NO. 5-05-0696
N O T IC E
Decision filed 03/06/07. The text of
IN THE
this dec ision m ay b e changed or
corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
P e t i ti o n for Re hea ring or the
disposition of the same.
FIFTH DISTRICT
___________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff and Respondent, ) Perry County.
)
v. ) No. 00-CF-3
)
TROY E. DOWNS, )
)
Defendant and Petitioner-Appellee )
) Honorable
(The Department of Corrections, Intervening ) James W. Campanella,
Respondent-Appellant). ) Judge, presiding.
________________________________________________________________________
PRESIDING JUSTICE WELCH delivered the opinion of the court:
The Illinois Department of Corrections (the Department) appeals from the orders of
the circuit court of Perry County directing the Department to pay the attorney fees and other
litigation costs associated with the representation of indigent Troy Downs in proceedings
under the Sexually Dangerous Persons Act (the Act) (725 ILCS 205/0.01 et seq. (West
2004)). The Act allows for the confinement, in the Department, of a person deemed to be
suffering from a mental disorder, coupled with criminal propensities to the commission of
sex offenses, who has demonstrated propensities toward acts of sexual assault or molestation
of children. 725 ILCS 205/1.01, 8 (West 2004).
Downs, who had been confined under the Act and was indigent, applied to the circuit
court of Perry County for a discharge, and in accordance with section 5 of the Act (725 ILCS
205/5 (West 2004)), an attorney was appointed by that court to represent him. The same
attorney was also appointed to represent Downs in an appeal to this court from the denial of
an earlier petition for a discharge. Subsequently, the attorney filed petitions for interim
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attorney fees and costs, seeking reimbursement from the Department. The circuit court
entered orders directing the Department to pay those fees and costs. The Department filed
a motion for leave to intervene and a motion to reconsider the orders directing it to pay the
attorney fees and costs, as well as objections to a further petition for interim attorney fees and
costs. The Department's motion for leave to intervene was granted, but its motion to
reconsider was denied. All the attorney's petitions for interim fees and costs were granted,
and the Department now appeals. The Department filed one appeal from orders entered June
30, 2005, and September 9, 2005, and another from an order entered December 1, 2005. The
two appeals were consolidated by an order of this court.
The parties agree that no facts are in dispute and that this appeal involves only
questions of law. Accordingly, our review of the trial court's decision is de novo. McGee
v. Snyder, 342 Ill. App. 3d 274, 278 (2003). For reasons that follow, we affirm the orders
of the circuit court.
In ruling as it did, the circuit court relied on the appellate court's opinion in People v.
Wilcoxen, 358 Ill. App. 3d 1076 (2005). Like the case at bar, Wilcoxen involved an appeal
by the Department from a circuit court order that it pay attorney fees for appointed counsel
who had represented an inmate during discharge proceedings under the Act. On appeal, the
Department argued that the order was prohibited by the doctrine of sovereign immunity. The
appellate court disagreed, holding that the legislature's reinstatement of sovereign immunity
does not apply unless the State has been " 'made a defendant or party' " to the action at issue.
Wilcoxen, 358 Ill. App. 3d at 1078 (quoting 745 ILCS 5/1 (West 2002)). In a proceeding
under the Act, the State is not the defendant, nor does the person subject to proceedings
under the Act "make" the State a party defendant. Wilcoxen, 358 Ill. App. 3d at 1078. To
the contrary, the State chooses to become a party by initiating proceedings under the Act.
Wilcoxen, 358 Ill. App. 3d at 1078. A petition for attorney fees incurred in representing an
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inmate in proceedings under the Act does not transform the State into a defendant but is a
component of the original action brought by the State. Accordingly, the State is not a "party
defendant" and sovereign immunity does not bar a request for attorney fees. Wilcoxen, 358
Ill. App. 3d at 1078.
The appellate court went on to hold that the circuit court did not err in ordering the
Department to pay the attorney fees and costs where the inmate was entitled to an attorney
and there was no dispute about his inability to pay the attorney fees. Wilcoxen, 358 Ill. App.
3d at 1078. The court found such an order to be reasonable in light of section 8 of the Act
(725 ILCS 205/8 (West 2002)), which establishes the Director of Corrections as the legal
guardian of a person committed under the Act. The court held that a person's legal guardian
is the correct source for the payment of a person's essential expenses, including the essential
expense of an attorney to represent that person during discharge proceedings under the Act.
Wilcoxen, 358 Ill. App. 3d at 1078-79. The fact of guardianship is what distinguishes a case
involving the Act from other cases relied on by the Department, where no guardianship
responsibility for the inmate exists. Wilcoxen, 358 Ill. App. 3d at 1079. Finally, borrowing
language from People ex rel. Conn v. Randolph, 35 Ill. 2d 24, 29 (1966), the court held, "The
circuit court possessed 'inherent power' to enter an order ensuring that [the inmate]'s attorney
did not suffer an intolerable sacrifice and burden as a result of his appointment." Wilcoxen,
358 Ill. App. 3d at 1079.
In this appeal, the Department argues that Wilcoxen was wrongly decided in that it
erroneously ignored the well-established rule that courts may not assess litigation costs
against the State in civil actions absent affirmative statutory language expressly authorizing
such an award. Indeed, the Department is correct that a party may not recover from the State,
or one of its agencies, attorney fees or other litigation costs in a civil action unless there is
affirmative statutory language reflecting the State's consent to the imposition of costs against
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it. See Department of Revenue v. Appellate Court of Illinois, First District, 67 Ill. 2d 392,
396 (1977); Williams v. Davenport, 306 Ill. App. 3d 465, 469 (1999). However, we agree
with the decision in Wilcoxen that the Act does, in fact, authorize the imposition of costs
against the State for the representation of indigent inmates.
