* 4:44 pm - I’m hearing the Rahm Emanuel decision is going to be handed down any minute now.
* And, it turns out, I’m not the only one. From the Tribune…
Illinois Supreme Court officials said they will issue a ruling this afternoon on whether Rahm Emanuel can run for Chicago mayor.
The officials said the ruling could be expected at 4:45 p.m.
* 4:46 pm - Maybe not. Just talked with the Supreme Court again. Hang loose, but don’t stray far.
* 4:56 pm - From the Tribune’s Twitter feed…
L Supreme Court Justice Charles Freeman came out and said the Rahm Emanuel opinion would be released this afternoon.
* 5:06 pm - The Supremes have reversed the appellate court ruling. Emanuel is on the ballot. Click here to read the opinion.
* From the opinion…
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. In Smith v. People ex rel.
Frisbie, 44 Ill. 16 (1867), this court was faced with a question
remarkably similar to that which is before us today. Smith, a longtime
resident of Illinois, had been appointed a circuit judge by the governor
of Illinois, and a quo warranto action was brought to remove Smith
from that office on the grounds that he had not been an Illinois
resident “for at least five years next preceding *** his appointment,”
as the Illinois Constitution then required. In support of their action,
the objectors pointed to the fact that Smith had moved with his family
to Tennessee for eight months during the relevant five-year residency
In concluding that Smith’s eight-month sojourn to Tennessee did
not result in an abandonment of his established Illinois residency, this
court explained that, once established, “residence is lost *** by a
union of intention and acts” and that “the intention in many cases will
be inferred from the surrounding circumstances.” Smith, 44 Ill. at 24.
Thus, from April 1867 through January 24 of this year, the
principles governing the question before us were settled. Things
changed, however, when the appellate court below issued its decision
and announced that it was no longer bound by any of the law cited
above, including this court’s decision in Smith, but was instead free to
craft its own original standard for determining a candidate’s residency.
… Thus, our review of the appellate court’s
decision in this case begins not where it should, with an assessment of
whether the court accurately applied established Illinois law to the
particular facts, but with an assessment of whether the appellate court
was justified in tossing out 150 years of settled residency law in favor
of its own preferred standard. We emphatically hold that it was not.
The Smith principles control this case, plain and simple. With the
sole exception of the prescribed time period, the provision at issue in
Smith is identical to one the issue at here.
* This opinion is a true beatdown of the appellate court decision. For instance…
All of that said, and putting aside the appellate court’s conclusion
that Smith is not binding in this case, the appellate court’s residency
analysis remains fundamentally flawed. This is because, even under
traditional principles of statutory analysis, the inevitable conclusion is
that the residency analysis conducted by the hearing officer, the
Board, and the circuit court was proper.
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
[The appellate court’s] reasons for departing from over 100 years of settled
residency law are hardly compelling and deserve only brief attention.
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.” Indeed, as its
discussion of section 3.1–10–5(d) reflects, the entire appellate court
opinion can be read as nothing more than an extended exercise in
question begging, in which the appellate court sets forth the question
to be answered as what it means to “reside” (No. 1–11–0033, slip op.
at 11), and concludes that it means to have “actually resided” (No.
1–11–0033, slip op. at 21).
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? Assuming without deciding that
the appellate court was correct that the government service exception
does not apply to candidates, consider 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
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.
* Emanuel’s intent…
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 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. Indeed, Smith makes clear that
rental is merely one factor to consider in determining abandonment
(Smith, 44 Ill. at 24), and the terms of the rental and the circumstances
surrounding it must be considered.
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. [Bolding added]
* There were no dissents. Two justices (Freeman and Burke) concurred in the result but not the reasoning.