Maksym v. Board of Election Commissioners of the City of Chicago

SUPREME COURT CASES

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State: Illinois

Court: 1st District Appellate

Docket No: 1-11-0033 Rel

Case Date: 01/24/2011

Preview:FIRST DIVISION FILED: January 24, 2011 No. 1-11-0033 ) APPEAL FROM THE CIRCUIT ) COURT OF COOK COUNTY ) Petitioners-Appellants, ) ) v. ) No. 2010 COEL 020 ) THE BOARD OF ELECTION ) COMMISSIONERS OF THE CITY OF ) CHICAGO, et al., ) (RAHM EMANUEL, ) HONORABLE ) MARK J. BALLARD, Respondent-Appellee). ) JUDGE PRESIDING. _________________________________________________________________ WALTER P. MAKSYM and THOMAS L. McMAHON,

JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Presiding Justice Hall concurred in the judgment and opinion. Justice Lampkin dissented, 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 now appeal. For the reasons that follow, we reverse the circuit

court's judgment, set aside the Board's decision, and order that

No. 1-11-0033 the candidate's name be excluded (or, if necessary, removed) from the ballot for Chicago's February 22, 2011, mayoral election. Although the parties engaged in an extensive evidentiary hearing prior to the Board's decision, the pertinent facts are largely undisputed on appeal. It suffices for our purposes to

summarize and adopt the hearing officer's factual findings, which the Board adopted and which we hereinafter refer to as the Board's findings. In so doing, we conclude that those findings were not See Cinkus v. Village

against the manifest weight of the evidence.

of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 210, 886 N.E.2d 1011 (2008). 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 On January 2, 2009, the candidate, who had

through January 2009.

up to then served as a member of the United States House of Representatives Hermitage elected from the district in that order included to serve the in

house,

resigned

his

office

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 "inlaw 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 2

No. 1-11-0033 Woodley House) that was leased for the term spanning June 1, 2009, through June 30, 2011. Woodley house and moved The family received their mail at the 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. in that apartment since October 1, 2010. He has lived

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. 3

No. 1-11-0033 From these facts, the Election 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 have "resided in" Chicago for the one year preceding the February 22, 2011 mayoral election. The Board based this 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. The petitioners filed a petition for

judicial review in the circuit court, and, following the circuit court's confirmation of the Board's decision, they now appeal. The standards for our review of an electoral board decision mirror those applicable to review of an administrative agency decision. issue, our Cinkus, 228 Ill. 2d at 209-10. standard of review, which Thus, for any given the level of

embodies

deference we afford the agency on that issue, depends on whether the issue is one of law, one of fact, or a mixed question of law and fact. AFM Messenger Service, Inc. v. Department of Employment An

Security, 198 Ill. 2d 380, 390, 763 N.E.2d 272 (2001).

electoral board's decisions on questions of law are not binding on a reviewing court, which will review such questions under the nondeferential de novo standard. Cinkus, 228 Ill. 2d at 210-11.

An electoral board's findings of fact, however, are deemed prima facie true and correct and will not be overturned on appeal unless 4

No. 1-11-0033 they are against the manifest weight of the evidence. Cinkus, 228 Ill. 2d at 210; 735 ILCS 5/3-110 (West 2008). An electoral board's

rulings on mixed questions of law and fact--questions on which the historical facts are admitted, the rule of law is undisputed, and the only remaining issue is whether the facts satisfy a statutory standard with which the Board has expertise--will not be disturbed on review unless clearly erroneous. Cinkus, 228 Ill. 2d at 211.

The issues in this appeal distill essentially to two: whether the candidate meets the Municipal Code's requirement that he have "resided in the municipality at least one year next preceding the election" (65 ILCS 5/3.1-10-5(a) (West 2008)), and, if not, whether he is exempt from that requirement under the Election Code

provision stating that "no elector *** shall be deemed to have lost his or her residence *** by reason of his or her absence on business of the United States" (10 ILCS 5/3-2 (West 2008)). of these issues presents, first, a legal question Each

requiring

construction of the relevant statutory provisions, and, second, assuming the Board applied the correct standard (see Du Page County Airport Authority v. Department of Revenue, 358 Ill. App. 3d 476, 498 n.4, 831 N.E.2d 30 (2005)), a mixed question of law and fact regarding the Board's application of that standard. We review the

legal questions de novo and any mixed questions under the clearly erroneous standard. We begin by analyzing the statutory requirements to be a candidate for municipal office, which are located in subsection 5

