author: PRESIDING JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM WHIGAM, Defendant-Appellant (Jim Edgar, Secretary of State, et al., Contemnors-Appellees).
    First District (3rd Division)
    Nos. 1—88—3442, 1—88—3443 cons.
    Opinion filed August 15, 1990.

      Thomas William Burke, of Elmwood Park, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago, for the People.
    Neil F. Hartigan, Attorney General, of Springfield (Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellees Jim Edgar and Gary McAlvey.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Defendant, William B. Whigam, is the appellant in two appeals which have been consolidated. In appeal No. 1 — 88—3442 from circuit court number X7 — 038—101, defendant argues that: (1) amended section 5 — 6—3.1(f) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 6—3.1(f)) is unconstitutional as an ex post facto law because it deprived him of his right to expunge the record of his conviction for driving under the influence two years after the completion of supervision; (2) Jim Edgar, the Illinois Secretary of State, and Gary McAlvey, the Director of the Illinois Bureau of Identification (IBI) were guilty of criminal contempt because they failed to obey the order to expunge the record of defendant’s driving under the influence conviction; (3) the trial judge who did not enter the order to expunge lacked jurisdiction to void the order after 30 days passed without State challenge or appeal; and (4) the trial court erred in denying defendant’s motion for class certification.

In appeal No. 1—88—3443 from circuit court number X9—407—446, defendant argues that: (1) the trial court erred in ordering a new trial after defendant chose to stand on motions challenging the constitutionality of sections 5—6—1(d)(1) and 5—6—3.1(f) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, pars. 1005—6—1(d), 1005—6—3.1(f)); (2) there was no basis for a new trial because the error was the failure of the evidence to support the charge; and (3) the trial court erred in vacating the designation of the lawsuit as a class action.

Defendant was charged in complaint number X7 —038—101 with driving under the influence of alcohol (Ill. Rev. Stat. 1983, ch. 95½, par. 11—501(a)) on November 6, 1983. On May 15, 1984, defendant was placed under supervision until May 14, 1985, and was ordered to pay $300 in fines and costs. On October 13, 1986, defendant filed a petition to expunge the record of his arrest on the basis that he had not since been convicted or arrested of any criminal offense or municipal ordinance violation. On November 17, 1986, the Forest Park police, which was the arresting authority, and the Director of the Illinois Department of Law Enforcement of the State of Illinois were ordered to expunge all records of defendant’s arrest. A handwritten note appearing on the petition and order to expunge, which were contained on one form, stated “Vacated 3-16-87.”

On May 18, 1988, defendant filed a motion to cite Edgar, McAlvey, and Robert Conklin, chief of the Forest Park police, for ignoring the order to expunge. Defendant requested that sanctions be imposed until the record of arrest was surrendered to the court and that the Secretary of State be ordered: (1) to inform all citizens arrested for a violation of section 11—501(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95½, par. 11 —501(a)) before January 1, 1984, and sentenced to supervision that each had a right to expunge his arrest record two years after the successful termination of supervision; and (2) purge its records of defendant’s convictions for driving under the influence that were based upon consideration of pre-1984 supervision that was successfully terminated.

Defendant then moved “to designate his post trial motion a class action,” and argued that: (1) common to numerous persons was an issue concerning the amendment of section 5 — 6—3.1(f) (Ill. Rev. Stat. 1983, ch. 38, par. 1005—6—3.1(f)), effective January 1, 1984, which increased from two to five years after the successful termination of supervision the time when records could be expunged of driving under the influence convictions committed on or before December 31, 1983; (2) there was a vested right to have one’s arrest records expunged in two years; and (3) the increase to five years was an unlawful ex post facto law because it exposed an offender to a more severe penal risk.

Conklin filed a response to the motion for an order of contempt in which he stated that upon his receipt of a copy of the order to expunge, on or about November 28, 1986, he forwarded a copy to the presiding judge of the Fourth Municipal District of Cook County for directions on the effect of the order in light of section 5—6—3.1(f) (Ill. Rev. Stat. 1983, ch. 38, par. 1005—6—3.1(f)), in force on the date of defendant’s sentencing, which permitted expungement only after five years from a discharge and dismissal from a sentence of supervision for a violation of section 11—501 of the Illinois Vehicle Code. After March 16, 1987, the Forest Park police department was advised that the order to expunge had been vacated on that date. Conklin argued that because the order had been vacated, he did not improperly fail to expunge the record of defendant’s arrest.

Edgar and McAlvey argued in their response that: (1) on March 17, 1987, the IBI was notified by the clerk of the court that the order of expungement had been vacated on March 16, 1987; (2) defendant was not eligible to petition for expungement until May 14, 1990, which was five years after his supervision terminated; (3) Edgar and McAlvey could not be in violation of the order because the expungement order had been vacated; (4) the order to expunge was not directed to Edgar or to the Secretary of State; and (5) defendant had adequate notice of the amendment increasing the period to five years because the amendment became effective months before he was sentenced.

Pursuant to section 2 — 413 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 413), defendant’s attorney filed an affidavit in which he swore that contempt sanctions were being sought because of the contemnors’ personal knowledge of the order of expungement and the lack of either a notice of appeal, a motion to excuse compliance, or a motion to vacate.

Conklin was dismissed by agreement of the parties on October 14, 1988. On October 21, 1988, Edgar and McAlvey were dismissed on the basis that they were not parties to the expungement proceeding, the order of expungement was reinstated, the order vacating the order of expungement was declared void, and, on the basis that the court had no jurisdiction to entertain class actions, the motion to designate the proceeding as a class action was “dismissed.”

On November 10, 1988, defendant filed a motion to modify the October 21, 1988, order pursuant to section 2—1203 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1203). Defendant argued that section 5—6—3.1(f) was unconstitutional, that Edgar and McAlvey should have been held in contempt, and that the court erred in not designating the proceeding as a class action. On November 16, 1988, the motion was continued to November 23, 1988. On November 18, 1988, defendant filed a notice of appeal from the October 21, 1988, order.

Complaint number X9 — 407—446 charged defendant with driving under the influence on September 30, 1987. On August 19, 1988, defendant filed a motion for exception from section 5 — 6—l(d)’s prohibition against the granting of supervision to defendants who had within the previous five years received supervision for a violation of section 11 — 501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 38, par. 1005—6—1(d)) on the basis that the amendment adding subsection (d) was an ex post facto law. The motion apparently was not ruled upon, but defense counsel stated that defendant elected to stand on his motion and that the election was tantamount to a plea of guilty.

On October 31, 1988, defendant was sentenced to one year’s conditional discharge, was assessed $200 for court costs and a fine, and the proceeding was designated as a class action. On November 23, 1988, this order was vacated nunc pro tunc October 31, 1988, the motion to designate the lawsuit as a class action was denied on the basis that a class action belonged in the chancery division, and the matter was set for trial on December 7, 1988. On November 28, 1988, defendant filed a notice of appeal from the October 31, 1988, and November 23, 1988, orders.

APPEAL NO. 1-88-3442; CIRCUIT COURT NO. X7-038-101

Defendant appeals from the October 21, 1988, order that dismissed the remaining parties against whom defendant sought contempt sanctions, that reinstated the expungement order, and that denied defendant’s motion to designate the proceeding as a class action. Edgar and McAlvey argue that there is no appellate jurisdiction because the notice of appeal was filed prematurely, prior to a ruling on defendant’s motion to modify, so that under Supreme Court Rule 303(a)(2) (107 Ill. 2d R. 303(a)(2)) on civil appeals (which it is argued applies because of the civil nature of the contempt proceeding), defendant’s notice of appeal filed before the entry of the order disposing of the last pending post-trial motion had no effect. They argue that the order reinstating expungement was not appealable by defendant because he was not prejudiced thereby and because, although the ruling which refused to designate the suit as a class action was final as to defendant, defendant was no longer a member of the class he sought to represent on the basis that he had obtained an expungement order.

The trial court in criminal cases may reconsider final appealable judgments and orders within 30 days of their entry (People v. Heil (1978), 71 Ill. 2d 458, 461, 376 N.E.2d 1002), and if a timely motion to reconsider the order is filed, the time for appeal does not commence until that motion has been denied (People v. Van Matre (1988), 164 Ill. App. 3d 201, 203, 517 N.E.2d 768). By virtue of the filing of a post-trial motion, a judgment is not final and appealable until the motion is ruled upon by the court. People v. Swiercz (1982), 104 Ill. App. 3d 733, 735-36, 432 N.E.2d 900.

Supreme Court Rule 606(b) on criminal appeals provides in part:

“Except as provided in Rule 604(d), the notice of appeal must be filed *** within 30 days after the entry of the final judgment appealed from or if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion.” (107 Ill. 2d R. 606(b).)

