Should Jesse White Certify Burris' Appointment?

By Levois

Food for thought from law blog Le·gal In·sur·rec·tion. There's even a compilation of links from around the nation that are covering the Rod Blagojevich scandal.

The simple solution to resolving the dispute is to read the statutes in question using the standard rules of statutory construction that wherever possible, statutes should be read to give meaning to all provisions, to be consistent, and to avoid absurd results. Using these rules, it is clear that White is obligated to sign the Certificate of Appointment. For whatever their reasons, none of the parties has chosen to focus on these principles.

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.]

According to White, the Certificate of Appointment is not a "commission" so all White need do is make a register of the appointment, which he has done. White's interpretation, however, does not give meaning to the distinction drawn in the statute between the Secretary of State's need to countersign and affix the seal to a document (the commission) versus the record keeping obligation to register the appointment. The Secretary of State's register is the official record of the State of an appointment, but the certified commission is the proof of the appointment. These are two distinct functions, and the only consistent way to read the statute is to honor this distinction, not read the "commission" provision out of existence as White proposes.

You should go over there and read the rest, but the legal analysis is pretty good. It makes sense -- of course we have no idea how the state Supreme Court should rule.

I don't begrudge White for not being willing to certify Blagojevich's appointment. It may well be proven that White didn't follow the law in this instance, even if a Senate appointment by the currently impeached governor was very unpalatable. Perhaps White made the best move he could in preventing an unpalatable appointment. This story is somewhat unprecedented.

Still it looks like despite being turned away by the U.S. Senate or even Jesse White, as the Secretary of State wasn't willing to affix the state's seal to this appointment, Burris might get his U.S. Senate seat.