                                      2015 IL 117485



                                 IN THE
                            SUPREME COURT
                                   OF
                          THE STATE OF ILLINOIS



                                    (Docket No. 117485)

        KALEV LEETARU, Appellant, v. THE BOARD OF TRUSTEES OF THE
                 UNIVERSITY OF ILLINOIS et al., Appellees.



                                Opinion filed April 16, 2015.



        JUSTICE KARMEIER delivered the judgment of the court, with opinion.

        Chief Justice Garman and Justices Thomas and Kilbride concurred in the
     judgment and opinion.

        Justice Burke dissented, with opinion, joined by Justices Freeman and Theis.



                                         OPINION

¶1        Kalev Leetaru, a graduate student at and former employee of the University of
     Illinois, brought this action in the circuit court of Champaign County to enjoin the
     Board of Trustees (Board) of the University of Illinois (University) and Howard
     Guenther, one of its associate vice chancellors, from taking further action in
     connection with an investigation they are pursuing against him, in his status as a
     student, regarding allegations that he engaged in misconduct which violated the
     University’s “Policy and Procedures on Academic Integrity in Research and
     Publication.” Leetaru seeks to halt the proceedings on the grounds that in
     conducting their investigation, defendants have failed to comply with the
     University’s rules and regulations governing discipline of students and that
     defendants’ actions thereby exceeded their lawful authority, are arbitrary, and have
     resulted in a gross injustice and deprived him of due process.

¶2       Defendants moved to dismiss pursuant to section 2-619(a)(1) of the Code of
     Civil Procedure (735 ILCS 5/2-619(a)(1) (West 2012)), claiming that exclusive
     jurisdiction over this matter lay in the Court of Claims. The circuit court agreed and
     dismissed Leetaru’s cause of action for lack of jurisdiction. The appellate court
     affirmed. 2014 IL App (4th) 130465. We granted Leetaru’s petition for leave to
     appeal. Ill. S. Ct. R. 315 (eff. July 1, 2013). For the reasons that follow, we now
     reverse and remand to the circuit court for further proceedings.



¶3                                    BACKGROUND

¶4       Where, as here, a cause of action is challenged through a motion to dismiss
     under section 2-619 of the Code of Civil Procedure, all well-pleaded facts in the
     complaint must be accepted as true and all reasonable inferences that may arise
     from those facts must be drawn in favor of the nonmoving party. Bjork v. O’Meara,
     2013 IL 114044, ¶ 21. According to Leetaru’s complaint, he is a doctoral student in
     the University of Illinois Graduate School of Library and Information Science and
     a former employee of the University’s Cline Center for Democracy (Cline Center
     or the Center), where he held the title of Coordinator of Research and Information
     Technology.

¶5       In January of 2011, Leetaru was notified by the director of the Cline Center,
     Peter Nardulli, that his employment there would cease the following January “for
     budgetary and performance issues.” The following November, approximately six
     weeks before his job was scheduled to end, Leetaru was placed on administrative
     leave by the director. The formal basis given for that decision was that Leetaru had
     failed to disclose the location of data belonging to the Cline Center and had used the
     Center’s data without authorization. The director told Leetaru, however, that the
     real purpose for his actions was to suspend Leetaru’s research program, cause
     Leetaru’s research funding to be rescinded, provide the director and the Center with
     unrestricted access to Leetaru’s research in order to further the director’s own
     research and publication activities, and to keep Leetaru from conducting research
     which the director considered to be in competition with the work of the Center.



                                             -2-
¶6         Once Leetaru was placed on administrative leave, a dean at the University
       barred him from his office and blocked his access to all personal and professional
       documents and objects he kept there, including personal computers, hard drives,
       USB drives, multiple CD-ROMs of data and paper folders. Among these items,
       which were seized and boxed by the University, were numerous documents and
       data related to Leetaru’s graduate studies, including his doctoral research and
       dissertation materials. Leetaru also lost access to certain supercomputing sites
       around the country.

¶7         On December 6, 2011, Leetaru received written notice of the charges which
       were the predicate for his having been placed on leave from his job. While those
       charges were pending, but after the January termination date for Leetaru’s
       employment with the Cline Center had passed, the Center’s director wrote to
       University Associate Vice Chancellor for Research Howard Guenther to express
       his continuing concerns regarding Leetaru’s actions as a Center employee,
       specifically, “misappropriation of data from a long term project that has been
       directed, funded and operated” by the Center.

¶8         Shortly thereafter, on February 8, 2012, Guenther sent notice to Leetaru in
       Leetaru’s status as a graduate student, that his office had received a formal research
       misconduct complaint alleging that Leetaru was responsible for the unauthorized
       removal of a substantial number of articles from a University-affiliated repository
       and had failed and refused to disclose the location of the missing information or
       return the relevant files despite being asked to do so repeatedly. Although the
       written notice did not identify the source of the complaint, Guenther advised
       Leetaru that the complaint had been made by the Cline Center’s director.

¶9         The University has promulgated and published policies, rules and regulations
       governing the investigation and discipline of graduate students. These are set out in
       the “University of Illinois Policy and Procedures on Academic Integrity in
       Research and Publication” (Policy and Procedures) and the bylaws of the
       “Graduate College Handbook” (Bylaws), which is “the administrative home of
       students admitted to graduate studies at the University of Illinois at
       Urbana-Champaign.” Both documents were appended to Leetaru’s complaint and
       incorporated therein.

¶ 10      The Bylaws, along with the state statutes establishing the University, define
       such matters as how the Graduate College is organized and how it conducts its

                                               -3-
       affairs. With respect to academic integrity, the Bylaws specify that “[a]ll charges of
       academic integrity infractions with respect to organized research activities against
       students in the Graduate College will be dealt with as prescribed in the [Policy and
       Procedures],” subject to certain exceptions. The Policy and Procedures, in turn,
       “incorporate[ ] federal regulations and guidelines of the U.S. Public Health
       Service” and “prescribe[ ] procedures for impartial fact-finding and fair
       adjudication of allegations of academic and Research Misconduct.”

¶ 11       The process mandated by the Policy and Procedures contains three stages,
       “Assessment,” “Inquiry” and “Investigation.” In stage one, assessment, a “Unit
       Executive Officer” (UEO) and a “Research Integrity Officer” (RIO) are required to
       make an initial assessment as to whether the complaint against a student falls within
       the definition of “Research Misconduct” as set forth in the Policy and Procedures,
       whether the complaint is credible and whether it is sufficiently specific to enable
       potential evidence supporting the complaint to be identified. The Policy and
       Procedures provide that “[t]he [a]ssessment period should be brief, preferably
       concluded within 15 calendar days.”

¶ 12       Unless it is determined that a complaint clearly falls outside the scope of the
       Policy and Procedures, the complaint and assessment findings must be brought to
       the attention of the relevant dean. Within 15 days of having a complaint brought to
       his or her attention, the dean is required to decide whether sufficient evidence exists
       to warrant moving to the next stage, inquiry. If the dean decides that an inquiry
       should be conducted, the dean must then appoint an inquiry team comprised of two
       qualified, unbiased individuals with no potential or actual conflicts of interest in the
       matter. When feasible, these are to be tenured faculty members, one for the unit in
       which the conduct in question occurred and the second from elsewhere in the
       University. The dean may also appoint a third faculty member or academic
       professional to the team. In addition, the Bylaws of the Graduate College call for
       the Graduate College’s dean to appoint to the inquiry team a qualified, unbiased
       graduate student who has no conflict of interest.

¶ 13      The RIO, after consultation with the dean and the UEO, is required to prepare a
       charge for the inquiry team which (1) sets forth the time for completion of the
       inquiry; (2) describes the allegations against the student; (3) explains that the
       purpose of the inquiry is to make an initial review of the evidence and determine
       whether an investigation is warranted; (4) sets forth the two criteria which must be
       met in order to warrant an investigation, namely, that (a) there is a reasonable basis
                                                -4-
       to conclude that the complaint falls within the definition of research misconduct
       and is “within the jurisdictional criteria” of the Policy and Procedures and (b) that it
       may have substance; and (5) informs the inquiry team members that they are
       responsible for preparing or directing the preparation of a written report of the
       inquiry.

¶ 14       Before the inquiry begins, the RIO is required to make a good faith effort to
       notify the student, in writing, that the inquiry is being undertaken. Once the inquiry
       team has been selected, the RIO must send the student a letter setting forth the
       allegations, including a copy of the Policy and Procedures. The letter must advise
       the student of various rights he or she has and admonish the student that failure to
       provide research records on request may be considered evidence that research
       misconduct occurred. Sequestration provisions also take effect. The RIO, in
       consultation with counsel for the University, is required to “undertake reasonable
       and practical steps to secure all research records and other evidence needed to
       conduct a [r]esearch [m]isconduct proceeding, to inventory those materials, and to
       sequester them in a secure manner.” However, “[w]henever practicable, the
       [student] may request and shall upon request be given copies of, or reasonable
       supervised access to, sequestered research records.”

¶ 15       According to the Policy and Procedures, the inquiry process should normally
       involve interviews of the person who filed the complaint, the student against whom
       the complaint was lodged, and the key witnesses; examination of relevant research
       records and materials; consultation with experts in the field; and such other steps as
       may be appropriate. After evaluating the evidence and then consulting with the
       RIO, the inquiry team then makes a recommendation as to whether the matter
       should proceed to stage three, investigation. The team must tender its report to the
       relevant vice chancellor for research (VCR), with a copy to the RIO, within 60 days
       after the student received written notice of the inquiry. The RIO, in turn, is required
       to deliver a copy of the report to the dean, the student, and other appropriate parties.
       Time extensions may be granted, but they must be tendered to the chancellor in
       writing, and the request for more time must set forth the length of the extension
       requested and the reason for the request.

¶ 16       Within 10 calendar days of receiving the inquiry team’s report and any written
       responsive comments from the student, the VCR “shall determine whether to order
       an [i]nvestigation, close the case, or take other appropriate action ***.” If the VCR
       decides to order an investigation, the third and final stage in the process, the student
                                                -5-
       must be notified in writing of the allegations to be investigated. The notice must be
       provided to the student within 30 calendar days after the VCR determines that an
       investigation is warranted, but before the investigation actually commences. The
       RIO must also furnish the student with a letter containing a written charge and a list
       of the student’s rights during the investigation process.

¶ 17       Within 15 calendar days of notifying the student of the investigation, the VCR,
       in consultation with the RIO, is required to appoint a three-person investigation
       panel, “each of whom shall be a tenured faculty member or an academic
       professional.” No one who served on the inquiry panel can also serve on the
       investigation panel, and the student is given the opportunity to object to a panel
       member on the ground that the person fails to meet the qualifications for panelist
       set forth in the Policy and Procedures, including that the person is biased or lacks
       sufficient training and experience to understand and judge the allegations against
       the student. After receiving its charge from the VCR, the panel undertakes its
       investigation and, within 90 days after its first meeting, presents a written report to
       the RIO. The RIO, in turn, submits the report to the VCR, and the VCR transmits
       the report to the chancellor of the University with any recommendations “for
       sanctions and/or corrective actions.” The chancellor makes the final decision
       regarding disposition of the case. The chancellor “is the final adjudicator of all
       allegations of [r]esearch [m]isconduct *** subject only to an appeal to the
       President [of the University] on procedural grounds.”

¶ 18        As previously noted, Leetaru was notified that a complaint had been lodged
       against him in a letter written by Guenther and dated February 8, 2012. Guenther’s
       letter advised Leetaru that the complaint against him would be handled in
       accordance with the Policy and Procedures as summarized above. A link to an
       internet site containing that document was included in the notice. Leetaru was
       given until February 20, 2012, to respond.

