December 14, 2008

Let's read AG Lisa Madigan's brief against Governor Blagojevich.

Here's the PDF of the brief filed with the Illinois Supreme Court. As explained in previous posts, Madigan's attempt to oust the Illinois governor relies on Article V, Section 6 of the Illinois constitution:
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.
Madigan needs to establish that Blagojevich's political and legal troubles amount to an "other disability" within the meaning of that text.

The legal argument in the brief is embarrassingly inadequate, quoting the dictionary meaning of "disabled" and saying over and over again that the meaning is "plain" and the "plain meaning" governs. (If I could do a word search on that PDF, I'd count the number of times the word "plain" is repeated. Just for a laugh.)

And that's the extent of the argument about the meaning of the constitutional text.

Madigan sweeps aside a quote from the debate about the provision that shows the framers intended "other disability" to refer to "physical or mental capacity." And she says nothing about the procedural safeguards of the impeachment process or the reasons why courts should or should not involve themselves in political questions.

ADDED: Beldar -- who links here -- says:
Even though it would remove the reins of power from the hands of a crook, using the "disability" provision of the Illinois constitution in lieu of impeachment would be legally, politically, and intellectually illegitimate....

That Blagojevich is a banal, petty crook has been "obvious" to anyone who cared to see such things long before he was indicted and arrested. Under a practical, common-sense standard, that should have been obvious to the voters of Illinois who nevertheless elected and then re-elected him.

But elections have consequences. Among them is the fact that once a crook is elected, constitutional niceties must be observed to remedy the situation.
Exactly! Of course, Beldar also thinks Blagojevich ought to resign, and I certainly agree. And he has a lot more than that to say, which you ought to go over and read. He's critical not just of Madigan and Blagojevich, but also of the legislators and the voters in Illinois who -- as the saying goes -- "got the government they deserve."

I also really liked this comment by Chicago Sun-Times columnist Mary Mitchell, on this morning's "Meet the Press," on the difference between what Blagojevich is accused of and the sort of trading favors that happens all the time in politics:
Reality check. Pay to play, everybody knows it, even--not just in politics. Office politics, pay to play. You know, if you know the boss and the -- and you, you, you need something from the boss, he's going to look around and find the person going to do him the most good. He's not going to hire -- you know, put somebody in a place of power that isn't doing him any good. That's the world. That's how the world works. But there is a line. You got to know how to play the game. And Blagojevich, Governor Blagojevich was tacky in playing the game. That's what people are upset about. They're embarrassed that this man had the nerve to get caught on the wiretap using foul language, actually giving voice to, you know, the wink and the nod thing. He didn't just wink and nod, he actually tried to shake people down, according to the wiretaps.
Governor Blagojevich was tacky in playing the game. And he got recorded saying dirty words.


vnjagvet said...

Her performance in oral argument was even more embarrassing.

One of the SC justices asked her whether the ambiguity of the term "other disability" bought into play the legislative history. She said something like the meaning of the term was plain.

Lame performance for an AG.

Wince said...

I do think the TRO request in the complaint with respect to certain implicated matters is more reasonable, even if not authorized by statute.

Under (state) separation of powers, would the Court need something other than it's equity powers restrain the executive?

Couldn't restraint of those activites also be made a condition of Blago's bail? Like an accused child molester told to stay away from playgounds and schools. Wouldn't the federal court have to do that, and wouldn't that raise other issues of federalism?

Ann Althouse said...

vnjagvet, that was just the press conference. I thought it was the oral argument, but was wrong. The reporters asked good questions! I think the oral argument is Monday.

EDH, the state constitutional provision, at (c) gives the court the role of applying the part cited in this post. As to bail, he's already out on bail, and in any event, it's hard to see the federal court seeing that as its proper role. The man is the state's democratically elected leader. He may have abused his power, but that doesn't mean there isn't a danger that other people, like Madigan or the judges, will also abuse power. That's what I'm looking at.

Anonymous said...

Lawyers love to waste people's time with crap. She's blindly bumbling after Blago.

Remember Chicago is Second City. We have a Governor over in New York who still has to find someone to replace Hillary.

I just hope he's not going to let a Governor from a chumpy little Midwest state upstage New York.

Beldar said...

