Patterico's Pontifications

1/28/2011

The Illinois Supreme Court Got It Right on Rahm

Filed under: General — Aaron Worthing @ 12:57 pm

[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  If they write a stupid law, we have to live with it, until it is repealed (unless it is stupid in a way that also renders it unconstitutional).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.]

43 Responses to “The Illinois Supreme Court Got It Right on Rahm”

  1. I don’t know how much partisanship or patronage was involved. I don’t believe any.

    Three of the Supreme Court Justices are elected from Cook County. The other four, each, from the other four judicial districts.

    Trust me, “downstate Democrats” are more “conservative” than Cook County Republicans.

    nk (db4a41)

  2. We have a unanimous decision, so I think they were all honestly doing their jobs.

    (I also think that they might have resented the Appellate Court’s slap at Judge Mark Ballard. He is very well known and respected, as I have I said before.)

    nk (db4a41)

  3. nk #2

    could be, could be. they were certainly slapping the appellette court, that is for sure.

    nk #1

    i think the opinion was sufficiently well reasoned that i presume that they were ruling for the right reasons.

    Aaron Worthing (e7d72e)

  4. This entire exercise was nothing more than a laughable (but not very funny) sideshow obfuscating the important issues facing our city and our state – they’re both bankrupt, and no candidate has of yet outlined a credible plan for getting us out from under the piles of debt caused by corruption, crony capitalism and public pension largesse. So we now are faced with less than a one month to go before we vote – just great, as usual.

    Dmac (498ece)

  5. What about Rahm’s original tax return which he later amended to claim Illinois residency?

    I guess if amendments are allowed, then he cannot be held to his original declaration?

    BfC (ffa9b4)

  6. Emanuel, Rahm
    sung to the tune of Barbara ann

    E-man-man, man-manuel, Rahm!
    Man! man! man! Emanuel, Rahm!

    Emanuel, Rahm
    They took so long
    To sing your song.

    You got me mockin’ and a trollin’
    Moby’n and agree’n
    Emanuel, Rahm. Rahm, Rahm
    Emanuel Rahm.

    Left the president; ended his romance
    He’s back in Illinois, so he thought he’d take a chance
    And make a run, Mayoral run!
    Emanuel Rahm!

    You got me mockin’ and a trollin’
    Moby’n and agree’n
    Emanuel, Rahm. Rahm, Rahm
    Emanuel Rahm.

    (tongue firmly in cheek)

    > Felipe (02954a)

  7. Actually, Aaron, that is precisely how my dad maintained his Illinois residency during his 28-year military career — declaring his intent to return to his home state upon completion of his service to this country. He maintained his legal domicile in his hometown even after his folks rented out the family home and moved to another part of the state — and it was a good 15 years until his mother actually returned to that home. indeed, it was only after 20 years of service in the Navy that he returned to Illinois — he was stationed at the Great Lakes Naval Training Center — and transferred his legal residence to that part of the northern part of the state from his southern Illinois hometown.

    For that matter, down here in Texas we have several RV parks where there are parking spots owned by senior citizens who then travel the country for months at a time. They still retain their Texas residence for voting, taxation, and other purposes. The issue is one of intent to return.

    Anything else would make some returning veterans ineligible for political office — and would, in fact, make Barack Obama ineligible for political office in Chicago if he hypothetically wanted to run for something in the election immediately following his departure from the presidency.

    Rhymes With Right (4b584a)

  8. Congratulations to Rahmbo: This decision is tantamount to allowing the Rahmster to vie for the captain’s chair on the Titanic…after it’s already hit the iceberg.

    MarkJ (42fe5b)

  9. 7. Good, your dad should wait a year, and so should Rahm, and Obama.
    But, that’s not what we have nowadays, we have a whining, deranged, gimme gimme gimme, I want I want I want, set of addled crybaby whining brainless and greed stricken fools, that declare anything goes.

