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Oberman v. Byrne





Appeal from the Circuit Court of Cook County; the Hon. Warren D. Wolfson, Judge, presiding.


Plaintiff, Martin J. Oberman, alderman and taxpayer of the city of Chicago, brought an action seeking writ of mandamus and other relief, compelling defendants, including Jane M. Byrne, mayor of the city of Chicago, and other city officers, to permit inspection and copying of certain public records in their custody. Judgment was entered in favor of plaintiff, and a peremptory writ of mandamus issued commanding defendant, Mayor Jane M. Byrne, to provide plaintiff with copies of records of expenditures from the Chicago appropriation ordinance line item 100-9112.710 for the years 1979, 1980 and 1981, used for the mayor's contingency fund, and from line item 100-9112.801 for the years 1980 and 1981 used for a report by the Hay Associates (hereinafter Hay Reports). Defendants appeal the judgment essentially on grounds that the mayor's contingency fund and the Hay Reports are not subject to public disclosure pursuant to the Illinois Constitution, the Local Records Act, the Municipal Code of Chicago or under Illinois common law.

The pertinent facts are as follows. On October 26, 1981, plaintiff filed a complaint for writ of mandamus and for injunctive relief. According to the complaint, in December 1980, the City Council of Chicago adopted an appropriation ordinance which included the amount of $65,000 for budget line item and account No. 100-9112.710 for "contingent and other expense for corporate purposes not otherwise provided for: to be expended under direction of the Mayor." The complaint stated that in 1979 and 1980, defendant and her predecessor in office had spent amounts of $63,344 and $115,000, respectively, from this, the mayor's contingency fund account. The complaint also stated that the December 1980 appropriation ordinance included an appropriation for 1981 in the amount of $400,000 for budget line item and account No. 100-9112.801 "for the analysis and implementation of improvements in departmental operations and management and personnel practices and controls: to be expended under the direction of the Mayor." A similar appropriation was made for the year 1980 in the amount of $1,400,000. Pursuant to this appropriation, Hay and Associates, an independent consulting firm, was contracted by the mayor to conduct a study and analysis of Chicago personnel practices and thereafter compiled its reports and recommendations. These reports and recommendations are referred to as the "Hay Reports." The complaint further alleged that plaintiff wrote to defendants requesting access to the above records and that his requests were refused. Plaintiff accordingly filed this action seeking access to the requested records.

On November 30, 1981, defendants filed a motion to dismiss the complaint, and on December 11, 1981, plaintiff filed a motion for summary judgment. On March 26, 1982, the motion to dismiss was denied, and summary judgment granted, the trial court entering two orders for mandamus commanding the mayor to provide plaintiff with all records sought in the complaint. Defendants have appealed that portion of the writ of mandamus compelling disclosure of the mayor's contingency fund and the Hay Reports.


The Mayor's Contingency Fund

• 1 Defendants initially argue for the first time on appeal that the plaintiff's complaint is insufficient to support the issuance of the writ because it fails to allege that the particular records sought are either in existence or in the possession of the mayor, and therefore it fails to demonstrate a clear legal duty to disclose such records. Although in an action for a writ of mandamus it is necessary for the plaintiff to demonstrate a clear right to this extraordinary relief (Walter v. Board of Education (1982), 93 Ill.2d 101), an objection which is not preserved in the trial court cannot be raised for the first time on appeal. (Kravis v. Smith Marine, Inc. (1975), 60 Ill.2d 141, 324 N.E.2d 417; Pathman Construction Co. v. Hi-Way Electric Co. (1978), 65 Ill. App.3d 480, 382 N.E.2d 453.) Under the Illinois Civil Practice Law, "[a]ll defects in pleadings, either in form or substance, not objected to in the trial court are waived." (Ill. Rev. Stat. 1981, ch. 110, par. 2-612(c).) Only where a complaint, with all the intendments in its favor, wholly and absolutely fails to state a cause of action at all, can an objection be made to it for the first time on appeal. (Pathman Construction Co.; Village of Hillside v. Chicago, Aurora & Elgin R.R. Corp. (1976), 40 Ill. App.3d 861, 353 N.E.2d 227.) Defendants have not argued here that the complaint competently fails to state a cause of action, nor does their motion to dismiss raise an objection to the sufficiency of the cause of action on the grounds raised here. Accordingly, the issue of the sufficiency of the complaint is not properly before this court for review. We note, however, that with respect to the alleged defect, defendants have not denied the existence of the particular records sought by plaintiff's complaint. In rendering its decision the trial court addressed the issue raised by defendants' brief, stating, "I want to make it clear that I am not requiring the City to create any records or summaries, but only to disclose those documents that do in fact exist." (Emphasis added.) Thus, we find no merit to defendants' contentions premised on the notion that the writ at bar requires the creation of any records, summaries or the like that were not in existence at the time of the instant litigation.

