In re The Appointment of a Special Prosecutor

2024 IL App (4th) 231295-U

• Court: Appellate Court of Illinois
• Decided: August 1, 2024
• Docket: 4-23-1295
• Status: Unpublished

Opinion

NOTICE 2024 IL App (4th) 231295-U This Order was filed under FILED August 1, 2024 Supreme Court Rule 23 and is NO. 4-23-1295 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re THE APPOINTMENT OF A SPECIAL ) Appeal from the PROSECUTOR, ) Circuit Court of ) Tazewell County (Shelly I. Hranka, ) No. 22MX118 Petitioner-Appellant, ) v. ) Kevin E. Johnson, in His Official Capacity as State’s ) Honorable Attorney of the County of Tazewell, ) Carla E. Wheeler, Respondent-Appellee). ) Judge Presiding.

JUSTICE DOHERTY delivered the judgment of the court. Justices Harris and Zenoff concurred in the judgment.

ORDER

¶1 Held: The trial court did not abuse its discretion in dismissing a petition for the appointment of a special prosecutor because petitioner failed to adequately allege that respondent had an actual conflict of interest.

¶2 This appeal arises from the trial court’s dismissal of a petition that the responding

party has fairly described as “a disorganized and chaotic stream of complaints related to Tazewell

County government.” Petitioner Shelly I. Hranka sought the appointment of her personal attorney,

Donald K. Birner, as a special prosecutor for Tazewell County (County) so that he could pursue a

litany of allegations of official misconduct by County Board Chairman David Zimmerman, claims

that then County State’s Attorney Stewart J. Umholtz had failed to pursue. The court dismissed

the petition because petitioner failed to adequately allege an actual conflict of interest on the part of current County State’s Attorney Kevin E. Johnson or his office. Because the court did not abuse

its discretion in dismissing the petition, we affirm.

¶3 I. BACKGROUND

¶4 Petitioner served as the County auditor until 2020. In 2019, purportedly acting in

her official capacity and on behalf of the County, petitioner brought a complaint against

Zimmerman in his official and individual capacities, Umholtz in his official capacity, and former

County Auditor Vicki Grashoff in her individual capacity. Petitioner’s complaint was filed by

Birner, who was acting as her attorney without the approval of the County Board or the state’s

attorney; the complaint alleged misconduct by Zimmerman involving reimbursements for

commuter mileage, a contract for attorney fees in an earlier case, constructive fraud, and breach of

fiduciary duties. Petitioner sought the recovery of funds to the County based on these allegations.

¶5 The Counties Code imposes a duty on state’s attorneys to represent county officers

in their official capacity whether they are plaintiffs or defendants, so Umholtz had a prima facie

duty to represent both sides of petitioner’s lawsuit. See 55 ILCS 5/3-9005(a)(3)-(4) (West 2018).

However, under long-standing precedent governing such situations, “the state’s attorney has

authority to represent the side which he believes to be right” (People ex rel. Courtney v. Ashton,

358 Ill. 146, 152 (1934)), and Umholtz chose to represent respondents’ side. Nevertheless,

petitioner believed this situation constituted a per se conflict of interest, so she sought the

appointment of Birner as a special prosecutor under subsection (a-10) of section 3-9008 of the

Counties Code, which provides:

“[A]n interested person in a cause, proceeding, or other matter arising under the

State’s Attorney’s duties, civil or criminal, may file a petition alleging that the

State’s Attorney has an actual conflict of interest in the cause, proceeding, or other

-2- matter. The court shall consider the petition, any documents filed in response, and

if necessary, grant a hearing to determine whether the State’s Attorney has an actual

conflict of interest in the cause, proceeding, or other matter. If the court finds that

the petitioner has proven by sufficient facts and evidence that the State’s Attorney

has an actual conflict of interest in a specific case, the court may appoint some

competent attorney to prosecute or defend the cause, proceeding, or other matter.”

