dissenting:
The majority holds that candidate Ward’s failure to reside within the fourth subcircuit at the time he filed his nomination petitions did not comply with the provisions of article VI of the Illinois Constitution (Ill. Const. 1970, art. VI), and therefore Ward’s name should be removed from the ballot. I respectfully dissent.
It is undisputed that candidate Ward resides in Will County but that his residence was not located in the Fourth Subcircuit at the time he filed the required nomination petitions pursuant to section 12.1 Further, the parties agree that candidate Ward did not misrepresent the location of his residence.
For purposes of this dissent, it is important to understand my view of the precise issue raised in this appeal. Here, we are called upon to decide whether, in the absence of a statute, the Illinois Constitution itself requires a person to contemporaneously reside in a certain location at the time the candidate files his or her nomination petitions.
We are not called upon to consider whether a statute or some other directive could require subcircuit residency that contemporaneously exists at the time a person seeks to place his or her name on a ballot for judicial office, in a primary election, by filing petitions as required by section 12. Our lawmakers have not enacted such a statute and thus a constitutional analysis of that issue is not at hand. Similarly, it should be emphasized that we are not called upon to decide whether the successful judicial candidate in a primary election or the successful candidate in the general election must have been a resident of the selection district at the time of the election. Again, that issue regarding residency in a subcircuit at the time of the primary or general election is not ripe for our review in this case.
Since the phrase “eligible for judicial office” appears in section 12 and the same phrase is included in the caption selected by the drafters for section 11,2 I begin by construing those provisions together. The language of section 11 discusses residency without a specific reference to the time the residency must exist. Consequently, section 11 does not expressly answer the question whether residency in the selection district must be established at the time petitions are filed. Moreover, the language of section 12 allows a person “eligible for the office of judge” to place his or her name on a ballot without specific reference to all three requirements listed in section 11 and without direct reference to section 11 itself.
Here, the circuit court’s written order found both sections 11 and 12 “are NOT ambiguous” (emphasis in original). I respectfully disagree and conclude, when construed together, the language of section 11 and section 12 can be subject to multiple logical constructions based on the language of the Illinois Constitution alone and based on the decisions of our supreme court.
Turning to the language incorporated into the Constitution, the term “unit” seems to have a specific meaning as provided by the drafters of the 1970 Constitution in section 7 of article VI. The term “unit” identifies two distinct geographical areas of Cook County which would separately select judges at large. See Ill. Const. 1970, art. VI, §7. In my view, other than a resident Cook County judge, other judicial candidates seeking election in Cook County were required by the Constitution to reside in smaller geographical units and the voters in the smaller units would then select those candidates at large from the designated unit.
Pursuant to section 7, the First Judicial Circuit was the only circuit that contained smaller geographical residency “units” for the purpose of at-large judicial elections. Similarly, pursuant to the Constitution, the resident circuit judge from each county would be elected by the voters from within the boundaries of the county itself. I suggest the Constitution did not require residency in a unit smaller than the boundaries of a county for any judicial circuit other than the First Judicial Circuit. To require residency in an area smaller than a single county in this case, perhaps would be contrary to the decision in Thies. See Thies v. State Board of Elections, 124 Ill. 2d 317, 325 (1988).
Next, I suggest that the members of our supreme court have also recognized section 11 is “arguably ambiguous.” Thies, 124 Ill. 2d at 323. In Thies, when construing the constitutionality of Public Act 85—866, as amended by Public Act 85—903, our supreme court contemplated separate examples where residency would be dictated by the boundaries of either entire judicial circuits or smaller subcircuits. However, based on my interpretation of the majority’s opinion, the majority in Thies did not provide a definitive view of the term “unit,” as used in article VI, section 11, because it was not outcome-determinative in that case, which dealt with the interpretation of article VI, section 7(a). Thies, 124 Ill. 2d at 323.
Thus, I am not at all certain of the proper definition of the term “unit.” If our supreme court later defines “unit” to be a singular county or the full circuit, candidate Ward could be considered compliant since the parties agree he has resided in Will County at all times relevant to this appeal. While my confusion regarding the definition of “unit” prevails, I can state with certainty that our supreme court did not decide when residency in the “unit,” circuit, subcircuit, or elective district should occur relative to the filing of petitions in their decision in Thies, or later in Maddux v. Blagojevich, 233 Ill. 2d 508 (2009).
Consequently, I embrace our supreme court’s general observation, as expressed in Thies, that section 11 is arguably ambiguous. I observe the ambiguity applies to both the definition of “unit” and the timing of residency for purposes of placing a person’s name on the ballot to begin the nomination process. In light of this ambiguity, I feel compelled to interpret both sections 11 and 12 together in a fashion that recognizes the importance our democracy places on liberal ballot access. In this view, every arguable doubt should be resolved in favor of eligibility, whether we are construing statutes or the constitution. See Livingston v. Ogilvie, 43 Ill. 2d 9 (1969); Velazquez v. Soliz, 141 Ill. App. 3d 1024 (1986).
The majority points to Supreme Court Rule 39 (210 Ill. 2d R. 39) to support the argument that our supreme court has construed section 11 to require established residency in a certain area before a person can seek appointment as an associate judge. However, in reality, associate judges never place their names on a ballot in a primary election with nomination petitions. Similarly, candidates for associate judge never seek selection from a unit of circuit judges that is smaller than the entire circuit. See 210 Ill. 2d R. 39. Consequently, the analogy based on Supreme Court Rule 39, which is central to the majority’s analysis, does not seem applicable in my view. I respectfully disagree that Supreme Court Rule 39 contains an express directive from our supreme court on the timing of subcircuit residency for the purpose of placing a candidate’s name on a ballot in a primary election.
Employing the rules of construction to favor ballot access and absent specific direction from our supreme court on the timing of residency related to the time petitions are filed, I assert the Illinois Constitution does not clearly impose a current subcircuit residency requirement in order for candidate Ward’s name to appear on the primary ballot. Further, I am not persuaded that the history of the Illinois Constitution provides insight into whether residency must be established by a judicial candidate before the date of the primary election since residency requirements have gradually eroded over the course of history.
Consequently, I conclude that our state constitution does not require current residency in a specific selective unit, smaller than a county, in order to place a candidate’s name on a ballot in a primary election.3 This construction promotes ballot access and allows the primary voters in the subcircuit to accept or reject candidate Ward after first considering his qualifications and unique characteristics, including the location of his residence. Moreover, I do not express any opinion regarding whether residency requirements may be imposed by future legislative enactment for the purpose of the nomination and the subsequent election of persons to hold judicial office in the future.
Therefore, I thoughtfully and most respectfully disagree with the majority in this case. Accordingly, I would affirm the decision of the electoral board denying Mr. Goodman’s challenge to candidate Ward’s candidacy because residency in the subcircuit was not clearly required at the time Ward submitted his petitions for the primary election.
For the sake of clarity, all references to section 12 refer to section 12 of article VI of the 1970 Illinois Constitution.
Again, for the sake of clarity, all references to section 11 refer to section 11 of article VI of the 1970 Illinois Constitution.
Once selected to be a judge after the general election, a statute imposes subcircuit residency requirements throughout the judge’s term. 705 ILCS 35/ 2f—4(d) (West 2008). We note that the constitutionality of this statute is not before us.