McHenry County Blog

During the Monday morning hearing before Associate Judge Thomas Meyer, he referred to a letter that Zane Seipler attorney Blake Horwitz had sent McHenry County State’s Attorney Lou Bianchi.

Because what is mentioned in the February 1, 2011, letter may be brought up in questioning of Bianchi, should he testify in the trail to determine his availability to investigate Sheriff Keith Nygren on allegations brought forward by Seipler in his effort to get a Special Prosecutor named, McHenry County Blog reproduces the letter below:

Blake Horwitz

Besides the allegation of the 7-pointed campaign star being placed on county property tax taxpayer expense, other questions involve whether Bianchi’s office would investigate and, if probable cause is found, prosecute Nygren for allegations

• “relative to the solicitation of murder concerning Judge [Conrad] and David Bachmann”
• “relative to Illegal transportation of Hispanic from Mexico to McHenry County”
• “referable to conspiring with Jose Rivera in the generation of fraudulent loan documents”
• “referable to conspiring with Jose Rivera to cause the dismissal of criminal allegations lodged against drivers”

Horwitz’ letter also asks Bianchi if the following statement is accurate:

“There is a policy at MCSA to not prosecute or investigate Sheriff Nygren as he is client of the MCSA.

“Sheriff Nygren is a client of the MCSA in civil cases. To prosecute or investigate Sheriff Nygren while he is
also a client in civil cases would create a conflict.

“If the MCSA had to withdraw its appearance on behalf of Mr. Nygren in connection with the civil cases, there would be significant costs to tax papers as private counsel would most likely have to be employed to defend Mr. Nygren. The costs of private counsel can be expensive.”

This is the final installment of Zane Seipler’s attorney Blake Horwitz’ request that sanctions be levied against McHenry County Sheriff Keith Nygren for actions taken by Nygren, his staff and his attorney James Sotos.

Paragraphing and formatting has been added in the text to make the text easier to read on a computer screen as we move to the sanctions that are requested.

Concluding the court filing is a plea for

“Sanctions

“Defendants’ conduct warrants a Rule 37 sanctions in the form an entry of a default judgment against Defendants and/or a ruling as to their affirmative defenses. Fed. R. Civ. P. 37 authorizes the court to sanction a party for failing to obey an order or ruling to provide discovery. Fed. R. Civ. P. 37(b)(2)(A).

“Such sanctions may include

• ‘prohibiting the disobedient party from supporting . . . designated . . . defenses,’
• ‘striking pleadings in whole or in part’ or
• ‘rendering a default judgment against the disobedient party.’

“Fed. R. Civ. P. 37(b)(2)(A)(ii), (iii) and (vi); see also Newman v. Metropolitan Pier & Exposition Auth., 962 F.2d 589, 591 (7th Cir. 1992)(approving entry of default judgment as sanction for defendant’s failure to comply with orders).

“For purposes of Rule 37(b) sanctions, “order” or ‘ruling’ are broadly construed. See Brandt v. Vulcan, Inc., 30 F.3d 752, 756 (7th Cir. 1994).

“A formal, written order by the court is not required. See Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992)(Rule 37(b) sanctions imposed on party that engaged in ‘evasive and dilatory discovery tactics’). Also see Godlove v. Bamberger, 903F.2d 1145, 1148 (7th Cir. 1990) (granting the Court broad discretion); Thomas Consol. Indus., Inc. v. Herbst, 456 F.3d 719, 724 (7thCir. 2006) (citing Maynard v. Nygren, 332 F.3d 462, 467-68 (7th Cir. 2003).

Also see Sameron v. Enter. Recovery Sys., Inc., 579 F.3d 787, 795 (7th Cir. 2009) (tendering sensitive documents to a member of the press demonstrates a willful violation).

“Sheriff Nygren misrepresented himself to this Court to induce this Court to believe that he had not tendered the deposition transcript to the Northwest Herald.

“This misrepresentation can result in severe sanctions. Montaño v. City of Chicago, 535 F.3d 558, 564 (7th Cir. 2008).

“Regardless of the Nygren fraud upon the Court, Sheriff Nygren and the other officers, including Defendant Miller, clearly tendered the deposition transcript to third parties (Zinke, Rivera and Ellis).

“The parties, as officers, knew that the deposition was confidential and sensitive but flaunted that knowledge and did what they wanted. The intent and motive is clear – if you speak out against the Sheriff, you will be punished.

“The distribution of the confidential police report preceded the Milliman episode.

“The distribution violated Illinois Statutory law. 20 ILCS 2630/7.

“The Sotos firm received the document and the Defendants distributed it to fellow officers to taint their perspective of Mr. Seipler.

“Terminating sanctions is appropriate for flagrant violation of this Court’s order. Greviskes v. Univ. Research Assoc., Inc., 417 F.3d 752, 754 (7th Cir. 2005).

“The above record demonstrates that terminating sanctions is in order.”

Judge Frederick J. Kapala will be the one to decide on both McHenry County Sheriff Keith Nygren’s attorney’s request for sanctions against Zane Seipler and Seipler’s attorney’s counter request against Nygren.

This is the third article exploring the counter motion for sanctions filed by Zane Seipler attorney Blake Horwitz.

It claims that defendant McHenry County Sheriff Keith Nygren released confidential information three times in violation of a court order by Magistrate Michael Maloney in Seipler’s wrongful termination suit.

Paragraphing and formatting has been added in the text to make the text easier to read on a computer screen.

The court filing continues.

