Full Text of HB5858 103rd General Assembly
HB5858 103RD GENERAL ASSEMBLY | | | 103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024 HB5858 Introduced 5/25/2024, by Rep. Dan Ugaste SYNOPSIS AS INTRODUCED: | | 55 ILCS 5/3-9008 | from Ch. 34, par. 3-9008 | 55 ILCS 5/3-9014 new | |
| Amends the Counties Code. Establishes a procedure for an election to recall a State's Attorney in counties with a population over 2,000,000 and to elect the recalled State's Attorney's successor. Effective immediately. |
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| | A BILL FOR |
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| 1 | | AN ACT concerning local government. | 2 | | Be it enacted by the People of the State of Illinois, | 3 | | represented in the General Assembly: | 4 | | Section 5. The Counties Code is amended by changing | 5 | | Section 3-9008 and by adding Section 3-9014 as follows: | 6 | | (55 ILCS 5/3-9008) (from Ch. 34, par. 3-9008) | 7 | | Sec. 3-9008. Appointment of attorney to perform duties. | 8 | | (a) (Blank). | 9 | | (a-5) The court on its own motion, or an interested person | 10 | | in a cause or proceeding, civil or criminal, may file a | 11 | | petition alleging that the State's Attorney is sick, absent, | 12 | | or unable to fulfill the State's Attorney's duties. The court | 13 | | shall consider the petition, any documents filed in response, | 14 | | and if necessary, grant a hearing to determine whether the | 15 | | State's Attorney is sick, absent, or otherwise unable to | 16 | | fulfill the State's Attorney's duties. If the court finds that | 17 | | the State's Attorney is sick, absent, or otherwise unable to | 18 | | fulfill the State's Attorney's duties, the court may appoint | 19 | | some competent attorney to prosecute or defend the cause or | 20 | | proceeding. | 21 | | (a-10) The court on its own motion, or an interested | 22 | | person in a cause, proceeding, or other matter arising under | 23 | | the State's Attorney's duties, civil or criminal, may file a |
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| 1 | | petition alleging that the State's Attorney has an actual | 2 | | conflict of interest in the cause, proceeding, or other | 3 | | matter. The court shall consider the petition, any documents | 4 | | filed in response, and if necessary, grant a hearing to | 5 | | determine whether the State's Attorney has an actual conflict | 6 | | of interest in the cause, proceeding, or other matter. If the | 7 | | court finds that the petitioner has proven by sufficient facts | 8 | | and evidence that the State's Attorney has an actual conflict | 9 | | of interest in a specific case, the court may appoint some | 10 | | competent attorney to prosecute or defend the cause, | 11 | | proceeding, or other matter. | 12 | | (a-15) Notwithstanding subsections (a-5) and (a-10) of | 13 | | this Section, the State's Attorney may file a petition to | 14 | | recuse the State's Attorney from a cause or proceeding for any | 15 | | other reason the State's Attorney deems appropriate and the | 16 | | court shall appoint a special prosecutor as provided in this | 17 | | Section. | 18 | | (a-20) Prior to appointing a private attorney under this | 19 | | Section, the court shall contact public agencies, including, | 20 | | but not limited to, the Office of Attorney General, Office of | 21 | | the State's Attorneys Appellate Prosecutor, or local State's | 22 | | Attorney's Offices throughout the State, to determine a public | 23 | | prosecutor's availability to serve as a special prosecutor at | 24 | | no cost to the county and shall appoint a public agency if they | 25 | | are able and willing to accept the appointment. An attorney so | 26 | | appointed shall have the same power and authority in relation |
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| 1 | | to the cause or proceeding as the State's Attorney would have | 2 | | if present and attending to the cause or proceedings. | 3 | | (b) In case of (i) a vacancy of more than one year | 4 | | occurring in any county in the office of State's attorney, by | 5 | | death, resignation or otherwise, and it becomes necessary for | 6 | | the transaction of the public business, that some competent | 7 | | attorney act as State's attorney in and for such county during | 8 | | the period between the time of the occurrence of such vacancy | 9 | | and the election and qualification of a State's attorney, as | 10 | | provided by law, or (ii) a vacancy that has occurred as | 11 | | provided in paragraph (i) of subsection (f) of Section 3-9014, | 12 | | the vacancy shall be filled upon the written request of a | 13 | | majority of the circuit judges of the circuit in which is | 14 | | located the county where such vacancy exists, by appointment | 15 | | as provided in the Election Code of some competent attorney to | 16 | | perform and discharge all the duties of a State's attorney in | 17 | | the said county, such appointment and all authority thereunder | 18 | | to cease upon the election and qualification of a State's | 19 | | attorney, as provided by law. Any attorney appointed for any | 20 | | reason under this Section shall possess all the powers and | 21 | | discharge all the duties of a regularly elected State's | 22 | | attorney under the laws of the State to the extent necessary to | 23 | | fulfill the purpose of such appointment, and shall be paid by | 24 | | the county the State's Attorney serves not to exceed in any one | 25 | | period of 12 months, for the reasonable amount of time | 26 | | actually expended in carrying out the purpose of such |