The rule does not contain the specific language, as does Supreme Court Rule 303(a)(2) (107 Ill. 2d R. 303(a)(2)), that a notice of appeal has no effect if filed before the entry of the order disposing of the last pending post-trial motion. But Supreme Court Rule 303(a)(2) was apparently amended to contain that language to address the problem of when a notice of appeal must be filed if more than one post-trial motion is pending and to make clear that the 30-day period for filing a notice of appeal begins to run after the disposition of the last post-trial motion. (Ill. Ann. Stat., ch. 110A, par. 303, Historical and Practice Notes, at 94 (Smith-Hurd 1985).) We hold that under Supreme Court Rule 606(b), a notice of appeal filed before the disposition of a motion directed to the final judgment in a criminal case is premature.

Therefore, even if the October 21, 1988, order was final, defendant’s notice of appeal was premature because under either Supreme Court Rule 303(a)(1) (107 Ill. 2d R. 303(a)(1)) on civil appeals or Supreme Court Rule 606(b) (107 Ill. 2d R. 606(b)) on criminal appeals, the notice of appeal must be filed within 30 days after the entry of the order disposing of a timely post-trial motion.

Defendant’s jurisdictional statement states that jurisdiction is based on section 2 — 1401 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401), which provides for relief from final order and judgments after 30 days from their entry, but defendant did not seek to modify the October 21, 1988, order under this section because his motion to modify was filed within 30 days.

APPEAL NO. 1-88-3443; CIRCUIT COURT NO. X9-407-446

Defendant states in his jurisdictional statement that he is appealing under Supreme Court Rule 604(b), which permits defendants who have been placed under supervision or who have been found guilty and sentenced to probation, conditional discharge or periodic imprisonment to appeal from the judgment, conditions of supervision or sentence, the finding of guilt, or from a modification or revocation of such an order or sentence. (107 Ill. 2d R. 604(b).) Jurisdiction over defendant’s appeal cannot be based upon this rule because defendant’s sentence of conditional discharge had been vacated and he was given a new trial date.

Absent authorization by a statute or a supreme court rule, one may not appeal from a nonfinal order in a civil or criminal case because the reviewing court generally has jurisdiction only over final judgments. (In re Gomez (1981), 100 Ill. App. 3d 299, 301, 426 N.E.2d 1004.) A final order decides the controversy on the merits. (People v. Kuhn (1988), 126 Ill. 2d 202, 207, 533 N.E.2d 909.) The order denying defendant’s motion to designate the proceeding as a class action, vacating the sentence, and setting the matter for trial was not a final order and therefore was not appealable. See Kuhn, 126 Ill. 2d at 207 (there is no appellate jurisdiction where the trial court did not sentence defendant but merely continued the case).

The consolidated appeals are dismissed because of the lack of appellate jurisdiction.

Appeals dismissed.

RIZZI and FREEMAN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    ESTATE OF ARTHUR B. KNIGHT, Deceased, Petitioner-Appellant and Cross-Respondent-Appellee, v. TERESA RAI KNIGHT, Adm’r, Respondent-Appellee and Cross-Petitioner-Appellant.
    First District (3rd Division)
    Nos. 1—89—2534, 1—89—2658 cons.
    Opinion filed August 15, 1990.

      Veva I. Young, of Chicago, for appellant Estate of Arthur B. Knight.
    James J. Seaberry, of Chicago, for appellant Doris Nesbitt.
    Louis J. Barnes, of Chicago, for appellee.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

This is an appeal from an order of the circuit court awarding attorney fees for a previous suit to construe a will and administrator fees. The petitioner, the estate of Arthur B. Knight, deceased, filed a petition asking the circuit court to assess administrator fees, deny attorney fees for appellate work in the previous litigation, and to tax the administrator for appeal costs incurred in the previous litigation. The petitioner contends that the trial court erred in awarding attorney fees because such fees are not to be borne by the estate where the will is not ambiguous and the litigation is unnecessary. The petitioner further asserts that the fee awarded to the administrator is excessive and that the administrator should have been taxed for the appeal costs incurred when the administrator appealed from the trial court’s judgment dismissing her will construction suit. The executor for the estate of Dorothy T. Knight, deceased, the sole beneficiary under Arthur’s will whose motion to intervene was rejected by the circuit court, has been granted a right to intervene on this appeal. The intervenor raises the same arguments, but advances the additional contention that attorney fees for work performed at the trial level should have also been denied.

On June 26, 1976, Arthur and Dorothy Knight executed a joint and mutual will devising all their property to the survivor or, in case of simultaneous death, to various charities. Arthur Knight died on April 16, 1979. Dorothy filed the will with the circuit court of Cook County but failed to take further action. Dorothy died on January 1, 1981, without ever admitting the will to probate. Arthur’s son, Harold C. Knight, whom Arthur disinherited, admitted the will to probate on May 6, 1983, and nominated his daughter, Teresa Rai Knight, as administrator. The present appeal is the third time that this estate has been before this court.

In September of 1983, Harold initiated a supplemental proceeding challenging the validity of the will, alleging that Dorothy, who was Arthur’s fourth wife, fraudulently conspired with her attorney to prepare a will omitting him as an heir, that Dorothy deceived Arthur into disinheriting him, and that the will was modified without Arthur’s knowledge. The trial court dismissed the complaint for failure to state a cause of action, and this court affirmed in a Rule 23 order (107 Ill. 2d R. 23), holding that the complaint failed to allege any facts supporting the conclusory allegations.

Approximately 4V2 years later, when the final account was supposed to be filed and the estate closed, counsel for the administrator, Veva Young, filed a petition for fees. The administrator then hired Louis Barnes as co-counsel for representation in the administration of Arthur’s estate and together they challenged the fee petition filed by Young. At a hearing held on June 7, 1988, scheduled for the purpose of addressing Young’s fee petition, the administrator also filed a petition seeking a declaration that part of the will was invalid and asking the court to construe the will accordingly. The trial court dismissed the petition and this court affirmed. (In re Estate of Knight (1989), 178 Ill. App. 3d 777, 533 N.E.2d 949.) In that appeal, Teresa Rai Knight contended that the article devising all the property to the survivor was invalid on the theory that the gift lapsed when Dorothy failed to admit the will to probate. Teresa argued that probate proceedings were a condition precedent to the vesting of the property and that the property should be distributed intestate. If Teresa had been successful, two-thirds of the estate would have gone to her father, who had been expressly disinherited in the will. This court rejected Teresa’s contention, holding that the property vested upon Arthur’s death and that it passed to Dorothy’s estate. In re Estate of Knight, 178 Ill. App. 3d at 779.

Thereafter, Yeva Young, still acting as co-counsel for the administrator, filed a petition to assess the administrator’s fees, to tax the administrator for the costs of appealing in the will construction suit, and to deny attorney fees for the appeal. Teresa filed her response and a petition seeking administrator fees in the amount of $10,334.96 and attorney fees in the amount of $7,600. On June 14, 1989, the trial court awarded $4,000 in administrator’s fees, $3,800 in attorney fees, and refused to tax the administrator for the costs of the appeal. Young filed a petition for rehearing, and Doris T. Nesbitt, executor of the estate of Dorothy Knight, filed a motion to intervene. On August 25, the trial court denied both motions.

Before addressing the merits, we wish to note that we are aware of the peculiar posture under which the petition was filed; that is, the petition against the administrator being filed by the administrator’s co-counsel. The parties, however, have not broached the subject, and we will not delve into the matter. It is enough for us that the executor for the estate of Dorothy Knight, whom we have allowed to intervene in this appeal, raises the identical issues.

