MARIA ALENCASTRO v. THE STATE OF ILLINOIS (2001)

ORDER

These claims against the Sheriff of Cook County and the State of Illinois arise out of the allegedly illegal eviction of the Claimant from her Chicago residence by Deputy Cook County Sheriffs acting under the apparent authority of a circuit court eviction order.

Now before us on the Respondent's motion to dismiss, this case presents the novel question of whether the State is liable for the negligence of a county sheriff or his deputies when performing a non-discretionary duty mandated by State law or when enforcing a circuit court order, i.e., whether these claims state causes of action against the State. This is a jurisdictional question, as it determines whether these are claim[s] against the State under /8 of the Court of Claims Act (705 ILCS 505/8) and therefore cognizable in this court.

Alencastro I

This claim came here at the suggestion of the First District Appellate Court. That court affirmed the circuit court's dismissal of claimant's state negligent eviction action against the sheriff and his deputies on Illinois sovereign immunity grounds, as well as her federal civil rights claims against them on Eleventh Amendment state sovereign immunity grounds. Alencastro v. Sheahan, 297 Ill.App.3d 478, 706 N.E.2d 495, 232 Ill.Dec. 665 (1st Dist. 1998), leave to appeal denied, 18 Ill.2d 567 (1998) (Alencastro I).

The Alencastro I court found that the sheriff and his deputies were State actors and performed a non-discretionary State function mandated by State law as agents of the circuit court, which distinguished the defendant's status as a county agent, as opposed to [his status as] a state agent, and concluded that the tort claim against them was a claim against the State that is barred (in the circuit court) by the State's sovereign immunity. (Alencastro I, 297 Ill.App.3d at 481, 481-483, 698 N.E.2d at 1097, 1097-1099.) The appellate court thus held that the claim against the Cook County Sheriff was effectively a claim against the State that must be brought in this court.

The Wrongful Eviction Claims in this Court

In this court, Ms. Alencastro named the State as well as the sheriff as Respondents. She adopted the Alencastro I court's reasoning that the sheriff's deputies acted as agents of the judicial branch of Illinois in wrongfully evicting her.¹ She alleges that the sheriff acts as an agent of the State in executing a state court order in a state court proceeding (Compl., f22), and thereby generates a claim against the State cognizable in this court.

Claimant's $7,500 damages aciton is based on an alleged violation of the sheriff's duty not to evict anyone other than the persons named in the court order (which did not include Ms. Alencastro) and the deputies alleged negligence in mis-executing the order (Compl., f15).

The Motion to Dismiss

The State's motion contends that this court lacks jurisdiction over the sheriff and his deputies under the Court of Claims Act because Illinois sheriffs are county officers and not state officers and are not funded by the legislature (which effectively argues for continued county liability, rather than State liability, for these government officers). The State takes this position despite the Alencastro I decision, which it attacks. (Motion to Dismiss, at 2). The Attorney General observes that if each time the Sheriff undertakes these duties he places potential liability on the State, the Court of Claims could become deluged with claims against the sheriffs of each county in Illinois with no control by the State as to how each deputy performs his or her task. (Ibid.)

The State's motion also contends that this claim is barred by the general 2-year limitation of/22(g) of the Court of Claims Act (705 ILCS 505/22(g)), and that this claim has been satisfied by the claimant's $9,500 settlement with Citibank F.S.B., the plaintiff in the disputed 1994 eviction.

Jurisdiction

Completing its unsuccessful meandering past every Illinois court, Ms. Alencastro's negligence claim against the Cook County Sheriff also fails at the door to this court, which lacks subject matter jurisdiction to decide claims against county sheriffs, and is not empowered to grant relief (and certainly not a judgment as sought here) against sheriffs.

The Court of Claims Act, which establishes our core jurisdiction grants this court jurisdiction to hear and determine only certain claims against the State (705 ILCS 505/8) and grants no authority over claims against counties, county officials or county employees. We are unaware of any other statute that grants this court jurisdiction over sheriffs; none has been cited to us.

