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Tribune ignores two-thirds of the case

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Sorry, but this is a two-thirds bogus lede under an equally bogus headline: Experts: House lawsuit is valid…

Gov. Rod Blagojevich’s lawsuit to force a House speaker from his own party to hold legislative special sessions may be unprecedented, controversial and somewhat embarrassing for the state’s Democrats. But it’s not legally frivolous, experts say.

Yes, I understand the point about making sure the governor’s power to declare the date and time of a special session is upheld, but that’s only a third of the case.

The rest of the lawsuit (read it here), which is barely mentioned at all in the Tribune story and not touched on in Eric Zorn’s column from several days ago, asks the courts to order House Speaker Michael Madigan to “convene a quorum” at the governor’s beck and call and forbid Madigan from granting members excused absences at will.

Presumably, if the courts upheld the governor’s request and Madigan didn’t follow the orders, the Speaker could be assessed some penalties, including even be declared in contempt of court.

I agree with the governor’s contention that he has the right to set the time and date of special sessions.

I absolutely do not agree that the governor and the courts have the authority to compel attendance by House and Senate members. Nor do I agree that the governor or the courts have any business delving into internal House and Senate rules over whether someone’s absence is “excused” or not. There’s nothing in the Constitution, state statutes, House and Senate rules or Illinois judicial precedence that gives the governor or the courts this power over legislative leaders. Notice that no references were cited in the suit on those points.

And that’s why two-thirds of this lawsuit is, indeed, frivolous, despite what the Tribune tells us this morning.

The other third, though, is different. As Zorn noted…

When you parse and pick apart the hazy language contained in the constitution and the law, he looks to be well within his rights in brazenly abusing the spirit and intent of the power to call special sessions.

And as the Tribune pointed out today…

“The governor has a quite plausible argument,” said Mark Rosen, law professor at Chicago-Kent College of Law. “It’s not a slam dunk. [But] he does have constitutional authority to convene a special session.”

Still, the case is a tough one to predict, legal and political experts said, partly because there are problems with granting total victory to either side.

If Blagojevich wins, does that mean he can force the General Assembly into special sessions every day? If House Speaker Michael Madigan prevails, can he ignore the special sessions at will?

Actually, there is at least one other alternative. The judge could rule that the Constitution and state law give the governor the right to set the time and date of the special sessions but refuse to inject itself into whether it should penalize someone for violating it. That power should be left to the House or the Senate, respectively.

One more thing, which Finke points out…

The lawsuit also says it isn’t enough that Madigan convene the House at the time and date set by the governor, he’s got to ensure that more than half the representatives show up. The lawsuit lists several days when fewer than half showed up, meaning the House was unable to conduct business.

Of course, the lawsuit blamed Madigan.

Let’s look at one of those days. On July 28, a Saturday, only 56 of 118 House members were present. Bad Mikey gave excused absences to the rest of them, thereby eradicating the governor’s powers.

Want to know how many senators showed up that day? Only 15 out of 59. As a percentage of the chamber, the Senate had worse attendance than the House. Is Senate President Emil Jones, D-Chicago, named as a defendant in the lawsuit because he didn’t force a majority of his members to attend that day? Nope, because Jones is Blagojevich’s pal.

posted by Rich Miller
Tuesday, Sep 4, 07 @ 7:24 am

Comments

I’m going to bet the governor’s case sets a new record for rapid dismissal.

Comment by Gregor Tuesday, Sep 4, 07 @ 7:37 am
Rich, its precisely because the constitution or statutes say nothing about the governor’s ability to compel members to convene that the governor has taken this to court. He feels that the speaker dismissed the powers of the executive branch and seeks the court’s opinion on whether he is within his right to do so. I think that the governor is doing exactly what he needs to do.

By the way, has the AG taken a position on this?

Comment by Anon Tuesday, Sep 4, 07 @ 7:47 am
Rich, good to have you back.

