Category Archives: Meet Judge Brian A. Babka

Judge Brian A. Babka and Brendan Kelly, A Drunk Cop's Best Friend

On St. Patrick’s Day, 2012, Fairview Heights Police Sgt., James Krummrich, was arrested for driving under the influence. There was a hearing to rescind the administrative suspension of Krummrich’s driver’s license which was presided over by Judge Brian A. Babka.

I was pulled over by Fairview Heights Police on Feb. 17, 2009, because I was “weaving within my own lane”. Officer Joshua Alemond is the one who followed me while allegedly weaving, and upon my being stopped, I was beaten and Tased by Officer Aaron Nyman. There was never a request for a blood alcohol analysis or field sobriety test. I was not even charged or arrested for driving under the influence, but arrested regardless.

Here, Krummrich is involved in an accident, admits to drinking, and is observed by another officer to appear intoxicated. In my situation, the then Circuit Clerk, Brendan Kelly, fraudulently filed a civil case on my behalf which ended up in front of Babka. The reason for that case is because I swore to criminal complaints that I wished to present to a judge for the purpose of having arrest warrants issued for the crimes committed by Alemond and Nyman. Kelly, who had no right to even touch the complaints, filed a miscellaneous civil case on my behalf. When I appeared before Babka I raised this very issue and he ignored the irregularity.

One of the fatal flaws in Krummrich’s case is the failure of the Belleville Police Officer Anthony Branchini to request Krummrich to take a field sobriety test. Could this possibly shoddy police work on the part of Branchini? Very possible, but after how many arrests for DUI does a cop not request a field sobriety test? This is almost second nature. Although, I have to admit, this is not the first time Branchini has exhibited less than compentent ability in building a case. If you are intetested, then look up Ticket No. 0232640 issued by the Belleville Police Department on June 24, 2006 and read the Officer Narrative Report signed by Branchini. For a dumbed-down read of how the Illinois DUI laws work, read this piece from the Secretary of State, DUI Factbook 2012.

Babka, having possession of sworn criminal complaints by way of the fraudulently filed civil case by Brendan Kelly still played dumb and had me explain why I felt a private individual could bring charges directly to a court. I write about this in detail in another post, but essentially Babka first had me present the case law I was relying upon, then appear again to tell me my case law was good, albeit old, and fatally flawed because it referred to “magistrates”. I then wrote a lengthy brief regarding magistrates and how they are essentially the same as Associate Judges, courtesy the Illinois Constitution of 1970, but the duties still applied, which meant hearing complaints and issuing arrest warrants. Following Babka’s dismissal of the case I wrote a motion to reconsider because he refused to, or was incapable of, understanding the difference between issuing arrest warrants based upon complaints and commencing a prosecution.

Babka will not go against cops, so it seems, and will even disregard testimony of another cop in prosecuting a cop when there is sufficient cause to believe the officer to be intoxicated. In my opinion, Babka is a fraud, liar, and incompetent boob. He knew, or should have known, the difference between a magistrate and an associate judge, realize the case before him was a fraud, and act upon sworn criminal complaints. Instead, he obfuscated, dissembled, and ignored violations of law while committing malfeasance on his own.

With this story, Krummrich, a member of the same police department that alleged that weaving within one’s own lane was probable cause for initiating a traffic stop for driving under the influence, was involved in more serious circumstances for the same offense and given a pass by a drunk cops best friend, Brian A. Babka.

This story has been followed by the Belleville News Democrat. I’ll post links and text from those stories here, along with my commentary, since the News Democrat has blocked me from posting comments to their stories due to my “proselytizing”. That said, what follows is the articles from the BND.

Fairview Heights cop arrested for DUI; sergeant crashes car in Belleville
BY KEVIN BERSETT – News-Democrat -Tuesday, March 20, 2012 at 5:25 AM

http://www.bnd.com/2012/03/20/2107145/fairview-heights-cop-arrested.html

A Fairview Heights police sergeant was arrested for DUI on Saturday in Belleville.
James Krummrich, 47, was booked after he was involved in a traffic accident about 5:45 p.m. in the 900 block of North Illinois, according to Belleville police. He allegedly appeared intoxicated, so he was taken into headquarters where he was released after posting bail.
Krummrich declined to comment for this story.

