Neely v. Board of Election Commisioners for The City of Chicago

SIXTH DIVISION

February 16, 2007

No. 1-07-0309

DAVID E. NEELY, the Candidate for ) Appeal from the

Alderman of the 20th Ward in the City ) Circuit Court of

of Chicago, ) Cook County

)

Petitioner-Appellant, )

)

v. )

)

THE BOARD OF ELECTION COMMISSIONERS FOR )

THE CITY OF CHICAGO; LANGDON NEAL and )

RICHARD COWEN, as Members of the Board )

of Election Commissioners for the City )

of Chicago; IRIS L. HEARD and JERMAINE )

SHEPPARD, as Objectors. ) Honorable

) Susan Fox Gillis,

Respondents-Appellees. ) Judge Presiding

JUSTICE McNULTY delivered the opinion of the court:

David Neely, Ph. D., attorney at law, filed nomination

papers by which he sought election to the office of alderman from

Chicago's 20th Ward in the February 2007 election. The Chicago

Board of Election Commissioners sustained an objection to the

nomination papers based on Neely's vote in the 8th Ward less than

a year before the 2007 election. The trial court, on

administrative review, upheld the Board's decision. Neely now

appeals.

We too affirm the Board's decision, finding that Neely's

deliberate assertion of residence in the 8th Ward in March 2006

proves that he has not resided in the 20th Ward, for purposes of

serving as a representative of that ward, for the requisite year

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before the February 2007 election.

BACKGROUND

On March 21, 2006, Neely signed an application for a ballot

he used when he voted in Chicago's 8th Ward that day. The

application listed his address as 8401 South Luella Avenue, which

lies in the 8th Ward. Above the signature the application said,

"I hereby certify that I am registered from the address above and

am qualified to vote."

In September 2006 Neely changed his voting address to 5619

South Wabash, which lies in the 20th Ward. In December 2006

Neely filed a petition to have his name included on the ballot

for election as an alderman of the 20th Ward in the general

election of February 27, 2007.

Jermaine Sheppard and Iris Heard objected that Neely would

not have resided in the ward for the required one year prior to

the election. At a hearing on the motion, objectors relied

mostly on the application for ballot Neely signed in March 2006.

Neely presented utility bills and insurance bills showing him as

the addressee for bills for 5619 South Wabash since 1996.

Appraisals of the property, done in 2004 and April 2006, listed

Neely as owner and occupant.

A financial consultant who worked with Neely since 2004

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testified that he went to the property in 2005 and 2006 and he

found "that the residency of David E. Neely was continuous." The

consultant added that he visited the property more than 20 times

since March 2006, and he could "personally attest" that Neely

lived at the property. The consultant explained that he knew

this from "coming in the morning when [Neely] wakes up and he

comes to the door."

Neely testified that he lived at 5619 South Wabash since

1996. He always used his parents' address on Luella as his

permanent mailing address and he maintained his voting

registration at that address although he did not live there.

The hearing examiner found that Neely's evidence proved he

owned the Wabash home, but he did not prove residence. The

officer discounted the consultant's testimony because of the

consultant's financial interest in the "ongoing business

relationship for at least nine years." Thus, the examiner held

that Neely did not effectively refute the objector's evidence

based on the March 2006 ballot application.

Neely asked the Board to review the examiner's decision.

Before the hearing Neely sought to introduce affidavits signed by

eight persons who lived in the 20th Ward. In the affidavits the

affiants swore that Neely had lived in the Wabash home for more

than a year. At the hearing Neely expanded on his reasons for

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using his mother's address as his voting address:

"I have been practicing law for 25 years. I handle

criminal cases and civil rights cases. I handle high

profile cases. I have always wanted to maintain some

sense of privacy. And by voting at my mother's

address, I did not disclose my actual address. ***

***

*** I have maintained a law practice, a home

business, at 5619 South Wabash for over ten years. I

live there. I raise my dogs there. I raise my family

there."

Members of the Board recognized that the examiner made some

factual errors, particularly in finding that the consultant had a

business relationship of nine years with Neely. The Board never

explicitly ruled on Neely's motion to introduce the eight

affidavits from neighbors into the record.

