NOTICE FILED This Order was filed under 2021 IL App (4th) 200397-U July 14, 2021 Supreme Court Rule 23 and NO. 4-20-0397 Carla Bender is not precedent except in the 4th District Appellate limited circumstances IN THE APPELLATE COURT Court, IL allowed under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
ILLINOIS MANUFACTURERS’ ASSOCIATION and ) Appeal from the ILLINOIS RETAIL MERCHANTS ASSOCIATION, ) Circuit Court of Plaintiffs-Appellees, ) Sangamon County v. ) No. 20CH98 ILLINOIS WORKERS’ COMPENSATION ) COMMISSION and MICHAEL J. BRENNAN, in His ) Honorable Official Capacity as Chairman, ) John M. Madonia, Defendants-Appellants. ) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court. Presiding Justice Knecht and Justice DeArmond concurred in the judgment.
ORDER ¶1 Held: The appellate court reversed the circuit court’s judgment and vacated its order awarding plaintiffs attorney fees and costs, concluding that section 10-55(c) of the Illinois Administrative Procedure Act did not apply because the administrative agency’s repeal of the rule that was the subject of a temporary restraining order proceeding did not constitute an invalidation of the rule by a court.
¶2 Defendants, Illinois Workers’ Compensation Commission (Commission) and
Michael J. Brennan, Chairman of the Commission, appeal from the Sangamon County circuit
court’s order awarding plaintiffs, Illinois Manufacturers Association and Illinois Retail
Merchants Association, attorney fees and costs under section 10-55(c) of the Illinois
Administrative Procedure Act (IAPA) (5 ILCS 100/10-55(c) (West 2018)). We reverse the
circuit court’s judgment and vacate its order awarding plaintiffs attorney fees and costs.
¶3 I. BACKGROUND ¶4 In March 2020, in response to the COVID-19 pandemic, Governor J.B. Pritzker
entered an executive order declaring the state of Illinois “a disaster area.” Governor Pritzker later
entered an executive order (1) requiring nonessential business activities to temporarily cease and
(2) imposing stay-at-home and social distancing measures designed to prevent the spread of the
COVID-19 virus.
¶5 On April 16, 2020, the Commission grew concerned whether workers’
compensation benefits would be available to “first responders” and “frontline workers” who
were “most susceptible to exposure” to COVID-19 due to the nature of their employment. To
address those concerns, the Commission promulgated emergency amendments to its “Rules of
Evidence” for arbitration proceedings in its administrative regulations. See 50 Ill. Admin.
Code 9030.70, amended at 44 Ill. Reg. 7809 (emergency rule eff. Apr. 16, 2020) (repealed by 44
Ill. Reg. 8080 (eff. April 27, 2020)). This emergency rule defined “first responders” and
“frontline workers” and created a rebuttable presumption that any exposure of a first responder
or frontline worker to the virus during a COVID-19-related disaster proclamation as declared by
the Governor was connected to “the hazards or exposures of the [person’s] COVID-19 first
responder or frontline worker employment.” Id.
¶6 On April 22, 2020, plaintiffs filed a motion for a temporary restraining order
(TRO) and a verified complaint for a preliminary injunction. Plaintiffs asserted the Commission
exceeded its authority under its governing statutes and the IAPA when it promulgated the
emergency rule, and it was therefore void as a matter of law. On April 23, 2020, defendants filed
a response to the motion, arguing that plaintiffs failed to satisfy the requirements necessary to
obtain a TRO. That same day, the circuit court conducted a summary hearing on plaintiffs’
motion for a TRO.
-2- ¶7 On April 24, 2020, the circuit court entered a written order granting plaintiffs’
motion and enjoining the Commission from invoking or enforcing the emergency rule against
any person or entity. The circuit court further ordered defendants to respond to plaintiffs’
verified complaint.