The petitioner argues first that the trial court erred in awarding attorney fees for services rendered in the appeal in In re Estate of Knight. Ordinarily, attorney fees and litigation costs are not recoverable absent a contract or statute. (Merchants National Bank v. Old Second National Bank (1987), 164 Ill. App. 3d 11, 16, 517 N.E.2d 652.) Illinois allows fees for attorneys representing administrators (Ill. Rev. Stat. 1987, ch. 110½, par. 27—2), and the determination of what constitutes reasonable compensation is a matter peculiarly within the discretion of the trial court. (In re Estate of Halas (1987), 159 Ill. App. 3d 818, 831-32, 512 N.E.2d 1276.) In cases involving will construction, however, attorney fees and costs are not allowed unless the will is so ambiguous that construction of the will is necessary to resolve adverse claims. (Raasch v. Meier (1988), 171 Ill. App. 3d 226, 231, 524 N.E.2d 1206; Merchants National Bank, 164 Ill. App. 3d at 16.) Where a will is ambiguous, attorney fees and costs are awarded to a party even if the construction adopted by the court is adverse to that party’s claim. (Merchants National Bank, 164 Ill. App. 3d at 16.) While the award of attorney fees is a matter within the sound discretion of the trial court, fees will not be allowed where construction is not necessary. (Merchants National Bank, 164 Ill. App. 3d at 16.) The test is whether there is an honest difference of opinion regarding construction of the will. (Merchants National Bank, 164 Ill. App. 3d at 16; Ingalsbe v. Gough (1971), 2 Ill. App. 3d 681, 683, 277 N.E.2d 149.) Even where construction of a will is necessary, however, the losing party who decides to appeal litigates at his or her own risk and is not entitled to attorney fees and costs. Rosenthal v. First National Bank (1970), 127 Ill. App. 2d 371, 374, 262 N.E.2d 262. See also 1 Horner, Probate Practice & Estates §113, at 244 (4th ed. 1984); 4 Page, The Law of Wills §31.16, at 224-25 (Bowe-Parker rev. 1961).

In the instant case, the petitioner argues that the trial court and this court have previously determined that Arthur’s will is unambiguous. Therefore, petitioner asserts that the administrator was not entitled to attorney fees for bringing the appeal in the previous litigation. The administrator argues that the will, though not ambiguous on its face, became ambiguous when Dorothy Knight failed to admit the will to probate, a contingency that Arthur did not contemplate. The administrator then maintains that she was under a duty to seek guidance from the probate court as to whether the property must be distributed intestate or according to the will. She further asserts that she was forced to prosecute an appeal after her suit was dismissed because the trial judge did not articulate the reasons for his judgment.

The record reveals that the trial judge believed that the will was clear and unambiguous. In dismissing the administrator’s suit, the trial judge stated:

“[Tjhere is no necessity to construe this Will. It is clear and I think the case law will show that the devolution of this estate goes exactly according to article 2 as read.”

The administrator was instructed by the trial court regarding the effect of Dorothy’s failure to admit the will to probate. The only interest served by appealing was that of her father, who was disinherited in the will. Teresa appealed at her own risk and must bear the costs of that appeal. Accordingly, we hold that the trial court erred in awarding attorney fees for prosecuting the appeal.

The intervenor raises the additional contention that attorney-fees for work performed at the trial level should have been denied. In deciding this issue, this court must decide whether there was an honest difference of opinion as to the proper construction of Arthur’s will. Although the trial judge found the will to be unambiguous, this court never made any statements to that effect in In re Estate of Knight. Nevertheless, we have examined the opinion issued in In re Estate of Knight and the decisions cited therein, and we conclude that construction of the will was not necessary.

As revealed in In re Estate of Knight, it has been long settled that the law favors the vesting of estates at the earliest opportunity, and estates devised will vest upon the testator’s death unless a later time is apparent from the express provisions of the will. (In re Estate of Knight, 178 Ill. App. 3d at 779, citing Geiger v. Geer (1946), 395 Ill. 367, 374, 69 N.E.2d 848.) The court recognized that under our probate act a devisee cannot assert his title to property until the will is admitted to probate. (In re Estate of Knight, 178 Ill. App. 3d at 778.) The court found, however, that the probate act did not cause the devise to lapse, noting that our courts have always recognized the distinction between the vesting of an estate and the right to enjoy possession of that estate. (In re Estate of Knight, 178 Ill. App. 3d at 779.) The court then cited Larison v. Record (1987), 117 Ill. 2d 444, 512 N.E.2d 1251, a factually similar case, and found it controlling although that case never raised the issue. The court further relied upon a 1938 Oklahoma decision which held that under reciprocal wills, title to property vests immediately in the survivor upon the testator’s death notwithstanding the survivor’s failure to probate the will. (In re Estate of Knight, 178 Ill. App. 3d at 780, citing Royston v. Besett (1938), 183 Okla. 643, 83 P.2d 874.) The court further found this holding to be consistent with our jurisprudence in the area of joint and mutual wills. Because a joint and mutual will is a contract, the provisions of which become irrevocable upon the death of one of the testators, a survivor could easily circumvent the contract by merely failing to admit the will to probate unless the interests under the will vested immediately upon the death of the first testator. (In re Estate of Knight, 178 Ill. App. 3d at 780.) In contrast, the respondents have failed to present us with any authority supporting a contrary view. Therefore, we further hold that attorney fees for work performed at the trial level should not have been awarded.

The petitioner argues next that the trial judge awarded an excessive fee to the administrator. Administrators are entitled to reasonable compensation for their services (Ill. Rev. Stat. 1987, ch. 110½, par. 27—1), and the determination of what is reasonable is a matter of discretion for the trial judge. (In re Estate of Enos (1979), 69 Ill. App. 3d 129, 131, 386 N.E.2d 1147.) The appropriate factors that may be considered include good faith, diligence, time expended, the size of the estate, and the benefits conferred upon the estate. (In re Estate of Halas, 159 Ill. App. 3d at 832.) The probate court possesses the skill and experience to evaluate the services rendered on behalf of an estate, and its judgment will not be disturbed absent manifest or palpable error. (In re Estate of Halas, 159 Ill. App. 3d at 832.) Teresa Rai Knight requested $10,334.96 for 145 hours of work and expenses. The trial judge awarded a fee of $4,000. We find that the fee is not excessive and affirm that part of the circuit court’s judgment.

Finally, the petitioner contends that the trial court erred in refusing to tax the administrator for the costs of the appeal in In re Estate of Knight. The trial judge stated in his remarks to counsel, however, that he was taking the costs of the appeal into consideration in tabulating the administrator’s fee. Thus, although the trial judge did not enter an order taxing the administrator for the costs expended by the estate in her appeal, the end result was the same. Accordingly, we will not reverse the decision of the trial judge refusing to tax the administrator.

For the foregoing reasons, we affirm that part of the- circuit court’s judgment awarding the administrator $4,000 and reverse the award of attorney fees to Louis Barnes.

Affirmed in part and reversed in part.

WHITE and RIZZI, JJ., concur.


text:
    THE CITY OF EVANSTON, Plaintiffs-Appellants and Cross-Appellees, v. REGIONAL TRANSPORTATION AUTHORITY et al., Defendants-Appellees and Cross-Appellants.
    First District (3rd Division)
    No. 1—89—0545
    Opinion filed August 15, 1990.

      Jack M. Siegel, of Chicago, for appellants.
    Burke, Bosselman & Weaver, of Chicago, for appellees.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

At dispute in this appeal and cross-appeal is the proposed building of a bus garage and maintenance facility in the City of Evanston by the Regional Transportation Authority (RTA) and its suburban bus division, PACE. Plaintiffs, Evanston, Joan W. Barr, Ann Rainey, and Norris Larson (hereinafter referred to collectively as Evanston), appeal from the granting of summary judgment on count I of RTA’s and PACE’s second amended counterclaim which asserted that they were exempt as regional transportation agencies from Evanston’s zoning. Evanston also argues on appeal that the trial court erred in permitting the second amended counterclaim to be amended to delete reference to the North Suburban Mass Transit District (Nortran), the agency that provided bus service on behalf of PACE in the northern suburbs and the proposed user of the facility, because Nortran was a necessary party. RTA and PACE cross-appeal from the dismissal of counts V through XI of their counterclaim which alleged a taking and damaging of their property in violation of the Federal and State constitutions, a denial of substantive due process and equal protection, and violations of section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1982)) based on this denial. RTA and PACE argue that the trial court erred in holding that, as political subdivisions, they lacked constitutional rights.

Evanston filed a complaint against RTA, PACE, National Steel Service Center, Inc. (National), and the Urban Mass Transportation Administration for injunctive relief against any Federal financial assistance for the construction and operation of a bus maintenance facility in Evanston and against the consummation of the sale by National of property in Evanston to PACE. Plaintiffs alleged that pursuant to an Evanston zoning ordinance, such a facility located in zone M-4 required a special use permit. Defendants’ motion to dismiss the complaint was granted.

RTA’s and PACE’s second amended counterclaim against Evanston alleged in count I that: RTA was a regional governmental body; PACE provided bus transportation for RTA and owned property in Evanston which was purchased for use as a bus storage and maintenance facility to house buses operated by Nortran; the property was located in M-4, Evanston’s heaviest manufacturing classification; Evanston amended its zoning ordinance on March 10, 1986, to make bus storage and maintenance facilities prohibited without a special use permit; Evanston denied PACE a special use permit; PACE incurred damages because of its inability to use the property as planned; and RTA and PACE as regional governmental bodies and Nortran as a regional agency operating under an agreement with PACE were exempt from Evanston’s zoning restrictions. RTA and PACE sought a declaratory judgment that they and Nortran could use the property for the proposed facility.

