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Rich Man, Poor Man: See How the Other Half Lives

Daniel J. Kelley 29 December 2010 2 Comments

The residency challenge to Rahm Emanuel’s mayoral candidacy moves across Washington Street to the 17th Floor of the Richard J. Daley Center today. A hearing was held this afternoon in the County Division which handles all election cases. Judge Mark Ballard presided today and the Court will hear legal arguments next Tuesday, January 4, 2011. Once the court enters its final order, the ruling is likely to be appealed.

When the Chicago Board of Election Commissioners adopted the recommendations of its hearing officer, Joseph A. Morris, and overruled the objections to Rahm Emanuel’s residency, Burton S. Odelson, one of the lead attorneys for two of the objectors, expressed his disappointment with the hearing officer’s report. He went so far as to describe the hearing officer’s report as “shallow.” Immediately upon the release of the electoral board decision, the two objectors represented by Odelson filed a timely petition for judicial review in the Circuit Court.

One wonders if the objectors’ lead attorney pondered the factual similarities and vastly different results obtained in an earlier electoral board decision, issued in 2003, while criticizing the Morris report?

In a previous electoral board case, Holmes v. Hayes, 03 EB-ALD-39, an objector, Andrew V. Holmes, Jr., sought to remove an aldermanic candidate, Larry D. Hayes, from the election ballot on the basis that he did not actually reside in the 17th Ward at the address listed on his nominating petitions.

The evidentiary hearing began when the objector called the candidate as an adverse witness. The objector then put on the building’s owner. The landlord’s contradictory testimony was that he was unfamiliar with the candidate and that the man did not live in the apartment building at 441 West 79th Street. The landlord further asserted that Larry D. Hayes was not the individual listed upon the apartment lease and that he was prepared to institute a forcible entry suit to evict the man from the premises.

It seemed curious that someone would take the extraordinary step of seeking to evict a person from an apartment after testifying that the same individual did not actually occupy the apartment, but this is a matter related to Chicago electoral politics after all and, as Mister Dooley once observed, “politics ain’t beanbag. “
The hearing officer assigned to the case would eventually place considerable reliance upon the landlord’s diligence and forthrightness.

In rebuttal, the candidate called his brother, James Hayes, as a witness. The witness testified that he leased a basement apartment at 441 West 79th Street, Chicago, Illinois, and that he lived there with two other persons, namely, his girlfriend and his brother, Larry Hayes. The apartment consisted of four rooms, including a living room, a bedroom with two beds, a kitchen and a bathroom. Larry D. Hayes and his brother, James, both claimed that the candidate paid a few hundred dollars in rent and that these were cash payments. James Hayes did not issue receipts to his brother.

The candidate’s documentation was scanty, but he did possess a voter’s registration card and a driver’s license which listed the building as his address. The hearing officer’s report subsequently questioned the fact that the license presented had been issued subsequent to the candidate filing his nominating petitions.
Another serious problem was that the address listed upon many of the petition sheets had been retyped after having been “whited out.”

Two other witnesses testified on behalf of the candidate that they were aware of his address on 79th Street. One stated that she had seen the candidate exiting from the door to the apartment building. This testimony was discounted by the hearing officer since neither witness actually visited the candidate in the basement apartment.

The hearing officer’s report concluded that the candidate’s future intentions as to remaining at the address were ambiguous since the candidate, himself, described his living arrangements as “temporary.” Furthermore, many of the man’s belongings had been placed in storage and were not in current use.

Why is this particular electoral board of any passing interest? The hearing officer was the same Joseph A. Morris who recommended that Rahm Emanuel be allowed to run for mayor in the February 22, 2011 election. In fact, some of the text and the general case citations provided in the Emanuel report appear to have been lifted verbatim from the text of the older Hayes report. There is one key difference: In the 17th Ward aldermanic race, Morris recommended to the Chicago Board of Election Commissioners that Larry D. Hayes be removed from the ballot for not satisfying the residency requirements. In both instances, the full board approved and adopted the recommendations made by Morris in relation to Emanuel and Hayes. Wealthy, lawyered up Rahm in, poor pro se candidate Larry out.

In some respects, it is interesting to compare and contrast how similar factual situations were addressed in completely opposite ways.

The Halpins have been listed on two leasing agreements for the property, including a recent extension of the original lease, but, nevertheless, the landlord, Emanuel is still considered a resident of the property that neither he nor his family members occupy simply by virtue of owning the real estate. Emanuel has not lived on the premises since January of 2009 and cannot resume occupancy until June of 2011. In the view of the Chicago Board of Elections, this is the equivalent of residency satisfactory for running for municipal office.

The fact that most of Rahm Emanuel’s belongings had been shipped to a rented house in the District of Columbia and other boxes were placed in storage proved to be of no consequence nor did his listing himself a part year resident of Illinois on tax returns that were amended and revised only after he entered the mayoral race as an active candidate and was challenged by objectors. As for the less fortunate Larry D. Hayes, the fact that many of his possessions were in storage was cited as proof that he was not a resident of the apartment in question. Similarly, his driver’s license was suspect for having been issued after he filed his nomination papers.

In the 2003 aldermanic challenge, hearing officer Morris took strong exception to “the sleeping arrangements” at the apartment. The final report suggested that it seemed incredible that three adults could occupy four rooms. In the case of Rahm Emanuel, however, we are to believe that “having a place to sleep” is of no import whatsoever. In fact, an obscure 1867 case held, among other things, that the intention of a resident to retain his former residency trumps physically having a place to sleep.

Like one of the Three Bears returning home after Goldilocks paid an unannounced visit to their cottage during their absence, Emanuel, who admitted under oath to having visited Chicago only twice during the past year before entering the mayoral race, could complain that “Someone has been sleeping in my bed!” Indeed, his bed was left behind in the bedroom now occupied by his tenants, Robert and Lori Halpin. How creepy! In actuality, Emanuel admitted on his two prior visits to Chicago that he checked into a hotel as the Hermitage Avenue house was occupied under the terms of the rental agreement.

The Chicago Board of Election Commissioners has previously held that a mayoral candidate must satisfy the one year residency rule in order to run for office. Murphy v. Rosenburg, 88 EB-SMAY-6. That case is now a mere anomaly. Morris, a former presidential appointee, placed great emphasis upon the fact that Emanuel had been serving as a presidential appointee during his extended absence from Chicago and did not, therefore, forfeit his residency notwithstanding the rental.

Cynics would point out the fact that Hayes was an obscure candidate while Emanuel is a powerful frontrunner and a celebrity. I think Jonathan Swift’s sage observation remains relevant to any further discussion of the subject and expresses this same sentiment more gracefully and succinctly: “Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.”

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Daniel J. Kelley is a regular columnist for “The Chicago Daily Observer.”

2 Comments »

  • Jim Ridings said:

    This is so suspenseful. I wonder how it will turn out. Will Rahm be declared eligible? Certainly his money and his power and influence will not be a factor, and there will be no “fix” in the decision. Things like that don’t happen in Chicago. If Obama doesn’t have to be born in America to be president, why should Rahn have to live in Chicago to be mayor?

  • Pat Hickey said:

    “Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.”

    There are no such Swiftian cobwebs a’tangle in this fine presentation, Mr. Kelley.

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