NO. 4-02-0527

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUN

CIL 31; DON TODD; LARRY BOMKE; and

NORLAN and ELEANOR NEWMISTER,

		Plaintiffs-Appellees,

		v.

GEORGE RYAN, in His Capacity as Gover

nor of the State of Illinois, and LIN

DA RENEE BAKER, in Her Capacity as

Secretary of the Illinois Department

of Human Services,

		Defendants-Appellants,

		and

JUDY BAAR TOPINKA, in Her Capacity as

Treasurer of the State of Illinois,

and DANIEL HYNES, in His Capacity as

Comptroller of the State of Illinois,

		Defendants.	)

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)	Appeal from

Circuit Court of

Logan County

No. 02CH1

Honorable

Donald A. Behle,

Judge Presiding.

_________________________________________________________________

		JUSTICE STEIGMANN delivered the opinion of the court:

		In January 2002, the American Federation of State,

County, and Municipal Employees, Council 31 (AFSCME), Don Todd,

Larry Bomke, and Norlan and Eleanor Newmister (plaintiffs), filed a complaint for declaratory and injunctive relief against George

Ryan, Governor of the State of Illinois, and Linda Renee Baker,

Secretary of the Illinois Department of Human Services (defen

dants), as well as Judy Baar Topinka, Treasurer of the State of

Illinois, and Daniel Hynes, Comptroller of the State of Illinois, to stop defendants' plans to close the Lincoln Developmental

Center (Center).

		In July 2002, the trial court issued a temporary

restraining order prohibiting defendants from involuntarily transferring residents out of the Center until the Health Facili

ties Planning Board (Planning Board) has acted upon defendants'

application for a permit to close the Center.  Defendants filed a petition for interlocutory review, arguing that the temporary

restraining order should be reversed on the following grounds: 

(1) the trial court lacks jurisdiction to modify a judgment on

appeal; (2) the temporary restraining order violates separation

of powers; (3) the temporary restraining order violates sovereign

immunity; (4) no verified complaint pleads facts demonstrating a

right to injunctive relief; (5) the Illinois Health Facilities

Planning Act (Planning Act) (20 ILCS 3960/1 through 19.6 (West

2000)) was not intended to control the day-to-day operations of a health-care facility; (6) plaintiffs failed to exhaust adminis trative remedies; (7) plaintiffs lack standing to sue; (8) the

Planning Act does not expressly or impliedly create a private right of action; and (9) private persons are not authorized to

seek injunctive relief to enforce the permit requirements of the Planning Act.  Because we agree with the last argument, we reverse the temporary restraining order and remand.

		I. BACKGROUND

		The Center is 1 of 11 State-operated facilities for the

developmentally disabled in Illinois.  These facilities generally

serve as a placement of "last resort" for developmentally dis

abled individuals whose needs are unmet by private providers. 

The Office of Developmental Disabilities manages the Center as

part of the Illinois Department of Human Services.

	A. Downsizing and Closure Plans

		In September 2001, the Illinois Department of Public

Health completed a survey of the Center and found it to be out of

compliance with several conditions of participation in the

Medicaid program, jeopardizing federal financial participation. 

The survey identified deficiencies in client protections (failure

to insure the health, safety, and well-being of residents),

active treatment (failure to provide a continuous, aggressive

series of services), governing body (failure to follow own

policies and procedures), and staffing.  At that time, the Center

had 372 residents.

		In October 2001, Governor Ryan's office issued a press

release describing a plan to improve the Center's operations, in

part by transferring 90 residents to other placements.  In

November 2001, the Illinois Department of Public Aid and the

Illinois Department of Public Health issued a notice of intent to

decertify the Center from participation in Medicaid.  In December

2001, Governor Ryan visited the Center and ordered the Center to

close its Coty building and transfer 42 more residents.  In

January 2002, the Governor Ryan's office directed Secretary Baker

to develop two alternative plans to either close or downsize the

Center.

		In February 2002, Governor Ryan decided to downsize the

Center to 100 residents.  At that time, the Center had 259

residents.  The Center would transfer the residents either to

other State-operated facilities or to State-funded private providers.  Funding existed to build four group homes at the

Center within the next year to accommodate a total of 40 resi

dents.  Six more cottages were planned to accommodate the remain

ing 60 residents so that the existing buildings at the Center

could be closed.

