'... neither the judicial precedents nor the constitutional history supports the categorical positions of the Governor or the Attorney General'

business its handling, under the language of the Supreme Court quoted above (Fergus v. Russell) is the exclusive prerogative of the Attorney General under his inherent common law powers" (John W. Freels, "Powers of the Attorney General of Illinois," Chicago Bar Record, Dec., 1971, 128). (Emphasis supplied)

However, in the same article the author points out that the Fergus case left standing an appropriation of $15,000 to cover the expenses of the Insurance Superintendent for prosecutions of violations of the
insurance laws. He concludes:

"The Fergus case thus upheld the right of the Insurance Department, the Rivers and Lakes Commission and the State Board of Pharmacy to conduct investigations and to do other preliminary work leading up to prosecutions and pay the expenses thereof (Freels, 126).

It is difficult, if not impossible, to reconcile these two analyses. One appears to support the right of agencies to allow their house counsel to conduct preprosecution legal work, and the other analysis appears to reserve this right solely to the Attorney General.

Relies on Stein v. Hewlett
The Attorney General also relies on Slein v. Howletl, a 1972 decision, to support his view that only his office can perform legal services of a "house counsel" nature for State officers. In that case, the Court held invalid a provision of the Illinois Governmental Ethics Act that authorized the Secretary of State to give legal opinions to State officers respecting the Act's coverage and meaning and to employ lawyers for that purpose. The decision appeared to take the Fergus principle in its widest sweep, though the Court itself recognized that that principle had been criticized and in fact modified in The People v. Toll Highway Commission, 3 111. 2d 218 (1954). In the latter case a statutory provision authorizing a State administrative agency to employ counsel was held valid because the appointee would be subject to the control and supervision of the Attorney General and serve only at his pleasure.

In Slein, the Court determined that the 1970 Constitutional Convention proceedings "seem to indicate a clear intent to preserve the policy of Fergus v. Russell. ..." Curiously, the opinion totally ignores the Convention debates in which the ambiguities and vagueness of the Fergus doctrine were conceded by the principal advocate of the constitutional provision dealing with the duties of the Attorney General, and ignores the advocate's assurances that the Executive Committee did not intend "and it never crossed our mind that the other executive officers could not hire attorneys as executive aides or executive assistants or technical advisors — whatever you want to call them — as they do at the present time." It was clear that supporters of the "house counsel" principle were seeking to establish a constitutional record in behalf of their position. It is also clear, however, that the Executive Committee advocate, himself an assistant attorney general, was making only a limited and cautious concession, itself the esence of ambiguity, by insisting that the "Attorney General is the legal officer for the state, and under our article we hope to keep it exactly as it is," and that the proposal is to change nothing of the law of Fergus, "but to simply keep them [the powers of the Attorney General] as they are at the present time." None of this history is mentioned in Stein.

In fact the judicial erosion of the "sole and exclusive" doctrine of Fergus began in The People v. Barren, 382 111. 321 (1943), which upheld the right of the University of Illinois to employ its own legal counsel because it is a public corporation which "is no part of the State or State Government" and its Board of Trustees, though elected in a statewide election, were not "state officers" in the constitutional sense of that term which would require the Attorney General be its legal counsel. However one views the logic of that analysis it is evident that Barrett weakens the Attorney General's claim to be the sole legal counsel for State agencies or officers.

The Governor's case
The Governor's legal contention is based primarily on the Convention history noted above concerning the employment of attorneys by executive officers as aides and advisers, and on Board of Education v. Bakalis, 54 111. 2d 448 (1973).

In Bakalis the Court sustained a provision of the School Code which authorized the Superintendent of Public Instruction "to be the legal adviser of school officers, and, when requested by any school officer, to give his opinion in writing upon any question arising under the school laws of the State." The Superintendent employed a legal adviser and eight assistant legal advisers (none of them under the direction or control of the Attorney General) who prepared and signed the opinions. The provision was challenged as a clear violation of the Attorney General's constitutional prerogatives as established in Fergus v. Russell and Slein v. Howletl. The Court held that these two cases did not apply on the ground that "school officers who receive legal advice from the office of the Superintendent of Public Instruction are not executive officers, boards, commissions or departments of State Government," citing The People v. Barrett.

The distinction is extraordinarily difficult to sustain logically. In both Stein and Bakalis State laws were to be interpreted by "house counsel" employed by State executive officers. In Stein, house counsel advised the Secretary of State who then advised State executive officers, whereas in Bakalis, house counsel in behalf of the State Superintendent of Public Instruction advised school officials. In each instance, a State executive officer was to give legal opinions affecting substantive private and public rights, powers, and duties arising under State laws, and indeed under the State and federal constitutions.

The hypothesis derived from Stein and Bakalis can be seen in this example: house counsel employed by the State Department of Local Governmental Affairs, an agency under the Governor,

10/lllinois Issues /Janunrv 1975

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