Judicial Rulings

Illinois Supreme Court

Justices never agreed on how many votes elect a Senate president

THE SUPREME Court's written opinions in Rock v. Thompson were given June 26, more than four months after the court's February 9 order which led Gov. James R. Thompson to reconvene the Senate and conduct a new election for presiding officer. Sen. Philip J. Rock (D., Oak Park) was elected in place of Sen. David C. Shapiro (R., Amboy) whose election by 29 votes on January 15 was voided by the court (see Illinois Issues, March, p. 36, and April, p. 29).

Chief Justice Joseph H. Goldenhersh was joined in the leading opinion by Justices Daniel P. Ward and William G. Clark; an opinion concurring in part was written by Justice Seymour Simon. These four judges, all Democrats, supported Rock's case. Dissenting opinions were filed by the three Republican justices, Robert C. Underwood, Howard C. Ryan, and Thomas J. Moran.

The opinions totaled 39 pages but a majority of the justices never agreed on the basic issue: How many votes are required to elect a Senate president? The governor had ruled a majority of those voting would suffice, rather than the constitutional majority (30) that he had called for in previous years. The ruling caught the Democratic senators off guard because they were not prepared to muster their full strength (30) on January 15, and the Republicans elected Shapiro with 29 votes.

The Constitution does not say how many votes are needed, but Goldenhersh, Ward and Clark took the position that 30 votes were needed. "It is inconceivable that the framers of the Constitution intended to permit the election of a constitutional officer [president] by a minority of the Senate while, at the same time, requiring a majority of the members elected to concur in the Governor's appointment of nonconstitutional officers," Goldenhersh wrote.

But three justices do not make a majority of the seven-member court, and it was Justice Simon's view that the vote needed should be decided by Senate rule that laid the basis for the majority decision. "This court cannot say how many votes were needed; that was for the Senate to decide," he wrote. " . . .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 and its proceedings *** and choose its officers'."

Ryan, also dissenting, cited Robert's Rules of Order and Mason's Manual of Parliamentary Procedure and argued that the Senate "was not operating in a vacuum. There were established principles of procedure which applied to the Senate proceedings which authorized the election of its officers by a vote of a majority of those present and voting."

The judges divided into the same two camps on the other two issues involved. Goldenhersh, Ward and Clark held that a writ of mandamus could order a new Senate election, and Simon concurred although he pointed out that the governor had said he would submit to the court's decision. The dissenters disagreed, contending since no constitutional violation had occurred, no writ should issue. Goldenhersh, Ward and Clark said that the transcript failed to indicate the presence of a quorum, and Simon agreed. Here Ryan asserted that the majority's holding "does violence to established parliamentary rules relating to methods of determining the presence of a quorum in legislative bodies."

The opinions were replete with references to parliamentary authorities, but none to Illinois legislative rules. The General Assembly has turned out four fat volumes of statutes to govern the state but only thin handbooks to govern its own procedure. By directing attention to the absence of a rule on election of a Senate president, Justice Simon did an important service. It will be something for Illinois parlimentarians to consider, particularly in 1983 when a House with 118 members convenes, with the possibility of a 59-59 party split and an exhausting speakership battle.         William L. Day

34 | September 1981 | Illinois Issues