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10/10/97 KARLA MORGAN v. JOSEPH S. DICKSTEIN

October 10, 1997

KARLA MORGAN, PLAINTIFF-APPELLEE,
v.
JOSEPH S. DICKSTEIN, M.D., AND EDWARD A. UTLAUT MEMORIAL HOSPITAL, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Bond County. No. 90-L-29. Honorable David R. Herndon, Judge, presiding.

The Honorable Justice Hopkins delivered the opinion of the court. Welch, J., concurs. Presiding Justice Kuehn, dissenting.

The opinion of the court was delivered by: Hopkins

The Honorable Justice HOPKINS delivered the opinion of the court:

Defendants, Joseph S. Dickstein, M.D. (Dr. Dickstein), and Edward A. Utlaut Memorial Hospital (the Hospital), appeal from the order of the Bond County circuit court granting a motion for change of venue filed by plaintiff, Karla Morgan. On appeal, we consider whether the trial court abused its discretion by granting the motion. We reverse and remand.

Plaintiff filed her complaint on November 13, 1990, in Bond County, Illinois, against defendants, claiming damages as the result of the birth of her stillborn daughter. The events alleged in the complaint all occurred in Bond County, the Hospital is located in Bond County, and plaintiff lives in Bond County. Dr. Dickstein lives in Montgomery County and has offices in both Bond County and Montgomery County. On December 8, 1994, plaintiff filed a motion for change of venue pursuant to section 2-1001.5 of the Code of Civil Procedure (735 ILCS 5/2-1001.5 (West 1994)), which provides in pertinent part as follows:

"(a) A change in venue in any civil action may be had when the court determines that any party may not receive a fair trial in the court in which the action is pending because the inhabitants of the county are prejudiced against the party, or his or her attorney, or the adverse party has an undue influence over the minds of the inhabitants.

(e) When a change of venue is granted, it shall be to some other convenient county to which there is no valid objection."

Plaintiff alleged in her motion for change of venue that she is a Caucasian female married to an African-American male, that her lawsuit against defendants arises out of events surrounding the birth of their mixed-race child, and that as "the result of the highly publicized and widely and commonly known activities of the Ku Klux Klan in the area, plaintiff feels she is unable to receive a fair trial at the Bond County Courthouse." Plaintiff attached to the motion her own affidavit and several newspaper articles concerning a KKK rally that had been scheduled and then cancelled for the Bond County area.

Both defendants filed responses objecting to any change of venue, pointing out that plaintiff had not complied with the statute, in that she did not file affidavits from "at least two other reputable persons residing in the county." 735 ILCS 5/2-1001.5 (b) (West 1994). Shortly thereafter, plaintiff filed affidavits signed by Christine Voss and Reba Voss. Christine's affidavit stated, in relevant part, that she owned the "Main Street Doll Shop, located across the street from the Bond County Courthouse in Greenville, Illinois," and that she was aware of the recent newspaper articles about and activities of the KKK in Bond County. Her affidavit further stated, "As a result of said publicity, publications and activity, I believe Karla Morgan cannot receive a fair trial in Bond County." Reba Voss's affidavit alleges the same facts and conclusions as stated in Christine's affidavit, except Reba owns a different business in Greenville, Illinois.

On January 5, 1995, the trial court entered an order granting plaintiff's motion and transferring the case to Madison County, Illinois. In its January 5 order, the court found that the KKK activities in Bond County and the publicity surrounding it made it "unlikely that the plaintiff could receive a fair trial in Bond County." The court acknowledged in its order that the attorneys for both defendants argued that the issue was premature since voir dire, the proper vehicle for determining juror prejudice, had not yet been conducted. The court rejected defendants' arguments and stated: "The Court finds it highly unlikely that it could obtain thoroughly candid responses from venire persons whether in open court or in chambers. Furthermore, the publicity about the original rally, later cancelled due to lack of need, only to be later scheduled again for next week[,] suggests to the Court that racial tensions will likely be running very high."

Both defendants filed motions to reconsider the transfer to Madison County. In support of the motions to reconsider, defendants submitted counteraffidavits, including the affidavit of Basil Sitzes, the KKK's Grand Titan. In Sitzes' affidavit, he stated that after meeting with Bond County officials prior to the rally which had been scheduled for Bond County, he "cancelled the rally because [he] did not find any racial problems justifying the rally." Defendants also filed the affidavit of Frank Thompson, who stated that he believed that "the vast majority of residents of Bond County would not be prejudiced against" a black person and that "a person can receive a fair trial in Bond County regardless of their race or religion."

Defendants also submitted the discovery depositions of Reba Voss and Christine Voss, the two persons who signed affidavits in support of plaintiff's request to transfer the case out of Bond County. Christine testified in deposition that she believed that plaintiff cannot receive a fair trial in Bond County because people single her out as the "white woman" who is married to "that black man." Christine based her opinion upon her feeling that the people of Bond County who know of plaintiff and who know that she is married to a black man will not be able to set aside their prejudice against plaintiff. Reba Voss admitted in her deposition testimony that she does not personally know any KKK members and that she does not know of any specific racial prejudice directed at plaintiff or her husband. Reba testified that she knows some people in the county who are very prejudiced and who would be unfair to plaintiff simply because plaintiff is a white woman who is married to a black man.

It is clear that the conclusions reached by both Christine and Reba are based upon their own personal experiences of living in Greenville, the county seat of Bond County. As accurate as their perceptions may be, however, they are speculative in that neither Christine nor Reba talked to the venire panel from which plaintiff's jury would be selected. It is entirely possible that the randomly selected venire panel will not contain any people who have any knowledge of or preconceived notions about plaintiff or her lawsuit.

In the course of the hearing on defendants' motions to reconsider, the court determined that plaintiff had not paid the cost of transferring the case to Madison County. Accordingly, the court found the January 5, 1995, order to be void. See 735 ILCS 5/2-1001.5(h) (West 1994). On March 7, 1995, the trial court entered an order transferring the case to St. Clair County. In deciding that plaintiff could not receive a fair trial in Bond County due to the prejudice of its inhabitants, the court adopted its reasoning from the January 5, 1995, order, ...


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