No. 107816

IN THESUPREME COURT OF ILLINOIS

ROLANDW. BURRIS,LAWRENCEA. PERLMANand JOHN RUFF,

)))))))))))

JESSE WmTE in his official capacity as )THE ILLINOIS SECRETARY )OF STATE, )

))))

Petitioners,

v.

FILEDJAN -6 2009

Respondent.SUPREME COURTCLERK

PETITIONERS' MOTION FOR LEAVE TO FILE A SUPPLEMENTALMEMORANDUM

NOW COME Roland W. Burris, Lawrence A. Perlman and John Ruff,

(hereinafter "Petitioners") by and through their attorneys, the law fIrm of Gonzalez,

Saggio and Harlan, L.L.C. and pursuant to Dlinois Supreme Court Rules 361(g) and

381(a), move this Court to file a Supplemental Memorandum herein.. In support of their

Supplemental Motion, Petitioners state as follows:

On January 2, 2009, Petitioner filed a Motion to Accelerate Consideration of

Their Motion for Leave to File A Complaint for Writ of Mandamus and To Accelerate

Consideration of Petitioners' Complaint for Write of Mandamus ("Motion to

Accelerate"). Since the Motion to Accelerate, three events have taken place which lend

greater urgency to the situation and demonstrate the detriment caused by the position

taken by Secretary White. Those circumstances are set forth in the attached

- -

Supplemental Memorandum In Support of Motion to Accelerate ("Supplemental

Memorandum") which Petitioners believe should be brought to the attention of the Court.

For those reasons, Petitioners respectfully request leave to file the attached Supplemental

Memorandum.

WHEREFORE, in view of the foregoing, Petitioners request that this Court grant

the instant Supplemental Motion and accept the Supplemental Memorandum.

Dated this 6th day of January, 2009.

GONZALEZ, SAGGIO AND HARLAN, L.L.C.

GONZALEZ, SAGGIO AND HARLAN, L.L.C.35 East Wacker Drive, Suite 500Chicago, lllinois 60601312-566-0040

No. 107816

IN THESUPREME COURT OF ILLINOIS

))))))))))

JESSE WHITE in his official capacity as )THE ILLINOIS SECRETARY )OF STATE, )

))))

ROLANDW. BURRIS,LAWRENCEA. PERLMANand JOHN RUFF,

Petitioners,

v.

Respondent.

NOTICE OF FILING

To: Jesse WhiteSecretary of State100 West Randolph, Fifth FloorChicago, Illinois 60601

PLEASE TAKE NOTICE that on the 6thday of January, 2009, I filed the original andfive (5) copies of the attached MOTION FOR LEAVE TO FILE ASUPPLEMENTAL MEMORANDUM IN SUPPORT OF ROLAND BURRIS'MOTION TO ACCELERATE.

One copy is hereby served upon you.

lip S.Gonzalez, Saggio and Harlan, L.L.C.35 East Wacker Drive, Suite 500Chicago, Illinois 60601(312)236-0475

B

STATE OF ILLINOIS )))

SS.COUNTY OF COOK

PROOF OF SERVICE

The undersigned, being first duly sworn upon oath, deposes and states that on January 6,2009, he caused one (1) copy of the MOTION FOR LEAVE TO FILE ASUPPLEMENTAL MEMORANDUM IN SUPPORT OF ROLAND BURRIS'MOTION TO ACCELERATE to be served upon the below-named person in hisofficial capacity as Secretary of State by hand delivery to the General Counsel of theIllinois Secretary of State.

Jesse WhiteSecretary of State100 West Randolph, Fifth FloorChicago, Illinois 60601

The undersigned, being first duly sworn upon oath, deposes and states that on January 6,2009, he mailed one (1) copy of the MOTION FOR LEAVE TO FILE ASUPPLEMENTAL MEMORANDUM IN SUPPORT OF ROLAND BURRIS'MOTION TO ACCELERATE to be served upon the below-named persons via the U.S.Postal Service.

