Ferguson v. Patton Supreme Court Opening Brief

Transcription

112488
No.
THE
SUPREME COURT OF ILLINOIS
IN
JOSEPH M. FERGUSON ~ in his official capacity as
Inspector General of the City of Chicago,
Plaintiff-Appellee,
v.
STEPHEN R. PATTON, in his official capacity as
Corporation Counsel of the City of Chicago,
Defendant-Appellant.
On Appeal from the Appellate Court of Illinois
First Judicial District, No. 10-1152
There Heard on Appeal from the Circuit Court of Cook County, Illinois
County Department, Chancery Division, No. 09 CH 43287
BRIEF AN APPENDIX OF DEFENDANT-APPELLAT
STEPHEN R. PATTON
Corporation Counsel
of the City of Chicago
30 North LaSalle Street, Suite 800
Chicago, Illinois 60602
(312) 744-3173
BENNA RUTH SOLOMON
Deputy Corporation Counsel
MYIAM ZRECZNY KASPER
Chief Assistant Corporation Counsel
J. MARK POWELL
Assistant Corporation Counsel
Of
Counsel
ORAL ARGUMENT REQUESTED
',-:
POINTS AN AUTHORITIES
Page(s)
ARGUMENT ....................................... ...........7
Wackrow v. Niemi,
231 ILL. 2d 418 (2008) ....................................... 9
I. THIS IS A NONJUSTICIALE INTRAMUNICIP AL
DISPUTE. ...............................................9
Lyons v. Ryan,
201 IlL. 2d 529 (2002) ....................................... 9
A. The Courts Lack Jurisdiction Over A Suit By One
City Department Against Another City Department. ... 9
Tanner v. Solomon,
58 ILL. App. 2d 134 (1965) ................................ 9, 10
In re Estate of Wellman,
174 IlL. 2d 335 (1996) ...................................... 10
Bellevile Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc.,
199 IlL. 2d 325 (2002) ...................................... 10
Schlicher v. Board of Police & Fire Commissioners,
363 IlL. App. 3d 869 (2006) ................................. 10
City of
Elmhurst v. Kegerreis,
392 IlL. 195 (1945) ........................................ 10
City of
Chicago v. Beythel Outcast Church,
375 IlL. App. 3d 317(2007) .............................. 10-11
Hume v. Town of
Blackberry,
131 IlL. App. 3d 32 (1985) .................................. 11
Johnston v. City of Chicago,
258 IlL. 494 (1913) ........................................ 11
Kinzie v. Trustees of the Town of Chicago,
3 ILL. 187, 1839 WL 2873 (1839) ............................. 11
1
Municipal Corporations § 2.07.10
(3d Ed. 1999) . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1 Eugene McQuillin, The Law of
Darby v. Pasadena Police Department,
939 F.2d 311 (5th Cir. 1991) ................................ 11
1 Eugene McQuilin, The Law of
Municipal Corporations § 2.02
(3d Ed. 1999) ............................................ 11
(3d Ed. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11
City of
Trenton v. State of
New Jersey,
262 U.S. 182 (1923) ....................................... 11
Maureen A. Flanagan, Municipal Charters,
The Electronic Encyclopedia of Chicago (Chicago Historical Society 2005),
http://encyclopedia.chicagohistory.org/pages/23L.html ........ 11-12
Maureen A. Flanagan, Charter Reform in Chicago (1987) ............. 12
(1898)
http://www. archive.org/stream/charterscitychiOOiligoog#page/
2 Edmund J. James, The Charters of
the City of
Chicago
n6/mode/2up ............................................. 12
65 ILCS 5/2-2-12 (2010) ......................................... 12
3 Eugene McQuillin, The Law of Municipal Corporations § 12.39
(3d Ed. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
IlL. Const. art. VII, § 6(ü ........................................ 12
3 Eugene McQuillin, The Law of Municipal Corporations § 12.40
(3d Ed. 1999) ............................................ 12
Braxton v. National Capital Housing Authority,
396 A.2d 215 (D.C. App. 1978) ........................... 12-13
Des Moines,
290 N.W. 680 (Iowa 1940) .................................. 13
Des Moines Park Board v. City of
Lewis v. City of Chicago,
496 F.3d 645 (7th Cir. 2007) ................................ 13
11
Chan v. Wodnicki,
123 F.3d 1005 (1997) ...................................... 13
Chicago,
Dr. Martin Luther King, Jr. Movement Inc. v. City of
435 F. Supp. 1289 (N.D. IlL. 1977) ........................... 13
Stevanovic v. City of Chicago,
385 IlL. App. 3d 630 (2008) ................................. 13
Paredes v. City of Odessa,
128 F. Supp. 2d 1009 (W.D. Tex. 2000) ....................... 13
Luysterborghs v. Pension & Retirement Board,
927 A.2d 385 (Conn. Super. Ct. 2007) ........................ 13
City Council v. Bowen,
649 So. 2d 611 (La. Ct. App. 1994) ........................... 13
17 Eugene McQuillin, The Law of Municipal Corporations § 49:2
(3d Ed. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Ill. Const. art. 7, § 6CD .......................................... 14
Municipal Code of Chicago, IlL. § 2-56-020 (2011) . . . . . . . . . . . . . . . . . . . . . 14
65 ILCS 5/3.1-15-10 (2010) ...................................... 14
Municipal Code of Chicago, ILL. § 2-4-030 (2011) . . . . . . . . . . . . . . . . . . . 14, 15
Municipal Code of Chicago, IlL. § 2-4-020 (2011) .................. 14, 15
Pechous v. Slawko,
64 IlL. 2d 576 (1976) ....................................... 15
Peters v. City of Springfeld,
57 IlL. 2d 142 (1974) ....................................... 15
David C. Baum, A Tentative Survey of Illinois Home Rule (Part 1): Powers
And Limitations,
1972 U. IlL. L.F. 137 (1972) ................................. 15
III
70 ILCS 3605/3 (2010) .......................................... 16
70 ILCS 3605/5 (2010) .......................................... 16
70 ILCS 1505/3 (2010) .......................................... 16
105 ILCS 5/34-2 (2010) ......................................... 16
110 ILCS 805/3-11 (2010) ....................................... 16
B. The Appellate Court Supplied No Valid Legal Basis
For Its Jurisdictional Ruling. ....................... 16
Burnette v. Stroger,
389 IlL. App. 3d 321 (2009) ................................. 17
Read v. Sheahan,
359 IlL. App. 3d 89 (2005) .................................. 17
Sampson v. Graves,
304 Ill. App. 3d 961 (1999) .............................. 17,20
1 Eugene McQuilin, The Law of Municipal Corporations § 2.46
(3d Ed. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Municipal Corporations § 2.46.10
(3d Ed. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Edward J. Berwind, Inc. v. Chicago Park District,
393 IlL. 317 (1946) ........................................ 18
Chicago,
West Chicago Park Commissioners v. City of
152 IlL. 392 (1894) ........................................ 18
Lilly v. County of
Cook,
60 ILL. App. 3d 573 (1978) .................................. 18
55 ILCS 5/3-9001 et seq. (2010) ................................... 19
55 ILCS 5/3-4000 et seq. (2010) ................................... 19
55 ILCS 5/3-15001 et seq. (2010) .................................. 19
55 ILCS 5/3- 15004 (2006) ....................................... 19
iv
IlL. Const. art. VII, § 4(c) ........................................ 19
55 ILCS 5/3-6001 (2010) ........................................ 19
Cook,
Moy v. County of
244 IlL. App. 3d 1034 (1993) ............................. 19,20
IlL. Const. art. 7, § 4(c) .......................................... 20
55 ILCS 5/3-4007(b) (2010) ...................................... 20
IlL. Const., art. 7, § 4(b) ......................................... 20
65 ILCS 5/3.1-15-5 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
65 ILCS 20/21-5 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
65 ILCS 20/21-11 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
65 ILCS 20/21-12 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Municipal Code of Chicago, IlL. § 2-4-020 (2011) ..................... 20
II. THE MAJORITY ERRONEOUSLY HELD THAT THE
INSPECTOR GENERA HAS CAPACITY TO SUE. . . . . . . . .. 21
A. The City Did Not Grant The Inspector General
Power To Sue. ...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 21
17 McQuilin, The Law of Municipal Corporations § 49:2
(3d Ed. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3 McQuilin, The Law of
(3d Ed. 1999) ............................................ 21
Braxton v. National Capital Housing Authority,
396 A.2d 215 (D.C. App. 1978) .............................. 21
Des Moines Park Board v. City of
Des Moines,
290 N.W. 680 (Iowa 1940) .................................. 21
v
Lewis v. City of Chicago,
496 F.3d 645 (7th Cir. 2007) ................................ 21
Chan v. Wodnicki,
123 F.3d 1005 (1997) ...................................... 21
Chicago,
Dr. Martin Luther King, Jr. Movement Inc. v. City of
435 F. Supp. 1289 (N.D. IlL. 1977) ........................... 21
Stevanovic v. City of Chicago,
385 IlL. App. 3d 630 (1st Dist. 2008) ....................... 21-22
Paredes v. City of Odessa,
128 F. Supp. 2d 1009 (W.D. Tex. 2000) ....................... 22
Luysterborghs v. Pension & Retirement Board,
927 A.2d 385 (Conn. Super. Ct. 2007) ........................ 22
City Council v. Bowen,
649 So. 2d 611 (La. Ct. App. 1994) ........................... 22
Darby v. Pasadena Police Department,
939 F.2d 311 (5th Cir. 1991) ................................ 22
Municipal Code of Chicago, IlL. § 2-56-030 (2011) .................... 22
Municipal Code of Chicago, IlL. § 2-60-020 (2011) . . . . . . . . . . . . . . . . . . 22, 24
Municipal Code of Chicago, IlL. § 2-56-040 (2011) .................... 23
U.S. Bank National Association v. Clark,
216 ILL. 2d 334 (2005) ...................................... 23
In re Application of County Collector,
132 ILL. 2d 64 (1989) ....................................... 23
Municipal Code of Chicago, IlL. § 2-4-020 (2011) . . . . . . . . . . . . . . . . . . . . . . 24
Cinkus v. Vilage of Stickney Municipal Officers Electoral Board,
228 IlL. 2d 200 (2008) ...................................... 25
vi
Department of
Public Aid v. Kessler,
72 ILL. App. 3d 802 (1979) .................................. 26
Burnette v. Stroger,
389 ILL. App. 3d 321 (2009) ........................ 26, 27, 28, 29
Burnette v. Terrell,
232 IlL. 2d 522 (2009) ...................................... 27
Maloney v. Bower,
113 IlL. 2d 473 (1986) ...................................... 27
55 ILCS 5/3-4000 et seq. (2010) ................................... 28
55 ILCS 5/3-4007(b) (2010) ...................................... 28
Johnson v. Halloran,
194 IlL. 2d 493 (2000) ...................................... 28
Trustees of
Retirement System,
23 N.W.2d 186 (Mich. 1946) ................................ 29
Hubbard v. Board of
67 C.J.S. Officers § 227 (2002 & Supp. 2010) ........................ 30
67 C.J.S. Officers § 322 (2002 & Supp. 2010) ........................ 30
Tanner v. Solomon,
58 IlL. App. 2d 134 (1965) .................................. 30
B. The Inspector General Can Properly Perform His
Duties Without Independent Enforcement
Authority. ........................................ 31
Municipal Code of Chicago, ILL. § 2-56-030 (2011) . . . . . . . . . . . . . . . . . . . . . 31
Municipal Code of
Chicago, IlL. § 2-56-140 (2011) . . . . . . . . . . . . . . . . . . . . . 31
Vll
Municipal Code of
Chicago, IlL. § 2-56-110 (2011) . . . . . . . . . . . . . . . . . . . . . 31
5 U.S.C. App. § 2(A) (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 32
5 U.s.C. App. § 11(2) (2008) .......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
National Aeronautics & Space Administration v. Federal Labor
Relations Authority,
527 U.S. 229 (1999) ....................................... 32
5 U.S.C. App. § 6(a) (2008) ........... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5 U.s.C. App. § 6(b) (2008) ......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5 U.S.C. App. § 3(a) (2008) ......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5 ILCS 430/20-10 et seq. (2010) ................................... 33
Cook County, ILL., Code of Ordinances § 2-281 et seq. (2011) ........... 33
Houston, Tex., Executive Order No. 1-39 Rev. (Mar. 1,2011),
available at http://www.houstontx.gov/legal/1-39.pdf ........... 33
Jacksonvile, Fl., Executive Order 07-09 (Aug. 28, 2007),
available at http://generalcounsel.coj.com/
ExecutiveOrders/2007~09.pdf ............................... 33
City of
Los Angeles, Ca., City Charter § 573 (2011),
available at www.amlegal.com/library/ca/osangeles.shtml ....... 33
New York, N.Y., Executive Order No. 16 (July 26, 1978),
available at http://www.nyc.gov/html/doi/tml/
about/report.shtml#sl .................................... 33
San Jose, Ca., City Charter § 805,
available at http://www.sanjoseca.gov/clerk/charter.asp#Art8 .. 33-34
Philadelphia, Pa., Executive Order No. 4-94 (Nov. 28, 1994),
available at http://www.phila.gov/oig/pdfs/
Executive_Order_4-94.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 34
Philadelphia, Pa., City Charter § 4-400 (2011),
available at http://www.amlegal.com/library/
pa/philadelphia.shtml ..................................... 34
Vlll
Detroit, Mich. City Charter, art. 7.5, ch. 3 (rev. 2011),
available at http://2009dcrc.org/Documents/
CC3_Broadside%5B1%5D.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
New Orleans City Code Ordinance § 2-1120 (2011),
available at http://www.nolaoig.org/uploads/FilelPolicies/
OIG%20ordinance%202-1120%20Rev%20Apr%202011.pdf ....... 34
D.C. Code § 1-301.115a (2011),
available at http://government.westlaw.com/inkedslice/
default.asp?RS=GVT1.0& VR=2.0&SP=dcc- 1000&Action= Welcome 34
Fuchs v. Bidwill, 65 ILL. 2d 503 (1976) .............................. 35
Municipal Code of Chicago, IlL. § 2-56-040 . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
C. The Majority Erroneously Condoned The Inspector
General's Retention Of Private CounseL. ............. 35
Education v. Cook County Board,
Suburban Cook County Regional Office of
282 IlL. App. 3d 560 (1996) ........................... 36,37,39
55 ILCS 5/3-9008 (2010) ........................................ 37
15 ILCS 205/6 (2010) ........................................... 37
5 ILCS 430/20-45(b) (2010) ...................................... 37
Environmental Protection Agency v. Pollution Control Board,
69 IlL. 2d 394 (1977) .................................... 37, 38
Tully v. Edgar,
286 IlL. App. 3d 838 (1997) .............................. 38,39
In re Petition of McNulty,
60 IlL. App. 3d 701 (1978) .................................. 38
In re Mortimer,
44 ILL. App. 3d 249 (1976) .................................. 38
People ex reI. Sklodowski,
162 IlL. 2d 117(1994) ...................................... 38
15 ILCS 205/4 (2010) ........................................... 39
ix
105 ILCS 5/3A-15 (2010) ........................................ 39
Municipal Code of Chicago, IlL. § 2-60-020(b) (2011) .................. 39
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
x
NATURE OF THE CASE
GO") requested that
The City of Chicago Inspector General's Offce ("I
the City of Chicago Department of Law produce certain documents in
connection with an investigation. The Law Department produced responsive
documents, some in their entirety and others with redactions of information
that was subject to the attorney-client privilege, work-product protection, or
both. The IGO then served a subpoena for unredacted copies of the
privileged documents. After the Law Department timely objected based on
privilege, the Inspector General retained counsel and sued the Corporation
Counsel to compel production of unredacted copies of the documents. The
Inspector General did not dispute that the information was protected by the
attomey-client privilege, but argued that a City department cannot assert
privilege in an IGO investigation.
The circuit court dismissed the complaint on the grounds that the
privilege was available to the City in an IGO investigation and that the
Inspector General lacks the capacity to sue. The Inspector General appealed.
The appellate court, over a dissent, reversed and remanded. The court held
that the dispute was justiciable and that the Inspector General has capacity
to sue, and ordered the circuit court to review the documents in camera and
make factual findings whether they are privileged. This court allowed the
Corporation Counsel's petition for leave to appeaL. All questions are raised
on the pleadings.
1
ISSUES PRESENTED
1. Whether the courts lack subject matter jurisdiction over a
dispute between the heads of two administrative divisions of the same
municipal corporation.
2. Whether the Inspector General lacks the capacity to sue,
because he is an arm of
municipal government rather than a distinct legal
entity; the relevant ordinance does not give him litigating authority; and a
court lacks the power to appoint counsel to represent him.
JURISDICTION
The circuit court entered judgment dismissing the complaint on April
21,2010. C. 128; A64.i The Inspector General filed a notice of appeal on
April 27,2010. C. 129; A22. The appellate court had jurisdiction pursuant to
IlL. Sup. Ct. R. 303. On April 29, 2011, the appellate court reversed the
judgment of the circuit court and remanded. A2-A21. The Corporation
Counsel timely filed a petition for leave to appeaL. This court allowed the
Corporation Counsel's petition on September 28,2011, AI, and has
jurisdiction pursuant to IlL. Sup. Ct. R. 315.
i The record on appeal consists of one volume of common law record,
cited as "C._," and a report of
proceedings, cited as "Tr. _."
2
ORDINANCES INVOLVED
the Chicago Municipal Code are set forth in
The following sections of
the appendix to this brief:
Mayor's appointment powers and duties:
Chicago, IlL. § 2-4-010 (2011)
Municipal Code of
Mayor's supervisory authority:
Municipal Code of Chicago, IlL. § 2-4-020 (2011)
Mayor's ordinance enforcement authority:
Office of Inspector General:
Municipal Code of Chicago, ILL. §§ 2-56-010 to 2-56-170 (2011)
Corporation Counsel - Appointment - Powers and duties:
STATEMENT OF FACTS
On November 4,2009, First Deputy Inspector General Mary Hodge,
through counsel the IGO had retained, filed this action in her official capacity
against the City's former Corporation Counsel in her official capacity. C.312. In December 2009, after the City Council confirmed Joseph Ferguson as
Inspector General, he was substituted as plaintiff. C.46.2 The complaint
alleged as follows. In January 2007, the IGO began investigating the
involvement of former and current City employees in the City's award of a
sole-source contract to a former City employee, and ultimately conducted
2 The current Corporation Counsel was substituted in this court by
order of October 18, 2011.
3
multiple interviews and reviewed documents from five City departments or
offices. C. 6 'H'H 12, 14. As part of
the investigation, on August 15, 2008, the
IGO requested in writing that the Law Department turn over all documents
relating to the contract award. C. 6 'H 15. The Law Department produced
responsive documents, but redacted some based on claims of attorney-client
privilege and/or work-product protection. C. 6 'H 15; C. 22-23. The IGO
responded that it believed a City department may not assert privilege in an
IGO investigation. C. 7 'H 17. On October 8, 2009, the IGO served a
subpoena on the Corporation Counsel seeking unredacted copies of the
documents. C.21. The Corporation Counsel objected to the subpoena and,
following unsuccessful negotiations, refused to produce the documents
without redactions. C. 6 'H'H 20-22. According to the complaint, this
prevented the IGO from completing its investigation. C. 6 'H 24. The
complaint sought a declaration that the Corporation Counsel may not assert
privilege in response to a request for documents by the IGO as part of an
"official IGO investigation"; a writ of mandamus compelling the Corporation
Counsel to disclose the withheld information; and an order enforcing the
subpoena. C. 9-12.
The Corporation Counsel moved to dismiss the complaint pursuant to
735 ILCS 5/2-619 and 5/2-615 (2010). C. 46-47, 52-70. The Corporation
Counsel argued that dismissal was warranted because chapter 2-56 of the
Chicago Municipal Code, which creates the IGO and defines its powers ("IGO
4
ordinance"), does not abrogate the attorney-client privilege and, in any event,
the Corporation Counsel is barred by the rules of professional conduct from
disclosing confidential client communications, even to the IGO, without the
clients' informed consent; that the Inspector General lacks the capacity to
sue; and that the court lacks jurisdiction to entertain a dispute between two
officers of the same govemmental entity in their official capacities. C. 56-68.
In response, the Inspector General did not doubt that the attorneyclient privilege was available to the City under other circumstances, but
argued that the privilege was unavailable in the context of an IGO
investigation. C.95-102. The Inspector General also argued that he has
authority to sue to enforce a subpoena. C. 102-04.
The Corporation Counsel replied that Illinois law applies the privilege
to a municipal corporation to the same extent as to a private entity, that the
IGO ordinance expressly permits objections to subpoenas, and that the
parties' interests here are adversarial rather than common. C. 112-18. The
Corporation Counsel also argued that the Inspector General has no commonlaw authority to sue. C. 118-20.
Mter oral argument, Tr. 5-41; A26-A62, the court granted the motion
to dismiss, concluding that the Corporation Counsel had properly invoked
privilege and that the Inspector General lacks the capacity to sue, Tr. 38-41;
A59-A62; C. 128; A64.
The Inspector General appealed, C. 129; A22, and the appellate court,
5
by a 2 to 1 vote, reversed and remanded, A2-A2L. Citing cases that did not
address justiciability or involve disputes between two heads of municipal
departments, the court held it had jurisdiction because it had "considered
analogous situations in the past," and was "wiling to do so again." A8.
Next, the majority held the Inspector General had capacity to sue the
Corporation Counsel and could retain his own attorney to do so. A9-A16. In
reciting the applicable ordinances, the majority recognized that the
Corporation Counsel is charged with conducting "all the law business" of the
the IGO
City. A4. The court nevertheless concluded that the prohibition of
ordinance that the Inspector General "shall take no action to enforce (a)
subpoena" or "to initiate prosecution" for seven days after an objection is
made, indicated that "at least in the limited situation where the Corporation
Counsel is served with a subpoena by the Inspector General and objects to its
enforcement. . . the Inspector General may seek to enforce the subpoena in
the circuit court by hiring its own counseL" A11-A13. The majority stated
that requiring the Inspector General to take to the Mayor a dispute with the
Corporation Counsel would "tie (his) hands." A15. The majority also ruled
that the Inspector General could retain private counsel without involving the
Corporation CounseL. A16. Finally, the majority declined the Inspector
General's request for review of the "finding" that the attorney-client privilege
was available absent information "concerning the documents at issue," such
as their authors and recipients. A18. The court remanded for the "limited
6
in camera review of and factfinding about the documents. A18.
purpose" of
The dissent observed that the Inspector General's subpoena power is
"administrative, and the scope is circumscribed by the plain language of the
the
ordinance: a dispute over enforcement ultimately lands on the desk of
mayor, who must decide how to resolve it." A20. The dissent further
explained that "(tlo grant to the Inspector General the power to bypass the
city's attorney and the mayor himself and seek a declaratory judgment on the
nature and extent of
his power is to grant to a city officer appointed by the
mayor powers the city council did not (and probably could not) delegate."
