specially concurring:
I agree with the majority’s conclusion that the Auditor General is obligated to audit funds appropriated to the court by the legislature and that we may compel him to do so in this proceeding. I concur specially because I believe too little attention has been given to the appearance of impropriety which arises from our participation in this case.
The Auditor General argues that he is denied due process for two reasons: first, because individual justices of this court have made extrajudicial statements regarding their views on the question of the Auditor General’s authority to audit the books of the Attorney Registration and Disciplinary Commission (Commission) and the Board of Law Examiners (Board); and second, because the court is the real plaintiff in interest here and is thus sitting in judgment of its own lawsuit. The first point is without merit. Not all the current members of the court have taken a position with respect to the Commission and Board funds. Moreover, statements regarding that separate controversy now pending in the circuit court of Cook County are too remote to require disqualification in this case.
The more difficult point is whether the court is in fact sitting in judgment of its own case. In one sense, the people of the State are the real party in interest here: it is they who deserve an accounting of the hundreds of millions of dollars appropriated by the legislature and expended by the court system since the last audit of these funds by the Auditor General. The plaintiff, Mr. Madden, is — in this sense — merely their representative. But we cannot and should not gloss over the realities of the situation. Mr. Madden as Acting Director is an employee of the court, and he serves at our pleasure. We cannot but acknowledge that this action could only be maintained with our approval.
Despite this fact, I agree with the majority that our interest here is not of a magnitude or kind which implicates due process. If the Federal Constitution does not require our disqualification, however, the Standards of Judicial Conduct, under normal circumstances, would. (See 87 Ill. 2d R. 61(c)(4); cf. Southern Pacific Communications Co. v. American Telephone & Telegraph Co. (D.C. Cir. 1984), 740 F.2d 980, 990 n.9 (reach of Federal statutes on judicial disqualification broader than due process).) Although the audit will not inure to our benefit— either financially or otherwise — apart from the interest we all have as citizens in a proper accounting of public funds, this is still our lawsuit. We cannot escape the fact that Mr. Madden works for us and is under our control. As is evidenced by newspaper editorials dubbing this case “a bout with the referee,” there is surely the possibility that the public will perceive something improper is taking place. It is this appearance of impropriety that makes me uncomfortable with hearing this case and would ordinarily require us to step aside.
The difficulty with our recusal here is that it would result in a continuation of the inaction by the Auditor General which has frustrated the manifest constitutional design for an audit of this court’s appropriated funds. If we cannot adjudicate the question of the Auditor General’s responsibility, it will not be decided, and the Auditor General will continue to leave hundreds of millions of dollars appropriated by the legislature unaudited. Under the ancient “rule of necessity,” even if a judge has an interest in the case, “where no provision is made for calling another in, or where no one else can take his place— it is his duty to hear and decide, however disagreeable it may be.” (United States v. Will (1980), 449 U.S. 200, 214, 66 L. Ed. 2d 392, 405, 101 S. Ct. 471, 480, quoting Philadelphia v. Fox (1870), 64 Pa. 169, 185.) This is, in my judgment, such a situation.
Contrary to the Auditor General’s suggestion, there is no constitutional authority for us to assign a “temporary acting Supreme Court” which could relieve us of the necessity of deciding this case. Although article VI, section 16, of the 1970 Constitution (Ill. Const. 1970, art. VI, sec. 16) gives us the power to “assign a Judge temporarily to any court,” this provision cannot be read in isolation. Article VI, section 3, plainly states that the supreme court “shall consist of seven Judges.” If assignment of a “temporary acting Supreme Court” were permissible, we would have 14 judges, not seven. Nothing in either provision suggests that the temporary-assignment authority can be exercised merely to “replace” a judge who has recused himself. As I understand the constitutional scheme, our power to make temporary assignments to this court, the sole court in this State for which the exact number of offices is defined in the Constitution, extends only to filling vacancies in office.
The rule of necessity commands that, while we may wish to avoid doing so, we must decide this case. The public interest — as well as that of the members of the Supreme Court and the Acting Director — in knowing that public funds are being safeguarded requires us to determine whether an audit of funds appropriated by the legislature is indicated. I concur with the majority that the Auditor General has presented no reason why he cannot audit the appropriated funds. He has failed to make any showing of how an audit of the appropriated funds without an audit of the Commission and Board funds would violate accepted accounting principles. Nor can the Auditor General dispute that he currently conducts what he must characterize as “fragmentary or selective” audits by continuing to audit the moneys appropriated for the appellate court, which are a part of the overall legislative appropriation to this court. And, as pointed out by the majority, for several years he did audit the funds appropriated by the legislature to the Supreme Court without auditing the Commission and Board funds. I, therefore, agree that the writ of mandamus should issue.