author: PRESIDING JUSTICE SCARIANO JUSTICE HARTMAN,

text:
    VIVIAN BURTON, Indiv. and as Grandmother of Evelyn Strickland, et al., Minors, et al., Plaintiffs-Appellees, v. AUTUMN GRAIN TRANSPORT, INC., Defendant (Gaylon Nagle, Defendant-Appellant).
    First District (2nd Division)
    Nos. 1—90—0006,1—90—0413 cons.
    Opinion filed December 3,1991.
    Rehearing denied December 30,1991.
    HARTMAN, J., concurring in part and dissenting in part.
    Herbert P. Carlson and Timothy J. Lowery, both of Iversen, Carlson & Associates, of Chicago, for appellant.

      Jason B. Rosenthal and Mark L. Fromm, both of Richard L. Kumlin, Ltd., of Chicago, for appellees.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiffs Vivian Burton’s and Ethel Regulus’ complaint against defendants Gaylon Nagle and Autumn Grain Transport charged that they negligently caused the plaintiffs personal injuries and property damage as the result of an automobile accident. On November 20, 1989, the circuit court denied Nagle’s motion to quash service of process over him, overruling his argument that because the plaintiffs did not file with the clerk of the circuit court an affidavit that they had complied with statutory service requirements, the court had no basis for determining whether he had been properly served, and also that service was defective because plaintiffs mailed the summons to him by certified mail, as opposed to registered mail. On December 26, 1989, the court granted plaintiffs’ motion to hold Nagle in default, overruling his contention that because service was defective, the court had no jurisdiction to enter such an order. On December 27, 1989, Nagle filed an appeal from those orders. On January 12, 1990, the circuit court entered a default judgment against Nagle for $25,300, which he claims, on appeal, was improper because service was defective and because his appeal from the prior orders was pending at the time judgment was entered, and that, therefore, the court had no jurisdiction to enter that judgment. Even if the court had jurisdiction, Nagle argues, plaintiffs failed to notify him of certain motions they filed and of a trial court order, which is itself not at issue in this appeal.

We first consider our jurisdiction to review the trial court’s orders of November 20, 1989, and December 26, 1989. An order denying a defendant’s motion to quash service of summons is neither a final judgment nor an appealable interlocutory order. (People ex rel. Department of Mental Health v. Brown (1968), 96 Ill. App. 2d 355; Thomas v. Ritholz (1941), 310 Ill. App. 166, 167-68.) Furthermore, “[a]n order of default does not dispose of the merits of the case and determine the rights of the parties. It is not, therefore, a final judgment” (Kazubowski v. Kazubowski (1971), 48 Ill. 2d 401, 402), and is not an interlocutory order appealable as of right under Supreme Court Rule 307(a) (107 Ill. 2d R. 307(a)). Accordingly, Nagle’s appeal from those orders is dismissed.

He does, however, properly appeal from the January 12, 1990, default judgment. (See Braglia v. Cephus (1986), 146 Ill. App. 3d 241, 244; Barrow v. Robinson (1961), 28 Ill. App. 2d 358, 361.) Section 10 — 301 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 95½, par. 10 — 301(b)) provides that service of process in an action against a nonresident of Illinois growing out of his operation of a vehicle on our highways, resulting in damage or loss to person or property, may be had if notice of the filing óf a copy of such service in the office of the Secretary of State and a copy of the process are “sent by registered mail by the plaintiff to the defendant, at the last known address of the defendant, and the plaintiff’s affidavit of compliance [with the statute] is appended to the summons.”

Nagle claims that a copy of plaintiff’s counsel’s affidavit of compliance was not filed with the clerk, and that, therefore, the trial court had no basis for determining whether the plaintiffs had complied with section 10 — 301. The plaintiffs respond that the record shows that the trial judge had before him a copy of the affidavit. We agree with plaintiffs; the record shows that the trial court had a copy of the affidavit in its possession and was thereby able to determine whether plaintiffs had complied with the requirements of section 10 — 301.

We do not agree, however, with the trial court’s finding that these requirements had been met. Plaintiffs concede that they sent the summons to Nagle by certified mail. They maintain, however, that their failure to comply with the requirements of the statute should be excused because paragraph 911.1.14(b) of the United States Post Office Domestic Manual (Manual) prohibits the sending of registered mail to a post office box, and that because a post office box was Nagle’s last known address, service through certified mail was proper, especially since Nagle was actually aware of the suit against him.

Plaintiffs’ argument is groundless. The postal regulation they cite states that “Mail will not be registered if: *** Addressed to post offices to which it cannot be transported with safety.” There is nothing in the record of this case which would suggest that the summons could not be transported safely by registered mail to the post office in Delavan, Minnesota, to which it was addressed. In addition, when registered mail is held by the post office, as is the case when it is sent to a post office box, the box holder receives a notice in his box and is required to sign for the mail upon claiming it from postal employees. (See paragraphs 911.41 and 911.42 of the Manual.)

Plaintiffs’ reliance on Olin Corp. v. Bowling (1981), 95 Ill. App. 3d 1113, is unwarranted. The court in Olin held that plaintiffs who were required by section 6 of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 269) to serve 3,801 defendants by registered mail could instead serve them “by certified mail, return receipt requested,” noting a difference in costs to the plaintiffs of $9,692.55, finding that certified mail with return receipt requested was “ ‘the functional equivalent of registered mail for court purposes’ [citation], especially when that mail need only be sent to ‘the last known place of residence *** of each such defendant’ [citation],” and citing the interests of “[ justice *** [and] judicial economy.” (95 Ill. App; 3d at 1115-17.) There is no claim that any extraordinary burden was placed on the plaintiffs in the case at bar or that any return receipt was ever requested by them. We therefore decline to extend the holding in Olin to read into section 10— 301 of the Code that which it does not hold.

Directly on point, however, is the case of Johnson v. Burken (7th Cir. 1991), 930 F.2d 1202. In Johnson, an absentee motorist defendant was served by certified mail, return receipt requested, rather than by registered mail as required by section 10 — 301 of the Code. Although the Secretary of State was “duly served” (930 F.2d at 1204), the defendant “did not receive his copy, having failed to leave a forwarding address.” (930 F.2d at 1204.) The court held:

“In Olin Corp. v. Bowling, 95 Ill. App. 3d 1113, *** (1981), the Illinois Appellate Court allowed the plaintiff in a class action to use certified mail to serve the 3,801 members of the defendant class in order to save the plaintiff the added cost of registered mail ***. But however elastic the statute may be to interpretation, it cannot be stretched to embrace a garden-variety case of attorney error, which is all that is involved in this case. For then we would simply have substituted ‘certified’ for ‘registered’ mail in the statute, since every rational plaintiff’s lawyer would use the cheaper and less certain form of mailing if he were permitted to do so. We are not devotees of literal interpretation; but only a court with a power of statutory revision could equate ‘certified mail’ to ‘registered mail' in a case in which (unlike Olin Corp.) there was no possible argument that the legislature had failed to anticipate a situation in which literal compliance with the statute would be unduly, perhaps senselessly, burdensome.” Johnson, 930 F.2d at 1206-07.

Bultman v. Bishop (1984), 120 Ill. App. 3d 138, cited in the dissent in this case, like Olin, is distinguishable. In Bultman, suit was brought by the purchasers of certain securities to void their sale on the ground that they had not been registered and no report of the sale had been filed as required by the Illinois Securities Law, which made such a sale voidable at the election of the purchaser upon his giving notice “by registered letter.” In holding that “the use of certified mail, return receipt requested was the functional equivalent of the ‘registered letter’ required by the statute” (120 Ill. App. 3d at 142), the court took particular note, more than once, of the fact that the defendants “received all the mailed materials as evidenced by the signed receipts for the certified letters,” citing Olin. (Emphasis added.) (Bultman, 120 Ill. App. 3d at 141.) In personam jurisdiction was not in any way involved in Bultman; moreover, there is no evidence in the case at bar of signed receipts for the certified mail. Indeed, the record is clear that plaintiffs mailed the summons to Nagle simply by certified mail, without a return receipt being requested, and the record also shows that the mail was returned to them undelivered.

Stratton v. Wenona Community Unit District No. 1 (1990), 133 Ill. 2d 413, another case relied upon by the dissent, is also inapposite to the case at bar, for there, a letter required by the School Code to be sent to the plaintiffs by “registered or certified mail” was instead delivered by hand. It bears repeating that in the case sub judice the record unequivocally reflects that plaintiffs’ notice to defendant was returned to them undelivered, and, as in Bultman, in personam jurisdiction was not the issue in Stratton.

