“It’s alive. Very alive,”
were the first words out of Zane Seipler’s attorney Blake Horwitz’ mouth as he left the courtroom Friday morning.
McHenry County Associate Judge Thomas Meyer ruled that former Deputy Sheriff and GOP primary election candidate for Sheriff Seipler may proceed in his case asking for the appointment of a special prosecutor to probe whether Sheriff Keith Nygren used taxpayer money to advance his campaign.
On behalf of the county, Assistant State’s Attorney Donald Leist has been arguing the suit should not be allowed to go forward.
Meyer echoed the view he shared in February that Bianchi’s reticence to investigate Nygren was key to his decision that the case asking for a special prosecutor should be allowed to go to trial.
As usual, the talk among the lawyers and Judge Meyer were pretty much inaudible.
Meyer did make clear, however, that two dozen counts of Seipler’s allegation would not be allowed to go to trial.
Those seemed to involve Amy Dalby’s case and that involving Kurt Milliman allegations.
In allowing something over forty-two other counts, Judge Meyer said, “I am giving every benefit of the doubt to the plaintiff.”
He observed that Seipler “has sufficiently provided a cause of action that I cannot strike the cause of action.”
The Judge also said he would not “entertain another motion to dismiss.”
Seipler attorney Blake Horwitz said he would refile the allowed counts without change.
He also said he would start with discovery, but Judge Meyer said he would not force the Sheriff to respond with a set deadline.
Explaining what had happened inside the courtroom, Liest said, “Now the county has to answer the allegations.”
Horwitz’ summary was longer.
“Bianchi’s letter put the nail in the coffin as to whether the State’s Attorney is available to investigate the Sheriff.”
Horwitz said that the allegations concerning theft and misappropriation of funds to promote Nygren’s campaign had been allowed. He was referring to Nygren’s campaign logos having been used on the wall of the Sheriff’s Office, vehicles and machines, its use on external and internal documents “on a massive scale.”
“All of these have nothing to do with his office,” Horwitz explained, pointing out they were “exclusively for his political campaign.”
Boiling down what happened in court, Horwitz said,
“It means that it is a viable claim that’s going to be litigated.”
Pressed about what the Judge thought of the claims, Horwitz replied,
“If they had been stricken, that would be be commenting on the merits of the claim.”
The allegations made by Deputy Kurt Milliman will not be litigated except to the extent that demonstrate the willingness of the State’s Attorney’s Office to investigate the Sheriff, “the breath of his (Bianchi’s) unavailability,’ as I understand what Horwitz said.
“I don’t know why they are defending it,” he continued. “It makes no sense.”
“How can an underling be doing this?”
(Click to enlarge the above motion that describes the interchange between Lou Bianchi and Blake Horwitz.)
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Below you can see the February 14, 2011, letter from McHenry County State’s Attorney Lou Bianchi which weighed so heavily on Judge Thomas Meyer’s mind.
I have added paragraphing to make it easier to read on a screen.
Mr. Blake Horwitz
The Blake Horwitz Law Firm
Two First National Plaza
20 S. Clark Street Ste. 500
Chicago, IL 60603
Dear Mr. Horwitz,
One of the goals set when I took office in 2004 was to minimize the use of outside counsel by maximizing the use of our civil division attorneys. We have accomplished that and with the exception of a few conflict cases, at a great savings to the taxpayers (estimated savings of $10,000.00 a week).
I am also proud of the fact that we have successfully defended the Sheriff in the several lawsuits brought against him and his office, never having lost a case, settling only two. This has also resulted in tax savings.
I am hoping this background helps explain our response to your recent letter.
During these past 6 years, as mentioned above, we have successfully defeated a great number of law suits filed against the Sheriff and his office.
Should we investigate the alleged complaints outlined in your Motion to Appoint a Special Prosecutor and/or prosecute the Sheriff for the alleged conduct, we could not continue to represent him in the lawsuits filed against him.
Furthermore, we may, in that case, be prohibited from representing the “People” in any criminal prosecution initiated by his deputies.
Having to hire outside counsel in those cases could be an enormous burden, resulting in hundreds of thousands of dollars, if not millions, of dollars of expense and costs to the County and the McHenry County taxpayers.
Accordingly, with very few minor exceptions, our office would not investigate the Sheriff, nor prosecute him, under circumstances where allegations have been made such as those asserted by your client in his Petition to Appoint a Special Prosecutor to Investigate Sheriff Nygren.
We want to make it clear that this Office of State’s Attorney has not, and will not, investigate the claims outlined in Mr. Seipler’s Petition and your recent letter for the reasons stated above.
With regards to a Special Prosecutor, our position has been and will always be the same, and that is, that one of three choices be utilized to act as special prosecutor:
- The Illinois Appellate Prosecutor,
- Attorney General, or
- a State’s Attorney from another county.
Any one of these options would result in no additional cost to the county and taxpayers. An annual fee is paid to the Appellate Prosecutor to represent the county in cases such as this, and accordingly, they remain open and available to act in that capacity.
Very truly yours,
Louis A. Bianchi