55 ILCS 5/3-9008(a-10) (West 2018).

¶6 The trial court declined to appoint a special prosecutor, concluding that Umholtz’s

refusal to represent petitioner in the lawsuit was a proper exercise of his discretion resulting from

a mere difference of opinion, as opposed to an “actual conflict of interest” as required by

subsection (a-10) (id.). The court then granted Zimmerman’s motion to dismiss the complaint

because petitioner lacked legal standing to sue on behalf of the County.

¶7 Petitioner appealed. This court affirmed, agreeing with the trial court that petitioner

lacked standing to sue on the County’s behalf and holding that her request for a special prosecutor

was moot because the request was limited to her official-capacity suit. County of Tazewell ex rel.

Hranka v. Zimmerman, 2021 IL App (3d) 200315, ¶ 20.

¶8 In May 2022, petitioner filed the petition at issue in the present case, seeking the

appointment of Birner as a special prosecutor under subsection (a-10) to investigate and pursue

the same allegations against Zimmerman, naming Umholtz as the respondent in his official

capacity as the state’s attorney. Petitioner was no longer the County auditor, so she filed the

petition in her capacity as a private citizen; because the parties have failed to address the issue, we

assume without deciding that petitioner qualified as “an interested person” eligible to file a petition

under subsection (a-10) (id.).

-3- ¶9 Johnson took over the position of state’s attorney from Umholtz on an interim basis

in September 2022, and the citizens of the County elected Johnson to the position in November

2022. Although the caption in the trial court did not change, we note that the respondent is now

Johnson in his official capacity as the County’s state’s attorney; we have changed the caption in

this court accordingly. See 735 ILCS 5/2-1008(d) (West 2022) (“If any trustee or any public officer

ceases to hold the trust or office and that fact is suggested of record, the action shall proceed in

favor of or against his or her successor.”). Also in November 2022, petitioner filed a supplement

to her petition, adding further allegations of misconduct by Zimmerman.

¶ 10 In July 2023, the trial court dismissed the supplemented petition on the state’s

attorney’s motion, concluding that petitioner had failed to adequately allege an actual conflict of

interest. The court denied petitioner’s motion to reconsider.

¶ 11 This appeal followed.

¶ 12 II. ANALYSIS

¶ 13 Petitioner’s brief is far from straightforward; she identifies 6 issues presented for

review but divides her argument into 10 headings, many of which raise points unrelated to those 6

issues. In addition, her statement of facts consists almost entirely of legal argument, her argument

section contains several subsections with no significant analysis, and her conclusion fails to state

the precise relief sought. See Ill. S. Ct. R. 341(h) (eff Oct. 1, 2020) (establishing the requirements

for an appellant’s opening brief). An appellant’s failure to comply with Rule 341(h) is a serious

matter for which this court may impose sanctions, including striking portions of the brief or

dismissing the appeal. Ittersagen v. Advocate Health & Hospitals Corp., 2021 IL 126507, ¶¶ 36-

37; see Thrall Car Manufacturing Co. v. Lindquist, 145 Ill. App. 3d 712, 719 (1986) (“A reviewing

court is entitled to have the issues on appeal clearly defined with pertinent authority cited and a

-4- cohesive legal argument presented. The appellate court is not a depository in which the appellant

may dump the burden of argument and research.”). Although we need not go that far in this case,

we can say that petitioner’s brief has hindered our consideration of this appeal to the extent that

such sanctions would not be unduly harsh. See In re Detention of Powell, 217 Ill. 2d 123, 132

(2005). Instead, we deem forfeited all of petitioner’s arguments not explicitly addressed in this

order. See Ittersagen, 2021 IL 126507, ¶ 37 (disregarding noncompliant portions of an appellant’s

brief); Express Valet, Inc. v. City of Chicago, 373 Ill. App. 3d 838, 855 (2007) (finding forfeiture

of “[a]n issue not clearly defined and sufficiently presented” under Rule 341(h)).

