text:
      In re MARRIAGE OF MICHELE M. BURKE, Petitioner-Appellee, and FRANCIS D. BURKE, Respondent-Appellant.
    Second District
    No. 2-88-1245
    Opinion filed July 7, 1989.

      David L. Martenson, of Martenson & Associates, of Rockford, for appellant.
    Cheri N. Greenlee, of Curtis D. Worden, Ltd., of Rockford, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Respondent, Francis D. Burke, filed a petition to terminate the joint-custody-arrangement provision of the judgment of dissolution of marriage entered on April 22, 1986. Physical custody of respondent’s two minor children, Daniel (born June 26, 1979) and Aaron (bom April 19, 1974), was to remain with the wife, Michele M. Burke. On March 3, 1987, the husband filed a petition to modify the custody of the minor children, seeking to relocate them to his residence in Wisconsin. He brought his petition pursuant to section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1985, ch. 40, par. 610(b)). On April 3, 1987, the wife filed a counter-petition to modify the prior custody order and to award her sole custody of the minor children.

After a hearing, the trial court denied both petitions. The husband appeals, arguing that it was error for the trial court to require him to show, by clear and convincing evidence, that there was a change in circumstances and that the only overriding issue was the best interest of the children where both parties agreed to terminate joint custody. For the reasons discussed below, we affirm the judgment of the trial court.

Initially, we note that the appellant has failed to provide a satisfactory and complete appendix to his brief as required by Supreme Court Rule 342(a) (122 Ill. 2d R. 342(a)). Apparently, due to appellant's ignorance of the precise scope of the rule, the appendix fails to include the filing or entry dates for each item in the record and the nature of each document or order, as well as the appropriate page references thereto despite the specifications in our order in this case dated April 6, 1989. While we have the inherent authority to dismiss this appeal for noncompliance with the rules, we will proceed to consider the merits in view of the simple facts presented. (See Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 79.) Despite the failure of appellee to supply a brief, we also consider the merits of this appeal within the guidelines of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

The sole issue on appeal is whether the petitioner, after requesting a termination or modification of a prior joint-custody order and where a counterpetition was also filed, must prove a change of circumstances by clear and convincing evidence. Section 610(b) of the Act states:

“[T]he court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, or in the case of a joint custody arrangement that a change has occurred in the circumstances of the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child. In the case of joint custody, if the parties agree to a termination of a joint custody arrangement, the court shall so terminate the joint custody and make any modification which is in the child’s best interest. The court shall state in its decision specific findings of fact in support of its modification or termination of joint custody if either parent opposes the modification or termination.” Ill. Rev. Stat. 1985, ch. 40, par. 610(b).

In the present case, the trial court found that the husband was required to show, by clear and convincing evidence, that (1) a change had occurred in the circumstances of the children or either parent since the prior judgment was entered, and (2) that a modification was necessary for the best interest of the children. The husband argues that, since both he and his wife filed petitions seeking sole custody, there was in effect an agreement to terminate the joint custody; therefore, he was not required to show by clear and convincing evidence that a substantial change in circumstances had occurred. The husband relies on In re Marriage of Lovejoy (1987), 158 Ill. App. 3d 1, in which the Appellate Court for the Third District determined, without analyzing the purposes of section 610(b) of the Act, that a father was not required to show that a change of circumstances had occurred where the mother had filed a counterpetition seeking sole custody of their child. (158 Ill. App. 3d at 3.) The Lovejoy court found that the counterpetition amounted to an agreement to terminate the prior joint-custody agreement. However, the court also determined that there was sufficient evidence to show a change in circumstances. (158 Ill. App. 3d at 3.) The Lovejoy court apparently focused on the second sentence of section 610(b), which states that, in the case of a joint custody, “if the parties agree to a termination of a joint custody arrangement, the court shall so terminate the joint custody and make any modification which is in the child’s best interest.” Ill. Rev. Stat. 1985, ch. 40, par. 610(b).

We believe that, although the Lovejoy interpretation is plausible, it disregards the intent and effect of the legislature’s repeal of section 603.1 of the Act, which formerly provided for the award of joint custody only when both parties agreed to it. (Ill. Rev. Stat. 1983, ch. 40, par. 603.1, repealed by Pub. Act 84 — 795, §2, eff. Jan. 1, 1986.) Moreover, the Lovejoy interpretation disregards the higher burden of proof imposed by the first sentence of section 610(b), which appears to be applicable in all cases where modification of a prior custody judgment is sought whether there was a joint- or single-parent custody arrangement. (See In re Marriage of Jones (1987), 160 Ill. App. 3d 593, 597, citing In re Marriage of Kartholl (1986), 143 Ill. App. 3d 228.) The Jones court stated:

“It would strain the imagination to find in that agreed-to provision an intent to waive the statutory burden of proof, as the father argues we should. We conclude that the trial court did not err in using a ‘clear and convincing’ standard of proof in this case.” (Jones, 160 Ill. App. 3d at 597.)

Admittedly, in Jones, there was no counterpetition involved. But that does not alter our opinion that the burden of proof applies in all cases where a modification of a custody agreement is sought. Our reasoning will be more fully explained below.

Historically, joint custody has not always received enthusiastic approval either by the legislature or by the courts. (See Abraham, An Interpretation of Illinois’ New Joint Custody Amendments, 75 Ill. B.J. 332, 333 (1987); In re Marriage of Manuele (1982), 107 Ill. App. 3d 1090, 1094 (joint custody should be rarely awarded).) In 1982, the Illinois legislature passed the first joint-custody law (Pub. Act 82— 1002, eff. Sept. 17, 1982), which became section 603.1 of the Act (Ill. Rev. Stat. 1983, ch. 40, par. 603.1). That law also amended section 610(b) to provide for the termination and modification of joint custody upon the agreement of both parties, adding the sentence pertaining to the termination of joint-custody agreements which is the subject of this appeal (the second sentence). Under the provisions of the first joint-custody law, the trial court could not impose joint custody upon the parties without their consent. Therefore, it was logical to require the trial court to summarily terminate a joint-custody arrangement where both parties challenged the prior arrangement. However, Public Act 84 — 795, section 2, effective January 1, 1986, repealed section 603.1 and replaced it with section 602.1 (Ill. Rev. Stat. 1985, ch. 40, par. 602.1), which now provides that, on its own motion, the trial court may award joint custody, even over the objections of either party, if such an award is in the best interests of the child. (See Ill. Ann. Stat., ch. 40, par. 602.1, Supplement to Historical and Practice Notes, at 32 (Smith-Hurd Supp. 1989).) Thus, while the 1982 statute allowed a parental veto over joint custody immune to judicial discretion, the 1986 statute recognizes that the trial court may impose joint custody in appropriate cases. Despite the legislature’s repeal of section 603.1 allowing for joint-custody awards only by agreement, the corresponding provision for the termination of joint custody by agreement of the parties found in section 610(b) was not amended or deleted. Apparently, this was an oversight.

The rules of statutory construction require this court to determine and follow the intent of the legislature’s acts. (Carey v. Elrod (1971), 49 Ill. 2d 464, 471.) It is a cardinal rule of construction that the intent and meaning of a statute are to be determined from the entire statute and each section and provision should be construed in connection with every other part or section. (Orbach v. Axelrod (1981), 100 Ill. App. 3d 973, 977-78, citing Huckaba v. Cox (1958), 14 Ill. 2d 126, 131.) In addition, all the sections of the statute are to be construed together in the light of the general purpose and plan, the evil intended to be remedied, and the goal to be obtained; if the language is susceptible of more than one construction, the statute should receive the construction that will effect its purpose rather than defeat it. (Orbach, 100 Ill. App. 3d at 977-78.) Moreover, the consequences resulting from various constructions of an act must also be taken into consideration, and the court should select the construction which leads to a logical result and avoid the construction which the legislature could not have contemplated. Orbach, 100 Ill. App. 3d at 978.

