Sherwood v. City of Aurora

SUPREME COURT CASES

Laws-info.com » Cases » Illinois » 2nd District Appellate » 2009 » Sherwood v. City of Aurora

State: Illinois

Court: 2nd District Appellate

Docket No: 2-08-0300 NRel

Case Date: 02/25/2009

Preview:No. 2--08--0300 Filed: 2-25-09 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ JEFF SHERWOOD, ) Appeal from the Circuit Court ) of Kane County. Plaintiff-Appellant, ) ) v. ) No. 06--MR--474 ) THE CITY OF AURORA, ) ) Defendant-Appellee ) Honorable ) Michael J. Colwell, (Michael Leon, Plaintiff). ) Judge, Presiding. ______________________________________________________________________________ JUSTICE SCHOSTOK delivered the opinion of the court: On October 30, 2006, the plaintiff, Jeff Sherwood, an Aurora police officer, filed a complaint seeking a declaratory judgment that the investigation conducted by the defendant, the City of Aurora, into his alleged misconduct violated the requirements of the Uniform Peace Officers' Disciplinary Act (the Act) (50 ILCS 725/1 et seq. (West 2006)). The parties filed cross-motions for summary judgment. On March 13, 2008, the trial court granted the defendant's motion and denied the plaintiff's motion. The plaintiff appeals from that order. We affirm. On July 20, 2006, Aurora Chief of Police William Powell received a phone call from the Danville chief of police. The Danville police chief advised Chief Powell that in the early morning hours on July 18, 2006, the plaintiff had been intoxicated, involved in a fight with other individuals at a motel, and extremely uncooperative with the Danville police officers who were called to

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investigate the incident. The Danville police chief faxed to Chief Powell a copy of Danville police department incident report No. 06--8729. The report contained further details of the incident at the motel. Specifically, the report indicated that certain Danville police officers responded to a battery call at a local motel. When they arrived, the plaintiff indicated that he had been battered by five other males in a motel room. Four of the subjects were known and one was unknown. All of the other subjects involved in the altercation indicated that the plaintiff was in the room drinking and began causing problems. One subject requested that the plaintiff leave the room but the plaintiff refused. The plaintiff then pushed the subject, the subject pushed him back, and the plaintiff then punched the subject in the nose. The subject told the officers that, when he began attempting to push the plaintiff out of the room, he could have hit the plaintiff in the face in the process. The report indicated that the plaintiff had swelling around his right eye and a small laceration above the eye. Another subject indicated that, as he was attempting to restrain the plaintiff, the plaintiff hit him in the back of the head. A third subject indicated that his knee had been injured as he was trying to break up the fight. The report also indicated that the plaintiff was very uncooperative with the Danville police officers when they arrived. The plaintiff appeared to be very intoxicated and had to be asked several times to provide his identification before he finally complied. Based on the information provided, Chief Powell initiated an internal investigation of the plaintiff. Lieutenant Paul B. Nelson was assigned to perform the investigation. As part of the Aurora police department's internal investigation procedures, Lt. Nelson completed a "Performance Complaint Form," dated July 25, 2006. On that form, Lt. Nelson was listed as the complainant. The form also included a "Synopsis of Incident," which was completed by Lt. Nelson. Lt. Nelson

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essentially summarized the information contained in the Danville police report. The form also included an attestation, signed by Lt. Nelson and notarized, indicating: "I understand that this statement of complaint will be submitted to the Aurora Police Department, Office of Professional Standards, and will serve as a basis for an internal investigation. I declare and affirm that the facts contained herein are complete, accurate, and true to the best of my knowledge and belief. Furthermore, I agree to fully cooperate with any investigation and agree to appear at any civil or criminal proceeding if necessary. I also understand that any intentional false statements herein attested to by me, may be cause for criminal and/or civil proceedings against me." On October 2, 2006, Lt. Nelson sent the plaintiff a notification of formal interrogation. The notification indicated the nature of the investigation, the date and time that the plaintiff was required to be present for an interrogation, and the plaintiff's rights regarding the interrogation. On October 7, 2006, Lt. Nelson conducted a formal interrogation of the plaintiff. On October 13, 2006, Lt. Nelson submitted his final report. In that report, Lt. Nelson concluded that the plaintiff violated Aurora police department General Orders 4.3.1(A), requiring obedience to laws, and 4.3.2(C), governing conduct and behavior. Ultimately, on December 15, 2006, the plaintiff was suspended for three days without pay. On October 30, 2006, the plaintiff filed a complaint for declaratory judgment. In his complaint, the plaintiff noted that section 3.8(b) of the Act (50 ILCS 725/3.8(b) (West 2006)) stated that "[a]nyone filing a complaint against a sworn peace officer must have the complaint supported by a sworn affidavit." The plaintiff alleged that on October 2, 2006, he was notified, pursuant to the Act, that an investigation was being conducted based upon a complaint by Lt. Nelson. The plaintiff

