Monthly Archives: April 2011

How the State of Illinois commits fraud when charging an offense.

If you have been issued a traffic ticket or charged with a misdemeanor in Illinois and appeared in court or failed to appear and had a bench warrant issued, chances are you have not been charged with an offense and have no duty to appear in court to answer the charges. If you have pleaded or were found guilty for a traffic infraction or misdemeanor then you probably pleaded to a nonexistent charge. If either is the case, I recommend you contact me. There may be a way to get your judgment voided since the court did not have jurisdiction in the first place. I have seen hundreds of traffic tickets, as well as a fair share of complaints and informations. I have yet to see a warrant issued by a judge and supported by affidavit, or an information signed and swore to by the State’s Attorney. Traffic tickets are not complaints and you have no obligation to appear in court for a traffic ticket.

I have written numerous times on the issue of defective charges issued by police and prosecutors in Illinois, particularly St. Clair County. I will walk through the lawful requirements for charging an offense and how the State either willfully or ignorantly files insufficient and unlawful charges against individuals. For there to be a lawful charge, there must first be jurisdiction. This article will deal with Constitutional issues as well as statutory requirements and appellate court opinions on the subject. I think you will find that if you have been charged with a traffic or misdemeanor offense, maybe even a felony, you have not been lawfully charged with an offense and have voluntarily appeared to answer for non-existent charges.

Before we even get to what the “law” says, we must understand the basic protections afforded by the Constitutions. Let’s begin with the Fourth Amendment to the US Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (This means NO warrants, including bench warrants, traffic warrants, etc.)

Now we move on to Article I, Section 6 of the Illinois Constitution (Bill of Rights):

SECTION 6. SEARCHES, SEIZURES, PRIVACY AND INTERCEPTIONS

The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means. No warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized. (This is substantially a recitation of the Fourth Amendment, except it specifies an affidavit as opposed to an oath. This may be a fine distinction, but an oath is given orally and affidavit is in writing. The Fourth Amendment provides for both whereas Illinois limits warrants to being supported by a written affidavit.

There are generally 3 ways to charge an offense; by complaint, information, and indictment. This is not to say that you cannot be arrested without them. It has been held that if a criminal offense is committed in the presence of a police officer or a private citizen they may make an arrest. Either a police officer or private citizen may make an arrest with a warrant. Only a police officer can make an arrest based on probable cause. Here is what the courts have said regarding these options in relation to the protections of the Constitutions:

This section of the Constitution has been many times construed by this court, and it has been uniformly held that no person may be arrested and held to answer a charge of crime other than on a sworn complaint before a judge or justice of the peace, or an indictment returned by a grand jury duly sworn and impaneled, or by presentment of not less than two members of such grand jury, or by verified information of the state’s attorney or Attorney General in certain cases.People ex rel. v. Leinecke, 290 Ill. 560, 125 N.E. 513;People v. Clark, 280 Ill. 160, 117 N.E. 432;Housh v. People, 75 Ill. 487; also, Smith-Hurd Rev.St.1931, c. 38, ss 662, 664, 711, 721. The only exceptions to these requirements arise in cases where the arrest or seizure is made by an officer in whose presence the crime is committed or who has reasonable ground for believing that the person arrested was implicated in the commission of a crime.People v. Caruso, 339 Ill. 258, 171 N.E. 128;People v. Swift, 319 Ill. 359, 150 N.E. 263;Lynn v. People, 170 Ill. 527, 48 N.E. 964;North v. People, 139 Ill. 81, 28 N.E. 966),

A Citizen has the power of arrest reflected in the Illinois Compiled Statutes:

(725 ILCS 5/107‑3) (from Ch. 38, par. 107‑3) Sec. 107‑3. Arrest by private person.  Any person may arrest another when he has reasonable grounds to believe that an offense other than an ordinance violation is being committed. (Source: Laws 1963, p. 2836.)

(725 ILCS 5/107‑9) (from Ch. 38, par. 107‑9)  Sec. 107‑9. Issuance of arrest warrant upon complaint. (e) The warrant shall be directed to all peace officers in the State. It shall be executed by the peace officer, or by a private person specially named therein, at any location within the geographic limitation for execution placed on the warrant. If no geographic limitation is placed on the warrant, then it may be executed anywhere in the State.

To this point, it is clear that both the US Constitution and Illinois Constitution state, as supported by the courts, that no arrest can be made without a warrant, and for there to be a warrant there must be a sworn complaint; except in cases where a police officer personally witnesses the crime or has probable cause, or when a private person reasonably believes an offense other than an ordinance violation is being committed. Pay attention to “is being committed”. This means the offense must be in progress and not a thing of the past or future. A private person cannot arrest someone because of what they did or are about to do. That is the extent of the power of arrest possessed by the State. Illinois takes this one step further, which is where I believe arrests by so-called “bench warrants” come into play. The statutes say:

(725 ILCS 5/107‑2) (from Ch. 38, par. 107‑2) Sec. 107‑2. (1) Arrest by Peace Officer. A peace officer may arrest a person when:  (a) He has a warrant commanding that such person be arrested; or (b) He has reasonable grounds to believe that a warrant for the person’s arrest has been issued in this State or in another jurisdiction;

Police do not know the law. They only do what they are told. If a police officer is handed a bench warrant he does not question whether the warrant has been lawfully issued pursuant to the Constitution. If he checks his computer and sees a notice about a bench warrant he does not review the warrant for conformity with the law. He does not review the warrant for the judge’s signature or whether there is a corresponding affidavit. He is operating on “reasonable grounds” that a warrant has been issued because of the bench warrant. This can be dangerous, because without a warrant there is no arrest, regardless of the police officer’s belief. People have a right to be secure in their persons, papers, and possessions and if unlawfully assaulted in this respect have a natural right to defend themselves and their property, even from police. I expound on this premise in this article and will not revisit the specifics here.

Before going further, we must ask this question. If the law provides for arrests, are there any who are exempt from arrests? I know many believe police are exempt from arrests when in the performance of their duties, but are they? Let’s visit the statutes again where we find some guidance.

(725 ILCS 5/107‑7) (from Ch. 38, par. 107‑7) Sec. 107‑7. Persons exempt from arrest. (a) Electors shall, in all cases except treason, felony or breach of the peace, be privileged from arrest during their attendance at election, and in going to and returning from the same. (b) Senators and representatives shall, in all cases, except treason, felony or breach of the peace, be privileged from arrest during the session of the General Assembly, and in going to and returning from the same. (c) The militia shall in all cases, except treason, felony, or breach of the peace, be privileged from arrest during their attendance at musters and elections, and in going to and returning from the same. (d) Judges, attorneys, clerks, sheriffs, and other court officers shall be privileged from arrest while attending court and while going to and returning from court. (Source: Laws 1963, p. 2836.)

I fail to find anywhere in that section an exemption for police officers. It does specifically mention sheriffs, but police officers are municipal or state  employees and not officers of the court. The statute even alludes to sheriffs being not exempt if they are not attending court or going to and from court. This means that if a police officer commits a crime in the presence of a private individual they may make an arrest of that police officer. This would include the police officer using excessive force or other crime committed under the pretense of effecting an arrest.

So now we know there can be no arrest without a warrant or unless a crime is committed in the presence of a police officer or other individual, or in cases where police have reasonable suspicion that a crime has been, is being, or will be committed. If there is a warrant, it must be sworn to and in writing.

The only other instance where an arrest or seizure is at all justifiable is where an offense is committed in the presence of the officer or person making the arrest, And in such case there must be a sworn complaint or indictment before trial to set the machinery of the law in motion.’ (Emphasis supplied.) 280 Ill. at 166, 117 N.E. at 434.

The only exceptions to these requirements arise in cases where the arrest or seizure is made by an officer in whose presence the crime is committed or who has reasonable ground for believing that the person arrested was implicated in the commission of a crime. ( People v. Caruso, 339 Ill. 258, 171 N.E. 128;People v. Swift, 319 Ill. 359, 150 N.E. 263;Lynn v. People, 170 Ill. 527, 48 N.E. 964;North v. People, 139 Ill. 81, 28 N.E. 966), And even then a sworn complaint or indictment must follow before the court can take jurisdiction.’

Arrest by warrant is unlawful until complaint charging crime has been filedHoush v. People, 1874, 75 Ill. 487.

By the common law, and according to the holdings in many of the states, a private person may justify an arrest by showing that a felony had been actually committed and that he had reasonable grounds to suspect that the person arrested committed the felony. 2 Am. & Eng. Ency. of Law (2d Ed.) 885; 3 Cyc. 885, and authorities therein cited. By section 4 of division 6 of our Criminal Code (Hurd’s Rev. St. 1903, c. 38, § 342, p. 677), it is provided: ‘An arrest may be made by an officer or by a private person without warrant, for a criminal offense committed or attempted in his presence, and by an officer, when a criminal offense has in fact been committed and he has reasonable ground for believing that the person to be arrested has committed it.’ From the reading of this statute it would seem that there is pointed out a distinction between the power of a citizen to make an arrest and that of an officer. A citizen may arrest when an offense is committed or attempted to be committed in his presence. So, too, may an officer under the same circumstances. But an officer may also arrest where the criminal offense has in fact been committed and he has reasonable grounds for believing the person arrested has committed it. But this latter power is not extended to a citizen by the statute. Enright v. Gibson, 219 Ill. 550, 76 N.E.689

There are, no doubt, cases which hold that private individuals may arrest on probable cause; but there are authorities which hold the contrary rule, and in the conflict of authority we are left free to adopt the rule which seems to be most consonant with reason and the public interest; and to prevent breaches of the peace, and even bloodshed, we think that a private individual should not be justified unless a crime had been committed and the person arrested shall be shown to be the guilty party.’ We think this case a clear announcement of the rule in this state that, before a private citizen can justify an arrest made by him, he must show not only that a crime has in fact been committed, but that the person arrested is guilty of the crimeEnright v. Gibson, 219 Ill. 550, 76 N.E.689

Fact that complaint itself may not have stated facts supporting probable cause did not make arrest warrant invalid, where trial court examined complainant under oath and determined that probable cause existed. People v. Hayes, 1990, 151 Ill.Dec.348, 139 Ill.2d 89, 564 N.E.2d 803, certiorari denied 111 S.Ct. 1601, 449 U.S. 967, 113 L.Ed.2d 664. Criminal Law211(1); Criminal Law212

The court is saying that even if the complaint itself does not contain information to support probable cause, by the court examining the complainant under oath, it determined that probable cause was sufficient for the issuance of an arrest warrant. This illustrates the importance of the court examining the complainant or witness. It is not the written complaint which is  important, but that there is a flesh-and-blood individual before the court swearing under oath and penalty of perjury that there has been a crime committed, and the complaint serves as the written instrument for the record which the court will refer to in prosecuting the crime.

Officer seeking arrest warrant is not required to present issuing judge any and all circumstances which may affect finding of probable cause. People v. Hothersall, App. 2 Dist.1981, 58 Ill.Dec. 891, 103 Ill.App.3d 183, 430 N.E.2d 1142. Criminal Law 211(3)

Complaints for arrest warrants, which complaints contained names of accused, offense charged, time and place of offense, and signature and oath of complainant, were sufficient under this paragraph. People v. Collins, App. 1 Dist.1979, 26 Ill.Dec.165, 70 Ill.App.3d 413, 387 N.E.2d 995. Criminal Law211(1)

Probable cause necessary for issuance of arrest warrant cannot be made out by mere conclusory statements in affidavit in support of warrant that probable cause exists. People v. Davis, App. 1 Dist.1974, 20 Ill.App.3d 948, 314 N.E.2d 723.Criminal Law 211(1)

Where arrest warrant was issued on basis of a complaint which merely stated that police officer had just and reasonable grounds to believe that defendant had sold a narcotic drug, warrant was defective under Const. 1870, Art. 2, § 6 (see, now, Const. Art. 1, § 6), and evidence obtained as a result of defendant’s arrest was inadmissible. People v. Waitts, 1967, 36 Ill.2d 467, 224 N.E.2d 257. Criminal Law 211(3); Criminal Law394.4(9)

Complaint which charged offense of disorderly conduct and which was verified before notary public and presented to court by complainant, who was thereupon examined under oath by court, was sufficient as basis for issuance of warrant of arrest. Village of Willowbrook v. Miller,  App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809. Criminal Law 211(1)

complaint in writing subscribed and sworn to, containing a concise statement of the offense charged, the name of the person accused, and averring that the complainant has just and reasonable grounds to believe that the accused committed the offense, is sufficient. People v. United States Fidelity & Guaranty Co.,1925, 238 Ill.App. 112.

Illinois courts may issue an arrest warrant only if complaint shows that probable cause exists to believe proposed arrestee has committed crime in question. Keefer v. Leach, 1979, 597 P.2d 203, 198 Colo. 101. Criminal Law 217

This paragraph did not require that complaint or warrant articulate probable cause for arrest but rather that court, in making determination of probable cause for issuance of arrest warrant, examine complainant or any witness under oath. People v. Hooper, 1989, 142 Ill.Dec. 93, 133 Ill.2d 469, 552 N.E.2d 684, certiorari denied 111 S.Ct. 284, 498 U.S. 911, 112 L.Ed.2d 239. Criminal Law211(1); Criminal Law 212

For there to be a lawful arrest there must first be an arrest warrant supported by a sworn complaint, information, or indictment; or a police officer must have reasonable suspicion that a crime has been committed or he or a private individual must have witnessed the crime personally. For there to be a complaint or information, there must be a supporting affidavit or oath. Even if arrested by a police officer witnessing the offense there must be a sworn complaint or indictment supported by affidavit or oath. Regardless, in ALL CASES, there MUST BE A SWORN COMPLAINT SUPPORTED BY AFFIDAVIT OR OATH. If either of these is missing from a charge the court has NO jurisdiction and the charge cannot stand.

CHARGING AN OFFENSE

We also need to examine the ways an offense can be charged. These are complaint, information, and indictment. Let’s examine the requirements for each.

(725 ILCS 5/Art. 111 heading)

ARTICLE 111. CHARGING AN OFFENSE

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072500050HTit%2E+IV&ActID=1966&ChapterID=54&SeqStart=19700000&SeqEnd=25100000

(725 ILCS 5/111‑1) (from Ch. 38, par. 111‑1)

Sec. 111‑1. Methods of prosecution.

When authorized by law a prosecution may be commenced by:

(a) A complaint; [1]

(b) An information; [2]

(c) An indictment. [3]

(725 ILCS 5/111‑2) (from Ch. 38, par. 111‑2)

Sec. 111‑2. Commencement of prosecutions.

(a) All prosecutions of felonies shall be by information or by indictment. No prosecution may be pursued by information unless a preliminary hearing has been held or waived in accordance with Section 109‑3 and at that hearing probable cause to believe the defendant committed an offense was found, and the provisions of Section 109‑3.1 of this Code have been complied with.

(b) All other prosecutions may be by indictment, information or complaint.

(d) Upon the filing of an information or indictment in open court, the court shall immediately issue a warrant for the arrest of each person charged with an offense directed to a peace officer or some other person specifically named commanding him to arrest such person.

(f) Where the prosecution of a felony is by information or complaint after preliminary hearing, or after a waiver of preliminary hearing in accordance with paragraph (a) of this Section, such prosecution may be for all offenses, arising from the same transaction or conduct of a defendant even though the complaint or complaints filed at the preliminary hearing charged only one or some of the offenses arising from that transaction or conduct.

(Source: P.A. 90‑590, eff. 1‑1‑99.)

(725 ILCS 5/111‑3) (from Ch. 38, par. 111‑3)

Sec. 111‑3. Form of charge.

(b) An indictment shall be signed by the foreman of the Grand Jury and an information shall be signed by the State’s Attorney and sworn to by him or another [4].

A complaint shall be sworn to and signed by the complainant [5];

provided, that when a peace officer observes the commission of a misdemeanor and is the complaining witness, the signing of the complaint by the peace officer is sufficient to charge the defendant with the commission of the offense [6],

and the complaint need not be sworn to if the officer signing the complaint certifies[7]

that the statements set forth in the complaint are true and correct and are subject to the penalties provided by law for false certification [8]

under Section 1‑109 of the Code of Civil Procedure and perjury under Section 32‑2 of the Criminal Code of 1961[9]

and further provided , however, that when a citation is issued on a Uniform Traffic Ticket or Uniform Conservation Ticket (in a form prescribed by the Conference of Chief Circuit Judges and filed with the Supreme Court), the copy of such Uniform Ticket which is filed with the circuit court constitutes a complaint to which the defendant may plead [10],

unless he specifically requests that a verified complaint be filed [11].

[1]Complaint – 725 ILCS 5/102 9 “Complaint” means a verified written statement other than an information or an indictment, presented to a court, which charges the commission of an offense.

[2]Information – 725 ILCS 5/102 12 “Information” means a verified written statement signed by a State’s Attorney, and presented to a court, which charges the commission of an offense.

[3]Indictment – 725 ILCS 5/102 11 “Indictment” means a written statement, presented by the Grand Jury to a court, which charges the commission of an offense.”

[4]There is a little confusion on this as to whether anyone can swear to an information signed by the State’s Attorney. I have seen informations sworn to by the police officer, but does “another” mean “anyone else”? In this sense, “another” means someone else in the State’s Attorney’s office, such as an Assistant State’s Attorney. Looking at footnote [5] you will see that for a complaint, the lowest form of charge there is, it must be signed and sworn to by the complainant. Why would a complaint not be signed by the complainant and sworn to by “another”? Because the person making the charge is the one subject to the penalties of perjury so they must sign and swear. With the State’s Attorney’s office, they are working under the same oath of office and extensions of the State’s Attorney. Therefore, duly appointed deputies of the State’s Attorney, Assistant State’s Attorneys, can swear as though it were the State’s Attorney himself. For other guidance on this, we look at another State, Florida, and its requirements. http://www.joffelaw.com/state-rules/3-140.html

(g) Signature, Oath, and Certification; Information. An information charging the commission of a felony shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his or her good faith in instituting the prosecution and certifying that he or she has received testimony under oath from the material witness or witnesses for the offense. An information charging the commission of a misdemeanor shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his or her good faith in instituting the prosecution. No objection to an information on the ground that it was not signed or verified, as herein provided, shall be entertained after the defendant pleads to the merits.

[5]As distinguished from an information, the complaint must be signed and sworn to by the complainant. There is no provision for a complaint being signed by the complainant and sworn to by another individual.

[6]Notice that it specifies the “commission of a misdemeanor” and not a felony. It is saying that if the police officer is the complaining witness and directly observes the commission of a misdemeanor, his signature on the complaint is sufficient to charge the defendant with the commission of the offense. However, remember that a complaint must be sworn to. This statement is misleading, as it is referring to misdemeanors which are civil in nature, and not criminal. Read on.

[7]It goes on to say the complaint need not be sworn to if the officer certifies, which is not the same as verification. Certification is a method used in civil proceedings to show notice was served to parties. It is different from verification. “Although statute provided that, whenever the Code of Civil Procedure requires a document to be sworn to or verified under oath, then verification under penalty of perjury is an acceptable substitute, the verification provided by statute was not a substitute for the affidavit required by “date of mailing” rule, providing that service is proved, in case of service by mail, by certificate of the attorney, or affidavit of a person other than the attorney, who deposited the paper in the mail; statute allowed for verification by certification unless otherwise expressly provided by rule of the Supreme Court. People v. Tlatenchi, App. 1 Dist.2009, 330 Ill.Dec. 485, 391 Ill.App.3d 705, 909 N.E.2d 198, rehearing denied , appeal denied 336 Ill.Dec. 489, 234 Ill.2d 547, 920 N.E.2d 1079.”

“By its express terms, statute governing verification by certification provides that, whenever the Code of Civil Procedure requires a document to be sworn to or verified under oath, then verification under penalty of perjury is an acceptable substitute, but statute does not indicate that such verification is an acceptable substitute when a statute, other than the Code of Civil Procedure, requires a document to be sworn to or verified under oath. People v. Tlatenchi, App. 1 Dist.2009, 330 Ill.Dec. 485, 391 Ill.App.3d 705, 909 N.E.2d 198, rehearing denied , appeal denied 336 Ill.Dec. 489, 234 Ill.2d 547, 920 N.E.2d 1079.”

Notice how it refers to the Code of Civil Procedure. In the case cited last, it says that certification is not acceptable when a document is required to sworn to or verified under oath, as with a criminal complaint. Certification and verification are two different things, certification belonging to civil proceedings and verification being a requisite for criminal charges.

[8]Again, it is talking a false certification, which applies to civil matters.

[9]Section 1-109 of the Code of Civil Procedure found here http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=073500050HArt%2E+I&ActID=2017&ChapterID=56&SeqStart=100000&SeqEnd=1100000

states “(735 ILCS 5/1‑109) (from Ch. 110, par. 1‑109)

Sec. 1‑109. Verification by certification. Unless otherwise expressly provided by rule of the Supreme Court, whenever in this Code any complaint, petition, answer, reply, bill of particulars, answer to interrogatories, affidavit, return or proof of service, or other document or pleading filed in any court of this State is required or permitted to be verified, or made, sworn to or verified under oath, such requirement or permission is hereby defined to include a certification of such pleading, affidavit or other document under penalty of perjury as provided in this Section.

Whenever any such pleading, affidavit or other document is so certified, the several matters stated shall be stated positively or upon information and belief only, according to the fact. The person or persons having knowledge of the matters stated in a pleading, affidavit or other document certified in accordance with this Section shall subscribe to a certification in substantially the following form: Under penalties as provided by law pursuant to Section 1‑109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true.

Any pleading, affidavit or other document certified in accordance with this Section may be used in the same manner and with the same force and effect as though subscribed and sworn to under oath.

Any person who makes a false statement, material to the issue or point in question, which he does not believe to be true, in any pleading, affidavit or other document certified by such person in accordance with this Section shall be guilty of a Class 3 felony.

(Source: P.A. 83‑916.)”

All that Section 1-109 does is lay down the use of certification in civil matters. It is the rule by which certification may be used, and only in accordance with Civil Procedure. Section 32-2 of the Criminal Code goes on to define what perjury is and the penalties for committing. It is found here http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt%2E+32&ActID=1876&ChapterID=53&SeqStart=74000000&SeqEnd=77100000

and states “(720 ILCS 5/32‑2) (from Ch. 38, par. 32‑2)

Sec. 32‑2. Perjury.

(a) 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.

(b) Proof of Falsity.

An indictment or information for perjury alleging that the offender, under oath, has made contradictory statements, material to the issue or point in question, in the same or in different proceedings, where such oath or affirmation is required, need not specify which statement is false. At the trial, the prosecution need not establish which statement is false.

(c) Admission of Falsity.

Where the contradictory statements are made in the same continuous trial, an admission by the offender in that same continuous trial of the falsity of a contradictory statement shall bar prosecution therefor under any provisions of this Code.

(d) A person shall be exempt from prosecution under subsection (a) of this Section if he is a peace officer who uses a false or fictitious name in the enforcement of the criminal laws, and such use is approved in writing as provided in Section 10‑1 of “The Liquor Control Act of 1934”, as amended, Section 5 of “An Act in relation to the use of an assumed name in the conduct or transaction of business in this State”, approved July 17, 1941, as amended, or Section 2605‑200 of the Department of State Police Law (20 ILCS 2605/2605‑200). However, this exemption shall not apply to testimony in judicial proceedings where the identity of the peace officer is material to the issue, and he is ordered by the court to disclose his identity.

(e) Sentence.

Perjury is a Class 3 felony.

(Source: P.A. 91‑239, eff. 1‑1‑00.)”

[10]This statement deals with traffic and conservation offenses, which are not crimes, but rather administrative or civil offenses. The form of the traffic or conservation offense is determined by the Illinois Supreme Court and the Conference of Chief Circuit Judges. For the purposes of this discussion, the applicability of this statement pertains to notice and charging of an offense. The Illinois Supreme Court website where this is discussed is here http://www.state.il.us/court/SupremeCourt/Rules/Art_V/ArtV.htm#Rule%20552

Under “Notice to Appear” it states “(e) Notice to Appear. In all cases in which a defendant is issued a Notice to Appear under section 107–12 of the Code of Criminal Procedure of 1963, as amended (725 ILCS 5/107–12), and fails to appear on the date set for appearance, or any date to which the case may be continued, the court may enter an ex parte judgment of conviction against an accused charged with an offense punishable by a fine only and in so doing shall assess fines, penalties and costs in an amount not to exceed equal to the cash bail required by this article. Payment received for fines, penalties, and costs assessed following the entry of an ex parte judgment shall be disbursed by the clerk pursuant to Rule 529. The clerk of the court shall notify the Secretary of State of the conviction pursuant to Rule 552 and of the unsatisfied judgment pursuant to section 6–306.6(a) of the Illinois Vehicle Code, as amended (625 ILCS 5/6–306.6(a)). In lieu of the foregoing procedure, a summons or warrant of arrest may be issued.

Committee Comments

(December 5, 2003)

Supreme Court Rule 556 (“Procedure if Defendant Fails to Appear”) delineates several procedures if the defendant fails to appear after depositing a driver’s license in lieu of bond, executes a written promise to comply, posts bond or issued a notice to appear.

The rule provided that the court may “enter an ex parte judgment of conviction against any accused charged with an offense punishable by a fine only and in so doing shall assess fines, penalties and costs in an amount not to exceed the cash bail required by this article.” Rule 556 does not detail the specific costs and penalties, or their amounts, in the entry of ex parte judgments. The clerk is then left with deciding which costs, fees and additional penalties (and their amounts) should be applied. This is currently being determined on a county by county basis.”

Notice how this rule, pertaining to traffic and conservation offenses, deal with Civil Procedure. Nothing in this rule addresses criminal matters, and deals with offenses punishable by “fine only”, which is considered a “petty offense”. Also, notice the last few words of this section state that such a complaint constitutes a complaint to which the defendant may plead. This means the defendant, if willing to voluntarily plead to this type of complaint, waives all his rights to having a sworn complaint filed. Read carefully the next excerpt from an Illinois Appellate case where this very issue is addressed by the court. I am quoting from People v. Brausam, 83 Ill.App.2d 354, 227 N.E.2d 533

“The charge against the defendant was initiated by an unverified ‘Illinois Uniform Traffic Ticket and Complaint.’ It was in the form prescribed by Supreme Court Rule, par. C, relating to ‘Procedures in Traffic Cases, Quasi-Criminal Cases and Certain Misdemeanors.’ (S.H.A. ch. 110, par. 102.1; also see: Ill.Rev.Stat.1965, ch. 16, pars. 81-85 incl.) The defendant contends that the judgment should be reversed in thathe had a right to be tried upon a verified complaint, and further, that the complaint was fatally defective since it did not adequately charge the offense of ‘drag racing.’

