The following is the court filing by Robert Scigalski and Patrick Hanretty of Quest Consultants International asking that Judge Joseph McGraw recuse himself in McHenry County State’s Attorney Lou Bianchi’s attempt to have the two and Special Prosecutor Thomas McQueen held in contempt of court.
NOW COME the Defendants, ROBERT SCIGALSKI and PATRICK HANRETTY, by and through their attorneys, J. STEVEN BECKETT and ROGER B. WEBBER of BECKETT & WEBBER, P.C., and present the following Memorandum in support of their Motion for Reousal.
On or about January 10, 2013 , Plaintiff, Louis A. Bianchi, filed a Petition for Adjudication of Criminal Contempt against Defendants Thomas K. McQueen, Robert Scigalski and Patrick Hanretty. All of the allegations in the Petition stem ůom an investigation and prosecution of Plaintiff, Bianchi which came about as follows. On September 18, 2009, McHenry County Circuit Judge Gordon Graham appointed Henry C. Tonigan as a special state’s attorney and Defendant McQueen was appointed to “assist” to conduct an investigation in McHenry County. McHenry County State’s Attorney, Louis Bianchi, Plaintiff herein, had an interest in the Subject matter and was therefor conflicted. (Petition paragraph and Exhibit A., Hereinafter Pet. par. 1, Ex. A).
Quest Consultants International Limited (Hereinafter Quest) and several of its employees including defendants, Robert Scigalski and Patrick Hanretty were retained by Tonigan and McQueen as special investigators and appointed by Judge Graham as agents and investigators to a special grand jury. (Pet, par. 3, EX. B.) That grand jury returned indictments against Plaintiff Bianchi, although he Was subsequently acquitted. This Petition has evolved out of that With respect to defendants, Scigalski and Hanretty, the Petition alleges infer alia that:
A. The Quest Investigators conducted a background check on Judge Joseph G. McGraw to reveal sensitive financial and personal information regarding Judge McGraw and his family members, including current and former residences, Vehicle registration information and real property ownership and loan information [Pet., pp. 8-9, par. 5(a), Ex.KK] and
B. Defendants Scigalskí and McQueen manufactured a “leak” concerning an article entitled, “Bianchï’s Judge received payments from ILSAAP,” for the purpose of making a baseless personal attack on Judge McGraw. [Pet p9, par. 5/cf).]
STANDARDS FOR RECUSAL
Supreme Court Rule 63(C)(1)(a), (188 Ill. 2d R. 63(C)(l)(a) provides in relevant part:
“(l) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding[.]” 188 111.2d R. 63 (C)(1)(a).
“Rule 63 requires a judge to rceuse himself When his participation might reasonably give rise to questions regarding his impartiality, including situations involving the appearance of impropriety.” People v. Buck, 361 App.3d 923, 931, 297 lll. Dee. 700, 707, 838 NE2d 187, 194 (2d Dist. 2005).
Generally, a judge Should recuse himself ůom a contempt hearing if he has become “personally embroiled” such that heis “unfit to Sit in judgment on the contempt charge.” Mavberrv v. Pennsylvania, 400 U.S. 455, 465, 9l S. Ct. 499, 505, 27 L. Ed. 2d 532 (1971).
“The Court of Appeals for the Seventh Circuit set forth a test for determining an appearance of partiality, in PeDSico. Inc. V. McMillen. 764 F.2d 458, 460 (7th Cir.1985): Whether an objective, disinterested observer fully informed ofthe relevant facts would entertain a significant doubt that the judge in question was impartial.” Leavell v. Dep’t of Natural Res., 397
In the instant case, the allegations of contemptuous conduct on the part of Scigalski and Hanretty have necessarily embroiled the judge personally into the controversy. Itis alleged that, “Quest employees conducted a background cheek on Judge Joseph G. McGraw, to reveal sensitive financial and personal information regarding Judge McGraw and his family members, including current and former residences, Vehicle registration information and real property ownership and loan information.” (Emphasis added) pp. 8-9, par. 5(a), Ex. KIQ.
It is no surprise and not likely to influence a judge, even on a subconscious level, to learn that litigants before that judge “investigated” the judge. One of the fundamental principles of public speaking is to “know your audience.” In that Way litigants can be expected to attempt to learn as much as possible about the judge assigned to hear their case as possible; particularly in tenns of any tendencies of their rulings, expectations of procedure etc.
It is much more unexpected that such an investigation would include family members of the judge and go beyond his “judicial persona” delving into purely private matters. In that situation it is quite reasonable to expect that, at best, the judge will be unappreciative of the invasion and at worst, be down right insulted, offended or incensed and looking for retribution..
The other allegation (concerning the Quest employees) is an accusation that Defendants Scigalski and McQueen manufactured a “leak” concerning an article entitled, “Bianchi’s Judge received payments from ILSAAP,” for the purpose of making a baseless personal attack on Judge McGraw. (Pet. p. 9, par. (D.) This allegation unquestionably raises the significant risk that an objective, disinterested observer fullly informed of the relevant facts would entertain a significant doubt that the judge in question was impartial.
This allegation puts the court between a rock and a hard place. Ruling against the defendants creates the risk that an objective observer could believe that the decision was influenced by a desire to punish those accused of investigating too deeply into the judge’s background or of manufacturing a “baseless personal attack.” On the other hand, ruling in favor of the defendants could cause that sarne observer to wonder if the court bent over backwards to avoid the appearance of the former.
The Supreme Court of the United States has recognized the necessity of the contempt power, to protect the administration of justice and dignity of the courts, as indispensable. Yet, it has also emphasized the delicate nature of its proper exercise in order to avoid arbitrary or oppressive conclusions. In Maybe@ the Court said, “This rule of caution is more mandatory Where the contempt charged has in it an element of personal attack or criticism of the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward, and injure the authority of the court by too great leniency.” Maybe@ v. Pennsylvania, 400 U.S. 455, 464, 91 S. Ct. 499, 504, 27 L. Ed. 2d 532 (1971).
For all of the reasons stated above this Honorable Court should recuse itself from these proceedings and re-assign it to another Judge or refer it to the Illinois Supreme Court for re-assignment.
ROGER B. WEBBER, 6184986
BECKETT & WEBBER, P.C.
508 S. Broadway
Urbana, IL 61803-7160