                            ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           Uphoff v. Grosskopf, 2013 IL App (4th) 130422




Appellate Court              SETH P. UPHOFF, State’s Attorney of Livingston County, Plaintiff and
Caption                      Counterdefendant-Appellant, v. MATTHEW E. GROSSKOPF,
                             Defendant and Counterplaintiff-Appellee.



District & No.               Fourth District
                             Docket No. 4-13-0422



Filed                        December 12, 2013



Held                         An order granting defendant’s request under the Freedom of Information
(Note: This syllabus         Act for the production of documents relating to a 2001 murder trial
constitutes no part of       prosecuted by the office of plaintiff State’s Attorney was reversed on the
the opinion of the court     ground that State’s Attorney’s office is a “public body” for purposes of
but has been prepared        the Act and is exempt from complying with the Act.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under               Appeal from the Circuit Court of Livingston County, No. 11-MR-41; the
Review                       Hon. Stephen R. Pacey, Judge, presiding.



Judgment                     Reversed.
Counsel on                 Seth Uphoff (argued), State’s Attorney, of Pontiac (Randy A. Yedinak,
Appeal                     Assistant State’s Attorney, of counsel), for appellant.

                           Donald M. Craven and Esther J. Seitz (argued), both of Donald M.
                           Craven, P.C., of Springfield, for appellee.

                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, and Jane Elinor Notz, Assistant Attorney General, of
                           counsel), amicus curiae.


Panel                      JUSTICE STEIGMANN delivered the judgment of the court, with
                           opinion.
                           Justice Turner specially concurred, with opinion.
                           Presiding Justice Appleton dissented, with opinion.



                                            OPINION

¶1          Plaintiff, Seth P. Uphoff, the Livingston County State’s Attorney, appeals from the trial
        court’s order granting summary judgment in favor of defendant, Matthew Grosskopf. The
        court ordered Uphoff to produce documents to Grosskopf pursuant to his request under the
        Freedom of Information Act (hereinafter FOIA) (5 ILCS 140/1 to 11.5 (West 2010)). For the
        reasons that follow, we reverse.

¶2                                       I. BACKGROUND
¶3          In February 2010, Grosskopf sent Thomas Brown, who was then the Livingston County
        State’s Attorney, a FOIA request for documents relating to a 2001 murder trial conducted in
        Livingston County. Brown denied the request, and Grosskopf appealed to the Attorney
        General’s Public Access Counselor, who issued a letter finding that Brown was required to
        disclose the documents requested by Grosskopf, subject to permissible redactions.
¶4          In April 2011, Brown filed a complaint for declaratory relief, seeking a court
        determination as to whether the State’s Attorney’s office was a “public body” within the
        meaning of section 2 of FOIA (5 ILCS 140/2(a) (West 2010)). Brown named Grosskopf and
        Lisa Madigan, in her capacity as Illinois Attorney General, as defendants. Grosskopf
        answered the complaint and filed a counterclaim to compel Brown’s compliance with the
        Public Access Counselor’s advisory opinion. Madigan filed a motion to dismiss, arguing that
        Brown was unable to state a cause of action for declaratory relief because no actual
        controversy existed. Specifically, Madigan asserted that the Public Access Counselor’s letter
        was a nonbinding and nonreviewable opinion, meaning it could not form the basis of an

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       actual legal controversy. The trial court later granted Madigan’s motion to dismiss.
¶5         Brown appealed, and this court affirmed. Brown v. Grosskopf, 2013 IL App (4th) 120402,
       ¶ 15, 984 N.E.2d 1167.
¶6         Following this court’s decision, the trial court amended the caption to reflect the named
       plaintiff and counterdefendant, Seth P. Uphoff, who is the current Livingston County State’s
       Attorney. Grosskopf filed a motion for summary judgment on his surviving counterclaim.
       After a May 2013 hearing, the court ruled in Grosskopf’s favor and granted summary
       judgment. The court concluded that FOIA applied to State’s Attorneys and ordered the
       requested documents be released to Grosskopf.
¶7         This appeal followed.