In citing People ex rel. Loeser v. Loeser (1972), 51 Ill. 2d 567, the dissent overlooks that there the wife in a divorce proceeding brought by her husband in Indiana while she was residing in Illinois was held to be properly before the Indiana court in the divorce case inasmuch as she had been served pursuant to the Indiana “long arm” statute, which provided for service on an absentee defendant by “sending a copy of the summons and complaint by registered or certified mail or other public means by which a written acknowledgment of receipt may be requested and obtained to his residence, place of business or employment with return receipt requested and returned showing receipt of the letter.” (Loeser, 51 Ill. 2d at 571.) The Illinois Supreme Court held that since the wife had been served as required by the Indiana statute, “due process does not require precise compliance with the allegedly more stringent requirements of the Illinois statute and the rules of this court,” in the Illinois habeas corpus proceeding involving a child custody dispute between the parties. (Loeser, 51 Ill. 2d at 572.) We face no such conflict of laws problem in the instant case; accordingly, we are not required to choose the method of one jurisdiction over another regarding the proper method of serving process on absentee defendants. In Loeser there was no issue as to whether the Illinois resident had been served in the divorce action in accordance with Indiana law, the law adjudged by our State supreme court to have been the proper one to follow.

It is particularly worthy of note that our General Assembly demonstrates itself to be singularly cognizant of the difference between certified and registered mail and is quite capable of employing either or both wherever, in its best judgment, those terms are deemed necessary to be specified. We already know that registered mail is indicated in section 10 — 301 of the Code. Yet in section 24— 11 of the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 24 — 11), for example, the General Assembly requires school boards, in extending the probationary period of teachers, to serve them notice thereof by “certified mail, return receipt requested.”

Still yet, in section 10 — 22.6 of the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 10 — 22.6), school boards, in expelling pupils, are required to request parents to appear at a meeting with the board, and such request is to be “made by registered or certified mail.” (Emphasis added.) Other examples abound in our statutes; all of which goes to show that if the legislature had wanted service under section 10 — 301 of the Code to be effected by certified mail it would not specify, as it does, that process must be achieved by registered mail. We agree with the Seventh Circuit’s observation that “only a court with a power of statutory revision could equate ‘certified mail’ to ‘registered mail’ in a case in which (unlike Olin Corp.) there was no possible argument that the legislature had failed to anticipate a situation in which literal compliance with the statute would be unduly, perhaps senselessly, burdensome.” Johnson, 930 F.2d at 1207.

Because Nagle never entered a general appearance, his actual knowledge of the proceedings, which would always exist when a defendant makes a special appearance in order to move to quash service of summons, did not serve to dispense with the statutory requirements by which he was to be served with process. See Meldoc Properties v. Prezell (1987), 158 Ill. App. 3d 212, 215-16; Giralamo v. O’Connell (1986), 145 Ill. App. 3d 527, 528-29.

Consequently, we hold that the trial court erred in holding that Nagle had been properly served and that it therefore had no jurisdiction to hold him in default or to enter judgment against him. Accordingly, Nagle’s remaining claims of error need not be addressed.

The judgment of the trial court in appeal No. 1 — 90—0413 is therefore reversed.

No. 1 — 90—0006, Dismissed.

No. 1 — 90—0413, Reversed and remanded.

DiVITO, J., concurs.

JUSTICE HARTMAN,

concurring in part and dissenting in part:

I concur in the dismissal of No. 1 — 90—0006; however, I respectfully dissent in the reversal of No. 1 — 90—0413.

According to plaintiffs’ counsel’s affidavit, defendant Gaylon Nagle (Nagle) was served at 6949 Valley Creek Road in Woodbury, Minnesota, as a nonresident of Illinois, through the Illinois Secretary of State on July 29, 1987, by having forwarded to that office a copy of the complaint and summons. Following that service, plaintiffs’ counsel averred, a copy of the complaint, summons and affidavit of service was sent to Nagle at the same address by registered mail on July 30, 1987, purportedly in compliance with section 10 — 301 of the Illinois motor vehicle law (Ill. Rev. Stat. 1987, ch. 95½, par. 10 — 301). Defendant Autumn Grain Transport, Inc. (Autumn), was served by the deputy sheriff of Washington County, Minnesota, upon Beverly Rieks, its vice-president, on July 31, 1987. The Illinois Secretary of State notified plaintiffs’ attorney on July 29, 1987, that “a copy of Summons, and Complaint at Law with proper fee has been received in this Office in the above-captioned matter on the date indicated. Filing and service of same has been accepted with the provisions of Section 10 — 301 of the Illinois Vehicle Code,” as to Nagle.

On October 17, 1987, present defense counsel entered a special and limited appearance on behalf of both Autumn and Nagle. Presumably, Nagle authorized defense counsel to enter such an appearance in his behalf. A motion was filed by plaintiffs’ counsel and served upon present defense counsel notifying them of a motion to be presented on April 5, 1988, moving to strike the special and limited appearances of “Defendants AUTUMN GRAIN TRANSPORT, INC. and GAYLON NAGLE since no motion has been brought stating a reason why Defendant should be allowed to appear by a special and limited appearance.”

A motion to quash summons on behalf of Nagle, appearing specially, was filed on April 13, 1988, through present defense counsel, objecting to the jurisdiction of the circuit court and moving to quash the purported service of summons of July 29, 1987, for Nagle through the office of the Secretary of State. Nagle claimed that plaintiffs’ affidavit of compliance was notarized more than 10 days after service upon the Secretary of State and that Nagle never received a true affidavit of compliance when he was served. On April 13, 1988, the circuit court granted the motion to quash service of process on July 29, 1987.

Meanwhile, plaintiffs’ counsel again served Nagle through the Illinois Secretary of State on February 2, 1988, with an alias summons, complaint and affidavit. Thereafter, upon notice and motion of default for failure to file an answer and general appearance in this matter, after having been served on July 31, 1987, and February 2, 1988, an additional and special appearance was filed on behalf of Nagle by present defense counsel.

On May 31, 1988, present defense counsel moved to vacate all technical defaults against Autumn and asked that its special and limited appearance filed September 17, 1987, be converted to a general appearance and it be permitted to file an answer or otherwise plead to plaintiffs’ complaint. In its answer filed May 31, 1988, Autumn admitted that Nagle was a permissive driver, agent and/or servant for said defendant, but further answering, denied other allegations.

Also on May 31, 1988, present defense counsel specially appeared on behalf of Nagle and moved to quash the February 2, 1988, service of process made through the Secretary of State pursuant to section 10 — 301. Among the grounds alleged to support this motion to quash was that service of process at 6949 Valley Creek Road, Woodbury, Minnesota, was the same address that plaintiffs purportedly had used to obtain service of process over Nagle’s principal, Autumn, and complained that “no process documents have ever been sent to the last known address of Gaylon Nagle. Rather, they were merely sent to the last known address of Autumn Grain Transport, Inc.” That motion to quash resulted in Nagle being given additional time to file an amended motion to quash. Plaintiffs filed a response and asked that the motion be continued together with the motion for defaults. On June 1, 1988, plaintiffs’ counsel served present defense counsel with interrogatories to be answered by Autumn and Nagle. Among the questions asked was that each defendant’s answer set forth the full names and addresses of the individuals signing the answers.

On June 6, 1988, present defense counsel served plaintiffs’ counsel with an amended motion to quash as to Nagle, again challenging the service of process, this time because the last known address of Nagle was the same address as Autumn. In support of Nagle’s motion to quash, an affidavit was filed by the president of Autumn in which he averred that Nagle did not reside at 6949 Valley Creek Road, Woodbury, Minnesota, which address was “an office inside a bank building, and there is no facility at that address for loading, unloading, or parking tractor-trailers.” The matter was continued to July 22,1988, with no answer filed to interrogatories.

On July 25, 1988, the circuit court ordered Autumn to comply with all outstanding written discovery within 28 days. Nagle’s amended motion to quash present service of process was continued to September 14, 1988. Plaintiffs filed a response to the amended motion to quash thereafter, noting, among other things, that Nagle himself had never claimed that he did not reside at 6949 Valley Creek Road, Woodbury, Minnesota.

Plaintiffs filed a motion noting that although Autumn had been in the case for over a year, plaintiffs have been prejudiced by Autumn’s refusal to answer outstanding written discovery, including that which asked for the “current address as well as ascertaining whether or not the Defendant, Nagle was an agent and/or employee of Defendant AUTUMN GRAIN TRANSPORT, INC.” An order was entered on September 14, 1988, continuing Nagle’s amended motion to quash to November 15, 1988, and on September 23, 1988, Autumn was given an additional 14 days to respond to the outstanding written discovery.

On October 4, 1988, Autumn filed an objection to written discovery claiming that Supreme Court Rule 201(b) (134 Ill. 2d R. 201(b)) prohibited discovery before Nagle had appeared. No mention was made of Supreme Court Rule 201(1), which permitted limited discovery where, as, here, a special appearance was filed. (134 Ill. 2d R. 201(1).) Autumn’s objection to plaintiffs’ interrogatories was denied on August 7, 1988, and Autumn was given 28 days in which to answer. The answers were filed on November 7, 1988. Among the answers given were that “Autumn Grain Transport, Inc. did not have a residential address for Nagle on July 18, 1985 [the date of the accident] nor does it currently. Nagle has received mail at Box 172 Delavan, Minnesota 56023 although Autumn does not know if he still receives mail there.” Autumn Grain Transport also answered that “Gaylon Nagle was employed by Autumn Grain Transport, Inc. as a truck driver on July 18, 1985 and was its agent while in the furtherance of the company’s business. His term of employment began in approximately May, 1984, and ended approximately September, 1985.” On November 15, 1988, the circuit court order quashed the purported service of process on Nagle on or about February 2, 1988. No reasons were given or findings made.

