text:
    (No. 97-CC-0157
    Albert Williams, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 19, 2000.

    Wilkie & McMahon (John M. Wilkie, of counsel), for Claimant.
    Jim Ryan, Attorney General (Mark E. McCullough, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Albert Williams, an inmate of the Illinois Department of Corrections, filed his first amended complaint sounding in negligence on December 8, 1997'. Claimant alleged that he was injured in an attack by other inmates at Menard Correctional Center due to the negligence of Respondent.

The Respondent filed a departmental report. The cause was tried before one of the Courts Commissioners.

Claimant testified that he was first incarcerated in April of 1993 on a robbery conviction. Eventually, Claimant was transferred to Menard Correctional Center. On March 23, 1994, Claimant filed a grievance as to his placement at Menard. Claimant alleged in his grievance that he was having problems with gang leaders at State-ville Correctional Center and had been housed in the protective custody unit at Stateville. Claimant further alleged that he had been advised by the Stateville administration that he would be transferred to Dixon. Claimant was transferred to Menard because he was classified as maximum security, due to his second conviction and 24-year sentence. The grievance was denied.

Claimant has an enemy in prison at Stateville named John Holman a/k/a Riffraff. Mr. Holman was a Vice Lord and apparently believed Claimant had ratted on him. John Holman had a brother, Freddie Holman, who was incarcerated at Menard. Claimant did not feel he would be safe around Holmans brother. After Claimant arrived at Menard, he asked to be placed where he would not be in jeopardy. A Captain Stanley explained the protective custody láck-out procedure to Claimant. Protective custody was full so Claimant was placed in a single cell with no cellmate. Claimant had notified officials at Stateville and Menard of his fear of the Holmans and their associates. The effective date of April 12,1993, is shown on the inmate date summary which indicates Claimant should be kept separate from Holman N73004.

On July 27, 1994, in the early morning, Claimant was in his single cell, which was cell WCH2-20. Claimant was awakened by punches to the face and a cover over his face. Claimant was beaten in the face and struck in the shoulders. He ended up wrestling with a man with a knife. Someone grabbed him from behind and he was put in a full nelson. Then one of the people beat on his face. He was stabbed in the shoulder with a knife. Claimant has a half-inch scar on his shoulder. Claimants cell had been locked and inmates are not supposed to be let into other inmates’ cells. He believes staff let them in. Claimant cannot identify his attackers.

Claimant was a member of the Four Corner Husders gang. The Vice Lords were their adversaries. Holman was a Vice Lord. Claimant testified he was never a Vice Lord. Claimant had members of the Vice Lords housed on either side of his cell. During the beating, Claimant lost consciousness. He came to as he was being carried to the infirmary. Claimant had tenderness on the right side of his neck, a swollen eye, and pain in his nose and eyeballs. Claimant had double vision. Claimant was in the infirmary until August 9,1994, when he was discharged.

Claimant indicated that in addition to the scar on his shoulder, he received four chipped teeth. The dentists at the prison fixed his teeth. One tooth had to be pulled because it was split in half. Claimant occasionally has blurred vision and problems with light. He also has headaches and nightmares concerning the incident. Claimant called no medical experts to testify about his injuries.

Claimant testified he notified several different gallery officers about his safety concerns when he arrived at Menard but nothing was done. Menard was on lockdown when he arrived. Claimant does not recall the names of the gallery officers he spoke to. He does recall talking to Captain Stanley at Menard about his safety concerns on April 7,1994.

The Respondent called Dr. Muhammad Choudry to testify. Dr. Choudry testified that, for the six months prior to March 3, 2000, Claimant had made no medical complaints of blurred vision, problems with light, or the need for glasses to the medical personnel at the Department of Corrections.

The medical records indicate that on August 9, 1994, Claimant had a contusion to the right eye and a questionable hemorrhage on the eye. There was a complaint by Claimant of blurred vision at that time. Claimant was on Cyclogyl which could cause blurred vision.

Claimants follow-up records indicate contusion, inflammation of the iris/pupil, but that the blurred vision had cleared up.

Respondent produced evidence that Fred Holman was in court in Joliet on the date of this incident. He was in Joliet from January 28, 1992, until August 3, 1994. This impeached Claimants testimony that he saw Fred Holmes at Menard in July of 1994. The Respondent also called Sergeant Lamont Gilbert to testify. He recalled the incident when Claimant was injured. He was supervisor of the cell house where Claimant was incarcerated. He recalls Officer Borton calling over the radio. Officer Borton was upset. He went down to Claimants cell and saw Claimant in his cell. He had been beaten up. He called the medical staff and Claimant was transferred to the health care unit. Menard is a maximum security facility for violent inmates. There is illegal gang activity. He believes that the Vice Lords and Four Corner Hustlers were allies. Sometimes gangs get along and other times they do not. He also testified that between 8:00 a.m. and 9:00 a.m., the cells on the gallery are all cranked open. Claimant never informed him of any fears of enemies. Claimant never requested to be deadlocked in his cell.

On cross-examination, Sergeant Gilbert admitted that if an inmate was sleeping when the crank was thrown, he would still have to get up to open the door himself. No one could go into the cell until the inmate opened his cell door.

The incident report in the Departmental Report acknowledges the assault on Claimant, his injuries, and that the assault occurred at 8:45 a.m. on July 27,1994.

The Law

Although the State is not an insurer of the safety of an inmate in its custody, the State has a duty to exercise reasonable care under the circumstances to prevent its inmates from suffering harm at the hands of other inmates, but it must be shown by a preponderance of the evidence that the harm was foreseeable. Phipps v. State (1991), 44 Ill. Ct. Cl. 105.

In cases where inmates have been assaulted by other inmates, this Court has determined that, in order to prove foreseeability of harm, it must be shown that Respondents agents anticipated, or should have anticipated, that third parties would commit criminal acts against the inmate who was attacked. (Childs v. State (1985), 38 Ill. Ct. Cl. 196.) Claimant filed a grievance concerning fears for his safety at Menard. The State had documents as early as April of 1993 that Claimant had known enemies in the prison system. Claimant testified he gave notice of his fears for his safety to Captain Stanley. The Respondent failed to call Captain Stanley to rebut that testimony.

The State had actual notice of the potential for harm to this Claimant. (Smith v. State (1991), 44 Ill. Ct. Cl. 45.) This case turns, however, on the facts of the attack on Claimant. It is undisputed that the attack occurred in Claimant’s single cell. The Claimant testified he was awakened by the beating. The Sergeant testified that even if the crank is turned to unlock the cell block, no unauthorized person can get into the cell until the inmate opens the cell door. This leads the Court to the conclusion that someone with authority opened Claimant’s cell so he could be attacked. Claimant’s testimony was corroborated by the Sergeant’s testimony.

We find that the Respondent had actual notice of potential harm to Claimant and failed to reasonably act to protect him by allowing his cell door to be opened. The Respondent is liable for Claimant’s proven injuries. It was foreseeable that, if Claimant’s cell door was opened beyond the turning of the crank, that he would be attacked while he slept. Petrusak v. State (1987), 39 Ill. Ct. Cl. 113.

The issue of damages is much less clear. Claimant had no proven medical bills or lost wages. He had a small scar on his shoulder, a hospitalization for ten days, contusions, and pain and suffering. Claimant had no documentation for his claim of blurred vision and headaches beyond the hospitalization. Claimant called no expert witnesses as to his medical care. Claimant’s testimony as to his pain and suffering was extremely brief. However, Claimant is entitled to a measure of damages for his pain and suffering, small scar, and teeth injuries.

Based on all the testimony and exhibits, we find that Four Thousand Dollars ($4,000) fairly compensates Claimant for his proven injuries. For the foregoing reasons, it is ordered that Claimant is awarded Four Thousand Dollars ($4,000) in full and final satisfaction of his claim.


source: Caselaw Access Project

author: Epstein, J.

license: Public Domain

text:
    (No. 97-CC-1570
    Amos L. Smith, Claimant, v. The State of Illinois and Illinois Department of Natural Resources, Respondents.

      Order filed August 4, 2000.

    Burnside, Johnston, Choisser and Sheafor (Jack Johnson, of counsel), for Claimant.
    Jim Ryan, Attorney General (Peter C. Beard, Assistant Attorney General, of counsel), for Respondents.
   ORDER ON MOTION TO DISMISS

Epstein, J.

This is an adverse possession claim to a 20-25 feet wide strip of land in Fayette County, part of a former railroad right-of-way, that has been owned by the State and used by the Department of Natural Resources (“IDNR”) as part of the Ramsey Lake State Park (the “Park”) Prairie Nature Preserve, and is before us on the Respondents jurisdictional motion to dismiss.

Nature of the Claim

The Claimant alleges that “for more than 50 years * * * [he and his] predecessors in title have openly used, occupied and possessed, for agricultural purposes” the disputed strip of land, which lies between a north-south roadway through the Park and the States west property line. (See complaint, par. 5.) Claimant also alleges that the roadway “has been improved and maintained by the Village of Ramsey for more than 25 years * # * and has been used openly, adversely, continuously and uninterruptedly by the public under a claim of right for more than 15 years # # (See complaint, par. 3.) Claimant seeks a declaratory judgment that the roadway is a public road and that Claimant is the owner by adverse possession of the disputed strip of land.

The Motion to Dismiss

The Respondents motion pursuant to section 2— 619 of the Code of Civil Procedure (735 ILCS 5/2 — 619) to dismiss is based on the State’s March 31, 1999, conveyance of the disputed property to the Village of Ramsey (“Ramsey” or the ‘Village”), over which this Court lacks jurisdiction, and which the Respondent asserts is currently the party in title against which the Claimant’s adverse possession claim now lies.

The Claimant contests the Respondent’s motion to dismiss on a single legal ground: that the Village did not duly accept the conveyance from the State, and therefore title to the disputed strip of land has not passed to it, hence the State remains the legal owner and true party in interest against which the adverse possession claim lies, and over which this Court has exclusive jurisdiction. (See “Answer to Motion to Dismiss, 2-3; Brief of Claimant in Opposition to * * * Motion to Dismiss.”)

