Ezel / AG Opinions / IL
IL 21-001 February 9, 2021

Can an Illinois lawyer hold a seat in the State Senate and serve as an assistant state's attorney at the same time?

Short answer: No. The AG concluded the two offices are incompatible. Assistant state's attorneys, like state's attorneys, exercise executive-branch power. State senators exercise legislative power. The Illinois Constitution's separation-of-powers provision (article II, section 1) bars one person from holding both, and that conclusion does not change based on how the assistant SA is paid or what specific duties they handle.
Disclaimer: This is an official Illinois Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Illinois attorney for advice on your specific situation.

Subject

Compatibility of Offices: State Senator and Assistant State's Attorney

Category

COMPATIBILITY OF OFFICES

Plain-English summary

Senate President Don Harmon asked whether the Attorney General's 1970 conclusion (in opinion NP-217) that the offices of state senator and assistant state's attorney are incompatible still held up under the 1970 constitution and modern case law. He also asked whether the answer changes if the assistant state's attorney is paid out of county or federal funds rather than state funds, only supervises other assistant state's attorneys, or is hired only on individualized cases.

The AG said the conclusion holds. The 1970 constitution's article II, section 1 ("The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another") was not intended to substantively change the separation-of-powers doctrine that article III of the 1870 constitution embodied. The 1925 Illinois Supreme Court decision in Saxby v. Sonnemann held a state senator could not also serve as deputy/assistant to the Attorney General without violating separation of powers. The same logic applies to the office of state's attorney, which the Illinois Supreme Court has consistently treated as part of the executive branch despite its location in the Judicial Article of the constitution. Because assistant state's attorneys are surrogates for the elected state's attorney, they exercise executive power. A state senator simultaneously serving as an assistant state's attorney would be exercising both legislative and executive power. That is unconstitutional. Once that constitutional problem exists, the AG said, the source of salary, the supervisory role, and the case-specific scope of the appointment do not matter.

Currency note

This opinion was issued in 2021. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Two doctrines govern. The first is the common law doctrine of incompatibility of offices: a single person cannot hold two public offices simultaneously when (a) the constitution or a statute specifically forbids it, or (b) the duties of the two offices conflict so that the holder of one cannot, in every instance, fully and faithfully discharge all of the duties of the other. This rule comes from cases such as People ex rel. Fitzsimmons v. Swailes, 101 Ill. 2d 458, 465 (1984).

The second is the constitutional separation of powers. Article II, section 1, of the 1970 Illinois Constitution states: "The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another." This provision was carried forward, in modernized language, from article III of the 1870 Constitution. The Sixth Constitutional Convention's drafters explicitly said they did not intend to change the substance of the separation-of-powers article.

Several pieces of fact-specific law also matter:

  • State senators are public officers. 25 ILCS 5/2 confirms it.
  • Assistant state's attorneys are public officers. Earlier AG informal opinions had so held (I-09-019, I-08-008).
  • State's attorneys are state officials in the executive branch, even though their constitutional authorization sits in the Judicial Article (Ill. Const. 1970, art. VI, §19). The Illinois Supreme Court has consistently said state's attorneys exercise executive power: People v. Ringland, 2017 IL 119484, ¶18; Nelson v. Kendall County, 2014 IL 116303, ¶¶27, 31.
  • Assistant state's attorneys act as surrogates for the elected SA. They possess "the power of the State's Attorney in the same manner and to the same effect as the State's Attorney." Office of the Cook County State's Attorney v. Illinois Local Labor Relations Board, 166 Ill. 2d 296, 303 (1995); Burger v. County of Macon, 942 F.3d 372, 375 (7th Cir. 2019).
  • State legislators exercise legislative power. Ill. Const. 1970, art. IV, §1.

The original 1970 NP-217 opinion (Attorney General Scott) had relied on Saxby v. Sonnemann, 318 Ill. 600 (1925), the Illinois Supreme Court decision holding that a state senator could not simultaneously serve as deputy to the Attorney General because doing so would violate the separation of powers in article III of the 1870 Constitution. The opinion also referenced article IV, section 3, of the 1870 Constitution, which forbade legislators from holding "any lucrative office" under the United States or this State. That dual-office prohibition survives in different form in article IV, section 2(e), of the 1970 Constitution: "No member of the General Assembly shall receive compensation as a public officer or employee from any other governmental entity for time during which he is in attendance as a member of the General Assembly."

