## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

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

Appellate Court Caption MI CHAEL M. McF ATRI DGE and THE C OUNTY OF EDGAR, Plaintiffs-Appellants, v. L I SA M. MADI GAN, Att o rn ey Gene ral, Def endant- Appellee

.

District & N o. Four th District Docke t No. 4-10-0936

Filed Dec ember 14, 2011

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The trial court err ed in dismiss ing plaintiffs’ co m p laint for mandamus seeking an orde r direc ting the Attorney Gene ral to a pprove pay

ment for the rea sonable litigation expenses incurre d by plaintiff, a for mer State’s Attorney
, in defe nding actions for mal i ci ous prosec ution, false im p ris o nme nt, a

n d inte ntional infliction of emotional distress filed by tw o persons plaintiff succe ssfully prosec uted for murder and arson who wer e later relea sed from cus t o d y , since the complaint alleg ed sufficient fac ts to show a clea

r rig ht of rec overy on plaintiff’s part and a clea r duty on the part of the Attorney Gene ral u n d er s ec t ion 2(b) of the State Employ ee Indemnification Act.

Dec ision Under Review Appea l from the Circuit Court of Sang amon County
, No. 10-MR-530; the Hon. Patrick J. L ondrig an, Judge, pr esiding

.

J udg ment Reverse d.Counsel on

Appea l Michae l E. Raub (ar gued), of Hey l, Roy ster, Voelker & Allen, of Urba na, and Terr y L

. Ekl (ar gued), of Ekl Wil liams, PL L C, of L is l e, fo r appellants.

L isa Madig an, Attorney Gene ral, of Chicag o (Mich ae l A. Scodro (ar gued), Solicit o r Gene ral, and Br ian F. Ba rov, Assistant Attorney Gene ral, of c ounsel), for

appellee

.

Panel J USTI CE POPE delivered the judg ment of the c ourt, with opinion.
J ustices Steigma

nn and Kne cht conc urre d in the judgme nt and opinion.

OP INION

¶ 1 I n Au gu s t 2 0 1 0
, p l ai ntiffs, Michae l M. McF atridg e and Edg ar C o u n t y , I l l i n o i s (McF atridg e), f

iled a complaint for mandamus relief seeking an orde r direc ting de fenda nt, L isa M. Madig an, the I llinois Attorney Gene ral (Attorney Gene ral), to approve pay ment for

rea sonabl e litigation expenses incurre d in the defe nse of two civil actions filed ag ainst plaintiffs by

Gordon “ Randy” Steidl and Her bert Whitlock. ¶ 2 In October 2010, the t rial court dismiss ed plainti ffs’ com plaint, finding it did not state fac ts “nec essar

y to establish a clea

r and undoubted rig ht to relief soug ht and a corr esponding duty on the part of the [Att orney Gene ral] to perf orm the act demande d.” The trial court did not provide any

rationale for its ruling

. ¶ 3 P l ai n tiffs appea l, arguing the trial court err ed in dismiss ing the mandamus complaint wher e the complaint pleade d sufficie nt fac ts to show a clea r right of rec overy on the part of McF atridg e and a clear duty on behalf of t he Attorney Gene ral because section 2(b) of t he State Employ ee Indemnification Act (Ac t) (5 I L CS 350/2(b) (West 2 0 08)) require s the Attorney Gene ral to provide f

or McF atridg e’s de fense costs. We reve rse.

¶ 4 I . BA CKGROUND ¶ 5 Be tween 1980 and 1991, McF atridg e serve d as t h e S tate’s Attorney of Edg ar County
, I llinois

. In 1987, McF atridg e succe ssfully prosec uted Steidl and Whit lock for murder. Steidl

was convicted of the murders of both Dy ke Rhoads and Kar en Rhoads and re ce i ved a sentenc e of death, which was later reduc ed to natura l life in prison. Whit lock was convicted of murder ing K are n Rhoads and sente nced to life in prison. ¶ 6 In J une 2003, the United State District Court f or the Central District of I llinois g rante d Steidl’s habeas corpus petition, vaca ted Steidl’s conviction, and g ave the State 120 day s to either r elea se or r etry

Steidl. Steidl v. W

alls , 267 F. Supp. 2d 919, 940-41 (2003). In 2007,

-2-this court g rante d Whit lock’s p o s t t ri al m otion and order ed his rele ase or retria l. People v.

