Moore v. Green ( 2006 )

Docket No. 100029.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
MELISSA MOORE, as Independent Adm=r of the Estate of
Ronyale White, Deceased, Appellee, v. CHRISTOPHER
GREEN et al.,
Appellants.
Opinion filed April 20, 2006.
JUSTICE FITZGERALD delivered the judgment of the
court, with opinion.
Chief Justice Thomas and Justices Freeman, Kilbride,
Garman, and Karmeier concurred in the judgment and opinion.
Justice McMorrow specially concurred, with opinion.
OPINION
The sole issue in this case is whether the absolute
immunity provided by section 4B102 or 4B107 of the Local
Governmental and Governmental Employees Tort Immunity
Act (745 ILCS 10/4B102, 4B107 (West 2002)) or the limited
immunity provided by section 305 of the Illinois Domestic
Violence Act of 1986 (750 ILCS 60/305 (West 2002)) applies to
claims that a municipality and two of its police officers were
willful and wanton in failing to assist a victim of domestic
violence. Like the appellate court (355 Ill. App. 3d 81), we
conclude that the General Assembly intended section 305 to
govern such claims. For the reasons that follow, we affirm.
BACKGROUND
On April 15, 2002, Ronyale White obtained an emergency
order of protection against her husband, Louis Drexel. On May
3, 2002, White telephoned A911@ at 11:40 p.m. to request
police assistance because Drexel had entered her home. White
told the operator that Drexel was violating the order of
protection and that he owned a gun. The operator told White to
watch for the police. An emergency dispatcher then contacted
Chicago police officers Christopher Green and Donald
Cornelius in their beat car. After the dispatcher advised the
officers of White=s situation and gave them her address and
Drexel=s description, one of the officers responded A10-4.@ That
call concluded at 11:43 p.m. Witnesses saw the officers arrive
and wait briefly in their car at White=s home, then depart
without assisting her. Five minutes later, Drexel shot and killed
White.
Melissa Moore, independent executor of White=s estate,
filed a complaint in the circuit court of Cook County against
Officer Green, Officer Cornelius, and the City of Chicago under
the Wrongful Death Act (740 ILCS 180/1 (West 2002)) and the
Survival Act (755 ILCS 5/27B6 (West 2002)). 1 Moore alleged
that White was a protected person under the Domestic
Violence Act, and that the officers had a duty under the statute
to use all reasonable means to prevent further abuse or
1
Initially, Moore=s complaint also presented claims against other
defendants, including 911 operators and the emergency dispatcher. She
subsequently dismissed those claims and amended her complaint.
harassment by transporting White away from Drexel or
arresting him. Moore charged that the officers= willful and
wanton conduct in failing to investigate and assist White
breached this duty and proximately caused her death.
The City filed a motion to dismiss Moore=s complaint (see
735 ILCS 5/2B619(a)(9) (West 2002)), arguing that section
4B102 of the Tort Immunity Act, which provides absolute
immunity for failing to provide police protection, to prevent or
solve crimes, or to identify and apprehend criminals, and
section 4B107 of that Act, which provides absolute immunity for
failing to make an arrest, barred Moore=s claims. Green and
Cornelius joined this motion. Moore responded that section 305
of the Domestic Violence Act, which provides limited immunity
for failing to render emergency assistance or enforce the
statute and contains an exception for willful and wanton
conduct, trumped sections 4B102 and 4B107. The trial court
denied the defendants= motion to dismiss. The City filed a
motion to reconsider and alternatively to allow an interlocutory
appeal of a certified question under Supreme Court Rule
308(a) (155 Ill. 2d R. 308(a)). Green and Cornelius again
joined this motion. The trial court denied the motion to
reconsider, but concluded that there was substantial ground for
disagreement on the immunity question raised by the
defendants and that an immediate appeal could terminate the
case. The trial court submitted this issue to the appellate court:
ADoes Section 4B102 or 4B107 of the Local
Government and Governmental Employees Tort
Immunity Act provide absolute immunity to a
municipality and its police officers who are alleged to
have willfully and wantonly failed to prevent a crime
against a protected person by their actions or inactions
(as specified in [Moore=s amended complaint]) under
Section[s] 201 and 305 of the Illinois Domestic Violence
Act of 1986?@
The appellate court granted leave to appeal and answered
the certified question in the negative. 355 Ill. App. 3d 81. The
appellate reviewed the parties arguments, then reviewed this
court=s opinion in Calloway v. Kinkelaar, 168 Ill. 2d 312 (1995).
355 Ill. App. 3d at 86-87. In enacting the Domestic Violence
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Act, the General Assembly sought Ato encourage active
intervention on the part of law enforcement officials in cases of
intrafamily abuse.@ 355 Ill. App. 3d at 91. The appellate court
continued: ABased on the strongly worded purposes of the Act,
coupled with the supreme court=s construction of section 305 in
Calloway, we believe that, in enacting the Domestic Violence
Act, the legislature carved out a separate sphere of duties and
liabilities for law enforcement officials.@ 355 Ill. App. 3d at 92.
