                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                       McFatridge v. Madigan, 2011 IL App (4th) 100936




Appellate Court            MICHAEL M. McFATRIDGE and THE COUNTY OF EDGAR,
Caption                    Plaintiffs-Appellants, v. LISA M. MADIGAN, Attorney General,
                           Defendant-Appellee.



District & No.             Fourth District
                           Docket No. 4-10-0936


Filed                      December 14, 2011


Held                       The trial court erred in dismissing plaintiffs’ complaint for mandamus
(Note: This syllabus       seeking an order directing the Attorney General to approve payment for
constitutes no part of     the reasonable litigation expenses incurred by plaintiff, a former State’s
the opinion of the court   Attorney, in defending actions for malicious prosecution, false
but has been prepared      imprisonment, and intentional infliction of emotional distress filed by two
by the Reporter of         persons plaintiff successfully prosecuted for murder and arson who were
Decisions for the          later released from custody, since the complaint alleged sufficient facts
convenience of the         to show a clear right of recovery on plaintiff’s part and a clear duty on the
reader.)
                           part of the Attorney General under section 2(b) of the State Employee
                           Indemnification Act.


Decision Under             Appeal from the Circuit Court of Sangamon County, No. 10-MR-530; the
Review                     Hon. Patrick J. Londrigan, Judge, presiding.



Judgment                   Reversed.
Counsel on                 Michael E. Raub (argued), of Heyl, Royster, Voelker & Allen, of Urbana,
Appeal                     and Terry L. Ekl (argued), of Ekl Williams, PLLC, of Lisle, for
                           appellants.

                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro
                           (argued), Solicitor General, and Brian F. Barov, Assistant Attorney
                           General, of counsel), for appellee.


Panel                      JUSTICE POPE delivered the judgment of the court, with opinion.
                           Justices Steigmann and Knecht concurred in the judgment and opinion.




                                             OPINION

¶1          In August 2010, plaintiffs, Michael M. McFatridge and Edgar County, Illinois
        (McFatridge), filed a complaint for mandamus relief seeking an order directing defendant,
        Lisa M. Madigan, the Illinois Attorney General (Attorney General), to approve payment for
        reasonable litigation expenses incurred in the defense of two civil actions filed against
        plaintiffs by Gordon “Randy” Steidl and Herbert Whitlock.
¶2          In October 2010, the trial court dismissed plaintiffs’ complaint, finding it did not state
        facts “necessary to establish a clear and undoubted right to relief sought and a corresponding
        duty on the part of the [Attorney General] to perform the act demanded.” The trial court did
        not provide any rationale for its ruling.
¶3          Plaintiffs appeal, arguing the trial court erred in dismissing the mandamus complaint
        where the complaint pleaded sufficient facts to show a clear right of recovery on the part of
        McFatridge and a clear duty on behalf of the Attorney General because section 2(b) of the
        State Employee Indemnification Act (Act) (5 ILCS 350/2(b) (West 2008)) requires the
        Attorney General to provide for McFatridge’s defense costs. We reverse.

¶4                                         I. BACKGROUND
¶5           Between 1980 and 1991, McFatridge served as the State’s Attorney of Edgar County,
        Illinois. In 1987, McFatridge successfully prosecuted Steidl and Whitlock for murder. Steidl
        was convicted of the murders of both Dyke Rhoads and Karen Rhoads and received a
        sentence of death, which was later reduced to natural life in prison. Whitlock was convicted
        of murdering Karen Rhoads and sentenced to life in prison.
¶6           In June 2003, the United State District Court for the Central District of Illinois granted
        Steidl’s habeas corpus petition, vacated Steidl’s conviction, and gave the State 120 days to
        either release or retry Steidl. Steidl v. Walls, 267 F. Supp. 2d 919, 940-41 (2003). In 2007,

