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                               Appellate Court                         Date: 2017.08.04
                                                                       09:21:07 -05'00'




                  Hoffman v. Madigan, 2017 IL App (4th) 160392



Appellate Court    MICHAEL L. HOFFMAN, in His Official Capacity as Acting
Caption            Director of Central Management Services, Plaintiff-Appellant, v.
                   LISA MADIGAN, in Her Official Capacity as Attorney General of the
                   State of Illinois, Defendant-Appellee.



District & No.     Fourth District
                   Docket No. 4-16-0392



Filed              June 22, 2017



Decision Under     Appeal from the Circuit Court of Sangamon County, No.
Review             15-MR-1050; the Hon. John M. Madonia, Judge, presiding.



Judgment           Affirmed.


Counsel on         Michael W. Basil and Ryan C. Green, of Illinois Department of
Appeal             Central Management Services, and Dennis D. Murashko, of JRTC,
                   both of Chicago, and Lorilea Buerkett, of Brown, Hay & Stephens,
                   LLP, of Springfield, for appellant.

                   Lisa Madigan, Attorney General, of Chicago (David L. Franklin,
                   Solicitor General, and Richard S. Huszagh, Assistant Attorney
                   General, of counsel), for appellee.
     Panel                    JUSTICE HOLDER WHITE delivered the judgment of the court, with
                              opinion.
                              Justices Appleton and Knecht concurred in the judgment and opinion.


                                                OPINION

¶1          In November 2015, plaintiff Tom L. Tyrrell, in his official capacity as Director of Central
       Management Services (CMS), filed a complaint for injunctive and declaratory relief.
       Following Tyrrell’s resignation, Michael Hoffman, in his official capacity as Acting Director
       of CMS, was substituted as plaintiff. Throughout the proceedings below, Hoffman and CMS
       were referred to collectively as “CMS,” and we do the same. The complaint, in part, requested
       (1) defendant, Lisa Madigan, in her official capacity as Attorney General of the State of
       Illinois, be enjoined from representing CMS before the Workers’ Compensation Commission
       (Commission) on cases involving “personal assistants,” based on her refusal to defend CMS’s
       determination that a personal assistant was not a State employee for purposes of the Workers’
       Compensation Act (820 ILCS 305/1 et seq. (West 2014)), and (2) a special assistant Attorney
       General be appointed to represent CMS. That same month, the Attorney General filed a motion
       to dismiss pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615
       (West 2014)), alleging the complaint failed to state a legally valid cause of action. In May
       2016, the trial court granted the motion to dismiss with prejudice.
¶2          CMS appeals, arguing the trial court erred by dismissing its complaint for failure to state a
       cause of action. We affirm.

¶3                                         I. BACKGROUND
¶4                               A. Disabled Persons Rehabilitation Act
¶5         The Disabled Persons Rehabilitation Act (Rehabilitation Act) (20 ILCS 2405/1 et seq.
       (West 2014)) provides for the “rehabilitation, habilitation[,] and other services to persons with
       one or more disabilities.” The Rehabilitation Act gives the Department of Human Services
       (DHS) the power to establish programs designed “to prevent unnecessary or premature
       institutionalization” of persons with disabilities. 20 ILCS 2405/3(f) (West 2014)). One such
       program utilizes “personal assistants” to provide care and assistance to disabled people in their
       own homes. DHS regulations designate a disabled person receiving care as (1) the “customer”
       and (2) the “employer” of the personal assistant. 89 Ill. Adm. Code 676.30(b)(3) (2014). Solely
       for the purposes of coverage under the Illinois Public Labor Relations Act (5 ILCS 315/1
       et seq. (West 2014)), the Rehabilitation Act designates these personal assistants as public
       employees. The amendment providing for this employee/employer relationship allowed
       personal assistants to collectively bargain with DHS to set the level of pay for personal
       assistants. The Rehabilitation Act specifically provides the State “shall not be considered to be
       the employer of *** personal assistants *** for any purposes not specifically provided in
       Public Act 93-204 or Public Act 97-1158, including but not limited to, purposes of vicarious
       liability in tort and purposes of statutory retirement or health insurance benefits.” 20 ILCS
       2405/3(f) (West 2014).