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| 1 | | appointment, the same compensation as provided by law for the | 2 | | State's attorney of the county, apportioned, in the case of | 3 | | lesser amounts of compensation, as to the time of service | 4 | | reasonably and actually expended. The county shall participate | 5 | | in all agreements on the rate of compensation of a special | 6 | | prosecutor. | 7 | | (c) An order granting authority to a special prosecutor | 8 | | must be construed strictly and narrowly by the court. The | 9 | | power and authority of a special prosecutor shall not be | 10 | | expanded without prior notice to the county. In the case of the | 11 | | proposed expansion of a special prosecutor's power and | 12 | | authority, a county may provide the court with information on | 13 | | the financial impact of an expansion on the county. Prior to | 14 | | the signing of an order requiring a county to pay for | 15 | | attorney's fees or litigation expenses, the county shall be | 16 | | provided with a detailed copy of the invoice describing the | 17 | | fees, and the invoice shall include all activities performed | 18 | | in relation to the case and the amount of time spent on each | 19 | | activity. | 20 | | (Source: P.A. 102-56, eff. 7-9-21; 102-657, eff. 1-1-22; | 21 | | 102-813, eff. 5-13-22.) | 22 | | (55 ILCS 5/3-9014 new) | 23 | | Sec. 3-9014. State's Attorney Recall. | 24 | | (a) As used in this Section: | 25 | | "Chief proponent" means the person whose name and |
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| 1 | | signature is on the affidavit of intent initiating the recall | 2 | | process. | 3 | | "Proponent county" means the county where the chief | 4 | | proponent is a resident. | 5 | | "Proponent county clerk" means the county clerk of the | 6 | | proponent county. | 7 | | (b) This Section applies to counties with a population | 8 | | over 2,000,000. | 9 | | (c) The recall of an elected State's Attorney may be | 10 | | initiated by filing, in the proponent county, an affidavit of | 11 | | intent to circulate a petition to recall the State's Attorney | 12 | | of that county and filing a certified copy of the affidavit in | 13 | | all other counties in which the State's Attorney is elected to | 14 | | serve. The affidavit may be filed no sooner than 6 months after | 15 | | the beginning of the State's Attorney's term of office. The | 16 | | affidavit shall contain (i) the name and title of the State's | 17 | | Attorney to be recalled, (ii) a statement, not exceeding 200 | 18 | | words in length, of the reasons for the proposed recall, and | 19 | | (iii) the printed name, signature, and residential address of | 20 | | the chief proponent, who shall be a registered voter and | 21 | | qualified to vote for the office of State's Attorney in the | 22 | | proponent county. The chief proponent shall publish a copy of | 23 | | the affidavit of intent in an English language newspaper of | 24 | | general circulation in each county in which the State's | 25 | | Attorney serves. If no newspaper is in general circulation in | 26 | | a county, the chief proponent shall post a copy of the |
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| 1 | | affidavit of intent in at least 3 public places in that county. | 2 | | Not more than 150 days after the affidavit of intent has | 3 | | been filed, a petition to recall the State's Attorney shall be | 4 | | filed in the proponent county and a certified copy of the | 5 | | petition shall be filed in all other counties in which the | 6 | | State's Attorney is elected to serve. The petition shall be | 7 | | signed by a number of electors equal in number to at least 5% | 8 | | of the total votes cast for the office of State's Attorney in | 9 | | the preceding election in all counties in which the State's | 10 | | Attorney is elected to serve. All electors signing a recall | 11 | | petition must be registered voters who, based on their | 12 | | residence, are qualified to vote for the office of State's | 13 | | Attorney in the county or counties in which the State's | 14 | | Attorney serves. | 15 | | The following must be included in a recall petition filed | 16 | | under this subsection: | 17 | | (1) The name and title of the State's Attorney to be | 18 | | recalled under the petition. | 19 | | (2) The statement of the reasons for the proposed | 20 | | recall contained in the affidavit of intent. | 21 | | (3) The printed name, signature, and residential | 22 | | address of each elector signing the recall petition. | 23 | | No later than 7 days after the filing of a recall petition, | 24 | | the State's Attorney may file an answer, including any | 25 | | statement of defense, against the recall attempt. The answer | 26 | | may not exceed 200 words in length. The answer shall be filed |
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| 1 | | in the proponent county and a certified copy of the answer | 2 | | shall be filed in all other counties in which the State's | 3 | | Attorney is elected to serve. | 4 | | (d) The county clerk shall certify the petition to the | 5 | | proper election authority or authorities not more than 7 days | 6 | | after the date the petition was filed, and the question "Shall | 7 | | (name of State's Attorney) be recalled from the office of | 8 | | State's Attorney?" must be submitted to the electors of each | 9 | | county in which the State's Attorney is elected to serve at a | 10 | | special recall election called by the proponent county clerk | 11 | | to occur not more than 60 days after certification of the | 12 | | petition. A recall petition certified by the county clerk may | 13 | | not be withdrawn. | 14 | | (e) If a recall petition has been filed with the proponent | 15 | | county clerk, a person eligible to serve as State's Attorney | 16 | | may propose his or her candidacy for the special successor | 17 | | primary election by a successor candidate petition signed by | 18 | | at least 5% of the total votes cast for the office of State's | 19 | | Attorney in the preceding election in the proponent county, | 20 | | signed not more than 50 days after a recall petition has been | 21 | | filed with the proponent county clerk. Each elector signing | 22 | | the special successor candidate petition must be a registered | 23 | | voter in the proponent county or one of the counties in which | 24 | | the State's Attorney is elected to serve. The successor | 25 | | candidate petition shall be filed in the proponent county and | 26 | | a certified copy of the petition shall be filed in all other |
