author: JUSTICE LEWIS

text:
      In re INCORPORATION OF THE VILLAGE OF GODFREY, MADISON COUNTY (Robert L. Higgins et al., Intervenors-Appellants).
    Fifth District
    No. 5 — 91—0894
    Opinion filed April 13, 1993.
    Rehearing denied May 13,1993.
    Robert E. Ryan, of Alton, for appellants.
    James S. Sinclair, of Stobbs & Sinclair, and William F. Sherwood, of Thomas, Mottaz, Eastman & Sherwood, both of Alton, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

Appellants, Robert L. Higgins, William J. Preis, and Rand J. Springman, appeal from the circuit court of Madison County’s order denying their petition to intervene, objecting to the court’s order setting municipal officer elections, and asking the court to vacate all orders previously entered in this case. We affirm for the reasons set forth below.

The facts and history of this case are as follows: A petition to form a new municipality, the Village of Godfrey, and an affidavit and a copy of the published notice of the intent to file the petition were filed on November 20, 1990, in the circuit court of Madison County pursuant to the Illinois Municipal Code. (Ill. Rev. Stat. 1989, ch. 24, pars. 2 — 3—5a, 2 — 3—6.) A hearing was held on the petition, and no objections were presented. The court ruled that the proposed area of incorporation constituted a village in fact, and the court certified the question of incorporation for submission to the electors at the election to be held on April 2, 1991. At the election of April 2, 1991, the electors voted in favor of incorporation of the Village of Godfrey.

Subsequently, on April 10, 1991, pursuant to a petition to set municipal elections filed by the incorporators, the court entered an order setting the election of the municipal officers of the village for November 5, 1991. The appellants filed their petition to intervene on September 4, 1991. In their petition, the appellants objected to the court’s order setting the election of the municipal officers and to the court’s order submitting the question of incorporation of the village, asserting that the court had no jurisdiction to enter these orders. The court permitted the appellants to intervene, and following a hearing on the petition to intervene, the court denied the appellants’ petition. This appeal followed.

On appeal, the primary concern is the reconciliation of certain provisions of the Election Code (Ill. Rev. Stat. 1989, ch. 46, par. 1 — 1 et seq.) with certain provisions of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, 1 — 1—1 et seq.). While several sections of each code come into consideration in this decision, the sections which are to be reconciled are section 28 — 2 of the Election Code (Ill. Rev. Stat. 1989, ch. 46, par. 28 — 2) and sections 2 — 3—6 and 2 — 3—7 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, pars. 2 — 3—6, 2 — 3—7). It is the appellants’ contention that the court exceeded the statutory authority of section 28 — 2 when it set the referendum of the question of incorporation on April 2, 1991, as the notice of the intention to file the petition to incorporate was defective under the statute. The appellants’ second contention is that the court exceeded its statutory authority provided in section 2 — 3—7 when it set the election of the municipal officers for November 5, 1991, as this date was not a scheduled date for a general municipal election. The appellants assert that because the court exceeded its statutory authority and the statute is the sole basis of the court’s jurisdiction, the petition for incorporation and the subsequent referendum flowing from the petition were null and void, and that the election of the municipal officers must be vacated for lack of jurisdiction.

Because it necessarily follows that if the referendum considered by the electors at the April 2, 1991, election was null and void, the subsequent election of officers was also void, we first consider whether the court had jurisdiction to order the referendum for incorporation under the statute. As the appellants correctly assert, a court derives its jurisdiction from the statute alone when considering the establishment of a municipal corporation; therefore, the conditions of the statute must be complied with or the court has no jurisdiction and the elected officers are not justified in holding their offices. (People ex rel. Moran v. Teolis (1960), 20 Ill. 2d 95, 169 N.E.2d 232.) Because the issue requires this court to reconcile the Election Code with the Illinois Municipal Code, our consideration of necessity entails statutory construction of the pertinent sections of the codes involved.

Generally, to construe a statute, a court must ascertain the intent of the legislature and give it effect. (City of Springfield v. Board of Election Commissioners (1985), 105 Ill. 2d 336, 473 N.E.2d 1313.) The entire statute must be examined for guidance as to that intent. (City of Springfield v. Board of Election Commissioners (1985), 105 Ill. 2d 336, 473 N.E.2d 1313.) In considering the statute, language is given its plain and ordinary meaning. (Roser v. Anderson (1991), 222 Ill. App. 3d 1071, 584 N.E.2d 865.) Also, the statute as a whole must be considered, and each word, clause and section should be attributed some reasonable meaning. (Roser v. Anderson (1991), 222 Ill. App. 3d 1071, 584 N.E.2d 865.) It is also a rule of construction that an interpretation that renders any part of a statute superfluous or produces an absurd result must be avoided. (Roser v. Anderson (1991), 222 Ill. App. 3d 1071, 584 N.E.2d 865.) A court must also consider the objective of the statute and the evils it remedies when construing the statute. (City of Springfield v. Board of Election Commissioners (1985), 105 Ill. 2d 336, 473 N.E.2d 1313.) It is presumed that the legislature intended its enactments to be consistent and harmonious, and where provisions are in pari materia, the provisions must be construed in reference to each other and in harmony with each other. (Robinson v. Jones (1989), 186 Ill. App. 3d 82, 542 N.E.2d 127.) It has been held that the Election Code and the Illinois Municipal Code are to be considered in pari materia when construing the provisions of these codes. (United Citizens v. Coalition to Let the People Decide in 1989 (1988), 125 Ill. 2d 332, 531 N.E.2d 802.) With these principles in mind, we now consider the pertinent provisions of the statutes involved.

Section 28 — 2 of the Election Code provides in pertinent part as follows:

“A petition for the incorporation or formation of a new political subdivision whose officers are to be elected rather than appointed must have attached to it an affidavit attesting that at least 108 days and no more than 138 days prior to such election notice of intention to file such petition was published in a newspaper published within the proposed political subdivision, or if none, in a newspaper of general circulation within the territory of the proposed political subdivision in substantially the following form:
NOTICE OF PETITION TO FORM A NEW_
Residents of the territory described below are notified that a petition will or has been filed in the Office of_requesting a referendum to establish a new _, to be called the__
*The officers of the new_will be elected on the same day as the referendum. Candidates for the governing board of the new_may file nominating petitions with the officer named above until__
The territory proposed to comprise the new _ is described as follows:
(description of territory included in petition) (signature)_
Name and address of person or persons proposing the new political subdivision.
Failure to file such affidavit, or failure to publish the required notice with the correct information contained therein shall render the petition, and any referendum held pursuant to such petition, null and void.

* Where applicable.” (Ill. Rev. Stat. 1989, ch. 46, par. 28 — 2.) According to the appellants, it is the incorporators’ failure to comply with the asterisked portion of the notice provision in the foregoing statute which rendered the petition and the referendum held pursuant thereto null and void.

The incorporators provided notice as required under section 28 — 2; however, the notice did not include the asterisked paragraph of the notice form of the statute. The appellants assert that this paragraph was required as the municipal officers were required by statute to be elected on the same day as the consideration of the referendum on incorporation, and because the notice lacked this paragraph, the statute was not complied with and the court had no jurisdiction.

In conjunction with section 28 — 2, the appellants support their argument that the asterisked paragraph in the notice was required by citing to sections 28 — 1 and 2A — 1.2(f) of the Election Code (Ill. Rev. Stat. 1989, ch. 46, pars. 28 — 1, 2A — 1.2(f)). Section 28 — 1 provides that the initiation and submission of all public questions to be voted upon by the electors is subject to the provisions of article 28 of the Election Code. (Ill. Rev. Stat. 1989, ch. 46, pars. 28 — 1 through 28 — 13.) Section 2A — 1.2(f) provides:

“At any election established in Section 2A — 1.1, public questions may be submitted to voters pursuant to this Code and any special election otherwise required or authorized by law or by court order may be conducted pursuant to this Code.
Notwithstanding the regular dates for election of officers established in this Article, whenever a referendum is held for the establishment of a political subdivision whose officers are to be elected, the initial officers shall be elected at the election at which such referendum is held if otherwise so provided by law. In such cases, the election of the initial officers shall be subject to the referendum.” (Ill. Rev. Stat. 1989, ch. 46, par. 2A — 1.2(f).)