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       this court granted Whitlock’s posttrial motion and ordered his release or retrial. People v.
       Whitlock, No. 4-05-0958 (Sept. 6, 2007) (unpublished order under Supreme Court Rule 23).
       Both Steidl and Whitlock have since been released from custody and have not been retried.
¶7          In May 2005, Steidl filed a complaint in the United States District Court for the Central
       District of Illinois pursuant to, inter alia, section 1983 of the Civil Rights Act (42 U.S.C.
       § 1983 (2000)) against a number of officials involved in his prosecution, including
       McFatridge and Edgar County. Steidl’s complaint alleged several claims, including malicious
       prosecution, false imprisonment, and intentional infliction of emotional distress. Specifically,
       Steidl alleged he was tried and convicted of murder and arson and sentenced to death based
       on false evidence which was fabricated, coerced, and manipulated by McFatridge.
¶8          In June 2005, McFatridge requested the Illinois Attorney General represent him in the
       Steidl litigation pursuant to section 2 of the Act (5 ILCS 350/2 (West 2008)).
¶9          In a July 6, 2005, letter, the Attorney General declined McFatridge’s request on the
       ground “the acts or omissions which give rise to plaintiff’s claim involve allegations of
       intentional, wilful or wanton misconduct on your part.” The letter also stated, “If the court
       or jury find that the acts complained of were not intentional, wilful or wanton misconduct
       you will be indemnified for any judgment and reasonable attorneys’ fees will be reimbursed
       as provided by law.”
¶ 10        In April 2009, Whitlock filed an amended complaint in federal court against McFatridge
       and Edgar County, alleging claims similar to those contained in Steidl’s complaint. Both
       Whitlock’s and Steidl’s lawsuits sought to hold Edgar County financially responsible for any
       judgment entered against McFatridge because McFatridge was its employee. According to
       the parties, both actions are currently pending in federal district court.
¶ 11        In March and April 2009, then Edgar County State’s Attorney Matthew Sullivan
       requested the Attorney General represent McFatridge in the Steidl and Whitlock litigation.
       Sullivan also asked the State to pay at least two-thirds of Edgar County’s legal expenses.
¶ 12        On May 6, 2009, the Attorney General denied both of Sullivan’s requests. The Attorney
       General declined to represent McFatridge because his acts or omissions “involved allegations
       of intentional, wilful or wanton misconduct.” The Attorney General stated McFatridge would
       be reimbursed for reasonable attorney fees “if a court or jury [finds] the acts complained of
       were not intentional, wilful or wanton.” The Attorney General also denied Sullivan’s request
       to pay Edgar County’s legal fees because the Attorney General “does not represent counties
       and other units of local government.”
¶ 13        In a July 20, 2010, letter to the Attorney General, Terry Ekl, McFatridge’s retained
       counsel, wrote the following:
                “Steidl filed suit in 2005 and Whitlock filed suit in 2008 shortly after his release from
            custody. Two insurance carriers, Scottsdale Insurance and White Mountain Insurance,
            have been defending this matter under a reservation of rights for several years and had
            agreed to pay our attorney’s fees. Scottsdale was recently successful in winning a
            declaratory judgment suit in connection with their duty to defend as well as
            indemnification for any judgment obtained against Mr. McFatridge. Scottsdale informed
            us that as of May 12, 2010[,] they will no longer be funding the defense of McFatridge.

