NO. 3--95--0775
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1996
PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 13th Judicial Circuit,
) Grundy County, Illinois
Plaintiff-Appellant, )
)
v. )
) No. 95--CF--69
THOMAS WILKINSON, JOHN )
DOLLINGER and DONALD )
KAUFMAN, ) Honorable
) H. Chris Ryan,
Defendants-Appellees. ) Judge Presiding.
____________________________________________________________
JUSTICE MICHELA delivered the opinion of the court:
The circuit court of Grundy County dismissed a two-count
indictment charging appellees Thomas Wilkinson, John Dollinger
and Donald Kaufman with official misconduct in violation of
section 33--3(c) of the Criminal Code of 1961. 720 ILCS 5/33-
-(c) (West 1994). The State appeals. For the reasons set
forth below, we affirm in part and reverse in part.
A Grundy County grand jury investigated whether members of the
Grundy County Board acted improperly concerning the bid and
eventual award of a county contract for computer equipment.
The targets of this investigation, Wilkinson, Dollinger and
Kaufman (appellees), retained private counsel, Jeremy
Margolis, to represent their interests during the pendency of
the grand jury investigation. On November 1, 1994, Margolis
filed a petition to appoint a special prosecutor to conduct
the grand jury investigation and to enjoin the Grundy County
State's Attorney's Office from any involvement with the grand
jury investigation. On November 7, 1994, the court ruled a
special prosecutor was necessary and upon the agreement of the
parties and of Will County State's Attorney James Glasgow, the
court appointed the Will County State's Attorney's Office to
conduct the grand jury investigation. The investigation ended
on February 1, 1995, when the grand jury returned a no bill.
On February 14, 1995, the Grundy County board passed a
resolution indemnifying the appellees for their legal expenses
incurred during the grand jury investigation. The resolution
stated that the Grundy County State's Attorney was the county
board's statutory legal counsel, but that a perceived conflict
of interest prevented their receipt of statutory legal
representation from that office. The resolution further
stated that in order to obtain legal representation, the court
must appoint a Special State's Attorney pursuant to section 3-
-9008 of the Counties Code. 55 ILCS 5/3--9008 (West 1994).
The county board further resolved that Margolis be appointed
as "Special State's Attorney" for his legal representation of
the appellees during the grand jury investigation. However,
no legal motion was filed with the court to appoint Margolis,
or any other competent counsel, as a Special State's Attorney
nunc pro tunc or at any time during these proceedings.
The resolution passed upon the approval of the county
board. The appellees abstained from voting on the resolution
with the exception of Wilkinson, who was not present. Upon
authorization by the county board, the appellees personally
accepted $21,120.44 as reimbursement for their legal fees.
Will County Assistant State's Attorneys Philip Mock and Judith
DeVriendt conducted another Grundy County grand jury
investigation to determine whether the acceptance of these
monies constituted official misconduct. On August 16, 1995,
the grand jury returned a two-count indictment charging the
appellees with official misconduct. Because the language of
the indictment is at issue, it is reproduced below:
"COUNT I
on or between June 16, 1995 and June 20,
1995, at and within Grundy County,
Illinois, , a (sic) THOMAS WILKINSON,
JOHN DOLLINGER, DONALD KAUFMAN, male
persons, committed the offense of:
OFFICIAL MISCONDUCT
(CLASS 3 FELONY)
in that, they knowingly being public
officers, Grundy County Board members, in
their official capacity and with the
intent to obtain personal advantage for
themselves and each other, performed an
act in excess of their lawful authority,
in that they accepted $21,120.44 from the
County of Grundy for reimbursement for
legal fees incurred by them as private
citizens, in violation of Chapter 720,
Section 5/33-(c), of the Illinois
Compiled Statutes, 1994, contrary to the
Statute, and against the peace and
dignity of the same People of the State
of Illinois, and
COUNT II
in that, they knowingly, being public
legal fees incurred by them in their
official capacity without first having
their legal representative appointed as a
Special State's Attorney, in violation of
Chapter 720, Section 5/33-3(c), of the
Illinois Compiled Statutes, 1994,
contrary to the Statute, and against the
peace and dignity of the same People of
the State of Illinois ***."
