Rule 23 order filed	NO. 5-03-0025

July 22, 2004;

Motion to publish granted	IN THE

September 1, 2004.

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

_____________________________________________________________________

___

THOMAS R. PETERS and 			)  Appeal from the

S&M ENTERPRISES,				)  Circuit Court of

							)  St. Clair County.

	Plaintiffs-Appellants, 			)	

							)

v.							)  No.  02-MR-163

							)

BOARD OF TRUSTEES OF SOUTHERN	)

ILLINOIS UNIVERSITY,				)  Honorable

							)  Alexis D. Otis-Lewis,

	Defendant-Appellee.  			)  Judge, presiding.

_____________________________________________________________________

___

	JUSTICE MAAG delivered the opinion of the court:

	The plaintiffs, Thomas R. Peters and S&M Enterprises, filed a single-count complaint

in the circuit court of St. Clair County, Illinois, seeking administrative review of a decision of

the Board of Trustees of Southern Illinois University (the Board) that requires freshman

students who are single and under 21 years old and who are not living with a parent or legal

guardian to live in university-owned housing.  The Board filed a motion to transfer the action

to Jackson County, Illinois, on the ground that venue was not proper in St. Clair County.  The

circuit court granted the motion and ordered the action transferred to the circuit court in

Jackson County, Illinois.  On appeal, the plaintiffs claim that the circuit court's decision was

an abuse of discretion.

	Plaintiff S&M Enterprises (S&M) operates Stevenson Arms, a facility providing

housing for freshman students attending Southern Illinois University in Carbondale, Illinois. 

Plaintiff Thomas R. Peters, a St. Clair County resident, is S&M's attorney.  Peters has a limited power of attorney granted by S&M with respect to all transactions between Stevenson Arms

and Southern Illinois University's housing department (the housing department).  In the

academic years 1995-96 through 2001-02, the housing department classified Stevenson Arms

as an accepted living center for freshman students.  In order to be classified as an accepted

living center, a facility must apply for approval and meet specific criteria.

	In 2002, the Board made a policy decision that "all single freshman students under the

age of 21 not residing with their parents or legal guardians be required to live in university-

owned housing."  The prior policy required all freshmen and sophomores to live on campus or

in accepted off-campus housing.  The new policy was to go into effect at the start of the fall

semester of 2003.  In a letter dated July 11, 2002, the Board notified the plaintiffs of its

decision.  As a result of the Board's decision, the classification of accepted living center for

freshman students was eliminated and the privately owned Stevenson Arms could no longer

operate as an accepted freshman dormitory.

	On August 9, 2002, the plaintiffs filed a complaint in the circuit court of St. Clair

County and sought administrative review of the Board's decision, pursuant to section 3-101 et seq. of the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2000)).  In their complaint, the plaintiffs claimed that the Board's decision was invalid, improper, and/or

arbitrary and capricious and requested that the court enter an order striking the decision and

for other relief within the subject matter jurisdiction of the court.

	The Board filed a motion to transfer the case to Jackson County, Illinois.  The Board

alleged that venue was improper because no part of the transaction or occurrence had taken

place in St. Clair County and the Board's principal office was not in St. Clair County.  The

plaintiffs countered that venue was proper under section 2-103(a) of the Civil Practice Law

(735 ILCS 5/2-103(a) (West 2000)) because the subject matter of the decision involved and

affected students from St. Clair County seeking to attend the university for the fall semester of 2003 and because in prior years the applications seeking the classification of Stevenson

Arms as an approved freshman residence were executed in St. Clair County.

	The parties filed additional motions before the venue motion was heard.  The plaintiffs

filed a motion to amend the complaint to add counts for mandamus and certiorari.  The Board filed a motion to dismiss the complaint on the grounds that it failed to state a cause of action

and that the circuit court lacked subject matter jurisdiction of the action.  There is nothing in

the record indicating that the circuit court ruled on these motions.

	After considering oral and written arguments of the parties, the circuit court granted the

venue motion and ordered the case transferred to Jackson County, Illinois.  The court found

that the subject matter of the action was situated in Jackson County, that all the parts of the

transaction giving rise to the proceedings occurred in Jackson County, that the Board's

principal office was in Jackson County, and that all the records and evidence were located in

Jackson County.

	As noted in the fact summary, there is nothing in the record before us to indicate that

the circuit court ruled on the plaintiffs' motion to amend the complaint to add counts for

mandamus and certiorari.  Consequently, the only allegations at issue are those contained in the initial complaint, and we will consider the issues on appeal in light of those allegations. 

Despite the lack of a ruling on the Board's motion to dismiss for a lack of jurisdiction, we will

consider that issue because subject matter jurisdiction cannot be waived.  See Smith v. Jones, 113 Ill. 2d 126, 130, 497 N.E.2d 738, 740 (1986).

	Article XIII, section 4, of the Illinois Constitution abolished sovereign immunity,

"[e]xcept as the General Assembly may provide by law".  Ill. Const. 1970, art. XIII, §4.  In

accordance with that constitutional grant of authority, the legislature subsequently enacted the

State Lawsuit Immunity Act (Immunity Act) (Pub. Act 77-1776, §1, eff. January 1, 1972). 

