Appendix — Gorecki v. Carlson

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No. OFFICE oe

In the

Supreme Court of the Anited States

MARY E. GORECKI,

Petitioner,

PHILIP D. CARLSON and THOMAS R. SMITH,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

JAMES G. SOTOS

MICHAEL D. BERSANI

HERVAS, SOTOS, CONDON

& BERSANI, P.C.

333 Pierce Road, Suite 195

Itasca, Illinois 60143

(630) 773-4774

Attorneys for Petitioner

Midwest Law Printing Company/Photex — Chicago — (312) 321-0220

APPENDIX TABLE OF CONTENTS

Opinion of the Court of Appeals for the

sisitinrssnetc, ce, mt ree Ce 1-9

July 23, 2004 Seventh Circuit Order Denying

Petition Sr Rehearing .......................... 10

March 12, 2003 District Court Order Denying

Motion for Summary OUGgMONt................ 11-16

Second Amended eee ere 17-30

Motion for Summary aR EEI Str eens a 31-43

Local Rule 56.1 Statement of Uncontested

Material Facts in Support of Defendant

Mary E. Gorecki’s Motion for

Summary Judgment ......................._. 44-80

Plaintiff's Response to Defendant’s Statement

of Uncontested Facts and Plaintiff's Statement

of Additional Material Facts Pursuant to

SAME TNE PE osc. cies ok 81-183

Defendant’s Response to Plaintiff's Statement

of Additional Material Facts ............___. 184-319

App. 1

In the

United States Court of Appeals

For the Seventh Circuit

No. 03-1732

PHILLIP D. CARLSON and THOMAS R. SMITH,

Plaintiffs-Appellees,

Mary E. GORECKI,

Defendant-Appellant.

Appeal from the United States District. Court

for the Northern District of Illinois, Eastern Division.

No. 01 CV 9235—Charles R. Norgle, Sr., Judge.

ARGUED APRIL 15, 2004—DECIDED JUNE 29, 2004

Before FLAUM, Chief Judge, and MANION and ROVNER,

Circuit Judges.

MANION, Circuit Judge. Phillip Carlson and Thomas

Smith worked as special investigators for the Kane

County, Illinois, State’s Attorney’s office. In December

2000, defendant Mary Gorecki, the Kane County State’s

Attorney, fired Carlson and Smith allegedly because of

their speech on matters of public concern, namely, their

support of Gorecki’s opponent in the election and their

allegations that Gorecki was involved in various jobs-for-

favors and kickback schemes. Carlson and Smith filed this

action under 42 U.S.C. § 1983, asserting that Gorecki’s

decision to fire them violated the First Amendment. After

discovery, Gorecki filed a motion for summary judgment

asserting that Carlson and Smith occupied policymaking

App. 2

or confidential positions and that she was entitled to

qualified immunity. The court denied Gorecki’s motion.

She appeals, and for the following reasons, we affirm.

Both Phillip Carlson and Thomas Smith were hired as

special investigators by the former Kane County State's

Attorney, David Akemann. As investigators, both Carlson

and Smith were routinely called upon, for example, to lo-

cate witnesses, serve subpoenas, transport witnesses to

court, and interview witnesses. Both were supervised by

an Assistant State’s Attorney, John Barsanti. Beginning in

1986, Barsanti supervised investigators in the Kane

County State’s Attorneys’ office. According to Barsanti, the

main duty of Carlson and Smith was serving subpoenas.

Both Barsanti and former State’s Attorney Akemann

testified that political affiliation did not matter to the

investigator position. The evidence presented shows that

neither Carlson nor Smith participated in the

policymaking decisions of the office, and that political

affiliation was not regarded as important to the job of

investigator. Barsanti emphasized that the investigators

were not given discretion in performing their jobs, but that

on the rare occasions that the investigators were asked to

“investigate” matters, they were instead given specific

tasks to accomplish, such as taking a photograph of a

building.

Gorecki won the election and replaced Akemann as Kane

County State’s Attorney. On her first day at work as

state’s attorney in December, 2000, she fired' Carlson after

’ Gorecki maintains that the position of special investigator, a

statutory appointment by the state’s attorney, runs concurrently

(continued...)

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App. 3

he had been on the job for four years and Smith after he

had been on the job for two years. For purposes of this

appeal, it is undisputed that Gorecki fired Carlson and

Smith because she viewed them as her political enemies

and blamed them for an attempt to smear her politically.

Carlson and Smith supported Gorecki’s opponent in the

primary election, and Gorecki blamed Carlson for exposing

information regarding Gorecki’s alleged involvement in

kickback and _ jobs-for-favors schemes prior to taking

office.” Gorecki similarly blamed Smith for authoring and

circulating a letter criticizing her during the election for

Kane County State’s Attorney. According to Gorecki,

despite the fact that she shared the same party affiliation

as Carlson and Smith, they were her “political enemies.”

After Carlson and Smith were fired, they filed this

§ 1983 suit against Gorecki alleging a First Amendment

violation. Gorecki filed a motion for summary judgment on

the grounds of qualified immunity, arguing that Carlson

' (...continued)

with the tenure of the appointing state’s attorney. Thus, accord-

ing to Gorecki, she did not fire Carlson and Smith, but merely

refused to reappoint them as special investigators. Gorecki does

acknowledge, however, that regardless of her statutory argu-

ment, “holdover” situations are possible. The plaintiffs claim that

they were holdover employees and were fired by Gorecki on

December 1, 2000. This factual dispute is immaterial because

Rutan v. Republican Party of Ill., 497 U.S. 62, 79 (1990), prohib-

its hiring, as well as firing, based on political affiliation when po-

litical affiliation is not appropriate for effective performance of

the job. For ease of reference. we will regard the plaintiffs as

fired from their jobs.

* The exposure of this information led to the Illinois bar authori-

ties’ decision to suspend Gorecki from the practice of law for a

period of four months in 2003 due to statements she made in

violation of the Rules of Professional Conduct. See In re Gorecki,

No. 96299, 2003 WL 22725624 (III. Nov. 20, 2003).

App. 4

and Smith were policymakers or confidential employees.

Gorecki admits that she fired Carlson and Smith solely for

political reasons, i.e., their public support of her opponent

and public criticism of her reputation for honesty. The

court granted Carlson and Smith the right to take limited

discovery before it ruled on the motion. Carlson and Smith

deposed Barsanti, the First Assistant State’s Attorney, and

Akemann, the former State’s Attorney.

Gorecki, in support of her argument that the plaintiffs

were policymakers or confidential employees, relied on the

evidence that investigators serve at the pleasure and dis-

cretion of the state's attorney and that statute provides

that the state’s attorney has the sole power to appoint,

remove, and discipline a special investigator. The state’s

attorney is also permitted by statute to assign a special

investigator to investigate civil, criminal, and

administrative matters and serve as an agent of the grand

jury. Of course, any investigation conducted by the special

investigator is considered confidential, as are any

conversations between the special investigator and the

state's attorney or supervising assistant state’s attorney.

Likewise, the assignment involves a position of trust. The

court, however, denied Gorecki’s motion for summary

judgment by finding that there were material issues of fact

in dispute concerning whether the job of special

investigator is a policymaking or confidential position.

II.

We review de novo the district court’s decision to deny

Gorecki’s motion for summary judgment on qualified im-

munity grounds. Beauchamp v. City of Noblesville, 320

F.3d 733, 742 (7th Cir. 2003). We start with the general

proposition that public employees may not be made to

suffer adverse job actions because of their political beliefs.

Rutan v. Republican Party of Ill., 497 U.S. 62, 79 (1990);

——— ,

App. 5

Elrod v. Burns, 427 U.S. 347 (1976). An exception to this

genera] rule is permitted when the government employee

responsible for the adverse action can demonstrate that

party affiliation is an appropriate requirement for the

effective performance of the public office involved. See, e.g.,

Branti v. Finkel, 445 U.S. 507, 517-18 (1980).

Traditionally, we have referred to this exception for ease

of reference as the “policymaking” or “confidential” em-

ployee exception because those terms fit the majority of

situations where the exception applies. See Hudson v.

Burke, 913 F.2d 427, 431 (7th Cir. 1990). The ultimate

inquiry, however, is not a search for whether the job fits

the appropriate label “policymaker” or “confidential,” but

whether party affiliation is an appropriate requirement for

performing the job. See Thompson v. Illinois Dept. of

Professional Regulations, 300 F.3d 750, 755-56 (7th Cir.

2002). Whether party affiliation is an appropriate

requirement for performance of the job is determined by a

functional test that examines the powers and duties

inherent in the position. See Hudson, 913 F.2d at 431. This

inquiry considers both the historical treatment of the

position and the actual work performed by the people who

hold the position. See id. at 433; Flenner v. Sheahan, 107

F.3d 459, 465 (7th Cir. 1997): Thornburg v. Peters, 155 F.

Supp. 2d 984, 990-91 (C.D. Ill. 2001).

At the outset, Gorecki errs by focusing solely on whether

the special investigator position fits within the “policy-

maker” or “confidential” labels. She ignores the broader

and determinative question of whether party or political

affiliation is an appropriate requirement for the job. See

Thompson, 300 F.3d at 755-56. In fact, there is sufficient

evidence in the record to defeat Gorecki’s motion for sum-

mary judgment, including Barsanti’s deposition, indicating

that political affiliation was not important to the job.

Gorecki’s reliance on Hudson is misplaced, because there

App. 6

we found that the plaintiff investigators who were fired by

the City of Chicago contributed to controversial political

decisions made by the politically charged city finance com-

mittee. See Hudson, 913 F.2d at 433. In Hudson, we found

that the investigator position was inherently political in

nature and involved investigators who were hired pri-

marily due to their political affiliation. Jd. at 432

(“Political affiliation was a primary reason [plaintiffs] were

hired; all performed political work.”). Here, in contrast,

there is sufficient evidence for a jury to reject Gorecki’s

claim that the special investigator position contributed to

political decisions or that the holders of the office were

hired primarily due to their political affiliation.

Gorecki’s decision to entirely eliminate the special inves-

tigator position after firing Carlson and Smith also makes

it difficult for Gorecki to establish that political affiliation

is important to the job. Compare id. at 433 (considering

the job responsibilities of those who replaced the plaintiff

investigators who were fired). In addition, the government

official in Hudson testified that he envisioned an expanded

role for the investigator position, including additional in-

vestigatory duties involving sensitive political information.

See id. In contrast, Gorecki has failed to submit evidence

that the investigators handled sensitive political

information or even that she intended to use the job for

that purpose in the future. It is possible to infer from

Gorecki’s decision to eliminate the special investigator

position not only that it was a non-patronage job, but also

that the position was not important at all for the

functioning of the office.

Turning to Gorecki’s focus on the policymaking and con-

fidential monikers, as stated, we look both to the historical

treatment of the job and to the work performed by those

who presently hold the position to determine the inherent

nature of the job. See id.; Flenner, 107 F.3d at 465;

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App. 7

Thornburg, 155 F. Supp. 2d at 990-991. Much if not most

of the evidence in the record reveals that the position

involved almost exclusively ministerial functions such as

locating witnesses, serving subpoenas, transporting

witnesses to court, and interviewing witnesses. The special

investigators had little, if any, direct contact with the

State's attorney and were instead supervised by an

assistant state’s attorney. The state’s attorney's office was

not a small, intimate setting, but instead had over 30

assistant state’s attorneys, in addition to various staff

members. But see Matlock v. Burns, 932. F.2d 658, 665 (7th

Cir. 1991) (acknowledging that at least in a small office

setting. political animosity can be a legitimate basis for

firing by an elected official forced to have constant, direct

contact with a person viewed as a political enemy).

Gorecki’s evidence, at best, shows that the position has

the potential to impact policy. This is unhelpful, because

all jobs under the authority of the state’s attorney have

this potential, depending upon how the state’s attorney

uses the position. The special investigator position, like

any other job at the state’s attorney office, requires a

certain degree of confidentiality. Access to confidential

information alone, however, does not mean that the job is

confidential for purposes of applying the confidential

employee exception to the ban on patronage dismissals.

See id. at 665. Access to confidential files by a lower-level

employee who, while not a policymaker, is openly

politically hostile, may be reason for termination.

However, as stated, the potential, speculative uses of the

position are not significant in this case because we are

construing the facts in the light most favorable to the

plaintiffs, and because Gorecki has eliminated the position

without submitting any evidence that she will resurrect it

with a political focus.

Finally, based on this record, Gorecki is not entitled to

qualified immunity. The cloak of qualified immunity is re-

App. 8

moved from a government official if the plaintiffs show

that the law prohibiting the government official’s conduct

was “clearly established.” Gregorich v. Lund, 54 F.3d 410,

413 (7th Cir. 1995). The test for whether the law was

clearly established must be conducted based on the specific

facts of the case, and not at a high level of generality. See

Greenberg v. Kmetko, 922 F.2d 382, 383-84 (7th Cir. 1991).

Here, the plaintiffs have met their burden because this

case is remarkably analogous to Matlock, 932 F.2d at 662.

In Matlock, we held that a City of Gary, Indiana, law

department investigator with the primary duties of inves-

tigating claims by visiting accident sites, interviewing

witnesses, taking pictures, and preparing written

recommendations was not a policymaker or: confidential

employee. Matlock, 932 F.2d at 664.

Based on the record, Carlson and Smith had less dis-

cretion and responsibility than the legal investigator in

Mailock. As far as we know from the summary judgment

record, the main duties of Carlson and Smith were

ministerial functions such as locating witnesses, serving

subpoenas, transporting witnesses to court, and

interviewing witnesses. On the rare occasions that they

were required to submit a report, the report was merely

factual and did not contain recommendations. In Matlock,

we rejected the government’s arguments that the

investigator was a policymaker because he exercised a

great deal of discretion in how he carried out

investigations, and we also rejected the claim that the

position was confidential because the investigator had

unlimited access to confidential files. See id. at 662.

Essentially, Gorecki is making the same argument here.

Her claim of qualified immunity fails because the record

shows that Carlson and Smith had jobs involving functions

more ministerial than the functions of the investigator in

Matlock. See Upton v. Thompson, 930 F.2d 1209, 1213 (7th

Cir. 1991) (holding that a strictly menial government

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App. 9

worker is clearly and completely protected from patronage

firing). The special investigator position in Kane County

was menial to such an extent that, after the firing of

Carlson and Smith. the position was entirely eliminated.

In closing, we emphasize the limited nature of our hold-

ing that is dictated by the specific and somewhat limited

facts of this record. A state’s attorney is clearly not

prohibited from utilizing the position of special

investigator as a policymaker or confidant so as to make

political affiliation an appropriate consideration for the

job. Here, the defendant has presented no evidence that

the positions the two plaintiffs held rose to a level

requiring political sensitivity. The nonessential quality of

these jobs is underscored by the fact that Gorecki saw no

need to fill the vacancies created.

Il.

The district court properly denied Gorecki’s motion for

summary judgment. Gorecki has failed to submit sufficient

evidence for us to conclude as a matter of law that party

affiliation is an appropriate requirement for the special in-

vestigator position. Instead, substantia] evidence shows

that the position involves primarily ministerial tasks such

as locating witnesses, serving subpoenas, transporting wit-

nesses to court, and interviewing witnesses. Carlson and

Smith have met their burden of identifying closely

analogous case law prohibiting a very similar political

firing of a legal investigator, and Gorecki is thus not

entitled to qualified immunity. For these reasons, we

AFFIRM the decision of the district court.

App. 10

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

July 23. 2004

Before

Hon. Joel M. Flaurn, Chief Judge

Hon. Daniel A. Manion, Circuit Judge

Hon. Ilana Diamond Rovner, Circuit Judge

No. 03-1732

Phillip D. Carlson

and Thomas Smith

Appeal from the United

States District Court

Plaintiffs-Appellees, for the Northern District

of Illinois, Eastern

v. Division

Mary E. Gorecki, No. 01 C 9235

Defendant-Appellant.

Charles R. Norgle, Sr.,

Judge.

a i i a a

ORDER

On consideration of the petition for rehearing en bane filed

by defendant-appellant, no judge in active service has

requested a vote on the petition for rehearing en bane, and all

of the judges on the original panel have voted to deny

rehearing. The petition is therefore DENIED.

App. 1]

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

Defendant’s Motion for Summary Judgement

Carlson and Smith

v. Case Number 01 C 9235

Charles Norgle, Judge

Gorecki

a [Other Docket entry] Before the Court if Defendant’s

Motion for Summary Judgment [18- 1). For the

following reasons, Defendant's motion is denied.

[For further detail see order on reverse side of the

orginial minute order. ]

Dated 3/12/2003

App. 12

Plaintiffs, Phillip D. Carlson and'Chomas R. Smith, two

former Special Investigators for the Kane County State's

Attorney Office, bring this action for retaliation in violation of

the First and Fourteenth Amendment of the United States

Constitution. Defendant, Mary 1W. Gorecki, currently the

State's Attorney of Kane County, Illinois, was elected on

November 7, 2000. Prior to winning the election, Plaintiffs

publicly spoke out against Defendant's qualifications for the

position and supported Defendant's opponent. It is also

alleged that Plaintiffs were involved in activities which lead

to an Attorney Registration and Disciplinary Committee

("A.R.D.C.") investigation of Defendant regarding her

involvement in an illegal jobs-for-favors scheme. Defendant's

law license was later suspended as a result of this

investigation. On December 1, 2000, Defendant terminated

Plaintiffs employment on her first day in office. Defendant

now moves for Summary Judgment based on the defense of

qualified immunity.

Summary judgment is permissible when "there is no

genuine issue as to any material fact and ... the moving party

is entitled to judgment as a matter of law." Fed. R. Civ. P.

56(c)- The court views the record and all reasonable

inferences drawn therefrom in the light most favorable to the

non-moving party. Fed. R.Civ. P. 56(c), see also. Perdomo v.

