author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES J. GRANEY, Defendant-Appellee.
    Second District
    No. 2—91—0128
    Opinion filed September 10, 1992.
    Rehearing denied October 13, 1992.

      James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Joseph M. Laraia, of Joseph M. Laraia & Associates, P.C., of Wheaton, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

The State appeals the order of the circuit court which granted the petition of defendant, James Graney, to rescind the summary suspension of his driver’s license. The State contends the trial court erred in finding that the State failed to provide a sufficient foundation for admission into evidence of certain exhibits necessary to prove compliance with the Department of Public Health (Department) standards regarding breathalyzer machines.

On November 30, 1990, a Wheaton police officer stopped defendant’s vehicle because of an expired registration. Defendant was driving home from an office Christmas party, and his wife was a passenger in defendant’s vehicle. According to the sworn report, defendant submitted to a breathalyzer test, which resulted in a blood-alcohol concentration (BAG) of .11%. The report also stated that the arresting officer believed defendant was under the influence of alcohol because defendant had a “strong odor of an alcoholic beverage upon [his] breath, [his] eyes were glassy and bloodshot, [he had] slurred speech, [was] staggering while walking, [and] swaying while standing.” Defendant’s license was therefore summarily suspended (see Ill. Rev. Stat. 1991, ch. 95½, pars. 11 — 501.1(d), (e)), and he was charged with driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 95½, pars. 11-501(a)(l), (a)(2)).

Defendant petitioned to rescind the summary suspension on the grounds that he was not arrested lawfully, the arresting officer did not have reasonable grounds to believe that he was driving under the influence of alcohol, and the results of the breathalyzer test did not indicate a BAG of .10% or more. See Ill. Rev. Stat. 1991, ch. 95½, pars. 2-118.1(b)(l), (b)(2), (b)(4).

In addition to defendant’s own testimony and that of his wife regarding the Christmas party and the drive home, defendant called two of his colleagues to testify about his condition at the party. Defendant’s evidence showed that defendant arrived at the party at 7:30 p.m. He drank one beer before dinner and one during dinner. After dinner, defendant had three beers, but he never finished any of those three. Defendant estimated that he actually drank the equivalent of lx/2 beers after dinner. Defendant and his wife left the party around 10:30 p.m., and neither of them was intoxicated.

Defendant and his wife left Chicago in their 1991 Jeep Wrangler. They had traded in defendant’s wife’s Nissan Pulsar for the Jeep in September 1990 and transferred its license plates to the Jeep. However, they had trouble getting the registration for the license plates changed, so that the plates on the Jeep were expired as of September 1990.

On the way home, defendant’s wife was hungry, so defendant drove to the Taco Bell on Butterfield Road in Wheaton. They ordered food through the drive-up window and pulled out onto westbound Butterfield Road. At the comer of Naperville Road and Butterfield Road, defendant stopped at the stoplight. After the light turned green, he proceeded through the intersection. Just then a police car activated its lights, and defendant pulled over.

The police officer asked to see defendant’s driver’s license, and defendant gave the officer a traffic citation in lieu of his license. The officer then instructed defendant to get out of the vehicle. Defendant had no problem getting out of the Jeep, and he did not stagger as he walked to the front of the police car. Defendant asked the officers what was the problem, and one of them asked defendant if he drove through the field by the gas station on Butterfield Road. Defendant denied that he had done so. The officer responded, “ ‘Your girlfriend told me you did.’ ” Defendant informed the officer that the woman in the Jeep was his wife and that he did not believe the officer had spoken with her. The officer then administered the horizontal gaze nystagmus test to defendant.

Next, the officer asked defendant to perform the heel-to-toe test on the fog line. Defendant did not lose his balance, stayed on the fog line, and walked every step, except one, heel to toe. After defendant completed the heel-to-toe test, the officers had him perform the one-legged stand test. Defendant requested to do it on the north side of the Jeep because it was windy. The officers refused his request and instructed defendant to perform the test behind the Jeep. Defendant stood on his right foot and put his left foot out in front of him. Defendant put his foot down several times because his right leg was one-quarter of an inch shorter than his left, which rendered it weaker and caused him problems with his lower back. Defendant successfully completed the finger-to-nose test. The officers arrested defendant for DUI.

At the Du Page County jail, while defendant was waiting to take the breathalyzer test, he demonstrated to the officers that he could not perform the one-legged stand test on his right foot, and he told them he could not do it because he had “a bad foot.”

At the close of defendant’s case, the State moved for a directed finding. The court denied the motion, finding that the evidence tended to show that defendant “was not impaired from alcohol.”

The State’s evidence showed that at approximately 11:25 p.m. an employee of the gas station reported that “a blue Nissan tractor-type of vehicle *** had just driven up over the grass.” The employee informed the police that the license plate number of the vehicle was APN 629 and that the vehicle was headed westbound on Butterfield Road. Officer Westberg responded to the dispatch and headed to the intersection of Butterfield and Naperville roads. According to Officer Westberg, he observed “[t]he blue Nissan[, with the] APN plate” on “the vehicle[,] stopped at the stop-and-go light of westbound Butter-field at Naperville.” Officer Westberg noticed that the license plate was expired. Officer Westberg pulled over the vehicle. Upon approaching the driver’s window, Officer Westberg observed that defendant’s' eyes were glassy and bloodshot and there was a strong odor of alcohol on defendant’s breath. According to Officer Westberg, defendant staggered when he walked.

Officer Westberg further testified that he instructed defendant to take nine steps for the heel-to-toe test, but defendant took 11 steps, and only counted to 9, skipping the number 6. Officer Westberg asked defendant if he had any problems with his legs, to which defendant responded that he did not. After the finger-to-nose test, Officer West-berg arrested defendant because, in Officer Westberg’s opinion, defendant was intoxicated. According to Officer Westberg, when defendant repeated the one-legged stand test while awaiting the breathalyzer test, defendant stated “ T couldn’t do this test if I was sober.’ ”

After Officer Westberg’s testimony, the State again moved for a directed finding. The court denied the motion and determined that the State was required to go forward with evidence of the reliability of the breathalyzer results.

A Wheaton police officer administered the breathalyzer test to defendant at the Du Page County sheriff’s office. During the testimony of the breathalyzer operator, defendant objected to the operator reading from the decal (which certified that the machine was tested) on the ground that the State failed to lay a proper foundation for the testimony. The court sustained the objection because the State had not admitted the decal into evidence. When the State moved to admit the decal, the logbook and the printout into evidence, defendant objected that the State failed to lay a proper foundation for the exhibits.

The court found that the evidence could be admitted as a business record if there was a sufficient foundation for the evidence. However, the court found that the State failed to lay the foundation for admission of the evidence because the State failed to show “the authority by which the logbook is kept, the basis upon which [the operator] concluded the information was accurate that was contained within the entries, and that the entries were made contemporaneously with the events that are actually being recorded and the basis upon which this individual acts, how he knows these things, why he should be considered as a records custodian, [and] who makes these entries.” The court therefore sustained defendant’s objection.

Following more testimony by the operator, the court modified its decision. Over defendant’s objection, the court admitted the decal, the logbook, and the printout into evidence subject to cross-examination.

On cross-examination, the operator, who had been certified for one year, admitted that, when he administered the breathalyzer to defendant, the operator did not look through the manufacturer’s operating instructions and the operator could not list the steps from memory, but would have to refer to the manual. In addition, the operator stated that the logbook was under the supervision and control of the Du Page County sheriff’s office and was not under the operator’s supervision and control. The operator also did not know who was the keeper of the record.

Defendant moved to strike the exhibits. The court found that the State failed to present a sufficient foundation for the decal because it did not show what was done, it only reflected that someone signed it, and the breathalyzer operator did not have personal knowledge of what was shown on the decal. The court further found that there was not an adequate foundation to admit the logbook as a business record because the operator did not know the general procedure or practice for the recording and storage of information contained in the logbook. In addition, the court noted that the operator could not testify as to who had access to the logbook and the exact conditions under which the entries were made. Finally, the court found that because the operator did not consult with the machine’s operating manual and was not familiar with the order of the steps to administer the test, the State failed to prove that defendant’s breath test was performed according to the procedure approved by the Department. The court therefore struck the decal, the logbook, and the printout.

After this ruling, the State rested. The court heard arguments from counsel and then stated the reasons for its ruling on the petition. The court found that the evidence was divided equally, so that its decision rested on the credibility of the witnesses. The court first determined that the officer had probable cause to stop defendant’s vehicle based on the report of a vehicle driving over the field by the gas station. The court found the witnesses equally credible regarding defendant’s impairment. However, because defendant did not inform the officer of his handicap prior to the one-legged stand test, the court concluded that the officer had reason to suspect that defendant was impaired by alcohol. Consequently, the court ruled against defendant on the probable cause issue.

The trial court ordered that the suspension of defendant’s license be rescinded because the evidence did not show a BAG of .10% or more because the State failed to show that the breath test was accurate and was administered in compliance with the standards of the Department. The State timely appealed.

