author: JUSTICE SCOTT JUSTICE GORMAN, PRESIDING JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. WILLIAM VILLARREAL, Defendant-Appellee.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BRETT E. VILLARREAL, Defendant-Appellee.
    Third District
    Nos. 3—89—0358, 3—89—0359 cons.
    Opinion filed November 27, 1990.

      GORMAN, J., concurring in part and dissenting in part.
    HEIPLE, P.J., dissenting.
    Raymond Kimbell III, State’s Attorney, of Galesburg (Gary E Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Kenneth D. Brown, of State Appellate Defender’s Office, of Ottawa, for appellees.
   JUSTICE SCOTT

delivered the opinion of the court:

Two cases from the circuit court of Knox County have been consolidated for appeal. Both cases involve the State’s appeal from orders of the trial court granting defendants’ respective motions to quash arrests and dismiss all charges.

Defendant William Villarreal was charged by criminal complaint with the offenses of resisting a peace officer and obstructing a peace officer. Defendant Brett Villarreal was charged by information with three counts of aggravated battery, two counts of obstructing a peace officer and one count of resisting a peace officer. At the hearing on defendants’ consolidated motions to quash arrest and dismiss all charges, the following evidence was presented. On July 15, 1987, both Villarreals, along with James Upson (Upson) and Jeff Curtis (Curtis), were involved in an incident at the Days Inn Motel in Galesburg, Illinois. As a result, Upson and Curtis were arrested and taken to the public safety building by Officer Thomas Camper (Officer Camper). At least one of the Villarreals accompanied Upson and Curtis to the public safety building whereupon Upson and Curtis received notices to appear and were released.

Shortly after Upson and Curtis were released, Officer Camper received a complaint that Upson had been seen knocking over a motorcycle at the Days Inn Motel. He immediately responded to the call and while approaching the Days Inn observed an off-white vehicle being driven by William Villarreal, and believing that Upson was probably in the vehicle, began following the vehicle. About one-half block from the Villarreal residence, Officer Camper activated his overhead lights. The Villarreal vehicle turned into a driveway, and the four occupants exited the car. Officer Camper, accompanied by Officer Chris Howard (Officer Howard), pulled into the driveway behind them. The four occupants in the car were identified as both Villarreals, Upson and Curtis. The Villarreals resided at that address. By the time the officers pulled into the driveway, the four had already exited the vehicle and were walking towards the front porch of the Villarreal residence. Officer Camper got out of his vehicle and indicated that he wanted to speak to Upson about an incident that had just happened at the Days Inn. The four apparently ignored Officer Camper and kept walking towards the front porch. Sometime when Upson had either entered the front porch or while he was still outside, Officer Camper yelled that Upson was under arrest. Upson, however, continued inside the Villarreal residence. At this point, Officer Camper approached the residence and attempted to gain entry. Both Villarreals resisted by telling Officer Camper that he could not enter their residence without a warrant. Officer Camper indicated that he was in “fresh pursuit” of Upson and was going to enter the residence to effectuate the arrest. A physical confrontation at the front door ensued resulting in Officer Camper pushing his way into the residence. Two other officers arrived on the scene and also entered the residence. No warrant had been issued at this time. The activity moved to the kitchen, where the other two officers arrested Upson, and while removing him, some sort of second altercation occurred resulting in the aggravated battery charges against Brett Villarreal.

At the close of the evidence, the trial court determined that the officers’ act of going into the defendants’ house against their desire transgressed the defendants’ rights under the fourth amendment. Consequently, the trial court granted defendants’ respective motions, dismissed all charges and subsequently denied the State’s motion to reconsider.

The procedural issue for review is whether the trial court erred in quashing the arrests of defendants and dismissing all charges. Substantively, the issue is whether the officers’ conduct of entering defendants’ home without a warrant or without consent to arrest a third party, under the circumstances presented, violated defendants’ respective rights under the fourth amendment. The standard for review is whether the trial court’s decision is manifestly erroneous. People v. Jones (1989), 184 Ill. App. 3d 412, 541 N.E.2d 132; People v. Stachelek (1986), 145 Ill. App. 3d 391, 495 N.E.2d 984.

Presumptively, police have no authority to enter a private dwelling to arrest a suspect without first obtaining a proper warrant. (Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371.) This presumption can be overcome if exigent circumstances are present justifying the police officers’ conduct of acting without a warrant. (Welsh v. Wisconsin (1984), 466 U.S. 740, 80 L. Ed. 2d 732, 104 S. Ct. 2091; Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371; People v. Foskey (1990), 136 Ill. 2d 66.) The State in its reply brief indicates that it is not contending that exigent circumstances justified the officers’ conduct and, therefore, we need not further consider this point. The State does, however, argue two theories as authorization for the officers’ warrantless entry into defendants’ home. First, the State argues that Officer Camper had effectively arrested Upson prior to Upson entering defendants’ home and that Officer Camper was therefore authorized to enter defendants’ home to complete the arrest. Somewhat intertwined with the first argument, the State also argues that Officer Camper was in “hot pursuit” of Upson at the time of his entry into defendants’ home. We note that many courts consider “hot pursuit” to be an exigent circumstance, but for clarity we will treat it separately herein.

An arrest involves three elements: (1) authority to arrest; (2) an assertion of that authority with the intent to affect an arrest; and (3) restraint of the person to be arrested (People v. Montgomery (1989), 179 Ill. App. 3d 330, 534 N.E.2d 651), and there is no question that warrantless arrests can be made for misdemeanor offenses. (People v. Olson (1983), 112 Ill. App. 3d 20, 444 N.E.2d 1147.) The State, without citing authority, concludes that the arrest of Upson occurred while Upson was in a public place. Although it is arguable that an arrest of Upson may have been set in motion by Officer Camper, clearly under the Montgomery analysis, an arrest had not yet been completed. The State, however, argues that under authority of United States v. Santana (1976), 427 U.S. 38, 49 L. Ed. 2d 300, 96 S. Ct. 2406, Officer Camper was justified in entering defendants’ residence to complete the arrest of Upson. In Santana, undercover policemen set up a buy of narcotics by giving marked currency to an individual who then went to Santana’s house, purchased narcotics and returned.

The police then went to Santana’s house, where they found her standing in the doorway holding a brown paper bag believed to contain narcotics. When the police pulled up to her residence, they got out and identified themselves, causing Santana to rush into her house with the paper bag. The police gave chase into her home without a warrant and arrested her for selling narcotics. They also searched the paper bag and house and found narcotics as well as recovering some of the previously marked currency. The court determined that the police properly entered Santana’s home without a warrant because the arrest had already been set in motion while Santana was in her doorway and the police were in “hot pursuit” since it was reasonable to believe that any delay would result in the destruction of evidence. The court further indicated that Santana could not retreat into her house to thwart an otherwise valid arrest. (United States v. Santana, 427 U.S. 38, 49 L. Ed. 2d 300, 96 S. Ct. 2406.) We certainly agree with the Santana decision, but find it factually distinct from the circumstances of this case. In Santana, the person whose privacy interest was being considered was the suspect. In this case, the privacy interests to be considered are those of third persons who were not being sought out for arrest. Moreover, we do not believe that the officers in this case were in “hot pursuit” of Upson. There is no indication that defendants were attempting to elude the officers in their vehicle and, in fact, no traffic citations were issued. Nor is this a situation where evidence would potentially be destroyed or the suspect would potentially elude arrest unless immediate action was taken. There were at least four officers at defendants’ home, and the possibility of Upson escaping was at most very slim. The additional burden placed on the police by obtaining a warrant was minimal.

In Steagald v. United States (1981), 451 U.S. 204, 68 L. Ed. 2d 38, 101 S. Ct. 1642, the Supreme Court held that absent consent or exigent circumstances, the entry into the home of a third party to arrest a suspect may not be done without first obtaining a proper search warrant. To hold otherwise “would create a significant potential for abuse.” (Steagald, 451 U.S. 204, 68 L. Ed. 2d 38, 101 S. Ct. 1642.) Having already determined herein that there was no consent, no exigent circumstances and no “hot pursuit,” we conclude that the officers’ entry into defendants’ home transgressed defendants’ fourth amendment rights. Moreover, it is clear that all of the charges against defendants were the result of and occurred subsequent to the officers’ unlawful entry into their home. Since there is no other independent evidence upon which to base any of these charges against defendants, they simply cannot stand. Therefore, the decision of the trial court quashing the arrests of defendants and dismissing all counts is affirmed.

Affirmed.

JUSTICE GORMAN,

concurring in part and dissenting in part:

I concur that all charges against William Villarreal should be dismissed and that the charges of obstructing and resisting a peace officer against Brett Villarreal should be dismissed. I believe that that is a result required for the reasons stated in the opinion, which addresses the problems raised by the officers’ improper entry into the Villarreal home in making the arrest of James Upson.

I disagree, however, that the three counts of aggravated battery against Brett Villarreal should be dismissed. In this case it is uncontested that Brett Villarreal was aware that the men in his house on August 19, 1988, were peace officers. The officers were engaged in an official act, that being the arrest of James Upson. Although Brett Villarreal considered the officers’ entry into the Villarreal home to be unlawful, and it was, in fact, unlawful, Brett Villarreal was without justification to use force in attempting to stop the arrest of James Upson. To hold otherwise is to declare open season on peace officers and to encourage, rather than dissuade, remedies of self-help in situations such as this.

In my view there is considerable precedent to support the position that a person may not use force to resist arrest even though the arrest is unlawful. I would suggest that this is true, whether the person is resisting his own arrest, or interfering in the arrest of another. People v. Taylor (1983), 112 Ill. App. 3d 3, 444 N.E.2d 822; People v. Taylor (1977), 53 Ill. App. 3d 810, 368 N.E.2d 950; People, v. Gnatz (1972), 8 Ill. App. 3d 396, 290 N.E.2d 392.

