author: JUSTICE LINN

text:
      In re MARCUS E. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Melody E. et al., Respondents-Appellants).
    First District (4th Division)
    Nos. 1—85—2134, 1—86—2836 cons.
    Opinion filed May 18, 1989.

      James J. Doherty, Public Defender, of Chicago (Frances Sowa, Assistant Public Defender, of counsel), for appellant Melody E.
    Murphy Law Firm, of Chicago (Sheila M. Murphy, of counsel), for appellant Mervyn E.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Aaron Iverson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

This appeal arises out of an adjudication for wardship in which two minor children were removed from the home of their parents pursuant to certain provisions of the Juvenile Court Act. (Ill. Rev. Stat. 1983, ch. 37, pars. 702 — 4(2), 705—1, 705—7.) The case against the father, Mervyn E., was premised on allegations that he sexually abused both children. The mother, Melody E., was charged with allowing the abuse to occur and possibly participating in the abuse. After an evidentiary hearing, the trial court found that both children had been abused and that the environment should be deemed injurious to their welfare. While the children were in foster care the mother was allowed one hour of supervised visitation every two weeks and the father was initially denied visitation. After an additional hearing, the court reinstated the father’s visitation rights and required him to receive therapy. The mother’s motion for a new trial, based on newly discovered evidence, was denied. Both parents appeal, challenging the nature and extent of the evidence and the constitutionality of the provision of the Juvenile Court Act that they were charged with violating.

For the reasons that follow, we affirm the trial court’s findings concerning the father, reverse the finding of abuse as against the mother, and affirm the dispositional ruling.

Background

The initial complaint of possible sexual abuse originated in Oregon, where the mother and children had temporarily stayed with relatives. The mother’s sister reported that five-year-old Marla told her that the father had molested her while giving her baths. Although the written charge included an allegation of medical neglect and sexual intercourse, neither of these was established. The Illinois Department of Children and Family Services (DCFS), after notification by its counterpart in Oregon, filed a petition for wardship on February 28, 1984.

The following facts were brought out at the trial of the wardship petition.

THE STATE’S CASE

On February 14, 1984, Robert Granger, a social worker for the Illinois Department of Children and Family Services, visited the family’s Chicago home, which was owned by the father’s aunt, and spoke briefly with the parents. He set up an interview for the following day. The children appeared active and he saw no indication of medical neglect.

Gabriella Cohen, executive director of HELP, Inc., an agency which evaluates and treats persons allegedly involved in child sexual abuse cases, met the mother on February 15 at the police station. Cohen, who is also a member of several governmental task forces on sexual abuse, interviewed the mother and children and arranged for them to stay at a shelter.

At trial, defense counsel objected to Cohen’s relating what the children told her, arguing that section 4 — 6(4)(c) of the Juvenile Court Act was unconstitutional in permitting such hearsay testimony. The objection was overruled.

According to Cohen, Marla told her that in December 1983, before her mother took her and Marcus to Oregon, her father sat in the bathtub with her and rubbed her nipples and “pee-pee” (vagina). Marla, who was then four years old, told Cohen that her father had done this on several prior occasions.

Cohen showed Marla a coloring book which Cohen had helped develop for questioning children in sex abuse cases. On one page there were pictures of animals with explicitly depicted genitalia. Marla identified the vaginal opening of a raccoon as a “pee-pee.” Defense counsel unsuccessfully objected to the use of the pictures because Cohen had not been qualified as an expert in using the materials to question children or interpret their answers and because the materials were not of established reliability.

Cohen testified that she showed Marla four figures on a “phallus chart.” The first figure was a long squiggly thing, which Marla said looked like an elephant. The second was short and bumpy, and Marla did not know what it represented. The third figure resembled a non-erect penis and the fourth, a fully erect penis. Cohen testified that Marla said the third picture looked like her “daddy’s pee-pee before he played with [her] pee-pee” and the fourth looked like his penis after she rubbed his “pee-pee.”

Cohen acknowledged that the book she used to question the children was not standardized and that its reliability had not been established at the time of trial.

Cohen further testified that Marcus, the seven-year-old son, told her on February 15 that his father had hit him seven times on the penis for opening his sister’s Christmas present. He also said his father hit him “upside the head a lot.”

Cohen also interviewed the mother on February 15, 1984. Cohen said the mother told her that she was frightened when she found out about her husband’s abuse of the children and that is why she took them to her sister’s house in Oregon. She told Cohen that her husband hit Marcus often and that she was afraid to return to her husband’s aunt’s house in Chicago. Over objection, Cohen was allowed to testify that the mother told her that her husband had told her he “liked” children and that she was “too old” for him.

Later in the same day that Cohen initially interviewed the mother and children, Robert Granger, the DCFS social worker, talked to the mother. She told him that she had gone to Oregon in December 1983 because her husband had treated Marcus unfairly by severely punishing him and because her husband made her feel “low.”

On February 27, 1984, Cohen again interviewed Marla. Marla repeated essentially the same allegations. The mother, however, told Cohen that Marla’s Uncle Denny, who lived in Oregon, was probably the person who had molested Marla and that Marla was being misunderstood by saying “daddy/Denny.” Upon Cohen’s questioning, Marla responded that Uncle Denny would give her baths at night and “do the same thing.” As a result, the DCFS sent a report back to the same Oregon department from which the original report of abuse had been initiated by Denny’s wife, who is the sister of the children’s mother.

Marla had been called as a witness in the criminal proceeding that had been initiated against her father. In that proceeding, she stated both that her father did nothing to her and that she did not remember.

On February 28, 1984, Granger from the DCFS interviewed the mother again at the home where she and the children lived with her husband’s aunt, Evelyn Faedtke. The mother told Granger that she had seen her husband twice and that she no longer believed that Marla had told the truth about being sexually molested by her father. She said Marla had denied her earlier statements.

The petition for wardship was filed on February 29, 1984, and the children were placed in foster care.

The next interview took place in May 1984, when Gabriella Cohen of HELP, Inc., talked to Marcus. Cohen testified that Marcus mentioned that he and a “Jimmy” had had sex play. Marcus told Cohen of incidents in which he, his father, and Marla were in the bathroom, and sometimes in the bedroom, where his father had Marcus put his penis into his father’s mouth and Marcus would “pee” into his father’s mouth. Marcus said his father would put his own penis into Marcus’ mouth and ask Marcus to rub it. Marcus also told Cohen that he saw his father touch Marla’s vagina. Using an anatomically correct doll, Marcus stuck his finger into its anus and said his father did this to Marla.

In the May interview, Marcus also told Cohen that his mother was in the bathroom when some of the bathtub incidents occurred. Marcus told another social worker, Shirley Robinson, that his mother had participated in the sexual contacts. However, at trial he denied that she was in the bathroom or participated in any sexual incidents. He also said that he touched her “by her pee-pee” and that it felt “fur and skinny.” The transcript of the proceedings reveals that, after repeated questioning by various attorneys, Marcus consistently denied that his mother touched him sexually or that he touched her, except for the one time, which he later denied.

Cohen agreed with defense counsel’s observation that the children’s accusations had become more descriptive as time went on.

Shirley Robinson, director of the Child Sexual Abuse Treatment Center in Bolingbrook, Illinois, testified that she evaluated Marla and Marcus on August 7, 1984. Marla drew a picture of her father and explained to Robinson what she was drawing. She drew a “pee-pee” on him with a red crayon and said that there was “pee-pee” coming out. She colored the arms of the figure with pink crayon, “with a great deal of perservation.” Marla said she was not going to give daddy a mouth because he would spank her'if she did.

According to Robinson, Marla told her that she was not living at home because her father had touched her “down here,” indicating the genital area. She said her father sometimes hurt her when he rubbed her genitals.