“Perjury – Direct Evidence

“In developing their deceit attributable to the dissemination of the sensitive Milliman deposition, Sheriff Nygren and the Undersheriff misrepresented their interaction with Jose Rivera, the alleged criminal co-conspirator.

“Sheriff Nygren represented, in a sworn affidavit that Mr. Rivera called Sheriff Nygren and spoke to him regarding the Milliman Deposition and a subpoena Rivera received for deposition (Exhibit A).

“However, Mr. Rivera did not speak to the Sheriff at all regarding the deposition or a subpoena.

“The Sheriffs facts are wrong.

“Mr. Rivera testified that he called regarding the article and spoke to Undersheriff Zinke and not Nygren.

“The evidence shows the misrepresentations to this Court.

“The Sheriff’s Affidavit

Keith Nygren

“3. On or about December 10, 2010, I spoke to Jose Rivera over the telephone. He called me and told me that he had received a deposition subpoena to testify in Seipler v. Cundiff et al…

“4. Mr. Rivera asked me if I knew why he was served with a subpoena and if I knew what he would be asked during the deposition.

“5. I told Mr. Rivera that I believed he received a subpoena because of Deputy Milliman’s deposition testimony. I told Mr. Rivera that instead of me trying to explain Milliman’s testimony, I thought it would be best if he read the transcript in order to answer his questions….(Exhibit A, Also filed as Dkt. No. 170-7, January 20, 2011)

“Jose Rivera never spoke to Sheriff Nygren regarding a deposition or a subpoena. Instead, he called the Sheriff’s department and spoke to the Undersheriff regarding the article he read in the newspaper. This is shown in the following excerpts:

“Rivera Deposition

“The reason for his call to the department was for the article he read:

“And the reason why you called the sheriff’s ·department was exclusively limited to the fact that you ·read an article or you heard about an article in the paper, which one?
A.· ·Correct.· I read the article in the paper.
Q.· ·In the Northwest Herald?
A.· ·Correct.
(Exhibit G, pg 72-73)

“Mr. Rivera did not speak to the Sheriff regarding the Milliman Deposition:

Q: Tell me if this is true or false:· Sheriff Nygren spoke to you at some time with regards to allegations that Scott Milliman gave in a deposition.
A.· ·No.· He just mentioned that he was going to go ·to a, what you call it, what we’re doing here, a ·deposition.· But because that was the only — But he didn’t discuss basically what was going on.
Q.· ·Sheriff Nygren at some time talked to you about a deposition you were going to give?
A.· ·No.
(Exhibit G, pg 76-77)

“And:
Q.· ·Have you spoken to Sheriff Nygren about any of the allegations that were lodged by Scott Milliman at any time?
A.· ·No.
(Exhibit G, pg 74)

“Mr. Rivera called and spoke to Undersheriff Zinke, not the Sheriff.
Q.· ·How is it you got it from Zinke?· Did he say,’Hey, I’ve got something to give you,’ or do you have this meeting arranged?
A.· ·Basically when I read in the newspaper what was going on, I basically, you know, talked to him.
Q.· ·Talked to Zinke?
A.· ·Yes.· And so he gave me a copy of that.
Q.· ·Did you ask him for a copy?
A.· ·Yes.
Q.· ·Did he offer to give it to you, or did you ask him first?
A.· ·He gave it to me.
(Exhibit G, pg 33-34)

“And;
Q.· ·What caused you to call Zinke?
A.· ·Basically I saw what the accusation of ·Zacatecas, something like that.· I’m, like, ‘What is ·going on?’· So I went in, and he explained to me that basically my name was mentioned on the transcript, and that’s when basically I asked him for a copy.
(Exhibit G, pg 35)

“And;
·Q.· ·Did you say, “Hey, can I get a copy of the transcript,” or did he offer first and say, “I’ll give it to you,” or whatever?
A.· ·I asked him if — When he mentioned that my name appeared, basically at that time, I asked him if I can get a copy of it.
(Exhibit G, pg 33)

“And;
Q.· ·Okay.· So you called him up and asked if you could get a copy?
A.· ·Yes.
Q.· ·And what did he say to you?
A.· ·To — Yes, basically.· I got a copy.
Q.· ·He said yes, he’ll give you a copy?
A.· ·Correct.
Q.· ·Or he said ‘Yes, I’ve got a copy’?
A.· ·He told me, ‘Yes.· Just come in and pick up a ·copy.’
Q.· ·So you came in?
A.· ·Correct.
(Exhibit G, pg 34)

“Based on the above, Rivera did not speak to the Sheriff, but Zinke. Rivera did not speak to the Sheriff or call regarding a ‘subpoena for deposition’ he received but to inquire to Zinke as to the article. He spoke to Zinke regarding the transcript and subsequently obtained same.

“The nature of the deceit can also be established by a quick admission Rivera let slip:
Q.· ·Okay.· Did he [Zinke] ever mention to you that the deposition was protected or under protective order?
A.· ·He mentioned it was confidential; but because my name was in it, if I wanted a copy, I could get a copy.· So I got a copy.
(Exhibit G, pg 35)

“The sworn affidavit of Sheriff Nygren compared to the sworn testimony of Jose Rivera demonstrates Sheriff Nygren’s misrepresentations to this Court.

“The misrepresentations were designed to induce this Court to believe that Sheriff Nygren did not tender the transcript to the Northwest Herald or inappropriately to any other third party.

“The credibility of that position is undermined by reviewing the testimony.

