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The 1970 Illinois Constitution specifically abolished sovereign immunity in this state while reserving issues of governmental immunity to the legislative prerogative. Article XIII, section 4, of the Illinois Constitution states: "Except as the General Assembly may provide by law, sovereign immunity in this State is abolished." The real question is how this provision affects the Local Governmental and Governmental Employees Immunity Act of 1965 ("Immunity Act").
Up until the state Supreme Court’s recent decision in Village of Bloomingdale v. CDG Enterprises, Inc.,1 the question remained open as to whether common law exceptions to the Immunity Act still applied. In CDG Enterprises, the Illinois Supreme Court has decided that they do not. Before exploring the court’s decision, this article details some of the development of common law exceptions to the Governmental and Governmental Employees Tort Immunity Act of 1965. Second, the article discusses the implications of Article XIII, section 4, of the 1970 Illinois Constitution, as applied to the Immunity Act. Third, the facts, opinion and decision of Village of Bloomingdale v. CDG Enterprises, Inc. is given. Finally, the article concludes that while there is sound reasoning for allowing the common law exceptions to the Tort Immunity Act, the Illinois Supreme Court has characterized the provisions of the 1970 Illinois Constitution to act in a manner that wipes out those exceptions. In 1959, the state Supreme Court abolished common law sovereign immunity in the case of Molitor v. Kaneland Community Unit District 302.2 In response to Molitor, the legislature enacted the Tort Immunity Act in 1965. The intent of the Act was to reestablish immunity for certain governmental functions to prevent highly discretionary governmental actions from frequent and unnecessary challenges in court. While the legislature has conferred certain immunities and defenses in the Act upon local governments, the case law to date has created exceptions. Where the government (or its agents’) actions were maliciously motivated or corrupt, they could not avail themselves of the Immunity Act.3
Since the Immunity Act of 1965, common law exceptions have developed as the progeny of the decision of the Second District in Young v. Hansen.4 In Young, a taxicab driver brought a suit against police officers, city officials, and a competing taxicab company for conspiring to have his operator’s registration card revoked. The government employees sought dismissal by claiming immunity under the Immunity Act. The court reviewed the Act and commentary to it for guidance as well as the case law regarding sovereign immunity in the state. It concluded that the "court decisions of this State had previously limited discretionary immunity to good faith errors and not to instances of determinations based upon malice."5 The court further stated that the "immunity afforded . . . – while not expressly referring to the question of malice – extends only to those types of acts not resulting from corrupt or malicious motives."6 These same exceptions have been carried over through decisions such as Idlehour, Madonna, and River Park,7 filed after the date of enactment of the Illinois Constitution of 1970.
Article XIII, section 4, of the Illinois Constitution of 1970 states: "Except as the General Assembly may provide by law, sovereign immunity in this State is abolished."
In a discussion by the Constitutional Convention in regards to the impact of Article XIII, section 4, on the Immunity Act, a delegate in favor of the present section stated that it "leaves intact . . . ‘The Local Governmental and Employees’ Immunity Act,’ and in effect this act, through the legislature, codifies the common law which – case by case – has delineated the areas where the local government bodies and the employees are subject to liability if they do wrong, while at the same time reserving immunities in areas which involve discretion . . . these areas should continue to be preserved and that slow process of evolution by court case causes the law in that area to be developed."8 Further, the Supreme Court has stated that "[i]t is a fundamental principle that ‘where the legislature chooses not to amend a statute after a judicial construction, it will be presumed that it has acquiesced in the court’s statement of the legislative intent.’"9 This acquiescence, along with standards of statutory construction, suggest that where a statute does not directly address the common law, the construction should not be read to affect the common law any more than stated.10 Thus, it would seem that the cases after Young were absolutely correct in extending the common law exceptions to the Immunity Act to actions deemed ‘corrupt or maliciously motivated.’
Village of Bloomingdale v. CDG Enterprises, Inc.
CDG Enterprises ("CDG") had dealings with the Village of Bloomingdale ("Village") in hopes of convincing the Village to annex five parcels and rezone them so CDG could build a subdivision. The Village originally brought suit for breach of contract against CDG for services it provided in reviewing CDG’s petition for rezoning and site plan approval. CDG responded with counterclaims for tortious interference with business expectancy under the common law exceptions to the Immunity Act, for corrupt and malicious motives, and for a quasi-contract claim under a section of the Act preserving contractual liability. The circuit court dismissed the counterclaims under the relevant sections of the Immunity Act and the Village voluntarily dismissed its complaint before CDG appealed. The appellate court reversed and remanded, and the Village appealed to the Supreme Court for an answer to the following questions: (1) whether the common law exceptions for "corrupt or malicious motives" still apply to the related sections of the Immunity Act in light of Article XIII, section 4, of the 1970 Constitution and (2) if a section of the Immunity Act preserving liability based upon a contract would apply to a quasi-contract claim.