The appellants contend that when these sections are considered together, it is apparent that the municipal officers must be elected the same day as the referendum and the asterisked paragraph of the notice is required.

It is the incorporators’ position that, under sections 2 — 3—6 and 2 — 3—7 of the Illinois Municipal Code, a two-step process is provided, i.e., that the referendum of the incorporation is first considered, and subsequently, after a municipality is incorporated, the court must order the election of the officers. The incorporators conclude, therefore, that the asterisked paragraph of the notice is not applicable. The incorporators assert that the notice was proper, the statutory requirements were met, and the incorporation of the village was valid.

Section 2 — 3—6 of the Illinois Municipal Code provides:

“Upon the filing of such a petition [of intention to seek incorporation] with the circuit clerk, the court shall hear testimony and rule that the area under consideration is or is not a village in fact. The ruling of the court shall be entered of record in the court. *** If the court rules that the area does constitute a village in fact, such court shall enter an order so finding and the proposition shall be certified and submitted to the electors of such area in the manner provided by the general election law. ***
The result of the election shall be entered of record in the court. If a majority of the votes cast at the election favor incorporation as a village under the general law the inhabitants of the territory described in the petition are incorporated as a village under this Code with the name stated in the petition.” (Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—6.)

In addition to the foregoing statute, section 2 — 3—7 then provides:

“Thereupon the court shall order the election of village officers at the general municipal election in accordance with the general election law and for that initial election of officers, the clerk of the circuit court shall perform all election duties of the municipal clerk as provided by law. The term of office of the village officers elected at the next general municipal election shall terminate as soon as their successors are elected at the next regular election and have qualified.” (Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—7.)

From the plain language of the two aforementioned sections, we agree with the incorporators that the Illinois Municipal Code provides for a two-step process: (1) that the referendum of incorporation must be voted upon by the electors, that the results of the election must be entered of record, and that the municipality is then incorporated as a village, and (2) that an election of the municipal officers follows at some later date (the next general municipal election). How then does this language reconcile with section 2A— 1.2(f) of the Election Code, which requires that all elected officers of a newly formed political subdivision are to be voted upon the same day as, and be subject to, the referendum?

The crucial language in this consideration is the language “the initial officers shall be elected at the election at which such referendum is held if otherwise so provided by law." (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 46, par. 2A — 1.2(f).) The plain meaning of this language indicates that the officers will be simultaneously elected with the vote on the referendum if some other law, in addition to the Election Code, so provides. If we were to adopt the appellants’ interpretation of this language, that the Election Code takes precedence over the Illinois Municipal Code, the language of section 2A — 1.2(f) emphasized above and section 2 — 3—7 of the Illinois Municipal Code become superfluous, a result not intended by the legislature and a construction of the statutes to be avoided. Because section 2 — 3—7 provided that the election of the municipal officers occur at a subsequent date to the consideration of the referendum of incorporation, then the paragraph of section 2A — 1.2(f) requiring simultaneous elections is not applicable. Because simultaneous elections were not required, the asterisked paragraph of the notice form in section 28 — 2 was likewise not applicable, the incorporators’ notice was correct, and the petition and referendum on incorporation were valid.

The fallacy of the appellants’ reasoning arises in viewing section 2A — 1.2(f) as applying only to the incorporation of a village or a city under the Illinois Municipal Code. This section is not to be so restrictively considered, for this section applies to all petitions for formation of a new political subdivision. The term “political subdivision” is defined in the Election Code as “any unit of local government, or school district.” (Ill. Rev. Stat. 1989, ch. 46, par. 1 — 3.) Black’s Law Dictionary defines “local government” as a “[c]ity, county, or other governing body at a level smaller than a state.” (Black’s Law Dictionary 846 (5th ed. 1979).) From the dictionary definition, it is clear that a political subdivision cannot be restricted to mean a municipality but also applies to other governing bodies such as districts. When this definition is considered, a search of other statutes reveals that other codes refer to and are to be read in concert with the Election Code and, in particular, section 28 — 2. Without going into an exhaustive study, two particular codes will suffice for example.

In “An Act to create sanitary districts in certain localities ***,” the process for forming a sanitary district is begun by filing a petition similar to a petition filed under the Illinois Municipal Code. (Ill. Rev. Stat. 1989, ch. 42, par. 247.) This statute also requires compliance with the notice provision of the Election Code (section 28 — 2), similar to the Illinois Municipal Code. (Ill. Rev. Stat. 1989, ch. 42, pars. 247, 249.) If all statutory requirements are met, the proposition is then presented to the electors for a vote. Additionally, like the Illinois Municipal Code, the election of the officers of the sanitary district is to be conducted pursuant to the Election Code, but the statute for the creation of a sanitary district requires the election of the corporate officers of this political subdivision to come after the sanitary district is organized under the statutory provisions. (Ill. Rev. Stat. 1989, ch. 42, par. 250.) Thus, the asterisked paragraph in the notice provision of section 28 — 2 would not apply to the formation of a sanitary district since that statute does not “otherwise so provide” for a simultaneous election of corporate officers with the creation of the political subdivision.

In contrast is the Park District Code (Ill. Rev. Stat. 1989, ch. 105, par. 1 — 1 et seq.). In this statutory scheme, again, the creation of a park district, a political subdivision, is initiated by petition. (Ill. Rev. Stat. 1989, ch. 105, pars. 2 — 2, 2 — 2.1.) The Park District Code also requires the filing of an affidavit attesting that notice of the intent to petition for formation was given in conformance with the Election Code (again section 28 — 2), just as the Illinois Municipal Code and the statute governing the formation of sanitary districts provide. (Ill. Rev. Stat. 1989, ch. 105, par. 2 — 2.) However, under section 2 — 2.1(a) of the Park District Code (Ill. Rev. Stat. 1989, ch. 105, par. 2 — 2.1(a)), the petition of intent to form a park district must also state whether there will be five elected commissioners or seven appointed commissioners. Further, section 2 — 4 of the Park District Code (Ill. Rev. Stat. 1989, ch. 105, par. 2 — 4) states in pertinent part:

“If the circuit judge finds, upon such hearing, that the petition meets the requirements of this Act and the general election law, and that the boundaries as defined are reasonable boundaries for the formation of a park district or districts, he shall order the question submitted to referendum and, if applicable, the election of 5 commissioners in such proposed district or districts at the next regular election at which the question may be submitted in accordance with the general election law.” (Ill. Rev. Stat. 1989, ch. 105, par. 2 — 4.)

It is apparent from the foregoing language that, if the commissioners are to be elected rather than appointed, then the election of the commissioners must be presented on the same day as the referendum on the formation of the park district. Further, in section 2 — 5 of the Park District Code (Ill. Rev. Stat. 1989, ch. 105, par. 2 — 5), a sample ballot presenting the referendum and the election of the commissioners simultaneously to the electors at the same election is provided. The Park District Code thus presents the situation where the corporate officers are to be elected simultaneously with the referendum for formation, and therefore, the asterisked paragraph of the notice form in section 28 — 2 would be applicable to elected officials of a park district.

Having gone into an extensive analysis of why “* Where applicable” exists in the notice form of section 28 — 2, we conclude that the circuit court was correct in denying the appellants’ petition to intervene, as the required notice under section 28 — 2 was correct, and the court had jurisdiction over this matter.

We now consider the appellants’ second contention that the court’s order setting the election of the corporate authorities exceeded its statutory authority granted under section 2A — 1.4 of the Election Code (Ill. Rev. Stat. 1989, ch. 46, par. 2A — 1.4) and under section 2 — 3—7 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—7). The appellants assert that the court’s jurisdiction was exceeded under section 2A — 1.4 because it considered the incorporators’ petition for election of municipal officers ex parte, without notice and without a hearing on objections as that statute requires.

In considering this first prong of the appellants’ argument, we note that the circuit court mentioned section 2A — 1.4 in its order; however, it merely stated that it had considered this statute, not that it relied on it. We find that the court did not rely on this statute, for it is apparent that this statute is not applicable. Section 2A — 1.4 applies to emergency referenda for public questions. The definition of “public question” specifically excludes the nomination or election of candidates for office. (Ill. Rev. Stat. 1989, ch. 46, par. 1 — 3.) Thus, the petition for election of the corporate officers could not be considered by the court under section 2A — 1.4.

