author: Frederick, J. Frederick, J.

text:
    (No. 92-CC-1579
    Samuel A. Barnes, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 25, 1995.

      Order on petition for rehearing filed November 16, 1995.

    Carl M. Walsh and Lonny Ben Ogus, for Claimant.
    Jim Ryan, Attorney General (Cara L. Smith and Colleen McMcloskey Von Ohlen, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Samuel A. Barnes, brought this cause of action against the Respondent, State of Illinois, seeking mandamus and alleging breach of contract. Claimant alleged that on May 14, 1990, his employment was terminated by the Illinois Department of Mental Health and Developmental Disabilities (hereinafter “Department”), and that his termination was in violation of the Illinois Administrative Code and the appropriate employee handbook.

A hearing was conducted on this matter before Commissioner Hanley.

The Facts

The department made a decision to terminate the Claimant, Samuel Barnes. An employees handbook entitled The Policies and Regulations Affecting Personnel of the Department of Mental Health and Development Disabilities Employee Handbook (hereinafter the “handbook”) was given to Mr. Barnes at the time he was hired. Mr. Barnes certified that he received a copy of the handbook on April 1, 1987, and that he understood that compliance with these policies and regulations was a condition of employment and he further understood that violations of any department policy or regulation could result in disciplinary action up to and including the loss of his job. The introduction page of the handbook stated that Mr. Barnes was expected to know these policies and abide by them, that certain types of behavior could lead to discharge, and that the handbook was in effect in May of 1990 and applied to Samuel Barnes.

Mr. Barnes violated provisions in the handbook which led to him being terminated on or about May 14, 1990. He violated the policy at page 14 which states that the employee may be discharged if the employee uses or possesses narcotics or alcohol or other habituating drugs while on duty or while off duty in such manner as to bring adverse criticism on the department.

Several people in addition to Mr. David Himpelmann, the labor relations administrator, contributed to the decision to fire Mr. Barnes, including the acting director of the department, William Murphy; chief of the employee and labor relations section in the central office, Phil Moore; Della Klevs, the facility director; Dale Awick, physical and support director at tire Kiley Center; and Carl Baker, Claimants immediate supervisor. These named persons had a copy of a newspaper article which indicated Claimant had been arrested for possession of, and dealing, cocaine. The departments internal security investigator provided them with a case number or an arrest warrant number and a copy of the warrant. There was no evidence of Mr. Barnes possessing or using alcohol or narcotics or other habituating drugs while on duty. They knew that he was not on duty when he was arrested and the newspaper article did not mention where Mr. Barnes worked.

Mr. Barnes was not referred by Mr. Himpelmann or anyone else in the department to the employees assistance program coordinator for treatment. Paragraph 2 under “Procedure” (referring to the handbook) specifies that an employee who demonstrates a problem with alcohol, narcotics or other habituating drugs shall be referred to the substance program coordinator. A letter was sent to Mr. Barnes asking him to appear for a predisciplinary meeting on May the 9th, which was held on May 11th at Claimant’s request. At the meeting, no reason for Mr. Barnes’ termination was stated except for his arrest.

David Himpelmann was the labor relations administrator of the Ann M. Kiley Center and had been for roughly 13 years. Mr. Himpelmann identified the form entitled Recommendation for Suspension/Discharge of an Employee, which he completed, recommending discipline. He corrected paragraph 2 by noting that suspension pending judicial verdict does not apply to an exempt employee. There was no mention of adverse criticism of the department.

Mr. Carl Baker, plant maintenance engineer, had served in that position for 10 years and was Mr. Barnes’ supervisor on May 1, 1990. Mr. Baker identified and acknowledged that he had signed the recommendation for discharge form where it says, “Home Manager/Immediate Supervisor.” He was at the May 11, 1990, meeting with Carl Walsh, Claimant’s attorney. The meeting was conducted by David Himpelmann.

Mr. Baker identified a memo to him from Mr. Summerford giving him the status of Mr. Barnes on May 4, 1990. The memo does not contain anything about adverse criticism to the department concerning Mr. Barnes’ arrest.

Upon cross-examination, Mr. Baker testified that Mr. Summerford was in the habit of sending him memorandums concerning his employees in the department. The memo states that a copy of the warrant is attached and that he actually saw the warrant. Mr. Summerford called Lake County Court and found out the status of his employee and passed it on.

Claimant testified that he started working for the State of Illinois in the department in Waukegan from May of 1979 until he was terminated on May 14,1990.

Mr. Barnes identified his signature on the certification page for receiving the handbook. He was given the handbook at the time he was asked to sign the certification page and he read through the handbook when he received it. The handbook gave him conditions of his employment. It said things he was expected to do and not to do and told him when he might be fired. It had a list of various things which were against policy that allowed for disciplinary action leading to dismissal. The handbook goes through a whole list of various conduct which could lead to discharge. He did not start looking for any other jobs because he could meet those guidelines and do a good job. The handbook meant that he had an agreement with the State for employment.

Mr. Barnes testified that in May, 1990, he was making approximately $20.25 per hour. He now makes $22.60 per hour as a union carpenter. After May 11,1990, he was ready, willing and able to go back to work.

Carl Baker testified for the Respondent that he had been employed by the Department of Mental Health for 30 and a half years. His current title is plant maintenance engineer 2 and he started at the Kiley Center, a 55-build-ing, 430-bed retardation center in Waukegan, in 1974. The facility serves mentally retarded patients and some dual-diagnosis mentally retarded and mentally ill patients. There are 48 residential homes, each consisting of four bedrooms, living room, dining room, kitchen, two bathrooms and a nurses station. Medical nurses are in these facilities and medication is kept in each home and in the pharmacy and administration building.

Mr. Baker supervises carpenters and they are allowed to go in residential homes to perform their duties. He knew Claimant when Claimant first started working there in 1979 and when Claimant came back in 1987. From 1987 until Claimants discharge in 1990, he was Claimants direct immediate supervisor. He was aware of Claimants job performance and observed him daily. In his opinion, Claimant did not stay within the guidelines of the employee handbook. Mr. Barnes was referred to the employee assistance program coordinator for counseling for alcoholism two or three months before May.

Mr. Baker identified a three-page Respondents group exhibit number 1. The first page was a memorandum dated October 13, 1989, from Mr. Baker to Sam Barnes. It was Mr. Bakers practice to keep this memorandum in the regular course of business. He had a problem with Claimant’s absenteeism and put him on the proof of status for three months from the date of the memorandum. He continued the proof of status for another three months.

The third page of Respondent’s group exhibit number 1 is a written reprimand for misuse of time. The memorandum serves as documentation of the days when Claimant had an unauthorized absence or was tardy. Unauthorized absence is when someone is absent and has not been authorized and they do not have the time on the books to take off. “XA” is unreported absence or is when someone is off and they don’t call in. The memo shows that Claimant had two unauthorized absences, two unreported absences, and 22 instances of tardiness.

Mr. Baker identified Respondent’s exhibit number 2 as a May 5, 1990, written reprimand to Barnes for pushing a co-worker in a confrontation on April 28, 1989.

Mr. Baker identified Respondent’s exhibit number 3 as an October 13, 1989, memo he had written to Claimant. Two other tradesmen had told him that Claimant had thrown a drill against the wall and it no longer worked. Claimant violated a rule against destruction of State property.

Mr. Baker identified Respondent’s exhibit number 4 as a written reprimand for Mr. Barnes for leaving the grounds for 21 minutes without punching out on October 13,1989.

Mr. Baker was aware that Claimant was discharged from the Department of Mental Health for possession and dealing of narcotics. He found out that Mr. Barnes was arrested for the possession and dealing of narcotics from Mr. Summerford.

Upon cross-examination, Mr. Baker testified that none of the prior disciplinary actions listed on Respondent’s exhibit numbers 1, 2, 3 and 4 were listed as a cause for the discharge. He was at the meeting on May 4,1990, and at that meeting none of those documents were shown to Claimant nor were they discussed.

Samuel Barnes, the Claimant, identified Respondent’s exhibit number 5, a CMS-2 form, with his signature on the bottom. In box number 7 of the form, under the transaction on line 1, it says “exempt appointment.” He understood an exempt appointment to be one in which he didn’t have to take an exam to get the job.

Mr. Barnes testified that on May 1, 1990, he was arrested for the possession of a controlled substance and unlawful delivery of that substance. The substance was cocaine and he pled guilty to that offense. His sentence was four years and he served 18 months of that sentence. It was a felony conviction.

Mr. Barnes is familiar with the employee policy that you are not to abuse alcohol or any narcotics while on duty and you are not to bring any adverse criticism to the department. His arrest was publicized in one newspaper which did not mention where he worked.

The employee handbook governed the conditions of his employment and he understood that as long as he stayed within those conditions, he would remain employed. He did not go back to work the day after his arrest which was May 2, 1990. Claimant was not sure if his sister called in and said he was sick. He was in the Lake County jail until 10 o’clock in the morning and he was ill with emotional distress.

Mr. Barnes was familiar with the policy regarding damage to State property and the wall he threw the drill at was a wooden wall. Claimant testified that the drill did not get damaged so that it would not work any longer because he repaired the drill himself.

