More McHenry County Blog

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
ZANE SEIPLER, ) Docket No. 08 C 50257
)
Plaintiff, ) Rockford, Illinois
) Wednesday, April 6, 2011
v. ) 2:30 o'clock p.m.
)
CAPTAIN ANTON CUNDIFF, et  al., )
)
Defendants. )

TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE P. MICHAEL MAHONEY
APPEARANCES:
For the Plaintiff: (No Appearance)
For the Defendants: JAMES G. SOTOS & ASSOCIATES, LTD.
(550 E. Devon,
Suite 150,
Itasca, IL 60143) by
MS. ELIZABETH K. BARTON
Also Present: MR. FRANK R. PHILPOTT
Court Reporter: Mary T. Lindbloom
211 South Court Street
Rockford, Illinois 61101
(815) 987-4486

(The following is from a tape-recording of proceedings:)
THE COURT: 08 C 50527, Seipler v. Cundiff. Good
afternoon.
MS. BARTON: Good afternoon, your Honor. Elizabeth
Barton for the defendant.
THE COURT: All right.
MR. PHILPOTT: Good afternoon, your Honor. Frank R.
Philpott, commonly known as Gus Philpott, appearing pro se.
THE COURT: Yes, and you filed a motion to quash the
subpoena.  Counsel, what's in the subpoena that you've asked for?
MS. BARTON: We've asked for any correspondence that
Mr. Philpott might have received from either the plaintiff, any
current or former McHenry County sheriff's deputies, a few
different other individuals that frequently make posts on the
blog that Mr. Philpott maintains, and also from Cal Skinner,
who's another blogger in McHenry County.
The reason why these blogs and the comments to the
blogs are important to our case is that these documents may or
may not be made by sheriff's deputies or people who are posing
as sheriff's deputies. It's become clear as we monitor these
blogs daily that certain information that's confidential to this
case or confidential to the sheriff's department has been
revealed either to Mr. Philpott or to any of the other bloggers
in the county.

