Date: 11-07-2011

Case Style: Robert E. Taylor, Sr. v. Police Board of the City of Chicago

Case Number: 2011 IL App (1st) 101156

Judge: Garica

Court: Appellate Court of Illinois, First District, Sixth Division on appeal from the Circuit Court, Cook County

Plaintiff's Attorney:

Defendant's Attorney:

Description: ¶ 1 Plaintiff Robert E. Taylor, Sr. appeals the decision of the Police Board of the City of
Chicago (Board) discharging him from his position as a Chicago police officer for committing
perjury in violation of Rule 1 of the Chicago Police Department (Department), which prohibits
"[v]iolation of any law or ordinance," and for making false statements before two different
tribunals in violation of the Department's Rule 2, which prohibits "[a]ny action or conduct which
impedes the Department's efforts to achieve its policy and goals or brings discredit upon the
Department." Chicago Police Department Rules and Regulations, art. v, Rs. 1,2 (1973)
No. 1-10-1156
(Published Online 2011). Taylor contends the Board's prior disciplinary action against him for
bigamy, in which he was found not guilty, precludes the instant action based on res judicata. We
find the bigamy charges stemmed from a different group of operative facts than the perjury and
false statements charges for res judicata purposes. Taylor also argues he was not guilty of
perjury because the allegedly perjurious testimony was not material to the proceeding in which it
was given. In a criminal proceeding involving charges of harassment against his second wife,
Taylor falsely stated that he did not testify in a divorce proceeding involving his first wife. We
agree with Taylor that whether he testified in the prior divorce proceeding had no bearing on the
issues in the criminal proceeding involving a charge of criminal harassment against his second
wife. Because the false testimony was not material to the disposition of the criminal proceeding,
Taylor did not commit perjury. However, the Board's decision that Taylor knowingly made false
statements in that criminal proceeding and in the divorce proceeding involving his first wife was
not against the manifest weight of the evidence. We do not disturb the Board's conclusion that
Taylor violated the Chicago Police Department's Rule 2. We reverse in part and remand for
reconsideration of the appropriate punishment based solely on the violations of Rule 2.
¶ 2 BACKGROUND
¶ 3 Taylor was a Chicago police officer from October 23, 1973, until his discharge on June
19, 2008. During that time he received over 20 honorable mentions for his work with the
Department, a commendation from the Department for bringing credit to the Department, and a
letter from the Chicago Transit Authority commending his work. He was, however, subject to
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six disciplinary actions, including three episodes of suspension without pay for failure to attend
court in 2004 and a reprimand for engaging in a preventable accident that same year.
¶ 4 Taylor and Tamela R. Baker were married in 1982, and Robert (Robbie) E. Taylor III was
born to the marriage. Taylor and Tamela lived together in Chicago until Tamela moved to
Sikeston, Missouri, with Robbie in 1995. According to Taylor, he hired an attorney to secure a
divorce from Tamela and assumed the attorney did so while Taylor made frequent trips overseas
to serve in the United States Air Force Reserves.
¶ 5 In November 2002, Taylor and Bridgette A. Jones applied for a marriage license. Taylor
indicated in the application that he had never before been married. He and Bridgette were
married in December 2002.
¶ 6 In January 2004, Taylor filed a petition for dissolution of his marriage to Tamela.
Although he knew Tamela lived in Sikeston, Missouri, and had spoken with Tamela and Robbie
on the telephone at the address where they lived, Taylor certified in the petition that he was
unaware of Tamela's "current residence or whereabouts." His counsel served Tamela with notice
of the divorce proceeding by publication. At a prove-up hearing on March 10, 2004, before
Judge Eileen Brewer, Taylor was asked, "So you just could not find out where she lives?" He
responded, "That's correct, your Honor." The judge then entered a judgment for dissolution of
marriage.
¶ 7 In August 2004, Taylor pressed criminal charges against Bridgette, alleging that after she
learned he was still married to Tamela while he was married to Bridgette, she damaged some of
his property and threatened in a telephone call that she would inform the Department that he had
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committed bigamy, which would jeopardize his employment. At a hearing on the charges before
Judge Gloria Coco, Bridgette's counsel asked Taylor on cross-examination about the divorce
proceeding before Judge Brewer in an attempt to challenge his credibility by establishing he had
falsely stated in the divorce proceeding that he was unable to locate Tamela to serve her with
notice of his petition for dissolution of marriage.