A20. The Municipal Code "provides that where the legislation does not
explicitly provide for enforcement, the mayor is the enforcement officer."
A20. The dissent also observed that "(tlhe case cited by the majority in
its conclusion" was "not persuasive." A20. There was "(nJo
support of
pronouncement" in the case law that Inspectors General are independent
agencies, and Inspectors General "remain, at the city, county and state level,
offices within units of government." A20. They "do not have a legal existence
independent of
the unit of
which they are a part." A21.
government of
ARGUMENT
In this lawsuit, the Inspector General retained private counsel and
sued the Corporation Counsel, attempting to cast aside the vital and well-
established attorney-client privilege. The case lacks a valid legal basis and
the circuit court properly dismissed it. There is no jurisdiction over the
7
dispute, and the Inspector General lacks capacity to sue. The appellate
court's contrary decision is unsupportable.
As an official-capacity suit by one appointed head of a municipal office
against another, both of
whom lack legal existence independent from the
City, this is an intra-municipal dispute over which the courts lack
jurisdiction. Instead, such disputes must be resolved internally by the
Mayor. The appellate court erroneously found the action justiciable, relying,
without explanation, on cases that did not address justiciabilty and involved
the county or elected officials. But this dispute is not comparable; the
structure of county government is materially different from that of a
municipal corporation, and this case involves appointed officials whom the
Mayor supervises.
The Inspector General also lacks authority to bring suit. Nothing in
the IGO ordinance grants the Inspector General independent legal existence
or the power to bring lawsuits for the City. Rather, the Municipal Code vests
all authority over the City's legal affairs in the Corporation Counsel alone.
In finding capacity to sue, the appellate court ignored the grant of exclusive
litigating authority to the Corporation Counsel and read authority into the
IGO ordinance that the City Council did not include. The Inspector General
must adhere to the limits that the City Council imposed, and has ample tools
to perform his functions effectively without the power to sue. Likewise,
because the Corporation Counsel alone has litigating authority under the
8
Code, there was no basis for the appellate court's related determination that
the Inspector General could retain an attorney without the involvement of
the Corporation CounseL.
This court reviews a dismissal under section 2-619 de novo. See,~,
Wackrow v. Niemi, 231 IlL. 2d 418,422 (2008). Under this standard, the
judgment of
the appellate court should be reversed and the Inspector
General's complaint should be dismissed. The appellate court's decision
improperly makes courts the arbiters of internal governmental disputes,
upends settled statutory construction principles, and runs afoul of
fundamental rules and constitutional limitations regarding the organization
of a municipal corporation.
I. THIS is A NONJUSTICIALE INTRAMUNICIP AL DISPUTE.
Whether claims are justiciable is a question of law that is reviewed de
novo. See Lyons v. Ryan, 201 Ill. 2d 529,534 (2002). By holding that the
courts have jurisdiction over this suit between two parts of City government,
the appellate court's decision contravenes the rules that a party cannot be
both plaintiff and defendant in the same case and that intramunicipal
disputes are nonjusticiable.
A. The Courts Lack Jurisdiction Over A Suit By One
City Department Against Another City Department.
In Tanner v. Solomon, 58 ILL. App. 2d 134 (1965), one member of a
municipal board sued the other board members for declaratory relief, alleging
they had permitted applicants who did not meet applicable criteria to become
9
police officers or to become eligible for such positions. See id. at 135-36. The
court held that the plaintiff, who sued in his capacity as a member of the
board rather than as a taxpayer, did not have an interest sufficient to confer
standing. See id. at 138. Rather, he raised an "intra-agency disputer )," in
which ''judicial interference" was inappropriate. Id. And, since standing is a
"component of justiciability," In re Estate of Wellman, 174 ILL. 2d 335, 344
(1996), which must exist for the court to have subject matter jurisdiction, see,
~, Bellevile Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 IlL. 2d 325,
334 (2002), it follows that a court lacks jurisdiction to entertain
intramunicipal disputes.
This case, too, pits members of
the same legal entity against each
other. The Inspector General brought suit in his official, not individual,
capacity; and he has sued the Corporation Counsel in that officer's official,
not individual, capacity as welL. To begin with an issue on which even the
Inspector General has offered no disagreement, a complaint filed against a
municipal officer in his official capacity is an "action against the
governmental entity of
which the (official) is a part." Schlicher v. Board of
Police & Fire Commissioners, 363 IlL. App. 3d 869,883 (2006); see also,~,
City of
Elmhurst v. Kegerreis, 392 IlL. 195,204 (1945). Thus, it is clear that
this suit against the Corporation Counsel in his official capacity is a suit
against the City. It is equally clear that the City, like any party, "'may not be
both plaintiff and defendant in an action.'" City of Chicago v. Beythel
10
Outcast Church, 375 IlL. App. 3d 317,320 (2007) (quoting Hume v. Town of
Blackberry, 131 IlL. App. 3d 32, 35 (1985)). Accordingly, for the Inspector
General or his office to maintain a suit against the City, he must somehow
have a legal existence separate from the City as a whole. As we now explain,
there can be no question that the IGO, like any other division of City
government, lacks that separate legal existence. This lawsuit, therefore, is
effectively an action by and against the City.
A municipality is organized as a corporation, see,~, Johnston v. City
of
the Town of
Chicago, 258 ILL. 494,499 (1913); Kinzie v. Trustees of
Chicago, 3 IlL. 187, 1839 WL 2873, at *1 (1839); see generally 1 Eugene
McQuilin, The Law of
is, a "single legal entity independent of
Municipal Corporations § 2.07.10 (3d Ed. 1999), that
its officers," Darby v. Pasadena Police
Department, 939 F.2d 311, 313 (5th Cir. 1991).
As such, municipalities derive their existence from the State. 1 McQuilin,
Trenton v. State of
supra, §§ 2.02, 2.03; see also, ~, City of
New Jersey, 262
U.S. 182, 189 (1923) (municipal corporation is a "political subdivision of
the
State" that "exists by virtue of the exercise of the power of the state through
its legislative department") (internal quotations omitted). As a special
charter municipality, Chicago was established by and retains the governing
structure Illinois imposed by charter in the nineteenth century, even though
the Illinois Constitution of 1970 added home-rule powers. See Maureen A.
Flanagan, Municipal Charters, The Electronic Encyclopedia of Chicago
11
(Chicago Historical Society 2005), http://encyclopedia.chicagohistory.org/
pages/231.html; see also Maureen A. Flanagan, Charter Reform in Chicago
157 (1987) (Chicago "stil has a nineteenth-century type of municipal
government"). And the City's charter makes clear the City is a single legal
entity: "The inhabitants of said city shall be a corporation by the name of the
City of Chicago; and by that name sue and be sued, complain and defend in
February 14, 1851),
any court. . .." Second Charter (the Consolidating Act of
the City of
reprinted in 2 Edmund J. James, The Charters of
Chicago
132
(1898) (available at http://www.archive.org/stream/
charterscitychiOOiligoog#page /n6/mode/2up); cf. 65 ILCS 5/2-2-12 (2010)
(city incorporated under Illinois Municipal Code is body "politic and
corporate" that may sue and be sued in corporate name).
To be sure, a municipality may create departments or offices to
conduct certain activities on behalf
of
the municipality, see 3 McQuillin,
supra, § 12.39, and home-rule municipalities are empowered to "provide for
(their) officers, their manner of selection and terms of office," either through a
referendum or as "otherwise authorized by law," IlL. Const. art. VII, § 6(D.
But simply creating an office or department is not sufficient to make it a
legal entity separate from the municipal corporation itself; rather, the
department or office must become a corporation in its own right. See 3
McQuilin, supra, § 12.40 (municipal department that is not a corporate body
cannot be sued or sue); see also,~, Braxton v. National Capital Housing
12
Authority, 396 A.2d 215, 216-17 (D.C. App. 1978) (per curiam) ("A
noncorporate department or other body within a municipal corporation is not
sui
Des Moines, 290 N.W. 680, 681
juris."); Des Moines Park Board v. City of
(Iowa 1940) (city park board lacked "independent or corporate existence").
Consistent with these principles, the courts have repeatedly held that
City departments have no legal existence independent from the City itself.
See, ~, Lewis v. City of Chicago, 496 F.3d 645, 656 (7th Cir. 2007) (City
was "real party in interest" in suit naming Chicago Police Department as
defendant) (citing Chan v. Wodnicki, 123 F.3d 1005, 1007 (1997)). See also,
Chicago, 435 F.
~, Dr. Martin Luther King, Jr. Movement Inc. v. City of
Supp. 1289, 1294 (N.D. IlL. 1977) (Department of Streets and Sanitation does
not "enjoy independent legal existence"); Stevanovic v. City of Chicago, 385
IlL. App. 3d 630, 631 (2008) (noting dismissal of Chicago Fire Department
"because it is not a legal entity separate from the City"). Cases discussing
other municipalities are to the same effect. See also,~, Paredes v. City of
Odessa, 128 F. Supp. 2d 1009, 1013 (W.D. Tex. 2000) (police department was
"not a separate legal entity apart" from municipality); Luysterborghs v.
Pension & Retirement Board, 927 A.2d 385,387-88 (Conn. Super. Ct. 2007)
(since state law did not treat municipal departments as distinct legal
entities, municipal pension board was not a juridical entity); City Council v.
Bowen, 649 So. 2d 611,616 (La. Ct. App. 1994) (city council was part of
larger body politic).
13
Thus, unless the municipality provides otherwise, see 17 McQuilin,
supra, § 49:2, officers who head municipal departments and offices are
members of the same legal entity - the municipal corporation - and an
official-capacity dispute between them is an intracorporate matter not subject
to judicial resolution. The City has taken no such steps to so dramatically
alter its corporate structure.
Indeed, this sort of change to the City's corporate structure could be
done, if at all, only by referendum. The Illinois Constitution requires
"approval by referendum" for a home-rule unit like the City to "adopt, alter,
or repeal a form of government provided by law." IlL. Const. art. 7, § 6(D.
The Inspector General exercises an executive function in City government.
But central to the City's form of government is that it has a unitary
executive. In other words, the Mayor alone exercises final executive
authority. The Mayor is the "chief executive (municipal) officer," 65 ILCS
5/3.1-15-10 (2010); Municipal Code of Chicago, IlL. § 2-4-030; see also Second
City Charter (the Consolidating Act of February 14, 1851), reprinted in 2
James, supra, at 140, and, as such, "supervise(s) the conduct of all" City
officers, Municipal Code of Chicago, Ill. § 2-4-020. This includes the
Inspector General, who is appointed by the Mayor, see Municipal Code of
Chicago, IlL. § 2-56-020. Indeed, the Inspector General is specifically
required to report to the Mayor on the progress of his investigations and
provide an explanation if any investigation remains open for more than a
14
year. See Municipal Code of Chicago, ILL. § 2-56-080. Moreover, the
Municipal Code requires the Inspector General to "report to the mayor
investigations undertaken by (the IGO)," Municipal
concerning results of
Code of Chicago, IlL. § 2-56-030(d), and file his reports, which include
recommendations for discipline, with the Mayor, see id. at § 2-56-060. In
turn, the Municipal Code, as part of
the Mayor's supervisory authority,
requires the Mayor to "examine the grounds of all reasonable complaints
made against any (City officer) and cause their violation of duty and other
offenses, if any, to be promptly punished." Id. at § 2-4-020.
It follows that any attempt by the City Council to create an appointed
would alter the City's
officer who is legally independent from the City itself
form of government. It would strip the Mayor of some of his executive power
and reallocate it to another official, granting that official final authority, at
least in his field of
responsibility. A change in the relationship of
legislative
and executive branches of municipal government is subject to the referendum
requirement under the Illinois Constitution. See,~, Pechous v. Slawko, 64
IlL. 2d 576, 582 (1976); Peters v. City of Springfeld, 57 IlL. 2d 142, 149 (1974);
David C. Baum, A Tentative Survey of Illinois Home Rule (Part 1): Powers
And Limitations, 1972 U. IlL. L.F. 137, 148-50 (1972). Legal independence for
the Inspector General would fall within this principle, because it would mean
that the legislative branch took some final decisionmaking authority from the
Mayor and gave it to the Inspector GeneraL. Here, the City did not take that
15
step to make the Inspector General legally distinct from the municipal
corporation. Nor did the State attempt to do so; the Illinois Municipal Code
does not even address the subject of
municipal inspectors general.3
Accordingly, the IGO has no different legal status than any other
administrative division of City government. A suit by the Inspector General
in his official capacity against the Corporation Counsel in his official capacity
is therefore nonjusticiable.
B. The Appellate Court Supplied No Valid Legal Basis
For Its Jurisdictional Ruling.
In addressing justiciability, the appellate court did not attempt to
distinguish Beythel Outcast Church, and purported to distinguish Tanner on
the ground that here, "we do not have one individual suing another
individual from the same body but instead have the head of one municipal
office suing the head of a different municipal office." A8. If this is a
distinction at all, it is immateriaL. As we explain above, municipal officials
sued or suing in their official capacity as the head of a municipal office are
3 The General Assembly plainly knows how to create legally distinct
local governmental entities when it wants to do so. It has created a number
of special districts operating within the City, including the Chicago Transit
Authority, see 70 ILCS 3605/3, 3605/5 (2010) (creating a "body politic and
municipal corporation under the name Chicago Transit Authority"); the
Chicago Park District, see 70 ILCS 1505/3 (2010) ("the Chicago Park District
shall constitute a body politic and corporate"); the Chicago Board of
Education is "a body
Education, see 105 ILCS 5/34-2 (2010) (Chicago Board of
politic and corporate"); and the City Colleges of Chicago, see 110 ILCS 805/311 (2010) (board of each community college district is a "body politic and
corporate").
16
not legally distinct from the City itself. Thus, a suit between them is a suit
by the City against itself, and is not justiciable.
Beyond that, the court's singular stated basis for allowing the suit to
proceed was that it had "considered analogous situations in the past and
(was) wiling to do so again." A8. But the prior cases do not support the
holding on
them even discusses or
justiciability. To begin with, none of
mentions justiciability, so none is authoritative on that issue. The appellate
court did not explain why those cases should nevertheless be followed here.
In fact, any analogy to the prior cases is at best superficiaL. None was
an action between two appointed heads of municipal offices or departments.
Two were disputes within county rather than municipal government, see
Burnette v. Stroger, 389 IlL. App. 3d 321, 322 (2009) (Cook County public
defender sued Cook County board president); Read v. Sheahan, 359 IlL. App.
3d 89, 90 (2005) (members of Cook County Board of Corrections sued Cook
County sherifD, and the third was an action by elected members of a
municipality's legislative branch against the elected head of its executive
branch, see Sampson v. Graves, 304 IlL. App. 3d 961,962-63 (1999) (City of
Harvey aldermen sued city's mayor). These cases are readily
distinguishable. The county cases, Read and Burnette, may be put to the
side for at least two reasons: first, municipal and county governments have
distinct legal structures, and second, those cases also involved one or more
elected officials while this case involves only appointed ones. As for
17
Sampson, it involved a municipality, but was a suit between elected officials.
Municipal and county governments are materially different.
Municipal corporations are organized primarily to give "inhabitants of a
specified territory. . . the powers of
local self-government," while counties are
quasi-municipal corporations - they possess some attributes of a municipal
corporation but lack corporate status, and are organized for the purpose of
exercising some state government functions and not exclusively for the
benefit of citizens within their boundaries. 1 McQuillin, supra, §§ 2.46,
2.46.10; see also,~, Edward J. Berwind, Inc. v. Chicago Park District, 393
Ill. 317,335 (1946) (municipal corporations are created "'at the direct
solicitation or by the free consent'" of their inhabitants, while counties, as
"'quasi municipal corporations,'" have a few characteristics of corporate
existence but are created by the sovereign "'without any particular
solicitation, consent, or concurrent action of the people who inhabit them"')
Chicago, 152 IlL. 392,
(quoting West Chicago Park Commissioners v. City of
403-404 (1894)).
Consistent with this peculiar structure, counties, including home-rule
units like Cook County, must by law include a number of offices that, because
they are state-created and perform some state functions, are not mere arms
of county government. See,~, Lily v. County of Cook, 60 ILL. App. 3d 573,
579-80 (1978) (county commission created by state statute "was something
more than a mere department of County government"). State-created offices
18
performing state functions at the county level include the State's attorney,
see 55 ILCS 5/3-9001 et seq. (2010); the public defender, see id. § 5/3-4000 et
seq.; and the department of corrections, see 55 ILCS 5/3-15001 et seq. (2010),
which until 2008 included the board of corrections, see 55 ILCS 5/3-15004
(2006). The State requires counties to have a sheriff as well. See IlL. Const.
is commissioned by
art. VII, § 4(c); see also 55 ILCS 5/3-6001 (2010) (sheriff
the Governor). Because counties lack a corporate structure and include
officials performing state functions, there may be room for judicial resolution
between certain county officers or agencies. At a minimum, it is
of a dispute
clear such a dispute would not be an intracorporate matter.
Disputes involving elected officials, whether at the county or municipal
level, are also different. The distinction between elected and appointed
officials is significant. Elected officials do not have a supervisor, as
appointed officials do, and answer instead to the electorate. Thus, unlike
appointed officials, they cannot simply take their disputes to a superior for
resolution.
These principles preclude any meaningful attempt to liken the present
case with Read, Burnette, and Sampson. Read was a suit between state-
created entities performing state functions: the sheriff and the board of
corrections. And the state statutes defining the Sheriffs powers "manifest
the county board." Moy v.
the Sheriffs independence. . . from the control of
County of Cook, 244 IlL. App. 3d 1034, 1039 (1993). In addition, the sheriff
19
and the board stood apart because the sheriff is elected. See IlL. Const. art. 7,
§ 4(c). As an elected official, he "answers only to the electorate, not to the
county board." Moy, 244 IlL. App. 3d at 1039. Similarly, Burnette was an
action by one state-created official performing state functions, the public
defender, see 55 ILCS 5/3-4007(b) (2010), against the elected President of
Cook County Board of
the
Commissioners, see IlL. Const., art. 7, § 4(b). And
although Sampson did involve a municipality, it was an action between
elected officials. See 304 IlL. App. 3d at 962-63 (City of Harvey aldermen
sued city's mayor).4 This case involves two appointed municipal officials
whom the Mayor supervises. See Municipal Code of Chicago, IlL. §§ 2-4-020
(2011); see also id. § 2-4-010 (Mayor appoints all City officers except where a
statute provides otherwise). This means that disputes between appointed
officials wil be resolved by the Mayor rather than a court.
In sum, the appellate court improperly relied on cases involving county
or elected officials to allow this intramunicipal lawsuit to proceed. Those
cases do not even discuss jurisdiction and are not analogous. This approach
threatens to wreak havoc in the affairs of municipalities throughout Illinois,
because the court identified no limit to the kinds of disputes within a
4 Some elected municipal officials - the mayor, aldermen, city clerk,
, and city treasurer - are provided for by statute. See 65 ILCS 5/3.1-15-5
(2010) (Illinois Municipal Code); 65 ILCS 20/21-5, 21-11, 21-12 (2010)
(Revised Cities and Vilages Act of 1941). But their function is strictly local,
unlike the county officials we have discussed. The question whether elected
officials of a municipal corporation may sue independently of the
municipality in their official capacity is not presented in this case.
20
municipal corporation that are justiciable. The judgment should be reversed.
II. THE MAJORITY ERRONEOUSLY HELD THAT THE
INSPECTOR GENERAL HAS CAPACITY TO SUE.
The majority below also held that the Inspector General has the power
to retain an attorney and fie a lawsuit to enforce a subpoena without
involving the Corporation CounseL. This holding was also erroneous and
should be overturned.
A. The City Did Not Grant The Inspector General
Power To Sue.
"Unless the political entity that created the department (of a city) has
taken explicit steps to grant that department the authority, the department
lacks the capacity to sue or be sued." 17 McQuillin, supra, § 49:2. The City
took no steps, explicit or otherwise, to grant the IGO or the Inspector General
the capacity to sue. As we explain above, the IGO is but an arm of City
government, without a separate legal existence from the City itself. This
means not only that a lawsuit by him against another City department is
nonjusticiable, but more generally that the Inspector General lacks the
capacity to sue at alL. Again, the various divisions of a municipal corporation
do not have their own corporate status; without that, they lack the capacity
to bring lawsuits or be sued. See,~, 3 McQuillin, supra, § 12.40; Braxton,
396 A.2d at 216-17; Des Moines Park Board, 290 N.W. at 681. See also,~,
Lewis, 496 F.3d at 656 (citing Chan, 123 F.3d at 1007); Dr. Martin Luther
King, Jr. Movement, 435 F. Supp. at 1294; Stevanovic, 385 IlL. App. 3d at
21
631; Paredes, 128 F. Supp. 2d at 1013; Luysterborghs, 927 A.2d at 387-88;
Bowen, 649 So. 2d at 616. As one court has pointedly stated, a suit against a
municipal department (there, a police department) could not proceed any
more than one could "against the accounting department of a corporation."
Darby, 939 F. 2d at 313. Nor did the State take any action to grant the
Inspector General independent legal status, as we have also explained. And
without legal status, the Inspector General cannot sue or be sued.
Because the Inspector General lacks capacity to independently sue in
his own name, the suit he filed here is, at most, a suit by the City. But the
of
Inspector General has no authority to bring litigation on behalf
the City,
the IGO's powers, which for the
either. The IGO ordinance delineates all of
most part are merely investigatory. See Municipal Code of Chicago, IlL. § 256-030(b), (d), (e), (h) (2011). Indeed, the IGO ordinance gives the Inspector
General no litigating authority of any kind. Rather, the City Council vested
that authority and related powers in the Corporation Counsel alone. The
Corporation Counsel has the duty to "(s)uperintend and conduct all the law
business" of
the City, id. § 2-60-020(a), and to "(a)ppear for and protect" the
City's rights and interests in litigation, id. § 2-60-020(b). Accordingly, the
Inspector General - or, for that matter, any City officer other than the
without the
Corporation Counsel - cannot sue on the City's behalf
Corporation CounseL.
