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This just in… See AG Madigan’s case for yourself *** UPDATED WITH PRESSER TRANSCRIPT ***

Friday, Dec 12, 2008

*** Click here to read the transcript of AG Madigan’s press conference. ***

* 12:46 PM - Here it is…

* Brief [Alternative link]
* Motion for Temporary Restraining Order or Injunction [Alternative link]
* Supporting Record [Alternative link]

[Note: The pdf files don’t allow for copy and paste, so all spelling errors from here on out are probably mine, due to extreme time constraints.]

* The motion asks the Supreme Court to…

“enter emergency injunctive relief enjoining Mr. Blagojevich from acting as Governor and naming Lieutenant Governor as Acting Governor until such time as the Court resolves the merits of this action or otherwise determines that such disability has been removed.”

Alternatively, AG Madigan asks that Blagojevich be enjoined from exercising powers over filling the vacant US Senate seat, acting on legislation, directing state agencies with regard to negotiating and execution of contracts, directing activities of the IL Finance Authority and the tollway, and directing disbursement of state funds. LG Quinn should be given those responsibilities, Madigan argues.

* AG Madigan claims in the motion that “The people have a clearly ascertainable right in need of protection,” and they will “suffer irreparable harm if the injunction is not granted.”

“It is likely that Mr. Blagojevich’s future official actions will not be calculated to be in the best interest of the People, but rather will be designed to improve his public standing and his position with regard to the pending criminal charges. Furthermore, Mr. Blagojevich clearly will not be able to devote his attention to his official duties because of the pending charges and likely criminal trial.”

* More…

Without immediate action, the citizens of the State of Illinois face a prolonged period of illegitimate leadership from a Governor who no longer has the trust and confidence of the State’s citizens and its public officials. The citizens of Illinois face these harships at the very moment they are confronted with unprecedented political uncertainty and financial difficult, including a budgetary crisis, pending legislation, a vacant US Senate seat, and other significant challenges.

* Heading off an argment at the pass. From the brief…

Mr. Blagojevich may attempt to rely upon a brief exchange during the constitutional convention debates to argue that “disability” is somehow limited to physical or mental impairment, but such an argument fails.

During the convention debates, Delegate Davis was asked whether providing the General Assembly with the authority to estabish procedures to question and determine the “ability of the governor to serve” in what ultimately became 6(d) would impose additional eligibility requirements on the Governor…. And he responded that “other disability” referred to “the physical or mental capacity” of the governor and did not impose additional eligibility requires. But Senator Davis’s coment should not be read to limit the meaning of the phrase “other disability.”

As explained [above], the plain meaning of the phrase “other disability” and its context… establish that the term has a much broader scope than merely a physical or mental disability. In light of the plain language of this unambiguous term, it is inappropriate to resort to the constitutional convention debats at all. Where a constitutional provision is clear, this Court has “no occasion to consult the convention debates”: “a basic rule of statutory construction forbids a court to canvass legislative history for evidence of legislative intent if the meaning of a provision can be determined from its test. That principle applies equally to constitution interpretation.” […]

Indeed, if the framers had intended to limit the nature or scope of the “other disability” that may render the Governor unable to serve… they easily could have added “physical or mental” to modify “disability.” But they did not do so, and the decision not to add those terms must be given effect. [emphasis added]

Furthermore, the comments of one delegate not explicitly referencing the “other disability” language during the debate are of little import.

* Blagojevich unable to serve

The pervasive nature, volume, and severity of the illegal acts charged in the complaint indicate that Mr. Blagojevich is unable to distinguish between his financial interests and his official duties and between illegal and legal conduct, rendering hi incapable of legitimately exercising his authority as Governor. The nature and volume of those acts clearly evidence a disability that has rendered Mr. Blagojevich unable to serve.

* A look into future AG Madigan actions, perhaps? Check it out…

As a result of the federal complaint relating to his official acts, Mr. Blagojevich’s future official acts - many of which are the subject of the federal complaint - will be subject to challenge as illegal or improperly motivated.

- Posted by Rich Miller        

  1. - momoftwo - Friday, Dec 12, 08 @ 12:58 pm:

    This is sad that we have to go down this path. How much did this cost the state of Illinois? The people of Illinois should sue Blago for what this is going to cost us.

  2. - wordslinger - Friday, Dec 12, 08 @ 1:02 pm:


  3. - Thinking - Friday, Dec 12, 08 @ 1:03 pm:

    Exactly who defends this suit?

    The Gov’s office?
    The Gov personally?

