author: Roe, C. J. Roe, C.J.

text:
    (No. 82-CC-1214
    Ryder Truck Rental, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 25, 1982.

      Opinion on rehearing filed March 18, 1983.

    Maton, Goldstein & Barr (Paul J. Maton, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Andrew R. Jarett, and William R. Wallin, Assistant Attorneys General, of counsel), for Respondent.
   Roe, C. J.

This claim arises from the final administrative decision of the Secretary of State to refund Claimant $86,256.00 in registration fees that were improperly collected during a period from 1973 to 1975. This court has jurisdiction over the claim pursuant to section 8 of the Court of Claims Act (Ill.Rev.Stat., ch. 37, par. 439.8(a)), and more specifically under section 3-824 of the Illinois Vehicle Code (Ill.Rev.Stat., ch. 9572, par. 3-824) which provides in pertinent part as follows:

“(d) Any application for refund received after the times specified in this section shall be denied and the applicant in order to receive a refund must apply to the Court of Claims.”

The time specified in section 3-824(b) of the Illinois Vehicle Code was six months, although the applicability of this time period to the particular facts in this case was not finally determined by the Secretary of State until October 30, 1981, following several years of litigation at the administrative level.

The facts of the case are not in dispute and were stipulated to by the parties as follows:

“a. This case revolves around the interpretation of sections 3-400 and 3-401 of the Illinois Motor Vehicle Code (IRS 1973, ch. 9572, pars. 3-400 and 3-401).
b. Under section 3-401 (a) of the Motor Vehicle Code it is unlawful for any person to drive or permit to be driven on the highways any vehicle that is not registered in the name of the owner.
c. That under section 3-400 of the Vehicle Code an owner is defined as including a lessee.
d. That Ryder Truck Rental, Inc. would buy trucks and register them for use in Illinois. These trucks would then be leased out in the normal course of business.
e. That the Secretary of State would check the registrations of these leased trucks, and under strict interpretation of the law the trucks were not registered under the name of the ‘owner’, in this case the lessee. The Secretary of State then required that the trucks be registered under the names of the lessees. That Ryder agreed to pay these fees to avoid inconvenience to its customers (the lessees).
f. That the flat weight tax, which has been referred to as the registration fee, is set forth in section 3-815 of the Illinois Motor Vehicle Code (IRS. 1973, Ch. 95½, par. 3-815) and that most of Ryder’s trucks fell into class V, which requires payment as a tax or fee per truck of $1,492.00.
g. That Ryder appealed this forced registration, arguing that as trucks had been properly registered, all that was needed was a corrected registration. Under section 3-821 (a) of the Illinois Motor Vehicle Code (IRS 1973, Ch. 95½, par. 3-821 (a)) the fee for this is only two dollars.
h. That the Secretary of State agreed with Ryder and found that $86,256.00 had been improperly collected and should be returned.’’

Pursuant to Rule 14 of the Rules of the Court .of Claims, departmental reports were offered into evidence by stipulation along with other evidence which indicated that the Secretary of State does believe that the sum is due and owing, and the parties represented by counsel have agreed to an award of that sum.

do encourage parties to avoid litigation if unnecessary and will not reject such stipulations out of hand. In the case at bar, while we agree in all respects that the fees paid by Claimant were improper, we feel constrained by law to deny this claim on other grounds. We find that the two-year limitations .contained in section. 22(g) of the Court of Claims Act (Ill.Rev.Stat., ch. 37, par. 439.22(g)) applies. The various incidents giving rise to the cause of action in this claim occurred at various points in time during 1973, 1974, and 1975. The claim was not filed until December 4, 19.81, and therefore is clearly barred.

Although Claimant was bound to exhaust its admihistrative remedies pursuant to section 25 of the Court of Claims Act (Ill.Rev.Stat., ch. 37, par. 439.24-5), it should nevertheless have filed its claim in this Court to preserve the claim while seeking administrative review. Rules 6 and 7 of the Rules of the Court of Claims provide a procedure whereby, upon a showing that a claimant was involved in pursuit of other remedies in another forum, the case in the Court of Claims would be continued generally pending resolution of the collateral litigation.

We are cognizant of the difficulties suffered by Claimant during the course of its administrative hearings, but were we to approve this stipulation we would effectively be doing away with the statute of limitations in such cases because any party could at any time start the limitations period running again by seeking an administrative order, whether favorable or unfavorable, and then file here.

In summary, while we are sympathetic to the plight of the Claimant, we are constrained by law to deny this claim. Accordingly, it is hereby ordered that this claim be, and hereby is, denied.

OPINION ON REHEARING

Roe, C.J.

' This claim arose out of a final administrative decision of the Secretary of State not to refund the Claimant certain registration fees that were improperly collected during a period from 1973 to 1975. The facts are set forth in our previous opinion filed June 25, 1982, wherein the claim was denied." It is before us now on the Claimant’s petition for rehearing.

In our previous opinion we refused to concur in the stipulation by both parties to an award and denied the claim based upon the expiration of the applicable two-year limitations period (Section 22(g) of the Court of Claims Act. Ill.Rev.Stat., ch. 37, par. 439.22(g).) We stated as follows:

“In the case at bar, while we agree in all respects that the fees paid by Claimant were improper, we feel constrained by law to deny this claim on other grounds. We find that . . . (the two-year limitations period) . . . applies. The various incidents giving rise to the cause of action in this claim occurred at various points in time during 1973, 1974, and 1975. The claim was not filed until December 4, 1981, and therefore is clearly barred.
Although Claimant was bound to exhaust its administrative remedies pursuant to Sec. 25 of the Court of Claims Act, it should nevertheless have filed its claim in this court to preserve it while seeking administrative relief. Rules 6 and 7 of the Rules of the Court of Claims provide a procedure whereby, upon a showing that a claimant was involved in pursuit of other remedies in another forum, the case in the Court of Claims would be continued generally pending resolution of the collateral litigation.
We are cognizant of the difficulties suffered by Claimant during the course of its administrative hearings, but were we to approve this stipulation we would effectively be doing away with the statute of limitation in such cases because any party could at any time start the limitations period running again by seeking an administrative order, whether favorable or unfavorable, and then file here.” (Emphasis added.)

In its petition for rehearing Claimant essentially made a two-part argument to the effect that the Secretary of State has the authority to grant or deny a request for a refund of registration fees erroneously collected when said request is made six months or more after the date of payment and, until the Secretary of State has acted on the request, Claimant cannot be said to have exhausted his administrative remedies pursuant to section 24 of the Court of Claims Act. Ill.Rev.Stat., ch. 37, par. 439.24.

With respect to whether or not the Secretary of State had such authority, we think that the administrative decision rendered October 31, 1981, was dispositive of the issue wherein the Secretary of. State voiced the same basic concern emphasized in the language quoted above. He stated in pertinent part as follows:

“It is clear that the General Assembly did not want the Secretary to even consider applications for (sic) which were filed more than six (6) months after the payment in error. It does not seem logical or consistent for the General Assembly in the same sentence to give the Secretary a discretionary authority without any limit whatsoever regarding time of payment or amount of refund. It would seem inconceivable that the legislature intended that a Secretary could determine, on his own motion, that an excess fee was paid by someone twenty (20) years and three (3) administrations ago and order a refund.
# e #
Finally it should be noted that what Ryder is doing in this case, since it admits a six (6) month limitation on applications for refund, is to suggest the error to the Secretary — rather than call it an application — and then ask the Secretary to use his ‘discretionary’ authority to ‘determine’ that the refund ‘is due and owing’ as though the entire matter were his own idea.
If Ryder Truck Rental, Inc. were to prevail in its theory of the construction of this Statute, any person who thought they might have a refund coming could completely circumvent the meaning and intent of the Statute by following the same course of action.” (Emphasis contained in order.)

It is not the function of this Court to review such determinations. The case is here, not for review, but pursuant to section 3-824(d) of the Illinois Vehicle Code. Ill. Rev. Stat., ch. 95½, par. 3-824(d).

Said subsection provides as follows:

“(d) Any application for refund received after the times specified in this section shall be denied and the applicant in order to receive a refund must apply to the Court of Claims.” '

With respect to Claimant’s contention that, until the Secretary of State rendered a decision the administrative remedies had not been exhausted, we do not agree. After the six-month period Claimant had no administrative remedy to exhaust. Its only available course of action was application to the Court of Claims. The cause of action in this forum accrued six months after the erroneous payment and could be brought within two years of that time. Moreover, the amendment which added the language to the section 3-824 pursuant to which the Claimant based its argument that it had another remedy was not even in effect at the time the application for refund was made to the Secretary. Contrary to Respondent’s belief as stated in its response to the petition for rehearing, our concern is more than theoretical. The situation also arises in other contexts. See Weissman v. State (1977), 31 Ill.Ct.Cl. 506.

We think that the foregoing addresses the legal arguments raised in the petition and response. Claimant may now argue that in construing when the cause of action in this forum accrues we are essentially reviewing and affirming the administrative decision of the Secretary of State. We are not. The Secretary of State was vested with authority to render its decision and it stands. Rather than reviewing the decision we are accepting it for what it is. The fact that the decision was a denial without prejudice to pursue the claim in this forum could only be construed to mean that the denial was not a comment on the actual merits of the application.

Similarly, it could be argued that but for the decision of the Secretary of State we would not have been able to find when the cause of action accrued in the Court of Claims as we did, again raising issues of exhaustion of remedies. Of course, had the decision of the Secretary gone the other way, Claimant would not even be here. And, the consequences of the decision were foregone conclusions by the time the claim at bar was filed. But the Claimant could have preserved his case here by way of the procedure outlined in our previous opinion if it wanted to try another avenue for relief. Neither section 25 of the Court of Claims Act (Ill.Rev.Stat, ch. 37, par. 439.24-5) nor Rule 6 of the Rules of the Court of Claims requires exhaustion of remedies before filing. They only require it before final determination. Had the claim been timely presented we either would have continued it generally if Claimant did seek another avenue or could have made a determination if another avenue was available. This is where the argument (that but for the decision of the Secretary of State we would not have been able to find when the cause of action accrues) breaks down. It is speculative, if not moot. Claimant did not file its claim here in time to present the issue. Had it done so, it would not have mattered. Regardless of which way the Secretary’s determination or this Court’s determination resulted, Claimant would have had the opportunity to present its case on the merits. Both the concerns of the Secretary and this Court, that the limitations period would be rendered a nullity in this situation, would have been satisfied.

