author: JUSTICE UNVERZAGT PRESIDING JUSTICE INGLIS,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RAYMOND TURNAGE, Defendant-Appellee.
    Second District
    No. 2—91—0861
    Opinion filed October 28, 1993.
    INGLIS, P.J., dissenting.
    David R. Akemann, State’s Attorney, of Geneva (William L. Browers, Marshall M. Stevens, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

      Fred M. Morelli, Jr., and Vincent S. Cook, both of Law Offices of Morelli & Cook, of Aurora, and Vincent C. Argento and Jesse V. Barrientes, both of Law Offices of Vincent C. Argento, of Elgin, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The State appeals an order quashing the arrest of defendant, Raymond Turnage, and suppressing evidence seized pursuant to that arrest. (See 134 Ill. 2d R. 604(a)(1).) Defendant’s arrest was based on a warrant that was later recalled because defendant had already been arrested for the offense described in the warrant.

On appeal, the State argues that the trial court’s decision was error because the warrant was valid; and (2) even if the warrant was technically invalid, law enforcement officers’ reliance on the warrant was objectively reasonable, bringing this case within the “good-faith” rule of United States v. Leon (1984), 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405.

We affirm the trial court’s judgment.

The crucial facts of this case are not in dispute. On April 2, 1991, defendant was indicted in the case at bar on one count each of the unlawful possession of a controlled substance (cocaine) with the intent to deliver (Ill. Rev. Stat. 1991, ch. BO1^, par. 1401(a)(2)(A) (now 720 ILCS 570/401(a)(2)(A) (West 1992))); unlawful possession of a controlled substance (Ill. Rev. Stat. 1991, ch. 56V2, par. 1402(a)(1)(A) (now 720 ILCS 5707402(a)(2)(A) (West 1992))); unlawful use of a weapon (Ill. Rev. Stat. 1991, ch. 38, par. 24 — 1(a)(4) (now codified, as amended, at 720 ILCS 5/24 — 1(a)(4) (West 1992))); unlawful possession of a firearm without a firearm owner’s identification card (Ill. Rev. Stat. 1991, ch. 38, par. 83 — 2 (now 430 ILCS 65/2 (West 1992))); and unlawful possession of cannabis (Ill. Rev. Stat. 1991, ch. 56V2, par. 704(a) (now 720 ILCS 55074(a) (West 1992))).

Defendant was arrested on March 22, 1991. The search of defendant’s car pursuant to this arrest turned up evidence upon which the charges in this case are based. The arrest itself was based on a warrant issued by the trial court in case No. 90 — CF—1891, wherein defendant was charged with the unlawful delivery of a controlled substance, a Class 1 felony (the exact charge is not clear from the record). On December 10, 1990, defendant was indicted in case No. 90— CF — 1891. On December 13, 1990, defendant was arrested for this offense pursuant to a valid warrant issued that day. On December 17, 1990, defendant was duly released on bail in case No. 90 — CF—1891. On December 18, 1990, the circuit court, relying on the grand jury’s finding of probable cause, issued a second warrant for defendant’s arrest on the charge of unlawful delivery of a controlled substance. Defendant missed no court appearances and violated none of the conditions of his bail in case No. 90 — CF—1891.

On April 11, 1991, the circuit court entered an order recalling the arrest warrant in case No. 90 — CF—1891. On April 16, 1991, in the case at bar, defendant moved to quash the March 22, 1991, arrest and to suppress the fruits of the search that was made pursuant to the arrest. The sole witness at the suppression hearing was Officer Randy Podschweit of the Aurora police department. Podschweit testified that at about 11 p.m. on March 22 he spotted defendant as defendant was driving south in Aurora. Podschweit acknowledged that the only basis he had to arrest defendant was the warrant in case No. 90— CF — 1891.

At the time he spotted defendant, Podschweit knew that there had been a warrant for defendant’s arrest but was unsure whether the warrant was still active. About a month earlier, Podschweit had verified that there was an outstanding warrant for defendant’s arrest. Since then, he had checked the department warrant list about three times. Each time, defendant was on the list of people for whom there were outstanding warrants.

Podschweit stopped defendant and told the latter there was a warrant out for defendant’s arrest. Defendant denied that this was so. Podschweit called the department and received confirmation that the warrant was still valid. He arrested defendant. A search incident to the arrest uncovered a gun and a variety of controlled substances.

After Podschweit testified, the trial judge took notice of the judicial proceedings in case No. 90 — CF—1981, over which he also presided. Although defendant had posted bond and had missed no court appearances, two warrants for defendant’s arrest on the same charge had issued. Defendant did not receive notification of the indictment until well after the second warrant was issued. The judge opined that the second warrant should never have been issued. However, he also noted that the warrant was “still a valid warrant” at the time of the arrest and that Officer Podschweit may have relied in good faith upon the warrant.

After the arguments of counsel, the trial judge decided to grant the defendant’s motion to quash the arrest and to suppress the evidence in the case at bar. The judge explained that (1) he believed that the issuance of the second warrant violated defendant’s constitutional rights because the first warrant had already given the court jurisdiction over the defendant on the same charge. The judge then explained why he did not believe the good-faith doctrine of Leon applied:

“[Tjhey [the Supreme Court] talk about the reliance on a warrant which was objectively reasonable, and they talk about *** whether or not the officers were acting on a facially valid search warrant issued by a state court judge after an independent determination of probable cause.
This is not that kind of a warrant. This is a warrant based on a grand jury indictment. I don’t think that makes for an independent determination of probable cause by a judge, and for that reason, I will grant the motion to quash.”

The court entered a written order granting defendant’s motion, and the State timely appealed.

The State argues that the trial judge erred as a matter of law in quashing the arrest and suppressing the evidence. The State asserts that the trial judge was simply mistaken in his belief that the grand jury’s determination that there was probable cause to indict defendant was not an adequate substitute for a neutral magistrate’s finding of probable cause.

Defendant does not argue that the trial court’s reasoning in this respect was correct. However, defendant maintains that the trial court’s holding may still stand. He cites this court’s decision in People v. Mourecek (1991), 208 Ill. App. 3d 87, where we determined that Leon does not apply to an arrest that is based on law enforcement officers’ mistaken belief that a warrant exists for a defendant’s arrest, as opposed to their mistaken belief in the validity of an existing warrant.

We do not fully agree with either party or with the trial court’s reasoning. However, we affirm the trial court’s decision to quash the arrest and suppress the evidence. More particularly, we hold that (1) the warrant upon which the arresting officer relied was invalid; (2) the trial court erred in holding Leon inapplicable merely because a grand jury rather than a magistrate determined that there was probable cause to arrest defendant; (3) Mourecek is distinguishable and does not in itself require that we refuse to apply Leon to this case; and (4) although the court’s specific reason for refusing to apply Leon was unsound, the court did not err in refusing to apply Leon to a repetitive and unnecessary arrest that was the result of faulty police information.

As the relevant facts are undisputed, the trial court’s rulings are ones of law which we review de novo. (See In re D.G. (1991), 144 Ill. 2d 404, 408-09; Mourecek, 208 Ill. App. 3d at 91.) We must decide whether the trial court’s judgment was correct, and we may uphold that judgment on any proper basis, even if the trial court’s reasoning was flawed. Ruddock v. First National Bank (1990), 201 Ill. App. 3d 907, 911.

We hold first that the arrest warrant on which the police relied was invalid. The State concedes, and from the limited record we conclude, that on April 11, 1991, the circuit court invalidated the warrant. Apparently, the State never appealed this ruling (see 134 Ill. 2d R. 604(a)(1)), and the State may not now maintain that the second warrant was properly issued. See People v. Williams (1990), 138 Ill. 2d 377, 389-90.

Moreover, what applicable law we have found supports a holding that the second warrant was invalid. No Illinois statute authorizes a court which already has jurisdiction over a defendant to issue a warrant for the defendant’s arrest merely because the defendant has been indicted in the same court for the same offense. In the only reported opinion we have found upholding such a rearrest, the relevant statute specifically authorized such a procedure. (See State v. Smith (1970), 3 Or. App. 606, 608, 475 P.2d 433, 434.) Otherwise, courts have required that the rearrest of a person admitted to bail have a valid basis other than “the continuing knowledge of his possible guilt of the offense charged in the indictment.” (United States v. Holmes (7th Cir. 1971), 452 F.2d 249, 261, cert. denied (1972), 405 U.S. 1016, 31 L. Ed. 2d 479, 92 S. Ct. 1291; accord United States ex rel. Heikkinen v. Gordon (8th Cir. 1951), 190 F.2d 16, 19-20, vacated & remanded with directions to dismiss cause as moot (1952), 344 U.S. 870, 97 L. Ed. 674, 73 S. Ct. 163; Sherman v. State (1907), 2 Ga. App. 686, 687, 58 S.E. 1122, 1123.) Courts have recognized that to allow repetitive arrests could encourage police harassment of the accused and undermine the defendant’s right to bail. Holmes, 452 F.2d at 261; State v. Black (1890), 42 La. Ann. 838, 8 So. 594.

Having determined that the second arrest warrant was invalid, we must decide whether the arrest and search made pursuant to the warrant were properly subject to the exclusionary rule. We reject the trial court’s reasons for refusing to apply Leon here. Nonetheless, we hold that Leon does not extend to police reliance on the type of invalid warrant here.

