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Houseknecht v. Zagel

OPINION FILED JANUARY 20, 1983.

DIANE HOUSEKNECHT, PLAINTIFF-APPELLEE,

v.

JAMES B. ZAGEL, DIRECTOR, ILLINOIS DEPARTMENT OF LAW ENFORCEMENT, ET AL., DEFENDANTS. — (THE DEPARTMENT OF LAW ENFORCEMENT, DEFENDANT-APPELLANT; MIDWEST STEEL ERECTION COMPANY, INC., ET AL., INTERVENING APPELLEES.)



Appeal from the Circuit Court of Cook County; the Hon. Albert S. Porter, Judge, presiding.

PRESIDING JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 3, 1983.

Defendant-appellant State of Illinois Department of Law Enforcement (appellant) appeals from an order of the circuit court denying appellant's motion to dismiss complaints for preliminary injunction and a temporary restraining order filed by plaintiffs-appellees Diane Houseknecht and Midwest Steel Erection Company (appellees) and granting appellee Houseknecht's motion for a temporary restraining order. The latter order temporarily restrained appellant from conducting any destructive testing on an aerial platform and steel rods involved in a construction accident. Appellant was also ordered not to remove those materials from the jurisdiction of the court and appellees were given the right to inspect those materials.

The principal issue raised by appellant is whether the circuit court had jurisdiction to enjoin appellant's investigatory activities in the manner requested by appellees and as actually ordered by the circuit court. Appellant also contends that under equitable principles the court should not have interfered with the exercise of discretion by public officials and that in any event there was an insufficient basis for granting the temporary restraining order.

We affirm.

Appellee Houseknecht's verified amended complaint for preliminary injunction alleged the following. Houseknecht is the widow of a construction worker killed on December 11, 1981, at the Illinois Center construction project when an aerial platform gave way. On December 14, 1981, Houseknecht filed a complaint in the circuit court of Cook County for damages arising out of that incident. On the same day Houseknecht obtained a temporary restraining order in that action which ordered those defendants (the defendants in this action were not a party to that action) to give Houseknecht immediate access to the platform and the steel rods for inspection and photographing and further ordering those defendants not to remove those materials from the jurisdiction of the court and not to perform any destructive testing on them. However at some time after December 11, 1981, the defendants in this cause, the State of Illinois Department of Law Enforcement and its director, James B. Zagel, seized those materials. According to the complaint since that time those defendants have limited Houseknecht's access to those materials, have informed her of their intent to take the materials to Champaign, Illinois, in order to conduct destructive testing on them, have refused to advise her of the exact nature of those proposed tests and have refused to permit her representatives to control those tests in any manner. Houseknecht further alleged that the proposed destructive testing would alter and destroy the condition of those materials and would thus destroy evidence of vital importance to her civil lawsuit. She alleged that this testing and the failure to notify her representatives of it so as to allow their presence would irreparably harm her. She also alleged that the defendants were acting beyond their authority in seizing these materials and attempting to conduct destructive testing on them. On these grounds she sought a preliminary injunction which would enjoin the defendants from removing the materials from the jurisdiction of the circuit court of Cook County, enjoin them from performing any destructive testing until further order of court, order them to provide Houseknecht with a list of all proposed tests on those materials fourteen days prior to testing, and bar any testing unless all parties to the suit agreed to the testing or until further order of court.

