                       Illinois Official Reports

                               Appellate Court



                  Grey v. Hasbrouck, 2015 IL App (1st) 130267



Appellate Court   LAUREN GREY, VICTOR WILLIAMS, and NICHOLAS
Caption           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.



District & No.    First District, Sixth Division
                  Docket No. 1-13-0267



Filed             May 22, 2015



Decision Under    Appeal from the Circuit Court of Cook County, No. 11-CH-17091; the
Review            Hon. Michael B. Hyman, Judge, presiding.



Judgment          Affirmed.



Counsel on        Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Appeal            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.
     Panel                       JUSTICE HALL delivered the judgment of the court, with opinion.
                                 Presiding Justice Hoffman and Justice Lampkin concurred in the
                                 judgment and opinion.


                                                   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

             1
              The original defendant was Damon T. Arnold, then the State Registrar of Vital Records.

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       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; see Hadley
       v. Department of Corrections, 362 Ill. App. 3d 680, 683 (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.

¶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 (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 5/0.01 et seq. (West 2012)). Leetaru, 2015 IL 117485,
       ¶ 42. “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. The
       State’s consent to be sued must be “ ‘clear and unequivocal.’ ” In re Special Education of
       Walker, 131 Ill. 2d 300, 303 (1989) (quoting Martin v. Giordano, 115 Ill. App. 3d 367, 369
       (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. 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 (1999). “Nothing will be read into such statutes by
       intendment or implication.” Walker, 131 Ill. 2d at 304.

¶ 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

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                        (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. 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. 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;
       City of Springfield v. Allphin, 82 Ill. 2d 571, 578-79 (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 (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 exclusive jurisdiction of claims against
       the State. Therefore, the circuit court’s order was void for lack of subject matter jurisdiction.
       Williams, 306 Ill. App. 3d at 467-68. This court agreed, finding that section 506(b) of the
       Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/506(b) (West 1998)), which
       provided for the payment of the attorney fees and costs of the guardian ad litem, did not
       contain an explicit waiver of the State’s immunity that would amount to its consent to pay the
       fees for the guardian ad litem. Williams, 306 Ill. App. 3d at 469. We determined that the
       language in section 506, “ ‘any adult party,’ ” was not specific enough to constitute a waiver
       of sovereign immunity for the payment of attorney fees. Williams, 306 Ill. App. 3d at 469;
       see Department of Revenue, 67 Ill. 2d at 396-98 (holding that, in the absence of a specific

           2
            Neither the plaintiffs’ status as prevailing parties nor the reasonableness of the attorney fees and
       costs are at issue in this appeal.

                                                       -4-
       reference to the State, terms such as “any person” and “either party” were not specific
       enough to impose fees and costs against the Department for the printing of transcripts).
¶ 18        The defendant does not dispute that the plaintiffs had the right to sue the defendant
       pursuant to section 5(a) of the Civil Rights Act but argues that section 5(c) of the Civil
       Rights Act does not contain a clear unequivocal and affirmative expression of the State’s
       consent to be liable for attorney fees because there is no specific reference to the State in
       section 5(c). The fact that section 5(c) contains no specific reference to the State is not
       determinative of whether the State has waived immunity for purposes of the imposition of
       attorney fees under the Civil Rights Act. When the court addresses whether the State has
       waived sovereign immunity, “[t]he critical issue is whether the legislature intended to impose
       liability upon the State–not how or where the intent is expressed.” Martin, 115 Ill. App. 3d at
       370.
¶ 19        In construing a statute, the court’s primary goal is to ascertain and give effect to the intent
       of the legislature. NAB Bank v. LaSalle Bank, N.A., 2013 IL App (1st) 121147, ¶ 10.
       “[L]egislative intent must be garnered from a review of the entire statutory plan.” Cullen v.
       Retirement Board of the Policeman’s Annuity & Benefit Fund, 271 Ill. App. 3d 1105, 1109
       (1995). “The statutory provision must be read as a whole and all relevant parts should be
       considered.” Lohr v. Havens, 377 Ill. App. 3d 233, 236 (2007). A court should not read
       language into a statute that does not exist. Lohr, 377 Ill. App. 3d at 236.
¶ 20        The legislature subjected the State to the provisions of the Civil Rights Act. Section 5(a)
       specifically refers to the “State” as an entity of government that can be sued under section
       5(b). Section 5(c) provides that the court may award attorney fees and costs to a party who
       prevails in any action brought pursuant to section 5(b), or to enforce a right arising under the
       Illinois Constitution. After allowing the State to be sued under the Civil Rights Act, the
       legislature, had it wished to exempt the State from the obligation of paying attorney fees and
       costs as provided therein, could have done so. As our supreme court observed recently in
       Illinois State Treasurer v. Illinois Workers’ Compensation Comm’n, 2015 IL 117418, “where
       the legislature wishes to excuse the State or other entities from filing and other fees imposed
       by the circuit court in connection with litigation, it knows how and has done so expressly.”
       Illinois State Treasurer, 2015 IL 117418, ¶ 35 (citing 705 ILCS 105/27.2a (dd), 27.1a(dd),
       27.2(dd) (West 2012)).
¶ 21        To accept the defendant’s argument would require this court to read into the statute an
       exemption for the State that the legislature could have but did not provide in section 5(c).
       Construing section 5 of the Civil Rights Act as a whole, the State consented to be sued and,
       therefore, consented to pay attorney fees and costs to the prevailing party. Sovereign
       immunity does not bar an award of attorney fees and costs pursuant to section 5(c) of the
       Civil Rights Act against the State.

