{ "id": 4307065, "name": "THE VILLAGE OF RICHMOND, Plaintiff-Appellant, v. GARY E. MAGEE, Defendant-Appellee", "name_abbreviation": "Village of Richmond v. Magee", "decision_date": "2011-01-28", "docket_number": "No. 2\u201410\u20140169", "first_page": "560", "last_page": "569", "citations": [ { "type": "official", "cite": "407 Ill. App. 3d 560" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "202 Ill. 2d 228", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442059 ], "year": 2002, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0228-01" ] }, { "cite": "98 Ill. App. 3d 418", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499401 ], "year": 1981, "pin_cites": [ { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0418-01" ] }, { "cite": "74 Ill. App. 2d 49", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2580338 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/74/0049-01" ] }, { "cite": "61 Ill. App. 2d 360", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5300597 ], "weight": 3, "year": 1965, "pin_cites": [ { "page": "365-66" }, { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/61/0360-01" ] }, { "cite": "402 Ill. App. 3d 362", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5768243 ], "year": 2010, "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/402/0362-01" ] }, { "cite": "237 Ill. App. 3d 208", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5164130 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "211" }, { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/237/0208-01" ] }, { "cite": "316 Ill. App. 3d 130", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1096623 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "135" }, { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/316/0130-01" ] }, { "cite": "63 Ill. 2d 128", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426498 ], "year": 1976, "pin_cites": [ { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0128-01" ] } ], "analysis": { "cardinality": 845, "char_count": 22126, "ocr_confidence": 0.788, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1450501554337724 }, "sha256": "29d46be268deb402574d7135d1a5d9f0e4397f77bc7ef97b98b00ffdb55b5f28", "simhash": "1:c629ee45610b82e1", "word_count": 3674 }, "last_updated": "2023-07-14T15:37:05.247121+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE VILLAGE OF RICHMOND, Plaintiff-Appellant, v. GARY E. MAGEE, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE ZENOFF\ndelivered the judgment of the court, with opinion.\nJustices Burke and Schostok concurred in the judgment and opinion.\nOPINION\nPlaintiff, the Village of Richmond, charged defendant, Gary E. Ma-gee, with driving an overweight vehicle. Richmond Village Code 15.01(a) (amended Nov. 16, 2006). After a bench trial, the trial court entered a judgment for defendant. Plaintiff appeals. We reverse and remand.\nPlaintiff alleged by complaint that, on October 20, 2008, defendant operated a second-division motor vehicle with a gross weight of 17,000 pounds, although its maximum permitted weight was only 6,000 pounds. The ordinance under which defendant was charged adopted the Illinois Vehicle Code, including section 3\u2014401(d) of the statute (625 ILCS 5/3\u2014401(d) (West 2008)).\nAt trial, plaintiff first called Mark Andrews, an Illinois State Police officer. On direct examination, he testified as follows. He was a truck weight inspector and a certified truck enforcement officer. On Thursdays and Fridays, he worked at the Richmond scale on Route 12. When he was not there, some other State Police officers had access to the scale house, but Richmond officers did not. The scale stood directly in front of the building. Andrews identified photographs, later admitted into evidence, of the scale house and the scale. The photographs showed that inside the scale house was a digital display with a printer.\nAndrews explained the operation of the Richmond scale and similar scales. Before each truck is weighed, the display must read zero. After each weighing, the display must be returned to zero. Trucks are weighed axle by axle. The scale does not need to be \u201czeroed out\u201d after each axle is weighed, but only before the first axle is weighed and after the last one is weighed.\nAndrews testified that the Richmond scale was certified, meaning that the Department of Agriculture (DOA) had tested it and found it fit for operation. A decal so signifying was affixed to the display and could not be removed without being damaged. The scale had been certified annually.\nAndrews identified and described several documents that were later admitted into evidence. Plaintiff\u2019s exhibit No. 10 stated the results of tests performed on the Richmond scale on January 8, 2008, by David Biggs, a DOA inspector. Plaintiffs exhibit No. 11 stated the results of tests that Biggs performed on the scale on January 6, 2009. Plaintiffs exhibit No. 12 was a cover sheet, prepared August 22, 2008, and signed by John Harris of Fairbanks Service (Fairbanks), the scale\u2019s manufacturer. The cover sheet stated that, on that day, a new display and a new attached printer had been installed. Plaintiffs exhibit No. 13, also signed by Harris, stated that, on October 7, 2008, maintenance, inspection, and testing had been performed on the scale. Plaintiffs exhibit No. 14, also signed by Harris, showed \u201cthe actual numbers\u201d that he recorded during the test. Plaintiff\u2019s exhibit No. 15, dated August 22, 2008, and signed by Harris, was an \u201cin-service report\u201d for the scale.