Case Note: The Case of What Makes An Appointment in Illinois

In Law in America, Lawrence Friedman says he often starts his class on “Introduction to American Law” by illustrating that “every domestic story in the front page of the newspaper …has a legal angle—has some connection with the legal system.” This month in Illinois politics was no exception. The political question is whether it is appropriate for a disgraced governor (Illinois Governor Rod Blagojevich) to make an appointment (Roland Burris) to fill a vacant seat in the United States Senate, when that same Governor, prior making such an appointment, was accused of trying to sell that very Senate seat—thus leaving open the possibility that the appointee is a beneficiary of graft. In other words, is such an appointment so tainted that Illinois and the United States Senate is better off without an appointed Senator from Illinois than any Senator appointed by the disgraced governor. Two actions have occurred that raises legal questions. First, the Illinois Secretary of State has refused to certify the Blagojevich’s appointment of Burris. Second, the Senate has refused to seat Burris due to the lack of the Illinois Secretary of State’s signature on the form the Illinois governor used to effect the appointment. Burris asked the Illinois Supreme Court to rule that the Illinois Secretary of State was required to certify the governor’s appointment The Illinois Supreme Court actually ruled that under Illinois law, the appointment was effective when the Governor made it, that no signature by the Illinois Secretary of State was required for the appointment to be effective, and therefore the Illinois Supreme Court would not rule that the Illinois Secretary of State was required to certify the appointment. Following this victory, the Senate has now chosen to welcome Burris as one of their own. No matter what the ruling, the case was likely to become a decision useful at illustrating the constitutional concept of separation of powers. From an educational perspective the decision itself goes further than that, namely by illustrating: (1) the role of the judicial branch of government in engaging in legislative interpretation; (2) the role of the judicial branch in possibly ordering a member of a State’s executive branch to take a particular action; and (3) the courts unwillingness to overstep its bounds, thereby achieving the same result as the one intended if it issued the order sought by the plaintiff. (1) The Role of The Judicial Branch of Government in Engaging in Legislative Interpretation This decision is an excellent one to review in understanding the concept of separation of powers and judicial review. In America, Congress and State legislatures are empowered with legislative authority, namely to enact laws; the President and the various governors, as chief executives, are empowered to execute the laws made by the legislative branch; and the federal and state courts are empowered to interpret the law. The United States Constitution is called a constitution because it articulates the basic organizational structure of the United States government. Thus, it would be unlawful for one of the branches of government to take action that contradicts the framework established in the Constitution. Doing so would make our system of government completely different. In fact, according to Marbury v. Madison, the Constitution would be rendered purposeless if it could not restrain the other branches of government by the framework established. Accordingly, this decision begins with a description of the seventeenth amendment and its inherent implications. The seventeenth amendment permits state legislatures to empower governors to pick successors for senate vacancies until there is an opportunity for the state to have an election for replacement. Accordingly, the Illinois state legislature enacted statutes articulating procedures to complying with the seventeenth amendment. Thus, the judicial branch is responsible for interpreting (defined as: stating the meaning of) the constitution and statutes to assure (a) that the statutes are consistent with the constitution, and (b) that it is clear how to apply the statute in a given situation. Like most decisions, this decision relies on prior judicial decisions in its analysis. Hence, one unfamiliar with reading decisions should appreciate the role of citations to prior decisions in the analysis of this issue. In the interest of consistent and reliable judicial making, courts treat past decisions (precedent) as generally binding when that precedent is not contrary to the underlying statute. This case also provides an interesting deviation from the normal process of relying on precedent. Here, the court adopts an opinion by the state attorney general on a matter where there is no precedent available. The court points out opinions by attorney generals are not binding—but they are entitled to “considerable weight.” The Illinois state legislature enacted a statute that provides for commissions and for appointments. For commissions, the Illinois Secretary of State is required to affix the state seal on commissions, and for appointments, the Illinois Secretary of State is only required to make a register of all appointments. This legal distinction is the heart of the decision by the Illinois Supreme Court, namely that Illinois Governor Rod Blagojevich appointed Roland Burris to the role of Senator, he did not issue a commission. Therefore, the duty of the Secretary of State to affix the seal on commissions is not applicable. Accordingly the appointment was affected when made by the Governor. Although this logic makes the analysis appear straightforward and obvious, had this distinction been completely obvious to the parties, Burris would not have brought suit demanding the Secretary of State sign the appointment as if it were a commission. (2) The Role of the Judicial Branch in Possibly Ordering a Member of a State’s Executive Branch to Take a Particular Action As described above, courts engage in a process called judicial review, namely determining whether a statute is constitutional. Analogous to the concept of judicial review is a writ, namely an order of a court for an executive to take action in some manner. We as citizens are often familiar with this in the criminal context without giving it much thought, namely that a judge in the judicial branch of government has authority to tell employees of an executive branch (in some situations police officers and in this situation the state secretary of state) how and what to do. Alleged criminals are released, taken into custody, awarded money, deprived of money by members of employees of the executive branch—at the instruction by members of the judicial branch. This case goes one step further, providing an illustration of the expression “government of laws, not of men.” In this case, one member of the Illinois executive branch (Secretary of State Jesse White) disagreed with actions taken by another member of the Illinois executive branch (Governor) and thus refused to sign off on the appointment, as requested, namely refused to sign the appointment paperwork. In this case, the court determined that no signature was required to effect the appointment. However, had one been required, the court might have instructed one member of the state’s executive branch to comply with instructions by another member of the executive branch. Alternatively, the court might have determined that the secretary of state had discretion to approve the appointment. In either case, this case is illustrative of the judicial branch’s power to give binding instructions to the other braches of government concerning how to use their power. Those who have familiarity with our legal system may know a term: political question. Courts are only obligated to answer legal questions, not political questions. (3) The Court's Unwillingness to Overstep its Bounds, Thereby Achieving the Same Result In this case, the Illinois Supreme Court was asked to require the Secretary of State affix the state seal on the appointment. The result was to determine that the appointment was effective upon the governor’s actions, and that action by the Secretary of State was not necessary. Arguably, the court would have achieved the same result had it ordered the Secretary of State to affix the state seal, which is what the plaintiff wanted. In some ways, the court followed a path distinct from that sought by either party. It refused to require the Secretary of State to affix the seal on the appointment. It also refused to give the Secretary of State any discretion regarding approval of the appointment. In fact, had the Senate leadership decided that to nevertheless insist on certification by the a signature by the Secretary of State, Burris would not have been in a better position after the court decision. This case could have gone to the United States Supreme Court on whether the Senate has discretion to establish rules for appointments beyond what is legally required in the respective states. . Thus, this case illustrates the limits courts put on themselves in terms of resolving conflicts. This court does not actually provide any guidance to the parties as to whether Burris should be in the senate. Its sole decision is that its hands are tied because Burris is seeking a result the court is not authorized to enforce. The mechanism is very noteworthy, namely, to analyze the language of the text of the law to determine what the law means and what the law actually requires. The concept of “political question” may be applicable here. It may be the custom for the secretary of state to affix the seal on appointments, just as he does for commissions. That custom could have political significance. This court does not address this question so we don’t know. And frankly, like any court decision, I am sure that one could analyze it and derive multiple different results and different legal issues that weren’t addressed. However, I think this case decision is uniquely positioned for one to appreciate the role of the courts in refereeing the other branches of government—and framing how legal analysis actually works.