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                                   Appellate Court                           Date: 2017.01.20
                                                                             09:36:41 -06'00'




             Thomann v. Department of State Police, 2016 IL App (4th) 150936



Appellate Court        MATTHEW D. THOMANN; SAMUEL FINNIGAN, JR.; DEANNA
Caption                M. KNOLL; and ILLINOIS CARRY, Plaintiffs-Appellants, v. THE
                       DEPARTMENT OF STATE POLICE, a Division of the State of
                       Illinois; LEO P. SCHMITZ, in His Official Capacity as Director of
                       State Police; THE CONCEALED CARRY LICENSING REVIEW
                       BOARD, an Independent State Authority Created by the Firearm
                       Concealed Carry Act; SERGIO ACOSTA, in His Official Capacity as
                       Member of the Concealed Carry Licensing Review Board;
                       ROBINZINA BRYANT, in Her Official Capacity as Member of the
                       Concealed Carry Licensing Review Board; JAMES CAVANAUGH,
                       in His Official Capacity as Member of the Concealed Carry Licensing
                       Review Board; VIRGINIA WRIGHT, in Her Official Capacity as
                       Member of the Concealed Carry Licensing Review Board; JOHN
                       CHELSLEY, in His Official Capacity as Member of the Concealed
                       Carry Licensing Review Board; JOHN DIWIK, in His Official
                       Capacity as Member of the Concealed Carry Licensing Review Board;
                       and G. PATRICK MURPHY, in His Official Capacity as Member of
                       the Concealed Carry Licensing Review Board, Defendants-Appellees.



District & No.         Fourth District
                       Docket No. 4-15-0936



Filed                  October 18, 2016



Decision Under         Appeal from the Circuit Court of Sangamon County, No. 14-MR-392;
Review                 the Hon. Rudolph M. Braud, Jr., Judge, presiding.
     Judgment                 Affirmed.



     Counsel on               William N. Howard and Keith L. Gibson, of Locke Lord LLP, of
     Appeal                   Chicago, and David H. Thompson, Peter A. Patterson, and John D.
                              Ohlendorf (argued), of Cooper & Kirk, PLLC, of Washington, D.C.,
                              for appellants.

                              Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,
                              Solicitor General, and Paul Racette (argued), Assistant Attorney
                              General, of counsel), for appellees.



     Panel                    PRESIDING JUSTICE KNECHT delivered the judgment of the court,
                              with opinion.
                              Justices Turner and Holder White concurred in the judgment and
                              opinion.


                                               OPINION

¶1         Plaintiffs, Illinois Carry, an organization supporting the concealed carrying of firearms,
       and three individuals, Matthew Thomann, Samuel Finnigan, Jr., and Deanna Knoll, appeal
       from the circuit court’s order dismissing their petition for attorney fees and costs against
       defendants, the Illinois Department of State Police (Department), the Department’s then
       director, the Concealed Carry Licensing Review Board (Board), and the Board’s then
       members. The sole issue on appeal is whether the circuit court’s dismissal was in error. We
       affirm.

¶2                                         I. BACKGROUND
¶3         In July 2013, the General Assembly enacted the Firearm Concealed Carry Act (Concealed
       Carry Act) (430 ILCS 66/1 to 999 (West 2014)), granting eligible citizens the right to carry
       firearms in public. To be eligible for a concealed carry license, an applicant must be found to
       “not pose a danger to himself, herself, or others, or a threat to public safety.” 430 ILCS
       66/10(a)(4) (West 2014). Where an objection to a concealed carry license application is
       submitted on this ground, the Board is tasked with considering and ruling on the objection. 430
       ILCS 66/15(a), 20(a) (West 2014); see Merritt v. Department of State Police, 2016 IL App
       (4th) 150661, ¶¶ 15-18, 56 N.E.3d 593 (overview of the Concealed Carry Act).
¶4         In April 2014, plaintiffs filed a two-count complaint against defendants, alleging the
       Board’s procedures in evaluating objections to concealed carry license applications violated
       their due process rights (Ill. Const. 1970, art. I, § 2) by failing to provide notice or an
       opportunity to respond to the objections. Count I of plaintiffs’ complaint—an action for
       declaratory and injunctive relief—sought a declaration defendants violated their due process