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| 1 | | counties in which the State's Attorney is elected to serve. A | 2 | | successor candidate petition and the procedures concerning | 3 | | successor candidate petitions shall conform in all other | 4 | | respects to the provisions of the election and ballot laws | 5 | | then in force in the proponent county concerning the | 6 | | nomination of independent candidates for public office by | 7 | | petition. The proponent county clerk shall certify the | 8 | | petition not more than 60 days after the date the petition to | 9 | | recall the State's Attorney was filed. | 10 | | (f) The State's Attorney who is the subject of the | 11 | | petition is immediately removed from office upon certification | 12 | | of the special recall election results if a majority of the | 13 | | electors voting on the question vote to recall the State's | 14 | | Attorney. If the State's Attorney is removed, then the | 15 | | following shall occur: (i) if no successor candidate petition | 16 | | has been certified by the proponent county clerk within the | 17 | | times required by subsection (e), then a vacancy in the office | 18 | | of State's Attorney is created and a replacement State's | 19 | | Attorney shall be appointed as provided in subsection (b) of | 20 | | Section 3-9008; or (ii) if at least one successor candidate | 21 | | petition has been certified by the proponent county clerk | 22 | | within the times required by subsection (e), then a special | 23 | | successor primary election or special runoff election shall be | 24 | | held pursuant to subsection (g) to determine the successor | 25 | | State's Attorney. | 26 | | (g) If the State's Attorney is removed by the special |
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| 1 | | recall election, then the names of candidates certified under | 2 | | subsection (e) for State's Attorney must be submitted to the | 3 | | electors of each county previously served by the removed | 4 | | State's Attorney at a special successor primary election | 5 | | called by the proponent county clerk to be held no later than | 6 | | 60 days after the special recall election. The candidate | 7 | | receiving the highest number of votes at the special successor | 8 | | primary election shall be declared elected, and he or she | 9 | | shall serve the remaining portion of the recalled State's | 10 | | Attorney's term. | 11 | | If no candidate receives a majority of the total votes in | 12 | | the special successor primary election, then a special runoff | 13 | | election shall be called by the proponent county clerk and | 14 | | held no later than 60 days after the special successor primary | 15 | | election, and only the names of the candidates receiving the | 16 | | highest and second-highest number of votes at the special | 17 | | successor primary election shall appear on the special runoff | 18 | | election ballot. If more than one candidate received the | 19 | | highest or second-highest number of votes at the special | 20 | | successor primary election, the names of all candidates | 21 | | receiving the highest and second-highest number of votes shall | 22 | | appear on the ballot at the special runoff election. The | 23 | | candidate receiving the highest number of votes at the special | 24 | | runoff election shall be declared elected, and he or she shall | 25 | | serve the remaining portion of the recalled State's Attorney's | 26 | | term. |
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| 1 | | If the State's Attorney is removed by the special recall | 2 | | election and the special successor primary election or the | 3 | | special runoff election has not occurred before the date of | 4 | | the general election at which the State's Attorney is to be | 5 | | elected, no special successor primary election or special | 6 | | runoff shall occur and the recalled State's Attorney shall be | 7 | | replaced by the person elected at the general election. | 8 | | (h) A recall may not be initiated against a State's | 9 | | Attorney under this Section: | 10 | | (1) during the 6 months after a recall election failed | 11 | | to remove the State's Attorney; | 12 | | (2) if the State's Attorney has less than 6 months | 13 | | remaining before his or her term ends; or | 14 | | (3) if an affidavit of intent or recall petition has | 15 | | already been filed and is pending to recall the State's | 16 | | Attorney. | 17 | | (i) An affidavit of intent is void if no recall petition | 18 | | has been filed within 150 days after the affidavit of intent is | 19 | | filed. If a recall election has not occurred before the date of | 20 | | the next general election at which the State's Attorney is | 21 | | elected, then the recall petition is void. | 22 | | (j) Except as provided in this Section, the form of the | 23 | | affidavit and petitions and the procedure for circulation of | 24 | | the petitions shall be as otherwise provided by law. | 25 | | (k) If this Section conflicts with any other provision of | 26 | | law, this Section controls notwithstanding the other provision |
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| 1 | | of law. | 2 | | Section 99. Effective date. This Act takes effect upon | 3 | | becoming law. |
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