RTA and PACE alleged in counts III and IV that the rezoning ordinance and the denial of the permit, respectively, were arbitrary, capricious and invalid.

RTA and PACE alleged in count V that the following actions of Evanston were done for the illegal purpose of keeping the property on the city tax rolls and deprived PACE of its use of the property: passage of a resolution of condemnation; amendment of its zoning ordinance; filing of the Federal suit; requirement that PACE file, and present evidence in support of, an application for a special use permit; and denial of the application for a special use permit. It was further alleged that PACE had not been able to use the facility and that the deprivation was a taking and damaging of its property in violation of the fifth amendment to the United States Constitution and of section 2 of article I of the Illinois Constitution of 1970. PACE sought compensation for the taking and damaging.

RTA and PACE alleged in count VI that: the amendment of the zoning ordinance bore no rational relationship to any proper public purpose; the amendment was enacted to prevent PACE from using the property in order to keep the property on the city tax rolls; and, therefore, Evanston denied RTA and PACE substantive due process guaranteed by the fourteenth amendment to the United States Constitution and by section 2 of article I of the Illinois Constitution of 1970.

RTA and PACE alleged in count VII that: the amended zoning ordinance bore no rational relationship to any proper public purpose; there was no rational distinction between bus storage and maintenance facilities and other uses permitted in the M-4 zoning district; Evanston intentionally discriminated against owners of publicly owned bus storage and maintenance facilities by treating such facilities differently than other similarly situated and more detrimental uses in the M-4 zoning district; and, therefore, Evanston had intentionally denied RTA and PACE equal protection of the laws guaranteed by the fourteenth amendment of the United States Constitution and by section 2 of article I of the Illinois Constitution of 1970. RTA and PACE sought a declaration that the zoning amendment was void and that PACE and RTA had the right to use the property as a bus facility.

RTA and PACE alleged in count VIII that: the denial of a special use permit bore no rational relationship to any proper public purpose; that Evanston intentionally discriminated against PACE by denying it a special use permit; and that Evanston had thereby intentionally denied RTA and PACE equal protection of the laws. They sought a declaration that the denial of a special use permit was void and that they had the right to use the property as a bus facility.

RTA and PACE alleged in count IX that: Evanston enacted the ordinance to prevent the use of the property as a bus facility so that the property would remain on the city tax rolls; RTA and PACE had a legitimate claim of entitlement to use the property as a bus facility; Evanston’s intentional acts were conducted under the color of State law which authorized it to zone and classify uses; Evanston had a duty not to deprive RTA and PACE of the right to use the property as a bus facility; Evanston’s actions directly and proximately caused RTA’s and PACE’s deprivation of their right to use the property as a bus facility; RTA and PACE suffered substantial damages as a result; and Evanston’s actions violated RTA’s and PACE’s right to substantive due process preserved under the Civil Rights Act.

RTA and PACE alleged in count X that: Evanston enacted the ordinance to prevent the use of the property as a bus facility so that the property would remain on the city tax rolls; Evanston’s intentional acts were conducted under the color of State law which authorized it to zone and classify uses; Evanston had the duty to treat RTA and PACE similarly and without unreasonable distinction from others similarly situated in the M-4 districts; Evanston’s actions directly and proximately caused RTA’s and PACE’s deprivation of their right to equal protection; RTA and PACE suffered damage as a result; and Evanston’s actions violated RTA’s and PACE’s right to equal protection under the Civil Rights Act.

RTA and PACE alleged in count XI that: Evanston denied PACE a special use permit to prevent the use of the property as a bus facility so that the property would remain on the city tax rolls; Evanston’s intentional acts were conducted under the color of State law which authorized it to zone and classify; Evanston had a duty to treat RTA and PACE similarly and without unreasonable distinction from others similarly situated in the M-4 district as well as from others operating similar facilities in Evanston; Evanston’s actions directly and proximately caused RTA’s and PACE’s deprivation of their right to equal protection; RTA and PACE suffered damage as a result; and Evanston’s actions violated RTA’s and PACE’s right to equal protection under the Civil Rights Act.

RTA and PACE moved for summary judgment on count I of the second amended counterclaim on the basis that as regional agencies they were not subject to Evanston’s zoning ordinances. Attached to the motion was the affidavit of the head of the PACE operations department, who swore that the RTA was a regional governmental body created under and acting pursuant to the. Illinois Regional Transportation Authority Act (RTA Act) (see Ill. Rev. Stat. 1987, ch. 1112/3, par. 701.01 et seq.) and that RTA oversaw and provided public transportation in Cook, Kane, Du Page, Will, Lake and McHenry Counties and in hundreds of municipalities. She also swore that PACE was a regional governmental body created by and acting pursuant to the RTA Act which provided bus transportation on behalf of the RTA in these same counties. She also swore that the property purchased by PACE was located in the M-4 zoning classification, which was Evanston’s heaviest manufacturing classification, and that PACE and RTA had been prevented from using the property for its intended use by the amendment to the zoning ordinance.

RTA and PACE moved for leave to amend the second amended counterclaim by deleting reference to Nortran. They argued that Nortran would not necessarily be a user of the bus facility, that Nortran had no ownership or other interest in the property, and that Nortran’s contract with PACE extended only until December 1989 at which time PACE could choose to provide bus service itself or to purchase service from a different transportation agency. RTA and PACE argued that, therefore, any reference to Nortran was superfluous and that Nortran was not a necessary party.

The trial court granted the motion to amend the second amended counterclaim to delete references to Nortran, dismissed with prejudice counts V through XI, granted defendants’ motion for summary judgment on count I, dismissed count II "without prejudice, and denied the motion to dismiss counts I, III and IV. With respect to the rulings on the dismissal of counts V through XI and the granting of summary judgment on count I, Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) language was included in the order.

Evanston appeals from the order granting summary judgment on count I in RTA’s and PACE’s favor, and argues that RTA and PACE were subject to Evanston’s zoning ordinance because zoning and land use planning are within its home rule powers. It also argues that if the legislature intended to give a regional authority immunity from local zoning restrictions, then a specific statutory exemption or immunity had to be provided and that no such exemption was provided in the RTA Act.

Prior to the adoption of home rule in the Illinois Constitution of 1970, a municipal corporation could only exercise those powers granted by the legislature, incident to those granted powers, or essential to the accomplishment of the purposes of the corporation. (Marshall Field & Co. v. Village of South Barrington (1981), 92 Ill. App. 3d 360, 362, 415 N.E.2d 1277.) Legislative grants of authority by the State to local government were to be strictly construed. Marshall Field, 92 Ill. App. 3d at 362.

The Illinois Constitution of 1970 provides that any municipality of over 25,000 population or any county with an elected chief executive officer is a home rule unit. (Ill. Const. 1970, art. VII, §6(a).) Except as limited in the Illinois Constitution, a home rule unit may “exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt.” (Ill. Const. 1970, art. VII, §6(a).) Counties and municipalities which are not home rule units only have the powers granted to them by law and certain enumerated powers. Ill. Const. 1970, art. VII, §7.

The Illinois Constitution of 1970 further provides that the General Assembly may deny or limit any power or function of a home rule unit not exercised or performed by the State (with two exceptions) by a law approved by three-fifths of the members of each house. (Ill. Const. 1970, art. VII, §6(g).) The General Assembly also has the power to provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit (other than particular exceptions). (Ill. Const. 1970, art. VII, §6(h).) Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly does not limit the concurrent exercise or specifically declare the State’s exercise to be exclusive. (Ill. Const. 1970, art. VII, §6(i).) Powers and functions of home rule units are to be construed liberally. Ill. Const. 1970, art. VII, §6(m).

In City of Des Plaines v. Metropolitan Sanitary District of Greater Chicago (1971), 48 Ill. 2d 11, 268 N.E.2d 428 (Des Plaines I), relied upon by RTA and PACE in their argument that they are not subject to Evanston’s zoning, the sanitary district purchased land in Des Plaines upon which to construct a water reclamation plant. The sanitary district was comprised of seven local governmental units. The site was not zoned for this proposed use, and the sanitary district did not apply for a zoning variation. The issue was whether the city’s zoning ordinance applied to the sanitary district’s statutory power of eminent domain. The court held that the sanitary district’s taking of property pursuant to statutory power was not subject to the city’s zoning restrictions and that to so subject the condemnation power would relegate the sanitary district’s authority to that of a private land owner and would frustrate the statutory purpose. (Des Plaines, 48 Ill. 2d at 14.) The effect of a municipality’s home rule status upon its ability to subject a regional facility to its zoning laws was not an issue.