 

No pretrial motion was made by the defendant. He proceeded to trial without objection to the form of the complaint. After judgment, he filed a motion in arrest of judgment, asserting, among other things, that the complaint was not verified and that it failed to state a criminal or quasi-criminal offense within the statute under which he was charged.

 

It is readily apparent that the Supreme Court Rule governing procedures in traffic cases, quasi-criminal cases and certain misdemeanors, does not contemplate that the Illinois Uniform Traffic Ticket and Complaint be verified. The court, in People v. Harding, 34 Ill.2d 475, 216 N.E.2d 147 (1966), made an exhaustive analysis of its Rule and the statutes pertaining to the same subject matter. (Ill.Rev.Stat.1965, ch. 16, pars. 81-85 incl.; ch. 38, pars. 107-9, 107-11, 107-12 and par. 111-3(a)(b).) The court there pointed out that there is no constitutional provision requiring verification of the complaint which follows an arrest without a warrant. So far as the relevant constitutional provisions are concerned, they may require a sworn complaint as a prerequisite to the issuance of an arrest warrant, but they do not purport to lay down any jurisdictional prerequisites governing the institution of a criminal prosecution. The court stated at pages 482 and 483, 216 N.E.2d at pages 151 and 152

 

‘The Code of Criminal Procedure, enacted in 1963, retains the substance of the former statutory provisions with respect to the issuance of arrest warrants upon complaints and informations. (Ill.Rev.Stat.1965, chap. 38, par. 107-9.) But it also provides for the use of a summons, or a notice to appear, as ‘procedures for getting persons into court without the necessity and inconvenience of an immediate arrest.’ (S.H.A., chap. 38, pars. 107-11; 107-12, Committee Comments.) Although, as we have held, there is no constitutional requirement that a complaint must be verified in order to sustain a criminal prosecution, the Code continues the statutory requirement of a sworn complaint. Ill.Rev.Stat.1965, chap. 38, par. 111-3(b).

 

‘In many decisions it has been held that a complaint, defective because it was not verified, or verified upon information and belief, did not affect the jurisdiction of the court and that the right to be charged by a properly verified information can be waived. (Citations.) So far as the objection of want of verification is concerned, therefore, the unverified traffic ticket complaint used in this case would have sufficed to give the court jurisdiction if the defendant had waived the objection by going to trial without raising it, or by a plea of guilty.

 

‘The adoption by this court of the rule which authorized the use of the unverified form of Illinois Uniform Traffic Ticket and Complaint was not intended to dispense with the statutory requirement of a verified complaint, and we hold that a defendant who does not waive, by plea of guilty or by proceeding to trial without objection, the defective verification of a complaint, is entitled to be prosecuted upon a complaint which states upon the oath of the complainant the facts constituting the offense charged.’

 

The most that can be said for the requirement of verification of a traffic ticket and complaint, such as that before us, is that the Code of Criminal Procedure continues the requirement that a complaint be verified in order to sustain a criminal prosecution. (Ill.Rev.Stat.1965, ch. 38, par. 111-3(b).) The lack of verification, however, does not affect the jurisdiction of the court. The right to be charged by a properly verified complaint can be waived and, in fact, is waived unless the accused pleads guilty or proceeds to trial without an appropriate pretrial motion or objection.   People v. Harding, supra, 482, 483, 216 N.E.2d 147; Village of Willowbrook v. Miller, 72 Ill.App.2d 30, 34, 217 N.E.2d 809 (1966). The want of verification was not appropriately raised in the case at bar, and accordingly, we hold that the defendant has waived any right to object to the lack of verification.

People v. Brausam, 83 Ill.App.2d 354, 227 N.E.2d 533

That is pretty conclusive. There need not be a verified complaint for the court to have jurisdiction or to commence a prosecution because you may waive all your rights to a verified complaint and therefore submit to the jurisdiction. However, you have a right to demand a verified complaint, and if so, the court must have one before it can sustain a prosecution. Notice the statement in bold where the court says the traffic ticket is a procedure for getting persons into court without the necessity and inconvenience of an immediate arrest. They use the defective traffic ticket to get you into court and submit to jurisdiction without the necessity and inconvenience of there being a sworn criminal complaint.

[11]This statement summarized the discussion on complaints, particularly traffic and conservation offenses, where you may plead to the defective complaint unless you demand that a verified complaint be filed. This means that the court will have to require the complainant to swear to a complaint and have an arrest warrant issued, something they are not likely to do. This would require the police officer who issued the ticket to come before a judge with a written complaint that has been sworn to before someone authorized to administer oaths. This is what the court referred to as the “necessity and inconvenience”.

Notice how all but indictment requires a verified written statement. That is because the Grand Jury is sworn in when empaneled and all of their indictments derive from that oath, therefore, they do not need to issue a verified statement since they are already sworn in. However, both a complaint and an information must be supported by written sworn statements. Let’s look at what “verification” means.

“Verification”, has been held by Courts of this State to mean a written statement made under oath or affirmation before any officer empowered to administer oaths and which, for any willfully false or misleading statement made thereof, subjects the affiant to pains and penalty of perjury. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809, People v. Siex, App.1942, 39 N.E.2d 84, 312 Ill.App. 657.

Now, what is this “officer empowered to administer oaths”? Fortunately, the answer is readily available for that as well.

The power to administer oaths derives from the Legislature and codified at 5 ILCS 5/255 et. seq. (Oaths and Affirmations Act)

While we’re digging, let’s look at who the Oaths and Affirmations Act embraces as an “officer empowered to administer oaths”.

(5 ILCS 255/2) (from Ch. 101, par. 2)     Sec. 2. Affidavits and depositions. All courts, and judges, and the clerks thereof, the county clerk, deputy county clerk, the Secretary of State, notaries public, and persons certified under the Illinois Certified Shorthand Reporters Act of 1984 may, in their respective districts, circuits, counties or jurisdictions, administer all oaths of office and all other oaths authorized or required of any officer or other person, and take affidavits and depositions concerning any matter or thing, process or proceeding commenced or to be commenced, or pending in any court or before them, or on any occasion wherein any affidavit or deposition is authorized or required by law to be taken.

Before we go on, the statute goes on to even define a judge:

(5 ILCS 255/7)     Sec. 7. Definition of judge. For the purposes of this Act, “judge” means (i) an incumbent judge of the Illinois Supreme, Appellate, or Circuit Court, whether elected or appointed, (ii) a retired judge of the Illinois Supreme, Appellate, or Circuit Court, and (iii) an incumbent or retired associate judge of the Illinois Circuit Court. The term “judge” does not include a judge who has been convicted of a felony or who has been removed from office by the Illinois Courts Commission. (Source: P.A. 95‑498, eff. 1‑1‑08.)

This does not include municipal judges, administrative law judges, or circuit court judges.

So, what is the significance of “verification”? Let’s look:

(5 ILCS 255/5) (from Ch. 101, par. 5)     Sec. 5. All oaths, affirmations, affidavits and depositions, administered or taken as provided in this act, shall subject any person who shall so swear or affirm willfully and falsely, in matter material to any issue or point in question, to the like pains and penalties as are inflicted by law on persons convicted of willful and corrupt perjury. (Source: R.S. 1874, p. 725.)

Verification is required because if the person so swearing does so falsely they will be held to answer for willful and corrupt perjury. I believe this is why State’s Attorneys do not issue proper informations in many cases because the charges are fraudulent to begin with. I believe most of them know the law either does not apply to most people in most cases, or they know they do not have knowledge of facts sufficient to charge an offense and therefore cannot swear to them. They rely upon people’s ignorance of the law and the intimidation of them being assailed by a system that relies upon imprisonment and threats for its survival.

Now I will examine the various types of ways an offense is charged and the legal requirements and defects as they are used today.

What is a charge?

(725 ILCS 5/102‑8) (from Ch. 38, par. 102‑8)     Sec. 102‑8. “Charge”.  “Charge” means a written statement presented to a court accusing a person of the commission of an offense and includes complaint, information and indictment. (Source: Laws 1963, p. 2836.)

So a charge is a written statement in the form of a complaint, information, or indictment which charges an offense. Let’s examine what an “offense” is.

(725 ILCS 5/102‑15) (from Ch. 38, par. 102‑15)  Sec. 102‑15. “Offense”. “Offense” means a violation of any penal statute of this State. (Source: P.A. 76‑1796.)

Well, that seems clear enough, but what do they mean by “penal statute”? I do not find a definition for penal statute. There are various types of offenses, generally speaking. These include ordinance violation, petty offense, misdemeanor, and felony. What I do find is a definition for “penal institution”, which may shed light on what a penal statute is, since violators of penal statutes would be sentenced to a penal institution.

(720 ILCS 5/2‑14) (from Ch. 38, par. 2‑14)  Sec. 2‑14. “Penal institution”.  “Penal institution” means a penitentiary, state farm, reformatory, prison, jail, house of correction, or other institution for the incarceration or custody of persons under sentence for offenses or awaiting trial or sentence for offenses. (Source: Laws 1961, p. 1983.)

So it would appear that offenses only apply to those which include the possibility of someone being sentenced to serve time in some sort of jail or other form of confinement. For a good layman’s breakdown of the different types and their corresponding punishment I found the Illinois State Bar Association to be very helpful:

In Illinois, most traffic charges are categorized as either “petty” or “misdemeanor” offenses.

Petty offenses are those punishable by fine only. They include stop sign and red light violations, most speeding tickets, lane change violations and driving without insurance. Fines range from $1.00 to $1,000. Fines are either payable on the day assessed or on such later date as the court may direct.

Misdemeanors are divided into three (3) classes, referred to as Class A, B and C.

Class A is the most serious. It includes violations such as driving under the influence, speeding 40 or more miles over the posted speed limit, driving while license suspended or revoked, reckless driving or leaving the scene of an accident. The possible penalties for Class A misdemeanors are up to 364 days in jail and/or fines up to $2,500. Day for day good time credit applies to most misdemeanor jail sentences.

Class B misdemeanors, such as selling or providing a fraudulent driver’s license or permit, carry a possible penalty of up to six (6) months in jail and/or fines up to $1500.

Class C misdemeanors, such as drag racing, are punishable by jail up to thirty (30) days and/or fines up to $1,000.

Examining the above, it appears that those items listed under “petty offense” and which have a punishment by fine only are not really offenses. A penal institution is for receiving those who are subject to confinement for violating a penal statute and petty offenses are not included in that category. While on this subject, we need to also look at ordinance violations. Those are particularly interesting because they have been deemed to be “quasi-criminal” in nature.

While regarding ordinance-violation proceedings as civil in form, this Court has traditionally characterized them as quasi-criminal. City of Danville vs. Hartshorn, 53 Ill.2d 399, 292 N.E.2d 382 (1973)

Civil cases are of two kinds, those purely civil and those quasi criminal. A quasi criminal case is not a criminal case but is a civil case, somewhat resembling in its nature a criminal case. That a quasi criminal offense is not a criminal offense as defined by the criminal code is, under the authorities, clear. Wiggins v. City, 78 Ill. 375, Tully v. Northfield, 6 Ill.App. 358

Quasi-Criminal Nature (See also Quasi and see the title Penalties) – The constitution of Illinois conferred upon a certain court jurisdiction in cases of a quasi-criminal nature. It was held that the phrase “quasi-criminal nature” was intended to embrace all offenses not crimes or misdemeanors, but which are in the nature of crimes, and which are punished, not by indictment, but by forfeitures and penalties. It includes all qui tam actions, prosecutions for bastardy, informations in the nature of quo warranto, and suits for the violations of ordinances. Wiggins v. Chicago, 68 Ill. 372

Quasi-Criminal Cases – The violation of an ordinance is embraced in the phrase “of a quasi-criminal nature.” Wiggins v. Chicago, 68 Ill. 372

I do not mean to digress from the theme of this piece, but we are determining how the State charges offenses and in order to do that we must understand what offenses are. So, if the criminal code, criminal procedure…etc. apply only to “offenses” which are a violation of a “penal statute”. Therefore, to wrap up this discussion on ordinances we find:

Police can only arrest you with a warrant, if they witness a crime, or have reasonable grounds to believe an offense is being, or has been, committed.

725 ILCS 5/107-2. Arrest by Peace Officer Arrest by Peace Officer. (1) A peace officer may arrest a person when:(c) He has reasonable grounds to believe that the person is committing or has committed an offense.

Offenses are violations of the State’s penal statutes.

725 ILCS 5/102-15. “Offense” “Offense.” “Offense” means a violation of any penal statute of this State.

Municipal ordinance violations are not offenses.

Municipal ordinance violations do not fall within the definition of an “offense” under either the Criminal Code or the Code of Criminal Procedure. City of Champaign v. Torres, 214 Ill.2d 234, 824 N.E.2d 624 (2005)

Therefore, you cannot be arrested for violating an ordinance without a warrant. Period. If you may only be arrested without a warrant for an offense, and ordinances are not offenses, you cannot be arrested for violating an ordinance without a warrant, even if in the presence of a police officer. However, there are procedures in place for prosecuting ordinance violations, and those are outlined next. There must be a summons or a warrant supported by affidavit, which means it must be sworn to by the person alleging the violation. If you are served notice by mail it must be done by certified mail, return receipt requested. The police may serve summons for an ordinance violation, but again, there must be a sworn affidavit before the summons can be issued.

65 ILCS 5/1-2-9. Summons or warrant; trial without delay§ 1-2-9. Except as provided in Section 1-2-9.1 of this Act, in all actions for the violation of any municipal ordinance, the first process shall be a summons or a warrant. A warrant for the arrest of an accused person may issue upon the affidavit of any person that an ordinance has been violated, and that the person making the complaint has reasonable grounds to believe that the party charged is guilty thereof. Every person arrested upon a warrant, without unnecessary delay, shall be taken before the proper officer for trial.

65 ILCS 5/1-2-9.1. Service by certified mail§ 1-2-9.1. Service by certified mail. In all actions for violation of any municipal ordinance where the fine would not be in excess of $750 and no jail term could be imposed, service of summons may be made by the city clerk by certified mail, return receipt requested, whether service is to be within or without the State.People ex rel Devine v. $30,700 U.S. Currency, 199 Ill. 2d 142, 766 N. E. 2d 1084 (2002)

65 ILCS 5/1-2-11. Sheriff; service of process; arrest; housing authority police(b) Police officers may serve summons for violations of ordinances occurring within their municipalities.725 ILCS 5/107-11.

When summons may be issued(c) The summons may be served in the same manner as the summons in a civil action, except that police officers may serve summons for violations of ordinances occurring within their municipalities.

65 ILCS 5/1-2-9. Summons or warrant; trial without delay§ 1-2-9. Except as provided in Section 1-2-9.1 of this Act, in all actions for the violation of any municipal ordinance, the first process shall be a summons or a warrant. A warrant for the arrest of an accused person may issue upon the affidavit of any person that an ordinance has been violated, and that the person making the complaint has reasonable grounds to believe that the party charged is guilty thereof. Every person arrested upon a warrant, without unnecessary delay, shall be taken before the proper officer for trial.

To close the book on ordinances, they are not complaints, informations, or indictments. For an illustrative case, read City of Danville v. Hartshorn.

While I am making fine legal distinctions, we need to examine some things that are not complaints, informations, or indictments. For instance, many people believe that traffic offenses are criminal offenses. Most of the preceding definitions come from the Illinois Criminal Code of 1963 and the Code of Criminal Procedure. However, traffic or vehicle offenses are not criminal  nature, but civil or administrative infractions. The jurisdictions of each are different. Of course, we all believe we are in Illinois and Illinois is considered a State. However, the law goes on to define what a State is for the purposes of different parts of the statute. We are primarily dealing with criminal law in this article, but the courts often intermingle traffic offenses which make people believe they face criminal penalties. Depending on where you are in relation to “this State”, which may or may not mean Illinois, the jurisdiction or right of the State to even bring charges against someone, may differ. First we’ll look at the definition of “State” as it is used in the criminal code:

Quoting the Criminal Code of 1961 – (720 ILCS 5/2‑21) (from Ch. 38, par. 2‑21)  Sec. 2‑21. “State”.  “State” or “this State” means the State of Illinois, and all land and water in respect to which the State of Illinois has either exclusive or concurrent jurisdiction, and the air space above such land and water. “Other state” means any state or territory of the United States, the District of Columbia and the Commonwealth of Puerto Rico. (Source: Laws 1961, p. 1983.)

Quoting the Illinois Motor Vehicle Code – (625 ILCS 5/1‑195) (from Ch. 95 1/2, par. 1‑195) Sec. 1‑195. State.  A state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or a province of the Dominion of Canada. (Source: P.A. 76‑1586.)

Look closely at the two definitions. Do not believe that they are interchangeable. The legislature defined them this way specifically for the statute to which they apply. When you deal with criminal law you are dealing with the actions of people. Crime is committed by individuals against individuals or their property. Corporations are also considered “persons” and can be held criminally responsible for certain act, but crimes are committed by people against people. The State of Illinois is formed by the people who are represented by the legislature. Crimes against people are reflected in the State of Illinois Criminal Code. However, vehicular or traffic infractions cannot apply to the people generally as criminal offenses. The word State does not necessarily mean Illinois. There are commercial offenses which include commerce intrastate and interstate. The US Constitution gives Congress the power to regulate commerce. Therefore, I posit that traffic offenses apply to commercial activities under the regulations promulgated by Congress regarding interstate and intrastate commerce. That authority is reflected in the Vehicle Code as penalties imposed by the State, but not the State of Illinois. State, in that sense, is a commercial jurisdiction that co-exists with the common law jurisdiction of criminal statutes. The definition of State, as used in the Criminal Code actually excludes the definition of State used in the Vehicle Code. Vehicle Code offenses actually occur in the State known as the “other State” defined in the Criminal Code.

Summary of ordinance violations, petty offenses, and traffic violations – An arrest cannot be made for petty offenses or traffic violations. Arrests can be made for ordinance violations only if there is a sworn affidavit filed. Traffic tickets are  not complaints, informations, or indictments since there is not a sworn complaint presented to a court and corresponding arrest warrant. I will touch on this in more detail as I get into the analysis of the various forms used to charge or allege offenses.

Complaint

What it is: (725 ILCS 5/102‑9) (from Ch. 38, par. 102‑9)  Sec. 102‑9. “Complaint”.  “Complaint” means a verified written statement other than an information or an indictment, presented to a court, which charges the commission of an offense. (Source: Laws 1963, p. 2836.)

Next, we’ll look at what the Illinois statutes say about arrest by complaint. I’ll emphasize particular words and phrases in the statute and then post copies of a verified complaint and arrest warrant.

(725 ILCS 5/107‑9) (from Ch. 38, par. 107‑9)  Sec. 107‑9.

Issuance of arrest warrant upon complaint. (a) When a complaint is presented to a court charging that an offense has been committed it shall examine upon oath or affirmation the complainant or any witnesses.

(b) The complaint shall be in writing and shall:

(1) State the name of the accused if known, and if  not known the accused may be designated by any name or description by which he can be identified with reasonable certainty;

(2) State the offense with which the accused is charged;

(3) State the time and place of the offense as definitely as can be done by the complainant; and

(4) Be subscribed and sworn to by the complainant.

(c) A warrant shall be issued by the court for the arrest of the person complained against if it appears from the contents of the complaint and the examination of the complainant or other witnesses, if any, that the person against whom the complaint was made has committed an offense.

(d) The warrant of arrest shall:

(1) Be in writing;

(2) Specify the name, sex and birth date of the person to be arrested or if his name, sex or birth date is unknown, shall designate such person by any name or description by which he can be identified with reasonable certainty;

(3) Set forth the nature of the offense;

(4) State the date when issued and the municipality or county where issued;

(5) Be signed by the judge of the court with the title of his office;

(6) Command that the person against whom the complaint was made be arrested and brought before the court issuing the warrant or if he is absent or unable to act before the nearest or most accessible court in the same county;

(7) Specify the amount of bail; and

(8) Specify any geographical limitation placed on the execution of the warrant, but such limitation shall not be expressed in mileage.

(e) The warrant shall be directed to all peace officers in the State. It shall be executed by the peace officer, or by a private person specially named therein, at any location within the geographic limitation for execution placed on the warrant. If no geographic limitation is placed on the warrant, then it may be executed anywhere in the State.

(f) The warrant may be issued electronically or electromagnetically by use of a facsimile transmission machine and any such warrant shall have the same validity as a written warrant. (Source: P.A. 86‑298; 87‑523.)

First of all, notice the word “shall”. Shall, is a direction to the court. It is a command. It is not discretionary. The judge or whoever the command is being directed towards must do take that action as a requirement for the statute. A complaint is presented to a court charging an offense. That means something other than a petty offense or ordinance violation, punishable by fine only. Here is something interesting. It also states, “shall examine upon oath or affirmation the complainant or any witnesses.” This means the court must examine the complainant or any witness with them being either orally sworn in. The complaint itself must be in writing and the complainant must also be examined by the judge under oath or affirmation before issuing an arrest warrant.

Although an arrest warrant may be issued only upon a showing of probable cause, it does not necessarily follow that a demonstration of probable cause must be made in complaint upon which arrest warrant is issued; in issuing arrest warrant, judge is not bound by four corners of complaint, but may base a determination of probable cause upon his required examination of complainant or witnesses. People v. Collins,App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387 N.E.2d 995. Criminal Law 217

What is being said here is that probable cause does not rest solely with the complaint. It is required that the judge examine the complainant or witness, and upon that testimony he may find probable cause. This is because not everyone may possess the faculties required to pen a proper complaint and what may be lacking in the complaint is supplemented by the testimony of the complainant.

In compliance with this paragraph, judge issuing arrest warrants properly examined complainant to determine probable cause prior to issuing warrants over his signature. People v. Collins, App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387N.E.2d 995. Criminal Law217

Where complaint was signed by complainant and was acknowledged before notary public, who was not an associate circuit judge or magistrate, and after complaint was signed and sworn to, it was presented to associate circuit judge, who heard no testimony, and solely on basis of examination of complaint, ordered warrant of arrest to issue, warrant was properly quashed because of failure of associate circuit judge to examine complainant or other witnesses as required by this paragraph.People v. Krumery, App.1966, 74 Ill.App.2d 298, 220 N.E.2d 241. Criminal Law217

What is being said here is what illustrates the necessity for the judge to examine the complainant or witness. It is important to keep this in mind when making your complaint because if the judge does not examine the complainant or witness it will prove fatal to your case. I can envision a situation where a judge will sabotage a case by failing to examine the complainant or witness, as in what took place in the above case. I would recommend being adamant about the judge examining you or the witness to ensure no defect in the warrant ensues which would result in a dismissal.

Let’s review an alleged “verified complaint” and ensuing arrest warrant. This complaint is made out by the State’s Attorney and verified or sworn to by the State Police officer. The State’s Attorney does not sign the complaint, but rather stamps it.  The warrant is likewise unlawful. The specified “offense” is “failure to appear or pay charge” when the complaint is for unlicensed driving. The warrant is not supported by the complaint. The defendant in this case was ticketed on July 29, 2010 and the verified complaint was not filed August 25, 2010 upon his filing a demand for a verified complaint. Until a complaint is filed and the complainant examined by a judge there can be no warrant and no jurisdiction. The warrant was not issued until September 14, 2010, and even then it was issued for a non-existent offense.

Dealing with the issue of the “signing” of the information or complaint, the statutes deal with this very issue:

(5 ILCS 70/1.15) (from Ch. 1, par. 1016)     Sec. 1.15. “Written” and “in writing” may include printing, electronic, and any other mode of representing words and letters; but when the written signature of any person is required by law on any official or public writing or bond, required by law, it shall be (1) the proper handwriting of such person or, in case he is unable to write, his proper mark or (2) an electronic signature as defined in the Electronic Commerce Security Act, except as otherwise provided by law. (Source: P.A. 90‑759, eff. 7‑1‑99.)

Of course, it references the Electronic Commerce Security Act which, in my opinion, does not apply to signatures on charging documents. That act can be read here and is evidently intended to deal with matters in commerce or commercial considerations, hence the name.

 

So what we have here is a defective complaint and defective warrant. The complaint has not been verified even though it is sworn to because of two things. It is signed by the State’s Attorney. A complaint is used by a complainant to charge an offense, not the State’s Attorney. The State’s Attorney uses an information. If the police officer signed the complaint then it would be proper, but he didn’t. Second, the affidavit below was sworn to by the officer, not the State’s Attorney. Only the person making the complaint can sign the affidavit. Since they are the one making the charge they also must be the one swearing to it. If you look at the signature if the State’s Attorney, you will also see it is a rubber stamp. There is no telling who actually signed, or stamped, this complaint. I also posit that the judge never examined the complainant as to the facts alleged in order to issue the warrant. The warrant which was issued is for a non-offense, failure to appear. The complaint is for unlicensed driving. How does a judge issue a warrant for an offense that does not appear on the complaint? This is an outright fraud and the court never acquired jurisdiction in this case. This, however, is not uncommon. It happens all the time to many people and they never look at the charging documents for defects like this because they do not know. They appear in court and enter pleas to charges that are not properly filed, thereby submitting to jurisdiction. They are undone by their own ignorance.

Now we’re going to look at an information. The difference between an information and a complaint is that a complaint is presented by someone other than the State, such as you or I. I disagree that police can sign as a complainant since they work for the State. Police should go to the State’s Attorney with the charges and the State’s Attorney then file an information. If a police officer would file a complaint then he must do so in writing and swear to it, as well as present it to a court to then be examined by the judge before issuing a warrant. An information is presented by a State’s Attorney, but it must also be sworn to by him and presented to a court before a warrant can be issued. Remember, without a warrant there is no jurisdiction. There is a distinction between a complaint and an information. What I will show you next is an information that looks remarkably like the previous complaint, only it is titled Information. Same rules apply to both, only the Information is presented by the State’s Attorney. Take a look and see if there is any difference aside from the caption.

I will be concluding this piece with an analysis of traffic tickets and Uniform Traffic Citation and Complaint. This has been discussed in-part above, but examples of requirements and common defects will be included.

 

Critics: Obamas Latest Long-Form Birth Certificate Is a Fake Update: More Expert Opinion

Critics: Obama’s Latest Long-Form Birth Certificate Is a Fake – Update: More Expert Opinion

PLEASE FORWARD THIS MESSAGE TO THOSE YOU BELIEVE WOULD BE INTERESTED

Long-form pdf link.

