Sherwood v. City of Aurora ( 2009 )

No. 2--08--0300 Filed: 2-25-09
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
JEFF SHERWOOD, ) Appeal from the Circuit Court
) of Kane County.
Plaintiff-Appellant, )
)
v. ) No. 06--MR--474
)
THE CITY OF AURORA, )
)
Defendant-Appellee ) Honorable
) Michael J. Colwell,
(Michael Leon, Plaintiff). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the opinion of the court:
On October 30, 2006, the plaintiff, Jeff Sherwood, an Aurora police officer, filed a complaint
seeking a declaratory judgment that the investigation conducted by the defendant, the City of Aurora,
into his alleged misconduct violated the requirements of the Uniform Peace Officers' Disciplinary
Act (the Act) (50 ILCS 725/1 et seq. (West 2006)). The parties filed cross-motions for summary
judgment. On March 13, 2008, the trial court granted the defendant's motion and denied the
plaintiff's motion. The plaintiff appeals from that order. We affirm.
On July 20, 2006, Aurora Chief of Police William Powell received a phone call from the
Danville chief of police. The Danville police chief advised Chief Powell that in the early morning
hours on July 18, 2006, the plaintiff had been intoxicated, involved in a fight with other individuals
at a motel, and extremely uncooperative with the Danville police officers who were called to
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investigate the incident. The Danville police chief faxed to Chief Powell a copy of Danville police
department incident report No. 06--8729. The report contained further details of the incident at the
motel.
Specifically, the report indicated that certain Danville police officers responded to a battery
call at a local motel. When they arrived, the plaintiff indicated that he had been battered by five
other males in a motel room. Four of the subjects were known and one was unknown. All of the
other subjects involved in the altercation indicated that the plaintiff was in the room drinking and
began causing problems. One subject requested that the plaintiff leave the room but the plaintiff
refused. The plaintiff then pushed the subject, the subject pushed him back, and the plaintiff then
punched the subject in the nose. The subject told the officers that, when he began attempting to push
the plaintiff out of the room, he could have hit the plaintiff in the face in the process. The report
indicated that the plaintiff had swelling around his right eye and a small laceration above the eye.
Another subject indicated that, as he was attempting to restrain the plaintiff, the plaintiff hit him in
the back of the head. A third subject indicated that his knee had been injured as he was trying to
break up the fight. The report also indicated that the plaintiff was very uncooperative with the
Danville police officers when they arrived. The plaintiff appeared to be very intoxicated and had to
be asked several times to provide his identification before he finally complied.
Based on the information provided, Chief Powell initiated an internal investigation of the
plaintiff. Lieutenant Paul B. Nelson was assigned to perform the investigation. As part of the
Aurora police department's internal investigation procedures, Lt. Nelson completed a "Performance
Complaint Form," dated July 25, 2006. On that form, Lt. Nelson was listed as the complainant. The
form also included a "Synopsis of Incident," which was completed by Lt. Nelson. Lt. Nelson
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essentially summarized the information contained in the Danville police report. The form also
included an attestation, signed by Lt. Nelson and notarized, indicating:
"I understand that this statement of complaint will be submitted to the Aurora Police
Department, Office of Professional Standards, and will serve as a basis for an internal
investigation. I declare and affirm that the facts contained herein are complete, accurate, and
true to the best of my knowledge and belief. Furthermore, I agree to fully cooperate with any
investigation and agree to appear at any civil or criminal proceeding if necessary. I also
understand that any intentional false statements herein attested to by me, may be cause for
criminal and/or civil proceedings against me."
On October 2, 2006, Lt. Nelson sent the plaintiff a notification of formal interrogation. The
notification indicated the nature of the investigation, the date and time that the plaintiff was required
to be present for an interrogation, and the plaintiff's rights regarding the interrogation. On October
7, 2006, Lt. Nelson conducted a formal interrogation of the plaintiff. On October 13, 2006, Lt.
Nelson submitted his final report. In that report, Lt. Nelson concluded that the plaintiff violated
Aurora police department General Orders 4.3.1(A), requiring obedience to laws, and 4.3.2(C),
governing conduct and behavior. Ultimately, on December 15, 2006, the plaintiff was suspended
for three days without pay.
On October 30, 2006, the plaintiff filed a complaint for declaratory judgment. In his
complaint, the plaintiff noted that section 3.8(b) of the Act (50 ILCS 725/3.8(b) (West 2006)) stated
that "[a]nyone filing a complaint against a sworn peace officer must have the complaint supported
by a sworn affidavit." The plaintiff alleged that on October 2, 2006, he was notified, pursuant to the
Act, that an investigation was being conducted based upon a complaint by Lt. Nelson. The plaintiff
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argued that, although Lt. Nelson filed an affidavit in support of his complaint, the affidavit was
insufficient because Lt. Nelson had no personal knowledge of the allegations contained in the
complaint. The plaintiff requested that the court make "binding declarations of rights concerning
the construction of 50 ILCS 725/3.8(b) [(West 2006)] to require the City of Aurora and its agent to
investigate and discipline peace officers in accordance with [the Act]."
