Burris v. White ( 2009 )

Docket No. 107816.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
ROLAND W. BURRIS et al., Petitioners, v. JESSE WHITE,
Secretary of State, Respondent.
Opinion filed January 9, 2009.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,
Garman and Burke concurred in the judgment and opinion.
OPINION
The issue presented by this original action for 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. 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 of mandamus is
denied.
Background
Following the November 4, 2008, general election, a majority of
the members of the Electoral College voted in favor of Barack H.
Obama for the office of President of the United States. See U.S.
Const., amend. XII. At the time of the general election, President-
elect Obama was the junior United States Senator from Illinois. In
anticipation of assuming the Presidency, President-elect Obama
resigned his Senate seat, leaving that post vacant.
The seventeenth amendment to the United States Constitution
provides that
“[w]hen vacancies happen in the representation of any
State in the Senate, the executive authority of such State shall
issue writs of election to fill such vacancies: Provided, That
the legislature of any State may empower the executive
thereof to make temporary appointment until the people fill
the vacancies by election as the legislature may direct.” U.S.
Const., amend. XVII.
Pursuant to the power conferred on it by this amendment, the
Illinois General Assembly empowered its executive, i.e., the
Governor, to make temporary appointments for the office of United
States Senator. It has done so through enactment of section 25–8 of
the Election Code (10 ILCS 5/25–8 (West 2006)). That statute
provides that “[w]hen a vacancy shall occur in the office of United
States Senator from this state, the Governor shall make temporary
appointment to fill such vacancy until the next election of
representatives in Congress.” 10 ILCS 5/25–8 (West 2006).
In accordance with the authority conferred on him by section 25–8
(10 ILCS 5/25–8 (West 2006)), Rod R. Blagojevich, the Governor of
Illinois, appointed Roland Burris to temporarily fill the United States
Senate seat previously held by President-elect Obama. The Governor
made that appointment by letter dated December 30, 2008. The
following day, December 31, 2008, the Governor executed a
document entitled “certificate of appointment,” which was addressed
to the President of the Senate of the United States. In that document,
the Governor certified that he was appointing Mr. Burris to represent
Illinois in the United States Senate until the vacancy caused by
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President-elect Obama’s resignation “is filled by election as provided
by law.” The certificate was on a preprinted form and included, below
the Governor’s signature, a space for the signature of “Jesse White,
Secretary of State.” The space for the Secretary of State’s signature
was left blank.
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.
The Illinois Constitution sets forth the Secretary of State’s duties.
It provides that
“The Secretary of State shall maintain the official records
of the acts of the General Assembly and such official records
of the Executive Branch as provided by law. Such official
records shall be available for inspection by the public. He
shall keep the Great Seal of the State of Illinois and perform
other duties that may be prescribed by law.” Ill. Const. 1970,
art. V, §16.
Consistent with this provision, the General Assembly provided,
by law, that
“[i]t shall be the duty of the Secretary of State:
1. To countersign and affix the seal of state to all
commissions required by law to be issued by the Governor.
2. To make a register of all appointments by the Governor,
specifying the person appointed, the office conferred, the date
of the appointment, the date when bond or oath is taken and
the date filed. If [State] Senate confirmation is required, the
date of the confirmation shall be included in the register.” 15
ILCS 305/5 (West 2006).
These duties are set forth in section 5 of the Secretary of State Act (15
ILCS 305/5 (West 2006)). Section 5 includes additional provisions,
but none pertain to the present discussion.
On December 31, 2008, the same day the certificate of
appointment was signed by the Governor, the appointment was duly
registered by the Secretary of State’s office pursuant to section 5(2)
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of the Secretary of State Act (15 ILCS 35/5(2) (West 2006)). That
same day, the Secretary of State’s senior legal advisor sent a letter to
Mr. Burris’ attorneys confirming that the appointment had been
registered. The letter directly tracked the language used in section
5(2) and specifically cited to that provision. There is no dispute that
the Secretary of State did not also sign and affix the state seal to the
Governor’s certificate of appointment or his appointment letter dated
December 30, 2008.