Insofar as Alencastro I, supra, suggests that this court can adjudicate a claim against a sheriff, we respectfully but firmly disagree. This statutory court recognizes its statutory limitations.

On the other hand, this court clearly has jurisdiction to entertain the wrongful eviction claim asserted here against the State. The complaint before us names the State as a Respondent and seeks State funds (Compl., at 1; prayer for relief, at 8), and thus asserts a claim against the State that is cognizable under our jurisdiction whether the claim is characterized as a common law tort (negligence) (under 705 ILCS 505/8(d)) or as a violation of statutory duty (under 705 ILCS 505/8(a)). We thus entertain the claim against the State as pleaded.²

Liability of the State for Wrongful Acts and Omissions of Sheriffs

The threshold issue raised by the motion to dismiss is whether, as a matter of law, the State is liable for the damages caused by the sheriff's allegedly wrongful eviction of the Claimant, i.e. whether this complaint states a cause of action against the State for a negligent eviction by a county sheriff and his deputies.³ Because the predicate of the claimed liability is the negligence of the sheriff, any State liablity is necessarily vicarious; thus in the absence of any governing statute, the liability issue is controlled by the common law doctrine of respondeat superior. The first question, however, is whether the State's vicarious liability is governed by statute.

/8(d) of The Court of Claims Act

Although the parties do not address it, one provision of the Court of Claims Act appears to bear on the application of respondeat superior liability to the State. Contained in /8(d) (705 ILCS 505/8(d)) -- the paragraph establishing this court's tort jurisdiction (over all claims against the State for damages in cases sounding in tort) -- is the following provision:

The defense that the State [or the various other State entities and Universities named in the Act] is not liable for the negligence of its officers, agents, and employees in the course of their employment is not applicable to the hearing and determination of such claims.

This language can be read to establish a statutory per se rule of respondeat superior liability on the for the negligence of its officers, agents, and employees (emph. added), and thus seems directly pertinent to this claim for negligent eviction by State agents.

The meaning and legislative purpose of this provision, however, is not clear on its face. This is due primarily to its expressed subject: the defense of non-liability under respondeat superior. This curious legislative phraseology was presumably intentional. Even more curiously, this statutory defense waiver has not been the subject of any discovered judicial construction. However, this odd language is explained by history and the antecedent common law at which it was directed.

This provision originated in the initial 1945 enactment of the current Court of Claims Act (Laws of Illinois, 1945, at 660,/8(d)), which replaced the Act of 1913, which had contained no similar clause. The jurisdictional language of the 1913 status (/6, f4) had been held to be exclusively jurisdictional and not to create new liabilities against the State, Crabtree v. State of Illinois, 7 Ill.Ct.Cl. 207 (1933) (Hollerich, C.J.). Thus the inclusion of this substantive language into the tort jurisdiction clause of the 1945 Act was a departure from prior legislative draftsmanship as well as from prior law, which suggests an extraordinarily strong legislative intent.

And indeed, this addition to the 1945 Act effected a major change in the scope of State liability, although that may not be so obvious now. We must look back more than a half century at the 19th and early 20th Centuries common law of governmental tort liability to find the significance of this legislation.

It was then the law that when the State acts in its sovereign capacity it is not liable for the torts or negligence of its agents, Hallisey v. State of Illinois, 14 Ill.Ct.Cl. 156, 158 (1945) (Fisher, J.), citing, inter alia, Kinnare v. City of Chicago, 171 Ill. 332 (1898); Peterson v. State of Illinois, 6 Ill.Ct.Cl. 77 (1928); Perry v. State of Illinois, 6 Ill.Ct.Cl. 81 (1928). The 1945 Act eliminated the State's immunity from respondeat superior liability for sovereign (as distinguished from proprietary) functions, at least for negligence. Prior to the 1945 Act, there essentially was no State respondeat superior liability; see, e.g., Turner v. State of Illinois, 12 Ill.Ct.Cl. 265 (1934); whereas claims arising after July 1, 1945 (i.e., under the 1945 Act) based on negligence of State employees have been recognized in the Court of Claims, Newman v. State of Illinois, 17 Ill.Ct.Cl. 187 (1948).

