Maksym v. Board of Election Commissioners

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.” Supra at 320. 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 (Second) of 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”); Willis L.M. Reese & Robert S. 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 (3d Cir. 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 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” (supra at 316), adopted a “previously unheard-of test for residency” (supra at 324), or was engaged in a “mysterious” analysis (supra at 323). 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” (406 Ill. App. 3d at 28 (Lampkin, J., dissenting)), of “conjur[ing]” its result “out of thin air” (id. at 31), and of having a “careless disregard for the law” (id. at 31). The dissenting justice also stated that the result was a “figment of the majority’s imagination” (id. at 31), based on the “whims of two judges” (id. at 32). 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 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. [Citation.] 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) (Miller, J., specially concurring, joined by Freeman, C.J., and McMorrow, J.).

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 instate 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 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.