Browner, 67 F.3d 140, 144 (7th Cir.1995). "In the light must

favorable" simply means that sunintaryjudgment is not

appropriate ifthe court must make "a choice of inferences."

See United States v. Diebold. Inc., 369 U.S- 654, 655 (1962),

see also, First Nat'l Bank of Arizona v. Cities Service Co., 391

U.S. 253, 280 (1968); Wolf v. Buss (America) Inc., 77 F.3d 914,

922 (7th Cir- 1996). The choice between reasonable inferences

from facts is ajury function. Sec Anderson v. Liberty Lobby.

Inc, 477 U.S. 242, 255 (1986).

Individual government officials sued under § 1983 may

assert the defense of qualified immunity. See generally

Saucier v. Katz, 533 l!-S. 194 (2001). Qualified immunity is a

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App. 13

two-step analysis. See id. at 2156. The first step is to

determine if there is a constitutional violation present on the

facts alleged, when construed most favorably to the party

asserting the injury. See Saucier, 533 U.S. 194 at 201. If the

plaintiff presents a constitutional injury, the second step is to

determine whether the right was clearly established at the

time. See id. 1-he second step "must be undertaken in light of

the specific context of the case, not as a _ general

proposition..." Id. "[T]he right allegedly violated must be

defined at an appropriate level of specificity before a court can

determine if it was clearly established." Id. at 202 (quoting

Wilson v. Layne, 526 U.S. 603, 615 ( 1999). "The concern of the

immunity inquiry is to acknowledge that reasonable mistakes

can be made as to the legal constraints on particular [official]

conduct... Saucier. 121 S. Ct at 2158. "If the fofficial's]

mistake as to what the law requires is reasonable ... the

[official] is entitled to the immunity defense.” [d. Saucier

demands that the court specifically define the constitutional

inquiry according to the facts of the case, and construe facts

and inferences in favor ofthe plaintiff. See 121 S. C't at 2156;

McNair, 279 F-3d at 465-66.

After reviewing the parties’ briefs and supporting

documents. the court finds that summary judgment is

inappropriate. The question ofwheihcr Plaintiffs’ received a

constitutional injury depends upon the inherent nature ofthe

position ofState's Attorney Special Investigator. See liudson

v. 13ttrke, 913 F.2d 427, 43 1 (7th Cir. 1990). The test is

"whether party affiliation is an appropriate requirement for

the effective performance of the office involved." Branti v.

Finkel, 445 U.S. 520, 518 (1980); Hudson, 913 F.2d at 431.

Specifically, the focus should be on the duties inherent in the

office or position, not the particular functions performed by a

particular member of the office. Hudson, 913 F.2d at 431-

"The First Amendment prevents the governnment, except in

the most compelling circumstances, from wielding its power

to interfere with its employees' freedom to believe and

App. 14

associate Rutan V. Republican Party of Illinois, 110 S.Ct.

2729. 2738 (1990); Wainscott v. Henry. 3 15 F.3d 844, 854

(7th Cir. 2003).

Here, Defendant claims she did not violate Plaintiffs' First

and Fourteenth Amendment rights by terminating their

employment. Sec Del-.'s Reply Mem- in Supp. of its Mot. for

Sunma. J. at 4-5- Defendant argues that the record supports

file notion that the position of Special Investigator is

inherently a policymaking or confidential position requiring

political loyalty. jd Defendant also claims that the position nl

Special Investigator can significantly impact policy decisions

within the Office of the State's Attorney. dg . at 4. The court,

however, is not convinced that tine record supports

Defendant's position. Drawing all reasonable inferences in the

light most favorable to Plaintiffs, a reasonable jury could infer

otherwise. See Fed. R. Civ. P. 56(c).

Furthermore, even if Defendant's contentior. is true, there

is enough evidence in the record for a reasonable jury to infer

that Defendant tired Plaintiffs not for the governmental

reasons related to the inherently political nature of the

position of Special Investigator, but for reasons of political

retaliation. See Branti, 445 U.S. at 517 n.12. To show

retaliation, Plaintiffs must establish a "chronology of events

from which retaliation can be inferred.’ Black v. Lane, 22 F.3d

1395, 1399 (7th Cir. 1994) (quotations and citations omitted).

Here, Plaintiffs have shown that Defendant was well aware

of the fact that while she was campaigning, Plaintiff Smith

circulated a letter publicly questioning Defendant's

qualifications for the position. Del.'s Mot. for Sunun. J., Ex. A

at 9,1( 'j 34-35. This alone is enough to raise a genuine issue

of material fact sufficient to deny Defendant's motion. See

Myers v. Ilasara, 226 Fad. 821, 828 (7th Cir. 2000).

Additionally, a question exists regarding whether or not, prior

to Plaintiff's' dismissal, Defendant blamed Plaintiff Carlson

for her troubles with the A.R.D.C. Sec Pl.'s Resp. to Def.'s

Mot. for Suntan. J., Ex. 6 at 144. Again, drawing all

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App. 15

reasonable inferences in favor of I'Tuinlifl's, the court cannot

Say as a matter of law that Defendant did not terminate

Plaintiffs' employment for retaliatory reasons. Therefore. the

court need not go any further with its analysis.

For the reasons stated above, Defendant's Motion for

Summary Judgement is denied.

App. 16

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

Carlson and Smith

v. Case Number 01 C 9235

Charles R. Norgle, Judge

Gorecki

eS [Other Docket entry] Before the Court if Defendant’s

Motion for Summary Judgment [18-1]. For the

following reasons, Defendant's motion is denied.

Dated 9/10/2004

App. 17

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Phillip D. Carlson

and Thomas Smith

)

Plaintiffs, ) No. 01 C9235

)

v. ) Charles R. Norgle, Sr.,

) Judge Presiding.

Mary E. Gorecki, )

Defendant. ) JURY REMANDED.

)

SECOND AMENDED COMPLAINT

Now comes the Plaintiffs, PHILLIP D. CARLSON and

THOMAS R. SMITH, Plaintiffs, by and through their

attorneys, John P. De Rose and Associates, and complain of

Defendant Mary E. GORECKI, and in support thereof state

as follows:

JURISDICTION

1. That this action is brought pursuant to 29 U.S.C. § 623,

the Civil Rights Act of 1871, 42 U.S.C. § 1983, the Civil

Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. §

1988, the Constitution of the United States of America,

and the State of Illinois Constitution. The jurisdiction

of this Honorable Court is invoked pursuant to 28

U.S.C. § 1331 and 1343 and its jurisdiction over

pendent state law claims.

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App. 18

PARTIES

That Plaintiff, PHILLIP D. CARLSON, (hereinafter

sometimes referred to as “Plaintiff Carlson"), is a

resident of the State of Illinois and a citizen of the

United States of America.

That Plaintiff, THOMAS R. SMITH, (hereinafter

sometimes referred to as "Plaintiff Smith"), is a resident

of the State of Illinois and a citizen of the United States

of America.

That Defendant Mary E. GORECKI was at all times

hereinafter mentioned acting under state law as the

State's Attorney of the County of Kane.

FACTS

That Plaintiff Carlson was hired to be an investigatorfor

the Kane County State's Attorney's Office in April 1996.

That Plaintiff Smith was hired to be an investigator for

the Kane County State's Attorney's Office in August

1999.

That prior to his hiring, Plaintiff Smith had over thirty

(30) years experience in investigative and law

enforcement work for the Cook County Sheriffs Police's.

That prior to his hiring, Plaintiff Carlson had over

twelve (12) vears experience in investigative work for

the Illinois Secretary of State's Office.

That prior to Defendant Mary E. Gorecki's assumption

of the Kane County State's Attorney's Office, Plaintiffs

had always enjoyed the highest professional reputations

as investigators and law enforcement officers for the

State's Attorney's Office.

10. That during the primary campaign for the Office of

Kane County State's Attorney, evidence came to light of

ee ee re Cee

—s

11.

13.

14.

15.

16.

17.

App. 19

potential wrongdoing by Defendant Mary E. Gorecki as

a candidate for the position of State's Attorney.

That in or about June 1999 Plaintiff Carlson discovered

that Defendant Mary E. Gorecki had been circulating

false and politically damaging election materials

concerning the Honorable James T. Doyle, a sitting

judge and candidate for retention to the Sixteenth

Judicial District.

. That speaking out on a matter of public concern that

Kane County be served by an honest and competent

judiciary, Plaintiff Carlson advised Judge Doyle that

the source of the false and politically damaging election

materials was Defendant Mary E. Gorecki.

That shortly thereafter, Judge Doyle confronted

Defendant Mary E. Gorecki about the false and

politically damaging election materials, and she

admitted that she was involved in the distribution of

the materials.

That during the confrontation, Defendant Mary E.

Gorecki was advised that Judge Doyle had learned of

her involvement from PlaintiffCarlson.

That thereafter, in retaliation for having exposed her

involvement, Defendant Mary E. Gorecki started a

Systematic attack on the integrity and honesty of

Plaintiff Carlson. |

That prior to and after becoming Kane County State's

Attorney Defendant Mary E. Gorecki falsely accused

Plaintiff Carlson of threatening her mother's job and

made public and false statements that Plaintiff Carlson

was unskilled, unqualified and uncertified aS @ peace

officer.

That in February 2000 Defendant Mary E. Gorecki left

a series of tape recorded messages to Deputy Sheriff

18.

19.

20.

21.

22.

23.

24.

25.

App. 20

Jane Morrison offering to get a job for Ms. Morrison's

husband in the Kane County Highway Department in

exchange for campaign contributions to certain Kane

County officials and an additional ten to fifteen (10% to

15%) of the first year's salary realized for such a job.

That on March 2, 2000 the tape recordings and

allegations that Gorecki talked to Morrison about a

kickback surfaced just weeks before the Republican

primary in which Defendant Mary E. Gorecki was

challenging incumbent David Akemann for the office of

State's Attorney of Kane County.

That Defendant Mary E. Gorecki initially denied that it

was her voice on the tape recordings.

That on March 21, 2000 Defendant Mary E. Gorecki

won the primary election for the Republican nomination

for the office of Kane County State's Attorney.

That prior to Defendant Mary E. Goreck. becoming

Kane County State's Attorney, she falsely identified

Plaintiff Carlson of being the individual involved in a

kickback scheme for jobs in Kane County.

That on or about September 1, 2000 Defendant Mary E.

Gorecki publicly admitted to leaving the taped

messages.

That Defendant Mary E. Gorecki later publicly

admitted that she had talked to Morrison about a

county job, claimed it was a joke, and denied talk of a

kick back.

That State's Attorney Akemann requested that a

Special Prosecutor be appointed to investigate the

allegations of wrongdoing by Defendant Mary E.

Gorecki.

That on or about September 8, 2000 Kane County Chief

Judge Grant Wegner appointed Daniel D. Doyle, a

26.

28.

29.

30.

31.

App. 21

former judge from Rockford to investigate the

allegations of wrongdoing by Defendant Mary E-.

Gorecki.

That the investigation by the Special Prosecutor found

cause for and did forward the results of his

investigation to the Attorney Registration and

Disciplinary Commission.

. That Defendant Mary E. Gorecki falsely and publicly

Stated that she had been exonerated of any wrongdoing

through investigations conducted by the Federal Bureau

of Investigation, the Illinois Attorney General's Office,

and Appellate Court Prosecutor's Office, and Special

Prosecutor Daniel D. Doyle.

That these false and public statements were reported

widely throughout Kane County print and electronic

media,

the tape recorded messages.

elected Township Precinct Committeeman of the

Republican Party, in an exercise of free speech on a

matter of public concern that Kane County be served by

That during the election campaign, Plaintiffs Carlson

and Smith, in an exercise of free speech on a matter of

public concern, openly expressed their support for the

candidate opposed to Defendant Mary E. Gorecki in the

State's Attorney's race.

33.

34.

35.

36.

38.

App. 22

. That on November 7, 2000 Defendant Mary E. Gorecki

defeated Robert Steffen in the Kane County State's

Attorney's race.

That on December 1, 2000, on her first day in office,

Defendant Mary E. Gorecki called a meeting with

Plaintiffs.

That during that meeting, Plaintiff Thomas R. Smith

presented Defendant Mary E. Gorecki with a copy of the

letter that he had authored and circulated to his

constituency.

Plaintiff Smith advised Defendant Mary E. Gorecki that

he did not want her to learn of the document from any

other source but him and pledged to her that he would

continue to serve the State's Attorney's Office and the

citizens of Kane County with honesty, integrity, and

professionalism as a member of the State's Attorney's

investigator staff.

That at that meeting in which other members of her

campaign staff were in attendance, Defendant Mary E.

Gorecki summarily dismissed and discharged Plaintiffs

from their positions as investigators for the Kane

County State's Attorney's Office.

. That said dismissals and discharge were in retaliation

for Plaintiffs having spoken out on matters of public

concern regarding the integrity and competency of

Defendant Mary E. Gorecki to serve as Kane County

State's Attorney and the perception by Defendant Mary

E. Gorecki that Plaintiffs "whistleblew" to law

enforcement agencies and the Attorney Registration

and Disciplinary Commission about her alleged

wrongdoing.

That Defendant Mary E. Gorecki, in an attempt to

embarrass Plaintiffs, had them unceremoniously

escorted from the building.

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App. 23

39. That following their open expressions of speech on

matters of public concern to the Kane County

community as aforesaid. Plaintiffs were terminated as

investigators with the Kane County State's Attorney's

Office on December 1, 2000.

CAUSES OF ACTION

COUNT I

Retaliation in Violation of First and Fourteenth Amendment

1-39. Plaintiffs re-allege Paragraphs | through 39 of this

Second Amended Complaint as Paragraphs 1] through

39 of Count I as though fully set forth herein.

40. That Kane County has a custom and policy of using

governmental power as an instrument of oppression to

Suppress employees from expressing their beliefs and/

or opinions on matters of public concern.

41. That prior toand immediately after assuming the Office

of Kane County State's Attorney, and in an attempt to

retaliate against Plaintiffs for their exercise of free

speech on a matter of public concern, Defendant Mary

E. Gorecki made public statements that Plaintiffs were

dismissed because they were unqualified.

42. That prior to and after becoming Kane County State'

43. That prior to and after becoming Kane County State's

44.

46.

48.

49.

50.

App. 24

That because of the false statements made by

Defendant Mary E. Gorecki in retaliation of their

exercise of free speech on a matter of public concern,

Plaintiffs suffered irreparable harm to their personal

and professional reputations.

. That although the job performance of and by Plaintiffs

sufficiently met the legitimate expectations of Kane

County, their employment was terminated without

cause, justification or prior warning, by Gorecki when

she became Kane County State's Attorney

That Plaintiffs spoke out on matters of public concern,

to wit:

a) the need for honesty and integrity of candidates for

public office in Kane County; and

b) the honesty and integrity of Defendant Mary E.

Gorecki to serve as the chief law enforcement officer of

Kane County.

. That Plaintiffs strongly opposed, in public meetings

and/or written communications to their constituency,

the candidacy of Defendant Mary E. Gorecki because of

her public statements of denial and later admission of

involvement in a kick back scheme.

That Plaintiffs criticized Defendant Mary E. Gorecki for

reportedly using her "influence" to guarantee

employment with a public entity in exchange for

financial kickback.

That Defendant Mary E. Gorecki made public

statements critical of Plaintiffs and contended that they

were not fit and properly credentialed to be

investigators for the Kane County State's Attorney's

Office.

That Plaintiffs' interest in acting as responsible

citizens, and in speaking out on the actions described

oo i

59.

52.

54.

App. 25

above support their claims to constitutional protection

of their First Amendment freedom of speech.

. That Plaintiffs were engaged in conduct protected by

the First Amendment.

Bhs Ze hes

That as a result of the Previously mentioned acts,

Defendant Mary E. Gorecki, acting under color of state

law as the agent of County of Kane, has deprived and

continues to deprive Plaintiffs of their rights under the

First Amendment of the United States Constitution and

the Illinois Constitution in violation of 42 U.S.C. § 1983.

. That the acts of Defendant Mary E. Gorecki were and

are the proximate cause of injury and damage to

Plaintiffs.

That the action taken by Defendant Mary E. Gorecki to

terminate Plaintiffs for their right of free expression

irreparably harmed Plaintiffs.

and reckless indifference to the rights of Plaintiffs. 56.

That the actions of Defendant Mary E. Gorecki were

taken with deliberate Oppression and were taken

willfully or with such Gross negligence as to indicate

wanton disregard for the rights of Plaintiffs.

. That the actions of Defendant Mary E. Gorecki were the

result of a vindictive campaign to terminate Plaintiffs

in violation of their First Amendment rights to speak

out on matters of public concern.

personnel.

That the actions of Defendant Mary E. Gorecki were

actions taken in a spiteful effort to get rid of Plaintiffs

60.

61.

63.

64.

69.

App. 26

for reasons wholly unrelated to anv legitimate state

objective.

That Plaintiffs were not policy-making or confidential

employees. ;

That political fidelity is not a bona-fide criterion to

performing the duties of special investigator.

. That Plaintiffs position required little or no contact

with the State's Attorney and job assignments were

initiated by the several Assistant State's Attorney in

the office who also oversaw the day to day activities of

the investigators.

That Defendant Mary E. Gorecki did, in fact, deprive

Plaintiffs of their rights by terminating their

employment in retaliation for Plaintiffs' speech on

matters of public concern.

That actions of Defendant Mary E. Gorecki in

terminating Plaintiffs are likely to chill the exercise of

constitutionally protected speech of others in a

comparable position.

. That Plaintiffs’ employment was terminated without

cause or justification or prior warning.

. That Defendant Mary E. Gorecki was aware of

Plaintiffs' activities in furtherance of public policy.

. That no reasonable cause or justification existed to

discharge Plaintiffs from their employment.

. That by wrongfully discharging Plaintiffs without cause

or justification, and for retaliatory reasons set forth

above, Defendant Mary E. Gorecki acted willfully and

with malice toward Plaintiffs.

