Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Marvin E. Aspen.
MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 1, 1978.
The issue is whether the Attorney General properly appeared on behalf of the People before the grand jury. The Cook County grand jury on June 8, 1973, returned a 49-count indictment for conspiracy, perjury, theft and tax evasion against Benedetto J. Massarella; Bee Jay's Truck Stop, Inc., a corporation of which Massarella was president and sole shareholder; Mideast Transport, Inc., a corporation controlled by Massarella; and several others. Prior to trial, all but five counts were dismissed. Massarella was found guilty by a jury of conspiracy, theft and one count of perjury; sentenced to five years' probation, including two years' periodic imprisonment (for theft) and one to three years in the penitentiary (for perjury), both sentences to run concurrently; and ordered to pay a $10,000 fine and $425,407 in restitution to the State.
Massarella raised 15 issues for review before the appellate court, which reversed the conviction on the basis of one of those issues. (53 Ill. App.3d 774.) Massarella had argued, as he does here, that the indictment should have been dismissed due to the Attorney General's presentation to the grand jury and prosecution of the case, which were, he maintains, unauthorized and prejudicial. The appellate court agreed, finding that the Attorney General's common law powers were not so broad as to allow him to "take exclusive charge" of the prosecution, that the Attorney General was statutorily limited to "assisting" the State's Attorney in the prosecution of the case and could not assist the State's Attorney absent a request, and that the statutory provision for grand jury secrecy (Ill. Rev. Stat. 1973, ch. 38, par. 112-6) denied the Attorney General access to grand jury proceedings. (53 Ill. App.3d 774, 786.) We allowed the State's petition for leave to appeal. 58 Ill.2d R. 315.
The facts as to Massarella's alleged illegal activities and perjury, set out in the appellate court's opinion, are not relevant to our disposition of the appeal. Pertinent facts will be related as is necessary in the course of the opinion.
The Attorney General acknowledges that the bill of indictment was presented to the grand jury by two assistant Attorneys General and that neither the State's Attorney nor assistant State's Attorneys were present during the presentation. Four days later, on June 12, 1973, and again on June 15, assistant State's Attorneys, representing the People at the arraignments of the defendants, told the court the Attorney General was handling the case. At all subsequent stages of the proceedings, the Attorney General has been representing the State.
Under the Illinois Constitution, the Attorney General is the chief legal officer of the State and has "the duties and powers that may be prescribed by law." (Ill. Const. 1970, art. V, sec. 15; Environmental Protection Agency v. Pollution Control Board (1977), 69 Ill.2d 394.) At common law in England by the 16th century, the Attorney General, as the king's representative, instituted and conducted suits and proceedings for the enforcement of laws in all the courts>. (6 W. Holdsworth, History of English Law 461-62, 467 (1924).) In the course of its development, the common law gave to Attorneys General the competence to control all litigation on behalf of the State including intervention in and management of all such proceedings. This encompassed appearances before the grand jury. (Commonwealth ex rel. Minerd v. Margiotti (1936), 325 Pa. 17, 188 A. 524; Margiotti Appeal (1950), 365 Pa. 330, 75 A.2d 465; 2 Ruling Case Law 915-16 (1929); DeLong, Powers and Duties of the State Attorney-General in Criminal Prosecution, 25 J. Crim. L. & Criminology 358 (1934); Note, Appointed Attorney General's Power to Supresede an Elected District Attorney, 33 Temple L.Q. 78 (1959). See also People v. Miner (1868), 2 N.Y. 396; Note, The Relationship Between the Attorney-General and the State's Attorney in Illinois, 1949 U. Ill. L.F. 507; Holdsworth, The Early History of the Attorney and Solicitor General, 13 Ill. L. Rev. 602 (1918).) In 1915, Fergus v. Russel (1915), 270 Ill. 304, 335-42, held that, under the 1870 Illinois Constitution, the Attorney General not only retained his common law powers and duties but also could not be deprived of them by the legislature. The legislature could only add to the powers. It is beyond dispute that the 1970 Constitution has kept those powers intact. (E.g., People ex rel. Scott v. Briceland (1976), 65 Ill.2d 485, 500, Environmental Protection Agency v. Pollution Control Board (1977), 69 Ill.2d 394, 399. See also 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1312-16, especially Delegate Lewis' comments at page 1316 regarding the Attorney General's authority "over the prosecution branch of state government, including that of the state's attorneys.") Fergus v. Russel still has life. What is before us is the narrow issue of whether, where the State's Attorney has expressed no objection, the Attorney General may properly initiate and prosecute an action including appearing before a grand jury. If so, did the State's Attorney object here?
Although the appellate court looked to sections 4 and 5 of "An Act in regard to attorneys general and state's attorneys" (Ill. Rev. Stat. 1973, ch. 14, pars. 4, 5), People v. Flynn (1940), 375 Ill. 366, and section 112-6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 112-6) for guidance, we disagree with its analysis.
By statute among the duties of the Attorney General are:
"First To appear for and represent the people of the state before the supreme court in all cases in which the state or the people of the state are interested.
Second To institute and prosecute all actions and proceedings in favor of or for the use of the state, which may be necessary in the execution of the duties of any state officer.
Fourth To consult with and advise the several state's attorneys in matters relating to the duties of their office; and when, in his judgment, the interest of the people of the state requires it, he shall attend the trial of any party accused of crime, and assist in the prosecution." (Ill. Rev. Stat. 1973, ch. 14, par. 4.)
The State's Attorney has among his obligations the duty:
"(1) To commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county may be ...