                                 2015 IL App (1st) 130267
                                      No. 1-13-0267
                                Opinion Filed May 22, 2015

                                                            Sixth Division
______________________________________________________________________________

                                         IN THE

                           APPELLATE COURT OF ILLINOIS

                                    FIRST DISTRICT

______________________________________________________________________________

LAUREN GREY, VICTOR WILLIAMS,                  ) Appeal from the Circuit Court
and NICHOLAS GUARINO, on Behalf of             ) of Cook County.
Themselves and All Persons Similarly Situated, )
                                               ) No. 11 CH 17091
        Plaintiffs-Appellees,                  )
                                               )
        v.                                     )
                                               )
LA MAR HASBROUCK, M.D., Director of the ) Honorable
Department of Public Health, in His            ) Michael B. Hyman,
Official Capacity as State Registrar of Vital  ) Judge Presiding.
Records,                                       )
                                               )
        Defendant-Appellant.                   )
___________________________________________________________________


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

             Presiding Justice Hoffman and Justice Lampkin concurred in the judgment and
opinion.


                                          OPINION
     No. 1-13-0267


¶1          The defendant, La Marr, 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 Gray, 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


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

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        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; see

        Hadley v. Department of Corrections, 362 Ill. App. 3d 680, 683 (2005) (a court lacks


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       No. 1-13-0267


          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.


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       No. 1-13-0267


¶ 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:




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       No. 1-13-0267


                             (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

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

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       No. 1-13-0267


          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

          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 Policemen's Annuity & Benefit Fund, 271 Ill. App. 3d 1105, 1109


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       No. 1-13-0267


          (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




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       No. 1-13-0267


¶ 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

          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




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          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


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       No. 1-13-0267


          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.

¶ 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 plaintiff's 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


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          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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