Krummrich, a 15-year police veteran, has been suspended with pay pending the outcome of an internal investigation, Fairview Heights Police Chief Nick Gailius said. If the investigation turns up any evidence he did something unbecoming of an officer, his case will be turned over to the city’s Board of Police and Fire Commissioners, the chief said.
“It’s important to note that everyone is presumed innocent until proven guilty in court,” Gailius said.

Gailius would not comment on whether Krummrich had ever been previously disciplined by the department. Krummrich was off-duty and not in his police vehicle when the crash occurred, Gailius said.

“We are very thankful that no one was injured in the accident,” Gailius said.
No additional information about Krummrich’s arrest or the crash was released Monday by Belleville police.

Krummrich has been a sergeant since 2008 and is currently paid $86,136 to be a patrol supervisor. He is also an instructor at the Southwestern Illinois Police Academy.
Academy Deputy Director William Sax said he was unaware of Krummrich’s arrest and whether the academy would take any action against him.

Copyright 2012 Belleville News-Democrat. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Contact reporter Kevin Bersett at kbersett@bnd.com or 239-2535.

Cops versus cops: Fairview officer’s DUI hearing leaves judge undecided
BY KEVIN BERSETT – News-Democrat -Tuesday, May 1, 2012 at 9:15 PM

http://www.bnd.com/2012/05/01/2161390/judge-to-rule-on-whether-officers.html

Questions were raised Tuesday in St. Clair County Circuit Court over the Belleville Police Department’s handling of the St. Patrick’s Day DUI arrest of Fairview Heights Police Sgt. James Krummrich.

Associate Judge Brian Babka thought the factors surrounding the case were so unusual that he quoted a lyric from the ’60s rock band Buffalo Springfield during a hearing held to decide the fate of Krummrich’s driver’s license: “There’s something happening here, what it is ain’t exactly clear.”

Babka said he couldn’t conceive how the arresting officer Anthony Branchini could indicate Krummrich was “fit to drive” on a police report detailing Krummrich’s arrest for driving under the influence of alcohol. Babka also mentioned an allegation by the defense that a Belleville police lieutenant, not identified during the hearing and not at the scene of the crash, was the one who made the decision to arrest Krummrich, not the officers at the scene. – ISN’T IT INTERESTING THAT BABKA HAS A SYNAPTIC CONUNDRUM OVER CONFLICTING TESTIMONY, YET A FRAUDULENTLY FILED CASE WITH SWORN CRIMINAL COMPLAINTS COMPLETELY ESCAPE HIM IN MY CASE.

“There’s a lot of irregularities here,” Babka said.

At the conclusion of the hearing, which lasted more than an hour, Babka said he may need up to a week before deciding whether to rescind Krummrich’s driver’s license suspension. The suspension of Krummrich’s license for a minimum of 12 months was set to begin Wednesday.

Krummrich, 47, of Fairview Heights, has been on administrative leave with pay since his arrest. He is the subject of an internal affairs investigation, but the Fairview Heights Board of Police and Fire Commissioners has not scheduled a hearing yet on whether to take disciplinary action against him. – WHEN I TRIED TO FILE MY COMPLAINT AGAINST FAIRVIEW HEIGHTS POLICE JOSHUA ALEMOND AND AARON NYMAN, ACTING CHIEF GALLIUS HAD ME WRITE IT OUT ON A LEGAL PAD. HE DID NOT DIRECT ME TO THE FAIRVIEW HEIGHTS BOARD OF POLICE AND FIRE COMMISSIONERS. HE TOO, IS A FRAUD.

Defense attorney Gregory Skinner had called for Tuesday’s hearing. He is seeking to have the suspension rescinded on the grounds that the Belleville police report was defective and that Branchini did not have reasonable grounds to believe that Krummrich was driving under the influence. – I TOO DEMANDED A PROBABLE CAUSE HEARING TO CHALLENGE THE LEGALITY OF THE STOP WHERE I WAS ARRESTED AND BEATEN. THE FAIRVIEW HEIGHTS DID NOT APPEAR FOR THE HEARING, SAYING THEY WOULD NOT BE COOPERATING, AND MY CHARGES WERE DISMISSED.

Belleville police accused Krummrich of refusing to submit to sobriety tests after he was involved in a two-vehicle accident about 5:45 p.m. March 17 in the 900 block of North Illinois Street. No one was injured in the crash. A driver who fails to submit to sobriety tests automatically has their license suspended for a minimum of one year on the 46th day following their arrest.

