Vincent G. Rinn Law Library

Responses to Illinois Governor's Situation - Some of the Legal Provisions Involved

After the recent surprise arrest of Illinois governor Blagojevich based on a criminal  
complaint by US Attorney Patrick Fitzgerald, state officials and lawmakers are
considering several responses to deal with this situation.

One of the options that has actually been considered even before the current events, is instituting impeachment proceeding against the governor. In June 2008 House Speaker Madigan's office had compiled "Talking Points on Beginning Impeachment Proceedings Against Governor Blagojevich"

The Illinois Constitution , Article 4 Section 14 deals with impeachment :

"The House of Representatives has the sole power to conduct legislative investigations to determine the existence of cause for impeachment and, by the vote of a majority of the members elected, to impeach Executive and Judicial officers. Impeachments shall be tried by the Senate. When sitting for that purpose, Senators shall be upon oath, or affirmation, to do justice according to law. If the Governor is tried, the Chief Justice of the Supreme Court shall preside...."

However, the impeachment process would take a long time and cost tens of thousands of dollars. Other possible legal options for removing the governor are being explored. Illinois Attorney General, Lisa Madigan, is looking at using both a Illinois Supreme Court rule and a section of the Illinois constitution  that deals with Gubernatorial Succession, as potential ways to attempt to have the governor removed :

Illinois Supreme Court Rules, Article III, Civil Appeals Rules, Rule 382 :

The relevant  part is, "(a) Institution of proceedings. Proceedings in the Supreme Court when the court has original and exclusive jurisdiction under article IV, section 3, and article V, section 6(d), of the Constitution, which relate to redistricting of the General Assembly and to the ability of the Governor to serve or resume office, shall be instituted by filing a motion for leave to file a complaint, which motion shall be accompanied by the complaint and a brief in support of the motion. The complaint may be supported by affidavits or other pertinent documents.

The relevant section of the Illinois constitution re. Gubernatorial Succession, Section 6 :

(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.

There is also a section of the Illinois Compiled Statutes that may be relevant to these removal efforts: EXECUTIVE OFFICERS (15 ILCS 5/) Governor Succession Act.

"Sec. 1. (a) 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,..."

In addition to following up on legal options provided by these provisions, law makers are also looking at the possibility of  changing the law that gives the governor the power to appoint someone  o the  vacant federal Senate seat. Removal attempts may not prevent him from making the appointment.

The 17TH Amendment to the US Constitution dealing with Senator election and number, states
"... That the legislature of any State may empower the executive thereof to make temporary  appointments until the people fill the vacancies by election as the legislature may direct. ..."

The Illinois statute that gives the Illinois governor this power , ELECTIONS (10 ILCS 5/25 8), states:

'When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election."

However, even if the legislature changes this state law, the governor still has 60 days to decide how to respond to it. Within that time he could still make the appointment under existing law.

Some commentators have speculated that if that happens perhaps the federal Senate could still refuse to recognize the governor's appointee. There does appear to be some language in the federal constitution, Article I, The Legislative Branch, Section 5, Clause 1 has some language that might support such action :

"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."

But this may be a slender reed to support the rejection of a legally appointed official.

Despite all the efforts to deal expeditiously with this crisis of confidence in our state executive, it  looks like it will probably be "messy" and protracted. Because like former President Nixon, Governor Blagojevich will probably not resign until removal by impeachment is imminent.

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Addendum:

See article in which DePaul law professor Len Cavise is quoted re. what it will take to make criminal charges stick against Governor Blagojevich: "Talk is cheap, but it still can be a crime", By Joseph Ryan and Rob Olmstead | Daily Herald Staff.

Holiday Closing of DePaul Libraries

The DePaul Rinn Law Library & the DePaul University libraries will be closed from Dec. 23, 2008 through  January 01,2009. This is part of a university-wide closing policy. During this time facility repair & maintenance are  carried out. Mail is accepted & held for distribution, for when we reopen on January 2, 2009.

During this period, depository patrons can go to these nearby  federal depository libraries

Chicago Public Library Harold Washington Library Center, Chicago Illinois 400 South State Street,  Chicago, 312-747-4500

Illinois Institute of Technology - Chicago-Kent College, Downtown Campus Library Chicago Illinois 565 West Adams Street, Chicago, 312- 906-5600

Links to  selected government information web sites are provided as part of our "Internet Reference Project" under the heading "Federal Resources". These can be accessed from any computer connected to the internet.

