Doherty v. Caisley

JUSTICE UNDERWOOD, dissenting:

In Tedder v. Fairman (1982), 92 Ill. 2d 216 , a majority of this court concluded, erroneously in my judgment, that the legislature intended to authorize the appointment of public defenders to represent indigent prison inmates in civil cases. Those of us who dissented in Tedder emphasized the problems which that decision would pose for public defenders with their already staggering criminal caseloads. Those problems are now aggravated by the majority’s action, which places the entire burden of representation in civil cases upon the public defenders in those counties in which State correctional facilities are located. In so doing the majority has again, in my opinion, read into the statute a nonexistent legislative intention, thereby transferring to the taxpayers and public defenders in a few smaller counties all of the costs and labor associated with these civil suits. This is done despite the fact that very few of these inmates resided, committed the crime, or were convicted in these counties. My colleagues’ conclusion is all the more peculiar when one considers that over 50% of all Illinois prisoners are convicted and sentenced in Cook County, which under the majority view is now completely relieved of all obligation to represent indigent inmates in civil actions since no State correctional facilities are located there. That the General Assembly could not have intended such an anomalous and grossly inequitable result is self-evident and should finally convince us that we should now reconsider and overrule Tedder.

As those of us who dissented in Tedder also noted, the Public Defender Act (Ill. Rev. Stat. 1983, ch. 34, par. 5601 et seq.) simply does not permit the appointment of public defenders to prosecute civil actions. Indeed, section 7 of the Act expressly provides that public defenders are to be paid only for “expenses incurred in the defense of cases.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 34, par. 5607.) In addition to emphasizing the total absence of statutory authorization and enormously increased public defender caseload, we pointed out that these civil appointments would create the odd situation of prison inmates being accorded greater access to the courts than law-abiding citizens.

Since, however, the majority chooses to adhere to the notion that public defenders should represent indigent inmates in civil cases, it would, in my judgment, be far more sensible to require the appointment of a public defender from the county in which the inmate was convicted. Such a method would fairly allocate throughout the State the burden of that representation in proportion to the number of inmates committed by the various counties. The larger counties would, of course, bear a larger portion of the burden, but those counties also have larger public defender staffs. Those staffs, like most, if not all, public defender’s staffs, are already overburdened, but adding to the public defenders’ caseload is simply the inevitable result of Tedder. And apportioning the burden as I suggest certainly seems more equitable than imposing it upon a handful of counties, many of which are quite small. It is difficult to understand the majority’s claim that this approach is prohibited by sections 1.2 and 7 of the Act (Ill. Rev. Stat. 1983, ch. 34, pars. 5601.2, 5607), as those sections merely set forth the conditions under which two or more counties can form and operate a single public defender office. On the contrary, section 4, relied on by the majority in Tedder, specifically states that public defenders may “act as attorney *** before any court within any county ***.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 34, par. 5604.) Such language, in my opinion, requires the conclusion that if public defenders are to be appointed in these cases, they ought to be appointed from the county of conviction as the circuit judge ordered. I would therefore deny the writ.

CHIEF JUSTICE RYAN joins in this dissent.