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Illinois Attorney General's Petition to Have Governor Removed:

I haven't gotten a copy of the petition; if you can point me to one, please e-mail me at volokh at law.ucla.edu. In the meantime, here's the provision of the Illinois Constitution that seems to be in play:

SECTION 6. GUBERNATORIAL SUCCESSION

(a) In the event of a vacancy, the order of succession to the office of Governor or to the position of Acting Governor shall be the Lieutenant Governor, the elected Attorney General, the elected Secretary of State, and then as provided by law.

(b) 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.

(c) Whenever the Governor determines that he may be seriously impeded in the exercise of his powers, he shall so notify the Secretary of State and the officer next in line of succession. The latter shall thereafter become Acting Governor with the duties and powers of Governor. When the Governor is prepared to resume office, he shall do so by notifying the Secretary of State and the Acting Governor.

(d) The General Assembly by law shall specify by whom and by what procedures the ability of the Governor to serve or to resume office may be questioned and determined. The Supreme Court shall have original and exclusive jurisdiction to review such a law and any such determination and, in the absence of such a law, shall make the determination under such rules as it may adopt.

The last sentence seems most relevant; I know of no Illinois statute on the subject, so Supreme Court Rule 382 appears to be relevant. But neither the Constitution nor the Rule clarify what constitutes a "disability," and whether the Governor's being prosecuted (but being out on bail) qualifies.

The Capitol Fax Blog has more, but not much more. The National Center for State Courts has a Backgrounder on Gubernatorial Removal and the State High Courts, but that's a national perspective, with little details about this particular item. The Backgrounder also points to In re O'Bannon (2003), in which the Indiana Supreme Court declared Gov. O'Bannon disabled, but that involved a clear disability — a coma following a stroke.

A Law Dawg:
As much as I detest the good Governor, I hope the Illinois Supreme Court denies the relief. While there's no doubt Bleggo deserves to go and is a slam-dunk for impeachment, it seems awfully sketchy to be able to essentially sidestep the entire impeachment process if you have a bare majority of sympathizers on the State Supreme Court.

I wouldn't shed a tear to see Bleggo go; I would be worried about the rule set by such a precedent.
12.12.2008 2:39pm
Mr. Bingley (www):
Regardless of his level of scumbaggery, I'm not sure that trying to use the courts to invalidate an election is a path that should be trod down.
12.12.2008 3:01pm
Anderson (mail):
Agreed w/ Law Dawg &Bingley. It may be constitutional, but politically it's a terrible idea.

If the IL legislature can't impeach this guy before Xmas, they are even more corrupt than he is.
12.12.2008 3:03pm
Curt Fischer:
But doesn't the AG get appointed by the governor? Isn't that a check on potential abuse of this system?
12.12.2008 3:07pm
HaNK:
He's only been charged. I wouldn't think that a judge would punish based soley on unproven facts. They can't give too much effect to the "loss of confidence" argument if the facts are only allegations.

If the legislature impeaches and tries him, do they have to tie it to a criminal offense? Or is it just a factfinding procedure? If they can prove that he actually said the things on the wiretaps, then that seems like enough to convict him of something nebulous like loss of confidence. But if they have to go beyond that and determine whether those facts amount to a conspiracy involving the interstate mails, etc., then it might take longer.
12.12.2008 3:08pm
Curt Fischer:
Reminder to self: check wikipedia before posting. It seems the Illinois AG is elected, not appointed by the governor.
12.12.2008 3:09pm
FlimFlamSam:
I agree with what appears to be the consensus. Frankly, I don't think "in political hot water" constitutes the sort of "other disability" referenced in the Illinois Constitution. The Constitution seems clear that to remove governors accused of bad acts, removal is accomplished through conviction on impeachment. Further, the removal of a governor based on mere accusation rather than conviction (either through impeachment or criminal prosecution) raises some serious due process problems.
12.12.2008 3:16pm
Roger Schlafly (www):
Doesn't anyone believe that a man is innocent until proven guilty? Blagojevich's enemies have been investigating him for years, and yet no one has actually caught him taking a bribe. All they have are some tapes of some blustering comments.
12.12.2008 3:26pm
glangston (mail):
Blago should take a page from Gore...."no controlling legal authority"
12.12.2008 3:28pm
arthur (mail):
If being under criminal investigation counts as a disability, I see great opportunities for ADA litigation.
12.12.2008 3:29pm
STH:
The documents filed by Madigan are available from the Chicago Tribune here.
12.12.2008 3:33pm
ChrisIowa (mail):

but that involved a clear disability — a coma following a stroke.

