Maksym v. Board of Elections Commissioners

Docket No. 111773.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

WALTER P. MAKSYM et al., Appellees, v. THE BOARD OF

ELECTION COMMISSIONERS OF THE CITY OF CHICAGO et

al., Appellants.

Opinion filed January 27, 2011.

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,

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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.”

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–“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

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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.1 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.”2 No. 1–11–0033,

1

The appellate court left it to the reader to discern how the standard of

proof was in any way relevant to what standard the court used to determine

the merits of the residency issue.

2

Because the election has yet to occur, there is, of course, no presumption

that the candidate is entitled to the office he seeks. Nevertheless, there is a

similar presumption applicable to the specific question before us, in that the

candidate is presumed to be a Chicago resident. See In re Moir’s Estate, 207

Ill. 180, 186 (1904), in which this court explained that “when a residence is

once established the presumption is that it continues.”

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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.”3 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

3

This court did so, however, only in the context of setting forth the

different time limits for the respective residency requirements. See Moran,

20 Ill. 2d at 104.

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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.”4 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)

4

In pertinent part, the relevant statutes for determining whether one is a

qualified elector provide that:

“§3–1. Every person *** who has resided in this State and in the

election district 30 days next preceding any election therein *** and

who is a citizen of the United States, of the age of 18 or more years

is entitled to vote at such election for all offices and on all

propositions.” 10 ILCS 5/3–1 (West 2008).

“§3–2. (a) A permanent abode is necessary to constitute a

residence within the meaning of Section 3–1. No electors 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.” 10 ILCS 5/3–2

(West 2008).

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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” exception stated

in section 3–2 of the Election Code applied only to the qualification

of electors and did not apply to the candidate qualifications set forth

in section 3.1–10–5 of the Municipal Code. No. 1–11–0033, slip op.

at 20-24.

Accordingly, although the appellate court found that the candidate

unquestionably was a qualified elector, it concluded that he did not

meet the residency requirement of section 3.1–10–5 because he did

not “actually reside” or “actually live” in Chicago for the entire year

next preceding the election. The court did so without ever explaining

what it meant by the terms “actually reside” or “actually live.” The

court ordered the candidate’s name excluded or removed from the

ballot.

Justice Lampkin dissented. Justice Lampkin disagreed with nearly

every aspect of the majority’s decision and would have applied the

traditional definition of residence that has been established in Illinois

law. No. 1–11–0033, slip op. at 26-28 (Lampkin, J., dissenting).

Applying this standard, the dissent would not have found the Board’s

decision clearly erroneous. No. 1–11–0033, slip op. at 28-30

(Lampkin, J., dissenting).

We allowed the candidate’s petition for leave to appeal and stayed

the appellate court’s decision pending this appeal.

ANALYSIS

Before proceeding to the merits, we wish to emphasize that, until

just a few days ago, the governing law on this question had been

settled in this State for going on 150 years. In Smith v. People ex rel.

Frisbie, 44 Ill. 16 (1867), this court was faced with a question

remarkably similar to that which is before us today. Smith, a longtime

resident of Illinois, had been appointed a circuit judge by the governor

of Illinois, and a quo warranto action was brought to remove Smith

from that office on the grounds that he had not been an Illinois

resident “for at least five years next preceding *** his appointment,”

as the Illinois Constitution then required. In support of their action,

the objectors pointed to the fact that Smith had moved with his family

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to Tennessee for eight months during the relevant five-year residency

period.

In concluding that Smith’s eight-month sojourn to Tennessee did

not result in an abandonment of his established Illinois residency, this

court explained that, once established, “residence is lost *** by a

union of intention and acts” and that “the intention in many cases will

be inferred from the surrounding circumstances.” Smith, 44 Ill. at 24.

This court then examined the “surrounding circumstances” and found

that (1) Smith frequently declared that his move to Tennessee was

only an experiment; (2) just two months after arriving in Tennessee,

Smith expressed a desire to return to Illinois as soon as became

feasible; (3) Smith at no time expressed an unqualified intention to

remain in Tennessee; (4) Smith declined to vote in a Tennessee

election because “he desired to do no act by which he would lose his

citizenship in [Illinois]”; (5) he refused to sell his Illinois law books

prior to his move, saying that “he would probably return, and would

then need them in his [Illinois] law practice”; and (6) he “only rented

his [Illinois] residence when he left.” Smith, 44 Ill. at 23-24. This

evidence, the court concluded, was insufficient to “establish a

presumption of loss of residence.” Smith, 44 Ill. at 24-25.

