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FIFTH DIVISION
August 30, 2002

No. 1-01-0182

JUSTICE QUINN delivered the opinion of the court:

On February 8, 2000, petitioner, Patsy McCall, filed apetition for the appointment of a special prosecutor to investigateand prosecute unknown Chicago police officers for the fatalshooting death of her son, Reginald Cole. Cole was in the custodyof the Chicago police department when the shooting occurred. CookCounty State's Attorney Richard A. Devine filed a motion for leaveto intervene, which was granted by the trial court over McCall'sobjections. Devine then filed a motion for judgment on thepleadings. Following argument by the parties, the trial courtentered an 18-page order granting Devine's motion and orderingjudgment on the pleadings and dismissed the petition forappointment of a special prosecutor.

McCall now appeals. On appeal, McCall argues that the trialcourt erroneously granted the motion for judgment on the pleadingswhere the petition established a cause of action for theappointment of a special prosecutor. McCall argues that Devine'srelationship with the Chicago police department has created aconflict of interest that prohibits Devine from conducting a fairand impartial investigation and prosecution of the officers.

For the reasons that follow, we affirm.

I. BACKGROUND

On October 30, 1999, Reginald Cole was transferred from theIllinois River Correctional Facility in Canton, Illinois, to theChicago police Area One facility located at 5101 South WentworthAvenue in Chicago. At that time, Cole was in the custody of theIllinois Department of Corrections serving a 10-year sentence forarmed robbery. Cole was transported to Area One to be questionedin connection with an ongoing homicide investigation. Within hoursof his arrival, Cole died as a result of gunshot wounds sufferedwhile in the custody of Chicago police officers at Area One. Boththe Cook County State's Attorney's office and the Cook Countymedical examiner's office began investigating the incident on theevening Cole died.

On October 31, 1999, the medical examiner issued a reportwhich stated that Cole sustained three gunshot wounds: one to theabdomen, one to the right arm and one to the mouth. The reportconcluded that Cole died as a result of a self-inflicted gunshotwound to the mouth. The State's Attorney's office similarlyconcluded that Cole's death was not a homicide and determined thatno charges would be filed against any officers involved in theincident.

On February 8, 2000, Patsy McCall, Cole's mother, filed apetition for the appointment of a special prosecutor to investigateand criminally prosecute the unknown officers involved in theshooting death of her son. McCall's claim for relief is based uponsection 3-9008 of the Counties Code (55 ILCS 5/3-9008 (West 2000))which provides:

"Whenever the State's [A]ttorney is sick or absent, orunable to attend, or is interested in any cause orproceeding, civil or criminal, which it is or may be hisduty to prosecute or defend, the court in which saidcause or proceeding is pending may appoint some competentattorney to prosecute or defend such cause or proceeding

***" 55 ILCS 5/3-9008 (West 2000).

McCall's petition alleges that there are gross conflicts ofinterest in the State's Attorney investigating and prosecutingofficers in the Chicago police department for Cole's death. Specifically, McCall alleged that the State's Attorney and theChicago police department have a relationship of "cordiality,compatibility, support, [and] fidelity" and that this relationshipmakes it impossible for the State's Attorney's office to conduct an"independent, unbiased, honest and impartial investigation into theshooting death of Reginald Cole." The petition stated that thisrelationship has formed as a result of the fact that "well over 90%of the criminal cases prosecuted by the Cook County State'sAttorney's office have been investigated and brought to the CookCounty State's Attorney's office by Chicago police officers."

Additionally, McCall's petition alleged that certain unknownChicago police officers, assistant State's Attorneys and medicalexaminers conspired to conceal, distort and fabricate thecircumstances surrounding Cole's death. In support of that claim,McCall asserts that Cook County assistant State's Attorneys andCook County medical examiners are not normally called to the sceneof a homicide to investigate, and it is not their duty orresponsibility to investigate the facts and circumstancessurrounding a homicide.