FWIW: Using Adobe Acrobat 8.1 I did an OCR scan of the .pdf file, then text-searched for "plain." Most entries were for "plaintiff" or "complaint" or "explain[ed]," but the word "plain" appears a total of eight times, all in the initial brief (as opposed to the affidavit).

bearbee said...


What an absolute slug he is.

He would hold Childrens Memorial Hospital state funds hostage to a campaign donation.

S&P Rating may downgrade Illinois general bond rating.

What's holding up the impeachment?

Abner Mikva is a decent man. Put him in Obama's seat.

Why does the name Barry Gross sound familiar?

Kirby Olson said...

Can a person be considered morally if not legally incapacitated?

He can at least stay until he is clearly guilty of a criminal offense. I don't think "moral" judgements mean anything. Legal judgements do mean something.

Spitzer could have stayed if it were only the moral judgement against him for having abused his wife's trust, and having slept with the ho. But Spitzer also had legal judgements pending, and plea-bargained.

My guess is that Blagojevich (Yugoslavian name?) has the moral scruples of a Slobodan Milosevich, and will probably never admit wrong-doing on his own, but he might pragmatically plea-bargain. Perhaps his behavior is meant to place the whole state of Illinois in jeopardy so that the charges are reduced, thus freeing him from charges. He's using the state of Illinois as a human shield.

So it will require clear legal proof that has passed the muster of a court that will get him out, and even then, he will probably never admit it to himself that he went wrong somewhere. Milosevich never did, did he?

He seems to care only about himself.

Probably not that unusual in politics, especially out of that state.

David said...

Lisa Madigan is as big a hack as Blago. She has advanced on family connection and name recognition. The corruption of Illinois politicians is embarrassing. So is their general incompetence.

The greatest joke, of course, will be if the Illinois Supreme Court takes her petition seriously. If this is not a political question, what is?

KLDAVIS said... AG whose only qualification was being the daughter of a long-time politician is bad at her job?

Professor, I would have thought you'd be more aware of the political situation in Illinois living just across the border.

sirpatrick said...

Aren't you getting a little suspicious about this sudden rush to declare Blagojevich as having a mental disability? We have all seen our share of scandals and political corruption, but when is that last time the alleged perpetrator's own party tried to have him declared mentally unfit to remain in office?

I am starting to believe this is being orchestrated by the Democrats so as to cast aspersions on Blogojevich's credibility and to marinalize him so that once he starts spilling the beans about all of the political corruption in Illinois and/or DC , people can say : "You can't believe him he's nuts!".

It makes me think this political scandal is a lot worse than was initially anticipated...

KLDAVIS said...

'plain' appears 64 times, though usually as part of complain, explain or plaintiff. On its own, plain appears 8 times.

JorgXMcKie said...

It looks like the corrupt politics of IL (my home state) are running out like previous crime families. As the corrupt get totally used to being invulnerable to correction, more and more lame relatives take over for the Old, smart Guard.

For instance, Todd Stroger for John Stroger, Emil Jones, Jr for Emil Jones, the US rep family swap a couple of years ago whose name I forget (Lipinski?), and of course Lisa Madigan.

Sooner or later this thing has to fall of its own idiot weight.

As for Blago, he's arguably so far gone as a Narcissistic personality disorder that you can't even depend on him to cut a reasonable deal. This is probably what is driving the IL Dems crazy.

BJM said...

sirpatrick said: It makes me think this political scandal is a lot worse than was initially anticipated...

Exactly my thoughts, Blago is the tip of the Chicago-DC corruption iceberg and the Dems worst nightmare if he turns state's evidence.

In the least the headlines are not helpful to Obama or the Congressional Dems with Rangel's tax evasion and Dodd's sweetheart Countrywide loan on the horizon.

The MSM will give Obama a pass unless a smoking gun appears in his back pocket, but Rangel and Dodd may end up being sacrificial lambs.

Reid's a tool, but Pelosi's a savvy, ruthless Pol who will always choose her survival first and party/agenda second. She will have no qualms about throwing members who threaten the majority under the bus, including a president.

Steph said...

What is it about mediocre daughters named Lisa that breeds nepotism in politics? Mr. Madigan and Mr. Murkowski should be embarrassed.

John Richardson said...

And didn't I just read today that Madigan was added to the "approved" list of IL Sen. candidates by Rahm Emanual in one of his non-discussions with Blagojevich?

It makes you wish for a return of George Washington Plunkitt and "honest graft". At least that wasn't run like an amateur hour.

dick said...


