Monthly Archives: June 2011

Earth – The Insane Asylum

Advertisements

Judge Brian Babka Dodges the Issue of Issuing Arrest Warrants Against Police. Case 10-MR-212 is Dismissed…..for now….

I must admit that I may have been Pollyanna in assuming a judicial officer in St. Clair County, Illinois would faithfully execute the duties of his office. I received word, through a judicial order, on 6/25/11, that a case I was hoping would afford an unbiased and fair examination of the facts was officially dismissed.

BACKGROUND

Upon my persistence in bringing sworn criminal complaints before a court, where the State’s Attorney and police agencies had refused to act due to the charges involving crimes by police officers, I was met at the Circuit Clerk’s Office in St. Clair County, Illinois by Brendan Kelly, the then Clerk of the Circuit Court. On June 17, 2010, I was at the Circuit Clerk’s office making another attempt at filing criminal complaints against Fairview Heights, Illinois police officers Joshua Alemond and Aaron Nyman. I was acting under the direction of Judge Randall Kelly, who imparted to me that a private individual can bring a complaint for a violation of law. Footnote 1 The clerks refused to file my complaints, stating they were unfamiliar with any filing that would address criminal complaints. Upon my insistence, they directed the matter to Brendan Kelly, the Clerk of the Circuit Court, who personally came into the hallway in front of the clerk’s office to meet with me. I explained the situation to him and he then offered to personally take the complaints and determine the best way to address them and to file them, if such action was within his power to do so.  Footnote 2

Mr. Kelly and I communicated over email and voice mail over a week or so. In Mr. Kelly’s email, he make reference to “package of information which you describe as felonies was also similarly file stamped- on August 16, 2010”. What is curious is how this information made it into the file, since I did not deliver to the Clerk any pleadings or documents which needed to be filed. The “package of information” to which Mr. Kelly refers relates to a letter which I sent to Robert Haida, State’s Attorney, John Baricevic, Chief Judge, and Mr. Kelly, Clerk of the Circuit Court. Footnote 3 As a result, Case 10-MR-212, was born. Within that case, are sworn criminal complaints which were delivered to Brendan Kelly on June 17, 2010 and “information” received by him by way of a letter on August 16, 2010. There has been no communication from either the State’s Attorney or Chief Judge in the matter. Something else to consider, as there are fees for every filing with the Circuit Clerk, in this case, a Miscellaneous Remedy, the fee is $246. There was no filing fee tendered by me, or anyone else to my knowledge, and how this case came into existence without a fee being remitted is a question for Mr. Brendan Kelly. Was this an abuse of his discretion and violation of law for allowing a case to be filed without the proper fee and secondly, filing a case of his own volition in another party’s name? Footnote 4

Subsequent to Case 10-MR-212 being created on June 17, 2010, it took until December 7, 2010 for a judge to be assigned by Chief Judge John Baricevic. The assignment fell on Judge Brian Babka of the Twentieth Judicial Circuit. I appeared on February 24, 2011 before Judge Brian Babka. At that initial hearing,  Judge Brian Babka expressed his bemusement about the file contents, which were the criminal complaints filed by Brendan Kelly, being before him in a miscellaneous remedy court. I likewise expressed confusion and explained to Judge Babka that it was not I who filed the case, nor remitted a filing fee. I explained it was Mr. Kelly who acted on my behalf. Judge Babka proceeded to engage me as to what I hoped to achieve and I explained that I believed it was possible to bring charges to a court without the aid of police of the State’s Attorney. When asked by what authority I came to hold such belief I provided the citation for Lindquist v. Friedmans, Inc. Footnote 5 Babka said he would take the case under advisement and review the cited case, following up with a subsequent hearing.

I appeared again before Judge Babka on May 12, 2011. He was cordial and friendly. He told me that the Lidquist case was still good law, but dwelled on the courts use of the word “magistrate” since that case was from 1937. He said that he did not believe there were any “magistrates” to present complaints to and therefore the law, albeit still good, had been rendered moot by the elimination of magistrates. Footnote 5 He said that I may want to channel my energies in other directions rather than going down “blind alleys” in pursuing criminal complaints. He recommended, instead, pursuing civil remedies. He said that the law has become too “automated”, and the process for bringing charges now rests with the State’s Attorney or police. I respectfully disagreed and said that I do  not believe the clear language of the statute would allude to the remedy I sought to only be neutered by the removal of a judicial officer required for carrying it into effect. He said he would keep the case open and set it for another status in a year, but if I found anything to further support my claim or otherwise clarify the “magistrate” issue, I could present it to the court for his review.

DISCUSSION

On June 13, 2011, I filed a Memorandum of Law for Case 10-MR-212, in response to Judge Babka’s interpretation of Lindquist and his acknowledgement of that case not having been overturned by any subsequent Illinois Appellate decision; and in that Memorandum I requested a hearing on the issues therein raised.  Footnote 6 Not only did I further clarify the issue raised by Lindquist regarding the fate of former magistrates, who merely were renamed to “associate judges” under the Illinois Constitution of 1970 and who still retain the power to issue warrants of arrest, I elaborated on the right of an individual to bring charges without the aid of police or State’s Attorney, not resting the entire argument upon Lindquist, but citing other authorities as well. Footnote 6

On June 25, 2011, I received an Order from Judge Babka which was entered on June 20, 2011, in response to my Memorandum and essentially dismissing the case. Footnote 7 In his Order, Babka does not address any of the issues presented, aside from the holding in Lindquist as being a case from 1937, which he said was still good law, and attempting to distinguish that holding with one from People Ex Rel. Daley v. Moran, 94Ill. 2d 41, 445N.E. 2d, 67, Ill. Dec 790. Footnote 8 I contend that the Daley case is not on point for purposes of my argument. I do aver, in my Memorandum, that the State’s Attorney has sole discretion in whether to prosecute, but prosecution and arrest are two different matters. Footnote 9 Within the separation of powers doctrine, only the judiciary has the power to issue warrants of arrest, and the State’s Attorney has the power to pursue prosecution. Footnote 10

Reviewing the Daley case, it seems a judge attempted to direct a State’s Attorney to file an information relating to an offense, to which the State’s Attorney refused and the court pursued the filing of an information itself, and the State’s Attorney responded with a writ of mandamus expunging the court’s order of the information. What distinguishes Daley from Lindquist is that in Daley the issue of arrest is not in controversy. The defendants in Daley were involved in possible plea negotiations over a charge of aggravated battery, and had already been arrested through a complaint brought by the complainant, a police officer. Footnote 11 What has happened in that case is upon arrest, defendants are entitled to a preliminary examination for determining if probable cause exists, and if so, to be held to answer and post bail. Footnote 12 Of course, for this to take place, the defendant must first be arrested, and whether or not a prosecutor proceeds with or declines prosecution, there must first be a warrant issued for the court to ever acquire jurisdiction, which requires a complaint, information, or indictment. Footnote 13 In Daley, the defendants had been charged by complaint and then engaged in plea negotiations. At that point, the State’s Attorney has discretion in how to proceed with prosecution. In Daley, the court attempted to intervene in that discretion, which prompted the writ of mandamus. In my case, I am attempting to have the officers arrested in order to answer the charge. At that point, the parallel between my case and Daley may be drawn since there would then be an arrest initiated by a judicial officer who then hands the prosecution of the offense to the State’s Attorney. With that in mind, the Order entered by Babka, by his reliance upon Daley, is without merit and off-point for the purposes of having warrants of arrest issued as opposed to prosecutorial discretion.

CONCLUSION

What I have now to consider is, which method do I employ to press this issue? I am considering a motion to reconsider Babka’s Order based on the foregoing, as well as a preemptive letter to the Attorney General. Given the inarticulate and imprecise response from St. Clair County judges to-date, I must also consider a Petition for Writ of Mandamus to the Illinois Supreme Court. Honestly, I question whatever satisfaction this endeavor may afford, even if the officers are arrested and held to answer the charges, reasonably presuming Brendan Kelly will exercise his “prosecutorial discretion” and dismiss the charges. Then again, this is not about prevailing in any prosecution, but rather addressing the fundamental question, viz., are individuals bound exclusively to the whim and whimsy of police and prosecutors when seeking justice, or has the avenue to the judiciary for such matters been completely delegated to the administrative branch? If the State’s Attorney has sole discretion in the bringing of charges, then he holds the power of guilt or no guilt as well for there can be no finding of guilt without prosecution; and without the ability to have the accused answer the charges, we are bound to suffer assault by those with impunity and no fear of retaliation under law should they carry favor with those who wield that power, or refuse to wield it, capriciously.

UPDATE 7/7/11

I will be filing my Motion to Reconsider and Motion for Mandatory Judicial Notice today.

http://markmccoy.com/wp/2011/07/07/motion-to-reconsider-courts-dismissal-of-case-10-mr-212-absent-a-review-of-all-authorities-cited-in-plaintiff%E2%80%99s-memorandum-of-law/

http://markmccoy.com/wp/2011/07/07/motion-for-mandatory-judicial-notice-in-support-of-petitioner%E2%80%99s-motion-to-reconsider/

 

RESEARCH REFERENCES

Footnote 1. Report of Proceedings, Sept. 20, 2009 in the case of People v. Mark McCoy, Randall Kelly presiding, discussion on pages 5 – 6. http://markmccoy.com/Record%20of%20Proceedings%209-30-09%20Second%20Appearance.pdf

 

Footnote 2. Excerpt from email on Thu, 26 Aug 2010 10:39:07 from Brendan Kelly. http://markmccoy.com/wp/2010/09/20/email-tete-a-tete-between-myself-and-brendan-kelly-circuit-clerk-of-st-clair-county/

Mr. McCoy:

The original complaints which you describe as misdemeanors were filed with this office and received a “file stamp” on the date which you filed them- June 17, 2010.  When these documents received a case type assignment and placed into an actual file folder is not relevant to the issue of statute of limitations and does not deprive you of any relief at least in that regard.  Again, the “file stamp” date of June 17, 2010 is the relevant date for those documents- the very day you filed them here.

Since those documents were received and file stamped by a deputized clerk of the court, and since the more recent package of information which you describe as felonies was also similarly file stamped- on August 16, 2010- a record of some type had to be created. That is legal obligation as the Clerk of the Court.  As a matter of course, criminal charges of any type either felony or misdemeanor are initiated by the State’s Attorney or grand jury in our case management system.  Since the documents you filed with my office were not filed by either entity, and because some record was required, those filings were assigned case number 10-MR-212.  MR stands for “miscellaneous remedy.”  A wide variety of legal issues fall into that category and is often the case type used when it may not be clear where a party’s pleadings need to go.  In some circumstances, legal issues in an MR case are later assigned a different case type once the court has made a determination where they belong.

