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Kane County judge dismisses ID theft case
By Josh Stockinger | Daily Herald Staff
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Published: 2/13/2010 12:00 AM

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A Kane County judge dismissed identity theft charges against an Aurora woman this week after her attorney argued the state statute under which she was charged is unconstitutional.

Claudia G. Madrigal, 33, had been accused of using her position at a Batavia insurance company to access another woman's personal information in January 2009.

Her attorney, however, contended Madrigal was just doing her job, analyzing risk after a woman who "turned out to be somebody she didn't get along with" inquired about insurance. He said the statute used to charge her was unconstitutionally broad, violated due process and "criminalized innocent conduct."

"It makes it a felony for somebody to seek information on anybody for pretty much any purpose," defense attorney Don Zuelke said.

On Thursday, Judge Allen M. Anderson sided with the defense in dismissing a Class 3 felony identity theft change punishable by up to five years in prison.

The prosecution declined to comment in detail, saying the case might not be a done deal.

"We are considering our options about how to proceed. One of those options might be to appeal," State's Attorney John Barsanti said.

The disputed statute outlaws the use of "personal identification information or personal identification document of another for the purpose of gaining access to any record of the actions taken, communications made or received, or other activities or transactions of that person, without the prior express permission of that person."

The law is so broad, Zuelke said, a person who uses the Internet to find someone's home address or public records to look up someone's age has committed a felony if the subject didn't first give permission. He noted that journalists do it all the time.

"It doesn't require any criminal intent," he said.

Zuelke said Madrigal felt like she had been "set up" after running the risk analysis on a common name that later turned out to be someone "who had animosity with her in the past." He said the insurance agency even conducted its own investigation and found she had done nothing wrong.

"This was a case that, in my opinion, should not have been charged," he said. "The information she got, she couldn't even do anything with it. It was about whether it was a good risk or a bad risk. There was no evidence of anything criminal."

Robert Jones, an assistant professor of law at Northern Illinois University in DeKalb, said judges, typically, try not to rule against state statutes, but do so in a "tiny fraction of the cases."

"There's an unwritten rule that judges will always try to find them (statutes) constitutional if they can," he said. "They're not supposed to strike them down if they can help it."

Jones added that he agreed the statute in question was "so broad" it was difficult to interpret. "They could have said malicious use of confidential information. It just says any use of any information regardless of how you got it or what you'll use it for."