The parties have both submitted evidentiary material in support of their positions. The Respondent submitted title documents in its departmental report, as well as Ramsey Village Board meeting minutes; the March 31, 1999, deed from the IDNR to Ramsey “in compliance with Public Act 90-670”; the 1996 water supply agreement between the IDNR and Ramsey; and the March 31, 1999, amendment by Ramsey and IDNR to the water supply agreement.

The Claimant has submitted affidavits of the mayor and clerk of Ramsey; two Ramsey ordinances concerning its water service rates; excerpts from minutes of Ramsey Village Board meetings; and the March 31, 1999, IDNRRamsey amendment to the water supply agreement.

The Undisputed Facts as to the IDNR-Ramsey Conveyance

The following undisputed facts emerge from the parties’ document and affidavit submissions, as well as from the factual positions taken in their papers:

1. The IDNR and Ramsey had negotiated an agreement whereby the IDNR would convey the former railroad right of way portion of the Park property to Ramsey in return for Ramsey lowering the water rates (to in-village rates) that it now charges IDNR for providing water service to the Park (at out-of-village rates);
2. The Director of IDNR executed and delivered the deed to the land to Ramsey on March 31, 1999 as authorized by Section 970 of Public Act 90-760;
3. Ramsey physically received the deed, but has not recorded it;
4. On March 31, 1999, Ramseys mayor and clerk executed an amendment to the pre-existing water service agreement between the parties; the amendment provided (a) that “water bills assessed to the Park will follow the * * * rates * * * for billing in-town water customers” and (b) deleted the provision in the Agreement that granted a “right-of-way on Park property * s * sufficient * ” # to install, repair or replace the Park water service”;
5. Ramsey has not lowered the water rates charged to IDNR for the Park, nor adopted an ordinance amending the prior rates to do so (which is necessary as Ramseys water rates are set by ordinance); the IDNR is still being charged the higher out-of-village rates by Ramsey;
6. Ramseys mayor and clerk assert that the Village did not intend to accept the deed (or title to the property) until the dispute between the Claimant and the State is resolved in this Court;
7. At a Ramsey Village Board meeting on July 19, 1999, the following transpired according to the official minutes:
“Ken Larimore told the Board he received a call from the State about the strip of land the State wants to give [sic] to the Village. Ken told the Board he has also received correspondence from Amos Smith's attorney 4 4 4. The full Board was in agreement that we will stay out of this matter and not accept the strip of land until Amos Smith and the State get everything worked out."

The Parties' Positions

Respondent contends that Ramsey has accepted the deed, despite its failure to record it, and that its contemporaneous intention is confirmed by its execution of the amendment to the water agreement on the day it received the deed. Respondent urges that not only does that amendment reflect the parties' water rate agreement (and thus the consideration for the land transfer), but it also eliminates the village’s prior maintenance easement on the Park property which is senseless unless the village was obtaining a different right to access its water lines there.

The Claimant argues (See answer to motion to dismiss, at pars. 2-3):

“The Mayor asserts that his execution of the Amendment was conditioned upon resolution of the pending litigation (this Court of Claims actions); in fact, it was simply not authorized and is null and void. * * *. No amending ordinance was adopted establishing an in-village rate for the Department 4 e Thus the Department is being charged the higher, non-resident rate. The actions of the village are totally consistent with its asserted position of non-acceptance.
The Respondent's position is reduced to this: The Village of Ramsey received a deed from the State 4 4 0 and has not sent it back. No consideration has been given to the State; the Mayor signed the amendment without authority in law and the amendment is void. Finally, the village officers deny acceptance and the actions of the village are wholly consistent with its espoused position: the deed has not been recorded and the Department continues to receive the out-of-village higher water rate.”

Discussion

The parties agree, as does this Court, on the underlying principles of law that apply here, but which do not by themselves resolve this “acceptance” issue, which ultimately turns on the manifested intent of the Village to accept or not to accept the State’s deed when it was delivered.

First, it is clear in Illinois that recording of a deed is not a condition of its effectiveness to transfer an interest in real estate as between the grantor and grantee, and thus Ramseys failure to record the States quitclaim deed does not affect its operation as a conveyance. (See, e.g., Lucas v. Westray (1951), 408 Ill. 243, 248; In re Application of Cook County Treasurer (1st Dist. 1998), 185 Ill. App. 2d 428, 433.) A deed also need not be recorded in order to be delivered. Farmers State Bank v. Neese (4th Dist. 1996), 281 Ill. App. 3d 98, 195.

Second, the conveyance of legal title to land does not arrest the running of the applicable statute of limitations for purposes of adverse possession claims against that land; the grantee takes the title that the grantor had as of the time of the conveyance, and that conveyed interest is subject to any adverse possession rights or claims then existing in another party. (See, e.g., Shortall v. Hinckley (1863), 31 Ill. 219.) Thus the validity or invalidity of the conveyance to Ramsey does not affect the merits of the Claimants underlying adverse possession claim.

Third, there is a presumption that a duly executed and delivered deed has been accepted. This presumption may be rebutted. However, as the Claimant emphasizes, it has also been said in In re Estate of Shedrick (1st Dist. 1984), 122 Ill. App. 3d 861, at 865, that

“‘«o * where a deed imposes an obligation upon or creates any liability against a grantee an acceptance cannot rest upon a mere presumption but must be of an affirmative character.’ (Seibert v. Seibert (1942), 379 Ill. 470, 478, 41 N.E.2d 544.) The mere fact of possession of a deed by a grantee is not necessarily an acceptance thereof.”

The Respondent ultimately relies on the presumption of acceptance and on three undisputed points to support its position that Ramsey accepted the conveyance: (1) Ramsey accepted physical receipt of the deed and did not return it; (2) Ramsey executed the amendment which affirmatively showed its contemporaneous intent to implement the deed-for-reduced-water-rates agreement and thus to accept the land; and (3) Ramseys execution of the amendment abandoning its easement across the disputed land is inconsistent with a refusal to take ownership of the land and thereby retain access to its water lines.

The Claimant — with the apparent support of the Village although it is not a party here — replies that its failure to return the deed is not itself dispositive and that the amendment to the water service agreement was “not authorized” and “without authority in law” and is “void.” The Claimant offers no rebuttal to the access point.

We agree that the physical receipt of the deed and failure to return it are not dispositive. These facts are not irrelevant, however. They support a finding of acceptance and are inconsistent with a rejection, though not with the wait-and-see intent claimed by Ramsey and the Claimant.

The Claimants effort to disclaim any effect of the amendment is another matter. Because the Claimant has not supported its contention that the amendment was “void” — he has not even shared his (or Ramseys) theory of why the amendment was “unauthorized” as a matter of law — we cannot evaluate the merits of that contention. However, whether or not the amendment was binding or effective, it was clearly a contemporaneous action of two Village officers that, standing alone, demonstrates an intent or an understanding on their part that the land-for-rates deal was then being consummated, at least partly. The contemporaneous execution of the amendment by the mayor and clerk supports acceptance, and is inconsistent with the wait-and-see intent now asserted by them.

The Claimant advances several points in support of his position that the Village did not accept the State s conveyance: (1) Ramseys physical acceptance of the deed was conditional upon the completion of this litigation in this Court; (2) that the effectiveness of the amendment was “conditioned on acceptance of the deed,” which did not occur; (3) that the agreement was void (discussed above); (4) that the deed-for-rate-reduction arrangement fails for lack of consideration because the Village has refused or failed to give the stipulated consideration for the deed because (a) the amendment was void, (b) Ramsey has not amended its water rates ordinances and (c) it has continued to bill the IDNR the higher rates; (5) that the village board has expressly refused and delayed Ramseys acceptance; and (6) that because acceptance would impose affirmative duties on Ramsey (to lower its water rates to IDNR), Illinois law requires an affirmative act of acceptance.

Claimants first and second points, asserting “conditions,” is supported by the affidavits of Ramseys mayor and clerk. Those affidavits are entirely conclusory and fail to provide any factual basis for the asserted conditions beyond those two officials’ after-the-fact statements of their own prior intent. There is not a shred of conditional language in the amendment or in the mayor’s and clerk’s execution of that document. Nothing in the transactional document shows any effort or intent to impose “conditions” on either the acceptance of the deed or on the effectiveness of the amendment. The unqualified and unambiguous terms of the written documents cannot be modified by subsequent oral testimony.

Similarly, the village board members’ July 19, 1999 statement of their “agreement that we will # # * not accept the strip of land until” the Smith-State dispute is “worked out” is irrelevant, and probably not even admissible. This after-the-fact pronouncement by village officials cannot alter the dispositive intent of March 31, 1999 when the deed was received. The Village either accepted or did not accept at that time. Its board members' “agreement” 3Vz months later cannot alter what had already occurred if it had occurred. Moreover, the members’ “agreement” reflected in the Ramsey Village board minutes is not even an official action: there was no motion and no vote.

The failure of consideration argument is also without merit. Claimant asserts the Village’s refusal or failure to lower its water rates as a failure of consideration of the state-village agreement. However, only the State could assert the Village’s failure to meet its obligations as a ground to rescind the transaction and the deed. The Village surely could not assert its own breach of the agreement to avoid the transaction; a third party like the Claimant lacks standing to assert such a “defense” to other parties’ land transaction.

Moreover, the deed is not conditioned on performance by the Village. There is no basis in the deed, nor has any authority been cited to us, for voiding the conveyance due to the Village’s inaction in lowering its water rates. If an enforceable intergovernmental agreement between the State and the Village was created — an issue that we do not address here — then the IDNR may have some enforceable rights against Ramsey, but that is a matter of contract for another court and is not a matter of the validity of the State’s unconditional deed to the Village in this case.

