Federal Judiciary

State court: Burris appointment legal

By Akin Gump Supreme Court Practice Group

The Illinois Supreme Court on Friday removed any doubt that the appointment of Roland W. Burris temporarily to a U.S. Senate seat was legal — at least as a matter of state law.  In a ten-page ruling, the state tribunal unanimously found that everything required of such an appointment under Illinois had be done. ”No further action,” the court said, “is required by the [Illinois] Secretrary of State to make the Governor’s appointment of Roland Burris to the United States Senate valid under Illinois law.”

The court, however, went on to suggest that it could find no reason in Senate rules —  or elsewhere – why Burris should not be allowed to take the seat vacated by President-elect Barack Obama.at

Depending upon how Senate leaders — and, perhaps, the Senate Rules Committee — reacts, the state court ruling might or might not end the controversy over Burris’ seating. Nothing in the state court decision appears to be directly binding on the Senate, if that body chooses to explore Burris’ selection to satisfy itself of the legitmacy of that appointment before accepting him for the remaining two years of Obama’s Senate term.  A federal court might be in a position to second-guess any such Senate maneuver. although that is not clear as a constitutional matter.

Burris’ chances of becoming a senator, at least temporarily, had come to hinge — as a legal matter — on the insistence of a Senate official that Burris needed to have his appointment by embattled Gov. Rod Blagojevich signed formally by the Illinois secretary of state, Jesse White.  White, citing ethical reasons, had refused to do so.  But White did prepare another formal paper to certify the appointment, and the state court said Friday that Burris simply needed to pay for a copy of that paper, if he wanted anything beyond the unsigned appointment paper to bolster his claim to the seat.  That, it indicated, was not necessary.

The ruling, at least as to state law, was expected, because Secretary White, responding to Burris’ legal complaint that White had acted illegally by refusing to sign the appointment paper, had told the Illinois court that such a gesture was not needed to satisfy state law.  The court essentially embraced White’s legal reasoning in ruling for Burris.

What was surprising about the decision, though, was the state judges’ commentary — apparently without actual legal effect — suggesting that the Senate had no reason for blocking Burris’ seating.   Here is what the state court said on the point:

“We note…that nothing in the published rules of the Senate…appears to require that Senate appointments made by state executives pursuant to the Seventeenth Amendment must be signed and sealed by the state’s secretary of state.  Moreover, no 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.”

But, it then went on to say that the lack of any such authority could not be the basis for a state court ruling to command the secretary of state to sign an appointment paper. 

Thus, the commentary was only related to state law.  In any event, it could not bind the Senate because (1) the Senate’s refusal to seat Burris up to now was not before the state court, (2) the state court’s authority to command the Senate to seat Burris is doubtful at best, and (3) its musings about what the Seventeenth Amendment required was unnecessary for it to resolve the purely state issue that was technically before it.

(Thanks to Howard Bashman of How Appealing blog for the alert to the Illinois court’s decision.)

Full post as published by SCOTUSBLOG on January 09, 2009 (boomark / email).