fundamentally unfair this court's decide this case anything other than the issue of subject matter jurisdiction that lot of other issues that are raised by the state i think those are matters of the trial cour statutory scheme here that before the state can get tidying up the indemnity they have a voice because first of all we are told that they represent the defendant in normal circumstances then the told that where there is a conflict of interest they must withdraw such as in this case where there's a conflict between of whether it was a negligent act that caused the injury or whether was a will agrees to it but there's the other part of the cause which says that after there is a judicial determination as to whether it falls within the scope of the employment  otherwise qualifies that the state would be bound by that but it really doesn't contemplate this statute as it's written only contemplate a circumstance such as occurred in this circuit in this case where there was first to withdraw and then presumably there was a decision made or maybe using harvey cox as old saying not to decide is to decide though when he came in to represent the  of intentional or a negligent act and the state was notified as they would be in the settlement situation and given the chance to come in before the judgment was entered becoming they filed a demographic ation if they have a form for addressing their view before the court makes a determination addressing their view that it was willful and wanton and wasn't that could the state under the pastor of these other statutes that can require the state to withdraw our thanks as well for one because of a conflict of interest presumably could the state have think and that would probably go to the court of claims  the situation we're trying to reach directly into the state treasury and wouldn't they have the right and to to sake at that point the party really being sued the party of interest is the state of illinois hands on how you take on how you posture your claim for really if you would posture your claim for relief as a direct action for have exclusive jurisdiction and once the court of claims has exclusive jurisdiction a cap is automatically asserted against the recovery of a hundred thousand dollars otherwise because of a court of claims  have a right to pay out more than either one hundred or i'm not sure exactly how so that would be the result if the action were direct on the other hand the action does not have to be direct since compel the officer who of the other state employee who controls the purse strings so to speak in this case to there's no no variation and a case like this one we have liquidated them off it is just a simple ministerial act see so let me ask you this supposing you w is there another stage during which the government so to speak whatever that is the body politic could refuse to u words if mistake let's say you have a statute that's clear on it's ok but up nonetheless the state if you are trying to collect against the state you wouldn't have the option to single out the individual you would have to sue the state and if you sue the state trying to reach money in their treasury you would be directed really eliminate a number of the issues that would have been raised or that you would seek to argue here that about the propriety of of the method of determination of what the content of the judgment contains i think you ought to play fast when you identify that there's really a glitch in the statute here well could you not have asked this and don't you really have a stake at the time it becomes clear that there is no attorney coming in on behalf of the euro ploy me and that you may be having your don't that may be and there was a motion to intervene i think it's important to keep in mind that that could have been but that's not presented earlier that's not before us now that is before you but what we do anymore you know what happened we know it's not before you now but i would like to point out since we're discussing those proceedings and there's been some characterization of them that we don't agree with the characterization we don't know that there was procedure other than perhaps some of the side with regard to v motion to intervene although that's not even a challenge we have no no no basis to assume any kind of activity being him forced is not clearly mandated so that there may be an exercise of the special involved is that right i don't mean interrogated like i away from your interest so you may not want to agree but up but at any rate if you do agree then a bit then the question is where did you get the uncertainty employment and therefore did not warrant the certification that's what you said so because of that initial challenge you not say it is no longer a i think it's come out a bit in the questioning so far which is you know the way you can look at this is and this is how the circuit was looking at this is you can call this sort of occasion of the judging for payment against a state employee but you have to look at what that essential nature is so let's do that we look at what that essential nature is this is this is the quintessential claim against the state for money it's like a debt collection pay in money judgment so those all of us covered many cases you know even though there are discussions of mandamus and so on a principle that follows through the cases substance over form and the substance here is this is collecting the justice so you don't agree with my initial promise stop which is that when it's a mandamus action the supreme court has spoken so as to deny the suffering immunity defense that's what you're attacking i didn't get that out of someone ordering somebody to do something in the future ok and that that somehow is no longer a subject to sovereign immunity they al act according to his duty rather than focusing on the fact that in doing so he will be subjecting the those the state to a payout that you cannot use the omission was not within the scope of employment or was intentional will for want misconduct and i quote skipping words fines if the act or omission of the state employee was within the scope of the certification procedure comes in a different section and that is there is a procedure for payment from a designated fund i'd like to talk about that more could be idea here is yes it says the the certification is not something spoken of in big it simply says the state shall pay but it doesn't say that that would be employee must certified so official form would go as an excellent tr v the reason the distinction here is that the certification procedure is very specific it's not something you can use in all circumstances as i say you could have these indemnification rights but not be able to use this procedure and if you look at the procedure and which is in section b there are there are limits that the general assembly's placed on it and there is no duty to act outside there's no  he is going to be implemented without the activity of the stay officials mandated in ordinary judgments to certify the judgment how pow otherwise payment will result under d well then you're in the position that a person is in the position they can't use the certification for c well what are they going to do when they are in the position of they have a claim for money against the state and the traditional venue for that is from certifying this judgement when there is a reversal by the court of the original evaluation made by the jury and just in their situation here under to be where  court makes the determination which is specifically it specially set out to be if that's game set match all that needs to be done is somebody has to write the check and isn't this in hand or a situation where the state missed the boat when to a paros those factors that would trigger the indemnification had to come in either before the judgement or have they appealed the the denial of the motion to intervene there would be a forum for knocking out the underpinnings of to be required the certification and having failed to do so in were appropriate manner is there anything left that gives any discretion under the under the sun to the person who they're trying to add get control into this mandam yes because the circulation procedure is only available in limited circumstances one of those circumstances is that you have to read the whole you're in the wrong front then there is the availability of a separate mandamus action against whomever you think is the right entity to write that check but how does that in any way give any discretion to the act or on the part of the state to to pay that judgment is the whole essence of this really is you're implying here that somebody would have the right to challenge the factual determination made at the time the judgment was entered that would trigger the event of the responsibility of the state argument because there is no the attorney general can't use the certification procedure here because of the cap and for an additional reason that a like to explain so in stating this is just to make a state official perform their duty there is no statutory duty because certification is this limited procedure that is only available the legislature has only provided for its use in the certain circumstances you can have indem over to this other statute the here's the fun we're talking about is there anything else the real point here is stubborn unity and what the court did is look at court was looking out of this this is the whole nature of the action and i think there is another issue here that informs sovereign immunity it would also be relevant to considering whether the statement they must claim which is that there is no clear duty  under the act because you can't use the surf occasion procedure in these circumstances i've talked about one of the reasons why not because the procedure only can be used for judgments that do not exceed one hundred fifty thousand dollars only through the front row for a fi anything that happens  is a claim for money or to facilitate a claim for money against the state that my case for a sinker jacobs is no different from any of the other stuff that's being processed under that statute and that if the sta