End of whistleblower proceeding on Jenny Thornley matter illustrates limited value of whistleblower law – Wirepoints

An Illinois appellate panel last week affirmed a trial court ruling dismissing Emily Fox’s whistleblower action in the Jenny Thornley saga that we’ve covered closely. The decision shows why whistleblower complaints, also called qui tam actions, are likely of little value in a state where prosecutors are politically aligned with politicians about whom the complaint is made.

For that reason, the decision also probably marks the end of any hope for exposition of the full story — in which corruption in the JB Pritzker administration was credibly alleged. Assuming no successful appeal to the Illinois Supreme Court, the story is now squelched.

Emily Fox, director of the Illinois State Police’s Merit Board, initially brought the complaint, alleging that Jenny Thornley, a former Pritzker campaign worker, defrauded the state through falsified timesheets and, later, through a fraudulent workers’ compensation that was allowed after alleged assistance from high-ranking officials in Pritzker’s administration.

However, Attorney General Kwame Raoul intervened in the case and had it dismissed before it could proceed to discovery or trial. The new appellate decision affirmed that dismissal. The appellate court’s decision is here and a further summary of the facts by Cook County Record is here.

The main issue addressed by the appellate court was how much discretion the state attorney general has to dismiss such cases, and that’s where the weakness of the remedy of whistleblower complaints lies.

The appellate court held that the state has “nearly unfettered discretion” to dismiss qui tam actions, citing multiple cases of precedent in Illinois and elsewhere. Only “glaring evidence of fraud or bad faith” by the state justifies overturning an attorney general’s decision not to pursue a whistleblower claim, the court said.

That’s not an unreasonable standard. Just this year, the United States Supreme Court ruled similarly on the federal government’s qui tam law that mirrors the Illinois law. Conservatives and liberals alike on the Supreme Court agreed eight to one that prosecutors have nearly unfettered discretion to dismiss the claims. Only Justice Thomas dissented, but he indicated he would likely have gone further and ruled the whole whistleblower statute unconstitutional as a wrongful intrusion on prosecutorial discretion.

Reasonable as that standard may be, it leaves an attorney general with vast discretion to dismiss complaints against his political allies. There’s the problem in Illinois. Pritzker’s campaign gave Raoul’s reelection effort $1 million last year and $3 million to his initial election in 2018.

The primary person to be upset with therefore is Raoul. An even-handed prosecutor would exercise his discretion to prosecute precisely because of the alleged complicity of Pritzker’s office.

For the Illinois appellate court, however, that allegation of a broader subtext of corruption in Fox’s complaint was a reason to dismiss it. According to the court,

Fox’s complaint is replete with accusations of corruption, political intrigue, and fraud at the highest levels of Illinois government—chiefly, allegations that Governor Pritzker and his wife tampered with investigations of Thornley, allowing her to enrich herself at the Illinois taxpayers’ expense. Indeed, the core of this appeal appears not to be Thornley’s conduct or the law regarding qui tam actions but a grand conspiracy to cover up the “truth,” as Fox put it in her objection to the State’s motion to dismiss. We decline Fox’s invitation to speculate and, instead, decide this case based solely on the evidence in the record and the applicable law. [Emphasis added.]

Oh, come on. This went far beyond an “invitation to speculate” from Fox. Her complaint detailed factual allegations, supported by documentary evidence, about when and how Pritzker’s office intervened to get the fraudulent worker’s comp claim paid and she never had a chance to do discovery.

Most of her allegations were corroborated in a separate lawsuit against Thornley by Jack Garcia, Thornley’s former boss at the Merit Board. Unfortunately, Thornley recently defaulted in answering that lawsuit so no further legal proceedings there will fully get to the facts.

For that reason, I believe the appellate court was wrong to affirm the dismissal despite the high level of discretion granted to Raoul’s office.

The Thornley story isn’t big by dollar terms, we said when we first wrote on it, but we asked what kind of political culture makes somebody like Thornley so confident that they can pull strings and bully themselves out of trouble as brazenly as Thornley is alleged to have attempted.

True to the way that culture works, the story has now been effectively buried.

*Mark Glennon is founder of Wirepoints.

The following earlier Wirepoints contain extensive further background and links to relevant documents:

• Pritzker said there should be accountability for worker’s comp fraud. Where is that for Jenny Thornley and Pritzker’s staff?
• Judgement entered against Jenny Thornley but still no action on alleged involvement of Pritzker’s office in fraudulent worker’s comp claim
• A.G. Kwame Raoul fights appeal of whistleblower lawsuit and further developments in Jenny Thornley matter
• Plaintiffs Step Up Fight For Cases To Be Heard in Jenny Thornley Scandal But Attorney General Kwame Raoul Still Covering It Up
• Pritzker’s response to the Jenny Thornley matter is either dishonest, derelict or both
• Deeper into the hole he dug goes Attorney General Kwame Raoul on the Jenny Thornley matter
• Questions Mount Over Pritzker Administration’s Involvement In Thornley’s Alleged Fraud
• Answers needed as Illinois’ Jenny Thornley affair continues