On October 12, 2007, the defendant filed a motion for summary judgment. In that motion,
the defendant argued that the Act was designed to provide a series of procedural protections to police
officers when they were being investigated for alleged misconduct and that it was not a limitation
on a police department's ability to investigate officer misconduct. The defendant argued that section
3.8(b) of the Act did not indicate that a formal investigation of police officer misconduct can
commence only upon the filing of a sworn complaint by a person with firsthand knowledge of the
alleged officer misconduct. The defendant argued that, because there was no requirement in the Act
that an internal investigation can be initiated only when there has been a sworn complaint filed
against an officer, it was irrelevant whether Lt. Nelson's complaint form complied with section
3.8(b). The defendant further argued that section 3.8(b) was intended to apply to a third party such
that, if that party wished to file a complaint against a police officer, he or she had to do so under the
penalty of perjury. Alternatively, the defendant argued that, even if the Act could be interpreted as
requiring a sworn complaint under section 3.8(b) as a condition precedent to an internal
investigation, Lt. Nelson's complaint complied with section 3.8(b) because the matters he set forth
were based on his own knowledge gleaned from the Danville police report.
On October 15, 2007, the plaintiff filed a cross-motion for summary judgment. In that
motion, the plaintiff argued that Lt. Nelson's sworn complaint did not comply with section 3.8(b) of
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the Act. The plaintiff argued that an affidavit must be based upon the personal knowledge of the
affiant such that the affiant could competently testify at trial to the contents of the affidavit. The
plaintiff argued that Lt. Nelson's affidavit was invalid because it was based on the Danville police
report, and he therefore had no personal knowledge of the allegations contained in the complaint.
The plaintiff argued that without personal knowledge, Lt. Nelson could not competently testify at
trial to the contents of the affidavit. Accordingly, the plaintiff argued that he was entitled to
summary judgment on his complaint.
On February 26, 2008, the trial court issued a written letter opinion. The trial court found
that the Act did not contain any language that explicitly required a complaint in order to initiate an
investigation of an officer. Additionally, the trial court found:
"It is apparent that the investigation of Officer Sherwood's misconduct could have properly
been triggered by the phone call from the Chief of Police in Danville alone. No formal
complaint was required to begin an informal inquiry into his conduct. Even if, for argument's
sake, the Complaint were deficient for the reasons stated by the plaintiff, such deficiencies
would not be fatal. Taking the Complaint out of the equation, the City of Aurora had
information of officer misconduct which was provided to them by the Chief of Police in
Danville. There is nothing in the statute that prevents the City from conducting an
investigation based solely on this information."
Accordingly, on March 13, 2008, the trial court entered an order denying the plaintiff's motion for
summary judgment and granting the defendant's motion for summary judgment. Thereafter, the
plaintiff filed a timely notice of appeal.
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On appeal, the plaintiff argues that, pursuant to the Act, an investigating agency must have
a valid affidavit in support of a complaint prior to interrogating an officer as part of a formal
investigation into alleged officer misconduct. The plaintiff argues that the affidavit in support of the
complaint filed by Lt. Nelson was not valid because Lt. Nelson did not have firsthand knowledge
of the misconduct alleged in the complaint. The plaintiff argues that the Danville police officers
involved in his alleged misconduct should have been required to execute sworn affidavits before he
was subjected to a formal interrogation. In response, the defendant argues that the Act does not
require a sworn complaint to be filed prior to a formal interrogation of a police officer.
Alternatively, the defendant argues that, even if the Act did require a sworn complaint, Lt. Nelson's
complaint satisfied the statute.
To determine whether the Act requires a sworn complaint by someone with firsthand
knowledge of the alleged misconduct before an officer can be subjected to an interrogation, we begin
with the language of the Act. The fundamental rule of statutory construction is to ascertain and give
effect to the intent of the legislature. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). To determine
the legislature's intent, a court first looks to the statute's language, which is to be given its plain and
ordinary meaning. Harrisonville Telephone Co. v. Illinois Commerce Comm'n, 212 Ill. 2d 237, 247
(2004). When the language of the statute is clear, it must be applied as written without resort to aids
or tools of interpretation. DeLuna, 223 Ill. 2d at 59. Where a statute is capable of more than one
reasonable interpretation, the statute will be deemed ambiguous. General Motors Corp. v. State of
Illinois Motor Vehicle Review Board, 224 Ill. 2d 1, 13 (2007). In that event, the court may consider
extrinsic aids to construction, such as legislative history. Millineum Maintenance Management, Inc.
