BELLEVILLE – Former judge Ron Duebbert can pursue a malicious prosecution claim against former St. Clair County state’s attorney Brendan Kelly, Circuit Judge Daniel Emge ruled in December.
Emge found the immunity of prosecutors from civil liability didn’t apply to Kelly after Chief Judge Andrew Gleeson appointed a special prosecutor.
“Due to Kelly’s alleged actions after the appointment of a special prosecutor, there is no way that Kelly could have been acting within the scope of his authority as he had no authority to act,” Emge wrote.
He also denied a motion from Kelly and St. Clair County to dismiss a claim of extreme and outrageous conduct.
He dismissed a civil conspiracy claim against Kelly and others without prejudice, finding Duebbert didn’t identify specific acts and actors.
Duebbert amended the complaint in January, to add conspiracy allegations.
He ran for circuit judge against chief judge John Baricevic in 2016.
Baricevic had resigned so he could run for judge instead of standing for retention, which would have required 60 percent approval.
Baricevic couldn’t capture 50 percent, and Duebbert won.
Gleeson, who replaced Baricevic as chief judge, filed a complaint against Duebbert with the Judicial Inquiry Board.
He assigned administrative duties to Duebbert but assigned no cases to him.
On Oct. 5, 2017, Kelly moved to appoint a special prosecutor for investigation of a complaint from Belleville policemen Dan Collins and Timothy Crimm.
Gleeson granted the motion on that date and asked the Office of State’s Attorneys’ Appellate Prosecutor to accept the appointment.
The agency accepted and assigned David Robinson and Lorinda Lamken-Finnell.
At the time Kelly held a seat on the Appellate Prosecutor’s board.
On Nov. 6, 2017, Robinson and Lamken-Finnell charged Duebbert with sexual abuse of his former criminal defense client.
They filed two felony counts and two misdemeanor counts by information, a method that doesn’t involve a grand jury.
They dropped the charges on July 6, 2018, by notice of “nolle prosequi.”
Duebbert sued St. Clair County, Kelly, Robinson, Lamken-Finnell, Collins, Crimm, and Rodriguez at U.S. district court in 2019.
He also sued Belleville attorney Alex Enyart, who had connected Rodriguez with Collins and Crimm in the capacity of “special victim advocate.”
Duebbert’s lawyer Michael Lawder of St. Louis sought relief under federal and state law.
Visiting judge Richard Mills of the Central Illinois district dismissed federal claims and found he lacked jurisdiction over state law claims.
Lawder took Duebbert’s complaint to St. Clair County circuit court, where defendants moved to dismiss it.
Emge, normally a judge in Washington County, held a hearing last October and issued his decisions on Dec. 21.
He found sovereign immunity didn’t apply to Kelly.
“Taking plaintiff’s allegations as true, Kelly had no authority to be involved in plaintiff’s case as a prosecutor due to the court’s prior appointment of the Office of State’s attorneys’ Appellate Prosecutor at Kelly’s request,” Emge wrote.
He rejected Kelly’s argument that Duebbert didn’t properly plead the absence of probable cause for the investigation.
He found Duebbert alleged that Enyart and Rodriguez submitted to Collins a false affidavit of Rodriguez.
He found Duebbert alleged that at the time the affidavit was made, all relevant parties including the prosecutors knew that averments in it were false.
He found Duebbert alleged that prosecutors charged him solely on the affidavit.
“Based on the foregoing, the court finds that plaintiff’s allegations do adequately allege the absence of probable cause as to his malicious prosecution count,” Emge wrote.
He found allegations about the affidavit also supported a claim of extreme and outrageous conduct on Kelly’s part.
He found Duebbert alleged that defendants concealed evidence that averments were embellished.
“He further alleges that this was all done in a scheme to ruin his career,” Emge wrote.
Turning to Collins and Crimm, he found they could be subject to liability if they initiated criminal proceedings by presenting false statements.
He found that was exactly what Duebbert alleged.
He rejected their claim that Duebbert didn’t plead the presence of malice, finding prosecution for an improper motive constitutes malice.
“An improper motive for a prosecution is any reason other than to bring the party to justice,” Emge wrote.
“Malice may be inferred from a lack of probable cause only where there is no credible evidence that refutes that inference.”
He also allowed a claim of outrageous and extreme conduct against Enyart to stand.
He rejected Enyart’s assertion of absolute privilege for conduct in litigation.
“Enyart’s duties as a ‘special victim advocate’ are unclear to the court based on what is before it, but the court is unaware of any authority that classifies a ‘special victim advocate’ as the victim’s attorney,” Emge wrote.
He immunized Robinson and Lamken-Finnell for their actions as prosecutors, and dismissed claims against them with prejudice.
He found they didn’t act beyond the scope of their authority at any time.
He didn’t find enough evidence of conspiracy but he gave Duebbert 30 days to amend his complaint.
Lawder responded by alleging various communications among defendants which discovery would detail in more particularity.
He claimed they all knew Rodriguez’s testimony was perjured and false.
He claimed Kelly acted in concert with known and unknown conspirators to accomplish an unlawful purpose by unlawful means.
He claimed defendants agreed to do all necessary actions including creation of false evidence to prosecute Duebbert and keep the conspiracy quiet.
He claimed that on numerous occasions before the appointment of Robinson and Lamken-Finnell, they met with Kelly to fulfill the agreement.
He claimed Kelly made statements to them with the intent of exerting influence to institute and continue the proceedings.
He claimed they coordinated the procurement and manufacture of perjured testimony, “by payment of money from unknown participants in the conspiracy.”
He claimed Collins, Crimm, and Enyart met with other defendants on numerous occasions to pursue the conspiracy.
Duebbert lost his job despite the dropping of the charges, because Gleeson’s complaint to the inquiry board resulted in his removal.