Mr. Barnes did not grieve the discharge with the department. He did not appeal his grievance to the Department of Central Management Services. Mr. Barnes testified that based on his knowledge of the handbook he believed that, because he was not a union carpenter, he did not have the opportunity to pursue a grievance.

Mr. Barnes did not talk to David Himpelmann or anybody to clarify exactly what his position as an exempt status was with the center because he felt he understood his rights and responsibilities as contained in the handbook.

Upon cross-examination, Mr. Barnes testified that he has seen only one newspaper report concerning his arrest. It did not mention anything about his working for the State of Illinois or any department thereof. He acknowledged receiving a letter dated May 4, 1990, notifying him of a predisciplinary meeting. He believed he might be terminated. On May 11, 1990, he went to the meeting with his attorney, Mr. Walsh.

Mr. Barnes testified that at the predisciplinary meeting, no one said he did anything wrong. The facility director was Della Klevs. The letter dated May 4, 1990, from Della Klevs to him said she was giving him this opportunity to respond to the charges at the predisciplinary meeting.

Dave Himpelmann testified that he had been employed by the department a little over 17 years. A labor relations administrator, a position he has held for approximately 13 to 15 years, served as the liaison between management supervisory staff and employees and their representatives, primarily tiying to resolve problems that occur based on conditions of employment.

Mr. Himpelmann testified that he is familiar with the different categories of employees at the facility and is basically familiar with the definition of an exempt employee. An exempt employee is one who serves at the will of the department. They serve in an exempt status which means that they can be terminated for almost any reason.

The event which led to the discharge of Barnes was his arrest on May 1, 1990. His act warranted discharge because the department believed, in general and through discussion with the central office and relations chief, it was the type of an arrest that can bring adverse criticism on the department and that it raises reasonable doubts about that persons ability of continued employment. The center is responsible, and has to answer, to parents of all of the recipients of service at the facility. It needs to comply with standards of accreditation by the accreditation counsel for the Department of Mental Disabilities, the Department of Public Health, Department of Public Aid, and also the Health Care Finance Administration of the Federal government.

He identified Respondents exhibit number 6 as a copy of the May 4, 1990, letter from Della Klevs to Samuel Barnes setting up the predisciplinary meeting. He signed Della Klevs’ name with her authority and he later crossed out “suspension pending judicial verdict,” and entered the notation, “Error: Note discussion does not apply to an exempt employee,” then initialed it. Barnes did not have the option of a suspension pending judicial verdict. He gave Barnes the option of going on a general leave of absence until the matter of his arrest was'resolved.

Claimant did not file a grievance.

Mr. Himpelmann identified a May 16, 1990, letter from Claimant’s attorney indicating he received it. He did not do anything after receiving the letter.

Mr. Barnes was discharged because the department feared that adverse criticism would follow. The May 4, 1990, letter states that his arrest raises reasonable doubt concerning his suitability for continued State employment. The letter does not mention adverse criticism because of his arrest. The handbook requires that an employee is entitled to know the reason for any disciplinary action against him. Mr. Barnes never was sent a corrected version of the May 4, 1990, letter. On redirect examination, Mr. Himpelmann stated that he told Barnes on May 7, 1990, that the “suspension pending judicial verdict” did not apply to him as an exempt employee.

The Law

Claimant argues that the employee handbook created an employment contract between Claimant and Respondent. (Duldulao v. St. Mary of Nazareth (1987), 115 Ill. 2d 482, 505 N.E.2d 314.) Mr. Barnes signed a certification of receipt for the handbook. The certification states that, “compliance with these policies and regulations is a condition of employment” and that “violations of any Department policy or regulations could result in disciplinaiy action up to and including loss of job.”

Mr. Barnes argues he could only be discharged in compliance with the handbook. The handbook contains a section, under part IV, personal conduct, in relation to its policy towards employees possessing or using narcotics or other habituating drugs. The policy statement is as follows:

"Department employees who possess or use alcohol, narcotics or other habituating drugs while on duty, or those employees while off-duty who use alcohol, use or possess narcotics or other habituating drugs in such a manner as to bring adverse criticism on the Department, may be discharged.”

It also contains “procedures” that shall be followed in relation to employees who demonstrate a problem with narcotics or other habituating drugs.

The parties agree that Mr. Barnes did not use or possess narcotics while on duty. Therefore, Claimant argues that Respondent discharged him because he violated the policy against the off-duty use or possession of narcotics or other habituating drugs in such a manner as to bring adverse criticism on the department. The only newspaper article about the arrest does not mention where Mr. Barnes is employed. The Respondent has not produced any evidence of adverse criticism of Barnes’ off-duty use or possession of cocaine. Respondent’s agents testified that they feared such criticism. The handbook does not specify that an employee could be discharged for the fear of adverse criticism.

Although the Respondent discharged Barnes because of his arrest, at that time he was presumed innocent. Coffin v. United States (1885), 156 U.S. 432, 39 L. Ed. 481, 15 S. Ct. 394; People v. Layhew (1990), 139 Ill. 2d 476, 564 N.E.2d 1232.

The other instances of alleged misconduct by Claimant are not relevant to the discharge because they were never mentioned to Claimant prior to the trial in this cause. Claimant argues the Respondent is asking that the contract be rewritten to provide that a “fear” of adverse criticism is sufficient to discharge an employee after his arrest for use or possession of cocaine. In support of the proposition that this contract only allows discharge when there is actual criticism, Claimant cites Mitchell v. Jewel Food Stores (1990), 142 Ill. 2d 152, 568 N.E.2d 827.

There was no stated cause for the discharge of Claimant. The cause of discharge changed since the May 11, 1990, meeting from suitability of continued employment to fear of criticism.

Claimant was an exempt employee. Exempt employees serve at the will of Respondent, are not certified, and can be terminated for almost any reason. A certified employee is covered by jurisdiction B of the Personnel Code.

Mr. Himpelmann stated that Claimant Barnes’ arrest for possession with intent to deliver cocaine warranted discharge because that type of arrest can bring adverse criticism upon the Respondent and raised doubts about his suitability for continued State employment.

Claimant was an employee at will. Exempt employees are defined in the handbook as, “any person appointed to a position not covered under Jurisdiction B of the State Personnel Code.”

Respondent argues that Claimant was an employee at will. Respondent also argues that Claimant failed to exhaust his remedies under the handbook he alleges is a contract. Claimant failed to pursue the grievance procedures. The grievance procedures referred to by Respondent indicate that an employee: should first attempt to resolve the concern with the immediate supervisor; then refer it to the facility director, or her designee; then a designee of the director of the department; and finally, an appeal to the director of Central Management Services, and, in certain cases, an impartial arbitrator. Mr. Himpelmann testified that Barnes did not file a grievance regarding the discharge. Section 25 of the Court of Claims Act requires an exhaustion of all available remedies prior to bringing an action in the Court of Claims. Boe v. State (1984), 37 Ill. Ct. Cl. 72.

Claimant has failed in his burden of establishing that he exhausted his remedies.

Further, Claimant has not presented evidence entitling him to damages. The only reference in the record to damages is Claimant’s testimony that he was making $20.25 per hour in May, 1990. There is no evidence of how long he was unemployed or the circumstances affecting his unemployment, other than his own testimony that he was incarcerated for 18 months.

The Claimant does not reference any provision of the statutes or regulations, other than those included in the handbook, to support his contention that his discharge was improper. Therefore, the primary question is whether the handbook created terms of employment. If not, the parties would be subject to terms determined by law. Neither party cites any Court of Claims cases to support or refute the theory that the handbook created a contract between Claimant and Respondent. Claimant relies on Duldulao for the proposition that the handbook created a contract. Mr. Himpelmann did testify that the handbook applied to Claimant. The handbook was delivered to Claimant and he signed a certification.

Barnes does not dispute that he was an exempt employee not covered by the State Personnel Code.

The handbook does define “exempt employee” but does not indicate that exempt employees are not covered by the handbook. Respondent apparently argues that Claimant is exempt from the handbook that that is not expressed. We believe the handbook set terms of employment.

The Respondent had the right to discharge Claimant Barnes for a violation of its policy against use or possession of narcotics and other habituating drugs in two circumstances. Claimant could be discharged for:

(a) possession or use of narcotics or other habituating drugs while on duty; or

(b) while off-duty, he used or possessed narcotics or other habituating drugs, in such a manner as to bring adverse criticism on the Respondent.

The question is whether the Respondent had to wait for actual criticism to be brought forth, or could discharge Claimant based upon the belief that the possession or use was “in such a manner” as to potentially bring adverse criticism in the future. Although there is no evidence presented on the intent of the language in question, it is apparent from the plain and ordinary meaning of the words that the Respondent was trying to avoid the harm caused by adverse criticism. This is understandable given the nature of the departments function, namely, providing residences, medication and treatment for disabled individuals.

