in collars shoes for one moment column was a graduate student at the university of illinois he was sailing through his graduate program he was employed by the client center for the university of illinois he became nationally and internationally the publication which guides completely the processes that test this particular cd it's a three step process you have assessment inquiry and then you have an investigation these and that is a primary due process concern that the policy addressed in other words if someone complains to the university that there's a problem in the research and there's t the second part of the situation here is that when you're going through this process it's supposed to be an academic integrate process where you have people on these committees they talk to you they look at your evidence they look to see what you have to say well in the process we he receives a copy of a ladder to get a copy a letter from howard got there he is the officer who's in charge he's the integrity officer and it's directed to the entry team and it says don't talk to mr literal you're not to interview him talk to him and once again the delegated authority which is given to power gunther specifically says here in the in process normally you're going to talk to the student by so you can get his side of the story now those are just a couple of examples of what in fact we're looking at terms of this process obviously this whole process is it is in a continuum university see what can i do here how do i get some relief how do i get the university how do i have some judge or some court tell the university you've got these policies and procedures they're guaranteed to me i have a right to have basic policy make howard gunther the research integrity officer comply make him stay within this delegated authority so we file a lawsuit in champagne county and on the circuit court there is a clear exception to the prospective injunctive relief exception the supreme court at least on three different occasions three different cases have in fact talked about that you have the landfill versus pollution control board case that's in the the ellis versus board b r d case and healy versus ball all three of those cases stand for the proposition that if a plane does not see present damages if there's not a present action which could cause the all we're asking though you're saying that because the university's policy you know regular a sions when i found by the letter of the law there that means they acted in excess of their authority yes i think so and then what does section three zero five denmark to go in and do this incredible supercomputing job we haven't done any of that and that's what the supreme court has consistently held if all you're doing is seeking a directive from a court directing the research integrity us in cases where jurisdiction to enter an injunction against the state has been found to exist the state's agent had been acting without authority in this case it's clear the defendants are authorized to conduct the investigation so i guess they discount the fact that you're alleging that they did it improperly or not following their procedures is that a distinction that's legitimate well your honor i'm not sure it is and that's a real fine line from is there a real general interest in university having their research integrity officer obliterates that this is not close to base just ignore all of the procedures i don't think that's a legitimate right that they have or a legitimate expectation we're not asking we're not so naive to think that university can't proceed through this process they can't but just follow the rules that's really what we're saying and does is the distinction between he does this this he has the authority to proceed as research integrity officer he does but his a applies to all the students and then when you actually go through the process you know these are just little kind of things that they've missed by a day when someone doesn't give you access to the evidence you're going to trial and you can't see the evidence and you know i'm ely terminated yes we could have done it from the very beginning judges because we could claim they violated these rules and that we believe that there's damages and so forth but so you do have a remedy in the court a claim that's just not the one you want to pursue but the  not to talk to him and get his side of the story pretty outrageous conduct in my opinion and that's what we're asking the circuit court to do is to preclude it i mean we have this with this isn't that difficult it's all this is asking the court in a case where we're not seeking dam and i think there's a huge distinction because present action any action any time i guess could lead to claims and damages but that's true in any case if you look at it from that perspective if you're going to preclude jurisdiction on the possibility that there could be a district court district in this case basis decision on a case of brandon which is really decided what this really what the forest for what the first district has planned is that under the  language that's relevant to three or five is the board of trustees the universe is going to have power to contract and be contracted with the soon to be sued provided that any suit against the board based upon a claim sounding in tort must be filed in the court of claims in the first district has said well this is not a sounding board and as they went through the exceptions in their requirements the court claims that it doesn't fit with the needs this is a case in which if you look at the enabling statute if you can be isn't difficult if this young man access to the materials that thousands and thousands of big bytes of data that you've taken out who isn't way that he can't look at the effect it's it's pretty simplistic in that sense that's all we're asking to do don't write the report don't tell the members of the committee can't talk to him i mean it to me it's a fundamental issue universities there and does the circuit court of jurisdiction if you decline then you know again i mi larry so that's really the difficulty i see collop and people situated similarly to him if you don't how about if you don't step in and let the circuit courts have jurisdiction for the for the limited purpose of listening to see if the court briefs and simply tell the research integrity officer just do your job stay within your delegated powers don't jump out and take personal liberties and tell the committee you can't do this you can't talk to this and i can sit here and tell you that i can point to exactly that line because you're right that that's an excellent question all i can say is that this line here in this case isn't for me this isn't easy this isn't a case where the university of their own rules by a day or two days or something along those lines i mean here you just take these concepts to me that are fundamentally and that's what i'm saying really