The 1945 expansion of State liability essentially eliminated a common law governmental immunity hence the logic of its draftsmanship as a waiver of a defense -- and thereby imposed financial liability on the State for the negligence of its officers, agents and employees under the common law doctrine of respondeat superior as that doctrine applied to nongovernmental parties. That statutory adoption of respondeat superior State liability culminated a legislative battle that had continued through at least three legislative sessions (i.e., over a 6-year period in the 58th, 59th and 60th General Assemblies) and that had resulted in three vetoes of State liability-expanding bills by Governor Henry Horner, before the ultimate change -- the /4(d) language that remains today -- was enacted in the comprehensive revision that became the 1945 Act. (This legislative history is instructively traced in some detail by Judge Fisher in Hallisey, supra, 14 Ill.Ct.Cl. at 161-162.).

From our review of the legislative history of the vicarious liability clause of/4(d) of the 1945 Court of Claims Act (705 ILCS 505/4(d)), we conclude that the legislative intent was to subject the State to the common law of respondeat superior, at least for negligence claims, rather than to impose a per se vicarious liability on the State. This straightforward reading is also consistent with the ensuing decisions of this court, as well as the sovereign immunity decisions of the Illinois Supreme Court, which have never imposed or reflected a per se State respondeat superior liability.

The Parties Arguments

The parties argue this case as an application of respondeat superior. For its part, the Alencastro I court appears to have assumed a respondeat superior analysis, and found such liability on the State on the basis of the deputy sheriffs role as agents of the State.

The claimant, following Alencastro I, supra, asserts State liability on the basis of the agency relationship of the county sheriff to the State. That agency is ultimately based on two underlying theories: (1) the sheriff was exercising non-discretionary State powers granted by State statute in evicting the claimant; and (2) the sheriff was executing a State court order as an agent of the circuit court and hence of the Judicial Branch of the State government. Claimant contends that that agency gives rise to respondeat superior liability on the State as the Sheriff's principal.

The respondent argues that traditional respondeat superior liability is not triggered by the relationship between the Sheriff and the State, i.e., that the State is not vicariously liable for the torts of county Sheriffs, whether or not they are agents of the State as urged by the claimant. The State contends [paraphrasing] that it is not vicariouly liable for acts and omissions of a county sheriff, who is a county officer and not a State officer, or for acts and omissions of his deputies, who are county employees and not State employees, because the State does not control their day-to-day performance and because the State does not fund their offices. The State argues this as a jurisdictional point, although it is more precisely a liability point with jurisdictional consequences.⁴

Decision

The respondent's argument is incomplete and the funding point is legally marginal albeit accurate, but this court essentially agrees. We hold that the State is not liable under respondeat superior for the alleged negligent eviction by the sheriff -- whether or not he may be considered a State agent -- as a general matter of law, and hence these claims fail to state a cause of action against the State of Illinois. Having found jurisdiction to hear and determine this negligence claim against the State, we conclude that there is no claim against the State to be heard on the merits.

We disagree with the state law analysis of the Alencastro I opinion, and decline to follow Alencastro I as to (I) the State's liability for the negligence of a county sheriff in effecting an eviction as a State agent, which that court assumed but did not analyze; (ii) the applicability of sovereign immunity to this negligent eviction claim, which we believe belongs in the circuit court as a county liability; and (iii) that court's suggestion that this claim against a county sheriff and his deputies belongs in this court as a claim against the State. (This court does not address or disagree with the federal Eleventh Amendment sovereign immunity analysis of the Alencastro I opinion.)