At the hearing, Branchini testified that he arrested Krummrich because he smelled of alcohol, his eyes were glassy and he said he had a few drinks. Krummrich had already admitted to driving the truck involved in the accident, said Branchini, who has been a Belleville police officer since 2009. – THIS SEEMS LIKE MORE EVIDENCE THAN SOMEONE “WEAVING WITHIN THEIR OWN LANE”, YET KRUMMRICH IS ARGUING THERE WAS NOT PROBABLE CAUSE FOR HIS ARREST? PRICELESS, FOR A COP TO MAKE SUCH ASSERTINS, ESPECIALLY WHEN HIS GUYS ARE OUT DOING THE SAME TO OTHER PEOPLE.

Collinsville Police Sgt. Charles Mackin, who was a passenger in Krummrich’s 1995 GMC Sierra pickup, testified for the defense. Mackin said he was with Krummrich or Branchini during the entire time prior to Krummrich’s arrest and never heard him refuse to take a sobriety test. – I WOULD NOT PUT TOO MUCH STOCK IN TESTIMONY FROM ANOTHER COP, ESPECIALLY A COLLINSVILLE COP.

Mackin also testified that based on his 22 years of police experience he would not have arrested Krummrich for DUI. Was Krummrich under the influence of alcohol at the time, Skinner asked. – WHAT MEANT TO SAY, IS THAT HE WOULD NOT HAVE ARRESTED A “FELLOW OFFICER” WHO WAS DRUNK. THAT’S HOW THE SYSTEM WORKS.

“No, not at all,” Mackin testified.

Belleville police officer Dusty Kallal, who assisted Branchini, said he asked Krummrich to take a field sobriety test but he declined. Kallal admitted that he failed to mention this in his report.

But Assistant State’s Attorney Julie Elliot argued that Krummrich’s refusal to take a sobriety test was mentioned in Branchini’s report.

Branchini testified that Krummrich refused to take a field sobriety test at the scene and after his arrest he refused to take a breath test at the police station. Branchini said he had a video from his patrol car camera of Krummrich’s original refusal.

There one problem: Prosecutors never turned over this video to the defense during discovery. – IN MY CASE, I RAISED THE ISSUE OF DASHBOARD VIDEO EXCULPATING ME AND WAS NEVER PRODUCED UNTIL THE DAY BEFORE MY PROBABLE CAUSE HEARING WHERE THE PROSECUTION ACTED SURPRISED, EVEN THOUGH I HAD BEEN REFERRING TO IT FOR WEEKS. AFTER I RECEIVED THAT VIDEO FROM FAIRVIEW HEIGHTS, THEY REFUSED TO PURSUE CHARGES BECAUSE THE VIDEO CONTRADICTS THEIR REPORTS AND SHOWS THEM TO BE LIARS.

In response, Babka took off his glasses, put his hands on his head and asked Skinner whether he wanted to request sanctions against the prosecution for its failure to turn over the video as required. Elliot countered that Belleville police never gave her office that video, although they did submit videos from Kallal’s car and the booking area.
“I’m just as blind-sided as you are,” Elliot said to Babka.

Branchini and Kallal would not comment following the hearing. Belleville police spokesman Capt. Don Sax said he was unaware that the prosecutors did not receive all the videos.
“I wouldn’t know why not, without looking into it,” Sax said. “I had no idea they didn’t have everything.”

Belleville police have denied a public records request from the News-Democrat to view all the reports and the videos related to Krummrich’s arrest because the case is ongoing.
In closing arguments, Elliot argued that whether the state could prove Krummrich was under the influence of alcohol should be left to trial. All that the judge should consider when deciding whether to rescind Krummrich’s suspension was whether the officers had reasonable grounds to believe he was under the influence of alcohol.

Skinner countered that it appears the police investigation was not done in a “very competent” manner and that no field test was ever offered for Krummrich to deny.
Babka said the “gold standard” on whether the sobriety test was refused would have been the video from Branchini’s car, but the court didn’t have it. The judge hinted that he would have also liked to have heard Branchini explain why he put down Krummrich as fit to drive on his DUI report. The prosecution, however, never asked the officer that question.
“They’re some unusual features here,” Babka said. – THERE WERE UNSUAL FEATURES IN MY CASE TOO, MR. BABKA. WHY DIDN’T YOU QUESTION THOSE?