The trial judge reasoned that the police could not reasonably rely on an arrest warrant that a judge issued after an indictment, as opposed to an arrest warrant that is based upon the judge’s own determination of probable cause. This distinction is legally erroneous. It is well settled that a properly returned indictment, fair upon its face, conclusively settles the issue of probable cause and not only permits but requires the issuance of an arrest warrant without further inquiry. (Gerstein v. Pugh (1975), 420 U.S. 103, 117 n.19, 43 L. Ed. 2d 54, 67 n.19, 95 S. Ct. 854, 865 n.19, citing Ex parte United States (1932), 287 U.S. 241, 250, 77 L. Ed. 283, 287, 53 S. Ct. 129, 131.) Thus, the trial court erred in holding that Leon was inapplicable to the warrant because the warrant was based upon a grand jury’s determination of probable cause.

Defendant suggests a different ground on which to affirm the trial court. He argues this case is controlled directly by Mourecek and similar cases where the arresting officer incorrectly believed that there was a valid warrant outstanding for the defendant’s arrest. (See Mourecek, 208 Ill. App. 3d at 91-93; People v. Joseph (1984), 128 Ill. App. 3d 668; People v. Lawson (1983), 119 Ill. App. 3d 42; see also People v. Sullivan (1993), 243 Ill. App. 3d 830.) However, these cases are distinguishable. Here the police relied on an outstanding warrant that was invalidated only after the arrest.

In Mourecek, the arresting officer was erroneously informed that a warrant was outstanding for defendant’s arrest. In fact, the warrant had been quashed over 30 days before the arrest. This court held that although Leon allowed an officer to rely in reasonable good faith on an existing warrant, the Supreme Court’s ruling was of no help where the officer reasonably believed that there was a warrant which in fact no longer was legally in existence. (Mourecek, 208 Ill. App. 3d at 92-93.) Where a warrant has been quashed prior to the arrest (or search), there is no existing warrant. Although the police may rely on a warrant that they reasonably believe to be valid, they may not rely on a belief, however reasonable, that there is a warrant where no warrant exists. (Mourecek, 208 Ill. App. 3d at 93.) Such a distinction is implicit in Leon, which is premised in part on the judicial preference for searches made pursuant to warrants over warrantless searches. Leon, 468 U.S. at 913-14, 82 L. Ed. 2d at 692-93, 104 S. Ct. at 3415-16.

To hold that Mourecek applies directly here would effectively hold that good faith will not validate police reliance on an existing warrant that is later found to have been defective. Such a blanket holding would conflict directly with Leon and with our supreme court’s application of Leon. See People v. Stewart (1984), 104 Ill. 2d 463, 477.

However, we agree with the trial court’s ultimate determination that the Leon “good-faith” doctrine did not shield the arrest and search of defendant from the operation of the exclusionary rule. Thus, we uphold the trial court’s judgment.

Under Leon, evidence seized pursuant to a technically invalid search warrant is not subject to suppression if the police reasonably relied on the warrant. The rationale for this holding is that the purpose of the exclusionary rule — to deter improper or negligent police conduct — would be served minimally or not at all by excluding evidence that the police have seized in reliance on a neutral magistrate’s determination that the arrest or search is proper. In most such instances, the officers executing the warrant cannot be expected to question the magistrate’s determination. Leon, 468 U.S. at 919-21, 82 L. Ed. 2d at 696-98, 104 S. Ct. at 3418-19.

The Leon Court stressed that, in applying the test it set out, a court must consider whether the actions of law enforcement officers were objectively reasonable and not whether the officers subjectively believed that their actions were proper. (Leon, 468 U.S. at 919 n.20, 82 L. Ed. 2d at 696 n.20, 104 S. Ct. at 3419 n.20.) Moreover, a court must consider the reasonableness “not only of the officers who eventually executed a warrant, but also of the officers who originally obtained it or who provided information material to the probable cause determination.” Leon, 468 U.S. at 923 n.24, 82 L. Ed. 2d at 698 n.24, 104 S. Ct. at 3420 n.24.

We conclude that the Leon good-faith doctrine is of no help to the State in this case. Under these facts, application of the good-faith doctrine is neither compelled by the reasoning of Leon nor consistent with the purposes of the exclusionary rule as recognized even after Leon.

Leon’s holding is premised on the assumption that law enforcement officers ordinarily have no reason to question the determination of a neutral magistrate that there is probable cause to execute the search or arrest for which the warrant has been issued. Even in the context of a probable-cause determination, however, there are certain instances, not directly applicable here, where law enforcement officers will have no reasonable grounds for believing that the warrant was issued. Leon, 468 U.S. at 922-23, 82 L. Ed. 2d at 698-99, 104 S. Ct. at 3420-21.

We believe that the issuance of an invalid repetitive warrant is such an instance. The procurement and execution of a previous warrant are historical facts which law enforcement officers know or should know at the time that a second warrant is issued. These are not matters with regard to which law enforcement officers may reasonably insist on deference to a magistrate’s determination, for whether a warrant is redundant is not a question of degree; it is a simple fact of which the police as an entity are or should be aware. Thus, law enforcement officers in a case such as this one will have no reasonable grounds to believe that the warrant was proper. Even if such reasonable grounds could be envisioned in some hypothetical instance, nothing suggests that this case is such an instance.

Also, application of the exclusionary rule to this type of situation would promote the rule’s central goal of deterring improper police conduct as opposed to simply “punishftng] the errors of judges and magistrates.” (Leon, 468 U.S. at 916, 82 L. Ed. 2d at 694, 104 S. Ct. at 3417.) As both the trial judge here and one Federal appellate court have noted, to allow multiple arrests of a defendant on the same charge in the same jurisdiction could facilitate harassment of a defendant — or “fishing expeditions” for other-crimes evidence that might be turned up in a search incident to the redundant arrest. (See Holmes, 452 F.2d at 261.) Moreover, as defendant observes on appeal, to allow law enforcement officials to benefit from an arrest that is concededly the result of their failure to obtain full and accurate information about a given defendant might actually encourage negligent execution of police functions.

We do not mean to imply that any such motives were present in this case, as the record does not so suggest. However, the temptations to such police misconduct are evident in a case such as this one unless the fruits of the improper arrest and search are suppressed. Therefore, we hold that the trial court properly granted defendant’s motion to suppress.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

WOODWARD, J., concurs.

PRESIDING JUSTICE INGLIS,

dissenting:

Because I feel that the good-faith doctrine does operate to shield the arrest and search of this defendant from the operation of the exclusionary rule, I respectfully dissent. I agree with the majority that the trial court erred in holding United States v. Leon (1984), 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405, inapplicable merely because the warrant issued from a grand jury rather than a magistrate. I also agree that People v. Mourecek (1991), 208 Ill. App. 3d 87, is distinguishable and that the subsequent warrant was ultimately invalid. It is the majority’s application of Leon, and thus the ultimate disposition, with which I must take issue.

Writing for the Court in Leon, Chief Justice Burger took great pains to explain that the key to the exclusionary rule is its deterrent effect. As the majority notes, the rule is designed to deter police misconduct rather than judicial or magistral error. The majority, however, seems to punish the police for the error of the circuit court or the State’s Attorney.

Burger directs “[the rule] cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.” (Leon, 468 U.S. at 919, 82 L. Ed. 2d at 696, 104 S. Ct. at 3418.) I cannot see that the police erred in any way. Nor do I see that the officer acted in a less than reasonable manner. The officer in this case, like the officer in Leon, seems to have done all he could do to determine the validity of the warrant. Suspecting the warrant might be old, the officer radioed in to ask. There was nothing more he could have done.

“ ‘[T]he application of the [exclusionary] rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.’ ” (Leon, 468 U.S. at 908, 82 L. Ed. 2d at 689, 104 S. Ct. at 3413, quoting United States v. Calandra (1974), 414 U.S. 338, 348, 38 L. Ed. 2d 561, 571, 94 S. Ct. 613, 670.) It does not seem to me that application of the exclusionary rule in this case will serve its remedial objectives. The officer did not request the redundant warrant; he had nothing to do with its issuance. It does not appear that the police department requested the redundant warrant or that the department could have prevented its issuance. The majority asserts that the redundancy of a warrant is “a simple fact of which the police as an entity are or should be aware.” (251 Ill. App. 3d at 491.) I do not see this. How could they know?

“ ‘If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.’ ” (Leon, 468 U.S. at 919, 82 L. Ed. 2d at 696, 104 S. Ct. at 3419, quoting United States v. Peltier (1975), 422 U.S. 531, 542, 45 L. Ed. 2d 374, 384, 95 S. Ct. 2313, 2320.) The officer in this case had every reasonable ground to believe the warrant was valid and, after calling in to check, had absolutely no reason to doubt it. It does not appear that the officer here failed in his duty in any respect. I do not see how he or the department could be charged with knowledge of the redundant nature of the warrant.

The majority states in closing that we do not mean to imply misconduct but affirm the suppression because “temptations to such police misconduct are evident.” (251 Ill. App. 3d at 492.) This strong language, I believe, does unkind and unmerited disservice to local law enforcement. It cannot but be interpreted as a lack of faith in the integrity of these public servants. Furthermore, I do not read the exclusionary rule to punish possible future misconduct. I simply do not agree that good faith does not apply here.