The defendants next argue that the instant action is barred by the doctrine of collateral estoppel. In support of this position defendants refer to the memorandum presented in support of their motion to dismiss. There, defendants informed the trial court that, "In Martin J. Oberman v. Michael Bilandic [circuit court of Cook County] #78 L 3345, the instant plaintiff sought to have a breakdown and itemization from the Mayor's Contingency Fund for two years. The Plaintiff in Oberman v. Bilandic relied on the same authority alleged in the instant case, namely, the Illinois Constitution, the Local Records Act and Section 25-29 of the Municipal Code of the City of Chicago. In Oberman v. Bilandic [the trial judge] granted defendant's Motion to Dismiss and, in effect, held that Plaintiff was not entitled to documentation or a breakdown and itemization from the Mayor's Contingency Fund." In ruling on this point, the trial court in the instant case noted that defendants had failed to furnish sufficient information to provide a basis for ruling on the issue of collateral estoppel. The court stated, "I cannot note from the record in this case — what facts were litigated, how they were litigated, what the actual judgment was, and I don't think it's the court's duty to search out facts not presented to us."

• 2 We have thoroughly examined the record presented on the motion, along with the supporting memorandum and we find that the trial court properly rejected defendants' claim of collateral estoppel. The doctrine generally precludes parties and their privies from relitigating facts in a subsequent action which were specifically litigated and determined in a prior action. (Lange v. Coca-Cola Bottling Co. of Chicago, Inc. (1969), 44 Ill.2d 73, 254 N.E.2d 467; Village of Northbrook v. Cannon (1978), 61 Ill. App.3d 315, 377 N.E.2d 1208.) Here, defendants have failed to support their claim of collateral estoppel in the trial court with a record sufficient to indicate the specific issues of fact determined in the previous litigation. Indeed, from the state of the record, it appears that defendants have not asked the trial court to apply this doctrine to specific facts litigated in the previous litigation at all, but rather have attempted to urge it to follow another court's previous construction of the constitution, a statute, and city ordinances. The construction of a statute, ordinance or constitutional provision is a question of law. (See generally Coalition For Political Honesty v. State Board of Elections (1976), 65 Ill.2d 453, 359 N.E.2d 138; Lipsey v. Michael Reese Hospital (1970), 46 Ill.2d 32, 262 N.E.2d 450; Village of Northbrook; Johnson v. Town of the City of Evanston (1976), 39 Ill. App.3d 419, 350 N.E.2d 70.) Collateral estoppel, however, pertains to the relitigation of facts, not to questions of law. (Village of Northbrook.) Under the circumstances presented here, we believe that the defendants have not only failed to adequately support their claim of collateral estoppel on the record, but have generally misapprehended the applicability of this doctrine to the issues presented in the instant litigation. (See generally Village of Northbrook.) Thus, we turn to the merits of defendants' appeal.

The first issue before us is whether the mayor's contingency fund account for the years in question is subject to disclosure under provisions of the Illinois Constitution, the Local Records Act (Ill. Rev. Stat. 1981, ch. 16, par. 43.101 et seq.), chapter 23, section 7 of the Municipal Code of Chicago, or under Illinois common law.

Article VIII, section 1 of the 1970 Illinois Constitution, provides:

"(a) Public funds, property or credit shall be used only for public purposes.

(b) The State, units of local government and school districts shall incur obligations for payment or make payments from public funds only as authorized by law or ordinance.

(c) Reports and records of the obligation, receipt and use of public funds of the State, units of local government and school districts are public records available for ...

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