Petition — Scott v. United States
Supreme Court brief1978
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No. “8 “403
ye EVE
FILED
IN THE
: SEP 8 1978
Supreme Court of the United States
i BL ROBAK, JR., CLERK
OcronerR Term, 1978
>
WILLIAM J. SCOTT, In His Official
Capacity As Attorney General Of The
State Of Minois, Grand Jury
an Procee ding
Petitioner, (Subpoenas
vs. Duces Tecum)
Special April
UNITED STATES OF AMERICA, 1977 Session
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
WILLIAM J. SCOTT,
Attorney General of the State of Illinois,
160 North LaSalle Street, Suite 900,
Chicago, Illinois 60601 (312-793-3500),
Petitioner.
rep FE. HEerzoa,
Special Assistant Attorney General,
315 South Plymouth Court,
Chicago, Illinois 60604 (312-427-2737),
Ropert G. MpstTeen,
Davin G. LICHTENSTEIN,
Assistant Attorneys General,
160 North LaSalle Street, Suite 800,
Chicago, Illinois 60601 (312-793-5635),
Of Counsel.
Printed by Authority of the State of Illinois 365
INDEX
PaGE
eee EET ky cp awdance seks duvdsaxaeceus 2
ITI Fao ink Lon pees vkemse eels ob ee 2
QUESTIONS PRESENTED FOR REVIEW ........ 3
CONSTITUTIONAL AND STATUTORY
FROVIRIONS TNVORVED occ cc cee vel eccnaces 4
2 ¢ ey 4 | Hoe et ig. | 9! |)” a 5
REASONS FOR GRANTING THE WRIT ......... 8
CEI Sie, . oak Ciwincu wovehiudnescrea eee 18
rR ed cigs unui: Ow scat a alah ee RAR Oe Al
Opinion—United States Court of Appeals for the
Oy Se Eee eer ree Me Se ree Al
Order Denying Petition for Re-hearing en banc .... A10
Peateiet Court Minute Order .. .. 50.05 oc sek cscs All
District Court’s Oral Memorandum Opinion and Or-
der of Anti 4, 1978... 25... Jigeeetorhea kis A12
APPENDIX B (Constitutional and Statutory Provi-
Sg ag thy cay eas wee eke an Bl
United States Constitution .................68-. Bl
Himotse Constitution of 1970 . ; ... ...6.6 fees cen ss B2
Statutes of the United States ................... B2
ENERO ET ME SEP, eT B6
ii
CITATIONS
CasEs: PaGE
Alfred Knopf, Inc. v. Colby, 509 F. 2d 1362 (4th Cir.
ee Seah ya. Ro neta eae pokes ees 17
Bowles v. Gantner & Mattern Co., 64 F. Supp. 383 (N.D.
ch aaa ing yuh de deen Ao wkn toe 13
Continental Bank and Trust Co. v. Brandon, 297 F. 2d
ee Ne ices Fp aly ve a> bed ednne aves 17
County of Pendleton v. Amy, 80 U.S. 297, 20 L. Ed. 579
CR Oe. a pW ald ca als RbOR AER Amo BS 17
Delaney v. Regulators of the City of Philadelphia, 1
NG Fk, Ve LO AS Sk bin Se hie ct a ee oe we 12
Goldberg v. Truck Drivers Local Union No. 299, 293 F.
ee arr rr ee er rere a 17
Hull vy. Continental Illinois National Bank and Trust
Coc, Fit Fea Bie (7 te Cie. TORR) onic cas tndewe de 17
Kephart v. Richardson, 505 F. 2d 1085 (3rd Cir. 1974) 17
Nixon v. Warner Communications, Inc., —— U.S. ——,
55 L. Ed. 2d 570, 98 S. Ct. 13806 (1978) ........ 11, 12, 14
Olmstead v. United States, 277 U.S. 438, 72 L. Ed. 944,
ee ORT AMEE os ccd ay ce raswrsunr te bslenen eee 8
United States ex rel. Adamantides v. Neely, 191 F. 2d
Bn Cree Oe: BOD os Skis Ube neh cea Chk Kt aene aes 17
United States v. Iozia, 13 F.R.D. 335 (S.D.N.Y. 1952) 14
United States v. Nixon, 418 U.S. 683, 41 L. Ed. 2d 1039,
Oa PESTO oo cks ob annecddaskassevbex eas 14
Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S.
Ce SEE asso eW er aiee eh see iirs bh ben deletes 8, 12
ae
iii
CONSTITUTIONAL PROVISIONS:
United States Constitution, Article ITI Section 2 ..... 13
United States Constitution, Tenth Amendment ....... 10
Illinois Constitution of 1970, Article V Section1..... 9
Illinois Constitution of 1970, Article V Section 15 ..... 9
Unitep States Stratutes:
Federal Rules of Criminal Procedure, Rule 17(c) ....6, 14
Federal Rules of Criminal Procedure, Rule 27 ....... 10, 11
Federal Rules of Civil Procedure, Rule 44 ........... 10, 11
Federal Rules of Evidence, Rule 902 ............... 10, 11
DP UCR OCHO ATOR sinc epee eb claVhawcans 10, 11
Iuuinois STATuTEs:
i. Rev. Stat. (1977) oh. 16-8 BOBS . omit zeca css 9
Ill. Rev. Stat. 1977, ch. 116, Sections 43.4 - 43.28 ..9, 10, 11
IN THE =
Supreme Court of the United States
Ocroser Term, 1978
sy
WILLIAM J. SCOTT, In His Official
Capacity As Attorney General Of The
State Of Illinois, ae rene
Proceeding
Petitioner, (Subpoenas
vs. Duces Tecum)
Special April
UNITED STATES OF AMERICA, 1977 Session
Respondent.
J
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
The petitioner, William J. Scott, in his official capacity
as Attorney General of the State of Illinois, respectfully
prays that a writ of certiorari issue to review the judgment
and opinion of the United States Court of Appeals for the
Seventh Circuit entered in this proceeding on July 11,
1978.
OPINIONS BELOW
The opinion of the Court of Appeals, not yet reported,
appears in Appendix A hereto at pages Al - A9. The
opinion of the District Court, which is not reported, appears
in Appendix A hereto at pages A 11 - A 28.
JURISDICTION
The judgment of the Court of Appeals was entered on
July 11, 1978 (A1-A9). A timely petition for rehearing en
banc was denied on August 11, 1978 (A10), and this petition
was filed within 30 days of that date. This Court’s jurisdic-
tion is invoked under 28 U.S.C., § 1254(1).
QUESTIONS PRESENTED FOR REVIEW
1. Whether the Federal Government, through its instru-
mentalities, the United States Attorney, the Grand Jury
and the District Court, did, in contravention of the United
States Constitution, wrongfully exercise the power of the
United States in an instance where a use of that power
was unnecessary to the accomplishment of any legitimate
federal purpose?
2. Whether principles of Federalism prohibit the use of
federal subpoenas which infringe upon the sovereignty
of a State when the use of those subpoenas is unnecessary
to accomplish a legitimate federal purpose?
3. Whether, in view of the directory mandate of the
Illinois State Records Act, under the provisions of Rule
17(c) of the Federal Rules of Criminal Procedure as inter-
preted by this Court, as well as under the facts of this case,
it was reversible error and an abuse of the federal judicial
power for the Court of Appeals to affirm the District
Court’s judgment denying petitioner’s Motion to Quash?
4. Whether, in view of the ready availability of State
publie records sought by the United States Attorney and
a Federal Grand Jury, the District Court was presented
with an actual, justiciab'e controversy within the purview
of Article II], Section 2, of the United States Constitution,
such as is necessary to validate any exercise of the federal
judicial power, including the power to sustain Court
process?
5. Whether an improper exercise of the federal judicial
power may be validated upon a presumption, unsupported
by a factual showing in the court record, that a constitu-
tional officer of State government will fail to faithfully
discharge and execute the duties vested in him by the Con-
stitution, statutes and law?
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED*
United States Constitution
Article 3, Section 2
10th Amendment
Illinois Constitution of 1970
Article V, Section 1
Article V, Section 15
Statutes of the United States
Federal Rules of Criminal Procedure, Rule 17(¢)
Federal Rules of Criminal Procedure, Rule 27
Federal Rules of Civil Procedure, Rule 44(a) (1)
Federal Rules of Evidence, Rule 902
28 U.S.C.A. § 1739
Illinois Statutes
Ill. Rev. Stat. (1977) Ch. 15 § 303-2
Illinois State Records Act, Ill. Rev. Stat. 1977,
Ch. 116, §§ 43.4 - 43.28
*The Constitutional and statutory provisions recited
herein are set forth in Appendix B of this Petition.
ne nema
STATEMENT OF THE CASE
The present petition is filed by William J. Seott in his
official capacity as Attorney General of the State of TIli-
nois, While it involves federal grand jury subpoenas duces
tecum for State Records, he is neither a witness nor a
party to whom the challenged subpoenas were directed.
No personal rights or privileges of petitioner are or ever
have been asserted in this cause which relates solely to the
rights of a sovereign state, its people, officials and em-
ployees.
On Friday, March 17, 1978, and Monday, March 20, 1978,
a number of subpoenas duces tecum, which were issued from
the Clerk of the United States District Court for the
Northern District of Illinois, were served upon various
employees of the State of Illinois who work in the office of
the Illinois Attorney General, All of those subpoenas were
addressed to the State employees at their official place of
business; they commanded these State employees to appear
before the Grand Jury on March 22, 1978, and to produce
at that time a multitude of official records of the State
of Illinois which, under the statutes of Illinois, may be
inspected and copied at the office of the Attorney General;
that office, under State law is required to maintain them.
Also included in the subpoenas were other materials for
which the use of subpoenas is not challenged,
The broad sweep and huge volume of the State Records
demanded by those subpoenas is readily apparent from
even a cursory examination of them. For example, they de-
mand, among other things: records of all long distance tele-
phone calls placed by the office of the Attorney General
(including but not limited to bilis, charges, identification of
numbers called or called from, ete.) for a nine year period;
6
all records reflecting the identities and addresses of, and
compensation paid to Special Assistant Attorneys General
for a nine year period; listing of all employees of the
Attorney General’s Office (including salary, position and
dates of employment) for an eight year period; and all
diaries, appointinent books, travel information, telephone
directories or other compilations of telephone numbers
maintained by, for, or in connection with the activities
of the Attorney General for a nine year period,
Petitioner, in his official eapacity as Attorney General
of the State of Ilinois, moved the District Court, pursuant
to Rule 17(c) of the Federal Rules of Criminal Procedure,
to quesh or, in the alternative, substantially modify these
subp enas, Although none of the challenged subpoenas was
directed to him, petitioner, in his official capacity, brought
a third party challenge asserting the rights of the State
of Illinois, its people, officials and employees because un-
der the Constitution and the pertinent statutes of the State
of Illinois he, as the Attorney General of [llinois, is the
only party legally authorized to represent these interests
and has the responsibility and duty to do so.
Briefs were filed and argument was heard on an expe-
dited schedude. At the arguments the United States At-
torney recognized that the majority of the documents
sought by the subpoenas (all of the documents to which
Petitioner’s challenge is directed) were available for in-
spection and copying under the Hlinois Records Aet [T'ran-
script of Proceedings (hereinafter Ty.), 3-22-78 pp. 30, 31].
He conceded that, with respect to these State Records *'.. .
perhaps the subpoenas were unnecessary ...’’ (/d, at p. 31),
and stated that there was no constitutional issue if these
documents could be had under State law (Jd, at pp. 34-35).
The District Court suggested that the United States
Attorney might withdraw the subpoenas and obtain the
oe Sw ere ees
-
‘
information sought by him in conformance with the Illinois
Statutes. The Court noted that if this were done there
would be no issue as to them, However, the Court also
noted that if the United States Attorney desired to use a
subpoena, rather than proceed in conformance with State
Law, then the use of the subpoena power was put at issue
(7'r, 3-22-78 pp. 34-35).
