ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

MICHAEL M. McFATRIDGE and THE COUNTY OF EDGAR,

Plaintiffs-Appellants, v. LISA M. MADIGAN, Attorney General,

Defendant-Appellee.

 District & No. Fourth District

Docket No. 4-10-0936

Filed December 14, 2011

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

The trial court erred in dismissing plaintiffs’ complaint for mandamus

seeking an order directing the Attorney General to approve payment for

the reasonable litigation expenses incurred by plaintiff, a former State’s

Attorney, in defending actions for malicious prosecution, false

imprisonment, and intentional infliction of emotional distress filed bytwo

persons plaintiff successfully prosecuted for murder and arson who were

later released from custody, since the complaint alleged sufficient facts

to show a clear right of recovery on plaintiff’s part and a clear duty on the

part of the Attorney General under section 2(b) of the State Employee

Indemnification Act.

Decision Under 

Review

Appeal from the Circuit Court of Sangamon County, No. 10-MR-530; the

Hon. Patrick J. Londrigan, Judge, presiding.

Judgment Reversed.
Counsel on

Appeal

Michael E. Raub (argued), of Heyl, Royster, Voelker & Allen, of Urbana,

and Terry L. Ekl (argued), of Ekl Williams, PLLC, of Lisle, for

appellants.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro

(argued), Solicitor General, and Brian F. Barov, Assistant Attorney

General, of counsel), for appellee.

Panel JUSTICE POPE delivered the judgment of the court, with opinion. 

Justices Steigmann and Knecht concurred in the judgment and opinion.

OPINION

¶ 1 In August 2010, plaintiffs, Michael M. McFatridge and Edgar County, Illinois

(McFatridge), filed a complaint for mandamus relief seeking an order directing defendant,

Lisa M. Madigan, the Illinois Attorney General (Attorney General), to approve payment for

reasonable litigation expenses incurred in the defense of two civil actions filed against

plaintiffs by Gordon “Randy” Steidl and Herbert Whitlock.

¶ 2 In October 2010, the trial court dismissed plaintiffs’ complaint, finding it did not state

facts “necessary to establish a clear and undoubted right to reliefsought and a corresponding

duty on the part of the [Attorney General] to perform the act demanded.” The trial court did

not provide any rationale for its ruling.

¶ 3 Plaintiffs appeal, arguing the trial court erred in dismissing the mandamus complaint

where the complaint pleaded sufficient facts to show a clear right of recovery on the part of

McFatridge and a clear duty on behalf of the Attorney General because section 2(b) of the

State Employee Indemnification Act (Act) (5 ILCS 350/2(b) (West 2008)) requires the

Attorney General to provide for McFatridge’s defense costs. We reverse.

¶ 4 I. BACKGROUND

¶ 5 Between 1980 and 1991, McFatridge served as the State’s Attorney of Edgar County,

Illinois. In 1987, McFatridge successfully prosecuted Steidl and Whitlock for murder. Steidl

was convicted of the murders of both Dyke Rhoads and Karen Rhoads and received a

sentence of death, which was later reduced to natural life in prison. Whitlock was convicted

of murdering Karen Rhoads and sentenced to life in prison.

¶ 6 In June 2003, the United State District Court for the Central District of Illinois granted

Steidl’s habeas corpus petition, vacated Steidl’s conviction, and gave the State 120 days to

either release or retry Steidl. Steidl v. Walls, 267 F. Supp. 2d 919, 940-41 (2003). In 2007,

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this court granted Whitlock’s posttrial motion and ordered his release or retrial. People v.

Whitlock, No. 4-05-0958 (Sept. 6, 2007) (unpublished order under Supreme Court Rule 23).

Both Steidl and Whitlock have since been released from custody and have not been retried.

¶ 7 In May 2005, Steidl filed a complaint in the United States District Court for the Central

District of Illinois pursuant to, inter alia, section 1983 of the Civil Rights Act (42 U.S.C.

§ 1983 (2000)) against a number of officials involved in his prosecution, including

McFatridge and Edgar County. Steidl’s complaint alleged several claims, includingmalicious

prosecution, false imprisonment, and intentional infliction of emotional distress. Specifically,

Steidl alleged he was tried and convicted of murder and arson and sentenced to death based

on false evidence which was fabricated, coerced, and manipulated by McFatridge.

