and that is the governor and that turn in general and the question boils down to this after the governor has made a determination which is consistent with his constitutional authority as the supreme executive power and in of illinois and after that determination is has been challenged by one of those claimants does the attorney general have the veto power over the governor's decision when in the workers compensation tribunal she says i agree that you could have exercised the power before but now we're in litigation and i'm in charge and therefore i'm not allowing you to present that argument i'm not allowing you to say to the work's compensation tribunal that that's what you did that's why you made that determination i'm not going to allow you to defend that determination you cannot do any one of those things because we are in charge we represent you and that's a fact of the power does the attorney general have that veto power over the governor's term nation the answer to that question is no he does not should does not because  attorney general and her constitutional obligation she can feel on behalf of the state and its people to advocate whatever point she wishes to make to the workers compensation tribunals but the important element is that the governor will be able and his agent in this before us is the very troublesome question of the right to representation when a public officials opinion of the law political that his office has in conflict with the opinion of the lawyer for statutory duty is to represent that party and the come out since none of those cases are point because they don't deal with the unique situation that was presented to the suburban vote which is what do you do when you have two constitutional officers and in that case it was a public school official but the comment that dallas has is the same you have two officials want has that measure trade responsibility and is arguing to advance the law political to his or her office and the other one is the constructional legal officer whether they're trying general or the state's attorney announce a let me ask you what do the factual differences in suburban current and the case before and how does that impact or are now it's because of course in suburban atlanta you had an obligation on the part of the state's attorney to represent both will ring entities we don't have that here and so that language that you cited is very strong and relevant language but if they really have to resolve that issue so i will say better is yes your honor they did and i will give you two points on that one in suburban cook itself what they talked about is and you get that in the statement of the rule of law that emerges the court says if the fischel is able to establish a tolerable claim which they turn in general is unwilling to support and then rights who are in conflict we don't have and here you do not and i and i will and i will concede that you do not have that here but the important part of suburban vote in the law that it develops because of that or it's either one of those things would apply because the conflict in represents two parties or they're trying to generals on that they are half of the state we have the same issue because the separation of powers problem between the governor and the attorney general has the same and the second point i would make to you and your question which i think goes to the heart of this case is yes they try to gentles obligated to represent the person yes there's a potential conflict but the case is not really about the conflict between the trend journal shown up on both sides of the case and the reason for that is they turned general correctly points out is e p a attorney general public official isn't disagreement with that turning general or the state's attorney about a point of law that applies to the public officials discharge of his of our applications in office so the the issue with and this comes totally does not focus necessarily on there being two parties that the trunk has to represent that's on or and so either one of those things on the other side of that or your view of the rule of law and we have the situation which is the first want where the official is able to establish a tolerable they're trying to get all does not argue that our claim is not tolerable but it goes to the merits of the underlying worker's compensation issue where we have a caller will position that in this case employees not employees of the state of illinois and therefore we can reject those claims on the basis of the lack of the courtroom or your relationship and that brings me to the question now what is a comical crane and is there a difference between a colorable claim where defending something that someone else is seeking against you is that is there a difference i don't think there isn't this case your honor because what you're what you focus on is the before this case goes to litigation right so we start here with the governor asks has his counsel his own house counsel or buys and the agencies are asking general counsels for advice on what do you think we should do here and that's the it's the horrible claim in the nature of that the way of saying that i think is is there a collar of a legal determination is there are you basing your actions on a color of what your law which will be distinct from if the governor were to go out and just advocate for positions that are blatantly unlawful that we would not argue that we have the ability to defend that position in court so i think the distinction is between a public official who is acting in the way that is defensible you can say that he has a good faith basis to believe that his actions are proper and they're based on the collarbone you off the law remember the key point is we bow to the workers compensation commission and if we are not alive allowed to articulate the reason for our decision and we are as good as dead on arrival right because we haven't we had the opportunity to make that determination in th disagreements there are not a step an end to the other countries and officers administrative responsibilities it's disagreements about well do you take this deposition you engage in the certain discovery all that would concede that's attorney general she is the chief legal officer for the state of