“The obvious contradictions call into the question how, when and why the transcript was disseminated to third parties.

“The manner in which Mr. Rivera received the transcript was not truthfully communicated to this Court.

“Lastly, it is abundantly clear that the mere tendering of the transcript to Mr. Rivera (and other officers) was a knowing violation of this Court’s confidentiality order.”

= = = = =
More tomorrow.

This is Part 2 of former Deputy Sheriff Zane Seipler’s lawyer Blake Horwitz’ request for sanctions against Sheriff Keith Nygren.

This motion was filed in response to a request for sanctions against Seipler by Nygren attorney James Sotos in Seipler’s Federal wrongful termination case.

Most of the post consists of direct quotes from the Seipler motion for sanctions.

“Plaintiff asks that his Court entertain a dispositive disposition in connection with this motion in the form of default and/or the striking of affirmative defenses,” the introduction of the filing reads.

Circumstances of the three instances of Defendants’ alleged violation of the Court’s Protective Order are then discussed. (Paragraphing and formatting has been added to make the text easier to read on a computer screen.)

“Milliman Transcript

“The Defendants submitted confidential and/or sensitive materials to third parties. Scott Milliman testified that Sheriff Nygren and Jose Rivera committed serious crimes, as this Court may remember. The transcript was tendered to

• non-party civilian Jose Rivera,
• Sgt. Ellis and
• Undersheriff Zinke (Exhibit A) and
• a reporter for the Northwest Herald.

“In the Herald’s expose, a scathing editorial was drafted, comparing Scott Milliman to a Sesame Street character (Exhibit B). The Herald’s attack is now available for all to see since December of 2010.

“A quick review of the article demonstrates its chilling effect on any other officer who could and/or would testify in this matter.

“Five officers have come forward and testified, under oath, that they were fearful of testifying in this cause due to the repercussions of testifying against Sheriff Nygren [Foot Note 1].

= = = = =
Foot Note 1 – “Deputies Gerald Bodden, Cynthia Matteson, Timothy Matteson, Scott Milliman and Jill Tutt. Scott Milliman was terrified during his deposition. He was afraid that he too was going to be killed for his testimony. His eyes watered and had difficulty answering certain questions. If Defendants contradict this representation, Plaintiff’s counsel shall order the transcripts and demonstrate same to the Court. Plaintiff seeks to limit public dissemination of this information due to the fear these officers experienced in the depositions.”
= = = = =

“Their fears were justified.

“The transcript was tendered to three nonparties and the Northwest Herald. Milliman was fired for his comments.

“Further, there can be no justification for tendering a transcript concerning alleged criminal activity to a purported coconspirator in crime (Jose Rivera). This is particularly true and obvious as applied to a Sheriff’s Department. To be clear, the Court’s Confidentiality Order required non-dissemination:

“’Confidential Matter [includes] … information that is of a sensitive or non public-public nature regarding …. Defendants, non party witnesses…’ (Exhibit C). This Court now has direct evidence of a willful disregard for this Court’s authority. The affidavits (Exhibit A) speak for themselves…

“Blake Horwitz certifies that he received the Milliman transcript on January 20, 2011, via e-mail and did not disseminate the transcript to anyone. Jensen Court reporters, via Laura Davis, state that the transcript was tendered to Defense Counsel on December 7, 2010.

“Circumstantial evidence demonstrates that Defendants tendered the transcript to the Northwest Herald. Just as it published a scathing review of Deputy Milliman, the Herald is a weekly mouthpiece for the Sheriff, espousing his point of view on a variety matters, including this litigation.”

= = = = =

More tomorrow.

McHenry County Undersheriff Andy Zinke has raised $8,640 with a number of $250 contributors listed on his quarterly report filed October 17, the last day for filing.

He spent a bit over 10% of that amount, leaving him about $7,750 in the bank.
At the $250 level are the following:

Undersheriff Andy Zinke confers with McHenry County Board member Mary Donner at the September meeting of the Nunda Township Republican Central Committee.

• John J. Smith, McHenry
• John W. Cederlund, Union
• Ronald Bean & Janet Bean Trust, Lake in the Hills
• Jo Ann Wright, Crystal Lake
• Steven Neidenberg, McHenry
• Kenneth G. Cabay, Lake in the Hills
• Process Engineering Group, Prairie Grove
• Richard W. Graves, Spring Grove
• Tim A. Lane, Chicago
• Alpha Secutiry, LLC, Johnsburg
• Keith C. Wagner, McHenry
• Jose Rivera, Woodstock
• Laura Perez, Kildeer
• Citizens for LeFew, Harvard
• Citizens to Elect Sheriff Nygren, Woodstock

Citizens to Elect Bob Miller, Cary, contribute $500.

Expenditures large enough to list are

• McHenry County Friends of NRA – $360
• Light Center Foundation of Union – $150

The document just filed does look exactly as I received it (different formatting), but I bet some readers will find it interesting.

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION

Zane Seipler

ZANE SEIPLER,
Plaintiff
V.
CAPTAIN ANTON CIINDIFF,
LIEUTENANT JOHN MILLER #1431,
LIEUTENANT WILLIAM LUT Z,
SERGEANT POPOUTS, KATHLEEN
SIETH, KEITH NYGREN, individually and in
his offrcial capacity as SHERIFF OF
MCHENRY COUNTY, and the COUNTY OF
MCHENRY, Defendants.

