Memorandum of law regarding private individual making criminal complaint and the former office of magistrate in Illinois.

MEMORANDUM OF LAW

QUESTIONS PRESENTED

  1. Can a private individual who alleges charges of a criminal offense present those charges directly to a court without the aid or intervention of a police agency or State’s Attorney?
  2. Where the word “magistrate” was formerly used by Courts, as now there are no officers acting under that title proper, what has become of that office and the duties formerly exercised thereof?

BRIEF ANSWER

Yes, a private individual may bring charges alleging a criminal offense directly to a court without the aid or intervention of a police agency or State’s Attorney for the purpose of having the accused arrested to answer the charges.

The office of magistrate was reorganized under the 1970 Constitution of the State of Illinois to be Associate Judge as a reorganization scheme which did not dispense with the office, but merely renamed it.

STATEMENT OF FACTS

On February 17, 2009, the Petitioner, Mark McCoy, was detained and beaten by police officers acting for the City of Fairview Heights, Illinois, subsequent to a traffic stop. The Petitioner was arrested, confined for a period of time, and released after receiving traffic citations and an unverified complaint. During the time, beginning with the traffic stop and ending with his release, McCoy was victim of and/or witness to violations of law found in Illinois statutes, committed by the arresting officers, Joshua Alemond and Aaron Nyman.

The Petitioner was afforded a probable cause hearing before the Honorable Randall Kelly of the Twenty-First Judicial Circuit of St. Clair County, Illinois, per Petitioner’s challenge to the officer’s allegation of any probable cause to affect a traffic stop. Subsequently, all charges were dismissed by the Honorable Randall Kelly, save for one charge being dismissed on State’s motion.

Petitioner has persisted in attempting to bring charges against the officers, Joshua Alemond and Aaron Nyman, for violations of law suffered by or witnessed to by the Petitioner. Acting on information imparted to the Petitioner by the Honorable Randall Kelly, which Petitioner believes was not entirely accurate, verified criminal complaints were tendered to the Clerk of the Circuit Court of St. Clair County by delivering to the clerks the original complaints with notary seals and wet-ink signatures, which are found in the file for case 10-MR-212. The substance of the complaints are in conformance with the requirements set forth in Illinois Statutes 725 ILCS 5/111‑3.

At the time of this writing, Petitioner has attempted to present his complaints, or has inquired as to the procedure for presentment, with some St. Clair County Associate Judges, then Clerk of the Circuit Court and now State’s Attorney Brendan Kelly, Chief Judge John Baricivec, and former St. Clair County State’s Attorney Robert Haida. These individuals have either ignored or refused to hear the Petitioner’s claims. Petitioner believes that he is permitted to bring these charges before a judge so that he may swear out his complaint against officers Alemond and Nyman.

As a result of the foregoing, Then Clerk of the Circuit Court Brendan Kelly personally received Petitioner’s complaints under the promise that they would be properly filed. As a result, Mr. Kelly filed the present Miscellaneous Remedy Case 10-MR-212 on behalf of the Petitioner, within which the original complaints are filed. 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. The only remaining issue at this time was whether there are any “magistrates”, or persons empowered to hear the Petitioner’s complaints and issue arrest warrants.

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.

DISCUSSION

Question 1. The issue before the court, as evidenced by the contents of this case file, is how to dispense with sworn criminal complaints charging violations of criminal law against two individuals. The complaints are sworn, or verified, by the complainant under oath and displaying a notarial seal.

Petitioner’s complaints conform to the statutory requirements for drafting a complaint. 725 ILCS 5/107‑9, and constitute a charge which is in writing and accuses persons with the commission of an offense. 725 ILCS 5/102 8 There is little doubt that what this Court has before it is written statements presented to a court accusing persons of commissions of offenses, which amount to a complaint which is verified, or sworn to under penalty of perjury, before persons authorized to administer oaths, as required. 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. A complaint, in writing and sworn to, is sufficient for the issuance of an arrest warrant. People v. United States Fidelity & Guaranty Co.,1925, 238 Ill.App. 112.

