Reichert v. Board of Fire and Police Com'Rs

• Decision Date: 12 March 2009
• Docket Number: No. 5-07-0570.,5-07-0570.
• Citation: 905 N.E.2d 861,329 Ill.Dec. 23,388 Ill. App.3d 834
• Parties: Michael REICHERT, Plaintiff-Appellant, v. The BOARD OF FIRE AND POLICE COMMISSIONERS OF the CITY OF COLLINSVILLE, Illinois; Harry Lang, Bob Cuiferi, and Pete Palumbo, Commissioners; Scott Williams, Chief of Police; and The City of Collinsville, Illinois, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

905 N.E.2d 861

388 Ill. App.3d 834

329 Ill.Dec. 23

Michael REICHERT, Plaintiff-Appellant, v. The BOARD OF FIRE AND POLICE COMMISSIONERS OF the CITY OF COLLINSVILLE, Illinois; Harry Lang, Bob Cuiferi, and Pete Palumbo, Commissioners; Scott Williams, Chief of Police; and The City of Collinsville, Illinois, Defendants-Appellees.

No. 5-07-0570.

Appellate Court of Illinois, Fifth District.

March 12, 2009.

Mark Levy, Mark Levy, P.C., Collinsville, for Appellant.

John L. Bitzer, Dunham, Boman & Leskera, Collinsville, for The Board of Fire and Police Commissioners of the City of Collinsville, Illinois, Harry Lang, Bob Cuiferi, and Pete Palumbo, Commissioners.

Steven C. Giacoletto, Giacoletto Law Office, P.C., Collinsville, for Scott Williams, Chief of Police.

Thomas F. Hennessy III, Greensfelder, Hemker & Gale, Swansea, for The City of Collinsville, Illinois.

Presiding Justice WEXSTTEN delivered the opinion of the court:

In April 2006, the plaintiff, Michael Reichert, was discharged from the Collinsville police department by the Board of Fire and Police Commissioners of the City of Collinsville (the Board). Thereafter, he sought judicial review of the Board's decision in the circuit court of Madison County, and in response, the defendants—the Board, the City of Collinsville, and Chief of Police Scott Williams—moved for a summary judgment. Following a hearing, the circuit court entered an order affirming the Board's decision and granting a summary judgment in favor of the defendants. The plaintiff now appeals the circuit court's order, which we reverse for the following reasons.

BACKGROUND

In August 2005, in the United States District Court for the Southern District of Illinois (the district court), the plaintiff pled guilty to a charge of "Selling of Goods in Commerce at Unreasonably Low Prices Eliminating Competition," a federal misdemeanor punishable by a period of imprisonment of "not more than one year" (15 U.S.C. § 13 a (2000)). In exchange for his guilty plea, the plaintiff was sentenced to a two-year term of probation and fined $2,000. The stipulated facts underlying the plaintiff's plea established the following. From January 2004 through September 2004, the plaintiff sold "unlicensed or `knockoff' sunglasses that were manufactured, distributed[,] and sold to look like Oakley sunglasses." While the cost of a genuine pair of Oakley sunglasses ranges from "approximately $100 to $300 depending on the model," the plaintiff sold the "imitation Oakley sunglasses" for $10 a pair knowing that they "were being sold at unreasonably low prices when compared with actual name[-]brand Oakley sunglasses" and knowing that "by distributing them in the Southern District of Illinois, he would be damaging the competition for the actual name[-]brand sunglasses in the area."

In November 2005, the district court entered a published memorandum and order (the Zambrana order), in which the court opined, inter alia, that evidence of the plaintiff's federal conviction would be admissible for impeachment purposes pursuant to Rules 608(b) and 609(a)(2) of the Federal Rules of Evidence (Fed.R.Evid. 608(b), 609(a)(2)). United States v. Zambrana, 402 F.Supp.2d 953, 958-59 (2005). Emphasizing that the stipulated facts underlying the plaintiff's conviction stated that the plaintiff had sold sunglasses that were "`sold to look like Oakley sunglasses'" (emphasis in original), the district court reasoned that the plaintiff had "pled guilty to unlawfully selling goods which were represented to be something they were not" and had thereby admittedly "engaged in misrepresentation, deceit, and falsification." Zambrana, 402 F.Supp.2d at 958-59. The district court therefore concluded that the plaintiff's conviction involved specific instances of conduct that would be admissible under Rule 608(b) and that the conviction further constituted an offense involving dishonesty or false statement under Rule 609(a)(2). Zambrana, 402 F.Supp.2d at 958-59.

