” political his or her See, e.g., unit. People ex rel. Madigan Baumgartner, v. App. 3d (2005) 847-48, 823 N.E.2d 1144 (stating only that it would treat the terms as synonymous eligibility “because to run closely for office is linked to ability to vote within a particular jurisdiction”); Walsh v. County Board, Electoral 972, 976, 267 Ill. App. 3d 642 N.E.2d Officers (1994) (assuming implicitly that the synonymous); terms were Delk v. Board Election Commissioners, App. 3d 445 N.E.2d 1232

Neither the Board parties have, however, nor the referred us to any supreme opinion court ratifying, adopting, directly addressing approach. cited supreme court to approach case the is sue is People Frisbie, Smith v. ex (1867), rel. 44 Ill. 24 quo warranto action decided under presumption right that the candidate had a to the office to which he had appointed been and in which the court 14 disqualification by establish the candidate’s

required objectors Smith, of no 44 Ill. at 30. We know satisfactory” proof. See “clear and case, objectors here to this applicable presumption similar disqualification prove the candidate’s stringent the less burden bore Board of Election Commis of the evidence. See by preponderance a 8(b) (“[T]he objector Rules of Procedure City Chicago of the sioners by a by operation of law and proving must bear the burden *** *** are true objections of the evidence preponderance in discussion Smith addition, although supreme court’s In “residence,” appears it from its nominally principles on based Despite the facts concepts of domicile. actually applied that it analysis had rented family had left Illinois with that the officeholder concluded, solely based on home, supreme court his Illinois out Il in return, he retained his “residence” intent to officeholder’s analysis the defin Smith, intent-based is 44 Ill. at 30. This linois. See that, domicile, once legal a status principle of the ing characteristic solo, mere intention not to “retained, by the can be animo acquired, (1874). 312, Hayes, 74 Ill. 314 Hayes another.” v. change adopt it and however, supreme explained court has decided, Smith was Since are not domicile and residence “it elemental that unequivocally that Commissioners, Ill. 370 v. Board Election synonymous.” Pope (1938). in explained further supreme court 214 As 18 N.E.2d abode. permanent requires legal concept of “residence” Pope, might that Smith Accordingly, to the extent at 200. Pope, 370 Ill. residency requirement could meet or candidate establish that a voter abode, supreme alone, any permanent intent without through reason, along For this approach. abandoned Smith’s court has since controlling reasons, as do not view Smith we with the above-discussed this case. applied to be urges that the test Smith, the candidate

Aside from Chicago for he has resided within determining whether in the test for the same as election is February mayoral prior argu He bases this Election Code. residency under the determining and the Election Code ment, the assertion part, upon in Cinkus, 228 materia. See pari interpreted be Municipal Code should however, materia, does pari of in The doctrine Ill. 2d at 218-19. meanings; given identical separate statutes that terms dictate mat subject bearing the same separate statutes only that dictates White, 356 Ill. v. E.g., Girard interpretation. given harmonious ter be therefore, We, do not view 11, 17, 826 N.E.2d App. 3d the Election distinguishing as a bar pari materia doctrine of one-year Municipal Code’s from the residency requirement Code’s below, fact, “reside in” for candidates. In as we discuss requirement doctrine, actually outgrowth we view the which is more statutory light general provisions rule that courts should consider (Girard, statutory App. 3d at entire relevant scheme 17), support requirements as for our conclusion that the of the Elec Code, although the Municipal distinguishable, may tion harmony. read in nevertheless be directly court has not the notion that the addressed

legislature one-year in” require intended Code’s “reside residency requirement ment for candidates to coextend with the voters, but the court has at least once noted distinction between residency requirements. People and voter ex rel. Moran v. Teolis, (1960), argued 20 Ill. 2d party N.E.2d 232 residency requirement voter should be extended on the policy based by issue, embodied a precursor Code section now at now, provided, provides which as it municipal that a candidate for of be a qualified fice elector and have resided the area at least one year the preceding Moran, election. 2d at (discussing 20 Ill. 104 Ill. 87). 1957, 24, Rev. Stat. ch. par. supreme The court answered that 9— the statute persons “differentiate[d] between ‘electors’ and those who may qualify municipal Moran, for office.” 20 Ill. 2d at 104. Smith,

With exception the of already which distinguished, we supreme analysis court has limited its of residency requirements voter qualification Quick, 426-27, cases. See Clark v. 377 Ill. 36 (1941) (“residence N.E.2d 563 voting purposes means actual for “ place added); of (emphasis abode” real an imaginary ‘[a] and not abode, as occupied his home or is dwelling, satisfy essential ” legal requirements added)); as to the residence voter’ (emphasis aof Coffey v. Board Commissioners, Election 375 Ill. 31 N.E.2d of (1940) (“[a] residence, 588 voting purposes, temporary is not lost for removal (emphasis added)); with the intention to return” Park v. (1940) (“[a] Hood, 36, 43, N.E.2d 838 real not an imaginary abode, occupied dwelling, as his home or is essential satisfy the legal requirements as to the a (emphasis voter” of (“[t]he added)); Pope, 370 Ill. at 198-99 this question determination of requires a review of the qualifications registration and voting” for (emphasis added)); Pifer, Anderson v. N.E. 171 (1924) (“[w]hether a student entitled college is to vote” based on added)). residence is a question (emphasis Consequently, of fact we have neither a current court persuasive appel directive nor late court reasoning compelling residency us treat candidate requirements residency requirements, same manner as voter and we have from supreme require- some indications court that the might must, therefore, diverge. interpret

