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About that dissent… Um, I mean, that “concurrence”

Friday, Jan 28, 2011 - Posted by Rich Miller

* Supreme Court Justices Freeman and Burke voted with the majority, but wrote what otherwise looks like a stinging dissent. Among other things, they claimed that the Rahm Emanuel residency ruling opens up a big can of worms, including for city workers forced to reside in Chicago

Because the court holds that residency has one settled meaning, and that meaning rests on a person’s intent, today’s decision will have implications for residency requirements for in-state tuition, residency requirements for municipal employees such as police officers and firefighters, residency requirements for school districts and other similar situations. This court should be prepared to address those issues as firmly and expeditiously as we have done today.

Does it? Rushed decisions in the heat of the moment can most certainly have unintended consequences. The Supremes pulled a mini Bush v. Gore at the tail end of their opinion yesterday by saying that this opinion should not be construed to have any impact on anything other than the topic at hand…

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.

Former Gov. Jim Thompson was right about the Rahm residency case this week, and he’s probably right about this topic as well

“City employees do not have a constitutional right to a city job, so the city can make reasonable rules and regulations about where their employees should live,” [said Thompson].

* The two justices also complained about the tone of yesterday’s ruling, the appellate dissent and resulting Chicago newspaper editorials

The dissenting justice below accused the appellate court majority of engaging in a “pure flight of fancy”… of “conjur[ing]” its result “out of thin air”… and of having a “careless disregard for the law.” The dissenting justice also stated that the result was a “figment of the majority’s imagination”, based on the “whims of two judges. In other words, the dissenting justice accused the majority of basing its decision on something other than the law.

When the appellate court’s decision was announced, these accusations were repeatedly emphasized in the media (see, e.g., Judicial Arrogance, Chicago Tribune, Jan. 25, 2011, at 14; Rahm Ruling a Disservice to Voters, Chicago Sun-Times, Jan. 25, 2011, at 21), thereby fueling the perception that the appellate court’s decision was, in fact, based on extrajudicial considerations. The tone taken by the majority today, and the refusal to acknowledge conflicting case law, unfairly perpetuates that notion.

The appellate dissent and the majority Supreme Court opinion were both, indeed, quite harsh. While unusual, it’s not unprecedented. Take a look at Justice Karmeier’s dissent in the medical malpractice ruling a year or two ago.

And Justice Thomas, who wrote the majority opinion, may still be enraged that his former team lost the NFC championship game last Sunday [/snark].

* But the concurring justices are a bit light on their own reasoning

Rather, we 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.” For that reason alone, we join in the judgment of the majority.

But why do they say “no”? No reason supplied. Weird.

* Roundup…

* 2 justices to majority: pipe down

* Court Allows Emanuel on Ballot for Chicago Mayor

* Supreme Court Rules in Favor of Emanuel

* Rahm Emanuel stays on Chicago ballot

* Rahm’s Opponents Weigh in on Supreme Court Decision

* Brown: Ballot battle turned Rahm into sympathetic figure

* CST Editorial: Ruling a victory for democracy

* Tribune editorial: And now, the election


  1. - Anonymous - Friday, Jan 28, 11 @ 10:36 am:

    Rich, this post was very politely phrased in its questioning of Justices Burke and Freeman.

    The holes in their reasoning, and their defensiveness about criticism of judges, could almost make one leap to question their legal ability and/or motivation, couldn’t it?

    And thanks also for pointing out the similarity to Bush v. Gore.

    The old maxim is “hard cases make bad law.” It’s also true that political cases make for unseemly opinions.

  2. - wordslinger - Friday, Jan 28, 11 @ 10:59 am:

    Justice Heiple, certainly, could peel the paint off the walls.

    Still, for this layman, the harsh tones of the appellate dissent and the Supremes’ majority opinion are striking.

    I can’t help but think, at the very least, they were meant as an indictment of the competence of the two appellate justices who issued the opinion in question. At the very worst, they can be interpreted as implying something sinister.

    Only the judges know for sure exactly what they meant to convey — but we can know for sure they meant to sting, badly.

  3. - wordonthestreet - Friday, Jan 28, 11 @ 11:00 am:

    As I’ve been away from Chicago politics for quite a while, I’m coming up blank on why the two appellate justices voted the way they did… can someone enlighten me? (For some reason I assume it has something to do with politics rather than an unbiased application of law.)

  4. - wordonthestreet - Friday, Jan 28, 11 @ 11:02 am:

    BTW… someone has referred to this Supreme decision as a “bench slap”.

  5. - How Ironic - Friday, Jan 28, 11 @ 11:05 am:

    @ Wordonthestreet.

    While the two may have disagreed with the tone of the ruling, I think they voted the way they did because they didn’t want ANY question as to where the law stood on the issue.

    Very difficult to argue with a unanimous ruling.

  6. - Red Ranger - Friday, Jan 28, 11 @ 11:05 am:

    I’m not so sure that city cops and teachers will be fleeing to the burbs based on this opinion. Remember, the majority opinion placed a lot of emphasis on looking at the actions of the person leaving in order to determine their intent. So while a city worker could “claim” that he or shes always intended to return to their home in Chicago, if their actions show otherwise, this opionion does not help them.