Since Smith was decided, the principles established in it have been

consistently and faithfully applied in the candidacy context by the

appellate court of this State. See, e.g., People ex rel. Madigan v.

Baumgartner, 355 Ill. App. 3d 842, 847 (2005) (“ ‘[W]here a person

leaves his residence and goes to another place, even if it be another

[s]tate, with an intention to return to his former abode, or with only

a conditional intention of acquiring a new residence, he does not lose

his former residence so long as his intention remains conditional.’ ”

(quoting Pope v. Board of Election Commissioners, 370 Ill. 196, 201

(1938)); Walsh v. County Officer Electoral Board, 267 Ill. App. 3d

972, 976 (1994) (whether candidate abandoned old residence in favor

of new residence presents a question of intent, which is measured both

by the “surrounding circumstances” and the candidate’s declarations

thereof); Dillavou v. County Officers Electoral Board, 260 Ill. App.

3d 127, 132 (1994) (whether candidate abandoned established

residence is a question of intent, and “ ‘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

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residence, will not be an abandonment’ ”) (quoting Kreitz v.

Behrensmeyer, 125 Ill. 141, 195 (1888)). Moreover, the principles

established in Smith and uniformly followed since were the very

principles relied upon by the hearing officer, the Board, and the circuit

court below.

Thus, from April 1867 through January 24 of this year, the

principles governing the question before us were settled. Things

changed, however, when the appellate court below issued its decision

and announced that it was no longer bound by any of the law cited

above, including this court’s decision in Smith, but was instead free to

craft its own original standard for determining a candidate’s residency.

See No. 1–11–0033, slip op. at 6-8 (dismissing the foregoing

authority in its entirety). Thus, our review of the appellate court’s

decision in this case begins not where it should, with an assessment of

whether the court accurately applied established Illinois law to the

particular facts, but with an assessment of whether the appellate court

was justified in tossing out 150 years of settled residency law in favor

of its own preferred standard. We emphatically hold that it was not.

The Smith principles control this case, plain and simple. With the

sole exception of the prescribed time period, the provision at issue in

Smith is identical to one the issue at here. Both provide that, in order

to be eligible for public office, a person must reside in the relevant

jurisdiction for some period “next preceding the election or

appointment.” And in both cases, the sole issue presented is whether

the person seeking to hold the office in question had abandoned his

Illinois residency by virtue of an extended relocation to another part

of the country. In answering that question in Smith, this court

explained that, once established, “residence is lost *** by a union of

intention and acts” and that “the intention in many cases will be

inferred from the surrounding circumstances.” Smith, 44 Ill. at 24. The

court then examined the surrounding circumstances, including both

Smith’s words and Smith’s actions, to determine whether Smith had

abandoned his Illinois residency. Ultimately, the court concluded that

he had not. In every relevant way, the analysis that this court

employed in Smith is the very analysis that the hearing officer, the

Board, and the circuit court below employed, and they were correct

in doing so. Smith has never been overruled, and it is directly on point.

For two reasons, the appellate court concluded that Smith was not

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controlling authority in this case. Neither of these reasons is

convincing. First, the court noted that, because Smith involved a quo

warranto action, the burden of proof on the objecting party was

higher (clear and convincing) than it is for the objectors in this case

(preponderance of the evidence). No. 1–11–0033, slip op. at 7. While

this is undeniably true, we fail to see how it renders Smith’s residency

analysis irrelevant, as burden of proof does not impact what a party

must prove, but only how well the party must prove it. The appellate

court’s other basis for rejecting Smith was its determination that,

“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.” No. 1–11–0033, slip op. at

7. In other words, the appellate court concluded that Smith is not

binding because this court did not know what it was talking about

when it wrote it. Leaving to one side the propriety of such a

determination, two things quickly belie the appellate court’s

conclusion on this point: (1) the issue in Smith arose under the Illinois

Constitution’s residency provision, and consequently anything this

court said on this point was, by definition, in relation to residency; and

(2) as will be demonstrated below, this court has applied similar

principles in virtually every setting in which it has construed a legal

residency requirement.

All of that said, and putting aside the appellate court’s conclusion

that Smith is not binding in this case, the appellate court’s residency

analysis remains fundamentally flawed. This is because, even under

traditional principles of statutory analysis, the inevitable conclusion is

that the residency analysis conducted by the hearing officer, the

Board, and the circuit court was proper.