Section 2 — 3—7 of the Illinois Municipal Code, however, provides the court’s jurisdiction for setting the election of corporate officers for the village. (Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—7.) Under this section, a court is to set elections for corporate officers following a favorable vote on the incorporation of the village. Section 2 — 3—7 does not require a petition be presented to set the elections or that a hearing be held on this subject. It is an action required of the court by law once a new village is incorporated. Thus, the court had jurisdiction to enter its order of April 10, 1991, setting the date of the elections for the corporate officers.

The second prong of the appellants’ jurisdiction argument is that the court lacked jurisdiction to set the election of the officers for November 5, 1991. Their reasoning is that section 2 — 3—7 only permits the court to set the election for a “general municipal election.” (Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—7.) Under the consolidated-election schedule of the Election Code (Ill. Rev. Stat. 1989, ch. 46, pars. 2A — 1.1, 2A — 1.2), municipal elections are to be held on the first Tuesday of April in odd-numbered years (Ill. Rev. Stat. 1989, ch. 46, par. 2A — 1.2(c)(1)); therefore, according to the appellants, the court had no jurisdiction to set the election for November 5, 1991, but, instead, must set the election for the first Tuesday in April 1993.

The appellants are correct that section 2 — 3—7 requires that the court set the election of corporate officers for the “next general municipal election.” Again, a reference to the statutory definition section of the Election Code is useful to an understanding of the statute. The phrase “municipal election” is defined as “an election or primary, either regular or special.” (Ill. Rev. Stat. 1989, ch. 46, par. 1 — 3.) When the definition of municipal election is applied to section 2 — 3—7, the term “general municipal election” could mean either a special or general election. In this case, we find that the initial election of corporate officers is either a “special election” or is an election authorized by law or court order. Under this construction, and applying section 2A — 1.2(f), a special election or a court-ordered election can be conducted at any election established in section 2A — 1.1, which included November 5, 1991. Therefore, the court had jurisdiction to enter its order setting the elections of the officers of the Village of Godfrey for this date. We find that the court’s orders for the presenting of the referendum of incorporation and for setting the election of corporate officers and our statutory construction of the codes involved are in accord with the objective of the Election Code, which is to have a consolidated-election scheme to lessen voter confusion, increase voter participation, and provide uniformity in elections administration. City of Springfield v. Board of Election Commissioners (1985), 105 Ill. 2d 336, 473 N.E.2d 1313.

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

Affirmed.

CHAPMAN, P.J., and GOLDENHERSH, J., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
      In re MARRIAGE OF JIM E. NORFLEET, Petitioner, and DIANA L. NORFLEET, Respondent-Appellant (Joshua Norfleet, a Minor, by and through the Guardian of his Estate and Person, Geneva Norfleet, Intervenor-Appellee).
    Fourth District
    No. 4—92—0780
    Opinion filed April 22, 1993.
    Darrell E. Statzer, Jr. (argued), of Wilson, Dyar, Moss & Statzer, of Decatur, for appellant.

      Jerrold H. Stocks (argued), of Armstrong, Winters, Prince, Featherstun & Johnson, of Decatur, for appellee.
    Thomas E. Griffith, of Erickson, Davis, Murphy, Griffith & Walsh, Ltd., of Decatur, guardian ad litem.

   JUSTICE LUND

delivered the opinion of the court:

Respondent Diana L. Norfleet appeals from an order of the circuit court of Macon County denying her request for a qualified domestic relations order (QDRO), assigning her an interest in her deceased ex-husband’s 401(k) deferred benefit plan (401(k)).

Facts

Jim E. Norfleet and Diana L. Norfleet were married in 1978. One child, Carie L. Norfleet (born November 4, 1970), was adopted by Jim and Diana; and one child, Joshua J. Norfleet (born October 16, 1980), was born to Jim and Diana. Diana is disabled by multiple sclerosis.

Jim filed a petition for dissolution of the marriage on August 14, 1991. The petition stated that Jim was employed at Caterpillar and Diana was not employed. On February 7, 1992, a judgment of dissolution of marriage, based upon a marital settlement agreement, was entered in the circuit court of Macon County. That judgment provided in relevant part:

“9. That said marital settlement agreement will settle all issues, and provides as follows:

* * *

d. Petitioner will pay Respondent $50,000 from his IRA or other retirement account [emphasis added].
e. Custody of the minor child Joshua Norfleet is awarded to Petitioner with liberal visitation to Respondent. The issue of child support is reserved at this time,
f. Each party is the sole owner of all real and personal property now in their individual possession.”

On April 6, 1992, a petition for rule to show cause was filed by Diana’s attorneys, alleging Jim owed Diana’s attorneys the sum of $750; Jim had only transferred $27,928.37 of the $50,000 to Diana; and Jim was $40.98 in arrears on medical expenses. According to counsel on April 7, 1992, before there could be a hearing on the petition for rule to show cause, Jim died.

On July 20, 1992, Diana, by her attorneys, filed a motion in the dissolution case, asking for the entry of a QDRO “instanter.” This motion alleged $22,071.63 of the $50,000 was still due Diana. It also alleged that Jim, at his death, had a 401(k) at Caterpillar Tractor Company. A QDRO was requested to enable Diana to obtain the $22,071.63 from Caterpillar. Notice of hearing on the motion was given to the administrator of Jim’s estate, the Caterpillar Company, and Thomas E. Griffith, guardian ad litem for Joshua in cause No. 92 — P—187 (Jim’s estate).

On August 18, 1992, Geneva Norfleet, guardian of the estate and person of Joshua Norfleet, petitioned to intervene in the dissolution proceeding and filed objections to a QDRO. The petition to intervene states that Joshua was the sole beneficiary of Jim’s 401(k) and would be adversely affected by the requested QDRO. The objections to the QDRO provided:

“1. The original Order entered February 7, 1992, does not comply with the requirements for a valid QDRO, thus, it fails to circumvent the anti-assignment proscription of 26 U.S.C. §401(a)(13). The mere filing of the Petition herein admits the foregoing. Further, the original Order provides only for an obligation to pay $50,000.00. It does not create or purport to create or require the assignment of any interest in any account, fund and specifically fails to identify the subject 401(k) plan herein. No intent or agreement to assign any interest in the 401(k) plan can be drawn from the disjunctive language, to wit: ‘or other retirement account.’ More particularly, a 401(k) plan is a deferred benefit plan.
2. JOSHUA NORFLEET’s ownership interest in the 401(k) proceeds was fixed at the time of death of JIM E. NORFLEET. JIM E. NORFLEET’s interest and participation in the 401(k) plan terminated and the proceeds therefrom properly are the property of JOSHUA NORFLEET upon JIM NORFLEET’s death.
3. This Court no longer has subject matter jurisdiction to enter any Order modifying or assigning the ownership of proceeds or otherwise encumbering or altering the disposition of said proceeds. Further, the Estate of JIM E. NORFLEET has no power to pledge or assign the proceeds for it lacks any interest in these non-probate assets.
4. No basis for the entry of a nunc pro tunc order effecting [sic] a QDRO or otherwise altering the judgment actually entered exists. No assignment occurred prior to JOSHUA NORFLEET’s ownership rights.”

The petition to intervene was allowed by docket order of August 21, 1992, and a hearing on the motion for a QDRO and objections thereto was held on the same date.

On August 25, 1992, the trial court entered a docket order denying the QDRO. The significant part of the order provides:

“There was no Qualified Domestic Relations Order entered, and there was no agreement about any lien being placed upon Mr. Norfleet’s I.R.A. or retirement accounts. At the time of his death, he apparently had an I.R.A[.] or 401-K or retirement account of approximately $40,000.00. The issue in the case is — automatically, at his death, did these monies pass to their minor son, or should the balance of the sum, $23,000.00, be paid to the Defendant before the minor receives the balance?
In reviewing the Judgment of Dissolution and the cases cited by counsel, it is the finding of the Court that the judgment, which was entered in February of 1992, basically gave the Defendant, Mrs. Norfleet, a judgment in favor of $50,000.00. There was no agreement that this judgment would be a lien on the Plaintiff’s property until the total amount was paid. Based upon the way the judgment was structured and this Court’s interpretation of the existing case law, it is the finding of the Court that the monies which Mr. Norfleet had at the time of his death passed automatically to the minor son and that there was no reservation of rights by the original Defendant, Mrs. Norfleet, in those sums. Therefore, the Defendant’s request for an entry of a Qualified Domestic Relations Order after the Plaintiff’s death shall be denied by the Court.”