 

Footnote 3. This “package of information” was sent via US Mail, Return Receipt Requested, to Mr. Kelly, Mr. Baricevic, and Mr. Haida. I do not see anywhere in that letter where I express any intent for Mr. Kelly to take the contents and add them to an existing case file that likewise was never filed or authorized by me. http://markmccoy.com/wp/2010/08/20/corruption-in-st-clair-county-illinois-officials-refuse-to-prosecute-police-for-misconduct/

Copy of letter regarding Official Misconduct to Officials

Return receipts for letter of official misconduct

 

Footnote 4. The required fee for a Miscellaneous Remedy case, as specified in the Circuit Clerk’s website http://www.circuitclerk.co.st-clair.il.us/NR/rdonlyres/22141ED7-BD4F-4312-BA2A-A34A0584FDFA/0/FeeBook10122010.pdf

This schedule of fees is designed primarily to give you an outline of the fees that are required in civil and criminal cases.  The fees are established by the Illinois General Assembly and the Circuit Court Clerk is mandated to collect them.  The fees of the St. Clair County Circuit Court Clerk are set forth in the 705 ILCS 105/27.1a and set by resolution of the County Board of St. Clair County in order to continue in effect.
ADMINISTRATIVE REVIEW    MR      FILING FEE   $246.00 ANSWER FEE   $146.00

 

Footnote 5. Discussion on the matter found at http://markmccoy.com/wp/2011/06/06/memorandum-of-law-regarding-private-individual-making-criminal-complaint-and-the-former-office-of-magistrate-in-illinois/

Petitioner has appeared twice before the Honorable Brian Babka in response to this case. In the first appearance, Petitioner made his case for bringing criminal complaints against officers Alemond and Nyman. He presented Judge Babka with a the case of Lindquist v. Friedman’s, Inc. 366 Ill. 232, 8 N.E.2d 625 upon which he relied for bringing charges without the assistance or intervention of a police agency or state’s attorney. Judge Babka reviewed the provided case and met again with the Petitioner in a subsequent status hearing. During that hearing, Judge Babka confirmed the holding in Lindquist as having not been overturned in any subsequent Illinois Appellate Opinions. That case did provide for a private individual bringing a criminal complaint before a “magistrate”.  Judge Babka was unclear on the applicability of the word “magistrate” regarding any judicial officers presently serving, stating that the word appears to apply only to cases of antiquity where such officers were hearing complaints brought before them for the purpose of issuing warrants of arrest. Although the law is still “good law”, it appears the avenue for presentment has changed over time with the elimination of the position of magistrates, therefore rendering this procedure ineffective. The State, appeared to, for some reason, have done away with the position of magistrate and instead instituted procedures for individuals wrestling with such issues to bring their complaints before police agencies or State’s Attorneys.

 

Footnote 6.      Statutory authority: 725 ILCS 5/111‑3725 ILCS 5/107‑9725 ILCS 5/102 8725 ILCS 5/107-7725 ILCS 5/102‑10725 ILCS 5/102‑13 Appellate Opinions: Lindquist v. Friedman’s, Inc. 366 Ill. 232, 8 N.E.2d 625 – 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 – People v. United States Fidelity & Guaranty Co.,1925, 238 Ill.App. 112 – Kindred v. Stitt 51 Ill. 401, 1869 WL 5352 (Ill.) – Enright v. Gibson 219 Ill. 550, 76 N.E. 689 – People v. Parker, 374 Ill. 524, N.E.2d 11 – 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 – People v. Krumery, App.1966, 74 Ill.App.2d 298, 220 N.E.2d 241 – 280 Ill. at 166, 117 N.E. at 434 – 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  Secondary Authority: “Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970.”


Footnote 7. Case 10-MR-75 case dismissal by Babka

 

Footnote 8. People Ex Rel. Daley v. Moran, 94Ill. 2d 41, 445N.E. 2d, 67, Ill. Dec 790

http://www.leagle.com/xmlResult.aspx?xmldoc=198313594Ill2d41_1132.xml&docbase=CSLWAR1-1950-1985

http://il.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CSAC%5CIL%5C1983%5C19830104_0000003.IL.htm/qx

 

Footnote 9. http://markmccoy.com/wp/2011/06/06/memorandum-of-law-regarding-private-individual-making-criminal-complaint-and-the-former-office-of-magistrate-in-illinois/

Judge Babka did make clear that the State’s Attorney has ultimate discretion to proceed with the prosecution of criminal offenses, yet the Petitioner maintained that before that discretion may be exercised he still has a right to have charges presented before the State’s Attorney can decline any prosecution. The Petitioner merely wishes to present his complaints before a person authorized by law to hear said complaints and act upon such information, upon a finding of probable cause, and issue warrants for the arrest of said persons so accused. At that point, the ministerial duty of the judicial official is satisfied and the procedural duties thereby shift to the State’s Attorney.

 

Footnote 10. http://www.leagle.com/xmlResult.aspx?xmldoc=198313594Ill2d41_1132.xml&docbase=CSLWAR1-1950-1985

people-ex-rel-daley-v-moran2372

It is a familiar and firmly established principle that the State’s Attorney, as a member of the executive branch of government, is vested with exclusive discretion in the initiation and management of a criminal prosecution. (People ex rel. Davis v. Vazquez (1982), 92 Ill.2d 132, 150; People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531, 539; Ill. Rev. Stat. 1981, ch. 14, par. 5.) That discretion includes the decision whether to prosecute at all, as well as to choose which of several charges shall be brought. (People v. Pankey (1983), 94 Ill.2d 12, 16; People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531, 539.) The Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 111-2(a)) provides that “[a]ll prosecutions of felonies shall be by information or by indictment,” and that “[n]o 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.” An information, of course, is a formal presentation of a criminal charge against a defendant by the People’s representative: the State’s Attorney. (People v. Gahagan (1938), 368 Ill. 475, 478; Ill. Ann. Stat., ch. 38, par. 111-1, Committee Comments, at 321 (Smith-Hurd 1980).) It “shall be signed by the State’s Attorney and sworn to by him or another.” (Ill. Rev. Stat. 1981, ch. 38, par. 111-3(b).) No authority is cited and we have found none authorizing a trial judge to order the State to file an information, or to file that charge on the court’s own motion upon the State’s Attorney’s refusal to do so.We consider such action by a trial judge to be an impermissible exercise by the judicial branch of powers belonging exclusively to the executive and in direct contravention of the applicable statutory mandates. (Ill. Const. 1970, art. II, sec. 1; Ill. Rev. Stat. 1981, ch. 14, par. 5; Ill. Rev. Stat. 1981, ch. 38, par. 111.) A trial judge cannot, consistent with the constitutional principle of separation of powers, assume the role of prosecutor and determine which criminal offense shall be charged and thereafter proceed with disposition of that offense over the State’s objection, and the court had no authority to direct that the information be filed and then accept the guilty pleas thereto. (People ex rel. Elliott v. Covelli)

 

Footnote 11. THE PEOPLE EX REL. RICHARD M. DALEY 94 Ill.2d 41, 445 N.E.2d 270, 1983.IL.

On June 27, 1982, Johnnie and Charles Wilson were charged in a complaint for preliminary examination with aggravated battery. They allegedly struck a police officer in the head and upper body with a car jack. On July 9, the Wilsons appeared before respondent with their attorney. The complaining witness, Officer Willie Cochran, and an assistant State’s Attorney were also present.

 

Footnote 12. 725 ILCS 5/109‑3Sec. 109‑3.  http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072500050HArt%2E+109&ActID=1966&ChapterID=54&SeqStart=15000000&SeqEnd=15600000

Preliminary examination.) (a) The judge shall hold the defendant to answer to the court having jurisdiction of the offense if from the evidence it appears there is probable cause to believe an offense has been committed by the defendant, as provided in Section 109‑3.1 of this Code, if the offense is a felony.

 

Footnote 13. http://markmccoy.com/wp/2011/04/30/how-the-state-of-illinois-commits-fraud-when-charging-an-offense/

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 asworn 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),

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.

 

Other Articles germane to this article:

http://markmccoy.com/wp/2011/01/07/in-the-beginning-a-preface-to-this-subject/
http://markmccoy.com/wp/2010/08/20/corruption-in-st-clair-county-illinois-officials-refuse-to-prosecute-police-for-misconduct/
http://markmccoy.com/wp/2011/03/28/my-pursuit-of-criminal-charges-against-fairview-heights-police-for-beating-me/
http://markmccoy.com/wp/2010/09/20/email-tete-a-tete-between-myself-and-brendan-kelly-circuit-clerk-of-st-clair-county/
http://markmccoy.com/wp/2011/04/13/an-open-letter-to-brendan-kelly-state%E2%80%99s-attorney/
http://markmccoy.com/wp/2011/06/06/memorandum-of-law-regarding-private-individual-making-criminal-complaint-and-the-former-office-of-magistrate-in-illinois/

Tagged , , ,

The Right to Ignore the State by Herbert Spencer

The Right to Ignore the State

by Herbert Spencer (1820-1903)

1. The Right to Voluntary Outlawry

As a corollary to the proposition that all institutions must be subordinated to the law of equal freedom, we cannot choose but admit the right of the citizen to adopt a condition of voluntary outlawry. If every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man, then he is free to drop connection with the state — to relinquish its protection, and to refuse paying toward its support. It is self-evident that in so behaving he in no way trenches upon the liberty of others; for his position is a passive one; and whilst passive he cannot become an aggressor. It is equally self-evident that he cannot be compelled to continue one of a political corporation, without a breach of the moral law, seeing that citizenship involves payment of taxes; and the taking away of a man’s property against his will, is an infringement of his rights. Government being simply an agent employed in common by a number of individuals to secure to them certain advantages, the very nature of the connection implies that it is for each to say whether he will employ such an agent or not. If any one of them determines to ignore this mutual-safety confederation, nothing can be said except that he loses all claim to its good offices, and exposes himself to the danger of maltreatment — a thing he is quite at liberty to do if he likes. He cannot be coerced into political combination without a breach of the law of equal freedom; he can withdraw from it without committing any such breach; and he has therefore a right so to withdraw.

2. The Immorality of the State

“No human laws are of any validity if contrary to the law of nature; and such of them as are valid derive all their force and all their authority mediately or immediately from this original.” Thus writes Blackstone[1], to whom let all honor be given for having so far outseen the ideas of his time; and, indeed, we may say of our time. A good antidote, this, for those political superstitions which so widely prevail. A good check upon that sentiment of power-worship which still misleads us by magnifying the prerogatives of constitutional governments as it once did those of monarchs. Let men learn that a legislature is not “our God upon earth,” though, by the authority they ascribe to it, and the things they expect from it, they would seem to think it is. Let them learn rather that it is an institution serving a purely temporary purpose, whose power, when not stolen, is at the best borrowed.

Nay, indeed, have we not seen that government is essentially immoral? Is it not the offspring of evil, bearing about it all the marks of its parentage? Does it not exist because crime exists? Is it not strong, or as we say, despotic, when crime is great? Is there not more liberty, that is, less government, as crime diminishes? And must not government cease when crime ceases, for very lack of objects on which to perform its function? Not only does magisterial power exist because of evil; but it exists by evil. Violence is employed to maintain it; and all violence involves criminality. Soldiers, policemen, and gaolers; swords, batons, and fetters, are instruments for inflicting pain; and all infliction of pain is in the abstract wrong. The state employs evil weapons to subjugate evil, and is alike contaminated by the objects with which it deals, and the means by which it works. Morality cannot recognize it; for morality, being  simply a statement of the perfect law can give no countenance to anything growing out of, and living by, breaches of that law. Wherefore, legislative authority can never be ethical must always be conventional merely.

Hence, there is a certain inconsistency in the attempt to determine the right position, structure, and conduct of a government by appeal to the first principles of rectitude. For, as just pointed out, the acts of an institution which is in both nature and origin imperfect, cannot be made to square with the perfect law. All that we can do is to ascertain, firstly, in what  attitude a legislature must stand to the community to avoid being by its mere existence an embodied wrong; — secondly, in what manner it must be constituted so as to exhibit the least incongruity with the moral law; — and thirdly, to what sphere its actions must be limited to prevent it from multiplying those breaches of equity it is set up to prevent.

The first condition to be conformed to before a legislature can be established without violating the law of equal freedom, is the acknowledgment of the right now under discussion — the right to ignore the state.[2]

3. The People as the Source of Power

Upholders of pure despotism may fitly believe state-control to be unlimited and unconditional. They who assert that men are made for governments and not governments for men, may consistently hold that no one can remove himself beyond the pale of political organization. But they who maintain that the people are the only legitimate source of power — that legislative authority is not original, but deputed — cannot deny the right to ignore the state without entangling themselves in an absurdity.

