FIRST DIVISION FILED: January 24, 2011 No. 1-11-0033 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). ) ) ) ) ) ) ) ) ) ) ) ) ) APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY

No. 2010 COEL 020

HONORABLE MARK J. BALLARD, JUDGE PRESIDING.

_________________________________________________________________

JUSTICE H OFFMAN delivered the judgment of the court, with opinion. Presiding Justice Hall concurred in the judgment and opinion. Justice Lampkin dissented, with opinion. OPINION The petitioners, Walter P. Maksym, Jr., andThomas 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 February22, 2011. After an evidentiary hearing, the Board of Election Commissioners of the City of Chicago (the Board) dismissed the objections and ruled that the candidate was entitled to have his name in cluded on the ballot as a mayoral candidate. The petitioners sought judicia l revi ew in the circuit court of Cook County, which confirmed the decision of the Board. The petitioners

nowappeal. For the reasons that follow, we reverse the cir cuit court’s judgment, set as ide the Board’s decision, and order thatNo. 1-11-0033

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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 extens i ve evidentiary hearing prior to the Board’s decision, the pertinent facts are largelyundisputed on appeal. It suffices for our purposes to summarize and adopt the hearing officer’s factual findings, which the Board adopted andwhich we hereinafter refer to as the Board’s findings. In so doing, we co nclude t hat those findings were not against the manifest weight of the evidence. See Cinkus v. Village of Stickney Municipal Officers Electo ral Board , 228 Ill. 2d 200, 210, 886 N.E.2d 1011 (2008). The candidate was born in Chicago and, in Dec emb er 1998, purchaseda 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 dis trict that included the Hermitage house, resigned his office in ord er 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. FromJanuary through May 2009, the candidate lived in an "inlawapartment" in Washington, D.C., while his family rema ine d in the Hermitage hous e. From June 2009 until October 1, 2010, the candidate, and his family, lived in a Washington, D.C., house (theNo. 1-11-0033

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WoodleyHouse) that was leased for the term spanning June 1, 2009, through June 30, 2011. The family received their mail at the Woodleyh ous e and moved most of their clothes and personal belongings to Washington, D.C. They did, however, leave behind at the Hermitage house several larger hous e hold items, including televisions, a piano, and a bed, as well as several personal possessions such as family heirlooms and books. The cand ida te’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 payproperty taxes for the Hermitage house, continued to hold an Illinois driver’s license listing the Hermitage house as his address, continued to list the Hermitage house address on his personal checks, and c ont inued 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. O n Octo ber 1, 2010, the candidate resigned his position of Chief of Staff to the President of the Un ited Sta tes and entered into a lease to live in an apartment located on Milwaukee Avenue in Chicago fromOctober 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.No. 1-11-0033

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Fromthese facts, the Electi on Board concluded that the candidate m et th e qualification for candidacy, contained in subsection 3.1-10-5(a) of the Illinois Mu ni cipal Code (Municipal Code) (65 ILCS 5/3.1-10-5(a) (West 2008)), mandating that he have "residedin" 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 contac ts with Chicago, intended to return to Chicago and to the Hermitage house, andhad lived in Washington, D.C., solely for the purpose of working for the President. The petitioners filed a petition for judicial rev iew in the circuit court, and, following the circuit court’s confirmation of the Board’s decision, they now appeal. The standards for our review of an electoral boar d d ecision mirror those applicable to review of an administrative agency decision. Cinkus , 228 Ill. 2 d at 2 09-10. Thus, for any given issue, our standard of review, wh ich embodies the level of deference we afford the agency on that issue, depends on whether the i ss ue is one of law, one of fact, or a mixed question of law andfact. AFM Messenger Service, Inc. v. Department of Employment Security , 198 Ill. 2d 380, 3 90, 763 N.E.2d 272 (2001). An electoral board's decisions on questions of law are not binding on

a reviewing court, which will r evi ew such questions under the nondeferential de novostandard. Cinkus , 228 Ill. 2d at 210-11. An electoral board's findings of fact, however, are deemed prima facietrue andcorrect and will not be overturned on appeal unlessNo. 1-11-0033

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they are against the manifest weight of the evidence. Cinkus , 228 Ill. 2d at 210; 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 standardwith which the Boardhas expertise--will not be disturbed on review unless clearly erroneous. Cinkus , 228 Ill. 2d at 211. The issues in this appeal distill essentiallyto 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 unde r t he 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 requ irin g constr ucti on 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, 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 novoand any mixed questions under the clearly erroneous standard. We begin by a nal yzing the statutory requirements to be a candidate for municipal office, which are located in s ubsectionNo. 1-11-0033

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3.1-10-5(a) of the Municipal Code:

"Aperson is not eligible for an elective municipal office unless that person is a qualified e lector of the municipalityand 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 t he candidate met the Municipal Code’s requirement that he have "re si ded in" the municipalityfor 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 severa l ap pellate 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. 3d842, 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 toNo. 1-11-0033

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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 offi ce to which he had been appointedand in which the court required the objec tor s 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 th e le ss 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 lawand 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 domi cile . Despite the facts that the officeholder had left Illinois with his familyand had rented out his Illinois home, the supreme court concluded, based sole ly 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 an othe r." Hayes v. Hayes , 74 Ill. 2d 312, 314 (1874). Since Smith was decided, however, our supremeNo. 1-11-0033

