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* There has been much back and forth over whether Attorney General Lisa Madigan’s motion at the Illinois Supreme Court is the right thing to do. AG Madigan wants the Supremes to remove Blagojevich from office, or at least transfer his powers to Lt. Gov. Quinn.

You can refresh your memory by going here, here and here.

* The Question: Is this the right thing to do, or does it set too much of a dangerous precedent? Explain fully, please.

posted by Rich Miller
Wednesday, Dec 17, 08 @ 10:29 am

Comments

The right thing to do. The Gov. needs to step aside (or be put aside) until this situation is resolved. It is clear there are certain things the state is hindered from doing (like letting bonds) and other things that probably should not be done (like making appointments and signing bills). Putting the Lt. Gov. into power under these circumstances is one of the primary reasons why the position exists.

Comment by Pot calling kettle Wednesday, Dec 17, 08 @ 10:35 am
I have always thought that the dual approach by th AG. and legislature was the correct way to go.

In the event the AG. is successful it could be a quick way to remove Blago, if only until the impeachment process unfolded.

Comment by MOON Wednesday, Dec 17, 08 @ 10:35 am
I certainly is the right thing to do. Put him on administrative leave with pay and let the state’s bleeding stop. If he is cleared let him come back. It actually sets a good precedent that the state can’t be held hostage by anyone including the Governor.

Comment by Phineas J. Whoopee Wednesday, Dec 17, 08 @ 10:37 am
No, This is grandstanding and it sets a bad precident if allowed to go through.

So if enough Constitutional officers say you are unable to govern you can go to the Supreme Court and get removed? Sounds like something that happens in the Middle East.

What keeps it from happening to a Republican Governor, with all Dem’s as constitutional officers and Legislature? (or vice versa?)

This is not the right thing to do, the Illinois Constitution has provisions to remove an elected official, they need to exercise it.

Comment by He Makes Ryan Look Like a Saint Wednesday, Dec 17, 08 @ 10:38 am
it is one thing to do. everyone who has the power to take action to resolve the situation has to do something, the Attorney General, the General Assembly, people who know anything about the Governor and illegal activities. the state is paralyzed and a laughing stock. action is appropriate.

Comment by Amy Wednesday, Dec 17, 08 @ 10:41 am
Even if it does establish a “precedent” — the word everybody fears — surely this is not a *bad* precedent?

The events over the past few weeks have been extraordinary. Extraordinary events demand extraordinary responses.

Whatever “precedent” is established won’t be used frequently. I have enough faith (in even our corrupt) leaders to know this to be true.

It’s no crime to be an idiot — but it is a crime to commit a crime.

I’m not sure what (some) folks fear here. What, that we’ll crack the whip on the idiots in office instead of the criminals?

Comment by Macbeth Wednesday, Dec 17, 08 @ 10:43 am
Depends what you mean by right thing to do.

It was the right political thing to do. She needed to be seen as taking any measure at her disposal to do something about the problem.

As the state’s top legal authority, I don’t think it was the right thing to do because it’s such a silly, tenuous legal argument. Aside from the truth that the court should probably punt based on the political question doctrine, it’s a silly argument that Blagojevich is “disabled.” He isn’t in a coma. He didn’t fall down and hit his head. She didn’t try to make a legal showing that he has a serious cognitive disability.

Comment by Joshua Wednesday, Dec 17, 08 @ 10:43 am
It’s a terrible move. This is essentially a political crisis and this play seeks to cover up the politics with a phoney clinical diagnosis.

Fitz will handle the criminal. The Legislature will deal with the political. We don’t need the AG and Judges pretending to be Docs on top of it.

Comment by Bill Baar Wednesday, Dec 17, 08 @ 10:45 am
Not the right thing to do. It perverts the intention of the law, which is to seek to remove authority from someone who is physically or mentally incapacitated. While we may think the governor has issues, he is not incapacitated.

In addition, if my memory serves correctly, another group asked a judge to look at Rule 382 before AG Madigan, which makes her action seem superfluous.

Comment by Fan of the Game Wednesday, Dec 17, 08 @ 10:47 am
Joshua has it right. When your major legal argument is supported primarily by a quote from the 1987 version of Webster’s, you should know you’re in trouble.