For, if legislative authority is deputed, it follows that those from whom it proceeds are the masters of those on whom it is conferred: it follows further, that as masters they confer the said authority voluntarily: and this implies that they may give or withhold it as they please. To call that deputed which is wrenched from men whether they will or not, is nonsense. But what is here true of all collectively is equally true of each separately. As a government can rightly act for the people, only when empowered by them, so also can it rightly act for the individual, only when empowered by him. If A, B, and C, debate whether they shall employ an agent to perform for them a certain service, and if whilst A and B agree to do so, C dissents, C cannot equitably be made a party to the agreement in spite of himself. And this must be equally true of thirty as of three: and if of thirty, why not of three hundred, or three thousand, or three millions?

4. Subordination of Government Authority Of the political superstitions lately alluded to, none is so universally diffused as the notion that majorities are omnipotent. Under the impression that the preservation of order will ever require power to be wielded by some party, the moral sense of our time feels that such power cannot rightly be conferred on any but the largest moiety of society. It interprets literally the saying that “the voice of the people is the voice of God,” and transferring to the one the sacredness attached to the other, it concludes that from the will of the people, that is of the majority, there can be no appeal. Yet is this belief entirely erroneous.

Suppose, for the sake of argument, that, struck by some Malthusian panic, a legislature duly representing public opinion were to enact that all children born during the next ten years should be drowned. Does anyone think such an enactment would be warrantable? If not, there is evidently a limit to the power of a majority. Suppose, again, that of two races living together — Celts and Saxons, for example — the most numerous determined to make the others their slaves. Would the authority of the greatest number be in such case valid? If not, there is something to which its authority must be subordinate. Suppose, once more, that all men having incomes under 50 pounds a year were to resolve upon reducing every income above that amount to their own standard, and appropriating the excess for public purposes.

Could their resolution be justified? If not, it must be a third time confessed that there is a law to which the popular voice must defer. What, then, is that law, if not the law of pure equity — the law of equal freedom? These restraints, which all would put to the will of the majority, are exactly the restraints set up by that law. We deny the right of a majority to murder, to enslave, or to rob, simply because murder, enslaving, and robbery are violations of that law — violations too gross to be overlooked. But if great violations of it are wrong, so also are smaller ones. If the will of the many cannot supersede the first principle of morality in these cases, neither can it in any. So that, however insignificant the minority, and however trifling the proposed trespass against their rights, no such trespass is permissible.

When we have made our constitution purely democratic, thinks to himself the earnest reformer, we shall have brought government into harmony with absolute justice. Such a faith, though perhaps needful for this age, is a very erroneous one. By no process can coercion be made equitable. The freest form of government is only the least objectional form. The rule of the many by the few we call tyranny: the rule of the few by the many is tyranny also; only of a less intense kind. “You shall do as we will, and not as you will,” is in either case the declaration: and if the hundred make it to the ninety-nine, instead of the ninety-nine to the hundred, it is only a fraction less immoral. Of two such parties, whichever fulfills this declaration necessarily breaks the law of equal freedom: the only difference being that by the one it is broken in the persons of ninety-nine, whilst by the other it is broken in the persons of a hundred. And the merit of the democratic form of government consists solely in this, that it trespasses against the smallest number.

The very existence of majorities and minorities is indicative of an immoral state. The man whose character harmonizes with the moral law, we found to be one who can obtain complete happiness without diminishing the happiness of his fellows. But the enactment of public arrangements by vote implies a society consisting of men otherwise constituted — implies that the desires of some cannot be satisfied without sacrificing the desires of others — implies that in the pursuit of their happiness the majority inflict a certain amount of unhappiness on the minority — implies, therefore, organic immorality. Thus, from another point of view, we again perceive that even in its most equitable form it is impossible for government to dissociate itself from evil; and further, that unless the right to ignore the state is recognized, its acts must be essentially criminal.

5. The Limits of Taxation

That a man is free to abandon the benefits and throw off the burdens of citizenship, may indeed be inferred from the admissions of existing authorities and of current opinion. Unprepared as they probably are for so extreme a doctrine as the one here maintained, the radicals of our day yet unwittingly profess their belief in a maxim which obviously embodies this doctrine. Do we not continually hear them quote Blackstone’s assertion that “no subject of England can be constrained to pay any aids or taxes even for the defense of the realm or the support of government, but such as are imposed by his own consent, or that of his representative in parliament?” And what does this mean? It means, say they, that every man should have a vote. True: but it means much more. If there is any sense in words it is a distinct enunciation of the very right now contended for. In affirming that a man may not be taxed unless he has directly or indirectly given his consent, it affirms that he may refuse to be so taxed; and to refuse to be taxed, is to cut all connection with the state. Perhaps it will be said that this consent is not a specific, but a general one, and that the citizen is understood to have assented to everything his representative may do, when he voted for him. But suppose he did not vote for him; and on the contrary did all in his power to get elected someone holding opposite views — what them? The reply will probably be that, by taking part in such an election, he tacitly agreed to abide by the decision of the majority. And how if he did not vote at all? Why then he cannot justly complain of any tax, seeing that he made no protest against its imposition. So, curiously enough, it seems that he gave his consent in whatever way he acted — whether he said yes, whether he said no, or whether he remained neuter!  A rather awkward doctrine this. Here stands an unfortunate citizen who is asked if he will pay money for a certain proffered advantage; and whether he employs the only means of expressing his refusal or does not employ it, we are told that he practically agrees; if only the number of others who agree is greater than the number of those who dissent. And thus we are introduced to the novel principle that A’s consent to a thing is not determined by what A says, but by what B may happen to say!

It is for those who quote Blackstone to choose between this absurdity and the doctrine above set forth. Either his maxim implies the right to ignore the state, or it is sheer nonsense.

6. On Civil and Religious Liberty

There is a strange heterogeneity in our political faiths. Systems that have had their day, and are beginning here and there to let the daylight through, are patched with modern notions utterly unlike in quality and colour; and men gravely display these systems, wear them, and walk about in them, quite unconscious of their grotesqueness. This transition state of ours, partaking as it does equally of the past and the future, breeds hybrid theories exhibiting the oddest union of bygone despotism and coming freedom. Here are types of the old organization curiously disguised by germs of the new — peculiarities showing adaptation to a preceding state modified by rudiments that prophesy of something to come — making altogether so chaotic a mixture of relationships that there is no saying to what class these births of the age should be referred.

As ideas must of necessity bear the stamp of the time, it is useless to lament the contentment with which these incongruous beliefs are held. Otherwise it would seem unfortunate that men do not pursue to the end the trains of reasoning which have led to these partial modifications. In the present case, for example, consistency would force them to admit that, on other points besides the one just noticed, they hold opinions and use arguments in which the right to ignore the state is involved.

For what is the meaning of Dissent? The time was when a man’s faith and his mode of worship were as much determinable by law as his secular acts; and, according to provisions extant in our statute-book, are so still. Thanks to the growth of a Protestant spirit, however, we have ignored the state in this matter — wholly in theory, and partly in practice. But how have we done so? By assuming an attitude which, if consistently maintained, implies a right to ignore the state entirely. Observe the positions of the two parties. “This is your creed,” says the legislator; “you must believe and openly profess what is here set down for you.” “I shall not do anything of the kind,” answers the nonconformist, “I will go to prison rather.” “Your religious ordinances,” pursues the legislator, “shall be such as we have prescribed. You shall attend the churches we have endowed, and adopt the ceremonies used in them.”  Nothing shall induce me to do so,” is the reply; “I altogether deny your power to dictate to me in such matters, and mean to resist to the uttermost.” “Lastly,” adds the legislator, “we shall require you to pay such sums of money toward the support of these religious institutions, as we may see fit to ask.” “Not a farthing will you have from me,” exclaims our sturdy Independent: “even did I believe in the doctrines of your church (which I do not), I should still rebel against your interference; and if you take my property, it shall be by force and under protest.”

What now does this proceeding amount to when regarded in the abstract? It amounts to an assertion by the individual of the right to exercise one of his faculties — the religious sentiment — without let or hindrance, and with no limit save that set up by the equal claims of others. And what is meant by ignoring the state? Simply an assertion of the right similarly to exercise all the faculties. The one is just an expansion of the other — rests on the same footing with the other — must stand or fall with the other. Men do indeed speak of civil and religious liberty as different things; but the distinction is quite arbitrary. They are parts of the same whole and cannot philosophically be separated.

“Yes they can,” interposes an objector; “assertion of the one is imperative as being a religious duty. The liberty to worship God in the way that seems to him right, is a liberty without which a man cannot fulfill what he believes to be Divine commands, and therefore conscience requires him to maintain it.” True enough; but how if the same can be asserted of all other liberty? How if maintenance of this also turns out to be a matter of conscience? Have we not seen that human happiness is the Divine will — that only by exercising our faculties is this happiness obtainable — and that it is impossible to exercise them without freedom? And if this freedom for the exercise of faculties is a condition without which the Divine will cannot be fulfilled, the preservation of it is, by our objector’s own showing, a duty. Or, in other words, it appears not only that the maintenance of liberty of action may be a point of conscience, but that it ought to be one. And thus we are clearly shown that the claims to ignore the state in religious and in secular matters are in essence identical.

The other reason commonly assigned for nonconformity, admits of similar treatment. Besides resisting state dictation in the abstract, the dissenter resists it from disapprobation of the doctrines taught. No legislative injunction will make him adopt what he considers an erroneous belief; and, bearing in mind his duty toward his fellow-men, he refuses to help through the medium of his purse in disseminating this erroneous belief. The position is perfectly intelligible. But it is one which either commits its adherents to civil nonconformity also, or leaves them in a dilemma. For why do they refuse to be instrumental in spreading error? Because error is adverse to human happiness. And on what ground is any piece of secular legislation disapproved? For the same reason — because thought adverse to human happiness. How then can it be shown that the state ought to be resisted in the one case and not in the other? Will any one deliberately assert that if a government demands money from us to aid in teaching what we think will produce evil, we ought to refuse it; but that if the money is for the purpose of doing what we think will produce evil, we ought not to refuse it?

Yet such is the hopeful proposition which those have to maintain who recognize the right to ignore the state in religious matters, but deny it in civil matters.

7. Progress Hindered by Lack of Social Morality

The substance of the essay once more reminds us of the incongruity between a perfect law and an imperfect state. The practicability of the principle here laid down varies directly as social morality. In a thoroughly vicious community its admission would be productive of anarchy. In a completely virtuous one its admission will be both innocuous and inevitable.

Progress toward a condition of social health — a condition, that is, in which the remedial measures of legislation will no longer be needed, is progress toward a condition in which those remedial measures will be cast aside, and the authority prescribing them disregarded. The two changes are of necessity coordinate. That moral sense whose supremacy will make society harmonious and government unnecessary, is the same moral sense which will then make each man assert his freedom even to the extent of ignoring the state — is the same moral sense which, by deterring the majority from coercing the minority, will eventually render government impossible. And as what are merely different manifestations of the same sentiment must bear a constant ratio to each other, the tendency to repudiate governments will increase only at the same rate that governments become needless.

Let not any be alarmed, therefore, at the promulgation of the foregoing doctrine. There are many changes yet to be passed through before it can begin to exercise much influence. Probably a long time will elapse before the right to ignore the State will be generally admitted, even in theory. It will be still longer before it receives legislative recognition. And even then there will be plenty of checks upon the premature exercise of it. A sharp experience will sufficiently instruct those who may too soon abandon legal protection. Whilst, in the majority of men, there is such a love of tried arrangements, and so great a dread of experiments, that they will probably not act upon this right until long after it is safe to do so.

8. The Coming Decay of the State

It is a mistake to assume that government must necessarily last forever. The institution marks a certain stage of civilization — is natural to a particular phase of human development. It is not essential, but incidental. As amongst the Bushmen we find a state antecedent to government, so may there be one in which it shall have become extinct. Already has it lost something of its importance. The time was when the history of a people was but the history of its government. It is otherwise now. The once universal despotism was but a manifestation of the extreme necessity of restraint. Feudalism, serfdom, slavery, all tyrannical institutions, are merely the most vigorous kinds of rule, springing out of, and necessary to, a bad state of man.

