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Liebman v. Bd. of Governors

OPINION FILED DECEMBER 7, 1979.

RONALD A. LIEBMAN, PLAINTIFF-APPELLANT,

v.

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



APPEAL from the Circuit Court of Cook County; the Hon. ARCHIBALD J. CAREY, JR., Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Plaintiff brought this action in the circuit court of Cook County against defendants Board of Governors of State Colleges and Universities (Board) and Benjamin Alexander, President of Chicago State University. In granting defendants' motion to dismiss, the trial court found plaintiff's suit to be an action sounding in contract against the State of Illinois and therefore, maintainable only in the Court of Claims. On appeal, plaintiff contends that the Board is not an agency of the State and, consequently, may be sued in the circuit court.

According to the allegations of his complaint, plaintiff was employed as a teacher at Chicago State University, a part of the State Colleges and Universities System. His employment contract extended from January 1, 1977, to January 30, 1977, and expressly incorporated the bylaws and governing policies of the Board. After completion of his term of employment, Liebman learned that he would not be retained as a teacher for the fall term. He then requested a review of that decision as provided for in the Board's bylaws. This request was denied. In response, plaintiff brought this suit predicated on the defendants' breach of his contract by refusing to review the University's decision not to retain his services. In his prayer for relief, he sought monetary damages, reinstatement and other appropriate equitable relief as determined by the court.

Defendants moved to dismiss the complaint on the ground that it was an action sounding in contract brought against an agency of the State. Thus, the action was maintainable only in the Court of Claims. The trial court agreed and dismissed the action with prejudice.

OPINION

Before proceeding to plaintiff's arguments, a brief discussion of sovereign immunity in the State of Illinois is warranted. Prior to 1970 sovereign immunity existed by virtue of article IV, section 26, of the Illinois Constitution of 1870. Section 26 stated: "The state of Illinois shall never be made defendant in any court of law or equity." The Illinois Constitution of 1970, however, abolished sovereign immunity except to the extent that the General Assembly provided otherwise. Article XIII, section 4, of the Illinois Constitution of 1970 states: "Except as the General Assembly may provide by law, sovereign immunity in this state is abolished." In response, the General Assembly enacted the following piece of legislation in 1972:

"Except as provided in `AN ACT to create the Court of Claims, to prescribe its powers and duties, and to repeal An ACT herein named', filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court." (Ill. Rev. Stat. 1977, ch. 127, par. 801.)

Thus, with the enactment of this legislation in 1972, the cloak of sovereign immunity was again brought forth and its protection limited only by the provisions of the Court of Claims Act.

The limits on the sovereign immunity of the State relevant to this action are defined by the Court of Claims Act as follows:

"The court [Court of Claims] shall have exclusive jurisdiction to hear and determine the following matters:

(b) All claims against the State founded upon any contract entered into with the State of Illinois

(d) 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 suits sounding in tort against * * * the Board of Governors of State Colleges and Universities; * * *." (Ill. Rev. Stat. 1977, ch. 37, par. 439.8.)

In the instant case, the threshold question is whether the Board is identical to the "State" as referred to in section 8(b) of the Court of Claims Act (Ill. Rev. Stat. 1977, ch. 37, par. 439.8(b)).

• 1 In Kane v. Board of Governors (1976), 43 Ill. App.3d 315, 356 N.E.2d 1340, the court held that the Board was an arm of the State and therefore could only be sued in the Court of ...


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