McHenry County Blog

A bit more than a month ago Rockford Federal Judge Frederick Kapala gave McHenry County Sheriff Keith Nygren’s attorney James Sotos and re-instated Deputy Sheriff Zane Seipler (who had the audacity to challenge Nygren in the GOP primary after being fired) a month to file 20 pages apiece.

The documents were to tell why Sotos thought Seipler’s case should be tossed and why Seipler attorney Blake Horwitz thought Sotos’ motion for contempt of court should be dismissed.

Since Seipler’s brief is shorter, I’ll run it first, a couple of the 15 pages each. Then, I’ll get to the Sotos brief.

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF DENYING DEFENDANTS’ SANCTIONS MOTION

Now comes the Plaintiff by and through his counsel, Blake Horwitz and Dan Dorfman, and hereby responds to Defendants’ Motion for sanctions.

INTRODUCTION

Even after lengthy and exhaustive evidentiary hearings, Defendants’ motion remains grounded largely in conclusory allegations, innuendo, and speculation, but little substantive evidence. As the evidence shows, Defendants have simply not met their burden and their motion should be dismissed.

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Part 2 tomorrow

LEGAL STANDARD

Dismissing a case as a sanction is a “draconian” measure that “must be infrequently resorted to by district courts.” Rather, “the interests of justice are best served by resolving cases on their merits . . . .” Long v. Steepro, 213 F.3d 983, 986 (7th Cir. 2000) (internal citations omitted). Thus, “clear and convincing” is indisputably governing law in the Seventh Circuit:

[C]onsidering the severe and punitive nature of dismissal as a discovery sanction,
a court must have clear and convincing evidence of willfulness, bad faith or fault before dismissing a case. . . . In all circumstances, to justify dismissal as a sanction, there must be clear and convincing evidence.

Maynard v. Nygren, 332 F.3d 462, 468 and fn. 3 (7th Cir. 2003); Prima Tek II, L.L.C. v. Klerk’s Plastic Indus., 525 F.3d 533, 542 (7th Cir. 2008) (requiring “clear and convincing” evidence to hold party in civil contempt for violation of court order). [FN1] Defendants will likely contend that, because several subsequent Seventh Circuit decisions have “questioned” Maynard, the lesser, preponderance-of-the-evidence standard governs. See Ridge Chrysler Jeep, LLC v. DaimlerChrysler Fin. Serv. Americas LLC, 516 F.3d 623, 625-26 (7th Cir. 2008); Wade v. Soo Line R.R. Corp., 500 F.3d 559, 564 (7th Cir. 2007). This argument is unavailing. Maynard has not been overruled and remains the governing standard in this circuit.

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FN1  See also FTC v. Asia Pac. Telecom, Inc., 788 F. Supp. 2d 779, 790 (N.D.Ill. 2011) (“Clear and convincing evidence has been the traditional standard required by the Seventh Circuit for ordering a default judgment as a discovery sanction”); Stewart v. Illinois, 2003 U.S. Dist. LEXIS 14076 (N.D.Ill. Aug. 11, 2003) (holding that dismissal of a case as discovery sanction requires clear and convincing evidence); REP MCR Realty, L.L.C. v. Lynch, 363 F. Supp. 2d 984, 999 (N.D.Ill. 2005) (same).

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Accordingly, this Court must apply the clear-and-convincing standard to Defendants’ motion to dismiss. See JFB Hart Coatings, Inc. v. Am. General, LLC, 764 F.Supp. 2d 974, 981 (N.D.Ill. 2011). It is black-letter law that district courts must apply the law as expressly stated by the Circuit Court in their jurisdiction and not rule based on speculation as to how the Court might rule in the future. See Hastert v. Illinois State Bd. of Election Comm’rs, 1994 U.S. App. LEXIS 13101 (7th Cir. June 1, 1994) (“When a district court overlooks . . . relevant, binding precedent, its decision cannot stand”). Specifically, a district court does not have the authority to decide that governing precedent has been overturned or altered “by implication” in subsequent appellate decisions. See Levine v. Heffernan, 864 F.2d 457, 461 (7th Cir. 1988). As the great Judge Learned Hand explained:

[W]e have not been oversuccessful in attempting ‘to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant.’ and I think it would be the part of wisdom to desist here….
Quoted in Sommerfield v. City of Chicago, 252 F.R.D. 407, 415, fn. 5 (N.D. Ill. 2008) (holding that the cases like Soo Line that question the clear-and-convincing standard have no precedential value).

Accordingly, Defendants must prove by clear and convincing evidence that this action may be dismissed as a discovery sanction for Plaintiff’s purported misdeeds. However, the palpable paucity of proof presented by Defendants in support of their motion requires denial of the motion whichever standard of proof this Court applies.

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Part 3 tomorrow.

ARGUMENT

A. The transcript of September 23, 2011 hearing before Judge Mahoney. Utilizing speculation and unsupported conjecture, Defendants argue that Plaintiff’s counsel deliberately misled the Court.