Analysis

We have concluded that the State does not have respondeat superior liability for Illinois sheriffs and deputy sheriffs acts and omissions, even when non-discretionarily carrying out orders of the State courts, for the following reasons:

First, the doctrine of respondeat superior liability is premised on the actual or presumed control of the master over the conduct of his or her servant, which is utterly lacking here. In the absence of control by the alleged master there can be no vicarious liability in Illinois. Moy v. County of Cook, 159 Ill.2d 519, 640 N.E.2d 926 (1994) (county not liable under respondeat superior for tort of elected county sheriff, due to lack of control over conduct and tenure of elected official by county). See, also, Prosser, The Law of Torts.

In Moy, our Supreme Court reasoned that government officers who are not removable by their parent governmental bodies are not employees whose conduct is subject to the control of their governmental employer and therefore the parent body may not be held derivatively responsible for their wrongdoing. Under Moy and under its traditional common law reasoning, it matters not whether the sheriff and his deputies are considered to be servants or agents or any other subordinate relationship to the State. There can be no respondeat superior liability on the State, because under Illinois law the State does not supervise or control the conduct or performance of county sheriffs or their deputies, nor does the State have any hiring, firing or disciplinary powers over those officers (other than, of course, the generally applicable criminal laws). The underlying premise of vicarious liability is simply not applicable to the State-sheriff relationship.

Second, the agency theory of respondeat superior liability advanced here by the Claimant and seemingly adopted without analysis or citation of authority by the Alencastro I court, assumes a per se vicarious liability of principals for the torts of their agents, which is not the law in Illinois and may not be the law in any American jurisdiction.

Although a principal may sometimes be liable for the torts of an agent committed within the scope of the agency (or while the agent was pursuing the principal's business), such liability arises not per se from the agency relationship as a matter of law, but instead arises from the particular circumstances of the parties actual relationship (which makes the relationship sufficiently master-servant to trigger vicarious liability) or from the peculiar empowerment or instigation of the agent's conduct by the principal that carries obvious or inherent danger to others (such that vicarious liability arises as a matter of public policy). See, e.g., Restatement 2d of Agency, //215-217, 250-255; see, also, Prosser, The Law of Torts, (describing the general rule of non-liability of principals for their agents torts, with several recognized exceptions); Cooley on Torts, (general rule of non-liability with exceptions). Thus merely characterizing the sheriff as an agent of the State or of the State judiciary by itself does not yield vicarious liability on the State.

Third, as applied to governmental bodies and their employees and agents in Illinois, respondeat superior has always imposed vicarious liability on the immediate employing (and supervising) body and not on the State as the ultimate source of the enabling legal powers or duties involved in the employee's or agent's tortious conduct. This allocation of respondeat superior liability among governmental units is not lightly to be altered. This is a fundamental point.

The requirement of a direct employment or control nexus between governmental employers and the employees/agents for whom they are financially liable has operated to allocate governmental liability among the various levels and units of government in Illinois -- which has budgetary, taxation and accountability consequences. Each governmental taxing body has heretofore been liable for the (actionable) wrongful acts of its own personnel, and only its own personnel (absent unusual circumstances such as intergovernmental sharing or exchange of personnel that involves shifting of control or supervisory responsibility).

We reject the unprecedented and unmandated adoption of a source of legal authority rule for the allocation of respondeat superior liability onto the State, as was the apparent result if perhaps not the considered intent of the Alencastro I decision, supra. Imposing respondeat superior liability on the State for the torts of county and local governmental officers, employees and agents whose ministerial or non-discretionary powers or duties derive from State law -- as Alencastro I seemingly requires -- would shift liability from those local taxing bodies onto the State for damages caused by most, if not all, local government personnel in Illinois (other than, perhaps, those exercising local home rule powers). This follows because other than municipal and county home rule powers -- which also derive ultimately from the State via Article 6 of the 1970 Illinois Constitution -- virtually all local governmental powers and duties in Illinois are established by State statute.⁵

Thus the source of duty rule as it was apparently applied (erroneously) in Alencastro I would cause a major shift of financial responsibility for local government torts onto the State -- from local to State taxpayers and from local elected officials to the legislature in Springfield. That would significantly reduce local accountability of local governments, as the responsibility for paying for local misconduct and negligence -- and for raising the tax revenues to do so -- would be lifted from local governments and imposed on the State government. (Of course, if the Alencastro I decision is limited to sheriffs acts and omissions when executing a State court (or State agency) order as its agent, its precedential impact might be less than its source of duty analysis would suggest.)

