Judge Gordon Graham turned thumbs down on reconsideration of the amount of money he has authorized for payment to Special Prosecutors Henry Tonigan and Thomas McQueen.
The request of Illinois-Appellate Prosecutor Charles Colburn was made on behalf of the McHenry County Board.
He argued that state law had changed since the 1973 court case upon which the Judge was relying. The change was passed in 1988 and, according to Colburn, was intended to rein in fees for Special Prosecutors.
It did so by requiring fees to be tied to the salary of the State’s Attorney in the county, which in McHenry County is $166.508.
The hourly fee under this “apportionment” approach would be $91.50 an hour, based on a State’s Attorney working a seven hour day.
Bills after November, 2010, have not yet been submitted to the McHenry County Board. Click to enlarge.
The latest bill from the Special Prosecutors–$69,910–was for 218 hours for a four-month period. My math tells me that works out to $320 an hour. Because expenses are also included, the hourly rate, would be less. The figure $250 per hour came out, but Tonigan refused to reveal his hourly rate when I asked him the first time I saw him in court
This is re-enforced by McQueen’s having revealed after court today that the Special Prosecutor in Amy Dalby’s case was paid $300 an hour. McQueen noted that nobody objected to that fee.
McQueen pointed out that the $169,000 he and Tonigan had billed was over a 15-month period, which is about what the State’s Attorney makes in a year.
Colburn pointed out that the two were not working full-time on the case and had the opportunity to make additional money, which was prohibited for full-time State’s Attorneys.
McQueen kept coming back to the early 1970′s to justify being paid more than would result under the 1988 law passed to rein in Special Prosecutor’s fees.
Graham pointed out that a motion to reconsider is “generally brought on newly discovered evidence not available at the time.
“What’s different today that was (available when the issue was decided)?”
Graham emphasized that there is “no case law [court decision] to support your position.
“Where do you have standing. You’re putting me in a difficult position.”
Both the Judge and Colburn read from the transcript, which is sealed to outside eyes.
Colbun pointed to pages 7-9 of the March 14th hearing, which “indicated an apportionment should be made.”
“Weren’t you going to provide (me the details)…wIt until after the fact to tell me what you (think the Special Prosecutor should be paid).”
Graham was clearly upset.
“I assumed the Court would be making an apportionment,” Colburn replied.
“I asked you that a month ago,” Graham said. “Want to tell me what you mean by apportionment?”
Again the Judge asked,
“Any case law?”
“No,” was Colburn’s reply.
Colburn then explained two methods that the apportionment method could be determined.
For the latest bill, $69,910, the suggested method would yield
$20-21,000 without expenses.
“I find it amazing that you would stand here and go through this recitation,” Graham replied. “You have shown no change in the law, the Barrett case in 1974.”
After reading the case, Graham made his ruling:
“I deny your motion to reconsider because I don’t think you’re provided anything new.”
Next up were the motions filed by Lou Bianchi Attorney Terry Ekl on behalf of six citizens.
Will the decision be appealed?
“This is under discussion,” County Administrator Peter Austin said.
That story will come later.
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From a personal point of view, I was listening to Judge Graham with a legislative branch hat on.
The Illinois General Assembly, indeed, every legislative body, regularly identifies court decisions that don’t make sense. That is apparently what happened regarding the 1973 o4 1974 (both years were referenced) Barrett decision upon which Judge Graham hangs his decision.
Illinois lawmakers passed a law in 1988 to overturn that decision, as I heard the chronology. That is the law of the land, this non-lawyer thinks.
When Judge Graham saof, “You have shown no change in the law, the Barrett case in 1974,” I’m figuratively slapping myself on the forehead saying, “Whoooa.”
But Judge Graham was obviously looking of his definition of the law and I was looking at it from my legislative branch point of view.
And, he is the udge. I’m just a former State Representative.
It would be interesting to see what an Appellate Court would think of his reasoning.