Appeal from the Circuit Court of Williamson County. No. 12-L-46 Honorable Brad K. Bleyer, Judge, presiding.
The opinion of the court was delivered by: Justice Welch
The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
JUSTICE WELCH delivered the judgment of the court, with opinion. Justices Stewart and Cates concurred in the judgment and opinion.
¶ 1 The plaintiff, Dorothy Kay Frank, appeals from the dismissal with prejudice, pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2010)), by the circuit court of Williamson County, of her complaint for malicious prosecution against the defendant, Charles R. Garnati, State's Attorney for Williamson County. The complaint, filed March 7, 2012, alleged that the defendant, while serving as the duly elected State's Attorney for Williamson County, filed a criminal information charging the plaintiff with having kidnapped her minor grandson, that the defendant knew at the time that the charge was not true and was not based on probable cause, and that he did so with the motive of inflicting harm upon the plaintiff. The complaint alleged that the defendant filed the criminal charge against the plaintiff "not because he sincerely believed that he had probable cause to support a charge of kidnapping against Plaintiff, but did so out of malice, arising from, and in retaliation for, prior conflicts with Plaintiff." The complaint sought compensatory and punitive damages for emotional distress and economic losses.
¶ 2 The defendant filed a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2010)), which allows a motion for involuntary dismissal when the plaintiff's claim "is barred by other affirmative matter avoiding the legal effect of or defeating the claim." The defendant's motion to dismiss asserted, in pertinent part, that the plaintiff's claim against him was barred by the doctrine of absolute prosecutorial immunity.
¶ 3 The plaintiff filed a response in which she argued that, because her complaint alleged that the defendant had acted out of "malicious motives," the defendant did not enjoy absolute prosecutorial immunity for his actions. Relying on Aboufariss v. City of De Kalb, 305 Ill. App. 3d 1054 (1999), the plaintiff argued that prosecutors enjoy only a qualified public official immunity which does not apply where the public official acts out of "malicious motives."
¶ 4 The circuit court granted the defendant's motion to dismiss, finding that the actions of the defendant were taken in his prosecutorial capacity and that the doctrine of absolute prosecutorial immunity applies to shield the defendant from the plaintiff's claim. The plaintiff appeals.
¶ 5 We review de novo the circuit court's decision granting the defendant's motion to dismiss under section 2-619(a)(9) of the Code of Civil Procedure. Joseph Construction Co. v. Board of Trustees of Governors State University, 2012 IL App (3d) 110379, ¶ 17. We must construe all pleadings and supporting documents in a light most favorable to the plaintiff. 2012 IL App (3d) 110379, ¶ 17. The precise issue before us is whether a state prosecutor enjoys, in his decision to initiate a prosecution, absolute immunity from malicious prosecutions suits or whether that immunity is subject to an exception where the malicious prosecution suit alleges that the prosecutor acted with malice.
¶ 6 The doctrine of absolute prosecutorial immunity has a long and widespread history in the common law of this country. In Imbler v. Pachtman, 424 U.S. 409, 420 (1976), the United States Supreme Court had its first opportunity to discuss prosecutorial immunity in the context of a claim brought under section 1983 of the Civil Rights Act of 1871 (42 U.S.C. § 1983 (1976)). The Court pointed out that federal courts of appeal are virtually unanimous in the view that a prosecutor enjoys absolute immunity from section 1983 suits for actions taken within the scope of his prosecutorial duties. 424 U.S. at 420. This immunity is derivative of the absolute immunity afforded to judges. 424 U.S. at 420.
¶ 7 In reaching its decision, the Court also discussed at length the long common law history in the state courts of such an immunity for a prosecutor's action in initiating a prosecution. The Court pointed out that absolute immunity for a prosecutor's action in initiating a prosecution has become the clear majority rule in the country. 424 U.S. at 421-422.
¶ 8 The Court discussed the public policy supporting absolute immunity for prosecutors in initiating a prosecution:
"The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties. These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions ...