Illinois Supreme Court Rules For Rahm Emanuel Ballot Inclusion

Monday’s decision by the Illinois Court of Appeals to strike Rahm Emanuel from the ballot for the Chicago Mayoral election set for February 22 caused quite an alarm. The Court of Appeals decision appeared on its face to be quite well reasoned and well taken in light of the wording of the statute at issue. Mr. Emanuel immediately (by Monday night) filed an emergency Motion for Stay and Petition for Leave to Appeal to the Illinois Supreme Court.

The Illinois Supreme Court has just issued its opinion on the Emanuel emergency appeal and, in a decision authored by Justice Thomas, has reversed the Court of Appeals and fully reinstated Rahm’s eligibility for the ballot and office of Mayor of Chicago:

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 originalstandard for determining acandidate’sresidency. See No. 1–11–0033, slip op. at 6-8 (dismissing the foregoing authority in its entirety). 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.


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.


Second, this court has twice stated explicitly that related provisions of the Election Code and of the Illinois Municipal Code are to be considered in pari materia for purposes of statutory construction. See Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 218 (2008); United Citizens of Chicago and Illinois v. Coalition to Let the People Decide in 1989, 125 Ill. 2d 332, 338-39 (1988).


So where does all of this leave us? It leaves us convinced that, when determining whether a candidate for public office has “resided in” the municipality at least one year next preceding the election or appointment, the principles that govern are identical to those embodied in Smith and consistently applied in the context of determining whether a voter has “resided in” this state and in the election district 30 days next preceding any election. Thus, in assessing whether the candidate has established residency, the two required elements are: (1) physical presence, and (2) an intent to remain in that place as a permanent home. Once residency is established, the test is no longer physical presence but rather abandonment, the presumption is that residency continues, and the burden of proof is on the contesting party to show that residency has been abandoned. Both the establishment and abandonment of a residence is largely a question of intent, and while intent is shown primarily from a candidate’s acts, a candidate is absolutely competent to testify as to his intention, though such testimony is not necessarily conclusive.


Given the record before us, it is simply not possible to find clearly erroneous the Board’s determination that the objectors failed to prove that the candidate had abandoned his Chicago residence. We therefore reverse the decision of the appellate court and affirm the decision of the circuit court, which confirmed the Board’s decision.

So there will be no mistake, let us be entirely clear. This court’s decision is based on the following and only on the following: (1) what it means to be a resident for election purposes was clearly established long ago, and Illinois law has been consistent on the matter since at least the 19th Century; (2) the novel standard adopted by the appellate court majority is without any foundation in Illinois law; (3) the Board’s factual findings were not against the manifest weight of the evidence; and (4) the Board’s decision was not clearly erroneous.

Appellate court judgment reversed; circuit court judgment affirmed.

Well, although I found the Court of Appeals decision persuasive, the Illinois Supreme Court certainly did not. And they ruled unanimously in Mr. Emanuel’s favor (although two, Justices Freeman and Burke, concurred on distinguished grounds). That will end this debate once and for all. Welcome Mayor Emanuel.

  1. earlofhuntingdon says:

    Ah, it’s the old “the law has been fixed since the 19th century and we are only reversing a “novel” standard invented by an errant lower court” argument. Funny how an apparent lack of obvious, clear and explicit “settled” law leads to so many legal actions anyway. Must be the lawyers; couldn’t possibly be gaps in the law that reasonable minds could differ on how to fill.

    Yes, welcome, Lord Emanuel, to your appointment as head of Chicago, Inc.

  2. earlofhuntingdon says:

    I think the concurring justices, Freeman and Burke, captured the problem here better than the majority, whose vituperative tone (not present in the appellate court’s or the election board’s opinions) suggests irritation that it had been drawn into a hot political dispute in Chicago it didn’t want to touch with a ten foot pole:

    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.