ments We ourselves in” to if phrase Code’s use “resided determine with, from, synonymous be as or different being should construed Election for voters. requirements Code’s statutory begin principles this task to familiar We resort statute, a is interpretation. interpreting primary goal For a court legislature, effect the intention of the and the give to ascertain and language, given plain best indicator of intent is statute’s Cinkus, meaning. 228 Ill. 2d at 216. ordinary noted, operative language requires potential that a As issue municipality preced- in” for one next candidate have “resided means, form, among ing generally the election. In its verb “reside” continuously,” “have a things, permanently dwell or or to other “to Third New International settled abode for time.” Webster’s (1993). Dictionary synonymous to be The word considered “live, but it dwell, sojourn, lodge, stay, put (up), stop,” [and] idea “may expressing person term for that a preferred fixed, settled, dwelling as his keeps particular place or returns to Dictionary 1931 Third New International legal abode.” Webster’s interchangeable our our purposes: These are for definitions in” a fair of “resided synonym “live” as definition selection office, he eligibility to run for because defeat the candidate’s would statutory large part outside certainly most “lived” hand, conception one-year period. On other selection person in” of a abode a permanent more akin to the idea “resided the Board seems plans or to to return —the definition keeps greater to the candidate’s employed support lend much to have —would us, then, definitions becomes which these position. question in” phrase “reside legislature meant to invoke with use of in the Code. consider, in addition statute, a court should

In interpreting law, to be problems the reason for the statutory language, v. People remedied, objects purposes sought law. and the (2003). 159, 171-72, Our research Donoho, 788 N.E.2d 707 204 Ill. 2d qualifica “reside in” that candidate legislative purpose into reveals constitution, first date to our state’s type of the now at issue tions representative of state candidates for offices imposed upon the area they “resided” within have requirement and senator the (or upon and imposed to their election year) prior 12 for months have they requirement candidates governor lieutenant See their election. years preceding two within the state for “resided” in” II, 6, §13. Similar “reside 1818, §§2, Schedule art. Ill. Const. qualifications appeared, both in Illinois’s constitutions and in its III, 4; statutes, See, e.g., §§3, since 1818. Ill. Const. art. 267; Laws 1917 Ill. 258. Laws (see

Although precedential Bryson lacks force v. News Publications, Inc., (1996)), America 174 Ill. 2d 672 N.E.2d 1207 Ballhorn, (1901), People App. the decision in v. 100 Ill. provides view as a interpretation purpose what we reasonable such in” underlying requirements. explains candidate “reside Ballhorn requirements represent that those ensure “that those who the local of government component units shall be parts themselves such Ballhorn, units.” v. 100 Ill. People App. As Ballhorn explains, requirements further that candidates “reside in” the area represent would “can truly served requiring such representatives to be and remain actual residents units which they represent, in contradistinction from constructive residents. A mere constructive resident no opportunities has better knowing rightful the wants and constituents, demands of his than a non resident, beyond and is as much the wholesome influence of direct *** contact with them. [the candidate statute] language not, resident, is, shall be a but it shall ‘reside within’ ***.” Ballhorn, App. Although at 573. nearly years of technologi cal advances since Illinois’s first candidate “reside in” requirements may have obviated much of their necessity, legislature has not seen fit to alter the believe, relevant language. therefore, We initial purpose of the “reside requirement candidates, in” and the failure of the legislature to alter that language the current Municipal Code, strongly phrase indicates that “resided in” as used requires actual, constructive, not residence.

Another familiar principle statutory interpretation teaches whole, “statute should be provision evaluated as a with each construed in every connection Cinkus, other section.” 228 Ill. 2d at 216-17. For our maxim purposes, requires that we consider 10—5(a) only subsection Municipal Code, any but also 3.1 — other portions relevant of the statute. 10—5(a)

Subsection of the Municipal Code sets forth two 3.1 — qualifications for candidates: it that a “a states candidate must be qualified elector of the municipality [must have] in the resided municipality least one next preceding the 65 ILCS election.” 10—5(a) 2008). (West two qualifications These are stated 5/3.1 — separately and in conjunctive. part conjunctive first “qualified voter” require —the qualifications

ment —invokes the for electors stated in sections 3 — 1 (West 2008). 5/3—1, See 10 ILCS — 2 and 3 — 2 of the Election Code. 3 provide In as follows: pertinent part, those statutes *** in “§3 has resided in this State and Every person who —1. *** any days preceding election therein the election district 30 next States, age of or the United 18 more and who is citizen of at such election for all offices and on all years is entitled vote (West2008). propositions.” ILCS 5/3—1 And: (a) necessary to permanent

