Grey v. Hasbrouck

33 N.E.3d 819

Lauren GREY, Victor Williams, and Nicholas Guarino, on Behalf of Themselves and All Persons Similarly Situated, Plaintiffs–Appellees

v.La Mar HASBROUCK, M.D., Director of the Department of Public Health, in His Official Capacity as State Registrar of Vital Records, Defendant–Appellant.

No. 1–13–0267.

Appellate Court of Illinois, First District, Sixth Division.

May 22, 2015.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Jane Elinor Notz and Brett E. Legner, Assistant Attorneys General, of counsel), for appellant.

John A. Knight, Harvey Grossman, and Ruth Z. Brown, all of Roger Baldwin Foundation of ACLU, Inc., and David M. Kroeger and Kyle A. Palazzolo, both of Jenner & Block LLP, both of Chicago, and James D. Esseks, of American Civil Liberties Union Foundation, of New York, New York, for appellees.

OPINION

Justice HALL delivered the judgment of the court, with opinion.

¶ 1 The defendant, La Mar Hasbrouck, M.D., State Registrar of Vital Records, appeals an order of the circuit court of Cook County awarding attorney fees and costs to the plaintiffs, Lauren Grey, Victor Williams and Nicholas Guarino, in conjunction with the entry of a consent decree. The sole issue on appeal is whether the award of attorney fees and costs was barred by the doctrine of sovereign immunity. For the reasons set forth below, we conclude that sovereign immunity does not bar the award of attorney fees and costs. We affirm the order of the circuit court.

¶ 2 Section 17(1)(d) of the Vital Records Act (410 ILCS 535/17(1)(d) (West 2010)) provides in pertinent part as follows:

“(1) For a person born in this State, the State Registrar of Vital Records shall establish a new certificate of birth when he receives any of the following:

* * *

(d) An affidavit by a physician that he has performed an operation on a person, and that by reason of the operation the sex designation on such person's birth record should be changed. The State Registrar of Vital Records may make any investigation or require any further information he deems necessary.”

¶ 3 On May 10, 2011, the plaintiffs brought a class action lawsuit on behalf of themselves and a class of persons similarly situated against the defendant in his official capacity as the Director of Public Health and the State Registrar of Vital Records.¹ The plaintiffs and the members of the class are transgender persons who were born in Illinois.

¶ 4 The complaint alleged that, prior to 2005, the defendant routinely changed the gender mark on Illinois birth certificates to accurately reflect the gender identity for persons who had undergone a form of gender confirmation surgery that did not include genital surgery. The plaintiffs further alleged that in or about 2005, the defendant adopted a practice in which he refused to correct the sex designation on an Illinois birth certificate to match the person's gender identification unless the person had undergone genital surgery. The plaintiffs maintained that in denying their applications to change the sex designation on their birth certificates without the genital surgery, the defendant violated the Vital Records Act and their rights to due process and privacy under the Illinois Constitution (Ill. Const. 1970, art. I, §§ 6, 12 ). The plaintiffs sought declaratory and injunctive relief, and an award of costs and reasonable attorney fees pursuant to section 5 of the Illinois Civil Rights Act of 2003 (740 ILCS 23/5 (West 2010) ) (the Civil Rights Act). On October 23, 2012, the parties entered into a consent decree resolving the substantive issues raised in the complaint.

¶ 5 On December 11, 2012, the circuit court conducted a hearing on the plaintiffs' request for an award of attorney fees as provided for under the Civil Rights Act. The plaintiffs argued that the legislature intended to waive sovereign immunity under the Civil Rights Act by providing for the award of attorney fees. They further argued that the state officer exception to sovereign immunity applied. The circuit court agreed with the plaintiffs that the state officer exception applied in this case. The court awarded costs and attorney fees in the amount of $135,000 to the plaintiffs as the prevailing party. The defendant appeals.

¶ 6 ANALYSIS

¶ 7 I. Standard of Review

¶ 8 “Whether a circuit court has subject matter jurisdiction presents a question of law and is subject to de novo review.” Wolinsky v. Kadison, 2013 IL App (1st) 111186, ¶ 31, 370 Ill.Dec. 205, 987 N.E.2d 971 ; see Hadley v. Department of Corrections, 362 Ill.App.3d 680, 683, 298 Ill.Dec. 635, 840 N.E.2d 748 (2005) (a court lacks jurisdiction over lawsuits barred by sovereign immunity). The court also applies the de novo standard of review to the construction of a statute. Wolinsky, 2013 IL App (1st) 111186, ¶ 31, 370 Ill.Dec. 205, 987 N.E.2d 971.

