Rozsavolgyi v. City of AuroraRozsavolgyi v. City of Aurora
- Reporters:
- , , ,
- Before:
- Garman, Karmeier, Kilbride, Theis, Burke, Freeman, Thomas
OPINION
¶ 1 On November 13, 2012, plaintiff-appellant Patricia Rozsavolgyi filed a charge of discrimination on the basis of disability with the Illinois Department of Human Rights against the city of Aurora (City). Rozsavolgyi had been employed by the City from 1992 until she was involuntarily discharged on or around July 13, 2012. On November 18, 2013, Rozsavolgyi received a letter informing her that the time limitation for the Department of Human Rights to complete its investigation of the charge had expired and that she had the right to commence a civil action in the appropriate state circuit court.
BACKGROUND
¶ 3 Rozsavolgyi‘s claims are brought under the provisions of the Human Rights Act.
¶ 4 The City‘s answer raised six affirmative defenses and sought the striking and dismissal of counts I through IV. On October 17, 2014, the circuit court struck and dismissed counts I and IV of Rozsavolgyi‘s complaint for failure to state a cause of action, “finding that disability harassment is not a cause of action under the Illinois Human Rights Act.” The City voluntarily withdrew its affirmative defenses aimed at counts I and IV. However, on January 23, 2015, the circuit court granted plaintiff‘s motion to reconsider, reinstated counts I and IV, and gave the City leave to file amended affirmative defenses.
¶ 5 Relevant here, the City‘s third, fourth, and fifth affirmative defenses are based on the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act).
¶ 6 Rozsavolgyi filed a motion to strike the City‘s amended affirmative defenses, and the City filed a motion for a Rule 308(a) finding. The circuit court ordered the parties to brief both motions and scheduled a hearing for April 22, 2015. On April 22, 2015, the circuit court denied Rozsavolgyi‘s motion to strike the City‘s first and second affirmative defenses (subject-matter jurisdiction and existence of employer policy) but granted the motion to strike the third, fourth, fifth, and sixth affirmative defenses. The circuit court, however, granted the City‘s motion for a Rule 308(a) finding and stayed counts II and III pending the interlocutory appeal. On April 29, 2015, the circuit court entered an order finding that the prior interlocutory orders dated October 17, 2014, January 23, 2015, and April 22, 2015, involved questions of law as to which there were substantial grounds for difference of opinion and that an appeal from these orders
“1. Does section 2-102(A) of the Illinois Human Rights Act prohibit ‘disability harassment’ as a civil rights violation? Alternatively, do counts I & IV of Plaintiff‘s Complaint state cognizable civil rights violations under section 2-102(A) of the Illinois Human Rights Act?
2. If section 2-102(A) of the Illinois Human Rights Act permits a cause of action for disability harassment, does the statutory provision contained in section 2-102(D) of the Illinois Human Rights Act ‘that an employer shall be held responsible for sexual harassment of the employer‘s employees by nonemployees or nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures’ similarly apply to a cause of action for disability harassment brought under section 2-102(A) of the Illinois Human Rights Act?
If yes, does the employee or the employer bear the burden of alleging and proving that the employer is: (a) aware of the conduct by its nonmanagerial and nonsupervisory employees; and (b) fails to take reasonable corrective measures?
If no, can an employer assert the ’Faragher-Ellerth’ affirmative defense to a hostile work environment harassment claim brought under section 2-102(A) of the IHRA?
3. Does the Local Government[al] and Governmental Employees Tort Immunity Act, 745 ILCS 10/1, et seq., apply to a civil action under the Illinois Human Rights Act where the plaintiff seeks damages, reasonable attorneys’ fees and costs?
If yes, should this Court modify, reject or overrule its prior holdings in Streeter v. County of Winnebago, 44 Ill. App. 3d 392, 394-95 (2nd Dist. 1976), Firestone v. Fritz, 119 Ill. App. 3d 685, 689 (2nd Dist. 1983), and People ex rel. Birkett v. City of Chicago, 325 Ill. App. 3d 196, 202 (2nd Dist. 2001) that ‘the Tort Immunity Act applies only to tort actions and does not bar actions for constitutional violations‘?”
