author: PRESIDING JUSTICE CERDA

text:
    RON SASSER, Plaintiff-Appellant, v. ALFRED BENESCH AND COMPANY, Defendant-Appellee (The Illinois State Tollway Authority et al., Defendants).
    First District (3rd Division)
    No. 1 — 89—2402
    Opinion filed June 28,1991.
    Fritzshall & Gleson, of Chicago, for appellant.
    Hinshaw & Culbertson and Tribler & Orpett, P.C., both of Chicago, for appellee.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, Ron Sasser, appeals from the entry of summary judgment in favor of defendant, Alfred Benesch & Company (Benesch), in his Structural Work Act (Ill. Rev. Stat. 1989, ch. 48, par. 60 et seq.) (the Act) and negligence action. Plaintiff argues that the trial court erred in granting summary judgment because a factual issue existed as to whether Benesch was in charge of the work within the meaning of the Act and because a manual’s provision that disclaimed Benesch’s responsibility for safety at the jobsite was unenforceable.

Plaintiff alleged the following in count I of his complaint against defendants Benesch, Illinois State Tollway Authority (ISTA), and Chicago & North Western Transportation Railroad Company (C&NW). On or before November 2, 1987, defendants owned and/or were in charge of the erection, construction, repairs, alteration, removal, and/ or painting of a structure located at Crescent Boulevard Bridge in the Village of Lombard. Defendants participated in coordinating the work, designated various work methods, maintained and checked work progress, participated in the scheduling and the inspection of the work, and had the authority to stop the work. Plaintiff, who worked on the site as an employee of Walsh Construction Company, was injured as a result of a fall in the mud while carrying a concrete form. Defendants violated the Act by failing to place and operate a crane, material hoist, or other mechanical contrivance in a safe manner to transport the concrete form and to provide adequate protection for plaintiff.

Plaintiff alleged in count II that defendants were negligent.

Benesch’s answer admitted that it had employees on the construction site “at certain times” during the course of construction.

Benesch filed a motion for summary judgment in which it argued that it was a structural engineering firm retained by ISTA to observe the construction site for compliance with the plans and specifications, that it did not have the authority to direct the manner in which the work was done, and that it therefore was not liable under the Act, which required that a defendant had charge of the work.

Attached to the motion was a copy of the February 25, 1987, agreement between ISTA and Benesch covering construction inspection engineering services for roadway and bridge construction on the North-South Tollway. The work was to be performed according to the “Construction Section Engineer’s Manual, January 1987” (the manual). Benesch agreed that

“[it was] responsible for any and all injuries to persons and damages to property due to the activities of *** [Benesch], its associates, agents or employees, in connection with such services.”

The affidavit of John Marks was filed in support of the motion for summary judgment. He swore that: (1) he was Benesch’s project manager; (2) he was familiar with the services performed by Benesch for the project at issue; (3) Benesch’s representatives were on the site merely to observe for compliance with the plans and specifications; (4) no Benesch representative had authority to stop the work, issue change orders, or conduct progress meetings on the construction project; and (5) Benesch did not have authority to direct the manner in which plaintiff’s work should have been done, did not direct any of the work being done on the site, and did not supply, provide, repair, or direct the use of any equipment used in the construction.

Plaintiff filed as an exhibit to his response to the motion a copy of the manual which stated that it was to be part of the proposal and agreement for construction section engineer services. The manual defined “construction section engineer” as the engineer engaged by ISTA to observe the work to determine whether or not it was being performed and constructed in compliance with the contract. This definition was qualified by the statement:

“This does not in any way or sense mean that the Engineer, Section Engineer, or the Inspector is a guarantor of the Contractor’s work, is responsible for safety in, on, or about the job site, is in control of the safety or adequacy of any equipment, construction component, forms, scaffolding, falsework or other work aids, or is responsible for supervising The Work.”

The manual provided that the construction section engineer was to provide an organization of engineers and inspectors “to verify the completion of the constructed work in accordance with the Contract and which will assure that the Authority [ISTA] will be advised at all times of progress and job conditions.” The construction section engineer was to furnish all equipment and materials necessary to perform the on-site testing of materials and the other engineering services. The equipment was to include “[s]afety devices such as hard hats, safety vests, Mars’ lights and company vehicle identification signs.” As the authorized representative of ISTA, the construction section engineer was to protect ISTA’s interest by documenting and certifying that completed work complied with the contract requirements.

Among other duties, the construction section engineer was specifically responsible for: (1) effecting correction of errors, omissions, and oversights found in the plans and specifications; (2) identifying the ramifications of any unforeseen condition or situation arising on the project, establishing priorities for action, and making detailed recommendations to ISTA for such action; (3) monitoring construction progress with notification to ISTA of deviations from the schedule; (4) actively monitoring the safe and efficient movement of traffic through construction zones; (5) advising the contractor of conflicts with the contract plans; (6) anticipating, determining, and documenting the necessity for any field changes; (7) documenting all occurrences and proceedings relevant to the administration of the contract; and (8) recommending improvements to ISTA to aid the development of future projects.

The manual also provided that the construction section engineer had the authority to: (1) enforce plans and other contract requirements; (2) reject work that was of unacceptable quality or otherwise failed to meet the contract requirements; (3) notify the contractor to stop work in progress when continuation was likely to result in an unacceptable element of construction which would be difficult to correct; (4) direct contractor attention to those areas where effective coordination was necessary to achieve acceptable results but no responsibility or authority to direct the contractor’s operations or coordinate contractor activities; (5) recommend disbursal of payments to the contractor; (6) recommend approval of equipment, materials, and mix designs proposed by the contractor; (7) initiate and negotiate necessary changes to the contract; (8) notify the contractor to immediately correct any observed deficiencies in the management of traffic through construction zones; (9) approve any revised progress schedule(s) submitted by the contractor; and (10) advise ISTA of any circumstances which could affect the completion date.

