McHenry County Blog

Although Scott Milliman’s deposition was sealed, the Northwest Herald ran parts of it in an article.

That headline pretty much summarizes the final question Federal Judge Frederick Kapala had to decide in whether or not to dismiss former McHenry County Sheriff Deputy Scott Milliman’s wrongful termination suit.

The Judge points out it had to determine “whether the constitutional right violated was clearly established when defendants engaged in their retaliatory actions…

“In this case, it means that Milliman must show that the law was clearly established that a sheriff could not terminate a deputy sheriff for providing true testimony, pursuant to a subpoena and while under oath, that the sheriff and other deputies had engaged in illegal and otherwise corrupt activities.”

Sheriff Keith Nygren and Deputy Scott Milliman during friendlier days.

The Judge then cites the 2007 case of Morales v. Jones.

The case found that a police chief could not take retaliatory action against a subordinate for exposing corruption by the chief in a sworn deposition in a civil case.

“Accordingly, based on the facts as alleged in the complaint,” Kapala wrote, “Milliman has met his burden to demonstrate that the law was clearly established at the time of the violation, and therefore this court declines to dismiss Milliman’s complaint based on [a concept called] ‘qualified immunity.’”

Milliman’s wrongful termination suit was filed in December, 2011.

He was fired on August 17, 2011.

To read the entire decision, click here.

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Article one is here.

Article two is here.

Federal District Court Judge Fredrick Kapala refused to dismiss a second case brought by two men fired by McHenry County Sheriff Keith Nygren, this time the one brought by Scott Milliman.

Scott Milliman and Zane Seipler attended the Bill Prim for Sheriff fund raiser with Newt Gingrich.

Milliman was fired by Nygren for testifying in a required deposition in the case of now-reinstated Deputy Zane Seipler.

In his testimony, Milliman, to put it in the words of Monday’s decision, “alleged

1. excessive force used by other deputies
2. retaliation that Milliman and other deputies faced for reporting unlawful conduct
3. Nygren’s involvement in ‘ticket fixing’
4. Nygren’s acceptance of bribes
5. Nygren’s involvement in a fraudulent scheme to procure SBA [Small Business Administration] loans and then share the proceeds while permitting the loans to go into default
6. ‘general corruption’ within the Sheriff’s Office”

“Milliman also accused Nygren of soliciting him to commit two murders on Nygren’s behalf and of receiving payment to smuggle illegal aliens into the country.”

Retaliation up to and including firing are alleged by Milliman in his request for reinstatement and damages.

The Judge dismissed three of six counts, gave permission to explicitly name Undersheriff Andrew Zinke in another county and denied permission to include, along with Nygren, Zinke, John Miller, Steven Schmitt and Ken Nielson in two deprivation of First Amendment rights counts.

The Court also refused to rule out the possibility that Milliman might be reinstated in his job as Sheriff’s Deputy.

“Defendants boldly state, without further explanation or citation to any particular portion of the complaint, that ‘reinstatement would not be reasonable or feasible under the facts pleaded in the complaint,’” the decision reads.

“The court is not persuaded,” the next sentence reads.

“The command structure at the MCSO could change in the interim during this litigation…Nygren is an elected official who could be voted out of office, or choose to retire, prior to any order of reinstatement being issued…that portion of defendants’ motion is denied.”

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Article one is here.

Article two is here.

Article three is here.

Sheriff Keith Nygren’s motion for legal fees to be paid by Deputy Zane Seipler in his wrongful termination suit total $227,905.

There is an addition $32, 252.16 in “costs and expenses” for the contempt of court hearings.

Judge Frederick Kapala ordered Seipler to pay legal fees and costs, but did not dismiss Seipler’s case in his opinion of a month ago.

The court document for legal fees and costs was filed last Thursday by James Sotos associate Elizabeth Baron.

Seipler is represented by attorney Blake Horwitz.

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

Zane Seipler

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

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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

CONCLUSION

Defendants take no pleasure in exposing the fraud foisted upon this Court.

