An open letter to Brendan Kelly, State’s Attorney

An open letter to Brendan Kelly, State’s Attorney

Mr. Kelly, you know of me. We have met face-to-face and communicated over phone calls and email. I have published our dealings on my website, www.markmccoy.com. You likewise know that I have been making claims of criminal acts committed by Fairview Heights Policemen, Joshua Alemond and Aaron Nyman. We met when you were acting as Circuit Clerk, and at that time you became aware of my allegations of criminal acts committed by these officers.

Mr. Kelly, I also know that your office is in possession of video evidence of the alleged criminal acts. You possess falsified and perjured reports from these officers, as well as video from the dashboard cameras from their patrol cars. The video shows one of the officers approaching me while on my knees at gunpoint, fully compliant and passive, and then being laid on the ground then beaten and Tasered, unprovoked. The ensuing reports which fabricated charges contradict the video evidence and give rise to perjury and falsifying charges.

Yet, Mr. Kelly, men such as you and these officers invoke what you call, “the law”, and selectively assail and prosecute what is convenient. The State was determined in pursuing charges against me, all of which were dismissed. Where is the same level of commitment in prosecuting police who break the law?

Tell me, Mr. Kelly, why do you not review the evidence? Why do you not accept my complaints? Where is so-called justice? I think we both know.

Mr. Kelly, let me introduce  you to some Appellate Court opinions that you may be familiar with, and if not, should acquaint yourself with.

Appellate Court of Illinois, Third District.

The People, ex rel. James M. Mahoney, State’s Attorney,

v.

Decatur, Springfield & St. Louis Railway Company, et al.

1905.

120 Ill.App. 229, 1905 WL 1987 (Ill.App. 3 Dist.)

This is an information or bill in chancery, in the name of the People of the State of Illinois, filed by James M. Mahoney, state’s attorney of Macoupin county, praying that appellees may be perpetually enjoined from entering upon any portion of West street in Carlinville, a city incorporated under the general incorporation law of Illinois, for the purpose of constructing a railroad, and from constructing such railroad in or upon said street. Upon a hearing upon the merits, the Circuit Court entered a decree dismissing the bill for want of equity, from which the complainant appeals.

Appellees were engaged in building an electric railroad from the city of Springfield to and through the city of Carlinville, and desired to obtain the right to lay down railroad tracks in and upon West street, in said city of Carlinville.

Pursuant to the statute enumerating the powers of city councils, which provides that a city council shall have no power to grant the use of, or the right to, lay down any railroad tracks, in any street of the city, to any railroad company, except upon the petition of the owners of the land representing more than one-half of the frontage of the street, or so much thereof as is sought to be used for railroad purposes (Rev. Stat. 1903), certain persons professing to own property having a frontage of 8,200.5 feet upon said West street (the total frontage upon said street being 13,364.84 feet) on July 30, 1903, filed with the city clerk of said city a petition asking the city council to adopt an ordinance granting such right to appellees. On August 17, 1903, a number of those who had signed such original petition, and who represented 1,716 feet of frontage, filed with the city clerk an instrument in writing, which was on the same day presented and read to a meeting of the city council, by which they sought to withdraw their signatures from the original petition, and protesting that by reason of such withdrawal there remained no petition signed by more than one-half of the frontage of said street as required by law and therefore the council had no legal power to pass an ordinance granting such privilege. On August 21, 1903, an ordinance was duly passed by the city council authorizing appellees to construct, maintain and operate an electric railway on said West street.

It is first contended by appellees that the bill was properly dismissed for the reason that it appears that the proceeding is not bona fide for the purpose of protecting a public right shown to be threatened, but was in fact instituted to protect private owners of abutting property from a threatened injury to their property for which there is a complete remedy at law.

*2 In support of such contention affidavits were presented and filed upon the hearing, to the effect that the bill of information is contained in a wrapper indorsed with the names of the attorneys who are assisting the state’s attorney in the case; that the interlineations therein and indorsements thereon are in the handwriting of one of such attorneys, and further that the state’s attorney had theretofore stated that the bill was filed in his name because the property owners had been advised by their attorneys that they could not obtain an injunction in any way and that they had for that reason gotten him to file the bill in his own name.

Affidavits filed by appellant show that the information was prepared and filed conjointly by the state’s attorney and counsel for certain property owners who were, at the request of the state’s attorney, assisting him in the suit, and that the state’s attorney was impelled to act in the matter through the solicitation and importunity of different property holders upon West street and elsewhere in the city. We are unable to perceive how the actions of the state’s attorney can be impugned because he was thus moved to act, or that there was any impropriety in his accepting the assistance of private counsel, who were acting also for certain property owners. Any citizen has a right to call upon the state’s attorney to redress a public wrong. The fact that private rights may also be involved and that through the acts of the state’s attorney in the interests of the public, private wrongs, as well, may directly or indirectly be redressed, is immaterial. There was no impropriety in the action of the state’s attorney in requesting and accepting the assistance of such other counsel. Moreover it appears from the affidavit of the assistant state’s attorney, made in the absence of his chief from the State, that the information was filed by the state’s attorney of his own motion as the representative of the public; that he has not received and does not expect to receive any compensation whatever for his acts or services in the matter. In the case of People v. G. E. Ry. Co., 172 Ill. 129, cited by counsel for appellees, the court dismissed a similar proceeding to this for the reason that it clearly appeared from the evidence that the people were not in fact parties, that, on the contrary, the suit was instituted and prosecuted by the attorney-general at the sole instigation of a rival corporation by which he was employed and paid for his services. Nothing of the kind appears in the case at bar, and we, therefore, hold the contention in question to be unfounded and without merit.

It is further contended by appellees in support of the decree that the parties who signed the original petition asking the city council to grant the privileges sought by appellees could not afterward, and before the adoption of an ordinance, withdraw their signatures from such petition, and revoke such authority as said signatures thereto had given the council.

*3 In the case of Theurer v. The People, 211 Ill. 296, the sufficiency of an application for a license to keep a dramshop was involved. By an ordinance of the village of Hyde Park, it was necessary that a majority of the property owners within a certain prescribed territory should sign the application for such a license before the same could be granted by the mayor of the city of Chicago, to which the village had been annexed. The application there under consideration was, among others, signed by one Alister, who represented a certain number of feet frontage. It was presented to the mayor on May 29th. On June 22nd, and while the matter was under consideration and the signatures to the application were being verified, the mayor consented that the dram-shop might be opened, subject however, to the revocation of such provisional consent, if evidence should meanwhile be produced, sufficient under the law, in the judgment of the mayor, to invalidate the application. On July 22nd, following, Alister withdrew his name from the application, the effect of which was to leave the application unsupported by the requisite amount of frontage. Whereupon the mayor refused to grant the license. It was insisted by counsel for the applicant seeking the license, that the act of signing the application was an irrevocable act. The court held that Alister had a right to withdraw his consent at any time before the mayor had finally acted. See also, Kinsloe v. Pogue, 213 Ill. 302.

We are of opinion that the reasoning adopted and the conclusions reached by the court in the Theurer case and the cases there cited, and the rule thereby established, are applicable to the case at bar and are decisive of the question under consideration. That upon the withdrawal by property owners representing 1,716 feet of frontage, of their signatures to the application, there remained no such petition as is required by statute. Consequently the city council were without legal power or authority thereafter to adopt the ordinance in question and such ordinance was void and without legal force or effect.

