Kluppelberg v. Burge et al
Filing
227
Opinion and Order Signed by the Honorable Joan H. Lefkow on 3/24/2015: Motion of Defendant City of Chicago to bar reference to plaintiff's 735 ILCS 5/2-702 certificate 187 is denied.Mailed notice(mad, )
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES KLUPPELBERG,
Plaintiff,
v.
JON BURGE, et al.,
Defendants.
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Case No. 13 C 3963
Judge Joan H. Lefkow
OPINION AND ORDER
Defendant City of Chicago has moved to bar reference to plaintiff James Kluppelberg’s
certificate of innocence (“COI”) obtained under what will be referred to as “the Statute,” 735 Ill.
Comp. Stat. 5/2-702, which facilitates a wrongly convicted individual to obtain remedial
compensation from the State of Illinois. For reasons stated herein, the motion will be denied.
I.
BACKGROUND FACTS
The facts necessary to resolve this motion in limine are undisputed. In 1989, Kluppelberg
was convicted of arson and murder in connection with a 1984 fire in Chicago. He was sentenced
to life in prison. After the State moved to dismiss the charges against Kluppelberg by nolle
prosequi in 2012, the Cook County Circuit Court vacated his conviction and released him from
prison. (See dkt. 202, ex. C.) After his release, Kluppelberg applied for a COI under the Statute.
The Circuit Court of Cook County granted his application on August 5, 2013. (See dkt. 188, ex.
T.) The Illinois Court of Claims also ordered the State of Illinois to pay Kluppelberg $213,624,
the maximum compensation he was entitled to under 705 Ill. Comp. Stat. 505/8(c). (See id., ex.
U.) Kluppelberg then filed this suit for malicious prosecution and deprivation of due process
under 42 U.S.C. § 1983 against the City of Chicago (“the City”) and certain Chicago police
detectives and arson investigators. The City moved in limine to bar reference to Kluppelberg’s
COI in this suit.
II.
LEGAL FRAMEWORK
A.
735 Ill. Comp. Stat. 5/2-702
The Statute, enacted in 2008, allows a person whose conviction is set aside to seek a COI
from the court that convicted him. To obtain the certificate, a petitioner must prove by a
preponderance of the evidence that (1) he was convicted of a felony and was sentenced to and
served a term of imprisonment, (2) the conviction was reversed or vacated or was
unconstitutional, (3) he is innocent of the offenses charged, and (4) he did not bring about his
own conviction. 735 Ill. Comp. Stat. 5/2-702(g). Illinois courts have interpreted the Statute to
require that the petitioner be found “actually innocent” rather than “not guilty.” See, e.g. Rudy v.
People, 984 N.E.2d 540, 597, 2013 IL App (1st) 113449, 368 Ill. Dec. 594 (2013). A petitioner
who receives a COI under the Statute is entitled to compensation in the Court of Claims. See
705 Ill. Comp. Stat. 505/8(c).
B.
Precedent
The parties have cited two cases in which this court has directly considered the
admissibility in a subsequent civil rights suit of a COI or the fact that a COI was denied. 1
In Logan v. Burge, No. 09 C 5471 (N.D. Ill. filed Sept. 3, 2009), the court denied the
defendants’ request to bar reference to the plaintiff’s COI. Order at 1, id., ECF Dkt. No. 423
1
Kluppelberg also cites to Jimenez v. City of Chicago, Case No. 09 C 8081 (N.D. Ill. filed Dec.
31, 2009), but, even with some independent research, the court could find no direct objection to or
discussion of the admissibility of the COI. It appears the defendants only requested that they be able to
argue that the plaintiff sought the certificate solely to recover compensatory damages. See Transcript of
Proceedings (Dec. 7, 2011) at 1916-17, Jimenez, ECF No. 361. Similarly, the parties cite cases in which
courts have considered the issuance of a COI as support for the “indicative of innocence” element of a
malicious prosecution claim. See, e.g, Patterson v. Dorrough, No. 10 C 1491, 2012 WL 5381328, at *5
(N.D. Ill. Oct. 31, 2012). Although these cases are instructive regarding the certificate’s relevance, they
do not directly address the admissibility of the COI.