Blake Horwitz

The passage at issue is a colloquy between Judge Mahoney and Mr. Horwitz in a hearing on September 23, 2011. [FN2] Defendants presume to know what Mr. Horwitz meant by his answer to Judge Mahoney’s question: Under the provocative heading “[II.](C) Perjury, Misdirection and Deception” in their second supplemental motion to dismiss, Defendants assert that in that hearing:

Plaintiff’s counsel deceptively stated, in an attempt to mislead and deceive the court, that he “[did not] have an answer” to the Magistrate Judge’s question as to how the owner of the offending blog obtained the confidential what Mr. Horwitz meant by his answer to Judge Mahoney’s question: Under the provocative heading “[II.](C) Perjury, Misdirection and Deception” in their second supplemental motion to dismiss, Defendants assert that in that hearing:

Plaintiff’s counsel deceptively stated, in an attempt to mislead and deceive the court, that he “[did not] have an answer” to the Magistrate Judge’s question as to how the owner of the offending blog obtained the confidential document.)

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FM2 Mr. Horwitz: So moving on, Google’s response is – with regards to MCSO [E]xposed, that’s what Google’s response is. My client created that website a couple years ago. Not [R]eal MCSO [E]xposed. There’s a lot of websites out there that have many different names – I’m sorry. There’s a lot of websites that have – at least from what I understand. They’ve got lots of bloggers out there. A lot of people are very critical of the department and all that, and they’re saying lots of different things, and they have similar names to them. That’s just what I remember.

The Court: How would they get the documents?

Mr. Horwitz: I’m not saying they got these documents. I am just simply saying to you that – - -

The Court: Didn’t the documents show up on the websites?

Mr. Horwitz: Yes.

The Court: Well, then how would somebody that just made up their on blog have these documents to begin
with to put them there?

Mr. Horwitz: I don’t have an answer to that question. What I can say to you is how is it that the deposition transcript of Scott Milliman got to the paper? How is it that – which I understand was confidential before it was tendered to the newspaper. How is it that the confidential police report concerning my client and his wife was given to multiple police officers. How is it that things happen. I’m just giving you a rhetorical answer to the question.

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Part 4 tomorrow.

Contrary to Defendants’ spin, Mr. Horwitz made clear to Magistrate Judge Mahoney what he meant: At the time the disputed documents were posted on the suspect blogs, Mr. Horwitz did not know how third parties could get “the documents . . . to put them up [on the Internet]” and thus could not provide a definitive answer to the question. There were a number of reasons for this conclusion:

James Sotos

In his testimony, Mr. Sotos acknowledges that, with regard to Judge Mahoney’s use of the plural (“websites”), two websites were at issue — the Real MCSO and Shadow blogs. Mr. Sotos agreed that it was not unreasonable, let alone misleading or deceptive, to believe that the disputed confidential documents were uploaded to blogs by third parties. (Transcript of Sotos Testimony (“Sotos TR.”) at 1222.)

Most significantly, Mr. Sotos admits that he could not be sure how the disputed documents got onto the blogs at issue, which is precisely how Mr. Horwitz responded to Judge Mahoney’s question. Mr. Sotos agrees that an unhappy sworn member of the MCSO, Deputy Milliman, gave confidential materials to Mrs. Seipler that had been produced by the Defendants to the Plaintiff. (Id. at 1230, 1232-1234.) Mr. Sotos further agrees that Sgt. Pyle, with his highly developed computer skills, knew how to hack into computers and he could believe that Sgt. Pyle had done so. (Id. at 1018. [FB3]) Mr. Sotos also grants that documents can be uploaded onto a website by a third party, with the website-owner’s permission, but states that he did not know whether such permission had been granted by the owner of the Shadow website. (Id. at 1232.)

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FN3 18 Q. If I told you that Sergeant Pyle has actually told members of the department that he goes into computers, hacks into them, and can upload information onto the Internet, would that surprise you?

A. Not really, no. After what I’ve heard about Sergeant Pyle, I guess you could say nothing would surprise me. (Sotos Tr. at 1018)

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Part 5 tomorrow.

Conceding that Judge Mahoney referred to “websites” in the plural, Mr. Sotos nevertheless maintains that the Judge was referring only to one website, Real MCSO, because that was the subject of Defendants’ motion. (Id. at 1224, 1227, 1231, referring to Defendants’ Exh 23 at 13:17-19.) Mr. Sotos admits that this is just his interpretation of Judge Mahoney’s reference to “websites” in the plural. (Id. at 1225.) Yet, Mr. Sotos still maintains that Mr. Horwitz “tried to misdirect the court . . .” (Id. at 1225.) Mr. Sotos is confident that Judge Mahoney had in mind only the Real MCSO, despite no support in the hearing transcript.

Nonetheless, for some reason, Mr. Sotos argues that one would have to ask Judge Mahoney directly whether the Judge was referring to any other website, in particular the Shadow website, where some of the disputed documents appeared. (Id.at 1225-1226, 1238:-1239.)