    Who pays for it? The Gov can’t put on any meaningful defense on 5th Amend. grounds except for pure issues of law. (which could be sufficient). He can’t get into a factual dispute. I think this almost compels a resignation due to his inability to defend it.

  4. - Thinking - Friday, Dec 12, 08 @ 1:05 pm:

    Actually, the Gov could almost stipulate to the relief requested by the AG and thereby continue to draw a paycheck etc. and not resign.

  5. - hmmm - Friday, Dec 12, 08 @ 1:09 pm:

    Gov just signed a bill, hard to make case for disability…

  6. - Bill Baar - Friday, Dec 12, 08 @ 1:12 pm:

    ABC is saying the Gov could be out by the end of the day???

  7. - Dznuts - Friday, Dec 12, 08 @ 1:13 pm:

    “draw a paycheck and not resign” — kind of eerily similar to what he’s been doing the past couple of years anyway: hanging out at the ‘home office’, doing conference calls at 6am, catch a couple hours of SportsCenter before heading over to the campaign office, quick call to someone handling the day-to-day stuff at the JRTC, study the Tribune editorials, quick flight to Peoria for union photo op, fly back to Chicago, check in with the campaign folks, one more call to the JRTC for show, then catch up on late afternoon sports scores following a jog. What a life…

  8. - Don't Worry, Be Happy - Friday, Dec 12, 08 @ 1:14 pm:

    I don’t see the court acting on this. It’s well known that judges don’t like to involve themselves in disputes between branches of government, and besides this is a matter that is best settled politically rather than like this.

    Regardless, this would just be a bad precedent. We’ve heard the Speaker is reluctant to move forward with impeachment because he’s afraid that the precedent it sets will be used against Governor Lisa. I’d say this is far worse. Every week you’d have someone filing a petition with the court citing some reason why the sitting governor is unfit to serve.

    The impeachment process needs to start moving on Monday. I just don’t see any reason why not.

  9. - Leave a light on George - Friday, Dec 12, 08 @ 1:19 pm:

    Don’t worry I agree with you 100%. The legislature needs to do its job and impeach. Might not be the fastest way to get rid of Gov. F-Rod but the correct way. The process might be messy but this would have to be the easiest vote any of them cast.

  10. - Cheswick - Friday, Dec 12, 08 @ 1:20 pm:

    The Supreme Court should not touch this case. If they do, and there is later an impeachment and trial in the Senate presided over by the Supremes, Blagojevicy can say that the Supremes are not an impartial panel. This is too much of a hot potato.

    (I’m still reading the stuff.)

  11. - Ghost - Friday, Dec 12, 08 @ 1:20 pm:

    Thinking, he gts a Special Assitant Attorney general appointed. Also the 5th Amend does not apply to civil litigation. He need only deny everything and then require the AG to prove her case. I think the AG has a tough case with little evidence. The whol proceeding is built upon allegations from a seperate proceeding. but proving an allegation has ben made is not sufficient; and madigan appears to lack any of the actual evidence.

  12. - Ghost - Friday, Dec 12, 08 @ 1:21 pm:

    I bet the Supreme Court declares this a political question to be answered by the impeachment process and punts it out.

  13. - 2ConfusedCrew - Friday, Dec 12, 08 @ 1:22 pm:

    Looks like a home run to me
    Meanwhile the AccordianGal is doing interviews still blaming the National Gov Assoc. and Karl Rove for giving out cash for the sad sack campaign she ran….Give it up….Also blames Green Party —called Whitney a ‘nitwit” Grab a mirror tugboat annie :)

  14. - Bill Baar - Friday, Dec 12, 08 @ 1:23 pm:

    I think the AG has a tough case with little evidence.

    Me too… I don’t think she has any case. Disability Advocates ought to chime in on this too as a smear…. using Disability as a dodge for doing what the Legislature should be doing.

  15. - Rich Miller - Friday, Dec 12, 08 @ 1:26 pm:

    People, don’t just bloviate. Read it first.

  16. - Bill Baar - Friday, Dec 12, 08 @ 1:30 pm:

    Without immediate action, the citizens of the State of Illinois face a prolonged period of illegitimate leadership from a Governor who no longer has the trust and confidence of the State’s citizens and its public officials. The citizens of Illinois face these harships at the very moment they are confronted with unprecedented political uncertainty and financial difficult, including a budgetary crisis, pending legislation, a vacant US Senate seat, and other significant challenges.

    She could say this about Todd Stroger too. But he won a legit election.

    Bloviate or not, I don’t think she has a case.