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       rights and an injunction requiring they be given hearings that comport with due process. Count
       II of plaintiffs’ complaint—an action for administrative review—sought an order reversing the
       Board’s decision with respect to applications filed by Thomann and unidentified Illinois Carry
       members and remanding for further proceedings that comport with due process. Both counts
       sought attorney fees and costs under subsection 5(c) of the Illinois Civil Rights Act of 2003
       (Civil Rights Act) (740 ILCS 23/5(c) (West 2014)).
¶5         In June 2014, defendants filed a motion to dismiss count I and a memorandum in support.
       Defendants asserted count I was an impermissible attempt to seek judicial review of the
       Board’s decisions by means other than under the Administrative Review Law (735 ILCS
       5/3-101 to 3-113 (West 2014)). Plaintiffs later filed a response to defendants’ motion to
       dismiss count I, and defendants filed a reply to plaintiffs’ response.
¶6         On July 23, 2014, defendants filed a motion to dismiss the entire action as it related to
       Finnigan, a motion to dismiss count II as it related to unnamed license applicants, and a
       memorandum in support of their motions. As to the motion to dismiss the entire action as it
       related to Finnigan, defendants asserted Finnigan had previously filed a separate action for
       administrative review, which was resolved by an agreed order remanding the matter to the
       Board for reconsideration. Defendants attached to their motion a copy of an emergency
       amendment (38 Ill. Reg. 19571 (emergency amendment eff. Sept. 18, 2014)), which provided
       that applicants be given notice and an opportunity to respond to objections to their concealed
       carry license applications. The emergency amendment was later revised (39 Ill. Reg. 1518 (eff.
       Jan. 6, 2015)) and then became a permanent rule (20 Ill. Adm. Code 2900.140(e) (eff. Jan. 23,
       2015)). As to the motion to dismiss count II relating to unnamed license applicants, defendants
       asserted it was impossible to file an answer, which would include an individual’s
       administrative records, where plaintiffs failed to provide the applicants’ identifying
       information. Plaintiffs later filed a response to defendants’ motions to dismiss, and defendants
       filed a reply to plaintiffs’ response.
¶7         In September 2014, the circuit court, without explicitly ruling on defendants’ motions to
       dismiss, (1) remanded the matter to the Board for reconsideration of the applications filed by
       Thomann, Finnigan, and Knoll, and (2) granted plaintiffs leave to amend to provide identifying
       information regarding those individuals on whose behalf relief was sought. The court reserved
       ruling on all other issues.
¶8         In October 2014, plaintiffs filed an amended complaint, largely mirroring their original
       complaint but including the names of 36 additional license applicants who sought relief under
       count I, 21 of whom also sought relief under count II.
¶9         In February 2015, defendants filed a motion to dismiss count I of plaintiffs’ amended
       complaint and a memorandum in support. Defendants again asserted count I was an
       impermissible attempt to obtain judicial review of the Board’s decisions by means other than
       under the Administrative Review Law (735 ILCS 5/3-101 to 3-113 (West 2014)). Defendants
       also noted that, in the interest of finality, the circuit court should construe plaintiffs’ amended
       complaint to request administrative review in count II for all identified individuals in count I
       and remand each case for reconsideration.
¶ 10       In March 2015, the circuit court entered an agreed order remanding to the Board under the
       Administrative Review Law (id.) the license applications filed by 29 applicants for
       reconsideration. Plaintiffs withdrew their request for relief as to the seven additional