The State contends that the trial court erred in granting the petition to rescind by finding that the State failed to provide a sufficient foundation for the admission into evidence of the decal certifying the breathalyzer machine, the logbook, and the printout listing the result of defendant’s breath test.

The summary suspension rescission hearing is a civil proceeding (Ill. Rev. Stat. 1991, ch. 95½, par. 2 — 118.1(b); People v. Moore (1990), 138 Ill. 2d 162, 167) in which the defendant bears the burden of proof (People v. Orth (1988), 124 Ill. 2d 326, 337-38). When the results of a breathalyzer test are challenged, the defendant must make out a prima facie case that the test results are not reliable; then the burden shifts to the State to rebut the prima facie case. (People v. Bulman (1991), 212 Ill. App. 3d 795, 801.) The trial court’s findings in a rescission proceeding will not be disturbed on appeal unless they are manifestly erroneous. Orth, 124 Ill. 2d at 341.

The State maintains that it did not have the burden of proving the reliability and admissibility of the test results. The State relies on People v. Davis (1989), 180 Ill. App. 3d 749, and People v. Gryczkowski (1989), 183 Ill. App. 3d 1064. In Gryczkowski, the reviewing court affirmed the trial court’s refusal to rescind the summary suspension of the defendant’s driver’s license on the basis that the State failed to prove the accuracy of the breathalyzer results after the defendant testified that he was not under the influence of alcohol. (Gryczkowski, 183 Ill. App. 3d at 1071.) The State argues that under Gryczkowski, for a defendant to make out a prima facie case, the defendant has to present evidence of the machine’s malfunction or the operator’s failure to follow procedures. Defendant responds that the State misconstrues the holding of Gryczkowski which, according to defendant, was not that the only way to present evidence that the breathalyzer result is inaccurate is by showing that the machine malfunctioned, lacked certification, or that the operator failed to follow the procedures.

We agree with defendant’s interpretation of Gryczkowski. The court in Gryczkowski stated:

“At the summary suspension hearing, defendant failed to introduce any evidence whatsoever that he was improperly tested. He also failed to introduce any evidence that the machine in question malfunctioned, or that the results obtained were inaccurate. Such evidence is indispensable for defendant to meet his burden in establishing a prima facie case for rescission.” (Emphasis added.) (Gryczkowski, 183 Ill. App. 3d at 1070-71, citing Davis, 180 Ill. App. 3d at 752.)

(Orth, 124 Ill. 2d at 336-38.) A defendant may show that the results of a breathalyzer test were inaccurate or unreliable by presenting “credible testimony *** that he was not in fact under the influence of alcohol.” Orth, 124 Ill. 2d at 341.

Gryczkowski is factually distinguishable because there the trial court did not make a credibility finding in favor of the defendant. The arresting officer testified that the defendant failed various field-sobriety tests (Gryczkowski, 183 Ill. App. 3d at 1066), while the defendant claimed to have performed the tests satisfactorily (183 Ill. App. 3d at 1067). The trial court ruled that the defendant had failed to sustain his burden of proof and denied the petition to rescind (183 Ill. App. 3d at 1068). On appeal, this court discussed the lack of evidence that the breathalyzer machine malfunctioned or the results were inaccurate in response to defendant’s arguments. (183 Ill. App. 3d at 1070-71.) Because there was no credibility determination in the defendant’s favor for him to rely on, his focus on appeal was whether the breathalyzer machine functioned properly. This was the only reasonable avenue the defendant could follow as a reviewing court will not disturb the trial court’s credibility findings unless they are against the manifest weight of the evidence. See Kalata v. Anheuser-Busch Cos. (1991), 144 Ill. 2d 425, 433.

Orth teaches that a defendant may establish a prima facie case by testifying that he was not under the influence of alcohol and, thus, shift the burden to the State, provided, that the trial court believes the defendant’s testimony. Then the defendant need not present any evidence of his particular test until the State has come forward with evidence to show compliance with the Department’s regulations. However, a defendant may, if he desires, present evidence that the breathalyzer test was improperly administered or the machine was malfunctioning as alternative or additional proofs in order to establish his prima facie case.

In its reply brief, the State argues for the first time on appeal that the trial court erred in finding that defendant established a prima facie case for rescission. This argument fails for two reasons. First, it is waived because the State did not raise this issue in its appellant’s brief — a violation of Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)). Second, even if the State had raised this argument properly, the trial court found credible the testimony of defendant and his witnesses that defendant was not impaired by alcohol. When the trial court’s factual findings were based on the credibility of the witnesses, we may not substitute our judgment for that of the trial court. (Kalata, 144 Ill. 2d at 433-34.) There was some credible evidence which overcame the evidentiary hurdle to cast doubt on the accuracy of the test; thus, the trial court properly found that defendant had established a prima facie case.

Since the trial court found that defendant established a prima facie case for rescission, the burden shifted to the State to come forward with evidence of the reliability of the breath test result. The court prevented the State from introducing into evidence the necessary documents because it determined that the State failed to provide a sufficient foundation for their admissibility.

The State argues that People v. Caruso (1990), 201 Ill. App. 3d 930, is dispositive of this appeal. In Caruso, this court held that the State does not need to prove compliance with every regulation regarding breath-alcohol tests. (Caruso, 201 Ill. App. 3d at 938-39.) The State asserts that under Caruso the court’s ruling here was erroneous. However, the State’s reliance on Caruso is misplaced. The prosecution in Caruso was able to prove compliance because the logbook and the decal were admitted into evidence. (201 Ill. App. 3d at 940-42.) Here, the admissibility of the logbook and the decal, as well as the test result itself, is the issue. The State here was unable to prove compliance with any of the regulations because it was unable to lay a proper foundation for admission of the exhibits into evidence.

The State has “the initial and ultimate burden of establishing a proper foundation for admission of the breath test results.” (People v. Boshears (1992), 228 Ill. App. 3d 677, 685.) In a rescission hearing, the results of a breathalyzer test will not be admitted into evidence if the State fails to prove compliance with the Department’s standards once the burden has shifted to the State. (People v. Miller (1991), 219 Ill. App. 3d 246, 248-49; People v. Zator (1991), 209 Ill. App. 3d 322, 327.) If the trial court finds that the State failed to prove compliance with the Department’s regulations, the test results are presumed to be invalid and inadmissible. People v. Hamilton (1987), 118 Ill. 2d 153, 160; Miller, 219 Ill. App. 3d at 251.

The rules of criminal procedure do not apply to a rescission hearing. (Moore, 138 Ill. 2d at 169.) Rather, the proceeding is governed by the rules of civil procedure. (People v. Teller (1991), 207 Ill. App. 3d 346, 350.) Thus, the Department’s standards are not the only requirements for the admissibility of breath tests into evidence: the ordinary rules for the admissibility of evidence also apply. (See People v. Keith (1992), 148 Ill. 2d 32, 42.) “Basic rules of evidence require that a party must lay the foundations for the introduction of a document into evidence.” (Gardner v. Navistar International Transportation Corp. (1991), 213 Ill. App. 3d 242, 247.) “Preliminary questions of fact concerning the admissibility or competency of evidence are generally matters decided by the trial court.” Hengels v. Gilski (1984), 127 Ill. App. 3d 894, 914.

When a document is offered to prove the truth of. the matters asserted therein, it is hearsay, even if the document is a public record. (Williamson v. City of Springfield (1984), 125 Ill. App. 3d 361, 366.) The trial court found that the documents at issue did not qualify as public records because they involved the exercise of judgment and concerned causes and effects. However, even if the court erred in finding that the documents did not qualify as public records, that finding is immaterial because the reason the court refused to admit the exhibits was that the State did not provide an adequate foundation for them. If a document is admissible pursuant to an exception to the hearsay rule, the proponent must still lay an adequate foundation for its admission into evidence. (Riley v. Jones Brothers Construction Co. (1990), 198 Ill. App. 3d 822, 829.) “If the source of information or the method or circumstances of preparation [of the public record] indicate lack of trustworthiness, the court may bar admissibility” of the document. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §803.12, at 663 (5th ed. 1990).

The trial court believed that the documents could be admitted under the business records exception to the hearsay rule (134 Ill. 2d R. 236(a)). To be admissible pursuant to this exception, the document must have been made in the regular course of business, concurrently with the transaction or within a reasonable time of it. (134 Ill. 2d R. 236(a).) The trial court found that the State failed to show that the decal was admissible pursuant to the business records exception to the hearsay rule because the witness/operator lacked personal knowledge of the recording of the information; the foundation for the logbook was insufficient because the witness/operator was not the custodian of it, he did not know who had access to the logbook or whether the entries in the logbook were made contemporaneously with the tests. Finally, the foundation for the printout was insufficient because the witness/operator did not comply with the Department’s procedures when he administered the test to defendant.