That as a direct and proximate result of the wrongful

and unlawful termination, Plaintiffs have suffered the

loss of their employment, the loss of their salary and

App. 27

benefits, and damage to their reputation and future

earning potential.

WHEREFORE, Plaintiffs, PHILLIP D. CARLSON and

THOMAS R. SMITH respectfully pray for Judgment for

each of them and against Defendant Mary E. Gorecki as

follows:

A. compensatory damages in the amount of one million

dollars ($ 1,000,000.00) for each of them, including

wages and benefits lost as a result of their respective

wrongful termination;

B. punitive damages in the amount of one million dollars

($1,000,000.00) for each of them and against Defendant

Mary E. Gorecki:

the costs of this suit;

D. reasonable attorney's fees as permitted by 42 U.S.C. §

1988; and

E. such other relief as may be proper and just.

Count IJ

Defamation

1-69. Plaintiffs re-allege Paragraphs } through 69 of this

Second Amended Complaint as Paragraphs 1 through

69 of Count H as though fully set forth herein.

70. That at the time of the commission by Defendant Mary

E. Gorecki of the grievances hereinabove mentioned,

and for a long time Prior thereto, Plaintiffs were

employed as investigators in the Kane County State's

Attorneys Office.

71. That it was the job responsibility of Plaintiffs to

investigate and report violations of the criminal law

where ever they discovered them.

72. That Plaintiffs have always conducted themselves in

76.

=~)

App. 28

said employment with efficiency, honesty and

punctuality.

That Plaintiffs were always deservedly held in high

esteem by members of the Kane County State's

Attorney's Office, by the citizens of Kane County, and

by all those persons with whom they had dealings as

investigators for the State's Attorneys Office.

. That the Plaintiffs held their positions with the Kane

County State's Attorneys Office for the maintenance

and support of themselves and their families.

. That on or about December 5, 2000, at Geneva, Kane

County, Illinois well knowing the premises but

maliciously and wickedly contriving and intending to

injure and destroy Plaintiffs’ good names, credit and

reputations in their employment and bring them into

disgrace among the members of the State's Attorney's

Office, the members of the law enforcement community,

and the citizens of Kane County with whom Plaintiffs

had dealings, and to cause Plaintiffs to be regarded as

persons unfit and unworthy to perform the duties of

their employment, to prejudice and injure Plaintiffs in

their employment, and to cause them the loss of their

employment, Defendant Mary E. Gorecki falsely,

maliciously and wrongfully made false, defamatory, and

slanderous statements about them and their abilities

and credentials to act as investigators for the Kane

County State's attorney's Office.

That prior to and after Defendant Mary E. Gorecki

became Kane County State's Attorney, she stated

publicly and to the pres that Plaintiffs were

unqualified and unfit to perform their jobs.

That prior to and after Defsndant Mary E. Gorecki

became Kane County State's Attorney, she stated

publicly and to the press tkat Plaintiff Carlson had

committed a crime by participating in an illegal

+ on

78.

79.

80.

81.

82.

App. 29

"kick-back" scheme in order to secure jobs for various

persons.

That prior to and after Defendant Mary E. Gorecki

became Kane County State's Attorney, stated publicly

and to the press that Plaintiff Smith obtained his job

only through nefarious and corrupt political deals.

That Defendant Mary E. Gorecki Stated publicly and to

the press, "I have terminated two investigators from the

employ of the Kane County State's Attorneys Office.

Investigators Phil Carlson and T.R. Smith did not

complete the Police Training Institute Program, a 400

hour training regimen".

That Defendant Mary E. Gorecki stated publicly and to

the press that Plaintiff Carlson had committed a crime

by stealing government property and stealing tires from

Sam's Club.

That Defendant Mary E. Gorecki's defamatory remarks

made after she became State's Attorney were not in any

way justified or within the realm of any legitimate duty

and were only uttered to retaliate against Plaintiffs and

to mislead and misdirect authorities away from her own

culpability.

That said false, defamatory, and slanderous statements

were reported widely in the local press and were read

by citizens of the Kane County community, by reason of

which Plaintiffs were and are greatly injured in their

good names, credit, and reputations and have suffered

the loss of their employment.

WHEREFORE, Plaintiffs, PHILLIP D. CARLSON and

THOMAS R. SMITH respectfully pray for Judgment for

each of them and against Defendant Mary E. Gorecki and

each of them as follows:

compensatory damages in the amount of one million

dollars ($1,000,000.00) for each of them, including

App. 30

wages and benefits lost as a result of their respective

wrongful termination;

B. punitive damages in the amount of one million dollars

($1,000,000.00) for each of them and against Defendant

Mary E. Gorecki; C. the costs of this suit; and

D. such other relief as may be proper and just.

Respectfully submitted,

/s/ John P. DeRose

John P. DeRose and Associates

15 Spinning Wheel Road Suite 328

Hinsdale, Illinois 60521 (630) 920-1111

App. 31

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Phillip D. Carlson

and Thomas Smith

Plaintiffs, No. 01 C 9235

Charles R. Norgle, Sr.,

Judge Presiding.

Mary E. Gorecki,

Defendants.

NOW COMES the Defendant, MARY E. GORECKI., by and

througkher attorneys, JAMES G. SOTOS and MICHAEL D.

BERSANI of HERVAS, SOTOS, CONDON & BERSANI.

P.C., and pursuant to Fed. R. Civ. P. 56(b), moves this Court

fojudgment with respect to Plaintiffs’ Second Amended

Complaint.

In support of this motion, Defendant states the following:

1. Plaintiffs Phillip D. Carlson and Thomas R. Smith have

filed a two-count First Amended Complaint for money

damages pursuant to 42 U.S.C. § 1983 and Illinois common

law against Defendant Mary E. Gorecki in her individual

capacity as Kane County State's Attorney.

2. In Count I, Plaintiffs have alleged a Section 1983 First

Amendment political retaliation claim stemming from

Defendant's decision not to reappoint Plaintiffs as Special

Investigators in the Kane County State's Attorney's Office.

3. In Count II, Plaintiffs allege a state law defamation

App. 32

claim in connection with statements that Defendant

allegedly made in conjunction with Plaintiffs' employment

and

Defendant's decision not to reappoint Plaintiffs.

4. Summary judgment should be granted as to Count I

because Plaintiffs occupied policymaking or confidential

positions for which political loyalty was an appropriate job

requirement. Therefore, Defendant did not violate Plaintiffs’

First Amendment rights. Alternatively, it was not clearly

established that Plaintiffs occupied positions for which

political loyalty was an appropriate job requirement and,

therefore, Defendant is entitled to qualified immunity.

5. Ifthis Court grants summary judgment as to Plaintiffs’

federal] claim, it should relinquish supplemental jurisdiction

over Plaintiffs' state law defamation claim.

6. Pursuant to Local Rule 56.1(a), Defendant has served

and filed a memorandum of law, statement of undisputed

material facts and supporting evidentiary material.

WHEREFORE, Defendant, MARY E. GORECKI,

respectfully requests that this Court enter summary

judgment as to Plaintiffs’ First Amended Complaint

pursuant to Fed. R. Civ. P. 56.

/s/ MICHAEL D. BERSANI,

One of the Attorneys for the Defendant

JAMES G. SOTOS

MICHAEL D. BERSANI

HERVAS, SOTOS, CONDON & BERSANT, P.C.

333 Pierce Road, Suite 195 P.O. Box 4109

Itasca, IL 60143-4109

(630) 773-4774

App. 33

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Phillip D. Carlson

and Thomas Smith

Plaintiffs-Appellees, No. 01 C 9235

)

) .

v. ) Charles R. Norgle, Sr.,

) Judge Presiding.

)

Mary E. Gorecki,

Defendant-Appellant.

MEMORANDUM OF LAW IN SUPPORT OF

D . R

SUMMARY JUDGMENT

PREFATORY REMARKS

Plaintiffs Phillip D. Carlson and Thomas R. Smith have

filed a two-count Second Amended Complaint for money

damages pursuant to 42 U.S.C. § 1983 and Iinois common

law against Defendant Mary E. Gorecki in her individual

capacity as Kane County State’s Attorney. Plaintiffs have

alleged a Section 1983 First Amendment political retaliation

claim in Count I and a state law defamation claim in Count

II.

App. 34

Am. Compl., 13 1). Plaintiffs also contend that they publicly

criticized Defendant's honesty, integrity and competency to

serve as State's Attorney (Sec. Am. Compl., 30, 36-37, 39,

46-48, 50-51).

Defendant has moved for summary judgment as to the

Section 1983 political retaliation claim because Defendant

is entitled to qualified immunity. In moving for summary

judgment, Defendant admits for purposes of her qualified

immunity defense only that she failed to reappoint Plaintiffs

based on their political affiliation and activities. In addition,

should this Court dismiss the federal claim it should

relinquish supplemental jurisdiction over Plaintiffs’ state

law defamation claim. This memorandum of law is

submitted in support of Defendant's motion for summary

judgment.

ARGUMENT

I. SUMMARY JUDGMENT SHOULD BE GRANTED

AS TO COUNT I ALLEGING POLITICAL

RETALIATION UNDER THE DOCTRINE OF

QUALIFIED IMMUNITY

A. Principles of Oualified I it

A public official is immune from personal damages

lability so long as her actions do not violate clearly

-established constitutional rights of others. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). "[Q]ualified immunity

is intended to provide government officials with the ability

to ‘reasonably anticipate when their conduct may give rise

to liability for damages."' Anderson v. Creighton, 483 U.S.

635, 646 (1987) (quoting Davis v. Scherer, 468 U.S. 183, 195

(1984)). Qualified immunity provides "ample room for

mistaken judgments’ by protecting ‘all but the plainly

incompetent or those who knowingly violate the law."

App. 35

Hunter v. Brvant, 502 U.S. 224, 229 (1991) (quoting Malley

v. Briaas, 475 U.S. 335, 341 (1986)).

The doctrine of qualified immunity is not only an

immunity from damages liability; it is an immunity from the

costs associated with defending a damages suit. Saucier v.

Katz, 121 S.Ct. 2151, 2156 (2001); Crawford-E] v. Britton,

523 U.S. 574, 589 (1998). In order to fulfill the policy

objective of protecting public officials from the burdens of

civil litigation as well as civil damages, qualified immunity

should be resolved at the earliest possible stage of litigation.

Saucier, Id. Once a case erroneously proceeds into discovery,

the immunity may already be diminished; thus the federal

courts must be vigilant to ensure that a plaintiff has set

forth some plausible basis for recovery before allowing a civil

rights lawsuit against a governmental official to proceed into

discovery. See Siegert v. Gilley, 500 U.S. 226, 232-33 (1991).

To defeat a claim of qualified immunity, a plaintiff bears

the burden of satisfying a twostep inquiry: (1) did the

official's conduct violate the plaintiff's constitutional rights;

and, if so, (2) was that constitutional right clearly

established at the time of the alleged misconduct? Siegert,

50U U.S. at 231-32 (1991). A plaintiff must show that the

constitutional principles at stake were clearly established in

relation to the specific facts confronting the public official

when she acted. Rakovich v. Wade, 850 F.2d 1180, 1209 (7th

Cir. 1988) (en banc), cert. denied, 488 U.S. 968 (1988); see

also Auriemma v. Rice, 895 F.2d 388, 343 (7th Cir. 1990)

(generalized discussion of equal protection clause

insufficient to overcome government official's qualified

immunity). In order to satisfy this burden, a plaintiff must

identify a closely analogous case which has already

established "both the right at issue and its application to the

factual situation at hand.” Erwin v. Daley, 92 F.3d 521, 525

(7th Cir. 1996).

The availability of qualified immunity in political

retaliation cases is broad. A public official is entitled to

——————— ee

App. 36

qualified immunity if, at the time she acted, the law did not

clearly establish that she was prevented from firing an

employee who held the particular position at issue. See

Wrigley v. Greanias, 842 F.2d 955, 958 (7th Cir. 1988).

B. Defendant Did Not Violate Plaintiffs’ First |

Amendment Rights Because Plaintiffs Occupied

Policymaking Or Confidential Positions And

Therefore Could Be Lawfully Terminated For '

Political Reasons |

In general, a government employee cannot be fired based

on his political beliefs. See Branti v. Finkel, 445 U.S. 507,

517 (1980); Elrod v. Burns, 427 U.S. 347,373 (1976). |

However, a recognized exception exists for anemployee who |

occupies a confidential or policymaking position for which

political affiliation is "an appropriate requirement for the

effective performance of the public office involved." Branti,

445 U.S. at 518. The purpose behind this exception is to

ensure that newly elected officials be able to implement the

policies for which they were elected without interference by

disloyal employees. Pleva v. Norcluist, 195 F.3d 905, 911

(7th Cir. 1999).

The exception to the ban on patronage dismissals extends

beyond mere political affiliation. Public employees who

occupy an office having a confidential character or

policymaking function, or- some other characteristic for

which political affiliation is an appropriate job requirement,

may be fired for speaking out against their employers or

criticizing their employers' policies. See Warzon v. Drew, 60

F.3d 1234, 1238 (7th Cir. 1995); Wilbur v. Mahan, 3 F.3d

214, 215 (7th Cir. 1993). "The concern driving the :

policymaking exception ‘is with the effects on the operations

of government of forcing a public official to hire, or retain, in

a confidential or policymaking job, persons who are not [her]

App. 37

political friends and may be [her] political enemies.”

Warzon. 60 F.3d at 1239 (quoting, Wilbur, 3 F.3d at 217-18).

The test for determining whether a person is a policy

maker is whether his position "authorizes, either directly or

indirectly, meaningful input into governmental decision

making on issues where there is room for principled

disagreement on goals or their implementation.” Nekolny v.

Palmer, 653 F.2d 1164, 1170 (7th Cir. 1981), cert. denied,

455 U.S. 1021 (1982). This test. requires a functional

analysis of the powers inherent in the office as opposed to

the functions actually performed by the particular officer or

employee. Hudson v. Burke, 913 F.2d 427,431 (7th Cir. _

1990); Tomcezak v. City of Chicano, 765 F.2d 633, 641 (7th

Cir.), cert. denied, 474 U.S. 946 (1985).

Against that backdrop, the position of Special

Investigator is exempt from the general ban on patronage

dismissal. At the onset, a Special Investigator is appointed

by and serves at the pleasure of the State's Attorney. See 55

Ill. Comp. Stat. 5/3-9005(b) (West 1993). His term of office,

therefore, is limited to the term of the State's Attorney who

appointed him. See Heck v. City of Freenort, 985 F.2d 305,

307-08 (7th Cir. 1993); Wolf v. City of Fitchburg, 870 F.2d

1327, 1331 (7th Cir. 1989). The purpose behind the term

limit "is to enable a newly elected executive to assemble a

team of officials whom [she] trusts to develop and carry out

fher] agenda ...." Heck, 985 F.2d at 307. Thus, "political

affiliation would seem not merely a permissible, but actually

a desirable criterion for those appointments." Id. at 310; see,

also, Kline v. Hughes, 131 F.3d 708, 710 (7th Cir. 1997)

(holding that statutory scheme allowing county auditor to

appoint or terminate deputy coroner, placed deputy coroner

in policymaking position).

In addition to the inherently political nature of the

position, the Special Investigator's investigative duties

provide for meaningful input into the State's Attorney's

}

ae pr eer App. 38 |

policy making decisions. A State's Attorney's powers and

duties are broad and encompass civil, criminal and

administrative matters relating to all facets of county

government. 55 Il]. Comp. Stat. 5/39005(b) (West 1993). Id.

The fact that the State's Attorney is statutorily authorized

to assign an investigation on any matter pertaining to the

performance of the State's Attorney's broad powers and

duties demonstrates that the office of Special Investigator

has the potential to influence the State's Attorney's

decisions. See Kline, 131 F.3d at 710, fn. 4. See, g.g.,

Hudson,, 913 F.2d at 432-33 (investigators for city finance |

committee provided sufficient subjective input into policy

decisions); Danahy v. Buscaglia, 134 F.3d 1185, 1192 (2d

Cir. 1998) (attorney general investigators received and

provided confidential information used to make

prosecutorial decisions so that defendant reasonably

perceived the positions were policymaking or confidential).

In this vein, the Special Investigator's ability to influence

the State's Attorney is analogous to the appointed position

of Assistant State's Attorney, for which political loyalty is a |

constitutionally permissible job requirement. See Livas v. |

Petka, 711 F.2d 798 (7th Cir. 1983). Like Special |

Investigators, Assistant State's Attorneys are appointed by |

the State's Attorney, and their actions must "conform with

the broad objectives chosen by the [State's Attorney]." 711

F.2d at 801. The State's Attorney is entitled to demand

absolute loyalty under these circumstances. Id..

Even if the Special Investigator is not a policymaker, at

the very least, he occupies a position of confidentiality. A

confidential position is one which "encompasses those

government employees who, while not decision makers, are

in close contact with policymakers and the -highly

confidential communications or records affecting decisions."

Meeks v. Grimes, 779 F.2d 417, 420 (7th Cir. 1985). The

concern is not only confidentiality in terms of preventing

leaks of confidential and sensitive information or keeping

App. 39

secrets, but also confidentiality in the sense of political

loyalty. Id.; Matlock v. Barnes, 932 F.2d 658, 665 (7th Cir.),

cert. denied, 502 U.S. 909 (1991). Political animosity can

create a hostile work environment with regard to those

employees who have direct and constant contact with a

political official. Meeks, 779 F.2d at 422-23. "[I]t would

strain credulity to read the First Amendment or Elrod to

require an elected official to work in constant direct contact

with a person viewed as a political enemy." Id. at 423.

The position of Special Investigator necessarily requires

direct and confidential contact with the State's Attorney.

For example, a State's Attorney may use a Special

Investigator to investigate criminal misconduct, even before

formal charges are brought. See People v. Nohren, 283 III.

