MATTHEW SHERRY v. THE STATE OF ILLINOIS (2002)

ORDER

This claim against the Kane County Sheriff (styled as against the Kane County Sheriff's Department) and the Kane County State's Attorney are before the court on the respondent's motion to dismiss for lack of jurisdiction and failure to state a claim against the State of Illinois. The claimant has belatedly filed a response, which we allow, instanter.

The motion to dismiss

The respondent notes this court's recent decision in Washington v. State of Illinois, 54 Ill.Ct.Cl. 317 (No.94 CC 0722) (joint opinion with Washlow v. State of Illinois, No. 97 CC 3794) (December 14, 2001) (hereinafter Washington/Washlow), which hold that tort claims against the State's Attorneys and Circuit Court Clerks in Illinois are ordinarily not claims against the State or claims for which the State is liable, and thus claims over which this court has jurisdiction, and that the liability for torts of those officers and their offices lies, as a statutory matter, with the respective counties, and thus should be actionable in the circuit court. Respondent also notes our decision in Alencastro v. Sheahan, 54 Ill.Ct.Cl. 457 (2001), in which we rejected liability of the State, and jurisdiction of this court, over a tort of a county sheriff and his deputies while acting as agents of the State circuit court.

Claimant's arguments

Claimant contends, in effect, that our decisions in Washington, Washlow and Alencastro were erroneous on the basis of the Appellate Court and federal District Court decisions in Biggerstaff v. Moran, 284 Ill.App.3d 196; 671 N.E.2d 781; 219 Ill.Dec. 614 (1st Dist.1996); Sneed v. Howell, 306 Ill.App.3d 1149; 716 N.E.2d 336: 240 Ill.Dec. 203 (5th Dist. 1999); and Stokes v. City of Chicago, 660 F.Supp. 1459, 1463 (N.D. Ill. 1987), which rejected county liability and implied or (in Sneed) said that claims against State's Attorneys should be brought here.

Biggerstaff, supra, and Stokes, supra, held that the county was not vicariously liable for the Sheriff's and the State's Attorney's negligence under respondeat superior (on the basis that he is a State officer rather than a county officer under Ingemunson v. Hedges, 133 Ill. 2d 349, 549 N.E.2d 1266 (1990)). Claimant seems to argue that because the circuit court has rejected county liability and its jurisdiction, this court must do the reverse and take jurisdiction over these claims as claims against the State. Claimant also points out that Sneed, supra, held that a tort claim against a State's Attorney must be brought in this court because of the State's Attorney's constitutional status as a State officer under Ingemunson, supra.

Discussion

Neither Biggerstaff, supra, nor Stokes, supra, undermine this court's reasoning or holding in Washington/Washlow, supra, to which we adhere.

We agree that respondeat superior liability does not apply to torts of the State's Attorneys, as Biggerstaff and Stokes held. The reason, however, is more fundamental than those courts gave. The inapplicability of respondeat superior flows from the status of the State's Attorney as an elected officer who is not subject to being fired -- under Moy v. County of Cook, 159 Ill.2d 519, 640 N.E.2d 926 (1994) -- before one ever reaches the question of which governmental body is the parent onto which vicarious liability would fall if respondeat superior did apply. The Biggerstaff and Stokes courts missed this point, and overlooked Moy, supra, as did the Fifth District in Sneed, supra, which erroneously assumed that the State had respondeat superior liability for the State's Attorney's tort.

The rule that torts of elected officers do not give rise to a respondeat superior liability of their parent governmental taxing bodies applies in this court as to the State just as it applies in the circuit court as to the counties, so long as Moy, supra, is the law of Illinois. Washington/Washlow addressed only claims of respondeat superior State liability for wrongful acts or omissions of State officers (State's Attorney, Circuit Court Clerk); no other theory of State liability was asserted there.

In Washington/Washlow, supra, we held that a State's Attorney is not a State employee but is a nonjudicial of ficer[] of the Judicial Branch of the State government, following our Supreme Court's holding in Ingemunson v. Hedges, 133 Ill. 2d 349, 549 N.E.2d 1266 (1990); see also, Drury v. County of McLean, 89 Ill. 2d 417, 433 N.E.2d 66 (1982)(same; circuit court clerk). As an elected State officer, a State's Attorney does not trigger respondeat superior liability of the State, as a matter of law (following Moy v. County of Cook, 159 Ill.2d 519, 640 N.E.2d 926 (1994)). We further held that under the Illinois statutes governing financial responsibility for paying the expenses of the State's Attorney's office -- deemed to include liabilities arising in the course of the officer's duties -- the liability for paying damages from alleged torts of these offices falls (at least initially, and seemingly completely) on the county government of the State's Attorney (or circuit court Clerk).