¶ 22                       C. Officer Suit Exception to Sovereign Immunity
¶ 23       Assuming, arguendo, that the doctrine of sovereign immunity barred the award of
       attorney fees and costs against the State, we agree with the circuit court that the award of
       attorney fees and costs to the plaintiffs was proper since the officer suit exception to
       sovereign immunity applied in this case.
¶ 24       “[T]he determination of whether a suit is against the State is dependent on the issues
       involved and the relief sought rather than by the formal identification of the parties.” Herget

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       National Bank of Pekin v. Kenney, 105 Ill. 2d 405, 408 (1985). “ ‘When the State will be
       directly and adversely affected by the judgment or decree, making the State the real party
       against whom relief is sought, the suit is against the State.’ ” Herget, 105 Ill. 2d at 408-09
       (quoting Hudgens v. Dean, 75 Ill. 2d 353, 357 (1979)). There is a recognized presumption
       that the State or a department thereof cannot violate the constitution or the laws of the State.
       Herget, 105 Ill. 2d at 411. Where such a violation takes place, the violation is “deemed to be
       made ‘by a State officer or the head of a department of the State, and such officer or head
       may be restrained by proper action instituted by a citizen.’ ” Herget, 105 Ill. 2d at 411
       (quoting Schwing v. Miles, 367 Ill. 436, 441-42 (1937).
¶ 25       Under the “officer suit exception,” “when the action of a state officer is undertaken
       without legal authority, such action ‘strips a State officer of his official status *** [and] his
       conduct is not then regarded as the conduct of the State, nor is the action against him
       considered an action against the State.’ ” PHL, Inc. v. Pullman Bank & Trust Co., 216 Ill. 2d
       250, 261 (2005) (quoting Moline Tool Co. v. Department of Revenue, 410 Ill. 35, 37 (1951)).
       Where the plaintiff is not attempting to enforce a present claim against the State but rather
       seeks to enjoin the defendant from taking actions in excess of his delegated authority, and in
       violation of the plaintiff’s protectable legal interests, the suit does not contravene the
       immunity prohibition. Bio-Medical Laboratories, Inc. v. Trainor, 68 Ill. 2d 540, 548 (1977).
¶ 26       In the present case, the plaintiffs did not seek money damages, only injunctive and
       declaratory relief aimed at enjoining the defendant from his practice of refusing to issue new
       birth certificates to the plaintiffs and the members of the class as he was required to do under
       section 17(1)(d) of the Vital Statistics Act. The consent decree provided:
                    “Defendant is enjoined from denying applications for a change in the sex
               designation on persons’ existing Illinois birth records solely because those individuals
               have not undergone genital reconstruction surgery to match their internal sense of
               gender. This consent decree is not intended to change, alter or limit any other
               statutory requirement of the Illinois Vital Records Act [citation].
                                                     ***
                    Defendant shall, within thirty (30) days, post on the Illinois Department of Public
               Health website a clarification that genital reconstruction surgery is no longer a
               requirement for obtaining a change in the sex designation on an existing Illinois birth
               certificate.”
¶ 27       In this case, the defendant imposed a condition on the issuance of birth certificates not
       previously required under section 17(1)(d) and absent a change to section 17(1)(d).
       Therefore, the defendant exceeded his authority under the Vital Records Act and violated the
       plaintiffs’ and the class members’ rights under the Vital Records Act and their rights to
       privacy and due process under the Illinois Constitution. The injunctive and declaratory relief
       that was granted did not directly or adversely affect the State. The fact that the plaintiffs
       sought attorney fees and costs did not transform the plaintiffs’ lawsuit into one against the
       State. “[T]he mere fact that a successful action would cause money to be paid from the state
       treasury does not mean that the action is one against the State.” Wilson v. Quinn, 2013 IL
       App (5th) 120337, ¶ 15 (the plaintiffs’ suit seeking declaratory relief, costs and other
       equitable relief was not an attempt to impose liability in tort or contract on the State); in
       accord Illinois County Treasurers’ Ass’n v. Hamer, 2014 IL App (4th) 130286.


                                                   -6-
¶ 28       State Building Venture v. O’Donnell, 239 Ill. 2d 151 (2010), is distinguishable. In that
       case, count III of State Building Venture’s (SBV) complaint sought a declaratory judgment,
       finding that a lease, including renewal options, was binding, and to award costs, expenses
       and fees. State Building Venture, 239 Ill. 2d at 156. The supreme court found that “[i]n effect,
       count III of SBV’s complaint seeks a determination of its renewal rights, a claim founded on
       a contract entered into between SBV and the state. Additionally, count III of SBV’s
       ‘declaratory judgment action’ asks for a finding that ‘the Enabling Statute authorized the
       State to enter into the Lease with [SBV].’ This claim falls squarely within the exclusive
       jurisdiction of the Court of Claims.” State Building Venture, 239 Ill. 2d at 164-65. In contrast,
       like the plaintiffs in Illinois County Treasurers’ Ass’n and Wilson, in the present case, the
       plaintiffs’ lawsuit was not an attempt to impose liability in contract or tort on the State.
       Therefore, the award of attorney fees and costs to the plaintiffs was proper under the state
       officer exception to sovereign immunity.

¶ 29                                          CONCLUSION
¶ 30      We conclude that in section 5 of the Civil Rights Act, the State waived sovereign
       immunity when it consented to be sued, and in the absence of any language that limited its
       consent or exempted it from the provisions of section 5(c), the State’s consent extended to
       paying the plaintiffs, as prevailing parties, reasonable attorney fees and costs. We further
       conclude that the circuit court’s award of attorney fees and costs to the plaintiffs was proper
       under the state officer exception to the doctrine of sovereign immunity.
¶ 31      The judgment of the circuit court is affirmed.

¶ 32      Affirmed.




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