You would think this was an offshoot of Air America when it was taking the money from the Boy's and Girl's Club funding and using it to pay salaries and attempt to keep the corporation running.

I guess Air America is just the Chicago Democrats on a national basis and just as morally limited.

Flight-ER-Doc said...

Madigan (actually, both of them) are sleazy hacks also. Why expect competence from her?

As far as the federal role, how about guaranteeing the states a republican form of government (Art IV, section 4)? Corruption like this is not republican. Or democratic - it's thuggery.

Kaz said...

I think Madigan with her brief and performance at oral arguments has publicly defined her Peter Principle ceiling. By taking herself out of the running for both the Senate seat and the soon to be vacant Governors office, she has rendered the citizens of her state an important service.

section9 said...

See, back in the day the Machine used to put inconvenient people in cement overshoes and dump them in Lake Michigan.

The First Ward used to be run by a guy named Joey "The Bomber" Accardo. He ran a huge protection racket on all the businesses there. His motto was, "You Pay Me Money, Or I Blow You Up...". This, by the way, was after the Billygoat Curse was put on the Cubs by the owner of that Greek Diner under the El Train stop near Lower Wacker Drive (iirc).

Accardo and his people were undone by sevaral U.S. Attorneys and reporters like Mike Royko, who was hated by Accardo's patron, Boss Daley.

The American people are about to get to know the intimate side of Chicago politics. It's really fun. Especially the part where troublemakers turn the ignition and their cars blow up. You good government Wisconsin Law Professor types are spoiled. You're about to see how sausage is really made, and how young, wet behind the ears Presidents are really created.

Lisa Madigan's ambition is so transparent as to get her disqualified from participation in future Machine Politics.

Anyway, Anne, here's an idea for your next class assignment: take Lisa Madigan's embarrassing brief and assign it to your students. Tell them that their assignment is to make it bulletproof, given the facts available to you as of today and what you know of Illinois jurisprudence. Sound like a plan? Be interesting to hear the result.

Separate the Outfit Guys from the Clydes, eh?

Issob Morocco said...

Berwick, you actually believe Veruca Salt Madigan that she doesn't want the Governorship? I take it you don't live in Illinois or else you are just another cog of the machine.

Issob Morocco said...

Amen Section 9. The law practiced here is not taught in Law Schools, but the back alleys, wine rooms of Italian Steakhouses and back seats of Cadillacs. Watch the IL SC render approval on Veruca Salt Madigan's case.

Think of all those spending and bond documents that cannot be signed and monies spread to the machine like warm butter on bread. Remember who choses the IL SC.

Trochilus said...

section9 . . . it would seem the first step in making that brief "bullet-proof" would require a bit of a re-write of the bottom of page 10 and the top of page 11 of the brief. Gee, perhaps it could be amplified just a little!

How about if the AG proposes that the Court adopt what might best be described as the "Wizard of Oz Rule" of constitutional construction?

Stated generally, the rule could read something like this:

In any case of first impression, whenever a Court is:

(a.) called upon to construe the meaning of a constitutional provision that has been invoked by a moving authority as the sole basis for a heretofore untested procedure, such as an action to summarily remove an elected statewide public official from office by resort to a process that avoids granting even a modicum of basic protections, where such protections would otherwise likely be available to that official, at least to some degree; through the normal impeachment process; and,

(b.) it is discovered that the language of the constitutional provision being invoked was the subject of some commentary, however limited, during the constitutional adoption process;

The preferred rule of construction shall be that the commentary should nevertheless be completely ignored, if said commentary, as noted by the moving authority, seems to contradict the meaning being urged by the moving party.

That should cover it, no?

The short description for this "Wizard of Oz" rule of constitutional construction, shall otherwise be known as the "Pay no attention to the commentary behind the provision" rule.

Moreover, it could go on to state that Courts should also rely on whatever general authorities, such as selected dictionaries, collections of common sense quotes and rules to live by, or other happyland citations of support the moving party personally selects, as constituting a "conclusively preferable presumption" or best basis for discerning the true meaning of the constitutional provision, regardless of what the framers (or ratifiers) may have had in mind.

I think it would work for the AG.
Don't you?

