In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1569

Margaret M. Carver and Randall S. Carmean,

Plaintiffs-Appellants,

v.

Sheriff of LaSalle County, Illinois,

Defendant,

and

LaSalle County, Illinois,

Appellee.



Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 94 C 2240--Charles R. Norgle, Sr., Judge.


Argued November 9, 2000 Decided March 15, 2001




  Before Fairchild, Easterbrook, and Manion,
Circuit Judges.

  Easterbrook, Circuit Judge. When Anthony
Condie was Sheriff of LaSalle County,
Illinois, two of his employees filed suit
under 42 U.S.C. sec.1983 and Title VII of
the Civil Rights Act of 1964. Plaintiffs
contended that Sheriff Condie perpetrated
sex discrimination and other wrongs.
Litigation against sheriffs in Illinois
must take account of the fact that,
although each county’s sheriff is an
elected official, the sheriff’s budget
(and thus the source of funds for paying
a judgment) depends on the county board
(the county’s legislative branch).
Plaintiffs therefore named LaSalle County
as an additional defendant. But the
County sought and procured its dismissal,
persuading the district judge that it
could not control, and thus should not be
responsible for, Sheriff Condie’s
activities. See Thompson v. Duke, 882
F.2d 1180 (7th Cir. 1989) (a sheriff is
not a county’s policymaker in Illinois,
so a county may not be held liable under
sec.1983 for a sheriff’s misconduct,
given Monell v. Department of Social
Services, 436 U.S. 658 (1978)). With the
County gone, Sheriff Condie settled the
case for a promise to pay plaintiffs
$500,000, and the district court used
this promise as the basis for a money
judgment. Ever since, plaintiffs have
been trying without success to collect.

  Condie is not personally liable on this
judgment. The sec.1983 suit was against
him in his official capacity (which is to
say, against the office, see Will v.
Michigan Department of State Police, 491
U.S. 58 (1989)), and the Title VII claim
necessarily was an official-capacity
action because only an "employer" is
covered by that statute. We held in
Williams v. Banning, 72 F.3d 552 (7th
Cir. 1995), that even a supervisor is not
a proper defendant in Title VII; the suit
must proceed against the employer as an
entity rather than against a natural
person. Thus the Title VII claim
necessarily was an official-capacity
suit. Cf. Walker v. Snyder, 213 F.3d 344
(7th Cir. 2000). Because Condie is no
longer the sheriff, we have recaptioned
the case. But plaintiffs, holding a
judgment against the Sheriff’s Office,
have a problem: The Sheriff’s Office
lacks funds and does not have the power
to tax. This led the plaintiffs to
commence proceedings under Fed. R. Civ.
P. 69 against the County, asserting that
it either is required to indemnify the
Sheriff’s Office or is directly liable.
Either way, the judgment would be paid
from the County’s bank accounts. The
district court initially dismissed this
proceeding, but we reversed, holding that
it is a proper invocation of Rule 69.
Carver v. Condie, 169 F.3d 469 (7th Cir.
1999). On remand, the district court
dismissed a second time, concluding that
the County is not responsible for
payment. 2000 U.S. Dist. Lexis 1751 (N.D.
Ill. Feb. 10, 2000).

  Our case is just one instance of a
recurring question: Who pays official-
capacity judgments in Illinois when the
wrongdoer is an independently-elected
officer? Sheriffs, treasurers, clerks of
court, and several other officers within
Illinois counties are elected directly by
the people and establish their own
policies, but they lack authority to levy
taxes or establish their own budgets.
This leads the independently-elected
officers to contend that the counties
must pay; but the counties, which are
unable to control the conduct of the
officers, insist that they cannot be held
liable because an official-capacity
judgment runs against the office and not
against an "employee" of the county. The
law of Illinois does not provide a clean
solution to this conflict, in which each
insists that the other must pay.

