09 January 2009

roland w burris v jesse white

click here to download ten page .pdf [70 kb]

apparently, what happened was that the governor's office used a form letter from the u.s. senate which, if required by state law, contained a place for a secretary of state signature.
The form used by the Governor was apparently based on "recommended forms" contained in Rule II of the Standing Rules of the United States Senate. As their name indicates, these forms are merely recommended. State officials are not required to adopt them, but "they may use [them] if they see fit." Standing Rule II, United States Senate, Committee on Rule & Administration.
all illinois law requires the secretary of state to do is to register the appointment, which he did on 31 december 2008.
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.
so actually the fault here lies with illinois sec'y of state jesse white, for the waste of taxpayer money in litigating this case, not to mention all the nation-wide drama that ensued for not pointing out that he wasnt required to sign the document in the first place.
Because the Secretary of State had no duty under section 5(1) of the Secretary of State Act (15 ILCS 305/5(1) (West 2006)) to sign and affix the state seal to the document issued by the Governor appointing Roland Burris to the United States Senate, Petitioners are not entitled to an order from this court requiring the Secretary to perform those Acts.

Under the Secretary of State Act, the Secretary’s sole responsibility was to register the appointment (15 ILCS 305/5(2)(West 2006)), which he did. No further action is required by the Secretary of State or any other official to make the Governor’s appointment of Roland Burris to the United States Senate valid under Illinois law.

Moreover, to the extent that additional proof of the validity of the appointment is necessary, Illinois law provides a mechanism for obtaining it without the need for judicial intervention.

For the foregoing reasons, petitioners’ request for issuance of a writ of mandamus is denied. Mandate to issue forthwith.
UPDATE: roland burris sworn into the united states senate, thursday, 15 january 2009 - video