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No. 2--02--0410

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BOWMAN delivered the opinion of the court:

Plaintiff, Village of Sleepy Hollow (Sleepy Hollow), appeals thedenial of its motion to dismiss the petition for damages ofdefendant, Pulte Home Corporation (Pulte). Sleepy Hollow contendsthat the trial court erred in concluding that the issue of SleepyHollow's asserted immunity from liability is controlled by section 2--208 of the Local Governmental and Governmental Employees TortImmunity Act (745 ILCS 10/2--208 (West 2000)) (Immunity Act), ratherthan section 2--201 of the Immunity Act (745 ILCS 10/2--201 (West2000)).

This cause of action began when Sleepy Hollow challenged theVillage of West Dundee's annexation of certain property that Pulteowned and intended to develop. Sleepy Hollow obtained a temporaryrestraining order and a preliminary injunction against Pulte,preventing Pulte from developing the property pending the outcome ofSleepy Hollow's action against West Dundee. Based on this court'sdecision in Stroick v. Village of West Dundee, 319 Ill. App. 3d 468(2001), the trial court dismissed Sleepy Hollow's action forinjunction and dissolved the preliminary injunction against Pulte. Pulte then filed an "Amended Verified Petition for Award of Damages"(petition) against Sleepy Hollow under section 11--110 of the Code ofCivil Procedure (Code) (735 ILCS 5/11--110 (West 2000)), allegingthat Sleepy Hollow acted maliciously and without probable cause ininstituting and maintaining its action for injunction.

Sleepy Hollow moved to dismiss Pulte's petition pursuant tosection 2--619 of the Code (735 ILCS 5/2--619 (West 2000)), arguingthat section 2--201 of the Immunity Act shielded it from liability. The trial court denied Sleepy Hollow's motion to dismiss, concludingthat section 2--208 of the Immunity Act, rather than section 2--201,was controlling. The court then certified the following questionpursuant to Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)):

"Under the circumstances of this case, and in light of Pulte'sallegations in its Amended Verified Petition for Award ofDamages that the Village [of Sleepy Hollow] acted maliciouslyand without probable cause in instituting and maintaining itsaction against Pulte, is the issue of tort immunity under theIllinois [sic] Governmental and Governmental Employees TortImmunity Act controlled by Section 2--208 (Institution ofJudicial Proceedings) or by Section 2--201 (Determination ofPolicy/Exercise of Discretion)?"

Sleepy Hollow timely filed an application for leave to appeal and wegranted the application.

The following statutes are relevant to our analysis of thecertified question:

"A local public entity is not liable for an injuryresulting from an act or omission of its employee where theemployee is not liable." 745 ILCS 10/2--109 (West 2000).

"Except as otherwise provided by Statute, a public employeeserving in a position involving the determination of policy orthe exercise of discretion is not liable for an injury resultingfrom his act or omission in determining policy when acting inthe exercise of such discretion even though abused." 745 ILCS10/2--201 (West 2000).

"A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrativeproceeding within the scope of his employment, unless he actsmaliciously and without probable cause." 745 ILCS 10/2--208(West 2000).

As with all questions of statutory construction, we begin bylooking at the language of the applicable statutes. Thelegislature's intent in enacting a statute is best determined by theplain and ordinary meaning of the statutory language. In re ChicagoFlood Litigation, 176 Ill. 2d 179, 193 (1997). When the language ofa statute is clear and unambiguous, the court must give it effectwithout resorting to other aids of construction. Chicago FloodLitigation, 176 Ill. 2d at 193. Courts should read statutes so asto yield logical and meaningful results and to avoid constructionsthat render specific language superfluous or meaningless. RochelleDisposal Service, Inc. v. Pollution Control Board, 266 Ill. App. 3d192, 198 (1994). Further, the court may not read into the statuteexceptions, conditions, or limitations that the legislature did notexpress. Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill.2d 484, 493 (2001). When construing immunities under the ImmunityAct, a court must view the statute as a whole, with all relevantparts considered together. A.R. v. Chicago Board of Education, 311Ill. App. 3d 29, 33 (1999).

The parties and the trial court have asked us to decide whichprovision "controls" under the facts of this case. Sleepy Hollowcontends that both sections 2--201 and 2--208 could apply, but theimmunity provided by section 2-201 is absolute and must be giveneffect regardless of whether section 2--208 also applies. In itsbrief, Pulte maintains that sections 2--201 and 2--208 conflict witheach other under the circumstances presented here, and that the morespecific provision, section 2--208, must apply. In oral argument,Pulte contended that there is no real conflict between sections 2--201 and 2--208, and a reading of both provisions clearly indicatesthat section 2--208 controls. The trial court concluded that theissue of immunity in this case is controlled by section 2--208 ratherthan section 2--201.

We agree with Sleepy Hollow that both statutes apply in thiscase. We disagree, however, that the immunity provided by section 2--201 always takes precedence over the provisions of section 2--208. The trial court reached the correct result in ruling that immunitywas not available to Sleepy Hollow. However, we do not believe thecorrect interpretation of the statutes at issue leads to theconclusion that section 2--208 "controls" over section 2--201.Instead, we conclude that sections 2--201 and 2--208 operate inconjunction with each other under the circumstances of this case. The language of section 2-208 sets forth an exception to the immunityafforded by sections 2--201 and 2--208. This exception applies whena public employee institutes or prosecutes a judicial oradministrative proceeding maliciously and without probable cause.