The issue in this case is whether the candidate met the statutory

requirements to run for and hold elected municipal office, as set forth

in section 3.1–10–5(a) of the Municipal Code (65 ILCS 5/3.1–10–5(a)

(2008)). That section states, in relevant part:

“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)

(2008).

For present purposes, the critical question is what does this section

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mean by “reside[ ] in”? This presents a question of statutory

interpretation, which is a question of law subject to de novo review

(In re Estate of Dierkes, 191 Ill. 2d 326, 330 (2000)) and the rules

governing our inquiry are familiar. Our primary goal when interpreting

the language of a statute is to ascertain and give effect to the intent of

the legislature. Devoney v. Retirement Board of the Policemen’s

Annuity & Benefit Fund, 199 Ill.2d 414, 424-25 (2002). The plain

language of a statute is the best indication of the legislature’s intent.

In re Christopher K., 217 Ill.2d 348, 364 (2005). Where the statutory

language is clear and unambiguous, we will enforce it as written and

will not read into it exceptions, conditions, or limitations that the

legislature did not express. In re Christopher K., 217 Ill.2d at 364. 5

As Smith demonstrates, this court very early on announced the

principles that would inform residency analysis in the context of

eligibility to hold public office. And since Smith, this court has

consistently applied similar residency principles in a variety of other

contexts, most especially in the context of voting. From these cases,

several well-settled principles emerge. First, to establish residency,

two elements are required: (1) physical presence, and (2) an intent to

remain in that place as a permanent home. Hughes v. Illinois Public

Aid Comm’n, 2 Ill. 2d 374, 380 (1954) (citing voting cases). Second,

once residency is established, the test is no longer physical presence

but rather abandonment. Indeed, once a person has established

residence, he or she can be physically absent from that residence for

months or even years without having abandoned it:

“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

5

For purposes of clarity, and like the legislature, we will use terms such

as “residency,” “resident,” and “reside” interchangeably. See Moran v.

Katsinas, 16 Ill. 2d 169, 174 (1959) (“where the same, or substantially the

same, words or phrases appear in different parts of the same statute they will

be given a generally accepted and consistent meaning” (emphasis added));

see also 10 ILCS 5/3–1, 3–2 (West 2008) (treating “resides in” and

“residence” synonymously).

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be followed by a resumption of the former residence, will not

be an abandonment.” Kreitz v. Behrensmeyer, 125 Ill. 141,

195 (1888).

Stated differently, a residence is not lost “by temporary removal with

the intention to return, or even with a conditional intention of

acquiring a new residence, but when one abandons his home and takes

up his residence in another county or election district.” Clark v.

Quick, 377 Ill. 424, 427 (1941). Third, both the establishment and the

abandonment of a residence is principally a question of intent. Park v.

Hood, 374 Ill. 36, 43 (1940). And while “[i]ntent is gathered primarily

from the acts of a person” (Stein v. County Board of School Trustees,

40 Ill. 2d 477, 480 (1968)), a voter is competent to testify as to his

intention, though such testimony is not necessarily conclusive (Coffey

v. Board of Election Commissioners, 375 Ill. 385, 387 (1940)).

Fourth, and finally, once a residence has been established, the

presumption is that it continues, and the burden of proof is on the

contesting party to show that it has been abandoned. In re Estate of

Moir, 207 Ill. 180, 186 (1904).

The question, then, is whether there is any indication that, in

enacting and amending section 3.1–10–5(a) of the Municipal Code,

the legislature intended residence to mean anything other than what it

has meant in this state for well over a century. There is no such

indication.

This court has held that “[w]ords used in the Municipal Code, as

in any other statute, are to be given their plain and commonly

understood meaning in the absence of an indication of legislative

intent to the contrary.” In re Petition to Annex Certain Territory to

Village of North Barrington, 144 Ill. 2d 353, 362 (1991). And where

a term has a settled legal meaning, this court will normally infer that

the legislature intended to incorporate that settled meaning. People v.

Smith, 236 Ill. 2d 162, 167 (2010). In Illinois, the legal meaning of

residence has been settled for well over 100 years, not only in the very

context that section 3.1–10–5(a) concerns (see Smith, 44 Ill. at 23-

25), but in virtually every other setting in which this court has

construed a legal residency requirement. See, e.g., Hughes v. Illinois

Public Aid Comm’n, 2 Ill. 2d 374, 380 (1954) (eligibility for state

public aid); People ex rel. Heydenrich v. Lyons, 374 Ill. 557, 566

(1940) (eligibility for local public aid); In re Petition of Mulford, 217

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Ill. 242, 249 (1905) (eligibility to serve as executor of decedent’s

estate); In re Estate of Moir, 207 Ill. 180, 186-87 (1904) (liability for

inheritance tax); Smith v. People ex rel. Frisbee, 44 Ill. 2d 16 (1867)

(eligibility to hold public office). There is absolutely no indication

anywhere in the Municipal Code that the legislature intended

residency in section 3.1–10–5(a) to mean anything other than this

well-settled meaning.