Another attempted service of process was made on or about November 20, 1988, through the Secretary of State pursuant to section 10 — 301 of the motor vehicle code, by plaintiffs’ counsel. A new special and limited appearance was filed on behalf of Nagle by present defense counsel on December 21, 1988. This was followed by Nagle’s motion to quash, by and through present defense counsel. Among the grounds contained in this motion were that the court file did not contain an affidavit of compliance or other proof of service. Autumn thereafter moved on September 7, 1989, to dismiss the complaint against Nagle under Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)). In this motion, Autumn claimed that plaintiffs failed to exercise due diligence and that prior attempts at serving process did not relieve plaintiffs of their burden.

The motion to dismiss addressed itself to the attempted services of process on July 29, 1987, February 2, 1988, and November 20, 1988. On October 3, 1989, plaintiffs responded that the computer in the Cook County clerk’s office, law division, revealed service was effectuated as of November 11, 1988, on Nagle, that the Secretary of State’s office received all necessary papers, including an affidavit of compliance, on November 15, 1988, and claimed that plaintiffs had met all requirements of section 10 — 301. An affidavit of service by plaintiffs upon the clerk of the circuit court and Secretary of State averred that a copy of process so served was sent to “GAYLON NAGLE Box 172 Delavan, Minnesota 56023, that this address being the last known address of the said defendant, that this Affidavit and Notice, containing the above and foregoing, were sent by Registered Mail, having been registered within the branch Postal Office Station located at 211 S. Clark Street, Chicago, Illinois.” The affidavit was sworn to on November 22,1988.

Thereafter, Nagle, by and through present defense counsel, claimed that the mailing receipt filed by plaintiffs showed that the mailing was done by certified mail rather than by registered mail, as required by section 10 — 301. Plaintiffs’ counsel conceded that he sent the summons to Nagle by certified mail, but asked that strict compliance with the requirements of section 10 — 301 be excused because paragraph 911.1.14(b) of the United States Post Office Domestic Manual (Manual) prohibits the sending of registered mail to a post office box, and that because a post office box was Nagle’s last known address, service through certified mail was proper, especially when Nagle was actually aware of the suit against him.

Plaintiffs rely upon Olin Corp v. Dowling (1981), 95 Ill. App. 3d 1113, 420 N.E.2d 1047, appeal denied (1981), 85 Ill. 2d 567. The court in Olin held that plaintiffs, who were required by section 6 of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 269) to serve 3,801 defendants by registered mail, could instead serve them “by certified mail, return receipt requested,” noting a difference in costs to the plaintiffs of $9,692.55, finding that certified mail with return receipt requested was “ ‘the functional equivalent of registered mail for court purposes’ [citation], especially when that mail need only be sent to ‘the last known place of residence *** of each such defendant’ [citation],” and citing the interest of “[ Justice *** [and] judicial economy.” (95 Ill. App. 3d at 1115-17.) In Bultman v. Bishop (1984), 120 Ill. App. 3d 138, 143, 457 N.E.2d 994, the appellate court held that the form of mailing notice is not controlling where certified mail serves the same purpose as registered mail. See Johnson v. Burken (N.D. Ill. 1989), 727 F. Supp. 398.

On at least two occasions, our supreme court has found the notice provisions satisfied although not in strict compliance with statutory restrictions. In People ex rel. Loeser v. Loeser (1972), 51 Ill. 2d 567, 283 N.E.2d 884, sending a copy of a summons other than by the prescribed “restricted mail delivery” was excused, the court stating (51 Ill. 2d at 572):

“The requisites of due process are satisfied if the manner of effecting service of summons gives reasonable assurance that notice will actually be given and the person against whom the action is brought is given reasonable time to appear and defend on the merits. (McGee v. International Life Insurance Co., 355 U.S. 220, 2 L. Ed. 2d 223, 78 S. Ct. 199; International Shoe Co. v. Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154.)”

More recently, the Loeser decision was cited with approval in Stratton v. Wenona Community Unit District No. 1 (1990), 133 Ill. 2d 413, 551 N.E.2d 640, the supreme court observing (133 Ill. 2d at 432-33):

“A fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information. (Mullane v. Cen tral Hanover Bank & Trust Co. (1950), 339 U.S. 306, 314-15, 94 L. Ed. 865, 873, 70 S. Ct. 652, 657; Rosewell v. Chicago Title & Trust Co. (1984), 99 Ill. 2d 407, 411.) Due process does not require useless formality in the giving of notice (In re J. W. (1981), 87 Ill. 2d 56, 62), requiring only reasonable assurance that notice will actually be given and the person whose rights are to be affected will be given reasonable time to appear and defend (People ex rel. Loeser v. Loeser (1972), 51 Ill. 2d 567, 572). There must be an opportunity, at a meaningful time and in a meaningful manner, for a hearing appropriate to the nature of the case. Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 437, 71 L. Ed. 2d 265, 279, 102 S. Ct. 1148, 1158-59.”

Plaintiffs’ efforts to effectuate good-faith compliance with section 10 — 301, particularly in light of lack of cooperation by the defense, and only a post office box number to serve, satisfied any requirement of reasonable and meaningful service of process under the circumstances of this case. I would affirm the circuit court on this issue.


source: Caselaw Access Project

author: JUSTICE GREIMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY SPEIGHT et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 1—88—3439,1—88—3510 cons.
    Opinion filed December 4,1991.

      Randolph N. Stone, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant Melvin Whitten.
    Michael J. Pelletier and Martin Carlson, both of State Appellate Defender’s Office, and Chapman & Cutler, both of Chicago (Michael T. Benz, of counsel), for appellant Anthony Speight.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Gregory Vaci, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GREIMAN

delivered the opinion of the court:

Defendants appeal a decision in which both were convicted of armed robbery and attempted armed robbery of a couple on January 14, 1988. Anthony Speight (Speight) was sentenced to 15 years in prison, and Melvin Whitten (Whitten) was sentenced to six years in prison. Their cases have been consolidated on appeal.

Speight contends that: (1) a police officer’s testimony as to narcotics paraphernalia found on the defendant’s person constituted inadmissible evidence of other crimes and denied the defendant a fair trial; (2) the State’s definition of “reasonable doubt” in its closing argument as “substantial” doubt improperly shifted the burden of proof to the defendant; (3) the State’s misstatement of the law in its closing argument regarding the use at trial of tape-recorded statements was prejudicial and improperly implied that defendant’s counsel was attempting to confuse the jury; and (4) the cumulative impact of the prosecutorial misconduct and the improper evidence of other crimes requires reversal of Speight’s conviction.

Whitten argues that (1) the trial court erred when it sua sponte took judicial notice of facts which partially discredited a critical defense witness, and (2) since Speight was not shown to be armed when he robbed complainant Grady Guilty, Whitten was improperly convicted of armed robbery under the theory of accountability.

We reverse and remand both convictions for new trial, Speight’s based upon the improper introduction of evidence of other crimes, and Whitten’s based upon the trial court’s improper sua sponte taking of judicial notice of facts after evidence was closed.

On Thursday, January 14, 1988, the complainants, Grady Guilty and his cousin, Patricia Gamble, were walking through an alley near the comer of Jackson and Sacramento Streets when two men stepped in front of them and one of the men said, “Hey, get back and give it up.” The darker-skinned man, allegedly Speight, then pushed Mr. Guilty farther into the alley and told him he wanted money. At the same time, the lighter-skinned man, allegedly Whitten, grabbed Ms. Gamble by the collar, held a knife to her, and frisked her. After Mr. Guilty gave the dark-skinned man $37, complainants were told to walk down the alley and not look back. Mr. Guilty, however, followed the men to a gas station, where he called police to report the robbery and describe the men. A few minutes later, police arrived and drove Mr. Guilty to where the two suspects were being detained. Mr. Guilty positively identified the two as the same ones who had robbed him, stating that the light-skinned man had the knife and the dark-skinned man took his money. At trial, Mr. Guilty identified the light-skinned man as Melvin Whitten and the dark-skinned man as Anthony Speight.

Speight first contends that Officer Touss’ testimony referring to narcotics paraphernalia found on him at the time of arrest constituted inadmissible evidence of other crimes and denied him a fair trial. We agree.

During direct examination, this exchange ensued between Officer Touss and the prosecutor:

“Q. [The Prosecutor]: In the course of this search what, if anything, did you discover, Officer?
A. $27.
* * *
Q. Did you find anything else in the course of your search of this individual?
A. Yes.
Q. What was that?
A. There was cigarettes, some keys, there was some empty pony pack.
Q. What is a pony pack, Officer?
A. It is a white piece of paper approximately four by four commonly used to—
[Defense Counsel]: Objection.
THE COURT: Sustained. The jury will disregard testimony concerning anything that has been related, has been called a pony pack.
[The Prosecutor]: What did you do with those other items?
A. Turned them over to the gentleman.”

A “pony pack” refers to white paper used to hold cocaine. Speight contends that when the jury heard Officer Touss refer to an empty pony pack found on his person at the time of the arrest, he was denied a fair trial. Speight argues that the testimony was likely to lead the jury to believe he used drugs, certainly injecting irrelevant prejudice against him and increasing the likelihood of finding him guilty.

