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McCall v. Devine8/30/2002
e appointed where the Attorney General is interested should be limited to the situations above." Environmental Protection Agency, 69 Ill. 2d at 401.
At oral argument, McCall's attorney acknowledged that his complaint never alleged Devine was "interested" in either of the two manners discussed in Environmental Protection Agency. Namely, the complaint never alleged that Devine was interested as a "private individual" or that he or the State's Attorney's office would be "an actual party to the action." McCall's attorney argues that the required statutory interest is not limited to these two instances alone.
The decision to appoint a special prosecutor under section 3-9008 of the Counties Code (55 ILCS 5/3-9008 (West 2000)) lies within the trial court's discretion. People v. Morley, 287 Ill. App. 3d 499, 504 (1997). This provision's purpose is "to prevent any influence upon the discharge of the duties of the State's Attorney by reason of personal interest." Morley, 287 Ill. App. 3d at 503-04. This court has consistently held that a State's Attorney is "interested" for purposes of section 3-9008 only where he is interested as a private individual or his office is a party to the action. People v. Tracy, 291 Ill. App. 3d 145, 151 (1997); People v. Morley, 287 Ill. App. 3d 499, 504 (1997); People v. Dall, 207 Ill. App. 3d 508, 530 (1991); People v. Trolia, 107 Ill. App. 3d 487, 496 (1982)(interpreting section 6).
On appeal, McCall relies heavily on People v. Courtney, 288 Ill. App. 3d 1025 (1997), for its holding that it is improper for an attorney to represent conflicting interests or undertake to discharge inconsistent duties, and "the public must be able to maintain the right to believe in the total integrity of the Bar as a whole." Courtney, 288 Ill. App. 3d at 1032-33. In Courtney, the defense attorney who represented the defendant for the first 14 months his sexual assault case was pending was appointed as the State's Attorney of Kankakee County. The Kankakee County State's Attorney's office informed the trial court that a special prosecutor would be appointed. After several continuances, the case was tried by a member of the Kankakee County State's Attorney's office. The appellate court found that prior to becoming State's Attorney, defendant's counsel answered discovery, "made numerous court appearances on behalf of the defendant and was clearly privy to the defendant's confidences." Courtney, 288 Ill. App. 3d at 1032. The court held that a per se conflict existed and a special prosecutor should have been appointed. Courtney, 288 Ill. App. 3d at 1034.
The facts in Courtney bear no relation to those in the present case and, consequently, its holding is of negligible assistance to this court. However, the State has cited a case in which the appellate court seems to apply a more expansive interpretation of the principle of conflict of interest than that set out by our supreme court in Environmental Protection Agency. In Baxter v. Peterlin, 156 Ill. App. 3d 564 (1987), the plaintiff, an Ottawa police officer, filed a complaint seeking appointment of a special prosecutor to prosecute the alleged wrongdoings of the mayor of Ottawa. Plaintiff alleged the defendant, the State's Attorney of La Salle County, had a disqualifying interest in any prosecution of the mayor as a result of the political relationship between the State's Attorney and the mayor. The circuit court, in accepting the complaint's factual allegations as true, dismissed the complaint, finding plaintiff's allegations insufficient.
On appeal, the Third District of the Appellate Court held:
"We agree with plaintiff's contention that a political alliance may create sufficient conflict of
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