JAN-07-2009 17:32 SC CLERK'S OFFICE CHGO 1"'.~O:::/14

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No. 107816 : . .. .. .' ~". ~j... . . - ,

IN THESUPREME COURT OF ILLINOIS

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)))))))))))

JESSE WHITE in his official capacity as )THE ILLINOIS SECRETARY )OF STATE, )

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ROLANDW. BURRIS,LAWRENCEA. PERLMANand JOHN RUFF,

Petitioners,

v.

Respondent.

PETITIONERS' MOTION FOR LEAVE TO FILEA REPLY TO RESPONDENT JESSIE WHITE'S OBJECTION TO

PETITIONERS' MOTION FOR LEAVE TO FILEA COMPLAINT FOR WRIT OF MANDAMUS

NOW COME Roland W. Bums, Lawrence A. Perlman and John Ruff,

(hereinafter"Petitioners")by and through their attorneys,the law firm of Gonzalez,

Saggio and Harlan, L.L.C. and pursuant to lllinois Supreme Court Rule 381 move this

Court for Leave to File a Reply to "Respondent Jessie White's Objection To Petitioner's

Motion For Leave To File a Complaint for Writ of Mandamus" ("Objection"). In support

of their Motion, Petitioners state as follows:

1. On December 31, 2008, Petitioners filed with this Court their Motion for

Leave to File a Complaint for Writ of Mandamus. FILEDJAN -7 2009

SUPREME COURT CLERK

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JAN-07-2009 17:32 SC CLERK'S OFFICE CHGO

2. The Respondent,Jesse White, in his official capacity as the Illinois

Secretary of State (hereinafter uRespondent"), was served with the Petitioners' MoljolJ

for Leave to File a Complaint for Writ of Mandamus via hand-delivery on December 31,

2008.

3. OnJanuary7,2009,RespondentfiledtheObjection.

4. The Objection raises several points of law which Petitioners believe are

insufficient basis for the Objection. Petitioners desire to advise this Court of the specifics

of such insufficiency. Therefore, Petitioners request leave to file the attached Petitioners'

Reply to Respondent Jessie White's Objection to Petitioner's m.otionfor Leave to File A

Complaint for Writ of Mandamu.~.

WHEREFORE, in view of the foregoing, Petitioners request that this Court grant

Petitioners' Motion for Leave to HIe a RepJyTo Respondent Jessie White's Obje;ction.

Dated this~day of January, 2009.

GONZALEZ. SAGGJO AND HARLAN,L.L.C.Atlome,'h

GONZALEZ, SAGGIO AND HARLAN, L.L.C.3S East Wacker Drive, Suite 500Chicago, Illinois 60601312-566-0040

JAN-07-2009 17:32 SC CLERK'S OFFICE CHGO P.04/14

No. 107816

IN THESUPREMECOURTOF ILLINOIS

)))))))))))

JESSE WHITE in his official capacity as )THE ILLINOIS SECRETARY )OF STATE, )

))))

ROLANDW. BURRIS,LAWRENCEA. PERLMANand JOHN RUFF,

Petitioners,

v.

Respondent.

PETITIONERS' REPLY TO RESPONDENTJESSIE WHITE'S OBJECTIONTO PETITIONERS' MOTION FOR LEAVETO FILE

A COMPLAINTFOR WRIT OF MANDAMUS

NOW COME Roland W. Burris, Lawrence A. Perlman and John Ruff (hereinafter

"Petjtioners"), by and through their attorneys, the law firm of Gonzalez, Saggio and

Harlan, L.L.C. and pursuant to Illinois Supreme Court Rule 381 files this Petitioners'

Reply To Respondent Jessie White's Objection To Petitioner's Motion For Leave To File

a Complaint for Writ of Mandamus ("Reply"). For their Reply, Petitioners state as

follows:

On December 31, 2008, Petitioners med with this Court their Motion for Leave to

File a Complaint for Writ of Manda",u.~_ The Respondent, Jesse White, in his official

capacity as the Illinois Secretary of State (hereinafter "Respondent"), was served with the

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Petitioners' Motion for Leave to File a Complajnt for Writ of Mandamus via hand~

delivery on December 31, 2008. On January 7, 2009, Respondent filed the Objection to

Petitioners' Motion for Leave to File a Complaint for Writ of Mandamus ("Objection").