JUDGE KAPALA
MAGISTRATE MAHONEY
No.08-cv-50257

PLAINTIFF’S MOTION FOR MISCELLEANOUS RELIEF

NOW COMES the Plaintiff Zane Seipler, by and through his attorney, Blake Horwitz of The Blake Horwitz Law Firm, Ltd., and respectfully requests this Court to grant Plaintiffs Motion. In support of same, Plaintiff states the following:

1. Many matters need to be resolved. Plaintiff shall try to succinctly point out the material issues.

Keith Nygren

2. The deposition of Sheriff Nygren completed on August 30, 2011. The deposition was to take place for an hour. During the deposition, Defense counsel gave lengthy objections intended to use up precious deposition time and the Deponent, an experienced witness, feigned confusion over simple questions.

At the end ofthe deposition, Plaintiff’s counsel sought out three additional minutes of questioning with regard to the racial profiling and acts of misconduct of officers.

The Sheriff walked out of the deposition, encouraged by his counsel Mr. Sotos.

Plaintiffs counsel requested three more minutes of questioning on five occasions and called this Court for intervention. The Court was not available but a record was made. Plaintiff prays that this Court allow five additional minutes of questioning and that Defense counsel be ordered to refrain from lengthy speech
objections.

Plaintiff also prays for costs/fees in connection with the prosecution of this matter.

3. Plaintiff filed an emergency motion to move the August 31,2011 status date so that the parties could take two depositions on said date: Jose Rivera and Captain Cundiff. The dates for Captain Cundiff were limited, pursuant to the dates ofFered by Defense counsel.

Plaintiff proffered August 31, 2011, after the Rivera deposition, however, Defendants declined, arguing that August 31, 2011 status date can not be moved absent a Court order and Defendants were unable to agree to move the date. Plaintiff submitted an emergency motion but learned from speaking to this Court’s minute clerk that this Court will not entertain emergency motions over the telephone. Hence, Plaintiff presents said motion in the instant submission.

4. The deposition of Deputy Tim Matteson began and was continued, mid-way through at the request of defense counsel, so that other depositions could be taken. The other depositions were taken and completed; however, Deputy Matteson’s deposition was not completed. Plaintiff seeks to complete the deposition of Tim Matteson.

Additional Discovery Concerning Jim Sotos and Elizabeth Barton

5. Unfortunately, hidden from Plaintiff s counsel was a recent revelation that grew out of the Deposition of Sheriff Nygren (yesterday) and Commander Cedergren (the day before). This Court is well aware of the internal investigation that was undertaken relative to the 51 officers.

James Sotos Associate Elizabeth Baron leaving Federal Court in Rockford.

Jim Sotos and Elizabeth Barton (Defense Counsel) guided, managed and/or organized this investigation. The Defendants sought out and secured the services of Mr. Sotos and Ms. Barton to learn how a racial profiling investigation should be performed. Mr. Sotos provided a 30-45 minute presentation on this score in the first
meeting that Defendants undertook to sort out the racial profiling issues. Ms. Barton was present during this meeting. Subsequently, Mr. Sotos and Ms. Barton counseled Cedegren and Patanaude to guide them through the process of investigating the racial profiling that took place in this case. The record could reflect up to 50 telephone calls between Ms. Barton, Cedegren and Patanaude, in connection with the investigation.

6. With regard the results of the investigation, in the face of obvious evidence to the contrary, there is little mystery to the ultimate conclusion that was reached – that racial profiling did not occur asto any oflicers in the department.

7. There were of course, other law firms in the Chicago-land area that were available to Sheriff Nygren. Only the Sotos fum was chosen. The Sotos firm represents Sheriff Nygren and the other high ranking Defendant Ofhcers, in the pending litigation only.  The Sotos firm has no other litigation pending with these Defendants.

8.  Peculiarly, Defense counsel has inserted themselves as witnesses to this cause (for a fee) by manipulating facts and directing the large scale investigation. Perhaps this was the only way that the internal (versus external) investigation could be performed pursuant to the desires and goals of the Sheriff. Discovery on this score must be conducted.

9.  Plaintiff has requested a date for the deposition of Mr. Sotos and Ms Barton, by way of informal written correspondence, so that Defense counsel can submit their own dates and secure counsel of their choosing. Plaintiff has also requested that certain items be produced by way of request to produce (Exhibit A).

McHenry County Sheriff Keith Nygren Defense Counsel James Sotos on TV.

10. The depositions of Defense counsel is material to this case. The internal investigation, directed by these attorneys, was a sham. Though work was clearly generated relative to the misconduct of officers, the investigation was designed to hide and cover-up the true nature of hundreds of falsified tickets generated by Oflicer Bruketta – an officer that Plaintiff accused of racial profiling long before his termination. As of this day, Mr. Bruketta, enjoys a delightful increase in salary and promotion while the Plaintiff suffers from a long term job loss.

Defendants Pending Motion for Sanctions

11.  Regarding another matter, Defendants have filed a motion for sanctions, perjury, dismissal and costs. Defendants are still engaging in discovery on this score with regard to additional subpoenas (Yahoo, Comcast). Defendants will try to boot strap new arguments into their reply brief in connection with subpoenaed information they uncover.

Zane Seipler Attorney Blake Horwitz on television.

Plaintiff asks that this Court regulate this process and order Defendants to generate one submission in connection with their opening brief wherein the submission contains all the evidence relative to their motion. Plaintiff requests that only at that time should he be required to submit a response brief. Plaintiff was ordered to respond to the Defendants’ motion in 14 days, Plaintiff now seeks additional time to respond, given Defendants subsequent subpoena requests.

