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.
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.
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.
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.
I will be filing my Motion to Reconsider and Motion for Mandatory Judicial Notice today.
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/
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/
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 5/111‑3; 725 ILCS 5/107‑9; 725 ILCS 5/102 8; 725 ILCS 5/107-7; 725 ILCS 5/102‑10; 725 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
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.
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.
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 filed. Housh v. People, 1874, 75 Ill. 487.
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