dissenting:
The majority opinion relies upon the many cases holding that a State waives its right to governmental immunity when it binds itself in the same manner as an individual upon entering into a contract. (See, e.g., Grant Construction Co. v. Burns (1968), 92 Idaho 408, 443 P.2d 1005, and the cases cited therein.) However, it is my view that such cases are not relevant to this appeal because Illinois abolished the common law doctrine of sovereign immunity and specifically limited the doctrine to immunities created by statute. The Illinois Constitution of 1970, article XIII, section 4, provides as follows:
“Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.”
The General Assembly implemented this constitutional exception by reenacting the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.1 et seq.), which provides, in part, that the Court of Claims has 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. 1979, ch. 37, par. 439.8.) Since the terms of the Constitution and the Court of Claims Act quite clearly limit plaintiff to the statutory remedy provided by the court of claims procedure, the sole issue to be determined in this case is whether the Court of Claims Act is constitutional. I believe the circuit court properly dismissed the complaint, not because of the common law doctrine of sovereign immunity, but by proper application of the statutory provision limiting plaintiff to a single remedy in an action against the State. The common law doctrine of sovereign immunity is not involved in this case, and neither is the claim that the State waived its immunity when it entered into a contract. The legislature has provided that a party contracting with the State has recourse only to the Court of Claims, and any one contracting with the State does so subject to that limitation. Therefore, those cases from other jurisdictions which found an implied consent to be sued where the State entered into an authorized contract are not applicable to the instant cause. Implied consent to be sued cannot be found where, as here, the legislature has expressly provided to the contrary.
Plaintiff also contends that the Court of Claims Act is unconstitutional upon several different grounds, including that it denies plaintiff the right to due process, right to a jury trial, right to appeal, and the right to equal protection; that it takes property without just compensation; that it violates the separation of powers doctrine; and that it denies the right to a remedy for every injury. Most of these contentions have previously been considered by the Illinois Supreme Court in the case of Seifert v. Standard Paving Co. (1976), 64 Ill. 2d 109, 355 N.E.2d 537, where six negligence actions were filed against the State by persons claiming to have been injured by the negligence of State employees or agents. Our supreme court held that the actions were barred by the Court of Claims Act and that the Act was constitutional. In its decision the court ruled as follows: (1) that the Act did not violate the right to a trial by jury since such right does not apply to statutory proceedings unknown to the common law; (2) that neither equal protection nor due process were violated by the failure to provide a right to a jury trial, a right to appeal, or a right to subpoena or cross-examine witnesses since Court of Claims proceedings are not judicial proceedings; and (3) that the separation-of-powers provision of the Illinois Constitution was not violated. Although the majority would distinguish Seifert on the ground that it involved tort actions, not contract, I think this is a distinction without a difference as to these constitutional issues.
Plaintiff argues that it was deprived of its property without due process of law by being denied a right to sue the State in a court of law where the State breached a contract. Plaintiffs position is in part based upon its further assertion that the Court of Claims is not a meaningful remedy, and the majority agrees. However, this position presupposes a right to a judicial remedy for every wrong. Such right does not exist. The legislature has provided a nonjudicial remedy for the orderly resolution of claims against the State, and that remedy is sufficient to meet the requirements of the Illinois and Federal constitutions. As was noted in Seifert, the imposition of limitations upon statutory remedies does not infringe upon the constitutional right to a remedy. The speculation that a remedy may not do equity in every case is not grounds for invalidating the statute creating that remedy.
In a related argument, plaintiff suggests that the failure to permit a suit against the State for breach of contract amounts to a taking of private property without just compensation in violation of the fifth amendment of the United States Constitution. Again I believe that an adequate means of compensation is provided in such cases and that the Constitution does not guarantee a judicial remedy.
Since plaintiff’s contentions concerning the unconstitutionality of the Court of Claims Act were disposed of by the Illinois Supreme Court’s ruling in Seifert, I would affirm the order of the Circuit Court of Peoria County.