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Docket No. 88656-Agenda 20-September 2000.

MIKE YANG, Appellee, v. THE CITY OF CHICAGO, Appellant.

Opinion filed February 16, 2001.

JUSTICE McMORROW delivered the opinion of the court:

This case is before us on a question of Illinois law certified bythe United States Court of Appeals for the Seventh Circuit. 145 Ill.2d R. 20. The certified question is:

"Does section 9-102 of the Illinois Tort Immunity Actprovide for attorneys' fees against municipalities withinits definition of compensatory damages?"

For the reasons that follow, we answer the certified questionin the negative.

BACKGROUND

We take the following facts from the Seventh Circuit'sopinion in Yang v. City of Chicago, 198 F.3d 630 (7th Cir. 1999).

"On January 8, 1991, at approximately 11:00 p.m.,Mike Yang ('Yang'), co-owner of a south-side shoe store,received a call from his alarm company notifying him thatthe store had been burglarized. Yang called his brother,Myung and an employee, Bob. The defendants, uniformedpolice officers employed by the Chicago PoliceDepartment, had already arrived at the store when Yanggot there. While Yang and his employee and brotherbusied themselves with repairing the shattered frontdisplay window, Officer Hardin prepared a police reportby the front door of the store, adjacent to the brokenwindow. Officer Brown entered the store to investigate.While inside the store looking for a board to repair thewindow, employee Bob noticed that Officer Brown wasperusing the store in the manner of a shoplifter. Bobalerted Yang to this. As Officers Brown and Hardin beganto leave, Yang noticed a bulge in Officer Brown's jacket.Believing that Officer Brown had stolen somemerchandise, Yang approached the officer and requestedthat the merchandise be returned. At first, Officer Browndenied that he had taken any merchandise. But after adiscussion that escalated into an argument, Officer Brownreached into his jacket and pulled out a pair of 'L.A.Raiders' shorts and threw them at Yang. Officers Brownand Hardin then proceeded to enter their police car anddrive away. When Yang followed, Officer Brown shovedYang. Throughout the confrontation, Officer Hardin stoodby the passenger door of the squad car. He did not speakor intervene in any manner despite Yang's repeatedrequests for Officer Hardin to call the police sergeant.

In an attempt to prevent Officer Brown from leaving,Yang held onto the driver's side door of the squad car tokeep it open so that Officer Brown could not drive off.However, Officer Brown drove anyway, with the driver'sside door ajar and Yang hanging onto the car. OfficerBrown drove fast and recklessly in a zigzagging pattern,braking and accelerating, in an attempt to throw Yang off.Officer Brown also repeatedly struck Yang in the ribswith his elbow. Yang asserts that he was unable to let goof the car without being run over. Throughout the drive,Officer Hardin sat in the passenger seat. Officer Hardindid not say anything or in any way attempt to intervene.The squad car traveled, with Yang hanging on[,] morethan two full city blocks until two men on the sidewalksaw what was happening and ran out to the street to stopthe police car. Yang let go when the car stopped. OfficerBrown then got out of the car and punched Yang in theface, knocking him to the ground. Meanwhile, Yang'sbrother, who had run after the squad car, arrived at thescene. Officer Brown knocked Myung Yang to theground.

Throughout these events, Officer Hardin did not call thesergeant or attempt to stop Officer Brown in any way.However, as the Yang brothers lay in the street, OfficerHardin got out of the passenger seat of the squad car,drew his gun, pointed it at the brothers and shoutedobscenities at them. The Yangs froze. Officers Hardin andBrown got back in the police car and drove away. Yang v.Hardin, 37 F.3d 282, 283-84 (7th Cir. 1994) (Bauer, J.)."Yang, 198 F.3d at 631-32.

Yang subsequently sued Brown and Hardin under 42 U.S.C.section 1983 for civil rights violations. Yang v. Hardin, 37 F.3d282, 283 (7th Cir. 1994). The federal district court found againstBrown and awarded Yang damages plus attorney fees, pursuant to42 U.S.C. section 1988. Yang, 37 F.3d at 283. The district courtfurther found that both officers "acted under the color of statelaw"; however, it determined that Hardin was not liable undersection 1983. Yang, 37 F.3d at 283. The Seventh Circuit reversedand held that Hardin was liable under section 1983 because he wasacting within the scope of his employment, and he violated Yang'scivil rights. Yang v. City of Chicago, 137 F.3d 522, 523 (7th Cir.1998). On remand, the district court entered a judgment againstHardin. Yang, 137 F.3d at 523. Yang then requested that the Cityof Chicago indemnify the judgment against either Brown orHardin, pursuant to section 9-102 of the Illinois LocalGovernmental and Governmental Employees Tort Immunity Act.745 ILCS 10/9-102 (West 1998). The Seventh Circuit determinedthat the City was derivatively liable for the judgment againstHardin. Yang, 198 F.3d at 632. The district court subsequentlyentered a judgment in favor of Yang and against the City for$234,671.56 plus $191,628.75 in attorney fees and $10,774.42 incosts. Yang, 198 F.3d at 632.

