Dan Webb Response (March 21, 2016)

8/19/2019 Dan Webb Response (March 21, 2016)

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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CRIMINAL DIVISION

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)

))

IN RE APPOINTMENT OF SPECIAL PROSECUTOR ) No. 2011 Misc. 46

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) The Honorable

) Michael P. Toomin

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OFFICE OF THE SPECIAL PROSECUTOR’S RESPONSE IN OPPOSITION TO

THE CITY OF CHICAGO’S MOTION TO MODIFY ORDERS ENTEREDBY THE COURT ON JUNE 14, 2012 AND JUNE 25, 2014

Pursuant to the Court’s February 29, 2016 email inviting responses from all parties

noticed on the City of Chicago’s (“the City”) Motion to Modify Orders Entered by the Court on

June 14, 2012 and June 25, 2014 (“Motion to Modify”), the Office of the Special Prosecutor

(“OSP”) hereby submits a brief response opposing the relief sought by the City.1

BACKGROUND

Under this Court’s April 23, 2012 order appointing a Special Prosecutor in this matter,

the OSP is vested with the same powers, authority and responsibilities as the elected State’s

Attorney of Cook County (limited only by the subject matter of the investigation). Such core

prosecutorial responsibilities include ensuring the maintenance of what is commonly referred to

as “grand jury secrecy.” Indeed, as the Court itself has previously noted, the secrecy of

proceedings before grand juries is essential to the proper functioning of the grand jury system

1 By offering its position here, the OSP expressly reserves (and does not waive) any and all rights

to challenge in future proceedings any and all aspects of all of Judge Mikva’s rulings in Better

Gov’t Ass’n v. Office of the Special Prosecutor , 15 CH 4183.


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and is expressly embodied in Illinois law. See 725 ILCS 5/112–6. The OSP has worked

tirelessly since its appointment in April 2012 to ensure that that cornerstone principle has been

adhered to—not only before this Court, but in separate judicial venues.

In furtherance of its statutory duty to safeguard grand jury material from improper

disclosure, see 725 ILCS 5/112–6(b), the OSP successfully moved this Court to place all grand

jury material under seal. See Motion to Modify, Ex. D, Order of June 14, 2012, at 1 (the “2012

Order”). This Court entered the 2012 Order “to protect the sanctity of the investigation of the

[OSP] and the work of the special grand jury.” Motion to Modify, Ex. E, Order of June 25,

2014, at 4 (the “2014 Order”). Specifically, the 2012 Order placed under seal “all Grand Jury

materials, including but not limited to subpoenas, target letters, and other correspondence related

to the service of a Grand Jury Subpoena, sent by the [OSP] to any individual or entity in

connection with this investigation.” Motion to Modify, Ex. D (2012 Order), at 1. It specifically

provides that it applies to “[a]ny individual[] or entit[y] who receive[s] Grand Jury materials

from the [OSP] . . . .” Id.

After the Chicago Sun-Times submitted a FOIA request to the City in 2014 seeking

“copies of all subpoenas city officials received from [the OSP]” and “all documents and records

provided to [the OSP],” this Court issued the 2014 Order, specifically prohibiting the City from

complying with that request. Motion to Modify, Ex. E (2014 Order), at 2, 5. The 2014 Order

held that the City could not comply with any FOIA request that “ident[ified]” or

“characterize[ed]” documents as having been “disseminated to the [OSP] in furtherance of its

investigation into the death of David Koschman.” Id. at 5.

The City later received and denied another FOIA request, this time from the Better

Government Association (“BGA”), seeking essentially the same documents that the Chicago


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Sun-Times had previously sought, again identifying and characterizing the documents requested

as being related to the investigation of the death of David Koschman. City’s Motion to Modify,

Ex. H (BGA Complaint), at Ex. C. The BGA also filed a FOIA request directly to the OSP,

which the OSP denied. The BGA subsequently filed a complaint against particular City

departments and the OSP in the Chancery Division of the Circuit Court of Cook County,

claiming its FOIA requests had been improperly denied. Both the OSP and the City moved to

dismiss. The court granted the OSP’s motion in its entirety, but denied the City’s, ruling that this

Court’s 2012 Order and 2014 Order (jointly, the “Protective Orders”) did not provide the City a

valid reason to withhold the documents the BGA requested. See City’s Motion to Modify, Ex.

A.

The City, feeling perhaps as if between a proverbial rock and a hard place, filed the

instant motion, seeking this Court’s permission to disseminate protected grand jury materials to

the BGA.