Des Plaines subsequently filed an action which sought substantially the same relief as its original complaint, i.e., a declaratory judgment that its zoning ordinance applied to the sanitary district’s property. ()City of Des Plaines v. Metropolitan Sanitary District of Greater Chicago (1974), 59 Ill. 2d 29, 319 N.E.2d 9 (Des Plaines II).) Unlike Des Plaines I, the city now alleged that it was a home rule municipality. The court held that res judicata applied to bar the second cause of action because the same cause, issues, parties, and relief as in the original cause of action were involved. (Des Plaines, 59 Ill. 2d at 31-32.) The court stated in the context of a discussion of the applicability of res judicata that the fact that the city’s power to enact a zoning ordinance now stemmed from the Constitution rather than from a grant of authority by the General Assembly was irrelevant. (Des Plaines, 59 Ill. 2d at 31.) The effect of a municipality’s home rule status upon its ability to subject a regional facility to its zoning laws was not directly addressed.

In a third Des Plaines case, the city sought to enjoin the sanitary district from constructing a sewage treatment plant within the city unless the sanitary district obtained a city permit and complied with a city health ordinance. (Metropolitan Sanitary District of Greater Chicago v. City of Des Plaines (1976), 63 Ill. 2d 256, 347 N.E.2d 716 (Des Plaines III).) The sanitary district had already obtained a permit from the Illinois Environmental Protection Agency (Illinois EPA) for the sewage treatment plant and it refused to also apply for a city permit. The sanitary district argued that environmental regulation of sewage treatment plants was a statewide concern, did not pertain to the government and affairs of a home rule unit and, alternatively, that environmental regulation was preempted by the Illinois Environmental Protection Act.

Des Plaines III held that the application of the city ordinance to a regional sewage treatment plant was not within the grant of home rule power. (Des Plaines, 63 Ill. 2d at 260.) The court noted that the plant would serve six other municipalities which were either home rule units or eligible to become home rule units. (Des Plaines, 63 Ill. 2d at 260-61.) The court stated that its “fundamental difficulty” was that to permit a regional district to be regulated by a part of that region was incompatible with the sanitary district’s purpose. Des Plaines, 63 Ill. 2d at 261.

Des Plaines I was held to be dispositive in People ex rel. Scott v. North Shore Sanitary District (1971), 132 Ill. App. 2d 854, 857-58, 270 N.E.2d 133, which held that a sanitary district was not required to obtain from a city a special use permit for expansion of its sewage treatment facilities. Village of Swansea v. County of St. Clair (1977), 45 Ill. App. 3d 184, 187, 359 N.E.2d 866, held that to require the county, which was statutorily mandated to carry out the terms of a State animal control act, to comply with municipal zoning ordinance would permit municipalities to frustrate the statutory program. (Swansea, 45 Ill. App. 3d at 187.) But the issue of home rule power was not discussed in Scott or in Swansea. It was held in City of Highland Park v. County of Cook (1975), 37 Ill. App. 3d 15, 26, 344 N.E.2d 665, that it was not within a city’s home rule power to enact an ordinance requiring city approval for construction of a county road.

A privately owned garbage disposal site which had a State permit was held subject to a home rule county’s zoning ordinance in Carlson v. Briceland (1978), 61 Ill. App. 3d 247, 252, 377 N.E.2d 1138, because the zoning and regulation of garbage disposal pertained to a home rule unit’s local affairs. The court noted that pollution from the site would be localized, that no local municipality within the county was attempting to regulate the county as in Des Plaines III, that the site was within the home rule unit’s boundaries, and that there was at most a negligible extraterritorial effect. Carlson, 61 Ill. App. 3d at 251.

The supreme court similarly held in County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 517, 389 N.E.2d 553, that a privately owned landfill with an Illinois EPA permit had to conform to the zoning ordinance of the home rule county in which it was located. Although the landfill was to be used by surrounding communities, it was not the case of a regional governmental district seeking to create a facility to serve a specific region with a part of that region attempting to regulate the facility. (Sexton, 75 Ill. 2d at 510.) Regulation of sanitary landfills was within the county’s home rule power. Sexton, 75 Ill. 2d at 511.

In Wilmette Park District v. Village of Wilmette (1986), 112 Ill. 2d 6, 13-15, 490 N.E.2d 1282, the court held that a park district in exercising its statutory authority over the operation of a park located within a village was not exempt from the village’s zoning ordinances and that land-use planning was within the village’s home rule powers.

We hold that under Des Plaines III, the application of the Evanston zoning ordinance to the regional bus facility was not within the grant of home rule power. A similar incompatibility exists in part of a region regulating a bus facility which is to serve a region and is operated by a regional governmental authority. The trial court properly granted summary judgment in favor of RTA and PACE on count I.

Evanston also appeals from the granting of the motion to amend the second amended counterclaim to delete references to Nortran. Evanston argues that Nortran was a necessary party. But an order permitting the amendment of a pleading is not a final order which finally determines the parties’ rights regarding issues so that, if affirmed, the court would only have to proceed to execution of the judgment. (See Gutenkauf v. Gutenkauf (1979), 69 Ill. App. 3d 871, 873, 387 N.E.2d 918 (order granting motion to dismiss and permitting plaintiff to file an amended complaint was not final).) An order which leaves a cause still pending and undecided is not a final order. (Gutenkauf, 69 Ill. App. 3d at 873.) This court therefore has no jurisdiction over the issue whether the trial court erred in permitting the amendment of the second amended counterclaim because some of the counts were still pending.

RTA and PACE appeal from the trial court’s dismissal of counts Y through XI of their second amended counterclaim which asserted constitutional claims against Evanston. They assert that the trial court erred in holding that they had no constitutional rights. The issues presented are: (1) is a political subdivision of the State such as the RTA and PACE protected under the Illinois and United States constitutions from the taking of its property by another political subdivision; and (2) does such a political subdivision have the rights to due process and equal protection under the Illinois and United States constitutions?

Evanston first argues that the taking clauses do not apply because RTA’s and PACE’s property was not private. The RTA Act provides that the RTA is “a unit of local government, body politic, political subdivision and municipal corporation.” (Ill. Rev. Stat. 1987, ch. 111⅔, par. 701.04), and PACE was allegedly the suburban bus division of the RTA. The fifth amendment states in part that “nor shall private property be taken for public use, without justification.” (U.S. Const., amend. V.) Section 15 of article I of the Illinois Constitution of 1970 similarly provides that “[pjrivate property shall not be taken or damaged for public use without just compensation as provided by law.” Ill. Const. 1970, art. I, §15.

It has been held that the reference to private property in the fifth amendment encompassed the property of State and local governments when condemned by the United States (United States v. 50 Acres of Land (1984), 469 U.S. 24, 31, 83 L. Ed. 2d 376, 383, 105 S. Ct. 451, 455-56), but there is no authority that private property within the meaning of the fifth amendment includes the public property of a political subdivision taken by another political subdivision of the same State. RTA’s and PACE’s property was public property that was not protected by the United States Constitution’s just compensation clause.

A school district’s constitutional challenge to a State act which permitted the detachment of a school district’s property as a taking was denied on the basis that the property of a public municipal corporation was subject to the will of the legislature in People ex rel. Taylor v. Camargo Community Consolidated School District No. 158 (1924), 313 Ill. 321, 324-25, 145 N.E. 154. RTA’s and PACE’s property was not subject to Evanston’s control, but we hold that it was nevertheless public property that was not protected by the Illinois Constitution’s just compensation clause.

RTA and PACE next argue that a municipal corporation is a person within the meaning of the fourteenth amendment and has the rights to substantive due process and equal protection. RTA and PACE are challenging another subdivision’s exercise of its zoning powers and the applicability of its zoning ordinance; they are not challenging a State statute or other State action. Most of the cases cited by Evanston are therefore distinguishable because they hold that a political subdivision of a State may not challenge the validity of a State statute under the fourteenth amendment whether the defendant is the State itself or another of the State’s political subdivisions. (City of New Orleans v. New Orleans Water Works Co. (1891), 142 U.S. 79, 91, 35 L. Ed. 943, 947, 12 S. Ct. 142, 147; Village of Riverwoods v. Department of Transportation (1979), 77 Ill. 2d 130, 136, 395 N.E.2d 555; Meador v. City of Salem (1972), 51 Ill. 2d 572, 578, 284 N.E.2d 266; Supervisors of County of Boone v. Village of Rainbow Gardens (1958), 14 Ill. 2d 504, 507-08, 153 N.E.2d 16; Village of Arlington Heights v. Regional Transportation Authority (7th Cir. 1981), 653 E2d 1149, 1151-53; Akron Board of Education v. State Board of Education (6th Cir. 1974), 490 F.2d 1285, 1297-98 (concurring and dissenting opinion).) See also City of South Lake Tahoe v. California Tahoe Regional Planning Agency (9th Cir. 1980), 625 F.2d 231, 233 (city cannot challenge regulations of State political subdivision).