  7. - MrJM - Friday, Jan 28, 11 @ 11:18 am:

    Is it worth noting that when Robert Thomas took the reigns as Chief Justice of the Illinois Supreme Court, he declared it his mission to improve civility between and among lawyers, their clients and judges in Illinois? And to that end, he initiated the Supreme Court Commission on Professionalism that was established by the Court in 2005?

    Maybe not. But in any case, I’d love to be a fly on the wall that Commission’s next meeting.

    – MrJM

  8. - 10th Voter - Friday, Jan 28, 11 @ 11:21 am:

    Is there anything stopping a police officer, firefighter, or teacher from registering their drivers license to an apartment they own in the city but sleeping in a house in the suburbs with their family. Who would know?

  9. - Responsa - Friday, Jan 28, 11 @ 11:55 am:

    ==Is there anything stopping==

    I dunno. Not having the money to pay for 2 “residences” maybe? That, and their own honor.

  10. - Adobe - Friday, Jan 28, 11 @ 12:07 pm:

    Rushed decisions

    on the notion of being rushed……….
    “Does a person lose his permanent abode if the adobe is rented during the relevant residency period?”

  11. - Anonymous - Friday, Jan 28, 11 @ 1:09 pm:

    I like a nice white adobe house with a red tile roof.

  12. - cermak_rd - Friday, Jan 28, 11 @ 1:26 pm:

    I wonder if the harshness was due to the presumption taken by the Appellate court in not staying their order or issuing cert to have the case quickly directed to the IL supreme court.

    I know when Judge Walker overturned prop 8 he immediately stayed his decision knowing that not doing so would irritate the US Supremes (well Kennedy), so maybe it’s the same issue.

  13. - publius - Friday, Jan 28, 11 @ 1:53 pm:

    You can’t argue that the majority ignored and contradicted three supreme court opinions from the 1940s-pope park and clark. They glossed over them because they made the decision more difficult to make. I think there was room to reach the conclusion that the majority did, but the route they took was poorly reasoned. Over the next ten years you will see the courts whittle this decision down so that it will only apply to this specific set of facts.

  14. - Anon - Friday, Jan 28, 11 @ 2:17 pm:

    I’m not sure this will have as far-reaching of an effect as some media outlets, crazed for a good story, are making it seem. Keep in mind that the “intent” issue is an intent to abandon, not an intent to establish. Any person seeking residency status will still have to the burden to prove that he established himself as a resident of the State or of some municipality. Domicile is not residence, so something more than a presence in the political division is required for residency. In Rahm’s case, that factual finding was easy - he indisputably lived in Chicago for an extended period of time and was a Congressman from Chicago for what, eight years? But now I think when you start talking about less clear cases - like people getting their DL to be from the city while they live in the burbs to get a job - you start running into establishment problems, for which this opinion is useless.

  15. - Jasper - Friday, Jan 28, 11 @ 2:34 pm:

    With regard to residency and Chicago city employees. I’ll be doggone, but I thought some dog made that same argument a day or two ago, and somebody who runs things here really dogged him for it claiming they were two completely different issues.

  16. - mokenavince - Friday, Jan 28, 11 @ 2:36 pm:

    Gov.Thompson got it right.Freeman & Burke just proved their nothing but political hacks.We need a merit system of picking judges.Is there anybody
    who figured Burke would vote any other way.Illinois politics is in a shambles.What happened to men like Lincoln,Stevenson,Douglas.We are bankrupt for leadership.Now we get Quinn,MJM,and Collerton.How Sad.

  17. - Yellow Dog Democrat - Friday, Jan 28, 11 @ 2:38 pm:

    @Red Ranger -

    I think a door-to-door canvass would reveal there are MANY city employees who use a family member’s address to maintain their voter registration, receive mail, license their vehicles, file their taxes, and meet other standards of “residency” presented by Emanuel, but put their head on a pillow in the suburbs every night.

    I also think there’s the bigger question of employee morale: little things like a residency requirement that might only chafe a little bit can cause a serious burn if there’s even the slightest appearance that the Boss was held to a different standard.

    My prediction: Chicago’s residency requirement is toast, and if I’m AFSCME, IFT, IEA, Firefighters and the FOP, I’d push to prohibit them statewide.

    No employer should be able to dictate where you live, as a Constitutional matter.

  18. - Anon - Friday, Jan 28, 11 @ 2:49 pm:

    “Is there anything stopping a police officer, firefighter, or teacher from registering their drivers license to an apartment they own in the city but sleeping in a house in the suburbs with their family. Who would know?”

    Yeah. The Inspector General.

  19. - wordslinger - Friday, Jan 28, 11 @ 3:01 pm:

    –State of Illinois? HA! How about the State of Intoxication!?of Illinois? HA! How about the State of Intoxication!?–

    It’s Friday.


  20. - Anon - Friday, Jan 28, 11 @ 3:05 pm:

    “–State of Illinois? HA! How about the State of Intoxication!?of Illinois? HA! How about the State of Intoxication!?–”

    Where did that come from?

Sorry, comments for this post are now closed.

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