Monday, December 05, 2011
Terry Ekl's Motion for Illinois Supreme Court Intervention in Sealing of Lou Bianchi Special Prosecutor Files
IN THE SUPREME COURT OF ILLINOIS
DOCKET NO.:
| In Re: APPOINTMENT OF SPECIAL PROSECUTOR, Intervenors, Robert Borchert, Thomas Crane, Anthony Scimeca, John Reckamp, Appolonia Reckamp, and Mary Alger, Movants. | Original Motion for Supervisory Order pursuant to Supreme Court Rule 383 Case No. 2009 MR 142 Appeal from the Circuit Court of the Twenty-Second Judicial Circuit McHenry County, Illinois. |
PETITION FOR SUPERVISORY ORDER
NOW COME the Movants, Robert Borchert, Thomas Crane, Anthony Scimeca, John Reckamp, Appolonia Reckamp, and Mary Alger (hereinafter “Movants”), by and through their attorneys, Ekl, Williams & Provenzale, LLC, and for their Petition for Supervisory Order pursuant to Illinois Supreme Court Rule 383, state as follows:
1. On April 23, 2009, a Petition for Appointment of Special Prosecutor was filed in the above-captioned matter. See Supporting Record, Exhibit A.
2. Thereafter, on September 4, 2009, the Circuit Court of the Twenty-Second Judicial Circuit, McHenry County, Illinois, granted the Petition. That same day, the Honorable Judge Gordon Graham granted McHenry County’s Petition to Intervene so that the State’s Attorney’s Appellate Prosecutor could represent the County’s interests given the existence of an apparent conflict. See Supporting Record, Exhibit B.
3. On September 18, 2009, Judge Graham appointed attorney Henry C. Tonigan, III, as a special State’s Attorney pursuant to 55 ILCS 5/3-9008 for the limited purpose of investigating and/or prosecuting any and all claims outlined in the Petition for Appointment of Special Prosecutor. The Court appointed attorney Thomas K. McQueen to assist Mr. Tonigan. See Supporting Record, Exhibit C.
4. At some point thereafter, and for reasons unknown to the public, Judge Graham sealed the court file from public view. Further, it appears that neither McHenry County nor its appointed attorneys received notice of any motion to seal the court file, thus precluding it from being heard on these matters or raising any objections.
5. Similarly, Judge Graham’s rationale for sealing the file is unknown. Also unknown is whether Judge Graham issued a written order articulating the specific factual basis for justifying the sealing of a public record. Any notice, motion, or order related to the sealing of this public record remains sealed in the court file, if it exists.
6. On January 7, 2010, and on October 1, 2010, Judge Graham expanded the appointment beyond the claims set forth in the original Petition, resulting in McHenry County to be faced with substantial legal bills from attorneys Tonigan and McQueen. See Supporting Record, Exhibit D. The payment of these bills is presently in dispute. In fact, Judge Graham issued an order requiring McHenry County to pay these legal bills; an order which McHenry County sought to appeal to the Illinois Appellate Court, Second District.
7. Pursuant to Judge Graham’s appointment, the special State’s Attorney obtained indictments in cases 2010 CF 933 and 2010 CF 934 against the elected State’s Attorney, Louis A. Bianchi, and his administrative assistant, Joyce A. Synek, respectively. See Supporting Record, Exhibit E.
8. Thereafter, the special State’s Attorney secured another indictment in case 2011 CF 169 against Louis A. Bianchi. This time, the special State’s Attorney also indicted two investigators working in the McHenry County State’s Attorney’s Office - Ronald Salgado (Case No. 2011 CF 170) and Michael McCleary (Case No. 2011 CF 171). See Supporting Record, Exhibit F.
9. On March 23, 2011, following the presentation of the State’s case in chief, directed findings of not guilty were entered in favor of both Bianchi and Synek in cases 2010 CF 933 and 2010 CF 934. See Supporting Record, Exhibit G.
10. On April 7, 2011, Movants filed a Petition to Intervene in the above-captioned case, seeking to unseal the court file in the above-captioned case and to terminate the appointment of the special State’s Attorney. See Supporting Record, Exhibit H.
11. On April 28, 2011, Judge Graham declined to rule on the Petition to Intervene based on the fact that McHenry County sought to appeal orders requiring it to pay certain fees and costs to attorneys Tonigan and McQueen.
12. Thereafter, the second criminal charge brought against Bianchi proceeded to trial alone since the indictments brought against the two investigators were dismissed by the trial judge. In August of 2011, a directed finding of not guilty was entered case 2011 CF 169. See Supporting Record, Exhibit I.
13. Following a remand order from the Illinois Appellate Court, Second District, and on October 21, 2011, the Circuit Court considered Movants’ Petition to Intervene. At this point, the removal of the Special State’s Attorney was no longer germane given the dismissals of certain indictments and directed findings of not guilty on the others; thus, the purpose of the Petition to Intervene was based solely on the unsealing of this court file.
