                                                                         Digitally signed by
                                                                         Reporter of
                                                                         Decisions
                                                                         Reason: I attest to
                       Illinois Official Reports                         the accuracy and
                                                                         integrity of this
                                                                         document
                              Appellate Court                            Date: 2019.07.15
                                                                         09:26:34 -05'00'



                  People v. Towne, 2019 IL App (3d) 170834



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption           BRIAN J. TOWNE, Defendant-Appellee.



District & No.    Third District
                  Docket No. 3-17-0834



Filed             February 5, 2019



Decision Under    Appeal from the Circuit Court of La Salle County, No. 17-CF-369; the
Review            Hon. Clark E. Erickson, Judge, presiding.



Judgment          Appeal dismissed.


Counsel on        Karen Donnelly, State’s Attorney, of Ottawa, for the People.
Appeal
                  Adam R. Vaught and Carson R. Griffis, of Hinshaw & Culbertson
                  LLP, of Chicago, for appellee.



Panel             JUSTICE McDADE delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Schmidt and Justice Lytton concurred in the
                  judgment and opinion.
                                               OPINION

¶1       The State charged the defendant, former La Salle County State’s Attorney Brian J. Towne,
     with 13 counts of official misconduct (720 ILCS 5/33-3(b), (c) (West 2016)) and 4 counts of
     misapplication of funds (720 ILCS 5/33E-16 (West 2016)). Towne subsequently filed a
     petition for appointment of a special prosecutor, alleging that current State’s Attorney Karen
     Donnelly, was biased against him and that her involvement in the case created an appearance
     of impropriety. After a hearing, the circuit court granted the petition. The State filed a petition
     for leave to file an interlocutory appeal pursuant to Illinois Supreme Court Rule 306(a)(7) (eff.
     July 1, 2017), which this court granted. On appeal, the State argues that the circuit court
     applied an incorrect legal standard in its ruling, but that even under the correct standard, the
     court’s ruling was an abuse of discretion. Towne realleges his argument that Rule 306(a)(7)
     cannot serve as a basis for appellate jurisdiction because that rule applies only to civil cases.
     We dismiss the appeal for lack of jurisdiction.

¶2                                        I. BACKGROUND
¶3       In November 2016, Donnelly defeated incumbent Towne in the election for La Salle
     County state’s attorney. Leading up to the election, Donnelly’s persistent allegations that
     Towne had committed criminal acts while in office constituted a major campaign issue.
¶4       In September 2017, Towne was charged by indictment with 13 counts of official
     misconduct (720 ILCS 5/33-3(b), (c) (West 2016)) and 4 counts of misapplication of funds
     (720 ILCS 5/33E-16 (West 2016)).1 Shortly thereafter, Towne filed a petition for appointment
     of a special prosecutor, alleging, inter alia, that Donnelly should be disqualified because she
     was biased against Towne and was an “interested” party such that “her continued participation
     in the case creates an appearance of impropriety.” In its response, the State alleged, inter alia,
     that Towne’s request was based on the standard appearing in the prior version of the statute
     governing the appointment of special prosecutors, section 3-9008 of the Counties Code (55
     ILCS 5/3-9008 (West 2014)). Further, the State alleged that Towne could not meet the
     appropriate current statutory standard of showing that Donnelly had an actual conflict of
     interest.
¶5       The circuit court held a hearing on the petition in November 2017 and issued a written
     decision approximately two weeks later. In analyzing the amendment to section 3-9008 in
     Public Act 99-352 (eff. Aug. 12, 2015), the court noted that the relevant change to the statute
     was from the language allowing the appointment of a special prosecutor when the state’s
     attorney is interested in the cause or proceeding to the language allowing that appointment
     only when the state’s attorney has an actual conflict of interest. The court found that the
     amended language evinced no obvious intent to abrogate the judicial decisions interpreting the
     former version of section 3-9008 except for those that interpreted “interested.” The court then
     found that the amendment did not intend to “limit[ ] the Court’s ability to govern its own
     proceedings so as to avoid the possible undermining of the integrity of those same
     proceedings.” Accordingly, the court stated that it would rely on case law that interpreted the
     former version of section 3-9008.

