010709 Madig An White Motion

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No. 107816

IN THE SUPREME COURT OF ILLINOIS ROLAND W. BURRIS, LAWRENCE A. PERLMAN, and .JOHN RUFF, Petitioners, v. JESSE WHITE, in his official capacity as ILLINOIS SECRETARY OF STATE,

) ) ) ) ) ) ) ) ) ) )

. . .. ........

On Motion for Leave to File Original Action in Mandamus.

RESPONDENT JESSE WHITE'S OBJECTION TO PETITIONERS' MOTION FOR LEAVE TO FILE A COMPLAINT FOR WRIT OF MANDAMUS

Respondent Jesse White, in his official capacity as Illinois Secretary of State (Secretary), by and through his Httorney, Lisa Madigan, Attorney

General of Illinois, hereby objects to the motion for leave to file a mandamus complaint filed by petitioners Roland V'l.Burris (Burris), Lawrence A. Perlman, and John Ruff. I. Introduction This Court should deny the petitioners'

original mandamus

complaint requesting

motion

for leave to file a.n

an order requiring

the Secretary to

countersign the Certificate of Appointment of petitioner Burris to the United States Senate.

The Secretary has performed all of his legal duties regarding

the Burris appointment.

This Court cannot compel the U.S. Senate to seat

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petitioner Burris, but nothing remains to be done by the SecretCJryto complete the appointment. process and to enable the U.S. Senate to Reat Burris. Accordingly, the petitioners are not entitled to seek mandamus relief. II. Factual Background 1. On December 9,2008, Governor Rod Blagojevich was arrested and a federal criminal complaint was filed against him by U.S. Attorney Patrick Fitzgerald. 2. The complaint alleges that, among other p\.lrported conduct,

Governor Blagojevich tried to sell the appointment to the U.S. Senate seat vacated by President.Elect Barack Obama. 3. .On December 17, 2008, Ed Genson, attorney for Goverrmr Blagojevich, stated that the Governor would not make an appointment

to fill

the vacant U.S. Senate seat. 4. On December 24, 2008, U.S. Congressman

Danny Davis was

contacted about the U.S. Senate appointment by Sam Adam, Sr.,who indicated that the Governor was interested

in appointJug Davis to the seat.

Monica Davey & Rachel Swarns, T()ugh Calcu,llJ,sfor Blagojevich on Senate Sea.t, N}~wYORKTIMES, January 5. Congressman appointment

1,2009.

Davis iIldica.ted that he was not interested

on December 26, 2008. Davey & Swarns, supra.

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6. On December 26, 2008, Sam Adam, Jr., contacted petitioner

Burris

to inquire whether he was int.erested in the U.S. Senate appointment.

(Burris

Affidavit at ~~13.5) (Attached as Exhihit 1).

7. On December 28,2008, petitioner Burris informed the Governor that he would accept the appointmcnt. (Burris Affidavit at ~~ 6-9). 8. On December ~~O,2008, Governor Blagojevich held a news conference announcing hi!; appointment

of petitioner Burris to fill the U.S.

Senate vacancy.

9. On December 30, 2008, Governor Blagojevich signed a "Letter of Appointment"

stating that he intended to appoint petitioner

U.S. Senate seat. val~ated by President-Elect

Barack Obama.

Burris to the (Proposed

Complaint at ~ 11, Ex. A at 1). 10. On December 31, 2008, the Secretary made a register of Governor Bla.gojevich's appointment to the Secretary's

statutory

of petitioner Burris to the U.S. Senate, pursuant duty to make 1:1register of gubernatorial

appointments, 15 lLCS 305/5(2) (2006). (Pet. Motion to Accelerate at ~ 5, Ex. A). 1L On December 31, 2008, Governor Blagojevich, using a suggested U.S. Senate form, signed a Certificate of Appointment

addressed to the

Pl'Csident of the Senate stating that he was appointing petitioner Burris to the vacant U.S. Senate seat. (Proposed Complaint at ~ 11, Ex. A at 2).