On April 5, 1978, the District Court denied Petitioner’s
motion to quash and allowed in part the motion to modify
the subpoenas, The Court entered a minute order (Record
Item 12, A5) which showed that its Memorandum Opinion
was embodied in the Transcript of Proceedings for April 5,
1978,
Petitioner immediately filed a Notice of Appeal, had the
record certified and docketed, and moved for an expedited
schedule for briefs and argument. Although the District
Court had stated that if an appeal were perfected it would
stay the subpoenas, upon the motion of the United States
Attorney it denied a stay. On April 13, 1978, the Court of
Appeals, upon a vote of two to one, denied petitioner's
Motion for Stay. An application for stay was made to this
Court and denied on April 14, 1978,
Although the subpoenas were complied with upon the
denial of petitioner’s application for a stay, the cause re-
mained and continues to remain vital because the grand
jury still possesses over twenty ‘‘bankers’ boxes’’ (11”
high X 15” wide X 24’ long) filled with State Reeords from
the Illinois Attorney General’s Office plus State Records
similarly obtained from other State agencies, and because
of the explicit statement of the United States Attorney that
the procedure of issuing subpoenas to State employees that
command the production of State Records, which State law
requires to be maintained by various State agencies, will
continue (A3),
8
On July 11, 1978, the Court of Appeals affirmed the
Distriet Court Judgment (A1-A9) and on August 11, 1978,
Petitioner's timely filed Petition for Rehearing was denied
(A10),
REASONS FOR GRANTING THE WRIT
The present case, which involves the relationship between
the federal government and the states, albeit in a novel
setting, not heretofore determined by this Court, has been
decided by the lower courts in a manner which is destrue-
tive of the basic tenets of that relationship, as declared and
visualized in the Federal Constitution and interpreted by
this Court, The core question of the controversy concerns the
principle of Federalism as it finds expression in the neces-
sary sensitivity which the federal government must display
toward the legitimate interests of each state forming part
‘of this Union. In the case at bar, the federal government,
taking the stance of a prosecutor, has acted in callous dis-
regard of that sensitivity standard laid down by this Court
in Younger v. Harris, 401 U.S. 87, 27 L. Md 2d 669, 91S. Ct.
746 (1971), and the various cases following and refining
the Younger concept.
Many years ago, Mr. Justice Holmes declared that ‘‘ [nJo
distinetion can be taken between the Government as prose-
cutor and the Government as judge.” (Olinstead v. United
States, 277 U.S. 438 at 470 (1928)). Yet, in the instant case,
such improper distinction has been taken by the lower
courts, It is respectfully submitted that this erroneous
distinction ought to be corrected by this Court since it af-
fects not only the traditional aspects of the sovereignty of
the State of Llinois, but also that of all other states of the
Union.
The gravamen of the challenge presented is abuse of
judicial process—an unreasonable and wrongful insistence
—
9
on the part of the federal government to use court process
where none has been necessary, thereby leading to a need-
less confrontation with a sovereign state of this Federal
Union, The challenge does not relate to the ultimate reach
of federal power where it is needed to accomplish a legiti-
mate governmental purpose, but rather to the unnecessary
use and effectuation of that power in a system which honors
the concept of dual sovereignties. No personal rights are as-
serted herein nor made the subject of these proceedings ;
rather, this case raises issues relating solely to the rights
of the State of Ilinois «= a sovereign,
The United States Attorney, ina grand jury investigation
allegedly against the Attorney General of the State of Thli-
nois for possible income tax violations, caused subpoenas
duces tecum to be issued against various State employees
for the production of official State records, although these
records were readily available under the pertinent pro-
visions of the Hlinois State Records Act. Illinois law re-
quires that its records must be maintained by the various
State offices to which they pertain and may be viewed and
photocopied at those offices. (Illinois Constitution (1970)
Article V, §§$ 1, 15; Tl. Rev. Stat. (1977), ch. 116, §§ 43.6,
43.7). The removal of over twenty ‘bankers’ boxes’? (11”
high x 15” wide x 24” long) filled with State Reeords—most
of them originals—-from the Office of the State’s chief legal
officer, plus the removal of additional State Records simi-
larly subpoenaed from other State Officers and Agencies,
obviously interfered and continues to interfere with the or-
derly conduct of the State’s business. For example, the re-
moval of these State Records from their proper depositories
is impairing the Illinois Auditor General who is currently
attenspting to conduct an audit which is required by III, Rev.
Stat. (1977), ch. 15, § 308-2.
10
The United States Attorney conceded in open court that
the State Records subpoenaed were available for inspection
and copying under the Illinois Records Act (7'r. 3-22-78, pp.
30, 31). Copies of the State Reeords involved herein are
admissible in any federal court (Med. Rules Cr. Proe. Rule
27,18 U.S.C.A.; Fed. Rules Civ. Proe, Rule 44, 28 U.S.C.A.;
Fed. Rules Evid. Rule 902, 28 U.S.CLA.; 28 U.S.CLA,
§ 1739). Yet depite these facts the United States Attorney
insisted upon the maintenance of the subpoenas.
The Court of Appeals, in sanctioning the subpoenas,
noted that ‘*... it may have been more seemly for the United
States Attorney to seek to use the State Reeords Act before
resorting to a subpoena...” (A8), but opined that failure
to quash the subpoenas was not an abuse of discretion be-
cause of‘... the necessity that some sensitivities be impli-
eated in almost any grand jury investigation.”
The Opinion of the Court of Appeals misapprehends the
basic principle of Federalism and its application to the in-
stant case. The “sensitivities ... implicated” in the present
ease are not those of individuals, but rather the sensitivi-
ties which the federal government, under the principle of
Federalism, must display and observe vis-a-vis the legiti-
mate sovereign interests of the State. That display of sen-
sitivity is not a matter of discretion, as wrongly considered
by the Court of Appeals; rather, it is a matter of constitu-
tional mandate which the duality of the federal-state sove-
reignty imposes upon, and exacts from, the federal gov-
ernment. United States Constitution, Tenth Amendment.
The State of Llinois, by enacting a valid statute designed
to safeguard, regulate and afford speedy access to its offi-
cial records, has acted within the legitimate sphere of its
sovereign rights, which must be respected by the federal
government, This holds particularly true in the present
ower nee eer
11
on
case since the interests and goals of the federal government
in securing access to the information contained in the
State’s official reeords are in no way impaired or hindered
by complying with the provisions of the Illinois Reeords
Act. In short, the grand jury’s search for the truth will not
be impeded. by the use of the Illinois Records Act, When
the dearth of federal need for these subpoenas is counter-
poised against the legitimate right of the sovereign to its
own records, the seales are obviously weighted heavily
in favor of the State’s interest. Under the posture of the
present case, to insist upon the maintaining and upholding
of the unnecessary subpoenas can be categorized only as
an unwarranted and crass interference with the sovereign
rights of the State of Illinois.
The Court of Appeals misapprehended the legal distine-
tion between State Records and private records and over-
looked the federal statutes which recognize this distinetion.
Unlike copies of private records, as previously mentioned,
copies of State Reeords are admissible in any federal court.
(Fed. Rules Cr. Proce, Rule 27, 18 U.S.C.A.; Fed Rules Civ.
Proc, Rule 44, 28 U.S.C.A.; Fed Rules Evid, Rule 902, 28
U.S.C.A.; 28 U.S.C.A, § 1739),
This Court held in the recent case of Nixon v. Warner
Communications, Inc., —— U.S. ——, 55 L. Ed. 2d 570, 98
S. Ct. 1306 (1978), that when the legislature established
a procedure for obtaining materials belonging to the Gov-
ernment, the materials had to be obtained, not by court or-
der, but by following the statutory procedure. Although the
records act involved in that case was a federal statute, this
Court, significantly, citing as an example the very same IIli-
nois Record Act involved in the instant case, stated:
It is clear that the courts of this country recognize a
general right to inspect and copy public records and
documents ... (Jd. at 55 L. Ed. 2d 579).
12
The legal principle, although appearing in the Warner Com-
munications case in a novel form, has been recognized since
the early years of our nationhood. Thus, in Delaney v.
Regulators of the City of Philadelphia, 1 Yeates (P.A.)
403 (1794), the court held that a custodian of public docu-
ments will not be required to bring them into court under a
subpoena duces tecum where official copies can be had.
Considering this principle, the contrived distinction which
the Court of Appeals has attempted to draw is without le-
gal significance.
Under these circumstances, it is apparent that the United
States Attorney, as well as the lower courts sanctioning
his actions, have violated the most basie principle of Fed-
eralism, namely, that ‘‘the National Government, anxious
though it may be to vindicate and protect federal rights
and federal interests, always endeavors to do so in ways that
will not unduly interfere with the legitimate activities of
the States”. (Younger v. Harris, 401 U.S. 37, 27 L. Kd. 2d
669 at 676, 91 S. Ct. 746 (1971) ). Here there has been such
an undue and unnecessary interference with the legitimate
activities of the State. That needless interference, which has
left the State of Illinois formally intact but functionally
impaired, has been exacerbated by the fact that the State
employees, against whom the federal subpoenas for the
production of the State records were directed, have been
subjected to a Hobson's choice; production of the State
records in compliance with the federal subpoenas has been
in direct contravention of the removal proscription of the
State Records Act which subjects each person acting in
violation of those provisions to criminal punishment. To
force a person, and especially a State employee, by using
the totally unnecessary federal subpoena process, to act
in contravention of a valid State statute, is not only morally
wrong, but also, and more importantly, under the cir-
cumstances prevailing here, constitutionally impermissible.
13
Significantly, the United States Attorney, by ignoring
the means and methods of a clear State statute, has not
only conjured up a completely unnecessary federal-state
controntation, but has also imposed upon the State the
costs incident to the production of these materials. By
subjecting the State to those costs relating to a federal
grand jury investigation conducted against an individual,
the United States Attorney has in fact imposed a tax upon
the State—an imposition constitutionally prohibited and
totally unnecessary.
Additionally, there is grave doubt whether the subpoena
process utilized in the present case may be considered to
be constitutionally permissible from a jurisdictional point
of view. Subpoenas are judicial orders; they are mandates
issued under the seal of the District Court by the Clerk
thereof. Bowles v. Gantner & Mattern Co., 64 F. Supp. 383
(N.D. Cal. 1946). In order to be valid as judicial commands,
the court issuing them must have proper jurisdiction. Under
Article Ill, Section 2, of the United States Constitution,
the jurisdiction of federal courts is limited, among other
things, ‘‘to controversies to which the United States shall
he a party.”’
Since the United States Attorney acknowledged that the
federal purpose (access to the information sought) could
have been accomplished without resort to the subpoena
process, it is highly doubtful whether there was a “con-
troversy’’ in the constitutional sense, authorizing the is-
suance of the subpoenas. While there was disagreement re-
garding the procedure for the obtaining of State Records,
such disagreement did not rise to the dignity of a ‘‘eon-
troversy” within the contemplation of the Constitution. In
14
United States v. Nixon, 418 U.S. 683, 696, 41 L. Ed. 2d 1039,
1057, 94S. Ct. 3090 (1974) this Court stated:
In the constitutional sense, controversy means more
than disagreement and conflict; rather it means the
kind of controversy courts traditionally resolve.
The wrongfulness of the subpoena process employed in
the present case becomes even more pronounced if the per-
tinent provisions of Rule 17(¢) of the Federal Rules of
Criminal Procedure are considered. The rule provides that a
subpoena for documents may be quashed if their production
“would be unreasonable or oppressive”. This Court, in
interpreting the latter term, adopted the formulation of
Judge Weinfeld in United States v. lozia, 13 F.R.D. 335,
338 (S.D.N.Y. 1952), that the party using the subpoena
process must show, as one of the prerequisites for the val-
idity of the subpoena, that the documents sought hy the
subpoena ‘‘are not otherwise procurable reasonably in ad-
vance of trial by exercise of due diligence’. (418 U.S. at
699).
As previously emphasized, the documents involved here
were readily procurable without resorting to the subpoena
process Which was therefore unreasonable and oppressive,
hence in direct contravention of the principles laid down by
this Court. It should be stressed that the aforementioned
statement of this Court was clear and concise and did not
leave room for any qualifications read into it by the Court
of Appeals. Additionally, as previously mentioned, in the
subsequent case of Nixon v. Warner Communications, Inc.,
US. , 05 L. Ed. 2d 570, 98S. Ct. 1306 (1978), this
Court further confirmed this principle when it held that
judicial process was an inappropriate manner for obtaining
governmental records when there was a legislative pro-
cedure for obtaining them.
