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In Re Report of the Grand Jury

OPINION FILED JULY 30, 1982.

IN RE REPORT OF THE GRAND JURY OF MARSHALL COUNTY. — (MARSHALL COUNTY GRAND JURY EX REL. EDWARD ZUKOSKY, PETITIONER-APPELLANT,

v.

EDWARD E. HAUGENS, JUDGE, RESPONDENT-APPELLEE.)



Appeal from the Circuit Court of Marshall County; the Hon. Edward E. Haugens, Judge, presiding.

JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:

On November 4, 1981, the Marshall County Grand Jury met in session. After conferring, they came before Circuit Judge Edward E. Haugens, the then presiding judge of Marshall County. The foreman wanted to file a report approved by a quorum of the grand jury. *fn1 After reading it, Judge Haugens took the matter under advisement. On December 24, 1981, he issued an order which barred the filing of that report with the Marshall County Circuit Court Clerk. The Marshall County State's Attorney, on behalf of the grand jury, then filed a notice of appeal from that order.

The appellee, Judge Haugens, filed a motion to dismiss the appeal. He maintains the order appealed from is an administrative order which is not final. Thus, Judge Haugens concludes we are without subject matter jurisdiction to entertain this appeal. Appellant filed a response. This motion was taken with the case.

Two questions are presented, both procedural. The first is whether we have an actual case or controversy that may be the subject of an appeal. The second is conditional. If we have a case for resolution, did the report of the grand jury qualify as an official document for filing with the circuit clerk?

The facts in this cause stem from the nature of the grand jury's report. We have a copy of it before us. The report recounts two cultural maladies confronting many counties today: namely, drug and alcohol abuse. In sum, the report recommends:

1. The Marshall County School Board institute drug and alcohol education programs with local police and the State's Attorney's Office.

2. The Marshall County Board permit the sheriff's office to join the "MEG Unit," a multi-county law enforcement cadre.

3. Parents must be reminded to discipline their children.

4. Drug and alcohol use should be deemphasized by the media.

5. The sheriff should get a pay raise and more deputies hired to fight local crime.

Apparently, the grand jury sought to file this general, social document as a blueprint for what it believed were effective methods of alleviating some of the county's ills. The State's Attorney, as petitioner on behalf of the grand jury, contends the grand jury had the authority to make such a report. Consequently, he concludes, the report should have been filed as a public record.

After reading the grand jury report, Judge Haugens determined it was not a true bill of indictment, a no-bill, or report on the conditions of the county jail. In other words, Judge Haugens concluded the report was not within the statutory duties of the grand jury. Therefore, he instructed the circuit court clerk not to permit the filing of such report.

• 1 Judge Haugens' motion to dismiss is correct. The order forbidding the filing of the report was an administrative ruling. It did not involve the exercise of the court's discretion on a case or controversy. In its present posture, this appeal presents no justiciable controversy. No real adversity exists between the parties. To challenge the non-discretionary refusal to act of a circuit judge or other public official, an appropriate vehicle is for the petitioner to seek a writ of mandamus. Although an extraordinary remedy issued only in the sound discretion of the court, mandamus may issue to compel the performance of a non-discretionary, ministerial duty or act. (Chicago Association of Commerce & Industry v. Regional Transportation Authority (1981), 86 Ill.2d 179, 185.) Such procedure was not followed in this case. Since the order appealed from was administrative and not final, it is not appealable. It does not arise in the context of a case or controversy.

Thus, we rule that the present appeal is not properly before this court. We do not have a case or controversy that is the fit subject of an appeal. In view of the public interest in preserving the integrity and legitimacy of our circuit court records, however, we feel that the second procedural question should be addressed even though such comments constitute dictum. That question is whether the report of the grand ...


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