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12. Having already made a register of the appointment Illinois law, the Secretary has refused to countersign

as required by

and affix the state seal

to the U.S. Senate's recommended Certificate of Appointment. See (Proposed Complaint at ~ 18). 13. Because Governor Blagojevich has been arrested and charged with trying to sell the U.S. Senate appointment,

the Secretary believes that it

would be a violation of his ethical obligations to the people of Illinois to lend his name and the state seal to further this effort by the Governor. 14. The petitioners filed their motion for leave to file an original mandamus action on December 31,2008. 15. The I)etitioners request an order requiring the Secretary "to certify

Governor Blagojevich's appointment of Mr. Burris to the office of United States Senator from the State of rJlinois and to do all other acts required to confirm such appointment." 16. The petitioners, appointment

(Proposed Complaint at p. G). however, also allege that Governor lllagojevich's

of petitioner Burris to the Senate was "effective immecliately

and there is no need for further confirmation by any other official from the State of Illinois, including but not limited to, Secretary White," (Proposed

Complaint at ~ 14). III. Argument 17. This Court should deny the petitioners'

motion for leave to file an

original complaint for mandamu8 because the petitioner!; do not and. cannot -4-

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<.lllegea deaT entitlement

to the relief that they request, that the Secretary

failed to perform any duty required by law, or that the petitioners

have no

other available remedy. A.

Requirements

18. 1'he petitioners'

of a mandamus

motion should be denied because they do not and

cannot allege () clear entitlement extraordina.ry

remedy traditionally

a purely mini8terial

action.

to the relief they seek. "Mandamus iRan used to compel a public official to perform

duty." People ex rel. Ryan v. Roe, 201 IlL 2d 552, 555

(2001). An order of mandc:Jmw; nUty issue only where the party seeking relief has established

(1) a clear, affirmative right to relief; (2) a clear duty in the

public official to act; (3) a clear authority in the public official to comply with the order; and (4) the lack of other remedie1;. Holly v. Montes, 231 Ill. 2d 153, 159 (2008); People ex rel. Devine v. Stralka., 226 Ill. 2d 445, 449 (2007). The petitioners

bear the burden of establishing

a clear right. to the mandamus

relief they seek, Holly, 231 Ill. 2d at 159; 1350 La,he Shore Assoc.5. I). Heale,Y, 223 Ill. 2d 607,628 (2006), and to plead a mandamus

action properly, the

petitioners

must allege facts sufficient to establish f.!1-,lch of the above

elements.

Noyola lI. Bd. of Educ. of City of Chicago, 179 Ill. 2d 121, 133

(u~~n). The petitioners cannot satisfy these elements here.

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B.

The petitioners seek to (:ompel the Secretary to perfornl an act that he has no legal duty to perform.

19. The Illinois Election Code specifies the process to fill a U.s. Senate vacancy in Illinois.

10 ILCS 5/25-8 (2006). That statute provides that the

Governor "shall make temporary appointment" not require the Secretary to undertake appointment..

[d. This statute,

against the Secretary.

to fill the vacancy, and it does

any action to effectuate the Governor's

then, cannot be the basis for mandamus

.

20. Additionally,

the Secretary has performed all of his legal duties

under the Secretary of State Act (Act). Section 5(2) of the Act applies to gubernatorial appointments, including the Burris appointment, and requires the Secretary to "make a register of all appointments by the Governor." 15 ILCS 305/5(2) (2006). There is no dispute in this case that the Secretflry immediately

registered the appointment.

(Pet. Motion to Accelerate at

"

5,

Ex. A). By doing so, he performed all of his legal duties under the Act. Significantly, the registration requirement does ~ot require the SecT.et.cuyto countersign or affix the state seal to any document. 21. The petitioners

15 ILCS 305/5(2) (2006).

purport to base their mandamus

claim on section

5(1) of the Act, 15 ILCS 305/5(1) (200m, which requires the Secretary to

"countersign and affix the seal of state to all cornrnissioT~S required by law to be issued by the Governor."

