Lisa Madigan

SPRINGFIELD — Top lawyers for Illinois’ Republican governor and Democratic attorney general are in a dustup over the governor’s office filing a “friend of the court” brief with the U.S. Supreme Court.

Attorney General Lisa Madigan’s solicitor general says Gov. Bruce Rauner’s staff lawyers stepped out of line when they filed an amicus curiae brief in a case now before the court, Friedrichs v. California Teachers Association.

Rauner’s lawyers say Madigan’s office is wrong on several fronts.

The Friedrichs case is of nationwide interest to unions and right-to-work advocates, among others.

Rebecca Friedrichs and nine other California teachers who are not union members object to paying what are known as “agency fees” or “fair-share” dues.

They argue that being forced to pay dues, even those said to be directed only toward bargaining and contract administration, is a violation of their First Amendment rights of free speech and free association.

The high court announced in June it would hear the case this term, which began earlier this month. A decision is not expected until summer 2016.

On Sept. 25, Illinois Solicitor General Carolyn Shapiro wrote to Scott Harris, clerk of the court, to inform him of an “unauthorized” filing of an amicus curiae or “friend of the court” brief on behalf of Rauner in support of Friedrichs’ position.

The governor’s attorneys, Jason Barclay and Dennis Murashko, lack the authority to file such a brief, Shapiro argued.

Those attorneys “have no authority to file or order the filing of any brief in this court on behalf of the governor, in his official capacity, because 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,” Shapiro wrote.

“The Illinois Constitution provides: ‘The attorney general shall be the legal officer of the state,’” Shapiro wrote.

She cited the Illinois Attorney General Act which states, among other things, the attorney general has the power 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.”

She said the Illinois Supreme Court has, for at least a century, delegated the state’s legal representation to the attorney general.

For example, she cited the case of Fergus v. Russel, in which the Illinois Supreme Court held the attorney general “is the sole official adviser of the executive officers … and it is his duty to conduct the law business of the state, both in and out of the courts.”

She also cited the case of Scachitti v. UBS Financial services, in which the court said, “the attorney general is the chief legal officer of the state and its only representative in the courts.”

Shapiro contends “Mr. Barclay and Mr. Murashko are well aware that they do not have authority to file or authorize the filing of court documents on behalf of of the governor in his official capacity absent appointment by the attorney general as special assistant attorneys general.”

Barclay and Murashko wrote their own Oct. 1 letter to the clerk of the court and argued the solicitor general is off the mark.

The governor’s lawyers say Illinois is not and never has been a party to the Friedrichs case and the governor’s office isn’t trying to change that, but only filing an amicus or “friend” brief — which they argue Rauner has every right to do.

And they say the governor clearly and within court rules filed only in his individual capacity and alongside several individual employees of the Kaneland, Illinois, Unified School District No. 302.

“The governor never represented that he filed the brief on behalf of the state of Illinois, the attorney general of Illinois, or any other elected official in Illinois,” the governor’s attorneys wrote.

Finally, they say the governor and attorney general have been at odds in both state and federal cases and remain so in a state case concerning a Rauner executive order addressing First Amendment issues similar, if not identical, to matters at issue in the Friedrichs case.

When the attorney general is in conflict with another state executive official, such as the governor, the courts have held “attorney general must yield to the other official’s choice of counsel,” Barclay and Murashko wrote, citing the case of Suburban Cook County Regional Office of Education v. Cook County Board.

The governor’s lawyers conclude the “attorney general is, of course, free to file her own amicus brief in support of respondents in Friedrichs. She may yet do so. She may do so on behalf of her own office or on behalf of the state. But the attorney general cannot infringe on the governor’s ability to speak to this court, especially when..the governor and the attorney general are adversaries in active litigation on the same issue in Illinois.”

To date, nothing has become of the disagreement.

Supreme Court spokeswoman Kathleen Arberg said the letters are part of the case file and docket notes distributed to the justices. Should the court have any response, it will be noted on the docket, she said in an email.

Neither Rauner’s nor Madigan’s press secretaries had any comment Friday.

Mark Fitton is a reporter for the Illinois News Network, a division of the Illinois Policy Institute. 

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