I believe the officer’s conduct fits clearly into the language of the aggravated battery statute which is designed to protect him in the execution of his official duties, and I don’t believe he loses the protection of the statute, even though his act of making an arrest is after what has been determined to be an unlawful entry into a private home. I believe to hold otherwise is a serious departure from the accepted precedent and would lead to the result that officers who were mistaken regarding the legality of their acts could be harmed in attempting to execute their duties with impunity without legal consequences being available against obvious wrongdoers.

Accordingly, I would reinstate the aggravated battery charges against Brett Villarreal and remand the matter to the trial court.

PRESIDING JUSTICE HEIPLE,

dissenting:

What are the simple facts of this simple case? Officer Thomas Camper followed a car to the defendants’ residence in order to arrest an occupant of the car, James Upson. The Upson car arrived just ahead of Officer Camper’s police car. Upson and the occupants of car one got out. Officer Camper got out of his police car. Upson headed up the sidewalk and towards the house. Officer Camper told him he was under arrest. Upson ignored the officer and went on into the house. Officer Camper and other policemen went on into the house and effectuated the arrest of Upson. In the process of this arrest, the defendants William and Brett Villarreal, who lived in the house, attempted to interfere with the arrest of Upson. The two defendants first blocked the officers’ entry into the house. Brett Villarreal also struck Officer Camper in the face with his fist and threw an ice chest at Officer Chris Howard.

In these consolidated appeals, defendant William Villarreal was charged with offenses of resisting a peace officer and obstructing a peace officer. Defendant Brett Villarreal was charged with three counts of aggravated battery, resisting a peace officer, and two counts of obstructing a peace officer. The trial court granted defendants’ motions to quash arrest and dismissed all charges against both defendants, finding that the police officers’ act of going into the Villarreal residence without a warrant and without the defendants’ consent violated the defendants’ rights under the fourth amendment.

Justice Scott would affirm the entire dismissal. Justice Gorman would affirm the dismissals except as to the single charge of aggravated battery against Brett Villarreal. I would reverse the trial court’s ruling in its entirety and remand the case for a hearing on the merits.

Police officers have been conferred by law with authority to make arrests, and the act of making an arrest is authorized to the extent that a person may not use force to resist or obstruct an arrest even though the arrest may be unlawful. (Ill. Rev. Stat. 1989, ch. 38, par. 107 — 7.) Here, the officer informed Upson, in the presence of the defendants, that he was under arrest before Upson retreated into the defendants’ residence. Thus, the defendants were fully aware that the men attempting to enter their home were police officers engaged in the official act of arresting James Upson.

The question raised by the defendants’ motions to quash and dismiss is not whether the police officers should have obtained a warrant. The question is, rather, whether the defendants, or either of them, had a right to physically resist and obstruct the officers’ efforts to effect an arrest upon a third party, James Upson. The defendants had no such right. Consequently, the trial court erred in granting the motions to quash and dismiss. And, the majority of this court is wrong in dismissing any or all of those charges against these two defendants.

What we have here is a situation where the trial judge and two members of this court do not like the police officers’ conduct in pushing their way into a private residence without a warrant to make an arrest of a third party. Whether one sympathizes or even agrees with such feelings, the rule of law is not to be abrogated by visceral feelings and emotions. The discussions by Justices Scott and Gorman do not change the reality of what happened here nor the rule of law applicable thereto. The trial court should be reversed in its entirety and the cause remanded for a trial on the merits.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    E.H. FLESNER et al., Plaintiffs-Appellees, v. YOUNGS DEVELOPMENT COMPANY et al., Defendants-Appellants.
    Fifth District
    No. 5—89—0531
    Opinion filed November 16, 1990.

      Richard E Record, Jr., and Paul R. Lynch, both of Craig & Craig, of Mt. Vernon, for appellants.
    John Gadau, of Zimmerly, Gadau, Selin & Otto, of Champaign, and Reino C. Lanto, of Wilson & Lanto, of Rantoul, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiffs initially filed this claim in the United States District Court on May 7, 1981, and it was dismissed on November 12, 1981, for want of jurisdiction. Plaintiffs refiled in the circuit court of Jefferson County, Illinois, on April 22, 1982, and on December 17, 1986, over defendants’ objection, the trial court allowed plaintiffs to take a voluntary dismissal.

The present litigation, the third filing against these defendants, was initiated on December 11, 1987. Defendants’ motion to dismiss the claim with prejudice was allowed on October 19, 1988, but the plaintiffs’ motion to reconsider based upon this court’s decision in Relaford v. Kyaw (1988), 173 Ill. App. 3d 1034, 527 N.E.2d 1328, was allowed on July 24, 1989. The trial court included a finding pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308) that the ruling contained in its order involved a question of law as to which there was substantial ground for difference of opinion and that an immediate appeal might materially advance the ultimate termination of the litigation. Defendants’ petition for leave to appeal was granted.

Appellant asks this court to overrule its recent decision in Relaford and to adopt instead the first district’s position which is set forth in the cases of Walicek v. Ciba-Geigy Corp. (1987), 155 Ill. App. 3d 667, 508 N.E.2d 246, and Bernstein v. Gottlieb Memorial Hospital (1989), 185 Ill. App. 3d 709, 542 N.E.2d 20. For the reasons set forth below, we decline to do so.

Before discussing the Relaford-Bernstein disagreement, we will address the plaintiffs’ contention that the defendants have waived their opportunity to challenge the refiling of this cause by failing to appeal the trial court’s order of December 17, 1986, which allowed them to voluntarily dismiss the second filing of this case. The plaintiffs argue that Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787, recognizes that such an order is final and appealable and that the defendants’ failure to appeal from it precludes their raising any challenge to the third refiling of this case. We decline to adopt the plaintiffs’ position on this point because to do so could require defendants to appeal from every voluntary dismissal taken by a plaintiff in order to prevent a subsequent refiling. While we have no actual statistics on this point, we are convinced that there are a large number of voluntary dismissals which are never refiled. To adopt the plaintiffs’ position would be to cause a grossly inefficient use of legal and judicial resources. A rule which would require appeals in all cases of voluntary dismissals in order to prevent improper refilings in only a few would be neither warranted nor wise. We therefore hold that the defendants have not waived their position by failing to appeal the trial court’s December 17, 1986, order.

The substantive issue before this court is whether a plaintiff may refile an action more than one time if the repeated filings are all within the applicable statute of limitations. Defendants’ argument proceeds on several fronts. First, defendants contend that the first district’s decisions in Walicek and Bernstein, which held that there could be only one refiling, express a preferable rule and should be followed in the fifth district. Second, defendants contend that certain statements by the supreme court in Gendek v. Jehangir (1988), 119 Ill. 2d 338, 518 N.E.2d 1051, and Gibellina v. Handley (1989), 127 Ill. 2d 122, 535 N.E.2d 858, while not controlling on this point, strongly suggest that only one refiling should be allowed. Finally, defendants contend that even if this court does not wish to adopt the Bernstein holding and overrule Relaford, Relaford should be limited to its facts, which involved a two-year statute of limitations, and should not be extended to a case involving a 10-year statute.

In Walicek the first complaint was filed on September 25, 1978, and was dismissed for want of prosecution on May 22, 1980. Plaintiffs second complaint was filed on February 8, 1982, and voluntarily dismissed on March 10, 1983. The statute of limitations for plaintiffs cause of action expired on April 17, 1982. Plaintiff’s third complaint was filed on June 6, 1983, and defendants’ motion to dismiss the plaintiffs third complaint based on the statute of limitations was denied, but the question involved was certified by the trial court.

The first district stated:

“Accordingly, in answer to the certified question, we hold that section 13 — 217 does not allow the filing of a third complaint after the applicable statute of limitations has expired when the first complaint had been dismissed for want of prosecution and the second complaint filed within the statute of limitations was voluntarily dismissed after the statute of limitations expired.” (Walicek, 155 Ill. App. 3d at 673, 508 N.E.2d at 250.)

While it might be argued that Walicek is distinguishable because the statute of limitations had expired before the third complaint was filed, our reading of the case convinces us that the members of the panel of the fifth division of the first district are in agreement with those of the second division, which decided Bernstein v. Gottlieb Memorial Hospital (1989), 185 Ill. App. 3d 709, 542 N.E.2d 20. Even if Walicek were to be considered distinguishable, Bernstein clearly holds that multiple filings within the statute of limitations are not allowed. Bernstein and Walicek are the only cases that have been cited to us, and that our independent research has disclosed, that resolve the issue in this way. They are obviously not in agreement with this court’s decision in Relaford.

We feel that both Walicek and Bernstein have misconstrued the purpose of section 13 — 217 (Ill. Rev. Stat. 1989, ch. 110, par. 13— 217) and that their analysis is neither historically accurate nor legally sound. An adequate explanation of our disagreement with the first district requires a relatively detailed discussion of two statutes: section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1009), which governs voluntary dismissals, and section 13 — 217 (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 217), which governs re-filings. In examining these statutes the effectuation of the legislature’s intent should be foremost, and in achieving this result the following questions should be kept in mind: “What rights did the plaintiff have under the common law? Wfiiat limitations were imposed on those rights? What relief, if any, is there from those limitations?”

