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Walter P. Maksym et al v. the Board of Election

January 27, 2011

WALTER P. MAKSYM ET AL.,
APPELLEES,
v.
THE BOARD OF ELECTION COMMISSIONERS OF THE CITY OF CHICAGO ET AL.,
APPELLANTS.



The opinion of the court was delivered by: Justice Thomas

JUSTICE THOMAS delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Garman, Karmeier, and Theis concurred in the judgment and opinion.

Justices Freeman and Burke specially concurred, 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 appealed, and the appellate court reversed the circuit court's judgment, set aside the Board's decision, and ordered that the candidate's name be excluded (or, if necessary, removed) from the ballot for Chicago's February 22, 2011, mayoral election. No. 1--11--0033. We allowed the candidate's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).

Although the parties engaged in an extensive evidentiary hearing prior to the Board's decision, the pertinent facts are largely undisputed on appeal. The appellate court summarized and adopted the Board's factual findings. In doing so, the court concluded that the factual findings were not against the manifest weight of the evidence. We agree with the appellate court that the Board's factual 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 (2008). Accordingly, we set forth the facts largely as summarized in the appellate court opinion.

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 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.

From these facts, the 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 had "resided in" Chicago for the one year preceding the February 22, 2011, mayoral election. The Board noted that the objectors and candidate agreed that "residence" in this context means "permanent abode," and that two elements are required for a permanent abode: (1) physical presence; and (2) an intent to remain there as a permanent abode. The Board cited case law establishing that, once a permanent abode is established, residence continues until abandoned. The Board concluded that the objectors had failed to establish that the candidate abandoned his residence, basing its 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. Among the findings made by the Board were the following:

--"The preponderance of this evidence establishes that the Candidate never formed an intention to terminate his residence in Chicago; never formed an intention to establish his residence in Washington, D.C., or any place other than Chicago; and never formed an intention to change his residence."

--"The preponderance of this evidence further establishes that throughout the relevant period in 2009 and 2010 the Candidate maintained significant contacts in and with the City of Chicago and the State of Illinois, including continuing ownership of real estate; continuing ownership of valuable personal property of kinds that a reasonable person would store at the place he deemed to be his permanent residence and to which he planned to return."

--"The preponderance of this evidence, particularly including the coincidental terms of the leases and extensions of leases of the Hermitage House and the Woodley House compel the inference that the Candidate and his spouse intended to return to occupy the Hermitage House and abide there."

--"The preponderance of this evidence establishes that the Candidate intended his presence in Washington, D.C., solely for the purpose of permitting him to discharge what he perceived to be a duty to serve the United States in the capacity of the Chief of Staff to the President of the United States."

--"The weight of the evidence shows that the Objectors failed to bear their burdens of proof and persuasion that the Candidate intended, in 2009 or 2010, to effect any change in his residence or to be anything other than a resident of Chicago for electoral purposes."

The petitioners filed a petition for judicial review in the circuit court, and the court confirmed the Board's decision. The circuit court agreed with the Board that the relevant question was whether the candidate abandoned his Chicago residence when he became Chief of Staff to the President of the United States. The court determined that the Board's finding that the objectors had failed to show that the candidate abandoned his Chicago residence was not clearly erroneous.

The objectors appealed, and the appellate court reversed the decision of the circuit court and set aside the decision of the Board. The court noted that the Board's factual findings are deemed prima facie true and correct and may be overturned only if they are against the manifest weight of the evidence. Moreover, an electoral board's rulings on mixed questions of law and fact--questions on which the undisputed law is applied to the historical facts--are reviewed under the clearly erroneous standard. No. 1--11--0033, slip op. at 5 (citing Cinkus, 228 Ill. 2d at 210-11). The court determined, however, that it first needed to resolve a question of statutory construction to which the de novo standard of review would apply: what is the meaning of the phrase "resided in" in the section of the Municipal Code requiring that a candidate must have "resided in the municipality at least one year next preceding the election" (65 ILCS 5/3.1--10--5(a) (West 2008)). No. 1--11--0033, slip op. at 4-5.