Second, this court has twice stated explicitly that related

provisions of the Election Code and of the Illinois Municipal Code are

to be considered in pari materia for purposes of statutory

construction. See Cinkus v. Village of Stickney Municipal Officers

Electoral Board, 228 Ill. 2d 200, 218 (2008); United Citizens of

Chicago and Illinois v. Coalition to Let the People Decide in 1989,

125 Ill. 2d 332, 338-39 (1988). The reason for this is that these two

Codes are “ ‘[g]overned by one spirit and a single policy.’ ” Id. at 339

(quoting People v. Maya, 105 Ill. 2d 281, 286-87 (1985)).

Consequently, this court must presume “ ‘that the legislature intended

the enactments to be consistent and harmonious.’ ” Id. Section 3–1 of

the Election Code provides, in relevant part, that “[e]very person (i)

who has resided in this State and in the election district 30 days next

preceding any election therein *** and who is a citizen of the United

States, of the age of 18 or more years is entitled to vote at such

election for all offices and on all propositions.” 10 ILCS 5/3–1 (West

2008). Section 3–2(a) of the Election Code, in turn, provides 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). Thus, under

the voter-eligibility provisions of the Election Code, “residency” and

“permanent abode” are synonymous (see Pope v. Board of Election

Commissioners, 370 Ill. 196, 200 (1938)), and both are governed by

the well-settled residency principles outlined above (see, e.g., id.).

This, then, raises the question: How can this court best construe the

residency requirement in section 3.1–10–5(a) of the Municipal Code

as to render it consistent and in harmony with the residency

requirement contained in section 3–1 of the Election Code? The

appellate court’s answer was to assign them inconsistent and

competing meanings. No. 1–11–0033, slip op. at 20-21. How, exactly,

this fosters consistency and harmony is unclear, and the appellate

court makes no effort to explain. The far better approach, we believe,

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and the one that vindicates our obligation to construe the provisions

consistently and harmoniously, is to presume that they have the same

meaning, that to “reside[ ] in” means the same thing in section

3.1–10–5(a) of the Municipal Code as it does in section 3–1 of the

Election Code.

Third, as helpful as the in pari materia doctrine is, it is not clear

that it is necessary in this case, as we are faced not so much with

related provisions of separate statutes as with a single statutory

provision. Consequently, the more relevant canon of construction may

be the one stating that “where the same, or substantially the same,

words or phrases appear in different parts of the same statute they will

be given a generally accepted and consistent meaning, where the

legislative intent is not clearly expressed to the contrary.” Moran v.

Katsinas, 16 Ill.2d 169, 174 (1959). Again, section 3.1–10–5(a) of the

Municipal Code states, in relevant part:

“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).

And again, to determine whether one is a “qualified elector of the

municipality,” article 3 of the Election Code must be consulted.

Effectively, then, the voter eligibility standards from article 3 of the

Election Code, including the residency standard, have been

incorporated into section 3.1–10–5(a) of the Municipal Code. Thus,

were we to say that residency means one thing in article 3 of the

Election Code and something altogether different in section

3.1–10–5(a) of the Municipal Code, we would be creating an

inconsistency not only between the two codes, but within section

3.1–10–5(a) itself–residency would mean one thing in the “qualified

elector” clause, and something else just three words later in the one-

year residency clause. There being no indication that the legislature

intended any such inconsistency, we will not read it into section

3.1–10–5(a). Instead, we will presume that the legislature intended

residency to mean the same thing each time it is referenced in section

3.1–10–5(a).

Of course, the appellate court did not see the statutory question

this way. But its reasons for departing from over 100 years of settled

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residency law are hardly compelling and deserve only brief attention.

First, as already noted, the appellate court asserts that this court “has

at least once noted the distinction between candidate and voter

residency requirements.” No. 1–11–0033, slip op. at 9. In support, the

appellate court cites to this court’s 1960 pronouncement that the

residency requirements set forth in the Municipal Code

“ ‘differentiate[d] between “electors” and those persons who may

qualify for municipal office.’ ” No. 1–11–0033, slip op. at 9 (quoting

People ex rel. Moran v. Teolis, 20 Ill. 2d 95, 104 (1960)). The

intended implication, of course, is that this court has a history of

defining residency differently as between candidates and electors.

