Johnson v. Halloran, No. 1-98-2365

1st District, Jaunary 13,2000

FOURTH DIVISION

JUSTICE HALL delivered the opinion of the court:

This case is a legal malpractice action filed by plaintiff, Richard R. Johnson, against several Cook County public defenders and the County of Cook. Defendants sought dismissal of this action based on the one-year statute of limitations under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/8-101 (West 1996)). The circuit court denied this motion on August 1, 1997. Defendants then moved for summary judgment on the basis of sovereign immunity. The circuit court granted summary judgment as to all defendants on May 27, 1998. On June 24, 1998, plaintiff filed his timely notice of appeal. On July 1, 1998, defendants filed a notice of cross-appeal with respect to the August 1, 1997, denial of their motion to dismiss based on the statute of limitations.

Background

On November 22, 1996, Johnson filed a complaint for legal malpractice against defendants, Michael J. Halloran, Moses Collins, Shelton O. Green, and Rita A. Fry, individually and as public defender of Cook County. Johnson also included a count against the County of Cook based on a respondeat superior theory.

Prior to the filing of the present action, on August 8, 1991, 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 in the criminal case. The defense in the criminal case was then assigned to assistant public defender Halloran.

Pretrial discovery disclosed by the State in the criminal case included two Chicago police department lab reports. These lab reports showed that body fluids on the vaginal swab and panties of the victim immediately following the attack revealed the presence of H activity, indicating that such body 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. These results established that Johnson could not have been the sole donor of the foreign body fluids found on the person or clothing of the victim. Halloran did not seek to use this information in the underlying criminal trial. Rather, at a pretrial hearing, Halloran 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.

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's conviction was vacated on March 8, 1996, pursuant to a postconviction petition based on DNA test results. Prior to his release, Johnson sent a letter dated February 8, 1993, to defendant Rita A. Fry, public defender of Cook County, complaining about the legal representation he received in his criminal case. In this letter, Johnson specifically mentioned DNA evidence. Johnson also sent a letter to the Attorney Registration and Disciplinary Commission (ARDC) date stamped March 3, 1993, complaining about the legal representation he received from Halloran.

In the instant case, defendants filed a motion to dismiss plaintiff's complaint based on the statute of limitations, which was denied. Defendants filed a motion for summary judgment on the basis of sovereign immunity, arguing that public defenders are employees of the state and therefore the circuit court 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.

On appeal plaintiff contends that the circuit court erred in granting summary judgment in favor of the defendants on the basis of sovereign immunity because (a) public defenders are not agents or employees of the state, and (b) defendants' professional duties to their clients do not arise solely as a result of their government employment. On cross-appeal defendant contends that the circuit court erred in finding that plaintiff's complaint was timely filed.

DISCUSSION

A. Standard of Review

In appeals from summary judgment rulings, this court conducts a de novo review. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 607 N.E.2d 1204 (1992). Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Purtill v. Hess, 111 Ill. 2d 229, 489 N.E.2d 867 (1986).

B. Sovereign Immunity

Article XIII, section 4, of the Illinois Constitution of 1970 abolished sovereign immunity "[e]xcept as the General Assembly may provide by law." Ill. Const. 1970, art. XIII,