Morawicz v. Hynes

Opinion

THIRD DIVISION April 7, 2010

No. 1-09-0316

MARION MORAWICZ and CLARENCE ) APPEAL FROM THE BOWERS, on behalf of themselves and ) CIRCUIT COURT OF all others similarly situated, ) COOK COUNTY Plaintiffs-Appellants, ) ) v. ) No. 07 L 6960 ) DANIEL W. HYNES, as Illinois State ) Comptroller, and ALEXI GIANNOULIAS, ) HONORABLE as Illinois State Treasurer, ) RONALD F. BARTKOWICZ, Defendants-Appellees. ) JUDGE PRESIDING.

JUSTICE STEELE delivered the opinion of the court:

In this case, plaintiffs Marion Morawicz and Clarence Bowers prevailed on a claim against

defendants Daniel W. Hynes and Alexi Giannoulias in their official capacities as Illinois State

Comptroller and Treasurer, respectively, that funds were unlawfully transferred from the Lawyers

Assistance Program (LAP) and the Mandatory Arbitration Fund (MAF) into the state's general

revenue fund. Plaintiffs now appeal orders of the circuit court of Cook County denying a

permanent injunction, interest and attorney fees. For the following reasons, we affirm.

BACKGROUND

The record on appeal discloses the following facts. On July 5, 2007, Morawicz (an

attorney) and Bowers (a party litigant) filed a putative class action against Hynes and Giannoulias

in their official capacities, alleging that funds were unlawfully swept from the LAP and MAF into

the state's general revenue fund. The "sweeps," or fund transfers, were ostensibly authorized by

section 8.45 of the State Finance Act. 30 ILCS 105/8.45 (West 2006). Morawicz and Bowers

alleged that the sweeps of court fees for other purposes violated the state constitution by creating 1-09-0316

an unreasonable or arbitrary tax classification. Morawicz and Bowers sought injunctive relief and

a return of the funds, plus interest, punitive damages, and attorney fees.

On October 4, 2007, Morawicz and Bowers amended their complaint, additionally

claiming standing as taxpayers to challenge sweeps from 95 other state funds specified in section

8.45 of the State Finance Act. Morawicz and Bowers also sought an accounting for LAP and

MAF. On October 15, 2007, Morawicz and Bowers further amended their complaint to

specifically seek a declaration that the amendment of section 8.45 of the State Finance Act (30

ILCS 105/8.45 (West 2006)) by Public Act 94--839 (Pub. Act 94–839, eff. June 6, 2006) was

unconstitutional.

Plaintiffs and defendants filed cross-motions for summary judgment. On October 23,

2007, the circuit court entered an order granting summary judgment to Morawicz and Bowers on

their specific claim that the amendment of section 8.45 of the State Finance Act by Public Act 94-

839 was unconstitutional. However, the circuit court granted summary judgment on that claim

only as to LAP and MAF, on the ground that the sweeps violated the state constitutional

separation of powers. The circuit court found no just reason to delay enforcement or appeal of

the order. 210 Ill. 2d R. 304(a).

Morawicz and Bowers sought to appeal the circuit court order in this court, on the ground

that they did not receive all of the relief they sought. On December 3, 2007, this court entered an

order striking the appeal from this court's docket, because the appeal involved a finding of

unconstitutionality of a portion of a state statute, which requires any appeal be taken directly to

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the Illinois Supreme Court. On March 4, 2008, the Illinois Supreme Court entered an order

transferring the appeal to this court pursuant to Supreme Court Rule 365. 155 Ill. 2d R. 365.

Meanwhile, Morawicz and Bowers continued to seek payment of interest on the funds

swept from LAP and MAF, and that such interest be transferred from the general revenue fund.

On June 18, 2008, the circuit court entered an order: (1) vacating the October 23, 2007, order;

(2) declaring section 8.45 of the State Finance Act unconstitutional as applied to the LAP and

MAF; (3) acknowledging that Hynes and Giannoulias returned $906,000 to MAF and $67,200 to

LAP, constituting compliance with the order; (4) denying the motion for interest; (5) denying

class certification; and (6) acknowledging that plaintiffs' request for attorney fees was subject to

further proceedings.

