The opinion of the court was delivered by: Chief Justice Harrison
Agenda 33-September 2000.
The issue in this case is whether sovereign immunity bars an action against members of the Cook County public defenders office for negligence they allegedly committed in the course of representing Richard Johnson, an indigent criminal defendant, pursuant to an appointment by the circuit court. The circuit court answered this question in the affirmative and granted summary judgment in favor of the public defenders and against Johnson, their former client. The appellate court reversed and remanded for further proceedings. 312 Ill. App. 3d 695. We granted leave to appeal. 177 Ill. 2d R. 315. For the reasons that follow, we now affirm the appellate court.
The record shows that in August of 1991, Richard Johnson was charged with aggravated criminal sexual assault in the circuit court of Cook County. The public defender of Cook County was appointed by the court to represent Johnson. The defense of the case was then assigned to assistant public defender Michael Halloran.
Pretrial discovery obtained from the State included two Chicago police department lab reports. According to those reports, body fluids on the vaginal swab and panties of the victim collected after the crime revealed the presence of H activity, indicating that the fluids were from a person who was a secretor. The blood and saliva samples taken from the victim and from Johnson showed that they were both nonsecretors. Accordingly, Johnson could not have been the sole donor of the foreign body fluids found on the person or clothing of the victim.
Halloran, Johnson's appointed counsel, did not seek to use this information at Johnson's trial. Instead, he presented a motion in limine to prohibit the State from introducing any evidence of blood, semen, or saliva testing. The circuit court granted Halloran's motion in limine on September 4, 1992, and the test results were never placed in evidence.
Following a bench trial, Johnson was convicted in the underlying criminal case and was sentenced to 30 years in the Illinois Department of Corrections. Prior to this conviction, no DNA profile was performed on Johnson, the victim, or the victim's husband.
Johnson subsequently sought relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1994)). In the course of the post-conviction proceedings, DNA tests were performed which exonerated Johnson. Based on those results, Johnson's conviction was vacated on March 8, 1996.
Following his exoneration and release, Johnson brought this legal malpractice action in the circuit court of Cook County. Named as defendants were Halloran, Johnson's trial attorney; Moses Collins, Halloran's supervisor; Shelton Green, supervisor of the public defender's felony trial division; and Rita Fry, the Cook County public defender. Johnson also included a count against Cook County based on respondeat superior.
Defendants moved to dismiss plaintiff's complaint based on the statute of limitations. That motion was denied. Defendants then filed a motion for summary judgment on the basis of sovereign immunity, arguing that public defenders are employees of the state and that the circuit court therefore lacked subject matter jurisdiction to hear this case because plaintiff's claims must be brought in the Illinois Court of Claims. The circuit court granted defendants' motion on May 27, 1998.
Plaintiff appealed, arguing that the circuit court erred in granting summary judgment in favor of the defendants on the basis of sovereign immunity. Defendants cross-appealed, contending that the circuit court erred in finding that plaintiff's complaint was timely filed. The appellate court agreed with the circuit court that plaintiff's complaint was not time-barred. Contrary to the circuit court, however, it held that the claim was not barred by sovereign immunity either. Accordingly, it reversed the entry of summary judgment against plaintiff and remanded for further proceedings.
In reviewing the lower courts' judgments, we begin with an analysis of the defendants' employment status. As previously indicated, the circuit court regarded the individual defendants as employees of the state. They are not. While public defenders and their assistants may exercise sovereign powers in performing their duties (Chief Judge of the Sixteenth Judicial Circuit v. Illinois State Labor Relations Board, 178 Ill. 2d 333, 344 (1997)), the exercise of sovereign power does not, by definition, convert them into state employees. In Illinois, sovereign power is not restricted to the state government. It may also be exercised by home rule units. See Ill. Const. 1970, art. VII, §6(i). Home rule units possess the same powers as the state government, except where such powers are limited by the General Assembly. City of Chicago v. Roman, 184 Ill. 2d 504, 513 (1998). Counties which have a chief executive officer elected by the electors of the county, which Cook County does, are home rule units. Ill. Const. 1970, art. VII, §6(a).
By statute, the office of public defender is created in the Counties Code (see 55 ILCS 5/3-4000 et seq. (West 1996)), and the public defender systems in Illinois are organized and operated at the county level (55 ILCS 5/1-1001 (West 1996)). In counties with a population over 1 million, which Cook County has, the public defender is appointed by the president of the county board of commissioners with the board's advice and consent. 55 ILCS 5/3-4004.1 (West 1996). The board sets the rate of compensation for the public defender and the public defender's assistants, clerks and employees, and that compensation is paid out of the county treasury. 55 ILCS 5/3-4004.2(d), 3-4008.1 (West 1996). The board is also responsible for providing suitable office quarters for the public defender and for paying, from the county treasury, necessary office, travel and other expenses incurred by the public defender in the defense of cases. 55 ILCS 5/3-4009 (West 1996).
The power to remove the public defender is vested in the president of the county board where, as here, the population of the county exceeds 1 million. 55 ILCS 5/3-4004.2(c) (West 1996). In addition, section 5-1003 of the Counties Code (55 ILCS 5/5-1003 (West 1996)) provides that the county is required to indemnify the public defender or assistant public defenders for any judgment rendered against them for any injury to person or property they cause while engaged in the performance of their duties, except where the injury results from willful misconduct.
Based upon the foregoing provisions, the office of public defender must be regarded as a county office rather than as an agency of the state. Our court has expressly so held. Doherty v. Caisley, 104 Ill. 2d 72, 79 (1984). Public defenders and their assistants are ...