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People ex rel. Scott v. Briceland

ELR Citation: 7 ELR 20283
Nos. No. 48729, 359 N.E.2d 149/66 Ill. 2d 65, (Ill., 12/03/1976)

The Illinois Supreme Court affirms the trial court's decision holding that the Illinois Attorney General is the only state official with capacity to institute and prosecute enforcement actions before the Pollution Control Board. Section 4(e) of the Illinois Environmental Protection Act, Ill. Rev. Stat. 1975, ch. 111 1/2, §1004(e), authorizes the Environmental Protection Agency (EPA) to prosecute proceedings before the Board. The Act also imposes enforcement duties upon the Attorney General but not at the administrative level.

This delegation must be construed in light of Ill. Const. 1970, art. V, §15, which provides that the Attorney General shall be the legal officer of the state. In Fergus v. Russell, 270 Ill. 304, 110 N.E. 130 (1975), the court held that the 1870 Constitution, which contained similar language, made the Attorney General the only officer empowered to represent the state in any legal proceeding. Stripped of dictum, Fergus holds that the Attorney General is the sole officer who may conduct litigation in which the state is the real party in interest. Fergus has never been overruled and was the law at the time of the adoption of the 1970 Constitution.

The 1970 Constitution incorporated the Fergus decision's holding. An important element of constitutional interpretation is that the voters were informed of the import of the Attorney General provision. Wolfson v. Avery, 6 Ill. 2d 78, 126 N.E.2d 701 (1955). The constitutional convention delegates debated and rejected possible changes in this provision.

EPA erroneously contends that Fergus is inapplicable to the present controversy. Fergus is applicable to administrative as well as court proceedings. Moreover, the constitutional provision, Ill. Const. art. XI, §1, which provides for the "implementation and enforcement" of the public policy that all persons must maintain a healthful environment, is not broad enough to allow the legislature to diminish the Attorney General's power to represent the state in proceedings designed to enforce that policy. Therefore, §4(e) is unconstitutional to the extent that it authorizes the institution and prosecution of proceedings before the Pollution Control Board by an officer other than the Attorney General.

In two subsidiary issues, the court decides that defendant EPA's officers are not personally liable for litigation expenses expended by EPA in the subject enforcement actions. People ex rel. Munson v. Bartels, 138 Ill. 322, 27 N.E. 1091 (1891); Lusietto v. Kingan, 107 Ill. App. 2d 239, 246 N.E.2d 24 (1969). Also, EPA was entitled to outside counsel in this case in which the Attorney General has an interest. Ill. Rev. Stat. 1975, ch. 14, §6.

The full text of this opinion is available from ELR (10 pp. $1.25, ELR Order No. C-1109).

Counsel for Plaintiff
William J. Scott, Attorney General; Herbert Lee Caplan, Ass't Attorney General
500 S. 2d St., Springfield IL 62701
(217) 782-1090

Counsel for Defendant
Thomas F. Londrigan
Londrigan & Porter
1227 South 7th St., Springfield IL 62705
(217) 544-9823