What the appellate court fails to mention is that the cited portion of

Moran was referring solely to the statutory time periods in the

respective local residency requirements (i.e., 30 days for electors, one

year for candidates), a “distinction” that appears on the face of the

statute and says nothing about how, as opposed to how long,

residency must be established.

The appellate court then spends five pages examining section

3.1–10–5(d) of the Municipal Code (65 ILCS 5/3.1–10–5(d) (West

2008)), which is somewhat mysterious given that this section in no

way speaks to the definition of “residency.” Enacted in 2007, section

3.1–10–5(d) provides:

“If a person (i) is a resident of a municipality immediately

prior to the active duty military service of that person or that

person’s spouse, (ii) resides anywhere outside of the

municipality during that active duty military service, and (iii)

immediately upon completion of that active duty military

service is again a resident of the municipality, then the time

during which the person resides outside the municipality

during the active duty military service is deemed to be time

during which the person is a resident of the municipality for

purposes of determining the residency requirement under

subsection (a).” 65 ILCS 5/3.1–10–5(d) (West 2008).

Far from resolving the question of what it means to “reside in” or be

“a resident of” a municipality for purposes of section 3.1–10–5(a),

section 3.1–10–5(d) begs that very same question. By its plain terms,

section 3.1–10–5(d) speaks of someone who, though once a

“resident,” spent some amount of time “resid[ing]” somewhere else,

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and now is “again a resident.” The only way to construe this provision

in any meaningful way is to know what the Municipal Code means by

residency, something section 3.1–10–5(d) in no way speaks to. So

rather than providing the elusive answer, this provision leaves us right

back where we started: What does residency mean for purposes of

section 3.1–10–5 of the Municipal Code?

By way of final thought on this question, we wish to point out

that, while this court’s traditional definition of residence may be

plugged into the Municipal Code without creating any ambiguity or

confusion, the appellate court’s new and undefined standard promises

just the opposite. Although adopting a previously unheard-of test for

residency that would have applied to all future municipal elections, the

court made no attempt to explain what its standard means. The only

hint given by the appellate court is that, whatever its standard means,

this candidate did not satisfy it. The appellate court never explained

what it meant by “actually reside” or “actually live.” Indeed, as its

discussion of section 3.1–10–5(d) reflects, the entire appellate court

opinion can be read as nothing more than an extended exercise in

question begging, in which the appellate court sets forth the question

to be answered as what it means to “reside” (No. 1–11–0033, slip op.

at 11), and concludes that it means to have “actually resided” (No.

1–11–0033, slip op. at 21).

The difficulty of applying such a standard is immediately apparent.

For instance, consider a Chicago resident who owns a second home

in Florida and typically spends a month there every winter. Where is

that person “actually living” or “actually residing” during the month

when he or she is at the second home? Is such a person ineligible for

municipal office unless he or she sleeps at the Chicago house every

night for the year preceding the election? Is there a time limit with this

test? Would a week at the second home be short enough but two

months be too long? What about a Chicago resident whose job

requires him to spend extended periods of time out of the country

every year? Where is such a person “actually living” or “actually

residing” when out of the country? Assuming without deciding that

the appellate court was correct that the government service exception

does not apply to candidates, consider the example of Representatives

in Congress who often spend 4-5 days a week in Washington. If a

Representative from a Chicago congressional district owns a

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condominium in Washington, where is that representative “actually

living” or “actually residing” when Congress is in session? Under the

majority’s test, would the candidate have been ineligible to run for

mayor even during the time he was serving in Congress? The same

confusion would arise with respect to State Representatives or State

Senators who must spend considerable amounts of time in Springfield.

Applying the traditional test of residency to all of the above examples

leads to the commonsense conclusion that all would remain Chicago

residents even when away. Under the appellate court’s test,

considerable doubt would arise as to whether any of these people

could meet a residency test that requires one year of “actually living”

or “actually residing” in the municipality. Once the practical

implications of adopting a standard for residence that means “actually

lives” or “actually resides” are considered, one can readily appreciate

why such a standard has never been adopted and why the standard

used in Illinois has endured for well over a century.

