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03/20/89 Roman Weissinger, v. Jim Edgar

March 20, 1989

ROMAN WEISSINGER, PLAINTIFF-APPELLEE

v.

JIM EDGAR, SECRETARY OF STATE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

536 N.E.2d 237, 180 Ill. App. 3d 806, 129 Ill. Dec. 553 1989.IL.366

Appeal from the Circuit Court of Du Page County; the Hon. John W. Darrah, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. UNVERZAGT, P.J., and NASH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Plaintiff, Roman Weissinger, was convicted of reckless homicide in 1983. On May 19, 1987, the defendant, the Secretary of State (Secretary), notified Weissinger that an order reflecting his 1983 conviction had been received and that his driver's license would be suspended effective May 26, 1987. In a formal hearing before the Secretary, plaintiff sought reinstatement of his driving privileges; this relief was denied on September 10, 1987. On November 6, 1987, plaintiff filed a complaint in the circuit court of Du Page County seeking to enjoin the Secretary from revoking his driver's license. On April 21, 1988, after a bench trial, the trial court entered an order granting plaintiff's request for injunctive relief.

The Secretary then timely appealed, raising three issues: (1) whether the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3-101 et seq.) provides the method of review of the Secretary's determination under the circumstances of this case; (2) whether the trial court erred in placing the burden of proof upon defendant; and (3) alternatively, whether the plaintiff sustained his burden of proof if it was properly placed on defendant. We vacate the judgment of the circuit court and remand the cause with directions.

In 1978, plaintiff was arrested after he was involved in a traffic accident which resulted in a fatality. Pursuant to a guilty plea entered in 1983, plaintiff was convicted of the offense of reckless homicide.

In a letter dated May 19, 1987, the Secretary notified plaintiff that a report of his conviction had been received and that the Secretary was compelled to comply with the Illinois statute providing for the mandatory revocation of an individual's driver's license upon receipt of a notice of conviction for reckless homicide. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 6-205.) The letter indicated that an order of revocation was being entered and that Weissinger was entitled to a formal hearing on the matter if he desired one.

On May 26, 1987, plaintiff's license was officially revoked. On July 21, 1987, a formal hearing was held before the Secretary. Subsequently, on September 10, 1987, plaintiff was denied reinstatement of his driving privileges. Consequently, on November 6, 1987, plaintiff filed a complaint in the circuit court of Du Page County seeking to temporarily and permanently enjoin the Secretary from revoking his driver's license. Plaintiff also asked the court to order the Secretary to restore his driving privileges. The essence of plaintiff's complaint was that the Secretary had not acted "forthwith" in revoking his driver's license because more than four years had elapsed from the date of conviction to the date of revocation.

The Secretary responded by filing a motion to dismiss along with a supporting memorandum on January 28, 1988. Initially, the Secretary argued that plaintiff's complaint should be dismissed because venue was improper. The Secretary contended that the Administrative Review Law (Act) (Ill. Rev. Stat. 1987, ch. 110, par. 3-101 et seq.) specifically designated Cook County or Sangamon County as the appropriate places of venue for the review of a decision of the Secretary involving the suspension, revocation or denial of a driver's license. Thus, plaintiff's selection of venue in Du Page County was improper.

The Secretary also argued that the proper procedure to judicially review the revocation of one's driver's license was set forth in the Act. The Secretary averred that plaintiff had acted improperly because he had sought relief in the form of a complaint for injunctive relief and, therefore, had not complied with the mandates of the Act. Noting that plaintiff was trying to supersede the legislative intent of the Act by filing a complaint for injunctive relief, the Secretary contended that plaintiff's complaint should be dismissed for failure to comply with the Act.

Finally, the Secretary argued that plaintiff's complaint should be dismissed because the time for review of the administrative decision had expired. The Secretary pointed out that the Act specifies that every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of a summons within 35 days from the date a copy of the decision sought to be reviewed was served upon the party affected thereby pursuant to section 3-103 of the Act (Ill. Rev. Stat. 1987, ch. 110, par. 3-103). Because plaintiff had failed to file a complaint within the mandatory time period, having commenced his action some 61 days after the Secretary's final decision, the Secretary argued that his complaint should be dismissed as it was barred by the statute. Ill. Rev. Stat. 1987, ch. 110, par. 3-102.

On March 1, 1988, plaintiff filed his answer to the Secretary's motion to dismiss, stating that his complaint was not brought under the Act. Without citing authority, plaintiff argued that where an agency renders a decision that is not authorized by law, a complaint for an injunction of that act is proper. Plaintiff stated that in this matter the Secretary had not acted "forthwith" in revoking his driver's license in accordance with the revocation provisions of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1/2, ...


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