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The perils of lawyerly language

Wednesday, Jul 31, 2019

* Sun-Times

He’s widely considered the most powerful politician in Illinois, but there’s no proof that House Speaker Mike Madigan uses his numerous roles to influence Democrats throughout the state.

Nor that he mixes government and politics.

At least that’s what lawyers for the head of the state Democratic Party argue in their latest federal court filing, seeking to knock down a lawsuit accusing Madigan of using his vast power to rig elections and punish enemies. Madigan’s lawyers produced the lengthy reply on Monday in their quest to resolve the lawsuit before it could head to a trial. […]

“Defendants dispute that Defendant Madigan uses the numerous roles he holds to influence Democrats at all levels of government,” Madigan’s lawyers wrote. “The evidence cited does not support this statement, nor does the record otherwise support a statement.”

His lawyers also wrote that they “object to the word ‘influence’ as unreasonably vague, and ambiguous.”

#Facepalm.

Who in their right mind would ever believe that statement from Madigan’s attorneys?

* But there is a very hyper-lawyerly explanation for this. If you read the joint defendant response, you’ll see it very specifically references this exchange in Madigan’s deposition

Q: We talked about your role as a 13th Ward Democratic Committeeman. We talked bit about your role as a Third Congressional District State Central Committeeman. We talked a little bit about the role that you’re in as Chairman of the Democratic Party of Illinois, and I just want to ask you about that in particular. … What other role or position do you play or occupy as the Chairman of the Democratic Party of Illinois?

A: You work with any Illinois Democratic which is to get involved with the Democratic Party of Illinois. You work with different candidates and so today there you are Democratic candidates for State Offices, and we’re working with them to help them get elected. In addition, we work with candidates for the Illinois House, candidates for the Illinois Senate, candidates for the United States Congress.

So, the objection was over what the MJM lawyers claim was a mischaracterization of what Madigan said. Madigan, they say, didn’t actually admit to using “the numerous roles he holds to influence Democrats at all levels of government.” As Hannah Meisel noted today

In an additional 64-page filing Monday, Madigan’s attorneys also attempted to have multiple exhibits of evidence introduced by Gonzales’ campaign excluded from the case, a standard legal move.

Lawyers.

* Meisel also wrote about a different MJM filing today

Attorneys for House Speaker Mike Madigan (D-Chicago) shot back at former primary challenger Jason Gonzales in a new court filing Monday, attempting to deconstruct Gonzales’ argument that Madigan allegedly putting up two “sham” candidates with Hispanic last names like Gonzales’ was a violation of the Equal Protection Clause to the 14th Amendment. […]

But Madigan’s lawyers pointed do a four-pronged legal test laid out in a 1973 case in front of the 7th Circuit Court of Appeals, in which two Democratic state senators were accused of pulling a bait-and-switch after one of them was drawn out of his old district after the 1970 Census and 1971 redistricting process.

In that case, State Sen. Robert Cherry was challenged by Ronald Smith in the 1972 primary election, and received 53 percent of the vote. But Smith alleged that Cherry had never intended on running in the general election, as evidenced by his dropping out of the race in September of that year, and being replaced on the ballot by State Sen. Ben Palmer — the senator who had been drawn out of his own district. […]

Madigan’s attorneys claimed that even Gonzales himself had previously conceded in filings for the case that Madigan would have supported Barboza or Rodriguez if either had won the 2016 primary, meaning neither of them had been placed on the ballot to pull any sort of bait-and-switch scheme.

* Also from that filing and mentioned by Hannah

Plaintiff’s definition of a “sham” candidate—based on the time and other resources he or she devotes to the campaign—is both impossible to administer and would disproportionately subject less popular and well‐funded candidates to the threat of litigation

Heck, I’m so old I remember when a bona fide sham candidate named Michelle Chavez actually won a House race

Chavez, a Democrat, was elected in 2004, defeating incumbent Republican Frank Aguilar in what was thought to be a non-competitive race. She had run in the primary, allegedly at the behest of Aguilar, and won the Democratic nomination, after which she did very little campaigning, for the general election.

Chavez was celebrating at Rep. Aguilar’s victory party when she found out she beat him.

Oops.

- Posted by Rich Miller        

21 Comments
  1. - Bananas - Wednesday, Jul 31, 19 @ 10:57 am:

    Leaving aside the “they did it in Cicero too, so it’s not bad” argument. Isn’t there a line here that could argue Madigan or one of his organizations contributed paid manpower to get the sham candidates on the ballot but he didn’t disclose it as an in-kind contribution? Or a line that Madigan arranged for some kind of benefit for the sham candidates to agree to be on the ballot, and that benefit (job, special consideration, or compensation) is either an illegal use of government resources or an undisclosed campaign expense?


  2. - Boone's is Back - Wednesday, Jul 31, 19 @ 10:59 am:

    Despite MJM being the most targeted and demonized politician in the state I think it’s important to remember something that gets left to the bottom of all these news stories….

    Gonzales’ own attorney admits that there is no case precedent for the basis of this suit. They’re trying to establish one with this lawsuit. Any law school student will tell you that is an incredibly high burden to meet.


  3. - JS Mill - Wednesday, Jul 31, 19 @ 11:07 am:

    It depends on what the meaning of the word ‘is’ is.


  4. - D - Wednesday, Jul 31, 19 @ 11:11 am:

    I remember an election for state rep back many years ago( 30-40) when we had 3 reps per district and the democrats put up the 16th ward democrat commiteeman, Taylor Pouncy , as an Independent to run with the idea of beating the republican candidate Jerry Washington. Taylor won the election. So thsi is nothing new in their playbook.