  Let us start with the possibility that
federal law requires the county to pay.
Plaintiffs insist that this is so, but no
free-standing rule of federal law
requires any particular state or local
entity to pay a judgment. Neither
sec.1983 nor Title VII provides which
state actor is responsible for paying a
given judgment or how the money will be
raised; neither statute authorizes
sheriffs to write checks on county
treasuries, if state law denies sheriffs
that power. If, as the County insists,
Sheriff Condie overstepped his authority
by agreeing to pay $500,000, then the
settlement must be set aside and the
litigation resume, for a person
purporting to settle a federal suit needs
actual authority to do so. United States
v. LaCroix, 166 F.3d 921 (7th Cir. 1999);
Morgan v. South Bend School Corp., 797
F.2d 471 (7th Cir. 1986). Federal law
does not empower a state officer to
"agree" with plaintiffs, in violation of
state law, to shift financial
responsibility to an innocent unit of
government. See Dunn v. Carey, 808 F.2d
555 (7th Cir. 1986).
  Identification of an "employer" under
Title VII is a question of federal law.
See Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742, 754-55 (1998). But
the source of funds need not coincide
with the identity of the employer.
Congress enacts budgets for the Bureau of
Prisons and the Marshal Service (the
federal bodies closest to the functions
of a sheriff in Illinois), just as a
county controls a sheriff’s budget, but
financial control does not make Congress
the "employer" of a prison guard or a
marshal for purposes of Title VII.
Likewise a firm that uses an independent
contractor often controls the
contractor’s purse strings, but the
entity that supplies the funds is not
automatically the relevant employer under
Title VII. If the independent contractor
adheres to corporate formalities when
dealing with its own staff, it is a
separate "employer," and the "deep
pocket" is not liable for the independent
contractor’s wrongs (or the reverse). See
Vakharia v. Swedish Covenant Hospital,
190 F.3d 799 (7th Cir. 1999); Papa v.
Katy Industries, Inc., 166 F.3d 937 (7th
Cir. 1999); Sharpe v. Jefferson
Distributing Co., 148 F.3d 676 (7th Cir.
1998); Ost v. West Suburban Travelers
Limousines, Inc., 88 F.3d 435 (7th Cir.
1996). Plaintiffs do not doubt that the
Sheriff’s Office and LaSalle County have
adhered to the formalities that make them
separate entities, and thus separate
"employers" for purposes of Title VII.
Thus the questions "who pays, and from
what kitty?" must find their answers in
Illinois law.

  Plaintiffs contend that 745 ILCS 10/9-
102 supplies the answers. This portion of
the state’s Tort Immunity Act provides:

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. All other provisions of this
Article, including but not limited to the
payment of judgments and settlements in
installments, the issuance of bonds, the
maintenance of rates and charges, and the
levy of taxes shall be equally applicable
to judgments or settlements relating to
both a local public entity or an employee
and those undertakings assumed by a local
public entity in intergovernmental joint
self-insurance contracts. 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 first sentence of sec.10/9-102
requires a "local public entity" to pay a
"tort judgment or settlement for
compensatory damages" for which "it" or
"an employee acting within the scope of
his employment" is liable. A county is a
"local public entity," and we may assume
that Illinois would treat both sec.1983
and Title VII as establishing "torts" for
purposes of sec.10/9-102. (The Supreme
Court of Illinois made the same
assumption in Yang v. Chicago, 2001 Ill.
Lexis 191 (Feb. 16, 2001).) An individual-
capacity suit against a sheriff would be
one against an "employee"--though Moy v.
Cook County, 159 Ill. 519, 542, 640
N.E.2d 926, 931 (1994), holds that for
some other purposes it is improper to
call the sheriff a county’s employee,
given the sheriff’s status as an
independently-elected officer who can’t
be hired or fired by a county. More to
the point, an official-capacity suit such
as ours is against a sheriff’s office,
not against any "employee," and for this
purpose the sheriff’s office itself seems
to be the "local public entity." Then
sec.10/9-102 tells the Sheriff’s Office
that it "is empowered and directed to
pay" the judgment--but it does not make
any funds available to fulfil this
command. Because a sheriff’s office
cannot be deemed an "employee" of a
county, and because a sheriff’s office is
not itself a county, plaintiffs’ reliance
on the first sentence is problematic.
  Perhaps the last sentence of sec.10/9-
102--which says that a "local public
entity" must pay a settlement 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"--has more to
offer. If the only "entity" to which this
sentence refers is the Sheriff’s Office,
then it adds nothing. But it might be
possible to treat a county as the
"entity" to which this sentence refers,
and to say that a sheriff is the person
"with authority to make over-all policy
decisions for such entity" because no one
else in a county appears to have any
authority to compromise litigation filed
against a sheriff’s office. Driving this
reading would be the assumption that
Illinois law permits someone to hold both
the settlement power and the purse
strings for official-capacity suits
against sheriffs; and the only visible
person is the sheriff. Yet this reading
would take considerable liberty with the
statutory language, for the sentence
points to "the governing body or person
vested by law or ordinance with authority
to make over-all policy decisions for
such entity". A sheriff has the authority
to make "over-all policy decisions" for
his own office, but only the county board
has that power for the county as an
"entity." See 55 ILCS 5/6-1001. Perhaps,
then, the last sentence of sec.10/9-102
implies that in an official-capacity
action against a sheriff’s office, only
county officials may compromise the
litigation--even though a county is
neither the "employer" for purposes of
Title VII nor the party responsible under
sec.1983. Such a division of
responsibility from control of litigation
is possible--for example, the Attorney
General controls all suits against all
federal agencies under Title VII, and
Congress supplies the funding for
disbursal after certification by the
Secretary of the Treasury. Federal
statutes make this allocation of
authority a good deal clearer than does
sec.10/9-102, however. See 28 U.S.C.
sec.sec.516, 2414.
  Next consider 55 ILCS 5/5-1002, the
statute on which plaintiffs principally
rely. Unlike sec.10/9-102, this deals
directly with sheriffs and their
anomalous position in the state’s
organization chart:

If any injury to the person or property
of another is caused by a sheriff or any
deputy sheriff, while the sheriff or
deputy is engaged in the performance of
his or her duties as such, and without
the contributory negligence of the
injured person or the owner of the
injured property, or the agent or servant
of the injured person or owner, the
county shall indemnify the sheriff or
deputy, as the case may be, for any
judgment recovered against him or her as
the result of that injury, except where
the injury results from the wilful
misconduct of the sheriff or deputy, as
the case may be, to the extent of not to
exceed $500,000, including costs of
action. Any sheriff or deputy, as the
case may be, or any person who, at the
time of performing such an act complained
of, was a sheriff or deputy sheriff, who
is made a party defendant to any such
action shall, within 10 days of service
of process upon him or her, notify the
county, of the fact that the action has
been instituted, and that he or she has
been made a party defendant to the
action. The notice must be in writing,
and be filed in the office of the State’s
Attorney and also in the office of the
county clerk, either by himself or
herself, his or her agent or attorney.
The notice shall state in substance, that
the sheriff or deputy sheriff, as the
case may be, (naming him or her), has
been served with process and made a party
defendant to an action wherein it is
claimed that a person has suffered injury
to his or her person or property caused
by that sheriff or deputy sheriff stating
the title and number of the case; the
Court wherein the action is pending; and
the date the sheriff or deputy sheriff
was served with process in the action,
and made a party defendant thereto. The
county which is or may be liable to
indemnify the sheriff or deputy sheriff,
as the case may be, may intervene in the
action against the sheriff or deputy
sheriff, as the case may be, and shall be
permitted to appear and defend. The duty
of the county to indemnify any sheriff or
deputy sheriff for any judgment recovered
against him or her is conditioned upon
receiving notice of the filing of any
such action in the manner and form
hereinabove described.

Under this law the county is responsible
for payment when a sheriff or deputy
sheriff is held liable for wrongs that
are not attributable to "wilful
misconduct." A sheriff or deputy who
wants to shift financial responsibility
in this way, however, must notify the
county and allow it to take over the
defense (just as an insurer may control
the defense when it may be obliged to
indemnify the defendant). LaSalle County
points out that Sheriff Condie did not
give the required notice, and as the
statute makes this notice a sine qua non
(just as insureds must notify their
carriers) our plaintiffs are out of luck.
It is troubling that Illinois would allow
the rights of the victims to be undercut
so easily by the (further) neglect of the
wrongdoer. Worse from plaintiffs’
perspective, sec.5/5-1002 deals with
personal-capacity judgments: "the county
shall indemnify the sheriff or deputy, as
the case may be". It does not deal in so
many words with official-capacity suits
in which a sheriff’s office (the
"employer" under Title VII) is
responsible. And sec.5/5-1002 is a poor
match for Title VII for yet another
reason: it excludes "wilful misconduct,"
while all violations of Title VII require
discriminatory intent, a form of wilful
misconduct. See Kolstad v. American
Dental Association, 527 U.S. 526 (1999).
So sec.5/5-1002 does not provide a silver
bullet here.