However, Claimant did diligently and actively seek his refund from the Secretary of State. The application was made within two years and six months of the erroneous payment. The situation here is extremely different in that respect from Weissman, supra, where the Claimant sat on his rights for approximately five years. Although the change in the law ultimately was found to have no effect on the Claimant’s application, it did give rise to certain strong legal arguments on Claimant’s behalf which were raised in good faith and actively urged. The record indicates that the fact finding was a lengthy and tedious procedure. The issues raised and the underlying facts were apparently so perplexing to sort and resolve that it took three different administrations before a determination was made. There is no doubt as to the legitimacy of the actual merits of the case. The Secretary agreed that the fees were improperly collected. The Respondent through the Attorney General’s Office stipulated to an award in the full amount claimed. The underlying facts indicated that Claimant was a totally innocent victim of a procedure which was tantamount to highway robbery and Claimant is only seeking what it was wrongfully forced to actually pay out and do without for nearly 10 years. Under these extremely narrow and unique circumstances we will make the agreed award. However, we expressly caution that nothing we said herein is to be construed as a relaxation of our position. The situation presented herein was not intended as a disguised attempt to recreate the accrual of a cause of action and we do not intend to sanction such in the future.

It is hereby ordered that Claimant be, and hereby is awarded the sum of $86,256.00 as the parties agreed.


source: Caselaw Access Project

author: Roe, C. J.

license: Public Domain

text:
    (No. 82-CC-1562
    Fireside Chrysler Plymouth, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed December 15, 1982.

    Robert E. Gordon & Associates, P.C. (Robert A. Langendorf, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This matter coming to be heard on the motion of the Respondent for summary judgment in the form of a partial award to the Claimant, due notice having been given and the Court being fully advised in the premises;

Finds that $2,264.17 of this claim has been paid directly by the Department of Law Enforcement.

The remaining $374.32 is a properly authorized obligation of the Department of Law Enforcement which was not paid due to the lapse of the appropriation for the period during which the debt was incurred. Money was appropriated under appropriation and fund No. 011-45460-1800-00-00 of which appropriation $86,542.12 lapsed in fiscal 1978 and $346,212.28 lapsed in fiscal 1977.

It is hereby ordered that Respondent’s motion for summary judgment is granted and Claimant is hereby awarded, in full satisfaction of this claim, the sum of $374.32.


author: Poch, J.

text:
    (No. 82-CC-1564
    Tamara L. Hammer, a/k/a Tamara L. Reed, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 28, 1983.

    Donovan and Roberts, P.C., for Claimant.
    Neil F. Hartigan, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This matter comes before the Court on the joint ■ stipulation of the parties, which states as follows:

1. That the instant claim seeks to recover for damage to Claimant’s automobile sustained on June 6, 1981, at the intersection of State Route 56 and Briggs Road in Du Page County.

2. That Respondent concedes liability for the accident and the damages sustained in the amount of $500.00.

3. That there are no disputed questions of fact.

4. That both parties waive hearing and the submission of briefs.

5. That no other evidence, oral or written, will be submitted to the Court.

6. That an award of $500.00 will constitute full and final satisfaction of the instant claim and any other claim arising out of the same occurrence.

Although the Court is not bound by a stipulation such as this, it is also not desirous of interposing a controversy where none appears to exist. As long as the stipulation appears reasonable and fair, we see no reason to question its validity or to force the parties to take the time and expense of proving facts which are not in dispute.

We find the stipulated facts to be sufficient to sustain a finding of liability on the part of Respondent and an award in the agreed amount.

- Claimant is hereby awarded the amount of $500.00 (five hundred dollars and no cents).


text:
    (No. 82-CC-1580
    Rush Anesthesiology Group and Gupta Garlan, M.D., Claimants, v. The State of Illinois, Respondent.

      Order filed April 14, 1983.

    Rush Anesthesiology Group, pro se, for Claimant.

      Neil F. Hartigan, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This cause coming on to be heard on the motion of Respondent to dismiss, due notice having been given and the Claimants not filing any response thereto, and the Court being fully advised finds as follows:

1. That Claimants, Dr. Garla, a medical vendor, and the Rush Group, are seeking payment from the Illinois Department of Public Aid (IDPA) for medical services rendered by the doctor during November and December 1979, to an infant ward of the Department of Children and Family Services.

2. That, as fully set forth in IDPA’s department report, which is prima facie evidence of the facts therein set forth, Dr. Garla’s December services were billed to IDPA within one month after the services were rendered; however, the bill was rejected for payment, as it failed to identify the patient as IDPA’s Medical Assistance Program (MAP). Claimants’ bill for such services was later corrected, and has since been approved for payment and paid by IDPA.

3. Claimants acknowledge they have no evidence that the doctor’s November 1979 services were ever billed to IDPA on IDPA-prescribed forms, as required by Department Rule 4.015, D.R. Exhibit R-2. This rule (the requirements of which, also appear in IDPA’s MAP Handbook for Physicians, D.R. Exhibit R-3, as distributed to all MAP participating physicians), also imposes certain limitations on the State’s payment responsibility for such services. Among these is a limit on the period of time, following rendition of services, during which a vendor must bill such services to IDPA in order for the State to be liable for payment.

4. Claimants were thus made aware of the aforementioned requirements, but have failed to document that the November services were ever billed to IDPA. IDPA’s six-month deadline for Claimants’ initial submittal of a bill for the November services has passed long prior to the commencement of this action. Accordingly, this claim is now ripe for final consideration and adjudication by the Court.

5. A vendor’s claim to a vendor payment, enforceable under section 11 — 13 of the Public Aid Code (Ill. Rev. Stat. 1979, ch. 23, par. 11 — 13), may be “limited by regulations of the Illinois Department.” The above-mentioned regulation (department rule) imposes requirements which Claimants must meet if they are to receive a vendor payment for Dr. Carla’s November services. Claimants have not met such requirements.

6. That payment of this claim would be contrary to the above-mentioned regulation.

It is hereby ordered that the subject claim be, and is hereby dismissed, Claimants having been fully paid for the December services and having failed to demonstrate an entitlement to payment for the November services.


text:
    (No. 82-CC-1617
    Lucas Gonzales, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 12, 1982.

    Lucas Gonzales, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Glen Larner, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This is an action brought by Claimant, Lucas Gonzales, a resident of Stateville Correctional Center, for $15,000.00 damages “for being wrongfully and illegally transferred in violation of his constitutional rights” from a medium security institution (Graham Correctional Center) to a maximum security institution (Stateville Correctional Center).

The department report filed herein sets out by way of hearsay that Claimant was an organizer of drug trafficking activities at Graham, that he engaged in this activity with his stepfather, Richard Jones, also an inmate, and that the drugs were supplied, in part at least, by one Carmen Navarett, wife of Jones and mother of Claimant.

Claimant was sentenced to Stateville in 1979. He was transferred to Graham on December 2, 1980. (R. 8) On April 11, 1981, his mother was arrested at the entrance to Graham Correctional Center. (Subsequently she pleaded guilty in the Montgomery County Circuit Court to unlawful possession of cannabis, paid a $500.00 fine and was given a two-year conditional discharge.) On April 17, 1981, the authorities at Graham submitted an administrative transfer request to the director of the Department of Corrections for Claimant’s transfer. This request was approved, and on April 28, 1981, Claimant was returned to Stateville.

A memorandum dated February 19, 1982, from Kenneth L. McGinnis, warden, Graham Correctional Center, to Ronald S. Vycital, manager support services, contains the following statement:

“Mr. Gonzalez [sic] was transferred from the Graham Correctional Center to the Stateville Correctional Center pursuant to the provisions of Administrative Regulation 817, section II-F, which permits non-disciplinary transfers without prior hearings when it is in the best interest of the inmate or the Department of Corrections.”

The Department of Corrections adult division administrative regulations dealing with institutional transfers are attached hereto as an exhibit. Section II-F specifically provides as follows:

“F. Nothing in this regulation should be construed to mean that a nondisciplinary transfer may not be made without a hearing when it is in the best interest of a resident or the Department of Corrections.”

In Hundley v. Sielaff (1975), 407 F Supp. 543, 546, (a civil rights action brought by two residents of Stateville against the director of the Department of Corrections and the Stateville warden), Justice Marshall states:

“The defendants argue that the complaint should be dismissed because Bauer has no constitutional right to a transfer, and that the question of whether an inmate should be transferred from one institution to another is a decision vested in the discretion of the Department of Corrections. There undoubtedly was a time when federal courts would not interfere with prison transfer decisions unless some clear abuse or caprice on the part of the prison officials could be shown. See, e.g., United States ex rel. Verde v. Case, 326 F.Supp. 701, 704 (E.D.Pa.1971). More recent cases, however, hold that transfers that result in a grievous loss to the prisoner cannot be accomplished without the safeguards of minimal due process. Aikens v. Lash, supra; United States ex rel. Haymes v. Montanye, 505 F2d 977 (wd Cir. 1974), cert. gr. 422 U.S. 1055, 95 S.Ct. 2676, 45 L.Ed.2d 707 (1975); Newkirk v. Butler, 499 F.2d 1214 (2d Cir. 1974), vacated and remanded on other grounds sub nom., Newkirk v. Prieser, 419 U.S. 894, 95 S.Ct. 172, 42 L.Ed.2d 138 (1975); Stone v. Egeler, 506 F.2d 287 (6th Cir. 1974). And while most of these cases deal with disciplinary rather than administrative transfer, the label a state places on the transfer is not determinative. The court must look to the loss suffered by the transferred prisoner. Newkirk v. Butler, supra, at 1217, 95 S.Ct. 172. Not every loss, however, is sufficient to invoke the due process clause. When the transfer is motivated by factors extrinsic to an inmate’s behavior, the move may be accomplished without procedural due process even though some hardship may result to the prisoner. United States ex rel. Haymes v. Montanye, supra at 980. See Hillen v. Director of Social Services, 455 F.2d 510, 511 (9th Cir.), cert. denied, 409 U.S. 989, 93 S.Ct. 331, 34 L.Ed.2d 256 (1972).”