THE COURT: Let's slow down. You want to be able to
look at any correspondence that he's done for a two or
three-year period of time with the named plaintiffs with any
sheriff's deputy of McHenry County and with what else?
MS. BARTON: And with -- there are one, two, three,
four other individuals.
THE COURT: And it's relevant because?
MS. BARTON: Because these people may have been giving
him information that's confidential in our lawsuit or that may
be -- that may come up in depositions. For instance, one of the
deputies was already deposed. He has since been released from
the sheriff's department for various reasons, and his
deposition --
THE COURT: I don't understand, counsel. It's not
information then you need to prepare your case that you're
looking for?
MS. BARTON: It is.
THE COURT: And how are you going to use this
information to prepare your case?
MS. BARTON: Well, we could either use it during
deposition testimony because some of the information is, for
instance, things that were said in the roll call room while
Mr. Seipler was employed or after his termination that is about
this case or the internal --
THE COURT: So, you're going to use it to impeach a
witness? What are you going to do with this stuff?
MS. BARTON: Well, they're not quite sure yet because
they haven't seen what is available to us yet.
THE COURT: So, you just want to -- you understand he's
not a party.
MS. BARTON: I do.
THE COURT: It's 27 months you've asked for.
MS. BARTON: From the beginning of the lawsuit. That's
correct.
THE COURT: Is there anything particular in his blog
 that you believe is relevant to the lawsuit that's necessary for
you to obtain information on?
MS. BARTON: There's information about what certain
deputies might have said during roll call that's relevant to the
pending internal investigation that's still confidential.
THE COURT: But you've told me the pending internal
investigation's irrelevant to this lawsuit.
MS. BARTON: It may or may not be irrelevant. We
haven't disclosed it yet.
THE COURT: Well, you took the position as far as
discovery that, in fact, it's irrelevant and put that rather
forcefully when I had to do the last discovery motion in regard
to the case. But let me try to focus this, okay?
Mr. Philpott, if you had done a blog and if you had put
in the blog, you know, I know who robbed the bank -- okay? I'm
not saying you did that. I'm not saying a bank was robbed. But
if that's in your blog, then, obviously, they can discover to
find out who robbed the bank and how do you know that. All
right?
MR. PHILPOTT: Yes.
THE COURT: That's fair. Because you can't withhold
information from litigants just because you're doing a blog.
On the other hand, counsel, this seems to me to be
awfully broad. I've got 27 months. I've got every piece of
material that he may have exchanged. You're looking into this
blog pretty thoroughly. You're looking into -- you know, you're
going to have to get more surgical than this and tell me what
you're after and why you're after it before I'm going to allow a
third-party to have to comply with the subpoena.
I'll give you one more try. Tell me what you're after.
MS. BARTON: Well, if I could just -- to be fair with
the internal investigation --
THE COURT: Yes.
MS. BARTON: -- in your last order -- I know that you
don't discuss the orders, but you did say that --
THE COURT: If you found information that was relevant,
you couldn't withhold it because -- but that doesn't mean I made
the internal -- I said if you found information -- that's good
law, counsel.
MS. BARTON: I understand.
THE COURT: That's 26(e).
MS. BARTON: That's exactly right. So, that's why I'm
saying that if there's information regarding that's pertinent to
the internal investigation, that Mr. Philpott may or may not
have --
THE COURT: No. The information would have to be
pertinent to this lawsuit, not just the internal investigation
to get to it.
MS. BARTON: Okay. There's also information about the
deputies at roll call who said on his blog or --
THE COURT: What date are we talking about? When
Mr. Seipler was still there or not?
MS. BARTON: When Mr. Seipler was still there.
THE COURT: And what did the deputy say, according to
the blog?
MS. BARTON: That Mr. Seipler was either making
allegations against certain deputies for racial profiling or
that he or she overheard other deputies telling the people in
the roll call room --
THE COURT: Why do you want to know about that?
MS. BARTON: Because Mr. Seipler was terminated for
complaining about racial profiling. So, it's important to know
who he complained to and who was aware of the allegations at the
time.
THE COURT: But you could ask Mr. Seipler that and have
at his deposition, haven't you?
MS. BARTON: We have.
THE COURT: So, why does this person here have more
information than Mr. Seipler's given you?
MS. BARTON: Well, we're looking for the identity of
the deputies that were making those statements in the roll call
room or anywhere else in the sheriff's department, and so far we
haven't been able to determine who those deputies are.
THE COURT: Mr. Philpott, it's your turn.
MR. PHILPOTT: Your Honor, the subpoena is very broad
sweeping, as you've already identified.
THE COURT: I agree. I've already got that point.
MR. PHILPOTT: There are 400 at least employees of the
McHenry Sheriff's Department and untold number of former
employees. The request is for any and all correspondence or
documents from any former and/or current employee of the
department. I have no knowledge of the roster of the
department. I don't know who the employees are. I don't know
who the former employees are.
THE COURT: Well, we can get to that, Mr. Philpott, but
don't worry about it. That's not going to happen. Anything
else you want to tell me?
MR. PHILPOTT: Certain named screen names are
unfamiliar to me in this request. And a 27-month period from
November 2008 to February 2011 involves a huge number of
articles.
THE COURT: So, this would be burdensome for you to do?
MR. PHILPOTT: Yes, sir.
THE COURT: All right. I'm going to quash the subpoena
as it's issued. Counsel, if you want to do a surgical subpoena,
if you believe that this person has certain information that is
relevant to this lawsuit that I have, I'll take a look at it,
but it should be directed at information that I can tell whether
or not it's reasonable and I can do the balancing that's
necessary, reasonably calculated to lead to discoverable
material versus the burden that's being placed on a third-party,
and the court does take into consideration that it's being
placed upon a third-party, as compared to a litigant in the
lawsuit or a party in the lawsuit.

You won your motion.

MR. PHILPOTT: Thank you, your Honor.
THE COURT: Have a great day.
(Which were all the proceedings had in the above-entitled
cause on the day and date aforesaid.)
I certify that the foregoing is a correct transcript from
the tape-recording of proceedings in the above-entitled matter.
__________________________
Mary T. Lindbloom
Official Court Reporter

Click to enlarge.

3-14-11

re 2010 PAC 6744

This is in reply to Ancel Glink's letter of April 22, 2010, in reply to my appeal of the location imposed by the Grafton Township Board on recording devices during meetings.

