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Cusack v. Howlett

OPINION FILED NOVEMBER 26, 1969.

JOHN F. CUSACK ET AL., APPELLEES,

v.

MICHAEL J. HOWLETT ET AL., APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. WALTER DAHL, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 28, 1970.

This is a statutory taxpayers' action brought by five attorneys to enjoin the expenditure of public funds by a special committee of the House of Representatives of the General Assembly. The circuit court of Cook County granted leave to file the action. (Ill. Rev. Stat. 1967, ch. 102, par. 14.) Thereafter the parties agreed to stand upon their verified pleadings, and the court entered a decree which enjoined the expenditure of public funds in furtherance of the activities of the committee because the resolution establishing it violated the constitution of Illinois. The defendants, who are the members of the legislative committee, the Auditor of Public Accounts and the State Treasurer, have appealed directly to this court.

The text of the House Resolution which authorized the appointment of the committee is as follows:

"House Resolution No. 249.

"WHEREAS, There have been allegations of judicial impropriety by a member or members of the Illinois Supreme Court; therefore be it

"RESOLVED, By the House of Representatives of the Seventy-sixth General Assembly of the State of Illinois, that a special committee of the House be appointed 4 by the Speaker and 3 by the Minority Leader to investigate these allegations and any other matters relating to judicial impropriety; that the Speaker designate a chairman of the special committee; that the special committee have all the powers of other committees of the House; that the special committee shall close to the public any hearing or meeting upon the vote of any four of its members; that the special committee may hire an attorney for purposes of this investigation; that the expenses of the special committee be paid from the appropriation for the ordinary and incidental expenses of the general staff and operation of the House; and that the special committee report and make its recommendations to the House prior to the first day in the year 1970 that the House is in session."

The fundamental question that the case presents is whether the House Resolution is repugnant to article III of the constitution of Illinois, which provides: "The powers of the government of this state are divided into three distinct departments — the legislative, executive and judicial; and no person, or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted."

Before we reach that question, however, we are met by the contention of the defendants that this case, in its present posture, does not present a justiciable issue. This contention rests basically upon the fact that the recent decisions of the Supreme Court of the United States that have considered the authority of congressional investigating committees, have involved direct confrontations between the authority of the legislative committee and the constitutional rights of an individual. (See, e.g., Watkins v. United States (1957), 354 U.S. 178, 1 L.Ed.2d 1273, 77 S.Ct. 1173.) From the discussions in those cases, the defendants derive the proposition that a legislative committee must be "permitted to function unchallenged in the Courts * * * until its functioning clashes directly with an individual's Constitutional rights."

This contention overlooks the fact that a distinct difference has long existed between the Federal requirements of justiciability and those applicable in this State. In 1923 the Supreme Court of the United States held in Massachusetts v. Mellon, 262 U.S. 447, 67 L.Ed. 1078, 43 S.Ct. 597, that a Federal taxpayer has no right to challenge the validity of legislation by reason of his position as taxpayer. A different rule has long obtained in this State. Since 1917, by statute, a taxpayer has been permitted to challenge the validity of legislative action which involves the expenditure of public funds. (Ill. Rev. Stat. 1967, ch. 102, par. 14.) The very first case decided by this court under the 1917 statute involved a taxpayer's action to enjoin the disbursement of public funds by a joint legislative committee of the House and Senate. The court there said: "As the investigation in question was wholly unwarranted and illegal, appellant, as a tax-payer, has a right to resort to a court of equity to prevent the misapplication of public funds in the payment of the expenses of such an investigation." (Greenfield v. Russel (1920), 292 Ill. 392, 402.) And even before the 1917 statute established procedural conditions governing a taxpayer's action, such actions had been regularly recognized. (See Fergus v. Russel (1915), 270 Ill. 304.) The contention that the issue sought to be presented is not ripe for decision is without merit.

The plaintiffs ground their action upon the proposition that the House of Representatives lacks constitutional authority to "investigate judicial improprieties," and in support of that proposition they rely upon several specific provisions of the constitution, in addition to the prohibition of article III against the exercise by one department of governing of "any power properly belonging to either of the others." The committee, on the other hand, justifies the validity of its authorizing resolution in terms of legislative purposes which, it asserts, will be advanced by the investigation which the resolution authorizes.

Although it is impossible to define with precision the limits of legislative power, the authority of legislative investigating committees to ask questions and compel answers, in order to acquire the information necessary for informed legislative action, was regarded as essential by the British Parliament and has been so regarded from the outset by the Congress of the United States. Nevertheless, the exercise of the power in specific instances has never ceased to give rise to heated legislative debate and to difficult judicial determinations. See Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L.R. 152.

Questions as to the authority of the Congress to establish canons of judicial ethics for Federal judges, and to devise a procedure for the determination of judicial misconduct other than the cumbersome process of impeachment, have provided a running debate, sporadically recurrent throughout the generations since the founding of the nation. The story of that debate, implicating as it does the perennial problem of the independence of the judiciary from legislative or executive domination, has recently been recounted. (Kurland, The Constitution and the Tenure of Federal Judges: Some Notes from History, 36 U. of Chgo. L.R. 665.) The ingredients of that continuing debate do not differ basically from the ingredients of the dispute before us. But so far as we have been advised, and so far as we have been able to ascertain, no court has rendered a decision that bears directly on the problem before us.

As pointed out in Watkins v. United States, 354 U.S. 178, 200-1, 1 L.Ed.2d 1273, 1291-2, "The theory of a committee inquiry is that the committee members are serving as the representatives of the parent assembly in collecting information for a legislative purpose. * * * An essential premise in this situation is that the House or Senate shall have instructed the committee members on what they are to do with the power delegated to them. * * * That requires that the instructions to an investigating committee spell out that group's jurisdiction and ...


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