    The prior thread on this revealed the immense stupidity of many of the sheeple, those I dare not refer to in seriousness as my fellow citizens.
    I’ll add my former comment.

    http://patterico.com/2011/01/27/breaking-rahm%E2%80%99s-good-to-go-for-mayor/comment-page-1/#comment-748204

    #23. Comment by liontooth

    Go ahead, swallow their BS whole. The congresscritters travel home all the time and stay at their residences throughout the year on the weekends, etc- see Pelosi’s wonderful new cross country jet.
    Also when congress isn’t in session.
    —-
    It’s absolutely amazing how now we have the ZERO NADA NOTHING that qualifies for reasonable.
    Reasonable is the person spends some time at their residence throughout the year.

    Nope now we have NO TIME AT ALL WHATSOEVER NOT A *** ******* MINUTE, and ….

    The sheeple agree.
    That’s great. Love it. I love how stupid my fellow Americans are.
    Man, it’s unbelievable.

    Comment by SiliconDoc — 1/28/2011 @ 10:49 am

    ———————-

    Now, I’m certain the whining crybabies are appeased, boy they sure better be, as they get every ridiculous whim their hacking lame butts can muster up to remain part of the power crime lords 24/7/365, without a single break or stepping aside for their fellow, and just as stupid and corrupt citizens.

    Congratulations fools, another notch carved, and the destruction ensues…

    SiliconDoc (7ba52b)

  10. 7. Since we’ve widely adopted your crybaby position, we have a buttload of politicians and playas, as well as our regular congresscritter crew, running about for a year or two before their next tax paid gig, absconding with a war chest, and flapping their lips, instead of doing the current job they are paid to do.
    In the case of your dad, he should spend a year with his family and community (and no doubt had LEAVE that allowed it anyway during 20 years!!!!!!) to get acclimated and to GET A HANDLE ON WHAT’S GOING ON IN THE COMMUNITY…

    Yes, the REAL REASON reasonable people have said, in this case, a YEAR OF BEING THERE SO YOU KNOW WHAT’S GOING ON AND CAN DO YOUR JOB !
    —-
    My fellow sheeple, do not think, at all, as they babble on, declaring their great and sainted crybaby whines, they claim are “if not it wouldn’t be fair!!!!!” whines, just like the lefty, dems, and commies, have taught them so well…
    —-
    People are so stupid nowadays, it’s incredible, and that of course is why we have the mess we do. A giant gaggle of self proclaimed brilliant excuse artists, who ALWAYS MISS THE MAIN POINT AND REASON… let me repeat it again for you, since you are no doubt LOST…
    —-
    The time “at home” and “in the community” should be required, so that, the “applicant” can DO THEIR ******* JOB PROPERLY IF THE PEOPLE HIRE THEM!!!!!!!

    I hope you’ve got it, and don’t forget.

    SiliconDoc (7ba52b)

  11. The prior thread on this revealed the immense stupidity of many of the sheeple, those I dare not refer to in seriousness as my fellow citizens.

    #23. Comment by liontooth
    Go ahead, swallow their BS whole.

    Did you even read the IL Supreme Courts decision?

    liontooth (ab09a0)

  12. Did you even read the IL Supreme Courts decision?

    Comment by liontooth

    Why would he? They are obviously in on it, Knights Templar via Bildebergers, don’t ya know?

    Estragon (ec6a4b)

  13. Oh a conspiracy theorist fruitcake has entered the thread.

    SiliconDoc (7ba52b)

  14. Oh a conspiracy theorist fruitcake has entered the thread.

    Estragon is mocking you, dipsh*t. And rightly so.

    The ILSC got this decision right based on the law and standing precedent. While you might not like the decision, that doesn’t make it wrong.

    Scott Jacobs (d027b8)

  15. Alternate response to SiliconDoc:

    “Yeah, you entered the thread a while ago…”

    Scott Jacobs (d027b8)

  16. 11. I think it’s nice you agree they don’t ever have to set foot in the state at all the prior year – they can mail in their property taxes, their ballot, and heck, they can run their campaign on the internet now, too.

    They can read the online newsparers, and peruse the online local happenings, and hit the state and city online databses and law postings for all the answers.

    Heck we can have bubble boy stuck in California as the new Chicago don. Why not, just as ridiculous as you people are, swallowing whole the BS like a little darling.

