The Illinois Saga Just Keeps Getting Better

[Ken King]

While tedious and technical this scenario is absolutely a great learning experience for anyone interested in our political mechanism.

From what I have found;

a) The Governor of a state is required by Federal Law to certify the election of any Senator chosen by election.​

b) A state’s Secretary of State is required by Federal Law to countersign the Governor’s certificate of election.​

c) The 17th Amendment provides that an Executive of a state may make an appointment to fill a vacancy in the Senate if said state legislature allows for this provision.​

Now what is the Executive of a state? Is it the Governor alone or is it, as might be argued here, the Governor that appoints and the Secretary of State that verifies said appointment by affixing the seal and countersigning the commission? It seems that the Senate considers it the latter of the two by their refusal to accept the credentials of appointee Burris and that aligns with maintaining consistency with the requirements of a) and b) above.

Sadly I expect that Illinois Secretary of State White will affix his signature to the certificate of appointment and then the Senate will have to accept the appointment as valid. I say sadly because it will leave the question unanswered as to whether such signature is a legitimate requirement or not. Maybe some member in Congress will bring forward a bill to update the law to cover the instance of appointments to align with the requirements for an election.

Oh yeah, way to go Florida.

 

[cwo_ghwebb]

Bann, just to be clear, I've repeatedly argued that the Senate does not have a specific rule that would require that White's signature be on Burris' appointment, as a condition for him being seated. If such a rule or law exists, I've not been able to find it.

Also, if such a rule existed, it would seem to be unconstitutional.

Both SOS White and the U.S. Senate have been weasels in this situation.

Senate Rule II is what is being quoted as the reason for not seating Burris.

RULE II

Senate Democrats May Seat Franken Before Coleman Lawsuit Is Resolved - Yahoo! News

First link is the Senate rule. Second link is the article in which Rule II is the rule being referenced. Dingy is playing games, and may seat Franken before the election is certified by the Minnesota SoS.

On a side note, Schumer actually kept his mouth shut and stated as incoming Chair of the Rules Committee, he could not comment until he took his new position.

 

[Tilted]

It looks like Burris' writ before the Illinois Supreme Court has been denied.

I'm really surprised. Haven't read the accompanying order yet, so I'm not sure what this means.

 

[Tilted]

Here is another order of the court.

For all of the filings that Burris made to the court, he had to file a motion for leave to make the filing. This order here is an order granting him permission to make those filings (which he already made). So, I guess the court was agreeing to consider them. It also denies the motion for leave to file from the Cook County bar, which wanted to file a motion in support of Burris'.

The court agreed to consider Burris' request for mandamus, and to expedite that consideration. Then, in the order referenced in the above post, they denied his request for writ of mandamus. At least, I'm pretty sure that is what has happened.

 

[cwo_ghwebb]

Here is another order of the court.

For all of the filings that Burris made to the court, he had to file a motion for leave to make the filing. This order here is an order granting him permission to make those filings (which he already made). So, I guess the court was agreeing to consider them. It also denies the motion for leave to file from the Cook County bar, which wanted to file a motion in support of Burris'.

The court agreed to consider Burris' request for mandamus, and to expedite that consideration. Then, in the order referenced in the above post, they denied his request for writ of mandamus. At least, I'm pretty sure that is what has happened.

In plain English, have they denied him his opportunity to force SoS Jesse White to sign the appointment?

 

[This_person]

Here is another order of the court.

For all of the filings that Burris made to the court, he had to file a motion for leave to make the filing. This order here is an order granting him permission to make those filings (which he already made). So, I guess the court was agreeing to consider them. It also denies the motion for leave to file from the Cook County bar, which wanted to file a motion in support of Burris'.

The court agreed to consider Burris' request for mandamus, and to expedite that consideration. Then, in the order referenced in the above post, they denied his request for writ of mandamus. At least, I'm pretty sure that is what has happened.