Finally, I question the restriction of the good-faith doctrine which the majority seems to suggest: that the department as well as the individual officer must have no reasonable ground to doubt the validity of the warrant. I believe this was not intended in Leon, and I believe the warrant system would suffer if the police were expected to doubt every warrant.

I believe the good-faith exception to the exclusionary rule applies to this case. I would therefore reverse the decision of the trial court.


source: Caselaw Access Project

author: JUSTICE QUETSCH

license: Public Domain

text:
    NORTHERN ILLINOIS HOME BUILDERS ASSOCIATION, INC., et al., Plaintiffs-Appellants, v. THE COUNTY OF DU PAGE et al., Defendants-Appellees.
    Second District
    No. 2—92—0963
    Opinion filed October 6, 1993.

      McKenna, Storer, Rowe, White & Farrug, of Wheaton (John C. Bartler, of counsel), for appellants.

      James E. Ryan, State’s Attorney, of Wheaton, and Gerald R Callahan, of Siemon, Larsen & Marsh, of Chicago (Barbara A. Preiner and Anna B. Harkins, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE QUETSCH

delivered the opinion of the court:

This case of first impression in Illinois involves a constitutional challenge to impact fees imposed on new development in Du Page County for the purpose of collecting a proportionate share of the road improvement costs made necessary by the additional traffic generated by the new development.

The plaintiffs, Northern Illinois Home Builders Association, Inc., et al., filed a complaint for mandamus, which in effect prayed for a declaratory judgment that the legislation enabling Du Page County to establish impact fees, and the ordinances passed pursuant thereto, be declared unconstitutional. Following a bench trial, the trial court denied the plaintiffs’ complaint. The plaintiffs appeal, contending that the enabling legislation and ordinances are unconstitutional because they: (1) violate the takings clause of the fifth amendment; (2) impose taxes on real property in violation of section 4 of article IX of the Illinois Constitution of 1970 (Ill. Const. 1970, art. IX, §4); and (3) violate the right to travel, equal protection, and due process. The plaintiffs also argue that the enabling acts constitute special legislation.

The first act enabling Du Page County to establish an impact fee was former section 5 — 608(a) of the Illinois Highway Code. That act stated:

“The county board of any county of over 400,000 population but less than 1,000,000 population may establish transportation impact districts and may collect transportation impact fees from persons constructing new developments in those districts, if such developments require direct or indirect access to the county highway system or State highway system. The fees shall be in addition to any amounts otherwise required to be paid by the developer and shall be collected at the time a building permit is issued or at such other time that the county board directs. The county board shall establish by ordinance or rule the amount of such fees, which shall be based on the amount of estimated traffic generated by various land uses and the amount of improvements needed to maintain a reasonable level of service on the existing and proposed highway systems in light of expected traffic growth.” Ill. Rev. Stat. 1987, ch. 121, par. 5— 608(a), repealed by Pub. Act 86 — 97, §2, eff. July 26,1989.

Du Page County passed ordinance DTO — 016—88 on or about November 22, 1988. That ordinance divided the county into 11 districts and used a standard fee formula which took into consideration the cost of road construction and the number of motor vehicle trips generated by different types of land use. The formula also provided credits for taxes and developer-financed improvement. The ordinance provided fee tables for residential, commercial and other types of developments, subject to annual review. The fees varied between districts, and the funds collected from new development could only be spent in that district or in areas immediately adjacent to that district.

After DTO — 016—88 was passed, an error was discovered in the fee calculations. On June 27, 1989, Du Page County passed its second impact fee ordinance, ODT — 021—89. That ordinance again divided the county into 11 districts and used the standard fee formula. It corrected the computational errors made in the first ordinance and provided a new set of impact fee tables. On July 25, 1989, Du Page County passed ODT — 021A—89, which changed the fee tables to reflect increases in the gas tax.

On July 26, 1989, the legislature repealed the first enabling act and passed the Road Improvement Impact Fee Law. (605 ILCS 5/5— 901 et seq. (West 1992).) This second enabling act authorized counties with a population of over 400,000 and all home rule municipalities to impose impact fees.

Du Page County subsequently passed ODT — 021B—89, effective January 1, 1990, which amended the fee tables to reflect changes in the motor fuel and property tax credits. On May 22, 1990, the county passed its current impact fee ordinance, ODT — 021C—89, effective July 25, 1990. The same formula was used to compute the impact fees for each of the 11 districts as was used to calculate the fees in the prior ordinances. It also provided that the funds collected from new development in a particular district could only be spent in that district. However, the county decided to no longer charge developers for their impact on State roads. Accordingly, the fee tables were recomputed. There are now three districts where no impact fees are due because there are fewer miles of county roads in those districts and the credits exceed the fees that would be owed.

The plaintiffs brought a complaint for “mandamus,” praying that the enabling statutes and ordinances be declared unconstitutional and that the impact fees previously paid be refunded. The trial court denied their complaint, and the plaintiffs appeal. Since the material facts pertinent to the constitutional issues are not disputed in this case, we may determine the correctness of the ruling on the question of law independently of the trial court’s judgment. Midland Management Co. v. Helgason (1993), 241 Ill. App. 3d 899, 903-04.

We first address the argument of plaintiff Joe Keim Builders, Inc. (Keim), that section 5 — 918 of the second enabling act requires Du Page County to refund $12,987 in impact fees which Keim paid from September 5, 1989, to March 10, 1990. Section 5 — 918 provides in relevant part:

“(a) Conformance of Existing Ordinances. A unit of local government which currently has in effect an impact fee ordinance or resolution shall have not more than 12 months from July 26, 1989 to bring its ordinance or resolution into conformance with the requirements imposed by this Act ***.
(b) Exemption of Developments Receiving Site Specific Development Approval. No development which has received site specific development approval from a unit of local government within 18 months before the first date of publication by the unit of local government of a notice of public hearing to consider land use assumptions relating to the development of a comprehensive road improvement plan and imposition of impact fees and which has filed for building permits or certificates of occupancy within 18 months of the date of approval of the site specific development plan shall be required to pay impact fees for permits or certificates of occupancy issued within that 18 month period.
***
(c) Exception to the Exemption of Developments Receiving Site Specific Development Approval. Nothing in this Section shall require the refund of impact fees previously collected by units of local government in accordance with their ordinances or resolutions, if such ordinances or resolutions were adopted prior to the effective date of this Act and provided that such impact fees are encumbered as provided in Section 5 — 916.” 605 ILCS 5/5 — 918(a), (b), (c) (West 1992).

The parties agree that Keim received site-specific development approval for Wheaton Park Manor on April 17, 1989, which was within 18 months before the first date of publication by Du Page County of the notice of public hearing held to consider land-use assumptions relating to the development of a comprehensive road improvement plan and imposition of impact fees. Keim also filed for building permits within 18 months of the date of approval of the site-specific development plan. Therefore, Keim argues that pursuant to section 5 — 918(b) it is entitled to a refund of the impact fees it paid for the development of Wheaton Park Manor. However, Du Page County argues that the exception to the exemption is applicable and that Keim is not entitled to a refund.

The fundamental principle of statutory construction is to ascertain and give effect to the intention of the legislature. (Thomas v. Greer (1991), 143 Ill. 2d 271, 278.) This intent is best determined by initially considering the language of the statute itself and giving the language its plain and ordinary meaning. DeClerck v. Simpson (1991), 143 Ill. 2d 489, 492.

A plain reading of section 5 — 918 indicates that the legislature intended that counties which did not have impact fee ordinances prior to the effective date of the second enabling statute should not thereafter collect impact fees from developments which meet the criteria of section 5 — 918(b). However, subject to an exception set forth in section 5 — 916 which is not applicable here, counties with impact fee ordinances existing prior to the time the second enabling statute became effective are not required to refund any impact fees previously collected pursuant to those ordinances.

In this case, Du Page County had enacted impact fee ordinances prior to the time the second enabling act became effective. However, Keim paid $12,987 in fees from September 5, 1989, to March 10, 1990. Keim argues that it is entitled to a refund of those monies since it paid them after the July 26, 1989, effective date of the second enabling act.

However, section 5 — 918(a) of the second enabling act preserved previously existing impact fee ordinances for one year from the effective date of the act. Thus, the legislature intended that counties with existing impact fee ordinances be allowed to continue collecting fees pursuant thereto until July 26, 1990. Therefore, Du Page County was still entitled to collect impact fees from Keim from September 5, 1989, to March 10, 1990. Thus, Keim is not entitled to the refund of those monies.

Genuine Parts Co. v. Du Page County (1992), 236 Ill. App. 3d 685, cited by Keim in support of its argument, is inapposite. There, Du Page County demanded that the plaintiff pay an impact fee of $13,933.36 three months after it had completed construction of a new building. The plaintiff refused to pay and sought an injunction to prohibit the collection of the fee. Genuine Parts, 236 Ill. App. 3d at 686.

