Special Prosecutor Not Entitled to Immunity

     SPRINGFIELD, Ill. (CN) — A special prosecutor accused of malicious prosecution is not entitled to sovereign immunity, a state appeals court ruled.
     On March 26, 2014, Louis Bianchi, the state’s attorney of McHenry County, and three of his employees — Joyce Synek, Ronald Salgado and Michael McCleary — filed a lawsuit in state court against special prosecutor Thomas K. McQueen, Quest Consultants International and Quest investigators Daniel Jerger, Robert Scigalski, James Reilly, Patrick Hanretty and Richard Stilling.
     Bianchi’s lawsuit claimed the defendants filed malicious charges as a form of political retaliation. The complaint sought damages for malicious prosecution, intentional infliction of emotional distress, and defamation.
     Bianchi says the investigation was started by a disgruntled former employee and unnamed political enemies that the employee performed political work while working in the state’s attorney’s office under Bianchi.
     Bianchi claims McQueen was appointed to assist specially appointed prosecutor Henry Tonigan in the case against him.
     Bianchi says McQueen conspired with the Quest investigators to limit Tonigan’s role and knowledge of the investigation and that the defendants “manufacture[d] and fabricate[d] evidence for the purpose of removing Bianchi from office by charging and prosecuting Bianchi and [the other plaintiffs] with criminal offenses, despite the lack of probable cause or credible evidence.”
     According to court records, the manufactured and fabricated evidence mainly consisted of false witness statements.
     In September 2010, Bianchi and Synek were indicted and arrested on multiple counts of official misconduct and obstruction of justice. The indictments alleged that Bianchi and Synek deleted certain computer files after receiving a grand jury subpoena to produce certain documents, court records state.
     On Oct. 22, 2010, a grand jury returned a superseding indictment alleging that Bianchi and Synek committed “theft of labor, services, and use of property” of McHenry County based on withheld evidence and another fabricated witness statement, Bianchi claims.
     On March 23, 2011, after a two-day bench trial, Judge Joseph G. McGraw acquitted Bianchi and Synek of all charges.
     McQueen and Scigalski then began an unauthorized second investigation into the plaintiffs’ handling of criminal cases.
     Defendants presented the false and manufactured evidence to the grand jury, and on February 24, 2011, based solely upon the false evidence, the grand jury returned indictments against Bianchi, Salgado, and McCleary for official misconduct, according to court records.
     In June 2011, Judge McGraw dismissed the indictments against Salgado and McCleary, and in August 2011, after a bench trial, Bianchi was acquitted of all charges.
     The plaintiffs’ lawsuit against the defendants was dismissed by the state court with prejudice on June 4, 2015 for lack of subject matter jurisdiction.
     The plaintiffs appealed on June 24, 2015 arguing that the defendants do not have sovereign immunity. A three-judge panel of the Illinois Appellate court agreed .
     “Because sovereign immunity affords no protection when employees of the State have acted in violation of statutory or constitutional law or in excess of their authority, which is precisely what plaintiffs here have alleged, plaintiffs were entitled to proceed in circuit court,” Justice Robert D. McLaren wrote. “Accordingly, we determine that the trial court erred by dismissing plaintiffs’ complaint for lack of subject matter jurisdiction.”
     However, the court threw out the plaintiffs’ defamation claim.
     “In this case, Bianchi, Salgado, and McCleary alleged that, four days after they were indicted and arrested, McQueen made defamatory statements during a press conference, repeating the false and inflammatory allegations contained in the indictments and making an additional false and inflammatory statement,” McLaren wrote. “The alleged additional statement that McQueen made was that a number of lawyers called McQueen and told him that cases handled by Bianchi ‘suggested that equal protection rights of all [criminal] defendants were not being upheld because of favoritism.’ Plaintiffs have not alleged that McQueen made any defamatory statements unrelated to their indictments in this case. Thus, plaintiffs have failed to allege facts that, if proven, would show that McQueen’s statements were made outside the scope of his official duties.”
     The case has been remanded back to state court. Justices Mary Seminara-Schostok and Robert B. Spence concurred with McLaren.

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