Sunday, February 12, 2012
Summary of Zane Seipler's Case for a Special Prosecutor to be Named to Looking into Whether Sheriff Keith Nygren Used County Resources to Advance His Political Campaigns
Some paragraphing has been added to make the motion easier to read.
ZANE R. SEIPLER
v.
COUNTY OF MCHENRY
Case No.: 10 MR 000011
JUDGE MEYER
NOW COMES the Petitioner, ZANE SEIPLER, a citizen of the State of Illinois and a resident of McHenry County, by and through his attorney, Blake Horwitz, Esq. and submits the following response to the County’s Motion to Dismiss. In support of same, the Petitioner states the following:
This Court has asked the parties (repeatedly) to address the existence of a conflict.
At each turn, the County has ignored the Court’s request, addressing irrelevant matters not before the Court.
The instant motion is no different.
Petitioner can not cause Respondent to follow this Court’s pronouncements.
However, Petitioner would like to stress the unfortunate delay the County’s conduct has caused these proceedings.
No doubt the County desires to push the statute of limitations as to felony charges attributable to Mr. Nygren as far as it can, any criminal charges are dismissed based on timeliness.
In the its brief submission, the County raises the following points:
At no time has the County addressed Mr. Bianchi’s position that he will not investigate or prosecute the Sheriff as Mr. Nygren is the client of the State Attorney and doing so would put millions of tax payer dollars at risk in troubling economic times.
A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts could be proved which would entitle the Petitioner to recover. Aguilar v. Safeway Ins. Co., 221 Ill. App. 3d 1095, 164 Ill. Dec. 418, 582 N.E.2d 1362 (1 Dist. 1991). In determining whether a complaint states facts, or conclusions, the complaint must be considered in its entirety, and not in its disconnected parts. Payne v. Mill Race Inn, 152 Ill. App. 3d 269, 105 Ill. Dec. 324, 504 N.E.2d 193 (2 Dist. 1987). Well-pleaded facts are to be taken as true for purposes of a motion to dismiss; however, such a motion does not admit conclusions of law or of fact unsupported by allegations of specific facts upon which such conclusions rest. Joseph v. Lake Mich. Mtg. Co., 106 Ill. App. 3d 988, 62 Ill. Dec. 637, 436 N.E.2d 663 (1 Dist. 1982); Bank of Lincolnwood v. Comdisco, Inc., 111 Ill. App. 3d 822, 67 Ill. Dec. 421, 444 N.E.2d 657 (1 Dist. 1982)
The County briefly addresses paragraphs 50 and 52, calling them conclusory.
Though contrary to law, the County myopically analyzes these allegations in a disconnected fashion.
This approach should be disregarded. Payne v. Mill Race Inn, 152 Ill. App. 3d 269, 105 Ill. Dec. 324, 504 N.E.2d 193 (2 Dist. 1987).
Regardless, the County has waived its right to attack any other allegations. The remaining paragraphs, 1-49 and 51 are not addressed.
Thus, with regard to the allegations before this Court, Mr. Bianchi, and other prior Assistant State Attorneys, will/would not investigate/prosecute the Sheriff due to the existence of a conflict (Petition, paras. 46-49, 52). These allegations are factually pleaded with great specificity. The exhibits clarify the respective allegations. Therefore, this Court should consider these facts in considering Respondent’s motion.
Respondent possesses an insurmountable burden.
The County argues that the State’s Attorney is not sick or absent.
Petitioner agrees that the State’s Attorney is not physically absent, mentally incompetent or suffering from a condition that precludes his ability to prosecute.
His availability to investigate or prosecute however is hindered making him unavailable.
He refuses to investigate or prosecute for legal reasons, having nothing to do with the merits of the criminal conduct of Sheriff Nygren.
The reason is not based on the charges or allegations, but based on the existence of a conflict. (Petition, paras 45-52).
Any suggestion that the State’s Attorney considered the allegations and used his discretion not to investigate or prosecute is baseless and a SCR 137 violation. The argument attributable to conflict and unavailability is set forth infra.
The County does not properly address the application of McCall. In that action, the Petitioner made a series of allegations relative to the in-custody death of her son, all of which the Court found either non-meaningful or irrelevant. At bottom, though the Court found that ninety percent of the cases lodged by Mr. Devine’s Office were investigated by Chicago Police officers, Petitioner’s request for a special prosecutor with regard to the unknown officers speculatively involved in the death of her son was denied. The Court concluded that “nothing in the allegation shows that Devine would not zealously represent the People of the State of Illinois in this case of alleged police misconduct.”