To adopt Claimants construction, the Court would have to rule that Respondent could take no action prior to adverse criticism being leveled at the department. Taking this argument to the extreme would mean that the Respondent could not discharge Claimant even after Claimant was convicted and sentenced, unless it was the recipient of adverse criticism. This construction does not allow for the avoidance of harm. The better construction is that the Respondent could make the decision to discharge if Claimants use or possession of narcotics was “in such a manner” as to bring adverse criticism. A felony arrest would be such a manner. The Court accepts the judgment of Claimant’s supervisors in deciding that Claimant’s use or possession of cocaine, and his arrest for “intent to deliver,” was in such a manner as to bring adverse criticism.

It is also Claimant’s burden to demonstrate loss. (Grant v. State of Illinois (1993), Ill. Ct. Cl. 24.) Claimant has presented virtually no evidence concerning damages except his hourly rate at time of discharge, the fact he was incarcerated for 18 months, and that his current hourly rate at his new employment exceeds the rate at the time of discharge. We cannot make a finding of damages on this evidence.

We therefore find that Respondent properly terminated Claimant, an at-will employee, pursuant to the terms of the handbook. Claimant further failed to exhaust his administrative remedies and failed to present competent evidence of damages. Claimant, as an at-will employee, had little job protection. He seeks protection from the terms of the handbook. However, Claimant failed completely to take advantage of the grievance procedures within the handbook. Claimant cannot have it both ways. His failure to exhaust remedies standing alone is a sufficient ground upon which to deny this claim. Neylon v. State (1986), 39 Ill. Ct. Cl. 63.

For the foregoing reasons, it is the order of this Court that Claimant’s claims be and hereby are denied.

ORDER

Frederick, J.

This cause comes before the Court on Claimants petition for rehearing, and the Court having reviewed the court file, all of the pleadings, the Courts opinion, and the Court being fully advised in the premises, wherefore, the Court finds:

1. That the Courts opinion of August 25, 1995, cites three separate grounds for denial of Claimants claim.

2. That Claimant raises nothing before the Court which would lead the Court to change or modify its prior opinion.

3. That upon review, the Court believes that its prior opinion was the proper decision.

Therefore, it is ordered that the Claimants petition for rehearing is denied.


source: Caselaw Access Project

author: Sommer, G.J. Sommer, C.J.

license: Public Domain

text:
    (No. 92-CC-2057
    Aaron T. Olin, a minor, and David A. and Kimberly Olin, his parents, Claimants, v. The State of Illinois, Respondent.

      Order filed May 13, 1993.

      Order filed April 5, 1996.

    Rarash, Stoerzbach & Henson (Richard A. Dahl, of counsel), for Claimants.
    Jim Ryan, Attorney General (Alix Armstead, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Sommer, G.J.

This cause comes to be heard on the Respondents first motion to dismiss, the motion of the Claimant to file a first amended complaint, and the Respondents second motion to dismiss directed toward the first amended complaint, the parties having argued this matter in oral argument before the Court on February 18, 1993, and this Court being fully advised, finds:

1. That the injured party, an 11-year-old child, fell from a hand trolley device erected in Argyle Lake State Park by State employees.

2. That the statute addressing the situation is the Recreational Use of Land and Waters Act, 745 ILCS section 65/1, formerly Ill. Rev. Stat. ch. 70, section 331.

3. That section 65/3 of said Act states “Except as specifically recognized or provided in section 6 of this Act, an owner of land owes no duty of care to keep the premises safe for entry or use by any person for recreational or conservation purposes * *

4. That section 65/6 of said Act states in part as follows: “Nothing in this Act limits in any way any liability which otherwise exists:

(a) For willful and wanton failure to guard or warn against a dangerous condition, use, structure, or activity.”

5. That in the case of Cozzi v. North Palos Elementary School District (1992), 597 N.E.2d 685, the First District Appellate Court held that willful and wanton conduct can only be established once there is a finding of a duty.

6. That in Cozzi, the Court determined that whether there was a duty depended upon whether a child could appreciate the risk involved in the particular playground apparatus.

7. That if there is a finding of a duty owed the injured party, there must be an additional finding that the conduct of the State, through its agents, was willful and wanton.

8. That the trolley device was unique and not a normal piece of playground equipment.

9. That whether an 11-year-old child could appreciate the risk is a question of fact concerning the device.

10. That whether the States conduct was willful and wanton is a question not necessarily of intentional harm but can be one of reckless disregard of substantial danger or consequences; and such, though a difficult standard to meet, is a question of fact.

11. That the Claimant has stated such facts concerning prior injuries, that it may be possible for the Claimant to prove willful and wanton conduct.

It is therefore, ordered that the Respondents motions to dismiss are denied and the Claimants motion for leave to file the amended complaint is granted; and the amended complaint is deemed filed.

ORDER

Sommer, C.J.

This cause coming to be heard on the parties joint stipulation of dismissal and settlement therein, due notice having been given, and this Court being fully advised, finds that the parties having agreed to settle this claim for personal injuries for $25,000, and that this Court desiring to encourage the amicable settlement of disputes, does hereby order that the proposed joint stipulation of dismissal is approved; and that the Claimants are awarded $25,000 in full and complete satisfaction of this claim; and that this claim is dismissed with prejudice.


author: Epstein, J.

text:
    (No. 93-CC-0083
    Roscoe Taylor, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 27, 1995.

    Nelson I. Dunitz, for Claimant.
    Jim Ryan, Attorney General (Robert T. Lane, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Epstein, J.

This is a claim for attorneys fees for a false pleading by a State agency in the circuit court, which the Claimant has brought pursuant to Illinois Supreme Court Rule 137. This claim is before us on the Respondents motion to dismiss which asserts three grounds: (1) failure to exhaust remedies (as required by section 25 of the Court of Claims Act (705 ILCS 505/25), and our rules); (2) failure to state a cause of action; and (3) lack of subject matter jurisdiction over this claim.

The allegations of the complaint are egregious. Claimant alleges that his tax refunds were withheld for six years and remitted to the Respondents Department of Public Aid (“IDPA”) based solely upon a false “affidavit of service of order for withholding” and a false “notice of delinquency” that were filed in the circuit court by IDPA personnel in a mistaken effort to collect child support from him when he was not liable for any child support obligations. Claimant alleges that these documents were false both in asserting the Claimants obligation and in asserting that an underlying adjudication against him had been made, when in fact there was not even a case pending against the Claimant. Claimant alleges, in effect, that the IDPA filed multiple false pleadings in the circuit court in a nonexistent proceeding.

After filing his claim in this Court, which originally sought return of the wrongfully withheld money as well as attorneys fees, Claimant successfully recovered his tax refunds from the Respondent. Claimant now seeks recovery here under Rule 137 for $17,880 of attorney’s fees allegedly incurred in obtaining the order for the return of his tax refunds, as well as his costs and punitive damages.

As offensive as the allegations in this case are, this Court is constrained to agree with the Respondent’s third point — which ought to be the first point raised — that this court lacks jurisdiction over this Rule 137 claim over an allegedly false pleading in another proceeding in another court, as we have previously held. (Oder v. Board of Trustees of University of Illinois (1991), 45 Ill. Ct. Cl. 152.) In addition to Oder, which was based on that Claimant’s inability to locate a statutory jurisdictional basis, there are several reasons for our conclusion.

First, as Respondent correctly points out, the general jurisdictional grant in our Act expressly excludes “claims for expenses in civil litigation” (section 8(a), Court of Claims Act; 705 ILCS 505/8(a)). We recognize that the statutory language of section 8(a) is facially ambiguous: the “civil litigation” phrase is susceptible of being read both within the jurisdictional grant as well as within the exception. However, the ultimate conclusion, informed by legislative draftsmanship, English grammar, the canons of statutory construction and, ultimately, by the apparent intent of the 80th General Assembly that added this phrase to section 8(a), is necessarily that claims for civil litigation are not within our section 8(a) jurisdiction.

The language of section 8(a) of our statute, in context, is as follows:

“§8. Court of Claims jurisdiction. The court shall have exclusive jurisdiction to hear and determine the following matters:
(a) All claims against the State founded upon any law of the State of Illinois, or upon any regulation thereunder by an executive or administrative officer or agency, other than claims arising under the Workers’ Compensation Act or the Workers’ Occupational Diseases Act, or claims for expenses in civil litigation.”

The ambiguity, of course, lies in the placement of the disjunctive phrase “or claims for expenses in civil litigation” at the very end of the sentence, where it may be read as part of the antecedent exclusion that commences with “other than * ” *,” or where it may be read as a continuation of the beginning litany of claims over which jurisdiction is being granted.

The grammatical structure of the phrase suggests that it is part of the exclusion. The subject of the phrase is “claims for expenses” or, more narrowly, “claims.” This is parallel to the construction of the exception clause, which excludes various “claims.” This is not parallel to the construction of the jurisdictional grant, which does not repeat the term “claims” but instead contains a short litany of legal foundations for claims. Thus the draftsmanship tends to support reading the civil litigation expense provision as an exception to our jurisdiction.

Another aspect of the draftsmanship of section 8(a), the location of the phrase at the end of the sentence, is also persuasive. The placement of this phrase after the “other than” exclusion language invites an exclusionary interpretation; this placement makes sense only if the drafters intention were to add it to the exclusion. If the intention had been to add this phrase to the jurisdictional granting clause, there is no apparent reason not to have placed the phrase before the exclusion and thus clearly within the granting language.

