Jackson v. Hehner
| Decision Date | 30 September 2021 |
| Docket Number | 1-19-2411 |
| Parties | George JACKSON, Plaintiff-Appellant, v. Walter Philip HEHNER, Individually and as an Assistant Cook County State's Attorney; April Michelle Perry, Individually and as an Assistant Cook County) State's Attorney; Kimberly Foxx, Individually and as the Cook County State's Attorney; Jennifer "Jennie" Coleman, Individually and as an Assistant Cook County State's Attorney; Stephanie Miller; Individually and as an Assistant Cook County State's Attorney; Yolanda Lippert, Individually and as an Assistant Cook County State's Attorney; and Unknown Doe Supervisors 1 Through 3, Individually and as Cook County State's Attorney Employees, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
George Jackson III, of Chicago, appellant pro se.
Kimberly M. Foxx, State's Attorney, of Chicago (Cathy McNeil Stein and Joseph A. Hodal, Assistant State's Attorneys, of counsel), for appellees.
¶ 1 Plaintiff George Jackson appeals the trial court's grant of defendants’ motion to dismiss plaintiff's third amended complaint. The trial court dismissed his suit pursuant to section 2-619 of the Code of Civil Procedure ( 735 ILCS 5/2-619 (West 2020) ), based on defendants’ immunity to suit.
¶ 2 For the following reasons, we affirm.
¶ 3 BACKGROUND
¶ 5 Since a section 2-619 motion admits the legal sufficiency of the complaint, we describe below the complaint's allegations regarding the parties and events giving rising to the suit. See, e.g. , DeLuna v. Burciaga , 223 Ill. 2d 49, 59, 306 Ill.Dec. 136, 857 N.E.2d 229 (2006).
¶ 6 The complaint alleges that plaintiff George Jackson is an attorney in Cook County who represented Anthony Jackson1 in Anthony's successful posttrial motion to reverse his criminal conviction and obtain a new trial. The complaint further alleges that, in retaliation for plaintiff's success in uncovering misconduct by Cook County prosecutors and thereby obtaining a new trial,2 the prosecutors made a formal complaint against plaintiff to the Illinois Attorney Registration and Disciplinary Commission (ARDC).
¶ 7 Defendant Kim Foxx is the Cook County State's Attorney. The complaint alleges that the remaining defendants named in this suit are prosecutors in her office.
¶ 9 The complaint alleges: "This case is about rogue Prosecutors in the Office of the Cook County State's Attorney." Plaintiff alleges (1) that, in the criminal case against Anthony, prosecutors suppressed exculpatory evidence, (2) that plaintiff uncovered the suppression, (3) that the prosecutors’ "scheme" then expanded to discrediting plaintiff, and (4) that they reported him to the ARDC in 2016. Plaintiff alleges that defendants "collectively" engaged in "a scheme to defraud": by retaliating and relentlessly pressuring plaintiff, by attempting to conceal and by concealing the illegal suppression of exculpatory evidence, and by causing alterations to a certified transcript.
¶ 10 Plaintiff alleges that he both represented Anthony and testified at a hearing on Anthony's motion for a new trial on November 9, 2016. As a result of this hearing, the trial court reversed Anthony's conviction and granted him a new trial. Plaintiff alleges that evidence at the hearing established that defendants "caused material alterations to a certified transcript in the under[lying] trial." The complaint also alleges other misconduct by prosecutors during Anthony's criminal trial.
¶ 11 Defendants reported plaintiff to the ARDC, accusing him of moral turpitude and of engaging in conduct involving dishonesty and fraud. Plaintiff alleges that the purpose of these reports was to cause plaintiff such emotional distress that he would either withdraw from his representation of Anthony or render ineffective representation.
¶ 12 Specifically, plaintiff alleges that defendants filed a letter with the ARDC on December 12, 2016, enclosing the transcript from the November 9, 2016, hearing in Anthony's case. The ARDC received the letter on December 12, 2016, and opened an investigation.
¶ 13 Plaintiff alleges: "Although the [ARDC] ultimately did not take action against Plaintiff, the Agency maintains the case for three years and has the authority to revive the case within that time." Plaintiff alleges: "For three years Plaintiff must suffer emotional stress and distress knowing the Defendants could seek to revive the investigation ***."
¶ 14 Counts I through III and counts VI through VIII allege intentional infliction of emotional distress, while counts IX and X allege negligent infliction of emotional distress. Counts IV and V are solely against Kimberly Foxx, the Cook County State's Attorney, and allege negligent supervision and negligent entrustment.
¶ 16 On August 12, 2019, defendants moved to dismiss the complaint pursuant to section 2-619,3 which, as explained more fully below, argues for dismissal on grounds outside of the complaint itself. Infra ¶ 25.
¶ 17 Defendants argue (1) that Illinois Supreme Court Rule 775 (eff. Dec. 7, 2011) shielded defendants from liability for the filing of an ARDC complaint; (2) that plaintiff lacked standing to bring suit for alleged misconduct by prosecutors in a criminal case against plaintiff's client; and (3) that, even if plaintiff had standing, defendants are immune from plaintiff's claims of prosecutorial misconduct.