illinois gets to make those both determinations so what we're focusing on is a very narrow circumstance where i don't see it arise and too often in our experience in the last two and a half years and it's this case and there is one but even if you set that aside and you go to the basic first principles you focus on the training general's brief is says a lot of things about her powers of the of the role as the legal officer on behalf of the state and its people with large not focus on a specific government official and our answer to that is all of that is not in dispute all of that is precisely correct that turn in general is the officer who speaks for the state in litigation but there is an important  larry which is one they're trying to general speaks on behalf of the state or the people what if you have a situation what the government official who is involved in that case and whose administrative decision is being challenged in those cases how do you analyze that government officials role and his and her ability to do found that decision if it's challenge and this is where the separation of powers principles you look at them together the attorney general and the responsibilities and if you if you accept the the rule that we are advocating for in this war what you find is that it doesn't take away from their true general side of the balance at all she is still able in all of those workers compensation cases that we're talking about she's able to be before the workers comp commission on behalf of the state attorney general is the chief legal officer i would think is able to come to just about any preview and all in the state of illinois and she's not going to get turned away from the judge because there is independent counsel representing the government official that charge in general and always say that on behalf of a party in interest so one of the real partisan interests which in a lot of those cases would be the state of illinois she can say on behalf of the state we are advocating that the governor is incorrect she's able to say that nobody is taken away from the attorney general's separate separation of powers if you want to be supplement yes we're we're we're trying to say that a different construction officer decision has to be presented and defended without taking away their turn gentles ability to advocate a country point is it true that there's a history of this argument being the argument about the employer believe your employees status and then and but rejected by me yes it is true you are and let me just put that in context so we have that in cases going all the way think up to two speech it is limited to free speech or honor but it's not the case has all the cases of no use for the workers comp commission i think according to what the supreme court justices have said you could well argue in the worker's comp proceedings that you know what actually the employer employee relationship has been rejected in the different context by somebody else and yes that was a first amendment case and this was a worker's comp case but it's not as though the views of the u s supreme court could be completely ignored on this question the workers different forum and prevailed on an argument that she lacks the employee employer relationship so i think a very least we can point out to the workers compensation commission that before you is a person who in a different case i don't want to go as far as saying that she is judicial because i don't want to think through exactly the implications of how she argued her case in the supreme court but it is true that a warrior saves us something that you know in advance that the attorney general would point that out just as a matter of interest she would not there they've told us specifically they're not talking about them or employer relationship they're not raising their defense it is as good as we've never decided this case now before the workers comp the mission is the equivalent of the governor network rejected the claim based on the life of the employee of the relationship and  here because in their brief and i would focus on pages and for the want of the attorney general's brief they make the statement which is similar to what they are good judgment on their below they said we're not interfering the governor's able to do whatever he wants to do until the case goes to litigation in which case we get to do whatever we want to do well that's of course is they have the problem here which is if in litigation they try and general can say no i'm i'm just regard and everything that you've done what good is that power or some of us have sat all three of us had extensive experience of trial judges are a lot of people that complain the state's attorney knows too much power representing the people of the state of illinois but sometimes taking a viewpoint different than the victims or other citizens on how crime should be processed and the answer always was the ballot box if you're elected official doesn't do what they're supposed to do the remedy is at the ballot box how is that any different here to respond to your honor that the governor of course is also also stands for election so you can always go to him based on the same rationale but the important point i'll make you  before my time is up is we're not saying that they're turning gentle businesses we're not saying she's make an eight and improbable legal arc it's for her to determine on behalf of the state what argument to make all we are saying is that a limited context where this is the argument goes to the very nature of how the governor goals of charging his constitutional responsibilities in order for him to stand before the electorate and defend his position he has to be able to play it all the way out as opposed to any factual you will find something i think permissions have the governor is always able to say i did everything right but that i'm not accountable for any of those things because that one to litigation and somebody else i think is precisely to a while the governor to be fully accountable to his electorate to say those are the decisions that i made him to start in my constitutional responsibilities and one they were challenged in litigation on behalf of myself the governor of state of illinois i made the defense of those general