NOTICE 2017 IL App (5th) 160274 Decision filed 08/09/17. The text of this decision may be NO. 5-16-0274 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
QIANG CHENG and JALE TEZCAN, ) Appeal from the ) Circuit Court of Plaintiffs-Appellees, ) Jackson County. ) v. ) No. 15-MR-52 ) SUSAN M. FORD, ) Honorable ) Ralph R. Bloodworth III, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________
JUSTICE WELCH delivered the judgment of the court, with opinion. Justices Cates and Overstreet concurred in the judgment and opinion.
OPINION
¶1 The plaintiffs, Drs. Qiang Cheng and Jale Tezcan, associate professors at Southern
Illinois University Carbondale (SIUC), brought this complaint in the circuit court of
Jackson County, seeking, inter alia, money damages for alleged tortious interference by
defendant Dr. Susan M. Ford, SIUC’s interim provost and vice chancellor of academic
affairs. Dr. Ford filed a motion to dismiss the claim against her under section 2-619 of the
Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2016)), arguing that, under the
State Lawsuit Immunity Act (745 ILCS 5/0.01 et seq. (West 2016)), she is a State
employee immune from suit in circuit court and that, under the Court of Claims Act (705
1 ILCS 505/1 et seq. (West 2016)), the Court of Claims has exclusive jurisdiction over the
plaintiffs’ tort claim seeking money damages. The circuit court disagreed and denied Dr.
Ford’s motion to dismiss but granted her motion to certify questions for interlocutory
appeal. The court found “that the issues of whether Dr. Ford is entitled to sovereign
immunity from Plaintiffs[’] tort claim seeking money damages filed in Circuit Court
pursuant to the Illinois State Lawsuit Immunity Act, when Plaintiffs have alleged that Dr.
Ford acted in excess of the express language of the University Policy and that such
conduct injured Plaintiffs, and whether such claim must be filed, if at all, in the Illinois
Court of Claims pursuant to the Illinois Court of Claims Act, are questions of law as to
which there are substantial grounds for difference of opinion, and an interlocutory appeal
to the Appellate Court would materially advance the ultimate termination of the
litigation.”
¶2 Dr. Ford filed a timely application for leave to appeal in this court, which was
initially denied. She then filed a timely petition for leave to appeal to the Illinois Supreme
Court, which denied her petition for leave to appeal but entered a supervisory order
directing this court to address the circuit court’s certified questions. This court then
granted Dr. Ford’s application for leave to appeal.
¶3 For the reasons that follow, we answer the certified questions in the affirmative,
i.e., under the State Lawsuit Immunity Act, Dr. Ford is entitled to sovereign immunity
from the plaintiffs’ tort claim seeking money damages in circuit court, and the Court of
Claims has exclusive jurisdiction over such claims under the Court of Claims Act.
2 ¶4 BACKGROUND
¶5 As SIUC’s interim provost and vice chancellor of academic affairs, Dr. Ford is an
employee of the State of Illinois. As faculty members at SIUC, Drs. Cheng and Tezcan
are also employees of the State of Illinois.
¶6 This case arises out of a graduate student’s claims that she submitted scholarly
work to Drs. Cheng and Tezcan for publication and that they did not give her appropriate
authorship credit for her work. The student submitted a complaint to SIUC officials under
SIUC’s Academic and Research Integrity and Misconduct: Policy and Procedure
(Research Misconduct Policy).
¶7 After the student submitted her complaint, Dr. Ford conducted an initial
assessment (phase 1) as required by the Research Misconduct Policy and referred the
complaint to a faculty inquiry team (phase 2). After gathering information, meeting with
the student, and meeting with Drs. Cheng and Tezcan, the inquiry team recommended
that the process proceed to an investigation (phase 3). Although the inquiry team stated
that it was “unsure whether the complaint qualifies as research misconduct,” it found that
“further investigation [was] warranted since [Drs. Cheng and Tezcan] were not
professional in their dealing with the *** student.” As a result of the inquiry team’s
recommendation, Dr. Ford appointed an investigation panel comprised of faculty
members to conduct the investigation in accordance with the Research Misconduct
Policy. Drs. Cheng and Tezcan were notified of this action on April 1, 2015.
