Bianchi v. McQueen

• Decision Date: 30 June 2016
• Docket Number: No. 2–15–0646.,2–15–0646.
• Parties: Louis A. BIANCHI, Joyce A. Synek, Ronald J. Salgado, and Michael J. McCleary, Plaintiffs–Appellants, v. Thomas K. McQUEEN, Daniel Jerger, Robert Scigalski, James Reilly, Patrick Hanretty, Richard Stilling, and Quest Consultants International, Ltd., Defendants–Appellees.
• Court: United States Appellate Court of Illinois

58 N.E.3d 680

405 Ill.Dec. 419

Louis A. BIANCHI, Joyce A. Synek, Ronald J. Salgado, and Michael J. McCleary, Plaintiffs–Appellants,

v.Thomas K. McQUEEN, Daniel Jerger, Robert Scigalski, James Reilly, Patrick Hanretty, Richard Stilling, and Quest Consultants International, Ltd., Defendants–Appellees.

No. 2–15–0646.

Appellate Court of Illinois, Second District.

June 30, 2016.

Rehearing Denied Aug. 1, 2016.

Terry A. Ekl and Tracy L. Stanker, both of Ekl Williams & Provenzale LLC, of Lisle, for appellants.

Joel D. Bertocchi and Steven M. Puiszis, both of Hinshaw & Culbertson LLP, of Chicago, for appellee Thomas K. McQueen.

Robert Marc Chemers, Scott L. Howie, and Suzanne M. Crowley, all of Pretzel & Stouffer, Chtrd., of Chicago, for other appellees.

OPINION

Justice McLAREN

delivered the judgment of the court, with opinion.

¶ 1 After plaintiffs, Louis A. Bianchi, the State's Attorney of McHenry County, Illinois, and Joyce A. Synek, Ronald J. Salgado, and Michael J. McCleary, three of Bianchi's employees, were acquitted of charges brought by an assistant special prosecutor in McHenry County, they sued defendants, Thomas K. McQueen and Daniel Jerger, Robert Scigalski, James Reilly, Patrick Hanretty, Richard Stilling, and Quest Consultants International, Ltd. (collectively, Quest investigators), for malicious prosecution, intentional infliction of emotional distress, and defamation. The trial court dismissed plaintiffs' amended complaint with prejudice for lack of subject matter jurisdiction, finding that defendants were state employees and thus entitled to sovereign immunity. Plaintiffs appeal, arguing that the trial court erred by dismissing their amended complaint, because defendants were not entitled to sovereign immunity. We reverse in part, affirm in part, and remand for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 The following facts are taken from plaintiffs' amended complaint. In 2004, Bianchi was elected to the office of State's Attorney, and in 2008 he was reelected. In 2004 Bianchi “promptly began reforming the [office.]” This “frustrated the political operatives in McHenry County, who had obtained more favorable accommodations with the previous administration.” Therefore, Bianchi acquired a few enemies. In 2006 one of the secretaries in his office, Amy Dalby, resigned and took approximately 5,000 confidential and sensitive documents with her. In October 2007, Dalby, along with Kristen Foley, a disgruntled assistant State's Attorney whom Bianchi had demoted, delivered the documents to the media and to Daniel Regna, Bianchi's opponent in the upcoming Republican primary election. In February 2008 Bianchi won the primary, which was “highly contentious and sharply divided supporters of Bianchi's reforms from the political operatives who supported Regna.”

¶ 4 Bianchi learned of the document theft and asked a judge to appoint a special prosecutor to investigate. The judge obliged Bianchi, and Dalby was charged with several felonies. Dalby eventually pleaded guilty to computer tampering in June 2009. In the meantime, Regna and Dalby, aided by unnamed political enemies of Bianchi, sought the appointment of another special prosecutor, this time to investigate allegations that “Dalby performed political work” while working for the State's Attorney's office under Bianchi.¹ Judge Gordon E. Graham appointed Henry C. Tonigan III as a special State's Attorney “to investigate and/or prosecute if necessary any and all persons involved in the underlying pleadings herein [pursuant to section 3–9008 of the Counties Code (55 ILCS 5/3–9008 (West 2008)

) ].” The order also stated “that Attorney Thomas K. McQueen shall assist the specially appointed prosecutor, Henry C. Tonigan, III as directed by him on all matters relative to this case.”

¶ 5 Tonigan and McQueen learned that the limitations period had run on Dalby's allegations. In November 2009, Tonigan “sought to expand the scope of his appointment as a special prosecutor by sending Judge Graham an ex parte letter.” The court agreed and authorized Tonigan to investigate and prosecute “any and all persons relative to the possible misuse, misappropriation or theft of public funds, public property or public personnel by McHenry County State [']s Attorney Louis Bianchi from 2005 and thereafter.” In December 2009, Tonigan retained “Quest [Consultants] to assist in the investigation of Bianchi.” The court appointed Quest Consultants and its employees, including Jerger, Scigalski, Reilly, Hanretty, and Stilling, as special investigators. At all relevant times, the Quest investigators were acting within the scope of their employment with Quest Consultants.

