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January 26, 1994


Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 90-L-16773. Honorable Herman H. Haase Judge, Presiding

Petition for Leave to Appeal Allowed June 2, 1994.

Present - Honorable Allan L. Stouder, Justice, Honorable Peg Breslin, Justice, Honorable Tom M. Lytton, Justice

The opinion of the court was delivered by: Stouder

JUSTICE STOUDER delivered the opinion of the court:

This case comes before the court as a permissive interlocutory appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308), and concerns whether section 1 of the Fire Fighter Liability Act (740 ILCS 75/1 (West 1992)) constitutes an invalid classification between different governmental agencies that perform the same function.

The plaintiff, Robert Jahn, filed a three-count amended complaint against the defendants, Troy Fire Protection District and Robert Meyers, seeking recovery for injuries he suffered on August 25, 1988. The complaint alleged that on that date, the plaintiff was employed by the Illinois Department of Transportation and was working on a road repair project in Will County, Illinois. Robert Meyers, a fireman in the employ of the Troy Fire Protection District, travelled through the construction site in a fire truck. The fire truck struck a construction marker cone which, in turn, struck the plaintiff. Count I alleged that the defendant Robert Meyers's actions were negligent, but prayed for no relief. Count II alleged that the same actions amounted to wilful and wanton misconduct and asked for a joint and several judgment against the defendants in an amount to exceed $15,000. Count III also sounded in negligence and alleged that, pursuant to section 1 of the Fire Fighter Liability Act, the defendant Troy Fire Protection District was liable for the plaintiff's injuries.

The defendants filed a motion to dismiss counts I and III of the plaintiff's amended complaint. The motion to dismiss count I was based on section 5-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/5-106 (West 1992)). That section provides immunity for public entities and public employees for injuries arising out of the negligent operation of motor vehicles or firefighting or rescue equipment when responding to emergency calls. The motion to dismiss Count III alleged that section 1 of the Firefighter Liability Act constitutes an invalid classification between different governmental agencies that perform the same function. Section 1 imposes liability upon fire protection districts and incorporated fire protection organizations for injuries resulting from the negligent operation of motorized fire fighting equipment by compensated or volunteer fire fighters. A similar provision imposing liability upon municipal fire departments (Ill. Rev. Stat. 1985, ch. 24, par. 1-4-4) was repealed on November 25, 1986. The defendants' motion alleged that an invalid classification has existed since the repeal of the provision relating to municipal fire departments. The court granted the motion to dismiss count I, but denied the motion to dismiss count III. Pursuant to a motion by defendants, the court certified the question for immediate appellate review of whether section 1 constitutes an invalid classification between different governmental agencies that perform the same function. This court granted the defendants' petition for leave to appeal pursuant to Rule 308.

Before reaching the issue raised in the certified question, we must resolve the issue of the defendants' standing to bring this appeal. The plaintiff argues that the defendants lack standing to challenge the alleged classification. The plaintiff interprets the defendants' argument as raising due process and equal protection challenges to the statute in question, and argues that due process and equal protection guarantees do not extend to units of local government. The defendants did not bother to file a reply brief to respond to the issue of standing. However, it appears that in the court below, in a reply to the plaintiff's objection to the certification of question, the defendants argued that because the plaintiff also named an individual fireman, Robert Meyers, standing was established. However, the fact that an individual fireman was also made a defendant is not dispositive of the issue. This is so because Robert Meyers lacks standing to challenge the alleged classification. In order for a party to attack a statute as unconstitutional, that party must be within the class aggrieved by its alleged unconstitutionality. ( People v. Blackorby (1992), 146 Ill. 2d 307, 586 N.E.2d 1231.) Under either section 5-106 of the Tort Immunity Act or section 1 of the Fire Fighter Liability Act, individual firemen can be held liable only for wilful and wanton misconduct. The discrepancy between the two statutes relates only to the different standards of liability for municipal fire departments and fire protection districts. Therefore, if standing does exist, it exists only in favor of defendant Troy Fire Protection District.

The question of whether a local government entity has standing to attack the constitutionality of a legislative classification is a difficult one. The authority from both the supreme and appellate courts is conflicting. In Meador v. City of Salem (1972), 51 Ill. 2d 572, 284 N.E.2d 266, the defendant city argued that section 1-4-6 of the Illinois Municipal Code (Ill. Rev. Stat. 1965, ch. 24, par. 1-4-6) created an arbitrary and unreasonable classification of persons injured and of the public entities against whom a claim may be asserted. The court declined to address the issue because the court found that under the doctrine of legislative supremacy over municipal corporations, a municipal corporation could not assert the protection of the due process clause against action of the State government. The court cited the United States Supreme Court's decision in Williams v. Mayor and City Council of Baltimore (1933), 289 U.S. 36, 77 L.Ed. 1015, 53 S.Ct. 431, for the proposition that, "A municipal corporation, created by a state for the better ordering of government, has no privileges or immunities under the Federal Constitution which it may invoke in opposition to the will of its creator." ( Meador, 51 Ill. 2d at 578, 284 N.E.2d at 270, quoting Williams, 289 U.S. at 40, 77 L.Ed. at 1020, 53 S.Ct. at 432.) Several decisions of the appellate court have followed this reasoning and have reached the same outcome on this issue. See Evanston v. Regional Transportation Authority (1990), 202 Ill. App. 3d 265, 559 N.E.2d 899; Franciscan Hospital v. Town of Canoe Creek (1979), 79 Ill. App. 3d 490, 398 N.E.2d 413; People v. Valentine (1977), 50 Ill. App. 3d 447, 365 N.E.2d 1082.

