Opposition Brief — Cronson v. Madden

4 FILED

2 JM 22 967

No. 86-1773 JOSEPH F. SPAMIOL, J

Ix Tue

Supreme Court of the Anited States

Ocroser Term, 1986

ROBERT G. CRONSON, Auditor General

of the State of Illinois,

Petitioner,

vs.

WILLIAM M. MADDEN, Acting Director of the

Administrative Office of the Illinois Courts,

Respondent.

On Petition For A Writ Of Certiorari

To The Illinois Supreme Court

RESPONDENT'S BRIEF IN OPPOSITION

Ricuarp J. PHELAN *

Mary Katuryn KELLY

PHELAN, POPE & JOHN, LTD.

180 North Wacker Drive

Suite 500

Chicago, Illinois 60606

(312) 621-0700

Attorneys for Respondent

* Counsel of Record

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

i

QUESTION PRESENTED

Whether this Court should interfere in the proceedings

of the Supreme Court of Illinois, when such proceedings

involve wholly state interests and raise issues which turn

exclusively on state law.

ii

PARTIES TO THE PROCEEDINGS

William M. Madden is the respondent herein. William

M. Madden is the Acting Director of the Administrative

Office of the Illinois Courts.

ill

TABLE OF CONTENTS

QUESTION PRESENTED ...................

PARTIES TO THE PROCEEDINGS .........

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SUPPLEMENTAL STATEMENT OF CASE ...

REASONS WHY THE WRIT

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Petitioner Does Not Have Standing To

Maintain His Action In Federal Court ..

The Alleged Bias Of The Illinois Supreme

Court Does Not Warrant This Court’s Re-

view Of A State Law Matter ........

Principles Of Comity And Federalism Re-

quire That The Supreme Court Of Illinois

ey

The Rule Of Necessity Supports The Dis-

position Of This Case By The Supreme

RE I MINE oct arensusdcsnsvees

uence deaseca

APPENDIX A: Petition for Writ of Mandamus ..

14

la

iv

TABLE OF AUTHORITIES

CASES: PAGE

Aetna Life Insurance Co. v. Lavoie, ___ U.S.

ee ee ee I ac wc hc haeu hax 11, 12

Cronson v. Clark, 810 F.2d 662 (7th Cir. 1987) .. 4

Federal Trade Commission v. Cement Institute,

333 U.S. 683, 68 S.Ct. 793 (1948) .......... 11, 12

Huffman v. Pursue, 420 U.S. 592, 95 S.Ct. 1200

SE i eS bea oes ae CO a eR a RNS 9, 10

Judice v. Vail, 430 U.S. 327, 97 S.Ct. 1211 (1977) . 9g

Marbury v. Madison, 5 U.S. 187, 1 Cranch 137

DU irc uh cee uh cay hipaa Cie as alae 13

Middlesex County Ethics Committee v. Garden

State Bar Association, 457 U.S. 423, 102 S.Ct.

Re eer re er ee ree 9, 10

People v. Dunne, 258 Ill. 441, 101 N.E. 560 (1913) .

People v. Potts, 264 Ill. 522, 106 N.E. 524 (1914) .

People v. Russell, 294 Ill. 283, 128 N.E. 495 (1920) .

Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911

= PPAR Py Sp tiecte pipeyee agers be isp SPAR Nearer 9

Tumey v. Ohio, 273 U.S. 510, 47 S.et. 487 (1927) . 11

United States v. Will, 449 U.S. 200, 101 S.Ct. 471

So er ee Tree rere TT eee rr rT rT ere error eee 13

v

CONSTITUTIONAL PROVISIONS:

| se es re rrerrerety Terrie 2, 3,6

Be Ga i We kn Sawn enka duetouaenas 6

STATUTORY PROVISIONS:

Ill. Rev. Stat. ch. 15, § 301-2 (1985) ........... 6, 7

OD Ree ee cc cae kGuk eh aeacckeekaeneceure 13

In THE

Supreme Court of the Anited States

Octroser Term, 1986

ROBERT G. CRONSON, Anditor General

of the State of Illinois,

Petitioner,

vs.

WILLIAM M. MADDEN, Acting Director of the

Administrative Office of the Illinois Courts,

Respondent.

On Petition For A Writ Of Certiorari

To The Illinois Supreme Court

RESPONDENT'S BRIEF IN OPPOSITION

This matter is pending on the petition of Robert G.

