# Appendix — Gorecki v. Carlson

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1505%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 960

## Text

~~“ Court, ts

(2) — 04 571 oct 2 3 2008

No. OFFICE oe

In the
Supreme Court of the Anited States

MARY E. GORECKI,

Petitioner,
v.

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,
U.
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.

I.

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...)

prs NAR

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;

eer es

insti ° a RT Ne a nan

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

>" ee et toe. CO ee Tile
bern. tow
ae a Belt al ae GDN Eas ERE

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

ats tt abi)

idle. as el

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

a

AW emer NR ae AL BSS Pe oe

Crees

velo

™ je Aa Be arbahite . en a BRIBE te

or

~)

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.

a thea

a eA te SES BS tak ea i Mlle ot Ee

ab DP) Ae
a Ba Nasi Da Ric it the alin
Fe ear aeRO

we iba ote

ha ee Si eas + ett ae te

ali ttl snc ANT Ot tas

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
qr

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;

O

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:

A.

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.

Ma

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...)

ae

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
a
=
3
"i x
. 3
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 :
we

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

ee

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

ee

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

Copr. © West Group 2002. All rights reserved. Current
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

J
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.

(c) The State's Attorney may request and receive from
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

Copr. © West Group 2002. All rights reserved. Current
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.

ee

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

or

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).

Inv

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1505%3A2. Public record. Not legal advice.