In holding otherwise, the majority below relied on the requirement
22
that the Inspector General, for seven days after receiving a timely objection
to a subpoena, "take no action to enforce" the subpoena or "to initiate
prosecution" of the objector. Municipal Code of Chicago, IlL. § 2-56-040; see
A13. The majority found the "most natural reading" of this to be that after
seven days, the Inspector General himself may take "some sort of
enforcement action," A13, even though it acknowledged that the ordinance
actually does not "direct the Inspector General's actions" when negotiations
to resolve a timely objection fail, A11. But the "most natural reading" of
"take no action to enforce" is simply that there is a seven-day period of no
activity to enforce. The ordinance does not remotely express what the
Inspector General may do after seven days. And the provision that within
the seven-day period the Inspector General shall take no action to "initiate
prosecution," rather than "to prosecute," recognizes that the Inspector
General is a step removed from prosecution.
In creating independent litigating authority after seven days, the
majority overstepped. Where statutory language is clear, it must be given its
plain and ordinary meaning; a court may not "construe a statute by altering
its language in a way that constitutes a change in the plain meaning" of the
statute. U.S. Bank National Association v. Clark, 216 IlL. 2d 334,346
(2005).5 The majority opinion contravenes this rule in two ways: it grants
5 The same rules govern interpretation of statutes and ordinances.
See, ~, In re Application of County Collector, 132 IlL. 2d 64, 72 (1989).
23
the Inspector General authority that is not in the IGO ordinance, and it fails
to give effect to the ordinance reposing in the Corporation Counsel alone the
authority over "all the law business" of the City. Municipal Code of Chicago,
IlL. § 2-60-020(a). Subpoena enforcement is part of the City's "law business,"
so any enforcement by the Inspector General displaces the exclusive power of
the Corporation CounseL.
It does not matter why the Inspector General wants the power to take
a subpoena to court for enforcement - whether because of a conflict with the
Corporation Counselor otherwise. He lacks that authority regardless of the
reason the Corporation Counsel declines to proceed on a subpoena. In that
event, as the dissent here recognized, the dispute "lands on the desk of the
mayor, who must decide how to resolve it." A20. As we have noted, the
Mayor has supervisory authority over City officials, see Municipal Code of
Chicago, ILL. § 2-4-020, so a conflict between such officials is appropriately
resolved by him.
In addition, as the City's "chief executive officer," the Mayor "shall
have authority to act, or to designate the officer who shall act, in the
enforcement of any ordinance of the city in all cases where an ordinance fails
to specify the officer who shall be charged with the duty of enforcement."
Municipal Code of
Chicago, IlL. § 2-4-030 (2011). Again, even the majority
acknowledged that the IGO ordinance does not expressly direct the Inspector
General's action or set out enforcement procedures when an objection to a
24
subpoena reaches an impasse. See AlL. When there is a perceived gap in
enforcement authority - whether because the Corporation Counsel has an
apparent conflict of interest or otherwise - the authority to resolve such
issues plainly belongs to the Mayor under section 2-4-030. The majority cast
aside this provision on the basis that it "merely gives the mayor the authority
to act. . .. It does not provide that the mayor is the sole enforcement officer."
A12-A13. But this is a default provision, so it comes into play whenever
there is no other enforcement officer. And while the majority speculated
there could be other officers with ultimate default enforcement authority, the
ordinance certainly does not identify one; nor would it make sense for there
to be a gap in authority under the default provision itself. By contrast, giving
the chief executive that authority makes perfect sense.
Reading the IGO ordinance in conjunction with the Corporation
Counsel ordinance and the provisions regarding the authority of the Mayor,
it is plain that the Inspector General must take enforcement issues to the
Corporation Counsel, and, if
there is a disagreement, to the Mayor. There is
no authority for the Inspector General to simply retain his own counsel and
sue. This construction is faithful to the rule of statutory construction that
legislation should be read in harmony with other provisions pertaining to the
same subject. See,~, Cinkus v. Vilage of Stickney Municipal Officers
Electoral Board, 228 IlL. 2d 200, 218 (2008). Here, the subject of enforcement
generally is covered by the ordinances on the Mayor's and the Corporation
25
Counsel's authority, which can easily be read consistently with the IGO
ordinance's reference to "take no action to enforce" or "initiate prosecution."
When the time comes for action, the Inspector General must ask the
Corporation Counsel to pursue enforcement, and then take any dispute with
the Corporation Counsel to the Mayor. Unlike the majority's reading, this
construction is consistent with both the Municipal Code and the very
structure of municipal government.
None of
the cases the majority cited supports its decision. The
majority looked to Department of
Public Aid v. Kessler, 72 IlL. App. 3d 802
(1979), see A11-A12, even though it acknowledged that Kessler did not
address which state agency or office was the "proper party" to bring the
enforcement action there, A12. And the agency that issued the subpoena in
Kessler was being represented by the Attorney General, see 72 IlL. App. 3d at
803, not outside counsel retained by that agency. Thus, while the court found
that "the absence of standards and procedures" for enforcement in a statute
granting a state agency the power to issue subpoenas did not show that the
agency lacked enforcement authority, id. at 804, the court did not suggest
that government agencies may independently enforce subpoenas without the
Kessler, it
government's lawyer. In any event, whatever else can be said of
plainly does not bear on the capacity to sue of a municipal, as opposed to a
state, department or office.
Burnette v. Stroger, 389 IlL. App. 3d 321 (2009), see A13-A14, does not
26
support the majority's position, either, as the dissent recognized, A20-A21.
That case involved the county board president's decision to layoff certain
employees and to require other personnel in the Public Defender's office to
take unpaid furlough days. See 389 IlL. App. 3d at 322. The Public Defender,
through appointed counsel, challenged the president's decision, and the
president moved to dismiss on the ground, among others, that the Public
Defender lacked the capacity to sue. See id. at 323-25. The appellate court
disagreed, explaining that under the applicable statutory scheme, the Public
Defender was entitled to indemnification and partial immunity, which clearly
contemplated that he could sue; and that this court had "repeatedly"
permitted public defenders to sue to "protect and define" their authority. Id.
at 328-29. And as the dissent noted, Burnette relied on case law recognizing
the "unique role of public defenders as independent agencies within the
criminal justice system." A20. See Burnette, 389 IlL. App. 3d at 328 (citing,
among others, Burnette v. Terrell, 232 IlL. 2d 522,539 (2009) (under Counties
Code, Cook County Public Defender has sole authority to assign work to
assistant public defenders); Maloney v. Bower, 113 IlL. 2d 473,479 (1986)
("legislatively created office" of public defender need not take on duties
this is true
beyond "important responsibilities" imposed by statute)). None of
of the Inspector General.
Indeed, the Public Defender, as we have noted, unlike the Inspector
General, is not purely an arm of local government, but was separately
27
created by statute, see 55 ILCS 5/3-4000 et seq. (2010), to perform State
functions, like preserving the "fundamental right of the people of the State of
Illinois," including indigent defendants, to "quality representation" in
the
criminal and related matters, id. 5/3-4000. The Public Defender is part of
"county public defender systems" that the General Assembly established
his
"throughout the State." Id. What is more, he receives two-thirds of
salary from the State, see id. 5/3-4007(b), not the county. Thus, the Public
Defender, while formally a county office rather than an agency of the State,
see, ~, Johnson v. Halloran, 194 IlL. 2d 493,497-98 (2000), stil fits in a
distinctly independent category.
The majority strained to analogize the Inspector General, citing his
role to investigate wrongdoing of other City officials; the duty of City
employees and others to cooperate with IGO investigations; and the Inspector
General's fixed term and protection from removal without cause. See A14political independence
A15. But the courts have never equated that kind of
with authority to sue. Nor does Burnette's observation that it would "make
no sense to create an entity that could not even defend its right to exist," 389
IlL. App. 3d at 328; A14, support this lawsuit. The State, which has created
suable local entities, as we have observed, likewise created the Public
Defender. In context, then, Burnette's reference to the "right to exist" means
the right to exist as a legally independent, state-created office that is not a
mere arm of county government. That kind of office is not at issue here; the
28
IGO, as a creature of
municipal law, has no right to exist as anything other
than an administrative division of the City - and one the City Council could
eliminate altogether at that.
the Public Defender's
Moreover, in Burnette, the "right to exist" of
office was actually at stake since it could be unable to meet its statutory
obligation to provide "effective representation" to indigent defendants if the
president of the county board could usurp the Public Defender's authority to
manage his office and make personnel-related decisions. 389 ILL. App. 3d at
exist is involved here. No litigating
331-32. Nothing like the IGO's right to
authority is necessary for the Inspector General to investigate, request
information, issue subpoenas, make recommendations, or do anything else
the IGO ordinance authorizes him to do. The Inspector General must do his
the City's government.
job within his limited powers and the structure of
The Inspector General has argued that he has, in effect, inherent
authority to sue because the "general rule" is that public officers may sue
commensurate with their public duties, even if no statute expressly confers
such authority. See Answer to Petition for Leave to Appeal 10; No. 1-10-
1152, Reply Brief 5 (App. Ct.). For this proposition, the Inspector General
cited Hubbard v. Board of
Trustees of
Retirement System, 23 N.W.2d 186,
189 (Mich. 1946), and 67 C.J.S. Officers §§ 227, 322 (2002 & Supp. 2010); but
of
these, only Hubbard describes this as a general rule, and it does so based
entirely on Michigan law. That this may be the rule in Michigan does not
29
make it so in Illinois.6 Moreover, the plaintiff in Hubbard was the mayor of a
city, not an appointed official like the Inspector General. As for C.J.S., the
first cited section states only that officers generally have the implied power to
take actions necessary for the effective exercise of their express powers. See
67 C.J.S. Offcers § 227. This is unilluminating, not only because no Illinois
cases are cited, but because it does not say authority to litigate may be
implied or even mention the power to sue. The other section, which also cites
no Illinois cases, characterizes relevant decisions as split on the question
whether authority to sue must be conferred by legislation or may rest on
implied authority "coextensive with (officers') public trusts and duties." Id.
the
§ 322.7 Nor does anything in the cited sections take account of
organizational structure of a municipal corporation. The notion that the
Inspector General has implied litigating authority is plainly incorrect.
6 Tanner did not cite Hubbard for the "general rule" the Inspector
General posits, but simply to show that courts have entertained disputes
between government agencies. See 58 ILL. App. 2d at 137. And the court
went on to distinguish these cases anyway, on the ground that they did not
involve one member of a governmental body suing the "other members of that
same body." Id.
7 Tellingly, the same section states that "plain and unequivocal
words or imperative public necessity" are required for one public board or
officer to sue another board or officer "of the same public corporation to
adjust conflicting contentions as to the boundaries of their respective rights
or powers." 67 C.J.S. Officers § 322. Thus, to the extent this section adds
anything here, it is that even if justiciable, an intracorporate dispute may not
be litigated without an unambiguous grant of authority or "imperative"
public necessity - neither of
which the Inspector General has.
30
B. The Inspector General Can Properly Perform His
Duties Without Independent Enforcement
Authority.
Contrary to the majority's decision, requiring the Inspector General to
necessary, the Mayor, does not
consult with the Corporation Counsel and, if
"tie (his) hands," render his investigative process "meaningless," A15, or
"frustrate the very purpose for which the (IGO) was created," A10. Among
other things, the Inspector General has all the tools any other investigator
has, plus the power to request information related to an investigation, see
Municipal Code of Chicago, IlL. § 2-56-030(e); examine witnesses under oath,
issue subpoenas compelling the appearance of witnesses and production of
information, and conduct public hearings, see id. §§ 2-56-030(f), (g), (h); and
make recommendations "for correction of any ilegal conduct, inefficiencies or
waste," id. §§ 2-56-030(c), 2-56-065. In addition, the IGO ordinance imposes
a duty to cooperate in IGO investigations on all officers, employees,
the City,
departments, agencies, contractors, subcontractors and licensees of
and every applicant for certification of eligibility for a city contract or
program, see id. § 2-56-090; prohibits retaliation for cooperating in an IGO
investigation, see id. § 2-56-100; and authorizes serious penalties - including
fines, imprisonment, or discipline, including discharge - against those who
obstruct an investigation or improperly refuse to cooperate, see id. §§ 2-56140, -160. Beyond that, the Inspector General has the authority to share his
investigations with law enforcement agencies, see id. § 2-56-110, all of
31
which
have additional tools at their disposal; and may publicly disclose information
concerning his investigations in some circumstances, see id.
Thus, the lack of power to sue does not relegate the Inspector General
to an ineffectual position. Instead, it honors the precise structure that the
City Council, consistent with the organization of municipal government, put
in place: the Inspector General has broad investigative power and political
independence, but his office remains an arm of City government. As the
dissent observed, although the powers of Inspectors General "are broad
within the unit of
which they are a part, including the power to share
investigation materials with law enforcement agencies, Inspectors General
do not have a legal existence independent of the unit of local government of
which they are a part." A21.
Indeed, it is not unusual for Inspectors General to lack the authority to
unilaterally sue to enforce subpoenas. Thus, a conclusion here that the
independent power to unilaterally sue to enforce a subpoena is critical to the
very ability of an Inspector General to function would mean federal
Inspectors General and a whole host of others across the State and the
country, who likewise lack that power, are ineffectuaL. For example, the
federal Inspector General Act ("IGA") assigns federal Inspectors General to
operate within each of several federal agencies. See 5 U.S.C. App. §§ 2(A),
11(2) (2008); see also National Aeronautics & Space Administration v.
Federal Labor Relations Authority, 527 U.S. 229, 241 (1999) (under IGA,
32
investigators of the Inspectors General are "employed by, act on behalf of,
which they are part).. The IGA does
and operate for the benefit of' agency of
not give those Inspectors General the unilateral power to sue without the
involvement of the Attorney General. In fact, federal Inspectors General are
required to use "procedures .other than subpoenas" to obtain information from
federal agencies, id. § 6(a)(4); see also id. § 6(b)(1), and may issue subpoenas
only to outside parties.8
Similarly, in Illinois, the respective enabling acts give neither the
state Executive Inspectors General, see 5 ILCS 430/20-10 et seq. (2010), nor
the Independent Inspector General of Cook County, see Cook County, Ill.,
Code of Ordinances § 2-281 et seq. (2011), the authority the appellate court
granted the Inspector General here. Many Inspectors General or similar
offices in other cities, including Houston, Jacksonvile, Los Angeles, New
the power
York, and San Jose, also function without an affirmative grant of
to unilaterally sue to enforce a subpoena. See Houston, Tex., Executive
Order No. 1-39 Rev. (Mar. 1, 2011); Jacksonvile, Fl., Executive Order 07-09
Los Angeles, Ca., City Charter § 573 (2011); New
(Aug. 28, 2007); City of
York, N.Y., Executive Order No. 16 (July 26, 1978); San Jose, Ca., City
8 Federal Inspectors General report to and are subject to the "general
supervision" of
the head of
the agency or office of
which they are a part,
although no official within the agency may act to thwart an audit or
investigation. 5 U.S.C. App. § 3(a).
33
Charter § 805.9
Likewise, there is no basis for the majority's sweeping claim that
absent authority for the Inspector General to sue to enforce a subpoena
against the Corporation Counsel, the Law Department would be "immune
9 While Philadelphia's Inspector General has the power to issue
subpoenas, see Philadelphia, Pa., Executive Order 4-94, available at
http://www.phila.gov/oig/pdfs/Executive_Order_4-94.pdf. the executive orders
defining his powers do not grant him authority to sue, and any enforcement
power he has is subject to the authority of that city's law department to
the City," Philadelphia,
Pa., City Charter § 4-400 (2011), available at http://www.amlegal.com/
library/ pa/philadelphia.shtml. As for other large cities, Baltimore, Detroit,
"supervise, direct and control all of
the law work of
New Orleans, and Washington, D.C., authorize their Inspectors General to
enforce subpoenas, but none provides that the Inspector General may file an
enforcement action without the City's lawyer. In fact, in Baltimore, even the
issuance of a subpoena requires approval of the City Solicitor. See
http://www.baltimorecity .gov/Government/ AgenciesDepartments/
InspectorGeneral.aspx. And, other than Detroit's enabling legislation, none
states that the Inspector General may retain counsel to pursue enforcement.
See Detroit, Mich. City Charter, art. 7.5, ch. 3 (rev. 2011), available at
http://2009dcrc.org/Documents/ CC3_Broadside%5B1 %5D.pdf; New Orleans
City Code Ordinance § 2-1120 (2011), available at
http://www.nolaoig.org/uploads/FilelPolicies/
OIG%200rdinance%202-1120%20Rev%20Apr%202011.pdf; D.C. Code § 1-
301.115a (2011), available at http://government.westlaw.com/inkedslice/
defaul t.asp?RS=GVTl. 0& VR=2. O&SP=dcc- 1 OOO&Action= Welcome. Notably,
Detroit's revised charter expressly confers authority on the Inspector General
to retain counsel where he has a conflict of interest with "another branch" of
city government. See Detroit, Mich., City Charter § 7.5-312. The Chicago
Municipal Code includes no similar provision.
Links to the sources regarding Inspectors General or similar offices of
Houston, Jacksonvile, Los Angeles, New York, and San Jose are as follows,
respectively: http://www .houstontx.gov/legal/1 -39. pdf;
http://generalcounsel.coj.com/ ExecutiveOrders/2007 -09. pdf;
www.amlegal.com/library/ca/osangeles.shtml;
http://www.nyc.govlhtml/doi/tml/about/report.shtml#sl; and
http://www.sanjoseca.gov/clerk/charter.asp#Art8.
34
from investigation," All, or that "(i)t would be unrealistic and nonproductive
for the Inspector General to request that the Corporation Counsel take action
to enforce a subpoena against her own office," A13. For one thing, the
majority wrongly presumed the Corporation Counsel would not cooperate in
an investigation; the law actually presumes "that a public official performs
the functions of
his office according to law, and that he does his duty," Fuchs
v. Bidwil, 65 IlL. 2d 503, 510 (1976) (internal quotations omitted), and in this
context one of
those obligations is to cooperate with the IGO.io And, as we
have explained, the Inspector General has extensive investigatory tools and
powers at his disposal, which he can exercise to gather information without
suing the Law Department. He can also recommend discipline or discharge
of employees who wrongfully refuse to cooperate in his investigations, and in
some instances publicize the result of
his investigations. And finally, the
Mayor has the authority to intervene, as the majority acknowledged. A15.
C. The Majority Erroneously Condoned The Inspector
General's Retention Of Private CounseL.
Regarding appointment of special counsel, the appellate court did what
it claimed it would not do: resolve, among other things, "the procedure to be
interest." A9.
followed in the event the Corporation Counsel has a conflict of
In so doing, the majority again found authority where none exists in the IGO
the Corporation Counsel.
ordinance and ignored the exclusive authority of
10 The ordinance makes clear that any objection to a subpoena is not
failure to cooperate. See Municipal Code of Chicago, IlL. § 2-56-040.
35
The majority recognized that no ordinance provides for appointment of
counsel where the Corporation Counsel is "interested" in a case, A9, but
nonetheless found the Inspector General "followed proper procedures for the
appointment of special counsel" when he retained counsel, sued, and then
mentioned to the circuit court that it could retroactively approve the
retention, A16. But again, the City Council allocated to the Corporation
the City, and it did not
Counsel authority over "all the law business" of
qualify that role where the Corporation Counsel has a conflict. In such
circumstances, the Corporation Counsel may surely as part of this authority
retain counsel for the Inspector General, and if he does not, the Mayor can
resolve the issue. Accordingly, the majority overstepped in concluding that
the Inspector General could proceed to court with his own attorney and seek
the court's after-the-faet approvaL. Indeed, allowing such an action could
litigation over which its
make the City financially responsible for the costs of
chief executive and chief legal officer would have no control.
On this point, the majority relied on Suburban Cook County Regional
Office of Education v. Cook County Board, 282 IlL. App. 3d 560 ("Suburban
ROE") (1996), see A16, but that case is inapposite. There, a regional
superintendent of schools, an elected official, asked the State's Attorney to
represent him in a àispute with the county board over funding. See id. at
563-64. When the State's Attorney, citing his obligation to represent the
board, declined to represent him, the superintendent retained private
36
counsel, sued the board, and petitioned the court to appoint his counsel as a
special State's Attorney under 55 ILCS 5/3-9008 (2010) (where State's
Attorney is sick or absent, unable to attend, or "interested" in a proceeding,
court may appoint counsel). See 282 ILL. App. 3d at 567-68. The circuit court
denied the petition but appointed a special Attorney General instead. See id.
at 568. Noting that the superintendent was entitled by statute to have the
State's Attorney rather than the Attorney General represent him, the
appellate court held, among other things, that although the State's Attorney
was not "interested" in the action as the appointment statute uses that term,
he had a conflict of interest that the court could redress by appointing a
Special State's Attorney. See id. at 569-75.11 As we have explained, no
provision in the Chicago Municipal Code similarly empowers a court to
appoint counsel to represent a department or official when the Corporation
Counsel is "interested" in the dispute or otherwise unable to provide
representation. For the same reason, Environmental Protection Agency v.
Pollution Control Board, 69 IlL. 2d 394 (1977) ("EPA v. PCB"), see A9, does
not support the retention of private counsel here. There, the court recognized
that the appointment statute gave the courts authority to appoint counsel
when the Attorney General is "interested" in the dispute, but held that the
11 A comparable provision authorizes a court to appoint a special
Attorney General where the Attorney General is unable to provide
representation. See 15 ILCS 205/6 (2010). And another provision provides
for appointment of counsel to represent Illinois's Executive Inspector General
when the Attorney General cannot. See 5 ILCS 430/20-45(b) (2010).
37
statute did not apply because in that case, the Attorney General was not
"interested." EPA v. PCB, 69 IlL. 2d at 400-02.
In Tully v. Edgar, 286 ILL. App. 3d 838 (1997), the court stated that the
authority to appoint counsel in Suburban ROE was based on the common-law
power "to appoint private counsel to abate (a) conflict." Id. at 845-46.
Suburban ROE does not actually say this, but regardless it would not mean
the statute authorizing appointment of a special State's Attorney played no
role in the decision. Indeed, the cases Suburban ROE discussed in finding
the power to appoint a special State's Attorney where a conflict exists all
addressed appointment of a special Attorney General or State's Attorney, for
which statutory authority existed. Two explicitly identified the prior
appointment statute as the source of authority. See In re Petition of
McNulty, 60 IlL. App. 3d 701, 703-04 (1978); In re Mortimer, 44 IlL. App. 3d
249, 251 (1976).12 The third, People ex reI. Sklodowski, 162 IlL. 2d 117, 126-
27 (1994), did not mention the source of appointment authority, so it does not
support the notion that such authority exists absent a statute conferring it.
Regardless, even an entirely independent, common-law source of
authority to appoint counsel would not justify the court's intervention here.
