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AG Madigan files blistering motion against Rutherford accuser

Tuesday, Aug 19, 2014

* AP

Illinois Attorney General Lisa Madigan wants portions of a lawsuit filed against Treasurer Dan Rutherford’s office dropped, and a court to sanction the former staff lawyer who filed it.

Madigan’s office asked a federal court on Monday to dismiss claims by Edmund Michalowski against two treasurer’s office employees and the Republican state treasurer’s office. Michalowski said the employees were involved in racketeering and retaliated against him for refusing to do political work. He also said Rutherford sexually harassed him.

Madigan calls the racketeering changes “baseless,” and said the harassment allegations involving the office weren’t “sufficiently severe or pervasive.”

* But the motion she filed goes way beyond that. For example, Michalowski apparently made some overblown allegations about Rutherford chief of staff Kyle Ham

Michalowski alleges that Ham told him that Rutherford required Treasurer Office employees to make ―donations to non-office government functions that would benefit the Rutherford and Romney campaigns. Michalowski says he gave the demanded cash to Ham at the Treasurer‘s Office in Chicago. Although for this motion the Court must accept this allegation as true, Michalowski notably does not identify the so-called ―non-office government functions‖ (staff holiday party) or say how much he paid ($50).

Who sues over a staff holiday party?

* And this

Michalowski next alleges that on July 24, 2011, Conrad sent him a text saying that the Treasurer wanted him to wear a tank top. Michalowski omits the rest of the text exchange, including his own joking comments.

Oops.

* More on the sexual harassment allegations

Michalowski‘s Title VII claim should be dismissed because he does not allege conduct that created an objectively hostile working environment under controlling precedent. For conduct to create a hostile work environment, it must be both subjectively and objectively offensive and “sufficiently severe or pervasive to alter the conditions of [the victim‘s] employment and create an abusive working environment.” […]

The Seventh Circuit has repeatedly held that conduct that was more severe than what Michalowski alleges here did not rise to the level of objective harassment as a matter of law. […]

Where courts have allowed hostile work environment cases to proceed, the alleged misconduct was substantially more severe and pervasive that what Michalowski alleges here, and usually involved incidents of unwanted touching. […]

Although the April 2011 incident allegedly involved grabbing “at” Michalowski‘s “genital area,” Michalowski does not allege that the Treasurer touched him. And even if the Treasurer‘s later alleged invitations to his home and hotel room and shoulder rub were unwanted, Michalowski does not allege that the Treasurer made any explicit sexual comments or requested any sexual activity.Taken as a whole, these sporadic incidents were not sufficiently pervasive or severe to constitute objective harassment as a matter of law.

* Regarding the RICO claim

Michalowski does not come close to alleging facts needed to establish necessary elements for a RICO claim, including: (a) actual RICO predicate acts; (b) how each defendant engaged in a pattern of racketing activity; (c) how each defendant operated the Treasurer‘s Office through a pattern of racketeering; (d) an agreement by each defendant to facilitate the completion of a RICO violation; and (e) an injury to Michalowski‘s “business or property” that was proximately caused by a RICO violation.

* 1st Amendment claim

Michalowski‘s First Amendment claim fails at the outset because, as a policymaking employee, the First Amendment does not protect his alleged lack of political support for Treasurer Rutherford. The right of public employees to associate (or not associate) politically may be legitimately constrained if the employee is in a policymaking position, has access to confidential information, or otherwise enjoys a position where political loyalty may be expected. […]

Even if Michalowski has alleged some conduct that is protected by the First Amendment, he still does not have a valid political discrimination claim against Ham or Conrad because he does not allege that Ham or Conrad took any action that was motivated to deter him from engaging in protected activity.

* And she states there was no “hit list”

Michalowski‘s hit-list allegation also does not qualify as actionable retaliation. Michalowski alleges that Rutherford and Ham (not Conrad) supposedly created a hit list of employees who would be fired for their lack of political support, but he does not allege that Rutherford and Ham created this supposed list to deter any First Amendment activity, that the list hindered his job performance or deterred him from engaging in protected conduct, or that he or anyone else was actually fired because of their lack of political support.