At common law the plaintiff had an extremely broad right to take a nonsuit; it could be taken any time before the verdict was rendered in open court. (Berry v. Savage (1840), 3 Ill. 261; Chicago Title & Trust Co. v. County of Cook (1935), 279 Ill. App. 462.) This right of the plaintiff to avoid an adverse ruling may have been based on some historical precursor that a verdict could not be returned against a plaintiff in his absence and which allowed the plaintiff to take a non-suit by simply absenting himself from the courtroom (R. Michael, Illinois Practice §42.2, at 340 (1989)), or it may have been a method of allowing a plaintiff to obtain some knowledge of the facts of the case in an aborted trial before the advent of discovery. (Howe v. Harroun (1856), 17 Ill. 494; see also Ferrini & Winter, Voluntary Dismissals— From Shield To Sword By The Convergence Of Improvident Actions, 21 J. Marshall L. Rev. 549, 551 (1988).) Regardless of the original basis, there is no dispute that the right to take a nonsuit was both absolute and could be exercised at an extremely late stage of the proceedings. Berry, 3 Ill. 261.

What limitations were there upon this right of the plaintiff, or to put it another way, what protection was afforded the defendant under those circumstances? The first limitation, or protection, depending upon the point of view, was the applicable statute of limitations. If the plaintiff took a nonsuit, it was necessary to refile the claim within the statute of limitations or the claim would be barred. The protection afforded by the statute of limitations was later supplemented by statutes restricting the time and manner of taking voluntary dismissals.

The first limitation on voluntary nonsuits was enacted in 1819 and provided:

“Every person desirous of suffering a nonsuit on trial, shall be barred therefrom unless he do so before the jury retire from the bar.” (R.L. 486.)

(Gale’s Stat. 528. See also Berry, 3 Ill. 261; Daube v. Kuppenheimer (1916), 272 Ill. 350, 112 N.E. 61.) Subsequent amendments in 1907 and 1933 imposed additional limitations. Section (a) of the present statute (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1009(a)) has been in existence in essentially its present form since 1933. It is extremely important to note that none of the statutes which impose limitations on the plaintiff’s right to take a nonsuit imposed any limitations upon the plaintiff’s right to refile a claim. The only such limitation upon the right to refile was the statute of limitations. It should also be noted that the statutory limitations on nonsuits have always been found under the Civil Practice Aet/Civil Practice Law provisions.

With this background in mind, the next question needs to be addressed; namely, what relief did the plaintiff have from the imposition of the bar of the statute of limitations? Without the benefit of a savings statute, if the refiling took place after the statute of limitations, the plaintiff had none; it was imperative that a nonsuited claim be refiled within the statute of limitations or it was barred.

The next statute to come into consideration is what is commonly called the savings statute and is presently found in section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13— 217). The first enactment of the savings statute that our research has disclosed was in 1827. At that time and at all times until its inclusion in the Code of Civil Procedure in 1982, the savings statute remained in the chapter of the statutes which dealt with limitations on the time within which an action could be brought. It was also obviously an exception to the general barring effect of the statute of limitations. The 1827 statute provided:

“Sec. 9. That if in any of the said actions, specified in any of the preceding sections of this act, judgment be given for the plaintiff, and the same be reversed by writ of error, or upon appeal, or if a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff; or if the plaintiff be non-suited, then, if the time limited for bringing such action shall have expired during the pendency of sicch suit, the said plaintiff, his or her heirs, executors or administrators, as the case shall require, may commence a new action, within one year after such judgment reversed or given against the plaintiff, and not after.” (Emphasis added.) (Revised Code of Laws of Illinois 1827, Limitations §9, at 286 (1827).)

This statute remained essentially unchanged through multiple reenactments over the next 140 years. In 1967 the statute was amended and provided at that time as follows:

“§24. In the actions specified in this Act or any other act or contract where the time for commencing an action is limited, if judgment is given for the plaintiff but reversed on appeal; or if there is a verdict for the plaintiff and, upon matter alleged in arrest of judgment, the judgment is given against the plaintiff; or if the plaintiff is nonsuited, or the action is dismissed for want of prosecution then, whether or not the time limitation for bringing such action expires during the pendency of such suit, the plaintiff, his heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or given against the plaintiff, or after the plaintiff is nonsuited or the action is dismissed for want of prosecution.” (Emphasis added.) (Ill. Rev. Stat. 1967, ch. 83, par. 24a.)

It is worthy to note at this time that for at least the first 140 years of its existence, the savings statute, properly examined, was not called into play until the statute of limitations had expired; in other words, there was no adverse consequence from which to save the plaintiff until the statute of limitations had passed. In this regard the savings statute is akin to a life preserver that is usable on only one occasion. If we assume that an ocean liner is stocked with such one-use life preservers (disregarding all potential litigation that might arise from this assumption for the moment), the passengers would still be free to depart and reboard the ship as often as they liked as long as the ship remained attached to the dock. There would be no need to resort to the life preservers until the ship encountered problems at sea.

Similarly, there was no need for a plaintiff to claim a one-time use of the present section 13 — 217 until the statute of limitations had passed. The early savings statute gave to a plaintiff who had suffered a nonsuit one year after he had been nonsuited in which to commence a new action, but it gave that right only when the time limited for bringing such action had expired during the pendency of the suit in which plaintiff was nonsuited. “If at the time of the non-suit there remained unexpired any portion of the time limited for bringing such action, then the provisions of the statute do not apply.” (Wiggins Ferry Co. v. Gardner (1900), 91 Ill. App. 20, 22; see also Heimberger v. Elliot Frog & Switch Co. (1910), 245 Ill. 448, 92 N.E. 297.) “It cannot be seriously contended that the law fixes any limit on the number of successive suits that may be started within the year allowed by the Injuries act.” (Heimberger, 245 Ill. at 451.) “In this case, it is not necessary for the plaintiff to rely on section 24 to commence the new action since, because of her minority, the time in which her suit might be brought has not expired.” Casillas v. Rosengren, (1967), 86 Ill. App. 2d 139,143, 229 N.E.2d 141,143.

We will discuss the Walicek and Bernstein reliance upon the 1967 amendment at a later point in this opinion. At this time we would point out that both of those cases treat sections 2 — 1009 and 13 — 217 as though both statutes were passed as limitations upon the plaintiff. This treatment cannot be justified on a historical basis given the divergent means by which both entered the law and the completely different purposes that each was intended to accomplish. The fact that both sections are now found within the body of the Code of Civil Procedure no more suggests that they are both to be construed as limitations upon the plaintiff’s rights than does the fact that both a gas pedal and brakes are to be found within the body of an automobile.

One final point on section 13 — 217 needs to be mentioned. Until 1976 voluntary dismissals were not even included in the protected class of claims that could be refiled after the statute of limitations pursuant to the savings statute. The statute was changed in 1976 to read as follows:

“§24. In the actions specified in this Act or any other act or contract where the time for commencing an action is limited, if judgment is given for the plaintiff but reversed on appeal; or if there is a verdict for the plaintiff and, upon matter alleged in arrest of judgment, the judgment is given against the plaintiff; or the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution then, whether or not the time limitation for bringing such action expires during the pendency of such suit, the plaintiff, his heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or given against the plaintiff, or after the action is voluntarily dismissed by the plaintiff or the action is dismissed for want of prosecution.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 83, par. 24a.)

While the term “nonsuit” was used in the earlier statutes, it had been judicially determined to apply to involuntary rather than voluntary dismissals. Hupp v. Gray (1978), 73 Ill. 2d 78, 382 N.E.2d 1211; Heimberger v. Elliot Frog & Switch Co. (1910), 245 Ill. 448, 92 N.E. 297; Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill. App. 3d 59, 387 N.E.2d 831; Ferrini & Winter, 21 J. Marshall L. Rev., at 550 (1988).

While this statutory change was not specifically addressed by the parties in this case, it could be argued in support of either of their positions. The plaintiff could argue that the change was the legislature’s first broadening of the plaintiff’s rights with regard to voluntary dismissals, which is in contrast to its successive restrictions on the rights that have been covered in our earlier discussion of section 2 — 1009. The defendant could argue that this change, when coupled with the 1967 language relied upon by Bernstein as limiting the plaintiff’s rights, indicates a willingness on the part of the legislature to further limit the plaintiff’s rights to take a voluntary dismissal and then refile. We are persuaded that the change is actually a neutral one in terms of the issue before us. As Mr. Fins indicates in his article, The Illinois Law Revision Commission:

“Limitations Act
In 1976, the Law Revision Commission alerted the legislature to the possibly conflicting terminology in section 24 of the Limitations Act. Prior to 1976, section 24 employed the term ‘non-suit’ while section 52 of the Civil Practice Act used the term ‘voluntary dismissal.’ Section 24 was thereafter amended by deleting the words ‘non-suit’ and incorporating the words ‘voluntary dismissal.’ ” (Fins, The Illinois Law Revision Commission, 29 De Paul L.Rev. 443, 460-61 (1979-80).)

The recommendation of the Law Review Revision Commission has been criticized:

“In other words, the commission substituted the terms ‘voluntary dismissal’ for ‘nonsuit’ upon the apparent belief that the term ‘nonsuit’ necessarily referred to voluntary dismissals. As previously noted, however, the statute had not been so interpreted.” (Ferrini & Winter, Voluntary Dismissals — From Shield To Sword By The Convergence Of Improvident Actions, 21 J. Marshall L. Rev. 549, 552 (1988).)

The wisdom of the change is not a matter that need concern us in this appeal. We feel it is more likely that the purpose of the change was to obviate what was perceived to be a cosmetic problem and that it has no substantive effect on this issue.