Defendants insist that Judge Mahoney’s question was crystal clear and thus, because Mr. Horwitz must have known what the unambiguous question referred to, his response was patently deceptive. (Id. at 1238.) Astonishingly, Defense counsel, Ms. Ekl, objects to Mr. Horwitz posing Judge Mahoney’s own question to Mr. Sotos. Ms. Ekl contends that the question is “vague.” (Id. at 1236-1237.) Explaining the reasons for her objection, Ms. Ekl makes a statement that would be comical, if its implications were not so serious: “Judge, again, I object to the vagueness of this question. We’ve been talking about multiple documents from multiple productions, multiple sources, and multiple websites.” (Id. at 1237). But these are exactly the reasons that Mr. Horwitz gives for his answer to Judge Mahoney’s question, reasons that Defendants have insisted for months and months proved Mr. Horwitz’s answer was a deliberate attempt to mislead and deceive the Court:

There’s a lot of websites that have – at least from what I understand. They’ve got lots of bloggers out there. A lot of people are very critical of the department and all that, and they’re saying lots of different things, and they have similar names to them. That’s just what I remember. (Defs. Exh. 23 at 13:8-13.)

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Part 6 tomorrow.

Defendants will likely argue that Plaintiff’s counsel was aware that Ms. Seipler indicated she had knowledge of how the information was uploaded onto the websites. However, undermining his own position, Sotos acknowledges that the August, 2011 conversation, in which Mr. Horwitz could have learned of this information, implicated the spousal privilege.[FN4 ]At no time did Ms. Seipler state that she told Mr. Horwitz that she uploaded the documents. Although Mr. Horwitz and the Plaintiff did have a heated conversation about who uploaded the confidential documents onto the Internet, Ms. Seipler never advised Mr. Horwitz that she had done so. Indeed, she specifically stated that she desired to speak to a lawyer and would not tell Mr. Horwitz what happened. [FN5] (Id. at 1494-1495).

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FN4 Q. Okay. So, you accept that a privileged conversation could 21 have taken place in August 2011, correct? Where an issue concerning spousal privileges could have arisen; is that correct?

A. Sure. (Sotos Tr. at 983.)

FN5 In September, 2011, Mrs. Seipler contacted John Nelson, her attorney at that time. (Rosalinda Seipler Testimony, Transcript at 1496.) Later she secured the services of Dennis Giovanni. (Id.) Mr. Horwitz asked Mr. Nelson if Mrs. Seipler posted the materials and Mr. Nelson advised that he would not disclose that matter to Mr. Horwitz.

Ultimately, Mr. Horwitz learned from Dennis Giovanni that Mrs. Seipler posted the materials. (Horwitz, Tr., 808-809).

Furthermore, Mr. Nelson agrees that it would have been unethical for Mr. Horwitz to invade her relationship with Mr. Nelson, subject to review by the ARDC. (Nelson TR. at 843-844, 849-851). Moreover, obvious conflicts prevented Mr. Horwitz from inquiring further; even if Mrs. Seipler did not ask for a lawyer, Mr. Horwitz was obligated to advise her that she should secure the services of a lawyer, as Mr. Nelson testified. (Id. at 862-863).

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Mr. Horwitz properly answered Judge Mahoney’s question and was not deceitful. Thus, Defendants’ accusation that Plaintiff and his counsel sought to mislead the Court on September 23, 2011 rings hollow and is contradicted by the evidence. The motion should be denied.

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Part 7 tomorrow.

B. The Plaintiff did not upload the documents onto the web or pressure his wife to do so. Mrs. Seipler uploaded the documents out of anger, fear and concern for her family.

Defendants claim that either Plaintiff posted the disputed documents on the Internet or his wife did so at his direction. The evidence does not support these contentions. It is undisputed that Rosalinda Seipler (“Rosa” or “Mrs. Seipler) created two blogs in May-June 2011 and posted some confidential personnel documents on these blogs. Mrs. Seipler testified that: For three years, she felt angry, worried, and helpless in the face of MCSO’s harsh treatment of husband, which was destroying her family financially and emotionally. (Rosalinda Seipler Testimony, Transcript (“R. Seipler TR.”) at 1467-1468). Mrs. Seipler selected the offending documents from a box that was organized for the depositions that were taking place (Z. Seipler, Tr. 343, 468-471) (R. Seipler, Tr., 1383).

MCSO was “targeting” her husband for reporting racial profiling in the department, while doing nothing about the profiling that Zane reported. (Id. at 1442, 1445.) After all, the department removed Zane from the SWAT team, no longer employed him as a Field Training Officer or a First Aid Trainer and ultimately placed him on administrative leave. It seemed that the department was more determined to demote Zane that to investigate Zane’s allegations of racial profiling. (Id. at 1443-1446. ) Indeed, at the time Mrs. Seipler put the disputed documents up onto the web, the MCSO had still not reinstated Zane too the department, even though he had won his job back three times.