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       applicants. The court further dismissed count I of plaintiffs’ amended complaint as moot and
       ordered plaintiffs to file any fee petition within 30 days.
¶ 11       In April 2015, plaintiffs filed a petition for attorney fees and costs and a memorandum in
       support. Plaintiffs asserted, under subsection 5(c) of the Civil Rights Act (740 ILCS 23/5(c)
       (West 2014)), that they were entitled to attorney fees and costs as they brought a suit “to
       enforce a right arising under the Illinois Constitution” and prevailed by (1) obtaining some of
       their requested relief through a judgment requiring the Board to reconsider their license
       applications under revised procedures and (2) serving as a catalyst for the unilateral change of
       the Board’s procedures. Plaintiffs provided a detailed explanation of incurred fees and costs,
       which totaled $181,389.94.
¶ 12       On May 4, 2015, defendants filed a motion to dismiss plaintiffs’ fee petition and a
       supporting memorandum. Defendants asserted dismissal was appropriate as (1) subsection
       5(c) of the Civil Rights Act (id.) included no express waiver of sovereign immunity and (2)
       plaintiffs failed to establish they were a prevailing party.
¶ 13       On May 28, 2015, plaintiffs filed a reply in support of their fee petition. Plaintiffs asserted,
       in relevant part, that “an action brought under the administrative review law—no less than an
       action brought in chancery for injunctive relief—can, if the plaintiff prevails, form the basis for
       a fee award under [subsection 5(c) (id.)], so long as the underlying right at issue ‘aris[es] under
       the Illinois Constitution.’ ” (Emphasis in original.)
¶ 14       In August 2015, the circuit court held a hearing on plaintiffs’ fee petition. A transcript from
       the hearing or a bystander’s report is not included in the record on appeal.
¶ 15       In October 2015, the circuit court issued a written order, granting defendants’ motion to
       dismiss plaintiffs’ fee petition. As to count I, the court found, because the Administrative
       Review Law was the sole method by which the license denials could be judicially reviewed,
       the collateral attack on those decisions was frivolous, preventing plaintiffs from recovery
       under the catalyst theory. As to count II, the court rejected plaintiffs’ assertion that subsection
       5(c) “provide[d] statutory authority for the recovery of attorney’s fees for any claim in which a
       constitutional right is arguably implicated” as plaintiffs provided no authority and it was
       “unaware of any case relating to the Administrative Review Law in which the [Civil Rights
       Act] provid[ed] for attorney’s fees based upon the allegation of insufficient procedural due
       process.” Rather, the court found, “[t]he proper characterization of this matter is an action to
       enforce rights arising under a state statute, the Administrative Review Law[, and not] an action
       to enforce rights arising under the Illinois Constitution.”
¶ 16       This appeal followed.

¶ 17                                           II. ANALYSIS
¶ 18       On appeal, plaintiffs argue that the circuit court erred in concluding (1) count I of its
       complaint was frivolous and (2) count II did not constitute an action brought to enforce a state
       constitutional right. Plaintiffs maintain they are entitled to a fully compensatory award under
       subsection 5(c) of the Civil Rights Act (id.) because they are a prevailing party in an action
       brought to enforce a state constitutional right.
¶ 19       Defendants maintain that the circuit court’s dismissal of plaintiffs’ fee petition was proper.
       In support, defendants assert (1) the statutory authority on which plaintiffs sought attorney fees
       and costs—subsection 5(c) of the Civil Rights Act—inapplicable as the fee-shifting provisions


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       contained therein apply only to discrimination claims involving identified suspect classes; (2)
       even if subsection 5(c) is applicable, plaintiffs’ claim is barred by sovereign immunity; and (3)
       even if the subsection 5(c) is applicable and plaintiffs’ claim is not barred by sovereign
       immunity, plaintiffs failed to establish they are entitled to attorney fees and costs.

¶ 20                                     A. Motion to Strike
¶ 21       As an initial matter, defendants request we strike and disregard portions of plaintiffs’
       statement of facts containing impermissive argument and comment in violation of Illinois
       Supreme Court Rule 341(h)(6) (eff. Jan. 1, 2016). In a footnote of their reply brief, plaintiffs
       disagree with defendants’ characterization of their statement of facts. Plaintiffs note the
       examples defendants highlight principally relate to their description of the Board’s prior
       practices as unconstitutional. Plaintiffs assert defendants have never contested the
       unconstitutionality of the Board’s prior practices, and they find it difficult to see how
       defendants could make such an objection given the current state of the law. As the sole issue on
       appeal is whether plaintiffs are entitled to attorney fees and costs, we will disregard any
       improper argument or commentary unrelated to the issue presented.