The petition also states that representatives of the Chicagopolice department publicly provided false and contradictory factualversions of these circumstances. In support of that assertion,McCall cites to five Chicago Tribune articles and commentaries. The alleged versions were summarized by the trial court as follows:

"In the first version, set forth in the commentaryof Salim Muwakkil, November 8, 1999, the writer notesthat first accounts of the incident reported 'that the 38year old Cole was shot by officers when he allegedlyattacked them during a mysterious October 30interrogation at the Wentworth Headquarters.'

In the second version, reported in the Chicago Tribune by Lisa Donovan and Jeffrey Bliss, October 31, 1999, the writers state that Cole 'was shot and killed inside an interview room...after he allegedly attacked a detective, that Cole was shot in the head and the abdomen...there was a struggle and the offender was shot.'

In the third version, which lacks attribution, Colegrabbed a metal paper spindle and attacked the detective,that Cole grabbed the detective's gun from his holsterand then shot at the detective as he was fleeing from theroom, that two other detectives who witnessed theincident returned the fire, striking Cole and that Colethen turned the gun on himself and inflicted one gunshotwound to the head area.

In the fourth version reported in the ChicagoTribune by Margaret O'Brien and Naomi Dillon, November 1,1999, according to Wentworth Area Commander Frank Trigg:

'Cole grabbed a seven-inch paper spike...and lunged atthe detective...that while the two were struggling, Colegrabbed the detective's gun ripping the holster strap inthe process...Cole then fired at the officer but missed. A second detective outside the office heard the shot,came to the door and fired at Cole, who was crouchedagainst a cabinet and pointing a gun at the one door tothe room....After the shot missed Cole, the secondofficer took cover behind the door frame as the firstofficer took cover on the floor. A third shot was thenheard...that police believe Cole put the gun in his mouthand shot himself in the head...that after the third shot,Cole was still crouched at the file cabinet with his gunpointed toward the door. At that point, another detectivecame to the door and shot Cole in the left side of historso, after which Cole slumped to the ground.'

In the fifth version, set forth in another ChicagoTribune article by Monica Davey, December 1, 1999, thewriter reports that according to police spokesman PatCamden:

'About 7:00 p.m, on October 30, at Wentworth, 5101South Wentworth Ave., Cole asked the detective who wasquestioning him to be moved from an ordinaryinterrogation room to somewhere that he couldn't beoverheard. After moving to a small office, Cole grabbeda 7-inch paper spike intended for phone messages andlunged at the detective. In the struggle, Cole grabbedthe detective's gun. He fired at the officer but missed. With the sound of the shot two other officers bolted intothe office, and each fired at Cole. Almostsimultaneously, Cook County prosecutors say, Cole shothimself in the mouth. Camden said he was not sure theorder of the last shots fired. A medical examiner'sreport shows three gunshot wounds on Cole's body: in hismouth, in his abdomen, and on his right arm. Theexaminer's report, which categorized Cole's death as asuicide, said the wound in Cole's mouth was what killedhim.'"

On April 12, 2000, following courtroom assignment, Richard A.Devine, in his official capacity as Cook County State's Attorney,filed a motion to intervene in the instant matter. McCall filed anobjection to the motion and, following oral argument, the trialcourt granted Devine's motion to intervene.

Subsequently, on September 21, 2000, Devine filed a motionunder section 2-615(e) of the Code of Civil Procedure (735 ILCS5/2-615(e) (West 2000)) for judgment on the pleadings. The motionalleged that McCall failed to establish, as a matter of law, thatthere was a conflict of interest which precluded Devine frominvestigating and deciding whether to prosecute anyone for Cole'sdeath. For purposes of the motion, Devine admitted as true theallegation that over 90% of the criminal cases prosecuted by theCook County State's Attorney's office have been investigated andbrought to the Cook County State's Attorney's office by the Chicagopolice department. Devine asserted, however, that the fact thatChicago police officers "investigate crimes and seek the initiationof criminal prosecutions does not mean that the State's Attorney ofCook County has a personal interest in each member of thedepartment sufficient to remove him from his statutorily mandatedresponsibilities." Devine asked the court to disregard McCall'sremaining allegations as either conclusory in nature or surplusage. Devine denied interest in the matter as a private individual and/oras an actual party to the action.