¶ 19       Guenther wrote to Leetaru again on February 17, 2012. This second letter
       notified Leetaru that sequestration guidelines contained in the aforementioned
       Policy and Procedures had been activated. It further advised Leetaru that his access
       to computer files and directories, specifically, the I-CHASS project at the National
       Center for Supercomputing Applications at the University and the National
       Institute for Computational Sciences and the Extreme Science and Engineering
       Discovery Environment, was being suspended.


                                                -6-
¶ 20       On February 20, 2012, Leetaru, through counsel, responded to the research
       misconduct complaint lodged against him by the Cline Center’s director earlier that
       month. The response, addressed to Guenther, protested that, notwithstanding the
       terms of the Policy and Procedures, Leetaru had been denied access to any paper or
       electronic data that might aid in his defense, that all the paper files from Leetaru’s
       office had been placed in the custody of the very person who had initiated the
       charge, and that no inventory of the paper documents had been made. The response
       requested confirmation that all data, paper and electronic, had been sequestered
       under Guenther’s control as the Policy and Procedures required. The response also
       asked that the charges be dismissed and that Leetaru’s property be returned to him.

¶ 21       On February 24, 2012, the Center’s director provided Guenther with a more
       detailed written description of the basis for the research misconduct complaint he
       had filed. In that document, the director stated repeatedly that Leetaru was
       positioning his GlobalNet project to be a direct competitor to the Cline Center’s
       SPEED project and that Leetaru’s GlobalNet data products were in direct
       competition with the Cline Center’s SPEED project for grants and other purposes.
       During the pendency of the proceedings, this document was not furnished to
       Leetaru, nor was he given an opportunity to respond to the claims made in the
       document.

¶ 22       Sometime that same day, February 24, Guenther, in his capacity as RIO, met
       with the UEO and a person from the Graduate College named Kopera, and the three
       of them concluded that, in their view, the charges fell within the definition of
       research misconduct, were credible and were sufficiently specific to enable
       potential evidence of research misconduct to be identified. No further action was
       taken at that time, however, and the matter remained in the assessment stage.

¶ 23       Approximately two months later, on April 26, 2012, an associate director of the
       Center wrote Guenther and others regarding Leetaru. The letter stated that “at this
       point, we only have a listing of file names, and I am assuming that we need to have
       firmer evidence than this in order to assess the University’s next steps in dealing
       with [Leetaru].” It also included a detailed listing of the issues which the University
       had with Leetaru. According to the pleadings, these issues centered on Leetaru’s
       employment with the Cline Center and had nothing to do with his status as a
       graduate student.



                                                -7-
¶ 24       While the assessment was still underway, the chancellor of the University
       approved the appointment of Barbara Wilson, a vice provost for academic affairs,
       to serve as a substitute for the dean with respect to the proceedings against Leetaru.
       Wilson met with Guenther, the UEO and Kopera on April 27, 2012, and discussed
       the allegations against Leetaru. Four days later, on May 1, 2012, Wilson issued a
       determination that the matter should proceed to the next stage, inquiry.

¶ 25       Leetaru did not learn of Wilson’s decision until September 14, 2012, when
       Guenther notified him by email that an inquiry would be initiated. Guenther’s email
       set forth the specific matters that would be investigated. These included allegations
       that Leetaru had done the following:

              (1) misappropriated news archives, web crawler data, scripts, digitized
          images and other computer files from projects that had been directed, funded,
          and operated by the Cline Center and misled Center personnel about the
          existence of that material;

              (2) copied a significant number of news archives and computer files for
          which the Center was responsible without the Center’s knowledge or approval
          to an Extreme Science and Engineering Discovery Environment (XSEDE)
          associated with the National Institute for Computational Sciences at the
          University of Tennessee Knoxville/Oak Ridge National Laboratory;

              (3) copied a significant number of news archives and computer files for
          which the Center was responsible without the Center’s knowledge or approval
          to various other locations;

             (4) implemented the Center’s main web crawler operation on the
          EnterpriseWorks’ server without the Center’s knowledge or approval and then
          subsequently stored the processed data on the I-CHASS server;

              (5) ignored formal requests to disclose the location of the missing news
          archives and computer files, and failed to return these materials when requested
          to do so;

             (6) falsely reported his credentials in his online resume, presentations,
          proposals and correspondence;




                                               -8-
              (7) utilized the Center’s news archives, web crawler data, scripts, digitized
          images and other computer files in the development of GlobalNet, which was
          then used to compete with the Center’s projects in grant applications;

             (8) utilized the Center’s news archives and computer files in at least one
          scholarly publication without attribution or approval; and

              (9) provided false and misleading statements to University officials in
          response to the initial allegations.

¶ 26       After outlining the allegations, Guenther’s email advised Leetaru of the
       individuals who would be undertaking the inquiry, a group which included
       Guenther. The notice explained that Leetaru could submit a written objection if he
       believed that any of those individuals had some potential or actual unresolved
       personal, professional, or financial conflicts of interest with any party or witness;
       was biased; or lacked appropriate qualifications to evaluate the matters at issue.
       The notice explained the process which would be followed, admonished Leetaru of
       his obligation to fully cooperate in the proceedings, and advised him of his
       responsibility to provide evidence, information and materials, and to maintain
       confidentiality. It also informed him that he was entitled to consult with appropriate
       University committees and private legal counsel; to submit a written response to
       the charges and have his comments provided to the investigative team to
       accompany its report; and to be notified of the outcome of the investigation and get
       a copy of the investigative report.

¶ 27       Leetaru, through his attorney, responded to the notice by challenging the
       University’s authority to undertake the inquiry, demanding that the inquiry be
       stopped, objecting to the composition of the investigatory team, requesting that a
       graduate student be added to the team in accordance with the Bylaws, and asserting
       that the investigation was retaliatory in nature. Leetaru’s response also included his
       own written remarks in answer to each of the nine charges outlined in the inquiry
       notice.

¶ 28       Following Leetaru’s response and objections, a graduate student was added to
       the inquiry team, then later replaced with a different graduate student after Leetaru
       complained that the first student had a conflict. Leetaru was then given additional
       time to challenge the composition of the inquiry team. Before that deadline expired,
       the inquiry team proceeded with its work. Without requesting or conducting an

                                               -9-
       interview with Leetaru, the team subsequently prepared and submitted its inquiry
       report.

¶ 29       The report, written by Guenther on behalf of the inquiry team, was dated
       November 12, 2012. It found that there was a reasonable basis for concluding that
       the allegations against Leetaru met the definition of research misconduct under the
       University’s Policy and Procedures; that allegations 1, 2, 3, 5, 6, 8 and 9 might have
       substance and warranted a full investigation; and that allegation 4 should be
       examined further. The report also recommended that the University pursue an
       allegation that Leetaru had provided false and misleading statements in response to
       the initial complaint and as part of the research misconduct complaint process.

¶ 30       Leetaru responded directly to Guenther. In a lengthy email, Leetaru detailed the
       numerous ways in which he believed those associated with the investigation had
       failed to comply with the applicable procedures. Leetaru wrote that “it is difficult to
       understand any portion of this process, which has now stretched on for more than a
       year, to comport with any understanding of ‘due process’ or ‘good faith.’ ” In
       Leetaru’s estimation, the process had “now become so corrupted that there is
       simply no process left and there is no choice but to dismiss the accusations against
       [him] in their entirety and to permit [the University’s ethics officer] to conduct a
       formal investigation of misconduct by University personnel in their handling of this
       matter.”

¶ 31       Leetaru’s attorney responded separately to the University counsel’s office. In
       his letter, Leetaru’s attorney expressed his view that the University had
       substantially violated Leetaru’s rights under its own policies and had “not pursued
       this matter with due process.” The attorney’s letter further advised counsel for the
       University that he would seek a temporary restraining order in the event the
       University decided to initiate a full and formal investigation as recommended by
       the inquiry team.

¶ 32       On January 3, 2013, Guenther, acting in his capacity as RIO, wrote to Leetaru
       to advise him that the matter would proceed to the third stage, investigation. The
       specific allegations that were to be investigated tracked those identified by the
       inquiry, specifically, the items labelled by the inquiry team as 1-6, 8 and 9.

¶ 33       The following month, Leetaru’s attorney initiated this litigation by filing a
       complaint in the circuit court of Champaign County for preliminary and permanent
       injunctive relief. The complaint named as defendants Guenther and the
                                               - 10 -
       University’s Board of Trustees. The lawsuit did not concern Leetaru’s status as an
       employee or challenge the University’s decision terminating his employment.
       Rather, it pertained solely to Leetaru’s status as a graduate student and the threat to
       that status posed by the manner in which the research misconduct proceedings were
       being conducted.

¶ 34       Leetaru alleged that during the course of the proceedings, defendants
       repeatedly acted in excess of their delegated authority by violating the fundamental
       due process rights accorded Leetaru as a graduate student through the University’s
       published rules, policies, bylaws and regulations. After setting out the controlling
       policies and procedures, the complaint described how the course of the inquiry
       deviated from those policies and procedures. The list was lengthy and included the
       following:

              (1) Although the proceedings against Leetaru were directed at his status as a
          graduate student, the complaint and ensuing inquiry and investigation were
          unrelated to the research he is doing to fulfill his degree requirements. They
          were premised instead on conduct related to his status as an employee of the
          Cline Center.

              (2) While the Policy and Procedures specified that the decision as to
          whether a complaint should move from assessment to inquiry is to be made by
          the dean, the decision in this case was made by the RIO and UEO together with
          an interim vice chancellor (Wilson) who had been substituted for the dean
          notwithstanding the absence of any rule authorizing other administrators to
          stand in for the dean in such proceedings.

              (3) In addition to being made by the wrong person, the determination that
          the matter should move from the assessment stage to the inquiry stage was
          untimely. The decision to proceed should have been made within 15 days after
          the complaint was brought to the attention of the relevant dean. In this case, the
          Dean had direct or constructive notice of the complaint by late February. By
          Leetaru’s calculations, the dean should have made a decision no later than
          March 9, 2012. Instead, the decision, made by the dean’s substitute, did not
          come until May 1, 2012, making it 53 days late, and it was not communicated to
          Leetaru until mid-September, approximately four and a half months later.




                                               - 11 -
             (4) Contrary to the Bylaws, the inquiry team initially did not include any
          graduate student, and then, when a graduate student was appointed, the student
          had to be replaced due to a conflict.

              (5) The Policy and Procedures provide that the inquiry team will normally
          interview the student under investigation. In this case, however, not only was
          Leetaru not interviewed, but the RIO specifically instructed the inquiry team
          not to contact or communicate with him.

              (6) The Policy and Procedures state that the inquiry team shall prepare a
          written report, but the report here was prepared and submitted by the RIO,
          actions which, in Leetaru’s view, usurped the authority of the team.

              (7) The sequestration procedures set forth in the Policy and Procedures
          were not properly followed, depriving Leetaru of access to materials he needed
          to defend himself and enabling others to tamper with the data.

              (8) The decision by the vice chancellor for research (VCR) that the matter
          should move from the inquiry stage to the investigation phase was untimely.
          According to the Policy and Procedures, the VCR was to make his
          determination with 10 calendar days of receiving the inquiry team’s report and
          any written comments from the student and then to provide written notice to the
          student. By Leetaru’s calculations, the VCR’s deadline for these actions
          expired in December, 2012, but he did not receive written notice until January,
          2013.

              (9) Although the Policy and Procedures permit the VCR to extend any
          timeline or “make such other changes to these procedures as may be necessary
          to effectuate the purposes of this Policy or insure [a student’s] right of due
          process,” the Policy and Procedures also specify that the student is to be
          consulted about any such changes. According to Leetaru , he was not consulted
          about the deviations from the Policy and Procedures in his case.

