next case on the call the docket is agenda number eight case number one one three six seven six make that ridge versus madigan counsel for the appellant please proceed thank you and made please the court michael scotto from the illinois attorney general's office here on behalf of the defendant in this case your honour's plaintiff here asked this court to add an exception to the illinois employee in and under that exception non judicial elected officials alone would have the entitlement to a state funded defense in a civil case that arises even from the most egregious indeed even criminal misconduct that principle cannot be reconciled with the plain language and structure of this statute second it runs afoul of this court's case law defining public policy in illinois and more precisely defining the limits on the expenditure of public funds for private purposes under article eight section one a of the l in my constitution and third and finally the argument that plaintiff advances asks this course this court to engage in precisely the kind of somehow not properly before this court and more importantly that argument is indeed runs through this case from start to finish that same phrase appeared on page one fifty of the common law record in this case even in the circuit court filings more importantly it's the theory that's in play here we refer to it as a screening function as a shorthand for the first sentence of paragraph to be as a measure of efficiency the argument that the attorney general has the discretion to make the determination of whether there has wanton misconduct or conduct outside the scope of employment that has been the consistent theme that has run through all of the filings in this case and there was also a quibble with the reference to legislative history there was concern that that would not be publicly available as we point out in our reply brief legislative history is publicly available on the website and any event defendant attached all of the relevant history to their opening brief in this case and if anything more were needed as this court made clear in the j p morgan decision in two thousand and ten page four hundred sixty two of that decision makes clear that a party can't forfeit canons of construction because the court doesn't want to be in the position understandably of issuing one interpretation of a statute in one case and then only to issue a very different interpretation in a later case because the case was argued using different canons of statutory construction so indeed legislative history is something this court can refer to on its own should it wish to so the certainly no forfeiture in the fact that that was added in opposition of course is that the legislative history while perfectly consistent with arguments and notable for the absence of any discussion of what would be an extraordinary measure that would allow the taxpayers to pay even in the event of criminal misconduct or other egregious misconduct in a civil case we don't think the court needs to rely on legislative history to reach the proper result here the plain language really is the  and i'd like to begin there section two is fairly straightforward as it pertains to this case section two a it sets out the general duty on behalf of the attorney general to represent a state employees who are sued civilly and then the first sentence of to be provides this screening function it says the attorney general shall determine at the outset whether or not there was misconduct intentional willful lot of misconduct in the case or whether the actions taken by the state the employee defendant in the civil case were undertaken outside the scope of his or her employment and this is of course necessary here is the general simply ensuring that public funds are not going to be spent for private improper purposes they could have taken a different path they could have done what they did in the corporate code as we point out in our brief and what a handful of other states have done namely you get unfettered access to money at the outset but then at the end of the day that employee is legally obligated to reimburse the state or their private employer for every penny that was spent on their defense if at the end of the day it's determined that they acted willfully and wantonly the general assembly opted not to compose that burden on state employees instead to ensure that public funds were spent in a public way they had the screening function at the outset so that's the first sentence of to be later in to be there is a backstop and i should add that the attorney general was designated not surprisingly as the person who would be the gatekeeper here as this court has made clear time and again as far sole discretion as a constitutional matter it's a linchpin of our constitutional system so it's no surprise she was delegated to make that decision well then later in that same paragraph the first paragraph of to be there's an additional backstop it doesn't need to be there but it is there additional protection that in the event the attorney general makes the determination at the outset that there is either intentional willful misconduct or that there has been activity outside the scope of employment that's the basis of the suit and therefore declines to provide representation or to fund a representation well then if at the end of the day the fattier fact makes to find that there was not willful and wanton this conduct and that the conduct did occur in the course who employ meant backstop and that employee then gets the full and the full value of any judgment entered against him or her plus all of the costs incurred in that defense so you have the attorney general making the initial decision you have in a sense a review function in place in the form of the ultimate finder of fact i should note that as a practical matter as a historical matter the attorney general over time has very rarely it's my understanding and talking to people i can talk to who have more on jeopardy in the office than i do that this isn't a very rare occurrence that the attorney general she does on occasion withhold funds based on a finding of will for want of misconduct no one could recall another instance in which  former present state attorney had the money withheld although as the seventh circuit make clear