constitute evidence of continuing harassment rising to the level of a constitutional violation.
With respect to the Court's second reason for denying a continuing violation, Plaintiffs raise an interesting argument. Plaintiffs contend that Mr. Mitchell could reasonably fear retaliation because the Defendants have never concluded his SOL case. When a case, usually a criminal one, is stricken off call with leave to reinstate, it cannot be tried against until it is again placed on the docket. See People ex rel. DeVos v. Laurin, 73 Ill. App. 3d 219, 391 N.E.2d 164, 166, 29 Ill. Dec. 5 (Ill. App. Ct. 1979). The case is technically a pending case. Id. A court may, in its discretion, allow a subsequent motion to reinstate. Id.
Given the theoretical foundation for SOL cases, the Plaintiffs argue, the criminal case against Mitchell could be reinstated at any time, thereby constituting continued harassment. The Court's previous ruling, so the argument goes, was erroneous because it assumed that an SOL misdemeanor case, like Mitchells, could not be reinstated after the eighteen month limitations on prosecutions had run. That statute states that "prosecution for any offense . . . must be commenced . . . within one year and 6 months after its commission if it is a misdemeanor." 720 ILCS 5/3-5(b) (Smith-Hurd 1993). Plaintiffs contend that since a case dismissed SOL theoretically remains pending, a motion to reinstate that case is not the "commencement" of a prosecution.
Of the few courts that have addressed this issue recently all but one have assumed that an SOL case could not be reinstated after the limitations on prosecutions had run. See Dobiecki v. Palacios, 829 F. Supp. 229 (N.D. Ill. 1993); Bryant v. Whalen, 759 F. Supp. 410 (N.D. Ill. 1991) (adopting a magistrate judge's report and recommendation); People v. Triplett, 108 Ill. 2d 463, 485 N.E.2d 9, 92 Ill. Dec. 454 (Ill. 1985); People v. Reese, 121 Ill. App. 3d 977, 460 N.E.2d 446, 77 Ill. Dec. 390 (Ill. App. Ct. 1984). But see People v. East-West University, Inc., 637 N.E.2d 594, 1994 Ill. App. LEXIS 982, 1994 WL 279951 (Ill. App. Ct. 1994). In People v. East-West University, Inc., however, the Illinois Appellate Court for the first district stated that, under 720 ILCS 5/3-7(c) (Smith-Hurd), the time a criminal case is pending SOL must be excluded from the "period within which a prosecution must be commenced." This result is squarely supported by People v. Johnson, 363 Ill. 45, 1 N.E.2d 386 (Ill. 1935). The Court must there for strike that portion of its previous opinion finding that the state's prosecution would be time barred.
The Court need not strike, however, its conclusion that, as a matter of law, Mitchell could not reasonably fear prosecution. Even though SOL cases may, apparently, indefinitely toll the state statute of limitations, they do not indefinitely toll the state speedy trial act, 725 ILCS 5/103-5 (Smith-Hurd 1993). Under the Illinois Speedy Trial act, the prosecution has 160 days, with some exceptions, to trial a Defendant who demands a trial. Any prosecution attempt to reinstate a case dismissed SOL after the 160 day time period has run violates the act. See People v. East-West University, Inc., 637 N.E.2d 594, 1994 Ill. App. LEXIS 982, 1994 WL 279951 (Ill. App. Ct. 1994).
Plaintiffs argue that the speedy trial act does not bar their claims. The Court agrees. Plaintiffs assert that the act does not apply to them because Mr. Mitchell is not in custody, on bail, or on "recognizance", the only circumstances specifically noted in the statute. And, they argue that the act does not apply to bar their claim because Mr. Mitchell has not demanded a trial. The first of these arguments must be rejected. It is apparent that the State of Illinois intended to statutorily provide protection for each Defendant entitled to a trial under the United States Constitution. A Defendant not in custody or on bail during the pendency of a criminal action must therefore be on "recognizance."
The Court accepts, however, Plaintiffs assertion that Mr. Mitchell never demanded a trial and therefore never started the commencement of the one hundred and sixty days. This demonstrates that the speedy trial act does not prevent reinstitution of Mitchell's criminal action.
Plaintiffs are thus in the position of claiming that Mr. Mitchell's constitutional rights are continually being violated because the state has not dismissed its action against him with prejudice. Mitchell's fear of retaliation, on this basis, is neither reasonable, nor does it rise to the level of continued harassment. Mitchell's fear is not reasonable because there is no indication that he has any right to have the case permanently stricken and he has taken no action to preserve his right to a speedy trial. His argument is reduced to the assertion that neither he nor the state has taken any action on his state lawsuit and that, therefore, the state continually harasses him through its omission to act and that such harassment will continue indefinitely. In the opinion of the Court, Mitchell cannot reasonably fear "retaliation" that he could have prevented long ago by making a demand for trial. Moreover, and independently, it is the Court's opinion that Mitchell cannot show "continued harassment" by the State's failure to alter its long standing criminal court practice by specifically dismissing the criminal action permanently.
Accordingly, the Motion of plaintiffs for Amendment of Judgment is denied. Defendants motion for sanctions, on the basis of People v. East-West University, Inc., is denied. This is the final judgment in this case.
JOHN A. NORDBERG
United States District Judge
DATED: July 15, 1994