Rock v. Thompson

MR. JUSTICE SIMON, concurring in the decision:

It could be argued, based on People ex rel. Bruce v. Dunne (1913), 258 Ill. 441 , that Illinois courts lack authority to mandamus the Governor. In view of that decision, I am not as sure as my colleagues, Mr. Chief Justice Goldenhersh and Mr. Justices Ward and Clark, that the Governor can be routinely mandamused. But, that question need not be decided in this case, because, after initially raising the issue, the Governor abandoned that defense. The Governor’s withdrawal from that position allows this court to dispose of this case without the need to adjudicate the applicability or propriety of mandamus on the Governor when the Governor says he is not subject to mandamus. I, therefore, do not feel it necessary to express any further thoughts on that subject. If the legality of mandamusing the Governor over his objection is to be reconsidered, I feel it should be in a case where the relevant law on this delicate subject is fully argued, rather than where the Governor, as here, does not seek to avoid mandamus on that ground.

The Governor, much to his credit, agreed that the difficult legal issues this case raises should be decided by this court. Both sides urgently asked us to judge the case, and agreed that we should decide it on the merits. We need not hesitate, therefore, over the propriety of judicial interference with other branches of government. An action for mandamus, like the ultimate dispute over title to the office of Senate President, is a justiciable matter; we have subject matter jurisdiction.

Irrespective of whether the Governor may be mandamused against his will, where the Governor voluntarily submits to our jurisdiction, this court can decide a controversy which involves issuing a mandamus directed to him. (People ex rel. Billings v. Bissell (1857), 19 Ill. 229 .) In the oral argument in this case, the Governor did not take the position he could not be mandamused. On the contrary, the Governor wisely concluded that the unresolved continuation of the controversy over the Senate presidency would be chaotic and stated that he was willing to have this court tell him if there is some constitutional duty he had left undone. Moreover, when the Senate Democrats tried self-help by electing Senator Rock president under highly irregular circumstances, the Governor and Senator Shapiro filed motions in this case seeking a protective order. Their argument was that Senator Rock could not be permitted to take into his own hands “the previously unquestioned power of the Judicial Branch to settle constitutional disputes.” By the time we issued our order on February 9, 1981, it was clear that the Senate was unable to resolve its impasse without help, and the judiciary was the only body it could turn to for help. Had we not acted, the work of the Senate would have gone undone or been open to challenge, and Senators, once having resorted to physical conflict in trying to resolve the controversy, might have continued to do so. Having been presented with this controversy, it was better for us to decide than to avoid decision.

The petitioners say that 30 votes were needed to elect a President, and Senator Shapiro didn’t get them. The respondents say that a majority of the votes cast were sufficient to elect a President, and he got that. Both are wrong. This court cannot say how many votes were needed; that was for the Senate to decide. Until the Senate — after our order — made a valid determination on that question, there was no way to say whether any particular number of votes was enough. No valid election could be held until the Senate set the ground rules for it. Senator Shapiro’s election was therefore invalid.

My colleagues agree with the petitioners that 30 votes, a majority of the Senators elected, are necessary to elect a President of the Senate. They offer three reasons.

In 18 provisions, the Constitution demands votes of two-thirds, three-fifths, or a majority of the Senators elected. Yet on the point at issue it is silent. My colleagues infer from the abundance of minimum-vote requirements that the election of a President must also require a minimum of 30 votes. I draw the opposite conclusion. The framers of the Constitution obviously knew how to require 30 votes when they wanted to. If they had meant to make a rule requiring a minimum number of votes to elect the Senate President, they would have said so, just as they did in 18 other places. The absence of such a requirement indicates to me that none was intended.