Finally, we come to the Claimant’s assertion that an affirmative acceptance act is required due to the imposition of affirmative duties on the grantee, Ramsey, by this conveyance, under In re Estate of Shedrick (1st Dist. 1984), 122 Ill. App. 3d 861, 461 N.E.2d 581. Claimant argued that the Village became obligated to lower its water rates upon acceptance of the deed, which is an affirmative obligation within the Shedrick rule. We disagree. First, the articulated principle concerns affirmative obligations imposed by the deed itself. In this case, any affirmative duty on the Village to lower its water rates for the State Park derives not from the deed, and not from any condition of the conveyance or even of the land itself, but instead arises from a separate agreement between the grantor and grantee. Shedrick and its antecedents do not require an affirmative acceptance in this circumstance. Indeed, in Shedrick, supra, the Appellate Court held that there was an acceptance of a disputed deed, affirming an implicit finding of the trial court, without any affirmative act of acceptance. Thus the Shedrick principle was dictum there.

This analysis takes the case back to the posture first asserted by the Respondent. The contemporaneous acts of tire parties reflect an acceptance. The after-the-fact pronouncements and inaction of the Ramsey officials reflect a belated effort to wait and let the State and Mr. Smith slug out their ownership fight in this court (presumably without the Villages involvement). This Court would cheerfully adjudicate that adverse title dispute — about which we here intimate no opinion whatsoever — if we had jurisdiction to do so. But the Villages late disclaimers cannot and do not retroactively alter its prior acceptance of the IDNR conveyance to it of title to the disputed land.

This Court must therefore dismiss this case for want of jurisdiction over the Village of Ramsey, the legal title holder of the disputed land, and remit Claimant Amos Smith to his remedies against the Village in the constitutional courts of Illinois.

Conclusion

For the foregoing reasons, the Court finds that this claim fails to state an action against the State, which is no longer in title or interested in the disputed property, and that this Court lacks jurisdiction over the successor party in interest, the Village of Ramsey.

Wherefore, it is hereby ordered: This claim is dismissed.

       The documents show, inter alia, that the State acquired title to the strip of land in a 1989 conveyance of right-of-way from the Illinois Central Railroad Company.

       P.A. 90-760, effective August 14,1998, entitled “AN ACT concerning property,” is a special act that authorizes several land transactions by various State agencies. Section 970 authorizes the Director of IDNR “on behalf of the State” to deed portions of the former Illinois Central Railroad Company right-of-way in Fayette County to the Village of Ramsey “for and in consideration of $1.00 and other good and valuable consideration ° ° *.”


author: Raucci, C.J.

text:
    (No. 97-CC-2852
    Aldo M. Sbigoli, D.D.S., Individually and as assignee of Alberta Davis, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 19, 2000.

    Levun, Goodman, and Cohen (Susan H. Booker, of counsel), for Claimant.
    Jim Ryan, Attorney General (Darin L. Rasmussen, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, C.J.

This cause is before the Court on a complaint filed by Claimant Aldo M. Sbigoli, D.D.S., individually and as assignee of Alberta Davis, complaining against the Respondent State of Illinois for breach of contract. A hearing was conducted on October 28, 1999, at which the attorneys for the parties appeared and presented written joint stipulations that included facts that would have been testified to by Claimant and by Glenessa Gary, a CIGNA Health Care customer service representative. The parties stipulated to the foundation for 14 exhibits.

I. Facts

During 1994, the State of Illinois provided a medical plan for most of its employees including Alberta Davis. During all relevant periods of time, Cigna Health Care (“CIGNA”) was the third-party administrator of the States medical plan. In general, the medical plan did not cover dental procedures, however, such services would sometimes be covered by the medical plan if ancillary costs were related to a medical injury or disease. Aldo M. Sbigoli began in private practice as an oral surgeon in 1990. He performed three medical procedures on Alberta Davis, a State employee, on November 29, 1994. He made a sinus augmentation, a bone graft to the maxilla and inserted dental implants. The State paid an 80% benefit for professional fees and 65% benefit for facility fees related to the sinus augmentation and the bone graft to the maxilla, but did not allow coverage for the dental implants. The States insurance program was administered by CIGNA.

Dr. Sbigoli provided medical services to Ms. Davis as an oral surgeon. Ms. Davis was a patient of Dr. George Ditola. His diagnosis of Ms. Davis was that she suffered from advanced periodontal disease to the gums and bones and tissue atrophy causing bone loss that resulted in the loss of her remaining upper teeth. Through the procedure of grafting the bone of the sinus and upper jaw and placing implants, any further deterioration and bone loss would be averted. Full dentures were not a viable alternative, because she had a lower natural dentition and the natural teeth would traumatize the upper jaw and hasten bone loss.

On September 28, 1994, Dr. Sbigoli contacted Glenessa Gary, a customer service representative of CIGNA, by telephone to determine the coverage for the above procedures. He was advised that the procedures were covered at 80% with a $100 deductible. A letter was sent via facsimile to CIGNA benefits department on October 24, 1994, requesting verification of coverage for Ms. Davis. On or about November 7, 1994, he received a facsimile letter from Glenessa Gary, dated November 3, 1994, confirming receipt of his preauthorization and indicating that x-rays were necessary for a determination of benefits. On November 10, 1994, he forwarded the x-rays with a letter of medical necessity describing the procedures.

On November 23, 1994, Dr. Sbigoli called Ms. Gary. She stated that the request was still pending and that the procedures would be covered although the level was not determined. He believed that some level of coverage was approved for all three procedures. The surgeiy took place on November 29, 1994. Claimants bill and the one for the surgicenter were sent to CIGNA. He received a letter from Ms. Gary on November 29, 1994, after the surgery, informing him for the first time that the dental implants would not be covered.

Dr. Sbigoli billed $23,500 for the surgery of which $4,934 was paid leaving a balance due of $18,566. He was subsequently told by an unidentified person at CIGNA that dental implants were not covered under the State of Illinois plan. In response to his request to reconsider its denial, CIGNA referenced its “On Line Call Tracking” documentation showing that on November 23, 1994, he was told by Glenessa Gary that dental implants would not be covered.

Ms. Gary admits that she never personally told Dr. Sbigoli that dental implants would not be covered.

II. The CIGNA Agreement

Claimant argues that Glenessa Gary had the authority, both express and implied, to bind the State when she approved Alberta Davis’ benefits for dental implants. This authority flowed from CIGNA’s agreement with the State to act as the administrative service organization. The agreement was authorized by the State Employees Group Insurance Act of 1971. 5 ILCS 375/1 et seq. (1994).

The agreement specifically refers to establishing an agency relationship between the State and CIGNA for the purpose of receiving, processing and disbursing payments for all claims. CIGNA had the express authority to approve or reject claims.

The “Member Benefits Handbook” (hereinafter referred to as “Handbook”) references coverage at 80% for “medically necessary hospital admissions to perform dental services due to a medical condition.” (See Member Benefits Handbook, p. 67, Exhibit No. 11.) The complete reference indicates the reimbursable is for “room and board” and the examples of medical condition are heart disease or hemophilia. Ms. Gary requested a letter of medical necessity, which was provided by Dr. Sbigoli, and may have mistakenly approved the dental implants, thereby altering the benefits available to Alberta Davis. The State recognized that the entity acting as administrator might make mistakes and included provisions for such events. The agreement provides that CIGNA will indemnify the State for any liability arising out of the performance of the agreement, unless the liability was “caused or materially contributed to by a mistake in judgment or computation of benefits under the program made in good faith and in the exercise of ordinary care and reasonable diligence.” (See Agreement, par. 7(d).) This is also evidenced by paragraph 7.3, which confers agency status on CIGNA and absolves it of any liability to third parties absent gross negligence, fraud or criminal conduct by CIGNA.

In the alternative, Claimant urges that the State had vested Ms. Gary with the apparent authority to bind the State. We have held that where the State vests a person with apparent authority to bind the State, and a claimant performs the services, the State cannot deny the person has the actual authority to bind the State (Wilson Electrical Co. v. State (1976), 31 Ill. Ct. Cl. 504; Volland v. State (1939), 10 Ill. Ct. Cl. 715). Claimant acknowledges that case law establishes a proposition that parties contracting with public entities are presumed to know their limitations in making contracts. However, there is nothing in the record to show that Dr. Sbigoli knew he was contracting with the State.

III. Respondents Case In Chief

In a September 28, 1994, telephone conversation, Ms. Gary told Claimant that the bone grafting and sinus augmentation would be covered at 80% for professional services and 65% for facility fees. No conclusion was made as to coverage of the dental implants. Ms. Gary told Claimant to send proof of medical necessity and that the claim was subject to review. In response to Claimants October 24, 1994, letter, Ms. Gaiy sent a fax dated November 7, 1994, stating that CIGNA was “unable to determine benefits without * * * x-rays.”

On November 22, 1994, Dr. Sbigoli had a telephone conversation with Maggie Vega, a customer service representative of CIGNA. Ms. Vega placed the call on hold and discussed the situation with Ms. Gaiy who told Ms. Vega that the nurses had not yet responded to the question of whether the dental implants would be covered. Ms. Gary presumes Ms. Vega informed Dr. Sbigoli that a determination had not been made.

On November 23, 1994, Ms. Gary called Dr. Sbigoli and left the message that benefits would be covered at 80% for professional service and 65% for facility fees for the sinus augmentation and bone grafting, but the dental implants would not be covered. She could not remember whether the message was left on voicemail or with a staff person. On November 29, 1994, Ms. Gary mailed a letter to Claimant memorializing essentially the same information.

Respondent argues that the dental implants were not covered by the State of Illinois medical plan and therefore Claimant is not entitled to reimbursement for this dental procedure. The Handbook contains two narrowly drafted circumstances that allow partial coverage of a dental procedure by the States medical plan. The two coverages are “for services necessary as a result of an accidental injury to natural teeth caused by an external force”; and “fees for room and board for medically necessary hospital admissions to perform dental services due to a medical condition such as heart disease or hemophilia.” The services rendered are not covered by either description.

