will deal with the application of the state and then cation act mr rudd will deal with the affirmative defenses raised by the attorney general i think it is a benefit to the court and benefit to our audience as we to consider some of the underlying facts relative to the issue before the court today picture yourself a young lawyer elected the state's attorney of a small county in central illinois in this case edgar county you are entrusted with the prosecution of two men charged with murder double homicide both of those individuals are convicted you continue through your tour of being the elected state's attorney ten years later you go into private practice in almost twenty years half of the initial prosecution you are sued in federal court under section one thousand nine hundred three of federal civil rights  insurance carriers that existed back twenty some years ago and they've all say we're not covering you but we will begin to defend you under reservation of right i need to clarify s nobody has paid his attorney's fees in connection with the underlying civil rights litigation that continues to be true today however there is a decision by judge baker in the central district indicating that at one of the insurance companies does have an obligation to pay and to indemnify that insurance company has that matter up on appeal today so to date they have not met that obligation so going back for almost two years m theory they have analyzed the case and decided that you engaged in willful misconduct and claims that they had some skate from the state paying for your defense so what is mcphee after which left with the death point he's left with either not defending himself in allowing a judgment perhaps to be entered against him which as we'll see later in my argument would have to be paid by the state of illinois or defending himself to the tune of somewhere in excess of a half a million dollars on a complicated civil rights case your honour's that is not an unusual sum of money or what happened in this case you found some dumb lawyer like me to continue to represent him without being paid for two years that's where we are today this case has tremendous importance not only to my quick fast rich but to states attorneys throughout the state think about the act you are an elected state's attorney you do your job and you are then sued in federal court and everybody says you're on your own you defend yourself what every single nine hundred eighty three action that's ever filed has to have an allegation of intentional or willful or a deliberate indifference to to a constitutional right so under the theory being advocated by the attorney general here under no circumstances would they ever defend a state's attorn their representation seems to me hard to believe it is hard to believe judge and first of all i found the position the agent took in connection this case to be in comprehensible to me and since this case has occurred i know of two other counties who position is being taken in this case i do know that in connection with this case in the states attorney six states attorneys association filed an amicus brief in the trial court here in support of our position because of the on states attorneys statewide but justice just a staggering answer your question i don't know of any litigation has ever occurred over this so we're the first what we say at least as far as courts of review go that will be the claiming that that's the second paragraph that is the basis of the attorney general's doing to provide and to provide the cost of your client's representation knows dealing with statutory draftsmanship you don't want to put too much on it but nonetheless they make an argument that take legislation capable referring to former elected state officials when they wish what about the here here's how i handle a situation three fifty slash one says that state employees include four were employees the attorney general acknowledges that qualifies under to be as a state employee because he is a former employee in other words part of their argument is that the former state employee he calls state employee for purposes of the statute can then they argue under to be second paragraph that former elected states a state official doesn't equal president elected state official that argument doesn't flow  because it's inconsistent if you are if a former state employee a state employee is this is covered under three fifty slash one it's the same is a state employee why doesn't that same analysis hold true for the second paragraph but the second paragraph of of section two b and the entire statute is is culture in the terms of present in the present tense in the final part of my argument in the end it makes no sense we're here trying to glean some type of intent out of the statue how about this for a hypothetical i'm an elected state's attorney i'm in office the day before i leave i get sued i get coverage or i leave in a day later i get sued now i don't get coverage because i'm out of the office the clear intent is when were you the elected official at the time you committed the act which is the subject matter of the cause of action that's the only way that statute makes any sense at all or if you are a state's attorney in the state is covering you for a couple of years and then you leave is does the coverage that we're going to have my question  misconduct doesn't even matter because your client is a what the state official exactly all they have language about the attorney general having the ability to decline a defense if they determine  or intentional has no application if you were an elected official you can't graph that language out of the first paragraph of to be and put it into the second paragraph that's tali versus editor which is cited exactly the same  situation and the reason makes sense if i am an elected