App. 3d 753, 670 N.E.2d 1208, 1211, 1212 (4th Dist. 1996),

appeal denied, 171 111.2d 578 (1997). She may also use a

Special Investigator to assist in a confidential grand jury

investigation or to investigate improprieties or corruption in

county government. These functions necessarily require a

close, confidential relationship between the Special

Investigator and the State's Attorney.

In the instant case, the State's Attorney would have been

justified in demanding loyalty from her Special

Investigators. Plaintiffs allege that they were political

enemies of State's Attorney Gorecki. They were appointed

by her predecessor whom they allegedly actively supported

in the primary election. Plaintiffs also contend that they

openly campaigned against Gorecki and publicly accused her

of dishonest, unethical and illegal misconduct, and further

claimed that she lacked competency, experience and

leadership. Given that Plaintiffs occupied confidential

positions, if would have been entirely lawfu! for Gorecki not

to reappoint Plaintiffs for political reasons.'Accordingly,

' The significance of Plaintiff Carlson's allegation that Gorecki

(continued...)

App. 40

State's Attorney Gorecki did not violate Plaintiffs’ First

Amendment rights.

Cc. Defendant Enjoys Qualified Immunity Because

It Was Not Clearly Established That Political

Loyalty Was Not An Appropriate Requirement

For The Position of State's Attorney Special

Investigator

In order for the asserted Constitutional right to be clearly

established, the plaintiff must point to a closely analogous

case establishing that the conduct was unlawful, or show

that the violation was so obvious that a reasonable public

official would have known that she was violating a

constitutional right. See Morrell v. Mock, 270 F.3d 1090,

1100 (7th Cir. 2001). There is no U.S. Supreme Court or

Seventh Circuit case which clearly established in December

of 2000 that a State's Attorney Special Investigator, who

actively opposed the candidacy of, and spoke out critically

against the newly elected State's Attorney, could not be fired

for political reasons. Furthermore, it was not so obvious |

from the existing caselaw that Gorecki would have known |

that refusing to reappoint Plaintiffs as Special Investigators

violated their rights

1 (...continued)

retaliated against him for accusing her of circulating false

election material is unclear. (See Sec. Am. Compl., 11-15).

Carlson's accusation occurred in June of 1999 when Gorecki was

a private citizen. Furthermore, it is not clear whether the alleged

retaliation took place after Gorecki took office. Also, there is no

factual connection alleged between the accusation and Gorecki's

decision not to reappoint Carlson. In any event, assuming there

is a causal connection, Carlson's accusation falls within the scope

of free speech which a public official may consider in political

termination cases under Warzon. 60 F.3d at 1239 and Wilbur, 3

F.3d at 217-18.

App. 41

A review of the sparse case law in Illinois involving the

position of investigator, as that term is used in different

contexts, results in divergent views. Compare Hudson v.

Burke, 913 F.2d 427 (7th Cir. 1990) (holding that

investigators for city finance committee could be fired for

their political affiliation because their positions were

inherently political and they provided meaningful input into

decisions of finance committee), with Matlock v. Barnes, 932

F.2d 658 (7th Cir. 1991) (holding that legal investigator for

city law department could not be fired because position was

not politically appointed and was limited to taking witness

statements and photographs, and obtaining records relating

to accident and small property damage claims), and

Nitschneider v. Miller, 821 F. Supp. 1258, 1263 (N.D. IIL.

1993) (commenting that it was difficult to assess on the

spectrum of autonomy and discretion whether political

termination of a city police investigator violated a clearly

established constitutional right).

The closest case on point comes from the Fifth Circuit. In

Gunaca v. State of Texas, 65 F.3d 467 (5th Cir. 1995), a

newly elected county district attorney refused to reappoint

an investigator who had supported the former district

attorney. The Court held that the defendant was entitled to

qualified immunity, because it was not clearly established

based on Supreme Court or Fifth Circuit precedent that

firing the investigator violated the First Amendment. 65

F.3d at 475. The Court held that no case "had addressed an

issue sufficiently analogous that a reasonable official would

understand from its resolution that it was a First

Amendment violation to dismiss or to not hire an

investigator on the grounds that the investigator supported

the campaign of the official's opponent." Id. The Court

concluded that "[bJecause reasonable public officials could

have differed on the lawfulness of [the district attorney's]

actions at the time they occurred, [he] was entitled to

qualified immunity." Id.

App. 42

The Second Circuit has also addressed the position of

investigator serving an employer with a prosecutorial

function. In Danahy v. Buscaglie, 134 F.3d 1185 (2d

Cir.1998), investigators with the state attorney general's

office were fired for their political affihation with the prior

attorney general. They were part of a statewide highly

specialized prosecutor's office

and were hired by and served at the pleasure of the attorney

general. They worked closely with the prosecutors and dealt

with highly confidentia) matters. After measuring these

facts against existing federal cases, the court held that the

defendants could have reasonably perceived that the

plaintiff investigators were policymaking or confidential

employees. 134 F.3d at 1193. Therefore, the defendants were

entitled to qualified immunity. Id.

In contrast, the Tenth Circuit in Laidley v. McClain, 914

F.2d 1386, 1395 (10th Cir. 1990), held that a newly elected

district attorney was not entitled to qualified immunity for

firing an investigator who had supported his opponent in the

election. The plaintiff was an investigator in the child

support division of the district attorney's office. Her duties

included locating absent parents, serving process, sending

letters, conducting interviews, contacting clients, and

answering the telephone. Describing the investigator as "a

low-level staff employee," the court held that the plaintiffs

right to her job under Elrod and Branti was clearly

established. Id.

In light of the divergent case law, a reasonable official in

Defendant Gorecki's position would not be expected to know

and understand that it was unlawful to fire a Special

Investigator who had been appointed by her predecessor and

had actively campaigned and spoke out critically against

her. Thus, Gorecki is entitled to qualified immunity.

App. 43

D. THIS COURT SHOULD DECLINE TO

EXERCISE JURISDICTION OVER THE STATE

LAW DEFAMATION CLAIM

Absent unique circumstances, district courts normally

relinquish jurisdiction over pendent state claims when all

federal claims have been dismissed before trial. Groce v. Eli

Lilly & Co., 193 F.3d 496, 501 (7th Cir. 2000): Wright v.

Associated Ins. Cos., Inc., 29 F.3d 1244, 1251 (7th Cir. 1994).

Should this Court grant summary judgment on Count I,

jurisdiction over Count II would be based entirely upon the

supplemental jurisdiction statute, 28 U.S.C. § 1367. Section

1367(c)(3) allows this Court to decline supplemental

jurisdiction after dismissal of all federal claims. Since there

is no compelling reason for this Court to retain jurisdiction,

the Defendant asks that this Court relinquish jurisdiction

over Plaintiffs’ state law claim. .

CONCLUSION

Based on the foregoing, the Defendant, Mary E. Gorecki,

respectfully requests that this Honorable Court enter

summary judgment in her favor.

/s/ MICHAEL D. BERSANI,

One of the Attorneys for the Defendant

JAMES G. SOTOS

MICHAEL D. BERSANI

HERVAS, SOTOS, CONDON & BERSANI, P.C. 333 Pierce

Road, Suite 195 P.O. Box 4109

Itasca, IL 60143-4109

(630) 773-4774

App. 44

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Phillip D. Carlson

and Thomas Smith

Plaintiffs, No. 01 C 9235

v. Charles R. Norgle, Sr.,

Judge Presiding.

Mary E. Gorecki,

Defendant.

LOCAL RULE 56.1 STATEMENT OF

UNCONTESTED MATERIAL FACTS IN SUPPORT

OF DEFENDANT MARY E. GORECKT”S

MOTION FOR SUMMARY JUDGMENT

1. Defendant is the duly elected State’s Attorney of Kane

County Illinois (Answ. to Second Am. Compl., 4 4, attached

hereto as Exhibit A).

2. Defendant won the Republican nomination for Kane

County State's Attorney on March 21, 2000 against the

incumbent State's Attorney David Akemann (Ex. A, § 20).

3. Defendant defeated a Democratic opponent, Robert J.

Steffen, in the general election on November 7, 2000 (Ex. A,

4 32).

4. Defendant took office on December 1, 2000 (Ex. A, § 33).

5. Plaintiff Carlson was appointed Special Investigator by

former Kane County State's Attorney David Akemann in

App. 45

1996 (Ex. A, § 5; Carlson Certif. of Appt., attached as

Exhibit B).

6. Plaintiff Smith was appointed Special Investigator by

Akemann in September 1999 (Ex. A, § 6; Smith Certif, of

Appt., attached as Exhitit C).

7. A State's Attorney is statutorily authorized to appoint

one or more Special Investigators to serve subpoenas, make

return of process and conduct investigations which assist

the State's Attorney in the performance of her duties. (55 III.

Comp. Stat. 5/3-9005(b) (West 1993), attached as Exhibit D;

Plaintiffs' Job Descriptions, attached as Exhibit E).

8. Subject to certain qualifications, Special Investigators are

peace officers and have all the powers possessed by

investigators under the State's Attorneys Appellate

Prosecutor's Act (Ex. D, § 5/3-9005(b)).

9. Under the State's Attorneys Appellate Prosecutor's Act,

investigators provide investigative services in criminal cases

and tax objection cases for staff counsel and county state's

attorneys. (725 111. Comp. Stat. 210/7.06 (West 1993),

attached hereto as Exhibit F).

10. Upon taking office on December 1, 2000, Defendant

eliminated the positions of Special Investigators and did not —

reappoint Plaintiffs as Special Investigators (Ex. A, 36).

/s/ MICHAEL D. BERSANI,

One of the attorneys for the Defendant

JAMES G. SOTOS

MICHAEL D. BERSANI

HERVAS, SOTOS, CONDON & BERSANTI, P.C.

333 Pierce Road, Suite 195 P.O. Box 4109

Itasca, IL 60143-4109, (630) 773-4774

App. 46

IN THE UNITED STATES DISTRICT COURT

_ FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Phillip D. Carlson

and Thomas Smith

)

Plaintiffs-Appellees, ) No. 01 C 9235

)

V. ) Charles R. Norgle, Sr.,

7 ) Judge Presiding.

Mary E. Gorecki, )

Defendant-Appellant. )

)

ANSWER TO SECOND AMENDED COMPLAINT

NOW COMES the Defendant, MARY E. GORECKI, by

and through her attorneys, JAMES G. SOTOS and

MICHAEL D. BERSANI of HERVAS, SOTOS, CONDON &

BERSANI, P.C., and for her answer to Plaintiffs’ Second

Amended Complaint, states as follows:

1. That this action is brought pursuant to 29 U.S.C. § 623,

the Civil Rights Act of 1871, 42 U.S.C. § 1983, the Civil

Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. §

1988, the Constitution of the United States of America, and

the State of Illinois Constitution. The jurisdiction of this

Honorable Court is invoked pursuant to 28 U.S.C. § 1331

and 1343 and its jurisdiction over pendent state law claims.

ANSWER: The Defendant admits the allegations contained

in paragraph one of the Second Amended Complaint.

App. 47

PARTIES

2 That Plaintiff, PHILLIP D. CARLSON, (hereinafter

sometimes referred to as "Plaintiff Carlson"), is a resident of

the State of Illinois and a citizen of the United States of

America.

ANSWER: The Defendant admits the allegations contained

in paragraph two of the Second Amended Complaint.

3 That Plaintiff, THOMAS R. SMITH (hereinafter

sometimes referred to as "Plaintiff Smith"), is a resident of

the State of Illinois and a citizen of the United States of

America.

ANSWER: The Defendant states that she has knowledge or

information insufficient to form a belief as to the truth or

falsity of the allegation that Plaintiff Smith is a resident of

the State of Illinois. The Defendant admits that Plaintiff is

a citizen of the United States of America.

4. That Defendant MARY E. GORECKI was at all times

hereinafter mentioned acting under state law as the State's

Attorney of the County of Kane.

ANSWER: The Defendant admits that she was acting under

color of state law as the State's Attorney of the County of

Kane on or after December 1, 2000 when she took office as

Kane County State's Attorney. The Defendant denies acting

under color of state law for acts alleged to have occurred

prior to Defendant taking office on December 1, 2000.

FACTS

5. That Plaintiff Carlson was hired to be an investigator for

the Kane County State's Attorney's Office in April 1996.

App. 48

ANSWER: The Defendant admits that Plaintiff Carlson was

appointed Special Investigator by the Kane County State's

Attorney in April 1996.

6. That Plaintiff Smith was hired to be an investigator for

the Kane County State's Attorney's Office in August 1999.

ANSWER: The Defendant admits that Plaintiff Smith was

appointed Special Investigator by the Kane County State's

Attorney in September 1999.

7. That prior to his hiring, Plaintiff Smith had over (30)

years experience in investigative and law enforcement work

for the Cook County Sheriff's Police's.

ANSWER: The Defendant states that she has knowledge or

information insufficient to form a belief as to the truth or

falsity of the allegations contained in paragraph seven of the

Second Amended Complaint.

8. That prior to his hiring, Plaintiff Carlson had over twelve

(12) years experience in investigative work for the Illinois

Secretary of State's Office.

ANSWER: The Defendant states that she has knowledge or

information insufficient to form a belief as to the truth or

falsity of the allegations contained in paragraph eight of the

Second Amended Complaint.

9. That prior to Defendant Mary E. Gorecki's assumption of

the Kane County State's Attorney's Office, Plaintiffs had

always enjoyed the highest professional reputations as

investigators and law enforcement officers for the State's

Attorney's Office.

ANSWER: The Defendant denies the allegations contained

App. 49

in paragraph nine of the Second Amended Complaint.

10. That during the primary campaign for the Office of

Kane County State's Attorney, evidence came to light of

potential wrongdoing by Defendant Mary E. Gorecki as a

candidate for the position of State's Attorney.

ANSWER: The Defendant denies the allegations contained

in paragraph ten of the Second Amended Complaint.

11. That in or about June 1999 Plaintiff Carlson discovered

that Defendant Mary E. Gorecki had been circulating false

and politically damaging election materials concerning the

Honorable James T. Doyle, a sitting judge and candidate for

retention to the Sixteenth Judicial District.

ANSWER: The Defendant denies the allegations contained

in paragraph eleven of the Second Amended Complaint, and

specifically denies circulating false and politically damaging

election materials concerning Judge Doyle.

12. That speaking out on a matter of public concern that

Kane County be served by an honest and competent

judiciary, Plaintiff Carlson advised Judge Doyle that the

source of the false and politically damaging election

materials was Defendant Mary E. Gorecki.

ANSWER: The Defendant states that she has knowledge or

information insufficient to form a belief as to the truth or

falsity of the allegations contained in paragraph twelve of

the Second Amended Complaint, except that Defendant

denies that she was the source of false and politically

damaging election material concerning Judge Doyle.

13. That shortly thereafter, Judge Doyle confronted

Defendant Mary E. Gorecki about the false and politically

damaging election materials, and she admitted that she was

involved in the distribution of the materials.

—————— nn

SS r

"i x

. 3

App. 50 |

ANSWER: The Defendant denies the allegatioris contained

in paragraph thirteen of the Second Amended Complaint.

14. That during the confrontation, Defendant Mary E.

Gorecki was advised that Judge Doyle had learned of her

involvement from Plaintiff Carlson.

ANSWER: The Defendant denies the allegations contained

in paragraph fourteen of the Second Amended Complaint.

15. That thereafter, in retaliation for having exposed her

involvement, Defendant Mary E. Gorecki started a

systematic attack on the integrity and honesty of Plaintiff

Carlson. .

ANSWER: The Defendant denies the allegations contained

in paragraph fifteen of the Second Amended Complaint.

16. That prior to and after becoming Kane County State's

Attorney Defendant Mary E. Gorecki falsely accused

Plaintiff Carlson of threatening her mother's job and made

public and false statements that Plaintiff Carlson was

unskilled, unqualified and uncertified as a peace officer.

ANSWER: The Defendant denies the allegations contained

in paragraph sixteen of the Second Amended Complaint.

17. That in February 2000 Defendant Mary E. Gorecki left

a series of tape recorded messages to Deputy Sheriff Jane

Morrison offering to get a job for Ms. Morrison's husband in

the Kane County Highway Department in exchange for

campaign contributions to certain Kane County officials and

a additional ten to fifteen (10% to 15%) of the first year's

salary realized for such a job.

App. 51

ANSWER: The Defendant admits that she left one or more

tape recorded messages to Deputy Jane Morrison. The

Defendant denies the remaining allegations contained in

paragraph seventeen of the Second Amended Complaint.

18. That on March 2, 2000 the tape recordings and

allegations that Gorecki talked to Morrison about a kickback

surfaced just weeks before the Republican primary in which

Defendant Mary E. Gorecki was challenging incumbent

David Akemann for the office of State's Attorney of Kane

County.

ANSWER: The Defendant admits the allegations contained

in paragraph eighteen of the Second Amended Complaint.

19. That Defendant Mary E. Gorecki initially denied that it

was her voice on the tape recordings. ©

ANSWER: The Defendant denies the allegations contained

in paragraph nineteen of the Second Amended Complaint.

20. That on March 21, 2000 Defendant Mary E. Gorecki won

the primary election for the Republican nomination for the

office of Kane County State's Attorney.

ANSWER: The Defendant admits the allegations contained

in paragraph twenty of the Second Amended Complaint.

21.That prior to Defendant Mary E. Gorecki becoming Kane

County State's Attorney, she falsely identified Plaintiff

Carlson of being the individual involved in a kickback

scheme for jobs in Kane County.

ANSWER: The Defendant denies the allegations contained

in paragraph twenty-one of the Second Amended Complaint,

and specifically denies identifying any individual in a

kickback scheme for jobs in Kane County.

;

a :

App. 52

22. That on or about September 1, 2000 Defendant Mary E.

Gorecki publicly admitted to leaving the taped messages.

ANSWER: The Defendant admits that on or about

September 1, 2000 she publicly admitted to leaving one or

more taped messages.