Neither Ms. Gary nor CIGNA had the express or apparent authority to extend coverage for the placement of dental implants. CIGNA had only the limited authority to authorize “covered services,” as defined by the Agreement, under the medical plan. See Agreement, par. 1.5.

We have held that apparent authority of an agent cannot be used to bind the State. Black Knight Productions v. State (1998), 50 Ill. Ct. Cl. 406; Potter v. State (1983), 36 Ill. Ct. Cl. 26. It is well settled that the theory of quantum meruit does not apply against the State and oral or implied contracts are only enforced when provided in an emergency Melvin v. State of Illinois (1989), 41 Ill. Ct. Cl. 88.

The cases cited by Claimant are anomalies, briefly written with no citations, and have been superseded by later cases.

IV. Conclusion

The parties have stipulated that the witnesses are equally credible. Therefore, the testimony offered by each on disputed or ambiguous evidence must be given equal weight unless other evidence would tend to justify a different interpretation. There is no doubt that the length of time it took CIGNA to make its determination is unwarranted and caused some anxiety, if not confusion, amongst Alberta Davis and Dr. Sbigoli. Unfortunately, to be safe, the delay in making a determination by CIGNA and the absence of written confirmation of the alleged coverage should have caused a delay in the performance of services.

Dr. Sbigoli testified that Ms. Garys telephone conversation of November 23,1994, caused him to believe all services, including dental implants, would at a minimum be partially covered. He testified that one of his employees overheard this conversation. However, the testimony of this occurrence witness is not in the record. Ms. Gaiys testimony is that she did not have a telephone conversation with Dr. Sbigoli on November 23, but instead left a message. One could argue that her lack of recall whether she left the message with a staff person or on voicemail would draw the credibility of her recall into question. However, Exhibit No. 13, which is an online call tracking record maintained by CIGNA indicates that telephone call was made on November 23, 1994, and a message was left. It does not indicate that a telephone conversation was conducted with anyone in Dr. Sbigolis office. Essentially we are presented with a factual dispute as to whether the telephone conversation took place and: (1) if it did, what did Ms. Gary say; or (2) if it did not, what message did she leave. The only written evidence in relation to this factual dispute is Exhibit No. 13, indicating that a message was left and not indicating that a conversation took place.

The Court need not make a determination on the legal issue as to whether Ms. Gary or CIGNA had the authority to cause the State to be liable for a mistaken interpretation of the benefits available pursuant to the medical plan. However the provision of the Agreement, cited by Claimant in support of the proposition that Claimant had authority to bind the State, does not appear to grant that authority to CIGNA or Ms. Gary.

We find that Claimant has not met his burden of proof to establish that he was informed by CIGNA that the dental implants procedure was covered. Accordingly, we must deny the claim.

It is therefore ordered, adjudged and decreed that this claim is denied and forever barred.


author: Sommer, C.J.

text:
    (No. 97-CC-3039
    Bobby L. Byrd, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 3, 1997.

    Bobby L. Byrd, pro se.

    Jim Ryan, Attorney General (Christopher L. Higgerson, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

This claim arises on the Respondents motion to dismiss or, in the alternative, motion for summary judgment.

The Claimant is an inmate who seeks damages due to personal injuiy.

The Respondents motion states that the Claimant did not exhaust his remedies, as required by section 25 of the Court of Claims Act (705ILCS 505/25), as he filed no grievance with the prison authorities or the Department of Corrections. See McCormick v. State (1992), 44 Ill. Ct. Cl. 326.

The Claimant argues that to grieve his claim would be useless, as the Department of Corrections does not grant awards from its tort claims funds for pain and suffering or permanent injuiy.

We agree. The exhaustion of remedies provision of the Court of Claims Act does not require a claimant to pursue an alleged remedy that does not exist under any set of facts. Tunk v. State (1987), 40 Ill. Ct. Cl. 1.

To the extent that McCormick, supra, is inconsistent with our ruling in this claim, it is overruled.

It is therefore ordered that the Respondents motion is denied.


text:
    (No. 98-CC-1013
    William K. Perkins, Claimant, v. The State of Illinois, Respondent.

      Order filed July 24, 2000.

    William K. Perkins, pro se.

    Jim Ryan, Attorney General (Phillip McQuillan, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Epstein, J.

This is another in a sad series of claims by non-custodial parents, usually as here a father, seeldng a refund from the Respondents Department of Public Aid (“IDPA”) of an income tax refund that IDPA seized for supposedly overdue back child support, which Claimant now alleges here was not owed. In this case, the Claimant seeks $2,828.27, which he alleges to be the amount of his 1996 income tax refund plus 18% compounded interest, and his costs of filing suit in the circuit court against the mother of his child in his futile effort to obtain relief there.

This case is before us on the Respondent’s motion pursuant to section 2 — 619 of the Code of Civil Procedure (735 ILCS 5/2 — 619) to dismiss the claim which asserts (1) a jurisdictional failure to exhaust administrative remedies, as required by section 25 of the Court of Claims Act (705 ILCS 505/25) and our implementing rule (74 Ill. Admin. Code 790.60), and (2) lack of subject matter jurisdiction to review the intercept procedures of the IDPA (see, 42 U.S.C. 664; 305 ILCS 5/10 — 17.3, 10— 17.5, 5/210.5a; and 89 Ill. Admin. Code 160.70(c)), which is subject to judicial review only by the circuit court pursuant to the Administrative Review Law (the “ARL”). See 305 ILCS 5/10 — 17.3, 10 — 17.5; 735 ILCS 5/3 — 101 et seq; 89 Ill. Admin. Code 140.100 et seq.

As this Court has repeatedly held, the IDPA tax refund intercept procedure is outside the jurisdiction of this Court to review or to grant relief. The IDPA intercept procedure contains its own administrative review procedure, which includes judicial review by the constitutional courts under the ARL, which must be utilized by aggrieved claimants and which is the only procedure available to redress wrongfully seized tax refunds under IDPA intercepts (Serrano v. State (1999), 52 Ill. Ct. Cl. 367; Curwick v. State (1992), 44 Ill. Ct. Cl. 242.) Because the exclusive jurisdiction to review IDPA intercepts is vested in the circuit court under the ARL, this Court lacks jurisdiction over this or any claim seeking relief due to an IDPA intercept. Serrano, supra; Curwick, supra; see also, Gipson v. State (1999), 51 Ill. Ct. Cl. 54.

Wherefore, it is hereby ordered: This claim is dismissed for want of jurisdiction.


author: JANN, J.

text:
    (No. 98-CC-2699
    State Farm Mutual Insurance Co. a/s/o George and Carrie Tuthill, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 3, 2001.

    Garretson and Santora, Ltd. (James G. LasCola, of counsel), for Claimant.
    Jim Ryan, Attorney General (Donald C. McLaughlin, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

This cause is before the Court on Claimant State Farm Insurance Co., as subrogee of George Tuthill and Carrie Tuthill, against Respondent State of Illinois. The claim, sounding in tort, is based upon alleged negligence of Respondent in relation to the condition of a ramp from Glenwood Dyer Road on to State highway 394 in the city of Beecher. Jurisdiction is pursuant to section 8(d) of the Court of Claims Act. 705ILCS 505/8(d).

The Facts

Ms. Carrie Tuthill testified that on December 17, 1996, she was involved in an automobile accident. She was on the ramp from Glenwood Dyer Road attempting to enter the Southbound lanes of Route 394. She was traveling home from her grandmothers house in Dolton between 4:00 to 4:30 p.m. She drove on this road about three times a week for two years prior to the accident. There were two lanes on the ramp and she was in the right-hand lane.

There is a raised concrete median dividing Glen-wood Dyer Road and the entrance ramp. On prior occasions, she had noticed the median deteriorating. Ms. Tuthill stated that every time she went by the location during a seven-month period prior to the incident she noticed little chunks of concrete had fallen off the median. There were cracks inside and on the front of the median. She told her mother about the chunks of concrete and her mother gave her a telephone number. Although she could not remember who she called, she thought she reported the condition of the median to a police department, thinking it to be the State Police. She recalls speaking to a woman and was told that they would take care of it. The date of the telephone conversation was December 11, 1996. Her concern at the time was for her tires.

On December 17, Ms. Tuthill said she was about two lengths behind a “big semitruck” following it down the ramp and “all of a sudden [she] saw this big chunk * * # the only thing [she] did was step on [her] brakes immediately.” She was traveling at a speed of 45 to 50 miles per hour when she first saw the chunk. Although she was able to slow down before she hit it, her vehicle ran over the chunk. There was a big “boom” and the concrete lodged under the middle of her car.

After hitting the concrete, Ms. Tuthill put her car in reverse and was able to dislodge the chunk from under her car. She parked her car and examined the big chunk of concrete. “It was like a puzzle, it fit perfect, that chunk fit perfectly in that part of the median” stated Claimant. She could not lift the chunk and left it in the road.

The automobile was owned by Carrie and George Tuthill. The bill to repair the underneath and front bumper assembly of the Prizm totaled $2,073.11. It was necessary for her to rent a car to attend to her family’s needs during the time her Prizm was being repaired. A Ford Escort was rented at a total cost of $672. The Tuthills paid $500 of the repairs and $172 of the rental bill. State Farm Insurance Co. paid the rest.

Nicholas Haddad, a Region 1 litigation representative of the Illinois Department of Transportation (hereinafter “IDOT”), testified that his job responsibilities include the investigation of claims. He acknowledged that the subject entrance ramp to Route 394 is under the maintenance jurisdiction of IDOT; however, he noted that Glenwood Dyer Road is not the responsibility of IDOT. In Claimant’s case in chief, Mr. Haddad stated that there was not a procedure whereby the State Police forward an incident report to IDOT.

