Addressing requests for fees submitted by Justin Penn — representing former County Auditor Jessica Thomas — Judge Stewart Umholtz on Jan. 29 decided Penn’s rate was “reasonable,” but the judge disallowed all fees and costs related to two complaints added later.
“They’re denied,” Umholtz said.
JUSTIN PENN
Peoria County’s Auditor office was changed by the County Board in a 16-2 budget vote in 2021, after which Thomas sued to restore the office and its funding. In November 2022, 70% of voters casting ballots abolished the office.
Penn had been appointed in 2022 due to a conflict of interest with the Peoria State’s Attorney’s Office. Thomas’ first attorney left the case and two State’s Attorney lawyers recruited for the role from Marshall and Stark Counties also had conflicts.
JESSICA THOMAS
A separate action was brought in September 2022 by Thomas and community advocate Karrie Alms, objecting to the referendum asking voters whether to eliminate the Auditor office. That was dismissed in May 2023 by the Appeals Court, which ruled that Thomas no longer had standing since voters abolished the office.
The original lawsuit and appointment of a special prosecutor didn’t include issues about the referendum. Before being reassigned to Marshall, Putnam and Stark Counties, Judge James Mack in November of 2022 issued a preliminary injunction maintaining Thomas’ status quo and granted Penn’s request to add Counts 12 and 13, pertaining to the referendum.
Representing Peoria County, attorney Lisa Meador had objected to the extra complaints, saying that Thomas and her lawyers “have known for months that that office could be eliminated” and were seeking to add a different issue to the lawsuit that was about restoring the Auditor’s budget and duties.
“Now they’re challenging the language and effective date and the constitutionality of the referendum,” Meador said. “Plaintiff fully recognized that she could not seek appointment of a special prosecutor to prosecute her personal claims.”
Perhaps anticipating an unfavorable ruling by Umholtz, Penn said not granting his fees and costs for Counts 12 and 13 “would put the plaintiff on the hook for private attorney fees.”
Nevertheless, Umholtz said, he had an “obligation to strictly and narrowly construe [the law].
“There is a method to expand the special prosecutor authority, but not by a court’s determining an amended complaint can be filed,” he said. “The law requires me to interpret the [special prosecutor] order carefully. There has to be certainty, based on specific facts.”
Umholtz’ order, filed Feb. 2, said, “The parties are directed to submit a final order with the amount of attorney fees to be paid consistent with this order within 21 days, at which point the Court will also dismiss the case with prejudice and terminate the matter.”
Penn’s December 2022 petition in fees and costs was $42,087.50; in January he requested an additional $83,452.50, for a total of $125,540.
On Feb. 12, Peoria’s Acting County Administrator Shauna Musselman told The Community Word the difference between what Penn sought and what the judge approved is about $40,000.
“Given that Plaintiff’s counsel is out of town for the next few weeks this is only an estimate,” she said. “We will work with Mr. Penn when he returns to finalize the amount.”
In other business Jan. 29, Umholtz officially dissolved the preliminary injunction issued by Judge Mack.