The opinion of the court was delivered by: SHADUR
MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE
Eugenia Santiago and a group of other plaintiffs have sued Richard M. Daley ("Daley"), charging violations of plaintiffs' constitutional rights by conduct Daley engaged in when he was Cook County State's Attorney. To the extent that this action is leveled against Daley in his individual capacity rather than an "official capacity" claim, Daley's later election as Chicago's Mayor has no effect on plaintiffs' claims. And to the extent that Daley is also named in his official capacity, this Court's August 31, 1989 memorandum opinion and order granted plaintiffs' motion under Fed R. Civ. P. ("Rule") 25(d)(1) for the substitution of his successor as State's Attorney, Cecil Partee ("Partee"), as a defendant in place of Daley.
Daley, represented by an imaginative Special Assistant State's Attorney, has made more than one unsuccessful effort to get out of the case (in both capacities) in a number of ways. This Court's August 31 opinion rejected his attempt to escape individual liability as a matter of law, so that both Daley and Partee are now defendants. Only one last college try remains (made on Partee's behalf, though in Daley's name): a Rule 56 motion for summary judgment on the official capacity claims, predicated on the notion that the State's Attorney is equivalent to the State of Illinois and is therefore not a suable "person" under 42 U.S.C. § 1983 ("Section 1983").
Whether the State's Attorney is indeed the legal equivalent of the State itself is, of course, a matter of Illinois law. And that question clearly calls for a "no" answer. It was first presented to the Illinois Court of Claims almost exactly a half century ago, and here is what that court said in Cram v. Illinois, 11 Ill. Ct. Cl. 282, 285 (1940):
Although the State's Attorney represents the People of the State of Illinois in all criminal proceedings in his county, yet he is not considered a State officer. In the case of Cook County v. Healy, 222 Ill. 310, [78 N.E. 623], the court, on page 316, in considering the status of the State's Attorney of Cook County, said:
"The State's attorney is a county officer, and his status, as such, is fixed by the Constitution which creates his office. He is elected for and within a county to perform his duties therein and is not distinguished in any manner from the clerks of the courts, the sheriff, coroner, and other officers connected with the administration of justice within the county."
The Healy case was quoted with approval in the case of The People v. Newcomer, 284 Ill. 315, [120 N.E. 244], where the court, on page 324, citing the Healy case, said:
"The State's attorney is a county officer elected for and within a county to perform his duties therein and is by statute charged with certain duties."
The State's Attorney being a county officer, the mere fact that money was advanced to him for expenses in a criminal case, even under a promise to return the same, does not give a right of action against the State. If any right of action exists, it is against the officer who received the money and promised to return the same.
Something over a decade later the question again came before the Court of Claims in Montgomery v. Illinois, 21 Ill. Ct. Cl. 205 (1952), this time presenting a context conceptually identical to that posed by the present case. There a convicted state felon had filed a successful federal habeas corpus challenge to his conviction, based on the State's Attorney having suppressed evidence and having introduced false testimony, thus depriving the defendant of due process. After the conviction and sentence were invalidated, the freed convict sued in the Court of Claims "seeking to recover the sum of $ 250,000.00 for unlawful indictment, conviction, sentence and incarceration at the hands of the State of Illinois" ( id. at 206).
Montgomery, id. at 207 posed the issue in these terms:
The claim presented here is based on the same set of facts [as the federal habeas case]: namely, the wrongful acts of the State's Attorney. The pertinent inquiry is: "Can the State of Illinois be liable for the wrongful acts of a State's Attorney?" If a suit were presented in a court of record, and if the State were suable, on the theory that a violation of the Constitution was a "claim founded on a law of the State," it would be necessary to determine ...