Evidence of other crimes is objectionable “not because it has no appreciable probative value, but because it has too much.” (People v. Lehman (1955), 5 Ill. 2d 337, 125 N.E.2d 506.) Evidence of a crime for which a defendant is not on trial is inadmissible if relevant only to establish the defendant’s propensity to commit crimes. (People v. Lawler (1991), 142 Ill. 2d 548, 563, 568 N.E.2d 895; People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) The Illinois Supreme Court has stated that an erroneous admission of evidence of other crimes carries a high risk of prejudice and ordinarily calls for reversal. (People v. Richardson (1988), 123 Ill. 2d 322, 343, 528 N.E.2d 612; People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) The limitation on that notion is that any error, defect, irregularity or varianee must affect substantial rights or it will be disregarded. 107 Ill. 2d R. 615(a); see Richardson, 123 Ill. 2d at 343.

In the present case, we find that the testimony that defendant carried drug-related paraphernalia implies that defendant used drugs and may lead the jury to believe Speight has a propensity to commit crimes, thus wrongly persuading the jury that he is guilty of armed robbery. As the Lindgren court stated, “Such evidence over-persuades the jury, which might convict the defendant only because it feels he or she is a bad person deserving punishment.” Lindgren, 79 Ill. 2d at 137.

We find the testimony of Officer Touss concerning the pony pack to be prejudicial to defendant’s right to a fair trial. While the trial court sustained an objection to a detailed discussion of the pony pack, we find its admonishment in this instance does not necessarily eradicate the effect of the introduction of improper evidence upon the minds of the jury. People v. Graham (1989), 179 Ill. App. 3d 496, 508-09, 534 N.E.2d 1382.

Graham is similar in that even though the defendant there chose not to testify at trial to avoid impeachment by evidence of prior crimes or misconduct, the prosecutor nonetheless elicited testimony from a police officer regarding defendant’s prior criminal activity. The Graham court found that the trial could have been conducted without improper reference to prior crimes or arrests. The court stated that although the evidence was sufficient to convict beyond a reasonable doubt, defendant was entitled to have his guilt or innocence determined by the jury without improper and prejudicial matters being erroneously interjected. (Graham, 179 Ill. App. 3d at 509; People v. Popely (1976), 36 Ill. App. 3d 828, 836, 345 N.E.2d 125.) Similarly, in the present case, we can find no justifiable reason for the prosecutor to have specifically elicited testimony regarding evidence of criminal activity, since it is irrelevant to the charges against Speight.

As in Graham, the other evidence against defendant Speight is strong. However, the consequences of implicating to the jury that defendant is a drug user may cause substantial prejudice toward defendant that cannot easily be measured or cured by admonition. Therefore, we cannot conclude that the properly admitted evidence, including the disputed identification evidence, is so overwhelming that no fair-minded jury could have voted for an acquittal.

Because we remand for new trial based upon this issue, we need not address Speight’s other contentions.

Defendant Whitten first contends that it is not within the trial judge’s power to take judicial notice of facts sua sponte and then use the facts to discredit a witness. We disagree. A trial judge may, on rare occasions, take sua sponte judicial notice of facts during a trial, however, not after the close of evidence, at the report of his findings. If taken during the course of the trial, such evidence may be argued, explained or rebutted. Upon this basis, we reverse Whitten’s conviction and remand for new trial.

The witness for defendant was Rev. James Clasberry, who is a church minister, Masonic lodge president and manager of the grocery where defendant worked at the time of the incident. The Reverend stated that he remembered Whitten leaving work at 5:30 p.m. on January 14, 1988, the day of the incident, because the Reverend loaned Whitten money that day. When the Reverend’s recollection was challenged upon cross-examination, he stated that he remembered that day because January 14 was a Friday and defendant was scheduled to be inducted as a Mason on Saturday, January 15.

In making his findings, the trial judge stated:

“I have had an opportunity to look at a calendar and I take judicial notice of the fact the 15th was a Friday and the 14th was a Thursday, not a Saturday.
If Reverend Clasberry was initially right and the rites of initiation into the Masonic lodge were to take place on Saturday, 14th was a Thursday not the Friday next.
I have a reason to think maybe Reverend Clasberry’s remembrance of these dates is legitimately and honestly in error.”

No party requested that the judge take judicial notice of the dates.

To take judicial notice of a fact is merely another way of saying that the usual forms of evidence will be dispensed with if the fact is one which is commonly known or readily verifiable from sources of indisputable accuracy. Murdy v. Edgar (1984), 103 Ill. 2d 384, 394, 469 N.E.2d 1085; In re Marriage of Holder (1985), 137 Ill. App. 3d 596, 602, 484 N.E.2d 485.

We do not agree with defendant Whitten that a trial judge may never take sua sponte judicial notice of facts. We find that a trial judge may take sua sponte judicial notice on rare occasions, but must take care that such notice does not amount to advocacy for either party. While Illinois law is silent on the subject, this court in at least two cases would apparently allow a trial judge to use his discretion. People v. Varnado (1978), 66 Ill. App. 3d 413, 419, 384 N.E.2d 37; People v. Clifton (1973), 11 Ill. App. 3d 112, 114, 296 N.E.2d 48.

In Clifton, the court stated that a party who desires judicial notice be taken of a fact should bring the matter to the attention of the court, on the record, because, “If he does not, the court of review will not ordinarily judicially notice such fact.” (Emphasis added.) (Clifton, 11 Ill. App. 3d at 114.) In Varnado, the court stated that a party should request judicial notice because “[a] court is not required to take judicial notice without a proper request to do so.” (Emphasis added.) (Varnado, 66 Ill. App. 3d at 419.) While suggesting that a court not ordinarily take judicial notice sua sponte, the language in both of these cases implies that such judicial notice may in some cases be taken.

Courts in other jurisdictions have long recognized a judge’s discretion to take sua sponte judicial notice. See, e.g., Hammonds v. State (1991),_S.W.2d_(appellate court may take sua sponte notice of “almanac-type” facts such as upon which day of the week a particular date falls); Housing Authority of City of Norwalk v. Brown (1990), 23 Conn. App. 366, 579 A.2d 1110 (court erroneously took sua sponte judicial notice of a grievance procedure that is not published or disseminated, and denied the affected party a chance to review or refute the court’s reliance upon the noticed material); Fields v. A & B Electronics (Okla. 1990), 788 P.2d 940 (State supreme court took sua sponte judicial notice of the specific date which tolled an appeal period); Ross v. Indiana (Ind. App. 1977), 365 N.E.2d 1231 (trial court properly took sua sponte judicial notice of a discretionary order issued by the State Department of Natural Resources); Wisconsin v. Barnes (1971), 52 Wis. 2d 82, 187 N.W.2d 845 (trial court not allowed to take sua sponte judicial notice of research initiated by it unless the parties are given formal notice before the verdict is rendered, including the names of the sources and the facts upon which the court intends to rely). See also IX J. Wigmore, Evidence §2568 (Chadbourn rev. ed. 1981).

While we hold that a trial judge in rare instances may take sua sponte judicial notice of facts, the judge must make clear during the course of the trial, and not after the evidence is closed, what facts and sources are included in the sua sponte notice. The concept of fair play requires that all parties to an action be given a fair opportunity to rebut any evidence which might be damaging to their position. (Drovers National Bank v. Great Southwest Fire Insurance Co. (1977), 55 Ill. App. 3d 953, 957, 371 N.E.2d 855.) A party has the same right to rebut evidence admitted by sua sponte judicial notice as it does to rebut evidence introduced by the opposing party. Brown, 23 Conn. App. at 370, 579 A.2d at 1112; Barnes, 52 Wis. 2d at 88, 187 N.W.2d at 848.

While the record shows that defendant failed to raise this issue at trial or in post-trial motions, we find it amounts to plain error since we cannot conclude that the evidence against Whitten is so overwhelming, including the disputed identification evidence, that no fair-minded jury could have voted for an acquittal. (People v. Enoch (1988), 122 Ill. 2d 176, 198-99, 522 N.E.2d 1124.) We reverse and remand on this ground.

We also address Whitten’s second contention, that he could not be found guilty beyond a reasonable doubt of armed robbery since codefendant Speight possessed no weapon when he robbed Mr. Guilty of $37. Alternatively, defendant Whitten contends that there was no concerted effort made by the two defendants against the two victims; rather, there were two separate incidents, one robbery committed against Mr. Guilty and one attempted armed robbery committed against Ms. Gamble. Therefore, Whitten argues, because the incidents were separate and not part of a concerted effort to rob the couple, the two cannot be convicted of armed robbery on the accountability theory since the suspect alleged to be Speight had no weapon when he robbed Mr. Guilty.

We first dispose of Whitten’s alternative argument. There is no evidence whatsoever in the record to indicate that the two suspects were not acting in concert. The two victims encountered the suspects standing together, the two victims and the two suspects stood together as a group in the alley, the two victims were robbed standing next to each other, the two suspects left together, and the two suspects were found together. Simply because one suspect carried the money or the weapon, or did all of the talking, does not make it dispositive that the two were not acting in unison.

