in listening to the arguments this morning and in reflecting somewhat on discourse that has occurred over the past few days regarding the recent nominee of the united states supreme court what i reflected on particularly in hearing the arguments this morning is the importance of continuity in the law and precedent and the  all focused upon and argued that this court's higher decision in people the more really serves as the framework for the decision in this case the in trip occasion and the application of this court's decision in people v more there are differing opinions on how that should be applied and what it really stood for but the focus really revolves around that case and that decision the end in people the more it is our position that this court decided this issue already the trial court the appellate court and counsel for the defendants disagree with that our position is that in more this court focused upon the nature of the summary suspension for seating and in fact made repeated references appellate court decisions and it confirmed that what the court was focusing on in more is the nature of the summary suspension proceeding and whether as a matter of policy it's application to bar under principles of collateral stoffel a subsequent adjudication in that case a criminal prosecution should exist or whether as a matter of policy given the nature of for the defendants that more involved the issue of application to a parallel related criminal proceeding there was nothing in more to indicate that the holding or the underlying policy determination was the court in more noted that the summary suspension proceedings are intended to quickly resolve relatively narrow issues and that the application of collateral estoppel would frustrate the expediency with which summary suspension hearings are to be administered the court noted that if it were to be applied from the summary suspension adjudication to the related criminal prosecution the state would be forced to call witnesses and treat the summer suspension hearing as a trial they rejected the request to apply collateral estoppel under those circumstances because of that policy determination in phi i do not know whether i do not recall that being in the record but what i can tell you is that the cases call for trial there was a an issue relating to the states prepared this for trial the trial court dismissed the proceedings there was a subsequent effort by the state to reinstate the dui prosecution the court period for your request or fission to be filed for a hearing commences with the service of the notice the summary suspension and the issuance of a confirmation by the secretary of state's office you then him under the statute and e hearing the summary suspension no no the hearing on the statutory summary suspension which as the court knows is generated by virtue of the filing of  petition and then the court is is correct that there is a thirty day window which isn't within which the state must afford the defendant an opportunity to contest that suspension that's an under recent case law that can occur at the appearance date in lieu of that thirty day window for the fight after the filing of the petition but the nature of the summer suspension proceeding which this court pointed to and more  have pointed to is that it's an it's in the nature of an administrative function it relates to the license and in fact in some cases the character rate rises that hearing is a license suspension hearing it can be adjudicated upon the officers written reports under the statute that is in place currently so what would normally be inadmissible in a hearing at which there are rights of confrontation or cross examination otherwise the legislature is provided this test first game which the court focused on in more for an expeditious informal somewhat unusual for the court system and that it officers reports because there is a subsequent prosecution or a related prosecution the underlying proceeding should not be allowed to heavy and a stop will think it was the nature of the underlying proceeding and all of the proceedings a year in this case it was handled with an officer testified ng the defendant testifying on an expedited basis no other witnesses no discovery no of none of the mechanisms by which we would normally a surprise the opportunity to in a civil case for someone to fully and fairly litigate a disputed issue a fact and that's consistent with the under says that is quote unworkable and that's the language that more used and it's our position that that case by case approach truly is unworkable because what would happen here is that in a subsequent prosecution assuming that this same rule was applied to bar the state from religion gating issues as it would be applied to a defendant who seeks to relive again the issues in a different form or for different purposes something is equally applied what would happen here is that the court in every subsequent related or unrelated case would then have to have a mini hearing about the opportunities to fully litigate and adjudicate these issues and then they say if you quarrel counsel with i don't want to words in your mouth i mean do you feel in this particular case that the problems with the typical summary suspension proceeding as they relate to given are not present because there was a full blown hearing here no i think the same problems exist and i would i would like to respond more fully to the court's question but i should acknowledge that much of this is beyond the record but responding to the courts and cory the same deficiencies that we see in any expedited proceeding and in particular summary suspension proceedings are existing in this case a hearing and i was not trial counsel for that summary suspension proceeding but a hearing was held in which there was literally no discovery that had been undertaken or forded prior to that hearing it was held on an expedited basis there was no witnesses brought this is what occurred and i officer who says i interpret it differently and this is in the record if the court looks at the trial judge's comments and this here in the trains at fifty one which is part of the record what the court says is quote i have to take into consideration that what we've got is an experience in train observer who for a long time has been observing driving habits and also the driving habits of people impaired the court deferred in part large part out of the experience to the arresting officer in assessing whether or not this issue of probable cause had been sufficiently demonstrate to warrant a denial of the petition to rescind the summary suspension in any thought with a full and fair opportunity to truly contest what is otherwise a very expedited process additional witnesses could have been brought in by trial counsel on behalf of the defendant