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Secretary of State has no duty to sign and affix the state seal to certificate of appointment.

Burris v White, No. 107816, 2009 WL 51026 (III Sup Ct)

On January 9, 2009, the Illinois Supreme Court denied an original action for mandamus holding "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 the appointment valid."

President Barack Obama was elected to office while serving a term as the junior United States Senator from Illinois. In anticipation of assuming the Presidency, President Obama resigned his senate seat. Acting pursuant to the power conferred upon it by the seventeenth amendment to the United States Constitution, the Illinois General Assembly empowered its executive, Governor Rod R. Blagojevich, to make a temporary appointment to fill the vacant Senate seat. It had given the governor this power through enactment of Section 25-8 of the Election Code (10 ILCS 5/25-8).

On December 30, 2008, Governor Blagojevich appointed Roland Burris to temporarily fill the United States Senate seat vacated by President Obama. The next day, Governor Blagojevich executed a document titled "certificate of appointment," in which he certified that he was appointing Mr. Burris to temporarily represent Illinois in the United States Senate. The certificate form included a space for the signature of "Jesse White, Secretary of State," which was left blank. The document was sent to the President of the Senate of the United States.

On the same day that the "certificate of appointment" was signed by Governor Blagojevich, the secretary of state's office duly registered the appointment pursuant to section 5(2) of the Secretary of State Act. However, the secretary of state, Jesse White, did not sign and affix the state seal to the governor's "certificate of appointment" or the appointment letter dated December 30, 2008.

On January 2, 2009, Mr. Burris filed a motion pursuant to Supreme Court Rule 381(a) seeking leave to file a complaint for mandamus in the Illinois Supreme Court. The motion invoked the Illinois Supreme Court's original jurisdiction and sought an order compelling the secretary of state to countersign and affix the seal of the state to Mr. Burris' appointment papers. On January 6, 2009, when the Senate convened, Mr. Burris was barred from the Senate floor and not sworn in as a United States Senator on grounds that the secretary of state had not countersigned or affixed the state seal to his appointment papers. The issue presented to the Illinois Supreme Court was whether the secretary of state was required to sign and affix the seal of the state to the document issued by the governor certifying the appointment of Roland Burris to the United States Senate.

The Illinois Supreme Court found that under the Secretary of State Act , the secretary of state only has the duty to sign and affix the state seal to "commissions" required by law to be issued by the governor. Furthermore, the court found that under Illinois law only certain situations require office holders to obtain gubernatorial "commissions." Based on this determination, the Illinois Supreme Court held that "[b]ecause 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." Furthermore, the court held that since the secretary of state's signature and seal is only required in cases where "commissions" are required by law, Jesse White had no duty to sign and seal Mr. Burris' "certificate of appointment." Consequently, the court held that the sole duty of the secretary of state was to register the appointment of Mr. Burris, which he had already done. For these reasons, the Illinois Supreme Court denied Mr. Burris' request for issuance of a writ of mandamus.
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Publication:Illinois Bar Journal
Date:Mar 1, 2009
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