Moore v. Green

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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