Bethany Krajelis May 23, 2014, 12:53pm

Calling a theory that prosecutor’s offices are part of the judicial branch “untenable,” the Illinois Supreme Court on Thursday said these offices must make their public records available under the Freedom of Information Act.

In a unanimous, 10-page opinion written by Justice Lloyd Karmeier, the high court reversed the ruling of the Second District Appellate Court that affirmed the dismissal of a reporter’s legal battle to obtain public records from the Kendall County State’s Attorney’s Office.

The lower courts, through slightly different analyses, agreed with the county’s argument that prosecutor’s offices are not public bodies subject to the FOIA, a state law aimed at improving public transparency and a tool commonly used by journalists to obtain records.

But, the Supreme Court said a determination that defines prosecutor’s offices as part of the judicial branch, which is exempt from the law, makes “no sense” because they have “long been recognized” as public bodies falling under executive branch, and “nothing in the text of the statute supports a contrary interpretation.”

The ruling stems from an ongoing legal battle between Larry Nelson, an employee of various media companies including Plano-based WSPY radio, and Kendall County.

It started in September 2010, when he submitted a request on the FOIA to Kendall County to inspect and copy emails and attachments sent and received by two assistant state’s attorneys during January of that year.

After Nelson was notified the county wouldn’t be able to respond within the requested time period, he asked for the Illinois Attorney General’s Public Access Counselor to review the matter, a process provided under the FOIA to ensure the law’s compliance.

The attorney general’s office, however, declined to take action, spurring Nelson to file suit in the Kendall County Circuit Court against the county; its administrator, Jeff Wilkins; and the two assistant state’s attorneys at the crux of his public records request, Michael Ready and Robert Dore.

The county and Wilkins sought dismissal, Nelson amended his suit to include some of his employers as plaintiffs and the county’s state’s attorney’s was allowed to intervene in the case. In November 2011, the circuit court dismissed Wilkins from the case.

As his suit proceeded, Nelson filed a new FOIA request to the state’s attorney’s office that sought the same emails he asked for in his previous request, as well as those from two more employees and the state’s attorney himself.

The office denied his request, saying it was exempt from the FOIA because prosecutor’s offices are part of the judicial branch. Nelson then brought a second suit in circuit court, but this one only named the office as a defendant.

The state’s attorney filed a motion to dismiss Nelson’s second suit, reiterating his claim that the office was beyond the reach of the public records law because it was part of the judicial branch. He further argued the suit was moot because his office had voluntarily produced nearly 3,000 pages of emails to Nelson and only withheld documents it was prohibited from disclosing.

In response, Nelson asserted that prosecutors are executive, not judicial officers, and are subject to the FOIA. He also claimed his action wasn’t moot because the state’s attorney continued to withhold documents without proving they were exempt under the act.

The circuit court in May 2012 granted the defendants’ motions to dismiss in both cases, determining that the prosecutor’s office didn’t have to disclose the requested records because it belonged to the judicial branch.

Nelson, as well as the other plaintiffs, appealed, focusing solely on their contention the lower court was wrong to determine the prosecutor’s office was exempt based on its finding it was part of the judicial branch.

The appellate court affirmed, although it didn’t say prosecutor’s offices fall under the judicial branch and instead, dubbed them as public bodies not subject to the FOIA.

When the matter reached the Supreme Court, the justices allowed the Illinois Broadcasters Association, the Illinois Press Association, the Better Government Association and the Attorney General of Illinois to file friend of the court briefs supporting the plaintiffs.

They also let the state’s attorneys of Cook and La Salle counties, as well as the Illinois State’s Attorneys Association, to file a friend of the court brief in support of Kendall County and its prosecutor’s office.

In its four-page analysis that focused on the act’s disclosure requirements and meaning of “public body,” the high court said while the lower courts “were persuaded” by the defendants’ judicial branch theory, “we do not believe it can be squared with the law.”

Karmeier explained that the “only connection” prosecutors have with the judiciary is “that the method of their selection, the qualifications for the office, and the compensation they receive are addressed in the final section of the Judicial Article of the Illinois Constitution.”

Although the court has “held that inclusion of State’s Attorneys in this part of the Constitution means that they are not subject to the particular provisions of the Executive Article of the Constitution” dealing with changes to compensation, it said “We have never suggested, however, that the office of State’s Attorney is in any way part of the judiciary.”

Such a characterization, the court held, would be “incompatible” with the Judicial Article.

Karmeier added that it “would also require that we jettison the substantial and well-established body of case law set forth earlier in this opinion which holds that State’s Attorneys exercise executive powers, and that the office of State’s Attorney is part of the executive branch of State government. This we will not do.”

The Supreme Court issued nine other opinions Thursday. They can be found on the court's website.

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