official i mean answerable to the voters he's straight state employee is not in a mansion a political club that exists if the attorney general had the ability to deny another elected office holder a defense potentially for political reasons that statute evidences the fact that any elected official is going to be treated differently than any other type of state so you think it's and i notice  crooks on the bench convicted and sent off to prison and added a certain sort of judges when convicted of a crime as a result of his or her intentional misconduct and you get enough to know well neither from nobody per i don't i really don't mean any benefit or any guidance in trying to interpret that statute by what the legislature did in connection with judge what the reason i mention it is if you saw the eighty's is a legislature is prepared to throw in something like this look what they did for judges why didn't they throw it in into the second paragraph with to be if they wanted to give the a g the ability to deny an elected official a defense based upon the state same standard as other state officials why didn't they put it in says specifically that buchanan graft language from one paragraph into another there was a reason for that we have to anticipate that there was a reason for that is probably the only case that's remotely on point yes  it's the closest thing it's the closest case i think that we that we have and i think it's you know can you try to distinguish it based upon some type of an artificial argument possibly the a seals the deal when an elected official sued because of some alleged wrongdoing while acting as an elected official the attorney general only has the discretion to refuse payment of defense costs if she finds the elected general here ever challenged either counsel or the reasonableness of please you know your honor they never questioned my representation of mcphee outreach and we never got to the point of fees because they never agreed to pay anything so they were they were reviewing my bills or negotiating a rate or anything like that we never got to that point it was just a flat out refusal to pay a nickel based upon intentional will for what the misconduct claim of the complaint right and i don't know can we  about that in connection with elected officials which we are here or we could talk about in connection state employees in general i don't know what the standard is well let me ask you this i want to ask them that your i have very little experience  hundred eighty three claims but it seems to me and i want to make sure i understood your earlier remarks that in one nine hundred eighty three claims against state employees state officials this is a standard claim it's unnecessary clean if i committed a just merely negligent act that results in a cancer to show a violation of their color state law that's not good enough it is not it must be deliberate and intentional or deliberate indifference to a known constitutional right to substantiate in nine eighty three actions so deliberate indifference as we all know equals willful and wants the same standard so in every nine hundred eighty three action action there is going to be an allegation in the complaint of deliberate indifference which is the equivalent of will whatever that would be i had one in two page seven case that went on for nine years this case has been going on for i believe six years and we are currently in the court of appeals  cops how long would it take them to make i don't know if i could put an accurate estimate at least two years minimum on any so any any decent sized civil rights case is going to take two years and you know  to do you think lisa madigan when she leaves office and she probably gets sued twenty times a year and in various kinds of cases do you think really that she's going to take the position now that i'm no longer in office i'm not entitle to be represented by the state of illinois will charge that i now here you know would you front all of the money for your defense and then at the and if the jury decides that it was with the slope of your employment and that it was not willful and one only then could you rec all of your pov spans which again depending on the severity of the litigation could be in the hundreds of thousands actually in a circle i don't i'm glad sure i think i don't support but i think you may be consuming too much because i read the same se recognize this is an in artfully drafted statute and we could do a heck of a lot better and one of the things that should occur is this thing should be straightened out to some degree because it is somewhat confusing in a more in a moment i'm going to get to another part it's even more confusing incident which really supports my argument but your honor i think if it was in the same paragraph i think that the a g s office their argument might be a little stronger but the where the a g comes to his or her conclusions because this exclusion of a defense because of willful and wanton allegations is not relevant if you are an elected official if you are an elected official this is our position entitled to a defense regardless of what the h e thinks about the allegations against you now let me get to another point this ties into something judge staggered was just really if you get to that point you're going to be encroaching on and lest the jury somehow found that prosecuting criminals was not within the scope of his employment they've got to pay what kind of up of the thought process is a legal analysis is going on if you don't want an individual to have a defense for which you have an indemnification responsibility makes no sense whatsoever and it clearly i think ties back into what the legislature was trying to do here which was the individual elected official must have a defense and then if you loses the state's got to pay