The parties stipulated that the plaintiff met the exemption criteria of section 5 — 918(b). However, Du Page County contended that the exception to the exemption contained in section 5 — 918(c) was applicable. The county argued that the plaintiff received its building permit prior to the effective date of the second enabling act. The plaintiff became liable for the fee at or prior to the time it obtained its building permit. Therefore, the fee should be considered to have been collected as of that time, and pursuant to section 5 — 918(c), the county was not required to “refund” the fee which was “previously collected.” Genuine Parts, 236 Ill. App. 3d at 687-88.

The court rejected the county’s argument and held that “the legislature intended the exception to apply only to the actual refunding of fees which had been previously collected.” (Emphasis added.) (Genuine Parts, 236 Ill. App. 3d at 688.) The statute did not permit Du Page County to collect from the plaintiff the $13,933.36 in impact fees which had not previously been paid. (Genuine Parts, 236 Ill. App. 3d at 688.) In this case, however, the county did collect the impact fees from Keim pursuant to a valid impact fee ordinance which remained in effect under section 5 — 918(a). Thus, Keim is not entitled to a refund.

We next address the plaintiffs’ argument that the enabling acts and ordinances violate the takings clause of the fifth amendment to the Constitution. The parties agree that in order for the impact fees to pass constitutional muster the need for road improvement impact fees must be “specifically and uniquely attributable” to the new development paying the fee. (Pioneer Trust & Savings Bank v. Village of Mount Prospect (1961), 22 Ill. 2d 375, 380.) In Pioneer Trust, the Village of Mount Prospect adopted an ordinance which provided that subdividers of real estate must dedicate for public use one acre of land for each 60 residential building sites. (Pioneer Trust, 22 Ill. 2d at 377.) The plaintiff, who was in the business of subdividing real estate for residential purposes, refused to dedicate land which the village intended to use as school grounds. (Pioneer Trust, 22 Ill. 2d at 378.) The plaintiff brought a mandamus proceeding to compel the village to approve its subdivision plat. Pioneer Trust, 22 Ill. 2d at 376.

The supreme court held that “if the burden cast upon the subdivider is specifically and uniquely attributable to his activity, then the requirement is permissible; if not, it is forbidden and amounts to a confiscation of private property in contravention of the constitutional prohibitions rather than reasonable regulation under the police power.” (Pioneer Trust, 22 Ill. 2d at 380.) The court further held that the need for new school facilities was due to the total development of the community and that the plaintiff should not be required to pay the total cost of remedying the school problem. (Pioneer Trust, 22 Ill. 2d at 381.) The ordinance therefore imposed an unreasonable condition precedent for the approval of a subdivision plat. Pioneer Trust, 22 Ill. 2d at 382.

In the present case, the second enabling act mandates that the “construction, improvement, expansion or enlargement of new or existing roads, streets, or highways for which an impact fee is imposed must be specifically and uniquely attributable to the traffic demands generated by the new development paying the fee.” (Emphasis added.) 605 ILCS 5/5-906(a)(l) (West 1992).

The second enabling act defines “[s]peeifically and uniquely attributable” to mean:

“a new development creates the need, or an identifiable portion of the need, for additional capacity to be provided by a road improvement. Each new development paying impact fees used to fund a road improvement must receive a direct and material benefit from the road improvement constructed with the impact fees paid. The need for road improvements funded by impact fees shall be based upon generally accepted traffic engineering practices assignable to the new development paying the fees.” 605 ILCS 5/5-903 (West 1992).

Thus, in order for Du Page County to comply with the “specifically and uniquely attributable” test, it can only impose impact fees for the road improvements made necessary by the additional traffic generated by new development. Further, the new development paying the impact fee must receive a direct and material benefit from the improvement financed by the impact fee.

We hold that Du Page County’s impact fee program complies with both requirements. The formula used by the county imposes fees only on the road improvement costs generated by new development. In order to quantify the amount of travel generated by new development and the costs of road improvement, the county used data from several different sources. To determine roadway construction costs, Du Page used county records and a study of county land values. To measure the traffic generated by different types of development, the county used the Chicago Area Transit (CATS) model, which mathematically traces cars as they leave particular developments and enter on the roads. The county also used trip-generation data collected by the Institute for Transportation Engineering.

Furthermore, Du Page County developed its own computer model which gave it the ability to model future travel based on new development. The county did travel surveys which allowed it to determine which road segments were deficient due to existing development. Impact fee funds are not spent on those roads. James Nicholas, a professor at the University of Florida who surveyed 238 impact fee programs around the country, testified that the data collected by Du Page County was “overwhelming” and demonstrated a level of effort that he had never before seen.

The plaintiffs contend that the data collected by the county is deficient because its studies only analyzed the effects of generic housing units on traffic within an impact fee district, and did not take into account factors such as the size of the house or the number of automobiles per house. However, Harold Crane, who oversaw the development of the county's computer model, testified that such data is not relevant in determining trip generation rates. We hold that the data gathered by Du Page County ensures that it imposes impact fees only for the improvements made necessary by new development.

We also hold that the new developments receive direct and material benefit from the road improvements financed by their impact fees. Du Page County divided itself into 11 districts based on the following criteria: location of existing and proposed municipal boundaries; locations of major developable parcels of land; existing major retail/employment centers; location of potential transportation corridors; CATS one-quarter-section-based zone system; and the existing county highway system. The funds collected from new development in a particular district are used to finance improvements in that same district. Testimony at trial established that fee payers in a district do benefit from the decrease in congestion resulting from the improvements made in that district.

The plaintiffs argue that new developments do not receive direct and material benefit from the road improvements financed by impact fees since, according to the way the districts are drawn, the fees collected in one town can be spent in multiple other towns. However, there is no requirement that the improvements financed by impact fees must be used exclusively or overwhelmingly by the development paying the fee. See 605 ILCS 5/5 — 906(c) (West 1992) (“An impact fee shall not be deemed invalid because payment of the fee may result in a benefit to other owners or developers within the service area or areas, other than the person paying the fee”).

The road improvements for which Du Page County imposes its impact fees are specifically and uniquely attributable to the traffic demands generated by the new development paying the fees. The fees imposed on new development are therefore not a confiscation of private property in violation of the fifth amendment, but are instead a reasonable regulation under the police power. Pioneer Trust, 22 Ill. 2d at 380.

The plaintiffs next argue that the Du Page County ordinances do not comply with the second enabling act because the ordinances use averages in their fee formula to predetermine fees for various types of developments. The plaintiffs contend that the second enabling act requires an individually tailored fee calculation for each new development.

However, in its definition of “[specifically and uniquely attributable,” the second enabling act states that the “need for road improvements funded by impact fees shall be based upon generally accepted traffic engineering practices as assignable to the new development paying the fees.” (Emphasis added.) (605 ILCS 5/5 — 903 (West 1992).) Professor Nicholas testified that the fee calculation method complies with generally accepted traffic engineering practices and that approximately 80% of road impact fees use the same formula. Jan Bruckner, a professor of economics at the University of Illinois, testified that most impact fee ordinances of which he was aware used averages to predetermine impact fees. Du Page County’s use of its fee formula complies with the requirements of the second enabling act.

The plaintiffs next argue that the impact fees are real property taxes which bear no relation to the value of the property taxed. Therefore, the ordinances violate section 4(a) of article IX of the Illinois Constitution of 1970, which states that “[e]xcept as otherwise provided in this Section, taxes upon real property shall be levied uniformly by valuation ascertained as the General Assembly shall provide by law.” (Ill. Const. 1970, art. IX, §4(a).) Du Page County responds that its ordinances provide for regulatory fees, not taxes.

The court in Home Builders & Contractors Association of Palm Beach County, Inc. v. Board of County Commissioners (Fla. Dist. Ct. App. 1983), 446 So. 2d 140, decided that a similar impact fee ordinance constituted a regulation, not a tax. We find their reasoning to be persuasive. The Home Builders court first determined that the ordinance was meant to help pay for the cost of road construction necessitated by new development. (Home Builders, 446 So. 2d at 145.) The court determined that the cost of construction of additional roads would exceed the revenue produced by the impact fees. (Home Builders, 446 So. 2d at 145.) It noted that the formula for calculating the fee was not inflexible, but allowed the person improving the land to furnish his own data to demonstrate that his share is less than the amount under the formula. (Home Builders, 446 So. 2d at 145.) Lastly, expenditure of the funds collected was localized by virtue of their zone (district) system. Home Builders, 446 So. 2d at 145.

The Du Page County impact fee ordinances are also meant to help pay for the cost of road improvements made necessary by new development. Trial testimony established that the impact fees understate the costs of road improvement and are in fact substantially below the national average. The person improving the land is allowed to furnish his own data to demonstrate that his fair share of road improvement is less than the amount under the formula. Finally, expenditure of the funds is localized by virtue of the district system. We hold that the impact fee ordinances impose a regulatory fee on new development and not a tax.

The plaintiffs next contend that the impact fees violate the uniformity clause of the Illinois Constitution of 1970. (Ill. Const. 1970, art. IX, §2.) The uniformity clause provides that “[i]n any law classifying the subjects or objects of non-property taxes or fees, the classes shall be reasonable and the subjects and objects within each class shall be taxed uniformly.” (Emphasis added.) Ill. Const. 1970, art. IX, §2.

