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In re Appointment of A Special State's Attorney

June 16, 1999

IN RE APPOINTMENT OF A SPECIAL STATE'S ATTORNEY (GAYLE M. FRANZEN, PETITIONER, V. JOSEPH E. BIRKETT AS STATE'S ATTORNEY OF THE COUNTY OF DU PAGE, RESPONDENT; AND THE COUNTY BOARD OF THE COUNTY OF DU PAGE, RESPONDENT-APPELLEE; WILLIAM J. MAIO, JR., PETITIONER-APPELLEE; WILLIAM E. JEGEN, RESPONDENT-APPELLANT).


Appeal from the Circuit Court of Du Page County. No. 97--MR--47 Honorable Ronald L. Pirrello, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp

IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

Respondent William E. Jegen (Jegen or respondent) appeals Judge Ronald L. Pirrello's order terminating his appointment as a special State's Attorney. Jegen argues on appeal that (1) petitioner William J. Maio, Jr., lacked standing to bring a petition to terminate Jegen as a special State's Attorney; (2) Judge Pirrello lacked jurisdiction to terminate Jegen's appointment; (3) the order entered by Judge Pirrello was void because it was entered in Winnebago County rather than Du Page County; and (4) the order violates principles of separation of powers. We affirm.

This matter arose out of state criminal prosecutions and federal civil rights actions against seven Du Page County officials (the Du Page 7) charged with misconduct in the prosecution of Rolando Cruz, Alejandro Hernandez, and Stephen Buckley.

Attorneys for some of the criminal defendants made a demand upon Du Page County State's Attorney Joseph E. Birkett and Du Page County Board Chairman Gail M. Franzen to defend the criminal cases at taxpayers' expense. On January 28, 1997, Franzen commenced this action as a private citizen by filing a petition for appointment of a special State's Attorney pursuant to section 3--9008 of the Counties Code (55 ILCS 5/3--9008 (West 1996)). Franzen's petition was signed by Jegen as an attorney and sought the appointment of a special State's Attorney to represent the Du Page County Board for the purpose of giving legal advice and representing the County Board in causes and proceedings relative to whether it should pay for the criminal defense of the Du Page 7. The petition alleged, inter alia, that State's Attorney Birkett had a potential conflict of interest because he was defending individual members of the Du Page 7 in the federal civil rights cases.

The chief Judge of the Eighteenth Judicial Circuit requested that the case be assigned to a Judge from another circuit. On January 30, 1997, the supreme court assigned Judge Pirrello of the Seventeenth Judicial Circuit, Winnebago County, to hear the case in the Eighteenth Judicial Circuit, Du Page County.

On April 3, 1997, Judge Pirrello found that State's Attorney Birkett had conflicts of interest in representing both the County Board and the individual defendants in the federal lawsuits. By separate order entered that same day, Judge Pirrello appointed Jegen as a special State's Attorney as follows:

"1. William E. Jegen is hereby appointed as counsel to advise the DuPage County Board regarding the responsibilities and obligations of the Board as to the appointment of Special State's Attorney to defend the current and former County and State officials *** and to take appropriate action on such matters as determined and directed by the Board."

"2. Pursuant to this appointment, counsel is granted that limited authority under 55 ILCS 5/3-9005 which is necessary to effectuate those duties as set out in paragraph 1 of this Order."

"3. This authority granted to counsel pursuant to this Order shall not include any other duties specifically given the State[']s Attorney under the law nor in any way limit or impinge upon the regular duties of State's Attorney Birkett."

"4. The appointment pursuant to this Order shall commence as of January 28, 1997 and shall terminate upon the counsel's completion of the duties as specified in paragraph 1 as well as the Court's resolution of such matters."

"5. Counsel appointed pursuant to this agreed order shall be compensated pursuant to provisions of 55 ILCS 5/3-9008 and as ordered by this Court."

"6. Nothing herein is to be construed as an admission of any of the parties as to any matter raised or alleged in the pleadings before the Court." (Emphasis added.)