On February 6, 1997, Mr. Haddad sent a memorandum to the lead worker (synonymous for foreman) of the Bishop Ford Yard responsible for maintenance of the ramp in question, inquiring whether “they had any knowledge of the chunk of concrete in the median prior to the date and time of the incident.” The written response by Mr. Tavelette, of the Yard, is included in the department report. The February 20, 1997, response, states that the Yard was “not aware of any chunk of median prior [sic] to the date and time of the accident.” The response also indicates that the chunk of concrete was located in the median and an endloader was going to be used to remove it.

The Law

Both parties declined the opportunity to file briefs in this case. However, the legal principals guiding a decision in cases involving highway maintenance negligence allegations are well settled in this Court.

The State is not an insurer of the conditions of the highways under its control but does have a duty to the public to use reasonable care in maintaining its roadways in order that defective and dangerous conditions, likely to injure persons lawfully on the highways, shall not exist. (Hanawell v. State (1995), 47 Ill. Ct. Cl. 270, 274; Jacobs v. State (1996), 49 Ill. Ct. Cl. 16, 21.) To prevail, the Claimant must prove by a preponderance of the evidence that the State breached its duty and the breach was the proximate cause of the damage incurred by it. Claimant must establish that the State had actual or constructive knowledge of the alleged defect in the roadway where the accident occurred. (Jacobs at 22.) In denying relief to the claimant in Jacobs, the Court found the evidence was insufficient to establish that a defect in the roadway was the proximate cause of the accident. Id. at 22-3.

In Hanawell, the Claimant alleged that she hit a piece of concrete, eight to nine inches in length and about four inches wide and thick, in the roadway causing her to crash her motorcycle. The Court accepted the premise that the piece of concrete caused Claimants accident, however, the Court determined that there was no actual or constructive notice to the State (Id. at 276). The Hanawell court examined other cases involving debris on the highway and noted that when the evidence does not indicate the length of time the debris was upon the roadway, the State could not be charged with constructive notice. See, Wagner v. State (1978), 32 Ill. Ct. Cl. 50; Baker v. State (1989), 42 Ill. Ct. Cl. 110.

In Commercial Union Insurance Co. v. State (1995), 47 Ill. Ct. Cl. 301, the court stated that:

“The test to establish constructive notice is ‘where a condition by its evident nature, duration and potential for harm should necessarily have come to the attention of the State, so that the State should have made repairs.' [citing Scroggins v. State (1991), 43 Ill. Ct. Cl. 225.]”

The driver of a vehicle in Commercial Union struck a concrete slab, approximately 15 inches wide, eight to ten inches long and four to six inches deep, and destroyed the undercarriage of the vehicle. The court denied an award, finding that the condition did not establish constructive notice. Evidence was presented in the case, as was in Hanawell and Scroggins, that the State regularly patrolled the areas in question.

In the case at bar, Ms. Tuthill testified that for a period of seven months she traveled the same route three times a week and noticed the median deteriorating. She saw cracks and little concrete chunks. She was concerned about potential damage to her vehicle therefore she reported the condition of the median, six days before the accident, to an entity she believed to be the State Police. Although she did not describe the size of the chunk of concrete, she did indicate it was too big for her to move.

The State admits having a maintenance obligation for the ramp. The State does not deny a maintenance duty for the care of the median. There is no evidence that the State had actual notice of the defective or dangerous condition. The State has established that its agents were not aware of a sizable chunk of concrete on the roadway at the time of the accident. The State did not present any evidence of its knowledge, or lack thereof, of a deteriorating median. The State did not deny that the median was deteriorating. The State did not deny that the chunk of concrete struck by Ms. Tuthill was from the median.

The State’s agents apparently found the chunk of concrete and indicated it was large enough that it had to be moved with an endloader. There is no evidence of this portion of the highway being inspected by any agents of the State at any time.

Constructive notice is to be determined on a case by case basis. The Court finds that the size of the chunk, the potential harm from a deteriorating concrete median and the fact that Ms. Tuthill watched the median deteriorate for a lengthy period of time are sufficient to establish constructive notice. Respondent has failed to rebut Claimants prima facie evidence that the chunk came from the deteriorating median. The Court finds that the State has breached its duty of care and the breach caused the damage to the vehicle.

Claimant is hereby awarded a total of two thousand seven hundred forty five dollars and eleven cents ($2,745.11).


author: Mitchell, J.

text:
    (No. 99-CC-0331
    State Farm Mutual Insurance Co., Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 20, 2001.

    Steven Gertle and Associates, Ltd. (Allison L. Slomovitz, of counsel), for Claimant.
    Jim Ryan, Attorney General (Jill Otte, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Mitchell, J.

This subrogation action was brought by Claimant, State Farm Mutual Insurance Company (“State Farm”), to recover for amounts that it had paid on behalf of its insured, Orval I. Porter. On July 11, 1997, State Farms insured, Orval Porter, was travelling to the Auto Haus on Edens Expressway in his Toyota sport utility vehicle. Robert Braxton was a passenger in the car. Mr. Porter had entered the Edens Expressway at Wilson Avenue and was proceeding northbound in the right lane of traffic. As he went under the Elston Avenue bridge, a large chunk of concrete fell from the bridge, hit the roof of his car and fell through the windshield. The piece of concrete was approximately 15 inches square and weighed 65 lbs. The concrete hit Mr. Braxton in the chest, knee and ankle. Both Mr. Porter and Mr. Braxton were covered with glass from the windshield.

Mr. Porter pulled over to the side of the road and called 911. Mr. Porter did not seek treatment from the ambulance that responded, but Mr. Braxton was treated for approximately 45 minutes. The ambulance driver told them to go to the hospital and they went to Resurrection Medical Center, where they received treatment.

Immediately after the accident, the police officer investigating the accident showed Mr. Porter where the piece of concrete in question had fallen from the cross-beam on the Elston Avenue bridge. Two or three other pieces had fallen on the side. An incident report prepared by IDOT indicates that the concrete fell from tire fillet on tire outside beam and that there was additional loose concrete on the last beam which was later removed by IDOT.

The State does not dispute that the piece of concrete fell from the bridge or that Claimant sustained damages as a result of the incident. Rather, the State argues that it is not liable for the incident because it did not have actual or constructive notice of the condition.

While the State is not an insurer against all accidents which may occur by reason of the condition of its highways (Scroggins v. State (1991), 43 Ill. Ct. Cl. 225, 226), it has a duty to maintain highways in “reasonably safe condition” by using reasonable diligence in such maintenance. (Wing v. State (1977), Ill. Ct. Cl. 473, 476.) To recover on a negligent highway maintenance claim, a claimant must show that the State had actual or constructive notice of a defect. Piggot v. State (1968), 26 Ill. Ct. Cl. 262, 265-66.

Here, Claimant did not establish that the State had actual notice of concrete falling from the bridge; however, it argues that the evidence establishes that the State had constructive notice of the defective condition. Sarah Wilson, a civil engineer employed by IDOT, testified that the deck of the bridge is the concrete that sits on top of the steel beams. It also includes the underside since it is all part of the same piece of concrete. IDOT records reveal that the bridge in question was last inspected on March 3, 1997, four months prior to the incident. At the time of the March Bridge Inspection Report, the inspector gave the deck structural condition an element rating of “three,” with “one” being the worse and “five” being new. A rating of “three” indicates that the deck is in fair to good condition but that it has some problems. Problems noted on the report with respect to the deck include large areas of “scaling.” The report indicates that IDOT should “scale,” or check for and remove loose concrete or loose material from the underside of the bridge deck, within the year. Scaling locations were identified as “Bay 1 over lane 1,” “Bay 2 over lanes 1 and 2” and “Bay 4 over lanes 2 & 3” over northbound 1-94. Bays are the spaces between the beams on the underside of the bridge. The concrete in question fell from Bay 1 over lane 3.

Constructive notice is imputed to the State where a condition which by its evident nature, duration, and potential for harm should necessarily have come to the attention of the State, so that the State should have made repairs. (Scroggins, at 227-28.) Whether the State had constructive notice of a condition depends on the facts of each case. Stills v. State (1989), 41 Ill. Ct. Cl. 60, 62.

Respondent argues that it did not have constructive notice of the condition because “bay 1 over lane 3” was not specifically identified on the bridge inspection report as a scaling location. A similar argument was made in Robinson v. State (1981), 35 Ill. Ct. Cl. 185. In Robinson, the Claimant was injured when a piece of concrete fell onto her car while she was driving under a bridge. The State argued that, although it knew that the underside of the bridge was defective and that there was concrete falling from the underside of the bridge, those parts of the bridge were unrelated to Claimants accident and, consequently, the State did not have knowledge that the underside of the bridge in other areas was defective. This Court held that the State could be charged with knowledge of the condition because it had actual knowledge of a defective underside. Robinson, at 189.

In the present case, the State had notice that large areas of the underside of the bridge deck should be checked for loose concrete or loose material. Although the concrete in question did not fall from one of the bays noted on the inspection report, as noted in Robinson, “Respondent knew that the condition, unrepaired, would worsen. Notice of a defect of part of a bridge becomes notice of the potential defects of the rest of the bridge.” (Robinson, at 189.) Accordingly, the Claimant has established constructive knowledge on the part of the State.

The remaining issue is that of damages. A claimant has the burden of proving his damages with certainty. (Gildehaus v. State (1993), Ill. Ct. Cl. 176, 185.) Claimant is seeking damages in the amount of $2,842.13. Claimant introduced the following bills into evidence: a bill in the amount of $2,311.63 for repairs to the damage to Mr. Porters automobile; a bill from Resurrection Medical Center in the amount of $430.50 for medical treatment rendered to Mr. Porter; and a bill in the amount of $100 for medical treatment rendered to Mr. Braxton as a result of the incident. Mr. Porter testified that State Farm paid these bills, with the exception of $200 paid by Mr. Porter as his deductible. Based on the foregoing, Claimant has met its burden of proving damages. An award is made to Claimant in the amount of $2,842.13.

       Mr. Porter testified that after the accident, he took the piece of concrete home and weighed it.


text:
    (No. 00-CC-0928
    Ellean Nance, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 2, 2001.