While it thus appears that the claims of inmates of Illinois correctional centers concerning their rights with regard to institutional transfers can be heard in the Federal courts, there is a question as to whether this Court can hear such claims. Clearly this Court could not direct that a claimant be transferred from one institution to another.

However, in this case Claimant is not asking for such affirmative relief. He is asking instead for $15,000.00 damages, alleging that his transfer was cruel and unusual punishment.

For Claimant to recover it would first be necessary for him to prove that in transferring him from Graham Correctional Center to Stateville Correctional Center the State committed an actionable tort, and secondly it would be necessary for him to prove the amount of his damages.

Even if Claimant were completely innocent of the drug-pushing activities alleged against him, there is nothing in the record to indicate that Respondent exceeded its administrative discretion in ordering his transfer. Section II-F of the Department’s administrative regulations specifically provides that a non-disciplinary transfer may be made without a hearing when it is in the best interest of a resident or the Department of Corrections. Claimant was transferred without a hearing, but there is nothing in the record to show that the Department abused its discretion in so transferring Claimant. There is nothing in the record to show that Claimant’s transfer was other than a non-disciplinary transfer.

Finally Claimant has not succeeded in proving his damages. On page 28 of the record he expressly states that in asking for $15,000.00 damages he was including what he felt were damages suffered by his mother.

On page 33 of the record Claimant spelled out that the relief he really wants is to be transferred to the farm at Stateville:

“I want to be transferred. I don’t even want the money if I can get transferred. All I want to do is go the farm

This relief is beyond the power of the Court of Claims.

It is hereby ordered that the claim be, and hereby is, denied.


author: Holderman, J.

text:
    (No. 82-CC-1805
    Charles M. Skaj, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 4, 1982.

    Charles M. Skaj, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Sandra L. Andina, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant in this instance was a resident of the State-ville Correctional Center.

On August 8, 1981, Claimant was sitting on a bench in the protective custody bull pen of the institution. The B-East bullpen is a relatively small enclosure with bars constituting three walls and a stairwell constituting the fourth wall. The seating provided is benches placed up against the bars which serve as one of the walls.

While Claimant was seated in the area indicated, the general population gym line started to come into the cell house, passing on all three sides of the protective custody bull pen on the way to the stairs.

Claimant was sitting with his back to the gym line when someone called his name. He turned around to look, and a general population inmate shoved his fist through the bars, striking Claimant in the face and injuring him. The individual who struck him was in the general population gym line.

Claimant states he does not know who struck him because the incident happened so fast and the officer on duty did not see the incident so he could not identify the attacker.

Claimant bases his claim on section 3-7-4 of the Unified Code of Corrections (Ill. Rev. Stat., ch. 38, par. 1003-7-4.

“Section 3-7-4. Protection of Persons. The Department shall establish rules and regulations for the protection of the person and property of employees of the Department and every committed person.”

There are several issues involved in this case.

1. Was Respondent guilty of negligence?

This Court, in the case of Carey v. State, 77-CC-0329, held that the State was not negligent because the need for protection was not known by the institution. In the present case, there was some knowledge on the part of Respondent that the Claimant would need some protective custody which was one reason he was in the bull pen at the time of the incident.

2. Was Claimant guilty of contributory negligence?

This brings up the question of whether or not Claimant, by sitting in the spot where he was vulnerable to the attack, was guilty of contributory negligence by placing himself in a position where he could be easily attacked by someone in the general population line. The evidence shows, that the room was large enough that Claimant could have removed himself from this position even though he might have had to stand up.

The warden raises the question as to whether or not the attack in question was provoked by Claimant or was one engaged in by mutual consent. The record appears devoid of any evidence to support either contention.

To find the State guilty of contributory negligence which was the proximate cause of Claimant’s injury would, in practice, make the State an insurer 'of the safety of all its inmates. To do this, the State would have to be knowledgeable of all the personal animosities, feuds, likes and dislikes of every inmate. It would, in practice, necessitate the complete isolation of each and every inmate from any contact whatsoever with Ms fellow inmates. This could only be done by having individual cells for each inmate, no mingling at any time or place, whether for meals or exercise, or any other community activities.

This Court does not believe the legislature, when it passed the above statute, intended the drastic measures above referred to should be placed in force by the State of Illinois. To make the State an absolute insurer of the personal safety of its inmates would be granting an inmate of a State penal institution far more protection than is granted to the average citizen in his daily walk of life. There are some dangers naturally inherent on the inside of a penal institution as well as on the outside.

We do not believe that the State should be held responsible for instances such as the one in this claim.

Claim dismissed.


text:
    (No. 82-CC-1811
    Westlake Company, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 22, 1983.

    Krohn & Najib (Omar M. Najib, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This is a claim to recover rent arising out of a holdover following expiration of a lease. The premises were occupied by the Illinois Arts Council at 566 West Lake Drive, Chicago, Illinois, after the lease expired for a period of approximately six months. During this period the parties were unsuccessful in agreeing upon a renewal rent amount and Respondent eventually vacated the premises.

The claim is before us on stipulation by the parties. They have agreed in the interests of fairness and compromise to an award in the amount of $3,250.00, said amount to constitute full and final satisfaction of this claim and any other claim arising out of the same occurrence. The commissioner to whom the case had been assigned for hearing concurred with the settlement. We have examined the departmental report and have found that sufficient funds with which this claim could have been paid have lapsed in the contractual services line item for fiscal year 1982, No. 001-50301-1200-00.

Although we are not bound by the settlement, we do approve it. Accordingly, it is hereby ordered that Claimant be, and hereby is, awarded the sum of $3,250.00.


text:
    (No. 82-CC-1830
    Michael Murphy, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 2, 1983.

    Dilling, Dilling & Gronek, for Claimant.
    Neil F. Hartigan, Attorney General (Sandra L. Andina, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant is an independent truck driver who was engaged in hauling lettuce from Seattle, Washington, to Chicago.

On February 10, 1982, Claimant entered an Illinois weigh scale on Highway 55 at Collinsville. He was advised by the weigh master that he was • overweight and he was directed to pull his tractor and trailer around to the rear of the scale house. At the rear of the scale house, there is a concrete roadway 23 to 24 feet wide with a seven- or eight-foot asphalt shoulder. The roadway leads to a parking area where the trucks are to park. Claimant went around the scale and onto the concrete portion of the roadway to proceed to the parking area. There was a truck parked on the curve leading to the parking area and Claimant attempted to pass around on the inside of this parked truck. As Claimant was making his turn, his back trailer tandem on the right side went off the concrete and the asphalt shoulder and into the median area which is grass. The rear tandem went into a rat, or hole, in the median that was filled with ice and frozen water, and as a result, the trailer tipped to a 45° angle. While waiting for a wrecker to right the trailer, the trailer fell over on its right side.

Claimant is claiming damages resulting from being out of employment for some period of time and is also claiming damages for expenses incurred by him relative to the accident complained of. The total claim is for

The evidence' shows the only negligence was on the part of Claimant in attempting to pass on the inside of the parked truck which necessitated that he go onto the grass parkway. It was Claimant’s own actions, and nothing that was done on the part of Respondent, that caused Claimant’s accident.

This Court has consistently held that the State of Illinois is chargeable with only maintaining its roads in a reasonably safe condition for the purpose for which they are intended, and that Claimant must, in order to prevail, prove by a preponderance of the evidence that Respondent breached its duty and that the breach caused the injuries to Claimant.

The proximate cause of injuries in the present case was the action of Claimant himself in pulling off the paved surface of the highway onto the grass parkway.

The proximate cause of the accident being the action of Claimant alone, this claim is hereby denied. See Baggett v. State (1980), 34 Ill. Ct. Cl. 51.


text:
    (No. 82-CC-1832
    Sherman L. Strootman, Claimant, v. The State of Illinois, Respondent.

      Order filed November 29, 1982.

    Sherman L. Strootman, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This cause having come for consideration on the joint motion of the Claimant, Sherman L. Strootman, and the Respondent, State of Illinois, and the Court being duly advised in the premises:

Finds, that Claimant’s property, a 1981 Ford van, was damaged when Claimant was entering Vandalia Correctional Center, Vandalia, Illinois, on November 6, 1981, at approximately 10:30 a.m. At that time, Claimant was proceeding through the Correctional Center gate when Sgt. Dennis McCombs accidentally pushed the close button to the gate control and the gate control shut damaging the van on the right passenger door. Claimant has had this damage repaired and the cost of that repair is $118.74. The Respondent agrees that this is a reasonable sum for that repair.

This information was received from the Claimant’s complaint and a departmental report issued by the Illinois Department of Corrections, State department or agency, a copy of which was attached to the joint stipulation and which is considered prima facie evidence pursuant to Rule 14 of the Rules of the Court of Claims. The Respondent, State of Illinois, conceded liability for the damage to Claimant’s property to the extent agreed upon in the joint stipulation.

Both parties have indicated that no other evidence, oral or written, will be presented to the Court and both parties waive briefs. Both parties agree to the granting of an award to the Claimant for $118.74 and both parties agree that this award will constitute full and final satisfaction of the claim herein or any other claim arising out of the same occurrence.