Photoshop expert and author of more than 17 books on computer graphics Mara Z. sent this in:

This is so maddening to listen to the media on this recent revelation… it’s such an obvious fake.

(Click on image for larger view)

Look at the attached JPG… (which shows what you will see when opening the PDF in Illustrator and how to get there)… but to recap… if you open the PDF in Illustrator (instead of Photoshop) – Select the entire document and go to the Object menu and choose Clipping Mask > Release. Repeat as necessary until all clipping masks are released. Also open the Layer and turn off the visibility of each clipping group and you can see all the numerous places in which information was added (edited) into the form.

Lastly, look at the attached 1961 sample image found on the Internet of a legitimate 1961 Hawaii Birth Certificate (which someone posted to show what a real certificate would look like from that year in Hawaii)… look at the marks on this Internet version and you can see this was the template for Obama’s BC handiwork. The handwriting is exactly the same between posted Internet image and Obama’s fake version — the placement of boxes and marks are in the exact same position, dates are where the modified clipping masks occur to adjust dates to fit for Obama, but the handwriting of dates match (except for the clipping mask changes). Even the Cert. number is only off by the last two digits (which…you guessed it… happens to be a clipping mask layer).

Finally, also wanted to make the point that regardless of where Obama is born, he’s still not a Natural Born Citizen since both parents were not born on U.S. soil but I won’t hold my breath waiting for the media to educate the public on this fact.

More doubt… Another graphics designer reported it was a fake.

UPDATE: Another expert John G. sent in these comments and this image:

(Click to Enlarge)

I have been using Adobe Illustrator since the original version (Illustrator 88) came out in 1988.

I have attached a few Illustrator files that I believe will provide evidence that I am indeed an illustrator expert. I can send out the original files if you wish.

The comments made by Mara Z are very interesting. The first question is – what was the source of this pdf file? If the pdf file came from Obama’s people, the claims that this document was “doctored” may indeed be of merit. The first question is, why are there any layers on this document at all? It was clearly created in Photoshop, which is always used for image processing.

The second question is, if you look at the file I have sent as Obama Certificate Actions 01, you can see in the actions palette that there were 24 actions performed on this file before it was made into a pdf. Many of the actions are not Illustrator functions, but are Photoshop actions. Thus, this file was created in Photoshop, and exported as Photoshop 5 (why, that’s a very old version?) and it was next saved for the web (a Photoshop action) three times.

Again, first, we need to ascertain where this file came from.

DON’T you KNOW that ANONYMOUS experts have SUPPOSEDLY already “exposed” it as an ALLEGED “forgery”?

Obama Birth Certificate fraud

http://www.youtube.com/watch?v=Pt7oi2qfxlY&feature=player_embedded

Critics: Obama’s Latest Long-Form Birth Certificate Is a Fake

http://gatewaypundit.rightnetwork.com/2011/04/critics-obamas-latest-long-form-birth-certificate-is-a-fake/

IMAGINE THAT???  A birth certificate that has been PURPORTEDLY “fabricated” over the past three years & in a few hours after it’s release it is SUPPOSEDLY “exposed” by ANONYMOUS “experts”?   One of WHOM is a SUPPOSED “Photoshop expert and author of more than 17 books on computer graphics” that CHOOSES to remain ANONYMOUS & goes by “Mara Z”.

HOLY SHADES of “Techdude”, Batman!!!  Is it a REPEAT or a REMAKE???

Techdude delivers a final report that exceeds my wildest expectations. It is irrefutable, empirical evidence – Obama’s birth certificate is a forgery. Why? Why a COLB (certificate of live birth) forgery? That is the question.

My deepest thanks and appreciation for Techdude’s unwavering commitment to the truth despite the threats and harassment, the slashed tires and the dead animal on his porch.

Insofar as “techdude’s” credentials, he is an active member of the Association of Certified Fraud Examiners, American College of Forensic Examiners, The International Society of Forensic Computer Examiners, International Information Systems Forensics Association – the list goes on. He also a board certified as a forensic computer examiner, a certificated legal investigator, and a licensed private investigator. He has been performing computer based forensic investigations since 1993 (although back then it did not even have a formal name yet) and he has performed countless investigations since then.

http://atlasshrugs2000.typepad.com/atlas_shrugs/2008/07/atlas-exclusive.html

A separate WND investigation into Obama’s certification of live birth utilizing forgery experts also found the document to be authentic. The investigation also revealed methods used by some of the bloggers to determine the document was fake involved forgeries, in that a few bloggers added text and images to the certificate scan that weren’t originally there.

(Editor’s note: WND’s investigation into the certification of live birth did not include inspecting the actual document, but only asking experts to evaluate the online image. Those experts, therefore, could not “prove” the document’s authenticity. The experts told WND merely that many of the forgery claims made against the image were inconclusive or falsified, leaving them no evidence that would cast doubt on the image’s authenticity.)

http://www.wnd.com/index.php?fa=PAGE.view&pageId=73214

People can “believe” anything, IF they WANT to “believe” it enough.  It’s called SUSPENSION OF DISBELIEF & ILLUSIONIST, MOVIE MAKERS, PROPAGANDISTS & users of MIND CONTROL use it all the time.

The principles of mind control, hypnotic suggestion and, mental programming are ancient (the term used doesn’t matter, the principles remain the same). The goal is to suspend the thought processes of the conscious mind to cause a state of mind that is just like “day dreaming.” Stop conscious thought and the mind is in its most suggestible state and is more receptive to programming than at any other time. Therefore, the first principle of mind control is distraction. Distraction focuses the attention of the conscious mind on one or more of the five senses (sight, sound, touch, smell and taste) in order to program the subconscious mind.

What the conscious mind believes, the subconscious acts on. It works like programming a computer. You feed information into a computer, and the computer acts on it. However, if the information you feed into the computer is wrong, it still acts on it! If you give yourself incorrect information or if others give you incorrect information, the memory banks of your subconscious mind do not correct the error but act on it!

Now remember the first principle behind mental programming. That principle is distraction. Distraction focuses the attention of the conscious mind on one or more of the five senses in order to program the subconscious mind. The same principle applies to all illusion, magic and propaganda. The second principle of mental programming is repetition. Distraction and repetition represent the learning process.

If you accept the information as true, it is programmed that way to your subconscious mind. If you reject the information as false, that is programmed to your subconscious mind. However, if you don’t know if the information is true or not, a curious thing happens. Your trust in the source of the information determines whether or not you accept the information. If you do not believe that a book could contain information that was false (unintentionally or intentionally), then you would accept its information as true even if you weren’t sure or didn’t understand it. This is especially true in school where there is pressure to accept what is presented as true because that is what is expected and that determines your grade and your future. Repetition of the information imbeds it in your subconscious mind so that your acceptance of its truth (accuracy) becomes a conditioned response. You accept this information as true without thinking whenever it is presented to you again.”

Mind Control in the United States, Steven Jacobson (1985)

http://www.scribd.com/doc/2962412/Jacobson-Mind-Control-in-USA

BIRTHERS are already citing this article MOCKING them as ALLEGED “evidence” that Obama’s hospital certificate is SUPPOSEDLY a “fake”.

Will Release Of Obama’s Purported Birth Certificate Give Rise To New “Certer” Movement?

This morning’s White House release of President Barack Obama’s long form birth certificate will, of course, do little to derail the “birther” movement, which will now analyze the document with the kind of verve previously directed toward those Texas Air National Guard memos faxed to CBS from that Kinko’s in Abilene.

So here’s a few nutty points about the birth certificate sure to be seized upon by the nonbelievers:

• If the original document was in a bound volume (as reflected by the curvature of the left hand side of the certificate), how can the green patterned background of the document’s safety paper be so seamless?

• Why, if Obama was born on August 4, 1961, was the “Date Accepted by Local Reg.” four days later on August 8, 1961?

• What is the significance of the smudges in the box containing the name of the reported attendant?

• David A. Sinclair, the M.D. who purportedly signed the document, died nearly eight years ago at age 81. So he is conveniently unavailable to answer questions about Obama’s reported birth.

• In the “This Birth” box there are two mysterious Xs above “Twin” and “Triplet.” Is there a sibling or two unaccounted for?

• What is the significance of the mysterious numbers, seen vertically, on the document’s right side?

• Finally, the “Signature of Local Registrar” in box 21 may be a desperate attempt at establishing the document’s Hawaiian authenticity. Note to forgers: It is spelled “Ukulele.”

http://www.thesmokinggun.com/buster/barack-obama/birth-obama-certer-movement-098513

Anyone want to bet HOW many AFTERBIRTHERS will be citing that video & article as “gospel” tomorrow?

Same story, different day.

“How did the citizenship rumor get started? Ironically, it began when the Obama campaign tried to debunk some other conspiracies. After Obama locked up the nomination in early June, low-level talk radio and blog chatter peddled rumors that Obama’s real middle name was Muhammad, that his father was not really Barack Obama, and that he was not really born in Hawaii. The campaign released a facsimile of Obama’s certificate of live birth. Requested from the state in 2007, the certificate reported that Obama was, indeed, born in Honolulu at 7:24 p.m. on Aug. 4, 1961.

The certificate was a bullet that didn’t put down the horse. Why, skeptics asked, release a new form from Hawaii instead of the original paper that Obama’s parents got in 1961—the one that Obama found in a box of his dad’s knickknacks in Dreams From My Father? They quickly came up with an explanation: The certificate was forged. Anonymous digital image experts with handles like Techdude and Polarik sprung from the woodwork to prove (shades of Rathergate!) that pixels, spacing, and indentation on the form indicated that the Obama campaign had created the certificate with Adobe Photoshop. The state of Hawaii’s official statement that the certificate was legitimate didn’t make a dent—after all, who is Registrar of Vital Statistics Alvin Onaka to argue with Techdude?

This “forgery” became an article of faith in the Obama conspiracy community. When a Hillary Clinton supporter found a birth announcement for Obama from the Aug. 13, 1961, edition of the Honolulu Advertiser, the theorists were unbowed: After all, the Obama family could have phoned that in from Kenya. When Pennsylvania lawyer Philip J. Berg filed the first birth-related injunction against Obama this August, asking that Obama be ruled “ineligible to run for United States Office of the President,” he alleged that the certificate had been proved a forgery by the “extensive Forensic testing” of anonymous experts and claimed that Obama’s campaign had simply inserted his name over that of his half-sister, Maya. That would have been quite a trick, as Maya Soetoro-Ng was actually born in Indonesia.

None of that stopped Berg from stoking the conspiracy theorists. On Oct. 16, an Anabaptist minister named Ron McRae called Sarah Hussein Obama, the president-elect’s 86-year-old paternal step-grandmother, at her home in Kenya. Two translators were on the line when McRae asked if the elder Obama was “present” when the president-elect was born. One of the translators says “yes.” McRae contacted Berg and gave him a partial transcript of the call with a signed affidavit. He opted not to include the rest of the call, in which he asks the question more directly—”Was he born in Mombassa?”—and the translators, finally understanding him, tell him repeatedly that the president-elect was born in Hawaii.

The Hawaiian documentation, the 1961 newspaper announcement, the phony evidence from Sarah Obama—all of that aside, the idea that Obama wasn’t born in Honolulu goes against everything we know about his rather well-documented life. Barack Obama Sr. came to America as part of a 1959 program for Kenyan students—he did not return home until 1965, years after he left his wife and son. Ann Dunham was three months pregnant when she married Obama Sr. and 18 years old when she gave birth. There is no record of Dunham ever traveling to Kenya, much less the year after the Mau Mau rebellion ended, when she was pregnant and when she had no disposable income to speak of. “Ann’s mother would have gone ballistic if her daughter had even mentioned traveling to Kenya in the final stages of pregnancy,” says David Mendell, author of the biography Obama: From Promise to Power.”

http://www.slate.com/id/2206033

An Introduction to Jury Nullification

I serve as the Illinois State Contact for the Fully Informed Jury Association. My goal is to spread the idea that people serving as jurors have a right to question the validity, application, and justness of the law being used to prosecute an accused individual for a crime. There is no law which punishes or otherwise makes a crime of jury nullification. Jurors cannot be questioned about the reasoning behind their voting not guilty. If an individual is being prosecuted for a non-violent offense or for a law that is unjust, a juror has a right to vote not guilty even though the evidence of the individual having actually committed the crime is conclusive. If a juror were to find a law oppressive or unjust they could choose to spare the accused from unjust punishment by voting not guilty without any fear of retaliation or punishment.

However, most judges, when instructing jurors, will say the jurors must accept the law as handed down by the judge, and if the State proves its case beyond a reasonable doubt, they have no choice but to vote guilty. That is a bald-faced lie. Judges have no authority to compel jurors to vote in such a way. However, there is no law against judges lying to jurors, which they do all the time. If a law is oppressive and an individual tried for violating that law, and the judge instructs jurors that the only option is to vote guilty if the facts support the charge, then of what use is a jury? If it is a simple equation of do facts = charge and law = what judge says then jurors are unnecessary. If the judge dictates to the jury then he determines the guilt.

If a jury witnesses a trial where they believe the law is unjust, the facts tenuous, and the treatment of the accused harsh or abusive; yet the presentation by the prosecution to be conclusive and in accordance with the judges instruction, then they are left helpless to save the accused from punishment. They must suppress what their common sense and conscience tell them is right in order to follow the orders of a judge and place a man they believe has been treated unfairly behind bars. The jurors are nothing but puppets.

I urge any of you who are called to act as jurors to take that role with passion and begin to strike down unjust laws by voting not guilty regardless of whether the facts support the charge and regardless of the judges instructions. I also urge any of you charged with a crime to demand a trial by jury. When you agree to a bench trial you agree to let a judge arbitrarily determine, not your innocence or guilt, but how you will atone to the State for your transgression. You are not presumed innocent with a judge. You are presumed guilty. A presumption of innocence is an instruction handed down to jurors, but ignored by judges.

Remember, you have NO duty to obey the orders of a judge. You are free to vote your conscience. You have no obligation to disclose the reason for your vote and cannot be made to explain.

You must ask yourself, do I have a right to take the freedom of another human being for doing something that the State objects to, but to which no other individual was harmed? Is disobedience a crime, especially when the law disobeyed is invasive, oppressive, and unjust?

Tagged , ,

Letter to the Editor in response to Bev Mattison

Letter to the editor which ran on 4/15/11

I want to thank Bev Mattison for her 3/3/11 response to my letter where she appears amused by my “overactive imagination”.

I may be hoping for too much in overcoming Ms. Mattison’s blind allegiance to a corrupt and violent system and her role as doting sycophant, but let’s compare overactive imaginations.

There is no justification for men to lay a hand on other men, especially when the charges and reports are fabricated and unsupported by evidence. An overactive imagination is one where police “perceive a violent threat” and draw guns on unarmed, passive people before beating them. It does not take an overactive imagination to perceive a man dropping on someone’s neck as being a possible attempt at death or serious bodily harm. I have no doubt that if I were meant to be killed I would be, but there are more subtle ways of inflicting death or injury that give police the appearance of acting “within policy”.

Tell me Ms. Mattison, what does it mean to be “mostly free”? Spoken like a true slave. You take your lesser freedoms and have a nice day. Comparing the tyranny of this government, loosely speaking, with other forms of tyranny does not make this government just. I have natural, unalienable rights that are beyond the scope and authority of government. You apparently prefer men to define your rights.

Please limit your comments to what you know. You parrot conventional wisdom and hearsay. You are another voice in support of violence and corruption.

An open letter to Brendan Kelly, State's Attorney

An open letter to Brendan Kelly, State’s Attorney

Mr. Kelly, you know of me. We have met face-to-face and communicated over phone calls and email. I have published our dealings on my website, www.marcmkkoy.com. You likewise know that I have been making claims of criminal acts committed by Fairview Heights Policemen, Joshua Alemond and Aaron Nyman. We met when you were acting as Circuit Clerk, and at that time you became aware of my allegations of criminal acts committed by these officers.

Mr. Kelly, I also know that your office is in possession of video evidence of the alleged criminal acts. You possess falsified and perjured reports from these officers, as well as video from the dashboard cameras from their patrol cars. The video shows one of the officers approaching me while on my knees at gunpoint, fully compliant and passive, and then being laid on the ground then beaten and Tasered, unprovoked. The ensuing reports which fabricated charges contradict the video evidence and give rise to perjury and falsifying charges.

Yet, Mr. Kelly, men such as you and these officers invoke what you call, ‚“the law‚, and selectively assail and prosecute what is convenient. The State was determined in pursuing charges against me, all of which were dismissed. Where is the same level of commitment in prosecuting police who break the law?

Tell me, Mr. Kelly, why do you not review the evidence? Why do you not accept my complaints? Where is so-called justice? I think we both know.

Mr. Kelly, let me introduce ‚ you to some Appellate Court opinions that you may be familiar with, and if not, should acquaint yourself with.

Appellate Court of Illinois, Third District.

The People, ex rel. James M. Mahoney, State’s Attorney,

v.

Decatur, Springfield & St. Louis Railway Company, et al.

1905.

120 Ill.App. 229, 1905 WL 1987 (Ill.App. 3 Dist.)

This is an information or bill in chancery, in the name of the People of the State of Illinois, filed by James M. Mahoney, state’s attorney of Macoupin county, praying that appellees may be perpetually enjoined from entering upon any portion of West street in Carlinville, a city incorporated under the general incorporation law of Illinois, for the purpose of constructing a railroad, and from constructing such railroad in or upon said street. Upon a hearing upon the merits, the Circuit Court entered a decree dismissing the bill for want of equity, from which the complainant appeals.

Appellees were engaged in building an electric railroad from the city of Springfield to and through the city of Carlinville, and desired to obtain the right to lay down railroad tracks in and upon West street, in said city of Carlinville.

Pursuant to the statute enumerating the powers of city councils, which provides that a city council shall have no power to grant the use of, or the right to, lay down any railroad tracks, in any street of the city, to any railroad company, except upon the petition of the owners of the land representing more than one-half of the frontage of the street, or so much thereof as is sought to be used for railroad purposes (Rev. Stat. 1903), certain persons professing to own property having a frontage of 8,200.5 feet upon said West street (the total frontage upon said street being 13,364.84 feet) on July 30, 1903, filed with the city clerk of said city a petition asking the city council to adopt an ordinance granting such right to appellees. On August 17, 1903, a number of those who had signed such original petition, and who represented 1,716 feet of frontage, filed with the city clerk an instrument in writing, which was on the same day presented and read to a meeting of the city council, by which they sought to withdraw their signatures from the original petition, and protesting that by reason of such withdrawal there remained no petition signed by more than one-half of the frontage of said street as required by law and therefore the council had no legal power to pass an ordinance granting such privilege. On August 21, 1903, an ordinance was duly passed by the city council authorizing appellees to construct, maintain and operate an electric railway on said West street.

It is first contended by appellees that the bill was properly dismissed for the reason that it appears that the proceeding is not bona fide for the purpose of protecting a public right shown to be threatened, but was in fact instituted to protect private owners of abutting property from a threatened injury to their property for which there is a complete remedy at law.

*2 In support of such contention affidavits were presented and filed upon the hearing, to the effect that the bill of information is contained in a wrapper indorsed with the names of the attorneys who are assisting the state’s attorney in the case; that the interlineations therein and indorsements thereon are in the handwriting of one of such attorneys, and further that the state’s attorney had theretofore stated that the bill was filed in his name because the property owners had been advised by their attorneys that they could not obtain an injunction in any way and that they had for that reason gotten him to file the bill in his own name.

Affidavits filed by appellant show that the information was prepared and filed conjointly by the state’s attorney and counsel for certain property owners who were, at the request of the state’s attorney, assisting him in the suit, and that the state’s attorney was impelled to act in the matter through the solicitation and importunity of different property holders upon West street and elsewhere in the city. We are unable to perceive how the actions of the state’s attorney can be impugned because he was thus moved to act, or that there was any impropriety in his accepting the assistance of private counsel, who were acting also for certain property owners. Any citizen has a right to call upon the state’s attorney to redress a public wrong. The fact that private rights may also be involved and that through the acts of the state’s attorney in the interests of the public, private wrongs, as well, may directly or indirectly be redressed, is immaterial. There was no impropriety in the action of the state’s attorney in requesting and accepting the assistance of such other counsel. Moreover it appears from the affidavit of the assistant state’s attorney, made in the absence of his chief from the State, that the information was filed by the state’s attorney of his own motion as the representative of the public; that he has not received and does not expect to receive any compensation whatever for his acts or services in the matter. In the case of People v. G. E. Ry. Co., 172 Ill. 129, cited by counsel for appellees, the court dismissed a similar proceeding to this for the reason that it clearly appeared from the evidence that the people were not in fact parties, that, on the contrary, the suit was instituted and prosecuted by the attorney-general at the sole instigation of a rival corporation by which he was employed and paid for his services. Nothing of the kind appears in the case at bar, and we, therefore, hold the contention in question to be unfounded and without merit.

It is further contended by appellees in support of the decree that the parties who signed the original petition asking the city council to grant the privileges sought by appellees could not afterward, and before the adoption of an ordinance, withdraw their signatures from such petition, and revoke such authority as said signatures thereto had given the council.

*3 In the case of Theurer v. The People, 211 Ill. 296, the sufficiency of an application for a license to keep a dramshop was involved. By an ordinance of the village of Hyde Park, it was necessary that a majority of the property owners within a certain prescribed territory should sign the application for such a license before the same could be granted by the mayor of the city of Chicago, to which the village had been annexed. The application there under consideration was, among others, signed by one Alister, who represented a certain number of feet frontage. It was presented to the mayor on May 29th. On June 22nd, and while the matter was under consideration and the signatures to the application were being verified, the mayor consented that the dram-shop might be opened, subject however, to the revocation of such provisional consent, if evidence should meanwhile be produced, sufficient under the law, in the judgment of the mayor, to invalidate the application. On July 22nd, following, Alister withdrew his name from the application, the effect of which was to leave the application unsupported by the requisite amount of frontage. Whereupon the mayor refused to grant the license. It was insisted by counsel for the applicant seeking the license, that the act of signing the application was an irrevocable act. The court held that Alister had a right to withdraw his consent at any time before the mayor had finally acted. See also, Kinsloe v. Pogue, 213 Ill. 302.

We are of opinion that the reasoning adopted and the conclusions reached by the court in the Theurer case and the cases there cited, and the rule thereby established, are applicable to the case at bar and are decisive of the question under consideration. That upon the withdrawal by property owners representing 1,716 feet of frontage, of their signatures to the application, there remained no such petition as is required by statute. Consequently the city council were without legal power or authority thereafter to adopt the ordinance in question and such ordinance was void and without legal force or effect.

Appellees further contend that inasmuch as the legislature has committed to the city of Carlinville, and other like municipalities, its sovereignty in respect to streets, highways and public grounds within its limits, the city of Carlinville is invested with the authority of the State in this respect and is the proper, if not the only party to maintain a bill in equity to restrain obstructions of streets within its limits; that it may, or may not, in its discretion, question appellees’ right of occupancy of West street; and further that the city having decided not to act, abutting owners can recover at law and have no other remedy.

In answer to this contention it is sufficient to reiterate that this proceeding is not by abutting property owners, but is, brought by the representative of the public, in their interest and behalf. In Doane v. Lake St. El. R. Co., 165 Ill. 510, it is said where the use of a street has not been legally authorized, an information in chancery by the attorney-general or state’s attorney on behalf of the People or a bill for injunction by the city, affords a proper and complete remedy. There is nothing in the authorities cited by counsel inconsistent with the view that a bill may be filed by either the city, the attorney-general or the state’s attorney, or that the state’s attorney may act regardless of whether the city may or may not think proper to do so. In the case under consideration, the city council has acted without legal authority or power. The theory that unless such city council chooses to stultify itself by authorizing proceedings to attach and defeat the result of such illegal action on its part the public is without remedy in the premises, is without support of reason or authority and clearly untenable.

*4 It is finally insisted that the abutting and other property owners upon whose motion the state’s attorney acted, have been guilty of such laches in denying the filing of the bill for five months, while the railroad company was acquiring and grading its right of way, and in failing to urge the application for an injunction for six months further while the company was completing its tracks up West street; that no such drastic relief as asked should be now allowed, but that they should be remitted to their action at law. The proceeding being in behalf of, and in the interests of the People, the doctrine of laches is not applicable.

‚“The attorney-general and the state’s attorney may file an information on behalf of the People where the interests of the public are involved and lapse of time constitutes no bar to such proceeding. The doctrine of estoppel does not apply to a matter in the nature of a public right, and the State is not embraced within the Statute of Limitations unless specially named, and, by analogy, does not fall within the doctrine of estoppel.‚ The People v. Burns, 212 Ill. 227.

The decree of the Circuit Court will be reversed and the cause remanded with directions to proceed in conformity with the views herein expressed.

Reversed and remanded.

 

Mitchell WARE, Plaintiff-Appellant,

v.

C. Bernard CAREY, Ralph Berkowitz, Kenneth Gillis and Nicholas Iavarone, Defendants-Appellees.

75 Ill.App.3d 906, 394 N.E.2d 690, 31 Ill.Dec. 488

In 1973 plaintiff, Mitchell Ware, filed a complaint against C. Bernard Carey, Ralph Berkowitz, Kenneth Gillis and Nicholas Iavarone, charging defamation. After several amendments and the dismissal of various counts, plaintiff’s third amended complaint was reduced to three counts‚ (Counts I, III and X). Defendants filed their motion for summary judgment on all three counts and subsequently amended that motion. Plaintiff moved for summary judgment as to Counts I and III. On January 19, 1978, the circuit court of Cook County granted summary judgment for defendants on all counts. Plaintiff appeals that order. Because of the death of defendant Berkowitz, the action has abated as to him.

At the time of the alleged defamatory publications, plaintiff was the Deputy Superintendent of the Chicago Police Department. His responsibilities included supervision of the Intelligence Division, Internal Affairs Division, Inspections Division and Vice Control Division. Defendant, C. Bernard Carey, was the Cook County State’s Attorney. The remaining defendants were assistant State’s attorneys.

Count I alleges that Carey defamed plaintiff by virtue of a press release and public statement issued on September 11, 1973. It was further alleged that Carey knowingly made these false, defamatory statements. Count III alleges that Carey defamed Ware when he knowingly made false defamatory statements on a television interview show. Count X alleges that Carey and the other defendants caused the Cook County Grand Jury to issue a letter to Chicago Police Superintendent James Rochford that defamed plaintiff. Ware also alleged that defendants acted with knowledge of the falsity of the letter’s contents. The circuit court entered summary judgment for defendants on Counts I and III, finding as a matter of law that actual malice did not exist. Summary judgment for defendants on Count X was also granted because there was no genuine issue of material fact that defendants caused the drafting or publication of the letter.