The plaintiffs argue that the county has acted arbitrarily by imposing impact fees only on new development, since the roads financed by the fees benefit the public as a whole. The plaintiffs are again arguing that the improvements financed by impact fees must be used exclusively by the development paying the fee. However, the uniformity clause does not require that those persons who pay the fees receive the sole benefit therefrom. Rather, the clause requires that the classification of a fee must be based on a real and substantial difference between those persons assessed a fee and those who are not and must bear a reasonable relationship to a legislative purpose. Searle Pharmaceuticals, Inc. v. Department of Revenue (1987), 117 Ill. 2d 454, 468.

As discussed above, the county has gathered extensive data quantifying the amount of traffic generated by new development as opposed to existing development. It has also gathered data on the road improvement costs made necessary by the additional traffic generated by the new development. Impact fees are only imposed on new developments in order that they pay their proportionate share of the road improvement costs necessitated by the additional traffic which they generate. Thus, there is a real and substantial difference between those new developments which generate the additional traffic,, and the existing developments which do not.

The plaintiffs contend that the impact fees violate the uniformity clause because they differ among the 11 districts. However, each district has different road improvement costs made necessary by the additional traffic generated by new development. The districts were not created arbitrarily, but were based primarily on the location of existing and proposed municipal boundaries, the existing county highway system, and the CATS one-quarter-section-based zone system. Thus, the different impact fees reflect the real and significant differences among the districts.

The plaintiffs argue that the impact fees are not uniformly imposed because there are currently three districts where no impact fees are due. However, the same fee formula is used among all of the districts. That formula provides credits for motor fuel and property taxes and travel on noncounty roads. In the three “zero-fee” districts, the credits exceed the fee that would be due. Unlike new developments in the other districts, the new developments in the “zero-fee” districts generate enough money to cover the costs of road improvements.

We hold that the classifications created by Du Page County are based on real and substantial differences between the persons assessed a fee and those who are not. Further, they bear a reasonable relationship to the legislative purpose of assuring that new development bears its fair share of the cost of meeting the demand for road improvements. Therefore, the impact fees imposed by Du Page County do not violate the uniformity clause.

We next address the plaintiffs’ argument that the enabling acts and ordinances violate the right of intrastate travel. The right to travel analysis is a particular application of equal protection analysis. (Zobel v. Williams (1982), 457 U.S. 55, 72 L. Ed. 2d 672, 102 S. Ct. 2309.) The plaintiffs contend that the right of intrastate travel is a fundamental right and therefore strict scrutiny is required. However, although the Supreme Court had declared that the right of interstate travel is a fundamental right (Shapiro v. Thompson (1969), 394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322), it has not addressed the question whether the right of intrastate travel is also fundamental. See Memorial Hospital v. Maricopa County (1974), 415 U.S. 250, 39 L. Ed. 2d 306, 94 S. Ct. 1076.

Further, a law implicates the right to travel only when it actually deters such travel, when impeding travel is its primary objective, or when it “penalizes” the exercise of that right. (Attorney General v. Soto-Lopez (1986), 476 U.S. 898, 90 L. Ed. 2d 899, 106 S. Ct. 2317.) The plaintiffs argue that the county’s impact fees penalize the right to travel. However, the Supreme Court has found that a law penalizes the right to travel only when it denies new residents “the same right to vital government benefits and privileges” (Memorial Hospital, 415 U.S. at 261, 39 L. Ed. 2d at 317, 94 S. Ct. at 1084) as are enjoyed by other residents. See Shapiro, 394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (durational residency requirement for welfare assistance penalized right to travel); Memorial Hospital, 415 U.S. 250, 39 L. Ed. 2d 306, 94 S. Ct. 1076 (durational residency requirement for free medical care penalized the right to travel).

We do not believe that the impact fee program established by Du Page County denies new residents of the county any vital government benefits and privileges that are enjoyed by other residents. We therefore decline to apply strict scrutiny analysis to the plaintiffs’ equal protection claim. Since no fundamental rights or suspect classifications are involved, there need only be a rational basis for distinguishing the class to which the law applies from the class to which the law is inapplicable. (People v. Blackorby (1992), 146 Ill. 2d 307, 318.) We have already determined that there is a real and substantial difference between those persons who pay the impact fees and those who do not. The county’s impact fee program therefore complies with the requirements of the equal protection clause. See Geja’s Cafe v. Metropolitan Pier & Exposition Authority (1992), 153 Ill. 2d 239, 247 (constitutionality under the uniformity clause inherently fulfills the requirements of the equal protection clause).

We next address the plaintiffs’ argument that both enabling acts violate the constitutional prohibition against special legislation. That provision states: “The General Assembly shall pass no special or local law when a general law is or can be made applicable. Whether a general law is or can be made applicable shall be a matter for judicial determination.” Ill. Const. 1970, art. IV, §13.

A legislative classification based upon population is valid if there is a rational difference of situation or condition existing in the persons or objects upon which the classification rests and there is a reasonable basis for the classification in view of the purposes to be accomplished. (In re Belmont Fire Protection District (1986), 111 Ill. 2d 373, 380.) The burden of establishing the arbitrariness of a classification lies with the person attacking its validity. (Belmont, 111 Ill. 2d at 380.) All reasonable doubts must be resolved in favor of upholding the legislation. Belmont, 111 Ill. 2d at 380.

The plaintiffs argue that the first enabling act constitutes special legislation because it enables only counties with populations between 400,000 and 1 million (Lake and Du Page Counties) to implement impact fee ordinances. The plaintiffs contend that there is no reason why counties with populations less than 400,000 should not have the power to impose impact fees. In support of this argument, they cite the trial testimony of civil engineers Karl Fry and Richard Hocking that counties with less than 400,000 people have competent highway departments and are technically able to implement impact fee programs.

However, Karl Fry also testified that counties with populations greater than 400,000 have higher levels of traffic congestion than other counties. Richard Hocking testified as to the high level of traffic congestion in Du Page County and stated that the statutory distinction between counties was based on a rational difference of situations between the counties. Lane Kendig, who is a city and regional planner, testified that counties with more than 400,000 people had the highest numbers of persons per mile of road, the most road miles per square mile, the highest average daily vehicle miles per road mile, the highest average daily vehicle miles per square mile, and the highest population density per square mile.

Thus, since counties with more than 400,000 persons suffer worse traffic congestion than counties with fewer than 400,000 persons, there is a rational difference of condition upon which the population classification rests. There is also a reasonable basis for the classification in view of the legislative purpose of alleviating traffic congestion through a new method of financing road improvements.

The plaintiffs next argue that the first enabling act constituted special legislation because it did not authorize counties with over 1 million persons to implement impact fees. The plaintiffs cite Kendig’s testimony that Cook County, with a population of over 5 million persons, had the greatest population density per square mile, the most average daily vehicle miles per square mile, the most average daily vehicle miles per road mile, and more road miles per square mile than any other county.

However, Kendig also testified that Cook County’s population decreased from 1980 to 1990, whereas Du Page and Lake Counties had “very significant” population increases. Thus, the legislature could have reasonably determined that Du Page and Lake Counties had a more immediate need for new road construction than Cook County. The plaintiffs have not met their burden of establishing the arbitrariness of the classification. We hold that the first enabling act did not constitute special legislation.

The plaintiffs next argue that the second enabling act violates the constitutional prohibition against special legislation because it allows home rule units, as well as counties with populations over 400,000, to implement impact fees. The plaintiffs contend that many home rule units have small populations and little traffic congestion. Hence, for purposes of implementing an impact fee program, there is no rational difference of situation between home rule units and counties with fewer than 400,000 persons.

However, the second enabling act created no powers for home rule units which they did not already possess by virtue of the constitution. Section 6 of article VII of the Illinois Constitution provides the authority for home rule units to exercise any power and perform any function pertaining to the government and affairs of the unit. (Ill. Const. 1970, art. VII, §6.) Thus, home rule units had the power under the Illinois Constitution to implement impact fees prior to the passage of the second enabling act. The second enabling act is not made special or local by merely incorporating home rule units within its scope.

We next address the plaintiffs’ argument that the appeals section provided in the ordinances violates procedural due process because it is too costly and time-consuming. The fundamental requirement of procedural due process is the opportunity to be heard at a meaningful time and in a meaningful manner. (People v. P.H. (1991), 145 Ill. 2d 209, 235.) Due process is a flexible concept which calls for such procedural protections as a particular situation demands. Atwood v. Warner Electric Brake & Clutch Co. (1992), 239 Ill. App. 3d 81, 89.

The ordinances provide two different appeals sections. The first, entitled “Interpretation of Ordinance and Fee Schedule and Appeals,” provides that interpretations of the provisions of the ordinance shall be made by the superintendent of highways of Du Page County. Any decision by the superintendent may be appealed to the division of transportation committee. The decision of the committee may be appealed to the county board.

A developer uses this appeals process when he wants to challenge the county’s classification of his proposed development. For example, the county might classify a proposed development as an office land use. The developer can attempt to demonstrate that his proposed development is in fact a residential land use and, thus, entitled to a smaller fee. If the developer is successful, the county would adjust his fee accordingly.

