Taliani v. Herrmann

• Decision Date: 29 September 2011
• Docket Number: No. 3–09–0138.,3–09–0138.
• Citation: 353 Ill.Dec. 688,956 N.E.2d 550,2011 IL App (3d) 090138
• Parties: Steven A. TALIANI, Plaintiff–Appellee and Cross–Appellant,v.Patrick J. HERRMANN, as State's Attorney for Bureau County, Illinois, Defendant–Appellant and Cross–Appellee.
• Court: United States Appellate Court of Illinois

2011 IL App (3d) 090,138

956 N.E.2d 550

353 Ill.Dec. 688

Steven A. TALIANI, Plaintiff–Appellee and Cross–Appellant,

v.Patrick J. HERRMANN, as State's Attorney for Bureau County, Illinois, Defendant–Appellant and Cross–Appellee.

No. 3–09–0138.

Appellate Court of Illinois, Third District.

Aug. 19, 2011.Rehearing Denied Sept. 29, 2011.

Patrick J. Herrmann (argued), State's Attorney, for Patrick J. Herrmann, State's Attorney.Robert L. Caplan (argued), Clarendon Hills, for Steven Taliani.

OPINION

Justice SCHMIDT delivered the judgment of the court, with opinion.

¶ 1 In an action under the Illinois Freedom of Information Act (the Act) (5 ILCS 140/1 et seq. (West 2008)), the trial court ordered the defendant, Patrick J. Herrmann, in his capacity as Bureau County State's Attorney, to provide the plaintiff, Steven A. Taliani, with transcripts of grand jury proceedings from Taliani's 1994 criminal case. Taliani then petitioned for an award of attorney fees pursuant to the Act. The petition included a request for fees for time spent by Taliani's attorney to prepare and argue the fee petition (commonly called “fees on fees”). The trial court awarded Taliani attorney fees in an amount less than he requested and denied his request for fees on fees. Herrmann appeals the award of attorney fees; Taliani cross-appeals the denial of his petition for fees on fees. We reverse and vacate the order granting Taliani attorney fees.

¶ 2 FACTS

¶ 3 Taliani is currently serving a 70–year sentence for murder and a 30–year sentence for aggravated battery with a firearm, both from convictions in 1994. In June 2007, he filed a pro se complaint for declaratory and injunctive relief under the Act. In his complaint, Taliani alleged that the Bureau County circuit court clerk denied his request for “a copy of Grand Jury Transcripts from the case of People v. Taliani, Case No. 94–CF–37.” Taliani also stated that pursuant to section 10 of the Act (5 ILCS 140/10 (West 2008)), he appealed the clerk's denial to Herrmann. In response, Herrmann sent Taliani a letter which stated, in part, “ That Grand Jury Transcript was provided to your attorney prior to trial. You should contact him to receive a Grand Jury Transcript if you do not have it.”

¶ 4 Taliani then wrote a letter to his criminal trial lawyer asking for the grand jury transcripts. In a responsive pleading, Taliani stated that his criminal trial attorney failed to respond to his request for the transcripts. Subsequently, Herrmann sent Taliani a letter stating that he was denying Taliani's freedom of information request “[b]ecause the proceedings of the Grand Jury are conducted in secrecy, matters other than deliberations and the vote cannot be disclosed by the State's Attorney with only limited exceptions. The dissemination of Grand Jury proceedings is covered by 725 ILCS 5/112–6.”

¶ 5 Robert Caplan entered his appearance as Taliani's counsel in the matter; Taliani filed a two-count amended complaint. In count II, Taliani named Herrmann, in his official capacity as Bureau County State's Attorney, as the defendant. Taliani asserted that Herrmann denied his request for the grand jury transcripts and attached the letter from Herrmann.

¶ 6 Herrmann filed a motion to dismiss count II of Herrmann's complaint. Taliani filed a response to Herrmann's motion and then a motion for judgment on the pleadings. The court denied Herrmann's motion to dismiss and granted Taliani's motion for judgment on the pleadings, ordering Herrmann to provide the grand jury transcripts to Taliani.

¶ 7 Taliani submitted a petition contending that under section 11(i) of the Act (5 ILCS 140/11(i) (West 2008)), he was entitled to attorney fees. In the petition, Taliani asserted that Caplan's hourly rate was $250. Taliani attached billing sheets from Caplan indicating that Caplan had worked on the matter for 85 hours and 8 minutes, for a total bill of $19,951.50. The billing sheets deducted $2,000 for work Caplan had done on count I of the complaint, for a final total request of $17,951.50.

¶ 8 The court held a hearing on Taliani's petition for attorney fees; at the beginning of the hearing, Taliani submitted a supplemental petition for attorney fees, seeking fees on fees for the time he spent preparing and litigating his original fee petition. Attorney Randolph Gordon testified as a witness for Taliani. Gordon opined that a $250 hourly rate was reasonable given Caplan's work on the case, his experience and what other judges in the circuit have approved as an hourly rate in civil cases. Caplan testified that a $250 hourly rate was reasonable based on his responsibility in the case, his many years of experience and the hourly rates for lawyers in civil matters in several of the surrounding counties.