Turning to the legal analysis utilized in both Walicek and Bernstein, each of course relies upon two sources for its holding, prior cases and the applicable statutes. Walicek relies upon Phillips v. Elrod (1985), 135 Ill. App. 3d 70, 478 N.E.2d 1078; Smith v. Chicago Transit Authority (1978), 67 Ill. App. 3d 385, 385 N.E.2d 62; Harrison v. Woyahn (7th Cir. 1958), 261 F.2d 412; LaBarge, Inc. v. Corn Belt Bank (1981), 101 Ill. App. 3d 741, 428 N.E.2d 711; Gendek v. Jehangir (1987), 151 Ill. App. 3d 1028, 503 N.E.2d 1161, aff’d (1988), 119 Ill. 2d 338, 518 N.E.2d 1051; and Kutnick v. Grant (1976), 65 Ill. 2d 177, 357 N.E.2d 480. Bernstein relies upon Gendek v. Jehangir (1988), 119 Ill. 2d 338, 518 N.E.2d 1051; Tuch v. McMillen (1988), 167 Ill. App. 3d 747, 521 N.E.2d 1218; Fanaro v. First National Bank (1987), 160 Ill. App. 3d 1030, 513 N.E.2d 1041; Walicek v. Ciba-Geigy Corp. (1987), 155 Ill. App. 3d 667, 508 N.E.2d 246; Harrison v. Woyahn (7th Cir. 1958), 261 E2d 412; and Smith v. Chicago Transit Authority (1978), 67 Ill. App. 3d 385, 385 N.E.2d 62. We will point out that all of the above cases, with the possible exception of Kutnick, involved situations in which the statute of limitations had already passed when the plaintiffs attempted to bring their final refiling before the court. Several of the cases relied upon in Walicek and Bernstein were distinguished on other bases in a dissenting opinion in Gendek. (Gendek, 151 Ill. App. 3d at 1033, 503 N.E.2d at 1165.) The cases relied upon in Walicek and Bernstein are not the only ones which involved cases in which the statute had passed and there were multiple filings. The following cases also address that same issue: Raper v. St. Mary’s Hospital (1989), 181 Ill. App. 3d 379, 536 N.E.2d 1342; O’Connor v. Ohio Centennial Corp. (1984), 124 Ill. App. 3d 281, 463 N.E.2d 1376; Aranda v. Hobart Manufacturing Corp. (1976), 35 Ill. App. 3d 902, 342 N.E.2d 830, rev’d (1977), 66 Ill. 2d 616, 363 N.E.2d 796; Sandman v. Marshall Field & Co. (1975), 27 Ill. App. 3d 427, 326 N.E.2d 514; Brown v. Burdick (1974), 16 Ill. App. 3d 1071, 307 N.E.2d 409; and Quirino v. Chicago Tribune-New York News Syndicate, Inc. (1973), 10 Ill. App. 3d 148, 294 N.E.2d 29. We agree with the holdings in the cases relied upon by Walicek and Bernstein and with the additional cases that we have listed above, that is to say that the plaintiff may not engage in multiple refilings after the statute of limitations has expired. We also agree that section 13 — 217 was not intended to allow the plaintiff to extend the statute of limitations in one-year increments by successive dismissals and refilings. Once a statute of limitations has passed, the plaintiff is entitled to refile only once and that refiling must take place within one year of the dismissal. In other words, we agree that in order to come within the protection of section 13 — 217, the plaintiff must comply with the requirements set forth in section 13 — 217. Our disagreement with the first district arises from our conclusion that section 13 — 217 is not a further limitation upon the plaintiff’s right to voluntarily dismiss. Those limitations are contained in section 2 — 1009. While section 2 — 1009 is properly construed as a limitation upon the plaintiff’s right to dismiss, section 13 — 217 cannot be so characterized, for instead of being a limitation on the plaintiff’s right, it is an exception to the statute of limitations which restricts those rights.

Turning from the cases to the first district’s reliance upon the language of the statutes themselves, we find two slightly different approaches taken. In Walicek the court holds that adopting the plaintiff’s position would render the language “whether or not the time limitation for bringing such action expires during the pendency of such action” meaningless. (Emphasis in original.) (Walicek, 155 Ill. App. 3d at 672, 508 N.E.2d at 249.) Bernstein reaches the same conclusion but buttresses it by comparing the prior language of section 13 — 217 with the present language, and concluding that the change was intended as a further limitation upon the plaintiff’s right to refile. We do not agree with either conclusion.

We do agree with the general proposition that the legislature has a meaning to give to words when it amends a statute. (See Santiago v. Kusper (1990), 133 Ill. 2d 318, 329, 549 N.E.2d 1251, 1256.) The earlier provisions of section 13 — 217, which were contained in section 24(a) (Ill. Rev. Stat. 1965, ch. 83, par. 24(a)), clearly provided that the savings statute applied to situations in which “the time limited for bringing such action shall have expired during the pendency of such suit” (emphasis added), while the present section provides that, “whether or not the time limitation for bringing such action expires during the pendency of such suit,” the plaintiff may commence a new action (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 217). At first reading this change may seem to imply a limitation upon the plaintiff’s rights. These phrases, however, must be read with the purpose of the statute in mind and in the context of the entire statute. Its purpose, as already discussed, is to act as a savings statute. The additional context which must be considered is that the new language gives the plaintiff additional benefits which were not available under the old statute.

To illustrate the effect of the change, assume that a personal injury case was filed shortly after the accident and that the plaintiff dismissed one month before the two-year statute of limitations expired. Under old section 24(a) the plaintiff could refile within that one month before the statute of limitations ran without regard to section 24(a). But, if he attempted to invoke section 24(a) and file after the statute of limitations ran, he would be barred because the time limited for bringing the action did not expire “during the pendency of the suit.” (Dukes v. Harrison & Reidy (1933), 270 Ill. App. 372.) Therefore, if the plaintiff dismissed shortly before the statute of limitations prior to the amendment characterized as a limitation in Bernstein, he would have effectively limited his time period of refiling to the one month remaining under the statute of limitations. After the amendment, however, the plaintiff who dismisses one month before the statute of limitations expires can still claim the benefit of the savings statute after the statute of limitations has passed, even though the statute of limitations did not expire “during the pendency of the suit.” Also, the plaintiff can still claim the remaining period of the statute of limitations or one year from the dismissal “whichever is greater.” Thus, the amendment does not constitute an abridgement of the plaintiffs rights, it is an amplification of them.

Defendant also argues that the language “may commence a new action” mandates a holding that only one refiling is allowed. As we have indicated earlier, we have no quarrel with that proposition if the savings statute is necessary for the plaintiff to be able to refile. We do not by this opinion endorse or approve multiple refilings if the statute of limitations has expired, but we cannot accept the proposition that only one is allowed when the statute of limitations has not expired.

While our discussion is centered on voluntary dismissals because that is what is involved in this case, we would point out that the savings statute also deals with other types of dismissals that do not resolve the merits of the action. These additionally protected dismissals are important in this context because when they occur the plaintiff has no control of the timing of the dismissal. Unlike voluntary dismissals in which the plaintiff controls the timing, any of the other protected categories could have been dismissed just before the statute of limitations had expired and the plaintiff would not have been able to claim section 24(a)’s protection because the statute had not run during the “pendency of the suit.”

Our disagreement with Walicek’s and Bernstein’s construction of the statute arises largely from their insistence that section 24(a) must to be utilized before the statute of limitations expires and that it is a statute limiting plaintiff’s rights. These positions are summarized in the following language, first from Walicek, then from Bernstein:

Walicek:
“Plaintiff availed himself of section 13 — 217 after the first dismissal and cannot again, for a second time, avail himself of this section.” (Emphasis added.) (Walicek, 155 Ill. App. 3d at 672, 508 N.E.2d at 249.)
Bernstein:
“Critical to the holding in Casillas was a prior rendering of section 24 which allowed renewal of claims if filed within one year of the contingencies enumerated therein and ‘if the time limited for bringing such action shall have expired during the pendency of such [i.e., the initial] suit.’ [(Emphasis in original.)] (Ill. Rev. Stat. 1965, ch. 83, par. 24a.) That version of section 24 necessarily required exhaustion of the applicable limitations period before the savings statute could be invoked, as contrasted with the current statute, which limits the refiling of claims ‘whether or not the time limitation for bringing such action expires during the pendency of such action.’ ” (Emphasis added.) Bernstein, 185 Ill. App. 3d at 714, 542 N.E.2d at 24.

In response to these statements, we would state that, contrary to the language in Walicek, the plaintiff need not “avail” himself of section 13 — 217 until after the statute of limitations has expired. As to the emphasized language in Bernstein, the phrase “could be invoked” should properly be “had to be invoked” and the word “limits” should be “allows.”

While it is inappropriate for courts to expand the provisions of the savings statute beyond what was contemplated by the legislature, given its history and the courts’ construction of it (see DeClerck v. Simpson (1990), 200 Ill. App. 3d 889, 558 N.E.2d 234 (Chapman, J., dissenting), appeal allowed (1990), 133 Ill. 2d 554), it is equally inappropriate for courts to transform the helping hand of the statute into a closed fist. We therefore respectfully decline to follow the reasoning of Walicek and Bernstein.

We will next discuss the defendant’s reliance upon Gendek v. Jehangir (1988), 119 Ill. 2d 338, 518 N.E.2d 1051, and Gibellina v. Handley (1989), 127 Ill. 2d 122, 535 N.E.2d 858. Interestingly, the Gendek decision at the appellate level was cited by Walicek and the decision at the supreme court level was cited both by Bernstein and Relaford in reaching their opposite conclusions. We believe the language in Gendek relied upon by Relaford, quoted here, reflects the supreme court’s actual holding because the statute of limitations had expired in that case:

“Accordingly, we find that the provision was not intended to permit multiple refilings following voluntary dismissals of an action for which the original statute of limitations has lapsed.” (Emphasis added.) Gendek, 119 Ill. 2d at 343, 518 N.E.2d at 1053.

The defendants also rely heavily upon the supreme court’s statement in Gibellina:

“While a section 2 — 1009 motion in conjunction with section 13 — 217 may protect the right of a plaintiff to have a decision in the particular case made on the merits of the claim by potentially permitting ‘two bites of the apple’ when the first bite turns sour, the statutory scheme does not allow a third bite.” (Gibellina, 127 Ill. 2d at 134, 535 N.E.2d at 864.)