Professor Landsman Presents Paper & Testifies re. Right To Counsel in Civil Cases

Dean Glen Weissenberger has informed the law school community about recent significant  contributions by DePaul law professor Stephan Landsman :

"Please join with me in congratulating Stephan Landsman. Stephan just concluded the organizing and presentation of an ABA Litigation Section Symposium on Access to Justice. The Symposium was held in Atlanta on December 4-5. It featured scholarly papers by 16 authors... The papers will be published in the  Fordham Urban Law Journal and distributed by the ABA as well. Stephan wrote a paper for the  symposium, entitled “Nothing for Something: Denying Access to Those Compelled to Participate in ADR Proceedings.”

On Wednesday of this week Stephan will be testifying about access to justice before a Supreme Court of Texas access task force in Austin. [ Agenda ]

In addition, he has been appointed to the ABA-wide task force to advise the Obama administration on healthcare reform."

Congratulations Stephan!

Empirical Study of Supreme Court Clerk's Influence, in Current DePaul Law Review

Two political scientist have co-authored what they consider the first truly empirical study of the potential influence that the law clerks of the Supreme Court Justices may have on how cases are selected and decided by the Court. Todd C. Peppers, Associate Professor of Political Science, Roanoke College, Christopher Zorn, Professor of Political Science, Pennsylvania State University, describe their research in an article in the current DePaul Law Review , entitled  "LAW CLERK INFLUENCE ON SUPREME COURT DECISION MAKING:  AN EMPIRICAL ASSESSMENT". 

"To date, however, the question of law clerk influence has not been  examined empirically. While social scientists have carefully tested myriad  models of Supreme Court decision making,they have yet to consider the  influence of law clerks’ policy preferences on Court decisions...."

"Here, we undertake the first effort at assessing the existence and extent of law clerk influence in the U.S. Supreme Court. Drawing upon original survey data on the political  ideology of 532 former law clerks, we evaluate the extent to which both the Justice’s personal policy  references and those of his or her law clerks exert an independent influence on the Justice’s votes.  While our results are preliminary, they nonetheless support the contention that—over and above “selection  effects” due to Justices choosing like-minded clerks—clerks’ ideological predilections exert an  additional, and not insubstantial, influence on the Justices’ decisions on the merits. ..."

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Previous Study of the selection of clerks as an indicator of ideological polarizations among the Justices:

"Selection of Law Clerks and Polarization in the US Supreme Court"
Corey Ditslear and Lawrence Baum, Ohio State University, The Journal of Politics,  2001

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New York Times story on the Peppers & Zorn study:
Influence on the Supreme Court Bench Could Be an Inside Job
By ADAM LIPTAK,   December 8, 2008

New Legal Magazine : "Women Legal"

Women legal is a new legal magazine with a focus on women in the legal field published by Ark Group Ltd., (London, UK ; Peoria, IL)

"Researched and developed over the past 12 months by the editorial teams behind Managing Partner, Legal Marketing, and KM Legal Magazines, WOMENLEGAL is written exclusively by experts in this field, and is the only magazine available that will provide unbiased insight into developing, retaining and advancing women in today’s legal industry.

Under the guidance of a distinguished editorial board each issue will feature case studies, insight, commentaries, and expert contributions to highlight how forward thinking firms and individuals have accomplished their objectives, overcome obstacles and barriers they faced, and achieved high levels of success and recognition."
Magazine includes coverage from the United States, United Kingdom, Australia.

Subscription Options:
- Standard Full Subscription $245 (excluding shipping, normally $345)
- Hard Copy only Subscription $145 (excluding shipping, normally $195)
- Online Only Subscription $145 (normally $195)

To subscribe contact Michelle Elam on 309 681 0960 or by email: melam@ark-group.com

11th Annual Dr. Martin Luther King Jr. Day

Wilson Myers's War For Legal Reform In Iraq

While The material for this  posting is a bit less timely for a blog, its relevance to similar work undertaken by DePaul Law School's International Human Rights Law Institute (IHRLI) in Iraq, makes it worth providing it for our readers. Earlier this year the publication American Lawyer, sent their reporter Ben Hallman to cover activities by the US government directed at restoring the "rule of law" in post-war Iraq. His story was the  September 2008 cover story. In past years the IHRLI has undertaken several projects with similar aims in Iraq.
( See :International Human Rights Law Institute Projects in Iraq, “Toward a Rule Of Law Society In Iraq: Introducing Clinical Legal Education into Iraqi Law Schools” )

Mr. Hallman tells his story using the experiences of Wilson Myers,a retired Army colonel who was hired by the State Department as  a civilian contract attorney. His first tour of duty was in 2004. He is an exception where most contract attorneys are there for one year. Hallman describes the three tiers of  the US legal presence in Iraq: the JAG corps, the Dept. of State & Dept. of Justice lawyers and the Provincial Reconstruction Teams (PRTs) that Myers is in charge of.

