'It is extremely doubtful that litigation can resolve this conflict. . .'
can constitutionally advise municipal and county officials of the meaning of the local governmental provisions of the State constitution, as well as pending or enacted State legislation related to such constitutional provisions, but such departmental counsel cannot constitutionally advise his own department head — or the Governor or other executive officers or agencies — in respect to the same matters. Perhaps there is a profound logical basis for this distinction: if there is, it has not been convin cingly revealed in either the judicial decisions or the constitutional history relating to the creation and designation of the powers of the Office of the Attorney General.
The fact is that neither the judicial precedents nor the constitutional history support the categorical positions of the Governor or the Attorney General.
No explicit Court decision
No Illinois Supreme Court decision has explicitly denied or affirmed the Governor's constitutional authority to employ house counsel in an advisory capacity.
A decision that the Secretary of State cannot employ lawyers to render ad visory opinions to State officers under a given law, as precedent, is limited to that factual and legal issue. Decisions which define the Attorney General's powers in all inclusive generalized terms, e.g., Fergus v. Russell, make no comment on the Governor's power to employ lawyers to draft legislation or executive orders, or interpret laws or pending legislation and advise him of their legal and constitutional implications. Bakalis should set to rest any notions that the Russell and Stein for mulations are sacrosanct and definitive constitutional doctrines which make the Attorney General the "sole advisor of the executive officers" empowered "to conduct the law business of the State, both in and out of the courts." At the same time no legal precedent affirms or denies the right of the Governor to send his own lawyers into court, or to refuse the Attorney General access to the legal files of the State, in disregard of the Attorney General's constitutional and commonlaw powers.
Litigation is not a simple solution
Despite the challenges and counter challenges by both parties to take the issue to the Court, it is not likely that the dispute can be so simply resolved. The Courts do not consider abstract or hypothetical issues; they normally require a concrete and definable controversy. The real issues are many and complex. The terms "legal services" or "law business" or "legal advice" comprehend an indeterminate number of variables.
The threshold question is whether extended litigation would serve the public interest. At best, the result would be a piecemeal resolution of the controversy which, in the light of prior experience, will create its own ambiguities. The underlying asumption that a lawsuit, or two or three, will settle the matter for good is fallacious. As a matter of policy it is even more questionable whether every exercise of authority requiring a lawyer's skill should be made the subject of a judicial controversy.
In the State's long history, conflicts between the Attorney General and the Governor respecting the former's constitutional authority have been exceedingly rare, even when as now each is of different political persuasion. No prior conflict has had the dimensions of the present one. Notwithstanding, there is little reason why the present confrontation cannot be resolved by administrative accommodation and agree ment within the broad constitutional standards which reflect the legitimate areas of automony applicable to each office. Such has been the history in the past, and the public interest, despite assertions to the contrary now advanced by the Attorney General, has not suffered seriously or even unduly by this approach.
Arrangements for EPA
In the vital environmental protection area, perhaps the principal focal point of the current dispute, after an initial period of sparring between the Environmental Protection Agency and At torney General Scott concerning the respective roles of house counsel and assistant attorney general, a series of informal and formal arrangements were entered into between Attorney General Scott and the EPA, first with Gov. Richard B. Ogilvie and later with Gov. Walker. If further accommodation is desirable to give the Attorney General a greater role in the functions now performed by house counsel, it should be worked out by mutual consent of the parties.
The conflict in respect to other executive departments and agencies can not, with perhaps few exceptions, be as complex and controversial as in environmental protection. Resolution by administrative agreement is well within the realm of possibility given the good will and the desire of the contending parties to solve their differences. Infact, other constitutional executive of ficers, e.g.. Secretary of State, Comptroller, State Treasurer, employ house counsel and other lawyers in ways not significantly different than those in the Governor's office and in agencies under his jurisdiction, with no apparent serious objection or concern by At torneys General, past or present.
It is extremely doubtful that litigation can resolve this conflict between the Governor and the Attorney General. It is more likely that government and the public interest would suffer by long and frequently inconclusive constitutional interpretations by the courts. Administrative accommodation appears to be a better solution.
Illinois Issues/January 1975/11