\nAndrews testified that, on October 20, 2008, there were \u201cactually two stickers on the display.\u201d One was from Fairbanks, showing the last date that it had tested and calibrated the scale. The other was from the DOA, showing that the scale was certified.\nAndrews testified on cross-examination as follows. He was not aware of any written policy for \u201chow to perform a test at the scale house.\u201d However, he \u201cbelieve[d]\u201d that the operator\u2019s manual, which was kept at the scale house, set out a procedure. Asked whether the scale needed to be recertified and recalibrated \u201cevery time that [it was] worked on,\u201d Andrews responded, \u201cIt would depend on the work, I think, that\u2019s done to the scale.\u201d Asked whether \u201cHandbook 44\u201d states that a scale must be recertified after every use and every time maintenance has been done, Andrews said that he was \u201cnot familiar with the Handbook 44 procedures.\u201d Shown plaintiffs exhibit No. 10, Andrews agreed that nobody had signed it or acknowledged receiving it.\nAndrews testified as follows on redirect examination. To his knowledge, the Illinois State Police had no written procedure for operating the Richmond scale; this was what he had tried to say on cross-examination. He did not adhere to Handbook 44. \u201cCalibration\u201d is done by the maintenance contractor, here Fairbanks, and means making needed adjustments. \u201cCertification\u201d is performed by the DOA and means that it has approved the scale for operation. On August 22, 2008, a new digital display and a new printer were installed, but no repair work was needed or performed. On October 7, 2008, regular quarterly maintenance was performed, but, to Andrews\u2019 knowledge, no other work was done. Plaintiff\u2019s exhibit No. 14 showed the results of the test that Harris had done that day.\nAnna Kuzmiak, a Richmond police officer and a certified truck enforcement officer, testified as follows. On October 20, 2008, she was on patrol, driving north on Route 12, when she saw in front of her a pickup truck with a trailer. The maximum permissible weight for the truck and trailer combined was 6,000 pounds. (Defendant stipulated to this fact.) Kuzmiak stopped the vehicle, spoke to the driver, defendant, and then weighed the vehicle on the Richmond scale. She had been trained to operate the scale and had used it more than 30 times.\nKuzmiak explained that, before weighing a vehicle, the operator makes sure that the scale is \u201czeroed out.\u201d She did so before weighing defendant\u2019s vehicle. The scale\u2019s display had a sticker, also known as a \u201cdecal\u201d or \u201cdecalmania.\u201d The sticker meant that the DOA had certified the scale. The sticker was dated January 2008. According to Kuzmiak, a certification is good for 12 months. Kuzmiak saw no sign of tampering with the decal or of any outside interference that could have impeded the scale\u2019s accuracy. Because she had zeroed out the scale and the DOA sticker was in place, Kuzmiak believed, both then and at trial, that the scale was functioning properly on October 20, 2008.\nKuzmiak recounted that she weighed the front and back of the truck, then the trailer. After each weighing, she wrote down the result on her notepad. Kuzmiak could not get a printout, because the scale house was locked. In her truck enforcement class, she had been taught that a printout is not needed. The result for the first axle was 3,300 pounds; for the second axle, 4,120 pounds; and for the trailer, 9,580 pounds. Thus, the gross weight was 17,000 pounds.\nPlaintiff rested. Defendant testified about the stop and the weighing. He stated that Kuzmiak issued him a citation but no other documents, such as a printout from the scale.\nAfter hearing arguments, the trial judge stated as follows. The \u201creal issue\u201d was whether plaintiff proved the weight of defendant\u2019s vehicle on October 20, 2008. The judge continued:\n\u201cThe entire procedure that Richmond uses is appalling to this Court. It\u2019s been appalling to this Court for years. The fact that we have got a scale house that is locked, that they have no access to it in any way, shape, or form. They can\u2019t even get a ticket printout because they\u2019re not entitled to access to the building.\nAnd *** I certainly believe what the officer sees is evidence. *** The fact [that] there was no ticket though does lend greatly as to [sic] the credibility of the evidence presented.