14. At the October 21st hearing, attorneys Tonigan and McQueen raised verbal objections to the Petition to Intervene, despite the fact that in their written response they raised no objections to Movants’ desire to intervene, as well as the unsealing of the court file. See Supporting Record, Exhibit J. Nevertheless, the above-captioned case remains pending given McHenry County’s continued objection to paying attorneys Tonigan and McQueen in their capacities as Special State’s Attorneys.
15. The Circuit Court denied the Movants’ Petition to Intervene. See Supporting Record, Exhibit K. In so doing, Judge Graham compared access to a court file to accessing a prosecutor’s file, stating “I mean, could anybody go up to the State’s Attorney’s Office and say we want to have everything that’s in your file that is not even discoverable just because you brought a case against my client and I am sure the answer to that would probably be no because there would be no secrecy at all in the prosecutor’s work files or anything else.” See Supporting Record, Exhibit L, pages 7-8.
16. Further, Judge Graham found the appointment of the special State’s Attorney and the convening of a grand jury compelling reasons to seal the court file, stating “So notwithstanding the fact that it’s an - - argue that there is a compelling reason I think certainly when a special prosecutor is appointed and there is a grand jury convened as a result of that that that in and of itself is a compelling reason as to why that file would be sealed.” See Supporting Record, Exhibit L, page 8.
17. Lastly, Judge Graham found Movants’ Petition to Intervene to be moot since the underlying criminal cases were concluded, stating “Conversely what compelling reason is there now to unseal it because was we indicated for the greater portion of things this file is moot. This case is pretty much over.” See Supporting Record, Exhibit L, page 8.
18. The public has three different claims to access a court file: (1) a constitutional right of access based on the first amendment of the federal constitution and article one of our State constitution; (2) common-law right of access which parallel the constitutional right of access; and (3) a statutory right of access as part of the Illinois Clerks of Court Act (705 ILCS 105/16(6) (West 2010)). See Kelly, 397 Ill. App. 3d at 242, 921 N.E.2d at 344, citing People v. Pelo, 384 Ill. App. 3d 776, 780-81, 894 N.E.2d 415, 418-19 (4th Dist. 2008). The presumption in favor of public access constitutes an immediate interest to the public which should not be subject to delay or attempts to circumvent these fundamental principles.
19. In this regard, the Illinois legislature has determined that “the public interest is best served by increasing the public’s knowledge about what is transpiring inside the judicial process.” In re Marriage of Johnson, 232 Ill. App. 3d 1068, 1072, 598 N.E.2d 406, 409 (4th Dist. 1992), quoting Newell v. Field Enterprises, Inc., 91 Ill. App. 3d 735, 748, 415 N.E.2d 434, 446 (1st Dist. 1980). As this Court previously found, the availability of court files for public scrutiny is essential to the public’s right to “monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system.” Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 230, 730 N.E.2d 4, 15 (2000). “[L]itigation is a public exercise; it consumes public resources. It follows that in all but the most extraordinary cases - perhaps those involving matters of weighty national security - complaints must be public.” Id. at 237, 730 N.E.2d at 18.
20. Nevertheless, Illinois courts have recognized that the right to access court files is not absolute. In order to overcome the presumption of access, courts must finding a compelling interest, accompanied by specific factual findings, why access should be restricted. Further, the protective order must be drafted in the manner least restrictive of the public’s interest. See Marriage of Johnson, 232 Ill. App. 3d at 1072-75, 598 N.E.2d at 409-11; Kelly, 392 Ill. App. 3d at 255, 921 N.E.2d at 355.
21. In this case, the Circuit Court flipped Illinois law on its head when it found that no compelling reason existed for unsealing this public record. See Supporting Record, Exhibit L, page 8. Instead, it is the Circuit Court’s burden to find a compelling interest justifying the sealing of a public record and to make specific findings as to why access should be restricted. Here, very little is known about the contents of the court file since it was sealed within days of the Special State’s Attorney’s appointment.
22. All that is now known about this case is that the Special State’s Attorney was appointed to investigate and prosecute the elected State’s Attorney of McHenry County, Louis A. Bianchi, and several of his staff members. Given the sealing of the court file, it is unknown if a motion to seal was filed and what compelling interests were articulated for sealing these public records. Nonetheless, what possible compelling interest would require the sealing of the entire court file? The Circuit Court’s citation to the fact that a grand jury was convened to justify the sealing of an entire court file is ridiculous since it would be similarly applicable to all felonies in which a grand jury returned a bill of indictment.
23. Further, now that the criminal indictments have been dismissed and/or directed verdicts entered, no compelling reason exists for maintaining the seal on this entire court file except to hide public records from the citizens of this State. In fact, the Special State’s Attorney did not originally object to the unsealing of this court file. See Exhibit J, page 2. Thus, and contrary to the Circuit Court’s logic, the conclusion of the criminal investigation and prosecution does not provide a basis for sealing these public records, but rather provides a reason for lifting the seal and shedding light on this appointment and the reasons for sealing such records.