On December 5, 2000, following oral argument, the trial courtentered a written order granting Devine's motion for judgment onthe pleadings. Specifically, the trial court rejected McCall'sallegation that the police offered false and contradictory factualversions of the circumstances of the shooting. The court foundthat the allegations were "wholly conclusory" and stemmed fromhearsay statements contained in newspaper articles. Moreover, thecourt found that the differences in the versions of events could beattributed to "shifting details as a natural outgrowth of anyevolving investigation." The trial court found McCall's assertionthat assistant State's Attorneys and medical examiners are notcalled to the scene of homicides, and that it is not their duty toinvestigate such crimes, was "utterly unfounded." Finally, thetrial court found that McCall failed to establish as a matter oflaw that Devine was interested in the instant matter. Specifically, the court found that Devine would not be a party toany investigation or proceeding sought by McCall and that Devinewas not interested as a private individual in the investigation ofCole's death.

McCall now appeals from that judgment.

II. ANALYSIS

McCall argues that the trial court erroneously grantedDevine's motion for judgment on the pleadings where the petitionfiled established a cause of action for appointment of a specialprosecutor to investigate and prosecute the death of Reginald Cole. Specifically, McCall alleges that the relationship between the CookCounty State's Attorney and the Chicago police department createsa conflict of interest that prevents Devine from conducting a fairand impartial investigation and prosecution.

Judgment on the pleadings is proper only where no genuineissue of material fact exists and the moving party is entitled tojudgment as a matter of law. Chicago Title & Trust Co. v.Steinitz, 288 Ill. App. 3d 926, 934 (1997). In ruling on a motionfor judgment on the pleadings, only those facts apparent from theface of the pleadings, matters subject to judicial notice, andjudicial admissions in the record may be considered. M.A.K. v.Rush-Presbyterian-St. Luke's Medical Center, 198 Ill. 2d 249, 255(2001). When evaluating the facts, a court must construe theevidence strictly against the movant and liberally in favor of thenonmoving party. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460,483 (1998). Our review is de novo. Board of Trustees of theUniversity of Illinois v. City of Chicago, 317 Ill. App. 3d 569,571 (2000).

When a party moves for judgment on the pleadings pursuant tosection 2-615(e) of the Code of Civil Procedure (the Code) (735ILCS 5/2-615(e) (West 1994)), it concedes the truth of thewell-pled facts in the respondent's pleadings. Richco Plastic Co.v. IMS Co., 288 Ill. App. 3d 782, 786 (1997). This court hasstated that a motion for judgment on the pleadings may be addressedto a complaint alone. Pioneer Bank & Trust Co. v. Austin Bank ofChicago, 279 Ill. App. 3d 9, 13 (1996). In deciding the motion, acourt must disregard all surplusage and conclusory allegations. Teeple v. Hunziker, 118 Ill. App. 3d 492, 497 (1983).

As previously stated, "Whenever the State's [A]ttorney is sickor absent, or unable to attend, or is interested in any cause orproceeding, civil or criminal, which it is or may be his duty toprosecute or defend, the court in which said cause or proceeding ispending may appoint some competent attorney to prosecute or defendsuch cause or proceeding ***." 55 ILCS 5/3-9008 (West 2000). InEnvironmental Protection Agency v. Pollution Control Board, 69 Ill.2d 394 (1977), our supreme court interpreted section 6 of "An Actin regard to attorneys general and state's attorneys" (Ill. Rev.Stat. 1975, ch. 14, par. 6), which provided:

"Whenever the attorney general or state's attorneyis sick or absent, or unable to attend, or is interestedin any cause or proceeding, civil or criminal, which itis or may be his duty to prosecute or defend, the courtin which said cause or proceeding is pending may appointsome competent attorney to prosecute or defend such causeor proceeding ***." Ill. Rev. Stat. 1975, ch. 14, par.6.