We need not determine whether the decal, the logbook, and the printout were public records or business records because, in either event, the trial court found the State failed to present a sufficient foundation for them. Curiously, the State has not argued that it provided a sufficient foundation for the admission of the disputed documents into evidence. We will not disturb evidentiary rulings absent an abuse of the trial court’s discretion. (Jackson v. Pellerano (1991), 210 Ill. App. 3d 464, 471.) A trial court abuses its discretion only when its decision is “such that no reasonable person could take the view adopted by the trial court.” (Mizell v. Passo (1992), 147 Ill. 2d 420, 425-26.) The trial court listed the deficiencies in the State’s proof, and we find those factors were a reasonable basis to deny admission of the evidence.

Moreover, even if the decal were admissible, we agree with the trial court that the State failed to present evidence that the witness/ operator complied with the Department’s regulations, a prerequisite for the admission of the logbook and the printout (see Ill. Rev. Stat. 1991, ch. 95^2, par. 11 — 501.2(a)(l)). The witness/operator testified that he did not look at the manufacturer’s manual when he administered the test to defendant, yet the witness/operator did not know the sequence of the steps for the operation of the machine. Without evidence that the witness/operator administered the test properly, “the State cannot lay the proper foundation for the admission of the breath test results.” (Keith, 148 Ill. 2d at 43.) The purpose of requiring compliance with the Department’s standards is “that these machines are not foolproof, and require not only the correct use to obtain an accurate result, but also a knowledgeable operator to observe the test.” (Keith, 148 Ill. 2d at 44.) If the witness/operator here did not know the sequence of the steps to administer the test and did not look at the operations manual when he administered the test to defendant, the results of the test are questionable. We conclude that the trial court properly refused to admit the logbook and the printout of the test results into evidence, and therefore we affirm the rescission based on the inaccuracy of those results.

The order of the circuit court of Du Page County is affirmed.

Affirmed.

INGLIS, P.J., and DUNN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    MARTIN MASKE, Plaintiff-Appellant, v. KANE COUNTY OFFICERS ELECTORAL BOARD et al., Defendants-Appellees.
    Second District
    No. 2—92—1008
    Opinion filed September 18, 1992.

      Frederick J. Steffen and Kerin E. Kelly, both of Steffen & Carroll, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva, and Paul A. Lewis, of Alschuler, Putnam, McWethy, Funkey & Lewis, P.C., of Aurora (J. Patrick Jaeger, Assistant State’s Attorney, of counsel), for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Martin Maske, appeals the decision of the circuit court of Kane County which affirmed the decision of defendant Kane County Officers Electoral Board (Electoral Board), denying Maske’s petition for nomination and certification of candidacy, thereby precluding the placement of his name on the November 3, 1992, general election ballot. For the following reasons, we affirm.

In the general primary election held on March 17, 1992, no Democratic candidate was printed on the ballot for the office of Kane County auditor; nor was any person nominated as a write-in candidate. A caucus of Democratic precinct committeemen elected Maske as the Democratic candidate for the position of Kane County auditor. On May 18, 1992, Maske filed his certificate of nomination, his statement of candidacy, and his statement of economic interests. On May 26, 1992, defendant Robert Palmer filed an objection to Maske’s nomination. After hearings on May 29 and June 1, 1992, the Electoral Board struck Maske’s name from the general election ballot.

Thereafter, the Democratic party again elected Maske as its candidate for the position of Kane County auditor, and Maske filed a second nominating petition. On July 14, 1992, Palmer filed an objection to Maske’s nomination. The Electoral Board convened on July 21, 1992, for a hearing. On August 3, 1992, it rejected Maske’s nomination. Maske sought judicial review of the Electoral Board’s decision in the circuit court of Kane County, which upheld the rulings of the Board. Maske appealed the decision of the circuit court and moved for expedited consideration, which was granted.

Maske first contends that the circuit court applied the wrong standard of review in affirming the Electoral Board’s decision to deny his nominating petition. In the circuit court, Maske raised issues concerning the interpretation of sections 7 — 61 and 10 — 10 of the Election Code (Ill. Rev. Stat. 1991, ch. 46, pars. 7 — 61, 10 — 10). The construction of a statute is a question of law. (Ortegel v. ITT Thorp Corp. (1991), 210 Ill. App. 3d 669, 672.) Accordingly, the reviewing court may make an independent determination and need not defer to the decision of the trial court. (Monahan v. Village of Hinsdale (1991), 210 Ill. App. 3d 985, 993.) However, because agencies make informed judgments based on their experience and expertise with similar issues, it is generally recognized that courts give substantial weight and deference to the interpretation of an ambiguous statute by the agency charged with the administration and enforcement of the statute. Monahan, 210 Ill. App. 3d at 994, citing Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n (1983), 95 Ill. 2d 142, 152-53.

In the circuit court, Maske raised the issue of whether Palmer had standing to object to his nomination. In its memorandum opinion, the circuit court wrote that “[t]he Board found Mr. Palmer to be a qualified registered voter of Kane County and accordingly this court finds by the manifest weight of the evidence that the Board’s ruling in this regard was correct.” On appeal, Maske contends that this language indicates that the court applied the wrong standard of review in its entire ruling.

Our review of the circuit court’s memorandum opinion fails to indicate that the wrong standard of review was applied to the issues Maske raises in this appeal. The trial court did utilize the manifest weight language Maske quotes. However, it did so in rendering its ruling on Palmer’s standing to challenge Maske’s nomination, an issue not raised in this appeal. Nevertheless, assuming arguendo the wrong standard was applied, such error was harmless. As we previously stated, a reviewing court may consider the construction of a statute, a question of law, independent of the trial court’s judgment, giving deference to the interpretation given by the agency charged with the administration of the statute. Since we will review the trial court’s decision de novo, an error which may have occurred by applying the incorrect standard of review will have no impact on our decision in this appeal.

Next, Maske contends that the trial court erred in affirming the Electoral Board’s decision to deny his nominating petition on the basis that it was not timely filed. Maske actually filed two nominating petitions which were both denied by the Electoral Board. After the Board denied Maske’s first petition, the Democratic party again elected him as its candidate for the position of Kane County auditor, and Maske filed a second nominating petition. After hearings on Palmer’s second objection, the Electoral Board rejected Maske’s second nomination as untimely. At this time, Maske sought judicial review of the Board’s decision in the circuit court of Kane County, which affirmed the decision of the Board.

Section 7 — 61 of the Election Code sets forth a comprehensive statutory scheme for filling vacancies in nomination. It contains the following language:

“If the name of no established political party candidate was printed on the consolidated primary ballot for a particular office and if no person was nominated as a write-in candidate for such office, a vacancy in nomination shall be created which may be filled in accordance with the requirements of this Section. If the name of no established political party candidate was printed on the general primary ballot for a particular office and if no person was nominated as a write-in candidate for such office, a vacancy in nomination shall be created, but no candidate of the party for the office shall be listed on the ballot at the general election unless such vacancy is filled in accordance with the requirements of this Section within 60 days after the date of the general primary.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 46, par. 7—61.)

The election held in the State of Illinois on March 17, 1992, is properly termed a general primary election as defined by section 2A— 1.1(a) of the Election Code. (Ill. Rev. Stat. 1991, ch. 46, par. 2A—1.1.) According to the terms of section 7 — 61 quoted above, Maske was required to fill the vacancy within 60 days after the March 17, 1992, general primary when a Democratic candidate neither ran for the office of Kane County auditor nor was one nominated as a write-in. Since the vacancy was not filled within this time frame, both the Electoral Board and the circuit court found Maske’s second nominating petition, filed on July 8, 1992, to be untimely.

Maske, however, cites the following language of the Election Code:

“A vacancy in nomination occurs when a candidate who has been nominated under the provisions of this Article 7 dies before the election *** or declines the nomination; provided that nominations may become vacant for other reasons.” (Ill. Rev. Stat. 1991, ch. 46, par. 7 — 61.)

He also cites the following time limits for filling vacancies:

“Any vacancy in nomination under the provisions of this Article 7 occurring on or after the primary and prior to certification of candidates by the certifying board or officer, must be filled prior to the date of certification.” (Ill. Rev. Stat. 1991, ch. 46, par. 7 — 61.)

Based on the foregoing, Maske contends that a vacancy for the office of Kane Comity auditor was created on July 2, 1992, when the Electoral Board sustained Palmer’s objection and denied his first nominating petition. Because the candidates for the office had not been certified at this time, Maske contends that the language of section 7 — 61 quoted above allows him to make a second attempt to fill such vacancy in a timely manner at any time prior to certification. We disagree.

In McCarthy v. Streit (1989), 182 Ill. App. 3d 1026, a slate of Republican candidates was denied a place on the ballot in a township election. The same candidates then formed a new political party, The Township Choice Party. The trial court found that the parties had participated in an established political party’s caucus and were statutorily precluded from third-party candidacy. At issue on appeal was whether the vacancies that occurred on the Republican slate when the first certificate of nomination was declared invalid could be filled by resolution with the same candidates who had been previously stricken. The court ruled that the vacancies created by the electoral board’s decision to deny the first slate of improperly nominated candidates could be legally filled by the same candidates. McCarthy, 182 Ill. App. 3d at 1033.

