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Rahm's Rules: Part 2

Second in a three-part series.

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Part One: Paperclips and petitions.

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The reporting on the Illinois Supreme Court's decision on Thursday to reverse the appellate court and allow Rahm Emanuel on the ballot for mayor hardly does justice - no pun intended - to the weird legal theory employed by the court or to the legal arguments which came before it.

On Monday, in the third and final installment of Rahm's Rules, I'll examine the media coverage of the residency challenge. Today I'll examine the legal arguments from start to finish, starting with a couple reports of Thursday's ruling, then going back to the beginning and circling back to the state supreme court so you can see why the five justices who wrote the majority opinion are so misguided and why the two who disagreed (including Anne Burke) with the majority's approach - mostly in tone - but still sided with Rahm wrote the most reasoned argument of the entire proceedings, though they, too, still got it wrong.

Take a look for yourself.

THE ILLINOIS SUPREME COURT
"'The novel standard adopted by the Appellate Court majority is without any foundation in Illinois law,' read the majority opinion signed by five justices," the Tribune reports.

"The justices found that Emanuel never displayed an intent to permanently abandon his Chicago home, which they said would have been the trigger to render him ineligible. Instead, they said, it was clear that when he went to Washington, he always planned the move to be temporary and to return to Chicago one day."

One day. So he could be gone 50 years and come back a day before the deadline to file petitions and still be deemed a resident? The state supreme court says: Yes.

For those of you who thought common sense was on Rahm's side, you have just entered Bizarro World.

*

"The court said the appellate panel hung its decision on a misinterpretation of an 1867 Illinois Supreme Court case involving a judge who temporarily moved to Tennessee but always planned to come back. In essence, the Appellate Court concluded that the 19th century decision didn't cover Emanuel and that residency should be defined as where one rests his head at night.

"The court said the appellate panel seemed to suggest that the Supreme Court in 1867 'did not know what it was talking about.'"

It wasn't quite like that, and I understand the value of precedent, but God forbid we should take the 1867 state supreme court's word as gospel.

*

"Agreeing with points made by Emanuel's lawyers, the justices noted that the Appellate Court's rationale would mean congressmen serving in Washington or legislators spending time in Springfield would be ineligible to run for local offices back home."

First, not so. A congressman usually maintains a primary residence in their district; state legislators are only in Springfield during session. The appellate court was not oblivious to that. Second, if that was the case, so what? What if someone working in Washington had to re-establish residence? Third, maybe the answer is to eliminate or overhaul residency law. The question, though, is how current law applies to a current situation.

*

"Even someone with a vacation home in Florida might be ineligible to seek Chicago office if they didn't sleep in the city every night for a year before an election. 'Would a week at the second home be short enough but two months be too long?' the court asked."

That is a misrepresentation of the appellate court's opinion; if you had a vacation home you obviously would have a primary residence to come back to, and that would be where you spent most of your time. More to the point: What if you had a vacation home in Florida and you boxed up your belongings and rented out your Chicago home and headed south for two years - or more?

The state supreme court now says you could stay in Florida for 20 years and still be a resident eligible to come "home" and run for mayor. The state supreme court begs the same questions it accuses the appellate court of begging.

*

"Veteran Illinois elections lawyer Andrew Raucci said the language used by the high court majority was indeed unusually strong, but he thought the opinion was well-reasoned.

"'I don't know that I agree with the majority's opinion that the law has been settled for 150 years,' Raucci said. 'I believe reasonable people could have differed on that prior to this decision, but they've clarified it now.'"

Have they? As the concurring judges wrote, Raucci is right that residency law has hardly been settled, but they also wrote that the state supreme court has opened up a whole new set of problematic questions.

*

"Five Supreme Court justices said an appellate court got it all wrong Monday when it ruled that Emanuel did not meet the residency standard to run for mayor because he hadn't physically lived in his Ravenswood home for a year prior to the Feb. 22nd election," the Sun-Times reports.

"Two other justices - Anne Burke and Charles Freeman - said they agreed Emanuel deserved to be on the ballot, but they warned that the majority's strongly-written opinion Thursday creates such a broad new definition of 'residency' that it threatens laws about police and firefighters having to live in the city, rules about what schools students can attend and who qualifies for in-state tuition at Illinois universities."

In other words, it is the state supreme court that just created new law, not the appellate court.

For example, if I'm a police officer who wants to get around the city's residency requirement, can I rent out my Chicago home and move to the suburbs as long as I signal an "intent" to return to the city one day?

Or, as the appellate court would have had it, should I be required to have a home in the city where I actually live, even if I go on vacation sometimes?

*

"The Supreme Court said only two elements are needed for a candidate to establish residency: physical presence and the intent to remain. To maintain residency, the test is no longer physical presence but whether the candidate actually abandoned the residence."

The test is no longer if I live where I say I "live," but whether I've sufficiently "abandoned" where I say I "live." Nice.

*

Again:

"The court gave examples of a city resident with a winter home in Florida, someone with a job that requires a worker to live overseas for several months out of the year, or Illinois politicians that also have condos in Washington or Springfield.

"'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?'' the court asked.

"The court's answer was no."

The supreme court is guilty here of reductio ad absurdum; no one has suggested one must spend every night in the same home to maintain residence

*

"'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 court said."

Again, you tell me if this abandonment standards makes sense, and which court's ruling comports more with the spirit of the law and the letter of the law before it is contorted by lawyers.

*

"But attorney Burt Odelson, who filed the challenge against Emanuel's residency . . . strongly disagreed with the ruling, saying the majority opinion 'throws [city] residency laws out the window. It's ridiculous.'"