The progress from these is in all cases the same — less government. Constitutional forms means this. Political freedom means this. Democracy means this. In societies, associations, joint-stock companies, we have new agencies occupying big fields filled in less advanced times and countries by the State. With us the legislature is dwarfed by newer and greater powers — is no longer master, but slave. “Pressure from without” has come to be acknowledged as ultimate ruler. The triumph of the Anti-Corn Law League is simply the most marked instance yet of the new style of government, that of opinion, overcoming the old style, that of force. It bids fair to become a trite remark that the law-maker is but the servant of the thinker. Daily is Statecraft held in less repute. Even the “Times” can see that “the social changes thickening around us establish a truth sufficiently humiliating to legislative bodies,” and that “the great stages of our progress are determined rather by the spontaneous workings of society, connected as they are with the progress of art and science, the operation of nature, and other such unpolitical causes, than by the proposition of a bill, the passing of an act, or any other event of politics or of State.” Thus, as civilization advances, does government decay. To the bad it is essential; to the good, not. It is the check which national wickedness makes to itself, and exists only to the same degree. Its continuance is proof of still-existing barbarism. What a cage is to the wild beast, law is to the selfish man. Restraint is for the savage, the rapacious, the violent; not for the just, the gentle, the benevolent. All necessity for external force implies a morbid state. Dungeons for the felon; a strait jacket for the maniac; crutches for the lame; stays for the weak-backed; for the infirm of purpose a master; for the foolish a guide; but for the sound mind in a sound body none of these. Were there no thieves and murderers, prisons would be unnecessary. It is only because tyranny is yet rife in the world that we have armies. Barristers, judges, juries, all the instruments of law, exist simply because knavery exists. Magisterial force is the sequence of social vice, and the policeman is but the complement of the criminal. Therefore it is that we call government “a necessary evil.”

What then must be thought of a morality which chooses this probationary institution for its basis, builds a vast fabric of conclusions upon its assumed permanence, selects acts of parliament for its materials, and employs the statesman for its architect? The expediency philosopher does this. It takes government into partnership, assigns to it entire control of its affairs, enjoins all to defer to its judgment, makes it, in short, the vital principle, the very soul, of its system. When Paley teaches that “the interest of the whole society is binding upon every part of it,” he implies the existence of some supreme power by which “that interest of the whole society” is to be determined. And elsewhere he more explicitly tells us that for the attainment of a national advantage the private will of the subject is to give way, and that “the proof of this advantage lies with the legislature.” Still more decisive is Bentham when he says that “the happiness of the individuals of whom a community is composed — that is, their pleasures and their security — is the sole end which the legislator ought to have in view, the sole standard in conformity with which each individual ought, as far as depends upon the legislature, to be made to fashion his behavior.” These positions, be it remembered, are not voluntarily assumed; they are necessitated by the premises. If, as its propounder tells us, “expediency” means the benefit of the mass, not of the individual, — of the future as much as of the present, — it presupposes someone to judge of what will most conduce to that benefit.

Upon the “utility” of this or that measure the views are so various as to render an umpire essential. Whether protective duties, or established religions, or capital punishments, or poor laws, do or do not minister to the “general good” are questions concerning which there is such difference of opinion that, were nothing to be done till all agreed upon them, we might stand still to the end of time. If each man carried out, independently of a State power, his own notions of what would best secure “the greatest happiness of the greatest number,” society would quickly lapse into confusion. Clearly, therefore, a morality established upon a maxim of which the practical interpretation is questionable involves the existence of some authority whose decisions respecting it shall be final, — that is, a legislature. And without that authority such a morality must ever remain inoperative.

See here, then, the predicament, a system of moral philosophy professes to be a code of correct rules for the control of human beings — fitted for the regulation of the best as well as the worst members of the race — applicable, if true, to the guidance of humanity in its highest conceivable perfection. Government, however, is an institution originating in man’s imperfection; an institution confessedly begotten by necessity out of evil; one which might be dispensed with were the world peopled with the unselfish, the conscientious, the philanthropic; one, in short, inconsistent with this same “highest conceivable perfection.” How, then, can that be a true system of morality which adopts government as one of its premises?

Author’s Endnotes

[1] Sir William Blackstone (1723-1780) was the most renowned of English jurists.

[2] Hence may be drawn an argument for direct taxation; seeing that only when taxation is direct does repudiation of state burdens become possible.

 

WIU Wheeler block party demonstrates severity of police state

This post is a little late, but better late than never. In early May of this year, videos and eyewitness reports revealed an excessive and brutal police operation at the annual Western Illinois University (WIU) Wheeler block party. This is an event largely missed by the mainstream media, perhaps because the cognitive dissonance created by such an event was too much for them to handle, and it was much easier to pander to misguided patriotism by overplaying the news about Bin Laden, and filling the media with images of drunk or happy Americans embracing, holding hands, cheering on the death of one man as if it were the second coming of Christ.

As many Americans across the country were drinking to excess, chanting patriotic slogans, and idiotically screaming about how the death of one man was a symbol of American power and freedom, police here at home were busy proving the ignorance and servility of many Americans.

The Wheeler block party is an annual celebration for the end of the school year. One news source alleges that an annual block party “turned violent” and police were called in because someone started a fire, and there were concerns of vandalism and excessive alcohol consumption. However, based on eyewitness accounts, it would seem the party turned violent because the police showed up, not the other way around.

Students were celebrating the end of the school year. Julio Rausseo, student, investigative journalist, and eyewitness to the event observed it was a peaceful event throughout most of the day.  At about 6 p.m. at night, some students got slightly out of hand. Police saw students place a bicycle on top of a stop sign, but did not take any action.  However, soon thereafter, police in full SWAT riot gear marched down the street in rows and began attacking students. Police also employed sound canons. Mr. Rausseo’s friend was tear gassed for sitting  outside her own house. Mr. Rausseo himself was threatened for filming. Many students were tackled for no apparent reason.

From the videos and photographs available, it appears the block party created quite a mess. A significant amount of trash littered the streets. People were likely loud and drunk. Even so, the footage of police in SWAT gear marching down down a suburban neighborhood in rows in response to some rowdy, messy college kids should pose a bit of concern for the people chanting “USA! USA! USA!” in a zombie-like fashion, reveling in false superiority and freedom.

Police Chief Curt Barker explained, “Everybody was told to leave, so technically, if you’re standing there and you’re walking up to the crowd control unit and screaming, you’re subject to disorderly conduct and that’s what those individuals were charged with.” “We had undercover officers in the crowd, watching for individuals throwing beer bottles, and those people were grabbed and charged with aggravated battery.”  The fact police were marching down the street in SWAT gear, throwing people to the ground, and using tear gas and sound canons in response to littering and loud noise is absurd enough. That the penalty for screaming and yelling at police for their violent behavior is further disproportionate punishment and yet another slap in the face of liberty.

In this country, if the police don’t like the way a person looked at them, or talked to them, they can easily find some stupid crime as a pretext for harassment, abuse and arrest. Loitering. Disorderly conduct. Jaywalking. Delaying or resisting. The list goes on and on. Peaceful people suddenly turn into criminals if they do not submit like good slaves and [god forbid!]if they dare so much as utter an impolite word to a member of the hallowed ranks.

According to the Reality Report, the University newspaper subsequently put out a hit piece on students who were participating in the annual celebration, calling them anarchists. The article accused students of starting a riot, although people who were actually there suspected that a fire was purposely started by members of the ROTC, not “anarchists” or violent students.

View another video of the event here.

 

 

Cedar Falls, Iowa City Council Demands Keys to Resident's Property

Watch this video and tell me this does not outrage you.

A link to the actual excerpt from the May 23, 2011 meeting from the Cedar Falls website is here http://agenda.cedarfalls.com/sirepub/mtgviewer.aspx?meetid=103&doctype=AGENDA&itemid=4400

This link is to the subsequent meeting on June 13, 1011 where the ordinance passed http://agenda.cedarfalls.com/sirepub/mtgviewer.aspx?meetid=105&doctype=AGENDA&itemid=4481

I recommend watching the entire excerpt if you can find the time. I want to say thank you to Nick Taiber, who aptly presented a well-reasoned objection to this proposed ordinance and his standing firm in the face of what must have been daunting peer pressure. One council members, John Runchey, alludes to an authority higher than he or the citizens. Let me tell you something, Mr. Runchey, the people are the ultimate authority. Do not refer to some judicial misfit lurking in the wings to prop your flaccid position on some inane reading of powers posses by government through the Constitution. You are not deserving of holding any position of governance or representation because you are devoid of any concept of the flow of power.

The proposed ordinance, 2740, by the Cedar Falls, Iowa City Council imposes a duty upon commercial property to make available access to their property by way of lock boxes. This includes businesses, apartments, and some rental units. It is allegedly promulgated under the authority of the 2009 edition of the International Fire Code. Chief John Schilling of the Cedar Falls Fire Department is the lackey who supports introducing into his enforcement penumbra a code of international standards as being imposed upon the citizens of Cedar Falls. Schilling also comments on his belief that the constitutionality of such an ordinance has had to have been pondered somewhere, since he alleges this program being implemented in larger metropolitan cities like Washington, D.C. and Chicago. Mr. Schilling, who cares what the constitutionality of this measure is? The bottom line is that when the people find a law oppressive they have a right to act or resist in spite of what powers you believe come from the Constitution.

This is but one of the methods by which municipalities slowly pry themselves into the lives of the unwitting without any requirement for constitutionality. If you submit, you have no claim. The constitution, in all its impotent glory, is designed to be a tool to protect us from government. If you pave the path to your liberty for which to permit governmental intrusion, then the constitution has no place in protecting the ignorant from themselves.

The City of Collinsville has attempted a number of intrusions into private lives, beginning with businesses and landlords; again, to test the waters of compliance. I’ve written on a number of them including these:

http://markmccoy.com/wp/2010/05/18/an-analysis-of-the-proposed-occupancy-code-for-collinsville-illinois/

http://markmccoy.com/wp/2011/04/11/an-analysis-of-the-collinsville-yard-sale-permit-ordinance/

http://markmccoy.com/wp/2010/10/14/the-collinsville-illinois-business-license-ordinance/

http://markmccoy.com/wp/2010/10/12/part-ii-of-the-collinsville-attempt-at-crime-free-but-you-dont-need-to-know/

You have to admire the arrogance of the city council and their insistence that they are keeping the citizens “safe”. It makes you wonder if they consider the people as part of the citizenry, or if it is just another name for the elite.  Particularly frustrating is the clueless councilman Kamyar Enshayan. A self-aggrandizing megalomaniac, he smugly retorts with scripted indifference at the objections of the attendees. Seeing as how these council persons live within the community, it should not be difficult for the citizens to make their voice, “abundantly clear”. I would see to it that their only concern for safety would be that of their own, and as a result, a rare appearance out in public or to council meetings where they wield their condescension.

I believe there is a concerted effort among various municipalities in testing such legislation in hopes of gaining intrusion into our lives with nary a whimper.

Mr Kamyar Enshayan is quoted as saying, “The merit of an idea does not depend on the number of people who hold that idea.” Mr. Enshayan, would you say that likewise applies to people who hold the idea that government is tasked with providing individual protection or safety? The merit of government, as well as you and your ilk, does not depend on the number of people who breathe life into your caustic personna, but rather depends on the resolve of the limited few or individuals standing firm against your intentions.

