delivered the opinion of the court:
Plаintiff filed suit in the Court of Claims alleging the University of fllinois breached its contract with him when it failed to award him a Ph.D. The claim was denied and plaintiff sought a writ of certiorari frоm the circuit court contending his due process rights were violated by the Court of Claims during its deliberative process. On motion of the defendants, the petition for issuаnce of the writ was dismissed. On appeal, plaintiff contends the trial court erred in dismissing the petition prior to examining the record of proceedings madе before the Court of Claims. Because we agree the petition was improvidently dismissed we decline, with one exception, to address the substantive issues рlaintiff raises concerning the merits of the alleged due process violations committed by the Court of Claims.
This tortuous litigation began in 1975 when plaintiff filed a two-cоunt complaint against the University of Illinois (University) after it refused to award him a Ph.D. in business. Plaintiff sought an order of mandamus directing that the University issue the degree and monetary damages. On appeal from the dismissal of both counts, this court reversed the mandamus count but affirmed the dismissal of the money damages claim on the basis that such an award could only be made by the Court of Claims. Tanner v. Board of Trustees of the University of Illinois (1977),
On remand, the circuit court concluded mandamus would not lie because plaintiff failed to demonstrate the University acted maliciously or in bad faith or that it arbitrarily and capriciously refused to award the degree. That deсision was affirmed on appeal. Tanner v. Board of Trustees of the University of Illinois (1984),
Following our opinion in Tanner II, plaintiff commenced this action in the Court оf Claims alleging breach of contract. Although an evidentiary hearing before a commissioner was held in 1986, the report and recommendation of the cоmmissioner to the full Court of Claims was lost. By motion, plaintiff sought the commissioner’s original trial notes and all notes used in the preparation of the missing report. The Cоurt of Claims denied this motion and the commissioner apparently prepared a substitute report since he did not retain a copy of his original. On May 9, 1989, aрproximately 2xh years after the original hearing, plaintiff’s claim was denied.
Plaintiff then filed his petition for writ of certiorari in Champaign County, which was transferred to Sаngamon County on defendants’ motion for change of venue on March 3,1992. The single-count petition alleged plaintiff was entitled to access to the originаl notes of the hearing commissioner, the Court of Claims failed to address six specific issues plaintiff raised, and the Court of the Claims decision relied upon an incorrect standard of proof.
Defendants filed a motion to dismiss which the circuit court granted. In so doing, the court concluded that although plaintiff was alleging a violation of due process rights, in reality, he was seeking a prohibited review of the merits of the underlying decision of the Court of Claims. Except for the decision of the Court of Claims and several other short documents attached as exhibits to the petition, none of the record before the Court of Claims was ever filed or made a part of the circuit court proceedings.
Plaintiff’s initial contention is the trial court’s ruling cannot be sustained because there was no rеcord from the Court of Claims filed in the circuit court for the court to review to determine whether plaintiff’s due process rights were violated. We agree.
The principles applicable to certiorari practice have been set forth by the supreme court. Most recently, the court stated:
"The сommon law writ of certiorari was developed to provide a means whereby a petitioner who was without avenue of appeal or direсt review could obtain limited review over action by a court or other tribunal exercising quasi-judicial functions. [Citation.] The purpose of the writ was, and is, to havе the entire record of the inferior tribunal brought before the court to determine, from the record alone, whether that body proceeded according to the applicable law. If the circuit court, on the return of the writ, finds from the record that the inferior tribunal proceeded according to law, the writ is quashed; however, if the proceedings are not in compliance with the law, the judgment and proceedings shown by the return will be quashed.” (Stratton v. Wenona Community Unit Distriсt No. 1 (1990),133 Ill. 2d 413 , 427,551 N.E.2d 640 , 645.)
When confronted with a complaint for common law certiorari, the court has only two powers, mainly, to quash the proceeding or to quash the writ аnd dismiss the petition. (People ex rel. Nelson Brothers Storage & Furniture Co. v. Fisher (1940),
"The terms ’quashal’ and 'dismissal’ are used interchangeably; but a distinction has been made between quashing or dismissing the writ and superseding it, in that the writ is quashed or dismissed only after the return has been made, while it is superseded before the return.
In other words, according to this distinction, after the return of the writ the proper practice is to move to quash or dismiss the writ; but, although the writ has been served, if it has not been returned, it is not before the court and cannot be quashed, and the proper practice is to move to supersede it.” (14 C.J.S. Certiorari § 73, at 107 (1991).)
Where a plaintiff brings into issue the alleged violatiоn of his procedural and substantive rights, the petition is not subject to dismissal, as such issue cannot be determined as a matter of law upon the bare allegatiоns of the petition. 14 C.J.S. Certiorari § 76, at 111 (1991).
The common theme in each of these principles is that the record from the inferior tribunal must normally be made a part of the trial court record for the court to review. In this case, the record before the Court of Claims was never filed in the circuit court because the petition for writ of certiorari was dismissed before the writ was ever issued.
We recognize the issuance of a writ of certiorari is within the discretion of the cоurt (Stratton,
However, plaintiff also alleges the Court of Claims failed to answer or resolve six specific issues which he raised to support the breach of contract claim and applied the wrong standard of review. Whether plaintiff was subject to a deprivation of due process for these reasons is not susceptible of resolution without an examination of the underlying record before the Court of Claims. For example, from the limited pleadings in the record before us, it is impossible to determine the nature, extent, and terms of the alleged contract which the University supposedly breached.
The partiеs agree the appropriate scope of review by the circuit court is that articulated by the supreme court in Rossetti Contracting Co. v. Court of Clаims (1985),
For the foregoing reasons, the judgment of the circuit court of Sangamon County is reversed and remanded for further proceedings.
Reversed and remanded with directions.
COOK and GREEN, JJ., concur.