BY ANN LOUSIN: Parliamentarian of the Illinois House of Representatives in the 78th General Assembly, she served on the staffs of both the General Assembly and the Constitutional Convention. She is now assistant professor at John Marshall Law School, Chicago.
More than 100 official interpretations of the new Constitution have been issued since 1971. They have had an undramatic but widespread effect on state government and range from issues such as Crosstown to legislative action on the Equal Rights Amendment. After Scott's rulings on ERA were disputed, a test case in federal district court adopted the position he had taken
AN OPINION issued in the summer of 1975 by Attorney General William J. Scott on Chicago's controversial Cross-town Expressway catapulted into public view the significance of the attorney general's role in interpreting the 1970 Constitution. Scott's opinion, which has no legal force but much influence, stated that the home rule and intergovernmental cooperation provisions of the new Constitution permitted Chicago to provide matching funds to qualify for federal assistance in building the Cross- town. Scott's interpretation of the knotty Crosstown question is one of more than 100 official opinions issued on the 1970 Constitution since that document became effective in July 1971. These opinions have had an undramatic but widespread impact on the operation of state government during the transition period.
An "official opinion" is a memorandum written by the Attorney General's Office. It is usually written at the request of a government official, in which case the opinion is issued as a letter from the attorney general to that official. The opinions on the new Constitution usually concern the effect of the new charter on existing statutes. The attorney general will not offer advice on any matter unrelated to the requesting official's business nor discuss issues which are before the courts. Normally he will issue opinions on the Constitution only to state's attorneys, elected state officers, state departments, boards and commissions, the speaker and minority leader of the House of Representatives, the president and minority leader of the Senate, and the chairmen and minority spokesmen of legislative committees and commissions. State's attorneys make about half the requests and heads of executive agencies and departments make most of the others,
The most important aspect of the opinions is that they are not legally binding. They are purely advisory and need not be followed by anyone, even the people requesting them. The attorney general cannot "hold" a statute unconstitutional as a court does; he merely states that, in his professional opinion, a statute will be held unconstitutional by a court.
Since the opinions are not binding, why are these so highly regarded? One reason is the method of writing opinions, which assures that people of differing viewpoints contribute to the final product. The first step in the writing of an opinion is its assignment to one of the lawyers in the opinion writing division of the attorney general's Springfield office. The division chief transfers the request to one of the other attorneys, but he coordinates the drafting. The attorney responsible for the opinion does extensive research in the office library. Although the staff does not include specialists in all areas, a fairly experienced lawyer may develop expertise in a certain field and be assigned most opinions involving those questions. Inevitably, staff attorneys sometimes discuss requests with each other.
When the lawyer has completed his first draft of an opinion, it is forwarded to Assistant Attorney General John Hastings in the attorney general's Chicago office. Hastings critiques all opinions for style and content and sends those concerning the Illinois Constitution to Samuel W. Witwer, a special assistant attorney general. Witwer, who served as president of the Sixth Illinois Constitutional Convention, is certainly the obvious choice to be a special adviser on Illinois constitutional problems. He completes the chain by sending his comments to the opinion writing division. By this time, the attorneys have usually arrived at consensus, but in the case of a dispute the attorney general himself resolves the matter.
20 / April 1976 / Illinois Issues
The final draft is sent over the attorney general's signature to the official requesting it and copies are also sent to any other interested persons. It is a tribute to the recognition accorded the opinions that about 50 people, primarily government lawyers, but including others, receive all opinions automatically. The attorney general issues a digest of all opinions each month and many people, including news services, often request a copy of particular opinions, Anyone interested in a certain topic may request that all opinions on that subject be sent to him. At the end of each year the attorney general also issues selected opinions in a volume available in law libraries.
A second reason for the weight of the opinions is the desire of many government officials to have a tentative arbiter of constitutional issues. Most serious Institutional issues, of course, are eventually decided by the Illinois Supreme Court after long and expensive litigation. However, most day-to-day decisions on the way the new Constitution operates - or should operate are made by government officials who have no court decisions to guide them. Each government lawyer has his own pet interpretation of the new parts of the Institution. These interpretations are individualistic as the lawyers holding them.
Moreover, many decisions are made in the bustle of the political arena. Attorneys for any side are partisans either for a given position or for a political party. Although the attorney genera! is himself an elected partisan officer (currently a Republican), there has been relatively little complaint that these official opinions have been slanted toward partisan political ends.
This is not to say that the opinions are free of criticism. It is a mark of the serious consideration which they are accorded that an opinion on legislative procedure or executive-legislative relations almost invariably sparks debate. It is especially difficult to interpret legislative procedure under the new Constitution because the courts have traditionally refused to enter into the "political thicket" of legislative matters on the grounds of the separation-of-powers doctrine. While the courts appear to be rapidly abandoning this position, no one is anxious to submit legislative questions to the lengthy process of adjudication. On the other hand, the presiding officers of the General Assembly have discovered that it is often valuable to be able to cite the opinion of an outside authority, such as the attorney general, to arbitrate a dispute.
