Taliani v. HerrmannTaliani v. Herrmann
Justice SCHMIDT delivered the judgment of the court, with opinion.
¶ 1 In an action under the Illinois Freedom of Information Act (the Act) (
¶ 2 FACTS
¶ 3 Taliani is currently serving a 70-year sentence for murder and a 30-year sentence for aggravated battery with a firearm, both from convictions in 1994. In June 2007, he filed a pro se complaint for declaratory and injunctive relief under the Act. In his complaint, Taliani alleged that the Bureau County circuit court clerk denied his request for “a copy of Grand Jury Transcripts from the case of People v. Taliani, Case No. 94-CF-37.” Taliani
¶ 4 Taliani then wrote a letter to his criminal trial lawyer asking for the grand jury transcripts. In a responsive pleading, Taliani stated that his criminal trial attorney failed to respond to his request for the transcripts. Subsequently, Herrmann sent Taliani a letter stating that he was denying Taliani‘s freedom of information request “[b]ecause the proceedings of the Grand Jury are conducted in secrecy, matters other than deliberations and the vote cannot be disclosed by the State‘s Attorney with only limited exceptions. The dissemination of Grand Jury proceedings is covered by
¶ 5 Robert Caplan entered his appearance as Taliani‘s counsel in the matter; Taliani filed a two-count amended complaint. In count II, Taliani named Herrmann, in his official capacity as Bureau County State‘s Attorney, as the defendant. Taliani asserted that Herrmann denied his request for the grand jury transcripts and attached the letter from Herrmann.
¶ 6 Herrmann filed a motion to dismiss count II of Herrmann‘s complaint. Taliani filed a response to Herrmann‘s motion and then a motion for judgment on the pleadings. The court denied Herrmann‘s motion to dismiss and granted Taliani‘s motion for judgment on the pleadings, ordering Herrmann to provide the grand jury transcripts to Taliani.
¶ 7 Taliani submitted a petition contending that under section 11(i) of the Act (
¶ 8 The court held a hearing on Taliani‘s petition for attorney fees; at the beginning of the hearing, Taliani submitted a supplemental petition for attorney fees, seeking fees on fees for the time he spent preparing and litigating his original fee petition. Attorney Randolph Gordon testified as a witness for Taliani. Gordon opined that a $250 hourly rate was reasonable given Caplan‘s work on the case, his experience and what other judges in the circuit have approved as an hourly rate in civil cases. Caplan testified that a $250 hourly rate was reasonable based on his responsibility in the case, his many years of experience and the hourly rates for lawyers in civil matters in several of the surrounding counties.
¶ 9 At the conclusion of the hearing, the court reduced the total hours from 85.1 to 57.86. The court also reduced Caplan‘s hourly rate from $250 to $162.50, finding that $162.50 was a reasonable hourly rate in the area based on its experience. The court awarded Taliani fees of $9,361.62. The court refused to award Taliani any fees on fees requested in his supplemental petition.
¶ 10 Herrmann appeals the trial court‘s award of attorney fees to Taliani. Taliani cross-appeals the trial court‘s denial of the fees on fees.
¶ 11 ANALYSIS
¶ 12 The Act requires public bodies make “available to any person for inspection or copying all public records, except
¶ 13 Section 112-6 of the Code of Criminal Procedure of 1963 (the Code) (
¶ 14 Taliani was only entitled to a copy of the grand jury transcripts pursuant to the Code and the Code does not allow him to recover his fees. It was error for the trial court to award fees to Taliani in this matter.
¶ 15 Contrary to the dissent‘s assertions, in both this court and the trial court, Herrmann argued that it was improper to award fees because a law other than the Act controlled his ability to disclose the transcripts to Taliani.1 Thus, he raised an issue of law that this court reviews de novo. Corral v. Mervis Industries, Inc., 217 Ill.2d 144, 153, 298 Ill.Dec. 201, 839 N.E.2d 524 (2005). No doubt the Act‘s attorney fees provision is to dissuade public officials from refusing to disclose public records that the Act requires them to disclose. That is, the Act provides, in essence, that if a public official requires one to hire a lawyer and file suit to obtain that which should have been handed to him, the person who ultimately prevails in obtaining
¶ 16 We hold that, as a matter of law, the Act is not the proper vehicle for obtaining grand jury transcripts. As Herrmann originally advised Taliani, disclosure of grand jury transcripts is governed by section 112-6(c)(3).
¶ 17 For the foregoing reasons, the judgment of the circuit court of Bureau County is reversed and vacated with regard to the granting of attorney fees.
¶ 18 Reversed and vacated in part.
Justice HOLDRIDGE concurred in the judgment and opinion.
Justice LYTTON dissented, with opinion.
