RICHARD R. JOHNSON, Appellee, v. MICHAEL J. HALLORAN et al., Appellants.
No. 89594
Supreme Court of Illinois
December 1, 2000
Rehearing denied January 29, 2001
194 Ill. 2d 493
Reversed and remanded.
E. Michael Kelly, Steven M. Puiszis and John P. Goggin, of Hinshaw & Culbertson, of Chicago (Stephen R. Swofford, of counsel), for appellants.
Bruce A. Beeman, of Wolter, Beeman & Lynch, of Springfield, for appellee.
CHIEF JUSTICE HARRISON delivered the opinion of the court:
The issue in this case is whether sovereign immunity bars an action against members of the Cook County public defender‘s office for negligence they allegedly committed in the course of representing Richard Johnson, an indigent criminal defendant, pursuant to an appointment by the circuit court. The circuit court answered this question in the affirmative and granted summary judgment in favor of the public defenders and against Johnson, their former client. The appellate court reversed and remanded for further proceedings. 312 Ill. App. 3d 695. We granted leave to appeal.
The record shows that in August of 1991, Richard Johnson was charged with aggravated criminal sexual assault in the circuit court of Cook County. The public de
Pretrial discovery obtained from the State included two Chicago police department lab reports. According to those reports, body fluids on the vaginal swab and panties of the victim collected after the crime revealed the presence of H activity, indicating that the fluids were from a person who was a secretor. The blood and saliva samples taken from the victim and from Johnson showed that they were both nonsecretors. Accordingly, Johnson could not have been the sole donor of the foreign body fluids found on the person or clothing of the victim.
Halloran, Johnson‘s appointed counsel, did not seek to use this information at Johnson‘s trial. Instead, he presented a motion in limine to prohibit the State from introducing any evidence of blood, semen, or saliva testing. The circuit court granted Halloran‘s motion in limine on September 4, 1992, and the test results were never placed in evidence.
Following a bench trial, Johnson was convicted in the underlying criminal case and was sentenced to 30 years in the Illinois Department of Corrections. Prior to this conviction, no DNA profile was performed on Johnson, the victim, or the victim‘s husband.
Johnson subsequently sought relief under the Post-Conviction Hearing Act (
Following his exoneration and release, Johnson brought this legal malpractice action in the circuit court of Cook County. Named as defendants were Halloran, Johnson‘s trial attorney; Moses Collins, Halloran‘s supervisor; Shelton Green, supervisor of the public
Defendants moved to dismiss plaintiff‘s complaint based on the statute of limitations. That motion was denied. Defendants then filed a motion for summary judgment on the basis of sovereign immunity, arguing that public defenders are employees of the state and that the circuit court therefore lacked subject matter jurisdiction to hear this case because plaintiff‘s claims must be brought in the Illinois Court of Claims. The circuit court granted defendants’ motion on May 27, 1998.
Plaintiff appealed, arguing that the circuit court erred in granting summary judgment in favor of the defendants on the basis of sovereign immunity. Defendants cross-appealed, contending that the circuit court erred in finding that plaintiff‘s complaint was timely filed. The appellate court agreed with the circuit court that plaintiff‘s complaint was not time-barred. Contrary to the circuit court, however, it held that the claim was not barred by sovereign immunity either. Accordingly, it reversed the entry of summary judgment against plaintiff and remanded for further proceedings.
In reviewing the lower courts’ judgments, we begin with an analysis of the defendants’ employment status. As previously indicated, the circuit court regarded the individual defendants as employees of the state. They are not. While public defenders and their assistants may exercise sovereign powers in performing their duties (Chief Judge of the Sixteenth Judicial Circuit v. Illinois State Labor Relations Board, 178 Ill. 2d 333, 344 (1997)), the exercise of sovereign power does not, by definition, convert them into state employees. In Illinois, sovereign power is not restricted to the state government. It may also be exercised by home rule units. See
By statute, the office of public defender is created in the Counties Code (see
The power to remove the public defender is vested in the president of the county board where, as here, the population of the county exceeds 1 million.