Diana appeals from this order.

Qualified Domestic Relations Order

To understand the significance of Federal cases cited by the parties, it is necessary that we understand the difference between the Employee Retirement Income Security Act of 1974 (ERISA) (see 29 U.S.C. §1001 et seq. (1988)) and the Retirement Equity Act of 1984 (1984 REA) provision for a QDRO (see 29 U.S.C. § 1056(d)(3)(A) (1988)).

ERISA contains a spendthrift provision providing that “benefits provided under the [retirement] plan may not be assigned or alienated.” (29 U.S.C. § 1056(d)(1) (1988).) However, State court domestic relations orders were considered in some cases as proper exceptions to the limitations of the “may not be assigned or alienated” provision. United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States & Canada Local 198 A F L-C I O Pension Plan v. Myers (M.D. La. 1980), 488 F. Supp. 704; Operating Engineers Local No. 128 Pension Trust Fund v. Zamborsky (D. Ariz. 1979), 470 F. Supp. 1174, aff’d (9th Cir. 1981), 650 F.2d 196; Savings & Profit Sharing Fund of Sears Employees v. Gago (7th Cir. 1983), 717 F.2d 1038.

The congressional policy underlying the spendthrift provision of ERISA was to “ ‘safeguard a stream of income for pensioners (and their dependents...), even if that decision prevents others from securing relief for the wrongs done them.’ ” (Ablamis v. Roper (9th Cir. 1991), 937 F.2d 1450, 1454, quoting Guidry v. Sheet Metal Workers National Pension Fund (1990), 493 U.S. 365, 376, 107 L. Ed. 2d 782, 795, 110 S. Ct. 680, 687.) The 1984 REA was, in part, enacted to afford better protection for women dependent upon their husbands’ earnings, by requiring pension plans to provide automatic survivor benefits. See 29 U.S.C. §1055 (1988); Ablamis, 937 F.2d at 1453.

The 1984 REA amended ERISA to allow for the QDRO, but section 1056(d)(1) of title 29 of the United States Code (Code) (29 U.S.C. §1056(dXl) (1988)) provides: “Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated.” Section 1056(d)(3)(A) of title 29 of the Code provides:

“Paragraph (1) shall apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a participant pursuant to a domestic relations order, except that paragraph (1) shall not apply if the order is determined to be a qualified domestic relations order. Each pension plan shall provide for the payment of benefits in accordance with the applicable requirements of any qualified domestic relations order.” 29 U.S.C. § 1056(d)(3)(A) (1988).

Thus, a court may divide spousal rights in a qualified pension plan through the mechanism of a QDRO and award the nonemployee spouse his or her appropriate share of those benefits — but only if the domestic relations order is a “qualified” one as defined in the 1984 REA. Ablamis, 937 F.2d at 1454.

In section 401 of title 26 of the Code (26 U.S.C. §401 (1988)), tax provisions are made relating to qualified pension, profit-sharing, and stock-bonus plans. Section 401(a)(13)(A) of title 26 of the Code provides in part:

“In general. — A trust shall not constitute a qualified trust under this section unless the plan of which such trust is a part provides that benefits provided under the plan may not be assigned or alienated.” (26 U.S.C. §401(a)(13)(A) (1988).)

Section 401(aX13XB) of title 26 of the Code provides:

“Special rules for domestic relations orders. — Subparagraph (A) shall apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a participant pursuant to a domestic relations order, except that subparagraph (A) shall not apply if the order is determined to be a qualified domestic relations order.” 26 U.S.C. §401(a)(13XB) (1988).

Section 401(k) trusts (see 26 U.S.C. §401(k) (1988)) are governed by these provisions. The trial court could not, in the Norfleet dissolution proceeding, assign or alienate Jim’s 401(k), absent the use of the QDRO.

Sections 1056(d)(3XB) through (L) of title 29 of the Code provide for the coverage and required terms of a QDRO, as well as requirements of employers, including those relating to qualification challenges of court orders. Sections 1056(d)(3)(C) and (d)(3)(D) of title 29 of the Code provide:

“(C) A domestic relations order meets the requirements of this subparagraph only if such order clearly specifies—
(i) the name and the last known mailing address (if any) of the participant and the name and mailing address of each alternate payee covered by the order,
(ii) the amount or percentage of the participant’s benefits to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined,
(iii) the number of payments or period to which such order applies, and
(iv) each plan to which such order applies.
(D) A domestic relations order meets the requirements of this subparagraph only if such order—
(i) does not require a plan to provide any type or form of benefit, or any option, not otherwise provided under the plan,
(ii) does not require the plan to provide increased benefits (determined on the basis of actuarial value), and
(iii) does not require the payment of benefits to an alternate payee which are required to be paid to another alternate payee under another order previously determined to be a qualified domestic relations order.” (29 U.S.C. §§1056(d)(3)(C), (d)(3)(D) (1988).)Ill

The Norfleet final dissolution judgment of February 7, 1992, did not contain a QDRO.

Diana’s Position

Diana suggests that Illinois decisions have established that a spouse of an employee can obtain a portion of the employee’s retirement fund, regardless of the QDRO provisions, citing In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 397 N.E.2d 511, and In re Marriage of Papeck (1981), 95 Ill. App. 3d 624, 420 N.E.2d 528. Both these cases preceded the 1984 REA. Hunt held the portion of the pension plan resulting from contributions during the marriage to be marital property and should be considered in dividing marital property, pursuant to provisions of section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 503). Hunt concluded that ERISA did not prevent treating the pension plan and profit-sharing plan as marital property. Hunt, 78 Ill. App. 3d at 666, 397 N.E.2d at 521.

The Hunt decision stated that where the present value of the pension could be ascertained, the trial court could consider that value and award the pension interest to the employee spouse and give the non-employee spouse other marital property to offset his or her marital share in the interest. (Hunt, 78 Ill. App. 3d at 663, 397 N.E.2d at 519.) The Hunt decision also stated:

“In those instances where it is difficult to place a present value on the pension or profit-sharing interest due to uncertainties regarding vesting or maturation, or when the present value can be ascertained but the type, or lack, of other marital property makes it impractical or impossible to award sufficient offsetting marital property to the nonemployee spouse, then the trial court in its discretion may award each spouse an appropriate percentage of the pension to be paid ‘if, as and when’ the pension becomes payable.” Hunt, 78 Ill. App. 3d at 663, 397 N.E.2d at 519.

It is generally accepted that pension interests earned during a marriage are marital property. While the value of the interest is to be considered in dividing marital assets, a “qualified” retirement plan has been, since the 1984 REA, subject to the QDRO requirements. We emphasize not all retirement plans are “qualified.” Jim’s 401(k) was qualified.

We recognize that case law had, prior to 1984, created exceptions to the “assigned or alienated” provision of ERISA which allowed for support recoveries for children and ex-spouses. Those exceptions have been codified in section 1056(d)(3) of title 29 of the Code by the 1984 REA. While accepting the conditions of a QDRO, Diana then sets forth the following quote from Arizona Laborers, Teamsters, & Cement Masons, Local 395 Pension Trust Fund v. Nevarez (D. Ariz. 1987), 661 F. Supp. 365, 368:

“This conclusion does not mean that the judgment creditor spouses cannot ever reach their ex-spouses’ pension benefits. Nothing precludes them from going back to the Superior Court to seek an order which qualifies as a QDRO.”

She now argues she attempted to do what the Arizona Laborers decision suggested and that the trial court erred in refusing to enter an order qualifying the plan as a QDRO.