More convincing, however, is the analysis of the specific legislation that added this phrase to section 8(a) in 1977. The 80th General Assembly enacted House Bill 1502 over the veto of the governor in November, 1977, which thereby became Public Act 80-1097. This amendatory act made two distinct changes in the law.

Public Act 80-1097 amended section 41 of the [former] Civil Practice Act to authorize, for the first time, fee awards against the State and State agencies for false pleadings and, in connection with that change, added the “or claims for expenses in civil litigation” phrase to section 8(a) of the Court of Claims Act. These related changes were added to H.B. 1502 by Senate Amendment number 1, in which the House of Representatives later concurred. (Not relevant here, PA. 80-1097 also amended section 9 and section 22 of the Court of Claims Act to make time limits and rules in this Court jurisdictional; that was the original purpose of H.B. 1502 as introduced in the House.)

Initially, it is clear that the insertion of the “civil litigation expenses” phrase into section 8(a) by the Senate amendment was an integral part of its purpose in extending the former section 41 fee sanction remedy to the State. In this context, it would have made no sense and served no purpose for the legislature to have amended section 8(a) in order to grant jurisdiction to the Court of Claims over the newly-authorized fee claims against the State. This follows because in the absence of any change to the section 8(a) language; that section already would have provided just such jurisdiction, through the operation of its existing language “claims against the State founded upon any law of the State of Illinois.” The amended section 41 would become a substantive law authorizing a claim against the State, and the general clause of our section 8(a) jurisdictional grant would have applied to it. Thus, the subject phrase — if read as a grant of jurisdiction — would be redundant and superfluous. We are instructed by the canons of statutory construction not to adopt a superfluous interpretation of statutory language, as the legislature is presumed to speak all statutory words with effect.

This analysis militates strongly for a reading of the “civil htigation” phrase as an exclusion from our jurisdiction — an exclusion made necessary by the pre-existing language of section 8(a), which otherwise would have given our Court exclusive jurisdiction over these section 41 fee claims and would thus have precluded jurisdiction in the circuit court. The General Assembly made an election as between this Court and our courts of general jurisdiction for the disposition of section 41 fee claims against the State and opted for the other courts. This conclusion is further supported by the language of section 41 to the effect that its provisions are to apply to the State “in the same manner” as other parties (P.A. 80-1097, section 1, amending section 41 of [former] Civil Practice Act).

This conclusion is confirmed by the Legislative Synopsis and Digest of 1977 (spring and fall sessions), a publication of the General Assembly itself (by its Legislative Reference Bureau) which is a non-authoritative guide to pending legislations contents and status. The digest was published weekly during legislative sessions. The digest entry for Senate Amendment number 1 to House Bill 1502 reads, in material part, as follows:

“* * * Excludes from jurisdiction of the Court of Claims, claims for expense in civil htigation. Amends the Civil Practice Act and provides that the State of Illinois or any agency thereof shall be subject to the provisions of this Section in this Section [sic] in the same manner as any other party. “ °

While not necessarily dispositive, this contemporaneous staff digest, which was before the enacting 80th General Assembly unchanged throughout the legislative history of H.B. 1502 following the adoption of the Senate amendment, including the veto-override vote, is compelling.

Thus we conclude that “claims for expenses in civil litigation” are outside of the section 8(a) jurisdiction of this Court. This, of course, only excludes this subject matter from the section 8(a) jurisdiction of this Court, and is potentially not the last word on the subject of our subject matter jurisdiction. A complete jurisdictional analysis requires consideration of the remaining provisions of the Court of Claims Act, particularly section 8, and of other Illinois statutes which might provide a jurisdictional basis here.

However, this secondary analysis is brief indeed. The remaining provisions of section 8 of our Act plainly fail to grant jurisdiction to us to award attorneys fees for a false circuit court pleading under Rule 137 or otherwise. Finally, neither Claimants nor our own research have disclosed any arguable jurisdictional basis in any other Act for this Rule 137 claim.

Third, and dispositively — but as the Respondent fails to point out — Rule 137 itself expressly restricts jurisdiction under the rule to the “same proceeding” and thus the same court (or a reviewing court) in which the allegedly false pleading was filed:

“All proceedings under this rule shall be within and part of the civil action in which the pleading, motion, or other paper referred to has been filed, and no violation or alleged violation of this rule shall give rise to a separate cause of action, or another cause of action within the civil action in question, by, on behalf of or against any party to the civil action in question, and by, on behalf of or against any attorney involved in the civil action in question.”

This provision of Rule 137 precludes relief in another court in another action, which is precisely what the Claimant seeks by this .claim. In this case, the rule remits the Claimant to the circuit court for his remedy. This, finally, ends the analysis.

We appreciate that the allegations before us state that there was no underlying circuit court proceeding, at least initially, in which the false pleading was filed, and thus there was arguably no legitimate “civil action” in which the Claimant could have presented his attorneys fee petition within the strict language of Rule 137. Nevertheless, that fact cannot and does not give this Court jurisdiction. Moreover, the Claimant also alleges that he was able to secure a court order for the return of his tax funds. It is unexplained why Claimant was unable, or failed, to bring his Rule 137 claim in that proceeding, in the proper court, rather than here. What is clear is that as sympathetic as we may be with the Claimants story (assuming, of course, as we must at this stage, that his allegations are true), this Court lacks the subject matter jurisdiction to entertain his Rule 137 claim for fees.

because we hold that we lack jurisdiction over this claim, it is unnecessary to reach or decide the other issues advanced in the Respondents motion.

This claim is dismissed for want of subject matter jurisdiction.


author: Sommer, C.J. Sommer, C.J.

text:
    (No. 93-CC-0220
    Joan Hickey, Individually and as Special Administrator for the Estate of Richard J. Hickey, deceased, Claimant, v. The State of Illinois ex rel. State Trooper Robert A. Huber, Respondent.

      Opinion filed May 23, 1995.

      Order on petition for rehearing filed January 30, 1996.

    Wild man, Harrold, Allen & Dixon (Leonard A. Kurfirst, of counsel), for Claimant.
    Jim Ryan, Attorney General (Andrew N. Levine, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

Claimant filed a two-count complaint seeking recovery for injuries sustained by her husband in a collision involving the husbands vehicle and that of an Illinois State trooper. The incident occurred on September 18, 1986, and her husband eventually died on December 22, 1989. The complaint was filed with this Court on August 3, 1992, almost six years after the collision and more than two and one-half years following her husbands death.

Respondent has filed a motion to dismiss this claim based on the expiration of the two-year statute of limitations set forth in section 22(h) of the Court of Claims Act. Claimant argues that the two-year statute of limitations should be overridden by the savings statute in section 13 — 217 of the Code of Civil Procedure inasmuch as her complaint was filed herein within one year of the date that similar proceedings had been dismissed by the Cook County Circuit Court for lack of jurisdiction.

First, a look at the underlying facts as reported in the appellate courts opinion affirming the Cook County dismissal:

“On September 18, 1986, Huber, responsible for the northern Illinois area, was assigned to patrol U.S. Interstate 290 and to control traffic on that highway. Huber’s field training officer, Tony Morrison, accompanied Huber on this assignment. Both Morrison and Huber stated that they received two radio reports over the Illinois State Police Emergency Radio Network which announced that suspects from an armed robbery had been observed heading east on Cermak Road. The report instructed units to “look out” for a metallic green car without license plates. At the time of the broadcast, Huber and Morrison were travelling south on Harlem Avenue toward Interstate 290. Huber drove to Cermak Road, and as he waited to turn left onto Cermak, both he and Morrison saw a car fitting the description drive through the intersection. Huber turned onto Cermak Road with siren, mars lights, and flashing “wig-wag” lights activated and began chasing the car. However, the green car, attempting to elude the squad car, increased its speed. The green car proceeded through the intersection of Cermak Road and Home Avenue. The light for the Cermak Road traffic was green. As Huber began to enter the intersection, Hickey, travelling on Home Avenue and apparently oblivious to the siren, entered the intersection against the light. Huber attempted to brake, but could not avoid hitting Hickey’s car.” (Hickey v. Huber (1st Dist. 1994), 263 Ill. App. 3d 560, 561, 635 N.E.2d 791, 792.)

In affirming the trial courts dismissal of the suit, the appellate court held that the doctrine of sovereign immunity applied to bar a claim against the trooper in circuit court because the trooper had been performing one of his official functions in pursuing the robbery suspects. Thus, in accordance with article XIII, section 4, of the Illinois Constitution of 1970 and the provisions of the State Lawsuit Immunity Act (745 ILCS 5), the appellate court ruled that the Court of Claims had exclusive jurisdiction over any litigation.