the preamble to their act and says these are fundamental principles which we bestow upon all the university members and then you just a literal like that i think there's a clear distinction the research integrity officer has the authority to conduct the research to oversee it to do to do all these things but then may please the court of william rickman on behalf of happily or of trustees of the university of illinois the core function of the university of illinois is management of its economic affairs and maintaining the integrity of its academic affairs is of the highest importance at the time this case was filed the plaintiff was seeking to halt and i'm going investigation of circuit court and the appellate court found plaintiff's complaint was clearly an attempt to interfere with performance of an authorized i am sized word authorized governmental function mr martinkus has conceded throughout this case that this was an authorized governmental function that being the investigation into complaints of research misconduct the circuit court and the appellate court correctly held that the fact plaintiff was not seeking money damages is irrelevant because the relief sought in this case an injunction would interfere with an authorized exercise of governmental function plaintiff makes three arguments in favor of jurisdiction in the circuit court versus grouping can i just stop you minute and just at the mention of injunction because i'm confused about one thing on page ten of your employee brief you have a quote from the ph l case and you say in there a present claim is one that seeks prospective injunctive relief in other words stopping an entity or person is that at the time the investigation was conducted by defendant or gunther he was in excess of his authority because the investigation did not follow internal policies and procedures which govern the investigation into the academic misconduct in this argument the plaintiff fails to distinguish between a governmental employee who is acting beyond the scope of an already authority from a governmental employee who is acting in a wrongful manner as i mentioned the defendant concedes that howard gunther as the research integrity officer of the university was authorized to conduct an investigation wrongfully performing those functions does not confer subject matter jurisdiction on the circuit court you tell a court use and colorful language in and talking about this they said that the definition of acting in excess of authority does not mean acting in a wrongful it does mean sticking your nose in business where it doesn't belong here howard gunther was not sticking his nose in business for tonight along the allegations which we were not permitted to disputing which must be taken as true in this case or that he performed in a wrongful manner though once they stick their nose in the business to where they are entitled as they could do they have to abide by their own procedures they should abide by their own procedures but if there is a claim brought against them for failing to do that that claim must be brought in the court of claims and what would what relief with the court of claims give well in this case the plaintiff is alleging damage to reputation plaintiff is alleging loss of gran fund money the plaintiff has argued loss of employment opportunities those are types of claims that would support the word of money damages so that would be the remedy in the court of claims if if he was able to prove the charges that he's made but that would not give him the right to talk to the inquiry board to see the evidence or do any of the things that the procedures would allow well if if those allegations are true it would support his theory of liability and he would win his case it may not get him you lose some sort of a little jumped of really though one of the things that mr martinkus has emphasized in his briefing and in his argument this morning is that they perceive the violation of internal rules by the university investigator as being outrageous appellate court characterized this as skillfully attempting to plead and argue their way around sovereign immunity the allegations of the complaint again do not statutory or constitutional authority they are different from this case once again because the investigation was an authorized governmental function the appellate court also noted that the the basis for the d process claim and i would mention that this is a claim of violation of due process before the process was completed before there was a final outcome but the basis for that claim was passed and that it would be hard to characterize this claim as anything other than a present claim the injunctive relief was trying to stop in midstream an ongoing investigation and although the complaint is not request money damages as i mentioned before images are recoverable in the court of claims for the reputation defamation claim that's pleaded in this case loss of grant funding and employment opportunities what would happen if an injunction stopped this investigation is that the charges of academic misconduct would be left unresolved the university would be stopped in its tracks from the investigation my understanding from the argument of your opposing counsel is they do not want to stop the investigation they want the investigation to be conducted according to the rules of the university right but but the the lawsuit would enjoin the university from the investigation that's what they have pleaded that they that the investigation be stopped what happens after that is not part of the lawsuit i think that the lawsuit if it were to go forward in the circuit court would be based on finding out whether or not due process is violated and then what happens after that would presumably happen but there would be a long delay i would agree that perhaps at the end of that process the investigation would be resume where do you see the line is between exercise discretion  ting ones well i go back to the definition of exceeding one's authority as as sticking your nose in business where it doesn't belong here the university of illinois authority the rockford memorial hospital case the landfill versus solution control or case all analyze whether the state agency or the employee of the state was  acting within his statutory authority or his constitutional authority that's just another way of saying sticking your nose in in the wrong place if you're exercising authority that you don't hear you're sticking your nose in the wrong place and so you're saying it's that limited if they have the authority to do the investigation it doesn't matter how they do well they don't have to in the part of the claims this might might very well matter how they do it but but that has to be determined in the court of claims i think that if you follow this this line of argument to its conclusion any state employee who is being disciplined is being fired and i'm in the circuit court allege