Thanks to Illinois Review and Backyard Conservative for cross-posting this piece.
The Brief and supporting motion papers filed by the Illinois Attorney General with the Illinois Supreme Court in support of the request to remove Gov. Rod Blagojevich, now are available online. I have no idea what the Illinois Supreme Court will do on the motion, or if Gov. Blagojevich will resign prior to the Court ruling, but I can tell you that the papers are very, very weak. Embarrassingly weak. If submitted in my course by a 2nd or 3rd year law student, I would give the student a C-, with a chance to redo the papers to get a higher grade. Here’s why.

The constitutional provision at issue is Article V, Section VI(b) of the Illinois Constitution, which provides as follows:

If the Governor is unable to serve because of death,conviction on impeachment, failure to qualify, resignation or other disability, the office of Governor shall be filled by the officer next in line of succession for the remainder of the term or until the disability is removed.

The Illinois Attorney General has taken what she acknowledges to be an unprecedented step in asking the Illinois Supreme Court to declare a sitting Governor “unable to serve” because of a non-physical “disability.” That “disability” according to the AG is (a) the inability of the Governor to put the interests of the State ahead of his own political interests; (b) accusations of criminal and unethical behavior which have caused other politicians to call on him to resign; (c) operational issues regarding state government caused by the foregoing. This argument is extraordinarily weak, and for grading purposes, is not well presented.

The AG argues that the term “disability” is “unambiguous,” yet spends several pages struggling to come up with a definition which helps her. The AG takes this position because, as the AG acknowledges, the legislative history is not favorable to her interpretation of the term. The AG argues that anything which impairs a Governor’s ability to make decisions in the interest of the State, whether due to criminal or ethical lapses, constitutes a “disabling” condition, and therefore a disability. The AG uses the dictionary definition of “disability” to reach the conclusion that being “unfit” for office constitutes a “disability” under the Constitution. The argument comes without any authority whatsoever where any court has interpreted such a non-physical condition, indeed mere accusations of wrongdoing, to constitute a “disability” sufficient to remove a Governor. If you are going to ask the Court to take unprecedented action, at least give some authority other than contorted references to the dictionary. Weak.

More important, the AG ignores the Illinois statute which provides for the terms of succession. 15 ILCS 5/1(a), the Governor Succession Act, provides in pertinent part, as follows: “In the event that the Governor, for any of the reasons specified in Article V, Section 6 of the Constitution of the State of Illinois, is not able to exercise the powers and discharge the duties of his office, such powers and duties of the office shall be exercised by the officer next in line of succession….” (Italics added.) So as interpreted by the Illinois legislature, in order for there to be succession, there must not only be a disability, that disability must result in the Governor not being able to exercise the powers and duties of the office. This language contradicts, or at least severely weakens, the argument that merely being ethically “unfit” for office is the equivalent of a constitutional “disability.” Weak again.

The AG’s argument also expands the Supreme Court’s authority to strip an executive of powers so far as to remove any semblance of separation of powers, even though separation of powers is spelled out in Article II, Section I of the Constitution (“The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another”). The AG violates a fundamental rule of statutory construction, which is that you don’t read a statute or constitution such as to read some provisions out of existence. Weak again.

Moreover, if being ethically or criminally suspect (not even convicted) were enough to render a Governor “unfit” and therefore under a “disability,” then the Courts would end up being the referee of political disputes and accusations, in violation of the separation of powers provision. This leads to an absurd result, again in violation of normal rules of statutory construction. Indeed, the AG repeatedly cites the public opinions of Barack Obama, Harry Reid, and other politicians as to what they think should happen to Gov. Blagojevich. Are you kidding me? Is the Attorney General really suggesting that the Illinois Supreme Court should reach a conclusion to strip the elected Governor of the State of his executive powers because his political opponents think it would be best? Can’t the State’s chief legal officer come up with something better? Weak again.

The AG also does not address the existence of the alternative legislative impeachment process, other than to say that it might take too long. The failure to address this alternative other than in passing requires at least a full grade level deduction. If a criminal or ethical taint were sufficient to constitute a “disability,” then there would be no need for a constitutional impeachment provision in the Illinois Constitution, which gives the sole power of impeachment to the House of Representatives, with trial in the Senate, presided over by the Chief Justice of the Supreme Court. The AG again construes the Constitution in such a way as to render one of its provisions meaningless.

What is most shocking about the AG’s papers is that I expected so much more. Some case authority. Something other than strained arguments based on the dictionary. Something more highbrow than quoting Barack Obama and Harry Reid. The AG may end up winning this case, but not on the strength of her papers. C-