The appellate court rejected the defendants= argument that the
legislature did not intend the Domestic Violence Act to override
the Tort Immunity Act because section 2B101 of the Tort
Immunity Act exempts claims under certain enumerated
statutes, and the Domestic Violence Act is not one of those
statutes. 355 Ill. App. 3d at 92, citing 745 ILCS 10/2B101 (West
2002). According to the appellate court, section 2B101 of the
Tort Immunity Act does not provide an exhaustive list of
exemptions, and the Athe strongly worded language of the
legislature in enacting the Domestic Violence Act@ cannot be
ignored. 355 Ill. App. 3d at 92.
We allowed the defendants= petition for leave to appeal. 177
Ill. 2d R. 315(a). We allowed the Illinois Municipal League to file
an amicus curiae brief in support of the defendants and the
Illinois Coalition Against Domestic Violence, the Chicago
Metropolitan Women=s Network, and various other domestic
violence service organizations to file an amicus brief in support
of Moore. 155 Ill. 2d R. 345. On the legal issue presented in
this appeal, our review is de novo. See Feltmeier v. Feltmeier,
207 Ill. 2d 263, 266 (2003).
ANALYSIS
The Illinois Constitution of 1970 abolished sovereign
immunity, except as the General Assembly may provide (see
Ill. Const. 1970, art. XIII, '4), and the legislature exercised this
prerogative by retaining the Local Governmental and
Governmental Employees Tort Immunity Act. Van Meter v.
Darien Park District, 207 Ill. 2d 359, 368 (2003). The Tort
Immunity Act protects local public entities and public
employees from liability arising from the operation of
government. 745 ILCS 10/1B101.1(a) (West 2002); Bubb v.
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Springfield School District 186, 167 Ill. 2d 372, 378 (1995). The
Act grants only immunities and defenses. 745 ILCS
10/1B101.1(a) (West 1998). That is, it does not create duties,
but merely enumerates immunities which apply to certain
government operations. Epstein v. Chicago Board of
Education, 178 Ill. 2d 370, 381 (1997). Whether a municipality
and its employees owed a duty of care to the plaintiff and
whether they enjoyed immunity from the plaintiff=s subsequent
tort claims are separate inquiries. Barnett v. Zion Park District,
171 Ill. 2d 378, 388 (1996).
Here, the parties agree that there was a duty to protect
White, stemming from the Domestic Violence Act. See 750
ILCS 60/304 (West 2002); see also Calloway, 168 Ill. 2d at
324. In fact, by filing a motion to dismiss under section 2B619,
the defendants admitted the legal sufficiency of Moore=s tort
claims. See 735 ILCS 5/2B619(a)(9) (West 2002) (involuntary
dismissal is proper where Athe claim asserted against
defendant is barred by other affirmative matter avoiding the
legal effect of or defeating the claim@); see also Van Meter, 207
Ill. 2d at 367, citing Kedzie & 103rd Currency Exchange, Inc. v.
Hodge, 156 Ill. 2d 112, 115 (1993). Once we have determined
that a duty exists, we must then determine whether an
immunity applies. Village of Bloomingdale v. CDG Enterprises,
Inc., 196 Ill. 2d 484, 490 (2001).
Section 4B102 of the Tort Immunity Act provides:
ANeither a local public entity nor a public employee is
liable for failure to establish a police department or
otherwise provide police protection service or, if police
protection service is provided, for failure to provide
adequate police protection or service, failure to prevent
the commission of crimes, failure to detect or solve
crimes, and failure to identify or apprehend criminals.@
745 ILCS 10/4B102 (West 2002).
Section 4B107 provides that A[n]either a local public entity nor a
public employee is liable for an injury caused by the failure to
make an arrest ***.@ 745 ILCS 10/4B107 (West 2002). Both
sections offer absolute immunity (Barnes v. Chicago Housing
Authority, 326 Ill. App. 3d 710, 720 (2001); Hernandez v.
Kirksey, 306 Ill. App. 3d 912, 917 (1999)), and both sections
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apparently apply to Moore=s claims. In a typical case, when the
applicable provisions of the Tort Immunity Act provide absolute
immunity, the plaintiff=s claim is barred.
This is not a typical case, however, because the Domestic
Violence Act also contains its own immunity provision. Section
305 of that Act provides, AAny act of omission or commission
by any law enforcement officer acting in good faith in rendering
emergency assistance or otherwise enforcing this Act shall not
impose civil liability upon the law enforcement officer or his or
her supervisor or employer, unless the act is a result of willful
or wanton misconduct.@ 750 ILCS 60/305 (West 2002). This
section, too, apparently applies to Moore=s claims. We
therefore must determine which immunity provision governs.
The cardinal rule of statutory construction is to ascertain
and give effect to the legislature=s intent. Paszkowski v.
Metropolitan Water Reclamation District of Greater Chicago,
213 Ill. 2d 1, 6 (2004). Our analysis begins with the statutory
language, which remains the best indication of that intent.