Odelson is right. Someone can be gone for "even years" and still be a resident qualified to run for public office? How many years? Fifty? And you can move back and rent an apartment during the campaign - or just stay in a hotel? The law says you have to be a resident for a year before the election. We all know what that means. An exception is allowed if you are, for example, drafted into the military. I hardly find accepting the position of chief of staff eligible for an exception; if Rahm intended to come back and run for office, he could have done so within the 12-month time frame. The law isn't supposed to bend for political convenience, which in this case turned on Daley's decision to not run for re-election.

Abandonment as the standard, therefore, is absurd; intent as the second prong is of limited value (and largely consists of mind-reading). All for Rahm.

Am I suggesting politics at play?

I have no earthly idea. But the hysterical tone and obvious inaccurate reading of the case law by both the dissenting judge on the appellate court and the majority on the supreme court - as called out by Burke and Freeman - only makes one wonder why they protest too much. The supreme court went so far as to include a statement to the public that effectively said their decision was based only on the law.

My experience in life is that those who feel prone to make such statements usually belie themselves.

Maybe it's not politics, but the majority seems to be have thought this was a silly case and doesn't seem to have taken it seriously.

But whatever. Let's go back to the beginning, because if you haven't read the reports and court opinions yourself, you've probably gotten the wrong idea from the media coverage.

THE HEARING OFFICER
The media liked to repeat that hearing officer Joe Morris's report was 70 pages to make you feel like it was a work of heft, but the portion dealing with Rahm is really only a few pages; the rest is about three other objections to his candidacy and a description of proceedings. Odelson called it "shallow" and he's right.

Let's take a look at the key passages.

*

"The preponderance of this evidence establishes that the Candidate never formed an intention to terminate his residence in Chicago; never formed an intention to establish his residence in Washington, D.C., or any place other than Chicago; and never formed an intention to change his residence."

I have found, as did the appellate court, the attention on intent to be both odd and overblown, but that seems to be the peg that Rahm's lawyers hung their hat on - and everyone went along for the ride.

The mind-reading about Rahm's intentions is not supportable. The fact that he boxed up his belongings and kept them in a crawl space proves nothing; what was he supposed to do, put them in a storage unit instead?

We don't know Rahm's intentions; he could very well have been offered a lucrative position in Washington or a position elsewhere in the administration or a whole host of things we can imagine that would have prevented a move "home."

But Rahm didn't move back - at least to run for mayor - until Daley decided he wasn't going to run for re-election; Rahm clearly did not intend to make sure his residency was established this year.

*

"The Board may take administrative notice of the fact that this is a public office of considerable weight and importance in the life of the nation.

"[N]o elector . . . shall be deemed to have lost his or her residence in any precinct or electoral district in this State by reason of his or her absence on business of the United States, or of this State."

"There is no principled reason to exclude service in the Executive Office of the President or elsewhere in the executive branch from the ambit of 'business of the United States' any more than to exclude service in the armed forces, the diplomatic corps, Congress or the Federal judiciary."

Oh, but there is.

First, it's not clear to me that the law should bend for someone with an "important" job but not for others. Second, the exemption for being on "the business of the United States" must be interpreted narrowly - the military, for example - or else it becomes too vague to apply. Does any job in the federal government apply? What about a postal worker - isn't that the business of the United States? And how long can someone be away on that job?

THE ELECTION BOARD
"Board Commissioner Richard Cowen said the ruling was based on the fact that Emanuel never abandoned his residence in Ravenswood, which he established long before he and his family moved and rented out his home," the Sun-Times reported.

"Cowen said that although state law requires candidates to live in the state for a year prior to the Feb. 22 election, he said case law states that candidates only need to be physically present in the city to establish residency in the first place - not to continue it."

That's one reading of the case law, but another is that "reside" means "live."

*

"Emanuel clearly intended to return to Chicago all along, Cowen said."

Again, not clearly at all. But also, again, who cares?

*

"But Burt Odelson, the main attorney for those objecting to Emanuel's residency, said Morris' recommendation was a 'poor product' that was 'shallow' on facts and case law. Immediately following the board vote, Odelson challenged the decision by filing an emergency request for an expedited hearing with the Cook County Circuit Court.

"Odelson's filing argues that state law requires a 'physical presence'' in the city for the year before the election; the only exception to the law is for those who leave for military service."

And if that's not the law, it should be. So as long as the state supreme court is making new law, it should have made this the standard. It is eminently more sensible - and fitting with the legislative intent of residency laws - than opening the floodgates to all kinds of legerdomain.

*

"Odelson implied that Thursday's elections board ruling had political undertones: he said in previous cases he's argued before the board under similar circumstances, candidates have been thrown off the ballot.

"'The difference is the candidate,' Odelson said.

"Emanuel's attorneys said no two residency cases are the same and Emanuel's national profile, giant campaign war chest and clout at City Hall didn't sway the decision. Any 'Joe Blow' would have remained on the ballot, attorney Kevin Forde said.

"'If Joe Blow was a cook at the White House, he would have won it on [the same] two grounds,' Forde said."

That's my point exactly. Should we really deem cooking at the White House as a call to national service?

*

THE CIRCUIT COURT
"[Cook County Circuit Court Judge Mark] Ballard said Odelson failed to prove Emanuel abandoned his North Side home when he became White House chief of staff," the Tribune reported.

"Ballard also said that 'having a place to sleep,' which was part of Odelson's argument, is not a 'touchstone of continued residence.'"

Again, the court is ruling that having a place to sleep does not constitute residency, but intending to have a place to sleep does!

*

Now let's look at Rahm's intent.