Contrary to Sleepy Hollow's contention, section 2--201 does notgrant public employees absolute immunity from liability for actsinvolving the exercise of discretion and the determination of policy. Section 2--201 begins with the phrase, "[e]xcept as otherwiseprovided by Statute" (745 ILCS 10/2--201 (West 2000)), which clearlyindicates that the legislature did not intend for public employees toreceive immunity from liability in all situations involving policyand discretion. We further note that the supreme court, indiscussing the scope of governmental immunity under the Immunity Act, stated that "[t]he legislature has recognized exceptions to itsgrants of immunity and enumerated these exceptions in the plainlanguage of the Act." CDG Enterprises, 196 Ill. 2d at 494-95. Thecourt then specifically cited section 2--208 as one of the statutesproviding such an exception. CDG Enterprises, 196 Ill. 2d at 494-95.

Sleepy Hollow's explanation of the statutory exception provisionis not persuasive. It argues that, by stating "[e]xcept as otherwiseprovided by Statute" (emphasis added) (745 ILCS 10/2--201 (West2000)) instead of "[e]xcept as otherwise provided in this Act"(emphasis added) (see 745 ILCS 10/3--108 (West 2000)), thelegislature must have been contemplating statutory duties imposed in acts other than the Immunity Act. We disagree. The legislature didnot limit in any way the statute or statutes to which it wasreferring in the phrase "[e]xcept as otherwise provided by Statute." As we have stated, we may not read into the statute limitations thatthe legislature did not express. See CDG Enterprises, 196 Ill. 2d at493. Moreover, section 1--209 of the Immunity Act (745 ILCS 10/1--209 (West 2000)) defines "statute" as "an act adopted by the GeneralAssembly of this State or by the Congress of the United States." Section 2--208 clearly falls within this broad definition. Weconclude, therefore, that Sleepy Hollow's interpretation of section2--201 lacks merit.

We likewise reject Sleepy Hollow's argument that the legislatureintended for section 2--208 to apply only to those situations inwhich a public employee institutes or prosecutes a judicial oradministrative proceeding without exercising discretion and making adetermination of policy. Sleepy Hollow cites a police officer'sdecision to issue a traffic ticket and a building inspector'sdecision to enforce a building regulation as examples of suchsituations. While section 2--208 may apply to such situations, wedisagree with Sleepy Hollow that it applies to such situations alone. Nothing in the language of section 2--208 indicates that thelegislature intended for it to apply only under circumstances thatfall outside the scope of section 2--201. If the legislature hadintended to so limit section 2--208, it would have done so. See CDGEnterprises, 196 Ill. 2d at 493. Moreover, we agree with Pulte thatit is difficult to conceive of a situation in which a public employeeinstitutes and prosecutes a judicial proceeding without exercisinghis or her discretion and making a determination of policy, given thecourts' broad definition of "policy determination." See, e.g.,Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335(1998) (a fire marshal's decision regarding where an individualshould stand during a fire drill constitutes a determination ofpolicy); Johnson v. Decatur Park District, 301 Ill. App. 3d 798(1998) (a tumbling coach's decision as to the maneuvers each gymnastwould perform and the equipment needed is a policy determination);Crowley v. City of Berwyn, 306 Ill. App. 3d 496 (1999) (afirefighter's decision about how a rescue should be made involves adetermination of policy). For these reasons, we do not agree withSleepy Hollow's interpretation of section 2--208.

We do not believe it is correct to say that section 2--208"controls" over section 2--201. Both provisions apply to the factsof this case. Sleepy Hollow claims that its decision to seek aninjunction against Pulte involved the exercise of discretion and thedetermination of policy, thereby invoking section 2--201. Section 2--208 also applies because this case involves Sleepy Hollow, throughits employees, instituting and prosecuting a judicial proceedingagainst Pulte. Therefore, both sections 2--201 and 2--208 could bebases for providing immunity to Sleepy Hollow from liability forinjuries resulting from the institution and prosecution of its actionagainst Pulte. This immunity, however, is subject to the exceptionset forth in section 2--208 for actions brought maliciously andwithout probable cause. Thus, sections 2--201 and 2--208 togetherimmunize public employees from liability for discretionary, policy-related acts in the institution or prosecution of a judicial oradministrative proceeding, unless they act maliciously and withoutprobable cause.

Our interpretation of the statutes finds support in Village ofLake in the Hills v. Laidlaw Waste Systems, Inc., 160 Ill. App. 3d427 (1987). In deciding whether the Immunity Act renders villagesimmune from damages for wrongful preliminary injunctions absentallegations of malicious conduct and lack of probable cause, weaddressed sections 2--201 and 2--208 without discussing therelationship between the two statutes. Unlike Pulte, the defendantin Laidlaw did not allege any malicious conduct or lack of probablecause on the municipality's part. Laidlaw, 160 Ill. App. 3d at 430. We held that "the Immunity Act shields the villages from liabilityfor a wrongfully issued injunction where the injunction was notsought maliciously or without probable cause." Laidlaw, 160 Ill.App. 3d at 433-34. We noted, however, that "it also appears thatunder section 2--208 of the Immunity Act, a governmental entity wouldbe liable for injuries caused by the institution of litigation if theproceedings were instituted 'maliciously and without probablecause.' " Laidlaw, 160 Ill. App. 3d at 432, quoting Ill. Rev. Stat.1985, ch. 85, par. 2--206. After examining section 2--201 inrelation to section 2--208, we continue to believe this is thecorrect analysis.

Here, the trial court determined that Pulte's allegations thatSleepy Hollow acted maliciously and without probable cause broughtthe matter within the purview of section 2--208. Accepting Pulte'sallegations as true, as is required when deciding a section 2--619motion to dismiss (see CDG Enterprises, 196 Ill. 2d at 486), immunitywas not available to Sleepy Hollow under section 2--201 or section 2--208 for the foregoing reasons.

Certified question answered.

HUTCHINSON, P.J., and O'MALLEY, J., concur.