¶8 On April 27, 2020, the Commission held an emergency meeting in which it
repealed the emergency rule at issue in the plaintiffs’ complaint. In a subsequent issue of the
Illinois Register, the Commission stated, “Due to pending litigation, the Commission is repealing
this emergency rule to avoid unnecessary litigation expenses.” 44 Ill. Reg. 8080 (eff. April 27,
2020). On April 30, 2020, defendants filed a motion to dismiss the complaint and dissolve the
TRO pursuant to section 2-619 of the Code of Civil Procedure (Civil Code) (735 ILCS
5/2-619(a)(9) (West 2018)), asserting that the Commission’s repeal of the emergency rule
rendered plaintiffs’ claims moot.
¶9 On May 5, 2020, the circuit court entered a written order granting defendants’
motion to dismiss, stating the following:
“[T]he effect of the repeal of the emergency rule[ ] that is the subject of this
lawsuit is such that the rule at issue is treated as null and void from its enactment
on April 16, 2020, such that the rule cannot and shall not be invoked or enforced
by or against any party or entity at any time.”
The court specifically agreed with defendants that the issue presented in this case was moot
where plaintiffs had “secured what [they] basically sought and a resolution of the issues could
not have any practical effect on the existing controversy.” The court dismissed the case with
prejudice but retained jurisdiction over plaintiffs’ claim for attorney fees pursuant to the IAPA.
-3- ¶ 10 On May 11, 2020, plaintiffs filed a petition for attorney fees and costs, arguing
they were entitled to the same under section 10-55(c) of the IAPA, which allows an award of
attorney fees and costs to a party that has an administrative rule invalidated “by a court.” 5 ILCS
100/10-55(c) (West 2018). Defendants filed a response, arguing plaintiffs were not entitled to
fees under section 10-55(c) of the IAPA because the emergency rule was not invalidated by a
court.
¶ 11 In July 2020, the circuit court entered a written order concluding plaintiffs were
entitled to attorney fees and costs under section 10-55(c) and ordering defendants to reimburse
plaintiffs $97,699 for litigation efforts from April 14, 2020, to May 5, 2020. In its memorandum
of opinion accompanying the order, the circuit court reasoned as follows:
“[I]t does not matter whether the amendments in question were ‘invalidated by the
court’ as Defendants suggest must be specifically found to grant Plaintiffs’ fees
request, or whether the amendments were ‘invalidated because of the
Court[,]’ a finding this court is expressly making, because the practical effect, and
more importantly, the purposes behind the application of [s]ection 10-55(c), are
the same regardless of the wording used. The fact remains that Plaintiffs needed
to utilize the courts to prevent Defendants from exceeding its statutory authority
exactly as contemplated by the provisions of [s]ection 10-55(c) of the IAPA.”
¶ 12 In August 2020, defendants filed a motion to stay enforcement of the attorney fees
award pending a timely appeal pursuant to Illinois Supreme Court Rule 305(a) (eff. July 1,
2017), which the circuit court allowed.
¶ 13 This appeal followed.
¶ 14 II. ANALYSIS
-4- ¶ 15 On appeal, defendants argue the circuit court erred as a matter of law when it
determined plaintiffs were entitled to attorney fees under section 10-55(c) of the IAPA.
Specifically, defendants argue that under the plain language of the statute, plaintiffs did not have
the emergency rule involved in this case “invalidated by a court.” 5 ILCS 100/10-55(c) (West
2018). In response, plaintiffs argue the circuit court’s order granting the TRO constituted
“invalidation” of the emergency rule, and therefore they were lawfully entitled to reasonable
attorney fees and costs under the statute. Id. We agree with defendants.
¶ 16 This case involves our interpretation of section 10-55(c) of the IAPA, which
states as follows:
“In any case in which a party has any administrative rule invalidated by a court
for any reason, including but not limited to the agency’s exceeding its statutory
authority or the agency’s failure to follow statutory procedures in the adoption of
the rule, the court shall award the party bringing the action the reasonable
expenses of the litigation, including reasonable attorney’s fees.” Id.
Generally, the circuit court has broad discretion in awarding attorney fees. Kirk v. Arnold, 2020
IL App (1st) 190782, ¶ 12, 157 N.E.3d 1111. However, the parties agree that whether the circuit
court properly applied the law when it determined plaintiffs were entitled to attorney fees under
section 10-55(c) is a matter of statutory construction that we review de novo. See id.
