concluding that public defenders were not entitled to immunity from legal malpractice claims brought by former client; although attorneys were county employees, no specific statutory immunity existed for them at the time of the events giving rise to the cause of action
How later courts described this case
- concluding that public defenders were not entitled to immunity from legal malpractice claims brought by former client; although attorneys were county employees, no specific statutory immunity existed for them at the time of the events giving rise to the cause of action
- recognizing public defenders do not have sovereign immunity but enjoy qualified immunity under chapter 745 ILCS 19/1, Illino is’ public and appellate defender immunity act, except for willful and wanton misconduct
- “The Public and Appellate Defender Immunity Act provides that public defenders and their assistants and the persons or entities employing them are not liable ‘for any damages in tort, contract, or otherwise, in which the plaintiff seeks damages by reason of legal or professional malpractice, except for willful and wanton misconduct.’ ”
- considering claim for legal malpractice against public defenders after client was exonerated through postconviction proceedings
Written by the judges who cited it.
The opinion
JUSTICE BILANDIC, specially concurring:
I agree with the majority that sovereign immunity does not bar an action against members of the Cook County public defender’s office for negligence they allegedly committed in the course of representing Richard Johnson. I also agree that the subsequently enacted Public and Appellate Defender Immunity Act (Act) (Pub. Act 91 — 877, eff. June 30, 2000 (codified at 745 ILCS 19/1)) does not apply in this case. I do so, however, for reasons other than those stated in the majority opinion.
I, along with other members of this court, have advocated the adoption by this court of the test set forth by the United States Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244 , 128 L. Ed. 2d 229 , 114 S. Ct. 1483 (1994), for determining when a new or amended statute will be applied on appeal to pending cases. See People v. Ramsey, 192 Ill. 2d 154, 159-74, 174-88 (2000) (Bilandic, J., specially concurring; Freeman, J., also specially concurring, joined by McMorrow, J.). As I noted in Ramsey, the Landgraf test, which was devised for determining when a new federal statute will be applied on appeal to pending cases, is set forth as follows:
“ ‘When a case implicates a federal statute [or a state statute] enacted after the events in suit, the court’s first task is to determine whether Congress [or the General Assembly] has expressly prescribed the statute’s proper reach. If Congress [or the General Assembly] has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern ***.’ ” See Ramsey, 192 Ill. 2d at 171-72 (Bilandic, J., specially concurring), quoting Landgraf, 511 U.S. at 280 , 128 L. Ed. 2d at 261-62 , 114 S. Ct. at 1505 .
I reiterate that this court should apply the above test in this case and in future cases concerning the application of a new or amended statute to a case pending on appeal. Applying the Landgraf test to the present case begins with the language of the Act itself. First, we must determine whether the General Assembly has expressly prescribed the proper reach of the Act, i.e., whether the act applies to pending cases. See Landgraf, 511 U.S. at 280 , 128 L. Ed. 2d at 261-62 , 114 S. Ct. at 1505 . The Act contains the following sentence: “This Act takes effect upon becoming law,” i.e., on June 30, 2000. See Pub. Act 91 — 877, § 99, eff. June 30, 2000. Such language does not indicate clearly the temporal reach of this Act. The question therefore becomes whether the Act would have retroactive effect, namely, whether it would impair the rights a party possessed when he acted. See Landgraf, 511 U.S. at 280 , 128 L. Ed. 2d at 262 , 114 S. Ct. at 1505 . Application of the Act to this case would have retroactive effect because it would deprive plaintiff of his legal malpractice cause of action, based on negligence, which he possessed when he filed suit against defendants. Therefore, pursuant to the Landgraf test, our traditional presumption against statutory retroactivity teaches that this Act does not govern in this case, which was pending on appeal when the Act became law.
Based on the above analysis, I agree that the Public and Appellate Defender Immunity Act does not apply to this case.
JUSTICES FREEMAN and McMORROW join in this special concurrence.