ARGUMENT

This Court should deny the City’s request for relief from the Protective Orders for two

reasons. First , this Court already held that the documents the City seeks to turn over to the BGA

are grand jury materials, prohibited from disclosure, for good reason, by Illinois law and

centuries of American jurisprudence. This Court previously identified—at the City’s urging—

the Douglas Oil standard as the proper framework to determine when such material may be

disseminated. See infra at 5. The City fails to satisfy Douglas Oil . Second , even if the City’s

proposed standard—related to modifying injunctions—applies, the City fails to meet it.


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A. The City Seeks To Disclose Grand Jury Material, But Fails To Satisfy The

Douglas-Oil Standard.

It is undeniable that the secrecy of proceedings before grand juries is essential to the

proper functioning of the grand jury system and is expressly embodied in Illinois law. See, e.g.,

City’s Motion to Modify, Ex. I. (OSP Memo in support of Motion to Dismiss), Ex. 1 (Order of

November 4, 2014) at 6 (“Proceedings before grand juries are cloaked in secrecy for important

and practical reasons, including . . . ensuring free deliberations of that body, . . . encouragement

of candor and disclosure by witnesses, and protection of the innocent from unwarranted

exposure.”). Compromising the secrecy of grand jury proceedings would make “prospective

witnesses . . . hesitant to come forward voluntarily, knowing that those against whom they testify

would be aware of that testimony,” and thus “witnesses who appeared before the grand jury

would be less likely to testify fully and frankly, as they would be open to retribution as well as to

inducements.” Douglas Oil Co. of California v. Petrol Stops Nw., 441 U.S. 211, 219 (1979).

The City’s Motion to Modify seeks to depart from the “precedent and tradition instruct[ing] that

maintaining the secrecy of proceedings before grand juries is essential to the proper functioning

of the grand jury system.” City’s Motion to Modify, Ex. I. (OSP Memo in support of Motion to

Dismiss), Ex. 1 (Order of November 4, 2014) at 5.2

Significantly, this Court already determined , when it issued the 2014 Order, that the

materials the City seeks to disseminate constitute protected grand jury materials. As noted

above, the 2014 Order arose when the City was served with an essentially identical FOIA request

by the Chicago Sun-Times. Compare Motion to Modify, Ex. E (2014 Order), at 2, with Motion

to Modify, Ex. H (BGA Complaint), at 4–5. Critically, the current FOIA request, just like the

2 Additional discussion of grand jury secrecy in American (and Illinois) jurisprudence can be

found in the OSP’s May 8, 2015 Motion to Dismiss. See City’s Motion to Modify, Ex. I, at 6–7;

see also OSP’s Sep. 15, 2014 Response to Taylor Petition at 6–7.


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2014 FOIA request, “specifically [seeks] records produced to the OSP . . . .” Motion to Modify,

¶ 14; Ex. E (2014 Order), at 3 (“[The FOIA] request is tied by its very terms to the subpoena

issued by the Office of the Special Prosecutor and essentially seeks to learn what took place

before the Special Grand Jury.”) (citing Bd. of Educ. v. Verisario, 143 Ill. App. 3d 1000, 1008

(2d Dist. 1986)). Indeed, the BGA’s current FOIA request unequivocally “seeks to learn what

took place before the Special Grand Jury.” City’s Motion to Modify, Ex. E (2014 Order), at 3. It

is beyond doubt that granting the City’s motion would give the BGA access to the grand jury this

Court previously and correctly held the public is not permitted to have. At bottom, nothing

presented to this Court in the instant matter trumps the importance of maintaining grand jury

secrecy as outlined in Verisario.

Once it is established that a party seeks disclosure of protected grand jury material, the

inquiry becomes “whether disclosure is required in the interests of justice,” which is assessed

using the “three-prong particularized need test” articulated in Douglas Oil , 441 U.S. at 219. This

Court thus got it exactly right in its November 4, 2014 order 3 denying Petitioner Daniel Taylor’s

request for disclosure of Special Grand Jury materials to aid the prosecution of his civil claims:

[I]t is well established that [] parties seeking access to materials under

Rule 6(e) must meet the long-standing standard articulated in Douglas Oil

Co., 441 U.S. at 222, 99 S. Ct 1667, 60 L. Ed. 2d at 167, by showing: (1)

the material they seek is needed to avoid a possible injustice in another judicial proceeding; (2) the need for disclosure is greater than the need for

continued secrecy; and (3) the request is structured to cover only material

so needed. This standard has been recognized [in] Illinois as well.Verisario, 143 Ill. App. 3d at 1009, 403 N.E.2d at 360….

3 The City was a non-party respondent in that matter, submitted briefs and participated in oral

argument before this Court in opposition to Petitioner Taylor’s request, where it advocated for

and adopted the Douglas Oil standard set forth herein.


