Rahm Emanuel Back on Ballot , IL Supreme Court Agrees to Review Ruling

Bump and Update: The Illinois Supreme Court has agreed to hear the case on an expedited basis, without oral argument, using the briefs filed in the lower court.

Bump and Update: Rahm gets his stay, he's back on the ballot for now.

Bump and Update: Rahm Emanuel filed his petition with the Illinois Supreme Court today. He makes six arguments, and relies in part on People ex rel. Madigan v. Baumgartner, the case I discuss below. You can read the petition here. No word yet on whether the Court will agree to hear the case or grant the stay he requested yesterday. [More...]

In a 2 to 1 state appeals court decision, an Illinois appeals court today kicked Rahm Emanuel off the ballot for Chicago Mayor. The opinion is here. Rahm has already filed for an emergency stay in the Illinois Supreme Court and says he's confident he will prevail on an appeal to that court.

While I don't care to see Rahm get elected Mayor of Chicago, I think the appeals court got it wrong. One thing I remember from law school (domestic relations class) is the difference between being a resident and a docimile of a place. We were taught: a residence is where you hang your hat and a domicile is where you hang your heart. The court in Rahm's case acknowledges that residency and domocile are not the same thing, but it says residency is your permanent abode while domicile is where you intend to make your home. But I think it twists the case law.

From People ex rel. Madigan v. Baumgartner, 355 Ill. App. 3d 842, 847-848 (Ill. App. Ct. 4th Dist. 2005)(cited by the court but not referring to these quotes):

"Where a person leaves his residence and goes to another place, even if it be another state, with an intention to return to his former abode, or with only a conditional intention of acquiring a new residence, he does not lose his former residence so long as his intention remains conditional." Pope v. Board of Election Commissioners, 370 Ill. 196, 201, 18 N.E.2d 214, 216 (1938). To change residence, "there must be, both in fact and intention, an abandonment of the former residence and a new domicile acquired by actual residence, coupled with the intention to make it a permanent home." Welsh v. Shumway, 232 Ill. 54, 77, 83 N.E. 549, 559 (1907).

....Because a person may only have one residence for voting purposes, when a person has established a physical presence in two locations, he must make a decision about which location he intends to make his permanent residence. Implicit in the residency requirement of intention to make a place a person's permanent home is the ability of that person to choose whether he wishes to exercise the rights afforded to a permanent resident in his new location or if he wishes to continue his residence at the home he has temporarily left. As long as he does not seek to "exercise the rights of property or of citizenship incident to or resulting from permanent residence" at his new location but instead continues to exercise those rights, including the right to vote, at his original location, he remains a resident at the original location.

The Court states Rahm continued to keep his driver's license, his voting registration, even the address on his personal checks at his Chicago address. So how is he not a resident of Chicago?

I have no idea what the Illinois Supreme Court will do, but it needs to decide fast because absentee ballots are about ready to hit the printers.

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    It also seems to me (5.00 / 1) (#1)
    by andgarden on Mon Jan 24, 2011 at 09:23:05 PM EST
    a highly inequitable result.

    And bad public policy. (none / 0) (#9)
    by Peter G on Mon Jan 24, 2011 at 10:29:10 PM EST
    How can the law be that you lose your domicile by agreeing to move to Washington to accept an appointed or elected federal government position that by its nature is for a limited period of time? That rule creates a disincentive to perform federal public service.  I'm almost inclined to say the Illinois ruling violates the Supremacy Clause.

    I haven't read the opinion (none / 0) (#10)
    by andgarden on Mon Jan 24, 2011 at 10:32:28 PM EST
    but I wonder whether the same reasoning would have applied to Congressman Emanuel?

    Stupid goo-goo rules like this really don't appeal to me. And to be honest, I can't see the purpose. If Chicago voters want to elect a mayor from Mars, by all rights they should be able to.


