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01/31/97 DR. ULRICH KLOPFER v. COURT CLAIMS

January 31, 1997

DR. ULRICH KLOPFER, PLAINTIFF-APPELLANT,
v.
COURT OF CLAIMS, STATE OF ILLINOIS; AND ROGER A. SOMMER, CHIEF JUSTICE OF THE COURT OF CLAIMS, LEO F. POCH, JUDGE, RANDY PATCHETT, JUDGE, RICHARD T. MITCHELL, JUDGE, NORMA JANN, JUDGE, ANNE BURKE, JUDGE, NAMED AS NOMINAL PARTIES, DEFENDANTS-APPELLEES, AND THE ILLINOIS DEPARTMENT OF PUBLIC AID, DEFENDANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE DOROTHY KINNAIRD, JUDGE PRESIDING.

Rehearing Denied March 6, 1997. Released for Publication March 13, 1997.

The Honorable Justice Hoffman delivered the opinion of the court. Hartman, P.j., and South, J., concur.

The opinion of the court was delivered by: Hoffman

JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiff, Dr. Ulrich Klopfer, filed a petition for a writ of certiorari in the circuit court of Cook County seeking review of a decision of the Illinois Court of Claims (Court of Claims). The circuit court dismissed the petition and the plaintiff filed the instant appeal. We affirm.

The plaintiff filed a complaint in the Court of Claims on January 16, 1981, against the Illinois Department of Public Aid (Department), seeking payment for 931 abortions that he performed on public aid recipients between June 1978 and February 1979. An evidentiary hearing was held before a commissioner of the Court of Claims commencing August 1, 1983, and concluding with the closing of proofs on January 5, 1984. Thereafter, the parties submitted written briefs to the Court of Claims in support of their respective positions.

The Court of Claims issued an opinion on August 1, 1990, denying the plaintiff's claim based, in part, upon its finding that his claim was untimely. On August 13, 1990, the plaintiff filed a petition for rehearing contending, inter alia, that the statutory limitations period had been waived because of the Department's failure to raise the issue by means of an affirmative defense or a written motion, and that he had been denied a fair opportunity to address the question. The Court of Claims denied the petition in an opinion dated September 29, 1993, holding, in relevant part, that the limitations issue had been sufficiently raised during the proceedings, and, since compliance with the applicable limitation is jurisdictional, the Court of Claims could dismiss the plaintiff's untimely claim on its own motion.

The plaintiff filed a petition for a writ of certiorari in the circuit court against the Court of Claims, its judges, and the Department, claiming:

"That the Court of Claims and judges thereof, in direct violation of United States Constitutional Law, Illinois Constitutional Law, Illinois Statutory Law, and Common Law, suspended and refused to follow Constitutionally required Procedural Due Process in the Proceedings of [the] Court of Claims regarding the Plaintiff's case; denying the Plaintiff property without Due Process of Law; denying the Plaintiff a fundamentally fair trial; and denying the Plaintiff Procedural Due Process required by the Illinois Constitution, Illinois Statutory Law, and Rules of Procedure of the Court of Claims."

The Department filed a special appearance pursuant to section 2-301 of the Code of Civil Procedure (Code) (735 ILCS 5/2-301 (West 1994)), contending that it 1) had not been properly served with summons, and 2) was not a proper party defendant in any action brought in the circuit court (see Smith v. Jones, 113 Ill. 2d 126, 497 N.E.2d 738, 100 Ill. Dec. 560 (1986)). The trial court dismissed the Department from the action, an order which the plaintiff has not appealed. The Court of Claims and its judges moved for dismissal pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 1994)), arguing that the Court of Claims correctly dismissed the plaintiff's claim on jurisdictional grounds. The circuit court granted the defendants' section 2-619 motion, and it is from that order that the plaintiff has appealed.

We must commence our analysis with an acknowledgement that decisions of the Court of Claims are generally not subject to judicial review. A narrow exception to this rule exists in circumstances where the Court of Claims acts in a manner which deprives a party of the constitutional right to due process. Hyde Park Medical Laboratory, Inc. v. Court of Claims, 259 Ill. App. 3d 889, 632 N.E.2d 307, 198 Ill. Dec. 248 (1994). Because no other mode of appeal or review of the actions of the Court of Claims has been provided by statute, a common law writ of certiorari may be available to compel the Court of Claims to afford a party an opportunity to be heard at a meaningful time and in a meaningful manner. Rossetti Contracting Co. v. Court of Claims, 109 Ill. 2d 72, 485 N.E.2d 332, 92 Ill. Dec. 521 (1985). Such a writ is not available, however, to review the correctness of any decision of the Court of Claims based upon the merits of the case before it. Rossetti, 109 Ill. 2d at 80. Consequently, we will consider only those issues raised by the plaintiff which address the due process afforded him before the Court of Claims and the propriety of the trial court having disposed of this action pursuant to a section 2-619 motion. For jurisdictional reasons, we must decline to consider any issue raised by the plaintiff going to the correctness of the factual findings of the Court of Claims which underlie its decision to dismiss the plaintiff's claim against the Department.

The plaintiff argues in his brief before this court, as he did before the circuit court, that in addressing the limitations issue without the question ever having been raised in any written motion or affirmative defense filed by the Department, the Court of Claims violated the Code and its own rules of procedure; and, in so doing, denied him both substantive and procedural due process. We believe, however, that the plaintiff's contentions in this regard exhibit a misunderstanding of the subject matter jurisdiction conferred upon the Court of Claims by statute and, more fundamentally, the distinction between general statutes of limitation and statutes which both confer jurisdiction and fix the time within which such jurisdiction may be exercised.

The plaintiff's underlying claim against the Department was predicated upon his alleged performance of medical procedures upon authorized Medicaid recipients which, according to the plaintiff's complaint before the Court of Claims, were rendered as a provider of medical services under the Department's rules and regulations. Consequently, there is no dispute that the claim fell within the exclusive jurisdiction of the Court of Claims.

Although Article XIII, Section 4 of the Illinois Constitution of 1970 abolished sovereign immunity, the General Assembly was empowered to restore it. Ill. Const. 1970, art. XIII, sec. 4. In 1971, acting pursuant to that constitutional grant of authority, the legislature enacted the State Lawsuit Immunity Act which states that, "except as provided in 'AN ACT to create the Court of Claims ***', the State shall not be made a defendant or party in any court." Ill. Rev Stat. 1971, ch. 127, par. 801. The Court of Claims Act (Act) (Ill. Rev. Stat. 1977, ch. 37, par. 439.1 et seq.) provides that the Court of Claims "shall have exclusive jurisdiction to hear and determine *** all claims against the State founded upon any law of the State of Illinois, or upon any regulation thereunder by an executive or administrative officer or ...


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