People ex rel. Partee v. Murphy

• Decision Date: 24 January 1990
• Docket Number: No. 68846,68846
• Citation: 550 N.E.2d 998,140 Ill.Dec. 873,133 Ill.2d 402
• Parties: , 140 Ill.Dec. 873 The PEOPLE of the State of Illinois ex rel. Cecil A. PARTEE, Petitioner, v. The Honorable Michael J. MURPHY, Respondent.
• Court: Illinois Supreme Court

Page 998

550 N.E.2d 998

133 Ill.2d 402, 140 Ill.Dec. 873

The PEOPLE of the State of Illinois ex rel. Cecil A. PARTEE Petitioner, v. The Honorable Michael J. MURPHY, Respondent.

No. 68846.

Supreme Court of Illinois Jan. 24, 1990.

Cecil A. Partee, State's Atty., Chicago (Joan S. Cherry, Deputy State's Atty., Daniel E. Cannon, Asst. State's Atty., of counsel), for petitioner.

Neil F. Hartigan, Atty. Gen., Springfield (William G. Sullivan, Special Asst. Atty. Gen., Chicago, of counsel), for respondent.

Justice RYAN delivered the opinion of the court:

The State's Attorney seeks a supervisory order against Judge Michael J. Murphy of the circuit court of Cook County, directing him to find that there is no conflict of interest for the State's Attorney to represent the county treasurer and the county clerk in their official capacities in a tax indemnity proceeding. For the reasons stated below, we find that resolution of the issue would constitute an advisory opinion and, therefore, we remand the matter for further proceedings in the circuit court of Cook County.

Section 247a of the Revenue Act of 1939 (Ill.Rev.Stat.1987, ch. 120, par. 728a) creates an indemnity fund. The monies in the fund are derived from a fee imposed on each item purchased at delinquent tax sales. (Ill.Rev.Stat.1987, ch. 120, par. 728a(1).) The owner of real estate which is erroneously sold at a tax sale may petition the circuit court which issued the tax deed, seeking compensation from monies in the indemnity fund. (Ill.Rev.Stat.1987, ch. 120, par. 728a(6).) The property owner must allege that the loss was not the result of his fault or negligence and that he cannot bring an action for the recovery of the real estate. (Ill.Rev.Stat.1987, ch. 120, par. 728a(5).) If the court determines that the owner is equitably entitled to compensation for his loss, it may direct the treasurer to pay the property owner the fair cash value of the real estate as of the date the tax deed was issued, less any mortgages or liens thereon. Ill.Rev.Stat.1987, ch. 120, par. 728a(5).

The issue in this case stems from a petition for indemnity James and Helen McGee filed in the circuit court of Cook County against Edward J. Rosewell, Cook County treasurer, as trustee of the indemnity fund. The petition was filed in accordance with section 247a of the Revenue Act (Ill.Rev.Stat.1987, ch. 120, par. 728a), and sought indemnity for their property loss as a result of a tax deed which was issued after a tax delinquency sale. The State's Attorney, pursuant to his statutory obligation (Ill.Rev.Stat.1987, ch. 14, par. 5(4)), filed an appearance on behalf of the treasurer. After discovery was concluded, the case was set for trial on June 2, 1989, before Judge Michael J. Murphy.

A provision in the indemnity fund statute allows the treasurer to bring a third-party complaint against "a person, other than the tax deed grantee and its successors in title, not a party to the action who is or may be liable to him, as subrogee, for all or part of the [indemnity] petitioner's claim against him." (Ill.Rev.Stat.1987, ch. 120, par. 728a(6).) One of the allegations in the McGees' petition was that their property was sold at the tax sale as a result of a clerk in the office of the county clerk of Cook County erroneously informing them that there were no unpaid taxes on the property. The trial court believed that the allegation in the McGees' complaint may form the basis for a third-party action, pursuant to section 247a(6) (Ill.Rev.Stat.1987, ch. 120, par. 728a(6)), by the treasurer as subrogee against the county clerk.

At the June 2 trial date, the trial judge expressed his concern, and that of the other judges in the division, in presiding over a number of tax indemnity cases in which there is an allegation of errors by employees of the county clerk's office. He believed that the State's Attorney's representation of the treasurer was ethically in conflict with his other statutory obligation as attorney for the county clerk because of the allegation of a clerk's error and the possibility of an action by the treasurer against the clerk. The judge recommended that the State's Attorney not represent the treasurer. This recommendation was based in part on his belief that the indemnity fund was similar to a private fund and thus the greater obligation would be to represent the clerk and to protect the clerk's public funds. Though he emphasized that he did not believe that any particular assistant State's Attorney or even the State's Attorney himself had acted unethically, he believed that there was an appearance of impropriety under Canon 9 of the Code of Professional Responsibility and that the State's Attorney should have declined, under Rule 5-105 (107 Ill.2d R. 5-105), to represent the treasurer. He stated that if the State's Attorney requested, the judge would appoint a special assistant State's Attorney to investigate the viability of a third-party action. The special assistant would then be paid out of the indemnity fund.