As the court in Wilcoxen pointed out, section 8 of the Act provides that, upon
determining that an individual is a sexually dangerous person under the Act, the court shall
appoint the Director of Corrections as the guardian of the person for that individual, and the
individual shall stand committed to the custody of that guardian. 725 ILCS 205/8 (West
2004). Thus, under the Act, the State, not the county, has guardianship responsibilities for
the inmate. Thus, the Department is the appropriate source, if the inmate is indigent, for the
payment of the inmate's expenses incurred in proceedings under the Act.
We also agree with Wilcoxen that it is this guardianship relationship, established by
the Act, which distinguishes this case from those cited by the Department in support of its
position. For example, in In re Detention of Campbell, 319 Ill. App. 3d 621 (2001), we held
that a trial court erred in ordering the Department to pay the court-appointed attorney fees
of an individual, incarcerated in the Department, who was adjudicated a sexually violent
person under the Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq. (West
1998)). Unlike the Act in the case at bar, the Sexually Violent Persons Commitment Act
does not establish a guardianship relationship between the Department and the committed
individual.
The Department also argues that the holding in Wilcoxen that sovereign immunity did
not bar the imposition of attorney fees and costs against the State is wrong. Again, we agree
with the decision in Wilcoxen. The doctrine of sovereign immunity bars only actions brought
against the State, not actions brought by the State. The State initiates proceedings under the
Act, just as it does in criminal prosecutions. 725 ILCS 205/3 (West 2004). The claim for
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attorney fees and costs is not a separate action brought against the State but, as Wilcoxen
held, a component of the action brought by the State under the Act. Wilcoxen, 358 Ill. App.
3d at 1078. A claim for court-appointed attorney fees is not akin to a counterclaim seeking
damages in tort, like that deemed barred by sovereign immunity in People ex rel. Manning
v. Nickerson, 184 Ill. 2d 245, 249 (1998). The Department's argument that sovereign
immunity bars a claim for attorney fees and costs against the Department was rejected by the
appellate court in Wilcoxen, and we choose to follow that precedent here.
Finally, we note that the legislature has not acted to amend the Act in light of the
Wilcoxen decision, despite the opportunity to do so. It is axiomatic that where a statute has
been judicially construed and the construction has not evoked an amendment, it will be
presumed that the legislature has acquiesced in the court's exposition of the legislative intent.
People v. Hairston, 46 Ill. 2d 348, 353 (1970). Indeed, section 9 of the Act, which deals with
applications for discharge such as the one in the case at bar, was amended after the decision
in Wilcoxen, to reflect the proper burden of proof as set forth by the supreme court in People
v. Trainor, 196 Ill. 2d 318, 335 (2001). 725 ILCS 205/9 (West Supp. 2005). It was not,
however, amended to reflect the holding in Wilcoxen. The legislature is presumed to know
the judicial construction that a statute has been given, and when the legislature reenacts a
statute without modification, it is assumed to have intended the same effect. People ex rel.
Klaeren v. Village of Lisle, 316 Ill. App. 3d 770, 782 (2000), aff'd, 202 Ill. 2d 164 (2002).
Accordingly, we find that section 8 of the Act (725 ILCS 205/8 (West 2004)) authorizes an
award against the Department for the attorney fees and costs incurred in the representation
of an indigent inmate in proceedings under the Act and that such an award is not prohibited
by the State's sovereign immunity.
For the foregoing reasons, the orders of the circuit court of Perry County are hereby
affirmed.
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Affirmed.
CHAPMAN and WEXSTTEN 1 , JJ., concur.
1
Justice Wexstten has read the briefs and listened to the audiotape of oral argument.
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NO. 5-05-0696
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff and Respondent, ) Perry County.
)
v. ) No. 00-CF-3
)
TROY E. DOWNS, )
)
Defendant and Petitioner-Appellee )
) Honorable
(The Department of Corrections, Intervening ) James W. Campanella,
Respondent-Appellant). ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: March 6, 2007
___________________________________________________________________________________
Justices: Honorable Thomas M. Welch, P.J.
Honorable Melissa A. Chapman, J., and
Honorable James M. Wexstten, J.,
Concur
___________________________________________________________________________________
Attorneys Lisa Madigan, Attorney General, State of Illinois, Gary Feinerman, Solicitor General,
for John P. Schmidt, Assistant Attorney General, 100 West Randolph Street, 12th Floor,
Appellant Chicago, IL 60601
___________________________________________________________________________________
Attorney Ellen Jenkins Curry, 302 Public Square, P.O. Box 1611, Benton, IL 62812
for
Appellee
___________________________________________________________________________________