Rahm Emanuel Appellate Court Ruling
Rahm Emanuel Appellate Court Ruling
No. 1-11-0033
OPINION
the objections and ruled that the candidate was entitled to have
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
owns. The candidate lived with his family in that home from 1998
the Hermitage house. From June 2009 until October 1, 2010, the
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Woodley House) that was leased for the term spanning June 1, 2009,
through June 30, 2011. The family received their mail at the
did, however, pay income tax in 2009 and 2010 to both Washington,
Chicago from October 1, 2010, through June 30, 2011. He has lived
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"resided in" Chicago for the one year preceding the February 22,
facie true and correct and will not be overturned on appeal unless
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they are against the manifest weight of the evidence. Cinkus, 228
provision stating that "no elector *** shall be deemed to have lost
business of the United States" (10 ILCS 5/3-2 (West 2008)). Each
assuming the Board applied the correct standard (see Du Page County
498 n.4, 831 N.E.2d 30 (2005)), a mixed question of law and fact
legal questions de novo and any mixed questions under the clearly
erroneous standard.
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municipality for one year, the Board applied the test for residency
that has been used for voter qualification under the Election Code.
355 Ill. App. 3d 842, 847-48, 823 N.E.2d 1144 (2005) (stating only
of Cook County, 267 Ill. App. 3d 972, 976, 642 N.E.2d 843 (1994)
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Despite the facts that the officeholder had left Illinois with his
family and had rented out his Illinois home, the supreme court
312, 314 (1874). Since Smith was decided, however, our supreme
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alone, without any permanent abode, the supreme court has since
abandoned Smith’s approach. For this reason, along with the above-
bases this argument, in part, upon the assertion that the Election
826 N.E.2d 517 (2005). We, therefore, do not view the doctrine of
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The supreme court has not directly addressed the notion that
requirement for voters, but the court has at least once noted the
and have resided in the area at least one year preceding the
1957, ch. 24, par. 9-87). The supreme court answered that the
Quick, 377 Ill. 424, 426-27, 36 N.E.2d 563 (1941) ("residence for
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" 'a real and not imaginary abode, occupied as his home or
N.E.2d 588 (1940) ("[a] residence, for voting purposes, is not lost
added)); Park v. Hood, 374 Ill. 36, 43, 27 N.E.2d 838 (1940) ("[a]
Anderson v. Pifer, 315 Ill. 164, 146 N.E. 171 (1924) ("Whether a
some indications from the supreme court that the requirements might
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potential candidate have "resided in" the municipality for one year
synonymous with "live, dwell, sojourn, lodge, stay, put (up), [and]
stop," but it "may be the preferred term for expressing the idea
large part of the statutory one-year period. On the other hand, our
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invoke with its use of the phrase "reside in" in the Municipal
Code.
addition to the statutory language, the reason for the law, the
law. People v. Donoho, 204 Ill. 2d 159, 171-72, 788 N.E.2d 707
that they have "resided" within the area for 12 months (or one
State for two years preceding their election. See Ill. Const.
1818, art. II, §2, §6; Schedule §13. Similar "reside in"
in its statutes, since 1818. See e.g., Ill. Const. 1848, art. III,
§3, §4; 1861 Ill. Laws 267; 1917 Ill. Laws 258.
America Publications, Inc., 174 Ill.2d 77, 95, 672 N.E.2d 1207
(1996)), the decision in People v. Ballhorn, 100 Ill. App. 571, 573
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candidates "reside in" the area they would represent "can only be
may have obviated much of their necessity, the legislature has not
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sections 3-1 and 3-2 of the Election Code. See 10 ILCS 5/3-1, 3-2
"§ 3-1. Every person *** who has resided in this State
and
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new residence, but when one abandons his home and takes up his
business of the United States and therefore did not lose the voter
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has "resided in" the City of Chicago for at least one year next
municipal office. The fact that the two requirements are stated
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(West 2008).
For the point that the Municipal Code’s "reside in" requirement is
the voter residency requirements set forth in sections 3-1 and 3-2
municipality." This usage of the word "reside" does not denote the
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then it logically follows that the person lost his or her resident
of absence.
Industrial Comm’n, 183 Ill. 2d 499, 513, 702 N.E.2d 545 (1998).
Under this rule, the fact that the legislature used the word
in subsection (a).
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serviceperson returns.