While this Court is not necessarily bound by a stipulation such as this, it has no desire to interpose a controversy where none appears to exist. Stipulation submitted by the parties appears to have been entered into freely and fairly, and its contents appear to be reasonable. The Court, therefore, finds no reason not to accept this stipulation and to follow its recommendation for an award in the amount of $118.74.

It is hereby ordered that, this Claimant be awarded $118.74 in complete and final satisfaction of this claim.


text:
    (No. 82-CC-1857
    Theodore J. Cattoni, Jr., Claimant, v. The State of Illinois, Respondent.

      Order filed June 15, 1983.

    Lambert, Levinson, Wanninger & Canna, for Claimant.
    Neil F. Hartigan, Attorney General (Sandra L. Andina, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter comes before the Court upon a joint stipulation filed by the parties hereto.

The question involved here is whether or not the mailing of a notice to the clerk of the Court of Claims and to the Attorney General on August 10, 1981, which was not received by them, and the mailing of a second notice on January 7, 1982, more than six months after the alleged personal injury, and which was received by the addressees, was sufficient to comply with notice requirements of the notice statute of the Court of Claims Act.

Section 22 — 1 of the Court of Claims Act (Ill. Rev. Stat. ch. 37, par. 439.22 — 1), which is the section involved here, states that the required notice must be filed in the office of the Attorney General and in the office of the clerk of the Court of Claims.

The joint stipulation is as follows:

“Now come Claimant and Respondent by and through their respective attorneys and, for the purposes of expediting decision of Respondent’s Motion to Dismiss, stipulate as follows regarding the attached Notice of Claim for Personal Injuries:
1. That said Notice was mailed by Claimant, as stated in the affidavit of Susan M. Semens, on August 10,1982, to both addressees.
2. That said notice was not received by either the Clerk of the Court of Claims or the Office of the Attorney General until after it was mailed a second time on January 7, 1982.”

The purpose of the requirement 'notice is to afford the State an early opportunity to investigate a claim. If the notice is not actually received, then the legislative purpose is thwarted or evaded. Mail sent by ordinary mail, rather than certified or registered mail with return receipt requested, which does not arrive at its destination, is actually never in the addressee’s office.

It is the opinion of the commissioner who received the stipulation and it is the opinion of the Court that one who mails a notice to the Attorney General and to the clerk and who does not take the precaution of sending it registered or certified mail takes the risk that the notice will never be in the required office. It is the opinion of this Court that the notice requirement of the statute was for the distinct purpose of giving the State of Illinois a chance to investigate any and all claims and thus protect the taxpayers of the State.

It is the further opinion of the Court that the stipulation in question does not satisfy the requirements of the statute and that the motion of Respondent to dismiss be granted.

This cause is dismissed.


text:
    (No. 82-CC-2026
    County of Randolph, Claimant, v. The State of Illinois, Respondent.

      Order filed April 11, 1983.

    William A. Schuwerk, Jr., for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This cause having come for consideration on the stipulation of the State of Illinois and the Court being duly advised in the premises:

Finds, that this cause arises pursuant to “An Act to provide for the reimbursement of counties . . . for expenses, costs and fees incurred in habeas corpus proceedings.” (Ill. Rev. Stat., ch. 65, par. 37 et seq.) Section 1 (Ill. Rev. Stat., ch. 65, par. 37) provides that:

“In all counties in Illinois wherein there may be situated a State penal or charitable institution, the State shall assume and pay to such county the necessary expenses incurred by it, and its officers, either by means of service rendered or otherwise, by reason of court proceedings therein involving a petition for relief by habeas corpus, by or on behalf of, an inmate of such institution who was not a resident of such county at the time of his commitment and was not committed by any court therein.”

The Respondent, State of Illinois, has stipulated that the fees requested by the County of Randolph are statutorily set and equal the amount of $603.00.

It is hereby ordered, that the County of Randolph be paid $603.00 from the Court of Claims fund in compliance with “An Act to provide for the reimbursement of counties . . . for expenses, costs and fees incurred in habeas corpus proceedings.” 111. Rev. Stat., ch. 65, par. 37.


author: Roe, C.J.

text:
    (No. 82-CC-2380
    Bernard Colvis, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 18, 1983.

    Bernard Colvis, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This matter comes before the Court on the Claimant’s complaint and the Respondent’s stipulation as to facts, and the Court being duly advised in the premises, finds:

The Claimant, Mr. Colvis, had property damaged or destroyed on or about 6:50 a.m. on July 3, 1981, when cattle, owned by the Menard Correctional Center, escaped from their pasture through an opening in a fence. This opening had been made in the fence the day before by a resident of the correctional system who had been mowing the right-of-way. The Menard Correctional Center was contacted at 6:00 a.m. by Mrs. Everett Spinner, who reported at that time that the cattle were loose on Old Route #3. Menard Correctional Center employees failed to respond to this phone call until 7:20 a.m., at which time the Claimant’s peach and nectarine trees had been destroyed by the cattle who found the grass to be greener on Mr. Colvis’ side of the fence. These facts were supported by the Claimant’s verified complaint, and by an affidavit given by the agricultural manager of the Illinois Correctional Industries, William D. Beaty, a copy of which was attached to the Respondent’s stipulation.

The Respondent, State of Illinois, concedes liability for loss of Mr. Colvis’ property to the extent agreed upon in the stipulation. Both parties agree that the value of the lost property amounted to $1,030.00 and that this amount was determined by the area advisor for the Illinois Cooperative Extension Service, College of Agriculture, University of Illinois at Champaign/Urbana, Mr. Chris Doll.

No other evidence, either oral or written, was presented to the Court by the Respondent, and the Respondent waived briefs. The Respondent, State of Illinois, agreed to the granting of the award to the Claimant, Bernard Colvis, in the amount of $1,030.00, provided that this award would constitute full and final satisfaction of the claim herein or any other claim arising out of the same occurrence.

While this Court is not necessarily bound by a stipulation such as this, it has no desire to interpose a controversy where none appears to exist. The stipulation submitted by the Respondent appears to have been entered into freely and fairly and its contents appear to be reasonable. The Respondent has stipulated to the entire amount of the award requested by the Claimant, and the Claimant has filed no objections thereto. The Court, therefore, finds no reason not to accept the stipulation and to follow its recommendation for an award in the amount of $1,030.00.

It is hereby ordered, that the • Claimant, Bernard Colvis, is hereby awarded the amount of $1,030.00 in full and final satisfaction of this instant claim.


text:
    (No. 82-CC-2617
    Methodist Medical Center of Illinois, Claimant, v. The State of Illinois, Respondent.

      Order filed February 4, 1983.

    Westervelt, Johnson, Nicoll & Keller (D. Phillip Anderson, of counsel), for Claimant.
    ■ Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This cause coming on to be heard on the Respondent’s motion to dismiss and the Court being duly advised in the premises:

Finds, that the amount the Claimant is seeking in this matter exceeds the specified contract amount between the Claimant and the Respondent, State of Illinois. This information was acquired from the departmental reports filed by the Illinois Department of Mental Health and Developmental Disabilities and the Illinois Department of Public Aid, State departments or agencies, a copy of which was attached to the Respondent’s motion to dismiss. These reports are considered prima facie evidence pursuant to Rule 14 of the Rules of the Court of Claims. The departmental reports also establish that 2% transfer funds were not available to be used to pay this claim, and the account from which this claim would have been paid has been completely depleted.

Furthermore, this Claimant is not entitled to reimbursement from the Illinois Department of Public Aid medical indigent funds since the individual to whom the Claimant rendered services was receiving treatment not covered by this program. Also, this claim was filed more than one year after the Illinois Department of Public Aid denied the claim which bars it from this Court’s jurisdiction under section 11 — 13 of the Public Aid Code. Ill. Rev. Stat., ch. 23, par. 11 — 13.

It is hereby ordered, that this cause be dismissed with prejudice.


text:
    (No. 82-CC-2680
    Alice M. Wilson, Claimant, v. The State of Illinois, Respondent.

      Order filed April 20, 1983.

    James Ellis Gumbiner & Associates (Brian D. Albert, of counsel), for Claimant.

      Neil F. Hartigan, Attorney General (Lynn W. Schock, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This matter coming before the Court on the joint stipulation of the parties, and the Court being fully advised in the premises, it is hereby ordered, adjudged and decreed that an award of $750.00 be and hereby is made to Claimant, and that the joint stipulation of the parties be incorporated into this order.


text:
    (No. 82-CC-2690
    Turner Coleman, Claimant, v. The State of Illinois, Respondent.

      Order filed December 27, 1982.

    Turner Coleman, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Lynn W. Schock, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This cause coming before the Court by joint stipulation of the parties, the Court being fully advised in the premises, it is hereby ordered, adjudged, and decreed that:

Claimant is hereby awarded the sum of $500.00 as the complete and full satisfaction of his claim against the State of Illinois which arose between January 2, 1982, and March 25, 1982, as is more fully set out in the stipulation filed by the parties.


text:
    (No. 83-CC-0021
    James E. Dawson, Sr., plenary guardian of the estate of James E. Dawson, Jr., a disabled person, Claimant, v. The State of Illinois, Respondent.

      Order filed May 11, 1983.

    Ellis E. Reid, for Claimant.
    Neil F. Hartigan, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter comes before the Court upon Respondent’s motion to dismiss filed March 7, 1983.

Claimant seeks recovery for personal injuries sustained by him as a result of a July 3, 1980, automobile accident involving two other cars on the Kennedy Expressway. There are some attachments to the complaint showing Claimant has already received $100,000 in exchange for a covenant not to sue the driver of one of the other vehicles.

