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August 5, 1994


Appeal from Circuit Court of Livingston County. No. 93CH3. Honorable Charles E. Glennon, Judge Presiding.

As Corrected August 31, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Honorable Robert W. Cook, J., Honorable Carl A. Lund, J., Specially Concurring, Honorable Robert J. Steigmann, J., Dissenting

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

Jane Doe, a correctional officer, filed a complaint seeking that Violetta Burgos, an inmate at Dwight Correctional Center, undergo a human immunodeficiency virus (HIV) antibodies test; that the Illinois Department of Corrections (IDOC) be forced to take whatever steps necessary to see that Burgos is tested; and that the test results be disclosed to Doe. The trial court granted Doe's requested relief. IDOC appeals. Burgos does not appeal. We affirm.

Doe filed her complaint against Burgos and IDOC on February 3, 1993. Doe sought the aforementioned relief based on section 7(c) of the AIDS Confidentiality Act (Act) (Ill. Rev. Stat. 1989, ch. 111 1/2, par. 7307(c)). Burgos, in her answer, stated she had been voluntarily tested on January 28, 1993, and attached the test results.

In March 1993, Doe filed a motion for summary judgment. IDOC filed a cross-motion for summary judgment asserting Doe had received all her requested relief so the issue was moot. IDOC also asserted that the cause was barred by sovereign immunity. The trial court in April 1993 denied both motions for summary judgment but, finding that time was of the essence, entered an order requiring thatwithin 30 days IDOC furnish Doe with detailed information of the testing of Burgos or, in the alternative, force Burgos to undergo a second test as per the Act. The trial court gave Doe 30 days to respond whether the testing procedures, whichever alternative was chosen, were acceptable.

IDOC chose not to retest Burgos, but did provide detailed information of the first test. Doe then filed affidavits alleging the first test was inadequate, a motion that a new test be performed, and a motion for attorney fees. After a hearing, the trial court entered its order on July 1, 1993, finding the first test inadequate. The court directed IDOC to draw blood from inmate Burgos in a medically and scientifically acceptable manner and transport it in a medically and scientifically acceptable manner to a lab chosen by Doe. The blood was to be drawn in Doe's presence, and the test results were to be disclosed to the parties "and to no others." The court reserved ruling on the motion for attorney fees, but found there was no just reason to delay appeal. IDOC then filed this appeal and a motion for stay pending appeal, which was granted by this court.

Doe has been a correctional officer at Dwight Correctional Center for 13 years. On February 19, 1989, she was attempting to control a disturbance when she was bitten twice by Burgos; the bites broke the skin and lasted about two minutes. Doe claims she made several requests that Burgos be tested; IDOC denies she made any requests until it was contacted by her lawyer in 1992. Although IDOC concluded it had no obligation to test Burgos, it succeeded in having Burgos voluntarily tested approximately five days prior to Doe's filing of her claim. Those test results were negative. Doe herself tested negative for HIV antibodies during the 3 1/2 years prior to the filing of her claim.

IDOC first contends the trial court erred on its cross-motion for summary judgment because the doctrine of sovereign immunity applies to bar Doe's cause of action in the circuit court. Doe maintains the doctrine does not apply because the relief sought is against Burgos and not against IDOC.

Sovereign immunity was abolished in Illinois "except as the General Assembly may provide by law." (Ill. Const. 1970, art. XIII, § 4.) The General Assembly, however, reasserted the State's sovereign immunity, expressly providing "the State of Illinois shall not be made a defendant or party in any court" except as provided in the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1991, ch. 48, par. 1601 et seq.) or the Court of Claims Act (Ill. Rev. Stat. 1991, ch. 37, par. 439.1 et seq.). (Ill. Rev. Stat. 1991, ch. 127, par. 801.) When sovereign immunity applies, the circuit court is without jurisdictionto entertain the claim. See Healy v. Vaupel (1990), 133 Ill. 2d 295, 307-17, 549 N.E.2d 1240, 1246-51, 140 Ill. Dec. 368.

The sovereign immunity of the State has been extended to actions in which a State department or agency is named as a party defendant. ( Smith v. Jones (1986), 113 Ill. 2d 126, 132, 497 N.E.2d 738, 740, 100 Ill. Dec. 560; Noorman v. Department of Public Works & Buildings (1937), 366 Ill. 216, 219, 8 N.E.2d 637, 638; Schwing v. Miles (1937), 367 Ill. 436, 441, 11 N.E.2d 944, 947.) The supreme court has stated "[a] department of State government is commonly known as a part, or division, of the government" and as such is granted sovereign immunity. ( Noorman, 366 Ill. at 220, 8 N.E.2d at 638.) Whether an action is in fact one against the State, and hence one that must be brought in the Court of Claims, depends not on the formal identification of the parties but rather on the issues involved and the relief sought. Healy, 133 Ill. 2d at 308, 549 N.E.2d at 1247 (claimed negligence against State employees).

IDOC is not directly or adversely affected here because the cause of action, in substance, is against Burgos rather than IDOC. IDOC is an incidental party, only included in the cause of action because Burgos is in its custody. Although IDOC contends it is directly and adversely affected because the trial court ordered it to test Burgos, and presumably pay the related costs, this case is no different from many others where IDOC is required to produce an inmate and must incidentally pay related expenses, for example, producing an inmate in a civil case under a writ of habeas corpus to testify. (735 ILCS 5/10-135 (West 1992); see In re Marriage of Allison (1984), 126 Ill. App. 3d 453, 461, 467 N.E.2d 310, 316, 81 Ill. Dec. 610.) We assume that IDOC would prefer to test Burgos itself, rather than produce her for testing at some independent facility outside prison walls. Under section 5-4-1 of the Unified Code of Corrections (730 ILCS 5/5-4-1 (West 1992)), a person convicted of a sexual offense (who will likely be in the custody of IDOC) shall be required to submit specimens of blood to the Illinois Department of State Police. Section 12-18(e) of the Criminal Code of 1961 allows the court to order an HIV test after a finding of probable cause on a sexual assault charge. (720 ILCS 5/12-18(e) (West 1992).) There is no indication that sovereign immunity allows IDOC to prevent testing in these cases. The trial court did not err by refusing to apply the doctrine of sovereign immunity and allowing this cause of action to stand with IDOC as a named party.

IDOC next contends the trial court erred in granting Doe her requested relief because the Act was not effective at the time of the bite and in any event the Act does not require IDOC to test Burgos. The trial ...

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