Burnette v. Terrell

SUPREME COURT CASES

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Burnette v. Terrell

State: Illinois

Docket No: 106678 Rel

Case Date: 03/19/2009

Preview:Docket No. 106678.

IN THE SUPREME COURT OF THE STATE OF ILLINOIS

EDWIN A. BURNETTE, Public Defender of Cook County, Petitioner, v. HONORABLE LAWRENCE TERRELL, Judge of the Circuit Court of Cook County, Respondent. Opinion filed March 19, 2009.

JUSTICE GARMAN delivered the judgment of the court, with opinion. Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride, Karmeier, and Burke concurred in the judgment and opinion.

OPINION Petitioner, Edwin A. Burnette, in his capacity as public defender of Cook County, filed this original action pursuant to Supreme Court Rule 381 (188 Ill. 2d R. 381), seeking either a writ of mandamus or a writ of prohibition against the Honorable Lawrence Terrell, Judge of the circuit court of Cook County. We allowed petitioner's motion for leave to file his petition. In addition, we allowed the Cook County public guardian to file a brief amicus curiae pursuant to Supreme Court Rule 345 (210 Ill. 2d R. 345). While we find merit in petitioner's claim, we decline to employ either of the extraordinary remedies requested. Rather, we choose to resolve the controversy by exercising this court's supervisory authority in the form of a supervisory order.

BACKGROUND This controversy arises as a result of respondent's repeated removal of an individual assistant public defender (hereinafter identified as K.T.) from representing clients in his courtroom and his appointment of other assistant public defenders to represent those clients. The record before us includes transcripts of several proceedings in respondent's courtroom and the affidavits of K.T., Parle RoeTaylor, assistant public defender and acting chief of the Fourth Municipal District for the office of the Cook County public defender, respondent, and the Honorable Edmund Ponce de Leon, presiding judge of the circuit court of Cook County, Fourth Municipal District. On May 8, 2008, K.T., who was then one of three public defenders assigned by the public defender's office to represent clients in respondent's courtroom, petitioned for substitution of judge in two cases. Both petitions were allowed by respondent. That same day, Roe-Taylor was called to the office of the presiding judge, where she was informed that respondent wanted K.T. "removed from his courtroom" because he was having "problems" of an unspecified nature with her. Roe-Taylor informed the presiding judge that she was not aware of any problems and had received no information from respondent regarding K.T. She noted that K.T. had recently had a jury trial before respondent in which her client was acquitted. Between that date and May 21, 2008, respondent recused himself from over 20 cases in which K.T. represented the defendants. On May 21, 2008, defendant Brad Scianna appeared in respondent's courtroom and requested that the court appoint a public defender to represent him. The following exchange occurred: Respondent: "Where's the Public Defender?" K.T.: "Assistant Public Defender [K.T.] Respondent: "All right. You can stand down." K.T.: "Your Honor, it is my week." Respondent: "All right now. I'm going to ask you again to stand down. You're either going to do it voluntarily or you are going to be put down." -2-

Respondent then directed another assistant public defender, B.H., to speak with defendant Scianna. The following day, May 22, 2008, K.T. appeared in the arraignment of defendant Kathy Neeld. Respondent again directed K.T. to "stand down," and directed B.H. to speak to defendant Neeld. On this occasion, Roe-Taylor, the immediate supervisor of Assistant Public Defenders K.T. and B.H., was present. The following exchange occurred: Roe-Taylor: "Excuse me, your Honor." Respondent: "You have no standing. Standing down, ma'am. Roe Taylor: "Attorney supervisor ..." Respondent: "Stand away from the bench." Bailiff: "Step away, Counsel." Respondent: "Refusal to do so will be contemptuous." (K.T.'s motion to quash arrest and suppress evidence in Neeld's case was subsequently heard by a different judge. The motion was granted and the case was dismissed.) Later that day, Roe-Taylor spoke to the presiding judge about respondent's "threat of contempt" against her. The presiding judge informed Roe-Taylor that he would speak to respondent about the matter. The presiding judge subsequently informed Roe-Taylor that respondent would recuse himself if he learned that K.T. was the assigned attorney on any matter in his courtroom. Thereafter, according to K.T.'s affidavit, respondent recused himself from at least 27 cases in which she represented the defendants. He "dismissed" her or ordered her to "stand down" in at least 13 additional cases. She states that in several of these cases she had significant contact with the client, the client's family members, and potential witnesses prior to being removed by the respondent. On June 3, 2008, defendant Ramiro Nevarez appeared in respondent's courtroom for a hearing on his motion to quash arrest and suppress evidence. The motion and the supporting memorandum of law had been prepared and filed by K.T. The subpoenas duces tecum and witness subpoenas were prepared by K.T. In addition, orders that Nevarez participate in the Cook County Department of -3-