¶ 35       Leetaru alleged in his complaint that by failing to abide by the Policy and
       Procedures and the Bylaws, defendants exceeded their delegated authority and
       violated his fundamental due process rights. He further asserted that the
       University’s internal or administrative procedures provided no mechanism for him
       to compel the defendants to follow their own policies, and that in the absence of
       intervention by the courts, he would suffer irreparable harm “in the loss of his

                                            - 12 -
       ability to continue his doctoral studies, write and defend his dissertation, and be
       awarded a Ph.D., the loss of additional research grants beyond those already lost,
       the loss of his reputation and stature in the community in his field to such extent
       that [he] could not be fully compensated by money damages.” For his relief,
       Leetaru asked that defendants be preliminarily and permanently enjoined from
       proceeding with the investigation. Leetaru did not assert that he was in any way
       exempt from scrutiny by the University or its Graduate School of Library and
       Information Science, nor did he challenge the University’s right, power and duty to
       protect its academic integrity. His position was simply that if the University was
       going to investigate him for research misconduct, it should be required to carry out
       that investigation in accordance with the rules, policies, bylaws and regulations it
       had promulgated to govern such investigations.

¶ 36       Defendants responded to Leetaru’s allegations by filing a motion to dismiss his
       cause of action for lack of subject matter jurisdiction pursuant to section
       2-619(a)(1) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(1) (West 2012)).
       Invoking the State Lawsuit Immunity Act (745 ILCS 5/0.01 et seq. (West 2012))
       and the Court of Claims Act (705 ILCS 505/1 et seq. (West 2012)), defendants
       contended that this action was actually one against the State, that the State is not
       subject to being sued in circuit court except under circumstances not present in this
       case, and that exclusive jurisdiction over Leetaru’s claims lay in the Court of
       Claims.

¶ 37       While the motion to dismiss was pending, Leetaru sought a temporary
       restraining order. His request was denied by the circuit court. The appellate court
       affirmed on interlocutory appeal in an unpublished order under Illinois Supreme
       Court Rule 23 (Ill. S. Ct. R. 23 (eff. July 1, 2011)) on the grounds that denial of the
       temporary restraining order was not an abuse of discretion based on the information
       then available to the court. Leetaru v. Board of Trustees of the University of Illinois,
       2013 IL App (4th) 130290-U.

¶ 38       Following remand from the appellate court, the circuit court took up
       defendants’ motion to dismiss. It concluded that the motion was meritorious and
       therefore dismissed Leetaru’s cause of action for lack of jurisdiction. Leetaru
       promptly appealed. Once again he was unsuccessful. The appellate court agreed
       that the circuit court lacked jurisdiction and affirmed its judgment dismissing the
       case. 2014 IL App (4th) 130465. As noted at the outset of this opinion, Leetaru then
       petitioned this Court for leave to appeal, which we allowed.
                                                - 13 -
¶ 39                                       ANALYSIS

¶ 40       In undertaking our analysis, we begin by clarifying what is and is not before us.
       Central to this appeal is the fact that it arises from the circuit court’s ruling on a
       motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735
       ILCS 5/2-619 (West 2010)). A motion to dismiss under section 2-619 admits the
       sufficiency of the complaint, but asserts affirmative matter that defeats the claim.
       Bjork v. O’Meara, 2013 IL 114044, ¶ 21. Consistent with their decision to invoke
       section 2-619, defendants therefore do not and could not challenge the legal
       sufficiency of Leetaru’s complaint. See Smith v. Waukegan Park District, 231 Ill.
       2d 111, 121 (2008) (to raise a challenge pursuant to section 2-619, a defendant
       “must admit the legal sufficiency” of plaintiff’s complaint). For present purposes,
       defendants accept that Leetaru has stated a legally cognizable claim against them
       based on their failure to adhere to the Policy and Procedures and Bylaws governing
       discipline of graduate students at the University. Their contention is simply that
       Leetaru is pursuing his claim before the wrong tribunal. In defendants’ view, the
       only body authorized by law to consider Leetaru’s complaint is the Illinois Court of
       Claims.

¶ 41      As we have indicated, the circuit court agreed with defendants and therefore
       dismissed Leetaru’s cause of action pursuant to section 2-619(a)(1) of the Code of
       Civil Procedure (735 ILCS 5/2-619(a)(1) (West 2012)) on the ground that it lacked
       subject matter jurisdiction. We review a circuit court’s grant of a motion to dismiss
       based on a lack of subject matter jurisdiction de novo. Village of Roselle v.
       Commonwealth Edison Co., 368 Ill. App. 3d 1097, 1104 (2006); see People v.
       Philip Morris, Inc., 198 Ill. 2d 87, 94 (2001).

¶ 42       Defendants’ jurisdictional challenge is premised on principles of sovereign
       immunity. The doctrine of sovereign immunity was abolished in Illinois by the
       1970 Constitution “[e]xcept as the General Assembly may provide by law.” Ill.
       Const. 1970, art. XIII, § 4. As it was authorized to do under this provision, the
       General Assembly subsequently reinstituted the doctrine through enactment of the
       State Lawsuit Immunity Act (745 ILCS 5/0.01 et seq. (West 2012)). The statute
       provides that except as provided in the Court of Claims Act (705 ILCS 505/1 et seq.
       (West 2012)) and several other specified statutes, “the State of Illinois shall not be
       made a defendant or party in any court.” 745 ILCS 5/1 (West 2012). Township of
       Jubilee v. State of Illinois, 2011 IL 111447, ¶ 22. The Court of Claims Act, in turn,
       states that the Court of Claims shall have exclusive jurisdiction to hear and
                                               - 14 -
       determine nine enumerated matters, including “[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.” 705 ILCS 505/8(a)
       (West 2012).

¶ 43       Leetaru’s complaint does not purport to assert a claim against the State as such.
       Rather, it names as defendants the Board of Trustees of the University, a public
       corporation (110 ILCS 305/1 (West 2012)), and one of its associate vice
       chancellors. Defendants contend, however, that the exclusive jurisdiction provision
       of the Court of Claims Act should nevertheless apply because, notwithstanding the
       formal designation of the parties, the lawsuit actually seeks to control the actions of
       the State or subject it to liability and that it is therefore tantamount to an action
       against the State itself.

¶ 44       Defendants are correct that the formal identification of the parties as they
       appear in the record is not dispositive for purposes of the Court of Claims Act. In
       determining whether sovereign immunity applies to a particular case, substance
       takes precedence over form. See Hudgens v. Dean, 53 Ill. App. 3d 126, 129 (1977).
       That an action is nominally one against the servants or agents of the State does not
       mean that it will not be considered as one against the State itself. See Senn Park
       Nursing Center v. Miller, 104 Ill. 2d 169, 187 (1984). By the same token, the fact
       that the named defendant is an agency or department of the State does not mean that
       the bar of sovereign immunity automatically applies. In appropriate circumstances,
       plaintiffs may obtain relief in circuit court even where the defendant they have
       identified in their pleadings is a state board, agency or department. See Landfill,
       Inc. v. Pollution Control Board, 74 Ill. 2d 541, 552 (1978); Moline Tool Co. v.
       Department of Revenue, 410 Ill. 35, 37 (1951); Rockford Memorial Hospital v.
       Department of Human Rights, 272 Ill. App. 3d 751, 757 (1995); Illinois State
       Employees Ass’n v. Department of Children & Family Services, 178 Ill. App. 3d
       712, 717 (1989).

¶ 45       Whether an action is in fact one against the State and hence one that must be
       brought in the Court of Claims depends on the issues involved and the relief sought.
       Healy v. Vaupel, 133 Ill. 2d 295, 308 (1990); Moline Tool Co., 410 Ill. at 37; Senn
       Park Nursing Center, 104 Ill. 2d at 186; City of Springfield v. Allphin, 74 Ill. 2d
       117, 124 (1978); Sass v. Kramer, 72 Ill. 2d 485, 490-91 (1978). The prohibition
       “ ‘against making the State of Illinois a party to a suit cannot be evaded by making
       an action nominally one against the servants or agents of the State when the real
                                               - 15 -
       claim is against the State of Illinois itself and when the State of Illinois is the party
       vitally interested.’ ” Healy, 133 Ill. 2d at 308 (quoting Sass v. Kramer, 72 Ill. 2d at
       491). The doctrine of sovereign immunity “affords no protection, however, when it
       is alleged that the State’s agent acted in violation of statutory or constitutional law
       or in excess of his authority, and in those instances an action may be brought in
       circuit court.” Id. (and cases cited therein). See S.J. Groves & Sons Co. v. State, 93
       Ill. 2d 397, 401 (1982).

¶ 46       This exception is premised on the principle that while legal official acts of state
       officers are regarded as acts of the State itself, illegal acts performed by the officers
       are not. In effect, actions of a state officer undertaken without legal authority strip
       the officer of his official status. Accordingly, when a state officer performs illegally
       or purports to act under an unconstitutional act or under authority which he does not
       have, the officer’s conduct is not regarded as the conduct of the State. PHL, Inc. v.
       Pullman Bank & Trust Co., 216 Ill. 2d 250, 261 (2005). A suit may therefore be
       maintained against the officer without running afoul of sovereign immunity
       principles. Sass v. Kramer, 72 Ill. 2d at 492; Senn Park Nursing Center, 104 Ill. 2d
       at 188.

¶ 47       Of course, not every legal wrong committed by an officer of the State will
       trigger this exception. For example, where the challenged conduct amounts to
       simple breach of contract and nothing more, the exception is inapplicable. Smith v.
       Jones, 113 Ill. 2d 126, 132-33 (1986). Similarly, a state official’s actions will not be
       considered ultra vires for purposes of the doctrine merely because the official has
       exercised the authority delegated to him or her erroneously. The exception is
       aimed, instead, at situations where the official is not doing the business which the
       sovereign has empowered him or her to do or is doing it in a way which the law
       forbids. PHL, Inc. v. Pullman Bank & Trust Co., 216 Ill. 2d at 266. The purpose of
       the doctrine of sovereign immunity, after all is to “protect[ ] the State from
       interference in its performance of the functions of government and preserve[ ] its
       control over State coffers.” S.J. Groves & Sons Co. v. State, 93 Ill. 2d 397, 401
       (1982). The State cannot justifiably claim interference with its functions when the
       act complained of is unauthorized or illegal. Senn Park Nursing Center, 104 Ill. 2d
       at 188.

¶ 48       For similar reasons, the courts of Illinois have consistently held that an action to
       enjoin the State or its agents from taking actions in excess of their authority and in
       violation of plaintiff’s protectable legal interests does not contravene the immunity
                                                - 16 -
       prohibition. Id. at 189. Even where the nominal defendant is the State or an agency
       of the State, sovereign immunity will not bar the action because the action is not
       considered to be against the State itself. As we have explained:

          “ ‘ “[t]he presumption obtains that the State, or a department thereof, will not,
          and does not, violate the constitution and laws of the State, but that such
          violation, if it occurs, is by a State officer or the head of a department of the
          State and such officer or head may be restrained by a proper action instituted by
          a citizen.” ’ City of Springfield v. Allphin (1978), 74 Ill. 2d 117, 124 ***,
          quoting Schwing v. Miles (1937), 367 Ill. 436, 441-42 ***.” (Internal quotation
          marks omitted.) Id.

       Applying these principles, this court and our appellate court have repeatedly
       reaffirmed the right of plaintiffs to seek injunctive relief in circuit court to prevent
       unauthorized or unconstitutional conduct by the State, its agencies, boards,
       departments, commissions and agents or to compel their compliance with legal or
       constitutional requirements. See City of Springfield v. Allphin, 74 Ill. 2d 117;
       County of Cook v. Ogilvie, 50 Ill. 2d 379, 383 (1972); Herget National Bank of
       Pekin v. Kenney, 105 Ill. 2d 405, 408-11 (1985); Rockford Memorial Hospital v.
       Department of Human Rights, 272 Ill. App. 3d at 757; Village of Maywood Board
       of Fire & Police Commissioners v. Department of Human Rights, 296 Ill. App. 3d
       570, 579 (1998). This includes actions to require compliance with administrative
       rules and regulations, for violation of such rules and regulations is illegal. See
       Farmer v. McClure, 172 Ill. App. 3d 246, 254 (1988); Fernandes v. Margolis, 201
       Ill. App. 3d 47, 50 (1990).

