Brazas v. Ramsey

No. 2--96--1051

________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

WESLEY J. BRAZAS, JR., ) Appeal from the Circuit Court
) of Kane County.
Plaintiff-Appellant, )
)
v. ) No. 95--MR--256
)
)
KENNETH R. RAMSEY, Sheriff of )
the Kane County Sheriff's )
Department, ) Honorable
) Melvin E. Dunn,
Defendant-Appellee. ) Judge, Presiding.
________________________________________________________________

PRESIDING JUSTICE GEIGER delivered the opinion of the court:
The plaintiff, Wesley Brazas, Jr., appeals from the August 8,
1996, order of the circuit court of Kane County denying his motion
for attorney fees pursuant to the Illinois Freedom of Information
Act (the Act) (5 ILCS 140/11(i) (West 1994)). The plaintiff filed
the motion after he prevailed on his complaint to obtain copies of
recorded telephone conversations involving members of the Kane
County sheriff's department (the Sheriff's Department). The trial
court denied the motion, finding that the plaintiff was not
entitled to attorney fees because the Sheriff's Department had not
acted in bad faith in withholding the requested tapes. We affirm.
On May 15, 1995, the plaintiff made a written request,
pursuant to section 3 of the Act (5 ILCS 140/3 (West 1994)), to
obtain copies of certain taped telephone calls made into and out of
the Sheriff's Department on April 30, 1995. Specifically, the
plaintiff requested copies of the following recorded calls: (1) a
"911" call made by the plaintiff's former wife to the Sheriff's
Department at 2:00 a.m.; (2) a call made by the Sheriff's
Department to the plaintiff's father at 2:15 a.m.; (3) a call made
by the plaintiff to the Sheriff's Department at 3:00 a.m.; and (4)
a call made by the Sheriff's Department to the plaintiff at 3:30
a.m.
On June 1, 1995, the Sheriff's Department sent a letter to the
plaintiff denying his request. The letter explained that the
recordings were exempt from disclosure under the Act because their
release "would constitute a clearly unwarranted invasion of
personal privacy." The letter also explained that the recordings
could not be released because they contained "information revealing
the identity of persons who filed complaints with or provide[d]
information to investigative, law enforcement or penal agencies."
On June 13, 1995, the plaintiff sent a written appeal of this
denial to Kenneth Ramsey, the sheriff of Kane County. The
plaintiff never received a response to his written appeal.
On July 24, 1995, the plaintiff filed a pro se complaint to
obtain the tape recordings pursuant to section 11(a) of the Act (5
ILCS 140/11(a) (West 1994)). The complaint named Ramsey as the
defendant. On May 28, 1996, the plaintiff filed a motion for
summary judgment arguing that the Sheriff's Department had no valid
basis for withholding the taped recordings. The plaintiff
requested that the Sheriff's Department be compelled to release the
tape recordings and that he be reimbursed for his attorney fees in
prosecuting the action.
In response to the motion, the defendant argued that the
requested recordings were exempt from disclosure pursuant to
sections 7(1)(b) and 7(1)(c)(vii) of the Act (5 ILCS 140/7(1)(b),
7(1)(c)(vii) (West 1994)). These provisions provide that
disclosure is not required in those instances where such disclosure
will result in an unwarranted invasion of personal privacy (5 ILCS
140/7(1)(b) (West 1994)) or will endanger the life or physical
safety of any person (5 ILCS 140/7(1)(c)(vii) (West 1994)). The
defendant argued that the relationship between the plaintiff and
his former wife was tense and hostile and that the disclosure of
the recordings might escalate the situation and endanger someone's
physical safety. In support of this position, the defendant
submitted the affidavit of Commander John Marszalek, an officer
with the Sheriff's Department.
On August 8, 1996, the trial court conducted a hearing on the
plaintiff's motion for summary judgment. At the hearing, the
defendant's attorney indicated that the Sheriff's Department was
willing to release the requested recordings to the plaintiff. The
recordings were then tendered to the plaintiff in open court. At
this time, the plaintiff renewed his motion for attorney fees
pursuant to section 11(i) of the Act (5 ILCS 140/11(i) (West
1994)). The trial court denied the motion, finding that the
Sheriff's Department had acted in good faith in withholding the
tapes. The trial court explained its ruling as follows:
"I f[ind] that the Sheriff acted in good faith, and that the
reasons presented [for denying the request] were reasonable,
and that upon the matter being brought before the Court, the
Sheriff responded promptly.
There was a reasonable concern for the safety of others.
Frankly, I see that just in your demeanor before me, Mr.
Brazas, you are sitting here as a time bomb ready to explode.
That's why you have security in this courtroom."