"Q. Do you remember Judge Brewer saying to you, 'Can
you tell me how you tried to let her know about this divorce?' Do
you remember her asking you that?
A. I never appeared in that court. A lawyer appeared in
that court.
***
Q. Is it your testimony that you did not appear in front of
Judge Eileen Mary Brewer on March 10, 2004, to prove up your
divorce against Tam[e]la? Is that your testimony?
A. A lawyer went in there. He did the case. I did not stand
in front of the Judge, as best I can recall.
***
Q. You could get in some trouble with the police
department for obtaining a divorce through perjured testimony,
would you not agree?
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A. I did not perjure - - I did not stand in front of the
Judge."
¶ 8 On October 4, 2005, the Department sought to discharge Taylor for committing bigamy
("Taylor I"), alleging he was married to both Tamela and Bridgette from December 2002 until his
divorce from Tamela was finalized in March 2004. After a hearing, the Board found Taylor not
guilty of bigamy because he "reasonably believed that he was legally eligible to marry
[Bridgette]."
¶ 9 In September 2007, the Department brought another disciplinary action seeking to
discharge Taylor ("Taylor II"), alleging that he violated Rules 1 and 2 of the Department's Rules
and Regulations. Rule 1 prohibits "[v]iolation of any law or ordinance," and Rule 2 prohibits
"[a]ny action or conduct which impedes the Department's efforts to achieve its policy and goals
or brings discredit upon the Department." Chicago Police Department Rules and Regulations,
art. V, Rs. 1, 2 (2011). The Department alleged Taylor violated Rule 1 by giving perjured
testimony in the criminal proceeding when he stated he never appeared or testified before Judge
Brewer in his divorce prove-up. The Department also alleged Taylor committed three violations
of Rule 2: (1) making the false statement during the criminal proceeding; (2) falsely stating on
his marriage license application with Bridgette that this would be his first marriage; and (3)
falsely certifying in the petition for dissolution of marriage regarding Tamela that he did not
know her whereabouts.
¶ 10 Taylor moved to dismiss the charges against him on res judicata and collateral estoppel
grounds. He contended the charges could have been brought against him in Taylor I. A hearing
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No. 1-10-1156
officer rejected Taylor's contentions. "The fact that both sets of charges arise from Officer
Taylor's earlier marriages does not mean the two sets of allegations arise from the same set of
operative facts. *** I cannot agree that the two sets of charges arise from the same set of
operative facts." The four violations proceeded to a hearing before the Board.
¶ 11 The Board held an evidentiary hearing on February 20, 2008, and March 11, 2008, at
which Taylor, Tamela, Robbie, and Bridgette testified. In a decision dated June 19, 2008, the
Board rejected Taylor's collateral estoppel argument, concluding "the issues in Taylor II *** are
totally different than the issue in Taylor I." As to his res judicata claim, the Board held that
"[Taylor's] perjury before Judge Coco did not arise from the same core of operative facts which
led to the charge that Respondent was married to two women at the same time." It ruled
similarly regarding the allegation that Taylor falsely stated that he did not know the whereabouts
of Tamela when he filed for divorce. The Board agreed with Taylor, however, that the allegation
that he falsely stated on the marriage application that he had never before been married was
barred by res judicata. It found this allegation arose out of the same core of operative facts that
gave rise to Taylor I and accordingly dismissed this charge.
¶ 12 After ruling on Taylor's motion to dismiss, the Board summarily concluded that Taylor
was guilty of violating Rule 1 by committing perjury and guilty of violating Rule 2 by (1) falsely
stating before Judge Coco that he had not appeared before Judge Brewer, and (2) falsely
certifying in the divorce proceeding that he did not know Tamela's location or whereabouts. The
Board did not explain its ruling that Taylor committed perjury during the criminal proceeding.
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No. 1-10-1156
¶ 13 On December 1, 2009, Taylor filed a petition for administrative review before the circuit
court of Cook County. In a written decision dated March 24, 2010, the court affirmed all of the
Board's findings. The court rejected Taylor's argument that the Board failed to prove each
element of perjury to establish a violation under Rule 1. The court concluded that whether the
elements of perjury were established presented questions of fact, citing People v. LeCour, 172 Ill.
