Maksym v. Board of Election Commissioners of the City of Chicago

FIRST DIVISION
FILED: January 24, 2011

No. 1-11-0033

WALTER P. MAKSYM and THOMAS L. ) APPEAL FROM THE CIRCUIT
McMAHON, ) COURT OF COOK COUNTY
)
Petitioners-Appellants, )
)
v. ) No. 2010 COEL 020
)
THE BOARD OF ELECTION )
COMMISSIONERS OF THE CITY OF )
CHICAGO, et al., )
(RAHM EMANUEL, ) HONORABLE
) MARK J. BALLARD,
Respondent-Appellee). ) JUDGE PRESIDING.
_________________________________________________________________

JUSTICE HOFFMAN delivered the judgment of the court, with
opinion.
Presiding Justice Hall concurred in the judgment and opinion.
Justice Lampkin dissented, with opinion.

OPINION

The petitioners, Walter P. Maksym, Jr., and Thomas L. McMahon,

filed written objections to the candidacy of the respondent, Rahm

Emanuel (the candidate), who seeks to be a candidate for Mayor of

the City of Chicago in the Municipal General Election to be held on

February 22, 2011. After an evidentiary hearing, the Board of

Election Commissioners of the City of Chicago (the Board) dismissed

the objections and ruled that the candidate was entitled to have

his name included on the ballot as a mayoral candidate. The

petitioners sought judicial review in the circuit court of Cook

County, which confirmed the decision of the Board. The petitioners

now appeal. For the reasons that follow, we reverse the circuit

court’s judgment, set aside the Board’s decision, and order that
No. 1-11-0033

the candidate’s name be excluded (or, if necessary, removed) from

the ballot for Chicago’s February 22, 2011, mayoral election.

Although the parties engaged in an extensive evidentiary

hearing prior to the Board’s decision, the pertinent facts are

largely undisputed on appeal. It suffices for our purposes to

summarize and adopt the hearing officer’s factual findings, which

the Board adopted and which we hereinafter refer to as the Board’s

findings. In so doing, we conclude that those findings were not

against the manifest weight of the evidence. See Cinkus v. Village

of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200,

210, 886 N.E.2d 1011 (2008).

The candidate was born in Chicago and, in December 1998,

purchased a Chicago home (the Hermitage house), which he still

owns. The candidate lived with his family in that home from 1998

through January 2009. On January 2, 2009, the candidate, who had

up to then served as a member of the United States House of

Representatives elected from the district that included the

Hermitage house, resigned his office in order to serve in

Washington, D.C., as Chief of Staff to the President of the United

States. After traveling to Washington, D.C., he and his spouse

purchased additional land adjoining their Chicago property.

From January through May 2009, the candidate lived in an "in-

law apartment" in Washington, D.C., while his family remained in

the Hermitage house. From June 2009 until October 1, 2010, the

candidate, and his family, lived in a Washington, D.C., house (the

2
No. 1-11-0033

Woodley House) that was leased for the term spanning June 1, 2009,

through June 30, 2011. The family received their mail at the

Woodley house and moved most of their clothes and personal

belongings to Washington, D.C. They did, however, leave behind at

the Hermitage house several larger household items, including

televisions, a piano, and a bed, as well as several personal

possessions such as family heirlooms and books. The candidate’s

Hermitage house was leased to another family for the term of

September 1, 2009, through June 30, 2011.

At all relevant times, including the time he was in

Washington, D.C., the candidate continued to pay property taxes for

the Hermitage house, continued to hold an Illinois driver’s license

listing the Hermitage house as his address, continued to list the

Hermitage house address on his personal checks, and continued to

vote with the Hermitage house as his registered voting address. He

did, however, pay income tax in 2009 and 2010 to both Washington,

D.C., and Illinois.

On October 1, 2010, the candidate resigned his position of

Chief of Staff to the President of the United States and entered

into a lease to live in an apartment located on Milwaukee Avenue in

Chicago from October 1, 2010, through June 30, 2011. He has lived

in that apartment since October 1, 2010. In his testimony, the

candidate explained that he had always expected to serve as Chief

of Staff to the President for approximately 18 to 24 months before

returning to live in the Hermitage house.

3
No. 1-11-0033

From these facts, the Election Board concluded that the

candidate met the qualification for candidacy, contained in

subsection 3.1-10-5(a) of the Illinois Municipal Code (Municipal

Code) (65 ILCS 5/3.1-10-5(a) (West 2008)), mandating that he have

"resided in" Chicago for the one year preceding the February 22,

2011 mayoral election. The Board based this conclusion on the

evidence that the candidate maintained significant contacts with

Chicago, intended to return to Chicago and to the Hermitage house,

and had lived in Washington, D.C., solely for the purpose of

working for the President. The petitioners filed a petition for

judicial review in the circuit court, and, following the circuit

court’s confirmation of the Board’s decision, they now appeal.

The standards for our review of an electoral board decision

mirror those applicable to review of an administrative agency

decision. Cinkus, 228 Ill. 2d at 209-10. Thus, for any given

issue, our standard of review, which embodies the level of

deference we afford the agency on that issue, depends on whether

the issue is one of law, one of fact, or a mixed question of law

and fact. AFM Messenger Service, Inc. v. Department of Employment

Security, 198 Ill. 2d 380, 390, 763 N.E.2d 272 (2001). An

electoral board's decisions on questions of law are not binding on

a reviewing court, which will review such questions under the

nondeferential de novo standard. Cinkus, 228 Ill. 2d at 210-11.

An electoral board's findings of fact, however, are deemed prima

facie true and correct and will not be overturned on appeal unless

4
No. 1-11-0033

they are against the manifest weight of the evidence. Cinkus, 228

Ill. 2d at 210; 735 ILCS 5/3-110 (West 2008). An electoral board's

rulings on mixed questions of law and fact--questions on which the

historical facts are admitted, the rule of law is undisputed, and

the only remaining issue is whether the facts satisfy a statutory

standard with which the Board has expertise--will not be disturbed

on review unless clearly erroneous. Cinkus, 228 Ill. 2d at 211.

The issues in this appeal distill essentially to two: whether

the candidate meets the Municipal Code’s requirement that he have

"resided in the municipality at least one year next preceding the

election" (65 ILCS 5/3.1-10-5(a) (West 2008)), and, if not, whether

he is exempt from that requirement under the Election Code

provision stating that "no elector *** shall be deemed to have lost

his or her residence *** by reason of his or her absence on

business of the United States" (10 ILCS 5/3-2 (West 2008)). Each

of these issues presents, first, a legal question requiring

construction of the relevant statutory provisions, and, second,

assuming the Board applied the correct standard (see Du Page County

Airport Authority v. Department of Revenue, 358 Ill. App. 3d 476,

498 n.4, 831 N.E.2d 30 (2005)), a mixed question of law and fact

regarding the Board’s application of that standard. We review the

legal questions de novo and any mixed questions under the clearly

erroneous standard.