  Plaintiffs served on LaSalle County a
citation to discover assets, seeking to
learn whether appropriated but unexpended
funds were available to the Sheriff’s
Office. Their theory is that these funds
may be diverted to pay the judgment. The
district court dismissed the enforcement
proceeding without explaining what, if
anything, is wrong with this means of
collection. The parties’ briefs in this
court are no more informative. Plaintiffs
say that the entire budget of the
Sheriff’s Office is available to satisfy
the judgment, but they do not discuss the
possibility that LaSalle County (like
Congress) appropriates funds with line-
item restrictions. That the Sheriff’s
Office has a budget of, say, $2 million
per year does not mean that the sheriff
can spend the money on anything he likes;
some of the funds may be restricted to
the payment of salaries, and so on.
LaSalle County has ignored this subject
altogether, so we have no idea what funds
are available to the Sheriff’s Office and
what restrictions, if any, have been
placed on their use. Nor can we tell
whether Illinois law allows counties to
impose line-item restrictions that
prevent sheriffs from paying judgments
from appropriated funds.

  Restrictions on expenditures would not
preclude enforcement of the judgment by
seizing assets later; if LaSalle County
appropriates $200,000 to purchase
vehicles for the sheriff and his
deputies, plaintiffs could swoop in and
seize the cars as soon as they are
delivered, selling them to generate
funds. But can this really be the only
means Illinois law provides for paying
official-capacity judgments, when the
county is unwilling to cooperate in the
process? It seems unlikely that Illinois
would find a sequence of purchases,
seizures, and sales, dragging out over
several years and leaving sheriff’s
personnel without cars, desks, computers,
and guns in the interim, to be the
optimal means of satisfying judgments.

  LaSalle County urges on us the theory
that a sheriff in Illinois is utterly
unable to settle litigation. This can’t
be right as stated; surely a county could
appropriate a judgment fund (as Congress
has done) and make it available to pay
judgments (including settlements); and
like Congress a county doubtless could
set conditions under which settlement
authority would be exercised. What
LaSalle County must mean, therefore, is
that it has neither established a fund
for the payment of judgments nor enacted
general legislation specifying the
conditions under which particular
officers may settle litigation. At oral
argument counsel for LaSalle County
analogized Sheriff Carver’s settlement to
a decision to purchase a costly piece of
equipment--and we know from Pucinski v.
Cook County, 192 Ill. 2d 540, 737 N.E.2d
225 (2000), that independently elected
county officers can’t bypass the county
board’s fiscal authority by making
contracts for the purchase of equipment.
(Pucinski involved a portion of the
state’s Counties Code that is limited to
Cook County, but plaintiffs have not
identified any provision of state law
that would lead to a different resolution
in LaSalle County.)

  By analogy to Pucinski, all an
independently-elected county officer may
do when settling litigation is recommend
to the county board that funds be
appropriated (with a legal commitment,
per the judgment, to expend them for
plaintiffs’ benefit if appropriations
ensue). Similarly, a member of the
federal cabinet, unable to promise that
Congress will appropriate funds, may
promise as part of a consent decree to
use best efforts to secure money (and to
exercise all available discretion under
existing appropriations) and may be
penalized by the court for failing to
carry through. See United States v.
Chicago Board of Education, 799 F.2d 281
(7th Cir. 1986). If this is the right way
to understand Sheriff Condie’s promise,
however, then the Sheriff’s Office is out
of compliance, for it is doing nothing to
obtain funds to pay the judgment. Then
the plaintiffs’ entitlement would be, not
immediate payment, but an order
compelling the incumbent sheriff to get a
move on finding the necessary funds (or,
at plaintiffs’ option, to an order
vacating the settlement and placing the
case back on the docket for decision on
the merits). It is tempting to say that,
because the Sheriff’s promise formed the
basis of a federal judgment, we could
resolve its meaning and effect as a
matter of federal law; but the district
court put into the judgment no more than
Sheriff Condie had the authority to
promise, and the extent of that authority
is a matter of state law. This makes our
task of interpretation especially
difficult.