		In March 2002, after consultation with federal regula

tors, the Illinois Department of Human Services, the Illinois

Department of Public Aid, and the Illinois Department of Public

Health agreed to voluntarily reduce the Center's population to

100 residents.  The administrative proceedings to decertify the

Center would be terminated, and after June 30, 2002, a single,

full certification survey would be conducted with no further

right to hearing, administrative review, or appeal.

		In June 2002, Governor Ryan announced a decision to

close the Center, and Secretary Baker filed an application with

the Planning Board to obtain a permit to close the Center.  The first stage of the closure plan involved transferring 51 resi

dents from the Center during the first week of July.

	B. Court Proceedings

		In January 2002, plaintiffs filed a two-count complaint

against defendants to prevent them from closing the Center.

AFSCME is a labor organization that represents a majority of the

Center's staff.  Todd is president of AFSCME Local 425 and an

employee of the Center.  State Senator Bomke represents the 55th

Senatorial District.  The Newmisters are legal guardians of their

son, Melvin, who has resided at the Center for 30 years.  Count I of the complaint sought a declaratory judgment and a writ of

mandamus to require defendants to honor the fiscal year 2002 appropriations law and spend money to keep the Center open. 

Count II sought an injunction restraining defendants from closing

the Center until they have received a permit from the Planning

Board.  Plaintiffs filed a motion for a temporary restraining

order, which the trial court denied.  In February 2002, defen

dants filed a motion to dismiss.  The trial court dismissed count

I and granted plaintiffs leave to refile.

		In March 2002, plaintiffs filed a two-count amended complaint setting forth the same causes of action as the original

complaint.  Plaintiffs filed a motion for preliminary injunction. 

In April 2002, the trial court entered a preliminary injunction, requiring defendants to apply for a permit from the Planning

Board prior to proceeding with any plans to downsize the Center.  Defendants filed an interlocutory appeal, which we docketed as

No. 4-02-0390.  Following Secretary Baker's application for a

permit from the Planning Board, we dismissed the appeal as moot. 

American Federation of State, County & Municipal Employees, Council 31 v. Ryan, No. 4-02-0390 (July 2, 2002) (unpublished summary order under Supreme Court Rule 23(c)(3)).

		In June 2002, plaintiffs filed a motion for a temporary

restraining order.  In July 2002, the trial court granted plain

tiffs' motion and prohibited defendants from involuntarily

transferring any residents from the Center until the Planning

Board has approved the application for a permit to close the Center.  This appeal followed.

	II. ANALYSIS

	A. Standard of Review

		Review of a temporary restraining order is limited to

determining whether the trial court abused its discretion. 

Northwestern Steel & Wire Co. v. Industrial Comm'n, 254 Ill. App. 3d 472, 476, 627 N.E.2d 71, 74 (1993).  Ordinarily, substantive

issues in the case can be considered only to the extent necessary

to determine whether the trial court abused its discretion. 

Northwestern Steel, 254 Ill. App. 3d at 476, 627 N.E.2d at 74.  However, when a trial court grants temporary injunctive relief,

the reviewing court may also examine whether the plaintiff's

complaint is sufficient to sustain an injunction (Strata Market ing, Inc. v. Murphy, 317 Ill. App. 3d 1054, 1062, 740 N.E.2d 1166, 1172 (2000)), as the right to injunctive relief necessarily

brings into question the sufficiency of the complaint (Olympic Federal v. Witney Development Co., 113 Ill. App. 3d 981, 984, 447 N.E.2d 1371, 1373 (1983)).

	B. Planning Act

		The Center qualifies as a "hospital" under the Planning

Board's regulations (77 Ill. Adm. Code §1100.220 (Conway Greene

CD-ROM June 2002)) because it is a State-operated facility

utilized for the treatment of physical and mental ills.  A

"hospital" is within the scope of the Planning Act's definition

of "health[-]care facility" (20 ILCS 3960/3 (West 2000)).

		The purpose of the Planning Act is to "establish a procedure designed to reverse the trends of increasing costs of

health care resulting from unnecessary construction or modifica

tion of health[-]care facilities."  20 ILCS 3960/2 (West 2000). 