McCarthy, however, is factually distinguishable from the present case. In McCarthy, the candidates were found ineligible by the election board but were allowed to reorganize under a new party name and be declared eligible to fill the vacancy created by the board’s denial of their first nomination. However, in the' present case, Maske’s first nomination as the Democratic party candidate was denied. Contrary to the candidates in McCarthy, Maske did not reorganize under a new party name and file a second petition. Instead, he filed a second petition under the same party. Furthermore, McCarthy deals with a township election which did not involve a general primary election and did not construe the 60-day requirement of section 7 — 61.

To accept Maske’s argument that he was able to fill a “vacancy” created when the Board denied his first petition at any time prior to certification would render the 60-day requirement of section 7 — 61 a nullity. However, a statute should not be construed so that its specific language is rendered meaningless or superfluous. (People v. Singleton (1984), 103 Ill. 2d 339, 345.) The basic rule in ascertaining the meaning of a statute is to determine the intent of the legislature and effectuate such intent. (Village of South Elgin v. City of Elgin (1990), 203 Ill. App. 3d 364, 368.) This is accomplished by examining the terminology of the statute, its goals and purposes, the natural import of the words used in common and accepted usage, the setting in which they are employed, and the general structure of the statute as a whole. (Monahan, 210 Ill. App. 3d at 993.) Where the language of the statute is certain and unambiguous, the court’s only function is to enforce the law as enacted by the legislature, without resorting to supplemental principles of statutory construction. Henry v. St. John’s Hospital (1990), 138 Ill. 2d 533, 541; Village of South Elgin, 203 Ill. App. 3d at 368.

Contrary to Maske’s assertion, we find that a vacancy did not occur when the Electoral Board denied his second nominating petition as untimely. According to the express and unambiguous terms of section 7 — 61 of the Election Code, a vacancy occurred when no Democratic candidate ran for the office of Kane County auditor and no candidate was nominated as a write-in which required such vacancy to be filled within 60 days of the general primary election, in this case, within 60 days of March 17, 1992. Maske attempted to comply with this statute by filing his first nominating petition. His petition, however, was denied. Maske cannot attempt to circumvent the clear and unambiguous language and time limits set forth in section 7 — 61 by filing successive nominating petitions under the same party which had been previously denied. If Maske did not agree with the Board’s first decision denying his petition, the recourse Maske should have sought was judicial review of that order. For these reasons, we find that Maske’s second nominating petition was properly dismissed as untimely.

Last, Maske contends that the Electoral Board’s decision to deny his nominating petition is a nullity because it failed to meet within the time specified in the Election Code. Section 10 — 10 of the Election Code describes the procedures to be followed by the board of elections when an objection to a nominating petition is filed. (Ill. Rev. Stat. 1991, ch. 46, par. 10 — 10.) It states in pertinent portion as follows:

“The day of the meeting [hearing objections to nominating petitions] shall not be less than 3 nor more than 5 days after the receipt of the certificate of nomination or nomination papers and the objector’s petition by the chairman of the electoral board.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 46, par. 10-10.)

The Election Code specifies the computation of time limits as follows:

“The time within which any act provided by The Election Code is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday as defined or fixed in any statute now or hereafter in force in this State, and then it shall also be excluded.” Ill. Rev. Stat. 1991, ch. 46, par. 1 — 5.

It is undisputed that Palmer filed his objection to Maske’s petition on July 14, 1992, a Tuesday. The latest possible date the Electoral Board could meet within the framework of section 10 — 10 was five days after Palmer’s objection was filed. In this case, the latest date would have been Monday, July 20, 1992, because the fifth day was a Sunday and was excluded pursuant to section 1 — 5. It is further uncontroverted that the Electoral Board met to hear Palmer’s objection on Tuesday, July 21, 1992, more than five days after the receipt of Palmer’s objection. Maske contends that the Electoral Board lost jurisdiction to hear Palmer’s objection by failing to convene within the time specified by section 10 — 10, thereby nullifying its decision to strike his name from the general election ballot.

As an administrative agency created by statute, the Electoral Board may only exercise the powers conferred upon it by the legislature. (Kozel v. State Board of Elections (1988), 126 Ill. 2d 58, 68; Sullivan v. County Officers Electoral Board (1992), 225 Ill. App. 3d 691, 694.) However, it does not necessarily follow that failing to convene within the specified time limit divests the Board of jurisdiction to conduct a statutorily authorized activity. If this were true, the objection process set forth by the legislature would be thwarted. By ignoring the statutorily authorized procedure and ordering a hearing on an objection outside the time limits set by the legislature, the Board could prevent any hearing on the objection. This would lead to the absurd result that the nomination would be placed in limbo and the candidate could proceed no further.

In Craig v. Electoral Board (1991), 207 Ill. App. 3d 1042, the electoral board convened to hear an objector’s petition two days beyond the time limit set forth in section 10 — 10. Because the candidate did not contest that he had notice of the hearing and did not deny that subpoenas were issued and witnesses were available at the hearing, the court deemed the issue waived absent a showing of how the candidate incurred prejudice by the delay. It is fundamental that issues of jurisdiction can be raised at any time and cannot be waived by either party. (In re Marriage of Bussey (1984), 128 Ill. App. 3d 730, 731, affd (1985), 108 Ill. 2d 286.) Although not directly on point, Craig stands for the proposition that the time limits set forth in section 10 — 10 of the Election Code are not jurisdictional, since the court deemed the issue waived. Craig, 207 Ill. App. 3d at 1048.

Thus, the issue at hand is more appropriately framed as whether the Board’s actions were void because of its failure to convene within the statutory time limitations. Section 10 — 10 specifically states that the day of the hearing on an objector’s petition “shall not be less than 3 nor more than 5 days after the receipt of the certificate of nomination or nomination papers and the objector’s petition by the chairman of the electoral board.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 46, par. 10 — 10.) Although the word “shall” is generally regarded as mandatory (see People ex rel. Larson v. Rosewell (1980), 88 Ill. App. 3d 272, 276), the term does not have a fixed or inflexible meaning and may be given a permissive meaning depending on the legislative intent. (Singleton, 103 Ill. 2d at 342; Larson, 88 Ill. App. 3d at 276.) A provision in a statute is mandatory when the failure to follow such provision renders the proceeding to which it relates illegal and void. In contrast, failing to observe a directory provision has no effect on the validity of the proceeding. (Shipley v. Stephenson County Electoral Board (1985), 130 Ill. App. 3d 900, 903.) When a statute prescribes the performance of an act by a public official or a public body, the question of whether it is mandatory or directory depends upon its purpose. (Shipley, 130 Ill. App. 3d at 902-03.) As succinctly stated by the appellate court:

“If the provision merely directs a manner of conduct for the guidance of the officials or is designed to secure order, system and dispatch in proceedings, it is generally directory, absent negative language denying the performance if the acts required are not done in the manner designated. If, however, the conduct is prescribed in order to safeguard a person’s rights, which may be injuriously affected by failure to act in the manner specified, the statute is mandatory.” Shipley, 130 Ill. App. 3d at 903.

Stated another way, a mandatory statute will describe the consequences for failing to follow its provisions. (See Havens v. Miller (1981), 102 Ill. App. 3d 558, 566.) For example, section 2 of article 13 of the 1970 Constitution mandates that “Failure to file a statement within the time prescribed shall result in ineligibility for, or forfeiture of, office.” (Ill. Const. 1970, art. XIII, §2.) Section 10—4 of the Election Code states that “No signature shall be valid or be counted in considering the validity or sufficiency of [a nomination] petition unless the requirements of this Section are complied with.” (Ill. Rev. Stat. 1991, ch. 46, par. 10—4.) In contrast, however, section 10—10 of the Election Code specifies the time during which a hearing on an objector’s petition must be held but fails to indicate what will occur when this procedure is not followed.

Furthermore, our supreme court has held that, in construing statutory provisions regulating elections, requirements as to which the legislature has not clearly indicated a contrary intention will be held directory, rather than mandatory, especially where such requirements do not contribute substantially to the integrity of the election process. (Craig v. Peterson (1968), 39 Ill. 2d 191, 196; see also Troutman v. Keys (1987), 156 Ill. App. 3d 247, 251.) Time limits have been considered directory where the rights of the parties are not injuriously affected by the failure to act within the time specified. (See Springfield-Sangamon County Regional Plan Comm’n v. Fair Employment Practices Comm’n (1978), 71 Ill. 2d 61, 68.) In other circumstances, the court has allowed substantial compliance with the technical requirements of election laws in the absence of express statutory language. See Craig, 207 Ill. App. 3d at 1046-47; Shipley, 130 Ill. App. 3d at 903-07; Havens, 102 Ill. App. 3d at 565.