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          White Mountain recently informed McFatridge in writing that they will no longer pay the
          costs of his defense as of June 30, 2010.
              Pursuant to 5 ILCS 350/2, as the elected State’s Attorney of Edgar County,
          performing acts within his official capacity, he is entitled to have the expenses of his
          defense including attorney fees paid by the State of Illinois. My law firm has been
          involved in this matter for over four (4) years and Mr. McFatridge would exercise his
          right under 5 ILCS 350/2 to have my firm continue to defend this case to conclusion.”
¶ 14      In an August 19, 2010, letter, the Attorney General referenced its prior denials of
       McFatridge’s previous requests for representation and wrote the following:
              “By letters dated June 14 and June 29, 2005, Mr. McFatridge requested
          representation in the Steidl Lawsuit. That request was denied July 6, 2005. Former
          State’s Attorney Matthew Sullivan, by letters dated March 12 and April 21, 2009,
          requested that the State of Illinois provide a defense to Mr. McFatridge in both the Steidl
          and Whitlock Lawsuits, and also asked that the State pay two-thirds of the Edgar County
          legal expenses in both Lawsuits. These requests were denied May 6, 2009. The July 6,
          2005[,] and May 6, 2009[,] denials were because the acts or omissions which gave rise
          to Steidl and Whitlock’s claims against Mr. McFatridge involved allegations of
          intentional, wilful or wanton misconduct. With these prior denials, Mr. McFatridge and
          Mr. Sullivan were also told that if a court or jury were to find that the acts Steidl and
          Whitlock complained of did not represent intentional, wilful or wanton misconduct, Mr.
          McFatridge would be indemnified for any judgment, and reasonable attorneys’ fees
          would be reimbursed as provided by law.
              The basis for each of your current August 6 and July 20, 2010[,] requests are [sic]
          essentially the same. Scottsdale Insurance and White Mountain Reinsurance had
          provided Mr. McFatridge and the County with a defense under certain insurance policies.
          Scottsdale’s successful declaratory judgment action was recently affirmed by the Seventh
          Circuit. Scottsdale therefore will no longer provide a defense to Mr. McFatridge. White
          Mountain has also said it will no longer provide a defense. I have reviewed the White
          Mountain and Scottsdale letters denying any further defense to Mr. McFatridge. Further,
          I have reviewed the District Court declaratory judgment orders denying coverage, as well
          as the Seventh Circuit opinion affirming the denial of coverage. None of these materials
          found that the acts of which Steidl and Whitlock complain do not represent intentional,
          wilful or wanton misconduct.
              Further, in neither of the Steidl or Whitlock lawsuits has a court or jury found that
          Mr. McFatridge did not engage in intentional, wilful or wanton misconduct. In fact, in
          a September 6, 2007[,] court order awarding Whitlock post conviction relief, a
          unanimous Illinois Appellate Court concluded as follows: ‘we further hold that the State
          violated Brady by suppressing [evidence] ***.’
              For these reasons, your latest requests for representation for Mr. McFatridge are
          denied.”
¶ 15      On August 30, 2010, McFatridge filed a complaint for mandamus against the Attorney
       General requesting an order directing the Attorney General to “approve all reasonable

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       litigation expenses and attorneys’ fees which [McFatridge] expects to incur in the defense
       of the Steidl and Whitlock civil suits.”
¶ 16        On October 1, 2010, pursuant to section 2-619.1 of the Code of Civil Procedure
       (Procedure Code) (735 ILCS 5/2-619.1 (West 2008)), the Attorney General filed a combined
       motion to dismiss McFatridge’s complaint under both sections 2-615 and 2-619 (735 ILCS
       5/2-615, 2-619 (West 2008)). The section 2-615 motion argued the Attorney General is
       afforded discretion under the Act and mandamus is not a proper remedy to control the
       exercise of discretion by a state official. The section 2-619 motion argued the complaint
       should be dismissed because (1) the complaint attempts to control the actions of state
       officials in a matter where the Attorney General is granted discretion, (2) the complaint is
       barred by the statute of limitations and laches where the claim was brought more than five
       years after the Attorney General denied McFatridge’s request for representation, and (3)
       McFatridge’s claims are barred by sovereign immunity.
¶ 17        On October 21, 2010, the trial court dismissed McFatridge’s complaint pursuant to
       section 2-619 because it did not state facts “necessary to establish a clear and undoubted right
       to relief sought and a corresponding duty on the part of the [Attorney General] to perform
       the act demanded.” However, the trial court failed to provide any rationale for its decision.
       (Although the docket sheet reflects the court allowed the section 2-619 motion to dismiss,
       it appears the section 2-615 motion to dismiss was allowed.)
¶ 18        This appeal followed.

¶ 19                                       I. ANALYSIS
¶ 20       On appeal, McFatridge argues the trial court erred in dismissing his mandamus complaint
       where the complaint pleaded sufficient facts to show a clear right of recovery on the part of
       McFatridge and a clear duty on behalf of the Attorney General. Specifically, McFatridge
       contends section 2(b) of the Act requires the Attorney General to provide for McFatridge’s
       defense costs. McFatridge maintains under section 2(b) of the Act, the Attorney General has
       no discretion to refuse to pay his reasonable attorney fees.
¶ 21       The Attorney General argues section 2(b) affords the Attorney General the discretion to
       deny McFatridge’s attorney fees and mandamus cannot be used to control a matter within its
       discretion. In the alternative, the Attorney General contends (1) McFatridge’s mandamus
       complaint was barred by (a) the statute of limitations and (b) sovereign immunity and (2)
       McFatridge is not an elected state official because he is no longer serving as State’s Attorney.