Effective January 1, 1988, chapter 14, section 6 was amended sothat Attorneys general and State's Attorneys would be consideredunder separate acts compiled in the Illinois Revised Statutes. Theappointment of counsel to replace the Attorney General is nowaddressed by section 6 of the Attorney General Act (15 ILCS 205/6(West 1998)). The pertinent language of section 3-9008 of theCounties Code (55 ILCS 5/3-9008 (West 2000)) is identical to thatof section 6, which was interpreted by our supreme court inEnvironmental Protection Agency, 69 Ill. 2d 394.

In Environmental Protection Agency, the supreme court agreedwith the Attorney General's interpretation that "interest" undersection 6 exists only in two situations: "[t]he first is where theAttorney General is interested as a private individual. [Citation.] The second situation is where the Attorney General is an actualparty to the action." Environmental Protection Agency v. PollutionControl Board, 69 Ill. 2d at 400-01. The court specifically heldthat "[t]he provision of section 6 that special counsel may beappointed where the Attorney General is interested should belimited to the situations above." Environmental Protection Agency,69 Ill. 2d at 401.

At oral argument, McCall's attorney acknowledged that hiscomplaint never alleged Devine was "interested" in either of thetwo manners discussed in Environmental Protection Agency. Namely,the complaint never alleged that Devine was interested as a"private individual" or that he or the State's Attorney's officewould be "an actual party to the action." McCall's attorney arguesthat the required statutory interest is not limited to these twoinstances alone.

The decision to appoint a special prosecutor under section 3-9008 of the Counties Code (55 ILCS 5/3-9008 (West 2000)) lieswithin the trial court's discretion. People v. Morley, 287 Ill.App. 3d 499, 504 (1997). This provision's purpose is "to preventany influence upon the discharge of the duties of the State'sAttorney by reason of personal interest." Morley, 287 Ill. App. 3dat 503-04. This court has consistently held that a State'sAttorney is "interested" for purposes of section 3-9008 only wherehe is interested as a private individual or his office is a partyto the action. People v. Tracy, 291 Ill. App. 3d 145, 151 (1997);People v. Morley, 287 Ill. App. 3d 499, 504 (1997); People v. Dall,207 Ill. App. 3d 508, 530 (1991); People v. Trolia, 107 Ill. App.3d 487, 496 (1982)(interpreting section 6).

On appeal, McCall relies heavily on People v. Courtney, 288Ill. App. 3d 1025 (1997), for its holding that it is improper foran attorney to represent conflicting interests or undertake todischarge inconsistent duties, and "the public must be able tomaintain the right to believe in the total integrity of the Bar asa whole." Courtney, 288 Ill. App. 3d at 1032-33. In Courtney, thedefense attorney who represented the defendant for the first 14months his sexual assault case was pending was appointed as theState's Attorney of Kankakee County. The Kankakee County State'sAttorney's office informed the trial court that a specialprosecutor would be appointed. After several continuances, thecase was tried by a member of the Kankakee County State'sAttorney's office. The appellate court found that prior to becomingState's Attorney, defendant's counsel answered discovery, "madenumerous court appearances on behalf of the defendant and wasclearly privy to the defendant's confidences." Courtney, 288 Ill.App. 3d at 1032. The court held that a per se conflict existed anda special prosecutor should have been appointed. Courtney, 288 Ill.App. 3d at 1034.

The facts in Courtney bear no relation to those in the presentcase and, consequently, its holding is of negligible assistance tothis court. However, the State has cited a case in which theappellate court seems to apply a more expansive interpretation ofthe principle of conflict of interest than that set out by oursupreme court in Environmental Protection Agency. In Baxter v.Peterlin, 156 Ill. App. 3d 564 (1987), the plaintiff, an Ottawapolice officer, filed a complaint seeking appointment of a specialprosecutor to prosecute the alleged wrongdoings of the mayor ofOttawa. Plaintiff alleged the defendant, the State's Attorney ofLa Salle County, had a disqualifying interest in any prosecution ofthe mayor as a result of the political relationship between theState's Attorney and the mayor. The circuit court, in acceptingthe complaint's factual allegations as true, dismissed thecomplaint, finding plaintiff's allegations insufficient.