¶ 7 The appellate court allowed the City‘s Rule 308 petition for leave to appeal. A divided panel answered the certified questions as follows: (1)
¶ 9 Rozsavolgyi petitioned the appellate court for rehearing as to the third certified question. Alternatively, Rozsavolgyi requested that the appellate court certify the third certified question as involving a question of such importance that it should be decided by the Illinois Supreme Court. See
ANALYSIS
¶ 11 Rozsavolgyi and the Department argue that the third certified question should not have been answered by the appellate court and that the majority‘s answer should be vacated because the question was improperly certified by the circuit court under
¶ 12 The City contends that the third certified question should be answered in the affirmative and that this court should further hold that the City‘s tort immunity defenses bar Rozsavolgyi‘s requested damages relief. The City also argues that the first certified question should be answered in the negative, for counts I and IV to be dismissed, and that this court should hold that Rozsavolgyi‘s failure to plead and prove that she utilized and complied with the City‘s anti-harassment/reasonable accommodation policies absolutely bars her from recovering damages resulting from the alleged civil rights violations.
¶ 13 Essentially, we are asked to go beyond the third certified question because, under
¶ 14 The threshold question facing this court is to decide which issues presented, if any, to address. Before answering this question, however, we believe it prudent to first examine
Illinois Supreme Court Rule 316
¶ 16
¶ 17 As a matter of course, the Illinois Supreme Court determines whether to grant review by exercising its “sound judicial discretion.”
¶ 18
Illinois Supreme Court Rule 308
¶ 20
“When the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved. Such a statement may be made at the time of the entry of the order or thereafter on the court‘s own motion or on motion of any party. The Appellate Court may thereupon in its discretion allow an appeal from the order.”
Ill. S. Ct. R. 308(a) (eff. Jan. 1, 2016).
¶ 21 By definition, certified questions are questions of law subject to de novo review. Moore v. City of Chicago Park District, 2012 IL 112788, ¶ 9. Certified questions must not seek an application of the law to the facts of a specific case. De Bouse v. Bayer AG, 235 Ill. 2d 544, 557 (2009). If addressing a certified question will result in an answer that is advisory or provisional, the certified question should not be reached. See Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 469-70 (1998); In re Estate of Luccio, 2012 IL App (1st) 121153, ¶ 32 (“The courts of Illinois do not issue advisory opinions to guide future litigation ***.” (citing Golden Rule Insurance Co. v. Schwartz, 203 Ill. 2d 456, 469 (2003))). Similarly, if an answer is dependent upon the underlying facts of a case, the certified question is improper. In re Estate of Luccio, 2012 IL App (1st) 121153, ¶ 32 (“As too often happens, a certified question is framed as a question of law, but the ultimate disposition depends on ‘the resolution of a host of factual predicates.’ ” (quoting Dowd & Dowd, Ltd, 181 Ill. 2d at 469)). Appeals under
¶ 22 Subsection (e) of
¶ 23 Upon survey of
The Instant Case
¶ 25 This court‘s scope of review is generally limited to the certified question. Moore, 2012 IL 112788, ¶ 9. The appellate court‘s answer to a certified question is reviewed de novo. Id. Whether the appellate court erred in allowing an appeal under
“3. Does the Local Government[al] and Governmental Employees Tort Immunity Act, 745 ILCS 10/1, et seq., apply to a civil action under the Illinois Human Rights Act where the plaintiff seeks damages, reasonable attorneys’ fees and costs?
If yes, should this Court modify, reject or overrule its prior holdings in Streeter v. County of Winnebago, 44 Ill. App. 3d 392, 394-95 (2nd Dist. 1976), Firestone v. Fritz, 119 Ill. App. 3d 685, 689 (2nd Dist. 1983), and People ex rel. Birkett v. City of Chicago, 325 Ill. App. 3d 196, 202 (2nd Dist. 2001), that ‘the Tort Immunity Act applies only to tort actions and does not bar actions for constitutional violations’ [citation]?”
¶ 26 The third certified question is improperly overbroad, should not have been answered, and does not warrant our review at this time. As framed, the third certified question ignores the breadth of the Illinois Human Rights Act, which provides for numerous types of civil actions for unlawful conduct in a variety of contexts.
