Gov. Rod Blagojevich repeatedly demonstrates that he'll do whatever it takes to expand health care to as many Illinoisans as possible. But because relationships between the governor and the legislators are "frosty," as House Minority Leader Tom Cross says, the governor is left with trying to force issues rather than negotiate them in the legislative process. As a result, taxpayers are footing some of the bill for court costs. 

On one hand, the Blagojevich Administration has been on the defensive as outside entities file lawsuits against the governor's executive actions. For instance, court cases resulted when the governor tried to ban violent video game sales to minors, import European flu vaccine without federal approval and allow residents and state employees to import prescription drugs from other countries (see Illinois Issues, May 2007, page 10). Numerous state agencies paid more than $670,000 to the private law firms of Chicago attorney Michael Kasper and Washington, D.C., law firm Zuckerman Spaeder LLP, according to the state comptroller's records. 

More recently, the administration has been on the offensive, taking others to court. Last year, the governor sued House Speaker Michael Madigan and House Clerk Mark Mahoney for reasons rooted in the extended overtime session. Two state agencies and two executive officers are paying salaries ranging from $80,000 to $135,000 a year for four internal lawyers to work on the cases. Taxpayers also pay for the time spent by Madigan's legal counsel, who earns $125,000 a year. 

So it's not cheap, and it gets more expensive when the administration hires private law firms. 

This year, the governor's director of the Illinois Department of Healthcare and Family Services sued Secretary of State Jesse White for not publishing administrative rules related to the governor's health care expansions. Until the secretary of state publishes those rules in the Illinois Register, the administration can't expand the programs. 

The governor's health care agenda could define his administration — that is, if a string of federal investigations into his administration's hiring practices and political campaign fundraising efforts don't tarnish his legacy beyond repair. 

Either way, one has to wonder about why his administration pays so many internal and external lawyers to defend his agenda. 

In the meantime, it's too early to estimate the cost of the administration's suing the secretary of state, but it signifies an underlying problem costing taxpayers in a lot of ways. The case only landed in court because the governor and the legislature couldn't negotiate. 

White's office says the lawsuit is nothing personal. 

"I don't think there's a hostile relationship there at all," says Dave Druker, White's spokesman, but he adds, "We've certainly had some differences with the governor over the years." 

The two Chicago Democrats exchanged words in 2003, when Blagojevich inherited a $5 billion budget deficit his first year in office. He proposed cutting nearly $50 million from the secretary of state's office, which would have resulted in closed drivers' facilities and layoffs. The two worked it out that fall and compared it to a family spat. 

This year, White's office refused to publish Blagojevich's administrative rules that would have expanded state-sponsored health insurance to more middle-income families. 

The governor originally had tried but failed to advance that plan through the legislative process, where it became tangled in a complicated web of political feuds. So Blagojevich tried using his executive powers and submitted the plan to the legislative panel that reviews such programs. 

The Joint Committee on Administrative Rules rejected the expansions, leading the governor to proclaim that the panel doesn't have binding authority and can't exercise power over the executive branch. 

The secretary of state, on the other hand, believes his office lacks authority to publish administrative rules until they receive JCAR approval. Acting on the advice of his attorney, White refused to publish them. 

Given the disagreement about the authority of JCAR, the Department of Healthcare and Family Services director, Barry Maram, filed a complaint in Sangamon County Circuit Court. 

"Both parties in this case recognize that the lawsuit is part of a process intended to clarify the laws surrounding health care expansions and JCAR's constitutional standing," wrote Ruth Igoe, department spokeswoman, in an e-mail. "We consider this an amicable process." 

While it's no surprise the governor sued White because his agency publishes the rules in question, Druker says the case highlights different interpretations of state law. "Our belief is that we could not accept the rules unless JCAR approved. Seems to be a fundamental difference." 

The Illinois attorney general's office is representing White. The legal team has until May 2 to respond in writing to the administration's lawsuit. 

