author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRENDA M. JONES, Defendant-Appellant.
    Second District
    No. 2-87-0002
    Opinion filed June 23, 1989.
    Rehearing denied July 27, 1989.
   SUPPLEMENTAL OPINION

JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Brenda M. Jones, was found guilty following a jury trial in the circuit court of Kane County of unlawful delivery of a substance containing less than 15 grams of cocaine (Ill. Rev. Stat. 1987, ch. 561/z, par. 1401(a)(2)). She was sentenced to a 30-month probationary term, conditioned, in part, upon receiving a drug and alcohol evaluation from the Kane County Diagnostic Center and upon her following its recommended course of treatment.

In her appeal, defendant initially raised two issues: (1) whether she should receive a new trial because, although the trial judge made findings which amounted to a determination that the prosecutor failed to provide a race-neutral explanation for his peremptory challenge of the only black person in the venire, he misapplied the law and denied her motion for a mistrial; and (2) whether the trial court improperly delegated its sentencing authority by ordering defendant, as a condition of probation, to submit to a drug-evaluation program and to comply with any treatment recommended by the program.

In our original opinion in this case, People v. Jones (1988), 177 Ill. App. 3d 663, 532 N.E.2d 543, we considered only the first issue raised, that concerning the prosecutor’s peremptory challenge of the only black person in the venire, and remanded to the circuit court to conduct a hearing under the principles enunciated in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, retaining jurisdiction to review the circuit court’s decision following a Batson hearing and for consideration of the sentencing issue raised, but not decided, in our original opinion. The circuit court conducted the hearing and found that defendant had failed to establish a prima facie case of discrimination and, even if a prima facie case were shown, the prosecutor presented a racially neutral explanation for discharging the juror.

On return of the case to this court, defendant raises two additional issues: (1) whether her absence from the proceeding below requires another remandment for a new Batson hearing where she is present, and (2) whether the findings of the circuit court following the Batson hearing were an abuse of discretion.

During voir dire in the original trial, the prosecuting attorney exercised a peremptory challenge against Donald Sivels, the only black member of the venire. Defendant is also black. At that point, defense counsel asked, pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, to hear an explanation as to why Sivels was excused. He noted that defendant and Sivels were of an identifiable racial grouping, that Sivels was the only black man in the venire, and that Batson allowed him to shift the burden to the State to explain the challenge.

The trial judge responded that he believed it was up to the assistant State’s Attorney to offer an explanation of why he excused Sivels. The assistant State’s Attorney stated, in this regard, that he challenged Sivels because Sivels demonstrated a hesitancy when answering questions concerning whether or not he had strong feelings about the sale or possession of illegal drugs. He further maintained that he was concerned because Sivels had previously served on a civil jury and that he was afraid Sivels would confuse the burdens between the civil and criminal cases.

At that time, the trial judge stated that, although he was not totally familiar with the Batson decision, he believed, based on the questioning and answers of Sivels, that there had not been a showing of cause to excuse Sivels. He also noted that if he had been the assistant State’s Attorney, he would not have excused Sivels by use of a peremptory challenge.

At the hearing on remand, the court noted that defendant was not present. Defense counsel indicated that he wrote to defendant at her last known address informing her that the hearing was to be held on February 10, 1989. Defense counsel further stated that, assuming defendant received the letter, she had elected not to appear. The trial court asked if defense counsel was waiving defendant’s presence, to which defense counsel replied, “I’m asking that her presence be waived.” The trial court then asked if defense counsel meant for purposes of the hearing, to which defense counsel responded, “Yes, sir.” The hearing was conducted without defendant being present.

As to the Batson issue, defense counsel pointed to juror Sivels’ employment with the Department of Corrections, that he had a friend who is a police officer, that he had been a plaintiff in a prior lawsuit, that he had been a juror in a civil case, and that he had been a victim of a burglary, as indicating that Sivels would be a juror favorable to the State. He further noted that Sivels’ answer to a question regarding drug use during voir dire indicated that he thought it was against the law and wrong.

Defense counsel also focused on several white venirepersons who responded to questions regarding drugs. One venireperson appeared hesitant before answering, one answered that he had no strong feelings about drugs, and one indicated that she had no personal feelings about persons who use or sell drugs. Defense counsel essentially argued that comparing Sivels to those venirepersons demonstrates a prima facie case of discrimination. The trial court then allowed the State to rebut defendant’s prima facie argument.

The State relied on People v. Evans (1988), 125 Ill. 2d 50, 530 N.E.2d 1360, in arguing that there are no relevant facts and circumstances which give rise to an inference of racial discrimination in this case. The State pointed out that there is no pattern of strikes because only one black venireperson was challenged, that the prosecutor’s questions and statements do not indicate a racial motivation in challenging Sivels, that the number of peremptory challenges is not disproportionate in terms of the number used to strike blacks because of the four peremptory challenges used, only one was used to strike a black, and that the race of the defendant and the State’s principal witness is the same.

At the conclusion of the State’s rebuttal argument and before determining whether defendant has established a prima facie case of purposeful discrimination, the trial court allowed the State to argue its racially neutral reasons for excusing Sivels. The State first offered, as a racially neutral explanation for excusing Sivels, that Sivels hesitated in answering a question regarding drug use and sales. At that point, the trial court referred the prosecutor to his remarks at the prior trial in which the prosecutor stated that he peremptorily challenged Sivels for two reasons, that he hesitated when responding to questions about drugs and that he had been a juror in a civil trial. The prosecutor indicated that he was adopting those same reasons as racially neutral explanations in this hearing as well.

The trial court found that based on his recollection and review of the record there was no indication of racial discrimination in striking Sivels. The trial judge further observed that during his 3x/2 years trying felony jury cases in Kane County he never perceived discriminatory exclusion of minorities from juries. Further, he has observed the prosecutor in this case try numerous cases involving minorities, and he has never felt that the prosecutor had participated in any racially discriminatory jury-selection practices. The trial court also found, based upon his recollection of Sivels and review of the record, that Sivels did hesitate in answering the question regarding drugs.

The trial court then ruled that defendant failed to establish a prima facie case of purposeful discrimination by the prosecutor. Alternatively, the trial court ruled that even if a prima facie case were established, the State offered a racially neutral explanation for peremptorily challenging Sivels.

Defendant initially contends that because she was absent from the hearing on remand she was denied her right to be present, which affects her substantial rights. She also argues that the letter mailed to her last address was inadequate notice to her of the hearing and further “notes” that the Kane County public defender’s office, which represented her at the original trial, may not have properly represented her at the Batson hearing as it is “conceivable” she may not have qualified at the Batson hearing as indigent or she may have wanted to have another attorney.

The record shows that at the hearing on remandment the assistant public defender, who also represented her at her original trial, appeared and stated to the court that he wrote defendant at her last known address and indicated the hearing would be held on that day. He further stated that he assumed she received the letter and had elected not to appear. He waived her presence. On this record, we cannot determine whether defendant- was notified or not or whether she wanted other counsel. Whether there are facts outside the record which might show a substantial denial of her constitutional rights in this regard is a matter that may lie within the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.). Even assuming defendant was not notified of the remandment proceeding, we find no denial of her substantial rights.

In examining defendant’s argument that she was denied her right to be present, which affects her substantial rights, we perceive this contention to be in the context of the due process clause of the fourteenth amendment of the United States Constitution (U.S. Const., amend. XIV) and to article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, §2). (See Snyder v. Massachusetts (1934), 291 U.S. 97, 78 L. Ed. 674, 54 S. Ct. 330; People v. Martine (1985), 106 Ill. 2d 429, 439-40, 478 N.E.2d 262.) The defendant’s right to be present during her trial is violated only when the exclusion occurs at a time when the trial court is conducting a hearing involving defendant’s substantial rights. (Martine, 106 Ill. 2d at 439, 478 N.E.2d at 266.) Thus, a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure. Kentucky v. Stincer (1987), 482 U.S. 730, 745, 96 L. Ed. 2d 631, 647, 107 S. Ct. 2658, 2667; see also People v. Kubat (1983), 94 Ill. 2d 437, 493-94, 447 N.E.2d 247.

The proceeding on remand consisted of legal arguments and statements by counsel with reference to the record in the original hearing. New evidence was not offered by either side. While defendant has speculated on appeal that her absence foreclosed her from perhaps suggesting other persons who were present during the voir dire who might testify to the demeanor of the jurors or that she might testify to the events during the original voir dire, we find this contention without merit. Defendant has not contended that her counsel was ineffective for failure to call any witnesses, and, considering that our remandment order did not direct a new Batson hearing, but permitted the presentation of additional evidence by defendant, we find her right of due process was not violated by her absence from the hearing on remand as there is no indication defendant could have done or gained anything by being present. (See United States v. Gagnon (1985), 470 U.S. 522, 527, 84 L. Ed. 2d 486, 490, 105 S. Ct. 1482, 1485.) The record of the original voir dire, and the arguments thereon at the hearing on remand, were sufficient to present the issue of purposeful discrimination in jury selection by the prosecutor, as the main fault in the original proceeding was the trial court’s failure to evaluate and make findings according to the standards set forth in Batson. We, accordingly, find no due process violation on remandment under the circumstances of this case.