The manual further specified that the construction section engineer was to “furnish continuous field inspection of the materials and workmanship at the job site” by, inter alia: (1) inspecting the contractor’s construction equipment to determine its compliance with the contract and its capability to perform the work; (2) reviewing and making recommendations to ISTA on contractor’s requests for approval of subcontractors; (3) inspecting all items of work, as specified in the contract, for compliance with the contract; (4) keeping daily records of the quantities involved; (5) determining the locations from which unsuitable material was to be removed; (6) inspecting and testing soils and all construction materials; (7) performing any field work required to construct items covered by extra work orders; (8) checking all pavement for thickness and surface tolerance as required by the specifications; (9) inspecting utility and railroad work; (10) providing periodic surveillance of maintenance of “Traffic items” to ensure compliance with contract requirements; (11) furnishing all testing equipment and supplies as listed in the manual and deemed necessary to perform the required testing; and (12) certifying the calibration of all equipment the contractor used that directly affected the quantity of a “respective pay item.”

The engineer was to keep a project diary containing a daily record of “all significant items relating to the project.” Notes were to be complete because of possible importance “in the decision of claims or the establishment of responsibilities for liabilities.” Items that were to be noted included the weather, directions given to the contractor, important discussions with the contractor, and the arrival and departure of major equipment.

John Marks, a Benesch civil engineer who became the project manager with staff supervisory responsibility, testified at his deposition to the following. Benesch wanted to have a representative on the site to observe the contractor’s work. There were an average of six to eight Benesch personnel at the site each day. Marks worked about 40 hours a week and normally from 7 a.m. to 3 p.m., but on some days he worked 10 or more hours. Benesch would bring to the contractor’s attention a condition that may not have met specifications (e.g., traffic lights had to be set a certain distance apart) and would ask the contractor to review it with the subcontractor. Benesch had no authority to alter the work and had the authority to stop work only if it did not comply with the specifications. But Benesch also could stop work because of the weather, e.g., if rain affected the finish of concrete. Marks did not believe that it was Benesch’s function to note dangerous occurrences.

The trial court granted Benesch’s motion for summary judgment and orally ruled that: (1) Benesch was not in charge of the work; (2) the “real authority” was retained by ISTA; and (3) the agreement provided that Benesch did not have responsibility for safety of the jobsite. The order stated that there was no just cause to delay enforcement or appeal.

Plaintiff argues that the trial court erred in granting Benesch’s motion for summary judgment because there was a factual question regarding Benesch’s control over plaintiff’s work. Plaintiff notes Benesch’s numerous duties that were delineated by the contracts. Benesch argues that it was not in charge of the work, its duties were limited to assuring ISTA that the work complied with the plans and specifications, it did not direct the work of plaintiff or of any other workers, and it did not have the authority to stop the work, to conduct progress meetings, or to issue change orders.

Section 9 of the Structural Work Act provides in part:

“Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure within the provisions of this Act, shall comply with all the terms thereof ***.” (Ill. Rev. Stat. 1989, ch. 48, par. 69.)

Among the Act’s requirements is that scaffolds and hoists be erected or constructed in a manner that is safe and gives proper protection to persons on them. Ill. Rev. Stat. 1989, ch. 48, par. 60.

Factors that have been used in determining whether one was in charge of the work within the meaning of the Act are: (1) supervision and control of the work or retention of the right to supervise and control the work; (2) constant participation in ongoing activities at the site; (3) supervision and coordination of the subcontractors; (4) responsibility for safety precautions at the site; (5) authority to issue change orders; (6) authority to stop work; (7) ownership of equipment used at the site; (8) familiarity with construction practices; and (9) ability to correct unsafe or improper work habits and equipment deficiencies. (Gentile v. Kehe (1987), 165 Ill. App. 3d 802, 805-06, 520 N.E.2d 827.) It is unnecessary that a defendant be in direct charge of the particular operation from which the injury arose if it was in charge of the overall work for the project. Kohutko v. Four Columns, Ltd. (1986), 148 Ill. App. 3d 181, 186, 498 N.E.2d 522.

An architect who had the authority to stop the work if necessary for the proper performance of the contract was found in charge within the meaning of the Act in Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill. 2d 111, 122-23, 373 N.E.2d 1348, and an engineer who had the authority to suspend work, change the plans, and remove careless workers was found to have been in charge in Kirk v. Walter E. Deuchler Associates, Inc. (1979), 79 Ill. App. 3d 416, 419-20, 398 N.E.2d 603. The authority of an owner’s engineers to stop work that was being performed unsafely was the basis for finding an owner in charge in Kjellesvik v. Commonwealth Edison Co. (1979), 73 Ill. App. 3d 773, 777, 392 N.E.2d 116. An owner’s authority to do more than to ensure that contractual plans were met, including the ordering of work to be redone, was the basis for reversing a directed verdict entered in his favor in Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill. 2d 481, 491, 394 N.E.2d 403. Directed verdicts have also been rejected where an architect had the right to insist upon a safe method of shoring and to stop work performed in an unsafe manner (Miller v. DeWitt (1967), 37 Ill. 2d 273, 284-86, 226 N.E.2d 630), and where an engineer had the authority to remove workers and to suspend work (Foss v. Kingdon & Naven, Inc. (1975), 60 Ill. 2d 520, 527, 328 N.E.2d 297).

In addition to merely observing the work in progress to ensure that all work was in compliance, Benesch had the authority to inspect work, to administer the contract, to document all activities, to prepare all required documents, to conduct all materials testing, to identify and determine the ramifications of any unforeseen conditions, to monitor the movement of traffic, to determine the necessity for any field changes, to reject unacceptable work, to stop the contractor’s work if the result would be unacceptable and difficult to correct, to direct the contractor’s attention to areas needing effective coordination, to initiate necessary changes to the contract, to notify the contractor to correct deficiencies in the management of traffic, to approve any revised progress schedules submitted by the contractor, to review all contractor correspondence which was to be addressed to Benesch, to keep a daily project diary, and to furnish all testing equipment. An average of six to eight of Benesch’s personnel were present at the construction site each workday.

