A state appeals panel has agreed a man John Marshall Law School expelled for poor academics can’t press a lawsuit in circuit court because the University of Illinois now owns the institution.
Bishoy Abo-Saif’s first lawsuit against the Marshall school ended with a settlement offering him readmission to the juris doctor program pending the results of a summer 2018 class. The private school, which enrolled Abo-Saif in the Summer College to Assess Legal Education Skills Program at no cost, determined his performance to be unsatisfactory before its December 2018 sale to University of Illinois.
Abo-Saif filed a breach of settlement lawsuit in 2020, seeking financial damages and another chance to requalify for admission. U of I moved to dismiss, claiming sovereign immunity as a public institution and saying the complaint was appropriate for Illinois Court of Claims, not Cook County Circuit Court. Judge Caroline Moreland granted that motion, a ruling Abo-Saif challenged before the First District Appellate Court.
Justice Nathaniel Howse wrote the opinion, issued June 30; Justices Terrence Lavin and Cynthia Cobbs concurred.
According to Howse, Moreland based her ruling on a finding that, although Marshall was a private school at the time of the alleged contractual brief, its new public owner is entitled to sovereign immunity protection from the lawsuit.
Abo-Saif’s initial complaint was a federal lawsuit, alleging discrimination based on his cerebral palsy, but he didn’t repeat those allegations in his 2020 lawsuit against the University of Illinois Board of Trustees. That complaint relied on the asset transfer agreement in which the university agreed to assume Marshall’s liabilities.
The panel said three state laws influenced the opinion.
“The State Lawsuit Immunity Act provides that the state shall not be made a defendant or party in any court except as provided in the Court of Claims Act,” Howse wrote. “The Court of Claims Act vests the court of claims with exclusive jurisdiction over ‘all claims against the state founded upon any contract entered into with the State of Illinois.’ The University of Illinois Act states (trustees) shall have the 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.’ ”
Abo-Saif insisted he never entered into a contract with a state entity and alternatively argued his breach of contract allegation and pursuit of declaratory judgment aren’t tort claims, which he said are excused from sovereign immunity protection.
The university’s “right to sovereign immunity is granted by statute and exists independently of the settlement at issue in this case,” Howse wrote. “Defendant cannot implicitly waive its sovereign immunity solely by assuming an obligation that did not originally obligate the state because the state must expressly consent to a waiver of sovereign immunity.”
Howse further explained the only way for Abo-Saif to overcome the immunity would be citing an explicit waiver from the General Assembly, “a waiver which does not exist here.” It also said Abo-Saif’s argument about the law governing the university and its liability “has been considered and consistently rejected by this court and our supreme court.”
Had Abo-Saif pursued only the declaratory judgment, the panel said, his complaint might have been allowed to stand. But the claim for monetary damages can only be heard in claims court, Howse explained, meaning Judge Moreland was correct to dismiss the case.