    • bmaz says:

      It was interesting that the Supreme Court relied on the 150 year old Smith case as its linchpin, a case given fairly short shrift – probably due to its age – by both sides below. Although to be fair, Smith was at least somewhat part of the Baumgartner and Walsh lateral Court of Appeals cases, that briefly distinguished in the majority below and substantial in the dissent below. The bottom line is the Supreme Court found the Court of Appeals holding unfair and decided to fix it. I can understand the sentiment, but still think they so ruled with little deference to the clear wording of the law and on a stare decisis foundation nowhere near as firm as they claim. So be it, it is what it is.

      • earlofhuntingdon says:

        I agree. The consequences of the appellate court’s reasoning offended them and they fixed it, as the concurring justices indicated, without regard to the real problem: the ambiguity and lack of settled law, including their own prior decisions. I imagine that was so, in part, because they had to fix Rahm’s problem quickly, so that he would be both on the ballot and subject to as little adverse publicity as possible.

        The result of the Supreme’s decision isn’t necessarily wrong; it, too, seems rational and fair. It’s reasoning, however, crafts certainty out of thin air. It belittles the problem, seemingly out of pique. The problems with the underlying law in Chicago and the court’s own precedent it simply pixie dusted away, a means to an end that the concurring justices gently chided them about.

        And, yes, 150 year-old precedents are often so distinguishable as to be unhelpful, like citing such a precedent to decide a statutory question raised by the UCC – without parsing the UCC itself for an answer.

        • bmaz says:

          The result of the Supreme’s decision isn’t necessarily wrong; it, too, seems rational and fair. It’s reasoning, however, crafts certainty out of thin air. It belittles the problem, seemingly out of pique. The problems with the underlying law in Chicago and the court’s own precedent it simply pixie dusted away, a means to an end that the concurring justices gently chided them about.

          That is beautifully and perfectly stated. And I think EXACTLY correct.

    • MadDog says:

      Quite a pissy little opinion the Supremes have issued for themselves…

      As in: “What? You’re trying to ruin my weekend? Off with their heads!”

  3. perris says:

    I think what they just said was;

    “no other court should use this decision as a precedent”

    seems to me I’ve heard those lyrics before

  4. oldgold says:

    It was pissy, but you will get that when a State Supreme Court gets a whiff of a State Appellate Court making law as opposed to applying it.

  5. bmaz says:

    I will also note that nowhere, in either the majority or specially concurring opinions, is there even mention of the perfectly rational and compelling basis for the “residency” requirement contemplating a physical proximity, i.e. to be abreast and informed on the local issues and pulse that should be necessary to lead a municipality. Now, again, especially in this electronic information age, that concept would not seem to have quite the significance it once may have; nevertheless, it is a legitimate concept that certainly gives at least some foundation to the disparate treatment and additional requirement foe office holders versus mere voters. It would have been nice to have seen that at least discussed amid the hail of scorn by the majority.

  6. oldgold says:

    Yes, I fouled up the number.

    At comment #7 I was attempting to offer an explanation for the scornful tone of the Supreme Court’s opinion. This comment was not concerned with the substance of the Supreme Court’s opinion.

    Now, what is it about that comment you completely disagreed with?

    • earlofhuntingdon says:

      I disagreed with your claim that the Illinois appellate court was attempting to “make law”, to legislate from the bench. As the concurring justices on the Supremes made clear, it was the law that was not clear, neither the statute nor the prior decisions from the Supremes in 1867 or since. Both courts made reasonable interpretations of what they had to work with.

      The Illinois Supremes’s majority, however, arrogantly and dismissively claimed that wasn’t what they were doing. Their attitude was like the guy who keeps saying, “I’m in charge”, a strong indicator that whatever he is, in charge he isn’t.

      If you want examples of legislating from the bench, the current conservative members of the US Supreme Court provide better ones.

      • oldgold says:

        I did not say the Appellate Court was attempting to make law. I said that when a State Supreme Court gets a whiff that the Appellate Court is trying to make law they genarally react harshly.

        Rightly or wrongly, the Supreme Court did get a whiff that the Appellate Court was makng law. As they made clear here:

        (2) the novel standard adopted by the appellate court majority is without any foundation in Illinois law;

        And, yes, when it comes to a contest between a State Appellate Court and a State Supreme Court, the State Supreme Court is in charge. I do not understand how you can think otherwise.