thank you very much you know we have some other things  mccaffrey each got a couple of insurance carriers to the founder of thereby saving the state about half a million dollars in the fence cost only after the insurance companies refused to pay did he bring this suit he brought that suit within two months of the insurance companies the client the solution not the pay there's been no prejudice to the attorney general she is currently defending i think by over six state police officers in the same lawsuit she's aware of the suit she's aware of what's going on they case dealt with the calculation of inflation benefits and medicare or medicaid payments we are not in this case claiming back payments from the state this is not a debt collection case this is a forward looking case future which is what we are claiming here so i think all the affirmative defenses raised by the attorney general lack  good afternoon you may have please the court and michael scotto from the office of the illinois attorney general here on behalf of the defendant if i may begin by clarifying a couple of points first of all the attorney general's position is not that you take the pla for it when it comes to whether or not there are allegations of willful and wanton misconduct that is a mischaracterization indeed this very case proves that point as was just represented it is true the attorney general's office who is representing the other state defendants in this case in a much publicized effort the attorney general delves into the merits of this case and concluded made the determination to use the verb that's used in to be made the determination that in this case there was a credible claim thank you your honor to be sure in the first letter the one from barry gross that's in the appendix does refer to the fact that there was no there were allegations made but that was july sixth of two thousand and five and at that point the office had already delved deeply into the case by mr mcphatter for coverage that one makes clear that the attorney general is relying beyond just the allegation in the complaint indeed that the letter cites the fact quotes from the fourth circuit's the fourth district decision rather finding a brady violation in the case and your honor if i may i do i do want to make clear one other thing the extraordinary nature of the statutory interpretation that's being offered here it is not the attorney general's position that we're grafting anything on to anything else on the contrary their position is inside that seven words a seven word phrase that appears at the beginning of to be ought not to apply to elected officials that somehow the second paragraph of to be excised the words or was intentional willful or want to misconduct let me please explain because i think there are aspects of their brief that suggest you can simply skip the first paragraph of two b n in cases of elected officials but their own position is inconsistent with that as is the plain language of the statute  citing to a only that elected officials have to have been acting within the scope of their employment to become heard well it's the first line of to be that explains who that makes that determination and how it's made they've conceded that they can they are out of bounds if they're not acting within the scope of employment a determination that is not always obvious in every case as one can readily imagine that determination is committed to the attorney general and by conceding appropriately that elected officials are subject to that limitation they conceive the beginning of to be applies to them where were they concede to your honor in both page eleven of their brief and also in their filing below they make the point that the attorney i recommend sorry page sixteen of their brief and c one thirty two in the record your honor which is also attended which is their lower court finally they make the point in both instances and again that was represented from the podium today that even as to elected officials they are not covered in the event that they act outside the scope of their employment and they cite to a for that what they're missing of course is that to be provides the explanation of how that determined determination is made it's made by the attorney general and it's explained in the very first part of to be they also overlook the fact that the word employee is used not only in that phrase but throughout the first paragraph in to be an employee is defines to include elected officials in one b so what they've asked this court to do is interpret to the first paragraph only have to be as if the word employee were rewritten to mean non elected or on the left employee and finally if we look at the second sentence of to be it's one that was alluded to earlier in your honour's questions this is the sentence that deals with conflicts of interest the second sentence provides in the should be fairly obvious why it does so that in the case of an attorney general who has an actual or potential conflict of interest so imagine that the attorney general's actually adverse to the state employee who is seeking defense costs under those circumstances not surprisingly to your honor's earlier question the statute provides that you get your own counsel paid for by the state and you don't have to run that council by the attorney general she exercises zero veto power over that lawyer which makes perfect sense if we imagine a circumstance in which she's actually conflicted if you skip all of the first paragraph of to be fo elected officials and rely entirely on the second paragraph they have to run their soul their choice of lawyer by the attorney general even in cases where there's an actual conflict so what are we left with well most of the first sentence has to apply to them by their own reckoning all of the second sentence has to apply to them