We begin by analyzing the statutory requirements to be a

candidate for municipal office, which are located in subsection

5
No. 1-11-0033

3.1-10-5(a) of the Municipal Code:

"A person is not eligible for an elective municipal

office unless that person is a qualified elector of the

municipality and has resided in the municipality at least one

year next preceding the election or appointment ***." 65 ILCS

5/3.1-10-5(a) (West 2008).

In its decision, to determine whether the candidate met the

Municipal Code’s requirement that he have "resided in" the

municipality for one year, the Board applied the test for residency

that has been used for voter qualification under the Election Code.

This approach is supported by several appellate court decisions

that, without discussion, equate residency requirements imposed on

voters with requirements that a candidate "resided in" his or her

political unit. See e.g., People ex rel. Madigan v. Baumgartner,

355 Ill. App. 3d 842, 847-48, 823 N.E.2d 1144 (2005) (stating only

that it would treat the terms as synonymous "because eligibility to

run for office is closely linked to the ability to vote within a

particular jurisdiction"); Walsh v. County Officers Electoral Board

of Cook County, 267 Ill. App. 3d 972, 976, 642 N.E.2d 843 (1994)

(assuming implicitly that the terms were synonymous); Delk v. Board

of Election Commissioners of the City of Chicago, 112 Ill. App. 3d

735, 738, 445 N.E.2d 1232 (1983).

Neither the Board nor the parties have, however, referred us

to any supreme court opinion ratifying, adopting, or directly

addressing this approach. The only cited supreme court case to

6
No. 1-11-0033

approach the issue is Smith v. People ex rel. Frisbie, 44 Ill. 16

(1867), a quo warranto action decided under the presumption that

the candidate had a right to the office to which he had been

appointed and in which the court required the objectors to

establish the candidate’s disqualification by "clear and

satisfactory" proof. See Smith, 44 Ill. at 24-25. We know of no

similar presumption applicable to this case, and the objectors here

bore the less stringent burden to prove the candidate’s

disqualification by a preponderance of the evidence. See Board of

Election Commissioners of the City of Chicago, Rules of Procedure

10 ("[T]he objector must bear the burden of proving by operation of

law and by a preponderance of the *** evidence *** that the

objections are true.").

In addition, although the supreme court’s discussion in Smith

was based nominally on principles of "residence," it appears from

its analysis that it actually applied concepts of domicile.

Despite the facts that the officeholder had left Illinois with his

family and had rented out his Illinois home, the supreme court

concluded, based solely on the officeholder’s intent to return,

that he retained his "residence" in Illinois. See Smith, 44 Ill.

at 24-25. This intent-based analysis is the defining

characteristic of the principle of domicile, a legal status that,

once acquired, can be "retained, animo solo, by the mere intention

not to change it and adopt another." Hayes v. Hayes, 74 Ill. 2d

312, 314 (1874). Since Smith was decided, however, our supreme

7
No. 1-11-0033

court has explained unequivocally that "it is elemental that

domicile and residence are not synonymous." Pope v. Board of

Election Commissioners, 370 Ill. 196, 202, 18 N.E.2d 214 (1938).

As the supreme court further explained in Pope, the legal concept

of "residence" requires a permanent abode. Pope, 370 Ill. at 200.

Accordingly, to the extent that Smith might establish that a voter

or candidate could meet a residency requirement through intent

alone, without any permanent abode, the supreme court has since

abandoned Smith’s approach. For this reason, along with the above-

discussed reasons, we do not view Smith as controlling this case.

Aside from Smith, the candidate urges that the test to be

applied in determining whether he has resided within Chicago for

one year prior to the February 22 mayoral election is the same as

the test for determining residency under the Election Code. He

bases this argument, in part, upon the assertion that the Election

Code and the Municipal Code should be interpreted in pari materia.

See Cinkus, 228 Ill. 2d at 218-19. The doctrine of in pari

materia, however, does not dictate that terms in separate statutes

be given identical meanings; it dictates only that separate

statutes bearing on the same subject matter be given harmonious

interpretation. E.g., Gerard v. White, 356 Ill. App. 3d 11, 17,

826 N.E.2d 517 (2005). We, therefore, do not view the doctrine of

in pari materia as a bar to distinguishing the Election Code’s

residency requirement from the Municipal Code’s one-year "reside

in" requirement for candidates. In fact, as we discuss below, we

8
No. 1-11-0033

view the doctrine, which is actually an outgrowth of the more

general rule that courts should consider statutory provisions in

light of the entire relevant statutory scheme (Gerard, 356 Ill.

App. 3d at 17), as support for our conclusion that the requirements

of the Election Code and the Municipal Code, although

distinguishable, may nevertheless be read in harmony.

The supreme court has not directly addressed the notion that

the legislature intended the Municipal Code’s one-year "reside in"

requirement for candidates to coextend with the residency

requirement for voters, but the court has at least once noted the

distinction between candidate and voter residency requirements. In

People ex rel. Moran v. Teolis, 20 Ill. 2d 95, 169 N.E.2d 232

(1960), a party argued that a voter residency requirement should be

extended based on the policy embodied by a precursor to the

Municipal Code section now at issue, which provided, as it provides

now, that a candidate for municipal office be a qualified elector

and have resided in the area at least one year preceding the

election. Moran, 20 Ill. 2d at 104 (discussing Ill. Rev. Stat.

1957, ch. 24, par. 9-87). The supreme court answered that the

statute "differentiate[d] between 'electors' and those persons who

may qualify for municipal office." Moran, 20 Ill. 2d at 104.

With the exception of Smith, which we have already

distinguished, the supreme court has limited its analysis of

residency requirements to voter qualification cases. See Clark v.

Quick, 377 Ill. 424, 426-27, 36 N.E.2d 563 (1941) ("residence for

9
No. 1-11-0033

voting purposes means an actual place of abode" (emphasis added);

" 'a real and not imaginary abode, occupied as his home or

dwelling, is essential to satisfy the legal requirements as to the

residence of a voter' " (emphasis added)); Coffey v. Board of

Election Commissioners of East St. Louis, 375 Ill. 385, 387, 31

N.E.2d 588 (1940) ("[a] residence, for voting purposes, is not lost

by temporary removal with the intention to return" (emphasis

added)); Park v. Hood, 374 Ill. 36, 43, 27 N.E.2d 838 (1940) ("[a]

real and not an imaginary abode, occupied as his home or dwelling,

is essential to satisfy the legal requirements as to the residence

of a voter" (emphasis added)); Pope, 370 Ill. at 198-99 ("The

determination of this question requires a review of the

qualifications for registration and voting" (emphasis added));

Anderson v. Pifer, 315 Ill. 164, 146 N.E. 171 (1924) ("Whether a

college student is entitled to vote" based on residence is a

question of fact (emphasis added)). Consequently, we have neither

a current supreme court directive, nor persuasive appellate court

reasoning, compelling us to treat candidate residency requirements

in the same manner as voter residency requirements, and we have

some indications from the supreme court that the requirements might

diverge. We must, therefore, ourselves interpret the Municipal

Code’s use of the phrase "resided in" to determine if it should be

construed as being synonymous with, or different from, the Election

Code’s residency requirements for voters.

