Walsh v. County Officers Electoral Bd. of Cook County

• Decision Date: 03 November 1994
• Docket Number: No. 1-94-1926,1-94-1926
• Citation: 642 N.E.2d 843,267 Ill.App.3d 972
• Parties: , 204 Ill.Dec. 942 Cheryl A. WALSH, Petitioner-Appellant, v. COUNTY OFFICERS ELECTORAL BOARD OF COOK COUNTY, David D. Orr, Aurelia Pucinski and Jack O'Malley, Members; David B. McAfee, Candidate; and David D. Orr in his official capacity as County Clerk of Cook County, Illinois, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 843

642 N.E.2d 843

267 Ill.App.3d 972, 204 Ill.Dec. 942

Cheryl A. WALSH, Petitioner-Appellant, v. COUNTY OFFICERS ELECTORAL BOARD OF COOK COUNTY, David D Orr, Aurelia Pucinski and Jack O'Malley, Members; David B McAfee, Candidate; and David D. Orr in his official capacity as County Clerk of Cook County, Illinois Respondents-Appellees.

No. 1-94-1926.

Appellate Court of Illinois First District, Fourth Division.

Nov. 3, 1994.

Charles J. Gramlich, Gramlich Law Offices, P.C., Springfield, for appellant.

Jack O'Malley, Cook County State's Atty., Chicago (Karen Covy, Deputy State's Atty., and Patricia M. Moser and Sarah E. Wyton, Asst. State's Attys., of counsel), for appellees County Officers Electoral Board of Cook County, David D. Orr, Aurelia Pucinski and Jack O'Malley, and David D. Orr as County Clerk of Cook County.

Martin J. Healy, Jr., Daniel B. Malone, Martin J. Healy, Jr. & Associates, Chicago, for appellee David B. McAfee.

Justice JOHNSON delivered the opinion of the court:

On December 20, 1993, petitioner, Cheryl A. Walsh, filed a petition with the County Officers Electoral Board contesting the qualifications of respondent David McAfee, a candidate for the office of State representative for the 47th Illinois House district, alleging that McAfee failed to establish and maintain a residence in the district before the expiration of the specified period. After a hearing on Walsh's petition, the County Officers' Electoral Board (COEB) directed the State Board of Elections to certify McAfee as the Democratic candidate for the 47th representative district as its representative to the Illinois General Assembly.

Walsh immediately sought judicial review of the COEB's decision in the circuit court of Cook County. The trial court found that although the factual findings of the COEB were not against the manifest weight of the evidence, the facts did not establish an abandonment of respondent McAfee's prior address nor did they support the conclusion that he moved to the 47th district with the intent to establish his permanent residence. Accordingly, the trial court reversed the COEB's order and sustained Walsh's objections to McAfee's qualifications. The State Board of Elections was then directed not to certify McAfee's candidacy for the general election. Shortly thereafter, McAfee filed a motion for reconsideration.

In the interim, a similar residency case, Dillavou v. County Officers Electoral Board (1994), 260 Ill.App.3d 127, 198 Ill.Dec. 516, 632 N.E.2d 1127, was decided by this court and McAfee filed another motion for reconsideration relying upon Dillavou. In light of Dillavou, the trial court vacated its prior order and affirmed the decision of the COEB. The trial court also ordered McAfee certified as the Democratic candidate for State representative from the 47th district. Subsequently, Walsh filed an appeal and sought an expedited hearing. On August 30, 1994, this court heard oral arguments in this case, issued a written order affirming the judgment of the trial court, and stated that a written opinion would be forthcoming. We now issue such opinion.

On appeal, Walsh contends (1) McAfee's actions did not establish either his presence in the 47th district or his intent to reside there; (2) McAfee did not "abandon" his residence in the 48th district and establish residency within the 47th district; and (3) McAfee bears the burden of demonstrating his change of residency.

We affirm.

The following facts are relevant. In 1990, McAfee was elected State representative to the General Assembly from the 47th district. He was reelected to that office in 1992 and again seeks to be elected on November 8, 1994. Between 1990 and 1992, the boundaries of the 47th representative district were reapportioned, rendering McAfee's residence, located at 6493 Apache Drive in Indian Head Park, Illinois, (Apache) in the 48th rather than the 47th district. Although McAfee no longer resided in the 47th district, for purposes of the 1992 election, section 2(c) of article IV of the 1970 Illinois Constitution (Ill. Const.1970, art. IV, § 2(c)) permitted him to run as a candidate from that district despite his failure to reside within its boundaries. McAfee was reelected. Nevertheless, in order to obtain proper certification to run again in 1994, McAfee was required to establish a permanent residence in the 47th district on or before May 8, 1993, 18 months prior to the general election. Ill. Const.1970, art. IV, § 2(c).