¶ 14 A. Legal Standard

¶ 15 It is well established that Johnson, as the state’s attorney, is the person ordinarily

responsible for investigating any allegations of official misconduct involving County officials and

potentially pursuing those allegations on the County’s behalf in a civil or criminal proceeding. See

County of Cook ex rel. Rifkin v. Bear Stearns & Co., 215 Ill. 2d 466, 482 (2005) (“Under the

Counties Code, the State’s Attorney has exclusive authority to prosecute all actions on behalf of

the County.”). The law does not “require the appointment of a special prosecutor in every

investigation of official misconduct involving county officials.” In re Grand Jury Investigation of

Swan, 92 Ill. App. 3d 856, 863 (1981). Indeed, the appointment of a special prosecutor is “a drastic

measure[,] for it disenfranchises the very electorate who, through its votes, has spoken” by electing

its choice to serve as the County’s attorney. (Internal quotation marks omitted.) McCall v. Devine,

334 Ill. App. 3d 192, 205 (2002). When the trial court declines to appoint a special prosecutor

based on the allegations in the petition alone, we review its decision for an abuse of discretion,

accepting all well-pleaded facts as true but disregarding all surplusage and conclusory allegations.

See id. at 198, 205; In re Appointment of a Special Prosecutor, 2019 IL App (1st) 173173, ¶ 20

-5- (Farmer). To warrant the appointment of a special prosecutor, those facts cannot be “mere

suspicion or speculation” but must instead be “specific factual allegations of ‘interest’ within the

meaning of section 3-9008 of the Counties Code.” McCall, 334 Ill. App. 3d at 205; see Farmer,

2019 IL App (1st) 173173, ¶ 49 (describing this as “a very high burden”).

¶ 16 Although subsection (a-10) is clear that the petition must establish “that the State's

Attorney has an actual conflict of interest in a specific case” (55 ILCS 5/3-9008(a-10) (West

2022)), the parties dispute what it means for the state’s attorney to have an actual conflict of

interest. In interpreting the currently effective statute, this court has held that an actual conflict of

interest exists “where the State’s Attorney *** was interested as (1) a private individual or (2) an

actual party to the action.” In re Appointment of a Special State’s Attorney, 2020 IL App (2d)

190845, ¶ 17 (Haney); see Farmer, 2019 IL App (1st) 173173, ¶ 39. This “necessarily includes the

circumstance where a state’s attorney is obligated to represent both sides of a conflict but refuses

to represent one side notwithstanding a colorable claim.” Haney, 2020 IL App (2d) 190845, ¶ 22

(citing Suburban Cook County Regional Office of Education v. Cook County Board, 282 Ill. App.

3d 560, 575 (1996)).

¶ 17 Petitioner argues for an even broader standard, suggesting that anything that would

constitute a conflict of interest under the Illinois Rules of Professional Conduct (Rules) necessarily

warrants the appointment of a special prosecutor. We may readily reject this argument because it

is disclaimed by the Rules themselves. See Ill. R. Prof’l Conduct (2010) Scope cmt. 20 (eff. Jan.

1, 2010) (“[V]iolation of a Rule does not necessarily warrant any other nondisciplinary remedy,

such as disqualification of a lawyer in pending litigation.”). Indeed, the Rules specifically

acknowledge: “[L]awyers under the supervision of [the state’s attorney] may be authorized to

represent several government agencies in intragovernmental legal controversies in circumstances

-6- where a private lawyer could not represent multiple private clients. These Rules do not abrogate

any such authority.” Illinois R. Prof’l Conduct (2010) Scope cmt. 18 (eff. Jan. 1, 2010); see Ill. R.

Prof’l Conduct (2010) R. 1.13 cmt. 9 (eff. Jan. 1, 2010) (“Defining precisely the identity of the

client and prescribing the resulting obligations of such lawyers [for governmental organizations]

may be more difficult in the government context and is a matter beyond the scope of these Rules.”).

The Rules also “do[ ] not impute the conflicts of a lawyer currently serving as an officer or

employee of the government to other associated government officers or employees.” Ill. R. Prof’l

Conduct (2010) R. 1.11 cmt. 2 (eff. Jan. 1, 2010).

¶ 18 Accordingly, we will conduct our inquiry under our existing statutory standard to

determine whether petitioner has adequately alleged a conflict of interest. See Haney, 2020 IL App

(2d) 190845, ¶¶ 17, 22 (agreeing with Suburban Cook but rejecting an extrastatutory analysis).