    But his Chicago address (none / 0) (#2)
    by Zorba on Mon Jan 24, 2011 at 09:33:53 PM EST
    was leased out to another person (who was also registered to vote at the same address).  I think Rahm was trying to save some money.  If he had rented a cheap apartment in Chicago that was not being used by anyone else (and maybe popped into it a couple of times a year), he would have a much better case for proving residency.  I would also like to know if he filed and paid Illinois State Income Tax for the relevant time.  This will be an interesting case for the Illinois Supreme Court.

    he paid taxes both (none / 0) (#3)
    by Jeralyn on Mon Jan 24, 2011 at 09:45:46 PM EST
    in DC and Illinois. The Wall St Journal article has more.

    He and his family left over 100 boxes of their personal stuff in the house. His wife went back three times so the piano could get tuned. (A little weird, I know.)


    If he paid (none / 0) (#4)
    by Zorba on Mon Jan 24, 2011 at 09:49:29 PM EST
    taxes in Illinois, then I would think that he's a resident.  Either that, or Illinois owes him those taxes back.

    Not necessarily (none / 0) (#21)
    by jbindc on Tue Jan 25, 2011 at 10:40:14 AM EST
    You could be required to pay taxes wherever you earn money.  See professional athletes, many of whom have to fill out multiple tax forms since they "earn" money in multiple cities when they go play there.

    Taxes have nothing to do with residency.


    I should clarify (none / 0) (#22)
    by jbindc on Tue Jan 25, 2011 at 10:44:53 AM EST
    Residency isn't the ONLY thing that determines taxes.

    Sounds to me, then, (none / 0) (#46)
    by Zorba on Tue Jan 25, 2011 at 07:36:36 PM EST
    as though he should have kept a small pied-à-terre in Chicago and gone back there frequently to stay.  Many week-ends, at least.

    If he earned income in IL (none / 0) (#43)
    by MO Blue on Tue Jan 25, 2011 at 06:33:19 PM EST
    (i.e. on the rental of his property there), then he is liable for IL taxes on that income regardless of where he resides.

    Property taxes. (none / 0) (#39)
    by jpe on Tue Jan 25, 2011 at 05:39:39 PM EST
    It looks like he paid property taxes in IL, which just tells us he owns property there.  It doesn't tell us anything about his domicile.

    You're right, he did pay income tax to IL. (none / 0) (#40)
    by jpe on Tue Jan 25, 2011 at 05:41:19 PM EST
    The decision mentions that, but the WSJ article didn't.

    Rahm is a resident of (none / 0) (#5)
    by mjames on Mon Jan 24, 2011 at 10:03:24 PM EST
    Illinois for voting purposes under the Election Code. The court concedes that point. He votes in Illinois; he pays taxes in Illinois.

    However, the Municipal Code has two requirements for running for office in a given municipality: (1) eligible to vote under the Election Code (which Rahm certainly is) and (2) "residing in" the municipality for one year prior to running for office. Since the residency requirement under the Election Code is already met, the reasoning goes, the additional one-year requirement means something more - specifically, actually living there. Why else have the extra requirement?

    Legally, I find the reasoning persuasive. I don't think the Illinois Supreme Court will go along. Too bad.  

    I'm wondering if maybe Rahm (none / 0) (#6)
    by andgarden on Mon Jan 24, 2011 at 10:11:08 PM EST
    can conjure up a 14th Amendment reason that any such distinction should not be applied to him.

    He already has, (none / 0) (#7)
    by mjames on Mon Jan 24, 2011 at 10:17:50 PM EST
    I'm sure.

    I myself find a sort of quaint logic in the notion that running for mayor of a city requires actually living in the city for a year before running, not just having a residence there. That is, a politician's being allowed to run for office requires a bit more involvement with the area than an individual's being allowed to vote.

    They had their appeal all written and ready to go - and I suspect they were expecting this and are expecting (wink wink) ultimate victory. We're talking about a lot of money invested in this gig.


    I have a different quaint notion (none / 0) (#8)
    by andgarden on Mon Jan 24, 2011 at 10:20:52 PM EST
    that if people want to vote for a candidate, debatable technicalities should not keep them from doing so.

    Well, there (5.00 / 1) (#11)
    by Zorba on Mon Jan 24, 2011 at 10:32:37 PM EST
    is that.  If the majority of the people of Chicago want him, then who are the rest of us to gainsay them?  

    debatable technicalities ALWAYS play a part (none / 0) (#19)
    by sj on Tue Jan 25, 2011 at 09:55:27 AM EST
    I can't tell you how many candidates I couldn't vote for because of them.