Comment by Doubtful Wednesday, Dec 17, 08 @ 10:47 am
The AG’s suit is ripe with conflict of interest. She’s running for governor and looking to score a knockout blow on her prospective primary opponent.

Comment by legal scholar Wednesday, Dec 17, 08 @ 10:47 am
The provision in the Illinois constitution was clearly designed to allow a process to appoint an acting governor in the event of a physical or mental incapacitation of the Governor.

Sure, the AG makes a good argument that the provision can be read more broadly. (I suspect that the court will reject the argument, however.) But even if the provision is broader, it’s a terrible precedent because the correct procedure to remove a governor for official malfeasance (or nonfeasance, etc.) is impeachment.

The one fact in this case that gives me pause is that the Governor was physically arrested, and is under court bond. To me it would be a more interesting argument to make that a Governor is physically impeded from fulfilling all his duties while under bond, because the court can restrict his movement and revoke the bond at any time.

Comment by the Other Anonymous Wednesday, Dec 17, 08 @ 10:48 am
No it is not.

Governors are to be impeached and convicted by the General Assembly.

What we see here is a spinless run-around by Illinois Democrats who are afraid of what challenging Blagojevich might do to their political careers. No one but Blagojevich and each legislator knows what deals they cut with him and what a wounded Rod Blagojevich would do with this knowledge.

So the General Assembly is hoping that he either resigns or that this run-around spares them what for some is a risky political decision.

We need transparency and a full Senate and House cleaning. These worthless panderers need to do what they were elected to do, or look for work elsewhere.

Comment by VanillaMan Wednesday, Dec 17, 08 @ 10:49 am
I am a huge fan of Lisa’s, but this is not a smart move. The old adage “Bad facts make bad law” couldn’t be more true under these circumstances. The suit references a law that was clearly designed to deal with a physical or mental disability. The facts in this case are just inoperative. Let the political process play out, let the criminal process play out. This move, if the S.Ct. approved, would cause dangerous gamesmanship in future political contests - including those that the AG may find herself in if she holds a different office. Hopefully the briefing schedule will be long enough to let this bad idea die a quiet death.

Comment by phocion Wednesday, Dec 17, 08 @ 10:51 am
Good political move for the AG, but if successful a bad precedent for the state.

Once the first governor is set aside under this provision, it could lead to more use of the rule. Worse, it could lead to frivolous use of the rule for strictly partisan political purposes. My understanding of the rule is that any citizen can bring the question, not just a constitutional officer. If it’s successful, expect to see a rash of these whenever a significant minority of the population (or a significant interest group) is harmed by a gubernatorial decision.

Comment by Gadfly Wednesday, Dec 17, 08 @ 11:05 am
It is absolutely the right thing to do. Of course the General Assembly should impeach Blago, but this is another avenue.

I don’t think it sets a dangerous precedent. I think NOT removing Blago from office, one way or another, creates a dangerous precedent. Just because it happens once, during this unprecedented time in Illinois, doesn’t mean it will happen often.

Comment by Anon Wednesday, Dec 17, 08 @ 11:08 am
It is a bad idea. It looks like political grandstanding on the AG’s part. Without repeating many of the insightful comments posted here by some, I offer this observation. The Supreme Court will refuse to answer any “political questions” presented to the court. Absent a focus solely on the Governor’s physical and/or mental health, questions which are essentially scientific, medical endeavors with clear standards having been set out in the legislature and at common law, much of what the AG raises goes to the political question of whether he can truely govern. It is one thing to declare him medically incompetent, it is quite another to declare him politically incompetent. The former is a legal question, the latter a political one. Leave it to the Legislature that can answer either or both.

Comment by Black Robe Wednesday, Dec 17, 08 @ 11:11 am
All this occurs in a political universe. The AG is a politician. She is not prosecuting a crime, but pursuing a political case and a political remedy. The Court will likely dump this case. When it does, the AG will say that she disagrees with the decision, has done all she can do, and will have clearly distanced herself from RB for all future political purposes.