Ware appeals on all counts, contending that factual issues remain necessitating remandment for trial on the merits. We affirm on all counts. Further development of the facts pertaining to each count follows in connection with the contentions of the parties.

Count I concerns Carey’s September 11, 1973, press release, which follows in its entirety:

‚“I have called this press conference to call public attention to what appears to me a deliberate attempt by Mayor Daley and his Police Superintendent Conlisk and Mitchell Ware to cover up police corruption and downgrade the efforts being made by this Office and U.S. Attorney James Thompson to expose and prosecute the many instances of extortion, shakedown, and corruption in the Police Department.

‚“Yesterday, a story appeared in one of the Chicago newspapers in which Mitchell Ware, Deputy Superintendent of Police in charge of inspectional services stated that now the cleanup of the Police Department in Chicago has been completed. According to Ware there can be no more corruption in the Police Department because if there was he would be aware of it.

‚“This follows the recent statement by Ware’s mentor, Mayor Daley, that there is no corruption in the Police Department. The public is corrupt, not the police.

‚“Shortly before the Mayor’s astounding pronouncement his Police Superintendent James Conlisk exploded to the press his confidence in the Police Department and in fact characterized prosecution of police extortionists as a smear on the top command of his Department. These public statements seem to me to be a deliberate signal to the police that official Chicago will continue to wink at corruption.

‚“I want to go on record that nothing is further from the truth. The era of police shakedown and extortion is ending. Such practices will no longer be tolerated.

‚“My office and the U.S. Attorney’s office will continue to investigate and prosecute any illegal acts to the limit of the law. It is the height of irony that the C-5 unit which Ware credits with the miracle of completing the cleanup of police corruption in Chicago should be headed by Mayor Daley’s protege, John J. Clarke, the man who is himself under indictment in the Federal Court on 8 counts of obstruction of justice and perjury. This is one more glaring example of Mayor Daley’s contempt for the intelligence of the people of Chicago and their concern for a Police Department worthy to meet the challenge of crime.

‚“Conlisk has publicly declared his confidence in Clarke despite the federal indictment. He can see nothing wrong in keeping a man in charge of this sensitive C-5 unit whose integrity has been challenged by the Federal Grand Jury. On the other hand, he cannot contain his indignation that at long last corruption within the Department is being brought to account before the courts.

‚“This City’s Police Department faces a crisis of confidence with the public. This is not a time for officials to show weakness or avert their eyes. I call upon these officials to retract these obnoxious statements and join with me to root out police corruption.

‚“Our office has charged or convicted 19 police officers this year, while the U.S. Attorney’s Office has 61 indictments or convictions of police officers.

‚“The vast majority of police are honest. They strive to be allowed to carry out their duty to protect the safety of the community. Without public respect and cooperation, their job can become ‚ difficult and bitter. To ignore and even condone police corruption puts an extra burden on the honest cop.

‚“Mitchell Ware was appointed to clean up the Police Department when the public was crying out against obvious dishonesty, but now that the heat has cooled down, Daley, Conlisk and Ware think they can go back to the old routine of automatic whitewash.

‚“U.S. Attorney Thompson and I are determined to rid the Police Department of the extortionists and shakedown artists of whatever rank. Chicago needs and is entitled to an honest Police Department.‚

Ware alleged that these statements were reported extensively by various Chicago newspapers, wire services and local radio and television stations. He contends that according to the plain meaning of the statement, Carey accused him of protecting and covering up police corruption.

After learning about this press release, Ware made a phone call to Carey. Ware alleged in his complaint that during this phone conversation ‚“(t)he defendant Carey acknowledged and admitted the falsity of the statements complained of .‚

Ware asserts that summary judgment on Count I was improper because the depositions on file established a material issue of fact as to whether Carey published his statements with actual malice (I. e., with knowledge of the falsity of his remarks or reckless disregard of whether they were false or not).‚ ‚  Troman v. Wood (1975), 62 Ill.2d 184, 189-190, 340 N.E.2d 292.

Carey offers four responses. First, by filing a cross-motion for summary judgment on Count I, Ware conceded that no triable fact issues remained and waiver or estoppel prohibits his arguing this issue on appeal. Second, his press release is capable of an innocent construction. Third, no triable issue as to actual malice exists. Fourth, as Cook County State’s Attorney, Carey is protected by an absolute privilege from defamation actions.

We find that Carey was protected by an absolute privilege from civil defamation and need not address the remaining issues.

II.

Carey maintains that the public statement which forms the basis for Count I is protected by the absolute executive privilege recognized in Blair v. Walker (1976), 64 Ill.2d 1, 349 N.E.2d 385. Alternatively, he claims the statement is non-actionable because of the doctrine of prosecutorial (quasi-judicial) immunity as defined in Imbler v. Pachtman (1976), 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128. We agree that Blair is controlling and need not discuss quasi-judicial immunity.

In Blair, plaintiffs were allegedly libeled by press releases made by Governor Walker. The Governor stated that plaintiffs used a corporate front and legal technicalities to obtain the home of a ‚“helpless woman‚ through a foreclosure sale. He accused plaintiffs of violating real estate broker licensing laws and characterized them as ‚“unscrupulous.‚ The Governor further stated that he had instructed the Department of Registration and Education to revoke plaintiffs’ real estate licenses.

The Supreme Court held that the Governor is protected from defamation actions by an absolute privilege when issuing statements legitimately related to matters committed to his responsibility. Plaintiffs contended that since the Governor had no express authority to license real estate brokers, he had acted beyond the scope of his duty. The court reasoned that the Governor did not violate the inherent, discretionary authority of his office by informing the public of actions he had directed be instituted against plaintiffs. The Governor’s duties include supervision of the Department of Registration and Education. Department officers are his subordinates. If the Governor’s statements had been communicated to Department officials, they clearly would have been absolutely privileged. The court also believed that the Governor did not exceed the bounds of his duty in communicating this message to his constituency.

Carey asks us to extend the Blair holding to afford him an absolute privilege in this case. Two issues concern us: (1) whether absolute executive immunity granted the Governor in Blair should be applied to the State’s Attorney, and (2) if so, whether Carey acted within the scope of that immunity.

We note initially that the State’s Attorney is an executive official as his office is part of the executive branch of government. ( People v. Vaughn (1977), 49 Ill.App.3d 37, 6 Ill.Dec. 932, 363 N.E.2d 879.) Blair’s grant of absolute executive immunity was held applicable to the chief executive officer of a municipality in Loniello v.‚ ‚  Fitzgerald (1976), 42 Ill.App.3d 900, 1 Ill.Dec. 560, 356 N.E.2d 842. Statements made by a mayor during a city council meeting were within the ambit of this privilege. The Loniello court deemed it logical that a mayor, like the Governor ‚“should be able to carry out his daily responsibilities free from concern that his actions will result in civil damage suits.‚ Blair, 64 Ill.2d 1, 7, 349 N.E.2d 385, 387; see, also, Larson v. Doner (1961), 32 Ill.App.2d 471, 178 N.E.2d 399 (absolute privilege afforded mayor and city commissioners).

We are of the opinion that the policy underlying the grant of absolute immunity in Blair, Loniello and Larson is equally applicable to the instant case. Judge Learned Hand summarized the policy considerations favoring absolute immunity for government officials in Gregoire v. Biddle (2d Cir. 1939), 177 F.2d 579, 581 (Cert. denied (1950), 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363):

‚“It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to satisfy a jury of his good faith.‚

[1][2] Carey is the chief law enforcement official for Cook County, Illinois. The State’s Attorney is a high ranking executive officer and an officer of the court charged with the administration of the law. ( People v. Dean (1923), 308 Ill. 74, 139 N.E. 37.) He has also been described as a ‚“ quasi-judicial‚ officer. ( People ex rel. Schreiner v. Courtney (1942), 380 Ill. 171, 43 N.E.2d 982.) We believe that his office and the social and public interests it furthers are comparable to the chief executive officials of municipalities. Accordingly, we hold that the State’s Attorney has an absolute executive privilege from liability for defamation arising from the performance of his duties.

[3][4] It remains to be considered whether Carey’s press release under the circumstances of this case concerns matters legitimately related to matters committed to his responsibility. (Blair.) Duties of the State’s Attorney are codified in Ill.Rev.Stat.1977, ch. 14, par. 5. Among others, they include the duties:

‚“(1) To commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county may be concerned.

‚“(6) To attend before judges and prosecute charges of felony or misdemeanor, for which the offender is required to be recognized to appear before the circuit court, when in his power so to do.

‚“(10) To perform such other and further duties as may, from time to time, be enjoined on him by law.‚

The Illinois judiciary has added the duty to keep informed as to violations of the criminal laws ( O’Hair v. People (1889), 32 Ill.App. 277) and to investigate facts and determine whether an offense has been committed ( People v. Pohl (1964), 47 Ill.App.2d 232, 197 N.E.2d 759). The State’s Attorney has the responsibility of evaluating evidence and other pertinent factors and determining what, if any, offense may be charged. ( People v. Rhodes (1967), 38 Ill.2d 389, 231 N.E.2d 400.) In short, he has wide discretion in enforcing the criminal laws. ( Marcisz v. Marcisz (1976), 65 Ill.2d 206, 2 Ill.Dec. 310, 357 N.E.2d 477.) We interpret these Particularly principles as charging the State’s Attorney with responsibilities in criminal matters prior to any formal charging that may take place.

Standards of the American Bar Association regarding prosecution are also helpful in delineating the scope of the State’s Attorney’s responsibilities.‚ ‚  (ABA Standards, The Prosecution Function (1971).) Sections 1.1(a), (b), and 2.7 provide:

‚“1.1 The function of the prosecutor.

(a) The office of prosecutor, as the chief law enforcement official of his jurisdiction, is an agency of the executive branch of government which is charged with the duty to see that the laws are faithfully executed and enforced in order to maintain the rule of law.

(b) The prosecutor is both an administrator of justice and an advocate; he must exercise sound discretion in the performance of his functions.

‚“2.7 Relations with the police.

(a) The prosecutor should provide legal advice to the police concerning police functions and duties in criminal matters.

(b) The prosecutor should cooperate with police in providing the services of his staff to aid in training police in the performance of their function in accordance with law.‚“ (Emphasis added.)

Particularly pertinent is section 3.1(a):

‚“A prosecutor, as the chief law enforcement official of his jurisdiction, ordinarily relies on police and other investigative agencies for investigation of alleged criminal acts, but he has an affirmative responsibility to investigate suspected illegal activity when it is not adequately dealt with by other agencies.‚

Of particular interest to this case are remarks in the Introduction to these ABA standards:

‚“(T)he prosecutor is the leader of law enforcement in the community. He is expected to participate actively in marshaling society’s resources against the threat of crime. When a crisis in the enforcement of criminal law arises in the community, * * * he may be drawn into the maelstrom of political controversy by the demand that he ‚stamp out the criminals.’ He is called upon to make public statements, to propose legislative reforms, or to direct the energies of the law enforcement machinery of the community.‚ ABA Standards Relating to the Administration of Criminal Justice, Compilation, p. 77 (1974). (Emphasis added.)

ABA Standards regarding police functions also are instructive (ABA Standards, The Urban Police Function, ss 1.1, 5.1, 9.3 (1973):

‚“1.1 Complexity of police task.

(a) Since police, as an agency of the criminal justice system, have a major responsibility for dealing with serious crime, efforts should continually be made to improve the capacity of police to discharge this responsibility effectively. It should also be recognized, however, that police effectiveness in dealing with crime is often largely dependent upon the effectiveness of other agencies both within and outside the criminal justice system. Those in the system must work together through liaison, cooperation, and constructive joint effort. This effort is vital to the effective operation of the police and the entire criminal justice system.

‚“5.1 Need for accountability.

Since a principal function of police is the safeguarding of democratic processes, if police fail to conform their conduct to the requirements of law, they subvert the democratic process and frustrate the achievement of a principal police function. It is for this reason that high priority must be given for ensuring that the police are made fully accountable to their police administrator and to the public for their actions.

‚“9.3 The news media.

Public understanding of the police function is heavily dependent upon the coverage given by mass media to the newsworthy events in which the police are involved. Newspaper, radio, and television**696 ***494 reporters assigned to reporting on police activities should have a sufficiently thorough understanding of the complexities of the police function to enable them to cover such events (as well as other matters that now go unreported) in a manner that promotes the public’s understanding of the police role.‚“

[5] With these principles in mind, we turn to the circumstances of the instant case.‚ ‚ Carey submitted an affidavit in support of his motion for summary judgment on Counts I and III.‚ ‚ This affidavit was not contested by motion or counter-affidavit, so its substance must be taken as true.‚ ‚  ( Heidelberger v. Jewel Companies, Inc. (1974), 57 Ill.2d 87, 92-93, 312 N.E.2d 601; Watson v. Southwest Messenger Press, Inc. (1973),12 Ill.App.3d 968, 299 N.E.2d 409.) Carey contends that his affidavit establishes an innocent construction for his press release. We do not reach this issue, but consider the affidavit solely to determine the scope of Carey’s responsibilities as Cook County State’s Attorney. In pertinent part, the affidavit reads:

‚“5. That statements which are the subject matter of Counts I and II of the Substitute Third Amended Complaint were made by me as State’s Attorney of Cook County in response to statements by the late Mayor of Chicago, Richard J. Daley, that the person that pays off a police official is responsible for police corruption and not the policeman that takes the money, and that tavern owners may lose their liquor licenses after they testify against the police officers charged with extorting the payoff; a statement by former Chicago Superintendent of Police James Conlisk publicly attacking the credibility of a police officer who testified in a police extortion trial that other police officers extorted or received payoffs from tavern owners; and the statement of plaintiff Mitchell Ware that all pockets of corruption have been removed from the Chicago Police Department.

‚“6. The aforementioned statements were made during the pendency of an extortion trial of a Chicago Police Commander and other Chicago policemen before an unsequestered jury.

‚“7. That my many years of experience as a law enforcement official and my reading of studies of official corruption led me to believe that corruption cannot be eradicated until there is an admission that it exists and that the aforementioned statements of Mayor Daley, Superintendent Conlisk and Deputy Superintendent Ware, taken together, implied that individuals who came forward to testify about police extortion and payoffs could be punished and that police officers could infer that other law enforcement officials would not be vigilant in attempting to eradicate corruption.

‚“8. That by my statements I intended to call a halt to the type of statements being made by Mayor Daley, Superintendent Conlisk and Deputy Superintendent Ware and request that we work together to eradicate corruption.

‚“9. That I believed that my statements, taken as a whole, were true and in the best public interest.‚

[6] We believe that Carey’s issuance of the press release remarks were legitimately related to his responsibilities as leader of community law enforcement and his concomitant duty to investigate police corruption. The ABA Standards charge the prosecutor with (1) the duty to insure faithful execution of the laws (s 1.1(a)); (2) providing legal advice and training concerning police functions (s 2.7); (3) an affirmative *917 responsibility to investigate suspected illegal activity when this is not adequately dealt with by the police (s 3.1(a)); and (4) maintaining liaison, cooperation and constructive joint effort with the police department to assure police effectiveness in dealing with the crime (s 1.1 of The Urban Police Function).

If that portion of the press release pertaining to Ware was communicated directly to him, rather than to the public, it undoubtedly would be absolutely privileged. Carey’s affidavit demonstrates his twofold concern over (1) the effect Ware’s statement may have had on a pending police extortion trial and Carey’s ability to prosecute future episodes of police misconduct, and (2) the need to recognize corruption exists as a prerequisite to its eradication. The communication of these concerns to Deputy Superintendent Ware was certainly consistent with the principles set forth by the ABA. It was also a proper exercise of Carey’s discretion as to the pretrial administration of criminal justice.

Following the Blair analysis, we must next decide whether Carey’s decision to inform the general public should be afforded absolute privilege. We are of the opinion that, like the Governor in Blair, Carey could, in the exercise of his discretion, communicate these remarks to the public. The ABA Standards portray the importance of public disclosure concerning the police function (ABA Standards, The Urban Police Function, s 9.3 (1973)) and the need for police accountability to the public (s 5.1). The State’s Attorney has the inherent power as the chief legal official in the county to maintain this accountability. As the Introduction to the Standards indicates ‚“(h)e is called upon to make public statements‚ and ‚“the prosecutor’s activity is in large part open to the public gaze and spotlighted by the press.‚ We cannot say Carey’s call for public accountability by Ware was outside the perimeters of the State’s Attorney’s discretion.

In Blair, the court noted that the Governor did not exceed the scope of his discretionary powers by informing the public about disciplinary actions he had directed be taken. Indeed, the effective functioning of our system of government is dependent largely upon the force of an informed public opinion as to the quality of service rendered by public officials, and free and unfettered action by the public’s representatives. ( Howlett v. Scott (1977), 69 Ill.2d 135, 144, 13 Ill.Dec. 9, 370 N.E.2d 1036.) Carey’s press release appeared to be an effort to harness the dual effectiveness of his office and public opinion to curb what he believed was an improper use of police powers by Ware. Carey’s remarks may be taken, therefore, as an official reprimand to Ware for actions that Carey believed were not in the best interest of criminal justice administration.

Ware argues, however, that the State’s Attorney’s office admitted that no prosecution or investigation of Ware was under process or even contemplated. Therefore, Carey exceeded his traditional responsibilities by accusing Ware of protecting corruption. This argument misses the point. Ware had made public statements that all pockets of corruption had been eradicated from the Chicago Police Department. Carey feared this sort of statement might have influenced an unsequestered jury in a pending federal trial. Investigation of whether Ware had made his statements with the intent of protecting corruption was not necessary since the effect of his statements might have influenced that jury. According to his affidavit, Carey acted based upon his experience in law enforcement, his studies of official corruption, and his belief that police corruption continued to exist in Chicago. At the point in time of Carey’s remarks to the press, Carey was only concerned with the veracity and effect of Ware’s statement and the appearance of impropriety by Ware. The fact that no formal investigation or charging of Ware based upon an intent to protect corruption took place does not militate against Carey’s responsibility to mitigate what he believed were damaging remarks by Ware. Accordingly, under the circumstances described above, Carey’s September 11, 1973, press release was absolutely privileged.

We need not decide if executive absolute immunity is applicable to Counts III and X, as they are affirmed for other reasons explained below.

III.

Count III of plaintiff’s complaint alleges that on September 23, 1973, Carey made the following defamatory statement during a public television appearance:

Question from Mary Jane O’Dell: ‚“Mr. Carey, I don’t understand why are you miffed with Mitchell Ware because he seems to have done something before you‚ did it . . . you say you are going to do this . . . you are planning to do this . . . but you haven’t actually done it yet. What has he done thats wrong?‚

Carey: ‚“No not at all. And if you will look back at what I have said regardless of how they have changed the tones of all this and all the silly counter charges that they have made . . . is that my only disagreement with Mitchell Ware is that I disagreed with two statements that he made. The first one indicating that all the police corruption had now been cleaned up and that he was aware of all the pockets of corruption . . . now this couldn’t be so because he hasn’t brought us all of these things that we know are still going on. Now we have worked on a cooperative basis with the C-5 Unit and they have done an excellent job in many areas . . . and I never questioned the job that they are doing. What I question are these types of public statements that are intended to delude the public into thinking that this is all over now or utilizes a signal to everyone that now you don’t have to cooperate anymore because the corruption is ended and we’re going to go back to good old times in Chicago. Those were my quarrels with Mitchell Ware . . . I also quarreled with his statement the other day that this gambling operation erradicated a three million industry when in fact the next day the operation is back in business.‚

Question from Mary Jane O’Dell: ‚“But isn’t it a fact your quarrel with him goes a little deeper than that, doesn’t it Mr. Carey, because you say that the statements he makes are not really true. Well granted that it hasn’t all been eradicated, but basically what you’re saying is that the Mayor and Superintendent Conlisk and Mr. Ware are all responsible are all responsible for protecting the syndicate. Thats what you’re really saying.‚

Carey: ‚“Oh yes, lets put that back in the proper perspective. Its a historical fact that the syndicate has operated for years in the city of Chicago and I dare anyone to try and dispute that fact and its also historical fact and its not only historical fact but its a matter of testimony in pending federal trials excluding the one thats going on now which we can’t discuss . . . but the federal trials that have gone on heretofore which indicated much corruption in high public officials including an ex-governor, including the present, at that time the present county clerk, and corruption within the police department, convictions have been had.‚

Specifically, Ware contends that Carey’s response to the second question is an allegation that Ware was responsible for protecting the syndicate. Carey asserts that summary judgment in his favor on Count III was proper based on three grounds. First, the complaint alleges only conclusions with regard to the alleged defamatory statement and does not allege actual malice. Second, the specific statement alleged was never pleaded until after the statute of limitations had expired. Third, the specific statement complained of is capable of an innocent construction which does not defame Ware.

[7] We agree with Carey’s third contention and need not address his other arguments.‚ ‚ The innocent construction rule requires that an article, passage or statement be read and construed as a whole and the words given their natural and obvious meaning.‚ ‚ Words that are allegedly libelous capable of being read innocently must be so read and declared nonactionable as a matter of law.‚ ‚ ‚ ‚  Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill.2d 345, 347, 243 N.E.2d 217; John v. Tribune Co. (1962), 24 Ill.2d 437, 181 N.E.2d 105, Cert. denied, 371 U.S. 877, 83 S.Ct. 148, 9 L.Ed.2d 114.

[8] We are of the opinion that placed in the full context of the conversation Carey’s response is capable of an innocent construction. Mary Jane O’Dell offered two questions for Carey’s consideration. First, he was asked: ‚“But isn’t it a fact your quarrel with him goes a little deeper than that, doesn’t it Mr. Carey, because you say that‚ the statements he makes are not really true.‚ Immediately following was the query: ‚“Well granted that it hasn’t all been eradicated, but basically what you’re saying is that the Mayor and Superintendent Conlisk and Mr. Ware are all responsible are all responsible for protecting the syndicate. Thats what you’re really saying.‚ Carey’s response, ‚“Oh yes, let’s put that back in the proper perspective‚ might refer to either question. It is possible that Carey was merely quarreling with Ware’s claim that police corruption did not exist, rather than accusing Ware of protecting corruption and the syndicate. Accordingly, we are required to hold Carey’s statement is nonactionable.

The plausibility of this innocent construction is evidenced by Carey’s response to O’Dell’s previous question which is quoted above. There, she also presented Carey with a twofold question: ‚“I don’t understand why are you miffed with Mitchell Ware‚ and ‚“What has he done thats wrong?‚ Carey’s answer, ‚“No not at all‚ more probably relates to the first question and indicates he was not ‚“miffed‚ at Ware. Consistency would require his answer to O’Dell’s next question also be interpreted as sequential.

IV.

Count X of plaintiff’s complaint deals with the publication of a letter, signed by the foreman of the extended May 1975 Grand Jury, to the Superintendent of the Chicago Police Department, James M. Rochford. The substance of the letter was that evidence presented during the grand jury investigation indicated that Deputy Superintendent Ware completely ignored his responsibility to supervise the activities of the Security Section of the Chicago Police Department. Ware was accused of gross neglect of his official duties which attributed to the excesses engaged in by members of the Security System. Ware alleged that the letter was written at the direction of the defendants Carey, Berkowitz, Iavarone and Gillis, and published in the news media by or with their approval.

The complaint further alleges that the scope of the investigation by the extended May 1975 Grand Jury concerned criminal acts committed by police officers from 1967 to 1970. Defendants were aware that Ware did not join the Chicago Police Department until 1972. Thus, each defendant was allegedly aware of the falsity of the letter’s contents.

Defendants’ motion for summary judgment was supported by the affidavits of Carey, Berkowitz, Gillis and Iavarone. Each affiant asserted that he did not cause or direct the grand jury foreman to write, sign or issue the controverted letter. Nor did affiants cause or direct their agents *921 or employees to take such action. Attached also to the motion for summary judgment were excerpts from the deposition of the grand jury foreman, Sylvester Maida. Pertinent portions of Maida’s deposition testimony explaining the composition and publication of the letter follow:

‚“Q (by Mr. Ware): Had you ever met with any of the Defendants and that would include Bernard Carey, Ralph Berkowitz, Kenneth Gillis, Nicholas Iavarone, or any of their employees before the convening of the Cook County Grand Jury?

‚“A: No.

‚“Q: Have you ever met and conversed with either of the Defendants in this cause outside the Grand Jury room?

‚“A: No.

‚“Q: When did you initially decide to write the letter?

‚“A: I guess I did write the letter but the jury did discuss some kind of letter to Rochford, and this is what they discussed and what they wanted to send.

‚“Q: Did you discuss the idea of writing the letter, the contents of this letter with anyone other than a Grand Juror outside the Grand Jury room before it was written?

‚“A: No.

‚“Q: Were you given any directions or suggestions or assistance in the composition of this letter by anyone in the State’s Attorney’s office outside the Grand Jury room?

‚“A: No, not that I can recall, no.

‚“Q: Did anyone in the State’s Attorney’s office suggest to you the writing of the 44 page report or the letter in this case outside the Grand Jury room?

‚“A: No.

‚“The Witness: I didn’t write the letter. There was some college people there that were a little in fact, towards the end of the last couple of weeks of this here, when they wrote up this recommendation, there were a couple of well, I presume they had college educations because they were rather smart, as far as I was concerned, and they kind of took over the recommendations. And there was one or two others that were kind of a little sharp on this and I kind of just sat in the background and just listened to what they were doing and went along and read it and agreed with them on what they had said and on what they decided, the recommendation of it.

‚“That’s why I said I never wrote any letters, or I don’t think I ever made my own recommendation in that 44 page report. That was all agreed by the jurors, so this is the truth and nothing but the truth.‚

During their depositions, defendants were questioned as to whether they wrote the letter to Rochford or assisted the foreman in its drafting. Defendants refused to answer on the grounds of grand jury secrecy. Therefore, defendants’ depositions are not inconsistent with their affidavits.

Plaintiff filed a response to defendants’ motion for summary judgment as to Count X. He contended that an issue of fact remained; that defendants’ affidavits were self-serving and failed to resolve the issue of responsibility for the letter; and that defendants failed to answer pertinent questions on discovery under the guise of grand jury secrecy. In support of his response, Ware attached excerpts from the deposition of Maida, excerpts from the depositions of defendants Iavarone and Gillis and his own affidavit.

Ware’s affidavit states that defendants were aware of when he began his services as a Chicago Police Department Superintendent. Affiant further stated that each defendant knew of the existence of a gag order issued by the circuit court of Cook County pertaining to the extended May 1975 Grand Jury. Iavarone and Gillis were working under the direction of Carey and Berkowitz and reported to them on grand jury activities.

