The Illinois supremes’ bare-knuckled opinion

Larry Ribstein —  28 January 2011

A couple of days I noted:

The majority opinion in the appellate court makes a pretty good case that (1) even if Emanuel’s a legal resident for voting purposes he has not physically resided in Chicago for the last year, as the statute arguably requires of candidates; and (2) the exception for service to the US applies only to voters and not candidates.  (The dissent’s best argument is that there’s no clear statutory standard for physical residence.  But even Emanuel would have to admit he didn’t physically reside in Chicago for the last year whatever the standard is.)

The Illinois supreme court has now reversed the appellate court and allowed Rahm to run for mayor.  The court held that the sole issue is Rahm’s legal residence and that the appellate court had no legal basis for holding otherwise.  But two concurring justices suggested the issue was not so clear:  

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. 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 abode 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.

The Supreme Court was probably right on balance under the facts found by the trial court, but it’s a close case.  If you really move out of your Chicago house and take a full time job in Washington you don’t necessarily still live in Chicago just because you plan to return there some day and run for office.   Illinois law is better interpreted to say that before a Washington pol runs again in the midwest he needs some time reacquaint himself with the real world.

The most interesting aspect of the concurring opinion was its criticism of the majority’s rhetoric suggesting that the appellate court decision was wholly unwarranted, noting editorials that had already appeared in the Chicago papers slamming the appellate court (Judicial Arrogance, Chicago Tribune, Jan. 25, 2011, at 14; Rahm Ruling a Disservice to Voters , Chicago Sun-Times, Jan. 25, 2011, at 21).  Obviously the situation was exacerbated by the politically heated nature of the issue.

The case illustrates that not all the excessive rhetoric these days is by right-wing talk show hosts.  The supreme court justices’ excess was less excusable.  Judges are expected, after all, to be “judicious,” particularly if they sit on a state’s highest court. Given that lay people already doubt the law’s evenhandedness, particularly in Illinois, and particularly in this case, one would think that the justices would have been on their best behavior. 

Larry Ribstein

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Professor of Law, University of Illinois College of Law

8 responses to The Illinois supremes’ bare-knuckled opinion

  1. 

    given that Ill. Sup. Ct. Justices come from geographic districts and had nothing to gain from a ruling for Rahm, it was stunning that they took up the case at all. They had nothing to gain except voter animosity at the next election. Thus, the opinion is very strong that Rahm was right on the law.

    The case was a very simple one–there is no justice in declaring a person to be without a City (or country). Thus, until a new residence is obtained the old remains. Beyond that, any serious student of the law (Ribstein is not, he is a partisan, with an agenda) would realize that today, no other test would work. Look at all the people in Congress who, depending on personal financial circumstances, sleep in their office to houses run by religious fanatics to house boats, to Georgetown homes. What “rule” could be fairly applied, other than to say, going to Washington “doesn’t count?” If you buy a house and move your family to Washington so that you can be close to your children you loose your residence but if you stay in a hotel or apartment and fly home in your private jet you don’t? Madness

    By the way, no one on this list has a greater dislike of Rahm.

  2. 

    “The case illustrates that not all the excessive rhetoric these days is by right-wing talk show hosts.”

    True. It appears to extend to right-wing supreme court justices too. Thankfully, the liberal justices from Cook County stepped in to calm down the rhetoric.

  3. 

    I thought the appellate court opinion was terribly reasoned and terribly written. Given that perspective, I felt the Illinois Supreme Court did exactly the right thing in clearly and unambiguously pointing out exactly where the appellate court had gone so terribly wrong. I happen to agree with the Supreme Court that none of the statutory language suggests a different legal definition of “residence” for the Municipal Code as opposed to the Election Code, and the appellate court’s second-guessing of the Smith case (1867), where they essentially said the higher court really meant domicile even though they said residence, was completely inappropriate for an intermediate appellate court to do. I think the Supreme Court was absolutely right to criticize the appellate court so strongly on those grounds, at least.

  4. 

    Chris,

    The inflammatory rhetoric was just icing on the cake. The real criticism comes because the Supreme Court overturned “well-settled” law on the matter, all the while criticizing the lower court for that same behavior. They relied exclusively on a single case from the 1800s and completely ignored a number of more recent Supreme Court decisions with contrary holdings. They’re free to do that, of course, but they probably shouldn’t pretend that there was only one possible outcome or that the law was “well-settled,” at least “well-settled” in that it conforms with their newly created standard.

    Of course, a lot of criticism also stems from the fact that they decided on a very broad issue (what “resident” means), overturning a history of case law and regulations to the contrary, which will have a broad impact with effects that we probably cannot even foresee, yet, when they could have decided the issue in a much narrower scope by deciding the issue presented: does leasing your permanent abode affect its status as your permanent abode?

  5. 

    I see at most evidence of intemperateness, not of corruption. As to why the Court’s “rhetoric” was somewhat unrestrained, I think we need to look at the conditions under which they were working. Because early voting begins next Monday, the Court had to decide the case very quickly so that the right names (and only the right names) would be on the ballot. So the opinion did not have the usual time for editing etc. If the Court had had the normal time for writing the opinion, as in the regular non-emergency case, no doubt some of the Court’s language would have been toned down. But if the only real criticism of the opinion is that the Court should have politely rather than impolitely told the court of appeal that it was wrong, then I don’t see that as a major problem.

  6. 

    “4. The real question is who owns the Illinois Supreme Court? and what does he want to see happen?”

    I will now take a victory lap.

  7. 

    Illinois is a joke. I am willing to say anyone who sits in office there is corrupt. I don’t know about you, but the word “rhetoric” is starting to get old. Good information, nice post. We have to address each case of corruption that comes up. Our country has gone on too long letting politicians take advantage of its citizens.