Comment by Anon III Wednesday, Dec 17, 08 @ 11:13 am
spinless run-around

Looks like a typo;-)

Comment by Six Degrees of Separation Wednesday, Dec 17, 08 @ 11:21 am
This is not a good idea. The judicial branch will say that there are other means to remove him from office that must be pursued before they take on the responsibility of removing the gov from office. BTW, when will the supreme’s be commenting on the TRO filed last week?

Comment by tubbfan Wednesday, Dec 17, 08 @ 11:22 am
Yes, it is the right thing to do for Illinois. I want our leader to try every play inthe book so that they can remove Blagojevich ASAP. He has done enough damage to the people of Illinois and our focus needs to be on public service, not politics. Don’t we want an AG that tries every play in the book?

Comment by Anonymous Wednesday, Dec 17, 08 @ 11:45 am
I think it’s right. Blogojevich is the one setting the dangerous precedents.

Comment by Ahem Wednesday, Dec 17, 08 @ 11:45 am
If letting Rep. Black sleep late is a higher priority than the impeachment hearings, why is Lisa Madigan’s case against Blagojevich a priority for the Illinois Supreme Court?

My reading of the Illinois Constitution is that impeachment exists to deal with transgressions like the ones Blagojevich is alleged to have made.

The Supreme Court has the power to act in cases where the legislature does not have power to act.

There is no “clear and bright” line that justifies action by the Supreme Court. They are being asked to make a very subjective ruling on the governor’s mental health.

For a mental health professional to make a diagnosis of an individual (absent schizophrenia and other completely disabling conditions), the mental health professional needs to be able to confidentially interview the subject. There are limited things a mental health professional can do with with information provided in a confidential interview. The information can only be used against the individual’s interests when s/he poses a risk to him/herself or others.

The Illinois Supreme Court should not be ruling on Blagojevich’s mental health unless there is no other way forward.

The Illinois Supreme Court should quickly and clearly say that it will not act before the legislature deals with impeachment.

Comment by Carl Nyberg Wednesday, Dec 17, 08 @ 11:47 am
Yesterday, I posted the DSM-IV definition of a “Narcissistic Personality Disorder”, the condition that seems to fit Blagojevich the best.

But the definition would seem to apply to many politicians who aren’t as dysfunctional as Blagojevich.

A pervasive pattern of grandiosity (in fantasy or behavior), need for admiration, and lack of empathy, beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following:[1]

1. has a grandiose sense of self-importance
2. is preoccupied with fantasies of unlimited success, power, brilliance, beauty, or ideal love
3. believes that he or she is “special” and unique
4. requires excessive admiration
5. has a sense of entitlement
6. is interpersonally exploitative
7. lacks empathy
8. is often envious of others or believes others are envious of him or her
9. shows arrogant, haughty behaviors or attitudes

How many politicians score at least five of nine in the eyes of their enemies?

If the same party controls the Illinois Supreme Court and the AG, do we want them to be removing the governor based on a “Narcissistic Personality Disorder” diagnosis? Action by the Supreme Court only requires a majority vote, right?

Comment by Carl Nyberg Wednesday, Dec 17, 08 @ 11:54 am
The problem here is that the options are limited. The impeachment process is *not* going to be quick, if for no other reason than it gives legislators a chance to beat the governor like a second-hand pinata. Rich has said time and again that the sole requirements for impeachment is for the house to vote to impeach. No hearings - no investigation - just a vote. The fact that the show is going on means that this will not be quick. So either the AG sits and watchs or she does something. Ulterior motives aside, don’t forget that others have filed the same motion as the AG - so if she hadn’t filed, the issue would still be under consideration by the Supremes. So I don’t think her actions were the wrong thing because she’s doing what she can within the limits of her power.

As for precedent, judges do have the option of saying a ruling doesn’t establish precedent - recognizing the unique nature of a particular set of circumstances. And even if it does - the court doesn’t have to entertain every motion filed before it. Like SCOTUSm the Illinois Supreme Court can choose not to hear the motion. So I think the checks-and-balances are in place to reduce the opportunities for abuse.