In February 2006, Collinsville Chief of Police Scott Williams filed charges against the plaintiff pursuant to section 10-2.1-17 of the Illinois Municipal Code (65 ILCS 5/10-2. 1-17 (West 2006)). The charges alleged that, in light of the plaintiff's federal conviction and the district court's determination that evidence of the conviction could be used to impeach his credibility, the State's Attorneys of Madison and St. Clair Counties "will view unfavorably [the plaintiff's] involvement in a criminal case as a material witness and will be less inclined, as a result, to authorize the prosecution of said case." In March 2006, the Board held a hearing on the charges, at which the following evidence was adduced.

Robert Haida testified that, since 1991, he has been the St. Clair County State's Attorney. As the county's chief prosecutor, Haida determines "whether or not allegations of state criminal offenses will be prosecuted in St. Clair County." Haida testified that he was aware that the plaintiff had pled guilty to an offense in federal court and that he was familiar with the district court's Zambrana order. Haida testified that in light of the plaintiff's conviction and the Zambrana order, his office would not charge or prosecute a case in which the plaintiff would be a material witness because of the "potential credibility issues." Haida explained that he is obligated to disclose "any and all relevant credibility issues" that a witness might have and that the judges in St. Clair County "have consistently allowed this kind of material to be used by defense attorneys."

When cross-examined, Haida testified that he had not read the statutory provision under which the plaintiff had been convicted and was not familiar with the elements of the plaintiff's offense. Haida indicated that his opinion that evidence of the plaintiff's conviction could be used for impeachment purposes was based on the Zambrana order and on past rulings made by St. Clair County judges when addressing similar situations. Haida indicated that his office would be unable to use the plaintiff as a witness because he believed that the plaintiff's conviction would be admissible for impeachment purposes. Haida acknowledged that other than the plaintiff's conviction, he was not aware of any other information that could be used to impeach the plaintiff. Haida further acknowledged that whether the plaintiff's conviction would be admissible for impeachment purposes would be determined by the judge in a particular case, but he explained that he was not willing to present the issue before a judge for the purpose of determining how the judge might rule on it.

Susan Jensen testified that she has been an assistant State's Attorney in Madison County for approximately 25 years. Jensen stated that in addition to prosecuting felony offenses, she is "responsible for meeting with the police and deciding whether cases are filed or charged as felonies." She testified that she was aware that the plaintiff had pled guilty to an offense in federal court and that she was further aware of the Zambrana order. She testified that in light of the plaintiff's conviction and the Zambrana order, she would not file charges in a case in which the plaintiff was the sole witness to an alleged offense. She further stated that if charges were filed in a case in which the plaintiff was not the sole witness to an alleged offense, she "would try to avoid having him testify." She explained that her views on the matter were representative of the policy of the Madison County State's Attorney's office. Jensen testified that part of the City of Collinsville is located in Madison County and part of it is located in St. Clair County.

When cross-examined, Jensen acknowledged that she was unfamiliar with the name or elements of the offense to which the plaintiff had pled guilty. She nevertheless believed that the offense was an impeachable offense under Illinois law. Jensen indicated that her belief that the offense was an impeachable offense was based on the Zambrana order. Jensen indicated that she did not personally know the plaintiff, and she acknowledged that other than the plaintiff's conviction, she was not aware of any other way in which the plaintiff could be impeached. She further acknowledged that whether the plaintiff's conviction would be admissible for impeachment purposes in Madison County would ultimately be determined by a judge and that her office had not attempted to have a judge determine whether the plaintiff's conviction would in fact be admissible. Jensen indicated that her office generally discloses a witness's entire criminal history and that the exclusion of material inappropriate for impeachment purposes is then sought by motion in limine.

Scott Williams testified that he had recently been appointed chief of the Collinsville police department and that the plaintiff had been a patrol officer for the City of Collinsville since early 2000. Williams testified that in light of the opinions expressed by Haida and Jensen, he did not believe that the plaintiff could effectively function as a Collinsville police officer. He indicated that all Collinsville police officers are expected to make arrests and that an officer who would not be called to testify in court would be of no use to the department.

When cross-examined, Williams stated that his predecessor had suspended the plaintiff and that he had unsuccessfully tried to rescind the suspension when he became chief. He testified that the only issue that he had with the plaintiff was that the State's Attorneys of Madison and St. Clair Counties were not willing to prosecute cases in which he would be a material witness. When asked if he would have liked to have seen the State's Attorneys present a "test case" to determine whether evidence of the plaintiff's conviction could be used for impeachment purposes, Williams stated, "I would have liked to have seen [the plaintiff] come back to work." He testified that ...