“§3 A abode is constitute —2. meaning spouse or within the of Section 3—1. No elector residence any precinct her residence in or shall deemed to have lost his or her in State reason of his or absence election district 2(a) States, of 10 ILCS of the United this State.” business 5/3— (West2008). Hood, v. court held: Park and ‘permanent terms ‘residence’ “It is well settled that the Code], synonymous. [Cita abode,’ employed [the as Election are abode, as his home or imaginary occupied A not tions.] real and requirements satisfy legal as dwelling, is essential to by temporary not lose a residence residence of a voter. One does return, or even with conditional with the intention to removal residence, one abandons his acquiring a new but when intention county or election up another home and takes his in the district from which district, voting he privilege loses question largely residence is one of [Citations.] he moved. intention, testify intention, as to his competent and a voter is Park, necessarily testimony is conclusive.” although such not Ill. at 43. case, that the candidate in this we find

From the admitted facts February an elector for the qualifications to be clearly satisfied of whether addressing question municipal election. Without place permanent the candidate’s Hermitage house constituted clearly lease, we conclude that the it was under abode while articulated in subsection to section 3—1 exception falls within (see 2(a) himself 199); namely, that he absented Ill. at Pope, 370 3— the United States Chicago on business of City from the had status lose the voter therefore did Chicago. established theretofore requirement candidate satisfies

Having determined he has of whether elector, question we must still address be an preceding next Chicago for at least City “resided in” election; requirement second mayoral February 2008). 10—5(a) (West candidacy. 65 ILCS 5/3.1— observed, requirement in” stated As we have “reside from, to, that he be separately requirement addition qualified municipal elector of in order to be a candidate for of- and in requirements separately fice. The fact that the two are stated conjunctive legislature the leads the inference that the intended from, to, be separately that considered addition each other. by

This inference is from the of sec- language bolstered remainder 10—5(d) provides: tion 3.1—10—5. Subsection 3.1— (i) person a a municipality immediately prior “If is resident of a duty military person’s person the active service of that or that (ii) spouse, anywhere municipality during resides outside the (iii) duty service, that military immediately upon comple- active duty military again tion of that active service is a resident of the municipality, during person then the time which the resides outside municipality during duty military the the active service is deemed during to be person time which the a municipal- is resident of the ity for purposes determining residency requirement under (a).” 10—5(d) (West 2008). subsection ILCS 5/3.1— point For the that the Municipal in” requirement Code’s “reside is separate residency from the requirement elector, we find 10—5(d)’s particularly interesting subsection concluding 3.1— language exception applies purposes “for of determining the (a).” residency requirement under subsection Subsection 3.1—10— 5(a) explicit contains residency requirement: that a candidate have “resided in the municipality year.” Thus, for one subsection 10—5(d)’s reference to “the residency requirement under subsec- 3.1— (a)” tion must refer explicit one-year residency 10—5(a) requirement contained subsection and not the voter 3.1— residency requirements set forth in sections 3—1 and 3—2 of the Elec- tion Code. Additionally, subsection 10—5(d), above, which we quote uses 3.1—

the words “resident” and “reside” to different effect. subsection uses the word “resident” concept first to describe the of legal residence, by referring to a military serviceperson who “is a resident a municipality.” reference, however, Just after that the subsection uses the word “reside” to refer to the act serviceperson’s of “resid- ing] anywhere outside of the municipality.” usage This of the word “reside” does not residence, denote the concept legal but rather the of actually living act somewhere outside the municipality. that,

Our interpretation using phrase anywhere “resides outside of the municipality” 10—5(d), in subsection 3.1— legislature intended refer living to the act of somewhere outside municipality by is further supported wording very next becoming person of that The clause refers a

clause subsection. added) “again municipality” (emphasis upon resident military military If the must serviceperson her return after service. “again” municipality, logically then it follows become resident of prior her at some time person lost his or resident status (d) contemplates a only manner in which subsection thereto. The living municipality. is outside of person losing status 10—5(d) person Thus, subsection assumes that who absent 3.1— in” municipality requirement from a will not meet “reside thereof, 10—5(a), but, provisions reason of the subsection 3.1— military to have been a resident compliant serviceperson is deemed during period of absence. statutory provide construction that “where

Basic rules statute, they parts in different of the same should appear same words context indicates given meaning something unless the same McMahan v. Industrial legislature intended otherwise.” rule, Comm’n, 499, 513, 702 Under this Ill. 2d N.E.2d 545 actually to mean legislature used the word “reside” fact 10—5(d) strongly Municipal Code live in of the subsection 3.1— (a). meaning in subsection indicates that it intended same that interpretation arguing subsec- The candidate resists this 10—5(d) a in which service member tion “addresses situation 3.1— *** municipal residence and establishes abandons reading of the candidate’s two difficulties with elsewhere.” We have (d). interpret the statute difficulty that it would subsection Our first individuals; to narrow class imperceptibly to an almost apply residency, full legal somehow establish namely, servicepeople those who then, municipality, is, outside the permanent place that a abode take municipality, to outside the having after an intent remain formed subsection, of the interpretation to return. Our opportunity the first feasible, and hand, logically in the apply on the other would duty common, serviceperson’s situation presumably quite immediately and, upon municipality, him her from the draws serviceperson military assignment, her of his or completion returns. reading of subsection difficulty with the candidate’s second