12.  Lastly, Plaintiff asks for a protective order in connection with the subpoenaed material.  Defense counsel, Jim Sotos has agreed to Plaintiff’s request. In their subpoenas, Defense counsel has requested the e-mail communications that have been generated by Mr. Seipler, the Plaintiff. Mr. Sotos, in a recent conversation with Blake Horwitz, Plaintiffs counsel, has agreed to limit the depositions to information not relating to e-mails. Hence, Plaintiff requests that this Court enter an order accordingly.

WHEREFORE, Plaintiff respectfully requests that the Court grant this Motion and provide any alternative relief deemed just under the circumstances.

Respectfully submitted,

/s/ Blake Horwitz

Blake Horwitz
One of Plaintiffs Attorneys
The Blake Horwitz Law Firm
Two First National Plaza
39 SouthLaSalle, Suite 1515
Chicago, Illinois 60603
Telephone: (312) 67 6-2104

December 24th, McHenry County Blog ran the first part of the December 15, 2010, transcript of a Rockford hearing before Magistrate P. Michael Mahoney.

December 25th, the second part was published with the third installment published Sunday. Part 4 went up Monday and Part 5 Tuesday.

This is Part 6.

As that part of the transcript posted yesterday was ending, McHenry County Sheriff’s Department Attorney James Sotos was asking if he could respond and Federal Magistrate P. Michael Mahoney was agreeing. For context reasons, I repeat those two lines, which the next part of the transcript follows.

MR. SOTOS: Judge, can I respond to this –

THE COURT: Yeah, you sure can.

MR. SOTOS: — aspect of it? Because this is going to require a little bit of background. I’ll be as brief as I can.

You know, we conducted discovery because we took the court at its word back a year and a half ago when we were told we were supposed to do discovery by June of 2010. So, we did all of our depositions by June of 2010 with the exception of one that counsel kept canceling that was taken yesterday.

Then discovery started getting extended, and every time we came here on the eve of a discovery close, we were first told, well, now we have to do all this discovery into all of these different other deputies at the Sheriff’s Department and turn over all their personnel files, which we did, thousands and thousands of documents, which have not been mentioned ever since then.

The next time discovery was supposed to close we were told — counsel came in here and said, “They gave us false information in a spreadsheet. We found out that it was false. They’ve withheld information,” which we subsequently — at the time I didn’t know what to say because it was sprung on me. I said, “I don’t know if there’s anything inaccurate in there or not.” It turns out, and it’s in our response in the motion, there was nothing inaccurate with anything in the spreadsheet.

We provided exactly what was asked for, which were the racial profiling statistics, and I’m sure we’ll get to that at some point.

And then now when we’re on the close of discovery again, we have a whole new criminal enterprise theory involving Sheriff Nygren that he’s requesting to do discovery into. Now, that’s Jose Rivera, who he doesn’t allege is Sheriff Nygren’s business partner. He alleges that he is his partner in this coyote scheme and this kickback scheme and in these murder plots and all of this other stuff, which doesn’t have anything to do with this case.

And the fact that he says he has a Monell claim, I would direct the court to paragraph 72, I think it is, of his complaint where his Monell claim has about nine or ten different subparts, and they all say the same thing, that the sheriff’s department did not adequately monitor, discipline, investigate allegations of racial profiling and that they retaliated against Mr. Seipler when he did in a number of different ways. By taking him off the SWAT team, doing all the things they did that ultimately led to his termination. That’s it. That’s what his
Monell claim says.

So, for him to just say, well, I have a Monell claim, and that means that he — because we’re talking about a lot of discovery. If we are really going to be required to defend Sheriff Nygren on the allegations of Deputy Milliman that he was involved in some criminal conspiracy involving illegal trafficking of Hispanics over the last several years, that’s going to take a lot of work, and it doesn’t have anything to do with the lawsuit, Judge, and it doesn’t have anything to do with his Monell claim, either.

THE COURT: Well, I’ll let — it’s closer to the Monell claim than the lawsuit. Whether or not it really fits, I don’t know. But, counsel, you have to give me this. This has turned out not to be the garden variety lawsuit as far as 1983 is concerned. Every time I pick up this file, there’s something different that happens that I haven’t seen before in any file.

That’s why it’s drawn out.

MR. SOTOS: That’s because it comes up on the close of discovery. There’s this frenetic activity weeks before discovery closes, and then we’re in here defending entirely new allegations, and this –

THE COURT: What am I supposed to with somebody that misidentifies 140 individuals as Caucasian?

MR. SOTOS: Judge, I got –

THE COURT: Am I supposed to be happy with that?

MR. SOTOS: Well, Judge, you know what? I’m not happy with that, but that’s not — in the first place, we’re not even arguing about that, about him doing discovery on that. As far as that goes, he never — by the way, Judge, he never complained about that ever. That was something that we first had notice of during this case when we were doing the responses to discovery.

THE COURT: But he –

MR. HORWITZ: That’s a false statement.

THE COURT: Wait for me. Wait for me. But he has always said to me that this particular officer engaged in racial profiling, hasn’t he?

MR. SOTOS: No, Judge. The first time — the first time that he ever mentioned Bruketta was on July 22nd, 2008, which was after all of the alleged retaliation that he’s complaining about with the –

THE COURT: You’re talking about Seipler now?

MR. SOTOS: Seipler. The first time he mentioned Bruketta was when he was ordered to disclose the names of people who he thought were involved in racial profiling. He submitted a memo on July 22nd, 2008. That was the day after he had been placed on administrative leave as a result of the citizen complaint that he told people to switch seats and gave the ticket to a passenger.