On appeal, the Third District of the Appellate Court held:

"We agree with plaintiff's contention that apolitical alliance may create sufficient conflict ofinterest to require appointment of a special prosecutor. Nevertheless, 'political alliance' is an amorphousconcept. It might range from a prosecutor belonging tothe same political party as the person he is called uponto prosecute, to a situation in which a prosecutor isclearly beholden to a potential defendant for politicalreasons. Before a court need appoint a special prosecutorbecause the State's Attorney has a conflict of interestbecause of a 'political alliance,' a petitioner mustplead and prove specific facts regarding the nature ofthe alliance as well as facts tending to show the State'sAttorney would not zealously represent the People of theState of Illinois because of the alliance. To require apetitioner to plead and prove anything less would openthe door to requiring a special prosecutor be appointedany time a public official of whatever rank is suspectedof wrongdoing." Baxter, 156 Ill. App. 3d at 566.

The court went on to state that absent specific facts regarding thealleged political ties which would make it improbable that theState's Attorney would carry out his duties in an unbiased manneron a specific case, the statute does not require appointment of aspecial prosecutor to substitute for the State's Attorney. Baxter,156 Ill. App. 3d at 566-67. Because the plaintiff's allegationsregarding any political ties were "speculative and conclusory," thecircuit court properly declined to appoint a special prosecutor. Baxter, 156 Ill. App. 3d at 567.

In analogizing Baxter to the case at bar, it is clear thatMcCall's petition is similarly insufficient to warrant theappointment of a special prosecutor. McCall has failed to pleadspecific facts regarding the alleged relationship of "cordiality,compatibility, support, [and] fidelity" between Devine and theChicago police department which would make it improbable thatDevine would conduct an unbiased investigation and prosecution inthis case. In support of her argument that a disqualifying bondexists, McCall's petition alleges "well over 90% of the casesprosecuted by the Cook County State's Attorney's office are indeedinvestigated and brought by the Chicago police department." Weagree with the trial court that this fact alone does not establisha disqualifying bond.

Accepting the allegation as true, the trial court stated "ithardly follows that the purported fidelity bond and relationshipcomplained of by petitioner would have impacted on respondent'sinvestigation or prosecution of police officers suspected of wrongdoing." The court continued:

"On the contrary, the State's Attorney's office in thiscourt's memory has never hesitated to prosecute lawenforcement officials where the evidence warrantedcriminal charges. See e.g., People v. Davis, 281 Ill.App. 3d 984, (1996) (director of news affairs for theChicago police department prosecuted for officialmisconduct); People v. Sorice, 182 Ill. App. 3d 949(1989) (Chicago police officer prosecuted for conspiracyto commit burglary); People v. Melchor, 180 Ill. App. 3d372 (1989) (Chicago police officer prosecuted fordelivery of a controlled substance); People v. Earullo,113 Ill. App. 3d 774 (1983) (Chicago police officerprosecuted for involuntary manslaughter); People v.McCarthy, 102 Ill. App. 3d 519 (1981) (Chicago policeofficer charged with attempt murder and aggravatedbattery); People v. Molsby, 66 Ill. App. 3d 647 (1978)(Chicago police officer prosecuted for possession of acontrolled substance); and People v. Jordon, 15 Ill. App.3d 672 (1973) (Chicago police officer prosecuted forbribery and official misconduct)."

For this court to hold that the trial court abused itsdiscretion in denying the petition would require us to hold thatMcCall's allegation that 90% of the Cook County State's Attorney'soffice's cases came from the Chicago police department will alwaysrequire that a special prosecutor be appointed whenever anyonealleges wrongdoing on the part of Chicago police departmentpersonnel. While this allegation does establish a closeprofessional working relationship, nothing in the allegation showsthat Devine would not zealously represent the People of the Stateof Illinois in this case of alleged police misconduct.