15
Moreover, the oppressiveness of the subpoena process
was highlighted by the fact that reams of documents had
to be produced by the state employees—a task which took
literally days of work, thus diverting the employees from
fulfilling their regular duties. The erroneous statement in
the Court of Appeals opinion regarding the speed and ease
with which the subpoenas ‘‘apparently [!] were com-
plied’’, lacks any factual basis in the record and is contro-
verted by the sheer volume of documents which had to be
produced, filling more than twenty large boxes.
The just-mentioned conjectural statement made by the
Court of Appeals, in attempting to lend substance to its
opinion, stands not alone. It must be emphasized in this
connection that the present proceedings relate solely to
official records of the State of Illinois, whose production has
heen sought by the United States Attorney through the utili-
zation of the subpoena process. There has never been any
claim or contention made by petitioner throughout these
proceedings that any of his personal papers, such as cam-
paign contribution records, are involved in the present pro-
ceedings. Thus, any reference to those papers in the opinion
of the Court of Appeals is misleading and improper.
It must also be stressed that petitioner never contended
that official State Records were immune from federal serut-
iny, except that in the beginning of the proceedings, the
argument was raised that State Records revealing an in-
former's identity were privileged communications. How-
ever, that argument was dropped when the United States
Attorney declared that the identity of informers was irrele-
vant to the grand jury’s inquiry, and disclosure of their
identity was not intended to be compelled. (See Tr. 3-24-78,
p. 7). That fact was later confirmed in the United States
Attorney’s Brief (p. 3, footnote 1).
16
Similarly, the Court of Appeals’ statement regarding the
right of the grand jury to every man’s evidence finds no
application in the present case since Petitioner does not
dispute the right to the information sought or the right
to use subpoenas ad testificandum, but only challenges the
use of subpoenas duces tecum which command State em-
ployees to remove State Records from their lawful de-
positories.
Thus, with the exception of the issue of whether the Dis-
trict Court had jurisdiction to issue subpoenas for State
Records which were readily available, the only issue before
the Court of Appeals for determination was whether the
federal subpoena process could and can continue to be
used to obtain official State Records when those records
can be easily and speedily obtained upon the asking and in
pursuance of the swift and effective provisions of the [li-
nois Records Act.
The Court of Appeals, after having devoted a great part
of its opinion to the problem of immunity of State Records
from federal scrutiny—a question which, as just indicated,
was not before the Covrt—-finally turned its attention to the
utilization of the federal subpoena process in relation to the
State Records Act, denying that the subpoena process was
unreasonable and improper. As previously emphasized, that
decision was erroneous. It was based upon a misapprehen-
sion of law and fact and was in direct contradiction of the
guiding principles enunciated by this Court.
Thus, the principal justification given by the Court of
Appeals in upholding the supposed legality of the subpoena
process and denying the adequacy of the Hlinois Records
Act, was grounded upon the strange speculation that peti-
tioner, in his capacity as Attorney General of Illinois, might
pick and choose those official doeuments which he would
17
make available under the Records Act. In the first place,
the subpoenas were issued both to employees in the At-
torney General’s Office and employees in other State agen-
cies not under the jurisdiction of the Attorney General, and
the United States Attorney has indicated that similar sub-
poenas will continue to be issued in the future (A3). See-
ondly, and more importantly, to assume that a public official
would act in violation of his public duties flies in the face of
well-established principles of law enunciated by this Court
(County of Pendleton v. Amy, 80 U.S. 297, 20 L. Ed. 579
(1872)), and heretofore adhered to not only in the Seventh
Cireuit [Hull vy. Continental Illinois National Bank & Trust
Co., 177 F. 2d 217, 220 (7th Cir. 1949); United States ex
rel. Adamantides vy. Neely, 191 F. 2d 997, 999 (7th Cir.
1951) ], but in other circuits as well (e.9., Alfred Knopf, Ine.
v. Colby, 509 F. 2d 1362, 1368 (4th Cir. 1975), cert. denied
421 U.S. 992; Kephart v. Richardson, 505 F. 2d 1085, 1090
(3rd Cir. 1974); Continental Bank and Trust Co. v. Bran-
don, 297 F. 2d 928, 932 (5th Cir. 1962); Goldberg v. Truck
Drivers Local Union No. 299, 293 F. 2d 807, 812 (6th Cir.
1961) cert. denied 368 U.S. 938). To controvert the pre-
sumption that a State official will honestly and faithfully
perform his duty by a mere conjecture that he might act
dishonestly, as the Court of Appeals has done in the present
cause, conflicts with the holdings of this Court and creates a
conflict between the circuits, which, it is respectfully sub-
mitted, this Court ought to resolve because it carries with
it, an impact that transcends the limits of this ease.
18
CONCLUSION
For the above stated reasons, a writ of certiorari should
issue to review the judgment and opinion of the Seventh
Circuit.
Respectfully submitted,
Wituram J. Scort,
Attorney General of the State of Illinois,
160 North LaSalle Street, Suite 900,
Chicago, Illinois 60601 (312-793-3500),
Petitioner.
Frep F. Herzoa,
Special Assistant Attorney General,
315 South Plymouth Court,
Chicago, Illinois 60604 (312-427-2737),
Ropert G. Epsteen,
Davin G. LICHTENSTEIN,
Assistant Attorneys General,
160 North LaSalle Street, Suite 800,
Chicago, Illinois 60601 (312-793-5635),
Of Counsel.
PS en
APPENDIX A
oe Se we ere —- ——~
—_
Al
IN THE
United States Court of Appeals
FOR THE SEVENTH CIRCUIT
No. 78-1459
In the Matter of
THe SpeciaL Aprit 1977 Granp Jury
Appeal of Wituiam J. Scorr, Witness.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 77-GH-2042—James B. Parsons, Judge.
Hearp June 14, 1978—Deciwep Juty 11, 1978
Before Cummings, Sprecuer and Baver, Circuit Judges.
Per Curiam. Appellant Attorney General William J.
Scott is the subject of a federal grand jury investigation.
On March 17 and 20, 1978, grand jury subpoenas duces
fecum were served upon five members of his staff,
calling for the production of his campaign records, em-
ployee rosters, his travel records, and long distance tele-
phone bills. On March 22, appellant ‘‘in his Official Capa-
city of Attorney General of the State of Illinois’’ moved to
quash or modify those subpoenas on seven different
grounds. On March 24, Chief Judge Parsons of the Northern
District of Illinois advised counsel of his tentative econclu-
sion that these subpoenas were enforceable.
On March 28, an Assistant United States Attorney
responded to the appellant’s motion to quash or modify
the subpoenas by filing an affidavit and certain exhibits
in camera, Another affidavit of the same date described
the conversations the prosecutor had with the five
A2
subpoenaed persons or their counsel and portrayed the
ease of compliance.
On April 5, Judge Parsons modified the subpoenas to
the extent that they may have covered the contents of
telephone conversations and official meetings, but the
motion to quash was denied, resulting in appellant’s filing
a notice of appeal. Stays were denied by the district court,
this Court and the Supreme Court, and the subpoenas, in-
cluding two additional ones served on April 6th, were com-
plied with during the week of April 17.
I. Mootness
In the last portion of its brief on appeal, the Government
claim that the issues raised by the appeal are moot be-
cause of the compliance with the subpoenas, Of course it is
an empty gesture to ‘‘quash’’ a subpoena already honored
(see United States v. Johnson, 215 F. Supp. 300, 318 (D.
Md. 1963), affirmed and remanded on other grounds, 337
I, 2d 180 (4th Cir. 1969), affirmed on other grounds, 383
U.S. 169) but the case still may be justiciable if the con-
troversy is capable of repetition, yet evading review. See,
e.g., Moore vy. Ogilvie, 894 U.S. 814; United States v. W. T.
Grant Co., 345 U.S. 629.
Both parts of this mootness standards as recently ar-
ticulated by the Supreme Court appear to be met here, See
First National Bank of Boston vy. Belotti, —— U.S. —-,
——, 46 LW 4371, 4374; Weinstein v. Bradford, 423 U.S,
147, 149. First, as the dates outlined above indicate, the
challenged action was too short to be litigated fully prior
to appellant’s compliance, While it could be argued that
appellant could have obtained review before compliance by
refusing to supply the documents and appealing a subse-
quent finding of contempt, the Supreme Court has not re-
quired litigants to subject themselves to contempt or
criminal sanctions in order to meet this prong of the
mootness test. See, e.g. Nebraska Press Association v.
Stuart, 427 U.S. 5389; First National Bank of Boston vy. Bel-
lotti, supra,
A3
The second prong of the test is that there is a reasonable
expectation that the same complaining party will be sub-
jected to the same action again, That prong is satisfied
here because as we were advised at oral argument this
subpoena is part of a continuing investigation and future
subpoenas of state officials, including the Attorney Gen-
eral’s office, subject to the same objection are likely, Com-
pare Securities and Exchange Commission v. Sloan, ——
U.S. ——, 46 LW 4426.
Il, Lmmunity and Privilege
Appellant’s first attack on the subpoenas is that they
represent an unconstitutional federal ‘‘exeursion’’ into
the territory of exclusive state sovereignty, apparently on
the grounds that certain state functions are immune from
subpoena and certain state records are privileged from sub-
poena. We disagree. Branzburg v. Hayes, 408 U.S. 665,
668, emphasized the publie right to obtain every man’s evi-
dence through grand jury proceedings, and United States v.
Nixon, 418 U.S, 683, 709-710, noted that the process for the
production of evidence has only limited exceptions which
are ‘‘not lightly created nor expansively construed * * *,’?
Nothing in the United States Constitution immunizes
any ‘‘exclusive domain of the state’? (Br. 24) from the
reach of a federal grand jury, and appellant has cited no
case recognizing any such immunity. Compare Pitcher vy.
Uniled States Attorney, 199 ¥. Supp. 862 (.D. La, 1961) ;
Touhy v. Ragen, 340 U.S, 462, 470 (Frankfurter, J., con-
curring). As then-Judge Webster’s recent discussion of
the grand jury’s power with respect to the Sioux Indians
indicates, the existence of some degree of sovereignty does
not excuse a state from its responsibility to provide evi-
dence to the grand jury. See In re Long Visitor, 523 F. 2d
443, 446 (Sth Cir. 1975); ef. Martin v. Hunter’s Lessee, 1
Wheat. 305, Rather than carving out an unprecedented
exemption from an arm of the federal government’s en-
forcement power, the requisite deference to a state’s needs
can be applied by considering with some care whether those
A4
needs are sufficient to create a privilege for certain state
records, Compare Uy 'ted States v. Burr, 25 Fed, Cas. 30,
35 (1807); United States v. Nixon, 418 U.S, 683.
Certainly the Tenth Amendment and National League
of Cities v. Usery, 426 U.S. 833, do not justify a contrary
result. The federal interest in obtaining evidence in order
to enforce its criminal laws against individuals is of an
entirely different class from the interest asserted in Usery,
while Congress sought ‘‘to regulate directly the activities
of States as public employers * * *’’ (at 841), As discussed
below, the impact of a subpoena on state functions is mark-
edly different trom the Usery direct system of regulation
that requires a reallocation of state resources, Accord, In re
Grand Jury Proceedings, 563 ¥, 2d 577 (8d Cir, 1977) ;'
ef. National League of Cities v. Usery, 426 U.S, 8383, 856
(Blackmun, J., concurring). This distinction is particularly
applicable here because this grand jury has not embarked
on a ‘grandiose, brazen fishing expedition * * * into the
affairs of the State of Illinois’’ (Br. 24) but rather is con-
cerning itself with appellant’s own affairs. To paraphrase
from Judge Swygert’s recent opinion in Marshall v. City
of Sheboygan, —— F. 2d —— (7th Cir. No, 77-1272 de-
cided May 24, 1978), ‘‘enforcement of the * * * [subpoenas]
against the States and their subdivisions will not * [impair]
the States’ integrity or their ability to function effectively
in a federal system’ ’’ (slip op. 11).
