APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. CURRY, Judge, presiding.
PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 15, 1982.
Plaintiff Robert Lott filed suit in the circuit court of Cook County, charging defendants with employment discrimination. Defendants in the suit are the Board of Governors of State Colleges and Universities (BOG), Governors State University (GSU), and William Engbretson, former president of GSU. Plaintiff's action, brought under section 89-102(B) of the Illinois Human Rights Act (IHRA), seeks reinstatement, compensatory and punitive damages and injunctive relief. The trial court dismissed plaintiff's action on jurisdictional grounds, finding that plaintiff's lawsuit demands monetary relief from the State and is therefore cognizable only in the Illinois Court of Claims. Plaintiff appeals.
At the time the instant appeal was filed, the principal issue was this: is a suit against the State under section 9-102(B) of the IHRA subject to the general rule that monetary claims against the State must be filed in the Court of Claims? We now find that this issue has become moot, in light of a recent decision by the Illinois Supreme Court. In Wilson v. All-Steel, Inc. (1981), 87 Ill.2d 28, 428 N.E.2d 489, the court found section 9-102(B) of the IHRA to be unconstitutional special legislation. Plaintiff's action is founded solely on section 9-102(B). The Wilson decision would appear to sound the death knell of plaintiff's cause of action, but a more recent decision by the United States Supreme Court makes it clear that plaintiff's remedy may not be so casually dispatched. That decision is Logan v. Zimmerman Brush Co. (1982), ___ U.S. ___, 71 L.Ed.2d 265, 102 S.Ct. 1148. Before addressing the impact of Wilson and Logan, we will recount the facts.
In 1974, plaintiff was hired by GSU as the university's Director of Student Services. Plaintiff, who is black, later became active in the Minority Caucus, an organization of GSU employees concerned with minority rights. Plaintiff was not offered a contract for the position of Director of Student Services for the 1976-77 school year. Instead, he was offered a "terminal" contract for that year at a lower salary. Plaintiff charges in his complaint that his demotion and ultimate termination were in retaliation for his activities in the Minority Caucus.
Following his termination at the end of the 1976-77 school year, plaintiff filed a charge of discrimination with the Illinois Fair Employment Practices Commission (the Commission). By the terms of the Fair Employment Practices Act then in force, the Commission was required to issue a complaint or, alternatively, an order that no complaint issue, within 180 days of plaintiff's charge. (See Ill. Rev. Stat. 1977, ch. 48, par. 858.01(a); see also Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1978), 71 Ill.2d 61, 68, 373 N.E.2d 1307 (holding that the language of the statute is mandatory and the Commission must act within 180 days).) The Commission did not act on plaintiff's complaint within 180 days.
In 1978, the legislature added section 8.01a to the Fair Employment Practices Act (FEPA) (Ill. Rev. Stat. 1979, ch. 48, par. 858.01a). That section provided a remedy for certain individuals whose discrimination charges were not acted upon by the Commission within the 180-day time limit. Section 8.01a states in part:
"In the case of any charge of an unfair employment practice which has been properly filed with the Commission prior to March 30, 1978, which has not been settled or adjusted by conference and conciliation under Section 8, and which within 180 days thereafter has not been the subject of a complaint issued by the Commission or an order that no complaint be issued, the person filing the charge may seek appropriate injunctive or other relief by filing an action in the circuit court of the county where the alleged unfair employment practice occurred." (Ill. Rev. Stat. 1979, ch. 48, par. 858.01a.)
In 1979, the legislature passed the Illinois Human Rights Act (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1-101 et seq.), which replaced the Fair Employment Practices Act. Section 9-102(B) of the IHRA is essentially a re-enactment of section 8.01a of the FEPA, providing a remedy for individuals whose FEPA charges were not disposed of within the statutory period.
Plaintiff's complaint, filed on September 26, 1980, purports to state a cause of action under section 9-102(B) of the IHRA. On November 13, 1981, our supreme court filed its opinion in Wilson v. All-Steel, Inc., finding section 9-102(B) of the IHRA unconstitutional special legislation. 87 Ill.2d 28, 33.
• 1 Defendants did not argue the constitutionality of section 9-102(B) in the trial court. There is no doubt, however, that the Wilson case is applicable. We further find that no waiver occurred in defendants' failure to so argue. The case of Quitman v. Chicago Transit Authority (1952), 348 Ill. App. 481, 109 N.E.2d 373, is on point. There, the defendant won a dismissal of the plaintiff's complaint by relying on a statutory defense. While the plaintiff's appeal was pending in this court, the Illinois Supreme Court, in an unrelated case, found the statute unconstitutional. The defendant in Quitman argued that the plaintiff, who had not questioned the constitutionality of the statute in the trial court, was precluded from raising that claim on appeal. The appellate court held:
"Once a statute is declared unconstitutional it is void ab initio. No rights can be predicated upon it, nor can it afford any protection. It is as if it had never been written. It is our duty to recognize and follow the decisions of the Supreme Court." (348 Ill. App. 481, 483.)
Following the supreme court's decision in Wilson, we recognize that section 9-102(B) is void and that no rights can be predicated upon it.
This finding, however, does not dispose of plaintiff's claim. In Logan v. Zimmerman Brush Co. (1982), ___ U.S. ___, 71 L.Ed.2d 265, 102 S.Ct. 1148, the plaintiff (Logan) filed an employment discrimination charge with the Illinois Fair Employment Practices Commission. Section 8(b) of the FEPA required the Commission to convene a fact-finding conference within 120 days of Logan's charge. (See Ill. Rev. Stat. 1979, ch. 48, par. 858(b).) The Commission did not convene the fact-finding conference within the specified period. The Illinois Supreme Court, acting on Logan's employer's petition for a writ of prohibition, held that the 120-day period was mandatory and that the Commission therefore lacked jurisdiction to adjudicate Logan's complaint. (See Zimmerman Brush Co. v. Fair Employment Practices Com. (1980), 82 Ill.2d 99, 104, 107, 411 N.E.2d 277.) In ...