¶ 27 The City asserts several arguments as to why the form of the certified question should not preclude our review. The City contends that Rozsavolgyi forfeited any argument as to the form of the third certified question because she did not raise it in her application for certificate of importance or petition for rehearing and did not argue that the appellate court abused its discretion in allowing the question. However, when the City sought permissive interlocutory appeal, Rozsavolgyi filed an answer in opposition to defendant‘s application for leave to appeal pursuant to
¶ 28 The City posits that the question was intended to be broadly framed but that this court may modify the certified question to correct any impropriety. See
¶ 29 The City maintains that, under
¶ 30 However, the third certified question was presented to the appellate court in the same form as it reaches this court. The overbreadth of the third certified question was as readily apparent then as it is now. Accordingly, the appellate court‘s issuance of a certificate of importance in this case does not somehow automatically remedy the third certified question‘s defects.
¶ 31 As mentioned, a certified question must involve a question of law as to which there is substantial ground for difference of opinion and for which an immediate appeal from the interlocutory order may materially advance the ultimate termination of the litigation. See
¶ 32 The substantial grounds for difference of opinion prong in
¶ 33
¶ 34 For the foregoing reasons, we decline to answer the third certified question. We also think it appropriate to remind litigants and the lower courts that appellate review of interlocutory orders is not favored (see
¶ 35 That
¶ 36 Moreover, Rozsavolgyi did not need to petition the appellate court for rehearing or alternatively for a certificate of importance in order to avoid forfeiture (see
¶ 37 We further note that Rozsavolgyi may have been granted some recourse even if a
¶ 38 In sum, there was no reason for Rozsavolgyi to have resorted to
¶ 39 Because the appellate court granted a certificate of importance and the whole case is now before this court does not mean that this court will address issues that should not be before it at this time or in this manner. The appellate court erred in answering the third certified question, and we therefore vacate the court‘s opinion and remand to the circuit court for further proceedings. Because this court declines to answer the third certified question—the only certified question upon which a certificate of importance was issued—we likewise decline to address the other issues urged upon us. Should issues again arise upon remand, we remind the parties and the courts below both of the proper process of appeal and of this court‘s ability to exercise its discretion if and when it deems it necessary to do so.
CONCLUSION
¶ 41 The appellate court issued a certificate of importance under
¶ 42 Certified question not answered.
¶ 43 Appellate court judgment vacated.
¶ 44 Remanded.
¶ 45 JUSTICE BURKE, dissenting:
¶ 46 On April 29, 2015, the circuit court of Kane County certified three questions to the appellate court pursuant to
¶ 47 There are times when judicial waste of this sort is unavoidable, such as when a jurisdictional bar or mootness prevents us
¶ 48 First, the majority‘s conclusion that the third certified question is improper and that the appellate court abused its discretion in answering the question is simply incorrect. Second, the majority fails to address or even acknowledge the defendant‘s cross-appeal from the appellate court‘s judgment regarding the first and second certified questions, even though that cross-appeal is before us as a matter of right. Third, rather than simply vacating that portion of the appellate court judgment regarding the third certified question, the majority vacates the entirety of the appellate court‘s judgment, even though the majority has just stated it is not reaching the merits of the first and second certified questions. Finally, the majority holds that a litigant may not seek, and our appellate court may not issue, a certificate of importance in a case that involves a certified question under
¶ 49 I. Third Certified Question
¶ 50 Plaintiff filed a complaint in January 2014 alleging that her employer, the city of Aurora, committed four civil rights violations under article 2 of the Illinois Human Rights Act (
¶ 51 Subsequently, however, on defendant‘s motion, the court certified three questions pursuant to
“(3) Does the [Tort Immunity Act] apply to a civil action under the Human Rights Act where the plaintiff seeks damages, reasonable attorney fees, and costs? If yes, should this court modify, reject, or overrule its holdings in People ex rel. Birkett v. City of Chicago, 325 Ill. App. 3d 196, 202 (2001), Firestone v. Fritz, 119 Ill. App. 3d 685, 689 (1983), and Streeter v. County of Winnebago, 44 Ill. App. 3d 392, 394-95 (1976), that ‘the Tort Immunity Act applies only to tort actions and does not bar actions for constitutional violations’ (Birkett, 325 Ill. App. 3d at 202)?”
