McHenry County Blog

McHenry County Deputy Sheriff Zane Seipler’s attorney Blake Horwitz looked a bit like a cat that had swallowed the canary after the Monday hearing on Special Assistant State’s Attorney Bill Caldwell’s motion for sanctions.

Judge Thomas Meyer suggested Caldwell might want to go talk to his client and told Horwitz he didn’t have to file a brief.

You can read Monday’s article here.

Now I learn that his reticence was well-placed.

The County Board is backing off on its attempts to get paid for Special Prosecutor Caldwell and the time Assistant State’s Attorneys spent on the case.

Filing of the motion was authorized by County Board Chairman Ken Koehler. I have found no other County Board member who was consulted prior to the decision. Indeed several expressed outright surprise at not being consulted.

Seipler’s effort to get a Special Prosecutor named to investigate whether Sheriff Keith Nygren used taxpayer money to advance his re-election effort was filed shortly before Seipler lost the GOP primary election to Nygren.

Although McHenry County Board Chairman Ken Koehler seems to have made the decision on his own to seek sanctions against Zane Seipler and his attorney Blake Horwitz for seeking a Special Prosecutor to probe whether Sheriff Keith Nygren used tax dollars to promote his campaign, others on the Board might have some input as to whether to continue the case.

There was precious little time spent in Judge Thomas Meyer’s courtroom Monday.

Special Assistant State’s Attorney Bill Caldwell appeared on behalf of the County.

“My request is that you deny the motion,” Horwitz said. (The motion can be read here.)

“I’m going to pass. We’ll come back to it,” was the only comment I heard from Judge Meyer the first time around.

Horwitz and Caldwell went outside.

Maybe a half an hour later the two attorney’s against approached the bench with what appeared to be an agreed motion.

Explaining it, Caldwell said, “[It was Judge Meyer's] suggestion that I’m going to take it to the County.”

The First Electric Newspaper’s Pete Gonigam, the one who discovered that Koehler authorized the sanctions motion, asked if Caldwell were going to talk to Koehler.

“I’m going to talk to a bunch of people,” he replied.

Horwitz summarized what he told the Judge:

“The motion does not have merit. I’d like the court to dismiss it on its face.”

He added that Judge Meyer said, “You don’t need to file a response. We’ll be back here in two weeks.

He was referring to July 10th.

In the courtroom was Sheriff’s Deputy Zane Seipler, who ran against Nygren for the GOP nomination for Sheriff two years ago. The suit seeking a special prosecutor was filed shortly before the February primary election.

Judge Meyer refused to approve a Special Prosecutor. (See “Sheriff Keith Nygren Off the Special Prosecutor Hook, State’s Attorney Lou Bianchi Given Permission to Fish.”

Monday was one of his days off from working the night shift patrol.

You’ve heard of Special Assistant State’s Attorney Bill Caldwell’s motion seeking to have Zane Seipler and his attorney Blake Horwitz pay for the cost of defending McHenry County in Zane Seipler’s case seeking a Special Prosecutor to investigate Sheriff Keith Nygren, right?

I thought you might be interested in reading the entire motion, so I have reproduced it below:

STATE OF ILLINOIS )
) SS
COUNTY OF McHENRY )

IN THE CIRCUIT COURT OF THE 22nd JUDICIAL CIRCUIT
McHENRY COUNTY, ILLINOIS

IN THE MATTER OF THE PETITION FOR
APPOINTMENT OF SPECIAL PROSECUTOR,
ex rel. ZANE SEIPLER, Petitioner,

vs.

COUNTY OF McHENRY, Intervenor.

No. 10 MR 11

COUNTY OF MCHENRY’S MOTION FOR SANCTIONS

The COUNTY OF McHENRY, by Caldwell, Berner & Caldwell, LLP, (CBC) its attorneys, Petitions the Court for the entry of sanctions against both the Petitioner Zane Seipler and his attorney, Blake Horowitz, pursuant to Supreme County Rule 137, and in support of said Motion for Sanctions alleges as follows:

1. Prior to the appearance of CBC, the County was represented by the McHenry County State’s Attorney and the County is requesting that a sanction be entered for the time expended by the County’s State’s Attorneys in responding to the five Petitions that have been filed.