W hitlock
, No. 4-05-0958 (Sept. 6, 2007) (unpublished order under Supreme Court Rule 23). Both Steidl and Whit lock have since been rele ased from custody and have not been retrie d. ¶ 7 In May 2005, Steidl filed a complaint in the United States District Court for the Central District of I llinois pursuant to, inter alia
, section 1983 of the Civil Rights Act (42 U.S.C. § 1983 (2000)) ag ainst a number of officia ls invol v ed i n h is prosec ution, including M c F atridg e and Edg ar County

. Steidl’s complaint all e g e d s e v e r a l c laim s , in c lu d in g ma li c io u s prosec ution, false imprisonment, and intentio n a l in f li c ti o n o f e mo ti o n a l d is tr e s s

. Sp e c if ically
, Steidl alleg ed he was tried and convicted of murder and arson and sentenc ed to death based on false e vidence which wa s fabricated, c oerc ed, and ma nipulated by

McF atridg e. ¶ 8 In J une 2005, McF atridg e re q u es t ed t h e I llinois Attorney Gene ral repre sent him in the Steidl li tiga

tion pursuant to section 2 of the Ac t (5 I L CS 350/ 2 (West 2008)). ¶ 9 In a J uly 6, 2005, letter, the Attorney Gene ral declined McFat ri d ge’ s request on the
g round “the acts or omissions which g ive rise to plaintiff’s claim involve alleg atio n s of intentional, wilful or wanton misconduct on your par t.” The le tter also stated, “ I f t he court or j ury find th at t h e acts complained of were not intentional, wilful or wanton misconduct
y ou will be indemnified for any judgme nt and rea sonable attorney s’ fee s will be reimburse d as provided by

law.” ¶ 10 In April 2009, Whit lock filed an amende d complaint in fede ral court ag ainst McF atridg e and Edg ar County
, alleg ing claims simil ar to those contained in Steidl’s complaint. Both Whit lock’s and Steidl’s lawsuits soug ht to hold Edg ar County financ ially responsible for any judgme nt entere d ag ainst McFatridg e bec ause Mc Fa tridg e wa s its e mploy ee. Acc ordingto the par ties, both actions are curr ently pendingin fede ral district cour t. ¶ 11 In Marc h and April 2009, then Edg ar County S t at e’ s At t o rn ey M at t h ew S u l l i van reque sted the Attorney Gene ral repr esent McF atridg e in the Steidl and Whit lock litigation. Sulli van also a sked the State to pay at least two-thirds of

Edg ar County ’s leg al expenses. ¶ 12 On May 6, 2009, the Attorney Gene ral denied both of Sulli van’s reque sts. The Attorne y Gene ral declined to repr esent McF atridg e beca u s e h is a c ts o r o mi s s io n s “ involved alleg ations

o f in te nti o n a l, w ilful or wanton misconduct.” The Attorney Gene ral stated McF atridg e would be reimburse d for rea sonable attorney fee s “if a court or jury [finds] the acts complained of

wer e not intentional, wilful or wanton.” The Attorney Gene ral also denied Sulli van’s reque st to pay Edg ar County ’s leg al fee s beca use the Attorney Gene ral “does not repr esent counties and other units of local g overnme nt.” ¶ 13 I n a J u l y 2 0
, 2010, letter to the Attorney Gene ral, Terr y Ekl, McF atridg e’s r etaine d counsel, wr ote the following : “Steidl filed suit in 2005 and Whit lock filed suit in 2008 shortly afte r his rele ase from custody

. Two insurance car riers, Scotts d ale Insuranc e and Whit e Mountain Insuranc e, have been defending this matter under a rese rvation of r ights for sever al y ear s and had
ag ree d to pay our att o rn ey ’s fee s. Scottsdale was rec ently succe ssful in winning a decla ratory judgme nt suit in connec tion with their duty to defe nd as well as indemnification for any judgme nt obtained ag ainst Mr. McF atridg e. Scottsdale informed

us that as of May 12, 2010[,] they will no longe r be funding the defe nse of McF atridg e.

-3-Whit e Mountain rec ently informed McF atridg e in writing that they will no longe r pay the costs of his defe nse as of

J une 30, 2010.
P u rs u an t to 5 I L CS 350/2, as the elec ted State’s Attorney of Edg ar County
, perf orming acts within his officia l capa city
, he is entitled to have the expenses of his d ef en s e i n cl uding attorney fee s paid by the State of I llinois

. My law firm has been involved in this matter for over four (4) y ear s and Mr. McF atrid ge wo u l d ex erc ise his rig ht under 5 I L CS 350/ 2 to have my firm continue to def

end this case to conclusion.” ¶ 14 I n an Au gu st 19, 2010, letter, the Attorney Gene ral ref ere nced its p ri o r d en i al s o f McF atridg e’s pr evious reque sts for re prese ntation and wrote the following : “B y letters dated J une 14 and J une 29, 2005, Mr. McF atridg e reque sted
repr esentation in the Steidl L awsuit. That reque st was denied J uly 6, 2005. For mer S t ate’s Attorney Matthew Sulli van, by letters dated Marc h 12 and April 21
, 2 0 0 9
, reque sted that the State of I llinois provide a defe nse to Mr. McF atridg e in both the Steidl and Whit lock L awsuits, and also asked that the State pay two-thirds of the Edg ar County leg al ex penses in both L awsuits. These r equests we re de nied M ay 6, 2009. The J uly 6, 2005[,] and May 6, 2009[,] denials wer e beca use the acts or omissions which g ave r ise
to Steidl and Whit lock’s claims ag ainst Mr. McF atridg e involved alleg ations of intentional, wilful or wanton misconduct. Wit h these prior denials, Mr. McF atridg e and Mr. Sulli van wer e also t o l d t h at i f a court or jury wer e to find that the acts Steidl and Whit lock complained of did not repr esent intentional, wilful or wanton misconduct, Mr. McF atridg e woul d b e indemnified for any judgme nt, and rea sonable attorney s’ fee s would be re imbursed as provide d by law.
T h e b asis for eac h of y our curr ent August 6 and J uly 20, 2010[,] reque sts are [ sic ] essentially the same. Scottsdale Insuranc e and Whit e Mountain Reinsuranc e had provided Mr. McF atridg e and the County with a defe nse under cer tain insurance policies. Scottsdale’s succe ssful decla ratory ju d gme nt a c ti o n w a s rec ently aff irmed by the Seventh Circuit. Scottsdale there fore will no longe r provide a defe nse to Mr. McF atridg e. Whit e Mountain h as al so said it will no longe r provide a defe nse. I have revie wed the Whit e Mountain and Scottsdale letters denying any further defe nse to Mr. McF atridg e. Fur ther, I have revie wed the District Court decla ratory judgme nt order s denying cover ag e, as well

