[Guest post by Aaron Worthing; if you have tips, please send them here.]
Yesterday, I ran a short post informing you that Rahm Emanuel had won in the Illinois Supreme Court, where they declared that he satisfied the state’s residency requirements and was therefore eligible to run for mayor. Still, due to tons of snow and illness in my wife’s family, I couldn’t post any analysis. Indeed, I hadn’t even read the opinion. Previously I had said that I wasn’t convinced by the appellate court opinion. Having read the state supreme court’s opinion, I am now convinced that the appellate court was wrong. Rahm should be on the ballot.
Now let me start by saying that this has nothing to do with whether I want him to be Mayor of Chicago. I do generally dislike this man for his never-waste-a-crisis schtick and his general association with Obama. But that mild dislike for him is overwhelmed by my more significant sentiment that I just don’t care. I don’t live there, after all.
What did hold me back from condemning the appellate court’s ruling was two things. First, while I am a lawyer, I am not an Illinois lawyer, and I didn’t feel comfortable with the state of my knowledge on the subject. Second, there was a more basic element. Rahm’s theory of the law made it a pointless thing. According to him, you could remain out of state for decades, and as long as you intended to return and live there permanently, you could say you were a “resident” of Chicago. And if that was the case, why bother with a residency requirement at all?
This is not to say that the courts should be in the business of correcting the mistakes of the legislature. If they write a stupid law, we have to live with it, until it is repealed (unless it is stupid in a way that also renders it unconstitutional). But I do think it is reasonable in statutory construction to say that we should not render a law a nullity, or a virtual nullity, unless we are sure this is the right reading of the statute.
There are people complaining that it is ridiculous to read the term “resident” this way. But in fact a large body of law says that this is the case. As I wrote before:
[I]n the law there is a concept called domicile. Basically, the concept isn’t just where you lay your head down at night, but where intend to you lay your head down permanently. And intent controls, allowing a person to claim to have a domicile in a place for years without actually being present in that jurisdiction, as long as you intend to come back and live there permanently. And very often the term “residence” and “domicile” are read identically.
Now, the appellate court did find one line where the state supreme court said that the terms were not identical. But the problem was that the state supreme court actually had ruled that they were essentially alike, as explained in this key passage from yesterday’s decision:
Before proceeding to the merits, we wish to emphasize that, until just a few days ago, the governing law on this question had been settled in this State for going on 150 years. In Smith v. People ex rel. Frisbie…, this court was faced with a question remarkably similar to that which is before us today. Smith, a longtime resident of Illinois, had been appointed a circuit judge by the governor of Illinois, and a quo warranto action was brought to remove Smith from that office on the grounds that he had not been an Illinois resident “for at least five years next preceding *** his appointment,” as the Illinois Constitution then required. In support of their action, the objectors pointed to the fact that Smith had moved with his family to Tennessee for eight months during the relevant five-year residency 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 court then examined the “surrounding circumstances” and found that (1) Smith frequently declared that his move to Tennessee was only an experiment; (2) just two months after arriving in Tennessee, Smith expressed a desire to return to Illinois as soon as became feasible; (3) Smith at no time expressed an unqualified intention to remain in Tennessee; (4) Smith declined to vote in a Tennessee election because “he desired to do no act by which he would lose his citizenship in [Illinois]”; (5) he refused to sell his Illinois law books prior to his move, saying that “he would probably return, and would then need them in his [Illinois] law practice”; and (6) he “only rented his [Illinois] residence when he left.” This evidence, the court concluded, was insufficient to “establish a presumption of loss of residence.”
(citations removed.) It is fair to say that the state supreme court had given the appellate court a “dressing down.”
The point of that quoted passage, however, is to note that this is how they have been interpreting the term “resident” for over one hundred years. Consider this as well. This statute has written apparently in 2007. I have quoted Ex Parte Bain before, where it said that
It is never to be forgotten that, in the construction of the language of the Constitution here relied on, as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument.
Well, that logic applies to statutes, too. And if the residency requirement was written with century-and-a-half understanding of what they are implying when they use the term “residency,” then it is fair to assume that they intended the word to have that implication. Certainly, if they wanted an “actual residency” standard, they could have written the law to make that clear.
Finally, the unanimity of the decision bears on this as well. Of course a court can be unanimously wrong, and even partisanly so, but that is not the way things usually work. Typically you only get this degree of agreement if the law is uniquely clear.
[Posted and authored by Aaron Worthing.]