Board of Trustees of Community College Dist. No. 508 v. Bakalis, 77-1406

• Court: Appellate Court of Illinois
• Writing for the Court: LORENZ; SULLIVAN, P. J., and WILSON
• Citation: Board of Trustees of Community College Dist. No. 508 v. Bakalis, 382 N.E.2d 26, 64 Ill.App.3d 967, 21 Ill.Dec. 732 (Ill. App. 1978)
• Decision Date: 15 September 1978
• Docket Number: No. 77-1406,77-1406
• Parties: , 21 Ill.Dec. 732 BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 508, Plaintiff-Appellee, v. Michael J. BAKALIS, Comptroller of the State of Illinois, Theodore Puckorious, Director of Department of Administrative Services of the State of Illinois, and Illinois Community College Board, Hugh D. Hammerslag, Tousaint L. Hale, Jr., Frank F. Fowle, Paul B. Hanks, Vivian Medak, James W. Sanders, Sharon Sharp, Lila B. Teer, John Goudy, Dennis W. Truelsen, members, Defendants-Appellants.

Page 26

382 N.E.2d 26

64 Ill.App.3d 967, 21 Ill.Dec. 732

BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 508 Plaintiff-Appellee, v. Michael J. BAKALIS, Comptroller of the State of Illinois Theodore Puckorious, Director of Department of Administrative Services of the State of Illinois, and Illinois Community College Board, Hugh D. Hammerslag Tousaint L. Hale, Jr., Frank F. Fowle, Paul B. Hanks, Vivian Medak, James W. Sanders, Sharon Sharp, Lila B. Teer, John Goudy, Dennis W. Truelsen, members, Defendants-Appellants.

No. 77-1406.

Appellate Court of Illinois, First District, Fifth Division.

Sept. 15, 1978.

William J. Scott, Atty. Gen. of the State of Illinois, Chicago, for defendants-appellants; Karen Konieczny, Asst. Atty. Gen., Chicago, of counsel.

Arvey, Hodes, Costello & Burman, Chicago, for plaintiff-appellee; George L. Siegel, Irwin I. Zatz, Chicago, of counsel.

LORENZ, Justice.

Defendants filed this interlocutory appeal from an order directing them to deposit the sum of $2,502,538.77 with the clerk of the circuit court, to be held until further order. On appeal, defendants contend that the court abused its discretion in entering the order because: (1) the circuit court lacked the jurisdiction needed to entertain the action; (2) the order failed to meet specific statutory requirements; and (3) plaintiff failed to sufficiently establish the necessity of the remedy.

The following facts are pertinent to the disposition of this appeal.

On September 26, 1977, plaintiff filed a verified complaint alleging that it was a body politic and corporate organized under the Public Community College Act. (Ill.Rev.Stat. 1977, ch. 122, par. 101-1 Et seq.) Section 2-16 of that Act (Ill.Rev.Stat. 1977, ch. 122, par. 102-16) provides in part:

"Any community college district which maintains a community college recognized by the State Board is entitled to claim a credit hour grant for all instructional categories, the average of which is not less that $17.61 for each semester hour or equivalent in a course carried through each midterm by each student in attendance who is a resident of Illinois and such other special grants as may be authorized by the General Assembly.

Upon approval of any claim under this Section, the State Board shall prepare and certify to the State Comptroller the report of claims for community college grants and vouchers setting forth the money due each such district within 45 days from the receipt of such claims. The Comptroller shall cause his warrants to be drawn for the respective amounts due, payable to each community college district, within 15 days following the receipt of such vouchers."

Plaintiff's complaint further alleged, Inter alia, that pursuant to section 2-16, it had timely and properly filed its claims for reimbursement for money spent on teaching programs in fiscal 1976 and 1977; that defendant Illinois Community College Board had approved plaintiff's claims for payment in the sum total of $2,502,538.77; that funds to pay said claims had been appropriated and were available for disbursement; that defendant College Board, contrary to the requirements of section 2-16, had forwarded the approved vouchers for the payment of plaintiff's claims to defendant Illinois Department of Administrative Services which refused to permit funds to pay the claims to be disbursed; that unless $2,502,538.77 is deposited in escrow with the clerk of the circuit court prior to September 30, 1977, said funds will revert to the general treasury and be lost forever to plaintiff; and that unless said funds are paid to the plaintiff, it will be forced to close down the City Colleges of Chicago for lack of funds. Plaintiff's complaint therefore prayed that a preliminary mandatory order be issued directing defendants to deposit $2,502,538.77 with the clerk of the circuit court subject to further order, and that upon final hearing, a writ of mandamus issue ordering defendants to pay that sum to plaintiff.

