Ritchey v. Maksin

• Decision Date: 10 May 1977
• Docket Number: No. 76-232,76-232
• Citation: 49 Ill.App.3d 974,365 N.E.2d 127,7 Ill.Dec. 842
• Parties: , 7 Ill.Dec. 842 Jerry RITCHEY, Plaintiff-Appellant, v. George MAKSIN, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 127

365 N.E.2d 127

49 Ill.App.3d 974, 7 Ill.Dec. 842

Jerry RITCHEY, Plaintiff-Appellant, v. George MAKSIN, Defendant-Appellee.

No. 76-232.

Appellate Court of Illinois, Fifth District.

May 10, 1977.

Rehearing Denied July 8, 1977.

Dennis J. Hogan, Murphysboro, for plaintiff-appellant.

William J. Scott, Atty. Gen., Stephen R. Swofford, Asst. Atty. Gen., Chicago, for defendant-appellee.

GEORGE J. MORAN, Justice.

Plaintiff appeals from a judgment of the circuit court of Jackson County dismissing his complaint with prejudice.

The plaintiff's complaint alleged that the defendant was employed as an inspector with the Department of Agriculture and that his duties were ministerial; that in excess of his duties he negligently and/or wilfully and wantonly initiated criminal charges against the plaintiff and publicly accused the plaintiff of being an adulterator and mishandler of feed products.

The defendant who was represented by the Attorney General's office filed a motion to dismiss the complaint which in pertinent part reads:

"4. The complaint herein clearly shows the sole and only reason that this defendant was made a party in this action is that he exercised authority and discharged duties of the State agency in connection with the subject matter of said complaint.

5. Plaintiff is in fact suing an agency of the State of Illinois in contravention of P.A. 77-1776, Ill.Rev.Stats., 1973, ch. 127, par. 801, which 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.'

This action can not, therefore, be maintained in the Circuit court."

The trial court in dismissing plaintiff's complaint with prejudice held that plaintiff's suit should have been filed in the Court of Claims:

"It is the opinion of the court that the motion of the defendant based upon limitations of Chapter 127, paragraph 801, is well founded and that the principle complaint is a suit against an individual for governmental acts and that the defendant is immune from this suit and that this court does not have jurisdiction in this matter and that the same should be filed in the Court of Claims in the State of Illinois.

THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the complaint be dismissed with prejudice."

The sole question before this court, then, is whether plaintiff was, in fact, suing the State of Illinois in contravention of Ill.Rev.Stat.1975, ch. 127, par. 801. We emphasize that in considering this case we are not concerned with the question of whether plaintiff's complaint states a cause of action against the defendant individually.

In G. H. Sternberg & Co. v. Bond, 30 Ill.App.3d 874, 333 N.E.2d 261, this court considered a case wherein the trial court enjoined the Director of the Department of Transportation from enforcing contract rights under a construction contract entered into between plaintiff and the State. In holding that the State was the real party in interest rather than the defendant, this court observed that it was clearly the intent of plaintiff to enjoin any and all members of State government from taking any action in the contract. We further observed that plaintiff's suit attempted to bind the State and asked no relief from the defendant personally.

In this case plaintiff does not purport to sue the State or a department of the State. Neither does he seek to control an activity of the State or subject the State to liability.

In Sternberg we said:

"The Supreme Court has consistently held that whether a cause of action is barred by sovereign immunity is not to be determined solely by identification of the formal parties in the record but depends upon the issues presented and the relief sought. (Citations.) In Struve v. Department of Conservation, 14 Ill.App.3d 1092, 303 N.E.2d 32 (1973), plaintiff filed suit against the Department and its director asking for a determination of her rights under a lease entered into with the State and for an injunction prohibiting her eviction by the State. The court held that the circuit court was without jurisdiction to entertain the suit. The court stated:

'A suit brought against an officer or agency with relation to some matter in which defendant represents the state in action and liability, and the state while not a party to the record is the real party against which relief is sought, so that a judgment or decree for plaintiff, although nominally against the named defendant as an individual distinct from the state, could operate to control the action of the state or subject it to liability, is in effect, a suit against the state. (Citation.)' (14 Ill.App.3d 1092, 1093-94, 303 N.E.2d 32, 34.)"