Municipal Code (see 95th Gen. Assem., Senate Bill 253, 2007 Sess.),
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individual was in Iraq and *** he came back, wanted to run for
that same district, the same ward, and run as if they had been
similar terms:
and run for office, that he would not lose his eligibility
of Senator Luechtefeld).
not only the Election Code’s voter residency standard, but also
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must have actually resided within the municipality for one year
provides as follows:
disagree, however, with his position that the exception saves his
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and they must have "resided in" the municipality for one year
Election Code.
section 3-2 in the rule that a court, when possible, should read a
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Employment Security, 393 Ill. App. 3d 791, 803, 914 N.E.2d 520
during the pendency of their military service even when they reside
candidates, then its statement that a person will not lose his or
compels the conclusion that section 3-2 of the Election Code was
candidates.
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public business of the United States." Ill. Const. 1818, art. II,
three times: once for state representatives (Ill. Const. 1848, art.
III, §3), once for state senators (Ill. Const. 1848, art. III, §4),
and once for voters (Ill. Const. 1848, art. VI, §5). The 1848
Election Code (see 1959 Ill. Laws 2168) and was not included in our
has for over 150 years recognized a distinction between voters and
candidates and has retained the exception only for voters. That
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"resided in" Chicago for the year preceding the election in which
Supreme Court Rule 366(a)(5) (Ill. Sup. Ct. R. 366(a)(5) (eff. Feb.
necessary, removed) from the ballot for the February 22, 2011,
Reversed.
Chicago and has resided in Chicago at least one year next preceding
the election.
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The Board’s ruling–that the candidate in 2009 and 2010 did not
738), and the majority acknowledges that the Board’s fact findings
burden of proof is on the person who claims that there has been a
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been the leading case defining “residence” since its issuance 122
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fact and intention, must have abandoned the former residence and
88-89; see also Tuthill v. Rendleman, 387 Ill. 321, 342-43 (1944).
instant case compels the conclusion that the candidate did not
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lease their Chicago home, they heeded the advice of their friend
and real estate consultant to lease the home during their absence
D.C., for the limited time frame and then return to his home in
D.C., but later rented a home when his family joined him during the
summer of 2009. The lease terms of both his Chicago residence and
the Washington, D.C., home coincided with the school year of the
Washington, D.C., the candidate’s wife and her friends filled 100
boxes with belongings that were then left in a locked storage area
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cards.
the home and to schedule three or four occasions for the piano of
and the Board found that the weight of this evidence established
Since the majority could not meddle with the Board’s fact
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its new standard, the majority first attempts to clear the relevant
Walsh, and Delk, three of the most recent appellate court decisions
this opinion, Justice Hoffman, must have agreed with the analysis
position. Id.
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Walsh and Delk are First District cases. Although the principle of
election cases such as Clark and Kreitz. Dillavou, 260 Ill. App.
the relevant issue the majority should have addressed here, i.e.,
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have been a resident of Illinois for five years next preceding his
left to live and work in Tennessee for several months and then
25.
sell his Illinois law books, saying that he would probably return
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24. Moreover, the appellant only rented his residence when he left
the facts and law (Smith, 44 Ill. at 22-23), in its opinion, the
Smith court spoke of residence and never used the term domicile
the majority’s assertion that the Smith analysis was based solely
Ill. at 43.
The majority imagines that the supreme court did not know the
that Pope signifies that the court “has since abandoned” that
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removal of himself and his family into another State with the
2d at 218-19.
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precedent shows that courts have construed the “has resided in”
consistently with the “has resided in” phrase used in section 3-1
of the Election Code. See Smith, 44 Ill. 16; Delk, 112 Ill. App.
meanings for the terms “residence” and “has resided in” as used in
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is a person who “has resided in” Illinois and the election district
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surely would have chosen to use the more innocuous word live rather
than the verb reside and the noun residence, which are charged with
legal implications.
who had voted for the new officers were not qualified electors
in the area for more than 30 days where the statute required a
however, was not based upon the nature of their residency but,
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‘elector’ as one who has resided in the State for one year, in the
county for 90 days and in the area or precinct for 30 days” whereas
majority’s imagination.
How many days may a person stay away from his home before the
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their own beds before they violated this new arbitrary standard,
absent or are there other relevant factors under the new standard?
Apparently, only the majority knows but, for some reason, fails to
State from over 100 years of precedent. Clearly, the majority must
Board’s ruling that the candidate did not intend to abandon his
of thin air.
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standard, when the ink of its creation has barely dried on the
for the office of mayor in a major city. One can hardly imagine
result.
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Supreme Court Rule 316, which would permit review of the majority’s
the writing of this dissent, there is less than one month before
the election and even less time for absentee ballots to be mailed
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