The factual basis for that decision was grounded in the recognition that there was woefully absent admissible evidence (hearsay was alleged and rejected) absent a showing of impropriety. Further one could only speculate as to the significance of seeking a special prosecutor as to the conduct of unknown officers.
In the instant case, the conduct of Sheriff Nygren is well demonstrated.
Further, unlike McCall, there is ample evidence sub judice relative to zealous prosecution.
Mr. Bianchi refuses to investigate, review or prosecute the felony theft and official misconduct allegations attributable to his client.
Hence, he cannot zealously represent the People.
In short, Mr. Nygren, merely due to his political position, gets a free pass to commit serial felonies FN2. This is clarified by looking at the allegations of the Petition, which state:
= = = = =
46.…Louis Bianchi … will not investigate the claims lodged …[for] the following reasons:
a.the MCSA would be caused to withdraw from the civil cases where it presently represents the Sheriff;
b. the MCSA may be prohibited from representing the “People” in any criminal prosecution initiated by the Sheriff’s deputies;
c. hiring outside counsel to defend the civil cases would amount to an enormous burden resulting in up to “millions of dollars” in tax payer expense;
d. hiring outside counsel costs the tax payers an estimated savings of $10,000.00 per week.
The County ignores the above allegations.
The County cannot pick and choose the facts upon which it chooses to file a 735 ILCS 5/2-615(e) motion as it is forced to accept the factual pleadings as true FN3.
= = = = =
The letter attached to the Petition and allegation 46 clearly spells out the factual basis for the existence of a conflict.
Moreover, Assistant State’s Attorney Thomas J. Carroll asserts that the office of the State’s Attorney cannot and will not investigate a criminal matter against the Sheriff as that would give rise to a conflict of interest:
As you know, our office represents Sheriff Nygren and his officer and for our office to conduct an investigation as you are requesting would constitute a conflict of interest.
(Petition, para 47)
Former Assistant State’s Attorney Donald Leist (now an employee of the Sheriff FN4) agreed:
As you know, this Office represents Sheriff Nygren and his officers, and for this Office to conduct an investigation as you are requesting would constitute a conflict of interest. Therefore, if this Office believed that criminal conduct was present it would be required to refer this matter to another prosecutorial agency (emphasis added).
(Petition, para 48)
= = = = =
McCall thoroughly analyzed and found the absence of a conflict.
The opposite is true in the instant cause.
Also, in McCall the Court reasoned that the Plaintiff failed to demonstrate any specific failure to obtain evidence Id. at 203.
In the instant case, the State’s Attorney has not and will not gather any evidence.
Further, the McCall Court engaged in a meaningful analysis attributable to conflict, establishing that Petitioner’s allegations were too speculative and conclusory, following Baxter v. Peterlin, 156 Ill.App.3d 564 (1987) and that Petitioner’s allegations failed to demonstrate how respondent’s investigations were “impacted” Id. at 201.
In the instant case, there was and will not be an investigation.
Hence, the relationship between Mr. Bianchi and Mr. Nygren as attorney and client is so significant that nothing can go forward.
Where the County argues that absence or sickness forms the only basis for the appointment of a special prosecutor, the opposite is true.
The Supreme Court, First, Second, Third and Fifth Districts have plainly established that conflict of interest forms another basis by which a special prosecutor can be appointed.
In fact, conflict alone provides a sufficient basis to appoint a special prosecutor.
Respondent merely ignores existing authority, directing this Court to cases that address other issues.
Further, the instant facts demonstrate that a conflict renders Mr. Bianchi unavailable.
The Illinois Supreme Court has made clear that conflicted representations are prohibited. People v. Lawson, 163 Ill.2d 187 (1994). State attorneys are not immune to Supreme Court edict. Clearly, Mr. Bianchi follows this proposition of law, rendering him unavailable. Moreover, conflict is a basis for a §9008 appointment. People v. Courtney, 288 Ill.App.3d 1025 (3rd Dist. 1977) (conflict between attorney and client required appointment of special prosecutor); People v. Lanigan, 818 N.E. 2d 829 (1st Dist. 2004) (conflict forms the basis for appointment of a special prosecutor); People v. Lang, 8305 N.E.2d 1249, 346 Ill.App.3d 677 (2nd District, 2004) FN5 (conflict mandated appointment of a special prosecutor); Suburban Cook County Regional Office of Educ. v. Cook County Bd., App. 217 Ill.Dec. 671, 282 Ill.App.3d 560, 667 N.E.2d 1064 (1st Dist. 1996) (where a conflict arises between two agencies, the proper procedure is to seek appointment of a special prosecutor); People v. Polonowski, 196 Ill.Dec. 318, 258 Ill.App.3d 497, 629 N.E.2d 1162 (5th Dist. 1994) (trial court decision reversed due to failure to appoint special prosecutor arising from conflict). In the face of clear precedent to the contrary,
= = = = =
Respondent has inappropriately represented to this Court that conflict is not a basis for § 9008 appointment.
