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Docket No. 96325-Agenda 11-January 2004.

HAROLD A. FRITZ, Appellant, v. JOHN W. JOHNSTON et al., Appellees.

Opinion filed March 18, 2004.
 

JUSTICE FREEMAN delivered the opinion of the court:

The primary issue in this case may be stated concisely: Does thedoctrine of sovereign immunity deprive circuit courts of jurisdiction overclaims that state employees engaged in civil conspiracy in the furtheranceof which unlawful acts were committed? We answer this question in thenegative; sovereign immunity does not apply. However, plaintiff failed tostate a cause of action for civil conspiracy with respect to two defendants.Accordingly, we affirm the circuit court's judgment in part and reverse inpart.

BACKGROUND

The case comes before us on appeal from the dismissal of plaintiff'sthird amended complaint (complaint). The following factual backgroundis derived solely from the allegations contained in that document.

Plaintiff Harold Fritz is a decorated veteran of the United StatesArmy, who retired with a rank of Lieutenant-Colonel. Prior to 1999, hewas serving the State of Illinois as the deputy director of the IllinoisDepartment of Veterans Affairs (Department). He was one of threefinalists for the position of Director of Veterans Affairs when a newdirector was appointed in January 1999, but that post went instead todefendant John Johnston, and defendant continued in his position asdeputy director. Defendant Betty Bergstrom was at all pertinent timesemployed as Johnston's administrative assistant. Defendants ElizabethGaffney and Diane Ford were also employed by the state, as an assistantlegislative officer and as the Governor's personal legal counsel,respectively.

In July 1999, defendant Johnston contacted the Illinois State Policeto request that the police commence an investigation of plaintiff. Johnstonasserted that plaintiff had threatened his "physical integrity" as well asthreatening "potential damage to his personal home." Johnston informedthe police that plaintiff had also threatened Bergstrom with physicalviolence. Plaintiff alleged that these charges were false and that Johnstonand Bergstrom knew them to be false at the time they were made. Nocharges or action were ever brought against plaintiff as a result of thepolice investigation, which concluded in December 1999.

At some point after Johnston contacted the State Police, but beforethe "official commencement" of the State Police investigation, Illinois StateRepresentative Ron Stephens asked plaintiff to resign his post.Representative Stephens allegedly informed plaintiff that the Governorwished to appoint a different person to plaintiff's post as deputy director,and wished to secure his voluntary retirement. Representative Stephensalso allegedly informed plaintiff that the State Police investigation Johnstonhad set into motion would commence unless he resigned. Plaintiff allegedthat Representative Stephens had delivered this message to plaintiff at thebehest of defendants Gaffney and Ford. Plaintiff did not resign.

The first four counts of plaintiff's complaint were separate allegationsof civil conspiracy against each of the above four defendants. Plaintiffcontended that defendants had conspired to force him out of his job, andalleged that he endured mental anguish and "derogation of his name andreputation" as a result of their actions. In counts V and VI, plaintiff allegedthat through their actions defendants Gaffney and Johnston had committed"intentional interference with employment and economic gains derivabletherefrom."

Defendants moved to dismiss pursuant to sections 2-615 and 2-619of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West1998)). Defendants argued that the circuit court was without jurisdictionto hear plaintiff's claims because, under the doctrine of sovereignimmunity, plaintiff's action was in reality one against the State of Illinois.Defendants also argued that they were protected by public officialimmunity. Finally, defendants contended that plaintiff failed to state a claimfor which relief could be granted, both on the conspiracy counts and onthe counts alleging intentional interference with an employmentrelationship.

The circuit court of Sangamon County granted defendants' motionto dismiss on each of the grounds raised. The court ruled that plaintiff'sclaims were barred by both the doctrine of sovereign immunity and thedoctrine of public official immunity. The court also found that plaintiff hadboth failed to allege all elements of conspiracy-because he had failed toallege an "underlying tort or crime"-and failed to allege all elements ofintentional interference with an employment relationship-because he failedto allege any damages. Finally, the court noted that plaintiff had requestedpunitive damages without first seeking leave of court, and dismissed thecomplaint in its entirety.

A divided appellate court affirmed the dismissal. No. 4-02-0033(unpublished under Supreme Court Rule 23). The appellate majority foundit necessary only to reach the issue of sovereign immunity, and affirmed thecircuit court on this ground. The court explained that even though plaintiffdid not bring suit against the state in name, plaintiff's suit was in fact aclaim against the state because it had the potential to "control the State'sactions" by "limit[ing a state] employee's ability to engage in lawful activityon behalf of the state." The majority noted that at the time Johnston filedhis complaint with the State Police, there existed an administrative orderwhich provided that "[a]ll incidents involving State employees which ***involve a violation of the Illinois Criminal Code *** shall be reported tothe [Illinois State Police] without exception." See Administrative OrderNo. 1, 19 Ill. Reg. 1019, 1020 (1995). Accordingly, the majorityreasoned, Johnston's report to the State Police constituted lawful activityon behalf of the state. The majority also concluded that since it was legalfor the Governor to request a political appointee to resign, Gaffney andFord's actions were also legal activity on behalf of the state.

Presiding Justice Myerscough agreed with the majority that the circuitcourt properly dismissed counts V and VI, alleging intentional interferencewith an employment relationship. However, she parted company with themajority with respect to the conspiracy claims. Presiding JusticeMyerscough noted that filing a false report with the State Police is amisdemeanor crime, and reasoned that because plaintiff alleged thatJohnston knew the reports were false at the time he filed them, thosereports could not be considered "lawful activity on behalf of the state,"regardless of the administrative order to which the majority referred. Thedissent went on to conclude that defendants were not shielded by publicofficial immunity, and that plaintiff had adequately stated a cause of action.

Plaintiff petitioned this court for leave to appeal (177 Ill. 2d R.315(a)), which we granted.

ANALYSIS

Before this court the issues have been pared down. Plaintiff does notchallenge the circuit court's dismissal of counts V and VI, which allegedintentional interference with employment relationship. Defendants, for theirpart, have affirmatively abandoned their public official immunity argument.Accordingly, the sole questions are whether sovereign immunity applies onthe facts of this case-which determines whether the circuit court hadjurisdiction of the suit-and, if the circuit court did have jurisdiction,whether plaintiff stated a claim for conspiracy. Because the issues arosein the context of a motion to dismiss plaintiff's complaint, we are requiredto " 'interpret all pleadings and supporting documents in the light mostfavorable to the nonmoving party.' " Van Meter v. Darien Park District,207 Ill. 2d 359, 367-68 (2003), quoting In re Chicago Flood Litigation,176 Ill. 2d 179, 189 (1997). We must also accept as true "all inferencesthat can reasonably be drawn in plaintiff's favor." Chicago TeachersUnion, Local 1 v. Board of Education of the City of Chicago, 189 Ill.2d 200, 206 (2000). Our standard of review is de novo. Van Meter, 207Ill. 2d at 368.

I. Sovereign Immunity

In the Illinois Constitution of 1970, this state abolished the defenseof sovereign immunity "[e]xcept as the General Assembly may provide bylaw." Ill. Const. 1970, art. XIII,