McAfee, his wife, Kathleen, and their two children began living at Apache in 1979. On May 2, 1993, to accommodate the redistricting scheme, McAfee moved into an apartment located at 810 Arlington Street, LaGrange, Illinois (Arlington) in the 47th district. He testified that he moved to Arlington with the intent to establish his permanent residence. His wife and children continued to reside at Apache in the 48th district. McAfee indicated that he only stayed at Apache on occasions when his wife was out of town and it was necessary for someone to stay with his son.

On May 3, 1993, he moved his personal belongings into the Arlington apartment. The next day, he changed his voter registration to Arlington and obtained a new driver's license reflecting the new Arlington address. Three days later, he obtained a LaGrange resident vehicle sticker. Early the next month, a telephone was installed at Arlington. He also notified the payroll division of the General Assembly that his correct address was Arlington.

McAfee's Arlington neighbor, Richard Pedkowski, testified that he sees McAfee a few times a week, usually in the morning or late at night and often notices McAfee's car parked near Arlington. Joanne Killian, McAfee's landlady, stated that McAfee receives mail at the apartment and uses his parking space. She also testified that McAfee spends nights at the apartment when he is not in Springfield.

After evaluating all evidence presented, the COEB found as a matter of fact that McAfee established a physical presence with the intent to remain at Arlington and overruled Walsh's objections. The trial court affirmed the COEB's decision and Walsh appeals.

Initially, Walsh asserts that McAfee's actions were not sufficient to qualify him as a resident of the 47th district. She argues that McAfee's move to Arlington was not bona fide and unconditional, citing several facts including the following: McAfee's moving into a one-room efficiency apartment on a month-to-month basis; his visiting his family at Apache; his failure to attempt to sell the Apache residence; his receipt of mail at Apache; his never filing a change of address form with the Post Office; and his failure to move his family to Arlington.

A permanent abode is necessary to constitute a residence within the meaning of the Election Code. (Ill.Rev.Stat.1991, ch. 46, par. 3-2.) The Illinois Constitution mandates that a candidate for the General Assembly must reside in the district he seeks to represent for 2 years prior to the election (Ill. Const.1970, art. IV, § 2(c)), however the Constitution does recognize an exception when redistricting is involved. Section 2(c) additionally provides: "[A] candidate for the General Assembly may be elected from any district which contains a part of the district in which he resided at the time of the redistricting and reelected if a resident of the new district he represents for 18 months prior to the reelection." Ill. Const.1970, art. IV, § 2(c).

"Two elements are necessary to create a residence: physical presence and intent to remain there as a permanent home." (Delk v. Board of Election Commissioners (1983), 112 Ill.App.3d 735, 738, 68 Ill.Dec. 379, 445 N.E.2d 1232.) Concerning the factual determination of intent, this court has held that the surrounding circumstances shall be accorded more weight than simple declarations of intent. Miller v. Police County Board (1976), 38 Ill.App.3d 894, 349 N.E.2d 544.

The aforementioned facts cited by Walsh considered either individually or collectively, and considered in view of McAfee's affirmative actions in furtherance of changing his residence, fail to support her position. McAfee's moving into a one room efficiency apartment on a month-to-month basis does not negate intent to reside there, particularly considering his testimony that he and his wife were "physically separated." Regarding McAfee's visiting his family at Apache, he stated: "I have stayed with my son when my wife has been out of town for a period of about five or six days. * * * There was also one other occasion for maybe a day or two when she went to visit my daughter on Parents Weekend [at her college]. On no other instances have I spent time there." This conduct constitutes a sparse presence at best and does not demonstrate McAfee's lack of intent to reside at Arlington or his failure to be present there on a continual basis.

McAfee's failure to attempt to sell Apache and his failure to move his family to Arlington also do not support the assertion that he does not reside at Arlington. Apache is owned in joint tenancy by McAfee and his wife. Apache is the permanent residence of his wife and son. It is also the permanent residence of his daughter who is away at college. The fact that he did not try to sell the house, therefore, is evident. His family continued to reside there and, while evidence of the residence of a party's spouse and children is relevant, it by no means solely supports a conclusive finding of permanent residence. We also do not believe that his family's presence at Apache, taken in conjunction with the other facts submitted by Walsh, support her conclusion that McAfee did not permanently reside at Arlington.

Regarding the filing of a change of address form with the Post Office, both McAfee and his landlady testified...