Yet, evidence of Plaintiff’s and Horwitz’ elaborate scheme of deception, including posting confidential documents, submitting a false affidavit, misdirecting the Court, and fabricating a false affirmative defense, cannot be countenanced.

Defendants could not have predicted Plaintiff would perjure himself to avoid the otherwise benign sanctions Defendants originally requested.

Nor could they have envisioned the magnitude of the scheme Plaintiff and his counsel would devise to avoid dismissal after Plaintiff’s perjurious affidavit elevated the consequences, and the disclosure of the Google evidence linked Real MCSO to Plaintiff’s computer.

One can only speculate what occurred in the Seipler home from June 2011 until January 2012 to lead Mrs. Seipler to perjure herself, but her description of herself as “paranoid” and drinking too heavily, in order to support her husband’s desperate measures to escape accountability, was among the most significant fallout from this hearing.

But the web of deceit extended well beyond Mrs. Seipler.

Sheriff Nygren, the Sheriff’s counsel, a local businessman, and even a respected judge, became fodder for Plaintiff’s efforts to misdirect the Court.

And, Plaintiff and Horwitz shamelessly exploited unimaginable crimes having nothing to do with this case, including the murder of Kurt Milliman and the indictment of Greg Pyle on horrific sex crimes, as somehow justifying Plaintiff’s misconduct.

In the end, this opportunistic exploitation of any perceived wrongdoing on the part of anyone arguably associated with the Sheriff, was exposed as a desperate attempt to avoid the consequences of Plaintiff’s and Horwitz’ fraud upon the Court.

As a result, no remedy short of dismissal and significant monetary sanctions is appropriate here [FN.17]

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FN17 In the event the Court deems monetary sanctions appropriate, Defendants will submit an accounting of fees and costs incurred in the pursuit of their sanctions request.

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December 5, 2012 Respectfully submitted, /s/ James G. Sotos, JAMES G. SOTOS, Atty No. 06191975

One of the Attorneys for Defendants

The Sotos Law Firm, P.C.. 550 East Devon, Suite 150. Itasca, Illinois 60143

630-735-3300, 630-773-0980 (fax)

V. Only the Remedy of Dismissal Can Adequately Redress Plaintiff’s Misconduct.

The foregoing demonstrates clear and convincing proof that Plaintiff intentionally posted confidential documents on the Internet in violation of this Court’s Order, filed a perjurious affidavit denying any relevant knowledge of the violation, misdirected the Court as to that knowledge, and then fabricated a false affirmative defense to blame everything on his wife.

In the face of that evidence, there is no remedy short of dismissal which will effectively deter parties from enlisting the jurisdiction of the federal courts, and then mocking and underminingits integrity and authority through fraudulent schemes such as the attempted cover-up that hasbeen perpetrated before this Court over the past year and a half.

Seventh Circuit precedent instructs that when a court is considering the appropriate sanction for misconduct, it should generally consider whether some sanction short of dismissal with prejudice is fair and appropriate. REP MCR Realty, L.L.C. v. Lynch, 363 F. Supp. 2d 984, 1010 (N.D. Ill. 2005).

But, in cases such as this, where the plaintiff’s conduct includes flagrant disregard of discovery orders and perjury, courts consistently find dismissal with prejudice is the only appropriate remedy. See, e.g., id. (granting motion for sanctions and dismissing with prejudice where plaintiff fabricated documents and perjured himself in affidavit submitted to court and testimony at sanctions hearing); Jackson v. Murphy, 468 Fed. App’x 616, 620 (7th Cir. 2012) (holding district court was within its discretion in exercising its inherent power to sanction prisoner by dismissing claims for filing false document and lying to court about it); Jimenez v. Madison Area Tech. Coll., 321 F.3d 652, 657 (7th Cir. 2003) (upholding dismissal with prejudice where plaintiff fabricated critical documents); Oliver v. Gramley, 200 F.3d 465, 466 (7th Cir. 1999) (holding district court did not have to consider less severe sanction before dismissing habeas petition with prejudice as sanction for fraud on the court); Quela v. Payco-General Am. Credits, Inc., No. 99 C 1904, 2000 WL 656681, at *7-8 (N.D. Ill. May 18, 2000) (dismissing case in response to creation of false witness statements and perjury); Rodriguez v. M&M/Mars, No. 96 C 1231, 1997 WL 349989, at *2 (N.D. Ill. June 23, 1997) (dismissing case with prejudice and stating “false testimony in a formal proceeding is intolerable”) (quoting ABF Freight Sys, Inc. v. NLRB, 510 U.S 317, 323 (1994)). “Not to dismiss a case for such blatant disregard of the judicial process would ‘erode the public’s confidence in the outcome of judicial decision, call into question the legitimacy of courts, and threaten the entire judicial system.’”