Comment by Anon Tuesday, Sep 4, 07 @ 7:47 am
Anon 7:47 - If the Constitution and/or Statutes are silent to the matter, then the power does not exsist. Meaning that the Gov does not have the power to compel the Senators and/or Rep’s to attent his “Special Session”. The Gov. only has the Constitutional power to “call: a special session.He loses 2/3rds of his case. End of story

Comment by Really? Tuesday, Sep 4, 07 @ 7:57 am
You have to put the blame for all of this where it rightly belongs. The voters of Illinois and the Democrat party knew exactly what they were voting for in Blagojevich. Madigan and the Democrat Party endorsed this guy. So it should come as no surprise that once again he has dug the knife deeper into their backs.
Many people believe it is horrible that very few people vote in this country. My opinion is too many uninformed, gullible citizen vote already. They are unable to read a paper or see past the million dollar commercials. Therefore Blagojevich.
And of course the Illinois Republicans are a bunch of clowns.
Illinois has just what it deserves. Welcome to HELL.

Comment by Lula May Tuesday, Sep 4, 07 @ 8:05 am
The constitution is not exactly silent on the question. It gives the governor the power to call a special session; but it also explicitly gives each chamber the right to set the rules of its proceedings. Even before the special sessions were called this year, the House rules very clearly spell out that special sessions start at 12:30 unless the Speaker sets a different time. (House Rule 29, for those who want a look; and Art. 4 Section 6(d)).

It’s pretty clear that the Governor can set a date for the special session — but I also think it’s pretty clear that the House (and Senate) set the rest of the rules, and that includes the hour session starts.

Three thirds of the lawsuit is bogus.

Comment by the Other Anonymous Tuesday, Sep 4, 07 @ 8:32 am
Courts base their rulings on specific cases, and in this specific case the proper ruling of the court should be that the battle between Madigan and Blagojevich is purely political (since Blagojevich offered no substance at his special sessions).

Political conflicts should be decided at the ballot box and in the court of public opinion, not by the judicial branch. Based on the Rasmussen poll, I’d say that’s what’s happening right now.

The Governor does need the ability to convene special sessions. Take the extreme example of an earthquake along the San Andreas fault. If that were to happen and the Gov convened a special session, and then Madigan refused to hold it, then we would have a different case.

As for the lack of a quorum, the simple solution is for Blagojevich to send the State Police out to round them up. He’s not doing that because sending the State Police after House Democrats but not Senate Democrats would go clearly beyond the pale.

Again, this ain’t a legal case, its a political one.

Comment by Yellow Dog Democrat Tuesday, Sep 4, 07 @ 8:34 am
Good lawsuit. Like it or not Blago is the Governor. The ability to preserve any Gov’s right to call a special session should be upheld. If one questions why the Senate President is not named, it could be due in part to the fact Pres. Jones did not make a speech on the House Floor telling members to ignore special sessions unless they hear from him.

Comment by Tye Tuesday, Sep 4, 07 @ 8:41 am
Tye- Jones is not named because he has been in Blago’s pocket since day one. No one is naive enough to believe Jones is anything but Blago’s puppet. So of course he isn’t named. If he were he might call the guv’s veto.

Comment by Leigh Tuesday, Sep 4, 07 @ 8:52 am
ARTICLE IV, SECTION 12. LEGISLATIVE IMMUNITY
[…]A member shall not be held to answer before any other tribunal for any speech or debate, written or oral, in either house. These immunities shall apply to committee and legislative commission proceedings.

The governor’s case is in part a direct violation of this part of the state Constitution. Clearly, he his trying to hold Speaker Madigan culpable not only for his actions as speaker but also for remarks the speaker made in the House chamber about the governor’s special sessions.

Does the governor know how Charles I violated this principle?

More importantly, does he know what happened to Charles I and his head as a result?

Comment by Bemac Tuesday, Sep 4, 07 @ 9:06 am
The only way we have seen support for Blagojevich go up is when he stops making news.

This is not only a bad idea governmentally, it is a bad idea politically for Blagojevich.

Governor, please go away - far, far away. We will let you know when we want to see another freak show. Considering how this summer went, we have had enough of you for at least another year.

What you need right now is another shot at a budget session - a normal one. A boring one. IF you can prove you can do your job then you will see support for your other ideas grow.

