suntimes
SCATTERED 
Weather Updates

Read the Supreme Court ruling

Updated: September 24, 2012 6:25AM



Excerpts from the state Supreme Court ruling written by Justice Bob Thomas, throwing out the Appellate Court decision and affirming the Chicago Board of Election Commissioners’ ruling:

* * *

First, to establish residency, two elements are required: (1) physical presence, and (2) an intent to remain in that place as a permanent home. … Second, once residency is established, the test is no longer physical presence but rather abandonment. Indeed, once a person has established residence, he or she can be physically absent from that residence for months or even years without having abandoned it

* * *

By way of final thought on this question, we wish to point out that, while this court’s traditional definition of residence may be

plugged into the Municipal Code without creating any ambiguity or confusion, the appellate court’s new and undefined standard promises

just the opposite. Although adopting a previously unheard-of test for residency that would have applied to all future municipal elections, the court made no attempt to explain what its standard means. The only hint given by the appellate court is that, whatever its standard means, this candidate did not satisfy it. The appellate court never explained what it meant by “actually reside” or “actually live.”

* * *

The difficulty of applying such a standard is immediately apparent. For instance, consider a Chicago resident who owns a second home

in Florida and typically spends a month there every winter. Where is that person “actually living” or “actually residing” during the month

when he or she is at the second home? Is such a person ineligible for municipal office unless he or she sleeps at the Chicago house every

night for the year preceding the election? Is there a time limit with this test? Would a week at the second home be short enough but two

months be too long? What about a Chicago resident whose job requires him to spend extended periods of time out of the country every year? Where is such a person “actually living” or “actually residing” when out of the country?

* * *

If a Representative from a Chicago congressional district owns a condominium in Washington, where is that representative “actually living” or “actually residing” when Congress is in session? Under the majority’s test, would the candidate have been ineligible to run for mayor even during the time he was serving in Congress?

* * *

Thus, in assessing whether the candidate has established residency, the two required elements are: (1) physical presence, and (2) an intent to remain in that place as a permanent home. Once residency is established, the test is no longer physical presence but rather abandonment, the presumption is that residency continues, and the burden of proof is on the contesting party to show that residency has been abandoned. Both the establishment and abandonment of a residence is largely a question of intent, and while intent is shown primarily from a candidate’s acts, a candidate is absolutely competent to testify as to his intention, though such testimony is not necessarily conclusive.

* * *

This is a situation in which, not only did the candidate testify that his intent was not to abandon his Chicago residence, his acts fully

support and confirm that intent. The candidate told several friends that he intended to serve as Chief of Staff for no more than 18 months or

two years before returning to Chicago.

The candidate has continued to own and pay property taxes on the Chicago residence while only renting in Washington, D.C. As set forth above, the ending dates for the [Washington, D.C.] House lease and the Hermitage House lease were identical and coincided with the end of the school year of the candidate’s children. This supports an inference that the candidate intended to move back into the Hermitage House when the [Washington, D.C.] House lease ended.

The candidate has continuously maintained an Illinois driver’s license setting forth the Hermitage House as his address and has never obtained a Washington, D.C., driver’s license. The candidate has continued to register his car at the Hermitage House address. The candidate registered to vote from the Hermitage House address in 1999 and has continuously voted from that address in every election through February 2010.

Up and through 2010, the candidate did his banking in Chicago and had the Hermitage House address printed on his personal checks. The candidate left many personal items in the Hermitage House, including his bed, two

televisions, a stereo system, a piano, and over 100 boxes of personal possessions.

Although the candidate paid income taxes to the government of the District of Columbia, the candidate continued to pay state income tax in Illinois. The objectors claim that, once a person rents out a residence, he or she has abandoned it as a matter of law. This is obviously incorrect, as it is directly contrary to Smith.

* * *

So there will be no mistake, let us be entirely clear. This court’s decision is based on the following and only on the following: (1) what

it means to be a resident for election purposes was clearly established long ago, and Illinois law has been consistent on the matter since at

least the 19th Century; (2) the novel standard adopted by the appellate court majority is without any foundation in Illinois law; (3) the

Board’s factual findings were not against the manifest weight of the evidence; and (4) the Board’s decision was not clearly erroneous.



© 2014 Sun-Times Media, LLC. All rights reserved. This material may not be copied or distributed without permission. For more information about reprints and permissions, visit www.suntimesreprints.com. To order a reprint of this article, click here.