¶ 52 The majority of the appellate court answered “yes” to this question. 2016 IL App (2d) 150493, ¶¶ 97-115. The appellate court held that the Tort Immunity Act applies to actions under the Human Rights Act and defendant can assert immunity with respect to plaintiff‘s requests for damages but not to her requests for equitable relief. Id. ¶¶ 112-15. The appellate court then certified the case to this court pursuant to
¶ 54 I find the majority‘s holding perplexing, since there is nothing improper or overly broad about the way the question is framed.
¶ 55 Certified questions, by their nature, are pure questions of law. See Dowd & Dowd Ltd. v. Gleason, 181 Ill. 2d 460, 469 (1998); Bauer v. Giannis, 359 Ill. App. 3d 897, 902 (2005). As such, a question certified under
¶ 56 It is true that a reviewing court should avoid answering a certified question where the answer would not materially advance the ultimate termination of the litigation, as required by
¶ 57 The third certified question asks, as a matter of law, whether a defendant may assert immunity under the Tort Immunity Act for claims brought under the Human Rights Act. The answer to this question obviously will affect the parties’ rights and, thus, will not result in a hypothetical or “advisory” opinion. See In re Marriage of O‘Brien, 2011 IL 109039, ¶ 20 (an opinion is only advisory if ” ‘it is impossible for this court to grant effectual relief to either party’ ” (quoting In re Mary Ann P., 202 Ill. 2d 393, 401 (2002))). If the answer to the question is
¶ 58 The majority suggests that it is somehow improper for this court to address the application of the Tort Immunity Act to all claims brought under the Human Rights Act, rather than to plaintiff‘s specific claims of employment discrimination. The majority‘s concern is unfounded. The trial court granted plaintiff‘s motion to strike defendant‘s affirmative defenses based on appellate court case law holding that the Tort Immunity Act is applicable only to tort claims and is inapplicable to constitutionally based claims. See People ex rel. Birkett v. City of Chicago, 325 Ill. App. 3d 196, 202 (2001); Firestone v. Fritz, 119 Ill. App. 3d 685, 689 (1983); Streeter v. County of Winnebago, 44 Ill. App. 3d 392, 394-95 (1976). While it is true that the Human Rights Act provides for actions in a variety of contexts (e.g., employment, education, public accommodations), the majority never explains why an answer to the third certified question would differ depending on the type of civil rights violation being alleged. Actions to redress civil rights violations under the Human Rights Act are distinct from tort claims. Maksimovic v. Tsogalis, 177 Ill. 2d 511, 518 (1997). Accordingly, if the Birkett line of cases is correct, statutory immunities under the Tort Immunity Act will not apply to any Human Rights Act claims, including the ones in this case. The framing of the third certified question makes perfect sense in this context. There is absolutely no basis for holding that the appellate court abused its discretion and no reason for the majority to refuse to address the question.
¶ 59 The majority also suggests that the third certified question fails to meet the criteria for certification under
¶ 60 The trial court found, and I agree, that the state of the law on this issue is uncertain and lacking in clear direction. The third certified question involves statutory construction, a proper subject for certification under
¶ 61 The majority also asserts that this court should not address the third certified question because answering it would not “materially advance the ultimate termination of the litigation.” Supra ¶ 33. The majority notes that, even if the Tort Immunity Act shields defendant from plaintiff‘s claims for damages, attorney fees and costs, defendant‘s liability would still be at issue as to the other forms of relief sought by plaintiff (e.g., back pay, front pay, loss of benefits). I cannot agree. Removing an entire category of damages from consideration obviously advances the course of litigation, and it is disingenuous to pretend otherwise.
¶ 62 Moreover, even if I agreed that the phrasing of the third certified question is too broad because it refers to all civil actions under the Human Rights Act, I see no reason why this court should not reformulate the question. If the majority believes that the answer to the question depends on the type of Human Rights Act claim at issue, they should limit their answer to employment discrimination claims under article 2 of the Human Rights Act. There is nothing preventing the majority from modifying the wording of the question and answering it, in the interest of judicial economy. This court has done precisely that on more than one occasion.