\nI think the most crucial witness [is] *** Andrews. He is trained with the Illinois State Police. He has been there for eight and a half years. He was the struck [sic] weight inspector, and he went through a whole litany of procedures in which [sic] they use, and during his testimony he made it very clear *** that indeed this scale was certified. It was certified on January 8th of 2008.\nHowever, the certification was never signed. Just because there is a sticker on the side of the scale doesn\u2019t mean that it\u2019s accurate. The certification for whatever reason was never signed by the proper authority. There was\u2014\nOn cross [-] examination, there was [sic] questions asked of this witness about Illinois State procedures and whether they met \u2014 and whether they met the requirements of Handbook 44, whether they adhered to those, and he testified no, he doesn\u2019t. No, the State Police did not.\nDoes [sic] the Illinois State Police have a procedure in [sic] how to operate the scale in Richmond? Not that I\u2019m aware of. That was the question. That was the answer. It puts in great question, I guess, the validity of the scale.\nThe biggest issue with this scale to me \u2014 Even if I accepted [that] it was a properly and accurately working scale, the biggest question as to its certification to me has to do with the amount of repairs that were done to the scale.\nI recall the testimony. *** There was a new display installed on August 22nd of 2008. It was not recertified and not recalibrated. There was no evidence presented at any time that it was recalibrated or recertified.\nOn 10-7 of \u201908, there was a [sic] quarterly maintenance done. That was the only evidence I received.\u201d\nThe judge continued that \u201conce anybody tampers with the machine, it has to be recertified or recalibrated, or *** it goes to the validity of the machine. It goes to the weight in which [sic] Court [sic] is willing to give that evidence.\u201d Later, he added:\n\u201cI have no ticket, no printout, no nothing, to verify [that] on this particular day this was the specific weight of the vehicle. That is an element which the Village must prove.\nJust because there is a sticker on the side of the scale doesn\u2019t mean it\u2019s accurate. The evidence presented I think clearly reflects that this scale was not an accurate or calibrated scale.\u201d\nThe judge held that plaintiff had not met its burden of proof. After the trial court entered judgment for defendant, plaintiff timely appealed.\nDefendant has not filed a brief. However, we may reach the merits even without an appellee\u2019s brief. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).\nPlaintiff contends that the judgment is against the manifest weight of the evidence. Plaintiff also contends that the judgment is based in part on mistakes of law. To the extent that this appeal involves issues of law, our review is de novo. See Village of Plainfield v. American Cedar Designs, Inc., 316 Ill. App. 3d 130, 135 (2000). However, in deciding whether plaintiff ultimately proved its case by a preponderance of the evidence (see Village of Kildeer v. LaRocco, 237 Ill. App. 3d 208, 211 (1992)), we may reverse the judgment only if it is against the manifest weight of the evidence (see Village of Plainfield, 316 Ill. App. 3d at 135).\nWe first note an apparent error of law that might have improperly influenced the judgment. The trial judge expressed concern that Andrews admitted that he did not follow Handbook 44, formally known as the National Institute of Standards and Technology Handbook 44. However, by statute, \u201cLaw enforcement is exempt from the requirements of commercial weighing established in NIST handbook 44.\u201d 625 ILCS 5/15\u2014112(a) (West 2008). Thus, the judge\u2019s concern was misplaced, and the testimony about Handbook 44 cannot support the judgment.\nWe turn to the trial court\u2019s factual findings, focusing on the trial judge\u2019s explanation, which we quoted in detail. We agree with plaintiff that the first paragraph is of no moment: whether the procedures used at the Richmond scale house over the years are offensive to the judge (or to anyone else) has no bearing on whether defendant violated plaintiffs ordinance.\nWhat matters is the evidence and the inferences to be drawn from it. The trial judge conceded that Kuzmiak weighed defendant\u2019s vehicle and recorded the result and that, according to what she wrote down, the vehicle weighed 17,000 pounds. This was 11,000 pounds over the 6,000-pound maximum. Yet, although the judge conceded that \u201cwhat the officer sees is evidence,\u201d he did not find that evidence persuasive. Apparently, there were two reasons: (1) the lack of written corroboration; and (2) the judge\u2019s doubt that the scale had been functioning properly. Neither misgiving was valid.