¶8                                        II. ANALYSIS
¶9         Uphoff argues that the trial court erred by concluding that a State’s Attorney’s office is
       a “public body” within the meaning of FOIA. Uphoff asserts that the office instead is a part
       of the judicial branch of state government and, therefore, exempt from complying with
       FOIA. Because we conclude that a State’s Attorney’s office is a “judicial body,” we agree
       with Uphoff that it is exempt under FOIA.

¶ 10                                A. The Standard of Review
¶ 11       When reviewing an order granting summary judgment, this court determines whether the
       case presents any genuine issues of material fact. If not, then we decide whether the moving
       party is entitled to judgment as a matter of law. We review de novo the trial court’s grant of
       summary judgment. Metropolitan Life Insurance Co. v. Hamer, 2013 IL 114234, ¶ 17, 990
       N.E.2d 1144.

¶ 12                                 B. Statutory Interpretation
¶ 13       In Relf v. Shatayeva, 2013 IL 114925, ¶¶ 23, 39, the Illinois Supreme Court recently
       discussed the principles governing statutory interpretation and wrote the following:
           “The primary goal in construing a statute is to ascertain and give effect to the
           legislature’s intent. The best indication of that intent is the language of the statute.
           [Citation.] In construing that language, words and phrases should not be considered in
           isolation. Rather, the language in each section of the statute must be examined in light
           of the statute as a whole, which is construed in conjunction with other statutes touching
           on the same or related subjects.”
       And:
               “When construing statutes, it is appropriate to consider similar and related
           enactments, though not strictly in pari materia. We must presume that several statutes
           relating to the same subject are governed by one spirit and a single policy, and that the
           legislature intended the several statutes to be consistent and harmonious.”
¶ 14       In Prazen v. Shoop, 2013 IL 115035, ¶ 21, the supreme court further discussed statutory


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       interpretation as follows:
           “[I]n determining the legislative intent of a statute, a court may consider not only the
           language used, but also the reason and necessity for the law, the evils sought to be
           remedied, and the purposes to be achieved. [Citation.] Words and phrases should be
           construed in light of other relevant provisions of the statute and must not be interpreted
           in isolation. [Citation.] Each word, clause and sentence of a statute must be given a
           reasonable meaning, if possible, and should not be rendered superfluous.”

¶ 15                          C. The Judicial Exemption Under FOIA
¶ 16       “[T]he purpose of FOIA ‘ “is to open governmental records to the light of public
       scrutiny.” ’ ” City of Champaign v. Madigan, 2013 IL App (4th) 120662, ¶ 29, 992 N.E.2d
       629 (quoting Stern v. Wheaton-Warrenville Community Unit School District 200, 233 Ill. 2d
       396, 405, 910 N.E.2d 85, 91 (2009), quoting Bowie v. Evanston Community Consolidated
       School District No. 65, 128 Ill. 2d 373, 378, 538 N.E.2d 557, 559 (1989)). However,
       exemptions and exclusions exist. Generally, FOIA provides that “[e]ach public body shall
       make available to any person for inspection or copying all public records.” 5 ILCS 140/3(a)
       (West 2010).
¶ 17       The parties agree that FOIA does not apply to the judicial branch of state government.
       See Copley Press, Inc. v. Administrative Office of the Courts, 271 Ill. App. 3d 548, 553, 648
       N.E.2d 324, 327-28 (1995) (“The lack of any reference to the courts or judiciary must be
       taken as an intent to exclude the judiciary from the disclosure requirements of [FOIA].”).
       Thus, the pivotal question in this case is whether the State’s Attorney’s office is a “public
       body” within the meaning of FOIA or, as Uphoff asserts, “a judicial body” of state
       government.