Rhodes v. LaSalle Bank, No. 02 C 2059, 2005 WL 281221, at *3 (N.D. Ill. Feb. 1, 2005) (quoting Dotson v. Bravo, 202 F.R.D. 559, 573 (N.D. Ill. 2001)); see also Salmeron v. Enterprise Recovery Sys., Inc., 579 F.3d 787, 793 (7th Cir. 2009) (in affirming dismissal under court’s inherent authority for leaking confidential materials to Wikileaks, court held “[s]anctions meted out pursuant to the court’s inherent power are appropriate where the offender has willfully abused the judicial process or otherwise conducted the litigation in bad faith.”) Indeed, a search of Seventh Circuit case law did not produce any cases in which a court found a party intentionally lied to the court and then issued a remedy less than dismissal with prejudice.

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Part 15 tomorrow.

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

Blake Horwitz

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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Part 15 tomorrow.

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

John Nelson

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).

egardless, 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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Part 14 tomorrow.

4. Why did Plaintiff fail to alert the Court to the evidence until December 2011?

Another compelling illustration of the fraud attempted on this Court is the contrived explanations Plaintiff and Horwitz offered for the delay between allegedly learning of Mrs. Seipler’s role in August 2011 and Plaintiff’s first effort to present his wife’s testimony to the Court over three and a half months later.

Plaintiff has advanced so many conflicting and transparently false explanations for his silence during this period that no reasonable person could realistically believe he was not responsible for creating and posting documents to Real MCSO.

At the time he allegedly learned about his wife’s revelations, Plaintiff claims he knew he was in “big trouble,” at risk of criminal prosecution, and having his case dismissed. (Id. at 335-36; see id. at 1494, 1662-63.)

Yet, the lack of any effort to bring this exonerating evidence to the Court throughout August, September, October, and November spoke volumes.

And the explanation the Seiplers and Horwitz tried to sell for that deafening silence wilted under scrutiny.

Initially, Plaintiff contended the Seiplers’ dire financial straits prevented them from getting to a lawyer before November. (Id. at 374-75, 433-34.)

But Mrs. Seipler stated it was her schedule that prevented her from getting to Rockford before then. (Id. at 1674-76, 1768.)

Second, Plaintiff and Horwitz went to impressive lengths to establish the need to protect Mrs. Seipler with an attorney (id. at 346, 355, 371-73, 377), all of which was contradicted by her testimony that she did not think she did anything wrong, and that she told her husband to simply come forward because it was not a big deal. (Id. at 1668-71.)

John Nelson

And, while Nelson valiantly tried to identify a conflict that held up the disclosure, his acknowledgment that Mrs. Seipler told him “her husband wanted her to sign an affidavit” likely offered the clearest window into Plaintiff’s behind-the-scenes efforts to convince his wife to take the blame for his misconduct. (Id. at 900-01, 906; see also 911.)

Indeed, Mrs. Seipler’s attorney, Giovaninni, conceded Horwitz could have just as easily researched Mrs. Seipler’s potential culpability as he. (Id. at 1420-21.)

The conflicts issue created by Horwitz was just another fraudulent exercise in misdirection, intended to explain the fact that Plaintiff could not or did not convince his wife to lie for him until after Magistrate Judge Mahoney referred the case to this Court on October 18, 2011.

As a result, it was not at all surprising that Nelson testified he first met with Mrs. Seipler on October 26, just over a week after that referral.[FN16] (Id. at 845.)