Comment by Name Withheld Wednesday, Dec 17, 08 @ 11:58 am
As I said before, as a lawyer and a specialist in disabiltiy law, it is clear to me, when reading the entire section involved, that this section is dealing with the removal of a governor who is unable to continue to serve for mental or physical impairment related reasons. The provision which allows the Supreme Court to act, I believe, was intended to cover the situation where, for example, a Governor was perhaps from one party and the Lt. Gov. was from another party, and the legislature was controlled by the same party as the Gov., and, hence, did not want to take any action even though the Governor was clearly impaired in that sense. It was not, in my opinion, intended to allow the Supreme Court to take action on it’s own, particulary where, as here, impeachment procedings have already been commenced and not concluded.

This appears to me to be simply a political stunt by the Attorney General to generate publicity for herself for her own future run for governor, and, if it were to be taken up by the Court, would set an extremely dangerous precedent.

I can only hope that Bob Thomas and the Supremes do not rise to the bait.

Comment by MikeintheSuburbs Wednesday, Dec 17, 08 @ 12:01 pm
As for precedent, judges do have the option of saying a ruling doesn’t establish precedent - recognizing the unique nature of a particular set of circumstances.–Name Withheld

As far as I know the only example of a court saying its ruling is not to be used as a precedent was Bush v. Gore.

I do not want to live in a society where courts make arbitrary rulings that are not binding as precedent.

You might as well have the king decide cases by who he likes better.

Making rulings binding as precedent for powerful people creates a situation where powerful people are invested in the courts ruling fairly for everybody. If powerful people can get special treatment then they aren’t invested in making the courts work for everybody else.

Comment by Carl Nyberg Wednesday, Dec 17, 08 @ 12:10 pm
If nothing else is accomplished via Lisa Madigan’s lawsuit it at least shows the country that Illinois can’t get rid of Blago soon enough. I wish there were more entities that could pile on top of him.

Comment by Little Egypt Wednesday, Dec 17, 08 @ 12:17 pm
One political family hack saying another political family hack is not fit to perform his duties… please. If this was the criteria… Springfield would be a ghost town.

Comment by Nero Wednesday, Dec 17, 08 @ 12:19 pm
Setting aside some of my other concerns about the pleading, I beleive it is the right thing to do.

For those saying this isa political process that should be left to the legislature you have made a fundamental flaw in your analysis: you are assuming the legislature is divorced from the judicial action. this is incorrect. The legislature passed the statutory framworks, or laws, for judicial intervention in emergencies. this is more commonly seen as hearings for Temporary restraining orders, temporary injunctions and ultimately, permanent injunctions. Thus the legislature in Illinois vested the jusdicial branch with authority to interven to protect private individuals or the public when certain criteria are met.

A proceeding for a restraining order to stop illegal or damaging conduct by the judicial branch comes not only from common klaw, but from th legislature. The legislature has no ability to temporarily restrain the excercise of authority, it relie upon the judicial brach for such decision.

While the legislature has broad power to remove for political reasons, the Judicial has a corresponding check on executive authority based upon disability. The Legislature never sought to revoke this authority by law, and has therefore by its silence ratified such authority.

The question of whenther the various laws and authority at play in this case were intedned to allow anyone to seek the various protections afforded are for the court to decide.

She needed to ask and should seek to invoke the judcial branches authority by asking the judciail branch to decidie if it should take a role in protecting the State under the circumstances presented here.

that folks disagree with the outcome does not mean asking the question is wrong or should have been avoided. In the contrary, the court is the vehicle set up by the legislature to provide emergency potection, and so to the courts we should go to restarin further action and consider removal.

Comment by Ghost Wednesday, Dec 17, 08 @ 12:35 pm
As I have posted before, this move seeks to put the Supreme Court in the role of political “Button Man” for the sake of convenience, or other motives that I hesitate to mention, as they will divert attention from the real issue, which is whether this move is healthy for the Supreme Court’s role in our body politic.

The legal argument on how the present circumstances constitute a “disability” within the meaning of the legal provision is very thin - at best. It was essentially a subjective argument that he has been charged (but not convicted) of criminal conduct, we would do better without him, and nobody likes him anymore. There is not one factually similar legal precedent offered to back it up.

I beg all to see this not in terms of the next few weeks, but the next few decades, if not a century. It sets a dangerous precedent, in which a physically healthy, mentally alert governor is removed by a Court of seven because of subjective opinions on his behavior and ability to obtain political cooperation. That is the stuff of impeachment, not proceedings in the Supreme Court.