But right now, please exit stage left. We have had enough.

Comment by VanillaMan Tuesday, Sep 4, 07 @ 9:40 am
What is the purpose of the power to call a special session? Probably to bring the Legislature to Springfield to consider some unforseen or urgent event. Something they didn’t have the opportunity to consider previously in a regular session.

I don’t think the purpose is to “wood-shed” the legislature.

I think the courts will say that whether the session begins at 10:00 a.m. or at 12:30 p.m. is de minimus, and not worthy of the Court’s consideration.

By the way, the San Andreas fault is in California; the New Madrid fault is in Illinois

Comment by Anon III Tuesday, Sep 4, 07 @ 9:46 am
He has the right to call the special session, but I think that is where is ends. For example, what if he called special session for noon on Monday, but the House has already convened, and is in the middle of debating legislation on the floor? Does the House have to stop what it is doing at noon and call the Governor’s session into order? This lawsuit is absolutely silly, so it should be treated as such.

Also, if you read the statute literally, it does not say the Governor has the authority to set the time and place. It says the Secretary of State “shall…notify the members of the GA of the date and time of the special session.” Now maybe that assumes the Governor has the authority, and that has certainly been the way special session have been called in the past, but it does specifically not say the Governor has the authority to set the day and time.

The constitution also requires the Governor to convene the Senate until a Senate President is elected, but the Senate has always set the time for this session, and the Constitution sets the date, so merely giving the Governor the authority to convene a session does not imply authority to set the time and date.

Comment by Jaded Tuesday, Sep 4, 07 @ 9:52 am
First, the court could find this is a political question not to be answered by the courts. i.e. it needs legisaltion to better define, and would violate seperation of powers.

If the court elects to decide the claim, it could find the date and time authority are directory rather then mandatory. Many statutes have provisions, such as time limts, that courts find are directory.

If a provision is directory it means it provides guidance as to when something should be done. I.e. the Governors set a time and date that are directory, translates as being an advisory setting. Ultimately directory acts are to be considered, but there is no penalty if they are not complied with. Thus a directory provision would still allow for discretion on whetehr the dirdction was folloowed.

A mandatory provision is one that must be complied with, no discretion. Given the lack of language identifying a penalty for failure to convene on the exact date and time called by the governor, and in fact the passing reference appearing not in the Governors grant, but in DIRECTIONS to the secretary of state, it appears this is not a mandatory non-discretionary provision.

Comment by Ghost Tuesday, Sep 4, 07 @ 10:13 am
I’m not a lawyer so I don’t knwo the answer to this question, but since Madigan is named and Emil isn’t, is there a possible “equal protection under the law” defense available?

Comment by Not a lawyer Tuesday, Sep 4, 07 @ 10:45 am
There is no authority for either the Speaker or the Governor to ‘compel’ members’ attendance - by arresting them or otherwise. Indeed, Legislators have absolute immunity. The Speaker did call each ‘Special Session’ to order on the day decreed by the Governor. If there is no quorum, then so be it - the Constitution recognizes that there may not be a quorum. I don’t know who all these ‘experts’
are, but they are wrong!

Comment by Legaleagle Tuesday, Sep 4, 07 @ 10:46 am
If I were the judge, I’d toss the suit because the plaintiff hasn’t shown that he was harmed by the defendant’s actions.

Hard to have a suit if there is no damage done.

Convening the legislative session earlier than requested did not result in any harm to Blagojevich. Particulaly since neither Chamber took up any legislation during the special session.

Judge should be able to toss the suit and tell the Governor to come back when there’s been some damage done.

Comment by Old Elephant Tuesday, Sep 4, 07 @ 10:47 am
This issue is nonexistent. The special sessions are over. He should have brought this when they were going on. I think the court will find no actual controversy. Should Madigan counter sue regarding Blago’s health care spending plan that was not authorized by the Legislature? There is the issue for the Courts.