App. 3d 878, 885 (1988), and United States v. Gaudin, 515 U.S. 506 (1995). The court noted
that such findings are entitled to "extreme deference" and are not subject to reversal unless
"clearly erroneous." As to the materiality element of perjury, the court explained:
"Whether or not Taylor had implemented divorce proceedings
against Tamela at the same time he was married to Bridgette would
tend to prove or disprove whether Bridgette's threats carried any
weight as to Taylor. The Board thus found Taylor's testimony
before Judge Coco to be relevant and material to those
proceedings. Given the deferential nature of this review, this Court
does not find the Board's conclusion to be against the manifest
weight of the evidence."
¶ 14 The court also held the Board properly found the false statement before Judge Coco and
the false statement about Tamela's whereabouts in the divorce proceeding constituted violations
of Rule 2. The court ruled the punishment of discharge based on the violations of Rules 1 and 2
was neither arbitrary nor unreasonable. "It is imperative to the Department to have police
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No. 1-10-1156
officers who are reliable witnesses and cannot be impeached at trial." The court denied Taylor's
petition for administrative review. This timely appeal followed.
¶ 15 ANALYSIS
¶ 16 Taylor insists that res judicata barred the Department's second disciplinary action because
the Department could have brought these claims in Taylor I. He contends the Board's rulings that
he violated Rule 1 by committing perjury and Rule 2 by making false statements were contrary to
the manifest weight of the evidence. The Board responds that res judicata does not apply
because "the bigamy charges and the false-statement charges did not arise from a single group of
operative facts" and its decision that Taylor violated Rules 1 and 2 was consistent with the
manifest weight of the evidence.
¶ 17 "As the reviewing court, we review the decision of the Board, not that of the trial court."
Daniels v. Police Board, 338 Ill. App. 3d 851, 858 (2003). We review the Board's decisions on
questions of fact against the manifest weight of the evidence standard, while we review its
decisions on questions of law de novo. City of Belvidere v. Illinois State Labor Relations Board,
181 Ill. 2d 191, 205 (1998). Mixed questions of fact and law are reviewed for clear error. Id.
¶ 18 Res Judicata
¶ 19 We agree with the parties that whether res judicata applies in the instant case presents a
question of law. Arvia v. Madigan, 209 Ill. 2d 520, 526 (2004). It was Taylor's burden to
demonstrate that res judicata applied. "The party seeking to invoke the doctrine of res judicata
bears the burden of proving that it applies." Hayes v. State Teacher Certification Board, 359 Ill.
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No. 1-10-1156
App. 3d 1153, 1161 (2005). The hearing officer, the Board, and the circuit court rejected
Taylor's claim that he met this burden.
¶ 20 In his main brief, Taylor stresses that res judicata applies not only to matters actually
decided, but also to issues that "could have been raised in the first proceeding." (Emphasis in
original.) See Bagnola v. SmithKline Beecham Clinical Laboratories, 333 Ill. App. 3d 711, 717
(2002). Taylor acknowledges the same test applies to issues that were decided and to those that
could have been decided. "For the doctrine of res judicata to apply, the following three
requirements must be satisfied: (1) there was a final judgment on the merits rendered by a court
of competent jurisdiction, (2) there is an identity of cause of action, and (3) there is an identity of
parties or their privies." River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 302 (1998).
The parties agree that the first and third elements were satisfied, as res judicata may be properly
invoked based on administrative proceedings such as Taylor I, which rendered a decision on the
merits and involved the same parties. Bagnola, 333 Ill. App. 3d at 717-18. The parties
vigorously dispute the second element, that the causes of action in Taylor I and Taylor II are
identical.
¶ 21 Illinois applies the "transactional" test to determine whether identity of cause of action
exists. River Park, 184 Ill. 2d at 310-12. "The 'transactional' test provides that the assertion of
different kinds or theories of relief still constitutes a single cause of action if a single group of
operative facts give rise to the assertion of relief." (Internal quotation marks omitted.) Id. at 307.
The transactional test is "the more liberal *** test for determining whether claims are part of the
same transaction." Id. at 310. In River Park, the court set forth the focus of the analysis to
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No. 1-10-1156
determine whether res judicata bars the second litigation. " '[T]o determine whether there is an
identity of causes of action between the first and second suits, we must look to the facts that give
rise to plaintiffs' right to relief, not simply to the facts which support the judgment in the first
action ***.' " Id. at 309-10 (quoting Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 338-39
(1996)).