Ware also stated that the letter ‚“was delivered at the direction of the defendant Iavarone, and with knowledge and complicity on the parts of both Iavarone and Gillis (with knowledge) that it contained * * * defamatory allegations concerning (Ware).‚ Affiant attempted to identify the individuals specifically responsible for the letter but defendants chose not to answer during discovery, alleging grand jury secrecy.

Excerpts from Maida’s deposition testimony selected by Ware establish that Maida did not personally write the letter to Superintendent Rochford. In fact, Maida had little or no recollection as to the drafting, editing, typing or mailing of the letter. However, Maida did admit the possibility that the grand jury was responsible for the letter. He maintained that his involvement, if any, consisted of reading the proposed letter and signing it.

Gillis’ deposition revealed that he was familiar with the grand jury letter and report. However, Gillis was instructed by counsel not to answer questions pertaining to the grand jury letter. Gillis, therefore, offered no information as to the preparation of the letter and report.

The deposition testimony of Iavarone established that he was familiar with the letter sent to Rochford, that he knew its contents and that he had it physically delivered. The witness professed to know who wrote the letter but was instructed by counsel not to answer the question: ‚“Did you‚ write the letter?‚ Iavarone stated that Carey knew about the letter but did not know its contents until this suit was filed. He did not personally show the letter to Carey or Berkowitz. Iavarone did show the letter to Gillis, but did not know if Gillis discussed it with Carey or Berkowitz. Iavarone also testified that his secretary had typed the letter.

We find that, based on the above-mentioned affidavits and deposition excerpts, no triable issue of fact existed as to whether defendants were responsible for the publication of the grand jury letter.

[9][10] Defendants’ affidavits are neither controverted by Ware’s affidavit nor by deposition testimony. An affidavit in support of a motion for summary judgment is actually a substitute for in-court testimony and should contain as much information as the affiant could competently testify to if he were sworn as a witness. ( Fooden v. Board of Governors of State Colleges and Universities (1971), 48 Ill.2d 580, 587, 272 N.E.2d 497, Cert. denied (1972), 408 U.S. 943, 92 S.Ct. 2847, 33 L.Ed.2d 766.) Here, defendants directly contradicted the allegations of Count X in their affidavits by denying any responsibility for the drafting or publication of the grand jury letter. Where such averments of fact are not contradicted by counteraffidavit, they must be taken as true, notwithstanding the existence of contrary averments in the adverse party’s pleadings which merely purport to establish issues of fact. (Fooden.) Ware’s counteraffidavit is wholly conclusory, speculative and merely serves to restate the allegations of his complaint with reference to defendants’ responsibility for the letter. Ware states no facts indicating his personal knowledge concerning these allegations. Moreover, Ware admitted in his deposition that he had no personal knowledge regarding what transpired before the grand jury. Only defendants and Maida would have personal knowledge as to responsibility for the letter. Defendants’ affidavits denying responsibility remain uncontroverted by Ware. Maida’s explanation that other jurors may have been responsible for the letter is consistent with defendants’ affidavits. Accordingly, summary judgment for defendants as to Count X was proper.

Ware also complains that defendants’ failure to discuss the letter during deposition testimony under the guise of grand jury secrecy creates an issue of fact. Ware asserts the fact of nondisclosure in his counteraffidavit and defendants’ depositions bear this out. During deposition questioning, on advice from counsel, defendants refused to answer certain questions pertaining to the authorship, composition and delivery of the grand jury letter. Defendants’ counsel made timely objections to these questions and Ware ‚“certified‚ these questions.

We are of the opinion that this issue should have been raised in the trial court. (See Hill v. Thomas B. Jeffery Co. (1920), 292 Ill. 490, 127 N.E. 124.) Supreme Court Rule 211 (Ill.Rev.Stat.1977, ch. 110A, par. 211(c)(4) ) provides:

‚“Any party may, but need not, on notice and motion obtain a ruling by the court on the objections In advance of the trial.‚ (Emphasis added.)

Moreover, Rule 219, concerning refusal to answer by a deponent, provides that the proponent of the question may move for an order compelling an answer. Additional discovery options available to Ware were the possibilities of a protective order regulating discovery to prevent an unreasonable disadvantage, or oppression by defendants (Rule 201(c)(1) ); court supervision of discovery (Rule 201(c)(2) ); or discovery sanctions where appropriate (Rule 219(c), (d) ).

If Ware had attempted to implement these discovery safeguards, the issue of grand jury secrecy as a purported ground for refusal to answer deposition questions could have been litigated below. Our record, however, is silent on this issue. Since defendants have denied involvement with the grand jury letter via affidavits, we will not construe their deposition silence as inconsistent with these denials.

Construing all of the materials before the trial court in the light most favorable to the non-moving party Century Display Manufacturing‚ ‚  Corp. v. D. R. Wager Construction Co., Inc.‚ ‚ (1977), 46 Ill.App.3d 643, 4 Ill.Dec. 913, 360 N.E.2d 1346), we find no triable issue of fact as to Count X.

For all of the aforementioned reasons, the order of the circuit court of Cook County granting defendants summary judgment on Counts I, III and X is affirmed.

Affirmed.

PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.

Terrence J. BARON, Defendant-Appellant.

130 Ill.App.2d 588, 264 N.E.2d 423

The defendant, Terrence J. Baron, was indicted for the illegal sale of hallucinogenic drugs, in violation of section 802(b) of Chapter 111 1/2 of Illinois Revised Statutes of 1969. The indictment charged that the defendant sold 220 LSD tablets on May 27, 1969, and the indictment bore number F69-41. This was a second offense and was therefore classified as a felony. The first offense against the defendant was charged in a complaint which was then pending before the same court. It bore case number M69-590, and was classified as a misdemeanor. See: Ill.Rev.Stat.1969, ch. 111 1/2, par. 804. A further and unrelated misdemeanor charge was pending against the defendant which bore number M69-591.

The defendant pled guilty to charges M69-590 and F69-41, and the State then filed a nolle prosequi to case number M69-591. The case numbered F69-41 was then set for hearing on an application for probation and for hearing in aggravation and mitigation. The court ordered the probation officer to make an investigation and report back within two weeks.

At this point in the proceeding, it was made known to the court that the guilty pleas in cases F69-41 and M69-590 had both been obtained upon a promise of probation. When it became apparent that the court was not going to be governed by the negotiated plea agreement, the defendant’s counsel immediately asked that the pleas of guilty be withdrawn in cases F69-41 and M69-590, and that the nolle prosequi, which had been entered in case M69-591, be withdrawn and the case reinstated, thus placing everything in the proceedings back at its initial status. The court denied the motion and granted probation for a period of three years, conditioned upon the first nine months thereof being served in the Illinois State Prison Farm at Vandalia.

[1] The defendant filed an extensive motion for new trial, which was denied, and he has appealed. He contends, among things, that the trial court erred in refusing‚ to permit him to withdraw his pleas of guilty. We believe that the defendant is correct in this contention.

The defendant obviously agreed to plead guilty upon the misapprehension that he would receive an unconditional probation on the felony charge of selling hallucinogenic drugs. The record permits no other conclusion. The court would not accede to such agreement, and conditioned the defendant’s probation upon the first nine months thereof being served in the Illinois State Prison Farm at Vandalia.

In The People v. Riebe, 40 Ill.2d 565 at page 568, 241 N.E.2d 313 at page 314 (1969), the court summarized the oft-repeated principles applicable to permitting the withdrawal of a plea of guilty, in these words:

‚The discretion of the trial court to permit the withdrawal of the plea of guilty is a judicial discretion which should always be exercised in favor of innocence and liberty. The law favors a trial upon the merits by jury, and all courts should so administer the law and construe the rules of practice as to secure a hearing upon the merits, if possible. The least surprise or influence causing a defendant to plead guilty when he has any defense at all should be sufficient cause to permit a change of the plea from guilty to not guilty. The withdrawal of the plea of guilty should not be denied in any case where it is evident that the ends of justice will be served by permitting the plea of not guilty in its stead.’

The Advisory Committee on the Criminal Trial of the American Bar Association Project on Minimum Standards for Criminal Justice with reference to Pleas of Guilty, recommends in Part II, Section 2.1, (a)(ii)(4), relating to the withdrawal of a guilty plea, that the court should allow a defendant to withdraw a guilty plea if the defendant proves that ‚he did not receive the charge or sentence concessions contemplated by the plea agreement and the prosecuting attorney failed to seek or not to oppose these concessions as promised in the plea agreement.’ See: The People v. Walston, 38 Ill.2d 39, 43, 44, 230 N.E.2d 233 (1967).

[2] We are compelled to the conclusion that the trial judge knew of the negotiations that preceded the plea of guilty in cases numbered F69-41 and M69-590. While that judge was not the judge who entered the subsequent orders, this circumstance does not alter our view that the ends of justice require that the defendant be permitted to withdraw his plea of guilty in cases numbered M69-590 and F69-41, and to substitute in lieu thereof, pleas of not guilty. We note that as to the other misdemeanor case numbered M69-591, a nolle prosequi was entered at the time the guilty pleas were entered. The record and appellant’s brief indicate*591 that this nolle prosequi was a part of the same plea agreement. Consequently, the defendant must agree to the reinstatement of that case, subject to his right to change his pleas, if he is to be permitted to alter his pleas in cases F69-41 and M69-590.

If such concession is not forthcoming, the judgment herein is to be affirmed; if such concession is made, then the judgment of the trial court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

[3][4][5] The trial judge who entered the judgment appealed from herein evidently became confused with reference to the number, charge, plea, and status of each of the three cases which were pending against the defendant. Under such circumstances, he entered an order that the felony case against the defendant, numbered F69-41 be designated a misdemeanor. Such order was beyond his power. It is the duty of the State’s Attorney in misdemeanor cases, and the State’s Attorney or Grand Jury in felony cases, to determine the charge which will be placed against a person.

Section 5 of Chapter 14 of Illinois Revised Statutes of 1969 provides that it is the duty of the State’s Attorney to commence and prosecute all criminal actions, suits and indictments. Article III of the Illinois Constitution divides the powers of the government among the legislative, executive and judicial departments, and provides that neither of these departments shall exercise powers belonging to either of the other departments.

The State’s Attorney’s office is a part of the executive branch of the government, and the powers exercised by that office are executive powers.‚ ‚ A judge or court cannot exercise the powers of the executive branch of our government.‚ ‚  People ex rel. Elliott v. Covelli, 415 Ill. 79, 88, 89, 112 N.E.2d 156 (1953). Thus, the court erred in designating the felony charge as a misdemeanor and in treating it as such. This order was void as a judicial encroachment upon the executive power of the State’s Attorney.

The other matters raised by the defendant need not be discussed in view of the position we have taken herein. Accordingly, the judgment is reversed and remanded, subject to the conditions enumerated in the opinion.

Reversed and remanded.

Supreme Court of the United States.

 

VOGEL, Ex’r, etc.,

v.

GRUAZ.

110 U.S. 311, 4 S.Ct. 12, 28 L.Ed. 158

This is an action on the case, brought by Timothy Gruaz, against Rudolph Bircher, to recover damages for the speaking and publishing of false, malicious, scandalous, and defamatory words, charging the plaintiff with being a thief, and with having stolen the money of the defendant, meaning the crime of larceny. The suit was commenced in a state court of Illinois, and was removed by the defendant into the circuit court of the United States for the Southern district of Illinois. At the trial before a jury a verdict was rendered for the plaintiff, June 6, 1879, for $6,000 damages. On the next day the defendant filed a motion for a new trial. On the fourteenth of June the defendant died, on the twelfth of July an order abating the case was moved for, on behalf of the defendant, and on the sixteenth of August the court overruled the motion for a new trial and the motion for an order of abatement, and entered a judgment for the plaintiff, against Bircher, for $6,000 and costs, as of June 7, 1879. The order for judgment recited that the hearing by the court of the motion for a new trial was, when it was filed, postponed to a then future and convenient day of the same term, and that the defendant died pending the hearing of the motion. Leave was given to the executor of the defendant to prepare a bill of exceptions and to take a writ of error. The bill of exceptions being signed, it was filed by the executor, and the writ of error was issued. Various errors are assigned, and among them that the circuit court did not grant the motion to abate the suit, and that it rendered a judgment against Bircher after his death. But it is unnecessary to pass on those questions, because we are of opinion that the judgment must be reversed for another error committed at the trial.

Three witnesses for the plaintiff gave evidence tending to prove the speaking to them by the defendant of more or less of the words set forth in the declaration; and afterwards C. L. Cook was sworn as a witness for the plaintiff, and testified that he was state’s attorney for Madison county, Illinois; he had a slight acquaintance with Bircher; and that he knew Gruaz. The following proceedings then occurred: ‚Question. I will ask you if you had any conversation with Dr. Bircher with regard to Gruaz, and, if so, when was it? Counsel for defense asked witness if at that time he was occupying the same position he now holds. Answer. Yes, sir. Q. It was communicated to you while you held that position and were acting in that capacity, whatever was communicated to you by Bircher? A. Yes, sir. (Defendant’s counsel object to witness testifying to matters disclosed to him by the defendant under the circumstances stated, on the ground that such communications are to be treated as privileged.) The Court. I will ask the witness if he regarded it professionally as a privileged communication? A. I had never met defendant before; he was introduced to me by a citizen of our place, and he informed me that he wanted to talk with me with regard to a matter he wanted to bring before the grand jury. (Objected to.) The Court. I will allow the witness to state what the doctor said on that occasion. Of course, if he made the communication to the witness in good faith, there would be no malice about it, and I shall instruct the jury to* disregard it. The objection is overruled. To which ruling of the court the defendant at the time excepted. A. As I stated, I had at that time no acquaintance with defendant whatever. He inquired for the state’s attorney, and was introduced to me, and he spoke of his affairs. He said he wanted to bring a matter before the grand jury in regard to Mr. Gruaz. I talked with him in regard to the nature of the matter, and he talked pretty freely in regard to it, and I directed him to the grand jury room. He said a good many things. He was evidently in earnest at the time, expressed himself very freely in regard to him. I would not like to swear to the exact words used, or that anybody used at the time. I can give the substance of what he said, I suppose. He wanted to prosecute Gruaz for stealing, was the amount of it. I recollect this: he charged him with having stolen his money, and I asked him how, and he told me how it had been done. Gruaz was his agent and handled his funds, rented his farms, and had failed to account for a large amount of money, he told me, and he charged him in this conversation with having stolen his money, and he said he wanted to know if there was any law in this state to prosecute a man for that. I have no objection to state any words. I remember his making the charge that he had stolen his money, but I can’t swear that the word ‚thief’ was used at that time; that it was in substance, undoubtedly. My impression is that this was the March term, 1878, of the circuit court of Madison county, either that or October term, 1877; my recollection and decided impression is that it was the spring term, 1878. Dr. Bircher went into the grand jury room and gave his statement to the grand jury. He was anxious, of course, to have the indictment found, and he evidently believed or so expressed himself. (Counsel for defendant objected to witness stating his opinion about what defendant evidently believed.) The Court. He said he went before the grand jury, and said he seemed to be in earnest in his movements, but he didn’t say what took place before the grand jury. Don’t know, I suppose. Witness. No, I don’t know. Cross-examination. Maj. Prickett introduced Bircher to me; never saw him before in my life. I was certain he came to see me as prosecuting attorney, in good faith. That was his business, as he stated it to me. After he made his statement to me I advised him to go before the grand jury; directed him to their room. He went there by my advice. Hold on-I don’t say that; I advised him that he had a good case. He came to me and I showed him where the grand jury room was. He stated his case to me as state’s attorney. I then directed him where to go, and said I should prosecute it as vigorously as possible, if the indictment was found. In regard to the advice I gave him, I rather encouraged him to drop the thing; I told him he better sue Mr. Gruaz first, and see if he couldn’t get judgment against him, and so put it in a better shape to prosecute him. He stated his case, and I thought from his statement that he would have few, if any, witnesses besides himself, and that it would be doubtful, however honestly he might believe, that he had cause; it would be doubtful whether the jury would bring a bill; so I advised him to bring a civil suit; but, said I, you are here, and you mustn’t think hardly of me if the grand jury don’t find a bill; and I directed him to the grand jury room.’

The bill of exceptions also contains the following: ‚In reference to the testimony of state’s attorney C. L. Cook, the court instructed the jury as folfows: ‚I admitted that evidence with an explanation, and with the explanation made in the admission of it I think I am content, and I think the jury may take it into consideration; but if they think the defendant was actuated by honest motives in making the declaration he did, they will disregard it.’ To the giving of which last instruction the defendant excepted, for the reason that the instruction ignores the element of want of probable cause, and for the reason also that the jury should have been instructed to disregard Cook’s testimony entirely.’

We are of opinion that what was said by Bircher to Mr. Cook was an absolutely privileged communication. It was said to Mr. Cook while he was state’s attorney or prosecutor of crimes for the county, and while he was acting in that capacity. Bircher inquired for the state’s attorney and was introduced to him, and stated to him that he wanted to talk with him about a matter he wanted to bring before the grand jury in regard to Gruaz. He laid the matter before Mr. Cook, and charged Gruaz with having stolen his money, and was asked how, and stated how and inquired of Mr. Cook if there was any law in Illinois by which a man could be prosecuted for that.‚  The grand jury was then in session, and Mr. Cook advised Bircher that he had a good case and directed him to the grand jury-room, and Bircher went before the grand jury. If all this had taken place between Bircher and an attorney consulted by him who did not hold the public position which Mr. Cook did, clearly, the communication would have been privileged and not to be disclosed against the objection of Bircher.‚ ‚ Under the circumstances shown, Mr. Cook was the professional adviser of Bircher, consulted by him on a statement of his case, to learn his opinion as to whether there was ground in fact and in law for making an attempt to procure an indictment against Gruaz.‚ ‚ The fact that Mr. Cook held the position of public prosecutor, and was not to be paid by Bircher for information or advice, did not destroy the relation which the law established between them.‚ ‚ It made that relation more sacred on the ground of public policy.‚  The avenue to the grand jury should always be free and unobstructed.‚ ‚ Bircher might have gone directly before it without consulting with Mr. Cook, but if he chose to consult him instead of a private counsel, there was great propriety in his doing so.‚ ‚ Any person who desires to pursue the same course should not be deterred by the fear of having what he may say in the confidence of a consultation with a professional adviser, supposed to be the best qualified for the purpose, disclosed afterwards in a civil suit against his objection.‚ ‚  Oliver v. Pate, 43 Ind. 132. By the statute of Illinois in force at the time of this occurrence, it was made the duty of each state’s attorney to ‚commence and prosecute’ all criminal actions, suits, indictments, and prosecutions in any court of record in his county, in which the people of the state or county might be concerned. (Rev. St. 1874, c. 14, ‚§ 5, subd. 1.) Under this provision it was the province and the privilege of any person who knew of facts tending to show the commission of a crime, to lay those facts before the public officer whose duty it was to commence a prosecution for the crime. Public policy will protect all such communications absolutely, and without reference to the motive or intent of the informer or the question of probable cause; the ground being that greater mischief will probably result from requiring or permitting them to be disclosed than from wholly rejecting them. Mr. Cook learned from Bircher the things to which he testified, because he occupied the position of public prosecuting officer, and because he was acting at the time as the legal adviser of Bircher in respect to the matter and question which Bircher was laying before him. The free and unembarrassed administration of justice in respect to the criminal law in which the public is concerned, is involved in a case like the present, in addition to the considerations which ordinarily apply in communications from client to counsel in matters of purely private concern. Bircher made his communication to Mr. Cook for the purpose of obtaining professional advice as to his right, and that of the public through him, to have a criminal prosecution commenced by Mr. Cook by the intervention of the grand jury against Gruaz.

But there is another view of the subject. The matter concerned the administration of penal justice, and the principle of public safety justifies and demands the rule of exclusion. In Worthington v. Scribner, 109 Mass. 487, an action for maliciously and falsely representing to the treasury department of the United States that the plaintiff was intending to defraud the revenue, it was held that the defendant could not be compelled to answer whether he did not give to the department information of supposed or alleged frauds on the revenue contemplated by the plaintiff. The principle laid down in that case was, that it is the duty of every citizen to communicate to his government any information which he has of the commission of an offense against its laws; and that a court of justice will not compel or allow such information to be disclosed, either by the subordinate officer to whom it is given, by the informer himself, or by any other person, without the permission of the government, the evidence being excluded not for the protection of the witness or of the party in the particular case, but upon general grounds of public policy, because of the confidential nature of such communications. The authorities are collected and reviewed in that case. The case of Dawkins v. Rokeby, L. R. 8 Q. B. 255, there cited, was affirmed by the house of lords, L. R. 7 H. L. 744. See, also, 1 Greenl. Ev. ⤠250; Black v. Holmes, 1 Fox & Sm. 28.

It makes no difference that there was evidence of the speaking of the same words to persons other than Mr. Cook, and that the speaking of them to Mr. Cook was not the sole ground of action or of recovery. The evidence was incompetent, and it must be inferred that it affected the minds of the jury both on the main issue and on the question of damages.

It results from these views that the judgment below cannot be upheld, and that it must be reversed, and the case be remanded to the circuit court, with direction to set aside the verdict and vacate the judgment and take such further proceedings as may be according to law and not inconsistent with this opinion.

An open letter to Brendan Kelly, State’s Attorney

An open letter to Brendan Kelly, State’s Attorney

Mr. Kelly, you know of me. We have met face-to-face and communicated over phone calls and email. I have published our dealings on my website, www.markmccoy.com. You likewise know that I have been making claims of criminal acts committed by Fairview Heights Policemen, Joshua Alemond and Aaron Nyman. We met when you were acting as Circuit Clerk, and at that time you became aware of my allegations of criminal acts committed by these officers.

Mr. Kelly, I also know that your office is in possession of video evidence of the alleged criminal acts. You possess falsified and perjured reports from these officers, as well as video from the dashboard cameras from their patrol cars. The video shows one of the officers approaching me while on my knees at gunpoint, fully compliant and passive, and then being laid on the ground then beaten and Tasered, unprovoked. The ensuing reports which fabricated charges contradict the video evidence and give rise to perjury and falsifying charges.

Yet, Mr. Kelly, men such as you and these officers invoke what you call, “the law”, and selectively assail and prosecute what is convenient. The State was determined in pursuing charges against me, all of which were dismissed. Where is the same level of commitment in prosecuting police who break the law?

Tell me, Mr. Kelly, why do you not review the evidence? Why do you not accept my complaints? Where is so-called justice? I think we both know.

Mr. Kelly, let me introduce  you to some Appellate Court opinions that you may be familiar with, and if not, should acquaint yourself with.

Appellate Court of Illinois, Third District.

The People, ex rel. James M. Mahoney, State’s Attorney,

v.

Decatur, Springfield & St. Louis Railway Company, et al.

1905.

120 Ill.App. 229, 1905 WL 1987 (Ill.App. 3 Dist.)

This is an information or bill in chancery, in the name of the People of the State of Illinois, filed by James M. Mahoney, state’s attorney of Macoupin county, praying that appellees may be perpetually enjoined from entering upon any portion of West street in Carlinville, a city incorporated under the general incorporation law of Illinois, for the purpose of constructing a railroad, and from constructing such railroad in or upon said street. Upon a hearing upon the merits, the Circuit Court entered a decree dismissing the bill for want of equity, from which the complainant appeals.

Appellees were engaged in building an electric railroad from the city of Springfield to and through the city of Carlinville, and desired to obtain the right to lay down railroad tracks in and upon West street, in said city of Carlinville.

Pursuant to the statute enumerating the powers of city councils, which provides that a city council shall have no power to grant the use of, or the right to, lay down any railroad tracks, in any street of the city, to any railroad company, except upon the petition of the owners of the land representing more than one-half of the frontage of the street, or so much thereof as is sought to be used for railroad purposes (Rev. Stat. 1903), certain persons professing to own property having a frontage of 8,200.5 feet upon said West street (the total frontage upon said street being 13,364.84 feet) on July 30, 1903, filed with the city clerk of said city a petition asking the city council to adopt an ordinance granting such right to appellees. On August 17, 1903, a number of those who had signed such original petition, and who represented 1,716 feet of frontage, filed with the city clerk an instrument in writing, which was on the same day presented and read to a meeting of the city council, by which they sought to withdraw their signatures from the original petition, and protesting that by reason of such withdrawal there remained no petition signed by more than one-half of the frontage of said street as required by law and therefore the council had no legal power to pass an ordinance granting such privilege. On August 21, 1903, an ordinance was duly passed by the city council authorizing appellees to construct, maintain and operate an electric railway on said West street.

It is first contended by appellees that the bill was properly dismissed for the reason that it appears that the proceeding is not bona fide for the purpose of protecting a public right shown to be threatened, but was in fact instituted to protect private owners of abutting property from a threatened injury to their property for which there is a complete remedy at law.

*2 In support of such contention affidavits were presented and filed upon the hearing, to the effect that the bill of information is contained in a wrapper indorsed with the names of the attorneys who are assisting the state’s attorney in the case; that the interlineations therein and indorsements thereon are in the handwriting of one of such attorneys, and further that the state’s attorney had theretofore stated that the bill was filed in his name because the property owners had been advised by their attorneys that they could not obtain an injunction in any way and that they had for that reason gotten him to file the bill in his own name.

Affidavits filed by appellant show that the information was prepared and filed conjointly by the state’s attorney and counsel for certain property owners who were, at the request of the state’s attorney, assisting him in the suit, and that the state’s attorney was impelled to act in the matter through the solicitation and importunity of different property holders upon West street and elsewhere in the city. We are unable to perceive how the actions of the state’s attorney can be impugned because he was thus moved to act, or that there was any impropriety in his accepting the assistance of private counsel, who were acting also for certain property owners. Any citizen has a right to call upon the state’s attorney to redress a public wrong. The fact that private rights may also be involved and that through the acts of the state’s attorney in the interests of the public, private wrongs, as well, may directly or indirectly be redressed, is immaterial. There was no impropriety in the action of the state’s attorney in requesting and accepting the assistance of such other counsel. Moreover it appears from the affidavit of the assistant state’s attorney, made in the absence of his chief from the State, that the information was filed by the state’s attorney of his own motion as the representative of the public; that he has not received and does not expect to receive any compensation whatever for his acts or services in the matter. In the case of People v. G. E. Ry. Co., 172 Ill. 129, cited by counsel for appellees, the court dismissed a similar proceeding to this for the reason that it clearly appeared from the evidence that the people were not in fact parties, that, on the contrary, the suit was instituted and prosecuted by the attorney-general at the sole instigation of a rival corporation by which he was employed and paid for his services. Nothing of the kind appears in the case at bar, and we, therefore, hold the contention in question to be unfounded and without merit.

