Countdown to Rahmageddon: Tongue-Lashed By the State Supreme Court

By Chuck Sudo in News on Jan 28, 2011 3:08PM

Throughout this saga regarding Rahm Emanuel's residency, the question has been a matter of interpretation of the law. Emanuel and his attorneys argued that, even though he rented out his Ravenswood home, he still intended to move back; still maintained an Illinois drivers license; still had a checking account; still paid property taxes on the home and still maintained his voter registration in Illinois. Those objecting to Emanuel's candidacy argued for a narrower, more orthodox interpretation of the residency rule: he didn't live there for the past year, so he can't run. Intent versus actuality. Obviously, the state Supreme Court sided with Emanuel yesterday and put him back on the ballot. And that's as it should be. That wasn't surprising. What was was the majority opinion authored by Justice Bob Thomas, which was dismissive of the Illinois Appellate Court's decision Monday to remove Emanuel from the ballot. It was an unctuous and rude opinion that caused Justices Anne Burke and Charles Freeman to write their own special opinion on the case, while still siding for Emanuel. Speaking of Burke, so much for that perceived conflict of interest, eh?

The law the Court cited in placing Emanuel back on the ballot was Smith v. People ex rel. Frisbie, 44 Ill. 16 (1867), a quo warranto action that was brought to remove a sitting governor from his office because he hadn't established residency for the required amount of time prior to his appointment. Specifically, those who filed the quo warranto said that Smith had moved to Tennessee for a eight-month stretch and came back to Illinois. Smith showed intent to return and that the move was not permanent. Thomas, in his opinion, writes:

"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. See No. 1-11-0033, slip op. at 6-8 (dismissing the foregoing authority in its entirety). 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. Both provide that, in order to be eligible for public office, a person must reside in the relevant jurisdiction for some period 'next preceding the election or appointment.' And in both cases, the sole issue presented is whether the person seeking to hold the office in question had abandoned his Illinois residency by virtue of an extended relocation to another part of the country. In answering that question in Smith, 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. The court then examined the surrounding circumstances, including both Smith’s words and Smith’s actions, to determine whether Smith had abandoned his Illinois residency. Ultimately, the court concluded that he had not. In every relevant way, the analysis that this court employed in Smith is the very analysis that the hearing officer, the Board, and the circuit court below employed, and they were correct in doing so. Smith has never been overruled, and it is directly on point."

Thomas also chided the Appellate Court for what he called "painting on a
blank canvas" with regard to its majority decision to toss Emanuel from the ballot. It went on and on for pages.

Burke and Freeman, meanwhile, offered their own reasons for siding with Emanuel's argument, giving back to Thomas and the majority as pointedly as Thomas took the Appellate Court to the woodshed, with the not-so-slight inference that Thomas and tha majority were reading the newspapers before making their decision.

The result in this case is in no way as clear-cut as the majority makes it out to be. The majority states that, in Illinois, “the legal meaning of residence has been settled for well over 100 years, not only in the very context that section 3.1-10-5(a) concerns (see Smith, 44 Ill. at 23-25), but in virtually every other setting in which this court has construed a legal residency requirement.” Slip op. at 13-14. This is simply not true. As this court has noted, the legal term “residence” does not “have a fixed and constant meaning” Fagiano v. Police Board, 98 Ill. 2d 277, 282 (1983)); see also Restatement of the Law, Second, Conflict of Laws §11 (1988 Revisions) (“Residence is an ambiguous word whose meaning in a legal phrase must be determined in each case”); W. Reese and R. Green, That Elusive Word, ‘Residence,’ 6 Vand. L. Rev. 561, 580 (1953) (residence is “one of the most nebulous terms in the legal dictionary”); Willenbrock v. Rogers, 255 F.2d 236, 237 (1958) (“The words ‘resident’ and ‘residence’ have no precise legal meaning although they are favorite words of legislators.”). The majority bases its decision entirely on Smith v. People ex rel. Frisbie, 44 Ill. 16 (1867). As the appellate court correctly noted, the outcome in that decision turned solely on intent, a principle that is consistent with the legal concept of domicile. See Hayes v. Hayes, 74 Ill. 312 (1874). Unfortunately, Smith was not this court’s last pronouncement on the issue. Later decisions, namely Pope v. Board of Election Commissioners, 370 Ill. 196 (1938), Park v. Hood, 374 Ill. 36 (1940), and Clark v. Quick, 377 Ill. 424 (1941), each define residence in terms of domicile plus a permanent abode. In other words, under these cases, intent alone is not enough to establish residency.

Suffice it to say, therefore, that this court has not always spoken clearly on what is meant by residency, and the majority should acknowledge this fact. This is why both sides in this dispute can contend that their respective positions are supported by decades of precedent. Indeed, contrary to the majority’s assertions, the only thing that is well established in this case is the confusion that has existed on this subject. The majority today now makes clear that residency for all purposes is the equivalent of domicile. The majority, therefore, should overrule those portions of Pope, Park, and Clark which hold to the contrary. It is for this reason that the tone taken by the majority today is unfortunate. Because our own case law was, until today, unclear, it is unfair of the majority to state that the appellate court majority “toss[ed] out 150 years of settled residency law” (slip op. at 10), adopted a “previously unheard-of test for residency” (slip op. 17), or was engaged in a “mysterious” analysis (slip op. at 16). In order to properly address the parties’ arguments, the appellate court had to reconcile this court’s conflicting pronouncements on the question of residency. That court did the best it could without the benefit of a supreme court opinion which clarified the standards. By refusing to acknowledge the role our own case law has played in creating the dispute before us, the majority unwittingly adds credence to the inflammatory statements contained in the dissenting opinion below. The dissenting justice below accused the appellate court majority of engaging in a “pure flight of fancy” (No. 1-11-0033, slip op. at 35, Lampkin, J., dissenting)), of “conjur[ing]” its result “out of thin air” (id. at 40), and of having a “careless disregard for the law” (id. at 41). The dissenting justice also stated that the result was a “figment of the majority’s imagination”(id. at 39), based on the “whims of two judges” (id. at 42). 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. 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. The majority and dissenting appellate court opinions illustrate the confusion that has long existed on this issue, which is the very reason for the difficulty in discerning what the General Assembly meant when it used the words “has resided in” in section 3.1-10-5(a) of the Illinois Municipal Code (65 ILCS 5/3.1-10-5(a) (West 2008)). There is no reason for the majority here to cast aspersions on the appellate court’s motivations."