*1 (No. 61694. al.,
JOHN A. SMITH et MICHAEL Appellees, al., Illinois State JONES, Lottery, Appellants.
Opinion 6, 1986. Rehearing June filed 26, 1986. September denied *3 CLARK, C.J., SIMON, J., dissenting. and General, Neil Hartigan, (Jill Attorney Springfield Stewart, Wine-Banks and Roma Gen- Jones Solicitors eral, and and B. Vincenzo Chimera As- Rosalyn Kaplan, General, sistant Attorneys Chicago, counsel), appellants. Stuckel,
R. Harvey, Chartered, & Wayne Harvey Parsons, Peoria, H. and Richard all for appellees.
JUSTICE WARD delivered the court: opinion John plaintiffs, Smith and Dale filed a Livingood, circuit court of Peoria County Jones, Michael the Director of the Illinois State Lottery, and the “Illinois State con Lottery” alleging breach of tract. The complaint, which to ask plaintiff amended relief, also for was declaratory injunctive dismissed on ground of failure to exhaust administrative reme dies. The court reversed appellate (130 Ill. App. 390), we the defendants’ granted for leave to petition ap (94 Ill. 2d R. peal 315). 18, 1983,
On June Smith and each Livingood pur- “Lotto,” chased a ticket to Illi- participate weekly nоis held Lottery drawing. drawing that eve- disclosed that ning among were those who picked had numbers. The subse- winning learned that there had been 78 holders of the quently winning numbers and that the amounted to grand prize $744,471. Their complaint alleged Lottery had $1,750,000 advertised the tо be for the grand prize pool week concerned. It stated the claimed announce- *4 $1,750,000 ment of a an the Lot- was offer prize which the tick- plaintiffs accepted by purchasing the tery, “for The ets consideration.” claimed that good plaintiffs the “acted in violation of contract law” by Lottery
130 so doing to the advertised in refusing pay prize, the in the Illinois Law authority” Lottery went “beyond seq.). They 1981, 120, Stat. ch. (Ill. Rev. par. the to other asked that the Lottery produce proof verify or rеstraining tickets and that winning temporary der the from making any issue to defendants prevent Lotto The subsequent drawings. for prizes distribution Michael further asked the court to declare that had acted beyond authority Jones that liable “at least” one sev thе defendants were for $1,750,000. enty-eighth stated, been the circuit court held that
As has to exhaust their rem plaintiffs had failed administrative Illinois under section 7.3 edy, namely, hearing Law violations” “complaints charging Lottery 1981, ch. Lottery par. Illinois Law The also had сontended in their mo defendants 1157.3). a suit tion to dismiss that the action was effect barred the State of Illinois and was The court reversed on appellate sovereign immunity. grounded was ground “generally that complaint said, it which, from the fraud,” exceptеd oper court of exhaustion of administrative ation of the doctrine remedies. here was defendants that argue failure exhaust because of only dismissed
properly im- of sovereign but because remedy, administrative munity. immu question sovereign
We will first address the circuit court had subject to determine whether nity this issue argue matter jurisdiction. was it was not raised the appellate waived because it is matter court, subject jurisdiction axiomatic but Nationale Compagnie ex rel. (People cannot be waived. Air France Giliberto Ill. “ sovereign of 1970 our constitution abolished ‘Though
131 1970, XIII, it was re immunity (Ill. 4) Const. art. sec. by stored the General as the Constitution Assembly, per ” mitted.’ v. 74 Ill. (City Springfield Allphin (1978), of 117, 2d 123, Department v. quoting Appellate Revenue of 392, 394; Court 67 Ill. 2d also (1977), see Sass v. 485, Krаmer 72 Ill. 2d That (1978), 489-90.) enactment of the General Assembly provides “[e]xcept pro *** vided in to create Court of Claims [an act] of State Illinois shall not be made defendant or party (Ill. 1981, 127, court.” any Rev. Stat. ch. par. 801.) The Court of provides: Claims Act
The court shall jurisdiction have exclusive to hear and following determine the matters:
(a) against All upon claims the state founded any Illinois, law of the regulation State or upon any by thereunder or an executive administrative officer or agency ***.