¶ 19 B. The State’s Attorney as a Private Individual

¶ 20 Petitioner’s arguments revolve almost entirely around Umholtz, but we reject

petitioner’s view that the question is whether Umholtz had a conflict of interest while he was the

state’s attorney. Instead, the relevant inquiry at the time of the trial court’s decision below was

whether Johnson had an interest that conflicted with his then-current duty as state’s attorney to

investigate and pursue any colorable claims of misconduct committed by Umholtz and

Zimmerman; if so, the court would have the discretion to appoint a special prosecutor to assume

Johnson’s duties under subsection (a-10). Because neither the trial court nor this court can relieve

Umholtz of duties he no longer has, petitioner’s arguments with respect to Umholtz as a private

individual are moot. Cf. Spomer v. Littleton, 414 U.S. 514, 520-21 (1974) (vacating a judgment

regarding a former Illinois state’s attorney’s discriminatory practices when “[n]o allegations in the

-7- complaint cited any conduct of [the new state’s attorney] as the basis for equitable or any other

relief,” potentially mooting the complaint and the appeal).

¶ 21 With respect to Johnson, we do not start with the presumption that he will fail to

exercise his duties as state’s attorney; rather, “ ‘[i]t is presumed that [the state’s attorney] will act

under such a heavy sense of public duty and obligation for enforcement of all our laws that he will

commit no wrongful act.’ ” Rifkin, 215 Ill. 2d at 476 (quoting People ex rel. Kunstman v. Nagano,

389 Ill. 231, 252 (1945)). Petitioner has just two concerns with Johnson as a private individual; as

the state’s attorney’s office points out, and petitioner acknowledges, neither of these concerns was

raised with the trial court in the petition or supplemental petition, which suggests they are forfeited

for purposes of appeal. See Home Insurance Co. v. Liberty Mutual Insurance Co., 266 Ill. App. 3d

1049, 1053 (1994) (finding forfeiture of an issue raised only “ ‘as an aside’ ” in a reply brief with

the trial court). Assuming that the issue was adequately preserved, however, the allegations are

conclusory and would properly have been disregarded by the trial court even if they had been

raised in the petition. See McCall, 334 Ill. App. 3d at 198, 205.

¶ 22 First, petitioner points out that “Johnson was the Chief Deputy during much of the

reign of Umholtz.” It is unclear just what conclusion we are supposed to draw from this insinuation,

but it fails to rise even to the level of suspicion or speculation, much less the specific factual

allegations of interest required. Id. at 205. If a county official’s former employment by the state’s

attorney were a sufficient basis for the appointment of a special prosecutor, then a special

prosecutor would become necessary to investigate every bare allegation of official misconduct

involving those officials, an outcome this court has rejected. Swan, 92 Ill. App. 3d at 863; McCall,

334 Ill. App. 3d at 205 (“To require [the petitioner] to plead and prove anything less than such

-8- specific facts would open the door to requiring a special prosecutor to be appointed any time a

police officer is suspected of wrongdoing.”).

¶ 23 Second, petitioner states that Johnson is likely to be a necessary witness in any

proceeding that would result from an investigation into Umholtz. See Ill. R. Prof’l Conduct (2010)

R. 3.7 (addressing the lawyer as a witness). As noted above, a violation of the Rules would not

necessarily provide grounds for disqualifying Johnson, but in any event, petitioner’s argument

falters on its own terms. Rule 3.7(a) provides that “[a] lawyer shall not act as advocate at a trial

in which the lawyer is likely to be a necessary witness,” subject to three exceptions. (Emphasis

added.) Ill. R. Prof’l Conduct (2010) R. 3.7(a) (eff. Jan. 1, 2010). The conflict of interest arises

only in the context of a trial because “the function of an advocate is to advance or argue the cause

of another, while that of the witness is to state the facts objectively.” People v. Gully, 243 Ill. App.