¶ 18            D. The Second District’s Decision in Nelson v. County of Kendall
¶ 19       The Second District recently addressed the same question presented here: Is the State’s
       Attorney’s office a “public body” subject to FOIA? See Nelson v. County of Kendall, 2013
       IL App (2d) 120635, ¶ 8, 990 N.E.2d 1237. In Nelson, the Second District determined that
       a State’s Attorney’s office was not a “public body” but was instead a judicial body that was
       established in the judicial article of the Illinois Constitution (Ill. Const. 1970, art. VI, § 19).
       Accordingly, the Nelson court held that a State’s Attorney’s office was exempt from the
       requirement to produce documents or other materials pursuant to a FOIA request. Nelson,
       2013 IL App (2d) 120635, ¶¶ 17, 24, 990 N.E.2d 1237. Nelson is currently pending before
       the Illinois Supreme Court. See Nelson v. County of Kendall, No. 116303 (Ill. S. Ct.).
¶ 20       We agree with Nelson’s ultimate conclusion but our analysis differs somewhat from that
       of the Second District.

¶ 21                              E. The Creation of SAAP
¶ 22      A key component of our analysis of legislative intent in this case is Public Act 96-900,
       which became effective on May 28, 2010. Public Act 96-900 amended the State’s Attorneys

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       Appellate Prosecutor’s Act (SAAP Act) (725 ILCS 210/1 to 11 (West 2012)), which created
       the office of the State’s Attorneys Appellate Prosecutor (SAAP).
¶ 23        The General Assembly created SAAP 36 years ago to handle criminal cases on appeal
       for prosecutors outside Cook County. As described by the Second District in Nelson, SAAP
       is “the statutorily created appellate arm of the office of State’s Attorney.” Nelson, 2013 IL
       App (2d) 120635, ¶ 19, 990 N.E.2d 1237. The SAAP Act further provides that SAAP may
       assist State’s Attorneys in the prosecution of cases at the trial level or serve as special
       prosecutor if so appointed by a court. 725 ILCS 210/4.01 (West 2012).
¶ 24        Since the SAAP Act was passed 36 years ago, it was amended three times before 2010.
       Each of those amendments dealt with minor issues of SAAP governance and contained no
       changes of substance. See Pub. Act 80-1331 (eff. Aug. 7, 1978); Pub. Act 83-747 (eff. Jan.
       1, 1984); Pub. Act 84-1062 (eff. July 1, 1986).
¶ 25        Significantly, the first sentence of section 3 of the SAAP Act provides as follows: “There
       is created the Office of the State’s Attorneys Appellate Prosecutor as an agency of state
       government.” 725 ILCS 210/3 (West 2008). That sentence appeared in the original SAAP
       Act as enacted in 1977 and remained unchanged until 2010.

¶ 26                                  F. The FOIA Litigation
¶ 27      As earlier noted, in February 2010, Grosskopf sent the then-Livingston County State’s
       Attorney a FOIA request for documents relating to a 2001 murder trial conducted in
       Livingston County. That request began the litigation that is now before this court.
¶ 28      Also in 2010, the plaintiff in Nelson filed an action in the circuit court of Kendall County
       (Kendall County No. 10-MR-143) pursuant to a FOIA request, seeking injunctions requiring
       Kendall County and the Kendall County State’s Attorney to turn over emails that the plaintiff
       contended were generated by the Kendall County State’s Attorney’s office. Nelson, 2013 IL
       App (2d) 120635, ¶ 1, 990 N.E.2d 1237. That litigation ultimately led to the Second
       District’s decision in Nelson.

¶ 29                     G. The Language and Timing of Public Act 96-900
¶ 30        Senate Bill 3372 of the 96th General Assembly, which ultimately became Public Act 96-
       900, was introduced in February 2010. That bill amended three sections of the SAAP Act and
       repealed two others. See Pub. Act 96-900 (eff. May 28, 2010). Most of the provisions of that
       bill dealt with relatively minor revisions in the governance of SAAP, but the bill contained
       one important change. That change appears in the first sentence of section 3 of the SAAP
       Act, which was amended to provide as follows: “There is created the Office of the State’s
       Attorneys Appellate Prosecutor as a judicial agency of state government.” (Emphasis added.)
       Pub. Act 96-900 (eff. May 28, 2010). We note again that prior to the enactment of Public Act
       96-900, that sentence simply referred to the creation of SAAP “as an agency of state
       government.” 725 ILCS 210/3 (West 2008).