A candidate’s rights may be adversely affected when the Electoral Board schedules its hearing well outside the time limits or fails to convene at all. In this case, the Electoral Board convened one day after the time limit set forth in section 10 — 10. However, Maske has not indicated what prejudice occurred by the delay, if any. Although we do not condone the Board’s actions and emphasize that the Electoral Board is under a duty to comply with the provisions of the Election Code, we find that failing to convene in the designated time frame was not a fatal flaw. Because section 10 — 10 fails to indicate the consequence for failing to follow its time limits, the Board could theoretically thwart the entire election process by scheduling its hearings outside the time frame. However, we simply do not believe that the legislature intended for such a defect to have the result of nullifying the Board’s authority. Accordingly, we hold that the failure to meet within the time frame specified in section 10 — 10 did not nullify the Board’s actions in ordering Maske’s name off the general election ballot.

For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

UNVERZAGT and BOWMAN, JJ., concur.


author: JUSTICE DOYLE JUSTICE NICKELS,

text:
      In re ESTATE OF LORRAINE J. BLOM, Deceased (Karl Blom, Ex’r of the Estate of Lorraine J. Blom, Deceased, Petitioner-Appellee v. Linda Usher, Respondent-Appellant).
    Second District
    No. 2—91—1103
    Opinion filed September 9, 1992.
    NICKELS, J., dissenting.
    Donald R. Brewer, of Dundee, for appellant.
    Leonard Cuttone, of Park Ridge, for appellee.
   JUSTICE DOYLE

delivered the opinion of the court:

Lorraine Blom died November 7, 1988. Karl Blom, as executor of her estate, filed a citation to recover the proceeds of a money market account held in joint tenancy by decedent and respondent, Linda Usher. Respondent appeals the trial court’s order that she turn over the balance of the account to the estate.

In 1987, decedent had cancer and her condition was slowly deteriorating. She was estranged from her only son, Karl. Respondent was a cousin of decedent. In January 1987, decedent executed a will naming respondent as primary beneficiary and executor. On June 20, 1987, decedent created a joint tenancy account with respondent at the McHenry State Bank by adding respondent’s name to an existing money market account. Ambrose Kittl, a vice-president of the bank, explained to decedent the characteristics of a joint tenancy account, including the right of survivorship.

Decedent subsequently executed a general power of attorney to respondent so that the latter could pay decedent’s bills and generally handle her affairs. At this time, decedent was mentally alert but was physically impaired by the cancer.

Sometime during 1988, decedent reconciled with her son, Karl, who thereafter helped care for her. On October 20, 1988, decedent executed a second will naming Karl as executor and primary beneficiary. The will was prepared by attorney Leroy Welter and executed at decedent’s home.

On November 1, 1988, respondent transferred $2,000 from the money market account to decedent’s checking account in order to pay decedent’s bills. On November 5, 1988, respondent closed the money market account. That same day she paid approximately $1,000 for decedent’s funeral expenses pursuant to a pre-need agreement. On November 7, decedent died.

Karl Blom, as executor of the estate, filed a citation against respondent to recover the balance of the money market account as well as certain items of personal property which respondent allegedly removed from decedent’s home after her death. Following a hearing, the court ordered respondent to turn over to the estate the balance of the account, $22,287.99 as well as other property not presently at issue. Following the denial of her motion to reconsider, respondent now appeals.

On appeal, respondent contends that the court erred in finding that the account proceeds were the property of the estate. Specifically, she maintains that the estate failed to rebut by clear and convincing evidence the statutory presumption that the opening of the joint account constituted a gift of the funds to respondent and that the court erred in considering evidence of events prior and subsequent to the opening of the account as bearing on the decedent’s intent. The estate responds that the only direct evidence of the decedent’s intention shows that she placed respondent’s name on the account solely for decedent’s convenience.

When a joint account is created in conformity with statutory requirements (see Ill. Rev. Stat. 1987, ch. 76, par. 2), a presumption arises that the person who furnishes the funds for the account intends to make a gift to the other person who is designated owner of the funds. (Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 590; In re Estate of Martin (1990), 201 Ill. App. 3d 1061, 1064.) The presumption is rebuttable, but the party challenging it has the burden of proving by clear and convincing evidence that no gift was intended. (Murgic, 31 Ill. 2d at 591; Martin, 201 Ill. App. 3d at 1064.) The critical question is the intent of the alleged donor at the time the account was created (In re Estate of Dawson (1968), 103 Ill. App. 2d 362, 367-68), but subsequent events may be considered as bearing on the issue of intent (In re Estate of Guzak (1979), 69 Ill. App. 3d 552, 555; Dawson, 103 Ill. App. 2d at 368). Evidence that the transfer was made for the mere convenience of the creator of the account is an indication of lack of donative intent. Guzak, 69 Ill. App. 3d at 555.

In the present case, respondent contends that there was no direct evidence of the decedent’s intent at the time the account was created and that the court improperly based its finding on evidence of events occurring after the opening of the account. Respondent’s theory appears to be that the placing of respondent’s name on the money market account was part of decedent’s estate plan, which included making respondent the executor and primary beneficiary of her will. Following decedent’s reconciliation with her son, she changed her estate plan, making him the executor and beneficiary of her new will. The estate points to evidence that decedent consulted with her lawyer shortly before her death about revoking the power of attorney and asked respondent to take her name off the account. However, neither of these things was legally accomplished prior to her death. Respondent contends that decedent’s subsequent change of heart is irrelevant in determining her initial intent where she failed to take the legal steps necessary to revoke the alleged gift.

The estate points to the testimony of Florence Welter, the wife of decedent’s lawyer and a family friend. Welter stated that, about the time decedent had respondent’s name added to the account, Welter had a conversation with the decedent. The decedent told her that she thought she would have respondent’s name added to the account so that her cousin would have access to the money (in addition to the checking account covered by the power of attorney) in case of some major medical or other emergency and that she was going to put respondent’s name on the account as a matter of convenience.

In addition, during respondent’s deposition, when asked whether her name was put on the account for decedent’s convenience, she responded:

“Yes. *** Well, it wasn’t really discussed. It was just on there.”

The trial judge is in the best position to make a determination as to the credibility of the witnesses and the weight to be afforded their testimony. (White v. Raines (1991), 215 Ill. App. 3d 49, 60.) The trial court’s findings of fact will not be disturbed unless they are contrary to the manifest weight of the evidence. (White, 215 Ill. App. 3d at 60.) In the present case, we cannot conclude that the trial court’s finding that the account was created solely for the convenience of the decedent was against the manifest weight of the evidence. Florence Welter testified that the decedent told her she wanted to put respondent’s name on the account for decedent’s convenience so that respondent would have access to the money in case some catastrophic emergency befell decedent and the funds in her checking account proved insufficient. This was consistent with evidence that she also gave respondent a general power of attorney which permitted respondent to pay decedent’s bills on a regular basis. Respondent’s above-quoted answer to a deposition question appears to be consistent with an interpretation that her name was added only for the decedent’s convenience.

In contrast, there was no direct evidence of a contrary intention. Respondent relies on the presumption arising from the execution of the joint account agreement itself and Kittl’s testimony that he explained the consequences to decedent. However, Kittl also stated that the bank did not have “signature for convenience” accounts. Thus, the joint account agreement would have been the only method available to decedent to accomplish her purpose.

The evidence of subsequent events, such as changing the will, does not directly bear on the issue and can be viewed as supporting either theory. The trial court, which had the opportunity to observe the witnesses and their demeanor, chose to accept the estate’s version. The court’s conclusion is supported by the evidence.

For the foregoing reasons, the court’s judgment is affirmed.

Affirmed.

BOWMAN, J., concurs.

JUSTICE NICKELS,

dissenting:

Because I find the trial court’s determination that petitioner presented clear and convincing evidence sufficient to overcome the presumption of decedent’s donative intent at the time of the creation of the joint tenancy was against the manifest weight of the evidence, I respectfully dissent.

The creation of a joint tenancy is presumed to have been made with donative intent unless the party seeking to avoid the gift comes forward with clear and convincing evidence that, at the time of the creation of the joint tenancy, no gift was intended. (Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 589.) This burden does not shift to the survivor of the joint tenancy. (Murgic, 31 Ill. 2d at 591.) Clear and convincing evidence is something less than beyond a reasonable doubt, but something more than a preponderance of the evidence. (In re Stephenson (1977), 67 Ill. 2d 544, 556-59.) However, factors that may be considered include evidence that the transfer was made solely for the convenience of the creator and the value of the account in relation to the total assets of the estate. (See Guzak, 69 Ill. App. 3d at 555.) Especially relevant, however, is the retention of control and authority over the account by the grantor. (Guzak, 69 Ill. App. 3d at 555.) Thus, circumstances and events that occur after the creation of the account may be considered. Guzak, 69 Ill. App. 3d at 555.

In addition to the presumption of donative intent, respondent offered evidence that, at the time of the creation of the joint tenancy, the right of survivorship was fully explained to and understood by decedent. Shortly before the creation of the joint account, decedent indicated an intent to make a future gift to respondent by naming respondent as the executor and primary beneficiary under decedent’s will. Decedent also executed a power of attorney in favor of respondent and relinquished all control over her financial affairs to respondent. The joint account contained slightly more than $22,000 in contrast to the balance of decedent’s estate in excess of $150,000.