Nor should these record be privileged from disclosure.
As a general matter, courts consistently have rejected the
view that state records are privileged from disclosure (see,
e.g. Inve Grand Jury Proceedings, 563 F, 2d 577 (8d Cir.
1977); see generally Matter of Grand Jury Impaneled Jan-
uary 21, 1975, 541 F. 2d 878 (8d Cir. 1976) ), even in cases
1, There the court recognized only a federal common law
privilege of state legislators, in accord with United States v. Craig
1, 528 F. 2d 773 (7th Cir. 1976), but rejected in United States v.
Craig 11, 537 F. 2d 957 (7th Cir. 1976) (en banc), certiorari denied
sub nom, Markert v. United States, 425 U.S. 973.
2. Quoting Fry v. United States, 421 U.S. 542, 547 n, 7.
A5
in which state law prohibited the disclosure of the records.
Lg, In re New York State Sales Tax Records, 382 F. Supp.
1205, 1206 (W.D. N.Y. 1975)." Where, as here, the State
argues that at least some of the records are required to be
disclosed rather than suppressed under state law, it is dif-
ficult to imagine how these precedents can be avoided.
More specifically, appellant offers no reason beyond
the supposed exclusivity of the sovereign under Younger
v. Harris, 401 U.S, 37, why a privilege is needed for these
documents or why a privilege is appropriate under the Fed-
eral Rules of Evidence standard of developing privileges
by resort to ‘‘principles of the common law as * * * inter-
preted in the light of reason and experience.”* For example,
3. If any records whose disclosure is prohibited by Section 11
of the Illinois State Records Act (Ill. Rev. Stats. (1977) ch. 116
§§ 43.4, 43.14) are included in the records subpoenaed, we agree
with Judge Curtin that the Supremacy clause requires their dis-
closure to the grand jury unless the materials are otherwise privi-
leged. 382 F. Supp. 1205. This requirement is particularly justifiable
in light of Section 11's explicit recognition, similar to the New
York statute, that the restriction against disclosure is not absolute.
Section 11 provides:
“All records made or received by or under the authority of
or coming into the custody, control or possession of public offi-
cials of this State in the course of their public duties are the
property of the State and shall not be mutilated, destroyed,
transferred, removed or otherwise damaged or disposed of, in
whole or in part, except as provided bu law.” (Ill. Rev. Stats.
(1977) ch. 116 § 43.14) (emphasis added).
4. Rule 501 of the Federal Rules of Evidence provides:
“Except as otherwise required by the Constitution of the
United States or provided by Act of Congress or in rules
prescribed by the Supreme Court pursuant to Statutory auth-
ority, the privilege of a witness, person, government, State, or
political subdivision thereof shall be governed by the principles
of the common law as they may be interpreted by the courts
of the United States in the light of reason and experience.
However, in civil actions and proceedings, with respect to an
element of a claim or defense as to which State law supplies
the rule of decision, the privilege of a witness, person, govern-
ment, State, or political subdivision thereof shall be determined
in accordance with State law.”
A6
there is no reason to expect that any worthwhile conduct
will be deterred if employee rosters are disclosed. Any
unfortunate results of the disclosure of remaining types
of items such as travel records, lists of telephone calls (as
opposed to their substance) or campaign records pale by
comparison to the hazards unsuccessfully claimed in an
atiempt to quash the subpoena in United States v. Nixon,
418 U.S. 683; ef. Buckley v. Valeo, 424 U.S. 1. Since the
Government does not seek ‘‘confidential communications,
informant identities and the contents of case files’’ (Govt.
Br. 12 n. 10), appellant’s use of this justification for a
privilege is misplaced (Br. 47-50; but see Reply Br. 11). In
light of the relative unimportance of the need to make
the documents privileged, the ‘two-fold aim of criminal
justice—that guilt shall not escape nor innocence suffer’’—
demands that these items be available to the grand jury.
See Matter of Grand Jury Impaneled January 21, 1975, 041
F’, 2d 373, 382 (3d Cir. 1976).
III. Reasonableness of the Subpoenas
Next appellant offers several reasons why the subpoenas
should be quashed under the limitation in Rule 17(c) of the
Federal Rules of Criminal Procedure on ‘‘unreasonable
or oppressive’’ subpoenas. The argument that compliance
is oppressive is virtually frivolous, for, as already noted,
the persons subpoenaed already have complied with the
requested documentary production. The Government has
not complained that the compliance was deficient and the
speed and ease with which the subpoenas apparently were
complied belies any claim of oppressiveness. See generally
Brown v. United States, 276 U.S. 134, Nor were the sub-
poenas oppressive because, as claimed at oral argument, the
original documents turned over to the grand jury are
needed for auditing purposes. First, the Government re-
sponded that it was making (and had made known its
willingness to make) needed original documents available
to the State. Seéond, despite his counsel’s oral assertion
AZ
here, appellant made no showing whatsoever in the court
below that the absent subpoenaed documents would have a
deleterious effect on the functioning of any state office.
Finally, even if true, a claim of disruption caused by record
production does not preclude compliance with a grand jury
subpoena. See Matter of Grand Jury Impaneled January
21, 1975, 541 F. 2d 3873 (3d Cir. 1976).
The contention pressed most vigorously by appellant on
this appeal is that some of the documents were available
through a request under the Illinois State Records Act
(Ill. Rev. Stats. (1977) ch. 116, §§ 43.4 ef seq.), so that
requesting them by subpoena is unreasonable and oppres-
sive. The Records Act provides that certain state records
‘fare public records available for inspection by the pub-
lie.’’ Id. § 43.6. Relying on Judge Weinfeld’s formulation
in United States v. Iozia, 13 F.R.D. 335, 338 (S.D. N.Y.
1952), recently repeated by the Supreme Court in United
States v. Nixon, 418 U.S. 683, 699, appellant argues that
‘in order to require production prior to trial, the moving
party must show * * * that they are not otherwise pro-
curable reasonably in advance of trial by exercise of due
diligence.’’ It is also asserted that use of the State Records
Act is particularly appropriate under Younger v. Harris,
401 U.S. 37, because that case purportedly established that
the federal government has a special (uty to avoid such
unreasonable interference in the state’s affairs.
Initially, however, it does not appear true that most of
the subpoenaed documents are available under the Act, or
that the remainder can be procured under reasonable terms.
Even appellant admits that many of the documents, such
as campaign information, would be unavailable under the
Act. As to the remaining documents, the Act provides
5. Nixon v. Warner Communications, —— U.S. —~—, 46 LW
4321, is of no solace to appellant despite his insistence that it
establishes the need to use an available statutory plan rather
than court process. The dispute there was over public access
to items already subpoenaed and did not involve the power to
reach evidence by subpoena.
A8
that they cannot be viewed if they are then being used by
state officials ($ 43.6). Also, the Act does not permit the
originals to be removed (§ 43.7) and even allows the state
official discretion to permit viewing only of copies (id.). Of
course the Act provides no mechanism by which a request-
ing party can guarantee that there was full compliance with
its request.
Even assuming that the Act theoretically may be suf-
ficient in some cases, applying it to these unique cireum-
stances would permit the Attorney General to control the
release and availability of documents under the Act
“(§$ 43.6; see ch. 14 § 4). Apart from the justifiable doubt of
full compliance that the Government would have without
the force of a subpoena when the purported subject of the
investigation would choose what documents to release, re-
quiring pursuit of this a:‘ernate method of procurement
is not justified anyway by the rationale of Judge Wein-
feld’s rule in Jozia. As that rule has been applied, it is
used to avoid allowing a party who may have the needed
document in its own possession, or could easily obtain it
from another source, to force the subpoenaed party to bear
the costs of searching for the document. Placing such a
burden on the subpoenaed party when another source is
available is deemed unreasonable and oppressive. See,
e.g., United States vy. Cohen, 15 F.R.D, 269 (S.D. N.Y.
1953) ; United States v. Schine, 126 F. Supp. 464 (W.D. N.Y.
1954) ; United States v. Duncan, 22 F.R.D. 295 (S.D. N.Y.
1958); United States v. Woodner, 24 F.R.D. 33 (S.D. N.Y.
1959). In fact, in extrapolating on the rule in Nixon, the
Supreme Court described it as asking whether ‘‘the sub-
poenaed materials are not available from any other source.”’
418 U.S. at 702.
When put in this context, the inapplicability of the rule
here becomes apparent. It is not denied that the obligation
to search for and produce the documents falls on the At-
torney General’s office whether or not a subpoena is used.
The argument that the Act should have been used is there-
AQ
fore not the accepted argument that the subpoena places
an unduly oppressive burden on the appellant but rather
essentially is a claim that using a subpoena instead of the
Act is not the most sensitive manner of proceeding and
that it therefore is inconsistent with some penumbra of
‘Our Federalisn.’’ While it may have been more seemly
for the United States Attorney to seek to use the State
Records Act before resorting to a subpeona, given the po-
tential problems with compliance under the Act, the inap-
plicability of the Act to many of the documents sought, and
the necessity that some sensitivities be implicated in almost
any grand jury investigation (compare United States v.
McGrady, 508 F. 2d 13, 18 (8th Cir. 1974), certiorari de-
nied, 420 U.S. 979), we cannot say that it was an abuse of
discretion not to quash the subpoenas on this ground. See
United States v. Nixon, 418 U.S. 683, 702. It should be noted
that the Third Circuit already has held that it was not an
abuse of discretion to hold that the grand jury’s inves-
tigative interests outweigh a similar state ‘*comity’’ eon-
cern. Matter of Grand Jury Impaneled January 21, 1975,
041 BF. 2d 373, 377-378 (3d Cir. 1976).
Our examination of the documents submitted to the dis-
trict court in camera satisfies us as to the relevaney and
materiality of the information sought.
Orders affirmed.
A true Copy:
Teste:
ot OS Ta Te ee a oe ee ee oe ee eo ee a a a a ee
Clerk of the United States Court of
Appeals for the Seventh Circuit
A10
UNITED STATES COURT OF APPEALS
For the Seventh Cireuit
Chicago, Illinois 60604
August 11, 1978
Before
Hon. WALTER J. CUMMINGS, Cirenit Judge
Hon. ROBERT A. SPRECHER, Circuit Judge
Hon. WILLIAM J. BAUER, Circuit Judge
United States
In the Matter of SPECIAL APRIL | District Court for
1977 GRAND JURY Appeal of the Northern Dis-
WILLIAM J. SCOTT, Witness trict of Illinois,
_ Eastern Division.
No. 78-1459 | No. 77-GJ-2042
James B. Parsons,
Judge.
Appeal from the
ORDER
On consideration of the petition for rehearing and sug-
gestion for rehearing en Lance filed in the above-entitled
cause by Witness William J. Scott, no judge in active serv-
ice* has requested a vote thereon, and all of the judges on
the original panel have voted to deny a rehearing. Accord-
ingly,
IT IS ORDERED that the aforesaid petition for rehear-
ing be, and the same is hereby, DENIED.
* Judge Harlington Wood, Jr. did not participate in con-
sideration of this petition.
All
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS,
KASTERN DIVISION
Name of Presiding Judge, Honorable James B. Parsons.
Cause No. 77 GJ 2042. Date: April 11, 1978
Title of Cause In re: Special April 1977 Grand Jury.
* * *
Pursuant to the Court’s oral memorandum opinion and
order [of April 5, 1978], motion to modify subpoenas al-
lowed in part. Motion to quash subpoenas denied. Sub-
poenas as heretofore modified are returnable April 12,
1978 at 3:00 p.m.
s/ JBP
Al2
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
IASTERN DIVISION
In re.
THE SPECIAL APRIL 1977 No. 77 GJ 2042
GRAND JURY
TRANSCRIPT OF PROCEEDINGS
Before
HON. JAMES B. PARSONS
Chief Judge
April 5, 1978
2:25 o’clock, p.m.
PRESENT:
MR. SULLIVAN
MR.MARGOLIS
MR. HERZOG
THE CLERK: 77 Grand Jury 2042, In re. The Special
April 1977 Grand Jury; ruling on movant William J.
Scott’s, Attorney General of the State of Illinois, motion to
quash or modify subpoenas.