¶ 22                                    A. Standard of Review
¶ 23        “Mandamus is an extraordinary remedy that may be used to compel a public officer to
       perform his official duties that do not involve an exercise of discretion.” Ford v. Walker, 377
       Ill. App. 3d 1120, 1124, 888 N.E.2d 123, 127 (2007). Mandamus is not proper to direct the
       manner in which a discretionary act is performed even if the judgment or discretion has been
       erroneously exercised. Turner-El v. West, 349 Ill. App. 3d 475, 480, 811 N.E.2d 728, 733
       (2004). A court will not grant a writ of mandamus unless the moving party demonstrates a


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       clear, affirmative right to relief, a clear duty on the part of the opposing party to act, and clear
       authority in the opposing party to comply with the writ. Walker, 377 Ill. App. 3d at 1124, 888
       N.E.2d at 127.
¶ 24       The Attorney General filed a combined motion to dismiss McFatridge’s mandamus
       complaint. See 735 ILCS 5/2-619.1 (West 2008). A section 2-615 motion to dismiss (735
       ILCS 5/2-615 (West 2008)) attacks the sufficiency of the complaint and raises the question
       of whether the allegations of the complaint, when viewed in the light most favorable to the
       nonmoving party, are sufficient to state a cause of action upon which relief can be granted.
       Marshall v. Burger King Corp., 222 Ill. 2d 422, 429, 856 N.E.2d 1048, 1053 (2006). Because
       a motion to dismiss under section 2-615 challenges the legal sufficiency of the complaint by
       alleging defects on its face, we review an order ruling on the motion de novo. City of
       Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 364, 821 N.E.2d 1099, 1110 (2004). In
       ruling on a section 2-619 motion to dismiss, “ ‘the trial court must interpret all pleadings and
       supporting documents in the light most favorable to the nonmoving party,’ and it should
       grant the motion ‘if the plaintiff can prove no set of facts that would support a cause of
       action.’ ” Hadley v. Montes, 379 Ill. App. 3d 405, 407, 883 N.E.2d 703, 706 (2008) (quoting
       Rodriguez v. Sheriff’s Merit Comm’n of Kane County, 218 Ill. 2d 342, 349, 843 N.E.2d 379,
       382 (2006)). We review de novo the dismissal of a complaint pursuant to section 2-619.
       Smith v. Waukegan Park District, 231 Ill. 2d 111, 115, 896 N.E.2d 232, 235 (2008).

¶ 25                                    B. Indemnification Act
¶ 26        The central issue in this important case requires this court to construe section 2 of the
       Act. We review issues of statutory construction de novo. People v. Ehley, 381 Ill. App. 3d
       937, 943, 887 N.E.2d 772, 778 (2008). When interpreting a statute, we must “ascertain and
       give effect to the intent of the legislature.” O’Casek v. Children’s Home & Aid Society of
       Illinois, 229 Ill. 2d 421, 440, 892 N.E.2d 994, 1007 (2008). The best evidence of that intent
       is the plain language of the statute, and when the language of the statute is clear and
       unambiguous, this court is bound by that plain language. Albee v. City of Bloomington, 365
       Ill. App. 3d 526, 528, 849 N.E.2d 1094, 1096 (2006). “Where the language of the statute is
       clear and unambiguous, we must apply it as written, without resort to other tools of statutory
       construction.” MD Electrical Contractors, Inc. v. Abrams, 228 Ill. 2d 281, 287-88, 888
       N.E.2d 54, 58 (2008). However, if the language of a statute is ambiguous, a reviewing court
       may look to tools of interpretation to ascertain the intended meaning of a provision. DeLuna
       v. Burciaga, 223 Ill. 2d 49, 59, 857 N.E.2d 229, 236 (2006). A statute is ambiguous where
       two well-informed people could reach different conclusions regarding its language. MD
       Electrical Contractors, 228 Ill. 2d at 288, 888 N.E.2d at 58.
¶ 27        McFatridge argues under the second paragraph of section 2(b) of the Act, the Attorney
       General does not possess discretion to refuse payment of attorney fees for elected state
       officials. The Attorney General argues pursuant to the first paragraph of section 2(b) it
       possessed the discretion to decline McFatridge’s request for attorney fees because it
       determined the alleged acts underlying the civil claim were intentional, wilful, or wanton
       misconduct. However, a statute should be read as a whole and construed so as to give effect


