SHIRA WASHINGTON NICHOLAS BATES v. THE STATE OF ILLINOIS (2001)

JOINT OPINION ON JURISDICTION

These claims, which arise out of alleged misfeasance by a State's Attorney (in Washington, No. 94 CC 722) and by a Circuit Court Clerk (in Washlow, No. 97 CC 3794), present a liability and jurisdictional issue of first impression: Whether these claims for allegedly wrongful acts or omissions of a State's Attorney and a Circuit Court Clerk are claims against the State by virtue of the status of these two offices as State offices under the 1970 Illinois Constitution, rather than county offices as they once were under the 1870 Constitution; and concomitantly, whether this court has jurisdiction over these claims (as claims against the State) under/8 of the Court of Claims Act (705 ILCS 505/8, sometimes referred to as /8 for brevity).

Because this is a significant issue of first impression, and because these offices share a unique history in Illinois constitutional law, we issue this joint opinion.

Nature of the Liability Claims

Washington is a legal malpractice claim that alleges negligent representation of the claimant by the Cook County State's Attorney's office in a civil paternity action against the putative father of her child pursuant to/18 (b) of the Families and Parentage Act of 1984 (750 ILCS 45/18 (b)) ((u)pon the request of a mother or child seeking to establish.. [paternity], the State's Attorney shall represent the mother or child in the trial court). Claimant alleges that the Assistant State's Attorney, acting as her attorney, negligently entered into a stipulation that waived some of claimant's entitlement to paternity payments, which she now seeks from the State as damages.

Washlow is a claim on an $8,000 bail bond posted by the claimant (for another person) with the Circuit Court Clerk of Livingston County, of which $6,850 was ordered repaid to him by the Circuit Court, but which of the Clerk's office allegedly failed to repay due to lack of funds caused by having mistakenly repaid the bond moneys to another person.

After departing the circuit court upon the consensus determination that court lacked jurisdiction over these State Offices, these claimants came here seeking redress for: (1) an alleged tort (legal malpractice) of a Cook County Assistant State's Attorney in Washington and (2) an alleged breach of fiduciary and statutory duties (failure to repay a bond pursuant to court order) of the Circuit Court Clerk of Livingston County in Washlow.

Proceedings in this Court

In this court, claimant Washington named as co-respondents the Cook County State's Attorney, an Assistant State's Attorney and Cook County. We dismissed Washington as to the State's Attorney and the Assistant State's Attorney individually, and as to Cook County, for lack of jurisdiction. (order of May 10, 1999.) For clarity, we recaptioned these cases to reflect the State and the respective State offices as respondents. See Rule 40 (c); 710 Ill.Admin.Code/790.40(c).

Both cases were pending on motions to dismiss that raised the issue, inter alia, of the claimants failure to exhaust alternative remedies (and, in Washlow, alternative sources of recover) as required by/25 of the Court of Claims Act (705 ILCS 505/25). This Court raised the jurisdictional issue sua sponte and received supplemental briefs and oral argument in both cases. We asked the parties to address, inter alia, the effect, if any, of the statutory provision for county funding of these offices (55 ILCS 5/5-1106) on the State's liability and on our jurisdiction.

Nature of the Jurisdictional Liability Issue

This court has jurisdiction only over the State (and claimants against it) and over claims asserted against the State. Although our rules permit naming State agaencies and officers as respondent, the ultimate respondent is always the State of Illinois.¹

These claims assert State liability for wrongful acts and omissions of the 102 State's Attorneys and the 102 Circuit Court Clerks on the bases of the constitutional status of these offices as State offices. Although nominally naming the State officers as the respondents, these claims invoke our /8 exclusive jurisdiction to hear and determine.. all claims (of specified classes) against the State (705 ILCS 505/8), and seek redress from State funds, which are the only funds to which an award of this court leads.

As a threshold matter, our/8 jurisdiction depends on whether an asserted claim is genuinely against the State, i.e., whether the claim states a cause of action against the State such that the general funds of the State (can) be reached in order to satisfy and obligation of (these offices), People v. Illinois State Toll Highway Commission, 3 Ill. 2d 218, 227, 120 N.E.2d 35, 41 (1954). The dispositive issue before us -- both jurisdictionally and substantively -- is whether the State is liable for damages caused by wrongful acts or omissions of these State offices.