Before going further, we must ask this question. If the law provides for arrests, are there any who are exempt from arrests? Petitioner asserts that many believe police are exempt from arrests. The statutes provide some guidance in this respect.

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

I fail to find anywhere in that section an exemption for police officers. It does specifically mention sheriffs, but police officers are municipal or state employees and not officers of the court. The statute even alludes to sheriffs being not exempt if they are not attending court or going to and from court. This means that if a police officer commits a crime there is no apparent statutory or common law exception for their not being subject to arrest, or burdening the complainant with first approaching an administrative agency for redress.

This is not to say that Petitioner has not sought redress through the State’s Attorney, judges, or police agencies. Brendan Kelly, while serving as Circuit Clerk, has first-hand knowledge of Petitioner’s complaints. Robert Haida, serving as State’s Attorney, and John Baricevic, Chief Judge, both received notice of Petitioner’s intent to file said charges. Petitioner also approached Judge Vincent Lopinot in open court, only to be told by Lopinot that he would not hear the complaints. Upon contacting the Illinois State Police, Petitioner was told that he must contact the FBI for violations of his Civil Rights. When contacting the St. Clair County Sheriff’s office, Petitioner was told that he must contact the State Police. When approaching the State’s Attorney’s office directly, Petitioner was denied an opportunity to speak with then State’s Attorney Robert Haida, being told by the person greeting him at that office that, “The State’s Attorney works for the police.” Judge Randall Kelly did say that a private individual may bring charges against anyone through a complaint, but his direction mistakenly placed the onus on the Circuit Clerk for receiving and filing that complaint. In jurisdictions wherein the applicable statutes or rules permit a private citizen to institute criminal proceedings by complaining directly to a judicial officer or to the grand jury, the right of a private citizen to institute such proceedings independently of the prosecuting attorney is clear. 66 A.L.R.3d 732. Illinois Statutes do not distinguish who may present a complaint before a court, but they likewise do not preclude private individuals from making a complaint.

In seeking an arrest of an individual for the commission of an offense, which precedes any formal prosecution by the State, Illinois Statutes provide for the issuance of an arrest warrant upon compliant when such complaint is presented to a court charging that an offense has been committed. 725 ILCS 5/107-9 (a) When this requirement has been satisfied, the court “shall” examine upon oath or affirmation the complainant or any witnesses. Id. [Emphasis Added] A warrant is usually issued by a judicial officer, justice of the peace, or magistrate upon a complaint made under oath. Kindred v. Stitt 51 Ill. 401, 1869 WL 5352 (Ill.) Illinois has likewise identified a duty owed by citizens to appear before a magistrate with knowledge of a crime so they may make a complaint for the purposes of having the accused arrested and held to answer. Enright v. Gibson 219 Ill. 550, 76 N.E. 689. Judicial officers possess the ultimate authority in determining whether probable cause exists for the purpose of issuing warrants of arrest, even if they are not consulted at the outset. Speaking to this issue, as to what course of action to follow when faced with a failure of a prosecuting attorney to act, such complaints may be presented to a magistrate for further investigation wherein the accused will be held pending review of a grand jury. People v. Parker, 374 Ill. 524, N.E.2d 11. It is not only that the Petitioner has tendered sworn complaints, but has likewise availed himself for examination as to their contents, which is required before a court may issue a warrant of arrest. 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. See also Village of Willowbrook v. Miller, supra. Failure of the person issuing a warrant of arrest to examine the complaining party, acting solely upon the information contained in the written complaint itself, will render the warrant defective for want of conformity with requirements that the complainant be examined under oath. People v. Krumery, App.1966, 74 Ill.App.2d 298, 220 N.E.2d 241. In all cases whatsoever, there must be a sworn complaint filed prior to trial before the law will support an arrest. 280 Ill. at 166, 117 N.E. at 434.