Such a shift in governmental liability, whatever its merits or demerits and whatever its ultimate scope, would be a sea change in the law of governmental liability in Illinois, and should therefore be a matter of legislative determination rather than novel judicial interpretation of ancient statutes. Absent a constitutional or statutory change in the law, or a clear directive in a decision of our Supreme Court, none of which is now presented to us, this court will not adopt nor recognize such a fundamental change in the law of governmental liability.

Fourth, as a matter of legislative intent, it is clear that the General Assembly has not intended the State to be financially liable for county (or other local governments) officers and employees and agents torts. The legislature has treated those local government tort liabilities as separate and distinct from those of the State. That is most clearly established by the Local Government and Local Government Tort Immunity Act, 745 ILCS 10, which to this day defines local entity and employee to include the 102 counties and their officers and employees (745 ILCS 10/1-202). That Act very clearly governs the scope of local government tort liabilities separately from those of the State, which are statutorily governed by the State Lawsuit Immunity Act (745 ILCS 5/1) and the Court of Claims Act (705 ILCS 505). Alencastro I flies in the face of this continuing separate legislative treatment of local and State tort liability.

In the final analysis, because the State's sovereign immunity -- and thus the scope of the State's non-immune liability -- is a matter reserved to the discretion of the General Assembly (1970 Illinois Constitution, Art. XIII,/ 4), the entire issue of whether the State is liable for torts committed by local government personnel is ultimately controlled by statute. We have no hesitancy in finding that the General Assembly in both its statutory treatment of the local governmental tort immunities and in its statutory treatment of State respondeat superior liability in/4(d) of the Court of Claims Act has demonstrated a clear intent to maintain the traditional Illinois allocation of tort liability to the governing (and taxing) bodies of the employing -- and controlling -- governmental units.

The Error in the Alencastro I Decision

It remains only to point out what we believe to be the analytical errors in the Alencastro I decision. We are constrained to do so for the sake of accountability. Especially in this case, where the potentially far reaching impact of the appellate court's decision and our fundamental divergence from its reasoning will hopefully prompt the General Assembly or the Supreme Court to resolve the conflict between Alencastro I, supra, and this Alencastro II, future litigants and elected policymakers deserve a memorialization of the reasons that prompted such a contrary view of the law.

The appellate court in Alencastro I found State respondeat superior liability on the basis of:

[1] the state actor and state agent findings as to the county sheriff when executing a State court eviction order (which the Alencastro I panel first made as part of its federal Eleventh Amendment analysis); those findings then provided an agency lynchpin for that court's application of respondeat superior liability onto the State;

[2] the source of legal duty test for ascertaining State sovereign immunity (applying Currie v. Lao, 148 Ill.2d 151, 592 N.E.2d 977 (1992) and Healy v. Vaupel, 133 Ill. 2d 295, 549 N.E.2d 1240 (1990)); and

[3] the real party in interest test (where a judgment for the-plaintiff [against a State employee in his individual capacity] could operate to control the actions of the State or subject it to liability, deriving from Robb v. Sutton, 147 Ill.App. 3d 710, 498 N.E.2d 267 (1986), as restated in Currie v. Lao, supra), which is also a judicial standard for ascertaining whether State sovereign immunity applies.