    Maybe the Judges will go political and safe the House and Senate from doing the heavey lifting…but I don’t by the law here. This was intended for a clinical disability, not a political disability.

  17. - Will History Repeat Itself? - Friday, Dec 12, 08 @ 1:32 pm:

    August 5:
    “Smoking gun” tape recording released to public.

    August 6-7:
    Elected officials and American public demand Nixon’s resignation or impeachment.

    August 8:
    President announces resignation “to take effect at noon tomorrow.”

    August 9:
    Ford sworn into office.

    December 9: “Smoking gun” tape recording released to public.

    December 10-11:
    Elected officials and American public demand Blagojevich’s resignation or impeachment.

    December 12:
    John Harris resigns.
    Rod Balgojevich . . .?

  18. - Oberon - Friday, Dec 12, 08 @ 1:40 pm:

    A few weeks ago, a study was published, widely commented on by nationally-published pundits, bemoaning the abysmal level of civics knowledge by the general population, which was exceeded only by the ignorance of elected officials.

    One of the great features of this blog is the supposedly-elevated level of knowledge and expertise of its posters regarding both government and politics. Despite the admittedly long political experience of many who post here, after reading today’s comments on Lisa Madigan’s filing under Rule 382, I am forced to conclude that the results of the aforementioned study must have been derived from an Illinois sample.

    Whatever the motivations for her timing, LM did an excellent job during her news conference of explaining her action, what it means, and what it does not mean. It seems most of us were not paying attention.

    The basis of the action is NOT the federal complaint, but the resulting taint on any action the Governor might try to take. The Court’s action, or lack of it, will have no material affect on impeachment or any subsequent criminal indictment. The Governor is not entitled to defend himsself from this motion, unless the Court so decrees. AS LM explained, the Court has absolute discretion over how to handle this. Those concerned about bad precedent can rest easy; woe betide the attorney who files a frivolous motion under Rule 382! That could well be a career-ending move! This is not a substitute for impeachment, and LM strongly urged the GA to proceed with that process.

    This is the best of all worlds. Only her reticence in admitting that the Motion filed by the private citizens under Rule 382 is as fully legitimate as hers marred her performance today.

    And I think we can thank Bambanek et. al. for prodding LM to also file today. What matter who gets the glory, so long as the People are served?

  19. - Dznuts - Friday, Dec 12, 08 @ 1:44 pm:

    I don’t have a law degree from Pepperdine, but I thought LM and staff did a good job addressing the legal arguments - at least on a prima facia basis. I think the key phrase in the entire documents is “other disability”. Courts often are called upon to decide the meaning of words. Interesting also that they used the phrase “illigitimate” to refer to the Governor’s ability to lead right now.

  20. - Bubs - Friday, Dec 12, 08 @ 1:44 pm:

    It’s very thin on why he is “diabled.” In effect, she asks the Supreme Court to take what should be an objective determination (can he exercise the powers of the office) and asks them to decide on very subjective criteria (the criminal charges, the calls for resignation, he’s a bad guy, etc.)

    It still looks far to much like a coup d’etat. They likely will not do it, nor should they. If this is granted on such subjective grounds, what will be next - a future governor is “unfit” because his policies are not in the best interests of the people?

    This is an invitation to a slippery slope that the Court would be wise to decline.

    Impeach him.

  21. - Pot calling kettle - Friday, Dec 12, 08 @ 1:46 pm:

    From an objective standpoint, this case has plenty of merit from which the Supremes can act.

    The Affidavit produced by the feds calls into questions the motives behind the Gov’s actions. Because the activities cited by the feds cover many of the Gov’s official duties, until a court decides this case, ANY action the Gov takes will be questioned. Objectively, the Gov is not currently able to carry out his official duties. (The legislative leaders could back this up by telling the court they are unwilling to forward any legislation to the Gov. for a signature.)

    The Court should be able to say until the current situation is resolved, we need to let the LG act as Gov. In a lot of ways this is a good situation for everyone, no one has to say the Gov is guilty, just that magnitude of the Fed’s accusations are such that the Gov. cannot preform his duties.

  22. - Bill Baar - Friday, Dec 12, 08 @ 1:49 pm:

    The basis of the action is NOT the federal complaint, but the resulting taint on any action the Governor might try to take.

    Oh come on Oberon, since when has taint impeded anyone in Illinois.

    Heck, for some people taint means you can get things done.

    The frame is to cast the Gov as nuts. It won’t and shouldn’t work that way.

