ROSEANN ZIEGLER v. THE STATE OF ILLINOIS (2002)

ORDER

This claim is brought against the Clerk of the Circuit Court of Cook County as a State officer, seeking damages from the State alleged to arise out of the Claimant's employment and discharge by the clerk's office: Count I alleges violations of the Americans With Disabilities Act (42 U.S.C.//121 11-17) (the ADA); Count II alleges constructive discharge on the basis of a disability; Count III alleges intentional infliction of emotional distress. This case is before us on the Respondent's motion to dismiss, which attacks the Count I federal ADA claim as beyond the jurisdiction of this court. The claimant has objected to the motion.

Jurisdiction: Claims against the Clerk

We must dismiss this claim against a clerk of the circuit court. As we recently held, payment of the liabilities of the circuit court clerks are, by statute (as expenses), the responsibility of the respective counties, notwithstanding the clerks status as non-judicial of ficer[s] of the judicial branch of the State government as our Supreme Court held in Drury v. County of McLean, 89 Ill. 2d 417, 433 N.E.2d 66 (1982).

In Washlow v. State of Illinois, 54 Ill.Ct.Cl. 25 (No. 97 CC 3794) (2001) (consolidated opinion with Washington v. State of Illinois [State's Attorney]), we held that the statutory responsibility for paying liabilities of the circuit court clerks lay in the counties, and that the State lacked respondeat superior liability for those elected officers (following Moy v. County of Cook, 159 Ill.2d 519, 640 N.E.2d 926 (1994)), and therefore a suit in this court seeking redress from the State treasury for such claimed liabilities either does not lie at all or may not be pursued here until the Claimant has fully exhausted his or her alternative source of recovery from the appropriate county under the exhaustion requirements of/25 of the Court of Claims Act (705 ILCS 505/25) and our Rule 60 (74 Ill.Adm.Code/790.60). Accordingly, these claims cannot now be maintained in this court, and must be dismissed for that reason, leaving the Claimant to pursue her remedies in the circuit court or in the Illinois Human Rights Commission or both.

That would fully dispose of this claim in this court, except for the additional arguments advanced as to the Count I ADA claim, which must be separately addressed.

Jurisdiction: The federal ADA claim

Claimant contends that this court has subject matter jurisdiction over ADA claims against the State of Illinois and its officers as a matter of federal constitutional law. Citing Erickson v. Board of Governors of State Colleges and Universities, 207 F.3d 945 (7th Cir. 2000) (Eleventh Amendment bars private federal court action to enforce the ADA against the State, which nevertheless is enforceable in state courts), and People ex rel. Department of Transportation v. Cook Development Co. 274 Ill.App. 3d 175, 653 N.E.2d 843 (1st Dist. 1995) (federal civil rights claim against State barred in circuit court, but not barred in Illinois Court of Claims due to unavailability in claims court of some remedies contemplated by the federal law), the claimant argues that this court has a federal constitutional duty, and therefore has jurisdiction as a matter of federal law, to adjudicate ADA claims against the State. We disagree.

This court is a creature of Illinois statute, and our limited jurisdiction is solely what the General Assembly has granted by law. If a subject matter is not enumerated or encompassed by the jurisdictional grant in our enabling Act (/8, Court of Claims Act; 705 ILCS 505/8), and if jurisdiction over that subject is not granted by another Illinois statute, that subject does not lie within our adjudicatory jurisdiction to hear and determine claims ... against the State (ibid.).1 Federal statutory and constitutional claims are among the subjects that are not mentioned in/8 of the Court of Claims Act, our primary jurisdictional statute, and thus this court has long held that it lacks jurisdiction over claims arising under federal law.

Claimant nevertheless insists that this court has set the precedent of adjudicating federal claims, citing a tort claim in which this court applied maritime law, Spivey Marine & Harbor Service Co. v. State of Illinois, 46 Ill.Ct.Cl.41, 48-49 (1994) (collision between boat and State bridge) (Patchett, J.). However, our application of maritime law to a maritime tort that occurred in Illinois does not support Claimant's argument for general federal law or federal claim jurisdiction of this court under/8 of the Court of Claims Act.

Maritime or admiralty law -- the law of the sea -- is a body of law that is often characterized as federal or international, but which is the generally accepted body of law that governs maritime activities and occurrences on navigable waters. It is settled in the United States that our federal courts have exclusive jurisdiction over in rem admiralty actions, and that the federal and state courts have concurrent jurisdiction to adjudicate maritime law in in personam actions. Under the saving to suitors clause of the Judiciary Act of 1789, now recodified as 28 U.S.C./1331(1) (... saving to suitors in all cases all other remedies to which they are otherwise entitled), state courts have concurrent jurisdiction to apply maritime law within their own jurisdictions so long as they have personal jurisdiction over the parties and do not make new inconsistent admiralty law. The Supreme Court summarized the law in American Dredging Co. v. Miller, 510 U.S. 443, 446-447 (1994):

... state courts may not provide a remedy in rem for any cause of action within the admiralty jurisdiction. Red Cross Line v. Atlantic Fruit Co. [citation omitted] (1924). * * * In exercising in personam jurisdiction, however, a state court may adopt such remedies, and ... attach to them such incidents, as it sees fit so long as it does not attempt to make changes in the substantive maritime law Madruga v. Superior Court of Cal., County of San Diego [citation omitted] (1954) .... That proviso is violated when the state remedy works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations. Southern Pacific Co. v. Jensen [citation omitted] (1917).