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court has explain ed une quivocally that "it is elemental that domicile and residence are not synonymous." Pope v. Board of Election Commissioners , 370 Ill. 196, 202 , 1 8 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 residencyr equirement through intent alone, without any permanent abode, the supreme cou rt has since abandoned Smith ’s approach. For this reason, along with the abovediscussed reasons, we do not view Smith as controlling this case. Aside from Smith , the candidate urges that the test to be appliedin determining whether he has residedwi thin Chicago for one year prior to the February 22 mayoral election is the same as the test for determining residency under the Election Code. He bases this argument, in part, upon the assertion that the Election Code and the Municipal Code should be interpreted in pari materia . See Cinkus , 228 Ill. 2d at 218-19. The doctrine of in pari materia , however, does not dictate that terms in separate statutes be g iven identical meanings; it dictates only that separate statutes bearing on the same subject matter be given h armoni ous interpretation. E.g. , Gerard v. White , 356 Ill. App. 3d 11, 17, 826 N.E.2d 517 (2005). We, therefore, do not view the doctrine of in pari materia as a bar to distinguishing the Election Code’s residencyrequirement from th e Municipal Code’s one-year "reside in" requirement for candidates. In fact, as we discuss below, weNo. 1-11-0033

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view the doctrine, which is actually an outgrowth of the more gener al rul e that courts should consider statutory provisions in light of the entire relevant statutory scheme ( Gerard , 356 Il l. App. 3d at 17), as support for our conclusion that the requirements of the Election Code and the Municipal Code, although distinguishable, may nevertheless be read in harmony. The supreme court has not directly addressed the notion that the legislature intended the Municipal Code’s one-year "reside in"

r equirement for candidates to coextend with the residen c y requirement for voters, but the court has at least once noted the distinction between candidate and voter residencyrequirements. In Peopleex rel. Moran v. Teolis , 20 Ill. 2d 95, 169 N.E.2d 232 (1960), a party argued that a voter residency requirement should be extendedbased on the policy embodied by a precursor to the Municipal Code section now at issue, which provided, as it provides now, that a candidate for municipal office be a qualified elector and h ave resided in the area at least one year preceding th e election. Moran , 20 Ill. 2d at 104 (discus sing Ill. Rev. Stat. 1957, ch. 24, par. 9-87). The supreme court answered tha t the statute "differentiate[d] between 'electors' and those persons who may qualify for municipal office." Moran , 20 Ill. 2d at 104. With the exception of Smith , which we hav e already dist inguished, the supreme court has limited its analysis o f residencyrequirements to voter qualification cases. See Clark v. Quick , 377 Ill. 424, 426-27, 36 N.E.2d 563 (1941) ("residence forNo. 1-11-0033

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voting purposes means an actual place of abode" (emphasis added);

" 'a real and not imagina r y abode, occupied as his home or dwelling, is essential to satisfy the legal requirements as to the residence of a voter ' " (emphasis added)); Coffey v. Board of Election Commissioners of East St. Louis , 375 Ill. 385, 387, 31 N.E.2d588 (1940) ("[a] residence, for voting purposes , is not lost bytemporary remo val wi th the intention to return" (emphasis added)); Park v. Hood , 374 Ill. 36, 43, 27 N.E.2d838 (1940) ("[a] real and not an imaginary abode, occupied as his home or dwelling, is essential to satisfy the legal requirements as to the residence of a voter " (emphasis added)); Pope , 370 Ill. at 198-99 ("The determination of this ques tion requires a review of the qualifications for registration and voting " (emphasis added)); Anderson v. Pifer , 315 Ill. 164, 146 N.E. 171 (1924) ("Whethe r a college student is entitled to vote " based on residence is a question of fact (emphasis added)). Consequently, we have neither a current supreme court directive, nor persuasive appellate court reasoning, compelling us to treat candidate residency requirements in the same manner as voter residency requirements, and we have

some indications from the supreme court that the requirements might diverge. We must, therefore , ou rselves interpret the Municipal Code’s use of the phrase "residedin" to determine if it shouldbe construedas being synonymous with, or different from, the Election Code’s residency requirements for voters. We begin this task by resort to familiar principles ofNo. 1-11-0033

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statutoryinterpretation. For a court interpreting a statute, the prima ry goal is to ascertain and give effect to the intention of the legislature, and the best indicator of that intent is the statute’s language, given its plain andordinary meaning. Cinkus , 228 Ill.2d at 216. As noted, the operative language at issue requires that a potential candidate have "resided in" the municipality for one year next preceding the election. In its verb form, "reside" generally means, among other things, "to dwell permanently or continuously,"

or to "have a settled abode for a time." Webster’s Third New International Dictionary 1931 (1993). The word is considered to be synonymous with "live, dwell, sojourn, lodge, stay, put (up), [and] stop," but it "ma y be the preferred term for expressing the idea that a person keeps or returns to a particular dwelli ng place as his fixed, settled, or legal abode ." Webster’s Third New International Dictionary 1931 (1993). These definitions are not interchang ea ble for our purposes:

our selection of the synonym "live" as a fair definition of "residedin" would defeat the candidate’s el igibility to run for office, because he most certainly "lived" outside Chic ago fo r a large part of the statutory one-year period. On the other hand, our selection of a conception of "residedin" more akin to the idea of a permanent abode a person keeps or to which he plans to return-- the definition the Board seem s t o have employed--would lend much greater support to the candidate’s position. The question for us,No. 1-11-0033

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then, becomes which of these definitions the legislature meant to invoke with its use of the phra se "reside in" in the Municipal Code. In interpre ting a statute, a court should consider, in addition to the statutory language, the reason for the law, the problems to be remedied, and the objects and purposes sought bythe law. People v. Donoho , 204 Ill. 2d 159, 171-72, 788 N.E.2d 707 (2003). Our research int o legislative purpose reveals that candidate "reside in" qualifications of the type now at issue date to our State’s first constitution, wh ich im posed upon candidates for the offices of state representative andsenator the requirement that they have "resided" within the are a for 12 months (or one year) prior to their election andimposed upon lieutenant governor candidates the requirement that they have "resided" w it hin the State for two years preceding their election. See Ill. Const. 1818, art. II, §2, §6; Schedule §13. Similar "reside in" qualifications have appeared, both in Illinois’ constitutions and in its statutes, since 1818. See e.g. , Ill. Const. 1848, art. III, §3, §4; 1861 Ill. Laws 267; 1917 Ill. Laws 258. Although it lacks precedential force (see Bryson v. News America Publications, Inc. , 174 Ill.2d 77, 95, 672 N.E.2d 1207 (1996)), the decision in Peoplev. Ballhorn , 100 Ill. App. 571, 573 (1901) , provides what we view as a reasonable interpretation of the purpose underlying such candidate "reside in" requirements. B allhor n explains that those requirements ensure "that those whoNo. 1-11-0033

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represent the local units of gove rnment shall themselves be component parts of such units." People v. Ballhorn , 100 Ill. App. 571, 573 (1901). As Ballhorn further explains, requirements that candidates "reside in" the area they would represent "can only be tru ly ser ved by requiring such representatives to be and remain actual residents of the units which they represen t, in contradistinction from constructive residents. A mere constructive resident has no better opportunities for knowing the wants and rightful demands of his constituents, than a non-resident, and is

as much beyond the wholesome influence of direct contact with them.

