Appeal from the Circuit Court of Cook County; the Hon. Harold
A. Siegan, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
This appeal is from the dismissal of plaintiff's amended complaint against defendants James Edgar, Secretary of State (Secretary) and General Service Employees Union, Local 73, Service Employees International Union, AFL-CIO-CLC (Union) in an action for injunctive relief, an accounting, and damages. The sole issue on review is the propriety of that dismissal.
Plaintiff, formerly employed by the office of the Secretary *fn1 as a facility service representative in Du Page County, filed a three-count complaint on behalf of herself and all persons similarly situated, *fn2 alleging essentially that the 1978 and 1981 collective bargaining agreements between the Secretary and the Union, as labor representative of facility service personnel, were unconstitutional. Specifically, she alleged that the Secretary employs two classifications of facility service representatives — "Cook County" and "Downstate/Collar" (downstate) county employees and that, pursuant to the agreements at issue, downstate service personnel are paid at a lower rate than their Cook County counterparts.
In count I, which was directed against the Secretary, plaintiff alleged that the classifications and the corresponding wage differentials were arbitrary and discriminatory and constituted a denial of her constitutional right to due process and equal protection, and sought (a) to enjoin the Secretary from currently paying, or contracting in the future to pay, downstate service workers lower wages than those paid to Cook County service personnel; (b) an accounting of the salary differentials and the interest accrued thereon for 10 years preceding institution of this action; and (c) appointment of a trustee to administer and distribute the back wages to downstate employees. Plaintiff also alleged, in counts II and III, gross negligence and breach of fiduciary duty by the Union in negotiating and entering into these agreements and sought the same relief as requested in count I as well as both actual and punitive damages from the Union.
Both defendants moved to dismiss plaintiff's action. In his motion, the Secretary essentially maintained that although plaintiff's complaint was purportedly directed against him as an individual, in actuality it alleged a claim founded upon a contract for damages against him in his official capacity as an officer of the State, and it was thus within the exclusive jurisdiction of the Illinois Court of Claims. In support of its motion, the Union asserted, inter alia, that being a voluntary, unincorporated association, it was not amenable to a suit for damages; that the complaint failed to allege the existence or breach of a duty owed by it to plaintiff; and that she had failed to exhaust all internal administrative remedies available to her prior to filing this action, as is required by the Union's constitution and by-laws. The motions to dismiss were granted, and this appeal followed.
We first consider plaintiff's contention that dismissal of count I against the Secretary was improper. Initially, we note that although by section 4, article XIII, of the 1970 Illinois Constitution (Ill. Const. 1970, art. XIII, sec. 4) the doctrine of sovereign immunity was abolished, the legislature, acting under its constitutional authority, partially reinstated the doctrine by passing section 1 of "An Act in relation to immunity for the State of Illinois" (the immunity statute), which states that "[e]xcept as provided in `An Act to create the Court of Claims * * *,' the State of Illinois shall not be made a defendant or party in any court." Ill. Rev. Stat. 1981, ch. 127, par. 801.
Plaintiff asserts, however, that the immunity statute is inapplicable here, arguing in substance that (a) the action is not one against the State; (b) even if it were, the State waived immunity by entering into the disputed contracts; and (c) the Court of Claims lacks the power to grant the equitable relief sought herein.
• 1, 2 With regard to plaintiff's first assertion, it has repeatedly been held that in determining whether an action is a suit against the State and, therefore, one which must be brought in the Court of Claims, the circuit court is not bound by the formal identification of the parties, but rather, must analyze the issues involved and the nature of the relief sought (Hudgens v. Dean (1979), 75 Ill.2d 353, 388 N.E.2d 1242; Sass v. Kramer (1978), 72 Ill.2d 485, 381 N.E.2d 975); and while it is true that an action to restrain a State official from acting in contravention of the law or exceeding his authority thereunder is not considered to be against the State (Board of Trustees v. Illinois Community College Board (1978), 63 Ill. App.3d 969, 380 N.E.2d 988), it is well settled that where the action seeks to control the officer's conduct in governmental matters with respect to which he has been granted discretionary authority (Boards of Education v. Cronin (1977), 54 Ill. App.3d 584, 370 N.E.2d 19), and if a judgment for plaintiff could operate to control the actions of the State or subject it to liability, it will be deemed an action against the State even though it is not a named party therein (Local 3236 v. Illinois State Board of Education (1984), 121 Ill. App.3d 160, 459 N.E.2d 300; McGuire v. Board of Regents (1979), 71 Ill. App.3d 998, 390 N.E.2d 632).
