More on the Special Session Lawsuit

Rich comes back and offers up a fairly detailed post about the lawsuit filed by the Governor to force Special Sessions at the time and date he proposes, a quorum be present, and to forbid the granting of excused absences when a quorum is not present at a Special Session called by the Governor.

To start in reverse order, The Governor and the Courts are forbidden from determining or judging the rules of either Chamber:

(d)  Each house shall determine the rules of its
proceedings, judge the elections, returns and qualifications
of its members and choose its officers.

Simply put, the rules of the Chamber are only decided upon by the Chamber. IOW, the last part of the suit, to stop the Speaker from granting excused absences is without any legal merit. The Constitution could not be clearer.

On the middle point, forcing a quorum is only a rule of the House and it says the Speaker *may* compel attendance. How would he compel attendance? In many states he might call out the Sergeant at Arms or the State Police, but Illinois isn’t clear on this issue. The rules of the House are the only place such authority is granted and no enforcement mechanism is supplied. The Constitution is silent on this matter and as such, the rule subject to the above clause I excerpted.

The silence by the State Constitution is not by accident. Article I Section 5 of the U.S. Constitution:

Section 5. Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.

The Texas Constitution Article 3 Section 10:

Two-thirds of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and compel the attendance of absent members, in such manner and under such penalties as each House may provide.

For those that remember the fleeing Texas Lege Members, the power was clear that the Speaker of the House in Texas could have the Members arrested and compelled to attend. Illinois offers no such Constitutional power and the power is only contained within the House rules–something that a Constitutional decision cannot be based upon, and only the House can interpret and enforce. It’s questionable that the Illinois Speaker could do what the Texas Speaker did. Hence, even if the courts thought the Speaker was wrong in terms of telling people to stay away, there is no power upon which the courts could base a writ of mandamus to the Speaker.

The Governor’s suit cites Rock v. Thompson (1981) which is the notorious Banana Republic case.  The Illinois Supreme Court issued a writ of mandamus to Governor Thompson forcing him to hold a session with a quorum to adopt a rule for electing the President of the Senate.  The situation was quite different in that Thompson attempted to attempt deliberations without a quorum and, in fact, when he attended the second session on January 15th, he waited for a quorum to assemble before the vote could take place. The rule later passed, then allowed for if a quorum was not available, the decision on a Senate President would be put off for 24 hours until a quorum was finally available.
Rich argues that the final issue is not without merit regarding whether the Governor can call a Special Session at a specific time and day. I think the language is important here:

(b)  The Governor may convene the General Assembly or the
Senate alone in special session by a proclamation stating the
purpose of the session; and only business encompassed by such
purpose, together with any impeachments or confirmation of
appointments shall be transacted. Special sessions of the
General Assembly may also be convened by joint proclamation
of the presiding officers of both houses, issued as provided

One quick point about a comment by Eric Zorn on the issue:

Those who wrote the laws and framed the state constitution simply presumed that such uncheckable powers would be used in a mature, responsible, thoughtful manner, so there was no need to load up the statute books with limitations, qualifiers or even exhortations to use the power only for the good reasons it was given.

Ummm…no. This is Illinois and in 1970, the time of the 6th Constitutional Convention, I think everyone was pretty sure the Governor and General Assembly would do just about anything they could to get an upperhand.

It is true that this part of the lawsuit is not without merit, but it’s hardly a slam dunk for the Governor given the language above. The House rules are irrelevant because the courts have no authority to rule upon those. The law is relevant to some degree and the Governor’s brief cites

3. Nothing in this Act affects the power of the Governor under Article IV, Section 5 of the Constitution of Illinois (1970) to call a special session.The Governor, when calling a special session, shall file the proclamation calling the session with the Secretary of State. The Secretary of State shall take whatever reasonable steps necessary to notify the members of the General Assembly of the date and time of the special session.

The language is ambiguous at best.  Note that neither the law nor the Constitution explicitly state the Governor has the power to determine the date and time. There may be an implication in the end of the directly above about the Secretary of State notifying members of the date and time, but even that is not as clear as one might think.  In theory, House or Senate rules could dictate a specific start time for different times of sessions.  I tend to think the general idea is that the General Assembly will act and certainly, in most circumstances, should act as the Governor specifies.

The Parliamentarian further noted when Hoffman objected:

To the contrary, the Constitution in Article
IV, Section 6(d), gives the Const… gives the House and the
Senate individually, each chamber of the General Assembly,
the authority to determine their own rules of proceedings,
included in the ability to determine its own rules of
proceedings is determined when and where to meet.  As for
the statutory provision, the Special Session Act covers two
scenarios.  One is when the House and the Senate together
issue a joint Proclamation calling for a Special Session.
In that instance, the Special Session Act does require that
the date and time be put in the joint Proclamation issued by
the Speaker and the President of the Senate.  Notably, in
the provision of the Special Session Act related to the
Governor, there is no such requirement.  There may be a
contemplation that the Governor may choose to put a date and
time in, but there is no mandate.  And in any event, that
statutory mandate would yield to the constitutional
prerogative of the House to determine its own rules.
Therefore, it’s the ruling of the Chair that the convening
of this Third Special Session at this time is constitutional
and proper.”

The provision of the House determining it’s own rules is a very powerful portion of the State and National Constitutions and one the Courts tend to avoid.  Other states explicitly state whether the Governor can name the time and date of the session, Illinois chose not to and that is relevant to the Court’s rulings.If one assumes that Blagojevich is correct concerning the date and time, the question then becomes can the courts issue a writ of mandamus to compel a Special Session at a specific date and time determined by the Governor.  Rich comes up with a point that is very important:

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.

And this would be consistent with the Constitution that states both that the rules of the General Assembly are subject only to the interpretation by each chamber and that such violations should be dealt with by the chamber.  In this case it would be not justiceable because the only possible consequences are those which the Court cannot enforce.

Where will the courts fall? My guess is that the two issues related to a quorum and granting excuses absences will be thrown out.  If the courts view the issues as separable then the Governor, at best, could get the Speaker and President to gavel in a special session at the time the Governor insists.  At best.  IOW, the best case scenario leaves teh Governor with no power to call a productive Special Sesison. This isn’t as bad as it may seem, the General Assembly can meet and refuse to pass anything anyway.  My guess is the courts will look at the two parties and say the courts cannot solve a political problem.  The other alternative, and the worst for the Governor, is that he can call a Special Session, but the General Assembly cannot be forced to act at a specific time and so the Governor is weakened.

All-in-all, the Governor has virtually guaranteed the Executive lose the power in the ambiguity of the authority as it stands now.  Heckuva Job!