We conclude that the QDRO requirements prohibited the creation of any lien or encumbrance on Jim’s 401(k), absent a QDRO. When Jim died, no QDRO existed or had been requested. The dissolution judgment was entered more than 30 days prior to Jim’s death.

Young v. American Standard Life Insurance Co. (1947), 398 Ill. 565, 76 N.E.2d 501, is cited as authority that upon Jim’s death, Joshua, being the designated 401(k) beneficiary, became the owner of the trust, to be free from any claim of the dissolution court or the probate court. Young involved a last-minute attempt to change a beneficiary on life insurance policies and states:

“The rights of a duly appointed beneficiary under a life insurance policy are fixed by the facts existing at the time of the death of the insured and the company can do nothing thereafter to change those rights.” Young, 398 Ill. at 569, 76 N.E.2d at 503.

We know of no reason, and none has been suggested, why one named as the beneficiary of a 401(k) trust, on the death of the principal, should not be treated the same as a life insurance beneficiary.

Diana’s claim that she can seek a QDRO at any time presupposes some type of interest in the 401(k). The Federal QDRO requirement defeats this claim by only allowing encumbrances or assignments to a QDRO. In other words, no QDRO — no interest. Upon Jim’s death, all interest in the 401(k) passed to his son.

Affirmed.

McCULLOUGH and COOK, JJ., concur.


author: JUSTICE LYTTON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AUDEL N. ALVAREZ, Defendant-Appellant.
    Third District
    No. 3-92-0458
    Opinion filed April 28, 1993.
    Robert S. Burke, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Joseph Navarro, State’s Attorney, of Ottawa (John X. Breslin and Lawrence Michael Kaschak, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LYTTON

delivered the opinion of the court:

Defendant Audel N. Alvarez was indicted for unlawful possession with intent to deliver more than 500 grams of cannabis. (Ill. Rev. Stat. 1991, ch. 56V2, par. 705(e).) Prior to trial the defendant filed a motion to suppress evidence and quash arrest and, also, a motion to compel additional discovery. The motions were denied. Following a bench trial, the defendant was found guilty. The defendant now appeals, claiming that the trial judge erred in denying his discovery motion. We affirm.

The defendant’s motion to suppress evidence was filed on March 25, 1992. The motion alleged that the defendant’s car was stopped by the police on January 11, 1992, while the defendant was driving on Interstate 80 in La Salle County, Illinois; that the police conducted a search of the vehicle which resulted in the seizure of certain items, including 29 packages of cannabis; and that the police conducted the search without a warrant, probable cause or the consent of the defendant. On April 2, 1992, on its own motion, the circuit court set April 8 as the hearing date for the motion to suppress.

On April 8, 1992, the defense filed a motion to compel additional discovery. The motion alleged that the defense sought certain information and documents; that the setting of the motion to suppress for April 8 left the defense with insufficient time to subpoena the materials from the police; that the defense had conveyed a written request to the State’s Attorney’s office for the materials; and that the request had been refused. The items which the defense motion sought included, inter alia, police radio logs for the date of the defendant’s arrest and the preceding year; documents, publications, video tapes, audio tapes and other materials relied upon by officers in the field, including training documents and other information such as statistics, compiled data, parameters, indicators and similar information relating to the stopping and searching of drug suspects; and records pertaining to the stopping of vehicles upon Interstate 80 by the police. Defendant’s motion stated that the basis for the request was that “a substantial issue exists herein relating to the pretextual stop of the Defendant, and the information and documents are not only relevant but critical to a comprehensive presentation of the facts relating to said issue.”

That same day, April 8, 1992, the circuit court denied defendant’s motion to compel additional discovery. The court then held an evidentiary hearing on defendant’s motion to suppress evidence and quash arrest.

At the hearing on the motion to suppress, the defendant, Audel M. Alvarez, testified that he was driving an automobile in an eastbound direction on Interstate 80 in La Salle County, Illinois. Alvarez was stopped by police, and his car was searched. Alvarez denied that he had violated any traffic laws prior to the stop, and he denied that he had consented to the search. The defendant also testified that the police did not possess a search warrant.

On cross-examination, the defendant testified that his car was a 1983 Chevrolet Camaro. Alvarez testified that he did not understand the officer very well. However, when the officer requested his driver’s license, Alvarez handed it to the officer. Alvarez stated that the only thing he understood the officer say at the time of the stop was “Mexican” and “license plates California.” After obtaining the driver’s license, the officer went back to his car and spoke on the radio. The officer then returned to the defendant’s car, stated that the license was suspended, and told the defendant not to move. Other patrol cars arrived, the defendant was placed in the back of one car, and a police dog began walking around Alvarez’ car. After the dog had walked around, the police then went inside the car and began to search.

The defendant testified that the officer asked whether there were any drugs or weapons in the car. Alvarez stated that he didn’t know anything. He spoke to the officer in Spanish and said that drugs are bad. He denied telling the officer that he could search the car.

The defendant stated that he did not have any air fresheners hanging from his rearview mirror, but he did have a cross hanging on a chain and a saint’s medal at the base of the window.

The defense next called Thomas Karalis as a witness. Karalis stated that he is an attorney with the State Appellate Defender’s office in Ottawa. When Karalis began to testify as to an incident on March 21, 1992, the trial judge ruled his testimony irrelevant. The defense then made an offer of proof. If allowed, Karalis would have testified that on March 21, 1992, he was stopped by a police officer while driving on Interstate 80. According to Karalis, he was driving a vehicle with California plates, but he had violated no traffic laws. The officer detained Karalis’ car for about 10 or 12 minutes, issued no citations, but requested permission to search Karalis’ vehicle. When Karalis refused, he was allowed to leave. According to Karalis, the officer who stopped his vehicle was the same officer who stopped Alvarez.

After the defense rested, the State called Officer Dan Gillette to testify. Gillette testified that he is a sergeant with the Illinois State Police and, on January 11, 1992, he was training Captain Scutt of the La Salle County sheriff’s department in drug interdiction. While sitting in their vehicle in the median of Interstate 80, Gillette saw a 1983 Chevrolet Camaro with “a lot of items” hanging from the rear-view mirror. It appeared to the officer that these items obstructed the driver’s view.

Sergeant Gillette began to follow the vehicle. The driver kept looking in his rearview mirror, and the car began drifting and weaving between lanes. During the mile and a half that Gillette followed the Camaro, the car drifted into the other lane four times. After the car made an abrupt lane change between two semi trucks, the officer activated his lights and stopped the car.

The driver of the vehicle was the defendant, Audel Alvarez. The officer requested the driver’s license, and Alvarez gave it to him. Gillette explained why he stopped the car and then went back to his car and ran a radio check on the driver’s license. The driver’s license was suspended. Gillette returned to the car and saw that the driver was shaking and beads of sweat were forming on his forehead. Gillette told Alvarez that he would be issuing citations and the vehicle would be towed. The officer asked whether there were any weapons or drugs in the car. The driver stated, “No, drugs are bad, go ahead.”

Officer Gillette called for a canine unit, and a dog began scratching at the rear bumper. The dog’s handler indicated that this reflected the presence of narcotics. Gillette then informed Alvarez that the dog had indicated the presence of drugs, at which point Alvarez would not speak in English, only in Spanish.

The police then conducted an inventory search of the car prior to towing. The search and subsequent removal of the rear bumper disclosed 29 packages of a substance which field tested positive for cannabis.

On cross-examination, Officer Gillette testified that the first thing he had noticed about the defendant’s car was the California license plate. While he had previously stopped cars for obstruction of windshield, Gillette seldom issued a citation. And, once again, Gillette testified that Captain Scutt was present in the car for the purpose of receiving training on drug interdiction. Gillette also testified that it was not standard procedure in an inventory search to call for a canine unit.

On redirect examination, Gillette testified that the reasons he had called for the canine unit were the heavy scent of air freshener, which is often used to mask some other smell, the presence of a roll of duct tape, which is often used by drug couriers to wrap drugs, and the nervous behavior displayed by the driver.

The circuit court found that the police had acted in a reasonable manner and denied the defendant’s motion to suppress.

