Doe v. Burgos

• Decision Date: 05 August 1994
• Docket Number: No. 4-93-0576,4-93-0576
• Citation: 265 Ill.App.3d 789,638 N.E.2d 701
• Parties: , 202 Ill.Dec. 833 Jane DOE, Plaintiff-Appellee, v. Violetta BURGOS, Defendant, and The Illinois Department of Corrections, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 701

638 N.E.2d 701

265 Ill.App.3d 789, 202 Ill.Dec. 833

Jane DOE, Plaintiff-Appellee, v. Violetta BURGOS, Defendant, and The Illinois Department of Corrections, Defendant-Appellant.

No. 4-93-0576.

Appellate Court of Illinois,

Fourth District.

Argued May 18, 1994.

Decided Aug. 5, 1994.

Roland W. Burris, Atty. Gen., Chicago, Rosalyn B. Kaplan, Sol. Gen., William K. Blanchard (argued), Asst. Atty. Gen., for appellant.

Richard J. Black (argued), Black & Black, Morris, for appellee.

Justice COOK delivered the opinion of the court:

Jane Doe, a correctional officer, filed a complaint seeking that Violetta Burgos, an inmate at Dwight Correctional Center, undergo a human immunodeficiency virus (HIV) antibodies test; that the Illinois Department of Corrections (IDOC) be forced to take whatever steps necessary to see that Burgos is tested; and that the test results be disclosed to Doe. The trial court granted Doe's requested relief. IDOC appeals. Burgos does not appeal. We affirm.

Doe filed her complaint against Burgos and IDOC on February 3, 1993. Doe sought the aforementioned relief based on section 7(c) of the AIDS Confidentiality Act (Act) (Ill.Rev.Stat.1991, ch. 111 1/2, par. 7307(c)). Burgos, in her answer, stated she had been voluntarily tested on January 28, 1993, and attached the test results.

In March 1993, Doe filed a motion for summary judgment. IDOC filed a cross-motion for summary judgment asserting Doe had received all her requested relief so the issue was moot. IDOC also asserted that the cause was barred by sovereign immunity. The trial court in April 1993 denied both motions for summary judgment but, finding that time was of the essence, entered an order requiring that within 30 days IDOC furnish Doe with detailed information of the testing of Burgos or, in the alternative, force Burgos to undergo a second test as per the Act. The trial court gave Doe 30 days to respond whether the testing procedures, whichever alternative was chosen, were acceptable.

IDOC chose not to retest Burgos, but did provide detailed information of the first test. Doe then filed affidavits alleging the first test was inadequate, a motion that a new test be performed, and a motion for attorney fees. After a hearing, the trial court entered its order on July 1, 1993, finding the first test inadequate. The court directed IDOC to draw blood from inmate Burgos in a medically and scientifically acceptable manner and transport it in a medically and scientifically acceptable manner to a lab chosen by Doe. The blood was to be drawn in Doe's presence, and the test results were to be disclosed to the parties "and to no others." The court reserved ruling on the motion for attorney fees, but found there was no just reason to delay appeal. IDOC then filed this appeal and a motion for stay pending appeal, which was granted by this court.

Doe has been a correctional officer at Dwight Correctional Center for 13 years. On February 19, 1989, she was attempting to control a disturbance when she was bitten twice by Burgos; the bites broke the skin and lasted about two minutes. Doe claims she made several requests that Burgos be tested; IDOC denies she made any requests until it was contacted by her lawyer in 1992. Although IDOC concluded it had no obligation to test Burgos, it succeeded in having Burgos voluntarily tested approximately five days prior to Doe's filing of her claim. Those test results were negative. Doe herself tested negative for HIV anti-bodies during the 3 1/2 years prior to the filing of her claim.

IDOC first contends the trial court erred on its cross-motion for summary judgment because the doctrine of sovereign immunity applies to bar Doe's cause of action in the circuit court. Doe maintains the doctrine does not apply because the relief sought is against Burgos and not against IDOC.

Sovereign immunity was abolished in Illinois "[e]xcept as the General Assembly may provide by law." (Ill.Const.1970, art. XIII, § 4.) The General Assembly, however, reasserted the State's sovereign immunity, expressly providing "the State of Illinois shall not be made a defendant or party in any court" except as provided in the Illinois Public Labor Relations Act (Ill.Rev.Stat.1991, ch. 48, par. 1601 et seq.) or the Court of Claims Act (Ill.Rev.Stat.1991, ch. 37, par. 439.1 et seq.). (Ill.Rev.Stat.1991, ch. 127, par. 801.) When sovereign immunity applies, the circuit court is without jurisdiction to entertain the claim. See Healy v. Vaupel (1990), 133 Ill.2d 295, 307-17, 140 Ill.Dec. 368, 374-79, 549 N.E.2d 1240, 1246-51.