    Why should Rahm be any different?


    I also think that the municipal code (none / 0) (#12)
    by Towanda on Mon Jan 24, 2011 at 10:37:50 PM EST
    will prevail -- and ought to prevail, under andgarden's reasoning that if the people of Chicago wanted this narrower definition of who can run for mayor, than their wishes ought to be upheld.

    If they want to change it, they can do so.


    You are presuming (none / 0) (#13)
    by andgarden on Mon Jan 24, 2011 at 10:40:39 PM EST
    that a) the people of Chicago controlled the content of the election code, b) that they agree with this panel's construction of it, and c) that the panel correctly construed it.

    You are presuming, then (none / 0) (#15)
    by Towanda on Mon Jan 24, 2011 at 10:51:53 PM EST
    that municipal codes elsewhere are controlled by all of the people of those municipalities? Uhhhh, what, they got everyone in Chicago to gather at Navy Pier, New England town hall style?

    The municipal code in Chicago was enacted by the people of Chicago's elected representatives.  What a concept to Easterners, I guess, but that's the way we do democracy here.  

    Of course, in Chicago, that means that the municipal code was enacted by the people's elected representatives as approved by the Daley machine.  But that's the Chicago Way, and we like it that way.  That said, some of us think that it is time to curb the Daley machine -- but interestingly, upholding our code could be the way to do so.

    As for whether panel correctly construed our wishes, no, I don't know that they did so, nor do you, nor does that matter now.  We will see what the high court has to say about that later -- but more important, with ballots being printed in two days (maybe three at most), we will see whether the high court issues an injunction, and whether it puts Rahm on the ballot.  If so, that's that, and the rest will be put to rest or redressed later.


    I do happen to know (none / 0) (#16)
    by andgarden on Mon Jan 24, 2011 at 10:55:48 PM EST
    that Chicago's lack of a partisan primary was enacted by a state legislature controlled by Republicans. As to this particular provision of the code, I cannot say. But at least in my experience with administrative law, the court should not have been so quick to overturn the agency's reasonable construction.

    Of course, I know nothing of Illinois procedure.


    That's one truth about (none / 0) (#17)
    by Towanda on Mon Jan 24, 2011 at 11:03:41 PM EST
    the primary laws, but as you say, not relevant.

    As to whether the appeals ruling was "quick," if it had been any slower, the ballots would be printed already -- now the election commissioner says that the printing begins tomorrow, so the ruling had to be today to be timely -- and on their way within days.  That was Rahm's plan, pushing for early voters.  That makes this even more interesting, as we will see whether he now is against early voting.

    The first ballots will be cast a week from today, unless the courts slow it all down again, but I don't think that they can do so against other courts' clear rulings that military must receive their ballots in time, the reason for beginning the printing tomorrow.


    From what I heard this morning (none / 0) (#30)
    by ruffian on Tue Jan 25, 2011 at 03:08:21 PM EST
    it is a state election law that is governing the mayoral elections in all cities in Illinois, not the Chicago municipal code.

    Chicago can't really control their own destiny in this one.


    Yes, that has been clarified (none / 0) (#31)
    by Towanda on Tue Jan 25, 2011 at 04:22:59 PM EST
    in the Chitown press, too; thanks.  Plus some history on it, though, that indicates that it was written with a lot of Chicagoans' input and with Chicago in mind, in many ways.

    And now I've read the decision, very interesting reading, with several Illinois precedents/rulings not noted by Jeralyn, if others are interested.


    I also (none / 0) (#18)
    by Makarov on Tue Jan 25, 2011 at 12:24:17 AM EST
    found the majority decision well reasoned, but I'm not a lawyer so...

    The main thing the dissent didn't address was the fact the state legislature recently updated the code so that returning military service people could run in municipal elections. If you accept the reasoning of Rahm's lawyers, then that action by the legislature was "wholly redundant".

