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02/19
No. 107816
IN THE
SUPREME COURT OF ILLINOIS . . .. ........
General of Illinois, hereby objects to the motion for leave to file a mandamus
I. Introduction
This Court should deny the petitioners' motion for leave to file a.n
States Senate. The Secretary has performed all of his legal duties regarding
the Burris appointment. This Court cannot compel the U.S. Senate to seat
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FILED
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SUPREME COURTCLERK
JAN-07-2009 12:52 SC CLERK'S OFFICE CHGO P.03/19
,.
complete the appointment. process and to enable the U.S. Senate to Reat
Burris. Accordingly, the petitioners are not entitled to seek mandamus relief.
federal criminal complaint was filed against him by U.S. Attorney Patrick
Fitzgerald.
Governor Blagojevich tried to sell the appointment to the U.S. Senate seat
Blagojevich, stated that the Governor would not make an appointment to fill
indicated that the Governor was interested in appointJug Davis to the seat.
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Senate vacancy.
A).
the vacant U.S. Senate seat. (Proposed Complaint at ~ 11, Ex. A at 2).
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Illinois law, the Secretary has refused to countersign and affix the state seal
Complaint at ~ 18).
13. Because Governor Blagojevich has been arrested and charged with
trying to sell the U.S. Senate appointment, the Secretary believes that it
his name and the state seal to further this effort by the Governor.
14. The petitioners filed their motion for leave to file an original
15. The I)etitioners request an order requiring the Secretary "to certify
States Senator from the State of rJlinois and to do all other acts required to
and there is no need for further confirmation by any other official from the
State of Illinois, including but not limited to, Secretary White," (Proposed
Complaint at ~ 14).
III. Argument
17. This Court should deny the petitioners' motion for leave to file an
original complaint for mandamu8 because the petitioner!; do not and. cannot
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<.lllegea deaT entitlement to the relief that they request, that the Secretary
failed to perform any duty required by law, or that the petitioners have no
18. 1'he petitioners' motion should be denied because they do not and
cannot allege () clear entitlement to the relief they seek. "Mandamus iRan
a purely mini8terial duty." People ex rel. Ryan v. Roe, 201 IlL 2d 552, 555
(2001). An order of mandc:Jmw; nUty issue only where the party seeking relief
has established (1) a clear, affirmative right to relief; (2) a clear duty in the
public official to act; (3) a clear authority in the public official to comply with
the order; and (4) the lack of other remedie1;. Holly v. Montes, 231 Ill. 2d 153,
159 (2008); People ex rel. Devine v. Stralka., 226 Ill. 2d 445, 449 (2007). The
relief they seek, Holly, 231 Ill. 2d at 159; 1350 La,he Shore Assoc.5. I). Heale,Y,
223 Ill. 2d 607,628 (2006), and to plead a mandamus action properly, the
elements. Noyola lI. Bd. of Educ. of City of Chicago, 179 Ill. 2d 121, 133
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JAN-07-2009 12:52 SC CLERK'S OFFICE CHGO P.07/19
19. The Illinois Election Code specifies the process to fill a U.s. Senate
vacancy in Illinois. 10 ILCS 5/25-8 (2006). That statute provides that the
Governor "shall make temporary appointment" to fill the vacancy, and it does
not require the Secretary to undertake any action to effectuate the Governor's
appointment.. [d. This statute, then, cannot be the basis for mandamus
20. Additionally, the Secretary has performed all of his legal duties
under the Secretary of State Act (Act). Section 5(2) of the Act applies to
ILCS 305/5(2) (2006). There is no dispute in this case that the Secretflry
Ex. A). By doing so, he performed all of his legal duties under the Act.
countersign or affix the state seal to any document. 15 ILCS 305/5(2) (2006).
5(1) of the Act, 15 ILCS 305/5(1) (200m, which requires the Secretary to
added). They contend that under this provisicm they have a clear right to
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JAN-07-2009 12:52 SC CLERK'S OFFICE CHGO P.08/19
have the Secretary countersign and affix the stat.e seal to the Certificate of
Appointment, that the Secretary has a clear duty to countersign and afflXthe
.state seal to the Certifieate, and that the Secretary ha.s clear authority to
at ~ 20).
like this one, and the Secretary has fully complied with this section by
28. Indeed, the General Assembly reserves the need for "commissions"
the Governor," 55 ILCS 5/3-6001 (2006), and the clerks of courts "shall be
and, in turn, the Secretary must count.ersign and affix the state seal under
concept - and the Secretary's duty under section 5(1) therefore is different
and not impli<;ated in this situation. Put simply, Illinois law does not require
the Secretary to undertake action. (pet. Motion to Accelerate at' 5). But
petitioners' mandamus claim, either. The only other section that could
other duhes as may be required by law," 15 ILCS 305/5(8) (2006). But the
petitioners have not identified any law requiring the Secretary to perform the
26', Nor, finally, do the Standing Rules of the United Stab~s Senate
impose a legal duty on the Secretary to countersign and affiz the state seal to
Senate Appointees. Under Rule II, the Secretary of the U.S. Senate shall
hereto). But Rule II is explieit that thc appointing Governor and the
Secretary of St.ate "may use such formO" only "if they see fit" to do so. It is
not required.