Turning to the merits of the trial court’s decision on remand, we first observe that the trial court’s determination that a defendant has failed to establish a prima facie case of purposeful discrimination is a finding of fact and will not be overturned unless it is found to be against the manifest weight of the evidence. (People v. Brisbon (1989), 129 Ill. 2d 200, 231.) To establish a prima facie case, defendant must first establish that he is a member of a cognizable racial group and that the State has peremptorily challenged a member of that racial group. (People v. Evans (1989), 125 Ill. 2d 50, 63, 530 N.E.2d 1360.) Secondly, defendant is entitled to rely on the fact that peremptory challenges permit those to discriminate who are of a mind to do so. (Evans, 125 Ill. 2d at 63, 530 N.E.2d at 1365.) Finally, defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor peremptorily challenged a venireperson on account of his or her race. (Evans, 125 Ill. 2d at 63, 530 N.E.2d at 1365.) Defendant has met the first element, and, therefore, we need only determine whether, considering all relevant circumstances, defendant has established a prima facie case of discrimination.

Relevant circumstances the trial court may consider in determining whether there is discrimination include: a “pattern” of strikes against black jurors; the prosecutor’s questions and statements during voir dire examination and in exercising his challenges; the disproportionate use of peremptory challenges against blacks; the level of black representation in the venire as compared to the jury; whether the excluded blacks were a heterogeneous group sharing race as their only common characteristic; and the race of the defendant, victim, and witnesses. (Evans, 125 Ill. 2d at 63-64, 530 N.E.2d at 1365.) Such factors are not exhaustive, and the trial court should look to all relevant circumstances in assessing whether the prosecutor’s use of peremptory challenges establishes a prima facie case of discrimination. (People v. Jones (1989), 177 Ill. App. 3d 663, 669, 532 N.E.2d 543; see Batson v. Kentucky (1986), 476 U.S. 79, 97, 90 L. Ed. 2d 69, 88, 106 S. Ct. 1712, 1723; Evans, 125 Ill. 2d at 63, 530 N.E.2d at 1365.) Furthermore, trial judges are in the best position to make this determination because they are familiar with local conditions and prosecutors and can draw upon their powers of observation and judicial experience as a guide in distinguishing a true case of discrimination from a false one. Evans, 125 Ill. 2d at 66-67, 530 N.E.2d at 1366-67.

Here, defendant argues that the circumstances relevant to the prima facie case of discrimination are based on Sivels’ friendship with a police officer, his being a victim of a burglary, and his prior experience on a civil jury, all showing that he was a favorable juror for the State and, thus, there is a reasonable inference of discrimination due to the State’s peremptory challenge of Sivels. Defendant also relies on the fact that Sivels was the only black on the venire. Although the State raised a question at the hearing on remand as to whether Sivels was the only black member of the venire, we will assume that to be the case for purposes of our analysis.

As we noted in our original opinion in this case, the fact that the prosecution eliminates all members of defendant’s race from the venire is merely one relevant factor in determinating whether a defendant has established a prima facie case of discrimination. (Jones, 177 Ill. App. 3d at 669, 532 N.E.2d at 546.) Neither are we persuaded by the fact that Sivels arguably appeared to be a “favorable” juror for the State. The fact that Sivels was a friend of a police officer, a prior burglary victim himself, and a juror in a civil trial, does not necessarily lead to the conclusion that Sivels would be more favorable to the State. More importantly, even if Sivels might be considered to be more favorable to the State, the fact that the State peremptorily challenged him does not create an inference of discrimination. As defendant does not point to any other relevant circumstances, including those set forth in Evans, that would establish a prima facie case, nor do we identify any from the record, the trial court’s determination that defendant did not establish a prima facie case of discrimination is not against the manifest weight of the evidence. We are further persuaded by the trial court’s consideration of the relevant circumstances in light of its own experience with and familiarity of local prosecutorial practices as well as its past observations of the particular prosecutor in this case. See People v. Mahaffey (1989), 128 Ill. 2d 388, 415; Evans, 125 Ill. 2d at 67, 530 N.E.2d at 1367.

Although Batson requires that a defendant establish a prima facie case of discrimination before the prosecutor is required to articulate his racially neutral explanation (Evans, 125 Ill. 2d at 68-69, 530 N.E.2d at 1367), the trial court, on remand, allowed the State to go forward with its racially neutral explanations prior to ruling on whether defendant established a prima facie case of discrimination. The record does not show prejudice to the defendant, nor does it indicate that the trial judge was confused over his responsibilities under Batson in the hearing on remand. Although we perceive no error in proceeding in this fashion in this case, this is not the recommended procedure as set forth in Batson.

Even if we determined that defendant established a prima facie case here, we would still affirm the trial court based on its ruling that the State offered a racially neutral reason for its peremptory challenge of Sivels. The trial court’s finding that the State has provided racially neutral reasons for its peremptory challenge of a member of defendant’s race will not be reversed unless it is against the manifest weight of the evidence. (People v. McDonald (1988), 125 Ill. 2d 182, 199, 530 N.E.2d 1351.) The State points to two reasons for its peremptory challenge of Sivels, the first of which we find dispositive of this issue.

The State maintains that it peremptorily challenged Sivels because of his hesitancy in answering a question regarding drug use and drug sales. The trial court found that, based on its recollection and on its review of the record, Sivels had hesitated before answering the question. Hesitancy in answering is a racially neutral reason for excusing a black juror. (People v. Young (1989), 128 Ill. 2d 1, 28; People v. Taylor (1988), 171 Ill. App. 3d 261, 268, 524 N.E.2d 1216.) This is particularly true in light of the trial court’s determination, based on its observation of Sivels, that Sivels had hesitated in answering the question. See Young, 128 Ill. 2d at 28; Taylor, 171 Ill. App. 3d at 269, 524 N.E.2d at 1221.

Defendant argues, however, that hesitancy in answering a single question is an insufficient racially neutral reason for striking a juror. The critical inquiry, however, is not the number of questions to which a particular venireperson hesitates, but whether that venireperson has displayed, through his demeanor or manner of answering a question, a bias against the State. (See Young, 128 Ill. 2d at 28.) If the trial court, in its observation of the venireperson, determines that he or she has demonstrated a bias or predisposition against the State, then it may accept that as a racially neutral reason for peremptorily challenging that venireperson. Hesitancy in answering a question about drug use and sales might certainly indicate a bias against the State or, at the very least, a reluctance to convict on a drug-related charge. Under the circumstances present in this case, the trial court’s finding that the State excused Sivels for a racially neutral reason is not against the manifest weight of the evidence. Because of our disposition of this issue, we need not address the question of whether Sivels’ former duty as a juror in a civil case constitutes a racially neutral reason for using a peremptory challenge to excuse him.

Finally, we address defendant’s contention that the trial court improperly delegated its authority to sentence by ordering her to undergo drug and alcohol evaluation and to comply with any recommended treatment. Section 5 — 6—3(b)(4) of the Unified Code of Corrections states:

“§5 — 6—3. Conditions of Probation and of Conditional Discharge. * * *
(b) The Court may in addition to other reasonable conditions relating to the nature of the offense or the rehabilitation of the defendant as determined for each defendant in the proper discretion of the Court require that the person: * * *
(4) undergo medical, psychological or psychiatric treatment; or treatment for drug addiction or alcoholism ***.” Ill. Rev. Stat. 1987, ch. 38, par. 1005-6-3(b)(4).

Determination of the terms and conditions of probation is a judicial function. (People v. Love (1980), 83 Ill. App. 3d 948, 950-51, 404 N.E.2d 1085; see also People v. Brouhard (1972), 53 Ill. 2d 109, 113-14, 290 N.E.2d 206.) The trial court here, however, did not delegate its authority to determine the terms of probation. Rather, the terms of probation, which were set by the trial court, required defendant to undergo a drug and alcohol evaluation and to comply with any recommended treatment. The order did not delegate to the diagnostic center the determination of whether defendant should be evaluated or whether defendant should comply with any recommended treatment, but merely left to its determination the assessment of what, if any, treatment would benefit defendant. Due to the nature of this condition of probation, leaving determination of the recommended treatment to the diagnostic center was not an improper delegation of judicial authority. (Cf. People v. Williams (1981), 96 Ill. App. 3d 588, 590-91, 421 N.E.2d 1039.) Moreover, defendant did not object below to her treatment ordered by the court to be determined upon the evaluation of the Kane County Diagnostic Center. Of course, the conditions of probation may be modified by the court on motion of the defendant if the defendant contends the treatment is not appropriate. See Ill. Rev. Stat. 1987, ch. 38, par. 1005-6-4(f).

We affirm the judgment of the circuit court of Kane County.

Affirmed.

UNVERZAGT, P.J., and LINDBERG, J., concur.

      See 177 Ill. App. 3d 663.


source: Caselaw Access Project

author: JUSTICE NASH

license: Public Domain

text:
    JERRY C. GREER, Local Liquor Control Commissioner of the City of Wood Dale, Plaintiff-Appellant, v. THE ILLINOIS LIQUOR CONTROL COMMISSION et al., Defendants-Appellees.
    Second District
    No. 2-88-0429
    Opinion filed June 30, 1989.
    Rehearing denied August 1, 1989.

      John J. Zimmermann and Erwin W. Jentsch, both of Bradtke & Zimmermann, of Mount Prospect, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Valerie J. Peiler, Assistant Attorney General, of Chicago, of counsel), for appellee Illinois Liquor Control Commission.
    John J. Curry, Jr., and Thomas W. Fawell, both of Katten, Muchin & Zavis, of Chicago, for appellee Butterfield Realty Investments.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiff, Jerry Greer, acting in his capacity as the liquor control commissioner for the City of Wood Dale, seeks to appeal from a judgment of the circuit court which affirmed a decision of the Illinois Liquor Control Commission (ILCC) vacating a $4,000 fine levied by plaintiff against defendant, Brookwood Country Club. On appeal, plaintiff contends that the ILCC’s decision was against the manifest weight of the evidence. For the reasons set forth below, we dismiss the appeal.