Uuuuuuuuuuhhhhhhhhhhhhhhhhh what?

 

[Tilted]

What is still unclear, is the reason they denied it. There are several possibilities.

(1) They could have found that the legal requirements necessitating mandamus were not met - such as, Burris' had other means of remedy and mandamus from this court wasn't needed. White argued this point, among others, saying that Burris could find relief from either the federal courts or from the Senate (I can't remember which one he argued).

(2) They could have found that another of White's arguments was correct, in that there was no statutory duty for the SOS to sign an appointment, since it wasn't a 'commission' as referred to by 15 ILCS 305/5(1).

(3) They could have found that White has a duty to sign appointments, but that he also has some discretion to choose not to. That argument was not made by any of the parties involved.

(4) They could have found that their is no injury to Burris' by White's failure to sign the document, since his signing the document had no legal effect on the appointment. This would be similar to the finding described in (1).

There are probably other reasons they could have for denying the writ.

This development makes the situation pretty interesting.

 

[Tilted]

In plain English, have they denied him his opportunity to force SoS Jesse White to sign the appointment?

Sorry, yes. It appears that is the case.

 

[cwo_ghwebb]

Sorry, yes. It appears that is the case.

Ok, thank you for keeping it simple for me. The entire mess must be interesting from a legal standpoint but really annoying to me. Either the SoS is Co-Governor or not. In this case it would appear the Court says he is.

Strange.

Also, thanks for the timely responses.

 

[Tilted]

Okay, Fox news is finally reporting on this development. They are saying that the Illinois Supreme Court's ruling indicates that the signature is not necessary for the appointment to be legal under Illinois law. They've said that the form from the Senate is a recommendation and the Secretary of State of Illinois does not have to sign the appointment.

They are saying, essentially, that they think the Senate is wrong. Of course, their legal conclusion to that effect is not binding on the U.S. Senate. However, it is now clear that the official position of the state of Illinois is that Burris' is their duly appointed Senator.

I think the Senate's position, in light of this development and the SCOTUS ruling in Powell v McCormack, becomes very tenuous.

 

[Tilted]

Either the SoS is Co-Governor or not. In this case it would appear the Court says he is.

Actually, now that we have clarity as to why they ruled the way they did, they are saying he is not. Their ruling seems to be consistant with (4) in my suggestions above.

 

[Tilted]

More info, as reported by Fox news. The Illinois Supreme court has said that there is nothing in Rule II (of the U.S. Senate) that requires the Secretary of State to sign the appointment. They are also saying that the U.S. Senate has no right, under the 17th Amendment, to exclude Illinois' Senator from being seated. Essentially, they are calling out the U.S. Senate as having acted in an unconstitutional manner. I believe that assertion to be correct.

The question now is, will the U.S. Senate cave or are we headed to the U.S. Supreme Court for a good old fashioned state's rights versus federal rights showdown. I bet, after considering these developments, that the U.S. Senate will seat Burris. They will, no doubt, spin it as they are behaving magnanimously, while insisting that they were right all along.

 

[ImnoMensa]

Hasn't Bracko bama , the big guy himself, now said Burris should be seated?

 

[awpitt]

More info, as reported by Fox news. The Illinois Supreme court has said that there is nothing in Rule II (of the U.S. Senate) that requires the Secretary of State to sign the appointment. They are also saying that the U.S. Senate has no right, under the 17th Amendment, to exclude Illinois' Senator from being seated. Essentially, they are calling out the U.S. Senate as having acted in an unconstitutional manner. I believe that assertion to be correct.

The question now is, will the U.S. Senate cave or are we headed to the U.S. Supreme Court for a good old fashioned state's rights versus federal rights showdown. I bet, after considering these developments, that the U.S. Senate will seat Burris. They will, no doubt, spin it as they are behaving magnanimously, while insisting that they were right all along.