¶ 49       Under the foregoing authorities, the cause of action alleged by Leetaru in this
       case may proceed in circuit court without offending principles of sovereign
       immunity. As we have already pointed out, Leetaru does not question the right of
       defendants to investigate research misconduct by graduate students at the
       University of Illinois. That is something they clearly have authority to do in
       furtherance of the University’s educational mission. Rather, his contention is that in
       investigating misconduct, defendants are legally obligated to adhere to the policies
       and procedures promulgated by the University governing such investigations as
       “set out inter alia in the ‘University of Illinois Policy and Procedures on Academic
       Integrity in Research and Publication,’ *** and the ‘Bylaws of the Graduate
       College,’ ” and that in the numerous and various ways alleged in his complaint,
       they have failed and refused to do so. Defendants’ alleged acts and omissions,
                                                - 17 -
       moreover, involve far more than a mere difference of opinion over how the rules
       and regulations should be interpreted or applied and are not simply the result of
       some inadvertent oversight or de minimis technical violation. Rather, according to
       Leetaru, they constitute a fundamental disregard for core provisions governing
       academic discipline at the University, thereby exceeding defendants’ authority and
       violating Leetaru’s constitutional rights to due process.

¶ 50       As noted at the outset of our analysis, by moving to dismiss under section 2-619
       of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2012)), defendants have
       admitted the legal sufficiency of the plaintiff’s cause of action. Kedzie & 103rd
       Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115 (1993); Smith v. Waukegan
       Park District, 231 Ill. 2d 111, 121 (2008) (as modified on denial of rehearing).
       Whether defendants’ conduct is, in fact, actionable on the grounds that it was
       unauthorized, illegal and in violation of Leetaru’s rights is a question that
       defendants may pursue further following remand. For purposes of this appeal,
       however, it is not at issue. Because sovereign immunity affords no protection when
       agents of the State have acted in violation of statutory or constitutional law or in
       excess of their authority, which is precisely what Leetaru has alleged, Illinois
       precedent compels the conclusion that he was entitled to proceed in circuit court.
       Fritz v. Johnston, 209 Ill. 2d 302, 311 (2004); Bio-Medical Laboratories, Inc. v.
       Trainor, 68 Ill. 2d 540, 548 (1977) (suit to enjoin state agent from taking actions in
       excess of his delegated authority and in violation of plaintiff’s protectable legal
       interests not barred by sovereign immunity); see Farmer v. McClure, 172 Ill. App.
       3d at 254 (action taken in violation of administrative rules is illegal and is not
       protected by the shield of sovereign immunity). The circuit court therefore erred
       when it dismissed Leetaru’s cause of action for lack of subject matter jurisdiction,
       and its judgment should not have been affirmed by the appellate court.

¶ 51        In urging a contrary result, defendants assert that sovereign immunity
       principles should bar the action in circuit court because it seeks to enforce a present
       claim against the State and would interfere with the performance of a governmental
       function. This argument is untenable. Unlike cases such as Ellis v. Board of
       Governors of State Colleges & Universities, 102 Ill. 2d 387 (1984), which sought
       damages and other relief based on discharge of a tenured university professor, or
       Healy v. Vaupel, 133 Ill. 2d 295 (1990), which sought damages for personal injuries
       sustained by a gymnast during university-sponsored gymnastics activities,
       Leetaru’s action does not seek redress for some past wrong. As we have explained,
       it seeks only to prohibit future conduct (proceeding with the disciplinary process)
                                                - 18 -
       undertaken by agents of the State in violation of statutory or constitutional law or in
       excess of their authority. Claims of this kind are not against the State at all and do
       not threaten the State’s sovereign immunity. PHL, Inc. v. Pullman Bank & Trust
       Co., 216 Ill. 2d at 261; Bio-Medical Laboratories, Inc. v. Trainor, 68 Ill. 2d at 548.

¶ 52       On this appeal, Leetaru has advanced an alternative theory to support his right
       to proceed in circuit court, namely, that the General Assembly made defendants
       amenable to suit there when it enacted section 1 of the University of Illinois Act
       (110 ILCS 305/1 (West 2012)). That statute states, inter alia, that the Board of
       Trustees of the University of Illinois may sue and be sued, provided that any suit
       against the Board based upon a claim sounding in tort must be filed in the Court of
       Claims.

¶ 53       In City of Chicago v. Board of Trustees of the University of Illinois, 293 Ill.
       App. 3d 897, 903 (1997), the Appellate Court, First District, examined section 1
       and concluded that its “sue and be sued” provision constitutes an exception to the
       doctrine of sovereign immunity in non-tort actions that are not covered in the Court
       of Claims Act and that the City of Chicago could therefore rely on it as a basis for
       bringing an equitable action for declaratory relief against the Board of Trustees of
       the University of Illinois in circuit court. Invoking this authority, Leetaru asserts
       that because the present lawsuit is not an action sounding in tort, but rather an
       equitable proceeding to halt action by defendants that is alleged to be unauthorized
       and in violation of constitutional protections, section 1’s “sue or be sued” provision
       should likewise permit him to proceed in circuit court.

¶ 54       The appellate court in this case rejected that argument based on Raymond v.
       Goetz, 262 Ill. App. 3d 597 (1994), an Appellate Court, Fourth District, decision
       which predated City of Chicago v. Board of Trustees of the University of Illinois,
       293 Ill. App. 3d 897. The plaintiff in Raymond asserted that because the University
       of Illinois’s enabling legislation empowered it to sue and be sued, provided that tort
       claims against it had to be brought in the Court of Claims, then by implication
       contract claims against the University need not be brought in the Court of Claims
       but could be asserted instead in circuit court. Raymond, 262 Ill. App. 3d at 600. The
       appellate court, however, disagreed. It held that a university’s enabling act was not
       determinative of where it could be sued and that regardless of the provisions of the
       enabling legislation, the proper jurisdiction for a suit against the University for
       breach of contract was controlled by the State Lawsuit Immunity Act (745 ILCS
       5/0.01 et seq. (West 2012)). Because the Act incorporated the Court of Claims Act,
                                               - 19 -
       which conferred exclusive jurisdiction on the Court of Claims over actions against
       the State for breach of contract, the appellate court concluded that the Court of
       Claims had exclusive jurisdiction to hear the plaintiff’s contract dispute against the
       University. For this and other reasons, it affirmed dismissal of plaintiff’s cause of
       action for lack of jurisdiction.

¶ 55       City of Chicago v. Board of Trustees of the University of Illinois, 293 Ill. App.
       3d 897, distinguished Raymond, 262 Ill. App. 3d 597, and similar authorities on the
       grounds that they involved contract or tort claims, and were inapplicable to claims
       such as the one before it, which asked for declaratory relief. City of Chicago v.
       Board of Trustees of the University of Illinois, 293 Ill. App. 3d at 902-03. Leetaru
       argues that his claim for injunctive relief is similarly distinguishable and the
       appellate court in this case should therefore have followed City of Chicago v. Board
       of Trustees of the University of Illinois, 293 Ill. App. 3d 897, rather than Raymond,
       262 Ill. App. 3d 597.

¶ 56       We agree with Leetaru that there is analytical tension between how the
       appellate court viewed section 1 of the University of Illinois Act in this case and
       how the statute was interpreted in City of Chicago v. Board of Trustees of the
       University of Illinois, 293 Ill. App. 3d 897. Resolution of that tension, however,
       must wait for another day. It is axiomatic that this court will not consider issues
       where they are not essential to the disposition of the cause or where the result will
       not be affected regardless of how the issues are decided. People ex rel. Sklodowski
       v. State, 162 Ill. 2d 117, 130 (1994) (as modified on denial of rehearing). This is
       just such a situation. Even if the appellate court in this case was correct and
       jurisdiction could not be predicated on section 1, that conclusion would not change
       the outcome. Leetaru is entitled to pursue injunctive relief in circuit court based on
       the exception to sovereign immunity set forth above.

¶ 57       Finally, plaintiff contends that he should be permitted to proceed in circuit court
       because a contrary conclusion would contravene article I, section 12, of the Illinois
       Constitution of 1970, which provides, in part, that “[e]very person shall find a
       certain remedy in the laws for all injuries and wrongs which he receives to his
       person, privacy, property or reputation.” Ill. Const. 1970, art. I, § 12. For the same
       reasons just discussed, we need not address this contention either. Plaintiff’s cause
       of action may proceed in circuit court whether section 12 would afford him
       protection or not. A discussion of the scope of section 12 is therefore unnecessary
       to the disposition.
                                               - 20 -
¶ 58       We conclude by emphasizing that our decision today is premised on the
       particular facts alleged in this case and the specific procedural posture in which the
       jurisdiction of the circuit court was challenged. Our holding that plaintiff’s cause of
       action should not have been dismissed for lack of jurisdiction under section
       2-619(a)(1) is in no sense a ruling on the merits of plaintiff’s cause of action. On
       that we express no view. Whether the conduct alleged in plaintiff’s complaint is
       actionable as a matter of law and can be proven factually are matters that remain to
       be determined. Our task today was not to decide whether plaintiff had a valid claim,
       but merely to determine where that claim should be litigated. The answer to that is
       the circuit court.



¶ 59                                     CONCLUSION

¶ 60       For the foregoing reasons, the circuit court erred when it dismissed Leetaru’s
       cause of action for lack of jurisdiction, and its judgment should not have been
       affirmed by the appellate court. The judgments of the circuit and appellate courts
       are therefore reversed, and the cause is remanded to the circuit court of Champaign
       County for further proceedings.



¶ 61      Reversed and remanded.



¶ 62      JUSTICE BURKE, dissenting:

¶ 63       The majority holds that the plaintiff’s complaint may go forward in the circuit
       court under an exception to sovereign immunity which permits lawsuits that seek
       prospective injunctive relief from ultra vires actions committed by state officials.
       In so holding, the majority misconstrues the scope and nature of the exception. For
       this reason, as well as others set forth below, I respectfully dissent.



¶ 64                                     BACKGROUND

¶ 65      The plaintiff, Kalev Leetaru, filed a two-count complaint in the circuit court of
       Champaign County seeking preliminary and permanent injunctive relief against the
                                               - 21 -
       defendants, the “Board of Trustees of the University of Illinois, a Public
       Corporation,” 1 and “Howard R. Guenther, Associate Vice Chancellor for
       Research, University of Illinois at Urbana-Champaign, in his official capacity
       only.” The complaint described how Leetaru, while a graduate student at the
       University of Illinois at Urbana-Champaign, was accused of committing various
       acts of misconduct including, among other things, misappropriating research
       material. The complaint alleged that, during the course of investigating these
       accusations, the University and Guenther violated various procedures that
       governed the school’s investigation of academic and research misconduct.

¶ 66       The procedures allegedly violated by the University and Guenther were
       outlined in two documents: the University’s “Policy and Procedures on Academic
       Integrity in Research and Publication” and the bylaws of the “Graduate College
       Handbook.” In general, these documents, which were generated by the University
       under its enabling authority (110 ILCS 305/1 (West 2012)), set forth a three-stage
       process for the University to follow when investigating a complaint of academic or
       research misconduct.