¶ 8 In June 2005, McFatridge requested the Illinois Attorney General represent him in the

Steidl litigation pursuant to section 2 of the Act (5 ILCS 350/2 (West 2008)).

¶ 9 In a July 6, 2005, letter, the Attorney General declined McFatridge’s request on the

ground “the acts or omissions which give rise to plaintiff’s claim involve allegations of

intentional, wilful or wanton misconduct on your part.” The letter also stated, “If the court

or jury find that the acts complained of were not intentional, wilful or wanton misconduct

you will be indemnified for any judgment and reasonable attorneys’ fees will be reimbursed

as provided by law.”

¶ 10 In April 2009, Whitlock filed an amended complaint in federal court against McFatridge

and Edgar County, alleging claims similar to those contained in Steidl’s complaint. Both

Whitlock’s and Steidl’s lawsuits sought to hold Edgar County financially responsible for any

judgment entered against McFatridge because McFatridge was its employee. According to

the parties, both actions are currently pending in federal district court.

¶ 11 In March and April 2009, then Edgar County State’s Attorney Matthew Sullivan

requested the Attorney General represent McFatridge in the Steidl and Whitlock litigation.

Sullivan also asked the State to pay at least two-thirds of Edgar County’s legal expenses.

¶ 12 On May 6, 2009, the Attorney General denied both of Sullivan’s requests. The Attorney

General declined to represent McFatridge because his actsor omissions “involved allegations

ofintentional,wilful or wanton misconduct.” The AttorneyGeneral stated McFatridge would

be reimbursed for reasonable attorney fees “if a court or jury [finds] the acts complained of

were not intentional, wilful or wanton.” The AttorneyGeneral also denied Sullivan’s request

to pay Edgar County’s legal fees because the Attorney General “does not represent counties

and other units of local government.”

¶ 13 In a July 20, 2010, letter to the Attorney General, Terry Ekl, McFatridge’s retained

counsel, wrote the following:

“Steidl filed suit in 2005 and Whitlock filed suit in 2008 shortly after his release from

custody. Two insurance carriers, Scottsdale Insurance and White Mountain Insurance,

have been defending this matter under a reservation of rights for several years and had

agreed to pay our attorney’s fees. Scottsdale was recently successful in winning a

declaratory judgment suit in connection with their duty to defend as well as

indemnification for any judgment obtained against Mr. McFatridge. Scottsdale informed

us that as of May 12, 2010[,] they will no longer be funding the defense of McFatridge.

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White Mountain recently informed McFatridge in writing that theywill no longer pay the

costs of his defense as of June 30, 2010.

Pursuant to 5 ILCS 350/2, as the elected State’s Attorney of Edgar County,

performing acts within his official capacity, he is entitled to have the expenses of his

defense including attorney fees paid by the State of Illinois. My law firm has been

involved in this matter for over four (4) years and Mr. McFatridge would exercise his

right under 5 ILCS 350/2 to have my firm continue to defend this case to conclusion.”

¶ 14 In an August 19, 2010, letter, the Attorney General referenced its prior denials of

McFatridge’s previous requests for representation and wrote the following:

“By letters dated June 14 and June 29, 2005, Mr. McFatridge requested

representation in the Steidl Lawsuit. That request was denied July 6, 2005. Former

State’s Attorney Matthew Sullivan, by letters dated March 12 and April 21, 2009,

requested that the State of Illinois provide a defense to Mr. McFatridge in both the Steidl

and Whitlock Lawsuits, and also asked that the State pay two-thirds of the Edgar County

legal expenses in both Lawsuits. These requests were denied May 6, 2009. The July 6,

2005[,] and May 6, 2009[,] denials were because the acts or omissions which gave rise

to Steidl and Whitlock’s claims against Mr. McFatridge involved allegations of

intentional, wilful or wanton misconduct. With these prior denials, Mr. McFatridge and

Mr. Sullivan were also told that if a court or jury were to find that the acts Steidl and

Whitlock complained of did not represent intentional, wilful or wanton misconduct, Mr.

