Motion to Reconsider Courts Dismissal of Case 10-MR-212 Absent a Review of all Authorities Cited in Petitioner's Memorandum of Law

This is a motion in response to Judge Brian Babka’s dismissal of Case 10-MR-212 following my Memorandum of Law, and in support of my Motion to Reconsider his dismissal. I write of the dismissal here http://markmccoy.com/wp/2011/06/26/judge-brian-babka-dodges-the-issue-of-issuing-arrest-warrants-against-police-case-10-mr-212-is-dismissed/

Motion for Mandatory Judicial Notice can be found here.

IN THE CIRCUIT COURT

TWENTIETH JUDICIAL CIRCUIT

ST. CLAIR COUNTY, ILLINOIS

 

Mark R. McCoy,

Petitioner,

 

-VS-

Case No. 10-MR-212

Joshua Alemond

Aaron Nyman

Respondents.

 

MOTION TO RECONSIDER COURTS DISMISSAL OF CASE 10-MR-212 ABSENT A REVIEW OF ALL AUTHORITIES CITED IN PLAINTIFF’S MEMORANDUM OF LAW


     NOW comes the Petitioner, Mark R. McCoy, and through his MOTION TO RECONSIDER COURTS DISMISSAL OF CASE 10-MR-212 ABSENT A REVIEW OF ALL AUTHORITIES CITED IN PLAINTIFF’S MEMORANDUM OF LAW, states as follows:

 

1. That the above-captioned case was filed, to the best of the Plaintiff’s knowledge, on June 17, 2010, following Plaintiff personally tendering to Brendan Kelly, then Clerk of the Circuit Court, Twentieth Judicial Circuit, St. Clair County, Illinois, a number of documents captioned “Complaint and Affidavit in Support Thereof” which Plaintiff represented to be sworn complaints alleging violations of law by persons named therein, and which are sworn to by the Plaintiff and verified by the affixment of a signature and notarial seal from a Notary Public of the State of Illinois .

2. That then Clerk of the Circuit Court, Brendan Kelly, did presumably act within the Constitutional authority of his office in bringing said complaints before the court by way of his filing of the above-captioned case.

3. That the issue before this Court, originating with an officer of the Court filing said complaints, implies a remedy which exists with the Judiciary.

4. That if a remedy had existed with the administrative, as with the State’s Attorney, then it would be reasonable to assume that Mr. Kelly would not have taken the action of filing Plaintiff’s complaints in such fashion and would have instead either refused to accept Plaintiff’s complaints or directed Plaintiff to the State’s Attorney, which he did not.

5. That this Court is in possession of sworn complaints which originate with the Plaintiff, were received by an officer of the Court, presumed to be properly filed, and which conform to statutory requirements for presentment to a Court.

6. That this Court has essentially been presented with complaints which charge that an offense has been committed, thereby imposing a mandatory duty upon the Court by way of the plain language of the Illinois Code of Criminal Procedure 725 ILCS 5/107-9(a)to examine the complainant upon oath or affirmation.

7. That on August 16, 2010, to the best of the Plaintiff’s knowledge, additional complaints were added to the file subsequent to Plaintiff’s mailing of said complaints to Brendan Kelly, Chief Judge, John Baricevic, and then State’s Attorney, Robert Haida.

8. That the person responsible for supplementing the file with the additional complaints was then Clerk of the Circuit Court, Brendan Kelly.

9. That it is the Plaintiff’s belief that the person responsible for the filing of the above-captioned case is none other than then Clerk of the Circuit Court, Brendan Kelly.

10. That the above-captioned case was assigned to the Honorable Brian Babka pursuant to an Order entered by Chief Circuit Judge, John Baricevic on December 7, 2010.

11.That the above-captioned case contains no other pleading, motion, or prayer for relief, which would indicate a remedy sought by the Plaintiff.

12. That the Plaintiff did appear before the Honorable Brian Babka on February 24, 2011 for a hearing regarding this case.

13. That the Plaintiff did engage this Court with a verbal recitation of what he believed to be the circumstances giving rise to the Court being in possession of said complaints.

14. That this Court did identify and recognize the Plaintiff’s documents as being complaints alleging criminal offenses, and did thereby ask by what authority the Plaintiff believed he had a right to bring said complaints before a Court and not a State’s Attorney or police agency.

15. That the Plaintiff did provide one authority he felt best supported his position, that being Lindquist v. Friedman’s, Inc., 366 Ill. 232, 8 N.E. 2d 625 (1937).

16. That this Court said it would review the cited case and discuss its findings in a subsequent hearing.

17. That the Plaintiff did appear before the Honorable Brian Babka on May 12, 2011 for the purpose of discussing his review of Lindquist and its application to Plaintiff’s case for bringing complaints before the Court.

18. That Judge Babka did state that he did thoroughly research the Lindquist case and found it to still be current, and not overturned in any subsequent Appellate Court opinion, notwithstanding that opinion being rendered in 1937.

19.That Lindquist does speak to, and confirm the right, of a private individual to bring charges alleging violations of law before a “magistrate” for the purpose of a court examining the complainant and if, upon a finding of probable cause, issuing warrants of arrest for the accused to be brought before the Court to answer the charges and post bail, if need-be.