Even assuming that there was such a list (there was not), nothing in the law prevents the Treasurer and his chief of staff from creating a list of employees who might be terminated.

There’s lots more, so go read the whole thing.

- Posted by Rich Miller        


28 Comments
  1. - David P. Graf - Tuesday, Aug 19, 14 @ 2:48 pm:

    Is the Attorney General required to defend the state against this lawsuit? Pardon my ignorance but I would appreciate it if someone more knowledgeable could enlighten me. Thanks!


  2. - Nearly Normal - Tuesday, Aug 19, 14 @ 2:54 pm:

    “The duties of the Attorney General shall be –

    First - To appear for and represent the people of the State before the supreme court in all cases in which the State or the people
    of the State are interested.
    Second - To institute and prosecute all actions and proceedings in favor of or for the use of the State, which may be necessary in
    the execution of the duties of any State officer.

    Third - To defend all actions and proceedings against any State officer, in his official capacity, in any of the courts of this State or
    the United States…”

    foia.ilattorneygeneral.net/pdf/OAG_Brief_Description.pdf


  3. - Formerly Known As... - Tuesday, Aug 19, 14 @ 3:02 pm:

    She should e suing to have him release that “mystery report” he vowed to make public when it exonerated him.

    I wonder why the Treasurer suddenly clammed up and stashed it away somewhere?


  4. - Winning with Sheen - Tuesday, Aug 19, 14 @ 3:14 pm:

    Hahahaha….. Rutherford should be Governor.


  5. - Downstate GOP Faithless - Tuesday, Aug 19, 14 @ 3:27 pm:

    Internally staff referred to the party as the “Holiday Party Shakedown.” Apparently one year it went to essentially funding a Romney watch party during the Iowa Caucus. According to a friend who works there, last year in Chicago it was $50/person to eat Mexican in the office…curious if Bayless was brought in to prepare it. Apparently if you didn’t pay you were called by the Deputy COS, and “reminded” you owed


  6. - Responsa - Tuesday, Aug 19, 14 @ 3:36 pm:

    It seems to me that is a very serious and spirited legal defense that Lisa prepared. The request for sanctions, especially. It’s interesting to read because when the weird optics and a lot of the politics are stripped out the case does look quite a bit different, doesn’t it.


  7. - Formerly Known As... - Tuesday, Aug 19, 14 @ 3:49 pm:

    == Hahahaha… ==

    Well, if he simply released the report that he swore was going to “exonerate” him, he could have had a shot.

    You don’t think that investigation turned something up, do you? Nah. Couldn’t be.


  8. - Percival - Tuesday, Aug 19, 14 @ 4:06 pm:

    The most revealing new fact is that the employee filed before getting the required notice from the EEOC that administrative proceedings had ended. It is basic federal law that no claim under Title VII can be filed until that notice is issued, and every lawyer knows that basic federal law, but this salacious claim was filed early. It just shows that this was a political attack for the GOP Primary dressed up as a lawsuit.


  9. - Lisaspeaks - Tuesday, Aug 19, 14 @ 4:19 pm:

    So Rutherford found a friend…


  10. - chad - Tuesday, Aug 19, 14 @ 4:23 pm:

    Lisa Madigan’s motion to dismiss seems pretty strong. Would be interesting to read the memorandum supporting sanctions, as that is where some harsh arguments are liekly to appear. If this case is dismissed with financial sanctions (meaning the claim had no merit, and is “frivolous”), the action will warn politicos who attack candidates in court during the course of a campaign that they still need to have their facts and law together when filing serious cases in Federal Court — like RICO. There is just a tendency to jump too quickly during campaigns, and maybe that happened here. But this was not a ballot access challenge — this was seriously messing with people’s futures.