It is further contended by appellees in support of the decree that the parties who signed the original petition asking the city council to grant the privileges sought by appellees could not afterward, and before the adoption of an ordinance, withdraw their signatures from such petition, and revoke such authority as said signatures thereto had given the council.

*3 In the case of Theurer v. The People, 211 Ill. 296, the sufficiency of an application for a license to keep a dramshop was involved. By an ordinance of the village of Hyde Park, it was necessary that a majority of the property owners within a certain prescribed territory should sign the application for such a license before the same could be granted by the mayor of the city of Chicago, to which the village had been annexed. The application there under consideration was, among others, signed by one Alister, who represented a certain number of feet frontage. It was presented to the mayor on May 29th. On June 22nd, and while the matter was under consideration and the signatures to the application were being verified, the mayor consented that the dram-shop might be opened, subject however, to the revocation of such provisional consent, if evidence should meanwhile be produced, sufficient under the law, in the judgment of the mayor, to invalidate the application. On July 22nd, following, Alister withdrew his name from the application, the effect of which was to leave the application unsupported by the requisite amount of frontage. Whereupon the mayor refused to grant the license. It was insisted by counsel for the applicant seeking the license, that the act of signing the application was an irrevocable act. The court held that Alister had a right to withdraw his consent at any time before the mayor had finally acted. See also, Kinsloe v. Pogue, 213 Ill. 302.

We are of opinion that the reasoning adopted and the conclusions reached by the court in the Theurer case and the cases there cited, and the rule thereby established, are applicable to the case at bar and are decisive of the question under consideration. That upon the withdrawal by property owners representing 1,716 feet of frontage, of their signatures to the application, there remained no such petition as is required by statute. Consequently the city council were without legal power or authority thereafter to adopt the ordinance in question and such ordinance was void and without legal force or effect.

Appellees further contend that inasmuch as the legislature has committed to the city of Carlinville, and other like municipalities, its sovereignty in respect to streets, highways and public grounds within its limits, the city of Carlinville is invested with the authority of the State in this respect and is the proper, if not the only party to maintain a bill in equity to restrain obstructions of streets within its limits; that it may, or may not, in its discretion, question appellees’ right of occupancy of West street; and further that the city having decided not to act, abutting owners can recover at law and have no other remedy.

In answer to this contention it is sufficient to reiterate that this proceeding is not by abutting property owners, but is, brought by the representative of the public, in their interest and behalf. In Doane v. Lake St. El. R. Co., 165 Ill. 510, it is said where the use of a street has not been legally authorized, an information in chancery by the attorney-general or state’s attorney on behalf of the People or a bill for injunction by the city, affords a proper and complete remedy. There is nothing in the authorities cited by counsel inconsistent with the view that a bill may be filed by either the city, the attorney-general or the state’s attorney, or that the state’s attorney may act regardless of whether the city may or may not think proper to do so. In the case under consideration, the city council has acted without legal authority or power. The theory that unless such city council chooses to stultify itself by authorizing proceedings to attach and defeat the result of such illegal action on its part the public is without remedy in the premises, is without support of reason or authority and clearly untenable.

*4 It is finally insisted that the abutting and other property owners upon whose motion the state’s attorney acted, have been guilty of such laches in denying the filing of the bill for five months, while the railroad company was acquiring and grading its right of way, and in failing to urge the application for an injunction for six months further while the company was completing its tracks up West street; that no such drastic relief as asked should be now allowed, but that they should be remitted to their action at law. The proceeding being in behalf of, and in the interests of the People, the doctrine of laches is not applicable.

“The attorney-general and the state’s attorney may file an information on behalf of the People where the interests of the public are involved and lapse of time constitutes no bar to such proceeding. The doctrine of estoppel does not apply to a matter in the nature of a public right, and the State is not embraced within the Statute of Limitations unless specially named, and, by analogy, does not fall within the doctrine of estoppel.” The People v. Burns, 212 Ill. 227.

The decree of the Circuit Court will be reversed and the cause remanded with directions to proceed in conformity with the views herein expressed.

Reversed and remanded.

 

Mitchell WARE, Plaintiff-Appellant,

v.

C. Bernard CAREY, Ralph Berkowitz, Kenneth Gillis and Nicholas Iavarone, Defendants-Appellees.

75 Ill.App.3d 906, 394 N.E.2d 690, 31 Ill.Dec. 488

In 1973 plaintiff, Mitchell Ware, filed a complaint against C. Bernard Carey, Ralph Berkowitz, Kenneth Gillis and Nicholas Iavarone, charging defamation. After several amendments and the dismissal of various counts, plaintiff’s third amended complaint was reduced to three counts (Counts I, III and X). Defendants filed their motion for summary judgment on all three counts and subsequently amended that motion. Plaintiff moved for summary judgment as to Counts I and III. On January 19, 1978, the circuit court of Cook County granted summary judgment for defendants on all counts. Plaintiff appeals that order. Because of the death of defendant Berkowitz, the action has abated as to him.

At the time of the alleged defamatory publications, plaintiff was the Deputy Superintendent of the Chicago Police Department. His responsibilities included supervision of the Intelligence Division, Internal Affairs Division, Inspections Division and Vice Control Division. Defendant, C. Bernard Carey, was the Cook County State’s Attorney. The remaining defendants were assistant State’s attorneys.

Count I alleges that Carey defamed plaintiff by virtue of a press release and public statement issued on September 11, 1973. It was further alleged that Carey knowingly made these false, defamatory statements. Count III alleges that Carey defamed Ware when he knowingly made false defamatory statements on a television interview show. Count X alleges that Carey and the other defendants caused the Cook County Grand Jury to issue a letter to Chicago Police Superintendent James Rochford that defamed plaintiff. Ware also alleged that defendants acted with knowledge of the falsity of the letter’s contents. The circuit court entered summary judgment for defendants on Counts I and III, finding as a matter of law that actual malice did not exist. Summary judgment for defendants on Count X was also granted because there was no genuine issue of material fact that defendants caused the drafting or publication of the letter.

Ware appeals on all counts, contending that factual issues remain necessitating remandment for trial on the merits. We affirm on all counts. Further development of the facts pertaining to each count follows in connection with the contentions of the parties.

Count I concerns Carey’s September 11, 1973, press release, which follows in its entirety:

“I have called this press conference to call public attention to what appears to me a deliberate attempt by Mayor Daley and his Police Superintendent Conlisk and Mitchell Ware to cover up police corruption and downgrade the efforts being made by this Office and U.S. Attorney James Thompson to expose and prosecute the many instances of extortion, shakedown, and corruption in the Police Department.

“Yesterday, a story appeared in one of the Chicago newspapers in which Mitchell Ware, Deputy Superintendent of Police in charge of inspectional services stated that now the cleanup of the Police Department in Chicago has been completed. According to Ware there can be no more corruption in the Police Department because if there was he would be aware of it.

“This follows the recent statement by Ware’s mentor, Mayor Daley, that there is no corruption in the Police Department. The public is corrupt, not the police.

“Shortly before the Mayor’s astounding pronouncement his Police Superintendent James Conlisk exploded to the press his confidence in the Police Department and in fact characterized prosecution of police extortionists as a smear on the top command of his Department. These public statements seem to me to be a deliberate signal to the police that official Chicago will continue to wink at corruption.

“I want to go on record that nothing is further from the truth. The era of police shakedown and extortion is ending. Such practices will no longer be tolerated.

“My office and the U.S. Attorney’s office will continue to investigate and prosecute any illegal acts to the limit of the law. It is the height of irony that the C-5 unit which Ware credits with the miracle of completing the cleanup of police corruption in Chicago should be headed by Mayor Daley’s protege, John J. Clarke, the man who is himself under indictment in the Federal Court on 8 counts of obstruction of justice and perjury. This is one more glaring example of Mayor Daley’s contempt for the intelligence of the people of Chicago and their concern for a Police Department worthy to meet the challenge of crime.

“Conlisk has publicly declared his confidence in Clarke despite the federal indictment. He can see nothing wrong in keeping a man in charge of this sensitive C-5 unit whose integrity has been challenged by the Federal Grand Jury. On the other hand, he cannot contain his indignation that at long last corruption within the Department is being brought to account before the courts.

“This City’s Police Department faces a crisis of confidence with the public. This is not a time for officials to show weakness or avert their eyes. I call upon these officials to retract these obnoxious statements and join with me to root out police corruption.

“Our office has charged or convicted 19 police officers this year, while the U.S. Attorney’s Office has 61 indictments or convictions of police officers.

“The vast majority of police are honest. They strive to be allowed to carry out their duty to protect the safety of the community. Without public respect and cooperation, their job can become  difficult and bitter. To ignore and even condone police corruption puts an extra burden on the honest cop.

“Mitchell Ware was appointed to clean up the Police Department when the public was crying out against obvious dishonesty, but now that the heat has cooled down, Daley, Conlisk and Ware think they can go back to the old routine of automatic whitewash.

“U.S. Attorney Thompson and I are determined to rid the Police Department of the extortionists and shakedown artists of whatever rank. Chicago needs and is entitled to an honest Police Department.”

Ware alleged that these statements were reported extensively by various Chicago newspapers, wire services and local radio and television stations. He contends that according to the plain meaning of the statement, Carey accused him of protecting and covering up police corruption.

After learning about this press release, Ware made a phone call to Carey. Ware alleged in his complaint that during this phone conversation “(t)he defendant Carey acknowledged and admitted the falsity of the statements complained of .”

Ware asserts that summary judgment on Count I was improper because the depositions on file established a material issue of fact as to whether Carey published his statements with actual malice (I. e., with knowledge of the falsity of his remarks or reckless disregard of whether they were false or not).   Troman v. Wood (1975), 62 Ill.2d 184, 189-190, 340 N.E.2d 292.

Carey offers four responses. First, by filing a cross-motion for summary judgment on Count I, Ware conceded that no triable fact issues remained and waiver or estoppel prohibits his arguing this issue on appeal. Second, his press release is capable of an innocent construction. Third, no triable issue as to actual malice exists. Fourth, as Cook County State’s Attorney, Carey is protected by an absolute privilege from defamation actions.

We find that Carey was protected by an absolute privilege from civil defamation and need not address the remaining issues.

II.

Carey maintains that the public statement which forms the basis for Count I is protected by the absolute executive privilege recognized in Blair v. Walker (1976), 64 Ill.2d 1, 349 N.E.2d 385. Alternatively, he claims the statement is non-actionable because of the doctrine of prosecutorial (quasi-judicial) immunity as defined in Imbler v. Pachtman (1976), 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128. We agree that Blair is controlling and need not discuss quasi-judicial immunity.

In Blair, plaintiffs were allegedly libeled by press releases made by Governor Walker. The Governor stated that plaintiffs used a corporate front and legal technicalities to obtain the home of a “helpless woman” through a foreclosure sale. He accused plaintiffs of violating real estate broker licensing laws and characterized them as “unscrupulous.” The Governor further stated that he had instructed the Department of Registration and Education to revoke plaintiffs’ real estate licenses.

The Supreme Court held that the Governor is protected from defamation actions by an absolute privilege when issuing statements legitimately related to matters committed to his responsibility. Plaintiffs contended that since the Governor had no express authority to license real estate brokers, he had acted beyond the scope of his duty. The court reasoned that the Governor did not violate the inherent, discretionary authority of his office by informing the public of actions he had directed be instituted against plaintiffs. The Governor’s duties include supervision of the Department of Registration and Education. Department officers are his subordinates. If the Governor’s statements had been communicated to Department officials, they clearly would have been absolutely privileged. The court also believed that the Governor did not exceed the bounds of his duty in communicating this message to his constituency.

Carey asks us to extend the Blair holding to afford him an absolute privilege in this case. Two issues concern us: (1) whether absolute executive immunity granted the Governor in Blair should be applied to the State’s Attorney, and (2) if so, whether Carey acted within the scope of that immunity.

We note initially that the State’s Attorney is an executive official as his office is part of the executive branch of government. ( People v. Vaughn (1977), 49 Ill.App.3d 37, 6 Ill.Dec. 932, 363 N.E.2d 879.) Blair’s grant of absolute executive immunity was held applicable to the chief executive officer of a municipality in Loniello v.   Fitzgerald (1976), 42 Ill.App.3d 900, 1 Ill.Dec. 560, 356 N.E.2d 842. Statements made by a mayor during a city council meeting were within the ambit of this privilege. The Loniello court deemed it logical that a mayor, like the Governor “should be able to carry out his daily responsibilities free from concern that his actions will result in civil damage suits.” Blair, 64 Ill.2d 1, 7, 349 N.E.2d 385, 387; see, also, Larson v. Doner (1961), 32 Ill.App.2d 471, 178 N.E.2d 399 (absolute privilege afforded mayor and city commissioners).

We are of the opinion that the policy underlying the grant of absolute immunity in Blair, Loniello and Larson is equally applicable to the instant case. Judge Learned Hand summarized the policy considerations favoring absolute immunity for government officials in Gregoire v. Biddle (2d Cir. 1939), 177 F.2d 579, 581 (Cert. denied (1950), 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363):

“It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to satisfy a jury of his good faith.”

[1][2] Carey is the chief law enforcement official for Cook County, Illinois. The State’s Attorney is a high ranking executive officer and an officer of the court charged with the administration of the law. ( People v. Dean (1923), 308 Ill. 74, 139 N.E. 37.) He has also been described as a “ quasi-judicial” officer. ( People ex rel. Schreiner v. Courtney (1942), 380 Ill. 171, 43 N.E.2d 982.) We believe that his office and the social and public interests it furthers are comparable to the chief executive officials of municipalities. Accordingly, we hold that the State’s Attorney has an absolute executive privilege from liability for defamation arising from the performance of his duties.

[3][4] It remains to be considered whether Carey’s press release under the circumstances of this case concerns matters legitimately related to matters committed to his responsibility. (Blair.) Duties of the State’s Attorney are codified in Ill.Rev.Stat.1977, ch. 14, par. 5. Among others, they include the duties:

“(1) To commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county may be concerned.

“(6) To attend before judges and prosecute charges of felony or misdemeanor, for which the offender is required to be recognized to appear before the circuit court, when in his power so to do.

“(10) To perform such other and further duties as may, from time to time, be enjoined on him by law.”

The Illinois judiciary has added the duty to keep informed as to violations of the criminal laws ( O’Hair v. People (1889), 32 Ill.App. 277) and to investigate facts and determine whether an offense has been committed ( People v. Pohl (1964), 47 Ill.App.2d 232, 197 N.E.2d 759). The State’s Attorney has the responsibility of evaluating evidence and other pertinent factors and determining what, if any, offense may be charged. ( People v. Rhodes (1967), 38 Ill.2d 389, 231 N.E.2d 400.) In short, he has wide discretion in enforcing the criminal laws. ( Marcisz v. Marcisz (1976), 65 Ill.2d 206, 2 Ill.Dec. 310, 357 N.E.2d 477.) We interpret these Particularly principles as charging the State’s Attorney with responsibilities in criminal matters prior to any formal charging that may take place.

Standards of the American Bar Association regarding prosecution are also helpful in delineating the scope of the State’s Attorney’s responsibilities.   (ABA Standards, The Prosecution Function (1971).) Sections 1.1(a), (b), and 2.7 provide:

“1.1 The function of the prosecutor.

(a) The office of prosecutor, as the chief law enforcement official of his jurisdiction, is an agency of the executive branch of government which is charged with the duty to see that the laws are faithfully executed and enforced in order to maintain the rule of law.

(b) The prosecutor is both an administrator of justice and an advocate; he must exercise sound discretion in the performance of his functions.

“2.7 Relations with the police.

(a) The prosecutor should provide legal advice to the police concerning police functions and duties in criminal matters.

(b) The prosecutor should cooperate with police in providing the services of his staff to aid in training police in the performance of their function in accordance with law.“ (Emphasis added.)

Particularly pertinent is section 3.1(a):

“A prosecutor, as the chief law enforcement official of his jurisdiction, ordinarily relies on police and other investigative agencies for investigation of alleged criminal acts, but he has an affirmative responsibility to investigate suspected illegal activity when it is not adequately dealt with by other agencies.”

Of particular interest to this case are remarks in the Introduction to these ABA standards:

“(T)he prosecutor is the leader of law enforcement in the community. He is expected to participate actively in marshaling society’s resources against the threat of crime. When a crisis in the enforcement of criminal law arises in the community, * * * he may be drawn into the maelstrom of political controversy by the demand that he ‘stamp out the criminals.’ He is called upon to make public statements, to propose legislative reforms, or to direct the energies of the law enforcement machinery of the community.” ABA Standards Relating to the Administration of Criminal Justice, Compilation, p. 77 (1974). (Emphasis added.)

ABA Standards regarding police functions also are instructive (ABA Standards, The Urban Police Function, ss 1.1, 5.1, 9.3 (1973):

“1.1 Complexity of police task.

(a) Since police, as an agency of the criminal justice system, have a major responsibility for dealing with serious crime, efforts should continually be made to improve the capacity of police to discharge this responsibility effectively. It should also be recognized, however, that police effectiveness in dealing with crime is often largely dependent upon the effectiveness of other agencies both within and outside the criminal justice system. Those in the system must work together through liaison, cooperation, and constructive joint effort. This effort is vital to the effective operation of the police and the entire criminal justice system.

“5.1 Need for accountability.

Since a principal function of police is the safeguarding of democratic processes, if police fail to conform their conduct to the requirements of law, they subvert the democratic process and frustrate the achievement of a principal police function. It is for this reason that high priority must be given for ensuring that the police are made fully accountable to their police administrator and to the public for their actions.

“9.3 The news media.

Public understanding of the police function is heavily dependent upon the coverage given by mass media to the newsworthy events in which the police are involved. Newspaper, radio, and television**696 ***494 reporters assigned to reporting on police activities should have a sufficiently thorough understanding of the complexities of the police function to enable them to cover such events (as well as other matters that now go unreported) in a manner that promotes the public’s understanding of the police role.“

[5] With these principles in mind, we turn to the circumstances of the instant case.  Carey submitted an affidavit in support of his motion for summary judgment on Counts I and III.  This affidavit was not contested by motion or counter-affidavit, so its substance must be taken as true.   ( Heidelberger v. Jewel Companies, Inc. (1974), 57 Ill.2d 87, 92-93, 312 N.E.2d 601; Watson v. Southwest Messenger Press, Inc. (1973),12 Ill.App.3d 968, 299 N.E.2d 409.) Carey contends that his affidavit establishes an innocent construction for his press release. We do not reach this issue, but consider the affidavit solely to determine the scope of Carey’s responsibilities as Cook County State’s Attorney. In pertinent part, the affidavit reads:

“5. That statements which are the subject matter of Counts I and II of the Substitute Third Amended Complaint were made by me as State’s Attorney of Cook County in response to statements by the late Mayor of Chicago, Richard J. Daley, that the person that pays off a police official is responsible for police corruption and not the policeman that takes the money, and that tavern owners may lose their liquor licenses after they testify against the police officers charged with extorting the payoff; a statement by former Chicago Superintendent of Police James Conlisk publicly attacking the credibility of a police officer who testified in a police extortion trial that other police officers extorted or received payoffs from tavern owners; and the statement of plaintiff Mitchell Ware that all pockets of corruption have been removed from the Chicago Police Department.

“6. The aforementioned statements were made during the pendency of an extortion trial of a Chicago Police Commander and other Chicago policemen before an unsequestered jury.

“7. That my many years of experience as a law enforcement official and my reading of studies of official corruption led me to believe that corruption cannot be eradicated until there is an admission that it exists and that the aforementioned statements of Mayor Daley, Superintendent Conlisk and Deputy Superintendent Ware, taken together, implied that individuals who came forward to testify about police extortion and payoffs could be punished and that police officers could infer that other law enforcement officials would not be vigilant in attempting to eradicate corruption.

“8. That by my statements I intended to call a halt to the type of statements being made by Mayor Daley, Superintendent Conlisk and Deputy Superintendent Ware and request that we work together to eradicate corruption.

“9. That I believed that my statements, taken as a whole, were true and in the best public interest.”

[6] We believe that Carey’s issuance of the press release remarks were legitimately related to his responsibilities as leader of community law enforcement and his concomitant duty to investigate police corruption. The ABA Standards charge the prosecutor with (1) the duty to insure faithful execution of the laws (s 1.1(a)); (2) providing legal advice and training concerning police functions (s 2.7); (3) an affirmative *917 responsibility to investigate suspected illegal activity when this is not adequately dealt with by the police (s 3.1(a)); and (4) maintaining liaison, cooperation and constructive joint effort with the police department to assure police effectiveness in dealing with the crime (s 1.1 of The Urban Police Function).

If that portion of the press release pertaining to Ware was communicated directly to him, rather than to the public, it undoubtedly would be absolutely privileged. Carey’s affidavit demonstrates his twofold concern over (1) the effect Ware’s statement may have had on a pending police extortion trial and Carey’s ability to prosecute future episodes of police misconduct, and (2) the need to recognize corruption exists as a prerequisite to its eradication. The communication of these concerns to Deputy Superintendent Ware was certainly consistent with the principles set forth by the ABA. It was also a proper exercise of Carey’s discretion as to the pretrial administration of criminal justice.

Following the Blair analysis, we must next decide whether Carey’s decision to inform the general public should be afforded absolute privilege. We are of the opinion that, like the Governor in Blair, Carey could, in the exercise of his discretion, communicate these remarks to the public. The ABA Standards portray the importance of public disclosure concerning the police function (ABA Standards, The Urban Police Function, s 9.3 (1973)) and the need for police accountability to the public (s 5.1). The State’s Attorney has the inherent power as the chief legal official in the county to maintain this accountability. As the Introduction to the Standards indicates “(h)e is called upon to make public statements” and “the prosecutor’s activity is in large part open to the public gaze and spotlighted by the press.” We cannot say Carey’s call for public accountability by Ware was outside the perimeters of the State’s Attorney’s discretion.

In Blair, the court noted that the Governor did not exceed the scope of his discretionary powers by informing the public about disciplinary actions he had directed be taken. Indeed, the effective functioning of our system of government is dependent largely upon the force of an informed public opinion as to the quality of service rendered by public officials, and free and unfettered action by the public’s representatives. ( Howlett v. Scott (1977), 69 Ill.2d 135, 144, 13 Ill.Dec. 9, 370 N.E.2d 1036.) Carey’s press release appeared to be an effort to harness the dual effectiveness of his office and public opinion to curb what he believed was an improper use of police powers by Ware. Carey’s remarks may be taken, therefore, as an official reprimand to Ware for actions that Carey believed were not in the best interest of criminal justice administration.

Ware argues, however, that the State’s Attorney’s office admitted that no prosecution or investigation of Ware was under process or even contemplated. Therefore, Carey exceeded his traditional responsibilities by accusing Ware of protecting corruption. This argument misses the point. Ware had made public statements that all pockets of corruption had been eradicated from the Chicago Police Department. Carey feared this sort of statement might have influenced an unsequestered jury in a pending federal trial. Investigation of whether Ware had made his statements with the intent of protecting corruption was not necessary since the effect of his statements might have influenced that jury. According to his affidavit, Carey acted based upon his experience in law enforcement, his studies of official corruption, and his belief that police corruption continued to exist in Chicago. At the point in time of Carey’s remarks to the press, Carey was only concerned with the veracity and effect of Ware’s statement and the appearance of impropriety by Ware. The fact that no formal investigation or charging of Ware based upon an intent to protect corruption took place does not militate against Carey’s responsibility to mitigate what he believed were damaging remarks by Ware. Accordingly, under the circumstances described above, Carey’s September 11, 1973, press release was absolutely privileged.

We need not decide if executive absolute immunity is applicable to Counts III and X, as they are affirmed for other reasons explained below.

III.

Count III of plaintiff’s complaint alleges that on September 23, 1973, Carey made the following defamatory statement during a public television appearance:

Question from Mary Jane O’Dell: “Mr. Carey, I don’t understand why are you miffed with Mitchell Ware because he seems to have done something before you did it . . . you say you are going to do this . . . you are planning to do this . . . but you haven’t actually done it yet. What has he done thats wrong?”

Carey: “No not at all. And if you will look back at what I have said regardless of how they have changed the tones of all this and all the silly counter charges that they have made . . . is that my only disagreement with Mitchell Ware is that I disagreed with two statements that he made. The first one indicating that all the police corruption had now been cleaned up and that he was aware of all the pockets of corruption . . . now this couldn’t be so because he hasn’t brought us all of these things that we know are still going on. Now we have worked on a cooperative basis with the C-5 Unit and they have done an excellent job in many areas . . . and I never questioned the job that they are doing. What I question are these types of public statements that are intended to delude the public into thinking that this is all over now or utilizes a signal to everyone that now you don’t have to cooperate anymore because the corruption is ended and we’re going to go back to good old times in Chicago. Those were my quarrels with Mitchell Ware . . . I also quarreled with his statement the other day that this gambling operation erradicated a three million industry when in fact the next day the operation is back in business.”

Question from Mary Jane O’Dell: “But isn’t it a fact your quarrel with him goes a little deeper than that, doesn’t it Mr. Carey, because you say that the statements he makes are not really true. Well granted that it hasn’t all been eradicated, but basically what you’re saying is that the Mayor and Superintendent Conlisk and Mr. Ware are all responsible are all responsible for protecting the syndicate. Thats what you’re really saying.”

Carey: “Oh yes, lets put that back in the proper perspective. Its a historical fact that the syndicate has operated for years in the city of Chicago and I dare anyone to try and dispute that fact and its also historical fact and its not only historical fact but its a matter of testimony in pending federal trials excluding the one thats going on now which we can’t discuss . . . but the federal trials that have gone on heretofore which indicated much corruption in high public officials including an ex-governor, including the present, at that time the present county clerk, and corruption within the police department, convictions have been had.”

Specifically, Ware contends that Carey’s response to the second question is an allegation that Ware was responsible for protecting the syndicate. Carey asserts that summary judgment in his favor on Count III was proper based on three grounds. First, the complaint alleges only conclusions with regard to the alleged defamatory statement and does not allege actual malice. Second, the specific statement alleged was never pleaded until after the statute of limitations had expired. Third, the specific statement complained of is capable of an innocent construction which does not defame Ware.