THE COURT: Was Bruketta on the memo?

MR. SOTOS: He was on the memo, but, again, that was issued the day after the leave. And, by the way, Judge, as far as that goes, they looked into it. They didn’t have any reason to think that he was writing down the wrong race. That first came up within the last 45 days or so and they’re doing an investigation into that broader than just him. But that’s the first time that came up. So, that’s not even connected to his allegations in this case. But it certainly doesn’t have anything to do with this criminal conspiracy nonsense involving –

THE COURT: Okay. I got it.

But, counsel, look. I’m not going to let you go off on a year’s worth of discovery on Sheriff Nygren and whether or not he hired somebody to kill somebody in some location because that might show that he was trying to cover things up to fire your client. All right?

MR. HORWITZ: All right.

THE COURT: Now, I want to get the case done. Your client’s position is he made a legitimate complaint. He made it through legitimate authorities. What he said was true, and because of that in retaliation he got fired.

MR. HORWITZ: That is the core section 1983 First Amendment retaliation. That is the core concept of the case, yes, your Honor.

THE COURT: That’s it. It’s straightforward. It’s right there.

MR. HORWITZ: Well, that’s correct. That is a core aspect of the case.

THE COURT: Well, what else is there?

More tomorrow.

December 24th, McHenry County Blog ran the first part of the December 15, 2010, transcript of a Rockford hearing before Magistrate P. Michael Mahone.

December 25th, the second part was published with the third installment published Sunday. Part 4 went up Monday and Part 5 is below.

MR. HORWITZ: There’s a Ms. Weech, Mrs. Weech. I think it’s Jan Weech.

THE COURT: Janet, I think. J-a-n-e-t.

MR. HORWITZ: Yes. Her deposition went, and she was a 30(b)(6) witness.

THE COURT: Yes.

MR. HORWITZ: During the deposition, defense counsel, his associate, agreed to a continuation for the deposition as a basis for one of her 30(b)(6) witness — 30(b)(6) opinions, which is why documents were destroyed, and these documents that are destroyed are two forms that officers wrote relative to 25 voided tickets.

THE COURT: What are you talking? Thirty minutes to wrap that up?

MR. HORWITZ: Maybe 45.

MR. SOTOS: Judge, if you notice on the motion, all of these depositions, for the most part, are depositions that have been started that never finished.

THE COURT: I see.

MR. SOTOS: But, you know, 45 minutes with Ms. Weech, we’ll agree to that, Judge, because –

THE COURT: No. Thirty minutes. Thirty minutes you can wrap up Ms. Weech. Who else do you need?

MR. HORWITZ: By the way, I guess defense counsel is the one that wanted to continue on with Milliman. So, I’m not sure what — the accusation you’re throwing.

THE COURT: No, I understand. No, I didn’t make any accusation, counsel. I’m sorry if you think I did. I put three hours down to Milliman because from what you’ve told me he said, giving counsel three hours to follow through on Deputy Milliman, that seemed reasonable to me. It seemed like he said a lot.

MR. HORWITZ: That’s fine. No. So, three hours. I would like an opportunity to ask questions, as well.

THE COURT: I’ll give you an hour.

MR. HORWITZ: All right. So, it’s three on –

THE COURT: Three for him on Milliman. One for you for rebuttal. I don’t know what Pyle has set forth. I haven’t put a number on Pyle.

MR. SOTOS: You said two and a half hours, Judge. I think you did put a number on that one.

THE COURT: All right. Two and a half on Pyle. Thirty minutes on Weech. What else you got?

MR. HORWITZ: Given the testimony of Milliman, we did issue subpoenas for Jose Rivera and Gary Pack. Jose Rivera is the individual that engaged in the illegal scheme that would be able –

THE COURT: Allegedly.

MR. HORWITZ: Yes. That would be able to articulate the admissions by Sheriff Nygren as to many things. Do you want me to go any further about that? Do you want me to argue as to whether or not I should take his dep? I’m just telling you what we have.

THE COURT: Well, why don’t you argue, first of all, as to why you should take his dep because, obviously, as you can tell, I’m trying to wrap this up.

MR. HORWITZ: Sure.

THE COURT: And that’s to — hopefully to both your clients’ benefits to get this wrapped up, get by if we’re going to get a Rule 56, and get the case tried and find out what the jury thinks of all this.

MR. HORWITZ: Jose Rivera would be able to — Jose Rivera is a business partner, the allegations run from — alleged business partner of Sheriff Nygren.

THE COURT: All right.

MR. HORWITZ: That’s what Deputy Milliman said. So, to be clear, him, Deputy Milliman, Jose Rivera, and Sheriff Nygren would sit in a room on many, many, many occasions, and they would talk about what is going on. Okay?

THE COURT: That’s what Milliman said?

MR. HORWITZ: Yes.

THE COURT: All right.

MR. HORWITZ: 2000, he said. 1999 and 2000. That’s when they had these conversations. And subsequently.

MR. SOTOS: That’s not what he says.

THE COURT: That’s okay.

MR. HORWITZ: So, and these are the things he said on the record.

All right. So, there are three events, three instances where Jose Rivera and Sheriff –

THE COURT: You got a Monell claim?

MR. HORWITZ: Yes.

THE COURT: Okay.

MR. HORWITZ: Do you want me to talk further?