McFatridge would be indemnified for any judgment, and reasonable attorneys’ fees

would be reimbursed as provided by law.

The basis for each of your current August 6 and July 20, 2010[,] requests are [sic]

essentially the same. Scottsdale Insurance and White Mountain Reinsurance had

provided Mr. McFatridge and the Countywith a defense under certain insurance policies.

Scottsdale’s successful declaratoryjudgment actionwas recentlyaffirmed bythe Seventh

Circuit. Scottsdale therefore will no longer provide a defense to Mr. McFatridge. White

Mountain has also said it will no longer provide a defense. I have reviewed the White

Mountain and Scottsdale letters denying any further defense to Mr. McFatridge. Further,

I have reviewed the District Court declaratoryjudgment orders denying coverage, as well

as the Seventh Circuit opinion affirming the denial of coverage. None of these materials

found that the acts of which Steidl and Whitlock complain do not represent intentional,

wilful or wanton misconduct.

Further, in neither of the Steidl or Whitlock lawsuits has a court or jury found that

Mr. McFatridge did not engage in intentional, wilful or wanton misconduct. In fact, in

a September 6, 2007[,] court order awarding Whitlock post conviction relief, a

unanimous Illinois Appellate Court concluded as follows: ‘we further hold that the State

violated Brady by suppressing [evidence] ***.’

For these reasons, your latest requests for representation for Mr. McFatridge are

denied.”

¶ 15 On August 30, 2010, McFatridge filed a complaint for mandamus against the Attorney

General requesting an order directing the Attorney General to “approve all reasonable

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litigation expenses and attorneys’ fees which [McFatridge] expects to incur in the defense

of the Steidl and Whitlock civil suits.”

¶ 16 On October 1, 2010, pursuant to section 2-619.1 of the Code of Civil Procedure

(Procedure Code) (735 ILCS 5/2-619.1 (West 2008)), the AttorneyGeneral filed a combined

motion to dismiss McFatridge’s complaint under both sections 2-615 and 2-619 (735 ILCS

5/2-615, 2-619 (West 2008)). The section 2-615 motion argued the Attorney General is

afforded discretion under the Act and mandamus is not a proper remedy to control the

exercise of discretion by a state official. The section 2-619 motion argued the complaint

should be dismissed because (1) the complaint attempts to control the actions of state

officials in a matter where the Attorney General is granted discretion, (2) the complaint is

barred by the statute of limitations and laches where the claim was brought more than five

years after the Attorney General denied McFatridge’s request for representation, and (3)

McFatridge’s claims are barred by sovereign immunity.

¶ 17 On October 21, 2010, the trial court dismissed McFatridge’s complaint pursuant to

section 2-619 because it did not state facts “necessaryto establish a clear and undoubted right

to relief sought and a corresponding duty on the part of the [Attorney General] to perform

the act demanded.” However, the trial court failed to provide any rationale for its decision.

(Although the docket sheet reflects the court allowed the section 2-619 motion to dismiss,

it appears the section 2-615 motion to dismiss was allowed.)

¶ 18 This appeal followed.

¶ 19 I. ANALYSIS

¶ 20 On appeal, McFatridge argues the trial court erred in dismissing his mandamus complaint

where the complaint pleaded sufficient facts to show a clear right of recovery on the part of

McFatridge and a clear duty on behalf of the Attorney General. Specifically, McFatridge

contends section 2(b) of the Act requires the Attorney General to provide for McFatridge’s

defense costs. McFatridge maintains under section 2(b) of the Act, the Attorney General has

no discretion to refuse to pay his reasonable attorney fees.

¶ 21 The Attorney General argues section 2(b) affords the Attorney General the discretion to

denyMcFatridge’s attorney fees and mandamus cannot be used to control a matter within its

discretion. In the alternative, the Attorney General contends (1) McFatridge’s mandamus

complaint was barred by (a) the statute of limitations and (b) sovereign immunity and (2)

McFatridge is not an elected state official because he is no longer serving as State’s Attorney.

