DuPage Court Throws Out Summary Suspension, Illinois DUI Deemed Improper

GENERAL NO. 2-11-0111
APPELLATE COURT OF THE STATE OF ILLINOIS
SECOND JUDICIAL DISTRICT


VILLAGE OF DOWNERS GROVE,
Plaintiff-Appellant,

)
) Appeal from DuPage County
) of the 18th Judicial Circuit
) DuPage County, Illinois

-vs-)
) Circuit Court Case No: 10 DT 4134
)
PAUL G. FIELDER,
Defendant-Appellee.

) The Honorable Neal W. Cerne,
) Judge Presiding
)


BRIEF AND ARGUMENT FOR DEFENDANT-APPELLEE

Donald J. Ramsell

Ramsell & Associates, L.L.C.

128 S. County Farm Rd., #F

Wheaton, IL 60187

(630) 665-8780

ORAL ARGUMENT REQUESTED

POINTS AND AUTHORITIES

A. THE TRIAL COURT CORRECTLY RESCINDED THE SUMMARY SUSPENSION BECAUSE, AS THE STATE CONCEDES, THE DEFENDANT WAS NOT PROPERLY PLACED UNDER ARREST FOR A VIOLATION OF 11-501 OR A SIMILAR PROVISION OF A LOCAL ORDINANCE, WHICH IS THE FIRST GROUND FOR RESCISSION UNDER 625 ILCS 5/2-118.1

PAGE

Chapter 625 ILCS 5/2-118.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Section 11-501.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

People v. Krueger 208 Ill.App.3d 897, 904, 567 N.E.2d 717,

721, 153 Ill.Dec. 759, 763 (Ill.App. 2 Dist.,1991) . . . . . . . . . . . . . . . . . . . . . . 7

People v. McClain (1989( 128 Ill.2d 500, 132 Ill.Dec 441. . . . . . . . . . . . . . . . 7

People v. Cooper, 174 Ill.App.3d 500, 124 Ill.Dec. 120

528 N.E.2d 1011 (2d. Dist. 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

People v. Palacios, 266 Ill.App.3d 341, 203 Ill.Dec. 737 (3rd Dist. 1994) . . . . 7

People v. Peterson 2011 WL 3188933, 15 (Ill.App. 3 Dist.)

(Ill.App. 3 Dist.,2011) citing to Leonardi v. Loyola University of Chicago,

168 Ill.2d 83, 97, 212 Ill.Dec. 968, 658 N.E.2d 450 (1995) . . . . . . . . . . . . 7

People v. Reed, 361 Ill.App.3d 995, 1000, 297 Ill.Dec. 841,

838 N.E.2d 328 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

B. THE STATE IN ITS NOTICE OF APPEAL DID NOT APPEAL THE DENIAL OF ITS PETITION TO INTERVENE. RATHER, IT ONLY APPEALED FROM THE RULING ON THE MERITS FOLLOWING AN EVIDENTIARY HEARING.

1. SINCE THE STATES BRIEF FAILED TO INCLUDE IN ITS STATEMENT OF FACTS THE ACTUAL EVIDENCE HEARD DURING THE SUMMARY SUSPENSION HEARING, IT HAS FORFEITED THE RIGHT TO CHALLENGE WHETHER THE TRIAL COURT'S DECISION TO RESCIND ON THE FACTS WAS IN ERROR.

Illinois Supreme Court Rule 341(h)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Niewold v. Fry, 306 Ill. App. 3d 735, 239 Ill. Dec. 785,

714 N.E.2d 1082 (2d Dist. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2. FURTHER, SINCE THE STATE FAILED TO INCLUDE IN ITS NOTICE OF APPEAL THE DENIAL OF ITS PETITION TO INTERVENE, IT HAS FORFEITED THE RIGHT TO HAVE THIS COURT REVIEW THE TRIAL COURT'S ORDER REGARDING THE SAME.