    Ellean Nance, pro se.

    Jim Ryan, Attorney General (Michael Rocks, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Epstein, J.

Claimant Ellean Nances complaint against the Respondents Department of Corrections (“IDOC”) seeks compensation for having spent 15 days in segregation at the Stateville Correctional Center (“Stateville”) for a disciplinary charge that was later expunged. This claim is before the Court on the Respondents motion to dismiss the complaint and the record of the hearing before our Commissioner. The Claimant filed a reply to the motion to dismiss.

The Motion to Dismiss

On November 21, 1997, a disciplinary ticket was issued to Claimant for his failure to provide a urine sample for drug testing at the request of IDOC staff. On November 26, 1997, the Adjustment Committee found him guilty and imposed discipline comprised of loss of 15 days of good time, segregation for 15 days, a three-month demotion to C-grade and three-month loss of commissary privileges.

Respondent asserts that Claimant is seeking to have IDOC disciplinary action reviewed by the Court. Respondent cites White v. State (1997), 49 Ill. Ct. Cl. 187, for the proposition that the Court lacks jurisdiction to review IDOC s disciplinary and administrative policies. White stated that the disciplinary procedures at Stateville and their application to White are within the administrative discretion of IDOC, which is customarily exercised by the facility warden and staff. Id., at 189.

Claimant alleges that he went through the grievance procedures after the Adjustment Committee decision of November 26, 1997, which found him guilty of the charges included in the disciplinary ticket. On May 13, 1998, the IDOC Administrative Review Board (the “ARB”) recommended that the disciplinary report be expunged and the three months C-grade be deleted.

Claimant now seeks to recover damages he allegedly suffered while wrongfully in segregation, imposed by the Adjustment Committees decision, prior to the partial reversal by the ARB. On the facts alleged in the complaint, we must deny the motion to dismiss, and proceed to the merits on the evidence adduced at the hearing before our Commissioner.

The Facts

At the hearing, Claimant testified that he received a disciplinary ticket for not providing a urine sample, although he was refused a drink of water and given only five minutes to comply to the order to submit a sample, which he could not do. When the segregation discipline order was later expunged by the ARB, he had already served the 15-day segregation punishment. In recommending that the disciplinary report be expunged, the ARB decision states that, “[t]here is no information to indicate the inmate refused the order only that he could not provide the specimen and there is no indication that the appropriate amount of time was allowed for the inmate to provide a specimen.” The IDOC Director concurred with the ARB recommendation.

Claimant requested $1,500, an amount equal to $100 per day, as compensation for wrongfully putting him in segregation. Apparently, an inmate is moved in shackles when he is held in segregation. Claimant stated that he suffered emotional distress and mental anguish, in part because his family did not want to visit him during this time due to their dislike of seeing him in shackles. A letter from his father was offered as evidence of this portion of his claim.

Claimant arrived at the $100 amount because it was within the range of sums awarded by Federal courts for wrongfully confining prisoners to “Seg” time. Claimant cites the following cases in support of this proposition: Larkin v. Oswald (1975), 510 F. 2d 583 ($1,000 awarded for 12 days in segregation); Smith v. Ade (1983), 461 U.S. 30; Clarron v. Medium Security Institution [cite and date omitted] ($600 award for six days in segregation); Maxwell v. Mason (1981), 668 L. Ed. 361 ($1,400 award for fourteen days in “strip cell”); Crystal v. Ramsder [date omitted], 635 F. 12d 595 ($85 per day awarded for wrongful confinement in segregation); and Patterson v. Coughlin [date omitted] 205 F. 2d 564 ($100 per day awarded for 53 days in solitary confinement).

The Law

The jurisdiction of this Court is limited to those claims we are granted authority to “hear and determine” by section 8 of the Court of Claims Act. (705 ILCS 505/8.) The decision to impose discipline is within the administrative discretion of the IDOC. Complaints challenging an administrative discretion fail to state a claim upon which relief can be granted by this Court. (Hassen v. State (1997), 49 Ill. Ct. Cl. 134 (discipline for unauthorized movement); Holmes v. State (1978), 32 Ill. Ct. Cl. 275 (improperly deprived of television).) In White, the Court held that it does not have jurisdiction to review disciplinary and administrative actions by IDOC. 49 Ill. Ct. Cl. 187.

In this case, however, the Claimant does not attack the disciplinary procedures that were applied to him, nor does he attack the merits of a disciplinary decision. Instead, he followed the prescribed internal IDOC process for appealing his disciplinary action, and now seeks to obtain redress for punishment wrongfully imposed on him under the original disciplinary judgment that was reversed by higher IDOC authorities. This claim does not ask this Court to review IDOC discipline; instead it asks us to enforce the final IDOC decision by redressing the premature punishment that was imposed without waiting for the ARBs appeal decision.

In his Committed Persons Grievance Report, Claimant requested the DOC “revoke” the disciplinary action and pay him for his “segregation time or pay $50,000 restitution for violation of my State and Federal constitutional rights, punitive damages [unreadable].” The requested monetary relief was not addressed by the ARB or the Director. There is no indication that Claimant specifically requested it in any communication to the ARB. The minutes of the ARB meeting reference an interview with Claimant and a thorough review of his Master Record File, therefore it is presumed that the ARB was aware of the initial request for monetary relief, at a minimum. The ARB chose not to make an award to Claimant when it expunged the disciplinary report.

The record does not include any reference or allegations as to IDOC rules or practices when a disciplinary report is expunged. The record is silent whether IDOC is subject to any statute, rule or regulation that requires or permits compensation under the circumstances presented here. There is nothing in the record to explain the meaning of “expunged” or the ramifications of the ex-pungement. In Blacks Law Dictionary, “expunged” has the following definition:

«o * » t0 destroy or obliterate; it implies not a legal act, but a physical annihilation. To blot out; to efface designedly; to obliterate; to strike out wholly. [Citations omitted.]"

A decision by the Director to expunge a disciplinary report is an administrative or disciplinary decision wholly within the discretion of IDOC. On this record, the Court cannot ascertain if the ARB decision was a reversal on the merits, or a discretionary determination. In this Court, claimants have the burden to prove by a preponderance of the evidence that the State breached a duty (or violated an administrative rule) and that such breach or violation proximately resulted in damage to Claimant. The record is insufficient at this point to determine whether Respondent breached a duty or violated a rule so as to cause damage to Claimant.

This Court does not have the authority to impose punitive damages against Respondent, or to redress violations of Federal constitutional rights, over which we lack jurisdiction. Absent a showing that DOC disregarded a rule by not awarding monetary damages to Claimant when it expunged the disciplinary report, or that its decision or extrinsic evidence demonstrates that the original, expunged decision violated Claimant’s rights, the Court can not make an award. The Adjustment Committee found the evidence supported discipline and the ARB and the Director found the evidence did not warrant discipline. That difference in judgment does not establish that the original decision was illegal or wrongful or even an abuse of discretion. There is thus no basis shown for liability.

The record also falls far short of supporting, much less commanding, an award for emotional distress or mental anguish. Although the loss of various privileges are alleged by Claimant, e.g. law library, access to court, religious services, daily exercise, reading books of choice, and needless degradation is claimed, the Claimant did not establish nor offer evidence of any specific facts that could support his claim of damages suffered due to the loss of these privileges or the alleged degradation. There is no competent evidence of actual damages.

Claimant has not met his burden to show a breach of duty by Respondent or actual consequential damages suffered by him.

For all of these reasons, this claim is denied and forever barred.


text:
    (No. 00-CC-2707
    Steven Kent Luker, Claimant, v. The State of Illinois, Respondent.

      Order filed March 27, 2001.

    Steven Kent Luker, pro se.

    Jim Ryan, Attorney General (Mark E. McCullough, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Epstein, J.

This claim against the Respondents Department of Revenue (“IDR”) is for litigation expenses allegedly incurred by the Claimant in an administrative proceeding against the IDR on the Claimants request for a tax refund, which was ultimately granted. Claimant brings this claim under section 10 — 55(a) of the Administrative Procedure Act (5 ILCS 100/10 — 55(a)), and asserts jurisdiction in this Court under section 8(i) of the Court of Claims Act. 705 ILCS 505/8(i).

This claim is before us on the Respondents motion for summary judgment, to which the Claimant has not responded, which asserts a failure to state a cause of action under the statute.

Respondents point is well taken. We need look no further than the language of section 10 — 55 which plainly applies that fee-shifting statute to and only to “* # # any contest [administrative] case initiated by any agency * * That is limiting language and it manifestly does not include administrative proceedings initiated against an agency by a citizen, as Claimants taxpayer claim against the IDR undisputedly was in this case. The statute simply does not apply to this circumstance.

There are no disputed material facts. Claimants alleged litigation expenses were not incurred in a proceeding that is covered by section 20 — 55(a) of the Administrative Procedure Act, and his complaint must therefore be dismissed for failure to state a cause of action under this statutoiy fee-shifting provision.

Wherefore, it is hereby ordered: Summary judgment is granted to the Respondent; and this claim is denied and forever barred.


text:
    (No. 00-CC-3947
    Carolyn Leslie, Claimant, v. Illinois Teacher’s Retirement System, Respondent.

      Order filed October 31, 2000.

    Pomper and Goodman (Joseph L. Blewitt, of counsel), for Claimant.
    Cassidy, Schade and Gloor (Richard Korn, of counsel), for Respondent.
   ORDER

Epstein, J.

This personal injury complaint alleges that the Claimant Carolyn Leslie was injured by falling ice and snow on the sidewalk in front of the Holiday Inn Hotel at 300 East Ohio Street in Chicago. Claimant alleges that the Holiday Inn Hotel was owned and operated by the Respondent Teachers Retirement System of the State of Illinois (the “TRS”), and that the TRS as owner was negligent.

