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04/21/94 DAVID W. DILLAVOU AND RICK DESART v.

April 21, 1994

DAVID W. DILLAVOU AND RICK DESART, PETITIONERS-APPELLANTS AND CROSS-APPELLEES,
v.
COUNTY OFFICERS ELECTORAL BOARD OF SANGAMON COUNTY, JOSEPH T. AIELLO, CARL OBLINGER AND DONALD CADAGIN, MEMBERS, MICHAEL D. CURRAN, CANDIDATE, JOSEPH T. AIELLO, IN HIS OFFICIAL CAPACITY AS COUNTY CLERK OF SANGAMON COUNTY, RESPONDENTS-APPELLEES AND CROSS-APPELLANTS.



Appeal from Circuit Court of Sangamon County. No. 94MR27. Honorable Thomas R. Appleton, Judge Presiding.

As Corrected May 13, 1994. Petition for Rehearing Denied and Released for Publication May 19, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Honorable John T. McCULLOUGH, P.j., Honorable James A. Knecht, J., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Mccullough

JUSTICE McCULLOUGH delivered the opinion of the court:

In December 1993, candidate Michael D. Curran filed nominating papers with the State Board of Elections for the office of State representative from the 100th district. Petitioners, who are residents of the 100th district, filed objections to the nominating papers contending, among other things, that Curran was not a bona fide resident of the 100th district. Three days of hearings on the objectors' petition were held before the three-member County Officers Electoral Board of Sangamon County (Electoral Board), which denied the objections. Curran's name was subsequently certified for placement on the Democratic ballot for the March 15, 1993, primary.

Petitioners appealed the Electoral Board's decision to the circuit court which, after hearing, entered an order on February 28, 1994, finding that the Electoral Board's determination that Curran was a resident of the 100th representative district was not against the manifest weight of the evidence.

On March 2, 1994, petitioners filed their appeal of that decision with this court and sought an expedited hearing. Respondent Curran filed a cross-appeal and a motion to dismiss challenging the jurisdiction of both the circuit court and the Electoral Board to adjudicate the question of his residence.

Because of the imminence of the pending primary election and the need for a prompt decision, we allowed petitioners' motion for an expedited appeal and took the case under submission on the basis of trial briefs filed by the parties and the record before the Electoral Board and circuit court. On March 8, 1994, this court heard oral argument and subsequently issued a summary, oral order affirming the judgment of the trial court and indicated that an opinion on this matter would issue at a later date. We now deliver that opinion.

The facts giving rise to the dispute over Curran's residency are as follows. Curran is the incumbent Democratic State representative from the 100th House District. He was originally elected as a representative from the 99th House District in 1982 and stood for reelection in that district through the 1990 election. In 1991, the legislative districts were reapportioned pursuant to constitutional mandate. (Ill. Const. 1970, art. IV, § 3.) As a result of boundary changes, Curran's Springfield home at 1040 Woodland (Woodland) is no longer in the territory encompassing the district from which he was elected. Because the redistricting process was not completed until early 1992, however, Curran was able to run for election in the 100th district (which contains a majority of his former district) despite the fact that he now lived in the newly constituted 99th district. Curran knew, however, that to qualify for reelection in the 100th district in 1994 he had to establish residence in the 100th district at least 18 months prior to the 1994 general election. Ill. Const. 1970, art. IV, § 2(c).

As late as December 1993 Curran was considering a candidacy for Congress or the State Senate in addition to his reelection in the 100th district. Curran had no intention of running in the 99th House District, however, because another Democrat had captured that seat in the 1992 election.

Curran and his wife, Cathy Tasner Curran, are the parents of three boys, ages 6, 7, and 11. Curran's two youngest children attend the Butler Elementary School and are in kindergarten and second grade, respectively. The oldest child is in the sixth grade at the Iles Middle School. When Curran decided to run for reelection, he and his wife began looking for a new residence in the 100th district which was also within the Butler and Iles school districts. Maintaining the younger children in the Butler school was extremely important to the Currans because they were familiar with the teachers and were very satisfied with the education which the school provided their children.

In February 1993, the Currans made a bid to purchase a home which was within both the 100th House District and the Butler school district. The owners of the property, however, did not accept the offer and the Currans abandoned any hope of consummating the sale in April 1993 when the sellers did not make a counteroffer.

Curran realized that he had only a short time to take up residence in the 100th district to qualify to become a candidate for his House seat. He then rented an townhouse apartment in the 100th district from a friend at 2272 Concord (Concord) at the end of April 1993 and moved in prior to May 3, 1993. Curran's wife and children remained at the Woodland address, however, and had no intention of moving into the townhouse with him. They planned to reunite when a suitable home could be purchased. The Concord address was not within the Butler school district. Curran conceded that he did not provide a security deposit or execute a lease on the Concord property but rented it from month to month. He advised the owners that he was looking for a more permanent home and did not expect to be in the apartment for an entire year.

Curran subsequently purchased a house at 441 Jackson Parkway (Jackson), one block from the State Capitol, in September 1993. This home is also within the 100th district but not within the Butler school district. Curran testified that the principal reason for Purchasing the Jackson property was its proximity to his office at the Capitol. Secondarily, Curran wanted to establish, "absolutely," that he maintained a residence in the 100th district. Curran's wife and children still live in the Woodland ...


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