The court noted that the Board had used the definition of residence that is used in voter qualification cases (permanent abode). Moreover, the court acknowledged that using the same definition for voter qualification and candidate qualification was an approach that was supported by all of the published appellate court case law on the issue. However, the court was unconvinced that this was the correct test because it could not find a published supreme court opinion ratifying, adopting, or directly addressing this approach. No. 1--11--0033, slip op. at 6. The court acknowledged that in Smith v. People ex rel. Frisbie, 44 Ill. 16 (1867), this court used an intent-based approach in determining a candidate residency question, but found this unpersuasive because a different standard of proof was applicable in that case.*fn1 The court also noted that Smith was a quo warranto action in which the candidate already held office and that there was a presumption that he was entitled to hold the office to which he had been appointed. The court stated that it was unaware of any "similar presumption applicable to this case."*fn2 No. 1--11--0033, slip op. at 7.

The court also found unpersuasive the candidate's argument that the Election Code defines residence as "permanent abode" (10 ILCS 5/3--2 (West 2008)) and that this court has expressly directed that the Municipal Code and the Election Code be construed in pari materia. See Cinkus, 228 Ill. 2d at 218-19. The court determined that the in pari materia doctrine meant only that the statutes should be given a harmonious construction, not necessarily an identical one. No. 1--11--0033, slip op. at 8. The court found more relevant than Cinkus--a two-year-old case mandating in pari materia construction--a quote from a 1960 case, People ex rel. Moran v. Teolis, 20 Ill. 2d 95, 104 (1960), in which this court stated that the statute at issue "differentiate[d] between 'electors' and those persons who may qualify for municipal office."*fn3 No. 1--11--0033, slip op. at 9.

In other words, the court determined that it was painting on a blank canvas, with no applicable authority to guide it other than the Moran quote. The court ultimately determined that, as used in section 3.1--10--5(a), "resided in" does not refer to a permanent abode, but rather where a person "actually live[s]" or "actually reside[s]." No. 1--11--0033, slip op. at 20-21. However, the court never explained what it meant by these terms, other than to say that the candidate does not qualify as a resident if this definition is used.

The court arrived at this definition by employing the following reasoning. First, the court relied on People v. Ballhorn, 100 Ill. App. 571 (1901), a decision that it acknowledged had no precedential authority under Bryson v. New America Publications, 174 Il. 2d 77, 1935 (1996) (appellate court decisions filed prior to 1935 have no binding authority), for the proposition that the purpose of candidate residency requirements is that candidates be component parts of the units they represent, and that this can be accomplished only by actual, rather than constructive, residency. No. 1--11--0033, slip op. at 12-13.

Next, the court noted that section 3.1--10--5 of the Municipal Code sets forth two qualifications for candidates and that they are stated in the conjunctive: 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."*fn4 The court determined that the candidate was clearly a qualified elector because, without regard to whether the Hermitage House constituted the candidate's permanent place of abode while it was under lease, the candidate qualified for the exception set forth in section 3--2(a) of the Election Code, which states that "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." The court held that the candidate was on the business of the United States when he was employed as Chief of Staff to the President of the United States. No. 1--11--0033, slip op. at 14-15.

The court next took up the meaning of "resided in." The court acknowledged that section 3.1--10--5(a) contains a residency requirement, but held that its use of the term "resided in" means something other than residency as that term is traditionally understood. The court supported this interpretation by contending that the verb "resides" and the noun "resident" are used to entirely different effect in section 3.1--10--5(d), which applies to people (or their spouses) on active military duty. The court believed that the terms "resident" and "resides" connote different meanings in this subsection, and thus must have different meanings elsewhere in section 3.1--10--5. According to the court, "resides" in subsection (d) means "actually live," so "resided in" in subsection (a) must also mean "actually live." No. 1--11--0033, slip op. at 16-20. Finally, the court determined that the "business of the United States" ...


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