         1
         Minor corrections were made to the indictment in October 2017, including the statutory citations
     upon which the charges were based.

                                                  -2-
¶6         Applying the law to the facts, the court emphasized certain actions of the state’s attorney’s
       office that the court concluded “[gave] rise to a public perception of lack of impartiality,” as
       well as the public nature of the case. The court then concluded that failing to grant the motion
       for appointment of a special prosecutor would “possibly undermine the integrity of the court.”
¶7         Lastly, the court stated:
                   “While the Court has not focused on whether an actual conflict exists in this case,
               the Court finds that there is certainly reason for concern that an actual conflict may
               arise during the course of a trial should the motion for a special prosecutor be denied.
               The State intends to call a current employee of the State’s Attorney’s Office at trial, and
               the defense has indicated that they intend to list more than one current employee of the
               State’s Attorney’s office as possible witnesses. Additionally, the current Chairman of
               the La Salle County Board may be called as a witness by the defense, which would put
               the State in the possibly uncomfortable position of cross-examining a public official
               they are legally obligated to represent.”
¶8         The State filed a petition for leave to file an interlocutory appeal pursuant to Rule
       306(a)(7), which is contained in the set of rules applicable to civil actions and which provides
       that a party may petition for leave to appeal to the appellate court “from an order of the circuit
       court granting a motion to disqualify the attorney for any party.” Ill. S. Ct. R. 306(a)(7) (eff.
       July 1, 2017). Towne contested the petition, alleging, inter alia, that Rule 306(a)(7) could not
       serve as a basis for appellate jurisdiction because it applies only to civil cases. We granted the
       State’s petition and allowed it to file this appeal.

¶9                                              II. ANALYSIS
¶ 10        On appeal, the State argues that (1) the circuit court applied the incorrect legal standard by
       ignoring the amended language of section 3-9008(a) of the Counties Code and (2) even if the
       court applied the correct legal standard, the court’s decision to disqualify Donnelly and appoint
       a special prosecutor was an abuse of discretion.
¶ 11        Initially, we note that Towne has realleged the jurisdictional challenge he posited in his
       responsive pleading to the State’s petition for leave to file an interlocutory appeal. Towne
       asserts that the State’s ability to appeal in criminal cases is controlled by Rule 604(a)(1) (Ill. S.
       Ct. R. 604(a)(1) (eff. July 1, 2017)) and that the State’s attempt to bring this appeal pursuant to
       Rule 306(a)(7) is improper.
¶ 12        In its reply brief, the State asserts multiple reasons why we should find we have
       jurisdiction: (1) this court has already granted the Rule 306(a)(7) petition for leave to file an
       interlocutory appeal; (2) because this appeal presents a question collateral to the criminal case,
       i.e., the interpretation of a civil statute (section 3-9008 of the Counties Code), using Rule
       306(a)(7) as a basis for jurisdiction is proper; (3) civil appeals rules have been applied in
       criminal cases, such as People v. Pawlaczyk, 189 Ill. 2d 177 (2000), People v. Kennedy, 43 Ill.
       2d 200 (1969), and People v. Harper, 2012 IL App (4th) 1108802; (4) if accepted, Towne’s

           2
            Pawlaczyk involved a special prosecutor initiating an equitable proceeding, separate from the
       criminal case, that sought to divest two journalists of their reporter’s privilege. Pawlaczyk, 189 Ill. 2d at
       179. In Kennedy, our supreme court held that the rules governing civil appeals applied to proceedings
       under the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1967, ¶ 105-1.01 et seq.), which the court
       acknowledged were civil in nature. Kennedy, 43 Ill. 2d at 202-03. In Harper, 2012 IL App (4th)

