It’s little wonder Cook County Judge Dorothy Kirie Kinnaird said she was “flabbergasted” at what happened Thursday in her courtroom.
After all, she was orchestrating an adversarial system without adversaries, trying to summon some argument–any argument–from a line of lawyers apparently testing the rather curious theory that the best defense is no defense.
And what those lawyers were declining to defend was a law of considerable import. Faced with a challenge to the constitutionality of a law that would remap the state’s judicial districts and shake up the political makeup of the Illinois Supreme Court, lawyers representing a variety of state agencies responded with a collective shrug.
The Illinois attorney general’s office, which normally defends state laws, bowed out because of a conflict involving a related lawsuit, and the attorneys designated to fill the void showed no desire to enter the fray.
“Do I have it right that nobody is coming forward to defend this act?” Kirie Kinnaird asked the lawyers, her voice incredulous.
Yes, the lawyers told her. She had it right.
Kirie Kinnaird gave the lawyers one more day to reconsider, saying they had until the end of Friday to file a defense–if they so choose.
She plans to issue a ruling Monday on the lawsuit challenging the law. One option is to issue a permanent injunction that would strike the law as invalid. Earlier this month, she issued a temporary restraining order that freezes the law from taking effect. Kirie Kinnaird extended that order Thursday.
The upshot is that while the legislature saw fit to pass the bill and the governor saw fit to sign it, so far at least, nobody sees fit to defend it in court.
That didn’t come as such a surprise to lawyers representing the state’s two largest bar associations–the plaintiffs in the case. The Chicago Bar Association and Illinois State Bar Association filed suit March 10, alleging that the redistricting bill is blatantly unconstitutional.
They attribute the lack of a defense to, well, the lack of a defense.
“I don’t think anyone seriously thinks this law complies with the Illinois Constitution,” said Steven Pflaum, an attorney representing the Chicago Bar Association.
Pflaum said that if the defense doesn’t mount a fight at the Circuit Court level, it might not have any issues to appeal.
“I think they have to speak soon or forever hold their peace,” Pflaum said.
Fred Foreman, an attorney representing Secretary of State George Ryan, one of the lawsuit’s defendants, said after the hearing that no determination had been made on whether a defense would be raised Friday.
The bill, which likely would provide Republicans with a majority on the Illinois Supreme Court for the first time in more than a quarter century, was passed by the Republican-led General Assembly in January on the last day that Republicans controlled both chambers.
It calls for the three Supreme Court justices from Cook County to be elected in subdistricts rather than countywide, giving a Republican a strong chance of being elected from a subdistrict concentrated in the suburbs. Bar groups criticized the legislation, saying it violates the Illinois Constitution.
On the same day the legislature passed the bill, the Republicans also filed a federal lawsuit in Springfield, alleging the provision in the Illinois Constitution for Supreme Court elections violates the U.S. Constitution.
The Republicans contend that any requirement for at-large elections in Cook County violates the one-person, one-vote principle rooted in the federal constitution’s equal-protection clause.
Whatever else the two lawsuits have done, they have certainly placed the office of Atty. Gen. Jim Ryan in an awkward position.
Ordinarily, the office would defend the state against the bar group’s lawsuit, but in this case, the attorney general is already defending the Illinois Constitution against the Republicans’ federal
lawsuit.
If the attorney general’s office took part in the state proceeding, it would be defending the Illinois Constitution’s provision on Cook County at-large elections in one case while defending a law that flies in that provision’s face in another.
Republicans said Thursday that they were clearly focusing their efforts more on their own lawsuit–playing offense in federal court rather than defense in state court, where they don’t like their chances. Cook County Circuit Courts have ruled against major agenda items approved by the GOP-run legislature in the last two years, including civil-liability reform.
“Everyone knows the Cook County courts are owned, controlled and operated by the Cook County Democratic Party,” said Rep. Jack Kubik (R-Riverside), the House sponsor of the judicial redistricting bill. “It’s not a fair venue.”
Steve Culliton, the attorney general’s chief of staff, said the office became involved with the federal case because of the overriding constitutional issues.
“It’s compelling with respect to the duties of the attorney general to defend the constitution. That’s an obligation we have that we feel we should exercise,” Culliton said.
Because of the attorney general’s potential conflict in the state suit, special counsel was brought in for the secretary of state and the State Board of Elections–the defendants in the case.
But noting that the election-related duties of the secretary of state that would be affected are “ministerial only,” its lawyers filed papers saying the office “does not support or oppose the positions” challenging the law’s constitutionality. The State Board of Elections’ lawyer said that agency was adopting the same approach.
In addition to changing the way Supreme Court justices would be elected in Cook County, the bill would redraw each of the four districts from which the court’s other members are elected. The bar groups have challenged that part of the remap because it splits some trial-court circuits into more than one appellate district.
In a provision that provoked mostly laughter in court Thursday, the bill also prohibits its redrawn districts from being altered by operation of any other statute–in effect, tying the hands of future legislatures.
The bar group lawyers said such a provision is obviously unconstitutional and would prevent the General Assembly from redrawing the districts to reflect population shifts.
After the plaintiffs skewered that provision, Kirie Kinnaird turned to the defense lawyers.
“The defendants can jump in any time they want to defend this,” Kirie Kinnaird said.
“Thank you, judge,” was Foreman’s only reply.