Robinson interviewed Marcus, who told her that his father did “bad things,” touching his “pee-pee.” At Robinson’s request, Marcus used an anatomically correct doll to demonstrate what his father did to him. He said his father would suck his penis and it felt like he was “sucking all the blood out.” He also sucked his father’s penis. According to Robinson, Marcus told him that his mother also had sexual contact with him, inserting her finger in his anus.

The mother, called as an adverse witness, testified that she had been married to Mervyn E. for nine years and that she took the children to Oregon in December 1983 because of marital problems. She identified her signature on a statement taken in Oregon, which gave the reason for her departure as her husband’s “severe mental and physical abuse” of herself and her children. At trial she stated that she was unable to read and that the statement that was read to her before she signed did not say the same thing as the document read at trial.

The mother testified that she bathed the children in the evenings and that she never saw her husband give either child a bath. She found out that Marla’s Uncle Denny had given Marla baths in the morning and that he played with her then. When she found out, she. complained to her sister and requested that Denny quit giving Marla baths.

Marcus, then seven, was called as a State witness. In chambers, he told the court that “nothing ever happened in the bathroom.” He never saw his father touch Marla. He also said that his dad, Marla and he would play “suck your pee-pee.” He and his father sucked each other’s “pee-pees.”

On questioning as to his mother’s participation, Marcus testified that his mother was never present and that she did not touch him in the bathroom. He also said that he touched her near her “pee-pee” and that it felt “fur and skinny,” but later he said he never touched her. He also testified that his father stuck his finger “way in” Marla’s “pee-pee,” although he had previously stated he never saw his father touch her.

Marcus testified that he had no Uncle Denny and that he had never been to Oregon or on a vacation with his mother. He used the phrase “lies, lies, lies” at one time but did not remember what he meant.

DEFENSE

The mother’s attorney called Marla, age four, to testify. In chambers, she stated that her mother was good and her father was bad because he spanked her a lot. She said he never did anything else that made her feel bad, but then she said her daddy was nasty because he had played “down here” (indicating her genital area). Marla denied that either her father or Uncle Denny had ever given her a bath.

Eveyln Faedtke, Mervyn’s aunt and the owner of the house where the family had lived, testified that her nephew worked five to seven days a week. He arose at 5 a.m. or 6 a.m. and left for work about 6 a.m. She said that the children did not get up until 7:30 a.m. and that their mother customarily bathed them. She never saw the father bathe them and she only saw him hit Marcus once. She never saw either parent mistreat the children and they appeared to be happy, well-dressed, and fed.

Mervyn, the children’s father, testified that he had struck the children but denied sexually abusing them. He never bathed the children. He denied that they ever observed him nude and that he ever had them touch his private parts.

The mother, Melody, testified that she never saw the children and her husband together nude. She saw her husband hit Marcus in the head twice.

When she returned to Chicago from the Oregon visit, she telephoned her sister to ask if Denny, her brother-in-law, had done something to Marla. She learned that Denny had given Marla baths in the morning while Melody was taking Marcus to school.

Melody further testified that two or three days later the police took them to the station. Gabriella Cohen showed Marla an anatomically correct doll at the station and said, “Let’s pretend daddy will give a bath.” Marla told Cohen that her mother gives her baths, not her father.

The trial court ruled that the State had proven its case of abuse against the parents, finding that it did not believe that the children made up the accusations of sexual abuse. The court did not believe that Cohen made up the allegations, either. Accordingly, it entered a finding of abuse as to each child and a substantial risk of physical injury-

On January 28, 1985, and March 28, 1985, the court held a dispositional hearing. Two caseworkers reported that the parents had failed or refused to attend therapy because they maintained their innocence. The mother had filed for divorce from the father, but both wanted the children placed with Mrs. Faedtke, the father’s aunt. Caseworkers opposed this because they believed that she should have been aware of the abuse and because she did not believe that they had been sexually abused. According to one caseworker, the foster mother stated that the children told her that they had been dragged around with leashes and chains while in the aunt’s home and had been forced to clean up after their parents had defecated in bed.

Cohen, who was acting as the children’s therapist, testified regarding the children’s behavior in the sessions. Asked if he wanted to see his father, Marcus said “yes” and then made a clay figure of his father and cut it into pieces. Marla kissed a doll and told it it was going to be adopted. They did not tell Cohen that they had been dragged around by chains. Cohen believed that the aunt would not be able to cope with the children. She also recommended that the father’s visitation should be discontinued because the children were reacting severely after his visits.

Faedtke, the aunt, testified that before their removal from her home they were happy, normal children. They never used the foul language attributed to them until they were placed in foster care, and she felt that someone had “programmed” them.

The court found that it was in the children’s best interest to adjudicate them wards of the court. The father was denied visitation until further order of court and was ordered not to harm the mother or children. The father’s aunt was granted visitation at the discretion of the caseworkers.

MOTION FOR NEW TRIAL

The mother moved for a new trial based on trial errors and newly discovered evidence. Marla had made recent statements identifying the grandmother, who was suffering from terminal cancer, paternal aunt, and another uncle, Leslie, as having sexually abused her. The uncle and aunt were in court prepared to testify and the affidavit of the grandmother was offered. Defense argued that this evidence went to the children’s credibility and bias of the witnesses who reported the children’s alleged statements. The judge denied the motion.

The judge restored the father’s visitation rights, under supervision, twice a month.

Opinion

Unlike the focus of a criminal prosecution for child sexual abuse, a neglect proceeding under the Juvenile Court Act centers on the welfare of the child victim. We doubt that cases of this sort can be neatly wrapped in legal principles. Certainly, the contradictory statements of the children in this case are disturbing, especially since we have only the dry transcript and have no opportunity to assess the demeanor and credibility of the witnesses. We do believe, however, that the trial judge in this case carefully considered the evidence before reaching his determination that the children had been abused.

Both parents, in their separate appeals, contend that the findings of sexual abuse are not supported by competent, credible evidence and must be reversed. They further contend that section 4 — 6(4)(c) of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 704 — 6(4)(c)) is unconstitutional because it allows hearsay evidence of abuse to stand as substantive evidence, violating their rights to due process of law. In essence, they assert that the admission of the children’s out-of-court statements — as “corroboration” of the charges of sexual abuse — violated their constitutional rights and that the weight of this evidence was inadequate to establish their violation of the law.

I

According to the parents, statements that the State’s witnesses attributed to the children constituted uncorroborated hearsay. They contend that this violated their rights to due process of law.

The statute under which the evidence was admitted, section 4 — 6(4)(c) (Ill. Rev. Stat. 1983, ch. 37, par. 704 — 6(4)(c)), provides:

“Previous statements made by the minor relating to any allegations of abuse or neglect shall be admissible in evidence. However, no such statement, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect.”

Plainly, the first sentence of this section allows the admission, at trial, of children’s out-of-court statements that are being offered to prove the truth of the matter asserted, the classic definition of hearsay. (See Goshey v. Dunlap (1973), 16 Ill. App. 3d 29, 34, 305 N.E.2d 648.) Just as plainly, the second sentence does not allow the hearsay statements alone to establish abuse or neglect.

We do not believe that the legislative decision to allow hearsay evidence to be admitted under this section deprives parents of constitutional rights. Prohibitions against hearsay grew out of the concern that such testimony may not be reliable because it is not made under oath, in court, subject to cross-examination. (See generally E. Cleary, McCormick on Evidence §245, at 581 (2d ed. 1972).) On the other hand, courts have long recognized numerous exceptions to the rule against hearsay, such as excited utterances and statements for purposes of medical diagnosis or treatment. In the context of sexual abuse against children, some commentators have noted that “attempts to stretch a traditional hearsay exception to cover the pervasive and unique problem of child sexual abuse” often results in “ ‘tortured’ interpretations of the traditional exceptions.” (Skoler, New Hearsay Exceptions For a Child’s Statement of Sexual Abuse, 18 J. Marshall L. Rev. 1, 7 (1984).) Section 4 — 6(4)(c) of the Juvenile Court Act appears to create a new, statutory exception to the general rule against hearsay in the context of child abuse cases.

