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Kane v. Bd. of Governors of State Colleges

OPINION FILED NOVEMBER 10, 1976.

VIRGINIA KANE, ADM'RX OF THE ESTATE OF CHARLES KANE, DECEASED, PLAINTIFF-APPELLANT,

v.

BOARD OF GOVERNORS OF STATE COLLEGES AND UNIVERSITIES ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Sangamon County; the Hon. SIMON L. FRIEDMAN, Judge, presiding.

MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:

The plaintiff appeals from an order of the Circuit Court for the Seventh Judicial Circuit, Sangamon County, dated January 21, 1975, which dismissed her complaints seeking damages for the wrongful death of her husband and a declaratory judgment permitting her to file suit against the defendants in the circuit court instead of the Illinois Court of Claims.

On June 30, 1972, the plaintiff's husband, Charles Kane, an associate professor of physical education at Northeastern Illinois University was shot and killed on the university campus in Chicago by a student who had earlier threatened the decedent's life.

The record on appeal indicates that the plaintiff filed: a workmen's compensation claim before the Industrial Commission of the State of Illinois on August 23, 1972; a wrongful death action in the Circuit Court of Cook County on June 27, 1973; and a complaint in the Circuit Court of Cook County on June 27, 1973, seeking a judgment declaring portions of the Court of Claims Act (Ill. Rev. Stat. 1973, ch. 37, par. 439.1 et seq.) unconstitutional. Venue in the latter two actions was transferred by motion and stipulation from the Circuit Court of Cook County to the Circuit Court for the Seventh Judicial Circuit, Sangamon County, which consolidated the two cases. The defendants moved to dismiss the complaint for damages on the grounds that the plaintiff was suing the State of Illinois, said suit being required to be brought in the Illinois Court of Claims, and that plaintiff's sole remedy was provided by the Workmen's Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.). The defendants also moved to dismiss the complaint for declaratory relief on the ground that no constitutional issue had been raised insofar as the plaintiff was afforded a remedy by the Workmen's Compensation Act. As mentioned above, the trial court allowed defendants' motion and entered an order dismissing the plaintiff's consolidated complaints with prejudice.

The General Assembly of the State of Illinois has expressly provided that the State be covered by the Workmen's Compensation Act. Section 2 of the Act provides as follows:

"An employer in this State, who does not come within the classes enumerated by Section 3 of this Act, may elect to provide and pay compensation for accidental injuries sustained by any employee, arising out of and in the course of the employment according to the provisions of this Act, and thereby relieve himself from any liability for the recovery of damages, except as herein provided. The State of Illinois hereby elects to provide and pay compensation according to the provisions of this Act." Ill. Rev. Stat. 1973, ch. 48, par. 138.2.

The defendants rely on the recent case of Williams v. Medical Center Com. (1975), 60 Ill.2d 389, 328 N.E.2d 1, as authority for their contention that the Board of Governors of State Colleges and Universities and Northeastern Illinois University are arms of the State of Illinois which are covered by the aforementioned statutory election of the Act. The defendants argue that the Board and University are not autonomous and independent of the State even though they constitute a separate body politic and corporate. In Williams, our supreme court held that the Medical Center Commission in Chicago, a body politic and corporate, is an arm of the State of Illinois and only subject to suit in the Illinois Court of Claims pursuant to the Court of Claims Act (Ill. Rev. Stat. 1973, ch. 37, par. 439.1 et seq.). The Williams' court noted that:

"Whether the Medical Center Commission is to be regarded as an arm of the State is therefore the first question which we must decide. Both the Medical Center Act and the Court of Claims Act refer to the Medical Center Commission by name, and each directs that actions against the Commission which sound in tort shall be prosecuted in the court of claims. Beyond this legislative characterization there are additional indications that the Commission is in fact an agency of the State. Its personnel must be hired pursuant to the Personnel Code of the State; it is required to submit to the General Assembly biennial reports of its past operations and its future programs; its contracts must be made in accordance with the Civil Administrative Code which governs State agencies; its procedures and its fiscal affairs are subject to audit by the Department of Finance like other State agencies; it can convey its real estate only with the written consent of the Governor; and the General Assembly regularly appropriates funds for the compensation of its employees and its acquisition and demolition of buildings. (Ill. Rev. Stat. 1973, ch. 91, pars. 126, 128, 129, 129b, 130; Pub. Act 78-1002; Pub. Act 77-1906.) In our opinion the Medical Center Commission is an arm of the State and the immunity granted by the General Assembly was authorized by section 4 of article XIII of the Constitution." (60 Ill.2d 389, 393-94, 328 N.E.2d 1; accord, Seifert v. Standard Paving Co. (1976), 64 Ill.2d 109, 355 N.E.2d 537.)

The facts of the instant case are similar to those in Williams because not only does section 8 of the Court of Claims Act refer to the Board by name (Ill. Rev. Stat. 1973, ch. 37, par. 439.8), but numerous statutory provisions expressly or impliedly characterize the Board as an arm of the State. For instance, the Board is a creation of the General Assembly and is appointed by the Governor with the consent of the Senate. (Sections 1 and 2 of the State Colleges and Universities Act (Ill. Rev. Stat. 1973, ch. 144, pars. 1001-1002).) The Board possesses the power of eminent domain, can be sued only in the Court of Claims and holds all real property "for the People of the State of Illinois." (Section 7 of the State Colleges and Universities Act (Ill. Rev. Stat. 1973, ch. 144, par. 1007).) All of the Board's excess revenues are payable to a special fund in the State Treasury and the General Assembly has the power to make appropriations from that fund for the use of the Board. (Section 6a of the State Auditing Act (Ill. Rev. Stat. 1973, ch. 127, par. 142a).) The Board's expenditures are subject to regulation by the department of General Services and subject to audit by the State Auditor General. (Section 67 of the Civil Administrative Code of Illinois (Ill. Rev. Stat. 1973, ch. 127, par. 63b13); section 6 of the State Auditing Act (Ill. Rev. Stat. 1973, ch. 127, par. 142).) Finally, employees of the Board are covered by the State University Civil Service System (section 36b of the University Civil Service System Act (Ill. Rev. Stat. 1973, ch. 24 1/2, par. 38b1)), and they are participants in the State Universities Retirement System. Sections 15-106, 15-134 of the Illinois Pension Code (Ill. Rev. Stat. 1973, ch. 108 1/2, pars. 15-106, 15-134).

The plaintiff attempts to distinguish the Williams' decision from the instant case by relying on Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill.2d 11, 163 N.E.2d 89, which states:

"The reasons for allowing or denying immunity apply equally to all school districts without regard to the manner of their creation." (18 Ill.2d 11, 14, 163 N.E.2d 89.)

The plaintiff seems to be comparing the Board and Northeastern Illinois University with local school districts which were held in Molitor to be outside the veil of sovereign immunity in part because a local school district is a quasi-municipal corporation. (18 Ill.2d 11, 14, 16, 163 N.E.2d 89.) The plaintiff, however, is clearly incorrect in attempting such a comparison because our supreme court stated in Williams that:

"Our views with respect to the immunity of local governmental units were stated in Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill.2d 11, Harvey v. Clyde Park District (1964), 32 Ill.2d 60, and many other opinions. See Sweney Gasoline & Oil Co. v. Toledo Peoria & Western R.R. Co. (1969), 42 Ill.2d 265; Hutchings v. Kraject (1966), 34 Ill.2d 379; Lorton v. Brown County Community Unit School District No. 1 (1966), 35 Ill.2d 362.

Those decisions, however, did not involve the sovereign immunity of the State or the validity of the Court of Claims Act * * *." (6 ...


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