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Gocheff v. State Community College

OPINION FILED FEBRUARY 23, 1979.

GEORGE GOCHEFF, SR., INDIV. AND AS EX'R OF THE ESTATE OF ELLA GOCHEFF, DECEASED, PLAINTIFF-APPELLANT,

v.

STATE COMMUNITY COLLEGE OF EAST ST. LOUIS ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of St. Clair County; the Hon. D.W. COSTELLO, Judge, presiding.

MR. PRESIDING JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 21, 1979.

This is an appeal from an order of the circuit court of St. Clair County allowing the motion of defendants State Community College of East St. Louis and Gerald Crenshaw to quash service of summons.

This action was instituted by George Gocheff, Sr., individually and as executor of the estate of Ella Gocheff, deceased, his wife. Plaintiff alleged that on June 23, 1976, he was operating and his wife was a passenger in an automobile proceeding in a northerly direction on Route 163 near its intersection with Route 460 in St. Clair County, Illinois. At the same time it was alleged that defendant Gerald Crenshaw, an employee of the State Community College of East St. Louis, was driving an automobile owned by the Community College in an easterly direction on Route 460. Plaintiff further alleged that as a result of Crenshaw's negligence committed while acting as the agent of State Community College of East St. Louis, a collision occurred between the two vehicles causing injury to himself and causing injuries resulting in the death of Ella Gocheff on October 1, 1976. The complaint sought monetary damages for which defendants were alleged to be jointly and severally liable.

Contending that the trial court lacked jurisdiction over the subject matter of the action pursuant to section 8 of the Court of Claims Act (Ill. Rev. Stat. 1975, ch. 37, par. 439.8(d)), defendant entered a special limited appearance and moved to quash service of summons and the complaint. The trial court granted the motion and quashed service.

• 1 Initially, we entertain some doubt as to whether defendants' special limited appearance and the attendant motion to quash service was the proper procedure to attack subject matter jurisdiction in this case. Section 20 of the Civil Practice Act provides merely that a special appearance may be entered "for the purpose of objecting to the jurisdiction of the court over the person of the defendant." (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 110, par. 20(1).) Nevertheless, we note that special limited appearances have been employed in other reported cases without comment. (Powers v. Telander, 129 Ill. App.2d 10, 262 N.E.2d 342; Zalduendo v. Zalduendo, 45 Ill. App.3d 849, 360 N.E.2d 386; Golden v. Holaday, 59 Ill. App.3d 866, 376 N.E.2d 92.) In any case, subject matter jurisdiction may not be waived and it is generally said that it may be raised at any time and in any manner which properly calls the court's attention to that fact. (Wetzel v. County of Hancock, 143 Ill. App. 178.) Thus, for purposes of review, we shall consider the appearance as a motion to dismiss and the relief granted as a dismissal of the complaint.

The sole question for our review is whether the trial court erred in finding that this was an action against the State of Illinois and then declining to take jurisdiction over the subject matter. Section 4 of article XIII of the 1970 Illinois Constitution provides:

"Except as the General Assembly may provide by law, sovereign immunity in this State is abolished."

Section 1 of "An Act in relation to immunity for the State of Illinois" (Ill. Rev. Stat. 1973, ch. 127, par. 801) retained sovereign immunity except as provided in the Court of Claims Act. Section 8 of the Court of Claims Act (Ill. Rev. Stat. 1975, ch. 37, par. 439.8), in effect at the time of the accident in question, established the jurisdictional guidelines of the Illinois Court of Claims. Subparagraph (d) of that act dealt specifically with actions sounding in tort and provided in pertinent part:

"All claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit, and all like claims sounding in tort against the Medical Center Commission, the Board of Trustees of the University of Illinois, the Board of Trustees of Southern Illinois University, the Board of Regents of Southern Illinois University, the Board of Regents of the Regency Universities System or the Board of Governors of State Colleges and Universities; * * *."

Since defendant State Community College of East St. Louis is not specifically enumerated in the above statute and is not encompassed within any of the State agencies named, the narrow issue as to this defendant becomes whether it was properly considered a division of the "State" as used in the above statute.

• 2 Illinois courts> have often stated that whether a particular suit falls within the prohibition of actions brought against the State is dependent upon the issues involved and the relief sought. (Scoa Industries, Inc. v. Howlett, 33 Ill. App.3d 90, 337 N.E.2d 305; Moline Tool Co. v. Department of Revenue, 410 Ill. 35, 101 N.E.2d 71.) In this case the plaintiff seeks monetary damages for the negligent operation of a vehicle by one of the defendant State Community College's employees, also named as a defendant to this suit. Our analysis must not stop here, however. Not all public bodies closely related to the State are considered part of the State and therefore immune from suit. Whether an action brought against an officer or agent of the State is actually an action against the State itself depends upon the degree of administrative and financial autonomy which the agency or department possesses. As explained by the Supreme Court of Illinois in People v. Illinois State Toll Highway Com., 3 Ill.2d 218, 227, 120 N.E.2d 35:

"The multiplicity of factors which the courts> have considered in reaching a decision of this question makes it impracticable to extract a simple rule which will fit every situation. The factor entitled to most weight, in our opinion, is that under no circumstances can the general funds of the State be reached in order to satisfy an obligation of the commission [Illinois State Toll Highway Commission]. That factor, together with the largely independent control of the commission over the construction and maintenance of the proposed toll roads, permits it to be regarded as an independent entity so far as subjection to suit is concerned."

For example, in People ex rel. Board of Trustees v. Barrett, 382 Ill. 321, 46 N.E.2d 951, the supreme court held that the University of Illinois, which at that time had not been specifically afforded immunity from suit in circuit court by the legislature, possessed such a high degree of autonomy in the management of its duties and ...


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