PAGE

Illinois Supreme Court Rule 302(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Wolcott v. Village of Lombard (1944), 387 Ill. 621, 624, 57 N.E.2d 351 . . . . . . 9

Francke v. Eadie (1940), 373 Ill. 500, 502, 26 N.E.2d 853. . . . . . . . . . . . . . . . . . 9

6 C. Nichols, Illinois Civil Practice sec. 6131 (1975). . . . . . . . . . . . . . . . . . . . . . 9

People v. Lowe (1975),30 Ill.App.3d 49, 51, 331 N.E.2d 639 . . . . . . . . . . . . . . . 9

People v. Harvey (1972), 5 Ill.App.3d 499, 502, 285 N.E.2d 179 . . . . . . . . . . . . 10

People v. Ilg (1965), 60 Ill.App.2d 295, 298, 210 N.E.2d 20 . . . . . . . . . . . . . . . . 10

Elfman Motors, Inc. v. ChryslerCorp. (3d Cir. 1977) 567 F.2d 1252, 1254 . . . . . 10

Burtell v. First Charter Service Corp. 76 Ill.2d 427, 433,

394 N.E.2d 380, 382, 31 Ill.Dec. 178, 180 (Ill., 1979) . . . . . . . . . . . . . . . . . . . . . . 10

C. EVEN IF THE STATE HAD THE RIGHT TO INTERVENE, THE COURT PROPERLY DENIED THEIR VERBAL REQUEST TO DO SO, AS IT WAS NOT IN COMPLIANCE WITH THE CIVIL CODE OF PROCEDURE, WHICH REQUIRES A WRITTEN PETITION ALONG WITH PROPOSED PLEADINGS OR MOTIONS.

PAGE

735 ILCS 5/2-408 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

D. THE TRIAL CORRECTLY RESCINDED THE SUSPENSION, WHERE THE POLICE OFFICER STOPPED THE DEFENDANT BASED SOLELY ON THE ILLEGAL USE OF A RADAR GUN

PAGE

People v. Lahr 147 Ill.2d 379, 589 N.E.2d 539, 168 Ill.Dec. 139 (Ill.,1992) . . . . 12

People v. Peterson 2011 WL 3188933, 15 (Ill.App. 3 Dist.)

(Ill.App. 3 Dist.,2011) citing to Leonardi v. Loyola University of Chicago,

168 Ill.2d 83, 97, 212 Ill.Dec. 968, 658 N.E.2d 450 (1995) . . . . . . . . . . . . . . . . . 12

People v. Reed, 361 Ill.App.3d 995, 1000, 297 Ill.Dec. 841,

838 N.E.2d 328 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

GENERAL NO. 2-11-0111
APPELLATE COURT OF THE STATE OF ILLINOIS
SECOND JUDICIAL DISTRICT


VILLAGE OF DOWNERS GROVE,
Plaintiff-Appellant,

)
) Appeal from DuPage County
) of the 18th Judicial Circuit
) DuPage County, Illinois

-vs-)
) Circuit Court Case No: 10 DT 4134
)
PAUL G. FIELDER,
Defendant-Appellee.

) The Honorable Neal W. Cerne,
) Judge Presiding
)


BRIEF AND ARGUMENT FOR DEFENDANT-APPELLEE

A. THE TRIAL COURT CORRECTLY RESCINDED THE SUMMARY SUSPENSION BECAUSE, AS THE STATE CONCEDES, THE DEFENDANT WAS NOT PROPERLY PLACED UNDER ARREST FOR A VIOLATION OF 11-501 OR A SIMILAR PROVISION OF A LOCAL ORDINANCE, WHICH IS THE FIRST GROUND FOR RESCISSION UNDER 625 ILCS 5/2-118.1

In its Brief, the State concedes that the Defendant was improperly charged with violating the Village of Downers Grove DUI ordinances. Further, the State concedes that the Complaint for DUI improperly named the Village of Downers Grove as the plaintiff. Chapter 625 ILCS 5/2-118.1, entitled "Opportunity for hearing; statutory summary alcohol or other drug related suspension or revocation pursuant to Section 11-501.1", states in pertinent part as follows:

(b) Within 90 days after the notice of statutory summary suspension or revocation served under Section 11-501.1, the person may make a written request for a judicial hearing in the circuit court of venue. The request to the circuit court shall state the grounds upon which the person seeks to have the statutory summary suspension or revocation rescinded. Within 30 days after receipt of the written request or the first appearance date on the Uniform Traffic Ticket issued pursuant to a violation of Section 11-501, or a similar provision of a local ordinance, the hearing shall be conducted by the circuit court having jurisdiction. This judicial hearing, request, or process shall not stay or delay the statutory summary suspension or revocation. The hearings shall proceed in the court in the same manner as in other civil proceedings.