THE COURT: No. That’s where that fits, I assume. I assume you’re going to tell me it fits on the Monell claim.

MR. HORWITZ: It fits on the Monell claim. It also fits potentially for 404(b) evidence and 608(b) evidence.

THE COURT: See, I think it’s kind of hard to get there, but –

MR. SOTOS: Judge, can I respond to this –

THE COURT: Yeah, you sure can.

More tomorrow.

Transcript in Last Zane Seipler Wrongful Termination Court Hearing – Part 2

Yesterday, McHenry County Blog ran the first part of the December 15, 2010, transcript of a Rockford hearing before Magistrate P. Michael Mahoney. Today, you can read the second part.

The underlying case is one in which former McHenry County Deputy Sheriff Zane Seipler, who ran unsuccessfully against Sheriff Keith Nygren in the spring GOP primary election, sued the department for wrongful termination. Racial profiling has been a centerpiece of the case.

THE COURT: All right. Now, what does this other stuff have to do with it?

MR. HORWITZ: If Sheriff Nygren was involved in this criminal activity, as this 15-year veteran states — okay?

THE COURT: Yeah. You’re going to try to get it in as other bad acts?

MR. HORWITZ: No. Not as propensity. Not –

THE COURT: Well, you said 404(b).

MR. HORWITZ: 404(b) allows for motive and intent.

THE COURT: All right. And the motive is going to be that this is all part of a vast conspiracy and that the reason he fired your guy was to protect his own criminal activity.

MR. HORWITZ: More specifically. Not just the concept of criminal activity as a general concept.

THE COURT: Yeah.

MR. HORWITZ: And, by the way, there’s many, many, many factual patterns. I’ve addressed as many as I could in the motion that were pertinent.

THE COURT: Okay.

MR. HORWITZ: But the targeted focus is that there were a number of things that Sheriff Nygren was doing with regards to Hispanics Deputy Milliman says in the recent testimony, and the two or three things that he was doing that relate to Hispanics, two of them — there are three things that we’ve set forth in the motion.

THE COURT: Right.

MR. HORWITZ: Two of them are relatively meaningful as it relates to racial profiling. One is that they were actually, for the sake of a — I’ve got to short circuit. You know, shorten what I’m saying. Let’s just say he’s sort of filling up the Stonelake Apartments from Mexico, meaning illegal trafficking of Hispanics from Mexico.

THE COURT: For what? Why is he doing it?

MR. HORWITZ: Because him and Jose Rivera, Deputy Milliman states, received a financial benefit.

THE COURT: Because?

MR. SOTOS: Kickbacks, he says.

MR. HORWITZ: Because Jose Rivera received money.

THE COURT: Because the Hispanics would pay them if he’d protect them?

MR. HORWITZ: Yeah. The traditional coyote scheme, which is somebody transports them –

THE COURT: All right.

MR. HORWITZ: Now, this is what Deputy Milliman says, Judge.

THE COURT: Yeah, but it’s not what your guy complained of.

MR. HORWITZ: That’s not — okay. I’m just giving you the two scenarios.

THE COURT: Well, but I’m just saying, you know –

MR. HORWITZ: Let me try then.

THE COURT: It’s a stretch to get this to tie into your case, particularly since I’ve got an ’08 case and I’m at the end.

MR. HORWITZ: Let me continue to tie it in, if I could, okay?

THE COURT: I’m waiting.

MR. HORWITZ: Okay. So, first of all — so, there’s two other central issues. Officers Jones and Bruketta, specifically Jones, would go to the Stonelake Apartments, wait for a traffic violation because they believed or he believed — 9 at a minimum I know that there’s evidence relative to Jones — that it is at that location where he can get arrests. It is through getting arrests that the officers are promoted.

For example, just so you understand, Sheriff Nygren would generate a list. Now, sidetracking from arrests with regards to tickets, Sheriff Nygren would generate a list. If you get 20 more tickets, you are then put on a letter that we publicly — Sheriff Nygren publicly displays, and in that letter it identifies all the officers, how many arrests did they get — excuse me — how many tickets they got, and that sort of getting on that list is what provides for promotions, provides for a pat on the back, doing a good job.

THE COURT: But, you see, there’s a slight inconsistency here in what you’re saying. On the one part you’ve told me that basically — and I know you’re saying that you have information that shows this. I’m sure you’re not accusing Sheriff Nygren at this point.

But one thing you’re showing that — you’re claiming that Sheriff Nygren has a benefit of protecting illegal Hispanics and putting them into the house and getting some type of kickback. On the other hand, you’re telling me that people are hanging around this place that are friends of Sheriff Nygren arresting them so that, in fact, they can move up, as far as this list is concerned, which means he’s not doing much protection as far as these people are concerned if he’s got his officers out there arresting them.

MR. HORWITZ: I didn’t say that he was intending to protect them. There is another scheme. There is another scenario. Whether or not he chooses to intellectually analyze what he’s doing and his course of conduct, and I understand what you’re saying, but –

THE COURT: Did Milliman really say this stuff?

MR. HORWITZ: Judge, this is what he said under oath.
And to be clear, Judge –

THE COURT: Wow.

More tomorrow.

McHenry County Blog sat though the Rockford hearing before Magistrate P. Michael Mahoney a week ago on December 15, 2010. While I took notes, I thought it best to wait until I could obtain a copy of the transcript of the day before publishing anything.

The underlying case is one in which former McHenry County Deputy Sheriff Zane Seipler, who ran unsuccessfully against Sheriff Keith Nygren in the spring GOP primary election, sued the department for wrongful termination. Racial profiling has been a centerpiece of the case.