¶8 On April 22, 2015, Drs. Cheng and Tezcan, through their faculty association, filed
a grievance, seeking to halt the research misconduct process. On April 24, 2015, Dr. 3 Tezcan also appealed Dr. Ford’s decision to initiate an investigation, again seeking to halt
the research misconduct process. Shortly thereafter, the research misconduct process was
halted to allow resolution of the grievance and appeal.
¶9 On May 6, 2015, Drs. Cheng and Tezcan filed a complaint and request for
preliminary injunction in the circuit court against Dr. Ford and the Board of Trustees of
SIUC. They alleged a due process violation under section 1983 of the federal Civil Rights
Act (42 U.S.C. § 1983 (2012)) and sought to enjoin the defendants from conducting an
investigation into the research misconduct charge.
¶ 10 On May 8, 2015, the defendants removed the action to federal court based on
federal question jurisdiction. On June 17, 2015, the federal court held an evidentiary
hearing. On July 6, 2015, the federal court dismissed the plaintiffs’ due process claim
under § 1983 with leave to refile a cognizable claim in State court, finding that the
federal court lacked subject matter jurisdiction because the plaintiffs failed to identify a
recognized liberty or property interest. On July 7, 2015, both the plaintiffs and the
defendants moved to amend/correct the federal court’s order. Both motions were denied.
¶ 11 On July 21, 2015, the plaintiffs filed a “motion to reopen” their case in the circuit
court, seeking leave to file an amended complaint. On July 22, 2015, the circuit court
granted the plaintiffs’ motion, and the plaintiffs filed an amended complaint. The
amended complaint sought only equitable relief and included identical factual allegations
as the initial complaint that had been dismissed by the federal court.
¶ 12 On September 3, 2015, the defendants filed a combined motion to dismiss the
plaintiffs’ amended complaint under sections 2-615 and 2-619 of the Code (735 ILCS 4 5/2-615, 2-619 (West 2016)). On December 11, 2015, the circuit court denied the
defendants’ section 2-619 motion to dismiss but granted their section 2-615 motion to
dismiss and gave the plaintiffs leave to amend.
¶ 13 On December 31, 2015, the plaintiffs filed a second amended complaint. In count I
of the second amended complaint, which is not the subject of this appeal, the plaintiffs
asserted a declaratory judgment claim against the Board of Trustees of SIUC for violation
of their due process rights under the Research Misconduct Policy.
¶ 14 In count II of the second amended complaint, the plaintiffs asserted, for the first
time, a tort claim against Dr. Ford seeking money damages. The plaintiffs claimed that,
by refusing to conclude the research misconduct process despite her alleged mandate to
do so under the Research Misconduct Policy, Dr. Ford tortiously interfered with their
contractual obligation and their prospective economic advantage.
¶ 15 On February 2, 2016, the defendants filed a combined section 2-615 and 2-619
motion to dismiss the plaintiffs’ second amended complaint. In the motion, Dr. Ford
argued, inter alia, that the plaintiffs’ tort claim against her should be dismissed under
section 2-619 because she is a State employee immune from suit in court pursuant to the
State Lawsuit Immunity Act (745 ILCS 5/0.01 et seq. (West 2016)) and that the Court of
Claims has exclusive jurisdiction over the plaintiffs’ tort claim under the Court of Claims
Act (705 ILCS 505/1 et seq. (West 2016)). In her memorandum of law in support of her
motion to dismiss, Dr. Ford noted that the plaintiffs’ complaint explicitly stated that her
alleged tortious conduct related solely to how she administered the Research Misconduct
Policy. On April 4, 2016, the circuit court denied the defendants’ motion to dismiss. 5 ¶ 16 Meanwhile, the research misconduct process had resumed. On April 5, 2016, the
investigation panel found no/insufficient evidence to substantiate allegations of research
misconduct against Drs. Tezcan and Cheng.
