                                                           NO. 5-05-0696
                        N O T IC E

 Decision filed 03/06/07. The text of
                                                              IN THE
 this dec ision m ay b e changed or

 corrected prior to the              filing of a
                                                   APPELLATE COURT OF ILLINOIS
 P e t i ti o n   for     Re hea ring   or   the

 disposition of the same.
                              FIFTH DISTRICT
___________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
                                     ) Circuit Court of
  Plaintiff and Respondent,          ) Perry County.
                                                                    )
v.                                                                  ) No. 00-CF-3
                                                                    )
TROY E. DOWNS,                              )
                                            )
   Defendant and Petitioner-Appellee        )
                                            ) Honorable
(The Department of Corrections, Intervening ) James W. Campanella,
Respondent-Appellant).                      ) Judge, presiding.
________________________________________________________________________

                  PRESIDING JUSTICE WELCH delivered the opinion of the court:

                  The Illinois Department of Corrections (the Department) appeals from the orders of

the circuit court of Perry County directing the Department to pay the attorney fees and other

litigation costs associated with the representation of indigent Troy Downs in proceedings

under the Sexually Dangerous Persons Act (the Act) (725 ILCS 205/0.01 et seq. (West

2004)). The Act allows for the confinement, in the Department, of a person deemed to be

suffering from a mental disorder, coupled with criminal propensities to the commission of

sex offenses, who has demonstrated propensities toward acts of sexual assault or molestation

of children. 725 ILCS 205/1.01, 8 (West 2004).

                  Downs, who had been confined under the Act and was indigent, applied to the circuit

court of Perry County for a discharge, and in accordance with section 5 of the Act (725 ILCS

205/5 (West 2004)), an attorney was appointed by that court to represent him. The same

attorney was also appointed to represent Downs in an appeal to this court from the denial of

an earlier petition for a discharge. Subsequently, the attorney filed petitions for interim

                                                                1
attorney fees and costs, seeking reimbursement from the Department. The circuit court

entered orders directing the Department to pay those fees and costs. The Department filed

a motion for leave to intervene and a motion to reconsider the orders directing it to pay the

attorney fees and costs, as well as objections to a further petition for interim attorney fees and

costs. The Department's motion for leave to intervene was granted, but its motion to

reconsider was denied. All the attorney's petitions for interim fees and costs were granted,

and the Department now appeals. The Department filed one appeal from orders entered June

30, 2005, and September 9, 2005, and another from an order entered December 1, 2005. The

two appeals were consolidated by an order of this court.

       The parties agree that no facts are in dispute and that this appeal involves only

questions of law. Accordingly, our review of the trial court's decision is de novo. McGee

v. Snyder, 342 Ill. App. 3d 274, 278 (2003). For reasons that follow, we affirm the orders

of the circuit court.

       In ruling as it did, the circuit court relied on the appellate court's opinion in People v.

Wilcoxen, 358 Ill. App. 3d 1076 (2005). Like the case at bar, Wilcoxen involved an appeal

by the Department from a circuit court order that it pay attorney fees for appointed counsel

who had represented an inmate during discharge proceedings under the Act. On appeal, the

Department argued that the order was prohibited by the doctrine of sovereign immunity. The

appellate court disagreed, holding that the legislature's reinstatement of sovereign immunity

does not apply unless the State has been " 'made a defendant or party' " to the action at issue.

Wilcoxen, 358 Ill. App. 3d at 1078 (quoting 745 ILCS 5/1 (West 2002)). In a proceeding

under the Act, the State is not the defendant, nor does the person subject to proceedings

under the Act "make" the State a party defendant. Wilcoxen, 358 Ill. App. 3d at 1078. To

the contrary, the State chooses to become a party by initiating proceedings under the Act.

Wilcoxen, 358 Ill. App. 3d at 1078. A petition for attorney fees incurred in representing an


                                                2
inmate in proceedings under the Act does not transform the State into a defendant but is a

component of the original action brought by the State. Accordingly, the State is not a "party

defendant" and sovereign immunity does not bar a request for attorney fees. Wilcoxen, 358

Ill. App. 3d at 1078.

       The appellate court went on to hold that the circuit court did not err in ordering the

Department to pay the attorney fees and costs where the inmate was entitled to an attorney

and there was no dispute about his inability to pay the attorney fees. Wilcoxen, 358 Ill. App.

3d at 1078. The court found such an order to be reasonable in light of section 8 of the Act

(725 ILCS 205/8 (West 2002)), which establishes the Director of Corrections as the legal

guardian of a person committed under the Act. The court held that a person's legal guardian

is the correct source for the payment of a person's essential expenses, including the essential

expense of an attorney to represent that person during discharge proceedings under the Act.

Wilcoxen, 358 Ill. App. 3d at 1078-79. The fact of guardianship is what distinguishes a case

involving the Act from other cases relied on by the Department, where no guardianship

responsibility for the inmate exists. Wilcoxen, 358 Ill. App. 3d at 1079. Finally, borrowing

language from People ex rel. Conn v. Randolph, 35 Ill. 2d 24, 29 (1966), the court held, "The

circuit court possessed 'inherent power' to enter an order ensuring that [the inmate]'s attorney

did not suffer an intolerable sacrifice and burden as a result of his appointment." Wilcoxen,

358 Ill. App. 3d at 1079.

       In this appeal, the Department argues that Wilcoxen was wrongly decided in that it

erroneously ignored the well-established rule that courts may not assess litigation costs

against the State in civil actions absent affirmative statutory language expressly authorizing

such an award. Indeed, the Department is correct that a party may not recover from the State,

or one of its agencies, attorney fees or other litigation costs in a civil action unless there is

affirmative statutory language reflecting the State's consent to the imposition of costs against


                                               3
it. See Department of Revenue v. Appellate Court of Illinois, First District, 67 Ill. 2d 392,

396 (1977); Williams v. Davenport, 306 Ill. App. 3d 465, 469 (1999). However, we agree

with the decision in Wilcoxen that the Act does, in fact, authorize the imposition of costs

against the State for the representation of indigent inmates.