The author describes the first two tiers as the "law and order military lawyers" and the PRTs as "the legal reform people". The two camps have rather different orientations about their  missions in Iraq. The author and Myers believe that the approach of the PRTs can be much more effective in actually creating the basis for a new legal system in Iraq. It will probably look much different from our own system since it will be based on  the Napoleonic civil code in which many of our "due process" rubrics are not recognized.

Even given this major caveat, the author sees the approach and methods of the PRTs as being of greater value to eventually revitalizing the legal culture & community of Iraq. He says, " This attitude is evident in how the Baghdad PRT chooses its priorities. Rather than try to impose wholesale changes on Iraqi legal culture, or spend millions of dollars on far-ranging projects that don't meet the Iraqis' needs, the PRT is going down a different path. They're taking a step-by-step approach that addresses the foundational legal issues that Myers believes are important to a lawful society, and that have been previously ignored by the rule of law officials at the U.S. embassy and the military. "We do little things, but projects that gives us credibility with the stakeholders,"...

Myers and his cohorts have no illusions about how difficult and protracted this work will be. "Myers says that the Iraqi lawyers he meets "have a thirst for knowledge," but that "it is going to take a generation to make up for 35 years of legal neglect in Iraq," he says. "You have to start with law schools and graduate a crop of young lawyers. It is going to take the bar association [offering continuing legal eduction]. It's going to take the government to start enforcing regulations based on the law. There are a lot of moving pieces."

There is much in the approach of Myers and the PRTs that emulates the earlier work and contributions of the IHRLI to re- establishing an Iraqi legal system.

Amazing Free Portal For Worldwide Science Information

The increasing application of scientific knowledge to such areas of law as patents, forensic evidence, intellectual property, health care & biotechnology, energy & environmental issues, places a premium on attorneys who are able to locate and use scientific information from many fields and from many countries.
( See: Hot new niche: Lawyers who speak science - Demand for specialists driven by an explosion in patent applications, By Maryclaire Dale, MSNBC ; Pursuing a Career in Science and Law By Theresa Phillips, About.com )

A powerful international online portal to such information was reviewed by Carol Tenopir in a recent issue of Library Journal. It is called WorldWideScience.org and is the result of the collaboration of  the British Library and the US Dept. of Energy Office of Scientific and Technical Information (OSTI). It includes information from more than 50 countries and 40 international portals. At present all the content is in English.

While a great deal of scientific information has been made freely available by many countries. Users would first need to discover all these sources and then have to search each one to do a comprehensive search. WorldWideScience.org provides an elegant solution to these barriers. Ms. Tenopir describes how the site works :

"The federated search architecture used by WorldWideScience.org allows access with a single query. Upon execution, the system contacts the partner sites all over the world, runs the search on each database in real time, and returns the results to the U.S. server.The system then ranks the returned search results by relevancy and allows the searcher to select which documents to display.

The results screen also includes a link to the Wikipedia entry on the search term to give an overview of the topic, which especially helps laypeople or scientists searching outside their primary area of expertise.  Finally, WorldWideScience.org also presents results divided into clusters, so searches can be refined by topic or date."

As lawyers are increasingly crossing borders both geographicaly and in terms of academic disciplines, this international portal can become a valuable tool for their specialized research needs.

Recent & Forthcoming Faculty Books From Carolina Academic Press

"Art, Cultural Heritage, and the Law" by Patty Gerstenblith is one of the first legal casebooks to address the rapidly emerging fields of art and cultural heritage law, utilizing an interdisciplinary approach. This book addresses artists’ rights ..., the functioning of the art market ..., and cultural heritage .... The new edition, available summer 2008, will retain the basic structure of the first edition while updating case law, policies and events."

"This book  by Rodney Blackman both explores why America has largely escaped the foreign political and religious fanaticism that was expressed in the September 11th, 2001 attack and presents a brief history of some of the most destructive examples of similar fanaticism." 
(Forthcoming 2009 )

  "Although there are a number of books on the market dealing with the various aspects of arson investigation, this is the only book that combines both arson investigation and the law relating to all aspects of arson from investigation through prosecution.

Arson Law and Prosecution by John Decker and Bruce Ottley will be very useful to everyone involved in arson cases, including police and fire investigators, prosecutors, defense attorneys, and judges. It is also ideal for use in arson investigation training courses in colleges, in advanced criminal law courses in law schools that focus in depth on one crime, and in a law school course dealing with the preparation and presentation of a criminal case."
( Forthcoming January 2009 )