And, finally, she could even give a "cf." citation in the brief to the New Jersey Supreme Court decision to utterly ignore the specific state statutory deadline in the Torricelli case, and instead allow him to drop out of the U. S. Senate race past that deadline, and to be replaced on the ballot by Frank Lautenberg, after his opponent had committed all of his election funds to running against Torricelli.

Ciarand Denlane said...

Oh, the brief's not that bad (I've read worse, and this was done under time pressure). For example, AG Madigan doesn't merely "sweep aside" a quotation from the "debate" that shows that the "framers" intended a narrower meaning of "disabilty," but argues (correctly for all I know) that the comment wasn't made by a framer or even contemporaneously with the relevant framing.

With the plain language argument she's playing the only hand she can deal.

More troubling, to me at least, than the legal argument about what constitutes a disability is the argument about how the Supreme Court should go about deciding the factual issue whether Blagovjevich has such a disabilty. As far as I can tell, Madigan wants the Court's process to be to merely assume that that what Fitzgerald has alleged is true. (I think Madigan is arguing that what Fitzgerald says should be taken as true, not just that once any cloud of suspicion is raised it's disqualifying whether or not true. The brief (deliberately?) is not as clear as it might have been in making this distinction.) And there's the bootstrap from nowhere she makes of Reid's threat not to seat whomever Blagovejich appoints, which is itself of doubtful constitutionality.

Granted, the question what constitutes an "other disability" and the question how to go about proving it are not unrelated. A reason not to read "other disability" in the "plain" sense Madigan urges is that it really doesn't explain how the Supreme Court should go about finding facts here and how whatever authority it does have interacts with impeachment.

OK, Madigan might say, the court and the legislature could conceivably have concurrent authority so that it is not a fatal objection that the court's role looks like impeachment (it is a strong objection, IMO, however). Madigan argues that the impeachment will take too long. But the court's process will be more expeditious only because Madigan proposes dispensing with trial and due process.

Issob Morocco said...

Ah, Mary Mitchell, the voice of the machine. It is okay to slip money to pols, pay white males to run affirmative action trucking companies and featherbed with friends and family provided it is done with decorum and class.

Whoever would quote her must not understand her position in running propaganda for the machine. How naive.Yes those dirty words are what Fitzgerald is seeking to root out in City Hall.

Ann Althouse said...

Issob, you're missing the point. I think there is a lot more wrong here than Blagojevich and think we're missing something if we focus on sectioning him off for removal.

Synova said...

Reality check. Pay to play, everybody knows it, even--not just in politics. Office politics, pay to play. You know, if you know the boss and the -- and you, you, you need something from the boss, he's going to look around and find the person going to do him the most good.

Down here in New Mexico an election cycle or two someone snuck a recorder into a Congressional debate and recorded the (former Attorney General?) saying that money from lobbyists or others was just for access, and never to buy her vote. It was Heather Wilson behind the other podium, jumped all over her and said that no one had to pay for access to her office. Not ever.

What struck me most strongly was that someone would not *realize* that they should not say that they would take money to listen to people... as if paying was normal.

Sort of like this Mitchell woman. Business is like that? Office politics? Pay to Play? How? Crawl under the boss's desk? Buy him gifts? Which office is she familiar with where "pay to play" is part of her understanding of how the world works?

There is a reason that "horse trading" is one political metaphor and "pay to play" is another. We frown at horse trading but expect some negotiation between people to get their own projects supported. We do far more than frown at those who sell their vote, or sell their appointments.

And if you work for a boss who makes decisions about appointments based on what is best for the *boss* rather than what is best for the company... get a different job.

Synova said...

Missed some words....

Snuck a recorder into a debate between those running for Congress.

reader_iam said...

Issob, you're missing the point. I think there is a lot more wrong here than Blagojevich and think we're missing something if we focus on sectioning him off for removal.


(And if Blogger would allow commenters to use "u" html and put text in color, I'd do that, too, damn it.)

Issob Morocco said...

Hi Ann, please clarify as to what point I am missing? My posts are calling this out as a larger than Blago scenario. My concern is that you and others here are missing the reality of Illinois politics because you are trying to apply common sense and logic to corrupt politicians. And ones who have spent lifetimes in such activities and have created family trees rooted in it. So please help me understand what I am missing?

Christmas Cheers!

Alex said...

Whatever happened to innocent until proven guilty? Now Blago looks as guilty as Tony Soprano here, but can't we wait until the evidence is officially presented?

RonF said...