These facts demonstrate the direct connection that Benesch had with the construction on an ongoing basis. Although Benesch did not have direct control over the construction methods, it did have the right to stop certain work. There is a factual issue as to whether it was in charge within the meaning of the Act. (See McInerney v. Hasbrook Construction Co. (1975), 62 Ill. 2d 93, 101-02, 338 N.E.2d 868 (owner was in charge even without control of construction activities where it had some participation in the ongoing construction activity); Voss, 60 Ill. 2d at 527 (reversal of directed verdict in favor of defendant based at least partially on fact that engineer had the authority to suspend work because of unfavorable conditions); Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill. 2d 111, 123-24, 373 N.E.2d 1348 (verdict upheld against architect who had the authority to require the contractor to stop the work if necessary for the proper performance of the contract).) Benesch’s right to stop work if the result would be unacceptable and difficult to correct is a fact which distinguishes the cases in which architects or engineers were determined not to have been in charge. (See McGovern v. Standish (1976), 65 Ill. 2d 54, 69, 357 N.E.2d 1134 (architect’s function was limited to general overseeing); Fruzyna v. Walter C. Carlson Associates, Inc. (1979), 78 Ill. App. 3d 1050, 1059, 398 N.E.2d 60 (the architect did not have the authority to stop the work and had no continuous supervision duties); Diomar v. Landmark Associates (1980), 81 III. App. 3d 1135, 1138, 1141-44, 401 N.E.2d 1287 (architect did not have the authority to stop the work because of hazardous conditions and was to make only periodic visits to the site).) It was error for the trial court to find as a matter of law that Benesch was not in charge of the construction.

Plaintiff also argues that the manual’s provision stating that the engineer was not responsible for safety at the jobsite was void under “An Act in relation to indemnity in certain contracts” (Ill. Rev. Stat. 1989, ch. 29, par. 61). Benesch argues that the issue of the provision’s voidness was waived because it was not raised in the trial court (Carter v. Dunlop (1985), 138 Ill. App. 3d 58, 60, 484 N.E.2d 1273), and plaintiff responds that the issue was raised in the trial court by Benesch’s reply brief in support of the motion for summary judgment. We hold that the issue of voidness was waived because it was not raised by either party in the trial court; Benesch’s reply brief merely cited the provision and no argument was made about statutory applicability. Plaintiff also argues that Carter (138 Ill. App. 3d at 60) only held that the rationale for the waiver rule is that different theories or new questions should not be considered on appeal because proof might have been offered to refute them and that the rule does not apply here because the legal issue did not lend itself to proof. But legal issues that do not require consideration of evidence are also waived if not presented to the trial court. See Harbor Insurance Co. v. Arthur Andersen & Co. (1986), 149 Ill. App. 3d 235, 240, 500 N.E.2d 787 (an issue concerning the construction of insurance policies waived on appeal from summary judgment).

Benesch argues that the trial court properly entered summary judgment in its favor on the negligence count even though plaintiff did not raise the issue. Plaintiff asserts only in his reply brief that summary judgment should not have been entered on the negligence count. Issues raised for the first time in the reply brief are waived. (Continental Illinois National Bank & Trust Co. v. Spiegel (1987), 154 Ill. App. 3d 450, 452-53, 507 N.E.2d 58.) Summary judgment on the negligence count shall stand.

The judgment of the trial court is reversed, and the cause is remanded.

Reversed and remanded.

RIZZI and WHITE, JJ., concur.


source: Caselaw Access Project

author: JUDGE GREIMAN

license: Public Domain

text:
    ARNOLD BICKHAM, Plaintiff-Appellee and Cross-Appellant, v. STEPHEN F. SELCKE, Director of the Department of Professional Regulation, et al., Defendants-Appellants and Cross-Appellees.
    First District (3rd Division)
    No. 1 — 89—3198
    Opinion filed June 28,1991.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Rosalyn B. Kaplan, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Stackler & Augustine, of Chicago (Algis K. Augustine and Jeffrey B. Levins, of counsel), for appellee.
   JUDGE GREIMAN

delivered the opinion of the court:

The defendants, Stephen F. Selcke, the Director of the Illinois Department of Professional Regulation, and the Illinois Department of Professional Regulation (the Department), initiated this interlocutory appeal following an order by the circuit court of Cook County remanding this matter for a new administrative hearing based on an alleged procedural error, i.e., the hearing officer’s denial of a continuance requested by an attorney for the plaintiff, Dr. Arnold Bickham, on March 9, 1988.

The Department contends that the plaintiff has been afforded due process, the hearing officer did not abuse his discretion and the decision of the Department should be upheld.

For the reasons set forth below, we agree with the Department and accordingly reverse the circuit court’s order.

On cross-appeal, the plaintiff asserts that the Department’s decision to revoke his medical license should not remain in effect during the pendency of a rehearing. We need not address this issue in light of our decision that a new administrative hearing is not required.

On the morning of December 31, 1986, the plaintiff performed an abortion on Sylvia Moore, who was an 18-year-old woman in her second trimester of pregnancy. Later that same day Ms. Moore was taken by her mother to the emergency room at Rush-Presbyterian-St. Luke’s Medical Center (Rush). Surgery was performed at Rush but Ms. Moore did not survive.

On February 17, 1987, the Department filed a formal complaint against the plaintiff based on his negligent performance of the abortion on Ms. Moore. The Department’s complaint alleged that plaintiff’s performance during the abortion procedure constituted malpractice, the operation was the direct and proximate cause of Ms. Moore’s death, and the plaintiff’s acts were grounds for revocation or suspension under the Medical Practice Act (the Act) (Ill. Rev. Stat. 1985, ch. 111, par. 4401 et seq.). Accordingly, the Department requested that the plaintiff’s license as a physician and surgeon be suspended, revoked or that he be otherwise disciplined.

The formal evidentiary hearings on the Department’s complaint commenced on February 9, 1988, and concluded four months later after 12 days of hearings.

On March 9, 1988, the fifth day of hearings, Alan Rhine, an attorney appearing on behalf of the plaintiff, requested a continuance due to the illness of another attorney, Algis Augustine. The hearing officer, Thomas Chiola, observed that during the course of this case, four attorneys had appeared on behalf of the plaintiff. The four attorneys were Algis Augustine, Ronald Stackler (Mr. Augustine’s partner), Kathryn Ingram (a new member of the Stackler & Augustine law firm), and Alan Rhine (an independent attorney who occasionally worked with Mr. Augustine). Mr. Rhine asserted that he was not familiar with the plaintiff’s case and that he had other pending matters requiring his attention. The hearing officer reminded Mr. Rhine that he had been involved in the pretrial proceedings in this case. Mr. Rhine further contended that Mr. Stackler could not attend this hearing because he was out of the State. However, later information revealed that Mr. Stackler was not out of town.