and so what they're excising is the phrase employed or was intentional willful or wanton misconduct that's the phrase they believe the second paragraph of honor there are instances certainly in which brady among them in which a claim of intentional misconduct will be in play but that is true for all sorts of civil civil rights claims to all employees and the fact that i  here that this statute applies to all prosecutors and prosecutors are routinely defended by the state even notwithstanding those allegations i don't have to say this is the response of the court where the second part of the question is yes that may be an allegation but as i said at the outset the attorney general has to make a determination and the routine determination would be to defend somebody but in a case where that determination comes out differently she won't defend it now the statute has a back up for this by the way the statute back up is later in the first paragraph of to be and that's the provision that if the attorney general's initial determination is incorrect and you are vindicated at the end of the day you not only receive indemnification for the full judgment but you're also entitled to payment of all  as they are incurred exactly left that phrase out of your brief well your honor that phrase is perfectly consistent with the other is that how is as the are incurred consistent with if you win at the end when the jury decides that there was nothing intentional then will reimburse you short your honor that how it is how do you pay it as it's going on and still do that you're out of the phrase you fred is at the end of the sentence that covers instances in which the attorney general has a conflict it's actually the next sentence that says  it's not the earlier sentence makes clear that in the event of a conflict she can either decline or withdraw this is referring if you look a little further refers to what's what modifies that phrase is in the on the basis of a potential conflict of interest the very next sentence begins with in the event that the a g declines to appear withdraws and then under the two disqualifying factors namely that it was outside the scope of your employment or because there was intentional misconduct and that person that initially explains the withdrawal by the attorney general the first part of the clause before the word or doesn't talk about anything about conflict just as a primary seat of such declaration which could be based upon the willful misconduct i understand there's a supposed to be paid as they are incurred how does it figure with the attorney general's theory that ok you win the case reimburse you then that very next sentence is what says if you win the case i'll read it in such event the states will also pay the employees court costs phrase on the basis of an actual or potential conflict modifies everything that comes before it it's the only way to make sense of the statute it follows upon the announcement that sometimes the age is going to have a conflict the very next sentence deals with the remaining two options under the first paragraph of to be and to plaintiff's point about two d here's where he's confused on what to deem means it's to be that includes language for indemnification in a case like this where the attorney general declines representation at the outset that provision goes on to say with that final sentence in the first paragraph in such event the state shall pay the attorneys for these court costs and all the defense cos it makes good sense that the attorney general was wrong made an initial terminations now you've been vindicated everything comes back the reason we know two d to which council referred doesn't apply in cases where the attorney general has initially declined representation there are two ways to know that one is it doesn't include the mill case in which the attorney general is either paid for your representation or has represented you personally and therefore there is no need to include any reference into deeds to the back payment of your defense costs the way that it appears in the first paragraph of to be  haven't seen one in a long time how does it sure vary really what the legislature want it is your honor and let me provide a couple of answers to your question first is we all agree that is true for the run of state employees whether it's good policy or not and state employees are sued and the rule you just announced is the rule that applies to everyone the only question here is is there something special about in their view not just current but former elected state officials that makes th difference but let me proceed beyond that there has to be a choice made and there are really two options here one is you pay the money upfront and here's how the statute works it turning general finds that there's not a credible claim here of willfulness so you defense costs are being paid up front if at the end of the day it is concluded that you acted willfully or that you acted outside the scope of your employment the state doesn't have to indemnify you to be sure but they do you think can't get the defense costs back so what have they done in contravention of public policy you illinois supreme court's decision and right they have paid the defense costs of someone but let's imagine a hypothetical everyone can look to and say there was just malicious misconduct here the alternative is the false negative in your honour's write it  exists it is possible that the attorney general will conclude that you the state if it is a elected state's attorney is acting willfully acted maliciously after undertaking her own due diligence we we see civil cases all you're out of the general assembly this is a very tough spot the general assembly faced a situation in which in one nine hundred seventy seven they wanted to create some form of indemnification for