Section 13 — 217 of the Code of Civil Procedure is a savings statute intended to extend the period of limitations under certain circumstances. The version of section 13 — 217 in effect at the time of the circuit court’s dismissal of the prior litigation read:

“§13-217. Reversal or dismissal. In the actions specified in Article XIII of this Act or any other act or contract where the time for commencing an action is limited, if judgment is entered for the plaintiff but reversed on appeal, or if there is a verdict in favor of the plaintiff and, upon a motion in arrest of judgment, the judgment is entered against the plaintiff, or the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction, then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff, his or her heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or entered against the plaintiff, or after the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction.” (735 ILCS 5/13-217.)

Thus, the savings statute in effect at that time provided for the refiling of an action, assuming the otherwise applicable limitations period had run, within one year of any of the following dispositions:

(1) judgment is entered for plaintiff but reversed on appeal;

(2) following a verdict in favor of plaintiff, judgment is entered against plaintiff as the result of a motion in arrest of judgment;

(3) plaintiff voluntarily dismissed the action;

(4) the action is dismissed for want of prosecution; or

(5) the action is dismissed by a United States District Court for lack of jurisdiction.

See, e.g., Mares v. Busby (7th Cir. 1994), 34 F. 3d 533, 536.

In support of her contentions that section 13 — 217 should defeat Respondents motion, Claimant cites Roth v. Northern Assurance Co. (1964), 32 State Trooper Robert A. Huber. 2d 40, 203 N.E.2d 415 and its progeny. Roth dealt with an older version of the savings statute which contained the language “if the plaintiff is nonsuited” in the place presently occupied by the language “the action is voluntarily dismissed by the plaintiff.” The Roth court construed that “nonsuit” provision as permitting a refiling within one year after a Federal court had dismissed for lack of jurisdiction. In so ruling, the court was careful to stress that it read the savings statute as referring to involuntary nonsuits. (32 Ill. 2d at p. 43, 203 N.E.2d at p. 417.) Twelve years after the Roth opinion, this particular portion of the savings statute was amended by deleting “if the plaintiff is nonsuited” and inserting “the action is voluntarily dismissed by the plaintiff,” to wit:

“§24. In the actions specified in this Act or any other act or contract where the time for commencing an action is limited, if judgment is given for the plaintiff but reversed on appeal; or if there is a verdict for the plaintiff and, upon matter alleged in arrest of judgment, the judgment is given against the plaintiff; or the action is voluntarily dismissed by the plaintiff if the -plaintiff in nonsuited, or the action is dismissed for want of prosecution then, whether or not the time limitation for bringing such action expires during the pendency of such suit, .the plaintiff, his heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or given against the plaintiff, or after the action is voluntarily dismissed by the plaintiff plaintiff is nonsuited or the action is dismissed for want of prosecution.” Ill. Rev. Stat. ch. 83, par. 24a; Public Act 79-1358; see, Laws of the State of Illinois, 79th General Assembly, pages 743-744 (emphasis added).

One of the first reported decisions construing the amendment came from the Court of Claims: Gunderson and Wosylus v. State (1980), 33 Ill. Ct. Cl. 297. The Court noted:

“Under the old statute, a plaintiff whose suit was dismissed involuntarily could commence a new action within one year of the dismissal order where the statute [of limitations] expired during the pendency of the suit.
It is Respondent's contention that the new statute affords protection only to plaintiffs whose lawsuits are voluntarily dismissed and [that] its protection is [now] unavailable to plaintiffs whose actions are involuntarily dismissed." 33 Ill. Ct. Cl. at p. 298 (emphasis added).

The Court of Claims agreed with the States position and dismissed that claim. Although Claimant has assailed the Gunderson ruling as little more than an “aberration with no precedential value” (see Claimants 9/14/94 objections, p. 7), the Illinois Supreme Court has thoroughly studied these issues and has reached the same conclusion that this Court did in Gunderson. (See, e.g., Hupp v. Gray (1978), 73 Ill. 2d 78, 82-83, 382 N.E.2d 1211, 1213; Conner v. Copley Press, Inc. (1984), 99 Ill. 2d 382, 387-388, 459 N.E.2d 955, 957; and DeClerck v. Simpson (1991), 143 Ill. 2d 489, 577 N.E.2d 767.) In short, Gunderson accurately assessed the effect of the 1976 amendment. Dismissals for lack of jurisdiction are not voluntary dismissals by the plaintiff but are dismissals by the court on another ground, namely, lack of jurisdiction. Thus, under the amended savings statute, the Roth opinion and its progeny are inapposite; the amended section 13 — 217 did not allow Claimant an additional year to file her complaint in this Court.

In its most recent pronouncement on statutes of limitations, the supreme court wrote:

"Our decision produces a harsh result in that it extinguishes liability where such should plainly lie. That is, however, the nature of statutes of limitations. The statutes are inherently arbitrary in their operation in that they attach a complete bar to recovery of a valid claim or the imposition of criminal liability based on no more than the passage of time. While we express sympathy for plaintiff in this case, our duty is to adhere to our clearly established precedent.” (Sepmeyer v. Holman (1994), 162 Ill. 2d 249, 256, 642 N.E.2d 1242, 1245.)

It is especially important for the Court of Claims to strictly enforce its limitations provisions, for they are jurisdictional. (Illinois Bell Telephone Co. v. State (1981), 35 Ill. Ct. Cl. 345.) The Court of Claims does not have equitable jurisdiction to allow a Claimant to utilize defenses such as waiver, estoppel, or laches to overcome the Courts strict limitations provisions. In re Application of Ward (1981), 35 Ill. Ct. Cl. 398.

Accordingly, Respondents motion to dismiss is allowed. It is ordered that this claim is dismissed with prejudice.

ORDER DENYING PETITION FOR REHEARING

Sommer, C.J.

Claimants petition for rehearing argues: (1) that her circuit court filing satisfied the limitations provisions of section 22(h) of the Court of Claims Act even though there was no concurrent filing with this Court; (2) in the alternative, that section 13 — 217 of the Code of Civil Procedure permitted her late filing in this Court notwithstanding our reasoned opinion to the contrary; and (3) that, should she fail to succeed with her first two arguments, she has been “victimized” by the Illinois Supreme Court and must therefore be allowed to pursue her untimely claim herein.

Section 22(h) Argument

While it is true that there is dicta from an Illinois Supreme Court opinion which would purportedly bolster Claimant’s first argument, scrutiny of the case law on which that dicta is premised reveals it to be without a viable foundation. The language in question is from Williams v. Medical Center Commission (1975), 60 Ill. 2d 389, 396, 328 N.E.2d 1, 5:

“Our decision in Roth v. Northern Assurance Co. [citation omitted] is authority for the proposition that the filing of the present action, although it was filed in the Circuit Court rather than in the Court of Claims, satisfies any statutory requirement of notice and filing.”

This dicta cites to a portion of Roth which, in turn, cited to Geneva Construction Co. v. Martin Transfer and Storage Co. (1954), 4 Ill. 2d 273, 289-90, 122 N.E.2d 540, 549.

Neither Geneva Construction nor Roth involved a Court of Claims matter. Geneva Construction concerned the propriety of a post-limitations amendment of a circuit court pleading1 to substitute a new party plaintiff based on principles of common law subrogation, and the supreme courts analysis was limited to a straightforward review of the procedural statute involved. It must be emphasized that the statute in question in Geneva Construction allowed only for a post-limitations amendment of a pleading, not an amendment of the forum. Roth, as explained in our initial opinion, dealt with the intricacies of a now defunct predecessor to the present section 13 — 217 of the Code of Civil Procedure, a totally different procedural statute than was at issue in Geneva Construction. Nonetheless, the Roth Court rationalized that the purposes of the two statutes were similar and, using equitable powers, held:

“[W]hen a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist, and we are of the opinion that a liberal rule [circumventing the statute of limitations] should be applied.” Roth, 32 Ill. 2d at 49-50, 203 N.E.2d at 420, quoting from Mr. Justice Holmes in a United States Supreme Court opinion.

Unlike the United States and Illinois Supreme Courts, this Court of Claims is devoid of equitable jurisdiction; our limitations provisions are jurisdictional and cannot be disregarded under any circumstances. Accordingly, despite the Supreme Court dicta to the contrary, we are unable to recognize Claimants erroneous circuit court filing as a “surrogate” filing with this Court. Claimant simply did not meet the filing deadline prescribed by section 22(h) of the Court of Claims Act, and she is therefore barred from now bringing her claim to this Court.

1 Geneva Construction involved a predecessor of the present section 2 — 616 of the Code of Civil Procedure:
“[The amendment] shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted if the time prescribed or limited had not expired when the original pleading was filed and if * * “ the cause of action ’*'in the amended pleading grew out of the same transaction or occurrence set up in the original pleading “ *

Section 13 — 217 Argument

The Courts previous, thorough analysis of section 13 — 217 of the Code of Civil Procedure is self-explanatory, and Claimant offers no new argument to substantively challenge it. Further, there is additional precedent supporting our ruling: Nikelly v. Board of Trustees (1992), 45 Ill. Ct. Cl. 336, 338. Thus, we again find that section 13 — 217 did not allow Claimant additional time to file her claim with this Court.