Cronson for a writ of certiorari to the Illinois Supreme

Court. Respondent William M. Madden submits this re-

sponse in opposition to that petition, and respectfully re-

quests that the petition be denied.

INTRODUCTION

The issue in this case is whether the United States

Supreme Court may direct the Supreme Court of Illinois

in performing its judicial function in a matter which turns

entirely upon issues of state law. The Supreme Court of

-

Illinois retained jurisdiction in this matter and issued a

writ of mandamus against Petitioner. Petitioner sought

injunctive relief against the Illinois Supreme Court in the

United States District Court for the Central District of

Illinois and the United States Court of Appeals for the

Seventh Circuit. Both the district court and the court of

appeals ruled that this case lies outside the jurisdiction

of the federal courts. The disposition of the purely state

issues in this case by the IlKnois Supreme Court does not

warrant this Court’s review.

SUPPLEMENTAL STATEMENT OF CASE

This case arises out of a dispute between the Auditor

General and the Supreme Court of Illinois. Petitioner’s

brief omits several important background facts.

This dispute centers around the Petitioner’s refusal since

1978 to audit public funds which are appropriated by the

Illinois legislature for the administration of Illinois courts.

Petitioner concedes that he has a statutory and constitu-

tional duty to audit these funds. See Petitioner’s Brief,

Appendix Bl at App. 17. See also Ill. Const. art. VIII,

§ 3.1 Petitioner claims that he is entitled to audit fees paid

1 §3. State Audit and Auditor General

(a) The General Assembly shall provide by law for the audit

of the obligation, receipt and use of public funds of the State.

The General Assembly, by a vote of three-fifths of the mem-

bers elected to each house, shall appoint an Auditor General

and nj remove him for cause by a similar vote. The Auditor

General! shall serve for a term of ten years. His compensa-

tion shall be established by law and shall not be diminished,

but may be increased, to take effect during his term.

(Footnote continued on following page)

=

by Illinois attorneys to the Attorney Registration and Dis-

ciplinary Commission (the “‘Commission’’) and the State

Board of Law Examiners (the “Board”’). Petitioner refuses

to audit the funds appropriated by the Illinois legislature

for the administration of the courts of Illinois unless he

is also allowed to audit the registration and application

fees paid by Illinois attorneys to the Commission and the

Board.? Mr. Madden, as the Acting Director of the Ad-

ministrative Office of the Illinois courts, commenced a

mandamus proceeding in the Supreme Court of Illinois

to compel Petitioner to perform his statutory duties and

constitutional duties to audit the funds appropriated by

the legislature for the functioning of the Illinois courts.

See Petition for Writ of Mandamus (Appendix A attached

at p. la). The mandamus action filed by Madden did not

involve any issue regarding an audit of the Commission

and the Board.

Petitioner thereafter filed a motion to dismiss in the

Supreme Court of Illinois. Petitioner’s motion requested

the Supreme Court to dismiss the mandamus action on

the basis of the Court’s disqualification on due process

grounds. The motion was denied. Petitioner then filed a

complaint in federal district court under 42 U.S.C. § 1983

and requested that the district court enjoin the proceed-

ings in the Supreme Court of Illinois. The district court

denied Petitioner’s request.

' continued

(b) The Auditor General shall conduct the audit of public

funds of the State. He shall make additional reports and in-

vestigations as directed by the General Assembly. He shall

report his findings and recommendations to the Gisavel As-

sembly and to the Governor.

2 The issue as to whether Petitioner is entitled to audit the Com-

mission and the Board is the subject of state court litigation in

a case entitled, Chic Bar Association, et al. v. Robert G. Cronson,

No. 82 L 50131 (filed July 26, 1982).

ps

Petitioner appealed from the federal district court to the

United States Court of Appeals for the Seventh Circuit

under 28 U.S.C. § 1292(aX1). The court of appeals dis-

missed the case for lack of jurisdiction.

While Petitioner was attempting to seek relief in the

federal courts, the Supreme Court of Illinois proceeded

with the mandamus case before it and scheduled oral argu-

ments. Petitioner refused to appear at the Illinois Supreme

Court’s hearing, and continues to refuse to perform the

duties which he admits he has an obligation to perform.

REASONS WHY THE WRIT

SHOULD BE DENIED

1. Petitioner Does Not Have Standing To Maintain

His Action In Federal Court.

