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07/19/89 the People of the State of v. Sharon L. Pine Et Al.

July 19, 1989

THE PEOPLE OF THE STATE OF ILLINOIS

v.

SHARON L. PINE ET AL., APPELLEES (JIM EDGAR, SECRETARY OF STATE, APPELLANT)



SUPREME COURT OF ILLINOIS

542 N.E.2d 711, 129 Ill. 2d 88, 134 Ill. Dec. 365 1989.IL.1120

No. 67436. -- Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Vermilion County, the Hon. David G. Bernthal, Judge, presiding; No. 67440. -- Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Marion County, the Hon. David Sauer, Judge, presiding; No. 67455. -- Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Jackson County, the Hon. William G. Schwartz, Judge, presiding; No. 67468. -- Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Sangamon County, the Hon. George Ray, Judge, presiding; No. 67475. -- Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Edgar County, the Hon. H. Dean Andrews, Judge, presiding; No. 67476. -- Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County, the Hon. Edward C. Ferguson, Judge, presiding.

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court. JUSTICE CLARK, Dissenting. STAMOS and CALVO, JJ., join in this Dissent. JUSTICE CALVO, also Dissenting. CLARK and STAMOS, JJ., join in this Dissent.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

These consolidated appeals present the issue of whether the Secretary of State has standing to appeal an order of a trial court directing the Secretary to issue a judicial driving permit pursuant to section 6-206.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-206.1). The appellate court, relying on People v. Bluett (1988), 166 Ill. App. 3d 593, held that the Secretary lacked standing and dismissed the appeals. We granted the Secretary's petition for leave to appeal (107 Ill. 2d R. 315), and allowed the Illinois State Bar Association to file a brief as amicus curiae because the various defendants did not file responses in this court or the appellate court on the issue presented. We conclude that it was improper to dismiss the appeals. The Secretary of State is granted broad authority over matters within the Illinois Vehicle Code and is intricately involved in the judicial driving permit proceedings held pursuant to section 6-206.1. We therefore reverse and remand.

This issue arises as a result of circuit court orders which granted JDPs to drivers whose licenses had been summarily suspended. The driving privileges of a driver who has been arrested for driving under the influence of drugs or alcohol are suspended pursuant to our statutory summary suspension law (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501.1). Section6-206.1 of the Illinois Vehicle Code provides that the first-time offender, as defined in section 11-500 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-500) (one who has not had a previous DUI conviction within five years), may petition the circuit court for a judicial driving permit to avoid undue hardship. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-206.1.) Subject to certain conditions, the court may issue the JDP and allow the person to drive to and from work during certain times, or to drive for the purpose of receiving medical care or drug treatment. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-206.1(a).) After the court enters the order, it is submitted to the Secretary. The statute requires that any submitted JDP form which "contains insufficient data or fails to comply with this Code shall not be . . . entered to the driver record but shall be returned to the issuing court indicating why the JDP cannot be so entered." (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-206.1(d).) Drivers who are not first-time offenders may also receive a hardship license, but they must proceed in an administrative proceeding before the Secretary of State. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-205.) Section 6-201(c) provides that " [e]xcept as provided in Section 6-206.1, the Secretary of State shall have exclusive authority to grant, issue, deny, cancel, suspend and revoke driving privileges, drivers' licenses and restricted driving permits." (Emphasis added.) Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-201(c).

In these six cases, the Secretary sought to appeal the circuit court orders which directed him to issue the JDPs but his appeals were dismissed by the appellate court for lack of standing. In this court, the Secretary seeks review of only the standing issue and not a review of the factual basis for the decisions of the various circuit courts ordering him to enter the JDPs. It is thus unnecessary to present the facts of each of the consolidated cases. However, the facts of the lead case, People v. Pine (No. 67436), is illustrative of how the issue arose in these cases, and presumably numerous other cases which, we are informed, are pending in the appellate court.

