History of the Office of the Illinois Attorney General
By: Shawn W. Denney, Former Senior Counsel to the Attorney General
As the chief legal officer of the State, the Attorney General has the constitutional duty of acting as legal adviser to and legal representative of State agencies. He or she has the prerogative of conducting legal affairs for the State. The effect of this grant of power to the Attorney General is that Illinois is served by a centralized legal advisory system. EPA v. PCB (1977), 69 Ill. 2d 394.
The Office of Attorney General first came into existence at the admission of the State of Illinois to the Union on December 3, 1818. Adapted constitutionally and legislatively over the years to meet the needs of a growing State, the office has increased in size and importance and its powers have been greatly expanded since the early days of Illinois State government. This history traces the constitutional and statutory development of the Office of Attorney General from an office filled at the option of and by the General Assembly to an independent office, responsible to the electorate, with broad powers not subject to diminishment or transfer.
The Constitution of 1818, adopted on August 26, 1818, by a Constitutional Convention held in Kaskaskia, authorized the General Assembly to appoint an Attorney General and to regulate his duties by law. (Ill. Const. 1818, Schedule, ß10.) Illinois' first Attorney General was Daniel Pope Cook, who served for 11 days beginning on March 5, 1819. Attorney General Cook went on to represent Illinois in the U.S. Congress; and Cook County, created in 1831, was named in his honor. Though none served such a short term, most other holders of the office during its first three decades served for relatively short periods of time, generally one to two years. No fixed term was provided for the office until a two-year term was established by law in 1831. (Laws 1831, pp. 17-18.)
The General Assembly defined the Attorney General's duties as well as provided for the appointment of circuit attorneys in "An Act for the appointment of Circuit Attorneys, and defining their duties, and the duties of the Attorney General," approved March 23, 1819. (Laws 1819, p. 204.) Section 8 of the Act established powers specific to the Attorney General, including the duty to "prosecute on behalf of the state, all suits which may be commenced by and on behalf of the said state, and all matters relating to the revenue thereof, and all impeachments * * *." In addition, section 8 required the Attorney General to give his opinion in writing on all questions of law "relating to the public concerns of this state" to the Governor, the Auditor of Public Accounts and the State Treasurer.
The Attorney General also functioned as a circuit attorney in the circuit that he was to designate under section 7 of the 1819 Act. [In the event of a vacancy, a successor Attorney General was to reside and prosecute in the circuit of his predecessor to avoid interference with existing circuit attorney appointments.] Circuit attorneys in the remaining three circuits of the state were appointed by the Governor with the advice and consent of the Senate. Unlike the Office of Attorney General, the office of circuit attorney was not specifically provided for in the 1818 Constitution, but was created in the 1819 Act. Circuit attorneys were charged in section 3 of the Act with prosecuting "all matters and things, pleas, actions, and suits, wherein the state is a party." Under section 3 of the Act, the circuit attorneys and the Attorney General were to be commissioned by the Governor "to continue in office during good behavior."
In the provisions of "An Act supplemental to an Act entitled 'An Act for the appointment of Circuit Attorneys and defining their Duties, and the Duties of the Attorney General,' approved March 23, 1819," approved January 18, 1825 (Laws 1825, p. 178), the Attorney General was assigned the duties of a circuit attorney in the first judicial circuit, which included the counties of Peoria, Fulton, Schuyler, Adams, Pike, Calhoun, Greene, Morgan, and Sangamon. (Laws 1824, p. 119.) The remaining circuits, now numbering four, were to continue to be served by circuit attorneys appointed by the Governor with the advice and consent of the Senate.