From these facts, it is clear that the Petitioner has satisfied all of the requirements necessary for bring charges against those whom he, on information and belief, committed an offense against the laws of Illinois, that being; complaints are in writing, are sworn to, have been presented to a court with Petitioner availing himself to be examined under oath. Therefore, there is no doubt that the right of an individual to bring charges as hereto described, directly before a court is without question.

Question 2. In light of the foregoing support of a private individual bring charges before a court; it has been brought to the Petitioner’s attention that the law reviewed by this Court in the case of Lindquist v. Friedman’s, Inc., supra., which has been determined to be good law, albeit antiquated, by the use of the word “magistrate” when identifying before whom complaints may be made, is in question as it applies to the Petitioner’s intentions. Illinois Statutes do not make reference to the word magistrate, but merely uses the word, “court” in identifying the source of where a complaint may be made. 725 ILCS 5/102 9 supra. Illinois Statutes define a court as a place where justice is administered, which also includes a judge. 725 ILCS 5/102‑10. As to the definition of a judge, the Statutes identify a person performing judicial functions by law. 725 ILCS 5/102‑13. Therefore, it is clear that when used in the Statutes, the words judge and court are essentially interchangeable. Where an individual may present a complaint to a court, he may present such charge to a judge. It is not unheard of for associate judges to examine complainants for the purpose of issuing warrants of arrest. See People v. Krumery, Supra, and the Illinois Constitution has been interpreted to say that no person may be arrested unless there be a sworn complaint presented before a judge, notwithstanding charges filed by information or indictment. 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.

From this point, there is little reference or discussion regarding the relevance of the word magistrate in contemporary Illinois jurisprudence. However, when consulting the supreme law of the State of Illinois, that being the Constitution for the State of Illinois, we find some guidance. Prior to the adoption of that Constitution, the framers of that document convened under the auspices of a constitutional convention. Before quoting from the text of the organic law for the State, I felt it prudent, for contextual purposes, to also investigate and quote from the official record of that Convention’s proceedings, which are printed under the title “Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970.” Although such documents may be viewed at best as persuasive authority, whereas a constitution is the primary authority for all law for the State, the record of any convention wherein the intent of the framers can be studied should be invaluable in interpreting the application of the Constitution. As to the discussion of magistrates, relating to that Convention, I make reference to the following:

Proposal No. 403. Introduced by Mrs. Kinney and Mr. Peccarelli. Proposes that the title of magistrate be changed to s more suitable title. Referred to the Committee on the Judiciary. Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Page 133, Journal of March 3, 1970.

President Witwer: Judiciary.

Clerk: No. 403—Delegates H. Kinney and Peccarelli.

Proposes that the title of magistrate be changed to a more suitable title. Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Page 403, Verbatim Transcript of March 3, 1970.

Mr. Fay: Do you want me to finish the general statement? Fine.

I might say here, you all know that the supreme court at the present time has exercised some vertical assignment. We do want to—want not to provide any vertical assignment for a magistrate, however, so that we won’t have—we won’t contemplate any magistrate being on the appellate court or on the supreme court. We do—and we are not before you now to give you our idea of what we are going to do with respect to magistrates, but I will just let you know that the committee is giving serious consideration, at least, to changing the word—calling a magistrate something other than “magistrate.” We might very well call him associate judge, particularly if that label becomes available by virtue of our doing away with the distinction between associate circuit and circuit judge. That is a possibility; but for the present—the preliminary report—we are continuing to use the word “magistrate.” [Emphasis Added] Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Page 686, Verbatim Transcript of April 15, 1970.

Mr. Nudelman: This won’t take long. Mr. Chairman, ladies and gentlemen, this section truly is noncontroversial. As a matter of fact, it’s so noncontroversial I haven’t even prepared anything for you. It’s on page 106; it relates to the term of office for judicial officers, and the actual change—the only actual change—as you will note, is the inclusion of the old office of magistrate, which, for the purpose of this section, we have renamed “associate judge,” and we include a term of office for the new “associate judge” of four years. The term of office for the supreme court, the term of office for the appellate court, and the term of office for the circuit court remains as it was. We saw no reason to change, nor were any changes suggested to us. Relative to magistrates or the new “associate judges,” if you will, several suggestions were made—one, that they continue to serve at the pleasure of the circuit judges, as is the case now.

