The battle over legal fees in the prosecution of McHenry County State's Attorney Louis Bianchi will now be fought in an appellate court.
McHenry County Judge Gordon Graham Thursday moved the case to an appellate panel after the McHenry County Board appealed his April 14 decision not to adjust downward some $312,000 billed by Special Prosecutors Henry Tonigan and Thomas McQueen.
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The pair have billed the county $250 an hour in the misconduct and conspiracy case that alleged Bianchi and his personal secretary, Joyce Synek, used county resources and personnel to further his re-election campaign.
A judge cleared both of 26 combined felony counts midway through a trial last month.
Some county board members have questioned the legal fees, which only run through November 2010, and say Tonigan and McQueen should be paid about $90 an hour, which is a prorated amount of the state's attorney's annual salary of $166,000.
The fact that Bianchi faces more misconduct charges that he lessened penalties or dropped charges for distant relatives and political donors has some officials worried the bill will rise and that the prosecution has gone too far.
"I am very pleased to see that we're going to be able to take it to the appellate court because I see us prevailing," McHenry County Board Chairman Ken Koehler said. "We're going after everything. You can't just bill whatever you want to bill."
Bianchi and two of his investigators, who also face misconduct charges, are due in court Friday and a trial has tentatively been set for late June.
No date has been set for the three-person appellate panel to hear oral arguments.
Because the case is awaiting appellate review, two other motions in the case must wait. They include:
• A motion by Tonigan to be removed from the case to care for his ailing father.
• A motion by six McHenry County residents to unseal a secret file that led to the failed charges against Bianchi and Synek, along with a push to have Tonigan and McQueen removed from the case because of incompetence and overbilling.
McQueen also has petitioned to have Winnebago County Judge Joseph McGraw, who exonerated Bianchi in the first trial, removed from Bianchi's second trial. McQueen's motion contends McGraw has a conflict because he was paid more than $6,000 by the Illinois Office of the State's Appellate Prosecutor to teach or serve as a panelist for program.
The office has appointed an attorney to work for the McHenry County Board in the fight over the legal fees.
Terry Ekl, Bianchi's defense attorney, said McQueen's motion is without merit.
"In lawyer language, we call this judge shopping. It's frowned upon by everybody," Ekl said. "The only difference is it's done by defendants, not prosecutors."
The motion will be presented to McGraw on Friday when Bianchi and investigators Ron Salgado and Michael McCreary are due in court.