Powers v. Doll

2022 IL App (2d) 210007

202 N.E.3d 980

460 Ill.Dec. 960

Thomas POWERS, Plaintiff-Appellant,

v.David DOLL, in His Official Capacity as Winnebago County Public Defender, and Jacob Rubin, in His Official Capacity as Winnebago County Assistant Public Defender, Defendants-Appellees.

No. 2-21-0007

Appellate Court of Illinois, Second District.

Filed March 17, 2022

Thomas Powers, of Rushville, appellant pro se.

J. Hanley, State's Attorney, of Rockford (John P. Giliberti, Assistant State's Attorney, of counsel), for appellees.

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.

¶ 1 We consider in this appeal whether an individual presently committed under the Sexually Violent Persons Commitment Act (SVP Act) ( 725 ILCS 207/1 et seq. (West 2012)) may file suit for legal malpractice without first alleging that he is not, in fact, a sexually violent person (SVP). We hold that he may not.

¶ 2 I. BACKGROUND

¶ 3 In 2001, a jury found plaintiff, Thomas Powers, guilty of attempted aggravated criminal sexual assault with a weapon ( 720 ILCS 5/8-4(a), 12-14(a)(1) (West 2000)). Powers was sentenced to 25 years’ imprisonment, and we affirmed his conviction and sentence on direct appeal ( People v. Powers , No. 2-01-0496, 297 Ill.Dec. 210, 836 N.E.2d 941 (2003) (unpublished order under Illinois Supreme Court Rule 23 )). In 2007, we held that Powers was entitled to withdraw his notice of appeal from the second-stage dismissal of his postconviction petition ( People v. Powers , 376 Ill. App. 3d 63, 315 Ill.Dec. 419, 876 N.E.2d 731 (2007) ). The case returned to the circuit court, and we have no record regarding what occurred, if anything, on remand. Nevertheless, Powers likely served out his criminal sentence.

¶ 4 In May 2020, Powers filed his pro se "Complaint for Legal Malpractice" against defendants, David Doll and Jacob Rubin, his former attorneys. In this appeal, we take what limited information we can from Powers's pro se complaint, apply the relevant statutory authority, specifically the SVP Act, and sketch out what we believe Powers has alleged. We note, too, that although Powers's complaint was typed in all capital letters, we will quote from it in sentence case for the reader's convenience. We also take Powers's allegations as true at this juncture. See Skaperdas v. Country Casualty Insurance Co. , 2015 IL 117021, ¶ 44, 390 Ill.Dec. 94, 28 N.E.3d 747.

¶ 5 In 2012, before Powers's sentence was terminated, the Attorney General filed a petition to have Powers committed under the SVP Act, which initiated case No. 12-MR-419. On June 20, 2012, the circuit court hearing the petition appointed the public defender's office to represent Powers, and Assistant Public Defender (APD) Doll began to represent him. See 725 ILCS 207/30(e) (West 2012). On June 25, 2012, a probable cause hearing was held. See id. § 30(b). Powers alleged that Doll was completely unprepared for the hearing, failed to call an expert witness to rebut the testimony of the State's expert (though Powers does not say whom Doll should have called), failed to depose "this doctor" (again unnamed) consistent with Powers's request, and "refused to order a ‘PPG’ "—or, penile plethysmography —"to scientificly [sic ] prove whether [Powers] suffered from a disorder of sexual arousal to ‘nonconsenting’ females." Powers also faults Doll for not understanding that SVP proceedings are civil in nature (id. § 20) on one hand, and on the other asserts that Doll should have filed a "speedy trial" demand (which is inapplicable in noncriminal proceedings (see 725 ILCS 5/103-5 (West 2012) ). These "failure[s]" caused Powers to dispense with Doll's services "due to the court's refusal to appoint an effective attorney."

¶ 6 Powers began representing himself pro se on October 11, 2012. Powers was ultimately found to be an SVP and has resided at the Illinois Department of Human Services facility in Rushville ever since.

¶ 7 On April 2, 2015, the circuit court reappointed the public defender's office to represent Powers. (Although Powers does not say, we assume that it was either for a petition by Powers for reexamination by a court-appointed expert ( 725 ILCS 207/55 (West 2012) ) or for conditional release (id. § 60).) At this point, APD Rubin began representing Powers, but Powers was "unaware" that Doll was Rubin's supervisor. (Doll became the county's chief public defender in 2016.)

¶ 8 Meanwhile, Rubin "failed to communicate" with Powers and further failed to "do adequate research," "perform discovery," or understand that the SVP Act is "civil in nature." Rubin also "failed to inform or obtain [Powers's] consent," has not "follow[ed] [Powers's] instructions," secured Powers's "release," or compelled the State to respond to Powers's "pro se discovery." Powers asserts that "Doll[ ] is directly responsible for Rubin's actions" and that these failures are "common practice" in the public defender's office's representation of individuals under the SVP Act. This has all "caused an ongoing continuous deprivation of [Powers's] liberty to perfect his release from unlawful detention."