Respondent moves to dismiss this claim on the basis of the set-off provision of the Court of Claims Act (Ill. Rev. Stat. 1981, eh., 37, par. 439.24 — 6). It is asserted that the recovery of $100,000 from another party in return for a covenant not to sue completely sets off any possible recovery in this case, since the maximum award could be only $100,000.

This issue has arisen many times in the past, and the Court has uniformly held that if amounts received from other sources by a Claimant for the same incident are equal to, or exceed, the maximum tort award available here, the set-off provision prevents the recovery of any further amounts, regardless of whether or not Claimant’s damages exceed the statutory limit on recovery. (Estate of Anzalone v. State (1961), 24 Ill. Ct. Cl. 172; Williams v. State (1965), 25 Ill. Ct. Cl. 249; Estate of Powers v. State (1972), 28 Ill. Ct. Cl. 130.) There are no facts before us in the instant claim which provide any basis for a departure, from, or reversal of, this line of decisions.

It is hereby ordered that the Respondent’s motion to dismiss be, and the same is, granted, and this cause is dismissed.


text:
    (No. 83-CC-0093
    Kim E. Knauer, Claimant, v. The State of Illinois, Respondent.

      Order filed November 3, 1982.

    Kim E. Knauer, pro se, for Claimant.

      Tyrone C. Fahner, Attorney General (William Webber, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This cause coming on to be heard on the Respondent’s stipulation and the Court being fully advised in the premises finds that the documentation attached to the Respondent’s stipulation establishes a prima jade case that the suit for which claim is being made was beyond cleaning, that the cost of replacement was $141.00, and that the State, by failure to post warnings, either on the floor, in the elevator or across the doorway leading in or out of the elevator is guilty of negligence.

It is therefore ordered that this Claimant be granted an award in the amount of one hundred forty-one and 00/100 ($141.00) dollars.


text:
    (No. 83-CC-159
    Gomric & Kurowski, P.C., Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 15, 1982.

    Kevin Boyner, for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

The record in this cause indicated the purpose of the expenditure by the Department of Children & Family Services for which this claim was filed was for attorney fees for the termination of parental rights in an adoption case, and that the Attorney General has submitted a stipulation by Respondent based upon information forwarded to his office by said Department, as evidenced by the departmental report attached to the stipulation by Respondent.

Accordingly, this Court finds that this was a properly authorized expenditure at prices reasonable, usual and customary in the area where received. No part of this expenditure has been paid and the total outstanding is $327.00. Money was appropriated under appropriation and fund No. 001-41817-4400-05-00 of which appropriation sufficient funds for the payment of this obligation lapsed and were returned to the State Treasury.

The sole reason said claim was not paid is due to the lapse of the appropriation for the period during which the debt was incurred.

It is hereby ordered that the Claimant be awarded, in full satisfaction of any and all claims presented to the State of Illinois under the above captioned cause, the sum of three hundred twenty-seven and 00/100 ($327.00) dollars.


text:
    (No. 83-CC-0197
    James Colter, a/k/a Robin Elliott, and Jenner & Block, Claimants, v. The State of Illinois, Respondent.

      Opinion filed September 30, 1982.

    Jenner & Block, pro se, for Claimants.
    Tyrone C. Fahner, Attorney General (William R. Wallin, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This is a claim pursuant to “An Act to provide for representation and indemnification” (Ill. Rev. Stat. 1981, ch. 127, par. 1301 et seq.) (herein the Representation and Indemnification Act). Claimant, James Colter, sued several State officers and employees in a case entitled Colter v. Rowe (No. 78-CC-0429), in which he alleged violation of rights guaranteed by the eighth and fourteenth amendments to the United States Constitution while he was an inmate in the Stateville Correctional Center. Claimant, Jenner & Block, represented James Colter in that proceeding. That case was settled by an agreement dated June 17, 1982, which provided that the defendant State officers and employees pay $1,000 to James Colter and $2,000 to Jenner & Block. The State officers and employees assigned their rights to indemnification to the Claimant.

Under the Indemnification and Representation Act, a State officer or employee is entitled to representation by the Attorney General and indemnification for damages awarded, court costs, and attorney fees when he is sued in a civil proceeding in which the plaintiff alleges deprivation of a civil or constitutional right arising out of an act or omission occurring within the scope of his employment. The Act was passed in response to developments in Federal law which subjected State officers and employees to Federal suit.

Whether Claimants here are entitled to awards depends on whether the State officers and employees would be. The State officers and employees sued were all officers or employees of the Department of Corrections and were represented by the Attorney General. Thus, he has determined that the State officers and employees were entitled to the benefits of the Act.

We have examined the complaint and settlement agreement and have determined that the State officers and employees sued would be entitled to indemnification. They were acting within the scope of their employment. The Court did not find that the conduct was intentional, willful or wanton. We further find that the State officers and employees have assigned their right to Claimants here and that awards to Claimants are just and reasonable.

Claimant, James Colter, is hereby awarded $1,000.00, and Claimant, Jenner & Block, is awarded $2,000.00.


text:
    (No. 83-CC-0256
    John R. Clemons, Jackson County State’s Attorney, Claimant, v. The State of Illinois, Respondent.

      Order on motion to dismiss filed February 8, 1983.

      Order on motion for summary judgment filed June 23, 1983.

    John R. Clemons, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   ORDER ON MOTION TO DISMISS

Holderman, J.

This matter comes before the Court upon motion of Respondent to dismiss said cause and Claimant’s objections to said motion.

Respondent’s motion to dismiss sets forth that some of the claims for which recovery is sought are outlawed by the statute of limitations and objects to Claimant’s claim on the grounds that Claimant has failed to state a cause of action in his complaint.

It is the Court’s finding that there is a question as to whether or not Claimant’s complaint is satisfactory. Much of what Respondent has alluded to as a defect in the complaint is evidence and as such is discoverable and/or part of the elements of proof of the claim, the fact of which need only be alleged in the complaint at the proper time in this case.

It is hereby ordered that the complaint in this matter be, and the same is, stricken with leave granted to file an amended complaint within 60 days of the date of this order.

ORDER ON MOTION FOR SUMMARY JUDGMENT

Holderman, J.

This matter comes before the Court upon motion of summary judgment filed by Respondent and objection to said motion by Claimant.

Claimant has filed suit against the State of Illinois seeking to recover 10% of all fines received from Jackson County involving motor vehicle offenses which have been forwarded to the State by the circuit clerk of said county. It is Claimant’s position that the State’s Attorney is entitled to the fees for all traffic tickets from Jackson County.

Respondent takes the position that the State’s Attorney’s office is not entitled to the 10% deduction provided for in the statute unless the State’s Attorney’s office has actually prosecuted the offender, which prosecution then results in the collection of the fine of which the State’s Attorney is claiming a portion.

The original complaint; as well as the amended complaint, fails to allege active or overt prosecution by the office of the State’s Attorney. It also fails to allege that the State’s Attorney’s office appeared at the hearing, trial or other proceedings or that it participated in an active manner in the prosecution or conclusion of the offenses at any time from the inception to their end. Two cases are cited by the parties in dealing with the matter in question: City of Champaign v. Hill (1961), 29 Ill. App. 2d 429, and City of Decatur v. Curry (1976), 65 Ill. 2d 350. The courts, in both instances, went into a lengthy discussion of the issues involved and both came to the conclusion that in matters involving traffic violations within the city where the matter is handled entirely by the city authority, the State’s Attorney is not entitled to fees as would have been the case if he had actively participated in the prosecution.

It is noted that the statute itself provides that where the municipality makes the original arrest and follows up with the prosecution, then the municipality is entitled to the fines and penalties. It is clear from reading the two cases cited that it was the intention of the legislature that in some cases, such as the present case, fees should go to the municipality and not to the State.

It is the Court’s opinion that if the legislature had intended that the State’s Attorney’s office is automatically entitled to a fee for any and all traffic violations within the municipalities’ limits, this statute would have been so worded.. It is not so worded and does provide for distribution of fees.

It is the Court’s opinion, therefore, that the motion of Respondent for summary judgment is correct and should be granted. Motion for summary judgment is granted and this cause is dismissed.


text:
    (No. 83-CC-0281
    Paul Wasserman, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 13, 1982.

    Rosen and Rosen, Ltd., for Claimant.
    Tyrone C. Fahner, Attorney General (William R. Wallin, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

On Saturday, March 6, 1982, the Claimant, Paul Wasserman, who resides at 1420 Jonquil Terrace, Chicago, Illinois, was arrested by the Illinois State Police acting pursuant to an arrest warrant issued by the circuit court of Cook County. The arrest was made on the complaint of the Department of Registration and Education which had charged a Paul Wasserman with practicing dentistry without a license. After being handcuffed and removed from his residence, he was placed in a squad car and driven to the Chicago office of the Department for further processing. Only after additional questions was there a determination made that the wrong Paul Wasserman had been arrested.

The State has stipulated that it caused the wrong Paul Wasserman to be arrested and has agreed that this claim should be settled for $5,000.00.

While this Court is not bound by the stipulation, such a stipulation will not be rejected out of hand. It appears that the parties have seriously considered the merits of this claim. Such being the case, the Court allows the stipulation of the parties.

It is hereby ordered that Claimant, Paul Wasserman, be awarded the sum of $5,000.00 as full and final satisfaction arising out of the arrest of the Claimant.


text:
    (No. 83-CC-0297
    Joseph J. Evans, Claimant, v. The State of Illinois, Respondent.

      Order filed March 17, 1983.

    Joseph J. Evans, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Lynn W. Schock, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This cause coming before the Court by joint stipulation of the parties, the Court finds that the Respondent is liable to the Claimant for the sum of $245.65.

. It is therefore ordered, adjudged and decreed that an award be made to Claimant of $245.65 and that the stipulation of the parties be incorporated into this order.


text:
    (No. 83-CC-0300
    Owen Talbott, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 15, 1983.