The reasoning behind these decisions, derived primarily from early United States Supreme Court cases, is that a political subdivision of the State has no rights under the United States Constitution which it may invoke in opposition to its creator, the State. See City of Newark v. New Jersey (1923), 262 U.S. 192, 196, 67 L. Ed. 943, 946, 43 S. Ct. 539, 540 (the regulation of municipalities is within the domain of the State so that city could not invoke the protection of the fourteenth amendment against the State); City of Trenton v. New Jersey (1923), 262 U.S. 182, 187, 192, 67 L. Ed. 937, 941, 943, 43 S. Ct. 534, 537, 538 (municipal corporation is merely a department of the State which may withhold, grant or withdraw powers and privileges as it sees fit so that city could not attack State act as violative of due process and fifth amendment).

RTA and PACE argue that the need to protect the sovereignty of the State from the subdivisions it created is not relevant here because the RTA and PACE are not creatures of the City of Evanston and do not derive their powers from it. But even though RTA and PACE are not the political subdivisions of Evanston, political subdivisions of States are not persons protected by the United States Constitution. (See Pennsylvania v. New Jersey (1976), 426 U.S. 660, 665, 49 L. Ed. 2d 124, 129, 96 S. Ct. 2333, 2335 (people and not States are protected by the privilege and immunities and the equal protection clauses); South Carolina v. Katzenbach (1966), 383 U.S. 301, 323-24, 15 L. Ed. 2d 769, 784, 86 S. Ct. 803, 816 (States are not protected by fifth amendment’s due process clause); Commonwealth Edison Co. v. Department of Local Government Affairs (1984), 126 Ill. App. 3d 277, 291, 466 N.E.2d 1351 (municipal governmental entities are not protected by fourteenth amendment’s due process and equal protection clauses); Franciscan Hospital v. Town of Canoe Creek (1979), 79 Ill. App. 3d 490, 496-97, 398 N.E.2d 413 (municipal corporations are not protected by fourteenth amendment); People v. Valentine (1977), 50 Ill. App. 3d 447, 452, 365 N.E.2d 1082 (municipal governmental entities are not protected by fourteenth amendment); South Macomb Disposal Authority v. Township of Washington (6th Cir. 1986), 790 F.2d 500, 505 (fourteenth amendment does not impose restrictions upon one political subdivision vis-a-vis another political subdivision); Town of Ball v. Rapides Parish Police Jury (5th Cir. 1984), 746 F.2d 1049, 1051 n.l (a municipal corporation cannot invoke the fourteenth amendment against another subdivision of the State); El Paso County Water Improvement District No. 1 v. International Boundary & Water Comm’n (W.D. Texas 1988), 710 F. Supp. 121, 123-24 (political subdivision of State could not make challenge that Federal agency deprived it of its property without due process); City of Sault Ste. Marie v. Andrus (D.C. 1980), 532 F. Supp. 157, 167-68 (city is not protected by fifth amendment).

To the contrary is Ohio Student Loan Comm’n v. Cavazos (S.D. Ohio 1988), 709 F. Supp. 1411, 1422, which held that a State student loan commission was not the alter ego of the State and therefore was a person under the fifth amendment. But this holding may have been dicta because the court invalidated the implementation of a Federal statute as unconstitutional under another constitutional prohibition. In addition, the case was reversed, although the reviewing court did not decide whether the loan commission was a person. Ohio Student Loan Comm’n v. Cavazos (6th Cir. 1990), 900 F.2d 894. See also In re Real Estate Title & Settlement Services Antitrust Litigation (3d Cir. 1989), 869 F.2d 760, 765 n.3 (school boards were persons within the meaning of the fifth amendment’s due process clause because they were not the alter ego of the State); Township of River Vale v. Town of Orangetown (2nd Cir. 1968), 403 F.2d 684, 686 (court held that a municipal corporation which challenged the action of a town of a different State was a person within the meaning of the fourteenth amendment, but Aguayo v. Richardson (2d Cir. 1973), 473 F.2d 1090, 1098-1101, may have implicitly overruled this holding because it held that a city could not challenge State action and statutes under the equal protection and due process clauses).

The reasoning that political subdivisions have only those rights which are conferred on them by the State applies logically to challenges brought under the United States Constitution by political subdivisions not only to State statutes or other State action but to the action of other political subdivisions. (See South Macomb Disposal Authority v. Township of Washington (6th Cir. 1986), 790 F.2d 500, 505 (fourteenth amendment does not impose restrictions upon one political subdivision vis-a-vis another political subdivision).) We therefore hold that the RTA and PACE did not have fourteenth amendment rights.

RTA and PACE argue that municipalities have been permitted to challenge the zoning of another municipality under the Illinois Constitution of 1970, but the cases they cited concerned a municipality’s standing to challenge zoning and did not determine whether political subdivisions had constitutional rights. Village of Barrington Hills v. Village of Hoffman Estates (1980), 81 Ill. 2d 392, 410 N.E.2d 37; City of Hickory Hills v. Village of Bridgeview (1977), 67 Ill. 2d 399, 367 N.E.2d 1305; Village of Northbrook v. County of Cook (1984), 126 Ill. App. 3d 145, 466 N.E.2d 1215; City of West Chicago v. County of Du Page (1979), 67 Ill. App. 3d 924, 385 N.E.2d 826; Forestview Homeowners Association v. County of Cook (1974), 18 Ill. App. 3d 230, 309 N.E.2d 763.

It has been held that a municipal corporation cannot make due process claims under the Illinois Constitution of 1970 against action of the State government because of the State’s legislative supremacy. Village of Riverwoods v. Department of Transportation (1979), 77 Ill. 2d 130, 136, 395 N.E.2d 555; Meador v. City of Salem (1972), 51 Ill. 2d 572, 578, 284 N.E.2d 266; Supervisors of County of Boone v. Village of Rainbow Gardens (1958), 14 Ill. 2d 504, 507, 153 N.E.2d 16; People v. Valentine (1977), 50 Ill. App. 3d 447, 452-53, 365 N.E.2d 1082; Village of Arlington Heights v. Regional Transportation Authority (7th Cir. 1981), 653 E2d 1149, 1151-53 (also rejected was an argument that home rule units were no longer creatures of the State legislature).

It has also been held that the Illinois Constitution’s due process clause does not apply to municipalities because constitutions are contracts between the sovereign and its people and because due process rights were specifically guaranteed to the individual and not to the sovereign or the municipality which is its subsidiary. (Village of North Pekin v. Riviere (1979), 73 Ill. App. 3d 1032, 1033, 392 N.E.2d 439.) We adopt this reasoning to hold that the RTA and PACE lacked rights to substantive due process and equal protection under the Illinois Constitution of 1970.

The judgment of the circuit court is affirmed.

Affirmed.

RIZZI and FREEMAN, JJ., concur.


author: JUSTICE FREEMAN

text:
    LAURENCE N. SMITH, Plaintiff-Appellant, v. THE DEPARTMENT OF PROFESSIONAL REGULATION, Defendant-Appellee.
    First District (3rd Division)
    No. 1—89—1926
    Opinion filed August 15, 1990.

      Fioretti & Des Jardins, Ltd., of Chicago (Robert W. Fioretti, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Ralanda Webb, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Laurence N. Smith, appeals the affirmance of the administrative decision of defendant, Illinois Department of Professional Regulation, to suspend him from the practice of chiropractic medicine for an indefinite period.

Defendant’s amended administrative complaint against plaintiff charged him with several violations of section 16 of the Medical Practice Act (Act) (Ill. Rev. Stat. 1983, ch. Ill, par. 4401 et seq.). Specifically, it charged that, in the course of treating four different patients in 1983, plaintiff engaged in conduct which constituted: (a) dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public; (b) willfully making and filing false records and reports in his practice; and (c) gross, willful and continued overcharging for professional services, including but not limited to the filing of false statements for collection of fees for services not rendered. Ill. Rev. Stat. 1983, ch. Ill, pars. 4433(5), (21), (24).

