Klopfer v. Court of Claims

                                                  FIFTH DIVISION
                                                  FILED: 1/31/97












No.  1-95-4095

DR. ULRICH KLOPFER,                     )    APPEAL FROM THE
                                        )    CIRCUIT COURT OF
          Plaintiff-Appellant,          )    COOK COUNTY
                                        )
                    v.                  )
                                        )
COURT OF CLAIMS, STATE OF ILLINOIS; and )
ROGER A. SOMMER, Chief Justice of the   )
Court of Claims, LEO F. POCH, Judge,    )
RANDY PATCHETT, Judge, RICHARD T.       )
MITCHELL, Judge, NORMA JANN, Judge,     )
ANNE BURKE, Judge, named as Nominal     )
Parties,                                )
                                        )
          Defendants-Appellees,         )
                                        )
                   and                  )
                                        )   
THE ILLINOIS DEPARTMENT OF PUBLIC AID,  )    HONORABLE
                                        )    DOROTHY KINNAIRD,
          Defendant.                    )    JUDGE PRESIDING.


     JUSTICE HOFFMAN delivered the opinion of the court:
     The plaintiff, Dr. Ulrich Klopfer, filed a petition for a writ
of certiorari in the circuit court of Cook County seeking review of
a decision of the Illinois Court of Claims (Court of Claims).  The
circuit court dismissed the petition and the plaintiff filed the
instant appeal.  We affirm.
     The plaintiff filed a complaint in the Court of Claims on
January 16, 1981, against the Illinois Department of Public Aid
(Department), seeking payment for 931 abortions that he performed 
on public aid recipients between June 1978 and February 1979.  An
evidentiary hearing was held before a commissioner of the Court of
Claims commencing August 1, 1983, and concluding with the closing
of proofs on January 5, 1984.  Thereafter, the parties submitted
written briefs to the Court of Claims in support of their
respective positions.  
     The Court of Claims issued an opinion on August 1, 1990,
denying the plaintiff's claim based, in part, upon its finding that
his claim was untimely.  On August 13, 1990, the plaintiff filed a
petition for rehearing contending, inter alia, that the statutory
limitations period had been waived because of the Department's
failure to raise the issue by means of an affirmative defense or a
written motion, and that he had been denied a fair opportunity to
address the question.  The Court of Claims denied the petition in
an opinion dated September 29, 1993, holding, in relevant part,
that the limitations issue had been sufficiently raised during the
proceedings, and, since compliance with the applicable limitation
is jurisdictional, the Court of Claims could dismiss the
plaintiff's untimely claim on its own motion.    
     The plaintiff filed a petition for a writ of certiorari in the
circuit court against the Court of Claims, its judges, and the
Department, claiming:
          "That the Court of Claims and judges thereof, in
     direct violation of United States Constitutional Law,
     Illinois Constitutional Law, Illinois Statutory Law, and
     Common Law, suspended and refused to follow Con-
     stitutionally required Procedural Due Process in the
     Proceedings of [the] Court of Claims regarding the
     Plaintiff's case; denying the Plaintiff property without
     Due Process of Law; denying the Plaintiff a fundamentally
     fair trial; and denying the Plaintiff Procedural Due
     Process required by the Illinois Constitution, Illinois
     Statutory Law, and Rules of Procedure of the Court of
     Claims." 
     The Department filed a special appearance pursuant to section 2-301
of the Code of Civil Procedure (Code) (735 ILCS 5/2-301 (West
1994)), contending that it 1) had not been properly served with
summons, and 2) was not a proper party defendant in any action
brought in the circuit court (see Smith v. Jones, 113 Ill. 2d 126,
497 N.E.2d 738 (1986)).  The trial court dismissed the Department
from the action, an order which the plaintiff has not appealed. 