Two outstanding examples of the legislature's reliance on these opinions are the controversies on the reduction veto and ratification of amendments to the U.S. Constitution. The new reduction veto power allows the governor to reduce an "item." the amount of money appropriated for a given purpose. 'In Opinion S-630 (October 1973) the attorney general stated that Gov. Dan Walker's purported "reduction" of the flat grant rate to junior colleges from $18.50 per semester hour to $17.61 per semester hour was an invalid use of the reduction veto, since the governor had reduced the rate at which an appropriation was paid, not the item of appropriation itself. Since that date, the presiding officers of both houses have ruled out of order any motion in respect to that type of purported reduction veto. The legislators, and apparently even the executive branch, have accepted the ruling with virtually no objection.
The other example is the dispute over the legislative vote necessary to ratify a proposed amendment to the U.S. Constitution. The only proposed amendment affected so far has been the controversial Equal Rights Amendment (ERA). When it was first proposed for ratification in 1972, a dispute arose over whether three-fifths of each house or only a majority of those elected to each house were needed to ratify. Section 4 of Article XIV of the 1970 Constitution states that three-fifths are necessary. Proponents of ERA contended that no state constitution could dictate the manner by which a state legislature could ratify a federal amendment. The new Constitution also said that no federal amendment could be proposed for ratification until a new session of the General Assembly met after the date Congress proposed the amendment to the states. This meant that ERA could not be put to a vote until January 1973.
At the request of then Speaker of the House W. Robert Blair (R., Park Forest) and then Sen. Esther Saperstein (D., Chicago), who was sponsor of ERA, the attorney general issued Opinions S-455 and S-456, advising that both state constitutional restrictions were invalid and that the General Assembly could ratify ERA immediately by a vote of the majority of those elected to each house. When ERA was called fora vote in the House, one of the central issues in floor debate was whether the legislature should follow the untested Illinois constitutional provision or the attorney general's opinion. On that occasion, the speaker ruled that he intended to follow the opinion which he himself had requested.
ERA failed on that vote. Every
successive time it has been reintroduced,
however, the attorney general's opinion
has been a matter of controversy. On
April 2, 1973, the attorney general
issued opinion S-571, advising Speaker
April 1976 / Illinois Issues / 21
If the state's attorney is not certain of an answer, he will often ask the attorney general his opinion
Blair that the legislative rules could require a three-fifths vote for ERA, even though the Constitution could not. When ERA was called two days later, there was a heated debate over the anomaly created by the two opinions. Since the rules required a three-fifths vote, ERA failed again.
In order to settle the issue conclusively, ERA backers brought a test case in federal court. The attorney general, as attorney for the state government, defended the legislature and presented an argument in defense of both of his opinions. On February 20, 1975, a three-judge federal panel decided the case, Dyer v. Blair, 390 F. Supp. 1291 (1975), holding that both opinions were correct: the General Assembly, by rule, can exact requirements which a state constitution cannot. The court's opinion cites the two attorney general's opinions extensively. The federal courts vindication of the attorney general's opinions will probably increase their status in the legislators' eyes.
Occasionally an elected state executive officer will ask the attorney general for an opinion on the new Constitution. (Since most inquiries from the governor are confidential, it is impossible to estimate their influence.)
Opinions on the Illinois Constitution
|
Year |
No. of opinions issued |
No. on Illinois Constitution |
Per cent |
|
1971 |
130 |
5 |
3.3 |
|
1972 |
166 |
21 |
12.67 |
|
1973 |
125 |
18 |
14.3 |
|
1974 |
179 |
18 |
10.0 |
|
1975 |
170 |
12 |
7.1 |
|
Total |
770 |
74 |
9.5 |
Source: Scott, "The Role of Attorney General's
Opinions in Illinois," 67 Northwestern L.R. 643,
654 (1972) and the Office of the Attorney General.
The comptroller, for instance, sometimes asks for an opinion on the constitutional underpinning of requests for warrants or payments to be issued by him. When the attorney general advises that issuing a given warrant would be unconstitutional, the comptroller refuses to issue it. Occasionally this refusal sparks litigation.
In 1974 the attorney general advised Comptroller George W. Lindberg that the acting superintendent of the State Fair Agency had no authority to hold office and therefore could not authorize any vouchers. Comptroller Lindberg thereupon refused to issue any warrants pursuant to those vouchers, and the issue went to circuit court in Springfield. Judge J. Waldo Ackerman issued a temporary injunction ordering the comptroller to pay warrants for that agency so that State Fair Agency employees could be paid. Ackerman, however, declined to rule on the constitutional issue at the time (see Paul H. King v. George W. Lindberg, Comptroller of the State of Illinois, Docket No. 676-74, 7th Judicial Circuit, Sangamon County, Dec. 20, 1974).
The typical opinion on the new Constitution is far less controversial. Most state's attorneys and agency heads request advice on relatively mundane matters, usually questions which have arisen in regard to a proposed action or ordinance. For example, a county board may ask its state's attorney whether the county has the constitutional and statutory power to pass a proposed ordinance. If the state's attorney is not certain of the answer, he often asks the attorney general for an opinion. If the state's attorney and attorney general agree, a county board will usually follow their advice.
The role of the attorney general's opinions in implementing the Constitution is increasing in significance, if not in numbers, as the table shows.
Besides the opinions directly on the Constitution, there are so many other opinions involving constitutional questions, at least collaterally, that a better estimate would be almost twice as many. It is fair to say that about 20 per cent of the opinions deal substantially with a state constitutional issue. The number and influence of these opinions will probably remain constant for the next decade, until the new charter becomes firmly rooted in court decisions and custom. ˛
22 / April 1976 / Illinois Issues