Appellees further contend that inasmuch as the legislature has committed to the city of Carlinville, and other like municipalities, its sovereignty in respect to streets, highways and public grounds within its limits, the city of Carlinville is invested with the authority of the State in this respect and is the proper, if not the only party to maintain a bill in equity to restrain obstructions of streets within its limits; that it may, or may not, in its discretion, question appellees’ right of occupancy of West street; and further that the city having decided not to act, abutting owners can recover at law and have no other remedy.

In answer to this contention it is sufficient to reiterate that this proceeding is not by abutting property owners, but is, brought by the representative of the public, in their interest and behalf. In Doane v. Lake St. El. R. Co., 165 Ill. 510, it is said where the use of a street has not been legally authorized, an information in chancery by the attorney-general or state’s attorney on behalf of the People or a bill for injunction by the city, affords a proper and complete remedy. There is nothing in the authorities cited by counsel inconsistent with the view that a bill may be filed by either the city, the attorney-general or the state’s attorney, or that the state’s attorney may act regardless of whether the city may or may not think proper to do so. In the case under consideration, the city council has acted without legal authority or power. The theory that unless such city council chooses to stultify itself by authorizing proceedings to attach and defeat the result of such illegal action on its part the public is without remedy in the premises, is without support of reason or authority and clearly untenable.

*4 It is finally insisted that the abutting and other property owners upon whose motion the state’s attorney acted, have been guilty of such laches in denying the filing of the bill for five months, while the railroad company was acquiring and grading its right of way, and in failing to urge the application for an injunction for six months further while the company was completing its tracks up West street; that no such drastic relief as asked should be now allowed, but that they should be remitted to their action at law. The proceeding being in behalf of, and in the interests of the People, the doctrine of laches is not applicable.

“The attorney-general and the state’s attorney may file an information on behalf of the People where the interests of the public are involved and lapse of time constitutes no bar to such proceeding. The doctrine of estoppel does not apply to a matter in the nature of a public right, and the State is not embraced within the Statute of Limitations unless specially named, and, by analogy, does not fall within the doctrine of estoppel.” The People v. Burns, 212 Ill. 227.

The decree of the Circuit Court will be reversed and the cause remanded with directions to proceed in conformity with the views herein expressed.

Reversed and remanded.

 

Mitchell WARE, Plaintiff-Appellant,

v.

C. Bernard CAREY, Ralph Berkowitz, Kenneth Gillis and Nicholas Iavarone, Defendants-Appellees.

75 Ill.App.3d 906, 394 N.E.2d 690, 31 Ill.Dec. 488

In 1973 plaintiff, Mitchell Ware, filed a complaint against C. Bernard Carey, Ralph Berkowitz, Kenneth Gillis and Nicholas Iavarone, charging defamation. After several amendments and the dismissal of various counts, plaintiff’s third amended complaint was reduced to three counts (Counts I, III and X). Defendants filed their motion for summary judgment on all three counts and subsequently amended that motion. Plaintiff moved for summary judgment as to Counts I and III. On January 19, 1978, the circuit court of Cook County granted summary judgment for defendants on all counts. Plaintiff appeals that order. Because of the death of defendant Berkowitz, the action has abated as to him.

At the time of the alleged defamatory publications, plaintiff was the Deputy Superintendent of the Chicago Police Department. His responsibilities included supervision of the Intelligence Division, Internal Affairs Division, Inspections Division and Vice Control Division. Defendant, C. Bernard Carey, was the Cook County State’s Attorney. The remaining defendants were assistant State’s attorneys.

Count I alleges that Carey defamed plaintiff by virtue of a press release and public statement issued on September 11, 1973. It was further alleged that Carey knowingly made these false, defamatory statements. Count III alleges that Carey defamed Ware when he knowingly made false defamatory statements on a television interview show. Count X alleges that Carey and the other defendants caused the Cook County Grand Jury to issue a letter to Chicago Police Superintendent James Rochford that defamed plaintiff. Ware also alleged that defendants acted with knowledge of the falsity of the letter’s contents. The circuit court entered summary judgment for defendants on Counts I and III, finding as a matter of law that actual malice did not exist. Summary judgment for defendants on Count X was also granted because there was no genuine issue of material fact that defendants caused the drafting or publication of the letter.

Ware appeals on all counts, contending that factual issues remain necessitating remandment for trial on the merits. We affirm on all counts. Further development of the facts pertaining to each count follows in connection with the contentions of the parties.

Count I concerns Carey’s September 11, 1973, press release, which follows in its entirety:

“I have called this press conference to call public attention to what appears to me a deliberate attempt by Mayor Daley and his Police Superintendent Conlisk and Mitchell Ware to cover up police corruption and downgrade the efforts being made by this Office and U.S. Attorney James Thompson to expose and prosecute the many instances of extortion, shakedown, and corruption in the Police Department.

“Yesterday, a story appeared in one of the Chicago newspapers in which Mitchell Ware, Deputy Superintendent of Police in charge of inspectional services stated that now the cleanup of the Police Department in Chicago has been completed. According to Ware there can be no more corruption in the Police Department because if there was he would be aware of it.

“This follows the recent statement by Ware’s mentor, Mayor Daley, that there is no corruption in the Police Department. The public is corrupt, not the police.

“Shortly before the Mayor’s astounding pronouncement his Police Superintendent James Conlisk exploded to the press his confidence in the Police Department and in fact characterized prosecution of police extortionists as a smear on the top command of his Department. These public statements seem to me to be a deliberate signal to the police that official Chicago will continue to wink at corruption.

“I want to go on record that nothing is further from the truth. The era of police shakedown and extortion is ending. Such practices will no longer be tolerated.

“My office and the U.S. Attorney’s office will continue to investigate and prosecute any illegal acts to the limit of the law. It is the height of irony that the C-5 unit which Ware credits with the miracle of completing the cleanup of police corruption in Chicago should be headed by Mayor Daley’s protege, John J. Clarke, the man who is himself under indictment in the Federal Court on 8 counts of obstruction of justice and perjury. This is one more glaring example of Mayor Daley’s contempt for the intelligence of the people of Chicago and their concern for a Police Department worthy to meet the challenge of crime.

“Conlisk has publicly declared his confidence in Clarke despite the federal indictment. He can see nothing wrong in keeping a man in charge of this sensitive C-5 unit whose integrity has been challenged by the Federal Grand Jury. On the other hand, he cannot contain his indignation that at long last corruption within the Department is being brought to account before the courts.

“This City’s Police Department faces a crisis of confidence with the public. This is not a time for officials to show weakness or avert their eyes. I call upon these officials to retract these obnoxious statements and join with me to root out police corruption.

“Our office has charged or convicted 19 police officers this year, while the U.S. Attorney’s Office has 61 indictments or convictions of police officers.

“The vast majority of police are honest. They strive to be allowed to carry out their duty to protect the safety of the community. Without public respect and cooperation, their job can become  difficult and bitter. To ignore and even condone police corruption puts an extra burden on the honest cop.

“Mitchell Ware was appointed to clean up the Police Department when the public was crying out against obvious dishonesty, but now that the heat has cooled down, Daley, Conlisk and Ware think they can go back to the old routine of automatic whitewash.

“U.S. Attorney Thompson and I are determined to rid the Police Department of the extortionists and shakedown artists of whatever rank. Chicago needs and is entitled to an honest Police Department.”

Ware alleged that these statements were reported extensively by various Chicago newspapers, wire services and local radio and television stations. He contends that according to the plain meaning of the statement, Carey accused him of protecting and covering up police corruption.