On May 15, 1986, plaintiff issued a notice of hearing to the Brook-wood Country Club, directing the club to show cause why it should not have its liquor license suspended or revoked because it had renovated its clubhouse and failed to obtain from the City of Wood Dale building, zoning, and occupancy permits required by the municipal code. The club admitted to the violations, and plaintiff fined it $4,000.

The club appealed the fine to the ILCC, which held that plaintiff’s order was valid in all respects except for the fine, which ILCC vacated. Plaintiff’s petition for rehearing was denied, and he filed a complaint for administrative review in the circuit court of Du Page County. The trial court found that the decision of the ILCC was not against the manifest weight of the evidence and affirmed it. Plaintiff now seeks further review by this court.

As a reviewing court, we have a duty to determine whether we have jurisdiction to entertain an appeal. (Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 539, 470 N.E.2d 290, 292.) If a trial court did not have jurisdiction, the parties cannot confer jurisdiction on a reviewing court merely by taking an appeal. (In re Estate of Randell (1973), 12 Ill. App. 3d 640, 641, 298 N.E.2d 735, 736.) We find that as the trial court lacked jurisdiction to hear this case, we do not have jurisdiction to review its decision and must dismiss the appeal.

A circuit court has the power to review administrative actions only as provided by law (Ill. Const. 1970, art. VI, §9), and article III of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 3 — 101 through 3 — 112) sets out the procedure for such administrative review. In most cases, jurisdiction to initially review a final administrative decision is vested in the circuit court. (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 104.) An administrative decision is defined as “any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties.” (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 101.) The right to seek review of an administrative decision is limited to parties of record in the proceeding whose rights, privileges or duties are affected by the decision. O’Hare International Bank v. Zoning Board of Appeals (1972), 8 Ill. App. 3d 764, 766, 291 N.E.2d 349, 351.

If a court’s power is controlled by statute, the court is governed by the limited grant of jurisdiction, and, to invoke the court’s jurisdiction in a limited area, all the necessary elements required by statute must be present. (Brown v. VanKeuren (1930), 340 Ill. 118, 120, 172 N.E. 1, 3.) In the present case, we must determine whether a local liquor commissioner can be considered as a party of record whose rights, duties or privileges are affected by the reversal, in whole or part, of the liquor commissioner’s decision by the Illinois Liquor Control Commission so as to permit the commissioner to seek judicial review.

In Speck v. Zoning Board of Appeals (1982), 89 Ill. 2d 482, 433 N.E.2d 685, our supreme court determined that a zoning board of appeals did not have standing to pursue an appeal from a circuit court judgment which reversed a decision of the board. The court concluded that the zoning board lacked standing to appeal because it had not been given a statutory grant of authority to do so and that the board’s duty was to conduct hearings and render decisions, giving the board a quasi-judicial status. Speck, 89 Ill. 2d at 485-86, 433 N.E.2d at 687.

The Speck reasoning has been applied by this court in the context of the right of dissenting members of an administrative body to appeal a decision of that body. In Hadley v. Board of Trustees of the Firemen’s Pension Fund (1983), 113 Ill. App. 3d 866, 447 N.E.2d 958, we concluded that dissenting members of a pension board did not have standing to challenge the pension board’s final decision because the board members were part of a quasi-judicial body and the Pension Code did not give the individual board members authority to appeal. (Hadley, 113 Ill. App. 3d at 869-70, 447 N.E.2d at 961-62.) Applying Speck and Hadley to the present case leads us to conclude that the plaintiff local liquor control commissioner does not have standing to prosecute an appeal to the circuit or appellate court from a decision of the Illinois Liquor Control Commission.

The plaintiff is the local liquor control commissioner for the City of Wood Dale. Article IV of the Liquor Control Act of 1934 (Act) (Ill. Rev. Stat. 1985, ch. 43, pars. 110 through 114a) sets out the powers and duties of a local liquor control commissioner who is empowered to receive and act upon complaints from citizens. (Ill. Rev. Stat. 1985, ch. 43, par. 112(5).) Other provisions authorize the commissioner to conduct hearings on a complaint (Ill. Rev. Stat. 1985, ch. 43, par. 151) and require him to follow certain procedures in conducting such hearings (Ill. Rev. Stat. 1985, ch. 43, par. 149). Appeals from a decision of the local liquor control commissioner may be taken to the State Commission by any resident under the jurisdiction of the local commissioner or any person interested. (Ill. Rev. Stat. 1985, ch. 43, par. 153.) It seems clear that, under the statute, the commissioner exercises quasi-judicial powers and that the legislative scheme for review of the local commissioner’s decisions does not contemplate that he should appeal either from or in support of his own decision.

We note that both Wood Dale’s liquor control ordinances and the statute give the local commissioner the power to initiate complaints, and that the complaint in the present case was brought by the commissioner. However, this power is similar to a court’s power to sua sponte issue a rule to show cause. The court’s action in issuing a rule does not make it a litigant, and the local commissioner’s action in filing a complaint does not detract from his primary function as a quasi-judicial body, and, as such, he may not appeal from a reversal of his decision by the State liquor control commission.

However, Speck also holds that a quasi-judicial body may appeal if statutorily authorized to do so (89 Ill. 2d at 485), and section 7 — 9 of the Act (Ill. Rev. Stat. 1985, ch. 43, par. 153) sets out procedures for appealing the decision of a local commissioner to the ILCC. If the ILCC finds that the local commissioner’s decision was incorrect, “[a] certified copy of the order shall be transmitted to the particular liquor control commissioner and it shall be the duty of the local liquor control commissioner to take such action as may be necessary to conform with the order.” (Ill. Rev. Stat. 1985, ch. 43, par. 153.) The commissioner is thus directed to conform to the terms of the ILCC order, and no provision is made in the Act for the local commissioner to appeal that decision. While not deciding the question whether a municipal ordinance would be sufficient to give the commissioner standing, we note that Wood Dale’s liquor control ordinance does not purport to give the local commissioner the authority to file a complaint for administrative review of a decision of the ILCC.

In summation, the local liquor control commissioner is not a party aggrieved by reversal of his own administrative decision by the ILCC because he is a quasi-judicial body and has not been given a statutory grant of authority to seek administrative review. Thus, the commissioner does not have standing to file a complaint for such review in the circuit court. Because the statutory grant of jurisdiction to the circuit court to review administrative decisions is limited, all elements of the empowering statute must be met in order to vest the circuit court with jurisdiction. In this case, the party-aggrieved element has not been satisfied, and as the circuit court did not have jurisdiction, its judgment must be vacated. As this court lacks jurisdiction to consider the merits of the appeal, it must be dismissed.

Appeal dismissed.

DUNN and REINHARD, JJ., concur.


author: JUSTICE DUNN

text:
    SHARON KAZALE, Indiv. and as Mother and Next Friend of Jeffrey Kazale, a Minor, Plaintiff-Appellant, v. KAR-LEE FLOWERS et al., Defendants-Appellees.
    Second District
    No. 2-88-1092
    Opinion filed June 30, 1989.

      Glenn J. Jazwiec, of Miller, Feda & Brown, of Elgin (Howard S. Miller, of counsel), for appellant.
    Thomas K. Hanekamp, of Tressler, Soderstrom, Maloney & Priess, of Wheaton (Brian P. Shaughnessy, of counsel), for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Sharon Kazale, brought suit against defendants, Kar-Lee Flowers and Christopher Musial, for damages suffered from a car accident. She appeals from an order of the trial court enforcing a settlement of the suit. She raises three issues: (1) whether the court erred in enforcing the settlement agreement where defendant failed to state a cause of action for enforcement and where defendant failed to prove that plaintiff’s attorney had authority to settle; (2) whether the court erred in denying plaintiff’s motion for reconsideration; and (3) whether the court erred in not allowing plaintiff to testify in support of her motion to reconsider. For the reasons stated below, we reverse.

The facts adduced at the hearing on defendant’s motion to enforce a settlement are summarized as follows.

Defendant’s attorney testified that, in October 1987, he attended a pretrial of the case after which plaintiff’s attorney demanded $3,500. In January 1988, defendant’s attorney began settlement negotiations with another attorney from the same law office representing plaintiff. He offered plaintiff’s attorney $1,800 to settle. Plaintiff’s counsel replied that the amount was insufficient. On January 12, plaintiff’s attorney demanded $2,200, and defendant’s attorney agreed to pay this amount. This agreement was made over the phone. On January 14, defendant’s attorney sent plaintiff’s attorney a letter confirming that the case was settled and sent releases to be signed by plaintiff. On January 15, the case was up for hearing on defendant’s motion for summary judgment. Defendant advised the court the case was settled. No one representing plaintiff appeared at this hearing. On January 29, defendant’s counsel received a phone call from plaintiff’s attorney stating that plaintiff would not sign the release. Defendant’s attorney testified that plaintiff’s attorney never stated when he agreed to the settlement that he was acting without plaintiff’s authority or that the agreement was contingent on his client accepting.

Plaintiff’s attorney, called to testify by defendant, testified he told defendant’s attorney that the settlement was contingent on plaintiff agreeing to it. Plaintiff’s attorney admitted receiving defense counsel’s January 14 letter confirming the settlement agreement, which did not state that the agreement was contingent on plaintiff’s acceptance. He did not respond to this letter until January 29 because he was trying to get his client to agree to the offer. He testified also that another attorney from the law office representing defendant called on January 15 to inquire about the case. Plaintiff’s attorney told him there was a tentative settlement subject to plaintiff accepting and signing the release.

