Krautsack v. Anderson

JUSTICE KARMEIER, dissenting:

Section 10a(c) of the Illinois Consumer Fraud and Deceptive Business Practices Act (Act) provides in relevant part that:

“in any action brought by a person under this Section, the Court may grant injunctive relief where appropriate and may award, in addition to the relief provided in this Section, reasonable attorney’s fees and costs to the prevailing party.” (Emphasis added.) 815 ILCS 505/10a(c) (West 2004).

The majority holds that when the defendant is the prevailing party, the trial court necessarily abuses its discretion in awarding attorney fees and costs absent a finding that the plaintiff acted in bad faith. Because the majority is effectively amending the statute to add a requirement that is not there, I respectfully dissent.

The cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. The best indication of that intent is the language of the statute itself, and where that language is unambiguous, the statute must be enforced as written. Paszkowski v. Metropolitan Water Reclamation District of Greater Chicago, 213 Ill. 2d 1, 6-7 (2004). This court cannot depart from the plain language of the statute by reading into it exceptions, limitations, or conditions not expressed by the legislature. In re Michelle J., 209 Ill. 2d 428, 437 (2004).

The majority acknowledges that nothing in the plain and unambiguous language of section 10a(c) conditions a fee award on a finding that the plaintiff acted in bad faith, but contends that because section 10a(c) does not expressly restrict a trial court’s discretion or identify the circumstances under which a fee petition should be allowed, section 10a(c) must be examined in light of the entire statute to determine whether the trial court’s proper exercise of discretion requires a finding of bad faith on the part of the plaintiff before a prevailing defendant can be awarded costs and fees. 223 Ill. 2d at 556. I submit that the legislature’s failure to include such a requirement in section 10a(c) demonstrates that the legislature did not intend to require a prevailing defendant to demonstrate bad faith on the part of the plaintiff. The majority relies on the rule that when interpreting a statute, a court must give effect to the entire statutory scheme, interpreting words and phrases in light of other relevant portions of the statute. 223 Ill. 2d at 553. However, proper application of this rule does not permit this court to create additional requirements which are not found in the plain and unambiguous text of the statute, but which this court deems necessary to effectuate the statute’s purpose. Although the majority makes a persuasive case as to why section 10a(c) should require a prevailing defendant to demonstrate that the plaintiff acted in bad faith, the legislature chose not to include such a requirement, and it is not the prerogative of this court to correct the legislature’s “omissions.” In re Marriage of Murphy, 203 Ill. 2d 212 (2003). As we recently noted: “This court may not legislate, rewrite or extend legislation. If a statute, as enacted, seems to operate in certain cases unjustly or inappropriately, the appeal must be to the General Assembly, and not to this court.” DeSmet v. County of Rock Island, 219 Ill. 2d 497, 510 (2006). Because the majority is, under the guise of defining the trial court’s proper exercise of its discretion, imposing a limitation on a defendant’s right to costs and fees under section 10a(c) which is not found in the plain and unambiguous language of the statute, I dissent.