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¶ 31                    H. The Purpose and Meaning of Designating SAAP
                           “As a Judicial Agency of State Government”
¶ 32       Given the timing of the FOIA requests made to the State’s Attorney in the present case
       and to the State’s Attorney in Nelson, and given further the timing of the enactment of Public
       Act 96-900, we are convinced that (1) the amendment to the first sentence of section 3 of the
       SAAP Act in 2010 was in response to the litigation in this case and in Nelson and (2) the
       purpose of Public Act 96-900, deeming SAAP to be “a judicial agency of state government,”
       was to provide a FOIA exemption for that agency.
¶ 33       At oral argument, this court presented Grosskopf’s counsel with this proposed
       interpretation of the reason for the legislature’s designating SAAP to be “a judicial agency
       of state government” and asked, if that interpretation was not correct, what interpretation she
       could provide for the legislature’s enactment of Public Act 96-900. She could provide none,
       and neither can we.

¶ 34                 I. The Prosecutorial Role of SAAP and State’s Attorneys
¶ 35       Further supporting our conclusion that the purpose of Public Act 96-900 was to exempt
       SAAP from FOIA requests is that SAAP is, in fact, in no sense a judicial agency of state
       government. That is, SAAP performs no functions that are remotely similar to those
       performed by judges. Instead, SAAP is purely a prosecutorial agency and has been
       throughout its 36-year existence.
¶ 36       In discussing the prosecutorial role of State’s Attorneys, this court has written the
       following:
                “The State’s Attorney is a constitutional officer. (Ill. Const. 1970, art. VI, § 19.) His
           office is part of the executive branch of State government and the powers exercised by
           that office are executive powers. (People v. Stinger[, 22 Ill. App. 3d 371, 373, 317
           N.E.2d 340, 342 (1974)]).” People v. Thompson, 88 Ill. App. 3d 375, 377, 410 N.E.2d
           600, 601 (1980).
       Before this court made the above observation in Thompson, the Illinois Supreme Court relied
       on the principle that the State’s Attorney’s office is part of the executive branch. See, inter
       alia, People ex rel. Daley v. Suria, 112 Ill. 2d 26, 37, 490 N.E.2d 1288, 1292 (1986); People
       ex rel. Daley v. Moran, 94 Ill. 2d 41, 45, 445 N.E.2d 270, 272 (1983) (“It is a familiar and
       firmly established principle that the State’s Attorney [is] a member of the executive branch
       ***.”); People v. Rhodes, 38 Ill. 2d 389, 396, 231 N.E.2d 400, 403 (1967); People ex rel.
       Elliott v. Covelli, 415 Ill. 79, 88-89, 112 N.E.2d 156, 160-61 (1953).
¶ 37       We agree with Grosskopf that although the State’s Attorney’s office was created within
       the judicial article of the Illinois Constitution of 1970, the State’s Attorney’s office is not part
       of the judicial branch of government. The judicial branch exercises judicial power, which is
       the power to adjudicate cases. We agree with the following description of “judicial power”
       taken from Black’s Law Dictionary 864 (8th ed. 2004):
           “The authority vested in courts and judges to hear and decide cases and to make binding
           judgments on them; the power to construe and apply the law when controversies arise