3d 853, 859 (1993). As such, any consideration of Rule 3.7—including its exceptions and the

possibility of another attorney in the state’s attorney’s office acting as an advocate at the trial

instead—would be premature before the duty to testify materialized. See People v. Rivera, 2013

IL 112467, ¶ 38 (holding that a defense attorney’s withdrawal was not necessary until “he intended

to testify as a material witness”); Sommer v. Goetze, 102 Ill. App. 3d 117, 120 (1981) (finding that

appointment of special prosecutor was necessary for a hearing at which “the Assistant State’s

Attorney was the complainant and key eyewitness”).

¶ 24 Because petitioner’s allegations of an actual conflict interest on Johnson’s part were

belated, conclusory, and deficient as a matter of law, the trial court did not abuse its discretion in

declining to appoint a special prosecutor on this basis.

¶ 25 C. The State’s Attorney as an Actual Party

-9- ¶ 26 Petitioner argues that an actual conflict of interest exists because the state’s

attorney’s office would be the subject of any investigation into Umholtz. It is not unheard of for a

circuit court to appoint a special prosecutor to investigate allegations of misconduct within a state’s

attorney’s office (see Bianchi v. McQueen, 818 F.3d 309, 313 (7th Cir. 2016) (describing two such

appointments)), but the standard for such an appointment is exceptionally high because it

constitutes a judicial intrusion into the political process. See Farmer, 2019 IL App (1st) 173173,

¶ 40 (noting the need for “extreme and particularized” facts); see also People ex rel. Daley v.

Moran, 94 Ill. 2d 41, 46 (1983) (emphasizing the importance of avoiding judicial intrusion into

the state’s attorney’s role as the people’s representative). Moreover, the purpose of the

appointment is not prosecution, as petitioner seems to believe, but the exercise of prosecutorial

discretion by an impartial decisionmaker after a full and fair investigation into the facts; that

decisionmaker may still find that prosecution is not warranted. See Ill. R. Prof’l Conduct (2010)

R. 3.8 (eff. Jan. 1, 2016) (“The duty of a public prosecutor is to seek justice, not merely to

convict.”); cf. Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 380 (2d Cir.

1973) (“[Judicial] interference with the normal operations of criminal investigations, *** based

solely upon allegations of criminal conduct, raises serious questions of potential abuse by persons

seeking to have other persons prosecuted.”).

¶ 27 Here, petitioner’s only real complaint with the state’s attorney’s office is its failure

to act, but the decision whether to act is the state’s attorney’s prerogative absent truly exceptional

circumstances. See Daley, 94 Ill. 2d at 46. It is evident after years of litigation that petitioner

continues to believe that pursuing Zimmerman’s alleged misconduct is of critical importance to

the County, but petitioner’s views in this respect are no different from any other County resident’s

views about how the office should spend its time and finite resources. The person in charge of

- 10 - setting the office’s priorities is Johnson, who was elected to represent the citizens of the County;

petitioner and Birner must resort to the political process, rather than the courts, to convince the

electorate to replace the officeholder or change the officeholder’s priorities. See Rifkin, 215 Ill. 2d

at 481 (“If the voters are unsatisfied with the State’s Attorney’s manner of discharging his duties,

they have a remedy every four years in the election booth.”).

¶ 28 Because petitioner’s allegations of inaction by the state’s attorney’s office are not

the kind of extreme and particularized allegations of interest necessary to warrant an investigation

into the office, the trial court did not abuse its discretion in declining to appoint a special prosecutor

on this basis.

¶ 29 D. The State’s Attorney’s Obligation to Represent Both Sides of a Conflict

¶ 30 In Haney, this court recognized that an actual conflict exists under subsection (a-10)

when three conditions are met: (1) a state’s attorney is obligated to represent both sides of a

conflict, (2) one side has a colorable claim against the other, and (3) the state’s attorney refuses to

represent one side. Haney, 2020 IL App (2d) 190845, ¶ 22. Petitioner argues that the trial court

erred by failing to consider whether her petition presented a colorable claim. However, we find

that the trial court properly declined to reach the question because petitioner failed to adequately

allege that the state’s attorney was obligated to represent both sides of these claims.