The hearing officer denied Mr. Rhine’s motion for a continuance, reasoning that the plaintiff was represented by two attorneys (Mr. Rhine and Ms. Ingram) and that members of the panel (three members of the Medical Disciplinary Board and the hearing officer) were prepared to ask questions of the scheduled witnesses to provide a full record to the Medical Disciplinary Board (Board). After the hearing officer’s ruling, Mr. Rhine left the proceedings but Ms. Ingram remained.

Two witnesses, both of whom were Ms. Moore’s attending physicians at Rush, testified at the March 9 hearing. Dr. Patricia Boatwright was the obstetrics and gynecology surgeon; Dr. Bruce Spiess was the anesthesiologist. Following the direct examination of each witness, Ms. Ingram expressly reserved the right to cross-examine them when Mr. Augustine could be present.

In response to this reservation of rights following the direct examination of Dr. Boatwright, the hearing officer stated “now is the time if you have questions.” Although such response was probably improper, at the next hearing (April 5), the hearing officer recognized the inappropriateness of his statement and advised plaintiff that he had not precluded the two witnesses from being recalled.

After Ms. Ingram specifically reserved the right to cross-examine each witness, all three Board members and the hearing officer questioned the two witnesses.

On April 5, 1988, the next scheduled hearing day, Mr. Augustine argued his motion for a mishearing based on the hearing officer’s denial of a continuance at the March 9 hearing. The hearing officer denied the motion, finding that the plaintiff had not shown any actual prejudice, any additional testimony could be taken during the plaintiff’s case in chief which had not yet been presented, and the March 9 witnesses were not precluded from being recalled.

Seven hearings were held following the March 9 proceeding. The subsequent hearings took place on April 5, April 6, April 7, May 4, May 5, May 6, and June 1.

During those months, the plaintiff never requested that the Department make the March 9 witnesses available for cross-examination, never asked that any portions of the record of March 9 be stricken, and never recalled the two witnesses who testified on March 9. Since the plaintiff made no further requests with respect to those witnesses, no further rulings were made by the hearing officer.

However, during his case in chief, the plaintiff called several other health care providers from Rush, including doctors and nurses who provided medical services to Ms. Moore. Before these witnesses from Rush testified, the hearing officer ruled that plaintiff’s counsel could treat them as “adverse” witnesses and thus cross-examine during direct examination. Nothing in the record reveals that the hearing officer would have treated the March 9 witnesses any differently.

On July 25, 1988, the hearing officer issued his report to the Medical Disciplinary Board and recommended that sanctions be imposed upon plaintiff. Thereafter, the Board adopted the hearing officer’s findings of fact and conclusions of law and made its recommendation to revoke the plaintiff’s license. On October 31, 1988, the Director of the Department, Stephen F. Selcke, adopted the Board’s conclusions and revoked the plaintiff’s license for a minimum of five years.

The plaintiff filed a complaint in the circuit court for administrative review of the Director’s decision and alleged numerous errors in the administrative proceedings.

The circuit court granted the plaintiff a new administrative hearing on the grounds that the hearing officer’s refusal to grant a continuance on March 9 was an abuse of discretion. The circuit court found that the plaintiff’s guaranteed right to be assisted by counsel was denied on March 9; that the issue is one of an attorney’s preparedness, not the mere presence of other attorneys; that the fundamental right of a fair hearing was at stake and outweighed concerns for speed, efficiency and inconvenience; and a single day’s delay would not cause harm to the public interest.

While the thoughtful decision of the court below strikes many responsive chords, an examination of the entire record does not justify remandment for a rehearing.

The precedential value of this decision must be limited to the narrow circumstances of this case where plaintiff, after properly reserving the right of cross-examination, failed to ask for an opportunity to cross-examine the witnesses at any of the seven subsequent hearings.

In support of his position, the plaintiff contends that the denial of his motion for continuance was an abuse of discretion, citing Ullmen v. Department of Registration & Education (1978), 67 Ill. App. 3d 519, 385 N.E.2d 58. In Ullmen, this court found that an administrative agency’s refusal to grant a continuance constituted an abuse of discretion and warranted a new administrative hearing.

The Ullmen case is distinguishable from the present case. Ullmen involved proceedings to suspend plaintiff’s real estate broker’s license. The plaintiff appeared without counsel at the first hearing day (June 10, 1976) and requested a continuance due to her attorney’s absence by reason of his wife’s sudden and serious illness. Denying the plaintiff’s request for a continuance, the Real Estate Examining Committee advised the plaintiff that she could purchase a transcript of the adverse witnesses’ testimony and could request that the Department subpoena these witnesses again later in the proceedings, but at her expense and only as defense witnesses. The plaintiff remained at the hearing but asked no questions and made no statements. When the hearings reconvened on July 30, the plaintiff’s objections to the June 10 hearing were overruled.

In Ullmen, plaintiff lacked any legal representation. Moreover, the plaintiff suffered prejudice because she was required to call the witnesses who testified at the disputed hearing as her own witnesses at the reconvened hearing, instead of pursuing their cross-examination through her attorney.

Unlike the plaintiff in Ullmen, the plaintiff in the case at bar had legal representation at the disputed hearing. Although Mr. Rhine chose to leave the hearing, Ms. Ingram remained and expressly reserved the right to cross-examine the two witnesses at a later time.

Seven more hearings were held over the span of nearly three months (March 9 through June 1) which gave the plaintiff ample opportunity to assert this right, which was specifically reserved on the record. The plaintiff abandoned his opportunity and right to cross-examine.

Unlike the committee in Ullmen, the hearing officer in the present case did not instruct the plaintiff that he would have to request that the witnesses be subpoenaed at his expense and as defense witnesses. The hearing officer never ruled on whether or not the plaintiff would be required to call the March 9 witnesses as his own witnesses because the plaintiff never attempted to recall these witnesses.

It is well established that an administrative agency possesses broad discretion in deciding whether or not to grant a motion for a continuance. (Brown v. Air Pollution Control Board (1967), 37 Ill. 2d 450, 227 N.E .2d 754.) Such discretion, however, “must be exercised judiciously, and not arbitrarily” so as to satisfy the ends of justice. Brown, 37 Ill. 2d at 454, 227 N.E.2d at 756-57.

