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NO. 4-05-0090

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

                     JUSTICE APPLETON delivered the opinion of the court:

                     Plaintiff, Willie B. Hadley, Jr., is an inmate at BigMuddy Correctional Center. He filed a class-action complaint toenjoin defendant, the Illinois Department of Corrections (DOC),from charging him and other indigent inmates a $2 co-payment fornonemergency medical and dental services. DOC filed a motion todismiss the complaint pursuant to section 2-615 of the Code ofCivil Procedure (735 ILCS 5/2-615 (West 2004)). The trial courtgranted the motion and struck the case. Plaintiff appeals. Wereverse the trial court’s judgment and remand this case forfurther proceedings because we find that the complaint states acause for injunction.

I. BACKGROUND

                     In his complaint, plaintiff alleges that during 2002and 2003, DOC deducted a total of $44 in co-payments from hisinmate trust account even though he had "been deemed indigent byPinkneyville [Correctional Center], Big Muddy [CorrectionalCenter,] and every *** court [in which] he has filed any pleading*** during his incarceration." He filed a grievance over thepractice of charging the $2 co-payment to inmate trust accountswhen the individual’s account balance was zero. He contendedthat this practice violated section 3-6-2(f) of the Unified Codeof Corrections (Code), which provided: "A committed person whois indigent is exempt from the $2 co-payment and is entitled toreceive medical or dental services on the same basis as a committed person who is financially able to afford the co-payment." 730 ILCS 5/3-6-2(f) (West 2002).

                     On March 4, 2002, William E. Singleton, the DOC official in charge of the inmate trust fund, wrote plaintiff a letterstating:

"Your belief regarding your indigent statushas no bearing on medical co-pay procedures. [Administrative] [directive No.] 04.03.103[,][']Health Care Services for Inmates[,']states in [s]ection [II(E)(6)(b)]: 'Prior toscheduling the needed services, the inmatesshall be required to sign "Request for Payment," [form No.] DC 828, authorizing thededuction of the co-pay[ment] from present orfuture funds in his or her trust account.’

Please note the words 'present or future,’ as they are the key[] to my response. We are [required] to deduct this charge fromyou[r] account *** whether you have funds ornot. If you have no funds, we debit youraccount against future earnings and willdeduct from them when earned."

                     On July 31, 2002, Donald N. Snyder, Jr., the Directorof DOC, concurred in the denial of the grievance. Plaintiffalleges he has exhausted his administrative remedies.

                     Plaintiff further alleges, in his complaint, that"inmates who refuse to sign [a 'Request for Payment,’ form No. DC828,] because they have no funds in their trust fund account aredenied medical or dental services. The inmates who are indigentare being thrust further in debt through the disbursement offuture funds from their account."

II. ANALYSIS

A. Our Subject-Matter Jurisdiction

                     Initially, we must assure ourselves of our subject-matter jurisdiction even though neither party questions it. People ex rel. Hansen v. Phelan, 158 Ill. 2d 445, 449-50, 634N.E.2d 739, 741 (1994). The Illinois Constitution of 1970abolished sovereign immunity but gave the legislature the powerto restore it. Ill. Const. 1970, art. XIII, §4. In 1971, thelegislature did so by enacting the State Lawsuit Immunity Act(Pub. Act 77-1776, §1, eff. January 1, 1972 (1971 Ill. Laws 3446-47)), which provides, "the State of Illinois shall not be made adefendant or party in any court" except as provided in the Courtof Claims Act (705 ILCS 505/1 through 29 (West 2004)) or theIllinois Public Labor Relations Act (5 ILCS 315/1 through 27(West 2004)). 745 ILCS 5/1 (West 2004). Thus, sovereign immunity bars lawsuits by a private citizen against the State instate court unless the legislature has waived the immunity. People ex rel. Manning v. Nickerson, 184 Ill. 2d 245, 249, 702N.E.2d 1278, 1280 (1998) ("the legislature--only the legislature--can determine when and where claims against the state will beallowed"). Courts lack jurisdiction over lawsuits barred bysovereign immunity. Toth v. England, 348 Ill. App. 3d 378, 387,809 N.E.2d 702, 709 (2004); City of Carbondale v. Bower, 332 Ill.App. 3d 928, 935, 773 N.E.2d 182, 187 (2002).