On November 12, 2008, the circuit court entered an order denying plaintiffs' request for

attorney fees. On November 18, 2008, Morawicz and Bowers filed a notice of appeal to this

court.

DISCUSSION

I

On appeal, Morawicz and Bowers first argue that the Illinois Attorney General may not

represent the Illinois Supreme Court or the LAP in this appeal. The Illinois Attorney General

responds (by an assistant Attorney General) that the office has never purported to represent the

Illinois Supreme Court or the LAP in this litigation. Rather, the Illinois Attorney General has

represented Hynes and Giannoulias in their official capacities.

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Morawicz and Bowers reply that the Illinois Attorney General had an obligation to

provide counsel for the judicial branch or withdraw from the case. However, Morawicz and

Bowers cite no legal authority in support of this assertion. While it is true that the rules

prohibiting an attorney accepting representations that create a conflict between clients applies

generally to the Illinois Attorney General, the office may represent two opposing state agencies in

the same litigation. See Tully v. Edgar, 286 Ill. App. 3d 838, 846, 676 N.E.2d 1361, 1367 (1997)

(and cases cited therein). The Tully court primarily relied on Environmental Protection Agency v.

Pollution Control Board, 69 Ill. 2d 394, 372 N.E.2d 50 (1977), in which the Illinois Supreme

Court stated:

"[A]lthough an attorney-client relationship exists between a State agency and the Attorney

General, it cannot be said that the role of the Attorney General apropos of a State agency

is precisely akin to the traditional role of private counsel apropos of a client. [Citation.]

Indeed, where he or she is not an actual party, the Attorney General may represent

opposing State agencies in a dispute. [Citations.]

The Attorney General's responsibility is not limited to serving or representing the

particular interests of State agencies, including opposing State agencies, but embraces

serving or representing the broader interests of the State. This responsibility will

occasionally, if not frequently, include instances where State agencies are the opposing

parties." Environmental Protection Agency, 69 Ill. 2d at 401, 372 N.E.2d at 52-53.

In this case, the Illinois Supreme Court ruled that the Illinois Attorney General is deemed to have

a conflict of interest only where she is interested as a private individual or is an actual party to the

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action. Environmental Protection Agency, 69 Ill. 2d at 400-01, 372 N.E.2d at 52. Accordingly,

Morawicz and Bowers have not shown that the Illinois Attorney General was under a duty to

withdraw as counsel.

Morawicz and Bowers complain that the Illinois Attorney General failed to protect the

interest of the judicial branch in this litigation. However, counts I and II of their third amended

complaint sought to have funds already transferred from LAP and MAF to the general revenue

fund to be paid to plaintiffs and the plaintiff class. Count IV of the third amended complaint –

asserting taxpayer standing – sought replenishment of the funds, but Morawicz and Bowers do

not challenge the denial of that count on appeal. Count VII of the third amended complaint

sought a declaration that section 8.45 of the State Finance Act as applied to judicial funds violated

the constitutional separation of powers and demanded a "return" of the funds at issue, without

specifying whether the funds were to be returned to the judicial branch or to plaintiffs and the

plaintiff class. As plaintiffs sought to have funds already in the general revenue fund paid to

themselves and the plaintiff class, Morawicz and Bowers have not shown that the Attorney

General was under any legal obligation to provide or secure representation for any part of the

judicial branch where, as here, no such entity was named as a party to the litigation. Indeed, in

this case, the interest of the judicial branch was protected by the circuit court, which ordered that

the transferred funds be returned to the judicial accounts.

