Dennis E. v. O'Malley

• Citation: 628 N.E.2d 362,194 Ill.Dec. 865,256 Ill.App.3d 334
• Decision Date: 16 November 1993
• Docket Number: No. 1-91-2259,1-91-2259
• Parties: , 194 Ill.Dec. 865 DENNIS E., Larry H., Anthony F., Alexander G., Michael N., and John S., individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Jack O'MALLEY, Cook County State's Attorney, in his official capacity, and Aurelia M. Pucinski, Clerk of the Circuit Court of Cook County, in his official capacity, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 362

628 N.E.2d 362

256 Ill.App.3d 334, 194 Ill.Dec. 865

DENNIS E., Larry H., Anthony F., Alexander G., Michael N. and John S., individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Jack O'MALLEY, Cook County State's Attorney, in his official capacity, and Aurelia M. Pucinski, Clerk of the Circuit Court of Cook County, in his official capacity, Defendants-Appellees.

No. 1-91-2259.

Appellate Court of Illinois,

First District, Second Division.

Nov. 16, 1993.

Legal Assistance Foundation of Chicago (Ruthanne DeWolfe, Carl Flaningam, James Latturner, of Counsel), for plaintiffs-appellants.

Jack O'Malley, State's Atty. of Cook County, Chicago (Karen Covy, Deputy State's Atty., and Patricia M. Shymanski, Patricia M. Moser, Asst. State's Attys., of counsel), for defendants-appellees.

Justice SCARIANO delivered the opinion of the court:

At the time they filed the instant action, plaintiffs Dennis E., Larry H., Anthony F., Alexander G., Michael N. and John S. were in the custody of the Illinois Department of Corrections (IDOC), after having been convicted in the circuit court of Cook County of various criminal offenses. In their complaint, they allege that each year, approximately 6,600 individuals who have been placed in the custody of IDOC are from Cook County, and that of the approximately 20,000 persons currently in the Illinois corrections system, 12,000 of them entered it after being convicted in the Circuit Court of Cook County.

Their complaint focuses on defendants' purported non-compliance with the provisions of section 5-4-1(d) of the Unified Code of Corrections (Act) (Ill.Rev.Stat.1989, ch. 38, par. 1005-4-1(a)) which require the State's Attorney to prepare a statement describing the crimes committed by all defendants who are placed in the custody of IDOC. In practice, the statement is composed by the assistant State's Attorney who prosecuted the case and is sent to IDOC over the signature of the State's Attorney himself. IDOC utilizes this statement of the case along with a variety of other pertinent penological concerns, such as the prisoner's history of escape, staff recommendations, length of sentence and the prisoner's relative emotional stability, in order to assign to the newly-convicted prisoner a security classification. This initial classification determines which of IDOC's institutions will house the inmate, and it may also have some bearing on IDOC's assessment of the inmate's suitability for a particular program or work assignment. The present version of the Act reflects an amendment enacted in 1973 wherein the legislature removed from the process the trial judge, who formerly had joined with the State's Attorney in the preparation of the statement and, invited the participation of defense counsel. See Ill.Rev.Stat.1971, ch. 108, par. 203.

Plaintiffs allege that the State's Attorney has adopted and institutionalized a policy which encourages his assistants to prepare erroneous and exaggerated statements, to pepper liberally throughout the statement the assistant's personal opinion of the prisoner's general character and to offer the assistant's untrained estimate concerning the prisoner's rehabilitative potential. According to the complaint, the Cook County State's Attorney's is the only office in all of the State which has such a policy or which actively promotes such a practice.

Plaintiffs included with their complaint excerpts of the statements which were prepared after they were convicted and which they consider to violate the Act. Dennis E. objected to the closing sentence of his statement which commented: "Because of this defendant's prior background and aggravating circumstances involved in the offense, this defendant should never be considered for early release." Dennis E. maintained that by interjecting his personal opinions against him, the State's Attorney had become an adverse character witness, and despite its being requested to do so, the State's Attorney's office has refused to redact the personal opinion section of the letter. This request for redaction was made as well by all other named plaintiffs, and in each instance was similarly rejected by the State's Attorney's office.