                     "Sovereign immunity prohibits a court from entering amandatory injunction directing the State to take specific action." Bower, 332 Ill. App. 3d at 935, 773 N.E.2d at 187. Because the very purpose of sovereign immunity is to bar privatelitigants from "control[ling]" the State's actions (Brucato v.Edgar, 128 Ill. App. 3d 260, 264, 470 N.E.2d 615, 618 (1984)),the same rule would apply to negative injunctions (injunctionsprohibiting the State from taking a specific action). But therule has an exception:

"A suit to enjoin conduct that violates thelaw or exceeds the authority of a publicofficial is not barred by sovereign immunity,because it is not considered to be an actionagainst the State. However, a suit thatseeks to enjoin public officials from takingactions in a governmental matter over whichthey have discretionary authority is deemedto be an action against the State, and sovereign immunity consequently does then apply." (Emphasis in original.) American Federationof State, County & Municipal Employees, Council 31 v. Ryan, 347 Ill. App. 3d 732, 745,807 N.E.2d 1235, 1245 (2004).

                     In the present case, plaintiff bases his lawsuit onDOC’s purported violation of section 3-6-2(f) of the Code (730ILCS 5/3-6-2(f) (West 2004)). The statute reads: "A committedperson who is indigent is exempt from the $2 co-payment ***." 730 ILCS 5/3-6-2(f) (West 2004). The statute does not leave itup to DOC whether to charge an indigent inmate the co-payment;rather, the statute says the inmate "is exempt" (730 ILCS 5/3-6-2(f) (West 2002)). We conclude that sovereign immunity does notbar this lawsuit. We have subject-matter jurisdiction.

B. Cause for an Injunction

1. A Clear Right That Needs Protection

                     In his complaint, which he brings on behalf of himselfand "all other similarly situated *** inmates [in the custody ofDOC,]" plaintiff requests a permanent injunction "ordering [DOC]to cease and desist from arbitrarily applying a policy of ***forcing indigent inmates *** to sign a [']Request for Payment[,’][form No. DC 828], authorizing the deduction of the $2 co-paymentfrom present or future funds [in their] account."

                     An injunction, whether temporary or permanent, is anextraordinary remedy. Sadat v. American Motors Corp., 104 Ill.2d 105, 115, 470 N.E.2d 997, 1002 (1984); Brown v. Murphy, 278Ill. App. 3d 981, 994-95, 664 N.E.2d 186, 196 (1996). Therefore,when reviewing the dismissal of a complaint for an injunction onthe ground of legal insufficiency, we take the well-pleaded factsas true, but we do not resolve all inferences in the plaintiff'sfavor as we would do in other cases (e.g., Feltmeier v.Feltmeier, 207 Ill. 2d 263, 267, 798 N.E.2d 75, 79 (2003)). Thepleading requirements are more rigorous:

"It is *** a common rule[,] well establishedin equity, that essential facts relied uponfor relief by injunction must be stated withsufficient certainty to negative every reasonable inference arising upon the factsstated from which inference it might be saidthat the complainant is not entitled to therelief sought. Upon demurrer [(i.e., a motion to dismiss for failure to state a causeof action),] every allegation of the [complaint] is taken most strongly against thepleader." Gates v. Sweitzer, 347 Ill. 353,363, 179 N.E. 837, 841 (1932).

                     Thus the supreme court has held:

"'[A] well-pleaded complaint praying forinjunctive relief must contain on its face aclear right to relief and state facts whichestablish the right to such relief in a positive[,] certain[,] and precise manner.’ [Citation.] These factual allegations mustspecifically establish the inadequacy oflegal remedy and the irreparable injury theplaintiff will suffer without the injunction." Sadat, 104 Ill. 2d at 116, 470 N.E.2dat 1002, quoting Parkway Bank & Trust Co. v.City of Darien, 43 Ill. App. 3d 400, 406, 357N.E.2d 211, 217 (1976).

                     Reviewing the complaint de novo, without any deferenceto the trial court (Mattis v. State Universities RetirementSystem, 296 Ill. App. 3d 675, 682-83, 695 N.E.2d 566, 571(1998)), we ask whether plaintiff has pleaded facts establishingthat he has a certain and clearly ascertainable right needingprotection (see Local 1894 v. Holsapple, 201 Ill. App. 3d 1040,1045, 559 N.E.2d 577, 580 (1990); County of Kendall v.Rosenwinkel, 353 Ill. App. 3d 529, 538, 818 N.E.2d 425, 433(2004)).