In furtherance of this purpose, section 4 of the Planning Act (20

ILCS 3960/4 (West 2000)) creates the Planning Board and governs its duties and functions.  Section 5 of the Planning Act (20 ILCS

3960/5 (West 2000)) provides that no person may construct or modify a health-care facility without first obtaining a permit

from the Planning Board.

		The Planning Act contains investigatory and enforcement

provisions.  The Planning Board or the Illinois Department of

Public Health may investigate permitless construction or modifi

cation of a health-care facility.  20 ILCS 3960/13 (West 2000).  Any person constructing or modifying a health-care facility

without a permit is guilty of a business offense and may be fined

up to $25,000.  20 ILCS 3960/14 (West 2000).  The Planning Board is also authorized to impose fines.  20 ILCS 3960/14.1 (West

2000).  Further, section 15 of the Planning Act (20 ILCS 3960/15

(West 2000)) provides:

			"Notwithstanding the existence or pur

suit of any other remedy, the [Planning

Board] or the [Illinois Department of Public

Health] may, in the manner provided by law,

upon the advice of the Attorney General who shall represent the [Planning Board] or the [Illinois Department of Public Health] in the proceedings, maintain an action in the name of the State for injunction or other process against any person or governmental unit to restrain or prevent the acquisition of major medical equipment, or the establishment,

construction or modification of a health[-] care facility without the required permit, or to restrain or prevent the occupancy or uti

lization of the equipment acquired or facil

ity which was constructed or modified without

the required permit."  (Emphases added.)

		The General Assembly has expressly limited the exercise of home-rule power under the Planning Act.  Section 17 of the

Planning Act (20 ILCS 3960/17 (West 2000)) states:

			"It is hereby specifically declared that

the powers and functions exercised and per formed by the State pursuant to this Act are exclusive to the State of Illinois and that these powers and functions shall not be exer

cised, either independently or concurrently,

by any home[-]rule unit."  (Emphasis added.)

	C. Temporary Restraining Order

		Defendants argue that the temporary restraining order

should be reversed because private persons are not authorized to

seek injunctive relief to enforce the permit requirements of the Planning Act.  We agree because, under section 17 of the Planning Act (20 ILCS 3960/17 (West 2000)), the General Assembly intended to grant the State exclusive enforcement powers. 

		A court's primary function in interpreting a statute is to determine and give effect to the legislature's intent in

enacting the statute, and legislative intent is best determined

by the language of the statute.  People v. Ferrell, 277 Ill. App. 3d 74, 77, 659 N.E.2d 992, 995 (1995).  A court construing a statute should read it as a whole and give the statutory language

its plain meaning.  Ferrell, 277 Ill. App. 3d at 77, 659 N.E.2d at 995.  A statute should be construed, if possible, so that no term is rendered superfluous or meaningless.  Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 270, 695 N.E.2d 481, 485 (1998).

		Reading the Planning Act as a whole, the plain meaning

of sections 15 and 17 of the Planning Act confers upon the State

the exclusive power to enforce compliance with the Planning Act's

permit requirements.  Included within this exclusive enforcement

power is the ability of the Planning Board or the Illinois

Department of Public Health to maintain an action in the name of

the State for injunction to restrain the construction or modifi

cation of a health-care facility without the required permit. 

See 20 ILCS 3960/15 (West 2000).

		Contrary to plaintiffs' arguments, section 15 of the Planning Act does not contemplate private lawsuits to enforce the

Planning Act's permit requirements.  Instead, plaintiffs' inter

pretation would render superfluous the requirement in section 15 that the Planning Board or the Illinois Department of Public

Health proceed on the advice of the Attorney General, who shall

represent them in the proceedings.  The language in section 15, "[n]otwithstanding the existence or pursuit of any other remedy"

(20 ILCS 3960/15 (West 2000)), merely enables the Planning Board or the Illinois Department of Public Health to obtain injunctive

relief as an additional remedy.

		We recognize that, ordinarily, injunctive relief is

proper to prevent public officials from taking actions that are

outside the scope of their authority or unlawful.  See Village of Westmont v. Lenihan, 301 Ill. App. 3d 1050, 1060, 704 N.E.2d 891, 898 (1998).  However, in this case, the plain language of sec tions 15 and 17 of the Planning Act clearly preempts plaintiffs

from seeking to enjoin defendants to comply with the Planning

Act's permit requirements, as enforcement of the Planning Act is an exclusive power of the State.