here has the power to speak on behalf of the state but in this case the governor too has the authority under the constitution that he is but that he wishes to present to the worker's compensation tribunal so that it's clear what the decision is made ma because otherwise the workers compensation tribune all can look in the eye of the person who's there on behalf of the state and say well i don't get it why did you make this determination one of there's no other defense in a lot of those cases there is no additional defense except for the life of the employee employe central management services six truly extraordinary beauty which is the removal of the attorney general from the exercise of her constitutional authority as the exclusive representative of the state in all preserve that exclusive authority to represent the state before the courts including the power to control the conduct of that litigation the appellant in this case says that this is a small case limited to its context they try and describe a variety of of limitations or so called firewalls but i think the court should not miss under this understanding or underestimate the sweeping ramifications of the claim that the plaintiffs presenting in this case which is that the courts should sit in judgment of the discretion discretionary executive functions of the attorney general acting as one of the elected constitutional officers of the state of illinois elected by the voters with a separate responsibility to represent the state in all matters in litigation including administratively the sweeping ramifications of that are are so far reaching that i agree with  my colleague that this is a case of extreme importance for the administration of justice in the state and the division of responsibility between the different parts of the executive branch of st government it is the case in illinois unlike the federal government we have a divided executive by constitutional design there are multiple executive officers in the exec and those include the governor the comptroller the treasurer the secretary of state and the attorney general who is identified in the constitution as the legal officer of the state not the legal officer of some agencies not a legal officer of some lower executive officials and indeed supreme court precedent from one hundred years ago the first versus russell case makes clear that the attorney general's room exercise of that function includes representing the executive officers of the state for which he has the exclusive power the constitution answers this question and supreme court precedent answers this question which is that when the state is the real party in interest in litigation the speaks with a single voice and that is the voice of the attorney general and as this four recognized just last year in the super to its case and the illinois supreme court has repeatedly recognized the design of the constitution is to have you turn a general exercise their discretionary responsibility in the broader interests of all of the people to see it the way not the particular interests of a given agency or official or officer who happens to be the named a party in a particular piece of litigation this is not a novel concept in holes words well regarded treatise on the history of english law he makes clear that in the mid seventeen hundreds long before the  constitution of eight hundred seventy was adopted the attorney general took the position that he was answerable to the people of the realm not just particular ministers and he specifically consciously and affirmatively refused to take positions that ministers demanded he take when he believed that that was not in the interest of the people that is the construct that illinois has adopted in its constitution and the plan of here is asking this court essentially to or trying that decision in one nine hundred seventy constitution despite the constitutional convention debates that established unequivocally that the decision made was to preserve the structure that was adopted in each hundred seventy constitution and in the fergus versus russell case with all litigation in which the state is the party in interest of i don't know i could go on trying to emphasize the significance of the case but i believe the court gets my point which is that this is a discretionary function and there are very troubling implications from the notion that the court should now decide whether they believe that the attorney general may have exercised that discretionary function in a wise just reasonable or even arguably arbitrary manner and that is like prosecutorial discretion for states attorneys the going down that road would essentially involve the courts in doing something th suit we're talking about executives and in that respect the courts always have upon the claim of somebody with standing to police the exercise of executive functions to make sure that they are within the restrictions of the constitution and governing step but that's not what ish it what's at issue here what's at issue here is a desire to have the courts sit in judgment of the exercise of you turn the generals discretionary power in an area where there is no constitutional prohibition on what she's doing there is no statutory prohibition on what she is doing it's a discretionary function and they are saying that the courts should just go ahead and decide whether they agree or disagree with the exercise of their function and if they disagree that she's exercising it any appropriate way that they can order her replacement with somebody else or order somebody else to stand beside the attorney general in a case so that you have multiple voices speaking for the state this is one of those will the real attorney for the state police stand up problems but the supreme court has resolved that and and explained that under the constitution there is an exclusive power not just a power that can be supplemented by other people when it's considered appropriate now no principle of law or few principles are absolute and this one also recognizes its exceptions and those include the situation in which there is an actual conflict of interest and that's the classic it's a situation in which an attorney is representing opposite parties in the same case or has a duty of loyalty conflict