¶ 19 JUSTICE LYTTON, dissenting:
¶ 20 I dissent. The issue decided by the majority was never raised in the trial court or on appeal. The only issue on appeal was the attorney fees award. Thus, the order granting Taliani‘s Freedom of Information Act (FOIA) complaint is not at issue in this appeal. This court should be reviewing the only issue properly before it, which is the trial court‘s attorney fees award. I would affirm the trial court‘s award of attorney fees to Taliani but remand to determine the proper amount of fees, including fees on fees.
¶ 21 I
¶ 22 Illinois Supreme Court Rule 303(b)(2) provides that a notice of appeal “shall specify the judgment or part thereof or other orders appealed from and the relief sought from the reviewing court.”
¶ 23 Issues not raised in the trial court are forfeited on appeal. Rojas Concrete, Inc. v. Flood Testing Laboratories, Inc., 406 Ill.App.3d 477, 482, 347 Ill.Dec. 71, 941 N.E.2d 940 (2010). Similarly, all arguments not raised in an opening appellate brief are forfeited. Jordan v. Civil Service Comm‘n, 246 Ill.App.3d 1047, 1048, 186 Ill.Dec. 903, 617 N.E.2d 142 (1993).
¶ 24 It is improper for courts of review to raise issues sua sponte. Our supreme court explained: “Illinois law is well settled that * * * `a reviewing court should not normally search the record for unargued and unbriefed reasons to reverse a trial court judgment.‘” (Emphasis omitted.) People v. Givens, 237 Ill.2d 311, 323, 343 Ill.Dec. 146, 934 N.E.2d 470 (2010) (quoting Saldana v. Wirtz Cartage Co., 74 Ill.2d 379, 386, 24 Ill.Dec. 523, 385 N.E.2d 664 (1978)). The United States Supreme Court has articulated the reasons for this policy:
“In our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision
and assign to courts the role of neutral arbiter of matters the parties present. * * * [A]s a general rule, `[o]ur adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitled them to relief.’ [Citation.] As cogently explained: `[Courts] do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties. Counsel almost always know a great deal more about their cases than we do * * *.’ [Citation.]” Greenlaw v. United States, 554 U.S. 237, 243-44, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008).
¶ 25 Here, Taliani filed a FOIA request to obtain his grand jury transcripts. Herrmann denied Taliani‘s request with a letter stating:
“That Grand Jury Transcript was provided to your attorney prior to trial. You should contact him to receive a Grand Jury Transcript if you do not have it.
725 ILCS 5/112-6 prohibits any further disclosure of the Grand Jury Transcript to you or anyone else.”
Herrmann never asserted that the transcripts were exempt from FOIA, as he was required to do upon denial of Taliani‘s FOIA request. See Illinois Education Ass‘n v. Illinois State Board of Education, 204 Ill.2d 456, 463-64, 274 Ill.Dec. 430, 791 N.E.2d 522 (2003) (when a public body receives a request for information under FOIA, it must comply with that request or provide written notice specifying the particular exemption, set forth in section 7 of FOIA, claimed to authorize the denial).
¶ 26 Taliani filed a complaint for declaratory judgment and injunctive relief, alleging that Herrmann violated FOIA. Herrmann filed a motion to dismiss the complaint, alleging that the Code of Criminal Procedure of 1963 (Code) (
¶ 27 A. Notice of Appeal
¶ 28 Herrmann filed a notice of appeal, which provided:
“Patrick Herrmann * * * hereby appeals the order * * * entered on January 22, 2009 awarding attorney‘s fees in the amount of $9,361.62. The appellant seeks the reversal of the order entered January 22, 2009 awarding the attorney‘s fees to the plaintiff, appellee, Steven Taliani.”
The notice of appeal made no reference to the trial court‘s August 8, 2008, order granting Taliani judgment on his FOIA complaint nor did it seek reversal of that order, which did not become appealable until the trial court ruled on the attorney fee request. See Hamer v. Lentz, 155 Ill.App.3d 692, 695, 108 Ill.Dec. 163, 508 N.E.2d 324 (1987). Since the notice of appeal did not mention the August 8, 2008, order, we lack jurisdiction to consider it.2
¶ 30 Additionally, it was improper for the majority to rule that FOIA was “not the proper vehicle for obtaining grand jury transcripts” because that issue was never raised by Herrmann in the trial court or on appeal. Supra, ¶ 17. In the trial court, Herrmann argued that the Code did not authorize disclosure of the transcripts. He never argued that FOIA did not apply to Taliani‘s request for his grand jury transcripts or that the transcripts were exempt from disclosure under FOIA. Thus, Herrmann forfeited review of the trial court‘s decision that FOIA required disclosure of the transcripts. See Rojas Concrete, Inc., 406 Ill.App.3d at 482, 347 Ill. Dec. 71, 941 N.E.2d 940.
¶ 31 Furthermore, on appeal, Herrmann did not challenge the trial court‘s order granting Taliani‘s motion for judgment on the pleadings. The only “Issue[ ] Presented for Review” by Herrmann in his opening brief was “[w]hether the trial court erred in awarding attorney fees.” Because the sole issue Herrmann presented to this court was the propriety of the attorney fees award, the trial court‘s decision granting judgment to Taliani in the FOIA action is not reviewable by this court. See Jordan, 246 Ill.App.3d at 1048, 186 Ill.Dec. 903, 617 N.E.2d 142.