¶ 22 A. Standard of Review

¶ 23 “Mandamus is an extraordinary remedy that may be used to compel a public officer to

perform his official duties that do not involve an exercise of discretion.” Ford v. Walker, 377

Ill. App. 3d 1120, 1124, 888 N.E.2d 123, 127 (2007). Mandamus is not proper to direct the

manner in which a discretionary act is performed even if the judgment or discretion has been

erroneously exercised. Turner-El v. West, 349 Ill. App. 3d 475, 480, 811 N.E.2d 728, 733

(2004). A court will not grant a writ of mandamus unless the moving party demonstrates a

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clear, affirmative right to relief, a clear duty on the part of the opposing party to act, and clear

authority in the opposing party to comply with the writ. Walker, 377 Ill. App. 3d at 1124, 888

N.E.2d at 127.

¶ 24 The Attorney General filed a combined motion to dismiss McFatridge’s mandamus

complaint. See 735 ILCS 5/2-619.1 (West 2008). A section 2-615 motion to dismiss (735

ILCS 5/2-615 (West 2008)) attacks the sufficiency of the complaint and raises the question

of whether the allegations of the complaint, when viewed in the light most favorable to the

nonmoving party, are sufficient to state a cause of action upon which relief can be granted.

Marshall v. Burger King Corp., 222 Ill. 2d 422, 429, 856 N.E.2d 1048, 1053 (2006). Because

a motion to dismiss under section 2-615 challenges the legal sufficiency of the complaint by

alleging defects on its face, we review an order ruling on the motion de novo. City of

Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 364, 821 N.E.2d 1099, 1110 (2004). In

ruling on a section 2-619 motion to dismiss, “ ‘the trial court must interpret all pleadings and

supporting documents in the light most favorable to the nonmoving party,’ and it should

grant the motion ‘if the plaintiff can prove no set of facts that would support a cause of

action.’ ” Hadley v. Montes, 379 Ill. App. 3d 405, 407, 883 N.E.2d 703, 706 (2008) (quoting

Rodriguez v. Sheriff’s Merit Comm’n of Kane County, 218 Ill. 2d 342, 349, 843 N.E.2d 379,

382 (2006)). We review de novo the dismissal of a complaint pursuant to section 2-619.

Smith v. Waukegan Park District, 231 Ill. 2d 111, 115, 896 N.E.2d 232, 235 (2008).

¶ 25 B. Indemnification Act

¶ 26 The central issue in this important case requires this court to construe section 2 of the

Act. We review issues of statutory construction de novo. People v. Ehley, 381 Ill. App. 3d

937, 943, 887 N.E.2d 772, 778 (2008). When interpreting a statute, we must “ascertain and

give effect to the intent of the legislature.” O’Casek v. Children’s Home & Aid Society of

Illinois, 229 Ill. 2d 421, 440, 892 N.E.2d 994, 1007 (2008). The best evidence of that intent

is the plain language of the statute, and when the language of the statute is clear and

unambiguous, this court is bound by that plain language. Albee v. City of Bloomington, 365

Ill. App. 3d 526, 528, 849 N.E.2d 1094, 1096 (2006). “Where the language of the statute is

clear and unambiguous, we must apply it as written, without resort to other tools of statutory

construction.” MD Electrical Contractors, Inc. v. Abrams, 228 Ill. 2d 281, 287-88, 888

N.E.2d 54, 58 (2008). However, if the language of a statute is ambiguous, a reviewing court

may look to tools of interpretation to ascertain the intended meaning of a provision. DeLuna

v. Burciaga, 223 Ill. 2d 49, 59, 857 N.E.2d 229, 236 (2006). A statute is ambiguous where

two well-informed people could reach different conclusions regarding its language. MD

Electrical Contractors, 228 Ill. 2d at 288, 888 N.E.2d at 58.

¶ 27 McFatridge argues under the second paragraph of section 2(b) of the Act, the Attorney

General does not possess discretion to refuse payment of attorney fees for elected state

officials. The Attorney General argues pursuant to the first paragraph of section 2(b) it

possessed the discretion to decline McFatridge’s request for attorney fees because it

determined the alleged acts underlying the civil claim were intentional, wilful, or wanton

misconduct. However, a statute should be read as a whole and construed so as to give effect

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to every word, clause, and sentence and should not be read in a way that would render any

part superfluous or meaningless. Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189, 561 N.E.2d 656,

661 (1990). Accordinglywe cannot read either paragraph of section 2(b) without considering

it in the context of the Act as a whole.