After the testimony of plaintiff’s and defendant’s attorneys, defendant rested, and plaintiff presented no evidence. The trial court granted defendant’s motion to enforce the settlement, finding that plaintiff’s attorney accepted the settlement as plaintiff's agent.

Plaintiff first contends defendant failed to state a cause of action in its motion to enforce the settlement agreement. The motion alleged a settlement agreement had been reached with plaintiff’s attorney that plaintiff now refused to honor. Plaintiff cites Thornberry v. Board of Education (1972), 8 Ill. App. 3d 351, 353, which sets out the elements the pleading must allege: (1) liability of the defendant; (2) agreement concerning the amount to be paid; and (3) acceptance of the agreement in settlement of the original dispute. But, plaintiff fails to tell this court on what basis defendant’s motion is defective. It may be plaintiff means to rely on the fact that the motion did not make a statement of liability. This court need not speculate on plaintiff’s meaning here, however, since the record shows that this issue was not raised below. Thus, the issue is waived. Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 499-500.

Next, plaintiff alleges defendant failed to carry its burden of proof to demonstrate that a settlement agreement had been negotiated.

Settlement agreements are to be encouraged and given full force and effect. (People ex rel. Skinner v. Scott (1988), 172 Ill. App. 3d 790, 797-98.) A settlement agreement is binding so long as there is clearly an offer to compromise and an acceptance, and there is a meeting of the minds as to the terms of the agreement. (Skinner, 172 Ill. App. 3d 790.) An attorney may bind a client to a settlement agreement (Knisley v. City of Jacksonville (1986), 147 Ill. App. 3d 116, 120; Sheffield Poly-Glaz, Inc. v. Humboldt Glass Co. (1976), 42 Ill. App. 3d 865, 869), and a settlement agreement based on an oral agreement is enforceable (Sheffield Poly-Glaz, Inc., 42 Ill. App. 3d at 868; Zamouski v. Gerrard (1971), 1 Ill. App. 3d 890, 895). An attorney authorized to represent a client in litigation, however, does not necessarily have authority to conclude a settlement. (Knisley, 147 Ill. App. 3d at 120; Danziger v. Pittsfield Shoe Co. (1903), 204 Ill. 145, 149; Jones v. Engel (1953), 349 Ill. App. 423.) The attorney must have express consent or authorization to conclude a settlement. McAllister v. Hayes (1988), 165 Ill. App. 3d 426, 428; Knisley, 147 Ill. App. 3d at 120; Danziger, 204 Ill. at 149.

Plaintiff contends defendant presented no evidence to establish that her attorney had authority to settle the claim. Defendant cites Szymkowski v. Szymkowski (1982), 104 Ill. App. 3d 630, 633, which holds that where a settlement occurs in open court, the existence of the attorney of record’s authority to settle is presumed unless rebutted by affirmative evidence showing that authority is lacking. (Szymkowski, 104 Ill. App. 3d at 633.) In Szymkowski the court upheld a settlement agreement that was made in open court in the presence of the client. (Szymkowski, 104 Ill. App. 3d at 633.) The law set out in Szymkowski is not applicable here, however, since the evidence clearly shows that this was not a settlement in open court. Here, the attorneys came to an agreement over the phone. There is no case law which holds that an attorney’s authority to settle is presumed in settlements outside of court. There is, however, case law which holds to the contrary. In Danziger v. Pittsfield Shoe Co. (1903), 204 Ill. 145, 149, the Illinois Supreme Court stated:

“The authority of an attorney to prosecute a suit does not involve authority to compromise it. Before an attorney can compromise a suit, he must have a special authority for that purpose. [Citation.] Where an attorney, employed to prosecute or defend a suit, makes an agreement for the settlement of the same out of court, and without making the agreement a part of the decree or judgment in the suit, the client will not be bound by such agreement, or settlement, without proof of authority in the attorney to bind the client, or acquiescence on the part of the client after knowledge of the facts; and, in such case, there is no presumption of authority, but the burden of proof rests on the party, alleging authority, to show that fact.”

Defendant argues Danziger is no longer good authority because it is an old case and the development of the law since renders it inapplicable. Defendant fails to specifically explain why Danziger is bad law and cites no case law which overrules it. There does not appear to be authority for overruling Danziger. The case law cited by defendant does not address the issue in Danziger, whether, where there is no proof that a client’s attorney had authority to settle, a client may be bound by his attorney’s settlement made outside of court. Defendant cites Blaylock v. Toledo, Peoria & Western R.R. Co. (1976), 43 Ill. App. 3d 35, 37, for the general proposition that once evidence is presented to show that a settlement agreement has been reached, there is a presumption as to the validity of the agreement and the burden shifts to the opponent to show the agreement invalid. This general rule does not overrule Danziger. In Blaylock, the client was present during the settlement negotiations and signed a release. Thus, there was no question of an attorney’s authority to settle. It was clear in Blaylock that the plaintiff had agreed to a settlement, but plaintiff claimed it was reached by fraud. The court correctly held that since a settlement was established, it was up to the party challenging it to prove its invalidity. (Blaylock, 43 Ill. App. 3d at 37.) Madison Associates v. Bass (1987), 158 Ill. App. 3d 526, is distinguishable for the same reason. In Madison, there was no question of an attorney’s authority to settle since the client signed the settlement agreement. Madison, 158 Ill. App. 3d at 537.

Defendant argues that the above two cases cannot be distinguished on the basis that the settlement was signed by the principal because it is well accepted that an attorney may bind his client with an oral settlement agreement. (Zamouski, 1 Ill. App. 3d at 895.) Defendant misses the point. The reason the signatures in Blaylock and Madison distinguish those cases from this case and Danziger is because the signatures made the question of whether the attorney had authority to settle a nonissue; the client had himself settled the case, not the agent. Nor do we have a situation in this case like Szymkowski, where the authority to settle was presumed because the settlement was made in open court in the presence of the client. Here, where the attorneys agreed to settle outside of court and outside the presence of the parties, the agreement alone provides no evidence that plaintiff authorized or even had knowledge of a settlement.

Defendant contends plaintiff authorized her attorney to settle by hiring the attorney to represent her. We disagree. In County of Cook v. Schroeder (1965), 55 Ill. App. 2d 449, 462, the court held that a plaintiff, by retaining an attorney, holds out the attorney as having the authority conferred on attorneys, and defendant will be justified in dealing with that attorney until defendant receives actual notice that such authority has been revoked or limited. Furthermore, if the attorney’s acts are taken without authority, the remedy is against the attorney. (County of Cook, 55 Ill. App. 2d at 462.) In County of Cook the court held that notice of trial given to an attorney was sufficient to attribute notice to the client. (County of Cook, 55 Ill. App. 2d at 463.) This was a correct ruling because a client ordinarily confers upon her attorney authority to act as the receiver of all correspondence from the court and the opposing party, which includes notice of court proceedings. This is not so in the case of authority to settle a claim. As already stated, the law provides that this is a special authority which must be expressly conferred. Danziger, 204 Ill. at 149; McAllister, 165 Ill. App. 3d at 428.

Defendant also argues that placing the burden of proof on the movant to show express authorization would make it impossible to enforce settlement agreements. Defendant argues that an attorney for the movant would not be able to procure admissible evidence from the opposing party because the movant is prohibited from discussing the settlement agreement directly with that party. This argument is without merit. Rules of discovery and subpoena powers provide the moving party ample means to obtain evidence on the issue of authority. Defendant has, as in general agency law, the burden of proving by a preponderance of the evidence that the agent had authority to act. (Palos Bank & Trust Co. v. Kardaras (1982), 104 Ill. App. 3d 505, 511; Easterday v. Marchman (1962), 36 Ill. App. 2d 321, 327.) Evidence of the nature and extent of an agency relationship may be shown by circumstantial evidence with regard to surrounding circumstances and the acts of the parties. Szymkowski, 104 Ill. App. 3d at 633.

The evidence presented by defendant in this case does not prove by a preponderance of the evidence plaintiff’s attorney’s authority to settle the case. A summary of the evidence adduced at the hearing shows that defendant’s attorney had been negotiating with plaintiff’s attorney and that defendant’s attorney believed they had settled the case for $2,200. Plaintiff’s attorney stated he told defendant’s attorney it was conditioned on his client accepting and signing the release forms. Defendant’s attorney testified plaintiff’s counsel did not make this condition. On January 14, defendant’s counsel sent plaintiff’s counsel a letter confirming the settlement along with release forms. Plaintiff’s attorney did not notify defense counsel until January 29 that his client did not agree to the settlement.

These circumstances do not prove plaintiff’s counsel had plaintiff’s authority to conclude settlement of her case. These facts may show that the attorneys settled the case in spite of plaintiff’s attorney’s testimony to the contrary. But, this conclusion has nothing to do with the issue of plaintiff’s attorney’s authority to settle. There are no facts to show that plaintiff gave her attorney authority to settle. There are no facts to indicate plaintiff was even aware her attorney was conducting settlement negotiations. The only fact admitted into evidence that is directly, probative of the issue of authority is plaintiff’s counsel’s statement that he told defense counsel the settlement was conditioned on plaintiff accepting it. This was, however, disputed by defense counsel. It is not necessary, though, to consider this statement in resolving the issue. Defendant had the burden of proof to show authority and offered no proof to carry that burden.