(Proposed Complaint at ,11[14, 19-20) (emphasis

added). They contend that under this provisicm they have a clear right to -6-

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have the Secretary countersign and affix the stat.e seal to the Certificate of Appointment, that the Secretary has a clear duty to countersign and afflXthe .state seal to the Certifieate, and that the Secretary ha.s clear authority

to

countersign and afflXthe state sea) t.othe Certificate. (Proposed Complaint

at ~ 20). 22. But it is section 5(2) that pertains to gubernatorial appointments like this one, and the Secretary has fully complied with this section by making a register o(pebtioner

Burris's appointment.

nothing to do with "appointments."

Section 5(1) has

Rather, it requires the Secretary to

countersign and affix the state sea) to "com.missions required by law to be issued by the Governor."

15 ILCS 305/5(1) (2006) (empha~is added). This

provision unambiguously

requires an underlying legal obligation on the

Govermir to issue a commission.

Thus, the Secretary's

legal duty under

sect.ion 5(1) is triggered only wher:e he is presented with a commission that the Governor was required by law to issue. 28. Indeed, the General Assembly reserves the need for "commissions" to rare, specjfically designated

circumstances.

For instance, the members of

the boards of county commissioners "shall be commissioned hy the governor," 55 ILCS 5/2-4001 (2006), "[c]ounty clerks shall be commissioned by t.he governor," 55 ILCS 5/3-2006 (2006), "[e]very sheriff shall be commissioned by the Governor," 55 ILCS 5/3-6001 (2006), and the clerks of courts "shall be

commissioned by the governor," 705 JLCS 10013(2006). In those cases, the -7-

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commissions are specifically "required by law to be issued by the Governor," and, in turn, the Secretary must count.ersign and affix the state seal under section 5(1) of the Act. 15 ILCS 305/5(1) (2006).

24. There is no legal requiremellt for a U.S. Senate appointee to be commissioned by the Governor

- as opposed to appointed,

a distinct legal

concept - and the Secretary's duty under section 5(1) therefore is different and not impli<;ated in this situation. a gubernatorial

Put simply, Illinois law does not require

commission for the appointment. of a U.S. Senator.

Only a

guhernatorial appointment is required. 10 ILCS 5/25-8 (2006). 25. In their motion to accelerate consideration of this case, the petitioners

rely on section 5 of the Act as a whole as authority for ordering

the Secretary to undertake action. (pet. Motion to Accelerate at'

5). But

none of the other duties imposed on the Secretary by section 5 support'the petitioners' mandamus claim, either. The only other section that could possibly apply is section f>(8),which requires the Secretary to "perform such other duhes as may be required by law," 15 ILCS 305/5(8) (2006). But the

petitioners have not identified any law requiring the Secretary to perform the duties they seek to compel because there is none. 26', Nor, finally, do the Standing Rules of the United Stab~s Senate impose a legal duty on the Secretary to countersign

and affiz the state seal to

the Certificate of Appointment. U.S. Senate Standing Rule II (Rule II) (attached hereto as Exhibit 2) governs the presentation of credentials of -8-

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Senate Appointees. Under Rule II, the Secretary of the U.S. Senate shall send copies of a "recommended" form for the appointment

of a U.S. Senc}(:orto

the Governor and Secretary of State, and the Certificate of Appointment presented by Governor Blagojevich for the Burris appointmcnt follows the recommended form. (Compare Proposed Complaint, Ex. A at 2 with Ex. 2 hereto). But Rule II is explieit that thc appointing Governor and the Secretary of St.ate "may use such formO" only "if they see fit" to do so. It is not required.

27. Indeed, nothing in Rule II imposes a legal duty on the Secretary. The form of the presentation

of the Senate Appointee's credcntials

that Rule II expressly leaves to the discretion of the appointing

is a matter

State officials

and cannot be the basis of mandamus against the Secretary. Where Congress intends a Statc's secretary of st.ate to playa formal role in the seat.ing of a U.S. Senator, it does so explicitly and in law. Compare 2 D.S.C. §§ 1«(1),(b) (where U.S. Senator is elected, State must certify election under

state seal, and certification of election "shall be countersigned by the seeretary of ~tate ofthc State"). 28. The p(~t.it.ionersdo not and cannot identify any legal source of the supposed duty they seek to enforc~. It is the petitioners'

burden to establish

their clear right t.ohave the Secretary countersign and affix the state seal to the Certificate of Appointment,

see Healey, 223 Ill. 2d at 628, and their

failure (;0identify a legal rcquirement

that the Secretary do so dooms their -9-

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mandamus

action. The proposed complaint is thus legally and factually

inadequate,

and the motion to file the complaint. shoulcl he !ienied.

