Maloney v. Bower

• Citation: 101 Ill.Dec. 594,113 Ill.2d 473,498 N.E.2d 1102
• Decision Date: 17 September 1986
• Docket Number: No. 62469,62469
• Parties: , 101 Ill.Dec. 594 Matthew A. MALONEY, Public Defender, Plaintiff, v. Alexander T. BOWER, Chief Judge, et al., Defendants.
• Court: Supreme Court of Illinois

Page 1102

498 N.E.2d 1102

113 Ill.2d 473, 101 Ill.Dec. 594

Matthew A. MALONEY, Public Defender, Plaintiff, v. Alexander T. BOWER, Chief Judge, et al., Defendants.

No. 62469.

Supreme Court of Illinois.

Sept. 17, 1986.

Matthew A. Maloney, Donald R. Rayfield and Ann Burkey, of counsel, Bureau County Public Defender, Princeton, for plaintiff.

Neil F. Hartigan, Atty. Gen., Roma J. Stewart, Sol. Gen., Mark L. Rotert, Joan G. Fickinger, Asst. Attys. Gen., Chicago, for defendants.

WARD, Justice.

On September 16, 1985, Alexander T. Bower, chief judge of the Thirteenth Judicial Circuit, which is comprised of La Salle, Bureau and Grundy counties, entered an administrative order directing judges of the circuit to appoint the office of the public defender to represent indigent defendants in civil contempt proceedings in which the defendant might be subject to incarceration.

Our constitution provides for administrative authority for chief judges: "Subject to the authority of the Supreme Court, the Chief Judge shall have general administrative authority over his court." (Ill. Const. 1970, art. VI, sec. 7(c).) See also our Supreme Court Rule 21 (103 Ill.2d R. 21). The order which is the subject of the action here reads:

"In civil contempt proceedings where an election might be made to incarcerate the defendant, said judge is to appoint to defend said indigent client the office of the Public Defender of the county of which said case is being tried."

Copies of the order were sent to circuit and associate judges in the Thirteenth Judicial Circuit and to other persons, including the public defenders of La Salle, Bureau and Grundy counties. Copies of the order were accompanied by a letter which in part stated:

"In view of the recent ruling of the Federal Court in the matter of: Sevier vs. Turner, 742 F.2d 262 (Sixth Circuit, 1984), concerning representation of defendants during civil contempt proceedings where an election might be made to incarcerate said defendant, an Administrative Order has been entered authorizing the judges in such cases to appoint the Public Defender to represent such defendants. * * * "

Pursuant to the order, Matthew A. Maloney, the public defender of Bureau County, was appointed to represent Steven Mealman. Upon the appointment Maloney filed a motion for leave to file a complaint with this court for an original writ of prohibition. We granted the motion (87 Ill.2d R. 381).

The plaintiff alleges that on September 25, 1985, Steven Mealman appeared before Judge C. Howard Wampler on a rule to show cause because of failure to pay child support as the court had previously ordered. The judge announced that if he found that Mealman had wilfully failed to pay support when he had the ability to do so, he would be held in contempt of court and "most likely" sentenced to jail or incarcerated until he paid the amount due. Upon learning that Mealman could not afford the services of an attorney the judge appointed Maloney to represent him.

The plaintiff further set out that on September 25, Judge Wampler and Judge James J. Wimbiscus advised the plaintiff that in all civil matters where incarceration might or could be imposed upon an indigent defendant as a result of the defendant's failure to comply with any order entered by them pursuant to the chief judge's order, the plaintiff would be appointed to represent those defendants. It was then that the plaintiff moved for leave to file a petition for a writ of prohibition on the grounds that the chief judge, in entering the order, exceeded the authority to enter general orders (citing 94 Ill.2d R. 21(b)), and that a writ of prohibition is the only adequate remedy available to the plaintiff.

Under the Constitution of Illinois of 1970, this court is authorized to exercise original jurisdiction in cases, inter alia, relating to writs of prohibition. (Ill. Const. 1970, art. VI, sec. 4(a); Hughes v. Kiley (1977), 67 Ill.2d 261, 266, 10 Ill.Dec. 247, 367 N.E.2d 700.) The purpose of a writ of prohibition is to allow a court of superior jurisdiction to prevent one of inferior jurisdiction from exercising jurisdiction beyond its legal authority, and to restrain that court from further action in the cause involved when damage and injustice are likely to result from the inferior court's action. Hughes v. Kiley (1977), 67 Ill.2d 261, 266, 10 Ill.Dec. 247, 367 N.E.2d 700.

It is generally said that for a writ of prohibition to be issued four conditions must be satisfied: the action sought to be prohibited must be judicial in nature; the jurisdiction of the court against which the writ is to be issued must be inferior in jurisdiction to the issuing court; the action sought to be prohibited must be either outside the inferior court's jurisdiction or beyond its legitimate authority; and there must be no other adequate remedy available for the party seeking the writ. (People ex rel. No. 3 J. & E. Discount, Inc. v. Whitler (1980), 81 Ill.2d 473, 479-80, 43 Ill.Dec. 721, 410 N.E.2d 854.) While the last condition has been variously interpreted, "[t]he usual circumstance in which it is satisfied involves a petitioner for the writ who will suffer some injury due to the unauthorized exercise of jurisdiction that cannot be remedied by vindicating his rights on appeal. [Citations.]" 81 Ill.2d 473, 484, 43 Ill.Dec. 721, 410 N.E.2d 854.

The parties agree that the first two conditions are satisfied. It is disputed whether the third and fourth conditions are met.

The plaintiff argues that Judge Bower's authority to enter general orders does not extend to ordering the office of public defender to provide representation for indigent civil contemnors who may be subject to incarceration, because the Public Defender Act (Ill.Rev.Stat.1985, ch. 34, par. 5604) does not authorize such representation. The defendants contend that under the chief judge's general administrative authority (citing Ill. Const. 1970, art. VI, sec. 7(c)), there was authority to appoint public defenders to represent indigent civil contemnors under the Public Defender Act (Ill.Rev.Stat.1985, ch. 34, par. 5604). They say that the chief judge entered the order because, citing People ex rel. Bier v. Scholz (1979), 77 Ill.2d 12, 19, 31 Ill.Dec. 780, 394 N.E.2d 1157, "[c]ourts have inherent powers to protect * * * the public they serve against default of their constitutional obligations," and have authority to preserve indigent civil contemnors' constitutional right to assistance of counsel.

The issue here does not focus on constitutional rights of individuals to counsel, or on constitutional obligations of courts to appoint counsel, but on whether the chief judge had authority to appoint the legislatively created office of the public defender to represent indigents in civil contempt proceedings.

To determine whether the chief judge exceeded his authority, we look to section 4 of the Public Defender Act, in which the legislature stated the circumstances when the public defender may be appointed to serve as an attorney for indigents:

"The Public Defender, as directed by the court, shall act as attorney, without fee * * * for all persons who are held in custody or who are charged with the commission of any criminal offense, and who the court finds are unable to employ counsel." Ill.Rev.Stat.1985, ch. 34, par. 5604.

It is fundamental that courts, when interpreting a statute, must ascertain and give effect to the legislature's intention in enacting the statute. In doing so courts must give the language of the statute its plain and ordinary meaning.

" 'It is a primary rule in the interpretation and...