¶ 22                                          B. Civil Rights Act
¶ 23        Defendants assert the circuit court properly dismissed plaintiffs’ fee petition as the
       statutory authority on which plaintiffs sought attorney fees and costs—subsection 5(c) of the
       Civil Rights Act (740 ILCS 23/5(c) (West 2014))—is inapplicable. Defendants maintain the
       fee-shifting provisions in subsection 5(c) apply only to discrimination claims involving
       identified suspect classes.
¶ 24        Plaintiffs contend defendants have forfeited their argument by failing to press it in the
       circuit court. We disagree. “The appellant bears the burden to present a record on appeal
       sufficient to support his claims of error, and this court will resolve any doubts arising from an
       incomplete record against the appellant.” People v. Mitchell, 395 Ill. App. 3d 161, 165-66, 916
       N.E.2d 624, 628 (2009). Plaintiffs, as appellants, have denied this court the benefit of
       reviewing the arguments made and discussions had during the fee-petition hearing by failing to
       include in the record on appeal a transcript from the hearing or a bystander’s report. See Ill. S.
       Ct. R. 323(a) (eff. Dec. 13, 2005). Moreover, it is well established that (1) “ ‘the appellee may
       urge any point in support of the judgment on appeal, even though not directly ruled on by the
       trial court, so long as the factual basis for such point was before the trial court’ ” (Beahringer v.
       Page, 204 Ill. 2d 363, 370, 789 N.E.2d 1216, 1222 (2003) (quoting Shaw v. Lorenz, 42 Ill. 2d
       246, 248, 246 N.E.2d 285, 287 (1969))); (2) we review “the trial court’s judgment, not the
       reasoning the court employed” (City of Chicago v. Holland, 206 Ill. 2d 480, 491, 795 N.E.2d
       240, 247 (2003)); and (3) “we may affirm [the trial court’s judgment] on any basis supported
       by the record” (People v. Greco, 204 Ill. 2d 400, 414, 790 N.E.2d 846, 855 (2003)).
¶ 25        Whether the statutory authority on which plaintiffs sought attorney fees and costs is
       applicable is a question of law, which we review de novo. Klaine v. Southern Illinois Hospital
       Services, 2016 IL 118217, ¶ 13, 47 N.E.3d 966. Our primary objective in construing statutory
       provisions is to ascertain and give effect to the intent of the legislature. Id. ¶ 14. The most
       reliable indicator of legislative intent is the language of the statute. Id. Where the language is
       clear and unambiguous, the statute must be given effect as written, without resorting to other
       aids of statutory construction. Id.

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¶ 26       It must further be noted that “Illinois follows the ‘American Rule,’ which provides that,
       absent statutory authority or a contractual agreement, each party must bear its own attorney
       fees and costs.” Housing Authority v. Lyles, 395 Ill. App. 3d 1036, 1038, 918 N.E.2d 1276,
       1278 (2009); see also City of Champaign v. Madigan, 2013 IL App (4th) 120662, ¶ 55, 992
       N.E.2d 629 (noting “[w]here the General Assembly has intended to provide fees in
       administrative review proceedings, it has specifically done so”). “Statutes permitting the
       recovery of costs are in derogation of the common law and must be strictly construed.” Negro
       Nest, LLC v. Mid-Northern Management, Inc., 362 Ill. App. 3d 640, 642, 839 N.E.2d 1083,
       1085 (2005).
¶ 27       Section 5 of the Civil Rights Act (740 ILCS 23/5 (West 2014))—the only section of the
       Civil Rights Act—is titled “Discrimination prohibited” and provides:
                   “(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. This lawsuit must be brought not later than 2 years after the
               violation of subsection (a). 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.
                   In awarding reasonable attorneys’ fees, the court shall consider the degree to which
               the relief obtained relates to the relief sought.
                   (d) For the purpose of this Act, the term ‘prevailing party’ includes any party:
                       (1) who obtains some of his or her requested relief through a judicial judgment
                   in his or her favor;
                       (2) who obtains some of his or her requested relief through any settlement
                   agreement approved by the court; or
                       (3) whose pursuit of a non-frivolous claim was a catalyst for a unilateral change
                   in position by the opposing party relative to the relief sought.”
¶ 28       The parties do not dispute that subsections 5(a) and 5(b) create a state statutory cause of
       action for discrimination claims based on race, color, national origin, or gender, and subsection
       5(c)(1) provides for the recovery of attorney fees and costs to a prevailing party in a
       discrimination claim brought under subsections 5(a) and 5(b). The parties disagree, however,