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       to every word, clause, and sentence and should not be read in a way that would render any
       part superfluous or meaningless. Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189, 561 N.E.2d 656,
       661 (1990). Accordingly we cannot read either paragraph of section 2(b) without considering
       it in the context of the Act as a whole.
¶ 28        Section 2(a) of the Act provides for the representation and indemnification of state
       employees in civil actions as follows:
            “In the event that any civil proceeding is commenced against any State employee arising
            out of any act or omission occurring within the scope of the employee’s State
            employment, the Attorney General shall, upon timely and appropriate notice to him by
            such employee, appear on behalf of such employee and defend the action.” 5 ILCS
            350/2(a) (West 2008).
¶ 29        The Act also provides limitations on the Attorney General’s representation of state
       employees. Pursuant to section 2(b), the Attorney General “shall decline” to represent a state
       employee where
            “the Attorney General determines that so appearing and defending an employee either (1)
            involves an actual or potential conflict of interest, or (2) that the act or omission which
            gave rise to the claim was not within the scope of the employees’s State employment or
            was intentional, wilful or wanton misconduct.” 5 ILCS 350/2(b) (West 2008).
¶ 30        In the event the Attorney General declines representation because of an actual or potential
       conflict of interest, the employee “may employ his own attorney to appear and defend, in
       which event the State shall pay the employee’s court costs, litigation expenses and attorneys’
       fees to the extent approved by the Attorney General as reasonable, as they are incurred.” 5
       ILCS 350/2(b) (West 2008).
¶ 31        If the Attorney General declines representation on the ground the employee’s act or
       omission leading to the claim was not within the scope of employment or was intentional,
       wilful, or wanton misconduct, then only in the event the trier of fact finds the employee’s
       “acts or omissions” were within the scope of his employment and were not the result of
       intentional, wilful, or wanton misconduct will the State indemnify the employee for any
       damages awarded, court costs, and attorney fees assessed as any part of any final judgment.
       In addition, the State would also have to reimburse the employee’s litigation costs and
       attorney fees, as approved by the Attorney General as reasonable. 5 ILCS 350/2(b) (West
       2008).
¶ 32        Section 1, the “Definitions” section of the Act, defines the term “employee” as including,
       inter alia, former or present elected state officers. 350 ILCS 350/1(b) (West 2008).
¶ 33        In this case, the Attorney General declined to represent McFatridge on the ground the
       underlying claim arose from intentional, wilful, or wanton misconduct–presumably a
       reference to the limitations found in paragraph one of section 2(b) of the Act. However, the
       limitations in paragraph one of section 2(b) notwithstanding, paragraph two of section 2(b)
       specifically addresses elected state officials as follows:
                 “In the event that the defendant[, i.e., ‘employee,’] in the proceeding is an elected
            State official, including members of the General Assembly, the elected State official may
            retain his or her attorney, provided that said attorney shall be reasonably acceptable to