To rebut the presumption and this circumstantial evidence, petitioner offered testimony of decedent’s attorney’s spouse, who was a family friend, that decedent had indicated that the account was created so that respondent would have access to the funds to pay any extraordinary medical expenses incurred by decedent, and respondent’s affirmative response to a question at her deposition inquiring whether the creation of the joint account was for decedent’s convenience. Thus, there was some evidence that the creation of the joint account was as a convenience for decedent.

However, such evidence does not rise to the level of clear and convincing evidence. The crucial factor of retained control is absent. (Guzak, 69 Ill. App. 3d at 555-56.) There is no evidence that convenience was the sole reason for decedent’s actions. (See In re Schneider (1955), 6 Ill. 2d 180, 183 (decedent told joint tenant that purpose of joint account was “in case I am sick you can go and get the money for me”).) Respondent qualified her affirmative response to a question concerning the creation of the joint account for decedent’s convenience by indicating that there had been no discussion of the matter. Although the creation of the joint account was undoubtedly convenient for decedent, absent evidence of retained control or an express indication that it was created solely as a matter of convenience for decedent, it does not absolutely follow that decedent did not also intend respondent to eventually receive such funds.

Petitioner’s evidence was insufficient to rebut the presumption of donative intent arising from the creation of the joint account, which was further circumstantially supported by evidence of decedent’s conduct in contemporaneously naming respondent her primary beneficiary, evidence of decedent’s clear understanding of the import of the creation of the joint account, and the complete lack of control or authority retained by decedent over such account. Therefore, because I would hold that petitioner failed its burden of proof to rebut by clear and convincing evidence the presumption of donative intent at the time the joint account was created, I respectfully dissent.


author: PRESIDING JUSTICE INGLIS

text:
    JEFFRY C. GILMORE et al., Plaintiffs-Appellants, v. VICTOR J. KOWALKIEWICZ et al., Defendants (Cookie Hanson et al., Defendants-Appellees).
    Second District
    No. 2—91—1303
    Opinion filed September 15, 1992.

      Kenneth T. Kubiesa, Barbara J. Gosselar, and Harlan J. Spiroff, all of Kubiesa & Power, Ltd., of Westmont, for appellants.
    John F. Horvath and Peter A. Nicholson, both of Horvath, Lieber & Quilici, of Chicago, and William D. Lyman, of Bedrava, Lyman & Van Epps, of Oak Brook, for appellees.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

The plaintiffs Jeffry and Esther Gilmore brought an action against defendants Cookie Hanson, Rosalind Hancock and Woodland Realty Company, arising from plaintiffs’ purchase of certain property from Dr. Victor Kowalkiewicz and his wife, Mary Ann Kowalkiewicz. Plaintiffs alleged that defendants falsely represented that if the plaintiffs purchased the property, Jeffry Gilmore would be able to use the office addition of the property to conduct his dental practice. The circuit court of Du Page County granted defendants’ motion for summary judgment, ruling any misrepresentations made by defendants were misrepresentations of law upon which plaintiffs were not entitled to rely. Plaintiffs contend on appeal that the entry of summary judgment was error because genuine issues of fact exist regarding whether they were entitled to rely on defendants’ misrepresentations. We reverse and remand.

In September or October 1987, plaintiffs noticed a “For Sale” sign on the Kowalkiewiczes’ home located at 2601 Maple Avenue in unincorporated Downers Grove, Illinois. A different sign on the home indicated that it was also used as Dr. Kowalkiewicz’ chiropractic office. After plaintiffs called the telephone number on the for sale sign, defendant Hanson met the plaintiffs at the residence and showed them the house and office. During this visit, Jeffry Gilmore identified himself as a dentist and told Hanson that he was mainly interested in the office rather than the residential areas of the home. He asked Hanson if he could use the office addition for his dental office. Hanson replied: “You can use it for a dental office,” and then gave Jeffry a listing sheet prepared under the supervision of defendant Hancock and distributed through defendant Woodland Realty. The listing sheet described several features of the home’s interior, exterior, and amenities. It also contained a list of several in-home businesses, including “dentist,” as suggested uses for the office addition.

During a return visit, Hanson pointed out different aspects of the office, comparing how Jeffry Gilmore could use it for his dental practice with how Dr. Kowalkiewicz had used it for his chiropractic practice. During a third visit, Dr. Kowalkiewicz, who had been using the office for his practice since 1972, described to plaintiffs how he used the chiropractic office, how successful his practice was, and how easily plaintiffs could convert the office to accommodate Jeffry’s dental practice. At no time during any visits were any questions asked, or any representations made, regarding the specific local zoning laws or legally permitted uses of the property.

In November 1987, plaintiffs and Dr. Kowalkiewicz agreed on the purchase of the property, with the parties successfully closing the deal on December 23, 1987. An attorney was retained by plaintiffs at or near the time the sales contract was executed. However, there is no evidence in the record to indicate the scope of his representation or the exact date when he was retained. We assume the attorney did not research any zoning requirements or laws concerning the use of the property.

Jeffry Gilmore spent the next several months installing his dental equipment and preparing the office for his intended full-time practice. On June 30, 1988, plaintiffs received a notice from the Du Page County Zoning Enforcement office, informing plaintiffs they were operating a dental office on residential property without a variation, in violation of Du Page County Zoning Ordinance §11 (19_). Plaintiffs appealed to the county board requesting the board to interpret the ordinance and approve the plaintiffs’ use of the office for Jeffry Gilmore’s dental practice. The board ruled that after a 1980 amendment Dr. Kowalkiewicz’ chiropractic office had become a legal nonconforming use of the property, that Jeffry Gilmore’s dental equipment was different from that used by a chiropractor, and that the dental office did not comply with the requirements of the current zoning ordinance for a home occupation. The board concluded that the use of the property for a dental office constituted a change of use under section 37— 5.2 — 8(c) of the ordinance and was therefore illegal without a special use permit.

On administrative review, the circuit court upheld the board’s ruling. On appeal, this court affirmed, upholding the board’s ruling that the plaintiffs’ use of the property for a dental office was an impermissible nonconforming use under the zoning ordinance. Gilmore v. County of Du Page (1991), 209 Ill. App. 3d 66 (hereinafter Gilmore I).

The plaintiffs eventually obtained a special use permit, allowing Jeffry Gilmore to use his dental office for 20 hours per week for a period of eight years. Plaintiffs subsequently filed a four-count complaint against defendants and the Kowalkiewiczes arising from events surrounding plaintiffs’ purchase of the residence. Plaintiffs eventually dismissed count I, the only count directed against the Kowalkiewiczes. Counts II, III and IV alleged fraud, the violation of section 2 of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1985, ch. 121½, par. 261 et seq.), and negligent misrepresentation against Hanson, Hancock, and Woodland Realty. These counts alleged that the defendant realtors falsely represented that an addition to the home could be used for an in-home dental office, thereby inducing plaintiffs to buy the property.

On October 22, 1991, the trial court conducted a hearing on defendants’ motion for summary judgment. The trial court found that the representation that the residence could be used as a dentist’s office was a misrepresentation of law. Specifically, the judge stated:

“[Tjhis is not a case involving using a misrepresentation for rescission of the contract based on the mutual mistake. It’s an action concerning monetary damages. Based on this question, I determined this case to be strictly a question of law. That the plaintiff, with its own attorney, didn’t have a right to rely on misrepresentation of law of the brokers.”

Thus, the trial court granted defendants’ motion for summary judgment. Plaintiffs thereafter filed a timely appeal.

The purpose of summary judgment is to determine the presence or absence of triable issues of fact, and in determining whether the moving party is entitled to summary judgment, the pleadings, depositions, admissions, and affidavits should be construed strictly against the movant and liberally in favor of the opponent. (Smith v. South Shore Hospital (1989), 187 Ill. App. 3d 847, 853.) A motion for summary judgment must be denied and the resolution of facts and inferences must be made at trial if any facts upon which reasonable persons could disagree are identified, or if inferences leading to different conclusions fairly could be drawn from the facts. (Diamond Headache Clinic, Ltd. v. Loeber Motors, Inc. (1988), 172 Ill. App. 3d 364, 370.) On appeal, the court will reverse an order granting summary judgment if it determines that a material question of fact exists and that the moving party is not entitled to a judgment as a matter of law. (Estate of Kern v. Handelsman (1983), 115 Ill. App. 3d 789, 794.) However, summary judgment for the defendant is proper if, from the papers on file, the plaintiff fails to establish an element of his cause of action. Pyne v. Witmer (1989), 129 Ill. 2d 351, 358.

Plaintiffs contend that a material question of fact exists concerning whether plaintiffs were justified in relying on defendants’ statements that Jeffry Gilmore could use the home for his dental office. Defendants contend that their statements that Jeffry Gilmore could use the property for his dental office were representations of law upon which plaintiffs were not justified to rely. They claim that the general rule is that one is not entitled to rely upon a representation of law because both parties are presumed to be equally capable of knowing the law. (Hamming v. Murphy (1980), 83 Ill. App. 3d 1130, 1135.) Defendants also contend that plaintiffs were not justified in relying on their representations because plaintiffs had retained an attorney who could have investigated the local zoning ordinances and discovered the property’s permitted uses.