The Court of Claims and its judges moved for dismissal pursuant to
section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West
1994)), arguing that the Court of Claims correctly dismissed the
plaintiff's claim on jurisdictional grounds.  The circuit court
granted the defendants' section 2-619 motion, and it is from that
order that the plaintiff has appealed. 
     We must commence our analysis with an acknowledgement that
decisions of the Court of Claims are generally not subject to
judicial review.  A narrow exception to this rule exists in
circumstances where the Court of Claims acts in a manner which
deprives a party of the constitutional right to due process.  Hyde
Park Medical Laboratory, Inc. v. Court of Claims, 259 Ill. App. 3d
889, 632 N.E.2d 307 (1994).  Because no other mode of appeal or
review of the actions of the Court of Claims has been provided by
statute, a common law writ of certiorari may be available to compel
the Court of Claims to afford a party an opportunity to be heard at
a meaningful time and in a meaningful manner.  Rossetti Contracting
Co. v. Court of Claims, 109 Ill. 2d 72, 485 N.E.2d 332 (1985). 
Such a writ is not available, however, to review the correctness of
any decision of the Court of Claims based upon the merits of the
case before it.  Rossetti, 109 Ill. 2d  at 80.  Consequently, we
will consider only those issues raised by the plaintiff which
address the due process afforded him before the Court of Claims and
the propriety of the trial court having disposed of this action
pursuant to a section 2-619 motion.  For jurisdictional reasons, we
must decline to consider any issue raised by the plaintiff going to
the correctness of the factual findings of the Court of Claims
which underlie its decision to dismiss the plaintiff's claim
against the Department.
     The plaintiff argues in his brief before this court, as he did
before the circuit court, that in addressing the limitations issue
without the question ever having been raised in any written motion
or affirmative defense filed by the Department, the Court of Claims
violated the Code and its own rules of procedure; and, in so doing,
denied him both substantive and procedural due process.  We
believe, however, that the plaintiff's contentions in this regard
exhibit a misunderstanding of the subject matter jurisdiction
conferred upon the Court of Claims by statute and, more
fundamentally, the distinction between general statutes of
limitation and statutes which both confer jurisdiction and fix the
time within which such jurisdiction may be exercised.
     The plaintiff's underlying claim against the Department was
predicated upon his alleged performance of medical procedures upon
authorized Medicaid recipients which, according to the plaintiff's
complaint before the Court of Claims, were rendered as a provider
of medical services under the Department's rules and regulations. 
Consequently, there is no dispute that the claim fell within the
exclusive jurisdiction of the Court of Claims.  
     Although Article XIII, Section 4 of the Illinois Constitution
of 1970 abolished sovereign immunity, the General Assembly was
empowered to restore it.  Ill. Const. 1970, art. XIII, sec. 4.  In
1971, acting pursuant to that constitutional grant of authority,
the legislature enacted the State Lawsuit Immunity Act which states
that, "except as provided in 'AN ACT to create the Court of Claims
***', the State shall not be made a defendant or party in any
court."  Ill. Rev Stat. 1971, ch. 127, par. 801.  The Court of
Claims Act (Act) (Ill. Rev. Stat. 1977, ch. 37, par. 439.1 et seq.)
provides that the Court of Claims "shall have exclusive juris-
diction to hear and determine *** [a]ll claims against the State
founded upon any law of the State of Illinois, or upon any
regulation thereunder by an executive or administrative officer or
agency" of the State (Ill. Rev. Stat. 1977, ch. 37, par. 439.8(a))
and "[a]ll claims against the State founded upon any contract
entered into with the State of Illinois" (Ill. Rev. Stat. 1977, ch.
37, par. 439.8(b)). 
     In addition to vesting the Court of Claims with exclusive
jurisdiction to hear and determine the plaintiff's underlying claim
against the Department, the Act also fixed the time within which
the claim had to be brought.  Specifically, section 22(b) of the
Act provides that:
          "All claims cognizable against the State by vendors
     of goods or services under the 'Illinois Public Aid
     Code', approved April 11, 1967, as amended, must be filed
     within one year after the accrual of the cause of action,
     as provided in Section 11-13 of that Code." 