public employees now they face a choice you're right you don't know the ultimate answer just as a court may not  t r o stage know the ultimate answer of what the merits determination will be at the end of the day that they entrusted a state official who's responsible to the electorate here the attorney general with making this threshold determination the alternative and again i have to turn to the alternative the alternative is to defy public policy and to have cases out there in which individuals will have been paid perhaps for many years without recoupable in with you or who will saw from the public fests to defend against an action in cases where anyone who looked at it again to take an example because we have to consider the extreme example anyone would have realised that at the end of the day this person was not acting in a lawful we have to disregard  agree with your position not at all you're totally is on all fours with our position there's absolutely no contradiction that the second paragraph of the two is a stand alone provision and different from the earlier one that's not your position  as you just said it's not your honor but let me let me be clear what he said was there's language in the end of two way that has to do with whether or not private attorneys retained either because of a conflict and this is critical because the tele court launched these two situations together opted to have a private lawyer in cases where the attorney general has found that there's a need to defend that issue was not before the court what they said is given professional norms that govern the operation of the attorney client relations it would be reasonable to say that that language about the attorney general directing that a geisha at the bottom of one a doesn't apply just because the state is paying the attorney's fees so even if probably were correctly decided there's nothing about it all it employees how many elected state officials are very few by comparison and the scene i think we can come up with this definitive number can't we i mean just talking about here the six are prosecutors we got one hundred two of them the state of illinois and six executive people and that's it so we're talking about elected state officials it seems to me that the legislature used to have a category where the legislature said you know we don't want these people who are exercising the powers of the state going after bad guys to worry about getting sued  so and there might also i remember in one nine hundred seventy seven we still had our litigation for sport coming out of sleep but i've decided we don't care what the allegations than there are elected prosecutors is nothing but that are elected state officials would be the concern but oftentimes it's the lower level who are sued if you're concerned about prosecutorial discretion this would have been the worst way to go about defending they would have made it over inclusive by protecting all members of the general assembly and far drastically under including by omitting all non elected prosecutors and the other reason that i would say is even if we disagreed with this policy choice there's simply nothing here and i'm aware of no precedent to suggest that this second paragraph that doesn't begin with any sort of notwithstanding or any other qualifier can only can be used to surgically remove a mere seven words from the preceding paragraph i don't  they're not a there's been no authority cited i'm aware of no authority that would permit that kind of surgical revision to the first paragraph of to be by defining the scope of the authority to do the state's duty to defend as the paragraph proceeds it places limitations not on the scope of that duty but who will perform the duty so for example it first hits instances of attorney general conflict of interest well the duty to defend exists but who does it change is understandably under those circumstances the paragraph the second paragraph at the risk of a long winded answer i apologize the second the second paragraph goes directly to the second question not to the duty not to the scope of the duty that's all been covered earlier and i said they concede there are limits on the scope even as to elected officials and to be makes clear the attorney general makes that determination what's left who does it and there's a special rule for elected officials that not in terms of the scope of the state's duty but who do they get to choose that is what's affected by that second paragraph and unlike any other on the elected official were to be the first paragraph again deals both with scope and who defends and as we've already discussed there can't be any objection to the fact that the second sentence of to be applies equally to an elected officials if it didn't they'd be in the absurd position of having to have the attorney general approve their choice of lawyer even in cases where she has an actual conflict of interest so we know the second sentence of the first paragraph of to be applies directly to electing an elected officials we know the general assembly use the word employee out to be we can't change that to say an elected employee when it's clearly defined just a couple of paragraphs earlier to include all employees need to conclude thank you your honor in conclusion what they asked the court to do is radical surgery not grafting as we have if they had suggested but rather to a wide seven words from to the first paragraph without authority to do so and i would finally conclude by saying in the event th court were to disagree on that point we would simply stand in our brief for the proposition that the word is is indeed a present tense for and in light of the definition of employee in one of the was intended to limit the individuals who could take advantage of it give a reason your honor it said that it's not theirs