On September 10, 1983, Sharon Pine was arrested for DUI and placed under supervision. In March 1988, she was again arrested and convicted for DUI. She petitioned the court for a JDP so that she could drive to and from her place of work. In April, the circuit court of Vermilion County entered an order directing the Secretary of State to issue her a JDP. The Secretary returned the order to the court and, in a letter, stated that Pine was not eligible for a JDP because she had a previous DUI conviction in the last five years and, therefore, did not qualify as a first-time offender under the Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-500). The court resubmitted the order to the Secretary on May 12, 1988, and from that renewed order the Secretary attempted to appeal. On June 10, 1988, the appellate court, citing People v. Bluett (1988), 166 Ill. App. 3d 593, ordered the Secretary to show cause why his appeal should not be dismissed for lack of standing. Following submission of the Secretary's response, the rule was enforced and the appeal dismissed on June 20, 1988. The Secretary then filed a petition for leave to appeal in this court. Although the facts in the other cases differ somewhat from those in People v. Pine, for the purpose of this consolidated case, it is not necessary to set them forth in detail.

The issue of standing before us involves the Secretary of State, a public official and member of the executive branch of the government, and not a private citizen. In In re Estate of Tomlinson (1976), 65 Ill. 2d 382, we dealt with the standing of another public official, the Attorney General, to bring an appeal in a case where he was not a party in the lower court proceeding. In Tomlinson we stated "that the interests that will justify an appeal by one not a party must be direct, immediate and substantial. It must be an interest which would be prejudiced by the judgment or benefit from its reversal." (65 Ill. 2d at 387.) Tomlinson involved a dispute in regard to a charitable trust, and this court found that the Attorney General was statutorily vested with authority to enforce and supervise charitable trusts and, in spite of the fact that he had not participated in the proceeding in the lower court, had sufficient interest to appeal the circuit court decision. Likewise, in Pioneer Processing, Inc. v. Environmental Protection Agency (1984), 102 Ill. 2d 119, we granted the Attorney General standing to appeal a decision of the Pollution Control Board, even though he had not participated in the administrative proceeding. The holding was based on the "strong public interest in a healthful environment" and the Attorney General's duty and authority, as the State's chief legal officer, to represent the people for the protection of that interest. (102 Ill. 2d at 138-39.) Just as the Attorney General is involved in and responsible for a number of areas of public interest, the Secretary is intricately involved in the area of driving privileges and protecting the public from violations of the Illinois Vehicle Code.

The Secretary has broad authority to administer the State's laws governing the conduct of drivers on the roads, and is statutorily directed to observe, administer and enforce the provisions of the Code. (Ill. Rev. Stat. 1987, ch. 95 1/2, pars. 2-101, 2-104.) As noted, this authority includes the exclusive right "to grant, issue, deny, cancel, suspend and revoke driving privileges, drivers' licenses and restricted driving permits," except as provided in section 6-206.1. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-201(c).) One of the important responsibilities of the Secretary is protecting our citizens from the hazards of drunk drivers. (See People ex rel. Eppinga v. Edgar (1986), 112 Ill. 2d 101, 110 ("drunk driving and its consequences represent one of our society's gravest problems").) In conjunction with this role, the Secretary has authority to revoke and reinstate the driving privileges of persons convicted of DUI. Ill. Rev. Stat. 1987, ch. 95 1/2, pars. 6-205, 6-206, 6-208.

Until January 1, 1986, sole authority to suspend and revoke drivers' licenses and privileges, as well as authority to grant hardship relief or reinstatement, was vested in the Secretary. Effective January 1, 1986, the legislature created the statutory summary suspension law, which provided for the withdrawal of the license or privilege to operate a motor vehicle from a person convicted of DUI. (Ill. Rev. Stat. 1985, ch. 95 1/2, pars.1-203.1, 2-118.1, 6-206.1, 6-208.1, 11-501.1.) The law vested the circuit court with authority to grant relief to first offenders from a statutory summary suspension. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 6-206.1.) The Secretary of State still retained the authority to hold hearings and grant hardship relief or reinstatement, after a suspension or revocation imposed pursuant to its authority, and maintained exclusive authority over non-first-time DUI offenders. Ill. Rev. Stat. 1985, ch. 95 1/2, pars. 6-205, 6-208.

