Supreme Court Summaries
Opinions filed March 21, 2013
Ferguson v. Patton, 2013 IL 112488
Appellate citation: 409 Ill. App. 3d 956.
JUSTICE KARMEIER delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, and Garman concurred in the judgment and opinion.
Justices Burke and Theis took no part in the consideration or decision of this case.
This dispute began in 2007 when the Inspector General of the City of Chicago initiated an investigation of possible improprieties with respect to how a former city employee had been awarded a city contract without going through the normal competitive process. Documents were sought from the city’s Law Department, and some information was furnished, but some documents furnished contained redactions, based on the Law Department’s reliance on attorney-client privilege and the work product doctrine. The Inspector General then issued a subpoena, as the Chicago Municipal Code permits, but when the Law Department refused to comply, private lawyers were retained to bring a cause of action against the Corporation Counsel in the circuit court of Cook County. In this action, an order to produce unredacted copies of documents was sought. Ultimately, the circuit court dismissed the cause with prejudice, holding that the Inspector General lacked authority to retain counsel to bring this litigation.
On review, the appellate court concluded the Inspector General was authorized to retain private counsel to initiate this challenge to the Corporate Counsel’s decision to redact the documents. It then ordered a remand for the circuit court to make an in camera inspection of the unredacted documents in order to resolve the claims of privilege which had been asserted. Both sides sought relief in an appeal to the Illinois Supreme Court.
In this decision, the supreme court did not reach the issues of attorney-client privilege and the work product rule. It said that, although the Chicago Municipal Code allows the Inspector General to conduct investigations and issue subpoenas, the Code does not confer the power to unilaterally retain private counsel to initiate enforcement proceedings or prosecutions in the circuit court in the Inspector General’s own name. The office of the Inspector General is a creature of municipal ordinance, not state statute, and has no legal status apart from the city. State statute (the Illinois Municipal Code) gives that authority to Corporation Counsel.
Chicago’s own ordinances could have provided for the resolution of this issue, but have not done so. There are no applicable statutory provisions for the appointment of special counsel, even though the Corporation Counsel, the one subpoenaed, has a conflict of interest in resisting production by claiming a privilege. This lack of remedies, however, does not give the Inspector General a power not conferred. Although the Inspector General’s powers are limited, this is all the power the city has chosen to give him, and the courts cannot give him more. Deficiencies in the structure set up by the city are a matter for the city, not the judiciary, to remedy.
The court said in this decision that the Inspector General should look to the mayor for recourse. The circuit court acted properly in dismissing the suit with prejudice.