The hearing may be conducted upon a review of the law enforcement officer's own official reports; provided however, that the person may subpoena the officer. Failure of the officer to answer the subpoena shall be considered grounds for a continuance if in the court's discretion the continuance is appropriate.

The scope of the hearing shall be limited to the issues of:

1. Whether the person was placed under arrest for an offense as defined in Section 11-501, or a similar provision of a local ordinance, as evidenced by the issuance of a Uniform Traffic Ticket, or issued a Uniform Traffic Ticket out of state as provided in subsection (a) of Section 11-501.1; and

2. Whether the officer had reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle upon a highway while under the influence of alcohol, other drug, or combination of both; and

3. Whether the person, after being advised by the officer that the privilege to operate a motor vehicle would be suspended or revoked if the person refused to submit to and complete the test or tests, did refuse to submit to or complete the test or tests to determine the person's alcohol or drug concentration; or

4. Whether the person, after being advised by the officer that the privilege to operate a motor vehicle would be suspended if the person submits to a chemical test, or tests, and the test discloses an alcohol concentration of 0.08 or more, or any amount of a drug, substance, or compound in the person's blood or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act, a controlled substance listed in the Illinois Controlled Substances Act, an intoxicating compound as listed in the Use of Intoxicating Compounds Act, or methamphetamine as listed in the Methamphetamine Control and Community Protection Act, and the person did submit to and complete the test or tests that determined an alcohol concentration of 0.08 or more.

5. If the person's driving privileges were revoked, whether the person was involved in a motor vehicle accident that caused Type A injury or death to another.


625 ILCS 5/2-118.1 (italicized emphasis added)

Whether the person was properly charged with DUI is subject to review at a summary suspension hearing under 625 ILCS 5/2-118.1(b)(1). As the Second District has previously stated, "We hold that the arrest required by the first paragraph must be a lawful and valid arrest." People v. Krueger 208 Ill.App.3d 897, 904, 567 N.E.2d 717, 721, 153 Ill.Dec. 759, 763 (Ill.App. 2 Dist.,1991). Clearly, arresting and charging the defendant with a violation of the Downers Grove DUI ordinance and naming the Village of Downers Grove as the prosecuting authority, when the facts at the hearing established that he had never been inside the Village of Downers Grove during the events in question, established that he was entitled to a rescission under this subsection.

The Illinois Supreme Court has previously held that a trial court may consider the deficiencies in the arrest documents in deciding whether to rescind a summary suspension for defective pleadings. People v. McClain (1989) 128 Ill.2d 500, 132 Ill. Dec 441. Even the appellate courts have upheld rescission where defects arguably less minor, such as the correct date of service of a Notice of Suspension were involved. People v. Cooper, 174 Ill.App.3d 500, 124 Ill.Dec. 120, 528 N.E.2d 1011 (2d. Dist 1988); People v. Palacios, 266 Ill.App.3d 341, 203 Ill.Dec. 737 (3d Dist. 1994).

Even if the court accepts the State's position in this matter i.e., that the State of Illinois was the real party and that the State's Attorney therefore had the ability to appear in the case, the trial court's decision to rescind was still correct due to the fatal defects in the charging documents.

