1

NOTICE

Decision filed 05/19/10. The text of

this decision may be changed or

corrected prior to the filing of a

Peti tion for Rehearing or the

disposition of the same.

NO. 5-08-0179

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

________________________________________________________________________

LAMONTE LAKE, ) Appeal from the

) Circuit Court of

Plaintiff-Appellant, ) Clinton County.

)

v. ) No. 08-MR-15

)

THE STATE OF ILLINOIS, ) Honorable 

) Dennis E. Middendorff,

Defendant-Appellee. ) Judge, presiding.

___________________________________________________________________________

JUSTICE SPOMER delivered the opinion of the court:

The plaintiff, an inmate at Centralia Correctional Center, appeals from the March 20,

2008, order of the circuit court of Clinton County dismissing his petition for common-law

certiorari relief from a Court of Claims order dismissing his medical malpractice claim

against the State and the Illinois Department of Corrections (Department). The plaintiff

seeks the reversal of the circuit court's dismissal of his petition. For the following reasons,

we reverse the judgment of the circuit court and remand with directions.

BACKGROUND

On March 18, 2008, the plaintiff filed pro se in the circuit court of Clinton County

a petition for common-law certiorari relief, seeking review of the Court of Claims' dismissal

of his medical malpractice claim against the State and the Department. The petition was

titled "common-law petition" and requested that the circuit court "order a summons to issue

in due form, directed to the Court of Claims to certify and bring the record of the

proceedings of the Court of Claims before this court, and that [the Court of Claims'] order

may be reversed and set aside." 
2

The plaintiff's petition alleged that by dismissing his claim for his failure to attach a

physician's affidavit of merit and written report, as required by section 2–622 of the Code

of Civil Procedure (735 ILCS 5/2–622 (West 2004)), also known as the Healing Arts

Malpractice Act, the Court of Claims "failed to protect [his] rights to a trial on the merits of

his case" and thereby violated his right to due process. The circuit court did not hold a

hearing on the petition and did not review the record of the underlying proceedings in the

Court of Claims. On March 20, 2008, the circuit court dismissed sua sponte the plaintiff's

petition, finding that it did not have jurisdiction over the petition and that "the relief sought

can only be granted by an Appellate Court."

The plaintiff timely filed a notice of appeal on April 8, 2008. The plaintiff filed his

appellant's brief on September 16, 2008, but the brief was defective, and on August 21, 2009,

he was granted 21 days to show cause why it should not be stricken for its failure to comply

with Supreme Court Rule 341 (210 Ill. 2d R. 341). On September 9 and December 7 the

plaintiff filed motions for extensions of time in which to file an amended brief, both of which

were granted. 

The plaintiff filed his amended brief on January 19, 2010, to which he attached, inter

alia, a purported copy of the Court of Claims order that disposed of his claim. This order

was neither admitted into evidence nor considered by the circuit court, and there is nothing

properly within the record on appeal that confirms the plaintiff's recounting of the

proceedings in the Court of Claims. The State has not filed an answer brief, contending that

it is not properly a party to the appeal because the circuit court dismissed the plaintiff's

petition prior to service being made on any State entity. 

STANDARD OF REVIEW

Whether the circuit court properly exercised subject-matter jurisdiction is a question

of law that we review de novo. In re John C.M., 382 Ill. App. 3d 553, 904 N.E.2d 50 (2008).
3

DISCUSSION

Initially, we note that because the record of the underlying proceedings in the Court

of Claims is dehors the record on appeal, we cannot consider its contents in making our

decision. Reviewing courts must determine the issues before them on appeal solely on the

basis of the record made in the trial court. People v. Heaton, 266 Ill. App. 3d 469, 640

N.E.2d 630 (1994). "[E]vidence which is not part of the record on appeal is not to be

considered by a reviewing court [citation], and attachments to briefs on appeal, not otherwise

before the reviewing court, cannot be used to supplement the record." Heaton, 266 Ill. App.

3d at 476, 640 N.E.2d at 635.

The Court of Claims Act (Act) (705 ILCS 505/1 et seq. (West 2006)) created an

exception to the doctrine of sovereign immunity by allowing parties to bring monetary claims

against the State in the Court of Claims. It is the legislature's responsibility to establish the

conditions upon which suits against the State may be brought, and the General Assembly has

determined that the Court of Claims has exclusive subject-matter jurisdiction over monetary

claims against the State. Hyde Park Medical Laboratory, Inc. v. Court of Claims, 259 Ill.

App. 3d 889, 893, 632 N.E.2d 307, 310 (1994). 

The Act does not provide for any method for the review of decisions of the Court of

Claims, and because the Court of Claims is not a "court" within the meaning of article VI of

the Illinois Constitution of 1970 (Ill. Const. 1970, art. VI), its decisions are generally not

subject to judicial review. Klopfer v. Court of Claims, 286 Ill. App. 3d 499, 502, 676 N.E.2d

679, 682 (1997). A narrow exception to this rule exists, though, in circumstances where a

party alleges that the Court of Claims acted in a manner which deprived him of his

constitutional right to due process. Reichert v. Court of Claims, 203 Ill. 2d 257, 261, 786

N.E.2d 174, 177 (2003).