The Illinois Supreme Court doesn't determine wether or not the US Senate acted in an unconstitutional manner, they are a state court with no juristicion over the US Senate, a federal body. So this will have to be settled by the US Supreme Court which does have juristicion over the US Senate.

 

[Tilted]

So, I had a chance to read the Illinois Supreme Court's Opinion. It touched on a lot of points, some of which are:

(1) They agreed with White that 15 ILCS 305/5(1) applied only when a 'commission' was specifically required by the law, and thus, that the SOS has no statutory obligation to sign the appointment. In fact, at one point they referred to Blagojevich as having certified the appointment when he signed it.

(2) They said that nothing in the published rules of the Senate, including Rule II, required that the SOS sign a certificate of appointment.

(3) They said, moreover, that no one has offered an explanation of how any rule that the Senate might have could supercede the authority that the Constitution grant's the states to fill vacancies.

(4) They dismissed, as "wholly without merit", the argument that the SOS was required by 2 USC 1(a) and 1(b) to sign the certificate of appointment; because, that code refers to certificates of election, and not appointment.

(5) They said that the only possible purpose for the Secretary of State's signature on the appointment would be evidentiary. They said that the fact that the Governor had appointed Burris was not in question. Furthermore, they said that if the U.S. Senate had any question of that fact, it should have been removed when the Governor's envoy showed up with the certificate of appointment.

(6) They added, that under Illinois law, the SOS is required to provide a copy of any "record or paper" to anyone who requires it, and to "attach thereto his certificate, under the seal of the state." They say that this would apply to the registration of the appointment that White made. Thus, they say, anyone can request and receive a certified copy of that document with the state seal.

I suspect that last revelation will be the excuse the Senate uses to cave on this matter. It won't meet the technical requirements that they insist they can demand, but it will give their position cover. They'll continue to insist that they had the right to do what they did, and say that the paperwork is now in order, so they can let Burris be seated. After all, they were only trying to make sure that the rules were followed, insuring the integrity of the American political process.

This was never about the paperwork, it was about Reid and the Senate flexing their little pee-pees. The Supreme Court of Illinois has basically just said, 'Okay U.S. Senate, if you want a pissing contest - let's have a pissing contest.' I guess we'll see if the Senate still has the appetite for it.

 

[Tilted]

The Illinois Supreme Court doesn't determine wether or not the US Senate acted in an unconstitutional manner, they are a state court with no juristicion over the US Senate, a federal body.

That is no doubt true and I referred to that fact in an earlier post.

What they do have the authority to do, is determine whether or not someone is duly appointed as a representative of Illinois, under Illinois law. That declaration, combined with the 17th Amendment, combined with the U.S. Supreme Court's previous decision, dictates that the Senate's actions are unconstitutional.

Unless the U.S. Supreme Court modifies, or further elaborates on their previous decision (which they very well may do), I firmly believe that the U.S. Senate doesn't have a leg to stand on. As it stands now though, their decision is pretty clear.

 

[Ken King]

Reading the issued opinion ( http://www.state.il.us/court/OPINIONS/SupremeCourt/2009/January/107816.pdf ) Burris has a remedy available that should allow for him to present suitable credentials.

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).

 

[Bann]

More info, as reported by Fox news. The Illinois Supreme court has said that there is nothing in Rule II (of the U.S. Senate) that requires the Secretary of State to sign the appointment. They are also saying that the U.S. Senate has no right, under the 17th Amendment, to exclude Illinois' Senator from being seated. Essentially, they are calling out the U.S. Senate as having acted in an unconstitutional manner. I believe that assertion to be correct.

The question now is, will the U.S. Senate cave or are we headed to the U.S. Supreme Court for a good old fashioned state's rights versus federal rights showdown. I bet, after considering these developments, that the U.S. Senate will seat Burris. They will, no doubt, spin it as they are behaving magnanimously, while insisting that they were right all along.

Just a thrill a minute, that US Congress is!