Suburban ROE and Tully involved situations, unlike here, where an elected
12 The prior appointment statute authorized appointment of either a
special Attorney General or a special State's Attorney, as appropriate. See
the
statute is virtually identical to the current appointment statutes.
McNulty, 60 ILL. App. 3d at 703-04. In all other respects, that version of
38
legal offcer has a conflict in providing representation to an independent,
elected officiaL. See Tully, 286 IlL. App. 3d at 847; Suburban ROE, 282 IlL.
which we are aware extends that
App. 3d at 567.13 Indeed, no authority of
kind of power to allow appointment of counsel to the head of a municipal
government office like the Inspector GeneraL. This likely reflects that, as we
have explained, the various divisions within a municipal corporation are
simply administrative divisions without separate legal existence. In
addition, in Tully and Suburban ROE, the plaintiff officials had the statutory
right to be represented by the Attorney General and the State's Attorney,
respectively. See 286 IlL. App. 3d at 846 (citing 15 ILCS 205/4 (2010)); 282
IlL. App. 3d at 569-70 (citing 105 ILCS 5/3A-15 (2010)). Here, by contrast, the
Inspector General has no right to require the Corporation Counsel to bring a
lawsuit that in his judgment is not in the interests of the City. Again, the
Corporation Counsel's duty is, among other things, to "protect the rights and
interests of
the city" in actions brought by or against it or "any city officer,
board or department," Municipal Code of Chicago, IlL. § 2-60-020(b). And the
Corporation Counsel's decision not to bring an action at the behest of another
officer may be reviewed by the Mayor. This structure reveals that any
dispute about subpoena enforcement, including a subpoena issued to the Law
13 The official seeking representation in Tully was an elected member
of a state university board of
trustees. See 286 ILL. App. 3d at 839, 846.
Suburban ROE also involved an elected official, and one who, as a statecreated officer, was not simply an arm of county government. See 282 IlL.
App. 3d at 569-70.
39
Department, presents an internal conflict within the corporation; it is
therefore not amenable to judicial resolution.
Like the court's jurisdictional ruling, the holding that the Inspector
General is capable of suit and may exercise that capacity without involving
the Corporation Counsel has troubling implications for City government. It
compromises the ability of municipalities to order their internal affairs
without the threat of judicial revision. Worse stil, the decision allows an
official with, at most, political independence, to take legal action on behalf of
the City without involving the very City official who actually has litigating
authority, not to mention the Mayor, who supervises all City officers. This
means that the City, a single legal entity, wil have difficulty taking a single
consistent position in lawsuits affecting the interests of the City as a whole,
and that there wil be protracted litigation over which official properly
represents the City in each case.
CONCLUSION
For all these reasons, this court should reverse the judgment of the
appellate court and reinstate the judgment of the circuit court.
40
Respectfully submitted,
STEPHENR. PATTON
Corporation Counsel
of the City of Chicago
BY:
~&~
. KPOWE
ssistant Corporation Counsel
Suite 800
30 North LaSalle Street
(312) 744-3173
41
APPENDIX
TABLE OF CONTENTS TO THE APPENDIX
PAGE(S)
Supreme Court Order, Sept. 28, 2011 .............................. Al
Appellate Court Opinion, Apr. 29, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . A2-A21
Notice of Appeal, Apr. 27,2010 (C. 129) ........................... A22
Report of Proceedings Before the Circuit Court,
Apr. 21,2010 ............................................ A23-A63
Order of
the Circuit Court, entered Apr. 21, 2010 (C. 128) . . . . . . . . . . . . . A64
Ordinances Involved. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A65-A76
Table of
Contents of
the Record on Appeal ..................... A77-A79
,.
Supreme Court of Illinois
Clerk of the Court
Supreme Court Building
Springfield, Illinois 62701
(217) 782-2035
112488
September 28, 2011
Mr. J. Mark Powell
City of Chicago Dept. of Law
30 N. LaSalle Street, Suite 900
Chicago, IL 60602
No. 112488 - Joseph M. Ferguson, etc., respondent, v. Mara S.
Georges, etc., petitioner. Leave to appeal,
Appellate Court, First District.
The Supreme Court today ALLOWED the petition for leave to
appeal in the above entitled cause.
We call your attention to Supreme Court Rule 315 (h) con-
cerning certain notices which must be filed.
,.
6,3\
.. "..
I- Y \\t~'Jt\\
\.;...~.
S£l '3 ß ttl"
Al
NOTice
Th text of this opinion may
be change or corrected
prir to th time fo filing
of
8 Petiion for Rehnng or
FIRST DISTRICT
th dlspotl of th øm.
Sixrn DIVISION
APRI 29,2011
No. 1-10-1152
)
JOSEPH M. FERGUSON, as Inspector General
of
the
City of Chicago,
)
)
)
)
)
)
/)
Plaintif-Appellant,
v.
the
MA S. GEORGES, as Corporation Counsel of
City of Chicago,
)
)
)
)
Defendant-Appellee.
Appeal from the
Circuit Court of
Cook County.
No. 09.CH 43287
Honorable
Nancy 1. Arold,
Judge Presiding.
)
mSTICE ROBERT E. GORDON delivered the judgment of
the court, with opinion.
Justice McBride concurred in the judgment and opinon.
Justice Cahill dissented, with opinion.
OPINION
This matter is before us to determne whether defendant, Mara Georges, in her offcial
capacity as the corporation counsel of
the City of
Chicago (Corporation Counsel), is required to
produce unredacted copies of documents that she claims are shielded by the attorney-client
privilege to Joseph Ferguson, in his offcial capacity as inspector general of
Chicago
the City of
(Ispector General). Afer the Inspector General served the Corporation Counsel with a
subpoena for the documents and the Corporation Counsel refused to provide them, the Inspector
General retained private counsel and brought suit against the Corporation Counsel to compel
production of the unredacted documents pursuant to the subpoena. The Corporation Counsel
filed a motion to dismiss pursuant to both sections 2-615 and 2-619 of
the Code of
Civil
Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2008)). The trial court granted the
A2
No. 1-10-1152
Corporation Counsel's motion to dismiss, fiding that the Inspector General did not have the
authonty to retain private counsel and that the documents were protected by the attorney-client
pnvilege. The Inspector General appea)ed. For the reasons that follow, we reverse.
BACKGROUN
This case revolves in large part around the powers and duties of the Inspector General and
the Corporation CounseL. Therefore, a bnef discuSsion of their respective offces is helpfuL. The
Offce of
the Chicago
Inspector General (IGO) is a municipal offce created by chapter 2-56 of
Municipal Code (Municipal Code). Chicago Municipal Code §2-56-01O et seq. (added Oct. 4,
1989). The duties ofthe IGO include "investigat(ing) the pedormance of governental offcers,
employees, fuctions and programs," either in response to a complaint or .on the Inspector
. General's own initiative, in order to "detect and prevent misconduct, ineffciency and waste within
the programs and operations of
the city governent." Chicago Municipal Code §2-56-030
(added Oct. 4, 1989).
The powers and duties of
the Inspector General extend to the conduct of
"all elected and
appointed offcers of the city governent in the pedormance of their offcial duties" and "all
employees of
of
the city governent in
their offcial duties," except for members
the pedormance of
the city council and their employees. Chicago Municipal Code §2-56-050 (added Oct. 4,
1989). The powers and duties of
the Inspector General also extend to the conduct of
"all
contractors and subcontractors in the providing of goods or servces to the city pursuant to a
contract"~ "business entities in seelcing contracts or certificates of eligibilty for city contracts"~
and "persons seeking certifcation of eligibilty for paricipation in any city program." Chicago
2
A3
No. 1-10-1152 .
Municipal Code §2-56-050.
Eveiy "offcer, employee, department, agency, contractor, subcontractor and licensee of
the city" has a duty to cooperate with the Inspector General in any investigation or hearig
undertaken pursuantto the Municipal Code. Crucago Municipal Code §2-56-090 (added Oct. 4,
1989). The investigatoiy files and reports of
the IGO are confdential and canot be released to
any person or agency other than the United States Attorney, the Ilinois Attorney General or the
Cook County.
State's Attorney of
The powers of
the lGO include the power "(t)o issue subpoenas to compel the attendance
of witnesses for purposes of exannation and the production of documents and other items for
inspection and/or duplication." Chicago Municipal Code §2-56-030. Once the Inspector General
issues a subpoena, the person to whom the subpoena is directed may file an objection to the
subpoena. "For seven days afer receipt of a timely objection to a subpoena, the inspector general
shall take no action to enforce the subpoena or to initiate prosecution of the person to whom the
subpoena is directed." Crucago Municipal Code §2-S6-040 (added Oct. 4, 1989).
The offce of the Corporation Counsel is created by section 2-60-020 of the Municipal
Code. Chicago Municipal Code §2-60-020 (added Sept. 5,2007). The Corporation Counsel is
the "head of
the deparment oflaw of
the city." Crucago Municipal Code §2-60-020. The duties
of
the Corporation Counsel include "(s)uperintend(ing) and *** conduct(ing) all the law business
of
the city." Chicago Municipal Code §2-60-020. The Corporation Counsel is also required to
. "(a )ppear for and protect the rights and interests of the city in all actions, suits and proceedings
brought by or against it. or any city offcer, board or deparment" or brought against an
3
A4
regaràing conversations with City employees; and (iv) charts and notes by one Law Depa.rtment
attorney - all regarding the matter *** under investigation." The 100 told the law department
4
AS
No. 1-10-1152
that it did not believe that the City could properly shield the documents using either the attomey-
client pnvilege or the work product doctnne.
On October 8,2009, the lGO served a subpoena on the Corporation Counsel as head of
the law department for the documents requested. Along with the subpoena, the lGO included a
letter summarzing the legal arguments it believed supported its position, as well as a suggested
memorandum of understanding concerng the way in which the documents should be handled.
On October 15,2009, the Corporation Counsel made an objection to the subpoena. On October
21,2009, the IGO responded
to the Corporation Counsel's objection with a letter stating that the
IGO disagreed with the grounds of
the objection. The Corporation Counsel did not comply with
the subpoena.
On November 4,2009, through pnvate counsel, the Inspector General1 in his offcial
capacity :fled suit against the Corporation Counsel in her offcial capacity, seeking a declaratory
judgment, a wnt of mandamus, and enforcement of the subpoena to compel the Corporation
Counsel to produce unredacted copies of the documents requested by the subpoena. The
Corporation Counsel filed a motion to dismiss the complaint pursuant to sections 2-619 and 2-
615 of the Code. The Corporation Counsel argued that the complaint should be dismissed
pursuant to section 2-619 because (1) the trial court lacked junsdiction since the Inspector
1 The complaint was filed by First Deputy Inspector General Mary E. Hodge. At the time,
the position of Inspector General was vacant, as the current Inspector General had not yet been
the IGO. Afer the current Inspector
approved by the city council, so Hodge was the head of
General was confrmed by the city council, he was substituted as plaintif in December 2009.
5
A6
No. 1-10-1152
General
lacked the capacity to sue, (2) the trial court should not entertai a dispute between two
paries within the same governental entity, and (3) the documents were protected by the
attorney-client privilege. The Corporation Counsel also argued that the complait should be
dismissed pursuant to section 2-615 because the complaint did not adequately state a cause of
action for declaratory judgment or mandamus.
A hearg on the Corporation Counsel's motion was held on Apri 21, 2010. Afer
hearing the pares' arguments, the tral court found that the Inspector General did not have the
authority to engage its own attorney and that the attorney-client privilege was avaiable to the
Corporation CounseL. The trial court entered an ord-er dismissing the Inspector General's
..
complaint with prejudice. The Inspector General timely appealed.
ANALYSIS
On appeal, the Inspector General raises two issues: (1) the tral court erred in finding that
the attorney-client privilege applied to shield the subpoenaed documents and (2) the tral court
erred in finding that the Inspector General did not have the authority to retain a private attorney.
The Corporation Counsel also argues that we lack jurisdiction over the instant matter because it is
an intragovernental dispute and therefore non
jurisdiction
justiciable. We address the issues concerning
and the Inspector General's capacity to sue fist.
Intragovernmental Dispte
The Corporation Counsel fist argues that we lack jurisdiction over the instant matter
because "this is effectively a suit by the City against the City." W~nether the instant issue is
justiciable presents an issue oflaw, which we review de novo. Morr-Fitz, Inc. v. Blagojevich,
6
A7
No. 1-10-1152
231 Il. 2d 474, 488 (2008). The Corporation Counsel cites to Tanner v. Solomon, 58 m. App.
justiciable. However,
2d 134 (1965), in support of the argument that the instant suit is non
Tanner involved a very diferent situation than the one at issue here. In Tanner, one member of
. the Addison Board of
Fire and Police Commssioners brought suit against the two other board
members based on a dispute over candidates for the police deparment. Tanner, 58 TIL App. 2d at
135-36. In fiding that the board member was unable to brig suit agaist the other board
members, the court fist noted that there was case law holding that one agency of governent
could bring suit against another goveinental agency to resolve a dispute. Tanner, 58 TIL App.
2d at 137. However, the court pointed out that in the case before it, "one member of a
that same bod." (Emphasis added.) Tanner,
governental body is suing the other members of
"it would not be a salutar thing for the courts
58 TIL App. 2d at 137. The court concluded that
to step in and resolve these disputes on the application of every minority member whose opinions
*** have been over-ridden by the majority." Tanner, 58 TI. App. 2d at 138.
In the case at bar, we do not have one individual suing another individual from the same
body but instead have the head of one municipal offce suing the head of a different municipal
offce. Whe they are both deparments withi the same municipal corporation, we have
considered analogous situations in the pa~t and are wiling to do so again. See, e.g., Burnette v.
Stroger, 389 TIL App. 3d 321 (2009) (Cook County public defender brought suit against president
of
Cook County board of
commssioners); Readv. Sheahan, 359 TI. App. 3d 89 (2005) (members
of Cook County board of corrections brought suit against Cook County sheriff; Sampson v.
Graves, 304 Il. App. 3d 961 (1999) (City of
Harvey aldermen brought suit against City of
Harvey
7
A8
No. 1-10-1152
mayor). Accordingly, we fid that the dispute here is justiciable.
Capacity to Sue
In granting the Corporation Counsel's motion to dismiss, the tnal court found that the
Inspector General lacked the capacity to sue the Corporation CounseL. The Inspector General
argues that the tnal court erred in grantig the motion to dismiss on that basis. We review the
trial court's grant of
379
the motion to dismiss de novo. Progressive Insurance Co. v. Wiliams,
Il. App. 3d 541, 544 (2008). As a preliminar matter, we note that the issue before us is the
narow question of
whether
the Inspector General was entitled to hire a pnvate attorney to sue to
enforce the subpoena served on the Corporation CounseL. We do not purport to resolve any
broader questions involving a nght of the Inspector General to hie an attorney in any other
circumstance or the procedure to be followed in the event the Corporation Counsel has a confict
of interest.
In the case at bar, the trial court's decision was based in par on the ilinois Supreme
Court case of Environmental Protection Agency v. Pollution Control Board, 69 il. 2d 394
(1977) (EPA). That case concerned a request by the ilinois Pollution Control Board to be
represented by counsel other than the Attorney General in certain situations. EPA, 69 Il. 2d at
legal offcer of
397. The court noted that the Attorney General was the chief
the state of
ilinois
and had the duty of acting as the legal representative of state agencies. EPA, 69 il. 2d at 399.
The board pointed to a statutory provision providing that pnvate counsel could be
appointed
where the Attorney General was "interested" and argued that the Attorney General was interested
in that case. EPA, 69 nl. 2d at 400. However, the court held tIiat the Attorney General was only
8
A9
No. 1-10-1152
"interested" under the statute in two situations: when the Attorney General was invòlved with the
case as a private individual or when the Attorney General was an actual par to the action. EPA,
the Attorney General is to have
69 TI. 2d at 400-01. The court concluded: "It seems to us that if
the unqualifed role of chieflegal offcer of
afais of
the State, he or she must be able to direct the legal
the State and its agencies. *** To allow the numerous State agencies the libert to
employ private counsel without the approval of the Attorney General wolild be to invite chaos
into the area of legal representation of the State." EPA, 69 TIL 2d at 401-02.
In the case at bar, the
Municipal Code does not include an analogous provision alowing
for appointment of private counsel if the Corporation Counsel is "interested." If there was, ths
would be a simple case, since the Corporation Counsel is a par to the litigation. Accordingly,
we examine the provisions of the Municipal Code to determne if there is a source of authority for
the Inspector General's suit.
The Municipal Code provides the IGO with the power to investigate and "(t)o issue
subpoenas to compel the attendance of
witnesses for purposes.
of examination and the production
of documents and other items for inspection and/or duplication." Chicago Municipal Code §2-56-
030. The courts should not frstrate the very purpose for which the offce ofInspector General
was created. Once the Inspector General issues a subpoena, the person to whom the subpoena is
directed may fie an objection to the subpoena. "For seven days after receipt of a timely objection
to a subpoena, the inspector general shall take no action to enforce the subpoena or to intiate
prosecution of
the person to whom the subpoena is directed." Chicago Municipal Code §2-56-
040.
9
A10
No. 1-10-1152
The paries disagree as to the meaning of
section 2-56-040. The Inspector General argues
that it must have the power to enforce the subpoena because the ordinance provides that for seven
days, "the inspector general shall take no action to enforce the subpoena." (Emphasis added.)
the ordinance meas that afer
Chicago Municipal Code §2-56-040. It claims that the language of
seven days, the Inspector General may take action to enforce the subpoena. The Corporation
Counsel, on the other hand, argues that the language does not mean that the "action to enforce" is
taken by the Inspector General. Instead, she claims that the Corporation Counsel has control over
any action to enforce the subpoena. Ifthat would be the case then the 100 couid never
investigate the Corporation Counsel because that offce would be immune from investigation since
they would be the only entity to enforce the subpoena.
The dissent reads - the plain language of the ordinance to require a dispute over the
enforcement of a subpoena to be ultimately determed by the mayor. However, the plain
language of the ordinance does not address the procedure to be followed in the case of such a
dispute. The only references to a dispute 'are the intruction that for seven days following an
objection, "the inspector general shall take no action to enforce the subpoena" and that during
that Seven days, the Inspector General "may attempt to resolve the objectionthrough negotiation
with the person to whom the subpoena is directed." Chicago Municipal Code §2-56-040. The
ordinance does not direct the Inspector General's actions in the c"ase an attempt to resolve the
dispute fais.
\-"Thile there is no case discussing the Inspector- General's subpoena power, we find
Department of Public Aid v. Kessler, 72 Il. App. 3d 802 (1979), to be instructive. In Kessler,
10
All
No. 1-10-1152
the TIinois Department of
Public Aid (IDPA) served a subpoena on the defendantand, when the
defendant did not comply, filed an action in the circuit court to enforce it. Kessler, 72 TI. App. 3d
at 803. The defendant argued that the IDP A did not have the power to enforce the subpoena in
the circuit court because there was no statutory provision providing it that power. Kessler, 72 TI.
App. 3d at 804. The court held that despite the fact that there were no "standards and
procedures" in the statute granting the IDPA the power to compel the production of
books and
papers by subpoena, the statute did not bar the IDP A from attempting to enforce the subpoena in
court because the absence was not signicant "inasmuch as the circuit courts, rather than the
at
agency itself, are the entities with the authonty to do the enforcing." Kessler, 72 IlL. App. 3d
804.
The Corporation Counsel is correct when she notes that Kessler did not address the
question of whether the agency or the Attorney General was the proper part for bnnging such an
action, wluch is an issue in this case. However, Kessler is instructive in that the court allowed the
agency to bring an action to enforce the subpoena despite the lack of explicit statutory authonty.
Here, tltere is authority for the Inspector General to issue a subpoena, but there is no explicit
the Inspector General has the
authorítY for the 100 to enforce that subpoena. However, if
authority to issue a subpoena, it certainly can be reasonably inferred that the authonty to issue
includes the authonty to enforce. Like Kessler, despite the lack of procedures concernng
enforcement of the subpoena, we find that the Inspector General may enÍorce the subpoena
through recourse in the circuit court.
The dissent states that section 2-4-030 of
the Municipal Code "provides that where the
11
A12
No. 1-10-1152
legislation does not explicitly provide for enforcement, the mayor is the enforcement offcer."
However, secton 2-4-030 merely gives the mayor the aurhority to act, or "to designate the offcer
who shall act, in the case where the ordinance fails to specif the offcer who is charged with the
duty of enforcement. It does not provide that the mayor is the sole enforcement offcer.
Additionally, in the ordinance here, there is a reference to the enforcement of the subpoena
in the clause that prohibits the Inspector General from takg any action to enforce the subpoena
for seven days followig an objection. We agree with the Inspector General that the most natural
reading of this clause indicates that afer seven days, the Inspector General may take some sort of
enforcement action. In most cases, that could include the Corporation Counsel's involvement;
however, in this case, it is the Corporation Counsel who is objectig to the subpoena. It would be
unrealistic and nonproductive for the Inspector General to request that the Corporation Counsel
take action to enforce a subpoena against her own offce. Further, the ordinance provides that the
"the inspector general shall take no action to enforce the subpoena or to initiate prosecution of
the person to whom the subpoena is directed." (Emphasis added.) Chicago Municipal Code §2-
authority to take some sort of
56-040. Once again, this implies that the Inspector General has the
action concernng the subpoena. Accordingly, we fid, at least in the limited situation where the
Corporation Counsel is served with a subpoena by the Inspector General and objects to its
enforcement, that the Inspector General may seek to enforce the subpoena in the circuit court by
hig its own counseL.
We find support for our conclusion in our decision in Burnette, 389 Il. App. 3d 321. In
that case, the Cook County public defender brought suit against the president of the Cook County
12
AI3
No. 1-10-1152
board of commssioners afer the board approved a budget amendment that included laying off
personnel in the public defender's offce. Burnette, 389 IlL. App. 3d at 322. One issue in the case
was whether the public defender was an entity capable of bringing suit; the president argued that
the public defender was not, since there was no statute explicitly provietng that authority.
Burnette, 389 Il. App. 3d at 327-28. Afer noting that the statutory scheme did contemplate that
the public defender was an entity capable of suit, we pointed out that "it would make no sense to
create an entity that could not even defend its right to exist" and that "our supreme court has
repeatedly permitted public defenders to sue, in order to protect and defie the scope of their
statutory authority." Burnette, 389 IlL. App. 3d at 328.