Metzger v. DaRosa, 209 Ill. 2d 30, 34-35 (2004). The language
must be afforded its plain, ordinary, popularly understood
meaning. People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 279
(2003). When the language is unambiguous, the statute must
be applied as written without resorting to other aids of
construction. Lawrence v. Regent Realty Group, Inc., 197 Ill.
2d 1, 10 (2001).
However, when the plain language of one statute
apparently conflicts with the plain language of another statute,
we must resort to other means in determining the legislature=s
intent. Where two statutes conflict, we will attempt to construe
them together, in pari materia, where such an interpretation is
reasonable. See Ferguson v. McKenzie, 202 Ill. 2d 304, 311-12
(2001); McNamee v. Federated Equipment & Supply Co., 181
Ill. 2d 415, 427 (1998). We presume the legislature would not
enact a law that completely contradicts an existing law without
expressly repealing it. See In re Marriage of Lasky, 176 Ill. 2d
75, 79 (1997). AFor a later enactment to operate as a repeal by
implication of an existing statute, there must be such a
manifest and total repugnance that the two cannot stand
together.@ Jahn v. Troy Fire Protection District, 163 Ill. 2d 275,
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280 (1994). Legislative intent remains the paramount
consideration: ATraditional rules of statutory construction are
merely aids in determining legislative intent, and these rules
must yield to such intent.@ Paszkowski, 213 Ill. 2d at 7. In this
regard, we may properly consider the purpose of the statutes,
the problems that they target, and the goals that they seek to
achieve. In re Detention of Lieberman, 201 Ill. 2d 300, 308
(2002), see Fumarolo v. Chicago Board of Education, 142 Ill.
2d 54, 96 (1990) (ALegislative intent can be ascertained from a
consideration of the entire Act, its nature, its object and the
consequences that would result from construing it one way or
the other@). Where a general statutory provision and a more
specific statutory provision relate to the same subject, we will
presume that the legislature intended the more specific
provision to govern. Knolls Condominium Ass=n v. Harms, 202
Ill. 2d 450, 459 (2002). Similarly, we will presume that the
legislature intended the more recent statutory provision to
control. State v. Mikusch, 138 Ill. 2d 242, 254 (1990).
The General Assembly adopted the Tort Immunity Act in
1965 after this court abolished the sovereign immunity of
municipalities from tort claims in Molitor v. Kaneland
Community Unit District No. 302, 18 Ill. 2d 11 (1959). Harinek
v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 344
(1998). That Act included sections 4B102 and 4B107. More
than 20 years later, the General Assembly approved the
Domestic Violence Act, which states that it should be Aliberally
construed and applied to promote its underlying purposes.@ 750
ILCS 60/102 (West 2002). These purposes are, in part, to
A(1) Recognize domestic violence as a serious crime
against the individual and society which produces family
disharmony in thousands of Illinois families, promotes a
pattern of escalating violence which frequently
culminates in intra-family homicide, and creates an
emotional atmosphere that is not conducive to healthy
childhood development;
***
(3) Recognize that the legal system has ineffectively
dealt with family violence in the past, allowing abusers
to escape effective prosecution or financial liability, and
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has not adequately acknowledged the criminal nature of
domestic violence; that, although many laws have
changed, in practice there is still widespread failure to
appropriately protect and assist victims;
(4) Support the efforts of victims of domestic
violence to avoid further abuse by promptly entering and
diligently enforcing court orders which prohibit abuse
and, when necessary, reduce the abuser=s access to
the victim and address any related issues of child
custody and economic support, so that victims are not
trapped in abusive situations by fear of retaliation, loss
of a child, financial dependence, or loss of accessible
housing or services;
(5) Clarify the responsibilities and support the efforts
of law enforcement officers to provide immediate,
effective assistance and protection of victims of
domestic violence, recognizing that law enforcement
officers often become the secondary victims of domestic
violence, as evidenced by the high rates of police
injuries and deaths that occur in response to domestic
violence calls; and
(6) Expand the civil and criminal remedies for victims
of domestic violence; including, when necessary, the
remedies which effect the physical separation of the
parties to prevent further abuse.@ 750 ILCS 60/102
(West 2002).
The Act protects Aany person abused by a family or
household member,@ as well as children in the care of an
abuse victim and persons who house an abuse victim. 750
ILCS 60/201(a) (West 2002). It then streamlines the
procedures that victims of domestic violence must use to
obtain orders of protection (see 750 ILCS 60/202 (West 2002)),
and pushes petitions for orders of protection to the top of trial
court dockets (see 750 ILCS 60/212 (West 2002) (AA petition
for an order of protection shall be treated as an expedited
proceeding@); accord 750 ILCS 60/213(b) (West 2002). The Act
then details a broad panoply of remedies that orders of
protection may contain, Ain addition to other civil or criminal
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remedies available@ to the victim. 750 ILCS 60/214, 221 (West
2002).
