{ "id": 3628131, "name": "THE PEOPLE ex rel. MICHAEL RAY YORK et al., Petitioners-Appellees v. ALAN C. DOWNEN, Hamilton County State's Attorney, Respondent-Appellant", "name_abbreviation": "People ex rel. York v. Downen", "decision_date": "1983-11-04", "docket_number": "No. 83\u2014295", "first_page": "29", "last_page": "34", "citations": [ { "type": "official", "cite": "119 Ill. App. 3d 29" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "321 N.E.2d 531", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "24 Ill. App. 3d 833", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5308469 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/24/0833-01" ] }, { "cite": "412 N.E.2d 15", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "89 Ill. App. 3d 712", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5540871 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0712-01" ] }, { "cite": "103 S. Ct. 1442", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1980, "opinion_index": 0 }, { "cite": "75 L. Ed. 2d 798", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1980, "opinion_index": 0 }, { "cite": "437 N.E.2d 804", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "107 Ill. App. 3d 487", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3021615 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/107/0487-01" ] }, { "cite": "372 N.E.2d 50", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "69 Ill. 2d 394", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5456424 ], "opinion_index": 0, "case_paths": [ "/ill-2d/69/0394-01" ] }, { "cite": "415 N.E.2d 1354", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1360" } ], "opinion_index": 0 }, { "cite": "92 Ill. App. 3d 856", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5535363 ], "weight": 2, "pin_cites": [ { "page": "863" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/92/0856-01" ] }, { "cite": "257 Ill. App. 220", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3261955 ], "opinion_index": 0, "case_paths": [ "/ill-app/257/0220-01" ] }, { "cite": "356 N.E.2d 195", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1930, "opinion_index": 0 }, { "cite": "42 Ill. App. 3d 176", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2640676 ], "year": 1930, "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0176-01" ] } ], "analysis": { "cardinality": 549, "char_count": 10827, "ocr_confidence": 0.723, "pagerank": { "raw": 1.0002179767688143e-07, "percentile": 0.5386545702085334 }, "sha256": "24baae33b5dfb6f7d96935f0c7e7ede9e8714f978181e28f7361ce552017076b", "simhash": "1:69a5b1e8acd77eb5", "word_count": 1744 }, "last_updated": "2023-07-14T17:31:44.831415+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE ex rel. MICHAEL RAY YORK et al., Petitioners-Appellees v. ALAN C. DOWNEN, Hamilton County State\u2019s Attorney, Respondent-Appellant." ], "opinions": [ { "text": "JUSTICE WELCH\ndelivered the opinion of the court:\nRespondent Alan Downen, State\u2019s Attorney of Hamilton County, appeals from an order of the circuit court of that county enjoining him from conducting a grand jury investigation into alleged election irregularities occurring in connection with the general election held November 2, 1982. That order also appointed the Attorney General of the State of Illinois as a special prosecutor for the purposes of conducting such an investigation. The respondent\u2019s assignments of error are that (1) the trial court erred in denying his motion for a change of venue as a matter of right, (2) the petition and the evidence in support of it were insufficient to justify the appointment of a special prosecutor, and (3) the injunction issued was overly broad. Because we agree that the petitioners have not established cause to appoint a special prosecutor, we reverse the court\u2019s order and need not consider the remaining issues.\nThe alleged election irregularities which are the subject of this litigation have to do with the casting of approximately 700 absentee ballots in the 1982 general election. After that election took place, the respondent was contacted by the Illinois State Board of Elections, who alerted him to the possibility of those irregularities. The respondent, in turn, contacted the Illinois Department of Criminal Investigation, which sent several agents to Hamilton County to investigate the casting of absentee ballots. A suit was filed in the circuit court of Hamilton County, captioned Illinois State Board of Elections and Alan Downen v. Lovella Craddock. This suit, against the county clerk of Hamilton County, sought impoundment of the absentee ballots. Those ballots were still under impoundment at the time of the hearing on the instant petition.