*** In [the candidate residency statute] the language is not, shall be a resident, but it is, shall 'reside withi n' ***." Ballhorn , 100 Ill. App. at 573. Although nearly 200 years of technological advances since Illinois’ first candidate "reside in" requirements mayhave obviated much of their necessity, the legislature has not

seen fit to alter the relevant language. We believe, therefore, that the initial purpose of the "reside in" requirement for candidates, and the failure of the le gislat ure to alter that language in the current Municipal Code, strongly indicates that the phrase "resided in" as used in the Municipal Code requires actual, not constructive, residence. Another familiar principle of statutory interpretation teaches that a "statute should be evaluatedas a whole, with each provision construedin connec tion with every other section." Cinkus , 228 Ill. 2d at 216-17. For our purposes, this maxim requires that weNo. 1-11-0033

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consider not only subsection 3.1-10-5(a) of the Municipal Code, but also any other relevant portions of the statute. Subsection 3.1-10-5(a) of the Municipal Code sets fo rth tw o qualifications for candidates: it states that a candidate must be "a qualified elector of the municipality and [must have] resided in the municipality at l eas t one year next preceding the election." 65 ILCS 5/3.1-10-5(a) (West 2008). These two qualificati ons are stated separately and in the conjunctive. The first part of the con j unctive--the "qualified voter" requirement--invokes the qualifications for electors stated in sections 3-1 and 3-2 of the Election Code. See 10 ILCS 5/3-1, 3-2 (West 2008). In pertinent part, those statutes provide as follows:

"§ 3-1. Every person *** who has resided in this State andin the election district 30 days next preced ing any election therein *** and who is a citizen of the United States, of the age of 18 or more years is entitled to vote at such election for all offices and on all propositio ns." 1 0 ILCS 5/3-1 (West 2008). and "§ 3-2. (a) Apermanent abode is necessary to constitute

a residence within the meaning of Section 3-1. No elector or spouse shall be deemed to have lost h is or he r residence in any precinct or election district in this State by reason of his or her absence on business of the United States, or o f this State." 10 ILCS 5/3-2(a) (West 2008).No. 1-11-0033

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In Park v. Hood , our supreme court held:

"It is well settled that the terms 'r esiden ce' and 'permanent abode,' as employed in [the Elec tion Code], are synonym ous. [ Citations.] A real and not an imaginary abode, occupiedas his home or dwelling, is essential to satisfy the legal requirements as to the residence of a voter. One does not lose residence by temporary removal with the intention to return, or even with a conditional intention of acqui rin g a

newresidence, but when one abandons his home and takes up his residence in another county or election district, he loses his privilege of voting in the district fro m w hich he moved. [Citations.] The question of residence is largely one of intention, and a voter is competent to testify as to his intention, although such testimony is not necessarily conclusive." Park , 374 Ill. at 43. Fromthe admitted facts in this case, we find that the candidate clearly satisfied the qualifications to be an elector for the February22, 2011, municipal election. Without addressing the question of whether the Hermitage house constituted the candidate’s permanent place of abode while it was under lease, we conclude that the candidate clearly falls within the exception to section 3-1 articulatedin subsection 3-2(a ) ( see Pope , 370 Ill. at 199); namely, that he absented himself from the City of Chicago on business of the United States and therefore did not lose the voter residency status that he had theretofore established in Chicago.No. 1-11-0033

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Having determined that the candidate satisfies the requirement to be an elector, we must still address the question of whether he has "resided in" the City of Chicago for at least one year next preceding the February 22, 2011, mayoral election; the second requirement for candidacy. 65 ILCS 5/3.1-10-5(a) (West 2008). As we have observed , the "reside in" requirement is stated separately from, and in addition to, the requirement that he be a qualifiedelector of Chicago in order to be a candidate for municipal office. The fact that the two requirements are stated separately and in the conjunctive leads to the inference that the legislature intended that they be considered separately from, and in addition to, each other. This inference is bolstered by language from the remainder of section 3.1-10-5. Subsection 3.1-10-5(d) provides that:

"If a person (i) is a res ide nt of a municipality immediatelyprior to the active dutymilitary service of that person or that person’s spouse, (ii) resides anywhere outside of the municipality during that active duty military service, and(iii ) immediately upon completion of that active duty militaryservice is again a resident of the municipality, then the time during which the person resides outside the municipalityduring active dutymilitary service is deemed to be time during which the person is a resident of the municipalityfor purposes of determining the residency requirement under subsection (a)." 65 ILCS 5/3.1-10-5(d)No. 1-11-0033

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(West 2008). For the point that the Municipal Code’s "reside in" requirement is separate from the residency requirement for an elector, we fi nd particularlyinte re sting subsection 3.1-10-5(d)’s concluding language that its exception applies "for purposes of de termining the residency requirement under subsection (a)." Subsection 3.1-10- 5(a) contains only one explicit residency requirement: that a candidate have "resided in the municipality for one year." Thus, subsection 3.1-10-5(d)’s reference to "the residency requirement under subsection (a)" must refer to the explicit one-year candidate residency requirement contained in subsection 3.1-10-5(a) and not the voter residency requirements set forth in sections 3-1 and 3-2 of the Election Code. Additionally, subsection 3.1-10-5(d), which we quote above,

uses the words "resident" and "reside" to different effect. The subsection uses the word "resident" first to describe the concept of legal residence, by referring to a military serviceperson who