 

[cwo_ghwebb]

Durbin Says Burris Still Can't Be Seated

This was never about the paperwork, it was about Reid and the Senate flexing their little pee-pees. The Supreme Court of Illinois has basically just said, 'Okay U.S. Senate, if you want a pissing contest - let's have a pissing contest.' I guess we'll see if the Senate still has the appetite for it.

Illinois Senator Richard Durbin said Roland Burris can’t be seated as his state’s junior senator even after the Illinois Supreme Court said his appointment by impeached Governor Rod Blagojevich is valid under state law.

The seat should stay empty until Blagojevich’s impeachment trial is completed and the next governor should be allowed to make the
appointment, Durbin said yesterday in Chicago.

“That’s the best way to turn the page,” said Durbin, the Senate’s second-ranking Democrat. Burris’s lawyer said he may file a new court suit in an effort to enforce his appointment.

Burris, 71, wasn’t allowed to participate in the swearing- in of new senators Jan. 6 because his Senate appointment lacked the signature of Illinois Secretary of State Jesse White. The Illinois Supreme Court ruled yesterday that White doesn’t have to sign the appointment for it to be valid.

Blagojevich, 52, impeached yesterday by the Illinois House of Representatives, picked Burris, a Democrat, last month to fill the Senate seat vacated by President-elect Barack Obama.

Burris’s lawyer, Timothy Wright, said he was “ecstatic” about the court ruling. He said he sent Senate officials a copy of a new letter from Blagojevich making the appointment, without any mention of a need for White’s signature. Attached to the letter was a certification by White that the copy was genuine.




Durbin Says Court Ruling Doesn’t Resolve Burris Senate Dispute - Yahoo! News

Just how much dumber can the Donks get in the Senate?



Another interesting take (written before Blago was impeached).



Blagojevich Uses the Law To Outsmart Senate Dems

It is total hypocrisy for the naysayers of embattled Illinois Gov. Rod Blagojevich to assert that he didn't have the legal right to appoint Roland Burris to fill the U.S. Senate seat vacated by President-elect Barack Obama.

According to the Illinois Constitution, the governor of the state has the sole discretion of appointing the replacement. Has Blagojevich resigned or been impeached? Nope. If you call Springfield, Ill., and ask for the governor's office, they'll tell you that Blagojevich's name is still on the door.

It seems a lot of folks are excited and happy that Illinois Secretary of State Jesse White took a stand by refusing to sign the paperwork certifying Burris as the Senate appointee. Yet what these same folks somehow refuse to recognize is that Blagojevich isn't some guy sitting around in his office, twiddling his fingers, flipping through the cable channels with a remote, and waiting to get impeached. He still is carrying out his duties as governor.

Did you know that since his arrest in early December, Blagojevich has pardoned 22 people? I haven't heard a huge outcry over this tainted governor setting folks free.


Did you know that Blagojevich continues to sign bills that were passed by the General Assembly? U.S. Attorney Patrick Fitzgerald cited a pending bill on the governor's desk related to horse racing as a reason for arresting him, but Blagojevich still can sign any bill he so chooses.

Did you know that earlier this week, Blagojevich, as determined by state law, set March 3 as the primary date and April 7 as the general election date to fill the U.S. House seat of Rahm Emanuel, who resigned after agreeing to become Obama's chief of staff? By the way, guess who signed the certification of that election? Jesse White!

The law says Blagojevich can set a special election to fill a congressional seat, so doesn't the same law state that he can fill a U.S. Senate seat?

Blagojevich Uses the Law To Outsmart Senate Dems by Roland S. Martin on Creators.com - A Syndicate Of Talent

It would appear the longer this drags on, the more informed the citizenry will be about the law and perhaps there will be some outcry over the Senate leadership believing they are above the Constitution.

 

[Bann]

So let me get this straight. Harry Reid says that Al Franken IS the Senator from Minnesota, so that's that. Harry Reid says that Roland Burris is NOT the Senator from Illinois, so that's that.