\nThe judge\u2019s comment, \u201cThe fact that there was no ticket *** does lend greatly as to [sic] the credibility of the evidence presented,\u201d was not well founded. Kuzmiak testified that she weighed the vehicle, that its gross weight was 17,000 pounds, and that she promptly wrote down the figures that produced this result. This testimony was not contradicted, inherently improbable, or impeached; the judge thus was not free to refuse to credit it. See Anderson v. Zamir, 402 Ill. App. 3d 362, 367 (2010). On this record, the lack of a printout did not render Kuzmiak\u2019s testimony inherently improbable. Kuzmiak testified that she was taught in her enforcement class that a printout was not needed. Moreover, as the judge noted, the interior of the scale house was inaccessible to Kuzmiak, so her failure to issue a printout hardly casts doubt on her credibility.\nWe conclude that the judgment cannot be upheld by any inference that the scale did not say that defendant\u2019s vehicle had a gross weight of 17,000 pounds. We therefore turn to the other perceived deficiency: that plaintiff had not proved that the scale was reliable. We hold that the trial court\u2019s finding on this matter is against the manifest weight of the evidence.\nPlaintiff produced uncontradicted and unimpeached evidence that, on October 20, 2008, the scale had a DOA sticker that was dated January 2008 and was valid for a year. Kuzmiak testified that she saw no sign that the decal had been tampered with or that any interference had impeded the accuracy of the scale; that she \u201czeroed out\u201d the scale after starting and finishing the weighing; and that, in her opinion, on October 20, 2008, the scale had been working properly.\nUnder long-standing case law, the presence of the DOA sticker, combined with Kuzmiak\u2019s testimony, established a prima facie case that defendant\u2019s vehicle was overweight. In LaRocco, the enforcement officer testified that he weighed the defendant\u2019s truck in accordance with established procedures, that the scale \u201czeroed out\u201d and was working accurately, and that the scale had the required DOA sticker. We held that this testimony established a prima facie case of a weight violation. LaRocco, 237 Ill. App. 3d at 213. In People v. Fair, 61 Ill. App. 2d 360 (1965), the enforcement officer testified that the scale had a current DOA certification decal and that he zeroed out the scale before weighing each axle of the defendant\u2019s truck. The appellate court held that this evidence made a prima facie case that the scale had been accurate. Fair, 61 Ill. App. 2d at 365-66.\nHere, as in LaRocco and Fair, the enforcement officer\u2019s testimony established a prima facie case that the scale was accurate. Therefore, the trial judge\u2019s second reason for denying plaintiff relief is invalid, unless something allowed a finding that the prima facie case had been rebutted. The trial judge\u2019s comments suggest several possibilities, but none is supported by the evidence.\nFirst, the judge commented that the Illinois State Police did not \u201chave a procedure\u201d for operating the scale and that this fact \u201cput[ ] in great question *** the validity of the scale.\u201d However, as plaintiff argues, this comment is based on Andrews\u2019 statement that, to his knowledge, the State Police had no written procedure for operating the scale. In any event, Kuzmiak, a Richmond police officer, testified that she had been trained to operate the scale, had done so many times, and had followed a procedure similar to that approved in LaRocco and Fair. We cannot see how this evidence casts doubt on the accuracy of the scale.\nSecond, the judge noted that, although there was evidence that the DOA had certified the scale in January 2008, this evidence was negated by the fact that plaintiffs exhibit No. 10, the DOA report of January 8, 2008, was unsigned. However, the report was not the primary evidence that the scale had been certified; more important was the certification decal. There was testimony that the decal was affixed to the scale, and showed no signs of tampering and that the scale had been officially certified. The trial judge accepted this testimony. We cannot conceive of how the decal had become affixed to the scale unless the DOA had tested the scale and found it to be in good order. The comment, \u201cJust because there is a sticker on the side of the scale doesn\u2019t mean it\u2019s accurate,\u201d is not helpful. The presence of the sticker showed that the DOA had found that, as of January 8, 2008, the scale was accurate. At the very least, this was part of the evidence upon which plaintiff based its prima facie case. That the report was unsigned is odd, but unimportant in view of the decisive evidence that the DOA had certified the scale on January 8, 2008. Moreover, plaintiffs exhibit No. 11 was a signed DOA report from January 9, 2009, which was after the incident, indicating that the scale was still certified and that a decal was affixed.\nThe third possible reason for finding that plaintiffs prima facie case had been rebutted was the work performed on August 22, 2008. The trial judge explained that there was no evidence that, after the display and printer were installed, the scale was \u201crecertified or recalibrated that day.