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01/19/89 Charles R. Burns, v. Jim Edgar

January 19, 1989

CHARLES R. BURNS, PLAINTIFF-APPELLEE

v.

JIM EDGAR, SECRETARY OF STATE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

533 N.E.2d 570, 178 Ill. App. 3d 708, 127 Ill. Dec. 698

Appeal from the Circuit Court of Sangamon County; the Hon. C. Joseph Cavanagh, Judge, presiding. 1989.IL.54

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. LUND and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

The plaintiff Charles R. Burns filed a petition in the circuit court of Sangamon County asking the court to enjoin Jim Edgar, the Illinois Secretary of State (Secretary), from revoking plaintiff's driving privileges pending a final determination of an administrative review proceeding. The trial court granted a preliminary injunction.

At the administrative review hearing, plaintiff requested that the Secretary rescind the order of revocation. Plaintiff's request was denied and his driving privileges were revoked.

Thereafter, in the injunction proceeding, the trial court reversed the administrative decision because it was against the manifest weight of the evidence and based on an improper construction of section 6-206(a)(6) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-206(a)(6)). The Secretary now appeals.

The plaintiff's driving record is as follows. On January 29, 1987, plaintiff was convicted of operating a vehicle while impaired in the State of Michigan. A statutory summary suspension was entered against plaintiff's driving record and privileges, effective July 24, 1987, arising from an arrest for driving under the influence on June 8, 1987, in Madison County. A provisional termination date of July 24, 1988, was set.

The Secretary further construed the operating while impaired conviction in Michigan as equivalent to a DUI conviction in Illinois. An order revoking plaintiff's license and driving privileges was entered effective April 18, 1987. On April 27, 1987, plaintiff requested an administrative hearing to contest the revocation.

On April 29, 1987, plaintiff filed a petition for injunction requesting that the Secretary be enjoined from revoking plaintiff's driving privileges, pending a final determination of the administrative review proceedings. The Secretary's April 18, 1987, order was rescinded on May 15, 1987, pursuant to an order entered by the trial court on May 11, 1987, enjoining the Secretary from revoking plaintiff's driving license and privileges pending a hearing before the Secretary on the issue of whether the revocation should be entered.

An administrative hearing was conducted on June 26, 1987. At the hearing, plaintiff admitted that he was arrested in Michigan and that a breathalyzer test at that time showed he had a 0.10 blood-alcohol concentration. After considering all of the evidence, the hearing officer found that plaintiff failed to submit sufficient evidence to warrant rescission of the order of revocation, denied plaintiff's petition for rescission, and reinstated the April 18, 1987, order of revocation. On July 9, 1987, the Secretary adopted the hearing officer's findings of fact and Conclusions of law, denied plaintiff's petition for the rescission of the order of revocation, and revoked his driver's license and driving privileges.

On August 17, 1987, the Secretary filed an answer in administrative review before the trial court in the injunction proceeding. Both the Secretary and plaintiff filed briefs and, on February 8, 1988, the trial court entered an order reversing the Secretary's decision on the grounds that the Secretary's decision was based on an erroneous construction of section 6 -- 206(a)(6) of the Code and was against the manifest weight of the evidence. On February 19, 1988, the Secretary filed a motion requesting the trial court to make findings of fact and to state the propositions of law upon which the court's judgment was based. On March 1, 1988, the trial court did so, specifically finding that the Michigan operating while impaired statute was not sufficiently similar to the Illinois DUI statute as to place motorists in jeopardy under section 6 -- 206(a)(6). The Secretary filed his notice of appeal on March 7, 1988.

The first issue to be considered is whether the trial court had subject matter jurisdiction to review the administrative decision in the injunction proceeding. The lack of subject matter jurisdiction of a court to enter an order cannot be waived since parties cannot create subject matter jurisdiction in a court by consent or acquiescence. As a result, the absence of subject matter jurisdiction may be raised at any time, even in the reviewing court after the entry of the order. (Talandis Construction Corp. v. Illinois Building Authority (1978), 60 Ill. App. 3d 715, 377 N.E.2d ...


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