\nIn February 1983, the respondent filed a petition with the circuit court to convene a grand jury. One of the areas of investigation by this grand jury was to be the alleged voting irregularities. That grand jury was scheduled to meet on April 18, 1983. This litigation began with the filing of a petition by certain voters and residents of Hamilton County on April 11. The petitioners averred that the respondent was \u201cinterested in any cause of [sic] proceedings, civil or criminal, which may arise concerning the General Election held November 2, 1982,\u201d and requested the appointment of a special prosecutor pursuant to section 6 of \u201cAn Act in regard to attorneys general and state\u2019s attorneys\u201d (Ill. Rev. Stat. 1981, ch. 14, par. 6).\nThe respondent asserts that the petition was insufficient as a matter of law, for it did not identify a pending cause of action from which he could have been disqualified. While section 6 (Ill. Rev. Stat. 1981, ch. 14, par. 6) only refers to the appointment of special prosecutors in pending cases, this does not mean that the circuit court is limited to those circumstances in appointing a prosecutor. These principles are explained in In re Appointment of Special State\u2019s Attorneys (1976), 42 Ill. App. 3d 176, 356 N.E.2d 195, and Wilson v. County of Marshall (1930), 257 Ill. App. 220, and there is no need to repeat them here.\nSection 6 of \u201cAn Act in regard to attorneys general and state's attorneys\u201d authorizes the appointment of a special prosecutor if the State\u2019s Attorney \u201cis interested in any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend.\u201d (Ill. Rev. Stat. 1981, ch. 14, par. 6.) The petition filed in these proceedings lists two categories of conflicts which, it is asserted, preclude the respondent from calling for the grand jury investigation into the alleged voting irregularities., First, the petitioners contended, and the court so found, that the statutory duty of the respondent to give legal advice to county officials such as the county clerk (Ill. Rev. Stat. 1981, ch. 14, par. 5) gave rise to an attorney-client relationship between the respondent and the clerk, and thus to a conflict of interest. Second, the petitioners referred to certain irregularities in the absentee ballots cast by the respondent\u2019s grandmother and ex-wife. This category of allegations was not mentioned in the court\u2019s order.\nWe cannot agree that the respondent\u2019s capacity as advisor to the county clerk gives rise to a conflict of interest requiring the appointment of a special prosecutor. In In re Grand Jury Investigation of Swan (1981), 92 Ill. App. 3d 856, 415 N.E.2d 1354, it was held that a State\u2019s Attorney was not disqualified from investigating alleged misconduct involving a township official merely because the State\u2019s Attorney represented that official in several pending suits, in the State\u2019s Attorney\u2019s capacity as attorney for the county board. To disqualify the State\u2019s Attorney from conducting such an investigation would \u201crequire the appointment of a special prosecutor in every investigation of official misconduct involving county officials.\u201d (In re Grand Jury Investigation of Swan (1981), 92 Ill. App. 3d 856, 863, 415 N.E.2d 1354, 1360.) The Swan court rejected such a result, and so do we.\nNor have the petitioners produced specific evidence which would establish that the respondent\u2019s convening of a grand jury to investigate a subject which might involve the county clerk would present a conflict of interest. Both the respondent and Ms. Craddock, the county clerk, testified that they had had discussions concerning the conduct of the general election, but neither could recall the exact times or subjects of those conversations. The respondent stated that he had probably talked about the absentee ballots with Ms. Craddock some time after he was contacted by the State Board of Elections. However, as the respondent correctly maintains, this evidence shows no more than that he was fulfilling his statutory duty to provide legal advice to county officials. As such, no conflict has been established, according to Swan. See also Environmental Protection Agency v. Pollution Control Board (1977), 69 Ill. 2d 394, 372 N.E.2d 50.