THE COURT: | want to thank you gentlemen. You may
wish to be seated because it takes me a few minutes to read
what I have. | want to thank you for responding to my re-
quest that we assemble at two o’clock today. I have to leave
the city for a couple of days. I didn’t want to ask you to
return after I have returned. I want to thank you also for
your indulgence and patience in awaiting my later arrival
here than two o’clock. Part of it, I assure you, is due to the
Al3
difficulty of getting here from within the building, from the
25th floor to this floor, by judicial routes that are devious
and oceasionally | discover that though I might wish to do
so, the elevator doesn’t run both directions at fhe same time.
I have a memorandum here but this is not a final and
appealable order, and, for that reason, the memorandum
merely explains what I do and does not go into the full
length of the legal merits, what I would do as I would in a
final and appealable order. For there to be a final and ap-
pealable order there would have to be a rule to show cause
on a failure to obey the subpoenas.
Now, the movant here is the Attorney General of the
State of Illinois. He is not the person subpoenaed but be-
cause of the nature of the subpoena he has standing to
object to compliance with the terms thereof. In his motion
to quash or modify certain subpoenas served upon person-
nel of his staff, the Attorney General of the State of Illinois,
the Honorable William J. Scott, notes that the subpoenas
cover a full range of official and privileged documents and
papers maintained in his office covering the entire period of
his service as Attorney General and that the materials
sought are exempt because of a privilege running to his
office as a constitutional officer of a sovereign state, as well
as a privilege running to the people of the State of Illinois
such as that recognized in the lawyer-client privilege com-
mon to our profession that excludes confidential communi-
cations between attorney and client, a privilege well recog-
nized by law.
He further indicates that the subpoenas are overbroad
and unreasonably interfere with the duties of his office.
I have reviewed the subpoenas on their face and find in
certain respects that some of them have technical errors
that can be corrected by modifications and that some of
v
Al4
them lack some of those restraints which protect the grand
jury subpoenas from the overbreadth attack. These fallacies
of overbreadth, not uncommon where there is a persistent
belief that there are no restraints to which a grand jury
must yield or where there is inadequate attention addressed
to the principle of draftsmanship, but even these fallacies
can be corrected by modification of the subpoenas.
The suggestion that a federal grand jury has a fundamen-
tal right to the testimony of anyone and that the subpoenas
of the federal grand jury may command without restraint
everyone and everything reflects a general principle with-
out the exceptions.
Under our Constitution no authority is absolute and the
grand jury, like all other vested authorities, must under
many circumstances yield to the rights and privileges which
so deeply are ingrained in our system and traditions as to
be ranked as fundamental.
For example, grand jury subpoenas may not invade the
privacy of individuals in violation of their rights under the
Fourth, Fifth and Sixth Amendments. Those include the
right that searches and seizures be reasonable, that judicial
process answer to the requirements of due process of law,
that the right against self-incrimination under the Fifth
Amendment may be asserted and respected when so as-
serted by the person himself or herself being subpoenaed
to not produce that which would tend to incriminate such
person, and the Sixth Amendment right to effective counsel,
out of which, of course, grows the attorney-client and work
product privileges.
It should be noted parenthetically that the Fifth Amend-
ment right is a personal right to the witness; it cannot be
asserted by the third party in his own interest when he is
not the person subpoenaed, but the third party intervenor
is free to assert the other rights which are fundamental in
a es
Ald
the Constitution and its Amendments if he has standing to
intervene.
It is fundamental that a grand jury is not a research
investigative body, like an overseer, throwing its light over
everything with a view toward finding anything that might
constitute a violation of law. It is not a policing agency. ‘It
is not an investigative agency of the Executive Branch of
the Government in the usual use of that term, such as is
the Federal Bureau of Investigation or the Secret Service
or the Special Agents of the Internal Revenue Service. It
is indeed a part of the judicial branch of the government
with the primary responsibility of standing as a screen
between the Executive Branch and the people to see that a
citizen is not formally charged with a crime where there is
no evidence whatsoever that he committed the crime.
The Constitution makes the product of the grand jury’s
work a right inuring to the people themselves. Its special
constitutional recognition is in the Fifth Amendment, which
provides that no person shall be caused to answer to an
infamous crime, that is to say, a felony charge, except upon
the presentment of a grand jury.
In pursuit of the performance of that service to the
people and throughout its history grand juries have been
accorded powers commensurate with their responsibility to
pursue a preliminary but formidable charge to determine
whether or not there is anything to it, and in the pursuit
of this responsibility the federal grand jury subpoena must
be answered wherever, in the absence of the constitutional
restraints I have enumerated, it addresses itself.
The real and substantial issue raised by the Attorney
General in this motion to quash, however, is another. It is
whether or not the subpoena of the grand jury of this
court may reach into the record of a department or an
Al6
agency or a corporate entity of the State of Tlinois, This
brings into focus not the issue in the Nixon case regarding
the separation of powers between the three branches of
government and the privilege, if any, that exists in the
executive brach to an independent determination of what
it will disclose to this arm, that is, the grand jury, of the
judicial braneh; this case brings into foeus the powers of
the grand jury to read into the records and documents and
activities of the government of one of the states, that is,
it brings into the foreground the meaning of the Ninth Ar-
ticle of the Constitution guaranteeing the states of our
Union a republican form of government and the meanings
of the Tenth Article of the Constitution reserving all but
the powers expressly granted to the Congress in Article
I of the Constitution to the states or to the people separ-
ately and respectively,
Some of the language in U.S, vy. Nixon has been helpful
to me in coming to a conclusion on that issue, but I have
been primarily assisted by returning to some of the early
cases under the Constitution decided under Chief Justice
John Marshall regarding state and federal rights, cases
deciding the issue of federalism, such as Marbury v. Madi-
son, citation; McCollough v. Maryland, citation, and Gib-
bons v, Ogden,
These, | acknowledge, also were referred to hy Judge
Sirica in his decision in ‘the Nixon case and alluded to
in the appeal decisions in that same ease by the higher
courts, More reeently [ cite other eases which will be in
the written form of this opinion which support my position
here,
I am convinced, as I already have preliminarily indicated
to counsel for both sides, that the state sovereignty prin-
ciple does not serve to protect documents of the State
of Illinois or of its officers in their official capacity from
ce
Al7
the grand jury subpoena of this court, nor, of course, priv-
ileged Coeuments of any person, including an officer of the
State of Mlinois, which for any reason are left in or are
found to be in the possession of the state or of its agents,
Therefore, there is nothing in the state sovereignty eon-
cept that would prevent the subpoenas from being served
and enforced,
As to the question of the attorney-client privilege be-
tween the people of the State of Illinois and their lawyer,
the Attorney General, easily referred to as the attorney-
client privilege, I find because of certain small modifiea-
tions I make in these subpoenas that I need not address
this issne with those minute modifications. Tho question
does not exist, and T feel that this decision is not the proper
place, therefore, to reach that more difficult question,
In the light of the objections relative to whether the
subpoenas seek material which could be relevant to any
matter before the grand jury, following procedures T have
repeatedly followed and have again and again been sus.
tained on, that is, when faced with the question of the
materiality or the balancing of equities between the equal
importance of considerations on behalf of the Witness
subpoenaed and considerations on behalf of the grand jury
or questions as to the propriety of prosecutorial action as
it affects the freedom of the grand jury to proceed or the
fundamental funetions of the grand jury, T have here also
requested and reviewed in-camera affidavits and materials
of the grand jury or affidavits reflecting what materials
the grand jury has or will be shown, and from these ma-
terials and affidavits, which have been impounded for pur-
poses of appeal, or will be by this order, T am satisfied
that the subpoenas as to their substance are all reasonable
—they are reasonable searches and seizures— that there
is a rational relationship or nexus between what they seek
and the business of the grand jury,
Als
Further, I am confident that the interests of the sub-
poenaed witnesses are best served hy subpoenas rather
than there being an insistance upon them as agents of the
Attorney General or as employees of the Attorney Gen-
eral’s office to make voluntary disclosures, sinee to do so
may under certain circumstances violate the eriminal laws
of the State of Illinois,
One of the documents attacked by the movant to the
petition and asked to be quashed is titled a ‘Subpoena
Ticket.’ That, I understand, was served upon a Mrs, Jo-
sephine Bonasaga of Springfield, Illinois, It is some sort
of form with questionable power under the heading of the
Southern District of Mlinois. [ understand that it has heen
used from time to time as a sort of notice when there hasn’t
been time to cause the service of the subpoena, T under-
stand it has been superseded here, however, by a subpoe-
na from this court.
Nevertheless, it is a part of this pleading, it is a part
of the documents served upon the witnesses. Tt isn’t worth
the paper it is written on. It misinforms and, if relied upon
to demand an appearance or produce documents from Mrs,
Banasaga, it could not and would not be enforeible by this
court. I will strike it and hold it for naught, This is with-
out prejudice to any subpoena properly served upon her,
even one setting out, should it set out, the same items re-
cited in this so-called subpoena ticket,
My minor modifications of other subpoenas may be held
to read upon any identical items set out in that subpoena,
should they be set out in that subpoena, in order that the
parties may adjust their responses without further appli-
cation to this Court for clarification, should they find this
possible, As to all the subpoenas the parties are reminded
of the caveat, unwritten, which reads into any duces tecum
ee
A19
—a party need not produce what a party does not have.
That caveat, however, does not excuse appearance before
the grand jury when no documents so specified in a sub-
poena tecum are possessed by a witness, That ‘“aveat,
however, cannot do other than protect the witness against
the requirement of producing what that witness does not
have,
As to the notation on each subpoena, ‘Tf you have any
questions contact Assistant United States Attorney—” at
a given telephone number, that is an appropriation of the
Court’s order for sending of such personal communication
and it will be stricken, This could be a prejudice to the per-
son subpoenaed but under the circumstances here I find
no prejudice to the person subpoenaed, This ruling of the
Court, however, as has been heretofore indicated in other
similar situations, is without prejudice to the attachment
with a paperclip of any message which the Assistant U.S.
Attorney or the agent working with the case wants to place
on the subpoena and it is in the good graces of the United
States Marshal if he so chooses to deliver that message
along with the subpoena he serves,
As to the subpoena served upon Mr, Herbert Caplan, it
is modified by adding the phrase at the end thereof “but
excluding any notations or other recordings or record-
making of the substance of the conversations engaged in
through such telephone ealls.”’
As to Paragraph 3 in the Caplan subpoena, it is modi-
fied by adding at the end of said paragraph the following,
‘*, . . but excluding any notations, memoranda or other
means used to preserve the substance of the matters and
transactions themselves which oceurred in such trips, other
than the fact thereof and the reason therefor,’’ This exclu-
sion does not exclude the items patricularized in such para-
graph.
A20
These identical paragraphs also appear as Paragraphs
8 and 4 respectively of the Zelkoff subpoena and Para-
graphs 2 and 3 respectively of the Hammelberg subpoena,
and probably, if copied directly from the above-mentioned
subpoena ticket, it would appear as Paragraphs 1 and 2 of
the Bonasaga subpoena.
The Korthauer subpoena has the same language in Para-
graph 1 as the language in Paragraph 2 of the Caplan
subpoena, which paragraph is thus amended accordingly.
Paragraph 2 of the Korthauer subpoena in substance
is the same except it is worded slightly differently from
Paragrah 3 of the Caplan subpoena but it is modified by
the adding of the phraseology which I have added on the
Caplan subpoena.
With these amendments and modifications thus made the
motion to modify is allowed as noted above.
The motion to quash is denied. During argument before
me and by indirect reference in briefs attorneys for the mo-
vant complain that leakage of information presented to the
grand jury was necessary to certain press stories and they
necessarily must have occurred in violation of Rule 6 of
the Federal Rules of Criminal Procedure. Rule 6 in the
traditional as well as statutory secrecy of the grand jury
materials and deliberations of the grand jury is the most
important rule with relation to grand jury proceedings and
offenses against it should be severely handled and persons
with information of offenses against Rule 6 should bring
that to the attention of the Court.
I have here, however, only vague references and specula-
tive statements with relation thereto. No matter under
Rule 6 has formally been presented to me. Wherefore, as
to this point I make no other reference at this time. T will]
consider any of those matters if and when they are pre-
sented to me.