Copyright 2012 Belleville News-Democrat. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Contact reporter Kevin Bersett at kbersett@bnd.com or 239-2535. Follow him on Twitter at twitter.com/KevinBersett

Judge reinstates driver’s license for Fairview police sergeant charged with DUI
BY KEVIN BERSETT – News-Democrat -Friday, May 4, 2012 at 10:12 PM

http://www.bnd.com/2012/05/01/2161390/judge-to-rule-on-whether-officers.html

A St. Clair County judge rescinded on Friday the driver’s license suspension of Fairview Heights Police Sgt. James Krummrich who temporarily lost his license following a St. Patrick’s Day DUI arrest.

Associate Judge Brian Babka sided with the testimony of a Collinsville police sergeant, who was a passenger in Krummrich’s pickup, and questioned the strength of the evidence offered by Belleville police, whose handling of the investigation was scrutinized Tuesday during a hearing over the license suspension.

“I find that the testimony of defendant’s witness, officer Charles Mackin, of the Collinsville Illinois Police Department, was entirely credible, and very probative,” Babka wrote in his order. “An officer with 22 years of experience, his testimony was unimpeached. He stated his opinion was that defendant was not under the influence at all, and that there was not enough evidence to charge the defendant.” – NEVER MIND A WRECKED VEHICLE, AN ADMISSION TO HAVING BEEN DRINKING, AND A NUMBER OF OTHER OFFICERS CITING KRUMMRICH’S APPEARANCE. HE HAD A NOTE FROM HIS MOMMY, SO I’LL LET HIM GO.

James Krummrich

Fairview Heights police sergeant James Krummrich, arrested for DUI on St. Patrick’s Day in Belleville. – Provided/BND

Krummrich, 47, was charged with DUI and improper merging into traffic in connection with a March 17 two-vehicle accident in the 900 block of North Illinois Street that did not result in any injuries. He lost his license under Illinois’ statutory summary suspension law, which strips DUI defendants of their driver’s license for a minimum of 12 months when they refuse to undergo chemical testing.

Defense attorney Gregory Skinner requested Tuesday’s hearing. He was seeking to have the suspension rescinded on the grounds that the Belleville police report was defective and that police did not have reasonable grounds to believe that Krummrich was driving under the influence of alcohol.

Skinner would not comment Friday because he had not yet read the order.
Belleville police testified that they had reasonable grounds to believe Krummrich was under the influence of alcohol because he admitted to having a few drinks, had glassy eyes, smelled of alcohol and refused a field sobriety test.

“We respectfully disagree with the judge’s decision, and we are reviewing it,” State’s Attorney Brendan Kelly said. – WELL, MY CONFIDENCE LEVEL JUST WENT THROUGH THE ROOF. BRENDAN KELLY, THE SAME GUY WHO AS CIRCUIT CLERK MISHANDLED MY COMPLAINTS AND PLACED THEM IN FRONT OF BABKA? GOOD LUCK.

In his order, Babka cited case law that stated officers must show probable cause that someone was driving under the influence, and not act on “mere suspicion” when making an arrest.

A driver involved in an accident and who smells of alcohol must show additional signs of intoxication before they can be arrested for DUI, the case law cited by Babka stated. These signs could include bloodshot eyes, slurred speech or erratic driving, none of which Krummrich displayed, the judge stated. In fact, arresting officer Anthony Branchini described Krummrich as cooperative, orderly and “fit to drive” in his report on the DUI.
Babka reiterated the unusual factors surrounding the case, which he had made note of during the hearing.

“There is a veritable ‘tsunami’ of unusual or irregular events that surround this cause, including the disclosure during the hearing of a video/audio recording of some of the events that was not previously produced to defendant despite a prior discovery request, no record of a field sobriety test being offered by an officer during an investigation of an alleged DUI in his report, a bizarre report by an alleged eyewitness to the accident involved which was found to be completely erroneous, (including the driver and passenger changing seats), mistakes in the investigative officer’s reports such as a (preliminary breath test) being offered, when admittedly, there was no such offer, and other events,” the order states.
Belleville police failed to provide prosecutors with a video from Branchini’s patrol car, which he testified would have shown Krummrich refusing to take a field sobriety test. Assisting officer Dusty Kallal testified Krummrich refused a field sobriety test and later a breath test after his arrest, but did not mention these in his reports. Krummrich’s denials to take the tests were mentioned in Branchini’s report, according to Kallal and Assistant State’s Attorney Julie Elliot.