Rosa became aware that an internal investigation of 51 deputies, led by Mr. Sotos’ law firm, determined that only seventeen of the officers had deliberately misidentified the race of drivers they ticketed. (Id. at 1448-1449). Rosa was concerned that Mr. Sotos was purportedly investigating the same officers and department that he represented as an attorney. (Id. at 1446-7.)

The department did not impose any disciplinary action on any of the seventeen officers, including Jeremy Bruketta, who had misidentified the race of drivers on hundreds of tickets in one year. (Id. at 1451). In disturbing contrast, Defendant Sheriff Nygren sought to arrest Zane for filling out two tickets incorrectly. (Id. at 1455.)

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Part 9 tomorrow.

Mrs. Seipler felt like “we didn’t have a chance” and “we were battling something.” She was “very pissed… [and] afraid.” (Id. at 1447.) Rosa believed that the truth about the MCSO was not going to come out. (Id. at 1447, 1456). Mrs. Seipler put the information up on the web because she had become “paranoid,” fearing that something was going to happen to Zane, her, or her children. Deputy Milliman’s brother, Kurt, was murdered only six months after the Deputy was deposed, and Rosa believed that Kurt Milliman’s death was payback to stop Deputy Scott Milliman from speaking out. (Id. at 1457, 1467, 1557). At the time, Mrs. Seipler had three children under the age of six. (Id. at 1334-1335.) In addition, at that time and for several months prior Mrs. Seipler had been barricading the doors to her house (Id. at 1491-1492). Guns were strategically placed in the house to defend the family and the shades were drawn so that the children could not be seen from the outside. (Id.) Rosa was also afraid that the Sotos law firm, with its unlimited resources, was going to “come after her” and she would lose her job. (Id. at 1501.) Rosa believed that publishing the information on the internet might make her family safer. (Id. at 1467-1468).

Mrs. Seipler was aware that the Milliman deposition transcript had gotten to the Northwest Herald and to an associate of Sheriff Nygren, Jose Rivera, who, as she understood it, was involved in shady dealings with the department. (Id. at 1459-1460). Moreover, in January, 2010, after the domestic violence report was made public, Mrs. Seipler spoke to a sergeant of the Woodstock Police Department, who initiated an internal investigation to find out how the materials became public. The sergeant told her that only the Sotos law had received the documents, in response to a subpoena; other requests by various newspapers were denied. (Id. at 1511-1515). Ultimately, Rosa received a letter from the Woodstock Chief of Police confirming these details. (Id.)

Mrs. Seipler removed the confidential designation from the documents when she scanned them into the computer. After all, the domestic violence report had been distributed with the confidential designation and therefore Rosa understood this to be the proper procedure. She believed that the documents that she uploaded to the blogs were not confidential, since Judge Mahoney ruled that the domestic report and the Milliman deposition transcript were not confidential. (Id. at 1504-1509).

When Mrs. Seipler created the first blog, there was no need to log in or create a website; the computer was turned on and so she went in straight to Google. When creating the second blog, the computer was turned off, so she turned it on and had to log in. (Id. at 1465-1467). This presented no problem. Zane and Rosa shared the same password on the computer. They agreed, after Zane’s had a relationship with another woman, that there would be no secrets between them. For this reason, Zane could not create a password that would limit Rosa’s access to the computer. (Id. at 1485).

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Part 9 tomorrow.

Nevertheless, Rosa did not tell Zane — or anyone else — that she posted the disputed materials. Mrs. Seipler had previously posted comments on a number of media websites, such as the Daily Herald, the Northwest Herald, and the Woodstock Advocate. Zane had told Rosa that he did not want her to post information on the web and they had often argued about this. (Id. at 1473). When Mrs. Seipler started posting in 2009, Zane objected, concerned that the material she posted could harm his campaign for Sheriff. (Id. at 1479-1481). Mrs. Seipler continued to post comments in late 2009-2010 but without posting her name, in order to avoid arguments about this with her husband. (Id. at 1483-1484). Rosa did not tell Zane that she posted the materials to the Real MCSO website or the Shadow Website until August, 2011 because she did not want to create “problems” between her and her husband. (Id. at 1488-1490).

When Mrs. Seipler overheard Zane telling his attorney in a telephone conversation that he had not posted the materials on the web, she felt compelled to tell her husband that it was she [w]ho had done so. She posted the documents, Rosa told Zane, because she feared that he was going to be criminally prosecuted and was in “big trouble” (Id. at 1494). That same evening, Mrs. Seipler and Mr. Horwitz spoke on the phone and Mr. Horwitz asked her if she knew who had posted the materials on the Real MCSO and Shadow websites. When Mrs. Seipler told Mr. Horwitz that she was not going to tell him. Mr. Horwitz posed certain hypotheticals to Mrs. Seipler and then advised her to consult with her own lawyer. (Id. at 1494-1495.)