The father of Atty. Gen. Lisa Madigan (D) is Illinois State Rep. Mike Madigan (D), who is the Illinois House Majority Leader. Mike and Blago do not like each other. At all. The last thing that Lisa wants is for Blago to sit down at an impeachment trial hearing and start naming names. Hell, her dad's name might come up. Repeatedly. Can't have that.

RonF said...

Dave, you're right on the Lipinskis. That's my district. Dad served as our rep for about 10 terms, IIRC. As is usual, the Illinois Reflublican party only put unfunded token opposition up against him. Then, two elections ago, after he won the primary, he resigned. As per Illinois State law, the Illinois Democratic Committee met to choose his replacement on the ballot. They had their pick of qualified people to choose from. Wonder of wonders, they chose - his son! A professor of Political Science! At the University of Tennesee! Not even a f@#king resident of the District!

When they held the press conference to announce this the good professor looked like the most surprised man in the room. Of course he still faced token opposition and won in a landslide because he had that (D) after his name.

RonF said...

Oh, and as has been debated a bit here, this is not Chicago politics. This is Illinois politics. The Illinois Reflublicans play the game the same way Downstate and in the suburbs. In fact, it's not unheard of to see a Dem from one section of the state help out a Reflub in another, and vice versa. It's more about who's part of the Combine (that combination of officials, contributors, lobbyists and influence peddlers, state contractors, etc.) and needs a hand than who's in what party. Chicago is Democratic, Downstate is Reflublican and the 'burbs go back and forth depending on how close they are to Chicago. But parties are secondary to who you know and what you're willing to pay to play.

Bender R said...

"Blagojevich has been working from his office in downtown Chicago since the day after his arrest, signing bills into laws involving health insurance for autistic children and tax breaks for film producers."
-- Illinois Democrats Let Blagojevich Keep Naming Power

Signing bills is proof positive of NOT being under a disability.

Trochilus said...

Ciarand Denlane . . . contrary to your claim, it looks like Ann's characterization of the definition of disability section in the brief was right on the money when she said:

Madigan sweeps aside a quote from the debate about the provision that shows the framers intended "other disability" to refer to "physical or mental capacity."

It literally jumps right off the paper when you read it.

Byron York at NRO took the time to research the question a little further, and came up with an actual participant who recalled what the intent was -- physical or mental disabilitities.

From Byron's post:

In calling for the Court to remove Blagojevich, Madigan pointed to a section of the Illinois constitution which says the legislature "shall specify by whom and by what procedures the ability of the governor to serve or to resume office may be questioned and determined." Madigan also cited a state supreme-court rule that laid out the procedure for such cases and argued that Blagojevich’s current situation amounts to a "disability" that justifies stripping him of his powers.

But the constitutional provision cited by Madigan was written to deal with a governor who suffered a physical or mental disability — not a political one. "There is a history of the word 'disability,' says Ann Lousin, a professor at Chicago’s John Marshall Law School who was a researcher at the Illinois constitutional convention when the provision was written nearly 40 years ago. As Lousin recalls, the lawmakers were mindful of the case of Henry Horner, the Illinois governor who in 1938 suffered a massive stroke but did not leave office. (Horner died in 1940, just before his term would have ended.) "The people who were at the constitutional convention…were people who remembered Horner, they knew the situation, and they wanted to put something in," Lousin tells me. "It was absolutely physical and mental disabilities."

So your earlier claim that "I've see worse" may technically be true, but your assertion that it is "not that bad" is risible.

Given the resources available to the AG to get it right in piecing together a "brief" as important and far-reaching as this one, she should have made sure of the arguments, instead of making her actions look like a naked power grab. Instead, she ends up looking like just one more self-serving Illinois politician.

Unknown said...
This comment has been removed by the author.
Unknown said...

Putting aside the debate over what "other disability" means, let's examine the text. Doesn't the phrase, "or until the disability is removed," suggest that the "disability" is some sort of physical or mental incapacity? I don't know what Illinois's statutes of limitation look like, but this phrase is quite similar to language used in the Tennessee SoL that tolls the running of the statute during the mental incapacity of a potential plaintiff.

To wit, Tenn. Code Ann. sec. 28-1-106:

"If the person entitled to commence an action is, at the time the cause of action accrued, either under the age of eighteen (18) years, or of unsound mind, such person, or such person's representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from the removal of such disability."