  Suppose that an order requiring a
sheriff to seek funding from a county is
the only possible enforcement tool after
a sheriff settles official-capacity
litigation. That has an unsettling
implication for cases that are not
settled, for it implies that no money
judgment against a sheriff’s office is
enforceable in Illinois. The alternative
to settlement is a decision by the court,
and LaSalle County’s argument that it has
plenary power not to appropriate funds to
pay judgments implies that it could
refuse to pay--and deny plaintiffs any
means of collecting--even if this case
had been litigated to the hilt rather
than settled. That would put Illinois out
of compliance with federal law--for
Fitzpatrick v. Bitzer, 427 U.S. 445
(1976), holds that Title VII is binding
on the states, and may be enforced in
federal court, by virtue of national
power under sec.5 of the fourteenth
amendment. A state may not evade
compliance by modeling its internal
organization after a huckster’s shell
game, so that no matter which entity the
plaintiff sues, the state (or its
subdivisions) always may reply that
someone else is responsible--and that
power has been divided in such a fashion
that the responsible person can’t pay,
and the entity that can pay isn’t
responsible for doing so. We are
confident that the State of Illinois
would not do such a thing, and that its
statutes and other institutional
arrangements leave some means of
producing an enforceable judgment. But
LaSalle County says otherwise, that it is
never obliged to pay an official-capacity
judgment growing out of a sheriff’s
wrongdoing, and our tour through state
law has not produced a clear answer to
the County’s argument.

  Under these circumstances it is best, we
believe, to ask the Supreme Court of
Illinois to tell us when and how a county
must pay an official-capacity judgment
entered against a sheriff. None of the
options we have canvassed yields a ready
answer, and there may be additional
possibilities that, lacking expertise in
Illinois law, we have overlooked. We
could guess or improvise, but the
question is bound to recur, and only the
state courts can supply an authoritative
answer. Resolution by the Supreme Court
of Illinois would be far superior to
federal court’s effort to fix the
relations between sheriffs and counties
under state law; and the Supreme Court of
Illinois has the authority, which we
lack, to interpret state law so as to
ensure compliance with the state’s
obligations under Fitzpatrick. In another
recent case, Yang v. Chicago, 198 F.3d
630 (7th Cir. 1999), we certified to the
Supreme Court of Illinois another
unsettled question under the Tort
Immunity Act--a question that, like the
one presented here, seems to arise often
in federal cases but rarely in state
cases, and that therefore has eluded
resolution by the state courts--and the
Supreme Court of Illinois accepted the
certification and provided a clear
answer. See Yang v. Chicago, 2001 Ill.
Lexis 191 (Feb. 16, 2001). Certification
of the further issues raised by this case
will present that court with several of
the difficulties that remain after its
very helpful decision in Yang and
continue the spirit of cooperative
federalism evinced in that case.

  Circuit Rule 52 provides that "when the
rules of the highest court of a state
provide for certification to that court
by a federal court of questions arising
under the laws of that state which will
control the outcome of a case pending in
the federal court, this court, sua sponte
or on motion of a party, may certify such
a question to the state court in
accordance with the rules of that court,
and may stay the case in this court to
await the state court’s decision of the
question certified." Certification to the
Supreme Court of Illinois is proper when
"there are involved in any proceeding
before [the Seventh Circuit] questions as
to the law of this State, which may be
determinative of the said cause, and
there are no controlling precedents in
the decisions of this court". Ill. Sup.
Ct. R. 20. We therefore respectfully ask
the Supreme Court of Illinois to answer
the question whether, and if so when,
Illinois law requires counties to pay
judgments entered against a sheriff’s
office in an official capacity. If that
court believes that the answer depends on
whether the case was settled as opposed
to litigated, we would welcome treatment
of that distinction as well.

  The Clerk of this Court will transmit
the briefs and appendices in this case,
together with this opinion, to the
Supreme Court of Illinois. On the request
of that Court, the Clerk will transmit
all or any part of the record as that
Court so desires.