Where two statutes are irreconcilable, the one which was more recently adopted will abrogate the earlier to the extent that they are inconsistent. (Union National Bank & Trust Co. v. Board of Supervisors (1978), 65 Ill. App. 3d 1004, 1007-08, citing Johnson v. State Electoral Board (1972), 53 Ill. 2d 256, 259.) Furthermore, an implied repeal results when a statute is enacted which cannot be harmonized with the terms and effect of an earlier act. In these situations, the later expression will prevail since it cannot be presumed that the legislature intended to enact laws which are contradictory. People ex rel. City of Salem v. McMackin (1972), 53 Ill. 2d 347, 363.

We find that such contradiction exists here. Since the new joint-custody provisions found in section 602.1 of the Act expressly grant the trial court broad discretion to impose joint custody in the best interests of the child even over the objections of the parties, the summary termination of joint custody upon the petition of parties who agree to such a termination is clearly in conflict with the intent and purposes of section 602.1 of the Act. The intent of the legislature to prefer custodial arrangements which maximize the involvement of both parents in the welfare of the child is manifested in section 602(c) of the Act, which states:

“The court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child. However, such presumption shall not be construed as a presumption that an order awarding joint custody is in the best interests of the child.” Ill. Rev. Stat. 1985, ch. 40, par. 602(c) (eff. Jan. 1,1986).

It would seem illogical that the legislature would grant the trial court broad discretion in awarding joint custody on one hand, while, on the other hand, the legislature would require the court to terminate its prior custody order merely upon the filing of a petition and counterpetition attacking the prior order and without the burden of showing, by clear and convincing evidence, that there is a material change in circumstances and that the modification is necessary to serve the best interests of the child.

We believe that the repeal of section 603.1 of the Act and the enactment into law of section 602.1 of the Act rendered nugatory the second sentence of section 610(b); an implied repeal of that sentence has resulted. This result is supported by the overall policy underlying section 610(b) which is to favor the finality of child-custody judgments and to make modifications more difficult. (In re Marriage of Wechselberger (1983), 115 Ill. App. 3d 779, 786.) The effect of this section is to create a legislative presumption in favor of the present custodial arrangement, thereby promoting the stability and continuity of the child’s custodial and environmental relationship which should not be lightly overturned. (In re Custody of Harne (1979), 77 Ill. 2d 414, 420-21; Wechselberger, 115 Ill. App. 3d at 786.) In furtherance of this policy, section 610(b) was amended by Public Act 82 — 715, effective July 1, 1982, to prohibit the modification of a custody judgment unless the court finds “by clear and convincing evidence” that a change has occurred in the circumstances of the child or his or her custodian and that modification is necessary to serve the best interests of the child. This finding is to be based on facts that have arisen since the prior judgment or facts that were unknown to the court at the time of entry of the prior judgment. All elements must be met. (In re Marriage ofKartholl (1986), 143 Ill. App. 3d 228, 231.) In addition, the amended section 610(b) requires a more exacting level or burden of proof than did prior law. Formerly, the court employed the preponderance of the evidence standard normally used in civil matters. Wechselberger, 115 Ill. App. 3d at 785-86.

Even if we did not find that the second sentence of section 610(b) regarding agreed terminations of joint custody had been rendered nugatory by implied repeal, we would nonetheless refuse to find that the joint-custody-termination procedure is an exception to the general rule established in the first sentence. The first sentence prohibits the modification of any prior custody judgment unless the trial court makes the required findings based on clear and convincing evidence shown by the petitioner. To the extent that our determination on this point is in conflict with In re Marriage of Lovejoy (1987), 158 Ill. App. 3d 1, we decline to follow the reasoning in that opinion.

We therefore hold that (1) the second sentence of section 610(b) of the Act regarding the agreed termination of a prior joint-custody arrangement is impliedly repealed by the legislative amendments discussed above, and (2) in all cases, parties seeking modification of a prior custody order must make the required showings using the “clear and convincing” burden of proof.

In the case at bar, the trial court reasoned that the repeal of section 603.1 of the Act and the enactment of section 602.1 of that act altered the statutory scheme of joint custody so that the trial court was now required to modify a prior joint-custody arrangement only when the petitioner showed, by clear and convincing evidence, that a change had occurred in the circumstances affecting the children or either parent and that the modification was necessary for the best interests of the children. The trial court found that the father’s move to Wisconsin was not a material change in circumstances and that it was in the best interests of the children to remain in a joint-custody arrangement so that they could benefit from maintaining their present relationship with both parents. Furthermore, the court’s findings were based, in part, upon the testimony of expert witnesses. The trial court ultimately concluded that neither party made the required showings by clear and convincing evidence. We believe that the trial court applied the correct standard of proof, and we therefore affirm.

The judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

LINDBERG and DUNN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES J. STEVENS, Defendant-Appellee.
    Second District
    No. 2-88-0849
    Opinion filed July 7, 1989.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Steven A. Greenberg, Ltd., of Chicago, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Pursuant to Supreme Court Rule 604(a) (107 Ill. 2d R. 604(a)), the State appeals from the dismissal of its information against defendant, James Stevens. The trial court dismissed the charge against defendant because it found that the State violated defendant’s right to a speedy trial under section 103 — 5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(b)). On appeal, the State contends that the trial court erred in dismissing its information because the entry of a nolle prosequi prior to defendant’s demand for a speedy trial rendered the 160-day period of section 103 — 5(b) inapplicable. We reverse and remand.

On October 16, 1986, defendant was charged by complaint in case No. 86 — CM—5432 with the offense of theft in violation of section 16— 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 16 — 1(a)(1)). On September 15, 1987, defendant’s case was called for trial. After defendant answered that he was ready to proceed, the State moved for a continuance because it was unable to procure a material witness. Noting that the case had been called numerous times, the trial court denied the State’s motion. The State next moved for leave to amend the complaint asserting that defendant should have been charged under section 16 — 1(d)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 16 — 1(d)(1)). The trial court denied the State’s motion to amend. After the State moved to nol-pros the charge, defendant made his demand for a speedy trial. The trial court then granted the State’s motion for a nolle prosequi.

On September 22, 1987, defendant was charged by information in case No. 87 — CM—4950 with the same offense of theft as had been nolprossed on September 15, 1987. The record reflects that on April 4, 1988, defendant was placed on a $1,000 bail bond on this charge. On May 3, 1988, defendant filed a motion to dismiss which alleged that his rights under the speedy-trial provisions of section 103 — 5(b) (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(b)) had been violated. On June 3, 1988, the trial court conducted a hearing on defendant’s motion. At the hearing, defendant argued that the charges filed in cases Nos. 86 — CM— 5432 and 87 — CM—4950 were based on the same occurrence. Defendant noted that although his demand for a speedy trial was made after the State nol-prossed case No. 86 — CM—5432, the granting of the nolle prosequi did not toll the provisions of section 103 — 5(b). Defendant maintained that because more than 160 days had passed since his September 15 demand for speedy trial, his rights had been violated and the September 22 information should be dismissed. The State contended that the nolle prosequi tolled the speedy-trial provisions of section 103 — 5(b).