Another suggestion was made that they be given longer tenure than we decided to give them; for example, the suggestion was made that they be given tenure of six years, other suggestions

were made that they run on a retention ballot from time to time, and others that they be given life-time tenure and be removed only for cause.

I can’t tell you that with any honesty that we rejected any suggestion strongly in favor of any other suggestion, but the consensus was that they should have some tenure; and, by accommodation, the committee arrived at four years. We think it’s something less than the term of circuit judges because they are, in fact, something less than circuit judges. That may have been the basic rationale, just as the circuit judges are something less than appellate and supreme judges, and, ergo, their terms are something less than appellate and supreme judges.

So the only real effect of the change in this section was the addition of the magistrate, now called “associate judge,” if you will, and giving him tenure of four years, and then, of course, subject to reapportionment, by the circuit judges. And if there are any questions, I would be happy to discuss them with you. [Emphasis Added] Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Page 2213 – 2214, Verbatim Transcript of July 1, 1970.

Mr. Nudelman: Magistrates are not—if you buy our proposal to change the name of magistrate to associate judges—associate judge, rather—don’t be concerned with the word “magistrate” any more, because we have done away with it. [Emphasis Added] Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Page 2219, Verbatim Transcript of July 1, 1970.

Mr. Fay: Mr. President and fellow delegates, we are now at section 14 which appears on page 13 of your book and relates only to terms of office. It does not change the terms of the judges of the supreme and appellate courts, which remains at ten years; it does not change the terms of the circuit judges which remains at six years; and, as you know, we contemplate that the presently existing associate circuit judges will become circuit judges, so their term will remain at six years; but it does provide, for the first time, for a term for the magistrates, which we now call associate judges—it gives them a term of four years. As far as I know, there are no pending amendments to this section and I would move its adoption on first reading and submission to Style and Drafting. [Emphasis Added] Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Page 2260, Verbatim Transcript of July 2, 1970.

Mr. Fay: … Now, we go on and provide that there shall be one circuit court for each judicial circuit which shall have such number of circuit and associate judges—that phrase right there is intended to mean magistrates—we’ve named them now associate judges—as may be prescribed by law. In other words, there is no change in that part. It leaves it to the legislature to decide how many judges there will be.… [Emphasis Added] Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Page 2277, Verbatim Transcript of July 2, 1970.

Mr. Fay: … Then the last—and this is somewhat controversial because the minority takes a different position—we provide—and this is a change from the existing setup—we recommend that the supreme court be given the power to provide by rule for the matters to be assigned to the associate judges. These are the old magistrates. This is in line with the thinking of the committee that we must look to the supreme court to really guide and administer the operation of the judicial system.

Now we have some schedule provisions in there. The first one is that on the effective date of this article, associate judges and magistrates shall become circuit judges and associate judges respectively of their circuit courts, and all laws and rules of court theretofore applicable to associate judges and magistrates shall remain in force and be applicable to the persons in their new offices until changed by the General Assembly or the supreme court as the case may be. [Emphasis Added] Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Page 2277 – 2278, Verbatim Transcript of July 2, 1970.

Mr. Fay: … Now over on page 46 you will see set forth in our committee report the rationale for the elimination of the present associate circuit judge distinction, and this is a point that we had great unanimity of opinion from those who testified before us. We feel that this is desirable—desirable flexibility—to leave this should eliminate the distinction between the presently associate circuit judges and the circuit judges. There will still be two classes though—there will be two classes of judges, because we are elevating the magistrates and we are going to call them associate judges, and they will not be on the same rank with the circuit judges. [Emphasis Added] Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Page 2278, Verbatim Transcript of July 2, 1970.