The provisions of the 1819 and 1825 Acts were repealed by "An Act relating to the Attorney General and State's Attorneys," approved February 17, 1827, and effective February 19, 1827. (Revised Code 1827, p. 79.) In addition to continuing the responsibilities of the Attorney General as set forth in the 1819 and 1825 Acts, including the responsibility to function as circuit attorney for the first circuit, the 1827 Act, in section 2, specifically directed the Attorney General to "attend each of the terms of the supreme court, and there commence, prosecute or defend every case that the people of this state, the auditor of public accounts, the state bank or any county of this state shall in any wise be a party to, or interested in the result." The Attorney General's duty to give opinions was expanded to encompass, in addition to the Governor, the Auditor of Public Accounts, and the State Treasurer, the county commissioners' courts and justices of the peace within his circuit, the Secretary of State, and the General Assembly, or either branch thereof. In section 6, the Attorney General was given the right to call upon the State's Attorneys to assist in "the prosecution, or in the defence of any suit in the supreme court, or the trial of any impeachment which it shall be the duty of the Attorney General to attend to." [Note: The terms "State's Attorney," "circuit attorney," and "prosecuting attorney" were used interchangeably in statutes enacted prior to the adoption of the 1870 Constitution to refer to attorneys appointed or elected on the circuit level to exercise prescribed representational responsibilities. Likewise, this history, in using any of these terms, refers to the same office.]
In 1831, in section 5 of "An Act to provide for the election of auditor of public accounts, and further defining his duties," approved and effective February 14, 1831 (Laws 1831, pp. 17-18), the General Assembly spoke for the first time concerning the manner of election and term of office of the Attorney General. [This provision was reenacted in "An Act to consolidate the acts relative to the Auditor and Treasurer and election of the Attorney General," approved March 2, 1833, and effective July 3, 1833 (Revised Laws 1833, p. 103).] In that section, it was provided that the General Assembly, by joint vote of both branches, was to elect the Attorney General "whose duties shall be such as are or may be defined by law." Such election was to be made during the session of the General Assembly "commencing on the first Monday in December, 1834, and every two years thereafter."
Under the provisions of "An Act to amend an Act relative to the duties of the office of Attorney General of this state," approved and effective February 5, 1833 (Revised Laws 1833, p. 99), the Attorney General was required to "reside at the seat of government," and to "prosecute in the circuit in which the seat of government may be situate." The seat of government at the time was Vandalia, located in Fayette County, which was in the second circuit. In addition to Fayette, the second circuit included the counties of Madison, St. Clair, Monroe, Randolph, Washington, Clinton, Bond, Montgomery, and Shelby. (Revised Statutes 1829, p. 48.)
"An Act to amend an act, entitled 'An Act relating to the Attorney General and State's Attorneys'," effective February 7, 1835 (Laws 1835, p. 44), provided for the appointment of the State's Attorneys by the General Assembly rather than by the Governor. The manner of selection chosen paralleled that used for appointing the Attorney General. This Act was passed over the objections of the Council of Revision, consisting of the Governor and the judges of the supreme court, which had power under article III, section 19 of the 1818 Constitution to return a bill with objections to its house of origin for reconsideration.
In "An Act further defining the duties of the Attorney General, and for other purposes," approved and effective February 26, 1841 (Laws 1841, p. 35), the Attorney General was given the duty to "enforce the penalties of the criminal code against all persons who have or may embezzle the public money, or who may be liable for prosecution for any delinquency or default pertaining to the public revenue in his district." Further, the Attorney General was given the duty "to give information, and directions, and instructions to the prosecuting attorneys of the State, of any such offenses * * * in other parts of this State out of his district, so that prosecutions may be instituted against such offenders." This statute is as close as the Attorney General has ever come to having supervisory responsibility over State's Attorneys.
The provisions of the prior laws were codified in chapter 12 of the Revised Statutes of 1845, approved on March 3, 1845 (Revised Statutes 1845, p. 75). The General Assembly continued to appoint the Attorney General and the circuit attorneys for two year terms. The Attorney General, who was required to reside at the seat of government, continued to function ex officio as the circuit attorney for the circuit including the seat of government within its territory. The circuit attorneys appointed pursuant to this Act generally continued to be known as State's Attorneys, as they had previously been titled. (See, Revised Code 1827, p. 79; Laws 1835, p. 44.) Under the 1845 statute, the Attorney General retained the duties set forth in the 1827 statute.
The 1848 Constitution, effective April 1, 1848, made no provision for the selection of an Attorney General. During the Constitutional Convention, which met in Springfield from June 7 until August 31, 1847, language which would have created an elected constitutional office of Attorney General had been suggested by the select committee on the Judiciary for inclusion in the Judicial Article. That language provided as follows:
Charles H. Constable, an influential Whig leader, State senator and lawyer, moved to strike the section on the following grounds.
