Le·gal In·sur·rec·tion

Thanks to Open Line Blog and Capitol Fax for cross-posting this piece.
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On Friday, December 12, 2008, Illinois Attorney General Lisa Madigan filed a motion in the Illinois Supreme Court seeking emergency injunctive relief removing Gov. Rod Blagojevich from office, or alternatively, stripping Blagojevich of his executive powers. On December 17, 2008, just three business days later, the Court denied the motion without explanation, and also denied AG Madison's request for permission to file a complaint seeking permanent relief. That the Court denied the motion without even requiring Blagojevich to file an opposition reflected the complete lack of merit in AG Madigan's legal position, as well as the weakness of papers.

Looking back at the sequence of events and papers filed by the State, it seems clear that AG Madigan could not possibly have expected victory on the merits. As detailed below, the alleged emergencies cited by the State were not true emergencies, and in the case of bond funding, were based on an incomplete presentation to the Court. Legally, the State's papers were cursory and not befitting the weighty nature of the legal issues.

Why then was the suit brought? The only reasonable conclusion is that AG Madigan hoped for the Court to make a political, not legal decision. At a minimum, the following questions need to be answered:

1. Should AG Madigan have recused herself? AG Madigan was reported to be a potential challenger to Blagojevich in the next gubernatorial election. Blagojevich also reportedly was considering appointing Madigan to Barack Obama's vacant Senate seat in order to remove Madigan as a challenger. As a potential challenger and appointee, AG Madigan hardly was disinterested in the outcome of the lawsuit.

The first mistake AG Madigan made was not to step away from the situation, and appoint someone else to make decisions as to the legal challenge to Blagojevich. AG Madigan had come under criticism immediately after the news conference held by U.S. Attorney Patrick Fitzgerald announcing federal criminal charges, with some claiming AG Madigan should have acted sooner herself. In this circumstance, with her political future on the line, AG Madigan must have felt pressure to act.

I assume that AG Madigan believed she was acting in the best interests of Illinois by rushing to court just three days after the Fitzgerald news conference. Nonetheless, the conflict of interest (both real and perceived) should have been obvious to her and to those around her prior to the filing. Not surprisingly, at the press conference after the filing, numerous questions were asked of AG Madigan about her conflict of interest.

The nature of AG Madigan's conflict of interest may not have been an absolute bar to her actions; I have been unable to find any specific rule which would have required her to recuse herself under these circumstances. Sometimes, however, it is necessary to go beyond what the law requires in the exercise of good judgment. Here, good judgment would have been to allow people who did not have a political interest in the outcome to tailor the legal strategy, so that personal political motivations were not ascribed to the State's legal actions.

2. Why did the State rush to Court when there was no rush? The State needed to show the Court that there was an emergency requiring Court action to avoid irreparable harm. Absent such an emergency, there would be no basis for the Court acting quickly, regardless of what the Court thought of the underlying merits of the suit. At a press conference announcing the filing of the lawsuit, AG Madigan stated that emergency court relief was needed because "state government is paralyzed by a governor who is incapable of governing.... we thought it was important to file a TRO because of the urgency of this." There were three possible emergencies cited in the State's papers, none of which was a real emergency:

►Loss of Faith In Government. In the court filings, AG Madigan laid out the negative impact on the public faith in government of Blagojevich remaining in office. Assuming this to be true, such a circumstance was not new and not an emergency. There had been public complaints regarding Blagojevich's alleged corruption for months if not years, to the extent that in June 2008, Speaker of the House Michael Madigan circulated "a memo outlining how legislative candidates can call for impeachment hearings against the governor, calling corruption during his tenure 'a tumor.'"

AG Madigan's office also had been involved in the investigation of Blagojevich. At a Meet The Press television appearance on December 14, AG Madigan stated as follows:

MR. GREGORY: Let me press you on this. You talk about the charges that are in the criminal complaint, which, by the way, is not actually an indictment, it's not a formal charge against him. Are you aware of any of the evidence against him beyond what the public is aware of?
MS. MADIGAN: Well, what I can tell you is that our office has been involved in providing assistance and information to federal law enforcement authorities all along.
MR. GREGORY: So you're, you're aware of other evidence beyond what's in that complaint?
MS. MADIGAN: All I can tell you is that our office has provided information assistance to federal law enforcement authorities.

So clearly, Blagojevich's general alleged misconduct may have been a problem, but it was not an emergency or a surprise justifying Court action.