The dissent takes issue with our reliance on Burnette, noting that Burnette involved the
recognition of the unique role of public defenders as independent agencies within the criminal
justice system and stating that no such pronouncement has been made in the case o.f Inspectors
General. Whle, as the dissent notes, this is a case of first impression, we find Burnette to be
instructive, as is Kessler, because of
the IGO. The Inspector General occupies a
the nature of
unique role withi the City of Chicago's governent. The Inspector General is entrusted with
"investigat(ingJ the pedormance of governental offcers, employees, functions and programs,"
either in response to a complaint or on the Inspector General's own intiative, in order to "detect
and prevent misconduct, ineffciency and waste within the programs and operations of the city
governent." Chicago Municipal Code §2-56-030. As such, every "offcer, employee,
deparment, agency, contractor, subcontractor and licensee of the city" has a duty to cooperate
with the Inspector General in any investigation or hearig undertaken pursuant to the Municipal
13
A14
No. 1-10-1152
this unique role, the Inspector
Code. Chicago Municipal Code §2-56-090. In recogntion of
General is appointed for a fixed term and can only be removed from the offce for cause. Chicago
Municipal CQde §2-56-020, §2-56-130.
In the case at bar, the Inspector General's investigation is being frstrated by the
Corporation Counsel's refusal to comply with a subpoena.2 Without the ability to bnng an action
to enforce the subpoena, the Inspector General has no means to challenge the Corporation
Counsel's refusal other than askig the mayor to resolve the dispute. The ordinance creating the
IGO could not have been designed to tie the Inspector General's hands in this way because in
doing so its investigative process would be meanngless. The IGO was created "to detect and
prevent misconduct, ineffciency and waste within the programs and operations of the city
governent." Chicago Municipal Code §2-56-030. To achieve its goals, the Inspector General
must be allowed to bnng an action in the circuit court to enforce a subpoena against the
C~rporation Counsel to further its investigative duties.
The tnal court found that the Inspector General shouln have approached the Corporation
Counsel, at which point "it would be up to her to determne that there was a confict." If there
was a confict, "which there obviously is," the Corporation Counsel would have needed to either
seek authonzation from the city council to engage special counselor ask the tnal court to appoint
special counseL. We do not agree with ths procedure and fid it to frstrate the independent
2 Whether the refi.sal to comply with the subpoena was proper is discussed below. For the
purposes of the discussion here, it is only relevant that the Corporation Counsel refused to comply
with the subpoena. '".
14
AIS
No. 1-10-1152
investigative duties of the Inspector General. We furter find that the Inspector General followed
proper procedures for the appointment of special counseL.
As we found earlier, the Inspector General has the authority to bring suit against the
Corporation Counsel in this case. With such a clear confct of interest, it would be exalting form
over substance to require the Inspector General to ask the Corporation Counsel to determe
whether a confict of interest existed. Moreover, the Inspector General informed the trial court
that it had the discretion to appoint private counsel to represent him. It was not necessary for the
request to come from the Corporation CounseL. See Suburban Cook County Regional Offce of
Education v. Cook County Board, 282 IlL. A.pp. 3d 560, 575 (1996) (fiding that a proper
of confct between offcials
procedure for appointment of a special State's Attorney in the case
the cour's
the State's Attorney is obligated to represent "would reqùire the invocation of
discretion by either the State's Attorney or the offcials" (emphasis added)). The Corporation
Counsel notes that the Inspector General merely mentioned the court's authority in its brief
and at
the hearng on the motion to dismiss, claig that the issue w!is not properly raised and should be
fodeited. However, we choose to consider the is~ue. Flynn v. Ryan, 199 II. 2d 430,438 n.l
(2002) (waiver ís an admonition to the parties, nota liÌntation upon the powers of courts of
the Corporation Counsel's motion to
review). Accordingly, we fid that the trial court's grant of
dismiss on this basis must be reversed.
Attorney-Client Privilege
Since we have determned that we have jurisdiction over the instant matter and the
Inspector-General was within its authority to bring suit against the Corporation Counsel, we
15
A16
No. 1-10-1152
consider the issue of whether the trial court erred in finding that the Corporation Counsel could
assert the attorney-client privilege to shield documents from the Inspector General. Agai our
review of
the trial court's dismissal under section 2-619 is de novo. Van Meter v. Darien Park
District, 207 m. 2d 359, 368 (2003).
The purpose of the attorney-client priviege is "to encourage and promote full and fran
consultation between a client and legal advisor by removing the fear of compelled disclosure of
information." Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Il. 2d 103, 117-18 (1982).
However, because the privilege poses a bar to the discovery of relevant and material facts, it is an
exception to the general duty to disclose and is interpreted narowly. Consolidation Coal, 89 Il.
2d at 118.
As a general matter, the attorney-client priviege is available to a municipal corporation.
the Sanitary District of
Chicago, 351 m.
In re Informa.tion to Discipline Certain Attorneys of
206,268 (1932). However, there has been little case law as to the availability of
the privilege or
its scope in the context of an action between two governent agencies. The Inspector General
asks us to impose a rule that the attorney-client privilege is not available to City attorneys in an
offcial IGO investigation into the City's misconduct. The Corporation Counsel advocates for the
opposite rule: that the privilege applies to "communications between governental entities and
governental counseL." However, we cannot accept either pary's argument here.
In the case at
bar, the Corporation Counsel has not shown that the documents at issue are
covered by the attorney-client privilege. As the party seeking to shield the documents, the
Corporation Counsel has the burden of establishig that "the communcation originated in a
16
AI7
No. 1-10-1152
confdence that it would not be disclosed, was made to. an attorney acting in his legal capacity for
the purpose of securing legal advice or servces, and remained confdentiaL." Consolidation Coal,
89 m. id at 119. However, we canot find any evidence in the record that the Corporation
Counsel made such a showing before the trial court and there is insuffcient information in the
record concerning the documents at issue for us to review the trial court's fiding of priviege.
There are no detais as to the creators of the documents, their recipients, or the contents of
any of the documents. There are also no details concernig the titles, duties, or authority of any
of the individuals involved with the documents. The only information in the record is a statement
in the Inspector General's coInplaint indicating that the redacted documents included "(i)
communications among Law Department attorneys; (ii) communications between Law
Deparment attorneys and other City employees; (iii) notes by two Law Deparment attorneys
regarding conversations with City employees; and (iv) charts and notes by one Law Deparment
attorney - al regarding the matter *** under investigation"; there was also a redacted copy of
the privilege log attached as an exhbit to the complaint. Moreover; there is no indication in the
record that the trial court reviewed unredacted copies of the documents in camera to determne
whether they were covered by the attorney-client privilege. Without this information, we cannot
review the propriety of
the trial court's fiding. Accordingly, we remand the case to the trial
court for the lin:ted purpose of conducting an in camera inspection of the unredacted documents
and making factual findings consistent with the concerns outliiied above.
CONCLUSION
We find that the Inspector General had the authority to bring the instant suit against the
17
Al8
~
.Nø~ 1-10-1152
Corporation CounseL Additionaly, we find that we lack suffcient information to determne
. whether the subpoenaed documents are shielded by the attorney-client priviege and remand the
case to the trial court for that limited purpose.
Reversed and remanded with instructions.
18
A19
No. 1-10-1152
JUSTICE CAiL dissenting:
I sympathize with the diffculty the majority faced in this case: as a matter of first
impression, what to do with an attempt by a city offcer to bring a declaratory judgment action
against a fellow city offcer who just happens to be the attorney for the city. The majority
concludes that the enabling ordinance for the Inspector General of the city, while not explicitly
granting him power to seek the aid of the courts to enforce rus subpoenas, must of necessity,
grant him that power by implication. I canot agree and must dissent.
As I read the Inspector General's enabling ordinance, his subpoena power is
administrative, and the scopeis circumscribed by the plain language of the ordinance: a dispute
over enforcement ultimately lands on the desk of the mayor, who must decide how to resolve it.
To grant to the Inspector General the power to bypass the city's attorney and the mayor himself
and seek a declaratory judgment on the nature and extent of his power is to grant to a city offcer
appointed by the mayor powers the city council did not (and probably could not) delegate. The
.,.\
municipal code provides that where the legislation does not explicitly provide for enforcement, the
mayor is the enforcement offcer. Chicago Municipal Code §2-4-03.0 (1990).
The
its conclusion, Burnette v. Stroger, 389 Il.
case cited by the majority in support of
App. 3d 321,905 N.E.2d 939 (2009), in which the Cook County public defender was alowed to
sue the Board of Commissioners, is not persuasive. Burnette relied on supreme court opinons
that recognized the unique role ofpubIic defenders as independent agencies vvithin the criminal
justice system. No such pronouncement has been made in the case of Inspectors General, who
remain, at the city, county and state level, offces within units of governent. Although their
19
A20
No. 1-10-1152
powers are broad within the unit of which they are a par, includig the power to share
investigation materials with law enforcement agencies, Inspectors General do nòt have a legal
existence independent of the unit of governent of which they are a par.
I would af the dismissal of this action on the grounds that the Inspector General of
bringing suit.
the City of Chicago is not a legal entity capable of
20
A21
( 7 -~~ c: ~\~
Notice of Appeal
(8/13/08) CCG 0256
APPEAL TO THE APPELLATE COURT OF ILLINOIS /"~"-Ð~
FROM THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS \. t~ß\N.
COUNTY DEPARTMENT, CHANCERY DIVISIONIDISTRICT;,
-
JOSEPH M. FERGUSON, in his offcia caacity as lnspetor Genera of the City of Chicao
--.
v.
J 0- ) JS-(b
Reviewing Court No.
Plaintiff Appell ~
Circuit Court No. 09 CH 3287
MA S. GEORGES, in her offcial caity as Corpraon Cowil of
th City of
Chicago
Defendant/ Appell ~
ao
:t
o
-l
:r
~
NOTICE OF APPEAL
(Check if applicable. See llL Sup. Ct. Rule 303(a)(3).)
o Joining Prior Appeal 0 Separate Appeal 0 Cross Appeal
co
:i
°0
~r-
zni
.;:
;J.
-
;:~
)i
"V
."
ri
-:i
C:
Cl
."
::
I'
..
,.)i
(;
..JI
52
C'
q)~
0e--,
c:.. .1
:I..-''~
..f;r-.
:(0
C;,.
,...0'
:I C)""
~ø
~ as
a; ..
èi C4 t§gl-
:i _
r:;'." "I
(;;.
:::;r;
Appellant's Name: JOSEPH M. FERGUSON
Appellant's Attorney (if applicable): ALEXANDER POLIKOFF
Address: BUSINSS AND PROFESSIONAL PEOPLE FOR THE PUBLIC INTEREST, 25 EAST WASHINGTON STREET, SUITE 1515
City/State/Zip: CHICAGO, IL 60602
Telephone Number: 312-641-5570
EJ Cook County Attorney C : 46354 or 0 Pro se 99500 (Choose one)
Appellee's Name: MARA S.
Appellee's Attorney (if applicable): KEVIN M. FORDE
Address: KEVIN M. FORDE, LTD., 111 WEST WASHINGTON STREET, SUITE 1100
City/State/Zip: CHICAGO, IL 60602
Telephone Number: 312-641 -144 1
IZ Cook County Attorney Code: 23414 or 0 Pro se 99500 (Choose one)
An appeal is taken from the order or judgment described below:
Date ofthe judgment/order being appealed: 04/21/10
Name of judge who entered the judgment/order being appealed: HON. NANCY J. AROLD
Relief sought from Reviewing Court: REVERSAL OF THE TRIAL COURT ORDER GRAING THE MOTION TO
DISMISS
! understand that a ~~Request for Preparatin oÍ Recorå on Appeai" form (CCA 0025) must be completed and the initial
payment of $11 0 made prior to the preparation of the Record on Appeai. The Cierk's Offce wil!! begin preparation of
the ROA unti the Request form and payment are received. Failure to request preparation of the ROA in a timely manner,
i.e., at least 30 days before the ROA is due to the Appellate Court, may req' e Ap ellant to fie a request for extension
()f time with the Appellate Court. A ~~Request for Preparation of S e ental cord n Appeal" form (CCA 0023)
must be completed prior to the preparation of the Supplemental RO
DOROTHY BROWN, CLERK OF THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
C00129
A22
o~
P'
Ferguson v. Georges
Date: April 21, 2010
ORIGiNAL
. t,,:
f:
r
l
¡~
:-r" .~
Âmicus Court Reporters, Inc. ll
Phone:312/641-3500
Fax:312/641-3795
~'
w, ~
Email: info(§amicusreporters.com
)
\L
00-002 A23
0J/ì~
i Llp?./ ,
~l. Page 1
Ferguson v. Geò~ges
STATE OF ILLINOIS
~~
)
) ss:
COUNTY OF coo K
)
K,
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
"0:
¿~ ';iC'-¿::~~"
¡;~..
COUNTY DEPARTMENT - LAW DIVISION
c:"."i~.:..;..O;.~~..
G,. t'
JOSEPH M. FERGUSON, in his
('..7
.-' '..'.L~
;. 0 0
J..
....t)
.. :õ ..... '¡, .-:J ~~
official capacity as
.-, . t/-,
(,"
-y k.:..
'.d;'(",(7
;.,\ '..\
Inspect9r General of the
\P"-,, ".
--
,/. ~..'.'..::: '(". -~:'
Ci ty of Chicago,
'-
~1~
(?'5\ ~.~.¡p
'd~
k~ '; ~
Plaintiff,
-i~
vs.
No. 09 CH 43287
MARA S. GEORGES, in her
official capacity as
Corporation Counsel of the
City of Chicago,
Defendant.
REPORT OF PROCEEDINGS at the hearing of
the above-entitled cause before the Honorable Nancy
Arnold, Judge of said Court, on the 21st day of
April, 2010, at the hour of 11: 20 p. m.
AMICUS COURT REPORTERS, INC.
312.641.3500
617 e460c-Oea4-4218-8baS-Sf80c81 fOb 70
00003 A24
Page 2
Ferguson v. Ged..ges
1
2
3
APPEARACES:
BUSINESS AND PROFESSIONAL PEOPLE FOR THE
PUBLIC INTEREST
(25 East Washington Street
Suite 1515
4
5
312.641.5570), by
MR. ALEXANDER POLIKOFF and
MS. KATE E. POMPER,
6
On behalf of the Plaintiff;
7
8
9
10
KEVIN M. FORDE, LTD.
(111 West Washington Street
Suite 1100
312.641.1441), by
MR. KEVIN M. FORDE and
MR. KEVIN R. MALLOY,
11
On behalf of the Defendant.
12
13
14
15
16
17
18
19
20
21
REPORTED BY: ANGELA M. INGHAM, CSR, RPR
22
23
24
AMICUS COURT REPORTERS i INC.
312.641.3500
617 e460c.Oea4-218.8ba5.5f80c81 fOb70
00004 A25
Page 3
Ferguson v. Geo~ges
1
2
3
4
THE COURT: Good morning. Sorry to have kept
you waiting.
THE CLERK: Case No. 09 CH 43287, Ferguson vs.
Georges.
5
MR. FORDE: Good morning, your Honor, Kevin
6
Forde and Kevin Malloy on behalf of the defendant,
7
Georges.
8
9
10
11
MR. POLIKOFF: Alex Polikoff and Kate Pomper on
behalf of the plaintiff.
THE COURT: Good morning. This is your motion
to dismiss?
12
MR. FORDE: Yes, your Honor.
13
THE COURT: Is it all counts?
14
MR. FORDE: Pardon?
15
THE COURT: Is it all counts?
16
MR. FORDE: Yes, your Honor, and 1111 explain
17
it. A personal matter, your Honor, I have an
18
appointment that requires me to leave at 12: 15 .
19
THE COURT: We i 11 be done.
20
MR. FORDE: I would think so.
21
TaE COURT: I have read everything.
22
MR. FORDE: Mr. Polikoff and 1 were confident
23
24
of that.
THE COURT: I i m even more sorry to keep you so
312.641.3500
617 e460c.Oea4-4218.8ba5.5f80c81 fOb70
00005 A26
Page
4
Ferguson v. Geo_4es
1
2
3
late.
MR. FORDE: Oh, no, it won't be a problem.
Your Honor, yes, there's a 615 motion on
4
two of the three counts of this complaint; and
5
we i 11 rely on the briefs on that. We move to
6
dismiss the mandamus and a declaratory judgment
7
count. There is a still a count to enforce the
8
subpoena, so we have to get to the 619 motions in
9
any event, and I think that's what we want to
10
11
concentrate on today anyway.
We have moved to dismiss for basically
12
three separate reasons. The attorney/client
13
privilege applies here. Second, this plaintiff
14 heading a city department has no separate authority
15 to bring the case; and, third, there's no judicial
16 controversy here because this is basically a case
17 of The City vs. The City.
18 The only other introduction I would like
19 to make is to state that, before we got into this,
20 before Ms. Georges refused to produce the
21
documents, she not only used her own judgment and
22 that of her staff, but she consulted with two
23 outside experts who advised her that her
24 professional responsibilities were to not produce
312.641.3500
617 e460c.Oea4-4218.8ba5-5f80c81fOb 70
I§flnr¡~
A27
Page 5
Ferguson v. Geo~~es
1
the documents because the attorney/client privilege
2
clearly applied here. i would say with some degree
3
of confidence that our research demonstrates that
4
she and they were absolutely right.
5
We sent your Honor a few days ago, a week
6
or so ago, a decision which just came down from the
7
Seventh Circuit in Sandra TE vs. South Berwin
8
School District; and I'll refer to it as the Berwin
9
School District case. That's Seventh Circuit
10
11
decision of March 30, 2010.
We submit that as additional authority,
12
and it is absolutely right on point in many
13
respects. It's also significant in that we spent a
14
lot of time briefing what the Seventh Circuit meant
15
in their earlier opinion.
16
One of the coincidences is the earlier
17
opinion that we debated was written by Judge Diane
18
Wood, and she is on the panel in the most recent
19
case. So in a sense, there's even more force to
20
the explanation of the Seventh Circuit as to what
21
they meant in that grand jury case that the
22
plaintiff relied. The case is similar as the
23
Sidley case.
24
Sidley & Austin were conducting an internal
In that case, Scot t Lazar and
";¡,,~~.i;.'1E;,.,,..tij.:-....ii~e'c..~ti;,;r,;",';:r,AiS'i;;;,,~~õi~'¡¡.;~.;'J';~;,~~2'."..;;Jc,;¡;;~,,,,,":.7,;,,~i"","".o:S"';¡-;'!¿.;¡¡~;IO~""'l.;"~o¡C",~",Jiii;;".L,'~';~~~;::;"''';;-'"''~.'':,X"~~~"~r¡.,,,~,~''l;-l,,~:;;:i'~'¡;'~""-i'¡;"'!~":ii;;j,,";,~,"n.1;i0i;:¡,.,:'."'-:;""::i",":¡''';¡;:i)~,,:io,,;s""'''''~;:;
312.641.3500
617 e460c-Oea4-4218-8ba5-5f80c81 fOb70
ØOflfi7
A28
Page
6
Ferguson v. Geo~~es
,
1
investigation just like this situation. The
2
investigation couldn i t reveal criminal misconduct,
3
much more serious.
The issue were statements by interviews,
4
5
and on two pages of that opinion, Pages 15 and
6
16 - - and I believe we gave you the slip opinion,
7
but I see you have the Lexis. We do have the
8
Westlaw copy here, but I i m referring to the slip
9
opinion.
10
THE COURT: Okay. I can find that.
11
MR. FORDE: The Court says the plaintiff
12
suggests that shielding the contents of Sidley's
13
interview with School District personnel paid for
14
by the taxpayers and involving a matter of grave
15
public concern is contrary to public interest and
16
should not be permitted. That's exactly what
17
they i ve argued here.
18
The Seventh Circuit then goes on and
19
rej ects that argument and refers to their decision
20
in In Re: Witness before the Grand Jury, and then
21
they go on and say but we did not articulate in
22
that case a generally applicable exception for
23
communications between government employees and
24
taxpayer paid counsel.
.
:~~;:..'~S'¡""~'~èili..",;¡'''.:.'Wi'''-'' '".'''i;¡';;""''~~~~:'~'''''''.''ât;$~!,:¡~¡;¡¡.ii~,,l£,,
312.641.3500
617 e460c-Oea4-4218-8ba5-5f80c81 fOb 70
00008 A29
Page 7
\'
Ferguson v. Geo~des
1
The significance of the statement I just
the
2
emphasized is that they have been arguing
3
plaintiffs in this case have been arguing that we
,4
are seeking an exception, and the Seventh Circuit
5
there said no, that grand jury cases are an
6
exception.
7
And what i s really compelling about the
8
Seventh Circuit decision is not only what they hold
9
but why. They go on and they say this kind of
10 confidential communication between attorney and
11 client promotes the public interest by advising
12 clients to conform their conduct of the law and by
13 addressing legal concerns that may inhibit clients
14 from engaging in otherwise lawfully and socially
15
beneficial activities. When they said that, they
16 were citing a Supreme Court case that did not deal
17 with a public sector.
18 They then go on and explain the public
19 interest is best served when agencies of the
20 government have access to the confidential advice
21 of counsel regarding the legal consequences of
22 their past and present acti vi ties and how to
23
conform their future operations to the requirements
24
of the law.
312.641.3500
617 e4601)oea4-4218-8ba5-5f80C81 fOb70
- U 0 ($ f) 9 A30
Page
8
Ferguson v. Geo~jes
They then cite the sister circuit, the
1
2
Sixth Circuit, which incidentally earlier we had
3
cited a case in the Sixth Circuit which had said
4
that even in a grand jury case you can't get --
5
even a grand jury can't get confidential
6
communications between a city council member and
7
city council - - counsel, attorney for a city, and a
8
city employee.
But that case, Ross vs. The City of
9
10
.'
Memphis, the Court stated we see no reason that the
11 function is no longer served, that is, all of the
12 benefits to the administration of justice that
13 result from a vigorous application of the
14 attorney/client privilege simply because the
15 corporation is a municipality or, more broadly,
16 that the organization or agency is a government
17 entity.
18 Governments must not only follow the laws
19 but are under additional constitutional and ethical
20
obligations to their citizens. The privilege helps
21
ensure that conversations between municipal
22
officers and attorneys will be honest and complete.
23
In so doing, it encourages and facilitates the
24
fulfillment of these obligations.
to;M(~ir~'_i.~","\l=,~!'(,',~":,,O_';;'2;;;-i:,~,~~:~::,,:,j-~~"j;;;;¡¿¡,",:;!:""';'"~;;¡;-;""~"-,::""~;;'$-";,,~"~~~1=~::¡'è".,",F.1".;:.:*Æ:'~¡~,õt;¡t:~~-a","";;!¡.,,,~,,1~",~1¡",¡¡t:'¡"~'~'i,¡;;'.-'~--
312.641.3500
617 e460c-Oea4-4218-8ba5-5f80c81 fOb 70
o () 0 J 0 A31
Page 9
,r
Ferguson v. GeoièS
"
Those articulations of what i s going on
1
2
here and why it is so important dispose of every
3
argument that the Inspector General has raised
4
here.