In September, 2011, Mrs. Seipler contacted Mr. John Nelson, who was her attorney at that time. (Id. at 1497-1498). After she and Mr. Nelson spoke in October, 2011, she chose Mr. Dennis Giovanni to represent; she had come to the conclusion that Mr. Giovanni would be more zealous in her defense. She secured the services of another attorney who she felt was better suited, based on his level of interest in defense of Ms. Seipler, Dennis Giovanni. (Id. at 1497-1498). Mrs. Seipler engaged an attorney because she was not sure whether she would be criminally prosecuted and at that time, she was the family’s sole breadwinner. (Id. at 1499).

The evidence does not support Defendants’ contention that the Plaintiff posted the disputed materials onto the web or that he induced his wife to do so. The motion should be denied.

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Part 10 tomorrow.

C. Defendants’ version of events makes little sense.

Defendants’ position is riddled with illogic. The Sotos law firm acknowledges that they were monitoring the Plaintiff’s MCSD Exposed website on a daily basis and Plaintiff knew this by means of a program called Site Meter (Z. Seipler, Tr. 398), which disclosed Sotos’ IP address and law firm’s daily observations of Mr. Seipler’s website. Consequently, Mr. Seipler was aware that the Sotos firm was aggressively monitoring a website that was generated from Plaintiff’s home computer and he could identify the firm’s IP address as well. Plaintiff was also aware that the Defendants had available the services of a computer forensic expert, then-Sergeant Pyle, who made no secret of his hatred for Mr. Seipler.7 (Seipler TR. at 340.) Zane knew that, as a computer forensic expert (Z. Seipler, Tr., 340, 554), Pyle knew how to access Mr. Seipler’s computer and track his internet uploads and IP address. Lastly, Mr. Seipler profoundly knew that Sheriff Nygren would use any and all means to attack and damage Mr. Seipler. After all, the Sheriff had Zane’s job away, criminally prosecuted him, threatened Zane by telling him to be sure that he has “good life insurance,” (Z. Seipler, Tr. 595) falsifying racial profiling studies, and appealing Zane’s termination at every possible level, from arbitration to the Illinois Supreme Court. [sic]

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FN6 Mr. Sotos admits that he did not suspect Mr. Horwitz of wrong doing but asserted that Mr. Horwitz engaged in wrong doing (Sotos Tr., 1041).

FN7 Pyle maintained a website called the AntiWoodstock Advocate, where he widely disseminated his displeasure with Mr. Seipler with a repeatedly-posted obscene message directed at the Plaintiff, which read “Fuck You, Fuck You, Fuck You.” (Seipler TR. at 467, 622.)

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Moreover, the Google subpoenas were sent to Plaintiff’s counsel on June 15, July 6, and August 1, 2011. (Sotos TR. at 1280, 1278, 1285, 1289-1290.) Plaintiff also knew that Defendants were seeking sanctions for his alleged posting of confidential material onto the web. However, the Shadow website, which contained the confidential documents (Sotos, Tr., 966) continued until approximately August 15, 2011 [FN8].

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FN8 The last known date for the shutdown of the Shadow website is August 15, 2011. [Def. Ex. 31, Defs. Supp. R26 Disc. 006246]. The last publication to the website was August 8, 2011, Id. at 6245.

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Defendants maintain that Plaintiff continued for two months to post confidential materials from his home computer to the web, either alone or in collusion with his wife – precisely the activity for which Defendants were seeking sanctions. This simply makes no sense.

Defendants’ construction of circumstantial evidence does not support their contention that the Plaintiff or the Plaintiff together with his wife posted the disputed materials on the Real MCSO Exposed or the Shadow websites. Clearly, as Defendants argue, if the Plaintiff got “caught”[FN9] he would not continue to post documents for two months after the June motion for sanctions. On the contrary, the evidence reveals Defendants’ version of events to be illogical.
The motion should be denied.

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FN9 Sotos believed that Zane just got caught (Sotos, Tr. 1039).

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D. Plaintiff and his counsel hid no information.

In the September 14, 2011 deposition of Mr. Seipler, Mr. Horwitz specifically asked Mr. Seipler clear, direct questions as to whether he uploaded the information onto the offending website. Mr. Sotos admits that the answers were clear. (Sotos TR. at 969.) Even though Defendants seeks sanctions regarding this deposition (Dkt No. 384, pg. 8, allegations 14-15), it is clear that Plaintiff was deliberate and straightforward in his answers.

E. Mr. Horwitz properly asserted a privilege in the September 14, 2011 deposition.

Defendants contend that Mr. Horwitz did not assert a valid privilege-objection in Mr. Seipler’s deposition, but was merely engaging in misdirection. (Dkt No. 384, pg. 8, allegations 14-15). Oddly though, Mr. Sotos admits that the spousal privilege was available [FN10]. John Nelson,Mrs. Seipler’s attorney, testified that if Mr. Horwitz violated the privilege, he could have been subject to discipline (Nelson TR. at 865.) Although Mr. Sotos asserts in writing that the privilege was vaguely asserted (Dkt No. 384 Id.), he admits that the spousal privilege could have been the privilege which Mr. Horwitz was invoking. (Sotos TR. at 981-982). Regardless, Defense counsel could have filed a motion to determine the nature of the privilege that Mr. Horwitz asserted, after complying with Local Rule 37.2’s meet and confer requirement, but chose not to.

