The Illinois supremes’ bare-knuckled opinion

Cite this Article
Larry Ribstein, The Illinois supremes’ bare-knuckled opinion, Truth on the Market (January 28, 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.