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SECOND DIVISION
November 26, 2002

PRESIDING JUSTICE McBRIDE delivered the opinion of the court:

On March 24, 1999, petitioner, E.H., by and through his maternal grandmother, RosettaCrawford, and his mother, Sonya Crawford, filed a petition for the appointment of a specialprosecutor and other relief to investigate and prosecute Chicago police detectives Allen Nathanieland James Cassidy for criminal misconduct allegedly committed during their investigation of thesexual assault and murder of Ryan Harris. The petition alleges that Nathaniel and Cassidyconcocted, fabricated, framed and created false evidence which implicated 8-year-old E.H. and 7-year-old R.G. in the sexual assault and murder of 11-year-old Ryan Harris. The petition alleges thaton August 10, 1998, Nathaniel perjured himself during his testimony at the probable cause hearingin juvenile court. The petition further states that Detective Cassidy has a brother, Scott Cassidy, whois an assistant State's Attorney and holds the position of supervisor of the Organized Crime Divisionof the Cook County State's Attorney's office. Petitioner argues this created a conflict of interestbetween the State's Attorney's office and the Chicago police department. The petition also allegesimpropriety in the investigation, charging and prosecution of the Anna Gilvis home invasion andmurder and the Donald Rudolph and Connie Hall murders. As the Gilvis, Rudolph and Hallallegations are not before this court on this appeal, they will not be addressed. Cook County State'sAttorney Richard A. Devine was allowed to intervene as respondent and on April 7, 1999, filed anobjection to the petition for the appointment of a special prosecutor.

On July 27, 1999, petitioner filed an amended petition for the appointment of a specialprosecutor. In this amended petition, petitioner alleges Assistant State's Attorney MichaelOppenheimer conspired with Detectives Nathaniel and Cassidy to concoct, fabricate, frame andcreate false and perjured evidence to implicate E.H. and R.G. in the sexual assault and murder ofRyan Harris. Specifically, petitioner alleges that Oppenheimer induced Nathaniel to testifyperjuriously at the August 10, 1998, hearing and unlawfully withheld favorable evidence and factsfrom E.H., R.G. and their attorneys that exculpated and established that E.H. and R.G. were not inany way involved in the crimes against Harris.

On November 23, 1999, respondent filed a motion pursuant to section 2-615(e) of the Codeof Civil Procedure (735 ILCS 5/2-615(e)(West 1998)) for judgment on the pleadings. On January12, 2000, petitioner filed an answer to respondent's motion. After a hearing on the motion on March13, 2000, the trial court granted respondent's motion for judgment on the pleadings. The trial courtfiled a written memorandum of opinion and order on March 23, 2000. This appeal followed.

On appeal, petitioner argues that the trial court erroneously granted respondent's motion forjudgment on the pleadings. Specifically, he argues his petition was sufficient to establish a causeof action for the appointment of a special prosecutor arguing respondent had a conflict of interestthat prohibited respondent from investigating charges petitioner filed against certain police officersand respondent's employee.

Section 2-615(e) allows any party to move for judgment on the pleadings. 735 ILCS 5/2-615(e) (West 1998). The purpose of a motion for judgment on the pleadings is to test the sufficiencyof the pleadings by determining whether the petitioner is entitled to the relief sought. Teeple v.Hunziker, 118 Ill. App. 3d 492, 496, 454 N.E.2d 1174 (1983); Tim Thompson, Inc. v. Village ofHinsdale, 247 Ill. App. 3d 863, 890, 617 N.E.2d 1227 (1993). It concedes all well-pleaded facts setforth in the pleading and draws all fair inferences therefrom. Richco Plastic Co. v. IMS Co., 288 Ill.App. 3d 782, 786, 681 N.E.2d 56 (1997). Moreover, in determining the sufficiency of any claim,the court will disregard any conclusions that are not supported by allegations of specific facts. Richco Plastic Co., 288 Ill. App. 3d at 784. "On review of an order granting judgment on thepleadings, the appellate court must ascertain whether the trial court correctly determined that nogenuine issue as to any material fact was presented by the pleadings and, if there was no such issue,whether judgment was correctly entered." Teeple, 118 Ill. App. 3d at 497. We review the trialcourt's dismissal of the pleadings de novo. Richco Plastic Co., 288 Ill. App. 3d at 785.