On April 22, 1992, the defendant filed a motion requesting that the circuit court reconsider its rulings on defendant’s motion to compel additional discovery and motion to suppress. Regarding the discovery motion, the defendant asserted that the information sought was relevant, since under “current prevailing law *** an arrest may not be used as a pretext to search for evidence, and the tainted evidence is excluded in order to deter deliberate police misconduct.” The circuit court denied the motion to reconsider. The defendant was then tried and convicted.

On appeal, the defendant asserts that the circuit court erred in denying his motion to compel additional discovery. The defendant claims that the police officer’s stated reasons for stopping the defendant-weaving and the presence of obstructions in the windshield— were merely a pretext for the stop. The defendant contends that the police radio logs might have demonstrated the officer’s actual reasons for stopping the defendant’s car.

We find that the trial judge did not err in denying the defendant’s discovery motion. A trial judge has broad discretion in controlling discovery. (People v. Fairbanks (1986), 141 Ill. App. 3d 909, 914, 491 N.E.2d 74.) A trial court’s discovery ruling will not be overturned unless there is a manifest abuse of discretion. Fairbanks, 141 Ill. App. 3d at 915.

A defendant’s discovery request is governed by Supreme Court Rule 412(h), which states:

“Upon a showing of materiality to the preparation of the defense, and if the request is reasonable, the court, in its discretion, may require disclosure to defense counsel of relevant material and information not covered by this rule.” 134 Ill. 2d R. 412(h).

In light of present case law regarding claims of pretextual stops and arrests, we find that the documents and items sought by the defense in this case were immaterial.

Under the pretextual arrest doctrine, evidence discovered and seized by means of a search subsequent to a pretextual arrest is inadmissible. The tainted evidence is excluded in order to deter deliberate police misconduct and prevent law enforcement officers from being rewarded for their subterfuge. People v. Anderson (1988), 169 Ill. App. 3d 289, 294, 523 N.E.2d 1034.

The seminal case for the pretextual arrest doctrine was United States v. Lefkowitz (1932), 285 U.S. 452, 76 L. Ed. 877, 52 S. Ct. 420. Therein, police officers holding a valid arrest warrant searched the defendants’ desks and wastebaskets and seized papers for use as evidence of the crimes for which the defendants were charged. The United States Supreme Court stated that “[a]n arrest may not be used as a pretext to search for evidence.” Lefkowitz, 285 U.S. at 467, 76 L. Ed. at 884, 52 S. Ct. at 424.

However, problems exist with the pretext approach. First, the language of the fourth amendment proscribes only unreasonable searches and seizures. (Scott v. United States (1978), 436 U.S. 128, 137, 56 L. Ed. 2d 168, 177, 98 S. Ct. 1717, 1723.) The primary purpose of the exclusionary rule is the deterrence of police “conduct” that violates fourth amendment rights. (Stone v. Powell (1976), 428 U.S. 465, 486, 49 L. Ed. 2d 1067, 1083, 96 S. Ct. 3037, 3048.) Thus, designed to deter unlawful “actions” by police officers, the exclusionary rule need not be applied when they act properly even while possessing improper motives. (Anderson, 169 Ill. App. 3d at 297.) Second, courts applying the pretextual arrest doctrine have been forced to inquire into the underlying intent or motivation of the police officers, to determine whether some improper subjective purpose served as the actual basis for the arrest. Unreliable and time-consuming expeditions into the motivations of officers have led to inconsistent results which sometimes penalize police accused of bad thoughts despite exhibiting constitutionally appropriate behavior. (Anderson, 169 Ill. App. 3d at 295.) One commentator has questioned whether it is within the ability of judges to “determine with any fair rate of success the uncommunicated intentions or expectations of the police officer.” Anderson, 169 Ill. App. 3d at 295, citing 2 W. LaFave, Search & Seizure §5.2(e), at 459 (2d ed. 1987).

In Anderson (169 Ill. App. 3d 289, 523 N.E.2d 1034), this court reviewed the history, scope and problematic nature of the pretextual arrest doctrine. This court considered more recent decisions, including those of the United States Supreme Court. See Maryland v. Macon (1985), 472 U.S. 463, 86 L. Ed. 2d 370, 105 S. Ct. 2778; United States v. Villamonte-Marquez (1983), 462 U.S. 579, 77 L. Ed. 2d 22, 103 S. Ct. 2573; Scott v. United States (1978), 436 U.S. 128, 56 L. Ed. 2d 168, 98 S. Ct. 1717.

In Anderson, this court concluded:

“Although the Supreme Court did not expressly renounce the pretextual arrest doctrine in the foregoing cases, it stated repeatedly that in analyzing alleged fourth amendment violations, an objective assessment of the officer’s actions, not his state of mind, is what matters. The pretext approach clearly is not the prevailing approach of the United States Supreme Court in determining whether a defendant’s fourth amendment rights have been violated. Rather, *** the Supreme Court has repeatedly ruled that when police officers do no more than they are objectively authorized and legally permitted to do, their motives in doing so are irrelevant and not subject to inquiry, and the results of their investigations are not to be suppressed.” Anderson, 169 Ill. App. 3d at 297.

Since Anderson, the clear trend in Illinois Appellate Court decisions is to determine whether the stop is objectively reasonable. If it is, then the search is not invalidated solely because the officer acted out of an improper or dual motivation. People v. Perry (1990), 204 Ill. App. 3d 782, 786, 562 N.E.2d 618, citing People v. Guerrieri (1990), 194 Ill. App. 3d 497, 501-02, 551 N.E.2d 767; People v. Fenner (1989), 191 Ill. App. 3d 801, 807, 548 N.E.2d 147; People v. Hattery (1989), 183 Ill. App. 3d 785, 813-19, 539 N.E.2d 368.

In People v. Mendoza (1992), 234 Ill. App. 3d 826, 599 N.E.2d 1375, the Illinois Appellate Court faced a factual situation similar to that presented here. A police officer stopped an automobile that had Texas license plates and occupants who were Hispanic. The officer testified that she initially stopped the car because the driver’s view was obstructed by fuzzy dice and several other items hanging from the rearview mirror. After stopping the vehicle and issuing a warning ticket for driving with an obstructed view, the officer asked if she could search the vehicle. The driver consented to a search of the vehicle and, following an extensive search which included removal of the gas tank, 15 pounds of marijuana were discovered. After the circuit court granted Mendoza’s motion to suppress, the State appealed. Mendoza, 234 Ill. App. 3d at 828-33.

The appellate court reversed the circuit court’s order of suppression. The appellate court acknowledged that where the purpose of a traffic stop is a pretext for a search or detention rather than for a traffic violation, such a search or detention is improper. (Mendoza, 234 Ill. App. 3d at 837.) Nonetheless, the appellate court stated:

“In determining whether a traffic stop is pretextual, it is now well settled that it is the objective reasonableness of the stop which must be examined, rather than the subjective motivation of the officer. If the stop is objectively reasonable, it is not invalidated solely because the officer acted out of an improper or dual motivation.” (Mendoza, 234 Ill. App. 3d at 837, citing People v. Perry (1990), 204 Ill. App. 3d 782, 786, 562 N.E.2d 618.)

In light of the presence of fuzzy dice and other items hanging from the rearview mirror, which materially obstructed the driver’s view in the opinion of the officer, the stop and subsequent search were proper.

Here, as in Mendoza, the initial stop in this case was justified upon the presence of objects hanging from the rearview mirror which materially obstructed the driver’s view. In this case, the prosecution also presented testimony that the defendant’s car repeatedly weaved and drifted between lanes. Apparently the trial judge chose to believe this testimony. “[0]n a motion to suppress, it is the trial court’s duty to resolve conflicting evidence and determine the credibility of the witnesses.” People v. Wheeler (1992), 226 Ill. App. 3d 1092, 1096, 590 N.E.2d 552.

Since the police had objectively reasonable bases for stopping the defendant’s car, the trial judge properly denied the defendant’s discovery requests that were designed to question the officer’s subjective motivations in making the stop.

Finally, we grant the State’s request that the sum of $50 be assessed against the defendant as the statutory costs of this appeal. However, inasmuch as oral argument was waived, no $25-per diem costs will be assessed. Ill. Rev. Stat. 1991, ch. 34, par. 4 — 2002(a); People v. Johnson (1990), 199 Ill. App. 3d 577, 585, 557 N.E.2d 446.