¶ 17 On May 4, 2016, Dr. Ford filed a motion to certify questions for an interlocutory
appeal. On June 2, 2016, the circuit court granted the motion, finding “that the issues of
whether Dr. Ford is entitled to sovereign immunity from Plaintiffs[’] tort claim seeking
money damages filed in Circuit Court pursuant to the Illinois State Lawsuit Immunity
Act, when Plaintiffs have alleged that Dr. Ford acted in excess of the express language of
the University Policy and that such conduct injured Plaintiffs, and whether such claim
must be filed, if at all, in the Illinois Court of Claims pursuant to the Illinois Court of
Claims Act, are questions of law as to which there are substantial grounds for difference
of opinion, and an interlocutory appeal to the Appellate Court would materially advance
the ultimate termination of the litigation.”
¶ 18 Dr. Ford filed a timely application for leave to appeal in this court, which was
initially denied. She then filed a timely petition for leave to appeal to the Illinois Supreme
Court, which denied her petition for leave to appeal but entered a supervisory order,
directing this court to address the circuit court’s certified questions. This court then
¶ 19 ANALYSIS
¶ 20 The standards governing this appeal are familiar. A motion to dismiss under
section 2-619 of the Code admits the legal sufficiency of the complaint but asserts
affirmative matter that defeats the claim. Leetaru v. Board of Trustees of the University of 6 Illinois, 2015 IL 117485, ¶ 40. One of those affirmative matters is that the circuit court
lacks subject matter jurisdiction. 735 ILCS 5/2-619(a)(1) (West 2016). That is the basis
of Dr. Ford’s motion filed in this case.
¶ 21 Dr. Ford argues that the plaintiffs filed their tort claim for money damages in the
wrong tribunal. She contends that the Court of Claims is the only tribunal authorized by
law to consider the plaintiffs’ claim against her. The circuit court disagreed and denied
her motion to dismiss.
¶ 22 As this appeal involves the question of whether the circuit court lacks jurisdiction
over the plaintiffs’ tort claim for money damages against Dr. Ford, the standard of review
is de novo. See In re Luis R., 239 Ill. 2d 295, 299 (2010) (“The absence or presence of
jurisdiction is a purely legal question, and our review therefore is de novo.”).
¶ 23 Dr. Ford’s jurisdictional challenge is based on principles of sovereign immunity.
“The doctrine of sovereign immunity was abolished in Illinois by the 1970 Constitution
‘[e]xcept as the General Assembly may provide by law.’ ” Leetaru, 2015 IL 117485, ¶ 42
(quoting Ill. Const. 1970, art. XIII, § 4). As it was authorized to do under this provision,
the General Assembly reinstated the doctrine of sovereign immunity by enacting the State
Lawsuit Immunity Act (745 ILCS 5/0.01 et seq. (West 2016)). Leetaru, 2015 IL 117485,
¶ 42. Section 1 of the State Lawsuit Immunity Act states that, except as provided in the
Court of Claims Act (705 ILCS 505/1 et seq. (West 2016)) and several other named
statutes, “the State of Illinois shall not be made a defendant or party in any court.” 745
ILCS 5/1 (West 2016). Section 8 of the Court of Claims Act, in turn, states that the Court
of Claims shall have exclusive jurisdiction over nine enumerated matters, including “[a]ll 7 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.” 705 ILCS 505/8(d)
(West 2016).
¶ 24 This language is clear and unambiguous; all claims against the State for tort
damages must be filed in the Court of Claims, and no other tribunal has jurisdiction over
such a claim. Fritz v. Johnston, 209 Ill. 2d 302, 310 (2004). The issue is, thus, whether
the claim set out in count II of the plaintiffs’ second amended complaint involves a claim
against the State.