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¶6                      B. The Department of Central Management Services Act
¶7         Section 405-105 of the Department of Central Management Services Act directs CMS to
       establish a program coordinating, in part, the handling of “casualty insurance exposures of the
       State and the departments, divisions, agencies, branches, and universities of the State.” 20
       ILCS 405/405-105 (West 2014). In pertinent part, subsection (10) gives CMS the power and
       the duty to “[e]stablish rules, procedures, and forms to be used by State agencies in the
       administration and payment of workers’ compensation claims. For claims filed prior to July 1,
       2013, [CMS] shall initially evaluate and determine the compensability of any injury that is the
       subject of a workers’ compensation claim and provide for the administration and payment of
       such a claim for all State agencies.” 20 ILCS 405/405-105(10) (West 2014).

¶8                            C. Underlying Workers’ Compensation Case
¶9         Stephanie Yencer-Price worked in the Dailey household as a personal assistant pursuant to
       the Rehabilitation Act. After allegedly sustaining injuries while performing her duties as a
       personal assistant, Yencer-Price filed two workers’ compensation claims alleging she was a
       State employee. CMS determined Yencer-Price was not a State employee and denied her
       workers’ compensation claims. In making this determination, CMS relied, in part, on (1) the
       amendments to the Rehabilitation Act and the Public Labor Relations Act, which designated
       personal assistants as State employees exclusively for the purposes of collective bargaining;
       (2) DHS regulations designating the customer (and not the State) as the employer of the
       personal assistant; and (3) the Supreme Court’s decision in Harris v. Quinn, 573 U.S. ___, 134
       S. Ct. 2618 (2014). Currently, Yencer-Price has two claims pending against DHS before the
       Commission.

¶ 10                                             D. Complaint
¶ 11       CMS’s complaint alleged it explicitly asked the Attorney General to present its
       determination that Yencer-Price was not a State employee in proceedings before the
       Commission. However, the Attorney General refused to present this argument and objected to
       CMS’s request to choose a special assistant Attorney General to represent CMS before the
       Commission. The complaint alleged the Attorney General had professional, statutory,
       constitutional, and ethical obligations to (1) apprise the Commission of CMS’s reasons for
       denying Yencer-Price’s claims and (2) present the lack of an employer-employee relationship
       between the State and Yencer-Price as a defense to Yencer-Price’s claims. The complaint
       further alleged the Attorney General’s refusal to raise this defense interfered with CMS’s
       statutory duty to administer the workers’ compensation program for State employees.
¶ 12       The Attorney General filed a motion to dismiss pursuant to section 2-615 of the Code (735
       ILCS 5/2-615 (West 2014)), arguing CMS failed to set forth a legally valid cause of action.
       The motion to dismiss alleged (1) the Attorney General had the exclusive constitutional
       authority to represent the State, including its officers, employees, and agencies, when the State
       is the real party in interest in litigation and allowing CMS to choose private counsel would
       cause “chaos”; (2) the Attorney General was “vigorously defending” these workers’
       compensation cases; and (3) the Commission had repeatedly rejected the very argument CMS
       sought to raise and ruled that personal assistants are employed by the State.
¶ 13       In June 2016, the trial court granted the motion to dismiss. The court noted the potential for
       “chaos” if it determined the disagreement as to what argument the Attorney General should

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       raise constituted a conflict of interest such that special counsel should be appointed. The court
       observed that the unique powers and constitutional authority the Attorney General holds
       include the responsibility to decide what arguments, strategies, and litigation tactics to employ.
       Additionally, the court noted the Attorney General, in fulfilling her responsibility to litigate on
       behalf of the State, was raising arguments that, in her experience, were successful. The court
       also expressed concern that allowing CMS to choose special counsel would open the
       floodgates for judicial oversight of every litigation decision made by the Attorney General
       with which an agency disagreed. The court ruled CMS’s disagreement with the Attorney
       General’s strategy was not a conflict of interest that would justify the removal of the Attorney
       General from all workers’ compensation cases involving personal assistants and dismissed
       CMS’s complaint with prejudice.
¶ 14       This appeal followed.