                                                        -3-
       argument would result in the complete inability of the State to appeal an order appointing a
       special prosecutor; (5) the removal of a duly elected prosecutor is a matter of general
       importance such that review of disqualification “is essential to the proper functioning of the
       legal system”; and (6) it is fundamentally unfair to allow only one side to “appeal from an
       order interpreting and applying a statute.”
¶ 13       We granted the State’s petition for leave to file an interlocutory appeal to allow the parties
       to fully argue and support their competing contentions concerning this court’s jurisdiction. As
       a reviewing court, we have a continuing duty to ascertain our jurisdiction and to dismiss the
       case if we determine jurisdiction to be lacking (Cushing v. Greyhound Lines, Inc., 2012 IL App
       (1st) 100768, ¶ 83).
¶ 14       Rule 306(a)(7) provides that “[a] party may petition for leave to appeal to the Appellate
       Court *** from an order of the circuit court granting a motion to disqualify the attorney for any
       party.” Ill. S. Ct. R. 306(a)(7) (eff. July 1, 2017). Importantly, Rule 306(a)(7) is contained
       within the set of rules applicable to civil actions.
¶ 15       Rule 604(a)(1) provides that the State may file an appeal in criminal cases
               “from an order or judgment the substantive effect of which results in dismissing a
               charge for any of the grounds enumerated in section 114-1 of the Code of Criminal
               Procedure of 1963 [(725 ILCS 5/114-1 (West 2016))]; arresting judgment because of a
               defective indictment, information or complaint; quashing an arrest or search warrant;
               or suppressing evidence.” Ill. S. Ct. R. 604(a)(1) (eff. July 1, 2017).
       Rule 604(a)(1) “is the sole source of authority for interlocutory appeals by the State in criminal
       cases.” People v. Riley, 209 Ill. App. 3d 212, 215 (1990) (citing People v. Young, 82 Ill. 2d 234,
       239 (1980)).
¶ 16       In this criminal case, the State seeks to pursue an interlocutory appeal from the circuit
       court’s order disqualifying the state’s attorney’s office and mandating the appointment of a
       special prosecutor. Rule 604(a)(1) and the cases interpreting it make clear that, contrary to the
       State’s claim, Rule 306(a)(7) in fact cannot serve as a basis for appellate jurisdiction in this
       case. See id.
¶ 17       Further, the circumstances enumerated in Rule 604(a)(1), under which a State may file an
       interlocutory appeal in criminal cases, clearly do not include the circumstances of this case.
       Additional support for this interpretation can be found in Rule 604(g), which provides:
               “The defendant may petition for leave to appeal to the Appellate Court from an order of
               the circuit court granting a motion to disqualify the attorney for the defendant based on
               a conflict of interest. The procedure for bringing interlocutory appeals pursuant to this
               subpart shall be the same as set forth in Supreme Court Rule 306(c).” (Emphasis
               added.) Ill. S. Ct. R. 604(g) (eff. July 1, 2017).
       There is no indication that permission to appeal this issue is similarly available to the State.




       110880, ¶ 18, the Fourth District cited authority that traced back to People v. Jones, 104 Ill. 2d 268,
       275-81 (1984), in which our supreme court, in a criminal case, applied Rule 271 (Ill. S. Ct. R. 271 (eff.
       Jan. 1, 1967)), which appears in the rules applicable to civil proceedings in the trial court, albeit not for
       purposes of jurisdiction.

                                                        -4-
¶ 18       The supreme court has the authority to authorize an appeal by the State from interlocutory
       orders disqualifying the state’s attorney in criminal cases; the existence of Rule 604(g)
       reinforces that fact. The court has not done so.
¶ 19       The legislature’s modification of section 3-9008(a) of the Counties Code (55 ILCS
       5/3-9008(a) (West 2016)) created a more specific, more concrete, and more easily reviewable
       standard for the disqualification of a county’s elected state’s attorney. The supreme court, with
       which the authority solely rests, has not chosen to amend its Rule 604 to allow the State to
       appeal this more narrowly tailored basis for disqualification. Unless or until such a
       modification is made, we are constrained by the rule from addressing and resolving the state’s
       attorney’s policy-type arguments. We therefore dismiss the appeal for lack of jurisdiction.

¶ 20                                     III. CONCLUSION
¶ 21      For the foregoing reasons, we dismiss this appeal for lack of jurisdiction.

¶ 22      Appeal dismissed.




                                                   -5-