Even if the trial court didn't articulate the basis for rescission as succinctly as possible, or even if the court's reasoning turns out to be incorrect, a reversal of its judgment is unnecessary due to the many other valid reasons why rescission was ultimately the correct result here. An appellate court may affirm the decision of the trial court for any reason, as long as it is supported by the record. People v. Peterson 2011 WL 3188933, 15 (Ill.App. 3 Dist.) (Ill.App. 3 Dist.,2011) citing to Leonardi v. Loyola University of Chicago, 168 Ill.2d 83, 97, 212 Ill.Dec. 968, 658 N.E.2d 450 (1995) (noting that a reviewing court "can sustain the decision of a lower court on any grounds which are called for by the record, regardless of whether the lower court relied on those grounds and regardless of whether the lower court's reasoning was correct"); People v. Reed, 361 Ill.App.3d 995, 1000, 297 Ill.Dec. 841, 838 N.E.2d 328 (2005) ("[w]e review the trial court's judgment, not its rationale," and "[w]e can affirm for any reason the record supports").

Since the defects in the pleadings suggested that the arrest of the defendant for violating a Downers Grove ordinance was invalid, and that the Village of Downers Grove should not have been named as the proper prosecuting authority, rescission was proper under the applicable caselaw.

B. THE STATE IN ITS NOTICE OF APPEAL DID NOT APPEAL THE DENIAL OF ITS PETITION TO INTERVENE. RATHER, IT ONLY APPEALED FROM THE RULING ON THE MERITS FOLLOWING AN EVIDENTIARY HEARING.

1. SINCE THE STATES BRIEF FAILED TO INCLUDE IN ITS STATEMENT OF FACTS THE ACTUAL EVIDENCE HEARD DURING THE SUMMARY SUSPENSION HEARING, IT HAS FORFEITED THE RIGHT TO CHALLENGE WHETHER THE TRIAL COURT'S DECISION TO RESCIND ON THE FACTS WAS IN ERROR.

Illinois Supreme Court Rule 341(h)(6) requires the Appellant to provide a Statement of Facts sufficient for the appellate court to fairly and fully understand the facts necessary to make rulings in the matter at hand. Although the State has appealed this matter on the merits, they have failed to provide any reference to the testimony provided by the arresting officer in support of the Petition to Rescind. By failing to provide such necessary facts, the State's right to argue that the trial court's ruling on the merits was erroneous should be deemed forfeited. The failure to comply with the Supreme Courts Rules governing Briefs can result in the striking of any and all parts of a brief, and may also include dismissal of the appeal in its entirety. See, e.g. Niewold v. Fry, 306 Ill. App. 3d 735, 239 Ill. Dec. 785, 714 N.E.2d 1082 (2d Dist. 1999). Even if it were not stricken, the failure to so provide an adequate Statement of Facts should leave this court unable to overrule the trial court's ruling on the merits. To the extent that missing facts are important to Appellee's Brief, Appellee will attempt to supply those facts during the presentation of its argument.

2. FURTHER, SINCE THE STATE FAILED TO INCLUDE IN ITS NOTICE OF APPEAL THE DENIAL OF ITS PETITION TO INTERVENE, IT HAS FORFEITED THE RIGHT TO HAVE THIS COURT REVIEW THE TRIAL COURT'S ORDER REGARDING THE SAME.

The Notice of Appeal filed by the State stated that it was appealing from the "Order rescinding summary suspension" and "Order denying Mot to Recon". (c.42) But in its Brief the State has failed to inform this appellate court of the actual evidence which the trial court heard from the arresting Officer during the summary suspension hearing, which was relied upon by the trial court before it decided to grant the Petition to Rescind. Thus, the State has failed to even establish that the court's ultimate decision to rescind was actually in error, which is the only basis the claimed on appeal. As it stated in its jurisdictional statement:

"[T]he People not only are seeking review of a final order rescinding the statutory summary suspension of the defendant's driving privileges, but also the trial court's effectively denying the People's motion to reconsider on the same hyper-technical basis." (State's Brief p.5)

In its Brief, the State fixates on its inability to intervene in the case, but its Notice of Appeal does not even identify the Order denying their Petition to Intervene as an order from which they are appealing. As such, this issue has been forfeited.

Illinois Supreme Court Rule 302(b)(2) states in pertinent part as follows:

(b) Form and Contents of Notice of Appeal.

* * *

(2) It shall specify the judgment or part thereof or other orders appealed from and the relief sought from the reviewing court.