¶ 25 In count II, the plaintiffs did not purport to assert a claim against the State. Rather,
they named as a defendant Dr. Ford, a State employee. Dr. Ford contends, however, that
the exclusive jurisdiction provision of the Court of Claims Act should nevertheless apply
because count II is tantamount to an action against the State itself.
¶ 26 Dr. Ford is correct that the formal designation of the parties is not dispositive for
purposes of the Court of Claims Act. Leetaru, 2015 IL 117485, ¶ 44. In determining
whether sovereign immunity applies in a given case, substance takes precedence over
form. Id. That an action is nominally one against an individual State employee does not
mean that it will not be considered as one against the State itself. Id.
¶ 27 The determination of whether an action is, in fact, one against the State and, thus,
one that must be brought in the Court of Claims depends on the “issues involved” and
“the relief sought.” Id. ¶ 45.
¶ 28 When the “issue involved” is a State employee’s alleged tortious conduct, the
reviewing court must determine the “source of the duty” the State employee is charged 8 with breaching. Loman v. Freeman, 229 Ill. 2d 104, 112-13 (2008). Under the “source of
the duty” test articulated by our supreme court, when the claim involves the breach of a
duty imposed on the State employee solely by virtue of his or her State employment, the
Court of Claims has exclusive jurisdiction. Id. at 113. However, when the duty the State
employee is charged with breaching is imposed independently of his or her State
employment, the claim may be heard in circuit court. Id.
¶ 29 As to the “relief sought,” an action naming a State employee as a defendant will be
found to be a claim against the State where a judgment in favor of the plaintiffs could
operate to control the actions of the State or subject it to liability. Id.
¶ 30 Under the “source of the duty” test, we must determine whether the duty Dr. Ford
is charged with breaching was imposed on her solely by virtue of her State employment.
If so, then she may only be sued in tort for money damages in the Court of Claims.
¶ 31 The plaintiffs acknowledge that Dr. Ford was authorized to administer the
Research Misconduct Policy as part of her official duties and that, under the Research
Misconduct Policy, she was authorized to appoint an inquiry team to inquire into the
student’s research misconduct claim. They also acknowledge that the inquiry team
recommended that Dr. Ford proceed to the investigation phase.
¶ 32 The crux of the plaintiffs’ claim against Dr. Ford is that, because the inquiry team
“did not identify any possible Research Misconduct as defined within the Policy,” Dr.
Ford was required under the Research Misconduct Policy to conclude the research
misconduct process and not proceed to the investigation phase, even though the inquiry
team recommended that she proceed to the investigation phase. The plaintiffs’ claim 9 hinges upon their interpretation of the phrase in the Research Misconduct Policy “[i]f an
allegation is found to be unsupported” by the inquiry team and their assertion that the
inquiry team found “an allegation *** to be unsupported.” However, by stating that it
was “unsure whether the complaint qualifies as research misconduct,” the inquiry team
did not find the research misconduct allegation to be unsupported.
¶ 33 In any event, the plaintiffs’ tort claim for money damages against Dr. Ford is one
that may be brought only in the Court of Claims because Dr. Ford was discharging duties
that arose solely by virtue of her State employment. Because she was a State employee,
and only because she was a State employee, she was responsible for administering the
Research Misconduct Policy. The alleged “breach” of that duty, according to the
plaintiffs, occurred when Dr. Ford decided to move the process from the inquiry phase to
the investigation phase after the inquiry team recommended that she do so. Dr. Ford
owed no duty to the plaintiffs independent of her role as interim provost. Moreover, it is
undisputed that Dr. Ford had the authority to determine whether the research misconduct
process should proceed from the inquiry phase to the investigation phase.