After an evidentiary hearing, the administrative law judge (ALJ) who conducted .the hearing issued findings of fact, conclusions of law and a recommendation that plaintiff’s license be suspended. Subsequently, defendant’s Medical Disciplinary Board (Board) found that, based upon the evidence, plaintiff knew, at the time of their submission, that the bills he submitted to the insurers of the four patients whose treatment formed the basis of the complaint against him contained charges for services not rendered. Consequently, it recommended, and defendant’s Director ordered, that plaintiff’s license be suspended for an indefinite period.

I

On appeal, plaintiff first contends that defendant’s decision was against the manifest weight of the evidence. Specifically, plaintiff challenges four findings of fact by the ALJ which, along with his other factual findings and conclusions of law, were adopted by the Board: (a) that he engaged in a “pattern of bill padding”; (b) that the four patients whose treatment was at issue were more credible than plaintiff’s records on the issues of what services plaintiff rendered to them and when he rendered them; (c) that plaintiff performed medically unnecessary procedures on the patients; and (d) that plaintiff submitted inaccurate and misleading bills to the patients’ insurers.

A

In challenging the ALJ’s finding that a “pattern of bill padding” was evident from plaintiff’s patient records and the testimony, plaintiff notes or argues that: (1) in treating the four patients whose treatment was at issue, pursuant to his practice of not requesting co-payments from them, he merely accepted what their insurers paid him, even if that amount was less than the entire bill; (2) Dr. Guzzo, defendant’s expert, stated that the practice of not receiving co-payments from patients with insurance and merely accepting what their insurers paid on their chiropractic bills did not constitute fraud and that the market determined the propriety of charges for chiropractic services; (3) “the uncontroverted testimony” was that he charged all of his patients the same fees, based solely on the services rendered, whether or not they participated in his “no co-payments” program; (4) there was simply no record evidence to support a conclusion that his “no co-payments” practice was improper or fraudulent; and (5) there was insufficient evidence as to what the proper fees for the four patients involved should have been so as to allow a finding that the fees charged to their insurers were grossly excessive.

We believe that the foregoing evidence noted and arguments made by plaintiff relate to “bill padding” in the sense of charging higher than customary fees for services rendered. However, in so construing the term “bill padding” as used by the ALJ and, implicitly, the term “overcharging” as used in defendant’s amended complaint, plaintiff has ignored that the overcharging which the complaint alleged against him specifically included overcharging in the sense of charging for services not actually rendered. As such, the fact that the evidence may have been insufficient to support a finding that plaintiff had engaged in overcharging by charging higher than customary fees for his services is of no avail to plaintiff in demonstrating that he had not overcharged in the specific sense alleged in the amended complaint.

For this same reason, we find unavailing plaintiff’s further argument that the ALJ’s finding that his charges “were too high” did not satisfy the statutory requirement of a finding that they constituted gross, willful and continuous overcharging. This argument too reveals that plaintiff has myopically focused upon the amount of the fees he charged for discrete services rather than his alleged charging of fees for services not rendered. Given the abundant record evidence that plaintiff repeatedly charged for services not rendered and the ALJ’s references to that evidence in his factual findings, the finding that plaintiff’s charges were “too high” was merely incidental to the findings which did satisfy the statutory requirement of gross, willful and continuous overcharging. In this regard, we believe that “overcharging” as used in the Medical Practice Act, like the phrase “bill padding,” may mean charging too much for services rendered and/or charging for services not actually rendered. It is clear from the allegations of defendant’s amended complaint that it was “overcharging” in the latter sense which was mainly at issue in this case. The evidence adduced by defendant abundantly proved those allegations.

B

Regarding the second challenged finding of fact, plaintiff argues, essentially, that his business records were entitled to greater weight than the testimony of the four patients whose treatment was at issue, with respect to the issue of what services he actually rendered to them. Specifically, with respect to the conflict between his records and the testimony of one of the patients, Thomas Cihlar, as to the dates of Cihlar’s visits to plaintiff, plaintiff asserts that Cihlar’s testimony was not credible given his uncertainty about the months in 1983 in which he was treated by plaintiff. We cannot agree.

It is for the finder of fact to evaluate all evidence, including the testimony and medical records produced; to judge the credibility of witnesses; to resolve conflicts in medical evidence; and to draw reasonable inferences and conclusions from the facts. (See Millis v. Industrial Comm’n (1982), 89 Ill. 2d 444, 433 N.E.2d 662.) Moreover, there is always a possibility that business records are in error, and they deserve no special presumption of credibility as compared to the opposing testimony of a witness. (Nowakowski v. Hoppe Tire Co. (1976), 39 Ill. App. 3d 155, 158, 349 N.E.2d 578.) In this latter regard, the fact that plaintiff’s records were positively shown to contain material errors and omissions regarding the treatment and services rendered the four patients provided even more reason to find them less credible than the testimony of those patients. The ALJ’s finding of the testimony of the four patients as more credible than plaintiff’s business records was not against the manifest weight of the evidence.

In the same vein, plaintiff further asserted that the ALJ erred in denying his request for subpoenas for records of other physicians who had treated the four patients. Plaintiff intended to use the records of the other physicians to impeach the four patients’ recollection of the services which he rendered to them. This argument is unavailing to plaintiff. Preliminarily, we note that plaintiff fails to cite any authority whatsoever to support his right to such subpoenas. As such, we may consider this argument waived. (In re Marriage of Talmadge (1989), 179 Ill. App. 3d 806, 534 N.E.2d 1356.) Equally as important, however, is plaintiff’s failure to address his right to such records in the face of the physician-patient privilege which, given his asserted intent to have questioned the four patients on “the specifics of medical care” rendered by other practitioners, might very well apply to such records. The denial of the requested subpoenas was not error.

C

With respect to the third finding of fact which plaintiff challenges, he argues that the evidence did not reveal that he violated the Act by performing medically unnecessary procedures. Plaintiff grounds this argument on the inconsistency between the ALJ’s lengthy discussion, in his findings of fact, of the allegedly unnecessary X rays and blood tests performed on some of the four patients, on one hand, and the ALJ’s conclusion, on the other, that this case did not involve plaintiff’s failure to use or apply his skills in compliance with the standards of his profession. As further evidence of this inconsistency, plaintiff also cites the ALJ’s statement at the conclusion of the evidentiary hearing that the issue of unnecessary X rays was the only substantive issue concerning plaintiff’s professional practice, “meaning whether he was competently performing his duties as a treating practitioner.”

We find this argument unavailing. Plaintiff’s argument, in essence, seems to be that, in order to conclude that he violated the Act by performing unnecessary X rays and other tests, the ALJ also had to conclude that the performance of such procedures evidenced that plaintiff either did not possess or apply the skills of a competent practitioner. We must concede that the ALJ’s characterization of the issue of unnecessary X rays as the only issue concerning plaintiff’s competency lends credence to his argument. However, in finding the argument ultimately unpersuasive, we must note that the ALJ so characterized the issue of the unnecessary X rays only for the purpose of informing the Board as to the issues in plaintiff’s case. That is, the ALJ was not, in our view, making a binding pronouncement of the elements of proof of plaintiff’s violation of the Act by performing the unnecessary X rays. As such, the failure to find that plaintiff had either not possessed or applied the skill required of a competent practitioner did not preclude the ALJ from finding that the unnecessary procedures nonetheless constituted a violation of the Act.

The difference in the plaintiff’s view and our view on this question is akin to that between negligent and intentional conduct. That is, plaintiff asserts that, not having found negligence on his part, the ALJ could not find a violation of the Act. We, however, believe that, given the evidence before him, the ALJ must have ultimately based his finding of a violation of the Act in performing unnecessary procedures on intentional, not negligent, conduct by plaintiff. Viewed in that light, the ALJ’s finding was not against the manifest weight of the evidence.

D

With respect to the finding that he submitted false and misleading bills to the four patients’ insurers, plaintiff argues, essentially, that regardless of the fact that he designated both the procedure of hands-on manipulation and the procedure of intersegmental traction as “manipulation” on his bills to the insurers, he provided all of such services for which he billed them.

Preliminarily, we disagree with plaintiff that “nothing in the record demonstrates” that he billed for manipulation on dates when he did not perform either hands-on manipulation or intersegmental traction. We find the record in this case rife with evidence that, indeed, plaintiff billed for services, including but not limited to manipulations (whether hands-on or mobilizing — as plaintiff refers to inter-segmental traction) supposedly rendered on dates when, in fact, he had not provided any such services to the four patients. Defendant thus acted properly in choosing to believe that evidence rather than plaintiff’s contradictory evidence.

