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.
You got this right. I read the entire decision this morning. They side stepped a silly issue with a clever argument regarding dissemination of info to the public for a set fee. When you order a copy of a Governor's order it has the official seal on it.
I really loved this decision. And you are correct. When Burris showed up the first time in the rain, he was right. He was the duly appointed Junior Senator from Illinois.
Good post. I was looking for this.
January 9, 2009 8:38 PM | Reply | Permalink
I respect your opinion, but couldn't disagree more.
Anyone who watched Burris standing silently there while Rush used the race card and still supports Burris needs to take a good look in the mirror. That sickened me more than even Blagojevich's faith healer session yesterday or his poetry slams. Burris' silence while Bobby Rush screamed racism told me all I need to know about his character.
The Senate historically has rejected or delayed two dozen appointments - including a Dupont and Boss Quay - and must exercise due diligence to determine if the appointment is legal.
Should a Governor, for example, be blackmailed or forced by threat of violence to sign his name to a piece of paper, the Senate may reject the appointment. And it is the job of the Rules Committee to ensure that the appointment process was legal.
In this case, the Governor has been arrested for attempting to sell the seat. He has been impeached by the Illinois State House for his actions, and an impeachment trial is pending.
The argument that "nobody has said Burris did anything illegal" is specious. The arrest and impeachment of the Governor are legal facts. The Senate has the absolute right and duty to make certain that the Burris appointment process was legal.
And the Illinois State Supreme Court has no more power to tell the U-S Senate what to do than did the Mississippi State Supreme Court back in the days of Ross Barnett. The Senate, as a co-equal branch of the federal government, trumps any State court in determining the Senate's rules of order.
I doubt if the Roberts Court, which has been cautious in its actions, would quickly jump into this legal thicket. They will likely wait.
I also doubt whether Blago the Clown will remain in office more than a month, given the time frame set out by members of the Illinois State Senate.
Given that scenario, I wonder what would happen if the new Governor appoints someone while the Burris appointment is still pending. Would the Senate get to choose the new Junior Senator from Illinois from Column A or Column B(lagojevich)?
And, in any case, I wonder how the Senate Republicans will vote on seating Burris. Conservatives have been screaming for him to be seated, because he will be the poster boy for corruption and the race card. Also they can't wait to have at him in 2010. But if 41 Republicans can deny Al Franken his seat, they could also deny this five-time loser his seat as well...no matter what Democrats do.
Just because Burris may be a loyal Democrat is not reason enough to seat him. For the past eight years, we have suffered through a corrupt Presidency that put loyalty and fealty above all else. The appointment to fill the seat of our next President must be honest and transparent.
Sadly, the appointment of Roland Burris is not.
January 10, 2009 11:04 AM | Reply | Permalink
I cannot disagree with your take on this. I just know that the State Supreme Court ruled. If you wish to interpret state law, the supreme court of that state is supreme unless the decision interferes or contradicts Federal Law.
The ruling was that Burris was the Junior Senator from Illinois when he said he was.
That is all.
Right or wrong from some moral standpoint or political standpoint is irrelevant.
You can disagree with the decision. I do that all the time.
But there can be no new appointment because there are only two slots in the Senate for the the people of Illinois, and those two seats are filled.
If the United States Senate decided not to seat him, I would have to look and ask why that decision was made.
January 10, 2009 11:38 AM | Reply | Permalink
Your opinion is well reasoned and well written.
I did mix my personal opinion and my view of the law, and shall now speak only to the law.
The Illinois Supreme Court can rule - with standing - on whether the appointment conforms with Illinois State law and procedures. But it has no say in determining what the United States Senate may or may not require.
The legal issues surrounding the Burris appointment are clearly NOT settled law. There are no clear precedents where a Governor was arrested for trying to sell a seat during the process of making an appointment. And no cases where a Governor was impeached for - in part - trying to sell the seat during the appointment process.
Powell v McCormack speaks to an uncontested election result, but does not speak to an appointment where there has been an arrest and impeachment.
Powell affirmed the Constitutional right of the voters of that Congressional District to the representative of their choice. I'm not sure how much of Powell applies in this case. My thought is not much, and this cautious Supreme Court would likely wait to weigh in.