2. Supreme Court Rule 137 provides, in part, as follows:
“. . . The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. . .”

3. Seipler began this request for the appointment of a special prosecutor on January 13, 2010 based upon a six-paragraph Petition and an attached Affidavit of Zane Seipler.

4. The allegations in the original Petition were that the Sheriff had performed political activity while on duty and directed his deputies to perform political activities while on duty.

5. On December 27, 2010, Seipler filed a Notice of Motion and Motion for Leave to Supplement the Third Amended Petition to appoint a special prosecutor.

6. That Motion alleged that the record should be supplemented based upon the testimony of Deputy Scott Milliman alleging that Sheriff Nygren engaged in the solicitation of murder, trafficked illegal aliens from Mexico, covered up racial profiling, and participated in a payoff scheme with members of the McHenry County State’s Attorney’s office.

7. Attached hereto [see above] and made a part hereof as Exhibit 1 is copy of correspondence between Angela L. Byers, Assistant Special Agent in Charge of the FBI, on behalf of Robert D. Grant, the Agent in Charge, to Undersheriff Andrew Zinke indicating that the information provided by Deputy Milliman did not have “prosecutive merit.”

8. The Exhibits of the original Petition indicated that Seipler was referred to the Attorney General’s office or the State Board of Election by Assistant State’s Attorney Thomas Carroll on November 3, 2009. That Petition also contains a copy of a letter from Diane L. Salton, Executive Inspector General of the Office of the Attorney General, indicating that their allegations did not fit within the scope of their jurisdiction, and that she was referring it to the Public Integrity Division.

9. Attached to the original Petition was the October 1, 2009 correspondence to Zane Seipler from the State Board of Elections, Daniel White, Executive Director, indicating that although the allegations were made to them, they were referring it to their General Counsel Steve Sandvoss, for review.

10. Seipler’s multiple Petitions, including the Fifth Amended Petition, made the following allegations. The bracketed number in front of each of the following paragraphs reflects the number in the Petition. Below it is the County’s corresponding answer.

[3.] In approximately 2004, Keith Nygren created a seven star LOGO.

County’s Answer: The County denies the allegation contained in paragraph 3; for further answer, the County states that the seven star logo has been used by multiple agencies across the country and is not a creation of Sheriff Nygren.

[4.] There is an official logo of the McHenry County Sheriff’s Department – a five point star – which has been used by the Sheriff’s Department for over 20 years.

County’s Answer:
The County admits that the Sheriff’s office has used a five point star, but denies that it is the official logo; the County admits that the Sheriff’s Department has used that logo for many years but has insufficient information to form a conclusion as to the exact period of time that it has been used and therefore demands strict proof thereof.

[5.] Mr. Nygren created the LOGO on a computer.

County’s Answer:
The County denies the allegation contained in paragraph 5.

[9]. In 2004, Mr. Nygren intentionally created the LOGO to be used for his political campaign.

County’s Answer:
The County denies the allegation contained in paragraph 9.

[10.] Mr. Nygren intended to create the LOGO to forward his political campaign, meaning, to assist him in winning the election for McHenry County Sheriff.

County’s Answer:
The County denies the allegation contained in paragraph 10

[23.] The LOGO was placed on the Interior Wall pursuant to the order of Sheriff Nygren.

County’s Answer:
The County admits the logo is on the Interior Wall, but denies the balance of the allegations.

[26.] Mr. Nygren desired to have the LOGO affixed to the Interior Wall and Vehicles, so as to support his political campaign. It was the intention and desire of Mr. Nygren to cause the LOGO to be intermingled with the official LOGO of the Sheriff’s Department, so as to:
a. cause McHenry County budget to pay for campaign paraphernalia. . . .

County’s Answer:
The County denies the allegation contained in paragraph 26 and subparagraph(s) “a”.

[27.] Keith Nygren has requested that the LOGO be placed on McHenry County Official stationary.

County’s Answer:
The County admits the allegation contained in paragraph 27.

