Opinion
No. 94 C 2240
February 10, 2000
OPINION and ORDER
This matter comes before the court on remand from the Seventh Circuit, which determined that Defendant LaSalle County could defend its potential liability in this action in the district court. LaSalle's potential liability stems from a Consent Decree entered into by Plaintiffs and Sheriff Condie, in his official capacity, which obligated Sheriff Condie to pay Plaintiffs $500,000. For the reasons below, the court finds that LaSalle County (1) is not "directly" liable to Plaintiffs; (2) is not responsible for paying the Consent Decree under the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/9-102; and (3) is not responsible for indemnifying Sheriff Condie under Illinois' Counties Code, 55 ILCS 5/5-1002, entitled "Indemnity of sheriff or deputy." Because the court finds that Plaintiffs fail to establish that LaSalle County should pay them $500,000, the court denies Plaintiffs' Motion to Direct LaSalle County to Pay Under the Consent Decree. Furthermore, because LaSalle County is not a party to the Consent Decree and the Consent Decree does not obligate LaSalle County to pay Plaintiffs, the court also denies LaSalle County's Motion to Vacate the Consent Decree.
I. Background
According to Sheriff Condie, on September 21, 1993, Plaintiffs Margaret Carver and Randall Carmean ("Plaintiffs"), former employees of the LaSalle County Sheriff's Department, served Sheriff Condie with Equal Opportunity Employment Commission Complaints against him. (See Condie Affidavit of Oct. 14, 1996 [doc. no. 44].) After Sheriff Condie forwarded the EEOC Complaints to James Brusatte, a LaSalle County Board Attorney and LaSalle County Assistant State's Attorney, LaSalle County apparently informed Sheriff Condie that it would not represent him in the litigation and that he should obtain his own counsel. (See id.) Also according to Sheriff Condie, on April 15, 1994, he was served with a summons and Plaintiffs' original Complaint, which, upon his own attorney's advice, he forwarded to the LaSalle County State's Attorney's Office. (See id.) Mr. Brusatte again informed Sheriff Condie that LaSalle County would not represent him. (See id.) Apparently, Sheriff Condie then hired his personal attorney to represent him in this litigation.
In the original Complaint, Plaintiffs sued LaSalle County, the LaSalle County Sheriff's Department, and Sheriff Condie pursuant to 42 U.S.C. § 1983 and Title VII (42 U.S.C. § 2000 et seq.), alleging sexual harassment, sexual discrimination, equal protection violations, and retaliation. (See Compl.) More specifically, Carver claimed that Sheriff Condie subjected her to unwelcome sexual advances, lurid comments, and the use of profanity. (See id. ¶ 15.) Carver further alleged that Sheriff Condie stalked her after work hours, harassed her via the telephone, and assaulted her. (See id.) Carver maintained that when she refused to consent to Sheriff Condie's sexual advances, he threatened her with discharge, changed her shift and subjected her to constant criticism and scrutiny in the workplace. (See id. ¶ 16.) Carmean alleged that when he protested to Sheriff Condie and other Sheriff Department employees about Sheriff Condie's inappropriate behavior, Sheriff Condie changed Carmean's work shift to one less desirable, made derogatory remarks about and scrutinized him, and treated him unfairly. (See Compl. ¶¶ 18-19.)
On June 17, 1994, LaSalle County and the LaSalle County Sheriff's Department moved to dismiss the claims against them (see Mot. to Dismiss), which the court granted on June 21, 1994. (See Order of June 17, 1994.) On August 2, 1994, Plaintiffs amended their Complaint and named, as the sole defendant, "Anthony M. Condie, Sheriff," in his official capacity. (See Amended Compl. ¶ 1.)
Two years later, on July 17, 1996, on the day the trial was to begin, Sheriff Condie and Plaintiffs requested that the court enter a Consent Decree consistent with the terms of their settlement agreement. The court then held a conference to discuss the Consent Decree. (See Transcript of July 17, 1996 Proceedings, Mem. in Supp. of Mot. to Quash, Ex. A.) During that discussion, both Plaintiffs and Sheriff Condie agreed that Plaintiffs brought their action against "the Sheriff of LaSalle County as an institution" (id. at 4), and "not against Sheriff Condie as an individual. . . ." (Id. at 5.) While Sheriff Condie's counsel opined that LaSalle County would ultimately pay the judgment (apparently because LaSalle County funds the LaSalle County Sheriff's Department), Plaintiffs and Sheriff Condie agreed that Sheriff Condie would by liable, as a matter of law, to pay the amount of the Consent Decree from the Sheriff Office's budget. (See id. at 6.) Furthermore, the court iterated that the Consent Decree imposed no liability on LaSalle County and that that issue was not before the court. (See id. at 7-8.) After counsel for Sheriff Condie informed the court that he had made a demand upon the LaSalle County Board for the amount stated in the Consent Decree pursuant to the general state indemnification statute, the court again stated that the issue of LaSalle County's liability was not before the court. (See id. at 9.) As noted in its Opinion and Order of December 11, 1996. the court neither expressed approval nor dissatisfaction of the Consent Decree's terms; it merely approved the terms upon which the parties to the suit agreed. See Carver, 1996 WL 718514, at *1.
