WGN / Medill Watchdog investigating where judges live: What are the applicable residency requirements?

I'm providing links to Part Two of WGN's "Judging the Judges" series, "It Matters Where Judges Live," and Part Three of that series, "Knock, knock, your honor, are you illegally living here?"

I'm also providing links to the corresponding posts on the Medill Watchdog site ("Moving out: Subcircuit judges relocate, foiling geographic diversity" and "Questions of residence: Records raise questions about residences of some subcircuit judges").

Mr. Suppelsa and his fellow investigators are raising questions about whether certain judges are complying with the law.

Let's look a little more closely at the applicable laws.

Article 6, Section 11 of the 1970 Illinois Constitution states:

No person shall be eligible to be a Judge or Associate Judge unless he is a United States citizen, a licensed attorney-at-law of this State, and a resident of the unit which selects him. No change in the boundaries of a unit shall affect the tenure in office of a Judge or Associate Judge incumbent at the time of such change.

Article 6, Section 12 states, in pertinent part (from §12(a)):

A person eligible for the office of Judge may cause his name to appear on the ballot as a candidate for Judge at the primary and at the general or judicial elections by submitting petitions. The General Assembly shall prescribe by law the requirements for petitions.

In Goodman v. Ward, 241 Ill.2d 398, 412, 948 N.E.2d 580 (2011)the Illinois Supreme Court explained that a person wishing to run for judge must first be "eligible" for that office before that person can get his or her name on the ballot. The Goodman court went on to state (Id. at 412-13):

Giving sections 11 and 12 their plain and ordinary meaning, it is therefore clear that under our Constitution, candidates for the office of circuit, appellate or supreme court judge must be residents of the unit from which they seek election before they may cause their names to appear on the ballot for the primary election. See Maddux v. Blagojevich, 233 Ill. 2d 508, 514 n.3, 911 N.E.2d 979, 331 Ill. Dec. 749 (2009). If they are not residents, they are simply ineligible to run. If they attempt to run when they do not meet the constitutionally mandated residency requirement and manage to win the election, they will be subject to removal from office by the Illinois Courts Commission. In re Golniewicz, 4 Ill. Cts. Com. 9, 39-40 (2004).

So, there's no argument, really, that one must be a resident of a subcircuit in order to run for judge from that subcircuit.

Who is a resident? How is a candidate's residency determined?

Well, the Illinois Supreme Court recently had occasion to address that issue in Maksym v. Board of Election Commissioners of the City of Chicago, 242 Ill.2d 303, 950 N.E.2d 1051 (2011). This is the decision that permitted Rahm Emmanuel to run for Mayor of the City of Chicago.

In Maksym, the Supreme Court stated (242 Ill.2d at 326), "[I]n 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."

Both the establishment of a new residence and the abandonment of a prior residence may be of some import to the Judicial Inquiry Board and, ultimately, to the Illinois Courts Commission should there be any official investigation of the charges leveled by WGN against certain of the judges it has named. (Presumably, one could not establish a new residence -- say, within the boundaries of a particular subcircuit -- without also abandoning the prior residence.)

It seems clear that -- if the allegations of the WGN and Medill Watchdog investigators are well-founded -- some of the judges named may have some potentially serious problems.

But WGN and Medill Watchdog did not stop at naming judges who may have misrepresented their true residence when seeking judicial office. They also name several judges who moved from the subcircuits from which they were elected.

Some moved before they were retained in office (i.e., during their initial six year term); others moved after.

That distinction may be very important.

Mr. Suppelsa did mention that the Illinois Attorney General issued an opinion in 2006 (No. 06-005) stating that subcircuit judges could move from the subcircuit after being retained in office. That's because judges are not retained in office by only the voters in their subcircuit; instead, they must face a countywide yes or no vote. The Legislature did not intend that subcircuit judges would be permitted to move after their first retention election, but the Attorney General concluded that, after facing all of Cook County's voters in a retention election, the "unit" electing the judge was different than it was originally and the newly retained judge would be free to relocate anywhere within that new, larger unit (in our case, anywhere within Cook County).

I can state with some certainty what the Legislature intended because I know that what is now numbered as §2f(e) of the Circuit Courts Act, 705 ILCS 35/2f(e), originally enacted 20+ years ago, when the Cook County subcircuits were first set up, provides expressly, "A resident judge elected from a subcircuit shall continue to reside in that subcircuit as long as he or she holds that office." Indeed, after the Attorney General issued Op. No. 05-006, the Legislature added another sentence to §2f(e): "A resident judge elected from a subcircuit after January 1, 2008, must retain residency as a registered voter in the subcircuit to run for retention from the circuit at large thereafter."

But just because the Legislature passes a law does not mean that the law passes constitutional muster. There is a potential problem with whether §2f(e) is constitutional.

The problem is that, in Thies v. State Board of Elections, 124 Ill.2d 317, 529 N.E.2d 565 (1988), the Illinois Supreme Court stated that the Legislature is without power to impose requirements for judicial office greater than those imposed by the Illinois Constitution. In that case, the Legislature had created a judgeship for Champaign County, insisting that anyone running for that position be a resident of Champaign County, but requiring also that the judge would be elected by all the voters in the Sixth Circuit -- which included counties other than Champaign. In other words, a duly licensed attorney residing in the unit from which the judge was to be elected was ineligible under the statute unless he or she lived in Champaign County. This, the Supreme Court said, the Legislature could not do.

In her 2006 opinion, the Attorney General determined that the reasoning of the Thies court would likely apply in the case of a judge moving from a subcircuit after being retained in office; after a judge is retained by the entire county, the unit selecting that judge has changed.

As for a judge who may have truthfully resided within the subcircuit at the time he or she was elected, but who moved from the subcircuit before being retained, the question arises whether that move would render the judge ineligible to continue in office because such a judge would then no longer be, in the words of the Illinois Constitution, "a resident of the unit which selects him."

The Illinois Courts Commission has yet to consider a case involving a judge who moved from a subcircuit following election from that subcircuit. The Golniewicz case concerned the judge's misrepresentation of his true residence at the time he first ran (making him ineligible in the first place). The Goodman case in the Illinois Supreme Court removed a would-be judicial candidate from the ballot before the election took place. WGN and Medill Watchdog may have identified some possible problems for certain judges. However, for other judges named so far, unless there are other misrepresentations that put them on the wrong side of the Cannons of Judicial Ethics, their relocation (at least following retention in office) may not have been what the Legislature wanted, but may be permitted by the law.