Article III of the Domestic Violence ActBALAW
ENFORCEMENT RESPONSIBILITIES@Bshifts focus from
helping victims to obtain orders of protection to instructing law
enforcement agencies and officers to enforce them. The Act
provides that law enforcement officers may arrest, without
warrants, persons who violate orders of protection. 750 ILCS
60/301 (West 2002). The Act further provides that law
enforcement officers Ashall immediately use all reasonable
means to prevent further abuse@ when they believe a person is
a victim of domestic abuse, including, inter alia, (1) arresting the
party committing the abuse; (2) seizing any weapons used by
the party committing the abuse; (3) accompanying the victim to
his or her residence to remove personal effects; (4) offering the
victim information summarizing the relief available under the
statute; (5) providing the victim with a referral to a social
service agency; (6) advising the victim about seeking medical
attention and preserving evidence against the person
committing the abuse; and (7) transporting the victim to a
medical facility or shelter, or to the trial court to obtain an
emergency order of protection. 750 ILCS 60/304(a) (West
2002). The Act even lists duties for officers who investigate
domestic violence calls, but do not initiate criminal proceedings
against the party committing the abuse. 750 ILCS 60/304(b)
(West 2002).
This court interpreted this statute in Calloway. There, a wife
obtained a plenary order of protection against her husband
after he physically and mentally abused her during their
marriage. Several weeks later, the husband violated the order
of protection by making threatening telephone calls to the wife
at the restaurant where she worked. The husband threatened
to kill himself and her father in front of the wife and their
daughter. The wife then notified the sheriff=s department; the
sheriff drove to the husband=s residence, briefly observed it,
and drove away without further investigation. Shortly thereafter,
the husband again violated the order of protection by making
more threatening telephone calls to the wife at work. The wife
again notified the sheriff=s department, and a dispatcher
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acknowledged that the department was aware of the order of
protection. Within an hour, the husband entered the restaurant,
abducted the wife at gunpoint, and forced her into his pickup
truck. Nearly an hour later, State Police officers stopped the
truck. The wife jumped out of the truck, and when the police
approached it, they found the husband had shot and killed
himself.
The wife filed a complaint against the county and the county
sheriff, alleging that their willful and wanton or negligent
conduct breached their duties to her under the Domestic
Violence Act, proximately causing her extreme emotional
distress and trauma. The defendants filed a motion to dismiss
the complaint, contending that they were insulated from liability
under the so-called Apublic duty doctrine,@ a common law
immunity grounded in public policy under which a municipality
and its law enforcement officers may be shielded from liability
for failing to supply police protection. The trial court dismissed
the complaint, and the appellate court affirmed the dismissal of
the negligence claims, but reversed the dismissal of the willful
and wanton conduct claims. The defendants appealed.
This court affirmed. Calloway, 168 Ill. 2d 312. Initially, we
examined in detail the Domestic Violence Act, whose purposes
include recognizing that domestic violence is a serious crime
and recognizing that the legal system has failed to protect and
assist domestic violence victims. Calloway, 168 Ill. 2d at 320,
citing 750 ILCS 60/102(1), (3) (West 1992). We emphasized
two additional purposes Aof particular significance@Bnamely,
helping victims of domestic violence to avoid further abuse by
promptly entering and diligently enforcing orders of protection,
and expanding the civil and criminal remedies for victims.
Calloway, 168 Ill. 2d at 320, citing 750 ILCS 60/102(4), (6)
(West 1992).
We noted that to further these purposes section 304 of the
Domestic Violence Act enumerates the responsibilities of law
enforcement officers. Calloway, 168 Ill. 2d at 321-22, citing 750
ILCS 60/304(a) (West 1992). Section 305 of the Act limits law
enforcement liability to willful and wanton conduct. Calloway,
168 Ill. 2d at 322, citing 750 ILCS 60/305 (West 2002). We
explained that Athis partial immunity *** is a direct expression of
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legislative intent to reconcile the strongly worded purposes of
the Act *** with the recognition that officers performing their
legal duties should not be held civilly liable when their efforts to
enforce the Act fall short, unless the conduct in question can
be viewed as willful and wanton.@ (Emphasis in original.)
Calloway, 168 Ill. 2d at 322. To give effect to the legislature=s
purposes and intent in enacting the statute, we recognized a
right of action for civil damages, Aprovided that the injured party
can establish that he or she is a person in need of protection
under the Act, the statutory law enforcement duties owed to
him or her were breached by the willful and wanton acts or
omissions of law enforcement officers, and such conduct
proximately caused plaintiff=s injuries.@ Calloway, 168 Ill. 2d at
324.
We then addressed the defendants= public duty doctrine
argument:
AWe do not reach [the] defendants= arguments
concerning general principles of governmental tort
immunity because the Domestic Violence Act itself
provides an express limitation of liability on the part of
law enforcement officers and municipalities.
Accordingly, we need look no further than the language
and intent of the Act to ascertain whether and to what
extent law enforcement officers in the performance of
their statutory duties under the Act are immune from
liability to plaintiffs injured by acts or omissions of such
officers.@ (Emphasis added.) Calloway, 168 Ill. 2d at
327.