Mackin testified he never witnessed Krummrich being offered a field sobriety test. He also alleged that a Belleville police lieutenant not on the scene made the decision to arrest Krummrich, not Branchini or Kallal, who testified to having a combined 11 years police experience.

Belleville Police spokesman Capt. Don Sax refused to comment for this story because the case is ongoing. Belleville police have refused to release police reports, 911 tapes and videos related to the case for the same reason.

Krummrich has been on administrative leave with pay since his arrest. No trial date has been set in his DUI case.

Copyright 2012 Belleville News-Democrat. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Contact reporter Kevin Bersett at kbersett@bnd.com or 239-2535. Follow him on Twitter at twitter.com/KevinBersett

Opinion
Saturday, May. 05, 2012
Baffled by DUI ruling

http://www.bnd.com/2012/05/05/2165976/baffled-by-dui-ruling.html

The Belleville police’s handling of Fairview Heights Police Sgt. James Krummrich’s DUI is, in a word, a mess. It seems like the work of the Keystone cops.

Krummrich was ticketed for DUI on St. Patrick’s Day following a two-car accident.
Why did Belleville officer Anthony Branchini mark on the report that Krummrich was fit to drive after a DUI ticket? Why, if he had a dashboard video of Krummrich refusing to take a field sobriety test, wasn’t that turned over to prosecutors? And what’s this about a lieutenant not at the scene making decisions?

These and other discrepancies will make it difficult, maybe impossible, for the St. Clair County state’s attorney to successfully prosecute Krummrich for DUI. If Belleville Police Chief Bill Clay isn’t already investigating his officers’ handling of this case, he needs to get started.

That said, we are baffled by St. Clair County Associate Judge Brian Babka’s decision to let Krummrich keep his driver’s license. In Illinois accused DUI drivers who refuse chemical tests automatically lose their driving privileges for a year. But Babka ruled that there wasn’t sufficient reason for the police to ask him to take such a test in the first place.
Really? Krummrich was involved in an accident, he admitted he had been drinking and an on-duty police officer said Krummrich smelled of alcohol and his eyes were glassy. That seems like plenty of reason for the police to want to check to see whether he was over the legal limit.

Babka notes that Krummrich wasn’t swaying or slurring his speech, and that his policeman pal who was riding with him testified that Krummrich wasn’t driving impaired. A motorist doesn’t have to be falling down drunk to be impaired. The legal limit in Illinois is a relatively low .08.

As far as the pal’s testimony, he may be too close to the situation to be objective. What else would he say? That he let his friend drive even though he’d had one too many?
We expected Babka to back up the automatic suspension law. How disappointing that instead he found a loophole for Krummrich.

My Letter to the Editor of the Belleville News Democrat which ran on 5/15/12

Police held to a different standard

http://www.bnd.com/2012/05/14/2175928/police-held-to-a-different-standard.html

So, Fairview Heights Police Sgt. James Krummrich admitted to drinking before an accident, and another officer perceived his appearance to be consistent with intoxication. Thanks to a technicality (cop talk), Krummrich found refuge under the robe of St. Clair County Judge Brian Babka.
Did Babka apply the law? I find that hard to believe; especially when I’ve seen Babka directly ignore the law, require me to write a brief, and then refuse to hold a hearing on his ruling denying my motion.
Let’s say that Krummrich was driving his car home at 2 a.m. and an officer observed him “weaving within his own lane,” not speeding or even crossing the lines. According to actual police reports and an absurd assertion by the assistant state’s attorney, the police would have the necessary authority to suspect the driver of being intoxicated, initiate a stop, forgo any questioning or investigation, and then proceed to Tase, beat, and arrest the sober “perp.”
Eventually, the accused would have a case filed on his behalf by the Circuit Clerk, which would then end up in front of Babka, who would acknowledge the apparent “irregularity” with the case file, but proceed nevertheless. Babka may then, after being confronted with “settled law” (Including the Illinois Constitution), scratch his head over the definition of “magistrate,” and further refuse to do his judicial duty in hearing a sworn complaint.
Why didn’t Babka play dumb, like he did in Case 10-MR-212? Why do cops “lawyer up” when it suits them? A malfeasant by any other name. …
Mark McCoy
Collinsville