“Administrative as well as judicial proceedings are governed by the fundamental principles and requirements of due process of law.” (Brown, 37 Ill. 2d at 454, 227 N.E.2d at 756.) Cross-examination is indisputably a fundamental right and an integral part of due process. Accordingly, “[bjasic notions of fair play require that parties have an opportunity to cross-examine, explain or refute facts.” (Six-Brothers King Drive Supermarket, Inc. v. Department of Revenue (1989), 192 Ill. App. 3d 976, 983, 549 N.E. 2d 586, 590.) In Six-Brothers, this court held that a denial of a motion for continuance warranted a new hearing because the “unique circumstances” of the case prevented the plaintiff “from any type of representation at all, and the hearing became an ex parte proceeding.” Six-Brothers, 192 Ill. App. 3d at 984, 549 N.E.2d at 590.

We find that under the facts of this case, the hearing officer did not abuse his discretion in denying the plaintiff’s motion for a continuance.

“There is no absolute right to a continuance in an administrative proceeding, the agency possessing broad discretion in determining whether to allow a delay in the proceedings.” (Wegmann v. Department of Registration & Education (1978), 61 Ill. App. 3d 352, 357, 377 N.E.2d 1297.) In determining whether or not there has been an abuse of discretion, the courts have considered whether or not any prejudice to the moving party resulted from the administrative agency’s decision. (Rasky v. Department of Registration & Education (1980), 87 Ill. App. 3d 580, 410 N.E.2d 69, 76; see also Giampa v. Illinois Civil Service Comm’n (1980), 89 Ill. App. 3d 606, 411 N.E.2d 1110 (the hearing officer did not err in allowing the filing of a second charge against the plaintiff where the plaintiff did not demonstrate that he suffered any prejudice from the amendment); Midwest Home Savings & Loan Association v. Ridgewood, Inc. (1984), 123 Ill. App. 3d 1001, 463 N.E.2d 909.) In Midwest Home Savings & Loan Association, while dismissing the appeal on procedural grounds, the court noted that “the denial or refusal of a continuance is not a ground for reversal where the party complaining is not prejudiced thereby. [Citation.] Defendant does not allege any prejudice resulting to it from the denial of its motion; therefore, we conclude that the denial of defendant’s motion for a continuance was not error.” Midwest Home Savings & Loan Association, 123 Ill. App. 3d at 1005.

Similarly, where nothing in the record establishes prejudice to the movant, the hearing board’s decision will not be reversed even if it was error not to allow a continuance. (Martich v. Ellis (1981), 100 Ill. App. 3d 1098, 427 N.E.2d 876.) In Martich, the plaintiff was a patrolman suspended for 30 days by the Board of Fire and Police Commissioners of the Village of Matteson. In affirming the plaintiff’s suspension, the court held that the board acted within its discretion in denying the plaintiff’s request for a continuance to permit a witness to go home and obtain his original handwritten statement where a verbatim account of the handwritten statement had already been provided. The Martich court continued by finding that even assuming it was error to deny a continuance, nothing in the record established prejudice to the plaintiff.

To demonstrate prejudice in the present case, plaintiff argues that (1) he was deprived of the chance to minimize the damage the March 9 witnesses would have on his defense against the charges levied by the Department; (2) the inability to cross-examine the witnesses when they gave their direct testimony effectively deprived plaintiff of his right to legal representation; (3) he was denied the opportunity to object to improper questions and make appropriate statements at the time of direct examination; and (4) Drs. Boatwright and Spiess were the two most critical witnesses for the Department.

We find plaintiff’s arguments unpersuasive for several reasons. Plaintiff’s assertions seem to overlook the fundamental format which necessarily defines an administrative proceeding. The primary purpose of an evidentiary hearing is to compile a record for examination by the ultimate decisionmaker. In turn, the record, together with the hearing officer’s findings and recommendations, is reviewed by the Board. Thereafter, the record, together with the Board’s findings and recommendations, is examined by the Department, whose Director then makes the decision. Accordingly, this three-step process indicates that the final decisionmaker, i.e., the Director of the Department, is not concerned with nor dependent on the sequence of the testimony or evidence presented at the initial hearing stage.

Furthermore, the distinction between administrative and judicial proceedings is well recognized. An “administrative procedure is simpler, less formal and less technical than judicial procedure.” (Desai v. Metropolitan Sanitary District of Greater Chicago (1984), 125 Ill. App. 3d 1031, 1033, 466 N.E.2d 1045.) “Due process requirements differ in judicial and administrative hearings.” (Sapstein Brothers Pharmacy, Inc. v. Department of Registration & Education (1988), 177 Ill. App. 3d 349, 352, 532 N.E.2d 340.) “ ‘[D]ue process is flexible and calls for such procedural protections as the particular situation demands.’ ” Scott v. Department of Commerce & Community Affairs (1981), 84 Ill. 2d 42, 51, 416 N.E.2d 1082, quoting Mathews v. Eldridge (1976), 424 U.S. 319, 334, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 902.

In light of the multiple-level review process and the less structured format of an administrative proceeding, plaintiff had ample opportunity to present his case fully on the record during the seven subsequent hearings held after March 9. Plaintiff had the option of recalling the March 9 witnesses to elicit any further information which plaintiff deemed helpful or necessary to his defense and of filing motions to strike any alleged improper questions or answers brought out during direct examination.

Moreover, plaintiff now admits in his brief that he “was not hoping to adduce proof beyond the scope of their direct examination, nor did he wish to employ their testimony to prove anything.” Certainly, plaintiff’s characterization of Drs. Boatwright and Spiess as the two most critical witnesses brings into question plaintiff’s lack of action in asserting his reserved right to cross-examine them.

We conclude the plaintiff has not demonstrated sufficient prejudice to establish that the hearing officer abused his discretion in denying plaintiff’s motion for a continuance.

The diligence of the movant is another factor considered by the courts in determining whether or not it was an abuse of discretion to deny a motion for continuance. Bethany Reformed Church v. Hager (1979), 68 Ill. App. 3d 509, 511, 386 N.E.2d 514, 516 (“a critical consideration in deciding whether a continuance should be granted is whether the moving party has proceeded with diligence”).

