Rock v. Thompson

• Decision Date: 26 June 1981
• Docket Number: No. 54408,54408
• Citation: 426 N.E.2d 891,85 Ill.2d 410,55 Ill.Dec. 566
• Parties: , 55 Ill.Dec. 566 Philip J. ROCK et al., Petitioners, v. James R. THOMPSON, Governor, et al., Respondents.
• Court: Illinois Supreme Court

Page 891

426 N.E.2d 891

85 Ill.2d 410, 55 Ill.Dec. 566

Philip J. ROCK et al., Petitioners, v.James R. THOMPSON, Governor, et al., Respondents.

No. 54408.

Supreme Court of Illinois.

June 26, 1981.

Herman G. Bodewes and John R. Keith, Springfield, for petitioners.

Tyrone C. Fahner, Atty. Gen., Springfield (Herbert Lee Caplan, Asst. Atty. Gen., and Samuel W. Witwer and Thomas E. Kluczynski, Sp. Asst. Attys.Gen., Chicago, of counsel), for respondents.

GOLDENHERSH, Chief Justice, with whom WARD and CLARK, Justices, join:

On January 19, 1981, pursuant to Supreme Court Rule 381(73 Ill.2d R. 381), we allowed the motion of Senators Philip J. Rock and James H. Donnewald, hereafter petitioners, for leave to file an original action for mandamus and an injunction.The petition prays for the issuance of a writ of mandamus directed to James R. Thompson, Governor of Illinois, hereafter respondent, "as Governor, to convene the Illinois Senate to elect from its membership a President of the Senate as presiding officer" and for an injunction restraining respondent Senator David C. Shapiro"from assuming or otherwise conducting or attempting to conduct the duties of office of President of the Senate during the pendency of these proceedings."We ordered an expedited briefing schedule, heard oral argument on January 27, and on February 9 ordered that a writ of mandamus should issue, "directed to the respondent, James R. Thompson, Governor of the State of Illinois, commanding that pursuant to article IV, section 6(b), of the Constitutionhe convene the Senate and, following the adoption by the Senate of a rule fixing the number of votes required to elect such officer, proceed with the election of a President."We further noted in our order that "An opinion setting forth the reasons for this order will be filed in due course."See, e. g., Coalition for Political Honesty v. State Board of Elections(1980), 83 Ill.2d 236, 47 Ill.Dec. 363, 415 N.E.2d 368;Dooley v. McGillicudy(1976), 63 Ill.2d 54, 55, 345 N.E.2d 102.

Article IV, section 6, of the Illinois Constitution of 1970 provides in part:

"(a) A majority of the members elected to each house constitutes a quorum.

(b) On the first day of the January session of the General Assembly in odd-numbered years, * * * the Governor shall convene the Senate to elect from its membership a President of the Senate as presiding officer.

(d) Each house shall determine the rules of its proceedings, * * * and choose its officers.* * *"

Transcripts of the proceedings show that respondent convened the Senate of the Eighty-Second General Assembly on January 14, 1981.Following the administration of the oaths of office to newly elected members of the Senate, and several ceremonial matters, the Senate adjourned until 10 a. m. on January 15, 1981.

Transcripts of the Senate proceedings of January 15, 1981, certified by Edward E. Fernandes as Secretary of the Senate, show that immediately following an opening prayer the roll was called and 51 of 59 elected Senators were declared present.Respondent indicated that a quorum was present and opened the nominations for President of the Senate.Senators Shapiro and Rock were nominated and the nominations were seconded.A motion that the Senate adjourn until February 10 was made and seconded, and a motion was made to table the adjournment motion.By a vote of 50 ayes to 5 nays the motion to adjourn was tabled.Nominations were closed, and respondent announced that a vote to elect the President would be held, ruling that "the vote of a majority of the members present and voting will be required to elect the President."Senator Dawn Clark Netsch appealed the ruling of the chair, stating:

"I would just question that ruling, it is completely contrary to everything that has been established as precedent and indeed to your own ruling of last Session, as I recall.It is has required a majority of the Senators elected to the Senate, that has been our practice, at least, in the eight years that I have been here, and I can recall, at least, two explicit rulings, and I believe three to that effect."

Respondent explained his ruling by noting that "in the absence of a limitation in the Constitution, in the absence of a limitation in a Statute, in the absence of any pending ruling of this Senate now in effect, it is the opinion of the Chair that the Body has the right to conduct its business by * * * a vote of the majority of the members present and voting."Senator Netsch's appeal was seconded.Upon a request being made, a recess was called for party caucuses.