[28.] The LOGO has been placed on official McHenry County stationary.

County’s Answer:
The County admits the allegation contained in paragraph 28.

[32.] The Sheriff intentionally caused a LOGO that he created exclusively for his political campaign to be associated with and affixed to official property, paid for by the taxpayers, therefore allowing his own campaign to be promoted using McHenry County tax dollars.

County’s Answer:
The County denies the allegation contained in paragraph 32.

11. The County has been informed and therefore believes that there has never been an “official” star of the McHenry County Sheriff’s Department.

12. The County has been informed and therefore believes that on occasions prior to the election of Sheriff Nygren the Sheriff’s office has used seven-point stars.

13. That the San Jose Police Department has been using a seven-point star since the late 1800s and that they have been exclusively using the seven-point star from the 1900s to 1976, as indicated in the attached Exhibit 2.

14. That the County is informed and therefore believes that the seven-point star, and various versions thereof, have been used by multiple police departments for over 100 years prior to the allegations of the Fifth Amended Petition.

15. The signatures of the Petitioner Zane Seipler and Attorney Blake Horowitz on the Petition constitutes a certificate that to the best of their knowledge, information and belief, formed after reasonable inquiry, that the allegations about the five-point star and seven-point star are well-grounded in fact and warranted by existing law or good faith argument for the extension, modification and reversal of existing law; that the allegations are not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

16. The County believes that the Fifth Amended Petition was done solely for the purpose of harassing the Sheriff and the County. The following facts were well known prior to proceeding with the Fifth Amended Petition:
(a) The seven-point star has been a part of the public domain for over 100 years.
(b) That the five-point star was never an “official LOGO of the County.”
(c) That the Sheriff is vested with the absolute right to determine how his office is demonstrated to the County.
(d) That the argument concerning the five-point and seven-point star is solely a political argument interposed for the purpose of harassing the Sheriff.
(e) That the allegation that this is theft was without merit.
(f) That in the process of pursuing the appointment of a special prosecutor, Zane Seipler and his attorney have been advised that Milliman’s allegations had no prosecutive merit, and that they should submit their claims to offices other than the State’s Attorney.
(g) Plaintiff’s allegations have been reviewed by multiple governmental agencies and agents. They include the F.B.I., the Attorney General’s Office, the State Board of Elections, First Assistant State’s Attorney Thomas Carroll and State’s Attorney Donald Leist. All of those agencies have indicated that there is no prosecutorial merit to their allegations.

WHEREFORE, the COUNTY OF McHENRY prays that an Order be entered holding that the Petitioner SANE SEIPLER and his attorney, BLAKE HOROWITZ, have violated Supreme Court Rule 137 and that as sanctions for violating that Rule, that the County have and recover its attorney’s fees and costs.

Caldwell, Berner & Caldwell, LLP,
Attorneys for the County of McHenry, Intervenor,

By:
William I. Caldwell

William I. Caldwell Att Reg No: 0369381
Caldwell, Berner & Caldwell, LLP
100½ Cass Street, Woodstock IL 60098
Bus: 815-338-3300, Fax: 815-338-0015

The Northwest Herald has a story Saturday about Special Assistant State’s Attorney Bill Caldwell’s suing Sheriff’s Deputy Zane Seipler for his and the Assistant State’s Attorney’s fees in Seipler’s attempt to convince Judge Thomas Meyer to appoint a Special Prosecutor to investigate whether Keith Nygren used taxpayer resources to advance his political campaign.

From a quick reading of the article, it seems Caldwell’s theory is that Seipler’s case was purely political and had no substance.

The timing of its filing–right before the February, 2010, Republican primary election in which Seipler was challenging Sheriff Keith Nygren for the nomination–certainly was political.

But Judge Meyer gave no indication that he thought it was a frivolous suit.

I haven’t read the filing but, if the NWH’s description is an accurate representation of the new case, that’s a fascinating interpretation.

The decision was such a close call that neither side had any idea what the decision would be on the morning it was handed down.  One close to the Sheriff was heard worrying out loud before the court session that a Special Prosecutor would be authorized.