¶ 32 Here, the majority sua sponte raised the issue of whether Taliani‘s underlying FOIA complaint was proper. Because that issue was not raised by the parties in the trial court or on appeal, the majority should not have decided it. See Givens, 237 Ill.2d at 323, 343 Ill.Dec. 146, 934 N.E.2d 470.
¶ 33 II
¶ 34 Though I need only speak to the majority‘s opinion, I think the substantive issues, the only issues, raised by the parties should be addressed, that is (1) whether the trial court properly granted attorney fees to Taliani‘s attorney, and (2) whether Taliani‘s attorney was entitled to fees on fees. I would answer both questions in the affirmative.
¶ 35 A. Entitlement to Fees
¶ 36 The only prerequisite to an award of attorney fees under FOIA is that the party seeking the information “substantially prevail[ ] in a proceeding.”
¶ 37 In determining a reasonable fee, the court may consider the fee arrangement between the attorney and the client. Renken v. Northern Illinois Water Co., 191 Ill.App.3d 744, 751, 138 Ill.Dec. 755, 547 N.E.2d 1376 (1989). Other factors to consider are: (1) the skill and standing of the attorney; (2) the nature of the cause and the novelty and difficulty of the issue; (3) the amount and the importance of the subject matter; (4) the degree of responsibility involved in managing the case; (5) the time and labor required; (6) the usual and customary rate charged in the community; and (7) the benefit to the client. Blankenship v. Dialist International Corp., 209 Ill.App.3d 920, 927, 154 Ill.Dec. 503, 568 N.E.2d 503 (1991). A trial court is free to use its own knowledge and experience to evaluate the attorney fees sought. McHenry Savings Bank v. Autoworks of Wauconda, Inc., 399 Ill.App.3d 104, 113, 338 Ill.Dec. 671, 924 N.E.2d 1197 (2010).
¶ 38 The record shows that in 2007, Taliani requested his grand jury transcripts from Herrmann through a FOIA request. Herrmann refused to turn over the transcripts to Taliani. Only after Taliani instituted his FOIA action and the trial court ordered Herrmann to provide the transcripts did Herrmann finally turn them over. Taliani substantially prevailed in his FOIA action. See Stukel, 294 Ill.App.3d at 202, 228 Ill.Dec. 447, 689 N.E.2d 319.
¶ 39 Taliani‘s attorney, Caplan, provided sufficient information supporting his request for attorney fees. Caplan‘s fee petition contained a detailed list of the services Caplan performed on Taliani‘s behalf, the time spent on those services and the hourly rate he charged for his work. Caplan also testified to his time and work product. Taliani‘s expert testified to the amount of work Caplan performed in the case, Caplan‘s experience, and the customary rate charged by attorneys in the community. The trial court considered this evidence to determine the fee‘s reasonableness, applying the Blankenship factors. See Blankenship, 209 Ill.App.3d at 927, 154 Ill.Dec. 503, 568 N.E.2d 503. Additionally, the court properly relied upon its own knowledge and experience in determining the fees. See McHenry Savings Bank, 399 Ill.App.3d at 113, 338 Ill.Dec. 671, 924 N.E.2d 1197. The trial court properly determined that Taliani was entitled to attorney fees.
¶ 40 B. Fees on Fees
¶ 41 The question of whether the Illinois FOIA‘s provision for attorney fees includes fees on fees appears to be a matter of first impression. However, Illinois courts have permitted fees on fees requests in other contexts. See Rackow v. Human Rights Comm‘n, 152 Ill.App.3d 1046, 1064, 105 Ill.Dec. 826, 504 N.E.2d 1344 (1987) (allowing fees on fees under Human Rights Act); In re Estate of Marks, 74 Ill.App.3d 599, 30 Ill.Dec. 502, 393 N.E.2d 538 (1979) (trial court approved attorney fees for time spent preparing petition for attorney fees in contested probate case). We agree with this concept and believe it should apply in FOIA cases.
¶ 42 Courts have allowed fees on fees under similar state statutes,3 federal FOIA,4 and other federal fee-shifting statutes.5 The denial of fees on fees attenuates
¶ 43 The primary purpose of the Illinois FOIA‘s attorney fee provision is “to prevent the sometimes insurmountable barriers presented by attorney fees from hindering an individual‘s request for information and from enabling the government to escape compliance with the law.” Duncan Publishing, Inc. v. City of Chicago, 304 Ill.App.3d 778, 786, 237 Ill.Dec. 568, 709 N.E.2d 1281 (1999). The purpose and intent of the Illinois FOIA‘s attorney fees provision can only be fully accomplished if fees on fees are allowed. I would find that the trial court erred in denying Taliani‘s request for fees on fees.