2
(Oct. 19, 2012) (“Logan Order”). The court found the certificate “relevant at least to the
‘indicative of innocence’ element of plaintiff’s malicious prosecution claim, as well as to his
damages.” Id. It concluded that it was able to take judicial notice of the certificate’s issuance
and that it fell within the scope of the public records exception to the hearsay rule. Id. at 2, citing
United States v. Jones, 29 F.3d 1546, 1553 (11th Cir. 1994). 2 Finally, the court rejected the
defendants’ contention that the certificate’s admission would result in unfair prejudice, citing to a
comparable case dealing with admission of a governor’s pardon. Id. at 2 (citing Newsome v.
McCabe, No. 96 C 7680, 2002 WL 548725, at *6 (N.D. Ill. Apr. 4, 2002) (ruling on motion for
new trial that § 1983 plaintiff’s pardon was correctly admitted because exclusion would have
misled the jury).
A different judge of the court addressed a similar question in Fields v. City of Chicago,
No. 10 C 1168, (N.D. Ill. filed Feb. 22, 2010), where the state court had denied the plaintiff’s
application for a COI. The defendants argued that the denial precluded the plaintiff from
pursuing his malicious prosecution claim because he could not prove that the underlying criminal
proceedings were terminated in his favor. Order on Motions Concerning Certificate of
Innocence Proceeding at 2-3, id., ECF No. 551 (Mar. 10, 2014) (“Fields Order”). The court
rejected this argument, finding no authority to suggest that an unsuccessful COI petition
precludes a plaintiff from proving favorable termination of the underlying criminal proceeding.
Id. As part of its ruling, the court barred all evidence relating to the COI application at the
liability phase of trial, citing two reasons pertinent here. Id. at 3. First, the denial of the
certificate was not relevant to whether the criminal proceedings were terminated in the plaintiff’s
2
Jones stated that “a court may take notice of another court's order only for the limited purpose of
recognizing the ‘judicial act’ that the order represents or the subject matter of the litigation.” It ruled that
it was error to notice judicial findings of fact made in another case involving the same parties where the
findings did not indisputably establish the fact sought to be judicially noticed. Jones also rejected the
argument that the public records exception of Rule 803(8) applied to judicial findings or judgments.
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favor because the plaintiff was found not guilty at re-trial. Id. Second, the court could not take
judicial notice of the denial of the certificate “because judicial notice cannot be used to end-run
the requirements of issue preclusion.” Id. The court did not rule on whether the certificate could
be admitted during the damages phase of the trial but stated that, if it were admissible at that
time, none of the state court judge’s underlying findings from the COI proceeding could be
admitted. Id.
III.
ANALYSIS
The City raises three arguments in support of their motion to bar reference to
Kluppelberg’s COI: (1) that subsection (j) precludes use of the certificate in subsequent
lawsuits; (2) that the COI is inadmissible hearsay; and (3) that introduction of the COI will
violate the defendants’ due process rights.
A.
The Statute
The statute does not bar evidentiary use of the certificate. Subsection (j) states that “[t]he
decision to grant or deny a [COI] shall be binding only with respect to claims filed in the Court
of Claims and shall not have a res judicata effect on any other proceedings.” 735 Ill. Comp.
Stat. 5/2-702(j). The City interprets this provision to mean that a COI cannot be referenced in
any subsequent proceeding. (See dkt. 188 at 5 (“[T]he statutory text expressly prohibits use of a
judgment under § 5/2-702 in any subsequent suit outside the Court of Claims.”).)
Had the Illinois legislature intended to bar evidentiary use of the certificate in later
proceedings, it could have expressly done so. Compare, e.g., 820 Ill. Comp. Stat. 405/1900(B)
(“No finding . . . issued pursuant to this Act shall be admissible or used in evidence in any action
other than one arising out of this Act.”); 725 Ill. Comp. Stat. 5/108-12 (“The decision of the
court upon this hearing shall not be admissible as evidence in any other proceeding nor shall it be
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res judicata of any question in any other proceeding.”). The City suggests that the Statute does
not explicitly preclude introduction of the certificate because civil judgments are generally
inadmissible in subsequent proceedings under the rule against hearsay. Possibly members of the
legislature were sufficiently keen on the rules of evidence to have reasoned on this basis. But
where the evidentiary use of a COI in a civil rights case was raised in the legislative debate and
the bill passed without the bar, the court concludes that the maxim inclusio unius est exclusio
alterius applies.
B.
Relevance
Kluppelberg argues that the COI is relevant to an element of malicious prosecution, that
the proceedings were terminated in his favor, that it is relevant to his due process claim that
withheld evidence was material to his wrongful conviction, and that it is relevant to damages.