in this case this was an exceedingly rare case with severe serious and disturbing allegations but many of them that's how to be works and then there's the second paragraph of t which says i think not surprisingly we're going to give added deference recognizing the station of as out of respect for the station of elected officials that they don't have to accept the only one attorney the state's going to offer to them should they choose they can have their own attorney and that's what the second paragraph of to be says there are two sentences you get to choose your own attorney and by the way so long as the attorney is reasonably acceptable to the attorney general so long as their fees are reasonably acceptable to the attorney general and to see which is really a critical part of how this all works together but nontraditional elected officials with that paragraph means is that only get to choose their own lawyer but they're also exempt from the screening function that the general assembly put in at the outset have to be to ensure that money public money was not going to be misspent on private purposes but they're exempt from that even that even in the event of an extraordinary merry misconduct that they are entitled to a publicly funded defense now if we look at nothing else to see alone refutes that theory what is the what is the general assembly do in the very next paragraph to see it says notwithstanding any other provisions so it begins by making quite clear to the reader that unlike what's come before this section is special this is going to trump other things that it did exist in section two notwithstanding any other provision not a phrase that appears in the second paragraph of to be only into see it goes on to say well essentially what see creates if you look at it it creates a different screening function for judges it doesn't do away with the screening function by any stretch what it says is essentially is when it comes to members of the judiciary the scream for intentional willful misconduct is has there been a criminal trial that resulted in a conviction arising from this same misconduct so the general assembly wasn't going to say that they understood that there was and i understand from the legislative history this was  see was introduced to be has to be a lie see it wasn't a fought that we're going to do away with the screening function entirely and run the risk that public money will be spent on constitutionally or at least in a way that's antagonistic to public policy you know the decision was to judges we're going to craft a different screening function as to the willful misconduct rule and what it is is it have to has this individual been criminally convicted for the very misconduct that is now the subject of this civil lawsuit that's the screen for intentional or willful misconduct what plaintiff would like the court to rule is that notwithstanding the precise way in which the general assembly went about making a different screen in section to see that the second paragraph of section two b does the exact same thing by silence for all nontraditional elected officials and goes much further it doesn't just do what you see does it goes further than to see does under the pla be is correct the state taxpayers would have to fund the civil defense of that individual throughout potentially years of civil litigation that cannot be what the general assembly intended and if there were any question from the face of the statute the first line of to be itself answers it is to see weren't enough the first sentence of to be is the word employee is used twice in that sentence this is the sentence that defied the fines the attorney general's screening function tells her what she needs to look for and do that sentence uses the word employee twice the employee is a defined term under the statute section one b defines employee to mean both elected and non elected officials so if plaintiffs were correct it wouldn't just be the two c doesn't make sense it would also be he's also asking the court to essentially amend the first sentence of to be to say not employee but non elected employee where the word employee is used that's t clear strikes on the face of the statute that go against it now the dipping below and the brief of the plaintiff don't confront those two strikes rather the theory was that there is a way in which the second paragraph have to be must entirely supplant the first paragraph to be now it doesn't say it does that it doesn't say i'd like to see notwithstanding any other provision it doesn't say that it's creating a special set aside rule but that in itself as we explain simply cannot be the case that alternative reading not only does it to five of the points we've already discussed but it would do away with important points in the first paragraph of to be that simply has to apply to all employees and one of those is the special provision for conflicts of interest we describe that into tail in our brief the other even more important provision that's in the first paragraph of to be is the provision that is the second half of the attorney general screening function she also screens out cases involving conduct outside the scope of employment now there's been no dispute in this case the appellate court agreed plaintiff agrees we certainly agree it would be on lawful to allow the a suit to proceed at taxpayer expense when the underlying conduct occurred outside the scope of state employment and what the plaintiff has said is well but that that restriction on the application of the act also appears and in paragraph two  that's true but it's only the first sentence of to be the a g screening function that gives operative effect to that restriction it's that sentence and that sentence alone that says the attorney general shall decide shall screen out cases in which the underlying conduct occurred outside the scope of employment so if the second paragraph of section to be entirely supplants the first paragraph rolling out the window goes the only provision in the act that allows someone to screen out cases involving conduct that occurred outside the scope of employment so for all of those reasons it is impossible to square their reading with the plain language of the act if that weren't enough is this court held in right to cite at length in