    There is just something about Michalowski’s approach that is too absolute and too certain. Seems like he is trying to criminalize the hurly-burly of the political and campaign world like the sadly misguided prosecuter in Austin. You get the understanding that this man understood what he was doing, benefitted from the proxmity to a potential governorship, and snapped at his promoter when he sensed a need to bail-out.

    There are those who get a kick out of having seen Rutherford take a fall here, and perhaps the action of bringing in the former FBI agent was over-the-top. It would be unexpected to give an FBI agent complete access to an entire constitutional office and not have him discover at least something amiss. So Rutherford made the right political move in holding-back that report. No need to give his naysayers another thing to crow about by revealing that someone threw a few spitballs.


  11. - walker - Tuesday, Aug 19, 14 @ 4:24 pm:

    First impressions:

    The language is strong, and defense aggressive, but that seems to be covering up some weakness in her arguments about Title VII.

    If what she claims the case law has established about Title VII is true, then the defendants’ (employers’) bar has certainly undermined the whole original intent of the law over time. The sexual harassment claims would have been a near slam dunk thirty years ago.


  12. - Al Grosboll - Tuesday, Aug 19, 14 @ 4:32 pm:

    Rich, this entire legal action and the allegations have been questionable from the beginning. I suspect when the dust settles, the case will go nowhere and the allegations will be viewed as a cheap effort to extort money.

    We have seen this type of episode play out before. Salacious allegations are made and they are just too juicy for the headline writers to ignore. After the case disappears, reporters and editors will acknowledge that maybe the allegations could have been handled with smaller headlines and greater fairness toward the accused.

    Even before this story broke, I didn’t believe Dan Rutherford was going to win the primary. But that is not the point; Dan Rutherford did not have the chance to make his case with the voters because of this story and the headlines. If this case disappears as I suspect it will, it will certainly underscore the unfairness of how sexual allegations are treated, particularly when the accuser alleges gay advances.

    Regardless of how people feel about Dan Rutherford’s politics or public service, I don’t believe this is how a public official should be treated. Let them rise or fall on their deeds and record, not on weak law suits and sleazy allegations.


  13. - chad - Tuesday, Aug 19, 14 @ 4:43 pm:

    Well said Al. In addition, there was a tendency for some in the media to use the filing of the lawsuit as a way to bring up — somewhat indirectly — the issue of sexual orientation. None of the candidates had raised that issue, so the way it was played by some was disappointing.


  14. - admin - Tuesday, Aug 19, 14 @ 4:47 pm:

    Al is right. If they have any sense of fairness left, the media attack dogs should start preparing their mea culpas and Rutherford should look into his legal options against Michaelowski and…whomever put him up to this.


  15. - Al Grosboll - Tuesday, Aug 19, 14 @ 4:53 pm:

    We should also acknowledge the Attorney General’s office in their handling of this case. Even though the players are in different political parties, the Attorney General has played fair and not hesitated to call this case for what it is. The brief is strong, refreshingly direct and convincing. Kudos to Attorney General Madigan and her staff.


  16. - Formerly Known As... - Tuesday, Aug 19, 14 @ 5:03 pm:

    == not have him discover at least something amiss ==

    Something amiss like a few boxes of missing paperclips? Or something(s) directly relating to these allegations?

    Something(s) so amiss that you would rather sit on the report and sacrifice your shot at being governor?

    Something(s) so amiss that you suddenly cancel your “exoneration” press conference within hours of receiving the report?

    That must be quite a something. Or somethings.


  17. - Formerly Known As... - Tuesday, Aug 19, 14 @ 5:04 pm:

    Speaking of which, when will the Attorney General be deciding on whether or not that report must be released?


  18. - Formerly Known As... - Tuesday, Aug 19, 14 @ 5:16 pm:

    Not that there would be any conflict of interest there.


  19. - chad - Tuesday, Aug 19, 14 @ 5:45 pm:

    My recollection is that Rutherford’s polls had collapsed by the time he might have released the results. Releasing a clean report at that moment would have only encouraged additional questions outside the scope of the investigation. There would have been no effective exoneration, and was no candidacy left to save. Releasing a report revealing “missing paperclips” would have been cause for additional riddicule at a time when his candidacy had already effectively ended.