¶ 15                                           II. ANALYSIS
¶ 16       CMS appeals, arguing the trial court erred by dismissing its complaint for failure to state a
       cause of action. Specifically, CMS argues (1) the court erred in its construction and application
       of controlling precedent and (2) CMS stated a colorable claim that personal assistants are not
       State employees and the Attorney General’s refusal to raise that claim in workers’
       compensation proceedings created a disqualifying conflict of interest such that a special
       Attorney General should be appointed. In support of that contention, CMS argues the Attorney
       General’s refusal to raise the lack of an employer-employee relationship was not a mere matter
       of trial strategy left to the discretion of the Attorney General. Rather, CMS contends the
       Attorney General’s refusal to present this defense interfered with CMS’s statutory authority to
       make the initial determination regarding the compensability of personal assistants’ workers’
       compensation claims. The Attorney General contends CMS failed to allege a valid basis to
       remove her office from its role as the sole legal representative for the State in litigation where
       (1) no disqualifying conflict of interest existed, (2) Illinois law vests control over litigation for
       the State in the Attorney General, and (3) the Attorney General did not usurp CMS’s statutory
       authority to make initial determinations regarding the compensability of workers’
       compensation claims against the State.

¶ 17                                      A. Standard of Review
¶ 18        Where a complaint fails to state a claim on which relief can be granted, dismissal under
       section 2-615 of the Code is appropriate. Duane v. Hardy, 2012 IL App (3d) 110845, ¶ 10, 975
       N.E.2d 1266. We accept all well-pleaded facts as true and view those facts in the light most
       favorable to the plaintiff. Id. A complaint should be dismissed “only if it is clearly apparent
       that no set of facts can be proven which will entitle the plaintiff to recovery.” Chandler v.
       Illinois Central R.R. Co., 207 Ill. 2d 331, 333, 798 N.E.2d 724, 733 (2003). Our review is
       de novo. Bell v. Hutsell, 2011 IL 110724, ¶ 9, 955 N.E.2d 1099.

¶ 19                                B. Powers of the Attorney General
¶ 20       Article V, section 15, of the Illinois Constitution of 1970 provides: “The Attorney General
       shall be the legal officer of the State, and shall have the duties and powers that may be
       prescribed by law.” Ill. Const. 1970, art. V, § 15. This provision added to the prior
       constitutional provision, which created the office and provided the Attorney General “shall

