Rahm Emanuel’s residency case could make its way up to the Illinois Supreme Court, to be heard by Justice Anne Burke (center), wife of Chicago Alderman Edward Burke (right).

Rahm Emanuel’s residency challenge is heating up, and it will likely end up in the Illinois Supreme Court. “I can’t see either side losing and walking away from it,” says Sam Tenenbaum, a professor at the Northwestern University School of Law whose specialty is civil litigation.

Sitting on that top court is Justice Anne Burke, who is married to Ald. Ed Burke, a City Council heavyweight as chairman of the finance committee. Although he has not yet issued the endorsement, the 14th Ward alderman gives every signal of supporting one of Rahm’s serious challengers, Gery Chico. “Detest” is a word that I’ve heard used by political observers to describe Burke’s feelings toward Emanuel. In her latest column, the Sun-Times’ Carol Marin wrote, “Everybody knows Burke cannot stand Rahm Emanuel.”

Just as Tom Dart leaving the race was the best possible news for Rahm Emanuel; Emanuel getting knocked off the ballot would be a gift from the heavens for Gery Chico—and Ald. Burke.

So I wondered, if (or when) this case reaches the state Supreme Court, will his Supreme Court justice wife have to recuse herself? Both Tenenbaum and Jeffrey M. Shaman, a professor at DePaul University College of Law and an expert on judicial ethics, said that there is no legal reason for Justice Burke to recuse herself. In separate interviews, they each noted that what might have been expected one or two generations ago is not expected today when so many couples have dual, independent careers. 

If Ald. Burke were a party to the suit, or were himself among the candidates for mayor—for a brief time, he did toy with the idea of running—then, says Tenenbaum, Justice Burke would be wise to recuse herself. Professor Shaman notes, “So many women have entered the legal profession as attorneys and judges. The trend is not holding judges responsible for spouses’ actions because we recognize that spouses are independent persons and actors who have rights of their own. If we did [hold judges responsible for their spouses’ actions], an awful lot of judges would have to be disqualified.”

So does the residency challenge have legs? Tenenbaum thinks it does, and calls it  “pretty serious, not frivolous. I don’t know if [Emanuel] intended to move back here. Had Daley run again, would he have stepped down from the chief of staff position and taken a job outside of Chicago?” He adds, “I think it’s a real serious issue, just ask cops and firemen what residency means.”

A call to Ald. Burke via his press secretary was not returned by post time.

Photography: (Emanuel) Esther Kang; (Burkes) Chicago Tribune