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01/25/88 Daniel M. Kirwan, v. John M. Karns Et Al.

January 25, 1988

DANIEL M. KIRWAN, PETITIONER

v.

JOHN M. KARNS ET AL., RESPONDENTS



SUPREME COURT OF ILLINOIS

519 N.E.2d 465, 119 Ill. 2d 431, 116 Ill. Dec. 573 1988.IL.67

Original proceeding for mandamus.

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

On remand the circuit court considered the petition of the minor's parents on its merits and denied the relief prayed. The Christian County public defender had represented the minor in this proceeding as a guardian ad litem. Following the circuit court's denial of the petition, the Christian County public defender, as guardian ad litem for the minor, filed a notice of appeal. The circuit court appointed the office of the State Appellate Defender for the fifth judicial district to represent the minor on appeal. The Appellate Defender moved to withdraw as counsel for the minor on appeal, alleging that section 10 of the State Appellate Defender Act (Ill. Rev. Stat. 1985, ch. 38, par. 208-10(a)) provides that the State Appellate Defender shall represent persons only in criminal cases, and that a proceeding determining wardship of a minor is civil in nature. The State objected to the motion to withdraw and the appellate court denied it.

The State Appellate Defender filed a motion in this court for leave to file a petition for a writ of mandamus, or alternatively, for a supervisory order. We granted leave to file the petition.

It is the petitioner's (State Appellate Defender's) position in this court, as it was in the appellate court, that the circuit court had no authority to appoint the petitioner to represent the minor in this proceeding, because the proceedings are civil in nature and the State Appellate Defender is, by statute, only authorized to represent indigents on criminal appeals. Section 10(a) of the State Appellate Defender Act provides:

"§ 10. Powers and duties of State Appellate Defender. (a) The State Appellate Defender shall represent indigent persons on appeal in criminal cases other than misdemeanor cases not involving a sentence of imprisonment . . .." Ill. Rev. Stat. 1985, ch. 38, par. 208-10(a).

In Maloney v. Bower (1986), 113 Ill. 2d 473, this court considered the authority of the circuit court to appoint a public defender to represent indigent defendants in civil contempt proceedings in which the defendant might be subject to incarceration. Section 4 of the Public Defender Act (Ill. Rev. Stat. 1985, ch. 34, par. 5604) provided:

"The Public Defender, as directed by the court, shall act as attorney, without fee, . . . for all persons who are held in custody or who are charged with the commission of any criminal offense, and who the court finds are unable to employ counsel."

In Bower, this court held:

"The statutory meaning is clear. The plain language of section 4 shows that the intent of the legislature, in creating the office of the public defender, was to limit the duties of the public defender to representing indigent persons 'held in custody or who are charged with the commission of any criminal offense.' Courts, when acting under the Public Defender Act, can make appointments only as the Act provides." 113 Ill. 2d at 479.

Following the holding in Bower, we likewise hold that the State Appellate Defender may be appointed to represent indigents on appeal only as the Act provides. Thus, the court may only appoint the State Appellate Defender to "represent indigent persons on appeal in criminal cases other than misdemeanor cases not involving a sentence of imprisonment." (Ill. Rev. Stat. 1985, ch. 38, par. 208-10(a).) This is in accord with the rationale of Tedder v. Fairman (1981), 93 Ill. App. 3d 948, 955, rev'd in part on other grounds (1982), 92 Ill. 2d 216, where the appellate court held that "[t]he mandate to the State Appellate Defender to represent indigents 'on appeal in criminal cases' (Ill. Rev. Stat. 1979, ...


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