¶ 22 Taylor argues there is an identity of the causes of action in Taylor I and Taylor II because
"petitioner's allegedly false statement in [the] January 2004 petition for dissolution of marriage
came in an effort to remedy the predicament[,] which was the subject of the Department's 2005
allegations, i.e. petitioner's being legally married to two women simultaneously." He contends,
"[T]he Department's allegation concerning petitioner's August 2004 testimony at Bridgette's trial
involved petitioner's allegedly false statements about the divorce proceedings petitioner initiated
to remedy that same predicament."
¶ 23 That there is some tenuous factual connection between the two causes of action, however,
does not establish a single group of operative facts. The operative fact in Taylor I was that
Taylor had two wives, whereas the operative facts in Taylor II are that Taylor lied while
divorcing the first wife and lied again while pressing criminal charges against the second. The
operative fact in Taylor I ceased to exist as of the March 2004 divorce between Taylor and his
first wife. The violations in Taylor II grounded on his false testimony at the criminal harassment
trial involving his second wife did not arise until September 2004. The "transaction" of being
simultaneously married to two women is not same as the "transaction" of divorcing the first wife
and of pressing criminal charges against the second. We agree with the Board that the
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No. 1-10-1156
transactions differ in "time, space, origin, [and] motivation." The operative facts of Taylor I and
Taylor II do not " 'form a convenient trial unit.' " River Park, 184 Ill. 2d at 312 (quoting
Restatement (Second) of Judgments § 24 (1982)); see also Saxon Mortgage, Inc. v. United
Financial Mortgage Corp., 312 Ill. App. 3d 1098, 1106 (2000) (res judicata did not bar action
where the transactions "took place during completely different time periods and could not have
arisen out of the same factual matters").
¶ 24 We conclude the instant administrative action was not barred by the administrative action
that concluded in 2005. Res judicata was never triggered.
¶ 25 Department Rules Violations
¶ 26 Even if this second administrative proceeding is not barred by res judicata, Taylor
contends the perjury charge fails on its merits because the Department failed to show his
statement at Bridgette's criminal hearing was knowingly false or, even if false, was material to
that hearing so as to constitute perjury. It is the Department's burden to establish that Taylor
committed perjury. Wagner v. Kramer, 125 Ill. App. 3d 12, 17 (1984) ("the department has the
duty to go into a hearing and prove its case" (internal quotation marks omitted)).
¶ 27 Taylor correctly acknowledges that we review the Board's finding that he made a
knowingly false statement against the manifest weight of the evidence as a question of fact.
Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 210 (2008).
("[A] reviewing court is limited to ascertaining whether [the administrative agency's] findings of
fact are against the manifest weight of the evidence.").
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No. 1-10-1156
¶ 28 The Board's conclusion that Taylor knowingly made a false statement was fully consistent
with the manifest weight of the evidence. Taylor averred three times that he did not appear in the
divorce proceeding involving Tamela, when in fact he had. On the record before us, there is no
question Taylor's testimony was false. Even if we credit Taylor's argument that one of the three
assertions was not completely false because he qualified his statement as one given "as best I can
recall," the other two statements were patently false. See People v. Columbo, 118 Ill. App. 3d
882, 968 n.21 (1983) (where the court noted that the witness "qualified her testimony *** by
stating, 'As far as I can remember' and 'Not that I recall' " in questioning whether intentional
misrepresentation occurred).
¶ 29 Also, Taylor testified before the Board, which placed the Board in the best position to
assess his claim that he did not know the statements he gave were false. See Fedanzo v. City of
Chicago, 333 Ill. App. 3d 339, 349 (2002) ("The administrative agency has the responsibility of
weighing evidence, determining credibility and resolving any conflicts in the evidence.");
Launius v. Board of Fire & Police Commissioners, 151 Ill. 2d 419, 427-28 (1992) ("It is not ***
the court's duty to weigh the evidence and then determine where the preponderance of the
evidence lies.").
¶ 30 Consistent with the manifest weight of the evidence, we conclude that Taylor, while
testifying in the criminal proceeding, falsely claimed that he did not testify before Judge Brewer.
We infer he did so to avoid being confronted with his dubious proclamation at his divorce proveup
that he did not know Tamela's location or whereabouts to justify service by publication.