Petitioner lacks the proper standing to maintain this ac-

tion in federal court. As the Seventh Circuit noted in up-

holding the federal district court’s denial of Petitioner’s

attempt to enjoin the Illinois Supreme Court from pro-

ceeding in the mandamus action, ‘[Petitioner’s] dispute

simply has no place in federal court.”’ Cronson v. Clark,

810 F.2d 662 (7th Cir. 1987). According to the Seventh

Circuit Court of Appeals, Petitioner failed to demonstrate

“the kind of actual or threatened injury that would sup-

port a lawsuit under traditional principles of common law

or equity....” Jd. at 3. The only relief sought by Madden

in the mandamus action was to compel Petitioner to per-

form a duty he admits he possesses. Petitioner believes

his authority is more expansive and refuses to comply

a

with his statutory obligations to audit the appropriated

funds until he is allowed to audit the funds paid by Illi-

nois attorneys for the operation of the Board and the

Commission. However, the court of appeals expressly re-

jected Petitioner’s claim of greater auditing authority as

a basis for a due process claim:

The cerms “liberty” and “property” do not encom-

pass the interest of a public official in being allowed

to act to the full extent of what he conceives to be

his powers under state law. The federal courts do

not sit to resolve intramural disputes among state

officials over the bounds of their authority under

state law. Whether Mr. Cronson is told to conduct

a full audit, a partial audit, or no audit, there is no

way he can show a deprivation of his life, liberty,

or property, which is a precondition to complaining

of a denial of due process of law under the Fifth or

Fourteenth Amendments. Id. at 4.

Petitioner further claims the issuance of a writ of man-

damus by the Supreme Court of Illinois adversely reflects

on his performance and threatens his property and liber-

ty interests (Pet. Br. at 24). He also maintains that he

will violate his duty if he obeys the writ of mandamus

which was issued by the Supreme Court of Illinois (Pet.

Br. at 25). The writ of mandamus was issued, however,

for the very reason that Petitioner failed to perform the

audit of the public funds appropriated for the operation

of the Illinois courts as required by Illinois law. Petitioner

will not violate his duty by obeying the writ of mandamus.

In fact, Petitioner has violated his duty and continues to

violate his duty by refusing to comply with the writ. Any

injury to Petitioner results from his own refusal to audit

the funds appropriated by the legislature for the adminis-

tration of the state courts. Thus, Petitioner has no injury

for which he may seek relief in the federal courts.

a

. 2. The Alleged Bias Of The Illinois Supreme Court

Does Not Warrant This Court’s Review Of A State

Law Matter.

Petitioner seeks to disqualify the Supreme Court of Illi-

nois from hearing this case on the grounds that the Justices

have prejudged the issues and have a personal interest

in the outcome of this case. Neither argument has merit.

Article VI, Section 4, of the Illinois Constitution grants

the Illinois Supreme Court jurisdiction over any man-

damus action which seeks to force an official to comply

with his official responsibilities. For example, in People

v. Russell, 294 Ill. 288, 128 N.E. 495 (1920), the Illinois

Supreme Court issued a writ of mandamus to compel the

Auditor General to issue a permit to organize a state

bank.

Article VIII, Section 3, of the Illinois Constitution* and

the provisions of the State Auditing Act, Ill. Rev. Stat.

ch. 15, § 301-2 (1985),5 require the Auditor General to

3 §4. Supreme Court—Jurisdiction

(a) The Supreme Court may exercise original jurisdiction in

cases relating to revenue, mandamus, prohibition or habeas

corpus and as may be necessary to the complete determina-

tion of any case on review.

4 Supra note 1, at 2.

5 301-2. Purpose and construction

§ 1-2. Purpose and construction.

(a) This Act implements Article VIII, Section 3 of the Con-

stitution, and shall be construed in furtherance of those pro-

visions.

(b) This Act is intended to provide a comprehensive and

thorough ong audit of the obligation, expenditure, receipt and

use of public funds of the State under the direction and con-

trol of the Auditor General, to the end that the government

of the State of Illinois will be accountable to the General As-

(Footnote continued on following page)

auiliitin

audit the funds appropriated by the General Assembly for

the administration of the Illinois courts. Petitioner does

not dispute this fact and indeed admits that he has a duty

to audit such funds.