We begin this task by resort to familiar principles of

10
No. 1-11-0033

statutory interpretation. For a court interpreting a statute, the

primary goal is to ascertain and give effect to the intention of

the legislature, and the best indicator of that intent is the

statute’s language, given its plain and ordinary meaning. Cinkus,

228 Ill.2d at 216.

As noted, the operative language at issue requires that a

potential candidate have "resided in" the municipality for one year

next preceding the election. In its verb form, "reside" generally

means, among other things, "to dwell permanently or continuously,"

or to "have a settled abode for a time." Webster’s Third New

International Dictionary 1931 (1993). The word is considered to be

synonymous with "live, dwell, sojourn, lodge, stay, put (up), [and]

stop," but it "may be the preferred term for expressing the idea

that a person keeps or returns to a particular dwelling place as

his fixed, settled, or legal abode." Webster’s Third New

International Dictionary 1931 (1993).

These definitions are not interchangeable for our purposes:

our selection of the synonym "live" as a fair definition of

"resided in" would defeat the candidate’s eligibility to run for

office, because he most certainly "lived" outside Chicago for a

large part of the statutory one-year period. On the other hand, our

selection of a conception of "resided in" more akin to the idea of

a permanent abode a person keeps or to which he plans to return--

the definition the Board seems to have employed--would lend much

greater support to the candidate’s position. The question for us,

11
No. 1-11-0033

then, becomes which of these definitions the legislature meant to

invoke with its use of the phrase "reside in" in the Municipal

Code.

In interpreting a statute, a court should consider, in

addition to the statutory language, the reason for the law, the

problems to be remedied, and the objects and purposes sought by the

law. People v. Donoho, 204 Ill. 2d 159, 171-72, 788 N.E.2d 707

(2003). Our research into legislative purpose reveals that

candidate "reside in" qualifications of the type now at issue date

to our State’s first constitution, which imposed upon candidates

for the offices of state representative and senator the requirement

that they have "resided" within the area for 12 months (or one

year) prior to their election and imposed upon lieutenant governor

candidates the requirement that they have "resided" within the

State for two years preceding their election. See Ill. Const.

1818, art. II, §2, §6; Schedule §13. Similar "reside in"

qualifications have appeared, both in Illinois’ constitutions and

in its statutes, since 1818. See e.g., Ill. Const. 1848, art. III,

§3, §4; 1861 Ill. Laws 267; 1917 Ill. Laws 258.

Although it lacks precedential force (see Bryson v. News

America Publications, Inc., 174 Ill.2d 77, 95, 672 N.E.2d 1207

(1996)), the decision in People v. Ballhorn, 100 Ill. App. 571, 573

(1901), provides what we view as a reasonable interpretation of the

purpose underlying such candidate "reside in" requirements.

Ballhorn explains that those requirements ensure "that those who

12
No. 1-11-0033

represent the local units of government shall themselves be

component parts of such units." People v. Ballhorn, 100 Ill. App.

571, 573 (1901). As Ballhorn further explains, requirements that

candidates "reside in" the area they would represent "can only be

truly served by requiring such representatives to be and remain

actual residents of the units which they represent, in

contradistinction from constructive residents. A mere constructive

resident has no better opportunities for knowing the wants and

rightful demands of his constituents, than a non-resident, and is

as much beyond the wholesome influence of direct contact with them.

*** In [the candidate residency statute] the language is not, shall

be a resident, but it is, shall 'reside within' ***." Ballhorn,

100 Ill. App. at 573. Although nearly 200 years of technological

advances since Illinois’ first candidate "reside in" requirements

may have obviated much of their necessity, the legislature has not

seen fit to alter the relevant language. We believe, therefore,

that the initial purpose of the "reside in" requirement for

candidates, and the failure of the legislature to alter that

language in the current Municipal Code, strongly indicates that the

phrase "resided in" as used in the Municipal Code requires actual,

not constructive, residence.

Another familiar principle of statutory interpretation teaches

that a "statute should be evaluated as a whole, with each provision

construed in connection with every other section." Cinkus, 228

Ill. 2d at 216-17. For our purposes, this maxim requires that we

13
No. 1-11-0033

consider not only subsection 3.1-10-5(a) of the Municipal Code, but

also any other relevant portions of the statute.

Subsection 3.1-10-5(a) of the Municipal Code sets forth two

qualifications for candidates: it states that a candidate must be

"a qualified elector of the municipality and [must have] resided in

the municipality at least one year next preceding the election."

65 ILCS 5/3.1-10-5(a) (West 2008). These two qualifications are

stated separately and in the conjunctive.

The first part of the conjunctive--the "qualified voter"

requirement--invokes the qualifications for electors stated in

sections 3-1 and 3-2 of the Election Code. See 10 ILCS 5/3-1, 3-2

(West 2008). In pertinent part, those statutes provide as follows:

"§ 3-1. Every person *** who has resided in this State

and in the election district 30 days next preceding any

election therein *** and who is a citizen of the United

States, of the age of 18 or more years is entitled to vote at

such election for all offices and on all propositions." 10

ILCS 5/3-1 (West 2008).

and

"§ 3-2. (a) A permanent abode is necessary to constitute

a residence within the meaning of Section 3-1. No elector or

spouse shall be deemed to have lost his or her residence in

any precinct or election district in this State by reason of

his or her absence on business of the United States, or of

this State." 10 ILCS 5/3-2(a) (West 2008).

14
No. 1-11-0033

In Park v. Hood, our supreme court held:

"It is well settled that the terms 'residence' and

'permanent abode,' as employed in [the Election Code], are

synonymous. [Citations.] A real and not an imaginary abode,

occupied as his home or dwelling, is essential to satisfy the

legal requirements as to the residence of a voter. One does

not lose residence by temporary removal with the intention to

return, or even with a conditional intention of acquiring a

new residence, but when one abandons his home and takes up his

residence in another county or election district, he loses his

privilege of voting in the district from which he moved.

