The Doctrine of Nullification claimed as authority to obviated recent federal health care legislation
State lawmakers in Alabama, Idaho, Kansas, Maine, Missouri, Montana, Oregon, Nebraska, Texas and Wyoming are considering adopting legislation to avoid the federal government’s efforts to “overhaul health care” pursuant to the so-called Doctrine of Nullification.
The Doctrine, attributed to President Thomas Jefferson among others, purports to give States the ultimate authority insofar as the implementation of acts of Congress is concerned and is typically linked to the 10th Amendment of the United States Constitution. The Tenth Amendment provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
A book printed by the U.S. Government Printing Office, The Constitution of the United States of America [Analysis and Interpretations, 1964], and prepared by the Legislative Reference Service of the Library of Congress, states that “The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted” with respect to the division of power between the federal government and the States.
As to the Doctrine of Nullification,* the United States Supreme Court, in the context of a 14th Amendment school desegregation case,** rejected the concept, stating that "Although ‘the responsibility for public education is primarily the concern of the States ..., such responsibilities ... must be exercised consistently with federal constitutional requirements as they apply to state actions.’ Consequently, ‘a Governor who asserts a power to nullify a federal court order’ implementing that ruling is subject to judicial restraint, for otherwise ‘the fiat of a State Governor and not the Constitution ... would be the supreme law of the land..."
* See The Constitution of the United States of America, U.S.G.P.O., Page 1035, Footnote 2.
** Cooper v Aaron, 358 US 1, 18-19, [1958].
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
Jan 28, 2011
Illinois Supreme Court rules that Rahm Emanuel a "resident" for the purpose of running for mayor of Chicago
Illinois Supreme Court rules that Rahm Emanuel a "resident" for the purpose of running for mayor of Chicago
Walter P. Maksym Et Al. , Appellees, v The Board of Election Commissioners of the City of Chicago, Supreme Court of the State of Illinois, Docket No. 111773.
Reversing the Appellate Court, the Illinois Supreme Court essentially equated the term “residence” as used in §3.1-10-5(a) of the City’s Municipal Code to “domicile.”* The court, noting that “until just a few days ago, the governing law on this question had been settled in this State for going on 150 years,” citing Smith v. People ex rel.Frisbie , 44 Ill.16 (1867), sustained the decision of Chicago's Board of Elections that Rahm Emanuel was eligible to run for the office of Mayor of the City of Chicago.
The Supreme Court explained that “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.”
* NYPPL earlier suggested that “Essentially the [Illinois Supreme Court] will decide if the term “residence” as used in §3.1-10-5(a) of [Chicago's] Municipal Code means “domicile” or something other than "domicile” [see http://publicpersonnellaw.blogspot.com/2011/01/legal-distinction-between-domicile-and.html ]
The decision is posted on the Internet at:
http://www.scribd.com/doc/47691816/Illinois-Supreme-Court-Decides-Rahm-Emanuel-Can-Run-in-Chicago-Mayoral-Election?DCMP=NWL-cons_breakingdocs
Walter P. Maksym Et Al. , Appellees, v The Board of Election Commissioners of the City of Chicago, Supreme Court of the State of Illinois, Docket No. 111773.
Reversing the Appellate Court, the Illinois Supreme Court essentially equated the term “residence” as used in §3.1-10-5(a) of the City’s Municipal Code to “domicile.”* The court, noting that “until just a few days ago, the governing law on this question had been settled in this State for going on 150 years,” citing Smith v. People ex rel.Frisbie , 44 Ill.16 (1867), sustained the decision of Chicago's Board of Elections that Rahm Emanuel was eligible to run for the office of Mayor of the City of Chicago.
The Supreme Court explained that “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.”