       As the court in Wilcoxen pointed out, section 8 of the Act provides that, upon

determining that an individual is a sexually dangerous person under the Act, the court shall

appoint the Director of Corrections as the guardian of the person for that individual, and the

individual shall stand committed to the custody of that guardian. 725 ILCS 205/8 (West

2004). Thus, under the Act, the State, not the county, has guardianship responsibilities for

the inmate. Thus, the Department is the appropriate source, if the inmate is indigent, for the

payment of the inmate's expenses incurred in proceedings under the Act.

       We also agree with Wilcoxen that it is this guardianship relationship, established by

the Act, which distinguishes this case from those cited by the Department in support of its

position. For example, in In re Detention of Campbell, 319 Ill. App. 3d 621 (2001), we held

that a trial court erred in ordering the Department to pay the court-appointed attorney fees

of an individual, incarcerated in the Department, who was adjudicated a sexually violent

person under the Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq. (West

1998)). Unlike the Act in the case at bar, the Sexually Violent Persons Commitment Act

does not establish a guardianship relationship between the Department and the committed

individual.

       The Department also argues that the holding in Wilcoxen that sovereign immunity did

not bar the imposition of attorney fees and costs against the State is wrong. Again, we agree

with the decision in Wilcoxen. The doctrine of sovereign immunity bars only actions brought

against the State, not actions brought by the State. The State initiates proceedings under the

Act, just as it does in criminal prosecutions. 725 ILCS 205/3 (West 2004). The claim for


                                              4
attorney fees and costs is not a separate action brought against the State but, as Wilcoxen

held, a component of the action brought by the State under the Act. Wilcoxen, 358 Ill. App.

3d at 1078. A claim for court-appointed attorney fees is not akin to a counterclaim seeking

damages in tort, like that deemed barred by sovereign immunity in People ex rel. Manning

v. Nickerson, 184 Ill. 2d 245, 249 (1998). The Department's argument that sovereign

immunity bars a claim for attorney fees and costs against the Department was rejected by the

appellate court in Wilcoxen, and we choose to follow that precedent here.

       Finally, we note that the legislature has not acted to amend the Act in light of the

Wilcoxen decision, despite the opportunity to do so. It is axiomatic that where a statute has

been judicially construed and the construction has not evoked an amendment, it will be

presumed that the legislature has acquiesced in the court's exposition of the legislative intent.

People v. Hairston, 46 Ill. 2d 348, 353 (1970). Indeed, section 9 of the Act, which deals with

applications for discharge such as the one in the case at bar, was amended after the decision

in Wilcoxen, to reflect the proper burden of proof as set forth by the supreme court in People

v. Trainor, 196 Ill. 2d 318, 335 (2001). 725 ILCS 205/9 (West Supp. 2005). It was not,

however, amended to reflect the holding in Wilcoxen. The legislature is presumed to know

the judicial construction that a statute has been given, and when the legislature reenacts a

statute without modification, it is assumed to have intended the same effect. People ex rel.

Klaeren v. Village of Lisle, 316 Ill. App. 3d 770, 782 (2000), aff'd, 202 Ill. 2d 164 (2002).

Accordingly, we find that section 8 of the Act (725 ILCS 205/8 (West 2004)) authorizes an

award against the Department for the attorney fees and costs incurred in the representation

of an indigent inmate in proceedings under the Act and that such an award is not prohibited

by the State's sovereign immunity.

       For the foregoing reasons, the orders of the circuit court of Perry County are hereby

affirmed.


                                               5
Affirmed.



CHAPMAN and WEXSTTEN 1 , JJ., concur.




1
    Justice Wexstten has read the briefs and listened to the audiotape of oral argument.

                                         6
                                           NO. 5-05-0696

                                               IN THE

                                APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

      THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
                                           ) Circuit Court of
        Plaintiff and Respondent,          ) Perry County.
                                                      )
      v.                                              ) No. 00-CF-3
                                                      )
      TROY E. DOWNS,                              )
                                                  )
         Defendant and Petitioner-Appellee        )
                                                  ) Honorable
      (The Department of Corrections, Intervening ) James W. Campanella,
      Respondent-Appellant).                      ) Judge, presiding.
___________________________________________________________________________________

Opinion Filed:        March 6, 2007
___________________________________________________________________________________

Justices:           Honorable Thomas M. Welch, P.J.

                 Honorable Melissa A. Chapman, J., and
                 Honorable James M. Wexstten, J.,
                 Concur
___________________________________________________________________________________

Attorneys        Lisa Madigan, Attorney General, State of Illinois, Gary Feinerman, Solicitor General,
for              John P. Schmidt, Assistant Attorney General, 100 West Randolph Street, 12th Floor,
Appellant        Chicago, IL 60601
___________________________________________________________________________________

Attorney         Ellen Jenkins Curry, 302 Public Square, P.O. Box 1611, Benton, IL 62812
for
Appellee
___________________________________________________________________________________