Our 10—5(d) underlying history legislative it is belied is that 3.1— passage bill added debate for the Senate whose During the subsection. (see (d) 95th 3.1—10—5 subsection to section Luechtefeld, Sess.), Assem., Senator Senate Bill Ill. Gen. original ver bill, explained presented who one of the senators sion as follows: person require all provides

“Senate Bill 253 that if a meets necessary office, municipal to run for but their time as an ments military interrupted residency duty active member of *** requirement, they permitted be A shall run for office. my Iraq situation occurred in district an individual was where *** office, back, municipal but did and he came to run for wanted one-year requirement. simply not meet the This would ward, district, allow them come back that same same Assem., run as if had Senate been there.” 95th Ill. Gen. (statements Proceedings, March at 13 Lu Senator echtefeld). Senator Luechtefeld described the final version of the bill in similar terms: you’llremember, unanimously passed military “If I had a bill that we out of *** person go gone

here to allow into be maybe year or two and then back community come to a run office, eligibility residency. that he would not lose his because of changed bit, The House has bill it passed a little but over there unanimously Assem., Proceedings, also.” May 95th Gen. Senate (statements Luechtefeld). 31, 2007, at 37-38 of Senator legislative history This interpretation supports that subsection 10—5(d) of the Municipal Code uses the word “reside” mean 3.1— actually having residence, live rather than legal voting and it further argument undercuts candidate’s contrary. foregoing analysis, that,

Based we conclude under subsec- 10—5(a) tion Code, a candidate must meet not 3.1— only the Election Code’s residency standard, voter but also must have actually resided within the municipality year prior to the elec- tion, qualification unquestionably the candidate satisfy. does not Because the candidate standard, may does not satisfy eligible for inclusion on exempt the ballot if he is somehow from the Municipal Code’s requirement. “reside in” end, that,

To that argues regardless of whether he meets the candidate eligibility requirements of subsection 3.1—10— 5(a) Code, of Municipal the he nonetheless bemay qualified as a by Code, candidate of virtue section 3—2 the of Election provides as follows:

“(a) permanent necessary A abode is to constitute residence meaning within the of or shall spouse Section 3—1. No elector any precinct deemed to lost his her or or election district in State this reason of his or her on business of absence (West2008). States, the United or of this State.” ILCS 5/3—2 According candidate, exception he falls within because his absence from was attributable to his as the Chief service agree the of Staff to the President of the United States. We with candidate that his service constituted “business of the United States” disagree, however, him. exception applies and thus that this to We view, candidacy. position exception with his saves the section of the Election Code exception applies embodied 3—2 only residency requirements, to not to candidate voter requirements. largely plain language the of the Elec

We base this conclusion on plain language tion Code. That limits the reach of the “business of no exception spouses; to or their makes “elector[s]” United States” Further, noted, must interpret mention of “candidates.” as we have we whole, provision each construed in connection with statutes “as Cinkus, every Ill. 2d 216-17. Section 3—2’s other section.” not in the exception only States” is housed “business of United Code, dealing exclusively Election Election portion but Code “Qualification in fact article qualification, with voter in an titled (West 2008). As through explained 10 ILCS 3—5 Voters.” See 5/3—1 above, for candidates: Municipal qualifications Code sets forth two voter,” they “qualified meet the for a must Election Code’s standards in” for one they municipality preced must have “resided of section 3—2’s “business the United ing election. location Code, Elec the Election an article exception States” —in exclusively qualification supports tion Code dedicated to voter — to the Election Code’s exception applies conclusion that standard, any to candidate “qualified supplemental voter” Code. located outside the Election qualifications the reach of sec further for our construction of support We find court, read a statute possible, 3—2 in the rule that a when should tion provisions meaningless its and render none give so as to effect all of Security, Employment v. superfluous. E.g., Department Grafner noted As we have 3d 914 N.E.2d App. above, regarding qualification, candidate among provisions that, purposes exception Code contains 10—5(a) of the residency requirement candidate of subsection 3.1— military to be deemed Code, in active service allows those military of their during pendency municipality residents of during their municipality even when reside outside service 10—5(d) 2008). (West 3—2 of the If section ILCS service. 65 5/3.1— person that a candidates, then its statement applied Election her reason of his or absence “by or her residence will not lose his certainly apply relax would of the United States” business nation’s on those who serve residency qualifications as applying section 3—2 interpret If we were armed forces. 10—5(d) voters, candidates as as subsection of the well then 3.1— wholly Our duty give Code would become redundant. to meaning fol- statutory possible, duty to enactments like our to where plain of the language interpret, compels low the statutes we therefore the conclusion the Election that section 3—2 of Code intended voters, a residency exception create for not candidates. are not first to