The other appeals section, entitled “Individual Assessment of Impact,” allows a developer to provide an individual assessment of the impact of his proposed development upon the transportation system in the county. The individual assessment must be calculated according to the fee formula used by the county in developing its fee tables. The individual assessment must use trip-generation data collected from local empirical surveys, and it must be prepared by “professionals, qualified by the County in accordance with established procedures, in the field of transportation planning and engineering and impact analysis.” (Du Page County, Ill., Ordinance ODT — 021C—89 §12(3) (July 25, 1990).) The Superintendent must approve the proposed fee if he determines that “the traffic information, traffic factors, and methodology used to determine the proposed impact fee are professionally acceptable and fairly assess the costs for capital improvements to the road, street and highway systems in the County.” Du Page County, Ill., Ordinance ODT — 021C—89 §12(5) (July 25,1990).

The plaintiffs argue that the county is allowed to use averages when developing its fee tables, whereas the developers who make an individual assessment are required to provide empirical data specifically relating to the proposed development. The plaintiffs contend that the collection of such empirical data is so difficult and time-consuming as to preclude any meaningful appeals.

In support of their argument, the plaintiffs cite the testimony of Harold Crane, who obtained empirical data about trip-generation rates while he was developing the computer model used by Du Page County. Crane testified that it took months to obtain useful data. However, Crane was collecting data in order to develop trip-generation rates for developments all over the county. In contrast, a developer providing an individual assessment is only collecting trip-generation rates for his proposed development. The plaintiffs have not established that the collection of such data is so difficult and time-consuming as to preclude any meaningful appeals.

The plaintiffs next argue that the current impact fee ordinance violates due process by imposing a 15% penalty for appealing the imposition of impact fees. The ordinance provides that “in order to encourage the use of the above fee schedule, if an applicant chooses to pay any applicable fee in accordance with such schedule, the fee which would otherwise be due and owing shall be discounted by 15%. Developers who choose to conduct an Individual Assessment *** shall forfeit the 15% discount.” Du Page County, Ill., Ordinance ODT — 021C—89 §11(2).

This court has defined the word “penalty” to include fines, forfeitures and other forms of punishment. (Wilkes v. Deerfield-Bannockburn Fire Protection District (1979), 80 Ill. App. 3d 327, 329-30.) Black’s Law Dictionary also defines “penalty” as the “idea of punishment, corporeal or pecuniary, or civil or criminal, although its meaning is generally conferred to pecuniary punishment.” (Black’s Law Dictionary 1020 (5th ed. 1979).) The forfeiture of the 15% discount confers a pecuniary punishment, or penalty, upon those developers who choose to appeal the fees imposed according to the fee schedule. The imposition of a penalty for having pursued a right to appeal is a violation of due process of law. (North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072.) Although Pearce involved the rights of a criminal defendant to pursue a constitutional or statutory right of appeal without penalty, we believe that an appellant in a civil case has the same right. Accordingly, we hold that the provision in section 11(2) of ordinance ODT — 021C—89, which states that developers who choose to conduct an individual assessment shall forfeit the 15% discount, is unconstitutional.

Having determined that the forfeiture provision violates due process, we must consider whether it is severable from the rest of the ordinance. “ ‘Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.’ ” Buckley v. Valeo (1976), 424 U.S. 1, 108-09, 46 L. Ed. 2d 659, 739, 96 S. Ct. 612, 677, quoting Champlin Refining Co. v. Corporation Comm’n (1932), 286 U.S. 210, 234, 76 L. Ed. 1062, 1078, 52 S. Ct. 559, 565.

The ordinance contains a statement that its provisions are sever-able. Further, the forfeiture provision may be severed without doing violence to the rest of the ordinance. The ordinance is still operative and it still serves the legislature’s intent of ensuring that new developments pay their fair share of road improvements. Since the legislative purpose is not defeated by the invalidation of the forfeiture provision, we may leave the remainder of the ordinance in force.

The plaintiffs have not proven that Du Page County actually penalized them for taking an appeal. Therefore, our decision to invalidate the forfeiture provision in ordinance ODT — 021C—89 does not require that any monies be refunded to them.

For the foregoing reasons, we hold that: (1) Joe Keim Builders, Inc., is not entitled to a refund of the $12,987 it paid in impact fees from September 5, 1989, to March 10, 1990; (2) both enabling acts are constitutional; (3) the penalty provision in section 11(2) of ordinance ODT — 021C—89, which states that developers who choose to conduct an individual assessment shall forfeit the 15% discount, violates due process but is severable from the remainder of the ordinance; and (4) the plaintiffs are not entitled to the return of the monies paid pursuant to the enabling acts and impact fee ordinances.

Affirmed in part; reversed in part.

BOWMAN and COLWELL, JJ., concur.


author: JUSTICE COLWELL

text:
    N B D HIGHLAND PARK BANK, N.A., Plaintiff-Appellee, v. ROBERT E. WIEN et al., Defendants-Appellants.
    Second District
    No. 2—92—1412
    Opinion filed October 26, 1993.
    — Rehearing denied November 16, 1993.
    Hercules Paul Zagoras, of Hercules Paul Zagoras & Associates, Ltd., of Waukegan, and Scott R. Halloin, of Freeman, Freeman & Salzman, P.C., of Chicago (James T. Malysiak, of counsel), for appellants.
    Ethan E. Trull, of Seyfarth, Shaw, Fairweather & Geraldson (Paul F. Donahue, of counsel), Karon Sheldon, of Keck, Mahin & Kate, Martin W. Salzman, of Schwartz, Cooper, Kolb & Gaynor, Chartered, and Paul D. Rudnick, of Rudnick & Wolfe, all of Chicago, for appellee.
   JUSTICE COLWELL

delivered the opinion of the court:

This appeal arises from a foreclosure action against a residential property (the property) in Highland Park, Illinois, owned by Robert E. Wien (Robert) and his wife, Miriam. The original plaintiff, NBD Highland Park Bank, N.A. (Bank), filed a foreclosure action against the property, and its first mortgage was uncontested. Robert’s brother Byron R. Wien (Byron) joined in that action, claiming a junior lien against the property. Byron objected to the sale of the property to Katahn Associates, Inc. (Katahn), a former codefendant in the Bank’s lawsuit. Katahn purchased the Bank’s lien and substituted as plaintiff. Byron appeals from the circuit court’s order confirming the sale of the property to Katahn. ■

The issues raised on review involve questions of both law and fact. Specifically, we are asked to determine: (1) whether the circuit court erred by permitting the property to be sold at a foreclosure sale before determining the priorities of Katahn’s and Byron’s lien interests, and (2) whether the circuit court erred in confirming the foreclosure sale despite Byron’s objections that he was not informed of the sale date and that the circuit court lacked jurisdiction over the case when the sale date was set and the sale was held. We note that the issue of priorities subsumes crucial questions about the validity of Byron's claim. We reverse and remand.

On December 6, 1988, the Bank received a mortgage from Robert and Miriam Wien. The Bank held an undisputed first security interest in the property by recording its mortgage in Lake County on December 9,1988.

On October 10, 1991, Katahn obtained a Federal court judgment against Robert, based upon mail fraud, wire fraud, and conversion, in the amount of $233,935, trebled under the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. §1961 et seq. (1982)) to $701,805. Katahn recorded its judgment in Lake County on November 6,1991.

On January 24, 1992, the Bank filed a complaint to foreclose its mortgage on Robert and Miriam’s house pursuant to section 15 — 1504 of the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15 — 1504 (West 1992)). In addition to the Wiens, the complaint named as defendants the Chicago Title & Trust Company, the United States, which had a tax lien upon the property, and two judgment creditors. One of the judgment creditors was Katahn, whose interest in the property was a part of its settlement agreements with Robert.

On April 30, 1992, Byron joined Chicago Title & Trust Company in the foreclosure action. Byron claimed a junior lien against the property based upon two 1988 principal notes signed by his brother Robert and a 1989 trust deed signed by Robert and Miriam. The notes were in return for loans Byron made to Robert on February 17, 1988, and March 9, 1988, in the amounts of $100,000 and $170,000, respectively. The trust deed, recorded on February 2, 1989, with the Chicago Title & Trust Company as trustee, allegedly pledged Robert’s home as security for the notes.

On May 4, 1992, Katahn filed its answer and counterclaim seeking to foreclose its judgment lien against Robert’s property. Katahn alleged that Byron’s interest in the property was void, or at least subordinate to Katahn’s judgment lien, for lack of consideration. In the alternative, Katahn claimed that Byron’s interest was void or subordinate to Katahn’s interest because it was a fraudulent conveyance from Robert and Miriam to shield their house from their creditors.

On May 18, 1992, the circuit court entered a final judgment for foreclosure and sale. The circuit court found that the sum of $701,805 was due and owing Katahn, as a lien upon the property that was subordinate and inferior to the lien and interest of the Bank. The court stated that the sum due and owing to Chicago Title & Trust Company pursuant to its verified pleadings was “to be determined.” The circuit court deferred determination of the priority of the lienholders’ interests, stating that it “retained jurisdiction to determine the relative priorities of the *** liens at or before confirmation of sale pursuant to Ch. 110, ILL. REV. STAT. Sec. 15 — 1508(b)(3) and Sec. 15 — 1506(h).”

On the same day, May 18, the Bank noticed and scheduled the sheriff’s sale of the property for August 31, 1992, and the circuit court filed a second order setting a hearing on the validity and priority of liens for July 27, 1992.