24. Obviously, there is no question that sealing an entire court file is the most restrictive manner in which to preclude the public’s presumptive right to access. However, in denying the Movants’ Petition to Intervene and refusing to unseal the court file, the Circuit Court is able to avoid any immediate scrutiny of its decision. The Circuit Court has positioned itself so as to delay any public access to this court file until years from now after the underlying case has ended and the Illinois Appellate Court, Second District, considers the merits of Movants’ Petition to Intervene, and in turn, their Motion to Unseal.
25. By denying the Petition to Intervene, the Circuit Court precluded the Movants from seeking appellate review of its decision to seal, and refusal to unseal, the court file until the entry of a final order in this case, which is likely months, if not years, away due to the on-going dispute over the payment of attorney’s fees and costs incurred by special State’s Attorneys Tonigan and McQueen in the investigation and prosecution of Bianchi, Synek, Salgado, and McCleary. Board of Trustees of the University of Illinois v. Timpone, 28 Ill. 2d 255, 259, 190 N.E.2d 786, 788 (1963) (an order denying a petition to intervene is not appealable); Chicago, Milwaukee, St. Paul and Pacific Railroad Co. v. Harris Trust and Savings Bank, 63 Ill. App. 3d 1012, 1019-20, 380 N.E.2d 835, 840-41 (1st Dist. 1978); see also Wasilevich Cosnt. Co. v. LaSalle National Bank, 222 Ill. App. 3d 927, 929, 584 N.E.2d 499 (1st Dist. 1991) (a majority of authority requires an express Rule 304(a) finding in order to appeal the denial of a petition to intervene).
26. Further, by making certain findings concerning the merits of the Motion to Unseal, the Circuit Court’s refusal to permit intervention appears to be premised on the erroneous belief that a court file can be sealed in its entirety for all of eternity. Typically, Illinois Supreme Court Rule 307 would allow a party to appeal a decision to seal or unseal particular documents after that party was allowed to intervene to pursue such a motion. See People v. Kelly, 397 Ill. App. 3d 232, 242-47, 921 N.E.2d 333, 344-49 (1st Dist. 2009).
27. However, in this instance, Judge Graham has precluded the Movants from in any way challenging his decision to seal this public record by denying their motion to intervene (a decision which is not final and appealable), thereby preventing the Illinois Appellate Court, Second District, from having jurisdiction to review this decision. Instead, the Movants are required to wait for the completion of the underlying case until seeking appellate review of the Circuit Court’s erroneous decision to seal this court file.
28. Moreover, once the Circuit Court’s decision is appealed, it is possible that the only issue which may be considered by the Illinois Appellate Court, Second District, would be the refusal to allow the Movants to intervene, and not the merits of the motion to unseal, since the Circuit Court never conducted a hearing on the unsealing of the court file where it would have been required to consider McHenry County’s position on this issue and to weigh whatever compelling interest exists for sealing these public records against the public’s presumptive right to access this court file. Instead, the Circuit Court sealed a public record, which related directly to the appointment of a Special State’s Attorney presumably at the request of the very attorneys appointed by the court and without any input from the McHenry County.
29. The Circuit Court has unjustifiably denied, and continues to deny, access to these public records for no readily apparent reason, and in so doing, has delayed the public’s access to these records by unnecessarily connecting the decision to seal or unseal this court file with unrelated matters presently being litigated in the underlying lawsuit. As such, this Court’s supervisory authority is necessary in order to provide the Movants and the public with access to the court file, or to otherwise provide them with a basis for challenging the Circuit Court’s erroneous decision. Absent intervention by the Illinois Supreme Court, the citizens of this State will be unreasonably precluded from accessing public records within this court file for months, if not years.
30. The Circuit Court’s decision requires immediate review so as to preserve the honesty and integrity of the judicial process.
WHEREFORE, the Movants, Robert Borchert, Thomas Crane, Anthony Scimeca, John Reckamp, Appolonia Reckamp, and Mary Alger, request this Honorable Court grant the following relief:
A. Enter a supervisory order unsealing this court file; or alternatively,
B. Enter a supervisory order finding that the Movants may immediately appeal the Circuit Court’s denial of their Motion to Intervene and their Motion to Unseal this court file to the Illinois Appellate Court, Second District.
Respectfully Submitted,
________________________________
Ekl, Williams & Provenzale, LLC
Attorneys for the Movants
Terry A. Ekl, Esq.
Vincent C. Mancini, Esq.
Tracy Stanker, Esq.
Ekl, Williams & Provenzale, LLC
901 Warrenville Road, Suite 175
Lisle, IL 60532
(630) 654-0045
# posted by Cal Skinner : 12:53 PM