The court in Giampa v. Illinois Civil Service Comm’n (1980), 89 Ill. App. 3d 606, 411 N.E.2d 1110, found no abuse of discretion in the denial of the plaintiff’s request for a continuance and reasoned that the plaintiff’s lack of due diligence was a determining factor in its conclusion. (Giampa, 89 Ill. App. 3d at 611.) The plaintiff in Giampa was discharged from his job with the Illinois Commission on Delinquency Prevention based on the charge that he had aided a minor in her taking of alcoholic substances. At the end of the hearing, the plaintiff sought a continuance to enable him to subpoena the complainant-victim as a witness. In affirming the hearing officer’s denial of the plaintiff’s request for a continuance, the court found that the plaintiff’s counsel had timely notice of the hearing, he never inquired whether the assistant Attorney General intended to have the victim testify, and he made no attempt to secure the presence of the alleged victim.

Similarly, the plaintiff in the instant case clearly cannot claim a lack of notice of the hearings or a lack of knowledge that Drs. Boatwright and Spiess testified. Also like the plaintiff in Giampa, the present plaintiff failed to make any attempt to secure the presence of the witnesses subject to the dispute.

The principle underlying the due diligence requirement suggests that a party should actively pursue his rights. Here, plaintiff had more than sufficient time to assert his right to cross-examine the March 9 witnesses.

Upon examination of the whole record, we cannot say that the action of the hearing officer denied plaintiff his right of cross-examination or denied him the basic elements of fairness that must always be present in proceedings of this nature.

On cross-appeal, plaintiff contests the order entered by the circuit court on November 2, 1989, which provides that although a new hearing was required, the Department’s decision to revoke plaintiff’s medical license was not reversed. Plaintiff asserts that a remand without a reversal violates his constitutional right to due process and if section 41 of the Medical Practice Act allows plaintiff’s license to remain revoked during the rehearing process, then section 41 should be declared unconstitutional.

Section 41 provides as follows:

“During the pendency and hearing of any and all judicial proceedings incident to such disciplinary action the sanctions imposed upon the accused by the Department shall remain in full force and effect.” Ill. Rev. Stat. 1989, ch. 111, par. 4400 — 41.

Since we have found that a new hearing is not required in this case, we need not address this issue. However, we note that the constitutionality of section 41 has recently been upheld again in Pundy v. Department of Professional Regulation (1991), 211 Ill. App. 3d 475.

Accordingly, we reverse the order of the circuit court and remand the cause to the circuit court for resolution of the remaining grounds for administrative review which were not considered by the court below.

Reversed and remanded with directions.

CERDA, P.J., and WHITE, J., concur.


author: JUSTICE GREIMAN

text:
    SALLY HOLLAND et al., Plaintiffs-Appellees, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 90—0608
    Opinion filed June 28,1991.

      Taylor, Miller, Sprowl, Hoffnagle & Merletti, of Chicago (Roger LeRoy, of counsel), for appellant.

      Law Offices of Patrick A. Murphy, of Chicago, for appellees.
   JUSTICE GREIMAN

delivered the opinion of the court:

Defendant State Farm Insurance appeals from an adverse decision rendered subsequent to a bench trial. The trial court held defendant violated the Illinois Insurance Code by not offering optional uninsured motorist coverage when plaintiff purchased an automobile insurance policy in October 1983. Ill. Rev. Stat. 1983, ch. 73, par. 755a — 2.

We affirm the trial court’s holding.

The issues on appeal are (1) whether plaintiffs met their burden of showing defendant failed to provide plaintiff with the information required for offering the optional coverage (Cloninger v. National General Insurance Co. (1985), 109 Ill. 2d 419, 488 N.E.2d 548), and (2) if so, whether defendant’s testimony adequately rebuts that showing.

The General Assembly enacted legislation imposing a duty on insurers to offer uninsured and underinsured motorist coverage to new and existing policyholders in an amount equal to the insured’s bodily injury liability limits. Pub. Act 82 — 920, eff. Aug. 16,1982.

In the process of renewing car insurance for herself and her husband, plaintiff Sally Holland (plaintiff) telephoned State Farm agent Gene Mueller’s office in an effort to obtain better coverage than she was receiving under her current policy. It is undisputed that Mueller is an agent of State Farm (defendant). Plaintiff spoke with Mueller's secretary and received quotes for “medical pay” that would allow her more coverage for less premium. She did not discuss uninsured motorist coverage with the secretary, but made an appointment to apply for insurance.

In the conference with Mueller, defendant was given a copy of plaintiff’s Allstate policy, made aware of its coverage and premiums, and knew plaintiffs sought a reduced premium. The coverage plaintiff obtained was the same coverage she had with her previous company, except for increased “medical pay.”

Under the policy issued by defendant, plaintiff’s coverage was 100/300 liability ($100,000 per person, $300,000 per occurrence); 15/30 uninsured motorist ($15,000 per person, $30,000 per occurrence); $100,000 medical pay; $50,000 property damage; $50 deductible; and road service. At that time, plaintiff signed a document stating she had been informed of the option to purchase uninsured coverage up to the liability limits of her policy and that she rejected the offer. Plaintiff’s policy was effective October 25, 1983, and was renewed every six months without changes through April 25,1987.

On July 20, 1985, the Hollands sustained personal injuries in an accident with an uninsured motorist. Plaintiffs presented claims to defendant under the uninsured motorist provision of the policy issued by defendant, and defendant acknowledged coverage in limitations of 15/30 ($15,000 per person, $30,000 per occurrence) as expressed in the policy.

Plaintiff testified at the bench trial that she had no recollection of any discussion with Mueller regarding any coverage other than medical pay. She stated she never heard the words “uninsured motorist” or “underinsured motorist” in her conversation with him, nor did she understand what uninsured motorist coverage was when she left defendant’s office.

Plaintiff contends that at no time was she advised that she was entitled to obtain coverage in an amount equal to her liability limits of 100/300, nor was she informed of the minor difference in premium costs had she chosen the optional 100/300 uninsured motorist coverage.