Petitioner argues that his petition and amended petition sufficiently established a cause ofaction for the appointment of a special prosecutor. Pursuant to section 3-9005 of the Counties Code,the State's Attorney has the power and duty to prosecute all actions brought by any county officerand to defend all actions brought against his county, or against any county or state officer. 55 ILCS5/3-9005 (West 1998). Additionally, the statute allows for the appointment of a special prosecutorin certain circumstances:

"Whenever the State's attorney is sick or absent, or unable toattend, 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 inwhich said cause or proceeding is pending may appoint somecompetent attorney to prosecute or defend such cause or proceeding***." 55 ILCS 5/3-9008 (West 1998).

The purpose of this statute is to "prevent any influence upon the discharge of the duties of the State'sAttorney by reason of personal interest." People v. Morley, 287 Ill. App. 3d 499, 503-04, 678 N.E.2d1235 (1997). The decision to appoint a special prosecutor is within the discretion of the trial court. People v. Arrington, 297 Ill. App. 3d 1, 3, 696 N.E.2d 1229 (1998). In the present case, the decisionrests upon the word "interested" as used in section 3-9008. The Illinois Supreme Court has held thatthe only situations in which the State's Attorney could be considered "interested" so as to authorizethe appointment of a special prosecutor are where (1) he or she is interested as a private individual;or (2) he or she is an actual party to the litigation. Environmental Protection Agency v. PollutionControl Board, 69 Ill. 2d 394, 400-01, 372 N.E.2d 50 (1977); Morley, 287 Ill. App. 3d at 504.

The record below reveals the following facts. On July 28, 1998, around 3 p.m., the body of11-year-old Ryan Harris was found in a rear yard on South Parnell Avenue. According to themedical examiner, Harris died from blunt trauma to her head and asphyxiation. When Harris's bodywas found, a pair of girl's underwear was stuffed in her mouth and there was foliage and leaves inher nose. The medical examiner also noted a half-inch gash to her vagina. On August 9, 1998,Detective Nathaniel spoke with eight-year-old E.H. and seven-year-old R.G. The detective spokefirst with R.G. after obtaining permission to speak with him from his grandmother. R.G. told thedetective that he and E.H. were playing with Harris in the rear of 6636 South Parnell Avenue. E.H.and R.G. were throwing rocks back and forth and Harris was on a bicycle. R.G. hit Harris in theback of the head with a rock which caused Harris to fall off her bike. R.G. and E.H. moved Harris'sbike to a wooded area behind the building. E.H. and R.G. then each took an arm and dragged Ryaninto the same wooded area. R.G. told the detective that they then began to "play with [Harris] verysoftly." R.G. began rubbing leaves and foliage over Harris's body and placed leaves and stems inher nose. R.G. and E.H. pulled down Harris's underwear and pants. R.G. placed Harris's underwearin her mouth. R.G. told the detective that after it got dark, R.G. and E.H. went to R.G.'sgrandmother's home to play with puppies. After this conversation, the detective explained to R.G.his Miranda rights and called two youth officers into the room. R.G. repeated essentially the samestory with the two youth officers present.

After speaking with R.G. about the incident, Detective Nathaniel spoke with E.H.'s mother. E.H. allowed her son to be interviewed by the police. After having his rights explained to him, E.H.told the detective that he and R.G. were throwing rocks and R.G. hit Harris in the back of the headwith a rock. E.H. said that once Harris was on the ground, R.G. started playing with her body. AfterE.H. saw R.G. playing with Harris's body, E.H. got on his bike, rode home and watched cartoons. E.H. essentially repeated his account of what happened in the presence of a youth officer. Thereafter, both boys were remanded into juvenile custody and charged in delinquent petitions withfirst degree murder.

On September 4, 1998, after receiving additional physical evidence relating to theinvestigation, the State entered a nolle prosequi against both R.G. and E.H.

Petitioner contends that the trial court abused its discretion when it failed to appoint a specialprosecutor to investigate the charges he raised against Nathaniel and Cassidy. Petitioner maintainsthat Nathaniel and Cassidy fabricated confessions from E.H. and R.G. and that Nathaniel presentedfalse testimony at the probable cause hearing. However, petitioner fails to present this court withany specific facts or circumstances to show that the conduct of Nathaniel and Cassidy throughoutthe Ryan Harris criminal investigation would warrant or require the appointment of a specialprosecutor. Additionally, petitioner has not provided this court with case law to support hiscontention.