On January 6, 1982, Midwest was given leave to intervene after it filed a petition for leave to intervene stating that it was the owner of the aerial platform at issue and that it reasonably believed it would be a party to one or more of the lawsuits arising out of that occurrence. In its complaint for temporary restraining order Midwest alleged that on December 11, 1981, following the occurrence, appellant had forcibly removed the aerial platform from the site without a proper warrant or other legal process. Midwest further alleged that appellant had proposed to conduct certain destructive testing on the platform some time after January 5, 1982. Included in that testing, according to a letter from appellant appended to the complaint, would be procedures involving cutting off the fracture tips on the platform and/or the steel rods, and removal of portions of the surface of the fracture tips. Midwest alleged that its expert consultants had not had an opportunity to inspect the materials held by appellant. Midwest further alleged, on information and belief, that: some of the testing would be conducted outside of Illinois where Midwest's experts would be unable to monitor it; certain of the proposed tests were unnecessary and needlessly destructive of critical portions of the fracture surfaces; certain of the proposed tests were unclear and vague in their nature and scope making it virtually impossible for Midwest and its experts to adequately determine the necessity and appropriateness of those tests; before destructive testing was undertaken certain preliminary nondestructive observations and measurements were necessary; and there were tests better able to generate the information and data sought by appellant. On these grounds Midwest sought an order granting it immediate access to the materials, enjoining appellant from performing destructive testing until Midwest met with it to develop and schedule a systematic testing plan, permitting Midwest to be present during all testing by appellant, and requiring that all testing by appellant be conducted in Illinois.

Also granted leave to intervene in this action were the following individuals and businesses, all parties to various actions arising out of the occurrence: Philip Rios, Gust K. Newberg Construction Company, Paschen Contractors, Incorporated, Murphy/Knight, a joint venture, and Carol Tyson.

Appellant filed a motion to dismiss the complaints of Midwest and Houseknecht on the grounds, inter alia, that the relief sought was barred by sovereign immunity. Attached to that motion was the affidavit of defendant Zagel. He stated that on December 11, 1981, he was directed by the Governor of Illinois to investigate the incident that occurred at the construction site. Zagel then directed Commander Thomas Schumpp of the Division of Criminal Investigation to conduct that investigation and further directed him to take custody of the aerial platform and to conduct engineering and metallurgical testing on it in order to determine the cause or causes of the fall of that platform. Zagel further stated that it was his "belief and opinion" that the investigation could not properly be completed without the performance of additional tests upon the platform and other items. Also attached to the motion was the affidavit of Edward Cisowski, a special agent of the Illinois Department of Law Enforcement, Division of Criminal Investigations. He stated that the materials in question were received from the Chicago Police Department and the Cook County Medical Examiner's Office on December 14, 1981, with the permission of the appropriate officials of those offices. He denied that any employee of the Department of Criminal Investigations had seized or taken possession of any materials from the construction site.

The circuit court scheduled and held a hearing restricted solely to the issue of the court's jurisdiction to enjoin the activities of the defendants. However at that hearing counsel for appellee Houseknecht also moved for the entry of a temporary restraining order. The hearing consisted only of legal argument on the question of the jurisdiction of the court to enjoin the defendants; no evidence was presented. In announcing its determination of this issue the court indicated that it had found that defendants lacked the authority to investigate the accident at issue and for that reason the court had jurisdiction to enjoin elements of that investigation. In a written order dated February 5, 1982, the court denied the motion to dismiss. It also entered a temporary restraining order which: temporarily restrained appellant from conducting any destructive testing on the aerial platform and steel rods; temporarily restrained appellant from removing those materials from the jurisdiction of the court; gave appellees the right to inspect those materials; and gave appellees the right to move for a "permanent injunction" after the expiration of the temporary restraining order. The order specified that it was to remain in force for 10 days. However on February 10, 1982, an agreed order was entered stating that the order of February 5 was to remain in full force and effect until further order of the court.

I

As we have noted the circuit court found that appellant lacked the authority to investigate the accident at issue and for that reason found that the court had jurisdiction to enjoin elements of that investigation. Appellant contends the court erred in finding this lack of investigatory authority and thus the court's orders must be vacated.

We agree that the court erroneously found a lack of investigatory authority in the appellant. Among the powers and duties given by statute to the Department of Law Enforcement are the following:

"4. To (a) investigate the origins, activities, personnel and incidents of crime * * * (c) employ skilled experts, scientists, technicians, investigators or otherwise specially qualified persons to aid in preventing or detecting crime, apprehending criminals, or preparing and presenting evidence of violations of the criminal laws of the State, (d) cooperate with the police of cities * * * in ...


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