as the Seventh Circuit opinion aff irming the denial of cover ag e. None of these materia ls found that the acts of which Steidl and Whit lock complain do not repr esent intentional, wilful or wanton misconduc t. Fur ther, in neither of the S teidl or W h i t l o ck lawsuits has a court or jury found t hat Mr. M cF atridg e did not eng ag e in intentional, wilful or wanton misconduct. In fac t, in

a September 6, 2007[,] court order awa rding Whit lock post convict ion relief
, a unanimous I llinois Appellate Court conclude d as follows: ‘we further hold that the State violated Bradyby

suppressing[evidence] ***.’
For thes e rea sons, y our latest reque sts for repr esentation for Mr. McF atridg e are denied.” ¶ 15 On August 30, 2010, McF atridg e filed a complaint for mandamus ag ainst the Attorney Gene ral reque sting an order direc ting the Attorney Ge n era l to “appr ove all rea sonable

-4-litigation ex penses and attorney s’ fees which [McFatridg e] expect s to incur in the defense

of the Steidl and Whitl ock civil suits.” ¶ 16 On October 1, 2010, pursuant to section 2-619.1 of t h e C o d e o f C i v i l P ro ce du re (Proce dure Code) (735 I L CS 5/2-619.1 (West 2008)), the Attorney Gene ral filed a combined motion to dismiss McF atridg e’s complaint under both sections 2-615 and 2-619 (735 I L CS 5/2-615, 2-619 (West 2008)). The section 2-615 motion argued the Attorney Gene ral is aff orded discretion under the Act and mandamus is not a pro p er reme dy to control the exercise of discretion by a state official

. T h e s ection 2-619 motion argued the complaint should be dismiss ed beca use (1) the complaint attempts to control the actions of state officia ls in a m at t er wher e the Attorney Gene ral is g rante d discretion, (2) the complaint is barr ed by the statute of limitations and laches wher e the claim was brought more than five
y ear s afte r t h e Attorney Gene ral denied McF atridg e’s reque st for repr esentation, and (3) McF atridg e’s c laims are ba rre d by sovere ign immunity

. ¶ 17 On Oct o b er 2 1
, 2 0 1 0
, t h e trial court dismiss ed McF atridg e’s complaint pursuant to section 2-619 beca

use it did not state fac ts “nec essar y to establish a clea

r and undoubted rig ht
to relief soug ht and a corr esponding duty on the part of t he [ Attorney Gene ral] to p er fo rm the act demande d.” Howeve r, the trial court failed to pr ovide any rationale for its de cision. (Althoug h the docket sheet reflec ts the court allowe d the s ection 2-619 motion to dismiss
, it appear s the section 2-615 motion to dismis s was allowe d.) ¶ 18 This appea l followed.

¶ 19 I . ANALYSI S ¶ 20 On appea l, McF atridg e argues the trial court err ed in dismiss ing his ma n d a m u s c omplaint wher e the complaint pleade d sufficie nt fac ts to show a clea r rig ht of rec overy on the part of McF atridg e and a clea

r duty on behalf of the At t o rn ey Gene ral. Specifica lly
, McF atridg e contends section 2(b) of the Act require s the Attorney Gene ral to provide for McF atridg e’s defe nse costs. McF atridg e maintains under section 2(b) of the Act, the Attorney Gene ral has no discretion to re fuse to pay his reasona

ble attorne y

fee s. ¶ 21 The Attorney Gene ral argues section 2(b) aff ords the Attorney Gene ral the discretion to deny McF atridg e’s attorney fee s and mandamus cannot be used to control a matter within its discretion. In the alternative, the Attorney Gene ral contends (1) McF atridg e’s ma ndamus complaint was barr ed by (a) the statute of limit ations and (b) sovere ign immu n i ty and (2) McF atridg e is not an elec ted state officia l beca use he is no longe r serving as State’s Attorney

.

