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Estate of Pressin v. State of Illinois, No. 5-98-0137 5th Dist. 1/20/99 |
January 20, 1999
NO. 5-98-0137
_______________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________
Deceased, as represented by Donna Pessin n/k/a Donna F. Spiegel, Executrix; DONNA F. SPIEGEL; JORDAN M. PESSIN, by and through Donna F. Spiegel, his mother and next friend; and TRACY G. PESSIN, by and through Donna F. Spiegel, her mother and next friend, Plaintiffs-Appellants, v. THE STATE OF ILLINOIS, THE DEPARTMENT OF TRANSPORTATION, THE DIVISION OF HIGHWAYS, THE ILLINOIS COURT OF CLAIMS, and ROGER A. SOMMER, ANDREW M. RAUCCI, NORMA F. JANN, ROBERT FREDERICK, DAVID A. EPSTEIN, RICHARD T. MITCHELL, and FREDERICK J. HESS, Judges of the Illinois Court of Claims, Defendants-Appellees. Court of Boone County. No. 97--SC--184 Richard W. Vidal, Judge,
Presiding. ________________________________________________________________ JUSTICE KUEHN delivered the opinion of the
court: The estate of Stuart I. Pessin (the Estate)
originally filed its claim for damages against the State of Illinois, the
Department of Transportation, and the Division of Highways in the Court of
Claims. In an opinion filed on October 27, 1995, the Court of Claims ruled
against the Estate and upheld that ruling on rehearing on March 27, 1997. The
Estate then filed its petition for certiorari in the circuit court of
St. Clair County, alleging due process violations in the Court of Claims
process. The Estate appeals from the trial court's February 6, 1998, order
dismissing its certiorari petition, concluding that the Estate's due
process rights were fulfilled because it "was afforded hearings on the merits
before the Court of Claims." We reverse and remand with directions. Stuart I. Pessin, a Belleville attorney, died in a
tragic motor vehicle accident on December 9, 1985, leaving behind a wife and two
children. The accident occurred at 6 p.m., and it was raining. Rain had been
falling for approximately one hour before the accident and one-tenth of an inch
of rain had accumulated on the roadway, which meant that in the area of the
accident, the water was pooling in a maximum depth of 1 to 1½ inches. Stuart I.
Pessin's vehicle suddenly veered across the center line into oncoming traffic,
colliding head-on with another vehicle. This fatal accident occurred on Illinois
Route 15 in St. Clair County. Illinois Route 15 was designed by the Illinois
Department of Transportation (IDOT). Maintenance of the roadway was in
accordance with IDOT standards. Originally, the Estate sued construction companies
who had been employed to maintain the roadway. During discovery, the Estate
learned that all work had been done in compliance with IDOT standards. The
Estate dismissed its claims against these construction companies and instead
filed its claim against the State in the Court of Claims. The Estate's claim
against the State and its agencies alleged several negligent acts or omissions
in the design and construction of the roadway, a failure to correct the
dangerous condition, a failure to restrict the speed on that section of roadway,
and a failure to warn of the dangerous condition. Two experts testified in the Court of Claims that
Stuart I. Pessin's accident was consistent with hydroplaning. No one knows for
certain how the accident occurred. On appeal, the Estate contends that the Court of
Claims effectively violated its due process rights in denying its claim for
damages. Our State's 1870 constitution provided, "The state
of Illinois shall never be made defendant in any court of law or equity." Ill.