29. Nor can petitioners

satisfy the separate

requirement

for a

mandamus action that they have no other adequate remedy. See Stralka, 226 Ill. 2d at. 449. The Secret;ary has performed all of hiB legal duties and the ultimate d.etermjnation

whether (:0seat petitioner

Burris lies with the U.S.

Senate. That, too, is where the petitioners' remedy lies. WHEREFORE, Respondent Je~8e White, as Secretary of State of Illinois, respectfully requests that ~his Court deny the petitioners'

motion for

leave to file an original f1(~tionin mandamus. Respectfully submitted,

LISA MADIGAN Attorney General State of 11" BY:

GNER Assi~tant Attorney General 100 West Randolph St. 12th Floor Chicago, Illinois 60601 (312) 814-2146

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STATE OF ILLINOIS COUNTY OF COOK AFFIDAVITOF ROLANDW. BURRIS I: ROLAND W. BURRIS, being .firstswom on oath, depose and.state that the fo1lowingjs true to the best of myknowledgeand recoJlectjon:

1.

Iam the Senator~.DesIgnate.forthe State of Illinois.

2.

I am a resident of the .Sta1eof IfllnoisJat feast 30 years of age and a na.turaibom citiz~n of the United States of America.

3.

On Friday, December 26, 2008. 1 received a telephone call from Sam Adams. Jr., (ItMr.Adams, J ~)an aUomeyemployed byRod B(agojevioh.the Governorof the State of Illinois (uGovernorBlagojevicha).

4.

Duringme December 26. 2008 telephoneconversation withMr.Adams,Jr., he asked if he could corns to my residence ro discuss a matter witb me and I

.agregd. 5.

At my residence Mr. Adams Jr. asked if J had an interest in accepting Gove.morBlagojevich's appointmentto fm the Senate se.at.1eftvacant by President-EJect Barack Obama. I responded to Mr. Adams, Jr. that Ineeded a ca~pIe of days to confer Withfriends and familyand that Jwouldinformhim of my decision withina couple of days.

6.

On Sunday, Oecember 28, 20081Mr.Adams Jr. contacted me by telephone and then visited me at myhome to ask me ifI had reached a decisi!:JnWith resp~ct to.accepting or rejectingGovernor Blagojevich'&appointmantto.the United States Sena.te.

7.

Itold Mr. Ada.ms Jr. that, should G9ve"rnorBlagojevich offer the appointment to the UnIted States Senate, Iwouldaccept.

8.

On. Sunday~ December 28T20081 at approximately 4:00 p.m., Govemor .Slagojav.ich personally contacted me by telephone, praised my public service record and offered to appoint me to the United States Senate 10 fin the Senate

9.

seat Jeft vacant by President-Elect Barack Obama.

Duril1g 1he December 28, 2008 telephone conversation with Governor Blagojavlch,

w; t,

I formally accepted EXHIBIT

I

the appointment

to the United

States

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Govemol' Btagojevicn then lnd~cated that he would formally

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The telephQne call then

ended.

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record,'hisoff~rand myaccep~nca ofthe appointmentto the Unlfed States Senate, and the discussion ~th~ future press conference to announce my appointment. Governor Blagojevichand I discusse.d no oth~r topics or subject matter during the December 28, 2008 telephone conversatIon.

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Other than greetings. Governor BJagojevichpraising my public service

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Prior to 1he December 26, 2008 telephone call from Mr.Adams. Jr., there was not any contact between myseif or any of my rep~el1tatives with Governor BJagojevlch or any of his. representaUves regarding my appointment to the United States Senate.

