thank you good morning and may it please the court my name is miriam caspar and i represent the defendant stephen are patton corporation counsel of the city of chicago your honour's this case should of the executive branch the mayor when the mayor is the one who should be deciding disputes internal disputes between his appointed executives he has filed a lawsuit even though the municipal code vests exclusive authority to file lawsuits with one individual the corporation counsel and cast aside the attorney client privilege or his investigations even though his ordinance says not a word to bar assertion of the privilege in my opening remarks this morning your honour's i will address jurisdiction and power to sue neither the inspector general nor the appellate court cited a single case in which a court has entertained a dispute between appointed municipal executive officials and there are none instead based on settled law the very concept of an official capacity suit between two appointed municipal department heads does not make any sense that is because as a municipal corporation the city is a single legal entity the inspector general is the head of an internal review office the corporation council is the head of the legal department and all of these different departments come together and operate as a single municipal corporation a dispute between them is internal to the corporation and therefore it is not just  where the law otherwise the courts would be frequently every day entertaining disputes every time any appointed me just support officials work to disagree about an internal issue the inspector general or just a case by case approach for all intragovernmental disputes in general but every case between appointed municipal department heads falls outside the court's jurisdiction because a municipal corporation is a single legal entity and its a ministrative divisions don't have separate legal existence the inspector general also sees legal independence in his ordinance which grants from some protection from removal and gives them some discretion if some discretion about what to investigate but that reflects political independence not freestanding legal existence or corporate status in the end even his own ordinance makes clear that he is simply a division of the city and internal to it it classifies his office as an office of municipal government house and i ask some questions about the ordinance and how you that must be effectuated by the corporate attorney so it seems to read that the an inspector general has the authority to issue subpoenas negotiate for seven days before an the ordinance as a whole recognizes some relationship between the office of inspector general and the corporation counsel's office would you agree with that i agree we do agree that when there is an objection to  the ordinance does contemplate that the inspector general will negotiate based on those objections i'm trying to work it out with the individual who's been served with the subpoena the ordinance doesn't speak that provision doesn't speak to what happens after the seven day waiting period during of negotiations what would happen when we know it clearly what would happen we don't know the specter general has the authority to initiate prosecution doesn't cooperate and this negotiation they don't want what happens then i think there is there are several things that could happen at that point and since that is in your hypothetical a  employee of an internal city employee our position is that there would be no jurisdiction over a lawsuit brought to enforce the subpoena but there would be many other ways to obtain compliance maybe there was no good faith objection or something of that nature well he certainly can do many other things including consult with that individual's department had he can recommend haven't come around they're not to cooperate i'm asking you to file a lawsuit to enforcement you know well we do then he can ask the cooperation council to file a lawsuit to enforce the subpoena in your hypothetical it would depend whether that employee whether the issue was something city business related or this it's just an individual whether the city would initiate a prosecution against somebody in their individual capacity i think presents a different question here we have an official capacity problem which we don't think would be just a shambles of the corporation counsel can't bring lawsuits against other city departments or official capacity individuals acting in their in their official i've had my min the corporation counsel and that's my film which has some authority could perhaps go to court to enforce the subpoena against the water the head of the water department or not i don't think that that lawsuit would be just dish of all i think the corporation council can certainly provide assistance the corporation council has the duty under the municipal code to protect the rights and interests of the city in legal proceedings certainly the corporation council can be consulted if there is a difficulty with another city department or the inspector general as we explain is also free to go to the mayor if there is a dispute between himself  a department had and that example the water department head analogus corporation council in this case this dispute we submit should have been brought to the mayor for his decision and his involvement in his resolution as the head of the executive branch so another dispute between the inspector general of the head of the water department we think could also be resolved in the same way and the inspector general has other tools as well i mean he there are do so assuming that that is is part of the allegation here i think there are still options available to the inspector general it's not correct that there's a i think if he goes to the mayor and the mayor won't cooperate there are some things that can be done i mean i don't think we're wiring him to at least make an attempt is problematic in the sense that he is an investigator and often investigators do approach the very people who are being investigated and also the people around them but if he does exhaust all the tools available under his ordinance and there are many we've already discussed a few of he is also has the power to share his investigations with outside law enforcement agencies so if he does