On January 2, 2009, Mr. Burris, joined by two registered voters
(hereinafter Petitioners), filed a motion pursuant to Supreme Court
Rule 381(a) (188 Ill. 2d R. 381(a)) seeking leave to file a complaint
for mandamus in our court. The motion invoked our original
jurisdiction under article VI, section 4(a), of the Illinois Constitution
of 1970 (Ill. Const. 1970, art. VI, §4(a)) and sought an order
compelling the Secretary of State to countersign and affix the seal of
the state to his appointment papers under section 5(1) of the Secretary
of State Act (15 ILCS 305/5(1) (West 2006)). In a separate motion to
“accelerate consideration of their motion for leave to file a complaint
for writ of mandamus and to accelerate consideration of [their]
complaint for writ of mandamus,” Mr. Burris and the other two
Petitioners alleged that prompt resolution of the matter is required
because without the Secretary of State’s signature and the seal of the
State, his appointment would not be recognized by the United States
Senate, and the people of the State of Illinois would not be fully
represented in the Senate when the new United States Congress
convened on January 6, 2009.
In a supplemental memorandum which we allowed Mr. Burris to
file, he advised the court that on January 5, 2009, the chief of staff to
the Governor hand-delivered Mr. Burris’ certificate of appointment
to the secretary of the United States Senate. While the secretary
retained the certificate, she declined to enter it into the Senate’s
certificate book. The following day, when the Senate convened, Mr.
Burris appeared at the Capitol Building to be sworn in as a United
States Senator. He was not permitted to do so and was barred from
the Senate floor on the grounds the Secretary of State had not
countersigned or affixed the state seal to Mr. Burris’ appointment
papers.
Pursuant to the rules of this court, the Secretary of State had until
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January 7, 2009, to respond to Petitioners’ motions. The Secretary of
State filed a timely response, and by separate order, we granted
Petitioners’ request for accelerated consideration of the motion for
leave to file a complaint for writ of mandamus. We also allowed
Petitioners’ request for accelerated consideration of the mandamus
complaint itself. Because resolution of this case turns on questions of
law which the parties have carefully examined and forcefully argued
in the materials already submitted to us, additional argument is
unnecessary. The numerous memoranda of law submitted by the
parties’ shall stand as their briefs, and we shall proceed to the merits
without oral argument.
Analysis
Mandamus is an extraordinary remedy to enforce, as a matter of
right, “the performance of official duties by a public officer where no
exercise of discretion on his part is involved.” Noyola v. Board of
Education, 179 Ill. 2d 121, 133 (1997), quoting Madden v. Cronson,
114 Ill. 2d 504, 514 (1986). To be entitled to a writ of mandamus, a
party must establish a clear right to relief, a clear duty of the public
official to act, and a clear authority in the public official to comply
with the writ. People ex rel. Madigan v. Snyder, 208 Ill. 2d 457, 465
(2004). We agree with the Secretary of State that Petitioners in this
case cannot satisfy that burden.
Petitioners’ claim is predicated on the Secretary of State’s failure
to countersign and affix the state seal to the documents appointing
Mr. Burris to the Senate. According to Petitioners, the Secretary owes
such a duty under section 5(1) of the Secretary of State Act (15 ILCS
305/5(1) (West 2006)). Under the express terms of that statute,
however, the duty to sign and affix the state seal only pertains to
“commissions required by law to be issued by the governor.” There
are situations in Illinois law where officer holders are specifically
required to obtain gubernatorial “commissions.” These include county
clerks (55 ILCS 5/2–2006 West 2006)), members of the boards of
county commissions (55 ILCS 5/2–4001 (West 2006)), coroners (55
ILCS 5/3–3001 (West 2006)), sheriffs (55 ILCS 5/3–6001 (West
2006)), clerks of the courts (705 ILCS 105/3 (West 2006)), and
commissioned officers in the Illinois State Guard (20 ILCS 1805/37
(West 2006)). No provision of Illinois law, however, requires a
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commission to be issued by the Governor in case of appointments to
fill vacancies to the United States Senate.