Corrections drug treatment program and that he be examined by a representative of the TASC program were prepared by K.T. and signed by respondent. K.T.'s affidavit states that she had interviewed a potential witness in this case, visited the scene of the alleged crime, referred the matter for expert witness analysis of the fingerprint evidence, and had significant client contact via telephone. According to respondent, the memorandum of law prepared by K.T. in support of the motion improperly cited a 1992 decision of this court that had been superseded in 1999 by an amendment to the Illinois Municipal Code. When asked if he had a lawyer, defendant Nevarez said that he was represented by K.T. An unidentified Ms. O'Brien stated, "No, Judge, he has [B.H.], because on 05/28 you appointed [B.H.]" Respondent informed the defendant that he "can't pick a free lawyer." B.H. stated that he was not ready for the hearing at that time but that he would be ready if the matter could be passed. The matter was passed and recalled later that day. The hearing went forward with B.H. representing the defendant. The motion was denied. On June 5, 2008, defendant Armando Gonzalez appeared in respondent's courtroom for a hearing on his motion to quash arrest and suppress evidence. Respondent asked Gonzalez if he had a lawyer. He responded, "Yes, I do, [K.T.] She's been assigned to my case." Respondent informed the defendant that "she's no longer assigned to your case" and "assigned" another assistant public defender to represent him. The matter was continued to July 7, 2008, at the request of the newly assigned assistant public defender. On July 7, 2008, K.T. again appeared with Gonzalez. Respondent recused himself. The case was assigned to another judge and eventually dismissed after the assigned judge granted defendant's motion to quash arrest and suppress evidence. The record before this court contains transcripts of eight of the cases in which respondent ordered K.T. to "stand down." In none of these cases did respondent make a record of the reason for his removal of K.T. Respondent states that in each case, the matter was continued to allow newly appointed defense counsel time to consult with the client and to prepare the case. On June 10, 2008, petitioner's motion for leave to file a petition for a writ of mandamus or a writ of prohibition was filed with this -4-

court. Thereafter, respondent recused himself from all matters assigned to K.T. According to Roe-Taylor's affidavit, these cases included "matters where he had presided over pre-trial motions, trials and matters of violation of probation, on which he was the sentencing judge." Further, the recusals "caused substantial delays to previously appointed clients' cases and representation." Because these actions effectively barred K.T. from appearing or practicing in respondent's courtroom, Roe-Taylor assigned her to another felony courtroom. According to Roe-Taylor's affidavit, the reassignment was "not due to any agreement with or request from" the presiding judge or respondent, but was "due to the continuing refusal by [respondent] to hear any cases involving [K.T.]" Respondent's affidavit states that K.T. was transferred from his courtroom to a different courtroom "pursuant to an agreement between the public defender's office and the Honorable Edmund Ponce de Leon, Presiding Judge of the Circuit Court of Cook County, Fourth Municipal District." He further states that petitioner's brief "discusses several instances in which I ordered [K.T.] to stand down and another assistant public defender assigned to my courtroom to represent a defendant because of my concerns over her ability to provide adequate representation to felony defendants." As noted above, however, the transcripts of eight such instances do not contain any indication of the nature of respondent's "concerns." Finally, respondent states that K.T. is the "only attorney I have ever directed to stand down from representing a client during my judicial career." The affidavit of the presiding judge states that "[b]ecause of concerns expressed to me by [respondent] and other judges about the ability of public defender [K.T.] to provide adequate representation to felony defendants, I met with officials of the public defender's office and they ultimately agreed to assign her to a different courtroom. [She] is no longer assigned to [respondent's] courtroom." However, K.T. is presently assigned to a felony courtroom. ISSUES PRESENTED The issues presented in the petition are whether respondent has the authority to refuse to allow an assistant public defender to represent clients in his courtroom, to remove an assistant public -5-

defender from representation of a defendant, or to assign a specific assistant public defender to represent a defendant in an individual case. MOOTNESS When intervening events preclude a reviewing court from granting effective relief to a complaining party, the matter is rendered moot. Felzak v. Hruby, 226 Ill. 2d 382, 392 (2007). Respondent argues that this case became moot when K.T. was assigned to another felony courtroom. His affidavit and the affidavit of the presiding judge aver that the reassignment was the result of an agreement with petitioner's office. Petitioner responds that the issues raised in his petition are not moot because no such agreement was reached. He relies on the statement in Roe-Taylor's affidavit that the reassignment of K.T. to another felony courtroom was not the result of an agreement to resolve the dispute. We conclude the conflicting accounts regarding the existence of an agreement are due to the different perspectives of the parties. Respondent's affidavit asserts that there was such an agreement, but he was not present at the meetings between the presiding judge and Roe-Taylor, so his assertion is not based on personal knowledge. The presiding judge likely perceives that he achieved a resolution acceptable to both parties when K.T. was reassigned. Roe-Taylor perceives that her reassignment of K.T. was merely an acquiescence to the status quo, pending resolution of the petition then pending before this court. We believe that under the circumstances, the reassignment of K.T. was a wise and proper use of the resources of the public defender's office and the Cook County circuit court and that it was in the best interests of the public served by all parties to this case. However, the reassignment of K.T. did not moot the underlying issue in this case

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