Illinois Court of Appeals issued ruling on sovereign immunity regarding reinstatement of license

  (Credit: Katherine Johnson,Wikipedia)   The Court of Appeals of Illinois, in an August 25, 2023 decision, rejected arguments from the State’s D of Financial and Professional Regulation and agreed that the exception to the sovereign immunity doctrine for actions “seeking to enjoin state officers from engaging in conduct exceeding their statutory authority applies…”

In this matter, a medical professional sought reinstatement of a medical license.  During the reinstatement hearing a therapist who had provided case management services to the medical professional was called as a witness.  During the witness’s testimony, he revealed the existence of personal notes kept as part of providing mental health services to the medical professional.    When required by the Administrative Law Judge during the hearing to provide the notes, the witness, medical professional, and Professional Health Program, sought protective relief by the Circuit Court arguing that the personal therapy notes were protected. The Circuit Court issued the protective relief requested agreeing that the therapist’s personal notes were confidential work product as defined under the Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act/ (740 ILCS 110/1 et seq. (West 2020)).    Additionally, the Department was ordered to pay attorney’s fees and costs pursuant to § 15 of the Act and “such other and further relief that the Court deem[ed] just, including but not limited to, an in-camera inspection.”

Upon appeal, the Department did not dispute the underlying facts; rather, the Department’s sole claim of relief and cause of appeal was the contention by the Department that the award of fees and costs by the Circuit Court was not permitted by the protection offered by sovereign immunity. The Department contended that the Circuit Court lacked subject matter jurisdiction to enter such an award for fees and costs.  Although raised for the first time, the Illinois “Supreme Court has held that sovereign immunity, which implicates the court’s subject matter jurisdiction, may be raised at any time.” (Currie v. Lao, 148 Ill.2d 151, 157 (1992)).

Sovereign immunity is a common law doctrine that protects the government from being sued without its consent.  (Jackson v. Alverez, 358 Ill. App. 3d 555, 559 (2005)).  However, in this instance, the Court held that sovereign immunity would not apply here as the “fees and the costs are ancillary to injunctive relief” and relied upon the US Supreme Court analysis that “attorney fees expended to obtain injunctive relief are properly characterized as ancillary to that prospective injunctive relief rather than as a separate award of monetary damages.”  (Missouri v. Jenkins by Agyei, 491 U.S. 274, 278 (1989)).

The award of fees and costs were affirmed.