Why the AG reached this conclusion

The 2021 AG ran the question through the modern constitution's separation-of-powers framework.

Step 1: Article II, section 1, has not changed in substance. The Sixth Constitutional Convention's Committee on General Government said the new separation-of-powers article was meant to "modify and modernize" the 1870 article without changing its purport. The voter pamphlet described article II, section 1, as "self-explanatory, and is derived from Article III of the 1870 Constitution." So Saxby v. Sonnemann's reasoning continues to apply.

Step 2: An assistant state's attorney exercises executive power. This is the doctrinal crux. State's attorneys are state officials. Even though their office is established in the Judicial Article, the Illinois Supreme Court has consistently classified them as part of the executive branch. They prosecute crimes, defend the state, advise local officials, and exercise broad prosecutorial discretion. Assistant state's attorneys, when they perform the general duties of the office, act as surrogates of the elected state's attorney. They wield the same power the elected state's attorney holds. So they sit in the executive branch.

Step 3: A state senator exercises legislative power. Article IV, section 1, of the 1970 Constitution puts the legislative power of the state in the General Assembly.

Step 4: One person holding both offices would exercise legislative and executive power simultaneously. That is the exact violation article II, section 1, prohibits. Saxby v. Sonnemann held the same conclusion in a closely parallel context (deputy to the Attorney General, also a state-level executive office in Illinois). Nothing in the cases or AG opinions issued between NP-217 and 2021 had cut the other way. The opinions cited by Senate President Harmon's letter (99-015, 1980 opinion at 116, 1976 opinion at 49) all involved local-government offices (community college board trustee, township supervisor, county board member) where Illinois courts had said the separation-of-powers doctrine "has never specifically been applied by the court to offices at different levels of government." Assistant state's attorney is not a local office; it is a state office.

Step 5: Once the constitutional incompatibility is established, the follow-up scenarios drop out. Senate President Harmon had asked whether the answer changes if the assistant state's attorney is paid out of county or federal funds, only supervises other ASAs, or is hired on a case-by-case basis. The AG said no. The constitutional violation is the same regardless of how compensation flows or what the case mix looks like. The court does not need to reach the duties-conflict prong of the common-law test once the constitutional separation-of-powers prong is hit.

The opinion's footnote 5 also flagged a separate common-law concern. Under cases like Swailes and People ex rel. Teros v. Verbeck, 155 Ill. App. 3d 81 (1987), incompatibility can arise when one office has authority over another's appointment, salary, or budget. State funding for state's attorneys flows through 55 ILCS 5/4-2001, with the General Assembly making the appropriation. A senator who is also an assistant state's attorney would be voting to appropriate part of his or her own boss's salary. That is a textbook common-law incompatibility, but the AG said it was unnecessary to rest the conclusion on it because the constitution already resolves the question.

Common questions

What is the office of state's attorney, and why does its location in the Judicial Article matter?

State's attorneys are independently elected county-level prosecutors. They are constitutionally established in Article VI of the Illinois Constitution, which is the Judicial Article. That has occasionally raised the question whether they belong to the judicial branch. The Illinois Supreme Court has answered no: state's attorneys exercise executive power. Their position in the Judicial Article reflects historical drafting, not a substantive classification.

If state's attorneys are state officials, why are most of them paid by the county?

It is a hybrid system. Under 55 ILCS 5/4-2001, the State pays 66 2/3% of the elected state's attorney's annual compensation as set in 1988, plus 100% of post-1988 raises, with the State's contribution flowing through the Department of Revenue out of the Personal Property Tax Replacement Fund or the General Revenue Fund to the county. The county then handles payroll. Assistant state's attorneys are appointed and supervised by the elected state's attorney under section 4-2003(a). Their pay sources can vary by jurisdiction.

What about Saxby v. Sonnemann? Why is a 1925 case still controlling?

Saxby directly held that a state senator violated separation of powers by also serving as deputy to the Attorney General. Both the Attorney General and the state's attorney are constitutionally established executive-branch offices that exercise discretionary legal power. The Illinois Supreme Court treats deputies and assistants as exercising the same power as their principals. So Saxby's reasoning carries directly. The 1970 constitutional revision did not change the separation-of-powers principle Saxby applied. As long as that holds, Saxby keeps controlling parallel structural cases.