[Citations.] The question of residence is largely one of

intention, and a voter is competent to testify as to his

intention, although such testimony is not necessarily

conclusive." Park, 374 Ill. at 43.

From the admitted facts in this case, we find that the

candidate clearly satisfied the qualifications to be an elector for

the February 22, 2011, municipal election. Without addressing the

question of whether the Hermitage house constituted the candidate’s

permanent place of abode while it was under lease, we conclude that

the candidate clearly falls within the exception to section 3-1

articulated in subsection 3-2(a) (see Pope, 370 Ill. at 199);

namely, that he absented himself from the City of Chicago on

business of the United States and therefore did not lose the voter

residency status that he had theretofore established in Chicago.

15
No. 1-11-0033

Having determined that the candidate satisfies the requirement

to be an elector, we must still address the question of whether he

has "resided in" the City of Chicago for at least one year next

preceding the February 22, 2011, mayoral election; the second

requirement for candidacy. 65 ILCS 5/3.1-10-5(a) (West 2008).

As we have observed, the "reside in" requirement is stated

separately from, and in addition to, the requirement that he be a

qualified elector of Chicago in order to be a candidate for

municipal office. The fact that the two requirements are stated

separately and in the conjunctive leads to the inference that the

legislature intended that they be considered separately from, and

in addition to, each other.

This inference is bolstered by language from the remainder of

section 3.1-10-5. Subsection 3.1-10-5(d) provides that:

"If a person (i) is a resident of a municipality

immediately prior to the active duty military service of that

person or that person’s spouse, (ii) resides anywhere outside

of the municipality during that active duty military service,

and (iii) immediately upon completion of that active duty

military service is again a resident of the municipality, then

the time during which the person resides outside the

municipality during active duty military service is deemed to

be time during which the person is a resident of the

municipality for purposes of determining the residency

requirement under subsection (a)." 65 ILCS 5/3.1-10-5(d)

16
No. 1-11-0033

(West 2008).

For the point that the Municipal Code’s "reside in" requirement is

separate from the residency requirement for an elector, we find

particularly interesting subsection 3.1-10-5(d)’s concluding

language that its exception applies "for purposes of determining

the residency requirement under subsection (a)." Subsection 3.1-10-

5(a) contains only one explicit residency requirement: that a

candidate have "resided in the municipality for one year." Thus,

subsection 3.1-10-5(d)’s reference to "the residency requirement

under subsection (a)" must refer to the explicit one-year candidate

residency requirement contained in subsection 3.1-10-5(a) and not

the voter residency requirements set forth in sections 3-1 and 3-2

of the Election Code.

Additionally, subsection 3.1-10-5(d), which we quote above,

uses the words "resident" and "reside" to different effect. The

subsection uses the word "resident" first to describe the concept

of legal residence, by referring to a military serviceperson who

"is a resident of a municipality." Just after that reference,

however, the subsection uses the word "reside" to refer to the

serviceperson’s act of "resid[ing] anywhere outside of the

municipality." This usage of the word "reside" does not denote the

concept of legal residence, but rather the act of actually living

somewhere outside the municipality.

Our interpretation that, in using the phrase "resides anywhere

outside of the municipality" in subsection 3.1-10-5(d), the

17
No. 1-11-0033

legislature intended to refer to the act of living somewhere

outside the municipality is further supported by the wording of the

very next clause of that subsection. The clause refers to a person

becoming "again a resident of the municipality" (emphasis added)

upon his or her return after military service. If the military

serviceperson must "again" become a resident of the municipality,

then it logically follows that the person lost his or her resident

status at some time prior thereto. The only manner in which

subsection (d) contemplates a person losing residency status is by

living outside of the municipality. Thus, subsection 3.1-10-5(d)

assumes that a person who is absent from a municipality will not

meet the "reside in" requirement of subsection 3.1-10-5(a), but, by

reason of the provisions thereof, a compliant military

serviceperson is deemed to have been a resident during the period

of absence.

Basic rules of statutory construction provide that "where the

same words appear in different parts of the same statute, they

should be given the same meaning unless something in the context

indicates that the legislature intended otherwise." McMahan v.

Industrial Comm’n, 183 Ill. 2d 499, 513, 702 N.E.2d 545 (1998).

Under this rule, the fact that the legislature used the word

"reside" to mean actually live in subsection 3.1-10-5(d) of the

Municipal Code strongly indicates that it intended the same meaning

in subsection (a).

The candidate resists this interpretation by arguing that

18
No. 1-11-0033

subsection 3.1-10-5(d) "addresses the situation in which a service

member *** abandons his municipal residence and establishes

residence elsewhere." We have two difficulties with the

candidate’s reading of subsection (d). Our first difficulty is

that it would interpret the statute to apply to an almost

imperceptibly narrow class of individuals; namely, those

servicepeople who somehow establish full legal residency, that is,

a permanent place of abode outside the municipality, then, after

having formed an intent to remain outside the municipality, take

the first opportunity to return. Our interpretation of the

subsection, on the other hand, would have it apply in the logically

feasible, and presumably quite common, situation in which a

serviceperson’s duty draws him or her from the municipality, and,

immediately upon completion of his or her military assignment, the

serviceperson returns.

Our second difficulty with the candidate’s reading of

subsection 3.1-10-5(d) is that it is belied by the legislative

history underlying the subsection. During debate for the senate

bill whose passage added subsection (d) to section 3.1-10-5 of the

Municipal Code (see 95th Gen. Assem., Senate Bill 253, 2007 Sess.),

Senator Luechtefeld, one of the senators who presented the bill,

explained the original version as follows:

"Senate Bill 253 provides that if a person meets all the

requirements necessary to run for municipal office, but their

time as an active duty member of the military interrupted the

19
No. 1-11-0033

residency requirement, they shall be permitted to run for that

office. A *** situation occurred in my district where an

individual was in Iraq and *** he came back, wanted to run for

municipal office, but did not meet the one-year residency

requirement. This would simply allow them to come back to

that same district, the same ward, and run as if they had been

there." 95th Gen. Assem., Senate Proceedings, Marcy 29, 2007,

at 13 (statements of Senator Luechtefeld).

Senator Luechtefeld described the final version of the bill in

similar terms:

"If you’ll remember, I had a bill that we passed unanimously

out of here to allow a person to go into the military and ***

be gone maybe a year or two and then come back to a community

and run for office, that he would not lose his eligibility

because of residency. The House has changed the bill a little

bit, but it passed over there unanimously also." 95th Gen.

Assem., Senate Proceedings, May 31, 2007, at 37-38 (statements

of Senator Luechtefeld).

This legislative history supports our interpretation that

subsection 3.1-10-5(d) of the Municipal Code uses the word "reside"

to mean actually live rather than having legal voting residence,

and it further undercuts the candidate's argument to the contrary.

