dissenting:
The Illinois Constitution mandates that the Auditor General of Illinois audit “public funds.” (Ill. Const. 1970, art. VIII, §3.) A plain reading of the constitutional audit provisions leads to the conclusion that the funds of the Attorney Registration and Disciplinary Commission and the Board of Examiners are public funds. The report of the Committee on Revenue and Finance of the Illinois Constitutional Convention removes whatever doubt remains as to whether these funds are public funds. The report states that the objective of article VIII is “to assure that the Illinois citizen has the broadest possible access to information on the fiscal condition and operations of state and local governments, so that he may hold his elected officials accountable for their performance in office.” (7 Record of Proceedings, Sixth Illinois Constitutional Convention 2007 (Report of the Committee on Revenue and Finance).) The Illinois legislature used similar language, which will be discussed subsequently, in enacting the Illinois State Auditing Act (Ill. Rev. Stat. 1987, ch. 15, par. 301 — 2(b)).
The general focus of this appeal is article VIII of the Constitution, entitled “Finance.” (Ill. Const. 1970, art. VIII.) More specifically, it concerns the interpretation of the words “public funds.” That term is found in all four sections of article VIII. The pertinent provisions are:
Ҥ1. General Provisions
(a) Public funds, property or credit shall be used only for public purposes.
(b) The State, units of local government and school districts shall incur obligations for payment or make payments from public funds only as authorized by law or ordinance.
* * *
§2. State Finance
(a) The Governor shall prepare and submit to the General Assembly, at a time prescribed by law, a State budget for the ensuing fiscal year. The budget shall set forth the estimated balance of funds available for appropriation at the beginning of the fiscal year, the estimated receipts, and a plan for expenditures and obligations during the fiscal year of every department, authority, public corporation and quasi-public corporation of the State, every State college and university, and every other public agency created by the State, but not of units of local government or school districts. The budget shall also set forth the indebtedness and contingent liabilities of the State and such other information as may be required by law. Proposed expenditures shall not exceed funds estimated to be available for the fiscal year as shown in the budget.
(b) The General Assembly by law shall make appropriations for all expenditures of public funds by the State. Appropriations for a fiscal year shall not exceed funds estimated by the General Assembly to be available during that year.
§3. State Audit and Auditor General
(a) The General Assembly shall provide by law for the audit of the obligation, receipt and use of public funds of the State. The General Assembly, by a vote of three-fifths of the numbers elected to each house, shall appoint an Auditor General and may remove him for cause by a similar vote. ***
(b) The Auditor General shall conduct the audit of public funds of the State. He shall make additional reports and investigations as directed by the General Assembly. He shall report his findings and recommendations to the General Assembly and to the Governor.
§4. Systems of Accounting, Auditing and Reporting
The General Assembly by law shall provide systems of accounting, auditing and reporting of the obligation, receipt and use of public funds. These systems shall be used by all units of local government and school district.” (Emphasis added.) Ill. Const. 1970, art. VIII.
As mandated by the Constitution, the General Assembly appointed an Auditor General and enacted the Illinois State Auditing Act (Ill. Rev. Stat. 1985, ch. 15, par. 301 — 1 et seq.). Section 1 — 2(a) of the Act specifically states that the Act implements article VIII, section 3, of the Constitution and should be construed in furtherance of those provisions. (Ill. Rev. Stat. 1985, ch. 15, par. 301 — 2(a).) Section 1 — 2(b) states that the Act is “intended to provide a comprehensive and thorough post audit of the obligation, expenditure, receipt and use of public funds of the State *** to the end that the government of the State of Illinois will be accountable to the General Assembly and the citizens and taxpayers, and to the end that the constitutional and statutory requirements governing state fiscal and financial operations will be enforced.” (Ill. Rev. Stat. 1985, ch. 15, par. 301 — 2(b).) Section 3 — 1 states that “[t]he Auditor General has jurisdiction over all State agencies to make post audits and investigations authorized by or under this Act or the Constitution.” Ill. Rev. Stat. 1985, ch. 15, par. 303-1.
