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In Re Petition of Mcnulty

OPINION FILED MAY 18, 1978.

IN RE PETITION OF JILL MCNULTY ET AL. — (THE PEOPLE OF THE STATE OF ILLINOIS, OBJECTOR.)


APPEAL from the Circuit Court of Cook County; the Hon. JOHN P. McGURY, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Petitioner, Jill K. McNulty, filed a petition in the juvenile division of the circuit court of Cook County, seeking an award of fees and expenses for legal services performed by her and David S. Rudstein on behalf of the Honorable William S. White in a mandamus proceeding before the Illinois Supreme Court. The County of Cook appeals from an order granting petitioner $2,130 as fees and $228.02 as expenses, contending that petitioner was not properly appointed as a special state's attorney pursuant to section 6 of "An Act in regard to attorneys general and state's attorneys" (Ill. Rev. Stat. 1975, ch. 14, par. 6).

We affirm the order of the circuit court.

On August 13, 1976, the Honorable William S. White, presiding judge of the juvenile division of the circuit court of Cook County, entered certain orders directing jury trials to be granted in the delinquency proceedings pending against minors Glenn Young and David Morris.

The State's Attorney of Cook County was thereafter granted leave to petition the Illinois Supreme Court for a writ of mandamus pursuant to Supreme Court Rule 381 (Ill. Rev. Stat. 1975, ch. 110A, par. 381), ordering Judge White to expunge the orders granting jury trials in the delinquency proceedings. The supreme court granted leave to file the mandamus petition on August 25, 1976. Judge White appointed the petitioner and attorney David S. Rudstein to represent him in the mandamus proceeding.

On September 15, 1976, petitioner filed a motion in the supreme court for leave to appear, file briefs and argue on behalf of Judge White. The motion and attached affidavit indicated that Judge White desired to appear and be represented by counsel. Also attached to the motion was a letter from Donald O'Connell, administrative director of the circuit court of Cook County, advising the supreme court that petitioner had been appointed by Judge White pursuant to section 6 of "An Act in regard to attorneys general and state's attorneys" (Ill. Rev. Stat. 1975, ch. 14, par. 6), and that the appointment had been approved by Judge John S. Boyle, chief judge of the circuit court of Cook County.

Copies of this motion and attachments were served on the state's attorney. No objection having been made, the petitioner's motion was granted by the supreme court on September 20, 1976.

The petitioner and attorney Rudstein thereafter filed briefs and participated in oral argument in the mandamus proceeding. In People ex rel. Carey v. White (1976), 65 Ill.2d 193, 357 N.E.2d 512, the supreme court issued a peremptory writ of mandamus directing Judge White to vacate his orders granting jury trials in the pending delinquency proceedings and to conduct further proceedings in accordance with the views expressed by the court.

On December 1, 1976, petitioner filed a petition in the juvenile division of the circuit court alleging that she was entitled to $2,130 as fees and $228.02 in expenses for her representation of Judge White in the mandamus proceeding. The state's attorney filed a motion to dismiss the petition for fees objecting and asserting for the first time that the petitioner's appointment was improper. After a hearing, the circuit court entered an order directing that petitioner be allowed the requested fees and expenses. The payment of those fees and expenses has been stayed pending the outcome of this appeal.

It is contended that the trial court erred in awarding attorneys fees in this case because petitioner had not been properly appointed a special state's attorney pursuant to section 6 of "An act in regard to attorneys general and state's attorneys" (Ill. Rev. Stat. 1975, ch. 14, par. 6). Petitioner asserts that by failing to object to her participation in the mandamus proceedings on behalf of Judge White, the county has waived any objections to her appointment. In response, the county argues that the circuit court lacked subject matter jurisdiction to appoint petitioner as a special state's attorney for two reasons: (1) no petition was filed requesting the appointment and (2) the appointment was made by the circuit court instead of the supreme court in which the mandamus action was pending. If the circuit court lacked subject matter jurisdiction to act, no waiver of this issue can be asserted.

• 1-3 Section 6 of "An Act in regard to attorneys general and state's attorneys" (Ill. Rev. Stat. 1975, ch. 14, par. 6) provides:

"Whenever the attorney general or state's attorney is sick or absent, or unable to attend, or is interested in any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend, the court in which said cause or proceeding is pending may appoint some competent attorney to prosecute or defend such cause or proceeding, and the attorney so appointed shall have the same power and authority in relation to such cause or proceeding as the attorney general or state's attorney would have had if present and attending to the same * * *."

The appointment of a special state's attorney involves the exercise of judicial discretion in determining whether a contingency provided for by section 6 has arisen. (Lavin v. Board Commissioners of Cook County (1910), 245 Ill. 496, 92 N.E. 291; Hutchens v. Wade (1973), 13 Ill. App.3d 787, 300 N.E.2d 321.) The statute does not specify the procedure to be employed in order to bring the matter to the court's attention and invoke its jurisdiction. The filing of a petition by the state's attorney is one proper method of initiating the procedure. The court's jurisdiction may also be invoked upon the petition of a citizen (People v. Howarth (1953), 415 Ill. 499, 114 N.E.2d 785; People ex rel. Baughman v. Eaton (1974), 24 Ill. App.3d 833, 321 N.E.2d 531), or by the court upon its own motion (People ex rel. Hoyne v. Northup (1914), 184 Ill. App. 638). As stated in Hutchens v. Wade (1973), 13 Ill. App.3d 787, 790, 300 N.E.2d 321, 323, "for a meaningful exercise of judicial discretion, the court's attention must in some way be directed to the subject matter requiring a decision."

In this instance petitioner was appointed to represent Judge White in a mandamus action arising out of proceedings had before him. There can be no doubt that the judge was fully aware of the circumstances necessitating the appointment of a special state's attorney. Clearly the state's attorney could not have represented the interests of both the judge and the county in the mandamus proceeding. This is an ...


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