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Docket No. 89594-Agenda 33-September 2000.

RICHARD R. JOHNSON, Appellee, v. MICHAEL J.
HALLORAN et al., Appellants.

Opinion filed December 1, 2000.

CHIEF JUSTICE HARRISON delivered the opinion of thecourt:

The issue in this case is whether sovereign immunity bars anaction against members of the Cook County public defendersoffice for negligence they allegedly committed in the course ofrepresenting Richard Johnson, an indigent criminal defendant,pursuant to an appointment by the circuit court. The circuit courtanswered this question in the affirmative and granted summaryjudgment in favor of the public defenders and against Johnson,their former client. The appellate court reversed and remanded forfurther proceedings. 312 Ill. App. 3d 695. We granted leave toappeal. 177 Ill. 2d R. 315. For the reasons that follow, we nowaffirm the appellate court.

The record shows that in August of 1991, Richard Johnsonwas charged with aggravated criminal sexual assault in the circuitcourt of Cook County. The public defender of Cook County wasappointed by the court to represent Johnson. The defense of thecase was then assigned to assistant public defender MichaelHalloran.

Pretrial discovery obtained from the State included twoChicago police department lab reports. According to those reports,body fluids on the vaginal swab and panties of the victim collectedafter the crime revealed the presence of H activity, indicating thatthe fluids were from a person who was a secretor. The blood andsaliva samples taken from the victim and from Johnson showedthat they were both nonsecretors. Accordingly, Johnson could nothave been the sole donor of the foreign body fluids found on theperson or clothing of the victim.

Halloran, Johnson's appointed counsel, did not seek to usethis information at Johnson's trial. Instead, he presented a motionin limine to prohibit the State from introducing any evidence ofblood, semen, or saliva testing. The circuit court grantedHalloran's motion in limine on September 4, 1992, and the testresults were never placed in evidence.

Following a bench trial, Johnson was convicted in theunderlying criminal case and was sentenced to 30 years in theIllinois Department of Corrections. Prior to this conviction, noDNA profile was performed on Johnson, the victim, or thevictim's husband.

Johnson subsequently sought relief under the Post-ConvictionHearing Act (725 ILCS 5/122-1 et seq. (West 1994)). In thecourse of the post-conviction proceedings, DNA tests wereperformed which exonerated Johnson. Based on those results,Johnson's conviction was vacated on March 8, 1996.

Following his exoneration and release, Johnson brought thislegal malpractice action in the circuit court of Cook County.Named as defendants were Halloran, Johnson's trial attorney;Moses Collins, Halloran's supervisor; Shelton Green, supervisorof the public defender's felony trial division; and Rita Fry, theCook County public defender. Johnson also included a countagainst Cook County based on respondeat superior.

Defendants moved to dismiss plaintiff's complaint based onthe statute of limitations. That motion was denied. Defendantsthen filed a motion for summary judgment on the basis ofsovereign immunity, arguing that public defenders are employeesof the state and that the circuit court therefore lacked subjectmatter jurisdiction to hear this case because plaintiff's claims mustbe brought in the Illinois Court of Claims. The circuit courtgranted defendants' motion on May 27, 1998.

Plaintiff appealed, arguing that the circuit court erred ingranting summary judgment in favor of the defendants on the basisof sovereign immunity. Defendants cross-appealed, contendingthat the circuit court erred in finding that plaintiff's complaint wastimely filed. The appellate court agreed with the circuit court thatplaintiff's complaint was not time-barred. Contrary to the circuitcourt, however, it held that the claim was not barred by sovereignimmunity either. Accordingly, it reversed the entry of summaryjudgment against plaintiff and remanded for further proceedings.

In reviewing the lower courts' judgments, we begin with ananalysis of the defendants' employment status. As previouslyindicated, the circuit court regarded the individual defendants asemployees of the state. They are not. While public defenders andtheir assistants may exercise sovereign powers in performing theirduties (Chief Judge of the Sixteenth Judicial Circuit v. IllinoisState Labor Relations Board, 178 Ill. 2d 333, 344 (1997)), theexercise of sovereign power does not, by definition, convert theminto state employees. In Illinois, sovereign power is not restrictedto the state government. It may also be exercised by home ruleunits. See Ill. Const. 1970, art. VII,