So where does all of this leave us? It leaves us convinced that,

when determining whether a candidate for public office has “resided

in” the municipality at least one year next preceding the election or

appointment, the principles that govern are identical to those

embodied in Smith and consistently applied in the context of

determining whether a voter has “resided in” this state and in the

election district 30 days next preceding any election. Thus, in

assessing whether the candidate has established residency, the two

required elements are: (1) physical presence, and (2) an intent to

remain in that place as a permanent home. Once residency is

established, the test is no longer physical presence but rather

abandonment, the presumption is that residency continues, and the

burden of proof is on the contesting party to show that residency has

been abandoned. Both the establishment and abandonment of a

residence is largely a question of intent, and while intent is shown

primarily from a candidate’s acts, a candidate is absolutely competent

to testify as to his intention, though such testimony is not necessarily

conclusive.

With these governing principles in mind, we now consider the

Board’s ruling. The first thing that must be observed is that the Board

applied the very standard we prescribe above for determining

residency. Given this, and given that we have already determined that

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the Board’s factual findings were not against the manifest weight of

the evidence, we may immediately proceed to determining whether the

Board’s conclusion that the candidate met the residency requirement

was clearly erroneous. A decision is “clearly erroneous” only when the

reviewing court is left with a definite and firm conviction that a

mistake has been committed. Cook County Republican Party v.

Illinois State Board of Elections, 232 Ill. 2d 231, 244 (2009). Having

carefully reviewed the Board’s decision, we are not left with a definite

and firm conviction that a mistake has been committed.

Again, because it is uncontested that the candidate was a Chicago

resident at least until January 2, 2009, when he resigned his office as

Representative from the Fifth Congressional District of Illinois, the

Board correctly determined that the relevant question was not whether

the candidate had established residency in Chicago, but rather whether

the objectors had proved by a preponderance of the evidence that the

candidate had abandoned that residency at any time during the one-

year period before the February 22, 2011, election. Only when

abandonment is proven is residence lost. Stein v. County Board of

School Trustees, 40 Ill. 2d 477, 479 (1968). On the question of

abandonment, a party’s intention is controlling. Kreitz, 125 Ill. at 195.

Intention is determined both by a person’s declarations and his acts.

Id. A person’s declarations of intent are not conclusive and may be

disproved by his acts. Id. Once a residence has been established the

presumption is that it continues, and the burden of proof is on the

party claiming that it has been changed. Moir’s Estate, 207 Ill. at 186.

After finding the facts as summarized at the outset of this opinion,

the Board concluded that the objectors had failed to meet their burden

of showing that the candidate had abandoned his residence.

Specifically, the Board found that the preponderance of the evidence

did not show the candidate had formed an intention to terminate his

residence in Chicago or to establish his residence elsewhere. 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

Board concluded that the candidate’s absence from Chicago was

solely for the purpose of permitting him to discharge what he

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perceived to be a duty to serve the United States in the capacity of

Chief of Staff to the President of the United States. Moreover, the

Board found that the fact that the ending dates of the lease terms for

the Woodley House and the Hermitage House were identical, showed

that the candidate intended to return to the Hermitage House as soon

as his service to the President was over. None of these findings are

clearly erroneous.

This is a situation in which, not only did the candidate testify that

his intent was not to abandon his Chicago residence, his acts fully

support and confirm that intent. The candidate told several friends that

he intended to serve as Chief of Staff for no more than 18 months or

two years before returning to Chicago. The candidate has continued

to own and pay property taxes on the Chicago residence while only

renting in Washington, D.C. As set forth above, the ending dates for

the Woodley House lease and the Hermitage House lease were

identical and coincided with the end of the school year of the

candidate’s children. This supports an inference that the candidate

intended to move back into the Hermitage House when the Woodley

House lease ended. The candidate has continuously maintained an

Illinois driver’s license setting forth the Hermitage House as his

address and has never obtained a Washington, D.C., driver’s license.

The candidate has continued to register his car at the Hermitage

House address. The candidate registered to vote from the Hermitage

House address in 1999 and has continuously voted from that address

in every election through February 2010. Up and through 2010, the

candidate did his banking in Chicago and had the Hermitage House

address printed on his personal checks. The candidate left many

personal items in the Hermitage House, including his bed, two

televisions, a stereo system, a piano, and over 100 boxes of personal

possessions. Although the candidate paid income taxes to the

government of the District of Columbia, the candidate continued to

pay state income tax in Illinois.