our brief it is a misuse of public funds in the constitutional sense under article eight section one eight it is a misuse of public funds to have taxpayers pay for the defense of a public official guilty of criminal misconduct in that case they were criminal charges and that is the difference between that case and this one's this one but i would argue that difference is not of constitutional moment it is hard to imagine that right comes out differently if instead if the if the individuals in that case had engaged in the exact same serious agree just misconduct in abuse of office but instead had been sued civilly or later had been sued civilly for the very same misconduct it is hard to imagine that the constitutional inquiry would turn on that choice the way in which the case proceeds and that instead had it been a civil case with the same misconduct that would have been fine as a constitutional matter if one accepts that then rights stands for more than just the whether or not when there are cases where the you have a private counsel paid for by the state instead of the attorney general's office representing you or a state a state lawyer representing you what does that mean in terms of some of the language of the kurds at the page eight hundred forty three of tullie makes very clear that is relying in part also on canons of ethics and is saying look if you have a lawyer who is not a state lawyer that lawyer has to be free to make decisions on behalf of his or her client in that case and doesn't have to as tali would say doesn't have to then agree with decisions made by the state as to how that defense should be run there's nothing about that case that has a remote application to this case your honor there's a claim being that somehow that case says well the parts of the statute don't necessarily work together you can't move one to the other we're not asking to do that at all we're asking that the statute be read on its face and that it's plain language be followed and then i read in a way that doesn't run afoul of constitutional prohibitions if right does anything at the very at the best right at most i should say right would make unconstitutional the reading the plaintiff proposes even at least right would would cast constitutional doubt on to that reading and we know it's an established basis of statutory construction established canon that such constitutional ballots are to be avoided what's the significance of let's if we look at the second paragraph up to be it's making clear that in the event that the attorney that there's an elected official you get two additional benefits namely an attorney and the tourney is paid for by the state but i don't see any other way in which that can affect the playing reading of the statute notwithstanding any other provision of this section that's what it did i think in the event can be read to say nothing more than under the circumstances this applies and that's exactly we agree with that under these circumstances this applies nothing in the first paragraph of to be for example except as under the next paragraph there's no there's no suggestion and to do something as extraordinary as what's being suggested here which is to immunize or rather have the public fisc the taxpayer fund even these rare instances of agree just misconduct in office something far more than that would be needed and again i don't know how that reading is reconciled with what the court the general assembly did and to see  frankly why to see was even necessary if that reading of two of the second paragraph of to be is correct and my remaining minute your honor i would just want to add that there is a third category of error that's in play here the entire premise of the argument here is that elected official is going to act in a way or may act in a way that is contrary to her statutory and constitutional duties this court made clear in sundance holmes that that is not a permissible premise on which to build a legal and  out of the statute requires that she determine and this is perfectly consistent with the unfettered discretion she has as this court made clear in lyons and other cases whenever making litigation decisions on behalf of the state so in that sense it's says she has to determine i can tell you that as i as i alluded to earlier because this is the rare case where anything is withheld notwithstanding the fact that of course there will be allegations in many cases of more egregious misconduct there's not a reliance on simply what is in the complaint and indeed the word determines i think suggests that something is something more is going on and should be going on than simply a look at the complaint i see my time is expired if the court has no further questions thank you good morning justices my name is terry akhil i represent the apple leave my confab tridge who is the former elected state attorney of edgar county and i appreciate the opportunity to speak before you today as we all know this case is largely going to be driven by statutory construction parties obviously have a disagreement as to how this court should interpret the state employee indemnification act the attorney general makes a number of arguments which they contend support their interpretation of the stanch counsel just spoke for a while his briefs all make reference to this public policy argument which he contends supports their interpretation of the statute they contend generally that you can't use public funds to defend willful in what and misconduct because that would violate violate public policy in listening to his argument the basis of his public policy argument appears to assume that it's factually in a complaint nothing more just as freeman was correct this argument about an essential screening process was an after the fact argument made by the attorney general but the truth of the matter is that the state of illinois through the attorney general denied this select the state's attorney a state funded defense because of allegations in a civil rights complaint under section one nine hundred eighty three i don't think i need to remind this court is that every single civil rights complaint that is filed against a state employee must allege willful or deliberate disregard of a known kindness the two tional right negligence is in significant so every time there