Mr. Fay: … There is no reason now why, when we elevate the magistrates, that the magistrates can’t do the same and provide courts— hold courts in the smaller communities. I know this has been a problem. Delegate Jim Parker talked to us about this. There are some of these small towns who’ve lost their justices of the peace, and they don’t have any judge to turn to; even on small things like traffic tickets, they have to go to the county seat. But I don’t think freezing into the constitution the requirement of one circuit judge per county is the answer to that.

Now, on page 52 you will see the rationale for the elimination of the magistrate classification and changing the magistrate title to associate judge. This is another matter that our committee is in unanimous agreemention [sic]. We have tried consistently to elevate the magistrates. We, as you know, have required them now to be lawyers, and we are giving them what we think is a better title; and we hope that we would give them better jurisdiction by permitting the supreme court to provide their jurisdiction through rule. [Emphasis Added] Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Page 2278 – 2279, Verbatim Transcript of July 2, 1970.

A detailed analysis on the treatment of magistrates is found in the Committee Proposals. Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Committee Proposals. Page 992 – 997.  Elimination of Magistrate Classification and Changing Magistrate Title to Associate Judge. Particularly illuminating is a dissent found at Page 997, denoted with section 56a, which is a dissent on other specifics of the reorganization of the judiciary, but nonetheless specify the powers of the former title of “magistrate”, now associate judge, with issuing arrest warrants.

*Dissent: Delegates Rachunas and Kinney respectfully dissent from those provisions which would permit (1) legislative reduction or elimination of the minimum allocation of judges between Chicago and suburban Cook County and (2) the election of all circuit judges from Cook County at large. Delegate Kinney suggested the language allowing the legislature to divide  circuits into smaller units for election or selection only, but is not seeking to enlarge elective areas in any circuit. She would also require that any division in Cook County apply to both the city and the suburban area, not just to one or the other. Based on testimony of downstate delegates concerning distances, emergency needs, and the low volume of judicial business in some counties, she suggests it may be acceptable to smaller counties to provide for a “circuit or associate judge” from each county other than Cook, the term “associate judge” being used to denote the judicial officer presently classified as a magistrate, with limited jurisdiction, but empowered to issue arrest and search warrants and hold preliminary hearings. [Emphasis Added] Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Committee Proposals. Page 997. Dissent to proposed amendment to Article VI of the Illinois Constitution relating to the Judicial Department.

The fruit borne from that Convention culminates in the Transition Schedule of the 1970 Constitution which reads:

Section 4. Judicial Offices

(a)  On the effective date of this Constitution, Associate Judges and magistrates shall become Circuit Judges and Associate Judges, respectively, of their Circuit Courts.

All laws and rules of court theretofore applicable to Associate Judges and magistrates shall remain in force and be applicable to the persons in their new offices until changed by the General Assembly or the Supreme Court, as the case may be.

(b)  (Removed)

(c)  (Removed)

(d)  Until otherwise provided by law and except to the extent that the authority is inconsistent with Section 8 of Article VII, the Circuit Courts shall continue to exercise the non-judicial functions vested by law as of December 31, 1963, in county courts or the judges thereof.

Illinois Constitution of 1970.

CONCLUSION

Question 1. The Petitioner has drafted complaints alleging the commission of offenses against two individuals who so happen to also be employed as police officers for the City of Fairview Heights, Illinois. These complaints are sworn to, in accordance with law. He has attempted to bring these complaints to the attention of judicial officers, police agencies, and officers empowered with the authority to act on such complaints. There is no requirement, for anyone wishing to allege the commission of an offense, to present them to anyone other than a judicial officer empowered to issue warrants of arrest. Illinois law makes no distinction as to who may file a complaint, and authority has been presented which affirms the right of private individuals to pursue such remedy. Arrest for a crime, and prosecution of a crime, involve two different procedures. Arrests are initiated by sworn complaint, indictment, or information and issued by judicial officers, be they called judges or magistrates. For the purpose of this memorandum, the words judge (both associate or circuit levels), magistrates, and courts are interchangeable. A sworn complaint presented to a court, which is sworn to under penalty of perjury, requires the judge to examine the complainant under oath and upon a finding of probable cause must issue a warrant for the arrest of the person or persons therein named.