" is a resident of a municipality." Just after that referen ce , however, the subsection uses the word "reside" to refer to the serviceperson’s act of "resid[ing] anywhere outside of the municipality." This usage of the word "reside" does not denote the concept of legal residence, but rather the act of actually living somewhere outside the municipality. Our interpretation that, in using the phrase "resides anywhere outside of the municipality" in subsection 3.1-10-5(d), theNo. 1-11-0033

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legislature inten ded to refer to the act of living somewhere outside the municipality is further supported by the wording of the verynext clause of that subsection. The clause refers to a person becoming " aga in a r esident of the municipality" (emphasis added) upo n his or her return after military service. If the military serviceperson must "again" become a resident of the municipality, then it logically follows that the person lost his or her resident statu s at some time prior thereto. The only manner in wh ic h subsection (d) contemplates a person losing residency status is by living outside of the municipality. Thus, subsection 3.1-10-5(d)

assumes t hat a pe rson who is absent from a municipality will not meet the "reside in" requirement of subsection 3.1-10-5(a), but, by

reason of the provisions thereof, a compliant m i litary serviceperson is deemed to have been a resident during the period of absence. Basic rules of statutoryconstruction provide that "where the

same words appear in different parts of the same statute, they shouldbe given the same meaning unless something in the context indicates that th e le gislature intended otherwise." McMahan v. 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 "r eside" to mean actually live in subsection 3.1-10-5(d) of the Municipal Code strongly indicates that it intended the same meaning in subsection (a). Th e cand idate resists this interpretation by arguing thatNo. 1-11-0033

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subsection 3.1-10-5(d) "addresses the situation in which a service member *** aband ons his municipal residence and establishes residence elsewhere." We have two diffic ulties with the candidate’s reading of subsec tion ( d). Our first difficulty is that it would interpret the statute to apply to an almost imperceptiblynarrow class of individuals; namely, those servicepeople who somehow establish full legal residency, that is,

a permanent place of abode ou tsi de the municipality, then, after h avi ng formed an intent to remain outside the municipality, take the first opportunity to return. Our interpretation of the subsection, on the other hand, would have it apply in the logically feasible , an d presumably quite common, situation in which a serviceperson’s duty draws him or her from the municipality, and, immediatelyupon completion of his or her military assignment, the serviceperson returns. Our second difficulty with the candidate’s reading of subsection 3.1-10-5(d) is that it is belied by the legislative histo ry underlying the subsection. During debate for the senate bill whose passage added subsection (d) to section 3.1-10-5 of the Municipal Code (see 95th Gen. Assem., Senate Bill 253, 2007 Sess.), Senator Luechtefeld, one of the senators who pres ent ed the bill, explained the original version as follows: "Senate Bill 253 provides that if a person meets all the requirements necessaryto run for municipal office, but their time as an active duty member of the military interrupted theNo. 1-11-0033

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residencyrequirement, theyshall be permittedto run for that office. A *** situation occurred in my district where an individual was in Iraq and *** he came back, wanted to run for municipal office, but did not meet the one-year r esidency requirement. This would simply allow them to come back to that same district, the same ward, and run as if they had been there." 95th Gen. Assem., Senate Proceedings, Marcy 29, 2007, at 13 (statements of Senator Luechtefeld). Senator Luechtefeld described the final version of the bill in similar terms: "If you’ll remember, I had a bill that we passed unanimously out of here to allow a person to go into the militaryand *** be gone maybe a year or two andthen come back to a community andrun for office, that he would not lose his eligibility because of residency. The House has changed the bill a little bit, but it passed over there unanimously also." 95th Gen. Assem., Senate Proceedings, May31, 2007, at 37-38 (statements of Senator Luechtefeld). This legislative history supports our interpretation that subsection 3.1-10-5(d) of the Municipal Code uses the word "reside" to mean actually live rather than having legal vo tin g residence, andit further undercuts the candidate's argument to the contrary. Basedon the foregoing analysis, we conclude that, under subsection 3.1-10-5(a) of the Municipal Code, a candidate must meet not only the Election Code’s voter residency stand ard, b ut alsoNo. 1-11-0033

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must have actually resided within the munici pality for one year prior to the election, a qualification that the candidate unquestionablydoes not satisfy. Because th e candidate does not satisfythat standard, he may be eligible for inclusion on the ballot only if he is somehow exempt from the Municipal Code’s "reside in" requirement. To that end, the candidate argues that, regardless of whether he meets the candidate eligibility requirements of subsection 3.1- 10-5(a) of the Municipal Code, he nonetheless may be qualified as

a candidate by virtue of section 3-2 of the E lection Code, which provides as follows:

"(a) A permanent abode is necessary to constitute a residence within the meaning of Section 3-1. No elector or spou se shall be deemed to have lost his or her residence in any precinct or election district in this State by reason of his or he r abs ence on business of the United States, or of this State." 10 ILCS 5/3-2 (West 2008). A ccor ding to the candidate, he falls within this exception because his absence from Chicago was attributable to his service as the Chief of Staff to the President of the United States. We agree with the candidate that his service constituted " bus iness of the Un ited States" and thus that this exception applies to him. We disagree, however, with his position that the exception saves his candidacy. In our view, the exception embodied by section 3-2 of the Election Code applies only to voter residency requirements, notNo. 1-11-0033

