When The State's Attorney Cannot Represent A County Official

There are times when a complex situation needs some explanation. This is the situation involving State’s Attorney Louis A. Bianchi and Sheriff Keith Nygren and the appointment of a special prosecutor. Blake Horwitz, an attorney, representing former Sheriff’s Deputy Zane Seipler in his legal battle against the Sheriff, explains why the State’s Attorney cannot investigate the Sheriff since he represents the Sheriff in pending civil cases.

“The litigation concerning the pending Petition to Appoint a Special Prosecutor can be confusing.  This writing is designed to clear up this confusion.

“In Illinois, a citizen has a right to bring a request before a judge to appoint a special prosecutor when there is such a need.  A need can arise when there is no one available to prosecute or investigate a particular governmental official. Sometimes, a governmental official is in a position of such power that it is very difficult to oversee that individual’s activities.  Elected Sheriffs, throughout the country are in such a position.  This is because the local agency that normally prosecutes an individual is the State’s Attorney (in some counties, this position is called a “Commonwealth Attorney” or the “District Attorney”).

“In most counties, the State’s Attorney usually represents the Sheriff in civil proceedings.  For example, if someone decides to sue the Sheriff, the State’s Attorney represents the Sheriff in that proceeding.

“When the State’s Attorney defends a client, he must do so aggressively.  This same rule applies to all attorneys.   Attorneys are required to represent their clients’ zealously and if they are unable to do so, the attorney must withdraw from the case.  Hence, if the State’s Attorney represents the Sheriff in the defense of civil claims, the question arises as to how can that same attorney prosecute or investigate the Sheriff (his client) in criminal court.  This is the very dilemma that Louis Bianchi, the State’s Attorney for McHenry County, finds himself in.

“Mr. Bianchi, as the State’s Attorney, has acknowledged that his office represents the Sheriff in the defense of several pending civil cases.  Mr. Bianchi states that it would be a conflict of interest for his office to investigate the Sheriff for allegations concerning criminal conduct while at the same time he represents the Sheriff in pending civil cases.

“As many people in McHenry County are aware, there has been much litigation concerning the Petition to Appoint a Special Prosecutor with regard to Sheriff Nygren.  In prior hearings, the representative of the office of the State’s Attorney has been unwilling to acknowledge that the Office of the State’s Attorney has a policy of not investigating and/or prosecuting the Sheriff due to the inherent conflict.  However, in the recent Petition before the Court, a letter from Mr. Bianchi was submitted.  In this letter, Mr. Bianchi clarified that his office is unable to both investigate or prosecute Sheriff Nygren and also defend him in civil cases.  To do so would amount to a conflict of interest.  As a result, Judge Meyer (the judge that is presiding over the case) concluded on July 29, 2011 that the Petition to Appoint a Special Prosecutor can go forward.  However, the Judge advised that there are certain allegations that are allowed to proceed forward and others that are not allowed to proceed forward.

Allegations Against State’s Attorney

“The allegations the judge allowed concerned the use of a political logo (the seven point star) on official documents and governmental property.  The Judge also allowed the allegations concerning the conflict of interest to go forward.  The Judge found that since the policy of the State’s Attorney’s office is to not prosecute or investigate the Sheriff, the State’s Attorney is not “available“ to investigate or prosecute the Sheriff.  Hence, the allegations in the Petition concerning these matters may continue forward.  At the end of the day, the Sheriff is not immune from misconduct.  There always must be someone to review his conduct for potential improprieties.  The allegations in this regard have not been reviewed by the office of the State’s Attorney as Mr. Bianchi’s office has an official policy to not investigate allegations of misconduct concerning his client, the Sheriff.

Judge Meyer struck the allegations concerning Amy Dalby, Deputy Cooper and the intertwined relationship between Mr. Bianchi and Sheriff Nygren.

“Much confusion surrounds the status of the case at the present.  People ask “What does it mean to be allowed to go forward?” “Has a special prosecutor been appointed?”  The answer is that the Judge has simply allowed the litigation to go forward.  That is all.  The balance of the litigation will determine whether a special prosecutor will be appointed.

“The allegations regarding Sheriff Nygren concern theft of public monies and misappropriation of funds.  The allegations are that Sheriff Nygren used tax payer dollars to promote his political campaign by taking his political logo and (a) putting it on thousands of official letters mailed out to the general public; (b) placing the logo on official vehicles (motorcycles and vans) and (c) placing the logo on official buildings within the department.  In essence, the Petition alleges that Sheriff Nygren has, for years, been using public monies to promote his political campaign – a prohibited practice in the State of Illinois.

“Hopefully this submission has been informative.  If you have any further questions, please feel free to contact our office at 312-676-2100 and ask to speak to Blake Horwitz.”