It should be noted first that Ancel Glink has been removed as Grafton Township Attorney by McHenry County Circuit Court Judge Michael Caldwell as a result of the litigation filed by Supervisor Linda Moore, which is mentioned in Ancel Glink's first paragraph.

See these stories about the court decision:

http://mchenrycountyblog.com/2010/12/11/judge-michael-caldwell-grants-linda-moore-day-to-day-operating-authority-of-grafton-township-power-to-hire-and-fire-employees-and-township-attorney-%E2%80%93-part-1/

http://mchenrycountyblog.com/2010/12/12/grafton-township-court-order-fires-pam-fender-and-ancel-glick-part-2/

The entire decision can be found here:

http://mchenrycountyblog.com/2010/12/11/the-entire-37-page-decision-on-linda-moore-v-grafton-township-trustees/

I am amused that Ancel Glink refuses to refer to me as a member of the press, instead conferring that title on the Northwest Herald and the Daily Herald, which rarely send reporters to cover Grafton Township meetings. McHenry County Blog has written more articles on Grafton Township meetings and court hearings than both the NW and Daily Heralds combined.

I would contend that the method of publishing article about a local governmental body is irrelevant to your consideration of what constitutes a member of the press as described in the First Amendment.

McHenry County Blog consists of photo journalism. Virtually every article has an image, usually photos of the event being reported upon.

Unlike print reporters who can sit in one spot and take notes about a meeting, a photographer needs to be able to see the meeting from various vantage points so that he (in my case) can get a suitable picture to go with the story.

Ancel Glink mixes where I was in two meetings, but contends in both that my taking of photos was disruptive.

In the smaller meeting room, I was trying to obtain a photo of the four township trustees, which could not be obtained because an audience member and ally of the trustees was between my second or third row seat and the trustees, who were sitting along the opposite side of the wall. To get a clear shot, I had to stand up and move along the side of the opposite side of the wall.

During that time, Trustee Betty Zirk objected to my taking photos and, seemingly having been addressed by her, I replied that after I got a clear (or some similar word) shot, I wouldn't need more.

It was a minimal disruption at worst and allowed me to obtain a photo of all four trustees, which I used in the story.

In the other meeting referenced, held in a much larger room, there were numerous audience members. I wished to get a shot of what they looked like from the public officials' side of the room. There were easily ten feet between the table nearest their side of the room and the side of the room. I fail to see how my taking such photos were disruptive.

There is also one trustee, Gerry McMahon, who refuses to face the audience. All that can be seen of him is his back. To get a photo of this frequently bombastic trustee's arm gestures from the front, one must stand behind the other trustees. While this is impossible in the smaller room less used room, it is no problem in the larger venue.

Now, the rule that the Trustees seek to impose, is that those taking photographs or recording what is said at a meeting must sit in or stand behind the last row of chairs.

That is, on its face, discriminatory.

No reporter taking notes with a pen or pencil is required to it in or stand behind the last row of chairs.

However, a reporter using a tape recorder, think radio reporter, would be forced to observe from a position in th room where the sound level would be worse than sitting in the front row.

It should be noted that the Township Clerk is allowed to tape record the meeting from her spot at the table with the other elected officials. I would contend this is another form of discriminating in favor of a public official, while discriminating against a member of the public and that such discrimination should be rejected.

Now, let me comment upon the real reason this rule was passed.

Township Supervisor Linda Moore' husband, David Moore, has been recording meetings and posting the unedited results on the internet.

The Trustees are so disturbed that the public may see for themselves how the meetings are run and who says what at what volume level, that they wish to banish David Moore's completely unobtrusive, really small recording device from the front row where he had been sitting prior to the rule's adoption to behind the last row of chairs.

You can see from the photo in the article about the appeal to your office from the meeting when the motion was made that David Moore's video device was lower than his head. Only someone interested in misleading you would charge that it was blocking anyone's view.

See photo in the following article:

http://mchenrycountyblog.com/2010/04/21/attorney-general-probing-grafton-township-trustees-%E2%80%9Cback-of-the-room%E2%80%9D-instruction-for-photographer-and-anyone-videoing-or-tape-recording-meetings/

You might be interested in seeing my article and a video taken by David Moore of the meeting when the “to the back of the room” motion was made. It is here:

http://mchenrycountyblog.com/2010/04/21/grafton-township-%E2%80%9Cto-the-back-of-the-room%E2%80%9D-photographers-motion/

See about 6 minutes and 20 seconds in where Gerry McMahon specifically mentions David Moore's name. You can also see how much space there is behind the tables at which the officials sit and the sides of the room.

