In January of 2002, the Appellate Court of Illinois, Fifth District, overturned the conviction in People v. Ward1 because the prosecutor from the Special Prosecution Unit of the State’s Attorneys Appellate Prosecutor (SAAP) Office had not been properly appointed by the trial court as a special prosecutor, and the crime charged to the defendant did not fit within the statute that created the SAAP Office.2 Therefore, the SAAP prosecutor prosecuted the case without authority to do so. However, in September of 2002, the Fifth District narrowed its ruling in Ward and allowed a defendant to waive his or her right to be prosecuted by an attorney with proper authority to represent the State, if he did not object to the SAAP attorney’s presence at the trial level.3 This ruling was reinforced in People v. Jennings4 in October of last year. This article will discuss the cases that have dealt with the issues of SAAP attorneys prosecuting cases without authority and the defendant’s waiver of his or her right to be prosecuted by an attorney with proper authority to represent the State, and briefly comment on changes recently made to the SAAP Act.
II. The State’s Attorney Appellate Prosecutor’s Office
The State’s Attorneys Appellate Prosecutor’s Office, originally called the State’s Attorneys Appellate Service Commission, was created as an agency of the Illinois state government in 1977.5 The purpose of this agency was to "help local State’s Attorney’s prepare appeals that are taken to the appellate court by convicted criminals."6 In particular it was determined that State’s Attorneys, particularly those in the less populated districts associated with downstate Illinois, "[did] not have the staff, the personnel or the money to proceed with the appeals and they [were] losing in the Appellate Courts what they [had] gained in the Circuit Courts."7
Over the last twenty-five years the SAAP Act has been amended numerous times, with one of the most notable changes occurring in 1987 when the legislature enlarged class of cases that the Office could prosecute at trial to include those that came under the "Illinois Controlled Substances Act and the Narcotics Profit Forfeiture Act"8 (italics in original Public Act to show additions to the statute). At that time, the amendment was noted and objected to during debate on the bill with one representative stating "this brings the State Appellate Prosecutor into the Trial Court. I think for years we’ve had a clear separation between the two and I think it’s inappropriate to allow the State Appellate Prosecutor into the Trial Court."9 Another substantial change to the Act was implemented by the legislature in July 2002, which further broadened the cases that a SAAP attorney could prosecute at trial. Discussion of this amendment will follow the discussion of cases where attorneys from the Special Prosecution Unit of the SAAP office prosecuted cases while governed by the Act before July 2002.
III. Cases Prosecuted by SAAP Attorneys Without Authority
In People v. Ward the defendant was charged and convicted of a crime that did not fall within those listed in the pre-2002 SAAP Act.10 However, there was no evidence in the record that the SAAP attorney had been appointed as a special assistant to the State’s Attorney or as a special prosecutor. The defendant argued that the SAAP Act listed specific instances when attorneys from the agency could be utilized and the Cannabis Control Act was not one of those listed.11 The State argued that the case was a drug case and thus the SAAP attorney did have authority to prosecute this case.12 However, the Illinois Appellate Court, Fifth District, using the time-honored rule of statutory interpretation expressio unius est exclusio alterius (the enumeration of certain matters in a statute implies the exclusion of all others), held that the "language used by the legislature [did] not indicate that prosecution under this Act is allowed by attorneys from the State’s Attorneys Appellate Prosecutor’s office" for any offense not listed in the Act itself.13 Additionally, in responding to the State’s argument that the defendant had waived this issue, the court replied, "if a case is not prosecuted by an attorney properly acting as an assistant State’s Attorney, the prosecution is void and the cause should be remanded so that it can be brought by a proper prosecutor."14
However, in People v. Woodall15 the Appellate Court of Illinois, Fifth District, narrowed its ruling in Ward such that a defendant could waive the issue of a SAAP prosecutor not having authority to prosecute his case. In Woodall the defendant was initially charged with murder by the Shelby County State’s Attorney.16 However after the indictment, the State’s Attorney executed documents entitled "Appointment of Special Assistant State’s Attorney" and "Oath of Office", in which he attempted to pass on the prosecutorial powers that he enjoyed by the power of his office to a SAAP attorney.17 After the execution of these two documents, two SAAP attorneys convened and conducted a grand jury that indicted the defendant for additional crimes of home invasion and residential burglary.18 In addition, a third SAAP attorney participated in the prosecution of the defendant without taking the "Oath of Office" and none of the SAAP attorneys had been court-appointed as a "special prosecutor" or had