Comment by Bubs Wednesday, Dec 17, 08 @ 12:46 pm
Terrible, terrible idea. RRB can show up at the office, read documents, and sign his name. Madigan is essentially that he’s disabled because he would do those things with ulterior motives and using very poor judgment. Well, duh.

On those grounds half the politicians in America would be subject to removal from office. If Madigan wants to argue that he’s clinically psychotic, fine. Let her do so and ask for a fact-finding hearing. Otherwise this is impeachment by other means, and it needs to be left to the legislature.

Illinois doesn’t have much of a reputation left, but if this happened, it would make the state look like the worst sort of banana republic.

Comment by Muskrat Wednesday, Dec 17, 08 @ 12:54 pm
We are confusing legal questions with political questions. Impeachment is a political question, while the action before the Supreme Court is a legal question. If “mental disability” were to include what is alleged that the Governor said on tape, the Supreme Court would need some evidence, e.g. expert opinions. The Governor would undoubtedly be able to gather some expert opinions that he is qualified to serve within the meaning of the Rule. Would the Supreme Court then need to appoint a current or retired judge to resolve the question of fact? Which judge or retired judge gets to make that determination? If you are looking for a swift resolution, the examination of the Governor to determine his qualification to serve by a panel of experts may take longer than the impeachment process.

Comment by Draggin' Slayer Wednesday, Dec 17, 08 @ 1:03 pm
Wrong. Wrong. Wrong. First, as Lisa made clear in her brief, the “disability” which the rule was written for was intended for a physical or mental disability which would make the Governor unable to perform his duties. That was in the legislative record, and, despite the fact she tried to expand the definition of disability, the Governor is still able to physically do his job. The rule was intended as a kind of 20th Amendment protection, allowing a Lt. Gov. to take over TEMPORARILY in the event the Governor had a stroke or emergency surgery or whatever. It was not intended as a way to remove a poltically unpopular or even disfunctional Governor.

Second, the court cannot permanently remove the Governor from office while there is a provision in the Constitution for impeachment. That is the process spelled out, and that is the one which must be followed. If the court did decide to intervene, they would be very close to violating the poltical question doctrine and the seperation of powers doctrine. Major constitutional issues that cannot be taken lightly by the court.

Third, the Governor would have to be afforded due process in the courts in this proceeding and the taxpayers WOULD have to foot the bill for this argument.

Fourth, it does set a very dangerous precedent, and sicne we wont have a new constitution for (10 or 20 years?), we must worry about precedent.

This is just grandstanding so she can get her name on national TV and so that she has some cover when people lump all Dems in with Blago (which they all deserve, including Lisa - BTW, as far as I’m concerned, Cross should not be allowed to keep his leadership position after this). This would not be a big deal, except lawyers are not suppose to bring erroneous arguments to the court. She is close (but not very close) to violating the ethics provisions of the Illinois Bar for this stunt, which is eactly why she never should hae done it.

Comment by Law Student Wednesday, Dec 17, 08 @ 1:27 pm
Um, NO! A transparent power play by Lisa Madigan (and the Madigan dynansty).

Comment by Black Ivy Wednesday, Dec 17, 08 @ 1:53 pm
I think it would have set a bad precedent, and I think it looked like a power play; the correct way to proceed with the complaint Madigan had is the impeachment process, not claiming disability.

But the real worry was not as much precedent as that this could have set off a huge constitutional crisis. Imagine for a moment that Madigan succeeds in convincing the court to
“remove” Blagojevich. Quinn “takes office” and appoints someone. A
Blagojevich supporter then files suit to block this, on the basis that
Blagojevich is still governor. Suddenly the seating of the senator has
to wait for this to wind through court (presumably with appeals going
all the way up to SCOTUS, judging the Illinois constitution and law, or
the US Senate, who sort of has its own jurisdiction over this because of
the elections and qualifications clause, or—and here’s the biggest
problem—both). Even worse, imagine both Quinn and Blagojevich make
appointments….