_____ 23. That Defendant Mary E. Gorecki later publicly admitted

that she had talked to Morrison about a county job, claimed

it was a joke, and denied talk of a kick back.

ANSWER: The Defendant admits the allegations contained

in paragraph twenty-three of the Second Amended

Complaint.

24. That State's Attorney Akemann requested that a Special

Prosecutor be appointed to investigate the allegations of

wrongdoing by Defendant Mary E. Gorecki.

ANSWER: The Defendant admits that it was her

nil understanding that State's Attorney Akemann requested

that a Special Prosecutor be appointed to investigate the

allegations of wrongdoing by Defendant Mary E. Gorecki.

25. That on or about September 8, 2000 Kane County Chief

Judge Grant Wegner appointed Daniel D. Doyle, a former

judge from Rockford to investigate the allegations of

wrongdoing by Defendant Mary E. Gorecki.

ANSWER: The Defendant admits that it was her

——- understanding that on or about September 8, 2000 Kane

County Chief Judge Grant Wegner appointed Daniel D.

Doyle, a former judge from Rockford to investigate the

allegations of wrongdoing by Defendant Mary E. Gorecki.

26. That the investigation by the Special Prosecutor found

cause for and did forward the results of his investigation to

the Attorney Registration and Disciplinary Commission.

—————

App. 53

ANSWER: The Defendant denies that the investigation by

the Special Prosecutor found cause. The Defendant states

that she has knowledge or information insufficient to form

a belief as to the truth or falsity of the remaining allegations

contained in paragraph twenty-six of the Second Amended

Complaint.

97. That Defendant Mary E. Gorecki falsely and publicly

stated that she had been exonerated of any wrongdoing

through investigations conducted by the Federal Bureau of

Investigation, the Illinois Attorney General's Office, and

Appellate Court Prosecutor's Office, and Special Prosecutor

Daniel D. Doyle.

ANSWER: The Defendant denies the allegations contained

in paragraph twenty-seven of the Second Amended

Complaint.

28. That these false and public statements were reported

widely throughout Kane County print and electronic media.

ANSWER: The Defendant denies the allegations contained

in paragraph twenty-eight of the Second Amended

Complaint.

29. That, as a matter of fact, the Attorney Registration and

Disciplinary Commission filed a formal complaint against

Defendant Mary E. Gorecki alleging that she had violated

professional rules of conduct when she left the tape recorded

messages.

ANSWER: The Defendant admits the allegations contained

in paragraph twenty-nine of the Second Amended

Complaint.

App. 54

30. Thatinor about October 2000, Plaintiff Smith, a duly

elected Township Precinct Committeeman of the Republican

Party, in an exercise of free speech on a matter of public

concern that Kane County be served by an honest and

competent chief law enforcement officer, authored and

circulated a letter to his constituency indicating his concern

for the credibility and fitness of Defendant Mary E. Gorecki

to hold the office of Kane County State's Attorney.

ANSWER: The Defendant states that she has knowledge or

information insufficient to form a belief as to the truth or

falsity of the allegations contained in paragraph thirty of the

Second Amended Complaint.

31. That during the election campaign, Plaintiffs Carlson

and Smith, in an exercise of free speech on a matter of

public concern, openly expressed their support for the

candidate opposed to Defendant Mary E. Gorecki in the

State's Attorney's race.

ANSWER: The Defendant states that she has knowledge or

information insufficient to form a belief as to the truth or

falsity of the allegations contained in paragraph thirty-one

of the Second Amended Complaint.

32. That on November 7, 2000 Defendant Mary E. Gorecki

defeated Robert Steffen in the Kane County State's

Attorney's race.

ANSWER: The Defendant admits the allegations contained

in paragraph thirty-two of the Second Amended Complaint.

33. That on December 1, 2000, on her first day in office,

Defendant Mary E. Gorecki called a meeting with Plaintiffs.

ANSWER: The Defendant admits the allegations contained

in paragraph thirty-three of the Second Amended

Complaint.

App. 55

34. That during that meeting, Plaintiff Thomas R. Smith

presented Defendant Mary E. Gorecki with a copy of the

letter that he had authored and circulated to his

constituency.

ANSWER: The Defendant admits that at the conclusion of

the meeting Plaintiff Thomas R. Smith presented Defendant

with a copy of a letter. The Defendant states that she has

knowledge or information insufficient to form a belief as to

the truth or falsity of the remaining allegations contained in

paragraph thirty-four of the Second Amended Complaint.

35. Plaintiff Smith advised Defendant Mary E. Gorecki that

he did not want her to learn of the document from any other

source but him and pledged to her that he would continue to

serve the State's Attorney's Office and the citizens of Kane

County with honesty, ir.tegrity, and professionalism as a

member of the State's Attorney's investigator staff.

ANSWER: The Defendant admits the allegations contained

in paragraph thirty-five of the Second Amended Complaint.

36. That at that meeting in which other members of her

campaign staff were in attendance, Defendant Mary E.

Gorecki summarily dismissed and discharged Plaintiffs from

their positions as investigators for the Kane County State's

Attorney's Office.

ANSWER: The Defendant denies the allegations contained

in paragraph thirty-six of the Second Amended Complaint.

The Defendant states affirmatively that she eliminated the

positions of Special Investigators and did not reappoint

Plaintiffs as Special Investigators.

37. That said dismissals and discharge were in retaliation

for Plaintiffs having spoken out on matters of public concern

App. 56

regarding the integrity and competency of Defendant Mary

E. Gorecki to serve as Kane County State's Attorney and the

perception by Defendant Mary E. Gorecki that Plaintiffs

"whistleblew" to law enforcement agencies and the Attorney

Registration and Disciplinary Commission about her alleged

wrongdoing.

ANSWER: The Defendant denies the allegations contained

in paragraph thirty-seven of the Second Amended

Complaint.

38. That Defendant Mary E. Gorecki, in an attempt to

embarrass Plaintiffs, had them unceremoniously escorted

from the building.

ANSWER: The Defendant denies the allegations contained

in paragraph thirty-eight of the Second Amended

Complaint.

39. That following their open expressions of speech on

matters of public concern to the Kane County community as

aforesaid, Plaintiffs were terminated as investigators with

the Kane County State's Attorney's Office on December 1,

2000.

ANSWER: The Defendant denies the allegations contained

in paragraph thirty-nine of the Second Amended Complaint.

COUNT I

1-39. Plaintiffs re-allege Paragraphs 1 through 39 of this

Second Amended Complaint as Paragraphs | through 39 of

Count I as though fully set forth herein.

ANSWER: The Plaintiffs reallege and incorporate by

reference paragraphs 1 through 39 of the Second Amended

wn ll tal A nD

App. 57

Complaint as paragraphs 1 through 39 of this Count I.

Therefore, the Defendant realleges and incorporates her

answers to paragraphs i through 39 of the Second Amended

Complaint as her answers to paragraphs I through 39 of this

Count I.

40. That Kane County has a custom and policy of using

governmental power as an instrument of oppression to

suppress employees from expressing their beliefs and/or

opinions on matters of public concern.

ANSWER: The Defendant makes no response to paragraph

forty as said allegations are directed at Kane County, and

the County is not a Defendant in this lawsuit.

41. That prior to and immediately after assuming the Office

of Kane County State's Attorney, and in an attempt to

retaliate against Plaintiffs for their exercise of free speech

on a matter of public concern, Defendant Mary E. Gorecki

made public statements that Plaintiffs were dismissed

because they were unqualified.

ANSWER: The Defendant denies the allegations contained

in Count I, paragraph forty-one of the Second Amended

Complaint.

42. That prior to and after becoming Kane County State's

Attorney, Defendant Mary E. Gorecki further falsely stated

that Plaintiffs had not completed the Police Training

Institute Program, a 400 hour training regimen required of

sworn police officers, a statement that she knew to be false

or about which she had a reckless disregard for the truth.

ANSWER: The Defendant denies the allegations contained

in Count I, paragraph forty-two of the Second Amended

Complaint.

App. 58

43. That prior to and after becoming Kane County State's

Attorney, Defendant Mary E. Gorecki harassed Plaintiff

Carlson and besmirch his good name and reputation by

falsely accusing him of theft of Kane County property and

equipment.

ANSWER: The Defendant denies the allegations contained

in Count I, paragraph forty-three of the Second Amended

Complaint.

44. That because of the false statements made by Defendant

Mary E. Gorecki in retaliation of their exercise of free

speech on a matter of public concern, Plaintiffs suffered

irreparable harm to their personal and professional

reputations.

ANSWER: The Defendant denies the allegations contained

in Count I, paragraph forty-four of the Second Amended

Complaint.

45. That although the job performance of and by Plaintiffs

sufficiently met the legitimate expectations of Kane County,

their employment was terminated without cause,

justification or prior warning by Gorecki when she became

Kane County State's Attorney.

ANSWER: The Defendant denies the allegations contained

in Count I, paragraph forty-five of the Second Amended

Complaint.

46. That Plaintiffs spoke out on matters of public concern, to

wit:

a) the need for honesty and integrity of candidates for public

office in Kane County; and,

PRO

Ee reels ADA

Ahn cal SRN RIAL AN nd

App. 59

b) the honesty and integrity of Defendant Mary E. Gorecki

to serve as the chief law enforcement officer of Kane County.

ANSWER: That Defendant states that she has knowledge

or information insufficient to form a belief as to the truth or

falsity of the allegations contained in Count I, paragraph

forty-six of the Second Amended Complaint.

47. That Plaintiffs strongly opposed, in public meetings

and/or written communications to their constituency, the

candidacy of Defendant Mary E. Gorecki because of her

public statements of denial and later admission of

involvement in a kick back scheme.-

ANSWER: The Defendant denies involvement in a kick

back scheme. Defendant states that she has knowledge or

information insufficient to form a belief as to the truth or

falsity of the remaining allegations contained in Count I,

paragraph forty-seven of the Second Amended Complaint.

48. That Plaintiffs criticized Defendant Mary E. Gorecki for

reportedly using her "influence" to guarantee employment

with a public entity in exchange for financial kickback.

ANSWER: The Defendant denies using her influence to

guarantee employment with a public entity in exchange for

financial kickback. Defendant states that she has knowledge

or information insufficient to form a belief as to the truth or

falsity of the remaining allegations contained in paragraph

forty-eight of the Second Amended Complaint.

49. That Defendant Mary E. Gorecki made public

statements critical of Plaintiffs and contended that they

were not fit and properly credentialed to be investigators for

the Kane County State's Attorney's Office.

App. 60

ANSWER: The Defendant denies the allegations contained

in Count I, paragraph forty-nine of the Second Amended

Complaint.

50. That Plaintiffs’ interest in acting as responsible citizens,

and in speaking out on the actions described above support

their claims to constitutional protection of their First

Amendment freedom of speech.

ANSWER: The Defendant denies the allegations contained

in Count I, paragraph fifty of the Second Amended

Complaint.

51. That Plaintiffs were engaged in conduct protected by the

First Amendment.

ANSWER: That Defendant states that she has knowledge

or information insufficient to form a belief as to the truth or

falsity of the allegations contained in Count I, paragraph

fifty-one of the Second Amended Complaint.

52. That as a result of the previously mentioned acts,

Defendant Mary E. Gorecki, acting under color of state law

as the agent of County of Kane, has deprived and continues

to deprive Plaintiffs of their rights under the First

Amendment of the United States Constitution and the

Illinois Constitution in violation of 42 U.S.C. § 1983.

ANSWER: The Defendant denies the allegations contained

in Count I, paragraph fifty-two of the Second Amended

Complaint.

53. That the acts of Defendant Mary E. Gorecki were and

are the proximate cause of injury and damage to Plaintiffs.

App. 61

ANSWER: The Defendant denies the allegations contained

in Count I, paragraph fifty-three of the Second Amended

Complaint.

54. That the action taken by Defendant Mary E. Gorecki to

terminate Plaintiffs for their right of free expression

irreparably harmed Plaintiffs.

ANSWER: The Defendant denies the allegations contained

in Count I, paragraph fifty-four of the Second Amended

Complaint.

55. That Defendant Mary E. Gorecki has acted and

continues to act with malice, willfulness, and callous and

reckless indifference to the rights of Plaintiffs.

ANSWER: The Defendant denies the allegations contained

in Count I, paragraph fifty-five of the Second Amended

Complaint.

ANSWER: The Defendant states that she has knowledge or

information insufficient to form a belief as to the truth or

falsity of the allegations contained in Count I, paragraph

sixty-one of the Second Amended Complaint.

62. That Plaintiffs position required little or no contact with

the State's Attorney and job assignments were initiated by

the several Assistant State's Attorney in the office who also

oversaw the day to day activities of the investigators.

ANSWER: The Defendant denies the allegations contained

in Count I, paragraph sixty-two of the Second Amended

Complaint.

63. That Defendant Mary E. Gorecki did, in fact, deprive

Plaintiffs of their rights by terminating their employment in

App. 62

retaliation for Plaintiffs’ speech on matters of public

concern.

ANSWER: The Defendant denies the allegations contained

in Count I, paragraph sixty-three of the Second Amended

Complaint.

64. That actions of Defendant Mary E. Gorecki in

terminating Plaintiffs are likely to chill the exercise of

constitutionally protected speech of others in a comparable

position.

ANSWER: The Defendant denies the allegations contained

in Count I, paragraph sixty-four of the Second Amended

Complaint.

65. That Plaintiffs' employment was terminated without

cause or justification or prior warning.

ANSWER: The Defendant denies the allegations contained

in Count 1, paragraph sixty-five of the Second Amended

Complaint.

66. That Defendant Mary E. Gorecki was aware of Plaintiffs'

activities in furtherance of public policy.

ANSWER: The Defendant states that she has knowledge or

information insufficient to form a belief as to the truth or

falsity of the allegations contained in Count I, paragraph

sixty-six of the Second Amended Complaint.

67.That no reasonable cause or justification existed to

discharge Plaintiffs from their employment.

ANSWER: The Defendant denies the allegations contained

in Count I, paragraph sixty-seven of the Second Amended

Complaint.

COREE.

App. 63

68. That by wrongfully discharging Plaintiffs without cause

or justification, and for retaliatory reasons set forth above,

Defendant Mary E. Gorecki acted willfully and with malice

toward Plaintiffs.

ANSWER: The Defendant denies the allegations contained

in Count I, paragraph sixty-eight of the Second Amended

Complaint.

69. That as a direct and proximate result of the wrongful

and unlawful termination, Plaintiffs have suffered the loss

of their employment, the loss of their salary and benefits,

and damage to their reputation and future earning

potential.

ANSWER: The Defendant denies the allegations contained

in Count I, paragraph sixty-nine of the Second Amended

Complaint.

WHEREFORE, the Defendant denies that the Plaintiffs

are entitled to any judgment whatsoever against her, and

prays this Honorable Court will enter judgment in her favor

and allow for the costs of defending this lawsuit.

COUNT II

1-69. Plaintiffs re-allege Paragraphs 1 through 69 of this

Second Amended Complaint as Paragraphs 1 through 69 of

Count II as though fully set forth herein.

ANSWER: The Plaintiffs reallege and incorporate by

reference paragraphs 1 through 69 of the Second Amended

Complaint as paragraphs I through 69 of this Count II.

Therefore, the Defendant realleges and incorporates her

answers to paragraphs 1 through 69 of the Second Amended

Complaint as her answers to paragraphs I through 69 of this

Count II.

App. 64

70. That at the time of the commission by Defendant Mary

E. Gorecki of the grievances hereinabove mentioned, and for

a long time prior thereto, Plaintiffs were employed as

investigators in the Kane County State's Attorneys Office.

ANSWER: The Defendant admits that Plaintiffs were

employed as Special Investigators by the Kane County

State's Attorney. The Defendant denies the remaining

allegations contained in Count 11, paragraph seventy of the

Second Amended Complaint.

71. That it was the job responsibility of Plaintiffs to

investigate and report violations of the criminal law where

ever they discovered them.

ANSWER: The Defendant admits that it was the job

responsibility of a Special Investigator to investigate and

report violations of criminal law, as directed by the Kane

County State's Attorney.

72.That Plaintiffs have always conducted themselves in said

employment with efficiency, honesty and punctuality.

ANSWER: The Defendant denies the allegations contained

in Count I, paragraph seventy-two of the Second Amended

Complaint.

73. That Plaintiffs were always deservedly held in high

esteem by members of the Kane County State's Attorney's

Office, by the citizens of Kane County, and by all those

persons with whom they had dealings as investigators for

the State's Attorneys Office.

ANSWER: The Defendant denies the allegations contained

in Count IJ, paragraph seventythree of the Second Amended

App. 65

Complaint.

74. That the Plaintiffs held their positions with the Kane

County State's Attorneys Office for the maintenance and

support of themselves and their families.

ANSWER: The Defendant states that she has knowledge or

information insufficient to form a belief as to the truth or

falsity of the allegations contained in Count II, paragraph

seventy-four of the Second Amended Complaint.

75. That on or about December 5, 2000, at Geneva, Kane

County, Illinois well knowing the premises but maliciously

and wickedly contriving and intending to injure and destroy

Plaintiffs' good names, credit and reputations in their

employment and bring them into disgrace among the

members of the State's Attorney's Office, the members of the

law enforcement community, and the citizens of Kane

County with whom Plaintiffs had dealings, and to cause

Plaintiffs to be regarded as persons unfit and unworthy to

perform the duties of their employment, to prejudice and

injure Plaintiffs in their employment, and to cause them the

loss of their employment, Defendant Mary E. Gorecki

falsely, maliciously and wrongfully made false, defamatory,

and slanderous statements about them and their abilities

and credentials to act as investigators for the Kane County

State's attorney's Office.

ANSWER: The Defendant denies the allegations contained |

in Count II, paragraph seventy five of the Second Amended

Complaint.

76. That prior to and after Defendant Mary E. Gorecki

became Kane County State's Attorney, she stated publicly

and to the press that Plaintiffs were unqualified and unfit

to perform their jobs.