    Owen Talbott, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Lynn Schock, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter comes before the Court upon Claimant’s claim for damages to his 1972 Dodge Monaco automobile on April 17, 1982. Claimant’s car was parked in the parking area of the White Pines State Park at Dixon, Illinois, while he and a companion went into a restaurant for lunch. While Claimant was in the restaurant, someone came in and said, “Who has a green Dodge out here?” and Claimant replied, “Well, I do.” The other individual then told Claimant he had better go look at it. He and his companion went out and found a tree limb was on the top of the car, having caved in the whole top.

At the hearing, claimant was asked if he had any evidence as to what caused this branch, or limb, to fall down and Claimant replied that he did not know what caused it to fall. He was then asked if he had any evidence that the tree was defective and he replied he did not.

Claimant’s companion, Norman Wallin, also testified at the hearing. When asked what he knew about the accident, he stated that Claimant had parked his car, they had gone into the restaurant and had lunch, and were then informed the tree branch had fallen on the car. He stated there was no way of knowing anything about this before it happened. When asked what the weather conditions were on the day in question, he said he did not recall if it had been raining or not but that there was no wind that day. This is in direct conflict to the testimony of the park ranger who testified that on the day in question, there were winds of up to 47 m.p.h. When questioned as to what caused this tree to fall, Wallin stated he did not know.

A park ranger from White Pines State Park testified that on April 17, the day of the accident, he was not on duty. He stated that on April 15, at approximately 6:05 p.m., a tree was struck by lightning, but that he was not aware of that fact until April 17. He stated he did know lightning had struck a tree because at 6:05 p.m. an alarm went off in a cabin in the park and that splinters of the tree landed on the roof of the cabin which is a very short distance from where the accident .happened. He further testified that several houses and trees were struck by lightning on the evening of April 15 and that it had been a bad storm. He stated that the first the State knew of this accident was on April 22 and he then began an investigation into weather conditions. He called the weather bureau in Moline, or Rock Island, and they informed him that on April 15, there had been thunderstorms starting on the afternoon of that day, that on April 16, they reported gusts of wind up to 48 miles per hour, on April 17, the winds were 47 miles per hour, and the Rockford office reported 47 mile-per-hour winds on April 17 at 2:57 p.m., with the maximum gusts about two hours after this tree limb fell on Claimant’s car at 1:00 p.m.

The park ranger further testified this was a Chinese elm tree and is, what he termed, a “trashy type tree.” His testimony was further to the effect that he had no knowledge a tree might have been struck by lightning on April 15 until he began his investigation into this incident.

This Court is therefore faced with the proposition that an accident occurred as a result of a limb falling in a State park and the fact that the record is completely devoid of any showing that the State had either actual or constructive knowledge of the condition of the tree that caused the damage. There is not any evidence in the record showing that the limb fell from the tree that was struck by lightning and the record is completely devoid of any evidence that the State had knowledge of any defects in the tree prior to this accident. As a matter of fact, the record does not even designate any particular tree as causing the damages in question.

This Court has held that the State of Illinois is not an insurer of the safety of persons who visit its parks and recreation areas, but rather that visitors to State parks are invitees to whom the State owes a duty of reasonable care in maintaining the premises. Heimann v. State (1977), 32 Ill. Ct. Cl. 111, Domermuth v. State (1966), 25 Ill. Ct. Cl. 353, and Kamin v. State (1953), 21 Ill. Ct. Cl. 467.

This Court has also laid down the rule the Claimant bears the burden of establishing, by a preponderance of the evidence, that Respondent breached its duty of reasonable care, that he was free of contributory negligence, and the negligence of Respondent proximately caused the injury.

Claimant offered no evidence to show Respondent had actual notice of the defect in the tree nor did Claimant offer any evidence from which this Court could conclude that the State had constructive knowledge of its existence. Respondent may be charged with constructive notice of a dangerous condition when, from all the circumstances in the case, it is determined that Respondent should have been aware of the existence of the condition in the exercise of reasonable care. Such evidence is lacking in the present case.

The Court also notes a complete lack of evidence in the record as to whether or not there was any other source from which Claimant could be reimbursed for his unfortunate loss.

There being no proof that Respondent was negligent in maintaining the park in question, this claim is hereby denied.


text:
    (No. 83-CC-0391
    Harvey J. Friedl, Claimant, v. The State of Illinois, Respondent.

      Order filed May 10, 1983.

    Harvey J. Friedl, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (James A. Koch, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This matter comes before the Court upon joint stipulation of Claimant and Respondent to the entry of an award for Claimant’s personal property damage in the amount of $194.55, Respondent having conceded liability for such loss to that extent. The Court being otherwise duly advised in the premises, therefore,

It is hereby ordered that an award be entered in favor of Claimant, Harvey FriedI, in the amount of $194.55 in full and final satisfaction of his personal property claim.


text:
    (No. 83-CC-0416
    State Employees’ Retirement System, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 4, 1983.

    State Employees’ Retirement System, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This cause comes on to be heard on the Respondent’s motion for reconsideration, due notice apparently having been given, and the Court being fully advised in the premises;

This is a claim by the State Employees’ Retirement System to recover from the Department of Mental Health and Development Disabilities a portion of the employees’ contribution to the retirement system which was said to have been underpaid by $286,004.39. On December 15, 1982, the Respondent agreed that said sum was due and owing based upon the departmental report and stipulated to the making of an award in the full amount sought. On January 11, 1983, we issued an order placing this claim on general continuance and ordered that more information be provided after noting several inconsistent, inaccurate, or incomplete statements in the departmental report. Respondent has now sufficiently supplied us with the information and explanations we requested. We know now what gave rise to this claim and do concur with the Respondent.

The departmental reports reveal that the balance remaining in the line item appropriation out of which this could have been paid was not sufficient to pay this obligation, but that there was available for transfer, had it been done in time, sufficient balances in other line item appropriations to have covered the cost of this obligation (had the allowable 2% been transferred for that purpose) as allowed by section 13.2 of “An Act relating to internal auditing in State government” (Ill. Rev. Stat. 1979, ch. 127, par. 149.2) and recognized in Butterfield v. State, 24 Ill. Ct. Cl. 85, as sufficient.

It is hereby ordered that the Claimant be awarded, in full satisfaction of any and all claims presented to the State of Illinois under the above captioned cause, the sum of two hundred eighty-six thousand four and 39/100 ($286,004.39).


text:
    (No. 83-CC-0431
    Brady Buckley, Claimant, v. The State of Illinois, Respondent.

      Order filed February 24, 1983.

    John Huffman, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This cause coming on to be heard on the stipulation of the Respondent and the Court being fully advised in the premises, having reviewed the record, finds that the terms of settlement and agreement is a reasonable and appropriate settlement of the dispute between the parties and agrees that in return for the Claimant’s adherence to the terms of said agreement, both now and in the future, said terms of settlement and agreement being hereby incorporated herein and being made a part of the terms of this award, does hereby grant this Claimant an award in the amount of five thousand seven hundred fifty and 00/100 ($5,750.00).


text:
    (Nos. 83-CC-0749, 83-CC-0750, 83-CC-0751
    Capital City Paper Co., Claimant, v. The State of Illinois, Respondent.

      Order filed February 4, 1983.

      Sorling, Northrop, Hanna, Cullen & Cochran, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

These three claims were made against the Illinois House of Representatives for materials allegedly furnished to Representative Ray Ewell, Representative Glenn Snyder, and Representative Wyvetter H. Younge in the amounts of $226.06, $20.38, and $68.78 respectively. In each case the Claimant filed the standard lapsed appropriation complaint form alleging that it had made demand for payment but its demand was refused on grounds that the appropriation out of which this claim could have been paid had lapsed.

The Respondent moved for dismissal based on information contained in the departmental reports. The departmental reports were issued by the Illinois House of Representatives. pursuant to Rule 14 of the Rules of the Court of Claims of the State of Illinois which established that this information is prima facie evidence of the facts set forth therein. The departmental reports establish that there were insufficient funds lapsing to pay these claims and the 2% transfer statute, section 13.2 of “An Act relating to internal auditing in State government” (Ill. Rev. Stat., ch. 127, par. 149.2), is unavailable. The 1970 Constitution of the State of Illinois, article VIII, section 2, and section 30 of “An Act relating to internal auditing in State government” (Ill. Rev. Stat., ch. 127, par. 166), prohibit expenditures exceeding an appropriation. These claims exceed the appropriation. In pertinent part the departmental reports point out that:

“The Representatives receive $17,000.00 each year to operate their district offices. They know if they exceed their allotment they must pay the additional costs.”

For this Court to pay an award under such circumstances would be tantamount to our making a new appropriation, a privilege expressly reserved by the constitutional provision cited above to the General Assembly or, if the quoted conclusion from the departmental is correct (conclusions are not accorded prima facie evidence status under Rule 14), it would be use of State funds for personal obligations. We are therefore constrained by operation of law to deny these claims.

However, we do note that with respect to Representative Ewell’s account there was 16 cents remaining and with respect to Representative Younge’s account there was 30 cents remaining unexpended.

Therefore, it is hereby ordered that Claimant be, and hereby is, awarded the total sum of $0.46 (forty-six cents).


text:
    (No. 83-CC-0895
    County of Cook, Claimant, v. The State of Illinois, Respondent.

      Order filed April 7, 1983.

    Susan Condon, for Claimant.
    Neil F. Hartigan, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter comes before the Court upon motion of Respondent for summary judgment and cross-motion of Claimant for summary judgment.

Claimant contends it is entitled to the sum of $48,504.61 for salaries of personnel, courtroom and office space, supplies and other expenses incurred in the prosecution of the case of People v. Bailey, No. 79 CG 58, arising out of a disturbance at the Pontiac Prison in Livingston County, Illinois.