See attached Service List.

a:F1C1AL SEAL

SlNTHIA VON OHI.EN

NOrMY PIaIC. STATEOF ILLINOISMYCOIIISSDt EXPIREs:01I1crt12

-

No. 107816

IN THESUPREMECOURTOF ILLINOIS

)))))))))))

JESSE WHITE in his official capacity as )THE ILLINOIS SECRETARY )OF STATE, )

))))

ROLANDW. BURRIS,LAWRENCEA. PERLMANand JOHN RUFF,

Petitioners,

v.

Respondent.

SUPPLEMENTAL MEMORANDUM IN SUPPORT OFMOTION TO ACCELERATE

INTRODUCTION

On January 2, 2009, Petitioners, Roland W. Burris ("Mr. Burris"), Lawrence A.

Perlman filed a motion ('Acceleration Motion') asking this Court to accelerate the

decision on Motion for Leave to File a Complaint for Writ of Mandamus ('Motion for

Leave') and also asking this Court to accelerate its consideration of Mr. Burris'

Complaint for Writ of Mandamus. The Acceleration Motion was based upon the urgent

nature of the matter at hand, particularly the imminent swearing in ceremony before the

United States Senate on January 6, 2009. Since the filing of the Acceleration Motion, a

- - ---

number of events have transpired which underscore the urgency of this matter. Plaintiffs

would like to bring these matters to the attention of the Court and states as follows:

1. The United StatesSenate Has RejectedMr. Burris' Credentials ThisMorning BasedUpon the Lack of Secretary White's Signature

On January5, 2009,the Chiefof Staffto the Governorof lllinoishanddelivered

Mr. Burris' Certificate of Appointment ("Certificate") to the Secretary of the Senate. The

Secretary is the officer responsible under Rule n of the Senate's Standing Rules to accept

the Certificate and place it in a book with all other certificates of election and

appointment. While she retained the Certificate, the Secretary declined to enter it into the

Senate's certificate book.

The 111th Congress of the United States convened this morning. Mr. Burris

appeared to take his seat as the junior Senator from lllinois. He was escorted to the office

of the Secretary of the U. S. Senate, Nancy Erickson., where they met with Terrance W.

Gainer, the Sergeant at Arms and Doorkeeper of the U. S. Senate. Ms. Erickson further

advised Mr. Burris that she had refused and would continue to refuse to enter Mr.

Burris's Certificate of Appointment in the records of the Senate, on the purported ground

that it was not countersigned by the lllinois Secretary of State. Ms. Erickson advised Mr.

Burris that he would not be permitted to take the oath of office as Senator, and Mr.

Gainer advised Mr. Burris that he would not be permitted on the floor of the Senate. This

chain of events is supported by the Affidavit dated January 6, 2009 which is attached

hereto as Exhibit A.

As Petitioners pointed out in their Motion for Leave, Secretary White's refusal to

execute the Certificate of Appointment is ministerial and thus irrelevant to its legal

validity. This is true because both the 17thAmendment to the U.S. Constitution and 10

2

--

ILCS 5/25-8 require nothing more than the signature of Governor Blagojevich in order

that Mr. Burris' appointment becomes effective. As was also indicated in the

Acceleration Motion, however, Petitioners anticipated that Secretary White's refusal to

sign the Certificate could create problems in the future. The Senate officials' refusal to

enroll or admit Mr. Burris today confirms this prediction and underscores the urgent need

for this Court to act.

2. Secretary White Has Signed and Af11xedthe State Seal to the Certification ofElection to Fill the Congressional Seat Vacated by Rahm Emanuel

On January 5, 2009, Secretary White executed a certificate for a special

election to fill the seat vacated by former United States Representative Rahm Emanuel

See signed certificate of special election attached as Exhibit B. Secretary White's action

in confirming this official act by Governor Blagojevich is entirely inconsistent with his

position on the Burris Certificate of Appointment and demonstrates the arbitrary and

illegal nature of his conduct.

As set forth above, it is the 17thAmendment of the U.S. Constitution that allows a

state legislature to empower its governor to make an appointment for a senate seat which

has been vacated mid-term. The corresponding provision concerning filling of vacancies

in the House of Representatives is set forth in Article I, Sec. 2, of the U.S. Constitution:

When vacancies happen in the Representation fromany state, the executive authority thereof shall issue writsof election to fill such vacancies.

The U.S. Constitutional authority granted to the Governor which authorizes a special

election is no different than that which authorizes an appointment to a vacant Senate seat.

