thank you good morning my name is paul burke's i'm insisting attorney general and i represent the state of illinois was proceeding the question in this appeal is whether the states conduct during the course of this litigation conferred jurisdiction on the circuit court to a a claim that was barred by the immunity at the facts of the case are fairly simple and straightforward and i can touch on them very briefly that the township of jubilees sued this state of illinois among others to quiet title to a piece of real estate state moved to dismiss that claim on the grounds of sovereign immunity under the immunity act the state may not be made a party or defendant in any court the circuit court denied that motion the state proceeded to litigate the case after its motion was deny including fi counterclaim alleging that it own that disputed property moving for summary judgment and then the case proceeded to cross motions for summary judgment and the circuit court ruled in favor of the township at that point that generally we shouldn't burden the appellate courts with seeking them that as a general rule the courts prefer to deal with questions after the final order that's the final order rule and that only in exceptional circumstances will the state seek in iraq a tory appeal or three way and we didn't fight find that the denial of immunity is not we do find it exceptional because it's raised fairly frequently in fact just last term this court dealt with a case called state building ventures another case where we raised a motion to dismiss an immunity grounds that that motion to dismiss was denied we moved to cross motions for summary judgment lost an appeal to the supreme court ultimately who ultimately decided that we were entitle to a piecemeal proposition it burns the courts and it's so i would say it's common network that we lose an immunity but it's reasonably it doesn't it well as i said it happened last time it happened this term happened in the case of p h l it happens reason frequently enough that if if the court would like us to seem to appeal of those then perhaps it should be included in rule three of seven rather than real rule three way when put down it's described in the procedure in case well because this case dealt with a single race of property and i think the determination was made at the trial court level there that if we were going to adjudicate the ownership of the property it made sense to put put all the chips in in a sense so that nothing was left hanging so that if the township wasn't in title to the property we wanted to make it clear that that it was ours at the end of the day so since our town a claim really just mirrored there that their own complaint right it didn't ask for anything in addition to what was being asked for in the original complaint and what it did was it was an attempt to a sensually because because if they were to win the case on the merits we would essential it be precluded under race judicata from seeking a separate claim against them because the same parties the same issues would have been presented so it just made sense to consolidate the case in the same place i think i think what's critical to our counter claim is that it wasn't what's been described as  grounds of sovereign immunity that motion was denied erroneous lee denied so the question is after we the first thing we said to the court is we shouldn't be here because sovereign immunity bars this claim and sassy kramer i think is very clear quite title action against the state is barred by sovereign immunity and you're in your position this is pretty simple right we've been talking about motions for summary judgment we've been talking about counter claims but is it your position is that there was no jurisdiction  practical difference i guess what we didn't sue right we didn't choose to come into court and it's really the discretion of the sovereign i mean there is sort of a quirk in savard immunity in that we can never be the state can never be held in court but the state can voluntarily reason is that we filed the motion to dismiss based on immunity first so it was very clear that we were saying to the court we shouldn't be here we don't belong here we were trying to game the system or adjudicate rights in that court so i was only after we lost and he and we were forced to proceed  the circuit court that we found the counter claim and the second reason is it is the sort of the difference between an authentic than a defense of counter claim this court talked about this difference in the case of manning versus nickerson that was a case where the state sue as in your hypothetical or and in your question the state sued and the defendant who was the state's neighbor and disputed who where the property line should be filed counterclaims against the state as some of those counter claims were what they were he said the state owes me damages for being on my property other of the counter claims were what the state what the court called property claims where he just mirrored the state's complaint the state said you know we want the property line here we want him a big did and he said in his counter claim i account a claim that just mirrored the complaint itself is in response to your earlier question i said we were just trying to sort of tie up the bundle all in one place and resolve all of the issues that were raised by the complaint had the state gone on the  that and thirdly my third answer your question would be just to take a step back to what justice thomas said earlier which is that there was no jurisdiction over this complaint from the outset from the beginning and though we were forced to litigate it because the circuit court of erroneous l honor it is different and the difference is the state is the plate if and is and is voluntarily bring itself into court as opposed to being the defendant and simply defending itself or resolving the issues that are raised by the plaintiffs and that's the key difference and that inherent in the immunity act which prevents the state from being a defendant in any case but doesn't prevent the state from being a plaintiff now there's also  there's also question now i also wanted to mention that the appellate court's tissue decision if it did all if it was allowed to stand it would be somewhat detrimental to the state's ability to litigate cases i mean there are consequences to to the state having to sort of live with the law the third district articulated it and that's because they didn't just rely on the counter claim they relied on the motion for summary judgment and the failure to seek it interlocutory appeal and so that creates the kind of incentive that justice freiman was was discussing earlier where every time litigation and if i were merely the defense relied on it the preservation relied on it there would be strong incentives not to litigate cases that way and that would i think hamstring us in a lot of ways so so i mean that's probably  to appeal here to to clarify that question as to the state's conduct and whether or not it could confer jurisdiction because the opposite conclusion it's somewhat worrisome there's also an underlying question about whether or not the circuit court got it wrong when they denied our motion to dismiss based on sovereign immunity you know i'm sorry we