Thus state courts can and do apply maritime law, particularly in damage claims (which do not infringe federal jurisdiction over in rem suits against vessels) as a species of common law, i.e., the common law of the sea. Thus, in the litigation arising out of the Great Chicago Flood of 1993, in which tort claims were alleged to have arisen on and under the Chicago River (a navigable waterway within Illinois), and admiralty law was invoked but disputed as the governing law, our appellate court held that the issue was one of choice of law and not of jurisdiction to apply admiralty law. In re Chicago Flood Litigation (Commercial Union v. City of Chicago), 308 Ill.App. 3d 314, 719 N.E.2d 1117 (1999)(applying maritime law) (Rakowski, J.), leave to appeal denied, _ Ill.2d _ (1999). The same is true in this court, at least for tort claims.

This court has jurisdiction over the State and has subject matter jurisdiction over cases sounding in tort if a like cause of action would lie against a private person or corporation in a civil suit (/8(d), Court of Claims Act (705 ILCS 505/8(d)), wherever in Illinois the tort arises. That plainly encompasses torts on navigable waters -- where maritime law governs. (See, discussion in In re Chicago Flood Litigation, supra, 308 Ill.App. 3d at 323-324, 719 N.E.2d at 1124-1125.) An admiralty tort is still a tort.

A tort occurring on navigable waters in Illinois is actionable in Illinois courts for damages, In re Chicago Flood Litigation, supra, and if the State is the alleged tortfeasor is actionable in this court, so long as the applicable admiralty law grants a damages remedy that is available here. In Spivey Marine, supra, this court awarded damages for a maritime tort in accordance with the governing admiralty law (with legislative ratification). Spivey Marine, supra, is a precedent for this court applying what may be characterized as the common maritime law of Illinois as much as that body of law may also be characterized as federal law. Spivey Marine not a jurisdictional precedent for adjudication of federal law claims generally by this court: it was a straightforward application of our explicit/8(d) tort jurisdiction.

Section/8(d), however, has never been construed to extend to federal statutory torts --i.e., to a statutory cause of action created by Congress. We do not do so now.

Moreover, despite Claimant's enthusiastic argument for a federal constitutional right to jurisdiction in this state statutory court, we fail to find any judicial decision based on the Eleventh Amendment or any other provision of the U.S. Constitution that even suggests that a federal mandate emanates from the Constitution or from the Congress that grants jurisdiction to a state court to adjudicate a federal claim where the state law source of the state court's jurisdiction does not grant subject matter jurisdiction over the claim. We are unaware of any such federalization of state court jurisdiction.

In Erickson, supra, the Seventh Circuit stated that Illinois may not exclude claims based on federal law (207 F.3d at 952). From that pronouncement, claimant reasons that this court, as the only Illinois court with jurisdiction over the State under Illinois law, must be available to entertain ADA claims against the State. Whatever the merits of Erickson's call for equal treatment of ADA claims by the states, Illinois has not chosen to vest this court with jurisdiction over federal claims in general nor over ADA claims in particular. The Erickson court did not say that the Congress or the Constitution has vested ADA jurisdiction in this state court.2

Cook Development Co., supra, also lends no authority for Claimant's federal jurisdiction theory. That court assumed, without consideration, that this court has jurisdiction over 42 U.S.C./1983 federal civil rights claims. That court rejected the argument that this court of claims could not exercise jurisdiction over such civil rights claims (assuming it had jurisdiction in the first place) because of the unavailability in this court of certain remedies that the federal statues permit. The appellate court held -- only -- that this court was not precluded from exercising jurisdiction for that reason. Cook Development Co. did not hold that federal law created jurisdiction in this court.

The Seventh Circuit's call for a state forum for ADA claims against the State may arguably be satisfied by the Illinois Human Rights Commission, whose jurisdiction extends to the State and its officials under the Illinois Human Rights Act (775 ILCS 5) (the HRA), which encompasses most if not all of the substance of the ADA, as we recently observed in Cortright v. State of Illinois, (No. 00 CC 2519) (2001) (Human Rights Commission's jurisdiction is primary and is subject to judicial review under the Administrative Review Law, and thus when exercised supersedes any/8(a) jurisdiction of this court over HRA claims). Whether or not the Human Rights Commission satisfies the federal courts call for an Illinois remedy for ADA claims against the State of Illinois, under current law this court is not part of that debate.

In the absence of a supporting statutory grant of jurisdiction to this court over federal ADA claims, we are required to reject this Claimant's ADA claim for want of subject matter jurisdiction, as well as for the reason of primary county financial responsibility for the Clerk's liabilities, discussed ante.

Conclusion

For the foregoing reasons, it is hereby ORDERED:

1. Count I is dismissed with prejudice for want of subject matter jurisdiction; and

2. Counts II and III of this claim are dismissed without prejudice, subject to refiling after exhaustion of claimant's remedies against the Clerk and Cook County.

EPSTEIN, J.