On June 30, 1988, the trial court ruled on defendant’s motion. Relying on People v. Rodgers (1982), 106 Ill. App. 3d 741, the trial court found that the State’s nolle prosequi of case No. 86 — CM—5432 did not toll the 160-day period of section 103 — 5(b). At a hearing on its motion to reconsider the June 30 ruling, the State argued that our decision in People v. Eblin (1983), 114 Ill. App. 3d 891, distinguished Rodgers. According to the State, Eblin impliedly held that a nolle prosequi, as opposed to the striking of a charge with leave to reinstate, tolled the 160-day period of section 103 — 5(b). The State therefore concluded that because the charge in case No. 86 — CM—5432 was nol-prossed and defendant was released from his bail obligation, the speedy-trial provisions of section 103 — 5(b) were inapplicable with respect to the September 22 information. The trial court denied the State’s motion to reconsider, and the State filed a timely notice of appeal.

The State’s sole contention on appeal is that since the charge against defendant in case No. 86 — CM—5432 was nol-prossed and defendant was not on bail or recognizance, the 160-day period for a speedy trial did not begin to run until April 4, 1988, when defendant was placed on bail for the September 22 information.

Section 103 — 5(b) states:

“Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant, by an examination for fitness ordered pursuant to Section 104— 13 of this Act, by a fitness hearing, by an adjudication of unfitness to stand trial, by a continuance allowed pursuant to Section 114 — 4 of this Act after a court’s determination of the defendant’s physical incapacity for trial, or by an interlocutory appeal.” (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(b).)

To invoke the 160-day period, the accused must be out on bail or recognizance and must demand trial; however, such demand is meaningless if made at a time when no charges are pending against the accused. People v. Freedman (1987), 155 Ill. App. 3d 469, 474.

In People v. Rodgers (1982), 106 Ill. App. 3d 741, the case relied upon by the trial court, we were presented with the issue of whether the granting of a motion to strike a charge with leave to reinstate tolled the 160-day period of section 103 — 5(b). We concluded that the striking of a charge with leave to reinstate did not toll the 160-day period because the proceedings against the defendant had not been terminated. Rodgers, 106 Ill. App. 3d at 745.

In People v. Eblin (1983), 114 Ill. App. 3d 891, we addressed the question of whether a defendant, who appears to answer a criminal complaint pursuant to a notice to appear yet is not required to post bail or recognizance, can invoke the speedy-trial provisions of section 103— 5(b). In answering that question in the negative, we stated that a notice to appear was not the equivalent of bail or recognizance, and therefore the defendant could not avail himself of the speedy-trial provisions. Eblin, 114 Ill. App. 3d at 892-94.

In the instant case, we are called upon to determine the effect of a nolle prosequi on the speedy-trial provisions of section 103 — 5(b). In People v. Watson (1946), 394 Ill. 177,179, our supreme court stated:

“ ‘A nolle prosequi is not a final disposition of the case, and will not bar another prosecution for the same offense. It is not an acquittal, but it is like a nonsuit or discontinuance in a civil suit, and leaves the matter in the same condition in which it was before the commencement of the prosecution.’ [Citation.] Again, it has been said that the ordinary effect of a nolle prosequi is to terminate the charge to which it is entered and to permit the defendant to go wherever he pleases, without entering into a recognizance to appear at any other time. If it is entered before jeopardy has attached, it does not operate as an acquittal, so as to prevent a subsequent prosecution for the same offense.”

(See also People v. Sanders (1980), 86 Ill. App. 3d 457, 467.) In Freedman, the appellate court held that because the defendants were not in custody or on bond or recognizance during the period of time after a nolle prosequi was granted, the speedy-trial provisions of section 103— 5(b) were not applicable. Freedman, 155 Ill. App. 3d at 475.

With the aforementioned principles in mind, we turn to particular facts of this case. The key fact which is disputed by the parties is whether defendant was on bail after the State nol-prossed the September 15 charge. If defendant remained on bail after the State nolprossed the charge against him, then the law dictates that the 160-day period would continue to run from the date on which defendant demanded a speedy trial. If, however, defendant was released from his bail obligation on the September 15 charge, then the 160-day period could not be invoked until defendant was charged anew and made a demand for a speedy trial.

“On a motion to dismiss for violation of a defendant’s right to speedy trial, the defendant has the burden of affirmatively establishing the violation of his right.” (People v. Jones (1984), 104 Ill. 2d 268, 280.) Despite defendant’s assertions to the contrary, we determine that defendant has not satisfied his burden of proving that he was on bail or recognizance after the nolle prosequi of the September 15 charge. The record indicates that on April 4, 1988, defendant was placed on a $1,000 bail bond for the September 22 charge. In the absence of any evidence to the contrary, we may draw the inference that because the State instituted a bond against defendant on April 4, defendant was not on bond prior to that date. As evidence of his continuing bail obligation, defendant relies on the following statement of the trial court:

“Our factual situation, if I am correct here, in Mr. Stevens’ [defendant’s] case, he was in fact originally on bond. I think after the cases were dismissed — and we have gone through how that occurred in the earlier court hearings — but after the cases were dismissed, I think then maybe his bond was returned to him. But, I think, factually, Mr. Stevens was in fact on bail, contrary to the defendant in the Eblin case where he was never on bail.”

We consider the trial court’s statement with respect to defendant’s bail status to be confusing and ambiguous at best. The trial court stated that defendant’s bond was returned to him, yet the court also averred that defendant was on bail. We cannot say that this statement affirmatively establishes that defendant was on bail after the September 15 charge was nol-prossed. We conclude that because defendant has failed to prove that he was on bail or recognizance, his right to a speedy trial under section 103 — 5(b) was not violated. Consequently, the trial court erred in granting defendant’s motion to dismiss, and we reverse its decision and remand the cause for further proceedings.

In passing, we note that defendant raises for the first time on appeal the contention that his right to a speedy trial under the Illinois Constitution was violated. (See People v. Reimolds (1982), 92 Ill. 2d 101, 106; Ill. Const. 1970, art. I, §8.) Issues not raised in the trial court, including constitutional matters concerning speedy trial, are generally considered waived on appeal. (See People v. Jackson (1987), 162 Ill. App. 3d 476, 478; People v. Hall (1983), 117 Ill. App. 3d 881, 884.) Accordingly, we deem this issue waived.

The judgment of the circuit court of Du Page County is reversed, and the cause is remanded.

Reversed and remanded.

REINHARD and NASH, JJ., concur.


author: JUSTICE WOODWARD

text:
    DORIS GUTHRIE, Plaintiff-Appellant, v. TED ZIELINSKI et al., Defendants-Appellees.
    Second District
    No. 2-88-0651
    Opinion filed June 28, 1989.

      Ralph R. Hruby, of Carl F. Schroeder, Ltd., of Wheaton, for appellant.
    Thomas R. Weiler and John Edwin Norton, both of O’Reilly, Cunningham, Norton & Mancini, of Wheaton, for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

The plaintiff, Doris Guthrie, appeals from the trial court’s denial of her motion for partial summary judgment on her complaint under the Animal Control Act (the Act) (Ill. Rev. Stat. 1987, ch. 8, par. 366); she also appeals from the trial court’s granting of the defendants’ motion for summary judgment. On appeal, the plaintiff contends that the trial court erred in finding that the doctrine of assumption of risk barred her recovery under the Animal Control Act. With regard to her own motion for partial summary judgment, the plaintiff contends that the trial court erred in finding a genuine issue of material fact, namely, whether the plaintiff had provoked the animal that attacked her, thus precluding her from judgment as a matter of law.