¶ 34 The plaintiffs nonetheless repeatedly asserted in their second amended complaint
that Dr. Ford “exceeded her authority” by not concluding the research misconduct
process. These conclusory allegations are simply a statement of the plaintiffs’ opinion
that Dr. Ford was required to terminate the research misconduct process, even though the
inquiry team recommended that the process continue to the investigation phase. Even
assuming that Dr. Ford acted erroneously, that she misinterpreted the Research
Misconduct Policy, or that she could or should have rejected the inquiry team’s 10 recommendation to proceed to the investigation phase, an erroneous judgment or action
by Dr. Ford does not change the fact that she acted solely as a State employee in deciding
to move forward with the process. The “source of the duty” she owed to the plaintiffs
was, thus, derived solely from the Research Misconduct Policy, which empowered her to
administer the research misconduct process. Because Dr. Ford’s decision to move the
process from the inquiry phase to the investigation phase fell squarely within her duties
as a State employee, duties she has only because she is the interim provost, under the
“source of the duty” test, the plaintiffs’ tort claim for money damages against her may not
be brought in circuit court.
¶ 35 Moreover, under the “control” test, even if the source of the duty owed by Dr.
Ford arose independently from State employment, the Court of Claims would still have
exclusive jurisdiction over the plaintiffs’ tort claim seeking money damages against her
because the claim seeks relief that “could operate to control the actions of the State or
subject it to liability.” See Loman, 229 Ill. 2d at 113.
¶ 36 The plaintiffs’ claim against Dr. Ford is based on the theory that she failed to
correctly apply the Research Misconduct Policy, which she had the authority to interpret
and administer. Whether she applied the Research Misconduct Policy correctly or
incorrectly is not relevant to the jurisdictional issues raised in this appeal. Instead, the
focus of our inquiry is whether a judgment in the circuit court for money damages “could
control” the actions of Dr. Ford, acting on behalf of the State. If we were to find that the
circuit court has jurisdiction to hear the plaintiffs’ tort claim for money damages against
Dr. Ford, the resolution of the plaintiffs’ claim would necessarily dictate what decision 11 Dr. Ford should have made (according to a jury) regarding whether she should have
accepted the inquiry team’s recommendation to proceed to the investigation phase. A
judgment for money damages against Dr. Ford could control the way she administers the
Research Misconduct Policy, a task that was delegated to her in her official role as
interim provost.
¶ 37 Under both the “source of the duty” test and the “control” test, the plaintiffs’ tort
claim against Dr. Ford for money damages may not be brought in circuit court. Under the
State Lawsuit Immunity Act and the Court of Claims Act, and under a long line of
Illinois Supreme Court precedent, the circuit court lacks jurisdiction over the plaintiffs’
tort claim for money damages against Dr. Ford.
¶ 38 CONCLUSION
¶ 39 For the foregoing reasons, the certified questions are answered in the affirmative,
and the cause is remanded for further proceedings consistent with this decision.
¶ 40 Certified questions answered; cause remanded.
12 2017 IL App (5th) 160274
NO. 5-16-0274
IN THE
FIFTH DISTRICT
QIANG CHENG and JALE TEZCAN, ) Appeal from the ) Circuit Court of Plaintiffs-Appellees, ) Jackson County. ) v. ) No. 15-MR-52 ) SUSAN M. FORD, ) Honorable ) Ralph R. Bloodworth III, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________
Opinion Filed: August 9, 2017 ________________________________________________________________________
Justices: Honorable Thomas M. Welch, J.
Honorable Judy L. Cates, J., and Honorable David K. Overstreet, J., Concur ________________________________________________________________________
Attorneys Ian P. Cooper, Mollie G. Mohan, Jenna M. Lakamp, Tueth for Keeney Cooper Mohan & Jackstadt, P.C., 34 North Meramec Appellant Avenue, Suite 600, St. Louis, Missouri 63105 ________________________________________________________________________
Attorneys Shari R. Rhode, Martin D. Parsons, Rhode & Jackson, P.C., for 1405 West Main Street, P.O. Box 99, Carbondale, IL 62903 Appellees ________________________________________________________________________