Docket No. 107816.



### IN THE SUPREME COURT OF THE STA TE OF IL LINOIS

ROL AND W. BURRI S et al. , Petitioners, v. JESSE WHITE,

Secreta ry of State, Responde

nt.

Opinion filed January 9, 2009.

JUSTICE KARMEIER delivered the judg ment of the court, with opinion. Chief Justice Fitzgerald and Justices Freema n, Thomas
, Kilbride, Garman and Burke concurr ed in the judgment and opinion.

OPINION The issue presented by

this ori ginal action for mandamus is whether Jesse White, the Secr

etary of State o f the State

of Il linois, is required by section 5(1) of

the Secretary

of State Act (15 I

LCS 305/5(1) (West 2006)) to countersign and affix the seal of

the state to the document issued by Gover nor Rod R. Blagojevich

onDecember 31, 2008, certifying

the Governor’s appointment of Roland Bu

rris to the United States Senate. For the r easons that follow, we hold that section5(1) of the Secr etary of State A ct (15 I

LCS 305 /5(1) (We st 2006)) is inapplicable to the Burris appointment, and that no further actionis required

by a ny o fficer of this sta te to make that appointment valid. We f

urther hold that the only ministerial act require d of the Secretary o f Sta te in this c ase is tha t he register the

appointme

nt in accord ance wi th section 5(2) of t he Secre tary of State A ct (15 I

LCS 305/5(2) (West 2006)). The Secretary of State havingperformed that responsi bility on December 31, 2008
, the writ of mandamus is-2- denied. Background Following the November

4, 2008, g eneral

election , a major

ity of the members of the Electoral Colleg e v oted in favor of Barack H. Obama for the office of P reside nt of the U nited State s. See U.S. Const., amend. XI I. At the time of the g eneral

election , Preside

ntelect Oba ma w as t he j uni or U ni ted St ate s S ena to r fr om Illi noi s. In anticipationof assuming the Presi dency, Preside nt-elect Obama resigned his Sena

te seat, leaving

that post v acant. The seventeenth amendm ent to the United States Constitution provides that

“[w]hen vacancies happen in the rep resent ation of any State in the Senate, the executive authority of such Sta

te shall issue writs of e lection to

fil l suc h vacancies: Provided, That the legisla

ture of a ny St ate m ay empowe

r the executive thereof to make temporary

appointment until the peo ple fill the vacancies by

election as the leg islature

may direct. ” U.S. Co nst ., a men d. X VII. Pursu ant to the power conferred on it by this amendment , th e Illinois General Assembly empowered its executive, i.e ., the Governor, to make temporary appointments for the office of United States Senator. It has done so t h rough enactment of section 25–8 of the Election Code (10 IL CS 5/25–8 (West 2006)). Tha t statute provid es that “[w]hen a vacancy shall occur in the office of United States S enato r from this state, the Governor shall make temporary appointment

to fill such vacancy

until the next election of representatives in Congress.” 10 I LCS 5/25–8 (West 2006). Inaccordance with the authority conferred on him by

section 25– 8 (10 IL CS 5/25–8 (West 2006)), Rod R. Blagojevich, the Governor of Illinois, appointe d Roland B urris to te mporaril y f ill the United States Senate seat pre viously held by President-elec

t Obama. The Governor made that appointment by letter dated D ecember 30, 20 08. Th e following day, D ecember 31, 2008, the Governor executed a document entitled “certificate of appointment,” which was addressed to the Presi dent of th e Senate of the Un ited State s. In that

document
, the Governor certified that he wasappointing Mr. Burris to represent Illinois in th e U ni te d S ta te s S en at e u nt il th e v ac an cy caus ed by-3- President-elect

