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11/03/94 CHERYL A. WALSH v. COUNTY OFFICERS

November 3, 1994

CHERYL A. WALSH, PETITIONER-APPELLANT,
v.
COUNTY OFFICERS ELECTORAL BOARD OF COOK COUNTY, DAVID D. ORR, AURELIA PUCINSKI AND JACK O'MALLEY, MEMBERS; DAVID B. MCAFEE, CANDIDATE; AND DAVID D. ORR IN HIS OFFICIAL CAPACITY AS COUNTY CLERK OF COOK COUNTY, ILLINOIS, RESPONDENTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE FRANCIS BARTH, PRESIDING.

Petition for Leave to Appeal Denied December 6, 1994. Released for Publication December 16, 1994.

Johnson, Hoffman, Cahill

The opinion of the court was delivered by: Johnson

JUSTICE JOHNSON delivered the opinion of the court:

On December 20, 1993, petitioner, Cheryl A. Walsh, filed a petition with the County Officers Electoral Board contesting the qualifications of respondent David McAfee, a candidate for the office of State representative for the 47th Illinois House district, alleging that McAfee failed to establish and maintain a residence in the district before the expiration of the specified period. After a hearing on Walsh's petition, the County Officers' Electoral Board (COEB) directed the State Board of Elections to certify McAfee as the Democratic candidate for the 47th representative district as its representative to the Illinois General Assembly.

Walsh immediately sought judicial review of the COEB's decision in the circuit court of Cook County. The trial court found that although the factual findings of the COEB were not against the manifest weight of the evidence, the facts did not establish an abandonment of respondent McAfee's prior address nor did they support the Conclusion that he moved to the 47th district with the intent to establish his permanent residence. Accordingly, the trial court reversed the COEB's order and sustained Walsh's objections to McAfee's qualifications. The State Board of Elections was then directed not to certify McAfee's candidacy for the general election. Shortly thereafter, McAfee filed a motion for reconsideration.

In the interim, a similar residency case, Dillavou v. County Officers Electoral Board (1994), 260 III. App. 3d 127, was decided by this court and McAfee filed another motion for reconsideration relying upon Dillavou. In light of Dillavou, the trial court vacated its prior order and affirmed the decision of the COEB. The trial court also ordered McAfee certified as the Democratic candidate for State representative from the 47th district. Subsequently, Walsh filed an appeal and sought an expedited hearing. On August 30, 1994, this court heard oral arguments in this case, issued a written order affirming the judgment of the trial court, and stated that a written opinion would be forthcoming. We now issue such opinion.

On appeal, Walsh contends (1) McAfee's actions did not establish either his presence in the 47th district or his intent to reside there; (2) McAfee did not "abandon" his residence in the 48th district and establish residency within the 47th district; and (3) McAfee bears the burden of demonstrating his change of residency.

We affirm.

The following facts are relevant. In 1990, McAfee was elected State representative to the General Assembly from the 47th district. He was reelected to that office in 1992 and again seeks to be elected on November 8, 1994. Between 1990 and 1992, the boundaries of the 47th representative district were reapportioned, rendering McAfee's residence, located at 6493 Apache Drive in Indian Head Park, Illinois, (Apache) in the 48th rather than the 47th district. Although McAfee no longer resided in the 47th district, for purposes of the 1992 election, section 2(c) of article IV of the 1970 Illinois Constitution (Ill. Const. 1970, art. IV, § 2(c)) permitted him to run as a candidate from that district despite his failure to reside within its boundaries. McAfee was reelected. Nevertheless, in order to obtain proper certification to run again in 1994, McAfee was required to establish a permanent residence in the 47th district on or before May 8, 1993, 18 months prior to the general election. Ill. Const. 1970, art. IV, § 2(c).

McAfee, his wife, Kathleen, and their two children began living at Apache in 1979. On May 2, 1993, to accommodate the redistricting scheme, McAfee moved into an apartment located at 810 Arlington Street, LaGrange, Illinois (Arlington) in the 47th district. He testified that he moved to Arlington with the intent to establish his permanent residence. His wife and children continued to reside at Apache in the 48th district. McAfee indicated that he only stayed at Apache on occasions when his wife was out of town and it was necessary for someone to stay with his son.

On May 3, 1993, he moved his personal belongings into the Arlington apartment. The next day, he changed his voter registration to Arlington and obtained a new driver's license reflecting the new Arlington address. Three days later, he obtained a LaGrange resident vehicle sticker. Early the next month, a telephone was installed at Arlington. He also notified the payroll division of the General Assembly that his correct address was Arlington.

McAfee's Arlington neighbor, Richard Pedkowski, testified that he sees McAfee a few times a week, usually in the morning or late at night and often notices McAfee's car parked near Arlington. Joanne Killian, McAfee's landlady, stated that McAfee receives mail at the apartment and uses his parking space. She also testified that McAfee spends nights at the apartment when he is not in Springfield.

After evaluating all evidence presented, the COEB found as a matter of fact that McAfee established a physical presence with the intent to remain at Arlington and overruled Walsh's objections. The trial ...


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