Based on the foregoing analysis, we conclude that, under

subsection 3.1-10-5(a) of the Municipal Code, a candidate must meet

not only the Election Code’s voter residency standard, but also

20
No. 1-11-0033

must have actually resided within the municipality for one year

prior to the election, a qualification that the candidate

unquestionably does not satisfy. Because the candidate does not

satisfy that standard, he may be eligible for inclusion on the

ballot only if he is somehow exempt from the Municipal Code’s

"reside in" requirement.

To that end, the candidate argues that, regardless of whether

he meets the candidate eligibility requirements of subsection 3.1-

10-5(a) of the Municipal Code, he nonetheless may be qualified as

a candidate by virtue of section 3-2 of the Election Code, which

provides as follows:

"(a) A permanent abode is necessary to constitute a

residence within the meaning of Section 3-1. No elector or

spouse shall be deemed to have lost his or her residence in

any precinct or election district in this State by reason of

his or her absence on business of the United States, or of

this State." 10 ILCS 5/3-2 (West 2008).

According to the candidate, he falls within this exception

because his absence from Chicago was attributable to his service as

the Chief of Staff to the President of the United States. We agree

with the candidate that his service constituted "business of the

United States" and thus that this exception applies to him. We

disagree, however, with his position that the exception saves his

candidacy. In our view, the exception embodied by section 3-2 of

the Election Code applies only to voter residency requirements, not

21
No. 1-11-0033

to candidate residency requirements.

We base this conclusion largely on the plain language of the

Election Code. That plain language limits the reach of the

"business of the United States" exception to "elector[s]" or their

spouses; it makes no mention of "candidates." Further, as we have

noted, we must interpret statutes "as a whole, with each provision

construed in connection with every other section." Cinkus, 228

Ill. 2d at 216-17. Section 3-2's "business of the United States"

exception is housed not only in the Election Code, but in a portion

of the Election Code dealing exclusively with voter qualification,

in fact in an Article titled "Qualification of Voters." See 10

ILCS 5/3-1 through 3-5 (West 2008). As explained above, the

Municipal Code sets forth two qualifications for candidates: they

must meet the Election Code’s standards for a "qualified voter,"

and they must have "resided in" the municipality for one year

preceding the election. The location of section 3-2's "business of

the United States" exception--in the Election Code, and in an

article of the Election Code dedicated exclusively to voter

qualification--supports the conclusion that the exception applies

only to the Election Code’s "qualified voter" standard, and not to

any supplemental candidate qualifications located outside the

Election Code.

We find further support for our construction of the reach of

section 3-2 in the rule that a court, when possible, should read a

statute so as to give effect to all of its provisions and render

22
No. 1-11-0033

none meaningless or superfluous. E.g., Grafner v. Dept. Of

Employment Security, 393 Ill. App. 3d 791, 803, 914 N.E.2d 520

(2009). As we have noted above, among its provisions regarding

candidate qualification, the Municipal Code contains an exception

that, for purposes of the candidate residency requirement of

subsection 3.1-10-5(a) of the Municipal Code, allows those in

active military service to be deemed residents of a municipality

during the pendency of their military service even when they reside

outside the municipality during their service. 65 ILCS 3.1-10-5(d)

(West 2008). If section 3-2 of the Election Code applied to

candidates, then its statement that a person will not lose his or

her residence "by reason of his or her absence on business of the

United States" would certainly apply to relax the candidate

residency qualifications on those who serve in the nation’s armed

forces. If we were to interpret section 3-2 as applying to

candidates as well as voters, then, subsection 3.1-10-5(d) of the

Municipal Code would become wholly redundant. Our duty to give

meaning to statutory enactments where possible, like our duty to

follow the plain language of the statutes we interpret, therefore

compels the conclusion that section 3-2 of the Election Code was

intended to create a residency exception for voters, not

candidates.

We are not the first to draw the distinction between voters

and candidates for purposes of the type of exception contained in

section 3-2 of the Election Code. The exception traces to

23
No. 1-11-0033

Illinois’ founding charter, which imposed a residency requirement

on state representatives but excepted those who were "absent on the

public business of the United States." Ill. Const. 1818, art. II,

§3. Illinois’ next constitution, in 1848, stated the exception

three times: once for state representatives (Ill. Const. 1848, art.

III, §3), once for state senators (Ill. Const. 1848, art. III, §4),

and once for voters (Ill. Const. 1848, art. VI, §5). The 1848

Constitution thus separately delineated "business of the United

States" exceptions for candidates and for voters. Illinois’ next

constitution, in 1870, retained the "business of the United States"

exception as it related to voters (see Ill. Const. 1870, art. VII,

§4), yet conspicuously omitted the exception as it related to

candidates. (The voter exception was later incorporated into the

Election Code (see 1959 Ill. Laws 2168) and was not included in our

current constitution.) This history tells us that, for purposes of

the "business of the United States" residency exception, this State

has for over 150 years recognized a distinction between voters and

candidates and has retained the exception only for voters. That

revelation, combined with our interpretation of the language of

section 3-2 and its interrelation with subsection 3.1-10-5(d) of

the Municipal Code, convinces us that section 3-2's "business of

the United States" exception applies only to voters, not to

candidates. Accordingly, it cannot avail the candidate here.

For the foregoing reasons, we conclude that the candidate

neither meets the Municipal Code’s requirement that he have

24
No. 1-11-0033

"resided in" Chicago for the year preceding the election in which

he seeks to participate nor falls within any exception to the

requirement. Accordingly, we disagree with the Board’s conclusion

that he is eligible to run for the office of Mayor of the City of

Chicago. We reverse the circuit court’s judgment confirming the

Board’s decision, set aside the Board’s decision, and, pursuant to

Supreme Court Rule 366(a)(5) (Ill. Sup. Ct. R. 366(a)(5) (eff. Feb.

1, 1994)), order that the candidate’s name be excluded (or, if

necessary, removed) from the ballot for the February 22, 2011,

Chicago mayoral election.

Reversed.

JUSTICE LAMPKIN, dissenting.

I dissent. I would affirm the judgment of the circuit court,

which confirmed the decision of the Board. The candidate is

entitled to have his name included on the ballot as a mayoral

candidate because he has satisfied the requirements of section 3.1-

10-5 of the Municipal Code where he is both a qualified elector of

Chicago and has resided in Chicago at least one year next preceding

the election.

I disagree with the majority’s contrary conclusion that the

candidate is not eligible to be on the ballot because that

conclusion is based on an analysis of two issues–establishing

residency and a statutory exemption to the residency

requirement–that are not relevant to the resolution of this case.