        Finally, as to the third paragraph in your comment, we, at last, find common ground.

        • earlofhuntingdon says:

          The distinction between “making law” and getting a “whiff” of the same thing is a strikeout, as is the claim that I argued that decisions from a state’s highest court don’t take precedence over a lower court. My argument was that the Illinois supremes attacked a strawman by claiming that the law and its precedents were obvious and hadn’t changed since 1867. Their concurring justices said as much, too.

          “Making law”, in the sense of applying existing legal rules to novel circumstances is the very essence of the common law, as is following precedent when there’s nothing novel at all. It’s the Federalist Society that makes claims haranguing judges for “legislating from the bench”, which is odd in that its members do it much more often than their political opposition. What the FS really means by that characterization is that it doesn’t like the outcomes; it’s a way to attack the messenger when what you really want is a different message.

  7. Mary says:

    In the end, pissy or not, they make the law. What was done by them neatly was avoiding all the good statutory construction by the appellate court by dodging around it to focus on abandonment.

    IOW, they pretty much stepped back in time to well before the 1 year prior to the election and said if Rahm established that he had residence once upon a time, then he keeps it unless they can prove abandonment.

    So they pretty much avoid the distinctions of the statutory contstruct by using a backdoor – if the candidate ever would have met the standards, then the burden is on the other guys to prove that the candidate abandoned residency (making it solely an intent test). That leaves them free to ignore rules of statutory construction.

    It’s a bad decision, but it’s the decision. That’s how it always happens, bad facts/bad law. It’s bad facts to take someone like Chicago boy Rahm and pull him off a ballot. So they made bad law to get around it.

    • bmaz says:

      Yes. Predictable. And, sadly, especially so when you have the full and crystal clear weight of the President and White House weighing in. As if the Obama White House view could not have been deduced to start with, which it obviously could and would have been; having them step in and inject such a big, loud foot was pretty much a horse head left in the bed of the Illinois Supreme Court. It sure looks likely that ultimately the WH power play was not a tipping point in light of the unanimity of the decision; still it is disturbing. Ah well, so it goes, what teh hey, it’s Chicago!

      • earlofhuntingdon says:

        Undoubtedly, the phone lines were zinging between the justices and the state capital, the state capital and Chicago, and between both and Metro DC. More than one friendly reminder would have been passed about what’s good for Chicago is good for Illinois and every one of its elected and appointed officials.

        It may be the right outcome; common sense suggests it is. But the process is a good reminder that the law is not written on stone or marble tablets, it’s hot and alive and sometimes burns, and it does not exist in a political, economic or social vacuum.

  8. pdaly says:

    Abandonment: Isn’t Rahm famous for burning bridges? It’s a miracle he never once said ‘F**k Chicago, I’m moving to DC.’

  9. JohnLopresti says:

    I don*t think working in a White House administration means most folks who do that a few years would decide to quit their origins. Be machine politics what they may. He gets to chose to quit the executive in Washington DC and go back to where he had his career prior to the lofty calling to serve among the US President*s closest advisory personnel.

    Consider the contrast, when the Clintons exited their stay in WA DC. One set up a law practics in New York City; the other entering the US Senate as a senator from NY. The Clintons clearly preserved their past bonds with Arkansas, but adopted NY as a new residence.

    Still, residence is a chimerical and imprecise matter in electoral law, one which requires scrutiny on occasion‡. But I think the case against Emanuel was a contrivance which tested the bounds of credibility. This attempt to cause turbulence immediately preceding an election deserved the expedited repudiation it received in the IL Sup Ct.


    ‡ If the tea party gets a few successes in the House, I would expect some efforts at regional secessions. I do not know if Kansas is ready to revise and relive its statehood process history. Still, there were a few interesting times 160 years back, as territories joined the union, and voters endured place-of-residence scrutiny. Redmeat for Republicans and their cherished tea party contingent. Imagine; a simpler constitution; states rights. I think I have heard some of those arguments before, somewhere.