Did Senate President Harmon ask the question because of a specific senator's situation?

The opinion does not say. The letter is framed as a hypothetical about whether NP-217 still controls. Harmon also asked whether the answer changes for three sub-scenarios (county-paid, supervisor-only, individualized cases), which suggests the question came from a specific configuration the office was contemplating. The AG declined to address those sub-scenarios because the constitutional answer covers all of them.

Could a sitting state senator stay in the senate but resign as ASA, or vice versa?

Yes, the constitutional bar is on simultaneous tenure. Resigning one before accepting the other resolves the conflict. Holding them at the same time does not. The opinion's logic also implies that becoming an ASA while a sitting senator would create a problem for the senate seat as well as the ASA appointment.

Could an assistant state's attorney serve in the Illinois House instead of the Senate?

The opinion was specific to the Senate, but the analysis would carry to the House because both houses of the General Assembly exercise legislative power. The constitutional incompatibility runs against the legislature as a whole, not against one chamber.

Citations

  • 25 ILCS 5/2
  • 55 ILCS 5/4-2001 (Counties Code, state's attorneys' compensation)
  • 55 ILCS 5/4-2003
  • Ill. Const. 1870, art. III; art. IV, §§3, 15; art. VI, §21 (as amended 1964)
  • Ill. Const. 1970, art. II, §1; art. IV, §§1, 2(e); art. VI, §19
  • Ill. Att'y Gen. Op. No. NP-217 (September 8, 1970)
  • Ill. Att'y Gen. Op. No. 14-002 (December 23, 2014)
  • Ill. Att'y Gen. Op. No. 99-015 (July 9, 1999)
  • 1980 Ill. Att'y Gen. Op. 116
  • 1977 Ill. Att'y Gen. Op. 144
  • 1976 Ill. Att'y Gen. Op. 49
  • 1979 Ill. Att'y Gen. Op. 21
  • Ill. Att'y Gen. Inf. Op. No. I-09-019 (October 29, 2009)
  • Ill. Att'y Gen. Inf. Op. No. I-08-008 (March 25, 2008)
  • Ill. Att'y Gen. Inf. Op. No. I-07-042 (August 2, 2007)
  • Public Acts 101-637, 101-007, 100-586, 100-021 (state's attorneys' appropriations cited)
  • 6 Record of Proceedings, Sixth Illinois Constitutional Convention 1341-44
  • 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2691

Source

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS

KWAME RAOUL
ATTORNEY GENERAL
February 9, 2021

FILE NO. 21-001

COMPATIBILITY OF OFFICES:
State Senator and Assistant State's Attorney

The Honorable Don Harmon
President of the Illinois Senate
State Senator, 39th District
State Capitol Building

Dear President Harmon:

I have your letter inquiring whether an individual may serve simultaneously as a member of the Illinois Senate and an Assistant State's Attorney. For the reasons stated below, it is my opinion that the offices of State Senator and Assistant State's Attorney are incompatible and, therefore, one person may not hold both offices simultaneously.

BACKGROUND

In opinion No. NP-217, issued September 8, 1970, Attorney General Scott was asked whether the office of State Senator was compatible with the office of Assistant State's Attorney. In reaching his conclusion that the offices were incompatible, Attorney General Scott reviewed, among other things, article III of the Illinois Constitution of 1870, which incorporated the separation of powers doctrine into Illinois government, and which provided:

The powers of the government of this State are divided into three distinct departments — the legislative, executive and judicial; and no person, or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted.

In construing article III, Attorney General Scott analyzed Saxby v. Sonnemann, 318 Ill. 600, 149 N.E. 526 (1925), in which the Illinois Supreme Court concluded that a member of the General Assembly (a State Senator) could not exercise the powers of a deputy of and assistant to the Attorney General of Illinois without violating the separation of powers doctrine set forth in article III of the Illinois Constitution of 1870. Ill. Att'y Gen. Op. No. NP-217 at 3. Attorney General Scott then noted that both the offices of Attorney General and State's Attorney are legal offices in the executive branch of government and that both of the offices involve the exercise of discretion. Further, he stated that both the Attorney General and a State's Attorney have the power to appoint necessary deputies or assistants to aid in carrying out their many duties. Attorney General Scott then wrote:

The duties of an Assistant State's Attorney are more than ministerial in nature. They are legal duties which involve the exercise of discretion. He acts for the State's Attorney and therefore, exercises the power of that office.