UPDATE – 7/26/12

State’s Attorney, Brendan Kelly, goes on the record with his decision to not prosecute Fairview Heights police sergeant, James Krummrich, for his alleged drunk-driving-related crash on St. Patrick’s Day, 2012. Kelly goes on the record with stating he investigates and prosecutes police against whom criminal allegations are made, which is an absolute lie, considering how he took complaints from me regarding Fairview Heights Police, Officer Alemond and Officer Nyman, and improperly filed them as a civil case before Judge Brian Babka, who then dismissed the case.

I have made a number of people aware of this, including the Belleville News Democrat, who refuse to print one word involving the ordeal.

This is the story at the Belleville News Democrat

http://www.bnd.com/2012/07/24/2256404/mistakes-were-clearly-made-kelly.html#storylink=omni_popular#wgt=pop

krummrich crash report

Here is Brendan Kelly’s statement in regard to the Krummrich case, in response to a News-Democrat reporter’s questions:

Sgt Krummrich”™s cases are no longer pending. In the interest of the public trust, the problems in this case should be discussed. No one is above the law especially those who have sworn to uphold the law. That’s why my Office has charged nine law enforcement officials with criminal charges in the last nine months. My Office continues to review allegations of unlawful conduct by police officers and will prosecute police officers who have violated the law when the facts and evidence allow us to do so. At the scene, the decision to arrest someone is a police decision, not one made by prosecutors. The patrol officers allegedly had evidence that Sgt. Krummrich had caused an accident after pulling out of the parking lot of a tavern. They also allegedly had evidence that his eyes appeared glossy and that he stated “œ a few” when asked if he consumed any alcoholic beverages that day. I will not criticize the decision to arrest him.

The evidence was insufficient to convict beyond a reasonable doubt for several reasons:

” there was no evidence that Sgt. Krummrich was staggering, unsteady, stumbling or unable to stand in either the on scene video or booking video at the station.

” there was no evidence that Sgt. Krummrich had blood shot eyes or slurred speech.

” there was evidence Sgt. Krummrich admitted to having “œa few” drinks, but no evidence of him admitting to being intoxicated.

” there was no evidence from field sobriety tests because none were performed by Sgt. Krummrich.

” there was no evidence of blood alcohol content because Sgt. Krummrich did not perform a breathalizer test.

” there was no evidence of alcoholic beverage containers in Sgt. Krummrich”™s vehicle. Mistakes were made by the arresting officer that undercut his testimony including

(1) after he arrested Sgt. Krummrich for DUI, he marked in a report that Sgt. Krummrich was “œfit to drive,” and

(2) he testified that on scene, Sgt. Krummrich refused to do sobriety tests, but no such refusal was captured on the audio recordings of the stop.