From 1796 to 1913, Senators were appointed - and the Senate rejected two dozen such appointments.
The reasons were colorful, ranging from sedition to bank fraud.
The two most powerful Republicans in the country at the turn of the century may have been Boss Hanna and Boss Quay. Yet the Senate rejected the appointment of Matthew Stanley Quay of Pennsylvania in 1904 because of his suspected involvement in a bank failure.
And they rejected two Alabama appointments in 1913, because they violated the new Constitutional amendment requiring popular election of Senators.
So, historically, the Senate has used its powers to deny appointments. Powell has limited their powers, but does not speak directly to the issues in this case.
There are two parts to every legal argument: the facts and the law.
It is the Senate Rules Committee's job to determine the facts here. They must determine the legality of the appointment - which includes to some extent the process. They cannot simply accept Burris and Blago saying there was no quid quo pro.
Burris, testifying Thursday in Springfield, contradicted his initial assertion that he never spoke to any representative of the Governor about the job. He admitted Thursday that he had, in fact, spoken with Lon Monk, also known as Lobbyist #1. That's a contradiction that must be examined further and explained.
You are absolutely right when you say that if the Senate decides not to seat Burris, you would have to ask why that decision was made.
So would I.
And I'm not 100% certain that the allegation that Blagojevich tried to sell the seat (an allegation we all believe) would automatically void any appointment he might make without quid quo pro.
Historically, this will forever be the Obama seat. The one that is up for a six year term in 2010. It is a seat that should be held with honor, befitting our President-elect.
When America voted for Barack Obama, it voted for change. Not just in Washington. Even in Springfield. Maybe even in Chicago. But I guess that's asking for too much
January 10, 2009 12:16 PM | Reply | Permalink
Homer, your is correct. I just finished reading an article in the LA Times. Like I said, the U.S. Senate may choose not to seat him. And Durbin, of all people is citing some 175 year old rule about how a Secretary of State has to somehow sign onto the appointment.
But Reid has said he wants the entire Senate to vote on this. Politics mixed in with the law.
January 10, 2009 12:49 PM | Reply | Permalink
Two other points: McCormick included 13 constituents as plaintiffs who went a long way to establish standing - one of several requirements for the court to hear the case. Are they going to accept the argument that Burris himself is harmed by not being accepted for the appointment? Will that be enough for the court to place a check on a coequal branch?
Also, the 1993 case of Nixon v. US (no, not that Nixon) also seems to open the door to declare this a political question and undermines the absolute interpretation of McCormick that most armchair blog-lawyers seem to be resting their hat on. I sure am not an expert, but I do wonder, with such divergent facts from McCormick if Nixon isn't more applicable. There is only very indirect voter involvement (the voters chose Obama) and this is almost entirely a conflict between government entities. The constitution does grant the Senate authority to make and interpret their own rules.
The USSC *could* just punt and refuse to hear the case on issues of justiciability.
January 10, 2009 12:57 PM | Reply | Permalink
yes
January 10, 2009 3:15 PM | Reply | Permalink
I remember James Meredith so I know how Senator Burris feels. And I thought the era of democrats standing in doors baring blacks from entering was over. When will democrats stop being the party of hate? From the republicans having to fight a war against the dems to free the slaves, to Jim Crow, to Roosevelt giving blacks syphilis at Tuskeegee, to Truman setting blacks up to get killed, to JFK voting against the 1959 civil rights bill, to George Wallace and his big cohort of dems keeping black kids out of schools. When will democrats stop this racial hatred?
January 10, 2009 11:05 AM | Reply | Permalink
The "Party of Hate" as you call it nominated and elected an African American as President of the United States.
The Democrats, friend, stopped being the party of hate when Richard Nixon and Harry Dent concocted the Republican Southern Strategy. Strom Thurmond became a Republican. Ronald Reagan began his 1980 campaign in Philadelphia, Mississippi (coincidence?) and the white racists and "segs" in the south understood and became Republican.
I see more than forty African American members of Congress. And approximately zero of that number are black.
Don't know what you're smoking, but I'd like some.
January 10, 2009 11:43 AM | Reply | Permalink
The democrats ran a half Kenyan with an affirmative action legal degree. It's pure tokenism. You've got to view history objectively.