Further, Respondent has ignored this Court’s request to address the conflict issue. Hence, Respondent has waived its right to present further argument on this score.
With regard to the conflict, Louis Bianchi and his two Assistants stipulate(d) that a conflict exists(ed).
A conflict has been further demonstrated by case filings and statute.
The conflict, Petitioner respectfully submits, requires the appointment of a special prosecutor.
The conflict as interpreted by an elected official (Mr. Bianchi) has rendered him unavailable.
The problems attributable to the conflict are demonstrated in a number of areas:
I. Criminal Conduct is Discoverable and Perhaps Admissible in Pending Federal Cases.
Martinez v. Keith Nygren, et al, 08 C 50176 (Kapala, J) is a civil rights case that concerns a failure to provide medical care to a prisoner (Petition, Ex 16). In that case, a conviction of Mr. Nygren could be admissible pursuant to Federal Rules of Evidence 609 FN6.
= = = = =
FN6 Rule 609 provides that subject to the Court’s discretion: evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable . . . in excess of one year . . and if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. Green v. Block Laundry Mach. Co., 490 U.S. 504, 504, 505, 527 (1989).
= = = = =
Mr. Bianchi should zealously protect his client from being convicted of a crime as that crime could be admissible in the Martinez litigation. It is disadvantageous to the defense of a civil case for a criminal conviction to be introduced into evidence.
Respondent, as a zealous advocate, should attempt to oppose the introduction of evidence as to a criminal conviction. Respondent is Mr. Nygren’s attorney in the pending Martinez litigation.
While Mr. Bianchi has the obligation to zealously prevent the generation of evidence relative to the liability of Mr. Nygren in the Martinez litigation, he also has the simultaneous obligation to zealously investigate and prosecute Mr. Nygren with regard to felony theft of services. See 720 ILCS 5/16-3. In Illinois, these diametrically opposed obligations cannot co-exist. People v. Lawson, 163 Ill.2d 187 (1994); People v. Courtney, 288 Ill.App.3d 1025 (3rd Dist. 1977); People v. Lanigan, 818 N.E. 2d 829 (1st Dist. 2004); Suburban Cook County Regional Office of Educ. v. Cook County Bd., App. 217 Ill.Dec. 671, 282 Ill.App.3d 560, 667 N.E.2d 1064 (1st Dist. 1996); People v. Polonowski, 196 Ill.Dec. 318, 258 Ill.App.3d 497, 629 N.E.2d 1162 (5th Dist. 1994).
II. Continued Representation Can Form the Basis for the Dismissal/Reversal of a Criminal Action
Criminal activity can be admissible against Mr. Nygren in pending and future federal litigation. Hence, pre-trial discovery relative to the civil litigation is very important. If during discovery in the civil cases, Respondent learns that Mr. Nygren committed criminal activity and Respondent uses this information against Mr. Nygren in a criminal prosecution, Mr. Nygren can potentially use this inappropriate method of evidence gathering as a technique for the dismissal of a criminal action FN7. As a representative to the People, it would obviously be unwise for Respondent to continue to represent Mr. Nygren.
= = = = =
As Mr. Nygren’s attorney, it is possible that Respondent actually seeks the continued representation of Mr. Nygren so as to cause the ultimate dismissal of a future criminal action.
If the criminal matter against Mr. Nygren is dismissed due to inappropriate conduct on behalf of the Office of the State’s Attorney, Respondent would have successfully represented him.
III. The Petition Sets for that a Conflict Exists.
As the Petition sets forth the existence of a conflict (paras. 45-49) and the essential allegations are unchallenged, the factual allegations are taken as true. Hence, a conflict exists, Mr. Bianchi will not prosecute or investigate based on a conflict.
IV. Illinois Ethical Cannons Demonstrate a Conflict of Interest.
A conflict exists for many reasons. First, Mr. Bianchi admits that there is a conflict. Conflicted representations are prohibited by the Illinois Code of Professional Responsibility:
Rule 1.7 specifically applies to Government Officers. Rule 1.11. Special Conflicts of Interest for Former and Current Government Officers and Employee. Adopted July 1, 2009, effective January 1, 2010.
The commentary relative to Rule 1.7 sheds more light:
Hence, pursuant to Rule 1.7 and its commentary, a conflict of interest exists if there is a “significant risk” that the State’s Attorney is unable to recommend or carry out an appropriate course of action for Mr. Nygren or the People FN8 of the State of Illinois. Moreover, a conflict exists if the lawyers’ duty of loyalty and independence is materially limited by the lawyers’ responsibilities to other persons.
