The Madison County Record Jul. 20, 2015, 1:51pm


Attorney General Lisa Madigan wants St. Clair County circuit judge Robert LeChien to admit he shouldn’t have let lawyers for state comptroller Leslie Munger argue against her lawyers in his court.

On July 13, Madigan moved to strike the appearances and arguments of Munger’s staff lawyers at a July 8 hearing on payment of state workers.

Deputy solicitor general Brett Legner wrote, “The attorneys who appeared and argued on behalf of the comptroller committed multiple errors that are harmful to the state’s interest.”

“The comptroller’s attorneys knew that they had not been appointed or authorized to appear for the comptroller in this litigation, yet they acted as if they had such authority,” Legner wrote.

He wrote that they improperly consented to the entry of relief against her.

At the hearing LeChien ordered Munger to process normal payrolls in the absence of legislative appropriation.

Munger favored the order but Madigan, as her lawyer, opposed it.

Prior to the hearing, Munger moved to disqualify Madigan as her counsel.

Legner told LeChien that Madigan must represent Munger because the real party at interest was the state.

LeChien said he wasn’t sure he saw a conflict of interest.

He said he would take it under advisement.

He said he wouldn’t decide what might not have to be decided.

It sounded mysterious until Legner argued a point and LeChien asked Munger’s chief counsel, Alissa Camp, to respond.

Legner objected, to no avail, and Camp took the same position as union workers.

LeChien continued inviting responses from Camp and deputy counsel Sean Coombe throughout the hearing, and Legner continued objecting.

Stephen Yokich of Chicago, who petitioned for the order on behalf of unions, stood silent for long stretches of a hearing he had caused.

When he did speak, Camp and Coombe agreed.

Legner said sovereign immunity barred the claim.

He said jurisdiction belonged at the Illinois Court of Claims.

LeChien found his own jurisdiction sufficient.

He signed an order the next day finding that, “Plaintiffs’ motion seeks to have the comptroller perform her job – that she stands willing and ready to do.”

“Families should not suffer while the legislature and the executive vie for a result favorable to their political agenda,” LeChien wrote.

“The comptroller is not a nominal party sued as a cutout for a claim that correctly belongs to the Court of Claims.

“The court properly takes subject matter jurisdiction to hear plaintiffs’ request for an order of court to direct the comptroller to exercise her clearly defined official authority.”

LeChien wrote that failure of the executive and legislative branches to reach a budget agreement threatens the financial survival of state employees.

He wrote that the Illinois Supreme Court recognizes judicial authority to assure that inaction of the legislature and the executive doesn’t deprive workers of wages.

He wrote that the Supreme Court has held that a court could provide a comptroller with authority other than appropriation to draw warrants from the treasury.

“The court finds that plaintiffs have stated a proper cause of action for impairment of contract,” he wrote.

“The process to collect economic damages from the State of Illinois Court of Claims dooms to financial ruin the ever expanding number of employees living paycheck to paycheck.

“Furthermore, the burden and hardship of missed paychecks imposed on the workers and their families are separate noneconomic losses, for which there is no recovery.

“The court concludes that the failure to provide the appropriation to pay workers who are required to go to work constitutes an impairment of contract.”

He wrote that denial of relief could expose the state to great liability under the Fair Labor Standards Act including economic loss, interest, damages and attorney fees.

He authorized payment of all workers, union or not.

Legislators passed a general fund budget in the last session, but Rauner vetoed all of it except education on June 25.

The fiscal year ended on June 30, with no budget in place.

Conflict broke out between Madigan and Munger the next day, when Madigan sued Munger in Cook County chancery court.

Madigan sought an order requiring Munger to pay every employee the federal minimum wage, $7.25 an hour.

Madigan claimed federal law applied in the absence of appropriations.

Ten unions sued Munger in St. Clair County chancery court a day later, alleging impairment of contract in violation of the Illinois Constitution.

Munger asked Madigan to appoint outside counsel for her in the Cook County case, and Madigan authorized it.

Munger asked for outside counsel in St. Clair County, and Madigan denied it.

Judges in both cases granted relief, creating a conflict that Madigan has asked the Supreme Court to resolve.

Workers drew normal pay on July 15, but litigation will continue until legislators adopt a budget and Gov. Bruce Rauner signs it.

Meanwhile the gap between Madigan and Munger grows wider.

In a July 13 brief opposing Madigan’s disqualification in St. Clair County, Legner branded Munger’s actions as “blatantly improper.”

“She unilaterally and without authority from or notice to the Attorney General sent lawyers to appear in a case where she is sued in her official capacity and the liability thus impacts the state and the people of Illinois, not the current comptroller in her personal capacity,” Legner wrote.

“She then had those unauthorized lawyers take positions aligned with the plaintiffs on every issue, including waiving the state’s sovereign immunity and conceding that the state was violating the Constitution.”

Legner wrote that the attorney general serves broader interests of the state rather than particular interests of individual agencies or officers.

He wrote that the attorney general might even represent opposing officials or agencies in the same case.

“Although the attorney general and the comptroller took different positions in the Cook County case, that case and this one present different issues and the existence of the Cook County case does not create a conflict here,” he wrote.

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