A number of attorneys read McHenry County Blog and I’m hoping some will give their opinion in the comment section of the chances of the County’s recovering the legal fees being sought.

One has shared the following with me:

“The American system, as it is legally known, does not provide for payment of attorney’s fees to the victor in a lawsuit.

“There are limited exceptions.

“Our system developed because the British system has a loser pay rule where a litigant’s wealth significantly influenced the end result.

“As a result, the British face significant risk in filing a lawsuit.

“We only allow for fees if provided by contract or by statute.

“In the case of seeking a special prosecutor there is no fee shifting.

“Hence, the government is unlikely to see a penny for fees.

“However, taxable costs can be recovered.

“Cost is the filing fees cost of copies, etc.”

So, attorney readers, do you agree with that interpretation or not and why?

Associate Judge Thomas Meyer ruled Wednesday that no Special Prosecutor was needed to probe alleged criminal activity of McHenry County Sheriff Keith Nygren.

He also ruled that the fears of McHenry County State’s Attorney Lou Bianchi that he might lose his law license because of a conflict of interest should he investigate and/or prosecute the Sheriff were unfounded.

Judge Meyer read his decision because “I’ve amended it so much in the last 24 hours.”

He put much emphasis on the lack of direction from the Illinois General Assembly, stating, “The Court is limited to the statutes,” which he ruled did not authorize the appointment of a Special Prosecutor in the circumstances before him.

Judge Meyer concluded that Bianchi’s decision not to investigate was within in his prosecutorial discretion, that he “decided to chose this course.”

It was the State’s Attorney’s “decision not to investigate..his discretion.”

Using as an example the State’s Attorney’s current prosecution of Sheriff’s Deputy Greg Pyle’s case, although not by name, just by the charge of “criminal predatory sexual assault of a child,” the Court pointed out that there was no “per se conflict,” as argued by Zane Seipler’s attorney Blake Horwitz.

“The State’s Attorney has not declined to be involved in the prosecution,” Judge Meyer stated.

The 27-month old case was brought by then-former Sheriff’s Deputy Zane Seipler in January, 2010, while he was running against Nygren for the Republican nomination for Sheriff.

After the decision, Bianchi’s Special Assistant State’s Attorney Bill Caldwell said,

“The County is very happy that we do not have another Special Prosecutor, especially as it relates to a 5-point or a 7-point star.”

Caldwell also said, “It’s teed up for the Appellate Court,” if Seipler decides to appeal.

Later, when Horwitz said he didn’t know if the case would be appealed, Caldwell interjected, “I love you, Blake.”

An appeal would mean more legal fees for Caldwell, of course.

After conferring with two Assistant State’s Attorneys in private, Horwitz stated,

“The Judge said very clearly Lou Bianchi’s office can prosecute criminal [conduct. There's] no conflict.

“The only question is whether the State’s Attorney [will do so].”

Referring to the evidence that could be investigated, Horwitz said, “There’s much more [than using taxpayer dollars to advance the Sheriff's political campaign].

“He doesn’t need a private citizen to tell him what to do.

“The State’s Attorney can prosecute [Sheriff Nygren].

Bianchi was represented most recently by Special Assistant State’s Attorney Bill Caldwell. Previously Donald Leist, who has since moved over to the Sheriff’s Department as Affirmative Action Officer, represented the State’s Attorney, for whom he worked.

Appearing before the court session began was Bianchi Special Prosecutor Henry Tonigan. When I asked if he was there to be “an expert witness,” he replied that he was not, that he just happened to be in the courthouse on other business.

Wednesday afternoon, Associate Judge Thomas Meyer heard testimony from McHenry County State’s Attorney Lou Bianchi about the “conflict of interest” that Bianchi sees in representing Sheriff Keith Nygren in some seven suits and preparing 4-5 opinions and at the same time investigating, indicting and prosecuting him.

Bianchi based his position on the Rules of Conduct for Illinois attorneys, which basically says that an attorney can’t both defend and prosecute a client.

With little variation, that was the State’s Attorney refrain throughout the afternoon court session.