The relevant facts before the trial court in its consideration of the parties’ opposing motions for summary judgment are as follows. The plaintiff, the 32-year-old daughter of the defendants, Ted and Margaret Zielinski, was in the habit of visiting her parents approximately four times a month or more. She had a key to their house and customarily entered through a garage door without knocking or announcing her entry. Sometime in May 1986, the defendants obtained a large dog named Jasper from an acquaintance who warned them that the dog was difficult to control. For approximately the first week the defendants owned Jasper, the acquaintance had to return daily to feed the dog. The first time the plaintiff ever saw the dog, he was kept in a 100-foot dog run behind the defendants’ garage. As she approached the dog run, the dog commenced barking “like he was ready to *** kill someone” and frightened the plaintiff so that she ceased her attempts to be friendly with him. Over the course of the next several months, the plaintiff continued to visit her parents on a regular basis, and the dog’s unfriendly attitude toward her never changed.

Ordinarily, the defendants kept the dog in the dog run, but on occasion Mrs. Zielinski allowed Jasper inside and fed him in the kitchen. The parties agree, however, that prior to the incident in question, Jasper was never in the house when the plaintiff came to visit.

On October 15, 1986, the plaintiff went to her parents’ home after work and entered through the garage door as usual. Upon entering, she saw her parents in the kitchen and greeted them by saying “hello.” They greeted her in return and were very happy to see her. The plaintiff then turned to close the door and check the time on a wall clock. In a matter of seconds, the dog, which had apparently been in the kitchen, leaped onto the plaintiff, biting and severely mauling her right leg above the knee. Mrs. Zielinski and the plaintiff’s son assisted her to a car and transported her to a hospital where she received treatment. The plaintiff remained hospitalized for three days and received intravenous drugs for the prevention of infection. During her recovery, a period of approximately six weeks, she was unable to care for her infant daughter and could not return to her part-time job as housekeeper. Ultimately the wound healed but left serious scarring and occasional pain in the plaintiff’s right leg.

The plaintiff filed a complaint against the defendants pursuant to the Animal Control Act, alleging that the defendants were the owners of an animal which attacked her, without provocation, while she was peaceably conducting herself in a place where she had a legal right to be. On the basis of depositions taken of all parties, plaintiff filed a motion for summary judgment, claiming that there were no genuine issues of material fact and that she was entitled to judgment as a matter of law.

In opposition, the defendants filed a motion for summary judgment based on the affirmative defense of assumption of risk. The defendants asserted that the plaintiff knew of the dog’s unfriendly attitude toward her, yet she entered the defendants’ house unannounced and provoked the dog by her presence. The defendants’ assertion was based on Harris v. Walker (1988), 119 Ill. 2d 542, in which the supreme court considered the Act with regard to a plaintiff who rented a horse at a stable and signed a release containing an exculpatory clause prior to taking the horse out for a ride. The high court concluded that the plaintiff’s relationship to the defendant stable owner precluded him from asserting coverage under the Act. The supreme court stated:

“We therefore hold that where a person rents a horse and understands and expressly accepts the risks of using the horse, he cannot recover damages from the person who rented the horse to him under the Act.” 119 Ill. 2d at 548.

In the case at bar, the trial court accepted the defendants’ argument based on Harris v. Walker and granted their motion for summary judgment, stating:

“[Apparently the Supreme Court is agreed in enunciating the doctrine of assumed risk; is giving credence to notice and apparently playing around with a doctrine of surprise, or lack thereof.”

The trial court further denied the plaintiff’s motion for summary judgment, finding that a question of fact existed as to whether the attacking dog had been provoked. The plaintiff’s timely appeal ensued.

Initially, we observe that the purpose of summary judgment is not to try an issue of fact but to determine whether there are any issues of material fact. (Golden v. Marshall Field & Co. (1985), 134 Ill. App. 3d 100.) Summary judgment is a drastic measure to be granted only where the evidence, when construed most strongly against the moving party, establishes clearly and without doubt the right thereto. (Becovic v. Harris Trust & Savings Bank (1984), 128 Ill. App. 3d 107.) Summary judgment should be awarded with caution so as not to preempt the right to trial by jury or the right to present fully a factual basis for a case when a material dispute may exist. W.H. Lyman Construction Co. v. Village of Gurnee (1985), 131 Ill. App. 3d 87.

The Animal Control Act provides in pertinent part:

“If a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained.” Ill. Rev. Stat. 1987, ch. 8, par. 366.

The statute thus reduces the burden upon a plaintiff by eliminating the common-law requirement that an injured person prove and plead that an animal owner knew or should have known of his animal’s propensity to injure or attack people. (See Harris, 119 Ill. 2d at 547.) Even so, a plaintiff must still prove four elements in order to sustain a cause under the Act, namely: (1) injury caused by an animal owned by the defendant; (2) attack or injury by the animal without provocation; (3) peaceable conduct on the part of the injured person (the plaintiff); (4) the plaintiff is in a place where he lawfully has a right to be. (Ill. Rev. Stat. 1987, ch. 8, par. 366; see also Forsyth v. Dugger (1988), 169 Ill. App. 3d 362, 365.) In short, while a plaintiff need not prove a defendant’s negligence under the Act, the statute does not impose absolute liability on animal owners. See Vanderlei v. Heideman (1980), 83 Ill. App. 3d 158, 161-62.

In the instant case, there is no dispute between the parties as to the ownership of the dog, nor do the defendants dispute that the plaintiff was peaceably conducting herself at the time of the attack. The defendants do argue, however, that the plaintiff did not have a legal right to be in her parents’ house and her presence there provoked the animal.

Despite the instant defendants’ assertions to the contrary, we find that the plaintiff was lawfully on the premises at the time the defendants’ dog attacked her. (See Messa v. Sullivan (1965), 61 Ill. App. 2d 386.) The plaintiff, although an adult who resided elsewhere, was in the habit of visiting the defendants, her parents, on a regular basis; she possessed a key to the defendants’ home, and such possession was of a long-standing nature. It was her custom to enter the garage and to neither knock nor announce her entry, and she had never been requested to do so by the defendants. The defendants offer no basis, and we find none, for their assertion that her presence in their home was anything other than lawful.

With regard to the issue of provocation, we find Stehl v. Dose (1980), 83 Ill. App. 3d 440, dispositive. Therein plaintiff argued that the jury’s verdict was against the manifest weight of the evidence. The Stehl court stated:

“As we analyze the evidence in the record, plaintiff clearly established that he was behaving in a peaceable manner, that the owner of the property had invited plaintiff to come upon the premises for the purpose of taking the dog, that defendant’s dog attacked, and that plaintiff was injured. However, whether plaintiff’s conduct amounted to provocation is not clear. Reasonable men would differ, and accordingly, we view this issue as one especially suited to jury determination.” (83 Ill. App. 3d at 443.)

Similarly here, we find that reasonable people could differ on the issue of whether plaintiff, despite behaving peaceably and lawfully being at her parents’ home, had provoked the attack. Thus, there remains a disputed material fact for a trier of fact to determine, i.e., whether plaintiff provoked the dog to attack her. Consequently, the trial court’s denial of the plaintiff’s motion for partial summary judgment was correct.

We turn now to consideration of the trial court’s order granting the defendants’ motion for summary judgment on the ground that the plaintiff assumed the risk of the injury she received. We note at the outset that the trial court granted the defendants’ motion based on its interpretation and application of Harris v. Walker (1988), 119 Ill. 2d 542, which we have discussed previously. The trial court stated:

“In connection therewith, the Court notes that apparently the Supreme Court [in Harris v. Walker] is agreed in enunciating the doctrine of assumed risk; is giving credence to notice and apparently playing around with a doctrine of surprise, or lack thereof.”

As noted above, the supreme court did indeed apply the principles of the doctrine of assumption of risk. We hasten to point out, however, that the plaintiff in Harris expressly assumed all risks, i.e., those inherent in the activity, and those arising from the defendant’s negligence, when he signed a specific exculpatory agreement. In short, Harris explicitly released the defendant from any and all liability for injuries he might sustain during the specified activity, viz., horseback riding.