suspect illegal conduct by by  anyone including the mayor and he's reached an impasse and he feels you know in the most extreme hypothetical that nobody is cooperating and everybody is hiding something he may which of course  not the allegation in particular here although it is is how it's been argued in in the briefs because there is no allegation that the marriage was ever consulted to attempt to resolve this dispute is what i mean by that but he makes sure if you invest in the investigation with outside law enforcement get their cooperation they may have additional resources at their disposal so there are a lot of options available to the inspector general as he works inside the confines of the government of which he is a part that is how inspector generals operate across the country as they do have political opponents as they should they should be free from the press political process but nevertheless they don't have independent corporate or legal status they must work within the structure that created them and they have ample tools at their disposal to do that and just touching back briefly on the power to sue issue which we discussed a little bit the the provision of the ordinance that says for seven but that simply does not say the inspector general may file a lawsuit it's not a grant of power at all it's a restriction on what he can do it imposes a seven day waiting period and as even the  silent about what happens after that reading in independently litigating authority would violate basic rules of statutory construction it would ignore the corporation counsel's ordinance which gives him exclusive issue involving the city and its officials and i'm top of that it makes sense that the perfect sense that the city council would want it that way centralized  single legal entity like the city otherwise it would be unclear what the city's position is who really represents said if all these various department has could take it upon themselves to decide when it's appropriate to sue it would be it would be difficult for the city to ever be sure what it position it's taking in court so for the independent reason that the inspector general lacks the power to sue litigating  authority and the reason that this court has no jurisdiction the courts have no jurisdiction over internal disputes within the municipal corporation we ask that the court order that the lawsuit be dismissed if there are no further questions royce any other form of government into his argument that that makes all the difference requiring as a result of that difference separate corporate status for standing  the municipality has chosen to confer standing and capacity the manner to which i will turn in just a moment i first want to quickly point out a second way in which the co the point about the uniqueness of municipalities as compared to other governmental bodies in the context of the truck governmental disputes thrown by acknowledging that standing and capacity could be conferred upon the inspector general by referendum council once more acknowledges that there is nothing inherent in the nature of a municipality that prevents a department or agency of municipal government from having standing and capacity conferred upon it are british discuss why the referendum idea doesn't work here that won't go into that your honor i  the inspector general to ask courts to enforce his subpoenas tenpenny coins i note that the corporation counsel appears to agree that that's the determinative question i'm quoting from the it's showing you that the corporation as all now try to make plain while showing you that the corporation counsel's country arguments are unpersuasive first after conferring on the inspector general the power to issue subpoenas the ordinance says the inspector general as the spice called ridge quote shall take no action to enforce the subpoena or to initiate prosecution during the seven day objection period inspector general  plate no action to enforce order to initiate prosecution for a limited period of time now your honour's this is plainly a limitation on someone's power don't do something for seven days whose power doesn't limit why the inspector generals of course because it is the inspector general who is specifically name i suggest your honour's in its implausible in the extreme to argue  after empowering inspector general to issue subpoenas and additionally as justice tice's question of service to administer them by doing without objections and then telling the inspector general not to take action to they after all this the legislature meant but did not say that the inspector general is to ask the corporation counsel to seek enforcement of his subpoenas it would also of course violate a precept  corporation council has a twofold justification for his proposed some antic legerdemain first referring to an entirely different part of the city code the corporation  direct the corporation council is directed to conduct the city's raucousness and second he refers to the mayor's power to supervise his employees also found in another part of the city code as  first point your honor the law business authority of the corporation council apart from the implausibility point i've already made and apart from the statutory construction point i've already made in a part i'd like to add from the commonsense observation but it is the product that issues a subpoena who has the standing to enforce it not somebody else there's also a precept of statutory construction that says provisions relating to only one subject such as in this case subpoenas prevail over general provisions designed to apply to cases generally such as in this general fixed term of office protection against removal power to launch investigations on his own initiative power to conduct public hearings quote at his discretion among many others it's again implausible in the extreme to assert that although the city council was free to limit the mayor supervisory authority so that he could not unilaterally describes the inspector general  authority from giving an inspector general standing the esports to enforce the subpoena is it empowered to be issuing the same rule about the particular prevailing over the general applies here i put  your honor's the result of this analysis of the language of the ordinance is that the conclusion is truly in a skeptical