We note that there is also proof showing lack of authority in the form of an affidavit sworn by plaintiff which was submitted in plaintiff’s motion to reconsider. In this affidavit, plaintiff states that she at no time gave her attorney authority to conclude a settlement of her claim. She states she was first informed of the offer made by defendant on January 28, 1988, and refused to accept it. In its brief defendant argues that the trial court properly denied consideration of this evidence. The record reveals, however, that in spite of defendant’s motion to strike the affidavit, it was admitted. The trial court denied the motion to reconsider even after admitting this evidence because it found that this evidence could have been presented at the first hearing. Regardless of the lower court’s reasoning, the affidavit is properly before this court. Thus, though it is not necessary to our decision, we note that there is affirmative uncontradicted evidence which indicates that authority was not given.

In light of our holding that defendant had the burden to prove plaintiffs attorney’s authority to settle and our finding that defendant failed to meet that burden, we find it unnecessary to resolve plaintiffs other issues. It is also unnecessary to decide defendant’s motion to strike portions of plaintiffs reply brief since the objection to the brief goes to an issue we do not decide.

The circuit court of Du Page County is reversed and the cause remanded.

Reversed and remanded.

LINDBERG and WOODWARD, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DANNY CLARK, Defendant-Appellee.
    Second District
    No. 2-88-0568
    Opinion filed June 30, 1989.

      James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Fred M. Morelli, Jr., of Law Offices of Fred M. Morelli, Jr., of Aurora, and Vincent C. Argento, of Law Offices of Vincent C. Argento, of Elgin, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

The State appeals pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)) from an order of the circuit court of Du Page County granting a motion to quash arrest and suppress evidence filed by defendant, Danny Clark.

The single issue raised is whether the circuit court erred in granting the motion to quash arrest and suppress evidence.

Defendant was charged with committing the offenses of unlawful possession of less than 15 grams of a controlled substance containing cocaine (Ill. Rev. Stat. 1987, ch. BGVz, par. 1402(b)) and unlawful possession of more than 30 grams, but not more than 500 grams, of a controlled substance containing cannabis (Ill. Rev. Stat. 1987, ch. 56x/2, par. 704(d)). Defendant subsequently filed a motion to quash his arrest and suppress the evidence seized contending that there was no probable cause to seize a “cigarette” from his automobile or to arrest him contemporaneous with the seizure without a warrant.

At the suppression hearing, defendant testified that, on February 9, 1988, at 11:45 a.m., he was driving his yellow Toyota with some friends in the City of Wood Dale. He was smoking a cigarette, which he admitted contained marijuana, and passed it to his friend in the front passenger seat. The cigarette was being smoked while he was stopped for a couple of minutes waiting for a train to pass. The hand-rolled cigarette was crumpled and lopsided and looked different from a commercial cigarette. At some point, the cigarette was passed to the passengers in the backseat. He remembered that at the time he was stopped for the train, another car was stopped directly behind him. He also recalled that at a previous stop light he had been stopped and the same car was stopped directly behind him. He admitted that the car behind him contained the person now known to him as Detective Vitek of the City of Wood Dale.

He pulled his car into a gas station to purchase gas. As he exited the car to get gas, he noticed that his car was on the wrong side of the pump and reentered it. He then heard a knock at his window and saw Detective Vitek. He rolled down the window. The detective identified himself, and told the defendant to get out of the car and to produce his license. The detective also demanded the cigarette. Defendant acknowledged that it smelled like marijuana smoke inside the vehicle. A passenger in the rear of the car gave the marijuana cigarette to Detective Vitek. Vitek told everyone else to exit the vehicle. Vitek asked defendant if there was anything else in the vehicle, and he told him some more was in the glove box.

Detective Vitek testified that at the time in question he was driving an unmarked squad car on Wood Dale Road. He stopped a foot behind a yellow Toyota with four persons in it at a red light. Vitek was seated about 10 feet from the back window of the Toyota. He then saw the driver pass a hand-rolled cigarette, which he described as not as smooth and round as a commercial cigarette, to the passenger in the front seat. He saw the cigarette being puffed and the smoke held in. The Toyota turned left and shortly thereafter stopped at a railroad crossing. He was again behind the vehicle. He saw the cigarette being passed from the front to the rear passenger area of the car and being smoked by holding the smoke in before exhaling. Detective Vitek stated that this cigarette appeared to be hand-rolled. Vitek also stated that the manner in which it was being smoked and passed around indicated to him that it was a marijuana cigarette, although he could not smell it at the time. The vehicle in front of him remained stopped for the train for about a minute, then it pulled into a gas station several hundred feet away.

Vitek followed and stopped his vehicle behind defendant’s at the service station. He had not made any effort to stop defendant up to this point. He approached the vehicle, tapped on the driver’s window, identified himself, and told the driver to open the window. Once the window was down, he smelled a strong odor of marijuana emanating from the Toyota. He asked defendant to get out of the car and for the cigarette to be given to him. A passenger in the rear seat handed the marijuana cigarette, still lit, to him. Another marijuana cigarette was given to the detective, and he then saw marijuana seeds on the floor of the car. In response to Vitek’s questions whether there was anymore, defendant told Vitek that there was more in the glove box. Officer Delcarlo, another officer assisting Vitek, found a bag of green leafy substance in the glove compartment.

On cross-examination, Vitek stated that he did not have a warrant and that the defendant had committed no traffic violations. He testified that, based upon what he observed, he determined that the car’s occupants were doing something illegal and that he would stop them to investigate and to obtain the cigarette. When he knocked at the window, he did so to investigate and to obtain the cigarette. He acknowledged that there are hand-rolled cigarettes that do not contain marijuana, having seen them on television.

Both parties stipulated that, if Officer Delcarlo were to testify, he would state that he entered defendant’s vehicle and removed some contraband from the glove compartment pursuant to Vitek’s direction.

The trial court granted defendant’s motion to quash and suppress evidence finding, in pertinent part:

“The only observation made by the arresting officer was a cigarette having been passed among the occupants of the motor vehicle. All case law at this point indicates this is not a violation of the law. No search warrant nor arrest warrants were presented. The window was rolled up, hence, no smell of marijuana was detected by the arresting officer. The Court, under the facts presented, finds there was no reasonable basis for the actions taken by the police officer.
The subsequent observations and the search of the motor vehicle was [sic] without consent and was [sic] in violation of the Constitional [sic] rights of the defendant.”

The State contends on appeal that the police officer’s action in having the defendant roll down the vehicle window was based on articulable facts justifying an investigation and detention. The State has not argued that the facts were sufficient to justify a warrantless arrest, and, accordingly, we have no occasion to address that separate question.

A trial court’s ruling on a motion to suppress will not be disturbed unless it is manifestly erroneous. (People v. Gacho (1988), 122 Ill. 2d 221, 237, 522 N.E.2d 1146.) Although the parties focus on whether the police officer’s approaching defendant’s vehicle, knocking on the window, and requesting defendant to roll the window down was based on a reasonable articulable suspicion to detain defendant for investigative purposes under the principles formulated in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, we must first examine whether these actions constitute a seizure in this case. For if there was no seizure, then the fourth amendment was not implicated at that point. See Florida v. Royer (1983), 460 U.S. 491, 497-98, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324; United States v. Mendenhall (1980), 446 U.S. 544, 552-53, 64 L. Ed. 2d 497, 508-09, 100 S. Ct. 1870, 1876.

The purpose of the fourth amendment is not to eliminate all contact between the police and citizens, and as long as the person to whom questions are put remains free to disregard the questions and walk away, there is no intrusion upon that person’s liberty or privacy which would require some particularized and objective justification. (Mendenhall, 446 U.S. at 553-54, 64 L. Ed. 2d at 509, 100 S. Ct. at 1876.) A person has been seized within the meaning of the fourth amendment only when, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Royer, 460 U.S. at 501-02, 75 L. Ed. 2d at 239, 103 S. Ct. at 1326; Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877.

The fourth amendment is not implicated where the police merely approach an individual on the street or in a public place and ask him if he is willing to answer questions, or put questions to him if the person is willing to listen. (Royer, 460 U.S. at 497, 75 L. Ed. 2d at 236, 103 S. Ct. at 1324.) The fact that a police officer identifies himself as such does not, without more, convert the encounter into a seizure. (Royer, 460 U.S. at 497, 75 L. Ed. 2d at 236, 103 S. Ct. at 1324.) A person approached by the police need not listen to or answer any questions and may go on his way, and his refusal to listen to or answer questions does not, without more, furnish reasonable, objective grounds to detain him, even momentarily. (Royer, 460 U.S. at 497-98, 75 L. Ed. 2d at 236, 103 S. Ct. at 1324.) Examples of circumstances which might indicate a seizure would be the threatening presence of several police officers, the display of a weapon by an officer, some physical touching of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. (Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877.) Of course, these are only examples, and we must examine all of the circumstances in determining whether the person reasonably believed he was free to go.

In this case it is uncontested that the officer took no action designed to stop defendant while defendant drove his vehicle. The officer merely followed defendant in an unmarked squad car until defendant drove into a service station and parked at a pump. The officer did not activate any emergency lights or siren or engage in any other conduct to effectuate a stop. Defendant testified that he drove into and parked at the service station voluntarily and not at the direction of the officer. Thus, the only question we need answer is whether the officer’s approaching defendant’s vehicle, tapping on the window, identifying himself as a police officer, and indicating to defendant to roll down the window constitutes a seizure within the meaning of the fourth amendment.