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           over what has been done or not done under it.”
       We again note that neither SAAP nor State’s Attorneys exercise such judicial power.
¶ 38       However, none of the above discussion about the role or duties of the State’s Attorneys
       (or SAAP) matters to the resolution of this case. That is because, as the Nelson court
       explained:
           “[T]he focal point of our inquiry is not the history and tradition of State’s Attorneys’
           powers and functions. Nor is our focus on determining the branch of government to
           which State’s Attorneys belong. Rather, our narrow objective is to determine only
           whether the legislature intended to include State’s Attorneys within the Act’s definition
           of ‘public body.’ Again, given that (1) the Act’s definition of ‘public body’ does not
           include judicial bodies, (2) the legislature’s use of the term ‘judicial’ in another context
           [(referring here to section 3 of the SAAP Act (725 ILCS 210/3 (West 2012)))] reveals
           that the term is broad enough to include an entity created under the constitution’s judicial
           article, and (3) the office of State’s Attorney is established in the constitution’s judicial
           article, we decline to infer a legislative intent to include State’s Attorneys within the
           Act’s definition of ‘public body’ absent a clear expression to that effect.” Nelson, 2013
           IL App (2d) 120635, ¶ 21, 990 N.E.2d 1237.
¶ 39       We note that Public Act 96-900, in addition to deeming SAAP to be a “judicial agency
       of state government,” added no new powers or duties to SAAP that in any way could be
       viewed as judicial in nature. Thus, despite the fact that SAAP performs no judicial functions,
       the legislature–in 2010–while the litigation in this case and in Nelson was being either
       proposed or pursued, changed the designation of SAAP from “an agency of state
       government” to “a judicial agency of state government.”
¶ 40       The General Assembly’s declaration that SAAP is “a judicial agency of state
       government” reminds us of a story involving Abraham Lincoln, who, when questioned about
       an issue concerning the use of language, asked his questioner how many legs a dog would
       have if they called the dog’s tail a leg. The questioner confidently responded “five,” but
       Lincoln was not persuaded. He is reputed to have responded, “Calling a dog’s tail a leg
       doesn’t make it a leg.” Similarly, the legislature’s designation of SAAP, a state agency that
       performs no judicial functions whatsoever, as “a judicial agency of state government” does
       not somehow make it so.
¶ 41       We must presume that the legislature is aware of agencies of state government–like
       SAAP–that it has created and would further be aware that SAAP performs no judicial
       functions. Yet, despite this awareness, the legislature enacted Public Act 96-900, designating
       SAAP, an exclusively executive and prosecutorial agency of state government, as a judicial
       agency of state government. The General Assembly must have had some reason for passing
       legislation that is the statutory equivalent of declaring a dog’s tail to be a leg, and the only
       reason we can see is to provide SAAP with a FOIA exemption.

¶ 42                    J. The Term “Judicial Bodies” as Used in Nelson
¶ 43       This case does not involve a FOIA request made to SAAP. Nonetheless, we have
       extensively discussed Public Act 96-900 that amended the SAAP Act because, in our view,

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       it supports the Second District’s holding in Nelson that (1) FOIA does not apply to “judicial
       bodies” and (2) the term “judicial bodies” is broader than the term “the judiciary.” After all,
       as we have concluded, the legislature in Public Act 96-900 (1) deemed SAAP to be “a
       judicial agency of state government” (although it clearly is not) and (2) did so to exempt
       SAAP, clearly a prosecutorial agency, from FOIA requests. Thus, at least in the context of
       determining whether a judicial exemption under FOIA exists, (1) the Second District’s
       interpretation in Nelson of “judicial bodies” as being broader than it normally would be is
       correct and (2) the legislature intended for the judicial exemption under FOIA to be broadly
       construed and to include the State’s Attorneys of Illinois. In our opinion, this conclusion
       regarding the legislature’s intent is compelled by the enactment of Public Act 96-900.