cross examination of the officers training and experience could have been employed the reports of the officer which i understand were not the basis in this case since there was in person testimony but those reports would not be admissible there would be evidence which could behalf of the defendant to more fully understand the circumstances which existed at that time including such things as in this is noted in the brief the defendant's repeated requests for a blood test instead of test and the defendant's testimony an acknowledgement which also appears on the video that one of his legs is shorter than the other and therefore in this case what we sensually had was an alphabet in the finger count test an officer saying i detected an order of alcohol all all of those proceedings were shortened and the impact of that is important to take into account because the impact is the court knows was one of the things that the court in tolerate go which did they impose a case by case type analysis from the guilty plea one of the things the court looked at there was what is the im defending himself from a civil suit when he had a negotiated plea in a criminal case which the system encourages in this case the effect of the suspension depending up on whether you're a first offender or not a first offender is anywhere from three to six although recently change six two months to a year but at the end of that suspension period upon the payment of a reinstatement free your license is reinstated it does not have the same the summary suspension proceeding if it is going to foreclose by virtue of a stop them either subsequent prosecutions or for clues civil actions will do exactly what this court ad yes and how does that impact this that is before us in this way i believe john the malicious prosecution case in this is were cited in the defendant's brief as well is not a of action which has been favored in the law in fact the constraints on it are very stringent you have to demonstrate not only an absence of probable cause but malice you have been to keep demonstrate that the criminal or civil process prosecutions or proceedings were instituted you have to indicate and prove that they were terminated in your favor this is the way i think it impacts for purposes of today in a malicious prosecution case although i do not believe that this rule in more should be determined on a case by case basis based on the subsequent proceeding is not what more talked about but based on the subsequent proceeding a malicious prosecution case has its own built in  biases against a plaintiff proceeding and proceeding successfully not only in terms of the damages issue but the malice issue the probable cause issue the terminations in their favor there are there are going to rule upon that issue and they ruled entirely upon this near a legal it legal issue regarding the application of the doctrine of pleasurable stoppel to a any proceeding other than a subsequent related or unrelated criminal prosecution they read them or decision to say this only applies to criminal prosecutions he and we're going to look at on a case by case basis  estoppel it would have to be remanded to the trial court for further proceedings consistent with this court's opinion which would include subsequent proceedings discovery depositions relating to the question of malice thank  the suspension of his driver's license it would really have no impact on this today that i think it fits it would still the analysis should be the same it's the nature and the actual decisions made at the suspension hearing that are being applied today and in this case one of the elements that the plaintiff in this case must prove is that the defendant andrew charles acted without probable cause he stopped him or arrested him without probable cause  position is simply that the suspension here in determination that there was probable cause there's a bar to him now coming before the court to argue that there was an absence of probable cause and i would suggest to you opposing counsel has indicated that there are fifty thousand statutory summary suspension hearings in the state of illinois if collateral stoppel was to give rise to a bar in the criminal prosecution i would submit that there would be fifty thousand statutory fought to the death if you will because of the a fact and the impact or the potential impact on the dui prosecution would force these the state to really contest the statutory summary suspension and that is the rationale and the gist of the decision of this court in moore that same rationale does not apply to the context of a civil lawsuit in this case for malicious prosecution simply the state is not going to alter its behavior in the criminal prosecution or in the statutory summary suspension stage opposing counsel argues that a defendant it at the suspension stage may have  more concerns and risks for some perspective future litigation but i would suggest to the court that given today's environment with the need for a driver's license any litigant who's lost his driver's license has ample motivation and incentive to put his best foot forward at that suspension jerry to have the license reinstated in this case although it's after the fact mr holder to testify that he's lost fifty thousand dollars an approximation or estimation because of the loss of his license counsel suggests that they after the fact analysis but in any case the motivation to litigate an issue is the risk or the threat of  read and why would the rationale of that apply to a civil cases well i would suggest that with respect to the suspension hearing and the the nature of it essent  as well as the right to appeal basically to the summary suspension statute provides for the application of the rules of civil procedure the course of the suit procedure applies given that he has that availability and he has the option of an issue this is spent in hearing that there is no reason or rationale really not to bind him by those results he can prosecuted and of sort whatever claims he may have with the motivation of a loss of a license intoxication issue and that's i think the concern of the court and more is that if the probable cause determination is that determined adversely at that hearing because the state chose to rely upon a traffic report rather than calling the police o r the state should not then be precluded from introducing evidence because the issue of probable cause was already resolved and those concerns the impact on the prosecution simply don't apply in a civil lawsuit at hand there was more presented or less presented and more it does say that that is unworkable to do a case by case roads or we left with whether more applies only in the criminal context or we left it is that the dui case very correct correct a criminal crime back then you fail that is essentially