Question 2. Prior to the Illinois Constitution of 1970, magistrates were recognized as judicial officers empowered with, among other things, examining complainants alleging offenses and issuing warrants of arrest. During the Constitutional Convention of 1970, it was proposed to change the title of magistrate to that of associate judge, due in-part to negative connotations associated with that office. The duties of magistrate were not altered in any way, but the final effect of such re-titling exists in the Transition Schedule of that Constitution. There is even evidence that the magistrate, or associate judge, level of the judiciary remained in place, but underwent a simple name change. Among those duties, lies the responsibility to issue warrants of arrest. What was once a judicial office known as magistrate, is now the same office known as associate judge. Therefore, at a minimum, what some pre-1970 cases refer to as magistrates when speaking to the issuance of warrants of arrest, are now associate judges who retain and possess all of the same powers exercised by magistrates. Associate judges in Illinois are empowered to hear all complaints, even those presented by private individuals, for the purpose of establishing probable cause under the Constitution, and issuing warrants for the arrest of said individuals.

Respectfully submitted,

Mark R. McCoy, Petitioner

 

Petitioner’s Exhibit A

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5. Elimination of Magistrate Classification and Changing Magistrate Title to Associate Judge

It is an unfortunate fact that the public views the magistrate as the same as, or as a near blood relative to, the old justice of the peace and police magistrate of the pre 1964 era. We have been urged by the representatives of the Illinois Circuit Court Magistrates Association (does not include Cook County Magistrates) to eliminate the title of magistrate. The urging was in fact a plea to the effect that “whatever else you do or do not do, eliminate the title of magistrate”.

The Committee on Constitutional Convention Proposals of the Illinois Judicial Conference, and a number of non-delegate and delegate witnesses, have recommended that the title “magistrate” be changed to “associate judge”. This keys in with that Committee’s recommendation to eliminate the associate judge classification and create a single class of circuit judge. This Committee agrees, because of the negative image created by the title, its damaging effect upon judicial morale, and the consequent unfortunate impact upon the judicial system.

Lest the Committee be charged with inconsistency in keeping the magistrate level of the circuit court judiciary, although changing the name to associate judge, while at the same time eliminating the original associate judge classification for reasons which may appear equally relevant to a complete abolition

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of the magistrate or associate judge classification, we suggest that the issues, though somewhat similar, are not parallel. As a preliminary observation, the Committee notes that some testimony was offered on, and the Committee on its own initiative considered, the desirability of a single class of trial judiciary in the Circuit Court. There is clear merit to such a proposal.

The Committee concluded, however, that there is a sound and defensible basis for retaining the magistrate (associate judge) level of judiciary, notwithstanding that it may to some degree perpetuate the negative public image of these judicial officers as being of lesser or inferior status to circuit judges, and may also perhaps risk the “class” distinctions which presently mar, to some extent, the relations of circuit and associate judges.

The principle difference that this Committee sees is in the potential of the magistrate (associate judge) class as a training and proving ground for lawyers seeking a career in judicial service. This is not to suggest that the magistrate’s responsibilities are not difficult or important. Quite the contrary. This Committee has said, and affirms, that magistrates engage in what may be the most important aspects of judicial service. By pure volume magistrates handle most of the judicial business in many circuits. Legal training and judicial competence at this level of service are critical, and it is hoped that magistrates will be appointed who possess the characteristics

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essential for competent judicial service. Having said this, however, the problem still remains of attracting the qualified lawyer to a type of service which requires a total commitment to a massive number of routine cases, as well as to the more unusual, but less frequent, litigation.

Many lawyers, hopefully, will look to this service as an opportunity for advancement into higher levels of judicial service. Indeed this was one of the original justifications for the establishment of the magistrate class. Statistics as to how many magistrates since 1964 have actually moved up the ladder are not easy to come by, but the hope persists that this service will indeed be the stepping stone for advanced judicial service.

One way of making the position attractive is to increase the salary.