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v. County of Lake, 384 Ill. App. 3d 638, 648 (2008). The construction of a statute is a question of
law, which we review de novo. DeLuna, 223 Ill. 2d at 59.
The relevant portions of the Act are as follows:
"§ 2. For the purposes of this Act, unless clearly required otherwise, the terms
defined in this Section have the meaning ascribed herein:
***
(c) 'Formal investigation' means the process of investigation ordered by a
commanding officer during which the questioning of an officer is intended to gather evidence
of misconduct which may be the basis for filing charges seeking his or her removal,
discharge or suspension in excess of 3 days.
(d) 'Interrogation' means the questioning of an officer pursuant to the formal
investigation procedures of the respective State agency or local governmental unit in
connection with an alleged violation of such agency's or unit's rules which may be the basis
for filing charges seeking his or her suspension, removal, or discharge.
***
§ 3.8. Admissions; counsel; verified complaint.
(a) No officer shall be interrogated without first being advised in writing that
admissions made in the course of the interrogation may be used as evidence of misconduct
or as the basis for charges seeking suspension, removal, or discharge; and without first being
advised in writing that he or she has the right to counsel of his or her choosing who may be
present to advise him or her at any stage of the interrogation.
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(b) Anyone filing a complaint against a sworn peace officer must have the complaint
supported by a sworn affidavit." 50 ILCS 725/2(c), (d), 3.8(a), (b) (West 2006).
The Act "requires that, if officers are to be disciplined, certain procedures must be followed."
Cain v. Larson, 879 F.2d 1424, 1427 (7th Cir. 1989). Pursuant to the Act, when a police department
initiates a formal investigation of an officer, any interrogation must proceed in accordance with the
Act. 50 ILCS 725/3 (West 2006). Sections 3.1 through 3.11 set forth the procedures that must be
followed during the interrogation. 50 ILCS 725/3.1 through 3.11 (West 2006). For example, the
interrogation must be conducted at a reasonable time of day (50 ILCS 725/3.3 (West 2006)); the
subject matter must be disclosed (50 ILCS 725/3.2 (West 2006)); and the officer may have an
attorney or union representative available to advise him during the interrogation (50 ILCS 725/3.9
(West 2006)). Accordingly, the Act is designed to provide a series of procedural protections to
police officers when they are interrogated as part of formal investigations into officer misconduct.
In the present case, the issue on appeal can be resolved by looking at the plain language of
the Act. The plain language of the Act indicates that "[a]nyone filing a complaint against a sworn
peace officer must have the complaint supported by a sworn affidavit." 50 ILCS 725/3.8(b) (West
2006). There are two types of affidavits, those based on personal knowledge and those based on
information and belief. E.g., Carbonara v. North Palos Fire Protection District, 192 Ill. App. 3d 275,
277 (1989) (indicating that election contest petitions and civil complaints may be verified by
affidavit based upon information and belief); cf. 210 Ill. 2d R. 191 (stating that affidavits in support
of motions for summary judgment and certain other motions must be based on personal knowledge).
The Act's "sworn affidavit" is not limited to one kind or the other, and we cannot read into a statute
any limitation that it does not express. See O'Keefe v. Illinois State Police Merit Board, 313 Ill. App.
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3d 817, 828 (2000). Thus, the plain language of the Act demonstrates that either type of affidavit
is sufficient.
Contrary to the plaintiff's argument, this construction accords with the purpose of an affidavit
in this context. In arguing that section 3.8(b) requires that the affidavit be based on personal
knowledge only, the plaintiff cites to Hoover v. Crippen, 151 Ill. App. 3d 864, 868 (1987). In
Hoover, the defendant questioned the validity of an affidavit in support of a motion for a preliminary
injunction. Hoover, 151 Ill. App. 3d at 868. In finding that the affidavit must be based on personal
knowledge such that the affiant could competently testify at trial to the contents of the affidavit, the
Hoover court relied on Mount Prospect State Bank v. Forestry Recycling Sawmill, 93 Ill. App. 3d
448, 459 (1980). Hoover, 151 Ill. App. 3d at 868. Mount Prospect specifically dealt with a Supreme
Court Rule 191 (210 Ill. 2d R. 191) affidavit in support of a motion for summary judgment. Mount
Prospect, 93 Ill. App. 3d at 459. Rule 191 requires that affidavits submitted in connection with
motions for summary judgment (735 ILCS 5/2--1005 (West 2006)), motions for involuntary
dismissal (735 ILCS 5/2--619 (West 2006)), and motions to contest jurisdiction over the person (735
ILCS 5/2--301 (West 2006)) be made on the personal knowledge of the affiants. See 210 Ill. 2d R.