¶ 31 The need for all three conditions identified in Haney arises from the fact that the

state’s attorney’s obligation to represent the County is met with a reciprocal obligation by the

County to employ the state’s attorney as its legal representative. See Rifkin, 215 Ill. 2d at 483 (“The

State’s Attorney *** is the only person empowered to represent the County in matters when, as

here, the County is the real party in interest.”). Therefore, a refusal by the state’s attorney to pursue

a legal claim on the County’s behalf has the practical effect of extinguishing that claim by leaving

- 11 - the County without legal representation to pursue it. This extinguishment of the claim may be

unfortunate for the County, but it is not necessarily an “actual conflict of interest” warranting the

appointment of a special prosecutor under subsection (a-10) (55 ILCS 5/3-9008(a-10) (West

2022)).

¶ 32 However, if the state’s attorney is also obligated to represent the opposing party,

such as a County officer sued in his official capacity, then the extinguishment of the County’s

claim confers a benefit on the officer who would otherwise have to defend against the suit; the

state’s attorney effectively advances one client’s interests purely by declining to pursue another

client’s interests. This situation invokes the court’s authority to appoint a special prosecutor under

subsection (a-10), with one exception: if the County’s claim is not colorable, then there is no

“actual conflict of interest” under subsection (a-10) (id.) because the County has no legitimate

interest in pursuing frivolous claims, and the state’s attorney, as well as the special prosecutor,

would be ethically prohibited from pursuing such claims in any event. See Suburban Cook, 282

Ill. App. 3d at 575 (explaining that the colorable claim requirement ensures that a County official

cannot “arbitrarily seek representation from a private attorney, nor seek private representation to

advance a frivolous legal position”); Ill. R. Prof’l Conduct (2010) R. 3.1 (eff Jan. 1, 2010)

(prohibiting attorneys from advancing frivolous claims).

¶ 33 This does not mean, as petitioner argues, that the colorable claim requirement must

always be addressed when this particular kind of conflict is alleged in a petition seeking the

appointment of a special prosecutor. On the contrary, subsection (a-10) is agnostic about the

substance of the “cause, proceeding, or other matter arising under the State’s Attorney’s duties,

civil or criminal” (55 ILCS 5/3-9008(a-10) (West 2022)), so the trial court should consider the

potential success of a petitioner’s claim only as the final step in determining whether the

- 12 - appointment of a special prosecutor is necessary. In other words, a court should opine that a claim

is meritless only if that lack of merit is the sole basis for the court’s refusal to appoint a special

prosecutor, and more importantly, a court should never render an improper advisory opinion that

a claim is colorable while simultaneously refusing to appoint a special prosecutor to pursue that

claim. See People v. Mosley, 2015 IL 115872, ¶ 11 (explaining that Illinois courts are not permitted

to issue advisory opinions on hypothetical controversies).

¶ 34 Turning to the other two conditions from Haney, petitioner has failed to allege the

existence of a conflict in which the state’s attorney is obligated to represent both sides. Instead,

petitioner has described claims the County could assert in a hypothetical conflict; however, as we

noted in petitioner’s previous appeal, the real party in interest to those claims is the County, and

the County Board has not chosen to assert those claims. See Hranka, 2021 IL App (3d) 200315,

¶¶ 15-16 (citing 55 ILCS 5/1-6003 (West 2016)); Rifkin, 215 Ill. 2d at 474 (“Here, only the County

would benefit from a successful prosecution of the *** claims. Therefore, the County is the only

real party in interest.”). Until the County Board does so, the state’s attorney has no obligation to

pursue the claims on the County’s behalf, merely the discretion to act, and for the reasons set forth

above, “[t]here is no reason to assume that the State’s Attorney’s decision *** is ill-considered,

unfounded, or improperly motivated” (Rifkin, 215 Ill. 2d at 481) in the absence of specific factual

allegations of interest, which petitioner has failed to supply.