25
No. 1-11-0033

The majority acknowledges that the candidate had established a

residency in Chicago long before 2009 where he had both a physical

presence here and the intent to remain. The majority failed,

however, to move past the issue of establishing residency to the

relevant analysis, which turns on whether the candidate’s

residency, which he had indisputably held, was abandoned when he

worked in Washington, D.C., and leased his Chicago home.

The Board’s ruling–that the candidate in 2009 and 2010 did not

abandon his status as a resident of Chicago and, thus, remained a

resident of Chicago even though he was largely absent from this

city from January 2009 until October 1, 2010–was not clearly

erroneous. Intent is an issue of fact (Delk, 112 Ill. App. 3d at

738), and the majority acknowledges that the Board’s fact findings

were not against the manifest weight of the evidence. This

acknowledgment should have ended this case, and resulted in this

court affirming the circuit court’s judgment, which confirmed the

Board’s ruling that the preponderance of the evidence established

that the candidate never formed an intent to either change or

terminate his residence in Chicago, or establish his residence in

Washington, D.C., or any place other than Chicago.

Because the candidate had established his Chicago residency,

it is presumed to continue until the contrary is shown, and the

burden of proof is on the person who claims that there has been a

26
No. 1-11-0033

change. Hatcher v. Anders, 117 Ill. App. 3d 236, 239 (1983). In

the foundational case Kreitz v. Behrensmeyer, 125 Ill. 141 (1888),

the supreme court stated:

“We have frequently held that when a party leaves his

residence, or acquires a new one, it is the intention

with which he does so that is to control. Hence the

shortest absence, if, at the time, intended as a

permanent abandonment, is sufficient, although the party

may soon afterwards change his intention; while, on the

other hand, an absence for months or even years, if all

the while intended as a mere temporary absence for some

temporary purpose, to be followed by a resumption of the

former residence, will not be an abandonment.” Kreitz,

125 Ill. at 195.

The majority does not acknowledge Kreitz even though it has

been the leading case defining “residence” since its issuance 122

years ago. To the extent the majority addresses the long-held

principle that a party’s intention when he leaves or acquires his

residence largely controls the determination of whether he has

abandoned the residence, the majority distorts this principle (see

discussion of Smith below). Then, the majority simply reads the

principle out of its analysis, choosing instead to adopt a

completely new standard.

27
No. 1-11-0033

In order to have changed one’s residence, a person, both in

fact and intention, must have abandoned the former residence and

acquired a new one by actual residence with the intent to make it

a permanent home. See Frisbie, 44 Ill. 16; Welsh v. Shumway, 232

Ill. 54, 77 (1907); Baumgartner, 355 Ill. App. 3d at 848.

Affirmative acts must be proved to sustain the abandonment of a

residence, and a temporary absence, no matter how protracted, does

not equate with abandonment. Hughes v. Illinois Public Aid Comm’n,

2 Ill. 2d 374, 380-81 (1954); Davis v. Davis, 9 Ill. App. 3d 922,

926 (1973); Hatcher, 117 Ill. App. 3d at 239.

Because a person may have only one residence for voting

purposes, when a person has established a physical presence in two

locations, he must make a decision about which location he intends

to make his permanent residence. Baumgartner, 355 Ill. App. 3d at

849. As long as he does not seek to “exercise the rights of

property or of citizenship incident to or resulting from permanent

residence” at his new location but, instead, continues to exercise

those rights, including the right to vote, at his original

location, he remains a resident at the original location.

Baumgartner, 355 Ill. App. 3d at 849, quoting Welsh, 232 Ill. at

88-89; see also Tuthill v. Rendleman, 387 Ill. 321, 342-43 (1944).

Application of these well-established principles to the

instant case compels the conclusion that the candidate did not

28
No. 1-11-0033

abandon his Chicago residence while he worked in Washington, D.C.

According to the record, the candidate testified that he intended

to work in Washington, D.C., for no more than two years.

Consistent with that intent, he leased his Chicago home on a short-

term basis. Although he and his wife were initially reluctant to

lease their Chicago home, they heeded the advice of their friend

and real estate consultant to lease the home during their absence

for safety purposes. The candidate’s intent to work in Washington,

D.C., for the limited time frame and then return to his home in

Chicago was confirmed by the testimony of three personal friends.

The candidate initially rented an apartment in Washington,

D.C., but later rented a home when his family joined him during the

summer of 2009. The lease terms of both his Chicago residence and

the Washington, D.C., home coincided with the school year of the

candidate’s children in order to provide the least disruption

possible to their education. Prior to the family’s move to

Washington, D.C., the candidate’s wife and her friends filled 100

boxes with belongings that were then left in a locked storage area

in the basement of the Chicago home. The candidate described the

stored items as the family’s most valuable possessions, including

his wife’s wedding gown, heirloom china, family photograph albums,

an heirloom coat brought by the candidate’s grandfather when he

immigrated to the United States, the clothes and birth outfits of

the candidate’s children, and their school projects and report

29
No. 1-11-0033

cards.

Additionally, the candidate’s family returned to Chicago two

or three times for physician’s appointments and celebratory

gatherings. The candidate’s wife maintained contact with the

lessees of the Chicago home in order to facilitate repairs within

the home and to schedule three or four occasions for the piano of

the candidate’s family to be tuned in their absence.

Furthermore, the candidate never voted in Washington, D.C.,

never changed his driver’s license to Washington, D.C., never

registered his car in Washington, D.C., never purchased property in

Washington, D.C., never conducted personal banking in Washington,

D.C., and never demonstrated an intent to sell his Chicago home.

The challengers failed to counter the candidate’s evidence,

and the Board found that the weight of this evidence established

that the candidate intended to maintain his residence in Chicago

throughout the time of his temporary employment in Washington, D.C.

Since the majority could not meddle with the Board’s fact

findings or its ruling based on the proper application of the

manifest weight and clearly erroneous standards, the majority

attacks the Board’s ruling from another angle. Specifically, the

majority promulgates a new and undefined standard for determining

candidate residency requirements despite the plethora of clear,

relevant and well-established precedent that has been used by our

circuit courts and election boards for decades. In order to launch

30
No. 1-11-0033

its new standard, the majority first attempts to clear the relevant

precedent from the field.

The majority attempts to discard the rulings in Baumgartner,

Walsh, and Delk, three of the most recent appellate court decisions

interpreting the term “has resided in” in the context of candidacy.

According to the majority, those decisions are of little value

because they “equate[d]” the voter and candidate residency

requirements without an adequate discussion.

I disagree with the majority’s characterization of the

analysis in Baumgartner, Walsh, and Delk. Surely the author of

this opinion, Justice Hoffman, must have agreed with the analysis

and holding in Walsh because he was one of the concurring justices

on that opinion. In Walsh, he agreed that physical presence and

intent to remain at a place as a permanent home created a residence

for purposes of candidacy. Walsh, 267 Ill. App. 3d at 976. In

Walsh, Justice Hoffman agreed that intent was a factual

consideration and that Delk, which he now dismisses, supported his

position. Id.