Professor Wayne R. LaFave in his respected treatise on the fourth amendment states that “the mere approach and questioning of such persons does not constitute a seizure,” and “[t]he result is not otherwise when the officer utilizes some generally accepted means of gaining the attention of the vehicle occupant or encouraging him to eliminate any barrier to conversation” such as the officer tapping on the window. (3 W. LaFave, Search & Seizure §9.2(h), at 415-16 (2d ed. 1987).) “A request that the suspect open the door or roll down the window would seem equally permissible, but the same would not be true of an order that he do so.” 3 W. LaFave, Search & Seizure §9.2(h), at 416 (2d ed. 1987).

The evidence does not show that the officer demanded or ordered defendant to roll down the window or that he used any language or voice intonations indicating that compliance with his request might be compelled. The officer merely tapped on the window, identified himself, and said to open it. According to defendant, he rolled down the window when the officer tapped on it, but he did not testify that the officer told him to open it. Further, the officer did not indicate to defendant that he was suspected of any wrongdoing which might have led defendant to believe he was not free to go. (See Royer, 460 U.S. at 501, 75 L. Ed. 2d at 239, 103 S. Ct. at 1326.) While the subjective intention of the officer in approaching the vehicle admittedly was to investigate and to obtain the cigarette, this subjective, uncommunicated intent is irrelevant even if his intent was to detain the defendant. (Mendenhall, 446 U.S. at 554 n.6, 64 L. Ed. 2d at 509 n.6, 100 S. Ct. at 1877 n.6; see also People v. Hoskins (1984), 101 Ill. 2d 209, 213-14, 461 N.E.2d 941.) Under these circumstances, a reasonable person would have believed that he was free to disregard the officer’s request to roll down the window and was free to leave. In a motion to suppress, defendant bears the burden to establish that the seizure was unreasonable. (People v. Neal (1985), 109 Ill. 2d 216, 218, 486 N.E.2d 898.) As defendant has failed initially to show a seizure has occurred, he has not met this burden.

Of course, had the officer taken steps to compel defendant to open the window or to indicate that he was not free to leave our conclusion would be different. As there was no seizure of defendant under these circumstances, there was no implication of the fourth amendment. Once defendant rolled down the window and the officer smelled the marijuana, then, together with the circumstances already observed by him of the hand-rolled cigarette and the way it was smoked and passed among the occupants of the vehicle, he had probable cause to conduct a search of defendant’s vehicle. (See People v. Stout (1985), 106 Ill. 2d 77, 87, 477 N.E.2d 498.) Consequently, the trial court’s suppression of the evidence and quashing of the arrest was manifestly erroneous.

Even assuming Detective Vitek’s conduct did rise to the level of a fourth amendment seizure, such detention was based on reasonable suspicion that defendant was involved in criminal activity. Section 107 — 14 of the Code of Criminal Procedure of 1963 provides that a peace officer may stop a person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is, has, or is about to commit an offense. (Ill. Rev. Stat. 1987, ch. 38, par. 107 — 14.) This codification reflects the principles established in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. People v. Long (1983), 99 Ill. 2d 219, 228, 457 N.E.2d 1252.

In Terry, the Supreme Court recognized a limited exception to the probable cause requirement which allows a police officer, under appropriate circumstances and in an appropriate manner, to briefly detain a person for investigatory purposes and, if necessary for safety, to conduct a limited protective search of that person for concealed weapons. (Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883.) Specific and articulable facts, and not a mere hunch, must exist to justify a Terry stop and a frisk for a weapon. (Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883.) Facts and circumstances, which if viewed separately might constitute innocent behavior, may provide reasonable suspicion justifying a Terry stop when considered in their entirety. (United States v. Sokolow (1989), 490 U.S._, 104 L. Ed. 2d 1, 11-12, 109 S. Ct. 1581, 1586-87.) The underlying inquiry in any Terry-type situation is whether the police officer’s conduct is reasonable under the circumstances known to the officer at the time he initiated the stop and frisk. (See Adams v. Williams (1972), 407 U.S. 143, 148, 32 L. Ed. 2d 612, 618, 92 S. Ct. 1921, 1924; Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883; People v. Long (1983), 99 Ill. 2d 219, 227-28, 457 N.E.2d 1252.) In order for the police to justify a temporary detention and frisk for weapons, the officer must point to specific, articulable facts which, when taken together with natural inferences, make the intrusion reasonable. People v. Smithers (1980), 83 Ill. 2d 430, 435-36, 415 N.E.2d 327.

Here, the officer observed, at a distance of approximately 10 feet and during daylight hours, defendant smoke a hand-rolled cigarette and then pass the cigarette to the passenger in the front seat, who smoked the cigarette and in turn passed it to one of two passengers in the backseat. He described the cigarette as being hand-rolled, not smooth and round. The officer also observed defendant and various passengers inhale and delay in exhaling the smoke. The officer made these observations both at a red light and a short time later while defendant’s automobile was stopped at a railroad crossing. Furthermore, the officer testified that, based on his observation of the cigarette and the manner in which it was being smoked, he concluded that defendant and the occupants of the vehicle were passing around a marijuana cigarette.

These circumstances, as known to the officer, and the natural inferences drawn therefrom, provided a reasonable, articulable suspicion for the officer to have believed that defendant and the passengers in the vehicle were committing an offense. The fact that the cigarette was hand-rolled, that the occupants passed it back and forth, and that they inhaled and delayed in exhaling provides a reasonable inference that the occupants of the vehicle were smoking marijuana. Similar circumstances have been found to be indicative of marijuana use. (See, e.g., Lewis v. State (Ala. Crim. App. 1987), 518 So. 2d 214 (unique way of smoking hand-rolled cigarette); State v. Arnot (Mo. App. 1987), 724 S.W.2d 676 (hand-rolled cigarette passed around among four young men); State v. Thompson (1976), 196 Neb. 55, 241 N.W.2d 511 (smoking and passing around hand-rolled cigarette held in scissors).) Additionally, although the officer did not testify as to any specific training in or experience with illicit drug investigations, he was a 13-year veteran police officer, and, under the circumstances present here, it was reasonable for him to infer that defendant and the passengers were smoking marijuana. People v. Bierman (1987), 163 Ill. App. 3d 256, 516 N.E.2d 963, principally relied on by defendant, is factually inapposite as the only suspicious circumstance there, which was found insufficient by the appellate court to justify a search, was an officer’s testimony that he “thought” he saw rolling paper in the hands of defendant who was seated in a parked vehicle.

Because the officer had a reasonable suspicion justifying his temporary detention of defendant to conduct an investigative inquiry, he was lawfully located at the window of defendant’s vehicle when defendant opened it, and any observations he made at that time were proper. His smelling of marijuana emanating from defendant’s vehicle, coupled with his prior observations, provided the probable cause to search defendant’s vehicle. Cf. People v. Stout (1985), 106 Ill. 2d 77, 87, 477 N.E.2d 498.

Based on the foregoing, we hold that the trial court’s suppression of evidence and quashing of defendant’s arrest was manifestly erroneous.

The judgment of the circuit court of Du Page County is reversed, and this cause is remanded.

Reversed and remanded.

McLAREN and NASH, JJ., concur.


author: JUSTICE DUNN JUSTICE McLaren,

text:
    LAWRENCE B. LEVY, Plaintiff-Appellant, v. CHARLES McKIEL, Defendant-Appellee (Lake Forest Hospital, Defendant).
    Second District
    No. 2-88-0219
    Opinion filed July 7, 1989.

      McLAREN, J., dissenting.
    Paul E. Thompson, of Thompson & Thompson, of Libertyville, and Louis S. Goldstein, of Goldstein & Fluxgold, Ltd., of Chicago, for appellant.
    David J. Slawkowski and Hugh C. Griffin, both of Lord, Bissell & Brook, and John J. O’Malley, of Pope, Ballard, Shepard & Fowle, Ltd., both of Chicago, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Lawrence B. Levy, appeals from an order of the circuit court dismissing his cause of action against defendant, Charles McKiel. Plaintiff’s sole contention is that section 10.2 of the Hospital Licensing Act (Act) (Ill. Rev. Stat. 1987, ch. 11 111A, par. 151.2) should not be applied retroactively.

Plaintiff filed suit against Lake Forest Hospital (hospital) and defendant alleging that defendant induced the hospital to breach its contract with plaintiff, resulting in plaintiff’s termination of employment with the hospital. The complaint also alleged that defendant had made misrepresentations about plaintiff’s abilities as a urologist. Defendant and the hospital both moved to dismiss the actions against them pursuant to the Act (Ill. Rev. Stat. 1987, ch. 11DA, par. 151.2). The court denied the motion, stating that the statute did not have a retroactive effect. Subsequently, the court granted the dismissal in favor of defendant on a motion to reconsider on the basis of Rodriguez-Erdman v. Ravenswood Hospital Medical Center (1987), 163 Ill. App. 3d 464. Plaintiff appeals from this dismissal. The hospital is not a party to this appeal.

