FOURTH DIVI SION November 4, 2010

No. 1-09-1747 JANE DOE, ) Appeal from the ) Circuit Court of Plaintiff -Appella nt, ) Co ok Co un ty. ) v. ) ) THE UNIVERSITY OF CHICAGO, ) an Illinois Not-For-Profit Corporation, ) ) Defendant-Appellee ) ) No. 06 L 13017 ) (LONG HAN; VHS of I

llinois, Inc., a Delaware ) Corporation, d/b/a Macneal Hospital; MN ) An es th es ia , a n Il li no is Lim it ed Lia bi li ty C om pa ny; ) Continental Anesthesia, an Illinois L imited ) Lia bi li ty C om pa ny, ) Honorab le ) Jeffrey Lawrence, Defendants). ) Judge Presi ding. JUSTICE O'BRI EN delive

red the o pinion of t

he court : Plaintiff, Jane Doe, appeals the order of the circuit court dismissing count XI I of her sixth-amended complaint against defendant, the University of Chicago, for violations of the Gender Violence Act (740 I LCS 82/1 et seq . (West 2004)) arising out of a sexual assault and battery allege dly committed

by Dr. Long Han o

n Decem ber 15, 2 004. The i ssue on ap peal is whether the Gender Violence Act may be retr oactively applied to c onduct by defe ndant that

occurr ed prior to its eff ective d ate. We ho ld the Gen

der Viole nce Act may not be re troactiv ely applied a nd affir m the circ uit court. In the sixth-amended complaint, plaintiff pleaded that Dr. L ong Han was employ

ed by defendant from 1989 through September 1, 1999, as a n anesthesiologist in the department ofNo. 1-09-1747

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anesthesia and critical care. During the course of Dr. Han's employ ment, defendant learned of at least six allegations of gender-related violenc e committed by Dr. Ha n against female coworkers and patie nts. On Aug

ust 30, 199 9, defen

dant and Dr. Han e

ntered i nto a conf

identiali ty agree ment wher

eby defenda nt secur ed Dr. Ha n's res ignation in retur

n for def endant' s promise i

t would "not provide information regarding complaints of sexual harassment made against [Dr. Han] durin

g the co urse of h is University

employ ment." T he confi dentialit

y a greement also included an agreed-upon letter of reference from defe

ndant to prospective future employ ers of Dr . H an , w hi ch sp ec if

ic al ly o mi ts an y re fe re nc e t o a ll eg at io ns of ge nd er -r el at ed vi ol en ce by Dr. Han a gainst f emale c oworkers and pati ents. Plaintiff pleaded that on or before September 15, 1999, Dr. Ha n applied for appointment to the medical staff of Macneal Hospital. On or about September 15, 1999, the chairman of the credential committee of Macneal Hospital sent a letter to de fendant requesting a candid, written apprais al of Dr. Han's c linical a bility , ethica

l chara cter, a nd his abil ity t

o work co operati

vely with others during his residency . The letter specifically requested any

information defendant may hav e wa rra nt in g Ma cne al H osp it al t o ex erc is e ca ut io n i n gr ant in g st aff pri vi leg es t o Dr . Ha n. In response, defendant sent a letter on or about September 21, 1999, making no reference to any allega tions or investiga

tion into ac

ts of ge nder-r elated violence

committed

by Dr. Han a

gainst female c oworkers and pati ents. Plaintiff pleaded that in either September or October 1999, Macne al Hospital awarded st aff pri vi leg es t o Dr . Ha n, w hi ch h e ma in tai ned th rou gh a nd i ncl udi ng D ece mb er 2 004 . In December 2004, plaintiff was a nursing inter n engaged in an obstetrics rota tion at MacnealNo. 1-09-1747

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Hospital. During the course of her obstetrics rota tion, Macneal Hospital placed plaintiff under the direct supervision of Dr. Han. Plaintiff pleaded that on De cember

15, 2004, Dr. Han a

pproached her a

nd directed her t

o come into his private office at Macneal Hospital, under the pr etext of receiving additional instruction related to her master's studies in nursing. Once inside his office, Dr. Han proceeded to move his hands underneath plaintiff's bra and touch her breasts without her permission or consent. Plaintiff immediately pulled awa y from Dr. Ha

n and exited his office. Plaintiff filed a sixth-amended complaint against Dr. Han, defenda nt, and other entities for dam age s ca use d by D r. H an' s al leg ed s ex ual ass aul t o n De cem ber 15, 200 4. C oun t XII alleged a cause of ac

tion against defendant for violations of the Gender V iolence Act (hereinafter the Act) (740 ILCS 82/1 et seq . (West 2004)). The Act provides victims of "gender -related violence," defined to include acts of sexual assault or batter y, with a private r

ight of action against those who

persona lly c ommitted th e acts of

gende r-rela ted viole nce and against those who encouraged or assisted the ac ts of gender-related violence . 740 IL CS 82/5, 10 (West 2004). Specifically, plaintiff a

lleged in count XII

of her sixth-amended complaint "[o]n and prior to December 15, 2004," defendant e ncouraged or assisted Dr. Han' s acts of gender-relate d violence in one or more of the followi ng resp ects: a. covering up allegations of Dr . Han's repeated acts of gender-related violence by enterin g into the confide ntiality agree ment with Dr. Han; b. failing to disclose to Macneal Hospital its knowledge of at lea st six allegations of gen der-re lated vio lence c ommitted by Dr. Han;No. 1-09-1747