Petitioner argues more specifically that the familial relationship between Detective Cassidyand Scott Cassidy creates a conflict of interest. Scott Cassidy is the supervisor of the OrganizedCrime Division of the Cook County State's Attorney's office. As noted by the State, in this capacity,Scott Cassidy would have no involvement in any investigation or prosecution of misconduct relatingto the Ryan Harris sexual assault and murder. The State asserts and the petitioner concedes that aswith all investigations of this nature, the Harris investigation would be handled by the PublicIntegrity Unit of the State's Attorney's office. We do not find that the allegation of the relationshipbetween an investigating officer and one employee of the State's Attorney's office would create asituation that would require the appointment of a special prosecutor as a matter of law.

In Baxter v. Peterlin, 156 Ill. App. 3d 564, 509 N.E.2d 156 (1987), this court noted thatbefore a trial court is required to appoint a special prosecutor due to a conflict of interest, thepetitioner must "plead and prove specific facts regarding the nature of the alliance as well as factstending to show the State's Attorney would not zealously represent the People of the State of Illinoisbecause of this alliance." Baxter, 156 Ill. App. 3d at 566. Other than conclusory allegationsregarding one employee in the State's Attorney's office, petitioner has failed to provide this courtwith specific facts regarding the nature of the alliance between the State's Attorney and DetectiveCassidy that would mandate a special prosecutor.

Petitioner further argues that the State's Attorney has an "interest" in the investigation andprosecution of petitioner's charges against Assistant State's Attorney Michael Oppenheimer. In hisbrief, petitioner contends that the State's Attorney may be called as a witness and that this possibilitynecessitates the appointment of a special prosecutor. In support of his argument, petitioner citesMcDonald v. County Board, 146 Ill. App. 3d 1051, 497 N.E.2d 509 (1986), and Sommer v. Goetze,102 Ill. App. 3d 117, 429 N.E.2d 901 (1981). In McDonald, the sheriff of Kendall County sued thecounty board of Kendall County for money from the "investigations" budget that was designated forthe State's Attorney's operations and not the sheriff's operations. McDonald also sought theappointment of a special prosecutor; this motion was denied by the trial court. The appellate courtheld that the State's Attorney, while not a party to the litigation, had a personal interest in the suit asit arose out of a direct controversy between the sheriff and the State's Attorney concerning formerlyshared resources. Additionally, the probability of the State's Attorney being called as a witness wasgreat and the State's Attorney himself filed a petition for the appointment of a special State'sAttorney for the Kendall County Board, stating that such an appointment was necessary because theState's Attorney was "interested" in the litigation. McDonald, 146 Ill. App. 3d at 1056-57. InSommer, a Tazewell County deputy sheriff was dismissed from his position with the sheriff's officestemming from a heated argument between himself and an assistant State's Attorney at an EastPeoria tavern. There, the court held that the trial court abused its discretion in refusing to appointa special prosecutor where the assistant State's Attorney was the complainant and key eyewitness.

Like McDonald, here the State's Attorney is not a party to the litigation. Unlike McDonald,we do not find that the State's Attorney has a personal interest in the litigation. Furthermore,petitioner has provided this court with no argument to find the contrary. Sommer is also easilydistinguishable from the instant case, as the complainant in Sommer that instigated the entirelitigation was an assistant State's Attorney.

In People v. Arrington, 297 Ill. App. 3d 1, 3, 696 N.E.2d 1229 (1998), the defendant arguedthat the trial court erred in declining to appoint a special prosecutor in his case. There, the defendantwas charged with attempted robbery and aggravated battery when he attempted to rob a grocery storeand hit the manager of the store over the head with a nonfunctioning replica of a pistol. The factsrevealed that the State's Attorney was "interested" in the action because his cousins owned the storethat the defendant attempted to rob. Arrington, 297 Ill. App. 3d at 2-4. In its analysis, the appellatecourt noted that the test to determine whether to appoint a special prosecutor depends upon whetherthe nature of the interest is personal. The court stated that when the alleged interest in question ispersonal, a defendant "must show either (1) that the relationship involves significant emotional ties;or (2) that defendant suffered 'actual and substantial prejudice.' [Citations]." Arrington, 297 Ill. App.3d at 3-4. The court found no "per se" conflict of interest and stated that the defendant had failedto present any evidence that the relationship between the store owner and the State's Attorneyinvolved such emotional ties that the State's Attorney's personal interests influenced the dischargeof his duties. The court also found that the defendant presented no evidence that the alleged interestcaused him actual and substantial prejudice. Arrington, 297 Ill. App. 3d at 4. In the instant case, thepetitioner has not provided, and the record does not support, any allegation of "significant emotionalties" that would prevent the State's Attorney from discharging his duties. Additionally, in his brief,the petitioner has failed to provide this court with any allegations of actual and substantial prejudicestemming from the trial court's denial of his request for a special prosecutor. Moreover, we find thatthis lack of actual and substantial prejudice is reinforced by the fact that the charges against bothE.H. and R.G. were dismissed.