* NYPPL earlier suggested that “Essentially the [Illinois Supreme Court] will decide if the term “residence” as used in §3.1-10-5(a) of [Chicago's] Municipal Code means “domicile” or something other than "domicile” [see http://publicpersonnellaw.blogspot.com/2011/01/legal-distinction-between-domicile-and.html ]
The decision is posted on the Internet at:
http://www.scribd.com/doc/47691816/Illinois-Supreme-Court-Decides-Rahm-Emanuel-Can-Run-in-Chicago-Mayoral-Election?DCMP=NWL-cons_breakingdocs
Jan 27, 2011
Extending the probationary period
Extending the probationary period
Subway-Surface Supervisors Assn. v New York City Tr. Auth., 2010 NY Slip Op 52339(U), Supreme Court, New York County, Judge Saliann Scarpulla, [Not selected for publication in the Official Reports.]
Subway-Surface Supervisors Association brought an action seeking to have the court void “stipulations of settlement” between the Association and the Authority.
The Association and the Authority had to increase the one-year probationary term for certain employees upon their promotion to a Supervisor position to a two-year probationary period. Shortly before the expiration of their two-year probationary periods, these Supervisors entered into a settlement agreement with the Transit Authority after the Authority had determined that had taken “excessive sick leave during their two-year probationary period.”
As probationary employees, the Supervisors were not entitled to a disciplinary hearing concerning the sick leave violations and each agreed to serve a two year disciplinary probation during which any violation of time and leave would result in dismissal.
The Association argued that the Supervisors already served the maximum amount of probation and further extension was not permitted under Title 55 of the Rules of the City of New York, Section 5.2.8.* In addition, the Association claimed that the Transit Authority failed to get “written authorization to extend the probationary period from the Commissioner of Citywide Administrative Services.” Finally, the Association contended that even if the extension was permitted, its length was “impermissible.”
The Authority, on the other hand, claimed that it had found that Supervisors had unsatisfactory attendance or excessive absenteeism and although these problems were. serious enough to justify their termination, it decided to give them a last chance to salvage their promotions. This, said the Authority, resulted the Supervisors agreeing to a last chance settlement that would allow them to keep their promotions by agreeing to a two-year disciplinary probation.
During that two-year disciplinary probation, any further time and leave violations would result in their dismissal should the arbitrator find that they had committed such further violations.
Supreme Court found that the Stipulations were not “an extension of any probationary period” but constituted a separate probation imposed for disciplinary purposes, freely entered into by the Supervisors.
* The general rule with respect to extensions of the probationary period for employees in the Classified Service is that in the event a probationary employee is absent during his or her probationary period, typically that employee’s probationary period is automatically extended for a period equal to the time the probationer was absent [see Matter of Mazur, 98 AD2d 974]. For example, 4 NYCRR 4.5(f), a Rule adopted by the State Civil Service Commission pursuant to the authority set out in Civil Service Law Section 63.2, provides that with respect to employees of the State as an employer, “the minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his [or her] absence which ... are not counted as time served in the probationary term.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_52339.htm
Subway-Surface Supervisors Assn. v New York City Tr. Auth., 2010 NY Slip Op 52339(U), Supreme Court, New York County, Judge Saliann Scarpulla, [Not selected for publication in the Official Reports.]
Subway-Surface Supervisors Association brought an action seeking to have the court void “stipulations of settlement” between the Association and the Authority.
The Association and the Authority had to increase the one-year probationary term for certain employees upon their promotion to a Supervisor position to a two-year probationary period. Shortly before the expiration of their two-year probationary periods, these Supervisors entered into a settlement agreement with the Transit Authority after the Authority had determined that had taken “excessive sick leave during their two-year probationary period.”
As probationary employees, the Supervisors were not entitled to a disciplinary hearing concerning the sick leave violations and each agreed to serve a two year disciplinary probation during which any violation of time and leave would result in dismissal.
The Association argued that the Supervisors already served the maximum amount of probation and further extension was not permitted under Title 55 of the Rules of the City of New York, Section 5.2.8.* In addition, the Association claimed that the Transit Authority failed to get “written authorization to extend the probationary period from the Commissioner of Citywide Administrative Services.” Finally, the Association contended that even if the extension was permitted, its length was “impermissible.”