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to candidate residency requirements. We base this conclusion largely on the plain language of the Election Code. That plain language limits the reach of the "business of the United States" exception to "elector[s]" or their spouses; it makes no mention of "candidates." Further, as we have noted, we must interpret statutes "as a whole, with each provision construedin c onnect ion with every other section." Cinkus , 228 Ill. 2d at 216-17. Section 3-2's "business of the United States" exception is housed not only in the Election Code, but in a portion of the Election Code dealing exclusivelywith voter qualification, in fact in an Article titled "Qualif icati on of Voters." See 10 ILCS 5/3-1 through 3-5 (West 2008). As explained above, the Municipal Code sets forth two qualifications for candidates: they must meet the Election Code’s standards for a "qualif ied voter," andthey must have "resided in" the municipality for one year preceding the election. The location of section 3-2's "business of the United States" exc eption--in the Election Code, and in an article of the Ele ctio n Code dedicated exclusively to voter qualification--supports the conclusion that the exception applies onlyto the Election Code’s "qualified voter" standard, and not to anysupplemental candidate qualifications located outside the Election Code. We find further support for our construction of the reach of section 3-2 in the rule that a court, when possible, should read a

s tatute so as to give effect to all of its provisions and renderNo. 1-11-0033

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none meaningless or superfluous. E.g. , Grafner v. Dept. Of Employment Security , 393 Ill. App. 3d 791, 803, 914 N.E.2d 520 (2009). As we have noted above, among its provisions regarding candidate qualification, the Municipal Code contains an exception that , for purposes of the candidate residency requirement o f subsection 3.1-10-5(a) of the Municipal Code, allows those in active military service to be deemed residents of a munic ipa lity during the pendency of their military service even when they reside outside the municipality during their service. 65 ILCS 3.1-10-5(d) (West 2008). If section 3-2 of the Election Code applied to candidates, then its statement that a person will not lose his or her residence "by reason of his or her absence on business of the UnitedStates" would certainly apply to relax the can didate residency qualifications on those who serve in the nation’s armed forces. If w e we re to interpret section 3-2 as applying to candidates as well as voters, then, subsection 3.1-10-5(d) of the Municipal Code would become wholly redundant. Our duty to give meani ng to statutory enactments where possible, like our duty to follow the plain language of the statutes we interpret, therefore compels the conclusion that section 3-2 of the Election Code was intendedto create a residency exception for vote rs, no t candidates. 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 toNo. 1-11-0033

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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 constitut ion, i n 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), andonce for voters (Ill. Const. 18 48, ar t. VI, §5). The 1848 Constitution thus separately delineated "business o f th e United States" exceptions for candidates and for voters. Illinois’ next constitution, in 1870, retained the "business of the UnitedStates" exception as it related to voters (see Ill. Const. 1870, art. VII, §4), ye t c onspicuously 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, combi ned with our interpretation of the language of section 3-2 a nd 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 foregoin g reasons, we conclude that the candidate neither me ets the Municipal Code’s requirement that he haveNo. 1-11-0033

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"resided in" Chicago for the year preceding the election in which he seeks to participate nor falls within any exception to the requirement. Accordingly, we disagree with the Board’s conclusion that he is eligible to run for the office of Mayor of the City of Chicago. We reverse the circuit court’s judgment co nfirming the Board’s decision, set aside the Board’s decision, and, pursuant to Supreme Court Rule 366(a)(5) (Ill. Sup. Ct. R. 366(a)(5) (eff. Feb. 1, 1994)), order that the candidate’s name be excl uded (or, if necessary, removed) from the ballot for the February 22, 2011, Chicago mayoral election. Reversed. JUSTICE LAMPKIN, dissenting. I dissent. I would affirm the judgment of the circuit court, which confirmed the decision of the Board. The candidate is entitledto have his n ame includ ed on the ballot as a mayoral candidate because he has satisfiedthe requirements of section 3.1- 10-5 of the Municipal Code where he is both a qualified elector of Chicago and has resided in Chicago at least one year next preceding the election. I disagree with the majority’s c ontrar y conclusion that the candidate is not eligible to be on the ballot because that conclusion is based on an analysis of two issues–establishing residencyand a statutory exemption to th e res idency requirement–that are not relevant to the resolution of this case.No. 1-11-0033

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The majority acknowledges that the candidate had establis he d a residencyin Chicago long before 2009 where he had both a physical presence here and the intent to remain. The majority failed, however, to move past the issue of establishing residency to the relevant analysis, whic h turns on whether the candidate’s residency, which he had indisputably held, was abando ned when he worked in Washington, D.C., and leased his Chicago home. The Board’s ruling–that the candidate in 2009 and 2010 did not abandon his status as a resident of Chicago and, thus, remained a resident of Chicago even though he was largely absent from this city from January 2009 until October 1, 2010–was not clearl y erroneous. Intent is an issue of fact ( Delk , 112 Ill. App. 3d at 738), andthe majority acknowledges that the Board’s fact findings

were not against the manifest weight of the evidence. This acknowledgment should have ended this case, and resul ted in this court affirming the circuit court’s judgment, which confirmed the Board’s ruling that the preponderance of the evidence established that the candidate never formed an intent to either change or terminate his residence in Chicago, or establish his residence in Washington, D.C., or any place other than Chicago. Because the candidate had established his Chicago residency, it is pres umed to continue until the contrary is shown, and the burden of proof is on the person who claims that there has been aNo. 1-11-0033

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change. Hatcher v. Anders , 117 Ill. App. 3d 236, 239 (1983). In the foundational case Kreitz v. Behrensmeyer , 125 Ill. 141 (1888), the supreme court stated: “We have freque ntly held that when a party leaves his reside nce, or acquires a new one, it is the intention with which he does so that is to control. Hence the

s ho rtest absence, if, at the time, intended as a permanent abandonment, is sufficient, although the party may soon afterwards change his intention; while, on the other hand, an absence for months or even years, if all the while intended as a mere temporary absence for some temporarypurpose, to be followed by a resumption of the former residence, will not be an abandonment.” Kreitz , 125 Ill. at 195. Th e m ajority does not acknowledge Kreitz even though it has been the leading case defining “residence” since its issuance 122 years ago. To the extent the majority addresses the long-held principle that a party’s intention when he leaves or acquires his resid en ce largely controls the determination of whether he has abandonedthe residence, the majority distorts this principle (see discussion of Smith below). Then, the majority simply reads the principle out of its analysis, choosi ng instead to adopt a completely new standard.No. 1-11-0033