The parents’ due process argument is based on the assertion that they must be given a right to confront and cross-examine witnesses who testify against them before being deprived of the right to raise their own children. Presumably, the statute curtails that right.

We cannot agree that section 4 — 6(4)(c), in allowing the children’s hearsay statements to be admitted, infringes on parents’ constitutional rights to due process of law. On its face the statute provides that the out-of-court statements will not support a finding of abuse if “uncorroborated and not subject to cross-examination.” Ill. Rev. Stat. 1983, ch. 37, par. 704 — 6(4)(c).

In the pending case, the children both testified at trial and the parents’ attorneys questioned them regarding their prior statements as well as trial statements. Accordingly, the minors who made the statements, as well as the witnesses who repeated them, were subject to both confrontation and cross-examination at trial. To the extent the parents argue that they were deprived of the right to confront the children directly at trial (since the Act allows the children to testify in chambers), other courts have noted that the confrontation clause of the sixth amendment applies specifically to criminal proceedings, and dependency neglect adjudications are not criminal prosecutions. (See Ill. Rev. Stat. 1983, ch. 37, par. 704 — 6 (standard of proof and rules of evidence for neglect matters are in nature of civil proceedings); Smith v. Edmiston (W.D. Tenn. 1977), 431 F. Supp. 941, 945; see also In re Brooks (1978), 63 Ill. App. 3d 328, 379 N.E.2d 872.) The legislature, in allowing hearsay statements of minors to be admitted as evidence, did not allow the finding of abuse to be based solely on that evidence. This, we believe, safeguards the parents’ rights, balancing their interests with the courts’ need to consider the minors’ prior statements as probative on the question of whether abuse or neglect occurred.

The statute does not change the burden of proof, as the State must still present sufficient, credible evidence that abuse occurred. It does facilitate the admission of critical evidence that might otherwise be barred under traditional rules of evidence. In cases involving adults’ sexual abuse of children, especially their own, proof is problematical. The children generally are not in a position to report the abuse unless and until they feel some safety in talking about the situation to strangers such as social workers and therapists. To increase the likelihood of finding the truth, the legislature has determined that minors’ statements regarding abuse, made to others prior to trial, shall be admissible, although not conclusive, on the findings of abuse. We do not find that the statute violates due process on its face or as applied in this case. See In re K.L.M. (1986), 146 Ill. App. 3d 489, 496 N.E.2d 1262 (which rejects a constitutional challenge to the statute).

The parents’ argument that the statute is vague or overbroad for want of standards likewise must be rejected. The section embodies a rule of evidence, not a proscription of specific conduct. Moreover, the parents do not explain what is vague about the statutory reference to “previous statements,” despite their challenge to the court’s interpretation of the term. We believe that “previous statements” refers to those statements concerning the alleged abuse that the children make to others outside of court.

The parents’ true concern appears to be the reliability of the detailed statements that Marla and Marcus made over time, while in foster care and in therapy. The record does reflect that as the months passed, the children’s descriptions of abuse became more detailed and elaborate. This may raise questions concerning the children’s credibility, but it does not mean that section 4 — 6(4)(c) is vague or overbroad. As we previously discussed, the children’s out-of-court statements may be used only in conjunction with corroborative evidence to support a finding of abuse. The parents have given us no persuasive argument that the wording of the statute is vague, overbroad, or violates the due process clause or any other clause of the Federal or State Constitutions. We therefore reject the constitutional challenges to the statute.

II

Having determined that the children’s statements to various third parties were properly admitted at trial, we next consider whether that evidence was corroborated at trial. As the court noted in In re Custody of Brunken (1985), 139 Ill. App. 3d 232, 487 N.E.2d 397, such corroborating evidence must be evidence which by its nature makes it more probable that the child was actually abused, and the corroboration of a child’s claim of abuse requires more than the fact that two or more witnesses may testify that the child related the claims to them.

In this case there was no independent witness to the abuse and no physical or medical evidence. Nevertheless, the statements that the witnesses attributed to Marcus were corroborated, at least in part, by the child’s trial testimony in chambers. Under the Juvenile Court Act, children are presumed competent to testify. (Ill. Rev. Stat. 1983, ch. 37, par. 704 — 6(4)(d).) We are not aware of any requirement that the child’s trial testimony be independently corroborated or that it be “clear and convincing.” In fact, the court in In re T.H. (1986), 148 Ill. App. 3d 877, 499 N.E.2d 988, specifically rejected the argument that the child’s testimony could not sustain a finding of abuse unless it was clear and convincing or independently corroborated. The standard of proof is the preponderance of evidence, and the primary consideration is the best interest and welfare of the children. (In re Simmons (1984), 127 Ill. App. 3d 943, 469 N.E.2d 215.) After carefully reading the transcript, we find that the evidence as to the father’s abusive behavior was sufficient, but that the evidence as to the mother’s behavior was not.

THE CASE AGAINST THE FATHER

Marcus told the judge that he and his dad and Marla played a game, “suck your pee-pee.” Marcus testified that he would suck his father’s penis and his father would suck his. In his words, it felt “hard, and feels like blood coming out.” He also said that his father put his finger in Marla’s “pee-pee.”

In addition, the record contains evidence that the mother left the father and went to Oregon because of the abusive behavior of the father. Although she later decided that the father had not sexually abused Marla, she testified that her father had hit Marcus on several occasions.

We believe that the above evidence corroborates some of the statements that the State’s witnesses attributed to Marcus. He had told both Cohen and Robinson of acts of fellatio that had occurred in the bathroom and bedroom. The description he gave them is substantially the same as what he testified to in chambers. As for the father’s abuse of Marla, the social worker’s testimony that Marcus told her that his father put his finger in Marla’s vagina was corroborated by Marcus’ in-court testimony.

The trial judge did not believe that the social workers’ testimony had been fabricated. Nor did he believe that the children made up the allegations. We conclude that the adjudication of neglect, based upon the finding of the father’s sexual abuse of the children, is not against the manifest weight of the evidence. The fact that Marcus’ in-court and out-of-court statements did not mirror each other does not mean that he made up the allegations or that he was not in fact abused. Repeated or leading questioning by adults on sensitive matters may cause a child to state what he believes is expected of him by the particular questioner. Some types of questions may suggest certain answers; others may be just plain confusing. The children were questioned by attorneys for all of the parties, the State, the father, the mother, and the guardian. The questions asked by the various attorneys often overlapped, although the lawyers had differing purposes and undoubtedly hoped to elicit responses favorable to their clients. Some confusion may have arisen over the attempt of the various attorneys to pin down certain details of possibly marginal relevance, such as the particular room in which the sexual abuse occurred. For example, many questions focussed on what happened in the bathroom. Marcus had testified to acts of fellatio, at one point indicating that there was such one occasion in the bathroom in which Marla was present. On cross-examination, one of the parent’s attorneys asked, during cross-examination, the following, “Did you tell me before that you put your pee-pee in your daddy’s mouth onceV’ (Emphasis added.) Marcus replied, “Yes.” The attorney then asked, “Now today, you said it happened lots of times. Did it happen once or lots of times?” Marcus answered, “Lots of times.” While there may have been an attempt in this questioning to show that Marcus’ testimony contradicted itself, it appears from Marcus’ other testimony that the fellatio incidents had occurred in both the bathroom and bedroom. Hence, it would not be inconsistent to say a certain incident happened once (in the bathroom) and lots of times (in the bedroom).