————————ttsst—CitsSS

App. 66

ANSWER: The Defendant denies the allegations contained

in Count II, paragraph seventy-six of the Second Amended

Complaint.

77. That prior to and after Defendant Mary E. Gorecki

became Kane County State's Attorney, she stated publicly

and to the press that Plaintiff Carlson had committed a

crime by participating in an illegal "kick-back" scheme in

order to secure jobs for various persons.

ANSWER: The Defendant denies the allegations contained

in Count II, paragraph seventyseven of the Second Amended

Complaint.

78. That prior to and after Defendant Mary E. Gorecki

became Kane County State's Attorney, stated publicly and

to the press that Plaintiff Smith obtained his job only |

through nefarious and corrupt political deals.

ANSWER: The Defendant denies the allegations contained

in Count II, paragraph seventyeight of the Second Amended

Complaint.

79. That Defendant Mary E. Gorecki stated publicly and to

the press, "I have terminated two investigators from the

employ of the Kane County State's Attorneys Office.

Investigators Phil Carlson and T.R. Smith did not complete

the Police Training Institute Program, a 400 hour training

regimen."

ANSWER: The Defendant denies the allegations contained

in Count II, paragraph seventynine of the Second Amended

Complaint.

80. That Defendant Mary E. Gorecki stated publicly and to

the press that Plaintiff Carlson had committed a crime by

App. 67

stealing government property and stealing tires from Sam's

Club.

ANSWER: The Defendant denies the allegations contained

in Count II, paragraph eighty of the Second Amended

Complaint.

81. That Defendant Mary E. Gorecki's defamatory remarks

made after she became State's Attorney were not in any way

justified or within the realm of any legitimate duty and were

only uttered to retaliate against Plaintiffs and to mislead

and misdirect authorities away from her own culpability.

ANSWER: The Defendant denies that she made any

defamatory remarks and further denies the remaining

allegations contained in Count II, paragraph eighty-one of

the Second Amended Complaint.

82. That said false, defamatory, and slanderous statements

were reported widely in the local press and were read by

citizens of the Kane County community, by reason of which

Plaintiffs were and are greatly injured in their good names,

credit, and reputations and have suffered the loss of their

employment.

ANSWER: The Defendant denies the allegations contained

in Count II, paragraph eighty-two of the Second Amended

Complaint.

WHEREFORE, the Defendant denies that the Plaintiffs

are entitled to any judgment whatsoever against her, and

prays this Honorable Court will enter judgment in her favor

and allow for the costs of defending this lawsuit.

/s/ MICHAEL D. BERSANI,

One of the attorneys for the Defendant

App. 68

FIRST AFFIRMATIVE DEFENSE

NOW COMES the Defendant, MARY E. GORECKI, by

and through her attorneys, JAMES G. SOTOS and

MICHAEL D. BERSANI of HERVAS, SOTOS, CONDON &

BERSANI, P.C., and for her First Affirmative Defense to

Plaintiffs' complaint, Defendant states as follows:

The Defendant did not violate any clearly established

constitutional right of which a reasonable person would

have known, thus entitling her to qualified immunity.

WHEREFORE, the Defendant denies that the Plaintiffs

are entitled to any judgment whatsoever against her and -

prays this Honorable Court will enter judgment in her favor

and allow for the costs of defending this lawsuit.

/s/ MICHAEL D. BERSANI,

One of the attorneys for the Defendant

SE RMA N

NOW COMES the Defendant, MARY E. GORECKI, by

and through her attorneys, JAMES G. SOTOS and

MICHAEL D. BERSANI of HERVAS, SOTOS, CONDON &

BERSANI, P.C., and for her Second Affirmative Defense to

Plaintiffs' complaint, Defendant states as follows:

As an executive official the Defendant is protected from

defamation actions by an absolute privilege when making

public statements legitimately related to her official duties.

WHEREFORE, the Defendant denies that the Plaintiffs

are entitled to any judgment whatsoever against her and

prays this Honorable Court will enter judgment in her favor

and allow for the costs of defending this lawsuit.

App. 69

/s/ MICHAEL D. BERSANI,

One of the attorneys for the Defendant

JAMES G. SOTOS

MICHAEL D. BERSANI

HERVAS, SOTOS, CONDON & BERSANTI, P.C. 333 Pierce

Road, Suite 195 P.O. Box 4109

Itasca, IL 60143-4109

(630) 773-4774

gies on

App. 70

CERTIFICATE OF APPOINTMENT

Phillip D. Carlson

(name)

725 Oak Street, Geneva, IL 60134

(address) |

to the position of Special Investigator

effective April 24, 1996

Date 4/24/96

/s/

Title : Kane County States Attorney

ee Rem =

STATE OF ILLINOIS

KANE COUNTY |

OFFICIAL OATH |

I, Phillip D. Carlson, do solemnly swear or affirm that I will

support the Constitution of the United States and the ‘

Constitution of the State of Illinois, and that I will faithfully

discharge the duties of the office of Special Investigator

/s/

Date 4/24/96

App. 71

CERTIFICATE OF APPOINTMENT

1, David R. Akemann, do hereby appoint

T,R. Smith

(name)

8N389 Barron, Maple Park- IL 60151

(address)

to the position of Special Investigator

effective September 1, 1999

/s/

Title Kane County States Attorney

STATE OF ILLINOIS KANE COUNTY

OFFICIAL OATH

I, T.R. Smith, do solemnly swear or affirm that I will

Support the Constitution of the United States and the

Constitution of the State of Illinois, and that I will faithfully

discharge the duties of the Office of Special Investigator

Date 9/1/99

Signature

Signed‘ d sworn before me:

"OFRCIAI SEAL"

DAWN G. BARSANII

App. 72

This document has been updated. Use KEYCITE.

Formerly cited as IL ST CH 34 13-9005

WEST'S SMITH-HURD ILLINOIS COMPILED STATUTES

ANNOTATED

CHAPTER 55. COUNTIES

ACT 5. COUNTIES CODE

ARTICLE 3. OFFICERS AND EMPLOYEES

DIVISION 3-9. STATE'S ATTORNEY

through P.A. 92-300, apv. 8/9/2001 5/3-9005. Powers and

duties of State's attorney

§ 3-9005. Powers and duties of State's attorney.

(a) The duty of each State's attorney shall be:

(1) To commence and prosecute all actions, suits,

indictments and prosecutions, civil and criminal, in the

circuit court for his county, in which the people of the State

or county may be concerned.

(2) To prosecute all forfeited bonds and recognizances, and

all actions and proceedings for the recovery of debts,

revenues, moneys, fines, penalties and forfeitures accruing

to the State or his county, or to any school district or road

district in his county; also, to prosecute all suits in his

county against railroad or transportation companies, which

may be prosecuted in the name of the People of the State of

Illinois.

(3) To commence and prosecute ali actions and proceedings

brought by any county officer in his official capacity.

(4) To defend all actions and proceedings brought against his

county, or against any county or State officer, in his official

capacity, within his county.

inte Sd tail

sows ntl

all

App. 73

(5) To attend the examination of all persons brought before

any judge on habeas corpus, when the prosecution is in his

county.

(6) To attend before judges and prosecute charges of felony

or misdemeanor, for which the offender is required to be

recognized to appear before the circuit court, when in his

power so to do.

(7) To give his opinion, without fee or reward, to any county

officer in his county, upon any question or law relating to

any criminal or other matter, in which the people or the

county may be concerned.

(8) To assist the attorney general whenever it may be

necessary, and in cases of appeal from his county to the

Supreme Court, to which it is the duty of the attorney

general to attend, he shall furnish the attorney general at

least 10 days before such is due to be filed, a manuscript of

a proposed statement, brief and argument to be printed and

filed on behalf of the people, prepared in accordance with

the rules of the Supreme Court. However, if such brief,

argument or other document is due to be filed by law or

order of court within this 10 day period, then the State's

attorney shall furnish such as soon as may be reasonable.

(9) To pay all moneys received by him in trust, without

delay, to the officer who by law is entitled to the custody

thereof.

(10) To notify, by first class mail, complaining witnesses of

the ultimate disposition of the cases arising from an

indictment or an information.

(11) To perform such other and further duties as may, from

time to time, be enjoined on him by law.

(12) To appear in all proceedings by collectors of taxes

against delinquent taxpayers for judgments to sell real

estate, and see that all the necessary preliminary steps have

been legally taken to make the judgment legal and binding.

Bee

App. 74

(b) The State's Attorney of each county shall have authority

to appoint one or more special investigators to serve

subpoenas, make return of process and conduct

investigations which assist the State's Attorney in the

performance of his duties. A special investigator shall not

carry firearms except with permission of the State's

Attorney and only while carrying appropriate identification

indicating his employment and in the performance of his

assigned duties.

Subject to the qualifications set forth in this subsection,

special investigators shall be peace officers and shall have

all the powers possessed by investigators under the State's

Attorneys Appellate Prosecutor's Act. [FN I]

No special investigator employed by the State's Attorney

shall have peace officer status or exercise police powers

unless he or she successfully completes the basic police

training course mandated and approved by the Illinois Law

Enforcement Training Standards Board or such board

waives the training requirement by reason of the special

investigator's prior law enforcement experience or training

or both. Any State's Attorney appointing a special

investigator shall consult with all affected local police

agencies, to the extent consistent with the public interest, if

the special investigator is assigned to areas within that

agency's jurisdiction.

Before a person is appointed as a special investigator, his

fingerprints shall be taken and transmitted to the

Department of State Police. The Department shall examine

its records and submit to the State's Attorney of the county

in which the investigator seeks appointment any conviction

information concerning the person on file with the

Department. No person shall be appointed as a special

investigator if he has been convicted of a felony or other

offense involving moral turpitude. A special investigator

shall be paid a salary and be reimbursed for actual expenses

incurred in performing his assigned duties. The county

ee a

eee ot ome

App. 75

board shall approve the salary and actual expenses and

appropriate the salary and expenses in the manner

prescribed by law or ordinance.

employers, labor unions, telephone companies, and utility

companies location information concerning putative fathers

and noncustodial parents for the purpose of establishing a

child's paternity or establishing, enforcing, or modifying a

child support obligation. In this subsection, “location

information” means information about (i) the physical

whereabouts of a putative father or noncustodial parent, (ii)

the putative father or noncustodial parent's employer, or (iii)

the salary, wages, and other compensation paid and the

health insurance coverage provided to the putative father or

noncustodial parent by the employer of the putative father

or noncustodial parent or by a labor union of which the

putative father or noncustodial parent is a member.

(d) For each State fiscal year, the State's Attorney of Cook

) County shall appear before the General Assembly and

| request appropriations to be made from the Capital

Litigation Trust Fund to the State Treasurer for the purpose

of providing assistance in the prosecution of capital cases in

Cook County. The State's Attorney may appear before the

General Assembly at other times during the State's fiscal

year to request supplemental appropriations from the Trust

Fund to the State Treasurer.

CREDIT(S)

——eeeeeeeSE.,rti ‘tar

1993 Main Volume

P.A. 86-962, Art. 3, § 3-9005, eff. Jan. 1, 1990. Amended by

P.A. 87- 845, § 1, eff. July 1, 1992.

2001 Electronic Update

Amended by P.A. 87-1256, § 1, eff. July 1, 1993; P.A. 88-586,

§ 45, eff. Aug. 12, 1994; P.A. 89-395, § 10, eff. Jan. 1, 1996;

—————————————— eee

App. 76

P.A. 91-589, § 25, eff. Jan. 1, 2000.

IL ST CH 55 S 5/3-9005

FORMER REVISED STATUTES CITATION

1993 Main Volume

Page 17

Formerly I11.Rev.Stat.1991, ch. 34, 3-9005.

[FN 11 725 ILCS 210/1 et seq.

HISTORICAL AND STATUTORY NOTES

Prior Laws:

R.S.1845, p. 76, §§ 4, 5.

Laws 1871-72, p. 190, § 3.

R.S.1874, p. 172, § 5.

Laws 1953, p. 983, § 1.

Laws 1965, p. 592, § 1.

Laws 1967, p. 3676, § 1. -

P.A. 77-1244, § 1.

P.A. 81-917, § 1.

111.Rev.Stat.1987, ch. 14, 5.

55 I.L.C.S. 5/3-9005

IL ST CH 55 § 5/3-9005

App. 77

SPECIAL INVESTIGATORS

DUTIES:

Serve subpoenas

Make return of process and conduct investigations which

assist the States Attorney in the performance of his

o duties

Carry a firearm only in the following circumstances:

a)permission from the States Attorney, and b)carry

States Attorney. authorized ID indicating appointment as

Special Investigator, and c)only in the course of assigned

duties

Serve as a peace officer and exercise police powers, if and

only if a)complete basic police training course mandated

and approved by ILETSB, or b)said requirements in

(a)above are warranted

Carry tear gas gun projectors, bombs, pistols, revolvers,

stun guns, tasers, or other fire arms with the consent of

the States Attorney

Each Special Investigator file should contain:

Oath

Either handbook receipt or contract

Fingerprint Card

Reply from State Police

| ILETSB records and status

Firearms Course Certificate

States Attorney authorization for firearm, if applicable

ot OTE

App. 78

WEST'S SMITH-HURD ILLINOIS COMPILED

STATUTES ANNOTATED CHAPTER 725.

CRIMINAL PROCEDURE

ACT 210. STATE'S ATTORNEYS APPELLATE

PROSECUTOR'S ACT

through P.A, 92-300, apv. 8/9/2001

210/7.06. Employment of investigators

§ 7.06. (a) The Director may hire no more than 12

investigators to provide investigative services in criminal

cases and tax objection cases for staff counsel and county

state's attorneys. Investigators may be authorized by the

board to carry tear gas gun projectors or bombs, pistols,

revolvers, stun guns, tasers or other firearms.

Subject to the qualifications set forth below, investigators

shall be peace officers and shall have all the powers

possessed by policemen in cities and by sheriffs; provided,

that investigators shall exercise such powers anywhere in

the State only after contact and in cooperation with the

appropriate local law enforcement agencies.

No investigator shall have peace officer status or exercise

police powers uniess he or she successfully completes the

basic police training course mandated and approved by the

Illinois Law Enforcement Training Standards Board or such

board waives the training requirement by reason of the

investigator's prior law enforcement experience or training

or both.

The board shall not waive the training requirement unless

the investigator has had a minimum of 5 years experience

as a sworn Officer of a local, state or federal law enforcement

agency, 2 of which shall have been in an investigatory

capacity.

DEDAS CAINE iis ies o Sp ncrtr nee

App. 79

(b) The Director must authorize to each investigator

employed under this Section and to any other employee of

the Office exercising the powers of a peace officer a distinct

badge that, on its face, (i) clearly states that the badge is

authorized by the Office and (ii) contains a unique

identifying number. No other badge shall be authorized by

the Office.

CREDIT(S)

1992 Main Volume

P.A. 80-1, 1st Sp.Sess., § 7.06, added by P.A. 81-1057, § 2,

eff. Jan. 1, 1980. Amended by P.A. 82-292, § 1, eff. Aug. 19,

1981; P.A. 83-270, § 1, eff. Jan. 1, 1984: P.A. 84-1062, § 1,

eff. July 1, 1986; P.A. 86- 9, § 1, eff. Jan. 1, 1990; P.A.

87-677, § 1, eff. Sept. 23, 1991.

2001 Electronic Update

Amended by P.A. 88-586, § 70, eff. Aug. 12, 1994; P.A.

91-883, § 110, eff. Jan. 1, 2001.

FORMER REVISED STATUTES CITATION

1992 Main Volume

Formerly I11.Rev.Stat.1991, ch. 14, 207.06.

HISTORICAL AND STATUTORY NOTES

IL ST CH 725 S 210/7.06 Page 19.

P.A. 82-292 increased to 4 from 2 the maximum number of

investigators to be hired.

P.A. 83-270, in the first sentence, substituted "case and tax

objection cases" for "appeals" and added the second

sentence.

App. 80

P.A. 84-1062 substituted "board" for "Commission".

P.A. 86-9, increased the number of investigators to 8 from 4

and added the second, third and fourth paragraphs relating

to investigator status and training.

P.A. 87-677 increased the number of authorized

investigators from 8 to 12.

P.A. 88-586, in the paragraph requiring investigators to

complete basic police training to acquire peace officer status

or to exercise police powers, substituted "the Illinois Law

Enforcement Training Standards Board" for "the Illinois

Local Governmental Law Enforcement Officers Training

Board".

P.A. 91-883 designated the subsections and added subsec.

(b) relating to badges. 725 I.L.C.S. 210/7.06

IL ST CH 725 § 210/7.06

App. 81

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Phillip D. Carlson

and Thomas Smith

Plaintiffs-Appellees, No. 01 C 9235

Charles Norgle, Sr.,

Judge Presiding.

Mary E. Gorecki, et. al,

Defendants-Appellants.

PLAINTIFF'S RESPONSE TO DEFENDANT'S

STATEMENT OF UNCONTESTED FACTS AND

PLAINTIFF'S STATEMENT OF ADDITIONAL

MATERIAL FACTS PURSUANT TO LOCAL RULE

56.1(b)(3) 3

NOW COMES the Plaintiffs, PHILLIP D. CARLSON and

THOMAS R. SMITH, by and through their attorneys, John

P. DeRose and Associates, and responds to Defendant's

Statement of Uncontested Material Facts and states

additional material facts pursuant to Local Rule 56.1(b)(3)

I PLAINTIFF'S RESPONSE TO DEFENDANT'S

STATEMENT OF FACTS

J 1. Undisputed.

2. Undisputed.

3. Undisputed.

4. Undisputed.

App. 82

5. Undisputed.

6. Undisputed.

ys Undisputed.

8. Undisputed.

9. Undisputed.

10.Undisputed.

II PLAINTIFF'S STATEMENT OF ADDITIONAL

FACTS PURSUANT TO LOCAL RULE 56.1(b)(3).

