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Owen v. Mann





Original action for mandamus.


Rehearing denied March 29, 1985.

Robert D. Owen and International Harvester Company, plaintiffs, request the issuance of a writ of mandamus or, in the alternative, a supervisory order compelling Judge Richard E. Mann, of the Sangamon County circuit court, to vacate his order of July 19, 1984. The order was entered in a defamation action filed by William G. Starnes (hereinafter referred to as respondent), a judge of the St. Clair County circuit court, against Owen and International Harvester Company (hereinafter referred to as petitioners). Judge Mann's order required Owen to answer respondent's interrogatories and to comply with his request to produce certain documents, including Owen's communications with the Judicial Inquiry Board (Board).

The basis for petitioners' challenge is article VI, section 15(c), of the Illinois Constitution. (Ill. Const. 1970, art. VI, sec. 15(c).) They assert that Judge Mann's order violates section 15(c) insofar as it requires Owen to reveal communications between himself and the Board, and, therefore, they request that the order be vacated. In the alternative, petitioners request that we order Judge Mann to dismiss the action, claiming that Owen's statements to the Board are absolutely privileged and cannot serve as the basis for a defamation action.

Owen, an attorney, defended International Harvester Company during the trial of a products liability case in St. Clair County. The case was presided over by Judge Starnes. Following the trial, respondent Starnes filed a two-count complaint on June 18, 1982, in Madison County against petitioners. The case was later transferred to Sangamon County. The complaint alleged in relevant part that petitioners composed "certain false and defamatory letters" stating that respondent "was guilty of judicial misconduct, amounting to a criminal offense" and submitted the letters to the Board. The complaint further alleged that, in addition to publishing the letters to the Board, petitioners "did utter the same false and defamatory words orally to numerous persons." The allegedly defamatory statements reportedly concerned respondent's conduct during the trial of the products liability action involving International Harvester.

Respondent, on February 17, 1983, served written interrogatories and a request to produce upon Owen. The interrogatories sought the identity of all persons with whom Owen conversed regarding Starnes. The request to produce, in pertinent part, sought any information in Owen's possession which was "sent to the Illinois Judicial Inquiry Board in any way relating to the conduct of [respondent] at anytime in the past," as well as any information in his possession which related to respondent's conduct during the trial. Owen objected to Starnes' discovery requests, contending primarily that any statements made to the Board were privileged.

On May 24, 1984, Judge Mann allowed petitioners' motions to dismiss respondent's complaint for failure to state a cause of action and allowed Starnes leave to file an amended complaint. Prior to the filing of the amended complaint, respondent, on June 4, 1984, filed a motion to compel Owen to answer the interrogatories and produce the written documents first requested in February 1983. Judge Mann held a hearing on the motion on July 6, 1984. Owen testified at the hearing that he gave certain information relating to respondent's conduct to the Board. He testified that he did not discuss the matter with any other person. No one else testified at the hearing. Judge Mann entered an order on July 19, 1984, overruling Owen's objections based on privilege. Owen was ordered to answer the interrogatories and produce the documents sought by the respondent.

Subsequent to our allowing Owen to file his complaint, respondent filed an amended two-count complaint in the circuit court against petitioners. It alleges that Owen's statements to the Board about respondent consisted of charges concerning the alleged improper supervision of the jury during deliberation and the electronic surveillance of jury deliberations via closed circuit television; ex parte communications with opposing counsel and the jury; and Starnes' alleged participation in a media campaign against International Harvester. The amended complaint alleges that the same statements also were made to "numerous persons," including the United States Department of Justice.

