Rahm Emanuel's Back on the Ballot in Chicago -- Here's Why

I've had a chance to take a look at Illinois Supreme Court decision reinstating Rahm Emanuel's right to be a candidate for election to Mayor of Chicago.  It's unanimous as to result, but a 5/2 split on reasons and tone, with a two-justice concurrence chastising the majority for just how strongly they state their disagreement with the Court below.

Indeed, today's majority says, the Illinois Appellate Court decision got this completely, "emphatically" ass-backwards:

Before proceeding to the merits, we wish to emphasize that, until just a few days ago, the governing law on this question had been settled in this State for going on 150 years.

And, later:

Its reasons for departing from over 100 years of settled residency law are hardly compelling and deserve only brief attention.

You get the idea. The Court relies on Smith v. People ex rel. Frisbie, 44 Ill. 16 (1867) (of course!), which established the principle that the answer to whether an extended relocation forms a legal abandonment of one's Illinois residence is determined by "a union of intention and acts.”

First, the Court explains, you have to establish residence, which requires "(1) physical presence, and (2) an intent to remain in that place as a permanent home."  That intent is crucial as well as to whether one's abandoned one's residence.  The Court maintains that "a residence is not lost 'by temporary removal with the intention to return, or even with a conditional intention of acquiring a new residence, but when one abandons his home and takes up his residence in another county or election district,'" which is primarily a test of intent.  Otherwise, the Court explains, who wants this kind of mishegas?

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?...

[C]onsider the example of Representatives in Congress who often spend 4-5 days a week in Washington. 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 [appellate court] majority’s test, would the candidate have been ineligible to run for mayor even during the time he was serving in Congress? The same confusion would arise with respect to State Representatives or State Senators who must spend considerable amounts of time in Springfield. Applying the traditional test of residency to all of the above examples leads to the commonsense conclusion that all would remain Chicago residents even when away. Under the appellate court’s test, considerable doubt would arise as to whether any of these people could meet a residency test that requires one year of “actually living” or “actually residing” in the municipality. Once the practical implications of adopting a standard for residence that means “actually lives” or “actually resides” are considered, one can readily appreciate why such a standard has never been adopted and why the standard used in Illinois has endured for well over a century.

And, so, the Court concludes:

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.

And, as such, the Board of Elections got it completely right, that Emanuel never really left Chicago, and he stays on the ballot.  That whole "business of the United States" exception?  Unnecessary to resolving this.

Justices Freeman and Burke concur separately, and on other grounds.  Basically, they just want to say this: "yes, Rahm's a Chicagoan, but the case law's not that clear, and so you shouldn't be so cocky in the way you smack down the appellate court."  Or:

Spirited debate plays an essential role in legal discourse. But the majority opinion here and the appellate dissent cross the line. Inflammatory accusations serve only to damage the integrity of the judiciary and lessen the trust which the public places in judicial opinions. The present case, one of obvious  public interest, raises difficult questions regarding the  legal concept of residency about which reasonable minds may differ. Indeed, as noted above, the meaning of the term “residency” has puzzled attorneys and judges since the term first appeared in the statute books.

And they don't purport to answer it.  Instead, they just say this, without more:

[W]e would answer the narrow question that was actually raised by the objectors in this case: Does a person lose his permanent abode if the adobe is rented during the relevant residency period? To that question we answer “no.”

The election is February 22.

Daily Kos / By Adam B. | Sourced from

Posted at January 28, 2011, 3:39am

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