The plaintiff contends that this statement is dicta and that Gibellina is by its terms to be prospectively applied. We agree with the plaintiff’s position, but since this is an issue of some importance that involves different holdings from different appellate districts that the supreme court may wish to resolve, we will discuss the above language in more detail.

There has been some disagreement among commentators with regard to the effect that the voluntary dismissal provisions have had. (See Johnston, The Voluntary Dismissal in Illinois — A Sword or a Shield?, 21 J. Marshall L. Rev. 537 (1988); Ferrini & Winter, Voluntary Dismissals — From Shield To Sword By The Convergence of Improvident Actions, 21 J. Marshall L. Rev. 549 (1988).) Disagreement among commentators has been reflected in a somewhat cyclical treatment in the cases. The very early cases read the limitations on voluntary dismissals restrictively and allowed a plaintiff to take a nonsuit at extremely late stages. (Berry v. Savage (1840), 3 Ill. 261; Howe v. Harroun (1856), 17 Ill. 494.) During more modem times, however, the courts imposed a more rigorous interpretation on the statute and sometimes refused to allow plaintiffs to refile if they were unable to show due diligence. (Sandman v. Marshall Field & Co. (1975), 27 Ill. App. 3d 427, 326 N.E.2d 514, Brown v. Burdick (1974), 16 Ill. App. 3d 1071, 307 N.E.2d 409; Quirino v. Chicago Tribune-New York News Syndicate, Inc. (1973), 10 Ill. App. 3d 148, 294 N.E.2d 29.) The latter trend was curtailed by the supreme court’s decisions in Franzese v. Trinko (1977), 66 Ill. 2d 136, 361 N.E.2d 585, and Aranda v. Hobart Manufacturing Corp. (1976), 35 Ill. App. 3d 902, 363 N.E.2d 796, which affirmed the absolute nature of plaintiffs’ right to voluntarily dismiss.

The next series of cases reflected a more restrictive attitude because of the supreme court’s concern with potential abuses that were occurring. We feel that the earlier quoted statement from Gibellina reflects the supreme court’s concern that began with Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787, extended through O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322, and culminated in Gibellina. The cause of this concern, however, is the improper use of section 2 — 1009, not the use of section 13 — 217. Plaintiffs’ efforts to circumvent the effect of in limine rulings (Kahle), to overcome their failure to exercise diligence in obtaining service (O’Connell), and their attempts to avoid potentially dispositive rulings on motions (Gibellina) have all been criticized as improper uses of section 2 — 1009, but none have anything to do with section 13 — 217 unless the statute of limitations has expired.

We recognize that the supreme court included section 13 — 217 in its critical comment in Gibellina. However, as we have indicated, section 13 — 217 deals with a different problem than those created by improper maneuvering under section 2 — 1009. The supreme court addressed the problem of late service in O’Connell and that of dispositive motions in Gibellina.

As a final point on this issue, we pose this question: “How do defendants suffer any detriment by a dismissal and subsequent refilings that occur within the statute of limitations if the dismissal and refiling were not effectuated in an attempt to achieve any of the criticized purposes listed above?” At oral argument counsel for defendants originally suggested that a witness could die or evidence become unavailable during the intervening time, but he then conceded that this can occur in any case at any time before the expiration of the statute of limitations, particularly a relatively long statute such as the 10 years which is apparently at issue in this case. Therefore, defendants would appear to be in at .least as good a position to defend themselves, by gamering evidence and conducting discovery in a case that is filed early, and then dismissed and refiled, as they would be in a case that was filed only once near the end of the statute of limitations. As we have indicated, the supreme court has already addressed two of the more serious abuses under section 2 — 1009 and it additionally suggested further remedies that could be available to defendants in its opinion in Gibellina.

In this case there is no claim of lack of diligent service, nor any contention that the plaintiffs were faced with dispositive motions at the time of the dismissals. Indeed, there is no indication of any prejudice to the defendants in this case other than the delay engendered by the dismissals and refilings.

At this time we will briefly dispose of the defendant’s final contention that Relaford should be limited to its facts, to cases involving a two-year statute of limitations, and not extended to cases involving a 10-year statute. As we have noted earlier, when the statute of limitations affords the plaintiff a certain number of years to initially file a claim, we do not see how a defendant is prejudiced by any filing or refiling that occurs within that period whether the period be two years or 10 years.

In conclusion, we affirm the decision of the trial court.

Affirmed.

RARICK and WELCH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. STEVEN JALINSKY, Defendant-Appellee.
    Fifth District
    No. 5-89-0388
    Opinion filed November 19, 1990.
    John Baricevic, • State’s Attorney, of Belleville (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Janet L. Gandy, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The defendant, Steven Jalinsky, was charged with unlawful possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 56½, par. 1402(b)). Defense counsel filed a motion to suppress evidence and statements. After conducting a hearing on the matter, the trial court granted defendant’s motion. The State appeals. We reverse.

The issue here is whether the evidence and statements obtained were the result of an illegal arrest and unlawful search. The facts of this case are uncontradicted. On January 24, 1989, Officer Jeffrey Stratman, of the Fairview Heights police department, was on routine patrol conducting vehicle registration checks. At one point Stratman observed defendant driving a silver Yamaha motorcycle. Officer Stratman testified that one week prior to his observing the defendant, he had seen a similar motorcycle which he learned, after running a registration check on the vehicle, was owned by someone with a class A driver’s license. Officer Stratman explained that someone possessing a class A license is not authorized to drive a motorcycle. Officer Stratman was unable to investigate the matter further on that date because by the time he received information as to the status of the owner’s registration, he had lost sight of the vehicle.

On January 24, 1989, when Stratman observed what he thought was the same motorcycle, he conducted a registration check on the vehicle. The computer check revealed that the motorcycle was not the same one which he had observed the previous week. The check did reveal, however, that the registered owner of the motorcycle did not possess a valid license for the operation of a motorcycle. The motorcycle registration was from a different city as well. Stratman also received a physical description of the registered owner, which the officer observed was similar to the defendant's.

Stratman testified that while waiting for the computer to assimilate the registration information, he followed defendant through the neighborhood. The officer testified that at that time the defendant was driving aimlessly through the neighborhood and appeared to be trying to avoid the officer by changing direction several times. Stratman related that this neighborhood was the scene of a number of recent burglaries. Based on the recent burglaries, defendant’s behavior, and the information received as to the vehicle registration, Stratman decided to investigate.

Stratman initiated a stop of defendant’s vehicle, approached the defendant, and asked him for his driver’s license. When asked by Officer Stratman about the ownership of the motorcycle and defendant’s driver’s license, defendant claimed to be the registered owner, but stated that he did not have his license with him. The officer then advised defendant that defendant was going to receive a citation for violation of the license classification. Officer Stratman proceeded to conduct a pat-down search so that he could transport the defendant to the police station to post bond. Stratman testified that this was routine procedure for a classification violation.

Stratman’s search of defendant’s person revealed papers and a pack of cigarettes. Stratman testified that, “in the past we have had people with razor blades or pen knives or something in cigarette packs,” so Stratman “flipped it open to make sure there wasn’t a knife in there.” The officer discovered what appeared to be a cannabis cigarette. The defendant grabbed the cigarette and attempted to ingest it. After the item was recovered, the defendant was handcuffed and taken to the police station. At the station the search of defendant’s person was completed, and a quantity of cannabis and crack cocaine was found and seized.

In ruling on defendant’s motion to suppress, the court stated:

“I don’t argue that the defendant was lawfully driving upon a public highway. He obviously was not as it turned out but the determination of probable cause has to be made really prior to the initial stop ***.
The fact that there are burglaries in the neighborhood, I think, gives him every reason to follow the vehicle to see what it is up to but unless the person does something wrong, I don’t think that there is any reason to pull him over and question him or to even ask for his driver’s license at this point.”

It is clear that the trial court’s basis for granting defendant’s motion to suppress rested entirely upon its finding of no probable cause for the initial stop. On appeal the defendant concedes that the basis of the trial court’s ruling was invalid, in that he agrees that Officer Stratman was authorized to stop the motorcycle to investigate the license status of the driver based upon the computer information that the officer had received. (See People v. Barnes (1987), 152 Ill. App. 3d 1004, 505 N.E.2d 427.) However, the further issue we are required to decide is whether the arrest and subsequent search of defendant were invalid.

It is undisputed that Officer Stratman asked defendant if he had a driver’s license with him, and that defendant admitted that he did not. The officer then asked defendant if he owned the motorcycle, and he responded affirmatively. The defendant claims that the evidence was properly suppressed because the officer did not ask him to identify himself, but presumed that he was in fact the owner of the vehicle. Defendant contends that, while he told Officer Stratman that he was the owner of the vehicle, his statement did not obviate the requirement that the officer ascertain the identity of the driver. Defendant argues that his arrest was based upon the mistaken assumption that defendant was the owner of the motorcycle, when in fact defendant’s brother was the owner. He concludes that since the arrest was improper, the evidence derived therefrom was properly suppressed.

Upon stopping the defendant, Officer Stratman asked the defendant to produce his driver’s license. This request was within the officer’s authority pursuant to the Illinois Vehicle Code, which requires:

“Every licensee or permittee shall have his drivers license or permit in his immediate possession at all times when operating a motor vehicle and, *** shall display such license or permit if it is in his possession upon demand made, *** by a member of the State Police, a sheriff or other police officer ***.” (Ill. Rev. Stat. 1989, ch. 95½, par. 6 — 112.)