The supporting record thus reveals that when the July 19 order was entered directing Owen to comply with respondent's discovery request, there was no complaint on file. Respondent's complaint had been dismissed earlier, on May 24, 1984, for failure to state a cause of action. Respondent did not file an amended complaint until sometime after July 19. Under the above circumstances, we do not see how the trial court could have determined whether respondent's discovery request was proper in scope. Supreme Court Rule 201(b)(1) states that the scope of discovery is limited to "any matter relevant to the subject matter involved in the pending action." (87 Ill.2d R. 201(b)(1).) Rule 201(b)(1) is founded on the basic premise that the objective of discovery is the "expeditious and final determination of controversies in accordance with the substantive rights of the parties." (Monier v. Chamberlain (1966), 35 Ill.2d 351, 357.) Thus, discovery should only be utilized to "illuminate the actual issues in the case." (Sarver v. Barrett Ace Hardware (1976), 63 Ill.2d 454, 460.) Without a complaint on file, the trial court could not determine whether respondent's discovery request was relevant to any issue in the case. It was, therefore, error for the trial court to grant respondent's motion before an amended complaint was filed. As such, we believe it would not be improper for this court to issue a writ of mandamus or supervisory order directing the trial judge to vacate the July 19, 1984, order. (Cf. People ex rel. General Motors Corp. v. Bua (1967), 37 Ill.2d 180, 192-94.) Nevertheless, we are hesitant to issue a writ solely on this basis.

Ordinarily, mandamus will not lie to correct an abuse of discretion (People ex rel. Daley v. Schreier (1982), 92 Ill.2d 271, 275), and it is not normally used to regulate discovery in the trial court (Balciunas v. Duff (1983), 94 Ill.2d 176, 188). Furthermore, petitioners present issues of vital importance to the administration of justice which, if not passed on here, will likely be raised by these petitioners again by way of another petition for mandamus. For these reasons, we address petitioners' arguments.

Before turning to petitioners' contentions, however, we consider respondent's argument that this is not an appropriate case for the exercise of original jurisdiction. Respondent maintains that an issue of fact exists as to whether Owen made defamatory statements about respondent to persons other than the Board. He argues that mandamus is improper when there are issues of fact to be decided. We agree with that statement of law. (See Touhy v. State Board of Elections (1976), 62 Ill.2d 303, 312.) We disagree, however, with the contention that petitioners' complaint presents an issue of fact. Petitioners' complaint for mandamus is limited to Owen's communications with the Board, and we note at the outset that we are considering the propriety of the trial court's order solely as it relates to Owen's communications with the Board. Further, we consider the issue presented "to be of considerable importance to the administration of justice." (People ex rel. Carey v. Covelli (1975), 61 Ill.2d 394, 401.) Hence, mandamus may be issued even in the absence of all the normal criteria. (People ex rel. Daley v. Schreier (1982), 92 Ill.2d 271, 275.) And, if the issuance of mandamus is not warranted, this court may, in an appropriate case, exercise its supervisory power and grant the requested relief. See, e.g., Balciunas v. Duff (1983), 94 Ill.2d 176, 189; Marshall v. Elward (1980), 78 Ill.2d 366, 375.

Petitioners contend that Judge Mann's order violates article VI, section 15(c), of our constitution (Ill. Const. 1970, art. VI, sec. 15(c)) insofar as it requires Owen to reveal communications between himself and the Board. They accordingly request that the trial court's order be vacated.

Article VI, section 15, of the Illinois Constitution provides for a comprehensive system of judicial discipline. Prior to the adoption of section 15 in 1970, the prosecution and adjudication of alleged judicial misconduct was carried on under the auspices of this court. (See People ex rel. Harrod v. Illinois Courts Commission (1977), 69 Ill.2d 445, 464-67; G. Braden and R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 373-76 (1969).) Section 15, in contrast, provides for an independent and autonomous two-tiered system of judicial discipline. (People ex rel. Judicial Inquiry Board v. Courts Commission (1982), 91 Ill.2d 130, 136.) The adjudicative function is performed by a Courts Commission (Commission). The Commission's decisions regarding discipline are rendered only after notice and a public hearing, and its decisions are final. (Ill. Const. 1970, art. VI, secs. 15(e), (f).) The authority to investigate, charge and prosecute judges before the Commission for alleged misconduct is vested in the Board. (Ill. Const. ...

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