The trial court proceeded to enter an order granting the
plaintiff's motion for summary judgment as to the disclosure of the
recordings and denying the motion as to the request for attorney
fees. The plaintiff filed a timely pro se notice of appeal.
Prior to reaching the merits of the plaintiff's arguments on
appeal, we must initially address two motions which have been taken
with the case. The plaintiff has filed a motion seeking to strike
the statement of facts in the defendant's brief. The plaintiff
argues that the defendant has not stated the facts accurately and
has also failed to support his statements with citations to the
record. See 155 Ill. 2d R. 341(e)(6). The defendant has also
filed a motion to strike, requesting that we strike certain
arguments in the plaintiff's brief which either fail to raise
reviewable issues or are moot.
Although we find that both parties have failed to comply with
the applicable supreme court rules governing the content and form
of appellate briefs, the briefs are nonetheless sufficient to allow
us to review the merits of the appeal. See Taake v. WHGK, Inc.,
228 Ill. App. 3d 692, 714 (1992). We therefore deny both motions
and will instead disregard any inappropriate materials or argument.
See Kincaid v. Smith, 252 Ill. App. 3d 618, 621 (1993).
The plaintiff's first contention on appeal is that the trial
court erred in denying his request for attorney fees pursuant to
section 11(i) of the Act (5 ILCS 140/11(i) (West 1994)). That
section provides:
"If a person seeking the right to inspect or receive a
copy of a public record substantially prevails in a proceeding
under this Section, the court may award such person reasonable
attorneys' fees if the court finds that the record or records
in question were of clearly significant interest to the
general public and that the public body lacked any reasonable
basis in law for withholding the record." 5 ILCS 140/11(i)
(West 1994).
The plaintiff argues that he substantially prevailed in his
action and is therefore entitled to attorney fees under the Act.
He argues that he has advanced the interests of the general public
by bringing the Sheriff's Department into compliance with the
disclosure requirements of the Act. He also asserts that the
Sheriff's Department lacked a reasonable legal basis for
withholding the recordings.
As noted above, in denying the plaintiff's request for
attorney fees, the trial court found that the Sheriff's Department
had reasonably withheld the recordings out of a concern for the
safety of others. On review, we will not overturn the trial
court's factual determinations unless they are against the manifest
weight of the evidence. First Midwest Bank v. Denson, 205 Ill.
App. 3d 124, 128 (1990). A factual determination is against the
manifest weight of the evidence only where the opposite conclusion
is clearly evident or where the determination is unreasonable,
arbitrary, and not based on the evidence presented. Denson, 205
Ill. App. 3d at 128-29.
After a careful review of the record, we do not find that the
trial court's determination was against the manifest weight of the
evidence. The record reveals that, at the time of this litigation,
the plaintiff and his former wife had been through a difficult
divorce and custody proceeding. All of the subject telephone
conversations were initiated when the plaintiff's former wife made
a "911" call to complain about the plaintiff's conduct. Although
we are not aware of the specific content of this call, it
nonetheless seems apparent that the plaintiff's former wife
believed she was in need of police assistance at the time she
placed the call. In light of this factual background, we agree
with the trial court's determination that it was reasonable for the
Sheriff's Department to withhold the recordings in order protect
the safety of others. See 5 ILCS 140/7(1)(c)(vii) (West 1994).
We additionally note that the "911" call to the Sheriff's
Department would also be exempt from disclosure pursuant to section
7(1)(b)(v) of the Act (5 ILCS 140/7(1)(b)(v) (West 1994)). That
section prohibits the disclosure of records which reveals "the
identity of persons who file complaints with or provide information
to *** law enforcement *** agencies." 5 ILCS 7(1)(b)(v) (West
1994). Such records are exempt from disclosure under the Act
absent written consent of the individual making the statement. See
generally Staske v. City of Champaign, 183 Ill. App. 3d 1, 4-5
(1989).
Moreover, even if the Sheriff's Department did not have a
reasonable legal basis for withholding the recordings, the
plaintiff would still not be entitled to collect attorney fees for
the simple reason that he did not incur any such fees. See Hamer
v. Lentz, 132 Ill. 2d 49, 61-63 (1989). In Hamer, our supreme
court determined that a pro se attorney "substantially prevailing"
in an action under the Act was not entitled to collect attorney
fees. The supreme court explained its reasoning as follows:
"[A]s we have explained, the legislative history of the
Illinois fee provision shows that the purpose of the provision
is to ensure enforcement of the [Act]. This is accomplished
by removing the burden of legal fees, which might deter
litigants from pursuing legitimate *** actions [under the
Act]. We do not think the provision was intended as either a
reward for successful plaintiffs or as a punishment against
the government. [Citation.] A lawyer representing himself or
herself simply does not incur legal fees. Thus legal fees do
not present a barrier to a pro se lawyer seeking to obtain
information.