We do not find Marcus’ testimony to be without contradictions, however. In fact, he made different statements concerning who was present when his father was abusing him, whether his mother was there, and what his father did to Marla. Our review of the record, however, leads us to concur in the trial court’s decision concerning the father’s abuse of both children. There is sufficient evidence to support the court’s finding and we must defer to the court’s determination as to the credibility of the witnesses. See In re T.H. (1986), 148 Ill. App. 3d 877, 499 N.E.2d 988.

THE CASE AGAINST THE MOTHER

The evidence against the mother, however, is a different matter. Marla did not accuse the mother of any sexual abuse and, in fact, testified in her favor at trial. Marcus’ statements in May 1984, to the effect that his mother sexually abused him by inserting her finger into his anus, was uncorroborated by any evidence, including Marcus’ trial testimony. At trial, Marcus did not state that his mother abused him in any way. He did state, at one point, that he touched her “near her pee-pee” and that it felt “fur and skinny.” That was the sole statement from which abuse could be inferred, and he contradicted it himself by repeatedly denying that she had touched him or that he had touched her. He specifically stated that she was not present when the father was abusing him. There was no evidence presented that she knew that the father was sexually abusing the children, at least until she left him to go to Oregon. The inference that she left him because he was abusing the children does not establish that she had allowed him to do so or was abusing them herself. Therefore, we conclude that the State did not establish that the mother abused the children or knowingly allowed the father to do so.

While we reverse that portion of any findings that include the mother as an active or even passive participant in the sexual abuse, we affirm the court’s implicit finding that she was unable to prevent the abuse from occurring. The record indicates that the mother was, at least to a degree, mentally or educationally handicapped. At the time the abuse was occurring she may not have been able to protect the children from her husband. She later decided that he did not sexually abuse the children. For that reason the trial court’s adjudication of wardship, based on the finding that the family environment was harmful to the children, was justified. The safety of the children was of paramount importance, and their removal from the parents’ home was necessary, even if the mother was not directly responsible for the abuse. She did leave her husband, for the sake of herself and her children, when she went to Oregon. The record also contains information that after the trial, when the children were made wards of the State, she divorced her husband, underwent therapy, and attempted to find employment and a home for the children in the hopes of regaining custody. Her parental rights and interests were not terminated but, necessarily, were subordinated to the safety of the children. See In re Gonzales (1974), 25 Ill. App. 3d 136, 143-44, 323 N.E.2d 42 (court may use a flexible standard of proof to accommodate different factual situations).

Ill

The parents next challenge the fairness of the trial, asserting that two of the State’s witnesses improperly gave expert opinion testimony when they were not tendered or accepted as expert witnesses. This argument focuses on the testimony of Gabriella Cohen and Shirley Robinson, who testified regarding their use of tools and techniques to elicit statements from the minors. Cohen admitted that the books and drawings that she had used in questioning the children had not been standardized and that their validity had not been proven. Robinson gave her conclusion that Marla’s use of the color red in a drawing of her father indicated possible abuse. According to the parents, this is reversible error.

We do not agree. Cohen and Robinson, both of whom had substantial experience in child sex abuse cases, related what had transpired during their interviews with the children. Cohen’s book of pictures, standardized or not, was used in the course of an interview designed to help a small child describe what had happened to her. Cohen did not give her own opinion regarding the parents’ abuse of the children, nor would she have been allowed to, as she was not offered as an expert to give opinion testimony. Her description of the book and Marla’s reactions to certain pictures was simple narrative, subject to cross-examination, and the court did not hear testimony from an expert as to how the statements should be interpreted.

The one conclusion that the trial court allowed in evidence was Robinson’s statement that Marla’s use of a red crayon to draw her father’s penis was “indicative of sexual abuse.” The trial judge elicited this response by asking the witness what conclusion she had drawn from the use of the red color. Technically, this conclusion, which was not based upon facts in evidence, should not have been admitted. Robinson simply told the judge that there was some published research indicating that the drawing of a penis in red indicates sexual abuse and that the majority of children who do that have been molested. This testimony, for what it is worth, probably should have been stricken. Nevertheless, we do not find it to be reversible error. The State’s case did not turn on the color of crayon Marla used in drawing her father, and the testimony concerning it seems of little importance, particularly since this was not a jury trial. We find the admission of the conclusory statement to be harmless error. See In re K.L.M. (1986), 146 Ill. App. 3d 489, 496 N.E.2d 1262.

The mother asserts that the trial court committed further error by allowing the State to repeatedly question her about a document that she signed in Oregon, which accused her husband of physical and psychological abuse. The mother, unable to read, apparently. signed the statement after it was read to her. At trial, she denied that the person in Oregon who read her the statement used the same words as the State’s attorney did in reading portions of the statement at trial. Since her testimony at trial arguably contradicted some of the allegations in the document, she now argues that the State’s use of the statement for impeachment was improper because the State did not offer the document as an exhibit and did not complete its impeachment by bringing in the person who had prepared the document.

We find little merit to this argument. We do not find that the State’s questions regarding the document seriously impeached her trial testimony because she never denied that she and the children left for Oregon because of marital problems and because her husband was hitting Marcus. The State read from the document that she left “because of severe mental and physical abuse to [her] and her children.” She denied that that line was read to her. She did agree, however, that she had been having marital problems and that she was fearful for the children. The Oregon document apparently did not specify sexual abuse as a reason. In any event, we do not find that the attempted impeachment, if it was that, had any real bearing on her credibility because she did not deny that the statements in the document were true; she simply testified that she could not read it herself and that she did not recall it being read to her in the manner that the State’s Attorney did at trial.

The parents list some final objections to the trial proceedings, none of which amount to reversible error. The trial court’s comments on the case during his oral ruling indicate his awareness and consideration of all of the evidence. Overall, the parents received a fair trial. The standard of proof requires only that it appear more likely than not that abuse occurred. As we have held, we are satisfied that it did, that the father and we have held, we are satisfied that it did, that the father and mother were unable to provide a safe environment for the children, and that the trial court’s findings and disposition are appropriate.

For the foregoing reasons, we affirm the findings of the trial court as to the father’s abuse of the children, reverse the finding that the mother abused or knowingly allowed the abuse to occur, and affirm the dispositional ruling that placed the children in foster care. The parents’ rights were not terminated and one or both may regain custody at a later date.

Affirmed in part; reversed in part.

JTGANTI, P.J., and JOHNSON, J., concur.

      Skoler, a psychologist, describes the difficulties inherent in child sex abuse prosecution and advocates the use of new hearsay exceptions to allow courts to address the problem meaningfully. His article analyzes constitutional challenges similar to the ones that the parents make in the pending case and concludes that creation of “a new hearsay exception for child reports of sexual abuse is necessary, inherently reliable” and protects children from the trauma of testifying in court. 18 J. Marshall L. Rev. at 7.


source: Caselaw Access Project

author: JUSTICE McMORROW PRESIDING JUSTICE JIGANTI,

license: Public Domain

text:
    THE CHICAGO BAR ASSOCIATION et al., Plaintiffs and Counterdefendants-Appellees, v. ROBERT G. CRONSON, Auditor General of the State of Illinois, Defendant and Counterplaintiff-Appellant.
    First District (4th Division)
    No. 1—87—2634
    Opinion filed May 18, 1989.