¶ 17 In Aussieker v. City of Bloomington, 355 Ill. App. 3d 498, 500, 822 N.E.2d 927,
929 (2005), this court wrote the following:
“When interpreting a statute, an appellate court must ascertain and give
effect to the legislature’s intent, and the best indication of such intent is the
language of the statute itself. [Citation.] When the statutory language is clear and
-5- unambiguous, a court must give effect to its plain and ordinary meaning without
resort to other tools of statutory construction. [Citation.] Further, undefined words
in a statute are given their plain and ordinary meaning. [Citation.]”
¶ 18 Additionally, the doctrine of “[s]overeign immunity does not bar a circuit court
action *** to invalidate an administrative rule and recover attorney fees under section 10-55(c)
of the [IAPA] [citation].” Applegate v. State of Illinois Department of Transportation, 335 Ill.
App. 3d 1056, 1061, 783 N.E.2d 96, 101 (2002). However, “since the common law prohibits a
prevailing party from recovering attorney fees, statutes which allow for such awards must be
strictly construed.” Carson Pirie Scott & Co. v. State of Illinois Department of Employment
Security, 131 Ill. 2d 23, 49, 544 N.E.2d 772, 784 (1989); see also Illinois Department of
Financial and Professional Regulation v. Rodriquez, 2012 IL 113706, ¶ 13, 983 N.E.2d 985
(“As section 10-55(c) [of the IAPA] provides for attorney fees, it is to be strictly construed.”).
¶ 19 B. This Case
¶ 20 We agree with defendants that the circuit court improperly concluded plaintiffs
were entitled to attorney fees under section 10-55(c) of the IAPA because, under the plain
meaning of the statute, plaintiffs did not have the emergency rule at issue in this case invalidated
by a court.
¶ 21 First, and contrary to plaintiffs’ assertion, the entry of the circuit court’s TRO did
not constitute an invalidation of the emergency rule for purposes of section 10-55(c) of the
IAPA. “A temporary restraining order is an emergency remedy issued to maintain the status quo
while the court is hearing evidence to determine whether a preliminary injunction should issue.”
Delgado v. Board of Election Commissioners of City of Chicago, 224 Ill. 2d 481, 483, 865
N.E.2d 183, 185 (2007). Accordingly, a TRO is designed to be “limited in duration and
-6- interlocutory in nature.” See id. The parties agree “invalid” means “without legal force or
effect.” See Gonzales-Blanco v. Clayton, 120 Ill. App. 3d 848, 850, 458 N.E.2d 1156, 1158
(1983) (defining “invalid” under predecessor statute to section 10-55(c) of the IAPA).
¶ 22 We conclude the effect of the TRO in this case was not to “invalidate” the
emergency rule. Instead, the effect was to maintain the status quo for a limited period of time
until the circuit court could hear evidence to determine whether a preliminary injunction should
issue. The fact that a TRO is inherently temporary supports our conclusion that the TRO alone
did not constitute an invalidation of the Commission’s emergency rule for purposes of section
10-55(c).
¶ 23 Moreover, any suggestion that the Commission’s repeal of the emergency rule
constituted invalidation “by the court” because it was motivated by the circuit court’s entry of
the TRO is contrary to the plain language of the statute. Without question, the Commission’s
repeal of the emergency rule at issue here constituted an invalidation of the rule. The circuit
court, in its order dismissing plaintiffs’ complaint, acknowledged that “the effect of the repeal of
the emergency rule[ ] that is the subject of this lawsuit is such that the rule at issue is treated as
null and void from its enactment.” However, the circuit court’s determination that the fact
(1) plaintiffs “needed to utilize the courts to prevent [d]efendants from exceeding [their]
statutory authority” and (2) defendants repealed the emergency rule to “avoid litigation
expenses” are enough to trigger section 10-55(c)’s mandatory attorney fees provision is
incorrect. The statute does not state that attorney fees shall be awarded if an administrative
agency invalidates its own rule in order to avoid litigation expenses in response to a party’s
successful efforts in seeking temporary equitable relief against the agency. The statute requires
that a court invalidate an administrative rule. That did not occur in this case.