¶ 9 II. Discussion

¶ 10 A. The Doctrine of Sovereign Immunity

¶ 11 The 1970 Illinois Constitution abolished the doctrine of sovereign immunity “ ‘[e]xcept as the General Assembly may provide by law.’ ” Leetaru v. Board of Trustees of the University of Illinois, 2015 IL 117485, ¶ 42, 392 Ill.Dec. 275, 32 N.E.3d 583 (quoting Ill. Const. 1970, art. XIII, § 4 ). Pursuant to that authority, the General Assembly reinstituted the doctrine when it enacted the State Lawsuit Immunity Act (745 ILCS 5/0.01et seq. (West 2012)). Leetaru, 2015 IL 117485, ¶ 42, 392 Ill.Dec. 275, 32 N.E.3d 583. “The doctrine of sovereign immunity exists in Illinois pursuant to the Immunity Act, which mandates that the State or a department of the State cannot be a defendant in an action brought directly in the circuit court, except where the State has expressly consented to be sued.” Watkins v. Office of the State Appellate Defender, 2012 IL App (1st) 111756, ¶ 21, 364 Ill.Dec. 109, 976 N.E.2d 387. The State's consent to be sued must be “ ‘clear and unequivocal.’ ” In re Special Education of Walker, 131 Ill.2d 300, 303, 137 Ill.Dec. 575, 546 N.E.2d 520 (1989) (quoting Martin v. Giordano, 115 Ill.App.3d 367, 369, 71 Ill.Dec. 245, 450 N.E.2d 933 (1983) ).

¶ 12 Sovereign immunity protects the State from interference with the performance of governmental functions and serves to preserve and protect state funds. Lynch v. Department of Transportation , 2012 IL App (4th) 111040, ¶ 21, 365 Ill.Dec. 747, 979 N.E.2d 113. Statutes authorizing costs are in derogation of the common law and therefore must be strictly construed. Williams v. Davenport, 306 Ill.App.3d 465, 469, 239 Ill.Dec. 374, 713 N.E.2d 1224 (1999). “Nothing will be read into such statutes by intendment or implication.” Walker, 131 Ill.2d at 304, 137 Ill.Dec. 575, 546 N.E.2d 520.

¶ 13 B. Waiver of Sovereign Immunity

¶ 14 The defendant contends that sovereign immunity barred an award of attorney fees and costs pursuant to section 5(c) of the Civil Rights Act. We disagree.

¶ 15 Section 5 of the Civil Rights Act prohibits discrimination and provides in pertinent part as follows:

“(a) No unit of State, county, or local government in Illinois shall:

(1) exclude a person from participation in, deny a person the benefits of, or subject a person to discrimination under any program or activity on the grounds of that person's race, color, national origin, or gender; or

(2) utilize criteria or methods of administration that have the effect of subjecting individuals to discrimination because of their race, color, national origin, or gender.

(b) Any party aggrieved by conduct that violates subsection (a) may bring a civil lawsuit, in a federal district court or State circuit court, against the offending unit of government. Any State claim brought in federal district court shall be a supplemental claim to a federal claim. * * * If the court finds that a violation of paragraph (1) or (2) of subsection (a) has occurred, the court may award to the plaintiff actual damages. The court, as it deems appropriate, may grant as relief any permanent or preliminary negative or mandatory injunction, temporary restraining order, or other order.

(c) Upon motion, a court shall award reasonable attorneys' fees and costs, including expert witness fees and other litigation expenses, to a plaintiff who is a prevailing party in any action brought:

(1) pursuant to subsection (b); or

(2) to enforce a right arising under the Illinois Constitution.” 740 ILCS 23/5 (West 2010).²

¶ 16 General enactments imposing liability cannot be applied to the State in the absence of a specific legislative intent to so apply them. Martin, 115 Ill.App.3d at 370, 71 Ill.Dec. 245, 450 N.E.2d 933. In Walker, section 2–1303 of Code of Civil Procedure (ill.rev.stat. 1983, ch. 110, ¶ 2–1303 ) PROVIDED FOR THE PAYMENT OF THE interest at 9% or “6% per annum when the judgment debtor is a unit of local government, * * * a school district, a community college district, or any other governmental entity.” (Internal quotation marks omitted.) Walker, 131 Ill.2d at 303, 137 Ill.Dec. 575, 546 N.E.2d 520. The supreme court found the language “any other governmental entity” was not a “sufficiently clear expression by the legislature to constitute a waiver of the State's immunity.” Walker, 131 Ill.2d at 304, 137 Ill.Dec. 575, 546 N.E.2d 520 ; City of Springfield v. Allphin, 82 Ill.2d 571, 578–79, 45 Ill.Dec. 916, 413 N.E.2d 394 (1980) (general interest statutes do not impose liability for prejudgment or postjudgment interest against the State); see also Department of Revenue v. Appellate Court, 67 Ill.2d 392, 398, 10 Ill.Dec. 536, 367 N.E.2d 1302 (1977) (the State did not consent to the payment of appeal costs where the statute authorizing the imposition of costs did not reference the State).

¶ 17 In Williams, this court addressed whether the State could be held jointly and severally liable for attorney fees and costs of a guardian ad litem by the circuit court. The Illinois Department of Public Aid (the Department) argued that under the Court of Claims Act (705 ILCS 505/8(a) (West 1998)), the Court of Claims had...