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In order to have changed one’s residence, a person, both in fact and inte nti on, must have abandoned the former residence and acquired a new one by actual residence with the intent to make it a permanent home. See Frisbie , 44 Ill. 16; Welsh v. Shumway , 232 Ill. 54, 77 (1907); Baumgartner , 355 Ill. App. 3d at 848. Affirmative acts must be proved to sustain the abandonment of a residence, anda temporary absence, no matter how protracted, does not equate with abandonment. Hughes v. Illinois Public Aid Comm’n , 2 Ill. 2d 374, 380-81 (1954); Davis v. Davis , 9 Ill. App. 3d 922, 926 (1973); Hatcher , 117 Ill. App. 3d at 239. Because a pers on may have only one residence for voting purposes, when a person has established a physical presence in two locations, he must make a decision about which location he intends to make his permanent residence. Baumgartner , 355 Ill. App. 3d at 849. As long as he does not seek to “e xercise the rights of propertyor of citizenship incident to or resulting from permanent residence” at his new location but, instead, continues to exercise those rights, including t he right to vote, at his original location, he remains a resident at the original location. Baumgartner , 355 Ill. App. 3d at 849, qu oting We lsh , 232 Ill. at 88-89; see also Tuthill v. Rendleman , 387 Ill. 321, 342-43 (1944). Application of these well-established principles to the instant case compels the conclusion that the candidate did notNo. 1-11-0033

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abandon his Chicago residence while he worked in Washington, D.C. According to the record, the candidate testified that he intended to work in Washington, D.C., for no more than two years. Consistent with that intent, he leased his Chicago home on a shortterm basis. Although he and his wife were initially reluctant to lease their Chicago home, they heeded the advice of their friend and real estate consultant to lease the home during their absence for safety purposes. The candidate’s intent to work in Washington, D.C., for the limited time frame and then return to his home in Chicago was confirmed by the testimony of three personal friends. T he c andidate initially rented an apartment in Washington, 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 candidate’s children in order to provide the least disruption possible to their education. Prior to the family’s move to Washington, D.C., the candidate’s wife and her friends filled 100 boxes with belongings that were then left in a locked storage area in the basement of the Chicago home. The candidate described the stored items as the family’s most valuable possessions, including his wife’s wedding gown, heirloom china, family photograph albums,

an h eirloo m coat brought by the candidate’s grandfather when he immigrated to the United States, the clothes and birth outfits of the candidate’s c hildren, and their school projects and reportNo. 1-11-0033

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cards. Additionally, the candidate’s family returned to Chicago two

or thre e tim es for physician’s appointments and celebratory gatherings. The candidate’s wife maintained contact with the lessees of the Chicago home in order to facilitate repairs within the home and to schedule three or four occasions for the piano of the candidate’s family to be tuned in their absence. Furthe rm ore, the candidate never voted in Washington, D.C.,

never changed his driver’s license to Washington, D.C., never registeredhis car in Washington, D.C., never purchasedproperty in Washington, D.C., never conducted personal banking in Washington, D.C., and never demonstrated an intent to sell his Chicago home. The c ha llengers failed to counter the candidate’s evidence, andthe Board found that the weight of this evidence established that the candidate intended to maintain his res ide nce in Chicago throughout the time of his temporary employment in Washington, D.C. Since the majority could not meddle with the Board’s fact findings or its ruling based on the proper application of the manifest weight and clea r ly erroneous standards, the majority attacks the Board’s ruling from another angle. Specifically, the majority promulgates a new and undefined standard for determining cand idat e residency requirements despite the plethora of clear, relevant and well-established precedent that has been used by our circuit courts and election boards for decades. In order to launchNo. 1-11-0033

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its new standard, the majority first attempts to clear the relevant precedent from the field. The majority attempts to discard the rulings in Baumgartner , Walsh , and Delk , three of the most recent appellate court decisions interpreting the term “has resided in” in the context of candidacy. According to the majority, those decisions are of little value because they “equate[d]” the voter and candidate residency requirements without an adequate discussion. I disagree with the majority’s ch aract erization of the analysis in Baumgartner , Walsh , and Delk . Surely the author of this opinion, Justice Hoffman, must have agreed with the analysis andholding in Walsh because he was one of the concurring justices

on that opinion. In Walsh , he agreed that physical pr esence a nd intent to remain at a place as a permanent home created a residence for purposes of candidacy. Walsh , 267 Ill. App. 3dat 976. In Wal sh , Justice Hoffman agreed that intent was a factual consideration and that Delk , which he now dismisses, supportedhis position. Id . Neither Baumgartner , nor Walsh , nor Delkhas been overruled or

even called into question. Indeed, the supreme court denie d petitions for leave to appeal in both Baumgartner and Walsh , and no petition was ever filed in Delk . Accordingly, these three cases

rem ain undisturbed. Baumgartner is a Fourth District case, an dNo. 1-11-0033

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Walsh and Delkare First District cases. Although the principle of staredecisis does not require an appellate court to follow the decisions of its sister divisions or other districts, the cases at issue remain persuasive. The majority completely ignores Dillav ou , a recent Fourth Distri c t case that addressed candidate residency, even though Walsh , on whic h Justice Hoffman previously concurred, favorably cited Dillavou and discussed it at length. Walsh , 267 Ill. App. 3d at 978-79. I recognize that the question in Dillavou was whether the candidate at issue had established a residence in the required district; however, the case cites app ro vingly to supreme court election cases such as Clarkand Kreitz . Dillavou , 260 Ill. App. 3dat 132. Of particular relevance to the case before this court, Dillavou quotes the language of Clarkand Kreitz , whi ch provides that, once established, a residence will not be lost by an individual’s absence from t hat residence unless the individual demonstrates such an intent. Dillavou , 260 Ill. App. 3d at 132-33. The m ajority’s attempt to maneuver around the supreme cour t decision in Smith is futile. Smith cannot be distinguished from the relevant issue the majority should have addressed here, i.e. , whether the candidate abandoned his Chicago residence. Smith reviewedwhether the appellant was eligible for his appointment to the judiciary in accordance with the constitutional requirement toNo. 1-11-0033