1. Barsanti is a former Assistant and First Assistant

State's Attorney for Kane County. He joined in the

office in 1979. (Ex. 1 at 8). He worked under five

different State's Attorneys. (Ex. 1 at 10).

2. Barsanti was the investigator's direct supervisor since

January 1986. He is the one who gave them

assignments. (Ex. 1 at 27,29).

3. In 1992 Barsanti ran for election for the State's

Attorney position. He was defeated by David Akemann.

Barsanti lost the primary. Although they were political

rivals Barsanti was retained in his position by

Akemann after Akemann became the State's Attorney.

(Ex. 1 at 77-78). And, there were Assistant State's

Attorneys who did not support the State's Attorney

politically that continued to work in the office at their

jobs. (Ex. 1 at 15-16).

4. NoAssistant State's Attorneys who supported Barsanti

Le Fae

SE ee ee Be

ond

10.

11.

12.

App. 83

were fired after Akemann won. (Ex. 1 at 21-22).

Barsanti is not aware of any requirement that

Assistant State's Attorneys or investigators in that

office be of a certain political persuasion in order to

hold their job there. (Ex. 1 at 22).

_Barsanti characterized the duties of investigator as

mainly serving subpoenas. "That was the bulk of it."

(Ex. 1 at 23-24).

When investigators would be asked to actually

investigate, they would have specific factual things to

do. For instance he would direct them to take a picture

of a particular building. (Ex. I at 24).

Trial strategy was not discussed with the investigators.

(Ex. I at 24).

The Kane County State's Attorney's office had

investigators who were paid by the office and also

investigators that were assigned there from different

departments and paid by those departments. (Ex. 1 at

25). Those investigators did not need to belong to a

certain political party in order to work there. (Ex. 1 at

34).

There have been known Democratic investigators that

worked under Republican State's Attorneys not only as

investigators but lead investigators. (Ex. 1 at 37,40).

T.R. Smith was one of the best investigators the office

ever had. (Ex. 1 at 43-44).

No investigator ever made policy for the office. (Ex. 1 at

47).

13.

14.

15.

16.

17.

18.

19.

20.

21.

App. 84

At times investigators would be called upon to give the

policymakers information contained.in their reports but

that was the extent of it. (Ex. 1 at 47).

In Barsanti's opinion a requirement of political

allegiance is not necessary to carry out the duties of an

investigator. (Ex. I at 47).

Neither Smith or Carlson ever indicated that they

would not do a particular taskbecause it violated their

perceptions of political allegiance. (Ex. 1 at 50).

Neither Smith or Carlson ever refused an assignment.

(Ex. 1 at 51).

During Barsanti's tenure, the State's Attorney was not

"directly in the loop" regarding investigator

assignments. (Ex. 1 at 60).

The investigators did not "investigate" in the sense of

starting an investigation, developing an entire file and

making recommendations. That is not what they did.

They did things like serve subpoenas which was the

most time consuming job, take pictures, find addresses,

and walk off distances with a distance wheel. It was

very, very seldom that they took witness statements.

(Ex. I at 65-66,91).

The investigators "opinions" of witnesses, if asked for,

affected only small parts of the jobs of the State's

Attorney and his Assistants. (Ex. I at 75).

Currently, Akemann is Assistant Attorney General of

Illinois. (Ex. 2 at 6).

Akemann was the State's Attorney for Kane County

from 1992 to through 2000. (Ex. 2 at 7).

22.

23.

24.

25.

26.

28.

29.

30.

31.

32.

33.

App. 85

Akemann never made a condition of employment that

any Assistant had to be a member of a certain party or

have voted for him. (Ex. 2 at 12).

There was never a requirement or condition of

employment that any other employees like clerks and

secretaries be of a certain political party. (Ex. 2 at 12).

Akemann never asked about political affiliations of his

civilian employees. (Ex. 2 at 12).

Akemann appointed investigators but there was never

a requirement that the belong to a certain party or have

voted certain ways. (Ex. 2 at 17).

Special investigators were appointed without reference

to political beliefs or affiliations. (Ex. 2 at 18).

. Under Ackemann, the First Assistant would give the

investigators their assignments. (Ex. 2 at 21).

Investigators did not make policy decisions. (Ex. 2 at

21).

The investigators job assignments were not dependent

on their political party. (Ex. 2 at 22).

Democratic investigators worked just as well as

Republican investigators. (Ex. 2 at 22).

Neither Smith or Carlson ever refused a job

assignment. (Ex. 2 at 23 ).

Political affiliation is not a controlling factor in hiring

people in the office. (Ex. 2 at 23).

Akemann has no knowledge of Smith or Carlson

working on political campaigns while at work. (Ex. 2 at

26).

34.

35.

36.

38.

39.

App. 86

The State's Attorney cannot unilaterally appoint a

special investigator to assist a grand jury in whatever

function they need assistance with. There has to be a

motion by a certain number of the grand jurors and the

foreperson presented to the court and the court would

appoint the investigators based on the motion. (Ex. 2 at

51).

Investigator's "input" into decisions about whether to

charge someone would be limited to a factual report

given to the office. Investigators do not recommend that

any particular decision be made as a result of their

investigations. (Ex. 2 at 54-55).

As far as confidentiality of the investigations, they are

confidential to the same degree as any police

investigation in that the general public does not attend

those meetings. (Ex. 2 at 56).

. Ackemann understood that as State's Attorney he could

not discharge someone from his job for an unlawful

purpose like exercising their First Amendment rights.

(Ex.2 at 87).

State's Attorneys do not have the right to require

employees to remain silent if the employee has learned

that there had been a breach of the law. (Ex. 2 at 91 )

Smith and Carlson always observed the confidential

nature of the investigations.(Ex. 2 at 89).

40. Carison was an investigator for the Kane County State's

Attorney's Office from May of 1996to December 1, 2000

when he was fired by Mary E. Gorecki. (Ex. 3 at 12).

41.

Smith was an investigator for the Kane County State's

Attorney's Office for over 2 years until fired by Mary Gorecki

on December 1, 2000. (Ex. 4 at 12).

42.

43.

44.

45.

46.

47.

48.

App. 87

Prior to being hired as an investigator with Kane

County Carlson had over 12 vears experience in

investigative work for the Illinois Secretary of State's

Office. (Ex. 3 at 3).

Prior to being hired as an investigator with Kane

County, Smith had over 30 years experience in

investigative and law enforcement work for the Cook

County Sheriff's Police. (Ex. 4 at 3).

As part of Carlson's and Smith's training for

investigative work with the Kane County State's

Attorney's Office, they attended and successfully

completed the Northeast Multi-Regional Police

Training Institute Program, a 400 hour training

program. (Ex. 3 at 14). (Ex. 4 at 4).

Carlson's salary as an invnatinnanes with Kane County

was paid in part by federal grant money. (Ex. 3 at 5).

As an investigator with the Kane County State's

Attorney's office, Carlson and Smith were expected to

and did the ministerial tasks as assigned to them by an

Assistant State's Attorney. (Ex. 3 at 16) (Ex. 4 at 5).

Carlson's and Smith's assignments included locating

witnesses, serving subpoenas, transporting witnesses to

court, and interviewing witnesses for trial under the

direction of the Assistant State's Attorneys who gave

them the assignments. (Ex. 3 at 7), (Ex. 4 at 6).

Carlson and Smith rarely undertook an investigation

that was needed by the AssistantState's Attorney's to

go to trial or which involved post-trial sentencing. (Ex.

3 at 8), (Ex. 4 at 7).

49.

51.

52.

53.

54.

55.

56.

App. 88

On those occasions where Carlson and Smith were

called upon to investigate a matter, their job was to

augment the police department's primary investigation

by securing documents by way of a subpoena which was

prepared by others, getting physical control of the

documents, and delivering them to the Assistant who

requested them. (Ex. 3 at 19) (Ex. 4 at 18).

The investigations done by Carlson and Smith were

supervised by an Assistant State's Attorney. (Ex. 3 at

10), (Ex. 4 at 9).

Carlson and Smith had minima! professional contact

with the State's Attorney while they worked as

investigators. (Ex. 3 at 11), (Ex. 4 at 10).

Carlson and Smith were never consulted during any

policy-making conferences in the Kane County State's

Attorney's Office. (Ex. 3 at 112) (Ex. 4 at 11).

Carlson and Smith did not participate in any way in

the policy-making decisions of the Kane County State's

Attorney's Office. (Ex. 3 at 13) (Ex. 4 at 12).

Before Carlson and Smith were hired, and during their

employment with the Kane County State's Attorney's

Office, that office had no "litmus test" of political

affiliation necessary to be an investigator. (Ex. 3 at 14),

(Ex. 4 at 13).

Political affiliation was unimportant to and

unnecessary for the tasks assigned to Carlson and

Smith as investigators in the Kane County State's

Attorney's Office. (Ex>3 at 15), (Ex. 4 at 14).

David Moore was a Special Investigator for the Kane

County State's Attorney'sOffice from January 1994

until April, 1998. (Ex. 5 at 1).

57.

58.

59.

60.

61.

62.

63.

64.

App. 89

In May of 1998 Moore left the office when he became

the Coroner of Kane County, having been appointed to

that position by the Kane County Board where |

remained until November 2001. (Ex. 5 at 3).

Prior to his hiring as an investigator for the Kane

County State's Attorney's Office, Moore had over

twenty-eight (28) years experience in investigative

work for the Kane County Sheriff's Police. (Ex. 5 at 4).

When Phillip Carlson was hired by Kane County

State's Attorney David Akemann, Moore was given the

responsibility of making sure that Carlson was enrolled

in and received all training and certification that was

required by the Illinois Law Enforcement Standards

Board. (Ex. 5 at 8).

Phillip Carlson received all such required training and

certification. (Ex. 5 at 19).

While employed as an investigator in the Kane County

State's Attorneys Office, I was expected to do and did

the ministerial tasks as assigned to me by the Assistant

State's Attorneys of the office. (Ex. 5 at 10).

Assistant State's Attorneys assigned Moore to locate

witnesses, serve subpoenas, transport witnesses to

court, and interview witnesses for trials they were

preparing or presenting. (Ex. 5 at 11).

Moore was the lead investigator for the Kane County

State's Attorney's Office all the while he was there. (Ex.

5 at 12).

When an Assistant State's Attorney needed any

follow-up investigation to a case he was working on, he

66.

68.

69.

70.

App. 90

would request assistance from John Bersanti, the First

Assistant State's Attorney. (Ex. 5 at 13).

. Mr. Bersanti would then review and approve the

request and would assign a particular investigator to

fulfill that request. (Ex. 5 at 14).

On those occasions where the investigator was called

upon to investigate a pending or potential case, their

responsibilities were to augment the _ police

department's primary investigation by securing

documents by a subpoena prepared by others, getting

physical control of the documents, and delivering them

to the Assistant State's Attorney who requested them.

(Ex. 5 at 116).

. The investigations done and tasks accomplished by

Moore for the Kane County State's Attorney's Office

were always supervised by the Assistant State's

Attorney who requested the particular investigation or

task. (Ex. 5 at 17).

Moore had only minimal professional contact with the

State's Attorney of Kane County while he worked as an

investigator in his office. (Ex. 5 at 119).

Moore did not participate in any way in the policy

making decisions of the Kane County State's Attorney's

Office. (Ex. 5 at 20).

At no time was Moore ever present in or consulted

during any policy making conferences in the Kane

County State's Attorney's Office, with one exception.

On only one occasion, Moore was brought into a

meeting with the State's Attorney and the First

Assistant State's Attorney and advised that a chain of

command was going to be established for the office on

how cases were to be assigned. (Ex. 5 at 21,22).

73.

74.

76.

App. 91

At no time during Moore's employment with the Kane

County State's Attorney's Office was there a "litmus

test" of political affiliation necessary to be an

investigator for the office. (Ex. 5 at 29).

Moore has always been a registered Democrat in Kane

County, a predominantly Republican County. (Ex. 5 at

30).

Political affiliation was unimportant to and

unnecessary for the tasks assigned to Moore as an

investigator in the Kane County State's Attorney's

Office. (Ex. 5 at 31).

At no time was Moore's personal integrity and/or his

professional reputation ever questioned while he

worked as an investigator for the Kane County State's

Attorney's Office. (Ex. 5 at 32).

Gorecki blamed Carlson for exposing information

regarding an alleged kickback scheme the that

Gorecki was involved in. (Ex. 6 at 144)

Smith authored and circulated a letter criticizing

Gorecki and Gorecki knew of its existence. (Ex. 7,

Cmplt and Answer at 34-35).

Respectfully submitted,

/s/ John P. DeRose

John P. DeRose and Associates

15 Spinning Wheel Road Suite 328

Hinsdale, Illinois 60521

(630) 920-1111

Phillip D. Carlson

and Thomas Smith

App. 92

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION.

)

Plaintiffs-Appellees, ) No. 01 C 9235

)

Vv. ) Charlies R. Norgle, Sr.,

) Judge Presiding.

Mary E. Gorecki, )

Defendant-Appellant. )

) JURY REMANDED

)

PLAINTIFF'S EXHIBITS IN SUPPORT OF THEIR

RESPONSE TO DEFENDANT'S MOTION FOR

SUMMARY JUDGMENT

NOW COMES the Plaintiffs, PHILLIP D. CARLSON

and THOMAS R. SMITH, by and through their attorneys,

John P. DeRose and Associates, and offers the following

exhibits in support of their response to Defendants’ motion

for summary judgment and statement of additional material

facts pursuant to Local Rule 56.1(b)(3).

Exhibit No. Description

Deposition of John Barsanti.

Deposition of David Akemann

Affidavit of Phillip D. Carlson

Affidavit of Thomas R. Smith

App. 93

Affidavit of David W. Moore

6 Report of Proceedings before the ARDC, In Re:

of Gorecki

7 Letter from T.R. Smith dated 11/3/2000

Respectfully submitted,

/s/ Anthony T. Capus

John P. DeRose and Associates

15 Spinning Wheel Road Suite 328

Hinsdale, Illinois 60521

(630) 920-1111

Matter

App. 94

EXHIBIT 1

App. 95

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

- Phillip D. Carlson

and Thomas Smith

Plaintiffs,

v. No. 01 C 9235

Mary E. Gorecki, et al.,

Defendants.

THE DEPOSITION OF JOHN BARSANTI, called by

Plaintiff, for examination, taken pursuant to the Federal

Rules of Civil Procedure of the United States District Courts

pertaining to the taking of depositions, taken before JEAN

M. HINCKS, a Notary Public and Certified Shorthand

Reporter within and for the County of Cook and State of

Illinois, taken at 15 Spinning Wheel Road, Hinsdale,

Illinois, on the 11th day of July, A.D. 2002, at 2:10 P.M.

REPORTED FOR ADVANTAGE REPORTING SERVICE

BY: JEAN M. HINCKS

CERTIFIED SHORTHAND REPORTER

REGISTERED PROFESSIONAL REPORTER

Direct-Examination by Mr. DeRose 4

Cross-Examinabon by Mr. Bersani 51

Re-Direct Examination by Mr. DeRose

App. 96

Exhibits Identified:

Exhibit No. 1 51

Exhibit No. 2 82

Exhibit No. 3 84

Exhibit No. 4 107

Exhibit No. 5 109

PRESENT:

THE LAW OFFICES OF

JOHN P. DeROSE L ASSOCIATES

BY: MR. JOHN P. DeROSE

15 Spinning Wheel Road, Suite 329

Hinsdale, IL 60521

(630) 920-1111

On behalf of the Plaintiffs:

THE LAW FIRM OF HERVAS, SOTOS, CONDON 6

BERSANI, P.C. BY: MR. MICHAEL D. BERSANI

333 Pierce Road, Suite 195

Itasca, IL 60143 ei

(630) 773-4774

On behalf of the Defendant,

Mary E. Gorecki, State's Attorney of Kane County;

ALSO PRESENT:

Ms. MEG GORECKI

State’s Attorney

MS. M. KATHERINE MORAN

Assistant State's Attorney;

MR. ALLAN R. STASICA

Assistant State's Attorney;

App. 97

AND

MS. SHARON LAW LARSEN

Attorney-at-Law.

(Witness sworn.)

JOHN BARSANTI,

called as a witness herein by the Plaintiffs, having

been first duly sworn, was examined and testified as follows:

DIRECT-EXAMINATION

BY: MR. DCROSE

Q Sir, will you please state your name for the

record?

A John Barsanti.

Q Mr. Barsanti, have you ever given a deposition before in

your experience?

A Yeah, I have.

Q Because I don't know what that experience

might have been, it might have been in a state court,

it might have been in a federal court, I'm going to

give you a little preamble as to what you can expect

“There and because the rules of the different court

systems do vary from court system to court system

We are going to be taking this

deposition according to all the applicable rules of

the Federal District Court for the Northern District

of Illinois, the appropriate rules of the Seventh

Circuit Court of Appeals, and of the United States

Supreme Court that apply to the taking of .depositions.

During the course of this deposition,

to make sure that those rules are followed, counsel from

time to time will interject, and you being an attorney

probably understand that they have a unique way of

interjecting. Sometimes they use a word like objection, but

however counsel does interject, if you hear the attorneys in

the courtroom -- or in this deposition room start to telk, if

you could just stop talking until we have an opportunity to

App. 98

discuss on the record whatever the objection might be, we

would all appreciate that.

In the course of the taking of this

deposition, we do not want you to guess. If you do not know

the answer to a question, there's no harm in telling us I

don't know, or if it's something you believe you did know at

one time but have since lost from the lexicon of your

memory, you can tell us | don't remember or I have

forgotten, and we will understand that.

During the course of this deposition,

we will be taking periodic breaks, but if we have notcalled

a break soon enough for your own personal

comforts and needs, if you'll let us know -

A Fine.

-- we'll be happy to interrupt the proceedings for whatever

purposes are necessary.

You are not represented by an attorney

here today, is that correct, sir?

A Correct.

Q And you are here pursuant to a subpoena?