This claim is before the Court on the motion of the Attorney General, on behalf of the Respondent, to dismiss this claim with prejudice for failure to file the required notice of intent with the clerk of this Court and the office of the Attorney General within one year from the date the alleged injury was received or the cause of action accrued, unless the complaint itself is filed within one year, as required by section 22 — 1 of the Court of Claims Act (705 ILCS 505/22 — 1), which this claim was not.

The Court need not and does not reach the issue of the statutory bar urged by the Respondent’s motion to dismiss, because this claim must be dismissed for want of subject matter jurisdiction.

This personal injury claim seeks redress from the State for a liability of the TRS in its capacity as an owner of property. In the absence of any contrary allegations in the complaint, the Court presumes that TRS ownership of property is necessarily in its capacity as trustee of the TRS pension fund, which owns the property in this case, but which is not a State fund. The TRS in its capacity as fiduciary of an employee pension fund is not a State agency, and a suit against the TRS pension fund is not a suit against the State, over which this Court has jurisdiction under section 8 of the Court of Claims Act. (705 ILCS 505/8.) Board of Directors of 345 Fullerton Parkway Condominium Ass’n. v. Teachers Retirement System (1998), 50 Ill. Ct. Cl. 396.

Wherefore, this claim is dismissed for lack of jurisdiction, with prejudice.


author: Raucci, J.

text:
    (Nos. 00-CC-4512, 00-CC-4521 cons.
    Teamsters, Chauffeurs, Warehouseman & Helpers Local Union No. 525, Angela Garde and Christopher Kahn, Claimants, v. Board of Governors of Southern Illinois University, Respondent.

      Opinion filed April 3, 2001.

    Cavanagh and O’Hara (Patrick J. O’Hara, of counsel), for Claimants.
    Lucy Singer, for Respondent.
   JOINT OPINION

Raucci, J.

These are actions to compel arbitration of employment disputes under a collective bargaining agreement (the “CBA”) between a State university and a union. These cases are matters of first impression in this Court.

Nature of the Claims

The Claimants seek orders directing the Respondent University (the “University”), as employer, to submit to arbitration of these disputes in the arbitration forum designated in the CBA. The employee-Claimants and their union contend that the CBA grants them the right to arbitrate their employment “grievances” as the final stage of the contractual grievance procedures. The University maintains that the CBA expressly excludes these suspension disputes from the grievance arbitration provision. The arbitrability issue is thus a matter of interpretation of the parties’ agreement.

These claims and the parties’ labor contract are governed by the Illinois Public Labor Relations Act (the “IPLRA”) (5 ILCS 315/1 et seq.), rather than by the Illinois Educational Labor Relations Act (the “IELRA”) (115 ILCS 5/1 et seq.) which governs most labor relations of the State colleges and universities, because the Claimant-employees are “peace officers employed by a state university” who are excluded from the IELRA (115 ILCS 5/2(b)) and included under the IPLRA. 5 ILCS 315/3(n).

Labor Contract Cases in this Court

This is the first time this Court has been asked to decide an issue under a State labor contract, although the IPLRA and IELRA, which together first authorized collective bargaining by State (and local) public employees in Illinois, have been law for almost 17 years. (See, Public Act 83-1012 (enacting the IPLRA) and Public Act 83-1014 (enacting the IELRA), both effective July 1, 1984.) Both Acts provide for CBAs with, inter alia, State agencies and instrumentalities that are subject to this Courts exclusive jurisdiction under section 8 of the Court of Claims Act. 705ILCS 505/8.

The absence of IELBA labor cases in this Court is explained by our Supreme Courts decision in Board of Education of Warren Twp. High School Dist. 121 v. Warren Twp. High School Federation of Teachers, Local 504 (1989), 125 Ill. 2d 155, 131 Ill. Dec. 149, 538 N.E.2d 524, which held that the Illinois Educational Labor Relations Board has “exclusive primary jurisdiction” (emphasis added by the Supreme Court) over contract arbitrability disputes under the IELRA, and that the administrative jurisdiction of that Board trumps the constitutional jurisdiction of the circuit court. Assuming that the Educational Labor Board’s jurisdiction would also trump the statutory jurisdiction of this Court, it is unsurprising that this Court has not seen IELRA cases.

This case, however, is governed by the IPLRA rather than the IELRA. Although the Supreme Court sharply distinguished the IPLRA from the IELRA (for purposes of the jurisdictional contest between the courts and the labor board) in Warren Twp. High School, supra, 538 N.E.2d at 527, 131 Ill. Dec. at 152, relying on its prior analysis in. Board of Education v. Compton (1988), 123 Ill. 2d 216, 122 Ill. Dec. 9, 126 N.E.2d 149, neither that decision nor any later decision has addressed the jurisdictional issues under the IPLRA — either as between the courts and the State and Local Labor Relations Board, or as between the constitutional courts and this statutory Court. The absence of IPLRA cases in this Court for the past 17 years is not explained by published judicial precedent.

Claimants’ Jurisdictional Arguments

We questioned our jurisdiction over these labor contract disputes and whether we must defer to the appropriate labor relations board. None of the parties challenges our jurisdiction.

The Claimants predicate jurisdiction on section 8(c) of the Court of Claims Act (705 ILCS 50578(c)), our “contracts” jurisdiction, which authorizes this Court to “hear and determine” claims “founded upon any contract entered into with the State of Illinois,” which encompasses contracts of the State colleges and universities. Claimants advance the straightforward theory that the arbitrability issue is a matter of interpretation of a State contract which is well within the terms of section 8(c) and a well-settled function of this Court.

Claimants also contend that because these parties’ labor “relationship # ” is subject to the [IPLRA] * * which “* * * provides [in section 5 of the ILPRA, 5 ILCS 315/8] that the grievance and arbitration provisions of collective bargaining agreements are also subject to the Uniform Arbitration Act” (the “UAA”) and because the UAA provides for arbitrability to be determined by the courts (unless the issue is referable to the arbitrator under the standards laid down in Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr (1988), 124 Ill. 2d 435, 530 N.E.2d 439, 125 Ill. Dec. 281, this Court is the proper and exclusive forum to adjudicate arbitrability when, as here, the labor agreement involved is a State contract. (See, Claimant’s “Memorandum s * * Regarding Jurisdiction” in No. 99-CC-4521, at 3, note l.)

Claimants thus assert that this Court is the exclusive forum for determining arbitrability — and presumably all other contract issues — under all State labor agreements governed by the IPLRA.

Jurisdictional Analysis

We agree that our jurisdiction under section 8 of the Court of Claims Act covers this contract and this arbitrability issue, and that therefore this Court has prima facie “exclusive jurisdiction” to adjudicate this State contract dispute. However, this threshold determination does not resolve the issue.

This Courts comprehensive review of the statute governing this labor contract — which neither the Claimants’ counsel nor the Respondents’ counsel apparently did — discloses two related provisions that fundamentally alter the jurisdictional analysis. Sections 16 and 25 of the IPLRA (5 ILCS 315/16 and 315/25) read as follows:

“§16. Exhaustion of nonjudicial remedies. After the exhaustion of any arbitration mandated by this Act or any procedures mandated by a collective bargaining agreement, suits for violation of agreements * * 5 between a public employer and a labor organization representing public employees may be brought by the parties to such agreement in the circuit court in the county in which the public employer transacts business or has its principal office.
« « *
§25. For purposes of this Act, the State of Illinois waives sovereign immunity.”

The General Assembly has also specifically exempted suits under the IPLRA from the State’s statutory sovereign immunity. See, section 1 of the State Immunity Act, 745 ILCS 5/1.

These enactments make it clear that the circuit court has jurisdiction to adjudicate these arbitrability issues— and all contract issues arising out of IPLRA labor agreements — even when the public employer is the State and even when the State is sued as a defendant. The legislative intent that the constitutional courts can decide these IPLRA claims against the State is unmistakable.

The issue of this Court’s jurisdiction over IPLRA contract claims thus turns into a novel question in Illinois: What is the effect of the statutory allowance of circuit court jurisdiction over these claims upon the “exclusive jurisdiction” of this Court over the same claims?

Analytically, there are three possible outcomes: (1) the Court of Claims has concurrent jurisdiction with the circuit court over contract disputes governed by the IPLRA, as the statutes effectively grant jurisdiction to both courts; or (2) the specific “exclusive jurisdiction” of the Court of Claims under section 8 of the Court of Claims Act (705 ILCS 505/8) over State contracts trumps the general jurisdiction of the circuit court when sovereign immunity no longer bars that general jurisdiction, or (3) the later statutory waiver of sovereign immunity, allowing circuit court adjudication of State IPLRA contracts, trumps the statutory “exclusive jurisdiction” of the Court of Claims over those State contracts, despite the absence of an express statutory exception in section 8.

In these cases, we need decide only whether outcome (1) or (3) is the statutory result, i.e., whether this Court retains concurrent non-exclusive jurisdiction or whether the legislature has divested our section 8 jurisdiction over State IPLRA labor contracts.

At the outset, we are forced to conclude that there is a statutory conflict — between the “exclusive jurisdiction” provision in the Court of Claims Act and the IPLRA authorization of circuit court jurisdiction — as applied to claims against the State on State labor contracts governed by the IPLRA. There is simply no way to fully reconcile “exclusive” jurisdiction in one court with simultaneous jurisdiction in another court over the same subject matter. Once the circuit court has jurisdiction, as this Court must and does recognize, this Court’s jurisdiction cannot be “exclusive.”

Thus, whatever else may be uncertain, it is clear that the legislature has superseded (or impliedly repealed) the “exclusive” aspect of our section 8 jurisdiction over State IPLRA contracts. The question we must now decide, of course, is whether these 1984 statutory enactments did anything else to our jurisdiction. This is not an easy issue of statutory construction.

There is no obvious historical antecedent that might provide guidance to the resolution of this statutory conflict. We are unaware of any previous example of the General Assembly having relaxed Illinois’ sovereign immunity to permit circuit court adjudication of a claim against the ■ State that was already committed to this Court’s “exclusive” jurisdiction. We find no precedent for concurrent jurisdiction of this Court with another court or agency; this statutory Court has always been given specific and exclusive jurisdiction over narrowly-defined subject matter.