“Victimization” Argument

Claimant complains bitterly about the application of Currie v. Lao (1992), 148 Ill. 2d 151, 592 N.E.2d 977 to her circuit court case, but such an argument can only be properly directed to the reviewing courts, if any, presently having jurisdiction over those issues; they are not part of the instant Court of Claims litigation. From a practical standpoint, we do note that Claimant and her husband had filed preliminary notices with this Court and the Attorney General pursuant to section 22 — 1 of the Court of Claims Act. Thus, they were aware of the potential Court of Claims jurisdiction and could have easily proceeded to concurrently file a timely claim in this Court when initiating the Cook County case. Such a strategy is commonly employed by counsel practicing before this Court, and it would have protected Claimant from the limitations risk which naturally resulted here from the decision to file in only one of the potentially available fora.

Accordingly, inasmuch as we see no reason for further oral argument, it is ordered that Claimants petition for rehearing is denied.

       This version of section 13 — 217 was later amended, effective January 7,1993, to allow similar refiling of an action dismissed by a United States District Court as a result of improper venue. P.A. 87-1252, section 2.

       The post-Kofh decisions Claimant cites are: Williams v. Medical Center Commission (1975), 60 Ill. 2d 389, 328 N.E.2d 1; and Edwards v. Safer Foundation, Inc. (1st Dist. 1988), 171 Ill. App. 3d 793, 525 N.E.2d 987.

       There was no specific Federal dismissal provision in the savings statute at that time.


text:
    (No. 93-CC-0306
    Kerry L. Bass, Claimant, v. The State of Illinois, Respondent.

      Order filed December 27, 1995.

    Kerry L. Bass, pro se, for Claimant.
    Jim Ryan, Attorney General (Julie A. Smith, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Epstein, J.

This claim is before the Court on the Claimants motion to transfer this matter to the small claims section of the Circuit Court of Cook County, for the reason that he has sued the wrong party and, instead of State personnel, intends to sue Cook County or some of its personnel. As this Court has previously held, we are unaware of any authority for transferring a claim from this Court to other courts. (See First Baptist Church of Lombard v. State, 47 Ill. Ct. Cl. 423.) Accordingly, it is hereby ordered:

1. Claimants motion to transfer is denied;

2. This claim is dismissed without prejudice.


author: Raucci, J.

text:
    (No. 93-CC-1308
    Polly Jacobs, Claimant, v. The State of Illinois, Respondent.

      Order filed June 18, 1996.

    Stellis, Faulbaum & Field (Jack A. Stellis, of counsel), for Claimant.
    Jim Ryan, Attorney General (Deborah L. Barnes, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Raucci, J.

This cause coming on to be heard on the Respondents motion for summary judgment and the Respondents motion to dismiss, the Court being fully advised in the premises, the Court finds:

1. Because of our disposition of this case upon the allegations of the motion to dismiss, we decline to rule on the motion for summary judgment.

2. Claimant alleges that she was terminated from her employment by a third party as a result of conduct by employees of the Department of Children and Family Services (DCFS). She alleges that Respondent has a duty to provide her with due process by affording notice that she was an indicated perpetrator of child abuse or neglect and to afford her an opportunity to appeal that decision; that Respondent failed to do so and, as a result, she was terminated from her employment. Claimants amended complaint seeks relief in this Court for deprivation of due process and “privileges and immunities” rights afforded to her under the United States Constitution and pursuant to 42 U.S.C. 1983.

3. Respondent is not a “person” within the meaning of 42 U.S.C. section 1983. Will v. Michigan Department of State Police (1989), 491 U.S. 58.

4. A section 1983 claim must 1) have been under color of State law, and 2) have deprived a person of rights, privileges or immunities guaranteed by the Constitution or laws of the United States. (Bayview-Lofbergs Inc. v. City of Milwaukee (7th Cir. 1990), 905 F.2d 142, 144.) This claim fails the second test. Claimant must show that 1) the claimed interest is a property or liberty interest and that 2) the alleged loss amounted to a deprivation; and 3) the deprivation was without due process of law. See Bayiew-Lofbergs Inc., supra.

5. Scott v. Village of Kewaskum (7th Cir. 1986), 786 F.2d 338, 339-40, controls this case. To the extent a request appeals to discretion rather than rules, there is no property interest. In order for a State to create a constitutionally protected property interest, the language conferring the interest must be of “unmistakably mandatory character, requiring that certain procedures "shall/ "will/ or "must’ be employed” and that the challenged action will not occur absent specific substantive predicates. (Colon v. Schneider (7th Cir. 1990), 899 F.2d 660, 667.) An interest is created only where the law’ or regulation in question contains specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow. The test for whether a statutory or regulatory procedure creates a protectable due process interest hinges on the actual language used by the legislature. (Colon, supra.) Claimant has failed to allege any facts tending to show that she is entitled to relief.

It is therefore ordered that the Respondent’s motion to dismiss is granted, and this cause is dismissed and forever barred.


text:
    (No. 93-CC-1871
    Glenstone Homeowners Association, Claimant, v. The State of Illinois, Department of Transportation, Respondent.

      Opinion filed May 13, 1996.

    Marshall N. Dickler, Ltd. (Jeffrey A. Goldberg and James A. Slowikowski, of counsel), for Claimant.
    Jim Ryan, Attorney General (Joel Cabrera, Assistant Attorney General, of counsel), for Respondent.
   OPINION ON SUMMARY JUDGMENT

Epstein, J.

In this case of first impression, the Claimant, Glen-stone Homeowners Association (the “association”), seeks (count I) payment of 1991-93 owner’s assessments of $14,120 on four subdivision lots that were purchased by the Department of Transportation (“IDOT”) in 1990, as well as attorney’s fees and other collection expenses, and seeks (count II) foreclosure of the association’s asserted hen on the four lots for non-payment of $9,242 of assessments, which was recorded with the Lake County Recorder (document number 3126118). Our jurisdiction is based on section 8(b) (contract clause) of the Court of Claims Act (705 ILCS 50578(b)).

These claims are before the Court on cross-motions for summary judgment. The association’s motion claims $26,256 in unpaid assessments for the period of July, 1991, through September, 1994, and attorney’s fees of $13,124 and “costs” of $175.40. The Respondent’s motion denies liability altogether. Roth parties assert that there are no disputed material fact issues, and that these claims can be adjudicated on the questions of law presented.

The Undisputed Facts

These claims arise from IDOTs 1990 acquisition of four lots of real estate in the Glenstone Subdivision (unit II) on the north side of Cuba Road in Long Grove, Lake County, Illinois. IDOT bought the lots from the subdivision developer for use as right-of-way for the intended expansion of FAP Route 432, i.e., for highway purposes. The $530,000 price was negotiated under threat of condemnation following IDOTs mandatory purchase offer under the eminent domain statute. (705 ILCS 5/7-102.1.) IDOT took title to the lots and related easements by quitclaim deed dated October 24, 1990, from the developers land trustee; the deed was recorded with the Lake County Recorder on February 21, 1991 (document number 2991579).

On October 27, 1989, the Glenstone Subdivision, including the purchased lots, had been impressed with a “Declaration of Covenants, Conditions and Restrictions” executed by the developers land trustee. The declaration, which also created the homeowners association was recorded with the Lake County Recorder on November 1, 1989 (document number 2847044). (See complaint, exhibit C [certified copy of recorded declaration].) The principal covenant in the declaration that is material to the associations claims provides:

“Article 4, Section 1: Creation of Lien and Personal Obligation for Assessments. Each Owner of a Lot * * 8 by acceptance of a deed therefor or otherwise, whether or not it shall be so expressed in any such deed 8 8 8 hereby covenants and agrees and shall be deemed to covenant and agree to pay to the Association or each Lot owned 8 8 8 (1) annual assessments or charges to be paid in equal bi-annual installments (8 8 8 "Annual Assessment”) 8 8 8 and (2) special assessments for purposes including 8 8 8 major capital improvements (8 8 8 “Reserve Assessment”). Reserve assessments are to be fixed, established and collected by the Association shall constitute the maintenance fund of the Association. The annual and special assessments, together with such interest thereon and costs of collection thereof, including 8 8 8 reasonable attorneys’ fees * e * shall be a charge on the land and shall be a continuing lien upon each Lot against which each such assessment is made. Each such assessment, together with such interest thereon and cost of collection thereof, including * * * reasonable attorneys’ fees, " * * shall also be the continuing personal obligation of the “ * * Owner of such Lot at the time when the * * * assessment fell due.”

Other provisions of the declaration also relied upon by the association are article 4, section 3 (“Computation of Assessments” [relating to the 1/24 share to be paid by each lot owner, personal liability of lot owners, and the non-exculpation of lot owners for assessments due to non-use of the association common areas]), section 4 (“Date of Commencement of Annual Assessments” [relating to delinquencies and late fees on assessments]), and article 9, section 3 (“Remedies” [relating, inter alia, to lien foreclosure, cumulation of remedies, and entitlement to recovery of attorney’s fees and collection costs and expenses]). These covenants, conditions and restrictions (“covenants” or “subdivision covenants”) in the declaration, and their enforceability against IDOT as owner of the four lots, are the subject of this dispute.*

IDOT acknowledges that it was aware of the declaration and of the homeowners association before it completed its purchase, and that it requested the developer-owner to provide a “release” of the four lots from the homeowners association (departmental report, August 4, 1995, at page 2.) IDOT was informed that the developer had already “turned the homeowners association over to the unit owners.” Ibid.