In August 1977, the hospital review board dismissed plaintiff from his position as a urologist in the surgery department at Lake Forest Hospital. Plaintiff alleged that the dismissal was in contravention of the hospital’s bylaws. According to the bylaws, defendant, as chairman of the department of surgery, was required to oversee plaintiff’s work. Defendant is also a urologist. Plaintiff alleged that defendant failed to fulfill his duties and actively sought plaintiff’s dismissal for defendant’s pecuniary gain by making false and misleading statements concerning plaintiff’s surgical skills. Plaintiff sued defendant for intentionally inducing the hospital to breach its contract with plaintiff and for “willfully and wantonly” making false and misleading statements causing plaintiff’s dismissal. Since these actions only contemplated civil damages as the remedy, defendant moved to dismiss the counts against him on the basis of Rodriguez-Erdman, which retroactively applied section 10.2 of the Act. Section 10.2, which was amended in 1985, provides:

“Because the candid and conscientious evaluation of clinical practices is essential to the provision of adequate hospital care, it is the policy of this State to encourage peer review by health care providers. Therefore, no hospital and no individual who is a member, agent, or employee of the hospital, hospital medical staff, hospital administrative staff, or hospital governing board shall be liable for civil damages as a result of the acts, omissions, decisions, or any other conduct of a medical utilization committee, [or] medical review committee ***, whose purpose, directly or indirectly, is internal quality control or medical study to reduce morbidity or mortality, or for improving patient care within a hospital, or the improving or benefiting of patient care and treatment ***.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 111-k, par. 151.2.

A presumption exists that an amendatory act is only intended to apply prospectively. (Rivard v. Chicago Fire Fighters Union, Local No. 2 (1988), 122 Ill. 2d 303, 309.) This presumption is rebuttable only if the act clearly indicates either by express language or necessary implication that the legislature intended a retroactive application. (Rivard, 122 Ill. 2d at 309.) The presumption does hot apply, however, to changes in procedure or remedies. (122 Ill. 2d at 310.) If an amendatory act merely affects the remedy or law of procedure, all rights of action will be enforceable under the new procedure even if they accrued prior to the change of law and the action was instituted prior to the amendment unless there is a savings clause for existing litigation. (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 390; Sostak v. Sostak (1983), 113 Ill. App. 3d 954, 960.) Changes in procedure or existing remedies will not be applied retrospectively, however, if this would result in deprivation of a vested, constitutionally protected right. Maiter, 82 Ill. 2d at 390-91.

In Rodriguez-Erdman v. Ravenswood Hospital Medical Center (1987), 163 Ill. App. 3d 464, the Appellate Court for the First District held that section 10.2 of the Act should be applied retroactively. In reaching this conclusion, the court stated as follows:

“Section 10.2 merely precludes recovery of civil damages as a remedy in cases arising out of the acts and decisions of hospitals and individuals in internal review situations. It does not, as in the cases cited by plaintiff, destroy all causes of action or take away a constitutionally protected, vested right. As stated above, limited judicial review is available in appropriate cases.” Rodriguez-Erdman, 163 Ill. App. 3d at 471.

We agree with the conclusion of the court in Rodriguez-Erdman that section 10.2 is remedial in nature and only affects one remedy for actions of hospitals and individuals in hospital internal review situations. Other remedies, such as injunctive and declaratory relief, remain available. Accordingly, the presumption in favor of prospective application of amendatory acts is not applicable. Plaintiff asserts nevertheless that section 10.2 of the Act should not be applied retroactively because this would deprive him of a vested right. There is, however, no vested right in any particular remedy or procedure. (Clouse v. Heights Finance Corp. (1987), 156 Ill. App. 3d 975, 978.) Since section 10.2 contains no savings clause, the trial court correctly ruled that the provision should be applied retroactively.

For the reasons stated above, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

WOODWARD, J., concurs.

JUSTICE McLaren,

dissenting:

I have no disagreement with the majority’s dissertation as to the law set forth in their opinion. I disagree with their conclusion that the remedies being abrogated are so insubstantial as to categorize the amendment as being procedural rather than substantive.

Legislative amendments and statutes are presumed to act prospectively since retroactivity is not favored. (Cruz v. Puerto Rican Society (1987), 154 Ill. App. 3d 72, 75; Matviuw v. Johnson (1982), 111 Ill. App. 3d 629, 632.) Statutes are deemed to operate prospectively unless the language of the statute clearly requires retroactive application. (Board of Trustees v. Burris (1987), 118 Ill. 2d 465, 476.) In the absence of such statutory language, the intent of the legislature determines whether statutes should operate prospectively or retrospectively. Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 235; DeSeve v. Ladd Enterprises, Inc. (1985), 137 Ill. App. 3d 796, 800.

The general rule does not apply when the statute or amendment only relates to procedural matters, unless the procedural rule affects or destroys a substantive, or “vested right.” (See Matviuw, 111 Ill. App. 3d at 632; Cruz, 154 Ill. App. 3d at 75.) Procedural matters are those that relate to the rules of discovery, evidence, and privilege. (Niven v. Siqueira (1985), 109 Ill. 2d 357, 364; People ex rel. Brown v. Bloodworth (1987), 155 Ill. App. 3d 901, 905.) Rights which did not exist at common law are the only rights that may be abrogated by retrospective application of an amendment. (Cruz, 154 Ill. App. 3d at 76.) Yet even when the legislature intends that an amendment have retroactive effect, the enactment should not be so applied if it would cause unjust or unreasonable results. DeSeve, 137 Ill. App. 3d at 800.

The amendment does not state that it is to have retroactive effect. Therefore, one must discern whether the legislature intended such effect. It is clear from the words of the statute that the legislature wanted to encourage doctors and other hospital personnel to report instances of inadequate treatment by doctors, nurses and technicians without the fear of a common-law tort suit. Retroactive application of this statute will not promote this legislative interest because the decision of the review board had previously been made in any case which arose before the amendment. Clearly, this statute is directed at encouraging future disclosures. Thus, I conclude that this statute should not have been applied retroactively because the amendment did not clearly, by express language or necessary implication, indicate that the legislature intended a retroactive application. Clark Oil & Refining Corp. v. Johnson (1987), 154 Ill. App. 3d 773, 781.

In addition, I disagree with the Appellate Court for the First District’s characterization of section 10.2, in Rodriguez-Erdman v. Ravenswood Hospital Medical Center (1987), 163 Ill. App. 3d 464, as affecting only a remedy and not a right. The only remedy for common-law torts is money damages. If the legislature has taken away the only remedy available, it has also taken away the right to sue in court. Clearly, the legislature intended to shield hospital personnel reporting on health care from common-law tort suits such as libel or negligence. Thus, the statute repeals the substantive right to sue. Consequently, the statute cannot apply retroactively. Thus, I respectfully dissent.


author: JUSTICE WOODWARD

text:
      In re ROBERT BLOYER (The People of the State of Illinois, Petitioner-Appellee, v. Robert Bloyer, Respondent-Appellant).
    Second District
    No. 2-88-1033
    Opinion filed June 30, 1989.
    Guardianship & Advocacy Commission, of Chicago (Elizabeth Sircher, of counsel), for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Respondent, Robert Bloyer, appeals from an order of the circuit court of Winnebago County, which continued his involuntary hospitalization with the Department of Mental Health (Department) at H. Douglas Singer Mental Health Center (Singer Center).

On appeal, respondent argues that (1) the petition to involuntarily hospitalize him was not timely filed and the certificates accompanying the petition were not properly executed; (2) his statutory and constitutional rights to an appeal and a verbatim record of the proceeding were denied; and (3) this court may properly consider issues raised for the first time on appeal when errors are readily apparent in the face of the record. Because of our decision regarding the first issue, we need not address the others raised by respondent.

The scant record reveals the following pertinent facts. Respondent, at the relevant time, was a 33-year-old male from Freeport, Illinois. He was admitted to Singer Center on April 25, 1988. On May 2, 1988, respondent was found to be a person subject to involuntary admission and was ordered hospitalized. The initial order of hospitalization was for a period of 60 days. (Ill. Rev. Stat. 1987, ch. 91V2, par. 3 — 813(a).) After the expiration of the initial order, a second petition for involuntary hospitalization was filed on July 5, 1988. On July 1, 1988, a certificate certifying that respondent was subject to involuntary admission was executed by a social worker. (Ill. Rev. Stat. 1987, ch. 9IV2, par. 3 — 702(a).) On July 5, 1988, a second certificate was executed by a psychiatrist. Both certificates were filed with the court on July 7, 1988.

On July 7, 1988, the court ordered a hearing on the second petition for involuntary hospitalization for July 11, 1988, and respondent was ordered to submit to a psychiatric examination. On July 9, 1988, a psychiatrist executed a third certificate, and it was filed with the court on July 11, 1988.

At the July 11, 1988, hearing no court reporter was present, nor was there an audio tape recording made of it. The. court below found respondent to be a person subject to involuntary hospitalization and ordered an additional period of involuntary hospitalization with the Department at the Singer Center. Ill. Rev. Stat. 1987, ch. 9IV2, par. 3 — 813(a).

Respondent initially argues that the court below erred in finding him a person subject to involuntary hospitalization when the petition to commit was not timely filed and the certificates accompanying the petition were not properly executed. Respondent asserts that the facility’s director did not comply with section 3 — 813(a) of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1987, ch. 91x/2, par. 3 — 813(a)), which states:

“An initial order for hospitalization or alternative treatment shall be for a period not to exceed 60 days. Prior to the expiration of the initial order if the facility director believes that the patient continues to be subject to involuntary admission, a new petition and 2 new certificates may be filed with the court. If a petition is filed, the facility director shall file with the court a current treatment plan which includes an evaluation of the patient’s progress and the extent to which he is benefiting from treatment. If no petition is filed prior to the expiration of the initial order, the patient shall be discharged. Following a hearing, the court may order a second period of hospitalization or alternative treatment not to exceed 60 days only if it finds that the patient continues to be subject to involuntary admission.” (Emphasis added.)