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FN10 Q. Okay. So, you accept that a privileged conversation could have taken place in August 2011, correct? Where an issue concerning spousal privileges could have arisen; is that correct?

A. Sure.
(Sotos, Tr., 983)

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F. Plaintiff’s counsel committed a simple error in citing to the websites in question.

Plaintiff’s counsel admitted that he erred regarding the names and URLs of the websites when drafting Plaintiff’s response to Defendants’ initial motion for sanctions. Mr. Sotos acknowledges that Mr. Horwitz could simply have made a mistake in connection with the drafting [FN11]. Despite these errors, the affidavit that Plaintiff and his counsel submitted in response to Defendants’ original (June, 2011) motion for sanctions established that neither Plaintiff nor his counsel posted the materials to the websites at issue or knew who had done so. Further, the Plaintiff came forward in his September, 2011 deposition and very candidly explained, in very short and clear questions posed by his counsel that he did not post the materials to the internet.   The testimony and documents in this matter establish that there were many websites being addressed in this cause, including a website name, The Real MCSD, realmcsoexposed.blogspot.com and mcsoexposed.blogspot.com (Dkt No. 266-2, filed August 11, 2011).

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FN11 Q. And you sure wouldn’t want an attorney like me writing stuff up on motions and messing up the website addresses, right?

A. I think it’s better that that doesn’t happen

Q. Can you accept that that was just a mistake on my part?

A. I don’t know whether it was a mistake. That may have been a  mistake. I don’t know.
(Sotos, Tr. 1100)

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Interestingly, Defendants forensic expert erred as well (Sotos, Tr., 1048-1049) with regard to when the various blogs were created and Mr. Sotos also erred, calling the offending Blog realmcsdexposed whereas the correct address is realmcsoexposed [FN12]. The clerical errors were multiple in nature, but they were merely errors.

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FN12 Q. Okay. And so, with regards to the question in the plural that the federal judge asked me about, which websites in the plural, when he says in the plural, what was he talking about?

A. My interpretation of that, as I’ve said, is that he was talking about the Real MCSD Exposed website on which the documents were posted (Emphasis Added).

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G. Plaintiff’s frustrations referenced in his website do not amount to evidence of publication of confidential matters.

It is apparent that at times, Zane discussed his frustration at information being kept private. He mentioned his difficulty with the Pavlin situation (Seipler, Tr., 324, 331, 413-416) and the court’s resistance to make information regarding that situation public and how that approach will allow the department to maintain corruption. But Zane did not disclose confidential information. Later, he arrived at an idea to see which individuals would tender their e-mail address to him in order to secure information he could provide them (legally) regarding the Pavlins. (Z. Seipler, 413-416). However, nothing became of this approach.

CONCLUSION

For all the reasons stated above, Defendants’ motion fails to meet the clear-and-convincing evidentiary standard required of a motion to dismiss proffered as a discovery sanction. The motion should be denied.

December 5, 2012

/s/ Dan Dorfman
The Blake Horwitz Law Firm, Ltd.
39 S. LaSalle, Suite 1515
Chicago, Illinois 60603
Telephone: (312) 676-2100

in response to a Freedom of Information Act request I have discovered that McHenry County Undersheriff Andy Zinke is not precluded by the Federal Hatch Act from running in the Republican primary for Sheriff in 2014.

The short answer was contained in an email which arrived on March 19th. You can see it below:

The March 19th letter follows:

You may remember that the organization chart was changed for the Sheriff’s Department for the coming budget year.

The Hatch Act conditions can be found here.

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.

In the primary election, McHenry County Sheriff ran an ad listing all the people who have filled the office under the slogan,

The Proud Tradition Continues

I took a photo of the spring ad in the Northwest Herald. It’s pretty much the same as this past Friday’s, except, I would image the election date has been changed.

In times past the Chicago Tribune endorsed down to the County Board level.

No more.

This year, just those running for countywide office and judicial posts (some of which are now smaller than countywide) are endorsed in the collar counties).

In McHenry County, “consummate professional” Katherine Schultz is endorse over Democrat Mark Freund for County Clerk.

Schultz “has a thorough knowledge of the ins and outs of how the clerk’s office functions and where to look for savings,” the editorial reads.

But for Sheriff, Democrat Mike Mahon got the nod.

“Sheriff Keith Nygren fended off a primary challenge form a former assistant who said he was fired for blowing the whistle on racial profiling in the office. Critics argue that Nygren has become too cozy with the Republican establishment.

“Democrat Mike Mahon, a 23-year veteran of the Cook County Sheriff’s office, would bring a new perspective. Mahon is endorsed.”

The Tribune endorsed Nygren in the primary election over Zane Seipler.

For Judge, the Tribune endorsed Associate Judge Gordon Graham over Independent Sally Wiggins.

