HB5858 103RD GENERAL ASSEMBLY

LRB103 40925 AWJ 73938 b

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.

A BILL FOR

AN ACT concerning local government.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Counties Code is amended by changing Section 3-9008 and by adding Section 3-9014 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 the State's Attorney's 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 the State's Attorney's duties. If the court finds that the State's Attorney is sick, absent, or otherwise unable to fulfill the State's Attorney's 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, proceeding, or other matter arising under the State's Attorney's duties, civil or criminal, may file a petition alleging that the State's Attorney has an actual conflict of interest in the cause, proceeding, or other matter. 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, proceeding, or other matter. 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, proceeding, or other matter.

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

(a-20) 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 (i) 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, or (ii) a vacancy that has occurred as provided in paragraph (i) of subsection (f) of Section 3-9014, 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 the State's Attorney 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. 102-56, eff. 7-9-21; 102-657, eff. 1-1-22; 102-813, eff. 5-13-22.)

(55 ILCS 5/3-9014 new)

Sec. 3-9014. State's Attorney Recall.

(a) As used in this Section:

"Chief proponent" means the person whose name and signature is on the affidavit of intent initiating the recall process.

"Proponent county" means the county where the chief proponent is a resident.

"Proponent county clerk" means the county clerk of the proponent county.

(b) This Section applies to counties with a population over 2,000,000.

(c) The recall of an elected State's Attorney may be initiated by filing, in the proponent county, an affidavit of intent to circulate a petition to recall the State's Attorney of that county and filing a certified copy of the affidavit in all other counties in which the State's Attorney is elected to serve. The affidavit may be filed no sooner than 6 months after the beginning of the State's Attorney's term of office. The affidavit shall contain (i) the name and title of the State's Attorney to be recalled, (ii) a statement, not exceeding 200 words in length, of the reasons for the proposed recall, and (iii) the printed name, signature, and residential address of the chief proponent, who shall be a registered voter and qualified to vote for the office of State's Attorney in the proponent county. The chief proponent shall publish a copy of the affidavit of intent in an English language newspaper of general circulation in each county in which the State's Attorney serves. If no newspaper is in general circulation in a county, the chief proponent shall post a copy of the affidavit of intent in at least 3 public places in that county.

Not more than 150 days after the affidavit of intent has been filed, a petition to recall the State's Attorney shall be filed in the proponent county and a certified copy of the petition shall be filed in all other counties in which the State's Attorney is elected to serve. The petition shall be signed by a number of electors equal in number to at least 5% of the total votes cast for the office of State's Attorney in the preceding election in all counties in which the State's Attorney is elected to serve. All electors signing a recall petition must be registered voters who, based on their residence, are qualified to vote for the office of State's Attorney in the county or counties in which the State's Attorney serves.

The following must be included in a recall petition filed under this subsection:

(1) The name and title of the State's Attorney to be recalled under the petition.

(2) The statement of the reasons for the proposed recall contained in the affidavit of intent.

(3) The printed name, signature, and residential address of each elector signing the recall petition.

No later than 7 days after the filing of a recall petition, the State's Attorney may file an answer, including any statement of defense, against the recall attempt. The answer may not exceed 200 words in length. The answer shall be filed in the proponent county and a certified copy of the answer shall be filed in all other counties in which the State's Attorney is elected to serve.

(d) The county clerk shall certify the petition to the proper election authority or authorities not more than 7 days after the date the petition was filed, and the question "Shall (name of State's Attorney) be recalled from the office of State's Attorney?" must be submitted to the electors of each county in which the State's Attorney is elected to serve at a special recall election called by the proponent county clerk to occur not more than 60 days after certification of the petition. A recall petition certified by the county clerk may not be withdrawn.

(e) If a recall petition has been filed with the proponent county clerk, a person eligible to serve as State's Attorney may propose his or her candidacy for the special successor primary election by a successor candidate petition signed by at least 5% of the total votes cast for the office of State's Attorney in the preceding election in the proponent county, signed not more than 50 days after a recall petition has been filed with the proponent county clerk. Each elector signing the special successor candidate petition must be a registered voter in the proponent county or one of the counties in which the State's Attorney is elected to serve. The successor candidate petition shall be filed in the proponent county and a certified copy of the petition shall be filed in all other counties in which the State's Attorney is elected to serve. A successor candidate petition and the procedures concerning successor candidate petitions shall conform in all other respects to the provisions of the election and ballot laws then in force in the proponent county concerning the nomination of independent candidates for public office by petition. The proponent county clerk shall certify the petition not more than 60 days after the date the petition to recall the State's Attorney was filed.

(f) The State's Attorney who is the subject of the petition is immediately removed from office upon certification of the special recall election results if a majority of the electors voting on the question vote to recall the State's Attorney. If the State's Attorney is removed, then the following shall occur: (i) if no successor candidate petition has been certified by the proponent county clerk within the times required by subsection (e), then a vacancy in the office of State's Attorney is created and a replacement State's Attorney shall be appointed as provided in subsection (b) of Section 3-9008; or (ii) if at least one successor candidate petition has been certified by the proponent county clerk within the times required by subsection (e), then a special successor primary election or special runoff election shall be held pursuant to subsection (g) to determine the successor State's Attorney.

(g) If the State's Attorney is removed by the special recall election, then the names of candidates certified under subsection (e) for State's Attorney must be submitted to the electors of each county previously served by the removed State's Attorney at a special successor primary election called by the proponent county clerk to be held no later than 60 days after the special recall election. The candidate receiving the highest number of votes at the special successor primary election shall be declared elected, and he or she shall serve the remaining portion of the recalled State's Attorney's term.

If no candidate receives a majority of the total votes in the special successor primary election, then a special runoff election shall be called by the proponent county clerk and held no later than 60 days after the special successor primary election, and only the names of the candidates receiving the highest and second-highest number of votes at the special successor primary election shall appear on the special runoff election ballot. If more than one candidate received the highest or second-highest number of votes at the special successor primary election, the names of all candidates receiving the highest and second-highest number of votes shall appear on the ballot at the special runoff election. The candidate receiving the highest number of votes at the special runoff election shall be declared elected, and he or she shall serve the remaining portion of the recalled State's Attorney's term.

If the State's Attorney is removed by the special recall election and the special successor primary election or the special runoff election has not occurred before the date of the general election at which the State's Attorney is to be elected, no special successor primary election or special runoff shall occur and the recalled State's Attorney shall be replaced by the person elected at the general election.

(h) A recall may not be initiated against a State's Attorney under this Section:

(1) during the 6 months after a recall election failed to remove the State's Attorney;

(2) if the State's Attorney has less than 6 months remaining before his or her term ends; or

(3) if an affidavit of intent or recall petition has already been filed and is pending to recall the State's Attorney.

(i) An affidavit of intent is void if no recall petition has been filed within 150 days after the affidavit of intent is filed. If a recall election has not occurred before the date of the next general election at which the State's Attorney is elected, then the recall petition is void.

(j) Except as provided in this Section, the form of the affidavit and petitions and the procedure for circulation of the petitions shall be as otherwise provided by law.

(k) If this Section conflicts with any other provision of law, this Section controls notwithstanding the other provision of law.

Section 99. Effective date. This Act takes effect upon becoming law.