Cordon Baker v. State of Illinois

This matter is before the Court on the Respondent’s motion to dismiss for lack of jurisdiction over the subject matter of this claim. The Claimant having filed no objection to said motion, and the Court being fully advised in the premises, finds as follows:

Claimant contends that the driver, Tommie Craft, of the National Guard truck was an agent of the State of Illinois at the time of the accident. This Court in McRaven u. State (1972), 23 Ill. Ct. C1. 5, stated this was essential if the Court was to have jurisdiction over this cause of action.

The Claimant and the driver of the truck were Illinois National Guardsmen en route to Camp McCoy, Wisconsin, for summer training. The truck went out of control and crashed in Columbia County, Caledonia Township, Wisconsin. Both the driver and the Claimant were participating in Federally required and funded annual training pursuant to 32 U.S.C. 503.

In Porter 0.State (1975), 31 Ill. Ct. C1. 51, the Court denied the claim and held that the driver was performing Federally funded annual training pursuant to 32 U.S.C. 503, and therefore was on a Federal mission and not performing a State function. Hence, the driver was not an agent of the State at the time of the incident and the State was not liable.

[*913] Since the National Guard unit to which the driver was attached was not performing a State function or in State service at the time of the accident, the driver could not have been an agent or an employee of the State of Illinois. The Respondent cannot be held responsible for the driver’s acts because of this fact, and therefore the Court does not have jurisdiction over the matter.

Wherefore, it is hereby ordered that this claim be, and hereby is, dismissed.

( No . 83-CC-2445-Claimant awarded $213,630.52.)

WILLIAM J. HARTE, LTD., a professional corporation, Claimant,

2). THE STATE OF ILLINOIS, Respondent.

Opinion filed June 9,1983.

KEVIN M. FORDE, for Claimant.

NEIL F. HARTIGAN, Attorney General (WILLIAM R. WALLIN,Assistant Attorney General, of counsel), for Respondent.

CIVILRrcwr-uttorncy fees uworded-uction contesting congressional redistricting. Claini was allowed for attorney fees incurred in contesting constitutionality of Illinois congressional redistricting done after 1980 census, as State was liable sincc, attorney fees are awardable to prevailing party in civil rights ;ictions, ROE, C.J.

This is a claim for payment of attorney fees awarded to the Claimant in a case styled In re Zllinois Congressional District Reapportionment Cases, Master File No. 81-C-3915. Actions were brought in both the circuit court of Cook County and the United States District Courts for [*914] both the Southern and Northern Districts in Illinois contesting the constitutionality of the Illinois congressional redistricting which was done after the 1980 census. The Claimant here represented one of the plaintiffs, Earl Neal Otto.

The State Board of Elections conceded the unconstitutionality of the reapportionment plan. The issue for the trial court was the determination as to which reapportionment plan was to be adopted and the issue on appeal was the amount of attorney fees.

The question for the Court of Claims to decide is whether it has the authority to make an award in this claim. The State Board of Elections has insufficient funds to pay this claim, and there is no other appropriate agency which would have the funds. Although the Federal suit arose under the Civil Rights Act, this is not a claim under the Indemnification Act (Ill. Rev. Stat. 1981, ch. 127, par. 1301 et s e q . ) . This is a claim directly against the State, not a claim to indemnify any State employee.

There is no doubt that under the current Federal law that the State is liable. 42 U.S.C. 1988 provides that attorney fees may be awarded to the prevailing party in a civil rights suit. In his orders of May 25, 1982, and May 19, 1983, the U.S. district judge ordered that the attorney fees be paid. Interest is due on such awards under 26 U.S.C. 1961.

We view this claim similar to those in which we make awards because the indebtedness was expressly authorized by law. In a distinct, but similar, situation, this Court, in Butterfield v . State (1961), 24 Ill. Ct. C1. 85, determined that the fees of a private attorney hired by the State Treasurer to defend his official actions when the Attorney General was unable to defend him could be paid by this Court even though there were insufficient [*915] funds available for the State Treasurer to pay them directly. We said there that “neither Mr. Wright [the State Treasurer] nor the Legislature could anticipate the necessity of his defending an action brought against him in his official capacity by the Attorney General, who ordinarily would represent him.” (24 Ill. Ct. C1. 85, 97.) Likewise here, neither the State Board of Elections nor the General Assembly could be expected to anticipate either the award or its size. In general the State cannot forecast either the frequency or size of awards that may be made against the State in Federal court, especially since the Federal laws and court decisions are relatively new and represent an erosion of sovereign immunity and the eleventh amendment, on which the State has previously relied.

We therefore determine that an award of $183,420.67 plus interest at the rate of 12.1948 from the date of the original judgment, May 25, 1982, until the date the voucher is prepared should be made. Since this claim will have to be paid through a special awards bill, it will be paid by November 1, 1983, at the latest. At that time, interest will amount to $32,906.48. Thus, we make a total award not to exceed $216,327.15, the exact amount to be calculated on the date the voucher is prepared.