After learning about this press release, Ware made a phone call to Carey. Ware alleged in his complaint that during this phone conversation “(t)he defendant Carey acknowledged and admitted the falsity of the statements complained of .”

Ware asserts that summary judgment on Count I was improper because the depositions on file established a material issue of fact as to whether Carey published his statements with actual malice (I. e., with knowledge of the falsity of his remarks or reckless disregard of whether they were false or not).   Troman v. Wood (1975), 62 Ill.2d 184, 189-190, 340 N.E.2d 292.

Carey offers four responses. First, by filing a cross-motion for summary judgment on Count I, Ware conceded that no triable fact issues remained and waiver or estoppel prohibits his arguing this issue on appeal. Second, his press release is capable of an innocent construction. Third, no triable issue as to actual malice exists. Fourth, as Cook County State’s Attorney, Carey is protected by an absolute privilege from defamation actions.

We find that Carey was protected by an absolute privilege from civil defamation and need not address the remaining issues.

II.

Carey maintains that the public statement which forms the basis for Count I is protected by the absolute executive privilege recognized in Blair v. Walker (1976), 64 Ill.2d 1, 349 N.E.2d 385. Alternatively, he claims the statement is non-actionable because of the doctrine of prosecutorial (quasi-judicial) immunity as defined in Imbler v. Pachtman (1976), 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128. We agree that Blair is controlling and need not discuss quasi-judicial immunity.

In Blair, plaintiffs were allegedly libeled by press releases made by Governor Walker. The Governor stated that plaintiffs used a corporate front and legal technicalities to obtain the home of a “helpless woman” through a foreclosure sale. He accused plaintiffs of violating real estate broker licensing laws and characterized them as “unscrupulous.” The Governor further stated that he had instructed the Department of Registration and Education to revoke plaintiffs’ real estate licenses.

The Supreme Court held that the Governor is protected from defamation actions by an absolute privilege when issuing statements legitimately related to matters committed to his responsibility. Plaintiffs contended that since the Governor had no express authority to license real estate brokers, he had acted beyond the scope of his duty. The court reasoned that the Governor did not violate the inherent, discretionary authority of his office by informing the public of actions he had directed be instituted against plaintiffs. The Governor’s duties include supervision of the Department of Registration and Education. Department officers are his subordinates. If the Governor’s statements had been communicated to Department officials, they clearly would have been absolutely privileged. The court also believed that the Governor did not exceed the bounds of his duty in communicating this message to his constituency.

Carey asks us to extend the Blair holding to afford him an absolute privilege in this case. Two issues concern us: (1) whether absolute executive immunity granted the Governor in Blair should be applied to the State’s Attorney, and (2) if so, whether Carey acted within the scope of that immunity.

We note initially that the State’s Attorney is an executive official as his office is part of the executive branch of government. ( People v. Vaughn (1977), 49 Ill.App.3d 37, 6 Ill.Dec. 932, 363 N.E.2d 879.) Blair’s grant of absolute executive immunity was held applicable to the chief executive officer of a municipality in Loniello v.   Fitzgerald (1976), 42 Ill.App.3d 900, 1 Ill.Dec. 560, 356 N.E.2d 842. Statements made by a mayor during a city council meeting were within the ambit of this privilege. The Loniello court deemed it logical that a mayor, like the Governor “should be able to carry out his daily responsibilities free from concern that his actions will result in civil damage suits.” Blair, 64 Ill.2d 1, 7, 349 N.E.2d 385, 387; see, also, Larson v. Doner (1961), 32 Ill.App.2d 471, 178 N.E.2d 399 (absolute privilege afforded mayor and city commissioners).

We are of the opinion that the policy underlying the grant of absolute immunity in Blair, Loniello and Larson is equally applicable to the instant case. Judge Learned Hand summarized the policy considerations favoring absolute immunity for government officials in Gregoire v. Biddle (2d Cir. 1939), 177 F.2d 579, 581 (Cert. denied (1950), 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363):

“It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to satisfy a jury of his good faith.”

[1][2] Carey is the chief law enforcement official for Cook County, Illinois. The State’s Attorney is a high ranking executive officer and an officer of the court charged with the administration of the law. ( People v. Dean (1923), 308 Ill. 74, 139 N.E. 37.) He has also been described as a “ quasi-judicial” officer. ( People ex rel. Schreiner v. Courtney (1942), 380 Ill. 171, 43 N.E.2d 982.) We believe that his office and the social and public interests it furthers are comparable to the chief executive officials of municipalities. Accordingly, we hold that the State’s Attorney has an absolute executive privilege from liability for defamation arising from the performance of his duties.

[3][4] It remains to be considered whether Carey’s press release under the circumstances of this case concerns matters legitimately related to matters committed to his responsibility. (Blair.) Duties of the State’s Attorney are codified in Ill.Rev.Stat.1977, ch. 14, par. 5. Among others, they include the duties:

“(1) To commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county may be concerned.

“(6) To attend before judges and prosecute charges of felony or misdemeanor, for which the offender is required to be recognized to appear before the circuit court, when in his power so to do.

“(10) To perform such other and further duties as may, from time to time, be enjoined on him by law.”

The Illinois judiciary has added the duty to keep informed as to violations of the criminal laws ( O’Hair v. People (1889), 32 Ill.App. 277) and to investigate facts and determine whether an offense has been committed ( People v. Pohl (1964), 47 Ill.App.2d 232, 197 N.E.2d 759). The State’s Attorney has the responsibility of evaluating evidence and other pertinent factors and determining what, if any, offense may be charged. ( People v. Rhodes (1967), 38 Ill.2d 389, 231 N.E.2d 400.) In short, he has wide discretion in enforcing the criminal laws. ( Marcisz v. Marcisz (1976), 65 Ill.2d 206, 2 Ill.Dec. 310, 357 N.E.2d 477.) We interpret these Particularly principles as charging the State’s Attorney with responsibilities in criminal matters prior to any formal charging that may take place.

Standards of the American Bar Association regarding prosecution are also helpful in delineating the scope of the State’s Attorney’s responsibilities.   (ABA Standards, The Prosecution Function (1971).) Sections 1.1(a), (b), and 2.7 provide:

“1.1 The function of the prosecutor.

(a) The office of prosecutor, as the chief law enforcement official of his jurisdiction, is an agency of the executive branch of government which is charged with the duty to see that the laws are faithfully executed and enforced in order to maintain the rule of law.

(b) The prosecutor is both an administrator of justice and an advocate; he must exercise sound discretion in the performance of his functions.

“2.7 Relations with the police.

(a) The prosecutor should provide legal advice to the police concerning police functions and duties in criminal matters.

(b) The prosecutor should cooperate with police in providing the services of his staff to aid in training police in the performance of their function in accordance with law.“ (Emphasis added.)

Particularly pertinent is section 3.1(a):

“A prosecutor, as the chief law enforcement official of his jurisdiction, ordinarily relies on police and other investigative agencies for investigation of alleged criminal acts, but he has an affirmative responsibility to investigate suspected illegal activity when it is not adequately dealt with by other agencies.”

Of particular interest to this case are remarks in the Introduction to these ABA standards:

“(T)he prosecutor is the leader of law enforcement in the community. He is expected to participate actively in marshaling society’s resources against the threat of crime. When a crisis in the enforcement of criminal law arises in the community, * * * he may be drawn into the maelstrom of political controversy by the demand that he ‘stamp out the criminals.’ He is called upon to make public statements, to propose legislative reforms, or to direct the energies of the law enforcement machinery of the community.” ABA Standards Relating to the Administration of Criminal Justice, Compilation, p. 77 (1974). (Emphasis added.)

