Case Details


Attorney General Duty To Defend Elected State Official.

Filing State



Appellate Court of Illinois, 1st Division




AG declined to represent University Trustee who challenged constitutionality of law that terminated elected trustees and replaced them with Governor’s appointees. Illinois Supreme Court held “To the extent that the Attorney General has a conflict in the representation of an elected official which the Attorney General is unable or unwilling to resolve, the circuit court has the authority to remove that conflict through the appointment of a special attorney, as well as the corresponding authority to see that that attorney gets paid a reasonable fee for his or her services.”

Case Description

The Illinois legislature passed the University Act, under which trustees for the University of Illinois were to be appointed by the Governor, rather than elected. The elected trustees were terminated. A number of group sued the state, alleging that the termination of elected officials before their term was up was unconstitutional. The Attorney General defended the law, and retained counsel for the trustees. One of the trustees retained her own counsel, and in addition to defending herself, she argued that the law was unconstitutional. The Attorney General declined to represent that trustee, and declined to pay for her attorney. The district court judge appointed her attorney as a special AAG. After the Illinois Supreme Court ruled that the law was unconstitutional, the AG challenged the appointment of her counsel, arguing that the appointment was a violation of the separation of powers and sovereign immunity. The trustee argued that she, as an elected official, was entitled to her own counsel under the state’s Indemnification Act, which provides, “In the event that the defendant in the proceeding is an elected State official, * * * the elected State official may retain his or her attorney, provided that said attorney shall be reasonably acceptable to the Attorney General. In such case the State shall pay the elected State official’s court costs, litigation expenses, and attorneys’ fees, to the extent approved by the Attorney General as reasonable, as they are incurred.” The court found that this section allowed Calder to retain her own attorney. The court also held that her claims that the statute was unconstitutional were part of her “defense” and that the Attorney General, with his separate duty to the Governor to defend the constitutionality of the statute, should have appointed special counsel for her. The court also held that the district court’s order that the AG pay the trustee’s counsel was not a violation of sovereign immunity or separation of powers.