On July 13, 1992, Katahn filed a motion for summary judgment against Byron, based, in part, upon its discovery that the two principal notes upon which Byron’s interest was allegedly based had been stamped “canceled” approximately three years before. This action followed the filing of Byron’s first amended counterclaim on June 1, 1992, in which he again alleged that his interest in the property was based upon the original two 1988 principal notes. In response to Katahn’s motion for summary judgment, Byron filed a second amended counterclaim on July 27, 1992, asserting that his interest in the property was based upon a different pair of principal notes. Byron filed a motion for summary judgment against Katahn on August 13,1992.

On August 24, 1992, the circuit court denied both motions for summary judgment on the ground that there were triable issues of fact. The matter was continued until August 31, 1992, following the foreclosure sale, for the setting of a bench trial date. On August 24, 1992, Katahn also substituted as plaintiff in this action, having purchased the Bank’s lien on August 18.

On August 26, 1992, Robert filed for protection under chapter 11 of the United States Bankruptcy Code (11 U.S.C. §1101 et seq. (1982)). The sheriff’s sale was continued to September 21, 1992. On August 31, the circuit court placed this case on the progress call for November 20, 1992. On September 10, 1992, Byron removed this case to the bankruptcy court, asserting that Katahn’s fraudulent transfer allegations constituted a “core proceeding” arising under title 11 and that a transfer found to be fraudulent would be preserved for the benefit of Robert’s estate.

Katahn sought relief from the bankruptcy court, moving to lift the automatic stay and to remand this case to the circuit court. While these motions were pending in the bankruptcy court, Katahn twice adjourned and continued the sheriff’s sale from September 21, 1992, to September 28, 1992, and then again to October 12, 1992. Katahn maintains that each continuance of the sale was properly noticed by public proclamation. Byron claims that he had insufficient notice of the continuances and that Katahn was obligated to send Byron copies of his counsel’s letters to the sheriff confirming them.

On October 5, 1992, following an evidentiary hearing, the bankruptcy court allowed the motions to remand and to modify stay. Ruling from the bench, the bankruptcy court found that lien priority disputes were not “core proceedings” in the United States Court of Appeals for the Seventh Circuit. The court noted further reasons for its orders, including judicial economy, better protection of Miriam Wien’s interests, and its view that questions of State law are more appropriately and better addressed by a State court. The bankruptcy court also stated its opinion that the Illinois Mortgage Foreclosure Law provides for the protection of the debtor’s interests and the maximization of the potential market value of the property.

The sheriff’s sale was held on October 12, 1992. The orders to remand and to lift the stay were docketed by the bankruptcy court’s clerk on October 14 and 15, respectively.

On November 9, 1992, the circuit court confirmed the sale of the property for $121,760.25. Byron filed a notice of appeal on November 25, 1992. On November 27, 1992, Katahn’s attorney and his wife purchased the property from Katahn for $310,000. The circuit court granted a stay of its order confirming the foreclosure sale on December 1, 1992. The deadline for posting an appeal bond was extended from December 16, 1992, to January 6, 1992, when the bond was filed and approved.

The first issue we address is whether the circuit court lacked jurisdiction over the cause at the time the foreclosure sale was held. We believe the established rule in Federal courts is clearly stated by the United States Court of Appeals for the Fifth Circuit:

“Orders do not become final until they are docketed. The reasons for respecting finality of judgments do not apply to undocketed orders. They cannot be enforced. They cannot be appealed. Hence, judges may change their decisions until they are docketed.” (In re American Precision Vibrator Co. (5th Cir. 1989), 863 F.2d 428, 429.)

Moreover, Bankruptcy Rule 9021 (Bankr. Proc. R. 9021, 11 U.S.C.A. (West 1993)) provides that “[a] judgment is effective when entered as provided in Rule 5003,” and Rule 5003 (Bankr. Proc. R. 5003, 11 U.S.C.A. (West 1993)) requires that the clerk enter each judgment and order on a docket.

Here, the remand order was not entered on the bankruptcy court’s docket sheet until October 14, 1992, and the order lifting the stay was not entered until October 15.

Katahn’s counterargument is based on Noli v. Commissioner of Internal Revenue (9th Cir. 1988), 860 F.2d 1521. In Noli, the defendants filed bankruptcy petitions that automatically stayed a trial in the tax court. The government’s counsel moved the bankruptcy court for relief from the automatic stay, which the court granted by an oral order. The government then immediately proceeded with the trial based upon the bankruptcy court’s undocketed oral order. The defendants argued that the tax court proceedings were improper because the bankruptcy court’s oral order lifting the automatic stay had not been docketed. The Noli court replied as follows:

“This argument misperceives both the purpose of Fed. R. Civ. P. 58, and the binding effect of an order notwithstanding the issuing court’s failure to enter it on the docket. The ‘separate document’ requirement of Rule 58 was intended primarily to clear up uncertainties in determining, for purposes of appellate review, when there is a final appealable judgment. See Bankers Trust Co. v. Mallis, 435 U.S. 381, 384, 98 S. Ct. 1117, 1120, 55 L. Ed. 2d 357 (1978) (The ‘sole purpose’ of the separate document requirement is ‘to clarify when the time for appeal ... begins to run’). Similarly, the bankruptcy court’s order lifting the stay was effective and binding upon the parties. *** They were present when the oral order was issued and clearly had notice of its existence and content.” Noli, 860 F.2d at 1525.

According to Katahn, both Byron and Miriam Wien were represented by counsel at the bankruptcy hearing on October 5, 1992, and heard the ruling from the bench that the motions to remand and to modify stay were allowed. Furthermore, both Wiens received copies of the bankruptcy court’s written orders signed and entered on October 9, 1992, and, on the same day, Katahn filed with the circuit court a copy of the order modifying the automatic stay. Katahn contends that, like the defendants in Noli, Byron had notice that the orders existed, and he knew the content of those orders; therefore, the automatic stay was no longer in effect, and the sheriff acted properly when he conducted the sale on October 12,1992.

We believe Katahn’s reliance upon Noli is misplaced. As the United States Court of Appeals for the Ninth Circuit clarified in a subsequent opinion (Blazak v. Ricketts (9th Cir. 1992), 971 F.2d 1408), Noli requires a petitioner to establish that he was prejudiced by the bankruptcy court’s failure to enter a separate judgment. (Blazak, 971 F.2d at 1409 n.2; Noli, 860 F.2d at 1525.) In Noli, it was proper for the tax court to proceed before the lift stay order was docketed because neither party was prejudiced by resuming the trial in midstream. In the present case, departing from the Federal civil procedure rules clearly prejudiced Byron, since the continued trial was never held, and the property was prematurely sold.

The addition of Federal Rules of Civil Procedure 58 in 1963 did not alter the prior law that the entry of judgment is to be determined by the date the appropriate notation is made in the civil docket. (Eulo v. Deval Aerodynamics, Inc. (E.D. Pa. 1969), 47 F.R.D. 35, 40; see also 7 (part 2) J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice §79.02[2], at 79 — 12 (Supp. 1993); 12 C. Wright & A. Miller, Federal Practice & Procedure §3103, at 189 (1973).) Therefore, we find that the circuit court lacked jurisdiction over the case when the foreclosure sale was held.

Next, we address whether the circuit court erred by permitting the property to be sold at a foreclosure sale before determining the priorities of the disputed lien interests. Section 15 — 1506(h) of the Foreclosure Law states: “With the approval of the court prior to the entry of the judgment of foreclosure, a party claiming an interest in the proceeds of the sale of the mortgaged real estate may defer proving the priority of such interest until the hearing to confirm the sale.” (735 ILCS 5/15 — 1506(h) (West 1992).) Thus, a party claiming an interest in the proceeds of the sale of mortgaged real estate may elect to defer proving the priority of his interest until after the foreclosure sale is held, provided the party so electing first seeks and gains the approval of the court. The record on appeal shows that Byron did not defer proving the priority of his interest.

Byron maintains that on August 24, 1992, the circuit court, sua sponte, ordered a deferral of the determination of priority until after the sale. Katahn responds that no such order was entered. It is true that the August 24 order does not mention deferral. However, the transcript of the hearing clearly reveals the circuit court’s intention to meet with the parties after the sale to set a trial date in order to determine the validity and the priority of the lien interests. Although not explicitly stated in the order, we believe that the sequence of events as scheduled by the circuit court constituted a deferral of the priority issue.

Katahn argues that Byron has waived this issue because he did not appeal within 30 days from the circuit court’s May 18, 1992, judgment for foreclosure and sale. Katahn cites the order’s statement that “the Court retains jurisdiction to determine the relative priorities of the *** liens at or before confirmation of sale” and notes that the judgment contains an express finding that there is no just cause for delaying enforcement or appeal.

We believe that the failure to file an immediate appeal on the basis of the court’s statement quoted above was reasonable given the further pronouncements of the court regarding the issue of priority determination. The pertinent part of the court’s statement reads in full, “the Court retains jurisdiction to determine the relative priorities of the *** liens at or before confirmation of sale pursuant to Ck. 110, ILL. REV. STAT. Sec. 15 — 1508(b)(3) and Sec. 15 — 1506(h).” (Emphasis added.) Section 15 — 1508(b)(3) provides that the sale’s confirmation order may “determine the priority of the judgments of parties who deferred proving the priority pursuant to subsection (h) of Section 15 — 1506.” (735 ILCS 5/15 — 1508(b)(3).) Further into its order, the circuit court sets forth the content of section 15 — 1508(b)(3).