The Authority, on the other hand, claimed that it had found that Supervisors had unsatisfactory attendance or excessive absenteeism and although these problems were. serious enough to justify their termination, it decided to give them a last chance to salvage their promotions. This, said the Authority, resulted the Supervisors agreeing to a last chance settlement that would allow them to keep their promotions by agreeing to a two-year disciplinary probation.
During that two-year disciplinary probation, any further time and leave violations would result in their dismissal should the arbitrator find that they had committed such further violations.
Supreme Court found that the Stipulations were not “an extension of any probationary period” but constituted a separate probation imposed for disciplinary purposes, freely entered into by the Supervisors.
* The general rule with respect to extensions of the probationary period for employees in the Classified Service is that in the event a probationary employee is absent during his or her probationary period, typically that employee’s probationary period is automatically extended for a period equal to the time the probationer was absent [see Matter of Mazur, 98 AD2d 974]. For example, 4 NYCRR 4.5(f), a Rule adopted by the State Civil Service Commission pursuant to the authority set out in Civil Service Law Section 63.2, provides that with respect to employees of the State as an employer, “the minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his [or her] absence which ... are not counted as time served in the probationary term.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_52339.htm
Negligent hiring and retention of an employee
Negligent hiring and retention of an employee
Anonymous v Dobbs Ferry UFSD, 290 AD2d 464
In the Dobbs Ferry case, New York State Supreme Court Justice Donovan considered a number of important issues, including allegations that the district, and its school superintendent and a middle school principal [“the district”], were guilty of negligent hiring and retention of Steven Nowicki as a teacher.
The decision, which considered various motions to dismiss the action and to amend the complaint preliminary to a trial on the merits, reports that the parents of one of Nowicki’s students invited Nowicki to a New Year’s Eve party. Nowicki, it was alleged, became intoxicated at the party and, at the suggestion of the parents, spent the night at their home rather than risk driving to his own home. The complaint charged that Nowicki later that night sexually assaulted his student, and the student’s younger brother, in their bedroom.
The district asked the court to dismiss the complaint, contending that they cannot be held liable for an incident that occurred outside the school’s premises at a private function for a number of reasons, including:
1. A school’s duty toward its pupils extends only as far as physical custody and control over the pupils and that duty ceases once the pupils have passed out of the school’s orbit of authority.
2. Because of a superseding factor -- the parents invited Nowicki into their home -- any negligent hiring would not be the proximate cause of the alleged injuries.
3. The criminal acts allegedly committed by Nowicki were outside the scope of his employment, and therefore cannot be attributed to the district or its superintendent or principal under the doctrine of respondeat superior.
In response to the district’s motion to dismiss the action on the theory that the school has no duty to supervise a student once he or she has left the custody and control of the school, the court ruled that the location of the incident was irrelevant and declined to grant the district’s motion.
The district appealed. The Appellate Division ruled that Supreme Court improperly denied the district’s cross motion for summary judgment dismissing the complaint with respect to it.
The Appellate Division said that the district had made a prima facie showing of its entitlement to judgment as a matter of law by establishing that any nexus between Nowicki's employment at the district and his alleged sexual molestation of the infant plaintiffs was severed by time, distance, and the intervening independent actions of their parents, citing Cardona v Cruz, 271 AD2d 221; K. I. v New York City Bd. of Educ., 256 AD2d 189; McDonald v Cook, 252 AD2d 302; and Lemp v Lewis, 226 AD2d 907, in support of its ruling.
Anonymous v Dobbs Ferry UFSD, 290 AD2d 464
In the Dobbs Ferry case, New York State Supreme Court Justice Donovan considered a number of important issues, including allegations that the district, and its school superintendent and a middle school principal [“the district”], were guilty of negligent hiring and retention of Steven Nowicki as a teacher.
The decision, which considered various motions to dismiss the action and to amend the complaint preliminary to a trial on the merits, reports that the parents of one of Nowicki’s students invited Nowicki to a New Year’s Eve party. Nowicki, it was alleged, became intoxicated at the party and, at the suggestion of the parents, spent the night at their home rather than risk driving to his own home. The complaint charged that Nowicki later that night sexually assaulted his student, and the student’s younger brother, in their bedroom.
