On December 31, 2008, Roland Burris filed suit in the Illinois Supreme Court seeking an order compelling Secretary of State Jesse White to sign and affix the state seal to the Certificate of Appointment (see Exhibit A to Burris’ Complaint) signed by Gov. Rod Blagojevich appointing Burris to Barack Obama’s open Senate seat. The essence of Burris’ argument is that White is required to sign and affix the state seal to all “commissions” required by law to be issued by a Governor.

The two key provisions of the Illinois Statutes, 15 ILCS 305/5, are as follows:

Sec. 5. It 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 Senate confirmation is required, the date of the confirmation shall be included in the register. [Italics added.]

White’s defense is that White is not required to sign and put the seal on the Certificate of Appointment, because an “appointment” is not a “commission.” Appointments, White argues, only need be registered, which White has done. Since White has no legal obligation to sign the Certification of Appointment, he argues, the Court cannot compel him to do so. To the extent the U.S. Senate purports to require that a seal be affixed to an appointment certification, White argues, such requirement is not binding on White. Moreover, as White notes, the Senate Rule in question does not even require certification, but merely suggests certification.

So, White and U.S. Senate Majority Leader Harry Reid are attempting to create a Catch-22 for Burris. On the one hand, Reid says the Secretary of State must certify the appointment under Senate Rules; on the other hand the Secretary of State says that Illinois law does not require him to so certify and U.S. Senate Rules are not binding on Illinois state matters.

At one level, White is correct. Senate Rules are not binding on states, and in any event, the U.S. Senate Rule at issue by its own terms does not require certification. So White is correct that Reid is acting unlawfully in excluding Burris regardless of the state certification. On this, Burris agrees, since he argues in his own court papers that he already is the Senator, and that he should be seated regardless of the certification.

But Burris also is correct that White must certify the Certificate of Appointment. While the statute in question do not define “commission” as opposed to “appointment,” the two terms are consistent. In People ex rel. Ewing v. Forquer, 1 Ill. 104, 1825 WL 1467 (Ill. 1825), one of the only cases interpreting a Secretary of State’s obligations with regard to gubernatorial appointments, the Court used the term commission to refer to the document making the appointment. This is consistent with a plain reading of the two sections of the law which are at issue in the Burris suit. Commissions must be certified (305/5(1)) and the appointments reflected in the commissions also registered (305/5(2)) The two are not mutually exclusive, and should not be read that way.

So White, represented by Lisa Madigan, has made the best argument he could. But it should not be enough. Hopefully by the time you read this, the Illinois Supreme Court will have issued an order requiring the Secretary of State to certify the Certificate of Appointment, so that Harry Reid has no excuses to hide behind in seating Roland Burris, the lawful appointee.