This is as good a place as any to point out that requiring people taking photos or making audio and/or video recordings to sir in the back row or stand behind the last row of chairs may be in violation of the Americans with Disabilities Act. One cannot get a good view of the officials by sitting in the back row and some people can't stand for the four hours some of these meetings have taken.

As you can see from the photo in the article above, there is no way his small recording machine could block the view of members of the public behind him anymore than a tall person's head would. To the best of my knowledge, neither the Trustees nor Ancel Glink propose seating short people up front and tall people in the back. It is first come, first serve at public meetings.

The bombastic Trustee, Gerry McMahon, specifically mentioned David Moore as the person at whom he was aiming the new rule.

One can understand why Trustee McMahon would not want constituents to get a good view of his behavior during meetings.

Ancel Glink notes that “other people have opted to stand in the back of the room with cameras on tri-pods, without any disruption to the proceedings whatsoever.”

Different strokes for different folks, I guess.

One of the people mentioned was employed by the Trustees to record several meetings. $250 a night, if I remember the billing correctly. He had a professional television station quality camera, what looked a directional microphone and a large tri-pod. The camera was much, much larger than Mr. Moore's. The second recording device mentioned one was smaller.

Ancel Glink offers to provide a recording made from the back of the room. Presumably this is one made with the professional equipment mentioned above.

I fail to see the relevance of the product of a professional videographer and that made with equipment an ordinary citizen might be able to afford, which might be a cell phone.

In the third full paragraph on page 2 of Ancel Glink's April 22, 2010, letter, the author asserts that I ran around the room. That is utter nonsense and cannot be proven by the video that the township says it is willing to provide you. I walked.

I have spoken to the spurious assertion that David Moore's small recording device could obstruct the view of people sitting behind him.

What the attorney and the Trustees are really interested in is obstructing the view of those accessing any recording that David Moore might post of meeting proceedings.

As to “harrass(ing) other members of the public at the meetings,” you will note that no specifics are given. In any event, I didn't know that taking pictures of those speaking at or attending a public meeting was capable of being restricted. Certainly, it is not in the purview of the Trustees. In loco parentis applies to students, not to those attending a public meeting.

I direct your attention specifically to the sentence in B6 of Rule 2:

“The Township Board may prohibit the recording of any audience member who objects to being recorded.”

I ask that your strike that sentence.

If a person decides to participate in a public meeting, the ruling body cannot decide what part of the room can be photographed and what part cannot. That is a violation of the First Amendment, not to mention the Open Meetings Act.

Likewise the next sentence purports to give the township board the power to further censor media coverage of its meetings if its deemed “to be offensive to members of the public body witnesses, or th audience.”

Do you think Grafton Township actually paid for this advice?

Directing your attention to Section B8 of the proposed Rule 2, may I ask if this means if there is an empty chair next to where a reporter or photographer is sitting, that his/her camera bag cannot be placed on it?

Does that also mean that other audience members, such as the wife of Trustee McMahon at the last meeting, may not put papers on the seat next to her?

May we at least have equal protection under the law, if the Trustees are to have such an unnecessary ordinance?

I am perplexed at how one's being a “witness,” whatever that is in a township meeting, grants special privileges from coverage by the media. I ask that Section B10 of Rule 2 be stricken.

Finally, I see from the ordinance that it requires those wishing to record to sign in (Section B3 of Rule 2). I contend that no one attending a public meeting has to identify him or herself with the one exception being if one wishes to speak before the governmental body.

Such a sign-in requirement connotes the possibility of a pre-approval before one can exercise one's First Amendment rights, clearing an unsupportable impediment to Freedom of the Press.

Regardless of how you rule on the rest of the Grafton Township ordinance, I ask that you rule that Section B-3 unconstitutional.

Respectfully submitted,

Cal Skinner
McHenry County Blog
275 Meridian St.
Crystal Lake, IL 60014
815-459-3506

13. Jayle