IL ST S. Ct. Rule 312

Further, the Notice of Appeal filed in this matter states that the State is appealing an order "denying" a Motion to Reconsider. (c.42) In fact the Motion to Reconsider was never 'denied'. The trial court struck the Motion to Reconsider after denying the State's late Petition to Intervene.

The actual transcript of the proceeding reads:

"MR. COSTELLO (Assistant States Attorney): So its denied - the motion to reconsider --

THE COURT: It's not denied. It's just striken (sic). We're not getting to it."

MR. COSTELLO: Thank you, your Honor.

THE COURT: "We're not ruling on it." (c.73)

"When a notice of appeal is perfected the trial court loses jurisdiction as to the judgment or part thereof from which the appeal is taken and, as to such matter, the case thereafter proceeds in the appellate court not as a new case but as a continuation of the case in the trial court. (Wolcott v. Village of Lombard (1944), 387 Ill. 621, 624, 57 N.E.2d 351; Francke v. Eadie (1940), 373 Ill. 500, 502, 26 N.E.2d 853; 6 C. Nichols, Illinois Civil Practice sec. 6131 (1975).) Thus, it is often stated that a notice of appeal confers jurisdiction on a court of review to consider only the judgments or part thereof specified in the notice of appeal. People v. Lowe (1975),30 Ill.App.3d 49, 51, 331 N.E.2d 639; People v. Harvey (1972), 5 Ill.App.3d 499, 502, 285 N.E.2d 179; People v. Ilg (1965), 60 Ill.App.2d 295, 298, 210 N.E.2d 20; accord, Elfman Motors, Inc. v. Chrysler Corp. (3d Cir. 1977), 567 F.2d 1252, 1254." Burtell v. First Charter Service Corp. 76 Ill.2d 427, 433, 394 N.E.2d 380, 382, 31 Ill.Dec. 178, 180 (Ill., 1979).

C. EVEN IF THE STATE HAD THE RIGHT TO INTERVENE, THE COURT PROPERLY DENIED THEIR VERBAL REQUEST TO DO SO, AS IT WAS NOT IN COMPLIANCE WITH THE CIVIL CODE OF PROCEDURE, WHICH REQUIRES A WRITTEN PETITION ALONG WITH PROPOSED PLEADINGS OR MOTIONS.

In the instant case, the State did not seek to intervene until after the summary suspension hearing had begun, and evidence had been taken. The State's oral request, accompanied by a failure to have any proposed pleadings, was properly denied, just as the court ruled. The intervention statute, 735 ILCS 5/2-408, states in pertinent part as follows:

§ 2-408. Intervention. (a) Upon timely application anyone shall be permitted as of right to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody or subject to the control or disposition of the court or a court officer.

(b) Upon timely application anyone may in the discretion of the court be permitted to intervene in an action: (1) when a statute confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common.

(c) In all cases involving the validity of a constitutional provision, statute or regulation of this State and affecting the public interest, the State upon timely application may in the discretion of the court be permitted to intervene.

(d) In all cases involving the validity of an ordinance or regulation of a municipality or governmental subdivision of this State and affecting the public interest, the municipality or governmental subdivision upon timely application may in the discretion of the court be permitted to intervene.

(e) A person desiring to intervene shall present a petition setting forth the grounds for intervention, accompanied by the initial pleading or motion which he or she proposes to file. In cases in which the allowance of intervention is discretionary, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.


735 ILCS 5/2-408 (emphasis supplied)


Since the court found the State's requests to intervene untimely, it was within its discretion to deny that request.

D. THE TRIAL CORRECTLY RESCINDED THE SUSPENSION, WHERE THE POLICE OFFICER STOPPED THE DEFENDANT BASED SOLELY ON THE ILLEGAL USE OF A RADAR GUN

If the merits of the rescission of the suspension by the trial court form the basis for this appeal (as the State claims in its Jurisdictional Statement), then it should be pointed out that the State's Brief has failed to argue why the arresting officer's testimony does not support a rescission.