  23. - Six Degrees of Separation - Friday, Dec 12, 08 @ 1:51 pm:

    By signing the autism law today, the gov may be setting the groundwork for the defense that he is “capable” of governing.

  24. - Secret Square - Friday, Dec 12, 08 @ 1:51 pm:

    Hunting, I don’t KNOW why, but I’m guessing it was because she was professionally established under the name she had, and also to provide a little extra privacy for her husband and kids.

  25. - conservative one - Friday, Dec 12, 08 @ 1:53 pm:

    Whatever the outcome, Attorney General Madigan deserves kudos for the manner in which she conducted her press conference. She showed her professionalism, courtesy, and her intelligence! A welcome breath of fresh air in this awful situation.

  26. - Pot calling kettle - Friday, Dec 12, 08 @ 1:54 pm:

    The circumstances of the situation are not likely (I hope) to be repeated in the future. The Gov would not be removed, just temporarily disarmed. (For example, his bail agreement does not allow him to leave the country even though he has not been convicted.)

    If anything qualifies as a “coup d’etat” it would be impeachment. As I said above, this is better because it can have an air of neutrality. ie. “These charges are so serious, the Gov. needs to address them without have the burden of governing, while at the same time not suffering the serious penalty of removal from office before the courts have had a chance to act on the merits of the case.”

  27. - Downstate Commissioner - Friday, Dec 12, 08 @ 1:59 pm:

    Hard to believe that Lisa didn’t wait until next week, kind of forces her dad’s hand.
    Don’t think she has a case? You guys are out of it. She doesn’t have to prove beyond a shadow of doubt to 12 “peers”, she only has to convince a couple of people who will be actually writing the law as they go.

  28. - Pot calling kettle - Friday, Dec 12, 08 @ 2:00 pm:

    But now, people will be wondering why he signed that autism law? Did someone pay him to sign it? (If there has been a donation to the governor’s campaign fund by an autism advocate in the last month or two…) Or did he sign it because he is in deep doo-doo? Or did he demand a paid spot for his wife or self on a foundation board tied to the autism cause? Why did he wait to sign this bill?

    These questions will be asked of EVERY action he takes. Better that Pat Quinn signs these bills until the Gov. is cleared (or convicted & removed).

  29. - Angry Chicagoan - Friday, Dec 12, 08 @ 2:02 pm:

    Part of the argument rather reminds me of a saying my grandfather had back in the 1980s. Grandpa was a Republican who resented having Nixon and Reagan effectively “take” the party away from what it had been, hence he would say with a twinkle in his eye, “George Washington couldn’t tell a lie, Richard Nixon couldn’t tell the truth and Ronald Reagan can’t tell the difference.” And Blago, by Madigan’s argument, falls into the Reagan category far more explicitly than Reagan himself ever did. This, I think, constitutes a good reason to get rid of the governor but not a good LEGAL reason, unfortunately. The second part of the argument, that Blago has been disabled by the criminal charges and the loss of confidence in his administration/regime, is much stronger but also raises a more general question — should indicted politicians be suspended from office pending trial? In general, in the US, the answer to that one has been no; I have to say in general, I believe the answer ought to be yes, but I question whether a court is going to make what could well be a precedent-setting call.

    My hope is that the General Assembly will move rapidly on impeachment, and that the court will seriously entertain the “disabling” aspects of the criminal complaint.

  30. - Just Because - Friday, Dec 12, 08 @ 2:03 pm:

    I think LM should be ashammed she has no proof of his mental condition

  31. - Bill Baar - Friday, Dec 12, 08 @ 2:04 pm:

    …deserves kudos for the manner in which she conducted her press conference.

    I didn’t hear all of it but got a chuckle from her response to the question about the perceptions of what she was doing considering she wanted to be Gov or Sen herself. She said she was only doing the business of the people of Illinois, that was it.


  32. - Djarum - Friday, Dec 12, 08 @ 2:08 pm:

    Say, is it just convenient that Speaker Madigan is taking his sweet time and being rather uncooperative with impeachment legislation, allowing Lisa to pass this “unprecedented” motion? Now she can campaign on this exact anti-corruption in 2010, distancing herself from Blagojevich.

  33. - Pot calling kettle - Friday, Dec 12, 08 @ 2:24 pm:

    Some of her arguments are stronger than others, but the inability to sign off on the bond documents (see “fiscal crisis” thread) is a perfect example of why a Gov. under the legal cloud ours is under needs to step aside. It is also a fine, objective LEGAL reason.

