Are Illinois counties required to pay a judgment entered against a sheriff in his official capacity?
The Illinois Supreme Court recently answered yes to this question in Carver v. Sheriff of LaSalle County, 203 Ill. 2d 497 (2003).
Carver involved a suit in federal court by former employees of the LaSalle County sheriff's department against "Anthony M. Condie, Sheriff" in his official capacity as Sheriff of LaSalle County. The first complaint filed on April 14, 1994 named as defendants both LaSalle County and Anthony Condie. On June 17, 1994, the United States District Court for the Northern District of Illinois granted a motion to dismiss filed by LaSalle County. On August 2, 1994, plaintiffs' amended complaint named only Anthony Condie in his official capacity and alleged that he engaged in sexual harassment, sex discrimination, deprivation of equal protection, and retaliation, in violation of title VII of the Civil Rights Act of 1964.
Shortly before trial, Anthony Condie entered into a consent decree with the plaintiffs in his official capacity for $500,000. The plaintiffs then sought to enforce the consent decree against LaSalle County, claiming that LaSalle County held funds appropriated by law for use by the LaSalle County Sheriff. LaSalle County argued that the consent decree was void because Sheriff Condie possessed no authority to enter into the decree and to determine how county monies would be expended.
Eventually, the Seventh Circuit certified this question to the Illinois Supreme Court, "Whether, and if so when, Illinois law requires counties to pay judgments entered against a sheriff's office in an official capacity. If the Supreme Court of Illinois believes that the answer depends on whether the case was settled as opposed to litigated, we would welcome treatment of that distinction as well."
There are two provisions of Illinois law that may be determinative of this question. First, section 5-1002 of the Counties Code sets out the duty of a county board to indemnify a sheriff or deputy for lawsuits stemming from their duties. 55 ILCS 5/5-1002 (West 2000). Secondly, section 9-102 of the Local Governmental and Governmental Employees Tort Immunity Act empowers local public entities to pay any judgment or settlement for a lawsuit against an officer acting within the scope of his or her employment. 745 ILCS 10/9-102 (West 2000).
At the outset, the court noted that section 5-1002 of the Counties Code only applies to lawsuits against the sheriff in his or her personal capacity because it specifically states it applies to "any judgment against him or her." Here, the judgment was entered against the sheriff in his official capacity. Therefore, the court found that section 5-1002 of the Counties Code does not apply.
The court then turned its attention to the question of whether a county must pay for official capacity judgments under section 9-102 of the Tort Immunity Act. Section 9-102 provides that "[a] local public entity is empowered and directed to pay any tort judgment or settlement for compensatory damages for which it or an employee while acting within the scope of his employment is liable in the manner provided in this Article... A local public entity may make payments to settle or compromise a claim or action which has been or might be filed or instituted against it when the governing body or person vested by law or ordinance with authority to make over-all policy decisions for such entity considers it advisable to enter into such a settlement or compromise."
The court began its analysis with the definition of the phrase "local public entity." Does a county sheriff qualify as a "local public entity" within the Tort Immunity Act? Section 1-206 of the Act defines "local public entity" with an inclusive listing of "county, township, municipality, ... school district, ... and all other local governmental bodies." 745 ILCS 10/1-206 (West 2000). The list does not expressly list a "county sheriff" as an example of a "local public entity." However, previously, the court had observed that the term "local public entity" is "broadly defined." Boyles v. Greater Peoria Mass Transit District, 113 Ill. 2d 545, 553 (1986). Furthermore, Illinois courts have deemed governmental bodies not found in the listing of section 1-206 to be "local public entities" under the catch-all phrase "all other governmental bodies." Thus, the court's analysis of the language of the statute allows for a sheriff to be a "local public entity" even though "sheriff" is not included in the list of section 1-206.
The court then examined the powers and duties of the sheriff's office as set out by the Illinois Constitution of 1970 and several sections of the Counties Code. Ill. Const. 1970, art. VII, '4(c); 55 ILCS 5/3-6001, 6008, 6017, 6021, 6035 (West 2000). From these provisions, the court concluded that the county sheriff is an independently elected official, who performs functions essential to the operation of government, and whose office is funded by public funds. Thus, the county sheriff falls under "all other governmental bodies" and is a "local public entity" within the meaning of the Tort Immunity Act.
Section 9-102 of the Tort Immunity Act provides that a local public entity may make payments to settle a claim filed against that public entity when a "person vested by law or ordinance with authority to make over all policy decisions for such entity considers it advisable to enter into such a settlement or compromise." (Emphasis added). It follows that the county sheriff has the authority and power to settle litigation filed against the sheriff's office and direct the office to pay that settlement. Also, since the language specifies "settlement or compromise," it expresses the legislature's intent that this statutory provision applies to both judgments and settlements. It is with this section of the Act that the court disposes of the argument that the Tort Immunity Act does not give a sheriff the authority to enter into a settlement.
After the court held that a county sheriff has the authority to make and pay settlements, it examined the mechanism for funding the payment of such settlements. The problem arises because the sheriff lacks the authority to levy taxes or to establish a budget unilaterally. Statutorily, the county board finances the sheriff's office with public funds, by levying taxes for the operation of the county and its offices and appropriating money thereto. 55 ILCS 5/4-6003, 5-1106 (West 2000). The court concluded from this statutory scheme that the county is also obligated to provide funds to the county sheriff to pay judgments entered against the sheriff in his or her official capacity. To support this conclusion, the court reasoned that it would be absurd to give a sheriff the authority to settle a claim but no means to pay for the settlement. Since the Illinois General Assembly surely would not want such an absurd result, the court concluded that the county board must finance such settlements.
The issue of requiring counties to pay for sheriff settlements is especially important because it exposes a county to expanded liability. The county sheriff is an independent elected official and is not an employee of the county. Sheriffs answer to the electorate of the county from which they are elected, and not to the county board. Thus, does the county board have any means to protect its financial interests? At first glance, one might think no. However, Carver briefly mentioned two situations where an official capacity settlement would be invalid. Slip op. at 12. First, for Carver to apply, counties must have knowledge of a lawsuit before it is settled. With knowledge of the lawsuit, counties have an opportunity to participate and protect their interests. "We note that we express no opinion with respect to the validity of a settlement agreement stemming from a lawsuit of which a county had no notice." Slip op. at 12. Second, for a settlement to be valid, the sheriff must comply with statutory provisions in section 9-102 of the Tort Immunity governing the settlement official capacity claims.
Justice Kilbride dissented, finding these safeguards inadequate. Slip op. at 14. By taking official capacity lawsuits out of the statutory authority of the section 5-1002 of the Counties Code, the majority also removed the safeguards of section 5-1002. These safeguards are a cap of $500,000 on liability, specific notice requirements, authority of the county to intervene and defend, the action and an exemption for misconduct. While the majority does limit its opinion to cases where the county had notice, there is no statutory authority under the Tort Immunity Act that requires such notice. Justice Kilbride articulates another interpretation of section 5-1002 of the Counties Code. Section 5-1002 applies to both official and personal capacity lawsuits since it clearly states that it applies to "any judgment." Thus, the majority fails to rely on the statutory provision that is plainly on point.
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* Jamie Rose is a first-year law student at the Southern Illinois University School of Law.