Morawicz and Bowers further complain – without citation to the record on appeal – that

on one hand, the Attorney General failed to notify the Illinois Supreme Court that it had the right

to seek the appointment of a Special Attorney General to represent its interest, while complaining

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on the other hand that the Attorney General contacted the Administrative Office of Illinois Courts

about protecting the judicial branch's interest in any sums Morawicz and Bowers sought as

attorney fees. A reviewing court is entitled to have the issues clearly defined with pertinent

authority cited and is not simply a depository into which the appealing party may dump the burden

of argument and research. E.g., Lopez v. Northwestern Memorial Hospital, 375 Ill. App. 3d 637,

648, 873 N.E.2d 420, 431 (2007). Appellate argument must include citation of the authorities

and the pages of the record relied on; points not argued are waived. 188 Ill. 2d R. 341(e)(7);

210 Ill. 2d R. 341(h)(7). The appellants' brief in this case identifies no ruling on these issues to be

appealed and no citation to where they are discussed in the record. Thus, this court shall not

consider them in this appeal.

II

Morawicz and Bowers next argue that the circuit court erred by not entering a permanent

injunction against sweeps from the LAP and the MAF. Hynes and Giannoulias respond that

Morawicz and Bowers abandoned this claim by failing to obtain a ruling on their request. See,

e.g., Mortgage Electronic Systems v. Gipson, 379 Ill. App. 3d 622, 628, 884 N.E.2d 796, 802

(2008). Morawicz and Bowers reply simply that "[d]efendants are wrong."

The record on appeal shows that on October 28, 2008, Morawicz and Bowers filed a

motion asking the court to enter a permanent injunction, with a proposed supplemental order

attached thereto. Morawicz and Bowers have failed to show that the circuit court ever ruled on

their motion. Accordingly, Morawicz and Bowers have abandoned the argument on appeal.

However, even if Morawicz and Bowers had not abandoned the argument, it would not

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persuade this court that the trial court was incorrect on this point. The argument rests on

exceptions to the mootness doctrine, such as the public interest exception, which applies where

the case presents a question of public importance that will likely recur and whose answer will

guide public officers in the performance of their duties, and an exception for cases involving

events of short duration that are capable of repetition, yet evading review. See In re Suzette D.,

388 Ill. App. 3d 978, 983, 904 N.E.2d 1064, 1068 (2009) (and cases cited therein). Morawicz

and Bowers assert that the issue should be "resolved without the necessity of having it litigated

once again when and if the General Assembly and the Governor decided to get together and

remove these funds illegally yet another time." However, as Hynes and Giannoulias note, the very

separation of powers at the heart of this case also means that Illinois courts cannot enjoin either

the General Assembly from passing a bill or the Governor from acting upon it. Spies v. Byers,

287 Ill. 627, 631, 122 N.E. 841, 843 (1919). Furthermore, assuming arguendo that the other

branches of government could attempt to seize judicial funds in the future, Morawicz and Bowers

have failed to show that such attempts would evade review. See In re Donrell S., 395 Ill. App. 3d

599, 603 (2009).

III

Morawicz and Bowers further argue that the circuit court erred in refusing to order that

any interest accrued on the swept funds while in the general revenue fund be deposited with the

LAP and MAF. Hynes and Giannoulias respond that the circuit court ruled correctly as a matter

of law and fact. This court reviews questions of statutory interpretation – and other legal

questions -- de novo, but we review the circuit court's factual findings only to determine if they

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are against the manifest weight of the evidence. See, e.g., DeRose v. City of Highland Park, 386

Ill. App. 3d 658, 660, 898 N.E.2d 1115, 1118 (2008). "A finding is against the manifest weight

of the evidence 'only if the opposite conclusion is clearly evident or if the determination is

unreasonable, arbitrary, and not based on the evidence.' " In re D.W., 386 Ill. App. 3d 124, 139,

897 N.E.2d 387, 400 (2008), quoting In re Tiffany M., 353 Ill. App. 3d 883, 890, 819 N.E.2d

813, 820 (2004).

Section 4.1 of the State Finance Act provides in part as follows:

"Whenever the State Treasurer or other State officer receives interest from the

investment or deposit of moneys received by the State on account of taxes, fees, licenses

or other governmental assessments imposed or levied by the State or any of its agencies or

instrumentalities, the Treasurer shall direct the Comptroller to deposit such interest into

the General Revenue Fund, except where by specific statutory provisions such interest is

directed to be credited to and paid to a particular fund." 30 ILCS 105/4.1(a) (West 2006).

