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People Ex Rel. Scott v. Briceland

OPINION FILED DECEMBER 3, 1976.

THE PEOPLE EX REL. WILLIAM J. SCOTT, ATTORNEY GENERAL, APPELLEE,

v.

RICHARD H. BRICELAND, INDIV. AND AS DIRECTOR OF THE ENVIRONMENTAL PROTECTION AGENCY, ET AL., APPELLANTS.



Appeal from the Circuit Court of Sangamon County; the Hon. Paul C. Verticchio, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 28, 1977.

This appeal involves an action for declaratory judgment and injunctive relief instituted by plaintiff, William J. Scott, as Attorney General of the State of Illinois. The defendants are the Illinois Environmental Protection Agency (EPA), Richard H. Briceland, as director of the Agency, and Jeffrey R. Diver, as deputy director of the Agency. The complaint also names Richard H. Briceland and Jeffrey R. Diver as defendants in their individual capacities.

The principal question at issue is whether the Attorney General is the only State officer authorized by the Illinois Constitution to institute and prosecute cases before the Pollution Control Board. The Attorney General filed a two-count complaint in the circuit court of Sangamon County alleging that the EPA, through Deputy Director Diver, had filed five separate enforcement complaints before the Illinois Pollution Control Board. The complaint sought a declaratory judgment that the Attorney General is the only attorney empowered to institute and prosecute such actions on behalf of the State and also sought to enjoin the EPA from instituting and prosecuting enforcement actions and proceedings before the Pollution Control Board. The Attorney General later amended the complaint to add a third count which prayed that defendants Briceland and Diver be held personally liable for all sums expended by the EPA to prosecute enforcement actions before the Pollution Control Board.

The defendants denied that the EPA was without legal authority to prosecute enforcement actions and other proceedings before the Board. Defendants also filed a counterclaim. Count II of the counterclaim sought a declaration that the EPA and the individual defendants had the right to employ legal counsel, other than the Attorney General, to represent them in the present action. Cross motions for summary judgment were filed, and defendants filed a motion to dismiss count III of the Attorney General's complaint.

Upon a determination that section 4(e) of the Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1004(e)) is unconstitutional, the trial court granted the Attorney General's motion for summary judgment and entered a permanent injunction restraining the defendants from instituting and prosecuting enforcement actions before the Pollution Control Board. The circuit court also granted the motion to dismiss defendants Briceland and Diver in their individual capacities, and entered a declaratory judgment that the defendants were entitled to legal representation in this action. The EPA has appealed from the finding of unconstitutionality and the order entering a permanent injunction. The Attorney General has taken a cross-appeal from that part of the trial court's order which dismissed count III of the amended complaint and which allowed judgment on the pleadings as to count II of the counterclaim. A direct appeal has been taken to this court pursuant to our Rule 302(a)(1). (58 Ill.2d R. 302(a)(1).) We affirm the decision of the circuit court in all respects.

Several issues are presented for resolution. Initially, it must be determined whether the applicable provisions of the Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1001 et seq.) authorize the EPA to institute and prosecute enforcement proceedings before the Board. If that issue is resolved in favor of the EPA, it must then be determined whether a delegation of prosecutorial authority to that agency violates the Attorney General provision of the Illinois Constitution. (Ill. Const. 1970, art. V, sec. 15.) These issues present questions of law involving the proper interpretation of the statutory and constitutional provisions involved. No dispute exists concerning any facts relevant to a resolution of this controversy.

The circuit court held that the Environmental Protection Act delegates to the EPA the authority to prosecute enforcement cases before the Pollution Control Board. It is well established that a court will not pass upon a constitutional dispute where the case may be disposed of upon other grounds. (See, e.g., Commissioners of Drainage District No. 5 v. Arnold (1943), 383 Ill. 498, 507.) We, therefore, must first consider the trial court's holding as to the meaning of the Environmental Protection Act.

Section 4(e) of the Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1004(e)) provides:

"The Agency shall have the duty to investigate violations of this Act * * *, to prepare and present enforcement cases before the Board, and to take such summary enforcement action as is provided for by Section 34 of this Act."

The Attorney General contends that the phrase "prepare and present enforcement cases before the Board" merely allows the EPA to gather and marshal the facts necessary for a presentation to the Board. The Attorney General suggests that by adopting this construction of the statute it will not be necessary for us to consider the constitutional question. The trial court held that the plain meaning of section 4(e) was that the EPA was directed to initiate and prosecute proceedings before the Board. We agree with that holding.

When read in conjunction with the other provisions of the Environmental Protection Act, it is clear that section 4(e) authorizes the EPA to prosecute proceedings before the Board. Title VIII of the Act (Ill. Rev. Stat. 1975, ch. 111 1/2, pars. 1030 through 1034) is addressed to the enforcement procedure. Section 30 requires the EPA to investigate violations of the Act. Section 31(a) provides:

"If such investigation discloses that a violation may exist, the Agency shall issue and serve upon the person complained against a written notice, together with a formal complaint, * * * and shall require the person so complained against to answer the charges of such formal complaint at a hearing before the Board * * *." (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1031(a).)

Section 31(c) states: "In hearings before the Board under this Title the burden shall be on the Agency or other complainant to show either that the respondent has caused or threatened to cause air or water pollution * * *." Section 31 thus places the responsibility to institute and prove violations of the Act upon the EPA, and demonstrates that the Act contemplates prosecution at the administrative level to be conducted by the EPA.

This conclusion is buttressed by those sections of the Act which delineate the role of the Attorney General. Section 42 (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1042) provides for the imposition of civil penalties for violations of the Act which are to be recovered in actions brought by the Attorney General or the State's Attorney of the county in which the violation occurred. Similarly, section 43 (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1043) allows the Attorney General to institute actions for injunctive relief in certain cases, and section 44 (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1044) directs that the Attorney General, or the local State's Attorney, shall enforce the criminal penalties of the Act. The Attorney General is also given the sole authority to bring actions for mandamus, injunction or other appropriate relief against public bodies under the terms of section 46. Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1046(a).

It is evident from a full reading of the Environmental Protection Act that the General Assembly delegated the authority to prosecute cases before the Pollution Control Board to the EPA. The Act does impose enforcement responsibilities upon the Attorney General, but not at the administrative level. We, therefore, conclude that the trial court was correct in holding that section 4(e) directs the EPA to institute and prosecute enforcement cases before the Pollution Control Board. We next consider the constitutionality of this statutory directive.

Article V, section 15, of the Illinois Constitution of 1970 simply provides:

"The Attorney General shall be the legal officer of the State, and shall have the duties and powers that may be prescribed by law."

The Attorney General provision of the 1970 Constitution added to the language of the prior constitutional provision which created the office of Attorney General and provided only that he "shall perform such duties as may be prescribed by law" (Ill. Const. 1870, art. V, sec. 1). In Fergus v. Russel (1915), 270 Ill. 304, the court held that, under the 1870 Constitution, the Attorney General was the only officer empowered to represent the State in any suit or proceeding in which the State is the real party in interest.

The Attorney General contends that the holding of Fergus was expressly ratified by the delegates to the Sixth Illinois Constitutional Convention and that the decision has been embodied in the Attorney General provision of the Constitution of 1970. The EPA contends that section 4(e) is a valid legislative enactment even if Fergus is held to be controlling. Alternatively, the EPA submits that ...


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