Both parties seem to assume that whether Kluppelberg was in fact guilty is relevant to
whether the proceedings were terminated in his favor, such that if the jury were to be persuaded
that he actually did commit the crime, he would fail this element of proof. The judgment of
conviction was vacated and expunged. Kluppelberg was released from prison. As indicated in
Fields, evidence of actual guilt is irrelevant to this issue. The parties should stipulate that the
proceedings were terminated in Kluppelberg’s favor.
Whether the COI is relevant to show that the withheld evidence was material is not as
straightforward because there is no indication on the certificate that withholding of evidence bore
on the determination that a COI could issue. 3 In Newsome, however, the plaintiff similarly
3
Kluppelberg explains, “The higher standard of proof in the criminal trial compared with the COI
proceeding only underscores the strength of [the withheld] evidence—if the formerly withheld evidence
caused the trier of fact to conclude that a criminal defendant was innocent under a lower preponderance of
the evidence standard, that evidence was likely sufficient to create a reasonable doubt that the defendant
was guilty.” (Dkt. 202 at 10.) This argument is speculative at best.
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claimed that the defendant officers withheld material exculpatory evidence in violation of his due
process right to a fair trial. See 256 F.3d. 747 (7th Cir. 2001) (interlocutory appeal of denial of
qualified immunity). The district court ruled on a motion for new trial that it had been proper to
admit the plaintiff’s pardon because excluding it would have sent the message that the issue was
whether the plaintiff was guilty (rather than whether the defendants withheld material evidence).
2002 WL 548725 at *6. 4 As in Newsome, the COI may be relevant to neutralizing potential
unfair prejudice to the plaintiff.
Finally, the COI is relevant to damages because a jury may award damages based in part
on whether Kluppelberg is actually innocent. See Parish v. City of Elkhart, Ind., 702 F.3d 997,
1003 (7th Cir. 2012) (reversing for new trial where court excluded evidence of innocence and
minimal damages indicated that jury believed the plaintiff had been guilty). In the damages
phase of the trial the certificate could be very significant, as illustrated by Parish, if as
anticipated the defense plans to minimize damages by showing evidence that Kluppelberg
committed the crime.
C.
Hearsay
The City argues that introduction of the COI would violate the rule against hearsay.
Kluppelberg responds that the certificate is not hearsay and, even if it is, it falls within the public
records exception to the hearsay rule or may be judicially noticed. The circuit court’s findings of
fact cannot be judicially noticed because the fact of innocence is subject to reasonable dispute.
See Fed. R. Ev. 201(b)(2); Jones, supra n. 2.
4
“The issue in this case was not . . . whether Newsome was guilty or innocent of the crime. But
that is what it would have become if the fact of Newsome's innocence—and it was a fact once he was
pardoned, see People v. Chiappa, 368 N.E.2d 925, 926 (Ill.App.Ct.1977) (stating that “the guilt of the
defendant is absolved by pardon . . . where the same states that it is based upon the innocence of the
defendant”)—had been kept from the jury. Excluding that evidence would have been highly prejudicial
to Newsome. It would have invited the jurors to draw the impermissible inference that he was actually
guilty, and, thus, absolve defendants of any misconduct.”
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There is authority, however, supporting admitting the finding of innocence under the
public record exception of Rule 803(8), on which the court in Logan relied in part. In general,
judicial findings of facts do not fall within the public record exception of that rule. See, e.g.,
Nipper v. Snipes, 7 F.3d 415, 417 (4th Cir. 1993); Cardinal v. Buchnoff, No. 06 CV 0072, 2010
WL 3339509, at *2 (S.D. Cal. Aug. 23, 2010). This principle was acknowledged in Greycas,
Inc. v. Proud, 826 F.2d 1560, 1567 (7th Cir. 1987), stating that “civil judgments are said not to
be usable in subsequent proceedings as evidence of the facts underlying the judgment; for as to
those facts, the judgment is hearsay.” In Greycas, however, the court questioned the soundness
of the rule and upheld the trial court’s admission of a state court judgment determining the
priority of liens as “some evidence of the degree to which [the defendant’s] misconduct injured
[the plaintiff].” Id. 5 This is certainly analogous to Kluppelberg’s argument that his injury
included the need to apply for and obtain the COI.