    Let me say it again – person living in residence means they have the information and knowledge about their local community they want to represent.
    They read the local news, they hit the pavement and pick up the gossip, they mingle with the people and power players – they drive by the new construction and see things with their own eyes, they LEARN ABOUT THEIR COMING JOB and what needs to be done.

    It’s EXACTLY LIKE the entire nation shrieking that Bush needed to show face ON THE SPOT after Katrina hit, and LIKEWISE – our current usurper lying idiot ON THE GROUND STICKING HIS FINGER IN THE SAND with the BP oil spill disaster…

    I quite get it though, that my fellow sheeple, fools that they are, don’t frankly, give a ****.

    It’s a much happier fantasy for them “claiming they are legal beagles who read documents” then, ignoring the plain as the dirty nose on their face rebuttal, whine they “read the decision”.

    Yes sir it is PATHETIC, as usual.
    Thanks for your support. Love it.
    Selling lies to the fellow sheeple is so easy nowadays, it’s just a wonderful situation.
    Good LORD!
    I mean wow.

    Here, let me issue your whine again for as a rebuttal:

    “but but but but but but it’s unfair what will the critters do when they are away for a year doing some other job we pay them to do !!!!!!!! OMG it’s so unfair !!!! they can’t represent where they don’t live???!!! that’s wrong wrong wrong !!! oh my ! !!! wahhhh wahhhh wahhhhhh !!! ”

    Yes, you people are absolutely INSANE. No problem, you agree with the lunatics who wrote out the decision….

    Nope can’t say I can stand you. Said why, sure hope you get it, but I seriously doubt you text monkeys do. Maybe you’re all save face but then that’s just as bad, and worse – getting wrong in the 1st place then sucking that power rump as if it makes any sense whatsoever… your stance based on some PATHETIC WHINE ABOUT NOT BEING ABLE TO BE LIVING THERE EVEN ONE SINGLE MINUTE FOR THE ENTIRE PRIOR YEAR !

    Now, after you people, and your PATHETIC CRAP SUPPORT OD LIES AND EXCUSES, what are you going to say, when the jerk in question…

    IS LIVING THERE ON HIS IN PERSON CAMPAIGN TRAIL FOR SO MANY MONTHS BEFORE WINNING ?

    HUH?!!?? WHAT YOU FOOLS GONNA DO THEN ?!!?? WHINE THEY CAN’T BE THERE?!!??? LIKE YOU ALREADY HAVE ?!!??

    Yes, of course….YOU are the consistent, “deep thinkers”, who are totally fruitbat nuuter duped insanoes. ( yes that was sarcasm )

    Whatever, glad you won and I lost. Be happy you win liontooth, you WIN, just like Rahm.

    SiliconDoc (7ba52b)

  17. Seriously dude. Take your meds and go take a nap or something…

    Scott Jacobs (d027b8)

  18. LOL – another one.

    SiliconDoc (7ba52b)

  19. No, I’m being serious. I’m hardly what you’d call a fan of Chicago Politics, but you’re sounding like the creepy dude who sat in the back of a poli sci class, talking about how you knew the REAL cause of things…

    You’re having a seizure over this, and it is WAY out of proportion.

    And trying to suggest I’m some sort of conspiracy nut just proves that you’re pretty new here, and should try to not act like a f**kwad while you learn the ropes.

    Scott Jacobs (d027b8)

  20. 14. You’re too stupid to realize what is wrong is the law, as I said.
    Of course you’re not really too stupid to know that’s what I think and what I said, but you are a lowlife enough to say it anyway.
    Simply kissing the decision tokus then claiming it makes sense because people just cannot be there – as our friend lionking, samck talking it to me in the other thread said, IS JUST AS STUPID.
    Aaron plainly noted even if he “considers the law wrong”, and the decision matches….

    So were not playing the same game. your playing you’re an idiot game, like a two year old, and here it is:
    ” The ILSC got this decision right based on the law and standing precedent. While you might not like the decision, that doesn’t make it wrong. ”

    Well, thanks for your brilliance…. LOL Gosh don’t know what I’d do – next you’ll shriek judicial activism is wrong and I ned to read upon that and get a working definition in my brain.