Second, we think it is self-evident that one of the goals
of the Illinois fee provision is to avoid unnecessary
litigation by encouraging citizens to seek legal advice before
filing suit. [Citation.] We agree *** that the lack of
objectivity that results from self-representation will not
further this goal." Hamer, 132 Ill. 2d at 61-62.
Although the Hamer court declined to consider whether its ruling
was also applicable to nonlawyer pro se litigants, the court did
note that, "with the exception of the Court of Appeals for the
District of Columbia, all of the circuit court of appeals that have
considered the question have held that a nonlawyer pro se litigant
is not entitled to fees" under the federal Freedom of Information
Act (5 U.S.C.A. 552 (West 1996)). Hamer, 132 Ill. 2d at 58,
citing Aronson v. United States Department of Housing & Urban
Development, 866 F.2d 1, 4 (1st Cir. 1989).
In reliance upon the principles articulated in Hamer, we
conclude that nonlawyer pro se litigants are also barred from
collecting attorney fees under section 11(i) of the Act. We find
no appreciable difference between a lawyer and a nonlawyer
representing himself in a pro se complaint under the Act; in either
case, neither litigant incurs any legal fees in the prosecution of
his action. See Hamer, 132 Ill. 2d at 62; Aronson, 866 F.2d at 4.
Moreover, such a rule will further the Act's goal of avoiding
unnecessary litigation by encouraging citizens to seek legal advise
prior to filing suit. Hamer, 132 Ill. 2d at 62. As the plaintiff
herein represented himself throughout the proceeding, he did not
incur any attorney fees which can be reimbursed. Therefore, we
conclude that the trial court properly denied his motion for
attorney fees under the Act.
The plaintiff's second argument on appeal is that the trial
judge should have disclosed his personal "relationship" to the
defendant and disqualified himself from presiding over this case.
Specifically, the plaintiff complains that, at the time this
litigation was pending, the defendant served as the chairman of the
"16th Circuit Judges Retention Committee." The purpose of this
committee was to advocate the retention of six circuit court judges
in the 16th Judicial Circuit during the 1996 general election.
Although the trial judge in the instant case was not one of the six
judges seeking retention, the plaintiff nonetheless argues that the
judge was incapable of being impartial. This argument is without
merit.
Supreme Court Rule 63(C)(1)(a) requires a trial judge to
disqualify himself when his impartiality may be reasonably
questioned due to his personal bias in favor of one of the parties.
155 Ill. 2d R. 63(C)(1)(a). In order to secure a new trial due to
a trial judge's failure to disqualify himself, the moving party
bears the burden of demonstrating that he has suffered actual
prejudice. In re Marriage of Click, 169 Ill. App. 3d 48, 52-53
(1988).
We do not believe that the trial judge in the instant case was
under any obligation to disclose his "relationship" to the
defendant or to disqualify himself. We can discern no reason why
the trial judge would be unable to fairly preside over this case
merely because the defendant served as the chairman of the
committee to retain other circuit court judges. See generally
People v. McLain, 226 Ill. App. 3d 892, 902-04 (1992). Indeed, it
would seem that the trial judge herein was the appropriate
individual to hear the case as he was not one of the circuit court
judges seeking retention. Furthermore, we fail to see how the
plaintiff has suffered any actual prejudice as he was ultimately
successful in obtaining the recordings he sought; as already
determined, the plaintiff was not entitled to collect attorney fees
due to his pro se status.
The plaintiff's next argument on appeal is that the trial
court erred in refusing to strike the affidavit of Commander John
Marszalek, which was proffered in response to the plaintiff's
motion for summary judgment. The plaintiff argues that the
affidavit is without foundation and is conclusory. See 145 Ill. 2d
R. 191(a). We decline to reach the merits of this argument as we
find that it is moot. See In re Estate of Wellman, 174 Ill. 2d 335, 353 (1996). Regardless whether it was appropriate for the
trial court to consider the affidavit, the plaintiff has already
secured a court order requiring the Sheriff's Department to release
the requested recordings. Therefore, there is nothing for the
plaintiff to gain by having the affidavit stricken. We
additionally note that, for the reasons already stated, the
affidavit was not relevant in making the determination that the
plaintiff was not entitled to attorney fees.
The plaintiff's final argument on appeal is that Supreme Court
Rule 63 (155 Ill. 2d R. 63) is unconstitutional. As the plaintiff
failed to raise this issue below, we decline to consider it on
appeal. See In re Liquidations of Reserve Insurance Co., 122 Ill. 2d 555, 568 (1988).
For the foregoing reasons, the judgment of the circuit court
of Kane County is affirmed.
Affirmed.
INGLIS and McLAREN, JJ., concur.