And I would say if that Seventh Circuit
5
6
case, the City of Berwin case, if that had come
7
before someone in this building - - and it was a
8
case that could have been brought in the state
9
court - - a judge of this court, because they
10
were -- they, that is, the Seventh Circuit, was
11
applying federal law.
If this were before a judge in this
12
13
building, hel she would not be required to even look
14
at those cases because there is an Illinois case
15
that we cited and discussed that is right on point,
16
and that is the Sanitary District case.
And the Sanitary District case is not only
17
18
the controlling precedent for Illinois courts, but
19
the Sixth Circuit, the Seventh Circuit, and the
20
Second Circuit all in which we quoted at length,
21
especially the Second Circuit case in our earlier
22
brief, all explain why that i s not only the law but
23
good law.
24
\ .
So we would urge the Court to dismiss the
",,:';;~7,;:,,,i,¡!:,;;,:i,,,,'.:,j~;,';;l;'~:""'-;";',"',:;:;r;oic;:!:.:¡,!c;"l~",¡¡s.~'I"';~"ri¡~:S;,,,.s,';,,¡'¡i~~i,.;,:~"'_'':',.,'c1';:::",,,.'~"l.~:,","',,,'1,:i'C'"';:.~ ":¡i¡;.~,~~.,::,:,I"'C~:'''';''~'_
312.641.3500
617 e460c-Oea4-4218-8baS-Sf80c81 fOb 70
fJ 0 0 f 1 A32
Page 10
Ferguson v. Geo.~es
1
complaint because the claimed exception to the
2
at torney / client privilege in which the complaint is
3
based is not founded on sound principles of law.
4
There are two other reasons that I'll address very
5
briefly that your Honor should dismiss the case.
We have pointed out that the Inspector
6
7
General has no authority. Like any other
8
department, it has no authority to hire lawyers and
9
file lawsuits; and we cited Quillen (phonetic) and
10
other authorities on municipal law to that point.
Most of these arguments weren't even
11
12
addressed by the plaintiff, but I think your Honor
13
can see the common sense to it, that the head of
14
the Sanitary District can't go hire a lawyer and
15
file a lawsuit because he or she disagrees with the
16
interpretation of an ordinance by the City Council.
; -,
~.
And here, keep in mind, it wasn't even --
17
18
keep in mind here that the officer who initiated
19
these proceedings wasn't even the Inspector
20
General.
21
was no Inspector General when this case was
22
initiated, but that just emphasizes the point that
23
city officers cannot go filing lawsuits without
24
consent of the City Councilor some higher
It was a Deputy Inspector General. There
"'(i;":r"':"'êl;~ii':i,,,-c.;,,!.~:i:,::~.;:è''è,~~~y2;:~~~';tia-;~,;;¡.¡:,"';:-"~~õ.,.,"¡;~¡~.;n¡,:;¡~:;,-",~!",",*';¿"f~..",'~.:~::;,~'i;¡"..1ó~;.,-;'ii~-;.',,~~~;.~;,"ti:ii~""'""'-~;"'\.'¡:';'''''':LS\:.';~'!.i'¡¡'''~.¡t.,",!~,,,';~",7èi.0:~~ëi,,.:¡;:i..£~;e;'.D¡¡\';',.'¡..i;~.~.~'.i:;
312.641.3500
617 e460c-Oea4-21S-Sba5-5fSOcS1fOb 70
A33
i" n £\ JI _
Page 11
Ferguson v. Geò~~es
1
2
authority.
1
I.
THE COURT: Is the current -- Ferguson, what's
3
the first name of Ferguson? That i s the current
4
person, right?
I:
I:
5
MR. FORDE: Yes, your Honor.
6
MR. POLIKOFF: Joseph Ferguson.
7
THE COURT: Thank you.
8
MR. FORDE: Finally, the final point is, and it
9
I
I~
really follows from the previous point / we submit
10
that the Court has no jurisdiction to entertain the
11
case because / as we demonstrated, Mr. Ferguson is
12
bringing this case in his official capacity as a
13
city officer. That means it's the City of Chicago.
14
Ms. Georges was sued in her official capacity. So
15
she has been sued in effect as the City of Chicago.
16
So we have a case here of City vs. City. If the
17
case were called City vs. City / if that's how the
18
clerk had called it / you would say why is this
19
here.
20
I'm reminded of those commercials by
21
Coca-Cola if you remember them. When Coca-Cola
22
came out with a new drink and the traditional Coke
23
people in the commercial were going to the
24
corporate counsel and saying you've got to sue them
312.641.3500
617 e460c-Oea4-4218-8ba5-5f80-c81fOb 70
ß 0 sh -e ~
A34
Page 12
Ferguson v. Geo~~es
1
and stop them because this is hurting the sales of
2
our product, the traditional Coke; and the
3
corporate counsel was saying we can i t sue Coke;
4
we're Coke.
They're both the city. And that i s the
5
6
Tanner case. That's the basis for the Tanner case
7
that we cited.
So, your Honor, in conclusion, we think
8
9
Counts I and II should be dismissed based on 615.
10
We think all counts should be dismissed pursuant to
11
Section 619 and that this action to enforce the
12
subpoenas be dismissed with prej udice. That's all
13
I have to say, your Honor.
14
THE COURT: Thank you. Mr. Pol ikof f?
15
MR. POLIKOFF: Thank you, your Honor. I have
16
four points to make. Each one of them is brief.
The first point is that a trio of Illinois
17
18
Supreme Court decisions, Waste Management,
19
Consolidation Coal, and Birkett, collectively
20
establish the Illinois law that under the
21
circumstances of this case the attorney/client
22
privilege is unavailable to the Corporation
23
Counsel.
24
Your Honor will recall in Waste Management
312.641.3500
617 e460c-Oea4-4218.8ba5.5f80c81 fOb70
.n
il ..1 4 A35
U'i H t &
Page 13
Ferguson v. Ged~~es
1
the Supreme Court ruled that the common interest
2
doctrine and the duty of cooperation were separate,
3
quote, dispositive reasons for denying the claim of
4
attorney/client privilege in that case.
5
i
you as to why each of these reasons is not
7
similarly disposi ti ve here?
9
I,'
What does the Corporation Counsel offer
6
8
As to the common interest doctrine, the
Corporation Counsel i s only answer is that the
10
interests of the parties in this case are, quote,
11
directly adverse. That i s at the reply memorandum
12
Page 5 i but that, of course, is no answer at all,
13
for in Waste Management where the interest of the
14
parties -had also become directly adverse the
15
Supreme Court said that the insurance company IS
16
right to disclosure in the face of an
17
attorney/client privilege claim, quote, exists
18
irrespecti ve of the now adversarial nature of the
19
parties i relationship. That i s at Page 195 144
20
Illinois 2nd.
21
¡
The other dispositive ground in Waste
22
Management is the duty of cooperation which, by
23
eliminating any reasonable expectation of
24
confidentiality which, of course, is an essential
AMICUS COURT REPORTERS ,INC.
312.641.3500
617 e460c-Oea4-421S.Sba5-5fSOcS1fOb 70
00015 A36
Page 14
Ferguson v. Geo~des
1
element of a claim of at torney/ client privilege,
2
renders the privilege unavailable within the
3
compass of that duty of cooperation.
4
The Corporation Counsel i s response to this
5
Waste Management holding is that we're essentially
6
arguing, she says, that the ordinance in this case,
7
which is the instrument that creates the duty of
8
cooperation, was intended to eliminate an
9
attorney/client privilege that's enshrined in the
10
common law. That i s the argument she attributes to
11
us. Yet there is no evidence, she says, that the
12
city counsel intended to do that.
13
There are two problems with that response
~
14
of the Corporation Counsel. The first is that
15
Waste Management doesn't talk about evidence that
16
the parties to the contract in Waste Management
17
intended to eliminate the privilege. It holds
18
rather that the duty to cooperate by removing the
19
expectancy of confidentiality renders the privilege
20
unavailable, a holding that has nothing to do with
21
whether the parties there or, by extension, the
22
city counsel here in enacting the ordinance did or
23
did not, quote, intend anything about the
24
attorney/client privilege when they created the
:'
~,,,!:.;;,-",:i':i~f'j;~:;;~;;';;,~j61;:i.~~'.~.;'S~~~~~;¡~~¿''?~~~-.~,,j,~a-;;;¡~i&:'¡¡iE.7""~ti,."'~';;).tl¡1;;¡'l~,j;-E~iI;,W.b,,"_,\:J,¡~\'~~-'-".::1:..',-'.
312.641.3500
617 e460c-Oea4-218-8ba5-5f80c81 fOb 70
ß fl l' A37
h ~f. u~ 1 f~
Page 15
Ferguson v. Geo~~es
1
duty of cooperation. Under Waste Management, it 1 S
2
the duty of cooperation, not subjective intention,
3
that produce legal consequences.
The second problem with the Corporation
4
5
Counsel's response to the duty of cooperation point
6
is that the one case she cites for the availability
7
of the privilege to government lawyers in an
8
official investigation of government misconduct,
9
the case Mr. Forde just referred to as the Sanitary
10
District case, does not, in fact i involve or
11
discuss any such official investigation of a
12
government misconduct.
I'
The case is a disciplinary proceeding
13
14
initiated by the Chicago Bar Association in the
15
early 1930s in which the issue was whether
16
individual lawyers should or should not keep their
17
licenses. That's the case, 351 Illinois 206, In
18
Re: Information to Discipline Certain Attorneys and
19
so on.
20
Moreover, your Honor i whatever may have
21
been the Supreme Court's reasons 77 years ago for
22
respecting a claim of privilege by a defendant
23
lawyer in a disciplinary hearing, in subsequent
24
decades the Court has expressed several reasons for
;;ø~¡;:c",,-¡",;;'-"¡':7"',1t,~,-,;;; "..:""i:di';¿"'''''iÄ'.¡;:';.i0~~::,,,:;~git:J.'l,,.~~''~~''.~-&i~$;~iii;:;;?;'~~,¡,.,,;i-,~~.:~;¡.,;;u~.~~;;5;u~~~~-,-.,,,.,.¡;~.:ø.';"ir.;~t~:J~$";!!*,¿:~",,,~;,,~:;,~;~!:;¡:;.~Ji~~;;;"'\ã:;,,;:';Jr.k:;,~.,,æ;,",~e
AMICUS ~ COURT REPORTERS, INC.
312.641.3500
617 e460c.oea4-4218-8ba5.5f80C'R~b80
. ßßH17
Page 16
\
Ferguson v. GeòLges
1
limiting the availability of the attorney/client
2
privilege, and it's limited them.
I i ve already referred to two of them, the
3
4
Waste Management case, the common interest doctrine
5
and the duty of cooperation. Even before Waste
6
Management, however, in the Consolidation Coal case
7
cited in the memoranda, the Illinois Supreme
8
Court
that's at 89 Illinois 2nd 103. The
9 Illinois Supreme Court quoting Justice Cardozo on
10 the responsibility of judges considering
11 attorney/client questions to mediate between
12 competing social policies said that the recognition
13 of a privilege does not mean that it's without
14 conditions or exceptions; and the Court went on to
15 condemn the, quote, zone of silence, the large zone
16 of silence, that would result if appropriate
17 conditions and exceptions were ignored.
18
In denying the claim of privilege in that
19
case, the Consolidation Coal Court emphasized that
20
the privilege is an exception to the general duty
21
to disclose and that too broad an application of it
22
would be, quote, fundamentally incompatible with
23
Illinois public policy that places a high value on
24
the ultimate ascertainment of truth.
312.641.3500
617 e460C-Oea4-4218-8ba5.5f80C~~I§0 .
OfJf)1Q
Page 17
Ferguson v. Geoi~es
1 And following Consolidation Coal, the
2 Supreme Court's Birkett opinion elaborated on the
3 importance of this public policy, that is,
4 ascertaining the truth in the governmental context,
5 saying that governmental privileges are
6 particularly disfavored because they, quote,
7 threaten to undermine the public trust.
8 And in addi tion, as your Honor knows,
9 Birkett said not only that creating a new privilege
10 is a matter best deferred to the legislature but
11 that the same thing is true of extending an
12
existing privilege into a new area; and that, of
13
course, is exactly what we have here, an attempt to
14
extend an existing privilege into an area where it
15
has never before been applied which would hardly
16
be, I would add, as the Supreme Court has
17 admonished in both Consolidation Coal and Waste
18 Management strictly confining the attorney/client
19 privilege, quote, within its narrowest possible
20 limits.
21 i i m sure your Honor understands that we do
22 not contend, we do not contend that a government
23 body including the City of Chicago can never claim
24
the attorney/client privilege. We contend only
;:.;:~,,,",,:c~;,"'";"~"";'4,"~æli;.,"'.,l(~,'.¡i.,"...é'ó;¡¡,~,~;"..~'::.".'¡¡~~~"'~.,,,",~;...¡,,:'..'!...,=~~t;~\::.:,,.\,¡,r.;;,":.,,"i~i~'L"~;¡,,,~;;.-",:~"'~\'Ð;d":li;:.¡;!J~~~,,;:¡;~"~:.n;~'¡.w.¡!",;r.¡:,~;'""~\W.'i;,'.
312.641.3500
617 e460e-Oea4-4218-8ba5-5f80e81 fOb70
o 0 n -f r; A40
Page 18
Ferguson v. Geo".~es
1
that the privilege is not available and should not
2
for the first time in Illinois judicial history be
3
made available to government attorneys in the
4
context of an official investigation into possible
5
government misconduct.
There i S no Illinois precedent to support a
6
7
contrary view; but this trio of decisions, Waste
8
Management, Consolidation Coal, and Birkett,
9
collectively establish a body of Illinois law to
10
which in our view the Corporation Counsel has
11
supplied no principal response and which we think
12
is determinative of the attorney/client privilege
13
issue in this case. That's my first point.
14
THE COURT: I i m going to ask you a question on
In terms of your argument on
15
your first point.
16
Waste Management, don't you think that. the holding
17
in that case was a little more limited because of
18
the specific situation in which it was decided,
19
which is .the unique role that a lawyer serves when
20
he is hired by an insurance company to defend an
21
insured?
22
A unique role was well established years
23
before as he really in effect is representing two
24
parties, and he has an intrinsic conflict in there,
i;_~¡'L::"ôé~~.;.~;~;;".,~¡:;i:'r'¡~~"Q,-;,'j,,!;:"",;:,;,"¡;,,'t,"'.,""'jotc.¡;.c..""",r,~~l:.",'l;'¿¡"'r'~Î,,~¡;,;\,.;¡,1.i~''''';¡¿~':'):i"c'!~',3".~;;~..,''j",~¡'iii~:;,:.",~,,_CJk,i'J:~~~:¡~'''~li'~,",,~,~..;,.'Ç:/1$~t'i;¡~'¡";"';&-",'~¡i.'¡.;~;¡i.'~i')t
312.641.3500
617 e460c-Oea4-218-8ba5-5f80c81fOb70
0(/020 A41
Page 19
Ferguson v. Geo~~es
1
but he's got a duty to both parties. Don 1 t you
i
2
think the Waste Management decision is somewhat
3
limited because that was a unique situation?
I~
"
4
MR. POLIKOFF: Those were the facts in the
5
case, your Honor; but here, too, we have a lawyer,
6
the Corporation Counsel, representing all of the
7
city departments.
8
Management, we have a similarity in that regard.
9
In the context of Waste
Waste Management did not emphasize, didn 1 t
10
even talk about the specifics of the insurance
11
company lawyer representation context situation in
12
discussing the two doctrines upon which it relied.
13
In fact, it says at one point in its opinion it is
14
the commonality of interest that determines the
15
application of the common interest doctrine.
16
I'
We think the facts are different, as your
17
Honor i S question makes obvious. We think the
18
principles are the same. And when you add to those
19
principles the subsequent decisions, subsequent to
20
the so-called Sanitary District case, in the other
21
two cases I mentioned, the Consolidation Coal case
22
and the Birkett case, collectively these
23
pronouncements of the Supreme Court taken together
24
with the admonition repeated more than once that
AMICUS COURT REPORTERS i :INC.
312.641.3500
~ A42
617 e460c-Oea4-4218-8ba5-5f80c81 fOb 70
." (Hill? 1
Page 20
Ferguson v. Geò~~es
1
the attorney/client privilege should be narrowly
I:
2
confined within the maximum possible limits taken
I.;
3
together with the governmental context, we think
4
although facts are different in each case, of
5
course, we think the collective body of wisdom from
6
those three cases dictates the rule here,
7
especially the - - remember these are all Supreme
8
Court cases, and they say anytime you want to
9
extend an existing privilege, attorney/client
L
10
privilege, into a new area where it i S never before
11
been applied, judges should trot carefully.
My second point - - shall I move to that,
12
13
your Honor?
14
THE COURT: Please.
15
MR. POLIKOFF: - - is that apart from this in
16
our view controlling body of Illinois law there is
17
a body of law that Mr. Forde has referred to in the
18
form of a group of federal decisions that explores
19
the unique duty of government attorneys to
20
cooperate with an official investigation into
21
government misconduct rather than to frustrate it
22
by asserting the privilege.
Al though these cases aren It precedential
23
24
here, as we all recognize, they compellingly
=¡;""W'",~¡¡""il$'-".8Ni"
312.641.3500
617 e460c.oea4-4218.8ba5-5f80C~2t30
tHl
Ø1 ") ')
'VU~¡""t..
Page 21
Ferguson v. Geot':es
1 re-enforce in policy terms the result already
2 dictated by the Illinois law I referred to and the
3 public policy I referred to, particularly Birkett's
4 statement that governmental privileges, quote,
5 undermine the public trust.
6 The essential response of the Corporation
7 Counsel to these federal cases in the memoranda is
8 to argue that sound legal advice to government
9 officials can promote lawful conduct ¡but, of
10 course, the benefit of sound legal advice is
11
thoroughly discussed in those cases. Yet a
12
majority of them go the other way on the basis of
13
what I will summarize as the public's interest in
14
good government and transparency in government
15
affairs.
16
The most recent case from the Seventh
17
Circuit does not indicate a different approach.
18
Here you had the Sanitary - - excuse me, here you
19
had the school board hiring Scott Lazar as
20
essentially a private attorney to investigate and
21
help on its - - investigate the facts and help it
22
figure out what the right thing to do.
23
24
if Bill Clinton in the federal cases we
cited hired a private attorney, sure, he would have
312.641.3500
617 e460c-Oea4-4218-8baS-Sf80c81fOb 70
00023 A44
Page 22
Ferguson v. Geoi~es
1
had the benefit of the privilege. We did not have
2
in the South Berwin case an official body such as
3
an Inspector General investigating misconduct of
4
the school board. If that had been the case, it
5
would have been an entirely different --
I
I
6
THE COURT: Does it make any difference?
7
MR. POLIKOFF: Pardon me?
8
THE COURT: Does it make any difference?
9
MR. POLIKOFF: It makes a huge difference in my
10
opinion, your Honor. Government officials are
11
entitled to the benefit of the attorney/client
12
privilege if they hire attorneys who represent them
personally. As the cases indicate clearly, they
14 are not entitled to that benefit if they're using
13
15 official counsel.
16 In Bill Clinton's two cases, he used the
17 office of legal counsel, the government attorneys.
18
He was denied the attorney/client privilege. The
19
Stventh Circuit here, when Governor Ryan was using
20
the official government attorney, he was denied the
21
attorney/client privilege.
22
All of these cases recognize that if they
23
want to hire private counsel as they did in the
24
Scott Lazar case that's perfectly okay and they get
312.641.3500
617 e460c-Oea4-218-8ba5-5f80c81 fOb70
ßflH.)A
A45
Page 23
Ferguson v. Geo~~es
1 the benefit of the privilege.
2 The public policy, your Honor, embodied
3 here emphasizes as the Illinois Supreme Court did
4 the importance of transparency in government; and
5 the Court explicitly in the Birkett case deprecates
6 the, quote, chilling effect, which is the way they
7 talk about the benefit of attorney/client privilege
8
to government employees, deprecates. It says in
9
the absence of the privilege they i re not convinced
10
that the chilling effect that everybody worries
11
about would happen. That i s the Illinois Supreme
12
Court, I emphasize, saying that and putting down
13
the significance of it when we i re talking about
14
official government attorneys being hired by
15
government employees.
16
There i S mention, i'll say only briefly,
17
about the rules of professional responsibility.
18
They don't point in a di fferent direction. Supreme
19 Court Rule i. 6 on confidentiality explicitly states
20 that dtsclosure may be made for the purpose of
21 complying with law; and it further says that the
22 question of whether the law requires disclosure in
23
the face of an attorney/client privilege claim is,
24
quote, beyond the scope of these rules.
";:;~;EC'-"'";~",..'l~~;"""""".r.1:=7E-,~~,'r~Ji,,,~,,,,,¿O=-.:~~~~'''~$'¡),~~i¡~"-f,u,,ii.~"~!.~~,¡;o="
312.641.3500
617 e460c-Oea4-4218-8ba5-5f80c81fOb70
fl n. tÈ Ii' ~
A46
Page 24
Ferguson v. Geo:tges
\
1
So it i s obvious that an attorney/client
3
question before this Court isn i t answered by the
rules of professional conduct ¡rather, it i S for
4
this Court to determine as we believe the Illinois
5
law compels disclosure under the circumstances of
6
this case. So that's my second point, the body of
7
federal law pointing in the same direction.
2
-'1
~
l~
8
9
My third point is the IG has the capacity
to bring this suit.
-;¡
l~
ni
First, the ordinance
~
~
J;
~
~a
10
specifically contemplates that the Inspector
11
General shall enforce his own subpoena. Quote, the
12
Inspector General shall take no action to enforce
d
13
the subpoena for seven days. That i s what the
i~-
m
'"~
i
31
14
15
ordinance says, 2-56-040; and it's only by ignoring
J
¡~
~
-a
that language, your Honor, contrary to familiar
?
16
rules of statutory construction that it could be
17
said that the Inspector General lacks the capacity
18
to enforce his own subpoenas.
