JESSICA THOMAS, Auditоr of the County of Peoria, Plaintiff-Appellant, v. THE COUNTY OF PEORIA; ANDREW RAND, in His Official Capacity as Chairman of the Board of Peoria County; and JAMES FENNELL, in His Official Capacity as Vice-Chairman of the Board of Peoria County, Defendants-Appellees.
NO. 4-24-1121
IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT
September 2, 2025
2025 IL App (4th) 241121
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Steigmann and Cavanagh concurred in the judgment and opinion.
Appeal from the Circuit Court of Peoria County No. 21MR992 Honorable Stewart James Umholtz, Judge Presiding.
Justices Steigmann and Cavanagh concurred in the judgment and opinion.
OPINION
¶ 1 This case returns to us following our remand in Thomas v. County of Peoria, 2023 IL App (4th) 221075. Plaintiff, Jessica Thomas, in her official capacity as auditor of Peoria County, now appeals from the trial court‘s final order in her mandamus and declaratory judgment action against defendants—the County of Peoria; Andrew Rand, in his official capacity as chairman of the board of Peoria County; and James Fennell, in his official capacity as vice-chairman of the board of Peoria County. The court‘s order (1) dismissed plaintiff‘s action with prejudice and (2) awarded in part and denied in part her request for attorney fees and costs. Plaintiff argues the court abused its discretion in denying a portion of the attorney fees she requested because the court improperly concluded that the order appointing a special prosecutor to represent
¶ 2 I. BACKGROUND
¶ 3 As our opinion from defendant‘s prior appeal set forth much of the factual background of this matter, we discuss here only those facts necessary to provide context for this appeal. See Thomas, 2023 IL App (4th) 221075, ¶¶ 3-11.
¶ 4 Plaintiff was elected to serve a four-year term as auditor of Peoria County in the 2020 general election. On November 15, 2021, plaintiff initiated the instant action in her official capacity as auditor seeking mandamus and declaratory relief. The action arose out of plaintiff‘s allegations that defendants improperly (1) usurped her authority by stripping her office of various responsibilities and (2) sought to eliminate the office of auditor by defunding it. Broadly, plaintiff sought relief that would require defendants to reinstate the duties stripped from her office and restore such funding as would allow her to complete her duties.
¶ 5 On December 10, 2021, the trial court, the Honorable David A. Brown presiding, found the Peoria County state‘s attorney had a duty to represent both plaintiff and defendants, such that an actual conflict of interest existed. Accordingly, pursuant to
¶ 6 While this litigation was pending, defendants passed a resolution allowing a referendum (Referendum) to be placed on the November 8, 2022, general election ballot asking
“Shall Peoria County eliminate the internal Office of County Auditor when Peoria County already has an external Auditor as required by state law? This would be a cost savings of approximately $150,000 annually.”
Peoria County voters aрproved the Referendum during the November 8, 2022, general election. On November 11, 2022, defendants sent plaintiff a letter indicating the “Office of Auditor will be eliminated as of November 30, 2022 pursuant to the General Election Referendum” and, accordingly, “the County will cease funding it.”
¶ 7 Upon receipt of defendants’ letter, plaintiff, on November 16, 2022, filed a motion for leave to file an amended complaint. Paragraph one of the proposed amended complaint stated, “Plaintiff *** at all relevant times was and is the duly elected Auditor of the County of Peoria. Plaintiff brings this lawsuit in her official capacity as Auditor of the County of Peoria.” The proposed complaint included new facts detailing defendаnts’ November 11, 2022, letter and added two additional counts. In count XII, plaintiff alleged defendants sought to use the Referendum to “end the [auditor‘s] term on November 30, 2022,” which “infringed upon [the] statutorily protected power of the Auditor.” Accordingly, plaintiff requested (1) a declaratory judgment that “any action to end the term of the elected County Auditor by the Defendants prior to the end of her elected term *** is unconstitutional as it improperly violates Voters’ Constitutional rights” and (2) a permanent injunction prohibiting defendants “from ending the elected term of the [auditor] based upon the 2022 General Election at any point prior to the natural conclusion of her elected term in 2024.” In count XIII (mislabeled in the amended complaint as another count XII), plaintiff alleged defendants’ refusal to fund her office after November 30, 2022, would hinder her “ability to carry
¶ 8 The trial court, the Honorable James A. Mack presiding, held a hearing on plaintiff‘s motion for leave to file an amended complaint on November 17, 2022. Plaintiff argued she would “effectively be denied all relief if [Y]our Honor doesn‘t give us the opportunity to amend our mandamus claim to seek to enjoin them from ceasing to fund on November 30th.” Defendants opposed the motion, arguing plaintiff had long been aware of their efforts to eliminate the office but made no effort for months to amend the complaint to raise the proposed claims. Additionally, defendants argued the proposed amendments were not sufficiently related to the cause of action because they were not mandamus claims but challenges to the language and constitutionality of the Referendum. Defendants highlighted plaintiff had filed a separate action in her individual capacity that, inter alia, challenged the language of the Referendum. In that case, plaintiff requested a preliminary injunction to prevent the Peoria County Election Commission from counting and certifying the ballots of the November 8, 2022, general election, in part, due to the Referendum‘s language. The court denied plaintiff‘s request, and this court affirmed. See generally Alms v. Peoria County Election Comm‘n, 2022 IL App (4th) 220976.
