Rule 23 order filed
July 22, 2004;
Motion to publish granted
September 1, 2004.

The plaintiffs, Thomas R. Peters and S&M Enterprises, filed a single-count complaintin the circuit court of St. Clair County, Illinois, seeking administrative review of a decision ofthe Board of Trustees of Southern Illinois University (the Board) that requires freshmanstudents who are single and under 21 years old and who are not living with a parent or legalguardian to live in university-owned housing. The Board filed a motion to transfer the actionto Jackson County, Illinois, on the ground that venue was not proper in St. Clair County. Thecircuit court granted the motion and ordered the action transferred to the circuit court inJackson County, Illinois. On appeal, the plaintiffs claim that the circuit court's decision wasan abuse of discretion.

Plaintiff S&M Enterprises (S&M) operates Stevenson Arms, a facility providinghousing for freshman students attending Southern Illinois University in Carbondale, Illinois. Plaintiff Thomas R. Peters, a St. Clair County resident, is S&M's attorney. Peters has a limitedpower of attorney granted by S&M with respect to all transactions between Stevenson Armsand Southern Illinois University's housing department (the housing department). In theacademic years 1995-96 through 2001-02, the housing department classified Stevenson Armsas an accepted living center for freshman students. In order to be classified as an acceptedliving center, a facility must apply for approval and meet specific criteria.

In 2002, the Board made a policy decision that "all single freshman students under theage of 21 not residing with their parents or legal guardians be required to live in university-owned housing." The prior policy required all freshmen and sophomores to live on campus orin accepted off-campus housing. The new policy was to go into effect at the start of the fallsemester of 2003. In a letter dated July 11, 2002, the Board notified the plaintiffs of itsdecision. As a result of the Board's decision, the classification of accepted living center forfreshman students was eliminated and the privately owned Stevenson Arms could no longeroperate as an accepted freshman dormitory.

On August 9, 2002, the plaintiffs filed a complaint in the circuit court of St. ClairCounty and sought administrative review of the Board's decision, pursuant to section 3-101 etseq. of the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2000)). In theircomplaint, the plaintiffs claimed that the Board's decision was invalid, improper, and/orarbitrary and capricious and requested that the court enter an order striking the decision andfor other relief within the subject matter jurisdiction of the court.

The Board filed a motion to transfer the case to Jackson County, Illinois. The Boardalleged that venue was improper because no part of the transaction or occurrence had takenplace in St. Clair County and the Board's principal office was not in St. Clair County. Theplaintiffs countered that venue was proper under section 2-103(a) of the Civil Practice Law(735 ILCS 5/2-103(a) (West 2000)) because the subject matter of the decision involved andaffected students from St. Clair County seeking to attend the university for the fall semesterof 2003 and because in prior years the applications seeking the classification of StevensonArms as an approved freshman residence were executed in St. Clair County.

The parties filed additional motions before the venue motion was heard. The plaintiffsfiled a motion to amend the complaint to add counts for mandamus and certiorari. The Boardfiled a motion to dismiss the complaint on the grounds that it failed to state a cause of actionand that the circuit court lacked subject matter jurisdiction of the action. There is nothing inthe record indicating that the circuit court ruled on these motions.

After considering oral and written arguments of the parties, the circuit court granted thevenue motion and ordered the case transferred to Jackson County, Illinois. The court foundthat the subject matter of the action was situated in Jackson County, that all the parts of thetransaction giving rise to the proceedings occurred in Jackson County, that the Board'sprincipal office was in Jackson County, and that all the records and evidence were located inJackson County.

As noted in the fact summary, there is nothing in the record before us to indicate thatthe circuit court ruled on the plaintiffs' motion to amend the complaint to add counts formandamus and certiorari. Consequently, the only allegations at issue are those contained inthe initial complaint, and we will consider the issues on appeal in light of those allegations. Despite the lack of a ruling on the Board's motion to dismiss for a lack of jurisdiction, we willconsider that issue because subject matter jurisdiction cannot be waived. See Smith v. Jones,113 Ill. 2d 126, 130, 497 N.E.2d 738, 740 (1986).

Article XIII, section 4, of the Illinois Constitution abolished sovereign immunity,"[e]xcept as the General Assembly may provide by law". Ill. Const. 1970, art. XIII,