                     Plaintiff derives his claimed right from section 3-6-2(f) of the Code, which reads in relevant part as follows:

"[DOC] shall require the committed personreceiving medical or dental services on anon[]emergency basis to pay a $2 co-paymentto [DOC] for each visit for medical or dentalservices. The amount of each co-paymentshall be deducted from the committed person'sindividual account. A committed person whohas a chronic illness, as defined by [DOC's]rules and regulations, shall be exempt fromthe $2 co-payment for treatment of thechronic illness. A committed person shallnot be subject to a $2 co-payment for follow-up visits ordered by a physician, who isemployed by, or contracts with, [DOC]. Acommitted person who is indigent is exemptfrom the $2 co-payment and is entitled toreceive medical or dental services on thesame basis as a committed person who is financially able to afford the co-payment." 730 ILCS 5/3-6-2(f) (West 2004).

                     In 2002 and 2003, when debiting plaintiff's inmatetrust account for the co-payments, DOC had a rule providing asfollows:

"(g) Committed persons who requirenon[]emergency medical or dental services atoffices or facilities other than [DOC] facilities shall authorize [DOC] to deduct a [$2]co-pay[ment] from present or future funds inhis or her trust fund account prior to eachvisit. Non[]emergency services are scheduledservices determined necessary by a [DOC]physician.

(1) The co-payment shall bepaid from the committed person'strust fund when the services aredelivered.

(2) Committed persons who arewithout funds at the time servicesare delivered shall not be deniedmedical or dental services. Thecommitted person's trust fund account shall be restricted for theamount of co-payment and shall bepaid upon receipt of future funds.

(3) A committed person who isfound to be indigent shall be exempt from the co-payment. A committed person shall be consideredindigent if[,] during the entireterm of his or her incarceration[,]the committed person is withoutfunds to pay the [$2] co-payment." 20 Ill. Adm. Code §415.30(g)(1)through (g)(3) (Conway Greene CD-ROM June 2002).

                     As the State acknowledges, administrative directive No.04.03.103, which Singleton cites in his letter to plaintiff, is arestatement or an implementation of the above-quoted DOC rule. Plaintiff argues the administrative directive is irreconcilablewith the plain language of section 3-6-2(f) of the Code, which"exempt[s]" indigent inmates from the co-payment (730 ILCS 5/3-6-2(f) (West 2004)). If the administrative directive reachesbeyond DOC’s statutory authority, so do the corresponding provisions of the rule it implements.

                     DOC has no general or common-law powers (see City ofChicago v. Fair Employment Practices Comm'n, 65 Ill. 2d 108, 113,357 N.E.2d 1154, 1155 (1976)); it is a creation of the Code andmust find its powers in the Code (see Bio-Medical Laboratories,Inc. v. Trainor, 68 Ill. 2d 540, 551, 370 N.E.2d 223, 228(1977)). Thus, DOC can charge indigent inmates a co-payment onlyif the Code expressly or by fair implication empowers DOC to doso. Aurora East Public School District No. 131 v. Cronin, 92Ill. App. 3d 1010, 1014, 415 N.E.2d 1372, 1375-76 (1981). Doesthe Code empower DOC to charge indigent inmates a co-payment? Ofcourse not. The Code unambiguously forbids DOC from doing so.

                     In some circumstances, the concept of indigence couldcreate ambiguity. Everyone knows what "indigence" means in ageneral sense. But more precisely, in terms of dollars or networth, how destitute must an inmate be to qualify as "indigent"within the meaning of section 3-6-2(f)? The legislature does notsay. Apparently, it intended DOC to decide--and we will defer toDOC’s interpretation insomuch as it is reasonable. See Church v.State, 164 Ill. 2d 153, 162, 646 N.E.2d 572, 577 (1995); IllinoisConsolidated Telephone Co. v. Illinois Commerce Comm'n, 95 Ill.2d 142, 152, 447 N.E.2d 295, 300 (1983). In section 415.30(g)(3)of Title 20 of the Illinois Administrative Code, DOC interprets"indigent." If the rule is a defensible interpretation, we willuphold it; if the rule conflicts with the statutory language, therule is invalid, and we will strike it down. See Illinois RSANo. 3, Inc. v. Department of Central Management Services, 348Ill. App. 3d 72, 76, 809 N.E.2d 137, 140 (2004); Aurora EastPublic School District, 92 Ill. App. 3d at 1014, 415 N.E.2d at1376.