The district asked the court to dismiss the complaint, contending that they cannot be held liable for an incident that occurred outside the school’s premises at a private function for a number of reasons, including:
1. A school’s duty toward its pupils extends only as far as physical custody and control over the pupils and that duty ceases once the pupils have passed out of the school’s orbit of authority.
2. Because of a superseding factor -- the parents invited Nowicki into their home -- any negligent hiring would not be the proximate cause of the alleged injuries.
3. The criminal acts allegedly committed by Nowicki were outside the scope of his employment, and therefore cannot be attributed to the district or its superintendent or principal under the doctrine of respondeat superior.
In response to the district’s motion to dismiss the action on the theory that the school has no duty to supervise a student once he or she has left the custody and control of the school, the court ruled that the location of the incident was irrelevant and declined to grant the district’s motion.
The district appealed. The Appellate Division ruled that Supreme Court improperly denied the district’s cross motion for summary judgment dismissing the complaint with respect to it.
The Appellate Division said that the district had made a prima facie showing of its entitlement to judgment as a matter of law by establishing that any nexus between Nowicki's employment at the district and his alleged sexual molestation of the infant plaintiffs was severed by time, distance, and the intervening independent actions of their parents, citing Cardona v Cruz, 271 AD2d 221; K. I. v New York City Bd. of Educ., 256 AD2d 189; McDonald v Cook, 252 AD2d 302; and Lemp v Lewis, 226 AD2d 907, in support of its ruling.
Individuals performing services for a public employer may be designated "non-employees" by statute
Individuals performing services for a public employer may be designated "non-employees" by statute
Levitt v NYC Office of Collective Bargaining, 273 AD2d 104
For the purposes of collective bargaining Article 14 of the Civil Service Law -- the Taylor Law -- applies to all individuals in the services of a public employer except judges, individuals in the military service and public employees designated managerial or confidential.*
The point made clear by the Levitt decision -- individuals who might otherwise satisfy the criteria for public employment, and thus otherwise covered by the Taylor Law, may be denied such status by statute.
Kenneth Levitt challenged a ruling by New York City’s Office of Collective Bargaining [OCB] declaring that four hearing examiners employed by the city’s Parking Violations Bureau [PVB] were ineligible for inclusion in a collective bargaining unit representing city employees.
OCB’s rationale: Section 236(2)(d) of the Vehicle and Traffic Law provides that [s]uch hearing examiners shall not be considered employees of the city in which the administrative tribunal has been established.**
The Appellate Division, First Department, agreed, ruling that [g]iven this clear statutory language, the PVB hearing officers cannot be considered City employees entitled to collectively bargain pursuant to the Taylor Law even though, as OCB found following a hearing, in all other respects these hearing officers meet the criteria for public employment.
Does Levitt have any recourse? Perhaps. As the court pointed out, this was an issue for the Legislature, not the courts, to address.
* Certain individuals have been declared managerial or confidential within the meaning of the Taylor Law by statute.
** Civil Service Law Sections 210 - Prohibition against strikes - and Section 211 - Injunctive relief to prohibit a strike - specifically apply to judges, military personnel and managerial or confidential employees within the meaning of the Taylor Law. Presumably these provisions would not apply to Section 236(2)(d) hearing examiners as the incumbents of such positions are not employees of the jurisdiction in which they serve.
Levitt v NYC Office of Collective Bargaining, 273 AD2d 104
For the purposes of collective bargaining Article 14 of the Civil Service Law -- the Taylor Law -- applies to all individuals in the services of a public employer except judges, individuals in the military service and public employees designated managerial or confidential.*
The point made clear by the Levitt decision -- individuals who might otherwise satisfy the criteria for public employment, and thus otherwise covered by the Taylor Law, may be denied such status by statute.
Kenneth Levitt challenged a ruling by New York City’s Office of Collective Bargaining [OCB] declaring that four hearing examiners employed by the city’s Parking Violations Bureau [PVB] were ineligible for inclusion in a collective bargaining unit representing city employees.