Petitioners have asked this Court to accept jurisdiction over thejr Complaint for a

Writ of Mandamus ("Complaint") against Respondent. The Complaint requests that the

court compel the Secretary to comply with his duty under 15 ILCSS/30S to countersign

and to affix the state seal to the lllinois Governor's commission appointing Senator-

Designate Burris ("Mr. Burris") to the United States Senate. In his opposition,

Respondent takes the extraordinary position that he has fulfilled all statutory duties

relating to the appointment and that any action on his part is unnecessary.

The parties agree that the focllSof this action is 15 ILCSS '305/5 which states in

pertinent part:

It shall be the duty of the Secretary of State:

1. To countersign and affix the seal of state to all commissionsrequired by law to be issued by the Governor.

Respondent says that, "Simply put, Illinois law does not require a gubernatorial

commission for the appointment ofa U.S. Senator."} Unfortunately for the People of the

State of Illinois, the United States Senate disagrees and has refused to seat Mr. Bunis

because of the Secretary's failure to sign and seal the Governor's Certificate of

Appointment. Thus, mandamus is essential to ensure that Illinois has full representation

in the Senate.

Despite these high stakes, Respondent relies upon a p1ay on words to shirk his

statutory obligation, arguing that a "commission" has no bearing upon public

SCCl"clIIryof State' s memorandum in opposition at 8.

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appointments. The Secretary asserts that 15 ILCS 5/305 only requires him to countersign

and seal commissions that the Governor is required by law to issue. He contends that the

Governor's appointment of Mr. Bunis to assume President-Elect Obama's Senate seat

under 46 ILCS 81125does not require the issuance ofa commission.2

Respondent confuses the concepts of commissions and appointments. The United

States Supreme Court in Marbury v. Madison aptly explains the distinction-"A

commission is not necessary to the appointment of an officer by the executive. A

commissjon is only evidence of an appoinbnent.,,3 Thus, the Secretary of Senate has

construed this rule, Rule 2 of the Standing Rules of the Senate, to require a certificate of

appointment countersigned and sealed by the Secretary of State as a record of

gubernatorial appointments:

The Secretary shall keep a record of the certificates of election andcertificates of appointment of Senators by entering in a wcllbound bookkept for that purpose the date of the eJectionor appointment, the name ofthe person elected or appointed, the date of the certificate, the name of thegovernor and the secretary of state signing and counter-signing the same,and the State from which such Senator is elected or appointed.

Confronting the identical issue now facing this court, the Florida Supreme Court

in State ex rei. Fleming v. Crawford relied upon a statute similar to 15 ILCS5/305 to

issue ~ writ of mandamus ordering the secretary of state to countersign and seal the

246 ILCS 8d125;

Whcn a vacancy shall occur in the office of United States Senator from this state, tbeGovernor shan make t~orary appointment to f1l1such vacancy until the next election ofrepresentatives in Congress, at which time such vacancy shall be filled by election, and thcsenator so elected shan take office as soon thereafter as he shall receive his certificate ofelection.

3Marbllry", Madi$on, 1 Cranch 137, 5 U.S. 137, 138 (1803).

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Florida governor's appointmenl of a replacement senator.4 Thal court defined

"commission" this way:

What is a ·commission,, in the sense in which it is here used? It is writtenauthority or tetters patent issued or granted by the government to a personappointed to an office, or conferring public authority or jurisdiction uponhim. 5

Indeed, the Office of the Illinois Attorney General, Respondent's counsel in this

case, issued an opinion to Illinois Governor Jim Thompson explaining the interplay

between appointments and commissions:

[1]5the issuance of a commission by the Secretary of Slate a prerequisiteto the appointment of a person for office? * · * To constitute anappointment to office, there must be some open, unequivocal act ofappointment on the part of the appointing authority empowered to make it.(Molnar v. City of Aurora (1976), 38 m. App. 3d 580, 583; 63 Am. Jur.2d Public Officers and Employees § 99.) An appointment to office is madeand is complete when the last act required of the appointing authorityvested with the appointing power has been perfoImed. People v. Lower(1911), 251 Ill. 527, 529. * '" · While the appointment of an officer isusua1lyevidenced by a commission, it is not essential to the validity oftheappointment that a commission be issued to the officer. Fekete v. City ofEast St. Louis (1924), 315 m. 58, 60.) The commission is not theappointment; it is merely the written evidence of the appointment. (63Am. Jur. 2d Public Officers and Employees § 114.) Where the issuance ofa commission is not made by law a necessary part of the appointment, theappointment is complete when the appointing officer makes his choice. 67C.J.S. Officers § 36.6

Therefore, a "commission," as that word is used in 15 ILCS 55305, is any

document that the Illinois Governor issues in making his appointments. Obviously, the

Governor cannot simply pick up the telephone to call someone at the United States

Senate to communicate his appointments. Instead, the Governor reflected his appointment

through a certificate of appointment on a fOImprescribed by U.S. Senate Rule 2. Because

4Stale ex rei. Fleming \I. Crawford, 28 Fla. 441, lO So. 118 (1901).