On August 24, 1995, the appellees filed a pretrial motion
to dismiss both counts of the indictment. A hearing was held
and on September 5, 1995, the court denied the motion. The
appellees filed a motion to reconsider and on September 21,
1995, the court reversed itself and dismissed the indictment.
The State filed a timely notice of appeal.
The indictment at issue charges the appellees violated
section 33--3(c) of the Criminal Code of 1961, which states:
"[a] public officer or employee commits
misconduct when, in his official
capacity, he commits any of the following
acts:
* * *
(c) [w]ith intent to obtain a personal
advantage for himself or another, he
performs an act in excess of his lawful
authority[.]" 720 ILCS 5/33--3(c) (West
1994).
The form of a charge is sufficient under Section 111--3 of the
Code of Criminal Procedure of 1963 (the Code) when the
charging instrument is "in writing, stating the name of the
offense and the relevant statutory provision violated, setting
forth the nature and elements of the offense and the date and
county in which the offense occurred, and naming the accused."
People v. Meyers, 158 Ill. 2d 46, 51, 630 N.E.2d 811, 815
(1994); 725 ILCS 5/111--3 (West 1994). The determination
reached by a trial court on a pretrial motion to dismiss a
charging instrument because it does not comply with section
111--3 of the Code is subject to de novo review. People v.
Smith, 259 Ill. App. 3d 492, 495, 631 N.E.2d 738, 740 (1994);
725 ILCS 5/111--3 (West 1994).
The State argues the trial court's dismissal of the
indictment is contrary to our prior holding in People v.
Kleffman, 90 Ill. App. 3d 1, 412 N.E.2d 1057 (1980). We first
address the appellees' contention that the State has waived
its Kleffman argument on appeal. In support, the appellees
cite Security Savings & Loan Ass'n v. Hoffman, 181 Ill. App.
3d 419, 422, 537 N.E.2d 18, 19 (1989). We find the case
distinguishable. In Hoffman, an argument raised on appeal was
never before presented to the trial court, depriving the trial
court with the opportunity to consider its merits. Hoffman,
181 Ill. App. 3d at 422, 537 N.E.2d at 19. In contrast, the
record demonstrates the State filed written memoranda and
presented oral arguments on Kleffman to the trial court,
sufficiently preserving its Kleffman argument on appeal.
In Kleffman, as in the case at bar, the trial court
granted an accused's pretrial motion to dismiss an indictment
charging the accused with official misconduct because the
indictment failed to conform to the requirements of section
111--3(a) of the Code. Kleffman, 90 Ill. App. 3d 1, 412
N.E.2d 1057; 725 ILCS 5/111--3(a) (West 1994). We reversed
and rejected the accused's argument that facts constituting
official misconduct need to be pled with exacting specificity.
Kleffman, 90 Ill. App. 3d 1, 412 N.E.2d 1057.
In so holding, we recognized that the demand for factual
specificity in a charging instrument is to satisfy the basic
goals of informing the accused of the charge so that he can
prepare a competent defense and protect himself from a future
prosecution for the same offense. Kleffman, 90 Ill. App. 3d
at 5, 412 N.E.2d. at 1061; People v. Banks, 75 Ill. 2d 383,
392, 388 N.E.2d 1244, 1248 (1979). Further, in Kleffman we
relied on our supreme court's statement that when the language
of a statute is sufficient to meet the above goals and the
charging language of an indictment tracks the statutory
language, the requirements of section 111--3(a) of the Code
are met. Kleffman, 90 Ill. App. 3d at 5, 412 N.E.2d. at 1061;
People v. Banks, 75 Ill. 2d 383, 392, 388 N.E.2d 1244, 1248
(1979); 725 ILCS 5/111--3(a) (West 1994).