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       perform such duties as may be prescribed by law.” Ill. Const. 1870, art. V, § 1. See also People
       ex rel. Scott v. Briceland, 65 Ill. 2d 485, 492, 359 N.E.2d 149, 153 (1976). The supreme court
       held article V, section 1, of the Illinois Constitution of 1870 created the “office by the common
       law designation of Attorney General and thus impressed it with all its common law powers and
       duties.” Fergus v. Russel, 270 Ill. 304, 342, 110 N.E. 130, 145 (1915).
¶ 21       Before further discussing the Attorney General’s powers, we note that not every state
       attorney general enjoys the full common-law powers as in Illinois. See, e.g., State ex rel.
       Morrison v. Thomas, 297 P.2d 624, 627 (Ariz. 1956) (the Arizona Supreme Court looked to
       statutes to determine “whether the Attorney General can represent the State without the
       permission of the administrative officer” because the Attorney General had no common-law
       power to do so). In Santa Rita Mining Co. v. Department of Property Valuation, 530 P.2d 360,
       361 (Ariz. 1975) (en banc), Arizona’s director of property valuation and its attorney general
       disagreed on whether to appeal a lower court ruling on a decision of the board of property tax
       appeals. The Arizona Supreme Court determined a statute granted the director of property
       valuation the discretion to appeal certain board decisions. Id. at 363. The supreme court went
       on to state, “It is the director’s discretion which may be exercised and not the Attorney
       General’s. The Attorney General is the attorney for the agency, no more. In the instant case[,]
       the Attorney General did not have the power to appeal against the wishes of his client.” Id.
¶ 22       The same reasoning does not apply to Illinois. See, e.g., People ex rel. Scott v. Illinois
       Racing Board, 54 Ill. 2d 569, 574-75, 301 N.E.2d 285, 288 (1973) (Attorney General had
       standing to seek administrative review of the Illinois Racing Board’s licensing action, even
       though the Attorney General acted “as attorney and counselor to the Illinois Racing Board”).
       Following the adoption of the Illinois Constitution of 1970, the Briceland court reaffirmed
       Fergus, holding, “the Attorney General is the sole officer authorized to represent the People of
       this State in any litigation in which the People of the State are the real party in interest, absent
       a contrary constitutional directive.” Briceland, 65 Ill. 2d at 500, 359 N.E.2d at 156. “The
       Attorney General, as an elected representative of the citizens of this state, is responsible for
       evaluating the evidence and other pertinent factors to determine what action, if any, can and
       should properly be taken and what penalties should be sought.” Lyons v. Ryan, 201 Ill. 2d 529,
       539, 780 N.E.2d 1098, 1105 (2002). As the chief law enforcement officer of the State, the
       Attorney General “is afforded a broad range of discretion in the performance of public duties,
       including the discretion to institute proceedings in any case of purely public interest.
       [Citation.] The primacy of the Attorney General in that respect is not open to question.” People
       ex rel. Alvarez v. Gaughan, 2016 IL 120110, ¶ 31, 72 N.E.3d 276.
¶ 23       Being mindful of these general principles regarding the authority granted to the Attorney
       General, we now consider whether there exists a conflict such that the Attorney General should
       be enjoined from representing CMS and a special Attorney General should be appointed.

¶ 24                                       C. Conflict of Interest
¶ 25       CMS argues the court erred in its construction and application of controlling precedent
       regarding the appointment of special counsel in light of a conflict—namely, Suburban Cook
       County Regional Office of Education v. Cook County Board, 282 Ill. App. 3d 560, 667 N.E.2d
       1064 (1996) (hereinafter Suburban Cook). In turn, the Attorney General argues this case does
       not involve a conflict of interest within the meaning of section 6 of the Attorney General Act


                                                    -5-
       (15 ILCS 205/6 (West 2014)) and, in support, points to Environmental Protection Agency v.
       Pollution Control Board, 69 Ill. 2d 394, 372 N.E.2d 50 (1977) (hereinafter EPA).
¶ 26        Before turning to these cases, however, we note section 6 of the Attorney General Act (15
       ILCS 205/6 (West 2014)) provides, in pertinent part, “Whenever the attorney general is sick or
       absent, or unable to attend, or is interested in any cause or proceeding, civil or criminal, which
       it is or may be his duty to prosecute or defend, the court in which said cause or proceeding is
       pending may appoint some competent attorney to prosecute or defend such cause or
       proceeding ***.”