they haven't made the showing required for mandamus relief but i will say the suggestion that's made in the brief that the court may have been under the misimpression that if there is debate over what a statute means mandamus is inappropriate but that cannot be the case we never argued that below and if you look at pages eighty nine to ninety three of the appendix you'll see our subset of argument and nowhere did the state contend that was the case thank you your own  comments i fully intended today not to get into the white issue here why is the attorney general doing what she's doing council raised its fundraising spunk bunch of hogwash there was some kind of intensive investigation done of this case in eternity general his staff through depositions or knows all about the facts of the case that's just simply not true and simple terms this was a political decision it was made here nothing more is not reviewable even if you're right no no but i'm just telling you what was just represented to the court about some extensive review to see misconduct and they found this brady violation because it was mentioned in a key in a case involving mr as we all know brady violations do not have to be intentional to be actionable they can be inadvertent i was accused of a grady violation back when i was first a prosecutor because i didn't know any better so under federal civil rights law are current the time of trial and all of those acts of a prosecutor trial are covered by absolute immunity so the decision if it was based upon a brady file ation not the defendant theatrical has nothing to do with the civil rights case so that's nothing but a red herring which you just heard from counsel is a bunch of dancing around trying to make this case a lot more complicated than he actually tully was very clear tali talked about the fact official sued because of some alleged wrongdoing while acting as an elected official the attorney general only has the discretion to refuse payment for defense costs if he or she finds the elected officials choice of counsel and satisfactory or th the fence charges are unreasonable we don't have to make this determination our reading of the second paragraph of to be any more complicated than they are the concept that somehow we have interpreted portion of the first paragraph into the second paragraph that's without support in the record the only statement we have ever made is that too with a sense that it must be within the scope of official duties we are not suggesting  incorporation of the first paragraph of to be into the reading of the second let me ask you to address this was a comment with regard to the policy issue you attorney sued and the assistance and certain parties are agreeing to cover the state's attorney but not the system it is a huge problem but the solution the solution is the counties now are getting writers into their insurance coverage it says that it covers county legislators in turn to protect prosecutors who are elected do we have to conclude that that's a difference from prosecutors who are just the line troops so to speak because as you suggested here maybe there would be elected prosecutors by definition of gone through the political process and maybe that would make them more vulnerable to the attorney general than just some typical line troops in they're going to get sued in every case that the  sue they're going to sue the state attorney for lack of control discipline training etc so i suppose the you know if the legislature really thought about this they would have covered the assistant state's attorneys as well do i think that they really gave thought to the ramifications this could have on the on the line troops probably not but it is a you know i think an argument can also be thrashing that there were other sources of down the nation for the for the line assistance as well judge it is a huge issue and it's one that needs to be decided and i would hope that this court would do would do what i know you always do which is a well reasoned decision which in this case would be in our favor and the attorney general would look at it and say you know what i think we've had enough of this let's move forward frankly i don't know why we're here i don't know why they're doing what they're doing in this case because it makes no sense to me if mcphatter each walked in and said you know what i'm sick of or i should  say if i told mcphatter i don't want to represent you free anymore hoping this thing gets worked out and you're on your own and he let a judgment be entered against him they have to pay so i don't get this i don't get why they're taking the position they are because it makes no sense to the people of illinois this is the case with the defense are asking for forty million dollars so this isn't chump change the court finds that the conduct which gave rise to the claim was intentional will form one and that it was not intended to serve or benefit the interests of the state if it is judge i mean it would but all i can tell you is that under two d they're talking a part body two prong test you know was there in fact intentional misconduct it's it's theoretically possible but under the circumstances of his case virtually impossible for a jury to conclude that when you're prosecuting murderers or people accused of murder in a court room that you are not intending to serve or benefit the state of illinois so that would be a jury question that would be answer know you could make that argument but there's a pretty persuasive argument that when you're prosecuting a case and you are serving the interest of the state of illinois again i really under the i'm influenced in answering your questions because you know all of the facts and circumstances of this case and that argument would not be a viable one this case well thank you very much judge nice thank you