The motion prevailed and the proposed section was stricken. The office was mentioned only in section 29 of article III, which continued a prohibition contained in article III, section 25 of the 1818 Constitution against the "attorney general" or an "attorney for the state," inter alia, holding a seat in the General Assembly.
Section 28 of article V of the 1848 Constitution provided for the election, "by the qualified electors thereof," of one State's Attorney [the prosecuting attorney alluded to by Mr. Constable] in each of the [initially nine] judicial circuits of this State, such State's Attorney to serve a four-year term and to perform such duties "as may be prescribed by law." Section 28 also authorized the establishment of a system of county attorneys to function in lieu of the State's Attorneys provided for in the section, but no legislation establishing such a system was ever enacted by the General Assembly.
Under the 1845 statute, which incorporated prior laws, the circuit attorneys, of whom the Attorney General was one, ex officio, had exercised powers similar to those of the Attorney General, including the authority to "commence and prosecute [in the Circuit Courts] actions, suits, process, indictments and prosecutions, civil and criminal, in which the people of this State * * * may be concerned." (Revised Statutes 1845, p. 76 (Section 4).) Appearance before the supreme court was the prerogative of the Attorney General, who, as was previously noted, could call upon any of the circuit attorneys for assistance "in the prosecution, or in the defence of any suit in the Supreme Court." (Revised Statutes 1845, p. 77 (Section 7).)
When the Office of Attorney General ceased to exist, his representational duties, as anticipated by Delegate Constable, were assumed by the State's Attorneys, and those duties continued to be exercised by them until the recreation of the Office of Attorney General by statute in 1867. Under the provisions of an "Act to enable the auditor of public accounts to prosecute claims in favor of the state," effective January 5, 1850 (Laws 1849 (2nd Sess.), p.6), authority to conduct the State's business in the supreme court was given to the prosecuting attorney for each circuit in which a supreme court grand division was held. [Article V, section 3 of the 1848 Constitution provided for the division of the State into three "grand divisions," with supreme court terms for the first being held at Mount Vernon, the second being held at Springfield, and the third being held at Ottawa. (Ill. Const. 1848, art. V, sec. 31.) Section 6 of the same article (Ill. Const. 1848, art. V, sec. 6) provided that the supreme court "shall hold one term annually in each of the aforesaid grand divisions."] In section 4 of the aforementioned Act, the appropriate "prosecuting attorney" was directed to "attend in that supreme court to all business therein in which the state * * * may be interested." For these services, he was paid an additional $100 per annum out of the State treasury. There was, however, no statutory enactment assigning the Attorney General's advisory functions to another officer.
In 1867, the General Assembly recreated the Office of Attorney General by statute. Under the provisions of "An Act to create the office of the attorney general, and prescribing his duties," effective February 27, 1867 (Laws 1867, p. 46), the General Assembly provided for an interim appointment of the Attorney General by the Governor, with the advice and consent of the Senate, until the following election for Governor, at which time the Attorney General was to be elected by the qualified electors of the State to a four year term. (See, section 2 of the 1867 Act and Ill. Const. 1848, art. IV, sec. 2.) Robert G. Ingersoll, of Peoria, was appointed Attorney General by Governor Richard J. Oglesby on February 38, 1867. The first popularly elected Attorney General, Washington Bushnell, of LaSalle County, took office on January 11, 1869. Among the duties given to the Attorney General in the 1867 Act were the giving of opinions to the Governor, executive officers, State's Attorneys, the houses and committees of the General Assembly, the institution and prosecution of all actions, suits and complaints in favor of or for the use of the State, and representation before the supreme court in all cases of appeal.
The 1870 Constitution, effective August 8, 1870, reestablished the Office of Attorney General as a constitutional office. Article V, section 1 of that Constitution provided as follows:
Along with the other executive officers, the Attorney General was directed in section 1 to "perform such duties as may be prescribed by law." (Emphasis added.) The first Attorney General under the 1870 Constitution, James K. Edsall, of Lee County, was elected in November 1872, and took office on January 13, 1873.