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No. 1-10-1156
¶ 31 However, uttering a false statement under oath does not establish perjury. "A person
commits perjury when, under oath or affirmation, in a proceeding or in any other matter where by
law such oath or affirmation is required, he makes a false statement, material to the issue or point
in question, which he does not believe to be true." 720 ILCS 5/32-2(a) (West 2010). The dispute
between the parties on whether perjury was proved centers on the element of materiality. At oral
argument, the parties agreed that the issue of materiality turns on whether Taylor's assertion that
he did not appear in the divorce proceeding against Tamela was material to any issue or point in
the criminal proceeding involving Bridgette. Cf. 720 ILCS 5/32-2(d) (West 2010) (the
exemption for a peace officer's use of a false or fictitious name "shall not apply to testimony in
judicial proceedings where the identity of the peace officer is material to the issue" (emphasis
added)).
¶ 32 The respective position of the parties is premised on the issue of materiality constituting a
question of fact for the Board to resolve, subject to review against the manifest weight of the
evidence standard. We do not agree with the premise of the parties.
¶ 33 At best, the issue of whether Taylor committed perjury involved a mixed question of law
and fact. See United States v. Gaudin, 515 U.S. 506, 512 (1995) (the materiality element of
perjury "requires applying the legal standard of materiality *** to *** historical facts").1 "[A]n
1 We note the Board does not cite in its brief People v. LeCour, 172 Ill. App. 3d 878 (1988),
the case the circuit court cited for its "extreme deference" to the Board's perjury finding. The
absence of a cite is for good reason: LeCour stands for nothing more than the proposition that "[t]he
existence of a *** mental state is a question of fact," which is not an issue before us. Id. at 885.
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No. 1-10-1156
examination of the legal effect of a given state of facts involves a mixed question of fact and law
with a standard of review of 'clearly erroneous.' " Cinkus, 228 Ill. 2d at 211 (quoting City of
Belvidere, 181 Ill. 2d at 205). "[A]n administrative agency's decision is deemed 'clearly
erroneous' when the reviewing court is left with the definite and firm conviction that a mistake
has been committed." (Internal quotation marks omitted.) Cinkus, 228 Ill. 2d at 211.
¶ 34 Before we can review the Board's application of the law to the historical facts regarding
the false statements made by Taylor in the criminal proceedings involving Bridgette, we
determine in the first instance whether the "legal standard of materiality" (Gaudin, 515 U.S. at
512) has been met.
¶ 35 "Materiality is derived from the relationship between the proposition of the allegedly false
statement and the issues in the case. [Citation.] The test of materiality for an allegedly perjured
statement is whether the statement tends to prove or disprove an issue in the case." People v.
Acevedo, 275 Ill. App. 3d 420, 423 (1995). This determination "involves the relationship
between an allegedly false statement and the nature of the proceedings at which it is made."
People v. Rutledge, 257 Ill. App. 3d 769, 771 (1994). "In order to constitute perjury the
testimony involved must be shown 'by clear, convincing and satisfactory evidence to have been
*** material to the issue tried and not merely cumulative but probably to have controlled the
result.' " People v. Glanton, 33 Ill. App. 3d 124, 146 (1975) (quoting People v. Lewis, 22 Ill. 2d
68, 71 (1961)).
¶ 36 A close examination of the facts in Acevedo reveals the required connection between the
false statement and the "issue or point in question" in the proceeding in which the false statement
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No. 1-10-1156
was made. A witness in a first degree murder case was charged with perjury after the first degree
murder defendant was acquitted based on an alibi defense. Acevedo, 275 Ill. App. 3d at 421-23.
The Acevedo court rejected the perjury defendant's claim that "his alleged[ly] [false] statements
could not have been material to the State's attempt to discredit [the murder defendant's] alibi
defense." Id. at 423. The perjury defendant was found guilty based on his false testimony that he
denied telling an investigating officer that the murder defendant and others had stopped by the
perjury defendant's home " 'dressed in black with paint on their faces' " 5 to 10 minutes after he
heard shots and the shooting murder had occurred. Id. at 422. The Acevedo court affirmed the
conviction based on the perjury defendant's testimony that he denied telling the investigating
officer that the murder defendant was "within a few blocks of the murder minutes after it
occurred," which the court determined was material to issues in the murder case. Id. at 423.