		The trial court abused its discretion in entering the temporary restraining order because plaintiffs' complaint is insufficient to support their request for temporary injunctive

relief.  As a result of our holding, we need not address defen

dants' remaining arguments.

  		III. CONCLUSION

		For the reasons stated, we reverse the temporary

restraining order issued and remand for further proceedings.

		Reversed and remanded.

		APPLETON, J., specially concurs.

		MYERSCOUGH, J., dissents.

		JUSTICE APPLETON, specially concurring:

		While I concur with the majority opinion that there is

no private right of action for an alleged violation of the

Planning Act, I write separately to express my belief that each

of the plaintiffs lack standing.

		For a party to have standing to sue, that party must be

the subject of actual or threatened injury in fact to a legally

cognizable interest.  Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 492-93, 524 N.E.2d 561, 574-75 (1988).  Plaintiffs have alleged defendants' noncompliance with

the Planning Act, the purpose of which has been set forth above.

		The legally cognizable interest of AFCSME Council 31

and Don Todd is determined by their contract of employment with

the State of Illinois.  That contract guarantees the union's

members certain rates of compensation and compliance with work

place rules such as seniority and benefits of employment.  It has

not been alleged, nor can it be, that the union contract guaran

tees employment in a site-specific facility in perpetuity.  As a

logical consequence, these plaintiffs have no legally cognizable

interest in maintaining either the size (population) or existence

of a particular developmental disability treatment facility.

		Plaintiff Larry Bomke is an Illinois state senator who

represents a portion of the Logan County community.  It is

immaterial whether he voted in the legislature for or against

funding for the Center.  He has no legally cognizable interest

that was damaged by defendants' actions.  Mere disagreement with the governor's decisions do not give one standing to sue.

		As for Norlan and Eleanor Newmister, any injury in fact

to them, while more sympathetic, is also lacking.  Plaintiffs

currently allege that the Department of Health and Human Services

is in the process of transferring residents of the developmental

center to other facilities before the Planning Board has issued a

permit allowing them to do so.  No allegation is made that the

Newmisters' son is part of that group.  As for the closure of the

facility, no common-law or statutory right accrues to any party

to prevent closure, only a process of review and permit to

regulate such actions.  

		In recent years, the State of Illinois has closed

numerous mental health facilities, driver's service facilities,

correctional facilities, and other such institutions.  Each such

closure involved dislocation of employees, an inconvenience to

the population served, and diminution in the ready availability

of service to the location of the abandoned site.  Yet a recipi

ent of state services has no legally cognizable interest in

maintaining a site-specific location of such services.

		While there is some authority that a statutory viola

tion grants standing to anyone arguably within the zone of

interests sought to be protected by the statute in question

(Ass'n of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 25 L. Ed. 2d 184, 188, 90 S. Ct. 827, 830

(1970)), our supreme court has expressly deleted the zone-of-

interest test for standing from Illinois jurisprudence (Greer, 122 Ill. 2d at 492, 524 N.E.2d at 574).  Greer reversed, sub silentio, the use of the zone-of-interest test adopted by the First District in Cottage-63rd Street Currency Exchange, Inc. v. Callahan, 104 Ill. App. 3d 586, 589, 432 N.E.2d 1258, 1260 (1982) (where injury arises from violation of a statute, standing

requires plaintiff to be one of a class designed to be protected

by the statute).

		Without reference to a zone of interest created by the

Planning Act, plaintiffs have no standing because they have no

legally cognizable interest which has been damaged by the actions

alleged to have been committed by these defendants in violation

of the Act.