¶ 6 McQueen conspired with the Quest investigators “to limit Tonigan's role in and knowledge of” what was actually going on. Both before and after a grand jury was convened, McQueen and the Quest investigators “manufacture[d] and fabricate[d] evidence for the purpose of removing Bianchi from office by charging and prosecuting Bianchi and [the other plaintiffs] with criminal offenses, despite the lack of probable cause or credible evidence.” The manufactured and fabricated evidence was largely in the form of false witness statements. Scigalski, Reilly, and Stilling “falsely reported” that four assistant State's Attorneys (ASAs) provided them with specific statements regarding campaign activities taking place in the State's Attorney's office during Bianchi's tenure. Scigalski also “materially changed” a witness's email that originally contained exculpatory material to “exclude the exculpatory information and [he] added manufactured inculpatory information regarding Bianchi.” McQueen and Jerger learned that documents had been deleted from a computer in the State's Attorney's office due to a computer virus. However, McQueen and Jerger “deliberately concealed that exculpatory evidence from Tonigan and instead manufactured evidence in order to convince Tonigan to charge Bianchi and Synek.” Synek was Bianchi's executive administrative assistant “at all times relevant.” Defendants then presented the false evidence that they manufactured to the grand jury and to Tonigan, who had been “dupe[d] into bringing charges against” plaintiffs that defendants knew plaintiffs “did not commit and were not supported by probable cause.”

¶ 7 The grand jury was convened, and in September 2010 Bianchi and Synek were indicted and arrested on multiple counts of official misconduct and obstruction of justice. The indictments alleged, inter alia, that Bianchi and Synek deleted certain computer files after receiving a grand jury subpoena to produce certain documents.

¶ 8 The indictment against Bianchi failed to allege that Bianchi committed an actual underlying crime. Therefore, McQueen and Stilling interviewed McHenry County administrator Peter Austin on October 21, 2010. Stilling and McQueen learned from Austin that McHenry County's personnel policies allowed Bianchi to use county property for personal use. However, Stilling and McQueen conspired to withhold this exculpatory evidence and, instead, fabricated Austin's witness statement, which Tonigan then relied on in deciding to present a superseding indictment to the grand jury. The grand jury returned a superseding indictment on October 22, 2010, alleging that Bianchi and Synek committed “theft of labor, services, and use of property” of McHenry County.

¶ 9 On March 23, 2011, after a two-day bench trial, Judge Joseph G. McGraw acquitted Bianchi and Synek of all charges.

¶ 10 After obtaining the indictments of Bianchi and Synek, McQueen and Scigalski began a second investigation, of Bianchi, Salgado, and McCleary, which involved the handling of criminal cases. This investigation was not authorized by any order at the time. So, on October 1, 2010, McQueen filed a verified petition seeking authority to expand the investigation that he had already begun. In the petition, McQueen made false statements regarding Bianchi's allegedly improper intervention in three criminal cases, including that Bianchi: (1) “directed an ASA to reduce a plea offer to [Salgado's] nephew from five to four years”; (2) “asked an ASA to secure a recognizance bond for one of his relatives, a felony defendant, and instructed the ASA to delay the case so his relative could benefit from a diversion program which was not yet operational”; and (3) “interceded in the case of a defendant who was related to a financial supporter of Bianchi['s].” In addition, McQueen falsely represented himself as a “Special State's Attorney.” On October 1, 2010, Judge Graham signed an order granting Tonigan and McQueen the authority to investigate and prosecute individuals for using their official positions in the State's Attorney's office to give benefits in criminal prosecutions to friends, relatives, and supporters.

¶ 11 As the second investigation continued, McQueen and the Quest investigators interviewed witnesses, fabricated witness statements, and concealed exculpatory evidence “for the purpose of charging and prosecuting Bianchi and Salgado with criminal offenses, despite the lack of probable cause or competent evidence to support charges.” Defendants “manufactured and fabricated false inculpatory evidence against Bianchi and Salgado in their reports,” for example: (1) Scigalski falsely reported that an ASA told him that, in the case against one of Bianchi's financial supporters, Bianchi directed the ASA to “present the victim * * * with various alternatives to prosecution,” such as accepting an “apology and agreement” that the financial supporter “would undergo counseling”; and (2) Scigalski falsely reported that an ASA told him that, in the case against Salgado's nephew, Bianchi told the ASA that his sentence was to be four rather than five years and then, after sentencing, Bianchi celebrated with the nephew's family at the back of the courtroom. As a direct result of, and in reliance upon, the manufactured evidence and the concealment of the exculpatory evidence,...