My colleagues next seek support for their argument by pointing to one particular act for which the Constitution says 30 votes are needed: confirming the Governor’s appointments to office. Their reasoning is that the election of a Senate President is at least as important as the confirmation of other officers, and therefore must require at least as many votes. This contention rests, however, on the assumption that the Senate cannot remove its President once it elects him. I believe it can. There must be some way to remove a President whose conduct is objectionable. But as only executive and judicial officers are subject to impeachment (Ill. Const. 1970, art. IV, sec. 14), the power to remove a legislative officer can only be in the chamber that chose him. The statute (Ill. Rev. Stat. 1979, ch. 63, par. 23.2) providing that the President holds office until his successor is elected and qualified merely guards against inconvenient gaps in the office; it does not bar affirmative removal. Nor does a statute providing that certain other officers may be removed for cause (Ill. Rev. Stat. 1979, ch. 63, par. 23.1) immunize the Senate President. Moreover, any attempt to limit the Senate’s power over its officers by law rather than by its own rules of proceedings might well be unconstitutional. My view is that the President of the Senate serves at the pleasure of the Senate. Even if the President is removable only for cause, the office remains to a substantial degree within the control of the Senate. Thirty votes are needed to confirm gubernatorial appointments because the confirmation, once done, passes out of the Senate’s control. An internal, reviewable matter like the election of the President could rationally be left to a lesser vote. The two kinds of action are different, and comparison of them is therefore inconclusive.

My colleagues’ third point is that Governor Thompson himself has said on many occasions in past years that 30 votes are necessary, and that that view seems to have been widely held. But the Constitution’s striking silence is not an ambiguity to be construed by giving weight to the practice of Senates and Governors since 1970. I believe the Constitution is silent intentionally. The vote requirement was to be left to the Senate itself, under its authority to “determine the rules of its proceedings *** and choose its officers” (Ill. Const. 1970, art. IV, sec. 6(d)). Expressions by the present Governor as well as past ones and individual Senators are neither the equivalent of the constitutional requirement of a Senate rule nor substitutes for the Constitution’s silence.

I do not, therefore, accept my colleagues’ conclusion that the Constitution requires 30 votes.

Just as the Constitution does not require 30 votes, neither does it establish a majority of those voting as enough. There is no constitutional provision that the act of a majority of those voting is the act of the Senate unless otherwise provided. All attempts to read into the Constitution some definite rule about how many votes are needed to elect a President are equally inconsistent with the Senate’s right to determine its own rules. The Senate has regularly, by rule, required varying numbers of Senators (ranging from 2 to 40), or varying fractions of those voting, to accomplish various types of action. It is no less free to decide how it wants to go about electing its President.

The issue, then, reduces to: Is there a rule that applies until the Senate makes an express rule? The obvious source would be custom, either of the Illinois Senate or of parliamentary bodies in general. Does custom establish common law rules binding until changed by the Senate? I see many obstacles to using customary rules even if such rules clearly existed.

First, this case amply demonstrates that there may not always be any clear custom. If a lazy, confused, or deadlocked Senate could operate indefinitely under hazy but binding rules of custom and usage, the courts would be regularly called on to divine those rules. We should not be eager for that role. Nor does the Constitution leave such decisions to parliamentary texts such as Robert’s Rules of Order. It leaves those decisions, rather, to the Senate itself.

Second, resort to custom and usage is inconsistent with the doctrine emanating from article IV, section 5(a), of the Constitution that the General Assembly is a new body every two years (Ill. Const. 1970, art. IV, sec. 5(a)). Referring to custom to apply past procedures to a new Senate imposes upon the electorate viewpoints they may have voted to replace. Custom based only on previous practice or beliefs as opposed to rules expressly adopted is especially unsuitable for use in a new Senate.

Third, custom is inconsistent with the directive that the Senate “shall determine” its rules (emphasis added) (Ill. Const. 1970, art. IV, sec. 6(d)). Compare the Federal Constitution, providing that each house “may determine the Rules of its Proceedings” (emphasis added) (U.S. Const., art. I, sec. 5).

I conclude that custom does not by virtue of either the Illinois Constitution or the common law supply a body of rules for the Senate, even temporarily. It is, no doubt, a useful thing to have around, especially as any set of express rules is likely to overlook something. The Senate is free to be guided by custom in reaching its decisions on what its rules should be, and to provide, by rule, that situations not covered by other Senate rules are to be governed by Mason’s, Robert’s, the traditions of the Senate, or any other authority the Senate may desire. The Senate is also free, so long as everyone acquiesces, to proceed informally according to customary parliamentary practice or such of the above-mentioned authorities as may be convenient or as it pleases. But there are no binding rules about how many votes are needed to elect a President except as the Senate itself, directly or indirectly, makes them.