Genesis and History of the Issue

Under the 1870 Illinois Constitution, at least prior to the 1964 Judicial Amendment, it was settled that claims against the State's Attorneys and Circuit Court Clerks were justiciable in the circuit court and were outside the jurisdiction of the court of claims because they were county officers and their liabilities were county rather than State liabilities. Montgomery v. State of Illinois, 21 Ill.Ct.Cl.205 (1952); Cram V. State of Illinois, 11 Ill.Ct.Cl.282 (1940). Until recently, that was unquestioned.

However, the constitutional status of these offices changed with the adoption of the new judicial article in 1964, which was essentially readopted as Article VI of the 1970 Constitution, although that was not officially confirmed until 18 years later in the Supreme Court's 1982 opinion in Drury v. County of McLean, supra.² The offices of State's Attorney and Circuit Court Clerk are now State offices under the Judicial Article of the 1970 Constitution: nonjudicial officers of the Judicial Branch of the State government. Ingemunson v. Hedges (1990), supra; accord, Biggerstaff v. Moran, 284 Ill.App. 3d 196, 617 N.E. 2d 781 (1st Dist. 1996); Office of the Lake County State's Attorney v. Human Rights Comm'n., 235 Ill.App. 3d 1036, 601 N.E. 2d Dist. 1992).

Under the Supreme Court's holdings in Drury, supra, and Ingemunson, supra, the county officer rationale of this court's Cram (1940) and Montgomery (1952) decisions has been superseded by the constitutional change. Cram and Montgomery are no longer good law.

Since Ingemunson and Drury, one appellate court has held that the circuit court lacks jurisdiction over claims against a State's Attorney's office, on the view that the State's Attorney is a State officer and is therefore protected by sovereign immunity. Sneed v. Howell, 306 Ill.App.3d 1149, 716 N.E. 2d 336, 240 Ill.Dec. 203 (5th Dist. 1999), leave to appeal denied, 187 Ill.2d 591 (1999). Sneed affirmed the dismissal of tort actions against the State's Attorney of Jefferson County for want of subject matter jurisdiction, because the State's Attorney is an employee of the state of Illinois (relying on Ingemunson, supra) who was allegedly negligent while acting within the scope of his official State duties; Sneed stated that this court had exclusive jurisdiction over the claims against the State's Attorney.³ Sneed, however, stands alone.

Our Supreme Court has not addressed these jurisdictional issues, which were not raised in Drury or Ingemunson. The latest decision of our Supreme Court involving a liability allegedly engendered by one of these office, Pucinski v. County of Cook, 192 Ill.2d 540, 737 N.E.2d 225, 249 Ill. Dec 835 (2000), also does not touch on these issues. Pucinski was a dispute over whether a county was liable (and whether it's approval was required) for a computer purchase contract entered by a circuit court clerk. There was no suggestion in Pucinski that the contract liability fell on the State because the clerk is now a State officer.

The General Assembly untimately controls these matters statutorily, but has not responded to the constitutional change of status of these offices. Neither this court's statutory jurisdiciton (established primarily by/8) nor Illinois sovereign immunity (reestablished by the State Immunity Act, 745 ILCS 5) have been amended in response to Drury (1982) and Ingemunson (1990).

The General Assembly has also retained the longstanding funding scheme for the State's Attorney and Circuit Court Clerk offices. Illinois law mandates the counties pay the reasonable and necessary expenses of the operations of those office (/5-1 106 of the Counties Code, 55 ILCS 5/5-1106) (formerly /5-1 106, formerly /432 of the Counties Act (repealed). The broad reasonable and necessary language was added in 1959 (Laws of Illinois, 1959, at 1879,/1). County funding was thus the statutory scheme at the time of the 1964 Judicial Amendment and at the time of the Sixth Illinois Constitutional Convention in 1969-1970, which wrote the 1970 Constitution, and has remained unaltered ever since.

The county funding scheme was re-enacted (after Drury (1982), supra, but before Ingemunson (1990), supra) in the recodification of the Counties Code in 1989 (P.A. 96-962). This mandate to fund the circuit court is enforceable against the counties, Kneupfer v. Fawell, 96 Ill. 2d 284, 449 N.E. 2d 1312 (1983).