Notably, we mentioned Ageneral principles@ of tort immunity,
not statutory provisions. But see Calloway, 168 Ill. 2d at 331
(Freeman, J., specially concurring) (AThe >affirmative matter=
asserted to >avoid[ ] *** or defea[ ]= Calloway=s claims [citation]
were principles of common law and statutory governmental
immunity@); see also Sneed v. Howell, 306 Ill. App. 3d 1149,
1157 (1999) (Athe Tort Immunity Act and the common law
public-duty doctrine are not applicable in this case because the
General Assembly enacted the Illinois Domestic Violence Act
*** to deal with these issues@).
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The defendants sidestep Calloway. Calloway squarely held
that the Domestic Violence Act implies a private right of action
to enforce its provisions and therefore overcomes the common
law public-duty immunity. But, maintain the defendants,
Calloway did not address the issue here: whether sections
4B102 and 4B107 of the Tort Immunity Act insulate them from
such liability. According to the defendants, there is no language
in the Tort Immunity Act that exempts claims under the
Domestic Violence Act. See 745 ILCS 10/2B101 (West 2002).
In asserting that the Tort Immunity Act controls over conflicting
statutes, the defendants rely upon our opinions in Henrich v.
Libertyville High School, 186 Ill. 2d 381 (1999), Tosado v.
Miller, 188 Ill. 2d 186 (1999), Ferguson, 202 Ill. 2d 304, and
Paszkowksi, 213 Ill. 2d 1.
In Tosado, Ferguson, and Paszkowski, we decided the Tort
Immunity Act limitations provision trumped Code of Civil
Procedure limitations periods. Those cases involve dueling
limitations provisions, not dueling immunity provisions. Henrich
is more relevant.
In Henrich, a high school student had spine fusion surgery.
The student=s physician advised that he was permanently
restricted from any contact sports in physical education class.
The high school knew of this restriction, but less than a year
after the surgery, a substitute instructor required the student to
participate in a water basketball game during physical
education class. The student was severely and permanently
injured. He later filed a complaint alleging, inter alia, that the
school district was willful and wanton. The district filed a motion
to dismiss, arguing that it enjoyed absolute immunity under
sections 3B108(a) and 3B109 of the Tort Immunity Act (745
ILCS 10/3B108(a), 3B109 (West 2002)). The student responded
that the school district had only limited immunity under sections
24B24 and 34B84a of the School Code (105 ILCS 5/24B24,
34B84a (West 2002)). The School Code grants educators the
same immunity enjoyed by parents; school districts vicariously
share this immunity, which covers negligence claims, but not
willful and wanton conduct claims. Henrich, 186 Ill. 2d at 388-
89. The trial court agreed with the school district and dismissed
the student=s claims. The appellate court affirmed.
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This court, in turn, affirmed, concluding that the Tort
Immunity Act shielded the school district from liability. Henrich,
186 Ill. 2d at 395. Though the student argued that the specific
provisions of the School Code prevailed over the general
provisions of the Tort Immunity Act, that distinction was not
dispositive: A[T]he plain language of section 3B108(a) of the
Tort Immunity Act immunizes a local public entity=s failure to
supervise an activity on or the use of public property ***. The
legislature could not have made its intent any plainer.@ Henrich,
186 Ill. 2d at 391. Further, construing the statutes together, we
stated that each stood Ain its own sphere.@ Henrich, 186 Ill. 2d
at 392. The School Code immunity provision applies to both
private and public schools; the Tort Immunity Act immunity
provision applies only to public schools. Henrich, 186 Ill. 2d at
392. We reasoned that the legislature, therefore, intended to
grant public schools and their employees greater protection
than private schools and their employees. Henrich, 186 Ill. 2d
at 392. See Arteman v. Clinton Community Unit School District
No. 15, 198 Ill. 2d 475 (2002) (holding that sections 24B24 and
34B84a of the School Code provided no immunity from the
plaintiff=s allegations that the school district failed to provide a
student with safety equipment during physical education class,
but that section 2B201 of the Tort Immunity Act did); see also
Albers v. Breen, 346 Ill. App. 3d 799, 807 (2004) (holding that
the good-faith exception in the Mental Health and
Developmental Disabilities Confidentiality Act did not override
the immunity provided by section 2B201).
According to the defendants, the immunity provisions here,
like the immunity provisions in Henrich, can be harmonized
because the Domestic Violence Act and the Tort Immunity Act
are available to different entities. The Tort Immunity Act applies
to only Alocal public entities and public employees@ (745 ILCS
10/1B101.1 (West 2002)) and not Athe State or any office,
officer, department, division, bureau, board, commission,
university or similar agency of the State@ (745 ILCS 10/1B206
(West 2002)). The Domestic Violence Act confers immunity on
any Alaw enforcement officer@ (750 ILCS 60/305 (West 2002)).
The defendants assert that section 4B102 or 4B107
extinguishes tort claims against municipalities and their law
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enforcement officers pursuant to the Domestic Violence Act,
and that the immunity provided in section 305 remains
available to law enforcement officers who are outside the
scope of the Tort Immunity Act, such as the Illinois State Police
and police at various state universities. We disagree.