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FN8 That a State’s Attorney has a duty to other persons, is clear: "The state's attorney represents all of the people... He is a public servant whose sole allegiance is to the people."), Fleming v. Kane County, 1986 WL 1414 (N.D.Ill.,1986); “The state's attorney represents all of the people, including the defendant.
His duty is not only to secure convictions, but to see that justice is done.
He is a public servant whose sole allegiance is to the people” In re Guardianship of Angell, 26 Ill.App.2d 239, 167 N.E.2d 711; (Ill.App. __ 1960); ‘The state's attorney represents all of the people. **347 ... He is a public servant whose sole allegiance is to the people.’) People ex rel. Carey v. Lincoln Towing Service, Inc., 40 Ill.App.3d 126, 351 N.E.2d 342.
= = = = =
The State’s Attorney cannot zealously FN9 represent Nygren and the People at the same time. Mr. Bianchi acknowledges this and as a result, will not investigate and/or prosecute his client, Mr. Nygren.
= = = = =
FN9 In addition to conflicts with other current clients, a lawyer’s duties of loyalty and independence may be materially limited by responsibilities to former clients under Rule 1.9 or by the lawyer’s responsibilities to other persons, such as fiduciary duties arising from a lawyer’s service as a trustee, executor or corporate director.
= = = = =
Further, the criminal conduct of the State Attorney’s client (Nygren) may be admissible and discoverable in the federal civil litigation concerning Mr. Nygren, pursuant to Federal Rules of Evidence (FRE) 404, 608 and 609.
Hence, while on the one hand, the State’s attorney must zealously represent Mr. Nygren to prevent the admission into evidence of prior bad acts/criminal conduct pursuant to the federal rules of evidence, it must also zealously investigate Mr. Nygren for criminal conduct.
At bottom, an attorney who is being criminally prosecuted for the same conduct that is the subject matter of a criminal investigation relative to his client must also defend the same client relative to the very same criminal allegations and zealously seek to prosecute.
WHEREFORE, the Petitioner respectfully requests that this Honorable Court deny Respondents’ Motion to Dismiss.
___________________________
Blake Horwitz
Attorney on Behalf of Petitioner
The Blake Horwitz Law Firm, Ltd.
Blake Horwitz, Esq.
39 South Michigan, #1515
Chicago, Illinois 60603
312-676-2100
IN THE CIRCUIT COURT OF THE TWENTY SECOND JUDICIAL CIRCUIT
MCHENRY COUNTY ILLINOIS
ZANE R. SEIPLER
v.
COUNTY OF MCHENRY
Case No.: 10 MR 000011
JUDGE MEYER
PETITIONER’S RESPONSE TO THE COUNTY’S
MOTION FOR JUDGMENT ON THE PLEADINGS
NOW COMES the Petitioner, ZANE SEIPLER, a citizen of the State of Illinois and a resident of McHenry County, by and through his attorney, Blake Horwitz, Esq. and submits the following response to the County’s Motion to Dismiss. In support of same, the Petitioner states the following:
INTRODUCTION
This Court has asked the parties (repeatedly) to address the existence of a conflict.
At each turn, the County has ignored the Court’s request, addressing irrelevant matters not before the Court.
The instant motion is no different.
Petitioner can not cause Respondent to follow this Court’s pronouncements.
However, Petitioner would like to stress the unfortunate delay the County’s conduct has caused these proceedings.
No doubt the County desires to push the statute of limitations as to felony charges attributable to Mr. Nygren as far as it can, any criminal charges are dismissed based on timeliness.
In the its brief submission, the County raises the following points:
- Of the 52 paragraphs set forth in the Petition, two (paras. 50 and 52) are conclusory (Resp. Motion at 3);
- A special prosecutor can only be appointed where the State’s Attorney is sick or absent (Resp. Motion at 3-4);
- The McCall FN1 court denied the Petition to appoint a special prosecutor in light of conflict and unsupported allegations.
FN1McCall v. Devine, 334 Ill. App. 3d 192; 777 N.E.2d 405(1st Dis. 2002).