¶ 44                        K. Epilogue Regarding Statutory Interpretation
¶ 45        The role of this court when construing statutes is not to ask whether the legislature could
       have stated the matter more directly and less ambiguously because such perceived legislative
       deficiencies do not matter. The judiciary’s purpose when construing statutes is to determine
       as best it can what the statutes mean based upon what the legislature has written.
¶ 46        One might think that the legislature could have been more direct and less ambiguous in
       this very case. For instance, if the legislature really intended to exempt State’s Attorneys
       offices from FOIA, it could have simply and explicitly so stated. The definition of “public
       body” in section 2(a) of FOIA (5 ILCS 140/2(a) (West 2012)) could have been amended to
       state that it did not include State’s Attorney’s offices. Multiple opportunities to make such
       an amendment have repeatedly arisen. We note that over the last 19 years, section 2 of FOIA
       has been amended 13 times, with 4 of those amendments occuring since 2010. See Pub. Act
       88-614, § 92 (eff. Sept. 7, 1994); Pub. Act 89-681, § 5 (eff. Dec. 13, 1996); Pub. Act 90-144,
       § 7 (eff. July 23, 1997); Pub. Act 90-670, § 5 (eff. July 31, 1998); Pub. Act 91-935, § 30 (eff.
       June 1, 2001); Pub. Act 92-335, § 5 (eff. Aug. 10, 2001); Pub. Act 92-468, § 10 (eff. Aug.
       22, 2001); Pub. Act 92-547, § 3 (eff. June 13, 2002); Pub. Act 92-651, § 7 (eff. July 11,
       2002); Pub. Act 96-261, § 900 (eff. Jan. 1, 2010); Pub. Act 96-542, § 10 (eff. Jan. 1, 2010);
       Pub. Act 96-1000, § 10 (eff. July 2, 2010); Pub. Act 97-579, § 3 (eff. Aug. 26, 2011).
¶ 47        On the other hand, we note that FOIA contains no explicit exemption for the judiciary
       in the first place. As we observed earlier, the appellate court in Copley Press simply inferred
       such an exemption because FOIA, in defining “public body” in section 2(a), refers to all
       “legislative, executive, administrative, or advisory bodies of the [s]tate.” (Internal quotation
       marks omitted.) Copley Press, 271 Ill. App. 3d at 553, 648 N.E.2d at 327-28. The exemption
       of the judiciary under FOIA was thus inferred based upon the absence of the judiciary from
       the above list. We mention this because, in context, our conclusion that the legislature took
       a rather oblique path to including a State’s Attorney’s office under the judicial exemption of
       FOIA is consistent with the oblique path the legislature has earlier and consistently taken
       with regard to the judicial exemption. By consistently, we mean that the legislature has had
       repeated opportunities to make explicit the judicial exemption from FOIA, but it has never
       taken advantage of those opportunities to do so.



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¶ 48                                   III. CONCLUSION
¶ 49       For the reasons stated, we reverse the trial court’s judgment.

¶ 50       Reversed.

¶ 51       JUSTICE TURNER, specially concurring.
¶ 52       While I agree with Justice Steigmann’s ultimate resolution of this case, I write separately
       to note I agree with the Second District’s analysis and holding in Nelson and would have
       followed that analysis here. Specifically, I agree with the Nelson court that it is significant
       the office of State’s Attorney was established in the judicial article of the Illinois
       Constitution. Ill. Const. 1970, art. VI, § 19.

¶ 53       PRESIDING JUSTICE APPLETON, dissenting.
¶ 54       I respectfully dissent. While I recognize the very real policy reasons in preventing the
       disclosure of prosecution files and work product (a policy with which I agree), I do not find
       the slender reed of the legislature’s denomination of the State’s Attorneys Appellate
       Prosecutor’s Office as a “judicial agency of State government,” without any substantive
       policy analysis of this conclusion by the General Assembly, is sufficient to support the
       conclusion this state’s 102 State’s Attorneys are exempt from FOIA. Nor do I believe the
       inclusion of State’s Attorneys within the several iterations of the judicial article of our state
       constitution places those offices within the judicial branch of government. Indeed, it is the
       judicial branch of government that is specifically excluded as a “public body” within the
       meaning of FOIA. Those 102 offices function as the prosecutorial arm of our system of
       justice, independent of judicial control. Because State’s Attorneys are not members of the
       judicial branch and, thus, excluded, it stands to reason the offices are “public bodies”
       according to our legislature’s definition of that term.
¶ 55       Should the legislature come to the conclusion that State’s Attorneys’ files not be subject
       to FOIA, it can specifically exclude State’s Attorneys’ offices from its purview.




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