“While sovereign immunity from liability and governmental immunity from statutes of limitation shared a philosophical origin and have the similar effect of creating a preference for the sovereign over the ordinary citizen, we do not believe that the abolition of the first of these doctrines requires abandonment of the second.”
How later courts described this case
- “While sovereign immunity from liability and governmental immunity from statutes of limitation shared a philosophical origin and have the similar effect of creating a preference for the sovereign over the ordinary citizen, we do not believe that the abolition of the first of these doctrines requires abandonment of the second.”
- municipality had a “continuing responsibility” under a state statute “to ensure [ ] construction and maintenance for the use of the public.”
- providing that the central question is whether the municipality is asserting a “public right”
- abolition of immunity from liability does not require abolition of immunity from limitations
Written by the judges who cited it.
The opinion
JUSTICE CLARK, dissenting:
The court today has said that it did not believe that the abolition of sovereign immunity in this State meant that governmental immunity from statutes of limitations was also abolished. The detailed delineation of the evolution of what the majority construes as different doctrines is irrelevant in view of section 4 of article XIII of the 1970 Constitution, which provides that “Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.”
Pursuant to section 4 of article XIII, the legislature enacted Public Act 77—1776 (Ill. Rev. Stat. 1979, ch. 127, par. 801), which provides that the State of Illinois may not be made a defendant or a party in any court except as set forth in the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.1 et seq.). While the legislature chose to reinstate a more limited avenue of relief for claims against the State of Illinois in the form of the Court of Claims Act, no such action was taken concerning municipalities. Today we are allowing the city of Shelbyville to hide beneath a cloak of immunity that the Constitution of 1970 eliminated and that the General Assembly chose not to provide for municipalities. I feel that the majority winds its way around a very thin analytical path while ignoring a plain and straightforward reading of the 1970 Constitution.
The majority attempts to draw a distinction between the purpose of immunization of the sovereign against statute-of-limitations defenses and the purpose of immunizing the sovereign from claims made against it. In my opinion, it is a distinction without merit.
The purpose of article XIII, section 4, of the 1970 Illinois Constitution’s abolition of sovereign immunity was to repudiate the sovereign’s preference in common law over its citizens and thereby debunk the myth that “the king can do no wrong.”
It is not reasonable then to construe section 4 of article XIII as allowing the proposition that “time does not run against the king” to remain in effect.
That is, however, precisely the construction given by the majority in permitting the city of Shelbyville to bring this action 13 years after the event, and seven years after the statute of limitations had run.
I believe that, in abolishing local government’s immunity from suit, the framers of the 1970 Constitution clearly intended that the sovereign and citizens be on equal footing. If the city of Shelbyville can raise the defense of improper delay against a citizen suing it, there is no legitimate reason why a citizen being sued by the city of Shelby-ville should not be able to raise the same defense. The majority today has extended to the city of Shelbyville that which the legislature refused to and the result of which is to subject the defendant to a suit that it would not face had the plaintiff been any private plaintiff in this State. I respectfully dissent from such an unfounded result.