McGuire v. Board of Regents of Northern Illinois University

• Decision Date: 25 May 1979
• Docket Number: No. 15248,15248
• Citation: 390 N.E.2d 632,71 Ill.App.3d 998,28 Ill.Dec. 465
• Parties: , 28 Ill.Dec. 465 J. Powers McGUIRE, Plaintiff-Appellant, v. The BOARD OF REGENTS OF NORTHERN ILLINOIS UNIVERSITY, a body corporate and politic, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 632

390 N.E.2d 632

71 Ill.App.3d 998, 28 Ill.Dec. 465

J. Powers McGUIRE, Plaintiff-Appellant, v. The BOARD OF REGENTS OF NORTHERN ILLINOIS UNIVERSITY, a body corporate and politic, Defendant-Appellee.

No. 15248.

Appellate Court of Illinois, Fourth District.

May 25, 1979.

J. Powers McGuire, Sycamore, pro se; Edward F. Diedrich, Sycamore, DeKalb, for plaintiff-appellant.

Giffin, Winning, Lindner, Newkirk, Cohen & Bodewes, Springfield, for defendant-appellee.

TRAPP, Justice.

Plaintiff appeals from the order of the trial court which dismissed with prejudice his complaint against the Board of Regents of Northern Illinois University. Plaintiff alleged a breach of an employment contract and prayed damages in excess of one million dollars.

The action was initially filed in the circuit court of DeKalb County. Defendant filed a special and limited appearance and upon defendant's motion the action was transferred to Sangamon County where the defendant has its principal office. Ill.Rev.Stat.1977, ch. 110, par. 7(1).

On appeal plaintiff contends that the circuit court has jurisdiction in the matter of this action for breach of contract and that the complaint sufficiently states a cause of action. He also argues that the provision for venue in Illinois Revised Statutes 1977, chapter 110, paragraph 7(1), violates the fourteenth amendment of the United States Constitution.

Section 1 of "AN ACT in relation to the immunity of the State of Illinois" (Ill.Rev.Stat.1977, ch. 127, par. 801), effective January 1, 1972, provides:

"Except as provided in 'AN ACT to create the Court of Claims, to prescribe its powers and duties, and to repeal AN ACT herein named', filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court."

Section 8 of "AN ACT to create the Court of Claims to prescribe its powers and duties, * * * " (Ill.Rev.Stat.1977, ch. 37, par. 439.8), provides:

"The court shall have exclusive jurisdiction to hear and determine the following matters:

(b) All claims against the state founded upon any contract entered into with the State of Illinois.

In Scoa Industries, Inc. v. Howlett (1975), 33 Ill.App.3d 90, 337 N.E.2d 305, the court noted that the enactment of section 801 of the Civil Administrative Act, effective January 1, 1972 (Ill.Rev.Stat.1977, ch. 127, par. 801), was a legislative restatement or reenactment of sovereign immunity. See also Williams v. Medical Center Commission (1975), 60 Ill.2d 389, 328 N.E.2d 1; Talandis Construction Corp. v. Illinois Building Authority (1978), 60 Ill.App.3d 715, 18 Ill.Dec. 84, 377 N.E.2d 237 (Leave to appeal denied ).

Plaintiff argues that the circuit court had jurisdiction by reason of the provisions of Section 7 of "AN ACT providing for the management,power, control and maintenance of the Regency Universities System" (Ill.Rev.Stat.1977, ch. 144, par. 307), which provides:

"The Board is hereby constituted a body corporate and politic and shall have power:

a. to enter into contracts;

b. to sue and be sued, provided that any suit against the Board based upon a claim sounding in tort must be filed in the Court of Claims;

He urges that we imply and infer from that language that claims upon contract should be heard in the circuit court.

Black's Law Dictionary (3rd Ed. 1944), notes the phrase "body corporate and politic" and says, "The term is particularly appropriate to a public corporation with powers and duties of government."

In Union County Regional Board of School Trustees v. Union County Historical Society (1977), 52 Ill.App.3d 458, 461, 10 Ill.Dec. 153, 155, 367 N.E.2d 541, 543, the court considered the question of whether or not a private not-for-profit corporation qualified as a "body politic and corporate." Upon such issue the court said:

"A 'body politic' as thus defined must possess some attribute of sovereignty and exercise some sovereign power of the State, either through constitutional or legislative grant, which it exercises for the common benefit of all within its geographical boundaries."