The official misconduct statute is a malum prohibitum
statute punishing "an act which is not inherently immoral, but
[which] becomes so because its commission is expressly
forbidden by positive law[.]" Black's Law Dictionary 865 (5th
ed. 1979). We recognize that as a malum prohibitum statute,
section 33--3(c) of the Criminal Code of 1961, "standing
alone, does not delineate specific criminal conduct [citations
omitted] but it derives its meaning by specifying an act
described as being 'in excess of [defendant's] lawful
authority'." People v. Samel, 115 Ill. App. 3d 905, 909, 451
N.E.2d 892, 895 (1983); 720 ILCS 5/33--3(c) (West 1994).
With the above principles in mind, we find the trial
court correctly decided that count I of the indictment is
defective because it does not state an act in excess of the
appellees' lawful authority. Count I accuses the appellees of
acting in excess of their lawful authority by accepting
reimbursement for legal expenses incurred as private citizens.
It is not per se an act in excess of a county officer's lawful
authority when he accepts reimbursement from a body of
government for legal expenses incurred as a private citizen.
Thus, count I of the indictment is facially defective because
it fails to plead sufficient facts specifying an act in excess
of the appellees' lawful authority.
Count II of the indictment was dismissed by the trial
court in error. Unlike count I, count II accuses the
appellees of acting in excess of their lawful authority when
they accepted money as reimbursement for legal fees incurred
while in their official capacity "without first having their
legal representative appointed as a Special State's Attorney."
(emphasis added). We find this language sufficiently pleads
an act in excess of the appellees' lawful authority.
A State's Attorney is the statutory attorney for a county
officer who requires legal representation in his official
capacity. Illinois law provides that a State's Attorney has
a duty to "defend all actions and proceedings brought against
*** any county *** officer, in his official capacity, within
his county." 55 ILCS 5/3-9005(a)(4) (West 1994). However,
when the State's Attorney is "interested in any cause or
proceeding, *** which it is or may be his duty to *** defend,
the court may appoint some competent attorney to *** defend
such cause or proceeding." 55 ILCS 5/3--9008 (West 1994).
The record demonstrates the appellees first secured
Margolis as private legal counsel and then filed a petition to
appoint a special prosecutor on November 1, 1994. On November
7, 1994, upon order of the court, the prosecution was removed
from Grundy County and assigned to Will County. Once, the
prosecution was assigned to Will County, the State's Attorney
of Grundy County remained the appellees' statutory counsel
until one of the interested parties petitioned the court to
appoint another attorney to fulfill the Grundy County State's
Attorney's statutory duty to defend an action brought against
a county officer in his official capacity. We do not believe
our view to be impractical. See In re Grand Jury
Investigation of Swan, 92 Ill. App. 3d 856, 862-63, 415 N.E.2d
1354, 1360 (1981).
We are mindful that the practical exigencies of political
life will sometimes preclude an elected official's willing
receipt of legal representation from his statutory attorney
and conversely, a statutory attorney, such as a State's
Attorney, may not wish to represent an elected official he has
accused of a misdeed. While a State's Attorney has a duty to
defend a county officer, a county officer does not have the
concurrent duty to accept such legal representation in his
official capacity. For example, a county officer may choose
to forego statutory representation and act as a private
citizen by procuring counsel, at his own expense, to defend an
action brought against him in his official capacity. However,
Illinois law and its underlying public policy do not impose
this burden. Under Section 3--9008 of the Counties Code
either party may petition the court for relief in the form of
competent counsel to fulfill the State's Attorney's statutory
duty to prosecute or defend a county officer in his official
capacity. 55 ILCS 5/3--9008 (West 1994).
