Malmberg v. Smith , 241 Ill. App. 3d 428 ( 1993 )

PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

Respondent Gary Smith, administrative manager of the Illinois Department of Transportation (DOT), appeals from a contempt citation and a $100 fine for failure to comply with the circuit court’s order of May 20, 1992. The order required Smith to turn over records sought by Malmberg in a “Petition for Discovery Before Suit.” We reverse and dismiss the petition.

On April 13, 1992, petitioner David Malmberg, an employee of the Illinois Department of Transportation, filed in St. Clair County a “Petition for Discovery Before Suit to Identify Responsible Persons and Entities” under Supreme Court Rule 224 (134 Ill. 2d R. 224). Malmberg alleged that a fellow employee made a false statement about him to their employer and that as a result Malmberg was suspended from work for 30 days. He filed the petition to determine the identity of the informant and the contents of the statement. Respondent Smith refused to disclose the information.

On May 20, 1992, the circuit court held that the information sought by Malmberg was within the scope of Rule 224. The circuit court’s order required Smith to produce all Department of Transportation records relating to complaints made to the DOT concerning the alleged use by Malmberg of illegal substances. On June 1, 1992, Smith filed a motion to stay enforcement of the circuit court’s order pending appeal. Malmberg answered with a petition for rule to show cause why Smith should not be held in contempt for failure to comply with the May 20, 1992, order. On July 6, 1992, the circuit court denied respondent’s motion to stay and granted petitioner’s rule to show cause.

On appeal, respondent argues that under the doctrine of sovereign immunity, the circuit court lacked subject matter jurisdiction to hear the petition. Alternatively, respondent argues that the circuit court erred in granting Malmberg’s petition. The petitioner argues that respondent waived the issue of sovereign immunity because he did not raise it in the trial court and that the Rule 224 petition was properly granted.

• 1 Petitioner’s argument that respondent has waived subject matter jurisdiction is without merit. Subject matter jurisdiction cannot be waived. Lack of subject matter jurisdiction can be raised at any time and in any court. (Dorr-Wood, Ltd. v. Department of Public Health (1981), 99 Ill. App. 3d 170, 173, 425 N.E.2d 499, 501.) Therefore, we will consider respondent’s argument that this court lacks subject matter jurisdiction.

Respondent contends that, because sovereign immunity dictates that the State can be sued only in the Court of Claims, that court has exclusive jurisdiction over the matter and the circuit court was without subject matter jurisdiction to hear the case. (People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 383 N.E.2d 977.) The DOT contends that sovereign immunity attaches because Malmberg’s discovery petition is in reality a suit against the State and it seeks to control the actions of the State.

Whether an action is within the doctrine of sovereign immunity depends not on the named parties but on the particular issues and the relief sought. (Hudgens v. Dean (1979), 75 Ill. 2d 353, 355, 388 N.E.2d 1242, 1243.) The State is the real party in an action brought against an officer or agency if a judgment or decree for the plaintiff, although nominally against the officer or agency, could control the actions of the State or subject it to liability. (Struve v. Department of Conservation (1973), 14 Ill. App. 3d 1092, 303 N.E.2d 32.) In addition, if the State will be directly or adversely affected by the judgment or decree, the State is the real party against whom relief is sought. Herget National Bank v. Kenney (1985), 105 Ill. 2d 405, 475 N.E.2d 863.

In this case, an order compelling respondent to release the identity of a person who may be responsible in damages does not directly or adversely affect the State nor does it seek to control the actions of the State. It will not require the State to redraft its policies and guidelines as was the case in Kilcoyne v. Paelmo (1990), 204 Ill. App. 3d 139, 562 N.E.2d 231 (judgment for the plaintiff could require the State to redraft its policies and guidelines on the release and incarceration of mental patients). Nor will it interfere with the State’s business relations as was the case in Foley v. American Federation of State, County, & Municipal Employees (1990), 199 Ill. App. 3d 6, 556 N.E.2d 581 (judgment for the plaintiff would control the State’s dealings with its unions and their members).

Instead, we believe that a Rule 224 discovery petition is very similar to an action pursuant to the Freedom of Information Act (Ill. Rev. Stat. 1991, ch. 116, par. 211(c)), which allows suit to be filed in circuit court to compel compliance with the Act. In each case, the State is required to reveal some information to the petitioner. At times the information sought in a Rule 224 discovery petition might also be available via a Freedom of Information Act request or suit. It is inconsistent to conclude that, although the same information is sought, sovereign immunity could eliminate jurisdiction depending solely upon which title is attached to the petition.

Additionally, if the DOT is allowed to assert sovereign immunity to withhold Rule 224 information from potential litigants, the public policy supporting Rule 224 is undermined. (Shutes v. Fowler (1991), 223 Ill. App. 3d 342, 584 N.E.2d 920 (Rule 224 is constitutional and the public policy of the State supports the rule’s validity and its continued use).) The purpose of Rule 224 is to aid plaintiffs in the discovery of the identity of defendants. For example, the widow of an out-of-State driver, who was killed in a road construction area, could use Rule 224 as a proper tool to require the State to reveal the identity of the highway contractors who might be responsible for her husband’s death.

This example illustrates the proper use of Rule 224, which is to ascertain the identity of potential defendants. Used as defined by Roth v. St. Elizabeth’s Hospital (1993), 241 Ill. App. 3d 407, the discovery available pursuant to Rule 224 is limited to learning the identity of those who may be responsible. When used properly, sovereign immunity is not implicated by this rule. This court has subject matter jurisdiction to determine whether the circuit court erred in granting Malmberg’s Rule 224 discovery petition.

Discovery under Rule 224 is limited to learning the identities of potential defendants. (Roth v. St. Elizabeth’s Hospital (1993), 241 Ill. App. 3d at 413-14; Shutes v. Fowler (1991), 223 Ill. App. 3d 342, 584 N.E.2d 920.) Supreme Court Rule 224 is inapplicable when the identity of the defendant is already known. Guertin v. Guertin (1990), 204 Ill. App. 3d 527, 561 N.E.2d 1339.

In the instant case, the identity of the potential defendant was known. From the record it is apparent that plaintiff knew the identity of the informant, and during oral argument before the trial court counsel admitted that he knew that the informant had accused his client of illegal drug use while on duty. Counsel needed no more to enable him to file a claim. Because the potential defendant’s identity was known and because Rule 224 discovery is limited to the discovery of the identity of potential defendants, the circuit court erred when it granted Malmberg’s Rule 224 petition.

In view of our reversal on other grounds, we need not consider the DOT’s venue and confidentiality arguments. The judgment of the circuit court is reversed, and pursuant to our powers under Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366(a)(5)), we dismiss the Rule 224 petition.

Reversed; petition dismissed.

LEWIS, J., concurs.