     Ill. Rev. Stat. 1977, ch. 37, par. 439.22(b).
     Section 11-13 of Illinois Public Aid Code states that actions
against the Department for services furnished to recipients do not
accrue "until the vendor has been notified in writing that the
claim or part thereof is disallowed or disapproved."  Ill. Rev.
Stat. 1977, ch. 23, par. 11-13.  In this case, the Court of Claims,
both in its original opinion and in its opinion denying a
rehearing, found that the plaintiff's claim was untimely because it
was filed more than one year after the Department's written
notification of disallowance.  
     In Fredman Brothers Furniture Co. v. Department of Revenue,
109 Ill. 2d 202, 486 N.E.2d 893 (1985), our Supreme Court artic-
ulated the significance of statutes which both create rights and
fix the time within which an action to enforce those rights can be
brought, and the distinction between these statutes and general
statutes of limitation.  The Fredman Court held that:
     "Statutes of limitation only fix the time within which
     the remedy for a particular wrong may be sought. [Cita-
     tion.]  They 'are procedural in nature [citations] and
     are not designed to alter substantive rights ***.'
     [Citation.]
          On the other hand, 'statutes which create a
     substantive right unknown to the common law and in which
     time is made an inherent element of the right so created,
     are not statutes of limitation .' [Citation.]  Such a
     time period 'is more than an ordinary statute of
     limitations' [citation]; it 'is a condition of the ***
     liability itself and not of the remedy, alone.  *** It
     goes to the existence of the right itself.' [Citation.] 
     Such a provision is a condition precedent to the
     plaintiff's right to seek a remedy.  [Citations.]  Such
     statutes set forth the requirements for bringing the
     right to seek a remedy into existence.  They do not speak
     of commencing an action after the right to do so has
     accrued.  They are jurisdictional, not mandatory." 
     Fredman, 109 Ill. 2d  at 209-10.              
          As such, compliance with the one-year time limitation
contained in the Act was a jurisdictional prerequisite to the
plaintiff's right to bring his action before the Court of Claims. 
See Robinson v. Human Rights Commission, 201 Ill. App. 3d 722, 559 N.E.2d 229 (1990).
     The Court of Claims is not a "court" within the meaning of
article VI of the Illinois Constitution of 1970.  Rossetti, 109 Ill. 2d 72.  It is a tribunal much akin to a court of limited
jurisdiction.  Being a purely statutory creation possessing no
inherent or common law power, the Court of Claims can only assume
jurisdiction in conformity with the statute which empowers it.  See
Robinson, 201 Ill. App. 3d at 728.  Subject matter jurisdiction
includes both the power to hear and determine a class of cases and
the power to grant the particular relief requested.  People ex rel.
Illinois Department of Human Rights v. Arlington Park Race Track
Corp., 122 Ill. App. 3d 517, 461 N.E.2d 505 (1984).  Defects in
subject matter jurisdiction cannot be waived (Glasco Electric Co.
v. Department of Revenue, 86 Ill. 2d 346, 427 N.E.2d 90 (1981);
People ex rel. Compagnie Nationale Air France v. Giliberto, 74 Ill. 2d 90, 383 N.E.2d 977 (1978)), and the parties to an action cannot
confer such jurisdiction by their acquiescence or consent (City of
Chicago v. Shayne, 27 Ill. 2d 414, 189 N.E.2d 324 (1963)). 
Consequently, the failure to raise the statutory limitation period
as an affirmative defense to an action before the Court of Claims
cannot result in a waiver of the issue vesting the Court of Claims
with subject matter jurisdiction.  