ABA Standards regarding police functions also are instructive (ABA Standards, The Urban Police Function, ss 1.1, 5.1, 9.3 (1973):

“1.1 Complexity of police task.

(a) Since police, as an agency of the criminal justice system, have a major responsibility for dealing with serious crime, efforts should continually be made to improve the capacity of police to discharge this responsibility effectively. It should also be recognized, however, that police effectiveness in dealing with crime is often largely dependent upon the effectiveness of other agencies both within and outside the criminal justice system. Those in the system must work together through liaison, cooperation, and constructive joint effort. This effort is vital to the effective operation of the police and the entire criminal justice system.

“5.1 Need for accountability.

Since a principal function of police is the safeguarding of democratic processes, if police fail to conform their conduct to the requirements of law, they subvert the democratic process and frustrate the achievement of a principal police function. It is for this reason that high priority must be given for ensuring that the police are made fully accountable to their police administrator and to the public for their actions.

“9.3 The news media.

Public understanding of the police function is heavily dependent upon the coverage given by mass media to the newsworthy events in which the police are involved. Newspaper, radio, and television**696 ***494 reporters assigned to reporting on police activities should have a sufficiently thorough understanding of the complexities of the police function to enable them to cover such events (as well as other matters that now go unreported) in a manner that promotes the public’s understanding of the police role.“

[5] With these principles in mind, we turn to the circumstances of the instant case.  Carey submitted an affidavit in support of his motion for summary judgment on Counts I and III.  This affidavit was not contested by motion or counter-affidavit, so its substance must be taken as true.   ( Heidelberger v. Jewel Companies, Inc. (1974), 57 Ill.2d 87, 92-93, 312 N.E.2d 601; Watson v. Southwest Messenger Press, Inc. (1973),12 Ill.App.3d 968, 299 N.E.2d 409.) Carey contends that his affidavit establishes an innocent construction for his press release. We do not reach this issue, but consider the affidavit solely to determine the scope of Carey’s responsibilities as Cook County State’s Attorney. In pertinent part, the affidavit reads:

“5. That statements which are the subject matter of Counts I and II of the Substitute Third Amended Complaint were made by me as State’s Attorney of Cook County in response to statements by the late Mayor of Chicago, Richard J. Daley, that the person that pays off a police official is responsible for police corruption and not the policeman that takes the money, and that tavern owners may lose their liquor licenses after they testify against the police officers charged with extorting the payoff; a statement by former Chicago Superintendent of Police James Conlisk publicly attacking the credibility of a police officer who testified in a police extortion trial that other police officers extorted or received payoffs from tavern owners; and the statement of plaintiff Mitchell Ware that all pockets of corruption have been removed from the Chicago Police Department.

“6. The aforementioned statements were made during the pendency of an extortion trial of a Chicago Police Commander and other Chicago policemen before an unsequestered jury.

“7. That my many years of experience as a law enforcement official and my reading of studies of official corruption led me to believe that corruption cannot be eradicated until there is an admission that it exists and that the aforementioned statements of Mayor Daley, Superintendent Conlisk and Deputy Superintendent Ware, taken together, implied that individuals who came forward to testify about police extortion and payoffs could be punished and that police officers could infer that other law enforcement officials would not be vigilant in attempting to eradicate corruption.

“8. That by my statements I intended to call a halt to the type of statements being made by Mayor Daley, Superintendent Conlisk and Deputy Superintendent Ware and request that we work together to eradicate corruption.

“9. That I believed that my statements, taken as a whole, were true and in the best public interest.”

[6] We believe that Carey’s issuance of the press release remarks were legitimately related to his responsibilities as leader of community law enforcement and his concomitant duty to investigate police corruption. The ABA Standards charge the prosecutor with (1) the duty to insure faithful execution of the laws (s 1.1(a)); (2) providing legal advice and training concerning police functions (s 2.7); (3) an affirmative *917 responsibility to investigate suspected illegal activity when this is not adequately dealt with by the police (s 3.1(a)); and (4) maintaining liaison, cooperation and constructive joint effort with the police department to assure police effectiveness in dealing with the crime (s 1.1 of The Urban Police Function).

If that portion of the press release pertaining to Ware was communicated directly to him, rather than to the public, it undoubtedly would be absolutely privileged. Carey’s affidavit demonstrates his twofold concern over (1) the effect Ware’s statement may have had on a pending police extortion trial and Carey’s ability to prosecute future episodes of police misconduct, and (2) the need to recognize corruption exists as a prerequisite to its eradication. The communication of these concerns to Deputy Superintendent Ware was certainly consistent with the principles set forth by the ABA. It was also a proper exercise of Carey’s discretion as to the pretrial administration of criminal justice.

Following the Blair analysis, we must next decide whether Carey’s decision to inform the general public should be afforded absolute privilege. We are of the opinion that, like the Governor in Blair, Carey could, in the exercise of his discretion, communicate these remarks to the public. The ABA Standards portray the importance of public disclosure concerning the police function (ABA Standards, The Urban Police Function, s 9.3 (1973)) and the need for police accountability to the public (s 5.1). The State’s Attorney has the inherent power as the chief legal official in the county to maintain this accountability. As the Introduction to the Standards indicates “(h)e is called upon to make public statements” and “the prosecutor’s activity is in large part open to the public gaze and spotlighted by the press.” We cannot say Carey’s call for public accountability by Ware was outside the perimeters of the State’s Attorney’s discretion.

In Blair, the court noted that the Governor did not exceed the scope of his discretionary powers by informing the public about disciplinary actions he had directed be taken. Indeed, the effective functioning of our system of government is dependent largely upon the force of an informed public opinion as to the quality of service rendered by public officials, and free and unfettered action by the public’s representatives. ( Howlett v. Scott (1977), 69 Ill.2d 135, 144, 13 Ill.Dec. 9, 370 N.E.2d 1036.) Carey’s press release appeared to be an effort to harness the dual effectiveness of his office and public opinion to curb what he believed was an improper use of police powers by Ware. Carey’s remarks may be taken, therefore, as an official reprimand to Ware for actions that Carey believed were not in the best interest of criminal justice administration.

Ware argues, however, that the State’s Attorney’s office admitted that no prosecution or investigation of Ware was under process or even contemplated. Therefore, Carey exceeded his traditional responsibilities by accusing Ware of protecting corruption. This argument misses the point. Ware had made public statements that all pockets of corruption had been eradicated from the Chicago Police Department. Carey feared this sort of statement might have influenced an unsequestered jury in a pending federal trial. Investigation of whether Ware had made his statements with the intent of protecting corruption was not necessary since the effect of his statements might have influenced that jury. According to his affidavit, Carey acted based upon his experience in law enforcement, his studies of official corruption, and his belief that police corruption continued to exist in Chicago. At the point in time of Carey’s remarks to the press, Carey was only concerned with the veracity and effect of Ware’s statement and the appearance of impropriety by Ware. The fact that no formal investigation or charging of Ware based upon an intent to protect corruption took place does not militate against Carey’s responsibility to mitigate what he believed were damaging remarks by Ware. Accordingly, under the circumstances described above, Carey’s September 11, 1973, press release was absolutely privileged.

We need not decide if executive absolute immunity is applicable to Counts III and X, as they are affirmed for other reasons explained below.

