{ "id": 3350236, "name": "In re PETITION OF JILL McNULTY et al.-(THE PEOPLE OF THE STATE OF ILLINOIS, Objector.)", "name_abbreviation": "In re McNulty", "decision_date": "1978-05-18", "docket_number": "No. 77-375", "first_page": "701", "last_page": "706", "citations": [ { "type": "official", "cite": "60 Ill. App. 3d 701" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "350 F. 2d 806", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 467082 ], "opinion_index": 0, "case_paths": [ "/f2d/350/0806-01" ] }, { "cite": "363 F. 2d 87", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 815626 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/f2d/363/0087-01" ] }, { "cite": "482 F. 2d 768", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3591824, 1322695 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/us-app-dc/157/0179-01", "/f2d/482/0768-01" ] }, { "cite": "297 N.E.2d 307", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "11 Ill. App. 3d 666", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2926455 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0666-01" ] }, { "cite": "184 Ill. App. 638", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2842314 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app/184/0638-01" ] }, { "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": "114 N.E.2d 785", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "415 Ill. 499", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2684689 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill/415/0499-01" ] }, { "cite": "300 N.E.2d 321", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "323" } ], "opinion_index": 0 }, { "cite": "13 Ill. App. 3d 787", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5345477 ], "weight": 3, "pin_cites": [ { "page": "790" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/0787-01" ] }, { "cite": "92 N.E. 291", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1973, "opinion_index": 0 }, { "cite": "245 Ill. 496", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3408196 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill/245/0496-01" ] }, { "cite": "357 N.E.2d 512", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "65 Ill. 2d 193", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5435415 ], "opinion_index": 0, "case_paths": [ "/ill-2d/65/0193-01" ] } ], "analysis": { "cardinality": 569, "char_count": 12588, "ocr_confidence": 0.898, "pagerank": { "raw": 1.420058740560623e-07, "percentile": 0.648842461471692 }, "sha256": "13e8e3414f76109c0daa0d2e0ba3051f5a08ebe0490ef82696e167ee55c86c80", "simhash": "1:368a1d566a7fc51a", "word_count": 2085 }, "last_updated": "2023-07-14T19:17:48.742090+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re PETITION OF JILL McNULTY et al.\u2014(THE PEOPLE OF THE STATE OF ILLINOIS, Objector.)" ], "opinions": [ { "text": "Mr. JUSTICE LINN\ndelivered the opinion of the court:\nPetitioner, Jill K. McNulty, filed a petition in the juvenile division of the circuit court of Cook County, seeking an award of fees and expenses for legal services performed by her and David S. Rudstein on behalf of the Honorable William S. White in a mandamus proceeding before the Illinois Supreme Court. The County of Cook appeals from an order granting petitioner *2,130 as fees and *228.02 as expenses, contending that petitioner was not properly appointed as a special state\u2019s attorney pursuant to section 6 of \u201cAn Act in regard to attorneys general and state\u2019s attorneys\u201d (Ill. Rev. Stat. 1975, ch. 14, par. 6).\nWe affirm the order of the circuit court.\nOn August 13,1976, the Honorable William S. White, presiding judge of the juvenile division of the circuit court of Cook County, entered certain orders directing jury trials to be granted in the delinquency proceedings pending against minors Glenn Young and David Morris.\nThe State\u2019s Attorney of Cook County was thereafter granted leave to petition the Illinois Supreme Court for a writ of mandamus pursuant to Supreme Court Rule 381 (Ill. Rev. Stat. 1975, ch. 110A, par. 381), ordering Judge White to expunge the orders granting jury trials in the delinquency proceedings. The supreme court granted leave to file the mandamus petition on August 25, 1976. Judge White appointed the petitioner and attorney David S. Rudstein to represent him in the mandamus proceeding.\nOn September 15, 1976, petitioner filed a motion in the supreme court for leave to appear, file briefs and argue on behalf of Judge White. The motion and attached affidavit indicated that Judge White desired to appear and be represented by counsel. Also attached to the motion was a letter from Donald O\u2019Connell, administrative director of the circuit court of Cook County, advising the supreme court that petitioner had been appointed by Judge White pursuant to section 6 of \u201cAn Act in regard to attorneys general and state\u2019s attorneys\u201d (Ill. Rev. Stat. 1975, ch. 14, par. 6), and that the appointment had been approved by Judge John S. Boyle, chief judge of the circuit court of Cook County.\nCopies of this motion and attachments were served on the state\u2019s attorney. No objection having been made, the petitioner\u2019s motion was granted by the supreme court on September 20, 1976.