CHICAGO - Illinois Gov.-elect Bruce Rauner holds sway over a replacement to serve out the upcoming term of the late Comptroller Judy Baar Topinka, but Illinois lawmakers should hand the decision over to voters to decide in the next statewide election, Attorney General Lisa Madigan said Monday.
Lawmakers sought counsel from Madigan's office on succession rules after Topinka's sudden death last week from a stroke. Topinka's current term was to end Jan. 12, when she was to be sworn in to her second four-year term following her win in the November election. Rauner also will be sworn in, replacing incumbent Gov. Pat Quinn, who lost to Rauner.
Rauner and Topinka are Republicans and Quinn is a Democrat.
Republicans and Democrats have jostled over the fate of the office, awaiting Madigan's opinion, which is likely to fuel further debate.
Madigan Monday released her analysis of the state constitution and official documents related to the adoption of the constitution and comments on intent from constitutional convention delegates.
Language in the constitution addresses both a "vacancy" and a "failure to qualify" and they are treated in state law as two separate events, the attorney general said.
"In each case, the sitting governor has the authority to make an appointment to fill the Office of Comptroller," Madigan concluded.
"In this situation, Governor Quinn has the authority to fill the current vacancy and Governor-elect Rauner, once he is sworn into office, will have the authority to make an appointment to fill the comptroller's office due to the failure of the Comptroller-elect to qualify," she continued.
Anyone appointed by Quinn could only serve until Jan. 12.
The law allows for Rauner's appointment to serve out the entire four year term.
Madigan recommended lawmakers approve legislation changing that rule and allowing for a special election, which is permitted under state law under special circumstances.
"I urge Governor Quinn, Governor-Elect Rauner, the legislative leaders and the members of the General Assembly to support and move forward with a new law allowing the people of Illinois to vote, at the next regularly scheduled statewide election in 2016, to determine who will serve as comptroller until the 2018 election," Madigan said.
Quinn's office said the governor was reviewing the opinion and recommendation.
Rauner issued a statement reiterating his support for the appointment of a Topinka deputy to the post but he remained silent on the special election recommendation.
"There is now clear bi-partisan agreement that the legal question is settled: there are two appointments," Rauner said. "With less than a month remaining in the current term, I continue to believe the best course of action for the people of Illinois is to maintain continuity in the office and respect the wishes of the Topinka family."
A Rauner spokesman added that the governor elect’s intention is to appoint someone to serve the full term as legal advisors have suggested that a special election could be problematic because of rules governing the election of constitutional officer that are built into the state constitution.
"This will undoubtedly be litigated," Democratic State Senate President John Cullerton said in a statement. "That reality, shouldn't stop us from recognizing the fact that voters should be allowed to elect a comptroller of their choosing in 2016. We need a special session to immediately consider legislation for a special election."
Topinka's office manages the state's bills and payroll and maintains state and local fiscal records.
The office publishes monthly and quarterly reports on the state's fiscal condition and its reports on the size of the bill backlog are closely followed by analysts and investors as a sign of the state's liquidity position. During her tenure, she modernized some office practices and overhauled the website, launched a daily bill ledger and a portal for local government finances.
Topinka broke with her party and during the campaign supported at least a temporary extension of the 2011 income tax hike that partially expires Jan. 1. She warned the state can't afford the expected loss of $1.9 billion of revenue during fiscal 2015 and $2.9 billion in fiscal 2016.