We believe the circuit court’s statements reasonably signify that any proof of priority not deferred by a party would be determined before the confirmation of the sale, while any proof of priority that was deferred by a party might not be determined until the proceedings to confirm the sale.

This interpretation is reinforced by the second order filed by the circuit court on May 18. In that order, the court established a discovery cut-off date of July 20, 1992, and stated that “[t]his matter shall be set for hearing on evidence on the validity and priority of liens on 27 July 1992.” On the same day, the Bank scheduled and noticed a sheriff’s sale for August 31, 1992. Thus, as of May 18, 1992, it appeared that the priorities would be determined prior to the sale.

Katahn further contends that the issue is waived because Byron never argued before the circuit court that it could not defer the determination of priority unless he elected to defer that determination. Katahn urges us to apply the rule that a legal theory not presented below is waived on appeal. We believe that this rule does not apply where the opportunities for presenting arguments and theories were improperly curtailed. Although the circuit court found triable issues of fact, a trial was never held. The possibility of filing post-trial motions was obviously eliminated. Therefore, we conclude that Byron’s argument that the circuit court was statutorily prohibited from deferring the determination of priority is not waived.

The question of the validity of Byron’s lien interest is fundamental to this litigation. When it ordered the foreclosure and sale of the property on May 18, 1992, the circuit court set a date for a “hearing on evidence on the validity and priority of liens.” Katahn’s charge of fraud constituted a serious challenge to the validity of Byron’s lien interest. The circuit court gave Byron leave to file his second amended counterclaim, in which he stated that his lien interest was based on different principal notes. The circuit court’s July 27, 1992, order continued “the trial on the validity and priority of lien.” Byron himself claims that the validity of his interest was never established by the circuit court. Thus, the question of validity, which necessarily precedes any determination of priority, must be resolved first on remand.

Because we reverse on the basis of the above findings, we do not address the question of whether Byron received proper notification of the sale date, nor do we reach the jurisdictional issue of the propriety of the county sheriff’s continuing the sale while the case was in the bankruptcy court.

Three motions were ordered carried with the case. Katahn filed two motions to dismiss this appeal. In the first, Katahn asserted that the sale of the residence to its attorney and his wife occurred before Byron obtained a stay and therefore rendered Byron’s appeal moot. Katahn quotes a portion of Supreme Court Rule 305(i) to support his position. However, Katahn omits the opening clause of Rule 305(i), which modifies the remainder of the provision. The pertinent part of Rule 305(i) reads in full:

“If a stay is not perfected within SO days of the entry of the judgment appealed from, or within any extension of time granted under subparagraph (a)(2) of this rule, the reversal or modification of the judgment does not affect the right, title, or interest of any person who is not a party to the action in or to any real or personal property that is acquired after the judgment becomes final and before the judgment is stayed ***.” (Emphasis added.) 134 Ill. 2d R. 305(i).

See also Town of Libertyville v. Moran (1989), 179 Ill. App. 3d 880, 883-84.

The circuit court granted a stay on December 1, 1992, 22 days after the November 9, 1992, order from which this appeal was taken. The December 1, 1992, stay required the posting of an acceptable bond, and the time for filing such a bond was extended from December 16, 1992, to December 23, 1992, and finally to January 6, 1992, when the bond was filed and approved. Under Rule 305(a)(2) (134 Ill. 2d R. 305(a)(2)), the time for filing and approval of the appeal bond may be extended by the circuit court if such extensions do not aggregate more than 45 days, unless the parties otherwise stipulate. Here, the extension aggregated only 29 days. Thus, the January 6, 1993, order stating that the stay “shall remain in full force and effect” is proper, and Katahn’s first motion to dismiss this appeal is denied.

Katahn’s second motion to dismiss this appeal stems from Katahn’s motion for sanctions against Byron and his attorney. In an order dated May 12, 1993, the circuit court ordered sanctions levied because “reasonable inquiry was not made to find the proper [principal] notes prior to filing [Byron’s] first amended counterclaim.” Asserting that the sanctions order establishes the invalidity of Byron’s lien interest, Katahn reiterates its argument that Byron’s failure to appeal from the circuit court’s original order of foreclosure of May 18, 1992, precluded him from subsequently asserting an interest based on different principal notes.

We read the sanction order more narrowly. As stated above, we believe that the determination of the validity of Byron’s interest, like the determination of the relative priorities, was continued by the circuit court along with the date for the bench trial. Sanctions for failure to make a reasonable inquiry during this period of continuance do not alter our view that the questions of validity and priority were still pending before the circuit court when the foreclosure sale was conducted. Therefore, Katahn’s second motion to dismiss this appeal is denied.

Katahn also moves to strike certain parts of Byron’s reply brief, namely, copies of pleadings filed by Katahn in the bankruptcy court and a footnote referring to one of the pleadings. Katahn asserts that this material was not considered by the circuit court and should not be part of the record on appeal. Byron responds that the material reveals an inconsistency between Katahn’s positions on appeal and in the bankruptcy court with respect to determining the relative priorities of the disputed lien interests before conducting the sale.

It is well settled that public documents that are included in the records of other courts and administrative tribunals may be the subject of judicial notice. (May Department Stores Co. v. Teamsters Un ion Local No. 743 (1976), 64 Ill. 2d 153, 159; First State Bank v. Leffelman (1988), 167 Ill. App. 3d 362, 367.) However, we are not concerned here with the consistency of Katahn’s position regarding the determination of priority by the circuit court. Our finding of error in permitting and confirming the sale before determining the relative priorities rests on the pertinent statutory provisions. The new material presented in Byron’s reply brief is not helpful to our present purpose, and we decline to take judicial notice of it. Therefore, Katahn’s motion to strike is granted.

For the reasons stated above, the order of the circuit court of Lake County confirming the sale is reversed, the sale is vacated, and the cause is remanded. The circuit court is directed to conduct proceedings to determine the validity of Byron’s lien interest and the relative priority of any valid interest and to order a new sale of the foreclosed property.

Reversed and remanded.

INGLIS, P.J., and DOYLE, J., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARTIN RODRIGUEZ, Defendant-Appellee.
    Third District
    No. 3—93—0025
    Opinion filed October 29, 1993.

      James Glasgow, State’s Attorney, of Joliet (John X. Breslin and Lawrence Michael Kaschak, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The trial court dismissed with prejudice the criminal complaint filed against the defendant, Martin Rodriguez. The State appeals, and we reverse.

Initially, we note that the defendant has not filed an appellee’s brief. Nevertheless, since the record is simple and the issue is clear, we will address the merits of the case. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

In the case at hand, the record shows that on February 14, 1992, the defendant was charged by criminal complaint with unlawful possession of cannabis. Following several delays, the defendant’s case was set for a bench trial on September 1, 1992. On that date, the State filed a motion to continue which the trial court granted. However, the court made a finding that the State had failed to exercise due diligence in pursuing the prosecution.

On September 16, 1992, the case was called for trial at 9:45 a.m. At that time, the State informed the judge that its witnesses were not present and asked the court to pass the case to the end of the court call. The court refused to pass the case, and, following a short recess, it called the case for trial. The State made a motion for continuance, which the trial court denied. The court then dismissed the case with prejudice, finding that the State had failed to use due diligence in prosecuting the case in violation of section 114 — 4(e) of the Code of Criminal Procedure of 1963. Ill. Rev. Stat. 1991, ch. 38, par. 114 — 4(e).

On appeal, the State argues that the trial court erred in dismissing the case pursuant to section 114 — 4(e). Specifically, it alleges that the court lacked authority to dismiss the case since section 114 — 4(e) only allows for the dismissal of cases in which the defendant is charged by indictment or information.

Section 114 — 4(e) states that all motions for continuance are addressed to the discretion of the trial court and shall be considered in the light of the diligence shown on the part of the movant. Where one year has expired since the filing of an information or indictment, if the court finds that the State has failed to use due diligence in bringing the case to trial, on its own motion the court may dismiss the information or indictment. Ill. Rev. Stat. 1991, ch. 38, par. 114 — 4(e).

We note that this court, in dictum, has already addressed the issue of whether section 114 — 4(e) applies to criminal complaints. In People v. Harris (1991), 222 Ill. App. 3d 1089, 583 N.E.2d 1164, we stated that section 114 — 4(e) by its terms applies only to informations or indictments and not to criminal complaints or uniform traffic citations. In addition, we stated that the provision was inapplicable unless one year had passed since the filing of the charging instrument.

We now adopt the language of Harris and find that section 114— 4(e) does not apply to criminal complaints. In addition, we note that the trial court also erred in applying that section in this case because one year had not passed since the filing of the complaint. As such, we find that the trial court lacked authority under section 114 — 4(e) to dismiss the criminal complaint filed against the defendant.

Accordingly, the judgment of the circuit court of Will County is reversed.

Reversed.

STOUDER and LYTTON, JJ., concur.