Illinois law thus continues to place the financial responsibility for these offices reasonable and necessary expenses and the 102 counties rather than upon the State, despite their constitutional status as State offices. Althought the State itself, by statute, has levied taxes and authorized fees in order to support these offices, particularly the Cirecuit Court Clerk's office, our courts have held that resulting revenues are county rather than State funds and are subject to county rather than State appropriation and administration. Kaden v. Pucinski, 287 Ill.App.3d 546, 678 N.E. 2d 792 (1st Dist. 1997). Although the State provides limited support for salaries and for specific programs of these offices, these two State offices continue to be funded almost entirely by the counties with county funds.

This is the constitutional and statutory context in which this court must now reexamine our jurisdiction over claims against these offices, and the asserted State liability for civil damages caused by these offices.

V. Analysis

In the absence of a dispositive constitutional provision, and in the absence of a clearly dispositive or comprehensive statute, these cases appear at first blush to present a straightforward matter of reallocating governmental financial responsibility to follow the 1964/1970 constitutional shift in the governmental status of these offices -- from local to State government -- in accordance with settled principles of vicarious liability law, i.e., respondeat superior, and essentially to follow the doctrinal tracks of this court's decisions in Montgomery, supra, and Cram, supra under the 1870 Constitution into the post- 1964 and post- 1971 constitutional context. Indeed, this is the primary argument advanced by these claimants: that the common law respondeat superior doctrine of vicarious liability, as applied to the present constitutional status of these offices, yields the legal result of State liability for these State offices.

But this governmental liability issue is not so simply resolved as a common law matter. Respondeat superior does not apply to elected public officials in Illinois and thus governmental bodies are not vicariously liable for damages caused by the acts and omissions of their elected officers. Moy v. County of Cook, 159 Ill.2d 926 (1994) (county not liable for tort of county Sheriff due to lack of control over conduct of elected official).

In Moy, our Supreme Court held that respondeat superior does not apply officers of governmental bodies who are non-removable, as distinguished from mere employees. Moy reasoned that officers who are not removable and do not serve at the pleasure of their governmental bodies (which is true of virtually all, if not all, Illinois elected officials) are not employees subject to the control of their governmental employer and for whose improprieties the parent body is therefore responsible and may be held derivatively liable.

This court is bound by Moy. We find no principled basis on which to distinguish Moy's rationale so as not to apply to elected State officers in general or to these State officers in particular. Moy thus precludes vicarious State liability for the State's Attorneys and Circuit Court Clerks under respondeat superior despite their status as nonjudicial officers of the Judicial Branch (Ingemunson, supra; Drury, supra). Insofar as the Fifth District decision in Sneed v. Howell, supra, arrived at the opposite conclusion and seemingly relied on respondeat superior, we observe that its opinion did not consider or even acknowledge Moy (which had been decided a mere five years earlier).

With Moy, supra, having eliminated the common law State liability urged by the claimants, the analysis turns back to the statutes. In the absence of a governing constitutional provision, the issue of which governmental taxing body, if any, is finanacially responsible for the civil wrongs of these two offices is governed by (or subject to) statute. This is true of the State's liability as well as that of Illinois local governments: the constitutional sovereign immunity clause (1970 Ill. Const., Art. XIII,/5) makes the State's civil immunity and thus its civil liability a matter of statutory law.

However, no directly or comprehensively dispositive statute has been found, i.e. no statute has been discovered that expressly assigns responsibility for paying (and for levying taxes or imposing fees to provide public funds to pay for) liabilities of the offices of State's Attorney or Circuit Court Clerk. Two statutes do appear to affect this issue and require analysis.

First is the respondeat superior defense waiver of/8(d) of the Court of Claims Act, which provides:

The defense that the State.. is not liable for the negligence of its officers, agents, and employees in the course of their employment is not applicable to the.. determination of such claims.

This unusual-appearing provision, however, does not impose respondeat superior liability nor create a per se vicarious liability on the State. Instead, as we more fully discuss in Alencastro v. Sheahan, 54 Ill.Ct.Cl. (2001), which we also decide today, the legislative history of this provision demonstrates that it abolished the prior common law exception from respondeat superior liability for governmental functions, and thus made Illinois common law respondeat superior liability fully appliable to the state. This conclusion, of course, takes the Washington and Washlow claims right back to the Moy, supra, decision -- which is an interpretation of the Illinois common law of respondeat superior -- and which precludes State respondeat superior liability for these elected officials as discussed above.

The second statute that requires discussion is, or course, the longstanding provision, now/5-1 106 of the Counties Code (55 ILCS 5/5-1106) that mandates the counties to fund the reasonable and necessary expenses of both of these offices.