it your honor it boils down to simple simply that but i would submit to the court that it's not the nature of the proceedings the summary or the the expedited proceedings that are critical it's the dependence or the informality that the state is afforded and the impact that that would have on a criminal prosecution for dui with the probable cause finding going  adversely to them but again a guy get back to the nature of the proceedings in this particular case i would suggest that plaintiff has submitted to the trial court at the suspension hearing all that evidence which is available counsel is it in if i  witness no piece of evidence that was not available to him at the trial court level we're at the suspension hearing anyway and he's down identified any specific limitation on his right to present testimony or evidence suspension hearing so a case by case approach really does accommodate all those concerns with respect to limitations on discovery or breviary procedures that might be imposed by a trial court clitoral stoppel is an equitable doctrine the court can consider the the equities and the justice involved in the particular precise application but an across the board prohibition with respect to civil litigation i think goes a little bit further than what at least the language more suggests implies counsel suggest that the goodness of the sense would because the suspension hearing his name described as an administrative in nature that really shouldn't be given collateral stoppel of fact i think the law's fairly straightforward collateral arises from judgments or decisions bad news traded for buells on a regular basis that really in and of itself is not a basis to deny the application collateral stop so forth would always want to make sure they have an airtight probable cause because they're looking over their shoulder in terms of future not that there's any but they want to make sure to protect themselves right future malicious prosecution so now what was supposed to be statutory summary you now have an incentive to also make it a focal to preclude the potential right malicious prosecution goes resolutely against you i would suggest that the mere numbers as it's distilled down from the i don't think it would turn everyone into a mini trial i suppose it could if the state is motivated in that foresightful through a dissipate potential litigation i suppose it would have the the opposite effect but the concern in more wasn't with potential future litigation it was with the almost certain dui prosecution that was going to follow and that and that really was the focus of more  i know we're here today on the the militias i'm sorry the collateral stoppel issue but in our brief we address the issue of malice it was raised at the trial court it was raised at the appellate court level neither court decided prosecution claim plaintiff has suggested that the absence of probable cause somehow gives rise to a inference or a suggestion that there is malice the cases are clear malice cannot be in identified no personal animosity no personal reason why the police officer would have it in for him in the absence of that any evidence of that there's no evidence of malice animosity does not necessarily  malice but in the absence of any animosity can't really jump to the conclusion that there was some malice on the part of the arresting officer but the issue really turns on whether if you assume that there was no probable cause does that absence give rise to some sort of inference of malice in the cases are fairly straightforward that malice cannot be inferred from a watch of probable cause it must be the absence of probable cause plus other circumstances for your guess so firm on any basis and that basis in the absence of malice but i again my question goes to do we really is there anywhere were a court below actually ruled on that issue or did it stop it at the collateral stop i've got it they stopped at the collateral stoppel issue so it would be up to us to address now positions and and as a matter of law decide the summary judgment issue s really we must correct your honor now in a minute out or certainly that would be an option but i would suggest the court has the the option to affirm on any basis supported or for a period in the record and i would suggest or submit that arise in a subsequent licious prosecution case with respect in particular with respect to the issue of probable cause and this is noted in the brief i would ask the court to be mindful in assessing that argument that amongst all of the other problems which would apply to the application of a decision in the summers mentioned proceeding  that every person who is unable to afford counsel charged with a dui risking possible in prison is intitled to appointed counsel generally a public defender and that this court has noted in the flynn case which is noted in the brief in costs versus later said you're not entitled to appointed counsel for summer suspension prosy so if some one who has a public defender wishes to contest the suspension of their li either have to find money which apparently they couldn't find to hire private counsel to defend the criminal prosecution to handle a summary suspension it or i would also respectfully submit that one teller which limits discovery is wrong the use of police reports is wrong if there is a bar created by virtue of collateral estoppel to any subsequent proceedings arising from a summary suspension proceeding by necessity you're entitled then to a full and fair opportunity to litigate those issues the tolerate the decision from this court went in its discussion through an extensive recitation of the facts including the advice of counsel and what the were and what the incentive was and what the impact of the plea negotiations would be long term on the plaintiff that case by case approach is simply on workable and the more court said and we would ask the court to reaffirm that aspect of more than counsel indicates it's not really the nature of the underlying proceedings which is that issue i would respectfully disagree both more and guma versus whites that it is the nature of those summary suspension proceedings which at issue the time the money the expense the political consequences of litigating fully and fairly a summary suspension which could last at that point time three months or now six months the end and neither of as good as the court noted neither the circuit court who had the record before which did not include evidence and in fact in the defendant's own brief there's one paragraph that says they haven't demonstrated malice but this notion that if there's not personal animus if the police officer didn't know this individual didn't express his trade for him in some way you can't demonstrate malice isn't true as a matter of law and in fact the case law which we