¶ 27                               1. The Supreme Court’s Decision in EPA
¶ 28       We turn first to the supreme court’s decision in EPA. EPA involved a pair of appeals in
       cases with the Environmental Protection Agency (Agency) and the Pollution Control Board
       (Board) as adversaries. EPA, 69 Ill. 2d at 397-98, 372 N.E.2d at 50-51. In one case, the
       Attorney General filed an appearance on behalf of the Board but withdrew following the
       Agency’s motion to strike that appearance. Id. at 397, 372 N.E.2d at 51. The appellate court
       found the Attorney General was “interested” in the case and allowed the motion to withdraw.
       Id. In the second case, the Board requested the advice of the Attorney General regarding the
       appointment of counsel, and the Attorney General said the Board could represent itself at its
       own expense. Id. at 397-98, 372 N.E.2d at 51. In both instances, the Attorney General
       represented the Agency. Id. at 397, 372 N.E.2d at 50-51. The issue presented was “whether a
       State agency [(in this case, the Board)] may employ private counsel to represent it and have his
       or her fees paid by the Attorney General.” Id. at 398, 372 N.E.2d at 51.
¶ 29       At the outset, the supreme court noted the long-standing history regarding the powers of
       the Attorney General and stated:
               “It is sufficient to observe that this court has consistently held, under both the 1870 and
               1970 constitutions, that the Attorney General is the chief legal officer of the State; that
               is, he or she is ‘the law officer of the people, as represented in the State government,
               and its only legal representative in the courts.’ [Citations.] Although there has been
               criticism of this virtually exclusive grant of power to the Attorney General, this court
               has not wavered from that view, and critics recognize this is the law.” Id. at 398-99, 372
               N.E.2d at 51.
       The Board impliedly conceded the Attorney General was its legal adviser, but it argued the
       Attorney General refused to represent the Board because it would have resulted in a conflict of
       interest. Because of this, the Board maintained the appellate court should have appointed
       private counsel based on the predecessor to section 6 of the Attorney General Act, set forth
       above. Id. at 400, 372 N.E.2d at 52.
¶ 30       The supreme court disagreed that the Attorney General was “interested” in the case such
       that her representation of the Board would have resulted in a conflict. Id. The court held, “The
       provision of section 6 that special counsel may be appointed where the Attorney General is
       interested should be limited” to two situations: (1) where the Attorney General is interested as
       a private individual and (2) where the Attorney General is an actual party to the action. Id. at
       400-01, 372 N.E.2d at 52. In so holding, the court noted the Attorney General’s real client is
       the People of the State, and her relationship with State agencies she represents is not
       constrained by traditional parameters of the attorney-client relationship. Id. at 401, 372 N.E.2d
       at 52-53. “[A]lthough an attorney-client relationship exists between a State agency and the

                                                    -6-
       Attorney General, it cannot be said that the role of the Attorney General apropos of a State
       agency is precisely akin to the traditional role of private counsel apropos of a client.” Id. In
       conclusion, the court observed:
                  “The Attorney General’s responsibility is not limited to serving or representing the
              particular interests of State agencies, including opposing State agencies, but embraces
              serving or representing the broader interests of the State. This responsibility will
              occasionally, if not frequently, include instances where State agencies are the opposing
              parties. It seems to us that if the Attorney General is to have the unqualified role of
              chief legal officer of the State, he or she must be able to direct the legal affairs of the
              State and its agencies. Only in this way will the Attorney General properly serve the
              State and the public interest. To allow the numerous State agencies the liberty to
              employ private counsel without the approval of the Attorney General would be to invite
              chaos into the area of legal representation of the State.” Id. at 401-02, 372 N.E.2d at 53.