[7] We agree with Carey’s third contention and need not address his other arguments.  The innocent construction rule requires that an article, passage or statement be read and construed as a whole and the words given their natural and obvious meaning.  Words that are allegedly libelous capable of being read innocently must be so read and declared nonactionable as a matter of law.     Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill.2d 345, 347, 243 N.E.2d 217; John v. Tribune Co. (1962), 24 Ill.2d 437, 181 N.E.2d 105, Cert. denied, 371 U.S. 877, 83 S.Ct. 148, 9 L.Ed.2d 114.

[8] We are of the opinion that placed in the full context of the conversation Carey’s response is capable of an innocent construction. Mary Jane O’Dell offered two questions for Carey’s consideration. First, he was asked: “But isn’t it a fact your quarrel with him goes a little deeper than that, doesn’t it Mr. Carey, because you say that the statements he makes are not really true.” Immediately following was the query: “Well granted that it hasn’t all been eradicated, but basically what you’re saying is that the Mayor and Superintendent Conlisk and Mr. Ware are all responsible are all responsible for protecting the syndicate. Thats what you’re really saying.” Carey’s response, “Oh yes, let’s put that back in the proper perspective” might refer to either question. It is possible that Carey was merely quarreling with Ware’s claim that police corruption did not exist, rather than accusing Ware of protecting corruption and the syndicate. Accordingly, we are required to hold Carey’s statement is nonactionable.

The plausibility of this innocent construction is evidenced by Carey’s response to O’Dell’s previous question which is quoted above. There, she also presented Carey with a twofold question: “I don’t understand why are you miffed with Mitchell Ware” and “What has he done thats wrong?” Carey’s answer, “No not at all” more probably relates to the first question and indicates he was not “miffed” at Ware. Consistency would require his answer to O’Dell’s next question also be interpreted as sequential.

IV.

Count X of plaintiff’s complaint deals with the publication of a letter, signed by the foreman of the extended May 1975 Grand Jury, to the Superintendent of the Chicago Police Department, James M. Rochford. The substance of the letter was that evidence presented during the grand jury investigation indicated that Deputy Superintendent Ware completely ignored his responsibility to supervise the activities of the Security Section of the Chicago Police Department. Ware was accused of gross neglect of his official duties which attributed to the excesses engaged in by members of the Security System. Ware alleged that the letter was written at the direction of the defendants Carey, Berkowitz, Iavarone and Gillis, and published in the news media by or with their approval.

The complaint further alleges that the scope of the investigation by the extended May 1975 Grand Jury concerned criminal acts committed by police officers from 1967 to 1970. Defendants were aware that Ware did not join the Chicago Police Department until 1972. Thus, each defendant was allegedly aware of the falsity of the letter’s contents.

Defendants’ motion for summary judgment was supported by the affidavits of Carey, Berkowitz, Gillis and Iavarone. Each affiant asserted that he did not cause or direct the grand jury foreman to write, sign or issue the controverted letter. Nor did affiants cause or direct their agents *921 or employees to take such action. Attached also to the motion for summary judgment were excerpts from the deposition of the grand jury foreman, Sylvester Maida. Pertinent portions of Maida’s deposition testimony explaining the composition and publication of the letter follow:

“Q (by Mr. Ware): Had you ever met with any of the Defendants and that would include Bernard Carey, Ralph Berkowitz, Kenneth Gillis, Nicholas Iavarone, or any of their employees before the convening of the Cook County Grand Jury?

“A: No.

“Q: Have you ever met and conversed with either of the Defendants in this cause outside the Grand Jury room?

“A: No.

“Q: When did you initially decide to write the letter?

“A: I guess I did write the letter but the jury did discuss some kind of letter to Rochford, and this is what they discussed and what they wanted to send.

“Q: Did you discuss the idea of writing the letter, the contents of this letter with anyone other than a Grand Juror outside the Grand Jury room before it was written?

“A: No.

“Q: Were you given any directions or suggestions or assistance in the composition of this letter by anyone in the State’s Attorney’s office outside the Grand Jury room?

“A: No, not that I can recall, no.

“Q: Did anyone in the State’s Attorney’s office suggest to you the writing of the 44 page report or the letter in this case outside the Grand Jury room?

“A: No.

“The Witness: I didn’t write the letter. There was some college people there that were a little in fact, towards the end of the last couple of weeks of this here, when they wrote up this recommendation, there were a couple of well, I presume they had college educations because they were rather smart, as far as I was concerned, and they kind of took over the recommendations. And there was one or two others that were kind of a little sharp on this and I kind of just sat in the background and just listened to what they were doing and went along and read it and agreed with them on what they had said and on what they decided, the recommendation of it.

“That’s why I said I never wrote any letters, or I don’t think I ever made my own recommendation in that 44 page report. That was all agreed by the jurors, so this is the truth and nothing but the truth.”

During their depositions, defendants were questioned as to whether they wrote the letter to Rochford or assisted the foreman in its drafting. Defendants refused to answer on the grounds of grand jury secrecy. Therefore, defendants’ depositions are not inconsistent with their affidavits.

Plaintiff filed a response to defendants’ motion for summary judgment as to Count X. He contended that an issue of fact remained; that defendants’ affidavits were self-serving and failed to resolve the issue of responsibility for the letter; and that defendants failed to answer pertinent questions on discovery under the guise of grand jury secrecy. In support of his response, Ware attached excerpts from the deposition of Maida, excerpts from the depositions of defendants Iavarone and Gillis and his own affidavit.

Ware’s affidavit states that defendants were aware of when he began his services as a Chicago Police Department Superintendent. Affiant further stated that each defendant knew of the existence of a gag order issued by the circuit court of Cook County pertaining to the extended May 1975 Grand Jury. Iavarone and Gillis were working under the direction of Carey and Berkowitz and reported to them on grand jury activities.

Ware also stated that the letter “was delivered at the direction of the defendant Iavarone, and with knowledge and complicity on the parts of both Iavarone and Gillis (with knowledge) that it contained * * * defamatory allegations concerning (Ware).” Affiant attempted to identify the individuals specifically responsible for the letter but defendants chose not to answer during discovery, alleging grand jury secrecy.

Excerpts from Maida’s deposition testimony selected by Ware establish that Maida did not personally write the letter to Superintendent Rochford. In fact, Maida had little or no recollection as to the drafting, editing, typing or mailing of the letter. However, Maida did admit the possibility that the grand jury was responsible for the letter. He maintained that his involvement, if any, consisted of reading the proposed letter and signing it.

Gillis’ deposition revealed that he was familiar with the grand jury letter and report. However, Gillis was instructed by counsel not to answer questions pertaining to the grand jury letter. Gillis, therefore, offered no information as to the preparation of the letter and report.

The deposition testimony of Iavarone established that he was familiar with the letter sent to Rochford, that he knew its contents and that he had it physically delivered. The witness professed to know who wrote the letter but was instructed by counsel not to answer the question: “Did you write the letter?” Iavarone stated that Carey knew about the letter but did not know its contents until this suit was filed. He did not personally show the letter to Carey or Berkowitz. Iavarone did show the letter to Gillis, but did not know if Gillis discussed it with Carey or Berkowitz. Iavarone also testified that his secretary had typed the letter.

We find that, based on the above-mentioned affidavits and deposition excerpts, no triable issue of fact existed as to whether defendants were responsible for the publication of the grand jury letter.

[9][10] Defendants’ affidavits are neither controverted by Ware’s affidavit nor by deposition testimony. An affidavit in support of a motion for summary judgment is actually a substitute for in-court testimony and should contain as much information as the affiant could competently testify to if he were sworn as a witness. ( Fooden v. Board of Governors of State Colleges and Universities (1971), 48 Ill.2d 580, 587, 272 N.E.2d 497, Cert. denied (1972), 408 U.S. 943, 92 S.Ct. 2847, 33 L.Ed.2d 766.) Here, defendants directly contradicted the allegations of Count X in their affidavits by denying any responsibility for the drafting or publication of the grand jury letter. Where such averments of fact are not contradicted by counteraffidavit, they must be taken as true, notwithstanding the existence of contrary averments in the adverse party’s pleadings which merely purport to establish issues of fact. (Fooden.) Ware’s counteraffidavit is wholly conclusory, speculative and merely serves to restate the allegations of his complaint with reference to defendants’ responsibility for the letter. Ware states no facts indicating his personal knowledge concerning these allegations. Moreover, Ware admitted in his deposition that he had no personal knowledge regarding what transpired before the grand jury. Only defendants and Maida would have personal knowledge as to responsibility for the letter. Defendants’ affidavits denying responsibility remain uncontroverted by Ware. Maida’s explanation that other jurors may have been responsible for the letter is consistent with defendants’ affidavits. Accordingly, summary judgment for defendants as to Count X was proper.

Ware also complains that defendants’ failure to discuss the letter during deposition testimony under the guise of grand jury secrecy creates an issue of fact. Ware asserts the fact of nondisclosure in his counteraffidavit and defendants’ depositions bear this out. During deposition questioning, on advice from counsel, defendants refused to answer certain questions pertaining to the authorship, composition and delivery of the grand jury letter. Defendants’ counsel made timely objections to these questions and Ware “certified” these questions.

We are of the opinion that this issue should have been raised in the trial court. (See Hill v. Thomas B. Jeffery Co. (1920), 292 Ill. 490, 127 N.E. 124.) Supreme Court Rule 211 (Ill.Rev.Stat.1977, ch. 110A, par. 211(c)(4) ) provides:

“Any party may, but need not, on notice and motion obtain a ruling by the court on the objections In advance of the trial.” (Emphasis added.)

Moreover, Rule 219, concerning refusal to answer by a deponent, provides that the proponent of the question may move for an order compelling an answer. Additional discovery options available to Ware were the possibilities of a protective order regulating discovery to prevent an unreasonable disadvantage, or oppression by defendants (Rule 201(c)(1) ); court supervision of discovery (Rule 201(c)(2) ); or discovery sanctions where appropriate (Rule 219(c), (d) ).

If Ware had attempted to implement these discovery safeguards, the issue of grand jury secrecy as a purported ground for refusal to answer deposition questions could have been litigated below. Our record, however, is silent on this issue. Since defendants have denied involvement with the grand jury letter via affidavits, we will not construe their deposition silence as inconsistent with these denials.

Construing all of the materials before the trial court in the light most favorable to the non-moving party Century Display Manufacturing   Corp. v. D. R. Wager Construction Co., Inc.  (1977), 46 Ill.App.3d 643, 4 Ill.Dec. 913, 360 N.E.2d 1346), we find no triable issue of fact as to Count X.

For all of the aforementioned reasons, the order of the circuit court of Cook County granting defendants summary judgment on Counts I, III and X is affirmed.

Affirmed.

PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.

Terrence J. BARON, Defendant-Appellant.

130 Ill.App.2d 588, 264 N.E.2d 423

The defendant, Terrence J. Baron, was indicted for the illegal sale of hallucinogenic drugs, in violation of section 802(b) of Chapter 111 1/2 of Illinois Revised Statutes of 1969. The indictment charged that the defendant sold 220 LSD tablets on May 27, 1969, and the indictment bore number F69-41. This was a second offense and was therefore classified as a felony. The first offense against the defendant was charged in a complaint which was then pending before the same court. It bore case number M69-590, and was classified as a misdemeanor. See: Ill.Rev.Stat.1969, ch. 111 1/2, par. 804. A further and unrelated misdemeanor charge was pending against the defendant which bore number M69-591.

The defendant pled guilty to charges M69-590 and F69-41, and the State then filed a nolle prosequi to case number M69-591. The case numbered F69-41 was then set for hearing on an application for probation and for hearing in aggravation and mitigation. The court ordered the probation officer to make an investigation and report back within two weeks.

At this point in the proceeding, it was made known to the court that the guilty pleas in cases F69-41 and M69-590 had both been obtained upon a promise of probation. When it became apparent that the court was not going to be governed by the negotiated plea agreement, the defendant’s counsel immediately asked that the pleas of guilty be withdrawn in cases F69-41 and M69-590, and that the nolle prosequi, which had been entered in case M69-591, be withdrawn and the case reinstated, thus placing everything in the proceedings back at its initial status. The court denied the motion and granted probation for a period of three years, conditioned upon the first nine months thereof being served in the Illinois State Prison Farm at Vandalia.

[1] The defendant filed an extensive motion for new trial, which was denied, and he has appealed. He contends, among things, that the trial court erred in refusing to permit him to withdraw his pleas of guilty. We believe that the defendant is correct in this contention.

The defendant obviously agreed to plead guilty upon the misapprehension that he would receive an unconditional probation on the felony charge of selling hallucinogenic drugs. The record permits no other conclusion. The court would not accede to such agreement, and conditioned the defendant’s probation upon the first nine months thereof being served in the Illinois State Prison Farm at Vandalia.

In The People v. Riebe, 40 Ill.2d 565 at page 568, 241 N.E.2d 313 at page 314 (1969), the court summarized the oft-repeated principles applicable to permitting the withdrawal of a plea of guilty, in these words:

‘The discretion of the trial court to permit the withdrawal of the plea of guilty is a judicial discretion which should always be exercised in favor of innocence and liberty. The law favors a trial upon the merits by jury, and all courts should so administer the law and construe the rules of practice as to secure a hearing upon the merits, if possible. The least surprise or influence causing a defendant to plead guilty when he has any defense at all should be sufficient cause to permit a change of the plea from guilty to not guilty. The withdrawal of the plea of guilty should not be denied in any case where it is evident that the ends of justice will be served by permitting the plea of not guilty in its stead.’

The Advisory Committee on the Criminal Trial of the American Bar Association Project on Minimum Standards for Criminal Justice with reference to Pleas of Guilty, recommends in Part II, Section 2.1, (a)(ii)(4), relating to the withdrawal of a guilty plea, that the court should allow a defendant to withdraw a guilty plea if the defendant proves that ‘he did not receive the charge or sentence concessions contemplated by the plea agreement and the prosecuting attorney failed to seek or not to oppose these concessions as promised in the plea agreement.’ See: The People v. Walston, 38 Ill.2d 39, 43, 44, 230 N.E.2d 233 (1967).

[2] We are compelled to the conclusion that the trial judge knew of the negotiations that preceded the plea of guilty in cases numbered F69-41 and M69-590. While that judge was not the judge who entered the subsequent orders, this circumstance does not alter our view that the ends of justice require that the defendant be permitted to withdraw his plea of guilty in cases numbered M69-590 and F69-41, and to substitute in lieu thereof, pleas of not guilty. We note that as to the other misdemeanor case numbered M69-591, a nolle prosequi was entered at the time the guilty pleas were entered. The record and appellant’s brief indicate*591 that this nolle prosequi was a part of the same plea agreement. Consequently, the defendant must agree to the reinstatement of that case, subject to his right to change his pleas, if he is to be permitted to alter his pleas in cases F69-41 and M69-590.

If such concession is not forthcoming, the judgment herein is to be affirmed; if such concession is made, then the judgment of the trial court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

[3][4][5] The trial judge who entered the judgment appealed from herein evidently became confused with reference to the number, charge, plea, and status of each of the three cases which were pending against the defendant. Under such circumstances, he entered an order that the felony case against the defendant, numbered F69-41 be designated a misdemeanor. Such order was beyond his power. It is the duty of the State’s Attorney in misdemeanor cases, and the State’s Attorney or Grand Jury in felony cases, to determine the charge which will be placed against a person.

Section 5 of Chapter 14 of Illinois Revised Statutes of 1969 provides that it is the duty of the State’s Attorney to commence and prosecute all criminal actions, suits and indictments. Article III of the Illinois Constitution divides the powers of the government among the legislative, executive and judicial departments, and provides that neither of these departments shall exercise powers belonging to either of the other departments.

The State’s Attorney’s office is a part of the executive branch of the government, and the powers exercised by that office are executive powers.  A judge or court cannot exercise the powers of the executive branch of our government.   People ex rel. Elliott v. Covelli, 415 Ill. 79, 88, 89, 112 N.E.2d 156 (1953). Thus, the court erred in designating the felony charge as a misdemeanor and in treating it as such. This order was void as a judicial encroachment upon the executive power of the State’s Attorney.

The other matters raised by the defendant need not be discussed in view of the position we have taken herein. Accordingly, the judgment is reversed and remanded, subject to the conditions enumerated in the opinion.

Reversed and remanded.

Supreme Court of the United States.

 

VOGEL, Ex’r, etc.,

v.

GRUAZ.

110 U.S. 311, 4 S.Ct. 12, 28 L.Ed. 158

This is an action on the case, brought by Timothy Gruaz, against Rudolph Bircher, to recover damages for the speaking and publishing of false, malicious, scandalous, and defamatory words, charging the plaintiff with being a thief, and with having stolen the money of the defendant, meaning the crime of larceny. The suit was commenced in a state court of Illinois, and was removed by the defendant into the circuit court of the United States for the Southern district of Illinois. At the trial before a jury a verdict was rendered for the plaintiff, June 6, 1879, for $6,000 damages. On the next day the defendant filed a motion for a new trial. On the fourteenth of June the defendant died, on the twelfth of July an order abating the case was moved for, on behalf of the defendant, and on the sixteenth of August the court overruled the motion for a new trial and the motion for an order of abatement, and entered a judgment for the plaintiff, against Bircher, for $6,000 and costs, as of June 7, 1879. The order for judgment recited that the hearing by the court of the motion for a new trial was, when it was filed, postponed to a then future and convenient day of the same term, and that the defendant died pending the hearing of the motion. Leave was given to the executor of the defendant to prepare a bill of exceptions and to take a writ of error. The bill of exceptions being signed, it was filed by the executor, and the writ of error was issued. Various errors are assigned, and among them that the circuit court did not grant the motion to abate the suit, and that it rendered a judgment against Bircher after his death. But it is unnecessary to pass on those questions, because we are of opinion that the judgment must be reversed for another error committed at the trial.

Three witnesses for the plaintiff gave evidence tending to prove the speaking to them by the defendant of more or less of the words set forth in the declaration; and afterwards C. L. Cook was sworn as a witness for the plaintiff, and testified that he was state’s attorney for Madison county, Illinois; he had a slight acquaintance with Bircher; and that he knew Gruaz. The following proceedings then occurred: ‘Question. I will ask you if you had any conversation with Dr. Bircher with regard to Gruaz, and, if so, when was it? Counsel for defense asked witness if at that time he was occupying the same position he now holds. Answer. Yes, sir. Q. It was communicated to you while you held that position and were acting in that capacity, whatever was communicated to you by Bircher? A. Yes, sir. (Defendant’s counsel object to witness testifying to matters disclosed to him by the defendant under the circumstances stated, on the ground that such communications are to be treated as privileged.) The Court. I will ask the witness if he regarded it professionally as a privileged communication? A. I had never met defendant before; he was introduced to me by a citizen of our place, and he informed me that he wanted to talk with me with regard to a matter he wanted to bring before the grand jury. (Objected to.) The Court. I will allow the witness to state what the doctor said on that occasion. Of course, if he made the communication to the witness in good faith, there would be no malice about it, and I shall instruct the jury to* disregard it. The objection is overruled. To which ruling of the court the defendant at the time excepted. A. As I stated, I had at that time no acquaintance with defendant whatever. He inquired for the state’s attorney, and was introduced to me, and he spoke of his affairs. He said he wanted to bring a matter before the grand jury in regard to Mr. Gruaz. I talked with him in regard to the nature of the matter, and he talked pretty freely in regard to it, and I directed him to the grand jury room. He said a good many things. He was evidently in earnest at the time, expressed himself very freely in regard to him. I would not like to swear to the exact words used, or that anybody used at the time. I can give the substance of what he said, I suppose. He wanted to prosecute Gruaz for stealing, was the amount of it. I recollect this: he charged him with having stolen his money, and I asked him how, and he told me how it had been done. Gruaz was his agent and handled his funds, rented his farms, and had failed to account for a large amount of money, he told me, and he charged him in this conversation with having stolen his money, and he said he wanted to know if there was any law in this state to prosecute a man for that. I have no objection to state any words. I remember his making the charge that he had stolen his money, but I can’t swear that the word ‘thief’ was used at that time; that it was in substance, undoubtedly. My impression is that this was the March term, 1878, of the circuit court of Madison county, either that or October term, 1877; my recollection and decided impression is that it was the spring term, 1878. Dr. Bircher went into the grand jury room and gave his statement to the grand jury. He was anxious, of course, to have the indictment found, and he evidently believed or so expressed himself. (Counsel for defendant objected to witness stating his opinion about what defendant evidently believed.) The Court. He said he went before the grand jury, and said he seemed to be in earnest in his movements, but he didn’t say what took place before the grand jury. Don’t know, I suppose. Witness. No, I don’t know. Cross-examination. Maj. Prickett introduced Bircher to me; never saw him before in my life. I was certain he came to see me as prosecuting attorney, in good faith. That was his business, as he stated it to me. After he made his statement to me I advised him to go before the grand jury; directed him to their room. He went there by my advice. Hold on-I don’t say that; I advised him that he had a good case. He came to me and I showed him where the grand jury room was. He stated his case to me as state’s attorney. I then directed him where to go, and said I should prosecute it as vigorously as possible, if the indictment was found. In regard to the advice I gave him, I rather encouraged him to drop the thing; I told him he better sue Mr. Gruaz first, and see if he couldn’t get judgment against him, and so put it in a better shape to prosecute him. He stated his case, and I thought from his statement that he would have few, if any, witnesses besides himself, and that it would be doubtful, however honestly he might believe, that he had cause; it would be doubtful whether the jury would bring a bill; so I advised him to bring a civil suit; but, said I, you are here, and you mustn’t think hardly of me if the grand jury don’t find a bill; and I directed him to the grand jury room.’

The bill of exceptions also contains the following: ‘In reference to the testimony of state’s attorney C. L. Cook, the court instructed the jury as folfows: ‘I admitted that evidence with an explanation, and with the explanation made in the admission of it I think I am content, and I think the jury may take it into consideration; but if they think the defendant was actuated by honest motives in making the declaration he did, they will disregard it.’ To the giving of which last instruction the defendant excepted, for the reason that the instruction ignores the element of want of probable cause, and for the reason also that the jury should have been instructed to disregard Cook’s testimony entirely.’

We are of opinion that what was said by Bircher to Mr. Cook was an absolutely privileged communication. It was said to Mr. Cook while he was state’s attorney or prosecutor of crimes for the county, and while he was acting in that capacity. Bircher inquired for the state’s attorney and was introduced to him, and stated to him that he wanted to talk with him about a matter he wanted to bring before the grand jury in regard to Gruaz. He laid the matter before Mr. Cook, and charged Gruaz with having stolen his money, and was asked how, and stated how and inquired of Mr. Cook if there was any law in Illinois by which a man could be prosecuted for that.  The grand jury was then in session, and Mr. Cook advised Bircher that he had a good case and directed him to the grand jury-room, and Bircher went before the grand jury. If all this had taken place between Bircher and an attorney consulted by him who did not hold the public position which Mr. Cook did, clearly, the communication would have been privileged and not to be disclosed against the objection of Bircher.  Under the circumstances shown, Mr. Cook was the professional adviser of Bircher, consulted by him on a statement of his case, to learn his opinion as to whether there was ground in fact and in law for making an attempt to procure an indictment against Gruaz.  The fact that Mr. Cook held the position of public prosecutor, and was not to be paid by Bircher for information or advice, did not destroy the relation which the law established between them.  It made that relation more sacred on the ground of public policy.  The avenue to the grand jury should always be free and unobstructed.  Bircher might have gone directly before it without consulting with Mr. Cook, but if he chose to consult him instead of a private counsel, there was great propriety in his doing so.  Any person who desires to pursue the same course should not be deterred by the fear of having what he may say in the confidence of a consultation with a professional adviser, supposed to be the best qualified for the purpose, disclosed afterwards in a civil suit against his objection.   Oliver v. Pate, 43 Ind. 132. By the statute of Illinois in force at the time of this occurrence, it was made the duty of each state’s attorney to ‘commence and prosecute’ all criminal actions, suits, indictments, and prosecutions in any court of record in his county, in which the people of the state or county might be concerned. (Rev. St. 1874, c. 14, § 5, subd. 1.) Under this provision it was the province and the privilege of any person who knew of facts tending to show the commission of a crime, to lay those facts before the public officer whose duty it was to commence a prosecution for the crime. Public policy will protect all such communications absolutely, and without reference to the motive or intent of the informer or the question of probable cause; the ground being that greater mischief will probably result from requiring or permitting them to be disclosed than from wholly rejecting them. Mr. Cook learned from Bircher the things to which he testified, because he occupied the position of public prosecuting officer, and because he was acting at the time as the legal adviser of Bircher in respect to the matter and question which Bircher was laying before him. The free and unembarrassed administration of justice in respect to the criminal law in which the public is concerned, is involved in a case like the present, in addition to the considerations which ordinarily apply in communications from client to counsel in matters of purely private concern. Bircher made his communication to Mr. Cook for the purpose of obtaining professional advice as to his right, and that of the public through him, to have a criminal prosecution commenced by Mr. Cook by the intervention of the grand jury against Gruaz.

But there is another view of the subject. The matter concerned the administration of penal justice, and the principle of public safety justifies and demands the rule of exclusion. In Worthington v. Scribner, 109 Mass. 487, an action for maliciously and falsely representing to the treasury department of the United States that the plaintiff was intending to defraud the revenue, it was held that the defendant could not be compelled to answer whether he did not give to the department information of supposed or alleged frauds on the revenue contemplated by the plaintiff. The principle laid down in that case was, that it is the duty of every citizen to communicate to his government any information which he has of the commission of an offense against its laws; and that a court of justice will not compel or allow such information to be disclosed, either by the subordinate officer to whom it is given, by the informer himself, or by any other person, without the permission of the government, the evidence being excluded not for the protection of the witness or of the party in the particular case, but upon general grounds of public policy, because of the confidential nature of such communications. The authorities are collected and reviewed in that case. The case of Dawkins v. Rokeby, L. R. 8 Q. B. 255, there cited, was affirmed by the house of lords, L. R. 7 H. L. 744. See, also, 1 Greenl. Ev. § 250; Black v. Holmes, 1 Fox & Sm. 28.

It makes no difference that there was evidence of the speaking of the same words to persons other than Mr. Cook, and that the speaking of them to Mr. Cook was not the sole ground of action or of recovery. The evidence was incompetent, and it must be inferred that it affected the minds of the jury both on the main issue and on the question of damages.

It results from these views that the judgment below cannot be upheld, and that it must be reversed, and the case be remanded to the circuit court, with direction to set aside the verdict and vacate the judgment and take such further proceedings as may be according to law and not inconsistent with this opinion.

