dissenting:
As the majority correctly notes in the first sentence of its opinion, “[t]he controversy in this case stems from a lease” entered into between the plaintiff, State Building Venture (SBV) and the Director of the Illinois Department of Central Management Services (CMS). 391 Ill. App. 3d at 555. Count III of the plaintiffs complaint seeks nothing more than a declaration of the plaintiffs rights under that lease, and, as such, I believe it is subject to the exclusive jurisdiction of the Court of Claims. See Smith v. Jones, 113 Ill. 2d 126, 132-33, 497 N.E.2d 738 (1986). It is for this reason that I respectfully dissent.
A fair reading of count III reveals that the plaintiff and CMS entered into a lease for certain commercial space in the James R. Thompson Center having an initial term of 15 years and 9 successive 5-year optional renewal periods. The plaintiff contends that CMS has taken the position that, upon the plaintiffs exercise of each five-year renewal option, the Director of CMS has the discretion, pursuant to statute, to determine whether to extend the lease for an additional five-year period. Whereas, the plaintiff asserts that the Director has no such discretion; rather, the statutory discretion vested in the Director relating to renewal options could only be exercised at the time that the lease was initially entered into. The statute involved is section 405 — 315(a)(s) of the Department of Central Management Services law, which provides, in relevant part, that CMS may rent the commercial space in the James R. Thompson Center “for terms not to exceed 15 years subject to renewals when in the judgment of the Director those leases or subleases will be in the best interests of the State.” 20 ILCS 405/405 — 315(a)(s) (West 2006).
Section 1 of the State Lawsuit Immunity Act states that, except as provided in the Court of Claims Act, the State of Illinois shall not be made a defendant in any court. 745 ILCS 5/1 (West 2006). The Court of Claims Act provides that the Court of Claims shall have exclusive jurisdiction over “[a] 11 claims against the State founded upon any contract entered into with the State of Illinois.” 705 ILCS 505/8(b) (West 2006). The prohibition against making the State a party to a suit founded upon a contract entered into between a plaintiff and the State cannot be evaded by making an agent of the State the defendant when the real claim is against the State. President Lincoln Hotel Venture v. Bank One, Springfield, 271 Ill. App. 3d 1048, 1054, 649 N.E.2d 432 (1995). However, an action filed in the circuit court against a State official in her official capacity is not subject to dismissal on jurisdictional grounds if the complaint alleges that the official is enforcing an unconstitutional law or acting in violation of law and thus acting beyond her authority. Smith, 113 Ill. 2d at 131-32.
The determination of whether an action is against the State depends upon the issues raised and the relief sought, not the formal identity of the parties. Senn Park Nursing Center v. Miller, 104 Ill. 2d 169, 186, 470 N.E.21d 1029 (1984). We look, therefore, to the complaint to determine whether the suit is one against the State or against the Director of CMS.
The majority holds that sovereign immunity does not apply to a cause of action which “seeks to enjoin the defendant from taking actions in excess of his delegated authority and in violation of the plaintiffs protectible legal interests.” 391 Ill. App. 3d at 558. I agree. However, the plaintiff is not seeking to enjoin any action taken or threatened by the Director. Additionally, the plaintiff makes no allegation in count III of its complaint that the Director of CMS lacked the authority to enter into the lease in the first instance. To the contrary, the plaintiff seeks a declaration that the subject lease “is binding according to its terms, including options to renew for successive terms.” According to the plaintiff, it is CMS that now claims that it was not authorized to enter into the lease which allows for nine automatic renewal periods.
The majority concludes that count III is a claim for prospective relief rather than a claim for present relief and, as a consequence, is not barred by sovereign immunity. I disagree. This is a declaratory judgment action; the purpose of which according to the plaintiff is to, inter alia, “resolve questions of actual controversy relating to the interpretation of a statute and SBV’s rights under the terms of a lease authorized by statute.” The plaintiff also asserts that it “has been damaged by the State’s change in position with respect to the duration of the lease and the State’s recent refusal to recognize the nine automatic renewal periods in the lease.” Simply put, count III of the plaintiffs complaint is a present claim for declaratory relief involving an actual controversy and asserted present damage, not a claim for prospective relief as found by the majority.
Finally, the plaintiff itself has alleged that the defendant, Maureen O’Donnell, the acting Director of CMS, “has been sued in her official capacity.”
I believe that count III of the plaintiffs complaint is an action against the State for declaratory relief founded upon a contract and is, therefore, barred by the doctrine of sovereign immunity from being brought in the circuit court. The action should have been dismissed on jurisdictional grounds.