    I have no idea what the IL supreme court will do, but I do know they've upheld the constitutionality of the durational residency requirement. SCOTUS has also upheld state durational residency requirements for candidates, 7 years in the case of Sununu v. Stark (1975). Even in light of Saenz, I don't believe a 1 year requirement for public office will be voided by a federal court.

    Rahm will win or lose with the IL supreme court, unless some federal district court judge really wants to overstep their authority and ignore jurisprudence.


    I'm not entirely sure they're right, (none / 0) (#41)
    by jpe on Tue Jan 25, 2011 at 05:49:05 PM EST
    but it's a pretty strong opinion as a matter of legal analysis even if the public policy weighs heavily for the opposite outcome.

    I gots a idea-er!! how often would a little (none / 0) (#14)
    by seabos84 on Mon Jan 24, 2011 at 10:45:07 PM EST
    peee-on person get to live in 2 places and run for office where ever whenever?

    to hell with rahm the sell out - this election "law" is so freaking corrupt I don't care what the "reasoning" is for him not getting what he wants - for the misery he's caused,



    I picture you ... (5.00 / 1) (#20)
    by sj on Tue Jan 25, 2011 at 09:56:23 AM EST
    ... like a little gnome.  Or maybe a leprechaun.



    Rahm's lawyers write clearly and (none / 0) (#23)
    by oculus on Tue Jan 25, 2011 at 12:09:54 PM EST
    persuasively.  Bravo.

    He's back on the ballot (none / 0) (#24)
    by jbindc on Tue Jan 25, 2011 at 12:13:26 PM EST
    Right call IMO (none / 0) (#25)
    by andgarden on Tue Jan 25, 2011 at 12:22:31 PM EST
    Do you still have my e-mail address? (none / 0) (#26)
    by oculus on Tue Jan 25, 2011 at 12:28:33 PM EST
    Send me your resume.  I'm having lunch today with a very well-connected state court judge.  

    Can't seem to find it (none / 0) (#27)
    by andgarden on Tue Jan 25, 2011 at 12:33:02 PM EST
    I'm my username at gmail if you wouldn't mind sending it to me again.



    Just sent you an e-mail. (5.00 / 1) (#28)
    by oculus on Tue Jan 25, 2011 at 12:37:43 PM EST
    Leave it to the law.... (none / 0) (#29)
    by kdog on Tue Jan 25, 2011 at 01:23:49 PM EST
    to turn the simple question of where a person lives into an advanced calculus equation:)

    I had to wait a year to gain "legal resident" status to get "in state" tuition to a Fla school...so make Rahm wait, it's his f*ckin' game.

    I remember cases re college tuition (none / 0) (#32)
    by Towanda on Tue Jan 25, 2011 at 04:24:25 PM EST
    that relied on evidence such as how long a student had a local phone number.  Did Rahm keep his?  

    Yeah, college tuition is (none / 0) (#33)
    by brodie on Tue Jan 25, 2011 at 04:31:26 PM EST
    another situation -- too easy to avoid paying those very high out-state fees, so the bar to prove state residency has to be fairly high.

    But here we're talking about running for office, not a teen college student avoiding paying tens of thousands of dollars to the state, and in Rahm's case apparently in his favor is the fact that he's kept and paid taxes on a house/condo in Chicago while he worked in DC and, second, the fact that he always voted in Chicago.


    An interesting thought (none / 0) (#36)
    by Towanda on Tue Jan 25, 2011 at 04:53:37 PM EST
    -- that the bar ought to be higher for taking Freshman English 101 than for being mayor of a major city.

    Then again, to read their words, many a mayor probably did not pass Freshman English 101.  Or Logic 101, for sure.


    in fairness (none / 0) (#37)
    by CST on Tue Jan 25, 2011 at 04:55:25 PM EST
    no one is barring anyone from taking Freshman 101, it's just about whether or not you have to pay more.

    Where-as in this case, he cannot run for mayor.  So it is a bit more restrictive if we're comparing apples to apples.  Which we're not...


    In fairness, "the bar" (none / 0) (#45)
    by Towanda on Tue Jan 25, 2011 at 07:35:23 PM EST
    has a different meaning than yours; my meaning is the same as brodie's in the original comment.  I.e., a noun vs. your use of it as a verb.