¶ 9 Over defendants’ objection, the trial court determined the proposed amendments were “substantially related to the underlying claims that have been previously filed” and “allow[ed] the filing of the first amended complaint.” The court noted defendants still had an opportunity to challenge the amended complaint, stating, “[I]f you want to file a motion with
¶ 10 Defendants filed no motion challenging the propriety of the first amended complaint or plaintiff‘s ability to bring counts XII and XIII. Instead, defendants opted to file an answer on December 2, 2022. Their answer “admit[ted] the allegations in paragraph 1.” Moreover, in counts XII and XIII, defendants noted they “restate[d] their answers to paragraphs 1 through 77 as if fully set forth herein.” Defendants also advanced several affirmative defenses, including, inter alia, that plaintiff lacked standing, the “facts alleged *** did not cause any purported harm,” and the trial court lacked subject-matter jurisdiction. Defendants did nоt allege any part of the amended complaint was incorrectly brought in plaintiff‘s official capacity, as opposed to her individual capacity.
¶ 11 On November 23, 2022, plaintiff filed a motion for a preliminary injunction to prevent defendants from ceasing funding to the office of auditor until the end of her elected term. Following a hearing, the trial court, on November 30, 2022, granted a preliminary injunction. On December 9, 2022, defendants filed an interlocutory appeal of the trial court‘s order granting a preliminary injunction, arguing, inter alia, as the Referendum had passed, plaintiff lacked standing to obtain injunctive relief because she no longer had any right to the office of auditor and therefore faсed no injury to any substantive interest. Thomas, 2023 IL App (4th) 221075, ¶ 15. This court agreed with defendants, reversed the trial court‘s order granting a preliminary injunction, and remanded with directions to dissolve the injunction. Thomas, 2023 IL App (4th) 221075, ¶¶ 25, 27.
¶ 12 On remand, defendants filed a motion for immediate dissolution of the preliminary injunction on June 2, 2023. While that motion was pending, defendants, on June 15, 2023, filed a
¶ 13 A hearing on defendants’ motions was held on January 29, 2023. Per the mandate of this court in Thomas, the trial court, the Honorable Stewart J. Umholtz presiding, first orally dissolved the preliminary injunction. The court then heard argumеnt regarding the motion to clarify. Defendants argued counts XII and XIII were raised in plaintiff‘s individual capacity, as she had alleged the Referendum violated “her constitutional right as a voter.” Defendants further argued this court‘s opinion in Thomas had “found that the Plaintiff was acting not in her official capacity with regard to those two counts,” such that “she had no standing to request injunctive relief.” According to defendants, this court “morphed [the cause] into a private cause of action.” Defendants argued, therefore, as to counts XII and XIII, “this was not an action where her attorney would be proceeding as a special prosecutor moving forward to date.”
¶ 14 In response, plaintiff argued the authority grаnted to her counsel in Judge Brown‘s appointment order included the authority to prosecute counts XII and XIII. According to plaintiff, the trial court permitted the amendment of the initial complaint to include those counts, and when
¶ 15 After recognizing the interpretation of the appointment order would determine the scope of the reasonableness of attorney fees and that, at the time the appointment order was entered, “there [were] no counts 12 and 13,” Judge Umholtz granted plaintiff‘s motion for clarification. The court found the appointment order did not encompass “attorneys fees and costs that are related to [counts XII and XIII].” In making its ruling, the trial court explained, “[B]ased upon the language in the order[,] very clearly [the] order took into consideration the Plaintiff being in her official capacity.” Thus, the court was required to interpret the appointment order “strictly and narrowly *** because in the end it‘s the taxpayer that foots the bill, and there needs to be certainty that any appointment in the [breadth] of that special prosecutor‘s appointment be based upon specific facts.” The court further explained,
“[I]n effect, an order appointing a special prosecutor is an order to pay. It is an order to the taxpayer that you are going to pay for this service. And that needs to be strictly and narrowly construed because the taxpayers—that is the public policy that the Court is most interested in protecting is the taxpayer‘s expectation and the taxpayer‘s treatment. And based upon what the Court knows about this proceeding no doubt I can‘t speak for taxpayers but no doubt taxpayers are a bit disappointed with the amount of expenses involved in this matter.”
