Maksym v. the Bd. of Election Commissioners of The City of Chicago, No. 1–11–0033.

CourtIllinois Appellate Court
Writing for the CourtOPINION
Citation347 Ill.Dec. 536,942 N.E.2d 739,406 Ill.App.3d 9
Decision Date24 January 2011
Docket NumberNo. 1–11–0033.
PartiesWalter P. MAKSYM and Thomas L. McMahon, Petitioners–Appellants,v.The BOARD OF ELECTION COMMISSIONERS OF the CITY OF CHICAGO, et al., (Rahm Emanuel, Respondent–Appellee).

406 Ill.App.3d 9
942 N.E.2d 739
347 Ill.Dec.
536

Walter P. MAKSYM and Thomas L. McMahon, Petitioners–Appellants,
v.
The BOARD OF ELECTION COMMISSIONERS OF the CITY OF CHICAGO, et al., (Rahm Emanuel, Respondent–Appellee).

No. 1–11–0033.

Appellate Court of Illinois, First District, First Division.

Jan. 24, 2011.


[942 N.E.2d 741]

Odelson & Sterk, Ltd., Evergreen Park, Burton S. Odelson, Matthew M. Welch, Lauren M. DaValle, Thomas A. Jaconetty, James P. Nally, P.C., Chicago, for Appellant.Kevin M. Forde, Richard J. Prendergast, Michael J. Kasper, Mayer Brown, LLP, Michael K. Forde, Michael J. Gill, Chicago, for Appellee.

[347 Ill.Dec. 538 , 406 Ill.App.3d 10] OPINION
Justice HOFFMAN delivered the judgment of the court, with 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[406 Ill.App.3d 11] 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 now appeal. For the reasons that follow, we reverse the circuit court's judgment, set aside the Board's decision, and order that the candidate's name be excluded (or, if necessary, removed) from the ballot for Chicago's February 22, 2011, mayoral election.

Although the parties engaged in an extensive evidentiary hearing prior to the Board's decision, the pertinent facts are

[347 Ill.Dec. 539 , 942 N.E.2d 742]

largely undisputed on appeal. It suffices for our purposes to summarize and adopt the hearing officer's factual findings, which the Board adopted and which we hereinafter refer to as the Board's findings. In so doing, we conclude that those 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, 319 Ill.Dec. 887, 886 N.E.2d 1011 (2008).

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, D.C., the candidate continued to pay property taxes for the Hermitage house, continued to hold an Illinois driver's license listing the Hermitage[406 Ill.App.3d 12] 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 Election 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 have “resided in” Chicago for the one year preceding the February 22, 2011 mayoral election. The Board based this 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. The petitioners filed a petition for judicial review in the circuit court, and, following the circuit court's confirmation of the Board's decision, they now appeal.

[942 N.E.2d 743 , 347 Ill.Dec. 540]

The standards for our review of an electoral board decision mirror those applicable to review of an administrative agency decision. Cinkus, 228 Ill.2d at 209–10, 319 Ill.Dec. 887, 886 N.E.2d 1011. Thus, for any given issue, our standard of review, which embodies the level of deference we afford the agency on that issue, depends on whether the issue is one of law, one of fact, or a mixed question of law and fact. AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill.2d 380, 390, 261 Ill.Dec. 302, 763 N.E.2d 272 (2001). An electoral board's decisions on questions of law are not binding on a reviewing court, which will review such questions under the nondeferential de novo standard. Cinkus, 228 Ill.2d at 210–11, 319 Ill.Dec. 887, 886 N.E.2d 1011. An electoral board's findings of fact, however, are deemed prima facie true and correct and will not be overturned on appeal unless they are against the manifest weight of the evidence. Cinkus, 228 Ill.2d at 210; 319 Ill.Dec. 887, 886 N.E.2d 1011 735 ILCS 5/3–110 (West 2008). An electoral board's rulings on mixed questions of law and fact—questions on which the historical facts are admitted, the rule of law is undisputed, and the only remaining issue is whether the facts satisfy a statutory standard with which the Board has expertise—will not be disturbed on review unless clearly erroneous. Cinkus, 228 Ill.2d at 211, 319 Ill.Dec. 887, 886 N.E.2d 1011.

[406 Ill.App.3d 13] The issues in this appeal distill essentially to two: whether the candidate meets the Municipal Code's requirement that he have “resided in the municipality at least one year next preceding the election” (65 ILCS 5/3.1–10–5(a) (West 2008)), and, if not, whether he is exempt from that requirement under the Election Code provision stating that “no elector * * * shall be deemed to have lost his or her residence * * * by reason of his or her absence on business of the United States” (10 ILCS 5/3–2 (West 2008)). Each of these issues presents, first, a legal question requiring construction of the relevant statutory provisions, and, second, assuming the Board applied the correct standard (see Du Page County Airport Authority v. Department of Revenue, 358 Ill.App.3d 476, 498 n. 4, 294 Ill.Dec. 507, 831 N.E.2d 30 (2005)), a mixed question of law and fact regarding the Board's application of that standard. We review the legal questions de novo and any mixed questions under the clearly erroneous standard.

We begin by analyzing the statutory requirements to be a candidate for municipal office, which are located in subsection 3.1–10–5(a) of the Municipal Code:

“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).

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, 291 Ill.Dec. 558, 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”);

[347 Ill.Dec. 541 , 942 N.E.2d 744]

Walsh v. County Officers Electoral Board of Cook County, 267 Ill.App.3d 972, 976, 204 Ill.Dec. 942, 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, 68 Ill.Dec. 379, 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 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 [406 Ill.App.3d 14] required the objectors to establish the candidate's disqualification by “clear and satisfactory” proof. See Smith, 44...

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1 practice notes
  • Maksym v. the Bd. of Election Commissioners of The City of Chicago, No. 111773.
    • United States
    • Supreme Court of Illinois
    • January 27, 2011
    ...law and fact—questions on which the undisputed law is applied to the historical facts—are reviewed under the clearly erroneous standard. 406 Ill.App.3d 9, 12, 347 Ill.Dec. 536, 942 N.E.2d 739. (citing Cinkus, 228 Ill.2d at 210–11, 319 Ill.Dec. 887, 886 N.E.2d 1011). The court determined, ho......
1 cases
  • Maksym v. the Bd. of Election Commissioners of The City of Chicago, No. 111773.
    • United States
    • Supreme Court of Illinois
    • January 27, 2011
    ...law and fact—questions on which the undisputed law is applied to the historical facts—are reviewed under the clearly erroneous standard. 406 Ill.App.3d 9, 12, 347 Ill.Dec. 536, 942 N.E.2d 739. (citing Cinkus, 228 Ill.2d at 210–11, 319 Ill.Dec. 887, 886 N.E.2d 1011). The court determined, ho......

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