Good question. Greg Hinz makes an interesting point:
But the matter -- probably quickly -- is now headed to the Illinois Supreme Court. There, perhaps the swing vote may be held by Justice Anne Burke, wife of Chicago Alderman Ed Burke (14th), who has endorsed another candidate: Gery Chico.
That would suggest a political decision (what!? You mean that the Illinois Supreme Court would do such a thing?)
But here's something from the Appellate Court decision that strongly suggests that the high court already has established a precedent that it might be tough to overthrow:
In its decision, to determine whether the candidate met the
Municipal Code's requirement that he have "resided in" the
municipality for one year, the Board applied the test for residency
that has been used for voter qualification under the Election Code.
This approach is supported by several appellate court decisions
that, without discussion, equate residency requirements imposed on
voters with requirements that a candidate "resided in" his or her
political unit. See e.g., People ex rel. Madigan v. Baumgartner,
355 Ill. App. 3d 842, 847-48, 823 N.E.2d 1144 (2005) (stating only
that it would treat the terms as synonymous "because eligibility to
run for office is closely linked to the ability to vote within a
particular jurisdiction"); Walsh v. County Officers Electoral Board
of Cook County, 267 Ill. App. 3d 972, 976, 642 N.E.2d 843 (1994)
(assuming implicitly that the terms were synonymous); Delk v. Board
of Election Commissioners of the City of Chicago, 112 Ill. App. 3d
735, 738, 445 N.E.2d 1232 (1983).
Neither the Board nor the parties have, however, referred us
to any supreme court opinion ratifying, adopting, or directly
addressing this approach. The only cited supreme court case to
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approach the issue is Smith v. People ex rel. Frisbie, 44 Ill. 16
(1867), a quo warranto action decided under the presumption that
the candidate had a right to the office to which he had been
appointed and in which the court required the objectors to
establish the candidate's disqualification by "clear and
satisfactory" proof. See Smith, 44 Ill. at 24-25. We know of no
similar presumption applicable to this case, and the objectors here
bore the less stringent burden to prove the candidate's
disqualification by a preponderance of the evidence. See Board of
Election Commissioners of the City of Chicago, Rules of Procedure
10 ("[T]he objector must bear the burden of proving by operation of
law and by a preponderance of the *** evidence *** that the
objections are true.").
In addition, although the supreme court's discussion in Smith
was based nominally on principles of "residence," it appears from
its analysis that it actually applied concepts of domicile.
Despite the facts that the officeholder had left Illinois with his
family and had rented out his Illinois home, the supreme court
concluded, based solely on the officeholder's intent to return,
that he retained his "residence" in Illinois. See Smith, 44 Ill.
at 24-25. This intent-based analysis is the defining
characteristic of the principle of domicile, a legal status that,
once acquired, can be "retained, animo solo, by the mere intention
not to change it and adopt another." Hayes v. Hayes, 74 Ill. 2d
312, 314 (1874). Since Smith was decided, however, our supreme
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8
court has explained unequivocally that "it is elemental that
domicile and residence are not synonymous." Pope v. Board of
Election Commissioners, 370 Ill. 196, 202, 18 N.E.2d 214 (1938).
As the supreme court further explained in Pope, the legal concept
of "residence" requires a permanent abode. Pope, 370 Ill. at 200.
Accordingly, to the extent that Smith might establish that a voter
or candidate could meet a residency requirement through intent
alone, without any permanent abode, the supreme court has since
abandoned Smith's approach. For this reason, along with the abovediscussed
reasons, we do not view Smith as controlling this case.
Here is the majority's conclusion:
We are not the first to draw the distinction between voters
and candidates for purposes of the type of exception contained in
section 3-2 of the Election Code. The exception traces to
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24
Illinois' founding charter, which imposed a residency requirement
on state representatives but excepted those who were "absent on the
public business of the United States." Ill. Const. 1818, art. II,
§3. Illinois' next constitution, in 1848, stated the exception
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
Constitution thus separately delineated "business of the United
States" exceptions for candidates and for voters. Illinois' next
constitution, in 1870, retained the "business of the United States"
exception as it related to voters (see Ill. Const. 1870, art. VII,
§4), yet conspicuously omitted the exception as it related to
candidates. (The voter exception was later incorporated into the
Election Code (see 1959 Ill. Laws 2168) and was not included in our
current constitution.) This history tells us that, for purposes of
the "business of the United States" residency exception, this State
has for over 150 years recognized a distinction between voters and
candidates and has retained the exception only for voters. That
revelation, combined with our interpretation of the language of
section 3-2 and its interrelation with subsection 3.1-10-5(d) of
the Municipal Code, convinces us that section 3-2's "business of
the United States" exception applies only to voters, not to
candidates. Accordingly, it cannot avail the candidate here.
For the foregoing reasons, we conclude that the candidate
neither meets the Municipal Code's requirement that he have
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25
"resided in" Chicago for the year preceding the election in which
he seeks to participate nor falls within any exception to the
requirement.
Be sure to read the dissenting view at the same site.
Filed under: Chicago politics
After both the American Princess and I have read the opinions, I have to concur with the parts she quoted that not only the dissent, but the majority phrased its opinion in such a way that the Illinois Supreme Court cannot avoid reviewing it.
Your statement that "strongly suggests that the high court already has established a precedent that it might be tough to overthrow" basically has no support in the majority opinion. The Illinois Supreme Court will probably have the last word on the effect of the 1938 case on this one.
Based on what was just announced as the ruling of the Court, you were wrong.
I had the feeling that you quoting random parts of the Appellate Court opinion was the equivalent of me trying to figure out the Polish ad for Shop and Save Market. I know what ogorki, kapusta, and kielbasa are, but otherwise make no effort to understand it. Maybe you and Zorn should take the same attitude as to legal matters.