¶ 18 On August 13, 2019, the trial court entered a briefing order, with plaintiff's response due September 10, defendants’ reply due September 24, and the case set for status on September 25.
¶ 19 On September 25, 2019, plaintiff requested additional time to respond, and the trial court entered a revised briefing order, with plaintiff's response due October 2, defendants’ reply due October 9, and the case set for status on October 11, 2019. On October 3, 2019, plaintiff filed a response.
¶ 20 On October 8, 2019, which was five days after plaintiff's filing of a response, plaintiff filed a written motion seeking leave to amend his response instanter , which the trial court granted. Plaintiff's written motion included a sentence asserting that Illinois Supreme Court Rule 775 was unconstitutional. The following sentence stated: "However, Plaintiff continues to research this issue in order to properly develop this argument and will submit these legal contentions in a separate Motion, as warranted."
¶ 21 On October 8, 2019, the trial court denied as untimely plaintiff's oral motion for leave to challenge the constitutionality of Illinois Supreme Court Rule 775. On October 18, 2019, plaintiff filed a motion to reconsider, arguing that he was not dilatory on the ground that he "has been under unabated prosecutorial and judicial attack."
¶ 22 On October 24, 2019, the trial court entered an eight-page written order dismissing plaintiff's suit pursuant to section 2-619. The trial court found that plaintiff's claims were based, in part, on an ARDC complaint filed against him and, in part, on alleged prosecutorial misconduct that occurred during a client's case. The trial court found (1) that, to the extent that his claims were based on an ARDC complaint, Rule 775 afforded absolute immunity from suit for statements in an ARDC complaint and (2) that, to the extent that his claims were based on alleged prosecutorial misconduct, "the absolute attorney litigation privilege" barred suit. Jackson v. Hehner , No. 18 L 13303, slip op. at 5-6 (Cir. Ct. Cook County). On November 22, 2019, plaintiff filed a notice of appeal, and this timely appeal followed.
¶ 25 As noted, the trial court dismissed plaintiff's third amended complaint pursuant to section 2-619. "A motion to dismiss, pursuant to section 2-619 of the Code, admits the legal sufficiency of the plaintiffs’ complaint, but asserts an affirmative defense or other matter that avoids or defeats the plaintiffs’ claim." DeLuna , 223 Ill. 2d at 59, 306 Ill.Dec. 136, 857 N.E.2d 229 ; Solaia Technology, LLC v. Specialty Publishing Co. , 221 Ill. 2d 558, 579, 304 Ill.Dec. 369, 852 N.E.2d 825 (2006). "[T]he movant is essentially saying ‘ "Yes, the complaint was legally sufficient, but an affirmative matter exists that defeats the claim." ’ " Reynolds v. Jimmy John's Enterprises, LLC , 2013 IL App (4th) 120139, ¶ 31, 370 Ill.Dec. 628, 988 N.E.2d 984 (quoting Winters v. Wangler , 386 Ill. App. 3d 788, 792, 325 Ill.Dec. 729, 898 N.E.2d 776 (2008) ). Dismissal is permitted based on certain listed "defects" ( 735 ILCS 5/2-619(a)(1)-(8) (West 2020)) or some "other affirmative matter" ( 735 ILCS 5/2-619(a)(9) (West 2020)) outside the complaint. Reynolds , 2013 IL App (4th) 120139, ¶ 31, 370 Ill.Dec. 628, 988 N.E.2d 984.
¶ 26 On an appeal from a section 2-619 dismissal, our standard of review is de novo. Hernandez v. Lifeline Ambulance, LLC , 2020 IL 124610, ¶ 14, 450 Ill.Dec. 131, 181 N.E.3d 131 ; Solaia Technology , 221 Ill. 2d at 579, 304 Ill.Dec. 369, 852 N.E.2d 825. De novo review means that we perform the same analysis a trial court would perform. Khan v. BDO Seidman, LLP , 408 Ill. App. 3d 564, 578, 350 Ill.Dec. 63, 948 N.E.2d 132 (2011). "Under the de novo standard of review, this court owes no deference to the trial court." People v. Williams , 2013 IL App (1st) 111116, ¶ 75, 377 Ill.Dec. 636, 2 N.E.3d 552 (citing Townsend v. Sears, Roebuck & Co. , 227 Ill. 2d 147, 154, 316 Ill.Dec. 505, 879 N.E.2d 893 (2007) ).
¶ 27 In ruling on a section 2-619 motion to dismiss, a court must interpret the pleadings and supporting materials in the light most favorable to the nonmoving party. Van Meter v. Darien Park District , 207 Ill. 2d 359, 367-68, 278 Ill.Dec. 555, 799 N.E.2d 273 (2003). "[A] court must accept as true all well-pled facts in the plaintiff's complaint and any reasonable inferences that arise from those facts." He...
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