The legislative intent is not clarified by the statutory language in either of the conflicting acts. There is no mention of this Court or of the Court of Claims Act in the IPLRA. The Court of Claims Act was not amended to affect or clarify this Court’s section 8(c) “exclusive jurisdiction” over suits against the State on State contracts, as one would expect when an inconsistent statute is enacted that affects the prior statute. Similarly, we have found no guiding Illinois judicial precedent involving a similar jurisdictional dispute between this Court and the circuit court. The closest guidance we have found is the Warren Twp. High School decision, supra, which involved a court-agency jurisdictional issue (under a different statute, and involving the doctrine of primary jurisdiction) rather than a court-court jurisdictional issue as here.

Looking first to the statutes, we observe that the conflict between the IPLRA and the Court of Claims Act, on its face, does not extend beyond the issue of exclusivity as to this one class of contract disputes. The statutory construction principle of reconciling inconsistent statutes to the maximum extent feasible, in order to give effect to as much of the legislative language and intent as possible, militates for result number 1: concurrent jurisdiction. Indeed, the legislative failure to amend our jurisdictional statute (section 8 of the Court of Claims Act) to add an exception for IPLRA contract disputes — just as an exception was added to the Immunity Act — is an indication of legislative intent not to divest our jurisdiction.

However, that reasoning is contradicted by the legislatures failure to resolve the obvious conflict between the two statutes — on the “exclusivity” issue — by legislation amending our section 8 jurisdictional language. We are reluctant to assume that this was a legislative oversight. Nevertheless, in this case, the negative inference drawn from this legislative omission is not compelling. If we are guided by the statutory language, we must give weight to the fact that our Act after 17 years still grants the section 8(c) jurisdiction that — exclusive or not — covers this contract dispute.

On the other hand, the IPLRA language, particularly the waiver of sovereign immunity in section 25 of the IPLRA and the companion amendment to the State Immunity Act, are extraordinary legislative enactments that are untraditional in Illinois. These must be taken to reflect a strong and unequivocal legislative intent to have the circuit court (and thus, ultimately, the Illinois reviewing courts) decide this class of labor contract disputes-— or, at a minimum, to allow the parties to elect to take their dispute to the constitutional courts in lieu of this Court. That said, the correct result remains unclear.

We find guidance in the Supreme Courts analysis in Compton, supra, and Warren Twp. High School, supra, although we recognize the several points of distinction between the issues there and the issue here. The reasoning of those decisions seems applicable here.

In both opinions, our Supreme Court relied heavily on the absence of UAA provisions in the IELRA and the incorporation-by-reference of the UAA in the IPLRA as a fundamental distinction between the two statutes and as a legislative prescription of the methods of enforcement of these statutory schemes. That statutory difference leads the Court to conclude that the plenary constitutional jurisdiction of the circuit court was completely pre-empted by the IELRA (in favor of the Educational Labor Board). The Court focused on the provisions of the IELRA, which

“explicitly providedfs] for enforcement of arbitration awards in accordance with the Uniform Arbitration Act 0 * * all proceedings to compel arbitration, to stay arbitration, to seek vacation of an award, or to enforce an award are through the circuit court." Board of Education v. Compton, supra, at 123 Ill. 2d 216, at 222, excerpted in Warren Twp. High School, supra, 583 N.E.2d at 527, 131 Ill. Dec. at 152.

The Supreme Court found that the absence of these provisions in the IELRA “strongly suggests that the legislature did not intend review of arbitration awards by the circuit court, even as to ‘arbitrability’” Compton, ibid., quoted in Warren Twp. High School, ibid. Here, the presence of these provisions in the IPLRA, together with the explicit allowance of circuit court jurisdiction, strongly suggests to this court that the legislature intended that Court and not this Court to adjudicate enforcement issues under the IPLRA. This conclusion is also compellingly supported by the jurisdictional inability of this Court to give full relief “for enforcement of arbitration awards” when that requires injunctive relief, as it often does, which this Court lacks the authority to grant. Gabriella v. Board of Trustees of the University of Illinois (1996), 50 Ill. Ct. Cl. 350.

Finally, the Supreme Courts reasons for rejecting concurrent jurisdiction between the circuit court and the administrative labor board (construing the IELRA) in Compton and in Warren Twp. High School applies fully to the present issue under the IPLRA:

“Finally, we agree * * * that vesting dual jurisdiction over arbitration awards in the Board and the circuit courts [sic] would invite ‘conflicting judgments and forum shopping’ which would imperil the uniformity which the Act obviously seeks to achieve.” 123 Ill. 2d at 222, 122 Ill. Dec. 9, 526 N.E.2d 149. Warren Twp. High School, ibid., quoting Compton.

The uniformity point applies with greater force here than in Warren Twp. High School, because there is no appeal on the merits from this courts decisions, whereas in the Warren Twp. High School case, section 16(a), the IELRA (115 ILCS 5/16(a) provides for an administrative review appeal to the Appellate Court, and thus on to the Supreme Court, so there was an appellate mechanism for achieving uniformity there. If this Court had concurrent jurisdiction, there would be no established means for a litigant to secure the “uniformity that the Act * * * seeks.”

Thus the Supreme Courts reasoning as well as its ultimate conclusion in Warren Twp. High School, supra, and Compton, supra, construing the IELRA to provide a single jurisdictional route to enforcement, leads this Court to conclude that the General Assembly similarly intended a single jurisdictional path for enforcement of the IPLRA and labor agreements thereunder, and that path plainly leads to the circuit court and not to this Court.

Finally, this result accords with the underlying historical purpose of this Court. Although the legislature over the years has delegated jurisdiction to this Court over a number of disparate and unrelated subjects (see, e.g., sections 8(f) and 8(h) of the Court of Claims Act, 705 ILCS 505/8(f)-(h)), the primary purpose of this Court was and remains to “hear and determine” claims against the State that are barred in the constitutional courts by sovereign immunity. (See, sections 8(a) and 8(d) of the Court of Claims Act.) Thus, when the bar of sovereign immunity is dropped by the legislature for some specified class of cases, as it has been in section 25 of the IPLRA "for purposes of this Act,” the suggestion, if not the presumption, is that the General Assembly no longer found a reason for committing such matters to the “exclusive jurisdiction” of this statutory Court.

If our reading of the legislative intent of the IPLRA turns out to be incorrect, despite the General Assembly’s long acquiescence in the Supreme Court’s 1988 (Compton, supra) and 1989 (Warren Twp. High School, supra) rejection of concurrent jurisdiction under the IELRA, the legislature can readily clarify these statutes, but in the interim these Claimants and the University have a clearly available Illinois forum in the circuit court for the resolution of their arbitrability dispute. Our denial of jurisdiction over this IPLRA labor contract dispute will not deprive any party of a remedy.

Conclusion

For the foregoing reasons, it is hereby ordered:

1. These claims are dismissed for lack of subject matter jurisdiction, without prejudice to any action in another court;
2. This order shall be entered in both No. 00-CC-4512 and No. 00-CC-4521.

       In paragraph 2 of their complaints, claimants asserted jurisdiction of this court “pursuant to*** [the] authority” of Local 3236 of the Ill. Fed. of State Office Educators, IFT-AFT, AFL-CIO (1st Dist. 1984), 121 Ill. App. 3d 160, 459 N.E.2d 300. That decision, however, antedated the IPLRA, which governs these cases.

       These obvious and startling provisions of the governing statute were not brought to this Courts attention in tire parties’ briefs nor at the oral argument. There is a lesson here for lawyers — and for judges: The analysis of a case always requires a fresh and complete review of all applicable statutes.


text:
    (No. 97-CV-0010

      In re Application of Jeanette Wine

      Order filed September 29, 2000.

    Jeanette Wine, pro se.

    Jim E. Ryan, Attorney General (Ronald G. Stradt & Lori Crenshaw, Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Raucci, J.

This cause comes on to be heard on the Claimants request for hearing filed after our May 6,1998, order denying the claim for compensation after a shooting, on the ground that the Claimant had engaged in conduct that contributed to her injury to such an extent as to warrant the denial of the claim.

The Court finds:

1. Pursuant to Claimant’s request for hearing, the hearing was held on May 7, 1999. The Claimant did not appear but was present through her mother, Ernestine Wine, and her aunt, Faye We. The Commissioner was advised that the Claimant could not appear due to her physical condition and that she was in a nursing home unable to attend the hearing.

Claimant’s aunt was called to testify but denied that she had anything to say and was accompanying Claimant’s mother for “moral support.” Claimant’s mother testified that denial of her daughter’s benefits was predicated in part on her conduct as a prostitute, and that there was no proof of that. She testified that her daughter lived in Chicago and she lived in Mississippi, but that as far as the mother knew, the daughter was not a prostitute. It was further the position of the mother that the theft of an electronic pager was not sufficient to justify the injury to her daughter and that, in any event, no electronic pager was found in her daughter’s possession after the shooting.

2. The Crime Victims Compensation Act (740 ILCS 45/1 et seq.) provides that an award shall be reduced or denied according to the extent to which the victim’s acts or conduct provoked or contributed to his injury or death, or to the extent to which any prior criminal conviction or conduct of the victim may have directly or indirectly contributed to the injury or death of the victim.

3. The investigation revealed that the victim had been paid by the alleged offender to engage in a sexual act and that, following the act, the victim stole the alleged offender s electronic pager and fled from the offenders automobile. He pursued the victim, and during the pursuit shot the victim. The evidence clearly establishes that the victim’s injury arose as a result of her conduct in performing an illegal sex act, and then theft. Her conduct provoked or contributed to her injury.

4. The statute gives us no choice but to deny the claim.

It is therefore ordered, adjudged and decreed that the Claim be, and is hereby, dismissed.