On appeal, the Seventh Circuit was required to determinewhether section 9-102 of the Illinois Tort Immunity Act providesfor recovery of attorney fees against a municipality. The SeventhCircuit found that no controlling Illinois law exists on this issueand, therefore, that "this case presents a question of state law bestleft to the Illinois Supreme Court to answer." Yang, 198 F.3d at632. The Seventh Circuit then certified the question to this courtpursuant to Supreme Court Rule 20 (145 Ill. 2d R. 20).

This court agreed to answer the certified question. We grantedleave to file an amicus curiae brief in support of Yang to theChicago Lawyers' Committee for Civil Rights Under Law, Inc.,together with the Mexican-American Legal Defense andEducational Fund.

ANALYSIS

I. Scope of Authority

Before proceeding to the question certified to us by theSeventh Circuit, we first address the City of Chicago's argumentthat we should revisit the federal courts' determination that Brownand Hardin were acting within the scope of their authority duringthe altercation with Yang. In support of this argument, the Cityrelies on Scadron v. City of Des Plaines, 153 Ill. 2d 164 (1992),Fireman's Fund Insurance Co. v. SEC Donohue, Inc., 176 Ill. 2d160 (1997), and Schrock v. Shoemaker, 159 Ill. 2d 533 (1994). TheCity contends that these cases establish that this court can decideissues beyond the certified question if necessary in order for us toreach a proper resolution of the case. This reliance is misplaced.

In Scadron, this court agreed to answer the question certifiedto us by the Seventh Circuit of whether the Illinois HighwayAdvertising Control Act of 1971 (Ill. Rev. Stat. 1987, ch. 121, par.501 et seq.) preempted the authority of home rule municipalitiesto regulate outdoor advertising signs in areas subject to the Act.Scadron, 153 Ill. 2d at 168. We found that, in order to answer thecertified question, we had to first determine whether a home ruleunit had the power to regulate those signs. Scadron, 153 Ill. 2d at174. Such a determination was a necessary prerequisite toanswering the certified question before us. In the case at bar,however, the City asks us to revisit an issue already decided by theSeventh Circuit, and not certified to this court, regarding whetherHardin and Brown were acting within the scope of their authorityduring the altercation with Yang. This is an entirely different issuefrom the question of whether attorney fees are included within thedefinition of compensatory damages in the Tort Immunity Act.The federal courts have decided that Hardin and Brown wereacting within the scope of their authority, and the United StatesSupreme Court denied the City's petition for certiorari on thatissue, putting an end to that litigation. This court is not a court ofreview for federal court decisions. Therefore, we are restricted tothe question certified to us.

Moreover, both Fireman's Fund and Schrock involvedquestions certified to our appellate court by an Illinois circuit courtfor interlocutory review, pursuant to Supreme Court Rule 308 (134Ill. 2d R. 308), and then appealed to this court. Where "this courtallows a petition for leave to appeal pursuant to Rule 315(a), thescope of our review is not limited to determining whether theappellate court answered the certified questions correctly. Pursuantto Supreme Court Rule 366(a)(5), this court may 'enter anyjudgment and make any order that ought to have been given ormade, and make any other and further orders and grant any relief*** that the case may require.' " Schrock, 159 Ill. 2d at 537,quoting 134 Ill. 2d R. 366(a)(5); see also Fireman's Fund, 176 Ill.2d 160 (modifying question certified to appellate court forinterlocutory review pursuant to Supreme Court Rule 308 and thenappealed to Illinois Supreme Court). The questions in bothSchrock and Fireman's Fund were not certified to this courtpursuant to Rule 20. We therefore find these cases inapposite.

II. Certified Question

Yang brought suit against Brown and Hardin under 42 U.S.C.section 1983 for violation of his civil rights. Under 42 U.S.C.section 1988, a court may allow the prevailing party in a section1983 action to recover attorney fees. Specifically, section 1988provides that "the court, in its discretion, may allow the prevailingparty *** a reasonable attorney's fee as part of the costs." 42U.S.C.