Neither Baumgartner, nor Walsh, nor Delk has been overruled or

even called into question. Indeed, the supreme court denied

petitions for leave to appeal in both Baumgartner and Walsh, and no

petition was ever filed in Delk. Accordingly, these three cases

remain undisturbed. Baumgartner is a Fourth District case, and

31
No. 1-11-0033

Walsh and Delk are First District cases. Although the principle of

stare decisis does not require an appellate court to follow the

decisions of its sister divisions or other districts, the cases at

issue remain persuasive.

The majority completely ignores Dillavou, a recent Fourth

District case that addressed candidate residency, even though

Walsh, on which Justice Hoffman previously concurred, favorably

cited Dillavou and discussed it at length. Walsh, 267 Ill. App. 3d

at 978-79. I recognize that the question in Dillavou was whether

the candidate at issue had established a residence in the required

district; however, the case cites approvingly to supreme court

election cases such as Clark and Kreitz. Dillavou, 260 Ill. App.

3d at 132. Of particular relevance to the case before this court,

Dillavou quotes the language of Clark and Kreitz, which provides

that, once established, a residence will not be lost by an

individual’s absence from that residence unless the individual

demonstrates such an intent. Dillavou, 260 Ill. App. 3d at 132-33.

The majority’s attempt to maneuver around the supreme court

decision in Smith is futile. Smith cannot be distinguished from

the relevant issue the majority should have addressed here, i.e.,

whether the candidate abandoned his Chicago residence. Smith

reviewed whether the appellant was eligible for his appointment to

the judiciary in accordance with the constitutional requirement to

32
No. 1-11-0033

have been a resident of Illinois for five years next preceding his

appointment. Smith, 44 Ill. at 23-24. Smith focused on the

relevant issue, i.e., whether the appellant lost his Illinois

residency where he had resided in Illinois for many years before he

left to live and work in Tennessee for several months and then

returned to Illinois. Smith, 44 Ill. at 24. Smith determined the

prosecutor failed to prove by clear and satisfactory evidence that

the appellant lost his Illinois residency. Smith, 44 Ill. at 24-

25.

The majority is wrong when it contends the Smith decision was

“based solely on the officeholder’s intent to return.” To the

contrary, the court, in reaching its determination, considered “all

of the circumstances in evidence,” and not solely the prosecution’s

failure to establish that the appellant never intended to abandon

his Illinois residence. Smith, 44 Ill. at 24-25. Specifically,

the court considered the appellant’s frequent declarations that his

move to Tennessee was only an experiment and he would return to

Illinois if he found that he could not remain with satisfaction

among the Tennesseans. Smith, 44 Ill. at 24. Further, the

appellant refused his partner’s request to vote in Tennessee for a

particular candidate, saying he did not want to lose his Illinois

citizenship. Smith, 44 Ill. at 24. The appellant also refused to

sell his Illinois law books, saying that he would probably return

33
No. 1-11-0033

to Illinois and would need them in his practice. Smith, 44 Ill. at

24. Moreover, the appellant only rented his residence when he left

Illinois. Smith, 44 Ill. at 24.

The majority speculates that the supreme court in Smith

nominally discussed principles of residence while it actually

applied concepts of domicile. Such speculation is baseless and

refuted by the text. Although the terms and concepts of residence

and domicile were referenced in the prosecution’s presentation of

the facts and law (Smith, 44 Ill. at 22-23), in its opinion, the

Smith court spoke of residence and never used the term domicile

(Smith, 44 Ill. at 24-25). Furthermore, there is no support for

the majority’s assertion that the Smith analysis was based solely

on intent, which supposedly is “the defining characteristic of the

principle of domicile.” Smith clearly stated “that, when the

residence is lost, it is by a union of intention and acts ***.”

(Emphasis added). Smith, 44 Ill. at 25. Clearly, Smith,

consistent with Park, analyzed the question of residence not solely

based on intent but, rather, “largely” based on intent. Park, 374

Ill. at 43.

The majority imagines that the supreme court did not know the

difference between residence and domicile until it issued Pope, and

that Pope signifies that the court “has since abandoned” that

solely intent-based approach for which Smith supposedly stands.

34
No. 1-11-0033

This is pure flight of fancy. Pope neither cites nor criticizes

Smith. Instead, Pope confirms the well-established legal premise

that once a residence has been established, “a person, by temporary

removal of himself and his family into another State with the

intention to return, will not thereby lose his residence in this

State provided he does no act from which the acquisition of a new

residence may be inferred.” Pope, 370 Ill. at 200. The majority

has failed to abide by the principle, stated in Pope, that once a

residence is established, as was uncontested here, the court must

look to the facts to determine whether the individual abandoned

that residence or intended to return to it. Pope, 370 Ill. at 203.

The majority’s analysis goes further astray when it construes

the statutory requirements to be a candidate for municipal office.

The Municipal Code expressly provides that “[t]he general election

law applies to the scheduling, manner of conducting, voting at, and

contesting of municipal elections.” 65 ILCS 5/3.1-10-10 (West

2008). In addition, the supreme court has held that provisions of

the Election Code and Municipal Code may be considered in pari

materia for purposes of statutory construction. Cinkus, 228 Ill.

2d at 218-19.

Accordingly, a court that is construing provisions of the

Municipal Code concerning candidate residency requirements should

also consider the similar provisions of the Election Code

35
No. 1-11-0033

concerning voter residency requirements. Well-established

precedent shows that courts have construed the “has resided in”

phrase used in section 3.1-10-5(a) of the Municipal Code

consistently with the “has resided in” phrase used in section 3-1

of the Election Code. See Smith, 44 Ill. 16; Delk, 112 Ill. App.

3d at 738; Walsh, 267 Ill. App. 3d at 976; Baumgartner, 355 Ill.

App. 3d at 847-48. Nevertheless, the majority, completely

unsupported by citation to any case law, arrives at different

meanings for the terms “residence” and “has resided in” as used in

section 3.1-10-5(a) of the Municipal Code and sections 3-1 and 3-

2(a) of the Election Code.

The Municipal Code and the Election Code both require a

candidate or a voter to have “resided in” the relevant locale for

eligibility. Compare 65 ILCS 5/3.1-10-5(a) (West 2008) to 10 ILCS

5/3-1 (West 2008). More importantly, as the majority agrees, the

Municipal Code expressly relies on the Election Code to define

“qualified elector.” Specifically, section 3.1-10-5(a) of the

Municipal Code states that a candidate for municipal office must be

a qualified elector and have resided in the municipality at least

one year next preceding the election. 65 ILCS 5/3.1-10-5(a) (West

2008). Consequently, the reader must look at section 3-1 of the

Election Code to determine what constitutes a qualified elector.