No. 1-11-0033 3.1-10-5(a) of the Municipal Code: "A person is not eligible for an elective municipal office unless that person is a qualified elector of the municipality and has resided in the municipality at least one year next preceding the election or appointment ***." 65 ILCS 5/3.1-10-5(a) (West 2008). In its decision, to determine whether the candidate met the Municipal Code's requirement that he have "resided in" the

municipality for one year, the Board applied the test for residency that has been used for voter qualification under the Election Code. This approach is supported by several appellate court decisions that, without discussion, equate residency requirements imposed on voters with requirements that a candidate "resided in" his or her political unit. See e.g., People ex rel. Madigan v. Baumgartner,

355 Ill. App. 3d 842, 847-48, 823 N.E.2d 1144 (2005) (stating only that it would treat the terms as synonymous "because eligibility to run for office is closely linked to the ability to vote within a particular jurisdiction"); Walsh v. County Officers Electoral Board of Cook County, 267 Ill. App. 3d 972, 976, 642 N.E.2d 843 (1994) (assuming implicitly that the terms were synonymous); Delk v. Board of Election Commissioners of the City of Chicago, 112 Ill. App. 3d 735, 738, 445 N.E.2d 1232 (1983). Neither the Board nor the parties have, however, referred us to any supreme court opinion ratifying, adopting, or directly addressing this approach. The only cited supreme court case to 6

No. 1-11-0033 approach the issue is Smith v. People ex rel. Frisbie, 44 Ill. 16 (1867), a quo warranto action decided under the presumption that the candidate had a right to the office to which he had been appointed establish and the in which the court required the by objectors "clear to and

candidate's

disqualification

satisfactory" proof.

See Smith, 44 Ill. at 24-25.

We know of no

similar presumption applicable to this case, and the objectors here bore the less stringent burden to prove the candidate's See Board of

disqualification by a preponderance of the evidence.

Election Commissioners of the City of Chicago, Rules of Procedure 10 ("[T]he objector must bear the burden of proving by operation of law and by a preponderance of the *** evidence *** that the objections are true."). In addition, although the supreme court's discussion in Smith was based nominally on principles of "residence," it appears from its analysis that it actually applied concepts of domicile.

Despite the facts that the officeholder had left Illinois with his family and had rented out his Illinois home, the supreme court concluded, based solely on the officeholder's intent to return, that he retained his "residence" in Illinois. at 24-25. This intent-based analysis See Smith, 44 Ill. is the defining

characteristic of the principle of domicile, a legal status that, once acquired, can be "retained, animo solo, by the mere intention not to change it and adopt another." 312, 314 (1874). Hayes v. Hayes, 74 Ill. 2d

Since Smith was decided, however, our supreme 7

No. 1-11-0033 court has explained unequivocally that "it is elemental that Pope v. Board of

domicile and residence are not synonymous."

Election Commissioners, 370 Ill. 196, 202, 18 N.E.2d 214 (1938). As the supreme court further explained in Pope, the legal concept of "residence" requires a permanent abode. Pope, 370 Ill. at 200.

Accordingly, to the extent that Smith might establish that a voter or candidate could meet a residency requirement through intent alone, without any permanent abode, the supreme court has since abandoned Smith's approach. For this reason, along with the abovediscussed reasons, we do not view Smith as controlling this case. Aside from Smith, the candidate urges that the test to be applied in determining whether he has resided within Chicago for one year prior to the February 22 mayoral election is the same as the test for determining residency under the Election Code. He

bases this argument, in part, upon the assertion that the Election Code and the Municipal Code should be interpreted in pari materia. See Cinkus, 228 Ill. 2d at 218-19. The doctrine of in pari

materia, however, does not dictate that terms in separate statutes be given identical meanings; it dictates only that separate

statutes bearing on the same subject matter be given harmonious interpretation. E.g., Gerard v. White, 356 Ill. App. 3d 11, 17, We, therefore, do not view the doctrine of

826 N.E.2d 517 (2005).

in pari materia as a bar to distinguishing the Election Code's residency requirement from the Municipal Code's one-year "reside in" requirement for candidates. In fact, as we discuss below, we 8