Similarly, in the court's December 11, 1996 order, the court determined that because Plaintiffs asserted a Title VII discrimination claim, they sued Condie in his official capacity as Plaintiffs' employer. See Carver v. Condie, 1996 WL 718514, at *1 (N.D. Ill. Dec. 11, 1996). However, the court notes that: (1) Sheriff Condie retained his own counsel (see discussion infra at 2); and (2) Plaintiffs' Proposed Jury Instructions provided in the Final Pretrial Order sought punitive damages (see e.g. Final Pretrial Order, Ex. E-1 at Instruction No. 35), a remedy which is typically unavailable when suing governmental units, but available against an individual. But see Kolar v. County of Sangamon of the State of Ill., 756 F.2d 564, 567 (7th Cir. 1985) ("Section [ 745 ILCS 10/]9-102 similarly waives the defendant County's immunity from Section 1983 punitive damage awards."). Despite these apparent inconsistencies, no one related to this suit suggests that Plaintiffs sued Sheriff Condie individually, and thus the court views Sheriff Condie as sued in his official capacity.
On August 12, 1996, the court entered the Consent Decree, awarding $100,000 to Carver on her Title VII harassment claim; $150,000 to Carver on her § 1983 claim; $100,000 to Carmean on his Title VII retaliation claim; and $150,000 to Carmean on his § 1983 claim. All amounts constituted mental anguish and suffering of the Plaintiffs; no punitive damages were awarded.
On August 30, 1996, Plaintiffs filed a citation to discover assets of LaSalle County, the entity that funds the LaSalle County Sheriff Department's budget, pursuant to Illinois Supreme Court Rule 277(a). See Ill. S. Ct. R. 277(a) (allowing a party to commence a supplementary proceeding "with respect to a judgment which is subject to enforcement . . . against the judgment debtor or any third, party the judgment creditor believes has property of or is indebted to the judgment debtor."). LaSalle County attempted to intervene by moving to quash the citation to discover assets and by seeking to set aside the Consent Decree as void. The court found that LaSalle County failed to properly move to intervene and thus had no standing to bring the motion to quash (or any other motion) before the court.See Carver, 1996 WL 718514, at *1. The court further held that even if it considered the motion, LaSalle County failed to demonstrate that the Consent Decree infringed on its rights or interests because (1) LaSalle County was not a party to the Consent Decree; and (2) the court never found LaSalle County liable to Plaintiffs. See id. at *2. The court also denied Plaintiffs' motion to discover LaSalle County's assets because LaSalle County did not possess any of the Sheriff's assets that could apply to the judgment. See id. at *4. The court found that "any monies held by LaSalle County are property of LaSalle County until the County Board authorizes the appropriations or expenditure of funds, by way of annual budget, to the Sheriff."Id.
LaSalle County then moved to alter or amend the court's Order of December 11, 1996, or to allow it to intervene. On June 10, 1997, the court denied LaSalle County's motion. See Carver v. Condie, 1997 WL 321910 (N.D. Ill. June 10, 1997). LaSalle County appealed.
On February 25, 1999, the Seventh Circuit reversed and remanded this matter for further proceedings. See Carver v. Condie, 169 F.3d 469, 474 (7th Cir. 1999). The Seventh Circuit stated that (1) the district court acted too hastily in finding that LaSalle County could not contest its liability under the Consent Decree (see id. at 470); (2) LaSalle County had a sufficient interest in the outcome of a Rule 277 supplementary proceeding and thus "had the right to participate in a Rule 277 proceeding" (id. at 472); and (3) LaSalle County could challenge its liability in the district court. See id. The Seventh Circuit then examined LaSalle County's potential responsibility to pay Plaintiffs under the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/9-102 ("Illinois Tort Immunity Act"), and Illinois' "Indemnity of sheriff or deputy" statute, 55 ILCS 5/5-1002 ("Illinois' Sheriff Indemnity Statute"), noting that it was unclear whether the latter applied to sheriffs in their official capacity. See id. The Seventh Circuit also raised the issue of whether the indemnity statute allowed Illinois counties to intervene in Rule 277 proceedings. See id. Finally, the court noted that "the county strongly suspects that the sheriff's settlement was collusive; the fact that the amount offered leapt from $30,000 to $500,000, and that the $500,000 number happens to be the ceiling in the indemnification statute, raises the county's eyebrows." Id. at 474.
Thus, the case boils down to three basic issues. First, the court must determine if LaSalle County is responsible to Plaintiffs under either Illinois statute. If so, the court must then determine whether LaSalle County's responsibility to Plaintiffs obligates it to automatically pay the $500,000 under the Consent Decree, or if LaSalle County has standing to attack the underlying Consent Decree. See id. If the court finds that LaSalle has standing to attack the Consent Decree, the court must determine whether to vacate the Consent Decree. As noted above, the court finds that LaSalle County is not responsible to pay any sum to Plaintiffs under either the Illinois Tort Immunity Act or Illinois' Sheriff Indemnity Statute. Accordingly, many issues raised by the Seventh Circuit, Plaintiffs, and LaSalle County need not, or cannot, be addressed at this time.
Plaintiffs agree that these three issues now face the court. (See P1.'s Position Statement of Oct. 12, 1999 at 3.) LaSalle County submits that the issues on remand are: (1) whether Sheriff Condie possessed the authority to enter into the Consent Decree which would ultimately be paid from LaSalle County funds; (2) whether this court abused its discretion in refusing to vacate the Consent Decree on the basis of collusion; and (3) whether this court should have allowed LaSalle County to contest the validity of the Consent Decree. (See LaSalle County's Position Statement of Oct. 12, 1999 at 2.)