Slate ex rei. Fleming, 28 Fla. At 493.

1978 Op. Any Gen. 111.138, 1978 DI. AG LEXIS 211.

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that certificate was "required by law to be issued by the Governor" under 46 lLCS 8/25,

the Respondent had a nondiscretionary duty to countersign and affix the state seal to it.

Not only does Respondent have an obligation to execute the Certificate of

Appointment under lllinois law, he also has an independent duty to do so under federal

law. Respondent's obligation to execute the Certificate of Appointment is finnly

established under federal law in 2 V.S.C. § la:

Election to be certified by governor. It shan be the duty of the executiveof the State from which any senator has been chosen to certify his election,under the seal of the State, to the President of the Senate of the UnitedStates.

FurtheT, 2 V.S.C. § 1b provides:

Countersignature of certificate of election. The certificate mentioned insection 1a of this title shall be countersigned by the secretary of state ofthe State.

Thus, where there has been an election of a United States Senator, the governor of that

state has an obligation to certify the election through a certificate that the secretary of

state must countersign.

Here, of course, Mr. Burris was appointed by the governor and was not elected.

This is a distinctionwithout a difference. The federalstatutes above were passed in

1866. At that time, Article I, Section 3 of the U.S. Constitution provided that state

legislatures chose V.S. Senators. Some 47 years later, however, the 17tnAmendment to

the Constitution was ratified providing, in part, for the popular election of Senators:

When vacancies happen in the representation of any State in the Senate,the executive authority of such State shall issue writs of election to flllsuch vacancies: Provided, That the legislature of any State may empowerthe executive thereof to make temporary appointments until the people fillthe vacancies by election as the legislaturemay direct.

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Given the clear language of the 17111Amendment and the statutes cited above, as

well as the history of these provisions, the certification requirements imposed by 2 'U.S.C.

§ 1a and 1b clearly apply both to elections as well as appointments under the 17th

Amendment of the V.S. Constjtlltion.

In swn, when there is a vacancy in the United States Senate, th.e 17111Amendment

requires that it be filled either by special election or, where the legislature so directs, by

temporary appointment by the governor. When the vacancy is filled under either

procedure,2 V.S.C. §§ la and 1b require that the procedurebe certifiedboth by the

governor and the secretary of state. Here, the illinois Governor has fulfiIled his

obligations under the 17thAmendment, 2 U.S.C. § la and 10 ILCS 5/25-8. In contrast,

however, Secretary White has refused to fulfill his obligation to certify Mr. Burris'

appointment under 15 ILCS 305/15(2) and (8) and under 2 V.S.C. § lb.

OtheTstate supreme courts have steadfastly refused to grant to secretaries of state

the kind of veto power that the Secretary of State has attempted to exercise here, holding

hostage the Illinois Governor's appointment of Mr. Burris and depriving the People of

Illinois full representation in the U.S. Senate.7 Through writs of mandamus, those state

supreme courts have ordered their respective secretaries of stale to countersign and seal

gubernatorial commissions. This Court should now do the same by acceptingjwisdiction

over this matter and ordering the Respondent to countersign and to affix the state sea] to

Mr. Bums' Certificate of Appointment evidencing his appointment as a United States

Senator for Stale of Illinois.

7 Barber Lumber Co. v. Gifford, 25 Idaho 654, 139 P. 557 (1914); State u rei. Fleming v.Crawford, 28 Fla. 441, 10 So. 118 (1901) Slale ex rei. Miller v. Barher, 27 L.R.A. 45, 4 Wyo. 409, 34 P.1028 (1893); Slate ex rei. Bienvenu v. Wromowski, 17 La.Ann. 156, 1865 WL 2528 (1865); ,feeal.to, Stateex rei. Neill v. Page, 20 Mont 238, SOP. 719 (1897).

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Dated this ~,day of January, 2009.\

GONZALEZ, SAGGIO AND HARLAN,L.L.C.Attorneys for Petjtioners

By:

GONZALEZ, SAGGIO AND HARLAN, L.L.C.35 East Wacker Drive, Suite 500Chicago, Illinois 60601312-566-0040

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