that Rule II expressly leaves to the discretion of the appointing State officials
§§ 1«(1),(b) (where U.S. Senator is elected, State must certify election under
28. The p(~t.it.ionersdo not and cannot identify any legal source of the
their clear right t.ohave the Secretary countersign and affix the state seal to
the Certificate of Appointment, see Healey, 223 Ill. 2d at 628, and their
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mandamus action that they have no other adequate remedy. See Stralka,
226 Ill. 2d at. 449. The Secret;ary has performed all of hiB legal duties and the
ultimate d.etermjnation whether (:0seat petitioner Burris lies with the U.S.
Illinois, respectfully requests that ~his Court deny the petitioners' motion for
Respectfully submitted,
LISA MADIGAN
Attorney General
State of 11"
BY:
GNER
Assi~tant Attorney General
100 West Randolph St.
12th Floor
Chicago, Illinois 60601
(312) 814-2146
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JAN-07-2009 12:53 SC CLERK'S OFFICE CHGO P.12/19
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STATE OF ILLINOIS
COUNTY OF COOK
7. Itold Mr. Ada.ms Jr. that, should G9ve"rnorBlagojevich offer the appointment
to the UnIted States Senate, Iwouldaccept.
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EXHIBIT
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ROLANDW. BURRIS
Senate..Designate for t.he State of Illinois
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SC CLERK'S OFFICE CHGO P .14/19
JRN-07-2009 12:54
RULE II Page 10f2
J. The prescJ\tatiun of the credentials of Seniltors elect or of Senators dttSigMte and other questions of privilege shall
always be in ordel', except during the reading and CQrrection of the Journal, wl'ile 13Qucstion or order Or /I rnotion to adjourn
is pending, or while tJ;e Senate is voting or "sce.tbhling tile presenc!:: of a quorum; anc! all que::;tions Clndmotions ilrIS;,)Oor
made upon the pre~el'\tation of SuChcredentiClf!>shall be proceeded with lIl)til disposed of.
2. The Secretary shilll keeo a record Of the certificate$ of eler.tior! ilnd certifiCiltes of appoinlment Q( SenatorS by entering in
a wellbound booK Kept for that purpo!;e the date of the election Or appoinlment. the name of the person elected or
appointed, the date of the certIficate, me name of the governor and the secretClry of state signing and countersigning the
s(lme. and tile State from which such Senator is elected r)r apOOinted.
3. The Secretary of the Senate shall send copie$ of the fOIlOWi,,!)recommended forms to lhe governor and secretary of
state of each State wherein an election is about to take place or an OIPpoil1tment is to be made so t"bt they "'2JV use Such
forms if they see fit.
THE RECOMMENDED FORMS FOR CeRTIFICATE OF ELECTION AND CERTIFICATE OF APPOINTMENT ARE AS FOLLOWS:
Witness: Mis excellency our governor and our seal hereto .;Iffixed ilt _ thIs _ day of __. in the year of our Lord 19, ,
By the governor:
C_D_.
Governor.
E_F_.
Sccretllry of State.
from s.;Iid State if'l the Senale of the United States ciOused by the of C__ 1>_. _
Sl:rtlltor for the unexpired term ending at noon on tl'le 3d day of J~nLlilry. 19_, to fill the: vec&,)Cy in the rcprcse:ntation
WitneSs: His excellency our gQvernor -' "no O!,lrseal hereto (lffixed at _ this _ d3Y of --' in tin: year of our Lord 19_~..
By the governor:
E._ F..,.,
Governor.
EXHIBit
G_ H~_,
secretary of Sl:!Ite. 1.
SC CLERK'S OFFICE CHGO P .15/19
JAN-07-2009 12:54
RULE 11 Page 2 of2
Cf.R.TlflCATE OF APPOINTMENT
To the Pre~ic1ent of the Senate of the United States;
This is to certify that, pursuant to the power vE:sted in me by the Constitution of the United States and the laws of the State
of _, I, A_ B_. the governor of S(!ic!Stelte. eto hereby appoint C_ D_ " SeMtOr frorn ~lIid Stllte to represent ~aid Stilte.
In tile SCnI!te of the United StCltes until the vaCiinty therein c(!usec! by t.he _ of E_ F-' '5 filled by election as provided by
law.
Witness: His e)(C~lIenCY Ollr goveroor _. and our scar hereto (Jffixed at _._ this.,. day of ' in the ye~r of our Lord] 9_.
By the governor:
G_H_.
GOvernor.
!.,._. J,,_.,
Secretary of State.
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