¶ 31                        2. The First District’s Decision in Suburban Cook
¶ 32       In Suburban Cook, 282 Ill. App. 3d at 564, 667 N.E.2d at 1066, the superintendent of the
       Suburban Cook County Regional Office of Education sought funding for his office from the
       Cook County Board, but the funding request was denied. Pursuant to section 3A-15 of the
       School Code (105 ILCS 5/3A-15 (West 1992)), the superintendent requested the State’s
       Attorney to file suit against the Cook County Board. Suburban Cook, 282 Ill. App. 3d at 564,
       667 N.E.2d at 1067. The State’s Attorney declined to file suit based on his belief the Cook
       County Board was not responsible for the funding and urged the superintendent not to hire
       private counsel, as the State’s Attorney was the superintendent’s legal representative. Id.
       Nevertheless, the superintendent hired private counsel to file suit against the Cook County
       Board. Id. The trial court denied a motion to appoint private counsel as a special State’s
       Attorney to represent the superintendent pursuant to section 3-9008 of the Counties Code (55
       ILCS 5/3-9008 (West 1992)). Suburban Cook, 282 Ill. App. 3d at 568, 667 N.E.2d at 1069.
       Instead, the court determined the superintendent “was a [S]tate officer and the [S]tate should
       bear the financial burden of the litigation.” Id. Accordingly, the court appointed private
       counsel as a special Attorney General under section 6 of the Attorney General Act (15 ILCS
       205/6 (West 1992)). Suburban Cook, 282 Ill. App. 3d at 568, 667 N.E.2d at 1069.
¶ 33       On appeal, the Suburban Cook court first determined the trial court erred in appointing
       private counsel as a special Attorney General in light of section 3A-15 of the School Code,
       which placed a special duty on the State’s Attorney to represent the superintendent and
       removed any obligation the Attorney General had to represent him. Id. at 570, 667 N.E.2d at
       1070. The court then identified what was, and was not, at issue on appeal as follows:
               “This case does not involve an attempt on the part of a legislative body or the judiciary
               to diminish the powers of the State’s Attorney or to interfere with his discretion.
               [Citations.] Nor does it involve in a direct sense any conflict of interest on the part of
               the State’s Attorney [citation] or his right to represent separate public officials in a
               dispute between them. [Citation.] We say it does not involve those questions in a direct
               sense because the State’s Attorney did not represent both parties. ***
                   ***
                   What is involved here is the very troublesome question of the right to
               representation of an elected official when his opinion of the law applicable to his office

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               is in conflict with the opinion of the lawyer whose statutory duty is to represent that
               elected official.” (Emphasis in original.) Id. at 570-71, 667 N.E.2d at 1071.
       However, the Suburban Cook court went on to note the facts of the case “disclose[d] that a
       conflict exists between the interest of the plaintiffs [(the superintendent)] and the interest of the
       [Cook County] Board and that appointment of [private counsel] would remove the taint of a
       real and not just a perceived conflict.” Id. at 573, 667 N.E.2d at 1073. Because of these
       adversarial interests, the Suburban Cook court sought to reconcile the supreme court’s ruling
       in EPA. Id. at 574, 667 N.E.2d at 1073. The court noted EPA did not stand for the proposition
       that an Attorney General or a State’s Attorney may always represent two opposing officials
       whom they are required to represent. Id. The court emphasized the fact that the Board in EPA
       hired its own private counsel and then sought fees from the Attorney General without
       appointment of such counsel by the court. Id. Finally, the Suburban Cook court pointed to the
       supreme court’s observation, in dictum, that the appellate court had the discretion to appoint or
       to deny the appointment of special counsel. Id.
¶ 34       The appellate court ultimately ruled the “proper procedure in cases where an irreconcilable
       conflict arises between two officials the State’s Attorney is obliged to represent would require
       the invocation of the court’s discretion” to appoint special counsel. Id. at 575, 667 N.E.2d at
       1074. The court observed, “That procedure would insure that the official could not arbitrarily
       seek representation from a private attorney, nor seek private representation to advance a
       frivolous legal position. If the official is able to establish a colorable claim which the State’s
       Attorney is unwilling to support or if the State’s Attorney is representing two agencies which
       are in conflict, the court should be able to exercise its discretion and to appoint private
       counsel.” Id.

¶ 35                             3. Application of EPA and Suburban Cook
¶ 36       In the instant case, the trial court noted the potential for “chaos” if it determined the
       disagreement as to what argument the Attorney General should raise constituted a conflict of
       interest such that special counsel should be appointed. The court observed the unique powers
       and constitutional authority the Attorney General holds in representing the State in litigation
       include the responsibility to decide what arguments, strategies, and litigation tactics to employ.
       The court ruled CMS’s disagreement with the Attorney General’s strategy was not a valid
       basis to justify the removal of the Attorney General from all workers’ compensation cases
       involving personal assistants. The court also found Suburban Cook distinguishable.
¶ 37       The present case clearly does not fall within one of the two situations the supreme court
       determined were disqualifying conflicts in EPA. The Attorney General is not individually
       interested in or a party to the underlying workers’ compensation case, nor is the Attorney
       General in the position of representing opposing States agencies. Although CMS might
       disagree as to what argument the Attorney General makes, that disagreement is insufficient to
       qualify as a conflict of interest such that special counsel should be appointed. We turn now to
       Suburban Cook.
¶ 38       We find Suburban Cook factually distinguishable. The State’s Attorney in Suburban Cook
       refused outright to file suit on behalf of the superintendent and was representing the Board. In
       this case, the Attorney General is not refusing to represent CMS before the Commission.
       Indeed, the Attorney General is “vigorously defending” the workers’ compensation cases at
       issue here. In so doing, the Attorney General is refusing to raise an argument that has