Morawicz and Bowers assert that this statute does "not even arguably address the fees collected

and used improperly and illegally taken from the Judicial System." However, even in this

contention, plaintiffs concede that the funds involved were collected as fees. Morawicz and

Bowers also assert that the "Illinois courts are not part of the Executive or Legislative Branch and

are not therefore an 'agency' of the State of Illinois." But, the judicial branch is as much a part of

the State of Illinois as the other two branches. See, e.g., Ill. Const. 1970 art. II, §1, art. VI, §1.

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In addition, as Hynes and Giannoulias note, the fees collected for LAP and MAF are ultimately

remitted to the State Treasurer. See 705 ILCS 235/20 (West 2006); 735 ILCS 5/2-1009A (West

2006).

In the alternative, Morawicz and Bowers argue that LAP and MAF fall within the

exception provided in section 4.1 of the State Finance Act. They point to section 4 of the Public

Funds Investment Act, which provides as follows:

"All securities purchased under the authority of this Act shall be held for the

benefit of the public agency which purchased them, and if purchased with money taken

from a particular fund, such securities shall be credited to and deemed to be a part of such

fund, and shall be held for the benefit thereof. All securities so purchased shall be

deposited and held in a safe place by the person or persons having custody of the fund to

which they are credited, and such person or persons are responsible upon his or their

official bond or bonds for the safekeeping of all such securities. Any securities purchased

by any such public agency under authority of this Act, may be sold at any time, at the then

current market price thereof, by the governing authority of such public agency. Except as

provided in Section 4.1 of 'An Act in relation to State finance', [citation] all payments

received as principal or interest, or otherwise, derived from any such securities shall be

credited to the public agency and to the fund by or for which such securities were

purchased." 30 ILCS 235/4 (West 2006).

Morawicz and Bowers fail to show that this case involves the purchase of securities, or that any

interest they seek derived from the purchase of securities. Moreover, the plain language of the

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statute shows that section 4.1 of the State Finance Act is an exception to section 4 of the Public

Funds Investment Act, not vice versa.

Morawicz and Bowers also suggest that section 4.1 of the State Finance Act is

unconstitutional as applied to interest accrued on judicial funds. They rely on Crocker v. Finley,

99 Ill. 2d 444, 459 N.E.2d 1346 (1984), in which the Illinois Supreme Court struck down a law

authorizing a $5 circuit court filing fee to fund a domestic violence program. The Crocker court

found the charge violated the Illinois Constitution's due process and equal protection clauses,

because there was no rational relationship between imposition of the fee and litigants which would

support funding of a general welfare program. The Crocker court ruled that "court filing fees and

taxes may be imposed only for purposes relating to the operation and maintenance of the courts."

Crocker, 99 Ill. 2d at 454, 459 N.E.2d at 1351. The supreme court added that "[i]f the right to

obtain justice freely is to be a meaningful guarantee, it must preclude the legislature from raising

general revenue through charges assessed to those who would utilize our courts." Crocker, 99 Ill.

2d at 455, 459 N.E.2d at 1351. The main thrust of the Crocker decision was its holding that the

tax unconstitutionally burdened litigants' access to the courts. Arangold Corp. v. Zehnder, 204

Ill. 2d 142, 150, 787 N.E.2d 786, 792 (2003).

Crocker was not based on a separation of powers claim. The separation of powers clause

of the Illinois Constitution provides that "[t]he legislative, executive and judicial branches are

separate. No branch shall exercise powers properly belonging to another." Ill. Const. 1970, art.