that the subpoena provisions of the ordinance do confer upon the explain why interpret ingoing ordinance as the corporation council wishes would be incompatible with the ordinance is central purpose of creating a truly independent internal investigative capacity and as you yourself have said in the harvill vs johnson city case in interpretation that carries out the overall purpose of legislation is always to be favored or were an interpretation that the feats that purpose so your honour's both the express language of the ordinance and its central purpose demonstrate that the inspector general does have standing and capacity to enforce to ask the courts to help force is subpoenas corporation council has talked about wreaking havoc in the brief and how everybody would rush off and buy a lawsuits if the court would rule in the fashion i'm suggesting is indicated by the ordinance hardly your honour's for your ruling would not extend to any agency or officer that did not have the investigatory mission and possess the specific powers given to the inspector general the office of the inspector general is unlike any other agency and therefore the language of the inspector general ordinance constitutes a very precise limiting principle on your ruling your honors i'll turn to the cross appeal unless there are questions on the appeal here on the cross appeal the question is does the inspector general or ordinance call for disclosure in the face of a claim of attorney client privilege here and thirty three on a note that rule one point six of the rules of professional conduct authorize a lawyer to make disclosure to comply with other rule or a court order so if the inspector general ordinance does call for disclosure notwithstanding the claim of privilege corporation counsel is expressly authorized to comply with  books records and papers this strong combined cooperation and disclosure duty contains no exceptions for the attorney client privilege none for city lawyers and none for the law  and the contrary as to inspector general subpoenas the duty to cooperate and the duty to disclose remove any expectation of confidentiality which is of course essential for the privilege based on the cooperation doody alone without disclosure provision such as we have in the ordinance this court in the waste management case held that the duty of cooperation from the privilege in the circumstances of that case precisely because it removed the expectation of confidentiality of this that's essential to a claim of attorney client privilege and that wholly your honor and waste management was in the private sector where the privilege its strongest because it's not subject to the objections of could be raised when we're talking about a government official or a lawyer exercising attempting to exercise the for of this you know what's the corporation counsel's response to this quad duty of cooperation argument in the briefs well he says two things first he says waste management should be limited to its insurance contract context and should not be given broader application and secondly he says that the attorney client privilege can only be abrogated by a statute with the express language well the first arguments illogical and the second to simply win correct on the first argument waste management scrolling should be applicable here because there is no reason why a good deal of cooperation imposed by contract should be stronger than one imposed by statute the essential in both situations is that there can be no expectation of confidentiality in the face of a duty to cooperate expressly stated in the cooperation council i put it to you does not offer any explanation except to move to his is made clear by implications only and not by express language cooperation council also argues in the brief that providing for a right to object to subpoenas must meet with the attorney client privilege was to preserve because otherwise the duty to cooperate with nullified the right to object i suggested that arguments without merit self evidently for the freedom to object on a valid grounds would not be affected by this court's rejection of an invalid objection there's a lot of talk in the brace about the chilling effect if the court should rule out a way i refer you to the briefs your honor so in that respect the chilling concern is no grounds for ignoring the specific language of the ordinance and with respect to waiver which the corporation counsel mentioned here this morning another concern once again federal cases discussed in the brief make the same point in a green jury context in this court's consolidation coal opinion quoting justice cardoza you made it clear the role both of these doctrines should play here in a case such as this you said a court must mediate between competing social values but it is you must balance the bad news in this case sought to be furthered by the privilege against those sought to be furthered by the inspector general wardens cooperation council expounds at length on the value of the privilege the government's but there's hardly a word in the brief about the competing values of public trust in the integrity of government all about the obligations of government lawyers to the trust even though it is against these values but what you call the speculative benefits of the privilege must be balance i submit fin this case the result of that balancing process cannot be in doubt the court is you're being asked to extend the privilege into an arena within which it has never before in illinois been deployed in the face of this court's repeated admonition that the privilege should be confined to its narrowest possible limits the central purpose of the inspector general ordinance of advice is to create an independent truly independent investigative agency thereby society the values of furthering the public trust in government integrity and the obligations of government lawyers to live cross are therefore of the very highest order and that's why i say that the that the cooperation council may not refuse to comply with the inspector general subpoena on the grounds of attorney client privilege and i think your honor is for your attention thank you two municipal department heads who are appointed by the mare can maintain a lawsuit in court against each other there are inspector general cites not a single case