WALTER P. MAKSYM et al., Appellees, v. THE BOARD OF ELECTION COMMISSIONERS OF THE CITY OF CHICAGO et al., Appellants.
No. 111773
Supreme Court of Illinois
January 27, 2011
Based upon the foregoing, we determine that section 5—4—3 authorizes a trial court to order the taking, analysis and indexing of a qualifying offender‘s DNA, and the payment of the analysis fee only where that defendant is not currently registered in the DNA database. We therefore reverse the appellate court‘s judgment, and vacate that portion of the trial court‘s order requiring defendant to submit an additional DNA sample and requiring him to pay the $200 DNA analysis fee. We affirm defendant‘s conviction in all other respects.
Appellate court judgment reversed;
circuit court judgment vacated in part
and affirmed in part.
Michael K. Forde and Michael J. Gill, of Mayer Brown, LLP, Michael J. Kasper, Kevin M. Forde and Richard J. Prendergast, all of Chicago, for appellees.
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 conсurred, 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
Although the parties engaged in an extensive evidentiary hearing prior to the Board‘s decision, the pertinent fаcts 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
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, 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.
“‘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.‘”
“‘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 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. 406 Ill. App. 3d 9, 12 (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
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. 406 Ill. App. 3d at 13. 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.”2 406 Ill. App. 3d at 14.
The court also found unpersuasive the candidate‘s argument that the Election Code defines residence as “permanent abode” (
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].” 406 Ill. App. 3d at 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. News America Publications, Inc., 174 Ill. 2d 77, 95 (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,
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
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. 406 Ill. App. 3d at 24-25 (Lampkin, J., dissenting). Applying this standard, the dissent would not have found the Board‘s decision clearly erroneous. 406 Ill. App. 3d at 25-26 (Lampkin, J., dissenting).
We allowed the candidate‘s petition for leave to appeal and stayed the appellate court‘s decision pending this appeal.
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, 24 (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 appointеd 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 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 eleсtion 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 24. This evidence, the court concluded, was insufficient to
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, 847-48 (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 Officers 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 аbsence for months, or even years, if all the while intended as a mere temporary absence for some temporary purpose, to be followed by a resumption of the former residence, will not be an abandonment‘” (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
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 the one at issue 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 25. 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 controlling authority in this case. Neither
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
“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 appointmеnt ***.”
65 ILCS 5/3.1—10—5(a) (West 2008).
For present purposes, the critical question is what does this section 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) (Freeman, J., dissenting, joined by Kilbride, J.). 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. Id. 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,
“[T]he shortest absence, if at the time intended as a permanent abandonment, is sufficient, although the party may soon afterwards change his intention; while, on the other hand, an absence for months, or even years, if all the while intended as a mere temporary absence for some temporary purpose, to be followed by a resumption of the former residence, will not be an abandonment.” Kreitz 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.” (Internal quotation marks оmitted.) 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, 387-88 (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. People v. Estate of Moir, 207 Ill. 180, 186 (1904).
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 the 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 tо 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. Heydenreich v. Lyons, 374 Ill. 557, 566 (1940) (eligibility for local public aid); In re Petition of Mulford, 217 Ill. 242, 249 (1905) (eligibility to serve as executor of decedent‘s estate); People v. Estate of Moir, 207 Ill. 180, 186-87 (1904) (liability for inheritance tax); Smith v. People ex rel. Frisbie, 44 Ill. 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
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
Of course, the appellate court did not see the statutory question this way. But its reasons for departing from over 100 years of settled 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.” 406 Ill. App. 3d at 15. 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.‘” 406 Ill. App. 3d at 15 (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
“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
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
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 four to five days a week in Washington, D.C. If a Representative from a Chicago congressional district owns a condominium in Washington, D.C., 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
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 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 er
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. Estate of Moir, 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,
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 licеnse. 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
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 Illinоis resident 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.
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 nineteenth 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.
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, agrеe 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
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 Restate
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 permanеnt 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 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.
The dissenting justice below accused the appellate court majority of engaging in a “pure flight of fancy” (406 Ill. App. 3d at 28 (Lampkin, J., dissenting)), of “conjur[ing]” its result “out of thin air” (id. at 31), and of having a “careless disregard for the law” (id. at 31). The dissenting justice also stated that the result was a “figment of the majority‘s imagination” (id. at 31), based on the “whims of two judges” (id. at 32). 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 considеrations. The tone taken by the majority today, and the refusal to acknowledge conflicting case law, unfairly perpetuates that notion.
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. [Citation.] 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) (Miller, J., specially concurring, joined by Freeman, C.J., and McMorrow, J.).
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 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 domicilе 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.
Notes
“§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 elector or spouse shall be deemed to have lost his or her residence in any precinct or election district in this State by reason of his or her absence on business of the United States, or of this State.”
10 ILCS 5/3—2 (West 2008).