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Friend-of-court brief tossed in Emanuel case

Updated: September 24, 2012 6:25AM

The hearing officer in Rahm Emanuel’s residency case has tossed out a friend-of-the-court brief filed by 47 well-known attorneys who argued that Emanuel should be allowed to run for mayor.

The attorneys raised no new arguments that Emanuel’s attorneys had not already made, and four of the attorneys work at the Mayer Brown law firm, which is representing Emanuel in the case, hearing officer Joe Morris wrote.

Morris’ ruling on the friend-of-the-court brief does not necessarily signal his decision on Emanuel’s right to run for mayor, when he presents his findings to the Chicago Board of Elections on Wednesday.

Morris hopes to get his recommendation to the board in time for it to vote on it at its Thursday meeting.

“The hearing officer has examined the proposed brief and finds in it no argument that has not already been made,” Morris wrote.

Noting that Emanuel’s attorneys led by Mike Kasper and that the attorneys seeking to remove Emanuel from the ballot, led by Burt Odelson, “include some of the most expert members of the fraternity of Illinois election law specialists,” Morris said, “there is no basis for believing that counsel of record in this case will do an inadequate job of arguing the law to either the hearing officer or [the Board of Elections.]”

Morris noted a line of the friend-of-the-court brief stating, “none of the movants is currently serving on [Emanuel’s] campaign staff or is otherwise employed by Rahm Emanuel or his election campaign” appears to be “incorrect.”

Perhaps the four Mayer Brown partners among the 47 filing the brief were unaware that two of their partners, Michael Forde and Michael Gill, are on Emanuel’s legal team, Morris wrote. That means they are not “independent friends of the court,” Morris wrote.

The friend-of-the-court brief was unusual in that it contained six pages of argument — most of which Emanuel’s attorneys have already made — but seven pages of biographies of the arguers.

The list includes former Illinois Attorneys General Neil Hartigan and Tyron Fahner, former presidents of the Chicago and state bar associations, former White House counsel Abner Mikva, retired judges and law professors.

The list includes many attorneys who did not specialize in election law but who endorse Emanuel’s attorneys’ theory that Emanuel is presumed to keep the Chicago residents status he earned as a congressman unless he takes some action to end it, such as registering to vote in another jurisdiction — which he never did.

The lead attorney arguing to bounce Emanuel from the ballot, Burt Odelson, called the brief “political propaganda.” He said a straight-forward reading of the State Municipal Code shows candidates for mayor must have “resided in the municipality at least one year preceding the election.” The only exception is for those on “active duty military service.”

The friend-of-the-court brief argued that the fact that Emanuel rented out his house while serving as chief of staff to President Obama no more ends his residency than President Lincoln leasing his Springfield home when he went to Washington ended his residency in the state.

They say the state election code, which deals with voting rights and requirements to run for state office and exempts those out of town on “service to the United States” should apply to Emanuel.

“Lawyers frequently answer the call to government service and because they wish to retain their ties to Chicago — to be able to participate fully in the civic life of their state and city, including running for office — they have a special interest in the issue raised in this proceeding,” the friends of the court argue in their brief.

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