No. 1-11-0033 view the doctrine, which is actually an outgrowth of the more general rule that courts should consider statutory provisions in light of the entire relevant statutory scheme (Gerard, 356 Ill. App. 3d at 17), as support for our conclusion that the requirements of the Election Code and the Municipal Code, although

distinguishable, may nevertheless be read in harmony. The supreme court has not directly addressed the notion that the legislature intended the Municipal Code's one-year "reside in" requirement for candidates to coextend with the residency

requirement for voters, but the court has at least once noted the distinction between candidate and voter residency requirements. In People ex rel. Moran v. Teolis, 20 Ill. 2d 95, 169 N.E.2d 232 (1960), a party argued that a voter residency requirement should be extended based on the policy embodied by a precursor to the Municipal Code section now at issue, which provided, as it provides now, that a candidate for municipal office be a qualified elector and have resided in the area at least one year preceding the election. Moran, 20 Ill. 2d at 104 (discussing Ill. Rev. Stat. The supreme court answered that the

1957, ch. 24, par. 9-87).

statute "differentiate[d] between 'electors' and those persons who may qualify for municipal office." With the exception of Moran, 20 Ill. 2d at 104. which we have already

Smith,

distinguished, the supreme court has limited its analysis of residency requirements to voter qualification cases. See Clark v.

Quick, 377 Ill. 424, 426-27, 36 N.E.2d 563 (1941) ("residence for 9

No. 1-11-0033 voting purposes means an actual place of abode" (emphasis added); " 'a real and not imaginary abode, occupied as his home or dwelling, is essential to satisfy the legal requirements as to the residence of a voter' " (emphasis added)); Coffey v. Board of Election Commissioners of East St. Louis, 375 Ill. 385, 387, 31 N.E.2d 588 (1940) ("[a] residence, for voting purposes, is not lost by temporary removal with the intention to return" (emphasis

added)); Park v. Hood, 374 Ill. 36, 43, 27 N.E.2d 838 (1940) ("[a] real and not an imaginary abode, occupied as his home or dwelling, is essential to satisfy the legal requirements as to the residence of a voter" (emphasis added)); Pope, 370 Ill. at 198-99 ("The determination of this question requires a review of the

qualifications for registration and voting" (emphasis added)); Anderson v. Pifer, 315 Ill. 164, 146 N.E. 171 (1924) ("Whether a college student is entitled to vote" based on residence is a question of fact (emphasis added)). Consequently, we have neither

a current supreme court directive, nor persuasive appellate court reasoning, compelling us to treat candidate residency requirements in the same manner as voter residency requirements, and we have some indications from the supreme court that the requirements might diverge. We must, therefore, ourselves interpret the Municipal

Code's use of the phrase "resided in" to determine if it should be construed as being synonymous with, or different from, the Election Code's residency requirements for voters. We begin this task by resort 10 to familiar principles of

No. 1-11-0033 statutory interpretation. For a court interpreting a statute, the

primary goal is to ascertain and give effect to the intention of the legislature, and the best indicator of that intent is the statute's language, given its plain and ordinary meaning. 228 Ill.2d at 216. As noted, the operative language at issue requires that a potential candidate have "resided in" the municipality for one year next preceding the election. In its verb form, "reside" generally Cinkus,

means, among other things, "to dwell permanently or continuously," or to "have a settled abode for a time." Webster's Third New

International Dictionary 1931 (1993). The word is considered to be synonymous with "live, dwell, sojourn, lodge, stay, put (up), [and] stop," but it "may be the preferred term for expressing the idea that a person keeps or returns to a particular dwelling place as his fixed, settled, or legal abode." Webster's Third New

International Dictionary 1931 (1993). These definitions are not interchangeable for our purposes: our selection of the synonym "live" as a fair definition of "resided in" would defeat the candidate's eligibility to run for office, because he most certainly "lived" outside Chicago for a large part of the statutory one-year period. On the other hand, our selection of a conception of "resided in" more akin to the idea of a permanent abode a person keeps or to which he plans to return-the definition the Board seems to have employed--would lend much greater support to the candidate's position. 11 The question for us,

No. 1-11-0033 then, becomes which of these definitions the legislature meant to invoke with its use of the phrase "reside in" in the Municipal Code. In interpreting a statute, a court should consider, in

addition to the statutory language, the reason for the law, the problems to be remedied, and the objects and purposes sought by the law. People v. Donoho, 204 Ill. 2d 159, 171-72, 788 N.E.2d 707 Our research into legislative purpose reveals that

(2003).

candidate "reside in" qualifications of the type now at issue date to our State's first constitution, which imposed upon candidates for the offices of state representative and senator the requirement that they have "resided" within the area for 12 months (or one year) prior to their election and imposed upon lieutenant governor candidates the requirement that they have "resided" within the State for two years preceding their election. 1818, art. II,

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