based upon a personal interest or  interest to some other client and what's what's significant here is the supreme court has spoken on that issue has said that section six of the attorney general lack the simply governs it  are situations in which courts do have the power to remove the attorney general for a compliment those are two narrow situations where she is personally interested in the case math here and when she is an actual party to the case not does not apply and it does not provide any basis for the courts to exercise their legitimate statutory authority to deal with those situations in which that conflict justifies disqualifying the attorney general i do want to emphasize that conflicts of interest in the realm of private counsel and conflicts of interest in connection with representation of the government by government lawyers have different rules and that's consistent with the basic prank work of the rules of professional conduct that recognize that the rules that govern private lawyers which was the main focus of the rules professional conduct for many years those are not the same they operate in a fundamentally different way with respect to both conflict of interest issues and the separate conceptual issue which is who has the party to control decisions in connection with the litigation that's a separate will one point two one t clear consistent with supreme court precedent again that in situations where the government is the client and the government was farmers representing climb but very often it is the lawyer not the client who has the ability to make that decision and that is essentially because the lawyer often has to represent the public interest or in the case of the attorney general the interest of the people of the state of illinois at large not just the particular interests of whoever happens to be named a party in a case whatever the state official or state agency i also want to reinforce the idea that  we are we are dealing with a situation in which other states krissy differently in arizona for example the case law is clear the attorney general answers to whatever the edens who says they want to do their like a good law firm for all the different agencies of state governor the agency says we want to argue that this statute is ambiguous and it means one thing the attorney general can't say will really no that's against the interests of other agencies that deal with that statute all the time i'm not going to take that they have to answer what the agency says they do and in illinois the position is the opposite we have a unitary executive function with respect to the representation of the state i also want to clarify that this should not be confused with situations in which a government official state official is sooty in their individual capacity or in their personal past those are different cases that's like a civil rights case against a state policeman for excessive force and making an arrest where the real party in interest isn't the state the defendant is the individual and they're the attorney general is not exercising  constitutional authority to represent that differ there's a separate statutory authority and the the rules regarding the conduct that representation are not relevant here that's a totally separate issue we're talking about situations in which the state is the real party in interest and i don't in less three questions about that specific classification i'll assume that the court clearly understands that sanction which is relevant here so the plaintiff has offered three different arguments over the course of th i think we disposed that they have a centrally planned there is no conflict of interest in this case although that is significantly exactly the factual situation and that the saw all relevant basis for the holding in the suburban book well i wanted to ask you about that counts of language that opposing counsel quoted and where it talks about if the official is able to establish a color of a plane was the state's attorney is unwilling to support the court should be able to exercise its discretion in to appoint private counsel were that the court did say that we disagreed that that was a basis for the court's holding there was a motion for reconsideration the court made it clear that the basis for its holding was  the supreme court rules governing lawyers though at that time the rules of professional conduct of nine hundred ninety which have changed they're no longer the same and it said based upon that hamp look of interest we can remove an attorney if we need to now it's sort of nice to think that whenever a government official is a party to litigation they should be able to call the shots but that's down that road the illinois supreme court has said is going to lead to chaos in the representation of the state instead of speaking with a single voice and exercising the type of unitary discretion with respect to states representation that the constitution adopts then we would have a divergence of multiple voices potential conflicting positions important issues and i can imagine a cafferty of a positions taken by the state but the state shouldn't be speaking with divergent voices the state shouldn't be contradicting itself left and right just because one agency had decides that he wants to take a position that's colorable or non frivolous we have a difficult situation that are in the office of the attorney including whether to take an appeal from a clear injunction i've had conversations with government this situation isn't really much different whether to take an appeal whether to a sort of positioning for the commission that's been routinely rejected by the commission in which the attorney general was threatened with sanctions for persisting in taking that position after was sion to make those decisions and that is really the nub of the matter that is the heart of it so suburban cook has other problems i could elaborate on them they felt free to criticize the supreme court's decision in e p a versus the explicit representation of the state and the power to control the conduct of that representation in the broader interests of the people of the state of hawaii the the  that the heart of this question is exactly that which is when there is a disagreement between the attorney