We draw the distinction between voters and purposes exception candidates for of the in section type contained exception founding 3—2 Election Code. The traces to Illinois’s charter, which imposed residency requirement representa on state but excepted public tives those who were “absent on the business Illinois’s 1818, II, §3. the United States.” Ill. Const. art. next constitu tion, 1848, stated the three exception times: once for state (Ill. representatives III, §3), 1848, Const. art. for state once senators (Ill. (Ill. III, 1848, §4), Const. art. and once for Const. art. voters §5). VI, The 1848 separately Constitution thus delineated “business exceptions the United States” for candidates and for voters. Illinois’s constitution, next retained the “business the United (see States” exception VII, as related to voters Ill. Const. art. §4), yet conspicuously exception omitted the as it related to candidates. (The voter exception was later incorporated into Election Code (see 2168) Laws was not included in our current constitu tion.) This history that, tells us purposes of the “business of the United States” exception, this state for over years has recognized a distinction between voters and candidates and has retained the exception only revelation, for voters. That combined with interpretation of the language of section 3—2 interrelation 10—5(d) with subsection Code, of the Municipal us convinces 3.1— that section 3—2’s “business of the United exception applies States” voters, Accordingly, candidates. it cannot avail candidate here.

For reasons, the foregoing we conclude that the candidate neither the Municipal meets Code’s requirement that he have “resided in” Chicago for year preceding the election in he seeks to which participate nor within any exception falls requirement. Accord we ingly, disagree eligible Board’s conclusion that he is run for the Mayor office of of the City Chicago. reverse the circuit We judgment court’s confirming decision, the Board’s set aside the Board’s 366(a)(5) (Ill. decision, and, pursuant Supreme Court Rule R. S. Ct. 366(a)(5) (eff. 1, 1994)), Feb. order the candidate’s name removed) (or, necessary, excluded if February from the ballot 22, 2011, Chicago mayoral election.

Reversed. LAMPKIN, dissenting.

JUSTICE court, I I judgment dissent. would affirm the circuit is entitled to have confirmed decision Board. mayoral his name included on the ballot as a candidate because he has requirements satisfied the of section 3.1—10—5 of where and has qualified Chicago he is both elector of resided preceding at least one next the election.

I contrary with the conclusion that disagree majority’s eligible candidate is not to be on the ballot because that conclusion is residency analysis establishing based an of two and a statu- issues— tory residency are not exemption requirement relevant —that acknowledges majority the resolution of this case. The that long Chicago candidate had a before 2009 established a here intent remain. physical presence where he had both and the failed, however, establishing majority past The to move the issue of analysis, residency to the relevant which turns on whether residency, held, he indisputably candidate’s had abandoned D.C., Chicago he in Washington, when worked and leased his home. The not ruling Board’s 2009 2010 did —that thus, Chicago and, a abandon his status a resident of remained as city from though largely resident of he was absent this even 1, clearly erroneous. January from 2009 until October 2010—was not (Delk, 738), major App. Intent 112 Ill. 3d at and the is an issue fact findings against ity acknowledges that the Board’s fact were acknowledgment should have weight manifest of the evidence. This court’s affirming court the circuit ended this case resulted ruling preponderance confirmed the Board’s judgment, which intent that candidate never formed an of the evidence established in Chicago, his or establish his change to either or terminate residence D.C., Washington, Chicago. or other than any place residence in Chicago residency, his it is the candidate had established Because shown, is and the contrary continue until the burden presumed to change. there has been a proof person is on the who claims 236, Anders, 3d 239 In the foundational App. Hatcher v. 117 Ill. (1888), supreme court 125 141 Behrensmeyer, case Kreitz v. Ill. stated: residence, held, party a leaves his frequently have that when

“We one, he does so a it is the intention with which acquires or new absence, if time at the to control. Hence the shortest is sufficient, abandonment, although the permanent as a intended intention; while, on the may change his party soon afterwards months, if while hand, years, or all the an even other absence temporary purpose, temporary for some as a mere absence intended

25 residence, of the former will not be resumption be followed Kreitz, Ill. at 195. abandonment.” 125 acknowledge though majority does not Kreitz even has been leading defining years since its 122 ago. case “residence” issuance majority principle long-held To extent the addresses acquires when he party’s largely intention leaves residence, controls the determination of he has whether abandoned (see below). majority principle distorts this discussion Smith Then, the majority simply principle analysis, reads the out of its choos- ing adopt completely instead to new standard. residence, changed order to have both in fact person, one’s intention, must have abandoned the former residence and

acquired a new one actual residence with the intent to make it a Smith, 24; permanent Shumway, home. See Ill. Welsh v. 232 Ill. (1907); Baumgartner, 355 Ill. 3d at App. 848-49. Affirmative acts proved residence, must be sustain the abandonment of a and a absence, temporary protracted, no matter not equate how does Comm’n, abandonment. v. Illinois Public Aid Hughes Ill. 2d (1954); Davis, Hatcher, v. App. (1973); 380-81 Davis 3d 117 Ill. App. 3d at 239. may

Because a person voting purposes, residence for person when a physical presence locations, has established a in two must make a about decision which location he intends to make his permanent residence. Baumgartner, App. 3d 849. As long as “ he does not rights seek to ‘exercise the or of property citizenship ” incident resulting to or from permanent residence’ at his new loca but, instead, tion rights, including continues to exercise those the vote, right original location, to at his he remains resident at the original Baumgartner, 848-49, location. Ill. App. quoting 3d at Welsh, 88-89; Rendleman, Ill. at see Tuthill v. also 342-43