For those who wish to reach out to the council, here is their contact information.

http://www.ci.cedar-falls.ia.us/index.aspx?nid=93

City Council Members 

 

 

Tom HagartyTom Hagarty

1st Ward

thagarty@cfu.net

809 Franklin Street

Cedar Falls, IA 50613

Ph: (319) 266-1321

 

Susan DeBuhr

Susan DeBuhr

2nd Ward

debuhrs@cfu.net

1713 Continental Access StreetCedar Falls, IA 50613

Ph: (319) 277-8974

 

 

John Runchey – This man should be tarred and feathered for his idiotic comments about keeping people safe. Where is the authority for doing this, Mr. Runchey?

John Runchey

3rd Ward

mcrun@cfu.net

920 Columbine Drive

Cedar Falls, IA 50613

Ph: (319) 277-1053

Ph: (319) 415-9350

 

 

Kamyar Enshayan – This man is simply a blithering idiot who wants to protect everyone from everything but the city government.

Kamyar Enshayan

4th Ward

kenshayan@gmail.com

1703 Washington Street

Cedar Falls, IA 50613

Ph: (319) 266-5468

Ph: (319) 273-7575

 

Frank Darrah

Frank Darrah

5th Ward

wfd@cfu.net

1915 Greenhill Drive

Cedar Falls, IA

Ph: (319) 277-2801

Ph: (319) 290-0381

 

Nick Taiber – Nick is the only council member who voted against the proposed ordinance. Thank you Mr. Taiber! 

Nick Taiber

At Large

ntaiber@cfu.net

221 W. 13th Street

Cedar Falls, IA 50613

Ph: (319) 610-8370

 

Mayor Jon Crews 

Mayor Jon Crews

Contact the Mayor’s Office

By phone at 319-268-5119

By email at jon.crews@cedarfalls.com

 

David WielandDavid Wieland 

At Large

wielandd@asme.org

4201 Heritage Road

Cedar Falls, IA 50613

Ph: (316) 266-4300

In closing, I would urge the citizens of Cedar Falls who are forced to comply with this mandate to purchase a used box, hang it from your door, and break the key off in the lock. Who’s to say “how” it happened?  Also, if anyone from Cedar Falls sees this article, please forward to me a copy of the legal brief the City relied upon in supporting this ordinance. They always begin with commercial activities and as time goes on, people forget the limited application and through legalese and custom, they slowly implement on the unwitting and unaware.

Judge Jose Longoria sentences mom for spanking her child.

This story, out of Corpus Christi, Texas, has gotten fairly decent attention, albeit has been misrepresented in a number of ways. Some of the headlines state the judge “convicted the mother” of spanking her child, when in-fact she pleaded guilty. The judge merely passed sentence. That said, the comments made by Judge Jose Longoria speak to an unreasonable and despotic man who is very fit to wear the dress and bang the gavel of just-us. I will not attempt to raise the judiciary to some level of respect of nobility by stating that such acts are beyond its imagination since this type of conduct is exactly what the judiciary was created for. Longoria merely did what the people allowed him to do by their either electing or otherwise supporting him. It is like blaming a wolf for devouring a sheep when it was yourselves who placed the wolf in the barnyard.

As I stated in posts to the story, here is the lesson taught by the State. They will teach you that you have no interest in your children other than what they give you. They will teach your children that they will find safety and security in us; and if, upon reaching an age which they determine is reasonable, will beat, torture, or jail your children for their disobedience. Parents are hereby declared, impotent and the State omnipotent. For whatever reason, Mrs. Gonzales pleaded guilty to the charges. She should have demanded a jury trial because as the prosecutor even admitted, there is no clear law that criminalizes the spanking of one’s own child. ‚ Every now and then the government will bring absurd charges against people they believe sufficiently ignorant or intimidated as a litmus test for their arrogance. No longer does the law have to rely upon the written word where acts and prohibitions are clearly defined, they now resort to presumption and the arbitrary edicts of judges.

Benches throughout this country are polluted with men and women of such‚ villainy and there is but little recourse but to either not avail yourself to their unjust system or know how to defend yourself. Short of someone sufficiently outraged and indignant at the abuse which oozes from their gavel withdrawing their allegiance to this system of abuse, I can see a time where solitary individuals will resort to skulking into a judge’s residence and spiriting them from the comfort and safety of their bed to be tortured or dismembered as a statement of exasperation and saturation.

Meanwhile, men such as Jose Longoria will continue to exploit ignorance and exercise tyranny over the timid and weak. He believes parents are not within their rights to discipline their own children by spanking, but I would dare say that when that child fails to submit to the will of the State, he would have nothing to say about police either Tasering, pepper spraying, cuffing, or beating that same child should it fall from the grace of one of the State’s agents. Such men are of the lowest sort and should be dealt with accordingly.

If you wish to reach out to Judge Longoria, here is information you may use on expressing whatever your opinion, hopefully that of outrage.

Jose Longoria (D)
State District Judge (Nueces)

Residential Information

JOSE‚  LONGORIA

5050 GREENBRIAR

CORPUS CHRISTI, TX 78413

(361) 992-2267

Entered Office: 01-01-2001

Term Ends: 12-31-2012
District: 214
General Information
Profession: Judge
Home Town: Corpus Christi
Birthdate: 03-02-1943
Contact and Phone Numbers
901 Leopard, Room 902
Corpus Christi, TX 78401
(361) 888-0463
Fax: (361) 888-3671
Contact via Email

General Contact for Nueces
901 Leopard, Room 303
Corpus Christi, TX 78401
(361) 888-0444
Fax: (361) 888-0445
Website
Contact via Email

 

The story follows:

Judge has harsh words for Mom before sentencing her for spanking her kid
Rosalina Gonzales had pleaded guilty to a felony charge of injury to a child for what prosecutors had described as a “pretty simple, straightforward spanking case.” They noted she didn’t use a belt or leave any bruises, just some red marks.

CORPUS CHRISTI, Texas (CBS) — A judge in Corpus Christi, Texas had some harsh words for a mother charged with spanking her own child before sentencing her to probation.

“You don’t spank children today,” said Judge Jose Longoria. “In the old days, maybe we got spanked, but there was a different quarrel. You don’t spank children.”

Rosalina Gonzales had pleaded guilty to a felony charge of injury to a child for what prosecutors had described as a “pretty simple, straightforward spanking case.” They noted she didn’t use a belt or leave any bruises, just some red marks.

As part of the plea deal, Gonzales will serve five years probation, during which time she’ll have to take parenting classes, follow CPS guidelines, and make a $50 payment to the Children’s Advocacy Center.

She was arrested back in December after the child’s paternal grandmother noticed red marks on the child’s rear end. The grandmother took the girl, who was two years-old at the time, to the hospital to be checked out.

Gonzales who doesn’t have custody of the child or her other two children, is trying to get them back, but until CPS feels she is ready the kids are living with their paternal grandmother.

 

Judge José Longoria sentences mom for spanking her child.

This story, out of Corpus Christi, Texas, has gotten fairly decent attention, albeit has been misrepresented in a number of ways. Some of the headlines state the judge “convicted the mother” of spanking her child, when in-fact she pleaded guilty. The judge merely passed sentence. That said, the comments made by Judge Jose Longoria speak to an unreasonable and despotic man who is very fit to wear the dress and bang the gavel of just-us. I will not attempt to raise the judiciary to some level of respect of nobility by stating that such acts are beyond its imagination since this type of conduct is exactly what the judiciary was created for. Longoria merely did what the people allowed him to do by their either electing or otherwise supporting him. It is like blaming a wolf for devouring a sheep when it was yourselves who placed the wolf in the barnyard.

As I stated in posts to the story, here is the lesson taught by the State. They will teach you that you have no interest in your children other than what they give you. They will teach your children that they will find safety and security in us; and if, upon reaching an age which they determine is reasonable, will beat, torture, or jail your children for their disobedience. Parents are hereby declared, impotent and the State omnipotent. For whatever reason, Mrs. Gonzales pleaded guilty to the charges. She should have demanded a jury trial because as the prosecutor even admitted, there is no clear law that criminalizes the spanking of one’s own child.  Every now and then the government will bring absurd charges against people they believe sufficiently ignorant or intimidated as a litmus test for their arrogance. No longer does the law have to rely upon the written word where acts and prohibitions are clearly defined, they now resort to presumption and the arbitrary edicts of judges.

Benches throughout this country are polluted with men and women of such villainy and there is but little recourse but to either not avail yourself to their unjust system or know how to defend yourself. Short of someone sufficiently outraged and indignant at the abuse which oozes from their gavel withdrawing their allegiance to this system of abuse, I can see a time where solitary individuals will resort to skulking into a judge’s residence and spiriting them from the comfort and safety of their bed to be tortured or dismembered as a statement of exasperation and saturation.

Meanwhile, men such as Jose Longoria will continue to exploit ignorance and exercise tyranny over the timid and weak. He believes parents are not within their rights to discipline their own children by spanking, but I would dare say that when that child fails to submit to the will of the State, he would have nothing to say about police either Tasering, pepper spraying, cuffing, or beating that same child should it fall from the grace of one of the State’s agents. Such men are of the lowest sort and should be dealt with accordingly.

If you wish to reach out to Judge Longoria, here is information you may use on expressing whatever your opinion, hopefully that of outrage.

José Longoria (D)
State District Judge (Nueces)

Residential Information

JOSE  LONGORIA

5050 GREENBRIAR

CORPUS CHRISTI, TX 78413

(361) 992-2267

Entered Office: 01-01-2001

Term Ends: 12-31-2012
District: 214
General Information
Profession: Judge
Home Town: Corpus Christi
Birthdate: 03-02-1943
Contact and Phone Numbers
901 Leopard, Room 902
Corpus Christi, TX 78401
(361) 888-0463
Fax: (361) 888-3671
Contact via Email

General Contact for Nueces
901 Leopard, Room 303
Corpus Christi, TX 78401
(361) 888-0444
Fax: (361) 888-0445
Website
Contact via Email

 

The story follows:

Judge has harsh words for Mom before sentencing her for spanking her kid
Rosalina Gonzales had pleaded guilty to a felony charge of injury to a child for what prosecutors had described as a “pretty simple, straightforward spanking case.” They noted she didn’t use a belt or leave any bruises, just some red marks.

CORPUS CHRISTI, Texas (CBS) — A judge in Corpus Christi, Texas had some harsh words for a mother charged with spanking her own child before sentencing her to probation.

“You don’t spank children today,” said Judge Jose Longoria. “In the old days, maybe we got spanked, but there was a different quarrel. You don’t spank children.”

Rosalina Gonzales had pleaded guilty to a felony charge of injury to a child for what prosecutors had described as a “pretty simple, straightforward spanking case.” They noted she didn’t use a belt or leave any bruises, just some red marks.

As part of the plea deal, Gonzales will serve five years probation, during which time she’ll have to take parenting classes, follow CPS guidelines, and make a $50 payment to the Children’s Advocacy Center.

She was arrested back in December after the child’s paternal grandmother noticed red marks on the child’s rear end. The grandmother took the girl, who was two years-old at the time, to the hospital to be checked out.

Gonzales who doesn’t have custody of the child or her other two children, is trying to get them back, but until CPS feels she is ready the kids are living with their paternal grandmother.

 

People v. Love 393 Ill.App.3d 196, 911 N.E.2d 1015, 331 Ill.Dec. 785

Appellate Court of Illinois,

Third District.

The PEOPLE of the State of Illinois, Plaintiff-Appellant,

v.

Courtney M. LOVE, Defendant-Appellee.

No. 3-08-0518.

June 3, 2009.

As Modified Special Concurrence July 7, 2009.

 

Background: Defendant was charged with driving under the influence of alcohol (DUI). The Circuit Court for the 12th Judicial Circuit, Will County, James E. Egan, J., granted defendant’s motion to dismiss, and found that dismissal was with prejudice when State refiled DUI charge. State appealed.

Holding: The Appellate Court, McDade, J., held that dismissal of DUI charge due to officer’s failure to schedule defendant’s first appearance within 60 days of her arrest did not bar State from refiling DUI charge.