= = = = =
Applicable Standard for Review
A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts could be proved which would entitle the Petitioner to recover. Aguilar v. Safeway Ins. Co., 221 Ill. App. 3d 1095, 164 Ill. Dec. 418, 582 N.E.2d 1362 (1 Dist. 1991). In determining whether a complaint states facts, or conclusions, the complaint must be considered in its entirety, and not in its disconnected parts. Payne v. Mill Race Inn, 152 Ill. App. 3d 269, 105 Ill. Dec. 324, 504 N.E.2d 193 (2 Dist. 1987). Well-pleaded facts are to be taken as true for purposes of a motion to dismiss; however, such a motion does not admit conclusions of law or of fact unsupported by allegations of specific facts upon which such conclusions rest. Joseph v. Lake Mich. Mtg. Co., 106 Ill. App. 3d 988, 62 Ill. Dec. 637, 436 N.E.2d 663 (1 Dist. 1982); Bank of Lincolnwood v. Comdisco, Inc., 111 Ill. App. 3d 822, 67 Ill. Dec. 421, 444 N.E.2d 657 (1 Dist. 1982)
Paragraphs 50 and 52
The County briefly addresses paragraphs 50 and 52, calling them conclusory.
Though contrary to law, the County myopically analyzes these allegations in a disconnected fashion.
This approach should be disregarded. Payne v. Mill Race Inn, 152 Ill. App. 3d 269, 105 Ill. Dec. 324, 504 N.E.2d 193 (2 Dist. 1987).
Regardless, the County has waived its right to attack any other allegations. The remaining paragraphs, 1-49 and 51 are not addressed.
Thus, with regard to the allegations before this Court, Mr. Bianchi, and other prior Assistant State Attorneys, will/would not investigate/prosecute the Sheriff due to the existence of a conflict (Petition, paras. 46-49, 52). These allegations are factually pleaded with great specificity. The exhibits clarify the respective allegations. Therefore, this Court should consider these facts in considering Respondent’s motion.
Respondent possesses an insurmountable burden.
Sick or Absence
The County argues that the State’s Attorney is not sick or absent.
Petitioner agrees that the State’s Attorney is not physically absent, mentally incompetent or suffering from a condition that precludes his ability to prosecute.
His availability to investigate or prosecute however is hindered making him unavailable.
He refuses to investigate or prosecute for legal reasons, having nothing to do with the merits of the criminal conduct of Sheriff Nygren.
The reason is not based on the charges or allegations, but based on the existence of a conflict. (Petition, paras 45-52).
Any suggestion that the State’s Attorney considered the allegations and used his discretion not to investigate or prosecute is baseless and a SCR 137 violation. The argument attributable to conflict and unavailability is set forth infra.
The Application of McCall
The County does not properly address the application of McCall. In that action, the Petitioner made a series of allegations relative to the in-custody death of her son, all of which the Court found either non-meaningful or irrelevant. At bottom, though the Court found that ninety percent of the cases lodged by Mr. Devine’s Office were investigated by Chicago Police officers, Petitioner’s request for a special prosecutor with regard to the unknown officers speculatively involved in the death of her son was denied. The Court concluded that “nothing in the allegation shows that Devine would not zealously represent the People of the State of Illinois in this case of alleged police misconduct.”
The factual basis for that decision was grounded in the recognition that there was woefully absent admissible evidence (hearsay was alleged and rejected) absent a showing of impropriety. Further one could only speculate as to the significance of seeking a special prosecutor as to the conduct of unknown officers.
In the instant case, the conduct of Sheriff Nygren is well demonstrated.
Further, unlike McCall, there is ample evidence sub judice relative to zealous prosecution.
Mr. Bianchi refuses to investigate, review or prosecute the felony theft and official misconduct allegations attributable to his client.
Hence, he cannot zealously represent the People.
In short, Mr. Nygren, merely due to his political position, gets a free pass to commit serial felonies FN2. This is clarified by looking at the allegations of the Petition, which state:
= = = = =
FN2 The County has admitted that public funds were used to place the seven pointed star on official government property (Answer to Petition, paras 27-30).
The County denies that Sheriff Nygren used the same star on documents to promote his political campaign.
The County’s denial, in bad faith, flies in the face of well demonstrated photographs/documents attached to the pending Petition (paras. 45-48).
However, ignoring facts, not following the law and the filing of frivolous pleadings is merely a pattern that continues to repeat itself as demonstrated in the most recent submission.
The exhibits to the Petition speak for themselves, regardless of the County’s denial.
= = = = =46.…Louis Bianchi … will not investigate the claims lodged …[for] the following reasons:
a.the MCSA would be caused to withdraw from the civil cases where it presently represents the Sheriff;
b. the MCSA may be prohibited from representing the “People” in any criminal prosecution initiated by the Sheriff’s deputies;
c. hiring outside counsel to defend the civil cases would amount to an enormous burden resulting in up to “millions of dollars” in tax payer expense;
d. hiring outside counsel costs the tax payers an estimated savings of $10,000.00 per week.