     The lack of subject matter jurisdiction is such a fundamental
defect that it may be raised at any time (Michelson v. Industrial
Commission, 375 Ill. 462, 31 N.E.2d 940 (1941)), and by any means,
even the court's own motion (see Ferguson v. Riverside Medical
Center, 111 Ill. 2d 436, 490 N.E.2d 1252 (1985); Archer Daniels
Midland Co. v. Barth, 103 Ill. 2d 536, 470 N.E.2d 290 (1984)).  Not
only does a tribunal have the right to examine its jurisdiction on
its own initiative, it has an affirmative obligation to do so (see
In re Marriage of Betts, 159 Ill. App. 3d 327, 511 N.E.2d 732
(1987); Rothert v. Rothert, 109 Ill. App. 3d 911, 441 N.E.2d 179
(1982); E.M. Melahn Construction Co. v. Village of Carpentersville,
100 Ill. App. 3d 544, 427 N.E.2d 181 (1981)), as every act of a
tribunal beyond its jurisdiction is void (People ex rel. Brzica v.
Village of Lake Barrington, 268 Ill. App. 3d 420, 644 N.E.2d 66
(1994)).              
     We reject the plaintiff's contentions that he was denied a
meaningful opportunity to address the limitations issue before the
Court of Claims, and that his rights to substantive and procedural
due process were violated when the Court of Claims denied his claim
as untimely in the absence of any pleading placing the statutory
limitation period in issue.
     As a factual matter, the record before us reveals that
evidence was introduced before the commissioner going to the date
upon which the Department disallowed the plaintiff's claims for
payment.  The commissioner went so far as to advise the parties
that the question of whether the plaintiff filed his claim timely
was an issue in the case.  Additionally, the Court of Claims
afforded the plaintiff an opportunity to submit a supplemental
brief in support of his petition for rehearing specifically
addressing the limitations issue.  These facts notwithstanding,
compliance with the statutory limitation period was always an issue
in the plaintiff's action before the Court of Claims.
     When, as in this case, a special statute of limitations is
applicable to a statutory right of action, the plaintiff bears the
burden to plead and prove that the action was brought within the
time prescribed.  Demchuk v. Duplancich, 92 Ill. 2d 1, 440 N.E.2d 112 (1982).  Compliance with such a limitation is a condition of
liability (Fredman, 109 Ill. 2d at 210), and thus, an element of
the plaintiff's cause of action (Demchuk, 92 Ill. 2d at 6-7). 
Consequently, a suggestion that the plaintiff has failed to timely
file his action in such a case gives no color to the claim, and is,
therefore, not an affirmative defense.  See Vroegh v. J&M Forklift,
165 Ill. 2d 523, 651 N.E.2d 121 (1995).  Nor can such a suggestion
be deemed affirmative matter which, if not expressly stated in the
defendant's pleadings, would be likely to take the plaintiff by
surprise (see 735 ILCS 5/2-613(d) (West 1994)), as a plaintiff can
hardly be surprised that he must prove the elements of his claim.
     The plaintiff has cited the holding in Shute v. Chambers, 142
Ill. App. 3d 948, 492 N.E.2d 528 (1986), for the proposition that
defendants must affirmatively plead the passage of a special
statute of limitations in order to raise the issue as a bar to a
plaintiff's claim.  To the extent that Shute so holds, we decline
to follow it.  However, we hasten to point out that the portion of
the Shute opinion upon which the plaintiff relies is dicta, as the
court in that case ultimately held the special limitation under
consideration inapplicable to the plaintiff's cause of action. 
Shute, 142 Ill. App. 3d at 952.            
     From the very outset, the plaintiff bore the burden of
establishing that he filed his action in the Court of Claims within
the one-year limitation period set forth in the Act.  Nothing in
the record of the proceedings before the Court of Claims or in the
factual allegations contained in plaintiff's petition for a writ of
certiorari even remotely suggests that the Court of Claims, or its
judges and commissioner, denied the plaintiff an opportunity to
introduce evidence in an effort to meet that burden.  