"In a court hearing earlier Tuesday, Odelson invoked George Orwell's novel 1984, comparing Emanuel with Winston Smith, Orwell's fictional government character whose job it was to rewrite history. Odelson noted that Emanuel moved to Washington and filed his taxes from there. He filed as a non-resident in Illinois after renting out his house.

"He also noted that Emanuel didn't get a homeowner's exemption on his Cook County property taxes.

"After deciding to run for mayor, Emanuel amended his tax returns to call himself a full-time state resident. He said the earlier non-resident filing was a mistake by his accountant.

"Emanuel also filed a 'certificate of error' to regain his homeowner's property-tax exemption.

"Odelson told the judge Emanuel's actions amounted to 'I changed history. Now, I am a Chicago resident - Rahm Emanuel.'"

Besides calling intent into question, paperwork "errors" like that usually get candidates thrown off ballots.

*

"Service in the Executive Office of the President satisfies the statutory requirement that it be 'business of the United States," Ballard wrote.

According to who? And what kind of service - does social secretary count? Ballard just made new law.

*

"Odelson may invoke 1984, but Emanuel's case sounds kind of like 2002 in Massachusetts," the Sun-Times reported.

"Republican presidential candidate Mitt Romney moved from his home in Belmont, Mass., to Utah in 1999 to run the Winter Olympics. Then he returned to his home in Massachusetts to run for governor in 2002 and found his residency challenged by the state's Democratic Party.

"As in Emanuel's case, Romney had filed his Massachusetts state taxes as a non-resident then amended his taxes to make himself a resident to run. Romney also blamed his accountant. Massachusetts' courts rejected the challenges to his residency and he won the governor's race."

You'd think if such smart people always intended to maintain their residency and return to their home states to run for office that they'd be more careful.

More likely, Mitt and Rahm were keeping their options open. Intent, then, is a lousy way to decide this case.

THE APPELLATE COURT
"The issues in this appeal distill essentially to two: whether the candidate meets the Municipal Code's requirement that he have 'resided in the municipality at least one year next preceding the election,' and, if not whether he is exempt from that requirement under the Election Code provision stating that 'no elector . . . shall be deemed to have lost his or her residence . . . by reason of his or her absence on business of the United States.'"

*

"[A]lthough the supreme court's discussion in Smith was based nominally on principles of 'residence,' it appears form its analysis that it actually applied concepts of domicile . . the supreme court concluded . . . based solely on the officeholders' intent to return, that he retained his 'residence' in Illinois . . .

"Since Smith was decided, however, our supreme court has explained unequivocally that 'it is element that domicile and residence are not synonymous.' As the supreme court further explained in Pope, the legal concept of 'residence' requires a permanent abode. Accordingly, to the extent that Smith might establish that a voter or candidate could meet a residency requirement through intent alone, without any permanent abode, the supreme court has since abandoned Smith's approach. For this reason, along with the above-discussed reasons, we do not view Smith as controlling this case."

*

"As noted, the operative language at issue requires that a potential candidate have 'resided in' the municipality for one year next preceding the election. In its verb form, 'reside' generally means, among other things, 'to dwell permanently or continuously,' or to 'have settled abode for a time.' Webster's Third New International Dictionary 1931 (1993).

"The word is considered synonymous with 'live, dwell, sojourn, lodge, stay put [up], [and] stop,' but it may be the preferred term for expressing the idea that a person keeps or returns to a particular dwelling place as his fixed, settled or legal abode.

"These definitions are not interchangeable for our purposes: our selection of the synonym 'live' as a fair definition of 'resided in' would defeat the candidate's eligibility to run for office, because he most certainly 'lived' outside Chicago for a large part of the statutory one-year period.

"On the other hand, our selection of a conception of 'resided in' more akin to the idea of a permanent abode a person keeps or to which he plans to return - the definition the Board seems to have employed - would lend much greater support to he candidate's position.

"The question for us, then, becomes which of these definitions the legislature meant to invoke with is use of the phrase 'reside in' in the Municipal Code.

"In interpreting a statute, a court should consider, in addition to the statutory language, the reason for the law, the problems to be remedied, and the objects and purposes sought by the law."

Yep, the appellate court is out of control.

*

"Our research into legislative purpose reveals that candidate 'reside in' qualifications of the type now at issue date to our State's first constitution, which imposed upon candidates for the offices of state representative and senator the requirement that they have 'resided' within the area for 12 months (or one year) prior to their election and imposed upon lieutenant governor candidates the requirement that they have 'resided' within the State for two years preceding their election. Similar 'reside in' qualifications have appeared, both in Illinois' constitutions and in its statutes, since 1818. "

*

"As Ballhorn further explains, requirements that candidates 'reside in' the area they would represent 'can only be truly served by requiring such representatives to be and remain actual residents of the units which they represent, in contradistinction from constructive residents. A mere constructive resident has no better opportunities for knowing the wants and rightful demands of his constituents, than a non-resident, and is as much beyond the wholesome influence of direct contact with them . . . In [the candidate residency statute] the language is not, shall be a resident, but it is, shall 'reside within' . . .

"Although nearly 200 years of technological advances since Illinois' first candidate 'reside in' requirements may have obviated much of their necessity, the legislature has not seen fit to alter the relevant language. We believe, therefore, that the initial purpose of the 'reside in' requirement for candidates, and the failure of the legislature to alter that language in the current Municipal Code, strongly indicates that the phrase 'resided in' as used in the Municipal Code requires actual, not constructive, residence."