The County ignores the above allegations.
The County cannot pick and choose the facts upon which it chooses to file a 735 ILCS 5/2-615(e) motion as it is forced to accept the factual pleadings as true FN3.
= = = = =
FN3 When a party moves for judgment on the pleadings pursuant to 735 ILCS 5/2-615(e) (West 1994), it concedes the truth of the well-pled facts in the respondent's pleadings. Richco Plastic Co. v. IMS Co., 288 Ill. App. 3d 782, 786, 224 Ill. Dec. 74, 681 N.E.2d 56 (1997)”.
= = = = =
The letter attached to the Petition and allegation 46 clearly spells out the factual basis for the existence of a conflict.
Moreover, Assistant State’s Attorney Thomas J. Carroll asserts that the office of the State’s Attorney cannot and will not investigate a criminal matter against the Sheriff as that would give rise to a conflict of interest:
As you know, our office represents Sheriff Nygren and his officer and for our office to conduct an investigation as you are requesting would constitute a conflict of interest.
(Petition, para 47)
Former Assistant State’s Attorney Donald Leist (now an employee of the Sheriff FN4) agreed:
As you know, this Office represents Sheriff Nygren and his officers, and for this Office to conduct an investigation as you are requesting would constitute a conflict of interest. Therefore, if this Office believed that criminal conduct was present it would be required to refer this matter to another prosecutorial agency (emphasis added).
(Petition, para 48)
= = = = =
FN4 Mr. Leist, who previously argued on behalf of the Office of the State’s Attorney, seeking to dismiss the petition to appoint a special prosecutor, now works for Sheriff Nygren in an official capacity as the Sheriff’s EEO. The Sheriff is his immediate supervisor.
= = = = =
McCall thoroughly analyzed and found the absence of a conflict.
The opposite is true in the instant cause.
Also, in McCall the Court reasoned that the Plaintiff failed to demonstrate any specific failure to obtain evidence Id. at 203.
In the instant case, the State’s Attorney has not and will not gather any evidence.
Further, the McCall Court engaged in a meaningful analysis attributable to conflict, establishing that Petitioner’s allegations were too speculative and conclusory, following Baxter v. Peterlin, 156 Ill.App.3d 564 (1987) and that Petitioner’s allegations failed to demonstrate how respondent’s investigations were “impacted” Id. at 201.
In the instant case, there was and will not be an investigation.
Hence, the relationship between Mr. Bianchi and Mr. Nygren as attorney and client is so significant that nothing can go forward.
Conflict Renders Mr. Bianchi Unavailable and Independently
Forms A Basis to Appoint A Special Prosecutor
Where the County argues that absence or sickness forms the only basis for the appointment of a special prosecutor, the opposite is true.
The Supreme Court, First, Second, Third and Fifth Districts have plainly established that conflict of interest forms another basis by which a special prosecutor can be appointed.
In fact, conflict alone provides a sufficient basis to appoint a special prosecutor.
Respondent merely ignores existing authority, directing this Court to cases that address other issues.
Further, the instant facts demonstrate that a conflict renders Mr. Bianchi unavailable.
The Illinois Supreme Court has made clear that conflicted representations are prohibited. People v. Lawson, 163 Ill.2d 187 (1994). State attorneys are not immune to Supreme Court edict. Clearly, Mr. Bianchi follows this proposition of law, rendering him unavailable. Moreover, conflict is a basis for a §9008 appointment. People v. Courtney, 288 Ill.App.3d 1025 (3rd Dist. 1977) (conflict between attorney and client required appointment of special prosecutor); People v. Lanigan, 818 N.E. 2d 829 (1st Dist. 2004) (conflict forms the basis for appointment of a special prosecutor); People v. Lang, 8305 N.E.2d 1249, 346 Ill.App.3d 677 (2nd District, 2004) FN5 (conflict mandated appointment of a special prosecutor); Suburban Cook County Regional Office of Educ. v. Cook County Bd., App. 217 Ill.Dec. 671, 282 Ill.App.3d 560, 667 N.E.2d 1064 (1st Dist. 1996) (where a conflict arises between two agencies, the proper procedure is to seek appointment of a special prosecutor); People v. Polonowski, 196 Ill.Dec. 318, 258 Ill.App.3d 497, 629 N.E.2d 1162 (5th Dist. 1994) (trial court decision reversed due to failure to appoint special prosecutor arising from conflict). In the face of clear precedent to the contrary,
= = = = =
FN 5 Conflict also addressed in People v. Arrington, 297 Ill.App.3d 1, 696 N.E.2d 1229 (2nd Dist 1998).
