Kolar v. Sangamon County of State of Ill.

Decision Date04 March 1985
Docket NumberNo. 84-2262,84-2262
Citation756 F.2d 564
Parties37 Fair Empl.Prac.Cas. 298, 36 Empl. Prac. Dec. P 35,145 Sandra KOLAR, Plaintiff-Appellee, v. COUNTY OF SANGAMON OF the STATE OF ILLINOIS, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Mary Lee Leahy, Leahy & Leahy, Springfield, Ill., for plaintiff-appellee.

Dwight O'Keefe, Springfield, Ill., for defendant-appellant.

Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and FAIRCHILD, Senior Circuit Judge.

CUMMINGS, Chief Judge.

This is an appeal by defendant County of Sangamon, Illinois, from the district court's grant of summary judgment in favor of plaintiff Sandra Kolar. The court below held the defendant liable for a judgment obtained by plaintiff versus the Sheriff of Sangamon County in a separate action and for attorney's fees and costs arising out of the earlier suit. For the reasons set forth below, we affirm.

I

Plaintiff Sandra Kolar filed suit in the United States District Court for the Central District of Illinois on February 29, 1980, against Martin Gutschenritter, the Sheriff of Sangamon County at all times relevant to the complaint, and his administrative assistant, Greg Sullivan. Kolar alleged liability under 42 U.S.C. Sec. 1983, charging that she was improperly denied appointment as deputy sheriff on the basis of both sex discrimination and her refusal to engage in certain political activities. Kolar v. Gutschenritter and Sullivan, No. 80 C 3064 (C.D.Ill. June 25, 1981). The State's Attorney's Office of Sangamon County determined that it was obligated to defend Gutschenritter and Sullivan under Section 5, Chapter 14 of the Illinois Revised Statutes. That Section reads:

The duty of each State's Attorney shall be: * * * (4) To defend all actions and proceedings brought against his county, or against any county or State officer, in his official capacity, within his county.

ILL.REV.STAT. ch. 14, Sec. 5 (1979). The State's Attorney then discovered that there was a conflict of interest within that office and retained a Springfield, Illinois, law firm to represent Gutschenritter and Sullivan as a Special Assistant State's Attorney. The County also acted pursuant to ILL.REV.STAT. ch. 85, Sec. 2-302 (1979), which allows a local public entity an election to "[a]ppear and defend against" suits versus the entity's employees allegedly arising out of acts or omissions within the scope of employment. Defendant County paid the law firm representing Gutschenritter and Sullivan the sum of $9,794.97.

On September 25, 1981, the district court entered judgment on the jury's verdict for plaintiff, Sandra Kolar, and against Sheriff Gutschenritter in the amount of $9,900 actual damages and $100 punitive damages. Attorney's fees in the amount of $8,575 and costs in the amount of $1,060.12 were also awarded to plaintiff pursuant to 42 U.S.C. Sec. 1988. The jury found co-defendant Sullivan not liable. Kolar then made a written demand upon Sangamon County to pay the judgment, attorney's fees and costs obtained against Gutschenritter, but the County refused the request. On March 26, 1982, plaintiff filed this suit against Sangamon County in the United States District Court for the Central District of Illinois. On June 22, 1983, that court granted plaintiff's motion for summary judgment as to Count IX of the complaint (App. A-18) which not only asserted the defendant County's liability to pay the judgment, attorney's fees and costs arising from Kolar v. Gutschenritter, but also alleged a deprivation of property in violation of the Fourteenth Amendment and entitlement to damages under 42 U.S.C. Sec. 1983 because of the County's refusal to pay (Docket Entry of June 22, 1983, and R. Item 28). 1 On October 3, 1983, two orders were docketed: the first awarded plaintiff attorney's fees in her suit against the County; the second clarified the date from which 6% interest was to run on plaintiff's judgment in the 1980 suit and the date interest was to run on the award of attorney's fees and costs (First Docket Entry of October 3, 1983, and R. Item 28).

On appeal defendant solely contests its liability arising out of plaintiff's 1980 suit against Sheriff Gutschenritter. Although plaintiff asserted below that the County was obligated to pay the judgment against Gutschenritter under both ILL.REV.STAT. ch 85, Sec. 9-102 (1979) and ILL.REV.STAT. ch. 34, Sec. 301.1 (1979), Judge Ackerman's June 22, 1983, docket entry relies solely on the former statute as supporting liability. On appeal plaintiff continues to rely on both Illinois statutes as a basis for the County's liability and further alleges liability under a Monell theory, i.e., that the actions of the Sheriff represented the official policy or custom of Sangamon County and that the County, therefore, is directly liable. See Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611.