Following an internal discussion among IDOT attorneys, the department elected to close on its purchase of the lots without obtaining a release or conveyance from the association. This was based on the IDOT attorneys’ consensus that the subdivision covenants are not enforceable against IDOT, as an agency of the sovereign, for a series of reasons (see, IDOT departmental report, August 4, 1995, at pages 3-4), most of which are advanced in the Respondent’s arguments on the pending cross-motions for summary judgment.

Pursuant to IDOT’s lawyers’ determination, and in the absence of an appropriation specifically for the payment of these association assessments, IDOT has not paid any of the association’s assessments since taking title to the four lots. On February 3, 1993, the association filed its collection and foreclosure claims in this Court.

The Parties’ Legal Positions

On the primary issues presented — whether the State is liable on the covenants contained in the declaration that run with the land, especially on the affirmative covenant to pay assessments, and whether any such pecuniary liability is unenforceable against the State for some other reason, the parties take fundamentally opposing positions.

The Claimant contends that the subdivision covenants are binding on IDOT, notwithstanding its status as an agency of the State. The association maintains that the State is not exempt from covenants that were lawfully imposed on property that the State later acquired and now owns; that IDOT’s purchase of the lots subjects it, by voluntary and express assumption, to the obligations of covenants impressed on the property that run with that land; and that the obligations of those covenants are enforceable in contract in this Court.

Respondent IDOT contends (1) that the State, as sovereign, is not bound by covenants running with land that it acquires as a matter of law, based apparently on the doctrine of sovereign immunity; (2) that the declaration and its covenants are not express contracts, but are instead “implied contracts” which are unenforceable against the State as a matter of law; (3) that the declaration conflicts with the Illinois Purchasing Act and is thus unenforceable against the State; (4) that even if the subdivision covenants are theoretically binding on the State, no money judgment may be imposed against the State in the absence of an appropriation for the particular contractual purpose; and (5) that the express language of the declaration exempts or excludes these parcels from the operation of the covenants because the parcels were acquired by a public body for highway purposes; (6) that the State is not obligated to pay association assessments because it does not and will not receive any benefit from such payments; and (7) that the State is not liable for attorneys fees or interest absent a statute so providing.

In reply to IDOTs contentions, the Claimant argues (a) that the declaration and its covenants are express, not implied, contracts; (b) that the Illinois Purchasing Act does not apply to those covenants, and specifically not to the covenant to pay assessments; (c) that a specific appropriation is unnecessary for an award to be made; that a lapsed appropriation is adequate; and that the 1990-1995 appropriations for IDOT in fact included appropriations of funds for land acquisition and related expenses, which encompasses the assessment obligations on these lots; (d) that the language of the declaration does not exempt IDOT highway acquisitions of subdivision property; (e) that the state, as a governmental body, is not exempt from real property covenants that run with the land; and (f) that the State is hable for interest on the overdue assessments and for attorneys fees and collection expenses due to its express contractual obligation under the subdivision covenants.

Analysis

Count I: The Associations Claim for Payment of Assessments

1. Applicability of the Covenants to the Subject Parcels.

The Court must first address the interpretative issue raised by IDOT. As Respondent points out, the other issues in this case are moot if the property is not subject to the covenant to pay assessments, which is the sole predicate of liability asserted by the Claimant. However, we do not accept the Respondents interpretation of the exemption language in the declaration.

Respondent contends that its acquisition of the four parcels brings that land within the language and intent of the following provision of article 4 of the declaration:

“Section 7. The following property subject to this Declaration shall be exempt from the assessments created herein.
(a) All property dedicated to and accepted by a local public authority, and properties granted to or used by a utility company.”

Respondent relies on the first clause. Under its language, the terms that define the scope of applicability of this exemption are “dedicated to and accepted” and “local public authority.” Neither of these terms are defined in the declaration, and accordingly must be given their ordinary and accepted meanings. Respondents effort to bring IDOT’s acquisition of these parcels under the section 7 language fails both elements.

First, “dedicated to and accepted” is clearly used in its real estate context. This is a standard real estate term denoting a particular method — or two methods, if both statutory and common law dedication are included — of transferring an interest in real estate to a public body for the purpose of a public way. In contemporary practice, this is ordinarily, but not necessarily, for use as a public street or road.

Respondent has cited no precedent for a usage of “dedication” or “dedicated” meaning a conveyance of land or of interests in land effected by quitclaim deed, as was done here. Indeed, because dedications ordinarily do not convey a fee but instead grant limited rights restricted to the surface of the land, most commonly the right of public passage, there is ample reason to believe that the declarations use of the term “dedicated” (with its concomitant requirement of “acceptance”) was an intentional choice of available terms, and was intended to restrict the circumstances in which land in the subdivision would be exempt from assessments.

IDOT would have us read this expression to encompass any subdivision land as to which an interest was granted for road or highway purposes to any public entity. The declaration simply does not say that, although it readily could have if that were the intended purpose of this clause. We find no ambiguity in the language of section 7, nor any indication in the declaration of an intent comporting with Respondents broad interpretation.

We find it much more likely that this kind of provision — which is common in developments involving common areas — was intended to accommodate possible dedications of internal streets and sidewalks to the local municipality or township, which would then maintain them. In such event, the section 7 provision would exempt the dedicated portions of parcels from assessments as a way to equalize the assessment burden as between the owners of undedicated and partly-dedicated parcels. This purpose, of course, has nothing to do with major roads adjacent to the subdivision, or with tire use of eminent domain powers to acquire subdivision land, or with the removal from the residential subdivision of entire parcels as IDOTs road project would effect as a practical matter. There is no hint in the declaration that section 7 was intended to address these issues, as Respondent itself acknowledges in its brief.

Also supporting this view is the fact that the operative effect of section 7 is not to exclude the “dedicated” land (or the utility property covered by the other section 7 clause) from the declaration or from the subdivision. Thus any land “exempt” under section 7 remains subject to the other terms of the declaration, i.e., other than tire assessment provisions. This suggests that section 7 was intended to cover dedicated public streets and perhaps sidewalks inside the subdivision that serve the subdivision, not roads outside the subdivision, which would be the effective result here.

Second, the term “local public authority” is inconsistentrwith Respondents argument. Although neither party has cited us to any generally accepted meaning or usage of this term, it is apparent, as the association contends, that “local” does not ordinarily connote a statewide agency or jurisdiction. Respondent’s attempt to call IDOT a “local” authority also fails to find support in the voluminous documentation that IDOT produces every year. As nearly as we can tell, IDOT does not refer to itself as a “local public authority” or as “local.” It is very difficult to see why a drafter of an Illinois subdivision declaration might do so.

The literal and ordinary, but narrower, meaning of “dedicated to # # local public authority” is that this language covers dedications to local governments (usually for road or street purposes). In Illinois, as even a cursory review of our Highway Code shows, the “local” authorities having street and road jurisdiction are cities, villages and incorporated towns (often referred to genetically as “municipalities”), and townships and counties. Under the 1970 Illinois Constitution, which was in effect when this declaration was written, local government includes those kinds of public bodies and “special districts.” See, 1970 Ill. Const., Art. VII, “Local Government.” State agencies like IDOT are constitutionally and statutorily referred to by a number of expressions but never by one including the term “local.” We can find no basis for concluding otherwise for the usage intended in this Illinois subdivision declaration.

We therefore hold that the exemption in article 4, section 7 of the declaration does not apply to these lots and does not exclude them or their owner from the covenant to pay assessments.

2. Sovereign Immunity.

The principal defense relied on by IDOT appears to be that sovereign immunity bars the enforcement of these covenants. There is an elegantly short answer to this: Sovereign immunity ceases at the door of this Court. Once a Claimant is successfully in this Court, sovereign immunity is statutorily waived and provides no defense against State liability as it does outside of this Court. See, An Act in relation to immunity for the State of Illinois, section 1 (745 ILCS 5/1); see also, Court of Claims Act, section 8 (705 ILCS 505/8). Sovereign immunity is not a defense to claims over which we have jurisdiction under our statute. It is a bit unsettling that a State agency like IDOT could so fundamentally misunderstand Illinois law of sovereign immunity.

We might therefore consider the possibility that IDOT relies on a different concept than sovereign immunity. Respondent might be arguing that under common law, these kinds of subdivision covenants do not apply to the State or to government bodies generally. This kind of argument would not rely on immunity but on substantive real estate law. However, no common law precedent or statutory basis for such a rule of construction of covenants has been cited to us by Respondent, and we are unaware of any such principle.

Accordingly, we must reject both views of IDOTs defense. The covenants apply to IDOT as any other owner; the State is not immune in this Court to liability on these covenants.

3. The Implied Contract Defense.

Respondent contends that the declaration, and thus its covenants, are not express contracts, but are instead “implied contracts” which are unenforceable against the State as a matter of law, based on long-settled precedents of this Court, e.g., Brighton Building Maintenance Co. v. State (1982), 36 Ill. Ct. Cl. 36. There is no need to review those precedents, which reject implied covenant claims (e.g., quasi-contract, quantum meruit) in this Court, because the Claimant does not dispute that point of law.

