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04/17/87 the Wayne Township Board v. Gerald P. Ludwig

April 17, 1987

THE WAYNE TOWNSHIP BOARD OF AUDITORS ET AL., PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES

v.

GERALD P. LUDWIG, CLERK OF WAYNE TOWNSHIP, DEFENDANT (ROY D. PAETH, SUPERVISOR, TREASURER, AND TRUSTEE OF WAYNE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Township, Defendant-Appellee and

Cross-Appellant)

507 N.E.2d 199, 154 Ill. App. 3d 899, 107 Ill. Dec. 535 1987.IL.522

Appeal from the Circuit Court of Du Page County; the Hon. John Teschner, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. DUNN and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

This appeal arises from an award of attorney fees to defendant in a rule to show cause proceeding.

On September 28, 1983, the plaintiffs, Wayne Township board of auditors (board), and certain members of the board individually, brought a complaint for mandamus against defendant Gerald P. Ludwig (Ludwig), in his official capacity as clerk of Wayne Township. The complaint alleged that Ludwig denied them access to public records of the township, specifically records relating to expenditure of public funds. The board argued that access to the records was necessary to comply with their statutory obligation of auditing receipts and disbursements. The complaint alleged that Ludwig had failed to, among other things, respond to oral and written requests to produce records. Furthermore, it was alleged that Ludwig had permitted unauthorized persons access to the records and had permitted the removal of records from township offices.

On February 6, 1984, the members of the board and Ludwig entered into an agreed order and stipulation to dismiss which provided that Ludwig would be the sole custodian of the public records and would allow open and ready access to township trustees and members of the public. The order further provided that Ludwig and his assistant would be the only persons having control and possession of the records and would be the only persons having keys to cabinets where the records were stored. The court retained jurisdiction of the mandamus case for insuring compliance with the order.

Subsequently, the trustees were denied access to certain records consisting of claim sheets, bills, bank statements, checkbooks, and other documents needed by the trustees to make a financial audit. On June 5, 1984, the township attorney wrote a letter to Ludwig outlining his responsibility to produce required public records. The attorney enclosed a copy of the Freedom of Information Act (Ill. Rev. Stat., 1984 Supp., ch. 116, par. 201 et seq.) and mailed copies of the letter and act to each member of the Board.

On June 15, 1984, Ludwig sent a letter to Roy D. Paeth (Paeth), supervisor, treasurer, and trustee of Wayne Township, requesting that certain records in Paeth's possession be returned to the clerk's office. On June 25, 1984, Ludwig again wrote to Paeth requesting the return of township records. On July 3, 1984, the township attorney wrote to Ludwig requesting that the records in Paeth's possession be turned over to the board since they were official records subject to the agreed order entered in the mandamus action and were also required to be produced under the Illinois Freedom of Information Act.

On July 20, 1984, Mary Richardson (Richardson), a member of the board, sent a letter to Ludwig and Paeth requesting certain records needed to complete the audit. In response to this request, Paeth supplied Richardson with some documentation and handwritten answers to her inquiries. On July 25, 1984, Ludwig wrote Paeth again requesting the return of records in Paeth's possession. This letter also advised Paeth that his failure to produce these records would result in litigation.

On July 26, 1984, the board convened a public meeting at which time the records were again requested. No records were produced at that time. On July 28, 1984, Paeth provided Ludwig with a key to his office. Six days later, the records were again requested at another public meeting held by the board.

On August 3, 1984, Richardson filed a petition for a rule to show cause why Ludwig should not be held in contempt for noncompliance with the mandamus order. The trial court ordered Ludwig to respond and scheduled a hearing for August 22, 1984. Ludwig filed a response to the petition alleging that he was unable to provide access since the records sought were in Paeth's possession. On August 22, 1984, Ludwig appeared for hearing and told the court that the records sought were in Paeth's ...


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