There is zero evidence to believe the patrol officers purposely made mistakes or did anything unlawful. Mistakes were clearly made, but it is also clear these mistakes were neither malicious nor purposeful. Consequently, I have no credibility concerns about these Belleville officers. Officer Branchini logged a copy of his squad car recording into evidence. A prosecutor requested a copy of this recording listed in the evidence receipt. A separate officer tendered to that prosecutor a copy of the booking area video and a recording that turned out to be from Officer Kallal”™s squad car. Copies of these recordings were tendered to the defense. Nothing indicated this recording was anything but what was documented on the evidence receipt. This mistake came to light at the hearing and was rectified by getting a copy of Officer Branchini”™s recording that was then provided to the defense. However, neither of the recordings from the squad cars captured anything incriminating against Sgt. Krummrich. After the hearing, my Office ordered an 88 page transcript of the hearing to precisely review the testimony of all the witnesses. At the end of this review and in light of the court”™s very detailed, factual findings, it was clear that the right thing to do- the only thing to do- was to dismiss the DUI case. We can”™t make up evidence. I can”™t prosecute someone based on my personal feelings about a situation. I”™ve got to have evidence. The remaining traffic charge(improper merging into traffic) was disposed of only after the attorney of the victim involved in the accident made clear his client no longer wished to proceed in any case. The finding of guilty on this charge had nothing to do with the dismissal of the DUI case. With summary suspension hearings, judges can rule against the prosecution in two ways”¦first, a judge can find there was a procedural / technical violation such as the officer failed to read verbatim the warnings to motorist. Second, a judge can find there were no reasonable grounds or probable cause that the driver was intoxicated. If the Judge had ruled in favor of the defendant on a procedural technicality, and the evidence had been stronger, we may have moved forward with the criminal case. He did not do so. Instead, the judge made a legal conclusion based upon findings of fact from evidence presented at the hearing. The judge found that “œthere is no credible evidence that defendant was intoxicated.” It is not unusual to dismiss a case after the court makes such a finding. This is because once a judge has decided there is no probable cause the driver was intoxicated, it will be a practical and legal impossibility to prove intoxication at trial beyond a reasonable doubt. At our request, Belleville officers conducted some final additional investigations seeking proof Sgt. Krummrich purchased alcohol around the time of the crash. No evidence could be found. In addition, a witness to the accident initially claimed that the driver and front seat passenger of Sgt. Krummrich”™s vehicle had switched after the accident, and then returned to the scene after he confronted them. My Office requested the Belleville Police to investigate this very serious claim. When questioned by Belleville detectives, this witness said he was not 100% sure they switched. Also, the detectives checked unsuccessfully for any video recording devices that may have captured the accident or where Sgt. Krummrich”™s vehicle was driven after the accident. On scene, Sgt. Krummrich stated he was the driver at the time of the accident. The driver of the other vehicle involved in the accident repeatedly stated on scene that Charles Mackin was not the driver of Sgt. Krummrich”™s vehicle. After the investigation, there was insufficient evidence to support this claim that the occupants of Sgt. Krummrich”™s truck had switched seats. The credibility of these officers will be reviewed on a case by case basis as is the credibility of every witness in a case.

No one is above the law, but neither is anyone below the law. Proof beyond a reasonable doubt applies to a charged police officer as well as any civilian. The evidence is what the evidence is no matter who you are or who you know. This is true for the other officers and public officials being prosecuted by my Office right now. John Adams said, “œfacts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” The facts in this case are especially stubborn. Political perception and cynicism about the system made this a frustrating case to have to dismiss. But a prosecutor’s decisions have to be made on the law and the evidence. In the end that may be a prosecutor”™s most important duty regardless of the potential criticism. Mr. Romanik is free to discuss his cases, but prosecutors do not have that luxury. We cannot and will not comment on his cases because they are still pending. We will not compromise his right to a fair trial.

Belleville Police video of Fairview Heights Police Sgt. James Krummrich’s arrest on March 17 after a car crash. DUI charges were later dropped and Krummrich pleaded guilty to improper merging.

This is a letter I submitted via email to the Letters to the Editor (letters@bnd.com) on 7/26/12, regarding Kelly’s statement about prosecuting police who violate the law:

Allow me to quote State”™s Attorney, Brendan Kelly, from his statement to the BND regarding the Krummrich case:

“œMy Office continues to review allegations of unlawful conduct by police officers and will prosecute police officers who have violated the law when the facts and evidence allow us to do so.”

I have a question for Mr. Kelly; since when?

When Mr. Kelly was Circuit Clerk he personally took sworn criminal complaints from me where I allege violations of law by Fairview Heights Police officers Alemond and Nyman, under the guise of properly filing them for review by the then State”™s Attorney, Bob Haida. I have emails between Mr. Kelly and myself where this was discussed at length until I brought up the contradictions and hypocrisy in his statements regarding how the charges should be handled.

Consequently, Miscellaneous Remedy Case 10-MR-212 was filed by Mr. Kelly and set for hearing before Judge Babka, another dissembling, disingenuous lackey for the corrupt powers-that-be who acknowledged irregularities with the case and confirmed my supporting case law was good, but who still refused to hear the complaints.

Tell me something Mr. Kelly, what of the complaints and supporting evidence you have in your possession regarding Fairview Heights Police? Where is your law enforcement fervor with respect to those charges? Where is the BND reporting on all of this, especially when I have provided them with the same evidence?