Based upon the foregoing provisions, the office of
Having established defendants’ employment status, we must next consider whether and to what extent they are shielded by sovereign immunity. The doctrine of sovereign immunity was abolished by this court in Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959). The legislature responded by enacting the Local Governmental and Governmental Employees Tort Immunity Act (
Five years after the Local Governmental and Governmental Employees Tort Immunity Act was passed, the Illinois Constitution of 1970 was ratified. Article XIII, section 4, of the Illinois Constitution provides: “Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.”
Because there was no specific statutory immunity for defendants at the time of the events giving rise to plaintiff‘s cause of action, the circuit court erred in granting summary judgment for defendants based on sovereign immunity, and its judgment was properly reversed by the appellate court. This conclusion is not altered by the General Assembly‘s subsequent enactment of the Public and Appellate Defender Immunity Act (Pub. Act 91-877, eff. June 30, 2000 (codified at
The Public and Appellate Defender Immunity Act provides that public defenders and their assistants and the persons or entities employing them are not liable “for any damages in tort, contract, or otherwise, in which the plaintiff seeks damages by reason of legal or professional malpractice, except for willful and wanton misconduct.” Putting aside the question of whether this legislation might constitute an impermissible attempt by the General Assembly to overrule the appellate court‘s judgment in a pending case, we note that application of the new law here would have the effect of stripping plaintiff
For the foregoing reasons, the judgment of the appellate court is affirmed.
Affirmed.
JUSTICE BILANDIC, specially concurring:
I agree with the majority that sovereign immunity does not bar an action against members of the Cook County public defender‘s office for negligence they allegedly committed in the course of representing Richard Johnson. I also agree that the subsequently enacted Public and Appellate Defender Immunity Act (Act) (Pub. Act 91-877, eff. June 30, 2000 (codified at
I, along with other members of this court, have advocated the adoption by this court of the test set forth by the United States Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994), for determining when a new or amended statute will be applied on appeal to pending cases. See People v. Ramsey, 192 Ill. 2d 154, 159-74, 174-88 (2000) (Bilandic, J., specially concurring; Freeman, J., also specially concurring, joined by McMorrow, J.). As I noted in Ramsey, the Landgraf test, which was devised for determining when a new federal statute will be applied on appeal to pending cases, is set forth as follows:
“When a case implicates a federal statute [or a state statute] enacted after the events in suit, the court‘s first task is to determine whether Congress [or the General Assembly] has expressly prescribed the statute‘s proper reach.
If Congress [or the General Assembly] has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party‘s liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern ***.” See Ramsey, 192 Ill. 2d at 171-72 (Bilandic, J., specially concurring), quoting Landgraf, 511 U.S. at 280, 128 L. Ed. 2d at 261-62, 114 S. Ct. at 1505.
I reiterate that this court should apply the above test in this case and in future cases concerning the application of a new or amended statute to a case pending on appeal. Applying the Landgraf test to the present case begins with the language of the Act itself. First, we must determine whether the General Assembly has expressly prescribed the proper reach of the Act, i.e., whether the act applies to pending cases. See Landgraf, 511 U.S. at 280, 128 L. Ed. 2d at 261-62, 114 S. Ct. at 1505. The Act contains the following sentence: “This Act takes effect upon becoming law,” i.e., on June 30, 2000. See Pub. Act 91-877, § 99, eff. June 30, 2000. Such language does not indicate clearly the temporal reach of this Act. The question therefore becomes whether the Act would have retroactive effect, namely, whether it would impair the rights a party possessed when he acted. See Landgraf, 511 U.S. at 280, 128 L. Ed. 2d at 262, 114 S. Ct. at 1505. Application of the Act to this case would have retroactive effect because it would deprive plaintiff of his legal malpractice cause of action, based on negligence, which he possessed when he filed suit against defendants. Therefore, pursuant to the Landgraf test, our traditional presumption against statutory retroactivity teaches that this Act does not govern in this case, which was pending on appeal when the Act became law.
JUSTICES FREEMAN and McMORROW join in this special concurrence.