When asked whether specific criminal allegations, e.g., use of taxpayer dollars to use a 7-pointed star for political purposes or the more general use of public funds to promote his political career, would result in action on his part against the Sheriff, Bianchi’s repeated reply was.

• “I will not” and
• “It would be unethical to do so.”

There were variations on those answers, but all had the same meaning:

Bianchi will not investigate Sheriff because it would be an ethical lapse that would put his law license in jeopardy.

Five specific situations beyond the use of public money to affix a star that seemingly started out as a campaign symbol were presented by Horwitz to Bianchi for a reply as to whether he would investigate them, if allegations were brought to his office:

1. 

   Blake Horwitz

   The illegal transportation of Hispanics from Mexico to McHenry County

2. Solicitation of murder of Judge [Conrad] Floeter
3. Solicitation of murder of David Bachmann
4. Conspiracy with Jose Rivera in the generation of fraudulent loan documents
5. Causing dismissal of criminal allegations brought against drivers who were driving vehicles in McHenry County

At one point during the hearing, Deputy Sheriff Zane Seipler’s attorney Blake Horwitz said,

“Then the Sheriff gets a free ride by virtue of his position.”

Judge Meyer seemed to make it clear that the 7-pointed star issue was what was under consideration and not the other issues that Horwitz advanced.

As Horwitz said, “I think I’m done,” Bianchi broke out in a broad smile.

When Special Assistant State’s Attorney Bill Caldwell got his turn, he seemed to be trying to show the Judge that Bianchi made a conscious choice not to initiate any criminal probe of Nygren.

It is obvious that State’s Attorneys have great discretionary power. Perhaps, Caldwell was trying to emphasize that fact.

Consider this question and answer:

Caldwell: “You are able to pass your preferences as it concerns Mr. Seipler’s petition?

Bianchi: “I never looked at the merits. The question came and I couldn’t do it.”

After the attorneys finished their cases in the 27-month trial, Judge Meyer said, “I’m going to do some of my own research.”

He seemed to think he might be able to do in a short period of time and render a decision later in the afternoon, but after 15-20 minutes he returned to his courtroom and announced he had no decision.

Judge Meyer set the next court date for April 25th, the same day as he will handle Horwitz’ request for sanctions against Nygren’s personal attorney Mark Gummerson.

Neither principal were in attendance. Nygren sent his new Affirmative Action Officer Don Leist, who moved over from the State’s Attorney’s Office. Seipler has friends but, apparently, was on the job he regained after a long, drawn-out challenge by Nygren to an arbitrator’s decision re-instating him as a Deputy Sheriff.

Below is some of the evidence relating to the morphing of the 7-pointed star from a campaign symbol to a logo for the Sheriff’s Department:

Silly me.

I thought that the over two-year journey to see whether Associate Judge Thomas Meyer would appoint a Special Prosecutor to look into allegations of wrong-doing by McHenry County Sheriff Keith Nygren would be over today.

Instead Meyer dismissed all the motions before him, including the first, short one filed by Special Assistant State’s Attorney Bill Caldwell which asked the Judge to make a decision on whether a Special Prosecutor should be appointed, considering it was in his discretion.

After clearing the decks of the tortuously argued motions, the Judge set a trial for April 25, 2012, at 10 AM.  [Gus Philpott notes that the evidence will be take at 1:30 that afternoon.]

At that trial McHenry County State’s Attorney Lou Bianchi may be on the stand.

That apparently would not be necessary if Zane Seipler’s attorney Blake Horwitz had been willing to stipulate to the contents on the deposition which Horwitz, Nygren’s personal attorney Mark Gummerson, and Caldwell conducted.

Nygren is no longer a party to the case.

Apparently in questioning of Bianchi, Horwitz will be able to ask about Bianchi’s availability to prosecute specifically named crimes, solicitation to murder seeming to be the most serious.

But Judge Meyer stressed, “I’m not going to take evidence on specific crimes.”

Caldwell mentioned a letter that Horwitz had written.

“His letter may well add context to specific (allegations),” Judge Meyer replied.

Before orally denying all the motions, Meyer said, “I need that testimony,” adding later, “The only was to resolve this is witness testimony.”