III.

Count III of plaintiff’s complaint alleges that on September 23, 1973, Carey made the following defamatory statement during a public television appearance:

Question from Mary Jane O’Dell: “Mr. Carey, I don’t understand why are you miffed with Mitchell Ware because he seems to have done something before you did it . . . you say you are going to do this . . . you are planning to do this . . . but you haven’t actually done it yet. What has he done thats wrong?”

Carey: “No not at all. And if you will look back at what I have said regardless of how they have changed the tones of all this and all the silly counter charges that they have made . . . is that my only disagreement with Mitchell Ware is that I disagreed with two statements that he made. The first one indicating that all the police corruption had now been cleaned up and that he was aware of all the pockets of corruption . . . now this couldn’t be so because he hasn’t brought us all of these things that we know are still going on. Now we have worked on a cooperative basis with the C-5 Unit and they have done an excellent job in many areas . . . and I never questioned the job that they are doing. What I question are these types of public statements that are intended to delude the public into thinking that this is all over now or utilizes a signal to everyone that now you don’t have to cooperate anymore because the corruption is ended and we’re going to go back to good old times in Chicago. Those were my quarrels with Mitchell Ware . . . I also quarreled with his statement the other day that this gambling operation erradicated a three million industry when in fact the next day the operation is back in business.”

Question from Mary Jane O’Dell: “But isn’t it a fact your quarrel with him goes a little deeper than that, doesn’t it Mr. Carey, because you say that the statements he makes are not really true. Well granted that it hasn’t all been eradicated, but basically what you’re saying is that the Mayor and Superintendent Conlisk and Mr. Ware are all responsible are all responsible for protecting the syndicate. Thats what you’re really saying.”

Carey: “Oh yes, lets put that back in the proper perspective. Its a historical fact that the syndicate has operated for years in the city of Chicago and I dare anyone to try and dispute that fact and its also historical fact and its not only historical fact but its a matter of testimony in pending federal trials excluding the one thats going on now which we can’t discuss . . . but the federal trials that have gone on heretofore which indicated much corruption in high public officials including an ex-governor, including the present, at that time the present county clerk, and corruption within the police department, convictions have been had.”

Specifically, Ware contends that Carey’s response to the second question is an allegation that Ware was responsible for protecting the syndicate. Carey asserts that summary judgment in his favor on Count III was proper based on three grounds. First, the complaint alleges only conclusions with regard to the alleged defamatory statement and does not allege actual malice. Second, the specific statement alleged was never pleaded until after the statute of limitations had expired. Third, the specific statement complained of is capable of an innocent construction which does not defame Ware.

[7] We agree with Carey’s third contention and need not address his other arguments.  The innocent construction rule requires that an article, passage or statement be read and construed as a whole and the words given their natural and obvious meaning.  Words that are allegedly libelous capable of being read innocently must be so read and declared nonactionable as a matter of law.     Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill.2d 345, 347, 243 N.E.2d 217; John v. Tribune Co. (1962), 24 Ill.2d 437, 181 N.E.2d 105, Cert. denied, 371 U.S. 877, 83 S.Ct. 148, 9 L.Ed.2d 114.

[8] We are of the opinion that placed in the full context of the conversation Carey’s response is capable of an innocent construction. Mary Jane O’Dell offered two questions for Carey’s consideration. First, he was asked: “But isn’t it a fact your quarrel with him goes a little deeper than that, doesn’t it Mr. Carey, because you say that the statements he makes are not really true.” Immediately following was the query: “Well granted that it hasn’t all been eradicated, but basically what you’re saying is that the Mayor and Superintendent Conlisk and Mr. Ware are all responsible are all responsible for protecting the syndicate. Thats what you’re really saying.” Carey’s response, “Oh yes, let’s put that back in the proper perspective” might refer to either question. It is possible that Carey was merely quarreling with Ware’s claim that police corruption did not exist, rather than accusing Ware of protecting corruption and the syndicate. Accordingly, we are required to hold Carey’s statement is nonactionable.

The plausibility of this innocent construction is evidenced by Carey’s response to O’Dell’s previous question which is quoted above. There, she also presented Carey with a twofold question: “I don’t understand why are you miffed with Mitchell Ware” and “What has he done thats wrong?” Carey’s answer, “No not at all” more probably relates to the first question and indicates he was not “miffed” at Ware. Consistency would require his answer to O’Dell’s next question also be interpreted as sequential.

IV.

Count X of plaintiff’s complaint deals with the publication of a letter, signed by the foreman of the extended May 1975 Grand Jury, to the Superintendent of the Chicago Police Department, James M. Rochford. The substance of the letter was that evidence presented during the grand jury investigation indicated that Deputy Superintendent Ware completely ignored his responsibility to supervise the activities of the Security Section of the Chicago Police Department. Ware was accused of gross neglect of his official duties which attributed to the excesses engaged in by members of the Security System. Ware alleged that the letter was written at the direction of the defendants Carey, Berkowitz, Iavarone and Gillis, and published in the news media by or with their approval.

The complaint further alleges that the scope of the investigation by the extended May 1975 Grand Jury concerned criminal acts committed by police officers from 1967 to 1970. Defendants were aware that Ware did not join the Chicago Police Department until 1972. Thus, each defendant was allegedly aware of the falsity of the letter’s contents.

Defendants’ motion for summary judgment was supported by the affidavits of Carey, Berkowitz, Gillis and Iavarone. Each affiant asserted that he did not cause or direct the grand jury foreman to write, sign or issue the controverted letter. Nor did affiants cause or direct their agents *921 or employees to take such action. Attached also to the motion for summary judgment were excerpts from the deposition of the grand jury foreman, Sylvester Maida. Pertinent portions of Maida’s deposition testimony explaining the composition and publication of the letter follow:

“Q (by Mr. Ware): Had you ever met with any of the Defendants and that would include Bernard Carey, Ralph Berkowitz, Kenneth Gillis, Nicholas Iavarone, or any of their employees before the convening of the Cook County Grand Jury?

“A: No.

“Q: Have you ever met and conversed with either of the Defendants in this cause outside the Grand Jury room?

“A: No.

“Q: When did you initially decide to write the letter?

“A: I guess I did write the letter but the jury did discuss some kind of letter to Rochford, and this is what they discussed and what they wanted to send.

“Q: Did you discuss the idea of writing the letter, the contents of this letter with anyone other than a Grand Juror outside the Grand Jury room before it was written?

“A: No.

“Q: Were you given any directions or suggestions or assistance in the composition of this letter by anyone in the State’s Attorney’s office outside the Grand Jury room?

“A: No, not that I can recall, no.

“Q: Did anyone in the State’s Attorney’s office suggest to you the writing of the 44 page report or the letter in this case outside the Grand Jury room?

“A: No.

“The Witness: I didn’t write the letter. There was some college people there that were a little in fact, towards the end of the last couple of weeks of this here, when they wrote up this recommendation, there were a couple of well, I presume they had college educations because they were rather smart, as far as I was concerned, and they kind of took over the recommendations. And there was one or two others that were kind of a little sharp on this and I kind of just sat in the background and just listened to what they were doing and went along and read it and agreed with them on what they had said and on what they decided, the recommendation of it.

“That’s why I said I never wrote any letters, or I don’t think I ever made my own recommendation in that 44 page report. That was all agreed by the jurors, so this is the truth and nothing but the truth.”