The very purpose of a writ of mandamus is to force an

official to fulfill his statutory duties. People v. Dunne, 258

Ill. 441, 101 N.E. 560 (1913). A writ of mandamus by its

nature does not confer any new authority, but merely re-

quires the performance of an already existing duty. A writ

will not be issued if it will interfere with the discretionary

decisions of state officials. People v. Potts, 264 Ill. 522,

106 N.E. 524 (1914). In the present case, however, there

is no discretionary authority in question. The Illinois Con-

stitution absolutely requires the Auditor General to per-

form the audit in question.

Moreover, Petitioner’s recitation of “evidence” showing

the Illinois Supreme Court’s prejudgment and bias misses

the issue that was being litigated. The Illinois Supreme

Court’s alleged prejudgment concerns only the authority

of Petitioner to audit the funds paid by Illinois attorneys

in the functioning of the Board and the Commission, and

does not relate to the obligation of Petitioner to audit the

funds appropriated by the Illinois legislature for the oper-

ation of the Illinois courts. There could be no prejudg-

ment of the issues raised in the mandamus action because

5 continued

sembly and the citizens and taxpayers, and to the end that

the constitutional and statutory requirements governing state

fiscal and financial operations will be enforced.

(c) This Act is intended to govern the Auditor General under

the control and direction of the General Assembly. Neither the

enactment of this Act nor any provision contained herein shall

in any way derogate from the status of the Auditor General

as a legislative officer of the State under the Constitution.

oe

the Illinois Constitution and the State Auditing Act re-

quire, as Petitioner admits, the audit of the appropriated

funds. The Illincis Supreme Court had no discretion in

determining whether the writ should issue. The Illinois

Constitution and the provisions of the State Auditing Act

require the Auditor General to perform the audit of the

funds appropriated in the administration and operation of

the Illinois courts. The Illinois Supreme Court had no

choice under the Illinois Constitution but to issue a writ

of mandamus to force the Auditor General to perform his

legal duties. Hence, the alleged personal interests of the

Justices in this case in no way affected the proceeding

or the outcome and should not be considered.

3. Principles Of Comity And Federalism Require That

The Supreme Court Of Illinois Proceed In This

Case.

Notwithstanding the absence of merit in Petitioner’s

claims of bias by the Supreme Court of Illinois, principles

of comity® and federalism’ support the refusal of the dis-

trict court and the Seventh Circuit Court of Appeals to

interfere with the rulings of the Illinois Supreme Court

§ “Comity” has been defined as, “(a] proper respect for state func-

tions, a recognition of the fact that the entire country is made

of a Union of separate state governments, and a continuance

of the belief that the National Government will fare best if the

States and their institutions are left free to perform their sepa-

1 ee in their separate ways.” Younger v. Harris, 401 U.S.

at 44.

7 “Federalism” has been defined as, “(a] system in which there

is sensitivity to the legitimate interests of both State and National

Governments, and in which the National Government, anxious

though it may be to vindicate and protect federal rights and fed-

eral interests, always endeavors to do so in ways that will not

unduly interfere with the legitimate activities of the States.” Jd.

sane

=

and similarly require a denial of the petition for writ of

certiorari. This Court has consistently determined that

federal courts should not intervene in state proceedings

which involve important state interests unless Petitioner

does not have an adequate remedy at law and will suffer

great and immediate irreparable injury. Younger v. Harris,

401 U.S. 37, 91 S.Ct. 746 (1971); Huffman v. Pursue, 420

U.S. 592, 95 S.Ct. 1200 (1975); Judice v. Vail, 430 U.S.

327, 97 S.Ct. 1211 (1977); Trainor v. Hernandez, 431 U.S.

434, 97 S.Ct. 1911 (1977). This Court consistently defers

to the interests of the state sovereignty and seeks to up-

hold the integrity of state judiciaries. As Justice Black

indicated in Younger v. Harris, 401 U.S. at 45,

“fijt has been perfectly natural for our cases to re-

peat time and time again that the normal thing to

do when federal courts are asked to enjoin pending

proceedings in state courts is not to issue such in-

junctions. ”

This Court recognizes that state courts are competent to

handle federal constitutional issues, particularly in light

of the fact that such decisions are reviewable by this

Court. Huffman v. Pursue, 420 U.S. 592, 95 S.Ct. 1200

(1975). State courts are entrusted with the protection of

federal constitutional rights and the federal courts will

only interfere in “extraordinary circumstances.’’® Middle-

sex County Ethics Committee v. Garden State Bar Associ-

ation, 457 U.S. 423, 102 S.Ct. 2515 (1982).

