CBA Nov.-Dec. 2020

“limited lockstep doctrine,” which dictates that, when construing state constitutional provisions that are similar to provisions of the federal constitution, state courts gener- ally will not depart from the U.S. Supreme Court’s interpretation of the federal char- ter. UIC John Marshall Law School Prof. Timothy P. O’Neill has written that the limited lockstep doctrine “flouts basic principles central to the effective running of the federal system,” under which a state court should be “free to go beyond” the constitutional minimum contained in the federal constitution, “to create a system that it considers perfect for itself.” In 1977, the Supreme Court declared that it could define – and therefore restrict – the jurisdiction of the Judicial Inquiry Board, a decision that Ladd says “basically gutted the JIB and the Courts Commission very early on.” Lousin has observed that, although the 1970 Constitution created a private right of action for employment discrimination, the courts have required grievants to exhaust their administrative remedies with the Illinois Human Rights Commission, as they must for claims under the state’s Human Rights Act, before going to court to assert their constitutional rights, thereby rendering the constitutional remedy a “toothless tiger.” Commentators have also criticized the Supreme Court’s crabbed reading of the 1970 Constitution provision that permits citizens to bypass the General Assembly by placing proposed amendments to the Legislative Article on the ballot by peti- tion. In the past 50 years, only one such amendment has successfully reached the ballot – the 1980 amendment eliminating multi-member districts and cutting back the House of Representatives by one-third. The Supreme Court has barred numer- ous other petition-based amendments, including proposals regulating legislators’ conflicts of interest and prohibiting them from holding other public offices, creating term limits for legislators, and reforming legislative redistricting, ruling that these measures did not satisfy the constitutional requirement that such amendments must relate to “structural and procedural sub- jects.” In effect, Nowlan says, the Supreme Court has “narrowed the legislative initia-

tive basically to oblivion.” Quinn, whose Coalition for Political Honesty sponsored the cutback amendment and several of the other measures blocked by the Supreme Court, regrets that “there is just not enough in the Constitution to allow the voters to intervene and reform practices that the incumbents allow to continue.” The more political branches of the government have also stood in the way of the 1970 Constitution reaching its full potential, some observers say, perhaps most strikingly in the domain of legislative redis- tricting. The delegates to the 1969-1970 Constitutional Convention left redistrict- ing in the hands of the General Assembly and the governor, but recognized that the state’s partisan and regional divisions might result in a stalemate that would prevent the adoption of a redistricting plan after the decennial census. They devised a two- step procedure for responding to such a deadlock. First, the leaders of the Senate and House of Representatives appoint an eight-member Legislative Redistricting Commission evenly divided betweenDem- ocrats and Republicans. If this commission is also unable to agree upon a new map, the Supreme Court submits the names of two persons not of the same political party to the Secretary of State, who then randomly selects one of those persons to serve as the tie-breaking member of the commission. According to Alexander, “Most delegates were convinced that the two parties . . . would draw reasonably fair new districts rather than allow one to gain the upper hand the by lottery addition of an additional member. Neither party, it was hoped, would risk the nearly ‘winner take all’ approach of an additional member. We were all wrong.” As Quinn observes, “the political parties take their chances rather than compro- mise.” Alexander has noted that, “Each rel- ishes the 50-50 opportunity of imposing its dream map on the other party for 10 years at a time.” In fact, the political branches could not agree upon a legislative redistrict- ing plan after the censuses of 1970, 1980, 1990 and 2000, resulting in the convening of a legislative redistricting commission. The last three of those commissions dead- locked along partisan lines, requiring the

selection of a tie-breaking member. Another example has been the General Assembly’s approach to the amendatory veto, an innovation that allows the gover- nor to return a bill to the house in which it originated with his or her objections and proposed changes, which the Gen- eral Assembly can either accept or reject. The General Assembly has been hostile to this measure from the beginning. The very first amendment to the Constitu- tion that the legislature submitted to the voters in 1974 proposed to do away with the amendatory veto. After the electorate defeated the measure, Quinn says that the General Assembly has frequently refused to bring the governor’s proposed changes to a vote, effectively killing the entire bill rather than giving into the governor. On the other hand, Alexander has written that, “Most delegates expected this veto to be employed in a housekeeping fashion to ‘clean up’ minor mistakes of language in proposed legislation. Instead, almost from the outset, governors have used this new toy to rewrite legislation.” Mixed Reviews What we are left with is very much a mixed bag. The 1970 Constitution is more modern and less verbose than its predecessor, and it is not weighted down with legislative detail. The charter contains significant innovations and reforms. It is filled with great potential, substantial por- tions of which remain unrealized due to the action – or inaction – of all three branches of state government. At this point, the best assessment of the 1970 Constitution may be that of James Nowlan, who says that it has been “a useful but not transformative charter. Overall it is a decent document that should be given a strong ‘B’ grade.” James D. Wascher is a federal administra- tive law judge in Denver, CO and a former judge of the Circuit Court of Cook County. He has been a long-time contributor to the CBA Record.

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