EAST ST. LOUIS – Prosecutors who asserted immunity against Circuit Judge Ron Duebbert’s malicious prosecution suit haven’t addressed his allegations, his lawyer argued in U.S. district court on Sept. 26.
Attorney Michael Lawder of St. Louis wrote for Duebbert that defendants David Robinson and Lorinda Lamkin-Finnell simply regurgitated the rules for a finding of immunity.
Lawder wrote that if Duebbert can prove they fabricated evidence, “he has not only pleaded a case, he has made a case.”
He wrote that they correctly cited cases regarding aspects of their privilege, “but suborning perjury in the investigation of a crime is not and cannot be one of them.”
He separately opposed a motion from their employer, Illinois State’s Attorneys’ Appellate Prosecutor, to dismiss the suit, by disputing the agency’s claim of protection under the Eleventh Amendment that limits federal jurisdiction over states.
Lawder wrote that local governments support the agency and that statute authorizes it in certain circumstances to do what it authorizes the state’s attorney to do.
Robinson and Lamken-Finnell filed felony information charging Duebbert with sexual abuse in November 2017.
Last year, with trial approaching, they decided not to proceed because complaining witness Carlos Rodriguez decided not to testify.
Duebbert sued the prosecutors, their agency, and the state in July.
He also sued St. Clair County and former state’s attorney Brendan Kelly, now acting director of Illinois state police; Belleville and police officers Daniel Collins and Timothy Crimm.
And, he sued Rodriguez and lawyer Alex Enyart, who represented Rodriguez when he signed an affidavit accusing Duebbert.
District judges recused themselves, so Chief Judge Diane Wood of the Seventh Circuit assigned Senior District Judge Richard Mills of Peoria.
Attorney General Kwame Raoul retained special assistant Karen McNaught of Springfield, who moved to dismiss the prosecutors in August.
McNaught wrote that they were absolutely immune from damages for decisions and actions concerning initiation and management of a criminal case.
“Probable cause is a good faith belief by the prosecutor that the accused was guilty of the offense charged,” she wrote.
“Probable cause does not depend on the actual facts of the case or the guilt or innocence of the accused, but on the honest and reasonable belief of the one commencing the prosecution.”
She wrote that Rodriguez signed the affidavit in September 2017, and Robinson and Lamken-Finnell had no involvement until October 2017.
She wrote that at the time it was submitted, there was no indication the statements were false. She also wrote that fabrication of evidence doesn’t violate due process unless it causes a deprivation of liberty.
For the appellate prosecutor agency, she moved to dismiss the suit under the Eleventh Amendment.
She wrote that Duebbert must seek relief from the Illinois Court of Claims.
In Lawder’s response on Sept. 26, he wrote that a federal court has jurisdiction over an entire action when federal law claims and state law claims derive from a common nucleus of operative fact.
Lawder wrote that Eleventh Amendment protection doesn’t extend to counties and municipal corporations.
He wrote that the agency didn’t cite its purpose or any details regarding its nature and function.
He wrote that the details are crucial to whether the agency is entitled to protection.
He also opposed the motion of the prosecutors, writing that Duebbert’s allegations clearly showed immunity doesn’t apply.
“Their statement about when they became involved is decidedly vague as that is an entire month during which time they are in the process of investigating this claim, and during which time it is alleged that they knew of the falsity of said affidavit,” Lawder wrote.
He wrote that there was an unusual change of plea for Rodriguez, imposition of an unusually light sentence, lack of an actual statement, and reliance on the affidavit in violation of procedures with knowledge that it wasn’t true.
“Further these defendants communicated with the other defendants, and understood and acknowledged the falsity of the affidavit before bringing charges,” he wrote.
Lawder wrote that liberty includes the right to engage in any of the common occupations of life.
He cited a district judge in Pennsylvania who found that arrest pursuant to a warrant was sufficient under the Fourth Amendment for a malicious prosecution claim to go forward.
“Here there was a warrant issued against the plaintiff, and he was arrested, and presented himself for an arraignment,” he wrote.
He wrote that Duebbert’s civil conspiracy claim pleaded sufficient facts to raise the reasonable inference that defendants are liable for misconduct.
“Plaintiff alleged that there is a reason that certain individuals did conspire against him, and that is that he is a Republican in a very Democratic county and he defeated a long time politician and judge John Baricevic and many persons in power did not like that fact that he was upsetting the long time order of things,” he wrote.
He wrote that the complaint properly alleged the elements of intentional infliction of emotional distress.
He wrote that the conduct was extreme and outrageous, the actors intended to inflict distress or knew it was probable, and the conduct caused distress.
“Given the pleadings, plaintiff is a circuit judge, and he has been denied to operate in his position by these defendants, and his good name has been defamed and he was accused of a crime, and his life has been made literally a living hell,” he wrote.
On Sept. 27, Judge Mills set jury trial in March 2021.