                     The statute requires DOC to "deduct[]" "[t]he amount ofeach co-payment *** from the committed person's individualaccount." 730 ILCS 5/3-6-2(f) (West 2004). The statute furtherprovides, however, that "[a] committed person who is indigent isexempt from the $2 co-payment and is entitled to receive medicalor dental services on the same basis as a committed person who isfinancially able to afford the co-payment." 730 ILCS 5/3-6-2(f)(West 2004).

                     In DOC's regulatory scheme, even though an inmate lacksfunds and has a negative net worth, DOC can charge that inmate aco-payment by virtue of its special definition of "indigent": "Acommitted person shall be considered indigent if[,] during theentire term of his or her incarceration[,] the committed personis without funds to pay the [$2] co-payment." 20 Ill. Adm. Code§415.30(g)(3) (Conway Greene CD-ROM June 2002). Because presentimpoverishment does not equal "indigence," "[t]he committedperson’s trust fund account shall be restricted for the amount ofco-payment and shall be paid upon receipt of future funds." (Emphasis added.) 20 Ill. Adm. Code §415.30(g)(2) (Conway GreeneCD-ROM June 2002). Can we square this rule with the legislature’s intent?

                     The best evidence of legislative intent is the languageof the statute, understood in its plain and ordinary sense. Kingv. First Capital Financial Services Corp., 215 Ill. 2d 1, 26, 828N.E.2d 1155, 1169 (2005). Any considerations of public policyare superfluous when the statutory language is clear. Vicenciov. Lincoln-Way Builders, Inc., 204 Ill. 2d 295, 311, 789 N.E.2d290, 299 (2003); Chapman v. Richey, 78 Ill. 2d 243, 248-49, 399N.E.2d 1277, 1279 (1980). To "exempt" someone means to "releaseor deliver [that person] from some liability or requirement towhich others are subject." Merriam-Webster's Collegiate Dictionary 405 (10th ed. 2000). Just as a matter of pure logic, it isimpossible to both charge the co-payment to an inmate’s accountand exempt the inmate from the co-payment. One must choose onecourse of action or the other. The only reasonable interpretation of section 3-6-2(f) is that DOC shall deduct the co-paymentfrom the inmate’s account unless the inmate is indigent, in whichcase DOC shall exempt the inmate from the co-payment. Thestatute speaks of a present, not a future, state of affairs: "isindigent" and "is exempt"; it speaks of the inmate’s financialcondition at a particular point in time, when the inmate is to"receive medical or dental services." (Emphases added.) 730ILCS 5/3-6-2(f) (West 2004). The statute does not say: "Acommitted person who remains indigent throughout the term of hisor her imprisonment shall be exempt from the $2 co-payment." Thestatute does not say that inmates shall pay the co-payment (toquote the State’s brief) "if and when they later have the meansto do so." (Emphasis in original.)

                     DOC’s definition of "indigent" does violence to thatword’s common meaning and conflicts with the statute. The meretheoretical possibility of obtaining money at some indefinitetime in the future does not change the fact that a pennilessperson is indigent. Whatever "indigent" means in terms ofspecific dollar amounts, it must include an inmate who hasabsolutely zero assets, despite the possibility--a possibilitycommon to everyone, including indigent people--that the inmate’sfinancial situation might someday improve.

                     Section 3-6-2(f) of the Code gave plaintiff a clearright to an exemption from the $2 co-payment if, at the time hesought nonemergency medical or dental services, he lacked themeans to pay it. He alleges that even though he had no funds orassets, DOC, pursuant to an invalid policy, charged the co-payments to his inmate trust account and thereby put the balancein negative territory. We find that plaintiff has alleged thefirst of the three conditions for granting an injunction: acertain and clearly ascertainable right that needs protection. See Local 1894, 201 Ill. App. 3d at 1045, 559 N.E.2d at 580.