An Analysis of the Collinsville Yard Sale Permit Ordinance

Download this article at Scribd.com http://www.scribd.com/doc/53587936/An-Analysis-of-Yard-Sale-Permit-Ordinances-in-Illinois

This article contains some legal interpretation and analysis. For those who wish to gain a deeper understanding of the issue you are welcome to read the entire article. For the sake of brevity and conciseness I will answer the question of whether or not a permit is required to conduct a yard sale in Collinsville, Illinois. If you are a private individual selling your personal property or items that were not purchased for the purpose of retail sale then you do not need a yard sale permit. You must be involved in a “business” activity of selling “merchandise” advertised as a “yard sale”, “garage sale”, “tag sale”, “basement sale”, or “moving sale”. People selling their property from their yards, garages, basements, or otherwise need not apply for, nor display, the permit.

Even though this article deals with the City of Collinsville’s ordinance I would posit that it applies equally to all municipalities in Illinois since the authority for cities to license is found in Illinois Statutes. In order for a municipality to license this type of activity the statute would have to identify that authority. I would guess that all municipalities who do license yard sales implement language similar to Collinsville.

I received an email from someone who recently moved to Collinsville and was investigating what he was told about needing to procure a yard sale permit. He wished to remain anonymous. He had inquired with the City, using an online form for asking questions. The email forwarded to me read like this:

—————————————————————————————-

Mr. McCoy,

I came upon your website while researching ordinances for Collinsville, Il. You appear to have a bit of history regarding the application of ordinances. I read your piece on the Collinsville Business License Ordinance and thought this may be of some interest to you. I made an inquiry through the City’s FAQ page regarding a yard sale permit. I received the response below. I was curious whether you have studied the yard sale permit provision and the relevance or applicability it has with the Business License Ordinance in general. Thank you for your time. Your website is very informative. While I do not agree with 100% of your conclusions on some things, your analysis and foundation appear to be very well thought out. Thank you for your time.

Your Question:
I was told I needed a permit for a yard sale but the yard sale ordinance comes under the business license ordinance. I am not acting as a business when I sell my personal property. Does the ordinance apply to private men or women who sell their personal property?


Our Solution: (This is the email response from the City)
Thank you for using our system.
The yard sale ordinance has nothing to do with the business license ordinance.  You can obtain a yard sale permit for $2 at the front counter of City Hall (where you pay your water bill).  It can be obtained any time between 8:30 am and 5 pm and it only takes a minute to issue.  You can get it up to the day before your sale starts.  They will give you a copy of the restrictions when you obtain your permit–where you can put your signs, how many sales you are allowed in a year, etc.

Sincerely,

—————————————————————————————-

I want to thank the gentleman for his email as this is something I have studied in the past, but which many people have no interest in learning the truth. For the $2 fee, most would rather trod down to City Hall and get the permit rather than deal with the applicability of the code to their situation. I’m glad this gentleman asked.

To be clear, The Yard Sale Permit has nothing to do with the “Business License Ordinance” as the gentleman stated in his inquiry to the City, and the City was correct in their response to the same question. The yard sale ordinance actually comes under Business License and Regulation. What is commonly referred to as the Business License Ordinance is the Business Registration Ordinance. The Business License Ordinance is what I refused to submit to as working out of my home. That story is here.

So, let’s take a look at the Collinsville Yard Sale Permit Ordinance.

Looking at the City Codes online I see the yard sale ordinance is under Title 5,  which is Business License and Regulations.

It would seem that ordinances under that Title would relate to the Title. “Yard Sales” is under chapter 5.20 under Title 5, which is ” Business Licenses and Regulations”.

Let’s take a look at the first part of Title 5, which applies to all the subtitles as well:

Chapter 5.04
BUSINESS LICENSES GENERALLY*
__________
*State law references:   General authority of city to license, 65 ILCS 5/11-42-1 et seq.
__________

Sec. 5.04.010.  Public policy.
It is the public policy of the City that the public health, safety, morals, interest, convenience, and necessity of the City and the residents thereof require the regulation of businesses and the fixing of a reasonable license fee related thereto.
(Ord. No. 3399, 8-11-2003)

Sec. 5.04.020.  Purpose and jurisdiction.
As each business located in the City is a basic part of and effects the physical and economic well-being of the City, necessitating special services from the City in the form of health inspections and other services, such businesses shall in all respects be in full compliance with the provisions hereinafter contained in this chapter. This chapter is designed to provide for the means whereby the City may render the necessary inspections and services to businesses in order to promote, protect, and safeguard the public safety, health, and welfare of the citizens of the City and to enable the maintenance of an accurate record of businesses located and carrying on commercial activities or commerce within the City. – My question is, what health inspections or other services do yard sales require? Also, looking at the last part of the ordinance you will see “businesses located and carrying on commercial activities or commerce…”  Does that sound like mom, pop, or Joe selling their “stuff”?
(Ord. No. 3399, 8-11-2003)

Sec. 5.04.030.  Definitions.
The following words and phrases as used in this chapter shall have the following meaning, unless a different meaning is required by the context:
Business means any vocation, occupation, profession, enterprise, establishment, concern, or any other type of activity, with the exception of those exemptions as otherwise provided for in this chapter.
Person means any individual, firm, association, sole proprietorship, partnership, corporation, trust, or any other legal entity, except for such person as may be organized as an Illinois not-for-profit corporation or governmental bodies properly organized under the law of the State or of the United States of America.
(Ord. No. 3399, 8-11-2003)

Title 5, where the Yard Sale Ordinance is located, states at 5.04, Business Licenses Generally, “*State law references: “General authority of city to license, 65 ILCS 5/11-42-1 et seq.”

If you go to the Illinois Compiled Statutes under that section, you will see, “(65 ILCS 5/11‑42‑5) (from Ch. 24, par. 11‑42‑5) Sec. 11‑42‑5. The corporate authorities of each municipality may license, tax, regulate, or prohibit hawkers, peddlers, pawnbrokers, itinerant merchants, transient vendors of merchandise,…. (Source: P.A. 96‑1516, eff. 2‑4‑11.)

Remember that word, “Merchandise”.  The statute which the City references as its general authority to license does not list private individuals selling their property. The Yard Sale Ordinance embraces “vendors of merchandise.

Likewise, under the Public Policy Statement for Title 5 it states:

Sec. 5.04.010.  Public policy.It is the public policy of the City that the public health, safety, morals, interest, convenience, and necessity of the City and the residents thereof require the regulation of businesses and the fixing of a reasonable license fee related thereto.(Ord. No. 3399, 8-11-2003)”

Again, the word “business” is used to define the purpose of the Title. So, when viewing the Yard Sale Ordinance, it states:

Sec. 5.20.010.  Definition.Yard sale  means any display of merchandise for the purpose of exchanging it for legal tender or barter at a location not otherwise regularly used or specifically designated for the sale or exchange of merchandise. Events commonly known as “garage sales,” “tag sales,” “moving sales,” or “basement sales” shall be included in the definition of a yard sale. (Ord. No. 3909, 6-11-2007)”

Well, it sounds like if you have a “yard sale” you are exchanging merchandise for legal tender, right? Or are you? I would suggest that if a business uses the terms, “yard sale”, or any of the other terms defined in Sec. 5.20.010 then the permit applies to you. Look at it like this; what the ordinance does is prohibit businesses from selling merchandise under the pretense of a “yard sale”.

Nowhere in Title 5 is the word “merchandise” defined. The Title brings Yard Sales under the regulation of “Businesses” with a distinction of selling “merchandise”. So, the Yard Sale Ordinance involves businesses selling merchandise.

So, what is the definition of “merchandise“? The dictionary says, “–noun1.the manufactured goods bought and sold in any business.2.the stock of goods in a store.3.goods, especially manufactured goods; commodities.
Legal dictionaries often use the following definition”MERCHANDISE. By this term is understood all those things which merchants sell either wholesale or retail, as dry goods, hardware, groceries, drugs, &c. It is usually applied to personal chattels only, and to those which are not required for food or immediate support, but such as remain after having been used or which are used only by a slow consumption. Vide Pardess. n. 8; Dig. 13, 3, 1; Id. 19, 4, 1; Id. 50, 16, 66. 8 Pet. 277; 2 Story, R. 16, 53, 54; 6 Wend. 335.

My contention is that my personal property is NOT merchandise. It is personal property. I am not selling it as a business. Merchandise is a commercial term, as is business. When I engage another individual with the intent of exchanging my property for valuable consideration it is nobody’s business, no pun intended. The City has no authority to control such activity. Looking at the language of the ordinance and how it is organized speaks clearly to that fact, if you don’t belabor it with preconceptions and misinformation.

I wanted to address one more thing, under definitions there is the word “person”. Some people capitulate because of that one word. They believe, “If it says person, then that’s me, and I have to get the permit.” Look at it this way, what if you are not a “person”? Sure, you may think you are, but are you the ‘person” defined in Title 5? What does Title 5 say a “person” is?

Let’s look at how the term “person” is  used throughout Title 5.
Sec. 5.04.030.  Definitions. Person  means any individual, firm, association, sole proprietorship, partnership, corporation, trust, or any other legal entity, except for such person as may be organized as an Illinois not-for-profit corporation or governmental bodies properly organized under the law of the State or of the United States of America.
(Ord. No. 3399, 8-11-2003)

Sec. 5.06.020.  Definitions. Person means any individual, firm, association, sole proprietorship, partnership, corporation, trust, or any other legal entity, including not-for-profit organizations, but excluding governmental bodies properly organized under the law of the State or of the United States of America.

(Ord. No. 3400, 8-11-2003)

Sec. 5.16.010.  Definitions. Person, firm, corporation or association  includes the following: Any person, firm, corporation or association which owns any cigarette vending machines; the person, firm, corporation or association in whose place of business any such machines are placed for use by the public; and the person, firm, corporation or association having control over such machine; provided, however, that the payment of such fee by any person, firm, corporation or association enumerated in this section shall be deemed a compliance with this section.

(Code 1996, § 5.16.010)
Sec. 5.64.020.  Definitions. Person  means any natural person; firm; joint venture, including all participants; partnership, including all partners; association, social club, or fraternal organization, including all officers and directors; corporation, including all officers, directors, and significant stockholders; estate; trust; business trust; receiver; or any other group or combination acting as a unit.
Sec. 5.70.020.  Definitions. Person means any individual, partnership, firm, association, joint stock company, corporation, venture, sole proprietorship, or combination thereof made up of whatever formal or legal character.
Now, there are some subtitles that do not have definitions for the term “person”. In that case the subtitle must use the definition under the main heading at Sec. 5.04.030.  Definitions. However, the Yard Sale Permit Ordinance does not define “person”, thereby forcing us to consult the main heading definition at Sec. 5.04.030.  Definitions. Person is not used as a word, but rather a legal “term”. Once a word has been defined in a piece of legislation it loses its common usage meaning and adopts the definition specified in the legislation.
Let’s look at this definition. It states, “Person  means any individual, firm, association, sole proprietorship, partnership, corporation, trust, or any other legal entity, except for such person as may be organized as an Illinois not-for-profit corporation or governmental bodies properly organized under the law of the State or of the United States of America.” If you notice, there things other than people defined as persons. The definition begins with the word “individual”, but you can’t rely upon that as applying to you.
There is a rule of statutory construction called Ejusdem Generis – (eh-youse-dem generous) v adj. Latin for “of the same kind,” used to interpret loosely written statutes. Where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. Example: if a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, “vehicles” would not include airplanes, since the list was of land-based transportation.
This means the classes of things listed must be of the same kind as the others in the definition. So, breaking it apart we see this:
Person  means any individual, firm, association, sole proprietorship, partnership, corporation, trust, or any other legal entity, except for such person as may be organized as an Illinois not-for-profit corporation or governmental bodies properly organized under the law of the State or of the United States of America.
Let ‘s see what classified the things in this definition.
Individual – Presumed to be a flesh and blood being, but it must conform to Ejusdem Generis.
Partnership – This is a legal entity.
Firm – This is a legal entity.
Association – This is a legal entity.
Joint Stock Company – This is a legal entity.
Corporation – This is a legal entity.
Trust – This is a legal entity.
Or any other legal entity – This is the giveaway.
The line, “or any other legal entity” means that everything preceding is a legal entity, and not a natural entity. A legal entity exists through an act of law, like other things on the list. To be any of them you must make application to the State. They are all defined, and controlled, by the legislature. The legislature never acquired the power to define private people or their dealings. “Or any other legal entity” thereby shows everything in the definition conforming to Ejusdem Generis since the classification is for “legal entities”. If you believe yourself to be a legal entity and engaged in the business of selling merchandise under the label of a yard sale then you need a yard sale permit. If you are a private individual selling your personal property you need no such permission from anyone.
I hope this clears things up a bit. If you have any questions feel free to use my contact form to reach me.

 

Oakland gardener questions need for permit to sell produce.

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/04/01/MNE81INHVU.DTL

Novella Carpenter took over a vacant lot on a hardscrabble corner of West Oakland eight years ago and turned it into a working farm of vegetables, goats, rabbits and, sometimes, pigs.

Carpenter milked goats, made cheese and ate much of the produce. She also wrote a popular book, “Farm City,” about the experience and became an icon of the Bay Area’s urban farming movement.

But the future of her Ghost Town Farm is in question. This week, Oakland officials suggested it may need to close. The reason: She sells excess produce and needs a costly permit to do so.

“It seems ridiculous,” said Carpenter, 38. “I need a conditional use permit to sell chard?”

The news stunned the region’s urban farmers and their supporters, who questioned how a fundamental human task that goes back millennia could become illegal.

“It’s incredibly sad that people can’t grow food and sell it to folks,” said Barbara Finnin, executive director of City Slicker Farms, an Oakland nonprofit that runs produce markets and helps people start their own urban farms.

Profit, not personal use

The city planner who visited Carpenter’s 4,500-square-foot plot at 28th Street and Martin Luther King Jr. Way said he sympathized with Carpenter, but the rules are clear.

Carpenter “is raising these things for a profit,” said Chris Candell, a planner in the city’s building department. “If you’re doing this for your own home consumption, this would not be applied.”

Though his report is not final, Candell said Carpenter probably has three options: pay for a conditional use permit, shut down the farm, or not change anything and face sanctions from the city.

The permit would probably cost several thousand dollars, Candell said, and Carpenter also would have to pay penalties for operating without such a license as she is now. Carpenter works about 25 hours per week at the farm and takes in only about $2,500 a year, before expenses.

Candell said a complaint about rabbits on the property led to the city inquiry. Carpenter believes the critic was upset because she was making rabbit potpies available for an $8 donation.

Carpenter taught herself to grow food and raise livestock. She went Dumpster diving in Oakland’s Chinatown to feed her pigs and learned how to butcher from top chefs.

“I really like to feel connected to food and understand the stories of where my food came from,” she said. “When I started, I did it to feed myself. Then I realized that in Oakland, people are really hungry. So people in the neighborhood came and picked food.”

But she realized there were other benefits, too.

“A garden in the middle of a concrete jungle is a nice thing,” she said. “The garden has become a community space. It’s like a place of beauty as well as production. If you pick your lettuce, it just has more vitamins. … We’re told to go consume and just buy food, but I want to empower myself by growing it.”

Crops in the city

Oakland is considered the center of the urban farming movement, with numerous nonprofits and individual farmers devoted to the cause. Sunset Magazine featured Oakland last year as a “town of the future” because of citizens’ passion for the movement. Carpenter’s farm was featured in the article.

But zoning regulations haven’t quite caught up, planners and urban farmers say.

A conditional use permit might make sense for 40-acre farms, Finnin said, but not when the farm occupies one-tenth of an acre and beets sell for $2 a bunch.

Candell agreed that the zoning is outdated. But he said the rules nonetheless have to be followed.

“We’ve had (these rules) for 50 years or so, but we’re stuck with them until they’re changed,” he said.

In San Francisco, where similar conflicts have arisen, Supervisor David Chiu and Mayor Ed Lee introduced legislation this week to allow growing and selling of garden produce in all neighborhoods. In Oakland, zoning officials and nonprofits have been working on new rules, which are to be debated by the City Council this year.

Guerrilla gardener

Carpenter said it has all been a learning experience. After starting out as a “squat farmer,” she bought the plot for $30,000 in December. The previous owner sold it to her as a favor.

“It was so great squatting,” she said. “I didn’t have costs. I was a total renegade doing something totally illegal, but now that I’m a property owner, that’s when they actually come down on me.

“I can’t fly under the radar and be a punk anymore. I have to actually be an adult and deal with these things.”

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/03/31/MNE81INHVU.DTL#ixzz1J2iicFF4

The cognitive dissonance of SWAT supporters

The cognitive dissonance of SWAT supporters

Over the past few decades, police in the United States have become increasingly militarized. It’s becoming more and more common to see police carrying military-grade weapons and wearing combat armor. Police departments across the county — even those in small towns — are forming paramilitary police units, typically known as SWAT (Special Weapons and Tactics) or SRT (Special Response Team). According to a recent USA Today interview with Peter Kraska, a criminologist whose work focuses on police militarization, SWAT teams were deployed only about 2,000 to 3,000 times per year in the early to mid 80′s. That number has shot up to about 70,000 and 80,000 per year in the present. The main reason for this dramatic increase is the use of SWAT teams for serving routine search or arrest warrants especially for drug suspects. SWAT teams have even been used to investigate suspected underage drinking and unlicensed barber shops.

One of the most frightening aspects of police militarization is the use of so-called “no-knock” searches by SWAT teams. The purpose of a no-knock search is to surprise the occupants of a building and subdue them with an overwhelming show of force before they have an opportunity to react. Police converge on a building — usually in the middle of the night — then smash the door in with a battering ram or explosives. They either announce their presence only a few seconds before breaking the door down or do not announce it at all (hence the “no-knock” title). After breaking in the door, police will sometimes throw deadly explosive devices called flashbang grenades into the home with the ostensible purpose of confusing and disorienting the occupants. They then storm the building and force everyone to the ground at gunpoint, handcuff them, and search the premises.

When police seek to obtain a no-knock warrant, they typically try to justify it in one or two ways. They either argue that they need the element of surprise in order to (1) stop a violence-prone subject before he or she has a chance to violently resist or (2) to stop a subject before he or she has a chance to destroy important evidence (i.e., flushing drugs down the toilet). It’s extremely common for judges to sign off on no-knock warrants for simply because police claim that a confidential informant — who may not even exist, for all the judge knows — claimed that someone was selling drugs. (See Radley Balko’s book Overkill for more on the legal issues surrounding no-knock raids.)

One of the biggest problems with no-knock searches is that people targeted by them often do not realize they are being raided by the police and use firearms or other weapons to defend themselves against the police. This point was made succinctly by Radley Balko in his book Overkill:

[P]olice typically serve these warrants just before dawn, or in the hours just before sunrise. They enter the residence unannounced or with very little notice. The subjects of these raids, then, are woken from deep sleep, and their waking thoughts are confronted with the prospect that their homes are being invaded. Their first reaction is almost certainly alarm, fear, and a feeling of peril. Disorienting devices like flashbang grenades only compound the confusion.

It isn’t difficult to see why a gun owner’s first instinct upon waking to a raid would be to disregard whatever the intruders may be screaming at him and reach for a weapon to defend himself. This is particularly true of someone with a history of violence or engaged in a criminal enterprise like drug dealing. But it’s also true of a law-abiding homeowner who legally owns guns for the purpose of defending his home and family.

– Radley Balko, Overkill: The Rise of Paramilitary Police in America (2006), Cato Institute, p. 32

You can see numerous cases on the Cato Institute’s interactive “Botched Paramilitary Police Raids” mapwhere homeowners have killed police who they thought were robbers and other cases where police have killed confused homeowners.

Just recently, we were able to see video of a no-knock drug raid during which police shot and killed a confused homeowner. The police gathered at the front door of Todd Blair, a suspected meth dealer, in the middle of the night, shouted “Police! Search warrant!” a few times then, approximately two seconds after the first announcement, smashed the door in. The first officer to enter the home, Sgt. Troy Burnett, spotted Blair standing on the opposite side of the room holding a golf club and immediately opened fire on him without warning. He hit Blair three times, killing him instantly.

 

Despite numerous cases of police being shot by confused homeowners or confused homeowners being shot by police during no-knock raids, many SWAT supporters are in complete denial about the phenomenon. For instance, Alicia Hilton and Robert O’Brien of POLICE magazine argue that the shooting of Todd Blair was “objectively reasonable” on the grounds that Blair just had to have known the strangers breaking into his home in the middle of the night were police officers.

Examining the totality of the facts and circumstances in the Blair case, it was objectively reasonable for Sgt. Troy Burnett to shoot and kill Blair. Officers who participated in the search were wearing uniforms labeled police. They announced their presence by yelling, “Police search warrant” twice before they entered the home.

Instead of surrendering to the men he must have realized were officers, Blair lurked in a hallway, brandishing a golf club. The officers passed through the living room and were about to enter the hallway when Sgt. Burnett, the lead officer, saw Blair. An officer in Burnett’s position reasonably could have concluded that Blair posed an immediate threat because Blair was close enough to strike Burnett with the club.

Furthermore, Blair was an alleged meth user and allegedly had been involved in domestic violence. Experienced officers understand that people under the influence of drugs are more likely to commit an assault. The level of force used by Burnett was objectively reasonable.

– Alicia Hilton and Robert O’Brien, “No-Knock Searches: Reasonable or Deadly?” (Mar. 7th, 2011), POLICE: The Law Enforcement Magazine

The pieces of evidence Hilton and O’Brien use to “prove” that Blair knew he was being raided by the police are, on their face, completely and utterly ridiculous. The police were wearing uniforms labeled “POLICE,” but so what? Blair was shot immediately after the police entered his home, so he never even had a chance to read their uniforms. Was Blair supposed to have used his x–ray vision to read the uniforms while the police were on the opposite side of his front door? The police announced their presence before entering as Hilton and O’Brien say, but only two seconds before they smashed Blair’s door in. How do Hilton and O’Brien even know that Blair was able to hear the officers? How do they know he was able to decipher what they were yelling at him? Even if he had heard the police and understood what they were yelling, how was he supposed to know they were actually police officers? It certainly wouldn’t have been the first time someone posed as a police officer in order to get away with a crime.

But the problem with Hilton and O’Brien’s argument runs deeper than their poor supporting evidence. Their argument is faulty on a more fundamental level and for a reason that I think is really worth emphasizing because it goes to show just how far out of touch with reality the supporters of police militarization are. On the one hand, they want us to believe that these raids are necessary because they allow officers to surprise and confuse criminal suspects and leave them with the least possible amount of time to react. On the other hand, whenever someone is surprised or confused by one of these raids and ends up getting shot for picking up a weapon or making a “furtive movement,” they want us to believe that the shooting victim had to have known that the invaders were police and should have peacefully submitted to them with a rehearsed perfection. They can’t have it both ways.

Either no-knock raids are not planned with the goal of surprising and confusing people in mind, in which case it’s not clear what the point of them is, or they are conducted for the purpose of surprising and confusing people, in which case one cannot rationally fault someone for being surprised or confused by one. If no-knock SWAT raids are conducted to surprise and confuse residents — and, as has already been established, they are — then I think it’s “objectively reasonable” to conclude that shooting a homeowner for being surprised and confused during a no-knock raid is an act of cold-blooded murder.

For more about the Todd Blair shooting, check out this older post I wrote about it.

 

You live in a police state. The government is arbitrary. Anything you do is illegal if they say so.

by Jim Davidson on Friday, April 1, 2011 at 10:45pm

https://www.facebook.com/notes/jim-davidson/tyranny/10150139994793045

Evil is as evil does. The work of government is funded by theft. Much of the work involves crime: stealing, killing, raping, torturing, accepting stolen funds, and preventing people from having the peaceful enjoyment of their property (theft, vandalism). We identify these actions in the mundane populace as crime, or “mala in se.” “Evil in itself” because there is a victim who is harmed in each case.

Giving these actions colour of law and putting pretty hats and badges on those engaged in them does not change their character. The actions continue to be mala in se. The victims are very real.

What is hinted at is not religion in the sense of organised hierarchy but ethics and morality, right and wrong, as guided by discovered foundational principles such as the zero aggression principle.

http://www.ncc-1776.org/whoislib.html

Calling it religion to dismiss it does not advance the cause of creating a society based on voluntary ideas.

Most organised religion has served, in the past, as a form of government. Much of organised religious behaviour is “mala in se.” Such as Catholic priests raping children and the pope using treaty obligations (with, e.g., Belgium) to try to cover up the crimes and prevent the criminals from paying compensation and being restricted from future criminal conduct toward children.

When someone does something that is “mala in se” which is “evil in itself” or “wrong in itself” by causing harm to a victim – and I think we should focus initially on physical harm, harm to person, harm to property, and eventually on other meaningful harm to dignity, reputation, etc. – then that person cannot be rehabilitated into a free society of equals without making up for the harm caused. Merely stopping what they have been doing is not enough.

If someone comes to my ranch and steals one of my sheep, that is wrong. That harms me. To say that this person has been “cured” or has done enough to be regarded as normal, non-evil, non-criminal, or good merely because they have stopped is obviously silly. It is insufficient on its face.

To make up for the crime, the sheep would have to be returned to me, or an equivalent sheep of equal or greater value. Also, I would have to be compensated for the time and effort to seek out the criminal, find them, bind them for justice, find the person who judges them, and have that person meet with the person who judges me to render judgement. The court would have to be compensated for their time and costs in adjudicating the dispute. If the sheep were female and bore a lamb or lambs, I would have to be compensated for those, as well. My losses due to not having the sheep in my possession for a period of time would have to be compensated. The court in its judgement might assign other compensation to be paid based on the circumstances of the case.

I believe that once compensation has been made, the crime is erased. The evil has been made good. The wrong is undone. I say erased in the sense of -1 + 1 = 0. Not erased as in forgotten. The insurance company or family that has responsibility for the liabilities of the criminal ought to safeguard against future costs by watching that person closely, perhaps offering training and discussion which would encourage the person to do no wrong again. Go now and sin no more.

Obviously, in cases like murder and rape the compensation might be more extensive. It might not be possible to make up for the crime, ever.

I believe that people know right from wrong and can tell a hawk from a handsaw when the wind is Southerly.

But suppose they were confused? So what? They were “only following orders”? They were “just doing our jobs”? These have the stench of the Nuremberg defense. Every single person has a conscience. Every single person is responsible, individually, for their actions. Whether they were duped, distracted, kept ignorant, or not. Doing things that are wrong remains wrong, and the responsibility remains with the person acting. We call this relationship between actions and their consequences “karma.” Karma is a word meaning “actions have consequences.” A special case is the Heisenberg uncertainty principle.