The Governor has no authority to determine the number of votes needed to elect a Senate President. His constitutional mandate to convene the Senate does not convey the power to control or direct it. When on past occasions, as the Senate was organizing itself, the Governor announced the number of votes required, his announcement was nothing more than a suggestion or proposal. It was up to the Senate to accept, reject or modify his proposal. When the Governor’s suggestion met no objection, it was in effect adopted by the Senate’s unanimous, though silent, acquiescence. Similarly, if without any rule being stated an election were held and the winner of a plurality were declared elected and sworn in without objection, the Senate would thereby acquiesce in a rule that that vote was large enough. Each time a Senate President was elected from the adoption of the 1970 Constitution until this year, the Senate tacitly adopted the Governor’s proposed rule.

The year 1981, however, was different. Senators Netsch and Rock objected to the Governor’s announcement that a majority of those voting would suffice. At that point the number required became a matter the Senate itself had to decide before the election could proceed; for there were no rules until the Senate made them.

No rule on the subject was ever properly adopted by the present Senate. The closest approach was the Governor’s announcement that Senator Netsch’s objection would be treated as an appeal from the chair’s ruling that a majority of those voting was sufficient. The vote taken after that announcement on the appeal from the Governor’s ruling was ineffective, however, for two reasons.

First, an appeal from the ruling of the chair is not an acceptable equivalent of a positive vote on what the rule should be. The Senators were deciding the wrong issue. They should properly have been voting on what the rule should be, or on what they would like it to be. But the Governor treated his ruling as a declaration of what the existing rule was; and the vote on the appeal was probably seen as a judgment on that declaration. That vote did not adopt a rule.

Moreover, a vote to overturn the ruling of the chair is in the nature of a criticism of the occupant of the chair, here the Governor. The Governor had considered the problem and had consulted with parliamentary experts; for a Senator to vote against him on such an apparently technical matter might be regarded as an insult. It is psychologically difficult and sometimes politically dangerous to do that to the head of one’s State and party. If the vote had been taken in the proper form, on a regular motion to require a certain number of votes to elect the President, if everyone had understood that the Governor was only making a suggestion on a matter entirely within the Senate’s choice, the Senators would have felt freer to vote their consciences.

A further problem with a vote in the form of an appeal is that had the vote been tied, that would have affirmed the chair’s ruling, in effect giving the Governor a tie-breaking vote, which he should not have. The Governor is not a Senator; passing a rule should take an affirmative majority among Senators.

The second reason the vote on the appeal was ineffective is that, when it was taken, there was no quorum. My colleagues have demonstrated the factual and legal basis for this conclusion. The presence or absence of a quorum during the roll call vote for election of the Senate President is irrelevant to my conclusion regarding the infirmity of the vote on the appeal. However, their reasoning shows that no quorum was present during the vote on the appeal from the ruling of the chair, and I adopt it for that purpose. As my colleagues have adequately explained, when only 29 Senators answered to that roll call, any presumption that a previously existing quorum continued evaporated.

There is no reason to suppose any Democrats were on the floor during that roll call but not voting, and every reason to believe none were. When the Senate reconvened after its recess for caucuses, Senator Netsch announced that she saw no Democrats except herself and Senator Rock, and that neither of them would be around for long. The intent of the Democratic Senators to break the quorum is obvious. Niether Senator Netsch’s demand for a quorum roll call nor the Governor’s tactic of stopping the roll call every time she left the floor and resuming when she returned makes any sense if Senator Rock and 29 Republicans were in the chamber at the time. It is even clearer that 30 Senators were not actually present because the petitioners deny they were and the respondents have never asserted that in fact 30 Senators were there.

In summary, a rule was required; none was adopted. The vote for President was therefore useless. It should not have been conducted until the Senate settled the rules that would govern it. Until then, no election could have a determinate outcome. For these reasons, Senator Shapiro was never President of the Senate.

At the time of our order, neither was Senator Rock. His election was conducted outside a regularly convened session of the Senate, at a gathering called together before the official scheduled time for the Senate to convene, and without notice to the Republican members. It appears that Senators were forcibly prevented from participating. In any event, they were effectively deprived of their rights as members. The Rock election on February 3, 1981, 6 days prior to our order, was a nullity.

Because the Senate did not yet have a President, we mandamused the Governor to convene it to elect one after deciding for itself, upon an appropriate motion, how many votes would be required. In other words, we told everybody to start over and do it right. I believe that was the proper result.