Secretary White's actions under the lih Amendment to the Constitution must be

consistent with his actions under Article I, Sec. 2 of the U.S. Constitution. Thus, not only

3

is this matter urgent, but it is now clear that an extraordinarily arbitrary and unlawful

process is afoot.

3. Mr. Burris Has Submitted An AffidavitWhich EstablishesHisBona Fides

By refusing to sign Mr. Burris' Certificate of Appointment, Secretary White

implicitly impugns the nature of Mr. Burris' appointment. Mr. Burris, however, meets all

of the necessary constitutional qualifications and his reputation in this State is

impeccable. Moreover, no one has suggested that there was anything illegal or "tainted"

with respect to the specific act by which he was appointed. To set the record straight,

however, we attach for the Court's review an Affidavit of Roland W. Burris in which he

details the circumstances surrounding his appointment. See Affidavit of Roland Burris

attached as Exhibit C. The aforesaid Affidavit was submitted to the Special Investigative

Committee of the Dlinois House of Representatives. Ultimately, it will be established

that his appointment was free of taint and entirely lawful. At this point, however, Mr.

Burris, a Senior Statesman of Dlinois, with impeccable credentials, is being unlawfully

impugned by the Secretary of State, notwithstanding the entirely lawful nature of his

appointment.

When thus viewed, and in the context of (1) the Senate's refusal to accept Mr.

Burris' credentials; and (2) Secretary White's arbitrary action in affirming Governor

Blagojevich's steps to fill former Representative Emanuel's vacancy while refusing to

affirm the Certificate of Appointment for Mr. Obama's vacancy, consideration of Mr.

Burris' Complaint for Mandamus takes on an even greater urgency.

WHEREFORE, in view of the foregoing, Petitioners request that this Court

accelerate, to as soon as practically possible, its consideration of Petitioners' Motion for

4

Leave To File A Complaint for Writ of Mandamus. Should the Court grant Petitioners'

Motion, Petitioners also request that this Court accelerate its consideration of Petitioners'

Complaint for Writ of Mandamus, so that the citizens of the State of lllinois can

immediatelybe fully represented in the United States Senate.

CONCLUSION

For the foregoing reasons, Petitionershereby request that this Court accelerate its

actions in this matter.

Dated this 6thday of January, 2009.

Timothy W. Wright, Esq.Emmitt C. House, Esq.Phillip Holloway, EsqGONZALEZ SAGGIO & HARLAN LLP35 East Wacker Drive, Suite 500Chicago, IL 60601(312) 566-0040 - Phone(312) 566-0041 Faxphillip hollowav@gshllp.com

---

GONZALEZ SAGGIO & HARLAN LLP

5

AFFIDAVIT

DISTRICt OF COLUMBIA )) ss:)CITY OF WASHINGTON

Roland W. Bunis, being duly swom upon oath, deposes and says as follows:

On January 6, 2009, I appeared at the United States Capitol to be swom as a United

States Senator from the State of lllinois in the 111thCongress which convened that day. I was

escorted to the office of the Secretary of the Senate, Nancy Erickson, where I met with Ms.

Erickson, Terrance Gainer, Sergeant at Arms and Doorkeeper of the Senate, and others. I was

informed by Ms. Erickson that she had not accepted and would not accept the Certificate of

Appointment signed by lllinois Governor Rod Blagojevich on the ground that the Illinois

. . Secretaryof Statehadnot countersigned'thecertificateand affixedthesealof the State. Ms.

Erickson stated that Standing Rule n of the Senate requires such a countersignature and seal.

Ms. Erickson and Mr. Gainer further stated that because of the lack of a countersignature and

seal by the Illinois Secretary of State, I would not be allowed to take the oath as a Senator, and

would not be allowed to enter the floor of the Senate.

FURTHER AFFIANT SAYETHNOT

. .,' ..Wenona F.BrownNotary Pubnc, DIstrict of CotmnbtaMy Commfsslon expires 1111412011

,. -0 .'. {-. f". .. ~.'.". ~.