The first part of the transcript follows:

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
ZANE SEIPLER, ) Docket No. 08 C 50257
)
Plaintiff, ) Rockford, Illinois
) Wednesday, December 15, 2010
v. ) 2:45 o’clock p.m.
)
CAPTAIN ANTON CUNDIFF, et )
al., )
)
Defendants. )
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE P. MICHAEL MAHONEY
APPEARANCES:

For the Plaintiff: THE BLAKE HORWITZ LAW FIRM, LTD.
(20 S. Clark Street, Suite 500, Chicago, IL 60603) by
MR. BLAKE WOLFE HORWITZ

For the Defendants: JAMES G. SOTOS & ASSOCIATES, LTD.
(550 E. Devon, Suite 150, Itasca, IL 60143) by
MR. JAMES G. SOTOS

Court Reporter: Mary T. Lindbloom
211 South Court Street, Rockford, Illinois 61101
(815) 987-4486

(The following is from a tape recording of proceedings:)

THE COURT: All right. 08 C 50257, Seipler v. Cundiff.

Good afternoon, counsels.

MR. HORWITZ: Good afternoon, Judge.

MR. SOTOS: Good afternoon, your Honor. Jim Sotos for the defendants.

MR. HORWITZ: Blake Horwitz for the plaintiff.

THE COURT: All right, counsels. I’ve got a lot of material here. Why don’t you just start off with tell me where  you think everything’s at at this point in time. Three minutes, though. Tell me where you think you’re at.

MR. HORWITZ: With regards to the status of discovery?

THE COURT: Status of discovery, where you think the case is going, what order you want me to take these motions on, anything you want to talk about. This should be just Merry Christmas to you.

MR. HORWITZ: Three minutes. Is it like a lawyer’s — is it a lawyer’s three minutes, or are we talking –

THE COURT: Well, you’ve already used up 15 seconds.  See, that’s always a mistake.

MR. HORWITZ: All right. So, generally speaking, we are prepared to be, I would say, close or at the end of discovery as of today. And as you read in the motion, which there’s an issue about it being under seal, which we need to  address. So, that’s question mark number one.

Where Deputy Milliman came forward and articulated that there was a long line of criminal activity that Sheriff Nygren was involved in. Some of the criminal activity would be 404(b) evidence. Other criminal activity would be 608 evidence.

Targeted criminal activity concerns the conduct of Sheriff Nygren and a gentleman by the name of Jose Rivera, which has an established — have established connection with the two of them.

In fact, they’ve recently gone on a meeting over in federal court, believe it or not, with Judge Barasa (phonetic), within the last week. So, they have a tight connection, the three of them — the two of them, excuse me — Jose Rivera and Sheriff Nygren and the criminal activity that they were engaged in.

One was to bring Hispanics undocumented over to McHenry County, actually to a particular apartment complex called the Stonelake apartment complex. That apartment complex is a place where officers engage in racial profiling. The officers that engage in racial profiling, the evidence would be, are Bruketta and Jones, the officers that we’ve talked about.

THE COURT: Wait a minute. You mean they lived there or what?

MR. HORWITZ: No. Stonelake Apartments is a place where many, many, many Hispanics, if not mostly Hispanics, live.  I haven’t taken a poll. But my client actually lives very close to there, and the facts are that it’s a place where there’s a very high percentage of Hispanics that live there, a very, very high percentage.

THE COURT: What’s this got to do with Bruketta?

MR. HORWITZ: Bruketta and Jones, especially Jones, there’s evidence that those officers actually stopped their vehicle at that location where the Stonelake Apartments are with the intention of developing a high number of arrests, which they benefit from, high number of arrests, and the arrests that they seek to undertake are those with regard to Hispanics. So, that’s racial profiling.

THE COURT: And they benefit because they advance as far as the Sheriff’s Department –

MR. HORWITZ: Yes.

THE COURT: — is concerned or they get priority as far as picking vacation days or something like that?

MR. HORWITZ: Officer Bruketta, for example, he was on the department I believe for a year or a little bit less than a  year, and his promotion was — and his self articulated promotion, meaning in his deposition said by being active performing arrests, generating lots of tickets, etc., I became a K-9 officer. That is a promotion at the department. So, each officer, though he’s not a sergeant, which we wouldn’t actually consider — I wouldn’t actually consider to be a promotion –

THE COURT: How does that come in? Your case that you’ve got pending here claims that your client’s First Amendment rights were violated because he complained publicly, which is what he’d have to, about racial profiling and got fired because of that, right?

MR. HORWITZ: Yes. He went to the Illinois State Police, FBI, the EEOC, his supervisors, etc., yes.

THE COURT: All right. Then he gets at least retaliated against. Okay?

MR. HORWITZ: Job demotions and termination.

THE COURT: That’s right. Now, now you’re sliding over and talking about this illegal activity. Now, the only way I can think that you can even try to connect this up with your lawsuit is to say what? One of the reasons the sheriff was so sensitive about this issue was because of this alleged illegal conduct, and so that’s why he fired your guy? In other words, counsel –

MR. HORWITZ: That is one of the bases.

THE COURT: Well, how does it fit into your lawsuit at this point? Your guy has a relatively straightforward lawsuit.

He says, “I saw racial profiling. I thought it was wrong. I complained about it. I went outside. I broke the code. And because of that, I was trampled on,” right?

MR. HORWITZ: Yes.

More tomorrow.