Moreover, we find without merit plaintiff’s attempt to avoid the expert testimony that in chiropractic the term “manipulation” is not used to designate other than hands-on manipulation. There is abundant record evidence to support the conclusion that the standards, applicable to chiropractors in the Chicagoland metropolitan area in 1983, required the use of the term “manipulation” to refer only to hands-on or manual manipulation of a patient’s spine. The standards further called for billing as “manipulations” only such manipulations performed on a patient. As such, to the extent that plaintiff designated intersegmental traction as “manipulation” in billing the insurers of the four patients, defendant properly found that he knowingly misled the insurers and filed false records and reports to support his requests for payments.

II

Plaintiff next contends that the ALJ applied an incorrect standard in denying his motion for directed verdict. Specifically, plaintiff asserts that, in concluding that “there’s a way that the facts in the record could now be read or found to meet [the] clear and convincing evidence standard,” the ALJ applied a less stringent standard than that of clear and convincing evidence, which defendant was required to meet to make out a prima facie case against plaintiff (Smith v. Department of Registration & Education (1952), 412 Ill. 332, 106 N.E.2d 722; Cicmanec v. Department of Registration & Education (1989), 182 Ill. App. 3d 710, 538 N.E.2d 1166). We cannot agree.

Preliminarily, we agree with defendant that, by failing to raise this issue before the ALJ or Board, plaintiff has waived it on appeal to this court. (Leffler v. Browning (1958), 14 Ill. 2d 225, 151 N.E.2d 342; A.R. Barnes & Co. v. Department of Revenue (1988), 173 Ill. App. 3d 826, 527 N.E.2d 1048.) The fact that the issue of the standard of proof which the State was required to meet implicates plaintiffs due process rights (see Board of Education v. State Board of Education (1986), 113 Ill. 2d 173, 497 N.E.2d 984) does not require a contrary result. The rule of waiver applies equally to issues involving constitutional due process rights. (See Commonwealth Edison Co. v. Department of Local Government Affairs (1984), 126 Ill. App. 3d 277, 466 N.E.2d 1351; Quinn v. Department of Registration & Education (1971), 132 Ill. App. 2d 925, 271 N.E.2d 11.) Moreover, plaintiff’s argument that he preserved the error for appeal by raising it in the circuit court is meritless. The waiver rule specifically requires first raising an issue before the administrative tribunal rendering a decision from which an appeal is taken to the courts. (Leffler, 14 Ill. 2d 225, 151 N.E.2d 342; A.R. Barnes, 173 Ill. App. 3d 826, 527 N.E.2d 1048.) Given that, in administrative review cases, including those involving defendant, the circuit courts act as the first-tier courts of review (Ill. Rev. Stat. 1989, ch. 110, pars. 3—104, 3—110; Ill. Rev. Stat. 1983, ch. Ill, par. 4447), the reason and logic behind that requirement are clear.

Assuming, arguendo, that plaintiff did not waive the instant issue, we find it substantively without merit. In arguing that the ALJ applied a less stringent standard than clear and convincing evidence, by allowing that “there’s a way that the facts in the record could now be read or found to meet [the] clear and convincing evidence standard,” we believe that plaintiff has misconstrued the meaning of that standard. That is, we do not believe, as plaintiff implies, that to meet the clear and convincing evidence standard, defendant was required to adduce evidence from which only one conclusion, viz., plaintiff’s guilt of the charges against him, could conceivably result. As such, the ALJ’s implicit recognition, in the language quoted, that more than one conclusion was possible from defendant’s evidence did not amount to the application of a lesser standard against that evidence than “clear and convincing.” Prior construction of the meaning of the clear and convincing evidence standard buttresses our analysis.

Clear and convincing evidence or testimony has been defined, inter alia, as not synonymous with uncontradicted or unimpeached testimony nor crystal clear and perfect. (People v. Monk (1988), 174 Ill. App. 3d 528, 528 N.E.2d 1063.) This definition, we believe, reveals that clear and convincing evidence is not, as plaintiff implies, such evidence as from which only one conclusion can logically flow. Moreover, the fact that it may be such evidence from which the trier of fact may have to draw inferences and, thus, as the ALJ recognized in this case, from which it might conceivably draw differing inferences is established in In re Browning (1961), 23 Ill. 2d 483, 179 N.E.2d 14, Bilyeu v. Plant (1966), 75 Ill. App. 2d 109, 220 N.E.2d 513, and Kimbrough v. Parker (1951), 344 Ill. App. 483, 101 N.E.2d 617.

In Browning, a disbarment action, the court stated:

“These inferences, which the respondent would have us draw, are not the only ones that flow from this record, and the question to be determined is whether there are other inferences, so natural and probable as to amount to clear and convincing proof of misconduct, which support the finding of the Commissioners.” (Browning, 23 Ill. 2d at 494.)

Upon reviewing the evidence and the applicable law, the trial court affirmed the disbarment order.

Similarly in Bilyeu, the court, after noting that a resulting trust must be proven by clear, convincing, unequivocal and unmistakable evidence, reasoned that “unless the trial judge could find that the plaintiffs’ evidence was so clear, convincing and unequivocal as to enable him to draw the inferences and reach the conclusions necessary to a finding that there was a resulting trust, defendant’s motion for judgment was properly allowed.” (Emphasis added.) Bilyeu, 75 Ill. App. 2d at 119.

Finally, in Kimbrough, a fraud case, the court, after reviewing the testimony, stated:

“We think this testimony, and the justifiable inference that defendants did not intend to do what was represented, is sufficient for our conclusion that there was evidence which tended to show clearly and convincingly that defendants made false representations upon which the [plaintiffs] relied.” Kimbrough, 344 Ill. App. at 488.

The foregoing cases, especially Browning, amply reveal that the fact that inferences may have to be drawn from evidence and that, as is inherent in the nature of inferential cogitation, they may be differing does not preclude the evidence from which they are drawn from being clear and convincing. We believe that the statement of the ALJ which plaintiff cites as evidencing his application of a lesser standard than that simply recognizes the foregoing fact. Plaintiff’s contention of prejudice is meritless.

III

Plaintiff lastly contends that the participation of Dr. Lawrence Levin in an investigative interview conducted by defendant prior to the commencement of the administrative hearing and in the administrative hearing as an advisor to the Board was improper. Specifically, plaintiff argues that the doctor’s participation in the investigative interview gave rise to the possibility that his report to the Board contained evidence which he learned in that interview, contrary to the rule that an administrative decision be based strictly upon the evidence presented at the administrative hearing. Landenheim v. Union County Hospital District (1979), 76 Ill. App. 3d 90, 394 N.E.2d 770.

We find plaintiff’s contentions without merit. Preliminarily, we find that plaintiff waived any error in Dr. Levin’s participation in the investigatory and adjudicatory phases of plaintiff’s case for the same reason that he waived any alleged error in the ALJ’s formulation of defendant’s burden of proof. Moreover, as with that alleged error, we find the instant contentions of error without substance.

With respect to any conflict of interest under which Dr. Levin may have been laboring, as plaintiff himself notes, Landenheim establishes that the combination of the investigative and adjudicative functions does not violate due process where no actual personal bias resulting therefrom is demonstrated in the record. (Landenheim, 76 Ill. App. 3d at 95.) Given plaintiff’s burden of proof on the issue of personal bias, we find his mere assertions that any use by Dr. Levin of any information gathered during the investigative interview “would be improper” insufficient to demonstrate the doctor’s actual personal bias.

Lastly, plaintiff contends that, without regard to any conflict of interest, Dr. Levin’s appointment as an advisor to the Board was improper because defendant’s own rules do not grant it authority to appoint advisors.

Beyond finding that plaintiff waived this issue as well, we believe that defendant’s power and authority to make such an appointment is implied in its statutorily granted powers. It is well established that express, legislative grants of powers or duties to administrative agencies include the power to do all that is reasonably necessary to execute those powers or duties. (Lake County Board of Review v. Property Tax Appeal Board (1988), 119 Ill. 2d 419, 519 N.E.2d 459.) Moreover, administrative agencies are to be given wide latitude in determining what actions are “reasonably necessary,” and a court may not overturn an agency policy or action simply because the court considers the policy unwise or inappropriate. (Oak Liquors, Inc. v. Zagel (1980), 90 Ill. App. 3d 379, 413 N.E.2d 56.) Given plaintiff’s failure to cite any authority expressly prohibiting defendant’s appointment of advisors such as Dr. Levin, we will abide by the foregoing rules. For that same reason, we find inapposite Heavner v. Illinois Racing Board (1982), 103 Ill. App. 3d 1020, 432 N.E.2d 290, which merely holds that administrative agencies must strictly comply with their promulgated rules.

For all of the reasons stated herein, we affirm the judgment of the circuit court affirming defendant’s decision to suspend plaintiff’s chiropractic license.

Affirmed.

RIZZI and WHITE, JJ, concur.