Wednesday, January 7, 2009

Seating Burris

Yesterday Illinois Senator Designee Roland Burris was not allowed to take his seat in the United States Senate. Nancy Erickson, the secretary of the Senate would not accept his appointment letter because it was not in compliance with Rule II of the Senate. That rule requires the appointment letter to be signed by both the governor and the Illinois Secretary of State. The Illinois Secretary of State, Jesse White, refuses to sign because of the ongoing investigation of Governor Blagojevich. A review of these events is set out quite nicely in this morning's New York Times here.

Although it seems clear that a deal might be in the offing and Burris will be allowed to take his seat, his lawyers indicate that one of their options is to head back to Illinois. What is their remedy in the Illinois courts?

The fact is, this scenario has a historical ring to it. How do you force a clerk or government official or even a judge to issue a certificate of election, or appointment, or whatever, i.e., how do you force someone to perform a ministerial act? Check out Marbury v. Madison. The remedy is as old as the Judiciary Act of 1789 (and older) - you petition the court for a Writ of Mandamus to force the issuance of the certificate.

With Senator Diane Feinstein on his side, it seems unlikely that Burris will have to go so far. But the remedy is there for him to use.

No comments: