IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CRIMINAL DIVISION

IN RE APPOINTMENT OF SPECIAL PROSECUTOR

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No. 2011 Misc. 46

The Honorable
Michael P. Toomin

OFFICE OF THE SPECIAL PROSECUTORS RESPONSE IN OPPOSITION TO

THE CITY OF CHICAGOS MOTION TO MODIFY ORDERS ENTERED
BY THE COURT ON JUNE 14, 2012 AND JUNE 25, 2014

Pursuant to the Courts February 29, 2016 email inviting responses from all parties
noticed on the City of Chicagos (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 Courts 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 States
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

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 Mikvas rulings in Better
Govt Assn v. Office of the Special Prosecutor, 15 CH 4183.

and is expressly embodied in Illinois law. See 725 ILCS 5/1126. The OSP has worked
tirelessly since its appointment in April 2012 to ensure that that cornerstone principle has been
adhered tonot 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 5/1126(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

Sun-Times had previously sought, again identifying and characterizing the documents requested
as being related to the investigation of the death of David Koschman. Citys 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 OSPs motion in its entirety, but denied the Citys, ruling that this
Courts 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 Citys 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 Courts permission to disseminate protected grand jury materials to
the BGA.
ARGUMENT
This Court should deny the Citys 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 identifiedat the Citys 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 Citys
proposed standardrelated to modifying injunctionsapplies, the City fails to meet it.

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.,
Citys 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 Citys 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. Citys 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 45. 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 OSPs May 8, 2015 Motion to Dismiss. See Citys Motion to Modify, Ex. I, at 67;
see also OSPs Sep. 15, 2014 Response to Taylor Petition at 67.
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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 BGAs current FOIA request unequivocally seeks to learn what
took place before the Special Grand Jury. Citys Motion to Modify, Ex. E (2014 Order), at 3. It
is beyond doubt that granting the Citys 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 order3 denying Petitioner Daniel Taylors
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.

The City was a non-party respondent in that matter, submitted briefs and participated in oral
argument before this Court in opposition to Petitioner Taylors request, where it advocated for
and adopted the Douglas Oil standard set forth herein.
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Citys Motion to Modify, Ex. I. (OSP Memo in support of Motion to Dismiss), Ex. 1 (Order of
November 4, 2014) at 89. The Citys 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 Citys predicament of being
caught between conflicting orders cannot qualify as a Douglas Oil injustice because the City
concedes that the conflict between Judge Mikvas order and the Protective Orders could be
resolved through appellate review of Judge Mikvas 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 Citys 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 changedsuch facts are often referred to as the
controlling or applicable facts. See Am. Inst. of Real Estate Appraisers of Nat. Assn of
Realtors v. Natl Real Estate Assn, Inc., 191 Ill. App. 3d 867, 871 (1st Dist. 1989) (reversing
courts 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 courts 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 injunctions 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 courts 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 Citys motion identifies two controlling facts that led to the issuance of the 2012
Order which have since changed: the completion of the OSPs 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 . . . . Citys Motion to Modify, Ex.
E (2014 Order), at 5.

This Court correctly held then that the prosecutions end and

investigations 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 Courts
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
unchangedthat 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); Citys Motion to Modify, Ex. I. (OSP Memo
in support of Motion to Dismiss), Ex. 1 (Order of November 4, 2014) at 58. The Citys interest

in avoiding a contempt finding related to Judge Mikvas 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 Mikvas 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).