Whitten’s conviction for armed robbery is further supported by the idea that where there is a concerted effort by two armed defendants to rob two victims, both defendants may be charged with two crimes, one for each victim. Courts have found both defendants guilty of two crimes where the defendants acted in concert, even if only one defendant took the money from the victim. People v. Butler (1976), 64 Ill. 2d 485, 489, 356 N.E.2d 330; People v. Ortiz (1987), 156 Ill. App. 3d 170, 174, 509 N.E.2d 633; In re Fleming (1976), 37 Ill. App. 3d 785, 788, 347 N.E.2d 193; People v. Gant (1974), 18 Ill. App. 3d 61, 65, 309 N.E.2d 265.

The parties discuss People v. English (1975), 32 Ill. App. 3d 691, 336 N.E.2d 199, which found both defendants guilty of armed robbery. Whitten contends that case is inapplicable since both defendants in that case had weapons. However, in the Butler case, both defendants also had weapons, and the supreme court found both of them guilty of two armed robberies because they acted in concert. Each defendant fulfilled elements of the crime even though only one of them took the money from the victim, so both defendants were convicted, having acted in concert. We simply extend that logic to apply to this case; here, we merely have a different element of the crime, the holding of a weapon, in the course of a concerted act against two victims. (Butler, 64 Ill. 2d at 489.) Under Butler, we would affirm the convictions of both defendants for armed robbery.

We hold that both convictions are reversed and remanded for new trial.

Judgments reversed and remanded.

CERDA, P.J., and TULLY, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN ROGERS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—2677
    Opinion filed December 4, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Stephanie L. Ellbogen, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Randall Roberts, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GREIMAN

delivered the opinion of the court:

Following a jury trial, defendant, John Rogers, was convicted of heinous battery (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4.1) and sentenced to 25 years’ imprisonment. On appeal, he contends that grain alcohol is not a caustic substance as required for conviction under the heinous battery statute.

During the early morning hours of April 17, 1988, complainant Veronique Gill was in a room at the Camelot Hotel in Chicago with defendant and two others. Earlier that night defendant had cooked cocaine, water and baking soda in a test tube over a flame until the ingredients combined. The “torch” he had used to cook the cocaine was made from a hanger covered with cotton and dipped in grain alcohol. After the cocaine hardened, they all smoked the substance through a pipe.

About 3 a.m., defendant became angry and asserted that someone had stolen his cocaine. Complainant suggested that he frisk her to prove that she had not taken it. Defendant said “if my cocaine don’t come up somebody’s going to be messing some peoples.” When no one responded, defendant approached complainant, who was sitting cross-legged on the bed. He immediately poured grain alcohol on top of her head which ran down her body and said to her, “Bitch, you must think you are cute.”

Defendant then threw a lit match at her causing her head, face, chest and pants to ignite. As a result of setting her aflame, her clothing completely burned. Blindly, she walked to a wash bowl where she flung her burning hair from her face and soaked her head under the water to extinguish the flames. Steady burning continued on her face and on top of her head for more than 10 minutes until she was able to put out the fire completely. The clothes produced at trial showed the areas where the bums were concentrated.

She was hospitalized and treated for bums for four months. During that time, she had skin grafts on her forehead, chest, breast and thighs. Dr. Hanumadass, a bum expert and her attending surgeon, testified that her bums were classified as major bums because of the important anatomical areas involved — face and both hands. He explained that she had approximately 23% to 24% body surface bums extending from forehead up to the mid-thighs, face, ears, nose, neck, upper chest, abdomen, upper thighs and both hands. Of this 23%, 8% were considered as deep-to full-thickness second-degree bums. The deepest burns were on her upper thighs and under the breasts. Complainant testified that her face, breasts, entire stomach and thighs are permanently scarred.

Defendant’s version of the events differed in that he testified that when complainant lit a pipe with grain alcohol, the pipe exploded and she caught fire. He claimed that he never actually saw the pipe explode but heard a noise and then observed her on fire. He explained that previously the pipe had been cleaned with grain alcohol.

Dr. Hanumadass stated that the bums he treated complainant for were consistent with the history given by complainant and not consistent with any sort of explosion. Hanumadass explained that her bums were essentially distributed on the front of her body and her condition consisted of localized and flame bums with different depths whereas explosion bums are diffused.

The heinous battery statute (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4.1) states:

“(a) A person who, in committing a battery, knowingly causes severe and permanent disability or disfigurement by means of a caustic substance commits heinous battery.”

On appeal, defendant contends that grain alcohol does not constitute a caustic substance within the meaning of the statute. Defense counsel argued this in defendant’s motion for a directed verdict. The trial court relied on People v. Hicks (1984), 101 Ill. 2d 366, 462 N.E.2d 473, and denied defendant’s motion.

Where the terms of a statute are not defined by the legislature, courts will assume that they were intended to have their ordinary and popularly understood meanings unless doing so would defeat the perceived legislative intent. (People v. Fink (1982), 91 Ill. 2d 237, 240, 437 N.E.2d 623.) Webster’s Third New International Dictionary defines “caustic” as follows: “[Cjapable of destroying the texture of anything or eating away its substance by chemical action: corrosive: as a: capable of destroying animal or other organic tissue ***[;] b: strongly alkaline.” Webster’s Third New International Dictionary 356 (1971); see also Funk & Wagnall’s New Comprehensive International Dictionary 221 (Encyclopedic Ed. 1977); Second College Edition of the American Heritage Dictionary 249 (1985).

People v. Hicks (1984), 101 Ill. 2d 366, 462 N.E.2d 473, is the only Illinois case that attempts to define “caustic” in the context of heinous battery. In Hicks, complainant was a nine-year-old girl severely burned when defendant poured boiling water over her, water which she had heated to cook hot dogs.

The court found boiling water qualified as a caustic substance under the statute, and rejected defendant’s argument that the statute intended to distinguish between bums caused by thermal action (such as with boiling water) and those caused by chemical action (such as with acids). The court stated that “chemical action” as used in the definition of “caustic” “is defined as the ‘molecular change produced in any substance through the action of heat, light, electricity, or another chemical.’ ” (Emphasis in original.) The court found that bums caused by heat, as well as bums caused by other means, are the result of chemical action. Hicks, 101 Ill. 2d at 371-72.

Applying the reasoning of Hicks, we believe the trial court correctly found that grain alcohol, when ignited by defendant, became a caustic substance which indisputably caused severe and permanent injuries to complainant.

In Hicks, the court recognized that while water by itself is not a caustic substance, when it is heated to boiling, it becomes a caustic substance. Clearly if defendant had ignited the alcohol prior to pouring it on complainant, that flaming alcohol would have been considered a caustic substance. While the poured alcohol by itself may not have been caustic, defendant’s battery became heinous when the chemical action of ignition was performed by defendant for the sole purpose of burning complainant.

This case is stronger than Hicks since there the defendant had not even heated the water himself. Here, defendant performed both the preparatory work, the pouring of the alcohol, and the chemical action of igniting it.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

CERDA, P.J., and TULLY, J., concur.


author: JUSTICE RIZZI

text:
    AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as Trustee, Plaintiff-Appellant, v. FRANK TUFANO et al., Defendants-Appellees (Michael Fryzel, Director of the Financial Institutions of the State of Illinois, Defendant).
    First District (3rd Division)
    No. 1—90—0193
    Opinion filed December 4,1991.
    Rehearing denied January 13, 1992.
    Jospeh I. Adler and Charles E. Adler, both of Chicago, for appellant.
    Anthony J. Fornelli, of Chicago, for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff American National Bank and Trust Company of Chicago, as trustee under trust No. 7966, brought this action against defendants Frank Tufano and Angeline Tufano for the alleged violation of a restrictive covenant contained in the parties’ lease for a currency exchange located in the lobby of 32 West Washington Street, Chicago, Illinois. Plaintiff sought a declaratory judgment, an injunction and monetary damages. The declaratory judgment count was dismissed by the trial court. After a bench trial, the trial court found and entered judgments in favor of defendants as to both the injunction and monetary damage counts. We affirm.

In January 1973, defendants accepted the assignment of a prior lessee’s interest in a lease due to expire on April 30, 1977, for the currency exchange. The monthly rental payment due to plaintiff during the term of this lease was $745.77. In March 1977, plaintiff executed a five-year lease with defendants commencing May 1, 1977, through April 30, 1982, containing a monthly rental payment ranging from $845.77 to $920.77 during the term of the lease. Another five-year lease was executed commencing May 1, 1982, through April 30, 1987, containing a monthly rental payment ranging from $1,700 to $2,107.76 during the term of the lease. This lease, like the previous leases, contained the following restrictive covenant:

“18. During the term of this lease, and for a period of one (1) year after its termination, whether by lapse of time or otherwise, [defendants] agree that they will not, either directly or indirectly, operate or engage in the currency exchange business within a radius of two blocks from the northeast corner of Washington and Dearborn Streets, Chicago, Hlinois; provided, however, that if Lessor shall fail to offer [defendants] a new lease upon the expiration of this Lease at the same rental, then and in that event that portion of this paragraph which prohibits [defendants] from operating or engaging in the currency exchange business for a period of one year shall be of no force and effect whatsoever.”