¶ 28 Section 2(a) of the Act provides for the representation and indemnification of state

employees in civil actions as follows:

“In the event that any civil proceeding is commenced against any State employee arising

out of any act or omission occurring within the scope of the employee’s State

employment, the Attorney General shall, upon timely and appropriate notice to him by

such employee, appear on behalf of such employee and defend the action.” 5 ILCS

350/2(a) (West 2008).

¶ 29 The Act also provides limitations on the Attorney General’s representation of state

employees. Pursuant to section 2(b), the AttorneyGeneral “shall decline” to represent a state

employee where

“the AttorneyGeneral determines that so appearing and defending an employee either (1)

involves an actual or potential conflict of interest, or (2) that the act or omission which

gave rise to the claim was not within the scope of the employees’s State employment or

was intentional, wilful or wanton misconduct.” 5 ILCS 350/2(b) (West 2008).

¶ 30 In the event the AttorneyGeneral declinesrepresentation because of an actual or potential

conflict of interest, the employee “may employ his own attorney to appear and defend, in

which event the State shall paythe employee’s court costs, litigation expenses and attorneys’

fees to the extent approved by the Attorney General as reasonable, as they are incurred.” 5

ILCS 350/2(b) (West 2008).

¶ 31 If the Attorney General declines representation on the ground the employee’s act or

omission leading to the claim was not within the scope of employment or was intentional,

wilful, or wanton misconduct, then only in the event the trier of fact finds the employee’s

“acts or omissions” were within the scope of his employment and were not the result of

intentional, wilful, or wanton misconduct will the State indemnify the employee for any

damages awarded, court costs, and attorney fees assessed as any part of any final judgment.

In addition, the State would also have to reimburse the employee’s litigation costs and

attorney fees, as approved by the Attorney General as reasonable. 5 ILCS 350/2(b) (West

2008).

¶ 32 Section 1, the “Definitions” section of the Act, defines the term “employee” as including,

inter alia, former or present elected state officers. 350 ILCS 350/1(b) (West 2008).

¶ 33 In this case, the Attorney General declined to represent McFatridge on the ground the

underlying claim arose from intentional, wilful, or wanton misconduct–presumably a

reference to the limitations found in paragraph one of section 2(b) of the Act. However, the

limitations in paragraph one of section 2(b) notwithstanding, paragraph two of section 2(b)

specifically addresses elected state officials as follows:

“In the event that the defendant[, i.e., ‘employee,’] in the proceeding is an elected

State official, including members of the General Assembly, the elected State official may

retain his or her attorney, provided that said attorney shall be reasonably acceptable to

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the Attorney General. In such case, the State shall pay the elected State official’s court

costs, litigation expenses, and attorneys’ fees, to the extent approved by the Attorney

General as reasonable, as they are incurred.” (Emphases added.) 5 ILCS 350/2(b) (West

2008).

By excluding the more general category of nonelected employees from this paragraph, the

General Assembly demonstrated it intended to create a much narrower category of employee

to treat differently. See Knolls Condominium Ass’n v. Harms, 202 Ill. 2d 450, 459, 781

N.E.2d 261, 267 (2002) (where both a general and specific statutory provision relating to the

same subject exist in the same act, we will presume the legislature intended the more specific

provision to govern). Indeed, counsel agreed at oral argument the term “elected State

official” includes only the 6 statewide constitutional officers, the 102 elected State’s

Attorneys, and the 176 members of the General Assembly. This is a very limited class of

actors, all of whom are elected on a partisan basis (which by itself lends rational support for

the requirement the State pay for the elected official’s reasonable choice of attorney without

regard to any exercise of discretion on the part of the Attorney General who, as a

constitutional officer, is a member of that class). It is reasonable to conclude the legislature

sought to insulate partisan elected officials from potential withholding of representation or

from arbitrary denial of payment for attorney fees when the opposite party is in control of

those decisions. It is also reasonable to conclude the legislature would provide special

protection to elected State’s Attorneys whose decisions to prosecute individuals must be able

to be made without the threat of financial bankruptcy should they be sued.