In response to the Court's inquiry, the parties have addressed this statutory mandate -- mostly by debating whether the particular liabilities asserted in these cases -- or any liabilities deriving from improper acts of these officials or their minions -- are reasonable and necessary expenses so as to fall within the statutory payment responsibility of the counties.

We need not decide that specific issue (although we raised it in these cases) for two reasons: First, if the respective counties remain generally liable under the current constitution, either directly or indirectly, for the torts and other civil liabilites of these offices (as they had been under the 1870 Constitution, and as the courts have continued to treat these offices under the current statutes, except for the Sneed decision, supra), then the determination of whether/5-1 106 reaches these particular liability claims to render the counties responsible cannot determine the general question that we must decide: whether that State is liable (which it hypothetically could be in addition to, as well as in lieu of, any county liability).

Nevertheless, it appears to this court that at least some misfeasances and nonfeasances of these offices hence some negligence -- in the routine conduct of their statutory duties falls under the reasonable and necessary expense language of the statute as Illinois counties have applied the law in practice, even without a de jure judicial ruling of record. That tentative conclusion lends some reinforcement to our conclusion that the General Assembly has never assumed nor provided for State financial responsibility for these offices.

But insofar as the legislature has spoken on this issue -- which it last did in the 1989 county statute recodification (P.A. 96-962) well after the Supreme Court had pointed out the consitutional shift in status of the cirecuit court clerks in Drury, supra -- it has called for county and not State financial responsibility for these offices. Recognizing as we do that recodification merely continued the county mandate from its original pre -- 1964 context when these offices were county offices, and that as a recodification that legislation did not necessarily reflect a considered policy determination on all of its myriad details, nevertheless that re-enactment of the county funding mandate for these offices in light of the Supreme Court's Drury analysis does raise an inference of legislative intent and carries some weight on the issue. On the other side of the scale, we find no indication in any statutory enactment of any legislative intent that liabilities of the State's Attorneys or Circuit Clerks be actionable against the State. The posture of the statutes, as we now find them, leads this court to conclude that the legislature has mandated the counties to pay at least some liabilities of the State's Attorneys and Circuit Court Clerks.

This finding of possible county financial responsibility is doubly significant for the disposition of the claims before us. Aside from the main issue of whether that State is at all liable for these claims against this State's Attorney and this Circuit Court Clerk, the mere possibility of county liability (even, hypotherically, in addition to State liability) for these claims would require us to dismiss (or to continue) these claims under our exhaustion of remedies requirement (/25, Court of Claims Act, 705 ILCS 505/25; Rule 60, 79 Ill.Admin.Code 790.60) while the Claimants pursue and exhaust their potential remedies in the constitutional courts.

Thus, even if we were to assume arguendo a State liability for these claims, this court would still be unable to grant relief now to these claimants, and would be constrained to remit the claimants to potential recovery against the counties (or against the officials offices) in the circuit court unless the Illinois reviewing courts ultimately hold that the counties have no liability. (Claimants did not fully prusue their claims in the circuit court, nor did they seek relief in the appellate or supreme courts, as they understandable but incorrectly believed that this court had exclusive jurisdiction; hopefully they will now be able to seek relief in those courts, in light of our jurisdictional decision here.)

Recapping the statutory analysis: (A) we have two State offices (B) that used to be county offices, but are now State offices by virtue of constitutional changes. (C) the operations and most if not all liabilities of which have been mandatorily paid by county government pursuant to statutes written when the offices were county offices, but which the legislature reenacted after the Supreme Court opined that at least one of these office had become a State Office, (D) that do not give rise to State liability under respondeat superior principles, and (E) State liability for these offices, if there is any, is statutorily subordinated (by/25 of the Court of Claims Act) to the counties liability, if any, which must first be exhausted before residual State Liability, if any, can be triggered. Moreover, if there is a general county liability for these offices, then that liability is likely the sole source of recovery for claimants, because there is no reason other than bankruptcy to expect that the counties would ever be unable to pay the adjuicated liabilities of these offices -- which are judically enforceable against them, Kneupfer v. Fawell, supra. Any residual State liability is at best a remote possibility.

Conclusion

We conclude that under the current posture of the offices of State's Attorney and Circuit Court Clerk as State offices under the 1970 Illinois Constitution, and under the current posture of the Illinois statutes and given the inapplicability of common law respondeat superior liability to elected State officers under the holding in Moy v. County of Cook, supra, the State is not liable for the civil liabilities asserted in these claims arising from acts or omissions of the State's Attorney of Cook County and the Cirecuit Court Clerk of Livingston County, and these claims fail to state a cause of action against the State of Illinois.