One member said he found all of Neely's evidence credible,

but the Board needed to rely on the voting registration from

March 2006. He said:

"[W]hat would happen if we decided that a person can be

registered anywhere they want to be but they can

establish their own particular residency at another

location for purposes of running for the ballot? ***

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* * *

It would have to be an extraordinary set of

circumstances for you to overcome that inconsistency

between where you say you reside and where you have

registered with the Board."

Another Board member said he found Neely and his financial

consultant incredible, and the weight of the evidence supported

the examiner's central findings. But that member also said, "I

do not believe that we should ever have a system where somebody

says I live at this address in this ward and I am going to vote

for however long I can from an address in another ward." The

Board adopted the hearing examiner's findings and

recommendations, holding that any factual errors in the findings

had no material effect on the result. The trial court affirmed

the Board on administrative review.

ANALYSIS

We review the Board's decision rather than the circuit

court's judgment. Thigpen v. Retirement Board of Firemen's

Annuity & Benefit Fund, 317 Ill. App. 3d 1010, 1017 (2000). We

will disturb the board's findings of fact only if they contravene

the manifest weight of the evidence. If the record sufficiently

supports the findings of fact, we then apply the law to those

facts. Oregon Community Unit School District No. 220 v. Property

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Tax Appeal Board, 285 Ill. App. 3d 170, 176 (1996). While we

give substantial weight to the agency's interpretation of law, we

must independently analyze the law in applying it to the facts.

Oregon, 285 Ill. App. 3d at 175-76.

The Board adopted the hearing examiner's findings and

decision. The findings include errors that the Board recognized

but found immaterial. When we find such errors in factual

findings, we must "first determine whether the factual findings

independent of the error provide a sufficient basis for the

agency's decision. [Citations.] If the facts provide such a

basis, we will affirm the decision. But if the decision lacks

adequate support without the manifestly erroneous finding, we

must reverse." Johnson v. Human Rights Comm'n, 318 Ill. App. 3d

582, 587 (2000).

The Board relied primarily on one factual finding, and Neely

does not dispute that finding. In March 2006, when Neely signed

an application for an 8th Ward ballot, he certified that he was

"qualified to vote" for the 8th Ward candidates on the ballot.

The Election Code provides:

"No person shall be entitled to be registered in

and from any precinct unless such person shall by the

date of the election next following have resided in the

State and within the precinct 30 days ***." 10 ILCS

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5/5-2 (West 2004).

Thus, Neely, in March 2006, certified that he had resided

within the precinct in the 8th Ward for at least 30 days prior to

the March election. The Revised Cities and Villages Act of 1941

establishes that "No member may be elected or appointed to the

city council after the effective date of this amendatory Act of

the 93rd General Assembly unless he or she has resided in the

ward he or she seeks to represent at least one year next

preceding the date of the election or appointment." 65 ILCS

20/21-14 (West 2004).

Neely claims that his evidence of actual residence in the

20th Ward rebuts the certification he made in March 2006, and

many voters register with an address other than the address of

their actual residences. We have found no Illinois case, and the

parties have cited us none, in which a candidate sought to

renounce a public record he created of his residence as part of

an effort to establish eligibility for public office. However,

we find some guidance in cases from other jurisdictions.

In McClelland v. Sharp, 430 S.W.2d 518 (Tex. Civ. App.

1968), the petitioner sought a writ of mandamus directing the

respondent to put his name on the ballot as a candidate for state

representative from the 24th legislative district for an election

to take place on November 5, 1968. State law required residence

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in the district for one year as a qualification for the office.

Twice within the year preceding the election the petitioner voted

in the 22nd district, and he also made himself a candidate for an

office in the 22nd district in a special election held on

November 11, 1967.

The petitioner sought to introduce evidence that he actually

moved into the 24th district more than a year before the 1968

election, but shortly after he filed for candidacy for an office

in the 22nd district. He did not formally withdraw his candidacy

for that office only because he knew he had little chance of

winning. He saw no problem with continuing to vote in the 22nd

district because he continued to maintain a part-time residence

in that district after he moved his primary home to the 24th

district.

The court denied the writ, holding that the respondent

properly refused to put the petitioner's name on the ballot for

the 24th district. The court explained:

"[B]y voting in that special election [in the 22nd

district, in November 1967], the relator represented

himself to be a resident of that district on that date.