Larry H. took issue with the following characterization of his crime: "The viciousness and cold-heartedness with which this savage killing was carried out is hard to describe with the written word." He also sought to have expunged from his record the expression of the State's Attorney's opinion that "Judge Strayhorn's seventy-five (75) to one hundred (100) year sentence is a powerful admonition to the Board as to his feelings concerning these three defendants. On behalf of the State's Attorney's Office, we concur with the severe sentence and ask the Parole Board to consider these matters before even thinking of releasing these three murderers." John S. alleged that the statement in his case presented the inaccurate impression that he physically participated in the actual murder of the victim even though the prosecutor was fully aware that he was convicted under a theory of accountability and was not present in the room in which the killing took place. The above complaints, plaintiffs allege, are typical of the overstatements, inaccuracies and interjections of personal animus toward recent convictees that plague all of the statements that flow from the office of the Cook County State's Attorney to IDOC.

With regard to the Clerk of the Circuit Court of Cook County, plaintiffs aver in their complaint that she has promulgated an office-wide policy resulting in the practice of failing and/or refusing to transmit to recently convicted individuals the statement of their case unmistakably required by section 5-4-1(d). Also allegedly in violation of the Act, she has refused to implement a policy which would ensure that new inmates receive the copy of the statement to which they are entitled within the 10-day limitation period imposed by the statute. ¹

As a direct result of the alleged malfeasance by the State's Attorney and the nonfeasance of the Clerk, plaintiffs assert that IDOC, which lacks the ability to gather background information on its new charges on its own and does not have the institutional skill to scrutinize closely the veracity of the statements it receives, is required to rely fully on the State's Attorney's rendition of the facts when assigning security classifications to the newly-arrived inmates. This initial classification, in turn, fixes an inmate's eligibility for rehabilitative programs and job assignments. The statements then become a part of the inmate's master file and, as such, are also considered by the Prisoner Review Board, which Board, plaintiffs claim, treats the statements as the official recitation of the events of the prisoner's crime. Plaintiffs allege variously that as a direct result of both defendants' non-compliance with the Act, they have been denied: access to IDOC programs; a lowered security classification; parole; and/or desirable job assignments.

As a remedy for past violations, plaintiffs seek mandamus to compel the Clerk's office to implement a new policy and practice whereby it would transmit the statements to the "other persons," meaning the new prisoners, within 10 days of receipt as required by the Act and to transmit the copies of the statements to prisoners from Cook County still in the custody of IDOC from whom they have been unlawfully withheld, dating back to those prisoners first incarcerated immediately after the statute became effective in 1973. They also seek mandamus against the State's Attorney to compel the promulgation of a policy to foster the writing of accurate and objective statements for future newly-convicted individuals; and to remedy past violations of the Act, plaintiffs would require the States' Attorney to review all of the statements written pursuant to the present Act for each prisoner from Cook County who remains in IDOC's custody, and rewrite those which are not objective or accurate. As alternate prospective remedies, plaintiffs seek a declaratory judgment of their rights under section 5-4-1(d) of the Code and a permanent injunction preventing both officials from violating the Act in the future.

In the next two counts of plaintiffs' complaint, they allege that the actions of defendants have combined to violate the Due Process and Equal Protection Clauses of the State and Federal Constitutions. Their final allegation is that the actions of the two officials constitute a violation of Article I, section 11 of the Illinois Constitution (Ill. Const.1970, art. I, § 11.), which mandates that criminal penalties be determined with the "objective of returning the offender to useful citizenship."

Defendants brought a motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-615), asserting that plaintiffs' complaint was insufficient as a matter of law to state any cause of action whatsoever. After accepting memoranda and entertaining argument on the motion, the circuit court granted defendants' motion to dismiss, and at the subsequent request of plaintiffs, did so with prejudice, from which order plaintiffs filed a timely notice of appeal.

I.

Plaintiffs' initial contention is that the trial court erred when it held, pursuant to defendants' section 2-615 motion (Ill.Rev.Stat.1989, ch. 110, par. 2-615), that their complaint was legally insufficient. It is well-settled that when reviewing the grant of a section 2-615 motion, we must accept as true all well-pleaded facts and must draw from those facts all reasonable inferences which we deem favorable to the non-moving party. (Burdinie v. Glendale Heights (1990), 139 Ill.2d 501, 504-04, 152 Ill.Dec. 121, 124, 565 N.E.2d 654, 657; Weil, Freiburg & Thomas, P.C. v. Sara Lee Corp. (1991), 218 Ill.App.3d 383, 388, 160 Ill.Dec. 773, 784, 577 N.E.2d 1344, 1355.) If, when so viewed, the...