¶ 9 Powers noted that on January 4, 2017, he "recused" Rubin and represented himself pro se. He then obtained an evaluation by Dr. Diane Lytton, who would opine that Powers is not a sexually violent person. Rubin was then reappointed by the trial court in June 2019, although Powers does not relay the circumstances under which Rubin was reappointed or the proceedings that were occurring. Powers laments that Rubin was "unprepared" for a "February and March 2020 hearing on motion in limines [sic ]" and failed to object to the State's motion in limine. Powers further asserts that he has a "speedy trial demand" on file and that Rubin has inexplicably caused further delay, over Powers's objection. Citing Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Powers accused Rubin of deficient performance.

¶ 10 In his prayer for relief, Powers asked for (1) a declaration that Doll and Rubin "have a duty" to him, (2) a court order mandating that the public defender's office create "a separate division *** for ‘SVP’ cases," "actual costs" for any "undue delay past ‘120’ days," court costs, and any further relief to which Powers is entitled.

¶ 11 Defendants, represented by the county's state's attorney, filed a motion to dismiss Powers's complaint, pursuant to section 2-619 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619 (West 2020) ). Specifically, defendants asserted that the circuit court lacked subject matter jurisdiction (id. § 2-619(a)(1) ) because Powers was still committed pursuant to an ongoing SVP order and further that his malpractice complaint was not filed within the one-year limitations period (id. § 2-619(a)(5) ) applicable to public defenders as county employees ( 745 ILCS 10/8-101 (West 2020) ). According to defendants, Powers had knowledge of the facts supporting his claims as late as January 4, 2017, when he discharged Rubin as counsel, yet waited until May 29, 2020, to file his complaint.

¶ 12 In an unverified response to defendants’ motion, Powers asserted that Rubin's representation of him ended May 20, 2020 ("after causing a 300[-]day delay"), and therefore his complaint filed on May 29, 2020, was timely.

¶ 13 Defendants thereafter filed an amended motion to dismiss, which noted that, under the Public and Appellate Defender Immunity Act, defendants have qualified immunity, "except for willful and wanton misconduct." 745 ILCS 19/5 (West 2020). Defendants’ amended motion stated that Powers's allegations "clearly go to" defendants’ representation of him; but the motion failed to assert that Powers failed to allege willful and wanton misconduct.

¶ 14 In any event, the circuit court held a hearing, at which Powers appeared remotely. The court then entered an order granting defendants’ motion to dismiss, finding that (1) Powers's claims "up to Januarry [sic ] of 2017 are barred by the statute of limitations"; (2) Powers's claims concerning Rubin's representation "are dismissed as there is another case pending, [ ]12 MR 419, involving the same claims"; and (3) "[d]efendants have immunity as state actors." Powers's motion to reconsider was denied, and he filed a timely notice of appeal.

¶ 15 II. ANALYSIS

¶ 16 The SVP Act authorizes the involuntary civil commitment of a person adjudged to be an SVP, for "control, care and treatment until such time as the person is no longer a sexually violent person." 725 ILCS 207/40(a) (West 2018). The SVP Act defines an SVP, as a person who has been convicted of a sexually violent offense and suffers from a mental disorder that makes it substantially probable that he will engage in acts of sexual violence. Id. § 5(f).

¶ 17 As noted, defendants moved to dismiss under section 2-619 of the Code. A section 2-619 motion to dismiss admits the legal sufficiency of a complaint but raises defenses that defeat its allegations. See People v. Conley , 2020 IL App (2d) 180953, ¶ 8, 442 Ill.Dec. 603, 160 N.E.3d 176 (discussing civil procedure in the analogous context of sexually dangerous persons’ litigation). One such defense is "[t]hat the action was not commenced within the time limited by law." 735 ILCS 5/2-619(a)(5) (West 2020). Another is that there is an "affirmative matter"—such as a public official's tort immunity—that defeats the claim. Id. § 2-619(a)(9).

¶ 18 The problem here is that none of the defenses are clear-cut because none of Powers's allegations are clear-cut or well-pled. On this score, the circuit court's dismissal order is puzzling. The court dismissed his complaint partly because it was untimely, partly because it "involv[ed] the same claims" as his "pending" SVP proceedings, and partly because both defendants have tort immunity. None of those rationales were quite right.

¶ 19 For example, it is impossible to figure out when Powers's claims began to accrue because it is unclear from his complaint on what date Doll or Rubin committed an...