Relying principally on Board of Education v. Cronin (1979), 69 Ill. App.3d 472, 388 N.E.2d 72, and Hoffman v. Yack (1978), 57 Ill. App.3d 744, 373 N.E.2d 486, plaintiff argues that this suit is not against the State, but against James Edgar as an individual and in his official capacity as Secretary of State to enjoin him from acting in excess of the authority delegated to him, and to compel him "to perform his duties within the law."
• 3 Preliminarily, we note that there is nothing in the record to suggest that in negotiating and contracting with the Union to establish the disputed schedule of wage rates, the Secretary was acting in other than his official capacity; indeed, the allegations in plaintiff's complaint, which contain numerous references to "defendant's employees," "defendant's office," and even to "defendant's predecessor," and which challenge the propriety of actions relating to his official duties, indicate that the action was directed against the Secretary as an officer of the State. See Hudgens v. Dean (1979), 75 Ill.2d 353, 388 N.E.2d 1242.
Secondly, in our view, plaintiff's reliance on the cases she cites as support for her position that this is not a suit against the State is misplaced. In Hoffman v. Yack (1978), 57 Ill. App.3d 744, 373 N.E.2d 486, plaintiff, a tenured instructor, filed a two-count complaint against the board of trustees of the university where he taught and the supervisor of his department thereat, alleging that the supervisor had engaged in a deliberate and malicious course of conduct designed to damage his relationship with the university administration and that the board breached its duty to accord him fair consideration with respect to increases in pay and promotions. Although the court affirmed the dismissal of plaintiff's action against the board, finding that "as framed by both the issues and the relief sought," i.e., money damages, it was a suit against the State over which the circuit court had no jurisdiction, the court reversed the order dismissing plaintiff's action against the supervisor, observing that the actions complained of — which included the propagation of false accusations concerning plaintiff's competency, morality, and integrity, as well as interference with student evaluations of him and interception of his mail — constituted wrongful conduct not within the scope of his duties as a supervisor, and that a judgment against defendant as an individual would neither affect the actions of the State nor subject it to liability. Inasmuch as the complaint before us contains no such allegations of tortious conduct and the relief sought would clearly affect the actions of the State and subject it to liability, we believe that the holding in Hoffman v. Yack is inapplicable here.
In Board of Education v. Cronin (1979), 69 Ill. App.3d 472, 388 N.E.2d 72, plaintiff school district brought an action against the State Superintendent of Education seeking to restrain him from withholding legislatively budgeted transportation funds from it. The Cronin court held that the Superintendent's conduct was in violation of a non-discretionary duty to disburse those funds as mandated by the School Code, and thereby concluded that the action was not against the State but against its agents to compel their compliance with the law. In the case at bar, we note that section 10a of the Merit Employment Code (Ill. Rev. Stat. 1981, ch. 124, par. 110a) authorizes the Secretary to appoint a director of personnel who is responsible for the preparation of a "fair and reasonable" compensation plan which "may include provisions for * * * area differentials" and which is subject to approval by the Secretary. Furthermore, although at the time the disputed contracts were negotiated, the Secretary — as a public employer — was empowered to enter into collective bargaining agreements with bargaining representatives selected by its employees (Tobin v. Health & Hospitals Governing Com. (1978), 66 Ill. App.3d 564, 384 N.E.2d 77), it could not be compelled to do so (Peters v. Health & Hospitals Governing Com. (1981), 88 Ill.2d 316, 430 N.E.2d 1128, cert. denied (1982), 459 U.S. 826, 74 L.Ed.2d 63, 103 S.Ct. 60). *fn3 Thus, unlike Cronin, in which plaintiff sought to compel compliance with a non-discretionary, statutorily mandated duty, the claim in this case arises from a contract which the Secretary was under no legal duty to negotiate and which concerned wage matters within the discretionary authority conferred upon him by the legislature. Section 8(b) of the Court of Claims Act provides that the Illinois Court of Claims "shall have exclusive jurisdiction to hear and determine * * * all claims against the state founded upon any contract entered into with the State of Illinois." Ill. Rev. Stat. 1981, ch. 37, par. 439.8(b).
We turn then to plaintiff's argument that even if we find this action to be one against the State, as we have, the State — through the Secretary — has waived immunity by entering into the contracts at issue. In response to an analogous argument made in a breach of contract action against the State, the supreme court in S.J. Groves & ...