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Mcdonald v. County Board





Appeal from the Circuit Court of Kendall County; the Hon. John L. Nickles, Judge, presiding.


Rehearing denied October 6, 1986.

This appeal is taken by the sheriff of Kendall County, Charles McDonald, from the decision of the circuit court of Kendall County granting the Kendall County board's motion to dismiss based upon appellant's failure to state a cause of action in his complaint for declaratory judgment. The facts are not in dispute.

At the time McDonald took office there was in place an agreement between his predecessor and the State's Attorney, Dallas Ingemunson, regarding the duties of three deputies from the sheriff's department. In essence the agreement provided for the three deputies to work for the State's Attorney's office as criminal investigators, while remaining on the sheriff's payroll. McDonald's attempts to supervise or otherwise control these deputies were unsuccessful until, in November 1984, both McDonald and Ingemunson were sued in their official capacities for alleged improper supervision of one of these three deputies who participated in a raid of a pornographic bookstore in Kendall County. On January 8, 1985, McDonald acted to order those three deputies assigned to the State's Attorney's office to be returned to the sheriff's department and to be placed under the supervision of that department.

Also in November 1984, the Kendall County board adopted its 1984-85 budget for the fiscal year beginning December 1, 1984. Included in the budget was a $99,500 item for "Investigations." The precise itemization of these monies for investigatory purposes was submitted to both Sheriff McDonald and State's Attorney Ingemunson for their signed approval. From December 1, 1984, to February 1, 1985, all claims made against this budget for investigations were jointly endorsed by McDonald and Ingemunson.

Owing to the apparent discord between these two parties regarding the status of the affected deputies, a special meeting of the tax and finance committee of the Kendall County board was held January 15, 1985, and a vote taken as to the future disposition of the monies in the "Investigations" fund. At that meeting it was decided that the money in the fund would essentially be divided equally between the offices of the sheriff and State's Attorney. Sheriff McDonald contends that such an action has resulted in the loss of two full-time deputy sheriffs from his department.

Sheriff McDonald thereupon filed suit in the circuit court of Kendall County. In his complaint, McDonald asked for a declaration of the rights of the sheriff's department with respect to the money from the "investigations" budget item that was designated for the State's Attorney's operations. On July 17, 1985, the circuit court ruled that this complaint failed to state a cause of action. An order was issued August 1, 1986, allowing plaintiff leave to amend his complaint. At the same time the circuit court denied McDonald's motion seeking appointment of a special State's Attorney. Subsequently, plaintiff's first amended complaint was dismissed for again failing to state a cause of action. Appointment of a special State's Attorney was sought for the second time and was denied. It is from these actions of the circuit court that plaintiff appeals.

It is the plaintiff's position that the January 15, 1985, decision of the Kendall County board constitutes an unlawful attempt by the board to control the internal operations of the sheriff's office through the impermissible firing and hiring of sheriff's personnel. Further, plaintiff seeks reversal of the circuit court's refusal to appoint a special State's Attorney to represent the interests of the sheriff's department.

• 1 By filing suit for a declaratory judgment, one does not obviate the need for setting forth sufficient facts as will establish a cause of action. A declaratory judgment action is strictly procedural in itself and does not serve to create any new substantive rights (Berk v. County of Will (1966), 34 Ill.2d 588, 591; La Salle Casualty Co. v. Lobono (1970), 93 Ill. App.2d 114, 117.) What is relevant for an actionable controversy is not the interest a party assumes in his pleadings, but rather his interests as defined by the law. (Underground Contractors Association v. City of Chicago (1977), 66 Ill.2d 371, 376.) This is not to say plaintiff must plead his entire cause in his complaint. Such facts as set forth in the complaint need only allege appropriate grounds for a declaration of rights. (Partney v. Dallas (1969), 111 Ill. App.2d 261, 265.) However, it is still necessary to allege facts that, if proved, would entitle petitioner to relief. What plaintiff must be able to show here is that those facts alleged do establish an unwarranted interference at law in the affairs of the sheriff's department.

Plaintiff cites certain authority for the principle that a county board cannot lawfully control the hiring, firing, promotion, or compensation of sheriff's employees. (See Kotche v. County Board (1980), 87 Ill. App.3d 1127, 1131 (beyond statutory and budgetary power of the county board to require county clerk to seek board approval for pay raise of employee or reclassification of several other employees of clerk's office); Heller v. County Board (1979), 71 Ill. App.3d 31, 38 (held that county board could not hire employees in the office of the supervisor of assessments nor could it adopt organizational charts and job classifications which divest the supervisor of assessments of his statutory responsibilities for control of internal operations).) But the action of the Kendall County board does not parallel those taken in the Kotche and Heller cases. Rather than an improper internal interference with the sheriff's authority, the board appears to have acted to avoid such an eventuality. The board moved to maintain the status quo in regard to the service being funded with county monies but to eliminate the departmental friction accompanying the necessary investigative work of the State's Attorney's office.

The crux of plaintiff's argument is based on the assertion that the duties attendant to investigating criminal incidents are under the exclusive control of the sheriff. Plaintiff points out that by statute:

"No county board may alter the duties, powers and functions of county officers that are specifically imposed by law. A county board may alter any other duties, powers or functions or impose additional duties, powers and functions upon county officers." (Ill. Rev. Stat. 1985, ch. 34, par. 429.18.)

However, the only basis plaintiff relies upon to establish the duty of investigation "specifically imposed by law" is that portion of the statutory power of the sheriff's office granting the sheriff exclusive control of the "internal operations" of that department. (Ill. Rev. Stat. 1985, ch. 125, par. 14(a).)

• 2 In fact, there is authority to the contrary to the effect that the State's Attorney is charged with an affirmative duty to investigate. It has been held that the duties of the State's Attorney require an investigation into the facts of an incident. (People v. Pohl (1964), 47 Ill. App.2d 232, 242; see also Ware v. Carey (1979), 75 Ill. App.3d 906, 914 (citing Pohl and additionally holding duty to evaluate evidence and other pertinent factors to determine the offense).) The creation of an "investigations" item in the county budget and an equal assignment of those funds to the State's Attorney's and sheriff's budgets is not an infringement on any exclusive prerogatives of the sheriff. The sole reliance upon the power to "control ...

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