In People v. Clark, 71 Ill. App. 3d 381, 389 N.E.2d 911
(1979), a DuPage County treasurer retained private counsel to
defend him in a criminal prosecution charging him, inter alia,
with official misconduct. Clark, 71 Ill. App. 3d at 392, 389
N.E.2d at 928. Clark's counsel was allowed to withdraw and
Clark petitioned the court to have the State's Attorney or
another attorney appointed for him. Clark, 71 Ill. App. 3d at
404, 406, 389 N.E.2d at 928. The trial court denied the
petition and the appellate court affirmed this decision and
also reversed Clark's conviction for official misconduct.
The court reasoned that Clark was not entitled to
statutory representation because the actions for which he was
accused "were not actions taken by Clark under color of or by
virtue of his public office[.]" Clark, 71 Ill. App. 3d at
406, 389 N.E.2d at 929. Consequently, because Clark was not
acting in his official capacity, the trial court did not abuse
its discretion in refusing to appoint the State's Attorney or
other competent counsel to defend Clark and, his conviction
for official misconduct was reversed. Unlike Clark, the
appellees filed no petition with the court to request the
appointment of an attorney to represent them in their official
capacity or to authorize the appointment of their privately
retained attorney nunc pro tunc.
The appellees contend, however, that the county board was
empowered by section 5--1018 of the Counties Code to indemnify
and reimburse them for their legal fees. 55 ILCS 5/5--1018
(West 1994). This statutory provision limits reimbursement to
county board members for "expenses necessarily incurred while
in the conduct of the business of the county." 55 ILCS 5/5--
1018 (West 1994). Further, "[a] county board may employ ***
professional personnel for the members of the county board ***
and [may] pay for the services of such personnel." 55 ILCS
5/5--1018 (West 1994).
Despite this vested discretion, our court has long held
a county board is not authorized "to employ at public expense
an attorney to perform the duties of State's Attorney."
Abbott v. County of Adams, 214 Ill. App. 201, 203 (1919); see
also Hazen v. County of Peoria, 138 Ill. App. 3d 836, 842-43,
485 N.E.2d 1325, 1330 (1985); Sommer v. Goetze, 102 Ill. App.
3d 117, 119, 429 N.E.2d 901, 903 (1981). We therefore
conclude that under Illinois law, a public official acts in
excess of his lawful authority when he fails to obtain the
court appointment of legal counsel to act as a Special
Assistant State's Attorney and accepts public funds to pay for
that same privately retained legal counsel.
We next consider the language of count II alleging that
the appellees were public officers, i.e., Grundy County board
members. We find this factually sufficient. Next, we
consider whether count II sufficiently alleges that the
appellees acted in their official capacity. We have stated
that one performs an act in his official capacity under
section 33--3(c) of the Criminal Code of 1961, if the act is
"accomplished by exploitation of his position as a public
officer or employee." Kleffman, 90 Ill. App. 3d at 3, 412
N.E.2d at 1060; 720 ILCS 33--3(c) (West 1994).
The appellees argue that by accepting reimbursement they
were not exploiting their official positions since they were
entitled to legal representation in their official capacity
during the grand jury investigation. We do not dispute that
the appellees were entitled to receive legal representation in
their official capacity. However, as we have already
discussed, the appellees were limited to accepting legal
representation in their official capacity, at public expense,
from their statutory attorney or an attorney appointed by the
court to assume this duty. Therefore, count II sufficiently
charges that the appellees received reimbursement for their
legal fees within their official capacity.
A contrary interpretation, such as an interpretation
finding that the appellees accepted money as private citizens,
presents the factual scenario dismissed in count I. The
appellees argue that this result, obtained because count I of
the indictment accuses them of acting in a private capacity
and count II alternatively accuses them of acting in a public
capacity, mandates that the indictment be dismissed because it
is void for duplicity. We do not agree.
An indictment cannot charge an accused with committing
"disparate and alternative acts, either one of which would
constitute an offense." People v. Capitol News, Inc. 137 Ill.
