Cook County Record

Thursday, April 9, 2020

Appeals panel: State agencies can't hire own lawyers when disagree with Atty Gen's legal strategies

By Jonathan Bilyk | Jun 23, 2017

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A state appeals panel has refused to allow a state agency, under the supervision of Republican Gov. Bruce Rauner, to hire its own legal representation amid a conflict with Democratic Attorney General Lisa Madigan over legal strategy in defending against workers compensation claims brought by an independent personal assistant for those with disabilities who claimed she should be treated as a state employee after the state empowered a union to represent her.

On June 22, a three-justice panel of the Illinois Fourth District Appellate Court in Springfield upheld the ruling of Sangamon County Judge John Madonia, who had dismissed the lawsuit nominally brought by Michael L. Hoffman, director of Illinois Central Management Services, the state government’s administrative agency.

The decision was authored by Justice Lisa Holder White, with justices Thomas R. Appleton and James A. Knecht concurring.

The case landed in Sangamon County court in 2015, when CMS asserted the court should compel Madigan to appoint a special Assistant Attorney General to represent CMS before the Workers Compensation Commission, after Madigan purportedly refused to present the arguments desired by CMS.

The case centered on CMS’ defense against workers compensation claims presented by Stephanie Yencer-Price, who worked as an in-home personal care assistant for a person with disabilities, and was paid through state assistance provided to her client. Yencer-Price was among many such personal assistants designated as “state employees … for the purposes of collective bargaining” under the state’s Rehabilitation Act, which empowered the Service Employees International Union to represent her.

Initially, SEIU was also empowered to deduct fees from the checks cut by the state to the home care providers. However, that regime was overturned in the U.S. Supreme Court’s decision in Harris v. Quinn, which forbade the state from forcing such caregivers to pay money to the union.

According to court documents, Yencer-Price was allegedly later injured on the job, and filed two workers compensation claims against the state, claiming she should be treated as a state employee under the Rehabilitation Act.

CMS denied her claims, saying the Rehabilitation Act specifically designated personal assistants, like Yencer-Price, as state employees “exclusively” for collective bargaining, and explicitly not for “purposes of vicarious liability in tort and purposes of statutory retirement or health insurance benefits.”  CMS further cited the Harris decision, arguing Yencer-Price and similar personal assistants weren’t state employees.

However, when the case moved to the state Workers Compensation Commission, CMS said Madigan refused to argue CMS’ position, instead preferring to present Madigan asserted had historically been more successful at shooting down such workers compensation claims before the Commission.

CMS then asked the Attorney General to appoint different counsel to represent CMS before the Commission. That request was refused, prompting the lawsuit and appeal.

In his decision dismissing CMS’ lawsuit, Judge Madonia noted CMS’ request for special counsel courted “chaos,” should individual state agencies be allowed to hire their own lawyers every time an agency and the Attorney General differed on legal strategy, as it could “open the floodgates for judicial oversight of every litigation decision made by the Attorney General with which an agency disagreed.”

The appeals panel agreed with Madonia’s assessment.

“In this case, the Attorney General is not refusing to represent CMS before the Commission,” the justices wrote. “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 repeatedly failed before the Commission.”

The justices said Madigan, as the state’s legal representative, has broad discretion on legal strategies.

“… Her decision to refuse to raise an argument – particularly an argument which has repeatedly failed before the Commission – is within that discretion,” the justices wrote.

According to Sangamon County court records, CMS was represented in the action by attorney Lorilea Buerkett, of the firm of Brown Hay & Stephens, of Springfield.

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Organizations in this Story

Brown, Hay & Stephens, LLPIllinois Department of Central Management ServicesIllinois Fourth District Appellate CourtIllinois Governor Bruce RaunerIllinois Attorney General