HB3355ham002 100TH GENERAL ASSEMBLY

Rep. Elgie R. Sims, Jr.

Filed: 4/27/2017

10000HB3355ham002 LRB100 08485 AWJ 25576 a

AMENDMENT TO HOUSE BILL 3355

AMENDMENT NO. ______. Amend House Bill 3355, AS AMENDED, by inserting immediately below the enacting clause the following:

"Section 3. The Counties Code is amended by changing Section 3-9008 as follows:

(55 ILCS 5/3-9008) (from Ch. 34, par. 3-9008)

Sec. 3-9008. Appointment of attorney to perform duties.

(a) (Blank).

(a-5) The court on its own motion, or an interested person in a cause or proceeding, civil or criminal, may file a petition alleging that the State's Attorney is sick, absent, or unable to fulfill his or her duties. The court shall consider the petition, any documents filed in response, and if necessary, grant a hearing to determine whether the State's Attorney is sick, absent, or otherwise unable to fulfill his or her duties. If the court finds that the State's Attorney is sick, absent, or otherwise unable to fulfill his or her duties, the court may appoint some competent attorney to prosecute or defend the cause or proceeding.

(a-10) The court on its own motion, or an interested person in a cause or proceeding, civil or criminal, may file a petition alleging that the State's Attorney has an actual conflict of interest in the cause or proceeding. 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 or proceeding. 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 or proceeding.

(a-15) Notwithstanding subsections (a-5) and (a-10) of this Section, the State's Attorney may file a petition to recuse himself or herself from a cause or proceeding for any other reason he or she deems appropriate and the court shall appoint a special prosecutor as provided in this Section.

(a-17) In a county exceeding a population of 3,000,000, if the court determines that the appointment of a special prosecutor is required under subsection (a-10) or (a-15), the court shall request the Office of the State's Attorneys Appellate Prosecutor to serve as the special prosecutor where the cause or proceeding is an officer-involved death, as that term is defined in Section 1-5 of the Police and Community Relations Improvement Act. If the Office of the State's Attorneys Appellate Prosecutor accepts the request, the State's Attorneys Appellate Prosecutor shall be appointed by the court and shall have the same power and authority in relation to the cause or proceeding as the State's Attorney would have had if present and attending to the cause or proceedings.

(a-20) Except as provided in subsection (a-17), prior Prior to appointing a private attorney under this Section, the court shall contact public agencies, including, but not limited to, the Office of Attorney General, Office of the State's Attorneys Appellate Prosecutor, or local State's Attorney's Offices throughout the State, to determine a public prosecutor's availability to serve as a special prosecutor at no cost to the county and shall appoint a public agency if they are able and willing to accept the appointment. An attorney so appointed shall have the same power and authority in relation to the cause or proceeding as the State's Attorney would have if present and attending to the cause or proceedings.

(b) In case of a vacancy of more than one year occurring in any county in the office of State's attorney, by death, resignation or otherwise, and it becomes necessary for the transaction of the public business, that some competent attorney act as State's attorney in and for such county during the period between the time of the occurrence of such vacancy and the election and qualification of a State's attorney, as provided by law, the vacancy shall be filled upon the written request of a majority of the circuit judges of the circuit in which is located the county where such vacancy exists, by appointment as provided in The Election Code of some competent attorney to perform and discharge all the duties of a State's attorney in the said county, such appointment and all authority thereunder to cease upon the election and qualification of a State's attorney, as provided by law. Any attorney appointed for any reason under this Section shall possess all the powers and discharge all the duties of a regularly elected State's attorney under the laws of the State to the extent necessary to fulfill the purpose of such appointment, and shall be paid by the county he serves not to exceed in any one period of 12 months, for the reasonable amount of time actually expended in carrying out the purpose of such appointment, the same compensation as provided by law for the State's attorney of the county, apportioned, in the case of lesser amounts of compensation, as to the time of service reasonably and actually expended. The county shall participate in all agreements on the rate of compensation of a special prosecutor.

(c) An order granting authority to a special prosecutor must be construed strictly and narrowly by the court. The power and authority of a special prosecutor shall not be expanded without prior notice to the county. In the case of the proposed expansion of a special prosecutor's power and authority, a county may provide the court with information on the financial impact of an expansion on the county. Prior to the signing of an order requiring a county to pay for attorney's fees or litigation expenses, the county shall be provided with a detailed copy of the invoice describing the fees, and the invoice shall include all activities performed in relation to the case and the amount of time spent on each activity.

(Source: P.A. 99-352, eff. 1-1-16.)"; and

by inserting immediately below Section 40 the following:

"Section 43. The State's Attorneys Appellate Prosecutor's Act is amended by changing Section 4.01 as follows:

(725 ILCS 210/4.01) (from Ch. 14, par. 204.01)

Sec. 4.01. (a) The Office and all attorneys employed thereby may represent the People of the State of Illinois on appeal in all cases which emanate from a county containing less than 3,000,000 inhabitants, when requested to do so and at the direction of the State's Attorney, otherwise responsible for prosecuting the appeal, and may, with the advice and consent of the State's Attorney prepare, file and argue such appellate briefs in the Illinois Appellate Court and, when requested and authorized to do so by the Attorney General, in the Illinois Supreme Court.

(b) Notwithstanding the population restriction contained in subsection (a), the The Office may also assist County State's Attorneys in the discharge of their duties under the Illinois Controlled Substances Act, the Cannabis Control Act, the Methamphetamine Control and Community Protection Act, the Drug Asset Forfeiture Procedure Act, the Narcotics Profit Forfeiture Act, and the Illinois Public Labor Relations Act, including negotiations conducted on behalf of a county or pursuant to an intergovernmental agreement as well as in the trial and appeal of said cases and of tax objections, and the counties which use services relating to labor relations shall reimburse the Office on pro-rated shares as determined by the board based upon the population and number of labor relations cases of the participating counties. In addition, the Office and all attorneys employed by the Office may also assist State's Attorneys in the discharge of their duties in the prosecution, trial, or hearing on post-conviction of other cases when requested to do so by, and at the direction of, the State's Attorney otherwise responsible for the case. In addition, the Office and all attorneys employed by the Office may act as Special Prosecutor if duly appointed to do so by a court having jurisdiction. Except when the appointment of a Special Prosecutor is made pursuant to subsection (a-17) of Section 3-9008 of the Counties Code, to To be effective, the order appointing the Office or its attorneys as Special Prosecutor must (i) identify the case and its subject matter and (ii) state that the Special Prosecutor serves at the pleasure of the Attorney General, who may substitute himself or herself as the Special Prosecutor when, in his or her judgment, the interest of the people of the State so requires. Within 5 days after receiving a copy of an order from the court appointing the Office or any of its attorneys as a Special Prosecutor, the Office must forward a copy of the order to the Springfield office of the Attorney General.

(Source: P.A. 97-1012, eff. 8-17-12.)".