However, we must point out that the reason for this Courts rejection of implied-contract claims is jurisdictional, based on section 8(b) of our Act — our contract jurisdiction clause — which limits the contract claim jurisdiction of this Court to “claims against the State founded upon any contract entered into with the State of Illinois.” Recause implied contracts are not “founded upon” express contracts they are not cognizable here.

However, a claim based on a non-express contractual basis may nevertheless be cognizable in this Court. A third-party beneficiary claim — which itself is not an express contract — may be “founded upon” another contract with the State that is an express contract. In that event jurisdiction lies here and the third-party beneficiary claim is cognizable. Haendel v. State, No. 90-CC-0234, Slip. Op. April 22, 1996, at 8-9.

Like third-party beneficiary claims founded upon express contracts with the State, this contract claim founded upon a written express covenant is similarly not an “implied contract,” and is therefore not outside our jurisdiction under section 8(b) of our Act, at least not for that reason. This is clearly an express contract claim, not an implied contract claim.

We must only complete the section 8(b) jurisdictional analysis by determining whether or not the underlying express contract — here the subdivision covenants running with the purchased land — are indeed contracts “entered into with the State of Illinois” so as to bring this claim under our jurisdiction. We find, without hesitation, that the States acquisition of title to the land subject to the duly recorded covenants and with actual notice of them made the State a party to the declaration and its subdivision covenants. Accordingly, this claim is a claim founded upon a contract with the State, and Respondents implied contract objection is rejected.

3. The Benefits Argument.

Respondent contends that the State is not, or should not be, obligated to pay association assessments because the State does not, and will not, receive any benefit from such payments. We do not understand the basis, in law or in the Constitution, for this argument, and no supporting basis or precedent has been cited to us.

This argument may have been intended as an adjunct to Respondents “implied contract” theory, i.e., that if the associations claim were to be adjudicated as an implied contract, then the benefits analysis would be a proper defense to such a theory. However, neither Claimant nor this Court has considered this claim to be based on implied contract doctrines.

In any event, the Respondents benefit analysis, considered as an independent defense to the Claimants express contract claim, must be rejected as baseless.

4. The Illinois Purchasing Act

The Respondent contends that the assessment covenant is unenforceable against the State because its acquisition was not in accordance with the Illinois Purchasing Act (30 ILCS 505/9.01 et seq.), which generally governs State purchases and contracts for goods and services. Respondent characterizes the contract in this case as a “contract for services” between the association and IDOT, and argues that as such it violates the Purchasing Act’s requirements that such contracts be reduced to writing and filed with the State Comptroller.

This clever argument cannot be taken too seriously, for the simple reason that the “services contract” hypothecated after-the-fact by the Respondent is not a separate and independent contract. Simply put, there is no independent “contract for services” in this case that might be bid, or exempted and negotiated, or filed with the Comptroller. The contract in this case is the declaration, which contains as an integral and unseverable part the covenants that Respondent now seeks, erroneously, to treat as an independent contract.

The State’s entry into that contract was an implicit part of its purchase of the four subdivision lots. Thus, if there were to be a violation of the Purchasing Act, the applicability and requirements of the Act as applied to this land acquisition must be analyzed. That is a separate question from the point advanced by Respondent. However, neither party claims that IDOT’s purchase of land for highway purposes is governed by the Purchasing Act or that the purchase under threat of condemnation in this case somehow violated that Act. This is understandable. In this light, we need not further examine that issue.

5. Attorney’s Fees and Interest.

Respondent argues that the State is not liable for attorney’s fees or interest absent a statute so providing which is missing here. Claimant urges, on the other hand, that its claims for attorney’s fees and interest are not predicated on statute or Court rule or common law, but are instead contractual obligations under the declaration (article 9, section 3), which as a matter of law are as enforceable as the remainder of the declaration against a subdivision lot owner.

Claimants recovery of these components of its damages claim rests on the enforceability of the covenant providing for payment of attorneys’ fees, collection costs and interest. Respondent has cited no precedent holding that contractual obligations to pay fees, interest or similar expenses are unenforceable against the State in this Court, or in the claims forum of any other jurisdiction. However, in Douglas v. Department of Conservation (1977), 32 Ill. Ct. Cl. 113, 114-115, this Court allowed recovery of attorney’s fees from the State as a matter of contract damages, where the contract expressly provides for them and where the attorney fees were a result of the Respondent’s breach of contract, and hence, are in the nature of an expense incurred as a result of the breach. Given the precedent of Douglas, and the undisputed fact that this kind of collection expense is directly caused by IDOT’s refusal to pay these assessments, we perceive no reason why these contractual reimbursement obligations should not be treated as any other contract obligation.

6. Supporting Appropriations.

The Respondents final defense against payment to the association is its contention that even if the subdivision covenants are binding on the State, no money judgment may be imposed by this Court against the State in the absence of an appropriation for the particular contractual purpose. On this point, finally, we find principled agreement with the State in this case.

For its part, the Claimant does not dispute this appropriations principle, but instead advances two points that, if accepted, would satisfy the appropriations requirement. First, Claimant argues that the Respondents view of what is a proper appropriation to fund or to support payment of these association assessments is excessively stringent. Second, Claimant contends that in the annual appropriations to IDOT for fiscal years 1992-1994, covering the periods for which assessment payments are sought in the Claimants motion, there were in fact adequate appropriations to make these payments and that sufficient funds lapsed from those appropriations in those years to allow an award for the amounts now sought.

We observe that IDOT has not seriously challenged these appropriations contentions of the Claimant. However, the requirement for appropriations to support State contractual obligations is a requirement of constitutional dimensions, and this Court must exercise its own scrutiny on this issue, rather than merely side with the superior argument. Accordingly, we have reviewed the IDOT appropriations act submitted by Claimant for the subject years.

The Court concludes that appropriations for land acquisition, for maintenance of property, and for some contractual service line items are adequate, consistent with the State Finance Act, to support expenditures for these subdivision assessments which, on this record, are for maintenance of property owned by IDOT. We are also persuaded that Claimant is correct that sufficient funds lapsed in these years from suitable line items to support an award in this case.

Count II: Foreclosure of the Associations Lien

In count II, the association seeks to foreclose its hen under the declaration on the four subdivision lots, and thus to foreclose on IDOTs title to those properties, in order to recover the unpaid assessments that are, also, the subject of the count I contract claim. The Respondent has interposed a number of legal and jurisdictional defenses to the count II foreclosure action.

However, in light of our summary judgment on count I and our determination to make an award, the basis of the count II foreclosure action is now moot, at least for the present. We therefore need not take up the technical issues involved in the litigation of count II, and will dismiss count II without prejudice to renew it if for any reason the assessed payments awarded herein are not paid, or for other good cause.

Conclusion and Order

The subdivision covenants are contractual obligations that run with the land, and bind all owners, including the State. As contractual covenants running with and benefiting and burdening these lands, they take on the character of interests in land. IDOT acquired the four lots but did not acquire the association’s interest in the lots, as it plainly ought to have done, and thus its quitclaim deed brought less than might have been prudently expected. We have held that IDOT is subject to the covenant rights against those lots. But that will not end this matter.

Unfortunately, those covenants will continue to impose at least an annual obligation on the State, and possibly more, subject to the availability of appropriated funds. We take the unusual step of pointing this out because of the obvious, but serious, concern that this case will return on an annual basis until either the State conveys away these lots or effects a settlement with the association or acquires the associations interests in the covenants on these lots.

Accordingly, it is ordered:

A. The Respondents motion for summary judgment is denied;

B. The Court finds that there are no disputed questions of material fact as to count I of the complaint, and that the Claimant is entitled to judgment as a matter of law; Claimants motion for summary judgment as to count I is granted;

C. Summary judgment on count I is entered for Claimant and against Respondent;

D. Claimant Glenstone Homeowners Association is awarded the sum of $39,555.40 for the following:

(1) For assessments for July, 1991 through September, 1994: $26,256.

(2) For attorneys fees for collection: $13,124.

(3) For costs of collection: $175.40.

E. Count II of the complaint is dismissed without prejudice.

       The association is a not-for-profit corporation as the declaration mandates.

       The declaration also contains restrictions which, if enforceable against IDOT, would effectively preclude the use of the four lots for the highway purposes for which IDOT acquired them. Insofar as the record on summary judgment reflects, the four parcels have remained vacant and have not been utilized for any purpose by IDOT to date.

       The declaration was noted as a special exception in the second title commitment obtained by IDOT (see departmental report, exhibit I (Mid America Title Co., commitment, schedule B, number 9)); that commitment also excluded the association assessment against the lots (id., exhibit I, schedule B, number 10). The company apparently removed these exceptions in its final policy (id., exhibit J (Title Policy number 144-022245, schedule B).

         Respondent does not contend that we lack jurisdiction, although its "implied contract” argument is actually a jurisdictional issue which we take up separately. See Pt. 2, post.