¶ 63 Most recently, in Hampton v. Metropolitan Water Reclamation District of Greater Chicago, 2016 IL 119861, this court completely rewrote a certified question that was based on a legally incorrect premise. The original certified question asked whether Arkansas Game & Fish Comm‘n v. United States, 568 U.S. 23 (2012), “overruled” People ex rel. Pratt v. Rosenfield, 399 Ill. 247 (1948), that a temporary flooding is not a taking under our state constitution. Hampton, 2016 IL 119861, ¶ 6. The appellate court answered affirmatively, and this court granted leave to appeal. Recognizing that the United States Supreme Court has no authority to overrule a state court‘s declaration of state law, a majority of this court proceeded to address an entirely different question from that certified by the trial court. Id. ¶ 10. The majority noted that “[t]he circuit court should have avoided the use of the term ‘overruled’ and drafted its certified question in a way that would better reflect the role of federal precedent in Illinois law.” Id. “Nevertheless,” the majority went on, “we will consider whether the decision in Arkansas Game & Fish Comm‘n ought to be incorporated into this court‘s Illinois takings clause jurisprudence and, if so, whether that decision conflicts with this court‘s decision in Pratt.” Id. If this court can completely rewrite a certified question, as we did in Hampton, then there is no reason why the third certified question cannot be modified here.
¶ 65 There is absolutely no reason why this court should refuse to address the third certified question now before us, even if the phrasing of the question requires modification. The issue has been thoroughly briefed and argued by the parties. The trial and appellate courts have sought clarification, and a decision on the issue at this time would materially advance the litigation and also serve the interest of judicial economy. The majority offers no justification for its failure to rephrase and answer the question other than to say it is not “persuaded that modification of the third certified question is warranted in this case.” Supra ¶ 28. I am unsure what this means, since there is nothing about this case that differentiates it from other cases in which this court has exercised its discretion to reformulate a certified question so that it could be addressed. Unfortunately, the majority fails to resolve the controversy at this juncture, forcing the parties and the lower courts to waste time and resources and, inevitably, merely delaying the time at which this issue will once again come before this court.
¶ 66 II. Cross-Appeal
¶ 67 Not only does the majority fail to address the issue raised by the plaintiff, but the majority does not even mention that defendant has filed a cross-appeal in this court. This is a serious omission, as the cross-appeal is a part of this case, and this court has no discretion not to consider it.
¶ 68 Following the appellate court‘s decision, plaintiff filed a petition for rehearing or, in the alternative, a request for a certificate of importance pursuant to
¶ 69 The majority never mentions that a cross-appeal has been filed in this court. Instead, they characterize the issues raised in the cross-appeal as “other issues urged upon us” by the defendant. Supra ¶ 39. The majority then states that it is exercising its “discretion” not to address the issues raised by defendant, based on the fact that the third certified question was “the only certified question upon which a certificate of importance was issued.” Supra ¶ 39. These statements represent a fundamental misunderstanding of the nature of an appeal under
¶ 70 The appellate court has the authority to issue a certificate of importance in a case pursuant to
¶ 71 Because an appeal pursuant to
¶ 72 III. Vacation of Appellate Court‘s Judgment
¶ 73 The majority exacerbates its errors in this case by vacating the entirety of the appellate court‘s judgment, including the appellate court‘s answers to the first and second certified questions. The majority takes this unusual and unnecessary step after expressly declining to consider the merits of the certified questions. There is no finding by the majority that the appellate court erred in granting review of the first and second questions or that the answers were incorrect. Thus, this court is now vacating a portion of the judgment of the appellate court for no legal reason
¶ 74 IV. Appellate Procedure Involving a Rule 316 Certificate of Importance
¶ 75 Finally, I cannot agree with the majority that it was improper for the plaintiff to seek, and for the appellate court to allow, an appeal to the supreme court under
¶ 76 The problem with the majority‘s holding is that nothing in our constitution or our rules limits a party‘s right of appeal in this way.
¶ 77 The majority cites no case law to support the notion that
¶ 78 The fact that, as the majority states, the “vast majority” of cases involving
¶ 79 It is not this court‘s place to prevent future litigants from availing themselves of a right of appeal written into our state constitution. Plaintiff did nothing wrong in seeking a certificate of importance in this case, and the appellate court did not err in granting one.
¶ 80 For the foregoing reasons, I respectfully dissent.
¶ 81 JUSTICES FREEMAN and THOMAS join in this dissent.