*

"In Park v. Hood, our supreme court held: 'It is well settled that the terms 'residence' and'permanent abode,' as employed in [the Election Code], are synonymous. [Citations.] A real and not an imaginary abode, occupied as his home or dwelling, is essential to satisfy the legal requirements as to the residence of a voter. One does not lose residence 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, he loses his privilege of voting in the district from which he moved.[Citations.] The question of residence is largely one of intention, and a voter is competent to testify as to his intention, although such testimony is not necessarily conclusive.'

"From the admitted facts in this case, we find that the candidate clearly satisfied the qualifications to be an elector for the February 22, 2011, municipal election. Without addressing the question of whether the Hermitage house constituted the candidate's permanent place of abode while it was under lease, we conclude that the candidate clearly falls within the exception to section 3-1 articulated in subsection 3-2(a); namely, that he absented himself from the City of Chicago onbusiness of the United States and therefore did not lose the voter residency status that he had theretofore established in Chicago

"Having determined that the candidate satisfies the requirement to be an elector, we must still address the question of whether he has 'resided in' the City of Chicago for at least one year next preceding the February 22, 2011, mayoral election; the second requirement for candidacy. As we have observed, the 'reside in' requirement is stated separately from, and in addition to, the requirement that he be a qualified elector of Chicago in order to be a candidate for municipal office. The fact that the two requirements are stated separately and in the conjunctive leads to the inference that the legislature intended that they be considered separately from, and in addition to, each other.This inference is bolstered by language from the remainder of section 3.1-10-5. Subsection 3.1-10-5(d) provides that: 'If a person (i) is a resident of a municipality immediately prior to the active duty military service of that person or that person's spouse, (ii) resides anywhere outside of the municipality during that active duty military service,and (iii) immediately upon completion of that active duty military service is again a resident of the municipality, the time during which the person resides outside the municipality during active duty military service is deemed to be time during which the person is a resident of the municipality for purposes of determining the residency requirement under subsection (a).'

For the point that the Municipal Code's 'reside in' requirement is separate from the residency requirement for an elector, we find particularly interesting subsection 3.1-10-5(d)'s concluding language that its exception applies 'for purposes of determining the residency requirement under subsection (a).' Subsection 3.1-10-5(a) contains only one explicit residency requirement: that a candidate have 'resided in the municipality for one year.' Thus, subsection 3.1-10-5(d)'s reference to 'the residency requirement under subsection (a)' must refer to the explicit one-year candidate residency requirement contained in subsection 3.1-10-5(a) and not the voter residency requirements set forth in sections 3-1 and 3-2 of the Election Code."

In other words, what it takes to establish and maintain residency to remain a voter is a less stringent standards than what it takes to maintain residency to run for office. Which makes sense. When I moved to Chicago, I still had a Minnesota driver's license, even though I had lived in Iowa for the preceding nine months. I was able to vote absentee in Minnesota because that's where I was still registered and didn't get my residency changed to Illinois in time for that year's presidential elections. The law allowed me to maintain voting rights at my last permanent address until establishing a new one. But should the law have allowed me to move back to Minnesota and meet any residency requirements it might have to run for public office just because of a vague "intent" to return some day?

*

"Additionally, subsection 3.1-10-5(d), which we quote above, uses the words 'resident' and 'reside' to different effect. The subsection uses the word 'resident' first to describe the concept of legal residence, by referring to a military serviceperson who 'is a resident of a municipality.' Just after that reference, however, the subsection uses the word 'reside' to refer to the serviceperson's act of 'resid[ing] anywhere outside of the municipality.' This usage of the word 'reside' does not denote the concept of legal residence, but rather the act of actually living somewhere outside the municipality.

"Our interpretation that, in using the phrase 'resides anywhere outside of the municipality' in subsection 3.1-10-5(d), the legislature intended to refer to the act of living somewhere outside the municipality is further supported by the wording of the very next clause of that subsection. The clause refers to a person becoming 'again a resident of the municipality' upon his or her return after military service.

"If the military serviceperson must 'again' become a resident of the municipality, then it logically follows that the person lost his or her resident status at some time prior thereto. The only manner in which subsection (d) contemplates a person losing residency status is by living outside of the municipality."

Someone please tell me how that doesn't make sense, because the state supreme court didn't.

*

"Our second difficulty with the candidate's reading o fsubsection 3.1-10-5(d) is that it is belied by the legislative history underlying the subsection. During debate for the senate bill whose passage added subsection (d) to section 3.1-10-5 of the Municipal Code (see 95th Gen. Assem., Senate Bill 253, 2007 Sess.), Senator Luechtefeld, one of the senators who presented the bill, explained the original version as follows:

"'Senate Bill 253 provides that if a person meets all the requirements necessary to run for municipal office, but their time as an active duty member of the military interrupted the residency requirement, they shall be permitted to run for that office. A . . . situation occurred in my district where an individual was in Iraq and . . . he came back, wanted to run for municipal office, but did not meet the one-year residency requirement. This would simply allow them to come back to that same district, the same ward, and run as if they had beent here.' 95th Gen. Assem., Senate Proceedings, Marcy 29, 2007,at 13 (statements of Senator Luechtefeld).

"'Senator Luechtefeld described the final version of the bill in similar terms: 'If you'll remember, I had a bill that we passed unanimously out of here to allow a person to go into the military and . . . be gone maybe a year or two and then come back to a community and run for office, that he would not lose his eligibility because of residency. The House has changed the bill a little bit, but it passed over there unanimously also.' 95th Gen.Assem., Senate Proceedings, May 31, 2007, at 37-38 (statements of Senator Luechtefeld)

Let us review: Rahm went to Washington with a vague "intent" to come back to Chicago "some day." A member of the military went to Iraq to fight a war, with every intention of coming back, and didn't meet the residency requirement.