Comment by blahedo Wednesday, Dec 17, 08 @ 3:26 pm
I fail to see how Blagojevich has a disability no matter how you stretch the term. He has no known physical impairment, his cognitive ability seems to work just fine, there is no known medical condition, he has no known psychological or psychiatric impairment. You may not like what he says or does (and he seems to have gone out of his way to do some really dumb things), but he is a long way from being disabled in any degree. It is a nice try by LMadigan but the the basic arguement that the disability angle simply being grandstanding seems appropriate.

Is Blagojevich setting new lows in how to be a governor? OK. Is he self centered because he is using the office for his own benefit? OK. Of course no other current politician does the same thing. Has the long standing fight with Madigan finally come to a head? No doubt. Blagojevich has had plenty of time to make nice, do politics, and compromise while doing what he promised in the first election. Instead he preferred the my-way-or-the-highway philosophy that burned any bridges for partnership with minimal regard to any type of long term financial responsibility. And now he has almost no one willing to stand up for him unless they get paid. Seems exactly like the Boss in Dilbert. That’s hardly a disability. If Rod does not want to be the Governor for two more years like the complaint claims he said, simple solution–resign and move on. But no, now he has a fight where he can feel self righteous regardless of what happens to the state operations. The “What’s in it for me” philosophy to the hilt. Glad to see the GA finally stepping up with some minimal backbone. Should have happened several years ago.

Comment by zatoichi Wednesday, Dec 17, 08 @ 5:33 pm
Despite the outcome, it was the RIGHT thing to do.

It seems too many of our legal beagles are unable to parse the meaning of Article V, Section 6(a). The term “disability” here clearly includes death, resignation, impeachment, and any “other” circumstance which makes the Governor unable to execute his duties. Thus, the meaning of the term in this context cannot be limited to physical or mental dysfunction. Whether any set of circumstances rises to this level is for the body designated in Section 6(d) to determine.

Second, there is no distinction here between “political” and “legal.” This is solely a political question and, at its root, the Court is a political actor, a co-equal branch of the government. It is as legitimate for the Court to consider the performance of the Executive as it is for the Legislature to do so.

Third, concerns for “precedent” are misplaced. The Constitution clearly gives primacy to the Legislature when determining the procedures and criteria for involuntarily temporarily stripping the Governor of his powers (not his Office). See Section 6(d). However, as others have noted, the Assembly has utterly failed to set such procedures or criteria, thereby defaulting to the judgment of the Court. However, nothing makes this a permanent condition; the Assembly, at any time, may enact such a law giving itself the duty and describing the process for doing so, or it may assign that duty to the Court, or to any combination of Executive Officers, or even to the People via referendum. Thus, any action by the Court in this instance would not be precedential in any sense that the Legislature could not dispense with through legislation.

In fact, instead of the focus on whether to hold a Special Election, there should be calls for a Special Session to cure the dereliction of prior Assemblies in failing to set procedures and criteria under 6(d)! Then perhaps that procedure could be applied immediately! (Heaven forbid things drag out so long for that to be possible!) Future Governors or other Officers have nothing to fear from Court action in this context.

The Court should be ashamed of its dismissal of these motions without explanation.

Comment by Oberon Wednesday, Dec 17, 08 @ 7:10 pm
It’s just Lisa Madigan trying to keep her name in the news cycle.

Comment by elgin Wednesday, Dec 17, 08 @ 9:53 pm
blatant political play by the Madigans. MJM drug his feet last week to give Lisa the media spotlight. The Supremes made the right decision. Now the GA needs to do their job.

Comment by FlackrBackr Wednesday, Dec 17, 08 @ 11:28 pm
I thought the dual approach was a very reasonable way to go. I was hopeful that the court would at least issue a restraining order given the clearly apparent danger. Restraining orders are generally issued to maintain the status quo in light of a danger of irreversible harm. The governor represents such danger. I am disappointed in the court’s action or should I say inaction. However, I was just reminded that the court itself is elected as well.

Comment by Domer 84 Thursday, Dec 18, 08 @ 5:32 am
The Governor would have to be afforded due process in the courts in this proceeding and the taxpayers WOULD have to foot the bill for this argument.
jack

Comment by jack Thursday, Dec 18, 08 @ 5:51 am