Respondent, in its motion for summary judgment, states that at the close of fiscal year 1981 there was remaining in the appropriation made for such expenses the amount of $1,003.35. Respondent further set forth that after paying a prior claim, the balance remaining in this appropriation is now only $258.45. Respondent’s position is that the appropriation being exhausted, with the exception of the small amount above set forth, an award cannot be made because of the exhaustion of said appropriation.

Claimant cites the case of Fergus v. Brady (1917), 277 Ill. 272, which states that the Court of Claims has authority to grant an award for claims “expressly authorized by law” even if such award exceeds the balance of an appropriation of the general legislature. Claimant cites section 3 — 6—5 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 6—5) which is to the effect that payment of expenses of prosecutions where a person is charged with committing an offense while confined by the Department of Corrections is expressly authorized. Claimant’s cross-motion further sets forth that where a change of venue is granted, reimbursement will be made directly to the county where the case is actually tried. Ill. Rev. Stat. 1981, ch. 110, par. 2 — 107; County of Sangamon v. State of Illinois, 30 Ill. Ct. Cl. 527.

This Court has previously passed upon situations of this kind. (See County of Sangamon v. State of Illinois, 30 Ill. Ct. Cl. 527, and County of Cook v. State of Illinois, 27 Ill. Ct. Cl. 356.) In the latter case, the Court held “where claimant incurred obligations as a matter of law, and where appropriation was depleted prior to claimant’s filing for reimbursement, an award would be entered.”

Respondent’s motion for summary judgment is denied, and award is hereby entered in favor of Claimant in the amount of $48,504.61, in full satisfaction of any and all claims against Respondent.


text:
    (No. 83-CC-1028
    (Nos. 82-CC-2764, 83-CC-0467, 83-CC-1370, 83-CC-1576, 83-CC-2413, 83-CC-2508, 83-CC-2571,83-CC-2697, 83-CC-2714, 83-CC-2788
    Mary Norman, Admx. of the Estate of Keith Biggerstaff; Shel Bannister et al.; G. Flint Taylor; Lonnie Arsberry et al; G. Flint Taylor and Jan Susler; Siegfried Stubbs; Richard Black; University of Chicago; Arnesta Griggs; Legal Assistance Foundation of Chicago; and Andrew W. Edwards and Leahy & Leahy, Claimants, v. The State of Illinois, Respondent.

      Opinion filed May 2, 1983.

      Opinion filed June 25, 1982.

      Opinion filed December 15, 1982.

      Opinion filed June 29, 1983.

    David C. Thomas, for Claimant Mary Norman.
    G. Flint Taylor, for Claimant Shel Bannister.
    Jan Susler, for Claimant G. Flint Taylor.
    Ruthanne De Wolfe, for Claimants Lonnie Arsberry et al.

    Jan Susler, for Claimants G. Flint Taylor and Jan Susler.
    J. David Farren, for Claimant Siegfried Stubbs.
    Robert L. Byman, of Jenner & Block, for Claimant Richard Black.
    Mary Heyrman, of Mandel Legal Aid Clinic, for Claimant University of Chicago.
    Robert V. Boharic, for Claimant Arnesta Griggs.
    Sally T. Elson, for Claimant Legal Assistance Foundation of Chicago.
    Leahy & Leahy, for Claimants Andrew W. Edwards and Leahy & Leahy.
    Neil F. Hartigan, Attorney General (Robert Shuff and William Wallin, Assistant Attorneys General, of counsel), for Respondent.
   Roe, C. J.

This is a claim pursuant to an Act to provide for representation and indemnification (Ill. Rev. Stat. 1981, ch. 127, par. 1301 et seq.) hereinafter referred to as the Act. The Claimant sued several State officers and employees in a case entitled Norman v. Sielaff, 76-C-4677, in which she alleged violation of rights guaranteed by the United States Constitution while the deceased was an inmate in the custody of the Illinois Department of Corrections. That case was settled by an agreement dated October 28, 1982, which provided that the defendant State officers and employees pay $22,000.00.

Under the Representation and Indemnification Act, a State officer or employee is entitled to representation by the Attorney General and indemnification for damages awarded, court costs, and attorney fees when he is sued in a civil proceeding in which the plaintiff alleges deprivation of a civil or constitutional right arising out of an act or omission occurring within the scope of his employment. The Act was passed in response to developments in Federal law which subjected State officers and employees to Federal suit.

Whether Claimant here is entitled to an award depends on whether the State officers and employees would be. The State officers and employees sued were all officers or employees of the Department of Corrections and were represented by the Attorney General. Thus, he has determined that the State officers and employees were entitled to the benefits of the Act.

The first claim in this Court made pursuant to the Representation and Indemnification Act was DeWoskin v. State, No. 78-CC-1703. (Although the claim is still pending, the relevant issue was decided in an as yet unpublished opinion dated April 20, 1981). Since that time numerous other claims under the Act have been made in the Court of Claims and paid by the Court of Claims following legislative funding of the award made.

Since DeWoskin and after reviewing the subsequent claims we have had the opportunity of further examination of the Act and we now find it necessary to further define the limits of jurisdiction which we will exercise over such claims.

In DeWoskin we stated at page six as follows:

“We hold that a cause of action brought pursuant to the Indemnification Act is properly cognizable in this Court, under section 8(a) of the Court of Claims Act, because it is a claim against the State founded upon a law of the State.”

We said that the nature of a claim arising under the Act is the collection by a State employee of money to which he or she becomes entitled by complying with the provisions of the statute. We also noted that there was no provision made in the Act for administrative review of the determinations made by the Attorney General and therefore a court in the judicial branch could not be placed in the position of entering a judgment for monetary damages against the State by overturning the Attorney General’s determinations. Thus we found that the Court of Claims was the only forum to which a party could come to have the Indemnification Act enforced (except perhaps in a situation involving a mandamus action, a situation which to our knowledge has not arisen to date and one on which we do not comment or speculate).

DeWoskin was a contested matter. The relevant issue arose out of a determination by the Attorney General that the Claimant therein was not entitled to representation and indemnification. We found it to be our function essentially to review that determination. There were issues of fact and law to be decided.

All the claims brought pursuant to the Act after DeWoskin were uncontested in this Court as is the case at bar. We have not been asked to decide any issue; we have been used as a conduit for payment of an obligation of the State. In the case at bar compliance with the requirements of the Act entitling Claimant to its coverage was determined by the Attorney General prior to the claim being filed and the only thing remaining is payment. This situation is expressly covered by section 2(d) of the Act which provides as follows:

“(d) The costs of indemnification, court costs and litigation expenses and other costs of providing a defense, including attorneys' fees, paid or obligated under this Section, shall be allocated to and paid from the budget of the General Assembly, court, State officer, department, division, bureau, board, commission, committee, agency or instrumentality, against whose emplyee the claim or cause of action is asserted.” (Ill. Rev. Stat. 1081, eh. 127, par. 1302(d)).

The Act does not make provision for payment through the Court of Claims when the obligation is at this stage. The Claimant has an express statutory remedy which there has been no showing or allegation that he has exhausted as required by section 25 of the Court of Claims Act. Ill. Rev. Stat. 1979, ch. 37, par. 439.24 — 5.

In this case the employees worked for the Department of Corrections. It is from their budget that the Act provides payment should be made. If the Department of Corrections has a line item appropriation out of which this claim could be paid, the obligation is due and payable immediately. If the Department does not have such an appropriation, it should seek one.

Wherefore, it is hereby ordered that this claim be, and hereby is, dismissed.

OPINION

Roe, C. J.

This is a claim pursuant to An Act to provide for representation and indemnification (Ill. Rev. Stat. 1979, ch. 127, par. 1301 et seq.), herein the Representation and Indemnification Act. The Claimants represented prisoners who sued several State officers and employees in cases entitled Preston v. Thompson, 78-C-3512 and Prisoners of Pontiac v. Thompson, 78-C-3006, in which they alleged violation of civil rights guaranteed by the eighth amendment to the United States Constitution while they were inmates in the Pontiac Correctional Center. The suit arose out of the deadlock imposed at the Pontiac Correctional Center in July 1978. In a memorandum opinion and order dated June 30, 1981, the Federal district court awarded attorney fees of $101,000 and $3,322.73 in costs. On May 24, 1982, this decision was affirmed by the United States Court of Appeals for the Seventh Circuit Court.

Under the Representation and Indemnification Act, a State officer or employee is entitled to representation by the Attorney General and indemnification for damages awarded, court costs, and attorney fees when he is sued in a civil proceeding in which the plaintiff alleges deprivation of a civil or constitutional right arising out of any act or omission occurring within the scope of his employment. The Act was passed in response to developments in Federal law which subjected State officers and employees to Federal suit.

Whether Claimants here are entitled to an award depends on whether the State officers and employees would be. The officers and employees sued were all officers or employees of the Department of Corrections and Law Enforcement and were represented by the Attorney General. We have examined the complaint and Respondent’s stipulation and the memorandum opinion and order and opinion on appeal and have determined that the State officers and employees sued would be entitled to indemnification. They were acting within the scope of their employment. The Court did not find that the conduct was intentional, willful or wanton.

Claimants are hereby awarded $104,322.73 to be distributed as follows:

Shel Bannister $12,000.00

Gerald Block 5.000. 00

Michael Deutsch 5.000. 00

Jeffrey Haas 20,000.00

Charles Hoffman 5.000. 00

Laurie Shatsoff 5.000. 00

G. Flint Taylor 20,000.00

David C. Thomas 25,000.00

Malcolm Young 4.000. 00

Peoples Law Office 3,322.73

OPINION

Roe, C.J.

This is a claim pursuant to An Act to provide for representation and indemnification (Ill. Rev. Stat. 1981, ch. 127, par. 1301 et seq.), herein the Representation and Indemnification Act. The Claimant represented a prisoner who sued several State officers and employees in a case entitled Smith v. Rowe, No. 77-1029, in which she alleged violations of civil rights guaranteed by the first, fifth, sixth, and fourteenth amendments to the United States Constitution while she was an inmate in a correctional center. In an order dated May 7, 1982, the Federal district court awarded interim attorney fees of $15,000. On September 23, 1982, an appeal of this order was dismissed by the United States Court of Appeals for the Seventh Circuit.

