The newsletter of the ISBA’s Standing Committee on Government Lawyers
Attorney General issues opinions
Under section 4 of the Attorney General Act (15 ILCS 205/4 (West 2000)), the Attorney General is authorized, upon request, to give written legal opinions to state officers and state's attorneys on matters relating to their official duties. The following is a summary official opinions 02-006 through 02-007 and informal opinions I-02-0012 through I-02-036 that may be of interest to the government bar. (See, "Attorney General issues opinions" ISBA Standing Committee on Government Lawyers newsletter, June 2002, Vol. 3, No. 4, for a summary official opinions 02-001 through 02-005 and informal opinions I-02-001 through I-02-011).
Copies of an opinion may be requested by contacting the Opinions Bureau in the Attorney General's Springfield Office at (217) 782-9070. Copies official opinions may also be found on the Internet at <http://www.ag.state.il.us/opinions/>.
Opinion No. 02-006, issued May 7, 2002: certification of new enterprise zones. The language of subsection 5.3(d) of the Illinois Enterprise Zone Act expressly authorizes the Department of Commerce and Community Affairs to certify enterprise zones "in each of the 10 calendar years commencing with 1983." Thereafter, subsection 5.3(d) provides that "the Department may not certify any additional Enterprise Zones." Since the 10 calendar years commencing in 1983 have passed, the Department is not currently authorized to certify new enterprise zones. 20 ILCS 655/5.3(d) (West 2000).
Opinion No. 02-007, issued May 7, 2002: circuit clerk's collection of service fees from persons tendering payment by credit card. (1) Section 27.3b of the Clerks of Courts Act requires the clerks of the circuit courts to impose and to collect a service fee from those persons paying fees, fines and costs by credit card. To the extent that MasterCard® continued to accept sales and credit items from the DeKalb County Circuit Clerk, MasterCard® is deemed to have consented to the collection of the service fee. (2) To the extent that a merchant who has contracted with MasterCard® violates the provisions of its contract with MasterCard®, MasterCard® is entitled to collect a fine under the contract. The assessment of a fine in the current circumstances, however, is not appropriate. 705 ILCS 105/27.3b (West 2000).
Informal Opinion No. I-02-012, issued April 2, 2002: administrative enforcement of seat belt ordinances. A "primary stop" seat belt use ordinance would be considered "a municipal regulation governing the condition or use of equipment on a vehicle," and a violation of such an ordinance would be classified as a "compliance violation" for purposes of section 11-208.3 of the Illinois Vehicle Code. Therefore, a "primary stop" seat belt use ordinance may be enforced administratively in accordance with that section. 625 ILCS 5/11-208.3, 12-0603.1 (West 2000).
Informal Opinion No. I-02-014, issued April 8, 2002: liability for late payment charges. Counties are liable for the payment of late fees on claims only to the extent permitted under the provisions of the Local Government Prompt Payment Act. A county board is without implied authority to require that county department heads, whether elected or appointed, be held personally responsible for any charges incurred due to late payment of a bill for county goods or services. 50 ILCS 505/6 (West 2000).
Informal Opinion No. I-02-016, issued April 16, 2002: applicability of the Freedom of Information Act to public utilities. Under the Freedom of Information Act, public bodies are required to make public records available for inspection or copying. The phrase "public bodies" does not include non-governmental entities such as public utility companies. Consequently, the Commonwealth Edison Company is not subject to the provisions of the Freedom of Information Act. 5 ILCS 140/2(a) (West 2000).
Informal Opinion No. I-02-018, issued April 16, 2002: recording of documents having digital signature. A county recorder has a duty to record any instrument that he or she receives that is entitled to be recorded, including those instruments having digital signatures executed in accordance with the Financial Institutions Digital Signature Act. The recorder is without authority to pass upon the validity of such instruments or signatures. 55 ILCS 5/3-5010 (West 2000); 205 ILCS 705/10 (West 2000).
Informal Opinion No. I-02-021, issued April 18, 2002: reporting of convictions to secretary of state. It is not necessary, based upon due process principles, that a defendant be informed that his or her entry of a guilty plea for felony Illinois Vehicle Code violations will be reported to the Secretary of State and may result in the revocation or suspension of driving privileges. Further, while the circuit clerk is required by statute to report convictions for violations of the Vehicle Code and certain other felonies to the Secretary of State, the State's Attorney is under no such obligation. The reporting of felony Vehicle Code violations and convictions by the State's Attorney to the Secretary of State for possible action under section 6-206 of the Vehicle Code is discretionary. 625 ILCS 5/6-204, 6-205, 6-206 (West 2000).
Informal Opinion No. I-02-025, issued May 1, 2002: state's attorney's representation of circuit clerk outside his county. Under subsection 3-9005(a)(4) of the Counties Code, a State's Attorney is under a duty to defend a county or State officer in an action or proceeding "within his county." Although circuit court clerks are now considered non-judicial officers in the judicial branch of State government, because clerks of the circuit court were considered county officers entitled to representation by the State's Attorney regardless of venue for over 100 years and because there is a nexus between the proceedings and the county, the clerks of the circuit courts should be considered county officers for purposes of subsection 3-9005(a)(4) of the Counties Code. Therefore, it is among the State's Attorney's duties to represent the clerk of the circuit court in a nonjudicial proceeding in an administrative tribunal in another county. 55 ILCS 5/3-9005 (West 2000).