2d 162, 174, 560 N.E.2d 303, 308 (1990). However, count I
does not charge the appellees with an offense. Count I
erroneously charges the appellees with official misconduct
when acting as private citizens. The failure of count I to
charge an offense does not require the dismissal of the entire
indictment; rather, the trial court employed the appropriate
remedy of dismissing the defective charge. See 725 ILCS
5/114--1(a)(8) (West 1994). Neither do we agree that count II
charges the appellees with separate and disparate acts, either
of which could result in a criminal prosecution, when it
distinctly accuses them of a single act of official
misconduct.
Next, we discuss whether count II charges sufficient
facts to demonstrate the appellees acted with the intent to
obtain a personal advantage. 720 ILCS 5/33--3(c) (West 1994).
In Kleffman, we stated "'[p]ersonal advantage' in this context
means an advantage to a particular person as opposed to the
public the officer or employee serves." Kleffman, 90 Ill.
App. 3d at 4, 412 N.E.2d at 1061. Again, the appellees
contend that their entitlement to legal representation removes
their acceptance of $21,120.44 from the reach of the official
misconduct statute. However, count II sufficiently charges
that the appellees acted with the intent to gain a personal
advantage because, without judicial authorization, they chose
their own private attorney and accepted reimbursement for
their legal fees at public expense.
We do not dispute the propriety of a county officer's
statutory right to legal representation. However, when our
legislature has provided for this circumstance through the
allocation of public funds to pay for legal counsel, i.e., the
State's Attorney, "there exists in no man or set of men
outside of the legislature itself the right or authority to
expend, or authorize the expenditure of, other public funds
for the performance of those same duties [of the State's
Attorney]." Abbott, 214 Ill. App. at 206.
We next address the argument that the indictment should
be dismissed pursuant to Fellhauer v. City of Geneva, 142 Ill.
2d 495, 568 N.E.2d 870 (1991). In that case, the plaintiff
recited the official misconduct statute as the basis of his
retaliatory discharge claim. Fellhauer, 142 Ill. 2d at 502,
568 N.E.2d at 873. Plaintiff's complaint was dismissed for
its failure to state a cause of action. Our supreme court
stated that a plaintiff who bases a civil retaliatory
discharge claim on "a charge of official misconduct under
section 33-3 must specify the 'law' allegedly violated by the
officer or employer in the course of committing the offense
*** to demonstrate that his discharge was in contravention
with the law's clearly mandated public policy." Fellhauer,
142 Ill. 2d at 505-06, 568 N.E.2d at 875. We do not find
Fellhauer dispositive. To the extent the appellees rely on
Fellhauer, its reasoning applies to the narrow situation when
a plaintiff brings a retaliatory discharge cause of action
based on the official misconduct statute and not the charging
of a criminal offense by an elected official.
We next summarily address the appellees' additional
arguments in support of their contention that the indictment
should be dismissed. The appellees argue that the indictment
should be dismissed because alleged impropriety by the Grundy
County State's Attorney fatally tainted the grand jury
process. However, as the trial court did not reach this issue
and as the record reveals that no evidentiary hearing was held
on this issue, we are unequipped to decide whether these
alleged actions serve as an independent basis upon which the
indictment may be dismissed.
Similarly, the appellees argue that the State improperly
used immunized testimony when conducting the grand jury
investigation that ultimately returned the two-count
indictment at issue. We note that the appellees received use
immunity when they were subpoenaed to testify before the grand
jury which subsequently returned a no bill. Again, the trial
court did not rule on this issue and no evidentiary hearing
was held because the court dismissed the indictment on other
grounds. Again, we cannot, without a more fully developed
record, consider the merits of this argument.
