The Court denied Roland Burris' request that the Court order the Illinois Secretary of State to sign and affix his seal to the commission reflecting Rolan Burris' appointment. The Court identied, as authority for its opinion, section 5(1) of the Secretary of State Act (15ILCS 305/5(1) (West 2006) (the Secretary of State Act).
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 (State)Senate confirmation is required, the date of the confirmation shall be included in the register.
In effect, the Court concluded that pursuant to Section 1 of the Secretary of State Act, the signature and seal of the Secretary of State is only reqired when the Governor is ordered to issue a commission, as a matter of law.
Because the Secretary of State's "sign and seal" duty is triggered only in cases where commissions are required by law, it necessarily follows that the Secretary of State had no duty to sign and seal the certificate of appointment issued by the Governor in this case.
A commission was not required for Roland Burris' appointment, consequently, the Secretary of State was not required to sign it and affix his seal to it.
But the Court made it clear that Roland Burris is correct when he calls himself the junior Senator from Illinois.
'The commission is not the appointment; it is merely the written evidence of the appointment' Where the issuance of a commission is not made by law a necessary part of the appointment, the appointment is complete when the appointing officer makes his choice C.J.S. Officers Sec 36. 1978 Ill. Att'y Gen. Op. 138,139
After declaring the validity of the appointment, the Court as much as said that all the Senate required was notice of a valid appointment. The Court went on to say that notice was most certainly accomplished when, prior to the arrival of Roland Burris,
On January 5, 2009, the chief of staff of the Governor hand-delivered Mr. Burris' certificate of appointment to the secretary of the United States Senate.
Then the Court issued a challenge to the United States Senate.
(N)o explanation has been given as to how any rule of the Senate, whether it be formal or merely a matter of tradition, could supercede the authority to fill vacancies conferred on the states by the federal constitution.
Finally, the Court concluded that the only action required by the Secretary of State was accomplished on December 31, 2008, the same day, the appointment was given to Roland Burris, namely, when the Secretary of State registered the appointment.
(T)he only ministerial act required of the Secretary of State in this case is that he register the appointment in accordance with Section 5(2) of the Secretary of State Act
Then, as if to accomplish the satisfaction of any symbolism that the Senate might require, the Court pointed out that anyone can, at any time, obtain the Seal of the Secretary of State, attached to a registered appointment.
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 Act "to give any person reqiring the same paying the lawful fees therefore, a copy of any law, act, resolution, record or paper in his office, and attach thereto his certificate, under the seal of the state.
Pointing out that:
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, Petition could obtain a certified copy bearing the state's seal.
In due time, the Junior Senator from Illinois, will take his seat.