The facts presented in Harris are easily distinguishable from those of the instant case. Further, the doctrine of express assumption of risk has no applicability to the instant facts. The plaintiff states correctly that the trial court failed to consider the obvious dissimilarity between these factual patterns and thus improperly applied the Harris holding.

We agree with the plaintiff’s further assertion that the trial court’s overly broad interpretation and application of the Harris decision unilaterally and improperly expanded the defense of assumption of risk to an extent never recognized by the Illinois Supreme Court or the appellate court of this district. As the supreme court in Harris stated:

“The plaintiff’s relationship to the defendant in this case excluded the plaintiff from the coverage of the [Animal Control Act]. Plaintiff rented the horse from defendant’s stable and claimed to fully understand and accept the risks of horseback riding. By establishing this relationship, the plaintiff took himself out of the class of persons the legislature intended to protect.” (Emphasis added.) (119 Ill. 2d at 547-48.)

The supreme court’s narrow and explicit holding in Harris flows directly from its recognition of the unique contractual relationship between the plaintiff and the defendant. Here there was no such contractual relationship between the parties.

The trial court’s characterization of the supreme court’s decision in Harris as “enunciating the doctrine of assumed risk *** giving credence to notice and apparently playing around with a doctrine of surprise” fails to recognize the limited nature of the concept of assumption of risk in this State. The supreme court has long rejected arguments to expand the doctrine and has said:

“Evaluation of the intrinsic merits of the concept of assumption of risk indicates that no expansion of that concept in Illinois law is warranted. The action of the trial court in giving the instruction on assumption of risk here, where there was neither express consent nor an employment or contractual relationship ***, constituted reversible error.” (Emphasis added.) Barrett v. Fritz (1969), 42 Ill. 2d 529, 536-37.

We determine that the limitation on assumption of risk is fully applicable to the case at bar, where the plaintiff’s action is based neither on a negligence theory nor on strict liability but is a curious statutory hybrid. See Harris, 119 Ill. 2d at 547 (under the Act a plaintiff need not plead or prove an animal owner’s negligence); Vanderlei v. Heideman (1980), 83 Ill. App. 3d at 158 (the legislature did not intend to impose strict liability on animal owners with the passage of the Act).

In conclusion, where the defendants have failed to present any evidence that the plaintiff expressly relieved them from any liability for injuries inflicted by their dog, and in the absence of evidence of a contractual or employment relationship between the parties, we determine that the doctrine of assumption of risk is inapplicable. Accordingly, the trial court’s granting of the defendants’ motion for summary judgment was error.

The judgment of the circuit court is affirmed in part and reversed in part, and the cause is remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

UNVERZAGT, P.J., and NASH, J., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant and Cross-Appellee, v. FRED WEISZMANN et al., Defendants-Appellees and Cross-Appellants.
    Second District
    No. 2-88-0864
    Opinion filed June 30, 1989.

      Neil F. Hartigan, Attorney General, of Springfield, and Connolly, Ekl & Williams, P.C., of Clarendon Hills (Stephen J. Connolly, of counsel), for the People.

      Paul E. Hamer, of Northbrook, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, the State of Illinois, filed suit in the circuit court of Lake County, seeking to quiet title to three parcels of real estate and naming as defendants Fred Weiszmann, William W. Janssen, and Malissa Vander Goten. Defendants, Weiszmann and Janssen, filed an answer and counterclaim seeking to quiet title against the State’s claim in the subject parcels. Defendant Vander Goten never filed an appearance or any response to the State’s complaint and is not a party to this appeal. Defendants moved for class certification which was denied. The State and defendants filed cross-motions for summary judgment. The circuit court granted defendants’ motion, and the State appeals. Defendants cross-appeal from the denial of their motion for class certification.

The issues raised are: (1) whether laches bars the State from seeking to quiet title; (2) whether the Illinois marketable title act bars the State’s claim; (3) whether the State has title to the subject property superior to that of defendants; (4) whether the amended judgment should be reversed as containing legal conclusions and inaccurate statements of fact which infer that there are no factual issues in this case; and (5) whether the circuit court erred in denying defendants’ motion for class certification.

The parties submitted a stipulation of facts for the purpose of ruling on their respective motions for summary judgment. According to the stipulation, in 1839 the Federal government surveyed the Fox River, which runs through the bodies of water known as Nippersink and Pistakee Lakes, and established a meander line known as the “Government Meander Line of 1839.” In 1890, the Federal government surveyed three bodies of land located between the 1839 meander lines, known as Watt’s Island, Nett’s Island and Riverside Island. In 1891, the Federal government issued a patent to Watt’s Island to Mr. Edwin M. Hale.

The subject property of this lawsuit also lies between the 1839 meander lines and has been above water since 1890. The subject property consists of three parcels. Parcel one consists of approximately 11.6 acres and is connected to Watt’s Island. Parcel two is comprised of approximately 13.8 acres and is also connected to Watt’s Island. Parcel three is an approximately 1.1-acre island adjacent to Watt’s Island. (See Appendix.) Title to Watt’s Island as it existed in 1890 is not at issue in this case.

Since 1928, defendant Janssen and his predecessors in title claimed the subject property under claim or color of title and paid all taxes and assessments on the three parcels until 1972. In November 1973 defendant Weiszmann purchased the subject property for nonpayment of taxes, and tax deeds were issued to Weiszmann in 1976. Weiszmann paid all taxes and assessments on the property up to the filing of the stipulation.

Defendant Janssen, in 1965, filed suit in the circuit court of Lake County to quiet title to the subject property. The suit named the State as a party, but the State, upon its own motion, was dismissed from the case. In April 1974, the circuit court of Lake County declared Janssen to be fee simple owner of the three subject parcels subject to the rights, if any, of the State. The stipulations further provide that since 1839 the State has not attempted to establish title in or contested title to the subject property prior to the filing of this lawsuit.

We initially address the State’s contention that the written judgment as amended must be reversed because it contains legal conclusions and inaccurate statements of fact which create an inference that there are no factual issues regarding certain findings contained in the written judgment. This contention is without merit, however, as all but one of those findings is a legal conclusion based upon the stipulated facts. As to the finding that master’s deeds had been issued to Janssen in 1928, while we find no basis in the stipulations for such a finding, any discrepancy between the finding and the stipulations in that regard is nonprejudicial as that finding is not critical to the outcome of this appeal.

We next address the issue of whether laches bars the State’s claim in this case. The State contends that laches does not apply to the State under usual circumstances, and, even if it does apply in this case, the elements have not been met.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c); Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 112, 514 N.E.2d 188.) While summary judgment may be an expeditious method of disposing of a lawsuit, it is also a drastic means and therefore should be allowed only when the right of the movant is clear and free from doubt. Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.

The doctrine of laches is not ordinarily applied to the State. (Pavlakos v. Department of Labor (1985), 111 Ill. 2d 257, 265, 489 N.E.2d 1325; Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 447-48, 220 N.E.2d 415.) The reluctance to apply equitable principles against the State does not, however, amount to an absolute immunity under all circumstances. (Hickey, 35 Ill. 2d at 448, 220 N.E.2d at 425-26; Haeflinger v. City of Wood Dale (1984), 129 Ill. App. 3d 674, 679, 472 N.E.2d 1228.) The State may be barred by laches, even when acting in its governmental capacity, under extraordinary circumstances. Hickey, 35 Ill. 2d at 448-49, 220 N.E.2d at 426; Haeflinger, 129 Ill. App. 3d at 679, 472 N.E.2d at 1232.

