# Petition — Scott v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1676%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 1046 ## Text 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 y $ 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1676%3A1. Public record. Not legal advice.