    If serious matters are involved, those will unavoidably come out. In that case I expect he will have already passed it to the authorities.

    The AG would only be a legal advisor, and only then if asked by the Treasurer. She has no authority to order a release.


  20. - CampfireGirl - Tuesday, Aug 19, 14 @ 5:57 pm:

    So what is AG Madigan trying to say ? - that Dan Rutherford’s political career died for nothing ? wow.


  21. - Formerly Known As... - Tuesday, Aug 19, 14 @ 6:49 pm:

    == She has no authority to order a release ==

    She does if an enterprising journalist files a FOIA request for that report, the Treasurer’s office declines to release the report, and that journalist then appeals to the AG’s PAC.

    Which one assumes has likely happened by now.


  22. - Rich Miller - Tuesday, Aug 19, 14 @ 8:01 pm:

    ===She does if an enterprising journalist files a FOIA request for that report===

    FOIA doesn’t negate attorney client privilege.


  23. - David P. Graf - Tuesday, Aug 19, 14 @ 9:45 pm:

    Nearly Normal - thanks for taking the time to answer my question.


  24. - VanillaMan - Wednesday, Aug 20, 14 @ 7:45 am:

    Dan Rutherford was ripe for this kind of allegation. He did not take precaution to ensure that allegations of this type would have been easily dismissed. There have been numerous rumors regarding Mr. Rutherford and he and his advisors should not have ignored preparing a defense when these rumors began circulating again.

    Sexual misconduct allegations find their way of sticking upon certain individuals in public office. These are the same people who have reached these public offices cultivating and selling a personal image. Candidates for public office are often excruciatingly aware of how they are perceived by others. In their drive to succeed in politics, they prune themselves in how they are seen by voters.

    So for someone in a statewide elected office and a leading contender for a gubernatorial nomination, I find it very surprising that Mr. Dan Rutherford would be surprised. He shouldn’t have been. We repeatedly seen single male middle aged candidates, throughout history, being questioned regarding their sexual lives. Just as we question the number of notches which appear upon the bed post of a Kennedy, or of Bill Clinton, any public official needs to be prepared for sexual innuendoes and character attacks.

    Yet somehow, Mr. Rutherford appears to have conducted himself in a way which fails to take this part of public life seriously. He is either an amazingly trusting and naïve gentleman in a world of cutthroat Illinois politics - or he couldn’t have an honest conversation with his inner circle of supporters.

    So when these charged aired, Mr. Rutherford did not have the ability to defend himself in a way that dispersed these politically lethal revelations. Mr. Rutherford did not room each night with a parent. He did not have strict conditions placed upon those who spend time with him in private. Dan did not have a staffer who could have countered these sexual allegations in a seemingly non-biased way to clear Mr. Rutherford’s name.

    Sorry Dan, but this is how the game is played. I have heard rumors about every public official and those public officials have taken precautions and steps to defuse them. You did not. You left yourself open.

    So when the charges were filed, they fit too well with the rumors. While the facts are debated in your favor, voters aware of the innuendoes were forced to take another look at you as a statewide public official and chose to not support you.


  25. - Befuddled - Wednesday, Aug 20, 14 @ 7:47 am:

    If these accusations prove to be without merit, and it is proven that the accuser’s motive was to get a cash settlement, then the accuser should face immense penalties.

    Reputations take a long time to build up, and to have one torn down through baseless claims would be a tragedy. IF that’s what happened. If not, let the chips fall where they may.


  26. - A guy - Wednesday, Aug 20, 14 @ 8:02 am:

    Could be the start of a rebirth of his career in goverment. More careful going forward. Interesting. Hope things work out for him.


  27. - Anon - Friday, Aug 22, 14 @ 12:58 pm:


  28. - Anon - Friday, Aug 22, 14 @ 12:58 pm:

    https://www.youtube.com/watch?v=gdGAdtnjKco


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