We begin by noting that defendant Janssen’s claim to the subject property arose in 1928. We, therefore, need only consider the conduct of the State related to the three parcels as of 1928, although it was stipulated that since the government meander lines were established in 1839, the State has not attempted to establish title or contested title except in this suit. In this regard, the State has done nothing to enforce its claim and has not taken any action consistent with ownership between 1928 and 1978, the date it filed this lawsuit. Not only did the State fail to assert any claim to the property, it took affirmative action reflecting its disinterest in the property by moving for and receiving dismissal from the 1965 suit to quiet title in which Janssen was subsequently found to have fee simple title subject to the rights, if any, of the State. Additionally, the State did not object to Weiszmann’s purchase of the property for nonpayment of taxes at a public sale in November 1973 or to the issuance of the tax deeds in 1976. Thus, under these extraordinary circumstances it is proper to apply the doctrine of laches to the State’s claim.

It must be determined, however, whether laches actually bars the State’s claim under these circumstances. Laches is an equitable doctrine to be invoked or rejected in the trial court’s discretion and will operate to bar equitable relief where the failure to assert a right, along with a lapse of time and other circumstances, causes prejudice to the adverse party. (Finley v. Finley (1980), 81 Ill. 2d 317, 329, 410 N.E.2d 12; see People ex rel. Daley v. Strayhorn (1988), 121 Ill. 2d 470, 482, 521 N.E.2d 864.) Here, the stipulated facts are that defendant Janssen has claimed title to the property since 1928 and Weiszmann since 1976, a period of approximately 50 years prior to the State filing suit. The State never took any action to quiet title or otherwise assert ownership in the property during those 50 years and moved to be dismissed from a suit to quiet title in 1965. Furthermore, the State did nothing to challenge Janssen’s acquisition of the subject property, nor did it object in any way to Weiszmann’s purchase or the issuance of the tax deeds.

Defendants have also suffered prejudice due to the State’s failure to exert its claimed interest in the subject property. Payment of taxes for a substantial period of time will justify invocation of laches. (Pyle v. Ferrell (1958), 12 Ill. 2d 547, 555, 147 N.E.2d 341; Miller v. Bloomberg (1984), 126 Ill. App. 3d 332, 339, 466 N.E.2d 1342.) Here, Janssen and his predecessors paid taxes and assessments on the property from 1928 to 1972. Janssen also filed a lawsuit in 1965 in which he attempted to quiet title, and the State moved successfully to dismiss itself from the action. The case was in litigation for nine years before Janssen was awarded fee simple title to the property subject to the rights, if any, of the State. Weiszmann paid taxes and assessments from 1973 until the time this suit was filed. Under these circumstances, it was not an abuse of discretion for the trial court to find that laches barred the State from enforcing in this suit brought in 1978 any claim it might have to the three parcels. (See Hickey, 35 Ill. 2d at 449-50, 220 N.E.2d at 427.) Therefore, the trial court did not abuse its discretion in granting summary judgment in favor of defendants as to any claim the State might have in the subject property. Because of our disposition of this issue, we need not address any of the remaining issues raised in the State’s appeal.

In their cross-appeal, defendants contend that the circuit court erred in denying their motion for class determination. In this motion, defendants generally alleged that the class consisted of “all persons or entities owning real property which lies between the original meander lines of the river, lakes and streams established after the State of Illinois was admitted into the Union in 1818.” They further stated that the proposed class was over one million in the State and more than 10,000 in Lake County and that there were questions of law common to the class, which include whether the State of Illinois is entitled to the ownership of lands lying between the original meander lines of the rivers, lakes, and streams of the State. The circuit court denied the motion, finding, inter alia, that defendant could not adequately represent the interests of the entire class and that the notice requirements are insurmountable. The court also found that the doctrine of sovereign immunity did not apply-

In a motion to reconsider this decision, defendants further suggested that the class be reduced from a Statewide class to a class of defendants purporting to own lands which lie within the government meander line of the Fox River which lies in Lake and McHenry Counties, reducing the class to approximately 350 property owners. This motion was also denied.

Defendants’ contention on appeal is that the class action is appropriate because, otherwise, each individual property owner in the future will have to defend an action by the State when it seeks to acquire land or will have to file a separate suit in order to quiet title to relicted land on rivers. Defendants argue that they complied with the requirements of acting as a class representative as set forth in section 2 — 801 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2-801).

The State responds that the proposed class determination filed by defendants is against the State of Illinois and is barred by the doctrine of sovereign immunity. The State alternatively asserts that the circuit court properly denied the motion for class certification as the defendants did not identify the facts which might show common legal issues for resolution, and further note that the defendants themselves may have opposing interests so that they cannot adequately represent the class.

The prerequisites for the maintenance of a class action are:

“(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members.
(3) The representative parties will fairly and adequately protect the interest of the class.
(4) The class action is an appropriate method for the fair and efficient adjudication of the controversy.” (Ill. Rev. Stat. 1987, ch. 110, par. 2-801.)

The named plaintiffs in a class action have the burden of establishing the statutory prerequisites (Wheatley v. Board of Education (1984), 99 Ill. 2d 481, 486, 459 N.E.2d 1364), and the trial court’s decision whether to certify a purported class is a matter of sound discretion which will be reversed only upon a clear abuse of discretion or the application of impermissible legal criteria. Schlenz v. Castle (1981), 84 Ill. 2d 196, 203, 417 N.E.2d 1336.

In their motion, defendants have failed to show that there are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 801(2).) The test to be applied under section 2 — 801(2) is that so long as there are questions of fact or law common to the class and these predominate over questions affecting only individual members of such class, the statutory requisite is met. Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 16, 428 N.E.2d 478.

Defendants’ motion for class determination stated that the common question of law was whether the State of Illinois is entitled to the ownership of the lands lying between the original meander line of the rivers, lakes and streams in the State. The motion to reconsider sought to narrow the class to Lake and McHenry County landowners along the Fox River. While this may be the ultimate issue as to some, or even assuming all of the proposed class members, such factual questions as to the time of acquiring the interest in the property, the source of the title, the location of the property, and the application of legal and equitable principles in each case would be unique. Defendants have not shown in their general motion for class determination that the questions of fact or law are common to the class and predominate over questions affecting only individual members of the class. (See Key v. Jewel Cos. (1988), 176 Ill. App. 3d 91, 95-98, 530 N.E.2d 1061; Goetz v. Village of Hoffman Estates (1978), 62 Ill. App. 3d 233, 238, 378 N.E.2d 1276.) We find no abuse of discretion in the denial of the motion for class determination.

In view of our disposition of the cross-appeal on the above basis, we need not reach the issue whether the filing of the motion for class determination by defendants against the State in this action initially brought by the State against defendants in the circuit court is barred by the doctrine of sovereign immunity.

The judgment of the circuit court is affirmed.

Affirmed.

NASH and WOODWARD, JJ., concur.


text:
    KEVIN HOLMES, Plaintiff-Appellant, v. THE ILLINOIS MUNICIPAL RETIREMENT FUND et al., Defendants-Appellees.
    Second District
    No. 2-88-1162
    Opinion filed June 23, 1989.
    Leonard J. Wojtecki, of Truemper, Hollingsworth & Wojtecki, of Aurora, for appellant.
    Kathleen O’Brien, of Illinois Municipal Retirement Fund, of Chicago, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Kevin Holmes, is a police officer for the City of Aurora, an Illinois municipality of over 5,000 inhabitants. The board of trustees of the Aurora police pension fund denied plaintiff’s application for membership to the fund, allegedly on the ground that plaintiff had diabetes. Thereafter plaintiff filed an application to participate in the Illinois Municipal Retirement Fund (IMRF). The IMRF board of trustees denied the application on the ground that those who perform police duties were excluded from the fund. Plaintiff filed a complaint for administrative review of the board’s decision. The circuit court denied the request to reverse the board’s decision, and plaintiff’s appeal followed. We affirm.

