If a state elected official is sued for his or her official actions, may the Attorney General refuse to defend the official based solely on the allegations of the complaint? That’s the question the Supreme Court debated earlier this month during the oral argument in McFatridge v. Madigan. Our detailed preview of McFatridge, discussing the facts and lower court rulings in detail, is here.  Watch the video of the oral argument here.

The plaintiff was the elected State’s Attorney of Edgar County. Years after he successfully prosecuted two defendants for murder, the Federal district court granted both defendants’ habeas petitions. The defendants sued a number of different government officials, including police officers and the defendant, alleging that they had hidden exculpatory evidence.

Plaintiff asked the Attorney General for representation repeatedly, but the Attorney General refused plaintiff’s requests in 2005, 2009 and again in 2010. The plaintiff filed a petition for writ of mandamus, but the petition was denied.

McFatridge is governed by the State Employee Indemnification Act. The parties argue about how to reconcile three different provisions. According to 5 ILCS 350/2(a), if "any civil proceeding is commenced against any State employee" arising out of any act or omission within the scope of the defendant’s employment, the Attorney General "shall" defend the action. The first paragraph of 5 ILCS 350/2(b) provides that the Attorney General may decline to defend the action where it "involves an actual or potential conflict of interest" or the act or omission at issue was either not within the scope of the defendant’s employment, or "was intentional, willful or wanton misconduct." According to the second subparagraph of subsection (b), the state "shall pay" elected officials’ court costs, litigation expenses and attorneys’ fees, to the extent approved by the Attorney General as reasonable.

The Appellate Court reversed the Circuit Court, holding that the "shall pay" language of the second paragraph of subsection 2(b) denied the Attorney General any discretion about whether or not to pay any elected official’s legal fees.

Justice Freeman asked counsel for the Attorney General whether the arguments raised in his briefs were different from those raised in his petition for leave to appeal – weren’t such arguments forfeited? Counsel responded that the State’s arguments had been the same from start to finish; the issue of the Attorney General’s discretion to make the decision as to whether or not to cover the official’s expenses ran throughout the case. Counsel argued that the plain language of the statute should end the inquiry. Counsel stated that his anecdotal understanding was that the Attorney General had seldom denied funding for a defense before. He argued that the plaintiff’s reading of the Indemnification Act would necessarily eliminate the bar to paying for conduct outside the scope of employment, surely taking the statute outside the credible scope of the legislature’s intent. Justice Freeman asked whether Tully v. Edgar controlled, but counsel for the Attorney General suggested that nothing about Tully was applicable to the case at hand. Counsel argued that the Attorney General was arguing for a facial construction of the statute which avoided reading the Act in a way which ran afoul of constitutional prohibitions on spending state money on private interests. Justice Garman asked whether the various subsections’ use of the phrase "in the event that" suggested that the subsections were meant to be alternatives. Counsel responded that it did not; nothing in the successive subsections suggested that what went before was being overridden. Justice Garman asked whether the Attorney General treated allegations alone as being sufficient to forbid taking over a defense; counsel responded that the statutory term was that the Attorney General should "determine" the issue, meaning that the Attorney General had unfettered discretion.

Counsel for the plaintiff began by arguing that the Attorney General’s claims of a statutory screening process were an after-the-fact cobbled-together justification. Every civil rights claim alleges constitutional violations, counsel pointed out, and the Attorney General had nevertheless denied a defense based on mere allegations. Justice Thomas asked whether any deficiency in the screening process was excused by the promise of post-trial reimbursement; counsel responded that given the financial strain to state officials of having to finance a multi-year defense themselves, after-the-fact reimbursement in no way cured the problem. Justice Karmeier asked whether it was within the purview of the Court to decide whether the Attorney General’s screening was adequate on the facts. Counsel responded that the Court could consider the lack of criterion for any such screening in the statute; if screening had actually been intended by the legislature, the process would have been set out in detail.

Counsel challenged the State’s claim that the Attorney General couldn’t use public funds to defend willful and wanton misconduct, pointing out that the Attorney General had defended police officers who were accused of actively covering up exculpatory information. The Attorney General later settled the case on behalf of the police, using more public funds. Justice Thomas asked whether counsel was saying that the State was estopped from denying a defense. Counsel answered that the matter should be resolved based on the plain language of the statute, but in the alternative, estoppel applied. Justice Theis asked what effect the language of subsection (b), allowing the Attorney General to approve counsel and fees, had; counsel responded that the State’s failure to fund a defense had been a serious problem for the plaintiff. The plaintiff had been entirely without financing for more than two years. Chief Justice Kilbride asked what the basis had been for insurers to negate coverage in declaratory judgment actions, and counsel responded that it had been the definition of the insured, rather than a strict coverage decision. Justice Karmeier suggested that subparagraph (b) of the statute appeared to cross-reference subparagraph (a), but counsel argued that the statute treated elected officials differently as a result of concerns about the effect of partisan politics, authorizing refusal to defend for non-elected, but not elected officials. Counsel argued that if the legislature had intended that the Attorney General be able to refuse coverage based on mere allegations, it could have easily said so in the second paragraph of subsection 2(b) – the only language which expressly and exclusively dealt with elected officials.

In rebuttal, counsel for the state argued that the allegations against the plaintiff were in several respects more serious than those against the police officers. Counsel argued that the speculation that a concern over partisan politics animated the statute was contrary to the Court’s settled precedent, which provided that courts could not presume the bad faith of elected officials. And if the statute was constructed to insulate the decision about whether to take over an elected official’s defense from partisan politics, why was the Attorney General expressly authorized to approve the official’s attorney and fees?

McFatridge should be decided within three to six months.