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Tuesday, October 27, 2015

Ind. Gov't. - What if our Attorney General and Governor were of different parties?

It could happen. It has happened in Illinois. Adam Liptak writes today in his weekly Sidebar column in the NY Times about a dispute between the Illinois attorney general, Lisa Madigan, a Democrat, and the Republican Illinois governor, who took office earlier this year, Bruce Rauner. Here is how it starts:

WASHINGTON — An extraordinary letter landed at the Supreme Court last month. In it, Illinois’s attorney general accused its governor of violating the law — by filing a brief at the court.

The accusation was but one salvo in the white-hot war over the fate of public unions, which hangs in the balance in a case to be argued early next year. It gave the court a taste of Illinois’s bruising politics and a sense of how closely the state’s officials, workers and unions are watching the case.

The contested brief, from Gov. Bruce Rauner, a Republican, said his state’s public unions “have negotiated wages and benefits that have unrealistically kept going up while the state economy has kept going down.”

The state’s attorney general, Lisa Madigan, a Democrat, was not happy to see the governor’s brief. Her top appellate lawyer wrote to the justices to alert them to “an unauthorized filing, purportedly on behalf of Bruce Rauner, governor of Illinois.”

“Neither the governor nor his attorneys have the authority, as a matter of state law, to represent the state or its officials in any court or to determine the state’s litigation positions,” the lawyer, Solicitor General Carolyn Shapiro, wrote.

As a purely legal matter, she seemed to have a point. The Illinois Supreme Court has said the state attorney general “is the chief legal officer of the state and the state government’s only legal representative in the courts.”

The governor’s general counsel, Jason Barclay, did not really contest the point in his own letter in response. The governor had not meant to speak for the state, Mr. Barclay wrote. Indeed, he said, the brief “makes very clear that it is filed only in his individual capacity.”

If there is support for that assertion in the brief, it is hard to find. The phrase “individual capacity,” for instance, does not appear in it.

The assertion in any event presented its own problems, Ms. Shapiro wrote in a third letter. “It would be unlawful,” she wrote, for “state employees paid from public revenues to represent Mr. Rauner in his individual capacity in any matter.”

Mr. Barclay clarified his position in an email on Friday. He now said the governor “filed the brief in his official capacity” but “was speaking on behalf of his office only.”

“The term ‘individual capacity’ in our letter to the court does not mean or imply ‘private citizen,’ ” Mr. Barclay wrote.

Posted by Marcia Oddi on October 27, 2015 09:51 AM
Posted to Indiana Government