Application these principles well-established to the instant case compels the conclusion that the candidate did not his Chicago abandon Washington, residence while he worked in According D.C. to the record, the candidate testified he intended in Washington, that to work D.C., for than years. intent, no more two Consistent that he with leased his home Chicago Although on a short-term basis. he and his home, initially wife were reluctant their Chicago to lease heeded the advice of their friend and real to lease the estate consultant home during their safety absence for The intent to purposes. candidate’s D.C., in Washington, work and the limited time frame then return his Chicago by testimony to home in the confirmed three personal friends. D.C., in initially apartment Washington,

The rented an candidate family joined during him the sum- but later rented a home when his Chicago and mer of 2009. The lease terms of both his the D.C., the Washington, home coincided with school provide in the least disruption possible candidate’s children order D.C., Washington, to the move to family’s their education. Prior belongings wife her friends 100 boxes candidate’s and filled storage Chicago left in the basement of the were then in a locked area family’s The described the items as the most home. candidate stored including heirloom possessions, wedding gown, his wife’s valuable albums, china, family brought an heirloom coat photograph States, grandfather immigrated candidate’s when United children, school clothes and birth outfits of candidate’s and their report and cards. projects

Additionally, family Chicago returned two or the candidate’s celebratory gatherings. appointments three times for and physician’s with the lessees of The candidate’s wife maintained contact and to Chicago repairs home in order to facilitate within the home family piano three or four occasions for the candidate’s schedule tuned in their absence. to be D.C., in

Furthermore, Washington, candidate voted never never D.C., Washington, registered his license to never his changed driver’s D.C., purchased Washington, in Washington, property never car D.C., D.C., banking Washington, and personal never conducted an intent to sell his home. never demonstrated evidence, and the challengers The failed counter candidate’s weight of this evidence established Board found that throughout in Chicago candidate intended to maintain his residence Washington, employment D.C. temporary the time of findings with the Board’s fact majority Since the could meddle weight ruling proper application the manifest or its based on standards, rul- majority the Board’s clearly erroneous attacks a new Specifically, majority promulgates ing angle. from another residency require- determining and undefined standard clear, relevant and well-established despite plethora ments courts election boards used our circuit has been precedent standard, at- majority first to launch new for decades. order from the field. precedent to clear the relevant tempts rulings Baumgartner, attempts discard majority appellate court decisions Walsh, Delk, three of the most recent candidacy. Ac- in the context of “has resided in” interpreting term are of little value because majority, to the those decisions cording requirements without residency and candidate “equate[d]” voter adequate discussion. an

27 analysis I in disagree majority’s with the characterization of the Walsh, Baumgartner, Surely opinion, and Delk. author of Hoffman, in agreed analysis holding Justice must and have concurring justices opinion. he Walsh because was one Walsh, agreed In and intent to remain at a physical presence place purposes as a home created a residence for permanent Walsh, candidacy. App. Walsh, 3d at Hoffman Ill. 976. Justice Delk, agreed that intent was factual consideration and that which he dismisses, now supported position. his Id. Baumgartner

Neither nor Walsh nor Delk has been overruled or question. Indeed, even called into supreme petitions court denied appeal Baumgartner Walsh, petition leave to both and and no was ever filed in Accordingly, Delk. these three cases remain Baumgartner case, undisturbed. is Fourth District and Walsh and Delk are District Although principle First cases. of stare decisis does require appellate an court to follow decisions of its sister districts, divisions or other persuasive. cases at issue remain majority Dillavou, The completely ignores a recent Fourth District Walsh, case that residency, addressed candidate even though on which concurred, Justice Hoffman previously favorably cited Dillavou and Walsh, length. discussed it at 3d I App. recognize 267 Ill. at 978-79. question Dillavou was whether the at issue had district; established a required residence in the however, the case cites approvingly supreme court election cases such as Clark Kreitz. County Board, Dillavou v. Electoral 260 Ill. 3d App. Officers particular court, Of relevance to the case before this Dillavou quotes language Kreitz, provides that, Clark and once established, a residence will not be lost individual’s absence from that residence unless the individual demonstrates such an intent. Dillavou, App. 3d at 132-33. majority’s attempt maneuver around the court

decision in Smith is Smith distinguished futile. cannot be from the i.e., relevant the majority here, issue should addressed whether the candidate his Chicago abandoned residence. Smith reviewed whether appellant eligible appointment judiciary for his with the requirement accordance constitutional have been resident years appointment. of Illinois for preceding five next Smith, i.e., issue, 29. Smith focused on the relevant whether the appellant lost his Illinois where he had resided in Il many years linois for he left before to live work Tennessee for Smith, several months then returned to Illinois. Ill. at 29. Smith prosecutor prove by determined the failed to clear and satisfac tory residency. Smith, evidence that the appellant lost his Illinois Ill. at 30-31.

