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02/21/97 JOHN F. TULLY v. JIM EDGAR

February 21, 1997

JOHN F. TULLY, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
JIM EDGAR, SUED IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF ILLINOIS, JAMES "PATE" PHILIP, SUED IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE ILLINOIS SENATE, AND GLORIA JACKSON BACON, M.D., WILLIAM D. ENGELBRECHT, JEFFREY GINDORF, SUSAN L. GRAVENHORST, THOMAS F. LAMONT, ADA N. LOPEZ, MARTHA O'MALLEY, AND JUDITH R. REESES, SUED IN THEIR OFFICIAL CAPACITIES AS TRUSTEES OF THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, DEFENDANTS, AND JUDITH ANN CALDER, SUED IN HER OFFICIAL CAPACITY AS TRUSTEE OF THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, DEFENDANT-APPELLEE. JAMES E. RYAN, ATTORNEY GENERAL OF THE STATE OF ILLINOIS, APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Albert Green, Judge Presiding.

Released for Publication March 31, 1997.

The Honorable Justice Zwick delivered the opinion of the court. McNAMARA, J., and Rakowski, J., concur.

The opinion of the court was delivered by: Zwick

JUSTICE ZWICK delivered the opinion of the court: The issues presented in this case, brought by the Attorney General as an interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (134 Ill. 2d 307(a)(1)), *fn1 concern whether the circuit court acted within its authority in: (1) appointing attorney Lee J. Schwartz as special Attorney General to represent University of Illinois trustee Judith Ann Calder in the above-captioned matter, and (2) ordering the Attorney General to process monthly vouchers for Mr. Schwartz's fees, including fees relating to Calder's "Affirmative pleadings."

In early 1995 the General Assembly passed public Act 89--5, "An Act Relating to the University of Illinois" (the University Act)(Pub. Act 89--5, eff. Jan. 1, 1996). Governor Edgar subsequently signed the University Act which terminated the terms of each of the then-sitting trustees of the University of Illinois on January 1, 1996. The University Act replaced the elected trustees with trustees to be appointed by the Governor.

On May 5, 1995, plaintiff, John F. Tully, as a private citizen and voter, brought a declaratory judgment action against the Governor and president of the Illinois Senate, as well as against Calder and the eight other elected trustees of the University of Illinois. Plaintiff challenged the validity of the University Act in that it prematurely terminated the terms of office for which the trustees had been elected.

On June 4, 1995, attorney Lee J. Schwartz sent a letter to the Attorney General requesting that he be made a special Attorney General to represent Calder in the litigation pursuant to the State Employee Indemnification Act, 5 ILCS 350(2)(b) (West 1994)(the Indemnification Act). Schwartz indicated that Calder was considering challenging the constitutionality of the University Act.

In correspondence dated June 27, 1995, the Attorney General's Chief of Staff, Stephen J. Culliton, refused Schwartz's request. He noted that both Jenner & Block, counsel for the other trustees, as well as the Attorney General's office, were available to defend Calder. In addition, Culliton stated that the Indemnification Act did not contemplate the appointment of private counsel for the purposes of affirmatively challenging the constitutionality of legislation.

Subsequently, on July 7, 1995, Calder appeared in the circuit court with attorney Schwartz seeking his appointment as special Attorney General to argue on her behalf. Schwartz noted that the Attorney General had refused to represent Calder either directly or by appointing a special Attorney General to handle the case. He also noted that elected officials are entitled to retain their own attorneys under section 2 of the Indemnification Act. See 5 ILCS 350/2(b) (West 1996). The court allowed Schwartz to proceed as special Attorney General. Schwartz subsequently filed an answer to plaintiff's complaint on Calder's behalf. In addition, Schwartz filed Affirmative Pleadings challenging the validity of the University Act on eight grounds not raised by the plaintiff's initial complaint.

On July 12, 1995, the Attorney General filed a motion in the circuit court seeking reconsideration of the court's order appointing Schwartz. Prior to that hearing, attorney William D. Heinz circulated a letter on behalf of Jenner & Block explaining his firm's position with regard to the litigation. He stated that his firm was ready and willing to represent Calder, but could not do so in light of Calder's insistence on being represented by Schwartz. He also explained that he had a conflict of interest in taking the case as the other trustees had resolved not to challenge the validity of the University Act, a position inconsistent with the one Calder wished to take. See generally, Code of professional Responsibility, 134 Ill. 2d R. 1.2(a)("[a] lawyer shall abide by a client's decision concerning the objectives of representation"); 134 Ill. 2d R. 1.7 (prohibiting an attorney from representing clients with adverse positions).

The circuit court denied the Attorney General's motion for reconsideration and the Attorney General promptly filed this appeal. On motion of the Attorney General, we stayed the circuit court's order requiring the Attorney General to process monthly vouchers.

The plaintiff's case proceeded in the circuit court with Schwartz representing Calder without compensation. Subsequently, the circuit court ruled in favor of plaintiff on the substantive issues of the case and consistently with Calder's position that the University Act prematurely and unconstitutionally terminated the trustees' terms in office. On direct and expedited appeal to the Supreme Court of Illinois, the circuit court's ruling was affirmed. Tully v. Edgar, 171 Ill. 2d 297, 664 N.E.2d 43, 215 Ill. Dec. 646 (1996). The supreme court held that the University Act affected the public's fundamental right to vote and that, in the absence of a compelling state interest, Illinois voters are entitled to have elected officials serve out the full terms for which they have been elected. Tully, 171 Ill. 2d at 311.

The only claim not resolved by the supreme court's opinion in Tully is the question of whether the circuit court properly appointed Schwartz as a special Attorney General. The Attorney General argues the appointment violated sovereign immunity as well as the doctrine of separation of powers; that the Attorney General's obligation to represent Calder is limited by the terms of the Indemnification Act to "defending" Calder against liability, a duty which, in this case, did not include challenging the constitutionality of the University Act; and that he acted within his discretion in insisting that Calder be represented by Jenner & Block, attorneys for the other trustees. Calder argues, in response, that sovereign immunity and the separation of powers doctrine should not apply to the present dispute in light of the Attorney General's statutory obligations under the Indemnification Act. She also argues that her Affirmative Pleadings constituted a reasonable aspect of her defense of the case, as contemplated by the Indemnification Act.

Section 2(a) of the Indemnification Act provides, in part, that state employees who are sued for official misconduct are to be indemnified by the State for any resulting personal liability. 5 ILCS 350/2(a) (West 1994). In addition, section 2 provides that a defendant is to be defended, as necessary, by the Attorney General. 5 ILCS 350/2(a) (West 1994). Section 2(b) of the Indemnification Act provides, in part, that if the Attorney General is unable to represent the defendant under section 2(a) because of a conflict of interest, or if ...


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