On February 26, 1987, plaintiff filed a complaint in the circuit court of Cook County seeking a declaratory judgment to determine the rights of plaintiff to examine defendants’ financial records. On April 17, 1987, following intermittent correspondence between the parties regarding renewal of the lease, plaintiff activated the restrictive covenant by tendering a renewal lease to defendants containing the same monthly rental payment as the previous lease. On April 30, 1987, the lease lapsed and defendants opened a currency exchange business less than two blocks from 32 West Washington Street.

Plaintiff subsequently amended its complaint to include additional counts seeking injunctive relief to enjoin defendants from violating the restrictive covenant and monetary damages. Later, the trial court dismissed the declaratory judgment count. A bench trial was had, and the trial court found in favor of defendants and entered judgments in their favor as to both the injunction and monetary damage counts. This appeal followed.

It is well established that covenants restricting the use of real estate, restraining trade or otherwise impeding the stream of commerce are disfavored in the law and will be construed in favor of free alienation in the event of an inequitable or unjust result. (See Tyler Enterprises of Elwood, Inc. v. Shafer (1991), 214 Ill. App. 3d 145, 149, 573 N.E.2d 863, 865-66; Callahan v. Balfour (1989), 179 Ill. App. 3d 372, 378, 534 N.E.2d 565, 569; Aqua-Aerobic Systems, Inc. v. Ravitts (1988), 166 Ill. App. 3d 168, 172, 520 N.E.2d 67, 70.) Courts carefully scrutinize the validity of restrictive covenants, and their enforceability is conditioned upon the reasonableness of the restraint imposed. (Retina Services, Ltd. v. Garoon (1989), 182 Ill. App. 3d 851, 855, 538 N.E.2d 651, 652.) Moreover, the party seeking enforcement of a restrictive covenant must allege and prove some legitimate business or proprietary interest requiring protection for which enforcement is sought. See Smith v. Chemical Personnel Search, Inc. (1991), 215 Ill. App. 3d 1078, 1084, 576 N.E.2d 340, 345; Label Printers v. Pflug (1991), 206 Ill. App. 3d 483, 491, 564 N.E.2d 1382,1387.

In the present case, plaintiff does not allege and the record does not support a finding that defendants were or are in direct or indirect competition with plaintiff by engaging in the currency exchange business within two blocks of 32 West Washington Street. Plaintiff does not allege and there is no evidence that plaintiff is in the currency exchange business. Nor is there any allegation or proof that the leased space at issue is being used for a currency exchange or that it cannot be leased to another tenant because the defendants are operating a currency exchange within two blocks of 32 West Washington Street. Thus, plaintiff has not advanced and we cannot postulate any legitimate business or proprietary interest that requires protection through enforcement of the restrictive covenant, or alternatively, how plaintiff would be harmed by our failure to enforce the covenant. Parenthetically, we note that the building located at 32 West Washington Street was razed in 1989, and the land remains vacant.

We therefore hold that the restrictive covenant in this case is unenforceable because there is no allegation or evidence that a legitimate business or proprietary interest exists which requires protection through enforcement of the covenant. Under the circumstances, we do not address plaintiff’s other arguments.

Accordingly, the judgments of the circuit court are affirmed.

Affirmed.

CERDA, P.J., and TULLY, J., concur.


author: PRESIDING JUSTICE CERDA

text:
    JOHN MAROZAS, Plaintiff-Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF BURBANK et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—90—2050
    Opinion filed December 4,1991.

      Frank J. Hucek and Ann M. Hucek, both of Berwyn, for appellant.

      Michael G. Cainkar, of Louis F. Cainkar, Ltd., of Chicago, for appellees.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

At issue in this appeal is the trial court’s dismissal of counts I and II of plaintiff’s complaint, and the denying of plaintiff’s three motions to amend his complaint. On appeal, plaintiff, John Marozas, asserts that (1) the trial court erred in dismissing count I of his complaint, which did not name the chief of police as a party defendant; (2) the trial court erred in dismissing count II of his complaint, which sought declaratory relief to void the board’s proceedings, raised constitutional issues, and sought other relief; (3) the trial court erred in denying his three motions seeking to add a count for attorney fees under the city’s indemnity ordinance, to amend by naming the chief of police as a party defendant, and to consolidate with case No. 84 L 50289; (4) he was deprived of his property rights without procedural due process; and (5) he is entitled to back pay, lost benefits, and damages.

In October 1982, the City of Burbank hired plaintiff as a police officer. In December 1983, the Burbank chief of police recommended to the city police commission that plaintiff be terminated. On December 28, 1983, plaintiff was given a letter signed by the members of the police commission, terminating his employment, effective immediately. Prior to that notice, plaintiff received no other notice; there were no charges filed against him; no investigation was conducted; and no hearing was held.

On February 1, 1984, plaintiff filed a complaint for administrative review and other relief. In case No. 84 L 50289, plaintiff challenged his summary discharge without notice and hearing. The complaint asked for administrative review and a declaratory judgment voiding the discharge and reinstating plaintiff with back pay. The central issue was whether plaintiff had completed his probationary period so that he was not subject to summary discharge.

The trial court found that the probationary period was 90 days, that plaintiff had completed his probationary period, and that plaintiff was not subject to summary discharge. On March 15, 1985, the trial court ordered that the board conduct a hearing on the discharge within 30 days. If such a hearing was not conducted within 30 days or the decision was not appealed, the court directed, plaintiff was to be reinstated. The issue of back pay was reserved by the trial court. Remanding the matter to the board for a full hearing, the trial court’s opinion stated that plaintiff was not entitled to automatic reinstatement.

Defendants appealed the trial court decision. On April 29, 1986, the appellate court affirmed, holding that the probationary period was 90 days, and remanding the case back to the board. Even though the trial court did not order reinstatement or back pay, the appellate court stated, those issues were not reviewed since they were not raised in the appeal.

On June 8, 1986, plaintiff’s attorney received a copy of a notice from the board’s attorney advising of a June 17, 1986, hearing regarding charges filed against plaintiff. Plaintiff filed various motions for reinstatement and dismissal of the charges, but all were denied. A hearing was set for August 26, 1986, and began on September 9, 1986. At that time, plaintiff renewed his motions to dismiss and for reinstatement. He also filed written motions to object to the board’s jurisdiction and authority, and to dismiss the charges on grounds of laches. All the motions were denied by the board. At the hearing, which took place over a period of three days, various witnesses gave testimony. On December 11, 1986, after the close of the hearing, the board found plaintiff guilty of eight charges and not guilty of eight charges, ordering a 48-day suspension instead of discharge. Plaintiff was reinstated to active duty on December 31, 1986.

Subsequently, plaintiff filed a complaint. Count I sought administrative review of the findings, decision, and sentence of the board, and count II sought a declaratory judgment to void the proceedings and charges, and to order plaintiff’s reinstatement. Count II also alleged deprivation of unspecified constitutional rights.

The trial court granted defendants’ motions to dismiss counts I and II. Following Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, the trial court dismissed count I because the city’s chief of police was not named as a party defendant. Count II was dismissed because the Administrative Review Act (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 101 et seq.) was the sole remedy available to plaintiff. The trial court then denied plaintiff’s motions to add a count for attorney fees and costs under the city’s indemnity ordinance, to amend by naming the chief of police as a party defendant, and to consolidate with case No. 84L 50289.

Contrary to plaintiff’s assertions on appeal, this case and Lockett are factually similar. The Illinois Supreme Court in Lockett affirmed the trial court’s dismissal for lack of jurisdiction because the superintendent of police, who filed the charges, was not named as a party defendant and served summons within 35 days of the agency’s decision. (133 Ill. 2d at 354-56.) In Lockett, a police officer sought judicial review of a police board decision terminating his employment. The superintendent of police, who filed the initial disciplinary charges, was not named as a party defendant in the administrative review action. The board filed a motion to dismiss the complaint, alleging that the superintendent was a necessary party to the administrative review action and that the failure to name him in the complaint was a fatal defect. In his response, the plaintiff argued that notice to the board was notice to the superintendent since he was an agent of the board. In the alternative, the plaintiff sought to amend his complaint and join the superintendent as a defendant. Lockett, 133 Ill. 2d at 351-52.

Dismissing the complaint without granting leave to amend, the Lockett trial court ruled that it did not have jurisdiction because the failure to name the superintendent as a party defendant was a fatal defect. (133 Ill. 2d at 352.) The appellate court reversed, holding that the superintendent was not a necessary party since the board’s decision was being reviewed, not the decision of the person filing the charges, whose interest was the same as the board’s. Lockett v. Chicago Police Board (1988), 176 Ill. App. 3d 792, 794.

The Illinois Supreme Court, however, reversed the appellate court, ruling that the trial court properly dismissed the administrative review claim for lack of jurisdiction. The supreme court also explicitly overruled the appellate court cases that had earlier ruled a failure to name and issue summons against necessary parties within the 35-day time limit could be cured by subsequent amendment. Lockett, 133 Ill. 2d at 356.