No explanation was offered.  Just the name of the circuit and Graham’s name.

The invitation is out for State Rep. Jack Franks October fund raiser. That’s the one where he solicited all over McHenry County and beyond building a political base for his anticipated run for the United States Congress in 2012.

As McHenry County Blog did last year, the names of the hosts will be published.

The invitation this year does not use the characterture that graced last year’s invitation.  This one looks more dignified.

Here are the special interest groups who have signed on to State Rep. Jack Franks’ fund raising 2010 Host Committee:

• Associated Fire Fighters of Illinois
• BNSF Railway
• Brotherhood of Locomotive Engineers & Trainmen
• Carpenters Local 2087
• Elevator Constructors Local 2
• Fraternal Order of Police, IL State Lodge
• IBEW Local 117
• IBEW Local 134
• Illinois AFL-CIO
• Illinois Bankers Association
• Illinois Education Association
• Illinois Pipe Trades
• Ironworkers Local 1
• Labors Local 1035
• Laborers’ International Union – Midwest Region
• Local 11 Cement Masons
• McHenry County Building Trades Council
• Metropolitan Fire Chiefs Association
• Northern Illinois Fire Protection Districts
• Plumbers Local 93
• Police Benevolent PAC
• Rockford-Area United Auto Workers 265
• Sheriff of McHenry County
• United Transportation Union

The invitation says that Lisa Madigan and Jesse White will be attending Franks’ breakfast fundraiser on October 2nd at the Bull Valley Country Club.

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Compare the logo on the golf ball with the Jack Franks’ sticker being distributed at the Johnsburg Saufen und Spiel Parade.

The following press release has been received from Zane Seipler, who is running against Sheriff Keith Nygren in the GOP primary election on February 2nd.

It comments on this Northwest Herald article.

I’d be willing to bet that the inspiration for that article was Seipler’s web site, McHenry County Sheriff’s Department Exposed.

There is so much there, including a very early post entitled “Ratio of Supervisors to Deputies.”

It’s one supervisor to every three deputies.

When I was studying public administration in grad school at the University of Michigan I seem to remember that one supervisor could ride herd over 8 or 9 employees.

“Seipler, Nygren differ over supervisor ratios”

A response to the Northwest Herald Article

On January 20, 2010, an article was printed in the Northwest Herald titled “Seipler, Nygren differ over supervisor ratios”.

A reporter I have talked to many times, contacted me late last week to comment on this story. She and I had a five to ten minute conversation about the way she reports.

I explained to her that refusing to comment was better than being misquoted, not quoted and misrepresented.

In the last 35 articles the Northwest Herald has written since I entered this race it is easy to see which way the paper leans. Their support of Keith Nygren’s re-election is not limited to the paper’s editorial page.

When I made mention of this, she immediately stated, “The editor makes the changes”.

I am glad to see that today’s article fairly states the circumstances of my wrongful termination. I am happy to see that she took to heart the comments I made with regards to the traffic stop that so often gets mentioned in every article where my name is present. I feel today’s article shows positive improvement and diligent journalistic investigation. This type of journalism pleases me immensely considering that, win or lose this election, I will be the focus of countless more Northwest Herald articles in the years to come.

The issue discussed is “Top Heavy” supervision.

The writer reports that under Keith Nygren the ratio is three and a half deputies to every one supervisor.

It was not always this way.

In the last several years the number of supervisors has increased.

The number of deputies has remained relatively constant. Supervisor positions were created for the Traffic Unit and the Apprehension Unit. The Apprehension Unit consists of one sergeant and two deputies.

Nygren would have you believe that this unit is constantly coordinating with the U.S. Marshal Service in attempts to apprehend fugitives here in McHenry County. This is not true.

The Marshal Team assists the Apprehension Unit once maybe twice a month. The rest of the time the sergeant is supervising two deputies.

The Traffic Unit is a little more complicated and, because of that, a secondary supervisor assists the primary supervisor.

This is wasteful when you consider that the deputies involved with the Traffic Unit are all certified accident investigators, all well versed in trial testimony and all self motivated, highly intelligent individuals. They don’t need two supervisors looking over their shoulders. This pattern of bureaucracy can be seen in the Investigation Division as well.

“Whatever we do out there [on the more serious calls] at some point very likely will be litigated in court, and you want to know that you’re setting the record straight so you have all the information you need to go to court,” Nygren said.

In March of 2008 Jerome and Carla Pavlin were seriously injured and arrested by five McHenry County deputies. Two supervisors arrived on the scene that day.

In the summer of 2009 the McHenry County State’s Attorney dismissed all charges against the Pavlins with prejudice. The reason for the dismissal was evidentiary inconsistencies.

Keith Nygren was quoted by the Daily Herald as saying, “I’m at a total loss to explain what happened here and why it happened”.

This case will go to court, again. It will cost the taxpayers of McHenry County possibly millions of dollars. The number of supervisors present isn’t going to change that.