During their depositions, defendants were questioned as to whether they wrote the letter to Rochford or assisted the foreman in its drafting. Defendants refused to answer on the grounds of grand jury secrecy. Therefore, defendants’ depositions are not inconsistent with their affidavits.

Plaintiff filed a response to defendants’ motion for summary judgment as to Count X. He contended that an issue of fact remained; that defendants’ affidavits were self-serving and failed to resolve the issue of responsibility for the letter; and that defendants failed to answer pertinent questions on discovery under the guise of grand jury secrecy. In support of his response, Ware attached excerpts from the deposition of Maida, excerpts from the depositions of defendants Iavarone and Gillis and his own affidavit.

Ware’s affidavit states that defendants were aware of when he began his services as a Chicago Police Department Superintendent. Affiant further stated that each defendant knew of the existence of a gag order issued by the circuit court of Cook County pertaining to the extended May 1975 Grand Jury. Iavarone and Gillis were working under the direction of Carey and Berkowitz and reported to them on grand jury activities.

Ware also stated that the letter “was delivered at the direction of the defendant Iavarone, and with knowledge and complicity on the parts of both Iavarone and Gillis (with knowledge) that it contained * * * defamatory allegations concerning (Ware).” Affiant attempted to identify the individuals specifically responsible for the letter but defendants chose not to answer during discovery, alleging grand jury secrecy.

Excerpts from Maida’s deposition testimony selected by Ware establish that Maida did not personally write the letter to Superintendent Rochford. In fact, Maida had little or no recollection as to the drafting, editing, typing or mailing of the letter. However, Maida did admit the possibility that the grand jury was responsible for the letter. He maintained that his involvement, if any, consisted of reading the proposed letter and signing it.

Gillis’ deposition revealed that he was familiar with the grand jury letter and report. However, Gillis was instructed by counsel not to answer questions pertaining to the grand jury letter. Gillis, therefore, offered no information as to the preparation of the letter and report.

The deposition testimony of Iavarone established that he was familiar with the letter sent to Rochford, that he knew its contents and that he had it physically delivered. The witness professed to know who wrote the letter but was instructed by counsel not to answer the question: “Did you write the letter?” Iavarone stated that Carey knew about the letter but did not know its contents until this suit was filed. He did not personally show the letter to Carey or Berkowitz. Iavarone did show the letter to Gillis, but did not know if Gillis discussed it with Carey or Berkowitz. Iavarone also testified that his secretary had typed the letter.

We find that, based on the above-mentioned affidavits and deposition excerpts, no triable issue of fact existed as to whether defendants were responsible for the publication of the grand jury letter.

[9][10] Defendants’ affidavits are neither controverted by Ware’s affidavit nor by deposition testimony. An affidavit in support of a motion for summary judgment is actually a substitute for in-court testimony and should contain as much information as the affiant could competently testify to if he were sworn as a witness. ( Fooden v. Board of Governors of State Colleges and Universities (1971), 48 Ill.2d 580, 587, 272 N.E.2d 497, Cert. denied (1972), 408 U.S. 943, 92 S.Ct. 2847, 33 L.Ed.2d 766.) Here, defendants directly contradicted the allegations of Count X in their affidavits by denying any responsibility for the drafting or publication of the grand jury letter. Where such averments of fact are not contradicted by counteraffidavit, they must be taken as true, notwithstanding the existence of contrary averments in the adverse party’s pleadings which merely purport to establish issues of fact. (Fooden.) Ware’s counteraffidavit is wholly conclusory, speculative and merely serves to restate the allegations of his complaint with reference to defendants’ responsibility for the letter. Ware states no facts indicating his personal knowledge concerning these allegations. Moreover, Ware admitted in his deposition that he had no personal knowledge regarding what transpired before the grand jury. Only defendants and Maida would have personal knowledge as to responsibility for the letter. Defendants’ affidavits denying responsibility remain uncontroverted by Ware. Maida’s explanation that other jurors may have been responsible for the letter is consistent with defendants’ affidavits. Accordingly, summary judgment for defendants as to Count X was proper.

Ware also complains that defendants’ failure to discuss the letter during deposition testimony under the guise of grand jury secrecy creates an issue of fact. Ware asserts the fact of nondisclosure in his counteraffidavit and defendants’ depositions bear this out. During deposition questioning, on advice from counsel, defendants refused to answer certain questions pertaining to the authorship, composition and delivery of the grand jury letter. Defendants’ counsel made timely objections to these questions and Ware “certified” these questions.

We are of the opinion that this issue should have been raised in the trial court. (See Hill v. Thomas B. Jeffery Co. (1920), 292 Ill. 490, 127 N.E. 124.) Supreme Court Rule 211 (Ill.Rev.Stat.1977, ch. 110A, par. 211(c)(4) ) provides:

“Any party may, but need not, on notice and motion obtain a ruling by the court on the objections In advance of the trial.” (Emphasis added.)

Moreover, Rule 219, concerning refusal to answer by a deponent, provides that the proponent of the question may move for an order compelling an answer. Additional discovery options available to Ware were the possibilities of a protective order regulating discovery to prevent an unreasonable disadvantage, or oppression by defendants (Rule 201(c)(1) ); court supervision of discovery (Rule 201(c)(2) ); or discovery sanctions where appropriate (Rule 219(c), (d) ).

If Ware had attempted to implement these discovery safeguards, the issue of grand jury secrecy as a purported ground for refusal to answer deposition questions could have been litigated below. Our record, however, is silent on this issue. Since defendants have denied involvement with the grand jury letter via affidavits, we will not construe their deposition silence as inconsistent with these denials.

Construing all of the materials before the trial court in the light most favorable to the non-moving party Century Display Manufacturing   Corp. v. D. R. Wager Construction Co., Inc.  (1977), 46 Ill.App.3d 643, 4 Ill.Dec. 913, 360 N.E.2d 1346), we find no triable issue of fact as to Count X.

For all of the aforementioned reasons, the order of the circuit court of Cook County granting defendants summary judgment on Counts I, III and X is affirmed.

Affirmed.

PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.

Terrence J. BARON, Defendant-Appellant.

130 Ill.App.2d 588, 264 N.E.2d 423

The defendant, Terrence J. Baron, was indicted for the illegal sale of hallucinogenic drugs, in violation of section 802(b) of Chapter 111 1/2 of Illinois Revised Statutes of 1969. The indictment charged that the defendant sold 220 LSD tablets on May 27, 1969, and the indictment bore number F69-41. This was a second offense and was therefore classified as a felony. The first offense against the defendant was charged in a complaint which was then pending before the same court. It bore case number M69-590, and was classified as a misdemeanor. See: Ill.Rev.Stat.1969, ch. 111 1/2, par. 804. A further and unrelated misdemeanor charge was pending against the defendant which bore number M69-591.

The defendant pled guilty to charges M69-590 and F69-41, and the State then filed a nolle prosequi to case number M69-591. The case numbered F69-41 was then set for hearing on an application for probation and for hearing in aggravation and mitigation. The court ordered the probation officer to make an investigation and report back within two weeks.

At this point in the proceeding, it was made known to the court that the guilty pleas in cases F69-41 and M69-590 had both been obtained upon a promise of probation. When it became apparent that the court was not going to be governed by the negotiated plea agreement, the defendant’s counsel immediately asked that the pleas of guilty be withdrawn in cases F69-41 and M69-590, and that the nolle prosequi, which had been entered in case M69-591, be withdrawn and the case reinstated, thus placing everything in the proceedings back at its initial status. The court denied the motion and granted probation for a period of three years, conditioned upon the first nine months thereof being served in the Illinois State Prison Farm at Vandalia.