In reaching its decision, the supreme court stated that the appellate court ignored the clear and unambiguous language of the Administrative Review Act (Ill. Rev. Stat. 1985, ch. 110, pars. 3 — 103, 3— 107), which mandates that all parties of record before the agency must be named as defendants in the administrative review action, and that all defendants be issued summons within 35 days of receipt of the agency decision. The supreme court explained that the Administrative Review Act procedures must be strictly followed. (Lockett, 133 Ill. 2d at 353.) The requirement that all persons who were parties of record to the administrative agency proceedings must be made defendants is mandatory, specific, and cannot be modified. (Lockett, 133 Ill. 2d at 354; Winston v. Zoning Board of Appeals (1950), 407 Ill. 588.) Accordingly, the court concluded, since the superintendent of police was a party of record to the board’s proceedings, the Act required his being named as a defendant. Lockett, 133 Ill. 2d at 354.

The Lockett decision is controlling. Plaintiff Marozas’ arguments against dismissal are essentially the same as those in Lockett; that is, notice to the board constituted notice to the chief of police and in the alternative, seeking to amend the complaint to join the chief of police as a party defendant. Contrary to plaintiff’s contention, the Burbank chief of police initiated plaintiff’s discharge. In December 1983, the chief of police wrote a letter to the board recommending discharge. Shortly after, the board issued a letter of termination, and the chief of police delivered it to plaintiff. That discharge was overturned by the courts.

Plaintiff argues that Lockett is distinguishable because the failure to name the superintendent of police as a party defendant was raised at the outset of the Lockett case, whereas the motion to dismiss plaintiff’s case was made three years after the complaint was filed, following the Lockett ruling in 1990. A motion to dismiss because of lack of jurisdiction, however, can be raised at any time. (Dubin v. Personnel Board (1989), 128 Ill. 2d 490, 496-97.) Furthermore, there is nothing in the Lockett decision that indicates that the timing of the motion to dismiss had any effect on the ruling.

Plaintiff then contends that his complaint was in accordance with the then existing law, which the attorney preparing the administrative review lawsuit was obligated to follow. Plaintiff cites Schoenbeck v. Board of Fire & Police Commissioners (1979), 69 Ill. App. 3d 366, and Rizzo v. Board of Fire & Police Commissioners (1973), 11 Ill. App. 3d 460, as the controlling case law at the time plaintiff filed his complaint for administrative review. The Schoenbeck court held that failure to name the chief of police as a party defendant did not make the complaint fatally defective because he did. not have a personal interest in the outcome. (Schoenbeck, 69 Ill. App. 3d at 372.) The court stated that his professional interest as head of the police" department was identical to that of the board, who was his employer. (Schoenbeck, 69 Ill. App. 3d at 372.) The court in Rizzo held that the board was the proper defendant in an action under the Administrative Review Act to review a policeman’s discharge. Rizzo, 11 Ill. App. 3d at 465.

Plaintiff acknowledges, however, that the Illinois Supreme Court in Lockett overruled Schoenbeck and other appellate court cases that held failure to name and issue summons against necessary parties within the 35-day time limit could be cured by subsequent amendment. (Lockett, 133 Ill. 2d at 356.) Specifically, the Lockett court stated that the Schoenbeck ruling ignored the clear and unambiguous language of the Administrative Review Act. Lockett, 133 Ill. 2d at 354.

At the time plaintiff’s attorney filed his lawsuit, however, the law regarding necessary parties was specified in the Administrative Review Act. (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 101 et seq.) Moreover, numerous Illinois Supreme Court and Appellate Court cases held that failure to name all parties who were of record at the administrative hearing makes a complaint fatally defective. (See Winston, 407 Ill. 588; O’Hare International Bank v. Zoning Board of Appeals (1972), 8 Ill. App. 3d 764.) The requirement of naming all parties of record as defendants is both mandatory and jurisdictional. (Winston, 407 Ill. at 595-96; O’Hare International Bank, 8 Ill. App. 3d at 767.) Section 3— 107 of the Administrative Review Act states:

“In any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants.” Ill. Rev. Stat. 1985, ch. 110, par. 3 — 107.

Plaintiff then argues that the proper party defendant was not the chief of police, but the city, which hired and employed him. Plaintiff maintains that the chief of police was not plaintiff’s employer and had no authority to hire, promote, or discharge him. Furthermore, plaintiff states, the chief of police acted as the city’s representative throughout the case before the board. Accordingly, plaintiff issued and served summons on the city, which filed its appearance.

Plaintiff relies on Rogenski v. Board of Fire & Police Commissioners (1972), 6 Ill. App. 3d 604, 608, which held that the party who filed the charges before the board, not its representative, was the necessary party. In assuming that the chief of police was merely acting as a representative of the board and city, plaintiff .ignores the fact that the chief of police initiated plaintiff’s discharge, resulting in the subsequent board hearing and suspension.

Plaintiff then asks, “What would be the purpose, or point, in having the Chief of Police as a party defendant rather than the City of Burbank, in this particular case, where the plaintiff has been reinstated after the filing of this case?” He goes on to say that the chief of police is no longer employed by the city and that the only remaining issues are the assessment of damages and back pay.

The record indicates that the chief of police was a party of record to the board’s hearing, making him a necessary party defendant in the subsequent administrative review action. That does not mean that the city is not also a necessary party defendant. Moreover, plaintiff is confusing his earlier summary discharge, which was reversed, with the administrative review of his suspension hearing, which is at issue in this appeal. If plaintiff maintains that the only remaining issues are the assessment of damages and back pay, those are not issues properly before this court. Failure to raise those issues at the administrative hearing constitutes waiver of the right to raise them on appeal. (Waste Management of Illinois, Inc. v. Pollution Control Board (1988), 175 Ill. App. 3d 1023, 1036.) Furthermore, those are issues relating to the prior lawsuit, which challenged plaintiff’s discharge.

We reject plaintiff’s argument that the Illinois Supreme Court decision in Lockett should not be applied retroactively. Lockett is to be applied retroactively since the dismissal of the administrative review complaint essentially gave the decision retroactive effect. It is within the inherent power of the State’s highest court to give a decision prospective or retroactive application. (Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d 304, 328-29.) Although reliance is a factor to be considered (Brown v. Metzger (1984), 104 Ill. 2d 30), a decision will generally be applied retroactively unless the court expressly declares that its decision is a clear break with the past. (Larrance v. Human Rights Comm’n (1988), 166 Ill. App. 3d 224.) The criteria for determining prospective or retroactive application of a decision are (1) a decision to be applied prospectively must establish a new principle of law; (2) whether the purpose and effect of the new decision are best served by prospective or retroactive application; and (3) the equities of the situation. Larrance, 166 Ill. App. 3d at 230.

In Strang v. Department of Transportation (1990), 206 Ill. App. 3d 368, 372, the court rejected the plaintiff’s argument that Lockett should not be applied retroactively to his case, stating that historically, overruling decisions have been given retroactive effect. The Strang court ruled that Lockett is to be retroactively applied because it is silent as to the scope of its application. 206 Ill. App. 3d at 373.

The Lockett decision does not establish a new principle of law since the plain language of the Administrative Review Act requires naming all parties of record at the administrative hearing as party defendants. Judicial interpretation of a statute does not necessarily constitute a change in law. (People v. Crete (1986), 113 Ill. 2d 156, 163.) When interpreting statutes, the statute does not mean one thing prior to a judicial interpretation and another afterwards. (Gates v. United States (7th Cir. 1975), 515 F.2d 73, 78.) Where judicial interpretation of a statute is a commonsense construction based on the clear wording of the statute, it does not have to be applied only prospectively. People v. Turnbeaugh (1983), 116 Ill. App. 3d 199, 205.

Furthermore, a decision on a question of jurisdiction must be given retroactive application. In Strang, the court ruled that the plaintiff’s failure to name the necessary parties in a timely manner deprived the court of subject-matter jurisdiction. (Strang, 206 Ill. App. 3d at 373.) By the very nature of the subject matter, a decision on a question of jurisdiction must be retroactive since a court cannot consider the merits of a case over which it has no jurisdiction. Lurz v. Panek (1988), 166 Ill. App. 3d 179,183.

Finally, plaintiff has offered no equitable considerations justifying his failure to comply with the statute. Naming the chief of police as a party defendant took a minimal amount of effort on plaintiff’s part. Moreover, plaintiff’s argument that Lockett should be restricted to the facts of that particular case because no appellee brief was filed is without merit.

We find Lockett controlling and apply it retroactively. The Lockett court explicitly overturned contrary appellate court decisions and did not limit its applicability to prospective use. Its interpretation of the Administrative Review Act was not a change of law and its ruling was a question of jurisdiction. Moreover, the cases relied on by plaintiff for not naming the chief of police as a party defendant were not the only cases on the subject. Other appellate court cases and at least one Illinois Supreme Court case held that every party of record in an administrative hearing must be named as a party defendant in any subsequent administrative review claim. (See Winston, 407 Ill. 588; O’Hare International Bank, 8 Ill. App. 3d 764.) Consequently, the trial court properly dismissed count I of the complaint.