Finally, the appellees argue that the indictment is the
result of a malicious prosecution because they were the only
members of the county board investigated and indicted for
official misconduct. The appellees cite People v. Barton, 190
Ill. App. 3d 701, 546 N.E.2d 1091 (1989) in support for their
position. In Barton, an indictment was dismissed because of
severe misconduct by a special prosecutor when he
intentionally misled a grand jury, resulting in a violation of
the defendant's right to due process under the law. Barton,
190 Ill. App. 3d at 708-09, 546 N.E.2d at 1096. The record in
the instant case is sparse and devoid of a ruling by a trial
court on this issue. We find no basis in the record or in the
arguments presented to demonstrate prosecutorial misconduct
occurred before the grand jury.
For the foregoing reasons, the trial court's dismissal of
count II is error as a matter of law. The judgment of the
circuit court of Grundy County is affirmed in part and
reversed in part.
Affirmed in part and reversed in part; cause remanded.
MICHELA, J.
SLATER, J., with LYTTON, J., specially concur.
No. 3--95--0775
_____
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 13th Judicial Circuit,
) Grundy County, Illinois,
v. ) No. 95--CF--69
Defendants-Appellees. ) Judge, Presiding.
____
JUSTICE SLATER, specially concurring:
If the defendants in this case were unaware that by
accepting the reimbursement authorized by the county board
they were acting in excess of their authority, could they
nevertheless be convicted of official misconduct? While the
statute does not require that one knowingly act in excess of
one's authority, should that mental state be implied as a
matter of statutory construction? If so, the indictment
should be dismissed for failing to allege a necessary element
of the offense. See People v. Valley Steel Products Co., 71
Ill. 2d 408, 375 N.E.2d 1297 (1978) (dismissing indictment for
failure to allege implied mental state); People v. Grant, 101
Ill. App. 3d 43, 427 N.E.2d 810 (1981) (same); People v.
Malone, 71 Ill. App. 3d 231, 389 N.E.2d 908 (1979) (same).
However, in People v. Scharlau, 141 Ill. 2d 180, 199, 565
N.E.2d 1319, 1328 (1990), our supreme court, in reference to
the official misconduct statute, stated "[k]nowledge that the
action in question violates the statute by being outside the
officer's lawful authority is not an element." In view of
this unambiguous statement, dismissal in this case for failure
to allege a mental state appears foreclosed. The argument
that section 33-3(c) requires an implied mental state was not
directly raised in Scharlau, nor was it presented in this
case. I believe that if this issue was squarely presented to
our supreme court, it would find that a mental state is
required. To hold otherwise would risk "creat[ing] a felony
out of conduct that was wholly innocent." People v. Tolliver,
147 Ill. 2d 397, 401, 589 N.E.2d 527, 529 (1992). Given that
official misconduct is a class 3 felony punishable by
forfeiture of office and a potential prison sentence of 2-5
years, such a result should not be countenanced. "It would be
unthinkable to subject a person to a long term of imprisonment
for an offense he might commit unknowingly." Valley Steel, 71
Ill. 2d at 425, 375 N.E.2d at 1305. See also People v.
Farmer, 165 Ill. 2d 194, 650 N.E.2d 1006 (1995) (finding that
offense of possessing contraband in a penal institution
required implied mental state of knowledge).
I would also emphasize that defendants' arguments
regarding alleged improprieties by the Grundy County State's
Attorney and the improper use of immunized testimony are not
resolved by this decision. No evidentiary hearing was held,
nor did the trial court rule on those matters. Therefore they
are, at this time, not ripe for review, and may be considered
by the trial court on remand.
Finally, in my opinion, the only "crime" committed in
this case was the failure to ask the court to appoint Jeremy
Margolis as a Special State's Attorney. It is absolutely
clear that the Grundy County States Attorney could not
properly defend the board members after he had sought to have
them indicted. In its February 14 indemnification resolution,
the county board authorized defendant Kaufmann to hire
Margolis and it requested the court to appoint him as a
Special States Attorney. No petition was filed with the
court, and therefore reimbursing the defendants for legal
expenses was technically in excess of the board's authority.
I reluctantly concur.
LYTTON, J., concurs.