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People Ex Rel. Reliford v. Roberts

OPINION FILED JANUARY 31, 1983.

THE PEOPLE EX REL. PAMELA RELIFORD, PLAINTIFF-APPELLEE,

v.

HARRY ROBERTS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Ronald J. Crane, Judge, presiding.

JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Harry Roberts (defendant) was named in a paternity suit brought by the People of the State of Illinois ex rel. Pamela Reliford (complainant). After the case was dismissed with prejudice, without a trial, defendant moved for attorney fees and expenses to be assessed against the State of Illinois. (Ill. Rev. Stat. 1981, ch. 110, par. 2-611.) The trial court denied defendant's motion. Defendant appeals.

Complainant gave birth to a child on December 21, 1978. She was a recipient of public aid. During a visit to the public aid office, complainant declared defendant to be the father. In addition, complainant testified and answered interrogatories to the effect that she had sexual intercourse with defendant exclusively throughout the period of possible conception.

Defendant vehemently denied ever having sexual intercourse with complainant. On August 7, 1981, defendant moved for and obtained a "level one" blood test. The results were inconclusive but showed a 70.93% chance that defendant was the father of the child. On September 14, 1981, the State moved for a level two blood test. Defendant opposed this motion. The parties then agreed upon a more sophisticated "level three blood test." This test produced a 100% conclusive result of non-paternity. On November 2, 1981, the suit was dismissed with prejudice. (Ill. Rev. Stat. 1981, ch. 40, par. 1404(a).) An assistant State's Attorney approved this order.

The People first raise the contention that the Illinois Court of Claims is the proper and only forum for a claim against the State. The pertinent statute creating the Illinois Court of Claims gives that court "exclusive jurisdiction to hear and determine * * * [a]ll claims against the state founded upon any law of the State of Illinois * * *." Ill. Rev. Stat. 1981, ch. 37, par. 439.8(a).

Section 4 of article XIII of the Illinois Constitution of 1970 abolished the ancient doctrine of sovereign immunity in the State of Illinois. This enactment states: "[e]xcept as the General Assembly may provide by law, sovereign immunity in this State is abolished." (Ill. Const. 1970, art. XIII, sec. 4.) A complete history of the law with reference to the doctrine of sovereign immunity and its present status in the State of Illinois is set forth in S.J. Grovers & Sons Co. v. Department of Transportation (1982), 93 Ill.2d 397.

However, under the Constitution of 1970 the General Assembly retained the power to abolish sovereign immunity to such extent and in such manner as it sees fit. As the court pointed out in S.J. Grovers, "it is the legislature's task to codify public policy; * * *." (93 Ill.2d 397, 405.) In the case before us the legislature has seen fit to codify its policy by providing in the very statute before us (Ill. Rev. Stat. 1981, ch. 110, par. 2-611):

"The State of Illinois or any agency thereof shall be subject to the provisions of this Section in the same manner as any other party."

• 1 This language is clear. It "should be given its plain and ordinary meaning." (City of East Peoria v. Group Five Development Co. (1981), 87 Ill.2d 42, 46, 429 N.E.2d 492.) Furthermore, the language quoted above from the Code of Civil Procedure is specific and therefore should supersede the general language expressed in section 8 of the Court of Claims Act (Ill. Rev. Stat. 1981, ch. 37, par. 439.8). Sierra Club v. Kenney (1981), 88 Ill.2d 110, 126, 429 N.E.2d 1214.

Accordingly, we reject the State's contention, and we will proceed to decide this case as regards the State of Illinois in the same manner as we would the liability of any other party.

Defendant bases his claim for fees and expenses on section 2-611 of the Code of Civil Procedure, which provides (Ill. Rev. Stat. 1981, ch. 110, par. 2-611, formerly Ill. Rev. Stat. 1979, ch. 110, par. 41):

"Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney's fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal."

• 2 The statute "is penal in nature and therefore should be invoked only in cases which fall strictly within its terms." (Demos v. Ericson (1982), 104 Ill. App.3d 403, 404, 432 N.E.2d 1035.) "The awarding of expenses and attorney fees rests entirely within the discretion of the trial court." (Liaskis v. Feiling (1981), 102 Ill. App.3d 626, 628, 430 N.E.2d 196.) Therefore, the decision of the trial court to allow or deny a petition under section 2-611 will be reversed by this court only upon a showing that the trial court "abused its discretion." (Pole Realty Co. v. Sorrells (1981), 84 Ill.2d 178, 185, 417 N.E.2d 1297.) "The burden of proof is on the party seeking relief to show the allegations are untrue and made without reasonable cause." Demos v. Ericson (1982), 104 Ill. App.3d 403, 405.

As stated by this court in the recent opinion of Model Industries, Inc. v. Walsh Press & Die Co. (1982), 111 Ill. App.3d 572, section 2-611 of the Code of Civil Procedure was amended effective September 19, 1976, by deletion of the essential that the untrue material must have been made "not in good faith." (Compare Ill. Rev. Stat. 1981, ch. 110, par. 2-611, and Ill. Rev. Stat. 1979, ch. 110, par. 41.) Consequently, as regards the issues before us, the requirements ...


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