Reversed and remanded.

Wright, J., specially concurred and filed opinion.

**1016 Terry A. Mertel, Deputy Director, State’s Attorneys Appellate Prosecutor, Robert M. Hansen (argued), State’s Attorneys Appellate Prosecutor, Ottawa, IL, James Glasgow, State’s Attorney, Joliet, IL, for Appellant.

Ted P. Hammel (argued), Sarah M. Vahey, Brumund, Jacobs, Hammel, Davidson & Andreano, LLC, Joliet, IL, for Appellee.

Justice McDADE delivered the opinion of the court:

*197 ***786 Defendant, Courtney Love, was charged by Illinois citation and complaint (citation) with driving under the influence of alcohol (DUI) (625 ILCS 5/11-501 (a) (West 2006)). Defendant moved to dismiss the charge on the ground that the State failed to comply with Supreme Court Rule 504 (166 Ill.2d R. 504). The trial court granted defendant’s motion. On appeal, the State argues that the trial court’s dismissal was not a disposition on the merits barring further prosecution. We reverse and remand for further proceedings.

FACTS

On November 10, 2007, defendant was charged by citation with DUI. The citation set defendant’s appearance date for January 18, 2008. On January 14, 2008, defendant filed a motion to dismiss which alleged that her first appearance date 69 days after her arrest violated Rule 504. Along with her motion to dismiss, defendant also filed a demand for a jury trial pursuant to Supreme Court Rule 505 (166 Ill.2d R. 505) and a demand for a speedy trial pursuant to section 103-5 of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-5 (West 2006)).

On January 18, 2008, the parties appeared in court. Neither party specifically announced ready for trial. The State requested a hearing date on defendant’s motion to dismiss and the matter was scheduled to be heard on March 14, 2008. Following argument, the trial court granted***787 **1017 defendant’s motion, specifically holding that the dismissal was without prejudice.

On April 2, 2008, the State filed the information at issue charging defendant with the same DUI offense that had been dismissed. Defendant subsequently filed another motion to dismiss pursuant to Rule 504 alleging that the order dated March 14, 2008, was a dismissal on the merits and should have been with prejudice. Upon hearing argument, the trial court held that its earlier dismissal without *198 prejudice was a “mischoice of words” and that this misstatement did not give the State the right to refile the DUI charge. The court reasoned that regardless of whether the dismissal was with or without prejudice the fact remained that the initial appearance date was improperly set for 69 days after defendant’s arrest. Thus, the court granted defendant’s motion to dismiss. The State appeals.

ANALYSIS

The sole question before us is whether a dismissal of a DUI charge on the ground that the defendant’s first appearance date was more than 60 days from the arrest bars the State from refiling the DUI charge. The State argues that the instant dismissal was not a disposition on the merits contemplated by Rule 504 and thus does not bar further prosecution. In response, defendant calls our attention to the fact that she filed a demand for a jury trial and alleges that she was ready to proceed for trial on January 18, 2008. Thus, defendant contends that the State failed to properly prosecute its case. The arguments made by the parties present questions of pure law. Accordingly, we review this matter de novo. People v. McCarty, 223 Ill.2d 109, 148, 306 Ill.Dec. 570, 858 N.E.2d 15, 39 (2006).

We begin our analysis with a review of Rule 504. Rule 504 applies to all traffic offenses defined by Supreme Court Rule 501. Rule 504, entitled “Appearance Date” provides:

“The date set by the arresting officer or the clerk of the circuit court for an accused’s first appearance in court shall not be less than 14 days but within 60 days after the date of the arrest, whenever practicable. It is the policy of this court that, if the arresting agency has been exempted from the requirements of Rule 505, an accused who appears and pleads ‘not guilty’ to an alleged traffic or conservation offense punishable by fine only should be granted a trial on the merits on the appearance date or, if the accused demands a trial by jury, within a reasonable time thereafter. A failure to appear on the first appearance date by an arresting officer shall, in and of itself, not normally be considered good cause for a continuance.” 166 Ill.2d R. 504.

We have previously examined the question of whether an officer’s failure to set a date for an accused’s first appearance within 14 to 60 days warrants dismissal of a DUI charge. In People v. Walter, 335 Ill.App.3d 171, 269 Ill.Dec. 116, 779 N.E.2d 1151 (2002), the defendant was arrested in December 2001 for DUI and issued a uniform citation and complaint requiring him to appear in court on January 23, 2001. On February 15, 2002, the defendant filed a motion to dismiss based on the officer’s failure to set a date for defendant’s first court appearance pursuant to Rule 504. The trial court granted the defendant’s motion to dismiss *199 and the State appealed. On appeal, the State argued that the trial court abused its discretion because the time limitation of Rule 504 is directory and because defendant was not prejudiced by the obvious scrivener’s error. In rejecting the State’s argument, we stated:

**1018 ***788Supreme Court Rule 504 governs the setting of a defendant’s first appearance date in traffic cases. The rule provides that ‘ [t]he date set by the arresting officer * * * for an accused’s first appearance in court shall be not less than 14 days but within 60 days after the date of the arrest whenever practicable.’ [Citation.] Rule 504‘s time limitation is directory, not mandatory. [Citation.] Therefore, if the arresting officer sets a first appearance date outside the period provided by the rule, the trial court is not required to dismiss the charge for lack of jurisdiction. [Citation.] However, the State bears the burden in such situations of establishing that it was impracticable to comply with the rule’s time limitation. [Citation.]

In determining if it was practicable to set the first appearance date within the prescribed 14-to 60-day period, neither the arresting officer’s intent nor prejudice to the defendant is relevant. [Citation.] If the trial court determines that it was not impracticable to set the date within the rule’s time limitation, the court’s dismissal of charges will not be disturbed on review absent an abuse of discretion. [Citation.]

* * *

The State’s arguments that the officers’ errors were unintended and ‘technical’ [citation] and that the limitation period is directory, not mandatory, miss the point. The plain language of the rule provides that the setting of a first appearance date outside the prescribed period of Rule 504 is excusable only upon evidence of the impracticability of setting the date within the prescribed period. [Citation.] In this case, the State presented no such evidence. We further note the lack of any showing that a correction of the erroneous court date could not have been initiated by the State prior to February 13, 2002, when the period prescribed by Rule 504 expired. From the record on review, it appears that the prosecution took no action in the cause until after defendant filed his motion to dismiss.

In sum, the State does not dispute that it was ‘not impracticable’ for the State to set a first appearance date for defendant within the 14-to 60-day [period] of Rule 504. Accordingly, the trial court’s order of dismissal was not an abuse of its discretion. [Citation.]” Walter, 335 Ill.App.3d at 173-74, 269 Ill.Dec. 116, 779 N.E.2d at 1152-53.

In the present case, the State does not dispute that the setting of defendant’s first appearance date 69 days after his arrest violated *200 Rule 504. The State failed to present any evidence of the impracticability of setting the date within Rule 504‘s prescribed period at the hearing on defendant’s motion to dismiss. Thus, our holding in Walter clearly illustrates that the setting of defendant’s first appearance date 69 days after his arrest violated Rule 504 and thus the trial court’s order of dismissal was not an abuse of discretion. See Walter, 335 Ill.App.3d at 173-74, 269 Ill.Dec. 116, 779 N.E.2d at 1152-53. Our inquiry, however, does not end there. The question remains whether the trial court’s dismissal bars the State from refiling the DUI charge.

The trial court ultimately held that the State did not have the right to refile the DUI charge because the fact remained that the initial appearance date was improperly set for 69 days after defendant’s arrest. In support of its assertion that the instant dismissal was not a disposition on the merits contemplated by Rule 504 and thus does not bar further prosecution, the State cites our decision in People v. Rumler, 161 Ill.App.3d 244, 113 Ill.Dec. 15, 514 N.E.2d 797 (1987). The defendant in **1019 ***789 Rumler was charged by uniform citations with DUI. The defendant moved to dismiss the citations on the ground that his first appearance date 13 days after his arrest violated Rule 504. The trial court found insufficient evidence that a proper appearance date was impracticable and thus granted the defendant’s motion. At that time, the State announced that informations charging the defendant with the same offenses as the previous citations had been filed. The defendant filed a subsequent motion to dismiss the information alleging that the trial court’s previous dismissal order precluded the State from proceeding on the information. Upon hearing argument, the trial court denied the defendant’s motion to dismiss.

On appeal, the defendant argued that the previous dismissal of the citations was a decision on the merit s, pursuant to Rule 504, that barred further prosecution. We examined the defendant’s claims under a previous version of Rule 504, which provided: (1) that whenever practicable, an accused’s appearance date shall be neither less than 14 nor more than 49 days from the arrest; and (2) that an accused who appears and pleads not guilty to an alleged traffic offense should be granted a trial on the merits on the appearance date set by the arresting officer. Rumler, 161 Ill.App.3d at 246, 113 Ill.Dec. 15, 514 N.E.2d at 798, citing 107 Ill.2d R. 504. In affirming the trial court’s denial of defendant’s motion to dismiss we stated:

“An accused who appears and pleads not guilty to an alleged traffic offense, if ready for trial, is entitled to a trial or a disposition on the merits on the first appearance date or the trial date set according to Rule 505. [Citation.] Dismissal for the State’s failure to proceed is, therefore, a final disposition on the merits that bars *201 further proceedings. [Citation.] The State may not then circumvent Rules 504 and 505 by subsequently filing criminal complaints. [Citation.] To allow such proceedings would violate the purpose of Rule 504 by repeatedly forcing defendants into court on the same charge. [Citation.]

We find that the instant dismissal was not a disposition on the merits contemplated by Rule 504. The defendant neither pleaded nor answered ready for trial on his first appearance date. He only objected and announced his intent to move to dismiss due to the improper appearance date. Since the defendant neither sought a disposition on the merits nor subsequently filed a Rule 505 notice of intent to plead not guilty and/or demand a jury trial, the State neither refused to proceed nor denied the defendant a timely trial. A special and limited appearance does not meet the requirements of either Rule 504 or Rule 505. Hence, the dismissal of the defendant’s citations was not a disposition on the merits that barred further prosecution.” Rumler, 161 Ill.App.3d at 246, 113 Ill.Dec. 15, 514 N.E.2d at 798-99.

While the previous version of Rule 504 provided that an accused who appears and pleads not guilty to an alleged traffic offense should be granted a trial on the merits on the appearance date set by the arresting officer, the current version of Rule 504 conditions this policy on two factors: (1) that the offense be one punishable by a fine only, and (2) that the “arresting agency” be exempt from Rule 505. 166 Ill.2d R. 504. Our supreme court in People v. Norris, 214 Ill.2d 92, 291 Ill.Dec. 629, 824 N.E.2d 205 (2005), reaffirmed this policy by “stress[ing] that nowhere in either Rule 504 or Rule 505 is a trial on the merits absolutely guaranteed on the first appearance date.” Norris, 214 Ill.2d at 102, 291 Ill.Dec. 629, 824 N.E.2d at 212. The Norris court explained that “Rules ***790 **1020 504 and 505[are] the mere ‘policy’ of [the] court and not * * * inexorable command[s]. Both rules allow for the trial judge to have complete discretion over what should occur in a particular case.” People v. Norris, 214 Ill.2d at 103, 291 Ill.Dec. 629, 824 N.E.2d at 212. Consequently, the Norris court concluded that the State is allowed to nol-pros misdemeanor traffic offenses upon being denied a motion for continuance. People v. Norris, 214 Ill.2d at 104, 291 Ill.Dec. 629, 824 N.E.2d at 213. While the court did not examine the question of whether Rule 504 or 505 bars the refiling of the charges, the court did hold that “when a nolle prosequi is entered before jeopardy attaches, the State is entitled to refile the charges against the defendant.” People v. Norris, 214 Ill.2d at 104, 291 Ill.Dec. 629, 824 N.E.2d at 213.

