Appeal from the Circuit Court of Cook County No. 95 D 61043 Honorable Gay-Lloyd Lott, Judge Presiding.
The opinion of the court was delivered by: Justice McBride
JUSTICE McBRIDE delivered the opinion of the court:
This appeal arises from a circuit court order finding the Illinois Department of Public Aid (Department) and defendant jointly and severally liable for attorney fees and costs of the appointed guardian ad litem in the instant paternity action. For the following reasons we reverse.
On August 8, 1995, plaintiff Rose Williams filed a complaint to determine whether Willie Davenport was the father of her child, Rasheed Williams. Pursuant to the Illinois Statutes enacted in compliance with Title IV-D of the Social Security Act and the current contract between the Illinois Department of Public Aid and the Cook County State's Attorney's office, plaintiff was represented by the Cook County State's Attorney's office. 42 U.S.C. §651 et seq. (1994). Upon defendant's motion, David Pasulka (Pasulka) was appointed as the guardian ad litem for the minor Rasheed Williams.After results of a DNA test disclosed that defendant was not the minor's biological father, the trial court ordered the Department and defendant jointly and severally liable for the attorney fees and costs of the guardian ad litem.
On appeal the Department argues that: (1) the trial court did not have jurisdiction over the Department as it was only a nominal party to this action; and (2) since the Court of Claims retains exclusive jurisdiction in determining whether the State is liable for the expenses of litigation, the court's decision requiring the Department to pay attorney fees should be considered void ab initio for lack of subject matter jurisdiction. Because the second issue is dispositive of this appeal's outcome, we need not reach the merits of whether the State was in fact a nominal party to this action.
The Department argues that the Court of Claims Act (705 ILCS 505/8(a) (West 1996)), precluded the trial court from entering an order holding the State jointly and severally liable for the attorney fees and costs of the guardian ad litem. Pasulka responds by arguing the instant order falls outside the purview of the Court of Claims Act, because his function as guardian ad litem remains a State appropriated cost.
"Though our constitution of 1970 abolished sovereign immunity (Ill. Const. 1970, art. XIII, sec. 4) it was restored by the General Assembly, as the Constitution permitted." [Citations.] That enactment of the General Assembly provides that "[e]xcept as provided in [an act] to create the Court of Claims * * * the State of Illinois shall not be made a defendant or party in any court." Smith v. Jones, 113 Ill. 2d 126, 130-31, 497 N.E.2d 738 (1986); see also City of Springfield v. Allphin, 74 Ill. 2d 117, 123, 384 N.E.2d 310 (1978); Department of Revenue v. Appellate Court, 67 Ill. 2d 392, 394, 367 N.E.2d 1302 (1977); 705 ILCS 505/8(a) (West 1996), formerly Ill. Rev. Stat. 1981, ch. 127, par. 801.
The Court of Claims Act (705 ILCS 505/8(a) (West 1996)), provides:
"The court shall have exclusive jurisdiction to hear and determine the following matters: all claims against the State founded upon any law of the State of Illinois or upon any regulation adopted thereunder by an executive or administrative officer or agency; provided, however, the court shall not have jurisdiction (i) to hear or determine claims arising under the Workers' Compensation Act or the Workers' Occupational Diseases Act, or claims for expenses in civil litigation ***." 705 ILCS 505/8(a) (West 1996); see also Griffin v. Fluellen, 283 Ill. App. 3d 1078, 1083, 670 N.E.2d 845 (1996) (holding that absent the express consent of the State, unless suit is brought under the Court of Claims Act, the doctrine of sovereign immunity applies and the State of Illinois shall not be made a defendant or party in any court.)
In Kadlec v. Illinois Department of Public Aid, 155 Ill. App. 3d 384, 508 N.E.2d 342 (1987), the trial court sua sponte ordered attorney fees be paid by the Department of Public Aid for failing to maintain an adequate record for review regarding an administrative hearing before it. On appeal, however, this court reversed the trial court holding that the legislative intent behind the Court of Claims Act contemplated that expenses such as attorney fees were within the exclusive jurisdiction of the Court of Claims Act. Kadlec, 155 Ill. App. 3d at 387.
Similar to Kadlec, the trial court in the instant case sought to impose joint and several liability upon the Department of Public Aid for the attorney fees and costs of the guardian ad litem. As in Kadlec, we also find that the awarding of such expenses rests within the exclusive jurisdiction of the Court of Claims Act and therefore find the trial court lacked subject matter jurisdiction to enter its order. See Kadlec, 155 Ill. App. 3d at 387; see also Management Ass'n of Illinois, Inc. v. Board of Regents of Northern Illinois University, 248 Ill. App. 3d 599, 607, 618 N.E.2d 694, 699 (1993) (holding that "an award of fees and costs against the State is [ ] under the exclusive jurisdiction of the Court of Claims.")
To be outside the scope of the Court of Claims Act's jurisdiction the State must provide a waiver of immunity that has been expressed by specific legislative authorization and must appear in affirmative statutory language. Griffin, 283 Ill. App. 3d at 1083; In re Walker, 131 Ill. 2d 300, 304, 546 N.E.2d 520 (1989). Given this strict rule of specificity "[s]tatutes which in general terms authorize the imposition of costs in various actions or proceedings, but which do not in express terms refer to the State, are not adequate to authorize the imposition of costs against the State." Department of Revenue v. Appellate Court, 67 Ill. 2d 392, 396, 367 N.E.2d 1302 (1977); In re Walker, 131 Ill. 2d at 304. "Nothing will be read into such statutes by intendment or implication." In re Walker, 131 Ill. 2d at 304. Because statutes which authorize costs against the State are a derogation of the common law they are strictly construed. In re Walker, 131 Ill. 2d at 304.
With this analysis in mind, we look to section 5/506 of the Illinois Marriage and Dissolution of Marriage Act, which presumably was the statutory authority the trial court relied upon for the imposition of the guardian ad litem's fees and costs against the State. 750 ILCS 5/506 (West 1996). Section 5/506 states in pertinent part: "The court may appoint an attorney to represent the best interests of a minor or dependent child with respect to his support, custody, visitation, and property. The court may also appoint an attorney as the guardian ad litem for the child. The court shall enter an order for costs, fees and disbursements in favor of the child's attorney and guardian ad litem, as the case may be. The order shall be made against either or both parents or any adult party, or against the child's separate estate." 750 ILCS 5/506 (West 1996).
In order for this court to uphold the trial court's order under section 5/506 of the Illinois Marriage and Dissolution of Marriage Act with respect to the imposition of the guardian ad litem's fees and costs, this court would have to find an explicit waiver of the State's immunity which would amount to a consent of such fees. See In re Walker, 131 Ill. 2d at 305; 705 ILCS 505/8(a) (West 1996). Pasulka points to the language of "any adult party" as indicia that the legislature intended the State to be a party potentially liable for the attorney fees of an appointed guardian ad litem. Contrary to Pasulka's position, such ...