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City’s Motion to Modify, Ex. I. (OSP Memo in support of Motion to Dismiss), Ex. 1 (Order of

November 4, 2014) at 8–9. The City’s motion does not articulate an argument under this

standard, presumably because it knows it fails, at a minimum, the very first prong.

Indeed, there is no “[]other judicial proceeding” where “the material [the City] seek[s] is

needed to avoid a possible injustice . . . .” Id. At bare minimum, the City’s predicament of being

caught between conflicting orders cannot qualify as a Douglas Oil “injustice” because the City

concedes that “the conflict between Judge Mikva’s order and the Protective Orders could be

resolved through appellate review of Judge Mikva’s order.” Motion to Modify, ¶ 41.

B.

Illinois Injunction Law Also Prohibits Modifying The Protective Orders.

The City contends that modifying the Protective Orders is subject to the same inquiry as

modifying an injunction. Motion to Modify, at 7, ¶¶ 29, 30. Even if the City’s proposed

standard were the correct one,4 the City fails to meet it.

Trial courts can modify their own injunctions only when the facts (or law) that led them

to issue the injunction have materially changed—such facts are often referred to as the

“controlling” or “applicable” facts. See Am. Inst. of Real Estate Appraisers of Nat. Ass’n of

Realtors v. Nat’l Real Estate Ass’n, Inc., 191 Ill. App. 3d 867, 871 (1st Dist. 1989) (reversing

court’s finding that it lacked jurisdiction to modify injunction where defendant “attempted to

show a change in the very facts . . . which underlie the permanent injunction”); Sola v. Roselle

Police Pension Bd., 2012 IL App (2d) 100608, ¶ 13 (“A trial court’s jurisdiction [to modify an

injunction], however, is limited to determining whether changes in the applicable law or facts

since the rendition of the judgment warrant a modification of the injunction’s terms.”) (emphasis

added); Bundy v. Church League of Am., 125 Ill. App. 3d 800, 807 (2d Dist. 1984) (reversing

4 For the instant matter, the OSP takes no position on whether Illinois law about modifying

permanent injunctions is the proper framework to assess whether the City should be granted the

relief it seeks.


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trial court’s modification of injunction because it was “not based upon changes . . . in the

controlling facts”); Field v. Field , 79 Ill. App. 2d 355, 359 (3d Dist. 1967) (“Where the grounds

and reasons for which the injunction was granted no longer exist, by reason of changed

conditions, it may be necessary to alter the decree to adapt it to such changed conditions, or to set

it aside altogether, as where there is a change in the controlling facts on which the injunction

rests . . . .”) (emphasis added).

The City’s motion identifies two controlling facts that led to the issuance of the 2012

Order which have since changed: “the completion of the OSP’s investigation and the conclusion

of the prosecution of Richard Vanecko . . . .” Motion to Modify, ¶ 41. The problem for the City

is that both of those facts had already changed when this Court issued the 2014 Order, which

held that the 2012 Order “remain[ed] in full force and effect . . . .” City’s Motion to Modify, Ex.

E (2014 Order), at 5. This Court correctly held then that the prosecution’s end and

investigation’s conclusion did not warrant lifting the Protective Orders, see Douglas Oil Co., 441

U.S. at 222 (noting that particularized need showing, discussed supra at 5, “must be made even

when the grand jury . . . has concluded its operations”), so those same facts do not now warrant

lifting them.

The OSP can think of no other controlling facts which have changed since the Court’s

issuance of the 2012 Order that would warrant modifying or dissolving them. Indeed, the

systemic interest in protecting the secrecy of what transpired before the grand jury remains

unchanged—that interest was a controlling fact underlying the Protective Orders, rooted in

Illinois law. See Verisario, 143 Ill. App. 3d at 1007 (noting grand jury secrecy “preserve[s] the

freedom and integrity of the deliberative process”); City’s Motion to Modify, Ex. I. (OSP Memo

in support of Motion to Dismiss), Ex. 1 (Order of November 4, 2014) at 5–8. The City’s interest


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in avoiding a contempt finding related to Judge Mikva’s 2015 Order compelling the City to

produce certain grand jury materials simply does not tip the “equities” in favor of disclosing the

grand jury materials at issue because the enduring interest in secrecy is so great. See Motion to

Modify, ¶ 32. Judge Mikva’s 2015 Order simply has no impact on the need for the secrecy of

grand jury proceedings. Modifying or dissolving the Protective Orders is thus uncalled for under

Illinois injunction law. E.g., Bundy, 125 Ill. App. 3d at 807 (holding trial court could not

dissolve injunction where there had been no change in “controlling facts on which the injunction

rests”).


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Dan Webb Response (March 21, 2016)

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Transcript of Dan Webb Response (March 21, 2016)