\nThe petitioner and attorney Rudstein thereafter filed briefs and participated in oral argument in the mandamus proceeding. In People ex rel. Carey v. White (1976), 65 Ill. 2d 193, 357 N.E.2d 512, the supreme court issued a peremptory writ of mandamus directing Judge White to vacate his orders granting jury trials in the pending delinquency proceedings and to conduct further proceedings in accordance with the views expressed by the court.\nOn December 1,1976, petitioner filed a petition in the juvenile division of the circuit court alleging that she was entitled to *2,130 as fees and *228.02 in expenses for her representation of Judge White in the mandamus proceeding. The state\u2019s attorney filed a motion to dismiss the petition for fees objecting and asserting for the first time that the petitioner\u2019s appointment was improper. After a hearing, the circuit court entered an order directing that petitioner be allowed the requested fees and expenses. The payment of those fees and expenses has been stayed pending the outcome of this appeal.\nIt is contended that the trial court erred in awarding attorneys fees in this case because petitioner had not been properly appointed a special state\u2019s attorney pursuant to section 6 of \u201cAn act in regard to attorneys general and state\u2019s attorneys\u201d (Ill. Rev. Stat. 1975, ch. 14, par. 6). Petitioner asserts that by failing to object to her participation in the mandamus proceedings on behalf of Judge White, the county has waived any objections to her appointment. In response, the county argues that the circuit court lacked subject matter jurisdiction to appoint petitioner as a special state\u2019s attorney for two reasons: (1) no petition was filed requesting the appointment and (2) the appointment was made by the circuit court instead of the supreme court in which the mandamus action was pending. If the circuit court lacked subject matter jurisdiction to act, no waiver of this issue can be asserted.\nSection 6 of \u201cAn Act in regard to attorneys general and state\u2019s attorneys\u201d (Ill. Rev. Stat. 1975, ch. 14, par. 6) provides:\n\u201cWhenever the attorney general or state\u2019s attorney is sick or absent, or unable to attend, or is interested in any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend, the court in which said cause or proceeding is pending may appoint some competent attorney to prosecute or defend such cause or proceeding, and the attorney so appointed shall have the same power and authority in relation to such cause or proceeding as the attorney general or state\u2019s attorney would have had if present and attending to the same * *\nThe appointment of a special state\u2019s attorney involves the exercise of judicial discretion in determining whether a contingency provided for by section 6 has arisen. (Lavin v. Board Commissioners of Cook County (1910), 245 Ill. 496, 92 N.E. 291; Hutchens v. Wade (1973), 13 Ill. App. 3d 787, 300 N.E.2d 321.) The statute does not specify the procedure to be employed in order to bring the matter to the court\u2019s attention and invoke its jurisdiction. The filing of a petition by the state\u2019s attorney is one proper method of initiating the procedure. The court\u2019s jurisdiction may also be invoked upon the petition of a citizen (People v. Howarth (1953), 415 Ill. 499, 114 N.E.2d 785; People ex rel. Baughman v. Eaton (1974), 24 Ill. App. 3d 833, 321 N.E.2d 531), or by the court upon its own motion (People ex rel. Hoyne v. Northup (1914), 184 Ill. App. 638). As stated in Hutchens v. Wade (1973), 13 Ill. App. 3d 787, 790, 300 N.E.2d 321, 323, \u201cfor a meaningful exercise of judicial discretion, the court\u2019s attention must in some way be directed to the subject matter requiring a decision.\u201d\nIn this instance petitioner was appointed to represent Judge White in a mandamus action arising out of proceedings had before him. There can be no doubt that the judge was fully aware of the circumstances necessitating the appointment of a special state\u2019s attorney. Clearly the state\u2019s attorney could not have represented the interests of both the judge and the county in the mandamus proceeding. This is an excellent example of a situation calling for the court to appoint a special state\u2019s attorney upon its own motion.\nIt is necessary to distinguish this case from Hutchens v. Wade (1973), 13 Ill. App. 3d 787, 300 N.E.2d 321. There attorneys fees were sought for services performed in representing a sheriff in a declaratory judgment action. No petition was filed nor appointment made by the court pursuant to section 6. The court held that since no action directing the court\u2019s attention to the issue of appointment had been taken, the court could not be held to have acquiesced in the appearance of counsel as a special state\u2019s attorney. Here, however, the circuit court was fully cognizant of the need to appoint a special state\u2019s attorney and knowingly exercised its discretion in appointing petitioner to represent Judge White as evidenced by the letter from the administrative director of the circuit court of Cook County to the supreme court advising it of petitioner\u2019s appointment. Furthermore, the motion for leave to appear filed by petitioner in the supreme court, including the circuit court\u2019s letter, indicated that petitioner was acting pursuant to an appointment as special state\u2019s attorney under section 6. With this knowledge, the supreme court granted leave for petitioner to appear as counsel for Judge White. We emphasize that all of this was done with the knowledge of the state\u2019s attorney and without objection.