= = = = =Respondent has inappropriately represented to this Court that conflict is not a basis for § 9008 appointment.
Further, Respondent has ignored this Court’s request to address the conflict issue. Hence, Respondent has waived its right to present further argument on this score.
With regard to the conflict, Louis Bianchi and his two Assistants stipulate(d) that a conflict exists(ed).
A conflict has been further demonstrated by case filings and statute.
The conflict, Petitioner respectfully submits, requires the appointment of a special prosecutor.
The conflict as interpreted by an elected official (Mr. Bianchi) has rendered him unavailable.
The problems attributable to the conflict are demonstrated in a number of areas:
- Mr. Nygren’s criminal conduct is admissible in the pending federal cases in which Respondent is presently engaged;
- information received by Mr. Bianchi from Mr. Nygren in a civil case may be a basis for the dismissal of a criminal cause;
- Respondent has declared that a conflict, which prevents investigation into criminal activity, exists
- Illinois Ethical Law prohibits the conflicted representations.
I. Criminal Conduct is Discoverable and Perhaps Admissible in Pending Federal Cases.
Martinez v. Keith Nygren, et al, 08 C 50176 (Kapala, J) is a civil rights case that concerns a failure to provide medical care to a prisoner (Petition, Ex 16). In that case, a conviction of Mr. Nygren could be admissible pursuant to Federal Rules of Evidence 609 FN6.
= = = = =
FN6 Rule 609 provides that subject to the Court’s discretion: evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable . . . in excess of one year . . and if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. Green v. Block Laundry Mach. Co., 490 U.S. 504, 504, 505, 527 (1989).
= = = = =
Mr. Bianchi should zealously protect his client from being convicted of a crime as that crime could be admissible in the Martinez litigation. It is disadvantageous to the defense of a civil case for a criminal conviction to be introduced into evidence.
Respondent, as a zealous advocate, should attempt to oppose the introduction of evidence as to a criminal conviction. Respondent is Mr. Nygren’s attorney in the pending Martinez litigation.
While Mr. Bianchi has the obligation to zealously prevent the generation of evidence relative to the liability of Mr. Nygren in the Martinez litigation, he also has the simultaneous obligation to zealously investigate and prosecute Mr. Nygren with regard to felony theft of services. See 720 ILCS 5/16-3. In Illinois, these diametrically opposed obligations cannot co-exist. People v. Lawson, 163 Ill.2d 187 (1994); People v. Courtney, 288 Ill.App.3d 1025 (3rd Dist. 1977); People v. Lanigan, 818 N.E. 2d 829 (1st Dist. 2004); Suburban Cook County Regional Office of Educ. v. Cook County Bd., App. 217 Ill.Dec. 671, 282 Ill.App.3d 560, 667 N.E.2d 1064 (1st Dist. 1996); People v. Polonowski, 196 Ill.Dec. 318, 258 Ill.App.3d 497, 629 N.E.2d 1162 (5th Dist. 1994).
II. Continued Representation Can Form the Basis for the Dismissal/Reversal of a Criminal Action
Criminal activity can be admissible against Mr. Nygren in pending and future federal litigation. Hence, pre-trial discovery relative to the civil litigation is very important. If during discovery in the civil cases, Respondent learns that Mr. Nygren committed criminal activity and Respondent uses this information against Mr. Nygren in a criminal prosecution, Mr. Nygren can potentially use this inappropriate method of evidence gathering as a technique for the dismissal of a criminal action FN7. As a representative to the People, it would obviously be unwise for Respondent to continue to represent Mr. Nygren.
= = = = =
FN7 The appearance of impropriety mandates the need for a special prosecutor. People v. Lang, 805 N.E.2d 1249, 346 Ill.App. 3d 677 (2nd District, 2004) (where close interactions with the Defendant required appointment of special prosecutor).
If information that forms the basis of a criminal prosecution is secured during an attorney-client discussion (i.e. Nygren and ASA), violation of that communication could give rise to the appearance of impropriety.
Also, if the information was secured during the pendency of a civil matter (i.e. during a deposition) and Mr. Nygren was caused to speak contrary to his invocation of his Fifth Amendment Rights and the same office who represented him in the deposition subsequently prosecuted him, an appearance of impropriety could be readily claimed.
= = = = =If information that forms the basis of a criminal prosecution is secured during an attorney-client discussion (i.e. Nygren and ASA), violation of that communication could give rise to the appearance of impropriety.
Also, if the information was secured during the pendency of a civil matter (i.e. during a deposition) and Mr. Nygren was caused to speak contrary to his invocation of his Fifth Amendment Rights and the same office who represented him in the deposition subsequently prosecuted him, an appearance of impropriety could be readily claimed.