II. Discussion
A. LaSalle County is not "Directly" Liable to Plaintiffs
In its 1994 Motion to Dismiss, LaSalle County argued that it had no authority to control the conduct of Sheriff Condie or any other employee of the Sheriff's Department. (See Mot. to Dismiss at 3-5.) Specifically, LaSalle County argued that Plaintiffs cannot maintain a Title VII or a § 1983 action against it because the Sheriff's Department "does not create County policy sufficient to hold the County liable for the acts of the Sheriff." (See id. at 3) (citing, inter alia Thompson v. Duke, 882 F.2d 1180 (7th Cir. 1989) (holding that plaintiff cannot maintain a § 1983 action against Cook County for "practices, policies or actions[,]" such as training sheriff's employees or setting sheriff's operating policies, which are unrelated to Cook County).) LaSalle County also maintained that it could not be liable under a respondeat superior theory. (See id. at 5) (citing Monell v. Dept. of Social Serv. of City of N.Y, 436 U.S. 658, 690-691 (1978) (municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue).) On June 17, 1994, the court granted LaSalle County's motion to dismiss. This issue has never been appealed, and no party has re-raised the issue of LaSalle County's "direct" liability to Plaintiffs under Title VII or § 1983.
B. LaSalle County is not Required to Pay Consent Decree Under the Illinois Tort Immunity Act
Plaintiffs now move to direct LaSalle County to pay under the Consent Decree pursuant to the Illinois Tort Immunity Act, 745 ILCS 10/9-102. (See Mot. to Direct LaSalle County to Pay.) That statute provides:
10/9-102. Payment of judgments or settlements — Compromise and settlement of claims
§ 9-102. A local public entity is empowered and directed to pay any tort judgment or settlement for compensatory damages for which it or an employee while acting within the scope of his employment is liable in the manner provided in this Article. All other provisions of this Article, including but not limited to the payment of judgments and settlements in installments, the issuance of bonds, the maintenance of rates and charges, and the levy of taxes shall be equally applicable to judgments or settlements relating to both a local public entity or an employee and those undertakings assumed by a local public entity in intergovernmental joint self-insurance contracts. A local public entity may make payments to settle or compromise a claim or action which has been or might be filed or instituted against it when the governing body or person vested by law or ordinance with authority to make over-all policy decisions for such entity considers it advisable to enter into such a settlement or compromise.745 ILCS 10/9-102 (emphasis added). The court finds that the plain language of § 9-102 requires LaSalle County to pay a tort judgment or settlement for which it or a LaSalle County employee is liable. See 745 ILCS 10/9-102; see also Malone v. Bankhead Ents., Inc., 125 F.3d 535, 539 (7th Cir. 1997) (examining the plain language of the Illinois savings statute in order to determine the intent of the legislature). Plaintiffs apparently agree, stating that § 9-102 "subject[s] local governmental entities to liability for tort judgments or settlements against employees for actions in the scope of employment." (Mot. to Direct LaSalle County to Pay ¶ 7) (emphasis added.) But Plaintiffs never explicitly state, much less argue, that Sheriff Condie is an employee of LaSalle County. Indeed, the court finds that he is not.
In Moy v. County of Cook,, the Illinois Supreme Court discussed whether a sheriff is an employee of the county which he serves for vicarious liability ( respondeat superior) purposes. 640 N.E.2d 926 (Ill. 1994); see also Malone, 125 F.3d at 539 (looking to the Illinois Supreme Court for guidance in interpreting the Illinois savings statute, even though the Court had not expressly decided the issue before the district court). The Moy court concluded that "[t]he sheriff is a county officer and, as such, is not in an employment relationship with the County of Cook." 640 N.E.2d at 931. The court reasoned:
Generally, the distinction between an officer and an employee is determined by a consideration of relevant circumstances, including the nature of the duties, functions or service to be performed and the power granted and wielded . . . The Cook County sheriff bears all of the indicia of an officer. Specifically, the office of sheriff is created by article VII of the Illinois Constitution. (Ill. Const. 1970, art. VII, § 4(c).) In contrast, the employer-employee relationship requires for its existence an employment contract, express or implied. (Lee v. Canuteson (1991), 214 Ill. App.3d 137, 141, 157 Ill. Dec. 900, 573 N.E.2d 318, citing A.J. Johnson Paving Co. v. Industrial Comm'n (1980), 82 Ill.2d 341, 350, 45 Ill. Dec. 126, 412 N.E.2d 477.) Before entering upon the duties of his office, the sheriff is required to take and subscribe the oath or affirmation prescribed by the constitution. (Ill. Rev. Stat. 1991, ch. 34, par. 3 — 6004.) Significantly the sheriff's duty does not arise out of a contract or depend for its duration upon the terms of a contract. (See Midwest Television. [Inc. v. Champaign-Urbana Communications, Inc. (1976)], 37 Ill. App.3d at 931, 347 N.E.2d 34, citing 63A Am.Jur.2d Public Officers Employees § 1 (1984).) Additionally, pursuant to the constitution, the sheriff has "those duties, powers and functions provided by law and those provided by county ordinance." The constitution further provides that "[c]ounty officers shall have the duties, powers or functions derived from common law or historical precedent unless altered by law or county ordinance." (Ill. Const. 1970, art. VII, § 4(d).) Finally, the sheriff is elected for terms of four years (Ill. Const. 1970, art. VII, § 4(c)), and his duties are continuous, without regard to the particular person who holds the office. Based on the presence of these several factors, we conclude that the position of sheriff is an office and not a mere employment. As such, the doctrine of respondeat superior has no application.Moy, 640 N.E.2d at 930. The Seventh Circuit has also found no employment relationship between an Illinois sheriff and the county he serves. See Franklin v. Zaruba, 150 F.3d 682, 696 n. 4 (7th Cir. 1998) (recognizing that while "sheriffs are agents of the county, rather than the state . . . the sheriff is a particular kind of county agent — i.e., an officer rather than an employee"); Ryan, 45 F.3d at 1092 (stating that when a Deputy Sheriff of DuPage County arrested a protester in courthouse for refusing to remove air-filtration mask, dismissal of defendant DuPage County was proper because "Illinois sheriffs are independently elected officials not subject to the control of the county."); Thompson v. Duke, 882 F.2d 1180, 1187 (7th Cir. 1988) ("The Sheriff is an independently-elected constitutional officer who answers only to the electorate, not to the Cook County Board of Commissioners.") (citations omitted).