More supervisors make it easy for Nygren to pass the “buck” and take no responsibility. That is the reason he thinks a 3.5 to 1 ratio is fine. More people to blame when everything goes bad.

I am confident that if I would have made these statements to the Northwest Herald reporter, they never would have been printed.

Zane Seipler- Republican Candidate for Sheriff

The recent filing of potential conflict of interest information by Democratic Party candidate for sheriff Mike Mahon means all of McHenry County Sheriff Keith Nygren‘s opponents have taken this step by transparency.

Nygren has not done so yet.

GOP primary opponent Zane Seipler was the first to file the form.  Green Party candidate Gus Philpott was the second.

The form in question was proposed as part of a county ordinance by the Alliance for Land, Agriculture and Water.

Its intent is to allow the public and other public officials to know what property those filing have as well as their business relationships.

Most county officials will show they have no such potential conflicts of interest.

16 of 27 county board candidates have their replies posted on the ALAW web site here.

But only five (half) of the incumbents running for re-election have voluntarily submitted a completed form:

• Tina Hill – District 5
• Mary McCann – District 6
• Lyn Orphal – District 2
• Sandy Salgado – District 4
• Barb Wheeler – District 3

None of the three male incumbents filed:

• Ken Koehler – District 2
• Pete Merkel – District 4
• Dan Ryan – District 6

And, the two District 1 females also did not fill out the ALAW ethics questionnaire:

• Yvonne Barnes
• Anna May Miller

I see the Northwest Herald has run a story today about McHenry County Sheriff Keith Nygren’s family having received two Homestead Exemptions, one in Florida and another Illinois.  (The Nygren home photo above comes from the web site of the Lee County Appraiser.)

The NW Herald story comes almost a week after former Democratic Party Coroner candidate Dave Bachmann’s blog, Dirty Keith vs. Dirty Harry posted the information.

The Herald’s “hook” was that Green Party candidate for sheriff, Gus Philpott, who publishes the blog Woodstock Advocate, wrote stories about the subject.

Nice to know the Herald reporters are still checking out what stories they might have missed by reading the blogs the paper refuses to identify by name.

Used to be, stories would even link to the blogs in question.

Not anymore.

The internet version of the story was posted at 1:20 AM, but revised over nine hours later at 10:58 AM, as you can see below.

The change I found quoted Sheriff Nygren. The printed version reads,

“…If I spend a couple of days there a year, that’s it.”

The current internet version reads,

“On Wednesday, Nygren clarifiied a previous statement and said he spends a few days at a time in Florida, which amounts to a few weeks overall. ”

The only new information I saw in the NW Herald article is that the Nygrens will owe “about $1,100” to Lee County, Florida, local governments because of Nygren’s McHenry County 2007 and 2008 Homestead Exemptions.

Zane Seipler, the man challenging almost 11-year incumbent Republican McHenry County Sheriff Keith Nygren has issues a press release challenging the incumbent’s credentials as a Republican. The statement follows:

Republican Sheriff Keith Nygren’s Support of the Democratic Party

Woodstock, IL, September 30, 2009- In the latter part of the 1970’s, Keith Nygren embarked on a political career.

Record states that Mr. Nygren was a Democratic committeeman in Algonquin Township.

At the age of 32, Keith Nygren was endorsed as the candidate for the appointment of sheriff by the McHenry County Democratic Central Committee. He did not get the appointment but his career as a politician began.

Keith Nygren was appointed Sheriff of McHenry County in 1997, this time as a Republican.

Prior to 1997, Mr. Nygren never participated in Republican Party politics.

According to recent record, Sheriff Nygren has not completely left his Democratic ideologies behind.

At a time when the Republican Party struggles to rebuild, Sheriff Nygren gives financial aid to a local Democratic leader.

Not just once but several times over the past couple of years.

When the Republican Party is in need of cohesiveness, leadership and support, Sheriff Nygren openly undermines the party that appointed him to office.

By providing campaign contributions to members of the Democratic Party, Keith Nygren turns his back on the Republican campaign donors that have helped solidify his tenure over the past 12 years.

Bi-partisan relationships are necessary in all aspects of government, including law enforcement.

Financing the other team crosses the line.

If Mr. Nygren has formed personal relationships with members of the opposing party, those relationships are to be respected.

Party unity and loyalty should also be respected.

Republican campaign contributions should not end up in Democratic coffers.

County Republican leaders should not be attending breakfast fundraisers for any member of the Democratic Party.

I am asking Republican Sheriff Keith Nygren to publically withdraw his support for any and all Democrats running for office, or to resign from the Republican Party.

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I presume Seipler is referring to Keith Nygren’s name being listed as a member of State Rep. Jack Franks’ “Host Committee” for his October 3, 2009, fund raiser.

He is not the only Republican whose name was published–a couple of letters at a time–over the last two weeks on McHenry County Blog.

If don’t want to go down on the blog to find the article you seek, just click on the image you wish to enlarge.

Zane Seipler is the head shot on top of the article. Keith Nygren’s is just below.