¶ 22 A. Standard of Review ¶ 23 “

Mandamus is an ex traordina ry re medy that may be used to compel a public office r to perf orm his officia l duties that do not involve an exercise of discretion.” Ford v. W alker
, 377 I ll. App. 3d 1120, 1124, 888 N.E.2d 123, 127 (2007). Mandamus is not proper to direc t the

manner in which a discretionar y act is perf

ormed even if the judgme nt or discretion has been

err oneous l y ex er ci s ed. Turner-El v. W est , 349 I ll. App. 3d 475, 480, 811 N.E.2d 728, 733 (2004). A c ourt will not gra nt a writ of mandamus unless the moving pa rty demonstrates a

-5-clea r, aff irmative rig ht to relief

, a clea r duty on the part of the opposing party to act, and clea r authority in the opposing party to comply with the writ. W alker
, 377 I ll. App. 3d at 1124, 888 N.E.2d at 127. ¶ 24 The Attorney Gene ral filed a combi n ed m o t i o n t o d ismiss McF atridg e’s mandamus complaint. See 735 I L CS 5/2-619.1 (West 2008). A section 2-615 motion to dismiss (735 I L CS 5/2-615 (West 2008)) attacks the sufficie ncy of the complaint and raises the question of whether the alleg ations of the complaint, when viewed in the light most fa vorable to the nonmoving party , are sufficie nt to state a cause of action upon which relief can be g rante d. Marshall v. Burger King Corp.
, 222 I ll. 2d 422, 429, 856 N.E.2d 1048, 1053 (2006). Be cause

a motion to dismiss under section 2-615 challeng es the leg al sufficie ncy of the complaint by alleg ing defe cts on its fac e, we revie w an orde r ru l i n g o n the motion de novo

. City of Chicago v. Beretta U.S.A. Corp.
, 213 I ll. 2d 3 5 1
, 3 64, 821 N.E.2d 1099, 1110 (2004). In ruling on a section 2-619 motion to dismiss
, “ ‘the trial court must interpre t all pleading s and supporting documents in the light most favor able to the nonmoving party ,’ and it should
g rant the motion ‘if the plain t i ff ca n p ro ve no set of fac ts that would support a cause of action.’ ” Hadley v. Montes
, 379 I ll. App. 3d 405, 407, 883 N.E.2d 703, 706 (2008) (quoting Rodriguez v. Sheriff’s Merit Comm’n of Kane County
, 218 I ll. 2d 342, 349, 843 N.E.2d 379, 382 (2006))

. W e re v i ew de novo the dismiss al of a complaint pursuant to section 2-619. Smith v. W

aukegan Park District , 231 I ll. 2d 111, 115, 896 N.E.2d 232, 235 (2008).

¶ 25 B. Indemnification Act ¶ 26 T h e ce n t ral issue in this important case require s this court to construe section 2 of t h e Act. W e review iss ues of statutory construction de novo

. People v. Ehley
, 381 I ll. App. 3d 937, 943, 887 N.E.2d 772, 778 (2008). When interpre ting a statute, we must “asc erta in and
g ive eff ect to the in t ent of the leg islature.” O’Casek v. Children’s Home & Aid Society of Illinois
, 229 I ll. 2d 421, 440, 892 N.E.2d 994, 1007 (2008). The best evidenc e of that intent is the plain languag e of the statute, and when the languag e o f t h e s t atut e is clea r and unambiguous, this court is bound by that plain languag e. Albee v. City ofBloomington
, 365 I ll. App. 3d 526, 528, 849 N.E.2d 1094, 1096 (2006). “Where the languag e of the statute is clea r and unambiguous, we must apply it as written, without resor t to other tools of statutory construction.” MD Electrical Contractors, Inc. v. Abrams
, 228 I ll. 2d 2 8 1
, 287-88, 888 N.E.2d 54, 58 (2008). Howeve r, if the languag e of a statute is ambiguous, a revie wing court may look to tools of interpre tation to asce rtain the intended meaning of a provision. DeLuna

v. Burciaga
, 223 I ll. 2d 49, 59, 857 N.E.2d 229, 236 (2006) . A statute is ambiguous wher e two wel l -i n fo rmed people could rea ch differ ent conclusions reg arding its languag e. MD Electrical Contractors , 228 I ll. 2d at 288, 888 N.E.2d at 58. ¶ 27 McF atridg e ar gues under the sec ond para g raph of

section 2(b) of the Ac t, the Attorney Gene ral does not possess discretion to ref use pay ment of attorney fee s for elec ted state officia ls. The Attorney Gene ral arg ues pursuant to the fi rs t p arag raph of section 2(b) it possessed the discretion to decline McF atridg e’s reque st for attorney fee s beca use it deter mined the alleg ed acts underly ing the civil claim wer e intentional, wilful, or wanton misconduct. Howeve r, a statute should be rea d as a whole and construed so as to g ive eff ect

-6-to ever y word, c lause, a

nd sentenc e and should not be r ead in a way that would rende r any part superf

luous or meaning less. Kraft, Inc. v. Edgar
, 138 I ll. 2d 178, 189, 561 N.E.2d 656, 661 (1990). Acc ording ly we cannot rea d either para g raph of section 2(b) without considering it in the contextof the Ac t as a whole