Moreover, in a case directly on point, the district court inGreen v. Sheahan held that the Sheriff of Cook County is not an employee of Cook County for § 9-102 purposes. See 1998 WL 901681, at *4 (N.D. Ill. Dec. 19, 1998). The Green court, stated: "The Court notes that the 9-102 claim against Cook County fails because the Sheriff of Cook County is not an employee of Cook County, thus Cook County is not liable for any judgments against the Sheriff under 9-102." Id.; cf. Tatum v. Davis, 1996 WL 388405, at *2 (N.D. Ill. July 9, 1996) (addressing a sheriff's immunity as a "public employee" under § 2-204 of the Illinois Tort Immunity Act, and stating, "Under Article VII, Section 4(c) of the Illinois Constitution the Sheriff is an elected `County Officer,' not in an employment relationship with the county."). Given this authority, and that the court found no case law supporting that an Illinois sheriff is a county employee, the court concludes that Sheriff Condie is not a LaSalle County employee for purposes of § 9-102 of the Illinois Tort Immunity Act. Accordingly, LaSalle County is not required to pay the Consent Decree pursuant to § 9-102.
Plaintiffs rely primarily on Kolar v. County of Sangamon, 756 F.2d 564 (7th Cir. 1985) to support the assertion that § 9-102 requires LaSalle County to pay under the Consent Decree. (See Mot. to Direct LaSalle County to Pay ¶ 7.) There is no indication, however, that Plaintiffs cite to Kolar to support any sheriff-as-county-employee argument. Indeed, Plaintiffs apparently cite Kolar only to demonstrate that the Consent Decree falls within the definition of "tort judgment or settlement" for § 9-102 purposes. (See id.) In Kolar, the Seventh Circuit examined whether Sangamon County was liable to pay a judgment entered on a jury's verdict against the Sheriff of Sangamon County under Ill. Rev. Stat. ch. 85, § 9-102 (now 745 ILCS 10/9-102). See Kolar, 756 F.2d at 565. The court discussed whether Ill. Rev. Stat. ch. 85, § 9-102 "authorizes recovery of a Section 1983 judgment obtained against a local public entity employee, acting in the scope of employment, from the relevant local entity." Id. at 566. That statute, like the current § 9-102, provides, "A local public entity is empowered and directed to pay any tort judgment or settlement for which it or an employee while acting within the scope of his employment is liable in the mariner provided in this Article." Id. Ultimately, the court found Sangamon County liable under Ill. Rev. Stat. ch. 85, § 9-102 to pay the § 1983 judgment against the Sheriff of Sangamon County. See id.
However, in reaching this conclusion, the Kolar court examined only one contested issue: whether the § 1983 judgment obtained against the Sheriff of Sangamon County was a "tort judgment" within the meaning of Chapter 85, § 9-102 ("A local public entity is empowered and directed to pay any tort judgment. . . ."). See Kolar, 756 F.2d at 566. The court itself described the strict confines of its review when it stated, "Sangamon County makes no claim that Sheriff Gutschenritter [of Sangamon County] was not acting within the scope of his employment and [the district court judge] expressly concluded in his June 22, 1983 docket entry that the Sheriff was so acting."Id. The court then addressed only the narrow "tort judgment" issue. See id. Thus, the Kolar court presumed, but never addressed, whether the Sheriff of Sangamon County was an employee of the county. See id. Accordingly, Kolar fails to support Plaintiffs' assertion that Sheriff Condie was an employee of LaSalle County. The court notes that the other two cases which Plaintiffs cite, Wilson v. City of Chicago, 120 F.3d 681 (7th Cir. 1997) and Yang v. City of Chicago, 137 F.3d 522 (7th Cir. 1998) (see P1.'s Position Statement at 6), are inapplicable to the "sheriff as county employee" issue because in those cases, the entity found liable under § 9-102 was the City of Chicago, the undisputed employer of the defendant police officers.