      JIGANTI, P.J., dissenting.
    Neil F. Hartigan, Attorney General, of Springfield (Samuel W. Witwer, Sr., and Samuel W. Witwer, Jr., Special Assistant Attorneys General, of Chicago, of counsel), for appellant.
    William J. Harte and David J. Walker, both of William J. Harte, Ltd., John F. McCarthy and Richard Phelan, both of McCarthy & Levin, John C. O’Malley and Deborah M. Kennedy, all of Chicago, for appellees.
   JUSTICE McMORROW

delivered the opinion of the court:

Robert G. Cronson, Auditor General of the State of Illinois (the Auditor General), appeals from an order of the circuit court of Cook County determining that the Auditor General has no authority to conduct an audit of the funds of the Attorney Registration and Disciplinary Commission of the Supreme Court of the State of Illinois (the Disciplinary Commission or Commission) or the funds of the State Board of Law Examiners of the Supreme Court of the State of Illinois (the Board of Law Examiners).

We conclude that the Auditor General’s audit of the funds of the Disciplinary Commission and the Board of Law Examiners was not envisioned in article VIII of the 1970 Illinois Constitution (Ill. Const. 1970, art. VIII) or in that constitutional provision’s statutory codification in the Illinois State Auditing Act (Act) (Ill. Rev. Stat. 1987, ch. 15, par. 301 — 1 et seq.). We further determine that the Auditor General’s audit of the funds of the Disciplinary Commission and the Board of Law Examiners, with report of said audit to the General Assembly and the Governor, would violate the separation of powers clause of the 1970 Illinois Constitution. (Ill. Const. 1970, art. II, §1.) We also conclude that no genuine issues of material fact appeared in the record to prevent summary judgment. Consequently, we affirm the trial court’s order.

The instant cause was initiated when the Chicago Bar Association (the CBA), a not-for-profit association composed primarily of Illinois attorneys who practice law in the Chicago area, and other plaintiffs who had paid a fee to either the Board of Law Examiners or the Disciplinary Commission, filed a complaint for declaratory and other relief against the Auditor General, the Disciplinary Commission, and the Board of Law Examiners. In this complaint, the CBA sought a declaration that the Illinois Constitution and applicable statutes do not authorize the Auditor General to audit the funds of the Disciplinary Commission or the Board of Law Examiners. The trial court realigned the Disciplinary Commission and the Board of Law Examiners as plaintiffs in the CBA suit. Thereafter, the Disciplinary Commission and the Board of Law Examiners filed a complaint similar to that filed by the CBA.

The Auditor General answered the complaints and filed a counterclaim against the CBA, the Disciplinary Commission, and the Board of Law Examiners. This counterclaim sought a declaration that the Auditor General does possess the authority, pursuant to the 1970 Illinois Constitution and applicable statutes, to conduct audits of the funds of the Disciplinary Commission and the Board of Law Examiners. Parties filed appropriate responses or replies to these pleadings. Following discovery, the CBA, the Disciplinary Commission, the Board of Law Examiners, and the Auditor General all filed cross-motions for summary judgment. The following stands undisputed in the record.

The Auditor General has sought to perform an audit of the receipt and use of the funds administered by the Disciplinary Commission and the Board of Law Examiners since 1977. It is the Auditor General’s position that these entities are State agencies, that they are each administered by public funds, and that their audit by the Auditor General would not violate separation of power principles provided for in the 1970 Illinois Constitution. The Disciplinary Commission and the Board of Law Examiners have refused audit by the Auditor General on the ground that they are not State agencies administering public funds within the scope of article VIII or the Illinois State Auditing Act, and, pursuant to principles of separation of powers, cannot be audited by the Auditor General.

In 1933, the Illinois Supreme Court commissioned the Board of Governors of the Illinois State Bar Association and the Board of Managers of the CBA to investigate and make such charges of attorney misconduct as may be necessary, pursuant to then Supreme Court Rule 41 (Ill. Rev. Stat. 1933, ch. 110, par. 259). The activities of these bar associations in this regard were funded wholly from the associations’ private fees from attorneys who were members of the organizations. The supreme court altered this arrangement in 1973 by the creation of the present Disciplinary Commission pursuant to rules of the Illinois Supreme Court (see 107 Ill. 2d Rules 751 through 774), which asserts the court in its registration of persons licensed to practice law in this State, and in the court’s investigation and discipline of misconduct of those attorneys so registered. (See 107 Ill. 2d R. 752.) Members of the Commission, and the Administrator of the Commission, are appointed by the Illinois Supreme Court. (107 Ill. 2d Rules 751, 752.) To fund the Commission’s performance of its duties, the Disciplinary Commission collects and administers a disciplinary fund. (107 Ill. 2d R. 751(e)(5).) The only source of this disciplinary fund is a registration fee which must be paid on an annual basis by each attorney admitted to practice law in this State. (107 Ill. 2d R. 756.) The Disciplinary Commission is not funded from any. form of State taxation or revenue, its funds are not appropriated by, authorized by, or otherwise governed by enactments of the Illinois legislature, and the Disciplinary Commission utilizes no State facilities, equipment, property, or supplies. The Disciplinary Commission’s funds are also not paid to, or maintained by, the State Treasurer. An independent audit of the funds of the Disciplinary Commission has been'conducted each year by a private accounting firm. (See 107 Ill. 2d R. 751(e)(5).) This audit has been submitted to the Illinois Supreme Court and published each year in the Disciplinary Commission’s annual public report. See 107 Ill. 2d R. 751(e)(5).

The Board of Law Examiners was created in 1897 pursuant to rules of the Illinois Supreme Court (168 Ill. R. 39, currently codified at 107 Ill. 2d Rules 701 through 709) to assist the court in its investigation and disposition of applications submitted by persons seeking to be admitted to the Illinois bar. (See 107 Ill. 2d Rules 704, 705, 709.) The Board is composed of individuals appointed by the Illinois Supreme Court. (107 Ill. 2d R. 702.) To fund the Board’s performance of its duties, the Board of Law Examiners collects and administers an application fund. (107 Ill. 2d R. 706.) The only source of this fund is an application fee which must be paid by each person seeking to be admitted to the Illinois bar. (107 Ill. 2d R. 702(c).) Similar to the Disciplinary Commission, the Board of Law Examiners is not funded from any form of State taxation or revenue, its funds are not appropriated by, authorized by, or otherwise governed by enactments of the Illinois legislature, and the Board of Law Examiners utilizes no State facilities, equipment, property, or supplies. The accounts of the Board of Law Examiners are also not paid to or maintained by the State Treasurer. The Board of Law Examiners’ funds are audited each year by a private accounting firm and reported to the Illinois Supreme Court. (107 Ill. 2d R. 702(d).) Funds collected in excess of the expenses of the Board of Law Examiners are applied “as the Court may from time to time direct.” 107 Ill. 2d R. 702(d).

The trial court determined that the Disciplinary Commission and the Board of Law Examiners are not State agencies administering public funds within the scope of the Auditor General’s powers found in article VIII of the 1970 Illinois Constitution and the Illinois State Auditing Act. The trial court further determined that the Auditor General’s audit of the funds of the Disciplinary Commission and the Board of Law Examiners would violate principles of separation of powers. Based upon these determinations, the trial court entered summary judgment in favor of the CBA, the Disciplinary Commission, and the Board of Law Examiners. The Auditor General’s appeal followed.

Opinion

The Auditor General argues that he is an officer of constitutional rank whose powers include the audit of all public funds of this State. The Auditor General maintains that he has the constitutional duty to audit the funds of the Disciplinary Commission and the Board of Law Examiners, because both are State agencies that administer public funds. However, the question presented in this appeal is not simply whether the Board of Law Examiners and the Disciplinary Commission are, in a broad or general sense, State agencies using public funds. Rather, the issue presented here is a more narrow one, i.e., whether the Board of Law Examiners and the Disciplinary Commission are State agencies administering public funds subject to the audit powers of the Auditor General pursuant to article VIII of the 1970 Illinois Constitution and the Illinois State Auditing Act.