Next, plaintiff asserts that the trial court erred in dismissing count II of the complaint even though the Administrative Review Act provides that it is the sole remedy of any party seeking review of a final decision of a board. (People ex rel. Smith v. Board of Fire & Police Commissioners (1977), 51 Ill. App. 3d 221.) Plaintiff maintains that his complaint contained one count filed under the Administrative Review Act and a second count, a declaratory relief count, which sought a declaration that the board’s proceedings were entirely void because they deprived plaintiff of his constitutional rights, including procedural due process rights. Furthermore, plaintiff contends, the constitutional issues he raised required the court to consider evidence of redress and award damages under 42 U.S.C.A. section 1983 (West 1988).

Plaintiff argues that Illinois statutes authorize count II of his complaint. He relies on section 2 — 701(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 701(b)), which provides that a declaration of rights may be part of a complaint seeking other relief, and sections 2 — 603(b) and 2 — 613(a) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2 — 603(b), 2 — 613(a)), which authorize parties to plead as many causes of action as they may have, separately designated and numbered.

Further, plaintiff relies on Young v. Hansen (1969), 118 Ill. App. 2d 1, 5, to assert that the declaratory judgment act (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 701) does not become inapplicable merely because relief or remedies other than a declaration of rights are sought. Young also states, however, that the declaratory judgment action should be available along with other remedies if there is no particular reason for denying the use of this procedure when another remedy is available. (Emphasis added.) (Young, 118 Ill. App. 2d at 6.) Therefore, Young is inapplicable because the Administrative Review Act expressly denies the use of any other form of relief.

Defendants reply that the Administrative Review Act precludes plaintiff from any other avenues of redress. By its express terms, defendants state, section 2 — 347 of the Municipal Code of the City of Burbank provides that the Administrative Review Act governs in all reviews of any final administrative decisions by the board. Furthermore, the Administrative Review Act states that in all administrative review cases, “any other statutory, equitable or common law mode of review of decisions of administrative agencies heretofore available shall not hereafter be employed.” Ill. Rev. Stat. 1985, ch. 110, par. 3-102.

Defendants cite various cases holding that no other relief is available, including declaratory relief, where a statutory scheme confers power on an administrative agency and adopts the Administrative Review Act as its method of reviewing the agency’s decisions. See Dubin v. Personnel Board (1989), 128 Ill. 2d 490; Coles-Moultrie Electric Cooperative v. Illinois Commerce Comm’n (1985), 131 Ill. App. 3d 946; Sullivan v. Board of Fire & Police Commissioners (1981), 103 Ill. App. 3d 167; People ex rel. Smith v. Board of Fire & Police Commissioners (1977), 51 Ill. App. 3d 221.

The Administrative Review Act provides a simple mode of review, eliminates the inequities and confusion of traditional common law remedies, and provides a single uniform method by which administrative decisions of a governmental agency can be reviewed. (People ex rel. Smith, 51 Ill. App. 3d at 223.) When the Act applies, it is the sole and exclusive method for obtaining judicial review of an administrative decision. (Broccolo v. Village of Skokie (1972), 14 Ill. App. 3d 27, 31.) Furthermore, the reviewing court’s power to resolve any controversy regarding the sufficiency of the administrative agency’s findings of fact must be exercised within the course of reviewing the board’s discharge order and not in a separate proceeding. Dubin, 128 Ill. 2d at 499.

We reject plaintiff’s argument that count II properly seeks a declaratory judgment voiding the board’s decision based on constitutional grounds. Any due process claims are inherent in an administrative review action because the reviewing court has a duty to insure that due process and an impartial adjudication were provided at the administrative hearing. (Lee v. City of Peoria (7th Cir. 1982), 685 F.2d 196, 201; Edwards v. City of Quincy (1984), 124 Ill. App. 3d 1004, 1012.) The purpose of administrative review is “to make certain the agency has acted within its judicial bounds defined by law, to guard those statutory and constitutional rights guaranteed to one subject to administrative action, and to ascertain whether the record supports the order issued.” Edwards, 124 Ill. App. 3d at 1012.

Moreover, plaintiff’s complaint relates solely to the hearing that resulted in his suspension, not his previous discharge. Therefore, issues emanating from the previous case and not raised at the suspension hearing are not proper for review by this court. Those include the issues of back pay and damages.

We also reject plaintiff’s argument that he raised a valid section 1983 claim. The complaint states only that the board’s “wrongful and incorrect actions *** deprived [him] of his Constitutional rights under the Constitutions of the United States of America and of the State of Illinois.” Those pleadings failed to allege anything resembling a cause of action for a section 1983 claim. Furthermore, plaintiff waived the issue on review because he did not raise it at the trial level. Mendleson v. Lillard (1980), 83 Ill. App. 3d 1088, 1093.

We find that the trial court properly dismissed count II because it improperly sought a declaratory judgment on the board’s final decision. In considering a motion to dismiss, the pleadings are to be strictly construed against the pleader. (Sullivan, 103 Ill. App. 3d at 173.) Count II incorporated all of count I, which was the administrative review claim. It then claimed that the board’s wrongful and incorrect actions deprived plaintiff of unspecified constitutional rights, and that the filing and prosecution of the charges were politically and personally motivated. Ostensibly, these claims refer to plaintiff’s due process rights, which are necessarily reviewed by the court within the administrative review claim.

Furthermore, plaintiff’s claim regarding the motivations of the board was waived because it was not raised in the administrative hearing. A claim of bias or prejudice on the part of a member of the administrative agency must be asserted promptly after knowledge of the alleged disqualification. Waste Management, 175 Ill. App. 3d at 1039.

Count II then claims that the board wrongfully refused to reinstate plaintiff. This is also a review of the board’s final decision since plaintiff’s motion for reinstatement was denied as part of the hearing. In fact, paragraph 9(a) of count I claims that plaintiff’s motion for reinstatement was erroneously denied by the board.

Plaintiff then asserts that the trial court erred in denying his motion to amend the complaint to add the Burbank chief of police as a party defendant. Instead of arguing the basis of such an amendment, however, plaintiff contends that the chief of police could not contribute anything to the proceeding except to avoid dismissal of the case.

Plaintiff’s motion to add the chief of police as a party defendant was properly denied. If the amendment was intended to comply with the Administrative Review Act’s jurisdictional requirement, it was foreclosed by the Lockett decision. If the amendment was for the purpose of pursuing other causes of action arising from his suspension, the sole remedy is pursuant to the Administrative Review Act.

Next, plaintiff contends that the trial court erred in denying his motion to amend the complaint for back pay, damages, and reimbursement of attorney fees pursuant to the city’s indemnification ordinance. Plaintiff addresses only the indemnification issue. He relies on Anderson v. City of Kewanee (1981), 99 Ill. App. 3d 456, where the police and fire chiefs were terminated from their employment, were ordered reinstated by the court, and again terminated. Pursuant to a city indemnification ordinance, the two chiefs filed a lawsuit to recover legal fees and costs in all of the suits. Since the ordinance provided indemnification for any proceeding in which an employee may be involved, the Anderson court ruled that it did not limit indemnification to employees who are defendants in an action. Anderson, 99 Ill. App. 3d at 461.

The trial court properly denied plaintiff’s motions to add back pay, damages, and indemnification. The administrative review action was barred because of the failure to name the chief of police as a defendant. Furthermore, if there had been a proper administrative review action, plaintiff would have waived those issues because they were not raised during the board’s hearing. (Waste Management, 175 Ill. App. 3d at 1039.) Finally, those claims were based on the earlier dismissal, not the suspension hearing, which was the subject of this appeal.

Next, plaintiff asserts that the trial court erred in denying his motion to consolidate this case with No. 84 L 50289 for the determination of back pay and damages since the issue was specifically reserved in that previous case. Plaintiff gives no authority and no argument for his contention.

The two cases cannot be consolidated unless separate pending actions exist. Illinois law provides that actions pending in the same court may be consolidated for convenience. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1006.) The prior litigation, case 84 L 50289, ended with a final and appealable order, and was affirmed on appeal. Therefore, the trial court did not abuse its discretion in denying the motion to consolidate. Clore v. Fredman (1974), 59 Ill. 2d 20, 28.

Finally, plaintiff confusedly raises a due process argument. He states that his constitutional rights were violated when he was wrongfully discharged without a hearing, and wrongfully kept off his job and deprived of his pay and benefits for three years. Therefore, he argues, since he had a property interest of which he was wrongfully deprived without procedural due process, he was entitled to recover damages under section 1983. He relies on Kuhns v. City of Commerce City (D. Colo. 1985), 621 F. Supp. 41, and Vinyard v. King (10th Cir. 1984), 728 F.2d 428. Kuhns was remanded for the trial court to determine whether there were damages caused because the hearing was after the discharge rather than before (Kuhns, 621 F. Supp. at 44), and Vinyard held that termination without a hearing to determine whether cause existed was a section 1983 violation (Vinyard, 728 F.2d at 433).

Plaintiff is confusing his discharge, which was overturned, with his administrative hearing, which resulted in his suspension. This case is an administrative review of the board’s suspension hearing, which resulted in his suspension, not a review of his earlier dismissal, which was the subject of previous litigation over which we have no jurisdiction.

Based on the foregoing, the circuit court judgment is affirmed.

Affirmed.

RIZZI and TULLY, JJ., concur.

       Justice White heard oral arguments on this case prior to his retirement. Justice Tully reviewed the briefs and the record and concurred with the decision.