¶ 34 The second paragraph of section 2(b) does not contain the limiting language found in the

first paragraph of section 2(b). Instead, this paragraph provides elected officials with the right

to employ the counsel of their choosing and limits the Attorney General’s discretion in this

regard to whetherthe elected official’s choice of counsel and the attorneyfees are reasonable.

In the absence of either of these enumerated determinations, the Act mandates “the State

shall pay the elected State official’s court costs, litigation expenses, and attorneys’ fees ***

as they are incurred.” 5 ILCS 350/2(b) (West 2008).

¶ 35 We note the Attorney General’s argument would be stronger if the second paragraph of

section 2(b) appeared in section 2(a), rather than in section 2(b). If that were the case, the Act

would provide all state employees receive the Attorney General’s representation, but in the

event you are an elected state official, you may retain counsel of your choosing. Then both

those elected and nonelected would be subject to the limitations on the Attorney General’s

representation found in paragraph one of section 2(b), i.e., conflicts of interest and

intentional, wilful, or wanton misconduct findings.

¶ 36 In this case, however, the only requirement found in section 2(b) relating to elected

officials is that their choice of attorney and the fees charged by that attorney are

reasonable–nothing more. If the General Assembly wanted to impose additional restrictions

and limitations on the State’s obligation to pay for an elected official’s court costs, litigation

expenses, and attorney fees, it would have so stated. It did not. Instead, the plain language

of the second paragraph of section 2(b) provides McFatridge with a clear, affirmative right

to reimbursement of his legal costs as they are incurred, regardless of any determination by

the Attorney General of intentional, wilful, and wanton misconduct. Accordingly, the State

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is obligated to pay McFatridge’s court costs, litigation expenses, and attorney fees to the

extent the Attorney General determines those charges are reasonable.

¶ 37 C. Statute of Limitations

¶ 38 In the alternative, the Attorney General argues McFatridge’s mandamus complaint was

time-barred by the five-year limitation period found in the “catch-all” provision of section

13-205 of the Procedure Code. 735 ILCS 5/13-205 (West 2008) (“all civil actions not

otherwise provided for, shall be commenced within 5 years next after the cause of action

accrued”). Specifically, the Attorney General contends McFatridge’s claim accrued on July

6, 2005, when the AttorneyGeneral denied his initial request for representation and therefore

his August 30, 2010, mandamus complaint was not timely filed.

¶ 39 McFatridge argues the five-year statute of limitations is not at issue in this case where

the AttorneyGeneral did not deny his request to have the State pay for his litigation expenses

and attorney fees until August 19, 2010, and he filed his complaint on August 30, 2010. We

agree with McFatridge.

¶ 40 In a July 20, 2010, letter to the Attorney General, McFatridge’s retained counsel, wrote

in relevant part, the following:

“Pursuant to 5 ILCS 350/2, as the elected State’s Attorney of Edgar County,

performing acts within his official capacity, he is entitled to have the expenses of his

defense including attorney fees paid by the State of Illinois. My law firm has been

involved in this matter for over four (4) years and Mr. McFatridge would exercise his

right under 5 ILCS 350/2 to have my firm continue to defend this case to conclusion.”

¶ 41 In an August 19, 2010, letter, the Attorney General referenced its prior denials of

McFatridge’s previous requests for representation and wrote the following:

“By letters dated June 14 and June 29, 2005[,] McFatridge requested representation

in the Steidl lawsuit. That request was denied July 6, 2005. Former State’s Attorney

Matthew Sullivan, by letters dated Match 12 and April 21, 2009, requested that the State

of Illinois provide a defense to [McFatridge] in both the Steidl and Whitlock lawsuits,

and also asked that the State pay two-thirds of the Edgar County legal expenses in both

Lawsuits. These requests were denied May 6, 2009. The July 6, 2005[,] and May 6,

2009[,] denials were because the acts or omissions which gave rise to Steidl and

Whitlock’s claims against [McFatridge] involved allegations of intentional, wilful or

wanton misconduct. With these prior denials, [McFatridge] and Mr. Sullivan were also

told that if a court or jury were to find that the acts Steidl and Whitlock complained of

did not represent intentional, wilful or wanton misconduct [McFatridge] would be

indemnified for any judgment, and reasonable attorney’s fees would be reimbursed as

provided by law.

