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,

; see

Hadley v. Department of Corrections,

(2005) (a court lacks

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jurisdiction over lawsuits barred by sovereign immunity). The court also applies the de novo

standard of review to the construction of a statute. Wolinsky,

.

¶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,

, ¶ 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,

. "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,

.

The State's consent to be sued must be " 'clear and unequivocal.' " In re Special Education

of Walker,

(1989) (quoting Martin v. Giordano,

(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,

. Statutes authorizing costs are in

derogation of the common law and therefore must be strictly construed. Williams v.

Davenport,

(1999). "Nothing will be read into such statutes by

intendment or implication." Walker,

.

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¶ 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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(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,

. 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,

. 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,

; City of Springfield v. Allphin,

(1980) (general

interest statutes do not impose liability for prejudgment or postjudgment interest against the

State); see also Department of Revenue v. Appellate Court,

(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,

. 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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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,

. 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,

;

see Department of Revenue,

(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,

.

¶ 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.,

.

"[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,

, 1109

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(1995). "The statutory provision must be read as a whole and all relevant parts should be

considered." Lohr v. Havens,

(2007). A court should not read

language into a statute that does not exist. Lohr,

.

¶ 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,

, "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,

, ¶ 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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¶ 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,

(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,

-09

(quoting Hudgens v. Dean,

(1979)). There is a recognized presumption

that the State or a department thereof cannot violate the constitution or the laws of the State.

Herget,

. 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,

(quoting Schwing v. Miles,

(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.,

(2005) (quoting Moline Tool Co. v. Department of Revenue,

(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,

(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

10 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,

(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,

.

¶ 28 State Building Venture v. O'Donnell,

(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,

. 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,

. 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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