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

Affirmed.

SLATER and STOUDER, JJ., concur.


author: JUSTICE MAAG

text:
    ROBERT BOETTCHER, Plaintiff-Appellee, v. FOURNIE FARMS, INC., Defendant-Appellant and Counterplaintiff (Bi-State Cold Storage, Inc., Defendant and Counterdefendant).
    Fifth District
    No. 5—92—0136
    Opinion filed April 26, 1993.

      LeFevre, Zeman, Oldfield & Schwarm Law Group, Ltd., of Vandalia (Larry L. LeFevre, of counsel), for appellant.
    Ted E. Barylske, of Alton, for appellee.
   JUSTICE MAAG

delivered the opinion of the court:

The plaintiff, Robert Boettcher, brought suit against the defendants, Fournie Farms, Inc., and Bi-State Cold Storage, Inc., in November of 1986. Boettcher claimed that he sold his entire horseradish crop to Fournie and, pursuant to Fournie’s instructions, delivered the crop to Bi-State for temporary storage. While the crop was in storage at Bi-State, the horseradish was damaged. When Fournie and Bi-State failed to pay for the damaged horseradish, Boettcher filed this action.

At trial, Boettcher sought $22,835 in damages from the defendants. The jury returned a verdict against both defendants in the amount requested, and judgment was entered on the verdict. The post-trial motions were denied. Only Fournie appeals from the judgment.

On appeal, Fournie raises the following issues:

1. Did the trial court err in refusing the admission of statements made by Boettcher to the insurance carrier for Bi-State wherein Boettcher claimed to be the owner of the horseradish at the time it was damaged?
2. Did the trial court err in refusing to grant a new trial based upon false answers to discovery by Boettcher, the false nature of which was not discovered until after the trial?

We answer both questions in the affirmative and reverse and remand for a new trial.

The record reveals that Boettcher and Fournie are growers of horseradish. The parties began doing business together sometime between 1980 and 1982. Boettcher testified at trial that he would sell his crop to Foumie, place the roots in the bags provided by Fournie, and deliver the bagged roots to codefendant, Bi-State Cold Storage. The bagged roots would be put in Fournie’s account at Bi-State.

Boettcher testified that in October of 1986, he contacted Robert Fournie of Foumie Farms and told him that his crop was ready to harvest. Boettcher claims that Fournie told him to take the crop to Bi-State after harvest. The horseradish was then delivered to Bi-State and put in Fournie’s account.

In January of 1987, Boettcher asked Robert Fournie about the money due for the horseradish, and Fournie stated that he had not been paid by the grinders. Boettcher claims he first learned of a problem with the 1986 horseradish crop in March of 1988.

Robert Fournie testified at trial that he is a broker of horseradish, and that he never agreed at any time to purchase Boettcher’s entire crop. Fournie admitted that pursuant to the standard practice and custom, he provided strings and bags to package the horseradish. According to Fournie, Boettcher would be paid after the crop was sold to others and the money was collected. He explained that Boettcher’s horseradish had been placed in the name of Fournie Farms while in the cold storage to facilitate removal of the crop when it needed to be shipped to a buyer. Fournie stated that he learned the horseradish had been frozen and, therefore, was ruined and unsaleable in December of 1986.

One of the main issues in this case was the question of whether Boettcher or Fournie owned the horseradish at the time it was damaged. During the course of discovery, Fournie tendered the following interrogatory to Boettcher:

“9. Who on behalf of Bi-State Storage, Inc. admitted to you that its equipment malfunctioned, that the corporation had no insurance, and that the corporation had not paid Fournie Farms, Inc.?”

Plaintiff under oath answered the interrogatory on June 14, 1991. A portion of the answer stated:

“Plaintiffs contacted Bi-State’s insurance company, American Empire Surplus Lines, regarding the incident and were sent the attached letter in return ***.”

The letter attached to the answers to interrogatories was dated February 15, 1988, and was sent from Bi-State’s insurer addressed to Boettcher as claimant. The letter informed Boettcher that his claim for the horseradish ruined while stored at Bi-State was denied because the claim was excluded under the terms of the coverage.

Thereafter, Fournie served additional interrogatories on Boettcher, including:

“2. If you have made any claim against any insurance company for the loss which is the subject matter of your Amended Complaint, state the following:

A. The name of the insurance company;
B. Each policy number;
C. The effective date of each policy;
D. The name and address of insurance adjuster or claims agent;
E. If the claim was denied, state the basis for the denial of the claim;
F. Identify and give the location of any documents, including witness statements, objects and tangible things submitted to the insurance company.”

This interrogatory was answered under oath on October 30, 1991, stating: “No claims made.”

Fournie asked for production of the following documents:

“1. Any and all insurance policies for which Robert Boettcher has made a claim for his damages as set forth in the Amended Complaint ***.
2. All correspondence or other writings to or from any such insurance company.
3. Any other documents, including witness statements, objects and tangible things which may have been submitted to or received by such insurance company or companies.”

The notice of compliance filed by Boettcher on November 4, 1991, responded to each of these requests with “n/a.”

Fournie attempted to present evidence during the trial concerning ownership of the ruined horseradish by offering evidence of the claim Boettcher made with Bi-State’s insurance carrier. When this evidence was objected to, Fournie made an offer of proof outside the presence of the jury.

It was revealed, during the offer of proof, that Boettcher had contacted Bi-State’s insurer regarding the horseradish stored in Bi-State’s facility. Boettcher, as a claimant, received a letter dated February 15, 1988, from Bi-State’s insurer denying the claim. It was also shown during the offer of proof that Boettcher had denied making any insurance claims for the horseradish in his answers to interrogatories filed November 4, 1991. Fournie’s counsel stated that he had a witness from Bi-State’s insurer who would testify that the carrier had been contacted by Boettcher for the loss of the ruined horseradish and that when Boettcher made his claim he stated that he owned the horseradish. The trial court denied the offer of proof ruling that there would be no reference to insurance.

During the trial, Fournie’s attorney observed Boettcher reading a letter from Country Companies Insurance Company. As a result of that observation, subsequent to the trial, Country Companies was contacted and it was learned that Boettcher had made a claim for the ruined horseradish under his farm owner’s insurance policy. At the hearing on Fournie’s post-trial motion, a representative of Country Companies testified that Boettcher had a farm owner’s policy effective March 13, 1986, through March 13, 1987. The policy covered farm personal property. On February 22, 1988, Boettcher called in a claim stating that he had suffered the loss of his horseradish at Bi-State because “ammonia leaked into storage room and spoiled all the horseradish.”

In his statement to Country Companies, Boettcher acknowledged that he placed the horseradish in Robert Fournie’s name at Bi-State “on consignment.” Boettcher also stated that he had learned of the loss about a year ago. The statement was dated March of 1988.

The first issue concerns the admissibility of the evidence regarding Boettcher’s claim filed with Bi-State’s insurance carrier. Fournie asserted at trial that this evidence was proper and should be admitted to impeach Boettcher on the issue of when Boettcher learned that the horseradish was damaged and to show that Boettcher stated to the insurance adjuster that it was his horseradish.

Boettcher responded that evidence of insurance is inadmissible, and that even if it is admissible for a limited purpose, the prejudicial effect outweighed the probative value. He also claims in this court that the communication with the insurer is privileged.

The trial court ruled that no evidence of insurance would be allowed. Further, evidence of the claim of ownership was barred as irrelevant. The trial court did allow the adjuster, without mention of the circumstances and without mentioning his employer, to testify that in January or February 1988 Boettcher had told him the horseradish was damaged.

While not admissible to show fault, the existence of insurance may be shown in connection with issues such as agency, ownership, control, bias, or prejudice of a witness. Conover v. Smith (1974), 20 Ill. App. 3d 258, 314 N.E.2d 638; Pagano v. Leisner (1955), 5 Ill. App. 2d 223,125 N.E.2d 301.