been authorized to serve as an assistant State’s Attorney by the Shelby County board.19 On appeal the only issue raised by the defendant was the lack of authority by the SAAP attorneys to prosecute this crime since it did not fit within those listed in the SAAP Act.20 The State argued that the State’s Attorney’s attempt to appoint the SAAP attorneys as his assistants and the trial court’s apparent recognition of these attorneys as representatives of the State, "served as an appointment that granted the authority to prosecute the case," and that the SAAP attorneys were "effectively made court-appointed special assistant State’s Attorneys."21 The Appellate Court of Illinois, Fifth District, stated that the attorneys employed by the SAAP office were not constitutional officers, their powers were derived from the SAAP statute that created them, and thus "those powers [were] strictly limited by the authority conferred upon the [SAAP office] by [the] state legislators.22 Furthermore, the position or office of "special assistant State’s Attorney" was a position unknown to the laws of Illinois, and that SAAP attorneys "could not roam the state as special assistant State’s Attorneys, able to assist on any kind of trial matter."23 Also, the use of a special prosecutor was limited by statute and could only be created by a circuit court after a judicial determination had shown that the elected State’s Attorney "[was] sick or absent, or [was] unable to attend, or [was] interested in any cause or proceeding."24 In summary, the SAAP attorneys did not have the authority to prosecute the defendant.
However, and some may find surprisingly, the court also ruled that the conviction was not void and in fact was valid.25 In so ruling, the court stated that a judgment is void only when a court has not acquired or exceeds its jurisdiction.26 And in this case, the appearance of the SAAP attorneys and their prosecution of the defendant without authority to do so did not deprive the trial court of its jurisdiction since the information had already been filed before the defective appointment of the SAAP prosecutors.27 And finally, the court distinguished Woodall from Ward by stating that in Ward the defendant had objected to his prosecution by the SAAP attorney during the trial and thus the trial judge "clearly committed error in ruling that [a SAAP] attorney could prosecute the case."28 However, in Woodall, the defendant never objected to the SAAP attorneys’ prosecution of his case until his appeal, and the court stated that "the right to be prosecuted by someone with proper prosecutorial authority is a personal privilege that may be waived if not timely asserted in the circuit court."29 Therefore, the defendant was deemed to have waived this issue and the judgment affirmed.
Similar to Woodall, in People v. Jennings the Illinois Appellate Court, Fifth District, again found that a defendant charged and convicted with second degree murder and prosecuted by SAAP attorneys had waived his right to be prosecuted by someone with proper authority.30 In Jennings the original indictment of the defendant was obtained by the local State’s Attorney, but SAAP attorneys prosecuted the trial as "Special State’s Attorney[s]" appointed by the local State’s Attorney of Shelby County.31 The defendant never objected to the presence of the SAAP attorney during the trial and on appeal argued that the SAAP prosecutor did not have the authority to prosecute his case.32 The Appellate Court of Illinois, Fifth District, agreed with the defendant, i.e. the SAAP attorneys did not have the authority to prosecute his case and stated that this "type of appointment [could not] be condoned."33 However, similar to Woodall the conviction was held valid because the defendant waived his right to challenge the defective appointment of the SAAP prosecutor because he did not object to his presence at the trial level.34
The Illinois Appellate Court, Fifth District, is the only appellate court to rule on this issue and publish its opinion. Furthermore, the Illinois Supreme Court has not heard an appeal on one of these cases. Whether or not a split decision could result from a different ruling by another appellate court in Illinois remains to be seen. However, the likelihood for such an event has been diminished given the latest amendments to the SAAP Act which are discussed below.
IV. Post-2002 State’s Attorneys Appellate Prosecutor’s Act
The latest change to the Act occurred in 2002 when the legislature amended the Act to include:
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 and trial 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. 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 ay of its attorneys as a Special Prosecutor, the Office must forward a copy of the order to the Springfield office of the Attorney General.35 (italics in original Public Act to show additions to the statute).
As shown in this addition, the types of cases that a SAAP attorney may now prosecute at trial has been expanded from cases arising under three acts36 (Illinois Controlled Substances Act, the Narcotics Profit Forfeiture Act, and the Illinois Public Labor Relations Act) to any criminal case under Illinois law (italics added). Thus a SAAP attorney may prosecute any case at trial if asked by the local State’s Attorney and be within his or her statutory authority.