Additionally, Plaintiffs argue that
[t]he last sentence of Section 9-102 specifically authorizes the Sheriff, as the person vested with authority to make over-all policy decisions for the institutional Sheriff, to enter into a settlement agreement. Section 9-102 also authorizes the County to make payment if the Sheriff considers it advisable. It is apparent, therefore, that Sheriff Condie had the authority to enter into the consent decree.
(Reply at 4.) But Plaintiffs cite no authority in support of this position. As noted above, the last sentence of § 9-102 states, "A local public entity may make payments to settle or compromise a claim or action which has been or might be filed or instituted against it when the governing body or person vested by law or ordinance with authority to make over-all policy decisions for such entity considers it advisable to enter into such a settlement or compromise." See 745 ILCS § 10/9-102 (emphasis added). Plaintiffs cannot prevail under this provision for several reasons. First, as Plaintiffs acknowledge, "Section 9-102 authorizes the County to make payment. . . ." (Reply at 4) (emphasis added); it does not direct payment, but merely allows a local public entity to settle and pay a claim against that entity if it so chooses. See 745 ILCS § 10/9-102. Second, Plaintiffs point to no law or ordinance that authorizes Sheriff Condie to make over-all policy decisions for LaSalle County. See id. But see Hernandez v. County of DuPage, 1997 WL 598132, at *8 (N.D. Ill. Sept. 19, 1997) (examining sheriff's role as county "policy-maker" for purpose of § 1983 liability and stating that "based on Illinois law, a sheriff is the final policymaker (on law enforcement issues) for the county in which she is elected.").
Furthermore, when Sheriff Condie entered the Consent Decree, his counsel stated, "I do not represent the County of LaSalle, and I am making no representations on behalf of liability with regard to the County of LaSalle to pay this judgment." (See Transcript of July 17, 1996 Proceedings, Mem, in Supp. of Mot. to Quash, Ex. A. at 7.) Thus, Sheriff Condie clearly disclaimed any authority he might have possessed as to LaSalle County when he entered the Consent Decree. See Derrickson v. City of Danville, Ill., 845 F.2d 715, 717 (7th Cir. 1988) ("a consent decree is fundamentally a contract and therefore does not bind a governmental body to any greater degree than a contract") (citing Dunn v. Carey, 808 F.2d 555, 559 (7th Cir. 1986)). Accordingly, § 9-102 of the Illinois Tort Immunity Act fails to bind LaSalle County to pay under the Consent Decree.
The court is also unconvinced that Sheriff Condie was "acting within the scope of his employment" when he harassed Carver and retaliated against Carmean. 745 ILCS 10/9-102. In Argento v. Village of Melrose Park, the Seventh Circuit stated "courts recognize that scope of employment includes those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper one, of carrying out the objectives of employment." 838 F.2d 1483, 1495 (7th Cir. 1988) (citations and internal marks omitted), abrogated on other grounds by Peacock v. Thomas, 516 U.S. 349 (1996). The court further stated that "[w]e are of the view that those actions having an intimate bearing on the duties normally assigned to the office of employment, even though usurped or misused, must be considered as falling within the meaning of the term `scope of employment.'" Id. The Argento court concluded that the defendant police officers in that case, who apparently committed intentional torts against plaintiff, committed acts "pursuant to the arrest of [the plaintiff] while the officers were on duty" and thus acted within the scope of their employment for § 9-102 purposes. Id. However, in a case discussing conduct more similar to Sheriff Condie's, a district court held that the alleged acts of a deputy's sexual misconduct had no relationship to the deputy's responsibility to maintain decorum and safety in the courtroom and did absolutely nothing to further the interests of the Sheriff. See Zupan v. Sheahan, 1996 WL 674021, at *6 (N.D. Ill. Nov. 19, 1996). Accordingly, that court determined that the deputy's actions fell outside of the scope of his employment for 745 ILCS 10/8-101 limitation purposes. See id.
But regardless of this last, unbriefed point, the court finds that the Illinois Tort Immunity Act does not entitle Plaintiffs to collect the amount of the Consent Decree from LaSalle County. The court thus denies Plaintiffs' Motion to Direct LaSalle County to Pay.
C. LaSalle County is not Required to Pay Consent Decree Under Illinois' Counties Code, 55 ILCS 5/5-1002
On appeal, Plaintiffs raised for the first time Illinois' "Indemnity of sheriff or deputy" statute, 55 ILCS 5/5-1002, as an alternative theory of recovery from LaSalle County. Thus, the issue has not been briefed before this court. However, given the clear language of § 5-1002 and the scant case law regarding that statute, the court addresses this issue without further input.