':1
19
~
:r
That i S almost a complete answer to the
~
20
question of capacity; but in addition, the Burnett
21
case which both parties have discussed in the
22
memoranda make it perfectly clear that he has
23
capacity to sue. Burnett is the case involving the
24
county public defender suing the board president
I~
i
;;';l'~~a~'-'"'.-£~)loli;rN~.,~~~;¡-';~,';.E"_",";~"":"~!!Ôg~.-~~:~,~,,-i¡i;¡;.~;."'\~"";...~...,"__:¡~ai"i"~".!;ii:;,,.:~:::li~;r,,~..~.;",i,,;x,3~"'i~~~-C.i~~~';;~~-;;""-.~.:,:..~'!'¡¡r,se-io'i
312.641.3500
617 e460C-Oea4-218-8ba5-5f80ClJ~bfO
f& ß là .q l~
Page 25
Ferguson v. GeOldes
1
over a lay-off of employees.
The Corporation Counsel's essential
2
3
response to Burnett is that that case involved, as
4
the Court said, the agency's, quote, right to
5
exist; but the Court there was speaking
6
hyperbolically plain. What was actually at issue
7
was laying off the employees. The literal
8
existence of the agency was not at stake in that
9
case; rather what was at stake was the ability of
10
the agency to do its job effectively. And that, of
11
course, is precisely what's at stake in this case,
12
too.
13
14
We're not talking about laying off
employees. We i re talking about whether to fashion
15 what is essentially a new tool that the city could
16 use to block or undermine official investigations
17 of its own misconduct.
18 Corporation Counsel also argues that in
19 Burnett the plaintiff agency was created by the
20 state legislature, whereas here the plaintiff
21 agency was created by a city legislature; but
22 that's a difference of fact, not of legal
23 principle.
24 Burnet t involved two agencies of the
"é:::,~::. .,.t¡l"~,,~~'.:.i',,:.:;~'.'i;' ,;:::,",~2.-1'...~","'" ;,,';''';:..~~1,;'it,,"ii~';~'U'i::''.:':i'~:;'''~~'''¡~'''~-:'''~'¿;~-,,,,;'''~¿.'~;I'Ü:::a.;l':i.d,:.,'¡;;:.';:';,'~~''.''''''.':;i~-;'.'.;.:..~.;¡,~:':'i~"'~;¡$i~~ú¡;~..'ö,'i~~~,:i~'i..~,'~j,;;'¡'.~~-~""o,¡;,~~c,;'i"~:jh::,.¡,~:;,,,~,',,~,,¡;~... "
312.641.3500
617 e460c-Oea4-4218-8ba5-5f80c81 fOb70
0"6')'7
A48
Page 26
Ferguson v. Geo~~s
1
county suing each other, just as other cases we've
2
cited involved agencies of the state suing each
3
other.
4
In the Environmental Protection Agency
5
case, state agencies, the court said, Supreme Court
6
again said, state agencies not infrequently do sue
7
each other, and a substantial body of such cases is
8
cited in Suburban Cook County.
9
Now the case allegedly to the contrary
10
that i s cited on this capacity to sue point is this
11
Tanner vs. Solomon case which Mr. Forde has just
12
referred to, but Tanner is not to the contrary,
13
your Honor.
14
In Tanner there was a three-person board
15
of fire and police commissioners with one of the
16
three suing the other two because he didn't like
17
losing a two-to-one vote.
18
In our case and in the others involving
19
one - - many of the others involving one part of a
20
single government suing another part, you have
21
separate agencies created by law, not one member of
22
a single board suing the other members.
23
In fact, Tanner itseit says, quote -- I'm
24 quoting from 58 Appellate 2nd at 137, quote, there
~..;i~i'o;E ...%.;:~'i-,~:;£;'~;¡...,e~~~l(~.'i':,:,~;¡',"-e,',::::'L~:¡"c:¡!";;'),';r.i~.;;;:~,i,¡;;ò7""!i;:~;:.:;~:~E"~'Xf"',.
AMICUS COUR~ REPORTERS, INC.
312.641.3500
617 e460c-Oef4-4218-8ba5-5f80c81fOb70
U 0 028 A49
l
Page 27
Ferguson v. Geo~des
1
are cases in which it has been held proper for one
2
agency of government to resort to the courts to
3
resol ve a controversy with another government
4
agency. In the instant case, continuing the quote i
5
one member of a governmental body is suing the
6
other members of that same body.
7
Now this case is clearly in the proper-to-
8
resort-to-the-courts category. We've got two
9
separate entities here.
Each one of them has
10
scores of employees, separate budgets. They have
11
independent powers and so on. They're created
12
separately by ordinance even though they 1 re both
13
parts of the same overall government.
14
Indeed, your Honor, the Inspector General
15
is set up as an unusually independent entity. For
16
instance, he 1 s appointed for a fixed term. This is
17
all under the ordinance. He can only be removed
18
for cause after a hearing before the City Council.
19
He has full authority, quoting the ordinance, over
20
the management and operations of his office and, of
21
course, the power to issue subpoenas that I've
22
already referred to. So that i s so much for the
23
capacity to sue.
24
The reply memorandum in this case, your
312.641.3500
617 e460C-Oea4¡f218-8ba5-5f80C81 fOb 70
fJ U 0 2 9 A50
Page 28
Ferguson v. Geor~s
1
Honor, also points out that in Burnett the Court
2
appointed an attorney to initiate the agency suit;
3
and Mr. Forde talks about the chaos that would
4
result if anybody could go off and hire his own
5
attorney. But in the Suburban Cook County case,
6
the sui t was ~ - the Supreme Court - - no, I gues s ~
7
that i s the Appellate Court. The suit was initiated
8
with outside counsel hired by the agency just as we ~
9
have done only later after
10
THE COURT: Which case?
11
MR. POLIKOFF: Suburban Cook County, your
12
~
f;
~
~
~~
Honor, 282 Appellate 3rd at 564.
13
Only after the suit had been filed by the
14
outside counsel who had been hired to do it by the
15
agency did the Court appoint that very counsel to
16
continue the litigation, a fact about which the
~
~
&
~
¡~
~
.~
~
17
Corporation Counsel's memorandum is completely
18
silent. A discussion of the hiring of the private
19
counsel is at Page 564 and 574, your Honor, of 282
20
Illinois Appellate 3rd.
~
-q
i
~
¡
;~
.ii
~
.~
~
21
(
I'm not sure that court appointment of a
!
22
counsel is necessary in this case. In both Burnett
23
and Suburban Cook County we have a statute that ,
24
authorized court appointment when the Attorney
,¡i¡"';""",;;,1'i.~-";,,.i,~~'" . _~~",,,~;k.s¡~~i:~~,""~~~'¿g£,~'C'~,,t,,"l¡(-.;"'U~~~~aa';~'i~~:'--"~~G;,¡;~.;~r~~.i:ir)oel;.:;X:¿¡;~~".'
312.641.3500
617 e460c-Oea4-4218.8ba5.5f80c81fOb 70
0003 nASI
Page 29
Ferguson v. Geo~~es
1
General or a State i s Attorney could not act, as the
2
Corporation Counsel cannot act here, which I'll
3
come to in a moment; but there are no such statute,
4
no similar statute applicable at the municipal
5
level. So I'm not sure any court appointment of
6
counsel is necessary.
7
And, by the way, counsel here is acting
8
pro bono. No question of fees is involved. And as
9
I read the cases i court appointment may be
10
desirable i even necessary i if somebody is going to
11
be asked to pay the fees i some governmental body;
12
but that's not the case here.
-13
But in any case i your Honor, you have
14
discretionary power to appoint counsel if you wish
15
to do so i just as they did in the Suburban Cook
16
County case.
17
What's plainly determinative in this
18
context is the impossibility of the Corporation
19
Counsel representing the Inspector General in this
20
matter i where as we have here in this case an
21
attorney is actually an opposing party i there is an
22
absolute ethical bar against representing both
23
sides as our memorandum makes clear which is noted
24
at the Suburban Cook County casei againi Page 564
.;¡~'O;¡ilJ!;r,,~r,"'¡-'¡':'J,"~!t;~'ei'¿~Õ/.''''~:;:z¡¡:;;:;~::''Û~~''"''::'"'~;i:;;-"'"""i:-\~"r.i(bÄi.,;...'w~~~.i;:;=-a:":'iß.~~~¡~i,-WJ-NF-.&l:W.¡¡~
312.641.3500
617e460c-Oea4-421S-Sba5-5fSOcS1fOb 70
(gif':f:i.f
A52
U' ¡~ H ./. ij
Page 30
Ferguson v. Geor~-es
1
and 574, where it thoroughly discusses this point
2
and says, your Honor - - I want to emphasize this
3
quote, the procedure followed in this case was a
4
proper one. That's at Page 574 to 76 of 282
5 Appellate 2nd.
6 The procedure that was proper in that case
7 is identical to the procedure the Inspector General
8 has followed here, namely, employing an attorney to
9 initiate suit, it being clear because of an
10 absolute ethical preclusion that the Corporation
11 Counsel cannot represent him in this case.
12 Your Honor will be happy to know I
13
finished my third point. Now my final point
14
quickly
15
THE COURT: Not at all, Mr. Polikoff.
16
MR. POLIKOFF: Thank you.
17
My last point has to do with the
18
contention that declaratory judgment and mandamus
19
don i t lie here. As the memoranda point out, we
20
think that contention flies directly in the face of
21
the authorities that we've cited.
22
If we i re right about the law, for example,
23
that government lawyers cannot properly claim the
24
attorney/client privilege in an official
312.641.3500
617 e460c-Oea4-4218-8ba5-5f80c81fOb 70
f~
l' ¿' . AS3
uì i' ~6 ~l ?
Page 31
Ferguson v. Geot,~¿s
1
investigation of government misconduct, then the
2
Corporation Counsel has no discretion not to comply
3
wi th the subpoena that 1 s been duly served on her.
4
And requiring performance of a non-discretionary
5
duty, of course, is precisely the traditional
6
office of the writ of mandamus.
I hate to keep citing the same case¡ but
7
8
in the Suburban Cook County case, again, they said
9
after this long, festering conflict that's
10
described in the case the complaint was proper and
11
it was primarily a mandamus action. And, of
12
course, both declaratory judgment and mandamus lie
13
even if' other relief is available, and memoranda of
14
the Corporation Counsel concede that the so-called
15
direct action to enforce the subpoena lies. They
16
don 1 t even attack that.
17
Okay.
18
19
20
permission to take
i would like with your Honor 1 s
a half a second now, maybe half
a minute, to quickly summarize my four points.
First, a group of Illinois Supreme Court
21
decisions, not one, not only Waste Management i but
22
Waste Management collectively with the Coal case i
23
Consolidation Coal i collectively with Birkett i you
24
look at those together. They collectively express
312.641.3500
617e460c-Oea4-4218-8ba5-5f80c81 fOb 70
00033 A54
Page 32
"
,
Ferguson v. Geot~s
1
the latest views of the Illinois Supreme Court on
2
the attorney/client issue, and we think that there
3
has been no effective response to those decisions,
4
and we think that those decisions articulate clear
5
doctrinal and strong public policy reasons for this
6
Court to continue to confine the attorney/client
7
privilege within the narrowest possible limits as
8
the Court has said repeatedly and not to violate
9
that inj unction of the Supreme Court by making the
10
privilege available where it has never before been
11
made available in Illinois judicial history.
12
That's a quick summary of my point NO.1.
13
me to state it so briefly.
14
It pains
Second point summary, the result dictated
15
by Illinois law and public policy is strongly
16
supported by the federal cases. This most recent
17
case doesn't change that one bit for the reason
18
that I stated.
19
Those cases emphasize the same point the
20
Illinois Supreme Court has itself emphasized,
21
namely, the importance of government transparency
22
and the public trust in a democratic society; and
23
the Illinois rules of professional conduct, as I've
24
pointed out, are entirely consistent with that
'Ú,.~~¡;"~:;~,a-;:;;:,;¡,,,;:,,r.~Ú,;.;,;¡O...,',¡¡~S"".~~~"-$,,ik;';..i";:"'""::'~~1Æ;uF~"";,,~;.,,;¡:;j'¡""~a:tt.;;"~,,;~,l$~"',:L"''''~;".i¡'';~~-i¡;';¡~'¡~:~~'''"''''¡ ""'~!"..-
312.641.3500
617 e460c-Oea4-4218-8ba5-5f80c81fOb70
00034 ASS
Page 33
Ferguson v. Geot~~s
1 public policy.
2 Thirdly, I made the point to your Honor
3 that under Illinois precedence the Inspector
4 General plainly has the capacity to bring this
5 suit; and it's absolutely clear without doubt,
6 without argument from the other side that the
7 Corporation Counsel has no authority under ethical
8 rules to represent the Inspector General in this
9 case because she's on the other side as a named
10 party.
11 And fourth and finally, the Inspector
12 General has utilized his capacity to proceed in a
correct procedural manner. He's got three counts.
13
14
We think declaratory judgment and mandamus clearly
15
lie and in any event the direct enforcement of the
16
subpoena i sn 't even attacked.
17
Your Honor, I thank you for your patience.
18
19
MR. FORDE: Very brief reply, your Honor. As
.20
to the attorney/client privilege and the Illinois
21
cases that Mr. Polikoff refers to, first of all,
23
Birkett has nothing to do with the attorney/client
pri vilege. They ask the Court in that case to
24
create a new privilege regarding certain
22
312.641.3500
617 e460c-Oea4-4218-8ba5-5f80c81 fOb 70
nU'.n
d),.~OJ
H ~t
.1, r: AS 6
Page 34
Ferguson v. Geoides
1
deliberations of a municipality, and the Supreme
2
Court said we don i t create new privileges; that's
3
for the legislature to do. And I don't think any
4
of us have any disagreement with that. But it has
5
nothing to do with attorney/client privilege.
I:
Consolidated Coal says don't apply the
6
7
privilege too broadly, but that 1 s just a nice
8
general statement. We i re not asking that the
9
privilege
be applied broadly. We're asking that it
10
be applied the way it has traditionally been
11
applied as the Seventh Circuit just explained.
12
The Sanitary District case, that did
13
involve an employee giving advice to an officer of
14
the Sanitary District, in fact, the president of
15
the district; and that was the advice that the
16
Court found could not be violated in that very
17
important prosecution.
18
And Waste Management, your Honor has
19
explained why the common interest doctrine doesn't
20
apply. They have no common interest here. In this
21
controversy, Ms. Georges never represented the
22
Inspector General. They're adverse; and, in fact,
23
gi ving these documents to the Inspector General, he
24
is outside the control group. That would result in
312.641.3500
617 e460c-Oea4-4218-8baS.Sf80c81fOb 70
OOO:l~
AS?
Page 35
,i
1
Ferguson v. Geori~ßs
a waiver of the privilege and makes these documents
2
available to the world, and I don't know why anyone
3
would propose that. So that disposes of the
4
attorney/client arguments. And insofar as the
5 federal law is concerned, we've discussed that
6 sufficiently.
7 In insofar as the authority to retain
8 counsel - - and I want to emphasize Ms. Georges and
9 i are not questioning the wisdom of the choice, but
10 it i s the point that a deputy can't go out hiring
11 lawyers and bringing their own cases.
12 In the Burnett case, the public defender
State 's Attorney and asked the State's
13 went to the
14
At torney to represent him. When he couldn't / he
15
went and filed the request with the Court for the
16
appointment of counsel. That's all I have / your
17
Honor.
18
19
MR. POLIKOFF: Can I jus t add one word --
20
THE COURT: No.
21
MR. POLIKOFF:
22
on the new point about making
it available to the world?
23
THE COURT: No.
24
MR. POLIKOFF: In our view, not so.
) lõ,"~";.!Tr~~~""~,¡;~lØ.h'~",-,;-a"-"--''''J..''''~- -ë.~O=:i'~:t;~~iR.;as::Mfo.:
312.641.3500
617 e460c-Oea4-4218-8ba5-5f80c81 fOb 70
00037 AS8
Page 36
Ferguson v. Geot~s
1
2
3
4
THE COURT: No would be the answer.
MR. POLIKOFF: Inspector General has got a duty
of confidentiality.
THE COURT: Okay. I'm ready to rule.
5
First of all, the Court must express that
6
it is very appreciative of the thorough exposition
7
of the issues that appeared in both briefs, all the
8
briefs of both sides and the arguments today before
9
the Court.
In contrast, of course, ruling here will
10
11
appear no doubt to be very spare; but the Court has
12
relied upon the exposition in the briefs and
13
incorporates all that in its ruling.
So I am going to grant the motion to
14
15
16
17
dismiss, and
I will dismiss the complaint with
prej udice for two reasons.
The first reason is it's very doubtful
18
that the municipal code provides authority for the
19
Inspector General to engage his own attorney.
20
Certainly there is no provision expressly saying so
21
in the municipal code, nor is there any provision
22
for which that authority can reasonably be applied.
23
24
I would also cite the EPA vs. Pollution
Control Board of the Supreme Court from 1977
312.641.3500
617 e460c-Oea4-4218-8baS-Sf80c81fOb70
if 0 038 A59
Page 37
Ferguson v. Geor~es
1 located at 69 Illinois 2nd 394 which certainly
2 would suggest that there is no such authority.
3 The Court concludes that Ms. Georges,
4 being the attorney for the city, it would be up to
5 her to determine that there was a conflict, which
6 there obviously is, and to seek authorization from
7 ci ty council to engage special counsel for the
8 Inspector General or perhaps, as Mr. Polikoff
9 suggests today, to ask the Court, citing Suburban
10 Cook County, to appoint special counsel.
11
The second reason and, I f m sure, the more
12 important reason I i m going to grant the motion to
13 dismiss is the Court concludes that the complaint
14 should be dismissed on its merits for the reasons
15 that as a matter of law the Inspector General
16 cannot seek the documents he seeks here because
17 they are protected by the attorney/client
18 privilege.
19 The Court agrees with the defendant that
20 Illinois law strongly supports the attorney/client
21 pri vilege and that that privilege has always been
22 available both to private clients and their private
23
attorneys and to government clients and their
24
government attorneys. The Court does not view
312.641.3500
617 e460c-Oea4-4218-8ba5-5f80c81 fOb70
00 n 3 ~
A60
Page 38
Ferguson v. GeoÌ.'~s
1 honoring the privilege in this case as an extension
2 of that privilege.
3 The serious public policy behind that
4 privilege has been set out in all the cases and in
5 the briefs here today, and I don't think I need to
6 recite them to explain that I am relying on it.
7 The 1932 Supreme Court Sanitary District
8 case did briefly acknowledge the existence of that
9
privilege in a government setting. Admittedly it
10
was not a holding in the case. There was no
11
discussion, but it flatly and clearly did
12 acknowledge the existence of the attorney/client
13 privilege in a government setting.
14 i also find the Seventh Circuit decision
15 in Sandra TE from 2009 to be very explicitly saying
16 that the attorney/client privilege for government
17 employees and their attorneys is operable in civil
18
cases. In turn, that case cites the Sixth Circuit
19
decision in Ross, R-o-s-s, vs. The City of Memphis
20 decided in 2005.
21 On that basis i the Court feels very
22 comfortable believing that the attorney/client
23 privilege exists here and that Ms. Georges has the
24 right to assert that and that the complaint must be
312.641.3500
617 e460c-Oea4-218-8ba5-5f80c81 fOb 70
0004:0 A61
Page 39
Ferguson v. Geo~.es
1 dismissed with prej udice.
2
MR. FORDE: Thank you, your Honor.
3
MR. POLIKOFF: Thank you.
4
(Which were all the proceedings
5
had in the above-entitled cause
6
at this time.)
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
~Y;-i~,;:'.;¡~t~-¡,ii~l"..~,.,,~-r,,e"," "-"":E~1~::'I'',.~:;¡'!.~..~'¿~1y,;'~""*,"~i4.~E:.'\.:.,ro'~''"",,¡~'t'"'~¡¡~'J;:'¡¿¡~I.~':.~
312.641.3500
617e460c-Oea4-4218-8ba5-5f80c81fOb70
0(1041 A62
Page 40
Ferguson v. Geo~ ~s
1
STATE OF ILLINOIS
SS:
2 COUNTY OF COOK
3 I, ANGELA M. INGHAM, a Notary Pub 1 i c
4 within and for the County of Cook, State of
5 Illinois, and a Certified Shorthand Reporter of
6 said state, do hereby certify that I reported in
7 shorthand the proceedings had at the taking of said
8 hearing and that the foregoing is a true, complete,
9 and correct transcript of my shorthand notes as
10 taken as aforesaid, and contains all the
11 proceedings given at said hearing.
12 In witness whereof, I have hereunto set my
13 hand and affixed my notarial seal this ~/l/ day of
14 -Mhft 2010.
15
~~ ~~~
18
Notary Public, Cook County, Illinois
19
C.S.R. license No. 084-002984
20
21
22
23
24
312.641.3500
617 e460c-Oea4-21S-Sba5-5fSOcS1fOb 70
00042 A63
Orter
5 i .
. ';
(
.~I
:::
r:
.:~.
. (2/24/05) CCG N002
IN THE CmCUI COURT OF COOK COUNTY, ILLINOIS
f~O~
~"Sd"l
No. 12 (tJ 1f3)2 i
v.
0JfCY:5
ORDER
¡1i'i C-i".H / C O,si'r) ft be !,,,r/, ~ clf;,, 'tt: /'0 lJ Y)
-¡ ,(r)¡?/Ys / ,-t C~r/l"'?;:/f qp/1-v( /l~ l4V;~ kç¡/,c(
q,IJ If)! h f rf- ~ (J f!¡; z; f( ~ f:
L P4Mil/./ c(Jt1f k,'n 1- 1$ Ár'sPlrl r; I//Wi fCJ~èt, l'"
K &'i~tl~ rf,fe~ À ~P' C~rlT
Att. No.: 6:i i~ri t.1 e.
.. /
ENTERED:
Name: ltvl, él1!kv
Att. for: 11 Ç.~nf: .
Dated:
¡lit?
Address: Iii. W. I1f'\io!' ik .
v
Oty/Stteip: ~ Pi 7;'- G '?¡ÇO 1.
Judge's
No.
Telepbone: 30/ 6 'f- /' 't
DOROTHY BROWN, CLERK OF THE CmCUI COURT OF COOK COUNTY, ILLINOIS
ORIGINAL-CURT FILE COO 1 2 Ö
A64
ORDINANCES INOLVED
Appointment powers and duties.
The mayor shall appoint, by and with the advice and consent of
the city council, all offcers of the city whose appointment is not
otherwise provided by the laws of this state or the provisions of
this code. Whenever a vacancy shall occur in any offce which by
law he is empowered to fill, the mayor shall, within 30 days
after the occurrence of such vacancy, communicate to the city
his appointee to such office.
council the name of
Supervisory authority - Administrative officer appointment, powers
and duties.
the
the
civil service act, he shall examine the grounds of all reasonable
complaints made against any of them and cause their violation
The mayor shall supervise the conduct of all the officers of
city, and, as to all who are exempt from the provisions of
of duty and other offenses, if any, to be promptly punished.