Section 305 and sections 4B102 and 4B107 cannot be
harmonized because clearly the immunity provided by both
statutes applies to Moore=s allegations. Unlike the statutes in
Henrich, the statutes here do not stand in their own spheres,
but rather vie for the same sphere. In Henrich, we limited the
immunity provided by the School Code to private schools and
their employees, while we applied the immunity provided by the
Tort Immunity Act to public schools and their employees. Such
a dichotomy between municipal and nonmunicipal defendants
is not reasonable in this case. It would pervert the broad
purposes of the Domestic Violence Act to conclude that the
immunity created by section 305 was intended to apply only to
law enforcement agencies and agents beyond the Tort
Immunity Act=s shield, who are less likely to investigate
domestic violence calls or to enforce the Act. The reading
advanced by the defendants threatens to reduce the duties in
the Domestic Violence Act to precatory admonitions. If the
defendants are correct, the General Assembly in passing the
Domestic Violence Act told municipal law enforcement
agencies what to do, but confided that there would be few
repercussions for failing to do so. We presume the legislature
did not intend the Act to be rendered superfluous or vaguely
advisory. See Lieberman, 201 Ill. 2d at 309; Sylvester v.
Industrial Comm=n, 197 Ill. 2d 225, 232 (2001).
Henrich is apposite in one regard, however. As the
appellate court correctly noted, our singular concern in
Henrich, as well as Tosado, Ferguson, and Paszkowski, was to
ascertain and give effect to the legislature=s intent. 355 Ill. App.
3d at 90-91, citing Henrich, 186 Ill. 2d at 386; see also
Ferguson, 202 Ill. 2d at 312 (citing Tosado, 188 Ill. 2d at 198
(Freeman, C.J., specially concurring), and Tosado, 188 Ill. 2d
at 199 (Heiple, J., specially concurring)); Paszkowski, 213 Ill.
2d at 13.
For all of their talk about invisible Afatal@ rays and
Aemanations and penumbras@ from the Domestic Violence Act,
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the defendants miss the unmistakable legislative intent. As
Moore and her amici note, and as we presciently stated in
Calloway, 168 Ill. 2d at 327, we need look no farther than the
language of the Domestic Violence Act to divine this intent. The
structure of that Act reflects a comprehensive statutory scheme
for reform of the legal system=s historically inadequate
response to domestic violence. The Domestic Violence Act, in
effect, is an omnibus source for rules regarding such cases. It
begins with a broad statement of its purposes (750 ILCS
60/102 (West 2002)) and a broad statement of the persons it
protects (750 ILCS 60/201(a) (West 2002)). Most importantly
for this case, it details the responsibilities of law enforcement
officers. 750 ILCS 60/304 (West 2002). As we noted in
Calloway, A[t]hese provisions reveal the General Assembly=s
intent to encourage active intervention on the part of law
enforcement officials in cases of intrafamily abuse.@ Calloway,
168 Ill. 2d at 324. Section 305 clearly works in concert with
section 304: section 304 creates duties; section 305 limits civil
liability for law enforcement agencies and their officers who
breach these duties by willful and wanton conduct.
This partial immunity is a direct expression of legislative
intent. Calloway, 168 Ill. 2d at 322. It was crafted long after the
legislature crafted sections 4B102 and 4B107 of the Tort
Immunity Act, but its phrasing mirrors that of Tort Immunity Act
provisions providing limited immunity. Compare 750 ILCS
60/305 (West 2002) (AAny act of omission or commission by
any law enforcement officer acting in good faith in rendering
emergency assistance or otherwise enforcing this Act shall not
impose civil liability upon the law enforcement officer or his or
her supervisor or employer, unless the act is a result of willful
or wanton misconduct@) with 745 ILCS 10/2B202 (West 2002)
(AA public employee is not liable for his act or omission in the
execution or enforcement of any law unless such act or
omission constitutes willful and wanton conduct@). Just as the
legislature exercised its constitutional prerogative to provide
immunity in the Tort Immunity Act, it did so in the Domestic
Violence Act as well. The legislature=s intent in this regard is
inconsistent with absolute immunity for municipalities under
section 4B102 or 4B107 of the Tort Immunity Act.
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The defendants argue that Ain cases like this one, where the
plaintiff alleges that police officers failed altogether to render
emergency assistance or to enforce the Domestic Violence
Act, it is doubtful that section 305 is applicable at all, since it
applies only to the provision of emergency assistance or the
enforcement of the Domestic Violence Act.@ The defendants
ignore the plain language of the section 305, which clearly
applies to both acts and omissions in rendering emergency
assistance or enforcing the statute. See 750 ILCS 60/305
(West 2002).
Finally, the defendants and their amicus, the Illinois
Municipal League, express concern that if municipalities are
not cloaked with absolute immunity, their coffers stand at great
risk. They contend that the Astrikingly broad@ and Asweeping@
duties imposed by the Domestic Violence Act, together with the
tragic and sympathetic facts associated with domestic violence
cases, lower the gates to a flood of potential litigation and
potentially ruinous damage awards.
