Mr. Burris Goes to Washington... Again
Mr. Burris will be going back to Washington as the junior Senator from Illinois. And if his lawyers read the opinion handed down today from the Illinois Supreme Court, the three of them will return with sprin in their steps and feeling (rightfully) pretty damn smug.
But wait, you say... didn't the Court rule against him? Didn't all the media say he's right back where he started? Didn't Sen. Dick Durbin say he still needs to have that pesky signature from the recalcitrant Jessie White, Illinois Secretary of State?
Yes, to all of the above. But the one thing all of the above failed to do was really READ the opinion.
Here are the salient parts (and that means I will not be making fun of the mausoleum Mr. Burris has built for himself or the fact that his children, Roland and Rolanda, are named after him.)
Mr. Burris filed a writ of mandamus, specifically, an attempt to order ("we command") the Secretary of State of Illinois to perform what the petitioner (Mr. Burris) deemed to be the Secretary's duty of signing the certification of the apoointment of Burris as the next Senator of Illinois by the Governor. Burris filed the writ pursuant to Jessie White's refusal to sign the certificate because of the scandal regarding the Senate seat in question.
The state's Supreme Court reviewed the matter and presented its findings:
The appointment by the Governor is valid with or without the signature of the Secretary of State:
mandamus is whether Jesse White, the Secretary of State of the State of Illinois, is required by section 5(1) of the Secretary of State Act (15 ILCS 305/5(1) (West 2006)) to countersign and affix the seal of the state to the document issued by Governor Rod R. Blagojevich on December 31, 2008, certifying the Governor's appointment of Roland Burris to the United States Senate. For the reasons that follow, we hold that section 5(1) of the Secretary of State Act (15 ILCS 305/5(1) (West 2006)) is inapplicable to the Burris appointment, and that no further action is required by any officer of this state to make that appointment valid.The issue presented by this original action for
We further hold that the only ministerial act required of the Secretary of State in this case is that he register the appointment in accordance with section 5(2) of the Secretary of State Act (15 ILCS 305/5(2) (West 2006)). The Secretary of State having performed that responsibility on December 31, 2008, the writ ofmandamus is denied.
Thus the Illinois Supreme Court has upheld what Mr. Burris and his attorneys have been saying all along: the appointment is legal (regardless of the status of the Governor) and is valid because the Secretary of State recorded the appointment in the legally proscribed manner. According the laws of the State of Illinois, Mr, Burris is a US Senator.
The Court goes on to distinguish between "commissions" and "commissioners" and when the Secretary of State must issue, sign and seal any commissions. The appointment to US Senate does not require appointment to any "commission:"
Because gubernatorial appointments only require issuance of an actual commission when the governing law so provides and because no provision of law makes issuance of a commission necessary for the validity of a gubernatorial appointee to a United States Senate vacancy, no commission was required by law to effectuate the appointment of Mr. Burris to the United States Senate. And because the Secretary of State's "sign and seal" duty is triggered only in cases where commissions are required by law, it necessarily follows that the Secretary of State had no duty to sign and seal the certificate of appointment issued by the Governor in this case. Under section 5(2) of the Secretary of State Act (15 ILCS 305/5(2) (West 2006)), the Secretary of State's sole duty was to register the appointment, which he has done.
The Court then smacks down the US Senate and its stance that its tradition is of overarching importance. (Both Reid and Durbin have claimed that Senate tradition, since the 1800s has required dual signatures on the credentials presented by new Senators.) The Senate's own language undercuts the Reid-Durbin argument:
mandamus action against the Secretary of State. The only issue before us is whether the Secretary of State, an official of this state, failed to perform an act required of him by the law of Illinois. He did not. [Emphasis added.]In their pleadings, Petitioners suggest that the United States Senate has taken the view that the Governor's signed, hand-delivered certificate of appointment is insufficient to meet the requirements of the Senate's own internal rules. We note, however, that nothing in the published rules of the Senate, including Rule II, appears to require that Senate appointments made by state executives pursuant to the seventeenth amendment must be signed and sealed by the state's secretary of state. Moreover, no explanation has been given as to how any rule of the Senate, whether it be formal or merely a matter of tradition, could supercede the authority to fill vacancies conferred on the states by the federal constitution. Under these circumstances, the Senate's actions cannot serve as the predicate for a
Finally, the Court gives Team Burris the road map to Washington, D.C.:
People ex rel. Devine v. Stralka, 226 Ill. 2d 445, 450 (2007) (for mandamus to issue, the petitioner must be without any other adequate remedy).There is one final point we feel constrained to mention. While the Secretary of State has no duty under Illinois law to sign and affix the state seal to the certificate of appointment issued by the Governor, he does have a duty under section 5(4) of the Secretary of State Act (15 ILCS 305/5(4) (West 2006)) "to give any person requiring the same paying the lawful fees therefor, a copy of any law, act, resolution, record or paper in his office, and attach thereto his certificate, under the seal of the state."
The registration of the appointment of Mr. Burris made by the Secretary of State is a "record or paper" within the meaning of this statute. A copy of it is available from the Secretary of State to anyone who requests it. For payment of the normal fee charged by the Secretary of State in accordance with this statute, Petitioners could obtain a certified copy bearing the state's seal. Because such relief is possible, no order by this court is necessary or appropriate. See
In other words, Mr. Burris and his lawyers need to hightail it to the Secretary of State's office with the cash needed to "buy" the signature of Jessie White on the pages of the Great Big Book of Registrations, complete with the seal of the Great State of the Land of the Great Emancipator. If Mr, White objects, a new writ of mandamus can be filed, as Mr. White would have failed to perform one of his duties, to wit, providing any person who asks for it, and pays for it, a copy of the registration of one "Roland Burris, Trailblazer" as the third African-American Senator from the State of Illinois.
The Court has also thrown down the gauntlet, challenging Mr. Reid and Mr, Durbin to reject the opinion of the Supreme Court of Illinois, the legal and binding record of the State of Illinois, and the legal and binding appointment of the Senator made by the legally elected (albeit currently impeached) Governor of the Great State of Illinois.
Game, Set, Match to Mr, Burris, the junior Senator from Illinois.