Because of the foregoing, I am of the opinion that the Office of State Senator is incompatible with that of Assistant State's Attorney. Incompatibility would arise because of the provisions of Article III and Section 3 of Article IV of the Constitution of Illinois 1870. Ill. Att'y Gen. Op. No. NP-217 at 3-4.

You have inquired whether the conclusion reached in opinion No. NP-217 remains valid in light of subsequent judicial opinions and opinions of this office. If opinion No. NP-217 remains valid under current Illinois law, you have also inquired whether the determination would be different if, as Assistant State's Attorney, the State Senator: (1) is paid solely out of county funds or Federal grants rather than State grants; (2) does not have his or her own caseload but only supervises Assistant State's Attorneys and their cases; or (3) is hired on individualized cases to deal with specialized needs.

ANALYSIS

It is well established that the common law doctrine of incompatibility of offices precludes simultaneous tenure in two public offices if the Constitution or a statute specifically prohibits the occupant of either office from holding the other, or if the duties of the two offices conflict so that the holder of one cannot, in every instance, fully and faithfully discharge all of the duties of the other office. People ex rel. Fitzsimmons v. Swailes, 101 Ill. 2d 458, 465, 463 N.E.2d 431, 434 (1984); People ex rel. Smith v. Brown, 356 Ill. App. 3d 1096, 1098, 828 N.E.2d 306, 308 (2005); People ex rel. Myers v. Haas, 145 Ill. App. 283, 286 (1908). The positions of State Senator and Assistant State's Attorney are public offices. See 25 ILCS 5/2 (West 2018); Ill. Att'y Gen. Inf. Op. No. I-09-019, issued October 29, 2009, at 2 n.1 (the position of Assistant State's Attorney is a public office); Ill. Att'y Gen. Inf. Op. No. I-08-008, issued March 25, 2008, at 4-5 (same). There is no statutory provision that expressly prohibits one person from serving simultaneously as both a State Senator and an Assistant State's Attorney. It must be determined, however, whether the Constitution precludes simultaneous tenure in the indicated offices.

Article II, section 1, of the Illinois Constitution of 1970, incorporates the separation of powers doctrine into current State law and provides:

The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.

Where the language of a constitutional provision is unambiguous, it will be given effect as written. Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 13, 672 N.E.2d 1178, 1184 (1996); Ill. Att'y Gen. Op. No. 14-002 at 4. However, if, after reviewing the language of a provision, doubt remains as to its meaning, it is appropriate to consult the official documents related to the adoption of the Constitution, including the comments of the Constitutional Convention's delegates, to ascertain the meaning they attached to the provision. Committee for Educational Rights, 174 Ill. 2d at 13, 672 N.E.2d at 1184; League of Women Voters of Peoria v. County of Peoria, 121 Ill. 2d 236, 243-44, 520 N.E.2d 626, 630 (1987).

As with article III of the Illinois Constitution of 1870, article II, section 1, of the 1970 Constitution, addresses the distribution of authority among the legislative, executive, and judicial branches of government. 1977 Ill. Att'y Gen. Op. 144, 147. While the purpose of this provision is to ensure that the whole power of two or more branches of government shall not reside in the same hands, it was not designed to achieve a complete divorce among the three branches of State government. See In re Derrico G., 2014 IL 114463, ¶¶75-76, 15 N.E.3d 457, 475 (2014); People v. Hammond, 2011 IL 110044, ¶¶51-52, 959 N.E.2d 29, 44-45 (2011).