¶ 67       In the first stage, or “[a]ssessment” stage, University officials determine
       whether the allegations in the complaint meet the definitions of misconduct defined
       in the Policy and Procedures and whether the allegations are credible. If these
       criteria are met, the complaint is forwarded to the appropriate University dean who
       then determines whether the complaint should be advanced to the second or
       “[i]nquiry” stage. If the complaint is advanced to the inquiry stage, an “[i]nquiry
       team” is appointed to further investigate the allegations. After considering the
       allegations in the complaint and relevant evidence, the inquiry team then makes a
       recommendation to the vice chancellor for research, in the form of a written report,
       as to whether the complaint should be advanced to the third or “[i]nvestigation”
       stage. If the vice chancellor for research concludes that an investigation is
       warranted, a three-member panel is appointed. This panel prepares a report,
       including any recommended disposition for the misconduct, which is then
       forwarded to the chancellor of the University. Ultimately, the chancellor is the final
       adjudicator for all allegations of research misconduct and determines the
       disposition of the case, including any sanctions.


           1
              The “Board of Trustees of the University of Illinois” is the legal name of the entity commonly
       known as the University of Illinois. See 110 ILCS 305/1 (West 2012); Williams v. University of
       Illinois, 945 F. Supp. 163, 164 n.1 (N.D. Ill. 1996).
                                                      - 22 -
¶ 68       At the time Leetaru filed his complaint, the first two stages of the University’s
       investigation had been completed. The third stage had just begun. Supra ¶ 32.
       Leetaru’s complaint alleged that the University and Guenther violated portions of
       the Policy and Procedures and the Bylaws during the first two stages. Specifically,
       Leetaru alleged that defendants: allowed the determination as to whether the
       investigation should proceed from stage one to stage two to be made by the wrong
       person; failed to make a determination to proceed with a stage-two inquiry within
       the time limits set forth in the Policy and Procedures; excluded a graduate student
       from the inquiry team where the Bylaws required that one be on the team and then
       appointed a student who had to be replaced due to a conflict; instructed the inquiry
       team not to communicate with or contact Leetaru; failed to allow the inquiry team
       to draft the inquiry report, which was instead prepared by Guenther; failed to
       sequester and preserve evidence that would permit Leetaru to defend himself
       against the allegations of misconduct; failed to timely notify Leetaru whether the
       matter would proceed from stage two to stage three; and failed to consult with
       Leetaru regarding any variance to the required time limits for stage one and stage
       two.

¶ 69        Based on the foregoing allegations, Leetaru’s complaint sought—in the words
       of the complaint itself—“to have the investigation stopped and the University
       enjoined from continuing the process against him.” More specifically, count I of
       Leetaru’s complaint sought a preliminary injunction to “restrain the University of
       Illinois and Howard Guenther in his official capacity from proceeding with the
       Investigation.” Count II sought a permanent injunction to “restrain the University
       of Illinois and Howard Guenther in his official capacity from proceeding with the
       Investigation.” See supra ¶ 35 (“For his relief, Leetaru asked that defendants be
       preliminarily and permanently enjoined from proceeding with the investigation.”).

¶ 70        Defendants filed a joint motion to dismiss Leetaru’s complaint under section
       2-619(a)(1) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(1) (West 2012)).
       Defendants contended that the complaint was an action against the “State of
       Illinois” within the meaning of the State Lawsuit Immunity Act (Immunity Act)
       (745 ILCS 5/0.01 et seq. (West 2012)), and, thus, could not proceed in circuit court.
       Instead, according to defendants, jurisdiction over Leetaru’s complaint was vested
       exclusively in the Court of Claims under the Court of Claims Act (705 ILCS 505/1
       et seq. (West 2012)). The circuit court granted defendants’ motion. The appellate
       court affirmed the dismissal. 2014 IL App (4th) 130465.

                                              - 23 -
¶ 71                                       ANALYSIS

¶ 72        Prior to 1970, sovereign immunity in Illinois was a constitutional doctrine, set
       forth in article IV, section 26, of the Illinois Constitution of 1870. That provision
       stated that “[t]he State of Illinois shall never be made defendant in any court of law
       or equity.” Ill. Const. 1870, art. IV, § 26. The Illinois Constitution of 1970
       abolished sovereign immunity “[e]xcept as the General Assembly may provide by
       law.” Ill. Const. 1970, art. XIII, § 4. Pursuant to its constitutional authority, the
       General Assembly reinstated sovereign immunity in the Immunity Act. 745 ILCS
       5/0.01 et seq. (West 2012). Section 1 of the Immunity Act states that “[e]xcept as
       provided in the Illinois Public Labor Relations Act, the Court of Claims Act, the
       State Officials and Employees Ethics Act, and Section 1.5 of this Act, the State of
       Illinois shall not be made a defendant or party in any court.” 745 ILCS 5/1 (West
       2012).

¶ 73        The Immunity Act’s seemingly straightforward requirement that “the State of
       Illinois shall not be made a defendant or party in any court” has generated a
       considerable body of case law that has not always been consistent in defining those
       instances where the State is made a defendant in circuit court. It is necessary,
       therefore, to set forth the governing framework used when the statute is raised as a
       defense.

¶ 74       The Immunity Act may be implicated whenever a plaintiff files a direct action
       in circuit court which names as a defendant the State of Illinois, a state agency,
       department or other arm of the State, or a State employee or official. If the lawsuit
       names the State of Illinois as a defendant, the analysis is straightforward. Because
       the General Assembly has “specifically prohibited making the State of Illinois a
       defendant or party in any court” (Sass v. Kramer, 72 Ill. 2d 485, 490 (1978)), the
       State may claim immunity and must be dismissed from the case. The only
       exception to this rule is if the legislature has, through clear and unequivocal
       statutory language, consented to suit and waived sovereign immunity. In re Special
       Education of Walker, 131 Ill. 2d 300, 303 (1989); People ex rel. Madigan v.
       Excavating & Lowboy Services, Inc., 388 Ill. App. 3d 554, 560 (2009). By way of
       example, the Illinois Public Labor Relations Act (5 ILCS 315/1 et seq. (West
       2012)), which is mentioned in the Immunity Act, contains a clear and unequivocal


                                               - 24 -
       consent to suit in circuit court. Section 25 of that act provides, “For purposes of this
       Act, the State of Illinois waives sovereign immunity.” 5 ILCS 315/25 (West 2012).

¶ 75        The foregoing analysis also applies to entities that are a part or arm of the State
       rather than a separate political unit, such as a municipality or local public entity.
       This is so because a lawsuit which makes an arm of the State a defendant is
       considered to be a suit against the State itself. People ex rel. Freeman v.
       Department of Public Welfare, 368 Ill. 505, 507 (1938) (“It is settled that a suit
       against a governmental agency which is a part, or division, of the State government
       is a suit against the State ***.”); Magna Trust Co. v. Department of Transportation,
       234 Ill. App. 3d 1068, 1070 (1992); Swope v. Northern Illinois Gas Co., 221 Ill.
       App. 3d 241, 242 (1991) (“A suit against a department or agency of the State is
       considered to be a suit against the State for immunity purposes.”); Gordon v.
       Department of Transportation, 109 Ill. App. 3d 1071, 1074 (1982). Questions may
       arise in individual cases as to whether a particular entity is properly considered part
       of the State or whether it is something else, and this may necessitate an examination
       of the nature of the entity being sued. See, e.g., Williams v. Medical Center
       Comm’n, 60 Ill. 2d 389, 393-94 (1975). However, if the entity is deemed an arm of
       the State, it is subject to the Immunity Act and may not be made a defendant in
       circuit court unless there is a clear statutory waiver of the immunity.

¶ 76        A lawsuit that makes a State official or employee a defendant requires a more
       involved analysis. An action that is brought nominally against a State official or
       employee in his personal capacity avoids the literal terms of the Immunity Act
       because a State official or employee, when sued only in his personal capacity, is not
       the “State of Illinois.” Nevertheless, such an action may, in certain circumstances,
       be subject to the Immunity Act. Loman v. Freeman, 229 Ill. 2d 104, 112-24 (2008).
       If, for example, a plaintiff suing a State employee in his personal capacity alleges
       that the employee negligently breached a duty sounding in tort, and that duty is
       “imposed on the employee solely by virtue of his state employment” (emphasis in
       original) (id. at 113), the Immunity Act applies. The claim may not go forward in
       circuit court but must be heard in the Court of Claims, the tribunal that has
       exclusive jurisdiction for tort claims brought against the State (705 ILCS 505/8(d)
       (West 2012)). See, e.g., Healy v. Vaupel, 133 Ill. 2d 295, 311 (1990) (holding that
       the claimed negligence of the defendants arose solely out of the performance of
       their duties as employees of Northern Illinois University and, therefore, exclusive
       jurisdiction lay in the Court of Claims). Similarly, if an action naming a State
       official in his personal capacity “ ‘could operate to control the actions of the State
                                                - 25 -
       or subject it to liability’ ” it is considered an action against the State and may not be
       heard in circuit court. Loman, 229 Ill. 2d at 113 (quoting Currie v. Lao, 148 Ill. 2d
       151, 158 (1992)). Treating such actions as ones against the State is necessary in
       order to prevent plaintiffs from circumventing the Immunity Act entirely by simply
       naming individual State officials and employees as defendants in their personal
       capacities. It is this concern that has given rise to the familiar rule that, in
       determining whether the Immunity Act applies, we do not look solely at the formal
       designation of the parties in the caption of the complaint. Rather, we consider the
       nature of the “ ‘issues involved and the relief sought.’ ” Loman, 229 Ill. 2d at 112.

¶ 77       Actions against State officials in their official capacities are treated differently.
       A lawsuit that makes a State official a defendant in his official capacity is “not a
       suit against the official but rather is a suit against the official’s office. [Citation.] As
       such, it is no different from a suit against the State itself.” Will v. Michigan
       Department of State Police, 491 U.S. 58, 71 (1989). See also, e.g., Smith v. Jones,
       113 Ill. 2d 126, 131 (1986) (the “ ‘official acts of State officers are in effect acts of
       the State itself’ ” (quoting Sass, 72 Ill. 2d at 492)); Magna Trust Co., 234 Ill. App.
       3d at 1070; Scott v. O’Grady, 975 F.2d 366, 369 (7th Cir. 1992). It follows,
       therefore, that a lawsuit making a State official a defendant in his official capacity
       is subject to the Immunity Act.

¶ 78       There is, however, an exception to this rule, which this court has referred to as
       the “officer suit” exception. See PHL, Inc. v. Pullman Bank & Trust Co., 216 Ill. 2d
       250, 260-61 (2005). Under this exception, if an official-capacity suit seeks only to
       compel the State official to conform his or her future conduct to a nondiscretionary
       statutory or constitutional rule, the Immunity Act will not apply. Ellis v. Board of
       Governors of State Colleges & Universities, 102 Ill. 2d 387, 395 (1984) (when the
       plaintiff “seeks to enjoin a State officer from taking future actions in excess of his
       delegated authority, then the immunity prohibition does not pertain”); Magna Trust
       Co., 234 Ill. App. 3d at 1070. The rationale given for this exception permitting
       prospective injunctive relief is that while a State official is violating a mandatory
       statutory or constitutional rule, that violation “ ‘strips [the] State officer of his
       official status *** [and] his conduct is not then regarded as the conduct of the State,
       nor is the action against him considered an action against the State.’ ” PHL, Inc.,
       216 Ill. 2d at 261 (quoting Moline Tool Co. v. Department of Revenue, 410 Ill. 35,
       37 (1951)). That is, the State official, although named as a defendant in his official
       capacity, is no longer considered the “State of Illinois.” The official is therefore not

                                                 - 26 -
       subject to the Immunity Act and may be enjoined to conform his or her future
       conduct to the law.

¶ 79      With the foregoing rules in mind, the defendants’ contention that they fall
       within the scope of the Immunity Act and that the circuit court therefore properly
       dismissed Leetaru’s complaint can be addressed. The two defendants, the
       University and Guenther, need to be considered separately.



