Appeal from Circuit Court of Sangamon County No. 10MR530 Honorable Patrick J. Londrigan, Judge Presiding.
The opinion of the court was delivered by: Justice Pope
JUSTICE POPE delivered the judgment of the court, with opinion. Justices Steigmann and Knecht concurred in the judgment and 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 relief sought 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.
¶ 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, 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 People v. Whitlock, No. 4-05-0958 (Sept. 6, 2007) (unpublished order under Supreme Court Rule 23).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, including malicious 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 acts or omissions "involved allegations of intentional, wilful or wanton misconduct." The Attorney General 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 Attorney General 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. White Mountain recently informed McFatridge in writing that they will 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 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 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[,] court order awarding Whitlock post conviction relief, a unanimous Illinois Appellate Court concluded as follows: ...