*

"This legislative history supports our interpretation that subsection 3.1-10-5(d) of the Municipal Code uses the word 'reside' to mean actually live rather than having legal voting residence, and it further undercuts the candidate's argument to the contrary.

"Based on the foregoing analysis, we conclude that, undersubsection 3.1-10-5(a) of the Municipal Code, a candidate must meet not only the Election Code's voter residency standard, but also must have actually resided within the municipality for one year prior to the election, a qualification that the candidate unquestionably does not satisfy.

"Because the candidate does not satisfy that standard, he may be eligible for inclusion on the ballot only if he is somehow exempt from the Municipal Code's 'reside in' requirement

*

"According to the candidate, he falls within this exception because his absence from Chicago was attributable to his service as the Chief of Staff to the President of the United States. We agree with the candidate that his service constituted 'business of the United States' and thus that this exception applies to him.

"We disagree, however, with his position that the exception saves his candidacy. In our view, the exception embodied by section 3-2 of the Election Code applies only to voter residency requirements, not to candidate residency requirements.

"We base this conclusion largely on the plain language of the Election Code. That plain language limits the reach of the 'business of the United States' exception to 'elector[s]' or their spouses; it makes no mention of 'candidates.'"

And Rahm clearly doesn't fall under Luechtefeld's military provision.

*

"Further, as we have noted, we must interpret statutes 'as a whole, with each provision construed in connection with every other section.' Section 3-2's 'business of the United States' exception is housed not only in the Election Code, but in a portion of the Election Code dealing exclusively with voter qualification, in fact in an Article titled 'Qualification of Voters.'

"As we have noted above, among its provisions regarding candidate qualification, the Municipal Code contains an exception that, for purposes of the candidate residency requirement of subsection 3.1-10-5(a) of the Municipal Code, allows those inactive military service to be deemed residents of a municipality during the pendency of their military service even when they reside outside the municipality during their service. 65 ILCS 3.1-10-5(d)(West 2008) If section 3-2 of the Election Code applied to candidates, then its statement that a person will not lose his or her residence 'by reason of his or her absence on business of the United States' would certainly apply to relax the candidate residency qualifications on those who serve in the nation's armed forces.

"If we were to interpret section 3-2 as applying to candidates as well as voters, then, subsection 3.1-10-5(d) of the Municipal Code would become wholly redundant. Our duty to give meaning to statutory enactments where possible, like our duty to follow the plain language of the statutes we interpret, therefore compels the conclusion that section 3-2 of the Election Code was intended to create a residency exception for voters, not candidates.

"We are not the first to draw the distinction between voters and candidates for purposes of the type of exception contained in section 3-2 of the Election Code. The exception traces to Illinois' founding charter, which imposed a residency requirement on state representatives but excepted those who were 'absent on the public business of the United States.'

"Illinois' next constitution, in 1848, stated the exception three times: once for state representatives (Ill. Const. 1848, art.III,), once for state senators (Ill. Const. 1848, art. III,), and once for voters (Ill. Const. 1848, art. VI).

"The 1848 Constitution thus separately delineated 'business of the United States' exceptions for candidates and for voters. Illinois' next constitution, in 1870, retained the 'business of the United States' exception as it related to voters, yet conspicuously omitted the exception as it related to candidates. (The voter exception was later incorporated into the Election Code (see 1959 Ill. Laws 2168) and was not included in our current constitution.)

"This history tells us that, for purposes of the 'business of the United States' residency exception, this State has for over 150 years recognized a distinction between voters and candidates and has retained the exception only for voters.

"That revelation, combined with our interpretation of the language of section 3-2 and its interrelation with subsection 3.1-10-5(d) of the Municipal Code, convinces us that section 3-2's 'business of the United States' exception applies only to voters, not to candidates.

"Accordingly, it cannot avail the candidate here.

"For the foregoing reasons, we conclude that the candidate neither meets the Municipal Code's requirement that he have 'resided in' Chicago for the year preceding the election in which he seeks to participate nor falls within any exception to the requirement.

"Accordingly, we disagree with the Board's conclusion that he is eligible to run for the office of Mayor of the City of Chicago.

"We reverse the circuit court's judgment confirming the Board's decision, set aside the Board's decision, and, pursuant to Supreme Court Rule 366(a)(5) (Ill. Sup. Ct. R. 366(a)(5) (eff. Feb.1, 1994)), order that the candidate's name be excluded (or, if necessary, removed) from the ballot for the February 22, 2011, Chicago mayoral election."

Pretty persuasive, huh?

APPELLATE JUDGE LAMPKIN'S DISSENT
"The majority acknowledges that the candidate had established a residency in Chicago long before 2009 where he had both a physical presence here and the intent to remain.

"The majority failed, however, to move past the issue of establishing residency to the relevant analysis, which turns on whether the candidate's residency, which he had indisputably held, was abandoned when he worked in Washington, D.C., and leased his Chicago home."

Really? I thought I just read otherwise; that Rahm did not meet the requirements to reside here one year prior to the election, nor qualified for an exemption due to being on the business of the United States. Which opinion is Lampkin reading?

*

"The Board's ruling - that the candidate in 2009 and 2010 did not abandon his status as a resident of Chicago and, thus, remained a resident of Chicago even though he was largely absent from this city from January 2009 until October 1, 2010 - was not clearly erroneous."

Really? I thought I just read that it was.

*

"Intent is an issue of fact, and the majority acknowledges that the Board's fact findings were not against the manifest weight of the evidence. This acknowledgment should have ended this case, and resulted in this court affirming the circuit court's judgment, which confirmed the Board's ruling that the preponderance of the evidence established that the candidate never formed an intent to either change or terminate his residence in Chicago, or establish his residence in Washington, D.C., or any place other than Chicago."