A21
Finally, the subpoenas as heretofore modified are re-
turnable by order of this Court made now—what is the
date of the next appearance of the grand jury?
MR. MARGOLIS: The next appearance of the grand
Jury will be one week from today.
THE COURT: Not tomorrow.
MR. MARGOLIS: That is a Wednesday grand jury.
They are here now and they will be here next Wednesday.
THE COURT: What is the date?
MR. MARGOLIS: I believe April 12.
THE COURT: (Continuing:)—on April 12 at ten
o’clock.
MR. MARGOLIS: Pardon me. If I might, at three
o’clock is the time that this case is scheduled before the
grand jury, on April 12.
THE COURT: All right, we will make them available
at three o’clock.
MR. SULLIVAN: May I point out that Iam informed
that with regard to the subpoena ticket that you mentioned
directed to the witness Bonasaga the actual subpoena con-
tained the title of the Southern District rather than this
court, but the same request has been served upon Mrs.
Bonasaga and indeed had been served upon her prior to our
last appearance before you. That subpoena ticket is not
what we rely upon as to her.
THE COURT: All right. Well, that is why I included
in my little memorandum that I was modifying that if it
did include the phraseology which is in the subpoena
ticket.
MR. SULLIVAN: Right. Well, it does.
THE COURT: So you need not return back to me
and Dean Herzog need not return back to me on that
subpoena if in fact it was so served,
A22
MR. HERZOG: May I respectfully request a stay of
the subpoenas. We respectfully disagree here that this or-
der is not appealable. We have a number of cases which
show under our research that the order is appealable, be-
cause we appear here again for the sovereign State of Illi-
nois; we do not appear here in behalf of the Attorney Gen-
eral as a person against whom an investigation has been
conducted and is being conducted.
Under these cases we have we respectfully submit we
have the right to appeal this ruling and, therefore, I re-
spectfully ask again, your Honor, that you grant us a
Stay of the subpoena. Particularly I mention here in this
respect the case which you indicated in Nixon v. Sirica
where the order of the disrict court provided, and I quote:
‘‘Further ordered that the ruling herein be stayed
for a period of five days, in which time r spondent
may perfect an appeal from the ruling, and it is fur-
ther ordered that should respondent appeal from the
ruling herein the above stay will be extended indefi-
nitely pending the completion of such appeal or ap-
peals.’’
[ again respectfully request you grant us a stay until,
first of all, we can digest your ruling, and, secondly, if we
desire to appeal, we can take the appeal.
THE COURT: How long did Judge Sirica allow that
first stay?
MR. HERZOG: The first he had allowed five days, then '
he said, ‘‘further ordered that should respondent appeal
from the ruling herein, the above stay will be extended
indefinitely pending the completion of such appeal or
appeals.’’
THE COURT: Let the record indicate that even though
I, assuming that I may be in error as to the appealability
= ' iain
Da a i cant, STN INSTOT ehae les e
od Ge a, Ae a
A23
of the order, since I did make the subpoenas returnable
seven days hence, that it serves the same as a stay. It is not
made returnable forthwith, and should an appeal be per-
fected by that time, then I will grant sufficient stay to al-
low the Court of Appeals the thirty days which under the
statute it has to rule on the appeal.
MR. HERZOG: Thank you, your Honor.
THE COURT: I don’t know that there is a special
appealability to this because of the State of Illinois or not.
You say that there is?
MR. HERZOG: Yes.
THE COURT: Because of its sovereignty?
MR. HERZOG: Yes.
THE COURT: An appealability that would not obtain
to a private individual because of its special nature?
MR. HERZOG: Well, it’s a third party here, the State
of Illinois, as a sovereign, because obviously the employees
will not risk contempt procedure—
MR. SULLIVAN: May I point out that the motion to
quash or modify was brought by Mr. Scott in his official
capa‘ity as Attorney General of the State of Illinois and
is signed at the end, ‘‘ William J. Scott, Attorney General,
in his official capacity as a constitutional officer of gov-
ernment of the State of Tlinois’’ and not on behalf of the
State of Illinois. In fact, I would be shocked if Governor
Thompson would join in this motion. The State of Illinois
is not before this Court and I think that what is really
happening here is that Mr. Scott has retained counsel and
is probably paying out of some department of the State
of Illinois to represent himself personally and trying to
bring the mantle of state government over him, as he did
in this motion which you have denied, but there is no ‘‘State
of Illinois’’ even on his papers in front of this Court.
A24
I don’t think he has the authority to bring the State
of Illinois in here without the Governor’s acquiescence,
THE COURT: f would have to research the matter,
Illinois is a strange state, The departments are not sub-
ordinate departments of the top executive, and in many
instances I do recall from the olden days in the corporation
counsel’s office even the governor didn’t have some powers
that the attorney general had/has as the attorney for the
state.
He is elected independently, and occasionally one is of
one party and the other is of the other.
I’m not sure. I really don’t know. That is a question that
is interesting to research. Under Illinois law this structure
of the executive branch, of execuutive responsibility, sort
of defies quick evaluation.
MR. SULLIVAN: That is true. | am just pointing out
that on his own papers he doesn’t assert the state is here,
he asserts he is here jn his capacity, and I now quote, ‘*. ..
as attorney general of the State of [linois.’’
THE COURT: There are pleadings in civil proceedings
Where the attorney general proceeds as ‘‘The State of IIli-
nois vs. —’’ In criminal proceeding, of course, the state’s
attorney proceeds invariably as ‘‘The People of the State
of Illinois —’’ It is still] quite mixed up.
MR. HERZOG: May I answer that, your Honor?
THE COURT: Yes,
MR. HERZOG: If the distinguished United States Dis-
trict Attorney would have read our brief—
MR. SULLIVAN: I read it.
MR. HERZOG: Well, then you forgot.
MR. SULLIVAN: The important thing is the moving
papers.
NR Erte Ct ia as et Bee i
ee te ee
+ caste...
—
So eile Hed Bae
HRA Silliee SARS a NS lash TNS ates tenet ts
A25
MR. HERZOG: The important thing is that he files
this brief and his motion in his official capacity as the
Attorney General of the State of Illinois,
MR. SULLIVAN: That’s what | just got through say-
ing.
MR. HERZOG: Not as an individual, as an official of-
ficer of the State of Illionis under the Constitution as well
as under a whole range of cases going back to Fergusson
v. Russell; he has here not merely the authority but the
obligation to represent the interests of the state, and only
the attorney general and nobody else is mentioned by the
Illinois Supreme Court as in Fergusson v. Russell, in Stein
v. Howlett—I ean go on and on, and the attorney general vy.
the racing board, because, after all, I argued that case. So I
know a little bit about these cases.
MR. SULLIVAN: I agree with what he says but it is
irrelevant to the point. He is here trying to protect him-
self.
MR. HERZOG: No.
MR. SULLIVAN: The attorney general, he titles this
thing as in the official capacity of attorney general, but
that does not mean that he is here on behalf of the State
of Illinois. He doesn’t say he is here on behalf of the State
of Illinois.
I say he has no authority to bring the State of Illinois
in here, Let Governor Thompson come in here—
MR HERZOG: Governor Thompson has no right here,
He has to proceed through the attorney general. That is
why I tried to emphasize and to impress upon you, and I
wish you would read the cases of Fergusson v. Russell
and—
MR. SULLIVAN: I am familiar with that law and I
accept it.
A26
MR. HERZOG: Then you have forgotten. I don’t want
to engage in a discussion about the merits with you. I can
only say that the only representative, the only authorized
legal representative of the sovereignty of the State of Illi-
nois is the attorney general, and if a person wishes to repre-
sent of State of Illinois he has to get the approval of the
attorney general.
MR. SULLIVAN: This is so irrelevant that it is pain-
ful, your Honor. It is just irrelevant.
MR. HERZOG: It might be relevant for you if you
have engaged in a fishing expedition as far as the State of
Illinois is concerned, but it is not irrelevant to the people
of the State of Illinois, particularly if they have to pay the
costs for your fishing expedition.
MR. SULLIVAN: I resent that. They have to pay the
fees in order to protect Mr. Scott. Then the people are in-
volved here.
MR. HERZOG: Never mind my fees.
THE COURT: I do not know who is representing
whom, whether it is personal; I have to take it as I find it in
the pleadings. I have to give those pleadings the benefit of
a doubt, particularly in light of the admonition under Rule
11 of the Rules of Civil Procedure, which provides, of
course, the allegations of the complaint, when signed by
the lawyer, are verified really by the lawyer. He puts his
stamp of approval behind them.
So I have to accept them on their face. If he states
that he does this on behalf of the office of the attorney
general, I would assume, unless a motion were made to
quash it on the ground that he didn’t have authority to
do it, that he does, I don’t know, but for the purposes
of my ruling it would not matter one way or the other.
Viren Se hid ehatets b>
a I is tic sass ese LITRE RI se Duke
A27
The subpoenas are good wherever they may go under
these circumstances as I have found, both with relation
to the question of sovereignty, state sovereignty, and the
question of lawyer-client privilege.
MR. SULLIVAN: Your Honor, we will ask your court
reporter to type up your remarks so that we may advise
the subpoenaed persons of the modifications to the sub-
poenas.
THE COURT: Yes. That will save my minute clerk
also the necessity of putting word-for-word what I said
down. All right. Thank you, gentlemen.
MR. SULLIVAN: Thank you, your Honor.
MR. HERZOG: Thank you, your Honor.
A28
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
In re.
THE SPECIAL APRIL 1977 No. 77 GJ 2042
GRAND JURY
CERTIFICATE
I HEREBY CERTIFY that I reported in shorthand the
proceedings had in the above-entitled cause, before the
HON. JAMES B. PARSONS, Chief Judge of said Court,
on April 5, 1978, and that the foregoing transcript is a
true, correct and complete transcript of my original and
official shorthand notes so taken as aforesaid.
S/JOSEPH R. BETZ,
Official Court Reporter,
United States District Court,
Northern District of Illinois,
Eastern Division.
hte ewe Ee tie Se aCe adie weal ll
APPENDIX B
te ee ee
B1
APPENDIX B
UNITED STATES CONSTITUTION, ARTICLE ITI,
SECTION 2:
The judicial Power shall extend to all Cases,
in Law and Nquity, arising under this Constitution,
the Laws of the United States, and Treaties made,
or which shall be made, under their Authority; — to
all Cases affecting Ambassadors, other publie Minis-
ters and Consuls; — to all Cases of admiralty and mari-
time Jurisdiction; — to Controversies to which the
United States shall be a Party; — to Controversies
between two or more States; — between a State and
Citizens of another State;— between citizens of dif-
fering States; — between Citizens of the same State
claiming Lands under Grants of different States, and
between a State, or the Citizens thereof, and foreign
States, Citizens or Subjects.
In all Cases affecting Ambassadors, other publie
Ministers and Consuls, and those in which a State shall
be Party, the supreme Court shall have original Juris-
diction. In all the other Cases before mentioned, the
supreme Court shall have appellate Jurisdiction, both
as to Law and Fact, with such Exceptions, and under
such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeach-
ment, shall be by Jury; and such Trial shall be held in
the State where the said Crimes shall have been com-
mitted; but when not committed within any State, the
Trial shall be at such Place or Places as the Congress
may by Law have directed.
UNITED STATES CONSTITUTION, 10TH AMEND.
MENT:
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are re-
served to the States respectively, or to the people.
(Ratified December 15, 1791.)
B2
ILLINOIS CONSTITUTION OF 1970—ARTICLE V,
SECTIONS 1 AND 15:
THE EXECUTIVE
Section 1. OFFICERS
The Executive Branch shall inelude a Governor, Lieu-
tenant Governor, Attorney General, Secretary of State,
Comptroller and Treasurer elected hy the electors of
the State. They shall keep the public records and main-
tain a residence at the seat of government during their
terms of office,
Section 15. ATTORNEY GENERAL—DUTIES
The Attorney General shall be the legal officer of the
State, and shall have the duties and powers that may be
preseribed by law.