We find that People ex rel. York v. Downen, 119 Ill. App. 3d 29, 456 N.E.2d 286 (1983), ispersuasive. Alan Downen, the State's Attorney for Hamilton County, sought to conduct a grand juryinvestigation into election irregularities involving absentee ballots. The trial court appointed aspecial prosecutor for the purposes of conducting such an investigation. The petitioner argued, interalia, that the State's Attorney's capacity as advisor to the county clerk and the absentee ballots castby the State's Attorney's grandmother and ex-wife created a conflict of interest and made himpersonally interested. The appellate court disagreed and stated that the petitioner had failed toproduce specific evidence that would have given rise to a conflict of interest on the part of therespondent. The reviewing court reversed the trial court's decision and noted: "A special prosecutormay not be appointed solely because of the suspicions or speculations of the petitioners." Downen,119 Ill. App. 3d at 33-34.

In In re Grand Jury Investigation of Swan, 92 Ill. App. 3d 856, 415 N.E.2d 1354 (1981), theissue of the appointment of a special prosecutor was also addressed. There, Swan was found guiltyof contempt for refusing to obey a trial court order that he comply with a grand jury subpoena. Swancontended at the trial level that a special prosecutor should have been appointed because of a conflictof interest. Swan alleged that the State's Attorney had represented him in his capacity as a supervisorof York Township and as a member of the county board, and that he was still being represented inseveral pending suits. Swan argued that the conflict of interest stemmed from being investigated bythe State's Attorney who represented him (Swan) in his official capacity. This court noted that toadopt Swan's position "would be to require the appointment of a special prosecutor in everyinvestigation of official misconduct involving county officials. *** Since [petitioner] failed toproduce any evidence of a specific conflict of interest, his argument is without merit." In re GrandJury Investigation of Swan, 92 Ill. App. 3d at 863. Likewise, we find that here petitioner has failedto allege any specific facts of a specific conflict. We note, as the State and trial court noted below,that Michael Oppenheimer is one of 900 assistant State's Attorneys. There are no facts to suggestthat Oppenheimer's employment as an assistant State's Attorney would hinder any investigation thePublic Integrity Unit may conduct regarding the petitioner's claims. Importantly, we agree with thecourt's reasoning in Swan that if we adopted the petitioner's position here, we would create a climatewhereby the appointment of a special prosecutor would be required in every situation where anallegation of misconduct on the part of the investigating officers or the assistant State's Attorneysis made. We also note that some of the allegations presented in the petition are similar to allegationsroutinely made in motions to suppress evidence and motions to quash arrest. Moreover, we do notbelieve that the argument advanced by the petitioner supports the intent behind the statute or theguidance provided by case law and we, therefore, decline to expand the law to the degree set forthby the petitioner.

In support of our holding, we echo the trial court's statement:

"Disqualification of a duly elected State's Attorney must not be takenlightly, for in essence such action disenfranchises the very electoratewho in its wisdom has selected that person for public office. TheOffice of the State's Attorney is an office of constitutional dimensionreposing in the executive branch of government, co-equal to thelegislature as well as the judiciary. Although the legislature hasempowered judges to effect the removal of the State's Attorney incertain limited situations, respect for the doctrine of separation ofpowers militates against the exercise of such power unless clearlywarranted. Petitioner[] has failed to provide such a basis here."

We agree with the trial court. We cannot say that the State's Attorney in the present case was"interested" in the litigation for purposes of the statute governing the appointment of a specialprosecutor. The State's Attorney was not a party to the litigation nor was he interested as a privateindividual. Petitioner has failed to plead any facts which show that the State's Attorney had"significant emotional ties." Petitioner has also failed to plead facts that show he suffered "actualand substantial prejudice." Our de novo review of the amended petition reveals that many if notmost of the allegations contain conclusions unsupported by specific facts. Therefore, we affirm thedecision of the trial court.

Affirmed.

GORDON and CAHILL, concur.