dissenting:
I respectfully dissent. Section 5 — 1002 of the Illinois Counties Code (Code) (55 ILCS 5/5 — 1002 (West 2000)) requires counties to indemnify sheriffs for any personal injury or property damage judgment within specific limits and subject to certain conditions. The majority holds that this provision is inapplicable to the case at hand because it only applies to individual-capacity judgments. This interpretation is belied by the plain language of the section that clearly states the provision applies to “any judgment.” (Emphasis added.) 55 ILCS 5/5 — 1002 (West 2000). If the legislature meant for the section to apply only to individual-capacity judgments, I believe it would have done so expressly.
Instead of relying on a statutory section plainly on point, the majority concludes that a county is obligated to provide funds to a county sheriff to pay official-capacity judgments, relying primarily on two general provisions of the Code, sections 4 — 6003 and 5 — 1106 (55 ILCS 5/4 — 6003, 5 — 1106 (West 2000)). 203 Ill. 2d at 516. The majority reasons that because these sections provide that the sheriffs office is to be financed by public funds appropriated to it by a county board, a “statutory scheme” exists requiring the county to pay official-capacity judgments entered against the sheriffs office. I disagree with the majority for three reasons.
First, the majority’s opinion runs counter to the familiar doctrine of ejusdem generis. That principle of statutory construction provides that when a statute lists several classes of persons or things but provides that the list is not exhaustive, the class of unarticulated persons or things will be interpreted as those “others such like” the named persons or things. City of East St. Louis v. East St. Louis Financial Advisory Authority, 188 Ill. 2d 474, 484 (1999). Section 4 — 6003 is a general provision fixing the amount of compensation, together with necessary expenses, of sheriffs in counties with populations of less than 2 million. The necessary expenses are defined to include the hiring of clerks, stationery, fuel, and other expenses. Notably absent from this list is any reference to the payment of judgments. The payment of judgments is not an expense “such like” clerk personnel, stationery, or fuel. Thus, an obligation of a county to pay a judgment entered against a sheriff cannot reasonably be inferred from the language of section 4 — 6003.
Second, section 5 — 1106 requires county boards to provide, among other things, “reasonable and necessary expenses for the use of the county board, county clerk, county treasurer, recorder, sheriff, coroner, State’s attorney, superintendent of schools, judges and clerks of courts, and supervisor of assessment.” 55 ILCS 5/5— 1106 (West 2000). Although this provision does not give examples of the kinds of expenses within the reasonable and necessary category, the statute is concerned generally with provisions for county office buildings and for equipment and repairs (55 ILCS 5/5 — 1106 (West 2000)). An obligation to pay judgments simply does not arise from the plain language of this section.
Lastly, the majority’s opinion does not recognize specific safeguards designed by the legislature to protect counties from unrestricted and unlimited liability for judgments rendered against county sheriffs. Those safeguards, found solely in section 5 — 1002, are: (1) a cap of $500,000 in liability for the county; (2) specific notice requirements to the county; (3) an exemption for the county if the injury was caused by the sheriffs willful misconduct; and (4) authority for the county to intervene and to appear and defend the action (55 ILCS 5/5 — 1002 (West 2000)). The wisdom of the majority’s decision to sanction a sheriffs authority to settle a lawsuit that a county is ultimately responsible for paying is questionable in the first place. Since the Code gives counties the exclusive authority to levy taxes to pay judgments (see 55 ILCS 5/1 — 6004 (West 2000)), it is axiomatic that the counties should have the ultimate authority to settle the underlying lawsuits. Beyond this fundamental concern, if the comprehensive indemnity scheme set out in section 5 — 1002 is wholly ignored, then a county could be held responsible for satisfying a judgment in any amount by reason of a settlement it had no opportunity to approve or even review stemming from a lawsuit it had no notice of whatsoever. That concern would be completely alleviated by section 5 — 1002’s notice requirement and the language allowing counties to intervene and to appear and defend the action. Under the majority’s opinion, contrary to the legislature’s express language, there is no limitation on the amount of recovery, no notice requirement, and no authorization for the county to intervene.
The majority states that it expresses “no opinion with respect to the validity of a settlement agreement stemming from a lawsuit of which a county had no notice.” 203 Ill. 2d at 519. I question how the majority can qualify its opinion in such a way when there is absolutely no authority, under the majority’s opinion, that requires a county sheriff or deputy to provide the county with notice of the underlying suit. Having overlooked section 5 — 1002’s safeguards, the majority was simply left with no other choice but to begin to graft the section 5 — 1002 protections onto the general statutory section.
Consider for a moment that a sheriff in a case such as the one at bar decides to settle a lawsuit for $5 million or $50 million or $5 billion. There being, under the majority’s decision, no limitation on the amount of recovery, no notice requirement, and no authorization for the county to intervene, there would be absolutely nothing a county could do to avoid being bound by such a judgment. How can this result be countenanced?
The majority attempts to reconcile its position by reasoning that, under section 5 — 1002, counties are not required to indemnify sheriffs for injuries resulting from “wilful misconduct.” 55 ILCS 5/5 — 1002 (West 2000). According to the majority, the county government could thus “insulate itself from liability” because “ ‘all violations of Title VII require discriminatory intent, a form of wilful misconduct.’ ” 203 Ill. 2d at 509, quoting Carver v. Sheriff of La Salle County, 243 F.3d 379, 384 (7th Cir. 2001). I respectfully submit the majority is incorrect. First of all, the scope of the willful misconduct limitation should be defined in light of the kinds of remedies available to the victim of the misconduct. Surely, a county should not be required to indemnify a sheriff for a murder, a felony, or other egregious behavior. But, the victim of an official policy decision, resulting in discrimination or a depravation of constitutionally protected rights could recover a judgment, even if the policy were the result of a deliberate decision. Second, if the county was complicit in the misconduct, then the plaintiff could sue the county directly.
Section 5 — 1002, entitled “Indemnity of sheriff or deputy,” requires a county to indemnify a sheriff for any judgment recovered against him for injuries caused while engaged in the performance of his duties. Given that this statute applies to any personal injury or property judgment, it applies to the official-capacity judgment at issue in this case. Thus, the “when” portion of the certified question should depend on a finding of at least substantial compliance with the terms of that statute. Since I cannot agree that any other basis exists requiring the county to pay a judgment entered against a sheriff in his official capacity, I respectfully dissent.