2. Irreparable Injury Without the Injunction

                     The second condition for the award of an injunction isthat the plaintiff will suffer irreparable injury without theinjunction. Local 1894, 201 Ill. App. 3d at 1045, 559 N.E.2d at580. As we and other districts of the appellate court have held,"[i]rreparable harm does not mean injury that is beyond repair orbeyond compensation in damages but[,] rather[,] denotes transgressions of a continuing nature." Tamalunis v. City ofGeorgetown, 185 Ill. App. 3d 173, 190, 542 N.E.2d 402, 413(1989); Lucas v. Peters, 318 Ill. App. 3d 1, 16, 741 N.E.2d 313,325 (2000); Wilson v. Illinois Benedictine College, 112 Ill. App.3d 932, 939, 445 N.E.2d 901, 908 (1983); General Electric Co. v.Local 997, 8 Ill. App. 2d 154, 165, 130 N.E.2d 758, 763-64(1955). The injury need not be very great. Mutual of Omaha LifeInsurance Co. v. Executive Plaza, Inc., 99 Ill. App. 3d 190, 195,425 N.E.2d 503, 508 (1981). Indeed, injunctive relief is wellsuited to small injuries that are "'of such constant and frequentrecurrence that no fair or reasonable redress can be had thereforin a court of law.'" General Electric Co., 8 Ill. App. 2d at165, 130 N.E.2d at 763, quoting 2 H. Wood, A Practical Treatiseon the Law of Nuisances, §778, at 1893 (3d ed. 1893).

                     The amount of plaintiff’s pecuniary injury ($44) is notgreat, but it is an injury that will probably be repeated. Administrative rules have the force of law (People v. Selby, 298Ill. App. 3d 605, 611, 698 N.E.2d 1102, 1107 (1998)), and therefore DOC will no doubt feel obliged to follow its rule until acourt orders otherwise. As a result, without an injunction,plaintiff and other indigent inmates will suffer the same smalltwo-dollar injury over and over again, their inmate trust accounts going deeper and deeper into the red. We find thatplaintiff has pleaded the second condition for an injunction.

3. Lack of an Adequate Remedy at Law

                     The third condition for the granting of an injunctionis that the plaintiff lacks an adequate remedy at law. Local1894, 201 Ill. App. 3d at 1045, 559 N.E.2d at 580. The Stateargues that plaintiff does have an adequate remedy at law becauseif DOC wrongfully debited his account, he could file a claim forreimbursement in the Court of Claims, which has exclusive jurisdiction over "[a]ll claims against the State founded upon any lawof the State of Illinois" (705 ILCS 505/8(a) (West 2004)). Weforesee, however, that the Court of Claims would tell plaintiffthe same thing it told the claimant in Tedder v. State, 40 Ill.Ct. Cl. 201, 202-03 (1988), when he requested a declaration that"procedures of [DOC] [were] in violation of certain statutes": "The Court of Claims simply does not have jurisdiction to consider such a claim. This [c]ourt cannot consider the *** validity of *** regulations ***." We find that plaintiff has pleadedthe lack of an adequate legal remedy, the third condition for thegranting of an injunction.

III. CONCLUSION

                     Therefore, we reverse the trial court’s judgment andremand this case for further proceedings.

                     Reversed and remanded.

MYERSCOUGH, J., concurs.

McCULLOUGH, J., dissents.

JUSTICE McCULLOUGH, dissenting:

               I respectfully disagree and would affirm the trialcourt.

               The letter referred to in the majority's decisionsimply requires the payment from future income, the $2 co-payment. Section 3-6-2(f) of the Code states that "[a] committedperson who is indigent is exempt from the $2 co-payment and isentitled to receive medical or dental services on the same basisas a committed person who is financially able to afford the co-payment." 730 ILCS 5/3-6-2(f) (West 2004). The statute insection 3-6-2(f) does not define the word "indigent." The

Administrative Code does define the term "indigent." The DOCrule defines the word "indigent," stating that "[a] committedperson shall be considered indigent if[,] during the entire termof his or her incarceration[,] the committed person is withoutfunds to pay the [$2] co-payment." 20 Ill. Adm. Code§415.30(g)(3), as adopted at 21 Ill. Reg. 5911, 5914 (eff. May 1,1997).

               The majority states that it is impossible to bothcharge the co-payment to an inmate's account and exempt theinmate from the co-payment. However, this is exactly what therules of DOC provide. If the indigent has no income during theentire time of his imprisonment, he is not harmed. There is noirreparable harm because he gets the medical services. I suggestthat it is not impossible to both charge and exempt a person inthe plaintiff's status. That is exactly what the regulationdoes. The majority states that without an injunction, theplaintiff and other indigent inmates will suffer the same $2injury over and over again. This is simply not true. The inmatewho has no funds and receives no funds during his term of imprisonment will receive the same services and not be required to paya dime for the same.