Article VIII provides a comprehensive scheme for the control, management, and audit of State finances, to ensure that public funds are used for public purposes and that reports of the use of public funds are made available to citizens of this State. (See, e.g., 7 Report of Proceedings, Sixth Illinois Constitutional Convention 2007 et seq. (Report of the Committee of Revenue and Finance) (hereinafter cited as Proceedings).) To achieve these objectives, article VIII first sets out that “[pjublic funds, property or credit shall be used only for public purposes.” (Ill. Const. 1970, art. VIII, §1(a).) It further provides, “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.” (Ill. Const. 1970, art. VIII, §1(b).) In addition, “[rjeports and records of the obligation, receipt and use of public funds of the State, units of local government and school districts are public records available for inspection by the public according to law.” Ill. Const. 1970, art. VIII, §1(c).

Article VIII accords to the Governor the power to prepare a yearly State budget, “set[tingj 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.” (Ill. Const. 1970, art. VIII, §2(a).) The Governor “shall *** submit” this budget to the General Assembly. (Ill. Const. 1970, art. VIII, §2(a).) Although the Governor prepares and submits the State budget, it is the General Assembly that must authorize expenditures in accordance with the Governor’s proposed budget; thus, article VIII states, “The General Assembly by law shall make appropriations for all expenditures of public funds by the State.” Ill. Const. 1970, art. VIII, §2(b); see also Ill. Const. 1970, art. IX, §1.

Article VIII thereafter mandates that the “General Assembly shall provide by law for the audit of the obligation, receipt and use of public funds of the State.” (Ill. Const. 1970, art. VIII, §3(a).) It further provides, “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.” (Ill. Const. 1970, art. VIII, §3(b).) The 1970 Illinois Constitution gives no definition for the term “public funds.”

The Illinois State Auditing Act is designed to “implement[ ] Article VIII, Section 3 of the Constitution, and shall be construed in furtherance of those provisions.” (Ill. Rev. Stat. 1987, ch. 15, par. 301— 2(a).) 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 under the direction and control of the Auditor General, 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. 1987, ch. 15, par. 301 — 2(b).) In the furtherance of these objectives, the Act is “intended to govern the Auditor General under the control and direction of the General Assembly” (Ill. Rev. Stat. 1987, ch. 15, par. 301 — 2(c)) and expressly recognizes the Auditor General as a “legislative officer of the State under the [1970 Illinois] Constitution.” Ill. Rev. Stat. 1987, ch. 15, par. 301 — 2(c).

The Act does not define the term “public funds,” and states simply that the phrase “public funds of the State” “has the meaning ascribed to that term in Article VIII of the Constitution.” (Ill. Rev. Stat. 1987, ch. 15, par. 301 — 18.) The Act 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 traits 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 Illinois State Auditing Act states that the “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. 1987, ch. 15, par. 303 — 1.) A “post audit” or “audit” is “a post facto examination of books, documents, records, and other evidence relating to the obligation, receipt, expenditure or use of public funds of the State, including governmental operations relating to such obligation, receipt, expenditure, or use.” (Ill. Rev. Stat. 1987, ch. 15, par. 301 — 12.) A post audit or audit may be “a financial audit, a management audit or a program audit, *** or some combination thereof.” Ill. Rev. Stat. 1987, ch. 15, par. 301 — 12.

Financial audits are generally designed to determine “whether the audited agency has obligated, expended, received and used public funds of the State in accordance with the purpose for which such funds have been appropriated or otherwise authorized by lav/.” (Ill. Rev. Stat. 1987, ch. 15, par. 301 — 13(a).) The Auditor General is obligated by the Act to perform a financial audit of each State agency at least once during every biennium. (Ill. Rev. Stat. 1987, ch. 15, par. 303 — 2.) In conducting these required financial audits, the Auditor General is permitted to “inquire into and report upon matters properly within the scope of a management or program audit.” (Ill. Rev. Stat. 1987, ch. 15, par. 303 — 2.) A management audit determines whether the audited agency is managing or utilizing its funds in an economical and efficient manner. (Ill. Rev. Stat. 1987, ch. 15, par. 301 — 14.) A program audit determines whether the agency’s objectives are being achieved efficiently and effectively through the use of public funds. Ill. Rev. Stat. 1987, ch. 15, par. 301 — 15.

Upon completion of an audit, the Auditor General “shall submit a copy of each audit report to the [Legislative Audit] Commission, the Governor, the Speaker and minority leader of the House of Representatives and the President and minority leader of the Senate.” (Ill. Rev. Stat. 1987, ch. 15, par. 303 — 14.) The Auditor General must also submit quarterly reports of his activities to the Legislative Audit Commission, and annual reports summarizing all audits, investigations and special studies to the Legislative Audit Commission, the General Assembly, and the Governor. Ill. Rev. Stat. 1987, ch. 15, par. 303 — 15.

In order to determine the scope of article VIII and the Illinois State Auditing Act with respect to the Auditor General’s power to audit the funds of the Board of Law Examiners and the Disciplinary Commission, we must ascertain the plain and ordinary meaning of article VIII and the Illinois State Auditing Act in the constitutional and legislative contexts in which they appear. See, e.g., United Citi zens v. Coalition to Let the People Decide in 1989 (1988), 125 Ill. 2d 332, 338-39, 531 N.E.2d 802.

When the powers and duties of the Auditor General are placed in the constitutional and legislative scheme whereby the legislative post of Auditor General is created, the powers of the position are defined, and the branches of State government to which the Auditor General must report are specified, it is readily apparent that the role of the Auditor General is to conduct audits with respect to all funds appropriated or otherwise authorized by the General Assembly following the Governor’s preparation and submission of the State budget. Included in the scope of the Auditor General’s jurisdiction are those public funds, appropriated or otherwise authorized by legislative enactment, that are in the care of State agencies created by the Illinois Constitution, by legislative enactment, or by executive order, including those funds appropriated by the General Assembly to the Illinois Supreme Court. See Madden v. Cronson (1986), 114 Ill. 2d 504, 501 N.E.2d 1267.

Because the Auditor General must audit funds appropriated or otherwise authorized by the General Assembly after preparation and submission of the Governor’s budget, especially when those funds are expended by agencies created in the Illinois Constitution, State statute, or executive order, the Auditor General must report his findings to the General Assembly and the Governor. (See 2 Proceedings 889, 890, 914 (remarks of Delegate Brannen); 2 Proceedings 916 (remarks of Delegate Coleman); 2 Proceedings 918 (remarks of Delegate Elward); 2 Proceedings 913, 919 (remarks of Vice-President Smith); 5 Proceedings 4215, 4254, 4471 (remarks of Delegate Durr); 5 Proceedings 4214 (remarks of Delegate Mullen); 5 Proceedings 4217 (remarks of Delegate Coleman); 7 Proceedings 2037 (Committee Report).) As stated at the Sixth Illinois Constitutional Convention, “The purpose of the postaudit section is to fix responsibility in the legislature to follow up to see that the appropriations which they pass are in fact used for the purposes which they intended in the passage of the appropriation bills.” 2 Proceedings 889 (remarks of Delegate Brannen).