When defendant replied that he was the owner and the officer had the information from the computer check that the owner did not have the proper license classification, the officer had reasonable grounds to believe that the defendant had committed the offense of violation of the classification and was justified in arresting him. To determine whether probable cause exists for an arrest, the totality of the facts and circumstances within the arresting officer’s knowledge at the time of arrest must be sufficient to warrant a man of reasonable caution to believe that an offense has been committed and that the person arrested has committed the offense. (People v. Lippert (1982), 89 Ill. 2d 171, 178, 432 N.E.2d 605, 608.) An arrest is not unconstitutional merely because the information which the officer relied upon later turns out to be erroneous (Roddy v. Catto (1986), 143 Ill. App. 3d 176, 185, 491 N.E.2d 961, 966-67), as the probable cause determination looks to the information available to the officer at the time of arrest and exacts from him a reasonable assessment of it, not a perfect one. Roddy, 143 Ill. App. 3d at 185, 491 N.E.2d at 966-67.

The officer knew that the owner of the motorcycle did not possess a driver’s license with the proper classification to drive a motorcycle. He was also aware that the defendant’s physical appearance was similar to that of the registered owner, and the defendant advised the officer that he was the owner.. Officer Stratman had no reason to suspect that the defendant was being untruthful. Based on the totality of the circumstances, the officer had probable cause to arrest the defendant.

Defendant does not argue that assuming a proper arrest was made, the subsequent search was improper. After the arrest, Officer Stratman was justified in conducting a search for weapons before transporting the defendant. (United States v. Robinson (1973), 414 U.S. 218, 236, 38 L. Ed. 2d 427, 441, 94 S. Ct. 467, 477; Ill. Rev. Stat. 1989, ch. 38, par. 108 — 1(a).) When a search incident to a lawful arrest results in the discovery of an illegal substance, the officer is entitled to seize it as contraband and use it as evidence against the defendant. Robinson, 414 U.S. at 236, 38 L. Ed. 2d at 441, 94 S. Ct. at 477.

Based on the foregoing, we reverse the decision of the trial court granting the defendant’s motion to suppress and remand this cause for further proceedings.

Reversed and remanded.

HARRISON and WELCH, JJ., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERNEST PERRY, Defendant-Appellant.
    Fifth District
    No. 5—88—0549
    Opinion filed November 19, 1990.

      Daniel M. Kirwan and John T. Hildebrand, both of State Appellate Defender's Office, of Mt. Vernon, for appellant.
    William R. Haine, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, also of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Following a jury trial in the circuit court of Madison County, defendant, Ernest Perry, was convicted of two counts of murder under section 9 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)) and two counts of home invasion under section 12 — 11(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 11(a)(2)) in connection with the stabbing deaths of Alvin Autery and Mary Irwin. The circuit court denied defendant’s post-trial motions and imposed concurrent sentences of imprisonment for natural life without parole on each of the murder convictions and 30 years’ imprisonment on each of the home invasion counts. Defendant now appeals, and the central question before us on review is whether the circuit court erred in refusing to suppress defendant’s confession at trial. For the reasons which follow, we hold that it did. We therefore reverse defendant’s convictions and remand for a new trial.

The record before us establishes that defendant was arrested on January 6, 1987, pursuant to an outstanding robbery warrant. That warrant was unrelated to any of the crimes for which he was tried and convicted in this case. Defendant was transported to the police station in Alton, Illinois, where he was “booked” and advised of his rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. Defendant was then interviewed by Alton Police Officer Anthony Ventimigila and a detective named Pyatt, regarding the Autery-Irwin murders. During that interview, defendant gave an oral statement in which he denied any knowledge of the murders.

The following day, defendant appeared before Judge Isbell of the circuit court of Madison County, where he was arraigned on charges of robbery and aggravated battery. These charges were related to the initial robbery warrant pursuant to which defendant was arrested, but they were wholly unrelated to the Autery-Irwin murders. At the arraignment, defendant requested that an attorney be appointed to represent him. The circuit court granted this request, appointed a public defender to represent him, and directed that defendant be transferred to the Madison County jail that day. The Alton police, however, subsequently obtained a “hold order” so that they could keep defendant in their municipal jail for another day and interrogate him further.

On the following day, January 8, 1987, the Alton police interviewed defendant once again regarding the Autery-Irwin murders. Prior to that interview, defendant was again advised of his rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct.1602. Defendant then proceeded to give a statement in which he confessed to having been involved in the crime which culminated in the murders of Autery and Irwin.

According to defendant’s confession, he accompanied an individual named Thurmon when Thurmon went to the victims’ home to steal their television set. Defendant stated that Thurmon told him to wait outside and act as a lookout while he, Thurmon, broke into the house. Defendant stated that while he was standing outside he heard Thurmon break in through the door. After a few minutes, defendant heard the sound of a man’s voice and woman’s voice “yelling and screaming.” He indicated that he then became frightened and fled the scene, returning to his own house.

Defendant told the police that Thurmon came by his house 15 minutes or so later and told him that he had stabbed the victims. According to defendant, Thurmon later explained that when he had confronted the victims in their home, he demanded money from them. When he found that they had none, he began “beating on them.” Thurmon related to defendant that when the victims then started screaming and threatening to call the police, he stabbed them. In his confession, defendant denied that he was directly involved in these stabbings. He stated that he did not go into the victims’ house and claimed that he “didn’t know that Thurmon was going to kill anyone.”

The day after the police obtained this confession, defendant was charged with murder and home invasion in connection with the break-in of the victims’ house and their subsequent stabbing deaths. Prior to his trial on those charges, defendant filed a motion to suppress his confession, arguing, inter alia, “[t]hat the statements sought to be suppressed were obtained as a result of interrogation which continued after the defendant had elected to remain silent and/or had elected to consult with an attorney prior to further questioning,” and “[tjhat the statements sought to be suppressed were obtained as a result of interrogation which took place outside the presence of counsel and after the defendant had been formally charged with an offense and after the appearance of counsel had been entered of record.”

Following a hearing, defendant’s motion to suppress was denied in an order entered by the circuit court on May 4, 1988. The following month, the United States Supreme Court issued its opinion in Arizona v. Roberson (1988), 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093. Based upon that decision, defendant filed a motion requesting that the circuit court reconsider its ruling on his motion to suppress. That motion was also denied, and defendant’s confession was ultimately admitted into evidence against him at trial.

We agree with defendant that the circuit court’s suppression order was erroneous. The fifth amendment to the United States Constitution guarantees that “[n]o person *** shall be compelled in any criminal case to be a witness against himself.” (U.S. Const., amend. V.) The fifth amendment protection against compelled self-incrimination provides the right to counsel at custodial interrogations. (Miranda v. Arizona (1966), 384 U.S. 436, 469-70, 16 L. Ed. 2d 694, 721, 86 S. Ct. 1602, 1625-26.) Following Miranda, the Supreme Court held in Edwards v. Arizona (1981), 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880, 1885, that, under the fifth amendment, an accused person in custody who has requested the aid of an attorney and thereby “expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” This rule was violated here.

As we have indicated, when defendant was arraigned on robbery and aggravated battery charges on January 7, 1987, he requested that an attorney be appointed to represent him. The court then entered an order appointing the public defender to serve as defendant’s counsel. There is nothing in the record before us to indicate that when defendant made his request he was seeking legal assistance only with respect to the formal legal proceedings which had then been initiated against him. Accordingly, defendant’s request must be construed as a general request for legal assistance, pursuant to the fifth amendment, in any subsequent interrogation to which he might be subjected while he remained in continuous physical custody. (United States v. Wolf (6th Cir. 1989), 879 F.2d 1320, 1322; United States ex rel. Espinoza v. Fairman (7th Cir. 1987), 813 F.2d 117, 123, cert, denied (1987), 484 U.S. 1010, 97 L. Ed. 2d 745, 107 S. Ct. 3240; see Michigan v. Jackson (1986), 475 U.S. 625, 633, 89 L. Ed. 2d 631, 640, 106 S. Ct. 1404, 1409; Cervi v. Kemp (11th Cir. 1988), 855 F.2d 702, 706-07, cert, denied (1989), 489 U.S. 1033, 103 L. Ed. 2d 230, 109 S. Ct. 1172.) Under Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, the police were therefore prohibited under the fifth amendment from initiating any further interrogation of him, as they did, without first making counsel available to him.

No claim can be made here that defendant subsequently waived his fifth amendment right to counsel. Although he did respond to further police questioning the day after his arraignment and signed the confession the police elicited from him after being advised of his rights under Miranda v. Arizona, the United States Supreme Court made clear in Edwards that where, as here, the State impermissibly initiates an interrogation after an individual has invoked the fifth amendment right to counsel, it may not establish that the suspect waived the right to counsel merely by showing that the suspect “responded to further police-initiated custodial interrogation even if he ha[d] been advised of his rights.” (451 U.S. at 484, 68 L. Ed. 2d at 386, 101 S. Ct. at 1885.) Indeed, the Supreme Court has held that when the State impermissibly initiates an interrogation after a defendant’s assertion of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid. Michigan v. Jackson (1986), 475 U.S. 625, 636, 89 L. Ed. 2d 631, 642, 106 S. Ct. 1404, 1411.

That the police violated defendant’s fifth amendment rights under the rule of Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, when it initiated interrogation of him on January 8, 1987, is not altered by the fact that the January 8 interrogation concerned crimes, the Autery-Irwin murders, which were unrelated to the robbery and aggravated battery charges for which defendant had been arrested and on which he had been arraigned the previous day. In Arizona v. Roberson (1988), 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093, the United States Supreme Court held that where a defendant remains in custody, as was the case here, the rule articulated in Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, prohibits any police-initiated interrogation following the defendant’s request for counsel even where, as in this case, the right to counsel has been invoked during a proceeding that concerns one crime and the subsequent interrogation occurs in the context of an investigation regarding a second, unrelated crime.