Illinois State Bar Association contends that the Secretary does not have standing to appeal a JDP order because his role in that proceeding is merely ministerial and administrative. ISBA notes that in the previous version of the JDP statute, the clerk of the court was responsible for the issuance of the JDPs pursuant to court order, and the Secretary was required to enter the appropriate notation on the driver's record. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 6-206.1(d).) ISBA argues that in the new version of the statute, the Secretary has

replaced the clerk of the court in the performance of a ministerial act and has no more right or interest to claim party status or standing than the clerk would have had. As noted, section 6-206.1 was added effective January 1, 1986, and provided that the clerk of the court issue the JDP. This section was amended effective September 18, 1986, giving the Secretary the authority to return the JDP to the court for the reasons above indicated. Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-206.1(d).

First, it is important to note that we are not determining whether the Secretary has standing to participate in the JDP hearing. The extent of his participation in that proceeding is established by statute. We are concerned with whether he has sufficient interest to appeal an order when, after the court enters the order, his participation (returning the JDP to the court with stated reasons for not entering) has failed to secure its intended result. Second, in the statute now under consideration, the Secretary has a much greater role with regard to the JDP order than did the clerk of the court. Effective September 18, 1986, the legislature inserted, by an amendment to section 6-206.1, and restated in the amendment effective January 1, 1987, a provision that:

"Any submitted court order that contains insufficient data or fails to comply with this Code shall not be utilized for JDP issuance or entered to the driver record but shall be returned to the issuing court indicating why the JDP cannot be so entered. A notice of this action shall also be sent to the JDP petitioner by the Secretary of State." (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-206.1(d).)

Therefore, under the amendment, the Secretary is required to review the court order and his records to insure that the driver is entitled to a JDP, and that the order is in conformance with the law. If there is an error in the order, the Secretary must return it to the court "indicating why the order cannot be so entered." After the order is returned, the court may correct it or, as was done in Bluett and some of these consolidated cases, it may resubmit the order and direct the Secretary to enter the JDP. In exercising this duty, in some of the consolidated cases in this appeal, the Secretary determined that the driver did not qualify for a JDP because he or she had a previous DUI conviction within the previous five years. (Ill. Rev. Stat. 1987, ch. 95 1/2, pars. 6-206.1(a), 11-500.) The distinction of who is a first-time offender is important because it is the Secretary who has jurisdiction, under the restricted driving permit provisions of the Code, to decide the eligibility for driving privileges of any individual who is not a first-time offender. Therefore, if the court grants a JDP to a person who is not a first-time offender, the court has exercised authority which the legislature has placed with the Secretary, and not with the court.

After the section 6-206.1(d) procedure between the court and the Secretary is completed, the order is ripe for appellate review. The rights and interests of the parties involved are fully adjudicated and the litigation is terminated, with nothing necessary but enforcement of the order. There is, therefore, a final and appealable order. (People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 171; South Chicago Community Hospital v. Industrial Comm'n (1969), 44 Ill. 2d 119, 121.) Certainly, if the court denied the issuance of the JDP or agreed with the Secretary that the order was improperly granted, the petitioner could appeal. However, faced with the reverse situation, where the JDP was issued and the court does not agree with the Secretary, some party must have authority to determine the propriety of the order through the appellate process. We do not agree with ISBA that the Secretary's responsibility and interest in the JDPs is merely ministerial and administrative, similar to that of the clerk of the court under the provision of section 6-206.1 that was in effect from January 1, 1986, to September 18, 1986. Instead, the Secretary, under the present version of section 6 - 206.1, has direct involvement in reviewing the propriety of the JDP order, and, through the right of appellate review, he seeks to insure that the licensing responsibilities are properly shared between the courts and his office in accordance with legislative intent. We believe that this responsibility and interest in the JDP process and his broad authority in the Illinois Vehicle Code confers on the Secretary of State standing to appeal the order. ISBA also contends that the Secretary should not be granted standing