  5. - d. p. gumby - Wednesday, Jul 31, 19 @ 11:13 am:

    Is there a distinction between actual “use” of power and the perception that power could be “used” and therefore behavior responds w/o the need to actually “use” whatever power is perceived.


  6. - Norseman - Wednesday, Jul 31, 19 @ 11:22 am:

    The humor of the headline that Madigan’s lawyer challenged others to prove him a “power in party politics” was priceless.

    That this is part of a judicial process that should have never gone this far is also amusing. I can’t see Gonzales winning this case. To do so would put our electoral process at risk for arbitrary judicial intervention over whether a candidate is legitimate or not. A very dangerous precedent. As Rich’s example points out, voting is up to the people and they can sometimes create surprises such as the election of a “sham” candidate.


  7. - Lawyer - Wednesday, Jul 31, 19 @ 11:26 am:

    === Isn’t there a line here that could argue Madigan or one of his organizations contributed paid manpower to get the sham candidates on the ballot but he didn’t disclose it as an in-kind contribution? Or a line that Madigan arranged for some kind of benefit for the sham candidates to agree to be on the ballot, and that benefit (job, special consideration, or compensation) is either an illegal use of government resources or an undisclosed campaign expense? ===

    My understanding is that Jason Gonzales never provided evidence that either of those things occurred. You can’t just allege that those things happen without factual support for those allegations.


  8. - Brian U - Wednesday, Jul 31, 19 @ 11:38 am:

    What exactly is a “sham” candidate?


  9. - Ron Burgundy - Wednesday, Jul 31, 19 @ 11:38 am:

    I’m joking, but I’d almost ask the court to take judicial notice of that. That’s where a fact can be introduced into evidence where the truth of that fact is so notorious or well known that it cannot reasonably be doubted… “The sky is blue, etc.”


  10. - Rich Miller - Wednesday, Jul 31, 19 @ 11:40 am:

    ===Madigan or one of his organizations contributed paid manpower===

    Madigan has a lot of “volunteers.”

    ===Madigan arranged for some kind of benefit for the sham candidates to agree to be on the ballot===

    That was actually alleged and proven false.


  11. - Dotnonymous - Wednesday, Jul 31, 19 @ 12:04 pm:

    The four basic elements necessary for proving conspiracy are well known…to prosecutors.


  12. - @misterjayem - Wednesday, Jul 31, 19 @ 12:08 pm:

    “That this is part of a judicial process that should have never gone this far is also amusing. I can’t see Gonzales winning this case. To do so would put our electoral process at risk for arbitrary judicial intervention over whether a candidate is legitimate or not. A very dangerous precedent.”

    After many billable hours, the court will hold that it is not the role of the judiciary to determine if a candidate who has satisfied all of the statutory requirements is a “sham”.

    “Is there a distinction between actual ‘use’ of power and the perception that power could be ‘used’ and therefore behavior responds w/o the need to actually ‘use’ whatever power is perceived.”

    There’s also a very good chance that the court will explicitly hold that an implied threat of potential misuse of governmental and political power does not constitute an actual misuse of governmental and political power.

    In both instances, much like the U.S. Supreme Court’s recent gerrymandering case, “There are no legal standards discernible *** for making such judgments, let alone limited and precise standards that are clear, manageable and politically neutral.”

    Gonzo’s attorneys are asking that the court both: 1) establish new standards for actions in Illinois elections, AND 2) find that someone failed to meet those previously unknown legal standards for elections.

    The likelihood that the court would take it upon itself to wade so deep into the mire of Illinois elections is, at best, vanishingly small.

    – MrJM


  13. - Dotnonymous - Wednesday, Jul 31, 19 @ 12:10 pm:

    The four basic elements necessary for proving conspiracy are well known…to prosecutors…and I think I’m safe in assuming Mike Madigan knows too.


  14. - Dotnonymous - Wednesday, Jul 31, 19 @ 12:15 pm:

    I’m not a lawyer…and didn’t sleep in a name brand motel…but…I don’t see an actual case here…and I suppose a court won’t either.


  15. - Dotnonymous - Wednesday, Jul 31, 19 @ 12:19 pm:

    The likelihood that the court would take it upon itself to wade so deep into the mire of Illinois elections is, at best, vanishingly small.

    – MrJM

    That’s some really good Wordsmithin’, Mr.JM.


  16. - Dotnonymous - Wednesday, Jul 31, 19 @ 12:23 pm:

    “Madigan has a lot of “volunteers.”

    I hear even his volunteers have volunteers.


  17. - Just Me 2 - Wednesday, Jul 31, 19 @ 2:01 pm:

    re: Chavez — classic HRO. Trying to act like Madigan and falling flat on his face. Way to go there, Artl.


  18. - Thomas Paine - Wednesday, Jul 31, 19 @ 2:04 pm:

    The craziest thing about this lawsuit is that Jason was by all accounts the shammiest of all of the “sham” candidates on the ballot.

    I mean, who honestly believes he was a Democrat, or was not backed by Bruce Rauner?


  19. - Anyone Remember - Wednesday, Jul 31, 19 @ 2:08 pm:

    Slogging through the deposition. Best Madigan answer? Reply to Anthony Peraica’s question about MJM interacting w/ other Committeemen: “I’m like you, I try to make friends everywhere but not with great success.” Oh Snap!


  20. - Rich Miller - Wednesday, Jul 31, 19 @ 2:12 pm:

    ===Chavez — classic HRO===

    More like classic Cicero Republicans. It was their last gasp.


  21. - Dotnonymous - Wednesday, Jul 31, 19 @ 2:32 pm:

    My Granny used to say,”Old crows are hard to catch”.


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