A 1 don't think I am.

Q I didn't give you a subpoena?

A No.

Q I know you did indicate that you wanted a subpoena

A Right.

Q -- and if you do need a subpoena still -

3 ANbo, that's fine.

Q In the course of taking this deposition, we

need verbal answers, of course, to any questions

that are asked. The reporter will take down verbatim

everything that is said here today.

Do you have any questions about the

proceedings before we start into them?

A No.

Q. Mr. Barsanti, by whom are you employed at this time?

A By the Law Firm of Camic, Johnson, Wilson, &

App. 99

McCulloch. I have several jobs, actually. Do you want me to

give them all to you?

All right. Go ahead.

A I'm employed by the Law Firm of Camic, Johnson, Wilson

& McCulloch of Aurora. I have a contract with the Illinois

State Appellate

Prosecutor's Office, and I also am employed -- I am a

contractor with Kane County to be what they call a conflict

counsel.

Q.Let me just back up a little bit with you. The Illinois State

Appellate -- did you say Defender's Office?

A Prosecutor's Office.

Is that a part-time job?

A It's a contract. I bill them. They assign me to do certain

things, and then I bill them. |

Q. And your full-time or your most -- the practice that takes

the most of your time, I take it,

is the Camic, Johnson firm?

A Right, right.

Q Then you indicated you have a third practice as a conflict

A Counsel, right, within Kane County. If the Public

Defender cannot be involved in a criminal case because they

have a conflict, usually when there's multiple defendants,

then I get involved in that, and that usually takes the form

of juvenile court. That's the bulk of it is juvenile court.

Q And your work in that capacity would be as a defense

lawyer?

A Well, in juvenile court, it depends.

Sometimes you're a guardian ad litem and things like that.

You can play different roles, but I'd say probably most of it

is as a defense attorney.

Q Mr. Barsanti, I know that at one point you were an

Assistant State's Attorney for Kane County, is that correct?

A Right.

Q When did you first become an Assistant State's Attorney

App. 100

for Kane County?

A October of 1979.

Q And was that an assignment immediately upon your

completion of law school?

A No. I finished law school in -- I took the bar in July of

1977, and then in like March or February of 1978, I started

with the Illinois Department of Labor, and then I worked

there. Ia November or October of '79, 1 signed on with the

State's Attorney's Office. :

Q And who was the State's Attorney when you first signed

on with Kane County?

A Gene Armentrout.

Q Could you spell that last name?

A A-R-M-E-N-T-R-O-U-T.

Q And what was your titled position with the State's

Attorney Office at that time?

A Assistant State's Attorney.

Q After Mr. Armentrout completed his teen as State's

Attorney, did you continue with the office for an additional

period of time?A Yes.k

Q For how much additional period of time did you remain

with the Kane County State's Attorney Office?

A Till whatever the last day in November is,

the 30th, I think, November 30, 2000.

Q And over the period of time that you were

with the Kane County State's Attorney's Office, how

many different State's Attorneys did you work under? 5

AI think it's five; Armentrout, Morrow,Casey, Johnson, and

Q The first of those names, Morrow, how would

iyou spell that?

0 A M-O-R-R-O-W.

Q Were these all male State's Attorneys?

A Yes.

Q Under Mr. Morrow, what was your titled

position?

A He came in in December of '80. 1 was an

Pe ate a i Bie tel ie

App. 101

Assistant State's Attorney until January of '86 when

dhe appointed me chief of the Criminal Division.

Q Before he appointed you to the position of

chief of the Criminal Division, what were your duties

and assignments as an Assistant State's Attorney?

A Under Armentrout, I was in juvenile court,

and Morrow put me in as a felony trial assistant, and

I was a felony trial assistant from when he came in,

which would be December of '80, until he made me chief of

the Criminal Division.

Q. And then when he made you chief of the Criminal

Division, did your duties and responsibilities change in some

fashion?

A Yeah.

Q. How did they change?

A As a trial assistant, all I did was work

files. That's all I had to do, and we also had a felony

screening function where we'd all take turns similar to

felony review that they have in Cook County, similar to that,

where we took turns doing that a week at a time, but I just

worked files assigned to me. Now, when I was promoted, at

that point, I did -- I supervised every criminal case, every

criminal assistant, and I made every single

deal, every single plea bargain was approved by me. I ran

the grand jury completely. I did every grand

jury hearing and every grand jury investigation and

then still prosecuted. I still had some files, too.

Q. So, every single prosecution in the county then would

have passed through yov at that point -

A Right.

Q. -- when you were running the grand jury proceedings?

A There was a lot less then than there is now, but yeah,

that's the way it worked.

Q Then after Mr. Morrow was no longer assistant or no

longer State's Attorney, you then worked under Mr. Casey?

A Right.

App. 102

Q What was your titled position under Mr. Casey?

AI think he kept everything the same. Morrow left midterm

or almost near the end of his term. He ran for judge and he

lost, and then he went to private practice; like sometime in

early '88 I believe he left office. I can't remember the time,

but shortly before the end of his term he left.

Casey was appointed by the Kane County Board to be the

interim State's Attorney, and he really didn't

change anything. I still retained my position as chief of the

Criminal Division under Casey.

Q Did Mr. Casey then after completing the term of Mr.

Morrow run himself for State's Attorney?

A No, no. I think that was the deal he

couldn't run or something like that, I think, if I

recall how that went. That was his stipulation thathe

wouldn't run, and after him came Gary Johnson.

Q And under Mr. Johnson, what was your titledposition?

A First Assistant.

Q And immediately upon Mr. Johnson becoming State's

Attorney, did you get appointed as First Assistant?A Yeah,

yes.

Q Now, as First Assistant State's Attorney,you were the

highest State's Attorney in the office under the State's

Attorney, himself?

A Right.

Q What were your duties and responsibilitiesthen under Mr.

Johnson?

A Well, I don't know that they were all that different than

what I did before. In fact, I would say they were the same.

Just by title, I hads upervisory authority over the people in

the Civil Division, which I never had before. That really was

more of a -- | think that was probably more -- I didn't do

much in civil. I had a very limited supervisory role. I helped

pick the chief of the1 Civil Division. I really didn't -- wasn't

involved in any of their stuff that they did, except in a very

App. 103

tangential way. I think the State's Attorney

probably was more involved in that than I was, but

for the most part, my job remained the same.

Q How long did you remain First-Assistant

under Mr. Johnson?

A His whole term, for those four years.

Q And after his four-year term, you remained

in the employ of the Kane County State's Attorney's

Office under Mr. Akemann?

A Yes.

Q What was your titled position under

Mr. Akemann?

A When Mr. Akemann came in, he abolished the

job of First Assistant. So, there was no First

Assistant. He made me chief of the Criminal

Division, and he had a chief of civil, and I think

after a while he had chief of juvenile, too, I don't

remember, but that was my title, and for the most

part, my job really didn't change.

Q So, your job then as both chief of criminal

under Mr. Casey and Mr. Akemann and your job as First

Assistant under Mr. Johnson, as far as you're

concerned, was very similar under all of those

persons?

A Even when -- when Morrow made me chief of

the Criminal Division, he had a First Assistant, and

he didn't have a First Assistant after that either.

So, yeah, for those periods of time, it was the same.

Q. Have you ever run for political office?

A Yes.

Q. What political offices have you run for?

A Kane County State's Attorney.

Q. And when did you run for Kane County State's

Attorney?

A 1992.

Q. So, you would have ran against Mr. Akemann? A Yes.

App. 104

And Mr. Akemann defeated you for the

position, is that correct?

A In the primary, right.

Q. Now, after Mr. Akemann ascended to the

position of Kane County State's Attorney, was there

any discussion between you and him as to whether or

not your position with the Kane County State's

Attorney's Office was going to be eliminated?

A You mean as the First Assistant?

Or even as an employee.

A See, I'd known Dave for a long time because he had been

in the office when | was there. When I first started, he was

in the Civil Division, and I think he was chief of Civil

Division for a while, and when Gary came in, he left. I didn't

know where he was working at that time. So, after I lost, I

went to Akemann, and I told him that I wanted to remain

with the office, and he said, well, let's give it six months and

see how it turns out. I thought that was a good idea, and

after six months or so, you know, things were working out

okay, and I remained.

Q. As the chief of the Criminal Division, did

you have under the various State's Attorneys that you

worked responsibilities for developing policy in the office

from time to time?

A Yes.

Q. The first time in your opinion you were involved in a

policy-making position under which State's Attorney would

that have been?

any support among those people for your candidacy?

A I couldn't tell you that everybody did, but

a great number of them did. I think at the time my

wife was a clerical employee in the office. So, we knew a lot

of those people pretty closely.

Q. The investigators, the civilian

investigators in the State's Attorney's Office, did you have

the support of any of them for your candidacy to be State's

App. 105

Attorney?

A Yeah, yes, You know, I'm trying to think about that period

of time, and I'm thinking there was a guy named T.J.

Strickland was an investigator, and also, there was a guy

named Frank Knight, who was a Batavia police officer.

Strickland had been an Elgin police officer,

iQ And as you remember it, did Mr. Strickland

and Mr. Knight support your candidacy? i A Yeah.

Q When you lost in the campaign against

Mr. Akemann, do you know whether any of those Assistant

State's Attorneys who had supported your candidacy were

ultimately terminated from their employment after Mr.

Akemann became State's Attorney?

A I don't remember anybody. I would say no.

Q. Was there, to your knowledge, any of the

civilian employees, clerical help or investigators,

who lost their employment because they had supported your

candidacy after Mr. Akemann ascended to his position?

A No, not that I know of.

Q As far as you understood it in Kane County, was there a

requirement that one be a member of a particular political

party in order to be an

Assistant State's Attorney in Kane County over the years

that you had been working in the office?

A No, I was never aware of that.

Did there exist in Kane County during the

Period of time that you were an Assistant State's

Attorney, the chief of the Criminal Division and

t later First Assistant State's Attorney, ever a requirement

that investigators be members of a Particular political

party?

A Not that I'm aware of.

Q. Over the period of time that you were

working in the Kane County State's Attorney's Office,

did you yourself, become involved in working with the 2

investigators in the State's Attorney's Office? 3 A Yes.

App. 106

Q Did vour involvement with the investigators 5 change over

the period of time that you were in the 6 office from its

inception until finally when you 7 left?

A Yes.

Q How initially was your involvement when you lo were a

trial Assistant State's Attorney? What iI initially was your

involvement with the 12 investigators?

A Early on, I'm going back to when I was just an assistant,

the investigators served paper, served subpoenas, because

at the time, the Sheriff's

Department was -- the opinion was -- and I was just working

within the policy of the office, but the opinion was the

Sheriffs Department didn't serve subpoenas all that well,

and the only way we could really count on subpoena service

getting done was to have our own investigator do the

subpoena service, and that was by far the bulk of it. When

I was an

assistant, I would need to get somebody subpoenaed,

and I would instruct an investigator to go and subpoena

somebody or take a photograph. Sometimes that would

happen, or in limited situations, go and interview a witness

that may testify and things like that. That was my

involvement as an assistant. I would characterize that as

trial assistant. That was my involvement with them.

Q. And this would be when you were working in preparing

cases for presentation, prosecutions in the court system?

A Right.

Q. Would these investigators then work in conjunction

with you in making that preparation, follow your direction?

A Yeah. I told them what to do, and they

would go and do it. I mean, I didn't sit down with them and

discuss trial strategy or anything. It was just really basically

a function of: I need a photograph of that building and I

need it by tomorrow and could you go out there and do it,

and that's really what they did for us.

Q. During that period of time that you were an

App. 107

Assistant State's Attorney using the services of the

investigators for your courtroom presentations, were

any of those investigators ever involved in any

policy-making decisions in your office?

A When I was an assistant?

MR. BERSANI: Are we talking about investigators

employed by the Kane County State's Attorney's Office; is

that what you're talking about?

MR. DeROSE: Yes, that's what I'm asking about. gy MR.

DeROSE:

Q. First of all, let's clarify that. When I

talk to you about investigators in the Kane County State's

Attorney's Office, are there different kinds of investigators?

AI suppose I'd have to answer that by saying at what period

of time?

When you were an assistant.

A In the early days when I was an assistant,

there were very few investigators. I think the most that I

ever recall having is two, and there were some that -- during

that period of time, there were some that were directly hired

by the office and paid by

the office, but there were times when we had assigned

people from like the Sheriff's Department, if I

recall, once or twice we'd have people assigned to 2 us, but

my recollection is most of them were 3 employees.

Q. Employees of the State's Attorney's office? A Right.

Q. We're talking about those early years now

when you were an Assistant State's Attorney. Do you

remember the names of the investigators who were

hired by your office to be investigators at that

time?

A My earliest recollection of an investigator

is a guy named Ray Schuett, who was a retired Geneva

policeman. I think he was there when I started.

Q Could you spell his last name?

A And this is a guess, S-C-H-U-E-T-T.

App. 108

Q Was there any other investigator in those

early years that you remember besides Mr. Schuett

hired by the office? 18

A We had Wayne Henke.

Q Spell his last name.

A H-E-N-K-E. He was a retired Elgin

Policeman.

Q Anyone else you remember?

A We had a guy -- 1 can't remember his name. He later died

of cancer. I can't recall his name. I don't think he'd ever been

a police officer, and I'm

sure there were others that I can't recall.

Q. Do you remember the names of any of the investigators

that had been assigned or detailed to your office from the

Sheriff's Department in those early years?

A We had some people detailed to us from other bigger

departments. We had a guy named Ray Weaver detailed to

us from Aurora; I remember that.

Q. That would be W-E-A-V-E-R?

A Yeah, and it seems to me we had -- I'm not

even sure about this. What name comes to my mind is a guy

named Ken Anderson for a while from the Sheriff's

Department who was detailed to us. There are others. I can't

recall their names.

Q. Now, when you then ascended to the position of chief of

the Criminal Division, you indicated that your

responsibilities in the office were increased dramatically, is

that correct?

A Right.

Q. Did your contact and supervision over

investigators change in any way once you became chief 2 of

the Criminal Division? ;

A Yeah. I became their boss, their direct 4 supervisor.

Q Now, do you remember the names of the

investigators who were actual employees of the Kane 7

County State's Attorney's Office when you were s working

App. 109

as chief of the Criminal Division under

Mr. Morrow?

A Wayne Henke was under both those administrations, I

recall that.

Q Anyone else?

A I'm drawing a blank now. There was a long line of them.

As I sit here, I'm not being able to dredge up any other

names.

Q But as the direct supervisor of the

investigators for the Kane County State's Attorney's Office,

what was your actual contact with them? What were you

responsible for with them?

AI gave them assignments.

MR. QERSANI: what time period are we talking here?

MR. DCROSE: I'm asking about under Mr. Morrow,

.and then I'm going to go on.

By MR. DeROSE:

Q Now, Mr. Morrow was State's Attorney under what period

of time?

A I think 'SO to '87, approximately.

Q And when about was it that you became chief of the

criminal Division?

A January of '86.

Q. So, from 1986 to the end of Mr. Morrow's ten, you gave

the assignment to the investigators, right?

A Except this is what we used to do with it.

Keep in mind that that office was a lot smaller at that time.

If a felony assistant needed paper to get served on

somebody, he would go directly to the investigator and say,

Could you serve this paper now? If there were disputes

involved or because we only had -- for a period of time, we

only had one guy, and his jobs were divided. If I told him to

do something and somebody would come in with a subpoena

that needed to get served, I would mediate that and direct

him which one to do, and that kind of thing, but the

assistants didn't have to clear it through me to get

App. 110

a subpoena served, but other than that, though, it

had to be cleared through me.

Q. Sometime after that initial direct

supervision, did you develop some kind of a system that

changed the way in which assignments were given to

investigators?

AI didn't actually develop a written system

or even a system -- any kind of formal system until after

Akemann came in.

Q So, it was more -- sounds like a more catch-as-catch-can

by whatever assistant who could find an investigator who

had some time to do whatever assignment he wanted until

you developed this new system under Akemann?

A Right.

Q. This system you developed under State's Attorney

Akemann, when did you do that, immediately after he took

office?

A No. My recollection is that we started -we put that into

place when we went to the new building. That would have

been '93.

Q. And who was involved in putting the new

System into practice in '93?

A Me.

Q And you just got approval from Mr. Akemann?

A Well, my remembrance of this is that I told 4 David that

I think we need to take a little tighter

5 control over what the investigators did because we 6 had

a lot more cases, and at that time, the office 7 changed in

this sense, is that Akemann brought in 8 this idea that we

-- and we paid private subpoena 9 service. So, the actual

investigators only served

what I always called panic subpoenas. You know, it's

Saturday night and you realize you don't have this guy's

papers. The investigators would do panic

subpoenas, but for the most part, we had private

subpoena service, which was paid for out of the

App. 111

budget. So, what happened was that freed up some

time for the investigators to do some other things,

and because of that, I thought we needed to put some

procedures in place about the stuff they did because

they were doing more than serving paper at that time,

and so, I talked it over with Dave. He said, yeah,

do what you want, and then I put something together,

and I had him look at it, and I said he thought that

was all right, and then we put that in place.

Q Under Mr. Akemann, how many investigators

did you have?

A Well, again, you have to think about periods

of time on this because it changed. Early on, we had

two.

Q Who were they?

A They were Dave Moore and Phil Carlson. Now, 8

sometime after that, I think it was '94, they opened 9 a

Child Advocacy Center, which was -- it escapes me exactly

how that was funded early on, but if I

remember correctly, there was a grant funding in that or

else it was just like a line-item funding from the county

board, and part of the charter or the proposal

14 for the Advocacy Center, which I didn't have anything to

do with at the time, was investigators, and when _ the

Advocacy Center started going, there was some money

there for investigators. Now, early on, it wasn't much, and

we took people in from -- we took people from the various

departments like Aurora and Elgin, various police

departments, were assigned to the office as investigators for

the Advocacy Center but were not pa

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