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Green v. Edgar

OPINION FILED DECEMBER 30, 1986.

JEFFREY GREEN, PLAINTIFF-APPELLEE,

v.

JIM EDGAR, SECRETARY OF STATE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.

JUSTICE SCARIANO DELIVERED THE OPINION OF THE COURT:

The instant case involves an application for restoration of driving privileges made by plaintiff-appellee, Jeffrey Green. The Secretary of State's office (defendant-appellant herein) had rejected plaintiff's application following an administrative hearing on the request, and plaintiff sought administrative review of that decision in the circuit court. The court affirmed the Secretary's decision insofar as full restoration of driving privileges was concerned; the court nonetheless ordered the Secretary of State to issue plaintiff a restricted driving permit (RDP). The Secretary appeals from this latter decision.

Plaintiff's driving record over the last decade consists of the following violations and actions: plaintiff has twice been convicted of speeding (once at a speed in excess of 100 miles per hour); his driver's license has been revoked two times; on three occasions he has been convicted of a variety of lane usage or passing violations; and he has twice been convicted of driving under the influence.

An administrative hearing was held on plaintiff's application for reinstatement of driving privileges in August 1983. At that hearing, evidence was adduced showing that plaintiff was a recovering alcoholic, that he had submitted to an alcohol evaluation, and that he had completed a remedial driving/alcohol education program in June 1983. Plaintiff acknowledged his alcoholism, and stated that he had begun attending Alcoholics Anonymous (A.A.) meetings in June 1983. Between that time and the date of the hearing in August, he had attended four or five such meetings. Plaintiff also asserted at that time that he was unemployed.

The Secretary of State adopted the findings of the hearing officer and accordingly denied plaintiff's application for privileges on November 8, 1983. Those findings consisted of the following: (a) that plaintiff was an alcoholic, but despite his acknowledgment of the problem, he had failed to submit any substantial proof of his alleged period of sobriety and progress to ascertain that he would not constitute a threat to public safety; (b) plaintiff submitted no evidence of his current condition to show sufficient recovery and his request for reinstatement of driving privileges was outweighed by public safety concerns; and (c) plaintiff's evidence was inconsistent and inconclusive as to the length of time he had been actively involved in A.A. It was from these findings that plaintiff sought administrative review.

That hearing was held on March 29, 1985. At that hearing the administrative proceedings were introduced, and the court heard argument based on them. Plaintiff claimed that he was employed when he appeared in the circuit court. The court affirmed the Secretary's denial of full reinstatement; however, the court directed the Secretary to issue an RDP to plaintiff, stating that "the Secretary of State's attitude results in people who are convicted of this offense which is a misdemeanor, are treated more shabbily than convicted fellons [sic] who are paroled." This appeal followed.

• 1 Initially, we note that plaintiff has not filed a brief in this court, nor has an appearance been entered by counsel on his behalf. This court clearly has the authority to address the merits of the case in the absence of a responsive filing by appellee (People v. Copeland (1980), 92 Ill. App.3d 475, 415 N.E.2d 1173); however, we are not obligated to act as appellee's advocate due to his failure. (Smith v. Georgia Pacific Corp. (1979), 76 Ill. App.3d 667, 395 N.E.2d 214.) While generally speaking a court of review should not be compelled to search the record for the purpose of sustaining the circuit court's judgment, if justice requires we are empowered to do so. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.

The Secretary asserts that the circuit court erred in directing the issuance of an RDP to plaintiff. He maintains that the legislature vested the discretionary authority in his office to grant or deny driving privileges to applicants such as plaintiff and that the decision of his office may not be cavalierly overturned. Rather, it can be dispensed with only under narrow circumstances, which the Secretary asserts are absent herein. Accordingly, the Secretary argues that the circuit court effectively usurped his function when it directed the issuance of an RDP.

• 2 It is significant at the outset to note that the Secretary's decision to deny full reinstatement of driving privileges was upheld by the circuit court. That court apparently found that the Secretary's decision had an evidentiary basis. In contradiction to that finding, however, the court ordered the RDP. The grant or denial of an RDP is addressed by the Illinois Vehicle Code, which provides:

"[T]he Secretary of State in his discretion, without regard to whether such recommendation is made by the court, may, if application is made therefor, issue to such person a restricted driving permit granting the privilege of driving a motor vehicle between his residence and his place of employment or within other proper limits, except that this discretion shall be limited to cases where undue hardship would result from a failure to issue such restricted driving permit." (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 6-205(c).)

The concept of "undue hardship" has been defined as follows:

"a difficulty in regard to getting to and from an applicant's place of employment or to operate on a route during employment, e.g., as a delivery man, because of the suspension or revocation of the applicant's driver's license. It is more than mere inconvenience on the applicant, and pertains only to the applicant." (92 Ill. Admin. Code ch. II, sec. 1001.410 (1983).)

The hardship must be current, and all other alternative modes of transportation must be unavailable to the applicant before an "undue" hardship will be found. Even where such hardship is present, the Secretary must still balance that hardship against the danger to public safety before issuing a permit, even though the RDP would only allow the applicant behind the wheel for a fixed purpose and time frame. 92 Ill. Admin. Code ch. II, secs. 1001.410, 1001.420 (1983); Sheldon v. Edgar (1985), 131 Ill. App.3d 489, 475 N.E.2d 956.

• 3 Our supreme court addressed the scope of review of administrative decisions in Murdy v. Edgar (1984), 103 Ill.2d 384, 391, 469 ...


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