On April 8, 1997, the County Board adopted Resolution CB--0023--97, stating that it objected to advancing any criminal defense fees for the Du Page 7. The resolution directed Jegen to appear in the state criminal proceedings and object to the petitions filed in those proceedings that sought to have counsel for the Du Page 7 appointed as special State's Attorneys.

Judge William A. Kelly presided over the criminal prosecutions. On April 9, 1997, Jegen appeared at a hearing before Judge Kelly to object to the appointment of special State's Attorneys to defend the Du Page 7. Judge Kelly denied the petitions for appointment of special State's Attorneys but urged the County Board to revisit the question of whether criminal defense fees should be advanced.

The next hearing before Judge Kelly on the criminal defense fee issue was held June 9, 1997. Judge Kelly expanded upon the comments he had made at the April 9 hearing. Judge Kelly stated he did not believe that the Du Page 7 themselves had the right to appointment of counsel at the County's expense. However, Judge Kelly stated that, if the County Board determined that it was in the best interests of the County to have counsel appointed to represent the Du Page 7 because of federal civil rights liability that might result from criminal convictions, then he would appoint counsel.

Judge David Coar presides over the federal civil rights cases. On June 20, 1997, Judge Coar entered an order denying the motion of Franzen, individually and as Chairman of the Du Page County Board, to disqualify State's Attorney Birkett and all of his assistants from representing both Du Page County and the Du Page 7 in the federal cases. Franzen asserted that State's Attorney Birkett had a conflict of interest because it would be in the best interests of the individual defendants to prove that their conduct was in the scope of their employment so that their liability, if any, could be passed on to the County. Du Page County, on the other hand, had an interest in proving that the individual defendants were acting outside the scope of employment in order to avoid the imposition of liability on the County. Judge Coar denied Franzen's motion because there was no evidence that the Du Page 7 were acting outside the scope of their employment within the meaning of civil rights law.

On October 10, 1997, the County Board held a meeting at which it discussed adopting Resolution CB--0058--97. Resolution CB--0058--97 requested that the criminal trial Judge "determine whether the county has the authority to pay the criminal defense fees prior to the determination of guilt" and that the court "determine whether it is in the best interests of the County and its taxpayers to pay the criminal defense fees at this time." This resolution was adopted by the County Board on October 14, 1997.

The minutes of the October 10, 1997, County Board meeting, at which Jegen was present, indicate that the resolution was agreed upon by Board members, State's Attorney Birkett, and Jegen. It was the understanding of the County Board that Jegen had agreed to present the resolution at a hearing before Judge Kelly without taking any position on the criminal defense fee issue.

On October 20, 1997, the criminal defendants presented a renewed petition for appointment of special State's Attorneys to Judge Kelly in the criminal case. Jegen appeared for the purpose of objecting to the petition by challenging notice. Judge Kelly generally continued the petition at the criminal defendants' request.

Thereafter, State's Attorney Birkett petitioned Judge Pirrello to terminate the appointment of Jegen as a special State's Attorney. Birkett argued that Judge Coar of the federal court found no conflict of interest in his representing both Du Page County and the individual defendants. Birkett also argued that Jegen exceeded his lawful authority pursuant to the appointment order by appearing before Judge Kelly in the criminal case on October 20, 1997. On November 25, 1997, Judge Pirrello rendered a memorandum decision that was filed on December 1, 1997. Judge Pirrello stated in the memorandum opinion that he would not adopt the decision of the federal court on the conflict issue and that Judge Kelly would ultimately decide whether the County Board must pay the legal fees of the Du Page 7. Judge Pirrello indicated that he believed Jegen shared that position and for that reason Jegen advised the Board to continue to resist payment of the legal fees. Judge Pirrello therefore denied Birkett's petition to terminate Jegen's appointment as a special State's Attorney.

On February 10, 1998, the County Board adopted Resolution CB--0020--98, directing that Jegen "cease and desist from performing any further legal work on behalf of the DuPage County Board, the County of DuPage and the People of DuPage County." This resolution further directed Jegen to appear before Judge Pirrello, advise him of the Board's directive, and ...


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