. ¶ 28 Secti o n 2 (a ) o f t h e Ac t provides for the repr esentation and indemnification of state employ ees in c ivil actions as follows:
“In the event that any civil proce eding is commence d ag ainst any State employ ee arising
out of any act or omission occur ring within the scope of the employ ee’ s State employ ment, the Attorney

Gene ral shall, upon timely and appr opriate notice to him by such emplo y ee , ap p ea r on behalf of such employ ee and defe nd the action.” 5 I L CS 350/2(a) ( West 2008). ¶ 29 The Act also provides limit ations on the Attorney Gene ral’s re p re s en t at i o n o f st ate employ ees. Pursuant to section 2(b), the Attorney Gene ral “shall decline” to repr esent a state employ ee where
“the Attorney Gene ral deter mines that so appea

ring and defe nding an employee either (1) involves an actua l or potential conflict of inter est, or (2) that the act or omission which
g ave rise to the claim was not within the scope of the employ ees’ s State employ ment or was intentional, wilful or wa nton misconduct.” 5 I L CS 350/ 2(b) ( West 2008). ¶ 30 In the event the Attorney Gene ral decli n e s r e p r esenta tion beca use of an actua l or potential

co n fl ict of interest, the employ ee “may employ his own attorney to appea r and defen d
, i n which event the State shall pay the employ ee’ s court costs, litigation expenses and attorney s’ fee s to the ext ent appr oved by the Att orney Gene ral as rea sonable, a s they are incurre d.” 5 I L CS 350/ 2(b) ( West 2008). ¶ 31 I f the Attorney Gene ral declines re p re s en t at i on on the g round the employ ee’ s act or omission leading to the claim was not within the s cope of employ ment or was intentional, wilful, or wanton misconduct, then only in th e ev ent the trier of fac t finds the employ ee’ s “ac ts or omissions ” wer e within the scope of his employ ment and wer e not t h e re sult of intentional, wilful, or wanton misconduct will the S t at e i n d emnify the employ ee for any damag es awa

rded, court costs, and attorney fee s assessed as any part of any final judgme nt. In addition, the State wou l d also have to reimburse the employee’ s litigation costs and attorney fee s, as approve d by the Attorney Gene ral as rea s o n ab le. 5 I L CS 350/2(b) (West 2008). ¶ 32 Section 1, the “De finitions” section of the Act, define s the term “employee” as including
, inter alia , former

or pre sent elec ted state off icer s. 350 I L CS 350/ 1(b) ( West 2008). ¶ 33 In this case , the Attorney Gene ral declined to repr esent McF atridg e on the gro u n d the underlyin g claim arose from intentional, wilful, or wanton misconduct–presuma bly a ref ere nce to the limit ations found in para g raph one of section 2(b) of the Act. Howeve r, the limit ations in para g raph one of section 2(b) notwithstanding, para g raph two of section 2(b) specific ally

addre sses elec ted state off icials as follows:
“In the event that the defe ndant[
, i

. e. , ‘employ ee,’ ] in the proce eding is an elec ted State officia l, including members of the Gene ral Assembly
, the elec ted State officia l may reta in his or her attorney , pro v i d ed t hat s aid attorney shall be reasonably acc eptable to

-7-the Attorney Gene ral. I

n such ca se, the State shall pay the elec ted State officia l’s court costs, litigation expenses, and atto rn ey s ’ fee s, to the extent approve d by the Attorney Gene ral as rea sonable, as they are incurred .” (Emphase s added.) 5 I L CS 350/2(b) (West 2008). By excluding the more ge nera l cate g ory of nonelect ed employ ees from this para g raph, the Gene ral Assembly demonstrated it intended to cre ate a much narr ower cate g ory of employ ee to t re at differ ently

. See Knolls Condominium Ass’n v. Harms
, 202 I ll. 2d 450, 459, 781 N.E.2d 261, 267 (2002) (whe re both a g ener al and specific statutory provision relating to the

same subject exis t in the same act, we will presume the leg islature intended the more specific provision to g overn)

. Indeed, counsel ag ree d at o ra l argument the term “ele cted State officia l” includes only the 6 statewide constitutional office rs, the 1 0 2 elected State’s Attorney s, and the 176 members of the Gene ral Assembly

. This is a very limit ed class of
actor s, all of whom are elec ted on a partisan basis (which by itself lends rational support for the require ment the State pay for the elec ted officia l’s rea sonable choice of attorney without
reg ard to any exercise of discretion on the part of the Attorney Gene ral who, as a constitutional office r, is a member of that class). I t is rea sonable to conclude the leg islature
soug ht to insulate partisan elec ted officia ls f rom potential withholding of repr esentation or from arbitra

ry denial of pay

ment for attorney fee s when the opposite party i s in control of those decisions. I t is also rea sonable to concl u d e the leg islature would provide specia l protec tion to elec ted State’s Attorney s whose decisions to prosec ute individuals must be able to be made w ithout the threat of f inancial ba