relied puts me on the plain language of the immunity act in our motion to dismiss in an appeal which is to say that the state cannot be made a party or defend in any court we relied on sassy kramer which is a quite tight election this court has said savage immunity depends on the issues raised and the relief sought in sas he kramer the issue raised was quite title the relief sought was undisputed title the court found that it belonged in the court of claims the facts and circumstances are identical here so it seems like we believe that our motion dismissed was well taken let me get back to your filing the by filing the counter right said correct so even if you won you could win well actually the truth i think they would be precluded from from appealing an order that was not adverse to them i think i think that's why they would be unable to appeal it i think the premise of your question is correct that that jurisdiction it goes to the power of the court and if the court doesn't have jurisdiction it doesn't have jurisdiction so that is correct but if they as the plaintiffs had thought our motion to dismiss and won on that issue and the court had had to determine that it had jurisdiction i think that there's a pretty well settled law that that a party cannot appeal a judgment or an order that is not adverse to it so i think you would have to look at some other procedural  never raised it then then this is what the federal courts have determined right the federal courts have determined that a state can waive its immunity in federal court and the reason they determine that is they didn't want the states holding back their immunity fence waiting until things were going badly in the trial courts and then throwing immunity up there and saying oh we shouldn't be here in the first place so but we didn't do that so even in the federal courts we raise them you need to fence at the outset in a motion to dismiss we did not try to hide the ball we wanted to be out of the circuit court there's no dispute about that when we were told we couldn't get out of the circuit court then we did what i think any litigate would do any any any reasonable lawyer would do which is to say try to win the case but preserve its defenses so we did not try to game the system we didn't attempt to game the system we raised the media the defense the jurisdiction with as we raise again on appeal and now we're here again pursuing that that the f s i would like you to reverse the appellate court's decision reversed the judgment of the circuit court and enter judgment in favor of the state dismissing the claim and then the township of you believe it so desires claims so they have to suffer losses there is the there is there would have to be some division of the of the lawsuit in some way if you're going to bring the state into the case and that is you know not not policy wise you know something that we look look to all the time but there countervailing policies that are implicated by the immunity act which says the state cannot be made a defendant in the circuit court and there's really no way to avoid the plain language of that statute which is ultimately constitutionally derived it's article thirteen section four where the constitution says that legislature shall to term and the immunity of the state they determine the state cannot be a party and a circuit courts and not withstanding that some piecemeal litigation could could result from this the immunity act it secondarily point out that it in a number of cases that hasn't been a problem as a practical matter for the most part these property disputes with the state have not involve multiple parties it does appear that it would be an issue in this particular case but as a policy matter it has not proved to be detrimental on anyway make i think i've covered everything if there are no further questions we ask the court to reverse and enter judgment for the state thank you thank you m time line and i think it answers were speaks to some of the issues already raised by the court's questions september sixteenth two thousand and three eight years ago a complaint filed by the township  motion to dismiss on immunity grounds that motion is denying they do not seek interlocutory appeal and i think that the states in order for this the court to to conclude that the state is correct on its arguments about interlocking t and what we don't know if the question would be certified by the trial court and would be taken by the appellate court but that's just the nature of the beast so to speak every litigant in the state of illinois is bound by or governed by rule three o from raising jurisdiction i think that subject matter jurisdiction can be raised even by the court at this point if it wanted to on its on its own i think we have to get beyond that and look to so the answer is  and years later i think three or four years later only then did it file its answer and i think the counterclaim is important because you know we have kind of a tricky procedural quagmire here that the court has identified obviously and that is the state of illinois could not obtain an affirmative judgment against the township of jubilee quieting title in its favor without going to the circuit court it has to it could defend against the township of jubilees case it could defeat the township of jubilees argument that quiet the title should be quieted in its favor but if the state is going to benefit from an infirmity of judgment and get the relief it sought in other words going on the offensive this case winds up in the circuit court anyway so i don't agree you know i think it's a fair question to say we to dismiss yeah in the court i mean that that to me seems somewhat important as well certainly so how how do we get around the proposition that  i think you can call it a stoppel you could call it preclusion i think you call it fairness the way we get around that is the state initiated an action in the procedural code in illinois identify you know it delineates between  counterclaim it says it's to be pled like a complainant says it's an action it's an action and then another section of the procedural code i think section six thirteen talks about the fences they're separate and so i think we get around the issue that that  initiated an action in the circuit court raising the quiet title issue and i think that gets around the issue that you're discussing it really is an independent action at that point and i think that's buttressed by the fact that there is no defense of answer on filed that point that only came that only came on january twenty ninth two thousand and eight when the stated filed its counter ok the state lost in the circuit court we all know that the never saying that they're bound by that but they wouldn't be bound by that if they were successful in arguing that you know it was a null and void judgment because without without subject matter jurisdiction so i don't see the race  argument up in the state as for my client my client wouldn't benefit from a decision in its favor in the circuit court of if it was null and void either but i think it gets back to the main defeat the state the townships claim by saying no you are not the proper title holder you can defeat that claim and then you're left standing where you are at the end of the day with