Guest Commentary | State still needs a proper gubernatorial-incapacity law

Guest Commentary | State still needs a proper gubernatorial-incapacity law

By BRIAN J. GAINES

Newly inaugurated J.B. Pritzker is the 43rd individual to serve as governor since Illinois achieved statehood, just more than 200 years ago.

Most of his elected predecessors have served complete terms, but some have resigned from office, died midterm or have been impeached and removed from office. In all of these cases, the lieutenant governor took over without any political or legal difficulty.

The state has been fortunate that no recent governor has suffered a medical challenge sufficient to prevent him from governing.

Article V, Section 6 (c) of the Illinois Constitution dictates how a governor can voluntarily yield powers, temporarily. Section 6 (d) stipulates that the General Assembly specify procedures for dealing with gubernatorial inability in the absence of voluntary relinquishing.

It gives the state Supreme Court authority "in the absence of such a law."

Fifty years on, the Legislature has not taken up the matter, and the Supreme Court, in turn, has filled the void with Rule 382, an obscure provision offering few details beyond that any case would "proceed in the manner ordered by the court."

That language is intended to "give the court complete flexibility as to the procedure to be followed, depending upon the circumstances of the particular case." Flexibility sounds fine, but it is the opposite of predictability.

Decades ago, Illinois did face a succession crisis. Democrat Henry Horner was elected in 1932, then re-elected in 1936. He suffered a stroke in 1938 and spent months recovering, first in Florida and then back in Illinois.

He returned home and clung to power in very difficult circumstances in part to prevent Lt. Gov. John Stelle, a fellow Democrat but also a bitter rival, from succeeding him.

Until his death in 1940, Horner and his allies fought off numerous challenges to his authority, originating in not necessarily inaccurate charges that the bedridden governor was neglecting official duties and unfit to govern.

More recently, the state narrowly avoided a mess when Gov. Jim Edgar required emergency heart surgery in 1994. Thankfully, he quickly recovered and was able to resume his duties within days. But Lt. Gov. Bob Kustra had been on the verge of resignation at the time, so, with worse luck, the state could have had a governor in ill health without a lieutenant governor to take over.

I wish Pritzker a long, happy life and much success in his stressful new job. Of course, like anyone, he could fall seriously ill. Should that happen, do the people of Illinois really want the Supreme Court to make up new rules on the spot for how to proceed? Would it not be better to know in advance exactly how any dispute about the governor's fitness would be resolved?

Ideally, succession rules should be set without knowing the individuals involved, but it is too late for such blind rule making.

The change in administrations provides an opportunity for the General Assembly as Illinois enters its third century of statehood. While filling this gap is not as important as addressing the state's fiscal problems, a quick bipartisan effort to make the Prairie State like most others in having a clear gubernatorial-incapacity law could set a good precedent for dealing with the challenges ahead.

Brian J. Gaines is a senior scholar at the University of Illinois Institute of Government and Public Affairs and a professor of political science at the University of Illinois at Urbana-Champaign.

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