Whether such extraordinary circumstances are present

initially involves an examination of the state’s interests

in the proceedings. Where important state interests are

8 Extraordinary circumstances have been construed to entail bad

faith prosecutions, harassing litigation or a ey unconstitu-

anes ey none of which exist in this case. Huffman v. Pursue,

S. at 611.

nlite

. implicated, the federal courts should abstain from inter-

fering unless there is a showing that Petitioner does not

have an adequate remedy at law and will suffer great,

immediate and irreparable injury. Middlesex County

Ethics Committee v. Garden State Bar Association, 457

U.S. 423, 102 S.Ct. 2515 (1982); Huffman v. Pursue, 420

U.S. 592, 95 S.Ct. 1200 (1975); Younger v. Harris, 401

U.S. 37, 91 S.Ct. 746 (1971).

Petitioner does not contest the substantiality of the

state’s interests in this case. The state of Illinois has an

extremely important interest in the proper performance

of the statutory duties of public officials such as the Au-

ditor General. The Auditor General serves an important

role in the government insuring the protection of public

funds. The very fact that state officials are involved in

this controversy demonstrates the state’s interests in this

case. Middlesex County Ethics Committee v. Garden State

Bar Association, 457 U.S. 423, 102 S.Ct. 2515 (1982).

Thus, in order to warrant federal interference, the burden

is on the Petitioner to show that he has no adequate

remedy at law and that he will suffer great, immediate

and irreparable harm. The Petitioner has failed to satisfy

these requirements.

Petitioner has available an adequate remedy at law, and

in fact has availed himself of that remedy. The fact that

the Petitioner filed a motion to dismiss this action with

the Illinois Supreme Court demonstrates the Petitioner’s

belief that the state court is the proper forum for the

resolution of this dispute. Petitioner’s petition for writ of

certiorari is motivated purely by his dissatisfaction with

the-outcome at the state court level.

Notwithstanding the fact that he has already made use

of the state court forum, Petitioner claims that the IIli-

nois Supreme Court failed to provide him with a fair hear-

eee

alton

ing. Petitioner maintains that the Justices of the Supreme

Court of Illinois prejudged the issues in this case and thus

violated his due process rights under the Fourteenth Amend-

ment. The rulings of this Court have squarely rejected

the notion that prejudgment of the issues alone is suffi-

cient to rise to the level of a constitutional deprivation.

This Court requires a showing of an additional pecuniary

interest in order to implicate the Fourteenth Amendment.

Federal Trade Commission v. Cement Institute, 333 U.S.

683, 68 S.Ct. 793 (1948); Tumey v. Ohio, 273 U.S. 510,

47 S.Ct. 487 (1927); Aetna Life Insurance Co. v. Lavoie,

__ U.S. ___, 106 S.Ct. 1580 (1986).

In Federal Trade Commission, this Court addressed the

issue as to whether prejudgment of the issues rises to

the level of a deprivation of Fourteenth Amendment due

process rights. In that case, the FTC charged the defen-

dants with antitrust violations and commenced proceedings

against the defendants. The defendants asked the Com-

mission to disqualify itself from the proceedings claiming

that the Commission had prejudged the issues as to the

possible antitrust violations. When the Commission refused

to disqualify itself, defendants sought judicial relief and

introduced numerous reports and testimony that demon-

strated that the Commission believed the defendants had

violated antitrust laws. This Court noted that most matters

concerning judicial disqualifications do not implicate the

constitutional provisions and indicated:

“{No] decision of this Court would require us to hold

that it would be a violation of procedural due process

for a judge to sit in a case after he had expressed

an opinion as to whether certain types of conduct

were prohibited by law.”

The present case is very similar to Federal Trade Com-

mission in that Petitioner has introduced numerous ex-

hibits tending to show that the Justices of the Supreme

Court of Illinois had formed an opinion concerning the

dispute. However, as Federal Trade Commission demon-

strates, that fact alone does not amount to a due process

violation absent a showing of an additional pecuniary inter-

est. This principle was again articulated in Aetna Life In-

surance Co. v. Lavoie, ___. U.S. ___, 106 S.Ct. 1580

(1986). In Aetna, as in this case, the Justices were ac-

cused of having a personal ‘interest in the outcome of the

dispute. This Court explained that disqualifica*ion is re- -

quired under the due process clause when “a direct, per-

sonal, substantial and pecuniary interest” is present. Jd.

at 1586-88.