The basis for your current August 6 and July 20, 2010[,] requests are [sic] essentially

the same. Scottsdale Insurance and White Mountain Reinsurance had provided Mr.

McFatridge and the County with a defense under certain insurance policies. Scottsdale’s

successful declaratory judgment action was recently affirmed by the Seventh Circuit.

Scottsdale therefore will no longer provide a defense to Mr. McFatridge. White Mountain

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has also said it will no longer provide a defense. I have reviewed the White Mountain and

Scottsdale letters denying any further defense to Mr. McFatridge. Further, I have

reviewed the District Court declaratory judgment orders denying coverage, as well as the

Seventh Circuit opinion affirming the denial of coverage. None of these materials found

that the acts of which Steidl and Whitlock complain do not represent intentional, wilful

or wanton misconduct.

Further, in neither of the Steidl or Whitlock lawsuits has a court or jury found that

Mr. McFatridge did not engage in intentional, wilful or wanton misconduct. In fact, in

a September 6, 2007, order awarding Whitlock post conviction relief, a unanimous

Illinois Appellate Court concluded as follows: ‘we further hold that the State violated

Brady by suppressing [evidence] ***.’

For these reasons, your latest request for representation for Mr. McFatridge are

denied.”

¶ 42 In this case, the record shows the Attorney General’s denial of McFatridge’s July 20,

2010, request for payment of attorney fees and litigation expenses took place on August 19,

2010, not in 2005. We note that contrary to the wording of the Attorney General’s letter,

McFatridge’s July 20, 2010, request was for payment of attorney fees and not a request for

the Attorney General’s representation. When the Attorney General responded to

McFatridge’s initial 2005 request for representation, it only declined to represent him and

did not address McFatridge’s choice of counsel or payment of his legal fees if reasonable.

Instead, the Attorney General advised McFatridge would be indemnified for any judgment

and reimbursed reasonable attorney fees only if the trier of fact found the acts complained

of were not intentional, wilful, or wanton misconduct (presumably a reference to the

limitations found in paragraph one of section 2(b) of the Act).

¶ 43 According to the record before us, McFatridge had not specifically requested the State

pay for his litigation expenses and attorneyfees because he was an elected official. Likewise,

it was not until August 2010 that the Attorney General denied McFatridge’s paragraph two,

section 2(b) request. Accordingly, the statute of limitations would have begun to run in

August 2010, i.e., when his specific request for payment of litigation expenses and attorney

fees was denied. McFatridge filed his mandamus complaint on August 30, 2010, well within

the five-yearstatutory period provided for by section 13-205 of the Procedure Code. We note

even if we were to use the Attorney General’s May 2009 denial of Sullivan’s request that the

State pay at least two-thirds of Edgar County’s legal expenses as the date the action accrued,

McFatridge’s mandamus complaint would still have been filed within the five-yearstatutory

period. Accordingly, the Attorney General’s argument McFatridge’s complaint is barred by

the statute of limitations fails.

¶ 44 D. Sovereign Immunity

¶ 45 The Attorney General also argues McFatridge’s mandamus complaint is barred by

sovereign immunity to the extent it seeks to control the Attorney General’s exercise of

discretion. McFatridge replies, arguing sovereign immunity is not at issue in this case

because the Attorney General was without discretion to deny his request for reimbursement.

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¶ 46 “The purpose of sovereign immunity is to protect the state from interference with the

performance of governmental functions and to preserve and to protect state funds.” People

ex rel. Manning v. Nickerson, 184 Ill. 2d 245, 248, 702 N.E.2d 1278, 1280 (1998). An action

seeking money damages against the State must be brought in the court of claims. See Stone

v. Chrans, 142 Ill. App. 3d 235, 237, 491 N.E.2d 830, 832 (1986) (affirming the trial court’s

order striking a portion of a mandamus petition seeking money damages and finding the

court of claims had exclusive jurisdiction over that claim).

¶ 47 However, “the determination of whether a suit is brought against the State and thus

barred by the doctrine of sovereign immunity does not depend on the identity of the formal

parties, but rather on the issued raised and the relief sought.” Senn Park Nursing Center v.