Section 5-1002 provides:
Indemnity of sheriff or deputy. If any injury to the person or property of another is caused by a sheriff or any deputy sheriff, while the sheriff or deputy is engaged in the performance of his or her duties as such . . ., the county shall indemnify the sheriff or deputy, as the case may be, for any judgment recovered against him or her as the result of that injury, except where the injury results from the wilful misconduct of the sheriff or deputy, as the case may be, to the extent of not to exceed $500,000, including costs of action.55 ILCS 5/5-1002. In its Opinion remanding this case, the Seventh Circuit stated that "this statute reads as if it covers indemnification in suits against the sheriff in his individual capacity . . . [,]" see Carver, 169 F.3d at 473, and this court agrees with that reading. While the court found no cases directly addressing whether § 5-1002 indemnified only sheriffs and deputies in their individual, and not official, capacities, the cases that have directly discussed this indemnification statute indicate that the statute indemnifies the individuals, and not the official office. See e.g. Zupan v. Sheahan, No. 95 C 1302, 1996 WL 674021, *6 (N.D. Ill. Nov. 19, 1996) (dismissing indemnification claim against Cook County brought by defendant deputy, as an individual, because deputy not acting within the scope of his employment when he allegedly battered the plaintiff); Spore v. Gibbons, No. 93 C 1577, 1995 WL 622202, *4 (N.D. Ill. Oct. 20, 1995) (discussing whether § 5-1002 applied to suit against two individual police officers). But see Mayes v. Elrod, 470 F. Supp. 1188, 1192 (N.D. Ill. 1979) (stating, generally, that "[a]nother statute impliedly authorizes suits against the sheriff by providing that the county shall indemnify the sheriff for any judgment recovered against him for his non-willful torts."). The court concludes that this statute does not apply to a sheriff in his or her official capacity. The statute makes no mention of the "Office of the Sheriff," the "Sheriff Department," or a sheriff in his "official capacity." Had the legislators wanted this statute to apply to a sheriff in his official capacity, they could, and should, have stated as much.
Additionally, § 5-1002 does not apply where "the injury results from the wilful misconduct of the sheriff or deputy." 55 ILCS 5/5-1002. Although the "willful misconduct" issue has not been briefed, the court doubts that Sheriff Condie's conduct could be characterized as anything but willful.
Additionally, § 5-1002 provides the following notice requirements in order to hold a county liable under this indemnification provision for a sheriff or deputy's conduct:
Any sheriff or deputy, as the case may be, or any person who, at the time of performing such an act complained of, was a sheriff or deputy sheriff, who is made a party defendant to any such action shall, within 10 days of service of process upon him or her, notify the county, of the fact that the action has been instituted, and that he or she has been made a party defendant to the action. The notice must be in writing, and be filed in the office of the State's Attorney and also in the office of the county clerk, either by himself or herself, his or her agent or attorney. The notice shall state in substance, that the sheriff or deputy sheriff, as the case may be, (naming him or her), has been served with process and made a party defendant to an action wherein it is claimed that a person has suffered injury to his or her person or property caused by that sheriff or deputy sheriff stating the title and number of the case; the Court wherein the action is pending; and the date the sheriff or deputy sheriff was served with process in the action, and made a party defendant thereto. The county which is or may be liable to indemnify the sheriff or deputy sheriff, as the case may be, may intervene in the action against the sheriff or deputy sheriff, as the case may be, and shall be permitted to appear and defend. The duty of the county to indemnify any sheriff or deputy sheriff for any judgment recovered against him or her is conditioned upon receiving notice of the filing of any such action in the manner and form hereinabove described.Id. The court again notes that because this issue was raised for the first time on appeal, the Record contains no argument on this point. However, the court finds that neither the Record, Plaintiffs nor Sheriff Condie demonstrate that Sheriff Condie ever complied with the statute's stringent notice provision, much less within "10 days of service of process upon him[.]" Id. The Record provides no indication that Sheriff Condie (1) gave written notice to LaSalle County by April 21, 1994; (2) filed the notice in the office of the State's Attorney; and (3) filed the notice in the office of the county clerk. See 55 ILCS 5/5-1002. Because "[t]he duty of the county to indemnify any sheriff or deputy sheriff for any judgment recovered against him or her is conditioned upon receiving notice of the filing of any such action in the manner and form hereinabove described[,]" (id. (emphasis added)), Plaintiffs' failure to demonstrate that it satisfied the notice requirements dooms their indemnification argument.
Section 5-1002 required Plaintiffs to provide proper notice to LaSalle County April 21, 1994, ten days after the LaSalle County State's Attorney waived service of summons for Sheriff Condie.
D. LaSalle County's Motion to Vacate the Consent Decree
As for LaSalle County's Motion to Vacate the Consent Decree, the court finds no reason to do so. Plaintiffs have presented no authority supporting that LaSalle County is liable or responsible to pay Plaintiffs under the Consent Decree. The court notes that it is highly likely that Illinois county sheriffs, or the counties themselves, settle cases against county sheriffs in their official capacities. The court cannot, and need not now, discern how prevailing plaintiff's collect such awards (be they $30,000 or $500,000) and from whom.
The court notes that in its February 25, 1999 Order, the Seventh Circuit stated that Plaintiffs could "return to the court under Rule 60(b) and seek to withdraw the agreement [the Consent Decree] and litigate their action." Carver, 169 F.3d at 474. The court presumes, however, that if Plaintiffs won at trial (regardless of the award amount), they would run up against the same collection problems they face now.
On April 22, 1997, Plaintiffs filed a Motion for Turn-Over Order. (See Mot. for Turn-Over Order of April 22, 1997.) In that motion, Plaintiffs sought to discover assets (specifically six trucks and unused portions of the Sheriff's budget) of Sheriff Condie. (See id. at 1-2.) On February 17, 1998, the court denied Plaintiffs' motion pending the outcome of LaSalle County's appeal. (See Order of Feb. 17, 1998.) The court added that Plaintiffs could renew their motion after the Seventh Circuit ruled on LaSalle County's appeal. (See id.)