The only material issue is an interpretation of law: whether a policeman denied the right to participate in the policemen’s pension fund is allowed to participate in the IMRF. Article 7 of the Illinois Pension Code (Ill. Rev. Stat. 1987, ch. 108x/2, par. 7 — 101 et seq.) covers all employees of all Illinois municipalities unless they are specifically excluded by some provision of article 7. (Ill. Rev. Stat. 1987, ch. 108x/2, par. 7 — 137.) The principal exclusions are found in section 7— 109 (Ill. Rev. Stat. 1987, ch. IO8V2, par. 7 — 109), which contains the definition of eligible employees. Section 7 — 109(2)(b) reads:

“(2) ‘Employee’ does not include persons who: * * *
(b) Are designed [sic] by the governing body of a municipality in which a pension fund is required by law to be established for policemen or firemen respectively, as performing police or fire protection duties, except, that when such persons are the heads of the police or fire department and are not eligible to be included within any such pension fund, they shall be included within this Article; provided, that such persons shall not be excluded to the extent of concurrent service and earnings not designated as being for police or fire protection duties.” Ill. Rev. Stat. 1987, ch. 108x/2, par. 7 — 109(2)(b).

Both plaintiff and defendants urge this court to use the ordinary and plain meaning of the words of the statute.

Plaintiff argues that the statute should be interpreted as stating that only those policemen who are participating in their own pension plan are excluded from the provisions of the IMRF. Plaintiff relies on the words “ ‘[ejmployee’ does not include persons who: *** [a]re designed [sic] by the governing body of the municipality in which a pension fund is required by law to be established for policemen.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 108x/2, par. 7 — 109(2)(b).) Since the plaintiff was not “designed” to be part of the policemen’s pension plan on account of his diabetes, he argues that he is not within the exception. Plaintiff states that the reason for the exclusion is that when the IMRF was established, there was already a retirement fund for police officers, and there was no need to have officers who are already contributing to one fund contribute to another. Plaintiff argues, since he is not already contributing to a police officers’ fund, he should not be excluded from the IMRF.

It is true that the exclusion does not read “all policemen are excluded.” Nor does the exclusion read “all policemen already covered by a plan are excluded.” Proper parsing of the statute puts the emphasis of the sentence on the subjective complement “as performing police duties,” not on the adverbial phrase of who designates. Plaintiff omits the subjective complement which is necessary for comprehension of the sentence. The meaning of the sentence becomes apparent as each clause of the sentence is considered. The statute is attempting to differentiate between those municipalities which are required to maintain separate funds for their police force, i.e., those municipalities with more than 5,000 inhabitants (large), and those not required to maintain a separate fund, i.e., those with less than 5,000 inhabitants (small). Article 3 of the Pension Code (Ill. Rev. Stat. 1987, ch. 108x/2, par. 3 — 101 et seq.) imposes the duty on each large municipality to establish a separate fund for its police force. (Ill. Rev. Stat. 1987, ch. 108x/2, pars. 3 — 101, 3 — 103.) Small municipalities do not have a duty to establish a separate fund for policemen and therefore include their policemen in the State’s general-employee IMRF fund established under article 7 of the Pension Code. Stripped of excess verbiage, we read section 7 — 109(2)(b) as follows: “ ‘Employee’ does not include persons who: *** (b) [a]re [designated by an article 3 municipality] as performing police or fire protection duties.” Ill. Rev. Stat. 1987, ch. 108x/2, par. 7 — 109(2)(b).

Rather, than just excluding those who perform police duties, section 7 — 109(2)(b) is worded so that the governing body of a large municipality decides who performs police duties and thus is covered by an article 3 plan, and who does not perform police duties and is not excluded from the article 7 plan coverage of the IMRF. Small municipalities make no such decision regarding the designation and are spared the expense of administering different funds. Thus, the question in this cause becomes whether the plaintiff was designated by his municipality as performing police duties.

The City of Aurora has over 5,000 inhabitants; hence, article 3 applies to this situation. Section 3 — 106 of article 3 of the Code (Police Pension Fund) (Ill. Rev. Stat. 1987, ch. 108x/2, par. 3 — 106) defines a “police officer” as follows:

“Any person who (1) is appointed to the police force of a police department and sworn and commissioned to perform police duties; (2) is found upon examination of a duly licensed physician or physicians selected by the board to be physically and mentally fit to perform the duties of a police officer; and (3) within 3 months after receiving his or her first appointment, and if reappointed, within 3 months thereafter, makes written application to the board to come under the provisions of this Article.”

“Performing police duties” is only one requirement of the definition. “Fit to perform duties” is another requirement. The board of trustees ,of the Aurora police pension fund denied plaintiff entry into the pension fund because he had diabetes. Under Illinois law, a policeman or fireman can perform police or fire protection duties but still be declared unfit to perform police or fire protection duties for police pension purposes if he has some condition which renders him more prone to disability. See Esner v. Board of Trustees (1979), 68 Ill. App. 3d 541, 545; see also Sanders v. Board of Trustees (1983), 112 Ill. App. 3d 1087, 1091; Gordan v. Board of Trustees (1966), 77 Ill. App. 2d 234.

However, based on the wording of the articles, the fact that the board of trustees of the Aurora police pension fund did not designate plaintiff as an officer qualifying under section 3 — 106 does not mean that he was not designated to perform police duties. The terms are not mutually exclusive. Performing police duties is only one of the requirements for qualification under the police pension plan. For example, those persons who do not perform police duties but instead perform clerical duties for police departments are excluded from article 3. (Ill. Rev. Stat. 1987, ch. IO8V2, par. 3 — 109.) Since those persons do not perform police duties, they would not be excluded from article 7 coverage. Plaintiff, however, does perform police duties and finds himself not excluded from article 3, but not included as a covered police officer under section 3 — 106. Section 7 — 109(b)(2) excludes, with one exception, those who perform police duties, not those who contribute to police pension plans. The sole exception to the exclusion we have discussed relates to police and fire heads and is not germane here.

The Illinois General Assembly provided for only one exception to the exclusion, and plaintiff does not fit within the exception. Plaintiff has fallen through a crack in the general statutory pension scheme created by the State. Whether the State should “fill this crack” is not within our purview.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

REINHARD and NASH, JJ., concur.


text:
      In re FRANCISCO ALBA, JR., et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Francisco Alba, Sr., Respondent-Appellant).
    Second District
    Nos. 2-88-0706, 2-88-0707 cons.
    Opinion filed June 23, 1989.
    Snively & Snively, of Rockford (William H. Snively, of counsel), for appellant.

      Charles R. Hartman, State’s Attorney, of Freeport (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Respondent, Francisco Alba, Sr., appeals from the order of the circuit court of Stephenson County placing custody and guardianship of his children, Lea Alba and Francisco Alba, Jr. (Frankie), with their natural mother, following adjudication of the children as abused minors.

Respondent contends on appeal that the finding that Lea and Frankie were abused minors is not supported by sufficient evidence because the evidence of abuse consisted entirely of out-of-court statements of Lea and Frankie which were not corroborated by any other evidence or subject to cross-examination.