28 the majority wrong

The when it contends Smith decision was is App. solely on the officeholder’s intent to return.” 406 Ill. 3d “based court, reaching determination, at contrary, 14. To the *** evidence,” solely “all of and not considered the circumstances appellant establish that the never intended prosecution’s failure to Smith, Specifically, 44 Ill. at abandon his Illinois residence. 30-31. that appellant’s frequent declarations his the court considered experiment he return to Tennessee and would Il move to among if he found that he could not remain with satisfaction linois Further, Smith, 44 at appellant the Tennesseans. Ill. 29. refused candidate, request particular for a partner’s his to vote Tennessee Smith, 44 Ill. he did not to lose his Illinois at saying citizenship. want books, saying Illinois law appellant The refused to sell his that 30. also them in return to Illinois and would need his probably would Smith, Moreover, only rented practice. appellant 44 Ill. at 30. Smith, at 30. when he left Illinois. 44 Ill. residence majority nominally that court in speculates supreme The Smith actually concepts it of principles applied of residence while discussed by the text. domicile. Such is baseless and refuted speculation concepts and of residence and domicile were Although terms presentation in the of the facts and law prosecution’s referenced (Smith, 29), opinion, spoke 44 Ill. at in its the Smith court of residence 29-30). (Smith, 44 Ill. at Further and never used the term domicile that the Smith more, majority’s there is no assertion support intent, defining “the solely supposedly based is analysis was App. 3d 14. principle characteristic domicile.” lost, by a clearly “that, when residence is it is union Smith stated added.) Smith, Clearly, at 30. (Emphasis and Ill. intention acts.” of Smith, Park, question residence not analyzed consistent Park, rather, but, based on intent. solely “largely” based on intent Ill. at 43. know the that court did not majority imagines

The Pope, until it and between residence domicile issued difference solely that signifies the court “has since abandoned” Pope stands. Ill. approach supposedly for which Smith intent-based cites flight fancy. Pope neither nor pure at 14. is App. 3d This Instead, legal the well-established Pope confirms criticizes Smith. established, person, by “a premise that once a residence has been with the family into another State removal of himself temporary in this State his residence return, thereby will not lose intention of a new acquisition from which the provided he does no act has failed to majority The inferred.” at 200. may Pope, a residence is that once Pope, stated principle, abide established, here, as was uncontested the court must look to the facts to determine whether the individual abandoned that residence or intended Pope, to return to it. 370 Ill. at 203. majority’s analysis goes astray

The further when construes statutory requirements to be a candidate for municipal office. expressly provides Code general ap “[t]he election law plies to the scheduling, conducting, at, manner of voting and contest (West 2008). ing municipal elections.” 65 ILCS In ad 5/3.1—10—10 dition, the supreme court has held that provisions of the Election Code may Code pari be considered in materia for purposes statutory Cinkus, construction. 228 Ill. 2d at 218-19.

Accordingly,a court that construing provisions of Municipal Code concerning candidate residency requirements should also consider the similar provisions of the Election concerning voter residency requirements. precedent Well-established shows that courts have construed the “has in” phrase resided used in section 3.1—10— 5(a) of Municipal the consistently Code with the in” “has resided phrase used in section 3—1 of Smith, 24; the Election Code. See Delk, 112 Ill. App. 738; Walsh, 3d at 976; 267 Ill. App. 3d at Baum gartner, 355 Ill. App. 3d at Nevertheless, 847-48. majority, completely unsupported law, citation any case arrives at differ ent meanings for the terms “residence” and “has resided in” as used 10—5(a) in section of the Municipal Code and sections 3—1 and 3.1— 2(a) of the Election Code. 3— The Municipal Code and the Election require Code both candidate or a voter to have “resided in” the relevant locale eligibil- 10—5(a) (West ity. Compare 65 ILCS 2008), to 10 ILCS 5/3.1— 5/3—1 (West 2008). More importantly, as the majority agrees, the Municipal expressly relies on the Election Code “qualified to define elec- 10—5(a) tor.” Specifically, section of the Code states 3.1— that a candidate municipal office must be a qualified elector and have resided in the municipality at least one next preceding the 10—5(a) (West 2008). election. 65 ILCS Consequently, 5/3.1 — reader must look at section 3—1 of the Election Code to determine what qualified constitutes a elector.

Section 3—1 then informs the reader that a qualified elector is a person who “has in” resided Illinois and the election district days (West 2008). next preceding the election. 10 Furthermore, ILCS 5/3—1 2(a) section of the Election Code informs the reader that a 3— “permanent abode is necessary to constitute a residence within the 2(a) (West 2008). meaning of Section 3—1.” 10 ILCS 5/3— This cross-reference in 2(a), section which discusses “resi- 3— dence,” to section long person discusses how “had 3— district, in” an in order to define the term “residence” resided election seriously majority’s position meaning undermines the at- not inform a court’s construc- tributed to the term “residence” does phrase tion of the “has resided in.” 2(a) clearly that “residence” defines the term Section indicates 3— 2(a) perhaps in” in section

“has resided section 3—1. While 3— in section “qualified limited to the definition of a elector” as used 10—5(a) Code, define “residence” is used to 3.1— majority, statutory “has resided in.” As stated the basic rules used within a statute interpretation require that same words meaning unless the context dictates given should be same McMahan, Ill. 2d at 513. otherwise. distinguishes text of these statutes “has