¶ 80              The University Is the “State of Illinois” Within the Meaning
                                      of the Immunity Act
¶ 81       The majority begins its analysis by observing that Leetaru’s complaint, which
       makes the University a defendant, does not assert any claim against the State “as
       such.” Supra ¶ 43. The majority does not explain what legal significance, if any, the
       phrase “as such” is meant to have with respect to the University. When an
       institutional entity raises the Immunity Act as a defense to suit in circuit court, as
       was done in this case, the relevant question is whether the entity is an arm of the
       State and, therefore, entitled to invoke the Act. Answering that question should be
       the initial step in the analysis here. See, e.g., Association of Mid-Continent
       Universities v. Board of Trustees of Northeastern Illinois University, 308 Ill. App.
       3d 950, 953 (1999) (“in determining whether sovereign immunity applies, the
       analysis should focus first on whether an entity is considered an arm of the State”).

¶ 82       The first case from this court to address whether an entity was an arm of the
       State for purposes of the Immunity Act was Williams v. Medical Center Comm’n,
       60 Ill. 2d 389 (1975). In that case, this court considered whether a
       legislatively-created Medical Commission was part of the “State of Illinois” within
       the meaning of the Immunity Act by examining the Commission’s various statutory
       characteristics. Although the Commission had been created as a body politic, with
       the power to sue and be sued, it was also expressly and implicitly characterized as
       an arm of the State in numerous statutory provisions, including the Court of Claims
       Act. That act referenced the Commission by name and required that actions
       sounding in tort against the Commission be brought in the Court of Claims. Based
       on this, as well as other various factors, the court concluded that the Commission
       was an arm of the State and therefore came within the terms of the Immunity Act.
       Id. at 393-94.


                                               - 27 -
¶ 83        A year later, in Kane v. Board of Governors of State Colleges & Universities,
       43 Ill. App. 3d 315 (1976), our appellate court considered whether the Board of
       Governors of State Colleges and Universities was an arm of the State. At that time,
       the Board of Governors was an entity which encompassed five of the State’s public
       universities: Eastern Illinois University, Western Illinois University, Chicago State
       University, Northeastern Illinois University and Governors State University. Ill.
       Rev. Stat. 1973, ch. 144, ¶ 1001. 2 Applying the type of analysis undertaken in
       Williams, the Kane court concluded that the Board of Governors was the “State of
       Illinois” within the meaning of the Immunity Act. Kane, 43 Ill. App. 3d at 317-19.

¶ 84      Shortly after Kane, our appellate court held, on two occasions, that the
       University of Illinois is an arm of the State. See Tanner v. Board of Trustees of the
       University of Illinois, 48 Ill. App. 3d 680, 683-84 (1977); Watson v. St. Annes
       Hospital, 68 Ill. App. 3d 1048, 1051-52 (1979). The same result was also reached
       with respect to Southern Illinois University (Hoffman v. Yack, 57 Ill. App. 3d 744,
       747 (1978)), and Northern Illinois University (McGuire v. Board of Regents of
       Northern Illinois University, 71 Ill. App. 3d 998, 1000 (1979)). See also Liebman v.
       Board of Governors of State Colleges & Universities, 79 Ill. App. 3d 89, 91-92
       (1979) (holding that the Board of Governors was an arm of the State).

¶ 85        In 1984, in Ellis v. Board of Governors of State Colleges & Universities, 102
       Ill. 2d 387 (1984), this court took up the question addressed in Kane, i.e., whether
       the Board of Governors of State Colleges and Universities was an arm of the State.
       The court adopted the reasoning of Kane in toto and held that the Board of
       Governors was the “State of Illinois” within the meaning of the Immunity Act. In so
       holding, Ellis noted that a previous decision from this court, People ex rel. Board of
       Trustees of the University of Illinois v. Barrett, 382 Ill. 321, 343 (1943), had
       expressly concluded that the “University [of Illinois] was cloaked with sovereign
       immunity.” Ellis, 102 Ill. 2d at 393.

¶ 86      Following Ellis, Illinois courts have unanimously concluded that our four-year,
       public universities—including the University of Illinois—are the State, for
       purposes of the Immunity Act. See Schoeberlein v. Purdue University, 129 Ill. 2d
       372, 379-80 (1989) (recognizing that an action brought against a four-year Illinois
       public university would be subject to the Immunity Act); Healy, 133 Ill. 2d at 308

           2
             Subsequent legislation divided the universities into separate entities governed similarly to the
       University of Illinois. See generally Joseph Construction Co. v. Board of Trustees of Governors
       State University, 2012 IL App (3d) 110379.
                                                      - 28 -
       (noting that Northern Illinois University must “be considered a unit of State
       government”); Management Ass’n of Illinois, Inc. v. Board of Regents of Northern
       Illinois University, 248 Ill. App. 3d 599, 607 (1993); Raymond v. Goetz, 262 Ill.
       App. 3d 597, 605 (1994) (“The modern line of cases, decided since the enactment
       of the Immunity Act, is determinative and explicitly indicates the University [of
       Illinois] is an arm of the State.”); City of Chicago v. Board of Trustees of the
       University of Illinois, 293 Ill. App. 3d 897, 901 (1997); Association of
       Mid-Continent Universities v. Board of Trustees of Northeastern Illinois
       University, 308 Ill. App. 3d 950, 955-57 (1999); Peters v. Board of Trustees of
       Southern Illinois University, 351 Ill. App. 3d 1143, 1146-47 (2004); Joseph
       Construction Co. v. Board of Trustees of Governors State University, 2012 IL App
       (3d) 110379, ¶¶ 30-41; Carmody v. Thompson, 2012 IL App (4th) 120202, ¶ 20.
       See also, e.g., Kroll v. Board of Trustees of the University of Illinois, 934 F.2d 904,
       908 (7th Cir. 1991) (recognizing that the University is an arm of the State); Cannon
       v. University of Health Sciences/The Chicago Medical School, 710 F.2d 351,
       356-57 (N.D. Ill. 1983); Harvis v. Board of Trustees of the University of Illinois,
       744 F. Supp. 825, 827 (N.D. Ill. 1990); Bruno v. University of Illinois, 62 Ill. Ct. Cl.
       194 (2009) (treating breach of contract action against the University as one against
       the State); Kafka v. State, 35 Ill. Ct. Cl. 737 (1982) (same).

¶ 87      Under well-established case law, the University is an arm of the State.
       Leetaru’s complaint therefore makes the State of Illinois a defendant in circuit
       court.



¶ 88      The University Is Subject to the Immunity Act, Regardless of the Nature of the
                                         Relief Sought

¶ 89       Leetaru concedes that the University is the “State of Illinois” for purposes of the
       Immunity Act. Nevertheless, Leetaru contends that his suit may proceed in circuit
       court against the University under a general “prospective injunctive relief”
       exception to the Immunity Act. This exception, Leetaru maintains, permits lawsuits
       which make an arm of the State a defendant, if the plaintiff seeks only prospective
       injunctive relief. In effect, Leetaru’s contention is that the officer suit exception,
       which permits official-capacity suits for prospective injunctive relief against State
       officials, also applies to arms of the State such as the University here.


                                                - 29 -
¶ 90       In support of this contention, Leetaru relies on this court’s decision in Landfill,
       Inc. v. Pollution Control Board, 74 Ill. 2d 541 (1978), and appellate cases which
       have followed that decision (see, e.g., Rockford Memorial Hospital v. Department
       of Human Rights, 272 Ill. App. 3d 751, 755 (1995); Illinois State Employees Ass’n
       v. Department of Children & Family Services, 178 Ill. App. 3d 712, 717 (1989)). In
       Landfill, the plaintiff filed a complaint against the Pollution Control Board in
       circuit court seeking both a declaration that a certain procedural rule adopted by the
       Board was not authorized by the Environmental Protection Act and an order
       enjoining the Board from conducting any further proceedings under the rule. This
       court held that the rule was unauthorized. In the course of reaching that conclusion,
       the court made the following statement:

              “The Board’s contention, advanced for the first time on oral argument, that
          the action against the Board was barred by sovereign immunity, is also without
          merit. Landfill is not seeking to enforce a present claim against the State, but,
          rather, seeks a declaration that the Board is taking actions in excess of its
          delegated authority. Such an action does not contravene principles of sovereign
          immunity. See Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540,
          548; see also Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35,
          38.” Landfill, 74 Ill. 2d at 552.

       This language, Leetaru contends, supports his position because, in his view, he is
       not seeking to enforce a “present claim,” i.e., a remedy for past wrongs, against
       defendants. Instead, he is seeking only prospective injunctive relief to halt any
       further investigative proceedings by the University. Therefore, according to
       Leetaru, his suit against the University may proceed in circuit court.

¶ 91       To the extent that Landfill is read as holding that any direct action against an
       arm of the State is permissible in circuit court so long as only prospective injunctive
       relief from ultra vires actions is sought, it is questionable authority. Landfill’s
       analysis consisted of two sentences on an unbriefed issue. In support, Landfill cited
       to Bio-Medical Laboratories, Inc. v. Trainor, 68 Ill. 2d 540 (1977). That case
       involved a lawsuit brought against a State official in his official capacity and
       whether the officer suit exception was applicable. Id. at 548. Landfill did not
       explain why an exception which originated in the context of official-capacity suits
       was appropriate in a lawsuit brought against an arm of the State. The second case
       cited by Landfill, Moline Tool Co. v. Department of Revenue, 410 Ill. 35 (1951),
       held only that administrative review in circuit court of an agency decision that had
                                               - 30 -
       the force of a judicial determination did not violate principles of sovereign
       immunity. Moline Tool did not hold that direct actions against arms of the State
       were permissible in circuit court so long as only prospective injunctive relief is
       sought. Indeed, Moline Tool expressly observed that there is a “a real difference
       between an original action against the State or one of its officers and agencies, and
       a proceeding to review the determination of an agency of State government which,
       itself, has the force of a judicial determination.” Id. at 38.

¶ 92       Eight years after Landfill, in Smith v. Jones, 113 Ill. 2d 126 (1986), this court
       reached the opposite conclusion from Landfill and held that a direct action against
       an arm of the State is prohibited in circuit court, regardless of the nature of the relief
       sought. In Smith, this court considered a lawsuit brought by lottery ticket holders
       requesting declaratory and injunctive relief against the Illinois State Lottery and its
       director. This court acknowledged that the director could potentially be subject to
       the officer suit exception and the plaintiffs’ complaint with respect to the director
       had to be addressed in that light. Id. at 131-33. However, that was not the case with
       respect to the Illinois State Lottery, which was a division of the Department of
       Revenue and, therefore, an arm of the State. The court stated: “Of course, because
       of sovereign immunity the State or a department of the State can never be a proper
       party defendant in an action brought directly in the circuit court.” Id. at 132.
       Notably, Smith did not mention Landfill. The cases are in conflict.

¶ 93       The majority accepts Landfill as providing the correct statement of the law
       (supra ¶ 44), and leaves unresolved the conflict between Smith and
       Landfill—presumably because the defendants have not cited Smith or argued for its
       application here. I would address the conflict and resolve it in favor of Smith.

¶ 94        The rationale behind allowing lawsuits which seek prospective injunctive relief
       from ultra vires actions is that, while acting without statutory or constitutional
       authority, a State official is “stripped” of his official status and “ ‘his conduct is not
       then regarded as the conduct of the State, nor is the action against him considered
       an action against the State.’ ” PHL, Inc., 216 Ill. 2d at 261 (quoting Moline Tool
       Co., 410 Ill. at 37). Because it is the State official who is stripped of official status
       and not the arm of the State to which the official belongs, it necessarily follows that
       it is the official who must be made a defendant. And this is precisely how the rule
       has always been stated. As the majority itself explains, “ ‘ “[t]he presumption
       obtains that the State, or a department thereof, will not, and does not, violate the
       constitution and laws of the State, but that such violation, if it occurs, is by a State
                                                 - 31 -
       officer or the head of a department of the State and such officer or head may be
       restrained by a proper action instituted by a citizen.” ’ ” (Emphasis added.) Supra
       ¶ 48 (quoting City of Springfield v. Allphin, 74 Ill. 2d 117, 124 (1978), quoting
       Schwing v. Miles, 367 Ill. 436, 441-42 (1937)). See also, e.g., PHL, Inc., 216 Ill. 2d
       at 261; Herget National Bank of Pekin v. Kenney, 105 Ill. 2d 405, 411 (1985);
       County of Cook v. Ogilvie, 50 Ill. 2d 379, 383 (1972); Owens v. Green, 400 Ill. 380,
       409 (1948); Burke v. Snively, 208 Ill. 328, 337 (1904). Smith’s holding is
       completely consistent with this rule.