Accordingly, Washington/Washlow held that either this court lacks jurisdiction entirely, as the claim does not assert a State liability, or assuming arguendo that the State may have liability on some other theory, that this court must defer the claim (under/25 of the Court of Claims Act (705 ILCS 505/25) and our Rule 60 (74 Ill.Admin.Code 790.60) until the Claimant has exhausted his potential remedy against the county, which has statutory but indirect liability at a minimum (although not on a respondeat superior basis). If a Claimant were to prove the underlying tort liability in another forum, but did not get full payment from the county, he or she could return here and assert a residual liability against the State under some theory other than respondeat superior, which might present an issue of first impression, but which this court would then have to address.

As a matter of practice, because it is extremely unlikely that an Illinois county would fail to pay an adjudicated liability, this court generally dismisses claims like this one against State's Attorneys, without prejudice, rather than merely deferring them on our general continuance docket. We will follow that procedure here.

Amendment and Discovery

Apparently anticipating that this court would adhere to its recent decision in Washington/Washlow (as well as to Alencastro, supra, as to sheriffs acting as agents of the State courts) -- as we do -- this Claimant asks us to grant him discovery and to allow him to file an amended complaint in this court if we reject his initial complaint. We will grant him leave to file an amended complaint, but will not now allow discovery.

It seems clear that this court has no jurisdiction over a county sheriff. And although it is unclear whether this court has jurisdiction over the State's Attorneys as State officers for discovery purposes, in the event that we do (despite our conclusion that that officer's liabilities are not now enforceable here against the State), it still remains unclear just how discovery could be enforced against the State's Attorney other than by an order of the circuit court. We will not reach out to generate that delicate discovery issue.

If Claimant can return with an amended complaint that states a viable claim against the State based on allegedly wrongful acts or omissions of the Kane County Sheriff and/or State's Attorney on a legal theory other than respondeat superior liability, we will entertain his discovery request as well as his claim with open arms and minds. Until then, there is no claim pending here in which to allow discovery against those officials or anyone else.

Conclusion

In the absence of a statutory change in the law, or a decision of the Illinois Supreme Court rejecting our Washington/Washlow decision or its reasoning or modifying or reversing that court's decision in Moy, supra (or finding that this court has misapplied Moy), we find no basis for asserting jurisdiction over these claims against the Kane County State's Attorney and Sheriff and their offices as claims against the State.

Although, as we said in Washington/Washlow, supra, these are difficult and unclear issues of Illinois law, we will not upset the longstanding historical allocation of governmental expenses and liabilities as between the State and its local governments which has been governed by unaltered statutes without a clear basis for doing so. If our determination is in error, or is not the desired policy result, then a higher court or the General Assembly must tell us.

Because we have concluded that the liabilities of these locally-elected State (State's Attorney) and county (Sheriff) officers are county and not State responsibilities, it follows that litigation of these tort claims against these officers (and, possibly, against their funding counties) in the circuit court is not barred by Illinois sovereign immunity (under the State Lawsuit Immunity Act, 745 ILCS 45/1), even though we have seen many circuit judges (like the appellate panel in Sneed, supra) almost reflexively dismiss claims there against State's Attorneys (and Circuit Court Clerks) because they are State officers, on sovereign immunity grounds, without further analysis.

Hopefully, in this or another case, a Claimant will pursue a claim in the constitutional courts against a State's Attorney or Circuit Court Clerk onto appeal so that a definitive decision from our Supreme Court can ultimately resolve these important State/local liability issues. But in this court, this claim as now formulated is over.

Wherefore, it is hereby ORDERED:

1. Claimant is granted leave to file its response to the motion to dismiss instanter;

2. Respondent's motion to dismiss is granted, and this claim is dismissed, without prejudice;

3. Claimant is granted leave to file an amended complaint within 60 days after the date of this order; and may by motion filed before that date seek additional time for cause;

4. Claimant's request for discovery, pending filing of an amended complaint, is denied;

5. If no amended complaint or motion for extension of time is filed within 60 days after the date of this order, this claim shall be closed by the Clerk.

EPSTEIN, J.