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McCall v. Devine8/30/2002
ce department creates a conflict of interest that prevents Devine from conducting a fair and impartial investigation and prosecution.
Judgment on the pleadings is proper only where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Chicago Title & Trust Co. v. Steinitz, 288 Ill. App. 3d 926, 934 (1997). In ruling on a motion for judgment on the pleadings, only those facts apparent from the face of the pleadings, matters subject to judicial notice, and judicial admissions in the record may be considered. M.A.K. v. Rush-Presbyterian-St. Luke's Medical Center, 198 Ill. 2d 249, 255 (2001). When evaluating the facts, a court must construe the evidence strictly against the movant and liberally in favor of the nonmoving party. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483 (1998). Our review is de novo. Board of Trustees of the University of Illinois v. City of Chicago , 317 Ill. App. 3d 569, 571 (2000).
When a party moves for judgment on the pleadings pursuant to section 2-615(e) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-615(e) (West 1994)), it concedes the truth of the well-pled facts in the respondent's pleadings. Richco Plastic Co. v. IMS Co., 288 Ill. App. 3d 782, 786 (1997). This court has stated that a motion for judgment on the pleadings may be addressed to a complaint alone. Pioneer Bank & Trust Co. v. Austin Bank of Chicago , 279 Ill. App. 3d 9, 13 (1996). In deciding the motion, a court must disregard all surplusage and conclusory allegations. Teeple v. Hunziker, 118 Ill. App. 3d 492, 497 (1983).
As previously stated, "Whenever the 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 *." 55 ILCS 5/3-9008 (West 2000). In Environmental Protection Agency v. Pollution Control Board, 69 Ill. 2d 394 (1977), our supreme court interpreted section 6 of "An Act in regard to attorneys general and state's attorneys" (Ill. Rev. Stat. 1975, ch. 14, par. 6), which provided:
"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 *." Ill. Rev. Stat. 1975, ch. 14, par. 6.
Effective January 1, 1988, chapter 14, section 6 was amended so that Attorneys general and State's Attorneys would be considered under separate acts compiled in the Illinois Revised Statutes. The appointment of counsel to replace the Attorney General is now addressed by section 6 of the Attorney General Act (15 ILCS 205/6 (West 1998)). The pertinent language of section 3-9008 of the Counties Code (55 ILCS 5/3-9008 (West 2000)) is identical to that of section 6, which was interpreted by our supreme court in Environmental Protection Agency, 69 Ill. 2d 394.
In Environmental Protection Agency, the supreme court agreed with the Attorney General's interpretation that "interest" under section 6 exists only in two situations: " he first is where the Attorney General is interested as a private individual. [Citation.] The second situation is where the Attorney General is an actual party to the action." Environmental Protection Agency v. Pollution Control Board, 69 Ill. 2d at 400-01. The court specifically held that " he provision of section 6 that special counsel may b
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