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argued that, although Lt. Nelson filed an affidavit in support of his complaint, the affidavit was insufficient because Lt. Nelson had no personal knowledge of the allegations contained in the complaint. The plaintiff requested that the court make "binding declarations of rights concerning the construction of 50 ILCS 725/3.8(b) [(West 2006)] to require the City of Aurora and its agent to investigate and discipline peace officers in accordance with [the Act]." On October 12, 2007, the defendant filed a motion for summary judgment. In that motion, the defendant argued that the Act was designed to provide a series of procedural protections to police officers when they were being investigated for alleged misconduct and that it was not a limitation on a police department's ability to investigate officer misconduct. The defendant argued that section 3.8(b) of the Act did not indicate that a formal investigation of police officer misconduct can commence only upon the filing of a sworn complaint by a person with firsthand knowledge of the alleged officer misconduct. The defendant argued that, because there was no requirement in the Act that an internal investigation can be initiated only when there has been a sworn complaint filed against an officer, it was irrelevant whether Lt. Nelson's complaint form complied with section 3.8(b). The defendant further argued that section 3.8(b) was intended to apply to a third party such that, if that party wished to file a complaint against a police officer, he or she had to do so under the penalty of perjury. Alternatively, the defendant argued that, even if the Act could be interpreted as requiring a sworn complaint under section 3.8(b) as a condition precedent to an internal investigation, Lt. Nelson's complaint complied with section 3.8(b) because the matters he set forth were based on his own knowledge gleaned from the Danville police report. On October 15, 2007, the plaintiff filed a cross-motion for summary judgment. In that motion, the plaintiff argued that Lt. Nelson's sworn complaint did not comply with section 3.8(b) of

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the Act. The plaintiff argued that an affidavit must be based upon the personal knowledge of the affiant such that the affiant could competently testify at trial to the contents of the affidavit. The plaintiff argued that Lt. Nelson's affidavit was invalid because it was based on the Danville police report, and he therefore had no personal knowledge of the allegations contained in the complaint. The plaintiff argued that without personal knowledge, Lt. Nelson could not competently testify at trial to the contents of the affidavit. Accordingly, the plaintiff argued that he was entitled to summary judgment on his complaint. On February 26, 2008, the trial court issued a written letter opinion. The trial court found that the Act did not contain any language that explicitly required a complaint in order to initiate an investigation of an officer. Additionally, the trial court found: "It is apparent that the investigation of Officer Sherwood's misconduct could have properly been triggered by the phone call from the Chief of Police in Danville alone. No formal complaint was required to begin an informal inquiry into his conduct. Even if, for argument's sake, the Complaint were deficient for the reasons stated by the plaintiff, such deficiencies would not be fatal. Taking the Complaint out of the equation, the City of Aurora had information of officer misconduct which was provided to them by the Chief of Police in Danville. There is nothing in the statute that prevents the City from conducting an investigation based solely on this information." Accordingly, on March 13, 2008, the trial court entered an order denying the plaintiff's motion for summary judgment and granting the defendant's motion for summary judgment. Thereafter, the plaintiff filed a timely notice of appeal.

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On appeal, the plaintiff argues that, pursuant to the Act, an investigating agency must have a valid affidavit in support of a complaint prior to interrogating an officer as part of a formal investigation into alleged officer misconduct. The plaintiff argues that the affidavit in support of the complaint filed by Lt. Nelson was not valid because Lt. Nelson did not have firsthand knowledge of the misconduct alleged in the complaint. The plaintiff argues that the Danville police officers involved in his alleged misconduct should have been required to execute sworn affidavits before he was subjected to a formal interrogation. In response, the defendant argues that the Act does not require a sworn complaint to be filed prior to a formal interrogation of a police officer. Alternatively, the defendant argues that, even if the Act did require a sworn complaint, Lt. Nelson's complaint satisfied the statute. To determine whether the Act requires a sworn complaint by someone with firsthand knowledge of the alleged misconduct before an officer can be subjected to an interrogation, we begin with the language of the Act. The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). To determine the legislature's intent, a court first looks to the statute's language, which is to be given its plain and ordinary meaning. Harrisonville Telephone Co. v. Illinois Commerce Comm'n, 212 Ill. 2d 237, 247 (2004). When the language of the statute is clear, it must be applied as written without resort to aids or tools of interpretation. DeLuna, 223 Ill. 2d at 59. Where a statute is capable of more than one reasonable interpretation, the statute will be deemed ambiguous. General Motors Corp. v. State of Illinois Motor Vehicle Review Board, 224 Ill. 2d 1, 13 (2007). In that event, the court may consider extrinsic aids to construction, such as legislative history. Millineum Maintenance Management, Inc.

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v. County of Lake, 384 Ill. App. 3d 638, 648 (2008). The construction of a statute is a question of law, which we review de novo. DeLuna, 223 Ill. 2d at 59. The relevant portions of the Act are as follows: "

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