STATUTES OF THE UNITED STATES
FEDERAL RULES OF CRIMINAL PROCEDURE,
RULE 17(c):
For Production of Documentary Evidence and
of Objects. A subpoena may also command the person
to whom it is directed to produce the hooks, papers,
documents or other objects designated therein. The
court on motion made promptly may quash or modify
the subpoena if compliance would be unreasonable or
oppressive. The court may direct. that books, papers,
documents or objects designated in the subpoena be
produced before the court at a time prior to the trial
or prior to the time when they are to be offered in evi-
dence and may upon their production permit the books,
papers, documents or objects or portions thereof to he
inspected by the parties and their attorneys.
a
at es dl
a
e/a ee a s
B3
FEDERAL RULES OF CRIMINAL PROCEDURE,
RULE 27:
PROOF OF OFFICIAL RECORD
An official record or an entry therein or the lack of
such a record or entry may be proved in the same man-
ner as in civil actions,
FEDERAL RULES OF CIVIL PROCEDURE, RULE
44(a) (1):
PROOF OF OFFICIAL RECORD
(a) Authentication,
(1) Domestic. An official record kept within the
United States, or any state, district, commonwealth,
territory, or insular possession thereof, or within the
Panama Canal Zone, the Trust Territory of the Pacific
Islands, or the Ryukyu Islands, or an entry therein,
when admissible for any purpose, may be evidenced by
an official publication thereof or by a copy attested by
the officer having the legal custody of the record, or by
his deputy, and accompanied by a certificate that such
officer has the custody. The certificate may be made by a
judge of a court of record of the district or political
subdivision in which the record is kept, authenticated
hy the seal of the court, or may be made by any public
officer having a seal of office and having official duties
in the district or political subdivision in which the rec-
ord is kept, authenticated by the seal of his office.
FEDERAL RULES OF EVIDENCE, RULE 902
SELF-AUTHENTICATION
Extrinsie evidence of authenticity as a condition preced-
ent to admissibility is not required with respect to the fol-
lowing:
(1) Domestic public documents under seal. A docu-
ment bearing a seal purporting to be that of the United
B4
States, or of any State, district, Commonwealth, terri-
tory, or insular possession thereof, or the Panama
Canal Zone, or the Trust Territory of the Pacific
Islands, or of a political subdivision, department, offi-
cer, or agency thereof, and a signature purporting to
be an attestation or execution.
(2) Domestic public documents not under seal. A
document purporting to bear the signature in his official
capacity of an officer or employee of any entity in-
cluded in paragraph (1) hereof, having no seal, if a
public officer having a seal and having official duties in
the district or political subdivision of the officer or em-
ployee certifies under seal that the signer has the offi-
cial capacity and that the signature is genuine.
(3) Foreign public documents. A document pur-
porting to be executed or attested in his official capacity
by a person authorized by the laws of a foreign country
to make the execution or attestation, and accompanied
by a final certification as to the genuineness of the
signature and official position (A) of the executing or
attesting person, or (B) of any foreign official whose
certificate of genuineness of signature and official posi-
tion relates to the execution or attestation or is in a
chain of certificates of genuineness of signature and
official position relating to the execution or attestation.
A final certification may be made by a secretary of
embassy or legation, consul general, consul, vice consul,
or consular agent of the United States, or a diplomatic
or consular official of the foreign country assigned or
accredited to the United States. If reasonable oppor-
tunity has been given to all parties to investigate the
authenticity and accuracy of official documents, the
court may, for good cause shown, order that they be
treated as presumptively authentic without final certi-
fication or permit them to be evidenced by an attested
summary with or without final certification.
(4) Certified copies of public records. A copy of an
official record or report or entry therein, or of a docu-
whe wrk ate.
Th Sani sae Rds De Mae ake
Bd
ment authorized by law to be recorded or filed and
actually recorded or filed in a public office, including
data compilations in any form, certified as correct by
the custodian or other person authorized to make the
certification, by certificate complying with paragraph
(1), (2), or (3) of this rule or complying with any Act
of Congress or rule prescribed by the Supreme Court
pursuant to statutory authority.
(5) Official publication. Books, pamphlets, or other
publications purporting to be issued by public author-
ity.
(6) Newspapers and periodicals. Printed materials
purporting to be newspapers or periodicals.
(7) Trade inscriptions and the like. Inscriptions,
signs, tags, or labels purporting to have been affixed in
the course of business and indicating ownership, con-
trol, or origin.
(8) Acknowledged documents. Documents aecom-
panied by a certificate of acknowledgment executed in
the manner provided by law by a notary publie or other
officer authorized by law to take acknowledgments.
(9) Commercial paper and related documents. Com-
mercial paper, signatures thereon, and documents re-
lating thereto the extent provided by general commer-
cial law.
(10) Presumptions under Acts of Congress. Any
signature, document, or other matter declared by Act
of Congress to be presumptively or prima facie genu-
ine or authentic.
28 USCA, Section 1739:
State and Territorial nonjudicial records; full faith
and credit
All nonjudicial records or books kept in any public
office of any State, Territory, or Possession of the
United States, or copies thereof, shall be proved or ad-
B6
mitted in any court or office in any other State, Terri-
tory, or Possession by the attestation of the custodian
of such records or books, and the seal of his office an-
nexed, if there be a seal, together with a certificate of
a judge of a court of record of the county, parish, or
district in which such office may be kept, or of the Gov-
ernor, or secretary of state, the chancellor or keeper of
the great seal, of the State, Territory, or Possession
that the said attestation is in due form and by the prop-
er officers.
If the certificate is given by a judge, it shall be further
authenticated by the clerk or prothonotary of the court,
who shall certify, under his hand and the seal of his
office, that such judge is duly commissioned and quali-
fied; or, if given by such Governor, secretary, chancel-
lor, or keeper of the great seal, it shall be under the
great seal of the State, Territory, or Possession in
which it is made.
Such records or books, or copies thereof, so authenti-
cated, shall have the same full faith and eredit in every
court and office within the United States and its Terri-
tories and Possessions as they have by law or usage in
the courts or offices of the State, Territory, or Posses-
sion from which they are taken.
Ill. Rev. Stat. (1977) ch. 15 § 303-2:
§ 3-2. Mandatory and directed post audits.) The
Auditor General shall conduct a financial audit of each
State agency at least once during every biennium, ex-
cept as is otherwise provided in regulations adopted
under Section 3-8. In the conduct of financial audits,
the Auditor General may inquire into and report upon
matters properly within the scope of a management or
program audit, provided that such inquiry shall be
limited to matters arising during the ordinary course
of the financial audit.
The Auditor General shall conduct a management
or program audit of a State agency when so directed
a ak is
#
é
y
B7
by the Commission, or by either house of the General
Assembly, in a_ resolution identifying the subject,
parties and scope. Such a directing resolution may:
(a) require the Auditor General to examine and
report upon specific management efficiencies or cost
effectiveness proposals specified therein ;
(b) in the ease of a program audit, set forth speci-
fic program objectives, responsibilities or duties or
may specify the program performance standards or
program evaluation standards to be the basis of the
program audit;
(c) be directed at particular procedures or func-
tions established by Statute, by administrative regula-
tion or by precedent;
(d) require the Auditor General to examine and
report upon specific proposals relating to state pro-
grams specified in the resolution.
The Commission may by resolution clarify, further
direct, or limit the scope of any audit directed by a
resolution of the House or Senate, provided that any
such action by the Commission must be consistent with
the terms of the directing resolution.
The Auditor General shall conduct such post audits
as are required as a condition of grants to State agen-
cies by the federal government or any agency thereof
if the cost of those audits is reimbursed to the State
by the federal government or is reimbursable from
federal funds, or, if not on such a reimbursement basis,
with the approval of the Commission. Such post audits
inay be conducted only within the limitations and
standards established by this Act or within the terms
of regulations adopted pursuant to this Act.
B8
Illinois State Records Act—Ill. Rev. Stat. 1977, Ch. 116,
§§ 43.4-43.28:
STATE RECORDS ACT
AN ACT relating to State records, providing for a
State Archives division of the office of Secretary of
State, creating the State Records Commission and de-
fining its powers and duties, providing for a continuing
records and paperwork management program and re-
pealing an Act therein named.
Be it enacted by the People of the State of Illinois
represented in the General Assembly:
43.4 Title] § 1. This Act shall be known as “The
State Records Act.’
43.5 Definitions.] § 2. For the purposes of this Act:
‘‘Secretary’’ means Secretary of State.
‘Record’? or ‘records’? means all books, papers,
naps, photographs, or other official documentary mate-
rials, regardless of physical form or characteristies,
made, produced, executed or received by any ageney in
the State in pursuance of state law or in connection with
the transaction of publie business and preserved or
appropriate for preservation by that agency or its sue-
cessor as evidence of the organization, function, policies,
decisions, procedures, operations, or other activities of
the State or of the State Government, or because of the
informational data contained therein. Library and
museum material made or acquired and preserved sole-
ly for reference or exhibition purposes, extra copies of
documents preserved only for convenience of reference,
and stocks of publications and of processed documents
are not included within the definition of records as
used in this Act.
‘‘Agency” means all parts, boards, and commissions
of the executive branch of the State government inelud-
ing but not limited to all departments established by
the ‘‘Civil Administrative Code of Tlinois.”’ as hereto-
fore or hereafter amended.
“SaaS ow
oid ATIVAN ARE a Sal Ba lat acaeet eas aa
ed are Sadat
B9
‘*Public Officer” or ‘‘publie officers’? means all offi-
cers of the executive branch of the State government,
all officers created by the ‘Civil Administrative Code
of Illinois,’’ as heretofore or hereafter amended,’ and
all other officers and heads, presidents, or chairmen of
boards, commissions, and agencies of the State govern-
ment.
‘‘Commission’? means the State Records Commis-
sion.
‘‘Archivist’’ means the Secretary of State.
43.6 Reports and records of obligation, receipt and
use of public funds as public records.] § 3. Reports
and records of the obligation, receipt and use of publie
funds of the State are public records available for in-
spection by the public. These records shall be kept at
the official place of business of the State or at a desig-
nated place of business of the State. These records shall
be available for public inspection during regular office
hours except when in immediate use by persons exer-
cising official duties which require the use of those
records. The person in charge of such records may re-
quire a notice in writing to be submitted 24 hours prior
to inspection and may require that such notice specify
which records are to be inspected. Nothing in this sec-
tion shall require the State to invade or assist in the
invasion of any person’s right to privacy. Nothing in
this Section shall be construed to limit any right given
by statute or rule of law with respect to the inspection
of other types of records.
Warrants and vouchers in the keeping of the State
Comptoller may be destroyed by him as authorized in
‘‘An Act in relation to the reproduetion and destrue-
tion of records kept by the Comptroller’, approved
August 1, 1949, as now or hereafter amended.
43.7 Right of access by public—Reproductions—
Fees.) § 4. Any person shall have the right of access
1. Chapter 127, § 1 et seq.
1. Chapter 15, § 25 et seq.
B10
to any public records of the expenditure or receipt of
public funds as defined in Section 3' for the purpose of
obtaining copies of the same or of making photographs
of the same while in the possession, custody and con-
trol of the lawful custodian thereof, or his authorized
deputy. The photographing shall be done under the
supervision of the lawful custodian of said records,
who has the right to adopt and enforce reasonable rules
governing such work. The work of photographing
shall, when possible, be done in the room where the
records, documents or instruments are kept. However,
if in the judgment of the lawful} custodian of the ree-
ords, documents or instruments, it would be impossible
or impracticable to perform the work in the room in
which the records, documents oy instruments are kept,
the work shall be done in some other room or place as
nearly adjacent as possible to the room where kept.
Where the providing of a separate room or place is
necessary, the expense of providing for the same shall
be borne by the person or persons desiring to photo-
graph the records, documents or instruments, The law-
ful custodian of the records, documents or instruments
may charge the same fee for the services rendered by
him or his assistant in supervising the photographing
as may be charged for furnishing a certified copy or
copies of the said record, document or instrument. In
the event that the lawful custodian of said records shall
deem it advisable in his judgment to furnish photo-
graphs of such publie records, instruments or docu-
ments in lieu of allowing the same to be photographed,
then in such event he may furnish photographs of such
records and charge a fee of 35¢ per page when the page
to be photographed does not exceed legal size and $1.00
per page when the page to be photographed exceeds
legal size and where the fees and charges therefor are
not otherwise fixed by law.