    I feel sorry for you people – bound by your own stupidity assumptions( you apply to others) and bound to “argue” as if the very basics are missed by “your opponent”.

    Look, the decision stinks to high heaven, PERIOD.
    The least we can expect is some very strong language that indicates they realize the whole shebang is a joke, even when they dictate what the INSANE JERKS have declared is the way the law shall be
    You fools don’t even care about that, nor look for it, at all.
    I really am ashamed of you people. You’re so predictable and such pathetic responders.

    Next you’ll shriek that’s what dissents are for. so on the one hand you expect compliance with the legislated law, you get that, declare you believe the law is wrong, but then declare it’s great the court made the right UNANIMOUS decision… gloat in your simpleton interpretation, shriek in cohesion “read it!” – in conjunction with your side by side fool who did that for you – YET FAIL TO POINT OUT A SINGLE RUFFLED FEATHER THAT NOTES ANY OF THE DECIDERS DISAGREE WITH THE LAW AS WELL , BUT APPLIED THEIR DUTY AND DECIDED IN LINE WITH NO JUDICIAL ACTIVISM…

    So any of readers “detect” any disdain in the decision…?

    I seriously doubt it, but it would have been nice one of you used your freaking head, instead of whined like two year old like you just did, Scott:

    “doesn’t make it wrong !!!” – as the pathetic weasels agreed and claimed “they can’t be there!”…

    You people are just TERRIBLE. Seriously, absolutely terrible.

    I’ll wait for the studious lion to point out what he detected in the decision as the disgruntled judge, did his duty you all claim agrees with the legislation…

    I’ll bet that never comes, and the rest of you can shriek some more CRAP about me and my delivery.

    If you weren’t such idiots to begin with, it wouldn’t happen.

    SiliconDoc (7ba52b)

  21. a working definition in my brain

    You would first need a working brain.

    Scott Jacobs (d027b8)

  22. LOL – Thanks Scott.

    SiliconDoc (7ba52b)

  23. I’m glad for the ruling. Now we yokels don’t have to rely on electing some other yokel who actually, well, you know, lives among us. As long as some politician intends to live among us, even if they don’t, won’t and perhaps never will, that’s good enough. Now we can vote in the best and brightest no matter where they are from.

    I hope to elect as my representative a European who was born in Europe, lives in Europe, and really, really, intends to live the US. After all, if we can’t a take a politician’s honorable word about their intended actions, who can we trust?

    tehag (c9c7bc)

  24. Chicago will get what it deserves. Trouble is the rest of the state will pay the price.

    Gerald A (c59273)

  25. So what is your take on Dan Coats (R-IN) dropping back in when he had no intention of returning to Indiana?

    He made a speech where he insulted every last Hoosier by stating, “If you don’t tell the good people of Indiana” followed by his statement as to how excited he and Marcia were to be living in North Carolina and couldn’t wait to vote for North Carolina politicians. The Republicans dragged him back from that dream, he entered the senatorial race, and the rest is history.

    I am a democrat, so, of course I thought it was not above board. But, those who voted for him didn’t seem to care that he had abandoned Indiana and only returned to take a seat that the Republicans thought might go to a democrat (if there was no name recognition for a Republican).

    Charlotte A. Weybright (ddf9d0)

  26. Charlotte–the FEC, states and cities vary greatly with respect to their own laws for candidacy requirements for specific offices. Each of them is responsible for enforcing the existing law in their jurisdiction. What was done in Indiana or in any other state, and whether it was right or not, has nothing to do with the Supreme Court ruling in Illinois this week concerning Rahm. As I have read many of the angry and frustrated comments about this case I see people arguing what they think should be, or what is “common sense”, or what their experience has been elsewhere. Interesting stuff to be sure– food for thought–but not relevant to the mayor’s race in Chicago.

    elissa (cd88ee)

  27. SiliconDoc — we’ll just mark mark you down as “anti-veteran”.

    Rhymes With Right (4b584a)