¶ 37 Based on its reading of Acevedo, the Board contends it stands for the broad proposition
that materiality was established in the instant case because "a conviction of Bridgette would turn
almost entirely, if not entirely, on [Taylor's] testimony." We reject such a facile analysis of
materiality. In a case that pits a complaining witness against the defendant, it may be said that
anything that comes out of the complaining witness's mouth will decide whether the accused will
be convicted or not. That, however, does not make everything that is spoken by the complaining
witness at trial material to the complaining witness's charge against the defendant. Before a false
statement under oath can constitute perjury, the false statement must be "material to the issue or
point in question" in that proceeding. 720 ILCS 5/32-2(a) (West 2010). Other than its claim that
Taylor's false statement " 'could have influenced' the trier of fact," the Board fails to identify the
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No. 1-10-1156
"issue or point in question" that made the false statement material in the criminal harassment
proceeding.
¶ 38 That Taylor appeared in the earlier divorce proceeding, contrary to his testimony at the
criminal proceeding, had no bearing on whether Bridgette was guilty of criminal harassment.
See Rutledge, 257 Ill. App. 3d at 771 (finding of guilty of perjury was reversed where the
question of whether the defendant was "lying or telling the truth about his possession of cocaine
was immaterial" at the suppression hearing); Cf. People v. Columbo, 118 Ill. App. 3d 882, 968
(1983) (false testimony elicited during cross-examination that witness did not engage in specific
deviate sex acts was not subject to further cross-examination for impeachment purposes where
"deviate behavior *** was unrelated to the material issue of homicide").
¶ 39 Nor did the Board explain its rulings. The only explanation regarding Taylor's alleged
commission of perjury is the one offered by the circuit court, which the Board appears to have
adopted before us. The court stated: "Whether or not Taylor had implemented divorce
proceedings against Tamela at the same time he was married to Bridgette would tend to prove or
disprove whether Bridgette's threats carried any weight to Taylor." However, that Taylor had
commenced divorce proceedings was never a point of contention in the criminal proceeding.
Taylor fully admitted divorce proceedings had been commenced in his testimony before Judge
Coco. It is an indisputable fact that Taylor divorced his first wife in March 2004 and the criminal
harassment trial did not take place until August 2004.
¶ 40 Nor is Taylor's statement about whether divorce proceedings had been commenced a
subject of the inquiry before the Board in the instant proceeding. That a finder of fact could view
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No. 1-10-1156
that Taylor had implemented divorce proceedings against Tamela as somehow tending "to prove
or disprove whether Bridgette's threats carried any weight to Taylor" is no substitute for a legal
showing of materiality that Taylor's false statement influenced the outcome of the criminal
harassment trial as the circuit court seemed to infer from the Board's finding of perjury. See
Rutledge, 257 Ill. App. 3d at 771 (the court reversed finding of guilty of perjury where the truth
or falsity of the defendant's statement that he did not possess cocaine "was immaterial" at the
suppression hearing).
¶ 41 Nevertheless, the Board argues that the testimony was material because "[t]estimony
about whether he had testified truthfully in another court bore on his credibility." The case upon
which the Board relies, People v. Olinger, 176 Ill. 2d 326 (1997), is inapposite to the proposition
for which it is cited. The Board correctly points out that the Olinger court observed, "[T]he
'jury's estimate of the truthfulness and reliability of a given witness may well be determinative of
guilt or innocence ***.' " Id. at 345 (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)). That
is hardly a momentous statement. Nor do we find in that statement any support that materiality
was demonstrated in this case. It is well established that credibility of a witness may turn on
nothing more than the demeanor of the witness, which is hardly a substitute for a showing of the
materiality of an admittedly false statement on the issue or point in question in the underlying
proceeding to establish perjury as compelled by statute. 720 ILCS 5/32-2(a) (West 2010).
¶ 42 Also, the context of the Olinger case places it outside of the context of this case. Unlike
in this case, the defendant in Olinger was not an alleged perjurer. The Olinger defendant was a
postconviction petitioner seeking an evidentiary hearing grounded on the State's alleged
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No. 1-10-1156
"knowing use of perjured testimony [by another individual] to obtain a criminal conviction." Id.
Under the circumstances where the State is accused of using false evidence, "the [United States
Supreme] Court has imposed a 'strict standard of materiality.' " People v. Coleman, 183 Ill. 2d
366, 392 (1998) (quoting United States v. Agurs, 427 U.S. 97, 103 (1976)). That standard
applies because it was "the most lenient to the defendant." Id. No such standard applies here to
support the Board's finding.
¶ 43 In the instant case, the Department bore the burden of proving perjury. Wagner, 125 Ill.