OCB’s rationale: Section 236(2)(d) of the Vehicle and Traffic Law provides that [s]uch hearing examiners shall not be considered employees of the city in which the administrative tribunal has been established.**
The Appellate Division, First Department, agreed, ruling that [g]iven this clear statutory language, the PVB hearing officers cannot be considered City employees entitled to collectively bargain pursuant to the Taylor Law even though, as OCB found following a hearing, in all other respects these hearing officers meet the criteria for public employment.
Does Levitt have any recourse? Perhaps. As the court pointed out, this was an issue for the Legislature, not the courts, to address.
* Certain individuals have been declared managerial or confidential within the meaning of the Taylor Law by statute.
** Civil Service Law Sections 210 - Prohibition against strikes - and Section 211 - Injunctive relief to prohibit a strike - specifically apply to judges, military personnel and managerial or confidential employees within the meaning of the Taylor Law. Presumably these provisions would not apply to Section 236(2)(d) hearing examiners as the incumbents of such positions are not employees of the jurisdiction in which they serve.
Ability to perform “light duty” defeats accidental disability retirement claim
Ability to perform “light duty” defeats accidental disability retirement claim
Matter of Roache v Hevesi, 38 AD3d 1036
Jerome J. Roache, a police officer, suffered a fracture of his left knee in an accident. He later returned to work in various restricted-duty positions, the most recent of which was as a property clerk.
Claiming that he could not fully perform the duties of a police officer, he filed an application for accidental disability retirement benefits with the New York State Employees’ Retirement System.
Finding that Roache was not permanently incapacitated because he was able to perform “his restricted duty assignment” satisfactorily for more than three years prior to his applying for accidental disability retirement, the Retirement System rejected his application for benefits.
The Appellate Division sustained the System’s determination, holding that there was substantial evidence in the record to support the System’s finding that Roach could perform his restricted duty work satisfactorily and thus he was not permanently disabled.
The court dismissed Roache’s appeal, noting that the medical records that Roache had submitted in support of his application contained an opinion from an orthopedic surgeon that he was "able to do light duty."
Matter of Roache v Hevesi, 38 AD3d 1036
Jerome J. Roache, a police officer, suffered a fracture of his left knee in an accident. He later returned to work in various restricted-duty positions, the most recent of which was as a property clerk.
Claiming that he could not fully perform the duties of a police officer, he filed an application for accidental disability retirement benefits with the New York State Employees’ Retirement System.
Finding that Roache was not permanently incapacitated because he was able to perform “his restricted duty assignment” satisfactorily for more than three years prior to his applying for accidental disability retirement, the Retirement System rejected his application for benefits.
The Appellate Division sustained the System’s determination, holding that there was substantial evidence in the record to support the System’s finding that Roach could perform his restricted duty work satisfactorily and thus he was not permanently disabled.
The court dismissed Roache’s appeal, noting that the medical records that Roache had submitted in support of his application contained an opinion from an orthopedic surgeon that he was "able to do light duty."
Jan 26, 2011
The legal distinction between domicile and residence
The legal distinction between domicile and residence
Maksym v Board of Election Commissioners, appeal from 2010 COEL 020, #1-1-0033
Rahm Emanuel’s claim that he is eligible to run for the office of Mayor for the City of Chicago will be considered by the Illinois State Supreme Court shortly. Essentially the case will decide if the term “residence” as used in §3.1-10-5(a) of the City’s Municipal Code means “domicile” or something other than "domicile."
In the words of the Appellate Court of Illinois, First Division:
As noted, the operative language at issue requires that a potential candidate have "resided in" the municipality for one year next preceding the election. In its verb form, "reside" generally means, among other things, "to dwell permanently or continuously," or to "have a settled abode for a time." Webster’s Third New International Dictionary 1931 (1993). The word is considered to be synonymous with "live, dwell, sojourn, lodge, stay, put (up), [and] stop," but it "may be the preferred term for expressing the idea that a person keeps or returns to a particular dwelling place as his fixed, settled, or legal abode." Webster’s Third New International Dictionary 1931 (1993).