The objectors claim that, once a person rents out a residence, he

or she has abandoned it as a matter of law. This is obviously incorrect,

as it is directly contrary to Smith. Indeed, Smith makes clear that

rental is merely one factor to consider in determining abandonment

(Smith, 44 Ill. at 24), and the terms of the rental and the circumstances

surrounding it must be considered. For instance, if an Illinois resident

-20-

accepts a permanent job with an out-of-state corporation, purchases

a house in a new state, moves his or her family into the new house,

moves all of his or her belongings out of the old house and into the

new one, and then rents out the old house on a one-year lease with a

right to renew, it clearly could be said that this was an abandonment

of the Illinois residency. By contrast, the Board did not believe that

this rental showed abandonment when the candidate took a position

as Chief of Staff to the President of the United States (an inherently

temporary position of national service), merely rented in Washington,

D.C., left many personal belongings in the Chicago residence, and

ensured that the lease term for the Chicago house ended at the same

time as the lease on the Washington, D.C., house. The Board

determined that, in this situation, the rental did not show abandonment

of the residence. This conclusion was well supported by the evidence

and was not clearly erroneous.

Given the record before us, it is simply not possible to find clearly

erroneous the Board’s determination that the objectors failed to prove

that the candidate had abandoned his Chicago residence. We therefore

reverse the decision of the appellate court and affirm the decision of

the circuit court, which confirmed the Board’s decision.

So there will be no mistake, let us be entirely clear. This court’s

decision is based on the following and only on the following: (1) what

it means to be a resident for election purposes was clearly established

long ago, and Illinois law has been consistent on the matter since at

least the 19th Century; (2) the novel standard adopted by the appellate

court majority is without any foundation in Illinois law; (3) the

Board’s factual findings were not against the manifest weight of the

evidence; and (4) the Board’s decision was not clearly erroneous.

Appellate court judgment reversed;

circuit court judgment affirmed.

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JUSTICES FREEMAN and BURKE, specially concurring:

We join in the majority’s decision to reverse the judgment of the

appellate court. We do not, however, agree with the majority’s

reasoning.

The result in this case is in no way as clear-cut as the majority

makes it out to be. The majority states that, in Illinois, “the legal

meaning of residence has been settled for well over 100 years, not

only in the very context that section 3.1–10–5(a) concerns (see Smith,

44 Ill. at 23-25), but in virtually every other setting in which this court

has construed a legal residency requirement.” Slip op. at 13-14. This

is simply not true.

As this court has noted, the legal term “residence” does not “have

a fixed and constant meaning” Fagiano v. Police Board, 98 Ill. 2d

277, 282 (1983)); see also Restatement of the Law, Second, Conflict

of Laws §11, cmt. k, at 45 (1971) (“Residence is an ambiguous word

whose meaning in a legal phrase must be determined in each case”);

W. Reese and R. Green, That Elusive Word, ‘Residence,’ 6 Vand. L.

Rev. 561, 580 (1953) (residence is “one of the most nebulous terms

in the legal dictionary”); Willenbrock v. Rogers, 255 F.2d 236, 237

(1958) (“The words ‘resident’ and ‘residence’ have no precise legal

meaning although they are favorite words of legislators.”).

The majority bases its decision entirely on Smith v. People ex rel.

Frisbie, 44 Ill. 16 (1867). As the appellate court correctly noted, the

outcome in that decision turned solely on intent, a principle that is

consistent with the legal concept of domicile. See Hayes v. Hayes, 74

Ill. 312 (1874). Unfortunately, Smith was not this court’s last

pronouncement on the issue. Later decisions, namely Pope v. Board

of Election Commissioners, 370 Ill. 196 (1938), Park v. Hood, 374

Ill. 36 (1940), and Clark v. Quick, 377 Ill. 424 (1941), each define

residence in terms of domicile plus a permanent abode. In other

words, under these cases, intent alone is not enough to establish

residency.

Suffice it to say, therefore, that this court has not always spoken

clearly on what is meant by residency, and the majority should

acknowledge this fact. This is why both sides in this dispute can

contend that their respective positions are supported by decades of

precedent. Indeed, contrary to the majority’s assertions, the only thing

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that is well established in this case is the confusion that has existed on

this subject. The majority today now makes clear that residency for all

purposes is the equivalent of domicile. The majority, therefore, should

overrule those portions of Pope, Park, and Clark which hold to the

contrary.