I love the way he & Nancy are just strutting around Congress making all kinds of waves just to show Obama & Biden who's boss around town.

This was never about the paperwork, it was about Reid and the Senate flexing their little pee-pees. The Supreme Court of Illinois has basically just said, 'Okay U.S. Senate, if you want a pissing contest - let's have a pissing contest.' I guess we'll see if the Senate still has the appetite for it.

Reading the issued opinion ( http://www.state.il.us/court/OPINIONS/SupremeCourt/2009/January/107816.pdf ) Burris has a remedy available that should allow for him to present suitable credentials.

And he got it. But that's not good enough for the Senate!

Illinois Senator Richard Durbin said Roland Burris can’t be seated as his state’s junior senator even after the Illinois Supreme Court said his appointment by impeached Governor Rod Blagojevich is valid under state law.

The seat should stay empty until Blagojevich’s impeachment trial is completed and the next governor should be allowed to make the
appointment, Durbin said yesterday in Chicago.

“That’s the best way to turn the page,” said Durbin, the Senate’s second-ranking Democrat. Burris’s lawyer said he may file a new court suit in an effort to enforce his appointment.

Burris, 71, wasn’t allowed to participate in the swearing- in of new senators Jan. 6 because his Senate appointment lacked the signature of Illinois Secretary of State Jesse White. The Illinois Supreme Court ruled yesterday that White doesn’t have to sign the appointment for it to be valid.

Blagojevich, 52, impeached yesterday by the Illinois House of Representatives, picked Burris, a Democrat, last month to fill the Senate seat vacated by President-elect Barack Obama.

Burris’s lawyer, Timothy Wright, said he was “ecstatic” about the court ruling. He said he sent Senate officials a copy of a new letter from Blagojevich making the appointment, without any mention of a need for White’s signature. Attached to the letter was a certification by White that the copy was genuine. [/I]

From last night's "Chicago Breaking News" :

The Senate's Democratic leaders have balked at accepting Burris, citing the fact that Illinois Secretary of State Jesse White has refused to sign the appointment paperwork submitted by Blagojevich. In an effort to gain that signature, Burris' lawyers went to the Illinois Supreme Court and asked that White be ordered to sign the document.

The Illinois justices did not order White to do that, but their ruling Friday said there was no legal requirement that White sign the paperwork and that it was enough that he had simply registered the appointment of Burris.

Shortly after the ruling, White produced a document from his office affirming that he had registered the appointment. In a statement, he said had done everything required and "could not and will not in good conscience sign my name to any appointment made by Gov. Rod Blagojevich."

Burris' legal team said it sent a copy of the court ruling and the newly released document from White to Senate Democratic leaders.

At his news conference, Durbin said 125-year-old Senate rules demand that the secretary of state sign the appointment paperwork from Blagojevich, regardless of the Illinois court decision.

"At this point, we've clearly reached an impasse," Durbin said. "In this case, there is a missing signature under Senate rules."

Later Friday, however, Durbin and Senate Majority Leader Harry Reid of Nevada issued a one-sentence statement saying that they were seeking legal advice on how to respond to the paperwork from White.

Attorney: Ruling gives Burris the Senate seat - Chicago Breaking News

Obviously, it's not about the paperwork. It's about Harry [short man complex] Reid throwing a sissy snit fit over who's in charge at the Senate.

As predicted, the various Dem Leaders have been engaged in strutting around in their little fiefdoms marking their territories before Obama is sworn in. There have been comments made (similar to "Obama isn't the boss of me, he doesn't tell me what to do", etc) and actions taken like this that clearly indicate trouble in the big D paradise of power. With each one elbowing the others in their power struggle - nothing will get done.

I think this is an excellent opportunity (while being the loyal opposition, of course) to give them all the rope they need. And just wait for 2010.