-4- c. failing to discipline or sanction Dr. Han for ac ts of gender-related violence against female

coworke rs and pa tients; d. failing to insist Dr. Han receive treatment as a precondition of further employ ment; e. emb olden ing Dr. Han wi th a be lief h is gend er-rel ated v iolen ce woul d go unpunished and could continue; and f. securing Dr. Han' s resignation from defendant in exchange for nondisclosure of repeated complaints of sexual assault and battery of female employ

ees and patients by

Dr. Han. Defend ant filed a motion to d

ismiss purs

uant to se ction 2-6 19 of the C ode of Civil Procedure (735 IL

CS 5/2-619 (West 2002)). Defendant argued count XII of plaintiff's sixthamended complaint sought an impermissible retroactive applica tion of the Act to defendant. Specific ally , defend

ant conte nded all i ts alleg ed acts i

n violation

of the Act (in part

icular, its entering into the confidentiality agreement with Dr. Han and fa iling to disclose to Macneal Hospital its knowledge of six allegations of gender-related violence committed by Dr. Han) occurred in 1999 prior to the Act's eff ective date of January

1, 2004. The circuit court granted defenda nt's motion to dismiss a

nd made the requis ite findin g pursuant to Supr

eme Court

Rule 304(a) (210 Ill. 2d R. 304(a)) that no just cause existed to delay either e nforcement or appeal of the orde r. Plaintif

f filed th is timely appeal. A section 2-619 motion to dismiss admits the legal sufficiency of the complaint and raises defects, defenses, or other aff irmative matters that appear on the face of the complaint or areNo. 1-09-1747

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established by external submissions that act to defea t the claim. Krilich v. American National Bank & Tr ust C o. of C hicago , 334 Ill. App. 3d 563, 569-70 (2002). When ruling on a se ction 2-619 motion, the circuit court may c onsider the pleadings, depositions, and affidavits. Krilich , 334 Ill. App. 3d at 570. The court interpre ts all pleadings and supporting documents in the light most favorable to the nonmoving party

. Van Meter v. Darien Park District , 207 Ill. 2d 359, 367- 68 (2003). The issue on appeal is whether the existence of a g enuine issue of material fact should have precl

uded the d

ismissal or , absent s

uch an iss ue of fa ct, whether the di smissal is proper as a matter of law. Krilich , 334 I ll. App. 3d at 570. Re

view is de novo . Krilich , 334 I ll. App. 3d at 571. In the present case , the circuit court dismissed count XII of plaintiff's sixth-amended complaint on the basis that the complained-of conduct occurred pr ior to the effective date of the Act. T he circ uit co urt de termi ned th e Act m ay not be re troact ively app lied t o defen dant's conduct predating the Act. Plaintiff contends the circ uit court erred in its retroactivity analysis. In Commonwealth Edison Co. v. Will County Collector , 196 Ill. 2d 27 (2001), our supreme court adopted the retroactivity analysis of Land

graf v . USI F ilm Produc ts , 511 U.S. 244, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994). The supreme court re cently summarized the Landgra f test as fo llows: " ' The threshold inquiry

is whether the legislature has expressly prescribed the temporal reach of a statute. I f it has, the expression of legislative intent must be given e ffect absent a constitutional prohibition . If, however, the sta tute contains no express provision regarding its temporal reac h, the court must determineNo. 1-09-1747

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whether the new statute would have retroac tive effect, keeping in mind the ge neral principle that pros pectivity is the appropriate

default rule. I n making this determination, a court will consider whether retroac tive application of the new statute will impair r

ights a p arty

possesse d when ac

ting, inc rease a party 's liabi lity for past conduct, or impose new duties with respect to transactions alre ady complete d. If

retrosp ective a

pplication of the ne

w law has inequita ble consequences, a court will presume that the statute does not g overn absent clear legislative intent favoring such a result.' " (Emphasis in original.) Lazenby v. Mark's Construction, Inc. , 236 Ill . 2d 83 , 94-9 5 (201 0), qu otin g John Doe A. v. Diocese of Dallas , 234 Ill. 2d 393, 405 (2009). Following the adoption of the Landgra f approach, the supreme court considere d the effect of sectio n 4 of the St

atute on St

atutes (5 IL CS 70/4 (West 1998)) on

the retr oactivity analy sis. Section 4, also know

n as the g eneral

saving c lause of

Illinois, state s: "No new law shall be construed to repea l a former law, whether such former law is expressly r

epealed or not, as to any

offense committed against the former law, or as to any

act done, any

penalty, forf

eiture or punishment incurred, or any rig ht accrued, or claim arising under the former law, or in any

way wh at ev er to af

fe ct an y su ch of

fe ns e o r a ct so co mm it te d o r d on e, or an y pe na lt y, forfeiture or punishment so incurred, or any right accrued, or claim arising before the new la

w takes e ffect, save only

that the proceed

ings the reafte r shall conform, so far a s practic able, to t

he laws in

force a t the time o f such pr

oceedin g." 5 I LCSNo. 1-09-1747

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70/4 (West 2006). The supreme court held "section 4 is a clea r legislative directive as to the temporal rea ch of statutory amendments a nd repeals when none is otherwise specified: those that ar e procedural may be applied retroact ively, while thos e that are subs tantive may not." Doe , 234 Ill. 2d at 406. In the present case , Public Act 93-416 enacted the Gender Violence Act with an effective date of Ja nuary 1, 2004. Se ction 98 of