that rules weren't followed and then you have the case heard in the circuit court and i think that's not what the statute the court of claims act intends that's not what case law up to this point has helped  if it's all you have to do is say that the state agency did not follow their internal rules and jurisdiction in the court of claims is avoided i think you've you've defeated the whole purpose of th violation if it occurs is by the state officer or the head of a department of such officer head may be restrained by proper action instituted by the citizen in and in the service of the officer suit exception talks about the fact that state officer is not acting as such he is acting outside the scope of this authority islets the rules or even not only the laws of the constitution but the rules of procedure while sassi kramer's a case that i think might illustrate what you're asking me in that case there was a nice university professor suing another university professor and the defendant in that case had intercepted the plaintiff's male had counsel students to give false evaluations he had done things that as a supervising professor was outside the scope of his employment  i would say that in response to your question if it's within the scope of his employment simply by saying that he's done it in a wrongful manner doesn't take you out of  or or even terminations without proper due process well typically what happens is a complaint is filed in the court of claims and then it stayed pending the outcome of circuit court suits or federal courts suits  this investigation has been completed now and they're in the penalty phase of it but i think he could have filed in the court of claims from from day one right  but there's no way he could file in a court of claims to get the relief he's requesting is that fair well that gets into the question of whether the court of claims has authority to issue injunctions and mr martin has has correctly stated that the  reluctant to do that even though this court and public courts have said it's not prohibited in the court of claims but he isn't title to relief in the court of claims for what he's alleged in this in this case and so i think that you get into the constitutional argument which was is the third argument that the plaintiff makes that he's being deprived of a constitutional right because he's doesn't have the remedy that he wants and this court has addressed that issue before it's not a new argument and the courts held that the language in the state constitution is an expression of philosophy not a mandate for a certain remedy so yes he can going to do it but they're not prohibited from doing it he does have a remedy if we would agree with you that this belongs in the court of claims and a pronouncement that they would have you have issued an injunction of appropriate probably wouldn't result in that sued provided that any suit against the board based on a claim sounding in tort must be filed in the court of claims so it doesn't mention other types of lawsuits being filed in the court of claims and what the plaintiff is arguing here is that this  control the actions of the state must be filed in the court of claims plaintiff is relying on the city of chicago versus board of trustees case first district case in that case it was a declaratory judgment action the city of judgment action was not sounding in tort and did not seek money damages that it had jurisdiction the court then went on to find that the city could not compel the university to collect the taxes but the first district interpreted that case as the first district saying that any case that's not something in tort could in fact be brought in the circuit court i don't read the city of chicago case that  subject the state to liability or control seems to control the actions of the state must be brought in the court of claims would be one of the consequences if we  ccept your point of view in the future as far as individuals realty to raise claim against i think that the consequence will be that the case law as it has developed up up to now will go in the same direction and that is that any person who brings a claim that either seeks to control authorized governmental functions or interfere with authorized governmental functions or could subject the state to potential liability must be brought in the cour kind of maybe i look at it this way if you're awfully applies the rules that may be partly within his authority but he didn't do that he wanted to change the rules there's no application when you go in and say i know the policy says we have to sequester the evidence and integrity restriction publication that is not within the authority of the research integrity office or do the argument that you can go to court claim to get damages i think you look at this realistically what is  professor's what is it really about his integrity here if he is going to go out on the market and dance his position and well known absolute scientists having some fine by the university which he deemed to have violated the integrity and the research policies of the universal right you go seek all the damages you want the old adage of a pillowed whose fathers and who try to collect it that's really what i think is the distinction here we're not looking at damages we're looking at the opportunity to prevent injustice because once it's done what's university finds him to do these things writes letters to the funny agencies that he's been guilty of this research misconduct he's pretty well done you can go to court games i want that that's not what this should be he should have an opportunity to get a fair trial a fair proceeding in the university and have them but but that shouldn't he shouldn't have to rely upon some huge change of policy in the court of claims to try to get this really it's a real simple you know we talk about university and out how they stand for charity and all these things and i think that's great but when you fight us on a simplistic simplistic request follow your rules let's let's see what you've got what is it you're claiming the guy who brings the charges gathers it all keeps it doesn't want to see me it just seems ironic to me that universities talk about integrity and all that and at the same time they're fighting us and simply let's see which letters bend but let us talk to the other side so that's really what you're here against i do think it's an important ruling i really do it's simply a case for my client should simply get a fair shake shake that university says that they're supposed to get and they haven't hegarty you know claim to be clear you are not seeking to stop the end of staycation absolutely public doing is asking that it be conducted according to the rules so we only have a shot at this thing to convince the members of this committee when you're when you're being asked questions and you're you're being accused of things and all the information is within the control