The assistant State's Attorney informed the judge that he had investigated the allegations against the clerk's employee and the employee's testimony would contradict the accusations in the petition. He argued that under such circumstances the treasurer could not bring a third-party action against the clerk and no conflict thus occurred. Also, a representative of the treasurer informed the judge that the treasurer did not perceive a conflict and would allow the State's Attorney to represent him.

The judge stated that he felt obliged to do something in these cases because of the perceived conflict and because of his concern over the errors being made in the clerk's office. He agreed to let the trial proceed with the State's Attorney representing the treasurer but said that after its completion he would forward the transcripts of the proceedings regarding the conflict to the Attorney Registration and Disciplinary Commission (ARDC) for it to determine whether the State's Attorney was acting improperly.

After hearing the State's Attorney's arguments, the judge denied a request to stay the proceedings until a motion for a supervisory order could be filed, and he set the matter for trial on July 10, 1989. On June 23, 1989, the State's Attorney filed in this court a motion for a supervisory order and a motion to stay the trial court proceedings. We granted the motion to stay the underlying proceedings pending disposition of the State's motion for a supervisory order.

The State's Attorney asks us to hold that the trial court's interpretation of the indemnity fund as "private" was improper. He then claims that we should "vacate" the trial court's decision to refer him to the ARDC because even if there is a conflict, according to this court's precedent, dual representation is allowed, and in support of this proposition he cites, inter alia, Environmental Protection Agency v. Pollution Control Board (1977), 69 Ill.2d 394, 14 Ill.Dec. 245, 372 N.E.2d 50. In the alternative, he contends that no conflict is possible because the Revenue Act does not contemplate a third-party action by the treasurer against the county clerk. The Attorney General of Illinois represents respondent, Judge Michael J. Murphy, and in his brief argues that a third-party action is contemplated and that a conflict arises when a single assistant State's Attorney represents two statutory clients with conflicting interests.

First, we note that the trial court's perception of a conflict and subsequent recommendation did not turn on whether the fund was private or public. During argument before Judge Murphy on his interpretation of the indemnity fund, the judge declared that "[a]ssuming that [it is public], how do you answer to the appearance of impropriety?" And, later in the proceeding, he stated that the State's Attorney could choose to represent either the clerk or the treasurer, but he should not represent both when there is an allegation of clerk error, at least not until after a special assistant State's Attorney investigates the viability of a third-party complaint. Thus, he did not insist that the State's Attorney represent the clerk because the treasurer's indemnity fund was similar to private monies.

Next, on the issue of whether dual representation is allowed in a tax indemnity proceeding, we believe that in resolving that question we would be rendering an advisory opinion. Our jurisdiction is restricted to cases which present an actual controversy, and we decline to issue advisory opinions on moot or abstract questions of law. (People ex rel. Black v. Dukes (1983), 96 Ill.2d 273, 276, 70 Ill.Dec. 509, 449 N.E.2d 856; In re Marriage of Wright (1982), 89 Ill.2d 498, 500, 61 Ill.Dec. 140, 434 N.E.2d 293; Underground Contractors Association v. City of Chicago (1977), 66 Ill.2d 371, 375, 5 Ill.Dec. 827, 362 N.E.2d 298.) An advisory opinion results if the court resolves a question of law which is not presented by the facts of the case. (See Slack v. City of Salem (1964), 31 Ill.2d 174, 178, 201 N.E.2d 119 (court vacated trial court's resolution of a "hypothetical" constitutional issue).) If it is apparent that an opinion cannot affect the result as to the parties or controversy before it, the court should not resolve the question merely for the sake of setting a precedent to govern potential future cases. Bluthardt v. Breslin (1979), 74 Ill.2d 246, 251, 24 Ill.Dec. 151, 384 N.E.2d 1309; 28 East Jackson Enterprises, Inc. v. Rosewell (1976), 65 Ill.2d 420, 426, 3 Ill.Dec. 454, 358 N.E.2d 1139.

The trial judge has taken no action with regard to the State's Attorney's participation in the tax indemnity proceeding. He has indicated his belief that something is wrong with the representation in cases where there is an allegation of error by the clerk. The judge felt that in order to resolve his discomfort, and perhaps to more fully understand why these errors are being made, after trial on...