The plaintiffs make four arguments in opposing the asserted power of the Illinois Auditor General to audit the funds of the Board of Bar Examiners and the Attorney Registration and Disciplinary Commission. The plaintiffs first argue that the funds of the Board and the Commission are not public funds of the State because they arise from the inherent power of the supreme court to license and discipline attorneys and not from the Constitution. Second, they argue that the funds of these two agencies do not comport with the definition of public funds as stated in article VIII of the Constitution. Third, the parties argue that even if the Illinois Constitution gives the legislature power to allow the Auditor General to audit the funds of the Board and Commission, the wording of the Illinois State Auditing Act as enacted by the legislature does not encompass these two agencies. Finally, it is argued that the Act as applied to these agencies violates the constitutional doctrine of separation of powers.
The plaintiffs’ first argument stems from the proposition that the supreme court has inherent authority to regulate the admission of attorneys to the bar and to discipline attorneys. Consequently, the legislature must defer to the judiciary in the exercise of its inherent power. (People v. Joseph (1986), 113 Ill. 2d 36, 495 N.E.2d 501; see also People ex rel. Bier v. Scholz (1979), 77 Ill. 2d 12, 394 N.E.2d 1157.) The fact that the registration and discipline of attorneys is a power inherent in the judiciary is beyond cavil. However, it is a non sequitur to say that because such inherent power exists, the legislature may not enact legislation in the same area. The legislature is prohibited from doing so only if its legislation unduly encroaches upon the inherent powers of the court. People v. Joseph (1986), 113 Ill. 2d 36, 47, 495 N.E.2d 501; Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 149, 105 N.E.2d 713.
The parties in this proceeding do not make any argument that an audit will intrude upon the inherent powers of the court. The majority nevertheless comments that an audit by the Auditor General “would work more than a mere peripheral effect on the court’s exercise of its inherent judicial power to regulate the admission and practice of law in this State.” (183 Ill. App. 3d at 724.) Similarly, the majority suggests that the audits “would be highly intrusive into the court’s inherent power.” (183 Ill. App. 3d at 724.) To gain some perspective on the issue of legislative intrusion into the inherent powers of the court, it must be remembered that under article VIII of the Constitution the Auditor General is commanded to audit public funds of the State. Pursuant to this constitutional mandate, the Illinois Supreme Court in the case of Madden v. Cronson (1986), 114 Ill. 2d 504, 501 N.E.2d 1267, cert. denied (1987), 484 U.S. 818, 98 L. Ed. 2d 36, 108 S. Ct. 73, issued a mandamus to the Auditor General commanding that he audit the funds of the supreme court itself. Without a claim by the supreme court that an audit of its own funds is intrusive and without an argument made by the parties in this case that an audit is intrusive, I fail to see how the majority can hold that an audit would be highly intrusive into the court’s exercise of its inherent power. Consequently, I do not believe the inherent power doctrine is a limitation on the power or duty of the Auditor General.
The second argument is that the funds of the Board and the Commission are not public funds as defined by article VIII of the Constitution. The majority holds that public funds are those that are appropriated or otherwise authorized by legislative enactment or by executive order. I believe that holding is based upon a misreading of article VIII and places undue emphasis on section 2 of article VIII, which is entitled “State Finance.” That section establishes the Governor’s authority and responsibility for submitting a comprehensive budget and also in submitting a balanced budget. (Ill. Ann. Stat., 1970 Const., art. VIII, §2(a), Constitutional Commentary, at 138 (Smith-Hurd 1971).) Section 2 also provides at subsection (b) that the General Assembly shall make appropriations of all expenditures of public funds. I do not believe that section 2 can be properly interpreted as restricting other provisions in article VIII to a definition that public funds are only those appropriated or otherwise authorized by legislative enactment or by executive order.