\nFurthermore, the existence of the impoundment suit fails to present a conflict of interest. This action neither renders him interested in the outcome of an investigation as a private individual, nor places him in the status of a party to any action arising from an investigation, except in his capacity as a prosecutor. (People v. Trolia (1982), 107 Ill. App. 3d 487, 437 N.E.2d 804, cert, denied (1983),_ U.S._, 75 L. Ed. 2d 798, 103 S. Ct. 1442; People v. Lynn (1980), 89 Ill. App. 3d 712, 412 N.E.2d 15.) The impoundment suit is merely an adjunct to the investigation of the Department of Criminal Investigation and was designed to facilitate the grand jury proceedings. It would be incongruous to create a conflict of interest due to a State\u2019s Attorney\u2019s filing of an action against county officials in order to preserve evidence. To the extent that the trial court held otherwise, and found a conflict of interest arising from the respondent\u2019s connections with the county clerk, it was in error.\nFinally, the evidence presented at the hearing on the petition did not support the petitioners\u2019 claims that actions taken on the absentee ballots cast by the respondent\u2019s grandmother and ex-wife made the respondent personally interested in the proposed grand jury investigation. The petitioners did introduce testimony which showed that the absentee ballot of the respondent\u2019s grandmother, Ethel Downen, was disallowed because the signature on the ballot did not match the official handwriting exemplar. Curtis Downen, the respondent\u2019s father, stated at the hearing on the petition that Ethel Downen was 94 years old and occasionally had difficulty writing. He transacted business for her pursuant to a written power of attorney. When Ethel Downen voted in the 1982 general election, Curtis Downen was present. They discussed the candidates, and then Curtis marked the ballot as Ethel had indicated, signed it and mailed it to the county clerk\u2019s office. That day, Ethel Downen was unable to sign her own name.\nAt the hearing, the petitioners presented no evidence relating to the absentee ballot cast by the respondent\u2019s ex-wife, Ava Downen. However, in the petition, it was alleged that \u201cthere is reason to believe\u201d that, at the time she voted, she was not a bona fide resident at the address listed on her absentee ballot application. Ava Downen testified that her divorce from the respondent became final in August and September of 1982, and in late August or early September, she moved to the house of her mother; in DuQuoin. After moving to Du-Quoin, Ava Downen did not live at the respondent\u2019s McLeansboro address for any period of time. Nonetheless, she testified that even after the divorce became final, she intended to return and reside at that address, if she and the respondent were able to \u201cwork things out.\u201d To that end, she and the respondent were still seeing a marriage counselor in late October. Ava Downen stated that the last of her personal possessions were removed from the respondent\u2019s home in December 1982.\nThese facts do not give rise to a conflict of interest on the part of the respondent. The possibility that any investigation into alleged voting irregularities would disclose wrongdoing on the part of Ethel Downen or Ava Downen is extremely speculative, in view of the evidence introduced by the respondent at the hearing on the petition. A special prosecutor may not be appointed solely because of the suspicions or speculations of the petitioners (People ex rel. Baughman v. Eaton (1974), 24 Ill. App. 3d 833, 321 N.E.2d 531), and the allegations concerning the respondent\u2019s grandmother and ex-wife are simply that.\nIn conclusion, we hold that neither the respondent\u2019s connections with the county clerk nor the ballots cast by his grandmother and ex-wife provide grounds for the appointment of a special prosecutor. Any other allegations in the petition were entirely unsupported by evidence at the hearing. The respondent was doing nothing but pursuing his duties in a proper manner. For these reasons, the circuit court of Hamilton County abused its discretion in granting the relief requested by the petitioners. Accordingly, the order of that court appointing the Attorney General as special prosecutor is reversed, and the injunction against the respondent\u2019s conducting an investigation is dissolved.\nOrder reversed; injunction dissolved.\nHARRISON, P.J., and EARNS, J., concur.", "type": "majority", "author": "JUSTICE WELCH" } ], "attorneys": [ "Alan C. Downen, State\u2019s Attorney, of McLeansboro, for appellant, pro se.", "Charles M. Given, of Mt. Vernon, for appellees." ], "corrections": "", "head_matter": "THE PEOPLE ex rel. MICHAEL RAY YORK et al., Petitioners-Appellees v. ALAN C. DOWNEN, Hamilton County State\u2019s Attorney, Respondent-Appellant.\nFifth District\nNo. 83\u2014295\nOpinion filed November 4, 1983.\nRehearing denied December 5, 1983.\nAlan C. Downen, State\u2019s Attorney, of McLeansboro, for appellant, pro se.\nCharles M. Given, of Mt. Vernon, for appellees." }, "file_name": "0029-01", "first_page_order": 51, "last_page_order": 56 }