The Supreme Court interpreted Article XIII, section 4, as defining that "the tort liability of a local public entity or employee is expressly controlled both by the constitutional provision and by legislative prerogative as embodied in the Tort Immunity Act."11 The court discussed its previous decisions in Burdinie v. Village of Glendale Heights,12 Barnett v. Zion Park District,13 In re Chicago Flood Litigation,14 and Harinek v. 161 North Clark Street Ltd. Partnership.15 Those decisions had regarded common law exceptions to the Immunity Act and observed that when the "legislature intended to limit an immunity . . . it had unambiguously done so."16 Further, they had "reasoned that since the legislature omitted such limitation from the plain language [of the relevant sections], then the legislature must have intended to immunize liability [absolutely]."17 The CDG Enterprises court also commented that to "recognize an exception . . . where none exists at all in the Act, . . . would be venturing into the province of the legislature and violating the separation of powers."18 In deciding the issue of common law exceptions relevant to the sections in question, the court applied the above conclusions to the present case and found that there was no implication of legislative acceptance of the common law exceptions. As such, the plain meaning of the language in the relevant sections granted absolute immunity. Examining Young and its progeny, the Illinois Supreme Court stated that Young "was decided before article XIII, section 4, of the 1970 Constitution; therefore, its rationale of drawing from the common law doctrine of sovereign immunity to interpret the Tort Immunity Act is improper. Moreover, it appears that the constitutional issue was never presented to the appellate court in River Park. Young and its progeny, including River Park, are hereby overruled."19
As to the second question presented by the Village, the court disposed of it rather easily by finding that "a quasi-contract is ‘no contract at all’ but instead is a remedy based upon the principle of unjust enrichment, it follows that quasi-contract is not a ‘contract’ for purpose of [the relevant section of the Immunity Act]."20 Accordingly, the court reversed the appellate court and affirmed the judgment of the circuit court. The Illinois Supreme Court was absolutely correct in finding that the governmental immunity is a function of legislative prerogative as established by the first half of Article XIII, section 4. It is pretty clear that the legislature fully intended to retain authority as to "immunities in areas which involve discretion."21 But it is also true that "[t]he legislature is presumed to be aware of judicial decisions concerning prior and existing laws."22 Finally, the record of proceedings for the 1970 constitutional convention even suggests that the adoption of Article XIII, section 4, and its application to the Immunity Act was to codify the case-by-case common law that accompanied the Act.23 It seems contradictory to the purpose of Article XIII, section 4, as a whole, which abolishes sovereign immunity, to read the provision as removing common law exceptions that were already established at the time of adoption in 1970. This is especially true where the legislature was fully aware of the common law in the specific context of the Immunity Act.
The decision of the Illinois Supreme Court in CDG Enterprises goes too far. The court has created a paradox in holding that the provisions of the 1970 Illinois Constitution, which was enacted five years after the Tort Immunity Act, can be read as changing that Act and the case law interpreting it. The decision also defies standard rules of statutory construction when it holds that the constitutional provision should be read in this manner, as the legislature was aware of the common law surrounding the Immunity Act and accepted it while reserving its prerogative to intervene in matters of governmental immunity. Perhaps the Court, even in the face of ample evidence to the contrary, still believes that the intent of the legislature in adopting Article XIII, section 4, directly speaks to the Immunity Act and is specifically meant to wipe out the common law exceptions to governmental immunity.
1 No. 89963, 2001 WL 695092 (Ill. June 21, 2001).
2 18 Ill.2d 11, 163 N.E.2d 89 (1959).
3 River Park, Inc. v. City of Highland Park, 281 Ill.App.3d 154, 667 N.E.2d 499 (2nd Dist. 1996); Madonna v. Giacobbe, 190 Ill.App.3d 859, 546 N.E.2d 1145 (2nd Dist. 1989); Idlehour Development Co. v. City of St. Charles, 88 Ill.App.3d 47, 409 N.E.2d 544 (2nd Dist. 1980); Young v. Hansen, 118 Ill.App.2d 1, 249 N.E.2d 300 (2nd Dist. 1969).
4 118 Ill.App.2d 1, 249 N.E.2d 300 (2nd Dist. 1969).
5 Young, 118 Ill.App.2d at 8.
7 See supra Note 3.
8 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1840 (1972).
9 Zimmerman for Zimmerman v. Village of Skokie, 183 Ill.2d 30, 49, 697 N.E.2d 699 (1998) quoting Miller v. Locket, 98 Ill.2d 478, 483, 457 N.E.2d 14 (1983).
10 2B Sutherland on Statutory Construction §50.01 (6th ed. 2000).
11 Bloomingdale, 2001 WL 695092 at *3.
12 139 Ill.2d 501, 565 N.E.2d 654 (1990).
13 171 Ill.2d 378, 665 N.E.2d 808 (1996).
14 176 Ill.2d 179, 680 N.E.2d 265 (1997).
15 181 Ill.2d 335, 692 N.E.2d 1177 (1998).
16 Bloomingdale, 2001 WL 695092 at *4.
18 Id. at *5.
19 Id. at *9.
21 3 Record of Proceedings, Sixth Constitutional Convention at 1840.
22 Grant v. Board of Education of the City of Chicago, 282 Ill.App.3d 1011, 1021, 668 N.E.2d 1188 (1st Dist. 1996); see also Zimmerman, 183 Ill.2d at 49; 2B Sutherland on Statutory Construction §50.01 (6th ed. 2000).
23 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1840 (1972).
Matthew W. Grob is a third year law student and Lead Articles Editor of the NIU Law Review. He is veteran of the Persian Gulf War; he was honorably discharged from the Marine Corps in December of 1995.