    And from that misunderstanding flows the rest, so we'll leave it at that rather than go into less relevant realities of affordability of college.


    I'm satisfied... (none / 0) (#38)
    by kdog on Tue Jan 25, 2011 at 04:57:18 PM EST
    he can run, the law is another matter.  Under the law, plain as day residents of X can very easily not be "legal" residents of X, for a multitude of reasons.  Sh*t I don't think my neighbors are "legal" residents, despite the fact I've witnessed them reside for years...my lying eyes.

    It's unnecessarily over-complicated, but like I said, it's Rahm's kinda game, not mine.  I'm enjoying him stewing in a law cauldron...shame on me for saying, but let him be it's next victim:)Maybe the light bulb turns on, who knows.


    Interesting (none / 0) (#34)
    by jbindc on Tue Jan 25, 2011 at 04:35:06 PM EST
    I live in Northern Virginia, work in Washington, DC, and yet have my phone number (cell) as a Macomb County, Michigan number.  And with things like Magic Jack, you could request a phone number exchange from anywhere.

    Yes, with cell phones these days (none / 0) (#35)
    by Towanda on Tue Jan 25, 2011 at 04:51:45 PM EST
    I would imagine that the criteria have changed.

    Another criterion, I think, was having a local driver's license.  Did Rahm keep his in Illinois, or did D.C./Virginia/wherever require (as Illinois does, within 60 days) a switch?  That is, unless he always was driven around in a White House limo.

    I recall cases of prospective students planning ahead, flying into a state for a few days to get a local driver's license and a local phone number and then flying back home to finish a school year.  


    If you work in Congress (none / 0) (#42)
    by jbindc on Tue Jan 25, 2011 at 05:56:57 PM EST
    or for a member of Congress from your home state, and live in DC, you have reciprocity and do not have to change your license or license plates.

    I would imagine the same applies to members of the administration (even though it is not specified).


    What is the relevance (none / 0) (#47)
    by Towanda on Tue Jan 25, 2011 at 07:37:05 PM EST
    of New York law, Hawaii law, Washington law, etc.?  

    This is about Illinois.

    It's not a matter (none / 0) (#48)
    by brodie on Tue Jan 25, 2011 at 08:07:14 PM EST
    of Hillary having "flimsy" claims to being a NY resident -- the only requirement she needed to meet to legally run for the senate was the one in the US Const'n, Art I sec 3:  be 30 yrs old, be a US citizen for previous 9 yrs, and be an "inhabitant" of the state at the time of election.

    Imo, the requirements for running for mayor of Chicago should not be much different than the minimal ones for Congress.  Basically live there by the time of the election.  And beyond that, let the voters decide whether or not length of residency is an important issue.

    Running for office should be encouraged.  And certainly we shouldn't penalize a resident because he/she has decided to accept a federal post and live temporarily outside the state working for the president.

    One of my friends insists (none / 0) (#49)
    by Militarytracy on Thu Jan 27, 2011 at 09:41:08 PM EST
    That Valerie Jarret is behind trying to sabotage Rham's run.

    Ha. Who was Obama's campaign (none / 0) (#50)
    by oculus on Thu Jan 27, 2011 at 09:56:32 PM EST
    mgr. when he managed to get his all primary opponents disqualified?  

    I honestly don't know (none / 0) (#51)
    by Militarytracy on Thu Jan 27, 2011 at 10:03:39 PM EST
    Who was it?  My girlfriend says there is bad blood between Rham and Jarret now.

    Here's the article I was thinking of. (none / 0) (#52)
    by oculus on Thu Jan 27, 2011 at 10:14:57 PM EST
    Obama's losing campaign for U.S. House of Representatives.  Challenged the other Dem. primary candidates' signatures--and won.   NYT

    Best I can find for now: (none / 0) (#53)
    by oculus on Thu Jan 27, 2011 at 10:36:04 PM EST
    Thanks for the link (none / 0) (#54)
    by Militarytracy on Thu Jan 27, 2011 at 10:51:54 PM EST
    I'm on my not so smart phone.  Very interesting though.  Both coming out of a snakepit like Chicago, and not very compatible :)