II, §1. Additionally, "[t]he judicial power is vested in a Supreme Court, an Appellate Court and

Circuit Courts." Ill. Const. 1970, art. VI, §1. In " 'both theory and practice, the purpose of the

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[separation of powers] provision is to ensure that the whole power of two or more branches of

government shall not reside in the same hands.' " Best v. Taylor Machine Works, 179 Ill. 2d 367,

410, 689 N.E.2d 1057, 1078 (1997), quoting People v. Walker, 119 Ill. 2d 465, 473, 519 N.E.2d

890, 892 (1988). However, the separation of powers clause does not seek to achieve a complete

divorce among the three branches of government. In re S.G., 175 Ill. 2d 471, 486-87, 677

N.E.2d 920, 927 (1997). Moreover, the clause does not require that governmental powers be

divided into " 'rigid, mutually exclusive compartments.' " In re S.G., 175 Ill. 2d at 487, 677

N.E.2d at 927, quoting Walker, 119 Ill. 2d at 473, 519 N.E.2d at 892. The separation of powers

doctrine allows for the three branches of government to share certain functions. Walker, 119 Ill.

2d at 473, 519 N.E.2d at 892. For example, the legislature has the concurrent constitutional

authority to enact statutes that complement the supreme court's procedural rules. See Walker,

119 Ill. 2d at 475, 519 N.E.2d at 893. However, the legislature is not empowered to enact

statutes that interfere with the procedural administration of the courts. People v. Joseph, 113 Ill.

2d 36, 47, 495 N.E.2d 501, 506 (1986); People v. Warren, 173 Ill. 2d 348, 367, 671 N.E.2d 700,

710 (1996). A statute cannot conflict with court rules or unduly infringe upon inherent judicial

powers. People v. Bainter, 126 Ill. 2d 292, 302-03, 533 N.E.2d 1066, 1070 (1989).

In this case, both the LAP and the MAF are creations of the legislature in the first

instance. Morawicz and Bowers cannot point to any provision of either statute directing that

interest be credited to the LAP and MAF accounts. Morawicz and Bowers cannot point to any

Illinois Supreme Court rule directing that interest be credited to the LAP and MAF accounts.

Morawicz and Bowers have not shown that the disposition of any interest accruing on LAP or

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MAF funds unduly infringes upon inherent judicial powers or unconstitutionally burdens litigants'

access to the courts.

In sum, the circuit court did not err in refusing to order that any interest accrued on the

swept funds while in the general revenue fund be deposited with the LAP and MAF.

IV

Finally, Morawicz and Bowers argue that the trial court erred in denying their request for

attorney fees. Hynes and Giannoulias respond that the circuit court lacked jurisdiction to award

attorney fees and that jurisdiction over the issue rests with the Illinois Court of Claims.

Morawicz and Bowers reply that the circuit court rejected the sovereign immunity argument

Hynes and Giannoulias proffered and that Hynes and Giannoulias forfeited the argument by failing

to appeal the case on its merits. Aside from the fee claim being separable from the merits, this

court has a duty to consider whether the Court of Claims has exclusive jurisdiction over the fee

claim. See Loman v. Freeman, 229 Ill. 2d 104, 128, 890 N.E.2d 446, 462 (2008). This court has

ruled that expenses in civil litigation against the State must be considered a subject matter in

which the Court of Claims is given exclusive jurisdiction. Kadlec v. Illinois Department of Public

Aid, 155 Ill. App. 3d 384, 387, 508 N.E.2d 342, 345 (1987); see also Williams ex rel. Williams v.

Davenport, 306 Ill. App. 3d 465, 468-69, 713 N.E.2d 1224, 1226 (1999) (and cases cited

therein). Accordingly, this court lacks jurisdiction over the attorney fee claim.

CONCLUSION

In sum, Morawicz and Bowers failed to show that the Attorney General was under any

legal obligation to provide or secure representation for the judicial branch in this case. Morawicz

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and Bowers have abandoned the argument that the circuit court should have entered a permanent

injunction in this case by failing to secure a ruling on the issue in the circuit court. The circuit

court did not err in refusing to order that any interest accrued on the swept funds while in the

general revenue fund be deposited with the LAP and MAF. Jurisdiction over the claim for

attorney fees rests with the Illinois Court of Claims. For all of the aforementioned reasons, the

judgment of the circuit court of Cook County is affirmed.

Affirmed.

QUINN and COLEMAN, JJ., concur.

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