In Illinois that could be arranged.
12.12.2008 3:38pm
Tammy Cravit (mail):
The documents filed by Madigan are also available on the Illinois Attorney General's Web site:

Brief, Motion for TRO, Supporting Record TRO.
12.12.2008 3:38pm
A.S.:
If the IL legislature can't impeach this guy before Xmas, they are even more corrupt than he is.

Should he be impeached based merely on the indictment?

Shouldn't he get some kind of due process? The opportunity to contest the impeachment charges? Shouldn't the legislature have to have some evidence other than an indictment? I'd be surprised if due process could be afforded by Christmas.
12.12.2008 3:44pm
Ubu Walker (mail):
Another example of why we should adopt "votes of no confidence" at the state and national level here in the USA. Impeachment is too difficult.
12.12.2008 3:45pm
calmom:
And like the POTUS, impeachment alone may not remove him from office. That would require a trial in the state senate, with some sort of evidentiary procedure and due process. That's what the Illinois Democrats are trying to avoid. They want this guy out. So that any future bomblets dropping about the involvement of other pols are relegated to the back pages of the newspapers. As long as Blago's the governor, the further revelations are front page news. Of course, if Blago implicates other high officials they are headline news anyway.
12.12.2008 3:50pm
ChrisIowa (mail):
What is to prevent the Governor of Illinois from appointing a Senator on the eve of the impeachment vote? A "no confidence vote" would be no different.
12.12.2008 3:55pm
Roger Schlafly (www):
Should he be impeached based merely on the indictment?
Gov. Blagojevich has not even been indicted yet. He has only been arrested, and released on $4.5k bail.
12.12.2008 4:02pm
Michael B (mail):
Due process knocks this out of the water, surely, virtually as a matter of course.

One may as well seek to reform the entirety of Chicago and Illinois politics via fiat from the AG's office. In fact, by going after Blago in this manner one could argue it's little more than distractive of the far larger scope of political corruption within Illinois and Chicago styled politics; in that sense singling out Blago, while necessary within a due process regimen, is otherwise distractive.

As to what this represents in general, relative to Rahm Emanuel to cite a prominent example, the rule of the day seems to be: incuriouser and incuriouser.
12.12.2008 4:12pm
Jim Rhoads (mail):
Food for thought:

How would you like to be the lucky individual appointed by Bloggo for US Senator?

Would you wish that appointment on your worst enemy?
12.12.2008 4:16pm
pete (mail) (www):
I agree that it is a bad idea to let the courts do this since he is not mentally unable to do his job. The legislature should impeach him.

I think the only way for the appointmenr to not be controversial now is to pick some really old person who will not hold the seat for long and who everyone in Illinois respects and is not considered corrupt or particularly partisan. Maybe a retired general or major CEO or judge who lives there who has never run for office before. I am not saying that there is such a person living in Illinois, but that is one way to do it.
12.12.2008 5:30pm
NickM (mail) (www):
Ernie Banks for Senate?

Nick
12.12.2008 9:39pm
David W. Hess (mail):
Just impeach governor Blagojevich for a ToS violation.
12.13.2008 10:09am
pete (mail) (www):
Nick, according to wikipedia, Banks now lives in California. The constitution says you have to be a resident of the state to be eleceted, but I do not know if that is a requirement for appointments to the senate.
12.13.2008 12:45pm
Bruce_M (mail) (www):
If the state can remove your driver's license just on an allegation of DWI (the state proves probable cause by a preponderance of the evidence, which it can always do, incidentally), then I don't see why this case would require anything additional, with respect to due process. This is a civil proceeding against Blagojevich, not a criminal proceeding. The fact that he has not been convicted is irrelevant. The goal is not to deprive him of his freedom or liberty, but rather to remove him from public office.

I don't like the idea of removing a governor because he supposedly is doing a bad job. For example, Gray Davis of California. Recall election, judicial removal petition, same principle. "Bad job" is subjective and inherently political (and thus partisan). Probable cause of having committed serious crimes is not. He should be removed immediately. There's ample evidence.
12.13.2008 1:49pm

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