Underlying these issues is whether the court should have protected LaSalle County's potential interests during the Consent Decree discussions. The court again notes that (1) it granted LaSalle County's motion to dismiss it from the case two years prior to the Consent Decree discussions; (2) LaSalle County knew or should have known of its potential liability when it moved to dismiss; (3) LaSalle County was not a party to the case at the time of the discussions; (4) during the discussions, Sheriff Condie's attorney informed the court that he did not represent LaSalle County; and (5) despite an apparent earlier offer of settlement for $30,000, nothing led the court to believe that a later $500,000 agreement between two parties remaining in the case was a collusive agreement to pass the buck to LaSalle County. Under these circumstances, the court sees no reason to question the integrity of, or vacate, the Consent Decree. Nor does the court find that it should have sua sponte examined the potential liability of LaSalle County under Illinois law and protected LaSalle County's "interests."
In sum, at this time, the court sees no reason, legal or otherwise, to re-open the case as to LaSalle County. LaSalle County likely decided that its exposure in this matter was minimal when it refused to represent Sheriff Condie and it declined to contribute to any potential settlement. And at this stage, LaSalle County appears to be correct. The participants chose their paths, some long ago, and the court declines to turn back the clock six years to start again with LaSalle County, an entity that has never been found liable or responsible to pay for Sheriff Condie's actions.
The court notes that, during a discussion of the current application of Monell, 436 U.S. 658, and whether "municipal liability" derived from policy or custom collapses into respondeat superior, a three-Justice dissent noted the lack of clarity regarding the foreseeability of a municipality's liability for an employee's actions. Commissioners of Bryan County v. Brown, 520 U.S. 397, 436 (1997) (Breyer, J., dissenting). More specifically, after the dissent cited, inter alia, Illinois' general municipal indemnification statute (745 Ill. Comp. Stat. § 10/2-302), it stated, "We do not know the pattern of indemnification: how often, and to what extent, States now indemnify their employees, and which of their employees they indemnify." Id.
E. Other Issues Regarding the Case
Having found that Plaintiffs offer no viable mechanism to recover from LaSalle County (neither 745 ILCS 10/9-102 nor 55 ILCS 5/5-1002 entitle them to do so), the court declines to venture further into LaSalle County's responsibility to pay Plaintiffs damages. That said, had Plaintiffs presented a viable theory of recovery from LaSalle County, the court would then be faced with two other issues: (1) whether Sheriff Condie possessed the authority to enter into the Consent Decree to bind LaSalle County; (2) whether the amount in the Consent Decree was collusive. Given that Plaintiffs cannot collect from LaSalle County under either 745 ILCS 10/9-102 or 55 ILCS 5/5-1002, the court need not address these issues, but raises concerns associated with each.
The court notes that on February 17, 1998, it denied Plaintiff's Motion for Turn-Over Order against Sheriff Condie because LaSalle County appealed the denial of its Motion to Vacate the Consent Decree. (See Order of February 17, 1998.) The court stated that Plaintiffs could renew their motion after there was a disposition on appeal. (See id.)
First, Sheriff Condie likely possesses no authority to enter into an agreement which binds LaSalle County to pay the Consent Decree. Additionally, the court notes that during the Consent Decree discussion between Plaintiffs and Sheriff Condie, Plaintiffs and Sheriff Condie both assured the court that the Consent Decree imposed no liability on LaSalle County. (See Transcript of July 17, 1996 Proceedings, Mem. in Supp. of Mot. to Quash, Ex. A. at 7-8). Despite these assurances, two weeks later, Plaintiffs sought to discover assets held by LaSalle County in order to pay the judgment (and later attempted to collect from LaSalle County under the two inapplicable Illinois statutes discussed above). Thus, it appears that when Plaintiffs and Sheriff Condie informed the court that LaSalle County was not liable to pay under the Consent Decree, they indeed intended to force LaSalle County to do just that. Moreover, entering into a $500,000 consent decree in return for dismissing a suit against the sheriff's department is not a duty entrusted to a county sheriff. See Carver, 169 F.3d at 473 ("Conspicuously missing from this list [of an Illinois sheriff's limited powers] is the power to tax and to appropriate monies. . . ."). Given this, Plaintiffs' future attempts to collect the Consent Decree amount from LaSalle County will not be easy.
The court also recognizes the issues surrounding LaSalle County's allegations that the Consent Decree was collusive. Specifically, LaSalle County alleges that "Condie's purpose/motive was obviously to extinguish any possibility of an award of punitive damages against himself and to impose liability on a third party. . . ." (Resp. to Mot. to Direct LaSalle County to Pay at 12.) LaSalle County, however, offers little support for this accusation, and the court again notes that it had removed itself from the case two years prior to the Consent Decree discussions. However, LaSalle County's suspicions are not unfounded. For example, it appears that Sheriff Condie had a personal stake in the suit because he hired his own attorney to represent him; (whether he paid for the attorney from his own salary, the Sheriff Department's budget, or by other means is undisclosed). Furthermore, the preemptive offer of $30,000 to settle the case is curious, but no evidence has been presented to the court that $30,000 (or $500,000 for that matter) is the case's true value. While the court is well aware of the Complaint's allegations and the revelations of discovery, the parties themselves, without any indication by the court, reached their own evaluation of the merits of the case.