20.That the only exception between Lindquist and this case before the Court, as voiced by the Judge Babka, was that of there being no judicial officers presently serving in Illinois under the title of “magistrate”.

21.That Judge Babka did say that due to the lack of an identifiable judicial officer serving under the title of “magistrate”, an otherwise valid remedy is no longer available.

22. That Judge Babka did say that should the Plaintiff care to research the issue of “magistrates” and find where an answer affords a remedy, he may present that information to the Court for further review.

23. That Judge Babka did leave the above-captioned case open and scheduled for another status hearing in one year.

24. That upon further inquiry into the issue of judicial officers previously known as “magistrates”, no longer serving under that title in the State of Illinois, and if so empowered to hear complaints and issue warrants, to whom did that power now devolve, and what became of that judicial office, Plaintiff did file his MEMORANDUM OF LAW on June 13, 2011 which speaks to those very issues.

25. That in said Memorandum, the Plaintiff not only cites Lindquist, but other authorities as well, which not only support his position regarding bringing charges directly before a Court, but which also settles the question as to the fate of heretofore magistrates, who were empowered with hearing complaints, examining complainants, and issuing warrants of arrest, as having undergone a title change to that of Associate Judge, still possessing the same powers and duties as magistrates per the Illinois Constitution of 1970.

26. That among said authorities cited in Plaintiff’s Memorandum are citations from the Illinois Code of Criminal Procedure 725 ILCS 5/107 et seq., which impose a mandatory duty upon a Court to act when presented with a complaint that conform to statutory requirements.

27. That among said authorities cited in Plaintiff’s Memorandum is the Illinois Constitution of 1970 Transition Schedule and excerpts from the Sixth Illinois Constitutional Convention, which identify Associate Judges as having previously been titled magistrates, and who have the authority to issue arrest warrants, and conduct preliminary examinations of persons arrested.

28. That on June 20, 2011, the Honorable Brian Babka did issue an Order in response to Plantiff’s Memorandum.

29. That in said Order, Judge Babka cites the case of People ex rel.Daley v. Moran 94 Ill. 2d 41, 445 N.E. 2d 270, 67 Ill. Dec 790 in response to Plaintiff’s Memorandum, specifically one case therein cited as Lindquest v. Friedman’s Inc., 366 Ill. 232, 8 N.E. 2d 625 (1937).

30. That Plaintiff did provide other supporting authorities for his position, as well as raising other arguments in his Memorandum, that were not addressed in the Order.

31. That the Order mischaracterizes the remedy sought by the Plaintiff and is thereby unresponsive in that:

a. Plaintiff does not seek the issuance of arrest warrants, exclusively.

b. That Plaintiff is not seeking to exercise, or to have this Court exercise, any power belonging to the State’s Attorney, other Administrative Officer, or otherwise violate the doctrine of separation of powers.

c. That Illinois Law, Illinois Code of Criminal Procedure 725 ILCS 5/107 et seq., is clear on the procedure for presentment of a complaint to a court, and a duty of a Court to act when so presented, as cited in Plaintiff’s Memorandum, but such issue is not addressed in the Court’s Order dismissing this case.

d. That the case of People ex rel Daley v. Moran, cited in the Order, does not speak to the issuance of arrest warrants, but merely speaks to the separation of powers between the judiciary and administrative when charging an offense, making no mention of receiving complaints or examining complainants, and is not therefore on-point for the purposes of Plaintiff’s remedy.

e. That Plaintiff agrees with the holding in People ex rel Daley v. Moran, as the discretion for prosecution rests with the State’s Attorney, however the power to hear complaints, examine complainants, issue warrants of arrest, and conduct preliminary examinations, rests solely with the judiciary, of which Associate Judges are a part.

f. That Plaintiff answered the Court’s question as to magistrates and any corresponding judicial officer presently sitting and empowered to act upon complaints, by way of his Memorandum, where he cites the Illinois Constitution of 1970 Transition Schedule and excerpts from the Sixth Illinois Constitutional Convention.

g. That the contents of the file for this case do not clearly speak to the remedy sought by the Plaintiff, and the record is thin on written evidence, relying solely upon brief oral arguments which may not have clearly presented.

h. That the remedy sought by the Plaintiff is to present his sworn complaints and supporting evidence to a judicial officer empowered to hear such complaints, and to avail himself to being examined under oath, as required by law, and for such judicial officer to act upon the results of such presentment and examination according to law.

32. That this court has not reviewed, nor addressed, other supporting authorities presented, notwithstanding Lindquist, that affirm the right of a private individual to bring complaints before a Court.

33. That judicial officers once serving under the title of “magistrates”, now serve in the same capacity as Associate Judges, following a renaming of magistrates in the Illinois Constitution of 1970, but retaining the powers and duties previously assigned.

34. Therefore, considering all facts and circumstances to-date, it is reasonable to assume that a remedy exists with this Court for addressing or otherwise acting upon the Complaints contained therein

WHEREFORE, In light of the foregoing, and in the interest of justice and submission to the laws of the State of Illinois, Plaintiff hereby requests this Court to reconsider its Order of June 20, 2011 which dismissed the above-captioned case, and review all of the information before it.

                       

Mark R. McCoy, Petitioner

                       

Date


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