  34. - He Makes Ryan Look Like a Saint - Friday, Dec 12, 08 @ 2:30 pm:

    Isn’t Filan the Head of IFA? I would say based on the timing of his appointment, he should be let go.

  35. - Lurker - Friday, Dec 12, 08 @ 2:37 pm:

    What’s the next step here?

  36. - Huntingwithaswitch - Friday, Dec 12, 08 @ 2:43 pm:

    Both Pat Quinn and Lisa Madigan have some explaing to do?

    Nayak, Raghu
    19W121 Avenue Chateau
    Oak Brook, IL 60523
    Occupation: Doctor
    Employer: Rogers Park Surgery $2,500.00
    2/27/2002 In-Kind Contribution
    Citizens for Lisa Madigan Food and drinks for fundraiser Gaylord India 678 N. Clark
    Chicago, IL 60610
    Nayak, Raghu
    124 Covington Ct.
    Oak Brook, IL 60523
    Occupation: President
    Employer: Rogers Park Surgery $4,000.00
    11/8/2003 In-Kind Contribution
    Taxpayers for Quinn (Patrick) food drink & staff Taxpayers For Quinn 676 N LaSalle St.
    Chicago, IL 60610

  37. - Cheswick - Friday, Dec 12, 08 @ 2:44 pm:

    Lurker - It’s in the Court’s court now. The Supreme Court can issue a TRO. Today, possibly. Or they can deny it. Depending on what they do governs what happens after that.

    735 ILCS 5/11‑101

  38. - Shelbyville - Friday, Dec 12, 08 @ 2:47 pm:

    Why hasn’ t the legislature convened already?

    Does the move to impeach take more than a roll call vote in both houses?

    I have read all of the above arguments and I still feel that it is awfully hard to prove an adult incompetent. The governor is still fully clothed and seems to know what day it is.

  39. - Rich Miller - Friday, Dec 12, 08 @ 2:52 pm:

    ===Why hasn’ t the legislature convened already?===

    They’re convening Monday.

    ===Does the move to impeach take more than a roll call vote in both houses?===

    Of course it does.

    Try not to post such ill-informed comments here, please. Thanks.

  40. - Rich Miller - Friday, Dec 12, 08 @ 3:04 pm:

    Huntingwithaswitch, that’s enough. You’re clogging up the post.

    A contribution doesn’t automatically signify bribery or corruption, no matter who it was from. Take a breath and step back.

  41. - Yellow Dog Democrat - Friday, Dec 12, 08 @ 3:15 pm:

    Madigan’s brief is spot-on, for the most part. Blagojevich demonstrates that he is clearly incapable of fulfilling his oath of office, and that incapacity equates to a disability.

    However, Madigan MAY have made a major gaff.

    By arguing that “Mr. Blagojevich is unable to distinguish between his financial interests and his official duties and between illegal and legal conduct,” Madigan actually establishes part of the legal basis for an insanity defense in his criminal trial: that he is unable to distinguish between right and wrong, legal and illegal.

    I disagree with her on that point, by the way. In his own words, Blagojevich clearly shows that he was actively engaging in a cover-up, which proves he knew that what he was doing was illegal.

    Don’t believe me? Ask famed Chicago author David Ellis, or read his book ‘Eye of the Beholder.’

  42. - Hmm - Friday, Dec 12, 08 @ 3:23 pm:

    I was wondering, what is the process by which a resignation from the Senate is acted upon? Is it effective at the moment it is made? Does the Senate need to do something to formally accept it? If it has not been formally accepted, could Obama just revoke the resignation? If he can, he should because Blago would be prevented from appointing a replacement until Obama is sworn in as president. Hopefully by that point Blago will already be out of office, or the power to appoint the replacement will have been removed from the powers of the governor.

  43. - Huntingwithaswitch - Friday, Dec 12, 08 @ 3:23 pm:

    Taking a campaign contribution does not signify a bribe or corruption, but it does show those identified as brokering the deal to sell the US Senate Seat on behalf of Illinois Gov. Rod Blagojevich are also close political allies of Lisa Madigan and Pat Quinn. While you may not think this important, I think voters have a right to know who they are dealing with.

  44. - Shelbyville - Friday, Dec 12, 08 @ 3:28 pm:

    No, I am serious. The house and legislature could have been brought into session immediately. Now, it is all being drawn out for 6 days.

    Hasn’t impeachment been thought out for at least the last 6 months?

    You mean no one has had it ready to go?

    In the meantime, Saturday Night Live is going to have a blast with IL.

  45. - Amy - Friday, Dec 12, 08 @ 3:31 pm:

    David Ellis is really great. his book is worth a read.