The relationship between “commissions” and the Governor’s
appointment powers was considered in an Attorney General opinion
issued in 1978 at then Governor Thompson’s request. The opinion
states:
“To constitute an appointment to office, there must be
some open, unequivocal act of appointment on the part of the
appointing authority empowered to make it. (Molnar v. City
of Aurora (1976), 38 Ill. App. 3d 580, 583; 63 Am. Jur. 2d
Public Officers and Employees §99.) An appointment to
office is made and is complete when the last act required of
the appointing authority vested with the appointing power has
been performed. People v. Lower (1911), 251 Ill. 527, 529.
***
While the appointment of an officer is usually evidenced
by a commission, it is not essential to the validity of the
appointment that a commission be issued to the officer.
(Fekete v. City of East St. Louis (1924), 315 Ill. 58, 60.) The
commission is not the appointment; it is merely the written
evidence of the appointment. (63 Am. Jur. 2d Public Officers
and Employees §114.) Where the issuance of a commission
is not made by law a necessary part of the appointment, the
appointment is complete when the appointing officer makes
his choice. 67 C.J.S. Officers §36.” 1978 Ill. Att’y Gen. Op.
138, 139.
While Attorney General opinions are not binding on the courts, a
well-reasoned opinion of the Attorney General is entitled to
considerable weight, especially in a matter of first impression in
Illinois. Bonaguro v. County Officers Electoral Board, 158 Ill. 2d
391, 399 (1994). We think this opinion, grounded as it is on
precedent from our own court, is entitled to such weight and
accurately characterizes Illinois law.
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
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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.
Our research has disclosed but one reported decision pertaining
to refusal by the Secretary of State to countersign and affix the seal
to a commission for a gubernatorial appointment. It is People ex rel.
Ewign v. Forquer, 1 Ill. 104 (1825). That case involved the
Governor’s attempt to make an appointment to the post of paymaster-
general in the state militia. Mandamus was ultimately denied for
reasons unrelated to the questions before us today, and nothing in the
court’s decision is in any way inconsistent with the analysis we have
just set forth. Although the opinion does not give a useful citation to
the governing statute, the law in question was a precursor to the
Military Code of Illinois (20 ILCS 1805/1 et seq. (West 2006)), and
while the current Code no longer addresses the specific post of
paymaster-general, that post would have fallen within the category of
positions for which gubernatorial commissions are, in fact, required.
For the reasons just explained, a United States Senate vacancy is not
such a position.
The suggestion has been made that the General Assembly
intended the term “commission” to be used in a more general sense
to encompass any appointments by the Governor. Historical analysis
of Illinois law will not support such a construction. The “sign and
seal” duty contained in section 5 of the Secretary of State Act has
antecedents in earlier statutes. For example, a version of the law was
in effect in 1874, and it also contained a “sign and seal” duty for
commissions. Significantly, however, it differed from the current law
in that the registration requirement, now set forth in subsection (2) of
section 5, was also directed specifically to commissions. That is no
longer the case. Public Act 86–398 amended the statute in 1989.
Present law clearly differentiates between “commissions” under
subsection (1) of section 5 and the more general “appointments”
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contained in subsection (2) of section 5. Under established rules of
statutory construction, we must assume that the General Assembly
made that distinction for a reason, and the reason is apparent: under
present law, commissions are no longer necessary in every case to
make a gubernatorial appointment valid. Where commissions are
required by law, the “sign and seal” duty applies. Where, as here, no
commission is required, there is only a duty to register the
appointment.
As noted in the Attorney General opinion cited above, the only
purpose a signature and seal could serve in this case is an evidentiary
one. It would confirm that the appointment had, in fact, been made.
At this point, however, there is no question at all that the Governor
did, in fact, make the appointment. If there was ever any question
about that on the part of the United States Senate, it should have been
removed when the Governor’s envoy appeared at the Senate with a
copy of the certificate of appointment in hand.
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 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.
Petitioners argue, in the alternative, that the Secretary of State had
a mandatory duty under certain acts of Congress to sign and affix the
seal of this state to Mr. Burris’ appointment as Senator. This
argument is wholly without merit. The provisions invoked by
Petitioners, 2 U.S.C. sections 1a and 1b, apply, by their terms, to
situations where a vacancy is filled by election. The situation here
involves the filling of a vacancy through appointment.
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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
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).
Conclusion
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.
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Writ denied.
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