The following language contained in 81 C.J.S. States § 216 (1953) at 1316-18 is most relevant to this appeal:

"As is sometimes pointed out in the cases, suits, such as those mentioned in the preceding section, wherein it is sought to compel defendant officially to perform an obligation, or refrain from action, which is that of the state in its political capacity, are clearly distinguishable from suits against officers or agents personally, because, while claiming to act officially, they have committed or they threaten to commit wrong or injury to the person or property of plaintiff, either without right and authority or under color of an unconstitutional statute. Although defendant may assert that he acted officially, and on behalf of the state, a suit of this latter class is not a suit against the state, whether it is brought to redress injuries; to recover property wrongfully taken or held by defendant on behalf of the state; to recover damages; for an injunction; or to compel an officer to obviate the effect of an illegal act."

Since the plaintiff sought damages only against the defendant personally, and since he did not attempt to control the action of the State or subject it to liability, we find that this cause of action was not one against the State of Illinois. Accordingly, we reverse the judgment of the circuit court of Jackson County and remand this case for further proceedings.

Reversed and remanded.

EBERSPACHER, J., concurs.

JONES, Justice, dissenting:

Has the State been sued in this case? I believe that it has and that such fact is apparent from the face of the complaint and conclusively determined by case law and I accordingly would affirm the judgment of the trial court. Furthermore, aside from the question of State immunity, I would affirm the trial court upon the ground that the complaint does not state a cause of action against the defendant as an individual. I accordingly respectfully dissent.

Patently the complaint names George Maksin as the only defendant neither the State nor its agency, the Department of Agriculture, is expressly involved. Nevertheless, the omission to sue the State or one of its agencies in express terms is not determinative of the question. The following from Posinski v. Chicago, M., St. P. & Pac. R. Co., 376 Ill. 346, 33 N.E.2d 869, 871, correctly states the rule:

"(A) suit nominally against an officer or agency with relation to some matter in which defendant represents the State in action and liability is a suit against the State if the State, while not a party to the record, is the real party against which relief is sought. Stated differently, where the rights of the State are directly and adversely affected by the judgment or decree sought against the officer of the State, the suit is against the State, and is prohibited by the constitution."

(Schwing v. Miles, 367 Ill. 436, 11 N.E.2d 944.) Many cases stand for this proposition and several are cited in the Sternberg case which appears in the majority opinion.

There is a corollary rule which holds that State officials may not claim the immunity of Ill.Rev.Stat.1975, ch. 127, par. 801 for their actions which are outside the scope of their authority. That rule is stated in People ex rel. Freeman v. Department of Public Welfare, 368 Ill. 505, 507, 14 N.E.2d 642, 643, as follows:

" * * * (W)here the action at law or suit in equity is maintained against a state officer or the director of a department on the ground that, while claiming to act for the state, he violates or invades personal and property rights under an assumption of authority which he does not have, such a suit is not against the state. Schwing v. Miles, supra; Noorman v. Department of Public Works & Buildings, supra. The presumption obtains that the state, or a department thereof, will not, and does not, violate the Constitution and laws of the state, but that such violation, if it occurs, is by a state officer or the head of a department of the state, and such officer or head may be restrained by proper action instituted by a citizen. Noorman v. Department of Public Works & Buildings, supra; Joos v. Illinois National Guard, 257 Ill. 138, 100 N.E. 505."

Also see Noorman v. Department of Public Works & Buildings, 366 Ill. 216, 8 N.E.2d 637; Fitts v. McGhee, 172 U.S. 516, 19 S.Ct. 269, 43 L.Ed. 535.

Whether a suit is one against the State and therefore prohibited by the statute depends on the type of action that is being brought and the relief that is being sought. Posinski v. Chicago, M. St. P. & Pac. R. Co.; Scoa Industries, Inc. v. Howlett, 33 Ill.App.3d 90, 337 N.E.2d 305; Powers v. Telander, 129 Ill.App.2d 10, 262 N.E.2d 342.

In considering the type of action being brought and the relief being sought in the case under consideration it is apparent to me that the action is against the State and is accordingly prohibited.

The complaint against the nominal defendant, George Maksin, is in two counts, one couched in negligence and the other couched in wilful- wanton conduct. The allegations of the two counts are identical except that Count II substitutes wilful wanton conduct for negligence. The complaint alleges that ...