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            the Attorney General. In such case, the State shall pay the elected State official’s court
            costs, litigation expenses, and attorneys’ fees, to the extent approved by the Attorney
            General as reasonable, as they are incurred.” (Emphases added.) 5 ILCS 350/2(b) (West
            2008).
       By excluding the more general category of nonelected employees from this paragraph, the
       General Assembly demonstrated it intended to create a much narrower category of employee
       to treat differently. See Knolls Condominium Ass’n v. Harms, 202 Ill. 2d 450, 459, 781
       N.E.2d 261, 267 (2002) (where both a general and specific statutory provision relating to the
       same subject exist in the same act, we will presume the legislature intended the more specific
       provision to govern). Indeed, counsel agreed at oral argument the term “elected State
       official” includes only the 6 statewide constitutional officers, the 102 elected State’s
       Attorneys, and the 176 members of the General Assembly. This is a very limited class of
       actors, all of whom are elected on a partisan basis (which by itself lends rational support for
       the requirement the State pay for the elected official’s reasonable choice of attorney without
       regard to any exercise of discretion on the part of the Attorney General who, as a
       constitutional officer, is a member of that class). It is reasonable to conclude the legislature
       sought to insulate partisan elected officials from potential withholding of representation or
       from arbitrary denial of payment for attorney fees when the opposite party is in control of
       those decisions. It is also reasonable to conclude the legislature would provide special
       protection to elected State’s Attorneys whose decisions to prosecute individuals must be able
       to be made without the threat of financial bankruptcy should they be sued.
¶ 34        The second paragraph of section 2(b) does not contain the limiting language found in the
       first paragraph of section 2(b). Instead, this paragraph provides elected officials with the right
       to employ the counsel of their choosing and limits the Attorney General’s discretion in this
       regard to whether the elected official’s choice of counsel and the attorney fees are reasonable.
       In the absence of either of these enumerated determinations, the Act mandates “the State
       shall pay the elected State official’s court costs, litigation expenses, and attorneys’ fees ***
       as they are incurred.” 5 ILCS 350/2(b) (West 2008).
¶ 35        We note the Attorney General’s argument would be stronger if the second paragraph of
       section 2(b) appeared in section 2(a), rather than in section 2(b). If that were the case, the Act
       would provide all state employees receive the Attorney General’s representation, but in the
       event you are an elected state official, you may retain counsel of your choosing. Then both
       those elected and nonelected would be subject to the limitations on the Attorney General’s
       representation found in paragraph one of section 2(b), i.e., conflicts of interest and
       intentional, wilful, or wanton misconduct findings.
¶ 36        In this case, however, the only requirement found in section 2(b) relating to elected
       officials is that their choice of attorney and the fees charged by that attorney are
       reasonable–nothing more. If the General Assembly wanted to impose additional restrictions
       and limitations on the State’s obligation to pay for an elected official’s court costs, litigation
       expenses, and attorney fees, it would have so stated. It did not. Instead, the plain language
       of the second paragraph of section 2(b) provides McFatridge with a clear, affirmative right
       to reimbursement of his legal costs as they are incurred, regardless of any determination by
       the Attorney General of intentional, wilful, and wanton misconduct. Accordingly, the State

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       is obligated to pay McFatridge’s court costs, litigation expenses, and attorney fees to the
       extent the Attorney General determines those charges are reasonable.

¶ 37                                   C. Statute of Limitations
¶ 38       In the alternative, the Attorney General argues McFatridge’s mandamus complaint was
       time-barred by the five-year limitation period found in the “catch-all” provision of section
       13-205 of the Procedure Code. 735 ILCS 5/13-205 (West 2008) (“all civil actions not
       otherwise provided for, shall be commenced within 5 years next after the cause of action
       accrued”). Specifically, the Attorney General contends McFatridge’s claim accrued on July
       6, 2005, when the Attorney General denied his initial request for representation and therefore
       his August 30, 2010, mandamus complaint was not timely filed.
¶ 39       McFatridge argues the five-year statute of limitations is not at issue in this case where
       the Attorney General did not deny his request to have the State pay for his litigation expenses
       and attorney fees until August 19, 2010, and he filed his complaint on August 30, 2010. We
       agree with McFatridge.
¶ 40       In a July 20, 2010, letter to the Attorney General, McFatridge’s retained counsel, wrote
       in relevant part, the following:
               “Pursuant to 5 ILCS 350/2, as the elected State’s Attorney of Edgar County,
           performing acts within his official capacity, he is entitled to have the expenses of his
           defense including attorney fees paid by the State of Illinois. My law firm has been
           involved in this matter for over four (4) years and Mr. McFatridge would exercise his
           right under 5 ILCS 350/2 to have my firm continue to defend this case to conclusion.”
¶ 41       In an August 19, 2010, letter, the Attorney General referenced its prior denials of
       McFatridge’s previous requests for representation and wrote the following:
               “By letters dated June 14 and June 29, 2005[,] McFatridge requested representation
           in the Steidl lawsuit. That request was denied July 6, 2005. Former State’s Attorney
           Matthew Sullivan, by letters dated Match 12 and April 21, 2009, requested that the State
           of Illinois provide a defense to [McFatridge] in both the Steidl and Whitlock lawsuits,
           and also asked that the State pay two-thirds of the Edgar County legal expenses in both
           Lawsuits. These requests were denied May 6, 2009. The July 6, 2005[,] and May 6,
           2009[,] denials were because the acts or omissions which gave rise to Steidl and
           Whitlock’s claims against [McFatridge] involved allegations of intentional, wilful or
           wanton misconduct. With these prior denials, [McFatridge] and Mr. Sullivan were also
           told that if a court or jury were to find that the acts Steidl and Whitlock complained of
           did not represent intentional, wilful or wanton misconduct [McFatridge] would be
           indemnified for any judgment, and reasonable attorney’s fees would be reimbursed as
           provided by law.
               The basis for your current August 6 and July 20, 2010[,] requests are [sic] essentially
           the same. Scottsdale Insurance and White Mountain Reinsurance had provided Mr.
           McFatridge and the County with a defense under certain insurance policies. Scottsdale’s
           successful declaratory judgment action was recently affirmed by the Seventh Circuit.
           Scottsdale therefore will no longer provide a defense to Mr. McFatridge. White Mountain

