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Kluppelberg v. Burge

United States District Court, N.D. Illinois, Eastern Division

March 24, 2015

JON BURGE, et al., Defendants

For James Kluppelberg, Plaintiff: Jonathan I. Loevy, LEAD ATTORNEY, Arthur R. Loevy, Gayle M. Horn, Michael I Kanovitz, Roshna Bala Keen, Tara Elizabeth Thompson, Loevy and Loevy, Chicago, IL; Joel H. Feldman, Law Offices of Joel H. Feldman, Chicago, IL.

For Jon Burge, Leonard Rolston, William Kelly, Detective Urbon, George Jenkins, Detective Nelson, Detective Vega, Detective W. Micek, Detective L. Tuider, William Alletto, Edwin Olivieri, Sergeant, Defendants: James Gus Sotos, LEAD ATTORNEY, Elizabeth A Ekl, Jaclyn L. Mcandrew, Jeffrey Neil Given, Jeffrey Robert Kivetz, Thomas F. Downing, The Sotos Law Firm, P.C., Itasca, IL.

For City of Chicago, The, Defendant: Daniel E. Reidy, LEAD ATTORNEY, Chaka M. Patterson, Kenton J. Skarin, Scott B. Elmer, Thomas Fredrick Rybarczyk, Jones Day, Chicago, IL; Liza Marie Franklin, LEAD ATTORNEY, City of Chicago, Department of Law, Chicago, IL; Marron Ann Mahoney, Illinois Appellate Court, Chicago, IL.


Joan H. Lefkow, United States District Judge.

Defendant City of Chicago has moved to bar reference to plaintiff James Kluppelberg's certificate of innocence (" COI" ) obtained under what will be referred to as " the Statute," 735 Ill.Comp.Stat. 5/2-702, which facilitates a wrongly convicted individual to obtain remedial compensation from the State of Illinois. For reasons stated herein, the motion will be denied.


The facts necessary to resolve this motion in limine are undisputed. In 1989, Kluppelberg was convicted of arson and murder in connection with a 1984 fire in Chicago. He was sentenced to life in prison. After the State moved to dismiss the charges against Kluppelberg by nolle prosequi in 2012, the Cook County Circuit Court vacated his conviction and released him from prison. ( See dkt. 202, ex. C.) After his release, Kluppelberg applied for a COI under the Statute. The Circuit Court of Cook County granted his application on August 5, 2013. ( See dkt. 188, ex. T.) The Illinois Court of Claims also ordered the State of Illinois to pay Kluppelberg $213,624, the maximum compensation he was entitled to under 705 Ill.Comp.Stat. 505/8(c). ( See id., ex. U.) Kluppelberg then filed this suit for malicious prosecution and deprivation of due process under 42 U.S.C. § 1983 against the City of Chicago (" the City" ) and certain Chicago police detectives and arson investigators. The City moved in limine to bar reference to Kluppelberg's COI in this suit.


A. 735 Ill.Comp.Stat. 5/2-702

The Statute, enacted in 2008, allows a person whose conviction is set aside to seek a COI from the court that convicted him. To obtain the certificate, a petitioner must prove by a preponderance of the evidence that (1) he was convicted of a felony and was sentenced to and served a term of imprisonment, (2) the conviction was reversed or vacated or was unconstitutional, (3) he is innocent of the offenses charged, and (4) he did not bring about his own conviction. 735 Ill.Comp.Stat. 5/2-702(g). Illinois courts have interpreted the Statute to require that the petitioner be found " actually innocent" rather than " not guilty." See, e.g. Rudy v. People, 984 N.E.2d 540, 543, 2013 IL App. (1st) 113449, 368 Ill.Dec. 594 (2013). A petitioner who receives a COI under the Statute is entitled to compensation in the Court of Claims. See 705 Ill.Comp.Stat. 505/8(c).

B. Precedent

The parties have cited two cases in which this court has directly considered the admissibility in a subsequent civil rights suit of a COI or the fact that a COI was denied.[1]

In Logan v. Burge, No. 09 C 5471 (N.D. Ill. filed Sept. 3, 2009), the court denied the defendants' request to bar reference to the plaintiff's COI. Order at 1, id., ECF Dkt. No. 423 (Oct. 19, 2012) (" Logan Order" ). The court found the certificate " relevant at least to the 'indicative of innocence' element of plaintiff's malicious prosecution claim, as well as to his damages." Id. It concluded that it was able to take judicial notice of the certificate's issuance and that it fell within the scope of the public records exception to the hearsay rule. Id. at 2, citing United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994).[2] Finally, the court rejected the defendants' contention that the certificate's admission would result in unfair prejudice, citing to a comparable case dealing with admission of a governor's pardon. Id. at 2 (citing Newsome v. McCabe, No. 96 C 7680, 2002 WL 548725, at *6 (N.D. Ill. Apr. 4, 2002) (ruling on motion for new trial that § 1983 plaintiff's pardon was correctly admitted because exclusion would have misled the jury).

A different judge of the court addressed a similar question in Fields v. City of Chicago, No. 10 C 1168, (N.D. Ill. filed Feb. 22, 2010), where the state court had denied the plaintiff's application for a COI. The defendants argued that the denial precluded the plaintiff from pursuing his malicious prosecution claim because he could not prove that the underlying criminal proceedings were terminated in his favor. Order on Motions Concerning Certificate of Innocence Proceeding at 2-3, id., ECF No. 551 (Mar. 10, 2014) (" Fields Order" ). The court rejected this argument, finding no authority to suggest that an unsuccessful COI petition precludes a plaintiff from proving favorable termination of the underlying criminal proceeding. Id. As part of its ruling, the court barred all evidence relating to the COI application at the liability phase of trial, citing two reasons pertinent here. Id. at 3. First, the denial of the certificate was not relevant to whether the criminal proceedings were terminated in the plaintiff's favor because the plaintiff was found not guilty at re-trial. Id. Second, the court could not take judicial notice of the denial of the certificate " because judicial notice cannot be used to end-run the ...

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