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June 22, 2024

Test All Things, Hold Fast To That Which Is True

By Kirk Allen & John Kraft

On August 6, 2023

Illinois (ECWd)-

After years of research and learning the laws as they are applied to our local governments, we know there are answers to pretty much every challenge we come across in local government.  A common problem we have seen in county government is when you have State’s Attorneys who fail to enforce the laws that apply to their own county operations because they think taking action against the county board, its members individually, or county officers are outside their purview.  This subject is nothing new to us, but is worthy of a refresher course for those who simply do not understand or know what the courts have said when it comes to the duties of a State’s Attorney.

Who are the clients of a State’s Attorney?

According to the law and supported by case law, a State’s Attorney has three clients.  They are the County Board, County Officers, and the People of the County.   As spelled out in “The People v Ashton, 358 Il 146”“the State’s attorney has authority to represent the side which he believes to be right, and that no other workable construction can be placed upon section 5 of the Attorney General and State’s Attorneys act.”

“Numerous instances have occurred where the State’s attorney has represented the people against officers or the county board. In People v. Board of Supervisors, 294 Ill. 579, the State’s attorney represented the fire marshal in an original mandamus action against the county board of Gallatin county. In People v. Zimmer, 252 Ill. 9, the State’s attorney prosecuted a mandamus proceeding against the sheriff to compel him to execute a sentence for contempt. People v. Windes, 283 Ill. 251, People v. Williams, 330 id. 150, People v. Fisher, 303 id. 430, People v. Kelly, 352 id. 567, People v. Williams, 352 id. 227, and People v. Jarecki, 352 id. 207, are all cases in which the State’s attorney brought mandamus or other proceedings against judges or other officers of the county, each of whom was his statutory client.”

As outlined in Illinois Attorney General opinion S-291, A State’s Attorney must determine which position is correct and represent that party.

In 2017, the Kankakee County State’s Attorney field suit against a county board member and a township clerk – both were removed from office by the court.

In 2018 the People of Coles County pursued a quo warranto action after the county board hired a private contractor to do the job of the Supervisor of Assessments.  When brought by an individual, they must first give a State’s Attorney and Attorney General a chance to act on the matter.  If neither office takes the case then the individual is then free to bring the case directly.  We covered that situation in this article in which neither the State’s Attorney nor Attorney General was willing to represent the people who were right as a county board has no power to hire a private contractor to do the job of the Supervisor of Assessments.  That matter is still tied up in court after being brought by an individual.

Contrast that with Shelby County where the State’s Attorney sided with the People and filed a quo warranto complaint against a county board member, the Township Cemetary Board the member sits on, and the Township Board who made the appointment to the Cemetery Board. While some think since the person appointed is a county board member the State’s Attorney is supposed to be their attorney rather than take any action against them, the truth of the matter is there are three clients of a State’s Attorney and he is required to determine who is correct and represent that party, as spelled out in case law.

In the case of the Shelby County board member and township boards named, they are being given a chance to show by what warrant the member exercises the office of Rose Township Cemetary Board.  If the person is unable to provide the legal standing to hold that office then the Judge, a neutral arbiter makes the determination.  This process is part of the checks and balances to ensure a State’s Attorney is not acting unilaterally on such matters but rather bringing them to the courts to decide.

Over the years we have heard numerous State’s Attorneys say they can’t take action against a county board member or county officer because they are their clients.  Taking such a position ignores their third client, the People.

So the next time you get told a State’s Attorney is duty-bound to represent a County Board member or County Officer, test such logic against case law rather than an uneducated perception of the law and how it is to be applied.

Test all things and hold fast to that which is true.

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