The statutory powers of the Attorney General were restated in "An Act in regard to Attorneys General and State's Attorneys," approved March 22, 1872, and effective July 1, 1872 (Laws 1871-2, p. 169). Section 2 of this Act expanded on the five paragraphs contained in the 1867 Act, setting forth 12 paragraphs defining the Attorney General's duties. Section 4 of the current Attorney General Act (15 ILCS 205/4) is, in substance, largely based upon this enactment. The duties set forth in the 1872 Act included:
This Act was reenacted verbatim, effective July 1, 1874, as part of the comprehensive revision of Illinois statutory law that resulted in the Illinois Revised Statutes. (See, Ill. Rev. Stat. 1874, ch. 14, par. 4.)
The effect of the establishment of the Office of Attorney General under the 1870 Constitution, not fully recognized for several decades, was the creation of an office with broad powers to represent and safeguard the interests of the People of this State. The Attorney General has been determined, in decisions of the supreme court, to have not just those duties and powers that might be specifically prescribed in statutory enactments, but to have all those duties that appertain to the Office of Attorney General as it was known at common law. The phrase "prescribed by law" was rejected as a limitation on the Attorney General's powers to those specified by statute. The supreme court stated in Fergus v. Russel (1915), 270 Ill. 304, discussed below, that "[t]he common law is as much a part of the law of this State as the statutes and is included in the meaning of this phrase." (See, 5 ILCS 50/1.)
In considering the powers of the Attorney General, the supreme court, in Fergus v. Russel, noted:
The court went on to state:
The court noted that it is the Attorney General's duty "to conduct the law business of the State, both in and out of the courts." Fergus, at 342.
With these pronouncements, the court in Fergus clearly established the Office of Attorney General as one with expansive powers which the General Assembly lacked the power to diminish. While it has frequently been argued that much of the language in Fergus broadly describing the Attorney General's role is obiter dicta, it is clear that Fergus stands for "the principle that the Attorney General is the sole officer who may conduct litigation in which the People of the State are the real party in interest." People ex rel. Scott v. Briceland (1976), 65 Ill. 2d 485, 495. Under Fergus and its progeny, any attempt to authorize any other officer to conduct litigation in which the State is the real party in interest would be an impermissible interference with the Attorney General's constitutional powers and an appropriation to another agency to be used directly for such purposes would be unconstitutional and void.
The powers generally understood to belong to the Attorney General at common law have been summarized as follows:
While many of these powers now have a statutory basis, the significance of the common law powers still must be understood from the perspective of the interests represented. Representation of the Crown is translated in our system to representation of the People thus, serving the public interest is established as the paramount obligation of the Attorney General. Further, these powers fix the core of the powers to be exercised by the Attorney General. While they may be expanded upon, nothing in this basic core can be transferred or exercised by any other officer.
At the same time that the Constitution created the Office of Attorney General in what has remained its form to this day, it changed the Office of State's Attorney from the form in which it had been previously known to its present form. The Constitution provided that at the 1872 election there would "be elected a state's attorney in and for each county in lieu of the [circuit] state's attorneys now provided by law." (Ill. Const. 1870, art. VI, sec. 22.) The incorporation of prior statutory language in legislation pertaining to the new offices as known under the 1870 Constitution left the responsibilities somewhat blurred, or at least closely interrelated. One can find to this day provisions for the commencement of actions in which the people of the State may be concerned (55 ILCS 5/9005(a)(1)) and for representation of State officers by State's Attorneys within their counties. (55 ILCS 5/3-9005(a)(4).) As in the 1827 and 1845 Acts, the current law allows the Attorney General to call on State's Attorneys for assistance in matters before the supreme court. (55 ILCS 5/3-9005(a)(8).) There is also a sharing of responsibilities in the area of criminal prosecution. (See, 15 ILCS 205/4.)