In their summary judgment motion and in their brief to this court, defendants primarily rely on Hamming and City of Aurora v. Green (1984), 126 Ill. App. 3d 684, decisions from this court, as well as O’Brien v. Noble (1982), 106 Ill. App. 3d 126, from the Appellate Court, Fourth District. In Hamming, one of the sellers advised a buyer of certain real estate that all the zoning “red tape” had been taken care of, thereby permitting the construction of apartments on the subject property. The court held that this could not constitute a fraudulent misrepresentation because it was a representation of law. (Hamming, 83 Ill. App. 3d at 1135.) The buyer and seller were presumed to have equal knowledge of the law, so the buyer’s reliance on the seller’s statement was unjustified. 83 Ill. App. 3d at 1135.

In City of Aurora, the sellers allegedly told the buyers that a building was properly zoned for use as five residential units when it was actually located in a two-family residential zone and had been remodeled by the sellers without city approval. This court applied the Hamming rationale and concluded that the buyers could not reasonably rely on the seller’s representation as the zoning law is a matter of public record. Thus, the defendants were not liable under the Consumer Fraud Act. City of Aurora, 126 Ill. App. 3d at 688-89.

Similarly, in O’Brien, plaintiffs asserted that defendants negligently misrepresented, in an advertisement, that “one house” could be built on a five-acre parcel of land for sale. Plaintiffs were subsequently unable to obtain a building permit for a house because of developmental restrictions in a local zoning ordinance, (O’Brien, 106 Ill. App. 3d at 127-28.) Applying the Hamming rationale, the court stated that “the facts concerning the zoning of the property were a matter of public record and readily available to plaintiffs” and held that defendants were not liable for negligent misrepresentation. 106 Ill. App. 3d at 130.

Plaintiffs in the case at bar rely on three other decisions of this court: Kinsey v. Scott (1984), 124 Ill. App. 3d 329, Tan v. Boyke (1987), 156 Ill. App. 3d 49, and Perkins v. Collette (1989), 179 Ill. App. 3d 852. The defendant in Kinsey sold a five-unit building to the plaintiff. Defendant did not inform plaintiff that the fifth apartment had been constructed without a building permit. The court held that defendant’s statements that the building was a five-unit building and complied with the applicable building codes were misrepresentations because the building was not lawfully a five-unit building. Kinsey, 124 Ill. App. 3d at 336.

The court further concluded that the plaintiff was justified in relying on the misrepresentations. (124 Ill. App. 3d at 338.) In reaching this conclusion, the Kinsey court noted that the question is whether, under all the circumstances, plaintiff had a right to rely on the false representations. (124 Ill. App. 3d at 337.) Citing Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286-87, the court stated this question is to be answered while viewing the representations in light of all the facts of which plaintiff had actual knowledge as well as those of which she might have availed herself by the exercise of ordinary prudence. (124 Ill. App. 3d at 337-38.) Applying these principles, the Kinsey court stated:

“Nor do we believe that plaintiff was required under the circumstances here to make an investigation on her own to determine if a building permit had been issued for the construction of the basement apartment or whether that apartment was in violation of the city code. As stated in Chicago Title & Trust Co. v. First Arlington National Bank (1983), 118 Ill. App. 3d 401, 409-10, 454 N.E.2d 723, quoting from Prosser, Torts sec. 108, at 718 (4th ed. 1971), ‘ “[i]t is only where, under the circumstances, the facts should be apparent to one of [plaintiff’s] knowledge and intelligence from a cursory glance, or he has discovered something which should serve as a warning that he is being deceived, that he is required to make an investigation of his own.” ’ ” 124 Ill. App. 3d at 338.

Finally, in Kinsey, we distinguished Hamming by noting that when the defendant in Kinsey represented that the building was a five-unit apartment building, he “was vouching for the proper construction of all five units in his position as builder and owner.” (124 Ill. App. 3d at 339.) We determined this to be a misrepresentation of fact even though it was discoverable by reviewing the city building codes and zoning ordinances. 124 Ill. App. 3d at 339.

This court applied the Kinsey rationale in Tan v. Boyke. In Tan, plaintiff purchased two apartment buildings on adjoining lots. One of the buildings contained 35 units; the other contained 31 units. The construction permit for the 35-unit building only authorized defendant to build 31 units in that structure. Additionally, the building permit applications for both lots included the south 60 feet of the lot containing the 31-unit building. Defendant did not tell plaintiff about those discrepancies, which resulted in a greater density of housing units and less available parking than local ordinances permitted. Tan, 156 Ill. App. 3d at 52.

As do defendants here, the defendant in Tan argued that the misrepresentations were ones of law rather than fact and that the plaintiff did not justifiably rely on the misrepresentation because the plaintiff had the opportunity to discover the true situation herself. (156 Ill. App. 3d at 56.) Addressing whether the plaintiff had the right to rely upon defendant’s misrepresentations, the Tan court stated:

“It is clear that only a complicated analysis of the plat of survey and the applicable zoning ordinances would have revealed to the plaintiff the irregularities in construction and the resulting illegality of the buildings. Without some indication that the buildings had been improperly or illegally constructed, it is unlikely that a reasonably prudent prospective purchaser would have undertaken so extensive an analysis of the ordinance. *** We conclude the plaintiff reasonably and justifiably relied on the defendant’s silence.” 156 Ill. App. 3d at 58.

In Perkins v. Collette, the defendant, a real estate agent, owned his own parcel of land. He had tried to obtain a building permit from the county, but his request was denied. The plaintiffs, prospective buyers, looked at the parcel and asked defendant if they could build a house on it, to which defendant replied that they could. Plaintiffs paid defendant earnest money on the parcel and additional money toward the final purchase at closing. Plaintiffs thereafter sought a building permit from the county board. The board told the plaintiffs it had previously denied defendant a building permit and would similarly deny plaintiffs’ request. Plaintiffs sued defendant and his agency under section 2 of the Consumer Fraud Act seeking rescission for mistake and money damages for intentional misrepresentation. The trial court dismissed the complaint. Perkins v. Collette, 179 Ill. App. 3d at 854-55.

On appeal, we reviewed our prior decisions and stated that the primary factor which distinguishes Hamming, O’Brien and City of Aurora from Kinsey and Tan is whether the seller’s misrepresentations could have been discovered merely by reviewing applicable zoning or building ordinances. (179 Ill. App. 3d at 859.) We held that it could not be determined from the allegations of the amended complaint whether plaintiffs could have discovered they would be unable to build a home on the land by merely reviewing the applicable building and zoning ordinances. 179 Ill. App. 3d at 860.

We believe that the Kinsey, Tan, and Perkins rationale should be applied in the present case. The key issue in this line of cases has evolved from a strict misrepresentation of fact versus law dichotomy to whether the misrepresentation could have been discovered merely by reviewing the applicable zoning ordinances and building codes.

Prior to 1980, the zoning ordinance in question allowed for several listed “home occupations” in residential districts:

‘HOME OCCUPATION. Any gainful occupation or profession engaged in by the occupant at or from the dwelling. *** Permissible home occupations include but are not limited to the following: art studio; dressmaking; professional offices of a clergyman, lawyer, physician, dentist, architect, engineer, or accountant, when located in a dwelling unit occupied by the same.’ Du Page County Zoning Ordinance §11 (19_).” Gilmore, 209 Ill. App. 3d at 67.

In 1980, the ordinance was amended to limit home occupations permissible in single-family residential districts to those which, inter alia, “ ‘[are] operated in [their] entirety within the residence (not any accessory building) and only by the person or persons residing therein,’ do not have ‘a separate entrance from outside the building,’ do not ‘exceed three hundred (300) square feet in area,’ and do not ‘utilize mechanical or electrical equipment other than the type normally found in the single-dwelling unit.’ (Du Page County Zoning Ordinance §11 (amend. 1980).)” (Gilmore, 209 Ill. App. 3d at 67.) Regarding possible legal nonconforming uses, section 37 — 5.2—8 of the amended ordinance provides:

“ ‘The nonconforming use of land, not involving a structure or building, or in connection with any building or structure thereon, is incidental or accessory to the principal use of the land, may be continued subject to the following:
* * *
c. The nonconforming use of land shall not be changed to any other use except to a use permitted in the district in which the land is located.’ Du Page County Zoning Ordinance §37 — 5.2—8 (19_).” Gilmore, 209 Ill. App. 3d at 68.

The issue, as expressed in Gilmore I, was whether the dentist’s office is the same “use” as the chiropractor’s office. However, we noted that the ordinance as amended does not define the term “use.” (209 Ill. App. 3d at 70.) Given the vague nature of the ordinance as amended, the plaintiffs here could not have discovered, by merely reviewing these provisions, whether they could lawfully use the residence for a dental practice. In fact, the record indicates that the county board itself deliberated for nearly a month to interpret the ordinance. After receiving the violation notice, plaintiffs appealed to the board seeking a ruling that plaintiffs’ intended use of the premises for a dental practice was allowable under the ordinance.