Plaintiff told the trial court that she was not aware that she was entitled to these limits on “uninsured” coverage until after the accident and that, had she known, she would have purchased the extra coverage because it was her habit to purchase greater protection even if at a higher rate. The evidence discloses that she did pay a premium higher than the defendant’s original quote without complaint.

The testimony of defendant’s agent does not appear to come from an independent recollection, but rather from a description of what he suggests were his usual procedures in discussing insurance coverage with prospective customers. He testified that his usual procedures consisted of always recommending that a new applicant obtain certain high limits of coverage and that the uninsured coverage be consistent with this recommendation. He noted that plaintiff had executed a document acknowledging her rejection of the opportunity to purchase uninsured coverage “up to an amount equal to my Automobile Bodily Injury Liability Limits.” Plaintiff, however, contends that she signed this document because she “probably thought it was part of the application.”

Defendant’s agent further testified that it was his practice to always discuss costs of policies and to explain the marginal cost of extra coverage. He acknowledged, however, that at the time of the conference with plaintiff, he had only received a brief notification with respect to the new legislation rather than detailed guidelines or instructions explaining the newly required optional coverage, the conversation being approximately three months after the effective date of this amendment to the Insurance Code.

Illinois courts have established four criteria which must be met in order to comply with the provisions of the Insurance Code requiring the offer of optional uninsured motorist coverage:

(1.) Notification of the available option must be made in a commercially reasonable manner, if not done in face-to-face negotiations.
(2.) The insurer must specify the limits of its optional coverages and not merely offer them in general terms.
(3.) The insurer must intelligibly advise the insured of the nature of the optional coverages.
(4.) The insured must be advised that optional coverages are available for a relatively modest increase in premiums.

Cloninger v. National General Insurance Co. (1985), 109 Ill. 2d 419, 425-26, 488 N.E.2d 548; Tucker v. Country Mutual Insurance Co. (1984), 125 Ill. App. 3d 329, 465 N.E.2d 956.

While the parties agree the first criterion has been met by the meeting between plaintiff and defendant’s agent, evidence of compliance with the remaining three is certainly less clear.

The Cloninger court found that the defendant had complied with the criterion that required accurate description of the limits of the policy, but had not complied with explanations as to the nature of the uninsured motorist coverage.

In Tucker, however, the insurer had failed to describe the specific limitations of the policy in issue. Although plaintiff’s and defendant’s recollections regarding the conversation of October 1983 are sometimes vague or nonexistent, the trial court found plaintiff’s testimony credible that she did not recall defendant explaining anything about uninsured or underinsured automobile insurance coverage to her. Further, the trial court was not persuaded that even defendant’s customary practices in October 1983 complied with the criteria set forth in Cloninger and Tucker.

Apparently, defendant’s agent erred in computing the premium charged plaintiff and nonetheless plaintiff knowingly paid the increased premium. Plaintiff suggests that such an error is proof that the “cost” prong of the Cloninger four-point test was not satisfied.

Defendant counters, and we agree, that the exact cost of the optional coverage need not be conveyed. Krska v. Allstate Insurance Co. (1987), 162 Ill. App. 3d 549, 515 N.E.2d 1304.

The trial court found, however, that State Farm failed to satisfy the requirement that the insurer must intelligibly advise the insured as to the nature of the optional coverages. Accordingly, we believe that the plaintiff carried her burden of proof and proved a prima facie case.

Defendant next suggests that its agent's faint glimmer of a memory coupled with an explanation of his customary practices rises to the level of being unimpeached and uncontradicted testimony of a witness which cannot be arbitrarily disregarded by the trier of fact unless the testimony is inherently improbable, contradictory, unworthy of belief, evasive or equivocal. Defendant asserts that its agent recalls many details of the conversation between the parties while plaintiff remembers almost none of it.

In a bench trial, the trial court may determine the weight and credibility of the testimony of witnesses, may resolve inconsistencies and conflicts and render its decision accordingly. (People v. Green (1982), 104 Ill. App. 3d 278, 432 N.E.2d 937.) The findings and judgment of the trial court ought not to be overturned if there is any evidence in the record to support them. Tomaso v. Plum Grove Bank (1985), 130 Ill. App. 3d 18, 473 N.E.2d 588.

In the case at bar, defendant’s agent’s testimony as to his usual procedures is contradicted by both the plaintiff’s credible testimony and by the circumstantial fact that defendant had no specific instructional procedure at the time for advising new insureds of the optional coverage. A reviewing court cannot substitute its judgment on matters unless the findings are clearly against the manifest weight of the evidence. MBL (USA) Corp. v. Diekman (1983), 112 Ill. App. 3d 229,445 N.E.2d 418.

We believe, therefore, that plaintiff has carried her burden in establishing a prima facie case showing defendant’s failure to observe at least two of the criteria required for compliance with the Insurance Code relating to optional coverage for uninsured motorists liability. We will not disturb the trial court’s findings merely because one of the witnesses’ testimony is not directly contradicted.

Accordingly, we affirm the judgment of the circuit court of Cook County.

Affirmed.

CERDA, P.J., and WHITE, J., concur.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CURTIS THOMAS, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 88—2819
    Opinion filed June 28,1991.

      Randolph N. Stone, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kevin Sweeney, and Michael Latz, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Curtis Thomas, was convicted of second degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a)(1)) following a bench trial in the circuit court of Cook County. The trial judge sentenced defendant to the penitentiary for a term of four years.

On appeal, defendant attacks the constitutionality of the second degree murder statute, found in section 9 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2). He contends Criminal Code section 9 — 2 denies defendants convicted of second degree murder due process of law and the equal protection of the law, and also violates the principle of separation of powers as prescribed by the Illinois Constitution. He raises no other issues.

We affirm the judgment of the trial court.

Background

The record contains the following pertinent facts. On July 15, 1987, defendant was indicted for first degree murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(1), (a)(2)) and armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2). On March 1, 1988, defendant received a bench trial. Defendant admitted that he fatally stabbed the victim. However, he claimed that he did so solely in fear for his life or of receiving substantial bodily harm.

At the close of the evidence, the State entered a nolle prosequi on the armed violence count. The trial judge convicted defendant of second degree murder.

At the sentencing hearing, the trial judge denied defendant’s post-trial motion. The judge specifically ruled that Criminal Code section 9 — 2 was constitutional. At the close of the hearing, the trial judge sentenced defendant to a prison term of four years. Defendant appeals.