Finally, although the court found that LaSalle County (1) could not intervene in the case in order to vacate the Consent Decree,see Carver, 1996 WL 718514, at *2; and (2) possessed no assets of Sheriff Condie that Plaintiffs could discover, see id. at *4, the court never meant to suggest that the court would preclude any arguments made by LaSalle County if Plaintiffs present other theories under which they may collect from LaSalle County. Given the above, LaSalle County will certainly be heard on the issue if Plaintiffs again attempt to collect from LaSalle County. See Carver, 169 F.3d at 473-74.
III. State of Illinois Should Rule
The court recognizes that this opinion does not answer the burning questions: (1) Pursuant to what authority and procedure do Plaintiffs collect under the Consent Decree, if they can at all; and (2) If Plaintiffs cannot collect from LaSalle County, from whom shall they collect? Put another way, if a county and its state's attorney refuse to defend a sheriff sued in his official capacity, is a judgment (or settlement) against the sheriff simply uncollectible? The court finds no Illinois statutory or case law instructive.
The court again notes that on February 17, 1998, it denied Plaintiffs' motion for turn-over order seeking to discover assets held by Sheriff Condie, and stated that Plaintiffs could renew their motion after the Seventh Circuit ruled on LaSalle County's appeal. (See Order of Feb. 17, 1998.)
The court notes that Illinois law provides, "The duty of each State's attorney shall be . . . [t]o defend all actions and proceedings brought against his county, or against any county or State officer, in his official capacity, within his county." 55 ILCS 5/3-9005(4). However, no issue has been raised regarding this statute, and, not surprisingly, the Record reveals nothing as to its applicability to the case at bar.
The court notes that the Illinois legislature may wish to address these issues to avoid similar situations in the future.
The court notes that "`federal court pronouncements on the content of state law inherently involve a significant intrusion on the prerogative of the state courts to control that development.'" The Lexington Ins. Co. v. Rugg Knopp. Inc., 165 F.3d 1087, 1092 (7th Cir. 1999) (quoting Todd v. Societe BIC, S.A., 21 F.3d 1402, 1416 (7th Cir. 1994) (Ripple, J., dissenting on other grounds)). "Accordingly, when a federal court must make predictions about how the highest state court would decide a case in the absence of caselaw directly on point, conservatism is in order in relying on the practice of other jurisdictions even in analagous cases." Id. at 1093. "Lacking any inherent power to make state law such as a state court might have, through interpretation of state statutes or creation of common law rules, a federal court must be careful to avoid the temptation to impose upon a state what it, or other jurisdictions, might consider to be wise policy." Id.; see also Stephan v. Rocky Mountain Chocolate Factory. Inc., 134 F.3d 1134, 1139 (7th Cir. 1998) (noting that "federal courts are disinclined to make departures `in areas of the law that [they] have no responsibility for developing.'") (quoting Change v. Michiana Telecasting Corn., 900 F.2d 1085, 1088) (7th Cir. 1990)).
Given the numerous questions of state law involved with this matter, which extend far beyond the issues decided in this opinion, it may be best left to the Illinois Supreme Court. Seventh Circuit Rule 52 provides, in relevant part:
When the rules of the highest court of a state provide for certification to that court by a federal court of questions arising under the laws of that state which will control the outcome of a case pending in the federal court, this court, sua sponte or on motion of a party, may certify such a question to the state court in accordance with the rules of that court, and may stay the case in this court to await the state court's decision of the question certified.
U.S.Ct. of App. 7th Cir. Rule 52. Furthermore, "Certification to the Illinois Supreme Court is proper when `there are involved in any proceeding before [the Seventh Circuit] questions as to the law of this State, which may be determinative of the said cause, and there are no controlling precedents in the decisions of this court. . . .'" Yang v. City of Chicago, 198 F.3d 630, 632 (7th Cir. 1999) (quoting Ill. Sup. Ct. R. 20). In Yang, the Seventh Circuit certified to the Illinois Supreme Court, interestingly enough, the issue of whether 745 ILCS § 10/9-102 provides for the recovery of attorney fees against municipalities. See id. Put another way, "`certification is appropriate when the case concerns a matter of vital public concern, where the issue will likely recur in other cases, where resolution of the question to be certified is outcome determinative of the case, and where the state supreme court has yet to have an opportunity to illuminate a clear path on the issue.'" Hanlon v. Town of Milton, 186 F.3d 831, 835 (7th Cir. 1999) (citing In re Badger Lines. Inc., 140 F.3d 691, 698 (7th Cir. 1998)). Because the situation at bar meets these guidelines, the court recommends the case be certified to the Illinois Supreme Court. That Court could then determine whether Plaintiffs could recover the amount in the Consent Decree, and, if so, from whom and in what maimer.
IV. Conclusion
For the foregoing reasons, the court finds that LaSalle County is not responsible for paying the Consent Decree under either the Illinois Local Governmental and Governmental Employees Tort. Immunity Act, 745 ILCS 10/9-102 or Illinois' Counties Code, 55 ILCS 5/5-1002. Additionally, the court denies Plaintiffs' Motion to Direct LaSalle County to Pay Under the Consent Decree and also denies LaSalle County's Motion to Vacate the Consent Decree. As this entire litigation now centers around matters of first impression regarding Illinois law, the court recommends that the case be certified to the Illinois Supreme Court pursuant to Seventh Circuit Rule 52.
IT IS SO ORDERED.