However, other decisions of the supreme and appellate courts have allowed challenges to state statutes under the Illinois Constitution by municipalities or units of local government when the unit of local government was arguing that a statute created an unconstitutional classification and when the unit of local government was a member of the class being discriminated against. In Cronin v. Lindberg (1976), 66 Ill. 2d 47, 360 N.E.2d 360, the Chicago Board of Education brought a constitutional challenge against a statutory reduction of school aid. In response to a challenge to the plaintiff's standing, the supreme court stated the following:

"Boards of education and school districts are governmental agencies created by the legislature and subject to its will. [Citations.] Due process guarantees, in the ordinary sense, do not extend to them. [Citations.] A school board may, however, assert a denial of equal protection of the laws if it is a member of a class being discriminated against [citations], and the allegation that the effect of the reduction in State aid here was to discriminate "against relatively poorer school districts such as Chicago" merits consideration." ( Cronin, 66 Ill. 2d at 55-56, 360 N.E.2d at 363-64.)

Other decisions have implicitly allowed similar classification challenges by units of local government. (See, e.g., County of Bureau v. Thompson (1990), 139 Ill. 2d 323, 564 N.E.2d 1170 (court, without discussing issue of standing, entertains a constitutional challenge to section 4 of the Illinois and Mississippi Canal State Park Act (Ill. Rev. Stat. 1987, ch. 105, par. 482d) by several counties and townships); Village of Oak Lawn v. Rosewell (1986), 113 Ill. 2d 104, 497 N.E.2d 734 (Plaintiff village brings constitutional challenge to section 224 of the Revenue Act of 1939 (Ill. Rev. Stat., 1984 Supp., ch. 120, par. 705). Court notes that parties did not argue issues of standing or of application of equal protection principles to units of local government, then addresses the merits of the claim because it finds a rational basis to exist.); East Lake Fork Special Drainage District v. Village of Ivesdale (1985), 137 Ill. App. 3d 473, 484 N.E.2d 507 (without discussing issue of standing, court allows drainage districts to challenge constitutionality of statutory exemptions to annual maintenance assessments); Board of Commissioners v. County of Du Page (1982), 107 Ill. App. 3d 409, 437 N.E.2d 923 (Municipal public library district brought action claiming county had retained interest earned on collected tax money in violation of statutory and constitutional law; court finds plaintiffs have standing based on Cronin. Supreme court affirms and remands without discussing standing, Board of Commissioners v. County of Du Page (1983), 96 Ill. 2d 378, 450 N.E.2d 332); Proviso Township High School District 209 v. Hynes (1980), 84 Ill. 2d 229, 232, 417 N.E.2d 1290, 1291 (township school district brings constitutional challenge to portion of revenue act, "While there may be a question as to the plaintiff's standing to maintain this action, the defendants have not raised it, and we elect to consider the case on its merits."); City of Urbana v. Houser (1977), 67 Ill. 2d 268, 367 N.E.2d 692 (court, without discussing standing, allows a challenge by city of Urbana to portion of statute that gave only nonhome rule units the power to demolish unsafe buildings); City of Carbondale v. Van Natta (1975), 61 Ill. 2d 483, 338 N.E.2d 19 (without discussing standing, court allows classification challenge by city of Carbondale to part of Illinois Municipal Code).) It appears, then, that a unit of local government does have standing to assert that a legislative classification is invalid under the Illinois Constitution, as long as the unit of local government is a member of the class being discriminated against. Here, the defendant Troy Fire Protection District argues that section 1 discriminates against fire protection districts by making them liable for the ordinary negligence of firefighters operating motorized firefighting equipment. The case law is certainly conflicting, but we conclude that, based on the authority cited above, the defendant Troy Fire Protection District has standing to bring this appeal.

We next consider the merits of the defendants' argument that section 1 constitutes an invalid classification. Legislation is presumed to be valid, and the party challenging the constitutionality of a statute bears the burden of establishing its invalidity. ( DeLuna v. St. Elizabeth's Hospital (1992), 147 Ill. 2d 57, 588 N.E.2d 1139.) To be valid, a statutory classification must be based on a real and substantial difference having a rational relation to the subject of the particular legislation. ( Schiller Park Colonial Inn, Inc. v. Berz (1976), 63 Ill. 2d 499, 349 N.E.2d 61.) Valid classifications for municipal tort liability may be created but they must relate to the types of municipal functions involved any may not rest upon the differences between the governmental agencies that perform the same function. ( Stubblefield v. City of Chicago (1971), 48 Ill. 2d 267, 269 N.E.2d 504; Harvey v. Clyde Park District (1964), 32 Ill. 2d 60, 203 N.E.2d 573.) Because the legislation being challenged neither implicates a fundamental right nor implicates a suspect or quasi-suspect class, the appropriate level of scrutiny is whether the statutory classification is rationally related to a legitimate state interest. ( Bernier v. Burris (1986), 113 Ill. 2d 219, 497 N.E.2d 763.) ...

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