Appeal from the Circuit Court of Madison County; the Hon.
Howard Lee White, Judge, presiding.
PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
The State appeals an order of the trial court that dismissed two indictments of defendant charging official misconduct in violation of section 33-3(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 33-3(c)). At the time the indictments were returned, the defendant was the State's Attorney of Madison County. The indictments were returned by a special grand jury that had been convened upon the petition of a special prosecutor who had been appointed to conduct an investigation of defendant. We affirm.
Section 33-3(c) of the Criminal Code of 1961 provides:
"A public officer or employee commits misconduct when, in his official capacity, he commits any of the following acts:
(c) With intent to obtain a personal advantage for himself or another, he performs an act in excess of his lawful authority;
A public officer or employee convicted of violating any provision of this Section forfeits his office or employment. In addition, he commits a Class 3 felony."
The indictments were returned on April 18, 1984. One alleged that the defendant,
"a public official, State's Attorney of Madison County, while acting in his official capacity, with intent to obtain a personal advantage for himself; being beneficial, personal publicity, performed an act in excess of his lawful authority, in that he directed and ordered an Assistant State's Attorney of Madison County, KEITH JENSEN, to cause a Regular Grand Jury in session in Madison County, to return indictments prior to March 28, 1984, regardless of what any other investigative agency had to say, in order to obtain beneficial, personal publicity prior to the next scheduled meeting of the Special Grand Jury in session in Madison County investigating alleged criminal offenses or conduct of DON WEBER, State's Attorney of Madison County * * *."
The second indictment alleged that the defendant,
"a public official, State's Attorney of Madison County, while acting in his official capacity, with intent to obtain a personal advantage for himself; being a political gain during a primary election campaign, performed an act in excess of his lawful authority, in that he directed and ordered an Assistant State's Attorney of Madison County, KEITH JENSEN, to cause a Regular Grand Jury in session in Madison County to return indictments on March 14, 1984, because the primary election was on Tuesday, March 20, 1984, and he, DON WEBER, needed the good publicity before the primary, in which DON WEBER was a candidate for re-election as State's Attorney of Madison County * * *."
Following the return of the indictments, defendant filed a motion to dismiss as to each for the reason that neither stated an offense. In a well-reasoned memorandum opinion and order, the trial court granted the motions to dismiss as to both indictments, and the State appealed.
It should be noted that in charging official misconduct, the indictments do not allege that in the performance of his duty the defendant violated any other statute, supreme court rule, administrative rule or regulation, or tenet of the Code of Professional Responsibility (87 Ill.2d R. 1-101 et seq.). Nor do the indictments make any reference to the person defendant directed his assistant to have indicted, what offense was involved, or whether the defendant sought to have indictments obtained in the absence of probable cause. Neither the indictments nor the record discloses whether the indictments defendant directed were in fact returned by the regular grand jury or what disposition resulted from any such indictments. Further, there is no indication as to whether a complaining witness was to be used before the regular grand jury or who the complaining witness might have been. In sum, and as the State acknowledged in oral argument, the gravamen of the offenses charged in the indictments is that defendant had an improper motive for seeking the indictment of the unnamed person, and the offense of official misconduct was committed when the directions were given by defendant to his assistant for the allegedly self-serving purposes described in the indictments.
• 1 Both parties rely on People v. Samel (1983), 115 Ill. App.3d 905, 451 N.E.2d 892, a case in which the court addressed itself to the requirements for a charge under subsection (c). We agree that the Samel case is well reasoned and find it persuasive in our disposition here. In Samel a police officer was charged with official misconduct for his use of the data system of a law enforcement agency in order to discover names and addresses of owners of vehicles to facilitate burglaries of premises of owners. The court declared that the purpose of the official misconduct statute is to "compel public officials and employees, while acting in their official capacity, to do so in a lawful manner." (115 Ill. App.3d 905, 910-11, 451 N.E.2d 892, 896.) It held that charges based on subsection (c) could be based upon a knowing violation of a civil or penal statute, a supreme court rule, or a properly promulgated rule or regulation of an administrative body notwithstanding the absence of a penalty clause from such enactments.
The State concedes that no violation of a statute, rule, regulation, or tenet was alleged in the indictments, for there was no such violation. It is their contention, however, that the indictments are sufficient because they "allege personal enrichment in that Defendant specifically stated his need to obtain favorable publicity for the forthcoming election in which he was a candidate. The personal enrichment is favorable publicity and the exceeding his lawful authority committed by Defendant was the seeking of indictments not on the bases of evidence or the status of the grand jury investigation, but for a need for ...