Under the Representation and Indemnification Act, a State officer or employee is entitled to representation by the Attorney General and indemnification for damages awarded, court costs, and attorney fees when he is sued in a civil proceeding in which the plaintiff alleges deprivation of a civil or constitutional right arising out of any act or omission occurring within the scope of his employment. The Act was passed in response to developments in Federal law which subjected State officers and employees to Federal suit.

Whether Claimant here is entitled to an award depends on whether the State officers and employees would be. The officers and employees sued were all officers or employees of the Department of Corrections and Law Enforcement and were represented by the Attorney General. We have examined the complaint, the stipulation, and the order and opinion on appeal and have determined that the State officers and employees sued would be entitled to indemnification.

Claimant is hereby awarded $15,000. The question of interest is reserved.

OPINION

Roe, C.J.

These are all claims made pursuant to An Act to provide for representation and indemnification (Ill. Rev. Stat. 1981, ch. 127, par. 1301 et seq.). The underlying facts in these claims are not in dispute and for the purpose of this opinion need not be restated herein. Typical of the procedural and legal circumstances in each is Norman v. State, No. 83-CC-1028, and reference is made to our opinion therein, dated May 2, 1983, for background information. Said opinion could be controlling as to all of these claims.

However, the Respondent has petitioned the Court for reconsideration of said claim along with others which were dismissed based on our decision on that claim. The additional claims were filed subsequent to our decision in Norman, supra. The Respondent has stipulated to the facts and to our granting of awards of the full amounts claimed in each case.

Two cases representative of the group, Norman and Bannister, were set for oral argument before the full Court and oral arguments were held on June 28, 1983, at the Court of Claims courtroom in Springfield, Illinois. We have carefully reviewed the Respondent’s petition for reconsideration and considered the oral arguments preen ted. For the most part, we find them long ón rhetoric and short on substance. Moreover, we think the Respondent has misinterpreted the Norman opinion.

In our previous opinion we stated that since exercising jurisdiction over this type of claim a little over two years ago we had the opportunity to further examine the situation and found it necessary to further define the parameters of our jurisdiction with respect to these types of claims. It was our opinion that the approach we had taken in the past should be modified as should the Respondent’s approach to the problem.

We did not comment on the merits of the claim. There is no question that the Respondent does in fact and law owe the money sought in each of these claims. We simply stated that under the circumstances it was premature. The claim is no different from any other ordinary and contingent expense incurred by a State agency. An attempt should be made by the agency which incurred the obligation to pay it itself in the ordinary course of business just as it would any other bill. Contrary to Respondent’s stated perceptions of this Court and its new position, we have not abrogated our role as an advisory body to the General Assembly but are fulfilling it.

Respondent has essentially presented six arguments in its petition for reconsideration which we will address in the order raised.

The first argument is that our position ignores the budgeting and prediction considerations of the agencies. It stated that prior appropriations to each agency to pay indemnification claims would be extremely difficult and the amount of appropriation difficult to predict. Given the realities of the nature of a civil rights lawsuit this is simply not true. Those cases are rarely, if ever, decided in the same year they are filed. The agency knows at the time it presents its budget to the legislature how many lawsuits are pending and the potential amount of damagés. Prediction is unnecessary. A budget request to the legislature is. While it may be that the agency does not want to request funds to pay damages allegedly caused by the civil rights violations of its employees, it should not be able to avoid its obligation by sending the victim here. The legislative appropriations process is being unnecessarily bypassed and, in view of the express provisions of the Indemnification Act we quoted on page four of our previous opinion in Norman, improperly so.

The second argument Respondent raised was that requiring the agency to make the budget request before the legislature could delay payment for six months or more during which period the State could be liable for interest. Such a scenario would not occur if a prior appropriation was obtained. Moreover, in practice this would not occur regardless of a prior appropriation. First, our previous opinion was rendered sufficiently far in advance of the legislative timetable deadlines to allow the agency to make an appropriation request during the current legislative session. Historically, • ordinary and contingent operating expenses appropriations bills of an agency have been signed by the Governor much sooner than the Court of Claims’ special awards bill by which Respondent would have this claim paid. Claims of this type cannot be paid through this Court directly if the amount sought is in excess of $1,000.00 without prior legislative approval and appropriation and approval by the Governor. This can only be obtained twice a year so Respondent’s position would clearly cause more interest to accrue. Secondly, our experience with this type of claim has shown us, as demonstrated by the filing dates, that Respondent is especially adept at controlling the date on which a claim of this nature is settled.

The third argument offered was that our position would cause this type of claim to be presented in piecemeal fashion with no general accounting for the impact of them. All State agencies submit separate budgets in advance of the fiscal year and both the legislature and the Bureau of the Budget can better plan and account for them if they are aware of them in advance rather than when they are presented in a small line item of last minute amendment to the Court of Claims’ special awards bill.

The fourth argument was based on the language of the Indemnification Act which we quoted on page four of our previous opinion. Respondent seeks to draw a distinction between the words “budget” and “appropriation”. The distinction is only an insignificant one of semantics and need not be further addressed.

The fifth argument is that our position was contrary to legislative policy as evidenced by its past payment of such claims through this Court and no indication given through statutory change of dissatisfaction with the past procedure. We are simply fulfilling our obligation to advise the legislature of a situation which has not been properly presented to it in the past. This argument is interesting in view of Respondent’s strongly asserted position in the DeWoskin case that we did not have jurisdiction.

The sixth argument is based on a misinterpretation of section 23 of the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.23). That section was inserted to cure certain perceived legal infirmities of the funding of Court of Claims’ awards under our previous constitution and to voice the legislative policy against paying private bills but to have claims against the State presented to this Court first. As pointed out previously, we view these claims as ordinary expenses and not as of yet a proper “claim” to be' filed in this Court.

In addition to the Respondent’s petition for reconsideration, we feel that certain arguments made at the hearing should be addressed.

The parties sought to draw analogies between this type of claim and those involving lapsed appropriations. In its petition Respondent posed the question: Is the Court suggesting that in every claim a claimant should first seek an appropriation to the agency involved? This has never been the Court’s position. It is our position, however, that before an agency incur an ordinary expense there be monies appropriated to pay it. Respondent further stated that every agency has authority to pay certain kinds of claims but is not appropriated the money or enough money to do so. If the agency does not have money to pay an obligation, it is not authorized to incur it as a general rule. The same is true if it has an insufficient amount of money. With the exception to the general rule, those obligations where the agency is “expressly required by law” to assume the obligation, at least some funds were previously on hand to pay such claims.

For purposes of clarification we also want to address our remarks in the previous Norman opinion where we said:

“All the claims brought pursuant to the (Indemnification) Act after DeWoskin were uncontested in this Court as is the case at bar. We have not been asked to decide any issue; we have been used as a conduit for payment,” Norman, supra, 3, 4.

We did not intend to imply that we would not entertain uncontested claims in this Court. Claims for lapsed appropriations must be brought here as well as other claims which eventually are settled or stipulated to. What we meant was that this Court should not be used for the purpose of essentially obtaining a deficiency appropriation to pay what we feel is an ordinary and foreseeable expense which should, under the present statutory framework be paid by the agency which incurred it.

It was also urged by the parties during oral arguments that our decision in the Norman case be applied prospectively so as not to work an undue hardship on the Claimants who through no fault of their own have been put in the middle of the issues herein. We think it should be pointed out that those Claimants who accepted assignments of rights to indemnificaton after the Norman opinion should have been on notice. We also think it relevant to reiterate here that the Norman opinion was rendered sufficiently far in advance of the legislature’s deadlines to allow the agencies to seek appropriations this session. However, because our position has been a significant and important departure from past practice, and so as not to work undue hardship on the Claimants, we hereby order that these claims be, and hereby are awarded in the amounts agreed to as per the stipulations on file.

In conclusion we feel that our approach stated in the previous Norman opinion and this opinion is correct as a matter of law based on the present statutory framework and the facts of these cases, that our position will be applied prospectively with respect to any case of this nature not pending as of the date of this opinion, and that we are fulfilling our role as an advisory body to the General Assembly and furthering the public policy of the State of Illinois.

83-CC-1028 Mary Norman Claimant awarded $22,500.00
82- CC-2764 Shel Bannister et al. Claimants awarded $133,829.70
83- CC-0467 G. Flint Taylor Claimant awarded $17,678.74
83-CC-1370 Lonnie Arsberry et al. Claimants awarded $12,200.00
83-CC-1576 G. Flint Taylor et al. Claimants awarded $2,150.00
83-CC-2413 Seigfried Stubbs Claimant awarded $3,585.00
83-CC-2508 Richard Black Claimant awarded $37,179.75
83-CC-2571 University of Chicago Claimant awarded $30,000.00
83-CC-2679 Arnesta Griggs Claimant awarded $12,500.00
83-CC-2714 Legal Assistance Foundation of Chicago Claimant awarded $4,532.60
83-CC-2788 Andrew W. Edwards et al. Claimants awarded $72,991.00


text:
    (No. 83-CC-1244
    Donald Reinking and Vivian Reinking, Claimants, v. The State of Illinois, Respondent.

      Order filed April 29, 1983.

    Robert C. Jenkins, for Claimants.
    Neil F. Hartigan, Attorney General (James A. Koch, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This cause coming on before the Court on the joint stipulation of the Claimants and the Respondent, by their respective attorneys, and the Court being fully advised in the premises:

It is hereby ordered that the sum of $100.00 be awarded to Donald and Vivian Reinking and $256.86 be awarded to State Farm Mutual Automobile Insurance Company, and this shall constitute full and final satisfaction of the claim herein or any other claim arising out of the same occurrence.