Const. 1870, art. 4, §26. Subsequent to the 1870 constitutional enactment, the
legislature established a Commission of Claims (1877 Ill. Laws 64 (§§1-8)) and
then the Court of Claims (1903 Ill. Laws 140 (§§1-11); 1917 Ill. Laws 325
(§§1-14); 1945 Ill. Laws 660)), providing the means for claims to be filed
against the State. The 1970 constitution eliminated the above-referenced 1870
constitutional provision, and to eliminate all possible ambiguity about whether
or not suits against the State were allowable, the 1970 constitutional drafters
included a provision abolishing sovereign immunity except as provided by the
General Assembly. Ill. Const. 1970, art. XIII, §4; Sass v. Kramer, 72
Ill. 2d 485, 489, 381 N.E.2d 975, 976 (1978), citing 6 Record of Proceedings,
Sixth Illinois Constitutional Convention 676-77. Shortly thereafter, the
legislature reaffirmed the provisions allowing limited recovery against the
State by amending the Court of Claims Act, effective on January 1, 1972, the
same date that the sovereign immunity abolition section went into effect. Pub.
Act 77-1777 (see Ill. Rev. Stat. 1973, ch. 37, §439.1 et
seq.). The Court of Claims Act provides, "The court shall
have exclusive jurisdiction to hear and determine *** [a]ll claims against the
State for damages in cases sounding in tort, if a like cause of action would lie
against a private person or corporation in a civil suit ***." Ill. Rev. Stat.
1983, ch. 37, par. 439.8(d). In the Court of Claims, tort claimants can be
awarded up to, but not exceeding, $100,000 in damages. Ill. Rev. Stat. 1983, ch.
37, par. 439.8(d). But awards over $2,500 are not executionable and are only
valid to the extent that the General Assembly chooses to pass, and the Governor
signs into law, an appropriate bill to honor the award. Ill. Rev. Stat. 1983,
ch. 37, pars. 439.23, 439.24(e). Review of a Court of Claims decision is limited by
the Court of Claims Act and administrative law. The Court of Claims Act
provides, "The court by rule may provide a procedure for review of a decision."
Ill. Rev. Stat. 1983, ch. 37, par. 439.15. The only relief offered by the Court
of Claims is a new trial. 74 Ill. Adm. Code §790.240 (1996). Our supreme court
has determined that the Court of Claims Act did not expressly proclaim the Court
of Claims' exclusivity of review and that, therefore, a writ of
certiorari could be filed in the courts, seeking review of an alleged
constitutional due process violation. Rossetti Contracting Co. v. Court of
Claims, 109 Ill. 2d 72, 78-79, 485 N.E.2d 332, 334-35 (1985). An opportunity to be heard in a meaningful time and
manner is a basic right guaranteed by our State constitution. Ill. Const. 1970,
art. I, §2; Rossetti Contracting Co., 109 Ill. 2d at 78, 485 N.E.2d at
334. The Estate contends that it did not receive the requisite due process
before the Court of Claims. In dismissing the Estate's certiorari
petition, the trial court disagreed. We are asked to review the trial court's
decision in this matter. The trial court's decision was made as a matter of
law. 735 ILCS 5/2-615(a) (West 1996). Consequently, our review is de
novo. Cree Development Corp. v. Mid-America Advertising Co., 294
Ill. App. 3d 324, 329-30, 689 N.E.2d 1148, 1151 (1997). During oral argument before this court, counsel
representing the State conceded that there could be a point where this court
might conclude that the Court of Claims' decision was totally unreasonable and
arbitrary with no basis in law or fact and further that the unreasonableness and
arbitrariness of that decision resulted in a denial of due process. The trial court did not review the Court of Claims'
record, finding that the Estate's due process rights were satisfied by the fact
that the Court of Claims actually held a hearing. At a minimum, we believe that
the right to due process requires the trial court to review the record in order
to make its determination of whether or not those rights were violated. Without
reviewing the record at issue, the trial court cannot possibly determine whether
or not the Court of Claims' decision was totally unreasonable and arbitrary with
no factual or legal basis. Accordingly, we reverse and remand the judgment of
the circuit court of St. Clair County with directions to review the Court of
Claims record and reconsider its decision. Reversed and remanded with directions. WELCH and CHAPMAN, JJ.,
concur.
ESTATE OF STUART I. PESSIN,
Appeal from the
Circuit