Cheng v. Ford , 2017 IL App (5th) 160274 ( 2017 )

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Appellate Court Date: 2017.10.16
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Cheng v. Ford, 2017 IL App (5th) 160274Appellate Court QIANG CHENG and JALE TEZCAN, Plaintiffs-Appellees, v.
Caption SUSAN M. FORD, Defendant-Appellant.
District & No. Fifth District
Docket No. 5-16-0274
Filed August 9, 2017
Decision Under Appeal from the Circuit Court of Jackson County, No. 15-MR-52; the
Review Hon. Ralph R. Bloodworth III, Judge, presiding.
Judgment Certified questions answered; cause remanded.
Counsel on Ian P. Cooper, Mollie G. Mohan, and Jenna M. Lakamp, of Tueth
Appeal Keeney Cooper Mohan & Jackstadt, P.C., of St. Louis, Missouri, for
appellant.
Shari R. Rhode and Martin D. Parsons, of Rhode & Jackson, P.C., of
Carbondale, for appellees.
Panel 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 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.
¶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
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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. 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 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.
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¶ 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.
¶ 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 granted Dr. Ford’s
application for leave to appeal.
¶ 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 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.”).
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¶ 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 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 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.” (Internal quotation marks omitted.)
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.
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¶ 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 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 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.
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¶ 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 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.
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