►Obama's Open Senate Seat. Another possible emergency was the possibility that Blagojevich would appoint someone to Barack Obama's open Senate seat as a result of bribery or other misconduct. As of December 12, 2008, however, that was not a realistic possibility. As a result of Fitzgerald's news conference on December 9, 2008, by December 10, "Democrats in the United States Senate [were] warning Gov. Rod Blagojevich not to name a replacement for President-elect Barack Obama, hinting they may refuse to allow his choice to take the Senate seat." Harry Reid, majority leader in the Senate openly suggested that the Senate may not seat a Blagojevich appointee, and sent a letter signed by dozens of Senators to Blagojevich asking him to resign. (The letter is included as an exhibit to AG Madigan's papers.)

As of December 12, 2008, when AG Madigan filed her papers and held her press conference, the likelihood that Blagojevich would appoint someone to Obama's seat based on cash or other payments, and that such a person would be seated, was small or non-existent. Again, AG Madigan raised an important issue, but not one justifying or necessitating emergency Court action.

►Bond Funding. The third and primary emergency set forth in the Court filings was that the ability of the State to complete bond financing was in peril because AG Madigan could not certify that there were no legal proceedings threatening Blagojevich's ability to act. On page 7 of the State's Brief, the bond crisis was described as follows:

Further, in light of the federal complaint, a $1.4 billion bond issue scheduled for December 11, 2008, intended to address the State's serious cash shortage and critical need to pay state vendors, was postponed, and Standard & Poor's Ratings Service has stated that it may downgrade the State's general bond rating based in part on the legal charges facing Mr. Blagojevich. http://www.reuters.com/articlelbondsnews/idUSNl144902520081211. [this link, in the original court papers, does not work]

Again, at pages 13-14 of the State's Brief, the bond crisis is described as follows:

Because the integrity of Mr. Blagojevich's future official acts will be in question, his ability to provide effective leadership has been eliminated and the state government is paralyzed....

Further, Mr. Blagojevich's ability to borrow money in his official capacity is compromised. The State has postponed a $1.4 billion short-term debt offering because of the uncertainty over whether the State can provide the necessary accompanying certification that no threatened or pending controversy or litigation challenge Mr. Blagojevich's title to office. The State is also at risk of having its bond rating lowered due to concerns over the pending criminal charges.

At a press conference after the filing, AG Madigan repeated her position that bond funding delays paralyzed the State:

Q General, could give us an example or two of state business you know --
MS. MADIGAN: Sure.
Q -- is not being accomplished because of the governor's situation -- or for maybe -- or can you specifically --
MS. MADIGAN: I'm going to give you one example. Short-term borrowing -- as you are aware, the state of Illinois is behind in paying its bills, in particular to Medicaid
providers. I believe we have a backlog of at least a billion dollars in bills. In order to make those payments, there was short-term borrowing that was scheduled in the very near future. At this point, we -- they have postponed that. And it may be very difficult, if not impossible, to move forward on short-term borrowing, because as part of that process, as the attorney general, I play a number of roles. One is to essentially review and say that the short-term borrowing is legal, but another portion of that requires me to sign a certificate certifying that I am not aware of any proceeding or threatened litigation challenging the authority of the governor to hold his office. And so I at this point would not necessarily be able to sign that, and so I'm currently working with OMB to determine how we can proceed and handle that.

The presentation in the State's papers as to the bond crisis was incomplete, at best. As set forth above, the bond crisis was presented in the court papers as having been precipitated by the criminal charges against Blagojevich. In fact, it appears that the crisis was precipitated by AG Madigan's expression of doubt that she could issue the necessary certification:

A spokeswoman for State Treasurer Alexi Giannoulias said the attorney general's concerns held up the debt sale planned for Thursday. The competitive sale, which was postponed until Tuesday, had been generating good interest from potential bidders in the municipal bond market.

While AG Madigan may have had legitimate concerns about her certification, no solutions to those concerns were reflected in the State's court papers, implying that funding may not be forthcoming any time in the near future. Additionally, the court papers did not mention that the financing had been delayed only until the following Tuesday. The papers implied, but did not state, that there had been an indefinite postponement. Certainly, a postponement of a few days to work out some wording changes sounds less dramatic than the impression created in the State's papers and press statements of an indefinite inability to issue bonds leading to governmental paralysis.

At the time of the court filing, I questioned the wisdom of this stance by AG Madigan, predicting that she would end up having to go back on her representation to the Court as to the inability to complete bond funding. I was right. Just one business day after the court filing, and before the Court had ruled, agreement was reached to complete the bond issuance as a result of wording changes to the certification. Had AG Madigan not considered these wording changes prior to her filing? If wording changes to solve the problem were under consideration, why was the Court not informed that this wording problem would be resolved?

There may have been legitimate concerns about the bond certification, but there was no real bond crisis. To the extent there was a crisis, it was precipitated by AG Madigan's own actions in questioning her own ability to issue a bond certification, and her delay in coming up with the necessary wording changes. Had the Court acted on Friday, December12, or over the weekend, the Court would have done so based on the false impression that the only way to solve the State funding crisis was to remove Blagojevich.