In fact the testimony taken during the hearing establishes that the officer's stop of the vehicle was illegal. Here, the officer testified that the sole basis for the stop of defendant's car was the use of a radar gun outside of his municipality. The testimony was as follows:

Q: (Defense Attorney) Okay. The vehicle that the defendant was operating was going westbound?

A: (Robert Page, Village of Bartlett Police Officer) Yes, it was.

Q: That specific location, what county is that in?

A: That's DuPage County.

Q: And that specific location, is it inside any municipal limits?

A: It is not. That's the unincorporated portion of DuPage County.

Q: All right. Did you use a radar device to obtain the speed of the vehicle?

A: Yes. (c.4 lines 1-13)

* * *

Q: Did you rely on your own personal observation in order to decide whether to stop the vehicle or not?

A: Absolutely not.

Q: You relied on the radar?

A: Yes. (c.6 lines 18-22)

* * *

Q: And when you caught up to the vehicle and stopped it, what town, if any, was it at the spot of the actual stop?

A: I pulled him over in the construction area. That still would probably be in the unincorporated area of DuPage County.

Q: And had you observed any other alleged violations of the law or rules of the road prior to stopping it other than whatever your radar told you was the speed of the vehicle?

A: No. (c.7 Lines 10-22).

In People v. Lahr, it was held that a municipal police officer's extraterritorial arrest of a speeding motorist was not valid, where the officer had used a radar gun from a location outside the boundaries of his municipality; and no evidence was presented that the officer was able to determine that the motorist was speeding without the aid of radar. People v. Lahr 147 Ill.2d 379, 589 N.E.2d 539, 168 Ill.Dec. 139 (Ill.,1992). That case could not be more controlling to establish that the stop of defendant was illegal, and that the trial court's granting of the petition was proper, no matter who should have been the prosecutor in this case.

As stated in other portions of this Brief, an appellate court may affirm the decision of the trial court for any reason, as long as it is supported by the record. People v. Peterson 2011 WL 3188933, 15 (Ill.App. 3 Dist.) (Ill.App. 3 Dist.,2011) citing to Leonardi v. Loyola University of Chicago, 168 Ill.2d 83, 97, 212 Ill.Dec. 968, 658 N.E.2d 450 (1995) (noting that a reviewing court "can sustain the decision of a lower court on any grounds which are called for by the record, regardless of whether the lower court relied on those grounds and regardless of whether the lower court's reasoning was correct"); People v. Reed, 361 Ill.App.3d 995, 1000, 297 Ill.Dec. 841, 838 N.E.2d 328 (2005) ("[w]e review the trial court's judgment, not its rationale," and "[w]e can affirm for any reason the record supports").

Unless the State can convince this Court that Officer Page's additional testimony at their behest would completely undo his sworn testimony above, then the court should find that the court's rulings, even if they were error, were harmless.

CONCLUSION

For all of the above reasons, the Defendant-Appellee prays that this court deny the State's appeal in its entirety.

Respectfully Submitted

RAMSELL & ASSOCIATES, L.L.C.

Donald J. Ramsell

RAMSELL & ASSOCIATES, L.L.C.

128 S. County Farm Rd., #F

Wheaton, IL 60187

(630) 665-8780

GENERAL NO. 2-11-0111
APPELLATE COURT OF THE STATE OF ILLINOIS
SECOND JUDICIAL DISTRICT


VILLAGE OF DOWNERS GROVE,
Plaintiff-Appellant,

)
) Appeal from DuPage County
) of the 18th Judicial Circuit
) DuPage County, Illinois

-vs-)
) Circuit Court Case No: 10 DT 4134
)
PAUL G. FIELDER,
Defendant-Appellee.

) The Honorable Neal W. Cerne,
) Judge Presiding
)


CERTIFICATE OF COMPLIANCE

I certify that this Appellee's Brief conforms to the requirements of Rules 341(a) and (b). The length of this Brief, excluding the Appendix, is 13 pages.

Donald J. Ramsell

RAMSELL & ASSOCIATES, L.L.C.

128 South County Farm Rd., #F

Wheaton, IL 60187

(630) 665-8780

Atty. No. 1133