¶ 9 At the conclusion of the hearing, the court reduced the total hours from 85.1 to 57.86. The court also reduced Caplan's hourly rate from $250 to $162.50, finding that $162.50 was a reasonable hourly rate in the area based on its experience. The court awarded Taliani fees of $9,361.62. The court refused to award Taliani any fees on fees requested in his supplemental petition.

¶ 10 Herrmann appeals the trial court's award of attorney fees to Taliani. Taliani cross-appeals the trial court's denial of the fees on fees.

¶ 11 ANALYSIS

¶ 12 The Act requires public bodies make “available to any person for inspection or copying all public records, except as otherwise provided in Section 7 of this Act.” 5 ILCS 140/3(a) (West 2008). Public records are broadly defined under the Act. 5 ILCS 140/2(c) (West 2008). Section 7 of the Act exempts certain records from its reach, notably, “ [i]nformation specifically prohibited from disclosure by federal or State law .” 5 ILCS 140/7(1)(a) (West 2008).

¶ 13 Section 112–6 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/100–1 et seq. (West 2008)) is a state law that prohibits the disclosure of grand jury transcripts without a court order and thus exempts them from the Act. 725 ILCS 5/112–6 (West 2008). Herrmann would have violated state law had he provided Taliani the requested documents without a court order to do so. The Code indicates that grand jury proceedings are secret and only open to the “State's Attorney, his reporter and any other person authorized by the court or by law.” 725 ILCS 5/112–6(a) (West 2008); People v. Di Vincenzo, 183 Ill.2d 239, 254, 233 Ill.Dec. 273, 700 N.E.2d 981 (1998); People v. Sampson, 406 Ill.App.3d 1054, 1057, 348 Ill.Dec. 175, 943 N.E.2d 783 (2011). Taliani was only entitled to a copy of the grand jury transcripts pursuant to section 112–6(c)(3) of the Code. It states: “Disclosure otherwise prohibited by this Section of matters occurring before the Grand Jury may also be made when the court, preliminary to or in connection with a judicial proceeding, directs such in the interests of justice or when a law so directs.” 725 ILCS 5/112–6(3)(c) (West 2008).

¶ 14 Taliani was only entitled to a copy of the grand jury transcripts pursuant to the Code and the Code does not allow him to recover his fees. It was error for the trial court to award fees to Taliani in this matter.

¶ 15 Contrary to the dissent's assertions, in both this court and the trial court, Herrmann argued that it was improper to award fees because a law other than the Act controlled his ability to disclose the transcripts to Taliani. ¹ Thus, he raised an issue of law that this court reviews de novo. Corral v. Mervis Industries, Inc., 217 Ill.2d 144, 153, 298 Ill.Dec. 201, 839 N.E.2d 524 (2005). No doubt the Act's attorney fees provision is to dissuade public officials from refusing to disclose public records that the Act requires them to disclose. That is, the Act provides, in essence, that if a public official requires one to hire a lawyer and file suit to obtain that which should have been handed to him, the person who ultimately prevails in obtaining the records should be entitled to recover attorney fees. This commonsense provision promotes the purposes of the Act. On the other hand, it would be absurd to construe the statute to forbid a government body from disclosing certain records without a court order and then require it to pay the applicant's attorney fees in securing the court order.

¶ 16 We hold that, as a matter of law, the Act is not the proper vehicle for obtaining grand jury transcripts. As Herrmann originally advised Taliani, disclosure of grand jury transcripts is governed by section 112–6(c)(3). 725 ILCS 5/112–6(c)(3) (West 2008). The order of the trial court awarding fees to Taliani is reversed. Given our resolution of this issue, we need not address Taliani's cross-appeal. Our holding that Taliani is not entitled to any fees renders the fees on fees issue moot.

¶ 17 For the foregoing reasons, the judgment of the circuit court of Bureau County is reversed and vacated with regard to the granting of attorney fees.

¶ 18 Reversed and vacated in part.

¶ 19JUSTICE LYTTON, dissenting:

¶ 20 I dissent. The issue decided by the majority was never raised in the trial court or on appeal. The only issue on appeal was the attorney fees award. Thus, the order granting Taliani's Freedom of Information Act (FOIA) complaint is not at issue in this appeal. This court should be reviewing the only issue properly before it, which is the trial court's attorney fees award. I would affirm the trial court's award of attorney fees to Taliani but remand to determine the proper amount of fees, including fees on fees.

¶ 21 I

¶ 22 Illinois Supreme Court Rule 303(b)(2) provides that a notice of appeal “shall specify the judgment or part thereof or other orders appealed from and the relief sought from the reviewing court.” Ill. S.Ct. R. 303(b)(2) (eff. June 4, 2008). Pursuant to Rule 303(b)(2), when an appeal is taken from a specified judgment, the appellate court acquires no jurisdiction to review other judgments or parts of judgments not specified or inferred from the notice of...