To you all I say, liars, hypocrites, despots, frauds, thugs, thieves, and psychopaths. There”™s more at http://www.markmccoy.com

UPDATE 8/8/12

Well, the BND edited my letter and left off the last paragraph.
http://www.bnd.com/2012/08/07/2275716/double-standard-of-justice.html

The last paragraph which reads:

“There’s more at http://www.markmccoy.com.”

originally read:

“To you all I say, liars, hypocrites, despots, frauds, thugs, thieves,
and psychopaths. There?s more at http://www.markmccoy.com”

So, they won’t let me call them liars, hypocrites, despots, frauds, thugs, thieves, and psychopaths….

Some newspaper.

8/11/12

There has been one reply to my post

http://www.bnd.com/2012/08/07/2275716/double-standard-of-justice.html

where I was somehow allowed to reply after being previously banned. I’m posting a screenshot of my reply since I expect the BND to delete my post.

and of course, not too long afterward, I was censored. Here’s a screenshot of my post being removed:

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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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Motion for Mandatory Judicial Notice in Support of Petitioner's Motion to Reconsider

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/

The Motion to Reconsider 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 FOR MANDATORY JUDICIAL NOTICE IN SUPPORT OF PETITIONER’S MOTION TO RECONSIDER

     NOW comes the Petitioner, Mark R. McCoy, and through his MOTION FOR MANDATORY JUDICIAL NOTICE IN SUPPORT OF PETITIONER’S MOTION TO RECONSIDER, moves this Court to take Mandatory Judicial Notice of the following matters set forth hereafter, pursuant to the Mandatory Provisions of the Illinois Code of Civil Procedure Section 735 ILCS 5/8-1001 et seq., which Motion is made in support of the here accompanying MOTION TO RECONSIDER COURTS DISMISSAL OF CASE 10-MR-212 ABSENT A REVIEW OF ALL AUTHORITIES CITED IN PLAINTIFF’S MEMORANDUM OF LAW.

 

MATTERS TO BE JUDICIALLY NOTICED

 

1. The Court should take Judicial Notice of the Illinois Code of Criminal Procedure 725 ILCS 5/107 et seq., which defines the requirements for bringing complaints before a Court, examination of complainants and witnesses, and issuance of arrest warrants.

2. The Court should take Judicial Notice of the contents of the Case File as containing documents captioned as “Complaint and Affidavit in Support Thereof” which are sworn to by the Plaintiff and which meet the requirements for a complaint pursuant to the Illinois Code of Criminal Procedure 725 ILCS 5/107-9(b)(1)(2)(3)(4) which states:

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

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

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

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

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

3. The Court should take Judicial Notice of the Illinois Code of Criminal Procedure 725 ILCS 5/107-9(a) which states, “When a complaint is presented to a court charging that an offense has been committed it shall examine upon oath or affirmation the complainant or any witnesses.”

4. That the Illinois Code of Criminal Procedure 725 ILCS 5/107-9(a) does not limit what court may hear complaints, be they administrative, criminal, or civil.

5. That the Illinois Code of Criminal Procedure 725 ILCS 5/107-9(a) does not specify who may, nor preclude who may not, present a complaint to a court.

6. The Court should take Judicial Notice of Illinois Code of Criminal Procedure 725 ILCS 5/102‑9 which defines a complaint to mean: “Complaint” means a verified written statement other than an information or an indictment, presented to a court, which charges the commission of an offense.”

7. The Court should take Judicial Notice of Illinois Code of Criminal Procedure 725 ILCS 5/102‑10 which defines a court to mean: “Court” means a place where justice is judicially administered and includes a judge thereof.

8. The Court should take Judicial Notice of Illinois Code of Criminal Procedure 725 ILCS 5/102‑13 which defines a judge to mean: “Judge” means a person who is invested by law with the power to perform judicial functions and includes a court when a particular context so requires.”

9. That the Illinois Code of Criminal Procedure 725 ILCS 5/102‑13 does not exclude associate judges.

10. That the Court should take Judicial Notice of the Constitution of the State of Illinois, 1970, Transition Schedule, Section 4. Judicial Offices.

11. That the Constitution of the State of Illinois, 1970, Transition Schedule, Section 4. Judicial Offices details the renaming of magistrates to associate judges.

12. That the Constitution of the State of Illinois, 1970, Transition Schedule, Section 4. Judicial Offices details the duties and responsibilities of associate judges as those belonging to former magistrates.

13.That the Court should take Judicial Notice of the Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970.

14. That the Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970 mentions on a number of occasions, the intent and application of the proposed renaming of magistrates to associate judges.

 

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 , , ,

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.*

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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.