FURTHER AFFIANTSAYETH NAUGHT. ..,...

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ROLANDW. BURRIS Senate..Designate for t.he State of Illinois

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II

Standing Rules of the Senate

RULEII PRESENTATIONOF CREDENTIALSANDQUESTIONSOF PRIVILEGE J. The prescJ\tatiun of the credentials of Seniltors elect or of Senators dttSigMte and other questions of privilege shall always be in ordel', except during the reading and CQrrection of the Journal, wl'ile 13Qucstion or order Or /I rnotion to adjourn is pending, or while tJ;e Senate is voting or "sce.tbhling tile presenc!:: of a quorum; anc! all que::;tions Clndmotions ilrIS;,)Oor made upon the pre~el'\tation of SuChcredentiClf!>shall be proceeded with lIl)til disposed of. 2. The Secretary shilll keeo a record Of the certificate$ of eler.tior! ilnd certifiCiltes of appoinlment Q( SenatorS by entering in a wellbound booK Kept for that purpo!;e the date of the election Or appoinlment. the name of the person elected or appointed, the date of the certIficate, me name of the governor and the secretClry of state signing and countersigning the s(lme. and tile State from which such Senator is elected r)r apOOinted. 3. The Secretary of the Senate shall send copie$ of the fOIlOWi,,!)recommended forms to lhe governor and secretary of state of each State wherein an election is about to take place or an OIPpoil1tment is to be made so t"bt they "'2JV use Such forms if they see fit. THE RECOMMENDED

FORMS

FOR CeRTIFICATE

OF ELECTION

AND CERTIFICATE

OF APPOINTMENT

ARE AS FOLLOWS:

CERTIFICATE OF ELECTION FOR SIXYEAR TeRM To the President of the Se:nate of the: United States:

_

_

This is to certify that on the day of -,19--, A- 6_ W2JSduly choSC,nby the qualified electors of the State of a Senator from said Slale to represent said State in the Seflate (If the U,'lted St2Jtes for ~hc tcrr:1 or ~ix yearS, uegirming on the 3d dilYof January. 19__ Witness:

Mis excellency

our governor

and our seal hereto

.;Iffixed ilt

_

thIs

_

day of __. in the year of our Lord 19,

,

By the governor:

C_D_. Governor.

E_F_. Sccretllry of State. CERTIFICATe Of ELECTION FOR UNEXPIRED

TERM

To the

Stlltes;

President

of the

Senilte

of the

United

_

This is to certify that on the day of _. 19_. A_ B_._,was duly chosen by the qualified electors of the State of '._n a Sl:rtlltor for the unexpired term ending at noon on tl'le 3d day of J~nLlilry. 19_, to fill the: vec&,)Cy in the rcprcse:ntation from s.;Iid State if'l the Senale of the United States ciOused by the of C__ 1>_. WitneSs: His excellency

our gQvernor -'

_

"no O!,lrseal hereto (lffixed at

By the governor:

E._ F..,., Governor.

G_ H~_, secretary of Sl:!Ite.

EXHIBit 1.

_

this

_

d3Y of

--' in tin:

year of our Lord 19_~..

JAN-07-2009

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11

Cf.R.TlflCATE OF APPOINTMENT To the Pre~ic1ent of the Senate

of the

United

States;

This is to certify that, pursuant to the power vE:sted in me by the Constitution of the United States and the laws of the State of I, A_ B_. the governor of S(!ic!Stelte. eto hereby appoint C_ D_ " SeMtOr frorn ~lIid Stllte to represent ~aid Stilte. In tile SCnI!te of the United StCltes until the vaCiinty therein c(!usec! by t.he _ of E_ F-' '5 filled by election as provided by law.

_,

Witness:

His e)(C~lIenCY Ollr goveroor

_. and our scar hereto (Jffixed at _._

this.,.

day of

' in the ye~r of our Lord]

9_.

By the governor:

G_H_. GOvernor. !.,._. J,,_., Secretary

of State.

- . - .- - ~. ~.