Miller, 104 Ill. 2d 169, 186, 470 N.E.2d 1029, 1038 (1984) (citing Senn Park Nursing Center

v. Miller, 118 Ill. App. 3d 733, 746, 455 N.E.2d 162, 171 (1983)). A suit to compel state

officials to act in accordance with the law is not regarded as an action against the state and

is not barred by sovereign immunity even though the payment of state funds may be

involved. In re Lawrence M., 172 Ill. 2d 523, 527, 670 N.E.2d 710, 713 (1996). Compelling

a state official to act in accordance with the law, even if so acting involves the payment of

state funds, differs from an action seeking actual money damages from the State and the state

official in his official capacity. See, e.g., City of Chicago v. Board of Trustees of the

University of Illinois, 293 Ill. App. 3d 897, 901-02, 689 N.E.2d 125, 128 (1997). “ ‘[A]n

action to compel a public official to perform a clear and mandatory duty is not a suit against

the State.’ ” Senn Park, 104 Ill. 2d at 189, 470 N.E.2d at 1039 (quoting Senn Park, 118 Ill.

App. 3d at 746, 455 N.E.2d at 171-72).

¶ 48 In this case, McFatridge’s mandamus complaint was directed against the Attorney

General in her official capacity and was not a suit against the State. We note this is not a case

where McFatridge has filed a mandamus complaint because the AttorneyGeneral hasrefused

to reimburse all of McFatridge’s claimed litigation expenses on the ground they are

unreasonable. Instead, McFatridge is asking the Attorney General to perform a clear and

nondiscretionary task. For the reasons previously stated, the plain language of section 2(b),

as it pertains to elected officials, only affords the Attorney General discretion to refuse

payment of attorney fees if it finds either (1) the elected official’s choice of counsel

unsatisfactory, or (2) the fees are determined to be unreasonable. Neither instance is at issue

here. Instead, in this case, the Attorney General has refused to pay any of the costs without

regard to a reasonableness determination or an expression of dissatisfaction with

McFatridge’s choice of counsel. Because the Attorney General has no discretion outside of

these matters to deny reimbursement, sovereign immunity cannot be raised as a defense.

¶ 49 E. Former Elected Officials

¶ 50 Finally, the Attorney General argues McFatridge is not an elected state official for

purposes of the Act because he is no longer serving as State’s Attorney. We are unpersuaded.

¶ 51 As previously stated, counsel agreed the number of elected state officials covered in the

second paragraph of section 2(b) is comprised of the members of the General Assembly, the

constitutional officers, and the elected State’s Attorneys. While we question how frequently

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a member of the General Assembly would be subject to a section 1983 claim, we can easily

conceive of many scenarios where federal civil rights claims are brought against former

State’s Attorneys for actionstaken during theirtenure. Further, those claims brought pursuant

to section 1983 would necessarily involve claims of intentional, wilful, and wanton

misconduct.

¶ 52 According to the AttorneyGeneral’s position, if an elected State’s Attorneyretired or lost

an election during the pendency of the litigation, or simply had a claim brought against him

or her a day after leaving office, he or she would lose the right to have the State pay for the

counsel of his or her choosing. Such situations would provide inconsistent and absurd results.

A reviewing court is “not bound by the literal language of a statute if that language produces

absurd or unjust results not contemplated by the legislature.” In re Donald A.G., 221 Ill. 2d

234, 246, 850 N.E.2d 172, 179 (2006). When the legislature used the word “is” in the

sentence “In the event the defendant in the proceeding is an elected State official,” it was

merely differentiating that class of employee–elected state officials–from the thousands of

other state employees without the special protection of being able to hire their own counsel

at State expense. It was not limiting the protection of the statute only to present elected state

officials. Here, McFatridge is clearly being sued for actions he took in prosecuting Steidl and

Whitlock while the elected State’s Attorney of Edgar County. It is clear the General

Assemblymeant to protect elected State’s Attorneys in the second paragraph of section 2(b).

Accordingly, the Attorney General’s argument fails.

¶ 53 III. CONCLUSION

¶ 54 For the reasons stated, we reverse the trial court’s order granting the Attorney General’s

motion to dismiss McFatridge’s mandamus complaint.

¶ 55 Reversed.

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