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06/10/87 James L. Donnelly, Jr., v. Jim Edgar

June 10, 1987

JAMES L. DONNELLY, JR., APPELLEE

v.

JIM EDGAR, SECRETARY OF STATE, APPELLANT



SUPREME COURT OF ILLINOIS

509 N.E.2d 1015, 117 Ill. 2d 59, 109 Ill. Dec. 176 1987.IL.787

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

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court. JUSTICE GOLDENHERSH took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

This is an appeal from an administrative order of the Secretary of State denying James Donnelly's petition for a restricted driving permit (see Ill. Rev. Stat. 1985, ch. 95 1/2, par. 6-205(c)). Donnelly sought administrative relief in the circuit court of Cook County. He argued that the Secretary's decision was void because the procedures followed by the Secretary failed to comport with the requirements section 13 of the Administrative Procedure Act (Ill. Rev. Stat. 1985, ch. 127, par. 1013), and because the decision was contrary to the manifest weight of the evidence. The circuit court concluded that section 13 applied and that the Secretary had violated section 13 by failing to circulate his proposed decision for review and comment before rendering the final decision. The circuit court reversed the Secretary's decision on this ground, finding it unnecessary to reach the question of the sufficiency of the evidence. We granted the Secretary's motion for a direct appeal, pursuant to Supreme Court Rule 302(b). 103 Ill. 2d R. 302(b).

Donnelly was convicted of operating a motor vehicle while under the influence of alcohol, contrary to section 11-501(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501(a).) As a result of the conviction, the Secretary suspended plaintiff's driver's license. Plaintiff then sought a restricted driving permit from the Secretary. After a hearing presided over by a hearing officer appointed by the Secretary, the hearing officer recommended against the issuance of the restricted driving permit. The Secretary adopted the hearing officer's findings, Conclusions, and recommendations and therefore denied plaintiff's request for a restricted driving permit.

Plaintiff sought review of the administrative decision in the circuit court. He argued that section 13 applied to the Secretary's decision in this case because the final administrative decision was made by persons or assistants unknown to him, who had neither heard the evidence presented at the hearing nor read the record made at the hearing. Therefore, plaintiff argued that the Secretary violated section 13 by failing to serve him with a copy of the proposed decision and by failing to allow him the opportunity to present exceptions to the proposed decision before it became final.

Plaintiff also argued before the circuit court that section 2.4 of the Secretary's internal policy procedures, which establishes a formal hearing review panel to review a hearing officer's proposed decisions, is a rule within the meaning of the Administrative Procedure Act. Plaintiff contended that since section 2.4 is a rule, it should have been promulgated in accordance with the rulemaking requirements of the Administrative Procedure Act.

The circuit court agreed that the Secretary was required to, but did not, comply with section 13 when making decisions on applications for restricted driving permits. The court also concluded that section 2.4 was a rule within the meaning of the Administrative Procedure Act, and that it had not been promulgated in accordance with that act's rulemaking requirements. Accordingly, the circuit court reversed the Secretary's decision and ordered that plaintiff be issued a restricted driving permit. The court stayed its order for 30 days pending appeal. This court granted the Secretary's petition for a direct appeal, and granted a stay of the circuit court's order pending appeal.

The sole issue before us in this case is whether section 13 of the Administrative Procedure Act applies to decisions of the Secretary of State made pursuant to section 6-205(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 6-205(c)). We agree with the Secretary's contention that section 13 does not apply in this case.

The Secretary argues that section 13 does not apply to final decisions rendered by the single head of an agency, since the language of the statute refers to multiple decision makers. Section 13 provides as follows:

"Except where otherwise expressly provided by law, when in a contested case a majority of the officials of the agency who are to render the final decision has not heard the case or read the record, the decision, if adverse to a party to the proceeding other than the agency, shall not be made until a proposal for decision is served upon the parties, and an opportunity is afforded to each party adversely affected to file exceptions and to present a brief and, if the agency so permits, oral argument, to the agency officials who are to render the decision. The proposal for decision shall contain a statement of the reasons therefor and of each issue of fact or law necessary to the proposed decision, prepared by the persons who conducted the hearing or one who has read the record."

The circuit court, in concluding that section 13 does apply, based this Conclusion on its finding that in reality it is the multiple members of the review panel, not the Secretary, that make the final decision on restricted driving permits. The circuit court based this finding on its interpretation of section 2.4 of the Secretary's internal policy ...


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