We agree with the appellate court that
Athis argument rings hollow in light of the stated
purposes of the Domestic Violence Act, which are to
recognize domestic violence as a serious crime against
individuals and society, recognize that the legal system
has ineffectively dealt with family violence in the past,
and expand the civil and criminal remedies for victims of
domestic violence. Further, a plaintiff seeking relief
under the Act has a heavy burden to carry, as the
supreme court made clear in Calloway[.]@ 355 Ill. App.
3d at 92, citing Calloway, 168 Ill. 2d at 324.
The legislature chose to burden municipalities with the duty to
enforce the Domestic Violence Act; it also chose to provide
only limited immunity from tort claims associated with a breach
of this duty. It is not within our authority to question the wisdom
of these choices.
CONCLUSION
For the reasons that we have stated, we affirm the decision
of the appellate court.
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Affirmed.
JUSTICE McMORROW, specially concurring:
In this cause, decedent, Ronyale White, obtained an
emergency order of protection against her husband. When her
husband subsequently entered her home in violation of this
protection order, decedent contacted A911@ to report this
violation and request police assistance. Although two Chicago
police officers responded to the call, these officers inexplicably
failed to enter decedent=s home and drove away without
investigating the call or assisting decedent. Within minutes of
the officers= departure, decedent was shot and killed by her
husband. Plaintiff=s complaint alleged that defendants= willful
and wanton conduct in failing to investigate decedent=s 911 call
and in failing to assist her in this matter resulted in decedent=s
death. I am in agreement with the majority=s ultimate holding in
this cause which allows plaintiff=s complaint to proceed forward
past the dismissal stage.
The majority arrives at this ultimate holding by reasoning
that the provisions of the Domestic Violence Act mandate this
result. I agree with the majority that the unmistakable intent of
the General Assembly in enacting the Domestic Violence Act
was to implement a comprehensive restructuring Aof the legal
system=s historically inadequate response to domestic
violence.@ Slip op. at 14. To that end, in section 304 of the
Domestic Violence Act (750 ILCS 60/304 (West 2002)) the
legislature set forth with specificity the duties and
responsibilities of law enforcement officers when they are
called to respond to incidents of domestic violence. The
importance of law enforcement officers fulfilling these
responsibilities and duties was underscored by the legislature
in section 305 of the Domestic Violence Act (750 ILCS 60/305
(West 2002)), which provides that a law enforcement officer is
liable for any act of omission or commission which is the result
of willful and wanton misconduct. Thus, these provisions of the
Domestic Violence Act underscore that law enforcement
officials must be held accountable for their willful and wanton
failures to enforce orders of protection, otherwise the
legislature=s purpose in enacting the Domestic Violence Act
would be thwarted. Accordingly, I have no disagreement with
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the majority=s analysis with respect to the application of the
Domestic Violence Act to this cause, and the ultimate result
that plaintiff=s complaint alleging deliberate misconduct on the
part of defendants should not be dismissed at this preliminary
stage.
I write separately, however, due to my disagreement with
the majority=s interpretation of sections 4B102 and 4B107 of the
Local Governmental and Governmental Employees Tort
Immunity Act (Tort Immunity Act) (745 ILCS 10/4B102, 4B107
(West 2002)). Section 4B102 of the Tort Immunity Act provides:
ANeither a local public entity nor a public employee is
liable for failure to establish a police department or
otherwise provide police protection service or, if police
protection service is provided, for failure to provide
adequate police protection or service, failure to prevent
the commission of crimes, failure to detect or solve
crimes, and failure to identify or apprehend criminals.@
745 ILCS 10/4B102 (West 2002).
Similarly, section 4B107 of the Tort Immunity Act provides:
ANeither a local public entity nor a public employee is
liable for an injury caused by the failure to make an
arrest or by releasing a person in custody.@ 745 ILCS
10/4B107 (West 2002).
The majority finds that defendants in this action are absolutely
immune from liability based upon sections 4B102 and 4B107 of
the Tort Immunity Act. Therefore, absent the application in this
case of the saving provision in section 305 of the Domestic
Violence Act providing for the liability of defendants for willful
and wanton misconduct, the majority would hold that plaintiff=s
complaint alleging intentional bad acts on the part of
defendantsBdeliberate misconduct which allegedly proximately
caused decedent=s tragic deathBis subject to dismissal
because such intentional misconduct is completely immunized
under these two provisions of the Tort Immunity Act. 745 ILCS
10/4B102, 4B107 (West 2002). It has long been my position
that there Aare strong reasons why the policies underlying
grants of immunity for simple negligence should not be
impliedly expanded to reach willful and wanton or intentional
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misconduct.@ Barnett v. Zion Park District, 171 Ill. 2d 378, 403
(1996) (McMorrow, J., dissenting).
In my dissenting opinion in Barnett, I explained that the
public policy of granting immunity to government entities and/or
government employees against claims of negligent conduct is
animated by the rationale that significant expense and burdens
are placed upon the government when negligence on the part
of local public entities or officials carrying out their government
duties results in injuries to the public and such negligence
lawsuits Aare permitted to flourish unchecked.@ Barnett, 171 Ill.