    Patrick Quinn, start your appointment engines! we know that you have been on the opposite side of Dawn Clark Netsch on
    many policy issues.

    but she’s even more pure than you are when it comes to the crazy pol land we live in.

    and smarter than anyone. appoint Dawn Clark Netsch to the seat.

  46. - Pot calling kettle - Friday, Dec 12, 08 @ 3:39 pm:

    I agree with YDD that Lisa probably went beyond what was necessary. I think the strongest argument is that Blago’s current situations renders him unable to carry out some, if not all, of his duties.

    Yes, he can clearly sign bills, but questions of quid pro quo will arise with each signing and provide a basis for a lawsuit regarding the legitimacy of each law. Interested parties will be combing through the finance reports and aligning donations with when bills were signed. What a great way to challenge a law and keep it tied up in court.

  47. - Can't Use My Nickname - Friday, Dec 12, 08 @ 3:59 pm:

    I am disappointed that Madigan didn’t include freezing the governor’s hiring authority throughout state agencies.

  48. - Black Robe - Friday, Dec 12, 08 @ 4:16 pm:

    For the court to rule in favor of the motion, it seems that it must find as a matter of FACT, that our governor is mentally incapable of differentiating between official duties and illegal acts. All other supporting “evidence” and arguments do not satisfy the term “disability” unless the court agrees to equate that term with actions not enjoying the wide spread support of other politicians or the bond market. Suppose the Court grants this motion based on that it finds Blago incapable of differentiating between official duties and illegal acts. As it is the Illinois Supreme Court and such would constitute a judicial determination of fact, the question very well may not be subsequently challenged by a federal court looking at the same issue. Would Blago be entitled to a jury instruction at the criminal trial that instructs the jury, that “as a matter of law, Milorod Blagojevich has been found to have been incapable of differentiating between official duties and illegal acts the relevant times herein. You shall not consider the propostition as to whether he was legally sane or not, that matter has been decided by the court.” How can the feds say that he is not crazy when the Illinois Supreme Court says he is, without violating long established rules of comity and res judicata? Once a court determines a fact, it may not be relitigated in a different court. The Supreme Court would put Lisa in a potentially very embarrassing situation and toss to Blago, now in the throws of political death, a life line. Moreover, I think the court will give little weight to the fact that at this snapshot in time, politicians in Washington DC express displeasure with having to accept the appointment of an elected governor -albeit one of the caliber of Blago. Finally, the Feds have not proved its case. What happened to Due Process as a check on expedience and rash action? The Supreme Court would have to be crazy to seriously entertain accepting Lisa’s invitation on this one. And, they are not crazy.

  49. - Bubs - Friday, Dec 12, 08 @ 4:19 pm:

    Yellow Dog writes:

    “Blagojevich demonstrates that he is clearly incapable of fulfilling his oath of office, and that incapacity equates to a disability.”

    First, whenever anyone says “clearly” it is a giveaway that things are not that “clear.”

    Second, that is a pretty summary rendition - I can see the Court asking the tough question of “Exactly which power can’t he act to fulfill?” He signed the Autism Bill and is playing the “Business as Usual” game just to show that he can act as Governor.

    A lot of people may want him out because he is accused of being a crook on strong evidence, but that is not a disablilty, that is just a desire for a new Governor. It is a bad business for the Supreme Court to be the Summary Executioner in the interest of expediency. As Shakespeare wrote in Macbeth, as Macbeth contemplates killing his king to take the throne himself:

    But in these cases
    We still have judgment here; that we but teach
    Bloody instructions, which, being taught, return
    To plague the inventor: this even-handed justice
    Commends the ingredients of our poison’d chalice
    To our own lips.”

    Lesson: be careful of the precedents you set.

    Keep the Court out of this.

  50. - Ghost - Friday, Dec 12, 08 @ 4:22 pm:

    BUT YDD, the inability to fill his office is based upon allegations made in a criminal complaint. before we can rely on the allegations in the criminal complaint technicaly due process would require the accused be provided a mini trial on the allegations. After all, if the allegations are not supportable, then neither is the taint etc. BUT madigan does not appear to have access to the evidence supporting the underlying accusations. i.e. she can not proved the conduct occured, only that it is alleged. Due Process requires that before any action is taken which could strip somone of a porperty right (which includes a job to which one is entitled absent some form of cause) they have certain rights to a hearing and the production of proof.

    It is easy when the criminal onduct looks to b easily proveable to toss out the idea of actual proof; but for all our sakes we should require a judicial proceeding to rely on more then allegations to support the claim.