However, the funds of the Disciplinary Commission and the Board of Law Examiners are not appropriated or otherwise authorized by laws enacted by the General Assembly, nor are they provided for in the annual budget of the Governor. The Disciplinary Commission and the Board of Law Examiners receive no funds by legislative appropriation or authorization, and do not depend upon a legislative or executive grant of authority to collect or administer their application or disciplinary fees. Neither the 1970 Illinois Constitution, statutes adopted by the General Assembly, nor executive order of the Governor, set forth the powers, structures, or policies of the Disciplinary Commission or the Board of Law Examiners. The functions of the Disciplinary Commission and the Board of Law Examiners fall within the inherent, exclusive, constitutional powers of the Illinois Supreme Court. (See Ill. Const. 1970, art. VI, §§1, 16; People ex rel. Brazen v. Finley (1988), 119 Ill. 2d 485, 492-93, 519 N.E.2d 898; In re Loss (1987), 119 Ill. 2d 186, 518 N.E.2d 981; In re Application of Day (1899), 181 Ill. 73, 54 N.E. 646.) Both the Disciplinary Commission and the Board of Law Examiners are created by Illinois Supreme Court rules adopted pursuant to the supreme court’s inherent, exclusive constitutional authority. In addition, the duties, structure, and authority to collect and administer funds of the Board of Law Examiners and the Disciplinary Commission derive exclusively from rules of the Illinois Supreme Court. Thus the Disciplinary Commission and the Board of Law Examiners do not fall within the scope of the audit scheme of article VIII or the Illinois State Auditing Act.

The Auditor General argues that the Disciplinary Commission and the Board of Law Examiners fall within the scope of the term “state agency” as defined in the Illinois State Auditing Act. As noted previously, the Act defines “state agency” 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.

In our view, the plain language of the definition of “state agency” in the Illinois State Auditing Act does not include the Disciplinary Commission or the Board of Law Examiners. The definition of “state agency” contains the general categories of agencies created by the Constitution and agencies created by statute or executive order. Neither the Disciplinary Commission nor the Board of Law Examiners is “created by the Constitution,” nor is either “created by or pursuant to statute” or “created by executive order.”

The Auditor General also asserts that the Illinois Supreme Court is a “state agency” under the Illinois State Auditing Act because the supreme court is created by and in the Illinois Constitution. The Auditor General further notes that the Disciplinary Commission and the Board of Law Examiners are created by the Illinois Supreme Court pursuant to the court’s grant of constitutional authority to perform the public purpose of regulating the admission and practice of law in this State. Based on these observations, the Auditor General concludes that the Disciplinary Commission and Board of Law Examiners should also be State agencies. The Auditor General contends that this interpretation would be consistent with the intent of the drafters of article VIII and the Illinois State Auditing Act that the Board of Law Examiners and the Disciplinary Commission be subject to his audit powers.

It is axiomatic that in discerning the drafters’ intent with respect to article VIII of the 1970 Constitution and the Illinois State Auditing Act, we must consider the objectives the drafters sought to achieve. (See, e.g., McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 193, 520 N.E.2d 293.) The purpose of the Auditor General’s audit of public funds is to ensure that agencies entrusted with those funds will be accountable to the branch of State government that has authorized the agency’s receipt, obligation, and use of public funds, and to the branch of State government that is capable of rectifying any irregularity in that agency’s malfeasance or nonfeasance with respect to those funds. (See, e.g., 2 Proceedings 913 (remarks of Vice-President Smith); 2 Proceedings 914 (remarks of Delegate Brannen); 5 Proceedings 4214 (remarks of Delegate Mullen); 5 Proceedings 4217 (remarks of Delegate Coleman); 5 Proceedings 4215, 4254, 4471 (remarks of Delegate Durr).) However, neither the General Assembly nor the Governor possesses the constitutional or statutory authority to alter, modify, or in any manner affect the duties, powers, composition, structure, or operation of the Board of Law Examiners or the Disciplinary Commission. In addition, neither the Illinois legislature nor the Governor has the authority to regulate the admission or practice of law in this State. Consequently, we determine that the drafters of article VIII of the 1970 Illinois Constitution and the Illinois State Auditing Act did not contemplate the Auditor General’s audit of the funds of the Disciplinary Commission and the Board of Law Examiners, with report of his audit to the General Assembly and the Governor.

The Auditor General also maintains that his audit of the accounts of the Board of Law Examiners and the Disciplinary Commission is necessary to ensure that both entities are fully accountable to the public regarding their receipt, obligation, and use of their admission and disciplinary funds. In this regard the Auditor General argues that the term “public funds of the State” must be given the same meaning in both section 1 of article VIII (regarding public report of use of public funds) and in section 3 of article VIII (regarding audit of public funds by Auditor General). The Auditor General contends that if the funds of the Board of Law Examiners and the Disciplinary Commission are not “public funds of the State” subject to the Auditor General’s authority under section 3, then their funds are not governed by section 1 regarding public report of the use of public funds. The Auditor General maintains that a failure to require the public disclosure of the use of the funds of the Board of Law Examiners and the Disciplinary Commission, under section 1, would contradict the clear intent of the drafters of article VIII that “public funds of the State” include “the broadest possible concept of the use of public funds.” (5 Proceedings 4218 (remarks of Delegate Whalen); see also 2 Proceedings 878 (remarks of Delegate Netsch to the effect that the term “public funds of the State” in draft section 2 of article VIII, eventually renumbered to section 1(c) in the 1970 Illinois Constitution, intended to include use of public funds by judicial and legislative branches).) However, the question presented in the instant cause is not whether the funds of the Board of Law Examiners and the Disciplinary Commission fall within the scope of section 1 of article VIII, and we therefore do not resolve that question herein. Furthermore, because Illinois Supreme Court rules require public report of the use and audit of the funds of the Board of Law Examiners and the Disciplinary Commission, the nondisclosure which the Auditor General fears does not arise.

The Auditor General maintains that because he audits the collection and administration of license fees of approximately 70 other professions or occupations (such as physicians, nurses, accountants, veterinarians, etc.), he should also audit the collection and administration of the admission and disciplinary fees collected by the Board of Law Examiners and the Disciplinary Commission. The professional and occupation fees audited by the Auditor General are collected and administered by agencies created by the General Assembly, not the Illinois Supreme Court. (See, e.g., Ill. Rev. Stat. 1987, ch. 111, pars. 1201 through 1236 (architects), 1701 — 1 through 1704 — 22 (barbers), 5801 through 5835 (real estate brokers).) Also, the agencies that collect and administer these professional or occupation fees expend funds that are included in the Governor’s proposed budget, appropriated or authorized by the Illinois legislature, and deposited into the State Treasury in accordance with laws enacted by the General Assembly. (See, e.g., Ill. Rev. Stat. 1987, ch. 130, par. 7.) As a result, the professional or occupation fees referred to by the Auditor General are significantly distinguishable from the admission and disciplinary funds of the Board of Law Examiners and the Disciplinary Commission.

The Auditor General also notes that he audits substantial sums of nonappropriated monies which need not be immediately submitted to the State Treasury. The Auditor General asserts that these nonappropriated funds are substantially similar to the admission and disciplinary funds collected and administered by the Board of Law Examiners and the Disciplinary Commission. The nonappropriated funds to which the Auditor General refers have been authorized by the General Assembly pursuant to statute and legislative enactment determines whether or when the funds must be paid over to the State Treasurer. (See, e.g., Ill. Rev. Stat. 1987, ch. 127, par. 167.02; see also, e.g., Ill. Rev. Stat. 1987, ch. 1081/2, pars. 14 — 101 through 14 — 151 (Illinois State Employees Retirement System); Ill. Rev. Stat. 1987, ch. 121, pars. 100 — 1 through 100 — 35 (Illinois State Toll Highway Authority); Ill. Rev. Stat. 1987, ch. 671/2, pars. 301 through 334 (Illinois Housing Development Authority).) Thus the nonappropriated funds, unlike the admission and disciplinary funds of the Board of Law Examiners and the Disciplinary Commission, depend upon a legislative grant of authority for their existence. Also, these nonappropriated funds are held by agencies created by legislative enactment.