The common-law writ of certiorari provides a means whereby a party who has no
4

avenue of appeal or direct review may obtain limited review over actions by a court or other

tribunal exercising quasi-judicial functions, unless the statute under which the body

proceeded specifically denies review. Reichert, 203 Ill. 2d at 260, 786 N.E.2d at 177. The

Illinois Supreme Court, in Rossetti Contracting Co. v. Court of Claims, 109 Ill. 2d 72, 79,

485 N.E.2d 332, 334-35 (1985), determined that because the Act neither expressly denies

nor expressly provides for the review of actions of the Court of Claims, a petition for a writ

of certiorari can be filed in the circuit court by a party alleging a violation of his due process

rights. The scope of review for a petition for certiorari relief from a decision of the Court

of Claims is quite narrow. The circuit court has subject-matter jurisdiction to determine

whether the petitioner was afforded his due process rights, but it may not review the

correctness of a decision based upon the merits of the case before the Court of Claims.

Reichert, 203 Ill. 2d at 260-61, 786 N.E.2d at 177. 

The Illinois Supreme Court has further held that a party's due process rights are

satisfied by the proceedings in the Court of Claims when an orderly proceeding is held and

the party is provided with notice and the opportunity to be heard at a meaningful time and

in a meaningful manner. Reichert, 203 Ill. 2d at 261, 786 N.E.2d at 177. Due process is not

abridged where the Court of Claims merely misconstrues the law or otherwise commits an

error for which its judgment should be reversed. Reichert, 203 Ill. 2d at 261, 786 N.E.2d at

177. 

The purpose of a writ of certiorari is to have the entire record of the inferior tribunal

brought before the circuit court to determine, from that record alone, if the former proceeded

according to the applicable law. Stratton v. Wenona Community Unit District No. 1, 133 Ill.

2d 413, 427, 551 N.E.2d 640, 645 (1990). There is no absolute right to review by certiorari,

and the issuance of a writ of certiorari is within the sound discretion of the circuit court.

Stratton, 133 Ill. 2d at 428, 551 N.E.2d at 646. A petition for certiorari relief is properly
5

denied if the court finds that the plaintiff cannot prevail or that he is not entitled to the review

he seeks. Tanner v. Court of Claims, 256 Ill. App. 3d 1089, 629 N.E.2d 696 (1994).

In issuing a common-law writ of certiorari, the circuit court is commanding the

inferior tribunal to certify and return the record of the proceedings at issue to the circuit

court. Comrs. of Mason & Tazewell Special Drainage District v. Griffin, 134 Ill. 330, 25

N.E. 995 (1890). After issuing the writ, the circuit court has two options upon the return of

the record of the proceedings. If the circuit court finds from an examination of the record

that the proceedings in the inferior tribunal satisfied the petitioner's due process rights, the

petition for a writ of certiorari is dismissed and the writ is quashed. Tanner, 256 Ill. App.

3d at 1091, 629 N.E.2d at 698. If, on the other hand, the court finds that the proceedings

violated the petitioner's due process rights, the judgment and proceedings shown by the

record of the inferior tribunal are quashed. Stratton, 133 Ill. 2d at 427, 551 N.E.2d at 645.

Regardless of whether the circuit court quashes the writ and dismisses the petition or

quashes the underlying judgment and proceedings, it does not have jurisdiction to reweigh

the evidence heard by the Court of Claims or to order the Court of Claims to grant any

specific relief to the plaintiff. Bernero v. Retirement Board of the Firemen's Annuity &

Benefit Fund of the City of Chicago, 297 Ill. App. 28, 36-37, 17 N.E.2d 75, 79 (1938). If the

circuit court quashes the writ of certiorari, it does not render a new judgment but rather

issues a writ of procedendo, which serves as a notification to the inferior tribunal that the

writ of certiorari has been quashed and that the status quo will be preserved. Chicago &

Rock Island R.R. Co. v. Fell, 22 Ill. 333 (1859); Wolfinbarger v. County Court of Williamson

County, 323 Ill. App. 436, 55 N.E.2d 880 (1944) (abstract of op.). 

If the circuit court instead quashes the proceedings and judgment of the Court of

Claims, its quashal order is self-executing and "requires no process of any kind to enforce

it." People ex rel. Barry v. Gregory, 324 Ill. App. 614, 620, 59 N.E.2d 106, 108 (1944). If
6

the judgment and proceedings of the Court of Claims are quashed, the plaintiff is free to

refile his claim. See, e.g., Bernero, 297 Ill. App. at 36-37, 17 N.E.2d at 79 (stating that if

on remand the circuit court quashed the underlying proceedings of the Retirement Board of

the Firemen's Annuity and Benefit Fund of the City of Chicago, the plaintiff would be "in

a position to again present her application" for benefits). 