nkruptcy should they

be sued. ¶ 34 The second para g raph of section 2(b) does not contain the limit ing languag e found in the first para g raph of secti o n 2 (b). Instead, this para graph provides elec ted officia ls with the rig ht
to employ the counsel of their choosing and limit s the Attorney Gene ral’s discretion in this
reg ard to whether the elec ted officia l’s choice of counsel and the attorney fee s are rea sonable. In the absenc e o f either of these enumer ated deter minations, the Act mandates “the State shall pay the elec ted State officia l’s court costs, litigation expenses, and attorney s’ fee s *** as they are incurre d.” 5 I L CS 350/ 2(b) ( West 2008). ¶ 35 We note the Attorney Gene ral’s argument would be strong er if the second para g raph of section 2(b) appea

red in section 2(a)
, rathe r than in section 2(b). I f that wer e the case , the Act would provide all state employ ees rec eive the Attorney Gene ral’s repr esentation, but in the
event y ou are an elec ted state officia l, you may reta in counsel of your choosing

. Then both those elec ted and nonelec ted would be subjec t to the limit ations on the Attorney Gene ral’s
repr esentation found in para g raph one of section 2(b), i .e. , conflicts of interest and intentional, wilful, or wanton misconduct finding s. ¶ 36 In this case , h o we v er , t h e only require ment found in section 2(b) relating to electe d officia ls is that their choice of attorney and the fee s ch ar g ed by that attorney are

rea sonable–nothing more. I f the Gene ral Assembly wanted to impose additional restric tions and limit ations on the State’s obligation to pay for an elec ted officia l’s court costs, litigation
expenses, and attorney fee s, it would have so stated. I t did not. Instead, the plain languag e of the second para g raph of section 2(b) provides McF atridg e with a clea r, aff irmative rig ht
to reimburse ment of his leg al costs as they are incurre d, reg ardle ss of any deter mination by the Attorney Gene ral of intentional, wilful, and wanton misconduct. Acc ording ly
, the State

-8-is obligated to pay McF atridg e’s court costs, li t i gat i o n ex penses, and attorney fee s to the

extent the Attorney

Gene ral de termines those c harg es ar e re asonable

.

¶ 37 C. St atute of L imitations ¶ 38 In the alternative, the Attorney Gene ral argues McF atridg e’s mandamus complaint was time-barr ed by the five-y ear limit ation period found in the “ catc h-all” pr ovision of section 13-205 of the Procedur e Code. 735 I L CS 5/13-205 (W est 2008) (“a ll civil actions not otherwise provided for, shal l b e commence d within 5 y ear s next afte r the cause of action

acc rued” ). Specifica lly
, the Attorney Gene ral contends McF atridg e’s claim acc rued on J uly 6, 2005, when the Attorney Gene ral denied his initial reque st for repr esentation and there fore his Aug ust 30, 2010, mandamus complaint was not timely filed. ¶ 39 McF atridg e argues t he five-y ear statute of l imitations is not at i ssue i n th i s ca s e wher e the Attorney Gene ral did not deny his reque st to have the State pay for his litigation expenses and attorney fee s until August 19, 2010, and he filed his complaint on August 30, 2010. We
ag ree with McFatridg e. ¶ 40 In a J uly 20, 2010, letter to the Attorney Gene ral, McF atridg e’s reta ined counsel, wr ote in releva nt part, the following : “Pursuant to 5 I L CS 350/2, as the elec ted State’s Attorney of Edg ar County
, perf orming acts within his officia l capa city
, he i s entitled to have the expenses of his defe nse including attorney fee s paid by the State of I llinois

. M y l aw fi rm has been i n v o l v ed in this matter for over four (4) year s and Mr. McF atridg e would exercise h i s rig ht under 5 I L CS 350/ 2 to have my firm continue to def

end this case to conclusion.” ¶ 41 In an August 19, 2010, l et t er , t h e At t o rn ey Ge n eral ref ere nced its prior denials of McF atridg e’s pr evious reque sts for re prese ntation and wrote the following : “B y letters dated J une 14 and J une 29, 2005[,] McF atridg e reque sted repr esentation in the Stei d l l aw s u i t

. That reque st was denied J uly 6, 2005. For mer State’s Attorney Matthew Sulli van, by letters dated Match 12 and April 21, 2009, reque sted that the State of I llinois provide a defe nse t o [McFatridg e] in both the S teidl and W hit l ock lawsuits, and also asked that the State pay two-thirds of the Edg ar County leg al expenses in both L aw s u i t s