The Auditor General also argues that his audit of the funds of the Disciplinary Commission and the Board of Law Examiners, with report of this audit to the General Assembly and the Governor, would not violate the principles of the separation of powers. The 1970 Illinois Constitution states that the “legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.” (Ill. Const. 1970, art. II, §1.) “[I]f a ‘power is judicial in character, the legislature is expressly prohibited from exercising it.’ [Citations.]” (Emphasis in original.) (People v. Joseph (1986), 113 Ill. 2d 36, 41, 495 N.E.2d 501.) The common law has long recognized that the admission and regulation of the practice of law in this State is an exclusive function of the Illinois Supreme Court and is within the scope of the supreme court’s inherent “judicial power.” (See, e.g., People ex rel. Brazen v. Finley (1988), 119 Ill. 2d 485, 492-93, 519 N.E.2d 898; In re Application of Day (1899), 181 Ill. 73, 54 N.E. 646.) This inherent judicial power includes the authority to compel the collection of the admission and disciplinary fees provided for in Illinois Supreme Court rules. (See Sharood v. Hatfield (1973), 296 Minn. 416, 210 N.W.2d 275.) We note that the Auditor General has not challenged the power of the Illinois Supreme Court to create the Board of Law Examiners or the Disciplinary Commission, or to authorize their collection of admission or disciplinary funds.

Because the Board of Law Examiners and the Disciplinary Commission are creatures of Illinois Supreme Court rule, and because their collection and administration of funds derive exclusively from a judicial grant of authority from the Illinois Supreme Court, it is for the Illinois Supreme Court, not the General Assembly or the Governor, to determine whether the Disciplinary Commission or the Board of Law Examiners has properly discharged the responsibilities delegated to them by the Illinois Supreme Court and to determine whether the Board of Law Examiners or the Disciplinary Commission has utilized its funds according to the particularized purposes for which each was created by the Illinois Supreme Court. Since the Board of Law Examiners and the Disciplinary Commission are created by supreme court rule, collect their funds solely by virtue of a judicial grant of power, and administer matters within the inherent, exclusive authority of the Illinois Supreme Court, audit of the funds of the Board of Law Examiners and the Disciplinary Commission 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. (See Joseph, 113 Ill. 2d at 43.) The Auditor General’s duties include the performance of financial audits, management audits, program audits, investigations, and special studies, either on the initiative of the Auditor General, or upon the direction of the Legislative Audit Commission or the General Assembly. (See Ill. Rev. Stat. 1987, ch. 15, pars. 303 — 2 through 303 — 5.) Reports of any audit, investigation or study must be made to the General Assembly, which may authorize further audit, investigation, or study if deemed appropriate by either the General Assembly or the Legislative Audit Commission. (See Ill. Rev. Stat. 1987, ch. 15, pars. 303 — 2 through 303 — 5.) Each of these audits, with resulting report and the possibility of remedial recommendations or further investigation by the General Assembly, the legislative Audit Commission, or the Governor, would be highly intrusive into the court’s inherent power to regulate the manner in which the Board and the Commission are structured, in which they function, and in which they obligate and use their funds.

The Auditor General suggests that he has agreed to perform no more than a financial audit of the funds of the Board of Law Examiners and the Disciplinary Commission. The Auditor General asserts that this agreement to limit the scope of his audits will obviate any potential encroachment into the supreme court’s inherent judicial power to regulate the admission and practice of law in this State. Even a limited financial audit must be submitted to both the General Assembly and the Governor. (See Ill. Rev. Stat. 1987, ch. 15, par. 303 — 14.) Furthermore, the Auditor General’s powers under the 1970 Illinois Constitution and the Illinois State Auditing Act include not only financial audits, but also management and program audits, as well as investigations and special studies directed by the General Assembly or the Legislative Audit Commission. (See Ill. Rev. Stat. 1987, ch. 15, pars. 303 — 2 through 303 — 5.) We cannot sanction the Auditor General’s partial derogation of this constitutional and statutory mandate, nor can the Auditor General agree to act in contravention to the very grant of his constitutional and statutory authority. Cf. Madden v. Cronson (1986), 114 Ill. 2d 504, 501 N.E.2d 1267.

The cases relied upon by the Auditor General support our conclusion that the Auditor General is not granted the authority, under the 1970 Illinois Constitution or the Illinois State Auditing Act, to audit the funds of the Board of Law Examiners or the Disciplinary Commission. In each Illinois Supreme Court decision relied upon by the Auditor General, public funds or assets were administered by agencies created by the Illinois Constitution, the General Assembly, or the Governor, and actions taken with respect to the public funds or assets were authorized by legislative enactment. (See Droste v. Kerner (1966), 34 Ill. 2d 495, 217 N.E.2d 73; Fergus v. Brady (1917), 277 Ill. 272, 115 N.E. 393; Board of Trade v. Cowen (1911), 252 Ill. 554, 96 N.E. 1084; see also Ill. Rev. Stat. 1987, ch. 85, par. 901 et seq.) Our decision is also in accord with similar cases from other jurisdictions. (See In re Washington State Bar Association (1976), 86 Wash. 2d 624, 548 P.2d 310; Ex parte Auditor of Public Accounts (Ky. 1980), 609 S.W.2d 682; see also State Licensing Board of Contractors v. State Civil Service Comm’n (La. App. 1959), 110 So. 2d 847, aff’d, 240 La. 231, 123 So. 2d 76.) The decision of Attorney Registration & Disciplinary Comm’n v. Harris (N.D. Ill. 1984), 595 F. Supp. 107, is also consistent with the result we reach herein, since the court ruled in that case that the Disciplinary Commission is not a “state agency” whose members and employees are entitled to social security coverage.

The Auditor General also contends, in the alternative, that the trial court should have denied the motion for summary judgment of the CBA, the Board of Law Examiners, and the Disciplinary Commission, because the record reveals genuine issues of material fact. We have reviewed the record, but find no material factual disputes between the parties. Accordingly, we find no error in the trial court’s allowance of the motion for summary judgment submitted by the CBA, the Board of Law Examiners, and the Disciplinary Commission. (See, e.g., D.B. Corkey Co. v. Koplin (1988), 176 Ill. App. 3d 1096, 531 N.E.2d 1044.) This conclusion is not altered upon consideration of the exhibits excluded by the trial court, assuming solely for the purpose of analysis that those exhibits should not have been excluded.

In summary, when the powers of the Auditor General are placed in the constitutional and legislative scheme whereby the legislative post of Auditor General is created, the powers of the position are defined, and the branches of State government to which the Auditor General must report are specified, it is readily apparent that the role of the Auditor General is to conduct audits with respect to all funds appropriated or otherwise authorized by the General Assembly following the Governor’s preparation and submission of the State budget. The functions of the Disciplinary Commission and the Board of Law Examiners fall within the inherent, exclusive, constitutional powers of the Illinois Supreme Court. Both the Disciplinary Commission and the Board of Law Examiners are created by Illinois Supreme Court rules adopted pursuant to the supreme court’s inherent, exclusive constitutional authority. In addition, the duties, structure, and authority to collect and administer funds of the Board of Law Examiners and the Disciplinary Commission derive exclusively from rules of the Illinois Supreme Court.

In light of these considerations, we determine that article VIII of the 1970 Illinois Constitution and the Illinois State Auditing Act do not contemplate the Auditor General’s audit of the funds of the Disciplinary Commission and the Board of Law Examiners, with report of his audit to the General Assembly and the Governor. We further conclude that principles of separation of powers preclude the Auditor General’s audit of the funds of the Board of Law Examiners and the Disciplinary Commission.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

JOHNSON, J., concurs.

PRESIDING JUSTICE JIGANTI,

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:

“§1. 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.