This suggests that Webster's Third may have created some confusion insofar as the traditional legal distinctions between “domicile” and “residence” are concerned.
Perhaps the provisions set out in Illinois Title 86: Revenue, Chapter I: Department of Revenue, Part 100 Income Tax, Section 100.3020 Resident (IITA Section 301) may be illuminating in this regard.
Section 100.3020 Resident (IITA Section 301) states that the term "resident" means an individual who is in Illinois for other than a temporary or transitory purpose during the taxable year or who is domiciled in Illinois but is absent from Illinois for a temporary or transitory purpose during the taxable year. The Title also states that “If an individual is domiciled in Illinois, he remains a resident unless he is outside Illinois for other than temporary or transitory purposes.”
The term “domicile,” states the statute, “has been defined as the place where an individual has his true, fixed, permanent home and principal establishment, the place to which he intends to return whenever he is absent. It is the place in which an individual has voluntarily fixed the habitation of himself and family, not for a mere special or limited purpose, but with the present intention of making a permanent home, until some unexpected event shall occur to induce him to adopt some other permanent home.
Examples provided by the Illinois Department of Revenue distinguishing between residence and domicile include the following:
1. Another definition of "domicile" consistent with the above is the place where an individual has fixed his habitation and has a permanent residence without any present intention of permanently removing therefrom.
2. An individual can at any one time have but one domicile. If an individual has acquired a domicile at one place, he retains that domicile until he acquires another elsewhere.
3. Thus, if an individual, who has acquired a domicile in California, for example, comes to Illinois for a rest or vacation or on business or for some other purpose, but intends either to return to California or to go elsewhere as soon as his purpose in Illinois is achieved, he retains his domicile in California and does not acquire a domicile in Illinois. Likewise, an individual who is domiciled in Illinois and who leaves the state retains his Illinois domicile as long as he has the definite intention of returning to Illinois.
4. On the other hand, an individual, domiciled in California, who comes to Illinois with the intention of remaining indefinitely and with no fixed intention of returning to California loses his California domicile and acquires an Illinois domicile the moment he enters the state. Similarly, an individual domiciled in Illinois loses his Illinois domicile: 1) by locating elsewhere with the intention of establishing the new location as his domicile, and 2) by abandoning any intention of returning to Illinois.”
A similar issue was considered by New York State's Court of Appeals in Longwood Cent. School Dist. v Springs Union Free School District, 1 NY3d 385.*
In Longwood the court said that:
On this appeal, we decide which of two school districts must bear the educational costs for children who, immediately before their placement in foster care, lived in a homeless shelter with their mother. The question is governed by Education Law §3202 (4) (a), and the outcome turns on where the children "resided" within the meaning of the statute.
Because the term is undefined, we must determine whether it means mere physical location or also includes an element of permanency. We hold that, under the statute, physical presence alone does not qualify as "residence," and therefore conclude that the Springs Union Free School District—the children's last permanent residence—is responsible for their instructional costs. "
The court explained: "Within the general scheme of Education Law §3202, this Court and the Department of Education have consistently interpreted residence as akin to domicile. Domicile requires bodily presence in a place with an intent to make it a fixed and permanent home (see Matter of Newcomb, 192 NY 238, 250 [1908])."
An early decision by the Illinois State Supreme Court is expected.
The Maksym decision by the Illinois Appellate Court is posted on the Internet at:
http://www.state.il.us/court/Opinions/AppellateCourt/2011/1stDistrict/January/1110033.pdf
* The Longwood decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2004/2004_00962.htm
Maksym v Board of Election Commissioners, appeal from 2010 COEL 020, #1-1-0033
Rahm Emanuel’s claim that he is eligible to run for the office of Mayor for the City of Chicago will be considered by the Illinois State Supreme Court shortly. Essentially the case will decide if the term “residence” as used in §3.1-10-5(a) of the City’s Municipal Code means “domicile” or something other than "domicile."