The language describing the structure of the Regency Universities (Ill.Rev.Stat.1967, ch. 144, par. 307) discloses an intent that the Board of Regents is an agency of the state in the execution of its powers.

In People ex rel. Maciuba v. Cheston (1975), 25 Ill.App.3d 224, 323 N.E.2d 40, the court concluded that if the relief sought could operate to control the action of the state or subject it to liability, the suit is deemed to be against the state. In Scoa, the court said:

"A suit brought against an officer or agency with relation to matters in which the defendant represents the State in action and liability, even though the State is not a party to the record, is in effect a suit against the State. (Citation.) Whether a particular action falls within the prohibition is dependent on the particular issues involved and the relief sought." (33 Ill.App.3d 90, 94, 337 N.E.2d 305, 309.)

See also Talandis Construction Corp. v. Illinois Building Authority (1978), 60 Ill.App.3d 715, 721, 18 Ill.Dec. 84, 89, 377 N.E.2d 237, 242.

Without recitation of detail, examination of the statutory provisions creating the Regency Universities and granting their powers disclose that such provisions meet the criteria of an arm or agency of the state as determined in Williams v. Medical Center Commission (1975), 60 Ill.2d 389, 328 [71 Ill.App.3d 1001] N.E.2d 1, and Kane v. Board of Governors (1976), 43 Ill.App.3d 315, 2 Ill.Dec. 53, 356 N.E.2d 1340.

Following the legislative enactment of the Court of Claims Act, effective January 1, 1972, the courts of review have held that contract actions against the systems of universities created by the legislature must be brought in the Court of Claims for the reason that they are state agencies under the umbrella of sovereign immunity and that the circuit court is without authority to render a money judgment. (Hoffman v. Yack (1978), 57 Ill.App.3d 744, 15 Ill.Dec. 140, 373 N.E.2d 486 (Leave to appeal denied ), (Board of Trustees of Southern Illinois University); Tanner v. Board of Trustees of the University of Illinois (1977), 48 Ill.App.3d 680, 6 Ill.Dec. 679, 363 N.E.2d 208). In Tanner, the action was for breach of an implied contract to grant a Ph.D. In Yack, plaintiff sought to establish a breach of implied contract concerning employment.

The sum of the authorities requires a conclusion that where a party seeks a money judgment against the state or an agency of the state, the relief must be sought in the Court of Claims.

As to plaintiff's contention that we must imply or infer a legislative intent to distinguish between contract actions and tort actions because the language of section 7 of the Regencies Universities Act (Ill.Rev.Stat.1977, ch. 144, par. 307) provides:

"(T)o sue and to be sued, provided that any suit against the Board based upon a claim sounding in tort must be filed in the Court of Claims; * * * ",

we note that the Court of Claims Act treats contract actions and tort actions in separate paragraphs and provisions with an apparent purpose to limit dollar liability and, in stated instances, to limit defenses.

The plaintiff argues only the opinion in Johnson v. The Department of Public Aid (1972), 3 Ill.App.3d 1045, 279 N.E.2d 791, in support of his view that the circuit court has jurisdiction. That opinion holds that the statutory provision for administrative review of the administrative decisions of the Department of Public Aid represents a legislative consent for such matters to be heard in the circuit court. In such light that opinion does not approach the issue presented here.

We affirm for the reason that plaintiff's action must be brought in the Court of Claims. Upon such determination it is not necessary to consider the other issues raised.

Affirmed.

MILLS, J., concurs.

GREEN, J., concurs specially.

GREEN, Justice, concurring specially:

I concur with the decision of the majority and agree that defendant was immune from suit. To the extent that the majority indicates that the immunity arises from legislation providing for and defining the powers of the court of claims, I am in disagreement. I think that defendant is immune only because of the provisions of section 1 of "An Act in relation to the immunity of the State of Illinois" (Ill.Rev.Stat.1977, ch. 127, par. 801). I also think that the argument of the plaintiff has more substance than the majority opinion indicates and that if it were not for the foregoing legislation our decision would be different.

As noted by the majority, Scoa Industries, Inc. held that the legislation mentioned in the first paragraph was a restatement or reenactment of the sovereign immunity existing prior to the effective date of article XIII, section 4 of the Illinois Constitution of 1970 which abolished sovereign immunity except to the extent that the legislature should provide otherwise. The Illinois Constitution of 1870 provided in article 4, section 26: "The State of...