Obama’s resignation

“is filled by elec

tion as provided by law.” The certificate was on a preprinted for m and included, below the Governor’s signature, a space for the signatur e o f “Jesse White, Secr etary of St ate.” T he spa ce for t he Sec retary of S tate’ s sign atur e was left blank. The form used by the Gove rnor was apparently

based o n “recommended

for ms ” co nt ain ed i n R ul e II of the Standing Rules of the Uni ted Sta

tes Senate. As their name indicates, these forms are merely recomme nded. Sta te officials are not required to adopt th em, but “the y may

use [them] if they see fit.” Standing Rule I I, Un ite d States Senate, Committee on Rule & Administration. The Illinois Constitutionsets forth the Secreta ry of State’ s duties. It pr ovides tha

t “The Secreta

ry of State shall maint

ain the official records of the acts of the Gener

al Assemb ly

and such official records of the Executive Branch as provided by law. Such official records shall be available for inspection by the public. He shall keep the Great Seal of the State of Illinois and perform other duties that may be pre scribed by law.” I ll. Const. 1970, art. V, §16. Cons istentwith this provision, the General Assembly provide d
, by l aw, that

“[i]t shall be the duty of the Secretary of State: 1. To coun tersig

n and aff

ix the seal o f 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 conferre d, the date of the appointment, the date when bond or oath is taken and the date file d. If

[State] Sena

te confi r m ation is required, the date of the confirmation shall be included in the register.” 15 IL CS 305/5 (West 2006). Theseduties are set forth in section 5 of the Secretary

of State Act (15 IL CS 305/5 (Wes t2006)). Section 5 includes additiona l provision s, but none pertain to the present discussion. OnD ecember 31, 2008, the same day the certificate of appointment

was sig ned by the Gove rnor, the appointme

nt was duly registered by the Secretary

of State’s office pursuant to section 5(2)-4- of the Secretary

of State Act (15 IL

CS 35/5(2) (W e st 2006)). That

same day, the Secr

etary of State’s senior legal advisor sent a letter to Mr. Burris’ a ttorneys confirming that the appointment had been registered. Th e l et te r d ir ec tl y tracked the language used in section 5(2) and specific ally

cited tothat provision. There is no dispute that the Secretary

of State did not also sign and affix the state seal to the Governor’s certificate of appointment or his appointment letter dated December 30, 2008. OnJa nu ar y 2, 200 9, Mr. Burris, joined by two registered voters (hereinafter

Petitioners), filed a motion pursuant to Supreme C ou rt Rule 381(a) (188 I ll. 2d R. 381(a)) seeking leave to file a c omplaint for mandamus in our cou rt. The mo ti on invoked our original jurisdiction under article VI, se ction 4(a), of the Illinois Constitution of 1970 (Ill. Const. 19 70, art. VI, §4(a)) a nd sought an order compelling the Secretary

of State to

countersign and

affix the seal of the state to his appointment papers under section 5(1) of the Secretary of State Act (15 ILCS 305 /5(1) (We st 2006)) . In a separa te motion to “acce lerate

consideration of their motion for leave to file a complaint for writ of mandamus and to accelerate consider ation of [ th eir] complai ntfor writ of mandamus,” Mr. Burris and the other two Petitioners alleged t

hat prom pt resolution of the matter is required because without the Secretary

of State’s signature and the seal of the State, his appoin

tment woul d

notbe recognized by

the United States Senate, and the pe ople of th e State of Illinois woul d not be fu lly represented

in the Senate when the new United S ta tes Cong ress convened on January

6, 2009. Ina suppleme

ntal memor

andum whi ch we al lowed Mr. Burristo file, he advised the court

that on January 5, 2009, the chie f of staf f to t he Gov ernor hand-delivered Mr. Burr is’ certificate of appointment to the s ecre tary of the U nited States Senate. While the secretary

r etai ned the certificate, she declined to enter it into the Senate’s certifi catebook. Th e f

ol lo wi ng da y, when the Senate convened, Mr. Burrisappe a red at the Capitol Building to be sworn in as a United States Senator. He was no t permitted to do so and was barred from the Senate floor on the grounds the Secretar y of Stat e had no t countersigned