App. 3d at 17. The defendant in Olinger, who was at the second stage of a post-conviction
proceeding, had the burden to make a substantial showing that his constitutional rights were
violated. Such a showing would entitle him to an evidentiary hearing, at which he would have to
prove by a preponderance of the evidence that perjury actually occurred and the State suborned
the perjury. Olinger, 176 Ill. 2d at 342. The holding in Olinger favored the criminal defendant's
protection, not his conviction. Id. at 352 (granting the defendant an evidentiary hearing to
determine whether his due process rights had been violated). Olinger provides no support to the
Board in the instant case.
¶ 44 The Board cites no case law, nor have we found any, to support the proposition that a
defendant may be convicted of perjury for making a false statement that is substantively
irrelevant in the proceeding in which the statement is made based solely on a claim that the false
statement places the defendant's credibility at issue. In our judgment, a false statement that bears
solely upon on a defendant's credibility is no showing at all of the statement's materiality in the
proceeding in which it was uttered. By the Board's logic, any untrue statement by a criminal
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No. 1-10-1156
defendant made under oath at trial would open that defendant to a charge of perjury simply
because a claim by the defendant, if proved to be untrue, is damaging to the defendant's
credibility. Such logic would expand the definition of materiality in the context of proving
perjury to the point of being meaningless. See State Building Venture v. O'Donnell, 239 Ill. 2d
151, 160 (2010) (statute should be construed so that no term is rendered "meaningless or
superfluous").
¶ 45 We find support in our position in the opinion in Rutledge, where the Third District
addressed whether a defendant was properly found guilty of perjury for allegedly lying at a
suppression hearing about possessing cocaine that the police claimed to have found in his pocket.
Rutledge, 257 Ill. App. 3d at 771. The court found his statement concerning his possession of
cocaine immaterial to the suppression hearing because the issue or point in question at the
hearing was whether the police search was illegal. Id. at 770. The court rejected the circuit
court's ruling that the "statement was material since it bore upon his credibility" as sufficient to
uphold a perjury conviction. Id. at 769. "The issue at the suppression hearing was whether the
police violated the defendant's fourth amendment rights by subjecting him to an illegal search.
Therefore, whether Rutledge was lying or telling the truth about his possession of cocaine was
immaterial at that hearing." Id. at 771. Thus, that a sworn statement may bear upon the speaker's
credibility does not ipso facto render the statement "material to the issue or point in question" in
the underlying proceeding to establish perjury. See Columbo, 118 Ill. App. 3d at 968 (the
derivative issue of perjury was not proved where the false statements were not material to the
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No. 1-10-1156
issue in question and where no showing was made that the facts were "intentionally
misrepresented").
¶ 46 Consistent with the holding in Rutledge, we are unpersuaded that Taylor's statement that
he did not appear at his divorce prove-up was material simply because, as the circuit court
inferred, it had some bearing on Taylor's credibility during the criminal proceeding. The Board
has not demonstrated that Taylor's admittedly false statement " 'probably *** controlled the
result' " of the criminal proceeding against Bridgette. Glanton, 33 Ill. App. 3d at 146 (quoting
Lewis, 22 Ill. 2d at 71).
¶ 47 We conclude that Taylor's denial that he was present at his divorce prove-up was not
material to any issue or point in question in the underlying criminal harassment proceeding. As
such, we conclude the issue of the sufficiency of the showing of the facts of this case presents a
question of law based on the Board's claim is that materiality is demonstrated when the false
statements can be said to have impacted the witness's credibility. Rutledge, 257 Ill. App. 3d at
771. We review questions of law de novo. City of Belvidere, 181 Ill. 2d at 205.
¶ 48 Under de novo review, we reverse the Board's determination that Taylor's false statement
at the criminal proceeding constituted perjury. Even if the Board's determination is subject to the
clearly erroneous standard of review based on the application of law to the historical facts, we
find the Board's ruling that Taylor committed perjury, which it issued without disclosing its
reasoning, was clearly erroneous. Taylor did not commit perjury because the alleged perjurious
statements were immaterial to the outcome of the criminal harassment proceeding.