43.8 State Archives Division—Creaticn.] § 5. The
Secretary of State shall provide for a State Archives
1. Section 43.6 of this chapter.
B11
Division as a repository of State records. The State
Archives may utilize space in the Archives Building or
other building as may be necessary or appropriate for
the purpose, in the opinion of the Secretary of State.
43.9 Secretary of State to be State Archivist—As-
sistants.] § 6. The Secretary of State shall be the
State Archivist and Records Adininistrator and he
shall appoint such assistants. who shall be technically
qualified and experienced in the control and manage-
ment of archival materials and in records inanagement
practices and techniques, as are necessa ry to carry out
his duties as State Archivist.
43.10 Powers and duties.] § 7. The Secretary:
(1) whenever it appears to him to be in the publie
interest, may accept for deposit in the State Archives
the records of any agency or of the Legislative or Judi-
cial branches of the State government that are deter-
mined by him to have sufficient historical or other value
to warrant the permanent preservation of such records
by the State of Illinois;
(2) may accept for deposit in the State Archives offi-
cial papers, drawings, maps, writings, and records of
every description of counties, municipal corporations,
political subdivisions and courts of this State, and ree-
ords of the federal government pertaining to Illinois,
when such materials are deemed by the Secretary to
have sufficient historical or other value to warrant their
continued preservation by the State of Illinois.
(3) whenever he deems it in the public interest, may
accept for deposit in the State Archives motion picture
films, still pictures, and sound recordings that are ap-
propriate for preservation by the State government as
evidence of its organization, functions and policies.
(4) shall be responsible for the custody, use, servic-
ing and withdrawal of records transferred for deposit
in the State Archives. The Secretary shall observe any
rights, limitations, or restrictions imposed by law re-
lating to the use of records, but he shall not impose
ai
B12
restrictions or limitations on the use of records that are
defined by law as public records or as records open to
public inspection;
(5) shall make provision for the preservation, ar-
rangement, repair, and rehabilitation, duplication and
reproduction, description, and exhibition of records
deposited in the State Archives as may be needed or
appropriate;
(6) shall make or reproduce and furnish upon de-
mand authenticated or unauthenticated copies of any
of the documents, photographic material or other ree-
ords deposited in the State Archives, the public exam-
ination of which is not prohibited by statutory limita-
tions or restrictions or protected by copyright. The
Secretary shall charge a fee therefor in accordance
with the schedule of fees in Section 10 of “An Act con-
cerning fees and salaries, and to classify the several
counties of this state with reference thereto,” approved
March 29, 1872, «.; amended,’ except that there shall be
no charge for making or authentication of such copies
or reproductions furnished to any department or
agency of the State for official use. When any such copy
or reproduction is authenticated by the Great Seal of
the State of Illinois and is certified by the Secretary,
or in his name by his authorized representative, such
copy or reproduction shall he admitted in evidence as
if it were the original.
(7) any official of the State of Illinois may tarn over
to the Secretary of State, with his consent, for perma-
nent preservation in the State Archives, any official
books, records, documents, original papers, or files, not
in current use in his office, taking a receipt therefor.
43.11 Preservation of records.] § 8. The head of
each agency shall cause to be made and preserved rec-
ords containing adequate and proper documentation of
the organization, functions, policies, decisions, proce-
dures, and essential transactions of the agency de-
1. Chapter 53, § 24.
LL ey
Natwilees eral \
SRS A eee ee ES ua Bae ee: tite Siu htt ees *
ery
ve”
B13
signed to furnish information to protect the legal and
financial rights of the state and of persons directly af-
fected by the agency’s activities,
This section shall not be construed to prevent the
legal disposal of any records determined by the agency
and by the Commission not to have sufficient value to
warrant their continued preservation by the State or
by the agency concerned.
43.12 Programs for efficient management of rec-
ords.] § 9. The head of each agency shall establish,
and maintain an active, continuing program for the
economical and efficient management of the records of
the agency.
Such program:
(1) shall provide for effective controls over the cre-
ation, maintenance, and use of records in the conduct
of current business;
(2) shall provide for cooperation with the Secretary
in applying standards, procedures, and techniques to
improve the management of records, promote the main-
tenance and security of records deemed appropriate for
preservation, and facilitate the segregation and dis-
posal of records of temporary value;
(3) shall provide for compliance with the provisions
of this Act and the rules and regulations issued there-
under.
43.13 Transfer of agency records.] § 10. When-
ever the head of an agency determines that substantial
economies or increased operating efficiency can be ef-
fected thereby, he may, subject to the approval of the
Secretary, provide for the storage, care, and servicing
of records that are appropriate therefore in a records
center operated and maintained by the Secretary.
43.14 Records not to be damaged or destroyed.]
§ 11. All records made or received by or under the
authority of or coming into the custody, control or pos-
session of public officials of this State in the course of
B14
their public duties are the property of the State and
shall not be mutilated, destroyed, transferred, removed
or otherwise damaged or disposed of, in whole or in
part except as provided by law.
43.15 Surveys of management and disposal prac-
tices.] § 12. The Secretary shall make continuing
surveys of State records management and disposal
practices and obtain reports thereon from agencies.
43.16 Improvement of management practices and
security of records.] § 13. The Secretary, with due
regard to the program activities of the agencies con-
cerned, shall make provision for the economical and
efficient management of records of State agencies by
analyzing, developing, promoting, coordinating, and
promulgating standards, procedures, and techniques
designed to improve the management of records, to in-
sure the maintenance and security of records deemed
appropriate for ‘preservation, and to facilitate the
segregation and disposal of reeords of temporary
value. The Secretary shall aid also in promoting the
efficient and economical utilization of space, equipment,
and supplies needed for the purpose of creating, main-
taining, storing, and servicing records,
43.17 Standards for retention.] § 14. The Secre-
tary shall establish standards for the selective reten-
tion of records of continuing value and assist agencies
in applying such standards to records in their custody.
43.18 Records centers.] § 15. The Secretary shall
establish, maintain, and operate records centers for
the storage, care, and servicing of records of State
agencies pending their deposit in the State Archives
or the disposition of such records in any other manner
authorized by law. The Secretary may establish, main-
tain, and operate centralized microfilming services for
agencies.
43.18a System for protection and preservation of
records—Establishment.] § 15a. The Secretary of
1
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$
4
ean. awe annie EA >
ARSENE
DRIES
B15
State, and State Archivist, shall establish a system for
the protection and preservation of essential State rec-
ords necessary for the continuity of governmental
functions in the event of an emergency arising from
enemy action or natural disaster and for the reestab-
lishment of State government thereafter.
43.18b Records essential for emergency government
operation—Determination.] § 15b. The Secretary
shall:
(1) Determine what records are ‘essential’ for
emergency government operation through consultation
with all branches of government, State agencies, and
with the State Civil Defense Agency.
(2) Determine what records are ‘essential’ for
post-emergency government operations and provide for
their protection and preservation.
(3) Establish the manner in which essential ree-
ords for emergency and post-emergency government
operations shall be preserved to insure emergency use-
ability.
(4) Require every State agency to establish and
maintain an essential records preservation program.
(9) Provide for security storage or relocation of
essential State records in the event of an emergency
arising from enemy attack or natural disaster.
43.19 State Records Commission—Membership—
Meetings—Duties.] § 16. There is created the State
Records Commission. The Commission shall consist of
the following members: The Secretary of State, or his
representative, who shall act as chairman; the State
Historian, who shall serve as secretary; the State
Treasurer, or his authorized representative; the Direc-
tor of Finance, or his authorized representative; the
Attorney General, or his authorized representative ;
and the State Comptroller, or his authorized repre-
sentative. The Commission shall meet whenever called
B16
by the chairman, who shall have no vote on matters
considered by the Commission. It shall be the duty of
the Commission to determine what records no longer
have any adininistrative, legal, research, or historical
value and should be destroyed or disposed of other-
wise,
43.20 Disposal and reproduction of records—Regu-
lations.] § 17. Regardless of other authorization to
the contrary, no record shall be disposed of by any
agency of the State, unless approval of the State Rec-
ords Commission is first obtained. The Commission
shall issue regulations, not inconsistent with this Act,
which shall be binding on all agencies. Such regula-
tions shall establish procedures for compiling and sub-
mitting to the Commission lists and schedules of rec-
ords proposed for disposal; procedures for the physi-
cal destruction or other disposition of records proposed
for disposal; and standards for the reproduction of
records by photography or microphotographic proc-
esses with the view to the disposal of the original ree-
ords. Such standards shall relate to the quality of film
used, preparation of the records for filming, proper
identification matter on the records so that an indi-
vidual document or series of documents ean be located
on the film with reasonable facility, and that the copies
contain all significant record detail, to the end that the
photographic or microphotographie copies will be ade-
quate.
Such regulations shall also provide that the State
archivist may retain any records which the Commission
has authorized to be destroyed, where they have a his-
torical value, and that the State archivist may deposit
them in the State Library or State historical museum
or with a historical society, museum or library.
43.21 Reports and schedules to be submitted by
agency heads.] § 18. The head of each agency shall
submit to the Commission, in accordance with the regu-
pea OE
penta ad Se otal ataa aR ae as
PR TT Oe ee
re See
1.
B17
lations of the Commission, lists or schedules of records
in his custody that are not needed in the transaction of
current business and that do not have sufficient admin-
istrative, legal or fiseal value to warrant their further
preservation. The head of each agency also shall sub-
mit lists or schedules proposing the length of time each
record series warrants retention for administrative,
legal or fiscal purposes after it has been received by
the agency.
43.22 Disposition of reports and schedules.] § 19.
All lists and schedules submitted to the (Commission
shall be referred to the Archivist who shall ascertain
whether the records proposed for disposal have value
to other agencies of the State or whether such records
have research or historical value. The Archivist shall
submit such lists and schedules with his recommenda-
tions in writing to the Commission; and the final dis-
position of such records shall be according to the or-
ders of the Commission.
43.23 Destruction of non-record materials.] § 20.
Nonrecord materials or materials not included within
the definition of records as contained in this Act may
be destroyed at any time by the agency in possession of
such materials without the prior approval of the Com-
mission. The Commission may formulate advisory pro-
cedures and interpretation to guide in the disposition
of non-record materials.
43.24 Disposal of records—Consent of agency
head.] § 21. The Archivist shall submit to the Com-
mission, with his recommendations in writing, disposal
lists of records that have been deposited in the State
Archives as provided in subsections (1), (2), and (3) of
Section 7 of this Act,’ after having determined that the
records concerned do not have sufficient value to war-
rant their continued preservation by the State. How-
ever, any records deposited in the State Archives by
any agency pursuant to the provisions of subsection (1)
Section 43.10 of this chapter.
1.
x,
i
B18
of Section 7 of this Act shall not be submitted to the
Commission for disposal without the written consent of
the head of such agency.
43.25 Disposition of records of terminated state
agency.) § 22. Upon the termination of any State
agency whose function or functions have not been trans-
ferred to another agency, the records of such termi
nated agency shall be deposited in the State Archives.
The Commission shall determine which records are of
sufficient legal, historical, administrative, or fiseal
value to warrant their continued preservation by the
State. Records that are determined to be of insufficient
value to warrant their continued preservation shall be
disposed of as provided in Section 17 of this Act.’
43.26 Repeal—Saving clause] § 23. “An Act
creating the State Records Commission and defining its
powers and duties,’’ approved July 23, 1943, as amend-
ed, is repealed,’ but all orders heretofore isseued by the
State Records Commission created by said Aet shall
stand and continue to be in full force and effect.
43.27 Penalty for violation.] § 24. Any officer or
employee who violates the provisions of Section 3 of
this Act’ is guilty of a Class B misdemeanor.
43.28 Partial invalidity.] § 25. The invalidity of
any section or part or portion of this act shall not
affect the validity of the remaining sections or parts
thereof.
Section 43.20 of this chapter.
Sections 39-43.3 of this chapter.
Chapter 116, § 43.6.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.