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have been a resident of Illinois for five years next preceding his appointm ent. Smith , 44 Ill. at 23-24. Smith focused on the relevant issue, i.e. , whether the appellant lost his Illinois residencywhere he had resided in Illinois for many years before he left to live and work in Tennessee for several months and t he n returnedto Illinois. Smith , 44 Ill. at 24. Smith determined the prosecutor failedto prove by clear and satisfactoryevidence that the appellant lost his Illinois residency. Smith , 44 Ill. at 24- 25. The majority is wrong when it contends the Smith decision was “basedsolely on the officeholder’s intent to return.” To the contrary, the court, in reaching its determination, considered“all of the circumstances in evidence,” and not solelythe prosecution’s failure to establish that the appellant never intended to abandon his Illinois residence. Smith , 44 Ill. at 24-25. Specifically, the court considered the appellant’s frequent declarations that his

move to Tennes see w as only an experiment and he would return to Illinois if he found that he could not remain with satisfaction among the Tennesseans. Smith , 44 I ll. at 24. Further, the appellant refused his partner’s request to vote in Tennessee for a particular candidate, saying he did not want to lose his Illinois citizenship. Smith , 44 Ill. at 24. The appellant also refused to sell his Illinois law books, saying that he would probably returnNo. 1-11-0033

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to Illinois and would need them in his practice. Smith , 44 Ill. at 24. Moreover, the appellant only rented his residence when he left Illinois. Smith , 44 Ill. at 24. The majority speculates tha t the supreme court in Smith nominallydiscussed pr i nciples of residence while it actually appliedconcepts of domicil e. Su ch speculation is baseless and refutedby the text. Although the terms and concepts of residence and domicile were referenced in the prosecution’s presentation of the fact s and law ( Smith , 44 Ill. at 22-23), in its opinion, the Smith court spoke of residenceand never used the term domicile ( Smith , 44 Ill. at 24-25). Furthermore, there i s no support for the majority’s assertion that the Smith analysis was based solely

on intent, which supposedly is “the defining characteristic of the principle of domicile.” Sm ith clearly stated “that, when the residence is lost, it is by a union of intention and acts ***.” (Emphasis added). Smith , 44 Ill. at 25. Clearly, Smith , consistent with Park , analyzed the question of residence not solely basedon intent but, rather, “largely” based on intent. Park , 374 Ill. at 43. The majority imagines that the supreme court did not know the difference between residenceand domicileuntil it issued Pope , and that Popesignifies that the court “has since abandoned” tha t solelyi nten t-based approach for which Smith supposedly stands.No. 1-11-0033

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This is pure flight of fancy. Popene ither ci tes nor criticizes Smith . Instead, Popeconfirms the well-established legal premise that once a residence has been established, “a person, by temporary removal of himself and his family into another State with the intention to return, will not thereby lose his residence in this State provided he does no act from which the acquisition of a new residence may be inferred.” Pope , 370 Ill. at 200. The majority has failed to abide by the principle, stated in Pope , that once a residence is established, as was uncontested here, the court must look to the fact s to d etermine whether the individual abandoned that residence or intended to return to it. Pope , 370 Ill. at 203. The majority’s analysis goes further astraywhen it construes the statutoryrequirements to be a candidate for municipal office. The Municipal Code expresslyprovides that “[t]he general election lawapplies to the scheduling, manner of conducting, voting at, and

con te sting of municipal elections.” 65 ILCS 5/3.1-10-10 (West 2008). In addition, the supreme court has held that provisions of the Election Code and Municipal Code may be considered in pari materia for purposes of statutory construction. Cinkus , 228 Ill. 2d at 218-19. Accordingly, a court that is construing provisions of the Municipal Code concerning candidate residency requirements should also consider the similar provisions of the Election CodeNo. 1-11-0033

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concerning voter residency requirements. Well-established precedent shows that court s have construed the “has resided in” phras e used in section 3.1-10-5(a) of the Municipal Cod e 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. 3d at 738; Walsh , 267 Ill. App. 3d at 976; Baumgartner , 355 Il l . App. 3d at 847-48. Nevertheless, the majority, compl et ely unsupportedby citation to an y c ase law, arrives at different meanings for the terms “residence” and “has resided in” as used in section 3.1-10-5(a) of the Municipal Code and sections 3-1 and 3- 2(a) of the Election Code. The Municipal Code and the Election Code both r equire a candidate or a voter to have “resided in” the relevant locale for eligibility. Compare 65 ILCS 5/3.1-10-5(a) (West 2008) to 10 ILCS 5/3-1 (West 2008). More importantly, as the majority agrees, the Municipal Code expressly relies on the Election Code to define “qualifiedelector.” Specifi cally, section 3.1-10-5(a) of the Municipal Code states that a candidate for municipal office must be a qualified elector and have resided in the municipality at least

one year next preceding the election. 65 ILCS 5/3.1-10-5(a) (West 2008). Consequently, the reader must look at section 3 -1 of th e Election Code to determine what constitutes a qualified elector. Section 3-1 then informs the reader that a qualified electorNo. 1-11-0033