The transcripts show further that, upon reconvening, there was a call for a vote on Senator Netsch's appeal.After brief debate concerning a motion to limit debate Senator Netsch questioned the presence of a quorum and the Governor ordered that the roll be called to determine whether a quorum was present.While the transcript shows that the acting secretary began calling the names of the Senators aloud, the transcript does not reflect an affirmative response of "present" or a negative response of "not present" for each Senator called during this roll call.The names of 27 Senators had been called when respondent noted that: "the mover * * * on the question of the quorum has left the Floor, and so, her request is now out of order.Stop the roll call.I'm sorry, she's come back.Continue the roll call for as long as she remains on the floor."The names of 10 more Senators were then called, when once again respondent ordered the roll call stopped because "the questioner of the quorum has left the floor."A vote was then taken on Senator Netsch's appeal from the ruling of the chair, and the chair was sustained by a vote of 29 ayes to no nays.

Next the roll was called for election of the President of the Senate, during which respondent stated "The Chair notes the presence of Senator Savickas," and after which respondent stated: "The Chair will again note * * * that Senator Frank Savickas was present on the Floor of the Senate during the roll call."While the names of all 59 Senators were called during this vote, the transcript shows only that Senator Shapiro received 29 votes and Senator Rock received no votes.Senator Savickas, whose name was called twice during the voting, did not respond either time.A motion to reconsider the vote by which Senator Shapiro was declared the President of the Senate was tabled on a voice vote.Following the administration of his oath, Senator Shapiro made a brief speech, and, in commenting on the appointment of a committee to escort the Governor from the Senate chamber noted: "I am sorry to say that at the present time there is no one on the Democratic side available to provide their members to the honor guard."Senator Shapiro then appointed assistant majority leaders, and further commented: "And since there is no one here from the loyal opposition, a Minority Leader will be selected by the Democratic Party at a later date."

The transcript also shows that the Senate proceeded to adopt a number of resolutions but that the only matter on which the vote was recorded was the selection of the body's "permanent" officers.These officers were elected by a vote of 29 ayes and no nays.

We consider first the respondents' contention that mandamus is not an appropriate remedy.They argue that a writ of mandamus cannot be used to compel the respondent Governor to "undo a performed act and redo it in another manner."Further they contend that as presiding officer the Governor "must engage in a variety of discretionary acts, including parliamentary rulings" and that "where the doing of the thing demanded is discretionary with the respondent, mandamus will not lie to compel it."Respondents also argue that "the acts which petitioners seek to compel the Governor to perform require the conduct, approval, and cooperation of the Senate" and mandamus is inappropriate where the official act to be performed depends upon the cooperation of a third party.It is also argued that the legal right of Senator Shapiro to hold his office can only be attacked through a proceeding in quo warranto.

Petitioners contend that the duty to convene the Senate is "ministerial" and "is a present and continuing duty required to be performed by the Governor in accordance with the legislative provisions of the Constitution."They argue, too, that the court can act in mandamus where public issues of serious concern require a speedy resolution.Further, petitioners contend that the Governor's acts are "for the purposes of this proceeding no acts and the Governor has not performed the duty enjoined upon him * * *."

We note first that the pleadings in this case present no issue of what remedy may be appropriate, if any, in the event of the refusal on the part of the Senate to approve and cooperate in the performance of any act ordered by this court.Further, they present only as a secondary issue the question of the legal right of respondent Shapiro to hold the office of President of the Senate.The pleadings present only the questions whether the respondent Governor has failed to comply with the provision of article IV, section 6, of the Constitution and, if so, whether a writ of mandamus may appropriately issue requiring such performance.

Prior decisions of this court provide ample authority to hold that this court has jurisdiction to consider an original action in mandamus and, if appropriate, issue the writ.For many years the Election Code provided that "The Governor * * *, the Secretary of State, * * * the Attorney General, the State Treasurer, and the Auditor of Public Accounts shall constitute the State Electoral Board."(Ill.Rev.Stat.1951, ch. 46, par. 7-14.)In People ex rel. Scott v. Kerner(1965), 32 Ill.2d 539, 208 N.E.2d 561, andPeople ex rel. Meyer v. Kerner(1966), 35 Ill.2d 33, 219 N.E.2d 617, this court granted leave to file original actions in mandamus and issued writs to the ...