Coles Co. (ECWd) -
The Coles County State's Attorney, Brian Bower, was selected to fill a vacancy for an associate judge position in the 5th Judicial Circuit. The local paper reported that he was chosen out of twelve applicants, and, according to Judge Shick, he really had all areas of law well covered.
We contend one area of law that clearly is not well covered is County Government, but please don't take our word for it. Just follow the paper trail.
Brian Bower, as the current State's Attorney, provides legal counsel to the County Board. Contained in his resignation letter was his legal advice to the County Board as it relates to their duties of replacing him.
"It will be necessary that the Coles County Board appoint an interim State's Attorney to serve until the next general election, November 2020, prior to the 31st day of December 2018".
So a future judge, the best of 12 candidates, instructs the County Board that it will be necessary to appoint an interim States Attorney to serve the rest of his term and that it should be done before December 31, 2018, which was his effective resignation date.
Future Judge missed a few key points in his instructions.
What does the law point to as the steps to follow in this situation and did the County Board follow the law with this future judge sitting next to them during the entire process?
- "the county board or board of county commissioners shall declare that such vacancy exists"
The Coles County Board has never declared a vacancy for the office of State's Attorney, the first step to take before any appointment can be made.
- "The vacancy shall be filled within 60 days by appointment of the chairman of the county board or board of county commissioners with the advice and consent of the county board or board of county commissioners."
During December 18, 2018, Special Meeting of the County Board, the County Chairman appointed a State's Attorney to serve until November 30, 2020, and by a majority vote of the board, the appointment became effective on the date of the vote, December 18, 2018. Effective on that date because there was no mention of a beginning term of office, thus it is effective the day of the action, as outlined in the minutes and video of the meeting below.
Of special interest in this Special Meeting, where a State's Attorney was appointed even though there was no vacancy, is the fact the action they took was all done in an illegal meeting.
The County Code requires certain steps to be followed for the calling and holding of a special meeting, one of which is that the notice is to be published in the local paper.
(55 ILCS 5/2-1002) (from Ch. 34, par. 2-1002)
Sec. 2-1002. Special meetings. Special meetings of the board shall be held only when requested by at least one-third of the members of the board, or when requested by the chairman of the board in counties where such chairman is elected by the voters of the county, which request shall be in writing, addressed to the clerk of the board, and specifying the time and place of such meeting, upon reception of which the clerk shall immediately transmit notice, in writing, of such meeting, to each of the members of the board. The clerk shall also cause notice of such meeting to be published in some newspaper printed in the county, if any there be."
No such notice was provided in the paper as confirmed in this communication. Bower, as legal counsel to the County Board and its officers, said nothing during this illegal meeting. It is noted that this is not the first time they have failed to comply with the law on the holding of special meetings.
While we understand there "will" be a vacancy in the future and that the County Board has chosen a person to fill that vacancy when it actually exists, the actions taken have circumvented the most basic principals of law; following them. This all took place under the legal guidance of Brian Bower, the best of twelve for the position of Associate Judge.
Let's keep it simple.
- County holds a special meeting and violated the County Code by not publishing the notice in the paper.
- County failed to declare a vacancy for the office of State's Attorney with an effective date of January 1, 2019, the first day the seat would actually be vacant.
- County appointed a State's Attorney on December 18, 2018, to fill a term that ends November 30, 2020.
- County appointment of new State's Attorney did not have an effective date of January 1, 2019, the first day the position is actually vacant by law.
For those that want to say this is nitpicking and no big deal, let us explain why this is a huge deal on several fronts.
Was anyone charged with a crime between December 18, 2018, and the end of the year? Who charged them, the current legal State's Attorney, or the illegally appointed State's Attorney?
What happens when a future criminal in 2019 and beyond looks for ways to get out of his crime through a good defense attorney. Was the State's Attorney that charged him operating under the color of law? Was he properly appointed to the position as State's Attorney? This is much like a police officer's arrest being challenged in court because he was not properly hired. If they were not properly hired all their arrests could be thrown out.
One can easily argue the appointed State's Attorney in Coles County does not legally hold that position because of mistakes made in the appointment process.
- You can't appoint a person to a position that is not vacant.
- Actions taken during an illegal meeting can be overturned when laws are not followed.
- Criminals could go free on these type of technicalities.
When a person is charged with a crime, it is handed down by the State's Attorney. As it stands on paper, Coles County currently has 2 State's Attorneys. One that resigns on December 31, 2018, and the other that was appointed December 18, 2018. We could find no statutory authority for a County to have 2 State's Attorneys.
The fix to this is simple and we urge the County Board to take the following steps to avoid future litigation and possibly the release of criminals due to technicalities.
- Call a Speical Meeting in full compliance with the law for the purpose of declaring a vacancy in the Office of State's Attorney as of January 1, 2019, and appointment action to fill that vacancy.
- Declare the vacancy during a public meeting with a vacancy date of January 1, 2019
- Appoint a person to fill that vacancy as declared vacant, effective January 1, 2019
While we hope the current legal State's Attorney takes appropriate steps to have these mistakes corrected, we put little faith in that actually happening as doing so validates that it was done wrong, to begin with, all while he was their legal counsel and sitting at their side in the process.
Brian Bower, your future Associate Judge!