\u201d This observation is partly inaccurate and partly beside the point. As plaintiff points out, plaintiff\u2019s exhibit No. 15 states that Fairbanks\u2019 employee, Harris, performed \u201cincreasing load & shift tests\u201d that all resulted in \u201c0\u201d error. Also, after the line, \u201cDescribe any adjustments made,\u201d Harris wrote, \u201cInstalled new\u2022 indicator. Programmed & calibrated.\u201d (Emphasis added.) The report directly refutes the judge\u2019s statement that the scale was not calibrated. (Also, the scale was not actually repaired; there is no evidence that anything had been wrong with the parts that were not replaced.) The scale was not recertified immediately after the installation work, but there was no evidence that recertification was needed; Kuzmiak testified that DOA certification was good for a year and that, when she weighed defendant\u2019s vehicle, she was satisfied that the scale was working properly.\nThe fourth possible danger to plaintiffs prima facie case was the work done on October 7, 2008. However, the evidence shows that this danger was illusory. According to plaintiff\u2019s exhibit No. 13, Harris performed \u201cmaintenance, inspection and testing\u201d of the scale. (Emphasis added.) In plaintiffs exhibit No. 14, Harris recorded the results of a \u201cShift Test\u201d and a \u201cLoad Test \u2014 Known Weights.\u201d In each box marked \u201cerror,\u201d he wrote \u201c0.\u201d Thus, the report showed that, on October 7, 2008, the scale was inspected and tested for accuracy and found wholly satisfactory. Andrews testified that the October 7, 2008, work was routine maintenance only and that the scale did not need to be recalibrated every time that work was done on it. Thus, any inference that the October 7, 2008, work put the accuracy of the scale into doubt is against the manifest weight of the evidence.\nIn sum, nothing refuted plaintiffs prima facie case that the scale was accurate and reliable when Kuzmiak weighed defendant\u2019s vehicle and found that it exceeded its legal limit by 11,000 pounds. To the extent that the evidence beyond what was needed to establish the prima facie case proved anything, it affirmatively showed that the scale was accurate. Moreover, as plaintiff observes, there is much support in the case authority for disregarding any possible inaccuracies, even had there been better evidence of them. In Fair, the appellate court noted that the defendant\u2019s truck weighed 18,980 pounds more than the 72,000-pound limit, leaving a 26% margin of error. The court held that this fact vitiated the defendant\u2019s challenge to the scale\u2019s accuracy. Fair, 61 Ill. App. 2d at 366. In People v. Hansen, 74 Ill. App. 2d 49 (1966), the defendant\u2019s truck weighed approximately 30% more than the maximum. The court stated that this large margin made the defendant\u2019s challenges to the scale\u2019s accuracy \u201cseem hypercritical and frivolous.\u201d Hansen, 74 Ill. App. 2d at 52. In People v. Jackson, 98 Ill. App. 3d 418, 422 (1981), the appellate court applied Hansen\u2019s disparaging comment to the defendants\u2019 challenge to a scale that showed that their trucks were, respectively, approximately 27\u00bd% and 34% overweight. Here, defendant\u2019s truck exceeded the 6,000-pound limit by 11,000 pounds, or 183%. The margins of error in Fair, Hansen, and Jackson were sufficient to neutralize any objections to the accuracy of the scales in those cases. A fortiori, the margin here means that nebulous defects in the weighing process could not mean denying plaintiff any recovery. The judgment is thus against the manifest weight of the evidence (and the manifest evidence of the weight).\nPlaintiff asks us to reverse the judgment, find that defendant violated plaintiffs ordinance, and remand the cause for a hearing on the proper penalty. We grant that request. Plaintiff also requests us to order that, on remand, the cause be assigned to a different judge. We deny that request. Although we may order a cause assigned to a new judge on remand, the party seeking the reassignment must overcome the presumption of judicial impartiality. Eyehaner v. Gross, 202 Ill. 2d 228, 280 (2002). Plaintiff merely asserts that the trial judge\u2019s \u201cprejudicial [sic] statements\u201d demonstrate the need for reassignment. We conclude that plaintiff has not shown that the judge cannot be impartial.\nFor the foregoing reasons, we reverse the judgment of the circuit court of McHenry County, find for plaintiff on liability (see Ill. S. Ct. R. 366(a)(5) (eff. Feb. 1, 1994)), and remand the cause for a hearing on the proper penalty and the imposition of the penalty.\nReversed and remanded.", "type": "majority", "author": "JUSTICE ZENOFF" } ], "attorneys": [ "Jennifer J. Gibson, of Zukowski, Rogers, Flood & McArdle, of Crystal Lake, for appellant.", "No brief filed for appellee." ], "corrections": "", "head_matter": "THE VILLAGE OF RICHMOND, Plaintiff-Appellant, v. GARY E. MAGEE, Defendant-Appellee.\nSecond District\nNo. 2\u201410\u20140169\nOpinion filed January 28, 2011.\nJennifer J. Gibson, of Zukowski, Rogers, Flood & McArdle, of Crystal Lake, for appellant.\nNo brief filed for appellee." }, "file_name": "0560-01", "first_page_order": 576, "last_page_order": 585 }