Section 3-1 then informs the reader that a qualified elector

36
No. 1-11-0033

is a person who “has resided in” Illinois and the election district

30 days next preceding the election. 10 ILCS 5/3-1 (West 2008).

Furthermore, section 3-2(a) of the Election Code informs the reader

that a “permanent abode is necessary to constitute a residence

within the meaning of Section 3-1.” 10 ILCS 5/3-2(a) (West 2008).

This cross-reference in section 3-2(a), which discusses

“residence,” to section 3-1, which discusses how long a person “had

resided in” an election district, in order to define the term

residence seriously undermines the majority’s position that the

meaning attributed to the term “residence” does not inform a

court’s construction of the phrase “has resided in.”

Section 3-2(a) clearly indicates that “residence” defines the

term “has resided in” in section 3-1. While section 3-2(a) is

perhaps limited to the definition of a “qualified elector” as used

in section 3.1-10-5(a) of the Municipal Code, “residence” is used

to define “has resided in.” As stated by the majority, the basic

rules of statutory interpretation require that the same words used

within a statute should be given the same meaning unless the

context dictates otherwise. McMahan, 183 Ill. 2d at 513.

Nothing in the text or context of these statutes distinguishes

“has resided in” as used to define a “qualified elector” from “has

resided in” as used to define the length of time a candidate must

have been resident in order to run for office. Moreover, if the

37
No. 1-11-0033

legislature had intended the phrase “has resided in” to mean

actually lived in, as the majority proposes, then the legislature

surely would have chosen to use the more innocuous word live rather

than the verb reside and the noun residence, which are charged with

legal implications.

Moran does not support the majority’s proposition that the

supreme court has indicated voter and candidate residency

requirements might diverge. In Moran, the supreme court rejected

the arguments of the plaintiff, who challenged the validity of the

village’s incorporation and the election of its new officers.

Moran, 20 Ill. 2d 95. The plaintiff complained that several people

who had voted for the new officers were not qualified electors

because, according to the plaintiff, Illinois public policy and

legislative intent must have required the electors to have resided

in the area for more than 30 days where the statute required a

municipal officer to have resided in the area at least one year

next preceding his election. Moran, 20 Ill. 2d at 104.

The supreme court rejected the plaintiff’s argument, noting a

statutory differentiation between an elector and a candidate for

municipal office. Moran, 20 Ill. 2d at 104. That distinction,

however, was not based upon the nature of their residency but,

rather, on the length of time necessary to establish their

residency. Specifically, the relevant statute defined “an

38
No. 1-11-0033

‘elector’ as one who has resided in the State for one year, in the

county for 90 days and in the area or precinct for 30 days” whereas

the candidate was required to have “resided in the area at least

one year next preceding his election or appointment.” Id. The

majority’s attempt to read this temporal distinction between

candidates and electors as some sort of indication from the supreme

court that the majority may embark on a revision of Illinois law

concerning candidate residency requirements is indefensible.

The majority attempts to support its creation of a completely

new candidate residency standard with an exhaustive (or, rather,

exhausting) discussion of section 3.1-10-5(d) of the Municipal Code

regarding the military exception. The candidate here was not in

the military and did not attempt to claim an exemption under

section 3.1-10-5(d). Nevertheless, while the majority spends five

pages of its opinion on a subsection of the Municipal Code that has

no applicability to the present case, the majority does not write

a single sentence explaining how it defines “actually resided in.”

It is patently clear that the majority fails to even attempt to

define its newly discovered standard because it is a figment of the

majority’s imagination.

How many days may a person stay away from his home before the

majority would decide he no longer “actually resides” in it? Would

the majority have us pick a number out of a hat? A standard which

39
No. 1-11-0033

cannot be defined cannot be applied. If the majority had picked

even an arbitrary number of days that voters need not sleep in

their own beds before they violated this new arbitrary standard,

then at least we would be able to apply this new standard. Should

a court consider just the number of days a voter or candidate is

absent or are there other relevant factors under the new standard?

Apparently, only the majority knows but, for some reason, fails to

share it with those charged to abide by it if they want to be a

candidate for municipal office.

The majority’s promulgation of a new undefined standard cuts

off the various boards of elections and circuit courts of this

State from over 100 years of precedent. Clearly, the majority must

posit the existence of a new standard in order to avoid the

application of the manifest weight standard to the Board’s fact

findings and application of the clearly erroneous standard to the

Board’s ruling that the candidate did not intend to abandon his

residence. The majority says, as it must, that it accepts the

Board’s findings of fact. Therefore the majority must fault the

Board for failing to apply as the correct legal principle of

candidate residency a standard that the majority just conjured out

of thin air.

If the majority truly believes that “actually resides” is the

correct standard to apply, the majority should remand this case

back to the Board for a further hearing. Merely saying the

40
No. 1-11-0033

candidate “unquestionably does not satisfy” its newly-minted

standard, when the ink of its creation has barely dried on the

paper, cannot be a proper substitution for providing a hearing.

The majority’s application of a new standard in the instant case

shows a careless disregard for the law shortly before an election

for the office of mayor in a major city. One can hardly imagine

how future potential candidates for municipal office in Illinois

will navigate the maze invented by the majority’s amorphous

standard. The majority’s new standard is ill-reasoned and unfair

to the candidate, voters, and those of us who are charged with

applying the law.

While I strongly believe that the majority’s holding is

completely erroneous, if the majority were to apply it only

prospectively, rather than retroactively to this candidate, there

would be sufficient time for our supreme court to thoughtfully

review it. The majority’s decision disenfranchises not just this

particular candidate, but every voter in Chicago who would consider

voting for him. Well-settled law does not countenance such a

result.

Finally, the majority’s decision certainly “involves a

question of such importance that it should be decided by the

Supreme Court.” Supreme Court Rule 316 (Official Reports Advance

Sheet No. 26 (Dec. 20, 2006), R. 316, eff. Dec. 6, 2006.

Consequently, I believe this panel should certify this case under

41
No. 1-11-0033

Supreme Court Rule 316, which would permit review of the majority’s

decision in the most expeditious manner possible. The majority,

however, has refused to certify this case under Rule 316. As of

the writing of this dissent, there is less than one month before

the election and even less time for absentee ballots to be mailed

out and returned. An opinion of such wide-ranging import and not

based on established law but, rather, on the whims of two judges,

should not be allowed to stand.

For the reasons stated, I would affirm the judgment of the

circuit court, which confirmed the decision of the Board.

42