Accordingly, we must dismiss these claims for failure to state a cause of action against the State and for want of jurisdiction of this court to hear and determine these claims.

It is hereby ORDERED:

1. These claims against the State are dismissed with prejudice, for failure to state a Cause of action against the State and for lack of jurisdiction to entertain their merits:

2. These dismissals are without prejudice to any claims that may be asserted by these claimants against the named officials or against their respective counties in any court of competent jurisdiction; and

3. This dismissal order shall be entered in both No. 94CC0722 and No. 97CC3794.

FOOTNOTES

1.  The State is always the ultimate respondent in this court, although our rules allow State officers and agencies to be named. In this case, the naming of individual State officers as respondents is informational, as an agency or respondent superior designation, with the State being the true respondent. See, Rule 40(c); 710 Ill.Admin.Code 790.40(c).

2.  The 1964 Judicial Amendment to the 1870 Constitution, which was ratified in 1962 and effective in 1964, adopted an entirely new Judicial Article which gave Illinois our present unified constitutional court system; that new article was readopted substantially intact as Article VI of the 1970 Constitution, now in effect. See, Drury, supra.

3.  Although some courts have assumed a mirror-image relationship between this court's jurisdiction (established almost entirely by/8) and the State's sovereign immunity (re-established by the State Immunity Act (745 ILCS 5/1), our /8 jurisdiction is actually somewhat narrower than the State's immunity. The threshold factor (whether liability of the State is asserted) is the same for both the immunity and jurisdiciton determinations. But this court's/8 jurisdiction requires more than merely a claim against the State. A claim must also fall under one of the nine subsections (a) -- (i) of/8 to be cognizable here. A matter is not remediable in this court just because sovereign immunity divests that constitutional courts of jurisdiction.Under Illinois statutory scheme, there may be claims that are not actionable or remedies that are unavailable against the State in any Illinois court due to sovereign immunity and this court's limited authority. See, e.g., Garimella v. Board of Trustees of the University of Illinois, 50 Ill.Ct.Cl.350 (1996) (injunction); Rudolph v. State of Illinois, 52 Ill.Ct.Cl. 58 (mandamus); A-Reliable Auto Parts & Wreckers, Inc. v. State of Illinois, 54 Ill.Ct.Cl. (2000)(replevin).

FN4. ??The 1970 Constitution, like the 1870 Constitution, is silent on the governmental responsibility for liabilities of these offices..  FN4. ??The 1970 Constitution, like the 1870 Constitution, is silent on the governmental responsibility for liabilities of these offices.

FN5. ??We address below the two statutory provisions -- both raised by the court rather than the parties -- that appear to affect or control the financial responsibility for these offices..  FN5. ??We address below the two statutory provisions -- both raised by the court rather than the parties -- that appear to affect or control the financial responsibility for these offices.

FN6. ??The parties did not address Moy in their arguments, so this court does not have the benefit of their analysis. We are also unaided by later judicial interpretations of Moy..  FN6. ??The parties did not address Moy in their arguments, so this court does not have the benefit of their analysis. We are also unaided by later judicial interpretations of Moy.

FN7. ??For completeness, we observe that Moy extends to the application of respondent superior to the State with respect to the Assistant State's Attorney in Washington: Illinois courts have long held that Assistant State's Attorney's are officers, not employees. People ex rel. Landers v. Toledo, St. Louis & Western R.R. Co., 267 Ill. 142, 107 N.E. 879 (1915); Moy v. County of Cook, supra, 640 N.E. 2d at 930; Biggerstaff v. Moran, 284 Ill.App.3d 196 671 N.E. 2d 781 (1st Dist. 1996)..  FN7. ??For completeness, we observe that Moy extends to the application of respondent superior to the State with respect to the Assistant State's Attorney in Washington: Illinois courts have long held that Assistant State's Attorney's are officers, not employees. People ex rel. Landers v. Toledo, St. Louis & Western R.R. Co., 267 Ill. 142, 107 N.E. 879 (1915); Moy v. County of Cook, supra, 640 N.E. 2d at 930; Biggerstaff v. Moran, 284 Ill.App.3d 196 671 N.E. 2d 781 (1st Dist. 1996).

EPSTEIN, J.