The mayor shall appoint, with the consent of the city council,
an officer to be known as the mayor's administrative officer who
the mayor. Such officer shall have
had at least five years' experience in responsible government or
private administrative positions as shall qualify him for the
duties of the office.
shall serve at the pleasure of
The mayor's administrative officer, subject to the direction
the mayor, shall supervise the administrative
management of all city departments, boards, commissions and
and control of
other city agencies established by this code and the laws of this
state.
In addition to such supervisory power, the mayor's
administrative officer may, in respect to any or all agencies
under his supervision, establish reporting procedures, require
the submission of progress reports, provide for the coordination
of the activities of such agencies, and shall perform such other
administrative and executive functions as may be delegated by
the mayor. He shall make periodic reports with such
recommendations as he deems appropriate to the mayor
concerning the administrative management of all departments,
A65
boards, commissions and agencies of
the city.
If the mayor's administrative officer is dismissed, he may,
within 30 days thereafter, report his objections to the dismissal
in writing to the city council, which report shall be printed in
the journal of proceedings of the city council for the meeting at
which such report is submitted to the city counciL.
Municipal Code of Chicago, IlL. § 2-4-030 (2011):
Ordinance enforcement authority.
The mayor, in addition to the duties, powers and functions
vested in him by statute as the chief executive officer of the city
and those specifically vested in him by the provisions of this
code, shall have authority to act, or to designate the officer who
shall act, in the enforcement of any ordinance of the city in all
cases where an ordinance fails to specify the officer who shall be
charged with the duty of enforcement.
Establishment-Composition.
There is hereby established an office of the municipal
government to be known as the office of inspector general, which
shall include an inspector general and such deputies, assistants
and other employees as may be provided in the annual
appropriation ordinance.
Inspector general - Appointment and authority.
The inspector general shall be appointed by the mayor, subject
to approval of the city council, and shall have responsibility for
the operation and management of the office of inspector general.
He shall be appointed for a term of
four years.
Inspector general - Powers and duties.
In addition to other powers conferred herein, the
inspector general shall have the following powers and duties:
(a) To receive and register complaints and information
concerning misconduct, inefficiency and waste within the city
government;
A66
(b) To investigate the performance of governmental
officers, employees, functions and programs, either in response
to complaint or on the inspector general's own initiative, in
order to detect and prevent misconduct, inefficiency and waste
within the programs and operations of the city government;
(c) To promote economy, efficiency, effectiveness and
integrity in the administration of the programs and operations
of the city government by reviewing programs, identifying any
ineffciencies, waste and potential for misconduct therein, and
recommending to the mayor and the city council policies and
methods for the elimination of inefficiencies and waste, and the
prevention of misconduct;
(d) To report to the mayor concerning results of
investigations undertaken by the office of inspector general;
(e) To request information related to an investigation
the city;
from any employee, officer, agent or licensee of
(f) To conduct public hearings, at his discretion, in the
cour(se) of an investigation hereunder;
(g) To administer oaths and to examine witnesses
under oath;
(h) To issue subpoenas to compel the attendance of
witnesses for purposes of examination and the production of
documents and other items for inspection and/or duplication.
Issuance of subpoenas shall be subject to the restrictions
contained in Section 2-56-040;
(i) To promulgate rules and regulations for the
conduct of investigations and public hearings consistent with
the requirements of due process of law and equal protection
under the law.
Municipal Code of Chicago, ILL. § 2-56-035 (2011):
Monitoring employment actions.
(a) Definitions. As used in this section:
"Hiring plan" means the hiring plan adopted by the City
of Chicago in 2007 and approved, on January 18, 2008, by the
Court in Shakman, et al. v. City of
Chicago, et aI, Case Number
69 C 2145 (N.D. ILL.), setting forth the governing principles for
city hiring and other employment actions concerning both
A67
internal and external applicants and candidates. As used in
this section, references to the hiring plan shall include the plan
as amended from time to time.
"Employment action(s)" includes, but is not limited to,
hiring, firing, promotion, demotion, lay-off, reinstatement,
re-employment, transfer, reclassification, overtime, and/or the
assignment of any job benefit.
(b) Powers and duties. The inspector general shall
have the authority to monitor employment actions under the
hiring plan and related policies and procedures. In addition, the
inspector general shall have the authority to investigate
allegations of non-compliance with the hiring plan and related
policies and procedures. Complaints concerning employment
actions and related policies and procedures, including claims of
unlawful political discrimination, shall be made to the inspector
general.
(c) Reporting on monitoring of employment actions.
Notwithstanding anything to the contrary, the inspector general
shall issue reports as required by the hiring plan and as
otherwise necessary to carry out his functions under this
section. These reports wil be considered public records and wil
be posted, with identifying information stricken, on the
inspector general's website.
The inspector general shall also issue quarterly and
annual reports that include statistics on the number of
escalations (as that term is defined in the hiring plan) newly
initiated, pending, closed with investigation, and closed without
investigation. The quarterly and annual reports shall also
include a description of the outcomes, findings,
recommendations, and actions taken on the recommendations of
any investigation of an escalation.
The inspector general shall redact the personal
identifying information prior to posting such reports on the
LG.O. website.
Subpoena issuance and contents - Objections.
The inspector general shall issue subpoenas only if (a) he
is conducting an investigation authorized by this chapter; and
(b) the investigation relates to misconduct within the programs
A68
and operation of the city government by any person described in
Section 2-56-050; and (c) the inspector general has a reasonable
belief
that such misconduct has occurred; and (d) the testimony
of the witness or the documents or items sought by the subpoena
are relevant to the investigation. A subpoena shall be served in
the same manner as subpoenas issued under the Rules of the
Illinois Supreme Court to compel appearance of a deponent, and
subject to the same witness and mileage fees fixed by law for
such subpoenas.
A subpoena issued under this chapter shall identify the
person to whom it is directed and the documents or other items
sought thereby, if any, and the date, time and place for the
appearance of the witness and production of the documents or
other items described in the subpoena. In no event shall the
date for examination or production be less than seven days after
service of the subpoena.
No later than the:time for appearance or production
required by the subpoena, the person to whom the subpoena is
directed may object to the subpoena, in whole or in part. The
objection shall be in writing, delivered to the inspector general,
and shall specify the grounds for the objection. For seven days
after receipt of a timely objection to a subpoena, the inspector
general shall take no action to enforce the subpoena or to
initiate prosecution of the person to whom the subpoena is
directed. During this seven-day period, the inspector general
shall consider the grounds for the objection and may attempt to
resolve the objection through negotiation with the person to
whom the subpoena is directed. The seven-day period may be
extended by the inspector general in order to allow completion of
any negotiations. The extension shall be in writing addressed to
the person to whom the subpoena is directed, and shall specify
the date on which the negotiation period will end. Negotiations
may include such matters as the scope of the subpoena and the
time, place and manner of response thereto. The filing of an
objection to a subpoena, and negotiations pursuant to an
objection, shall not constitute refusal to comply with the
subpoena, or interference with or obstruction of an
investigation.
Conduct of city officers, employees and other entities.
The powers and duties of the inspector general shall
extend to the conduct of the following: (a) except as limited in
A69
this section all elected and appointed officers of the city
government in the performance of their official duties; (b) except
as limited in this section, all employees of the city government
in the performance of their offcial duties; (c) all contractors and
subcontractors in the providing of goods or services to the city
pursuant to a contract; (d) business entities in seeking contracts
or certification of eligibility for city contracts; and (e) persons
seeking certification of eligibility for participation in any city
program. Notwithstanding anything to the contrary contained
herein, the office of inspector general shall have no power or
authority over any member of the city council, or any city
the
Municipal Code of Chicago. If the office of inspector general
council employee, as defined in Section 2-55-010 of
receives any complaint alleging misconduct, inefficiency or
waste against any member of the city council or any city council
the Municipal Code
of Chicago, the inspector general shall promptly transmit said
complaint to the legislative inspector general. Nothing in this
section shall preclude the inspector general from referring a
complaint or information concerning a member of the city
councilor any employee or staff person of any member of the city
employee, as defined in Section 2-55-010 of
councilor any employee or any staff person of any city council
committee to the appropriate federal, state or local law
enforcement authorities.
Investigation reports.
Upon conclusion of an investigation the inspector general
shall issue a summary report thereon. The report shall be filed
with the mayor, and may be filed with the head of each
department or other agency affected by or involved in the
investigation. The report shall include the following:
(a) A description of any complaints or other
information received by the inspector general pertinent to the
investigation;
(b) A description of any illegal conduct, inefficiencies
or waste observed or discovered in the course of the
investigation;
(c) Recommendations for correction of any ilegal
conduct, inefficiencies or waste described in the report;
(d) Such other information as the inspector general
A70
may deem relevant to the investigation or resulting
recommenda tions.
Response to recommendations by the inspector general.
If the inspector general issues a recommendation of discipline to
a department head or affected entity, that department head or
affected entity must respond to that recommendation within 30
days with a written response to the inspector general. This
response must include either (1) a description of any disciplinary
action the department head has taken with respect to the
employee in question or (2) a request for a 30-day extension of
the 30-day decision period if additional time is needed by the
department head to review the recommendation of discipline. If
the department head or affected entity did not take any
disciplinary action, or took a different disciplinary action than
that recommended by the inspector general, the department
head or affected entity must describe the different action and
explain the reasons for the different action in the written
response. This response must be submitted to the inspector
general within the 30-day decision period. The inspector
general may approve a request for an extension of this 30-day
decision period for a period of time not to exceed 30 days if
additional time is needed by the department head or affected
entity to review the recommendation of discipline.
Confidentiality of Informants - Exceptions.
The summary report shall not mention the name of any
informant, complainant, witness or person investigated, except
in the following instances:
(a) Where the copy of the report given to the head of
any department or agency recommends disciplinary action
against an employee of that agency;
(b) Where the copy of
the report given to the chief
procurement offcer makes recommendations concerning any
contractor, subcontractor, applicant for a contract, or person
seeking certification of eligibility for a contract;
(c) Where the copy of
the report given to the head of a
department or agency makes recommendations conceming a
person seeking certification of eligibility for a program
A71
administered by the department or agency;
(d) Where the copy given to the mayor recommends
disciplinary action against the head or any employee of any
executive department or agency.
Investigations not concluded within twelve months.
No later than the fifteenth day of January, April, July and
October of each year, the inspector general shall submit to the
the preceding month,
indicating (1) the number of current investigations pending for
mayor a report, accurate to the last day of
more than twelve months; (2) the general nature of the
allegations giving rise to each such investigation; and (3) the
reason(s) why each such investigation is stil pending.
Cooperation in investigations.
It shall be the duty of every offcer, employee,
department, agency, contractor, subcontractor and licensee of
the city, and every applicant for certification of eligibility for a
city contract or program, to cooperate with the inspector general
in any investigation or hearing undertaken pursuant to this
chapter. Each department's premises, equipment, personnel,
books, records and papers shall be made available as soon as
practicable to the inspector general. Every city contract and
city contract,
every bid, proposal, application or solicitation for a
and every application for certification of eligibility for a city
contract or program shall contain a statement that the person
understands and wil abide by all provisions of
this chapter.
Retaliation prohibited.
No person shall retaliate against, punish or penalize any other
person for complaining to, cooperating with or assisting the
inspector general in the performance of his office.
Files and reports confidential - Public statements authorized
when.
Except as otherwise provided herein, all investigatory
files and reports of the office of inspector general shall be
A72
confidential and shall not be divulged to any person or agency,
except to the United States Attorney, the Illinois Attorney
General or the State's Attorney of
Cook County, or as otherwise
provided in this chapter. The inspector general is authorized to
issue public statements in the following circumstances: (a) if an
investigation exonerates a person who is publicly known to have
been under investigation, where such person requests such a
statement; (b) subject to the conditions set forth in subsection
(b) of this section, if an investigation, audit or inspection
concerns inefficient or wasteful management; and (c) in a public
summary of each investigation resulting in sustained findings of
misconduct. The public summary shall briefly state, without
disclosing the name of any individual who was the subject of
such investigation, (i) the nature of the allegation or complaint;
(ii) the specific violations resulting in sustained findings; (iii)
the inspector general's recommendation for discipline or other
corrective measures; and (iv) the city's response to and final
decision on the inspector general's recommendation.
Quarterly reports to city counciL.
No later than the fifteenth day of January, April, July
and October of each year, the inspector general shall fie with
the city council a report, accurate as of the last day of the
preceding month, indicating: the number of investigations
the last report; the number of
investigations concluded since the last report; and the number of
initiated since the date of
investigations pending as of the reporting date. The report shall
also include the number of investigations of the conduct of
employees; the number of investigations of the conduct of
appointed officials; the number of investigations of the conduct
of elected offcials; the number of investigations of the conduct of
contractors, subcontractors and persons seeking city contracts;
the number of investigations of the cond~ct of persons seeking
certification of eligibility for city contracts or other city
programs; the number of investigations involving alleged
misconduct; the number of investigations involving alleged
waste or inefficiency.
Inspector general - Conditions for removal from offce.
The inspector general may be removed prior to the
expiration of his term only for cause and in accordance with the
provisions of this section. The mayor shall give written notice (a)
A73
to the city council of
and (b) to the inspector general of
his intent to remove the inspector general;
his intended
the cause of
removaL. Within ten days after receipt of the notice, the
inspector general may file with the city council a request for
hearing on the cause for removaL. If no such request is made
within ten days, the inspector general shall be deemed to have
resigned his office as of the tenth day after receipt of the notice
of intended removaL. If such a request is made, the city council
shall convene a hearing on the cause for removal of the inspector
general, at which the inspector general may appear, be
represented by counsel and be heard. The hearing shall be
convened within ten days after receipt of the request therefor
and conclude within 14 days thereafter. The mayor's notice of
intended removal shall constitute the charge against the
inspector generaL. Removal of the inspector general for cause
after the hearing shall require the affrmative vote of a majority
the city council then holding offce.
of
the members of
Obstructing or interfering with investigations - Penalty.
subpoena
issued by the inspector general, or otherwise knowingly
interfere with or obstruct an investigation authorized by this
chapter and conducted by an announced investigator of the
No person shall wilfully refuse to comply with a
office of inspector generaL. Any person who wilfully violates the
provisions of this section shall be subject to a fine of not less
than $300.00 and not more than $500.00 for each such offense,
or imprisonment for a period of not less than 30 days and not
more than six months, or both a fine and imprisonment. Each
day that a violation continues shall constitute a separate and
distinct offense. Actions seeking the imposition of a fine only
shall be filed as quasi-criminal actions subject to the provisions
of the Illinois Code of Civil Procedure, as amended. Actions
seeking incarceration, or incarceration and a fine, shall be filed
and prosecuted as misdemeanor actions under the procedure set
the Illinois Municipal Code, as
amended.
forth in Section 1-2-1.1 of
Political activities prohibited.
the
office of inspector general shall engage in any political activity
Neither the inspector general nor any employee of
as defined in Chapter 2-156 of
the Municipal Code.
A74
Violation - Penalty - Discharge or other discipline.
Any employee or appointed offcer of the city who violates
any provision of this chapter shall be subject to discharge (or
such other discipline as may be specified in an applicable
collective bargaining agreement) in addition to any other
penalty provided in this chapter.
Severability.
If any provision, clause, section, part or application of this
chapter to any person or circumstance is declared invalid by any
court of competent jurisdiction, such invalidity shall not affect,
impair or invalidate the remainder hereof or its application to
any other person or circumstance. It is hereby declared to be the
legislative intent of the city council that this chapter would have
been adopted had such invalid provision, clause, section, part or
application not been included herein. Nothing contained in this
chapter is intended otherwise to alter or amend the rights or
obligations of the city or any person affected by this ordinance.
Corporation counsel - Appointment - Powers and duties.
There is hereby created the offce of corporation counseL.
He shall be appointed by the mayor, by and with the advice and
the
the city council, and shall be the head of
consent of
department of law of the city.
The corporation counsel shall perform the following
duties:
(a) Superintend and, with his assistants and clerks,
conduct all the law business of the city;
(b) Appear for and protect the rights and interests of
the city in all actions, suits and proceedings brought by or
against it or any city offcer, board or department, including
actions for damages when brought against such. officer in his
official capacity;
(c) Appear for and protect the rights and interests of
the city in all actions, suits and proceedings brought against any
administrative law officer appointed pursuant to Chapter 2-14,
A75
including actions for damages, when brought against such
officer for performing duties for the city in his official capacity.
A lawyer representing an officer pursuant to this subsection (c)
may not during such period of representation appear before such
officer. The corporation counsel may promulgate such
additional rules as necessary to ensure the proper
administration of this subsection (c);
(d) Appear for and defend any member, offcer or
employee of the board of health, police department or fire
department who is sued personally for damages claimed in
consequence of any act or omission or neglect of his offcial
duties or in consequence of any act under color of authority or in
consequence of any alleged negligence while engaged in the
performance of such duties;
(e) Certify to the city comptroller all judgments
the date following the last day on
which appeal may be made, when in the opinion of the
rendered against the city as of
corporation counsel no further proceedings are proper; provided,
that when the corporation counsel is of the opinion that an
appeal is not justified, he may certify such judgment to the city
comptroller at any time, and provided further, that when a
judgment is rendered against any member of the police
department for injury to person or property resulting from the
performance of
his duties as a policeman, he shall certify such
judgment to the city comptroller for payment by the city, when,
in his opinion, such member of the police department has not
been guilty of wilful misconduct and the corporation counsel is
of the opinion that an appeal is not justified.
A76
TABLE OF CONTENTS OF THE RECORD ON APPEAL
Volume 1 of 2 - Common Law Record
Date
Page(s)
Document
Placita ...................................... C. 1
Nov. 4, 2009
Chancery Division Civil Cover Sheet. . . . . . . . . . . . . . C. 2
Nov. 4, 2009
Verified Complaint for Declaratory Judgment
and Other Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . C. 3-31
Nov. 4, 2009
Summons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. 32
Nov. 10, 2009
Mfidavit of
Dec. 8, 2009
Appearance ................................. C. 34
Dec. 9,2009
Notice of
Service ........................... C. 33
Motion and Defendant's
Unopposed Motion for Extension of Time
Dec. 14,2009
C.35-39
Motion and Plaintiffs Unopposed
Motion for Substitution of Successor
Notice of
in Office ................. -. . . . . . . . . . . . . .. C.40-42
Dec. 16,2009
Circuit Court Order. . . . . . . . . . . . . . . . . . . . . . . . . . . C. 43
Dec. 16, 2009
Order of
Dec. 23, 2009
Notice of
Presiding Judge, Chancery Division. . . . . . C. 44
Filing and Defendant's Motion
to Dismiss ............................... C. 45-47
Dec. 23,2009
Motion and Defendant's Motion for
Leave to File Instanter Memorandum in
Support of Motion to Dismiss in Excess of
Notice of
15 pages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. 48-7û
Dec. 23,2009
Notice of
Support of
Dec. 16, 2009
In
Motion to Dismiss. . . . . . . . . . . . . . .. C.71-90
Filing and Defendant's Memorandum
Circuit Court Order On Motion for
Extension of Time . . . . . . . . . . . . . . . . . . . . . . . . .. C. 90A
A77
Dec. 16,2009
Circuit Court Order on Motion for Substitution
of Successor in Offce ......................... C. 91
Dec. 30, 2009
Circuit Court Order. . . . . . . . . . . . . . . . . . . . . . . .. C.91A
Jan. 5,2010
Circuit Court Order. . . . . . . . . . . . . . . . . . . . . . . . . . . C. 92
Feb. 4, 2010
Plaintiffs Memorandum Opposing Motion to
Dismiss and Notice of Filing ............... C. 93- 109
Filing and Defendant's Reply in
Support of Motion to Dismiss . . . . . . . . . . . . . . . C. 110-26
Mar. 4, 2010
Notice of
Mar. 11,2010
Circuit Court Order. . . . . . .. . . . . . . . . . . . . . . . . . . C. 127
Apr. 21, 2010
Circuit Court Order. . . . . . . . . . . . . . . . . . . . . . . . . . C. 128
Apr. 27,2010
Plaintiffs Notice of Appeal. . . . . . . . . . . . . . . . . . . . C. 129
Apr. 30, 2010
Request for Preparation of Record
on Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. 130
Apr. 30, 2010
Letter to Dorothy Brown, Clerk òf the
Circuit Court of Cook County, Illinois ........ C. 131-32
June 24, 2010
Appellate Court Certification Page ............. C. 133
Volume 2 of 2 - Report of Proceedings
Date
Document
Page(s)
Placita ........................................ 1
Apr. 21,2010
Report of Proceedings, Motion to Dismiss,
before the Honorable Nancy J. Arnold, Judge of
the
Circuit Court of Cook County, Illinois,
County Department, Chancery Division .......... 2-53
May 20, 2010
Letter to Dorothy Brown, Clerk of the
Circuit Court of Cook County, Illinois . . . . . . . . . . . . . . 54
Apr. 30, 2010
Letter to Counsel for Plaintiff .................... 56
May 20, 2010
Notice of
Filing ................................ 57
A78
June 24, 2010
Appellate Court Certification Page ................ 58
A79
CERTIFICATE OF COMPLIACE
I hereby certify that this brief conforms with the requirements of Rules
this brief, excluding the pages containing the
points and authorities, the
Rule 341(c) certificate of compliance, the certificate of service, and those
under Rule 342(a), is 41 pages.
34l(a) and (b). The length of
Rule 341(d) cover, the Rule 34l(h)(1) statement of
matters to be appended to the brief
¡ia C~
J. RK POWELL, Attorney
CERTIFICATE OF SERVICE
I certify that I served the Brief and Appendix of Defendant-Appellant by
placing three copies in an envelope with sufficient postage affixed and
directed to the person named below, at the address indicated, and depositing
that envelope in a United States mail box in Chicago, Illinois, before 5:00 on
December 23,2011.
Person served:
Alexander Polikoff
Business and Professional People for the Public Interest
25 East Washington Street, Suite 1515
Chicago, IL 60602

Ferguson v. Patton Supreme Court Opening Brief

Transcription

Similar documents

Homecoming Packet 2015-2016 - Meeting Portal

83 Victoria St., Tillsonburg

35 Hale St., Tillsonburg

Lessons Learned Medlar Field at Lubrano Park

Project Description: In 2008 Hoyne Savings Bank realized that their

Eloxite Corporation

AutoDCR Application Case Study— Pune Municipal Corporation

ALWAYS - Sunset on Third Street

co rii - Paper