We believe the Alencastro I panel erroneously carried over the federal law (Eleventh Amendment) analysis into the Illinois sovereign immunity analysis, and then misapplied the two Illinois legal tests of sovereign immunity: the current source of duty standard announced in Currie v. Lao, 148 Ill. 2d 151, 592 N.E.2d 977 (1992), for determining whether a state employee's tortious conduct is, or is not, clothed with the State's statutory sovereign immunity, and the real party in interest test of Sass v. Kramer and Robb v. Sutton (which may or may not have independent vitality after Currie v. Lao, supra, which we need not here examine):

The relevant approach regarding a claim of negligence against a state agent is to examine the source of the duty the agent is alleged to have breached. Currie v. Lao, 148, Ill. 2d 151, 159 (1992). When negligence stems from the state actor's breach of a duty imposed solely by his directives from the State, immunity applies and bars the action in trial court. Swanigan v. Smith, 294 Ill.App. 3d 263, 29, 689 N.E.2d 637, 641 (1998). This basis for this rule lies in the statute declaring that the State may not be made a defendant or a party in any court except as set forth in the Court of Claims Act. 745 ILCS 5/1 (West 1992).***

Furthermore, this court stated in Swanigan, 294 Ill.App. 3d at 269, 689 N.E.2d at 641, and Boards of Education v. Cronin, 54 Ill.App. 3d 584, 586, 370 N.E.2d 19, 21 (1977), that when judgment for a plaintiff may operate to control the State's actions or subject the State to liability, an action brought against a state agent in his or her individual capacity will be deemed to be a claim against the State, and thus must be brought in the Court of Claims. See also, Healy v. Vaupel, 133 Ill. 2d 295, 308 (1990); [Senn Park Nursing Center v.] Miller, 104 Ill. 2d at 187, quoting Sass v. Kramer, 72 Ill. 2d 485, 491-92 (1978) (rule against making state a party to suit cannot be evaded by making action nominally one against agents of state when the true claim lies against state itself and when the state is the party vitally interested). Thus such claims against the State brought in the circuit court are barred

Alencastro I, 297 Ill.App.3d 478, at 478..., 480 706 N.E.2d at 496 (st1 Dist. 1998).

These tests apply to determine when the acts or omissions of State employees or officials are actionable against the employee as well as against the State (as in Currie v. Lao, supra) or are only actionable against the State (as in Sass v. Kramer and Kilcoyne v. Paelmo, supra). Both of these sovereign immunity tests presume or explicitly require that the State be at least colorably subject to liability on the basis of the employee's or agent's conduct (usually but not necessarily via respondeat superior). These sovereign immunity tests apply only when there is a nexus supporting State liability -- the possibility of which invokes the State's sovereign immunity. The fundmental error of the Alencastro I decision was to apply the source of duty and real party in interest tests in the absence of any nexus generating or threatening State liability. Indeed, the appellate court compounded the error by utilizing these tests to find State liability, which is exactly the opposite of their purpose, which is to immunize the State (at least in courts other than the court of claims).

Indeed, every one of the cases cited in the appellate court's Alencastro v. Sheahan opinion, supra, involved a threatened or asserted liability against the State based on an act or omission of a State employee. There is neither logic nor precedent for invoking these sovereign immunity tests when the alleged tortfeasor is not a State employee for whom the State might be vicariously liable.

We do not take issue with the Alencastro I court's characterization of the sheriff's role in the disputed evictions as being an agent of the circuit court, at least in the sense that the sheriff is exercising or carrying out the court's power (although plainly the sheriff cannot bind the court contractually or in any other sense). That characterization, however accurate or significant it may be for federal law purposes, does not trigger either respondeat superior liability under Illinois law nor sovereign immunity under Illinois law.