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           has also said it will no longer provide a defense. I have reviewed the White Mountain and
           Scottsdale letters denying any further defense to Mr. McFatridge. Further, I have
           reviewed the District Court declaratory judgment orders denying coverage, as well as the
           Seventh Circuit opinion affirming the denial of coverage. None of these materials found
           that the acts of which Steidl and Whitlock complain do not represent intentional, wilful
           or wanton misconduct.
                Further, in neither of the Steidl or Whitlock lawsuits has a court or jury found that
           Mr. McFatridge did not engage in intentional, wilful or wanton misconduct. In fact, in
           a September 6, 2007, order awarding Whitlock post conviction relief, a unanimous
           Illinois Appellate Court concluded as follows: ‘we further hold that the State violated
           Brady by suppressing [evidence] ***.’
                For these reasons, your latest request for representation for Mr. McFatridge are
           denied.”
¶ 42       In this case, the record shows the Attorney General’s denial of McFatridge’s July 20,
       2010, request for payment of attorney fees and litigation expenses took place on August 19,
       2010, not in 2005. We note that contrary to the wording of the Attorney General’s letter,
       McFatridge’s July 20, 2010, request was for payment of attorney fees and not a request for
       the Attorney General’s representation. When the Attorney General responded to
       McFatridge’s initial 2005 request for representation, it only declined to represent him and
       did not address McFatridge’s choice of counsel or payment of his legal fees if reasonable.
       Instead, the Attorney General advised McFatridge would be indemnified for any judgment
       and reimbursed reasonable attorney fees only if the trier of fact found the acts complained
       of were not intentional, wilful, or wanton misconduct (presumably a reference to the
       limitations found in paragraph one of section 2(b) of the Act).
¶ 43       According to the record before us, McFatridge had not specifically requested the State
       pay for his litigation expenses and attorney fees because he was an elected official. Likewise,
       it was not until August 2010 that the Attorney General denied McFatridge’s paragraph two,
       section 2(b) request. Accordingly, the statute of limitations would have begun to run in
       August 2010, i.e., when his specific request for payment of litigation expenses and attorney
       fees was denied. McFatridge filed his mandamus complaint on August 30, 2010, well within
       the five-year statutory period provided for by section 13-205 of the Procedure Code. We note
       even if we were to use the Attorney General’s May 2009 denial of Sullivan’s request that the
       State pay at least two-thirds of Edgar County’s legal expenses as the date the action accrued,
       McFatridge’s mandamus complaint would still have been filed within the five-year statutory
       period. Accordingly, the Attorney General’s argument McFatridge’s complaint is barred by
       the statute of limitations fails.

¶ 44                                D. Sovereign Immunity
¶ 45       The Attorney General also argues McFatridge’s mandamus complaint is barred by
       sovereign immunity to the extent it seeks to control the Attorney General’s exercise of
       discretion. McFatridge replies, arguing sovereign immunity is not at issue in this case
       because the Attorney General was without discretion to deny his request for reimbursement.