In the words of the Appellate Court of Illinois, First Division:
As noted, the operative language at issue requires that a potential candidate have "resided in" the municipality for one year next preceding the election. In its verb form, "reside" generally means, among other things, "to dwell permanently or continuously," or to "have a settled abode for a time." Webster’s Third New International Dictionary 1931 (1993). The word is considered to be synonymous with "live, dwell, sojourn, lodge, stay, put (up), [and] stop," but it "may be the preferred term for expressing the idea that a person keeps or returns to a particular dwelling place as his fixed, settled, or legal abode." Webster’s Third New International Dictionary 1931 (1993).
This suggests that Webster's Third may have created some confusion insofar as the traditional legal distinctions between “domicile” and “residence” are concerned.
Perhaps the provisions set out in Illinois Title 86: Revenue, Chapter I: Department of Revenue, Part 100 Income Tax, Section 100.3020 Resident (IITA Section 301) may be illuminating in this regard.
Section 100.3020 Resident (IITA Section 301) states that the term "resident" means an individual who is in Illinois for other than a temporary or transitory purpose during the taxable year or who is domiciled in Illinois but is absent from Illinois for a temporary or transitory purpose during the taxable year. The Title also states that “If an individual is domiciled in Illinois, he remains a resident unless he is outside Illinois for other than temporary or transitory purposes.”
The term “domicile,” states the statute, “has been defined as the place where an individual has his true, fixed, permanent home and principal establishment, the place to which he intends to return whenever he is absent. It is the place in which an individual has voluntarily fixed the habitation of himself and family, not for a mere special or limited purpose, but with the present intention of making a permanent home, until some unexpected event shall occur to induce him to adopt some other permanent home.
Examples provided by the Illinois Department of Revenue distinguishing between residence and domicile include the following:
1. Another definition of "domicile" consistent with the above is the place where an individual has fixed his habitation and has a permanent residence without any present intention of permanently removing therefrom.
2. An individual can at any one time have but one domicile. If an individual has acquired a domicile at one place, he retains that domicile until he acquires another elsewhere.
3. Thus, if an individual, who has acquired a domicile in California, for example, comes to Illinois for a rest or vacation or on business or for some other purpose, but intends either to return to California or to go elsewhere as soon as his purpose in Illinois is achieved, he retains his domicile in California and does not acquire a domicile in Illinois. Likewise, an individual who is domiciled in Illinois and who leaves the state retains his Illinois domicile as long as he has the definite intention of returning to Illinois.
4. On the other hand, an individual, domiciled in California, who comes to Illinois with the intention of remaining indefinitely and with no fixed intention of returning to California loses his California domicile and acquires an Illinois domicile the moment he enters the state. Similarly, an individual domiciled in Illinois loses his Illinois domicile: 1) by locating elsewhere with the intention of establishing the new location as his domicile, and 2) by abandoning any intention of returning to Illinois.”
A similar issue was considered by New York State's Court of Appeals in Longwood Cent. School Dist. v Springs Union Free School District, 1 NY3d 385.*
In Longwood the court said that:
On this appeal, we decide which of two school districts must bear the educational costs for children who, immediately before their placement in foster care, lived in a homeless shelter with their mother. The question is governed by Education Law §3202 (4) (a), and the outcome turns on where the children "resided" within the meaning of the statute.
Because the term is undefined, we must determine whether it means mere physical location or also includes an element of permanency. We hold that, under the statute, physical presence alone does not qualify as "residence," and therefore conclude that the Springs Union Free School District—the children's last permanent residence—is responsible for their instructional costs. "
The court explained: "Within the general scheme of Education Law §3202, this Court and the Department of Education have consistently interpreted residence as akin to domicile. Domicile requires bodily presence in a place with an intent to make it a fixed and permanent home (see Matter of Newcomb, 192 NY 238, 250 [1908])."
An early decision by the Illinois State Supreme Court is expected.
The Maksym decision by the Illinois Appellate Court is posted on the Internet at:
http://www.state.il.us/court/Opinions/AppellateCourt/2011/1stDistrict/January/1110033.pdf
* The Longwood decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2004/2004_00962.htm
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NYPPL Publisher Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL.
For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.
Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law.
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