Okay, the problem with this is that Lampkin is saying that because we all agree on the facts - you know, Rahm's whereabouts for the past two years - there is nothing left to argue. To be fair, she's saying that because she thinks Rahm's intent was established to everyone's satisfaction. But her appellate colleagues are saying that's not enough; the facts must now be applied to the law.

In other words, just because we all agree I was speeding doesn't end the case. Maybe there is an exception in the law because I was rushing my (theoretical) wife to the hospital to give birth. Or maybe I want to argue that my speedometer was broken. Or that a speed limit sign was wrong.

Lampkin wants to say intent is enough to satisfy the law; her colleagues are saying that the law itself doesn't say that.

*

"In the foundational case Kreitz v. Behrensmeyer, 125 Ill. 141 (1888), the supreme court stated: 'We have frequently held that when a party leaves his residence, or acquires a new one, it is the intention with which he does so that is to control. Hence the shortest absence, if, at the time, intended as a permanent abandonment, is sufficient, although the party may soon afterwards change his intention; while, on the other hand, an absence for months or even years, if all the while intended as a mere temporary absence for some temporary purpose, to be followed by a resumption of the former residence, will not be an abandonment.'

Again, if we have to abide by an 1888 decision that allows someone to leave their residence for an undetermined number of years - and a decision that isn't clearly about candidates but voters - then we're in a lot of trouble.

*

"In order to have changed one's residence, a person, both in fact and intention, must have abandoned the former residence and acquired a new one by actual residence with the intent to make it a permanent home. Affirmative acts must be proved to sustain the abandonment of a residence, and a temporary absence, no matter how protracted, does not equate with abandonment.

"Because a person may have only 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.

"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."

Under this formulation, what do we make, then, of Rahm's decision to file taxes in Washington as a resident and in Illinois as a non-resident? Lampkin doesn't say.

*

"According to the record, the candidate testified that he intended to work in Washington, D.C., for no more than two years. Consistent with that intent, he leased his Chicago home on a short-term basis. Although he and his wife were initially reluctant to lease their Chicago home, they heeded the advice of their friend and real estate consultant to lease the home during their absence for safety purposes. The candidate's intent to work in Washington, D.C., for the limited time frame and then return to his home in Chicago was confirmed by the testimony of three personal friends."

Well, if Rahm and his friends said so!

*

"Furthermore, the candidate never voted in Washington, D.C.,never changed his driver's license to Washington, D.C., never registered his car in Washington, D.C., never purchased property in Washington, D.C., never conducted personal banking in Washington,D.C., and never demonstrated an intent to sell his Chicago home."

Which would be fine if he wanted to come back to Chicago to vote. Lampkin's colleagues show persuasively, though, that the standards to run for office are higher - as they are in many ways. For example, you don't have to collect enough signatures to qualify for voting. You can vote for president while under the age of 35, but you cannot run for president until you reach that age. And so on.

*

"The majority is wrong when it contends the Smith decision was 'based solely on the officeholder's intent to return.' To the contrary, the court, in reaching its determination, considered 'all of the circumstances in evidence,' and not solely the prosecution's failure to establish that the appellant never intended to abandon his Illinois residence.

"Specifically, the court considered the appellant's frequent declarations that his move to Tennessee was only an experiment and he would return to Illinois if he found that he could not remain with satisfaction among the Tennesseans."

In other words, Lampkin says Smith showed intent merely by saying that he would move back one day if he didn't like it there!

*

Further, the appellant refused his partner's request to vote in Tennessee for a particular candidate, saying he did not want to lose his Illinois citizenship."

Which we've dealt with.

*

"The appellant also refused to sell his Illinois law books, saying that he would probably return to Illinois and would need them in his practice."

And I have highway maps of Minnesota. So what.

*

"Moreover, the appellant only rented his residence when he left Illinois. The majority speculates that the supreme court in Smith nominally discussed principles of residence while it actually applied concepts of domicile. Such speculation is baseless and refuted by the text. Although the terms and concepts of residence and domicile were referenced in the prosecution's presentation of the facts and law, in its opinion, the Smith court spoke of residence and never used the term domicile."

Yes, but Lampkin's appellate colleagues are saying that even though they used the term "residence," they were clearly, at times at least, speaking of "domicile," which is something altogether different. Lampkin is merely repeating their mistake.

*

"Furthermore, there is no support for the majority's assertion that the Smith analysis was based solely on intent, which supposedly is 'the defining characteristic of the principle of domicile.' Smith clearly stated 'that, when the residence is lost, it is by a union of intention and acts.'

Fine. We can all agree on that. So?

*

"Clearly, Smith, consistent with Park, analyzed the question of residence not solely based on intent but, rather, 'largely' based on intent."

So be it.

*

"If the legislature had intended the phrase 'has resided in' to mean actually lived in, as the majority proposes, then the legislature surely would have chosen to use the more innocuous word live rather than the verb reside and the noun residence, which are charged with legal implications."

The legislature wanted to use the legal terms. Otherwise we'd be debating what it means "to live" somewhere. I could "live" with a friend. Or I could live in many places without establishing a legal residence.

*

"How many days may a person stay away from his home before the majority would decide he no longer 'actually resides' in it? Would the majority have us pick a number out of a hat?"

How about at least one.

*

"A standard which cannot be defined cannot be applied. If the majority had picked even an arbitrary number of days that voters need not sleep in their own beds before they violated this new arbitrary standard,then at least we would be able to apply this new standard. Should a court consider just the number of days a voter or candidate is absent or are there other relevant factors under the new standard? Apparently, only the majority knows but, for some reason, fails to share it with those charged to abide by it if they want to be a candidate for municipal office."