is a nine hundred eighty three action filed against the state official there is the equivalent of an allegation of willful misconduct that taken care of by the backstop and mr own it is not your outer there is no way when you have a civil rights case such as the one we have in this case involving hundreds depositions hundreds of thousands of pieces of paper to tell a state's attorney mr mcphatter rich you have to use your own funds you have to defend yourself you have to essentially bankrupt yourself to defend yourself and then later on if it's determined you did not engage in willful and wanton misconduct we'll go ahead and pay you back at that point in time i think your honor that argument made by counsel is devoid of an understanding of just how expensive this type of litigation is so in my opinion that in no way cures problem today the attorney general tries to tell us that there was this essentially screening process well as part of the record in this case it's see one fifteen is the letter that was written by barry gross in the attorney general's office on july the fifth two thousand and five where he states that the representation must be declined because the accidental missions which gave rise to plaintiff's claim involve allegations of intentional willful and wanton this kind a can your partner what happened in this case was the attorney general denied my client a paid for defense because of allegations in a complaint if we should agree consideration the lack of as judge government just as karen said the lack of any type of definition any type of guideline criteria the lack of that in the statute to assist you in determining legislative intent if in fact with a elected official who could be subject to person politics there was going to be the screening process available and they actually have been laid out in some type of detail what is the process when a consistent is it just looking at a complaint is it just looking at allegations made by some plaintiff and some civil rights case is the echo to be sufficient or not so i think it's important in terms of determining legislative intent now we get tourney general argues in support of their interpretation of the statute that essentially the legislature knew that there was a public policy pro have bishan over using public funds to defend will what misconduct that seems to be a really big part of their argument well let's see if they asked in fact a valid argument let's see if the actions of the attorney general in this case and i don't mean this is a personal attack on anyone are consistent with the fact that they consistently maintain the position that you may not use public funds to defend a state official who is alleged to have engaged in  to aspects of conspiracy one involving certain paris police officers an n l an oist state police officer by the name of jack eckard it is alleged and they have portion of the conspiracy that those police officers engaged in misconduct by essentially feeding information to a witness and getting that witness to make false statements it's alleged that my client the state's attorney learned of a out and did not disclose it during discover there isn't also a portion of the complaint that deals with a vast number of elderly state police officers who are alleged to have participated in the coverup of information that would have exaggerated both defendants that having occurred after the conviction now the attorney general tells us about the screening process and how they can't use public funds to defend allegations of willful and wanton misconduct let's see if that's true in the appellate court decision they felt there was a concern that was evidence by the legislature over arbitrary use of the power by the attorney general in this case the attorney general who claims to have screened the case and claims to have this public policy that they can't use public funds to defend allegations of willful and wanton this conduct what did they do they defended all of the state police officers every single one of every single about certain information in fail to disclose later the attorney general settled the case against started all on behalf of the ellen oist state police and used more taxpayer funds and behalf of those some type of opinion that there was stopped because the primary emphasis at least in the argument before this court was the plain line and we're going to get to questions like did the general assembly know that the statute would render to seduce the perp was basically that there would be no need because judges would have been covered under to be if they were to you know covers or really get into the plain reading or is this primarily an argument that in light of the facts of this case they should be a stop from coming under the statute because the first thing we have to look at with one line i think i think really the court should resolve this on the playing plain language of the statute and i think the thrust of my argument should go primarily to legislative intent and mr squirrel seems to be arguing that the legislature knew that they can't use public funds if there's allegations of willful conduct so the court that the court should consider that to be you look at how it's carved out to a talks about state employees they had to obviously includes both elected officials not elected officials and judges on the second paragraph and to be  subset of state employees the elected officials and gives them certain additional rights and powers and then section c carves out certain additional rights beyond the second paragraph to be on behalf of judges and i don't think it's really necessary to read anything more into how the legislature drafted that statute other than than the determination that first paragraph of to be all state employees second paragraph elected officials change his or her attorney who biden said attorney shall be reasonably acceptable to the attorney general and then such cases the state shall pay costs and fees to the extent approved by the attorney general as reasonable as they are incurred how does that affect this case where we clearly the attorney general did not find counsel acceptable and did not approve fees as they were incurred  huge problem your honor back when this case first occurred back and strike it when it was first filed