His conduct, which implies that representation, is a

matter of public record. The same can be said of his

votes in the November 18, 1967, city bond election ***.

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* * *

*** [W]here, as here, the facts reflected by

public records establish a disqualification of the

proposed candidate, the respondents were neither

required to ignore those facts nor permitted to go

outside the record inquiring of other facts in

exercising their implied authority. Particularly is

this true where the public records showing the

disqualification of the relator are based on his own

actual or implied representations as to his residence

at the time in question." McClelland, 430 S.W.2d at

520-22.

Similarly, in People v. Platt, 117 N.Y. 159, 22 N.E. 937

(1889), the defendant accepted appointment to an office as

commissioner, when the office required residence in New York

City. The plaintiff sued to have the defendant removed from

office on grounds that he did not reside in the city. The

defendant presented evidence that he maintained residences in the

city and outside the city, in Tioga County. Platt, 117 N.Y. at

165, 22 N.E. at 937. He continued to vote in Tioga County even

after his appointment as a commissioner. The court explained:

"His right to vote was challenged on the ground that he

was not a resident of the village, and he took the

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general oath and voted under the challenge. He thus

declared, under oath, that he had resided in the county

of Tioga for four months, and in the village for thirty

days, prior to that election. ***

***

The defendant offers his vote in Tioga county

because he is a resident of that county, and of the

election district where it is offered; it is received

under the provision of law, that a person so situated

shall be entitled to the privilege. And his absence

from that county, however long, so that it is

temporary, and not in abandonment of his home, will not

deprive him of his residence, though his absence extend

through a series of years. Nor can his actual presence

during that time in another district entitle him to the

enjoyment of another franchise for which only a

resident of that district is, by law, qualified."

Platt, 117 N.Y. at 166-68, 22 N.E. at 938.

McClelland and Platt comport with the reasoning of other

courts concerning the significance of voting. The Virginia

Supreme Court said:

"[P]articular significance should be attached to

the repeated exercise of the right to vote, because

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this right depends upon citizenship and domicile ***.

*** [S]uch act is a distinct, unequivocal, and public

assertion by the voter of his legal domicile."

Cooper's Administrator v. Commonwealth, 121 Va. 338,

349, 93 S.E. 680, 683 (1917).

And Wisconsin's Supreme Court held:

"[W]e cannot conceive of any circumstance of more

controlling weight, as bearing upon the question as to

what state a man has taken up a permanent residence in,

than the act of voting. This act is so important and

deliberate that it should have decisive preponderance

upon the question whether a [litigant] believes that he

is a resident of a particular state. For the defendant

must be presumed to know that he had no right to vote

in Iowa unless he was a resident of that state. He

exercised the elective franchise there because he

considered himself at the time as a resident of that

state, and as having the right to vote where he did."

Wolf v. McGavock, 23 Wis. 516, 518-19 (1868).

Neely protests that the Board's decision here engrafts onto

the Election Code a requirement that the candidate have

registered as a voter in the ward from which he seeks election at

least one year prior to the election. Neely misinterprets the

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Board's ruling. The Board did not require any voting

registration at all. But because Neely had registered, the Board

looked to the public record of his registration, and particularly

to the exercise of the power to vote in the 8th Ward in March

2006, as a deliberate assertion of residence in that ward. Neely

did not present any evidence that the vote resulted from

inadvertent error or misunderstanding. See Dixon v. Hughes, 587

So. 2d 679 (La. 1991); In re Jackson, 14 S.W.3d 843 (Tex. App.

2000). He explained that he intentionally misrepresented his

residence to the Board in 2006 to keep his actual residence

secret. We agree with the Board that this explanation cannot

justify inclusion of his name on a ballot for office representing

the 20th Ward.

We agree with the Board that the affidavits from eight

neighbors have no bearing on the case, and the hearing examiner

included only immaterial errors in his recitation of facts.

Because of Neely's deliberate assertion of residency in the 8th

Ward on March 21, 2006, the Board properly found Neely

unqualified for election from the 20th Ward for the February 2007

election. Accordingly, we affirm the Board's decision.

Affirmed.

FITZGERALD SMITH, P.J., and O'MALLEY, J., concur.

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