The record clearly demonstrates that the facility director did not file the petition for an additional period of involuntary hospitalization and the supporting certificate within the initial 60-day hospitalization period, which ended on July 2, 1988. Instead the. petition was filed on July 5, 1988, and certificates were filed on July 7, 1988, and July 11, 1988. Here the facility director plainly did not file the petition for an additional treatment period within the statutory limits, and, therefore, the respondent should have been discharged. The statutory requirements must be complied with. (In re Satterlee (1986), 148 Ill. App. 3d 84, 87.) “Protection of the rights of persons who may be entitled to discharge requires adherence to the statutory provision enacted for that purpose. Regardless of how busy institutional authorities may be, they must be diligent in observing these statutory requirements.” In re Smith (1986), 145 Ill. App. 3d 1002,1005.

The State’s argument that the respondent has failed to provide an adequate record and, therefore, this appeal must fail is beside the point. While there is no transcript or audio recording of the hearing on the involuntary admission, such evidence is not germane to determining this first issue. The record submitted on appeal clearly shows that the facility director did not comply with section 3 — 813(a); no further evidence is necessary to decide this appeal.

For the reasons stated above, we reverse the judgment of the circuit court.

Reversed.

LINDBERG and DUNN, JJ., concur.


author: JUSTICE INGLIS

text:
    JOSEPH A. WAITCUS et al., Plaintiffs-Appellees, v. THE VILLAGE OF GILBERTS et al., Defendants-Appellants.
    Second District
    No. 2-88-1230
    Opinion filed June 30, 1989.
    Ronald O. Roeser, of Roeser, Vucha & Carbary, of Elgin, for appellants.
    Clarence F. Wittenstrom, Jr., and Eric M. Johnson, both of Gromer, Wittenstrom & Meyer, PC., of Elgin, for appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendants, the Village of Gilberts, its president and acting trustees, appeal from an order granting plaintiffs’, certain property owners in the Gilberts Industrial District, motion for summary judgment as to count I of their complaint. On appeal, defendants contend that the complaint failed to state a cause of action, that the Village board acted properly, and that the trial court erred in granting plaintiffs’ motion for summary judgment.

In September 1986 the Village of Gilberts passed an ordinance proposing the creation of a special service area for an old industrial park where plaintiffs owned several lots. Pursuant to the procedures of “An Act to provide the manner of levying or imposing taxes for the provision of special services to areas ***” (Special Service Areas Act) (Ill. Rev. Stat. 1985, ch. 120, par. 1301 et seq.), a public meeting was held on October 15, 1986, for the purpose of hearing comments and objections to the establishment of this special service area. The October 15, 1986, hearing was adjourned to October 22, 1986, pursuant to statutory authority. (Ill. Rev. Stat. 1985, ch. 120, par. 1306.) On October 22, 1986, the hearing was again adjourned, this time to November 4,1986 (the next scheduled meeting of the Village board).

On November 4, 1986, plaintiffs attended the board meeting and requested that their properties be deleted from the special service area. The board considered petitions and heard oral arguments in support of the petitions. The board consisted of a president and six trustees. However, the president and one trustee were absent at this meeting. As shown by the minutes of this meeting, the first motion was addressed to lot numbers 1, 2 and 3. After considering the petitions, the board voted five to zero to exclude the parcels from the special service area. A second motion for deletion of lots 15, 16, 17, 18, 19 and 20 received three affirmative and two negative votes. The meeting was then adjourned.

On November 18, 1986, the next regular meeting of the Village board, the board unanimously approved the minutes of the November 4, 1986, meeting. Later in the meeting of November 18, 1986, the Village president gave his veto of the two exemption motions in question. The Village president’s written veto dated November 18, 1986, was attached to the minutes of the November 18, 1986, meeting. The veto was not called for override or reconsideration at the November 18, 1986, meeting. However, at the regular board meeting on December 2, 1986, a motion to override the veto was made and was defeated. Furthermore, the Village board passed an ordinance at the December 2 meeting establishing the special service area and again included the property of the plaintiffs in the special service area.

On July 29, 1987, plaintiffs filed a two-count complaint in the circuit court of Kane County. In count I, plaintiffs sought a declaratory judgment excluding plaintiffs’ properties from the special service area pursuant to the Village board’s resolution of November 4, 1986. In count II, plaintiffs sought a permanent injunction. The Village made a motion to strike the complaint for failure to state a cause of action. This motion was denied on February 24, 1988. In addition, defendants’ motion to dismiss the complaint was denied on April 15, 1988. On November 21, 1988, plaintiffs’ motion for summary judgment as to count I was granted, and a declaratory judgment was entered. The judgment declared that the action of the Village on November 4, 1986, which deleted plaintiffs’ property from the special service area, was still valid and binding with the full force of law. No action has been taken with respect to count II, which sought injunctive relief. This appeal followed.

The Village first contends that the complaint is not sufficient to support a judgment for the plaintiffs. The Village argues the complaint failed to allege any of the necessary elements for a declaratory judgment action, including the failure to plead the existence of an actual case or controversy or the lack of other adequate remedies. The Village contends that plaintiffs did have other adequate remedies, all of which were contained in the Special Service Areas Act.

Although neither party has questioned this court’s jurisdiction, we have a duty to raise it sua sponte and dismiss the appeal if we determine that we do not have jurisdiction. (Ferguson v. Riverside Medical Center (1986), 111 Ill. 2d 436, 440; Renzulli v. Zoning Board of Appeals (1988), 176 Ill. App. 3d 661, 662.) We find that we lack jurisdiction in this case because the order from which the appeal was taken was not final and appealable.

An appellate court may only hear appeals from final judgments or where an exception specified by the supreme court rules is applicable. (Flores v. Dugan (1982), 91 Ill. 2d 108, 112; Village of Cary v. Pavis (1988), 171 Ill. App. 3d 1072, 1073.) The order appealed in the case at bar is not a final order, and it does not fall within any exception authorized by the supreme court rules. In order to have a final and appealable order, the judgment must terminate the litigation between the parties on the merits so that if affirmed, the trial court need only execute judgment. (In re Marriage of Spizzo (1988), 168 Ill. App. 3d 487, 492; Mitrenga v. Martin (1982), 110 Ill. App. 3d 1006, 1007.) A reviewing court must decide in each case whether the judgment fully and finally disposes of the rights of the parties so that no material controverted issue remains to be determined. Wilkey v. Illinois Racing Board (1983), 96 Ill. 2d 245, 249-50.

In this case, the trial court has not ruled on count II, and therefore it is still pending. Supreme Court Rule 304(a) provides:

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court’s own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” (Emphasis added.) (107 Ill. 2d R. 304(a).)

If defendants wanted to appeal the trial court’s ruling granting plaintiffs summary judgment as to count I, they were required to request a finding “that there is no just reason for delaying enforcement or appeal” (107 Ill. 2d R. 304(a)). The absence of the required language in the trial court’s order of November 21, 1988, contravenes the requirements of Supreme Court Rule 304(a) and leaves defendants with an order that is not final and cannot be appealed.

This case is a good example of why Supreme Court Rule 341(e)(4)(ii) (122 Ill. 2d R. 341(e)(4)(h)) was enacted. Supreme Court Rule 341(e)(4)(h) requires a brief statement or explanation in the appellant’s brief under the heading of “Jurisdiction” of the basis for appeal, e.g., whether as a final judgment under Supreme Court Rule 301 or pursuant to Supreme Court Rules 304(a) or (b). 122 Ill. 2d R. 341(e)(4)(h).

The statement set forth in defendants’ brief reads:

“STATEMENT OF JURISDICTION Defendants bring this appeal under Supreme Court Rule 301 providing for an appeal of right from a final judgment of the Circuit Court.”

Such a cavalier and conclusory approach to Supreme Court Rule 341 is of no help to this court. A more helpful statement might have been given as follows:

JURISDICTION
This is an appeal from three orders of the trial court: (1) order dated February 24, 1988, denying a motion to strike the complaint; (2) order of April 15, 1988, denying motion to dismiss the complaint; and (3) order dated November 21, 1988, entering declaratory judgment on count I of the complaint. On [date], the trial court entered an order making the declaratory judgment appealable pursuant to Supreme Court Rule 304(a). Notice of appeal was filed on December 15, 1988.

If defendants had taken the time to write an explanatory statement they would have hopefully recognized that they still had a claim pending (count II) in the circuit court, and thus their appeal was pursuant to Supreme Court Rule 304(a) and not Supreme Court Rule 301. Plaintiffs accepted defendants’ conclusion that the judgment on the declaratory judgment count (count I) was final and appealable, and neither party called to this court’s attention the remaining count for a permanent injunction (count II). The case was fully briefed, and, in retrospect, all parties concerned expended unnecessary time prior to a determination that this court lacked jurisdiction.

We write these comments not to embarrass counsel, but to highlight the importance of giving thoughtful consideration to the requirements of the jurisdictional statement. The purpose of the statement is not merely to tell this court that it has jurisdiction. Instead, the brief statement or explanation was intended to provoke counsel to make an independent determination of the right to appeal prior to writing the briefs. If defendants had paused long enough to analyze jurisdiction, or plaintiffs had challenged the inadequate jurisdictional statement, everyone would have been saved work, and, most importantly, the people we all serve may have been saved expense.

The statement of jurisdiction could be written in many appropriate ways, but it should at a minimum set forth the necessary dates and other information to enable someone unacquainted with the case to make a quick analysis of jurisdiction.

We do not have jurisdiction to consider this appeal, and therefore we dismiss it.

Appeal dismissed.

NASH and DUNN, JJ., concur.