\nFor these same reasons we must reject the county\u2019s contention that petitioner\u2019s appointment was made by the \u201cwrong\u201d court. Both the circuit court, in which the delinquency proceedings were pending, and the supreme court, as part of the mandamus proceeding, were given the opportunity to consider and approve the petitioner\u2019s appointment.\nHaving found no substance in the jurisdictional arguments presented, the technical objections raised by the county must also fail. The county\u2019s failure to object to petitioner\u2019s appointment at a more meaningful time in the proceedings now precludes it from raising the objection on appeal.\nIn People ex rel. Barrett v. Board of Commissioners (1973), 11 Ill. App. 3d 666, 297 N.E.2d 307, this court found that the county\u2019s failure to object to the appointment of a special state\u2019s attorney either at the appointment hearing or during the mandamus proceeding constituted a waiver of the right to review the issue on appeal. In this case the record reveals that the state\u2019s attorney was amply apprised of petitioner\u2019s appointment at the time petitioner filed a motion for leave to appear in the supreme court proceeding. No objection was raised by the county in opposition to petitioner\u2019s motion to appear, although the motion indicated that petitioner was acting pursuant to an appointment under section 6.\nLastly, and for the sake of completeness, we will address the county\u2019s contention that the state\u2019s attorney had no duty to represent Judge White in the mandamus proceeding brought pursuant to Supreme Court Rule 381 (Ill. Rev. Stat. 1975, ch. 110A, par. 381), and in which the judge was designated by the petition as a nominal party. Rule 381(d) states: \u201cIn an original action to review a judge\u2019s judicial act the prevailing party in the proceeding before the judge shall also be designated as a respondent. Process shall be served on the respondents, but the judge is a nominal party, only, and need not respond to the process. His failure to do so will not admit any allegation. Counsel for the prevailing party may file appropriate papers for that respondent but shall not file any paper in the name of the respondent judge.\u201d From this language the county concludes that the state\u2019s attorney had no duty to represent Judge White, although the judge chose to appear and argue before the supreme court.\nWe do not agree. The cases and comments cited by the county indicate that the purpose of a judge\u2019s nominal party designation in such actions is to protect the judge from personal, adversarial entanglement in litigation in which his role is solely judicial. (See United States v. King (D.C. Cir. 1973), 482 F. 2d 768; General Tire & Rubber Co. v. Watkins (4th Cir. 1966), 363 F. 2d 87; Rapp v. Van Dusen (3d Cir. 1965), 350 F. 2d 806.) This laudable intention, however, does not prohibit a judge with a personal interest in the administration of his courtroom from actively participating in the litigation. It seems particularly appropriate that Judge White, as chief judge of the juvenile division, chose to participate in the mandamus proceeding reviewing his decision to grant jury trials in juvenile proceedings.\nWhether a judge is designated a nominal or real party, if sued in his official judicial capacity, it is the duty of the state\u2019s attorney to represent him. (Ill. Rev. Stat. 1975, ch. 14, par. 5(4).) When, as here, a conflict of interests prevents the state\u2019s attorney from fulfilling that function, section 6 establishes the criteria for appointment of a special state\u2019s attorney. We must conclude that Rule 381 does not limit the situations in which a special state\u2019s attorney may be appointed.\nThe skillful and highly professional services rendered by appointed counsel is apparent. We note that the reasonableness of the amount of fees awarded by the trial court has not been questioned. We suggest that it would be appropriate for the petitioner to seek additional fees for the preparation and prosecution of this appeal. The judgment of the trial court is affirmed.\nJudgment affirmed.\nJOHNSON, P. J, and ROMITI, J, concur.\nIn this connection we note that the corresponding Federal rule states: \u201cIf the judge or judges named respondents do not desire to appear in the proceedings, they may so advise the clerk and all parties \u00b0 \u00b0 Fed. R. Ap. P. 21.", "type": "majority", "author": "Mr. JUSTICE LINN" } ], "attorneys": [ "Bernard Carey, State\u2019s Attorney, of Chicago (Paul P. Biebel, Jr., and William E. Kenny, Assistant State\u2019s Attorneys, of counsel), for the People.", "Shelvin Singer, of Chicago, for appellee." ], "corrections": "", "head_matter": "In re PETITION OF JILL McNULTY et al.\u2014(THE PEOPLE OF THE STATE OF ILLINOIS, Objector.)\nFirst District (4th Division)\nNo. 77-375\nOpinion filed May 18, 1978.\nBernard Carey, State\u2019s Attorney, of Chicago (Paul P. Biebel, Jr., and William E. Kenny, Assistant State\u2019s Attorneys, of counsel), for the People.\nShelvin Singer, of Chicago, for appellee." }, "file_name": "0701-01", "first_page_order": 723, "last_page_order": 728 }