like that not and it's because that whole not the the corporation counsel's ordinance was not amended it's still there it's still vast exclusive authority and that authority is a for litigation in the corporation council and that can be read in conjunction with the ordinance  discussing take no action by the inspector general as far as just disability is concerned i think the question is a little different the city council cannot conferred jurisdiction in the courts as for the question whether the city council could couldn't for separate corporate status which is the position we take what would be required for the inspector general to maintain a lawsuit against another city official i think that's a more difficult question we do make an argument in the brief that if it could be done under the home rule provision it would be under the referendum provision the inspector general does not cite a case that indicates that i mean  the authority to confirm or separate corporate status or make a inspector general its own local public entity and we are not aware of one but in any event th position we take is it doesn't matter because it clearly was not done here and the issue of and sorry just briefly the inspector general suggests that we say no case suggesting a separate corporate status is required that is incorrect we do in our brief page twelve to thirteen on the issue of capacity it is not implausible that the inspector general would lack the power to sue and we have to already discuss all the many other powers he does have the corporation council has exclusive litigating authority and if the inspector general lacks the power that he believes he ought to have he may feel free to take that up with the city council turning briefly to privilege the privilege is critical to government work every single day city department seek legal advice from the corporation counsel so they can do their work in compliance with the many laws that govern and regulations that govern a city the privilege allows full and frank communication between city officials and their attorney and therefore it underlies the very functioning of city government consistent with this all of the civil cases uniformly hold that the privilege applies in the government setting the inspector general wants his investigations to be treated differently we explain in our brief why he has nothing like a grand jury in those limited cases the court have found that in the context of a criminal proceeding there could be some exceptions to privilege an inspector general's investigation is nothing like that there's no grand jury there's not even a prosecutor involved the inspector general also focuses heavily on the duty to cooperate but right alongside the duty to cooperate the ordinance allows objections so it's not true at all that the duty to cooperate in and of itself must mean that there is no expectation of privacy went to city officials speaks with the corporation council because there is an open objection provision and it does not say privilege may not be asserted furthermore the ordinance provides that an objection is not a failure to comply or cooperate and it wouldn't make any sense to think that the city council the city's governing body would have wanted to abrogate a privilege that is so critical to the very functioning of government waste management case was in the insurance context and was completely different but due to cooperate there a term of art in the insurance context the insured was required to turn over information that was used in a shared defense in the underlying litigation because the insurer was going to be held liable to pay based on that underlying litigation we just don't have anything like that here that that analysis  into the analysis of privilege your honor either if i'm either issue of taking the first issue first as we've explained inspector generals do function as an internal watchdog  if you you could determine a watchdog group agency within the local government there still no authority for that agency which has political independence again it's true so that he can serve in that function he's not he can't simply be fired by the mare before his term expires without cause and things things like that that is correct but that doesn't mean that he lacks any power i'm far from it the ordinance provides him many tools in addition to everything other inspectors have he there is the studio to cooperate which is quite broad although there are objections that can be made it is quite broad it prohibits retaliate retaliation for cooperating it authorizes serious penalties he can seek penalties discharge recommend  discipline he can conduct public hearings he can go public if it meets the confidentiality provision of his ordinance and apply pressure that way there are many many ways for the inspector general to get that information and i believe the same answer would go to privilege lots of investigators and prosecutors would prefer to get information from the this suspect the subjects attorney it's probably your honor if if there's a communication between a department head and the corporation council a conversation is occurring if it does get to the point i believe harden me if i'm making assumptions about the question but i believe if the if the official is starting to get into areas that seem like there's been wrongdoing on his part and he's trying to get away with something and it's moved away from a real city business or city issue then there is some flexibility and you know the corporation counsel is an attorney who is bound by the rules of professional conduct and the rules about the government organization as the client do apply to government and under that rule the corporation counsel would have to balance his obligation to his client the city and would be able to take into account whether what he's being told or what he thinks he's about to be told is something that would code cause substantial harm to the organization and at that point there is a little more room for flexibility in confidentiality under rule one point one three and as i think the comments to that rule made clear and there's just no reason and no argument really why that's not enough as an attorney he is as a public official he is presumed to act in good faith and as an attorney he is bound by those rules for all these reasons we