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. 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 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.
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 Smith, 44 Ill. 24; Welsh v. Shumway, 232 Ill. 54, 77 (1907); Baumgartner, 355 Ill. App. 3d at 848-49. 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 848-49, 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 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 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 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 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 v. County Officers Electoral Board, 260 Ill. App. 3d 127, 132 (1994). 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 have been a resident of Illinois for five years next preceding his appointment. Smith, 44 Ill. at 29. 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 29. Smith determined the prosecutor failed to prove by clear and satisfactory evidence that the appellant lost his Illinois residency. Smith, 44 Ill. at 30-31.
The majority is wrong when it contends the Smith decision was “based solely on the officeholder’s intent to return.” 406 Ill. App. 3d at 14. 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 30-31. 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 29. 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 30. The appellant also refused to sell his Illinois law books, saying that he would probably return to Illinois and would need them in his practice. Smith, 44 Ill. at 30. Moreover, the appellant only rented his residence when he left Illinois. Smith, 44 Ill. at 30.
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 29), in its opinion, the Smith court spoke of residence and never used the term domicile (Smith, 44 Ill. at 29-30). 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.” 406 Ill. App. 3d at 14. Smith clearly stated “that, when the residence is lost, it is by a union of intention and acts.” (Emphasis added.) Smith, 44 Ill. at 30. 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. 406 Ill. App. 3d at 14. 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 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 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. 24; 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 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 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 ‘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 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 to the Board for a further hearing. Merely saying the 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.” Ill. S. Ct. R. 316 (eff. Dec. 6, 2006). Consequently, I believe this panel should certify this case under 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.