-7- ¶ 24 In support of their argument, defendants rely on this court’s decision in Adams
Farm v. Doyle, 312 Ill. App. 3d 481, 727 N.E.2d 638 (2000). Defendants acknowledge, and we
agree, that the facts and procedural history presented in Adams are distinguishable from this case
in several respects. Nonetheless, we find this court’s reasoning in Adams instructive.
¶ 25 In Adams, the plaintiffs, who were grain producers, successfully argued before an
Illinois Department of Agriculture hearing officer that certain rules regarding notification
requirements in response to a grain dealer’s failure to pay should not apply to them because of
outdated and inconsistent language within the agency’s governing statute. See id. at 489. The
hearing officer decided not to apply the rules due to “possible confusion under the
circumstances.” Id. Upon the circuit court’s review, the circuit court determined plaintiffs were
entitled to attorney fees under the predecessor statute to section 10-55(c) of the IAPA (Ill. Rev.
Stat. 1989, ch. 127, ¶ 1014.1(b), recodified at 5 ILCS 100/10-55(c) (West 2018)) because they
succeeded in convincing the hearing officer the rules at issue should not apply to them. Adams,
312 Ill. App. 3d at 489. This court determined the circuit court’s decision to award attorney fees
was incorrect, concluding that “the action was taken by the hearing officer, not by the circuit
court.” Id. Plaintiffs argue in response that this court’s holding in Adams supports the award of
attorney fees based on this court’s later comment that section 10-55(c)’s purpose is “to
discourage the application of rules that [an agency] knows are likely to be invalidated if the
matter ever reaches the circuit court.” Id. at 490.
¶ 26 We agree with defendants’ assertion that Adams supports reversal of the attorney
fees award. This court clearly stated that the Adams plaintiffs were not entitled to attorney fees
where not only was there no rule that was invalidated—the hearing officer merely chose not to
apply the agency’s rule—but also it was not the circuit court who took that action. See id. at 489.
-8- Likewise, in this case, it was the actions of the Commission, not a court, that resulted in the
invalidation of the emergency rule. The legislature clearly contemplated that invalidation of an
administrative rule could occur by voluntary repeal or amendment by the administrative agency
and chose to specifically require that attorney fees only be awarded when a party has an
administrative rule invalidated by the court.
¶ 27 Plaintiffs make much of the statute’s language requiring the court to award fees if
it invalidates the rule “for any reason.” While we agree this language is intended to be broad and
encompass successful efforts at invalidating an administrative rule under a plethora of legal
theories, it does not negate the fact that the invalidation must be by the court.
¶ 28 Plaintiffs further rely on the circuit court’s reasoning that there is no practical
difference between invalidation “by the court” and “because of the court.” We emphatically
disagree. A significant difference exists between invalidation “by the court” and “because of the
court,” and—especially given our mandate to strictly construe statutes allowing for attorney
fees—we will not read plaintiffs’ suggested broader meaning into the language of the statute.
¶ 29 Although we have already determined the language of the statute is clear and
unambiguous, a brief survey of other attorney fees provisions under Illinois law further
illuminates the plain meaning of section 10-55(c) of the IAPA. In Larson v. Wexford Health
Sources, Inc., 2012 IL App (1st) 112065, ¶¶ 24-25, 974 N.E.2d 331, the First District aptly
compared several of those provisions as follows:
“Section 11(i) of FOIA provides that, ‘[i]f a person seeking the right to
inspect or receive a copy of a public record prevails in a proceeding under this
Section, the court shall award such person reasonable attorneys’ fees and costs.’
(Emphasis added.) 5 ILCS 140/11(i) (West 2008). Section 5([c]) of the Illinois
-9- Civil Rights Act provides that, ‘[u]pon motion, a court shall award reasonable
attorneys’ fees *** and other litigation expenses, to a plaintiff who is a prevailing
party in any action brought [under that section of the Illinois Civil Rights Act or
to enforce a constitutional right].’ (Emphasis added.) 740 ILCS 23/5(c) (West
2010).