or affixed the state se al to Mr. Burris’ appointment papers. Pursuant to the rules of

this cour t, the Secr etary of State had until-5- January 7, 2009, to respond to Petitioners’ motions. The Secretary of State filed a timely response , and by separ ate order, we granted Petitioner s’ request for accelerated c onsiderationof t he motion for leave to file a complaint fo r wri t of mandamus . We also allowed Petitioner s’ request for a cc elerated consideration of the mandamus complaint itself. Because resolution of this case turns on questions of law whichthe parties have carefully examined and forcefully

argued inthe mater

ials alre ady

submitted t

o us, addit

ional ar gument i s unnecessary

. The numerous memoranda of law submitted by the parties’ shall stan

d as their briefs, and we shall proceed to the merits without or

al arg ument.

Analysis Mandamus is an extra

ordinar y r emedy to enfor ce, as a matter of right, “the performance of officia l duties by a public office

r where no exercise of discretion on his part is involved.” Noyola v. Board of Education
, 179 I ll. 2d 121, 133 (1997), quoting Madden v. Cronson
, 114 Ill. 2d 504, 514 (1986). To be entitled to a writ of mandamus , a party m ust establish a clear right to relief, a clea r duty of the pu

bli c official to act, a

nd a clea r auth ority

in the publ ic offic ial to comp ly with the writ. People ex rel. Madigan v. Snyder , 208 Ill. 2d 457, 465 (2004). We agre e with the Secreta ry of State that Pe titioners

in this case cannot satisfy

that burden. Petitioner s’ claim is predicated

on the Secretary

of State’s failure to countersign and affix the sta te seal to the documents appointing Mr. Burris t

o the Sena te. Acc ording t

o Petitioners, the Secretary owes sucha duty

under se ction 5(1 ) of the Se cretar y of State Act (15 ILCS 305/5(1) (West 2006)). Under the express terms of that statute, however, the duty to sign and a ffix the state sea

l only pertain s to “commissions required by law to be issued by the governor.” There

are situations in Illinois law where office r holder s are spe cifical ly required to obtain gubernatori al “commissions.” These include count y clerks (55 IL CS 5/2–2006 West 2006)), members of t h e boards of county commissions (55 ILCS 5/2–4001 (West 2006)), coroners (55 IL CS 5/3–3001 (

West 2006) ), sheri ffs (55 I LCS 5/3 –6001 (Wes t 2006)), clerks of the courts (70 5 IL CS 105/3 (West 2006)), and commissioned

office rs in the I llinois Stat

e Guard (20 ILCS 1805/37 (West 2006)). N o provision of I llinois law, ho wever, require s a-6- commission to be issued

by the Governor in case

of appoin tments to fill vacancies to the United States Senate. Th e relationship between “commissions” and the Governor’s appointment

powers was considered

in an Attorney Ge

neral opinion issued in 1978 at t

hen Gove rnor Tho mpson’s re quest. The opinion states: “To constitute an appointment to o ffice, there must be

some open, unequivocal act of appointment on the part of the appointing authority

empower

ed to make it. (

Molnar v. City of Auro ra (1976) , 38 Ill. App. 3d 580, 583; 63 Am. Jur. 2d Public Offi cers and Employ

ees §99.) An a

ppointmen

t to of fice is made and is complete when the last act required o f the appointin

g authority

vested with

the appointing power has been performed. People v . Lower (1911), 251 Ill. 527, 529.