Comment by blogman Tuesday, Sep 4, 07 @ 11:15 am
Let’s face simple facts. The lawsuit was not filed because the Gov’s lawyers thought that it would solve anything. Otherwise it would have sougnt some emergency hearing — preliminary injunction. More likely, it would have been filed in the Illinois Supreme Court like the case of Rock v. Thompson that is cited in the lawsuit.
Since this was such a cavalier filing, it should be denounced for the waste of judicial resources and mere political ploy that it is.
Sure the Gov. should be able to call a special session and that should be followed as he declares in the proclamation. But likewise, the courts and executive have no power to tell the Speaker when he can and when he cannot excuse members.
This is a case where politics is supposed to rely on the give and take of balances of power. The Gov needs to learn that his power does not supercede the other 2 branches.

Comment by Political Observer Tuesday, Sep 4, 07 @ 11:17 am
This is politics at its worst. If this had been a matter of legalities, who has authority over whom to set what, then Blago would have named both the House Speaker and the Senate President. He has shot himself in the foot over this one and I’m pretty sure whatever judge is assigned to this case will see that as well. Blago is part of the Executive branch of Illinois government. He wants to be chief cook and bottle washer of this State and the constitution won’t allow that to happen. The lawsuit is hilarious and reads as if it had been drafted by a high school freshman civics class (sorry freshman - I know that’s cutting ya pretty low). Cue the fat lady.

Comment by Just My Opinion Tuesday, Sep 4, 07 @ 11:37 am
The question should not be whether the lawsuit is legitimate but whether the misuse of taxpayer dollars to fund special sessions to punish lawmakers for disagreeing with the Governor is grounds for removal from office.

Comment by Garp Tuesday, Sep 4, 07 @ 11:50 am
The Executive branch orders the Legislative branch to do something. They don’t do it exactly as directed so the Executive orders the Judicial branch to order the Legislative to do as ordered by the Executive. I think we have a definite separation of Powers issue here - checks and balances. If a “true” basis for a Special Session existed I have no doubt that Madagin and Jones would respond promptly and responsibly. However, I see no obligation to appease a tantrum throwing brat of a governor who would use such a serious provision as a spanking paddle. If the court goes past a dismissal of this frivolous charge I will be disgusted.

Comment by A Citizen Tuesday, Sep 4, 07 @ 12:01 pm
I don’t see any wording that when the gov calls for a special session, he also has to attend - If I’m not mistaken, he’s called for special sessions and then not attended them. If he calls for them, then he should be there too!

Comment by Sahims2 Tuesday, Sep 4, 07 @ 12:06 pm
I think the gov failed to provide a tangible bill or legislation for consideration at each SS. That failure in and of itself points to the lack of serious substantive intent on the gov’s part. That fact alone should serve as a basis for throwing out his pitiful attempt at a case. He did not even appear at a SS to present his issue for serious consideration, discussion, and definitive action. There was no expectation of a tangible product from any of these SS, beyond gov’s grandstanding and insatiable hunger for publicity. This was bizarre behavior for a public official at that, or any other, level of government.

Comment by A Citizen Tuesday, Sep 4, 07 @ 12:16 pm
Only in Illinois!

Comment by Poolside at Hotel Ibiza Tuesday, Sep 4, 07 @ 12:26 pm
Has the governor now resorted to torturing the members with singing speeches until they finally give in?!?

Comment by Lainer Tuesday, Sep 4, 07 @ 12:37 pm
I have some additional commentary on this topic (as well as this post by Rich) at:
Could Gov. Blagojevich call a special sesson of the General Assembly for 4 p.m. Thanksgiving afternoon?
http://blogs.chicagotribune.com/news_columnists_ezorn/2007/09/could-gov-blago.html

Comment by Eric Zorn Tuesday, Sep 4, 07 @ 1:57 pm
Eric Zorn’s column last week hit the nail on the head. The governor abused his authority excessively in terms of calling special sessions, despite the absence of any reasonable justification for doing so. The Governor’s conduct makes his lawsuit frivolous, particularly since Emil Jones was not sued for similar conduct. It’s just another case of misplaced priorities - I hope the Governor is not paying outside legal counsel with state funds to prepare and litigate his lawsuit against Madigan. It’s clearly a political rather than a consitutional issue.