Although the specific text of article II, section 1, of the Illinois Constitution of 1970 is not identical to that of article III of the Illinois Constitution of 1870, the Committee on General Government of the Sixth Constitutional Convention proposed the language of article II, section 1, to "modif[y] and modernize[ ]" the separation of powers article in the Illinois Constitution of 1870 and did "not intend in any way to change the purport of the article." Remarks of Delegate Davis, 2 Record of Proceedings, Sixth Illinois Constitutional Convention 1067. Furthermore, the information disseminated to the voters in anticipation of their vote to adopt the proposed Illinois Constitution of 1970 provided that article II, section 1, "is self-explanatory, and is derived from Article III of the 1870 Constitution." 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2691. Thus, the delegates of the Sixth Constitutional Convention did not intend to effectuate a substantive change to the separation of powers provision set forth in article III of the Illinois Constitution of 1870.

State's Attorneys are State officers and State officials. See Ingemunson v. Hedges, 133 Ill. 2d 364, 369, 549 N.E.2d 1269, 1271 (1990); Bianchi v. McQueen, 2016 IL App (2d) 150646, ¶34, 58 N.E.3d 680, 691 (2016), appeal denied, 65 N.E.3d 839 (2016); see also Ill. Att'y Gen. Inf. Op. No. I-07-042, issued August 2, 2007, at 5. As officers who perform the general duties of the State's Attorney's office, Assistant State's Attorneys are considered to be State officers in appropriate circumstances. See, e.g., Biggerstaff v. Moran, 284 Ill. App. 3d 196, 200, 671 N.E.2d 781, 784 (1996) (concluding that the county was not vicariously liable for the negligent acts of an Assistant State's Attorney under the respondeat superior doctrine); Burger v. County of Macon, 942 F.3d 372, 375 (7th Cir. 2019), quoting Office of the Cook County State's Attorney v. Illinois Local Labor Relations Board, 166 Ill. 2d 296, 303, 652 N.E.2d 301, 304 (1995) (finding that when exercising the State's Attorney's internal control authority over the operations of the office, Assistant State's Attorneys "are in essence surrogates for the State's Attorney").

The constitutional provision authorizing the office of State's Attorney is located in the Judicial Article of the Illinois Constitution of 1970. Ill. Const. 1970, art. VI, §19. In addition, the Illinois Supreme Court has consistently concluded that the office of State's Attorney is considered part of the executive branch of government, as a State's Attorney exercises executive powers. People v. Ringland, 2017 IL 119484, ¶18, 89 N.E.3d 735, 741 (2017); Nelson v. Kendall County, 2014 IL 116303, ¶¶27, 31, 10 N.E.3d 893, 900, 901 (2014). Because Assistant State's Attorneys are, in essence, surrogates for the State's Attorney and possess the power of the State's Attorney in the same manner and to the same effect as the State's Attorney (Office of the Cook County State's Attorney, 166 Ill. 2d at 303, 652 N.E.2d at 304; 1979 Ill. Att'y Gen. Op. 21, 22; Ill. Att'y Gen. Inf. Op. No. I-09-019 at 2), Assistant State's Attorneys also exercise executive powers.

The legislative power of the State is vested in the General Assembly. See Ill. Const. 1970, art. IV, §1. An Assistant State's Attorney who serves simultaneously as a member of the State Senate would thus be in a position to exercise the authority and powers of two separate branches of State government—the executive and legislative branches—in violation of article II, section 1, of the Illinois Constitution of 1970. Accordingly, under the reasoning of Saxby v. Sonnemann and Attorney General opinion No. NP-217, the offices of State Senator and Assistant State's Attorney are incompatible, and one person may not hold both offices simultaneously. Nothing in the subsequent case law or opinions of this office leads to a contrary conclusion.

Because the separation of powers doctrine would be violated if an individual were to serve simultaneously as an Assistant State's Attorney and a member of the Illinois Senate, it is not necessary to review the duties and powers of each office to determine whether the duties of the two offices might conflict so that the holder of one cannot, in every instance, fully and faithfully discharge all of the duties of the other office. Consequently, the source of the Assistant State's Attorney's salary or the exact role of the Assistant State's Attorney in a specific State's Attorney's office would not affect the conclusion reached in this opinion.

CONCLUSION

Based on the foregoing, it is my opinion that pursuant to article II, section 1, of the Illinois Constitution of 1970, the offices of State Senator and Assistant State's Attorney are incompatible. Therefore, one person may not hold both offices simultaneously.

Very truly yours,

KWAME RAOUL
ATTORNEY GENERAL