Opinion

A

Defendant’s sole claim on appeal is that Criminal Code section 9 — 2 is unconstitutional. Defendant’s attack has three prongs. Defendant first contends the second degree murder statute violates the due process clause of the fourteenth amendment to the United States Constitution. (U.S. Const., amend. XIV.) He argues that the statute “relieves the prosecutor from proving beyond a reasonable doubt every element of first degree murder.” However, this court has rejected the argument. People v. Buckner (1990), 203 Ill. App. 3d 525, 530-34, 561 N.E.2d 335, 339-41, relied on in People v. Clark (1991), 207 Ill. App. 3d 439, 443-44, 565 N.E.2d 1373,1376.

B

Defendant next contends that Criminal Code section 9 — 2 violates the equal protection clause of either the fourteenth amendment to the United States Constitution or the Illinois Constitution. (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2.) He argues that the statute deters “those convicted of second degree murder from appealing their convictions.”

It had been long settled that voluntary manslaughter was a lesser included offense of murder. (People v. Lewis (1940), 375 Ill. 330, 333-34, 31 N.E.2d 795, 797.) Based on this theory, if an accused was charged with murder, but a trial on the charge resulted in a conviction of voluntary manslaughter, that judgment constituted an acquittal of the murder charge and barred a subsequent prosecution for murder arising out of the same facts. (People v. Liddell (1933), 353 Ill. 201, 204, 187 N.E. 174, 175; People v. Goodwin (1981), 98 Ill. App. 3d 726, 730, 424 N.E.2d 425, 428; People v. Echoles (1976), 36 Ill. App. 3d 845, 854, 344 N.E.2d 620, 627.) Courts reasoned that the trier of fact necessarily found the existence of a mitigating factor to reduce the offense from murder to voluntary manslaughter. Since the fact finder made this implied determination in the defendant’s favor, the defendant could not again be put in jeopardy. (People v. Brennan (1854), 15 Ill. 511, 517; People v. Dugan (1973), 15 Ill. App. 3d 1071, 1073, 305 N.E.2d 308, 309.) This principle is incorporated in section 3 — 4(a) of the Criminal Code of 1961. Ill. Rev. Stat. 1987, ch. 38, par. 3 — 4(a).

Defendant notes that the new offense of second degree murder is not a lesser included offense of first degree murder. Rather, second degree murder is first degree murder plus the element of mitigation. (Steigmann, First and Second Degree Murder in Illinois, 75 Ill. B.J. 494, 497 (1987).) Since second degree murder is not a lesser included offense of first degree murder, defendant reasons that if a defendant were to have his second degree murder conviction reversed and be granted a new trial, he could be retried for first degree murder. Thus, defendant argues, “[u]nlike other defendants, those convicted of second degree murder risk receiving a more severe sentence if they appeal.”

We disagree. As noted above, Criminal Code section 3 — 4(a) protected defendants convicted of the old offense of voluntary manslaughter from double jeopardy. (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 4(a).) However, it is quite clear that Criminal Code section 3— 4(b) protects a defendant convicted of second degree murder from being retried for first degree murder. (111. Rev. Stat. 1987, ch. 38, par. 3 — 4(b).) Section 3 — 4(b)(2) provides as follows:

“(b) A prosecution is barred if the defendant was formerly prosecuted for a different offense, or for the same offense based upon different facts, if such former prosecution:
***
(2) Was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact necessary to a conviction in the subsequent prosecution.” Ill. Rev. Stat. 1987, ch. 38, par. 3— 4(b)(2).

Criminal Code section 3 — 4(b)(2) embodies the common law doctrine of collateral estoppel, which is included in the double jeopardy prohibition of the fifth amendment to the United States Constitution. (People v. Shlensky (1983), 118 Ill. App. 3d 243, 246-47, 454 N.E.2d 1103, 1105-06.) The doctrine provides that when a valid and final judgment determines an issue of ultimate fact, the same parties cannot again litigate the issue in any future lawsuit. People v. Williams (1975), 59 Ill. 2d 557, 560, 322 N.E.2d 461, 462-63, citing Ashe v. Swenson (1970), 397 U.S. 436, 443, 25 L. Ed. 2d 469, 475, 90 S. Ct. 1189, 1194.

The doctrine of collateral estoppel requires that the issue of ultimate fact be controlling or material to both lawsuits; it matters not whether the lawsuits contain the same cause of action. Further, the record of the prior lawsuit must show that the trier of fact determined the issue. In other words, the fact finder must necessarily have decided the issue to render a verdict. Collateral estoppel will not bar the litigation of an issue in a second action if the record of the first lawsuit fails to show that the fact finder determined the issue. Williams, 59 Ill. 2d at 561-62, 322 N.E.2d at 463, citing Hoffman v. Hoffman (1928), 330 Ill. 413, 417, 161 N.E. 723, 725-26; People v. Zegiel (1989), 179 Ill. App. 3d 649, 651, 534 N.E.2d 664, 665.

When a defendant is charged with first degree murder, but convicted of second degree murder, the trier of fact necessarily determined that the defendant proved the existence of a mitigating factor. (Buckner, 203 Ill. App. 3d at 531, 561 N.E.2d at 339, citing People v. Shumpert (1989), 126 Ill. 2d 344, 351-52, 533 N.E.2d 1106, 1109.) As a result, the State and defendant cannot again litigate the element of mitigation. See, e.g., People v. Ward (1978), 72 Ill. 2d 379, 381 N.E.2d 256; Zegiel, 179 Ill. App. 3d at 651-52, 534 N.E.2d at 665-66.

Thus, defendants convicted of second degree murder do not risk being put in jeopardy any more than defendants convicted of first degree murder. Consequently, we hold that defendants convicted of second degree murder are not denied the equal protection of the law.

C

Defendant lastly contends that Criminal Code section 9 — 2 violates the separation of powers clause of the Illinois Constitution. (Ill. Const. 1970, art. II, §1.) He argues that in enacting the statute, “the legislature assumed the role of prosecutor.” However, this court has rejected the argument. Clark, 207 Ill. App. 3d at 449, 565 N.E.2d at 1379.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.