The Illinois Constitution of 1970, generally effective on July 1, 1971, continued the Office of Attorney General as it had been established under the 1870 Constitution. The Office of Attorney General is created in article V, section 1, and is described specifically in section 15 of article V, which provides as follows: "The Attorney General shall be the legal officer of the State and shall have the duties and powers that may be prescribed by law." While there was some discussion in the course of the Constitutional Convention concerning a possible limitation on the powers of the Attorney General, given the clear understanding from Fergus v. Russel that the prescription of powers by law was inclusive of the broad powers enjoyed by the Attorney General under the common law, the Convention included language that did not differ in import or effect from that in the 1870 Constitution. [Note: In their book The Illinois Constitution: An Annotated and Comparative Analysis (Institute of Government and Public Affairs, University of Illinois, Urbana (1969)), prepared for the Illinois Constitution Study Commission, George D. Braden and Rubin G. Cohn suggested, at p. 360, that reversion to the language of the 1818 Constitution ["regulated" versus "prescribed" by law] would "introduce adequate flexibility in allocating legal work within the Executive Department." The Convention did not opt for this suggested alteration.]
In People ex rel. Scott v. Briceland (1976), 65 Ill. 2d 485, it was the view of the Illinois Supreme Court that Fergus had been "incorporated into article V, section 15, of the present Constitution." The court went on to reaffirm that "the Attorney General is the sole officer authorized to represent the people of this State in any litigation in which the People of this State are the real party in interest * * *." In a subsequent case, EPA v. PCB (1977), 69 Ill. 2d 394, the court reaffirmed the Attorney General's "prerogative of conducting legal affairs for the State" and noted that the "Attorney General's responsibility is not limited to serving or representing the particular interests of State agencies, including opposing State agencies, but embraces serving or representing the broader interests of the State."
Because of the peculiar role carved out for the Attorney General, he or she stands, as a lawyer, in a position different from most other lawyers. His or her client is ultimately the People, and while he or she may represent officers and agencies that are parties to litigation within his purview, his or her relationship to those "clients" differs from a customary attorney/client relationship. (See EPA v. PCB, at 401-2.) When the Attorney General undertakes representation in his or her constitutional role, it is the Attorney General and not the officer or agency who controls the course of the representation. (See Newberg, Inc. v. The Illinois State Toll Highway Authority (1983), 98 Ill. 2d 58.) The Attorney General is fully empowered to control the State's litigation in the public interest. Under the applicable case law, one must come to the conclusion that the Attorney General has the power to make all decisions on the State's behalf in litigation he is handling, including those on strategy, the course of the litigation, and to make determinations on settlement and appeal.
Serving and representing the broader interests of the State takes the Attorney General into a wide range of areas, some of which were unknown at the time the common law powers were developed but which nevertheless can be addressed through the use of those powers. The State's day to day legal business has been joined by functions relating to the protection of the environment (developing from the common law power to prevent public nuisance), the combating of consumer fraud, the protection of the citizens' interests in public utility rate and service matters, and, most recently, in the obtainment of health care.
While the Attorney General has prosecutorial powers under the common law, he generally lacks the power to take exclusive charge of the prosecution of cases over which a State's Attorney shares authority, unless exclusive or independent authority is given by statute. (See, People v. Massarella (1978), 73 Ill. 2d 531, and People v. Buffalo Confectionery Co. (1980), 78 Ill. 2d 447.) The powers of the Attorney General provide that he is to assist State's Attorneys in prosecutions "when, in his judgment, the interest of the people of the State requires it." (15 ILCS 205/ 4.) Prosecution assistance has been a major function, particularly necessary when serious cases have arisen in smaller counties with limited resources. Criminal activity on a multicounty basis has led to statutory power to convene a statewide grand jury with powers crossing jurisdictional lines for investigation of specified drug and streetgang related offenses. (725 ILCS 215/1 et seq.) In specialized areas, and particularly in areas pertaining to environmental protection, the General Assembly has given the Attorney General independent power to prosecute. As was provided in the office's earliest days, the Attorney General retains the prerogative to "appear for and represent the people of the state before the supreme court in all cases [civil or criminal] in which the state or the people of the state are interested." (15 ILCS 205/4.) Thus, most serious criminal matters, and particularly capital cases, eventually fall within the Attorney General's purview.
In the 180 year history of this State, the Office of the Attorney General has developed and has become an indispensable participant in this State's governance. The fact that the common law places the Attorney General in a position of being an advocate for the broader interests of the State, as attorney for the People as a whole, postures him or her to look beyond what can sometimes be the parochial interests of State agencies and governmental units to what is the greater good and the more significant interest.
Attorneys General of Illinois