Prior to adjourning, Judge Meyer entered into the record an encounter he had with Nygren “on official business” in a private judicial corridor.  Something about “security.”

He “was there to see another judge…it was only in passing that I knew he was here.  I told him I think it would be more appropriate if you did not come into my chamber.”

The issue of sanctions requested by Horwitz against Gummerson will be up in court next on April 11th at 11:30.  [Gus Philpott notes that it is now set at 1:30.]

= = = = =

Out in the hallway Horwitz expressed his extreme displeasure at the article the Northwest Herald reporter had written about Zane Seipler’s reinstatement in his job as Deputy Sheriff after an almost four-year court marathon in which Sheriff Nygren refused to accept

• the arbitrator’s decision,
• Judge Meyer’s Administrative Review decision upholding the arbitrator’s decision,
• the 2nd Appellate Court’s ruling upholding Judge Meyer’s decision upholding the arbitrator’s decision.

Finally, when the Illinois Supreme Court’s refused to review the 2nd Appellate Court panel’s decision, Nygren made as many other delaying moves as the law allowed.

The arbitrator ruled that Seipler deserved a three-day suspension for doing something similar to what a Nygren favorite did and got such a punishment.

I didn’t write an article on the story, but did comment on how the online headlines got harsher the second day the story was posted.

= = = = =

As I’m driving back to Crystal Lake, going through my head was the Beatles 1970 song, “Long and Winding Road.”

Any wonder why?

The big news out of Judge Thomas Meyers’ courtroom today is that he announced he will render a decision on March 26.

That’s the first day of Spring Break for Crystal Lake Grade School students, probably of bigger importance to them than whether Meyer decides to name a Special Prosecutor to investigate whether Sheriff Keith Nygren spent tax dollars to advance his campaign by putting six-sided stars, used first in his campaign, all over the Sheriff’s Department.

The Judge, however, continues not to be interested in whether a crime has been committed, but, rather, whether a conflict exists on McHenry County State’s Attorney Lou Bianchi’s part that would justify naming someone to stand in his stead and see whether Nygren deserves to be indicted.

There were arguments that appeared arcane to this non-lawyer.

It comes down to the fact that Meyer has the discretion to appoint a Special Prosecutor if he wants to.

But, he doesn’t have to.

No doubt about that.

 

Zane Seipler won a victory over former employer Sheriff Keith Nygren Thursday.

Nygren is the man who fired Seipler and against whom Seipler ran unsuccessfully in the Republican primary election almost two years ago, plus filed a wrongful termination action in Federal Court and an appeal to an arbitrator under his union’s contract on which he has prevailed on three levels so far.

The judge in the case, Thomas Meyer, is the same judge who ruled that Nygren should follow an arbitrator’s order and re-hire Seipler.  That ruling has been upheld by the Appellate Court, but Nygren has appealed the case to the Illinois Supreme Court.

Judge Meyer reversed his ruling to allow Nygren’s participation in Seipler’s effort to get a Special Prosecutor to investigate the possibility of criminal wrong-doing on the part of the Sheriff.  Previously, he has indicated that he didn’t know if he had made the correct decision.

Meyer had allowed Nygren to participate in the case in which Seipler was seeking the naming of a Special Prosecutor to probe, to put it in Seipler attorney Blake Horwitz’ words after the Thursday hearing,

• felony theft
• official misconduct
• misappropriation of funds

Horwitz alleged the crime Nygren committed was “stealing public money to promote [his] private interest [that is, Nygren's campaign].”

“That is not a dispute about points on a star anymore than mail fraud is about “putting a stamp on a letter.”

There were seven attorneys in Judge Meyer’s courtroom with an interest in the case.

Four took part in the proceedings:

• Nygren’s personal attorney Mark Gummerson
• Gummerson associate Rebecca Lee
• Special Assistant State’s Attorney William Caldwell
• Seipler attorney Blake Horwitz

In addition, two attorneys were watching the proceedings:

• Assistant State’s Attorney Donna Kelly, the person who advised State’s Attorney Lou Bianchi in his deposition and
• Don Leist, now working for Nygren in the capacity of Equal Opportunity Employment Officer with “other duties as may be specifically assigned to the EEO by the Sheriff, included but not limited to performing any mandated or permitted function of action allowed to be performed by the EEO or by the Sheriff,” according to the job solicitation.