This has been done several times since 1964. Another is to give the office a more prestigious title. This proposal seeks to do so.

In the last analysis what this Committee is saying is that many qualified lawyers who cannot or do not wish to compete for higher level judicial offices may be receptive to starting their careers at the level of magistrate. The Committee hopes to encourage this movement and looks upon its recommendation for a change in name from “magistrate” to “associate judge” as a worthwhile step in that direction.

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The recommended change in title does not itself make any change in the existing method of selection of magistrates.

That matter is dealt with in Section 12.

6. Supreme Court to Determine Matters Assignable to Magistrates

This Section now provides that the General Assembly shall limit or define the matters to be assigned to magistrates.

All bar association proposals for constitutional judicial revision offered in 1953, 1955, 1957 and 1961 gave this authority to the Supreme Court on the logical premise that the kinds of cases that judicial officers should hear was more properly a matter of internal judicial administration than of legislative concern.

Somewhere in the compromise that resulted in the 1961 adoption (as also happened in the 1957 proposal) the authority of the legislature was substituted for the Supreme Court.

The legislature has by detailed legislation defined the matters to be heard by magistrates. (Ch. 37, Ill. Rev. Stat. Sec. 621 et seq., 1969). Additionally, the legislature has authorized the Supreme Court by rule to specify additional categories of matters assignable to magistrates (Id. Section 627). The Supreme Court has responded by adopting Rule 295.

Given this history, and the relationship of matterthis [sic] to the administrative authority of the Supreme Court, it appears to this Committee that the power to determine matters assignable to

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magistrates should reside in the Supreme Court. One is hard put to find any truly plausible basis for insistence upon legislative authority in this area.

7. Change in Language Re Masters in Chancery

Section 8 provides that “There shall be no masters in chancery or other fee officers in the judicial system”. The Committee proposal eliminates the words “masters in chancery or other” keeping the ban on fee officers.

In the Committee’s view the change is more stylistic than substantive. The change will not restore the master in chancery fee system which prevailed prior to the new Judicial Article since as a fee officer the master would be barred under the language which is retained. If the State wishes to provide

a salaried judicial officer to perform the functions of the old master in chancery on a non-fee basis to litigants, it should be permitted to do so. It is quite probable that such authority presently exists but the deletion of the specific words is deemed desirable for two reasons: (1) the reference to masters in chancery is a redundancy as it is included in the more generic

term “fee officers”, and (2) the employment of the title “master in chancery” may appear to be barred even if the title is used for a salaried rather than a fee officer.*

996         SIXTH ILLINOIS CONSTITUTIONAL CONVENTION

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*Dissent: Delegates Rachunas and Kinney respectfully dissent from those provisions which would permit (1) legislative reduction or elimination of the minimum allocation of judges between Chicago and suburban Cook County and (2) the election of all circuit judges from Cook County at large. Delegate Kinney suggested the language allowing the legislature to divide circuits into smaller units for election or selection only, but is not seeking to enlarge elective areas in any circuit. She would also require that any division in Cook County apply to both the city and the suburban area, not just to one or the other. Based on testimony of downstate delegates concerning distances, emergency needs, and the low volume of judicial business in some counties, she suggests it may be acceptable to smaller counties to provide for a circuit or associate judge” from each county other than Cook, the term “associate judge” being used to denote the judicial officer presently classified as a magistrate, with limited jurisdiction, but empowered to issue arrest and search warrants and hold preliminary hearings.


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2 thoughts on “Memorandum of law regarding private individual making criminal complaint and the former office of magistrate in Illinois.

  1. […] Discussion on the matter found at http://markmccoy.com/wp/2011/06/06/memorandum-of-law-regarding-private-individual-making-criminal-co… Petitioner has appeared twice before the Honorable Brian Babka in response to this case. In the […]

  2. […] Discussion on the matter found at http://marcmkkoy.com/2011/06/06/memorandum-of-law-regarding-private-individual-making-criminal-co… Petitioner has appeared twice before the Honorable Brian Babka in response to this case. In the […]

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