Wrong. As Odelson argued, you merely must have a place to lay your head. When Rahm's wife was unable to testify at the election board hearing because she was in Washington, where she lives, that should have gotten us most of the way there. The rest of the way was when Rahm had to rent a place from a friend while his house was being lived in by someone else. Rahm still doesn't live in the house he owns here.

*

"The majority's application of a new standard in the instant case shows a careless disregard for the law shortly before an election for the office of mayor in a major city."

As opposed to disregard for the law at a better time? Is this a clue that Lampkin had a pre-existing proclivity to not "interfere" with the election, so to speak?

*

"One can hardly imagine how future potential candidates for municipal office in Illinois will navigate the maze invented by the majority's amorphous standard."

To the contrary: The appellate court lifted the fog from the amorphous standard and the state supreme court pulled it back, as we'll see in Burke and Freeman's missive.

Lampkin also fails to wonder how police officers, firefighters, teachers and others bound by residency rules will feel knowing that they are held to a stricter standard than a moneyed candidate for mayor.

*

"While I strongly believe that the majority's holding is completely erroneous, if the majority were to apply it only prospectively, rather than retroactively to this candidate, therew ould be sufficient time for our supreme court to thoughtfully review it."

Think about the implications of this. The courts are supposed to be, in part, a remedy for complainants and a place to resolve disputes. It is not "retroactive" to apply a finding to a current scenario before the court. No one is asking that we go back and invalidate candidacies of the past. This is the candidacy at issue, but Lampkin seems satisfied to call the candidacy illegal but not act on that finding.

*

"The majority's decision disenfranchises not just this particular candidate, but every voter in Chicago who would consider voting for him."

Now Lampkin is just campaigning. Let the people decide!

But aren't the other candidates and their voters disenfranchised by a decision that allows a candidate to run despite the law? Won't we all be disenfranchised by an illegitimate mayor?

*

THE STATE SUPREME COURT
"[A]lthough the appellate court found that the candidate unquestionably was a qualified elector, it concluded that he did not meet the residency requirement of section 3.1-10-5 because he did not 'actually reside' or 'actually live' in Chicago for the entire year next preceding the election. The court did so without ever explaining what it meant by the terms 'actually reside' or 'actually live.'"

Really? Was it all just a mirage?

*

"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 (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.'

"The objectors pointed to the fact that Smith had moved with his family to Tennessee for eight months during the relevant five-year residency period. 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.'"

This is really all turning on this Smith fellow and his trip to Tennessee?

*

"Since Smith was decided, the principles established in it have been consistently and faithfully applied in the candidacy context by the appellate court of this State."

As you will see shortly, this simply is not the case.

*

"Baumgartner, 355 Ill. App. 3d 842, 847 (2005) (" '[W]here a person leaves his residence and goes to another place, even if it be another [s]tate, 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.'"

Right. If I move to New York and it doesn't work out and I'm back here in three months and I still have my driver's license and so forth, I haven't lost the right to vote here. But I might have lost the right to do anything that requires, say, 30 days' residency.

And certainly, the state supreme court isn't suggesting that I could move somewhere for 50 years and rent out a property I own here and keep a few things in a crawl space and maintain my residency is it? Because I think it is.

*

"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."

Only we are free to craft our own original standard!

By this standard, the appellate court could never find fault with a previous court decision, or find that it had to clarify past decisions in order to settle a case before it.

*

"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."

I can't wait to get to Burke and Freeman!

*

"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.'

"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."

It was the law books that got them!

*

"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.

"For two reasons, the appellate court concluded that Smith was not controlling authority in this case. Neither of these reasons is convincing. First, the court noted that, because Smith involved a quo warranto action, the burden of proof on the objecting party was higher (clear and convincing) than it is for the objectors in this case (preponderance of the evidence).

"While this is undeniably true, we fail to see how it renders Smith's residency analysis irrelevant, as burden of proof does not impact what a party must prove, but only how well the party must prove it.

"The appellate court's other basis for rejecting Smith was its determination that, 'although the supreme court's discussion in Smith was based nominally on principles of residence, it appears from its analysis that it actually applied concepts of domicile.' In other words, the appellate court concluded that Smith is not binding because this court did not know what it was talking about when it wrote it."

And? I'm sorry the supreme court's ego is hurt at the suggestion that some of its predecessors more than a hundred years ago might have gotten something wrong, but get over it.

*

"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.

"The issue in this case is whether the candidate met the statutory requirements to run for and hold elected municipal office, as set forth in section 3.1-10-5(a) of the Municipal Code (65 ILCS 5/3.1-10-5(a) (2008)). That section states, in relevant part:

"'A person is not eligible for an elective municipal office unless that person is a qualified elector of the municipality and has resided in the municipality at least one year next preceding the election or appointment.'

"For present purposes, the critical question is what does this section mean by 'reside[ ] in'? This presents a question of statutory interpretation, which is a question of law subject to de novo review and the rules governing our inquiry are familiar. Our primary goal when interpreting the language of a statute is to ascertain and give effect to the intent of the legislature.

"First, to establish residency, two elements are required: (1) physical presence, and (2) an intent to remain in that place as a permanent home. Second, once residency is established, the test is no longer physical presence but rather abandonment. Indeed, once a person has established residence, he or she can be physically absent from that residence."

If you say so. It's not a law of physics.