[1] The defendant filed an extensive motion for new trial, which was denied, and he has appealed. He contends, among things, that the trial court erred in refusing to permit him to withdraw his pleas of guilty. We believe that the defendant is correct in this contention.

The defendant obviously agreed to plead guilty upon the misapprehension that he would receive an unconditional probation on the felony charge of selling hallucinogenic drugs. The record permits no other conclusion. The court would not accede to such agreement, and conditioned the defendant’s probation upon the first nine months thereof being served in the Illinois State Prison Farm at Vandalia.

In The People v. Riebe, 40 Ill.2d 565 at page 568, 241 N.E.2d 313 at page 314 (1969), the court summarized the oft-repeated principles applicable to permitting the withdrawal of a plea of guilty, in these words:

‘The discretion of the trial court to permit the withdrawal of the plea of guilty is a judicial discretion which should always be exercised in favor of innocence and liberty. The law favors a trial upon the merits by jury, and all courts should so administer the law and construe the rules of practice as to secure a hearing upon the merits, if possible. The least surprise or influence causing a defendant to plead guilty when he has any defense at all should be sufficient cause to permit a change of the plea from guilty to not guilty. The withdrawal of the plea of guilty should not be denied in any case where it is evident that the ends of justice will be served by permitting the plea of not guilty in its stead.’

The Advisory Committee on the Criminal Trial of the American Bar Association Project on Minimum Standards for Criminal Justice with reference to Pleas of Guilty, recommends in Part II, Section 2.1, (a)(ii)(4), relating to the withdrawal of a guilty plea, that the court should allow a defendant to withdraw a guilty plea if the defendant proves that ‘he did not receive the charge or sentence concessions contemplated by the plea agreement and the prosecuting attorney failed to seek or not to oppose these concessions as promised in the plea agreement.’ See: The People v. Walston, 38 Ill.2d 39, 43, 44, 230 N.E.2d 233 (1967).

[2] We are compelled to the conclusion that the trial judge knew of the negotiations that preceded the plea of guilty in cases numbered F69-41 and M69-590. While that judge was not the judge who entered the subsequent orders, this circumstance does not alter our view that the ends of justice require that the defendant be permitted to withdraw his plea of guilty in cases numbered M69-590 and F69-41, and to substitute in lieu thereof, pleas of not guilty. We note that as to the other misdemeanor case numbered M69-591, a nolle prosequi was entered at the time the guilty pleas were entered. The record and appellant’s brief indicate*591 that this nolle prosequi was a part of the same plea agreement. Consequently, the defendant must agree to the reinstatement of that case, subject to his right to change his pleas, if he is to be permitted to alter his pleas in cases F69-41 and M69-590.

If such concession is not forthcoming, the judgment herein is to be affirmed; if such concession is made, then the judgment of the trial court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

[3][4][5] The trial judge who entered the judgment appealed from herein evidently became confused with reference to the number, charge, plea, and status of each of the three cases which were pending against the defendant. Under such circumstances, he entered an order that the felony case against the defendant, numbered F69-41 be designated a misdemeanor. Such order was beyond his power. It is the duty of the State’s Attorney in misdemeanor cases, and the State’s Attorney or Grand Jury in felony cases, to determine the charge which will be placed against a person.

Section 5 of Chapter 14 of Illinois Revised Statutes of 1969 provides that it is the duty of the State’s Attorney to commence and prosecute all criminal actions, suits and indictments. Article III of the Illinois Constitution divides the powers of the government among the legislative, executive and judicial departments, and provides that neither of these departments shall exercise powers belonging to either of the other departments.

The State’s Attorney’s office is a part of the executive branch of the government, and the powers exercised by that office are executive powers.  A judge or court cannot exercise the powers of the executive branch of our government.   People ex rel. Elliott v. Covelli, 415 Ill. 79, 88, 89, 112 N.E.2d 156 (1953). Thus, the court erred in designating the felony charge as a misdemeanor and in treating it as such. This order was void as a judicial encroachment upon the executive power of the State’s Attorney.

The other matters raised by the defendant need not be discussed in view of the position we have taken herein. Accordingly, the judgment is reversed and remanded, subject to the conditions enumerated in the opinion.

Reversed and remanded.

Supreme Court of the United States.

 

VOGEL, Ex’r, etc.,

v.

GRUAZ.

110 U.S. 311, 4 S.Ct. 12, 28 L.Ed. 158

This is an action on the case, brought by Timothy Gruaz, against Rudolph Bircher, to recover damages for the speaking and publishing of false, malicious, scandalous, and defamatory words, charging the plaintiff with being a thief, and with having stolen the money of the defendant, meaning the crime of larceny. The suit was commenced in a state court of Illinois, and was removed by the defendant into the circuit court of the United States for the Southern district of Illinois. At the trial before a jury a verdict was rendered for the plaintiff, June 6, 1879, for $6,000 damages. On the next day the defendant filed a motion for a new trial. On the fourteenth of June the defendant died, on the twelfth of July an order abating the case was moved for, on behalf of the defendant, and on the sixteenth of August the court overruled the motion for a new trial and the motion for an order of abatement, and entered a judgment for the plaintiff, against Bircher, for $6,000 and costs, as of June 7, 1879. The order for judgment recited that the hearing by the court of the motion for a new trial was, when it was filed, postponed to a then future and convenient day of the same term, and that the defendant died pending the hearing of the motion. Leave was given to the executor of the defendant to prepare a bill of exceptions and to take a writ of error. The bill of exceptions being signed, it was filed by the executor, and the writ of error was issued. Various errors are assigned, and among them that the circuit court did not grant the motion to abate the suit, and that it rendered a judgment against Bircher after his death. But it is unnecessary to pass on those questions, because we are of opinion that the judgment must be reversed for another error committed at the trial.

