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05/17/89 Allan H. Schoeberlein, v. Purdue University Et Al.

May 17, 1989

ALLAN H. SCHOEBERLEIN, APPELLEE

v.

PURDUE UNIVERSITY ET AL., APPELLANTS



SUPREME COURT OF ILLINOIS

544 N.E.2d 283, 129 Ill. 2d 372, 135 Ill. Dec. 787 1989.IL.741

Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Kane County, the Hon. James F. Quetsch, Judge, presiding.

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court. JUSTICE CALVO, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

In October 1986, appellee Allan Schoeberlein (Schoeberlein), an Illinois resident, filed a products liability suit in the circuit court of Kane County. Schoeberlein alleged that appellants Purdue University and the Board of Trustees of Purdue University (Purdue) sold a defective Central Hadron Calorimeter to Fermi National Accelerator Laboratory in Batavia, Illinois. Schoeberlein's complaint further stated that this product fell upon and injured him during its installation. Purdue responded to this complaint by seeking removal to the United States District Court for the Northern District of Illinois. Although removal was granted, Schoeberlein filed a motion to remand and, by agreed order, the district court remanded the case back to the Kane County circuit court.

After remand, Purdue entered a special and limited appearance (see Ill. Rev. Stat. 1987, ch. 110, par. 2-301), and filed a motion to dismiss under section 2-619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-619). In its motion, Purdue contended that it was an instrumentality of the State of Indiana and, therefore, immune to suit in Illinois by virtue of the eleventh amendment (U.S. Const., amend. XI) and the full faith and credit clause (U.S. Const., art. IV, 1). Purdue also claimed immunity under the principle of comity, arguing that the Illinois trial court defer to an Indiana statute which provides that the State of Indiana is immune to suit outside its own courts.

The trial court granted Purdue's motion to dismiss. The appellate court for the second district, with one Justice Dissenting, reversed. (167 Ill. App. 3d 734.) We granted Purdue's petition for leave to appeal as a matter of right under our Rule 317 (107 Ill. 2d R. 317). We reverse the appellate court and affirm the trial court's dismissal of the suit.

Both parties agree that Purdue is an instrumentality of the State of Indiana. (See also Kashani v. Purdue University (7th Cir. 1987), 813 F.2d 843.) Consequently, the sole issue on appeal is whether Purdue, as an arm of the State of Indiana, is immune from this suit brought in Illinois.

Purdue raises three grounds upon which its claim of immunity may rest: the eleventh amendment (U.S. Const., amend. XI), the full faith and credit clause (U.S. Const., art. IV, § 1), and the principle of comity. Purdue urges that we recognize the immunity granted it by the Indiana Code of Civil Procedure, which states:

"Nothing contained in this chapter shall be construed as a waiver of the eleventh amendment to the Constitution of the United States, as consent by the State of Indiana or its employees to be sued in any federal court or as consent to be sued in any state court beyond the boundaries of the state of Indiana." Ind. Code Ann. § 34 -- 4 -- 16.5 -- 5(d) (West 1987).

The seminal Supreme Court decision that addressed the issue of State sovereign immunity asserted on the basis of the eleventh amendment, full faith and credit, and comity was Nevada v. Hall (1979), 440 U.S. 410, 59 L. Ed. 2d 416, 99 S. Ct. 1182. The Hall Court first held that the eleventh amendment does not prohibit a State from being sued in another State's courts; it only prohibits such suits in Federal court. (Hall, 440 U.S. at 420-21, 59 L. Ed. 2d at 425, 99 S. Ct. at 1188.) Second, the Hall Court found that the full faith and credit clause does not require the forum State to apply another State's law concerning sovereign immunity if it would contravene the forum State's own legitimate public policy. (Hall, 440 U.S. at 422, 59 L. Ed. 2d at 426, 99 S. Ct. at 1189.) Finally, the Hall Court stated that although a State may recognize another State's sovereign immunity based on comity, it is not constitutionally mandated. Hall, 440 U.S. at 426, 59 L. Ed. 2d at 428, 99 S. Ct. at 1191.

Recognition of a foreign State's law based on comity is not a constitutional command, but rather a common law doctrine. Moreover, we are not restricted by the Constitution in employing this doctrine in the area of State sovereign immunity. (See Hall, 440 U.S. at 426, 59 L. Ed. 2d at 429, 99 S. Ct. at 1191.) We have held that constitutional questions will not be considered if the case can be decided on other grounds. (In re Application of Rosewell (1983), 97 Ill. 2d 434, 440; In re Estate of Ersch (1963), 29 Ill. 2d 572, 576-77.) Therefore, we decline to address the eleventh amendment or full faith and credit concerns raised by Purdue, because we find that we can resolve the issue before us on the common law principle of comity.

Judicial comity is defined as "[t]he principle in accordance with which the courts of one state or jurisdiction will give effect to the laws and judicial decisions of another, not as a matter of obligation, but out of deference and respect." (Black's Law Dictionary 334 (4th ed. 1951).) Comity may be granted to another State's law, or to the law of a foreign nation. The intimate nature of the States' relationships with one another leads to a greater degree of comity toward each other than a State may give a foreign nation's law. (16 Am. Jur. 2d Conflict of Laws § 10 (1979).) Interstate comity is viewed more favorably because the purpose of comity is to foster cooperation, promote harmony, and build goodwill (Lee v. Miller County (5th Cir. 1986), 800 F.2d 1372, 1375), and to encourage amiable and respectful relations among individual States (16 Am. Jur. 2d Conflict of Laws § 9 (1979)). In discussing comity in the context of State sovereign immunity, the Supreme Court said: ...


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