In the present case, defendant contends that she was ready to proceed to trial on her first appearance date and that the State’s request for a hearing on her motion to dismiss constitutes a failure to *202 prosecute its case. This argument, however, ignores the fact that defendant was not guaranteed a trial on the merits on her first appearance date under Rule 504 because a DUI is not punishable by fine only. See 166 Ill.2d R. 504; Norris, 214 Ill.2d at 102, 291 Ill.Dec. 629, 824 N.E.2d at 212. Instead, a first DUI is a Class A misdemeanor (625 ILCS 5/11-501(b-2) (West 2006)) punishable by up to a year in jail (730 ILCS 5/5-8-3 (West 2006)). While defendant calls our attention to the fact that she filed a demand for a jury trial and a demand for a speedy trial as evidence that she was prepared to proceed to trial, this alone does not guarantee defendant a trial on the merits on her first appearance date. Defendant filed her demand for a jury trial pursuant to Rule 505. “Rule 505 addresses setting an appearance date different from that initially required under Rule 504.” People v. Norris, 214 Ill.2d at 99-100, 291 Ill.Dec. 629, 824 N.E.2d at 210. With respect to trials, Rule 505 requires that if a defendant demands a jury trial, “the trial shall be scheduled within a reasonable period.” 166 Ill.2d R. 505. Specifically, Rule 505 states, in pertinent part:

“Upon timely receipt of notice that the accused intends to plead ‘not guilty,’ the clerk shall set a new appearance date not less than 7 days nor more than 60 days after the original appearance date set by the arresting officer or the clerk of the circuit court, and notify all parties of the new date and the time for appearance. If the accused demands a trial by jury, the trial shall be scheduled within a reasonable period.” 166 Ill.2d R. 505.

In interpreting Rule 505, the Norris court stated:

Rule 505 merely provides the procedure by which traffic defendants can schedule alternative first appearance dates. If that procedure is not followed, a defendant may be subjected to multiple appearances. As for trials by jury, the rule directs that such trials shall be scheduled within a reasonable period of time. The scheduling of the jury trial itself is a matter left to the discretion of the trial judge. The rule provides that this discretion may be limited by the choice of a defendant who files a speedy-trial demand, which means that the State must bring him or her to trial within 120 days if the defendant is in custody or within 160 days if the defendant is not in custody.” Norris, 214 Ill.2d at 101, 291 Ill.Dec. 629, 824 N.E.2d at 211.

In light of the above authority, defendant was not guaranteed a trial on the merits on her first appearance date. Whether or not defendant was actually ready for trial does not change this fact. ***791 **1021 Thus, the State’s request for a hearing on defendant’s motion to dismiss did not deprive defendant of a timely trial. Moreover, we do not view the State’s actions as constituting a failure to prosecute its case. While defendant did file a demand for a jury trial pursuant to Rule 505, *203 defendant also simultaneously filed a motion to dismiss. The fact that the State requested a hearing on defendant’s motion prior to trial does not support defendant’s contention that the State refused to proceed or denied defendant a timely trial. Therefore, we find that the trial court’s dismissal of the DUI charge was not a disposition on the merits that barred further prosecution.

In coming to this conclusion, we reject defendant’s reliance upon People v. Nelson, 18 Ill.App.3d 628, 310 N.E.2d 174 (1974). Nelson was decided under the previous version of Rule 504, which provided that an accused who appears and pleads not guilty to an alleged traffic offense should be granted a trial on the merits on the appearance date set by the arresting officer. In Nelson, we found that the objective of the supreme court rules, as expressly stated in Rule 504 at the time (73 Ill.2d R. 504), was to provide a disposition on the merits. Nelson, 18 Ill.App.3d at 630, 310 N.E.2d at 177. Consequently, we held that “a mere dismissal of * * * [traffic violations], with the right of the State to reinstate them at some time subsequently, would not be a disposition ‘on the merit s’ within the meaning of Rule 504. Such a disposition would be contrary to the public policy expressed in Supreme Court Rules.” Nelson, 18 Ill.App.3d at 630, 310 N.E.2d at 177. Our reasoning in Nelson is no longer applicable in light of the current version of Rule 504 and the supreme court’s holding in Norris that neither Rule 504 nor Rule 505 guarantees an accused a trial on the merits on the first appearance date. 166 Ill.2d Rs. 504, 505; People v. Norris, 214 Ill.2d at 102, 291 Ill.Dec. 629, 824 N.E.2d at 212.

While we believe that the authority discussed above requires us to find that the trial court’s dismissal was not a disposition on the merits that barred further prosecution, we would be remiss if we did not point out that our disposition fails to give full effect to the principle of strict compliance with the mandatory nature of the supreme court rules. Our supreme court has expressly stated on numerous occasions that its rules “ ‘are not aspirational. They are not suggestions. They have the force of law, and the presumption must be that they will be obeyed and enforced as written.’ ” Rodriguez v. Sheriff’s Merit Comm’n, 218 Ill.2d 342, 353, 300 Ill.Dec. 121, 843 N.E.2d 379, 385 (2006), quoting Roth v. Illinois Farmers Insurance Co., 202 Ill.2d 490, 494, 270 Ill.Dec. 18, 782 N.E.2d 212, 215 (2002), quoting Bright v. Dicke, 166 Ill.2d 204, 210, 209 Ill.Dec. 735, 652 N.E.2d 275, 277-78 (1995). The present case presents us with a clear violation of Rule 504. Specifically, defendant’s first appearance date was scheduled more than 60 days from her arrest and the State failed to present any evidence that a proper appearance date was impracticable. Seeing that the appropriate time period under Rule 504 has expired, there simply is no way to comply with the letter of Rule 504. *204 Thus, it would appear dismissal with prejudice is the only remedy appropriate if we were to give full effect to the principle of strict compliance with the mandatory nature of the supreme court rules. However, the supreme court has informed us that Rule 504‘s time limitation is directory, not mandatory. Village of Park Forest v. Fagan, 64 Ill.2d 264, 268, 1 Ill.Dec. 59, 356 N.E.2d 59, 62 (1976). Moreover, the Norris court held that “Rules 504 and 505[are] the mere ‘policy’ of [the] court and not * * * inexorable command[s].” ***792**1022People v. Norris, 214 Ill.2d at 103, 291 Ill.Dec. 629,   824 N.E.2d at 212. While we are troubled by the fact that our disposition fails to give full effect to the principle of strict compliance with the mandatory nature of the supreme court rules, we believe the authority discussed above requires us to reverse the judgment of the trial court.

For the foregoing reasons, we reverse the judgment of the trial court and remand for further proceedings.

Reversed and remanded.

HOLDRIDGE, J., concurs.

WRIGHT, J., specially concurs.

MODIFIED SPECIAL CONCUR

Justice WRIGHT specially concurring:

I specially concur because I believe that the trial court was without any authority to reverse its ruling more than 30 days after the entry of the March 14, 2008, order dismissing the case without prejudice. I would have reversed the trial court’s June 2, 2008, ruling on this basis alone.

The State re-filed the charges, as authorized by the court’s March 14, 2008, order. Thereafter, defendant filed a second motion to dismiss based on the same violation of Supreme Court Rule 504. However, this time the court dismissed the State’s case with prejudice on June 2, 2008. The basis for the trial court’s change of heart was an earlier “mischoice of words.”

I believe the trial court was without authority to revisit, reopen, or even correct its own ruling regarding the State’s compliance with Supreme Court Rule 504 (166 Ill.2d R. 504), an issue previously adjudicated. See People v. Williams, 138 Ill.2d 377, 390, 150 Ill.Dec. 498, 563 N.E.2d 385 (1990). I specially concur for the purpose of making it clear that I cannot condone the court’s decision to substantially modify its order, more than 30 days after the “mischoice of words,” without at the very least, an agreement by the parties allowing the court to correct its previous order.

That said, I find the majority’s analysis is thorough and well written. Thus, without reservation, I agree with the majority’s decision that the dismissal of the State’s complaint without prejudice was the *205 appropriate ruling based on a violation of Supreme Court Rule 504 (166 Ill.2d R. 504) as contained in this record and accordingly, the State is not barred from further prosecuting defendant. However, unlike the majority, I do not believe that this outcome fails to strictly apply the Supreme Court Rules when considered in light of the cases decided by our supreme court interpreting their own Supreme Court Rule 504.

For these reasons, I specially concur.

Ill.App. 3 Dist.,2009.

People v. Love

393 Ill.App.3d 196, 911 N.E.2d 1015, 331 Ill.Dec. 785

END OF DOCUMENT

People v. Brookbank 79 Ill.App.3d 412, 398 N.E.2d 632, 34 Ill.Dec. 809

Appellate Court of Illinois, Second District.

PEOPLE of the State of Illinois, Plaintiff-Appellant,

v.

Roger E. BROOKBANK, Defendant-Appellee.

No. 79-134.

Dec. 7, 1979.

The State appealed from judgment of the Circuit Court, DuPage County, Carl F. J. Henninger, J., dismissing traffic charges against defendant due to failure of arresting officer to appear on continued trial date. The Appellate Court, Seidenfeld, J., held that failure of defendant to comply with rule requiring notification of clerk of court prior to scheduled appearance date if he intended to plead not guilty or demand a trial by jury resulted in waiver of his right to trial on the merits on his appearance date, and thus the State was not barred from refiling of the charges.

Reversed and remanded with directions.

If defendant had complied with provisions of rule requiring him to notify clerk of court prior to scheduled appearance date if he intended to plead not guilty or demand trial by jury and thus had not waived his right under rule requiring trial on the merits on his appearance date, then nolle pros filed by the State on the appearance date would have barred refiling of the charges. Supreme Court Rules, rules 504, 505, S.H.A. ch. 110A, §§ 504, 505.

*413 **633 ***810 J. Michael Fitzsimmons, State’s Atty., Robert L. Thompson, Asst. State’s Atty., Wheaton, for plaintiff-appellant.

John W. Werner, Oak Brook, for defendant-appellee.

SEIDENFELD, Justice:

The State appeals from a judgment which dismissed traffic charges against the defendant, Roger E. Brookbank, because of the failure of the arresting officer to appear on a continued trial date. It contends that the defendant waived the provisions of Supreme Court Rule 504 when he demanded a jury trial and later withdrew that demand without complying with Supreme Court Rule 505. Ill.Rev.Stat.1977, ch. 110A, pars. 504, 505.

Defendant was charged with various Illinois Vehicle Code violations by Uniform Illinois Citations and Complaints and was directed to appear to answer those charges on July 27, 1978. On that date defendant appeared in court with counsel and entered pleas of not guilty to all of the charges and demanded trial by jury. The court set August 4th as the date for trial and transferred the case for jury trial from its Branch Court to the Circuit Court in Wheaton. Defendant’s counsel appeared in Wheaton on August 4, 1978, withdrew the demand for jury trial, and the trial was set before the court for September 8, 1978.

On September 8th counsel for the defendant advised the court that defendant was prepared for trial. The State requested a continuance *414 because of the absence of what was alleged as a material witness and because it had “called off” its witnesses. The motion for continuance was denied whereupon the State moved to Nolle pros. The motion was granted by the court without objection by the defendant’s counsel.

Later, identical charges were filed against the defendant requiring the defendant’s appearance for October 3, 1978. On that date the defendant appeared with counsel and filed a motion to dismiss based on Supreme Court Rules 504 and 505 which the court granted. The State filed a motion to reconsider which was denied and resulted in this appeal.