II

Defendant's challenge to the summary judgment order raises two principal issues: (1) whether a judgment or settlement obtained pursuant to Section 1983 constitutes a "tort judgment or settlement" for purposes of ILL.REV.STAT. ch. 85, Sec. 9-102, so as to subject Illinois local government entities to liability for the Section 1983 violations of their employees, and (2) whether Sheriff Gutschenritter was sued in his official, as opposed to his individual, capacity so as to subject Sangamon County to liability for attorney's fees and costs arising from a Section 1983 judgment versus a local government official under Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 256, 57 L.Ed.2d 522 (1978). Defendant's briefs do not challenge the October 3, 1983, award of attorney's fees and costs to plaintiff stemming from the present suit.

Local Governmental Entity Liability Under Illinois Law for Section 1983 Judgments Against Government Employees.

Judge Ackerman was eminently correct in concluding that ILL.REV.STAT. ch. 85, Sec. 9-102 authorizes recovery of a Section 1983 judgment obtained against a local public entity employee, acting in the scope of employment, from the relevant local entity. It is unnecessary to consider, therefore, whether liability here may be transferred to a government entity via Illinois employee indemnity law, ILL.REV.STAT. ch. 34, Sec. 301.1, or exists under the Monell theory summarized supra. 2 Illinois law provides that

A local public entity is empowered and directed to pay any tort judgment or settlement for which it or an employee while acting in the scope of his employment is liable in the manner provided in this Article.

ILL.REV.STAT. ch. 85, Sec. 9-102 (1983). Sangamon County makes no claim that Sheriff Gutschenritter was not acting within the scope of his employment and Judge Ackerman expressly concluded in his June 22, 1983, docket entry that the Sheriff was so acting. Defendant simply argues that the Section 1983 judgment obtained versus Gutschenritter was not a "tort judgment" within the meaning of Chapter 85, Section 9-102. The County offers no Illinois caselaw consonant with its view and we see no need to read the statute so narrowly. Plaintiff's Section 1983 judgment obtained against Sheriff Gutschenritter is a "tort judgment" under Illinois law.

Apart from initially observing that Section 1983 actions are commonly referred to as "constitutional torts," see, e.g., Guenther v. Holmgreen, 738 F.2d 879, 881 (7th Cir.1984), we note that the Supreme Court in Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), expressly stated that Section 1983 "was intended to '[create] a species of tort liability' in favor of persons who are deprived of 'rights, privileges, or immunities secured' to them by the Constitution." Id. at 253, 98 S.Ct. at 1046 (quoting Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 988, 47 L.Ed.2d 128 (1976)). Piphus ruled that the common-law tort requirement of proof of actual injury should apply in the Section 1983 context. Id., at 264, 98 S.Ct. at 1052.

In the only case expressly in point, Evans v. City of Chicago, 522 F.Supp. 789, 792 n. 3 (N.D.Ill.1980), affirmed on other grounds, 689 F.2d 1286 (7th Cir.1982), District Judge Grady held that "the word 'tort' [as utilized in Chapter 85, Section 9-102 and adjoining Section 9-104] is broad enough to reach a Sec. 1983 judgment or settlement," 3 although the issue was not raised by the parties. The Evans decision pointed out that other courts have interpreted the words "tort" or "tortious injury" to include conduct actionable under Section 1983 in the context of construing state long-arm statutes. See Overby v. Johnson, 418 F.Supp. 471, 472-473 (E.D.Mich.1976); Mandelkorn v. Patrick, 359 F.Supp. 692, 693-694 (D.D.C.1973). This Court's prior conclusions that statutory civil rights actions should not be characterized as common-law torts, Blake v. Katter, 693 F.2d 677, 680 (7th Cir.1982); Movement for Opportunity and Equality v. General Motors Corp., 622 F.2d 1235, 1242-1243 (7th Cir.1980), and that the two-year Illinois tort action statute of limitations is inapplicable to such actions, Beard v. Robinson, 563 F.2d 331, 336 (7th Cir.1977), certiorari denied, 438 U.S. 907, 98 S.Ct. 3125, 57 L.Ed.2d 1149 (1978), are not contrary to our holding today that Section 1983 is a statutory species of tort.

The $100 in punitive damages awarded Kolar also may be recovered from the County under the above-quoted Illinois statutory Section 9-102. As a general rule, local public entities are immune from punitive damage awards in civil rights actions. See City of Newport v. Fact Concerts, 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981); Bell v. City of Milwaukee, 746 F.2d 1205, 1270 (7th Cir.1984). It is clear, however, that a local government entity's "immunity from liability, including liability for punitive damages, may be waived by federal or state law." Bell, 746 F.2d at 1271; see Owen v. City of Independence, 445 U.S. 622, 647-648, 100 S.Ct. 1398,...

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