		JUSTICE MYERSCOUGH, dissenting:

		I respectfully dissent.  The Planning Act does not

clearly preempt the plaintiff’s private right of action.  The

Planning Act creates a specific right for the Planning Board or

agency to seek an injunction prohibiting modification without a

permit, but also specifically recognizes the existence or pursuit

of other remedies:

			“Notwithstanding the existence or pur

suit of any other remedy, the State Board or

the Agency may, in the manner provided by

law, upon the advice of the Attorney General

who shall represent the State Board or the

Agency in the proceedings, maintain an action

in the name of the State for injunction or

other process against any person or govern

mental unit to restrain or prevent the acqui

sition of major medical equipment, or the

establishment, construction[,] or modifica

tion of a health[-]care facility without the

required permit, or to restrain or prevent

the occupancy or utilization of the equipment

acquired or facility which was constructed or

modified without the required permit.”  20

ILCS 3960/15 (West 2000)

		The Planning Act concededly declares the powers and

functions exercised and performed by the State to be exclusive to the State and specifically prohibits home-rule units from exer

cising those powers and functions:

			“It is hereby specifically declared that

the powers and functions exercised and per

formed by the State pursuant to this [Plan

ning] Act are exclusive to the State of Illi

nois and that these powers and functions

shall not be exercised, either independently

or concurrently, by any home[-]rule unit.” 

20 ILCS 3960/17 (West 2000).

		However, nowhere does the Act prevent anyone, even a

home-rule unit, from maintaining an action for injunction to

require compliance with the Planning Act.  This section merely

limits the use of the Planning Act’s regulatory powers to the

State, not home-rule units.  Clearly, Section 17 creates exclu

sivity of the Planning Board’s and Illinois Department of Public

Health’s  powers and duties as set forth in Section 12 (powers

and duties of the Planning Board) and Section 12.2 (powers of the

agency).  In other words, the City of Lincoln cannot regulate

health-care facilities in the manner set forth in the Planning

Act.  But, certainly, any individuals harmed by a failure to

comply with the Planning Act may sue for an injunction and

compliance with the Planning Act.  

		The Planning Act obviously contemplated a private right

of action for individuals adversely affected by decisions of the

Planning Board:

			“Any person who is adversely affected by

a final decision of the Planning Board may

have such decision judicially reviewed.  The

provisions of the Administrative Review Law,

as now or hereafter amended, and the rules

adopted pursuant thereto shall apply to and

govern all proceedings for the judicial re

view of final administrative decisions of the

[Planning] Board.  The term 'administrative

decisions' is as defined in Section 3-101 of

the Code of Civil Procedure.”  20 ILCS

3960/11 (West 2000).

		Surely, if a prisoner can sue for mandamus to ensure the Department of Corrections' (DOC's) compliance with DOC

administrative rules governing grievance procedures, the guard

ians of residents at the Lincoln Deveoplopemental mental Lincoln Developmental Center can sue for compliance with the closure proceedings set forth in the Planning

Act.  Moreover, since plaintiffs here are seeking to force public officials to comply with the law and are not seeking tort damages

they are, therefore, entitled to request injunctive relief. 

Reversal is, therefore, not warranted, because the plaintiff’s'

clearly have a private right of action.  See Noyola v. Board of Education, 179 Ill. 2d 121, 688 N.E.2d 81 (1997) (Plaintiff’s' seeking to force the public officials to do what the law requires

may proceed by mandamus to compel them to do so).

		As quoted above, the Planning Act creates public rights which may be enforced by those affected by its decisions.  20

ILCS 3960/11 (West 2000).  Additionally, the purpose of the

Planning Act is to “improve the financial ability of the public

to obtain necessary health services, and to establish an orderly

and comprehensive health[-]care delivery system which will

guarantee the availability of quality health care to the general

public.”  20 ILCS 3960/2 (West 2000).  The public is the stated

intended beneficiary of the Planning Act, and clearly the plain

tiffs here have standing to sue.

		As members of the public, these plaintiffs have a

protectible interest in ensuring that public officials follow the

requirements of public statutes.  Local 1894 v. Holsapple, 201 Ill. App. 3d 1040, 1049, 559 N.E.2d 577, 583 (1990);, Hill v. Butler, 107 Ill. App. 3d 721, 725, 437 N.E.2d 1307, 1311 (1982) (Citizens have right to bring mandamus action to enforce public rights set forth in statute).  Moreover, these guardians of

residents and employees of the facility clearly have standing to

sue for the defendant’s' alleged contravention of a clearly

mandated public policy and statutory procedure.

	Finally, the trial court did not abuse its discretion in issuing this injunction.  I would affirm and remand.