University Legal Counsel and the Charter of Freedom

At a meeting of the Board of Trustees on January 23, 1943, President Meyer requested that Judge Johnson present the ruling of the Illinois State Supreme Court from January 21, 1943 [1] regarding the Universitys ability to employ private legal counsel. He presented the original text along with his own comments. Upon the conclusion of his presentation, he likened the courts decision to the Universitys Magna Carta, its charter of freedom. [2]

The salient points in the opinion of the court can be best understood in the light of the statement by the court itself of the question before it:

The decisive question is whether the Attorney General is, by virtue of his office, and in his official capacity, the sole legal advisor, counsel, and attorney for the University and its Board of Trustees. The solution of this question involves a determination of the statues of the University as a corporate entity and its relation to the State government, as well as the powers vested in the Attorney General by the constitution and the laws of this State.

The court held, after describing the organization and stating the history of the University both in relation to the Land Grant Act of 1862 and the charter by the General Assembly of the State of Illinois of 1867:

1. The University of Illinois, while not strictly a municipal corporation, is a public corporation, of the general kind and class of municipal corporations.

2. The employees of the University are employees of the State. Their selection is vested solely in the University; the State has delegated to the governing body the operation, administration, and management of the University; and as long as its present charter is in force, the State has committed to this corporate entity the absolute power to do everything necessary in the management, operation, and administration of the University.

3. The University may sue and be sued in connection with the exercise of its powers the same as if it were a municipal corporation; such powers can be taken from it only by amendment or repeal of its charter granting the powers; and the only power the State can exercise with reference to the administration and operation of the University is by limiting or withholding appropriations or by changing the statute.

4. As an incident of its corporate existence and the exercise of its corporate powers, it has the undoubted right to employ its own counsel or engage the services of any other employees it may deem necessary or proper, by contract or otherwise. This power must be exercised, however, always with a view to the requirement that when such faculty members or employees are paid from State funds they must be within the classification for which such funds have been appropriated and are available.

5. Neither the constitution nor the statues, however, have conferred upon the Attorney General the power, or imposed upon him the duty, to represent public corporations, their managing trustees, or other officers. No such powers or duties existed at the common law.

6. It is not the duty of the Attorney General to represent either the corporation or the trustees, by virtue of his office as chief law officer of the State. He has no right to do so. Both the University as a public corporation and its trustees are entitled to select their own legal counsel and advisor and to be represented in all suits brought by or against them by counsel of their own choice.

7. The members of the Board of Trustees are responsible to this public corporation, the University, whose managing officers they are. The corporate entity is the responsible trustee to the State. The members of the Board are elected solely as managing officers of the University, which is a public corporation. They exercise no powers as State officers, They do not function as such.

8. The Attorney General is not the legal advisor or representative of the members of the Board of Trustees because they are not State officers within the constitutional and statutory provisions making him the legal advisor of State officers.

In the second division of the opinion it is held that inasmuch as in the classification of positions and employments are made in the Appropriation Act there does not appear the position University Counsel or Assistant University Counsel as such, no funds have been made available to pay a person who is certified to the Auditor under such designation. The University having certified Mr. Johnsons position to the State Auditor under the title Professor and Counsel and no such specific designation appearing in the Appropriation Act, the court holds that the Auditor is technically correct in refusing to draw a warrant for such a position. The same is true of the certification of Mr. Hodges as Assistant University Counsel, for no such title appears in the Appropriation Act referred to. The court points out that when certification of Mr. Hodges as such on the University pay roll, the Auditor is not authorized to issue warrants because these positions have not been recognized in any legislative act by such a name. It points out that no division was made as to the amount due him for professorial services and the amount due him as University Counsel. (The Appropriation Act uses the classification Administrative Officer. The position of University Counsel has for many years been classified by the University as an administrative office.)

Referring to the importance of the decision, the University Counsel said:

No opinion prepared by the Supreme Court of the State of Illinois has been of comparable importance to the University. The decision establishes the independence of the institution in a degree similar to that of the great Universities of Michigan and Minnesota which, under the constitutions of those States, are free of State control except that the legislature determines the amount of money each shall have. Hence it is clear that the University of Illinois is only subject to the control of the General Assembly which, of course, has the power to change its charter and fix the funds available to carry out the purposes of its creation. The opinion is its Magna Carta, its charter of freedom.

On motion of Mr. Fornof, the matter of the method of payment of the University Counsel and theAssistant University Counsel was referred to the Executive Committee.