There are other such instances within this circuit, as well, in which judicial findings have
been admitted under Rule 803(8). See, e.g., United States v. Lechuga, 975 F.2d 397, 398399 (7th Cir.1992) (holding hearsay in court order setting conditions of release, appearance
bond, and minutes from several court proceedings admissible under Rule 803(8)); Select
Creations, Inc. v. Paliafito America, Inc., 852 F. Supp. 740, 744 (E.D. Wis. 1994)
(arrest warrant admitted under Rule 803(8)); In re Maurice, 138 B.R. 890, 894 (N.D. Ill. 1992)
(state court factual findings admissible under Rule 803(8)(C) to demonstrate nondischargeability
of debt because of fraud). Because the application for the COI is part of the narrative of this case
and because the Seventh Circuit in Graycas opened the door to expansion of admissibility of
5
The court reasoned, “Since judgments are often given conclusive effect in subsequent litigation,
through the doctrines of res judicata and collateral estoppel, it is a little hard to understand why they
should not be allowed to have merely evidentiary effect, if for some reason not all the requirements of res
judicata or collateral estoppel are fulfilled.”
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judicial findings, the court will allow the certificate of admissibility into evidence under Rule
803(8) as evidence of the extent of injury to the plaintiff.
Moreover, the COI may bear on the due process claim insofar as it is needed to keep the
jury’s focus on the materiality issue as opposed to Kluppelberg’s actual guilt or innocence.
Whether the court in Newsome relied on judicial notice or another basis for admission of the
pardon is not reflected in the reported decision, but its concern that exclusion of the evidence
would have been highly prejudicial to the plaintiff reflects the mandate of Rule 102 that the
rules should be construed “to administer every proceeding fairly[.]” In this regard, the court
reserves ruling. Should defendants offer evidence that Kluppelberg was actually guilty so as to
negate the materiality of the allegedly withheld evidence, the COI would be relevant rebuttal
evidence and admissible under Rule 803(8).
D.
Prejudice to Defendants
Defendants argue that admission of the COI would deprive them of due process of law
because it would bind them to the outcome of a proceeding to which they were not parties. The
COI makes no finding as to any act of any police officer involved in the case that would put
them in the position of having to rebut a finding made in a proceeding to which they were not a
party. To the contrary, due process is not denied to defendants by admission of this evidence.
The Federal Rules of Evidence are rules of inclusion, not exclusion, with the ultimate purpose of
“ascertaining the truth and securing a just determination.” See Fed. R. Ev. 102; Univac Dental
Co. v. Dentsply Intern., Inc., 268 F.R.D. 190, 197 (M.D. Pa. 2010) (“This quality
of inclusion embraced by the Federal Rules of Evidence, favoring the admission of potentially
probative proof in all of its forms, is further buttressed by Rule 402, which generally defines the
admissibility of relevant evidence in sweeping terms.”); United States v. Shonubi, 895 F. Supp.
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460, 492 (E.D.N.Y.,1995) (citing “strong federal policy favoring admissibility of, and reliance
on, all helpful information”); United States v. Lane, 194 F.Supp.2d 758, 777 (N.D. Ill. 2002)
(“Federal Rules of Evidence are essentially rules of inclusion with an end toward attaining [sic]
the truth.” (internal citation and quotation omitted)).
Although the COI is evidence supporting Kluppelberg’s position that he did not commit
the crime, evidence that he did commit the crime may also be admitted because it may be
necessary for the jury to decide whether Kluppelberg likely committed the crime in order to
decide whether the alleged wrongdoing of the defendants caused him injury and, if so, the extent
of damages. The COI, like the initial guilty verdict, is evidence in the case. Our system of
justice trusts the jury in its sound judgment to weigh all of the evidence in determining which
party is entitled to a favorable verdict. The jury may be instructed that the COI is not conclusive
of Kluppelberg’s innocence but merely evidence to be weighed along with all of the evidence in
the case. 6
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A COI is not a civil judgment in the sense that it announces the outcome of an adversary
proceeding. Under the Statute, the applicant provides the documentation required and the certificate is
granted or denied based on the submission. § 5/2-702(c), (d). The applicant must serve the State’s
Attorney who prosecuted the applicant and the Attorney General, who are permitted to intervene as a
party. § 5/2-702 (e). This strongly implies that the typical proceeding is ex parte, similar to assessment
of probable cause for a warrant. If Kluppelberg’s proceeding was ex parte, the jury may be so informed.
The court is confident that the jury will be fully capable of understanding that the COI may be entitled to
less weight as a result.
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ORDER
The motion of Defendant City of Chicago to bar reference to plaintiff’s 735 ILCS 5/2702 certificate (dkt. 187) is denied.
Date: March 24, 2015
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U.S. District Judge Joan H. Lefkow
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