    The whole theory in this case is based on currently unproven allegations. I think madigan should have to prove at least one of those allegations in order to pin a decision by the court on the existance of that conduct.

  51. - Observer - Friday, Dec 12, 08 @ 4:44 pm:

    “Appoint Dawn Clark Netsch to the seat”

    C’mon it’s almost dinner time and now I lost my appetite.

  52. - Amy - Friday, Dec 12, 08 @ 5:01 pm:

    your appetite for reform?

  53. - MikeintheSuburbs - Friday, Dec 12, 08 @ 5:04 pm:

    Now I am getting concerned that this thing could jeopardize what democracy we have left. I am a lawyer and see nothing in the Illinois Constitution that would authorize the state Supreme Court to take independent action against a sitting governor absent a showing of physical or mental impairment that would preclude the performance of his duties. I am also a disability law specialist and former member of the Board of the Illinois Chapter of the ACLU (I am not speaking for them obviously).

    The section referred to must be read in it’s context, which refers to the court reviewing actions already taken by the General Assembly. The GA has to do something, such as impeachment or a law setting a special election, in order for the court to act. This would be an extremely dangerous precedent should the court bow to the political passions of the moment. I take a back seat to no one in my dislike of the current Governor, but we should not gut the Constitution to get to him.

    On the impeachment front, there would be some problems trying to introduce evidence. Although there are no standards set in the state constitution for impeachment, I would think that some factual evidence would need to be introduced. Citing words on a piece of paper, without the tape recordings to back them up, is fraught with difficulties. The tapes probably can’t be made available as they would be played every five minutes on every news outlet in the country, making the selection of an impartial jury difficult and giving the defendant an argument to have the case dismissed as having been prejudiced.

    I hate to say it, but I think Blago has folks by the short hairs, at least in the short run. He will hang in there so that he can have a resignation to use to bargain for a deal. He doesn’t have any other leverage than that, so he can’t give it up.

  54. - Black Robe - Friday, Dec 12, 08 @ 6:17 pm:

    Mike, would’nt you agree that the court would need, at a minimum, the affidavit of a treating physician or treating psychiatrist attesting to his disability. And, would not the court first give the Gov the opportunity to submit other evidence. If you do disability law, you can verify that we in Illinois require a higher standard to commit someone involuntarily, declare one unfit to handle personal or fiscal affairs, or to require ont to take medication against one’s will. This looks more and more ill-advised the longer I look at it.

  55. - MikeintheSuburbs - Friday, Dec 12, 08 @ 6:47 pm:

    Black Robe

    That’s right. The whole thing is just a grandstanding stunt by Lisa to get face time for her own Gov bid.

  56. - Honest Abe - Friday, Dec 12, 08 @ 9:14 pm:

    I have never voted for Rod Blagojevich, so I am somewhat shocked to find myself opposing Attorney General Lisa Madigan’s grandstand play.

    The criminal complaint pending in the Federal Court has not been referred to a grand jury, let alone been tried to a verdict. Blagojevich is entitled to due process. The AG is relying upon a rule that properly relates to a governor who becomes incapacitated. As goofy as Blagojevich often seems, there has not been one shred of medical evidence put forward to suggest that he is mentally incompetent.

    As costly as it maybe, the proper course for removing Blagojevich is through the mechanism of impeachment. Of course, that will require heavy lifting. Blagojevich is a disgrace, but so are the political opportunists who are seeking to capitalize upon this scandal to advance their own careers rather than seeking to reform Illinois politics.

  57. - Bemac - Friday, Dec 12, 08 @ 10:34 pm:

    I hope the Supremes issue a brief, sensible “no” to this filing.

    The responsibility belongs to the General Assembly. The constitutional process is impeachment. Yeah, the timing’s a bummer in a lot of ways, but that doesn’t make it a question for the SC.

    Get the ball rolling Monday, Mr. Speaker. Forget the political consequences. With respect, sir, it’s your job.

  58. - Rich Miller - Friday, Dec 12, 08 @ 11:02 pm:

    ===The constitutional process is impeachment.===

    Wrong. It’s shared. From the constitution…

    ===The General Assembly by law shall specify by whom
    and by what procedures the ability of the Governor to serve
    or to resume office may be questioned and determined. The
    Supreme Court shall have original and exclusive jurisdiction
    to review such a law and any such determination and, in the
    absence of such a law, shall make the determination under
    such rules as it may adopt

  59. - Bubs - Saturday, Dec 13, 08 @ 1:18 am:


    Your comment runs to my point.