2d at 403-04 (McMorrow, J., dissenting). It was my view,
however, that the Arationale underlying a grant of immunity for
simple negligence is different in kind from any justification for
immunizing tortious conduct that is intentionally harmful or
willful and wanton,@ and if the legislature actually intended to
completely shield all willful and wanton misconduct from
liability, the immunity statute should positively and
unequivocally state such an intention. Barnett, 171 Ill. 2d at
404 (McMorrow, J., dissenting).
Since Barnett, I have adhered to my belief that the policies
supporting blanket immunity for simple negligence are
distinguishable from any justification for shielding deliberate
governmental misconduct from liability. See In re Chicago
Flood Litigation, 176 Ill. 2d 179, 213-14 (1997) (McMorrow, J.,
concurring in part and dissenting in part); Harinek v. 161 North
Clark Street Ltd. Partnership, 181 Ill. 2d 335, 354 (1998)
(McMorrow, J., concurring in part and dissenting in part);
Henrich v. Libertyville High School, 186 Ill. 2d 381, 401-02
(1998) (McMorrow, J., dissenting); Village of Bloomingdale v.
CDG Enterprises, Inc., 196 Ill. 2d 484, 501-10 (2001)
(McMorrow, J., concurring in part and dissenting in part);
Arteman v. Clinton Community Unit School District No. 15, 198
Ill. 2d 475, 488-90 (2002) (McMorrow, J., concurring in part and
dissenting in part); Desmet v. County of Rock Island, No.
100261, slip op. at 20-23 (April 20, 2006) (McMorrow, J.,
dissenting). I remain steadfast in my conviction that deliberate
acts of governmental misconduct are not shielded under the
Tort Immunity Act by provisions which remain silent with
respect to an express exemption for intentional harmful acts.
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In the matter at bar, the majority interprets sections 4B102
and 4B107 of the Tort Immunity Act (745 ILCS 10/4B102 (West
2002)) as affording a local governmental entity and its
employees Aabsolute immunity@ and notes that A[i]n a typical
case, when the applicable provisions of the Tort Immunity Act
provide absolute immunity, the plaintiff=s claim is barred.@ Slip
op. at 5. In support of this proposition, the majority makes
citation to two decisions from our appellate court. Prior to the
majority opinion in the instant cause, and to the majority
opinion in Desmet v. County of Rock Island, which was under
advisement at the same time as the instant matter, this court
had not interpreted sections 4B102 and 4B107 of the Tort
Immunity Act as affording absolute immunity to governmental
defendants.
Under the majority=s analysis of these two provisions of the
Tort Immunity Act, local government entities and/or their
employees will be totally immune against liability for all injuries
caused to citizens as a result of a Afailure to establish a police
department or otherwise provide police protection service or, if
police protection service is provided, for failure to provide
adequate police protection or service, failure to prevent the
commission of crimes, failure to detect or solve crimes, and
failure to identify or apprehend criminals@ (745 ILCS 10/4B102
(West 2002)), even if a citizen is gravely injured or killed as a
result of intentional and knowing misconduct on the part of
defendants. The same is true of section 4B107 of the Tort
Immunity Act: under the majority=s analysis, a citizen is unable
to successfully prosecute a suit against a governmental entity
and/or employee for an injury Acaused by the failure to make an
arrest@ (745 ILCS 10/4B107 (West 2002)), even if that injury
directly results from intentional bad acts on the part of the
government and/or government employee. The majority arrives
at this result on the basis that neither section 4B102 nor section
4B107 contains an express exemption for willful and wanton
misconduct. Even though the majority allows plaintiff=s case to
proceed forward under the specific facts presented in the
cause at bar and withstand dismissal on the basis of the
application of the Domestic Violence Act, this limited exception
does not remedy the difficulties which arise as a result of the
majority=s holding. In the vast majority of other casesBmany
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which may be equally as serious but where the provisions of
another statute such as the Domestic Violence Act do not
apply to save a plaintiff=s complaintBgovernment entities and
their employees will be completely insulated from liability for
deliberate misconduct.
It is my view that absolute immunity should not shield from
liability acts performed by local governmental entities or
government officials in bad faith, especially where the provision
of life-saving police protection services are involved. It has long
been my position that it is not necessary to legislatively bestow
absolute immunity upon governmental entities and/or
governmental employees in order to protect public entities from
liability arising from Athe operation of government,@ which is the
stated purpose of the Tort Immunity Act (745 ILCS 10/1B101.1
(West 2002)). Rather, it is my view that construing section
4B102 and section 4B107 of the Tort Immunity Act to immunize
only negligent conduct would completely satisfy this legislative
goal.
Accordingly, I respectfully dissent from the majority=s
conclusion that willful and wanton misconduct by a local public
entity and/or employee is immunized from liability by the
provisions contained within sections 4B102 and 4B107 of the
Tort Immunity Act (745 ILCS 10/4B102, 4B107 (West 2002)). It
remains my position that where the Tort Immunity Act is silent
on the question of whether deliberate government misconduct
is exempt from immunity, it should not be concluded that such
silence equates with a positive intent on the part of the
legislature to shield local governmental entities and their
employees with unconditional and absolute immunity.
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