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is a person who “has resided in” Illinois and the election district 30 days next precedin g the election. 10 ILCS 5/3-1 (West 2008). Furthermore, section 3-2(a) of the Election Code informs the reader that a “permanent abode is necessary to constitute a residence within the meaning of Section 3-1.” 10 ILCS 5/3-2(a) (West 2008). This cross-reference in section 3-2(a), which discusses “residence,” to section 3-1, which discusses how long a person “had residedin” an election district, in order to define the term residence se riou sly undermines the majority’s position that the meaning attri buted to the term “residence” does not inform a court’s construction of the phrase “has resided in.” Section 3-2(a) clearly indicates that “residence” defines the term“has resided in” in se ct ion 3-1. While section 3-2(a) is perhaps limited to the definition of a “qualified elector” as used in section 3.1-10-5(a) of the Municipal Code, “residence” is used to define “has resided in.” As stated by the majority, the basic rules of statutory interpretation require that the same words used within a statute should be given the same meaning unless the context dictates otherwise. McMahan , 183 Ill. 2d at 513. Nothing in the text or context of these statutes distinguishes “has resided in” as used to define a “qualified elector” from “has resided in” as used to define the length of time a candidate must have been r esident in order to run for office. Moreover, if theNo. 1-11-0033

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legislature had int ended the phrase “has resided in” to mean actually lived in , as the majority proposes, then the legislature surelywould have chosen to use the more innocuous word liverather than the verb reside and the noun residence, which are charged with legal implications. Moran do es n ot support the majority’s proposition that the supreme court has indicat ed voter and candidate residency requirements might diverge. In Moran , the supreme court rejected the arguments of the plaintiff, who challenged the validity of the village’s incorporation and the election of its new officers. Moran , 20 Ill. 2d 95. The plaintiff complained that several people who had voted for the new officers were not qualified electors because, according to the pla intiff, Illinois public policy and legislative intent must have required the electors to have resided in the area for more than 3 0 days where the statute required a municipal officer to have re sided in the area at least one year next preceding his election. Moran , 20 Ill. 2d at 104. The supreme court rejected the plaintiff’s argument, noting a st atutorydifferentiation between an elector and a candidat e fo r municipal office. Moran , 20 Ill. 2d at 104. That distinction, however, was not based upon the nature of their residency but, rather, on the length of time necessary to establ ish their residency. Specifically, the relevant statute defined “anNo. 1-11-0033

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‘elector’ as one who has resided in the State for one year, in the countyfor 90 days and in the area or precinct for 30 days” whereas the candidate was required to have “resided in the area at leas t

one year next preceding his election or appointment. ” Id . The majority’s attempt to read th is temporal distinction between candidates and electors as some sort of indication from the supreme court that the majority may embark on a revis ion of Illinois law concerning candidate residency requirements is indefensible. The majority attempts to support its creation of a completely

newcandidate residency standard wi th an exhaustive (or, rather, exhausting) discussion of section 3.1-10-5(d) of the Municipal Code regarding the military exception. The candidate here was not in the military and did not attempt to claim an exemption under section 3.1-10-5(d). Nevertheless, while the majority spends five pages of its opinion on a subsection of the Municipal Code that has no applicability to the present case, the majority does not write

a single sentence explaining how it defines “actually resided in.” It is patently clear that t he ma jority fails to even attempt to define its newlydiscovered standard because it is a figment of the majority’s imagination. Howmany days maya person stay away from his home before the majoritywoulddecide he no longer “actuallyresides” in it? Would the majority have us pick a number out of a hat? A standardwhichNo. 1-11-0033

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cannot be defined cannot be applied . If th e majority had picked

even an arbitrary number of days that v ot ers need not sleep in their own beds before they violated this new arbitrary sta ndard, then at least we wouldbe able to applythis new standard. Should

a court con sider just the number of days a voter or candidate is absent or are there other relevant factors under the new standard? Apparently, only the majority knows but, for some reason, fails to share it with those charged to a bide by it if they want to be a candidate for municipal office. The majority’s promulgation of a new undefined standard cuts off the various boards of elections and circuit courts of this State from over 100 years of precedent. Clearly, the majority must posit the existence of a new standard in order to avoid the application of the manifest weight sta ndard to the Board’s fact findings and application of the clearly erroneous standard to the Board’s ruling that the candidate did not intend to abandon his residence. The m aj ority says, as it must, that it accepts the Board’s findings of fact. Therefore the majority must fault the Boardfor failing to apply as the correct legal principle of candidate residency a standard that the majority just conjuredout of thin air. If the majority truly believes that “actually resides” is the correct standard to apply, the majority should remand this case back to the Board for a further hearing. Merely s ayin g theNo. 1-11-0033

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candidate “unquestionably does not satisfy” its newly-minted standard, when the ink of its creation ha s barely dried on the paper, canno t be a proper substitution for providing a hearing. The majority’s application of a new standard in the instant case shows a careless disregard for the law shortly before an election for the office of mayor in a major city. One can har dly imagine howfuture potential candidates for m unicipal office in Illinois will n avig ate the maze invented by the majority’s amorphous standard. The majority’s new standard is ill-reasoned and unfair to the candidate, v ot ers, and those of us who are charged with applying the law. While I strongly believe that the m ajorit y’s holding is completelyerroneous, if the majority were to apply it only prospectively, rather than retroactively to this candidate, there wouldbe sufficient time for our supreme court to thoughtfully review it. The majority’s decision disenfranchises not just this particular candidate, but every voter in Chicago who would consider voting for him. Well-settled law does not countenance such a result. Finally, the majority’s decision certainly “involves a question of such importance that it should be decided by the Supreme Court.” Supreme Court Rule 316 (Official Reports Advance Sheet No. 26 (Dec. 20, 2006), R. 316, eff. Dec. 6, 20 06. Consequently, I believe this panel should certify this case underNo. 1-11-0033

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Supreme Court Rule 316, which would permit review of the majority’s decision in t he most expeditious manner possible. The majority, however, has refused to certify this case under Rule 31 6. As of the writing of this dissent, ther e is les s than one month before the election and even less time for absentee ballots to be mailed out and returned. An opinion of such wide-ranging import and not based on established law but, rather, on the whims of two judges, should not be allowed to stand. For the reasons stated, I would affirm the judgment of the circuit court, which confirmed the decision of the Board.