¶ 95       And Smith is not the only case to have recognized that the relevant State
       official, and not the arm of the State, must be made the defendant when a plaintiff
       seeks prospective injunctive relief from ultra vires actions. Numerous Illinois
       decisions so hold. See, e.g., Noorman v. Department of Public Works & Buildings,
       366 Ill. 216 (1937) (dismissing the state Department of Public Works in a suit
       seeking prospective injunctive relief but acknowledging that the director of the
       Department was subject to the officer-suit exception); Monroe v. Collins, 393 Ill.
       553 (1946) (holding that the state Department of Revenue had to be dismissed from
       a suit seeking prospective injunctive relief but that the director of the Department
       was subject to the officer-suit exception); Posinski v. Chicago, Milwaukee, St. Paul
       & Pacific R.R. Co., 376 Ill. 346 (1941) (dismissing the state Department of Public
       Works from a suit seeking prospective injunctive relief but addressing the
       applicability of the officer-suit exception to the director); Westshire Retirement &
       Healthcare Center v. Department of Public Aid, 276 Ill. App. 3d 514, 521-22
       (1995) (rejecting the plaintiff’s claim for injunctive relief against the Illinois
       Department of Public Aid and noting that “the attempt to enjoin an entire
       department of the State evinces an intent to control the actions of the State”); Local
       3236 of the Illinois Federation of State Office Educators v. Illinois State Board of
       Education, 121 Ill. App. 3d 160, 164 (1984); Gordon v. Department of
       Transportation, 109 Ill. App. 3d 1071, 1074-75 (1982).

¶ 96       Other jurisdictions have reached the same conclusion. The Supreme Court of
       Texas, for example, has held that, because lawsuits seeking prospective injunctive
       relief from ultra vires actions are “derive[d] from the premise that the ‘acts of
       officials which are not lawfully authorized are not acts of the State,’ [citation] it
       follows that these suits cannot be brought against the state, which retains immunity,
       but must be brought against the state actors in their official capacity.” City of
       El Paso v. Heinrich, 284 S.W.3d 366, 372-73 (Tex. 2009). See also, e.g., Doe v.
       Board of Regents of the University of Nebraska, 788 N.W.2d 264, 292 (Neb. 2010);
                                               - 32 -
        Ex parte Alabama Department of Transportation, 978 So. 2d 17, 22-23 (Ala.
        2007).

¶ 97         Federal courts, in determining what constitutes an action against a state for
        purposes of immunity under the eleventh amendment, also uniformly hold the
        same. 3 See, e.g., Papasan v. Allain, 478 U.S. 265, 276 (1986) (“ ‘[I]n the absence
        of consent a suit in which the State or one of its agencies or departments is named
        as the defendant is proscribed by the Eleventh Amendment.’ [Citation.] This bar
        exists whether the relief sought is legal or equitable.”); 13 Charles Alan Wright et
        al., Federal Practice and Procedure § 3524.3 n.53 (3d ed. 2008) (collecting cases).
        Indeed, the Seventh Circuit has held that under the eleventh amendment, in the
        absence of consent, a suit may not be brought directly against the University of
        Illinois, regardless of the nature of the relief sought. Kroll v. Board of Trustees of
        the University of Illinois, 934 F.2d 904, 907 (7th Cir. 1991).

¶ 98        Further, the Supreme Court has held that when a state official is made a
        defendant in a suit seeking prospective injunctive relief along with an arm of the
        State, the State entity must be dismissed. Alabama v. Pugh, 438 U.S. 781 (1978). In
        reaching this result, the Court emphasized that the question of who or what entity is
        made a party defendant is “not merely academic.” Id. at 782. As the Court
        explained, a state “has an interest in being dismissed from [an] action in order to
        eliminate the danger of being held in contempt if it should fail to comply with the
        mandatory injunction.” Id. The same concern is present here.

¶ 99        Consistent with Smith and the clear weight of authority, I would hold that in the
        absence of statutory consent, an arm of the State, such as the University here, may
        not be sued directly in circuit court, regardless of the nature of the relief sought. In
        the absence of consent, an arm of the State may be sued only through its officials.



¶ 100       The University of Illinois Act Does Not Constitute a Clear and Unequivocal
               Consent to Suit in the Circuit Court for the Action at Issue Here

¶ 101       Leetaru also maintains, however, that even if there is no general exception to
        the Immunity Act applicable to the University, there is a clear consent to suit in the

            3
              This court often looks for guidance to federal decisions defining the scope of eleventh
        amendment immunity when determining whether an action is one against the State. See, e.g., PHL,
        Inc., 216 Ill. 2d at 261 (citing Ex Parte Young, 209 U.S. 123 (1908)).
                                                    - 33 -
        University of Illinois Act. 110 ILCS 305/0.01 et seq. (West 2012). The appellate
        court below rejected this argument.

¶ 102      Section 1 of the University of Illinois Act provides:

                “§ 1. The Board of Trustees of the University of Illinois shall be a body
           corporate and politic, and by that name and style shall have perpetual
           succession, have power to contract and be contracted with, to sue and be sued,
           provided that any suit against the Board based upon a claim sounding in tort
           must be filed in the Court of Claims, to plead and be impleaded, to acquire,
           hold, and convey real and personal property; to have and use a common seal,
           and to alter the same at pleasure; to make and establish by-laws, and to alter or
           repeal the same as they shall deem necessary, for the management or
           government, in all its various departments and relations, of the University of
           Illinois, for the organization and endowment of which provision is made by this
           act.” 110 ILCS 305/1 (West 2012).

¶ 103       Leetaru focuses, in part, on the “sue and be sued” language in this provision.
        According to Leetaru, this language constitutes a clear and unequivocal waiver of
        the University’s statutory immunity for any claims other than tort claims. Since his
        complaint does not sound in tort, Leetaru contends that it may properly be brought
        in circuit court. I disagree.

¶ 104       Appellate court decisions have examined at length the question of whether our
        public universities’ enabling acts, including the University of Illinois Act,
        constitute waivers of the universities’ sovereign immunity. See Raymond v. Goetz,
        262 Ill. App. 3d 597 (1994) (and authorities discussed therein); Joseph
        Construction Co. v. Board of Trustees of Governors State University, 2012 IL App
        (3d) 110379. These decisions have concluded that “since the enactment of
        legislative sovereign immunity, the focus of the determination of whether an entity
        may be sued in the circuit court is upon whether the entity is an arm of the State
        based upon its characteristics, not the terms of the entity’s enabling legislation.”
        Raymond, 262 Ill. App. 3d at 603-04. That is, the university enabling statutes, like
        the one at issue here, do not constitute a waiver of immunity under the Immunity
        Act.

¶ 105       Leetaru does not directly challenge these decisions. Instead, he contends they
        are distinguishable. Leetaru notes that Raymond and Joseph Construction Co.,
        were contract cases and, further, that the Court of Claims expressly states that
                                               - 34 -
        actions for breach of contract brought against the State must be heard in that
        tribunal. Leetaru points out, however, that the Court of Claims Act says nothing
        about complaints seeking prospective injunctive relief. Leetaru notes that in City of
        Chicago v. Board of Trustees of the University of Illinois, 293 Ill. App. 3d 897, 903
        (1997), the appellate court held that, because “[n]o provision” of the Court of
        Claims Act required that a complaint seeking declaratory relief against the State
        had to be filed in the Court of Claims, such a complaint could necessarily proceed
        in circuit court. 4 Using similar logic, Leetaru contends that his suit seeking
        injunctive relief may be heard in circuit court.

¶ 106       Leetaru’s argument misapprehends the nature of the Court of Claims Act.
        Immunity from suit in the circuit courts is established by the Immunity Act, not the
        Court of Claims Act. See, e.g., Brandon v. Bonell, 368 Ill. App. 3d 492, 510 (2006)
        (“the State Lawsuit Immunity Act, not the Court of Claims Act, is determinative of
        whether sovereign immunity applies to a State entity”); Association of
        Mid-Continent Universities, 308 Ill. App. 3d at 954. The Court of Claims Act is an
        exception to sovereign immunity. It is a consent by the State to be sued in the Court
        of Claims for the various causes of action set forth in that act. The fact that the State
        has not, through legislative enactment, expressly consented to claims seeking
        injunctive relief in the Court of Claims does not mean that immunity for those
        claims does not exist under the Immunity Act.

¶ 107       The University of Illinois is an arm of the State and thus falls within the plain
        meaning of the Immunity Act. Pursuant to Raymond and Joseph Construction Co.,
        no provision of the University of Illinois Act provides a clear and unequivocal
        waiver to the type of action at issue here. I would therefore affirm the judgment of
        the circuit court dismissing the University from this action.



¶ 108                 Leetaru’s Claims Against Guenther Do Not Fall Within the
                                        Officer Suit Exception

¶ 109       Leetaru’s suit also names as a defendant Howard R. Guenther, in his official
        capacity as Associate Vice Chancellor for Research at the University. Leetaru does
        not dispute that Guenther is a State official. Thus, because the complaint makes

            4
             Of note, the Court of Claims, while declining to enter injunctive relief, has stated that it has the
        power to enter declaratory relief. Ace Coffee Bar, Inc. v. University of Illinois, 51 Ill. Ct. Cl. 395,
        397-99 (1999) (“This Court can grant declarations in appropriate cases.”).
                                                         - 35 -
        Guenther a defendant in his official capacity, the suit against him is “a suit against
        the State itself.” Magna Trust Co., 234 Ill. App. 3d at 1070. Leetaru maintains,
        however, that the officer suit exception is applicable here.

¶ 110        The officer suit exception (in federal courts, the Ex parte Young doctrine),
        permits an official-capacity lawsuit to enjoin “ ‘a State officer from taking future
        actions in excess of his delegated authority.’ ” (Emphasis omitted.) PHL, Inc., 216
        Ill. 2d at 268 (quoting Ellis, 102 Ill. 2d at 395). See also, e.g., Seminole Tribe of
        Florida v. Florida, 517 U.S. 44, 73 (1996) (a suit may be brought against “a state
        official when that suit seeks only prospective injunctive relief in order to ‘end a
        continuing violation of federal law’ ”). To fall within this ultra vires exception, the
        suit must not contest a state official’s exercise of discretion, but rather must allege
        that the official acted without legal authority. PHL, Inc., 216 Ill. 2d at 268 (quoting
        Ellis, 102 Ill. 2d at 395).

¶ 111       Retroactive relief for past violations of the law, including monetary
        compensation, is not permitted under the officer suit exception. See Green v.
        Mansour, 474 U.S. 64, 68 (1985); Quern v. Jordan, 440 U.S. 332, 346-49 (1979);
        Edelman v. Jordan, 415 U.S. 651, 664-71 (1974). By limiting the available relief to
        prospective injunctions, the officer suit exception minimizes the encroachment into
        the interests of the State while, at the same time, permitting the enforcement of
        legal norms. Senn Park Nursing Center v. Miller, 104 Ill. 2d 169, 188 (1984)
        (“[W]here the defendant officer act[s] in excess of his statutory authority, the rights
        of the plaintiffs to be free from the consequences of his action outweigh the interest
        of the State which is served by the sovereign immunity doctrine.”); Moline Tool
        Co., 410 Ill. at 37 (not all suits against state officers are barred because “[s]uch a
        holding would have blunted the effectiveness of many constitutional guaranties by
        preventing their judicial enforcement”).