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¶ 49 Taylor contends the Board also erred in holding he violated Rule 2, which prohibits
"[a]ny action or conduct which impedes the Department's efforts to achieve its policy and goals
or brings discredit upon the Department." Chicago Police Department Rules and Regulations,
art. v, R. 2 (2011); see Rodriguez v. Weis, 408 Ill. App. 3d 663, 664 (2011). He argues the record
contains no evidence he lied about the divorce proceeding or about his knowledge of Tamela's
address when certifying his divorce petition. As to his statements regarding the divorce
proceeding, we reviewed the Board's conclusion that Taylor lied at Bridgette's trial when he
falsely claimed that he did not testify before Judge Brewer at the beginning of this section and
upheld it. Also, Taylor admitted at the hearing before the Board that he was "aware that Tamela
Taylor lived in Sikesson [sic], Missouri," and he spoke with her and his son while they lived in
that same town. Tamela testified that Taylor called her at the telephone number of the home in
which she was living at the time; the couple's son Robbie testified Taylor called him at the same
home.
¶ 50 There is no basis to overturn the Board's finding that Taylor was untruthful when he
certified in the divorce petition that Taylor's "whereabouts are unknown to [him]." There is no
doubt that Taylor knew Tamela's whereabouts and could have readily discovered Tamela's
address had he desired to do so. As such, we agree with the Board's finding that Taylor lied
when he affirmed to Judge Brewer that he "just could not find out where [Tamela] live[d]." The
Board's finding that Taylor lied about his actual knowledge of Tamela's address or whereabouts
is consistent with the manifest weight of the evidence.
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No. 1-10-1156
¶ 51 We find the Board did not err in holding these lies constituted violations of Rule 2.
"Trustworthiness, reliability, good judgment, and integrity are all material qualifications for any
job, particularly one as a police officer." Village of Oak Lawn v. Illinois Human Rights Comm'n,
133 Ill. App. 3d 221, 224 (1985) ("lying from the beginning disqualified [the police department
applicant] from consideration for the position and made her an unfit employee for the Oak Lawn
Police Department").
"A police officer's credibility is inevitably an issue in the
prosecution of crimes and in the Chicago police department's
defense of civil lawsuits. A public finding that an officer had lied
on previous occasions is detrimental to the officer's credibility as a
witness and as such may be a serious liability to the department."
Rodriguez, 408 Ill. App. 3d at 671.
The Rodriguez court upheld the Police Board's discharge of plaintiff police officer for violating
Rule 2 where the officer "exhibited a lack of honesty by altering her return-to-work status reports
*** and then again by giving testimony under oath that the Board rightly found incredible." Id.
¶ 52 Though we affirm the violations of Rule 2, we deem it appropriate to remand this matter
to the Board to reevaluate the punishment imposed upon Taylor. See Basketfield v. Police
Board, 56 Ill. 2d 351 (1974) (per curiam). In Basketfield, our supreme court dismissed charges
that a police officer had committed unlawful acts, but sustained charges he violated police
regulations. Id. at 360-61. The court remanded the matter: "The most serious charges cannot be
sustained, and in fundamental fairness we believe that the sanction imposed in this instance
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No. 1-10-1156
might well differ were only the charges that have been sustained the basis for disciplinary
action." Id. at 361. We follow Basketfield.
¶ 53 While we reverse the Board's finding that Taylor committed perjury, we sustain the
charges that Taylor violated Department regulations. The lesser charges being sustained, we
direct the Board to reconsider its punishment of Taylor, without expressing any opinion as to
whether the proved violations of Rule 2 justify dismissal. See Abrahamson v. Illinois
Department of Professional Regulation, 153 Ill. 2d 76, 99 (1992) (reviewing courts defer "to the
administrative agency's expertise and experience in determining what sanction is appropriate").

* * *

See: http://www.state.il.us/court/Opinions/AppellateCourt/2011/1stDistrict/November/1101156.pdf

Outcome: ¶ 54 CONCLUSION
¶ 55 Res judicata did not bar this action because the Department's disciplinary action against
Taylor in an earlier administrative proceeding for bigamy arose out of a different group of
operative facts. The Rule 1 violation based on the allegation that Taylor committed perjury
cannot be sustained because Taylor's denial that he testified in the divorce proceeding involving
his first wife was not material to the issues in the criminal harassment proceeding against his
second wife in which he issued his denial. We affirm the Board's conclusion that Taylor's false
statements in the two different court proceedings violated Rule 2. We remand this matter to the
Board to determine whether a lesser punishment based solely on the Rule 2 violations is
warranted.
¶ 56 Affirmed in part and reversed in part; cause remanded.
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