                                                     -8-
       repeatedly failed before the Commission. As discussed above, the Attorney General has broad
       discretion to conduct litigation on behalf of the State, including “evaluating the evidence and
       other pertinent factors to determine what action, if any, can and should properly be taken.”
       Lyons, 201 Ill. 2d at 539, 780 N.E.2d at 1105. We find the Attorney General’s refusal to raise a
       historically unsuccessful argument falls within this discretion. We note the Commission
       has—for at least the last 15 years—rejected the very argument CMS wants the Attorney
       General to make. Indeed, the Attorney General’s office has been threatened with penalties and
       fees because its “continued denial of the employment relationship with personal assistants is
       unreasonable and vexatious in light of the numerous decisions so finding that relationship.”
       McBride v. State of Illinois, Department of Rehabilitation Services, No. 02 W.C. 25008, 2004
       WL 2832075, at *1 (Ill. Indus. Comm’n Oct. 21, 2004). The Attorney General’s refusal to raise
       this argument does not constitute an arbitrary interference with CMS’s statutory authority to
       make the initial determination as to the compensability of personal assistants’ workers’
       compensation claims. CMS may continue to make the initial determinations on whatever basis
       it determines is appropriate. But that cannot mean the Attorney General must raise a losing
       argument, risk facing penalties and fees, and be denied the ability to conduct the course of
       litigation in these cases.
¶ 39        We acknowledge CMS’s argument that it has presented a “colorable” claim that personal
       assistants are not State employees based on the United States Supreme Court’s ruling in
       Harris, 573 U.S. ___, 134 S. Ct. 2618. However, we agree with the Attorney General that the
       Supreme Court found the personal assistants were not “full-fledged” State employees in the
       context of federal first amendment claims. The Supreme Court specifically stated its ruling
       was not based on State law. Id. at ___ n.10, 134 S. Ct. at 2635 n.10 (“Our decision rests in no
       way on state-law labels.”). Additionally, we do not think that decision has any bearing on
       whether a conflict of interest exists such that the Attorney General should be disqualified in
       this case. We reiterate the language from EPA: “if the Attorney General is to have the
       unqualified role of chief legal officer of the State, he or she must be able to direct the legal
       affairs of the State and its agencies.” EPA, 69 Ill. 2d at 401-02, 372 N.E.2d at 53. It is
       undisputed the Attorney General has broad discretion in representing the State in litigation
       where the State is the real party in interest, and her decision to refuse to raise an
       argument—particularly an argument which has repeatedly failed before the Commission—is
       within that discretion.

¶ 40                                      D. Separation of Powers
¶ 41       In their reply brief and at oral argument, defendants argued the Attorney General’s refusal
       to raise the employer-employee relationship argument constitutes “a severe separation of
       powers encroachment on the [e]xecutive [b]ranch.” However, this argument is not supported
       by citation to relevant authorities. Moreover, the Attorney General’s “duty to conduct the law
       business of the State” is an executive branch function. Fergus, 270 Ill. at 342, 110 N.E. at 145.
       “The separation of powers doctrine applies only to powers assigned to separate branches of
       government.” People ex rel. Madigan v. Snyder, 208 Ill. 2d 457, 479, 804 N.E.2d 546, 560
       (2004). Accordingly, we find this argument unpersuasive.




                                                   -9-
¶ 42                                   III. CONCLUSION
¶ 43   For the reasons stated, we affirm the trial court’s judgment.

¶ 44   Affirmed.




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