191. An affidavit submitted on a motion for summary judgment must meet the same requirements
as competent testimony because it serves as a substitute for testimony at trial. Robidoux v. Oliphant,
201 Ill. 2d 324, 335 (2002). However, the present case does not involve a motion for a preliminary
injunction or any of the motions addressed by Rule 191.
An affidavit under section 3.8(b) of the Act does not serve as a substitute for testimony at
trial, as does an affidavit in the summary judgment context. Instead, the only reasonable purpose of
the affidavit requirement under section 3.8(b) is to discourage complainants from making false or
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malicious allegations against police officers. See, e.g., People v. Cuevas, 371 Ill. App. 3d 192, 199
(2007) (Gilleran Johnson, J., specially concurring) (observing that the statutory affidavit requirement
of a petition for an order of protection is intended to "thwart false or malicious allegations by the
petitioner"). Moreover, "where [a] statute requires a 'sworn complaint,' but does not prescribe the
form of verification, we assume that such a complaint should be verified by affidavit in the same
manner as complaints in civil cases may be verified, and 'the affidavit should be in such form as to
subject the party making it to a prosecution for perjury in case the matter sworn proves to be false.' "
Rutledge v. Department of Registration & Education, 77 Ill. App. 2d 103, 114 (1966), quoting
Farrell v. Heiberg, 262 Ill. 407, 410 (1914). Section 2--605 of the Code of Civil Procedure (735
ILCS 5/2--605 (West 2006)) provides that verified pleadings may be stated upon information and
belief.
The affidavit requirement of section 3.8(b) is similar to the affidavit requirement necessary
to obtain a search warrant. A complaint and supporting affidavit for the issuance of a search warrant
are not required to show beyond a reasonable doubt that the warrant should be issued; rather, they
need establish only probable cause. People v. Moser, 356 Ill. App. 3d 900, 908 (2005). "A showing
of probable cause means that the facts and circumstances within the knowledge of the affiant are
sufficient to warrant a person of reasonable caution to believe that an offense has occurred and that
evidence of it is at the place to be searched." Moser, 356 Ill. App. 3d at 908. A police officer's
complaint and affidavit made for the purpose of securing a search warrant need not be made on
personal knowledge only. People v. Bauer, 102 Ill. App. 3d 31, 35 (1981). However, the complaint
should state with sufficient definiteness the facts on which the information and belief are based so
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that, if they are false, a perjury charge may be assigned thereon. People v. Moran, 58 Ill. App. 3d
258, 259 (1978).
Accordingly, an affidavit in support of a complaint for a search warrant can be based on
information and belief if it provides probable cause to further investigate possible criminal activity
and if it subjects the complainant to a prosecution for perjury should the allegations prove to be false.
Similarly, an affidavit in support of a complaint alleging officer misconduct can be based on
information and belief as long as it provides sufficient grounds to initiate an investigation and
subjects the affiant to a prosecution for perjury should the allegations turn out to be false. In both
instances, the affidavits are not intended to substitute for testimony at trial. Rather, the intent is that
they provide sufficiently reliable grounds to investigate alleged misconduct. Consequently, we hold
that the affidavit requirement of section 3.8(b) allows either an affidavit based on personal
knowledge or an affidavit based on information and belief. Lt. Nelson's sworn affidavit in support
of his complaint, based upon information and belief gleaned from the Danville police report,
satisfied the affidavit requirement of section 3.8(b) of the Act. Accordingly, we affirm the trial
court's judgment. See Bell Leasing Brokerage, LLC v. Roger Auto Service, Inc., 372 Ill. App. 3d
461, 469 (2007) (we may affirm the trial court's judgment on any basis appearing in the record
regardless of the trial court's reasoning).
In so ruling, we note that the plaintiff's argument necessarily implies that an officer
interrogation cannot be conducted in the absence of a complaint. The defendant argues that the Act
does not require that a complaint be filed prior to the interrogation of an officer. However, we need
not reach the issue of whether, pursuant to the Act, a complaint is necessary prior to conducting an
officer interrogation. A determination of that issue would be nothing more than advisory as it is
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beyond the facts of this case. Here, a complaint was filed and it was supported by an affidavit that
we determined to be valid. Whether an interrogation would be proper absent a complaint and its
supporting affidavit is a determination for a different case.
For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.
Affirmed.
ZENOFF, P.J., and McLAREN, J., concur.
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