  28. You are buying the court majority hook, line and sinker without considering that the concurring opinion stated that the “facts” you cite here were simply wrong. The court took no briefs or oral arguments; therefore the court relied on the appellate court dissent that wrongly lambasted the appellate majority’s alleged errors with a chance for rebuttal. Read Burke and Freeman’s opinion and you might feel differently. Finally, I lay out the whole case here and why the Ill. S.C. clearly got it wrong: http://www.beachwoodreporter.com/politics/rahms_rules_part_2.php

    Steve Rhodes (5bd81c)

  29. Should be “without” a chance for rebuttal.

    Steve Rhodes (5bd81c)

  30. the concurring opinion stated that the “facts” you cite here were simply wrong.

    If it thinks the facts are wrong, but still agrees with the majority…

    No, you know what? I don’t want to understand how that works in your head.

    I thought we made it clear that we wanted you to go away, Silicon…

    Scott Jacobs (d027b8)

  31. I saw a reference to Rahm and his tax returns. Did he (cheerfully!) pay his Illinois income taxes while he was gone, or not? If he did, great, he was a resident and citizen. If he skipped out on them, then no. (I realize this is probably not the law, but it is great indicator of intent — and/or hypocrisy).

    Eric (f51c78)

  32. Well, he amended his Federal returns, but I’m not sure about State taxes.

    But if you don’t make the money in IL, I don’t know what the rules are for paying taxes on it.

    Scott Jacobs (d027b8)

  33. Lower courts are bound to follow precedent.

    How did the appellate court fail to follow Smith?

    Michael Ejercito (64388b)

  34. Likely, they thought/decided the new law (new since Smith) was not covered by the existing precedent.

    Scott Jacobs (d027b8)

  35. But if you don’t make the money in IL, I don’t know what the rules are for paying taxes on it

    If you are a Illinois resident, you’re required to file a state return and pay taxes on it.

    Gerald A (c59273)

  36. Elissa – thanks for replying. I understand that states and cities have their own criteria, but I was just curious, though, how you saw our situation in Indiana.

    I know it doesn’t impact Chicago – I was just curious.

    Charlotte A. Weybright (ddf9d0)

  37. Eric, Rahm filed taxes as if he wasn’t an Illinois resident … and then within days of announcing his candidacy for Mayor, he amended his tax returns to show himself as an Illinois resident.

    That’s pretty clear evidence of fraud in my opinion.

    SPQR (26be8b)

  38. I disagree. I see it as gaming the system, sure. An example of using loopholes and exceptions to get around that the law probably meant to say, but does not say in the literal language.

    That doesn’t make it fraud. Just really good rules-lawyering.

    Scott Jacobs (d027b8)

  39. Scott, if Rahm “intended” to be a resident of Illinois, then wasn’t his first tax return tax fraud? If the first wasn’t, then wasn’t the second one a fraudulent one?

    SPQR (26be8b)

  40. The thing is, it really doesn’t matter about the first one. The fact that he amended it means the first one stops being important.

    But yes, I think that at the end of the day, Rahm always intended to come back to IL, just not so SOON.

    I think it very likely he’d have waited at least another year, if it weren’t for two things:

    a)I think the realities of being in the White House really got to him. Having a boss that largely didn’t listen to your advice would have to get pretty old pretty fast. Wasn’t Rahm the guy people said tried to get the President to stop focusing on HCR, saying it would only end up hurting him? I think he left partly because he got sick of being the sane one sent to die on that hill every time there was an issue.

    b) I think that while he likely intended to run for Mayor, he did NOT expect Daley to decide so late in the game that he wouldn’t run for another term. I think Rahm expected to have at least another 2 or 4 years before he was going to have a shot at it.

    Scott Jacobs (d027b8)

  41. Scott Jacobs, the first tax return is the one where he states he does not reside in Illinois … because he does not want to pay taxes there.

    And this is unimportant to you?

    SPQR (26be8b)

  42. As a resident of Illinois who also gets to pay those taxes, the only thing it is to me is understandable.

    Scott Jacobs (d027b8)

  43. Good decision – Rahm and Chicago deserve each other.

    Wright (8a7bfe)


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