Sherwood v. City of Aurora

• Court: Appellate Court of Illinois
• Decided: February 25, 2009
• Docket: 2-08-0300 NRel
• Status: Unpublished

Opinion

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 No. 2--08--0300

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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