In addition, attorney Robert Hanlon, who represented Seipler at the last hearing, was in attendance.

Also in the room were Nygren, sitting next to his new in-house attorney and Seipler, who sat behind Nygren.  The Sheriff left the room after the Judge ruled against his continued participation in the case.

Much of the day’s arguments were about difficult to understand civil practice questions.  The technicalities were pretty impossible to follow without the statutory citations.

Resolving them leads to “the last stage of the case,” Horwitz explained.  “We’ve gotten through all the procedural hurdles,” characterizing the almost two-year case as “not ordinary litigation.”

Prior to rendering his decision, Meyer said, “I have [had] serious concern about the direction in which case is going, but that has been resolved.”

The Judge then said, “I have no alternative but to strike Sheriff Nygren’s [ability to intervene].”

Efforts by Caldwell to argue that the merits (or lack thereof) of any criminal case and that the issue should be settled in the political arena were short-circuited by the Court, who was determined to stick to whether the State’s Attorney’s position matched those which would allow the appointment of a Special Prosecutor.

“I’m not going to investigate the Sheriff,” Meyer said, indicating that would be the job of a Special Prosecutor, if one were appointed.

Caldwell made his point, indicating he wanted to preserve the issue for appeal purposes.

Horwitz summarized Bianchi’s position that he would not investigate Nygren because, if he did, those suing the Sheriff or his Deputies could claim the State’s Attorney had a conflict, forcing Bianchi to hire outside attorneys a practice he promised to virtually eliminate when he ran for his office seven years ago.

Horwitz also pointed out that by appointing the Appellate Prosecutor as the Special Prosecutor it would cost county taxpayers no more than they are already paying.

After considering the arguments in chambers, Judge Meyer denied another motion to dismiss Seipler’s case observing,

“[We're] probably at a point where we can move to a resolution of this matter.”

“A decision on the merits?” Caldwell asked.

That was what the Judge had decided.

Attorneys will return in January and February.

“We don’t want a motion for sanctions hanging over our heads,” Gummerson interjected, saying, “We’re ready to argue [now].”

Lee referred to a second motion for sanctions which she said was “clearly on is face designed to harass Mr. Gummerson.”

The Judge gave time to everyone to reply to the others’ motions, as well as to further brief the case, if they wished.

Such arguments should be limited to “the statutes,” Judge Meyer said.

The Judge ordered that parties to the Bianchi deposition be given a copy of the audio recording.

McHenry County State’s Attorney Lou Bianchi could be ordered to tell the public whether he ever investigated Sheriff Keith Nygren for “criminal conduct,” if Blake Horwitz, Zane Seipler’s attorney in his effort to get Judge Thomas Meyer to name a Special Prosecutor to probe whether Nygren used taxpayer resources to advance his campaign, gets his wish.

In a motion filed Friday, Horwitz cited the following unanswered question from Bianchi’s recent deposition:

Q – During the time period that you’ve been a state’s attorney for McHenry County, has your office ever investigated criminal conduct attributable — or allegations of criminal conduct attributable to Sheriff Nygren? [Emphasis added.]

MS. KELLY: Objection, Judge — Objection, relevance.

Blake Horwitz

MR. CALDWELL: Objection, way outside the scope of what the judge just told us. We’re here on Section 9008.

MR. GUMMERSON: I would agree and join in the objection.

MS. KELLY: Don’t answer that question.

MR. HORWITZ: You’re not going to let him answer?

MS. KELLY: No.

MR. HORWITZ: Okay.

“The question was never answered,” Horwitz notes in his motion.

“Petitioner believes that this Court instructed the parties to inquire whether the Office of State’s Attorney can and/or does investigate and/or prosecute the Office of the Sheriff. The pending question is directed at ascertaining the answer of this information.

“Petition requests a ruling on whether this question must be answered and if so then to direct the State’s Attorney to answer the question posited.”