¶ 35 Nevertheless, petitioner seems to argue that the merely hypothetical obligations

raised by the petition are sufficient under Haney because, even if the County chose to pursue the

claims, the state’s attorney has preemptively refused to represent the County on those claims by

participating in this very litigation. According to petitioner, the state’s attorney’s repeated

arguments that her claims lack merit have so impaired his ability to represent the County that “it

- 13 - staggers the imagination that he could switch his allegiance *** and commence representing the

county relative to the same claims.” We reject this argument for two reasons.

¶ 36 First, petitioner is merely speculating about events that have not transpired. We will

not prematurely presume that the state’s attorney would abandon his “ ‘heavy sense of public

duty’ ” to zealously advocate on the County’s behalf if the County chose to assert these claims

itself. See id. at 476. Similarly, we will not presume that the state’s attorney would fail to take

some corrective action if he did find that he could not represent the County with anything less than

the zealous advocacy it is his duty to provide. See id.

¶ 37 Second, and more critically, petitioner’s proposed approach would eviscerate the

ability of state’s attorneys to oppose the appointment of special prosecutors. Petitions under

subsection (a-10) will generally be opposed because a state’s attorney who supports the

appointment of a special prosecutor has the right to recuse himself under subsection (a-15) rather

than rely on a third party to file a petition under subsection (a-10). See 55 ILCS 5/3-9008(a-15)

(West 2022) (“Notwithstanding subsections (a-5) and (a-10) of this Section, the State’s Attorney

may file a petition to recuse the State’s Attorney from a cause or proceeding for any other reason

the State’s Attorney deems appropriate and the court shall appoint a special prosecutor as provided

in this Section.”). For a state’s attorney to properly defend his constitutional role from unnecessary

intrusion by a special prosecutor, he must be allowed to argue to the best of his ability that the

claims in the petition are not colorable, and the less colorable the claims are, the better the state’s

attorney’s arguments against them will be. As such, petitioner’s proposed approach would produce

the perverse consequence of making the appointment of a special prosecutor more likely in cases

where the underlying claims are less likely to succeed on the merits, based on the opinion of the

constitutional officer best equipped to make such judgments. We decline to endorse an approach

- 14 - that would incentivize state’s attorneys to make halfhearted arguments against the appointment of

special prosecutors to avoid conveying the impression that they have improperly prejudged claims.

¶ 38 Although we do not rule out the possibility that a state’s attorney’s litigation

strategy in response to a petition may weigh in favor of the appointment of a special prosecutor,

we cannot find that vigorous opposition to the petition in and of itself constitutes a preemptive

refusal to pursue a claim raised in the petition if an obligation to pursue that claim materialized.

¶ 39 Because petitioner failed to adequately allege two of the three required components

to establish an actual conflict of interest under Haney, the trial court did not abuse its discretion by

declining to consider the third requirement or appoint a special prosecutor on this basis.

¶ 40 E. Finding of No Ethical Violation

¶ 41 In its order denying petitioner’s motion to reconsider, the trial court found,

“Respondent has not violated the Illinois Rules of Professional Conduct.” Although we understand

the court to have engaged in roughly the same legal analysis of the Rules that we conducted above,

and while consideration of the rules of professional ethics may be part of the relevant analysis, we

do not believe the trial court’s finding should be construed as an attempt to decide any ethical issue

per se. A trial court may not adjudicate whether an attorney in fact violated the Rules in the course

of its analysis because that “would constitute an impermissible infringement on the exclusive

power of the supreme court, acting through the [Attorney Registration and Disciplinary

Commission], to adjudicate disciplinary matters.” Lustig v. Horn, 315 Ill. App. 3d 319, 328 (2000).

For the same reason, this court may not enter a judgment affirming a trial court’s finding that an

attorney has or has not violated the Rules. See Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 229

(2000) (“In Illinois, only [the supreme] court possesses the ‘inherent power to discipline attorneys

who have been admitted to practice before it.’ ”) (quoting In re Harris, 93 Ill. 2d 285, 291 (1982)).

- 15 - We pause here only to note that the trial court’s “finding” should not be construed as encroaching

on the supreme court’s authority in deciding matters of attorney discipline.

¶ 42 III. CONCLUSION

¶ 43 For the reasons stated, we affirm the trial court’s judgment.

¶ 44 Affirmed.

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