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¶ 46       “The purpose of sovereign immunity is to protect the state from interference with the
       performance of governmental functions and to preserve and to protect state funds.” People
       ex rel. Manning v. Nickerson, 184 Ill. 2d 245, 248, 702 N.E.2d 1278, 1280 (1998). An action
       seeking money damages against the State must be brought in the court of claims. See Stone
       v. Chrans, 142 Ill. App. 3d 235, 237, 491 N.E.2d 830, 832 (1986) (affirming the trial court’s
       order striking a portion of a mandamus petition seeking money damages and finding the
       court of claims had exclusive jurisdiction over that claim).
¶ 47       However, “the determination of whether a suit is brought against the State and thus
       barred by the doctrine of sovereign immunity does not depend on the identity of the formal
       parties, but rather on the issued raised and the relief sought.” Senn Park Nursing Center v.
       Miller, 104 Ill. 2d 169, 186, 470 N.E.2d 1029, 1038 (1984) (citing Senn Park Nursing Center
       v. Miller, 118 Ill. App. 3d 733, 746, 455 N.E.2d 162, 171 (1983)). A suit to compel state
       officials to act in accordance with the law is not regarded as an action against the state and
       is not barred by sovereign immunity even though the payment of state funds may be
       involved. In re Lawrence M., 172 Ill. 2d 523, 527, 670 N.E.2d 710, 713 (1996). Compelling
       a state official to act in accordance with the law, even if so acting involves the payment of
       state funds, differs from an action seeking actual money damages from the State and the state
       official in his official capacity. See, e.g., City of Chicago v. Board of Trustees of the
       University of Illinois, 293 Ill. App. 3d 897, 901-02, 689 N.E.2d 125, 128 (1997). “ ‘[A]n
       action to compel a public official to perform a clear and mandatory duty is not a suit against
       the State.’ ” Senn Park, 104 Ill. 2d at 189, 470 N.E.2d at 1039 (quoting Senn Park, 118 Ill.
       App. 3d at 746, 455 N.E.2d at 171-72).
¶ 48       In this case, McFatridge’s mandamus complaint was directed against the Attorney
       General in her official capacity and was not a suit against the State. We note this is not a case
       where McFatridge has filed a mandamus complaint because the Attorney General has refused
       to reimburse all of McFatridge’s claimed litigation expenses on the ground they are
       unreasonable. Instead, McFatridge is asking the Attorney General to perform a clear and
       nondiscretionary task. For the reasons previously stated, the plain language of section 2(b),
       as it pertains to elected officials, only affords the Attorney General discretion to refuse
       payment of attorney fees if it finds either (1) the elected official’s choice of counsel
       unsatisfactory, or (2) the fees are determined to be unreasonable. Neither instance is at issue
       here. Instead, in this case, the Attorney General has refused to pay any of the costs without
       regard to a reasonableness determination or an expression of dissatisfaction with
       McFatridge’s choice of counsel. Because the Attorney General has no discretion outside of
       these matters to deny reimbursement, sovereign immunity cannot be raised as a defense.

¶ 49                                 E. Former Elected Officials
¶ 50      Finally, the Attorney General argues McFatridge is not an elected state official for
       purposes of the Act because he is no longer serving as State’s Attorney. We are unpersuaded.
¶ 51      As previously stated, counsel agreed the number of elected state officials covered in the
       second paragraph of section 2(b) is comprised of the members of the General Assembly, the
       constitutional officers, and the elected State’s Attorneys. While we question how frequently


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       a member of the General Assembly would be subject to a section 1983 claim, we can easily
       conceive of many scenarios where federal civil rights claims are brought against former
       State’s Attorneys for actions taken during their tenure. Further, those claims brought pursuant
       to section 1983 would necessarily involve claims of intentional, wilful, and wanton
       misconduct.
¶ 52       According to the Attorney General’s position, if an elected State’s Attorney retired or lost
       an election during the pendency of the litigation, or simply had a claim brought against him
       or her a day after leaving office, he or she would lose the right to have the State pay for the
       counsel of his or her choosing. Such situations would provide inconsistent and absurd results.
       A reviewing court is “not bound by the literal language of a statute if that language produces
       absurd or unjust results not contemplated by the legislature.” In re Donald A.G., 221 Ill. 2d
       234, 246, 850 N.E.2d 172, 179 (2006). When the legislature used the word “is” in the
       sentence “In the event the defendant in the proceeding is an elected State official,” it was
       merely differentiating that class of employee–elected state officials–from the thousands of
       other state employees without the special protection of being able to hire their own counsel
       at State expense. It was not limiting the protection of the statute only to present elected state
       officials. Here, McFatridge is clearly being sued for actions he took in prosecuting Steidl and
       Whitlock while the elected State’s Attorney of Edgar County. It is clear the General
       Assembly meant to protect elected State’s Attorneys in the second paragraph of section 2(b).
       Accordingly, the Attorney General’s argument fails.

¶ 53                                   III. CONCLUSION
¶ 54      For the reasons stated, we reverse the trial court’s order granting the Attorney General’s
       motion to dismiss McFatridge’s mandamus complaint.

¶ 55       Reversed.




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