Comment by Captain America Tuesday, Sep 4, 07 @ 3:07 pm
My theory is that if gov creates enough of a volume of litigation wherein outside lawyers (Winston and Strawn) are required then he gets “pro bono” legal defense services when the Feds finally charge him and his co-conspirators as the case may be. Quid pro quo and Ubi est mia at the finest!

Comment by A Citizen Tuesday, Sep 4, 07 @ 3:19 pm
Could it be possible, and I know this is a huge stretch, that the Feds are looking at the entire fabric of state government as a RICO structure? Executive, Legislative, and perhaps to a lesser extent the Judiciary, seem to have conveniently cozy relationships when fringe issues get inflamed. Maybe I need to put my tinfoil hat back on!

Comment by A Citizen Tuesday, Sep 4, 07 @ 3:43 pm
This is all too bad & so typical. I think Madigan say’s to the guv that session adjourned, we gave you a budget, we’re tired & want to get out of here now 3 months hence & past our adjournment dat. bUSINESS IS DONE & SEE YOU IN VETO. . The special sessions that were called & prior too were meaningless in the sense there was nothing before them to consider. Under normal situations it wouldn’t have been a problem necessarily ….but became one through foolishness. Sad thing the outcome may set presedent & further inter-twine the workings of the legislature & executive. It’s a dangerous thing. It’s pure politics & keeps the guv front & center where he likes to be despite the consequences. Curious to see what happens next with this “re-distribution” of funds for all care, or whatever it’s called. Up & running & then how is it funded {or dis-banded} next year.

Comment by annon Tuesday, Sep 4, 07 @ 5:11 pm
Can we say “separation of powers”? There is no way the guv wins this lawsuit. It’s a political question, so I doubt the court will even review it. If the court does review the question, Blago loses because the Court will say something to the effect that there is no way the framers of the state constitution could have intended for the governor to have unlimited power to compel the legislature to convene at his whim. (For more on this subject, read the Declaration of Independence and the history leading up to it.)

BTW– I think the New Madrid Fault lies primarily in Missouri.

Comment by HoosierDaddy Tuesday, Sep 4, 07 @ 5:14 pm
“…New Madrid Fault lies primarily in Missouri…” yes, until it decides to RUMBLE then we’ll feel it way North and elsewhere - pretty widespread damage! But as long as it just lies there . . . ?

Comment by A Citizen Tuesday, Sep 4, 07 @ 6:16 pm
I find it very ironic that a former national legislator, now turned Illinois governor, who missed 33% of the votes he should have voted on in his last year in Washington, has the nerve to force people to come to meetings he didn’t completely attend himself. Do as I say, not as I do!!!!

Comment by Disgusted Tuesday, Sep 4, 07 @ 10:00 pm
If the Governor wants the ability to compel attendance at special sessions, then he needs to get one of his floor leaders to propose changes to existing state law, granting him the express authority to sick the state police on legislators who are unexcused from special sessions.

Comment by Tony Scal Wednesday, Sep 5, 07 @ 1:26 am
if he’s so complelled to insist on attendance…then lead by example & come to work in springfield especially in the upcoming spring session & he might be surprised what can be accomphlished. his record in the GA ^ congress for that matter wasn’t too stellar.

Comment by annon Wednesday, Sep 5, 07 @ 5:45 am
If the court has the sense of a first year law student, if the judge remembers one of those first constitutional lessons of law school (Marbury vs. Madison), the case will be dismissed.

Comment by Separation of Powers Wednesday, Sep 5, 07 @ 9:30 am
What can we say about Rod that hasn’t already been said? He is the worst of the worst… a complete and total embarrassment to our state. Were it not for his endless efforts to pander to those less fortunate (many, by choice) he would never get re-elected. The citizens of Illinois will have to unite to unseat this moron in the next election (if he’s not in prison by then). It won’t be easy with northern IL residents voting for him (again) en masse as they sit and wait for their freebie of the month. If only George Ryan would never have run for governor we wouldn’t be in this predicament now. I hope he is forced to spend his remaining days in prison. It’s the least he can do for saddling us with this monster!!

Comment by faithnomore Thursday, Sep 6, 07 @ 8:18 am