because the appropriate party to bring these appeals is the local State's Attorney from each county. The State's Attorney is directed to prosecute violations of the Illinois Vehicle Code. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 16-102; see also Ill. Rev. Stat. 1987, ch. 14, par. 5 (general duties of the State's Attorney).) In People v. O'Donnell (1987), 116 Ill. 2d 517, we noted that in reinstatement proceedings for a driver whose license has been summarily suspended (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-208.1), the Secretary provided notice to the local State's Attorney regarding upcoming reinstatement applications. The State's Attorney could then appear and present any evidence he may have in opposition to the application. In the cases before us, the record is unclear whether the State's Attorney appeared at the JDP hearings, or that a procedure has been developed with the Secretary of State to provide information regarding the petition. However, the statute seems to allow these matters to proceed ex parte and the JDP proceeding, unlike reinstatement proceedings, requires the Secretary to be more actively involved after the order has been entered. (Ill. Rev. Stat. 1987, ch. 95 1/2, par.6-206.1(d).) Moreover, we do not believe that in all instances the State's Attorney's and the Secretary's interests are consonant such that the province to seek review of the order should be granted only to the State's Attorney.

The Secretary has demonstrated that his interest is to insure that the court strictly adheres to its statutory authority in granting JDPs. Failure of the court to do so may result in its usurping the jurisdiction of the Secretary. The State's Attorney is interested in prosecutions at the local level and has demonstrated that the office is amenable to negotiating certain matters so that the petitioner can qualify for a JDP. In People v. Bluett (1988), 166 Ill. App. 3d 593, for example, the assistant State's Attorney agreed to amend the date of the DUI charge, "for purposes of the J.D.P. hearing only," in an attempt to make Bluett's arrest appear to be more than five years after his prior conviction. Also, in People v. Diveley (No. 67476), one of the cases in this appeal, the assistant State's Attorney agreed to vacate a prior DUI conviction apparently so that Diveley would qualify as a first-time offender.

The interests of the Secretary of the State, in certain circumstances involving the enforcement of laws relating to drunken driving, are different from the local State's Attorneys'. The Secretary seeks to insure that the Illinois Vehicle Code, and, more specifically, that the JDP and hardship license provisions, are properly and uniformly applied throughout the State. He also seeks to preserve his jurisdiction over non-first-time offenders who want hardship licenses. To guarantee that these interests are protected, the Secretary should have standing to appeal a decision granting a JDP. Thus, there may be instances where the Attorney General, as representative of the executive branch and legal counsel for the State, should represent the Secretary in his appeals from a court's order granting a JDP.

Allowing the Secretary to appeal is analogous to cases where courts have held that in an ancillary proceeding, one not a party to the original matter could seek appellate review of an order without first having to be held in contempt for refusing to obey the court order. For example, Laurent v. Brelji (1979), 74 Ill. App. 3d 214, involved a discharge proceeding before the Civil Service Commission of an employee of a mental health center. The superintendent of the center refused to comply with the administrative subpoena duces tecum requiring him to testify and to produce for inspection the records of a former patient of the facility. In an ancillary court proceeding to enforce the subpoena, the circuit court granted the petition of the employee and the Civil Service Commission, and directed the superintendent to comply with the subpoena. The superintendent appealed and the appellate court found the order of the circuit court to be final and appealable. The court reasoned that "the proceeding before the circuit court was a separate, independent action [from the administrative proceeding]. [Citation.] After the court ordered the recusant witness to testify and produce the records, the proceeding before it was terminated . . .. The order of the court finally determined the rights of the parties before it and terminated the litigation." (74 Ill. App. 3d at 216.) In Ellis v. Interstate Commerce Comm'n (1915), 237 U.S. 434, 59 L. Ed. 1036, 35 S. Ct. 645, a witness was allowed to appeal a trial court order directing him to answer questions in an inquiry before the Interstate Commerce Commission. On appeal, the Court stated: "There is no doubt that this appeal lies. The order is not like one made to a witness before an examiner or on the stand in the course of a proceeding inter alios . . .. [Citation.] It is the end of a proceeding begun against the witness." 237 U.S. at 442, 59 L. Ed. at 1040, 35 S. Ct. at 646; see Durkin v. Hey (1941), 376 Ill. 292; Lorsbach v. Hartford Fire Insurance Co. (1942), 315 Ill. App. 32.