The sovereign immunity of the State has been extended to actions in which a State department or agency is named as a party defendant. (Smith v. Jones (1986), 113 Ill.2d 126, 132, 100 Ill.Dec. 560, 562, 497 N.E.2d 738, 740; Noorman v. Department of Public Works & Buildings (1937), 366 Ill. 216, 219, 8 N.E.2d 637, 638; Schwing v. Miles (1937), 367 Ill. 436, 441, 11 N.E.2d 944, 947.) The supreme court has stated "[a] department of State government is commonly known as a part, or division, of the government" and as such is granted sovereign immunity. (Noorman, 366 Ill. at 220, 8 N.E.2d at 638.) Whether an action is in fact one against the State, and hence one that must be brought in the Court of Claims, depends not on the formal identification of the parties but rather on the issues involved and the relief sought. Healy, 133 Ill.2d at 308, 140 Ill.Dec. at 375, 549 N.E.2d at 1247 (claimed negligence against State employees).

IDOC is not directly or adversely affected here because the cause of action, in substance, is against Burgos rather than IDOC. IDOC is an incidental party, only included in the cause of action because Burgos is in its custody. Although IDOC contends it is directly and adversely affected because the trial court ordered it to test Burgos, and presumably pay the related costs, this case is no different from many others where IDOC is required to produce an inmate and must incidentally pay related expenses, for example, producing an inmate in a civil case under a writ of habeas corpus to testify. (735 ILCS 5/10-135 (West 1992); see In re Marriage of Allison (1984), 126 Ill.App.3d 453, 461, 81 Ill.Dec. 610, 616, 467 N.E.2d 310, 316.) We assume that IDOC would prefer to test Burgos itself, rather than produce her for testing at some independent facility outside prison walls. Under section 5-4-1 of the Unified Code of Corrections (730 ILCS 5/5-4-1 (West 1992)), a person convicted of a sexual offense (who will likely be in the custody of IDOC) shall be required to submit specimens of blood to the Illinois Department of State Police. Section 12-18(e) of the Criminal Code of 1961 allows the court to order an HIV test after a finding of probable cause on a sexual assault charge. (720 ILCS 5/12-18(e) (West 1992).) There is no indication that sovereign immunity allows IDOC to prevent testing in these cases. The trial court did not err by refusing to apply the doctrine of sovereign immunity and allowing this cause of action to stand with IDOC as a named party.

IDOC next contends the trial court erred in granting Doe her requested relief because the Act was not effective at the time of the bite and in any event the Act does not require IDOC to test Burgos. The trial court's ruling, however, was not based entirely on the Act:

"Illinois Department of Corrections, is hereby ordered to perform an additional HIV test on Inmate Violetta Burgos. And at least not sticking to the position that the Department's argument is incorrect as to whether or not they have a statutory duty. I am simply ordering that it be done under the authority of the court. And using that authority to convince Inmate Burgos that a judge ordered that this be done regardless of the statute."

In adopting the Act, the legislature found that "[t]he public health will be served by facilitating informed, voluntary and confidential use of tests designed to reveal HIV infection." (410 ILCS 305/2(3) (West 1992).) A reading of the Act indicates a purpose to protect individuals against the casual testing of their blood for the presence of the AIDS virus. For the most part, the Act does not address the drawing of blood. The Act's provision that "[n]o person may order an HIV test" without consent (410 ILCS 305/4 (West 1992)) seems to refer to doctors or lab technicians who might have blood in their possession, with the consent of the patient, and be tempted to run a test on it. The Act shows no purpose to restrict the courts, or the IDOC, from exercising whatever authority they may already have to draw blood from or order medical testing of inmates, without consent. Although the Act may not be an affirmative grant to the IDOC of authority to test inmates, we have no doubt that IDOC possesses broad power to perform medical testing on inmates for any medical conditions, including the presence of HIV antibodies, whenever it deems appropriate. The Act is not the exclusive source of IDOC's power to order testing. See People v. Adams (1992), 149 Ill.2d 331, 339-48, 173 Ill.Dec. 600, 605-09, 597 N.E.2d 574, 579-83; Dunn v. White (10th Cir.1989), 880 F.2d 1188, 1194-97; Johnetta J. v. Municipal Court (1990), 218 Cal.App.3d 1255, 1283-85, 267 Cal.Rptr. 666, 683-85; see generally 134 Ill.2d R. 215.

The Act certainly is no shield for Burgos. Section 7(c) of the Act provides that consent "is not required for a health care provider or health facility to perform a test when a law enforcement officer is involved in the line of duty" with a contact with the blood or bodily fluids of another. (410 ILCS 305/7(c) (West 1992).) The trial court had the authority to order Burgos tested for HIV antibodies.

IDOC contends that its decision not to retest Burgos was reasonable. The medical director of IDOC testified that 95% of persons test positive for HIV antibodies within three months of transmission and at least 99% of persons test positive within six months of...