The operative word in both the FOIA and the Illinois Civil Rights Act
provisions is ‘prevail.’ In plain language, ‘to prevail’ means someone/a party
wins, triumphs, gets what he wants. In a legal context, “prevail” means ‘[t]o
obtain the relief sought in an action; to win a lawsuit.’ Black’s Law Dictionary
1206 (7th ed. 1999). A ‘prevailing party’ is ‘[a] party in whose favor a judgment
is rendered’ or ‘successful party.’ (Emphasis omitted.) Black’s Law Dictionary
1206, 1145 (7th ed. 1999). A party can prevail in a court action with or without
[the] benefit of court-ordered enforcement of a law or statute. Indeed, the Illinois
Civil Rights Act’s definition of ‘prevailing party’ reflects this, including in its
definition not only any party who obtains some of his requested relief through a
judicial judgment in his favor or through a settlement agreement approved by the
court, but also any party ‘whose pursuit of a non-frivolous claim was a catalyst
for a unilateral change in position by the opposing party relative to the relief
sought.’ 740 ILCS 23/5(d)(3) (West 2010).”
¶ 30 Just as the Larson court determined when interpreting section 8-2001(g) of the
Civil Code (735 ILCS 5/8-2001(g) (West 2010))––that “[t]he legislature had the ‘substantially
prevailing’ and ‘prevailing party’ language available but chose not to use it”––we also conclude
that the lack of inclusion of this language in section 10-55(c) of the IAPA in this case is
- 10 - indicative of its plain meaning. See Larson, 2012 IL App (1st) 112065, ¶ 27. After all, “ ‘[If] the
legislature uses certain words in one instance and different words in another, it intends different
results.’ ” Illinois Bell Telephone Co. v. Illinois Commerce Commission, 362 Ill. App. 3d 652,
661, 840 N.E.2d 704, 712 (2005) (quoting Divane v. Smith, 332 Ill. App. 3d 548, 553, 774
N.E.2d 361, 365 (2002)). Although plaintiffs may have “prevailed” in the circuit court under the
definition set forth in the Illinois Civil Rights Act, that is not the standard or language under
which the circuit court was bound in this case under section 10-55(c) of the IAPA. We give
effect to the language the legislature chose.
¶ 31 Finally, we agree with defendants that the circuit court’s reliance on secondary
tools of statutory construction in determining plaintiffs were entitled to attorney fees was not
necessary, given the plain language of the statute. Plaintiffs contend the circuit court’s legislative
purpose analysis was appropriate because (1) the court was permitted to consider whether its
interpretation “made sense under the facts of [the particular] case,” (quoting County of DuPage
v. Illinois Labor Relations Board, 359 Ill App. 3d 577, 580-81, 834 N.E.2d 976, 979 (2005)),
(2) the court was required to consider the purpose of the statute and the problems it was intended
to remedy, and (3) the interpretation suggested by defendants would yield an “absurd and unjust
result.” Although we agree the court was permitted to consider whether its interpretation “made
sense” under the facts of the case, a court should not—as occurred here—delve into a legislative
purpose analysis where the language of the statute is unambiguous or prioritize its own sense of
the statute’s purpose above the plain language. Additionally, we find nothing absurd about a
result in which a litigant must pay his own attorney fees—the standard practice under the
American rule, as stated supra ¶ 18—when he is not otherwise entitled to them under the strict
construction of a relevant statute.
- 11 - ¶ 32 We conclude the circuit court’s award of attorney fees in this case was not
authorized by section 10-55(c) of the IAPA because plaintiffs did not have the Commission’s
emergency rule invalidated by a court. Accordingly, we agree with defendants and reverse the
circuit court’s judgment.
¶ 33 III. CONCLUSION
¶ 34 For the reasons stated, we reverse the Sangamon County circuit court’s judgment
and vacate its order awarding plaintiffs’ attorney fees and costs.
¶ 35 Reversed.
- 12 -