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Broadway v. Secretary of State

OPINION FILED JANUARY 10, 1985.

ELLIS BROADWAY, PLAINTIFF-APPELLEE,

v.

THE SECRETARY OF STATE OF THE STATE OF ILLINOIS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Champaign County; the Hon. George S. Miller, Judge, presiding.

JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

The Illinois Secretary of State asks us to overturn an order of the circuit court which vacated the suspension of Ellis Broadway's driver's license and assessed various costs against the State.

We agree with the Secretary and reverse.

Broadway was the uninsured driver of the car of an uninsured owner. He was involved in an automobile accident in Champaign County, Illinois. Since the plaintiff was admittedly uninsured, a hearing was scheduled pursuant to section 7-205 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 7-205).

The evidence adduced at the hearing consisted of the testimony of plaintiff and the owner of the car, the introduction into evidence of a traffic accident report form which detailed the accident, and a form prepared by the Illinois Department of Transportation which stated the amount of property damage to be $1,000.

Plaintiff testified that he was driving southbound on Second Street approaching its intersection with University Avenue in Champaign. At the intersection, there was a stop sign for the traffic on Second Street where the plaintiff was situated but no traffic control device for the cross street. When he reached the intersection, he came to a complete stop. He looked in both directions. He noticed the automobile with which he was later involved stopped at a red light in the eastbound lane one block to the west. He waited until traffic approaching on University Avenue had passed. He then entered the intersection. He testified that when he was partway into the eastbound lanes of the intersection, the automobile which he was driving stalled. As he was trying to restart the automobile, it was struck on the right front fender by an automobile traveling east on University. The owner of the car driven by plaintiff testified that he was driving her car but was involved in his own affairs and was not driving at her behest.

Upon consideration of all the evidence, the hearing officer concluded that there was a reasonable possibility of a money judgment against plaintiff in excess of $250. Upon this finding, the hearing officer ordered plaintiff's driver's license suspended. The hearing officer also found that there was no agency between plaintiff and the car owner. Based on this finding, the action against the owner was dismissed.

Plaintiff then filed a complaint for administrative review in the circuit court of Champaign County. The Secretary answered the complaint by filing a certified copy of the transcript of the suspension proceedings with the clerk of the circuit court of Champaign County. This procedure is mandated by section 3-101 of the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3-101). Despite filing the entire record with the clerk, the Secretary served plaintiff with only the cover page of the report and a notice of service. Plaintiff asked the Secretary for the entire report in a letter. The Secretary, through the Attorney General's office, responded that the entire record would not be sent to plaintiff unless he paid the sum of $5 to cover copying costs. Plaintiff then obtained a copy of the proceedings from the circuit clerk's office.

On October 24, 1983, plaintiff filed a motion for expenses which sought reimbursement of the $5. The motion relied upon Supreme Court Rule 104 (87 Ill.2d R. 104), which plaintiff argued called for the delivery of the entire record of proceedings by the Secretary and the reimbursement of the sum of copying the entire record upon the failure of the Secretary to deliver it.

The hearing on the motion and the complaint for administrative review was held January 26, 1984. No transcript of the hearing was included in this record on appeal. The record entry reflecting the hearing shows that the court found "that the record of the administrative agency defendant shows that there is no proper evidence or reasonable inference therefrom to support a finding that there is a reasonable possibility of a judgment in excess of the statutory minimum; that such a finding would necessarily have been based upon hearsay evidence alone." Upon this finding, the court reversed the decision of the Secretary which suspended plaintiff's driver's license. The court also ordered:

"Costs are adjudged in favor of the Plaintiff and against the Defendant, including costs of the copy of the transcript of record below.

Upon the finding of this being a pauper's case, the filing fee and all other costs are adjudged in favor of the Plaintiff and against the Defendant. Written Order to be entered."

On May 16, 1984, plaintiff filed a motion for entry of written order. The motion was accompanied by a letter dated February 28, 1984. The letter was addressed to the assistant Attorney General handling plaintiff's case and referred to a proposed order which was also enclosed, which letter requested that the order be signed or objected to. The motion set forth the fact that the assistant Attorney General had not responded to the letter and requested the court to enter the order. The motion was set for hearing on May 23, 1984. On May 22, 1984, the Attorney General responded to the motion, arguing that the portion of the motion taxing costs was improper on three grounds. The Attorney General first argued that it had no responsibility to do anything more than file the administrative record with the clerk of the court, relying upon the case of Reich v. Board of Fire & Police Commissioners (1973), 13 Ill. App.3d 1031, 301 N.E.2d 501. The Attorney General also argued that under the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, par. 439.1 et seq.) and the doctrine of sovereign immunity (Ill. Rev. Stat. 1983, ch. 127, par. 801), the circuit court lacked jurisdiction to assess costs against the State of Illinois. The final argument raised by the Attorney General was that the power to tax costs is not found in section 3-101 et seq. of the Code of Civil Procedure, which precluded such an assessment by the court.

The hearing on all the issues was apparently held May 23, 1984, although no transcript or record entry was included in the record before this court. The record does contain an order, dated May 23, 1984, and filed May 24, 1984, which parallels plaintiff's original proposed order. The order reverses the decision of the hearing officer and sets the costs to be taxed against the State at $12.50. The sum purports to include plaintiff's cost of copying the defendant's ...


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