~ .~ "0. ...0; '

EXHIBITDCOl:517036.l

I A

To the County Clerk of COOK County, Greetings

WHEREAS, Because of the resignation of the Honorable Rahm Emanueleffective January 2, 2009, a vacancy now exists in the Office of theRepresentative of the United States Congress for the 5'. CongressionalDistrict of the State of IUlnols.

Now, THEREFORE, I, ROD R. BLAGOJEVlCH, Governor of the State ofIllinois, do hereby command you to cause a SPECIAL ELECTION to flllsuch vacancy

to be held In the County of COOK on TUESDAY,April 7, 2009,and a primary election with respect tosuch special election to be held, if qecessary, onTUESDAY, March 3, 2009 for each of which yonwill give notice, In confor.mity with the Statutes Insuch case made and provided.

In Testimony Whereof, I bave hereunto set my handand caused the Great Seal of the State of [lUnols tobe affixed.

Done at tbe Capitol, in the City of Springfield, this5'. day of January, in the Year of Our Lord twothousand and nine, and of tbe State of illinois theone bundred and ninetieth.

Secretary of State Governor

....-

EXHIBIT

13

__ _.0- _+ -- - ..--------

STATE OF ILLINOIS

COUNTYOF COOK

AFFIDAVIT OF ROLAND W. BURRIS

I, ROLANDW. BURRIS, being first sworn on oath, depose and state that thefollowingis true to the best of my knowledgeand recollection:

1. Iam the Senator-Designateforthe State of Illinois.

2. Iam a resident ofthe State ofIllinois,at least 30 years of age and a natural-borncitizenof the UnitedStates of America.

3. On Friday, December 26, 2008, I received a telephone call from SamAdams,Jr., ("Mr.Adams,Jr.")an attorneyemployedbyRodBlagojevich,theGovernorof the State of Illinois("GovernorBlagojevich").

4. Duringthe December26, 2008telephone conversationwithMr.Adams,Jr.,he asked ifhe couldcome to myresidence to discuss a matter withme and Iagreed.

5. At my residence Mr. Adams Jr. asked if I had an interest in acceptingGovernor Blagojevich'sappointment to fillthe Senate seat left vacant byPresident-ElectBarackObama. Iresponded to Mr.Adams, Jr. that Ineededa couple ofdays to conferwithfriendsand familyand that Iwouldinformhimof my decision withina couple of days.

6. On Sunday, December28, 2008, Mr.AdamsJr. contacted me bytelephoneand then visited me at my home to ask me if Ihad reached a decision withrespect to accepting or rejectingGovernorBlagojevich'sappointmentto theUnitedStates Senate.

7. ItoldMr.AdamsJr. that, shouldGovernorBlagojevichofferthe appointmentto the UnitedStates Senate, Iwouldaccept.

8. On Sunday, December 28, 2008, at approximately4:00 p.m., GovernorBlagojevichpersonallycontactedme bytelephone,praised mypublicservicerecord and offered to appoint me to the UnitedStates Senate to filltheSenate seat leftvacant by President-ElectBarackObarna.

9. During the December 28, 2008 telephone conversation with GovernorBlagojevich, I formallyaccepted the appointment to the United States

EXHIBIT

I c

Senate. Govemor Blagojevichthen indicated that he would formallyannouncemy appointmentat a pressconferencewithinthe next couple ofdays. The telephonecall thenended.

10. Other than greetings, GovernorBlagojevlch praising my public servicerecord,hisofferandmyacceptanceof theappointmentto the UnitedStatesSenate,and the discussionof the future pressconferenceto announcemyappointment, Governor Blagojevichand I discussed no other topics orsubjectmatter duringthe December28, 2008 telephoneconversation.

11. Priorto the December26,2008 telephonecall from Mr. Adams, Jr., therewas not any contact betweenmyself or any of my representativeswithGovernor Blagojevich or any of his representatives regarding myappointmentto the UnitedStatesSenate.

FURTHER AFFIANT SAYETH NAUGHT.

~t.::>~~ROLAND W. BURRISSenate-Designate for the State of Illinois

Subscribed and sworn to me

t~ ~ of January, 2009JJ(i IIII/)IxNOTAR?PUBLIC -

OFFICIAL SEALDARRYL TOM

Notary Public -State of "finolsMy Commission expires Jun 18, 2012