*** While the appointment of an officer is usually evidenced by a commissi on, it is not e ssential t o the vali dit

y of th e appointment

that a commission be issued to the officer. ( Fekete v. City of East St. Lou is (1924), 315 Ill. 58, 60.) The

c ommission is not the appointment; it is merely thewritte n evidence of

the appointment. (63 Am. Jur. 2d Public Off icers and Em ployees §114.) Where the issuance of a commission is not made by la

w a nece ssary

part of the appoint

m ent, the appointment

is complete when the appointing officer makes his choice. 67 C.J.S. Officers §36.” 1978 Ill. Att’y Gen. Op. 138, 139. Whi le A ttorney Gene

ral opinions are not binding on the courts, a well-reasoned

opinion of the Attorney Gener al is entit

led to consi derabl e weight , especi ally in a matte

r of firs t impressi on in Illinois. Bonaguro v

. County Of

ficers Ele

ctoral Boa rd , 15 8 Ill. 2d 391, 399 (1994 ). We think this opinion, grounded as it is on precedent from our

own cour

t, is entitled to such weight and accurately

characterizes I llinois law. Becau se gubernatorial

appointments only require issuanc e of an actual commission whenthe governing law so provides and because

n o provision of law makes issuance of a commission necessary for the validity

of a gu bernatorial app ointee to

a United S tates Senate-7- va ca nc y, no commission was require d by la w to effectuate the appointment

of Mr. Burris t

o the Unite d States Se

nate. An d becau se the Secreta

ry of State’ s “sign a

nd seal” duty is trigg ered only in ca ses where commission s are re quir ed b y law, it nece ssarily follows that the Secretary of State had no duty

to sig n and seal the certificate of appointment

issued by the Governor

in this case. Under section 5(2) of the Secretary

of State Act (15 ILCS 305 / 5(2) (West 2006)), the Secretary of State’ s sole duty

was to register the appointment, which he has done. Our r esearch has disclosed but one reported dec ision pertaining to refusal by the

Secretary of State to counters ign and affix the seal to a commissi on for a g

ubernat orial ap pointment. It is People e

x rel. Ewign v. Forquer , 1 Ill. 104 (1825 ). That case involved the Governor’s attempt

to make an appointment to the post of paymaster

general in the state militia. Ma ndamus was ultimately denied for

reasons unrelated to the questions before us today, and nothing in the court’s decision

is in any way inconsistent with the ana lysis we have just set fo rth. A ltho ugh the opinion does not give a useful citation to the governing statute, the law in question was a pr ec ursor to the Military Code of I

llinois (20 IL CS 1805/1 et seq

. (West 2006)), and while the curr

ent Code n

o longe r addre sse s the specific post of pay master- gener

al, that post would have

fallen w ithin the category

of positions for which gubernatorial commissions are, in fact, required. For the reasons just

explained, a United States Senate vacancy is not such a position. The sugge stion has b een made that the G eneral

Assembly intended the term “ commission

” to be use d in

a more ge

neral se nse to encompa ss any

appointme

nts by the Governor

. Historic al analy sis of Illinois law will not support such a construction. The “sign a nd seal” duty contained in section 5 o f the Secretary of State Act has antece dents in earlie

r statute s. For example, a

version of the law was in e ffect in 1874, and it also contained a “sign and sea l” duty for commission s. Si gn if

ic an tl y, however, it differed from the current law inthat the r

egistr ation re quireme

nt, now set fo

rth in subsection (2) of section5, was al so direc ted spec ifically to commissi ons. That

is n o longer t he case. Public Act 86–398 amended the statute in 1989. Present law clearly

differentiates betwee n “c ommissions” under subsection(1) of section 5 and the more gener al “appoi ntmen ts”-8- contained in subse ction (2) of section 5. Under established rules of statutory con struction , we must a ssume tha t the Gene

ral Asse mbly made that distinction for a reason, and the reason is appar ent: under present law, commis sions are

no longe r neces sary

in every case to make a gubernatorial appointment valid. Whe r e commissions are required by law, the “sign and seal” duty applies. Where, as here, no commission is required , th ere is only a duty to register the appointment. As noted in th e Attorne

y G eneral opinion ci

ted above , the only purpose a signature and

seal could serve in this case is an evidentiary

one. It would confirm that the appointment had, in fact, been made. At this point, however, there is no question at all that the Gove r nor did, in fact, make the appointment. If the re was ever any

question about that on the part of the United States Senate, it should have been removed when the Governor’ s envoy appeared at the Senate with a copy of the c ertificate of appointment in hand. Intheir plead ings, Peti tion ers su gge st that the United Stat es Senate has taken the view that the Governor’s signed, hand-delivered certifi cateof appoin

tment is ins

ufficie nt to meet t

he requi rements of the Senate’s own internal rules. We note, however, that nothing in the published rules of the Senat

e, includ ing Rule II, appears to require that Senate appointments made by sta te exec utives pursuant to the

s event eenth

amendment must be signed and sealed by the state’s secretary of state. Moreover, no explanation has been given a s to how any rule of the Senate, whether it be formal or mere ly a mat ter of tradition, could supe

rcede t he author ity t o fill vacancies conferred on the states by

the fede ral cons titution. U

nder the se circ

umstance s, the Senate’s actions cannot serve as the predicate for a mandamus action agains tthe Secretary

of State. The only issue bef ore us is whether the Secretary of State, an official of this state, failed to pe rform an act require d of him by

the law of

Illinois. He did

not. Petitioners argue , in

the alternative, that the Secretary of State had

a mandator y du ty u nder ce rtain acts of Congress to sign and affix the seal of this state t o Mr. Burris’ appointme nt as Sena

tor. This argument is wholly

wit h out merit. The provisions invoked by Petitioner s, 2 U.S.C. section s 1a and1b, apply , by their ter ms, to situations where a vacancy is filled by election. Th e situati on here involves t he filling of a vac ancy

through appointme

nt.-9- There is one final point we feel constraine d to mention. While the Secretary of State has no duty under I llinois law to sign and

affix the state seal to the certificate of appointment issued by the Governor, he does have a d

uty under section 5(4) of the Secretary of State Act (15 IL CS 305/5(4) (West 2006)) “to give any

person requiring

the same paying

the lawful fees therefor, a copy

of any law, ac t, resolu

tion, rec ord or pa

per in his office, and attach thereto his certifica te, under the seal of the state.” The regis tr ation of the appointment of Mr. Burris made by the Secretary of State is

a “recor d or pape r” within the mean ing of th is statute. A copy of

it is available from the Secretary of State to anyone wh o re qu es ts it . F or pa yme nt of th e n or ma l f

ee ch ar ge d b y th e Secretary of State in accordance with this statut e, Petit ioners c ould obtain a certified copy

bearing the state’s seal. Because such re lief is possible, no or de r b y th is co ur t i s n ec es sa ry or appropriate. See People ex rel. Devine v. Stralka , 226 Ill. 2d 445, 450 (2007) (for mandamus to issue, the petitioner must be withoutany other ad equate remedy)

.

Conclusion Becau se the Secr

etary of State had no duty under section 5(1) of the Secreta

ry of State A ct (15 I

LCS 305 /5(1) (We st

2006) ) to si gnand affix the state seal to the document issued by the

Governor appointing Roland Burris to the United States Senate, Petitioners are not entitled to an order from this cou

rt requ iring th e Secre

tary to perform those Acts. Under th e Secre

tary of State A ct, the Secr etary ’s sole responsi bility was to re gister

the appoi

ntment (15 IL CS 3 05/ 5(2) (West 2006)), which he did. No further action i s requ ired by the Secreta ry of State or any othe

r official to make the Governor’s appointment

of Roland Burris to the United States Senate valid under Illinois law. More over, to t h e ext ent that additional proof of the validity of the appointment is necessary
, Illino is law provides a mechani smfor

obtaining it without

the need for judicial intervention. For the foregoing reasons, pe titioners’ re ques t for issuance of a writ of mandamus is denied. Mandate to issue forthwith.-10- Writ denied.