Will Illinois Supreme Court restore Rahm Emanuel to the ballot?

Good question. Greg Hinz makes an interesting point:

  But the matter -- probably quickly -- is now headed to the Illinois Supreme Court. There, perhaps the swing vote may be held by Justice Anne Burke, wife of Chicago Alderman Ed Burke (14th), who has endorsed another candidate: Gery Chico.

That would suggest a political decision (what!? You mean that the Illinois Supreme Court would do such a thing?)

But here's something from the Appellate Court decision that strongly suggests that the high court already has established a precedent that it might be tough to overthrow:

In its decision, to determine whether the candidate met the

Municipal Code's requirement that he have "resided in" the

municipality for one year, the Board applied the test for residency

that has been used for voter qualification under the Election Code.

This approach is supported by several appellate court decisions

that, without discussion, equate residency requirements imposed on

voters with requirements that a candidate "resided in" his or her

political unit. See e.g.People ex rel. Madigan v. Baumgartner,

355 Ill. App. 3d 842, 847-48, 823 N.E.2d 1144 (2005) (stating only

that it would treat the terms as synonymous "because eligibility to

run for office is closely linked to the ability to vote within a

particular jurisdiction"); Walsh v. County Officers Electoral Board

of Cook County, 267 Ill. App. 3d 972, 976, 642 N.E.2d 843 (1994)

(assuming implicitly that the terms were synonymous); Delk v. Board

of Election Commissioners of the City of Chicago, 112 Ill. App. 3d

735, 738, 445 N.E.2d 1232 (1983).

Neither the Board nor the parties have, however, referred us

to any supreme court opinion ratifying, adopting, or directly

addressing this approach. The only cited supreme court case to

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7

approach the issue is Smith v. People ex rel. Frisbie, 44 Ill. 16

(1867), a quo warranto action decided under the presumption that

the candidate had a right to the office to which he had been

appointed and in which the court required the objectors to

establish the candidate's disqualification by "clear and

satisfactory" proof. See Smith, 44 Ill. at 24-25. We know of no

similar presumption applicable to this case, and the objectors here

bore the less stringent burden to prove the candidate's

disqualification by a preponderance of the evidence. See Board of

Election Commissioners of the City of Chicago, Rules of Procedure

10 ("[T]he objector must bear the burden of proving by operation of

law and by a preponderance of the *** evidence *** that the

objections are true.").

In addition, 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.

Despite the facts that the officeholder had left Illinois with his

family and had rented out his Illinois home, the supreme court

concluded, based solely on the officeholder's intent to return,

that he retained his "residence" in Illinois. See Smith, 44 Ill.

at 24-25. This intent-based analysis is the defining

characteristic of the principle of domicile, a legal status that,

once acquired, can be "retained, animo solo, by the mere intention

not to change it and adopt another." Hayes v. Hayes, 74 Ill. 2d

312, 314 (1874). Since Smith was decided, however, our supreme

No. 1-11-0033

8

court has explained unequivocally that "it is elemental that

domicile and residence are not synonymous." Pope v. Board of

Election Commissioners, 370 Ill. 196, 202, 18 N.E.2d 214 (1938).

As the supreme court further explained in Pope, the legal concept

of "residence" requires a permanent abode. Pope, 370 Ill. at 200.

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 abovediscussed

reasons, we do not view Smith as controlling this case.

Here is the majority's conclusion:

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

No. 1-11-0033

24

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." Ill. Const. 1818, art. II,

§3. Illinois' next constitution, in 1848, stated the exception

three times: once for state representatives (Ill. Const. 1848, art.

III, §3), once for state senators (Ill. Const. 1848, art. III, §4),

and once for voters (Ill. Const. 1848, art. VI, §5). 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 (see Ill. Const. 1870, art. VII,

§4), 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

No. 1-11-0033

25

"resided in" Chicago for the year preceding the election in which

he seeks to participate nor falls within any exception to the

requirement.

Be sure to read the dissenting view at the same site.

 

 

Comments

Leave a comment
  • After both the American Princess and I have read the opinions, I have to concur with the parts she quoted that not only the dissent, but the majority phrased its opinion in such a way that the Illinois Supreme Court cannot avoid reviewing it.

    Your statement that "strongly suggests that the high court already has established a precedent that it might be tough to overthrow" basically has no support in the majority opinion. The Illinois Supreme Court will probably have the last word on the effect of the 1938 case on this one.

  • Based on what was just announced as the ruling of the Court, you were wrong.

    I had the feeling that you quoting random parts of the Appellate Court opinion was the equivalent of me trying to figure out the Polish ad for Shop and Save Market. I know what ogorki, kapusta, and kielbasa are, but otherwise make no effort to understand it. Maybe you and Zorn should take the same attitude as to legal matters.

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