The board held a hearing on plaintiffs’ appeal on November 17, 1988, met to vote on the appeal two weeks later, and issued its findings denying plaintiffs’ appeal on December 12, 1988. This deliberate manner in which the board interpreted its own ordinance supports plaintiffs’ contention that the defendant realtors’ misrepresentations could not have been discovered merely by reviewing the zoning ordinance. (Perkins, 179 Ill. App. 3d at 859.) Consequently, applying the Perkins test, we find plaintiffs justifiably relied on defendants’ misrepresentation that plaintiffs could use the premises for Jeffry Gilmore’s dental office.

We are not persuaded by defendants’ argument that plaintiffs could not justifiably rely on defendants’ statements because the plaintiffs retained an attorney. There is no evidence that plaintiffs hired the attorney to investigate the zoning ordinance or that he was retained in time to modify the sales contract. Further, we know of no authority that would impose the duty to investigate the zoning ordinance on an attorney hired merely to represent a buyer in a residential real estate closing. Even if plaintiffs’ attorney had conducted such investigation in this case, defendants’ argument would still fail. As stated previously, whether the property could be used as a dental office was not ascertainable by merely reviewing the ordinance.

Accordingly, the order of the circuit court of Du Page County granting summary judgment as to counts II, III, and IV of plaintiffs’ complaint is reversed and the cause remanded for further proceedings.

Reversed and remanded.

McLAREN and DUNN, JJ., concur.


author: JUSTICE DOYLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GINO A. FORTUNE, Defendant-Appellant.
    Second District
    No. 2—90—1065
    Opinion filed September 16, 1992.

      G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Following a jury trial in absentia, defendant, Gino A. Fortune, was found guilty of unlawful possession of firearm ammunition by a felon (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1.1(a)) and unlawful possession of firearm ammunition without a firearm owners identification card (Ill. Rev. Stat. 1989, ch. 38, par. 83 — 2(a)). Following the sentencing hearing, defendant was sentenced in absentia to 10 years’ imprisonment which, after the trial court granted defendant’s motion to reconsider, was reduced to five years. Defendant then filed this timely appeal.

The sole issue on review is whether the presentence report was statutorily insufficient.

Defendant was charged by information with the offenses of unlawful possession of firearm ammunition by a felon and unlawful possession of firearm ammunition without a firearm owners identification card. On October 11, 1989, defendant appeared in the circuit court of Kane County, where he voluntarily waived his right to a preliminary hearing and was advised of the charges pending against him and potential penalties. The trial judge expressly admonished defendant that because he was free on bond he was obligated to make every court appearance, and, if the matters were set for trial and defendant failed to appear, the trial would proceed in his absence. Defendant acknowledged that he understood the court’s admonition and the charges against him. Defendant entered his plea of not guilty, and the cause was set for a jury trial.

On the date of trial, defendant failed to appear. Defense counsel informed the court that defendant had not been cooperative, had failed to inform counsel of his current address and that two letters sent to defendant by counsel were returned as undeliverable. Following a short discussion and the trial court’s confirmation that defendant had been previously admonished concerning the consequences of his failure to appear, a jury trial was held in defendant’s absence.

Steven Henderson, a police officer with the City of Aurora, testified that on September 17, 1989, at approximately 12:30 a.m., he was on routine patrol with Officer Jenkins when he observed a vehicle with an expired vehicle registration sticker and pulled it over. At trial, Henderson identified a photograph of defendant as being the same person he observed in the vehicle. Henderson further testified that defendant was unable to produce a driver’s license and when initially asked his name he provided a fictitious name. After obtaining defendant’s true name and date of birth, a computer check revealed that defendant’s driver’s license had been suspended. Henderson placed defendant under arrest and called for the transportation van.

Upon arrival of the transportation van, Henderson observed Officer Lueders conduct a preliminary routine search of defendant. Specifically, he observed Lueders remove a Western Super X 12-gauge shotgun shell from a waistband pouch that defendant was wearing. Officer Lueders’ testimony was consistent with Henderson’s observation. Defendant was then taken into custody and transported to the station. Once at the station, Henderson asked defendant whether he had a valid firearm owners identification card, and defendant responded no. Henderson also ran a check of defendant’s criminal history.

At trial, the assistant State’s Attorney identified an exhibit as being a certified copy of conviction for a defendant named Gino Fortune and stated that he recognized the guilty pleas attached to the copy. He recalled that the documents referred to an incident where defendant was charged with two counts of unlawful delivery of a controlled substance and that defendant was convicted of both offenses.

Following the State’s case in chief, defense counsel’s motion for directed verdict was denied, and defense counsel advised the court that he had no evidence to present. After instruction and deliberation, the jury returned verdicts of guilty as to both of the charged offenses.

At the sentencing hearing, the defendant again did not appear. The presentence report submitted by the presentence investigator consisted solely of a summary of defendant’s prior criminal history and a summary of new charges and pending cases. Defense counsel questioned the accuracy of the presentence report based upon an entry which stated that defendant was white, whereas the photograph admitted at trial depicted the defendant as being black. Defense counsel concluded, without further elaboration, that it was his belief that there might be other inconsistencies or errors in the report. The prosecutor responded that it was a clerical error and that he had personally checked the convictions and pending cases that appeared in the summary of defendant’s criminal history. He further concluded, notwithstanding the error, that the report was otherwise accurate.

Attached to the presentence report was a letter from the presentence investigator to Judge Hogan explaining that after she obtained defendant’s last known address from defense counsel, she sent two letters to defendant requesting him to schedule appointments for interviews. The first letter was returned as undeliverable, and the second had not been returned. She further indicated that defendant had neither telephoned nor reported to the department of adult court services.

Following the testimony of one police officer and two investigators about specific instances of criminal conduct by defendant and their interaction with defendant pertaining to those occasions, the trial judge sentenced defendant in absentia to 10 years’ imprisonment. Defense counsel subsequently filed a motion to reconsider, and defendant’s sentence was reduced to five years. This appeal then followed.

Defendant contends that the presentence investigator’s failure to provide the court with a statutorily acceptable presentence report necessitates remanding his cause to the trial court for a new sentencing hearing. Defendant argues that, notwithstanding his absence, certain items of statutorily required information could readily have been provided in the report and that the probation officer’s failure to do so was improper. The State responds that defendant should be estopped from complaining about deficiencies in the report because he wilfully absented himself from the proceedings. The State further argues that requiring a presentence investigator to provide a catalog of community services in the report without having previously interviewed defendant would result in little or no practical benefit.

While it is incumbent upon a presentence investigator to present a presentence report consistent with statutory directives (see People v. Meeks (1980), 81 Ill. 2d 524, 533), it is our opinion that where omissions in a presentence report were occasioned by the wilful absence of a defendant from the presentence interview and sentencing hearing, he should not be heard to later complain about the sufficiency of the report (see People v. Lane (1980), 91 Ill. App. 3d 827, 830). The reason for the statutory requirement of a presentence report is to insure that the trial judge will possess all necessary information concerning a defendant, including his criminal history, prior to sentence being imposed. (People v. Youngbey (1980), 82 Ill. 2d 556, 564.) While it remains beyond dispute that a presentence investigation and report is a mandatory legislative requirement in felony cases (Youngbey, 82 Ill. 2d at 561) and that presentence investigators should make every reasonable attempt to comply with the statutory directives, this court will not strictly enforce these requirements where a defendant’s wilful absence from presentence interviews and sentencing hearings frustrates the presentence investigation and preparation of the presentence report.

In the present case, it is primarily the wilful absence of defendant that caused the presentence report to be incomplete. For example, the presentence investigator was unable to obtain from defendant information about his physical and mental condition, family situation, education, occupation and personal habits, thus making it impossible for her to include such information in the report. Although, as defendant argues, information about special resources available within the community might have been included in the presentence report, it seems superfluous to include such information without having had the benefit of an interview with defendant. As the plain language of the statute makes clear, the purpose of information about community resources is to provide the court with insight into those services “which could aid the defendant’s successful reintegration into society.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005—3—2(2).) Without the benefit of defendant’s presence, it would be practically impossible to ascertain which facilities could aid defendant’s successful reintegration into society. Moreover, merely requiring a presentence investigator, without the benefit of an interview, to include a laundry list of community resources in every presentence report would amount to a wholly ministerial task of little or no value. Finally, defendant waived his last opportunity to complain about deficiencies in the report by failing to attend the sentencing hearing. (See Lane, 91 Ill. App. 3d at 830.) We conclude, therefore, that defendant cannot now prevail by citing deficiencies in his presentence report, where the omissions were largely occasioned by his wilful absence.

For the foregoing reasons, we affirm the order of the circuit court of Kane County sentencing defendant to five years’ imprisonment.

Affirmed.

BOWMAN and NICKELS, JJ., concur.