Section 1 of the Immunity Act states that the State shall not be made a defendant or party in any court, except as provided in the Illinois Public Labor Relations Act (5 ILCS 315/1 et seq. (West 2000)), the Court of Claims Act (705 ILCS 505/1 et seq. (West  2000)), and the State Officials and Employees Ethics Act (Ethics Act) (5 ILCS 430/1-1 et seq. (West Supp. 2003)).  745 ILCS 5/1 (West Supp. 2003).  Given the facts in the record, the Illinois Public Labor

Relations Act and the Ethics Act are not implicated.  In this case, we must first determine

whether the Board is entitled to sovereign immunity and, if so, whether the Court of Claims

has exclusive jurisdiction of the pending action pursuant to the Immunity Act.  See Ellis v. Board of Governors of State Colleges & Universities, 102 Ill. 2d 387, 391, 466 N.E.2d 202, 204 (1984).

	Generally, a state agency may not be a defendant in circuit court actions because state

agencies are considered to be arms of the State.  See Williams v. Medical Center Comm'n, 60 Ill. 2d 389, 393-94, 328 N.E.2d 1, 3 (1975).  There are numerous decisions finding that a state

university and its board of trustees are arms of the State.  See, e.g., Williams, 60 Ill. 2d at 393- 94, 328 N.E.2d at 3; Ellis, 102 Ill. 2d at 393, 466 N.E.2d at 205-06; Hoffman v. Yack, 57 Ill. App. 3d 744, 747, 373 N.E.2d 486, 489 (1978).  In this case, there appears to be no dispute

regarding the status of the Board as an arm of the State, and so an extended discussion is

unwarranted.  Based on the record, the provisions in the Southern Illinois University

Management Act (110 ILCS 520/0.01 et seq. (West 2000)), and the aforementioned case law, we conclude that the Board is an arm of the State for purposes of sovereign immunity.

	The next question is whether the cause of action lies within the exclusive jurisdiction

of the Court of Claims.  Ellis, 102 Ill. 2d at 394, 466 N.E.2d at 206.  Whether an action against the State is within the exclusive jurisdiction of the Court of Claims depends on the issues

involved and the type of relief sought.  See Ellis, 102 Ill. 2d at 394, 466 N.E.2d at 206. 	Section 8(a) of the the Court of Claims Act states that the Court of Claims shall have

exclusive jurisdiction to hear and determine "[a]ll claims against the State founded upon any law of the State of Illinois or upon any regulation adopted thereunder by an executive or

administrative officer or agency; provided, however, the court shall not have jurisdiction ***

(ii) to review administrative decisions for which a statute provides that review shall be in the

circuit court or appellate court".  705 ILCS 505/8(a)(ii) (West 2000).

	In their complaint, the plaintiffs requested administrative review of the Board's decision

under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2000)).  Pursuant to section 3-102 of the Administrative Review Law, judicial review of a final decision of any

administrative agency is applicable only where it is expressly adopted by the statute creating

or conferring power on the agency involved.  735 ILCS 5/3-102 (West 2000); Maas v. Board of Trustees of Community College District No. 529, 94 Ill. App. 3d 562, 572, 418 N.E.2d 1029, 1037 (1981).  The statutes creating and governing the operations of Southern Illinois

University and its board of trustees do not expressly adopt the provisions of the Administrative

Review Law.  See 110 ILCS 520/0.01 et seq. (West 2002).  Therefore, the decision of the Board is not subject to review under the Administrative Review Law.

	The plaintiffs have not pointed to any other statute or rule that provides that review of

the Board's decisions shall be in the circuit court or appellate court.  In the absence of that

authority, section 8(a)(ii) gives the Court of Claims exclusive jurisdiction to review the

Board's decision.  705 ILCS 505/8(a)(ii) (West 2000).  Consequently, the circuit court did not

have subject matter jurisdiction to order this case transferred to the circuit court in Jackson

County, Illinois, and we hereby vacate that order.  Likewise, the circuit court lacked

jurisdiction to transfer the case to the Court of Claims.  Without jurisdiction, the circuit court

could only dismiss the action.  Because the jurisdictional issue is dispositive, we will not

consider the other issues raised on appeal.

	Accordingly, the decision of the circuit court is vacated.  Pursuant to our authority

under Supreme Court Rule 366 (155 Ill. 2d R. 366), we hereby dismiss this case for lack of subject matter jurisdiction.

	Vacated; judgment of dismissal entered.  

	HOPKINS and WELCH, JJ., concur.

                                     	NO. 5-03-0025

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

_______________________________________________________________________________ ____

THOMAS R. PETERS and 			)  Appeal from the

S&M ENTERPRISES,				)  Circuit Court of

							)  St. Clair County.

	Plaintiffs-Appellants, 			)	

							)

v.							)  No.  02-MR-163

							)

BOARD OF TRUSTEES OF SOUTHERN	)

ILLINOIS UNIVERSITY,				)  Honorable

							)  Alexis D. Otis-Lewis,

	Defendant-Appellee.  			)  Judge, presiding.

_______________________________________________________________________________ ____

Rule 23 Order Filed:			July 22, 2004

Motion to Publish Granted:		September 1, 2004

Opinion Filed:				September 1, 2004

_______________________________________________________________________________ ____

Justices:	Honorable Gordon E. Maag, J.

	Honorable Terrence J. Hopkins, J., and

	Honorable Thomas M. Welch, J.,

	Concur

_______________________________________________________________________________ ____

Attorney	Thomas R. Peters, Gundlach, Lee, Eggmann, Boyle & Roessler, 5000 West Main

for	Street, P.O. Box 23560, Belleville, IL 62226-0560

Appellants	

_______________________________________________________________________________ ____

Attorneys	Michael F. Dahlen, Feirich, Mager, Green, Ryan, 2001 West Main Street, P.O. Box

for	1570, Carbondale, IL 62903-1570; Shari R. Rhode, Office of University Legal

Appellee	Counsel, 318 Anthony Hall, Southern Illinois University, Carbondale, IL 62901

_______________________________________________________________________________ ____