A hearing was held on September 27, 1977, an order was entered and a second hearing was held on September 28. Following this hearing the court entered an order which superseded the earlier order, directed defendant Michael J. Bakalis, Comptroller of the State of Illinois, and Theodore Puckorious, Director of the Department of Administrative Services of the State of Illinois, to take all steps necessary to cause the deposit not later than September 29, 1977, of the sum of $2,502,538.77 with the clerk of the circuit court, to be held pursuant to further order and, to facilitate such payments, directed defendant Illinois Community College Board to prepare all necessary vouchers and other papers setting forth the authorization and approval for the payment of the sum of $2,502,538.77 to the plaintiff, and deliver the same to the Comptroller of the State of Illinois. Following the entry of this order, defendants filed their notice of interlocutory appeal.

OPINION

In support of their contention that the trial court abused its discretion by issuing a preliminary mandatory injunction, defendants initially argue that the court was without jurisdiction to entertain the action. They stress that where, as here, a suit which could control the action of the State or subject it to liability is brought against State officials in their official capacities, the action is generally considered to be a suit against the State which is barred by the doctrine of sovereign immunity. (Struve v. State Dep't of Conservation (1973), 14 Ill.App.3d 1092, 303 N.E.2d 32.) They concede, however, that whether a suit is considered to be brought against the State and barred by sovereign immunity depends not on the identification of the formal parties in the record, but on the issues involved and the relief sought. (Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35, 101 N.E.2d 71; G. H. Sternberg & Co. v. Bond (1975), 30 Ill.App.3d 874, 333 N.E.2d 261.) Defendants contend that this suit falls within the ambit of section 8 of the Court of Claims Act (Ill.Rev.Stat. 1977, ch. 37, par. 439.8) which provides in part that:

"The court (of claims) shall have exclusive jurisdiction to hear and determine the following matters:

(a) All claims against the state founded upon any law of the State of Illinois, or upon any regulation thereunder by an executive or administrative officer or agency, other than claims arising under the Workmen's Compensation Act or the Workmen's Occupational Diseases Act."

Defendants argue that in light of this statute and the fact that plaintiff seeks compensation pursuant to the provisions of section 2-16 of the Public Community College Act (Ill.Rev.Stat. 1977, ch. 122, par. 102-16), it is only the court of claims which has proper jurisdiction of the action. As support for this argument, defendants also cite Boards of Education of School Dists. 67, 68, 69, 70, 71, 72, 731/2, 74, and 219, Cook County v. Cronin (1977), 54 Ill.App.3d 584, 12 Ill.Dec. 396, 370 N.E.2d 19.

We disagree with this argument. We note initially that in Cronin, the court held that defendants were under no legal duty to perform the acts which plaintiffs requested, and that the suit was therefore a suit against the State which could only be heard in the court of claims. Where, however, a suit brought against State officials seeks to compel them to perform their duty, it is not held to be a suit against the State even though the duty to be performed arises under a certain statute. (See People ex rel. Hilger v. Myers (1969), 114 Ill.App.2d 478, 252 N.E.2d 924; People ex rel. Kaneland Community Unit School Dist. No. 302 v. Howlett (1964), 30 Ill.2d 128, 195 N.E.2d 678.) Section 2-16 provides for the credit hour claims of a community college district such as plaintiff herein to be filed and approved by defendant Illinois Community College (State) Board. The next steps in the process, according to the clear terms of the statute, are that "the State Board Shall prepare and certify to the State Comptroller the report of claims for community college grants and vouchers setting forth the money due each such district" and that, within fifteen days of the receipt of these vouchers, "(t)he Comptroller Shall cause his warrants to be drawn for the respective amounts due, payable to each community college district * * *." (Ill.Rev.Stat. 1977, ch. 122, par. 102-16, emphasis added.) Defendants do not dispute that plaintiff's claims for credit hour grants were approved for payment as evidenced by a letter attached to plaintiff's complaint and signed by the executive director of defendant State Board. The approved vouchers for that payment were sent, however, not to the State Comptroller as the statute directs, but to defendant Illinois Department of Administrative Services. Citing the directives of section 2-16, plaintiff asserts that defendants' action was arbitrary and erroneous, and seeks a writ of mandamus compelling defendants to perform their duty according to the statutory terms. As our supreme court held in People ex rel. Freeman v. Department of Pub. Welfare (1938), 368 Ill. 505, 507, 14 N.E.2d 642, 643:

"(M)andamus lies to review the acts of administrative officers or boards where it appears they have acted arbitrarily or in abuse of discretion vested in them. (Citations omitted.) We are of the opinion that the present proceeding charging arbitrary action or abuse of administrative discretion resulting from an erroneous construction of a statute is not a suit against the state."

Because this action seeks to compel the performance of a duty in accordance with the law, we conclude that it should not be considered to be a suit against the State, and it was properly within the circuit court's jurisdiction. See County of Cook v. Ogilvie (1972), 50 Ill.2d 379, 280 N.E.2d 224.

Defendants next contend that the trial court abused its discretion in entering the preliminary mandatory injunction because the order violated section 3-1 of the...