The central issue in the case before us concerned the ownership of the ruined horseradish. At trial, the testimony of the parties was conflicting. Boettcher claimed that he had sold his crop to Fournie prior to storage, and Fournie asserted that the crop belonged to Boettcher. Foumie claimed to be a mere broker. The admissions to the Bi-State insurance adjuster were probative on the issue of ownership. It was the jury’s function to determine the weight these admissions deserved.

Further, we fail to see how the mention of the claim made with Bi-State’s carrier could have prejudiced anyone. The claim was denied, and none of the parties received an insurance payment.

Too often, courts and counsel raise fears of prejudice if the word “insurance” is even mentioned. In fact, the existence of an insured status or the information contained in insurance applications and claims is often highly probative of issues in a case. With proper limiting instructions and if offered for a purpose other than to show fault, evidence of this type may be admissible.

With reference to the issue of privilege, Boettcher relies on the case of Chavez v. Watts (1987), 161 Ill. App. 3d 664, 515 N.E.2d 146, which held that communications between an insured and his insurer fall within the attorney-client privilege. The court in Chavez relied upon a line of cases which followed the holding of our supreme court in People v. Ryan (1964), 30 Ill. 2d 456, 197 N.E.2d 15.

Clearly, confidential communications made by a client to his attorney are privileged, as are communications made to representatives of the attorney such as paralegals, secretaries, file clerks, or investigators employed by the attorney. (People v. Knippenberg (1977), 66 Ill. 2d 276, 362 N.E.2d 681.) Our supreme court in People v. Ryan (1964), 30 Ill. 2d 456, 197 N.E.2d 15, held that communications between an insured and insurer, where the insurer is under a duty to defend, are privileged. The rationale behind this privilege was explained as follows:

“[B]y the terms of the common liability insurance contract, the insured effectively delegates to the insurer the selection of an attorney and the conduct of the defense of any civil litigation. The insured is ordinarily not represented by counsel of his own choosing either at the time of making the communication or during the course of litigation. Under such circumstances we believe that the insured may properly assume that the communication is made to the insurer as an agent for the dominant purpose of transmitting it to an attorney for the protection of the interests of the insured.” Ryan, 30 Ill. 2d at 460-61, 197 N.E.2d at 17.

Boettcher’s claim of privilege is without merit. In the case before us, Boettcher filed a claim. The insurer had no duty to defend. The insurer was not acting as an agent or representative of an attorney hired by the insurer to protect the interests of Boettcher. The evidence was not privileged.

The second contention of error alleges that the trial court erred in refusing to grant a new trial premised upon Boettcher’s failure to comply with the rules of discovery. Boettcher argues that any failure to comply with the rules of discovery was not intentional and was caused by confusion or misunderstanding. It is Boettcher’s contention that, notwithstanding his false answers to discovery, Fournie had knowledge of the claims made to the two insurers and, therefore, the trial court did not err in refusing to grant a new trial premised upon the violation of the rules of discovery. He also asserts that the claim he made with his own carrier is privileged and constitutes hearsay. We disagree.

Counsel for Boettcher asserted at oral argument that Fournie had knowledge prior to trial of the claims made against Bi-State’s insurer and his own insurer, Country Companies. The record supports this assertion with respect to the claim against Bi-State’s insurer. There is no record support for the claim that Fournie knew of the claim Boettcher made with Country Companies, his own insurer. Thus, we will not consider this second contention. See Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)).

In the case before us, there is no doubt that Boettcher failed or refused to reveal in discovery that he had made a claim with his own insurance carrier. He gave false answers to an interrogatory under oath and secreted evidence damaging to his case. The rules of discovery were clearly violated. We cannot condemn too severely this conduct in the discovery procedure, nor can we condone the arguments advanced by Boettcher concerning the same.

A reading of the interrogatory directed to Boettcher belies his explanation of confusion or misunderstanding. There is nothing confusing or technical about “[I]f you have made any claim against any insurance company for the loss which is the subject matter of your Amended Complaint, state *** [t]he name of the insurance company ***.” Further, it is untenable for Boettcher to contend that Fournie’s alleged knowledge of the insurance claims filed, in some fashion, excuses or renders harmless the violation of the rules of discovery. The information withheld was material and probative to the central issue of the case, the ownership of the horseradish.

Discovery is not a tactical game to be used to obstruct or harass the opposing litigant. (Williams v. A.E. Staley Manufacturing Co. (1981), 83 Ill. 2d 559, 564-66, 416 N.E.2d 252, 256.) Our discovery rules require full and complete disclosure in order to achieve the ultimate goal of a speedy, efficient, and just resolution of cases. (Supreme Court Rule 219(c) (134 Ill. 2d R. 219(c)).) The discovery rules are designed to further this goal by improving the process used to obtain the essential ingredient of justice — truth. Campen v. Executive House Hotel, Inc. (1982), 105 Ill. App. 3d 576, 588, 434 N.E.2d 511, 519.

In Buehler v. Whalen (1977), 70 Ill. 2d 51, 374 N.E.2d 460, our supreme court instructed us that half-truths are equivalent to outright lies and “fractional disclosure” is not the disclosure contemplated by our discovery rules. (70 Ill. 2d at 67-68, 374 N.E.2d at 467-68.) “[Hjalf-truths *** have the effect of affirmative concealment, since they imply that there is no information or evidence to be sought.” Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 282, 433 N.E.2d 253, 257.

“[0]ur discovery procedures are meaningless unless a violation entails a penalty proportionate to the gravity of the violation. Discovery for all parties will not be effective unless trial courts do not countenance violations, and unhesitantly impose sanctions proportionate to the circumstances.” (Buehler, 70 Ill. 2d at 67, 374 N.E.2d at 467.) Unless there are appropriate sanctions for the refusal or failure to comply with discovery rules, many litigants will fail to fully and accurately comply. Campen, 105 Ill. App. 3d at 588, 434 N.E.2d at 519.

In Buehler, the court found that the sanction of contempt for the refusal or failure to comply with the rules of discovery was not an appropriate sanction as the court feared that an opposing litigant would be forced to trial without truth. This is the exact situation which occurred in the instant case. We note that at a minimum it is proper to grant Fournie a new trial, and even that relief, with the time and money involved, is sorely inadequate.

Whether omissions in discovery are intentional or inadvertent, this court will neither condone nor tolerate false, incomplete, or inaccurate discovery. Parties should be aware that all of the remedies under Supreme Court Rule 219 are available to both trial courts and this court pursuant to Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366(aX5)). Trial courts should not be hesitant, and we will not be hesitant, to provide remedies under Supreme Court Rule 219, if requested.

Unfortunately, motions alleging a wrongful failure to comply with discovery rules have become common in our trial courts. Some attorneys and their clients rely upon hypertechnical interpretations of discovery requests to withhold information. More frequently, a halfhearted effort is made to determine accurate answers to the question posed. Clients frequently are not made aware of the obligation to give full and complete answers. “Full Disclosure Required” as stated in Supreme Court Rule 201(b)(1) means just that. 134 Ill. 2d R. 201(b)(1).

It is the obligation of counsel to impress on their clients, and to remain mindful themselves, that while the compliance contemplated by our discovery rules may require the disclosure of facts damaging to the answering party’s case, nothing less than full compliance is satisfactory. A “catch me if you can” attitude is not only unacceptable, but intolerable.

With respect to the claim of privilege, our earlier discussion is fully applicable to the claim Boettcher made with his own carrier. It is not privileged.

Finally, Boettcher claims the statements he allegedly made as reflected in the Country Companies file constituted hearsay and are not within the business-records exception to the hearsay rule. We disagree. Supreme Court Rule 236 provides: A proper foundation was made at the hearing on the post-trial motion, and the Country Companies records were properly admitted. (Amos v. Norfolk & Western Ry. Co. (1989), 191 Ill. App. 3d 637, 548 N.E.2d 96.) In any event, because the existence of the claim was wrongfully concealed, we believe that a full opportunity to discover the facts surrounding the claim was denied to Fournie. Prior to the retrial of this case, Fournie should have the opportunity to fully discover this matter.

“Any writing or record, whether in the form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record ***. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility ***.” (134 Ill. 2d R. 236(a).)

Defendant’s request for a new trial is allowed. Accordingly, the judgment of the circuit court is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

CHAPMAN, P.J., and LEWIS, J., concur.