The opinion of the court was delivered by: MILTON I. SHADUR
Under the Agreement Department undertook to make all payments of the damages for which its officers were liable by reason of their violations of plaintiffs' constitutional rights. Department did so pursuant to the Illinois statute providing for such indemnification (5 ILCS 350/1 and 350/2, formerly Ill. Rev. Stat. ch. 127, PP 1301-1302).
But despite Department's express contractual undertakings in Agreement P 1, it has not honored those commitments as to approximately 100 class members. Instead the Illinois State Comptroller has diverted the payments due to those plaintiffs under the Agreement to the benefit of other state agencies, purportedly acting under 15 ILCS 405/10.05, 10.05a and 10.05b (formerly Ill. Rev. Stat. ch. 15, PP 210.05, 210.05a and 210.05b).
Plaintiff class member Napoleon Hartsfield lodged a letter of complaint on that score with this Court, which this Court in turn transmitted to appointed counsel for the class for their attention. Class counsel have investigated the matter and have now moved to enforce the Agreement. That motion has been fully briefed and is ready for decision. For the reasons stated in this memorandum opinion and order, the motion is granted.
Department advances two arguments in response to the motion--one is essentially the Pontius Pilate defense that Department has no responsibility for the action of the Comptroller as an independent state official (Matthew 27:24), while Department's other contention urges that it is immune under the Eleventh Amendment. Both arguments are devoid of merit and may be dispatched swiftly.
As for the first argument, Agreement P A.1 set out Department's express agreement that it would cause to be paid all the damages (as defined by the Agreement) for which its officers were personally liable. Agreement P C.9 specified when and how Department would make those payments. Having made arrangements for those payments to be made through the Comptroller as its disbursing agent, Department cannot wash its hands of responsibility for violations of the Agreement on the ground that its agent (and not Department itself) had committed the breach.
As for Department's Eleventh Amendment argument, it ignores two controlling doctrines. First, Department as the indemnitor for the individual defendants has stepped into their shoes, so that it cannot interpose any defenses or make any setoffs that were not available to the individuals themselves (see Hankins v. Finnel, 964 F.2d 853, 857 (8th Cir. 1992)).
Second, Hankins, id. at 856 teaches--in a parallel context--that Department's entry into the Agreement itself waived any potential Eleventh Amendment immunity through its conduct (cf. such other waiver-by-conduct decisions as Clark v. Barnard, 108 U.S. 436, 447-48 (1883); Garrity v. Sununu, 752 F.2d 727, 738 (1st Cir. 1984); Paul N. Howard Co. v. Puerto Rico Aqueduct Sewer Auth., 744 F.2d 880, 886 (1st Cir. 1984)). To the same effect, Department's voluntary entry into the Agreement itself waived such immunity (see New York State Ass'n for Retarded Children, Inc. v. Carey, 596 F.2d 27, 39 (2d Cir. 1979)). Indeed, requiring Department to comply with its voluntarily undertaken contractual obligations really involves "vindicating the authority of the court"--the proposition that Department's own Mem. 6 states as an exception to the State's right to Eleventh Amendment insulation, citing MSA Realty Corp. v. State of Illinois, No. 92-2922, 1993 U.S. App. LEXIS 6421 (7th Cir. Mar. 29).
Senior United States District Judge