¶ 16 On February 2, 2024, the trial court entered its written order dissolving the
¶ 17 This appeal followed.
¶ 18 II. ANALYSIS
¶ 19 On appeal, plaintiff argues the trial court‘s order granting defendants’ motion for clarification of the appointment order and denying attorney fees to plaintiff relating to counts XII and XIII of her first amended complaint was an abuse of discretion because the appointment order grantеd counsel the ability to prosecute those counts. Defendants respond the court did not err because counsel‘s prosecution of counts XII and XIII would amount to an improper expansion of the authority granted to counsel in Judge Brown‘s appointment order. Accordingly, defendants contend the court properly denied attorney fees to plaintiff relating to those counts.
¶ 20 We review a trial court‘s determination regarding whether to award authorized attorney fees for an abuse of discretion. Donley v. City of Springfield, 2022 IL App (4th) 210378, ¶ 24. “A trial court abuses its discretion when it acts arbitrarily, without conscientious judgment, or, in view of all of the circumstances, exceeds the bounds of reason and ignores recognized рrinciples of law, resulting in substantial injustice.” In re Marriage of Bradley, 2011 IL App (4th) 110392, ¶ 26. However, a question pertaining to the court‘s authority to grant attorney fees is a question of law, which we review de novo. Donley, 2022 IL App (4th) 210378, ¶ 24.
¶ 21 Plaintiff argues the trial court‘s denial of attorney fees related to counts XII and XIII was based upon an improper reading of Judge Brown‘s appointment order. Specifically, plaintiff contends that, contrary to Judge Umholtz‘s interpretation, the appointment order did not limit her counsel‘s authority to the prosecution of the counts that existed at the time of the entry
¶ 22 Our assessment of this argument requires us to interpret
¶ 23
“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
causе, 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.” 55 ILCS 5/3-9008(a-10) (West 2024).
Once such an attorney is appointed, he or she “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.”
“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 informаtion 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.”
55 ILCS 5/3-9008(c) (West 2024).
¶ 25 Plaintiff, however, asserts her counsel‘s prosecution of those counts does not run afoul of
¶ 26 Our resolution of the parties’ arguments turns on the scope of the authority granted to plaintiff‘s counsel in the appointment order. Mirroring the language of
¶ 27 Defendants’ argument that plaintiff was required to seek an expansion of her counsel‘s authority to bring counts XII and XIII implies the power to prosecute the “сause” or “proceeding” as granted in the appointment order extended only to the counts set forth in the original complaint, i.e., counts I through XI and no further. Defendants’ apparent position is that any matter beyond the claims raised at the outset of the lawsuit or in existence at the time of the appointment order is beyond the scope of the “cause” or “proceeding” to which the appointment order applied. However, given the ordinary meanings of “cause” and “proceeding,” that view is too restrictive. Judge Brown‘s appointment order granted counsel the authority “to prosecute the cause/proceeding on Plaintiff‘s behalf.” As the terms “cause” and “prоceeding” refer broadly to the progression of a lawsuit, we do not interpret the amendment of plaintiff‘s complaint to add additional counts that Judge Mack deemed substantially related to the remaining claims to constitute an “expansion” of a special prosecutor‘s authority. Thus, applying the plain and ordinary meanings of “cause” and “proceeding,” we conclude plaintiff‘s counsel did not exceed the authority contemplated in
¶ 28 Defendants nevertheless argue In re Appointment of Special Prosecutor, 2012 IL App (2d) 120318-U, and Bianchi v. McQueen, 2016 IL App (2d) 150646, compel a different result. Defendants contend these cases establish a plaintiff must file a petition requesting an expansion of prosecutorial authority when, “like here, a case that began as one thing was later desired by thе
¶ 29 Appointment of Special Prosecutor arose out of allegations of wrongdoing by the McHenry County state‘s attorney, among others. Appointment of Special Prosecutor, 2012 IL App (2d) 120318-U, ¶ 3. Bianchi, in turn, arose out of the subsequent malicious prosecution, intentional infliction of emotional distress, and defamation suit filed by the accused individuals against the defendants, an assistant special prosecutor and several investigators, after the accused individuals were acquitted of charges filed by the assistant special prosecutor. Bianchi, 2016 IL App (2d) 150646, ¶ 1. Defendants highlight that in both cases, when the special prosecutors learned of additional alleged misconduct that was not authorized for investigation under the trial court‘s appointment order, they filed a petition to expand the reach of their investigation and prosecutorial authority. Appointment of Special Prosecutor, 2012 IL App (2d) 120318-U, ¶ 8; Bianchi, 2016 IL App (2d) 150646, ¶¶ 4, 10. As defendants themselves concede, however, “the Illinois Appellate Court was not asked to litigate the propriety of that procеdure” in either case but referenced the special prosecutors’ request to expand their investigative and prosecutorial authority only in providing the factual background of the case. In actuality, the issue before the court in Appointment of Special Prosecutor was whether a request for an expansion of authority was required where the investigative company used by the special prosecutors had complied with discovery requests by producing a significant number of documents without first seeking judicial authorization.