These cases demonstrate this Court’s rule that the pos-

sibility of prejudgment of issues alone is not a sufficient

basis for the violation of Fourteenth Amendment due process

rights. A more substantial pecuniary interest is required

before the Fourteenth Amendment is implicated. The

Justices of the Supreme Court of Illinois do not have any

pecuniary interest in the outcome of this case. In fact,

the Petitioner admits that the Justices of the Supreme

Court of Illinois lack a pecuniary interest in the outcome

of this dispute (Pet. Br. at 21). The only issue involved

is the proper function and performance of a state official’s

statutory duty, a duty the Petitioner admits he possesses.

Nothing more is at stake in this case and thus no ques-

tions of due process violations are present.

4. The Rule Of Necessity Supports The Disposition Of

This Case By The Supreme Court Of Illinois.

Even assuming that Petitioner can present a credible

argument that the Justices of the Supreme Court of Illi-

nois had a personal and pecuniary interest in the outcome

~~

of this case, the Rule of Necessity requires that the Illi-

nois Supreme Court proceed in this case. The Rule of

Necessity allows an official to decide an issue notwith-

standing a personal interest in the outcome. In United

States v. Will, 449 U.S. 200, 101 S.Ct. 471 (1980), thirteen

federal judges challenged the validity of a statute which

decreased their compensation. The district court granted

summary judgment in favor of the judges and that deci-

sion was appealed directly to this Court. The issue before

this Court was whether under 28 U.S.C. § 455, which pro-

vides that any justice or judge of the United States shall

remove himself from hearing a case in which his objec-

tivity may reasonably be questioned including situations

where he has an interest as a party or has some finan-

cial interest. This Court stated that all federal judges had

a financial interest in the resolution of the dispute. Thus,

their impartiality was questioned. However, this Court

determined that the federal court system was the appro-

priate forum for the case under the Rule of Necessity.

This Court in Will noted:

“{AJjnd we would not casually infer that the Legisla-

tive and Executive Branches sought by the enact-

ment of § 455 to foreclose federal courts from exer-

cising ‘the province and duty of the judicial depart-

ment to say what the law is.’ ”

Will, 449 U.S. at 217, citing Marbury v. Madison, 5 US.

137, 1 Cranch 137, 177 (1808).

In this case, however, no credible argument can be

made that the Illinois Supreme Court Justices had a pecu-

niary or personal interest in the litigation before it. If

the Justices of the Supreme Court of Illinois have any

interest at all it is merely an indirect interest because

the funds which are the subject of the mandamus action

are appropriated for the operation of the Illinois Courts.

=

Petitioner’s claim of bias on the basis of the Illinois Su-

preme Court’s statements that the Auditor General has

no authority to audit the funds of the Commission and

the Board is irrelevant to this dispute as the audit of

those funds was not the subject of the mandamus action.

Any interest of the Illinois Supreme Court in the man-

damus action is not pecuniary or personal in nature and

does not implicate the due process clause of the Four-

teenth Amendment. See supra, pp. 11-12. The mandamus

action was entirely a matter of the proper limits of a state

official’s authority under state law. That issue is inherent-

ly an internal Illinois state matter and was properly re-

solved by the Illinois Supreme Court.

CONCLUSION

For all the foregoing reasons, Respondent William M.

Madden, respectfully requests that the Court deny the

petition for a writ of certiorari.

Respectfully submitted,

RICHARD J. PHELAN *

Mary Katuryn KELLY

PHELAN, POPE & JOHN, LTD.

180 North Wacker Drive

Suite 500

Chicago, Illinois 60606

(312) 621-0700

Attorneys for Respondent.

* Counsel of Record

—ia—

APPENDIX A

IN THE SUPREME COURT

OF ILLINOIS

WILLIAM M. MADDEN, Acting

Director of the Administrative

Office of the Illinois Courts,

Plaintiff,

vs. No.