general we respect will litigation matter and what arguments should be made what claims should be contrary notwithstanding that precedent is controlling that includes the e p a versus p c b case itself where the p c b said we want separate counsel that the attorney general won't appoint and the and the court on a point in the supreme court said if you allow every agency to have appointed counsel whatever the attorney general produces two point one there would be chaos in the representation of the state and essentially although the plaintiff your argues that no this is just a narrow little ruling that's like the camel saying well just let me put my nose under the tent this fox a we know what the next situation is going to be well if we have the right to stand at counsel table and take a contradictory position in one case then we have the right to decide whether to take an appeal we have the right to decide whether to accept to accept the settlement there is no real stopping point and although there are certainly fine policy arguments to be made for adopting an alternative position with respect to the executive exercise of state functions in litigation the constitution has resolved it should the plaintiff appears to have been abandoned the position that the attorney general's position in this case is arbitrary age three in their  say it makes no sense to question whether she is acting arbitrarily but they say this case warrants her the displacement of her exclusive authority to represent the state because they say she personally disagree he's with a position that they want to take and in support of that they quote out of context a statement made by the by the attorney general in the brief in the satisfy that test for first amendment purposes but their own proposition here about the disagreement with your tribunal has refuted by the their opening brief where they explain on pages twenty four twenty five that even after the harris case we have outside the commission advocated the very position that they want to advocate which is that these personal assistants are not employees of the stay in the in the in the daily both of those cases the attorney general is taking that position to say that we disagree with it is is a stretch or an exaggeration that should not dignify your response but remember one of the ramifications of the position they want to do they want the  now into in light of all the many factors that the attorney general weighs in these cases whether there was a good exercise of discretion or whether there is a good basis to disagree with an executive official respect to a matter in litigation i don't think that that's a proper  for the courts to go down i urged or not to adopt that premise and try and divine the subjective motivations of executive officials respective discretionary functions that are limited by a statutory masters limitation finally with respect to usurpation of the c m s director's own executive functions the statute gives him with his back the claims filed before two thousand and thirteen the right to make an initial determination about compensable we're not stopping him from making those initial terminations to the extent there is still cases in the pipeline of work he can do that but the boundary here is the boundary that is reached when litigation began and when late edition begins that's the only boundary that can be policed how else are you going to say that that any action taken by the attorney general representing the state litigation may have ramifications with respect to the future exercise of other executive functions the only boundary that could be recognized is the one where if it's in litigation the attorney general essential he has the authority to control the representation subject to the narrow limitations that the supreme court has recognized thank you can thank you your hon w printout is the character of that begins we conclude that turning general in this case should have offered called her an elected official the representation sure requested in light of her colorable claim that her office was being unconstitutionally terminated by the university act and then and then they go on and analyze so what else does she have to deal if she has a conflict or she represents both sides of the case i think the punch line that develops from suburban coke as well as from edgar vitaly where the case the edgar describe suburban cook as we reaffirm the ruling in lane one which is the shorthand that they use for suburban cook so i don't see how i am not aware of the separate opinion on reconsideration and this is that opinion that governs for suburban used the conflict of interest that they turn in general says we are banned and that argument we're not abandon that in the sense of the conflict of interest here is the attorney general on behalf of the state which is to advance certain arguments but what does that do to not just a case of out there trying general or the state's attorney coming in on both sides of the d but even if that war i would submit to your honor that regardless of suburban decode the argument of war making here and what the position that we're advocating for makes sense on the basis of the first principles of separation of powers that we work elated because of the end of the day what the attorney general with what mr haas has not articulated is well what is the answer to this issue of the governor makes the determination that is as good as dead when the matter  and to litigation before the workers compensation tribunal what is left of the governor's power i mean it's not as though you can say that in some of those cases the workers compensation claimants will not challenge it of course that will they know that in the workers compensation commission that constitutional authority and all he we are advocating for is to be able to present and defend our administrative decision making not on behalf of the state not just placing that turn in general but being there to make sure that the here's why the decision was made in the best particular case that's especially important because there is no good you shall review from the tribunal there's no appeal to the courts there's no one else for this argument could be made down the road so the box is going to stop with the workers compensation