It is for this reason that the tone taken by the majority today is

unfortunate. Because our own case law was, until today, unclear, it is

unfair of the majority to state that the appellate court majority

“toss[ed] out 150 years of settled residency law” (slip op. at 10),

adopted a “previously unheard-of test for residency” (slip op. 17), or

was engaged in a “mysterious” analysis (slip op. at 16). In order to

properly address the parties’ arguments, the appellate court had to

reconcile this court’s conflicting pronouncements on the question of

residency. That court did the best it could without the benefit of a

supreme court opinion which clarified the standards. By refusing to

acknowledge the role our own case law has played in creating the

dispute before us, the majority unwittingly adds credence to the

inflammatory statements contained in the dissenting opinion below.

The dissenting justice below accused the appellate court majority

of engaging in a “pure flight of fancy” (No. 1–11–0033, slip op. at 35,

Lampkin, J., dissenting)), of “conjur[ing]” its result “out of thin air”

(id. at 40), and of having a “careless disregard for the law” (id. at 41).

The dissenting justice also stated that the result was a “figment of the

majority’s imagination”(id. at 39), based on the “whims of two

judges” (id. at 42). In other words, the dissenting justice accused the

majority of basing its decision on something other than the law.

When the appellate court’s decision was announced, these

accusations were repeatedly emphasized in the media (see, e.g.,

Judicial Arrogance, Chicago Tribune, Jan. 25, 2011, at 14; Rahm

Ruling a Disservice to Voters, Chicago Sun-Times, Jan. 25, 2011, at

21), thereby fueling the perception that the appellate court’s decision

was, in fact, based on extrajudicial considerations. The tone taken by

the majority today, and the refusal to acknowledge conflicting case

law, unfairly perpetuates that notion.

Spirited debate plays an essential role in legal discourse. But the

majority opinion here and the appellate dissent cross the line.

Inflammatory accusations serve only to damage the integrity of the

judiciary and lessen the trust which the public places in judicial

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opinions. The present case, one of obvious public interest, raises

difficult questions regarding the legal concept of residency about

which reasonable minds may differ. Indeed, as noted above, the

meaning of the term “residency” has puzzled attorneys and judges

since the term first appeared in the statute books. The majority and

dissenting appellate court opinions illustrate the confusion that has

long existed on this issue, which is the very reason for the difficulty in

discerning what the General Assembly meant when it used the words

“has resided in” in section 3.1–10–5(a) of the Illinois Municipal Code

(65 ILCS 5/3.1–10–5(a) (West 2008)). There is no reason for the

majority here to cast aspersions on the appellate court’s motivations.

Former Illinois Supreme Court Justice Ben Miller, one of the most

esteemed jurists to have served on this court, stated it well:

“Judges often disagree about what result the law requires in a

particular case. The existence of these disagreements, and the

ability of our legal system to thrive on them, are virtues of the

judicial process and of our system of government. The terms

of the debate, however, must be framed by civility and respect,

and not by suspicion and untruths. When rancor eclipses

reason, the quality of the debate is diminished, the bonds of

collegiality are strained, and the judicial process is demeaned.

We cannot prescribe civility to members of the bar when our

own opinions are disfigured by comments as offensive as those

we have admonished lawyers for making. *** We should

receive no less from our colleagues than we expect from

lawyers who appear in our courts.” People v. Bull, 185 Ill. 2d

179, 222 (1998).

Finally, it should be noted that today’s decision will raise questions

beyond the facts of this case. Because the court holds that residency

has one settled meaning, and that meaning rests on a person’s intent,

today’s decision will have implications for residency requirements for

in-state tuition, residency requirements for municipal employees such

as police officers and firefighters, residency requirements for school

districts and other similar situations. This court should be prepared to

address those issues as firmly and expeditiously as we have done

today.

Because of the breadth of today’s decision, we do not join the

majority’s holding that residency is the equivalent of domicile and that

-24-

intent, therefore determines residency, even in the absence of any

physical presence. Rather, we would answer the narrow question that

was actually raised by the objectors in this case: Does a person lose

his permanent abode if the abode is rented during the relevant

residency period? To that question we answer “no.” Smith’s rule of

intent was called into question by Park’s holding requiring a

permanent abode in addition to domicile to maintain residency. Thus,

despite the similarity in facts between this case and Smith, it remains

an open question, in the wake of Park, as to whether a permanent

abode is lost by renting it out. In the absence of explicit guidance from

the legislature on this question, and because a candidate’s access to

the ballot is favored by law (see, e.g., McGuire v. Nogaj, 146 Ill. App.

3d 280, 282 (1986) (access to the ballot “is not to be prohibited or

curtailed except by plain provisions of the law”)), we join in the

judgment of the majority.

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