. These reque sts wer e denied May 6, 2009. The J uly 6, 2005[,] and M ay 6
, 2009[,] denials wer e beca use the acts or omissions which g ave rise to Steidl and Whit lock’s claims ag ainst [McFatridg e] involved alleg ations of int enti onal, wilful or wanton misconduct. Wit h these prior denials, [McFatridg e] and Mr. Sulli van wer e also told that if a court or jury wer e to find that the a cts Steidl and W hitlock complained of did not repr esent intenti o n al, wilful or wanton misconduct [McFatridg e] would be indem n i fi ed for any judgme nt, and rea sonable attorney ’s fee s would be reimburse d as provided by

law. The basis for y our curr ent August 6 and J uly 20, 2010[,] reque sts are [ sic ] essentially the same. Scottsdale Insuranc e and Whit e Mou n t ai n Reinsuranc e had provided Mr. McF atridg e and the County with a defe nse under cer tain insurance policies. Scottsdale’s

succe ssful decla

ratory judgme nt action wa s rec ently aff irmed by the Seventh Circuit. Scottsda le th e r e f

o r e will no longe r provide a defe nse to Mr. McF atridg e. Whit e Mountain

-9-has also said it will no longe r provide a defe nse. I have revie wed the Whit e Mountain and S co ttsdale letters denying any further defe nse to Mr. McF atridg e. Fur ther, I have revie wed the District Court decla ratory judgme nt order s deny ing cover ag e, as well as the Seventh Circuit opinion aff irming the denial of cover ag e. None of these materia ls found that the acts of which Steidl and Whit lock complain do not repr esent intentional, wilful

or wa nton misconduct.
Fur ther, in neither of the S teidl or W hitlock lawsuits has a court or j u ry fo u nd that Mr. M cF atridg e did not eng ag e in i ntentional, wilful or wanton misconduct. In fac t, in

a September 6, 2007, order awa rding Whit lock post conviction relief
, a u nanimous I llinois Appellate Court conclude d as follows: ‘we further hold that the State violated Bradyby suppressing[evidence] ***.’
Fo r t h ese rea sons, y our latest reque st for repr esentation for Mr. McF atridg e are denied.” ¶ 42 In this case , the rec ord shows the Attorney Gene ral’s denial o f M cF at ri d ge’s J uly 20, 2010, reque st for payme nt of attorney fee s and litigation expenses took place on August 19, 2010, not in 2005. We note that contra ry to the wordin g o f t h e At torney Gene ral’s letter, McF atridg e’s J uly 20, 2010, reque st w as for payme nt of attorne y

fee s and not a reque st f

or the Attorney Gene ral’s repr esentation. When the Atto rn ey Gene ral responde d to McF atridg e’s initial 2005 reque st for repr esentation, it only declined to repr esent him and did not addre ss McF atridg e’s choice o f co u n s el or pay ment of hi s leg al fees i f reasonable

. Instead, the Attorney Gene ral a dvised McF atridg e would be inde mnified for any judgme nt and reimbursed reasonable attorney fee s only i f t h e t ri er of fact found the acts complained of wer e not intentional, wilful, or wanton misconduct (pre sum ab l y a ref ere nce to the limit ations found in para g raph one of sec tion 2(b) of the A ct). ¶ 43 Acc ording to the record before us, McF atridg e had not specific ally reque sted the S tate pay for his litigation expenses and attorney fee s beca use he was an elec ted officia l. L ikewise, it was not until August 2010 that the Attorney Gene ral denied McF atridg e’s para g raph two, section 2(b) reque st. Acc ording ly
, t h e s t at u t e of limit ations would have begun to run in August 2010, i.e.
, when his specific reque st for pay ment of litigation expenses and attorney fee s was denied. McF atridg e filed his mandamus complaint on August 30, 2010, well within the five-year statutory period provided for by section 13-205 of the Procedur e Code. We note

even if we wer e to use the Attorney Gene ral’s May 2009 denial of Sulli van’s reque st that the State pay at least two-thirds of Edg ar County ’s leg al expenses as the date the action acc rued, McF atridg e’s mandamus complaint would still have been filed within the five-year statutory period. Acc ording ly
, the Attorney Gene ral’s argument McF atridg e’s complaint is barr ed by the statute of limitations fails.

¶ 44 D. Sovere ign Immunity ¶ 45 The Attorney Ge n er al al s o ar gu es McF atridg e’s mandamus complaint is barr ed by

sovere ign i m m u n i t y to the extent it seeks to control the Attorney Gene ral’s exercise of discretion. McF atridg e replies, arguing s o v er ei gn immunit y is not at issue in this case beca use the Attorney Gene ral was without discretion to deny his reque st for reimburse ment.

-10-¶ 46 “The p u rp o s e of sovere ign immunit y is to protec t the state from interfe renc e with the

perf ormanc e of g overnme ntal functions and to pr eser ve and to protec t state funds.” People

ex rel. Manning v. Nickerson
, 184 I ll. 2d 245, 248, 702 N.E.2d 1278, 1280 (1998). An action seeking money damag es ag ainst the State must be broug ht in the court of claims. See Stone

v. Chrans
, 142 I ll. App. 3d 235, 237, 491 N.E.2d 830, 832 (1986) (af firming the trial court’s order striking a portion of a mandamus petition seeking money d am ages and finding the court of c laims had exclusive jurisdiction over that claim). ¶ 47 Howeve r, “the deter mination of whether a su i t i s b ro u gh t aga i n s t the State and thus barr ed by the doctrine of sovere ign immunit y does not de pend on the identity of the formal parties, but rather on the issued r aised a nd the re lief sought.” Senn Park Nursing Center v. Miller
, 104 I ll. 2d 169, 186, 470 N.E.2d 1029, 1038 (1984) (citing Senn Park Nursing Center

v. Miller
, 118 I ll. App. 3d 733, 746, 455 N.E.2d 162, 171 (1983))

