Do The Taxpayers HAVE To Pay Elected Officials' Legal Fees?

Our second new grant of the May term at the Illinois Supreme Court is McFatridge v. Madigan [pdf]. McFatridge involves a simple question: if an elected official gets sued for his or her official actions, who pays the lawyer? Turns out, there's conflicting statutory language on that one.

Plaintiff used to be the State's Attorney -- an elective position -- in Edgar County. In 1987, he successfully prosecuted two individuals for murder. But many years later, the Federal district court granted both defendants' habeas petitions. So they both sued the plaintiff -- malicious prosecution, false imprisonment, intentional infliction of emotional distress.

Which brings us to the Illinois State Employee Indemnification Act. According to Section 2(b), although the Attorney General should, as a general matter, defend state employees sued for their acts within the scope of their employment, the Attorney General should opt out when the challenged act or omission "was intentional, willful or wanton misconduct." 5 ILCS 350/2(b).

Plaintiff repeatedly asked the Attorney General for representation. In 2005, the Attorney General said no, noting that the plaintiff had been accused of intentional, willful or wanton misconduct. In 2009, same thing. Finally, in 2010, counsel for the plaintiff demanded payment of plaintiff's attorney's fees. Same result: the complaint alleges intentional, willful or wanton misconduct, so you're out of luck. The plaintiff filed a petition for writ of mandamus, asking the Circuit Court to force the Attorney General's hand, but no luck: complaint dismissed.

The Appellate Court reversed. The Circuit Court's error, the Court held, was not reading the second paragraph of Section 2(b), which provided that the State "shall pay" the litigation expenses and attorney's fees of an "elected official" without limitation. So the Attorney General had no discretion, and the Court could order her to comply in mandamus.

Ultimately, the most substantial claim in McFatridge may prove to be the argument that the action was barred by the five-year statute of limitations. 735 ILCS 5/13-205. The Appellate Court held that the statute was not triggered, since the plaintiff's earlier demands had been for representation in the suit, not payment of attorney's fees -- the first demand for payment of fees had come in 2010, not long before the suit was filed.

Perhaps the Supreme Court took McFatridge in order to adopt the holding statewide. But if the Court wants to pull the teeth of the precedent, it would not be surprising to see a holding that the action is barred by the statute of limitations.

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