Nothing or context from “has resided “qualified resided in” as used to define a elector” time have been length in” as used to define the a candidate must Moreover, legislature if the had resident in order to run for office. in, as the actually “has resided in” to mean lived phrase intended legislature surely would have chosen majority proposes, then than the verb “reside” and use the more innocuous word live rather “residence,” charged legal implications. which are the noun majority’s proposition that support Moran does not residency require indicated voter and candidate supreme court has Moran, rejected argu court might diverge. ments village’s challenged validity plaintiff, ments of the who Moran, 20 Ill. 2d 95. the election of its new officers. incorporation and had for the people that several who voted plaintiff complained because, according qualified were not electors new officers required intent must have public policy legislative Illinois plaintiff, days for more than 30 where to have resided the area electors in the area at municipal officer to have resided required the statute Moran, 20 Ill. 2d at 104. preceding next his election. year least one noting a rejected plaintiff’s argument, the supreme The court and a candidate for between an elector statutory differentiation distinction, however, Moran, at 104. That office. 20 Ill. 2d municipal rather, but, on the residency their upon not based the nature of the residency. Specifically, necessary to establish their length of time in resided the as one who has statute defined “an ‘elector’ relevant precinct or days and in the area year, county in the for 90 State for in to have “resided required the candidate was days” for 30 whereas appointment.” or preceding next his election the area at least one between temporal read this distinction majority’s attempt to Id. The from the of indication and electors as some sort candidates law a revision of Illinois may embark on majority the court indefensible. residency requirements is concerning candidate new completely The to of a majority attempts support its creation (or, rather, exhaust- residency candidate standard with an exhaustive 10—5(d) regard- discussion of section ing) 3.1— military in the The candidate was not the ing military exception. here under did claim an section 3.1—10— attempt exemption to 5(d). Nevertheless, pages opinion the five of its majority spends while the applicability a has no on subsection of the Code that case, single explaining does not write a sentence present majority major- it resided in.” It clear that the “actually patently how defines ity attempt newly fails to to define discovered standard even its figment majority’s imagination. because it is a many How a from his home days may person stay away before majority longer “actually would decide he no resides” in it? Would A majority pick number a standard cannot us out of hat? cannot applied. defined If had majority picked be even arbitrary days sleep number of that voters need not their own beds standard, before violated this new then we arbitrary at least just be able apply would this new standard. a court Should consider the number of days a voter candidate is absent or are there other major- relevant factors under the new standard? Apparently, but, ity reason, knows for it charged some fails to share with those by if they abide to be a municipal want candidate for office. The majority’s promulgation of off a new undefined standard cuts the various boards of elections and courts circuit of this State from years over 100 of precedent. Clearly, majority must exis- posit the tence a new application standard order to avoid the manifest weight standard to the findings application Board’s fact clearly standard ruling erroneous to the Board’s candidate did says, not intend abandon The majority his residence. must, findings as it that it accepts Board’s fact. Therefore majority failing apply legal must fault the Board for as the correct principle just majority a standard that the conjured out of thin air.

If the majority truly “actually believes that resides” is the correct standard to apply, majority should this case Board remand Merely for further hearing. saying “unquestionably the candidate satisfy” newly standard, does not minted when the ink of its barely creation has on the be a paper, proper dried cannot substitution providing hearing. majority’s of a standard application new shortly disregard instant for the case shows careless law can major city. before an election for the office of in a One mayor hardly imagine potential municipal how future candidates office Illinois will maze navigate majority’s amorphous invented majority’s standard. The new standard is ill-reasoned and unfair to candidate, voters, charged applying those of us who are the law. I strongly majority’s holding completely

While believe that the erroneous, majority if the apply prospectively, were to rather retroactively candidate, than to this there would be time for sufficient thoughtfully majority’s court to review it. The decision candidate, every just particular disenfranchises not but voter voting who consider for him. would Well-settled law does countenance such a result.

Finally, majority’s certainly question decision “involves a importance Supreme such that it should be decided Court.” Ill. (eff. 2006). I Consequently, panel S. Ct. R. 316 Dec. believe this certify should Court Rule Supreme this case under which would permit majority’s expeditious review of the decision in the most man however, possible. majority, certify ner has refused to this case dissent, under Rule there than writing 316. As of this is less month and even time for ballots before election less absentee opinion mailed and returned. An of such wide-ranging import out but, rather, judges, not based on established law on the whims of two should not be allowed to stand. stated, judgment

For the reasons I would affirm the of the circuit court, which confirmed the decision of the Board. VAILAS, Petitioner-Appellee,

In re MARRIAGE OF ANASTASIA VAILAS, Respondent-Appellant. N. GEORGE Division) (2nd 1 — 10—0730 First District No.

Opinion filed November 2010.

Case Details

Case Name: Maksym v. Board of Election Commissioners

Court Name: Appellate Court of Illinois

Date Published: Jan 24, 2011

Citation: 942 N.E.2d 739

Docket Number: 1-11-0033

Court Abbreviation: Ill. App. Ct.