. A suit to compel state officia ls to act in acc ordanc e with the law is not reg arde d as an action ag ainst the state and i s n o t barr ed by sovere ign immunit y even though the pay ment of state funds m ay b e involved. In re Lawrence M.
, 172 I ll. 2d 523, 527, 670 N.E.2d 710, 713 (1996). Compelling a state of ficial to ac t in acc ordanc e with the l aw, even if so ac ting involves the pa y ment of
state funds, differ s from an action seeking actua l money damag es from the State and the state officia l in his officia l capa city

. See, e.g. , City of Chicago v. Board of Trustees of the Unive r s ity of Illinois
, 293 I ll. App. 3d 897, 901-02, 689 N.E.2d 125, 128 (1997). “ ‘[A] n action to compel a public officia l to perf orm a clea

r and mandatory duty is not a suit ag ainst the State.’ ” Senn Park
, 104 I ll. 2d at 189, 470 N.E.2d at 1039 (quoting Senn Park
, 118 I ll. App. 3d at 746, 455 N.E.2d at 171-72). ¶ 48 In this case , McFat ri d ge’ s ma n d a mu s co mp laint was direc ted ag ainst the Attorney Gene ral in her officia l capa city and was not a suit ag ainst the State. We note this is not a case wher e McF atridg e has filed a mandamus complaint beca use the Attorney Gene r a l h a s r e f u sed
to reimburse all of McF atrid ge’ s claimed litigation expenses on the g round they are

unrea sonable. I n s tead, McF atridg e is asking the Attorney Gene ral to perf orm a clea

r and nondiscretionar

y task. For the rea sons previously stated, the plain languag e of section 2(b),

as it perta ins to elec ted officia l s , only aff ords the Attorney Gene ral discretion to ref use pay ment of attorney fee s if it finds either (1) t h e elec ted officia l’s choice of counsel unsatisfac tory , or (2) the fee s are deter mined to be unrea sonable. Neither instance is at issue here

. Instead, in this ca se, the Attorney Gene ral has ref used to pa

y any of the costs without
reg ard to a rea sonablene ss deter mination or an expression of dissatisfact i o n with McF atridg e’s choice of counsel. Be cause the Attorney Gene ral has no discretion outside of these matter s to deny

reimburse ment, sovere ign immunity cannot be raised a s a def ense.

¶ 49 E. For mer Elec ted Off

icials ¶ 50 Fi n al l y , t h e At t o rney Gene ral arg ues McF atridg e is not an elec ted state officia l f o r purposes of the Act beca

use he is no longe r serving as State’s Attorney

. We are unpersua ded. ¶ 51 As previously stated, counsel ag ree d the number of elec ted state officia ls cover ed in the second para g raph of section 2(b) is comprised of the members of the Gene ral Assembly
, the constitutional office rs, and the elec ted State’s Attorney s. Whil e we question how fre quently

-11-a member of the Gene ral Assembly would be subject to a section 1983 claim, we can easily

conce ive of many scena

rios wher e fede ral civil rights claims ar e b rought ag ainst former State’s Attorney s for acti o n s ta k e n d u rin g th e ir tenure

. Fur

ther, those claims brought pursuant to section 1983 would nece ssarily involve claims of intentional, wilful, and wanton misconduct. ¶ 52 Acc ording to the Attorney Gene ral’s position, if an elec ted State’s Attorney retire d or lost

an elec tion during the pendenc y of the litigation, or simply had a claim broug ht ag ainst him

or her a day afte r leaving office
, he or she would lose the rig ht to have the State pay for the counsel of his or her ch o o s in g

. Such situations would provide inconsistent and absurd results. A revie wing court is “not bound by the literal languag e of a statute if that languag e produce s absurd or unjust results not contemplated by the leg islature.” In re Donald A.G.
, 221 I ll. 2d 234, 246, 850 N.E.2d 172, 179 (2006). When the leg islature u s ed the word “is” in the

s en t ence “In the event the defe ndant in the proce eding is an elec ted State officia l,” it wa s

mere ly differ entiating that class of employ ee–e lected state offic ials–from the thousands of other state employees without the specia l protec tion of being able to hire their own counsel
at State expense. I t was not limit ing the protec tion of the statute only to prese nt elec ted state officia ls. Her e, McF atridg e is clea rly being sued for actions he took in prosec uting Steidl and Whit lock whi l e t h e el ec ted State’s Attorney of Edg ar County

. It is clea r the Gene ral Assembly meant to protec t elec ted State’s Attorney s in the second para g raph of section 2(b). Acc ording ly , the Attorney Gene ral’s a

rgument fails.

¶ 53 I I I . CONCLUSI ON ¶ 54 For the rea sons stated, we reve rse the trial court’s order g ranting the Attorney Gene ral’s motion to di smiss McFatridg e’s mandamus complaint.

¶ 55 Reverse d.

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