The two bodies of sovereign immunity law are not the same. The federal law of State sovereign immunity serves constitutional purposes of federalism -- the allocation of authority between the States and the Federal government. The Illinois law of sovereign immunity serves the purpose of substantively limiting the State's (or its local governments) liability to the degree that the State itself determines. It is hardly surprising then that the two doctrines are not identical in application. The state agent or agent of the state court label, even assuming its correctness, does not carry the consequences under Illinois law that the Alencastro I panel assumed.⁶

Finally, we much observe that the appellate court's purported application of the Currie v. Lao source of duty test was erroneous for yet another reason: Even if that test were properly invoked in the absence of a respondeat superior underpinning for State liability for the sheriff's actions, the Alencastro I court did not fully apply that test. It is clear -- as the appellate court itself found -- that this eviction case does not satisfy the ultra vires prong of the Currie v. Lao test. Although the claimant alleged in this case that the sheriff's deputies acted beyond the authority of the circuit court order for possession, in fact the order on its fact clearly authorized the eviction of the claimant or anyone occupying the disputed premises, as the appellate court found:

Considering that the language of the instant court order for possession directed defendant [the sheriff] to place Citibank***in possession of said real estate and premises*** without notice to any party, further order of the Court or resort to proceedings under any statute, and that the validity of that order is uncontested, we are not persuaded that defendant acted beyond the scope of his authority.

(Alencastro I, 706 N.E.2d at 1100.) Thus the source of the alleged wrong in this case was the circuit court order, which is not the claimed basis of State liability nor could it be.

Conclusion

Because we have found that this claim, asserting State liability for the allegedly negligent eviction of the Claimant by the Cook county sheriff, does not state a cause of action against the State, we need not take up the alternative grounds advanced in the motion to dismiss.

Wherefore, it is hereby ORDERED: This claim is dismissed and forever barred.

FOOTNOTES

1.  In a flagrantly erroneous characterization of the status of Alencastro I, the claimant tells us that the Illinois Supreme Court upheld Alencastro v. Sheahan (Compl.,/21). However, the Supreme Court only denied leave to appeal Alencastro I to that court. That denial was a discretionary refusal to review the case, which upholds nothing and has no precedential effect. People v. Vance, 76 Ill. 2d 171, 183, 390 N.E.2d 867 (1979).

2.  The complaint also names the sheriff as a Respondent in his official capacity. We allow the caption to stand, and treat the naming of the Sheriff in the same manner as is our practice for State agencies and officers, who may be named in this court (in addition to or in lieu of naming the State) as an informational matter (see Rule 40(c), 74 Ill. Admin. Code/790.40(c). In this court, the State is always the ultimate and sole respondent.

3.  The Claimant correctly observes (Compl., par. 18) that/3-6016 of the Counties Code (55 ILCS 5/3-6016) imposes liability on the sheriff for the negligence of his deputies. Because of this respondeat superior statute, our occasional references to the sheriff alone necessarily include his deputies and their acts and omissions.

4.  This distinction may not always be so obvious. Whether a claim is valid or not, if it is asserted against the State, it must be brought here, as this court has exclusive jurisdiction over claims against the State (705 ILCS 505/8). A purported claim can be brought here, i.e., this court has jurisdiction to entertain it, if it asserts State liability on one of the grounds enumerated in our primary jurisdictional statute (i.e., subsections 8(a) -- 8(g) of the Court of Claims Act, 705 ILCS 505/8 (a) -- 8(g)) or, theoretically, under another statute that confers jurisdiction on this court. Then it is for this court to decide if the purported claim actually states a claim of State liability. If it does not, then our jurisdiction ends with the determination that it does not. But it does not defeat our jurisdiction to contend (even accurately) that the State is not liable as a matter of law on a particular claim.

5.  This claim arises out of Cook County, the only home rule county of the 102 Illinois counties. This serves to demonstrate how pervasive the liability shift engendered by the Alencastro I decision might be. Under the appellate court's non-discretionary duty under State statute test, if that were to govern, liabilities arising from the 102 sheriff's performance of law enforcement duties as well as their operation of the jail system, as well as other county personnel's administration of the property tax system -- all of which are duties and functions mandated by state statute in Illinois would suddenly become State liabilities.

6.  An interesting issue that would seemingly arise on the Alencastro I court's agent of the court theory of State liability is whether the deputy sheriffs, when executing a court order are clothed with judicial immunity as an arm of the court. That issue was not addressed in Alencastro I, supra, and may not have been raised.

EPSTEIN, J.