¶ 112       Because the officer suit exception is limited to prospective relief, the complaint
        must allege an ongoing violation of law. See, e.g., DeBauche v. Trani, 191 F.3d
        499, 504-05 (4th Cir. 1999) (the exception “applies only when there is an ongoing
        violation of federal law that can be cured by prospective relief. It does not apply
        when the alleged violation of federal law occurred entirely in the past”); 13 Charles
        Alan Wright et al., Federal Practice and Procedure § 3524.3 n.62 (3d ed. 2008)
        (collecting cases). If the alleged violation of law is completed, the only remedy
        available would be retrospective compensatory damages which are not permitted
        under the exception. On the other hand, if the alleged violation has not yet occurred,
                                                - 36 -
        the issue is not ripe. See Bio-Medical Laboratories, 68 Ill. 2d at 546. Thus, for a
        plaintiff to successfully invoke the officer suit exception the plaintiff must allege an
        ongoing violation of law and it must be possible to stop that violation through the
        issuance of an injunction. See Verizon Maryland Inc. v. Public Service Comm’n,
        535 U.S. 635, 645 (2002) (“In determining whether the doctrine of Ex parte Young
        avoids an Eleventh Amendment bar to suit, a court need only conduct a
        ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation
        of federal law and seeks relief properly characterized as prospective.’ [Citation.]”).

¶ 113       Leetaru’s complaint fails to invoke the officer suit exception because it alleges
        only past wrongdoing by Guenther during stages one and two of the University’s
        investigation. For example, Leetaru alleges that Guenther drafted the stage two
        inquiry report, which should have been prepared by the inquiry team. This is a past
        violation, not an ongoing violation that can be cured by prospective relief. Indeed,
        Leetaru does not allege any ongoing statutory or constitutional violation that can be
        corrected by prospective relief. See supra ¶ 34. Further, if there were any doubt
        that Leetaru’s allegations regarding the handling of stages one and two are all
        assertions of past wrongdoing, it was resolved at oral argument. There counsel for
        defendants informed this court that “this investigation has been completed now,
        and they’re in the penalty phase of it.” 5

¶ 114      To be sure, Leetaru’s complaint does pray for prospective injunctive relief.
        Count I of Leetaru’s complaint concludes by stating:

            “WHEREFORE, the Plaintiff, KALEV LEETARU, prays for a Preliminary
            Injunction to restrain the University of Illinois and Howard Guenther in his
            official capacity from proceeding with the Investigation based upon all of the
            allegations set forth herein, and for his costs of suit.”

        Count II concludes by stating:

            “WHEREFORE, the Plaintiff, KALEV LEETARU, prays for a Permanent
            Injunction to restrain the University of Illinois and Howard Guenther in his


            5
             In light of counsel’s statement it is likely that it is no longer possible to grant plaintiff any
        prospective injunctive relief and that this case is therefore moot. The majority, if it so chose, could
        ask the parties to address the issue through supplemental briefing. See, e.g., In re Marriage of
        Donald B., 2014 IL 115463, ¶ 20. However, the majority has chosen not to acknowledge counsel’s
        statement, leaving the matter to be raised on remand.

                                                        - 37 -
            official capacity from proceeding with the Investigation based upon all of the
            allegations set forth herein, and for his costs of suit.”

        In short, in the words of Leetaru’s complaint, he is seeking “to have the
        Investigation stopped and the University enjoined from continuing the process
        against him.”

¶ 115       However, “[s]imply asking for injunctive relief and not damages does not clear
        the path for a suit.” (Emphasis omitted.) Ulaleo v. Paty, 902 F.2d 1395, 1399 (9th
        Cir. 1990). The official conduct that the plaintiff seeks to stop must itself be
        unlawful. PHL, Inc., 216 Ill. 2d at 268 (the officer suit exception applies to stop “ ‘a
        State officer from taking future actions in excess of his delegated authority’ ”
        (emphasis omitted) (quoting Ellis, 102 Ill. 2d at 395)).

¶ 116       In this case, the “future action” that Leetrau wants Guenther to stop is any
        further investigation into the alleged research misconduct. However, there is no
        statutory, administrative or constitutional rule which prohibits Guenther from
        conducting such an investigation. If, for example, there were a mandatory statute or
        regulation which stated that University officials are prohibited from investigating
        research misconduct and that such investigations must be conducted by another
        entity, then Leetaru’s argument would be persuasive. But there is no such rule.
        Indeed, as the majority acknowledges, “Leetaru does not question the right of
        defendants to investigate research misconduct by graduate students at the
        University of Illinois.” Supra ¶ 49. Leetaru, in short, is not seeking to stop an
        unauthorized action of a State official. Quite the contrary, Leetaru is seeking to stop
        something that is expressly permitted. The officer suit exception therefore does not
        apply. See, e.g., Betts v. Department of Revenue, 78 Ill. App. 3d 102, 108 (1979)
        (plaintiffs’ complaint properly dismissed under Immunity Act because it was “not
        directed towards curbing unconstitutional or illegal acts by the defendants; if
        granted, this injunctive relief would curtail even entirely legal and proper
        prosecutions or investigations”).

¶ 117       The majority attempts to get around this problem by rewriting plaintiff’s
        complaint. At the outset of its opinion, the majority acknowledges, correctly, that
        Leetaru’s complaint “seeks to halt the proceedings.” Supra ¶ 1. Later, however, the
        majority asserts that Leetaru is not actually seeking to have the investigation
        stopped. Instead, the majority explains, Leetaru is only seeking to have defendants
        “adhere to the policies and procedures promulgated by the University” (supra ¶ 49)

                                                 - 38 -
        as they move forward with the disciplinary process (supra ¶ 51). Amended in this
        way, according to the majority, the complaint may proceed in circuit court.

¶ 118        There are at least two problems with this reasoning. First, the majority makes
        no attempt to explain why it is appropriate to amend Leetaru’s complaint sua
        sponte to alter the relief sought or why it is fair to defendants to permit such an
        amendment at this late date. Because such substantive amendments are generally
        prohibited on appeal, this is clear error. See Sylvester v. Chicago Park District, 179
        Ill. 2d 500, 511 (1997) (Supreme Court Rule 362, which addresses amendment of
        pleadings in a reviewing court, does not permit new issues to be raised on appeal);
        Tomm’s Redemption, Inc. v. Hamer, 2014 IL App (1st) 131005, ¶ 14 (“A complaint
        cannot be amended after final judgment in order to add new claims and theories or
        to correct other deficiencies.”).

¶ 119       Second, even if it were appropriate to amend Leetaru’s complaint as the
        majority has done, the officer suit exception would still be inapplicable because the
        complaint does not allege an ongoing violation of law. As noted, every violation of
        policies and bylaws alleged by Leetaru occurred in the past. These are the only
        allegedly unlawful actions identified by the majority. Pointing to the future stages
        of the University’s investigation is of no help since the majority does not allege that
        any policy or bylaw will be violated during these future stages or that defendants
        have threatened to commit any future violations. Therefore, any injunctive relief
        would necessarily be premature. See Adarand Constructors, Inc. v. Pena, 515 U.S.
        200, 210-11 (1995) (the fact that a plaintiff alleges past injury “ ‘does nothing to
        establish a real and immediate threat that he would again’ suffer similar injury in
        the future” warranting injunctive relief (quoting City of Los Angeles v. Lyons, 461
        U.S. 95, 105 (1983))); Bio-Medical Laboratories, 68 Ill. 2d at 546. This is why the
        officer suit exception requires an allegation of an ongoing violation of law.

¶ 120       To put the point in more concrete terms, assume that, following remand to the
        circuit court, Leetaru proves that the University’s Policy and Procedures and
        Bylaws are not simply internal guidelines but are legally enforceable rules and, in
        addition, proves that the University and Guenther violated those rules as alleged in
        the complaint. What injunctive order would be entered by the circuit court? The
        court could not order the University to begin the investigation again. That would be
        impermissible retrospective relief. Nor could the court enter any order regarding
        future conduct because Leetaru has not alleged any ongoing violations of law. The
        majority’s reasoning would require the circuit court to enter an order directing
                                                - 39 -
        defendants to conform their conduct to rules that have not yet been violated or
        threatened to be violated. This is not what is intended under the officer suit
        exception.

¶ 121       To come within the officer suit exception, a plaintiff must assert both an
        ongoing legal violation and the availability of truly prospective relief. Leetaru’s
        complaint does not meet these requirements. Therefore, the officer suit exception is
        inapplicable.



¶ 122                                     Lack of Remedy

¶ 123      Leetaru acknowledges that if he can establish that the University’s Policy and
        Procedures and Bylaws are legally enforceable rules, he may seek relief in the
        Court of Claims for any monetary damages caused by defendants as a result of their
        conduct. However, Leetaru maintains that this is inadequate since what he is
        seeking is injunctive relief to stop the University and Guenther from proceeding
        any further with the investigation and injunctive relief has, to date, not been
        available in the Court of Claims. Therefore, Leetaru asserts, he must be permitted
        to go forward with his complaint in the circuit court. I disagree. As Justice
        Harrison, then on the appellate court, stated:

               “[Plaintiff] protests that it should nevertheless be allowed to proceed in
           circuit court because the Court of Claims has no authority to grant the remedy
           of specific performance, which is what it seeks. A similar argument was
           expressly considered and rejected by our supreme court in Ellis v. Board of
           Governors (1984), 102 Ill. 2d 387, 395 ***. In that case, the court held that
           where, as here, a plaintiff seeks redress from the State for a wrong which has
           already occurred, he will only be permitted to proceed in the Court of Claims,
           even if he will thereby lose the option of obtaining injunctive relief. While the
           [plaintiff] may regard this limitation as unfair, we can only refer to our supreme
           court’s observation that ‘ “[i]f the inequities inherent in the doctrine of
           sovereign immunity are to be remedied, it is for the legislature and not this court
           to act.” ’ Patzner v. Baise (1990), 133 Ill. 2d 540, 548 ***, quoting S.J. Groves
           & Sons Co. v. State (1982), 93 Ill. 2d 397, 407 ***.” Magna Trust Co., 234 Ill.
           App. 3d at 1071-72.



                                               - 40 -
¶ 124                                Special Sovereignty Issues

¶ 125       Finally, even if a lawsuit properly invokes the officer suit exception, sovereign
        immunity may still bar the suit if the requested relief invades “special sovereignty
        issues.” Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 281-83 (1997)
        (discussing Ex parte Young). Defendants contend that such issues are at stake here.
        Defendants maintain that allowing Leetaru’s lawsuit to proceed in circuit court
        would result in judicial interference in the academic freedom of the University, an
        area in which courts have traditionally been reluctant to interfere. See, e.g., Hosty v.
        Carter, 412 F.3d 731, 736 (7th Cir. 2005) (“academic freedom includes the
        authority of the university to manage an academic community and evaluate
        teaching and scholarship free from interference by other units of government,
        including the courts”); Brian A. Snow & William E. Thro, The Significance of
        Blackstone’s Understanding of Sovereign Immunity for America’s Public
        Institutions of Higher Education, 28 J.C. & U.L. 97, 125 (2001) (observing that
        “the academic freedom of a state university” is arguably a special sovereignty
        issue). Therefore, according to defendants, the officer suit exception should not
        apply.

¶ 126       Because I have concluded that the officer suit exception is inapplicable in this
        case, it is not necessary for me to address this argument. The majority, however,
        having concluded that the exception applies, does need to address it. The majority
        opinion does not do so and, therefore, is incomplete.

¶ 127      For the foregoing reasons, I respectfully dissent.



¶ 128      JUSTICES FREEMAN and THEIS join in this dissent.




                                                 - 41 -