January 10, 2009 11:52 AM | Reply | Permalink
That's some tired pathetic BULLSHIT. Go have a drink with Rove and the rest of the race-baiters. Trying to play on "white guilt" vs. "black grievance" ain't gonna cut it on this one.
January 10, 2009 1:11 PM | Reply | Permalink
Now that little tirade really hits the bullseye countering the factual statements I made above.
I had to attest to being an adult to get admitted to this thing. To some people, facts and honesty are irrelevant. But I suppose one should overlook children.
January 10, 2009 4:38 PM | Reply | Permalink
Rcvd!
January 10, 2009 11:12 AM | Reply | Permalink
What Burris has is SoS White's signature and stamp on a separate document verifying that it was indeed Governor Blagojevich (and not some imposter) who made and registered the appointment on paper with the SoS's office. It says that copy of the appointment document he got yesterday is a valid copy of the one Blago registered. What he doesn't have is White's signature and stamp on the appointment document itself. As it now stands the senate may or may not accept the appointment document registered with the SoS and this separate validating document.
I know it looks like a distinction without a difference but if I spend $15 to get a copy of my birth certificate and take it to the DMV to get a new driver's license in Illinois it better be an original copy signed and stamped by the SoS or I stood in line for nothing. Bringing the envelope it came in or another letter with the SoS's signature and stamp on it attesting to it's authenticity doesn't cut it.
If Reid and Durbin want to use this as justifcation for denying Burris they can. The senate makes it's own rules according to the constitution and they can choose to seat or not seat anyone they want based on nothing more than the age old customs Durbin cited yesterday. The IL SC has no jurisdiction over the US senate. They can only rule on whether or not Burris has everything he needs legally from the State of Illinois's point of view. What satisfies Illinois's requirements doesn't necessarily satisfy US senate requirements no matter what those august jurists opine.
In the end if Reid and Durbin choose to stall I don't think there are any federal judges who are going to go to bat for a grandstanding wannabe senator tainted by an appointment from a governor who will have been removed from office by the time they hear the case against the people who control their own future career advancement, the majority party US senate leadership. Even if Burris could find a sympathetic court he's asking them to reinterpret the constitution and mess with senate prerogatives to rule in his favor. If that's the course Reid and Durbin are taking I hope Burris and his lawyers think it all the way through and realize they'd be looking at legal equivalent of scaling Everest in shorts & sneakers.
Durbin has left himself and Reid wiggle room while the senate lawyers draw up opinions on both sides of the issue for them to choose from. It's possible they're pressuring Burris to publicly pledge he won't run again in 2010 as a precondition for seating him. It's also quite possible they're looking into the legality of having Quinn appoint a different senator in a few weeks. I have no idea whether or not they can pull that off.
January 10, 2009 6:21 PM | Reply | Permalink
Mr. Burris is the Senator.
Please read or re-read the opinion from the Illinois Supreme Court.
It states flat out the Blagojevich's appointment is legal and binding. There are two conditions that make it so: the Governor making the appointment, within his authority as directed by the state's constitution and the REGISTERING of that appointment by the Secretary of State. BOTH of those conditions have been met.
The document Mr. Burris needs is not some letter from Jessie White authenticating Blagojevich's appointment. What the Supreme Court told him to get is a copy of the registration whereby the appointment was recorded, signed and sealed by the Secretary of State. Big Difference. This is what they wrote:
The US Senate has no standing here because the constitution cedes to the states the authority and all mechanisms to fill vacancies -- whether by regular election, special election or appointment. Senate rules and traditions to not supercede that authority.
Further, merely removing one Governor and replacing him with another does not undo what has already been done. Mr. Burris is legally appointed. Pat Quinn cannot simply appoint someone new because he has no grounds to "unappoint" the legally appointed Mr. Burris.
The Court, even though they had ample opportunity to do so had the law allowed, did not revoke or challenge the authority of the sitting Governor to make the appointment. They did not because the appointment is legal.
The US Senate cannot arbitrarily refuse to seat a member who meets all the prerequisites and requirements set forth by the US constitution, including the 17th amendment. The US Senates rules and traditions are not above the law.
Mr. Burris is the Senator.
January 10, 2009 9:49 PM | Reply | Permalink