The section concerning State finance is only one of four sections contained in article VIII. The other three sections clearly evince a scheme, as stated by the committee of the Constitutional Convention that drafted the article, to assure Illinois citizens the broadest possible access to information of the operations of not only the State but also of local governments so that the citizens can hold elected officials accountable for their performance in office. (7 Record of Proceedings, Sixth Illinois Constitutional Convention 2007 (Report of the Committee on Revenue and Finance).) For example, section 1(a) of article VIII provides that public funds, without qualification, shall be used only for public purposes. Section 1(b) is equally expansive in stating that “[t]he State, units of local government and school districts” shall incur obligations or make payments from public funds as authorized by law or ordinance. (Ill. Const. 1970, art. VIII, §l(b).) As explained by Robert A. Helman and Wayne W. Whalen in the Constitutional Commentary to section 1(b), the use of the terms “State, units of local government and school districts” is intended to cover all entities of State and local government. (Ill. Ann. Stat., 1970 Const., art. VIII, §l(b), Constitutional Commentary, at 127 (Smith-Hurd 1971).) Section 3(b), in considering all governments, provides for the audit by the Auditor General of State funds. Section 4 provides that the General Assembly shall provide auditing systems for the remainder of the government, that is, units of local government and school districts.
In my view, the term “public funds” must be considered in light of the intention of the Constitution to encompass all government in the State of Illinois, as expressed in article VIII considered as a whole. It must also be considered in light of the report of the Committee on Finance, quoted above, which states the obvious rationale of article VIII. The Auditor General has the right and the duty to audit funds of the Board and the Commission, which are entities created by the supreme court. The right of the Auditor General to audit the funds in question is not limited by the existence of the inherent power of the supreme court because it is not asserted in any way that the right to audit infringes upon the exercise of this inherent power. It is for these reasons that I would conclude that the Constitution commands that the funds of these two agencies be audited by the Auditor General.
The plaintiffs’ third argument is that the Illinois State Auditing Act, as enacted by the legislature, does not encompass the funds of the Commission or the Board. The Act, designed to implement the constitutional audit provisions, defines “State agencies” as follows:
“[A]ll officers, boards, commissions and agencies created by the Constitution, whether in the executive, legislative or judicial branch, but other than the circuit court; all officers, departments, boards, commissions, agencies, institutions, authorities, universities, bodies politic and corporate of the State; and administrative units or corporate outgrowths of the State government which are created by or pursuant to statute, other than units of local government and their officers, school districts and boards of election commissioners; all administrative units and corporate outgrowths of the above and as may be created by executive order of the Governor.” (Ill. Rev. Stat. 1987, ch. 15, par. 301 — 7.)
The comprehensive sweep of this definition is striking. It leaves no doubt that all agencies of State government are subject to audit by the Auditor General. The supreme court itself is clearly encompassed by this definition as an agency or institution of State government. As such, the court receives appropriated funds subject to public audit. (See Madden v. Cronson (1986), 114 Ill. 2d 504, 512, 501 N.E.2d 1267, cert. denied (1987), 484 U.S. 818, 98 L. Ed. 2d 36, 108 S. Ct. 73.) The Board and Commission, as “administrative units” of the court, are also State agencies within the purview of this definition. If the supreme court itself can be audited, under what rationale can one of its own agencies claim exemption from audit? The funds in question here are committed by supreme court rule to the public purpose of regulating the State bar. Thus, the Board and Commission are State agencies administering public funds.
The final argument made by the plaintiffs involves the constitutional doctrine of separation of powers. It is the Constitution itself which gives the Auditor General the power to audit all public funds of the State regardless of the particular branch of government which holds them. I do not believe it can be said that the Auditor General, by fulfilling his constitutional mandate, is violating that same Constitution.
For the foregoing reasons, I respectfully dissent from the opinion of the majority.