SUPREME COURT OF ILLINOIS
526 N.E.2d 131, 123 Ill. 2d 175, 121 Ill. Dec. 937 1988.IL.971
Original petition for writ of mandamus.
JUSTICE MILLER delivered the opinion of the court.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER
The petitioner, Richard M. Daley, the State's Attorney of Cook County, has brought this original action seeking a writ of mandamus or prohibition or, in the alternative, a supervisory order to compel the respondent, Judge Thomas R. Fitzgerald, to vacate certain orders entered by him on January 29, 1987, and February 9, 1987.
The orders complained of were entered with respect to an action initiated under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, pars. 122-1 through 122-8) by Larry E. Davis in the circuit court of Cook County. After Davis filed the post-conviction petition, his attorney caused subpoenas to be issued for the taking of the discovery depositions of a number of persons who were involved in the original criminal proceeding. Notices of those depositions were given to the State's Attorney, and, after one deposition had been taken, the State moved to quash the remaining subpoenas. Judge Fitzgerald denied the State's motion on January 29, 1987, ruling that the discovery procedures applicable to civil cases applied as well to post-conviction proceedings and that the State had failed to show cause to quash the subpoenas.
The State requested reconsideration of that ruling, and on February 9, 1987, the matter again was presented to Judge Fitzgerald. At the Conclusion of the second hearing, Judge Fitzgerald ruled that the taking of discovery depositions in a post-conviction proceeding was discretionary. The trial Judge granted defendant Davis leave to take the depositions of two other witnesses who had been subpoenaed and allowed the State's motion to quash the subpoenas for the remaining witnesses.
Following the second ruling, the State filed a motion in this court for leave to file the instant complaint for a writ of mandamus or prohibition or, in the alternative, for a supervisory order to compel Judge Fitzgerald to vacate the January 29 and February 9, 1987, orders. (107 Ill. 2d Rules 381, 383.) We allowed the State's motion, and we now consider whether any relief should issue.
The State contends that the trial Judge exceeded his authority in ordering the taking of the two discovery depositions in this case. The State believes that a trial Judge may authorize the taking of evidence depositions, but not discovery depositions, in a post-conviction proceeding, and that evidence depositions may be permitted only when the unavailability requirements of Supreme Court Rule 414(a) have been satisfied (107 Ill. 2d R. 414(a)). In support of that view, the State relies on section 122-6 of the Post-Conviction Hearing Act, which provides that a trial court, in disposing of a post-conviction petition, "may receive proof by affidavits, depositions, oral testimony, or other evidence" (Ill. Rev. Stat. 1985, ch. 38, par. 122-6). Citing People v. Rose (1971), 48 Ill. 2d 300, the State believes that this court has construed the provision in section 122-6 as barring the taking of discovery depositions in post-conviction proceedings.
For the reasons set out below, we conclude that the taking of discovery depositions in post-conviction proceedings is not a matter governed by our rules respecting discovery in criminal or civil actions and that the trial Judge in this case acted within his inherent authority in permitting the discovery depositions to be taken.
The Post-Conviction Hearing Act is silent on the availability of discovery depositions in actions brought under that statute. (Cf. 28 U.S.C. §§ 2254, 2255 (allowing discovery in Federal habeas corpus actions under rule 6 of each provision); 11 U.L.A. 237 (1987 Supp.) (section 8 of Uniform Post-Conviction Procedure Act (1980) authorizes court to allow discovery in post-conviction proceeding).) In People v. Rose (1971), 48 Ill. 2d 300, the post-conviction petitioners had attempted to take discovery depositions of the circuit Judge, bailiff, and prosecutor who were involved in the original trial. Those persons did not appear for the scheduled depositions, however, and the petitioners moved for an order to compel the witnesses' attendance. The motion was denied. Following a hearing, the post-conviction petition was also denied. The petitioners appealed, citing the provision in section 122 -- 6 of the Post-Conviction Hearing Act concerning depositions, in support of their argument that the trial Judge had erred in refusing to compel the witnesses to appear for the depositions. This court rejected the argument, saying:
"In our opinion section 6 of the Post-Conviction Hearing Act contemplates the use of evidence depositions and does not refer to discovery depositions. As with many orders for discovery and the imposition of sanctions for failure to comply therewith, the trial court's refusal to order the witnesses to appear for deposition was an exercise of the court's discretionary powers and its decision should not be reversed unless there has been an abuse of discretion. The witnesses appeared, testified and were cross-examined at length. Under the circumstances shown in this record, the refusal to order the witnesses to appear for deposition was not an abuse of discretion." Rose, 48 Ill. 2d at 302.
Contrary to the State's argument here, we do not interpret Rose as holding that the Post-Conviction Hearing Act permits the taking of evidence depositions only and bars the taking of discovery depositions. Rose simply held that the reference to depositions in section 122 -- 6 of the Act pertained only to evidence depositions; the court did not hold that discovery depositions could never be available in a post-conviction proceeding. Moreover, the court in Rose ruled that the trial Judge had acted within his discretion in refusing to order the witnesses to attend the discovery depositions, and the court did not say that such an order would have been beyond the trial Judge's authority. Clearly, ...