Likewise, in the JDP proceeding the Secretary is not initially a party, but if he and the court disagree over the order, under section 6-206.1(d), in a sense, an ancillary proceeding is created between the two to determine whether the JDP is statutorily correct. In the first phase of the hardship proceeding, the driver petitions the circuit court for a JDP. During this stage, the State's Attorney, if he chooses, may participate. If the court grants the petition, an order is entered for the JDP. After the order is entered, the litigation in court is terminated between the petitioner and the State's Attorney. In the second phase, the matter proceeds to the Secretary, who reviews the court order and returns it to the court if it is found improper. The court may accede to the Secretary's position or resubmit the order. If it is resubmitted, the Secretary may ignore the order and risk being held in contempt, or an appeal may be taken. Thus, the statute contemplates a separate proceeding in which the Secretary is intricately involved, not unlike that present in the cases just discussed. ISBA argues that before the Secretary should be allowed to appeal, he

must not only return the order, but also refuse to enter the resubmitted order and wait until he is held in contempt. (See People v. Minor (1987), 162 Ill. App. 3d 140 (Secretary was held in contempt for failure to issue a JDP).) We do not believe that that is necessary. After the court resubmits the order, it is final and appealable. As in the analogous proceedings to enforce administrative orders in the cases discussed above, there is no reason that the Secretary must be held in contempt before he may appeal the decision. (See Durkin v. Hey (1941), 376 Ill. 292; Laurent v. Brelji (1979), 74 Ill. App. 3d 214.) However, before the Secretary may appeal, the procedure outlined in section6-206.1(d) should be followed. After the order has been sent to the Secretary, he must either enter it or return it to the court. If he returns it and the court changes the order to meet the Secretary's objections, there is no need for review of the order. If the court chooses to resubmit the order without meeting the Secretary's objections, the order then, in the Secretary's view, does not comply with the law. The Secretary may then seek appellate review of the order. The records in these consolidated cases are incomplete, and it is unclear whether the JDPs were issued or whether this procedure has been followed. On remand, it should be determined whether the Secretary has proceeded so that the order against him has been finalized and is appealable under the above construction.

Last, ISBA argues that granting the Secretary standing to appeal may result in a violation of the separation of powers doctrine. The separation of powers clause to our 1970 constitution provides:

"The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another." (Ill. Const. 1970, art. II, § 1.)

"The doctrine, with respect to the relationship between the executive and judicial branches of government, is violated when the challenged provision would confer powers to one branch of government which properly should be exercised by another branch [citation] . . . or when one branch usurps the authority of another branch [citations]." (People v. Inghram (1987), 118 Ill. 2d 140, 146-47.) In Inghram, we held that the authority granted to the court under section 6-206.1 to issue JDPs did not confer undue power to one branch of government, usurp the executive branch's powers or unduly burden the judicial branch with a nonjudicial function. (118 Ill. 2d at 149.) Similarly, in upholding the constitutionality of the authority of the circuit court to statutorily suspend a license or privilege, we held that "there has been no showing that an essential function of the Secretary of State's office has been transferred to the judiciary." (People v. Hamilton (1987), 118 Ill. 2d 153, 162; see also People v. O'Donnell (1987), 116 Ill. 2d 517 (no violation of the separation of powers clause by statute requiring circuit court to collect reinstatement fees of drivers whose licenses were restored).) In this case, the Secretary and the court are both exercising authority granted by statute. The court is not exercising any power conferred by the constitution or the common law. (See People v. Hamilton (1987), 118 Ill. 2d 153, 162.) We do not believe that construing the statute so as to allow the Secretary to appeal a circuit court's JDP order poses a separation of powers violation. There is no transfer of authority away from the judiciary or performance of any duty reserved for the judiciary. We are only allowing the Secretary to appeal an order entered when his participation pursuant to section 6-206.1(d) has failed to secure what he believes is the proper result.

Accordingly, we reverse the decisions of the appellate court and remand the cases to that court with directions to proceed in ...


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