The State seeks to avoid application of Arizona v. Roberson here on the grounds that it was not decided until after the hearing was held on defendant’s motion to suppress and should not be given retroactive effect. In support of this claim, the State cites Butler v. McKellar (1990), 494 U.S. 407, 108 L. Ed. 2d 347, 110 S. Ct. 1212, but that case is inapposite. Butler held only that Arizona v. Roberson (1988), 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093, could not be applied retroactively to cases which had become final on direct appeal and were before the court for collateral review. In this case, defendant’s conviction was not yet final at the time Arizona v. Roberson was decided. Indeed, defendant’s trial had not yet even commenced. Accordingly, Arizona v. Roberson controls our analysis of defendant’s fifth amendment rights. See United States v. Wolf (6th Cir. 1989), 879 F.2d 1320,1322 n.1.

In sum, because defendant must be deemed to have invoked his fifth amendment right to counsel at his arraignment on the robbery and aggravated battery charges, the police were barred from initiating any subsequent interrogation of him concerning any crime, including the Autery-Irwin murders, while defendant remained in their custody. Under the authorities cited above, no valid waiver of this right was made. By interrogating defendant about the Autery-Irwin murders in the absence of his lawyer, the police therefore violated his fifth amendment right to counsel. Accordingly, the circuit court should have granted defendant’s motion to suppress.

Because defendant’s confession was admitted into evidence at his trial for the murders of Autery and Irwin, and because no claim has been made by the State that the admission of that confession constituted harmless error, we reverse defendant’s convictions and remand this cause for a new trial. In light of this disposition, we need not reach defendant’s alternative arguments that his sentence was improper or that he is entitled to a new hearing on his post-trial motion.

Reversed and remanded.

RARICK and HOWERTON, JJ., concur.


author: PRESIDING JUSTICE LEWIS JUSTICE RARICK,

text:
    BARBARA HARVEL, Plaintiff-Appellant, v. THE CITY OF JOHNSTON CITY et al., Defendants-Appellees (James Harvel, Plaintiff).
    Fifth District
    No. 5—89—0741
    Opinion filed November 20, 1990.

      RARICK, J., dissenting.

      Thomas J. Crosby, of Winters, Brewster, Murphy, Crosby & Patchett, of Marion, for appellant.
    Michael F. Dahlen, of Feirich/Schoen/Mager/Green, of Carbondale, for appellee City of Johnston City.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Bruce L. Carmen, and Brian K. McBrearty, of counsel), for appellee Lawrence A. Lipe & Associates.
   PRESIDING JUSTICE LEWIS

delivered the opinion of the court:

On July 26, 1989, the plaintiffs, James and Barbara Harvel, filed a complaint against the defendants, City of Johnston City (the City) and Lawrence A. Lipe & Associates (Lipe). In the complaint, counts I and II stated that the defendants had violated the provisions of the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.), and that these violations were the proximate cause of plaintiff James Harvel’s (James’) injuries. In the two remaining counts, counts III and IV, plaintiff Barbara Harvel (Barbara) alleged that the defendants had violated the provisions of the Structural Work Act, and, as a result of these violations and James’ resulting injuries therefrom, she sought damages against the City and Lipe for loss of consortium.

On August 21, 1989, Lipe filed a motion to dismiss count IV of the complaint for the reasons that loss of consortium is not a cause of action available to the spouse of an injured worker for a violation of the Structural Work Act and that count IV of the complaint fails to otherwise state a cause of action under which Barbara can recover. On September 18, 1989, the City likewise sought dismissal of count III of the complaint, pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619) for the same reasons set forth in Lipe’s motion to dismiss. On October 30, 1989, the circuit court entered an order dismissing counts III and IV of the plaintiffs’ complaint pursuant to section 2 — 619 of the Code of Civil Procedure. The court also held that there was no just reason to delay enforcement or appeal of this matter and that discovery in the remaining matters need not be stayed pending appeal. Barbara appeals the dismissal of the two counts of the complaint for her loss of consortium action.

The facts which formed the basis of the plaintiffs’ complaint were as follows: On August 26, 1988, the City was in charge of the construction of a water treatment plant, and as part of this project, the City had erected an elevated water retention tank. The City had hired Lipe as its agent to direct, supervise and inspect the erection of the water treatment facility. On this date, James, in the performance of his duties, was on the elevated water retention tank from which he fell onto the concrete at the bottom of the tank, thereby sustaining permanent injuries.

On appeal, Barbara raises two issues: that the circuit court erroneously dismissed her cause of action for loss of consortium (1) as a reasonable reading of the Structural Work Act allows such a claim, and (2) as, alternatively, the spouse of an injured worker has a common law cause of action for loss of consortium. We first consider the plaintiff’s contention that the Structural Work Act permits a cause of action for an injured spouse’s loss of consortium, an issue concerning the statutory construction of the statute.

In construing a statute, it is fundamental that a court must give effect to the intent of the legislature and that the first step in ascertaining the legislature’s intent is to look at the language of the statute involved. (American Country Insurance Co. v. Wilcoxon (1989), 127 Ill. 2d 230, 537 N.E.2d 284.) In considering the provision of the statute, the statute must be read as a whole. (Woods v. East St. Louis School District No. 189 (1986), 147 Ill. App. 3d 776, 498 N.E.2d 801.) Only where the language of a statute is ambiguous is it necessary to interpret a statute. (Davis v. Bughdadi (1983), 120 Ill. App. 3d 236, 458 N.E.2d 177.) In addition to the language of the statute, a court may also consider the reason and necessity for the law, the evils to be remedied, and the statute’s purpose. American Country Insurance Co., 127 Ill. 2d 230, 537 N.E.2d 284.

The primary purpose of the Structural Work Act is to provide construction workers a safe place to work and a remedy for injuries suffered by workers at a hazardous construction site. (Grant v. Zale Construction Co. (1982), 109 Ill. App. 3d 545, 440 N.E.2d 1043.) In furtherance of this purpose, the statute is to be liberally construed; however, liberal construction cannot extend the statute’s protection to persons not covered by the statute. Dasenbrock v. Serstel Co. (1987), 151 Ill. App. 3d 1092, 503 N.E.2d 1106.

Applying the foregoing principles, our first consideration must be the language of the statute itself. Section 9 of the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 69) delineates who can bring a cause of action for a person’s injuries under the Act. This section provides in pertinent part as follows:

“For any injury to person or property, occasioned by any wilful violations of this Act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby; and in case of loss of life by reason of such wilful violation or wilful failure as aforesaid, a right of action shall accrue to the surviving spouse of the person so killed, the lineal heirs or adopted children of such person, or to any other person or persons who were, before such loss of life, dependent for support on the person or persons so killed, for a like recovery of damages for the injuries sustained by reason of such loss of life or lives.” (Ill. Rev. Stat. 1987, ch. 48, par. 69.)

From the language of section 9, it is clear that only the “party injured” due to a violation of the Act, or the spouse or certain relatives or dependents of a deceased person, is permitted to bring a cause of action for a violation of the Structural Work Act.

The next question to be answered is what the legislature meant by the phrase “party injured” used in section 9. Again, the language of the statute provides guidance as to whom the legislature intended to be protected by the Structural Work Act. Section 1 of the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60) states in pertinent part:

“All scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances *** shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” (Ill. Rev. Stat. 1987, ch. 48, par. 60.)

From the foregoing language, we determine that the phrase “party injured” used in section 9 refers to those “person or persons employed or engaged thereon, or passing under or by the same,” and thus, an injured person’s spouse has no cause of action for loss of consortium under the statute. If the legislature had meant for the spouse of an injured worker to have a cause of action, it would have inserted language permitting such an action. Since the legislature did not see fit to provide the spouse of an injured person with a cause of action in the statute, we cannot extend the statute by an unnatural interpretation as urged by Barbara Harvel.

Further, we do not find that to so hold frustrates the purpose of the statute. The legislature determined that an injured person’s cause of action was sufficient to encourage an employer to provide safe work conditions, the purpose of the Structural Work Act, and, where the injured person was unable to bring such an action due to his or her death, then the spouse of the deceased person could bring a cause of action. To deny an injured person’s spouse a cause of action under the statute does not defeat the Act’s purpose.

Additionally, this case is analogous to Martin v. Kiendl Construction Co. (1982), 108 Ill. App. 3d 468, 438 N.E.2d 1187. In Martin, the court was confronted with the same issue as presented in the case sub judice, i.e., whether a spouse of an injured worker has a cause of action for loss of consortium under the Structural Work Act. The court in Martin determined, as we did here, that the Structural Work Act did not provide a cause of action for loss of consortium for an injured spouse. Additionally, we agree with the rationale stated in Martin that where a statutory standard of care is created by the legislature in derogation of the common law, as the Structural Work Act is, the legislature is entitled to define who is to be protected by the statute and can exclude persons from that protection. (Martin, 108 Ill. App. 3d 468, 438 N.E.2d 1187.) Therefore, we find that the circuit court’s order dismissing counts III and IV of the plaintiffs’ complaint for failure to state a cause of action under the Structural Work Act was proper.

Barbara has cited numerous cases to support her contention that a loss of consortium cause of action is permitted under the Structural Work Act. We note that all of the cases cited by her for this proposition involved a deceased person’s spouse and are inapposite to the instant case. The Structural Work Act explicitly provides for causes of action for a deceased person’s spouse but does not similarly provide for an injured person’s spouse.

We next address Barbara’s alternative contention that, if she does not have a cause of action under the Structural Work Act, she has a cause of action for loss of consortium under the common law. From the record provided in this case, there is no evidence that this argument was raised before the circuit court. It does not appear that the plaintiffs attempted to amend their complaint to add a common law cause of action for loss of consortium; there is no record of the arguments made before the circuit court regarding the motion to dismiss to show that this issue was argued; and there is no post-trial motion in which this issue is raised. Failure to raise an issue before a circuit court waives that issue on review; therefore, we find this issue was waived by the plaintiff. Schroeder v. Meier-Templeton Associates, Inc. (1985), 130 Ill. App. 3d 554, 474 N.E.2d 744.