¶ 30 Because neither Appointment of Special Prosecutor nor Bianchi addressed the circumstances under which a special prosecutor is required to seek an expansion of the authority granted under an appointment order, they are inapposite.
¶ 31 Defendants alternatively argue plaintiff‘s counsel acted beyond the scope of the appointment order because counts XII and XIII were brought in plaintiff‘s individual capacity, as opposed to her official capacity as auditor, as the relief requested in those counts related to plaintiff‘s personal interests. According to defendants, because plaintiff‘s counsel only had the authority to represent plaintiff in her official capacity, the prosecution of counts XII and XIII was inherently outside the authority of the appointment order. This argument is unavailing.
¶ 32 “A lack of capacity to sue is an affirmative defense on which the defendant bears the burden of proof.” Young America‘s Foundation v. Doris A. Pistole Revocable Living Trust, 2013 IL App (2d) 121122, ¶ 41. The defense of a plaintiff‘s lack of capacity tо sue is “subject to waiver unless it was raised at the earliest opportunity at trial.” People ex rel. Illinois State Dental Society v. Vinci, 35 Ill. App. 3d 474, 477 (1976). Here, following the filing of the first amended
¶ 33 We further note that, to the extent defendants contend this court has already “determined that Counts XII and XIII could not have been official-capacity claims” in our opinion in Thomas, we reject this argument. In Thomas, we held only that plaintiff lacked standing to obtain injunctive relief because, once the office of auditor was eliminated upon certification of the Referendum result, she could not establish she faced an injury to any clearly ascertainable interest. Thomas, 2023 IL App (4th) 221075, ¶ 25. In Thomas, we did not consider or make any pronouncements about the propriety of plaintiff bringing her claims in her capacity as an elected
¶ 34 In sum, based upon (1) the plain and ordinary meanings of “cause” and “proceeding” as used in
¶ 35 Having determined the scope of the appointment order, we now turn to whether the trial court abused its discretion in granting defendants’ motion for clarification and denying attorney fees tо plaintiff related to counts XII and XIII on the basis her counsel did not have the authority to prosecute those counts. The court‘s conclusions were premised upon its (1) determination plaintiff‘s counsel‘s prosecution of those counts XII and XIII was beyond the scope of the authority granted in the appointment order and (2) desire to “protect[ ] the taxpayer‘s expectation and the taxpayer‘s treatment” because, “in effect, an order appointing a special prosecutor is an order to pay” and “in the end it‘s the taxpayer that foots the bill.”
¶ 36 As to the first ground the trial court relied upon, we have already established counsel‘s prosecution of counts XII аnd XIII was encompassed in the powers granted in the appointment order because Judge Brown broadly granted counsel the ability to prosecute the “cause/proceeding” without qualification, mirroring the language of
¶ 37 Given the foregoing, the sole remaining ground for the trial court‘s grant of the motion for clarification and denial of attornеy fees related to those counts was its desire to lessen the financial burden on Peoria County taxpayers. In making its ruling, the court stated it viewed
¶ 38 We acknowledge courts must interpret orders appointing a special prosecutor strictly and narrowly.
¶ 40 For the reasons stated, we reverse the trial court‘s grant of defendants’ motion for clarification and denial of attorney fees to plaintiff relating to counts XII and XIII and remand with directions that the court enter an appropriate fee award relating to the prosecution of counts XII and XIII. We otherwise affirm the court‘s judgment.
¶ 41 Affirmed in part and reversed in part; cause remanded with directions.
Decision Under Review: Appeal from the Circuit Court of Peoria County, No. 21-MR-992; the Hon. Stewart James Umholtz, Judge, presiding.
Attorneys for Appellant: Justin M. Penn and Katelin N. Scolaro, of Hinshaw & Culbertson LLP, of Chicago, for appellant.
Attorneys for Appellee: Thomas J. Sotos, James Sotos, and Lisa M. Meador, of Sotos Law Firm, P.C., of Chicago, for appellees.