3. On what legal basis did the State expect victory? The legal theory behind the lawsuit was that Blagojevich was "unable to serve" because of a non-physical "disability." That "disability" according to the court papers was (a) the inability of Blagojevich 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 was extraordinarily weak. AG Madigan argued that the term "disability" was "unambiguous," yet spent several pages struggling to come up with a definition which helped her. The AG took this position because, as the AG acknowledged in her papers, the legislative history was not favorable to her interpretation of the term.

Lacking support in the legislative history, AG Madigan argued that anything which impaired a Governor's ability to make decisions in the interest of the State, whether due to criminal or ethical lapses, constituted a "disabling" condition, and therefore a disability. AG Madigan used the dictionary definition of "disability" to reach the conclusion that being "unfit" for office constitutes a "disability" under the Constitution. The argument came without any authority whatsoever where any court had interpreted such a non-physical condition, indeed mere accusations of wrongdoing, to constitute a "disability" sufficient to remove a Governor. If AG Madigan was going to ask the Court to take unprecedented action, she at least should have given the Court some authority other than contorted references to the dictionary.

More important, AG Madigan ignored 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 enacted 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 contradicted, or at least severely weakened, the argument that merely being ethically "unfit" for office is the equivalent of a constitutional "disability." At a minimum, AG Madigan's court filings should have addressed this statute.

AG Madigan's argument also sought to expand the Court's authority to strip a governor 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"). In effect, AG Madigan was asking the Court to violate 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. 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.

AG Madigan also did not address the existence of the alternative legislative impeachment process, other than to say that such process existed but might take too long. The Court's ability to substitute its judgment for legislative impeachment process was the huge legal issue in this case, along with the issue of "disability." The failure to address this issue head on is hard to understand. 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. AG Madigan again asked the Court to construe the Constitution in such a way as to render one of its provisions meaningless.

At every level, from the contrived emergencies, to the selective disclosure as to bond funding delays, to the paltry legal discussion, the motion papers held little likelihood of success. The legal work, though prepared under time pressure, was not to the standards that the people and courts of Illinois deserved on such a monumental issue as the removal of an elected, sitting governor who had not yet been convicted of any crimes.

4. So if there was no real emergency, and little legal basis for the lawsuit, why was the lawsuit filed? Reading the State's court papers, it is hard to come away with a conclusion other than that AG Madigan hoped that the Court would recognize the State's difficult political problem, and make a political decision to remove Blagojevich.

The State's papers were replete with references to the desire of various politicians for Blagojevich to resign. At page 8 of the State's Brief the problem is described as follows:

President-Elect Obama has called for Mr. Blagojevich to resign his office, as has every elected constitutional officer of this State. Mr. Blagojevich has refused to resign. Meanwhile, it is unclear how long impeachment proceedings and, if necessary, a trial in the Senate would take.

At page 14 of the State's Brief the political aspects of the dispute were highlighted again:

Each of this State's elected constitutional officers has recognized the catastrophic crisis in leadership brought about by the federal complaint, and has asked Mr. Blagojevich to resign. The damage to Mr. Blagojevich's leadership ability also is recognized by U.S. Senate Majority Leader Harry Reid, who explained that any appointment Mr. Blagojevich made to the Senate "would raise serious questions." Complaint, Ex. B. So in doubt is Mr. Blagojevich's ability to provide effective leadership that, in fact, the entire United States Senate Democratic caucus requested Mr. Blagojevich to step down as Governor and insisted that he not appoint a Senator. Id.

These calls by Democratic leaders for Blagojevich to resign were completely irrelevant to the legal matters before the Court. To the extent the Senate's possible refusal to seat a Blajojevich appointee was relevant, such facts argued against AG Madigan's position (as discussed above). The entire thrust of the State's papers was political in nature, essentially asking the Court to engage in a political calculation.

Call me hopelessly naive, but I never expected the Court to take on this political role. If the Court had granted the motion to remove Blagojevich, or had stripped him temporarily of his executive powers, the damage would have been long lasting. In such a scenario, the Court would have created a precedent which would have guaranteed that political opponents would rush to the Court on various pretexts to challenge political opponents who had defeated them at the ballot box. The Court would have become nothing more than a pawn in the political game.

The Court wisely chose not to touch this issue by rejecting the motion without explanation. In so doing, the Court avoided an additional danger. By failing to create precedent limiting the circumstances under which the Court could act to remove a Governor, the Court left open the possibility that the Court could act at some time in the future, if there were a true emergency threatening the State.

Some may argue the lawsuit was worth the try, even if it was politically motivated and cynically sought to have the Court issue a politically-based decision. I disagree. Even if successful, the lawsuit would have represented the triumph of politics over the constitutional process, weakening the State of Illinois, the judiciary, and the Office of Attorney General.