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       as to applicability of the fee-shifting provision contained in subsection 5(c)(2). Plaintiffs assert
       the clear and unambiguous text of subsection 5(c)(2) mandates the award of reasonable
       attorney fees and costs to a prevailing party in any claim arising under the Illinois Constitution.
       Conversely, defendants assert the text of subsection 5(c)(2) must be read in the context of the
       entire statute, which they maintain indicates the legislature was simply authorizing fees and
       costs for the entire action when a party chooses to bring a discrimination claim under both the
       Civil Rights Act and the state equal protection clause (Ill. Const. 1970, art. I, § 2).
¶ 29       While plaintiffs’ reading of the isolated language in subsection 5(c)(2) may appear clear
       and unambiguous, we must read that language in the context of the entirety of section 5. See
       First American Bank Corp. v. Henry, 239 Ill. 2d 511, 517, 942 N.E.2d 1262, 1265 (2011). In
       context, we find plaintiffs’ expansive interpretation of the fee-shifting provision in subsection
       5(c)(2) as applying to a prevailing party of any claim arising under the Illinois Constitution,
       regardless of the subject matter or the context in which it was brought, contrary to the statutory
       scheme. Rather, we find that the fee-shifting provisions in subsection 5(c) provide for attorney
       fees and costs only where the claimant is a prevailing party on a discrimination claim against a
       governmental body involving one or more of the identified suspect classes.
¶ 30       Plaintiffs assert that such an interpretation renders the language regarding the Illinois
       Constitution in subsection 5(c)(2) meaningless and impermissibly imposes limiting language.
       We disagree. We are mindful that statutes must be construed so no term is rendered
       superfluous or meaningless, and we must not depart from the plain language of a statute by
       reading into it exceptions, limitations, or conditions that conflict with the legislative intent.
       JPMorgan Chase Bank, N.A. v. Earth Foods, Inc., 238 Ill. 2d 455, 461, 939 N.E.2d 487,
       490-91 (2010). Subsections 5(a) and 5(b) create a state statutory cause of action for a claim of
       discrimination based on a suspect class. The basis of that claim could also be subject to a state
       constitutional cause of action under the equal protection clause (Ill. Const. 1970, art. I, § 2).
       The language regarding the Illinois Constitution allows a prevailing party who brought a
       discrimination claim on both statutory and constitutional grounds to be entitled to attorney fees
       and costs for the entire action.
¶ 31       Plaintiffs contend, citing Ardt v. State of Illinois, 292 Ill. App. 3d 1059, 1065, 687 N.E.2d
       126, 130 (1997), that a court would never be called upon to allocate fees and costs attributable
       to a claim brought under both section 5 of the Civil Rights Act (740 ILCS 23/5 (West 2014))
       and the state equal protection clause (Ill. Const. 1970, art. I, § 2) as both actions would arise
       from the same common core of facts or related legal theories. However, as the court observed
       in Ardt, such a proposition may not always be equally applied. Ardt, 292 Ill. App. 3d at 1066,
       687 N.E.2d at 131 (noting contrasting results in cases for claims brought under the Consumer
       Fraud and Deceptive Business Practices Act (815 ILCS 505/10a(c) (West 1992))). The
       legislature’s decision to include clarifying language rather than relying on the interpretation of
       the courts does not render the language meaningless.
¶ 32       Plaintiffs also cite Grey v. Hasbrouck, 2015 IL App (1st) 130267, 33 N.E.3d 819, which
       they assert “implicitly” rejected the suggestion the fee-shifting provisions in subsection 5(c) of
       the Civil Rights Act (740 ILCS 23/5(c) (West 2014)) are limited to certain discrimination
       claims. We disagree. In Grey, the court was neither presented with nor did it address such an
       argument. In fact, the court explicitly noted the defendant did “not dispute that the plaintiffs
       had the right to sue *** [under] section 5(a) of the Civil Rights Act.” Grey, 2015 IL App (1st)


                                                    -7-
       130267, ¶ 18, 33 N.E.3d 819. Accordingly, we find Grey to be inapposite to the issue before
       us.
¶ 33       As plaintiffs did not bring a discrimination claim against a governmental body involving
       one or more of the identified suspect classes, the fee-shifting provisions contained in
       subsection 5(c) of the Civil Rights Act (740 ILCS 23/5(c) (West 2014)) are inapplicable. The
       circuit court’s dismissal of plaintiffs’ fee petition may be affirmed on this ground, and we need
       not address the court’s additional bases for dismissal.

¶ 34                                      III. CONCLUSION
¶ 35      We affirm the circuit court’s judgment.

¶ 36      Affirmed.




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