For the foregoing reasons, the judgment of the circuit court of Williamson County dismissing counts III and IV of the plaintiffs’ complaint is affirmed.

Affirmed.

WELCH, J., concurs.

JUSTICE RARICK,

dissenting:

Because I see no rational basis to deny recovery to the spouse of an injured worker merely because the worker’s cause of action is brought under the Structural Work Act, I respectfully dissent. My views parallel those of Justice Rizzi as expressed in his dissent in Martin v. Kiendl Construction Co. (1982), 108 Ill. App. 3d 468, 428 N.E.2d 1187. If a defendant’s willful violation of the Structural Work Act results in a tortious interference with the familial relationship between spouses, then the spouse of the injured person should have a common law cause of action against that defendant for loss of consortium. The common law cause of action for loss of consortium has never been dependent upon the co-existence of any statutory right given to the spouse of the injured person. It is an independent action existing solely because of a defendant’s tortious interference with the familial relationship between spouses. (108 Ill. App. 3d at 475, 438 N.E.2d at 1191-92.) As Justice Rizzi so aptly stated, the Structural Work Act is not and was never intended to be an exclusive remedy. 108 Ill. App. 3d at 478, 438 N.E.2d at 1193.-94.

It is true plaintiff here did not specifically plead her loss of consortium claim as a common law cause of action. I believe, however, in the interest of justice, she sufficiently pleaded the operative facts so as to treat the loss of consortium claim as alleging a common law action for loss of consortium. I also believe in the interest of justice the waiver rule should not apply in this instance. As we have noted in the past, the waiver rule exists as a limitation on the parties, not the courts. Allen v. Electoral Board (1986), 147 Ill. App. 3d 782, 784, 493 N.E.2d 878, 879.


text:
    BI-STATE DEVELOPMENT AGENCY, Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant.
    Fifth District
    No. 5—89—0230
    Opinion filed November 20, 1990.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for appellant.
    David H. Bone, of Kassly, Bone, Becker, Dix, Reagan & Young, P.C., of Belleville, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Bi-State Development Agency (hereinafter Bi-State) is the product of a compact entered into between Illinois and Missouri in 1949. Bi-State is authorized to plan, construct, maintain, own and operate bridges, terminals, airports and terminal facilities. (Ill. Rev. Stat. 1989, ch. 127, par. 63r — 1.) With regard to taxation in Illinois, all property owned or held by Bi-State shall possess the same tax status as any property owned or held by a city in Illinois. Ill. Rev. Stat. 1989, ch. 127, par. 63s — 10.

Pursuant to its statutory authority, Bi-State owns the St. Louis Downtown Parks Airport, located in St. Clair County, Illinois. In 1984, Bi-State acquired a parcel of real estate adjacent to the airport and entered into a “Farm Operating License Agreement” (hereinafter Agreement) with Dan Trost, allowing Trost to farm the parcel. The agreement was for the period from September 28, 1984, to September 27, 1985, and from year to year thereafter unless otherwise terminated.

In August of 1986, Bi-State filed an application for property tax exemption for 1986 for the parcel of land owned by Bi-State and farmed by Trost. The Board of Review recommended that the Illinois Department of Revenue (hereinafter Department) approve a full exemption for the property. The Department denied the application for exemption on the basis that the property was not being put to an exempt use. An administrative hearing was then conducted, at Bi-State’s request, and the administrative law judge acting on behalf of the Department issued a disposition finding Bi-State’s interest in the parcel exempt from real estate taxes for 1986. In addition, the administrative law judge found that the agreement between Bi-State and Trost was a lease, and recommended that the value of the leasehold interest in the parcel be assessed to Trost for tax purposes for 1986.

Bi-State filed a complaint for administrative review with the circuit court, praying that the circuit court reverse the decision of the Department insofar as the Department assessed a tax on the value of the leasehold interest held by Trost. On March 14, 1989, the circuit court entered an order reversing the decision of the Department issued by the administrative law judge and ordered the Department to approve the application for property tax exemption for the parcel. The Illinois Department of Revenue filed this appeal.

The Department’s sole contention is that the circuit court’s decision is void and should be vacated because the court lacked jurisdiction to hear the matter. Although prior to this appeal the Department did not object to the circuit court’s authority to hear the case, objections to jurisdiction may be raised for the first time, on appeal. (Carillo v. Jam Productions, Inc. (1983), 97 Ill. 2d 371, 376, 454 N.E.2d 649, 652.) We will, therefore, address the issue raised by the Department.

We begin our analysis of this question by asking whether the findings of the administrative law judge, acting on behalf of the Department, were final administrative decisions. Only a final administrative decision is subject to administrative review in our courts. (See Ill. Rev. Stat. 1989, ch. 110, par. 3 — 102; Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 357, 326 N.E.2d 737, 741.) Determinations of finality, and thus of the court’s subject matter jurisdiction to hear the matter, are specifically challenged here. See City of Wood Dale v. Illinois State Labor Relations Board (1988), 166 Ill. App. 3d 881, 885, 520 N.E.2d 1097, 1099.

Section 3 — 101 of the Code of Civil Procedure defines “administrative decision” or “decision” 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 and which terminates the proceedings before the administrative agency.” (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101.) Bi-State submits that the administrative law judge’s decision regarding the agreement between Bi-State and Trost adversely affected the legal rights and duties of Bi-State’s interest in the agreement. This, reasons Bi-State, clearly shows that the administrative law judge’s decision was not a mere recommendation, but a final administrative order subject to judicial review. We disagree.

Section 14 — 1408 of the Illinois Income Tax Act expressly provides that the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1989, ch. 127, par. 1001 et seq.) applies to all administrative rules and procedures of the Department of Revenue under the Illinois Income Tax Act. (Ill. Rev. Stat. 1989, ch. 120, par. 14 — 1408.) Administrative proceedings may be conducted by hearing officers who refer the case for final determination to a board which has not “heard” the evidence in person. (Homefinders, Inc. v. City of Evanston (1976), 65 Ill. 2d 115, 128-29, 357 N.E.2d 785, 791.) Due process requirements are fulfilled where the hearing officer conveys his findings, conclusions and impressions of conflicting testimony, by either oral or written report, to the decision-making body. 1 Ill. L. & Prac. Administrative Law & Procedure §34 (1988); Southern Illinois Asphalt Co. v. Environmental Protection Agency (1973), 15 Ill. App. 3d 66, 80, 303 N.E.2d 606, 616, aff’d (1975), 60 Ill. 2d 204, 326 N.E.2d 406.

The record includes two documents which were submitted on behalf of the Department after the conclusion of the administrative hearing. The first is a one-page document with the Illinois Department of Revenue logo at the top, entitled “Hearing Disposition Property Tax Exemption.” Bi-State Development Agency is named as the applicant, and the following is shown:

“_ Approved for_ % of year
_Approved for_ % of property
_ — _ Approved
_ Disapproved”

At the bottom of the page is the signature of the administrative law judge George Nafziger. Also included at the bottom of the page is a signature in the space designated “Director,” preceded by the word “Approved.” The document concludes with the admonition, “This hearing disposition may be appealed to the circuit court of the county where the property is located, within 35 days from the date a copy of this hearing disposition was mailed.”

Attached to this single-page document is a four-page document entitled “Recommended Disposition.” Although not signed or dated, the document appears to have been prepared by the administrative law judge. In fact, the Department contends that this document is the recommended disposition of the administrative law judge, and Bi-State does not dispute that the document was prepared by the administrative law judge. After reciting what the administrative law judge believed to be the issues and findings of fact, the document concludes:

“I therefore recommend that the fee interest in St. Clair County parcel No. 01 — 36—0—300—021, owned by Applicant, be exempt from real estate tax for 1986, and that the value of the leasehold interest of Mr. Trost in said parcel be assessed to him for 1986.”

We find that the recommendation as to Trost’s tax liability included in the “Recommended Disposition” was only a recommendation, and not a final administrative decision.

“The Administrative Review Law itself contemplates some sort of adversarial process involving the parties affected, where a hearing on controverted facts is held, and ultimately a disposition is rendered by an impartial officer.” (Emphasis added.) (Taylor v. State Universities Retirement System (1987), 159 Ill. App. 3d 372, 376, 512 N.E.2d 399, 402.) Trost was not a party to the administrative hearing, and the administrative law judge’s finding could not serve as anything more than an informational recommendation to the Department. Since the administrative law judge’s recommendation as to Trost’s tax liability was not a final administrative decision, the circuit ■ court lacked jurisdiction to consider the matter. Ill. Rev. Stat. 1989, ch. 110, pars. 3 — 102, 3 — 104; Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 357, 326 N.E.2d 737, 741.

We also disagree with Bi-State’s position that the circuit court had jurisdiction over the case because Bi-State was adversely affected by the Department’s determination. A party seeking reversal has the burden of establishing prejudice. (Cole v. Guy (1989), 183 Ill. App. 3d 768, 777, 539 N.E.2d 436, 443; Atkins v. Thapedi (1988), 166 Ill. App. 3d 471, 477, 519 N.E.2d 1073, 1077; 3 Ill. L. & Prac. Appeal & Error §802 (1953).) As noted above, the “finding” as to Trost’s tax liability was only a recommended disposition and not a final administrative determination. The Department’s finding as to Bi-State’s exempt tax liability status was a final decision. This decision was in Bi-State’s favor; therefore, we are convinced that Bi-State was not prejudiced by the Department’s hearing disposition.

In light of the foregoing, we vacate the decision of the circuit court.

Vacated.

RARICK and GOLDENHERSH, JJ., concur.