The Illinois Appellate Court, Fourth District, in Tanner, reversed the circuit court's

dismissal of a petition for certiorari relief because the circuit court had not examined the

record of proceedings from the Court of Claims prior to dismissing the plaintiff's petition.

Tanner, 256 Ill. App. 3d at 1092-93, 629 N.E.2d at 699. The Tanner court stated, "[T]he

record from the inferior tribunal must normally be made a part of the trial court record for

the court to review." Tanner, 256 Ill. App. 3d at 1092, 629 N.E.2d at 699. The court

acknowledged that the decision to issue a writ of certiorari is within the discretion of the

circuit court and that "there may be instances when the writ is properly denied if, as a matter

of law, the court is able to determine plaintiff cannot prevail or he is not entitled to the

review he seeks." Tanner, 256 Ill. App. 3d at 1092, 629 N.E.2d at 699. But the court found

that under the facts with which it was confronted, the circuit court improperly dismissed the

petition for certiorari without first examining the record of proceedings in the Court of

Claims. Tanner, 256 Ill. App. 3d at 1092-93, 629 N.E.2d at 699. 

"Whether plaintiff was subject to a deprivation of due process *** is not susceptible

of resolution without an examination of the underlying record before the Court of Claims."

Tanner, 256 Ill. App. 3d at 1092, 629 N.E.2d at 699. Because the circuit court failed to

examine the record of proceedings from the Court of Claims, the Tanner court remanded the

case, directing the circuit court to issue the writ of certiorari and, upon the return of the

record of proceedings, determine whether the due process violations alleged by the petitioner

were supported by the record. Tanner, 256 Ill. App. 3d at 1093, 629 N.E.2d at 699.
7

In the case at bar, the circuit court sua sponte dismissed the plaintiff's petition for

certiorari without having first examined the record of the underlying proceedings in the

Court of Claims, finding that it lacked jurisdiction over the petition. As discussed above,

though, subject-matter jurisdiction over petitions for certiorari relief from decisions of the

Court of Claims does lie with the circuit court. The plaintiff alleged in his petition that the

Court of Claims, inter alia, "failed to protect [his] rights to a trial on the merits" and thereby

violated his due process right to be heard on his claim. An examination of the record of

proceedings in the Court of Claims was therefore a condition precedent to the circuit court's

dismissal of the petition because the circuit court could not, solely from the face of the

petition, determine as a matter of law whether the plaintiff's due process rights were in fact

violated. The case therefore must be remanded to the circuit court with directions that it

issue the writ and upon the return of the record of proceedings from the Court of Claims

determine on the basis of that record whether the plaintiff's due process rights were violated.

CONCLUSION

Because the circuit court did not examine the record of the proceedings prior to

dismissing the plaintiff's petition–instead erroneously holding that it lacked subject-matter

jurisdiction over the petition–it was impossible for it to determine whether the plaintiff's due

process rights were violated by the underlying proceedings in the Court of Claims. The

circuit court therefore must make that determination on the basis of the record of proceedings

in the Court of Claims.

For the foregoing reasons, the judgment of the circuit court of Clinton County is

hereby reversed. The circuit court is directed to issue a writ of certiorari to the Court of

Claims, commanding it to certify and transmit the entire record of the proceedings involving

the plaintiff's claim to the circuit court. The circuit court must then determine solely on the

basis of that record whether the plaintiff was afforded his due process rights. 
8

If the circuit court finds that the plaintiff's due process rights were satisfied by the

proceedings in the Court of Claims, it shall quash the writ of certiorari and dismiss the

plaintiff's petition. If, however, it finds that the plaintiff's due process rights were violated,

it shall grant the writ of certiorari and quash the proceedings and judgment of the Court of

Claims.

Reversed; cause remanded with directions.

DONOVAN and WEXSTTEN, JJ., concur.
NO. 5-08-0179

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

___________________________________________________________________________________

LAMONTE LAKE, ) Appeal from the

) Circuit Court of

Plaintiff-Appellant, ) Clinton County.

)

v. ) No. 08-MR-15

)

THE STATE OF ILLINOIS, ) Honorable 

) Dennis E. Middendorff,

Defendant-Appellee. ) Judge, presiding.

___________________________________________________________________________________

Opinion Filed: May 19, 2010

___________________________________________________________________________________

Justices: Honorable Stephen L. Spomer, J., with 

Honorable James K. Donovan, J., and

Honorable James M. Wexstten, J., 

Concurring. 

___________________________________________________________________________________

Attorney Lamonte Lake, pro se, Reg. No. B79261, Centralia Correctional Center, 

for P.O. Box 7711, Centralia, IL 62801

Appellant

___________________________________________________________________________________

Attorney [The State has not filed an answer brief, contending that it is not properly a party to

for the appeal because the circuit court dismissed the plaintiff's petition prior to service

Appellee being made on any State entity.]

___________________________________________________________________________________