Public Ac t 93-416 pr

ovides: "Applicability. This Act a pplies only to causes of a ction accruing on or after its effective date." Public Act 93- 416 § 98, eff. January 1, 2004. Plaintiff contends section 98 unambiguously indicates the temporal reach of the Act, i.e. , it applies to causes of action accruing on or a fter January 1, 2004. Plaintiff fur ther contends her cause of action accrued at the time Dr . Han allegedly assaulted her in December 2004, which was well after the January

1, 2004, effective date of the Act. Acc ordingly, plaintiff c ontends she has stated a valid claim under the Act and the circuit court e rred in dismissing her cause of action against defendant. The primary r

ule of statutory construction is to ascertain and give effect to the true intent of the legislature. Augustus v. Estate of Somers , 278 Ill. App. 3d 90, 97 (1996). I n determining legislative intent, a court should consider the statutory language first, giving

the terms of the statute their ordinary

meaning. MQ Construction Co. v. Intercarg o Insurance Co. , 318 Ill. App. 3d 673, 681 (2000). Where the language of the statute is clear, it will be given effect without resort to other aids for construction. Augustus , 278 Ill. App. 3d at 97. Beca use the construction of a statu te is a que stion of la

w, our re view is de novo . O'L oughlin v . Villag e of River Forest ,No. 1-09-1747

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338 Ill. App. 3d 189, 191 (2003). Our review of section 98 indicates it provides a necessary condition for filing suit under the Act, specifically , the cause of action must have accrue d on or after the effective date of January 1, 2004. Howeve r, section 98 does not provide that an accrual date a fter January 1, 2004, is sufficient , in and of itself, to allow the filing of a suit under the Act. Section 98 does not address the issue here, whether suit may be filed under the Act when the accr ual date is after January 1, 2004, bu

t the acts allege dly violating the Act ( such as defendant's entering into the confidentiality ag

reement with Dr. Han and failing to disclose Dr. H an's misconduct to Macneal Hospital) occurred prior to January 1, 2004. Section 98 is silent as to the temporal reach of the Act under these circumstances. In the absence of

an express provision regarding the Act' s temporal reach, we examine whether the Act is substantive or procedural in nature. I f the Act is substantive, it may not be retroactively

applied. Deicke Center-Marklund Children's Home v. I llinois Health Facilities Planning Board , 389 Ill. App. 3d 300, 303 (2009). I f the Act is procedural in nature, it may be applied retroactively

as long as such retroactive application will not impair rig hts defendant possesse d when ac

ting, inc rease d efenda nt's lia bility for past conduct, or impose

new dutie s with respect to transactions already completed. Deicke Center , 389 I ll. App. 3d at 303; John Doe , 234 Ill. 2d at 405. " 'Pro cedure

is the mac

hinery for car ry ing on the suit, inclu

ding ple ading, process , evidence and practice, whether in the trial court, or in the processes by which causes are carried to the appel late courts for review, or l aying the foundation for such revie w.' " Deicke Center , 389No. 1-09-1747

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Ill. App . 3d at 303, q uoti ng Ogdon v. Gianakos , 415 Ill. 591, 596 (1953). By contrast, a substant ive act "establ ishes, creat es or defines r ights." Deicke Center , 389 Ill. App. 3d at 304. Clearly, the Act is substantive in nature as it creates a new, private rig ht of action for the victims of gender-related violence. T he retroactive application of the Act would cre ate a new liability for conduct committed by defendant prior to the Act's effe ctive date of January 1, 2004. As such, retroactive application of the Act is improper. We aff irm the order of the circuit court dismissing

count XI I of p laintiff

's sixth-a mended c omplaint. Plaintiff contends her cause of action should not be dismissed because her suit seeks recovery for defendant's continued silence, c overing up, and emboldening of Dr. Ha n throughout 2004. Revi ew of pla

intiff' s sixth-ame

nded comp laint indic ates all o f defen dant's a lleged ly unlawful acts occurred in 1999, prior to the effe ctive date of the Act, when it signed the confidentiality ag

reement, failed to discipline Dr. Han or insist he receive treatment, and failed to discuss Dr. Han's misconduct with Macneal Hospital. Plaintiff has failed to asser t any tortious acts by def

endant beyond the

effective date of the Act that would support a cla im thereunder. For the f orego ing rea sons, we a

ffirm the circuit c ourt. Affirmed. O'BRIEN, J ., wit h O'MAR A FROS SARD , J., and LAVIN, J ., con curri ng.