Shelby Co. – “The position of “special assistant State’s Attorney” is a position unknown to our laws.”

Shelby Co. (ECWd) –

As we have outlined in several articles here,  here, here, and here, the Shelby County board violated the law when they appointed a “Special” Assistant State’s Attorney back in 2014.

Even after all the substantial evidence that they did violate the law, the work by the hired attorney continues and now the excuses are rolling in.

Shelby County residents may recall the murder trial of People v. Woodall in 1999 that was tried during Shelby County State’s Attorney Robert Broverman term.  Broverman “executed two documents, each of which was entitled “Appointment of Special Assistant State’s Attorney” and “Oath of Office.” The documents purported to pass on the prosecutorial powers that Broverman enjoyed by virtue of his office.” (People v. Woodall)

Those appointments were challenged in the courts in 2002 and the court’s ruling is crystal clear.

“The position of “special assistant State’s Attorney” is a position unknown to our laws.”

So if the position of “special assistant State’s Attorney” is a position unknown to our laws, how on earth can the Shelby County Chairman and State’s Attorney defend the resolution they passed creating such a position in 2014?

“If such an office could be created by the method employed in this case, a State’s Attorney, who, for whatever reason, did not want to perform the duties of office could simply commandeer anyone with a law license to take over. Moreover, the number of special assistant State’s Attorney appointed under this process would be ungoverned by county boards. Pub. Act 92-683, eff. July 16, 2002 (amending 725 ILCS 210/4.01 (West 2000)). To be sure, the ability on the part of State’s Attorney to unilaterally appoint special assistants to handle their chores could provide Illinois with a limitless fleet of statewide prosecutors, armed with plenary powers reserved to our Attorney General and to our State’s Attorneys under the constitution. However, the law does not contemplate such an easy delegation of official duties or prosecutorial powers.”

Looks like the court’s explanation in a prior Shelby County case mirrors what we see in Shelby County today. So much for learning from past mistakes.

While there is now a new provision in the law regarding Special Assistant State’s Attorney, that change has no bearing on the County Boards’ action in 2014 and the continued practice of a private attorney performing the duties of the State’s Attorney.   The courts, in the same Shelby County case referenced above, explain what “special” means.

“A “special” prosecutor is a prosecutor limited in role to a “particular cause or proceeding.” Aiken v. County of Will, 321 Ill. App. 171, 179, 52 N.E.2d 607, 611 (1943).The narrowly defined role is important. Without it, court-appointed special prosecutors could usurp constitutionally established power intended for exercise by an elected official. See Tearney v. Harding, 335 Ill. 123, 125, 166 N.E. 526, 527 (1929).”

We understand the State’s Attorney has expressed the action of the county board was proper because she has a conflict in representing the people’s interest when it involves deputies (labor negotiations), who bring a potential criminal case to her for possible prosecution.

If such a claim is being made then she is obligated to recuse herself and such a recusal triggers an appointment of a prosecutor by the courts.  That has not happened in this case.

Even more troubling, even with the new law permitting “Special” Assistance State’s Attorneys to be appointed, the county cannot try to fix their actions by using that provision because any “Special” Assistant State’s attorney is appointed to “assist” the State’s Attorney.  If she is conflicted, she can not participate at all, let alone have any assistance from such an appointment.

All payments to the illegally appointed attorney should stop and we suspect we may see legal action to actually recover those funds spent without proper authority.

When you are informed it’s not legal and you continue with the practice one would think it is no longer just a mistake.

We wonder if a properly appointed prosecutor would see such further expenditures as a criminal act?  Criminal misapplication of funds comes to mind.

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