     In a related argument, the plaintiff claims that the manner in
which the Court of Claims addressed the limitations issue somehow
deprived him of an opportunity to establish that the Department was
estopped by reason of its conduct from relying upon the statutory
limitations period to defeat his claim.  Aside from the fact that
the plaintiff fails to inform us of the conduct of which he speaks,
the argument is legally unavailing. 
     The genesis of the notion that estoppel principles are
applicable to jurisdictional time limitations seems to be found in
Lee v. Human Rights Commission, 126 Ill. App. 3d 666, 467 N.E.2d 943 (1984).  However, Lee, decided one year prior to Fredman, did
not analyze the distinction between jurisdictional limitations and
general statutes of limitation.  Instead, the Lee Court relied on
Sabath v. Morris Handler Co., 102 Ill. App. 2d 218, 223, 243 N.E.2d 723 (1968), a case which discusses the circumstances under which a
defendant may be estopped from raising a defense based upon the
passage of a general statute of limitations.  See Lee, 126 Ill.
App. 3d at 669; see also Pickering v. Human Rights Commission, 146
Ill. App. 3d 340, 348, 496 N.E.2d 746 (1986).  
     In Robinson, the court strongly questioned the applicability
of equitable principles to toll a jurisdictional time limit. 
Robinson, 201 Ill. App. 3d at 729-30.  Given the distinction
between jurisdictional limitations and general statutes of
limitation, we decline to follow Lee and its progeny, and find no
exception to the requirement that the  jurisdictional time
limitations in the Act must be met before the subject matter
jurisdiction of the Court of Claims attaches.
     Subject matter jurisdiction is the power and authority of a
tribunal to consider and act upon the case before it.  It either
exists or it does not.  Just as subject matter jurisdiction cannot
be conferred by the consent or acquiescence of the parties, neither
can it be conferred by estoppel.  Volkmar v. State Farm Mutual
Automobile Insurance Co., 104 Ill. App. 3d 149, 432 N.E.2d 1149
(1982); Paulik v. Village of Caseyville, 100 Ill. App. 3d 573, 427 N.E.2d 213 (1981).    
     Lastly, we will address the plaintiff's contention that the
trial court erred in disposing of this action in response to the
defendants' section 2-619 motion.  The plaintiff seems to argue
that the trial court failed to accept the allegations in his
petition as true for purposes of ruling on the defendants' motion,
and granted the motion in the face of disputed issues of fact. 
     The disputed issues of fact, according to the plaintiff, are
the specific dates upon which the Department disallowed his claims
for payment.  However, the Court of Claims determined that the
plaintiff filed his action more than one year after the Department
disallowed those claims; and, as stated earlier, the correctness of
that factual determination is beyond the scope of judicial review
on a petition for a writ of certiorari.  The dates which the
plaintiff claims to be in dispute are simply irrelevant to the
issue of whether he was afforded due process before the Court of
Claims. 
     The only allegation in his petition that the plaintiff
references in the context of his argument that the trial court
failed to accept all well-pled facts as true is the allegation
"that the Plaintiff's right to a fundamentally fair trial was
violated by the Court of Claims."  This allegation, however, is not
an allegation of fact; rather, it is a conclusion of law.  While a
section 2-619 motion admits all well-pled facts, it does not admit
conclusions of law.  Bell Fuels, Inc. v. Lockheed Electronics
Company, Inc., 130 Ill. App. 3d 940, 474 N.E.2d 1312 (1985).  
     Having found no deprivation of the plaintiff's due process
rights by the Court of Claims in the dismissal of his action as
untimely, we 1) need not address the plaintiff's other contentions
on appeal as they relate to the additional grounds for dismissal
relied upon by the Court of Claims, and 2) affirm the trial court's
dismissal of the plaintiff's petition for a writ of certiorari.   
  Affirmed.
     HARTMAN, P.J., and SOUTH, J., concur.