The 1st District, (Cook County) 1st division appellate court is made up of four members: Shelvin Louise Marie Hall, Thomas E. Hoffman, Bertina E. Lampkin, Mary K. Rochford. Rahm lost in a 2-1 decision, in a written opinion.
Here's the actual decision.
The court chose a high standard on which to determine the appeal, and it laid out sufficient reasons in doing so. It reviewed the entire record de novo, ie, from the beginning without prejudging it. (translation: we make up our own minds, and look at the case as though it were never decided before)
Please take a look. Note how the Appellate Court dealt with "residence" vs. "domicile." (page 7 and onwards)
In analyzing the difference between the two, the Appellate Court compared and contrasted the differences between the statutes covering right to vote in an election and the right to run for office. That difference went a long way in putting Rahm behind the eight ball.
Here's what caught the Court's attention:
This inference is bolstered by language from the remainder of section 3.1-10-5. Subsection 3.1-10-5(d) provides that:
"If a person (i) is a resident of a municipality immediately prior to the active duty military service of that person or that person’s spouse, (ii) resides anywhere outside of the municipality during that active duty military service, and (iii) immediately upon completion of that active duty military service is again a resident of the municipality, then the time during which the person resides outside the municipality during active duty military service is deemed to be time during which the person is a resident of the municipality for purposes of determining the residency requirement under subsection (a)." 65 ILCS 5/3.1-10-5(d)
Did simply owning property in Chicago mean that he was a resident of the city? What about for the purpose of determining whether Rahm "resided in" Chicago. The court found that he clearly did not reside here. Tough luck, Rahm.
So what can Rahm do?
a) He can ask the appellate court for a rehearing under Rule 367. Unfortunately, time is his enemy. Even if the court was willing to speed up the process, it would be virtually impossible for the whole appellate court to read all the briefs, follow up on the caselaw cited on both sides, and and task the justices' clerks to read everything and understand the subtle concepts involved.
Given that he already lost at this level, it would not be prudent to expect a different result simply by asking for a rehearing. Also, Hoffmann, one of the authors, is a rather brilliant judge. His logic is often followed by others.
To support his argument he would be limited to 27 pages, laying out his original argument, PLUS explaining to fellow appellate court justices, why two of their friends were complete idiots in ruling against him initially. Not a good place to be, trust me. I've been there.
Time is his enemy here, too. Other than a simple denial of a rehearing, if the court contemplated granting the petition, the court must give the other side 21 days in which to respond. That means Rahm's opponents would have until Feb. 14 to file their response. Need I say what that does to a Feb 22 election date?
b) Seek immediate hearing from the Supreme Court under Rule 315(a)
The Supreme Court MAY agree to accept an appeal from the court of appeals decision, but only where it wants to. The court, not surprisingly, rarely does this. They prefer to deal with constitutional issues, criminal issues, or as required by statute, certain family law issues that require immediate answers as to custody, or guardianship, etc.
I cannot state how rare it is for the Supreme Court of Illinois to grant an emergency petition for immediate hearing. A bit like snowflakes mid August off of Lake Michigan. They already have a full docket. They already have oral arguments scheduled, which means that they have to read tons of shit just to prepare for previously set cases. I guarantee you that the court will treat Rahm just like any other litigant. "Sure, it is important to you, and yes, there is an election coming four weeks, but you gotta stand in line, buster."
Normally a party has 35 days to appeal an appellate decision. Rahm cannot wait that long, given the 28 days before the election. Even if the court decides to grant his request for an appeal, that process alone will take at least a week. By the time the supreme court has the briefs (Under the Rules, Rahm can rely on his appellate briefs, although that would be ineffably stupid, given where those appellate briefs got him in the first place. He can supplement ((in order to attack the adverse Appellate analysis)), or he can file an entirely new brief ((His best bet, given his loss)) ) it will simply be far to late for any favorable ruling to help him. Would the Supremes risk creating chaos in every other muni election, by carving out special conditions, simply to help Rahm? Hah.
There is a good chance the court would simply reject his request for leave to appeal. That would end Rahm's chances during this election cycle.
c) His last choice - an appeal as a matter of right under Rule 317
This provision was abused so badly by litigants in the past, that the Court was forced to change its procedure. Now, to make the case that you have an appeal as a matter of right, you have to file sufficient material to explain why you, as the litigant, have that right. Normally, this is reserved for constitutional questions, custody issues, guardianships, etc, where people's lives are at stake. IF you rely on this provision, and the court does not agree that you have the right to appeal as a matter of right, you just wasted a week or two of time, and the chances are that the court will probably reject your request for an appeal under Rule 315 as well.
An unhappy non-resident, non-candidate for a municipal election? A matter of right? hardly.
If, and it is a big if, Rahm convinces the court that it is an emergency, and if they agree to hear the petition on that basis, the other side still gets to respond. Not merely a day, but more like a week. So, we are still dealing with something 14 days from now.
Well, that is a thumbnail sketch of the huge legal problems that Rahm faces. There is also one HUGE practical one:
Time is so short that the city has issued the order that the ballots be printed. Now. Today. The order is out, and the ballot make up cannot be changed midstream. They will not be reprinted to help Rahm get on the ballot. They will not be junked simply to be reprinted with his name. There won't be an army of Rahmites working hard to plaster a sticker on the ballots adding his name to the mix on 2-300,000 ballots. Perhaps more, given our population of 3,000,000
The ballots will be sealed for security purposes. The Voting machines will be programmed without his name. Notices, and voting judges will prepare for the election without Rahm on the ballot. The ballots will be sent out to the hundreds of muni polling places at least a week in advance of the voting. (if they delayed that even a bit, past history has proven that not all polling stations get the ballots on time).
We have early voting in Illinois. Guess who will not becoming to dinner on the early ballots. Guess who won't be on the general ballots for February 22, 2011. Guess who will not be president Da Mare of Chicago. It looks like Rahm's goose is cooked. Unless the Supremes do something completely out of character and reverse the appellate court in 48 hours.