As Mr. Nygren’s attorney, it is possible that Respondent actually seeks the continued representation of Mr. Nygren so as to cause the ultimate dismissal of a future criminal action.
If the criminal matter against Mr. Nygren is dismissed due to inappropriate conduct on behalf of the Office of the State’s Attorney, Respondent would have successfully represented him.
III. The Petition Sets for that a Conflict Exists.
As the Petition sets forth the existence of a conflict (paras. 45-49) and the essential allegations are unchallenged, the factual allegations are taken as true. Hence, a conflict exists, Mr. Bianchi will not prosecute or investigate based on a conflict.
IV. Illinois Ethical Cannons Demonstrate a Conflict of Interest.
A conflict exists for many reasons. First, Mr. Bianchi admits that there is a conflict. Conflicted representations are prohibited by the Illinois Code of Professional Responsibility:
[A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. * * *
Rule 1.7: Conflict Of Interest: Current Clients. Adopted July 1, 2009, effective January 1, 2010.
Rule 1.7 specifically applies to Government Officers. Rule 1.11. Special Conflicts of Interest for Former and Current Government Officers and Employee. Adopted July 1, 2009, effective January 1, 2010.
The commentary relative to Rule 1.7 sheds more light:
[8] Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests. For example, a lawyer asked to represent several individuals seeking to form a joint venture is likely to be materially limited in the lawyer’s ability to recommend or advocate all possible positions that each might take because of the lawyer’s duty of loyalty to the others. The conflict in effect forecloses alternatives that would otherwise be available to the client. The mere possibility of subsequent harm does not itself require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.
[9] In addition to conflicts with other current clients, a lawyer’s duties of loyalty and independence may be materially limited by responsibilities to former clients under Rule 1.9 or by the lawyer’s responsibilities to other persons, such as fiduciary duties arising from a lawyer’s service as a trustee, executor or corporate director. [Emphasis added]
Hence, pursuant to Rule 1.7 and its commentary, a conflict of interest exists if there is a “significant risk” that the State’s Attorney is unable to recommend or carry out an appropriate course of action for Mr. Nygren or the People FN8 of the State of Illinois. Moreover, a conflict exists if the lawyers’ duty of loyalty and independence is materially limited by the lawyers’ responsibilities to other persons.
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FN8 That a State’s Attorney has a duty to other persons, is clear: "The state's attorney represents all of the people... He is a public servant whose sole allegiance is to the people."), Fleming v. Kane County, 1986 WL 1414 (N.D.Ill.,1986); “The state's attorney represents all of the people, including the defendant.
His duty is not only to secure convictions, but to see that justice is done.
He is a public servant whose sole allegiance is to the people” In re Guardianship of Angell, 26 Ill.App.2d 239, 167 N.E.2d 711; (Ill.App. __ 1960); ‘The state's attorney represents all of the people. **347 ... He is a public servant whose sole allegiance is to the people.’) People ex rel. Carey v. Lincoln Towing Service, Inc., 40 Ill.App.3d 126, 351 N.E.2d 342.
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The State’s Attorney cannot zealously FN9 represent Nygren and the People at the same time. Mr. Bianchi acknowledges this and as a result, will not investigate and/or prosecute his client, Mr. Nygren.
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FN9 In addition to conflicts with other current clients, a lawyer’s duties of loyalty and independence may be materially limited by responsibilities to former clients under Rule 1.9 or by the lawyer’s responsibilities to other persons, such as fiduciary duties arising from a lawyer’s service as a trustee, executor or corporate director.
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Further, the criminal conduct of the State Attorney’s client (Nygren) may be admissible and discoverable in the federal civil litigation concerning Mr. Nygren, pursuant to Federal Rules of Evidence (FRE) 404, 608 and 609.
Hence, while on the one hand, the State’s attorney must zealously represent Mr. Nygren to prevent the admission into evidence of prior bad acts/criminal conduct pursuant to the federal rules of evidence, it must also zealously investigate Mr. Nygren for criminal conduct.
At bottom, an attorney who is being criminally prosecuted for the same conduct that is the subject matter of a criminal investigation relative to his client must also defend the same client relative to the very same criminal allegations and zealously seek to prosecute.
WHEREFORE, the Petitioner respectfully requests that this Honorable Court deny Respondents’ Motion to Dismiss.
___________________________
Blake Horwitz
Attorney on Behalf of Petitioner
The Blake Horwitz Law Firm, Ltd.
Blake Horwitz, Esq.
39 South Michigan, #1515
Chicago, Illinois 60603
312-676-2100
# posted by Cal Skinner : 9:51 PM