(b) against All claims upon the state founded any contract entered into with State Illinois.” 1981, 37, ch. pars. 439.8(a),(b).) of the State is immunity not determined the for by mal designation of the parties, but rather issues involved and the relief sought. Bank (Herget National v. 405, 105 Ill. 2d Kenney (1985), 408; Sass v. Kramer 72 (1978), 485, Thus, the 490-91.) Stаte’s immu cannot nity be evaded an by naming agent official or the State as the nominal defendant. The “official party acts of State officers are in effect acts the State it (Sass self.” v. (1978), 485, Kramer 72 Ill. 492.) 2d There are, however, to this. An exceptiоns action against State official for conduct in his official will with capacity stand a motion dismiss the on im sovereign if grounds munity complaint alleges the official is an law enforcing unconstitutional or a law of violating Illinois and thus his Na acting beyond authоrity. (Herget 411; tional Bank (1985), 405, v. 105 Ill. Kenney 2d Senn v. Miller Nursing Park Center 169, Ill. (1984), Sass v. Kramer In 72 Ill. 2d 187-89; (1978), offi said that the action “strips these cases it is is then cer his official status conduct [and] State, is action as the nor conduct regarded an the State.” him considered action Tool Revenue Department Moline Co.
Ill. 37. Jones, named as defendants Michael *6 State Director, and the “Illinois official capacity of Reve Department which is a division the of
Lottery,” State course, of the sovereign immunity nue. Of or of the State can never be a proper a dеpartment cir in an action the brought directly defendant party Co. v. Department Tool Revenue (Moline cuit court. of the 35, plaintiffs’ must examine 37.) Ill. We (1951), Di their suit the against to determine whether complaint exceptions rector falls one of thе above-mentioned within com to The one-count sovereign immunity. the bar of cause the elements of a plaint alleges breach-of-contract to of and failure offer, action: consideration acceptance, not that the Director allege The do perform. nor do al statute, an unconstitutional they was applying law They that the Director violated a of Illinois. lege the “acted outside his author state that defendant only *** Fur of contract Director in violation law.” ity as dis to the motion to ther, in their defendants’ response the concede that the actions of miss, the plaintiffs letter the of to have been done Lottery pursuant “may there regulations Act and the rules and the [Lottery] law of of contrаct under, but in violation principles are rights seeks a declaration of ***. [T]he in origi a contract.” (Emphasis and duties to pursuant the thus, alleges only The nal.) plaintiffs complaint, breaching contract. by Director exceeded his authority defendants an does the allegation deprive Such the As sovereign immunity. protection bar the above, shown breach-of-contract actions State are to (see directed the Court Claims specifically 1985, 37, Ill. alter 439.8(b)), ch. par. though, can the cоmplainant administrative natively, pursue under section 7.3 of the Illinois remedy provided Lottery 120, Law Stat. Rev. ch. par. 1157.3).
The circumstances here are unlike those in Senn Park Nursing Center v. Miller 169. In Ill. 2d Park, Senn sued the Director of Illinois plaintiff of Public to Department Aid disbursеment of compel Medicaid funds accordance the federally ap with proved Illinois State Medicaid The had re plan. duced benefits through a rule which adoption failed to with notice comply statutory requirements. Park court in Senn adopted reasoning appel “ late court ‘an action to compel public official to perform a clear and is not a mandatory suit duty ” (104 State.’ “clear and man datory course, duty,” was the to duty disburse Medi caid benefits the manner sрecified plan. Here the do not point clear any statutory or duty statutory right to benefits. What is involved is *7 drawing a in the of simply which amount prize money due the is in plaintiffs dispute.
