The Attorney General's Argument at Page 11 of the Brief:
This Court should declare that Mr. Blagojevich is currently disabled from serving as Governor. Under the Illinois Constitution, the Governor shall be replaced by a successor if he "is unable to serve because of death, conviction on impeachment, failure to qualify, resignation or other disability." Ill. Const. Art. V, Sec. 6(b); see 15 ILCS 5/1 (2006). The determination of the Governor's ability to serve under this provision is a matter for this Court to decide. Ill. Const. Art. V, Sec. 6(d).
The AG is misrepresenting the content of the Constitution. The Court was NOT constitutionally delegated the authority to determine the Governor's ability to serve. The LEGISLATURE was constitutionally authorized to MAKE A LAW and it is that law and its application that is reviewable by the Court. See Illinois Constitution Article V, Section 6, entitled "Gubernatorial Succession":
SECTION 6. GUBERNATORIAL SUCCESSION
(a) In the event of a vacancy
, the order of succession
to the office of Governor or to the position of Acting
Governor shall be the Lieutenant Governor, the elected
Attorney General, the elected Secretary of State, and then as
provided by law.
(b) If the Governor is unable to serve because of death,
conviction on impeachment, failure to qualify, resignation or
other disability, the office of Governor shall be filled by
the officer next in line of succession for the remainder of
the term or until the disability is removed.
(c) Whenever the Governor determines that he may be
seriously impeded in the exercise of his powers, he shall so
notify the Secretary of State and the officer next in line of
succession. The latter shall thereafter become Acting
Governor with the duties and powers of Governor. When the
Governor is prepared to resume office, he shall do so by
notifying the Secretary of State and the Acting Governor.
(d) The General Assembly by law shall specify by whom
and by what procedures the ability of the Governor to serve
or to resume office may be questioned and determined. The
Supreme Court shall have original and exclusive jurisdiction
to review such a law and any such determination and, in the
absence of such a law, shall make the determination under
such rules as it may adopt. (3) His or her becoming a person under legal disability.
The term "disability" in Sec. 6(b) is unambiguous. A "disability" is a "disabled condition" or "that which disables or disqualifies." Webster's New World Dictionary 175 (Warner Books ed. 1987). To "disable" is to "make unable, unfit, or disqualified," id., or "to take away the ability of, to render incapable of proper and effective action," Black's Law Dictionary 548 (Rev. 4th ed. 1968).
However, the Illinois courts have defined the term "legal disability" to mean the following:
A person suffers from a "legal disability" where he or she is "entirely without understanding or capacity to make or communicate decisions regarding his person and totally unable to manage his [or her] estate or financial affairs." Estate of Riha v. Christ Hospital, 187 Ill. App. 3d 752, 756, 544 N.E.2d 403 (1989). In a case where a legal disability is alleged, the record must contain sufficient allegations of fact from which one could conclude that the person seeking to be found legally disabled was incompetent or suffered from serious mental disorder which made that person entirely without understanding or capacity to make or communicate decisions regarding his person and totally unable to manage his estate or financial affairs. Sille v. McCann Construction Specialties Co., 265 Ill. App. 3d 1051, 1055, 683 N.E.2d 676, 679 (1994).
If the Lieutenant Governor determines that the facts are sufficient to conclude that the Governor is incompetent or suffered from a serious mental disorder which makes him entirely without understanding or capacity to make or communicate decisions or to manage the governorship, then the Lieutenant Governor may declare that the Office of the governor is statutorily "vacant" until such time as the legal disability is removed and the Lieutenant Governor may assume the duties as the acting governor. Under the constitutional provision cited by the AG, the Lieutenant Governor's application of the law and his determination can be reviewed by the Supreme Court.
Again, the AG is misrepresenting the law when she claims that the Illinois Supreme Court has constitutional authority to determine the governor's fitness to remain in office.