back in two thousand and five based upon the letters that were said a request for defense was submitted to the attorney general he declined to represent mr mcfee act which as i previously indicated i think we all know at that time there were two insurance companies that are who will believe had to cover the cost of the defense those two insurance companies filed declaratory judgment actions saying we don't have coverage and for a period of time those insurance companies in fact funded the defense i have represented mr mcphatter since two thousand five about some time i think two thousand and seven or tooth early two thousand and seven one of the insurance companies won their declaring tory action and was out from that point and they fuse to pay the second insurance company also said we think our issues are the same we declined to pay we then tender the case back to the state of illinois they refused to pay for two and a half years your honor mr mcphatter rich he had no one pain for his defense my firm continue to represent him under the hopes that some day that we would be paid in connection with this case we certainly had the option of abandoning the defense of the case and i think that part of the argument that we had previously made is section two d which is the indemnification statute is different than the language paragraph and there is a really strong argument that even if the state of illinois could decline to provide a defense for mr mcveigh after they're still on the hook for the judg fact rich continued to have my firm representing him so it's kind of a long answer to your question i know but it's it's been a huge problem what was the basis of the insurance duck duck actions were no coverage for no coverage on the one where there was no coverage it was taken up by edgar county illinois and the first policy covered all members of the sheriff's the second policy was written slightly different or i think it refers only to law enforcement officials and also the scope of the definition of who was sure yes was it not the alleged one not at all ok you're welcome  i think it's perfectly reasonable in light of what i've just told you about the decisions that were made by the attorney general to defend the state police officers who were alleged in the complaint to have been actively involved in covering up evidence to defend them who refused to defend the guy the state's attorney who allegedly knew about it but didn't disclose it to defense when they said it appellate court in this case there was reason to conclude that the legislators sought to protect elected officials from the arbitrary denial of the payment of attorney's fees based upon partisan considerations i agree i think that decision and the finding of a concern was realistic on the part of the appellate court in the part of the legislature this will help me understand your argument with regard to the subset of  that question because the it starts out by saying in the event that the defendant in the proceeding which seems to me to arc and back to the first or your honor i think that in my opinion when they start in the event herman had reference i think they were saying something what they were saying is that that elected officials are going to be treated differently and i think the appellate court found that because of part concerns over partisan politics now section two a clearly you know we're all trying to determine legislative intent and the legislative intent clearly was that for the elected official to be covered it has to be essentially within the scope of his duties so that portion of today has to apply to the second paragraph but as the appellate court said in this decision if the legislature intended and wanted to provide to the attorney general this ability to decline coverage to elected officials they could have said that in the second paragraph of to be after the words in the event by adding three or four additional words in there and they may decline to do that they decided not to do that so i don't believe that the first portion of of to be applies to elected official argument that the first part of to be described employees and that to a defines employees is the life of this i think how do you record reconcile that i think to a clearly refers to all state employees and i think the first paragraph of to be is reference to a category called state employees and that the second paragraph is a subclass of subcategory being the used which would the definition includes elected officials correct so so at least in b it would appear that the language would be consistent and mean elected officials the the second paragraph employees in my opinion the way the stache statute is drafted is not intended to include elected officials so i don't believe the first paragraph of to be was intended by the legislature to include elected officials they're covered under the second paragraph of to be despite the initial definition into it yes i think we all agree this statute sure as heck could have been written a lot better and a lot clearer but as i know i running short on time basis i think it was an attempt on the part of the legislature to skip to create different rights for partisan elected officials from other state employees and i think is the sec court said if the legislature into her intended elected officials to be treated the same way in terms of the ability of the attorney general to deny coverage they could easily have said that in the second paragraph to be as well has the special additional protection of having a lawyer of their choice but it does not disturb there's nothing in there to suggest it disturbs to the first paragraph of to be that it would have to apply as the word employee is intended to mean is defined to mean what it would include elected officials and council made the point that a talks about the fact that this cannot apply to conduct that occur outside the kurds outside the scope of employment again as i said though in the opening it's only the first sentence of to be that uses the word employee and therefore includes elected officials as well that's the only place in the statute where someone is intrusted to make that decision so it may be fine to say in two way that it only applies to conduct that occurs within the scope of employment but it takes the first