ROBERT G. CRONSON, Auditor

General of the State of Illinois,

Defendant.

me me ee ee ee ee ee ee ee ee”

PETITION FOR WRIT OF MANDAMUS

Plaintiff, William M. Madden, Acting Director of the

Administrative Office of the Illinois Courts, by his attor-

neys, Phelan, Pope & John, Ltd., complains of the defen-

dant, Robert G. Cronson, Auditor General of the State

of Illinois, and states as follows:

1. This is an action to compel the Auditor General of

the State of Illinois to conduct an audit of the funds ap-

propriated by the Illinois General Assembly and expended

by the Administrative Office of the Illinois Courts. An

audit of those funds is required by Article VIII, §3 of

the Constitution of the State of Illinois and the provisions

of the State Auditing Act. Il]. Rev. Stat. Chap. 15 §301.

2. This Court has jurisdiction by reason of Article VI,

§4 of the Illinois Constitution, which confers original juris-

diction in the Illinois Supreme Court over any action in

=n PQ

the nature of mandamus to compel an official of the State

of Illinois to perform duties owed to the public.

3. Plaintiff, William M. Madden, is Acting Director of

the Administrative Office of the Illinois Courts. In that

capacity, he has responsibility, under the supervision of

the Supreme Court of Illinois, of obtaining from the IIli-

nois Legislature the necessary appropriations for the oper-

ation of the judicial branch of Illinois state government.

In addition, he has the responsibility of supervising the

expenditure of those state funds appropriated for the oper-

ation of the judicial branch and the payment of all em-

ployees of the judicial branch.

4. Defendant, Robert G. Cronson, is Auditor General

of the State of Illinois. Under Article VIII, §3 of the Consti-

tution of the State of Illinois he is required to ‘‘conduct

the audit of the public funds of the State.” In addition,

under the provisions of the State Auditing Act, IIl. Rev.

Stat., Chap. 15 §301, the Illinois Auditor General is re-

quired to conduct a financial audit of all agencies created

by the Illinois Constitution, including those within the

judicial branch.

5. During the period from 1968 through June 30, 1978,

the Office of the Auditor General conducted financial audits

at the end of each fiscal year of all funds appropriated

by the Illinois General Assembly and expended by the

Administrative Office of the Illinois Courts.

6. From the end of fiscal year 1979 to the present, the

Office of the Auditor General has failed to conduct an

audit of funds appropriated by the Illinois General As-

sembly and expended by the Administrative Office of the

Illinois Courts.

7. By letter dated, December 11, 1985, Roy O. Gulley,

then Director of the Administrative Office of the Illinois

Courts, wrote to Robert G. Cronson, Auditor General of

Illinois, requesting that the Office of Auditor General con-

duct a complete audit of the funds appropriated by the

Illinois General Assembly and expended by the Adminis-

trative Office of the Illinois Courts. Mr. Gulley specifically

requested Mr. Cronson to conduct an audit of the sub-

semnatiicctinea il Bite ce

=

ject funds at the end of his tenure as Director of the Ad-

ministrative Office of Illinois Courts and prior the assump-

tion of that office by plaintiff, William M. Madden, See

letter of Roy O. Gulley dated December 11, 1985, attached

hereto as Exhibit A.

8. By letter dated December 16, 1985 from Robert G.

Cronson, Illinois Auditor General, to Roy O. Gulley, Mr.

Cronson refused to conduct the audit of the funds appro-

priated by the Illinois General Assembly and expended

by the Administrative Office of the Illinois Courts as re-

quested by Mr. Gulley in his letter dated December 11,

1985 and as required by Article VIII, §3 of the Constitu-

tion of the State of Illinois and the provisions of the State

Auditing Act. See letter of Robert G. Cronson dated De-

cember 16, 1985, attached hereto as Exhibit B.

9. Notwithstanding his constitutional and statutory

duties and the specific request made upon him, the Illi-

nois Auditor General has failed and refused to conduct

an audit of the funds appropriated by the Illinois General

Assembly and expended by the Administrative Office of

the Illinois Courts.

10. Plaintiff has suffered and will continue to suffer ir-

reparable injury if defendant is not required to perform

his constitutional and statutory duties to audit the funds

appropriated by the Illinois General Assembly and ex-

pended by the Administrative Office of the Illinois Courts.

WHEREFORE, plaintiff prays for judgment requiring

defendant to perform his constitutional and statutory duties

to conduct an audit of the monies appropriated to and ex-

pended by the Administrative Office of the Illinois Courts

and for other equitable relief as the Court deems appro-

priate.

/s/ RICHARD J. PHELAN.

PHELAN, POPE & JOHN, LTD.

180 North Wacker Drive

Suite 500

Chicago, Illinois 60606

(312) 621-0700