McCall further supports her argument on appeal with theassertion that the State's Attorney failed to investigate orprosecute police officers involved in "the shooting death of RobertRuss; the arrest and detention of R.G. and E.H.; the use ofperjured evidence resulting in the convictions and ultimately the20 year prison terms of Willie Rainge, Kenny Adams, VernealJimerson and Dennis Williams; or the use of perjured testimony toconvict and imprison John Willis and Anthony Porter and othercases." The convictions of Rainge, Adams, Jimerson and Williamsarose out of an investigation by the Cook County sheriff'sdepartment and several suburban police departments. People v.Rainge, 211 Ill. App. 3d 432 (1991). Using the figures supplied byMcCall, significantly less than 10% of the criminal casesprosecuted by the Cook County State's Attorney's office wereinvestigated by those departments. The fact that the State'sAttorney's office failed to prosecute the police officers involvedin the Rainge case actually contradicts McCall's assertion that itis the State's Attorney's office's dependent relationship with theChicago police department that prevents that office frominvestigating and prosecuting Chicago police officers. Applyingthe rationale advanced by McCall on appeal, courts should appointspecial prosecutors to investigate every complaint of possiblewrongdoing by law enforcement officers of any agency that has aworking relationship with the Cook County State's Attorney'soffice. We flatly reject this argument.

In affirming the denial of a request for appointment ofcounsel other than the Attorney General's office, our supreme courthas explained: "It seems to us that if the Attorney General is tohave the unqualified role of chief legal officer of the State, heor she must be able to direct the legal affairs of the State andits agencies. Only in this way will the Attorney General properlyserve the State and the public interest." Environmental ProtectionAgency, 69 Ill. 2d at 401-02.

In support of the notion that Devine's office and the Chicagopolice are so intertwined as to create a conflict of interest,McCall avers that Devine's office is dependent on the Chicagopolice to "obtain evidence upon which to base its prosecutions ofalleged criminal conduct." Again, all this allegation does isdemonstrate that a close professional relationship exists betweenthese two agencies and, in a very limited way, defines the natureof the relationship. Generally, "[p]erformance of one's officialfunctions will not create a conflict of interest." People v. Dall,207 Ill. App. 3d at 530, citing Environmental Protection Agency,69 Ill. 2d 394. In addition:

"[T]he State's Attorney does not represent individuals orspecific witnesses during the course of criminalprosecutions. Criminal prosecutions are commenced in thename of and on behalf of the people of the State ofIllinois. To hold that a special prosecutor must alwaysbe appointed whenever a victim or witness is employed bya state, county, or local agency would be an illogical,as well as impractical, encroachment upon the authorityof a constitutional officer." People v. Morley, 287 Ill.App. 3d 499, 505 (1997).

McCall has failed to allege any specific failure to obtainevidence, or any specific cover-up of evidence, which wouldillustrate that Devine has abandoned his duties to the people ofthe State of Illinois in this particular case.

In further support of her argument, McCall cites five ChicagoTribune articles. McCall alleges that the differing police versionsreported in these articles were implausible and are proof that aconspiracy and cover-up existed between Devine and the Chicagopolice department. We disagree. The contents of newspaper articlesare hearsay and therefore inadmissible. Betts v. Manville PersonalInjury Settlement Trust, 225 Ill. App. 3d 882, 924 (1992). Thereason that newspaper articles are treated as hearsay has beeneloquently stated as follows:

"It is very obvious that factual matters should not beproven by newspaper reports of occurrences. While thereis an inclination on the part of the general public toaccept newspaper stories at face value-and the quality ofthe reporting should be careful enough that such relianceis generally justified-the fact remains that news storiesare frequently based on the hearsay statements of others,or on the statements of bystanders, witnesses to theoccurrence, public officers, and other informants. Because of this they are often, if not notoriously, aptto be inaccurate. This is not always due to carelessreporting or slanting or over-emphasis, but rather to thepressure of haste and to the inherent fact that the newsstory does not purport to present the results of carefulinvestigations, or at least that it purports to reportonly, or mostly, what others have said about the matter."R. Steigmann, Illinois Evidence Manual