In substance, Supreme Court Rule 504 sets forth the policy that when one appears and pleads not guilty to an alleged traffic offense he should be granted a trial on the merits on the appearance date set by the arresting officer; and advises that except as provided in Rule 505 the arresting officer’s failure to appear on the date set shall **634 ***811 not normally be considered good cause for a continuance. Supreme Court Rule 505 provides in substance that the defendant must notify the clerk of the court prior to the scheduled appearance date if he intends to plead not guilty or demand trial by jury. On receipt of the notice that the defendant intends to plead not guilty a new appearance date shall be set not less than seven days nor more than forty-nine days after the original appearance date set by the arresting officers. And if the defendant demands a trial by jury the normal time limits provided in Section 103-5 of the Criminal Code are applicable. Ill.Rev.Stat.1975, ch. 38, par. 103-5.

In question is whether the defendant waived his rights under Supreme Court Rule 504 when he demanded a jury trial and later withdrew the demand without complying with the provisions of Rule 505.

[1] Stated in another way the basic issue is whether Rule 504 gives the defendant a continuing right to demand trial at every court appearance and to have the charges dismissed on the merits unless the State can show highly extenuating circumstances as grounds for a continuance; or whether the policy of the rule applies only to the initial appearance date. Defendant did not notify the clerk pursuant to Rule 505 prior to the initial appearance date on July 27th although he did plead not guilty and demand a jury trial. Defendant does not maintain that failure to grant him a trial on the merits on July 27th was error and, of course, could not because he did not comply with Rule 505. (See, People v. Ware, 41 Ill.App.3d 902, 905, 355 N.E.2d 142 (1976).) Instead he argues that the State’s failure to try him on September 8th, his third court appearance on the charges, must necessarily result in a dismissal on the merits and preclude any further prosecution on those charges as the trial court held. We cannot agree.

Nothing in the language of Rule 504 indicates that it was intended to have effect beyond the initial appearance date. Its sole purpose appears to be to grant defendants the right to have their cases disposed of on the first *415 court date, absent unusual circumstances, if they so desire. However, this right has the accompanying responsibility set forth in Rule 505 which requires the defendant to notify the clerk of an intention to plead not guilty or to demand a trial by jury.

People v. Nelson, 18 Ill.App.3d 628, 631, 310 N.E.2d 174 (1974), relied upon by the defendant, does not suggest a different result. In Nelson, although the Rule 505 notice was filed late, it was filed and was accepted by the court with the result that the date set was held to be the initial appearance as contemplated by Rules 504 and 505. The absence of the arresting officer was found proper grounds for the dismissal under the particular circumstances. Here, of course, defendant at no time filed notice pursuant to Rule 505.

We have consistently refused to extend Nelson beyond the particular facts there involved or to expand Rule 504 beyond its express terms and intent.   (See,   People v. Maher, 77 Ill.App.3d 488, page 492, 33 Ill.Dec. 1, page 4, 396 N.E.2d 77, page 80 (1979); People v. Claeys, 44 Ill.App.3d 83, 85, 2 Ill.Dec. 666, 357 N.E.2d 886 (1976); People v. Kenney, 39 Ill.App.3d 941, 943, 351 N.E.2d 574 (1976).) We also do not adopt the apparent reasoning of the courts in Nelson and in City of Belleville v. Watts, 61 Ill.App.3d 538, 18 Ill.Dec. 749, 378 N.E.2d 213 (1978), that the officer’s failure to appear is never grounds for a continuance or that the policy of giving defendants a trial on the initial appearance date is mandatory rather than directory. The statement in Rule 504 that non-appearance of the officer is not “normally” grounds for continuance connotes that in abnormal situations, such as the illness of the officer, or some emergency which the court may deem sufficient, a continuance may be granted.

[2] The conclusion we have reached disposes of a further contention made by the State that the trial court erred in dismissing the refiled charges after it granted its motion to Nolle pros. The defendant correctly argues that if he were entitled to a trial on the merits on September 8th the **635 ***812 Nolle pros entered then barred refiling of the charges. ( People v. Nelson, 18 Ill.App.3d at 632, 310 N.E.2d 174). However, since we have held that the defendant had lost his Rule 504 rights prior to the September 8th hearing the Nolle pros entered there clearly does not bar refiling the charges at a later date.   People v. Garcia, 7 Ill.App.3d 742, 747, 288 N.E.2d 637 (1972); People v. Bell, 74 Ill.App.3d 316, 30 Ill.Dec. 228, 392 N.E.2d 993 (1979).

The judgment is therefore reversed and the cause remanded with directions to vacate the dismissal and to proceed upon the charges filed by the State.

Reversed and Remanded with Directions.

LINDBERG and NASH, JJ., concur.

Ill.App. 2 Dist., 1979.

People v. Brookbank

79 Ill.App.3d 412, 398 N.E.2d 632, 34 Ill.Dec. 809

END OF DOCUMENT

People v. Novak 68 Ill.App.3d 453, 386 N.E.2d 459, 25 Ill.Dec. 188

Appellate Court of Illinois, First District, Third Division.

PEOPLE of the State of Illinois, Plaintiff-Appellant,

v.

Lawrence P. NOVAK, Defendant-Appellee.

No. 78-688.

Jan. 24, 1979.

A motion to dismiss a misdemeanor complaint signed by private citizen was granted by the Cook County Circuit Court, Francis P. Butler, J., and the People appealed. The Appellate Court, McGillicuddy, J., held that a rule providing that the date set by an arresting officer for accused’s appearance in court shall be not less than ten days but within 45 days after date of arrest, whenever practicable, does not apply where the arresting officer was not the complainant.

Reversed and remanded.

Dismissal on basis of rule stating that date set by arresting officer for accused’s appearance in court shall be not less than 10 days but within 45 days after date of arrest whenever practicable is final disposition on merits, and charge may not be refiled by prosecution, and where complainant, private citizen, did appear in court on court date and was willing to testify, trial court, believing that such rule was applicable, should have granted continuance rather than dismiss complaint. Supreme Court Rules, rule 504, S.H.A. ch. 110A, § 504.

*453 **460 ***189 Bernard Carey, State’s Atty., Lee T. Hettinger, Rimas F. Cernius and James M. Thunder, Asst. State’s Attys., Chicago, for plaintiff-appellant.

*454 McGILLICUDDY, Justice:

[1] This case concerns a misdemeanor complaint, signed by a private citizen, charging defendant Lawrence Novak with reckless driving.  (Ill.Rev.Stat., 1977, ch. 951/2, par. 11-503.) The defendant moved to dismiss the complaint pursuant to Supreme Court Rule 504. (Ill.Rev.Stat., 1977, ch. 110A, par. 504.) After argument, the trial court granted the motion.  The State appeals pursuant to Supreme Court Rule 604(a)(1) ( Ill.Rev.Stat., 1977, ch. 110A, par. 604(a)(1)), contending that the trial court erred in dismissing the charge and in denying the prosecution’s motion to reinstate the charge against the defendant, inasmuch as Rule 504 does not apply where a private citizen is the complainant.  The appellee has filed no brief in this matter, but we shall consider the merits of the State’s position.   First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.

On February 14, 1978, Frances Sugg, a private citizen signed the aforementioned **461 ***190 misdemeanor complaint as complainant. The complaint charged that on or about January 18, 1978, the defendant drove his truck in such a reckless manner that he forced the complainant “off the roadway and into a snowbank.” The complaint specified a court date of March 1, 1978. An arrest warrant for the defendant was issued on February 14, 1978. It was executed at approximately 8:00 p. m. on February 28, at which time the defendant posted bond and was informed that the court date in the matter was the next day.

On March 1, 1978, the defendant, represented by retained counsel, moved to dismiss the charge. The defense counsel argued that the arrest was a routine traffic arrest which occurred on February 28, 1978, and, therefore, Supreme Court Rule 504, which prohibits setting a court appearance date sooner than 10 days after the arrest, had been violated. The prosecution objected to this motion. However, the trial court dismissed the charge and released the defendant, and stated:

“You understand, Ms. Sugg, the State can refile the charges but the Supreme Court Rule says he would not be brought to court in less than ten days or more than forty-five days, whenever practicable.”

On March 17, 1978, the prosecution moved to reinstate the reckless driving charge on the basis that Supreme Court Rule 504 did not apply to the instant complaint. After hearing argument, the court noted that the complaint had a court date written on it, but stated that it did not know who set that date. The court also made the observation that the police waited almost a month from the time of the incident to have the warrant sworn and waited two more weeks to effect the arrest. The trial court then *455 denied the prosecution’s motion stating that the charge could be refiled. Notice of appeal was filed several days later.

[2] The State contends that Supreme Court Rule 504 does not apply where the arresting officer is not the complainant, and we agree. Rule 504 states:

“The date set by the arresting officer for an accused’s appearance in court shall be not less than 10 days but within 45 days after the date of the arrest, whenever practicable. It is the policy of this court that an accused who appears and pleads ‘not guilty’ to an alleged traffic or conservation offense should be granted a trial on the merits on the appearance date set by the arresting officer. Except as provided in Rule 505, an arresting officer’s failure to appear on that date, in and of itself, shall not normally be considered good cause for a continuance.” Ill.Rev.Stat., 1977, ch. 110A, par. 504.

[3][4] This court has held that the aforementioned rule applies to cases where the charge is a traffic or conservation offense and where the arresting officer is the complainant or at least the chief witness for the prosecution and has issued a uniform traffic citation. (See People v. Claeys (1976), 44 Ill.App.3d 83, 2 Ill.Dec. 666, 357 N.E.2d 886.) According to Rule 504, the arresting officer, in issuing such a traffic citation, would set an appearance date not less than 10 days nor more than 45 days from the arrest. The purpose of this rule is to ensure the efficient use of the police officers’ and defendant’s time. (See, Ill.Ann.Stat., ch. 110A, par. 504, Committee Comments at 11 (Smith-Hurd 1977).) However, in the present matter a private citizen was the complaining witness so that the arresting officer’s appearance was not necessary at trial and a criminal misdemeanor complaint, not a uniform traffic citation and complaint, was issued. Moreover, there is nothing in the record to indicate that any police officer, including the arresting officer, was going to be a witness for the prosecution. Accordingly, we feel that the complaint should have been treated like any criminal complaint to which Supreme Court Rule 504 would not be applicable. See People v. Claeys.

[5][6] In further support of this conclusion, we must point out that the defendant’s arrest did not occur at the time of the making of the complaint, as would be the case in a typical traffic offense situation. **462 ***191 Rather, the arrest was effected pursuant to an arrest warrant issued upon a complaint. (Ill.Rev.Stat., 1977, ch. 38, par. 107-2(a).) We presume that the court date, which appeared on the complaint, was set at the time the complaint was sworn since Supreme Court Rule 551(b) requires the setting of a court date for violation of certain traffic offenses, including reckless driving. (Ill.Rev.Stat., 1977, ch. 110A, par. 551(b).) However, we are of the opinion that the arresting officer was not restricted by the court *456 date of March 1, 1978, because an arrest warrant permits an arrest to be made “on any day and at any time of the day or night.” (Ill.Rev.Stat., 1977, ch. 38, par. 107-5(b).) Therefore, the arresting officer was not bound to effect the arrest more than 10 days prior to the date set for trial of the matter.

[7] The trial court erred in stating that the prosecution could refile the charge. A dismissal on the basis of Supreme Court Rule 504 is a final disposition on the merits. ( People v. Nelson (1974), 18 Ill.App.3d 628, 310 N.E.2d 174.) In view of this precedent and since the complainant did appear in court on March 1, and was willing to testify, we feel that the trial court should have granted a continuance, rather than dismiss the complaint.

Accordingly, the judgment of the Circuit Court of Cook County is reversed, and the cause is remanded to the trial court for further proceedings consistent with the views expressed herein.

Reversed and remanded.

SIMON, P. J., and RIZZI, J., concur.

Ill.App. 1 Dist., 1979.

People v. Novak

68 Ill.App.3d 453, 386 N.E.2d 459, 25 Ill.Dec. 188

END OF DOCUMENT