that decision once you go on the off and once you say no we want title quieted in our favor then you're really back to man in vs nickerson where i mean of course no one would dispute that the state can file a quiet title action in the circuit courts and that's where we find ourselves at the end of the day it really doesn't y used against say well i would like to speak to the issue as to whether the trial court lacked it in the first place but let's assume that it did i think that that issue is off the table after the state files its counter claim and affirmatively seeks a quiet title judgment in its favor because if they were going to do that independently they would have to go to the circuit court so i would ask the court to say well that's a distinction without a jurisdiction question i think you have to get to get to the point where the state files its counter claim and that really initiates the action if you want to assume that the the  i would like to present to the court what i touched on in my brief before you do that was the only issue of jurisdiction there's two over the oriya county and whoever else unknown owners perhaps over those those so in this case that was an issue i think theoretically could you say it was an issue i mean it's a you know subdivision of government i think the same issues would be raised in the county at the county level i think the same issues could be raised  but they weren't in this case as for the issue as to whether the court possessed subject matter jurisdiction over the townships filing there there is a thread running a common thread running through the cases i cited hurted national bank flick v kramer and then other cases that have distinguished those cases  and that common thread has to do with that and i don't have my head in the sand here i understand that those two cases named as an officer of the state as opposed to the state of illinois directly i'm aware of that but there are comments in those cases talking about well is this an interest of the state and they talk about well it is in this case or it isn't in this case depending on whether there's a written record evidence in the chain of title you know written easements a quit claim deed on record in the county recorder of deeds office and so i would ask the court to consider that issue and affirming the appellate court because you know if you want to take if you want to take this to the logical conclusion or illogical conclusion you know the state of illinois has an interest in every piece of property in the state their non owner non record owner non record claimant potentially in every case under the concept of a state laws and it's the that's the state so you know you could say if you want to take it to pull to its ultimate conclusion that every quiet title action in the state of illinois needs to be filed in the court of claims because you are pursuing theoretically an inference that would be adverse to the state and i think that i think the court should avoid coming to that conclusion that it doesn't don't think that that would make good sense or good policy so i would ask the court to analyze that issue  the distinction between written written evidence of hydel versus not because i do think that those issues are raised in the the hurt national bank case and the flick free grammar case and i think the decisions in village of river woods written record title and in this case so bringing it back to this case the state has no no written evidence of being in the recorded chain of idol frankly and i was not the trial counsel in this case  only done the appellate stages but frankly probably the state of illinois was made a party defendant because this piece of property is adjacent to jubilee college state park which is the state has for historic site run by the state frank probably why the state with was brought in in the first place so so  will conclude my comments there i would just ask the court to consider the procedural history of this case and whether the counter claim filed by the state gets us to the same place that ultimately everyone would be at the end of the day  for and only when we were compelled to stay there did we then litigate it which i think is the proper approach when the when the court says it has jurisdiction over you is to litigate ok so so it's not that we're seeing a second bite at the apple it's that we think the first bite should have been in a court of claims and we believe it belongs there to start jurisdiction but a counter claim in a complaint are meaningfully different and the the primary difference is a counterclaim can only be filed by a defendant and a defendant in this case was the state and the state can't be made a defendant in the circuit court so we go back to this question that justice garmin raised earlier which is if there was no jurisdiction over that complaint how could the counter claim have created it and it can't because the defendant who filed a counterclaim was not properly in the court at the time so it could not invoke jurisdiction of the court by doing so and second although if the if the state wanted to sue the township of jubilee it would have to file a complaint it is important to note that the circuit court ruled on the plaintiff's complaint right now not just on our counter claim they actually granted affirmative relief to the plaintiff township of jubilees on their complaint for quite a title the one that we claimed there was no jurisdiction over so it isn't just our counter claim that is in this court is the judgment is is based on their original complaint over which there was no jurisdiction as to sort of the general principle that the state might have an interest in it all and there's really no legal support for that  claim a sheet rock really doesn't ashi to the state in illinois which is sheets to the county and there's really no i don't know there's no there's certainly no argument in the briefs that every quite title i claim has to name the state and it's certainly not the practice  in common throughout the state for that to happen so i'm just not i'm not sure that that the court could really rely on those straight comments during oral argument without any any law to back them up and finally i just wanted to make a brief comment on the the original question of whether or not the circuit court had subject matter jurisdiction over the claim mr cord just mentioned that sort of line of authority these comments in various cases about whether or not the state had written title acknowledged that there's another way of looking at those cases which is those are cases that are brought against an official of the state to enjoin illegal conduct under the traditional officer suit exception and i think all of those cases if you look at them  can be divided into that line was a claim to two enjoyed illegal conduct by an official of government in which case it can proceed in the circuit court or was it a claim that disputed proper title to let to land of the state in which case it should go to the court of claims and all the cases that fall on the land side go to the court of claims and this one is identical really to sassy kramer and all relevant respects and belongs in the court of claims did not name an official state government did not visors agenda number to form thank you