sentence of to be to give any practical effect to that prohibit there's been some discussion about this very case i should remind the court there's been no so there's been no no no request in this case that this court in any way modify the standards for the attorney general the word determined is used the court must presume good faith on the part of the attorney general that is not only consistent with the broad holding  language and part of the holding in the sundance holmes case beyond that that is part and parcel of cases like lions and ice and i p c b that recognize that the attorney general is intrusted to make litigation decisions on behalf of the state in her discretion that's her article five section fifteen power as the state's chief legal officer there's been no suggestion that there should be some additional review put in place in this or any other case and bear in mind that the request is to force into the statute an exception for some employees but the argument may that there ought to be some review somehow or if that's what's being requested there's no question that the attorney general has unfettered discretion to make these determinations as to the tens of thousands of other employees so the argument seems to be that while we were disappointed with the decision in this case therefore we should recognize an exception that doesn't appear in the statute for a broad universe of employees although not that many compared to the tens of thousands who will continue under the other regime beyond this excuse me as to this particular case i don't think it's relevant but i'll make just a very brief mention it cannot be the argument disproves itself if the theory is that whenever there is an allegation of willful misconduct the attorney general lies soley on the allegations in the complaint then this would be a frequent it would be the rule rather than the exception that the attorney general would decline representation and that simply isn't the case and this very case proves that now plaintiff makes much of the fact that aker d has a state office and i'll be very brief on this because because again i don't see this as relevant so the case before the court but  just to touch on it briefly activity was also alleged to have engaged in willful and wanton misconduct now i wasn't in the office at the time the determination was made i cite to some articles and the brief simply describing that process that went well beyond looking disavow the notion that there should be administrative review procedures in place i didn't feel it necessary to at least address very briefly the thoughts about this specific case the theory that the second paragraph of to be is really an effort to avoid hard as in politics which is what the appellate panel presumed not only flies in the face as i've said of sundance holmes in this proposition it runs afoul of the whole notion that the attorney general is making critical legal decisions on behalf of the state every day whether to defend statutes as constitutional which would be an imperative of the legislature whether to defend members of the governor's staff and directors of agencies which would be an  e for the governor the notion that this one statute in this one paragraph focuses on a potential bad faith by the attorney general is not only inconsistent with this call court's probations it would simply make unworkable the entire notion of the attorney general making these decisions on behalf of the state and indeed to put a practical point on it if the concern really were that the attorney general were going to they want to insulate these folks from the attorney general's decision why give them and this goes justice tice's question why give the attorney general discretion to approve or disapprove the attorneys why give the attorney general the discretion to approve or disapprove the reasonable this of fees that that's obviously provided we all agree that's in the second paragraph of to be that's that flies in the face of any notion that they were trying to protect these folks entirely or insulate them from some sort of indictive attorney general excuse me and  let me turn quickly to to the sort of counter argument that smith made as a matter of policy here the backstop is that it is relevant and it is important obviously at the end of the day one can recoup one's fees its legal defense fees it's important enough that as i said our corporate code thinks it's good enough for office and officers and directors of corporations and other states think it's good enough to use it they use the different process of paying and keeping later i apologize but i should go on to say there's insurance we've talked about it here in response to the chief justice's question there's nothing about these policies nothing about these opinions from the federal suggest that a county can't or that it's a bad practice for a county to insure their state's attorneys that's absolutely another backstop here this isn't the only game in town as this very case illustrates beyond that there are the immunities that we discuss in our brief and finally and i think this case illustrates this too that the opportunity to perhaps collect at the back and provide some financial incentive for an attorney to represent a state's attorney or another just as in the  would favor a rule that singles out prosecutors specifically not all acted officials and not just elected prosecutors but all prosecutors for special protections that is an argument that's properly made to the general assembly general somebody can then in the first instance decide whether or not it's consistent with public policy and our constitutional obligations as legislators and they can make that determination at the outset what shouldn't be done is to ask this court to read in language into the statutes to ju ially amend the word employee to disregard the legislature and what they did into see in order to provide those protections under notes without warning to the taxpayers who would not have been aware when that statute was passed that they could be on the hook for the legal defense fees of office holders who abuse their office with willful and wanton misconduct in our later suit unless the court has any questions stands adjourned until nine am wednesday january twenty three two thousand and thirteen