*

"The question, then, is whether there is any indication that, in enacting and amending section 3.1-10-5(a) of the Municipal Code, the legislature intended residence to mean anything other than what it has meant in this state for well over a century. There is no such indication. This court has held that '[w]ords used in the Municipal Code, as in any other statute, are to be given their plain and commonly understood meaning in the absence of an indication of legislative intent to the contrary.'

*

"How can this court best construe the residency requirement in section 3.1-10-5(a) of the Municipal Code as to render it consistent and in harmony with the residency requirement contained in section 3-1 of the Election Code? The appellate court's answer was to assign them inconsistent and competing meanings."

To "assign" such meanings or to find that the legislators intended two different things?

*

"How, exactly, this fosters consistency and harmony is unclear, and the appellate court makes no effort to explain."

But they did. Again, was it a mirage?

*

"The far better approach, we believe, and the one that vindicates our obligation to construe the provisions consistently and harmoniously, is to presume that they have the same meaning, that to 'reside[ ] in' means the same thing in section 3.1-10-5(a) of the Municipal Code as it does in section 3-1 of the Election Code."

The far better approach is just to presume? The appellate court went further than that. It analyzed the intent of the law and why it was written the way it was. Apparently it offends to the supreme court to have differing standards of residency for voters and candidates, but as I've shown, it makes perfect sense. And I don't feel disharmonious at all.

*

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

Yes, let's not spent too much time dwelling over the case before us.

*

"First, as already noted, the appellate court asserts that this court 'has at least once noted the distinction between candidate and voter residency requirements.' In support, the appellate court cites to this court's 1960 pronouncement that the residency requirements set forth in the Municipal Code 'differentiate[d] between electors and those persons who may qualify for municipal office.'

"The intended implication, of course, is that this court has a history of defining residency differently as between candidates and electors.

"What the appellate court fails to mention is that the cited portion of Moran was referring solely to the statutory time periods in the respective local residency requirements (i.e., 30 days for electors, one year for candidates), a 'distinction' that appears on the face of the statute and says nothing about how, as opposed to how long, residency must be established."

The point is that that residency requirements are different between voters and candidates. If "residency" can mean two different things in one case - statutory time periods - certainly it can mean two different things in other instances. The court in Moran didn't presume the meaning must be the same.

*

"By way of final thought on this question, we wish to point out that, while this court's traditional definition of residence may be plugged into the Municipal Code without creating any ambiguity or confusion, the appellate court's new and undefined standard promises just the opposite.

"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,' and concludes that it means to have 'actually resided.'"

Now the supremes are just channeling their inner Lampkins. It seems from passages like this that the court is not only angry about having to take up this case, but that they had already made up its mind. No wonder they didn't want briefs or oral arguments.

*

"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?"

Aaaarrrggh!

*

"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?"

Not so. But what if it was? So what! Where is the legal argument that congressmen must be availed of the opportunity to run for local office before they qualify for any residency laws that might apply?

THE CONCURRING OPINION
"We join in the majority's decision to reverse the judgment of the appellate court. We do not, however, agree with the majority's reasoning.

"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.' This is simply not true."

I think you're going to see here that I'm right.

*

"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.')."

And to think that the rest of the supreme court justices just fulminated about the appellate court finding just this.

*

"The majority bases its decision entirely on Smith v. People (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)."

And to think the rest of the supreme court justices just fulminated about the appellate court finding just this.

*

"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."

Imagine that. Intent alone is not sufficient.

*

"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."

Oh my, how they fulminated!

*

"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's the majority which is now ignoring precedent and creating a new standard! My how the plot has turned!

*

"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', adopted a 'previously unheard-of test for residency', or was engaged in a 'mysterious' analysis.

"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', 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.

"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."

But is there reason now to cast aspersions on Lampkin and her kindred spirits on the supreme court?

*

"Finally, it should be noted that today's decision will raise questions beyond the facts of this case. 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."

I think I said that!

*

"Because of the breadth of today's decision, we do not join the majority's holding that residency is the equivalent of domicile and that intent, therefore determines residency, even in the absence of any physical presence."

In other words, Burke and Freeman disagree with the entirety of their colleagues' reasoning, and instead agree with the appellate court.

*

"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."

Fine. But why? What if Rahm accepted another position in Washington upon leaving the chief of staff's job and stayed another two years? And another four years after that? Or 40 years, renting out the house he owns here the whole time?

Perhaps the relevant question is simply this: When the law says you must reside in the city for a year before an election in order to qualify, does reside mean reside? I think it does. The intention is that the candidate actually live here - oops, there's those words! - for a year before the election. Rahm Emanuel has not met that requirement. Therefore, I dissent.

-

Next in the series: How the media repeatedly and recklessly got this story wrong.

-

Comments welcome.

-

1. From a Beachwood reader with good reason to remain anonymous:

Imagine you are a Chicago firefighter and you own a house on the Southeast Side. But you decide to move your family across the state line into nearby Indiana. You enroll your kids in school in Indiana. Then you rent out your Chicago house, but you keep family heirlooms stored there. You keep paying taxes on your Chicago house, you keep your voting address at the Chicago house, etc. Then imagine what happens when the city investigates you for living outside of Chicago?

What if you said "Everything is intent. I fully intend to move back to my Chicago house, therefore I am a resident of Chicago?"

REPLY: And that's what is wrong with Burke and Freeman's position, which carves out a sole exception for renting out one's home. And without that, Burke and Freeman are with the appellate court.

It seems to me that the emergency nature of this decision meant that the court didn't give it full consideration; no briefs, no oral arguments, and no apparent thorough discussion between the judges. Rahm got the benefit of the doubt - a benefit I doubt many others would have gotten.




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Posted on January 28, 2011


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