Gocheff v. State Community College

Mr. JUSTICE JONES,

dissenting:

I agree with the majority that the narrow issue in this case is whether defendant State Community College of East St. Louis is a division of the State within the purview of section 8(c) of the Court of Claims Act (Ill. Rev. Stat. 1975, ch. 37, par. 439.8(c)), which places jurisdiction of “[a]ll claims against the State ° °” in the Illinois Court of Claims.

However, I disagree with the conclusion reached by the majority for the defendant college is a State agency and I accordingly respectfully dissent.

It is correct to say, as the majority has said, that whether an action brought against an officer or agent of the State is actually an action against the State itself depends upon the degree of administrative and financial autonomy which the agency possesses and that the factor which is entitled to most weight is whether the general funds of the State can be reached to satisfy an obligation of the agency.

There is no question that the Illinois Community College Board (“State Board”) created by section 2 — 1 of the Public Community College Act of 1965 (Ill. Rev. Stat. 1975, ch. 122, par. 102—1) is an agency of the State of Illinois. The majority even concedes the point, as they must.

Furthermore, there is no question that the defendant community college district was created by a special act of the legislature which amended the Public Community College Act of 1965 by adding section 2—12.1 in 1973 (Ill. Rev. Stat. 1975, ch. 122, par. 102—12.1, effective Oct. 1, 1973).

Having acknowledged the foregoing the majority seeks to disassociate the State Board from the operation and management of the defendant college. Such cannot be done.

Even the name of the defendant college denotes it as an agency of the State of Illinois: State Community College of East St. Louis. But, the name aside, there are many more indicia that the defendant college is a State agency and that consequently the instant case is a suit against the State.

Initially, and of paramount importance, the statute providing for the creation of the college (section 2 — 12.1 of the Act) makes it obligatory upon the State Board to “establish, maintain and operate” the college.

For purposes of operating the defendant college the same creating statute confers upon the State Board (not the college) certain enumerated statutory powers which are elsewhere conferred upon other community college boards. But notably lacking from such enumerated powers are those conferred upon other community college boards to levy and collect taxes (section 3.20 of the Act), borrow money and issue bonds (section 3.33 of the Act) and invest funds of the district (section 3.47 of the Act).

In fact, the State Community College of East St. Louis is the only community college in the State of Illinois without a local tax base. Funds for its operation are supplied by the State Board by budget requests submitted to the State Board of Higher Education pursuant to section 8 of “An Act creating a Board of Education * ° *” (Ill. Rev. Stat. 1975, ch. 144, par. 188). Upon approval of the budget by the Board of Higher Education and appropriation by the legislature, the funds are paid from the general revenue fund of the State pursuant to sections 7 and 10(15) of “An Act in relation to State finance” (Ill. Rev. Stat. 1975, ch. 127, pars. 143 and 146(15)).

The majority asserts that funds of the State could not be reached to satisfy any judgment that might be rendered for the plaintiff in this case. They apparently attach great importance to the fact that there is a policy of insurance extant which will be available to satisfy a judgment.

The presence (or absence) of insurance coverage in this case is entirely gratuitous and is not a factor to be weighed in considering whether the State Community College of East St. Louis is an agency of the State. The majority seems to equate the presence of insurance in this case with the removal of municipal tort immunity to the extent of insurance coverage as provided in section 9 — 103 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1975, ch. 85, par. 9—103). No similar legislative scheme for tort immunity or waiver thereof to the extent of insurance coverage is provided in the Public Community College Act for the State Community College of East St. Louis or any other community college in the State. The presence of insurance in the case is anything but established. The only reference to it is a bare assertion of the matter in a memorandum of law filed by the plaintiff with the trial court. No particulars, including amounts of coverage, are matters of record or are alleged in any pleadings.

Plainly, general funds of the State could be reached to satisfy any judgment rendered in favor of plaintiff.- There is no local tax base for defendant college and there is no provision in the law for them to levy and collect taxes or issue bonds to pay a judgment. All their funds are supplied by the State. There is no other source of funds to satisfy a judgment. If insurance is available, it can, of course, be utilized. However, even if a policy of insurance were available it might be insufficient in amount, the company might go insolvent, or, for a myriad of reasons the company might refuse payment or be unable to make payment. In any of these events the general funds of the State would be the only source of funds for payment of a judgment.

The majority places reliance upon the fact that the Public Community College Act was amended by the legislature, effective August 23,1977, so as to unequivocally place jurisdiction of all claims against the defendant college with the Court of Claims (Ill. Rev. Stat. 1977, ch. 122, par. 104—8). They follow that line of cases which hold that where the legislature makes a material amendment to a statute that it was the intent to change the law. But that reasoning does not follow here for the simple reason that had not the State Community College of East St. Louis already been an agency of the State of Illinois the 1977 addition could not have been adopted. Certainly the 1977 addition did not create a State agency where none existed before.

I would affirm the trial court.