The further the ex- plaintiffs argue that ceeded his fraud, because he committed a a de- authority ceptive and a as practice, criminal act well. The plain- tiffs’ complaint, however, does not contain of allegations fraud and “A deceptive in fraud practices. complaint must that a false statemеnt of material allege fact was made, that the the statement or party making be- knew lieved it untrue, to the to be that whom state- party the ment so, was made had a to it and that right on did rely the was statement made the of the inducing purpose to act, other that party reliance the to person (Re whom the statement was made led to injury.” darowicz Ohlendorf The 185-86.) once, mention plaintiffs “misrepresenting” pass it is that their but clear the one-count ing, complaint, of a of con the elеments breach complaint alleged only Too, at ground tract the have no to plaintiffs action. of to now on a claim a violation of tempt rely act] “[an *** fraud, and unfair to consumers protect 1981, ch. or acts or deceptive practices” 261 seq.), 121½, that statute was par. or to in the And there mentioned referred complaint. alleged was no of Criminal Code of 1961 violation the a the suit must be regarded complaint. plaintiffs’ the of Illinois and to the de subject suit not, fense We dо as the sovereign immunity. plaintiffs of to claim, the State has a breach a con right that suggest And, course, we tract or to act of improperly. otherwise a itself the that do not consider the claim contract was formed. out, complaint
As have the pointed plaintiffs’ we fraud, failed to and we reverse allege appellate was holding “generally court’s in fraud” and not to subject requirement grounded administrative remedies. exhausting For judgment appellate the reasons given, of thе action by court is reversed and dismissal circuit is affirmed. court reversed; court
Appellate circuit court affirmed. CLARK, dissenting: CHIEF JUSTICE should I majority with disagree in the Court Claims. bring be this suit required of the legislative is part Court Claims In the not a court law. It is government. branch of does not have Claims, claimant-taxpayer Court *8 135 to a trial by jury. (See S.J. Groves & Sons Co. v. right Also, (1982), once a claimant has obtained favorable decision in Claims, the Court of that decision must then to the presented be General As where an sembly, is a appropriation prеrequisite pay ment claim.
This is not a suit State, suit which should cloaked be with the doctrine of immu- sovereign nity. appellate court was correct in holding that the plaintiffs’ cause of action was grounded fraud. Be- cause I believe the appellate correct, court was I would hold this suit to be outside the perimeters Court of Claims Act.
In Senn Park Center v. Nursing Miller Ill. 2d 169, 188, this court stated: case,
“We believe that in this where the defendant officer acted in excess of his statutory authority, rights of to be free from the consequences of his outweigh action the interest of the State which is served by the sovereign immunity doctrine.” In Senn Park we also Sass v. Kramer from quoted (1978), 72 Ill. wherein it was stated: legal
“While official acts of State officers are effect aсts of itself, the State illegal performed acts by the offi not, cers are and when a State performs illegally officer ***, may a suit be maintained against the officer and is not an action the State of Illinois.” (Emphasis added.) 72 Ill. 2d 492.
I believe that the complaint in this case facts alleged sufficient to a cause support of action for fraud —an ille- gal act aby State officer. It is alleged the amended that the defendant made a false statement re- the amount garding to be won. It is monеy further al- leged in the amended complaint that the defendant “mis- represent[ed] plaintiffs” what was, amount the plaintiffs relied on that statement and were induced *9 purchase tickets, and their reliance and purchase tickets is those what caused their Because a injury.
fraudulent act officer by is excess his statu- State, tory this suit is not suit authority, doctrine of is sovereign immunity inapplicable, the motion to dismiss allowed. was improperly
What is is the really at issue this case trust faith of the of this State peоple purchase lottery who tickets is believing that since run lottery State, it will be run who properly. Many people, may otherwise their hard-earned trust spend money, State-run will be fair. State should lottery beyond be this it like is reproach something impоrtant for in their government. to have faith people
I unjust in this case is believe decision I dis- reasons, above-stated and therefore respectfully sent. in this
JUSTICE SIMON dissent. joins (No. 61819. ILLINOIS, Appel- OF THE STATE OF
THE PEOPLE al., Appellees. JAMES lant, v. CURTIS 20, 1986. Rehearing Opinion June filed 26, 1986. September denied