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FN16 Mrs. Seipler, on re-direct, offered the contradictory explanation that she was once on her way to Rockford to meet with Nelson, but had to turn back because he cancelled. (Id. at 1765-66, 1768.) Notably, Nelson never mentioned this during his testimony.

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Despite the rhetoric about conflicts and the need for lawyers, it was painfully obvious that if Mrs. Seipler were telling the truth about her blogging activity, all that would have happened if Plaintiff disclosed the evidence would have been the denial of Defendants’ motion, or perhaps some small sanction against Plaintiff for failing to keep her from accessing the documents.

Mrs. Seipler was not subject to the protective order, and it was obvious she would not have faced any criminal or civil sanctions, if she had, in fact, posted the documents.

Indeed, Horwitz’ rambling answer to this Court’s inquiry on July 24 as to the specific nature of any conflict perhaps, as much as anything, revealed the futility of his efforts to pin the failure to come forward with the evidence on any such conflict. (Id. at 912-18.)

In the end, the lack of any plausible explanation for failing to bring Mrs. Seipler’s alleged confession to the Court’s attention further establishes the fabricated nature of the affirmative defense.

Part 14 tomorrow.

3. How did Mrs. Seipler create Real MCSO with Plaintiff’s email address?

In her January deposition, Mrs. Seipler confirmed an email address was needed to create a blog, but when asked what email address she used to create “the blog that [she] posted the documents to,” she answered “I’m–It was–Again, I’d have to probably look at all that stuff. I don’t really recall. It was probably MCSD or MCSO, one of those two, blogspot.com. I mean I think it was that. I’m not sure.” (R.S. Dep. at 79-80.)

She then disavowed any familiarity with the email address SKNout4good@gmail.com, and stated she had never used her husband’s email address, zaneseipler@yahoo.com. (Id. at 80-81.)

Notably, she never testified or suggested at the deposition that she was not required to input an email address in order to create or access the blog.

Those answers established that Mrs. Seipler did not create Real MCSO because its creator  used SKNout4good@gmail.com (Ex. 33 at ¶ 20), the subscriber for which was “Zane Seipler,” who also submitted the secondary email address of zaneseipler@yahoo.com. (Ex. 33 at ¶ 6; Ex. 17 at 27.)[FN15]

Plaintiff’s effort to avoid the impact of that inculpatory evidence constituted yet another attempt to defraud the Court.

First, at the hearing, Mrs. Seipler suddenly recalled with detail that when she created Real MCSO, she did not have to submit an email. (Tr. 1465-67.)

Rather, she testified that when she accessed Google Blogspot, she was able to create Real MCSO without an email address because her computer was already logged into Google. (Id.)

When she created Shadow a few weeks later, the computer was not logged into Google, so she had to submit an email address, shadowmcsd@gmail.com. (Id.)

Mrs. Seipler attempted to demonstrate just how simple this was; however, she was woefully unable to create a blog in court. (Id. at 1703-14.)

Unsurprisingly, Plaintiff then demonstrated how easy it was to create a blog once you knew how, all of which only further indicated he created Real MCSO and Shadow. (Id. at 1807-21.)

And, Mrs. Seipler still had to explain her deposition testimony that an email was required to create the blog that she posted the documents to.

She tried, by testifying at the hearing that when she was speculating in her deposition about which email address she submitted, she was probably referring to Shadow. (Id. at 1738-39.)

Nonetheless, after a review of her deposition, she acknowledged, as she had to, that it appeared her answers related to Real MCSO. (Id. at 1792-97.)

In the end, Plaintiff’s effort to avoid the effect of the Google evidence, which established Plaintiff created Real MCSO using SKNout4good@gmail.com and zaneseipler@yahoo.com, fell flat.

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FN15 Plaintiff admitted he created SKNout4good@gmail.com. (Tr. 275.) Additionally, Plaintiff’s acknowledged blog (MCSD Exposed) was created using SKNout4good@gmail.com. (Ex. 33 at ¶ 27.)

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Part 13 tomorrow.