Of interest to this amendment are the comments by legislator during floor debate. In particular, one of the sponsors of the Bill stated "This is a Bill that attempts to codify a practice that the Appellate Prosecutor’s Office has been doing for some time. And that is, in certain situations the State’s Attorney Office will ask for their assistance in the prosecution of a criminal case. . . . Because of the question as to whether or not they have the authority to prosecute on behalf of a local [S]tate’s [A]ttorney, this Bill was proposed to clean that up. . . . I think the Appellate Prosecutor’s Office felt like they really were in a trick bag. If we ignore this and continue in the practice that we’ve done for years, we run the risk of a court throwing out a case that we prosecute."37
Also of interest is the fact that the attorneys of the Special Prosecution Unit of the SAAP are not elected officials.38 Furthermore, their supervisor, the Director of the SAAP Office, is not an elected official and does not answer to one elected official, but to a board of governors.39 This board of governors consists of ten State’s Attorneys that are elected by all of the State’s Attorneys from their district.40 Thus, one might argue this creates a position with the duties and powers that are similar to the locally elected State’s Attorney, and yet results in a prosecutor that is relatively isolated from voter accountability and immune from the only check and balance that can redress prosecutor excesses because they enjoy such broad governmental immunity freeing them from redress in the civil courts for most tortious actions. In rebuttal, the State may argue that a SAAP attorney appointed as a special prosecutor now serves at the pleasure of the Attorney General.41 However, the statute provides the Attorney General with no authority to terminate the employment or even discipline a SAAP attorney.42 Therefore, although the Attorney General can remove a SAAP attorney from a case that he has been appointed to as a special prosecutor, any accountability by the SAAP attorney to the citizens is still not articulated in Illinois law.
In summary, the Fifth District has ruled that the SAAP attorneys do not have the proper authority to prosecute a case if not properly appointed by the trial court, but the right of a defendant to be prosecuted by one with proper authority can be waived. Also, the question of the authority of SAAP attorney to prosecute a case at trial appears to have been "cleaned up", however the duties, powers, and performance of their office still remains relatively isolated from the people of this state.
1 762 N.E.2d 685 (2002).
2 State’s Attorneys Appellate Prosecutor’s Act, 725 Ill. Comp. Stat. 210/4.01 (2002).
3 People v. Woodall, 777 N.E.2d 1014 (2002).
4 798 N.E.2d 1211 (2003).
5 State’s Attorneys Appellate Service Commission Act, Pub. Act 80-1st S.S. § 4.01, 1977 Ill. Laws 3601 (amended 1980).
6 H.R. 20, 80th Leg. (Ill. 1977) (statement by Rep. Kempiners made on Nov. 8, 1977).
8 State’s Attorneys Appellate Prosecutor’s Act, Pub. L. No. 85-617, § 1, 1987 Ill. Laws 2701 (amended 1988).
9 H.R. 1706, 85th Leg. (Ill. 1987) (statement by Rep. Countryman made on May 22, 1987).
10 762 N.E.2d at 689 (defendant was charged under the Cannabis Control Act and not the Illinois Controlled Substances Act).
15 777 N.E.2d 1014.
16 Id. at 1016.
20 Id. at 1015.
21 Id. at 1018.
22 Id. at 1017.
23 Id. at 1020.
24 Id. at 1021, See also 55 Ill. Comp. Stat. 5/3-9008 (2002).
25 777 N.E.2d at 1026.
26 Id. at 1022.
28 Id. at 1023.
29 Id. at 1025.
30 798 N.E.2d 1211.
31 Id. at 1214.
32 Id. at 1216.
33 Id. at 1217.
34 Id. at 1219.
35 State’s Attorneys Appellate Prosecutor’s Act, 725 Ill. Comp. Stat. 210/4.01 (West Supp. 2003).
37 H.R. 5681, 92nd Leg. (Ill. 2002) (statement by Rep. Cross made on Apr. 2, 2002).
38 State’s Attorneys Appellate Prosecutor’s Act, supra note 2 at § 7.02.
39 Id. at § 7.01.
40 Id. at § 3.
41 Id. at § 4.01.
Mark Harper earned his doctorate in Engineering at the Ohio State University, is currently a second year law student at the Northern Illinois University College of Law, and is a member of the Northern Illinois University Law Review.