Three witnesses for the plaintiff gave evidence tending to prove the speaking to them by the defendant of more or less of the words set forth in the declaration; and afterwards C. L. Cook was sworn as a witness for the plaintiff, and testified that he was state’s attorney for Madison county, Illinois; he had a slight acquaintance with Bircher; and that he knew Gruaz. The following proceedings then occurred: ‘Question. I will ask you if you had any conversation with Dr. Bircher with regard to Gruaz, and, if so, when was it? Counsel for defense asked witness if at that time he was occupying the same position he now holds. Answer. Yes, sir. Q. It was communicated to you while you held that position and were acting in that capacity, whatever was communicated to you by Bircher? A. Yes, sir. (Defendant’s counsel object to witness testifying to matters disclosed to him by the defendant under the circumstances stated, on the ground that such communications are to be treated as privileged.) The Court. I will ask the witness if he regarded it professionally as a privileged communication? A. I had never met defendant before; he was introduced to me by a citizen of our place, and he informed me that he wanted to talk with me with regard to a matter he wanted to bring before the grand jury. (Objected to.) The Court. I will allow the witness to state what the doctor said on that occasion. Of course, if he made the communication to the witness in good faith, there would be no malice about it, and I shall instruct the jury to* disregard it. The objection is overruled. To which ruling of the court the defendant at the time excepted. A. As I stated, I had at that time no acquaintance with defendant whatever. He inquired for the state’s attorney, and was introduced to me, and he spoke of his affairs. He said he wanted to bring a matter before the grand jury in regard to Mr. Gruaz. I talked with him in regard to the nature of the matter, and he talked pretty freely in regard to it, and I directed him to the grand jury room. He said a good many things. He was evidently in earnest at the time, expressed himself very freely in regard to him. I would not like to swear to the exact words used, or that anybody used at the time. I can give the substance of what he said, I suppose. He wanted to prosecute Gruaz for stealing, was the amount of it. I recollect this: he charged him with having stolen his money, and I asked him how, and he told me how it had been done. Gruaz was his agent and handled his funds, rented his farms, and had failed to account for a large amount of money, he told me, and he charged him in this conversation with having stolen his money, and he said he wanted to know if there was any law in this state to prosecute a man for that. I have no objection to state any words. I remember his making the charge that he had stolen his money, but I can’t swear that the word ‘thief’ was used at that time; that it was in substance, undoubtedly. My impression is that this was the March term, 1878, of the circuit court of Madison county, either that or October term, 1877; my recollection and decided impression is that it was the spring term, 1878. Dr. Bircher went into the grand jury room and gave his statement to the grand jury. He was anxious, of course, to have the indictment found, and he evidently believed or so expressed himself. (Counsel for defendant objected to witness stating his opinion about what defendant evidently believed.) The Court. He said he went before the grand jury, and said he seemed to be in earnest in his movements, but he didn’t say what took place before the grand jury. Don’t know, I suppose. Witness. No, I don’t know. Cross-examination. Maj. Prickett introduced Bircher to me; never saw him before in my life. I was certain he came to see me as prosecuting attorney, in good faith. That was his business, as he stated it to me. After he made his statement to me I advised him to go before the grand jury; directed him to their room. He went there by my advice. Hold on-I don’t say that; I advised him that he had a good case. He came to me and I showed him where the grand jury room was. He stated his case to me as state’s attorney. I then directed him where to go, and said I should prosecute it as vigorously as possible, if the indictment was found. In regard to the advice I gave him, I rather encouraged him to drop the thing; I told him he better sue Mr. Gruaz first, and see if he couldn’t get judgment against him, and so put it in a better shape to prosecute him. He stated his case, and I thought from his statement that he would have few, if any, witnesses besides himself, and that it would be doubtful, however honestly he might believe, that he had cause; it would be doubtful whether the jury would bring a bill; so I advised him to bring a civil suit; but, said I, you are here, and you mustn’t think hardly of me if the grand jury don’t find a bill; and I directed him to the grand jury room.’

The bill of exceptions also contains the following: ‘In reference to the testimony of state’s attorney C. L. Cook, the court instructed the jury as folfows: ‘I admitted that evidence with an explanation, and with the explanation made in the admission of it I think I am content, and I think the jury may take it into consideration; but if they think the defendant was actuated by honest motives in making the declaration he did, they will disregard it.’ To the giving of which last instruction the defendant excepted, for the reason that the instruction ignores the element of want of probable cause, and for the reason also that the jury should have been instructed to disregard Cook’s testimony entirely.’

We are of opinion that what was said by Bircher to Mr. Cook was an absolutely privileged communication. It was said to Mr. Cook while he was state’s attorney or prosecutor of crimes for the county, and while he was acting in that capacity. Bircher inquired for the state’s attorney and was introduced to him, and stated to him that he wanted to talk with him about a matter he wanted to bring before the grand jury in regard to Gruaz. He laid the matter before Mr. Cook, and charged Gruaz with having stolen his money, and was asked how, and stated how and inquired of Mr. Cook if there was any law in Illinois by which a man could be prosecuted for that.  The grand jury was then in session, and Mr. Cook advised Bircher that he had a good case and directed him to the grand jury-room, and Bircher went before the grand jury. If all this had taken place between Bircher and an attorney consulted by him who did not hold the public position which Mr. Cook did, clearly, the communication would have been privileged and not to be disclosed against the objection of Bircher.  Under the circumstances shown, Mr. Cook was the professional adviser of Bircher, consulted by him on a statement of his case, to learn his opinion as to whether there was ground in fact and in law for making an attempt to procure an indictment against Gruaz.  The fact that Mr. Cook held the position of public prosecutor, and was not to be paid by Bircher for information or advice, did not destroy the relation which the law established between them.  It made that relation more sacred on the ground of public policy.  The avenue to the grand jury should always be free and unobstructed.  Bircher might have gone directly before it without consulting with Mr. Cook, but if he chose to consult him instead of a private counsel, there was great propriety in his doing so.  Any person who desires to pursue the same course should not be deterred by the fear of having what he may say in the confidence of a consultation with a professional adviser, supposed to be the best qualified for the purpose, disclosed afterwards in a civil suit against his objection.   Oliver v. Pate, 43 Ind. 132. By the statute of Illinois in force at the time of this occurrence, it was made the duty of each state’s attorney to ‘commence and prosecute’ all criminal actions, suits, indictments, and prosecutions in any court of record in his county, in which the people of the state or county might be concerned. (Rev. St. 1874, c. 14, § 5, subd. 1.) Under this provision it was the province and the privilege of any person who knew of facts tending to show the commission of a crime, to lay those facts before the public officer whose duty it was to commence a prosecution for the crime. Public policy will protect all such communications absolutely, and without reference to the motive or intent of the informer or the question of probable cause; the ground being that greater mischief will probably result from requiring or permitting them to be disclosed than from wholly rejecting them. Mr. Cook learned from Bircher the things to which he testified, because he occupied the position of public prosecuting officer, and because he was acting at the time as the legal adviser of Bircher in respect to the matter and question which Bircher was laying before him. The free and unembarrassed administration of justice in respect to the criminal law in which the public is concerned, is involved in a case like the present, in addition to the considerations which ordinarily apply in communications from client to counsel in matters of purely private concern. Bircher made his communication to Mr. Cook for the purpose of obtaining professional advice as to his right, and that of the public through him, to have a criminal prosecution commenced by Mr. Cook by the intervention of the grand jury against Gruaz.

But there is another view of the subject. The matter concerned the administration of penal justice, and the principle of public safety justifies and demands the rule of exclusion. In Worthington v. Scribner, 109 Mass. 487, an action for maliciously and falsely representing to the treasury department of the United States that the plaintiff was intending to defraud the revenue, it was held that the defendant could not be compelled to answer whether he did not give to the department information of supposed or alleged frauds on the revenue contemplated by the plaintiff. The principle laid down in that case was, that it is the duty of every citizen to communicate to his government any information which he has of the commission of an offense against its laws; and that a court of justice will not compel or allow such information to be disclosed, either by the subordinate officer to whom it is given, by the informer himself, or by any other person, without the permission of the government, the evidence being excluded not for the protection of the witness or of the party in the particular case, but upon general grounds of public policy, because of the confidential nature of such communications. The authorities are collected and reviewed in that case. The case of Dawkins v. Rokeby, L. R. 8 Q. B. 255, there cited, was affirmed by the house of lords, L. R. 7 H. L. 744. See, also, 1 Greenl. Ev. § 250; Black v. Holmes, 1 Fox & Sm. 28.

It makes no difference that there was evidence of the speaking of the same words to persons other than Mr. Cook, and that the speaking of them to Mr. Cook was not the sole ground of action or of recovery. The evidence was incompetent, and it must be inferred that it affected the minds of the jury both on the main issue and on the question of damages.

It results from these views that the judgment below cannot be upheld, and that it must be reversed, and the case be remanded to the circuit court, with direction to set aside the verdict and vacate the judgment and take such further proceedings as may be according to law and not inconsistent with this opinion.

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