    The asserted existence of a power to achieve a desired short-term end under some sort of expedient interpretation of a provision, and the sober exercise of extraordinary power by the Supreme Court are two different things. The Court must look beyond the romance of the moment, for what it does is the law of Illinois for generations just as much as a legislative entactment.

    Think down the line. Whne you talk about action by the Supreme Court of any state or land, you are talking about the exercise of a plenary power. That exercise to remove a sitting Governor cannot be just a means to and end in the circumstances of the day, because the precedent thereby set will always be there, and the interpretation of that precedent will not be subject to control by either you, Lisa Madigan or the current membership of the Court.

    It is therefore dangerous to assign the Court the role of Hangman of the current ogre. If you do this, the precedent will exist for others to claim exercise of this plenary power by the Court against others who are not so obviously guilty, a suredly destablizing force within our body politic.

    Leave it to the people’s elected representatives to throw him out by due process and fair trial, not a Court of Star Chamber.

  60. - MikeintheSuburbs - Saturday, Dec 13, 08 @ 8:02 am:

    Rich: I am surprised that you are taking this position. Sure, the the Gov is a cad. We will be well rid of him. However, the provision of the Constitution that you cite is at best, ambigous, and would appear in the total context to be referring to what the court can do if the Assembly fails to enact some type of legal procedure to deal with the incapacity of a governor to serve. The previous subsections of this section talk about disablement, which I am sure was intended to mean servious physical or mental impairments.

    I think it was contemplated that there could be a situation where the Governor developed, say dementia, but a partisan legislature controlled by the same party refused to remove him. In that event, the court was empowered to step in.

    When something like this can be interpreted more than one way, the narrowest interpretation should be the one that prevails. This is what was done by the USSC in interpreting the provision concerning the US Senate’s ability to refuse to seat members, holding that they were limited to determining if the basic constitutional requirements were met. Anything else throws the system into disarray. It is but a small step from the present situation to throwing out a future governor for policy or partisan reasons. Beware whose ox you gore now, it may be yours next time.

  61. - Black Robe - Saturday, Dec 13, 08 @ 9:33 am:

    The Supreme Court is a court of review. True, it has some limited original jurisdiction, but it is designed to function on the proposition that the fact-finding in a matter has been by others, a circuit judge, jury, or Adm agency, to list a few. The empeachment of the highest elected official in the state must be a process open to the public. During the empeachment of Bill Clinton, then Chief Justice William Rehnquist, who had previously thoroughly researched and written about the role of the judiciary in the empeachment process, was extremely reticent to play anything more than a symbolic role. Eventhough the Constitution has the Chief Justice presiding over the empeachment procedure, he did little. He did not even rule on objections or entertain questions regarding issues and evidence. His assessment was that the proper role of the courts is to be fully engaged in the criminal process, excluding any role for politicians and legislators; and ceding to the legislative branch the primary role in the extrajudicial action of empeachment. As all stages of the empeachment process should be open to the public, the decision is best left to the legislature that conducts all aspects, including deliberation, in public. It should not rest in some briefs filed by lawyers and deliberations conducted in secret.

  62. - sances - Saturday, Dec 13, 08 @ 4:01 pm:

    Like Pot calling says above, the state cannot borrow money to operate because the governor is accused of a felony.

    The court will address the legal issues surrounding this specific motion, if it desires. It is the politics of the wider situation that will drive action.

    What happens if the court decides to consider this motion, and the governor successfully attempts to neutralize this filing by acting like a governor, signing bills into law and etc.? He demonstrates a competence which undermines any subsequent insanity defense against the federal charges, which then restricts the governor, which is really everyone’s goal - the legislature, the lt gov, the AG, and the feds - the first order of business is to stop rod from being governor, using all the means at their disposal. It just takes longer this way.

    No matter what, some of these people are going to be very willing to bend, twist, manhandle, or outright ignore the law in order to get rid of rod, if it comes to that, especially if the state cannot do business until then.

    This whole thing has to be resolved before the Obama stimulus money comes to Illinois. That means getting rid of rod.

    If this motion is successful, it gives everyone room to operate. The legislature can then wait until the new session to start impeachment; they won’t have to hurry because rod won’t be in charge to begin with. The feds can take time to more carefully prepare a case, again without having to hurry in order to prevent rod from using his position to do any more damage. The state can then prepare its stimulus projects, without the taint of blagojevich-type dealing attached to the money.

Sorry, comments for this post are now closed.

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