While the governor's office and the secretary of state's office agree to let the courts decide, legislators are preparing back-up plans if the rule-reviewing committee ceases to exist. House Speaker Michael Madigan now attaches extra paragraphs to each piece of legislation that would require the governor and his agency directors to submit rules for implementing programs to the General Assembly for approval. Currently, the legislature can approve the rough outlines of the governor's new programs and let the administration fill in the details later through JCAR. 

In a letter to legislators last month, Madigan described the lawsuit against the secretary of state as an "explicit statement that [Blagojevich] does not want executive agencies to work in a cooperative manner with the legislature. This is a stark departure from the past practices of this and previous governors. It's important that legislators recognize the implications." 

That includes allowing the administration to enforce health care expansions or other programs without checks and balances. 

Rep. Gary Hannig, deputy majority leader from Litchfield, notes the governor's inconsistency. During his first term, Blagojevich signed legislation strengthening JCAR's authority. 

"He certainly didn't seem to have a philosophical problem with this agency at that time," Hannig says. "It only seems that when this agency didn't rubber stamp his proposals that he suddenly decided that maybe they weren't constitutional and that maybe we ought to take them to court." 

Lawmakers of both political parties repeatedly have said they don't oppose the governor's expansion of health care, but they do oppose the governor's method of advancing his agenda through executive powers rather than through the legislative process. 

The governor's office declined to return repeated phone calls. 

While it's too early to tally legal fees for the case against White, the cost most likely will come out of the Department of Healthcare and Family Services' budget. 

Igoe says the department can't project the court costs, but she cites recent studies showing that the lack of health insurance contributes to deaths of Illinoisans and constitutes a crisis. "Clearly, if it's a crisis for people in this state, the governor wants to make it a priority for his administration. And he has done so and continues to do so through the health care expansions." 

The administration started to expand a Medicaid program to 147,000 middle-income adults, but a court order last month halted the expansion as a result of a lawsuit filed by Richard Caro, a Riverside attorney. 

Caro filed a complaint in Cook County proclaiming the governor's expansion of the state's FamilyCare program was unconstitutional because it would cost $43 million in the first year without legislative approval. 

"I filed a lawsuit to try to stop the expenditure until they get the legislative authorization," Caro says. "It's that simple." 

His case was combined with another filed in Sangamon County by Republican businessman Ron Gidwitz and Greg Baise, president and chief executive officer of the Illinois Manufacturers' Association, on behalf of the Illinois Coalition for Jobs, Growth, and Prosperity. 

Judge James Epstein ruled that the administration lacks authority to move the FamilyCare program into a state Medicaid program because it fails to meet federal requirements. The administration is pro-hibited from expanding FamilyCare until a full trial decides or until the department changes or cancels the expansions. His ruling also said that Caro's complaint likely would succeed in a full trial. 

The governor's office issued a statement that said it would address the federal requirements and continue to expand the FamilyCare program. 

Caro says he believes in universal health care, but he opposes the governor's methods. 

"If I'm wrong, so be it," he says. "I just want it resolved and for the people who govern this state, the executive and the legislature, to resolve the issue." 

The courts, in fact, could bounce the authority question back to the Capitol for the governor and the legislators to reconcile. 

Hannig, deputy majority leader in the House, says the lawsuits seem like a frivolous way to solve problems and put the judicial branch in an awkward position, having to take sides between the executive and legislative branches. "The judges are saying, 'Why are you dragging us into this thing? Can't you guys just work it out?'" 

He says it's the legislature's responsibility to ensure that the chief executive doesn't misconstrue the intent of state law. 

Until the governor and the legislature settle the checks-and-balances questions, taxpayers will foot the bill.

It's too early to estimate the cost of the administration's suing the secretary of state, but it signifies an underlying problem costing taxpayers in a lot of ways.

Bethany Jaeger can be reached at capitolbureau@aol.com.

Illinois Issues, May 2008