Respondent had been granted custody of Frankie and Lea following a dissolution of marriage from their mother in 1984. On May 5, 1988, separate petitions were filed to adjudicate Frankie, who was then six years old, and Lea, who was then five years old, abused minors. The petitions alleged that Lea was an abused minor in that respondent had committed a sex offense against her (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 3(2)(a)(iii)) and that Frankie was an abused minor in that his environment was injurious to his welfare, because he resided in the same household with his sexually abused sister (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 3(2)(b)). Following a hearing on May 5, the Department of Children and Family Services was given temporary custody of both children. On June 14, supplemental petitions were filed alleging that Frankie was abused in that respondent committed a sex offense against him and that Lea was abused in that she resided in the same household as her sexually abused brother.

At the adjudicatory hearing conducted on June 15, 1988, Terry Hendrickson, the family service coordinator for NICA Head Start, testified that she knew Lea from Lea’s participation in the Head Start program. On April 29, 1988, Hendrickson, who had become concerned about Lea’s home life, asked Lea if she was having any problems at home. She said that when their daddy was mad at them he would spank them with a stick. During the discussion that ensued, Hendrickson asked Lea if she knew what private parts meant and pointed to various body parts to confirm Lea’s understanding. Hendrickson then asked Lea if anyone touches her private parts. Lea responded, “[Y]es, daddy does.” Later that day, Hendrickson again asked, “[D]oes daddy touch your private parts?” Lea answered, “[Y]es, and he puts his favorite part in me.” Hendrickson then asked Lea to draw a picture of her father and herself. Hendrickson asked Lea to draw a line from daddy’s favorite part to where he places it on her, and Lea drew a line between the crotch areas of the two figures. The drawing was placed in evidence.

Pat Graham-Touhy, the educational services coordinator for the Family Advocate program in Rockford, testified that Lea and Frankie were referred to the program on May 19, 1988. Graham-Touhy saw both children on several occasions between May 19 and June 8. She related several statements the children made during her discussions with them. Both children had separately stated that they were “afraid of daddy.” Additionally, Lea had told her “daddy touches my pee-pee” and “daddy touches my bottom.” Frankie made similar statements. During a subsequent session Lea told Graham-Touhy that “daddy puts his dick in my mouth.” On one occasion Frankie related that he had been orally and anally penetrated.

Bertha Brinkmeir, who served as the children’s foster mother following their removal from respondent’s custody, testified that on May 4, 1988, she took Lea for a medical examination. The examination was painful for Lea. Brinkmeir asked Lea if anybody had ever hurt her like that before. Lea responded, “[M]y daddy.” On another occasion, Lea began to talk about “bad touches” stating that she had to touch “daddy’s wiener.” She also indicated that respondent had inserted a pen in her anus and that respondent’s girlfriend, Michelle, had done the same to Frankie.

The State sought to call Frankie and Lea to testify. However, following in camera examinations to determine their competence to testify, the State withdrew Lea as a witness and then withdrew Frankie when the trial judge indicated he would sustain the objection to his testifying.

Donald R. Pearson, a psychologist specializing in diagnostics, testified that he examined Frankie on June 3, 1988. During the examination, Frankie was initially cooperative, open and alert. When asked about his natural parents, however, he became somewhat withdrawn. Pearson asked Frankie about punishment. Frankie responded that his father would hit him hard, his mother would pull his hair, and Michelle would slap him across the face. When asked if anybody did anything naughty to him, Frankie became withdrawn.

Pearson administered a battery of tests to Frankie. According to Pearson, about half of the tests did not yield valid results. One test which Pearson found significant involved having Frankie draw a house, a person, and a tree. Pearson noted that Frankie drew a person with no body, but rather with arms and legs emanating from the head. According to Pearson, such a drawing was characteristic of somewhat younger children and could reflect retardation or neurological impairment, but could also reflect anxiety or other emotional factors. Pearson also administered the Bender Visual Motor Gestalt Test, which involved having Frankie reproduce designs printed on cards. Pearson noted that Frankie’s tendency to separate overlapping figures in the designs was characteristic of children subjected to abusive adults.

Based on the various tests yielding valid results, Pearson stated that mental retardation was a possibility; however, in Pearson’s opinion, Frankie exhibited an atypical pervasive developmental disorder reflecting exposure to unusual environmental conditions. Pearson stated that he believed Frankie had been subjected to cruel or inhuman treatment. Pearson rendered an opinion that Frankie had been physically abused. However, Pearson also stated twice that he could not conclude that Frankie had been sexually abused. On redirect examination, he agreed that environmental trauma could include sexual abuse.

Respondent, testifying on his own behalf, denied ever having sexual contact with Lea or Frankie.

Respondent contends that the evidence was insufficient to adjudicate Frankie and Lea abused minors as the only evidence of the alleged sexual abuse was out-of-court statements of the minors which were neither corroborated nor subject to cross-examination. The State does not dispute that the finding of abuse rested on the hearsay testimony. The State contends, however, that the out-of-court statements were sufficiently corroborated.

Section 2 — 18(4)(c) of the Juvenile Court Act of 1987 provides that “[pjrevious statements made by the minor relating to any allegations of abuse or neglect shall be admissible in evidence. However, no such statement, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect.” (Ill. Rev. Stat., 1988 Supp., ch. 37, par. 802 — 18(4)(c).) Absent the foregoing legislation, the testimony of various witnesses as to statements made by Frankie and Lea would be inadmissible hearsay. (See In re K.L.M. (1986), 146 Ill. App. 3d 489, 493, 496 N.E.2d 1262.) However, while admissible, such testimony cannot alone support a finding of abuse if uncorroborated and not subject to cross-examination.

The State asserts, without citation of authority, that Lea’s drawing of herself and respondent provided sufficient corroboration. We find this contention without merit. Lea’s drawing was itself hearsay, which is testimonial or written evidence of a statement made out of court, such statement being offered as an assertion to show the truth of the matter asserted. (People v. Carpenter (1963), 28 Ill. 2d 116, 121, 190 N.E.2d 738; People v. Westefer (1988), 169 Ill. App. 3d 59, 63, 522 N.E.2d 1381.) Lea’s drawing, produced in response to a request that she draw a picture showing where her father puts his “favorite part,” and offered for no other purpose than to prove the truth of the matter depicted, is within this definition. (See In re Dependency of Penelope B. (1985), 104 Wash. 2d 643, 709 P.2d 1185.) Clearly, evidence which is in itself hearsay cannot provide the corroboration required by the statute.

The State also maintains that the expert testimony of Donald Pearson also could be “characterized” as corroborative evidence. We disagree. “Corroborate” has been defined as “to add weight or credibility to a thing by additional and confirming facts or evidence.” (In re Custody of Brunken (1985), 139 Ill. App. 3d 232, 239, 487 N.E.2d 397.) What facts or evidence will serve as confirming or corroborative facts will necessarily vary depending on the facts to be corroborated. (In re Custody of Brunken, 139 Ill. App. 3d at 239, 487 N.E.2d at 401. ) Here, the petitions for adjudication alleged that respondent sexually abused Frankie and Lea. There is nothing in Pearson’s testimony which corroborates the hearsay evidence of sexual abuse, although Pearson concluded Frankie was physically abused.

Pearson stated that, based on his observation of behaviors exhibited by Frankie during his examination, he believed Frankie had been exposed to highly unusual environmental conditions. While expressing his opinion that Frankie’s behavior related to environmental conditions, Pearson did not rule out the possibility of a neurological disorder. Pearson concluded that Frankie had been subjected to cruel or inhuman treatment. While Pearson rendered an opinion that Frankie was physically abused, he could not render an opinion that Frankie had been sexually abused. Pearson’s acknowledgment on redirect examination that it is possible that the environmental trauma could include sexual abuse is insufficient to be considered as corroboration in view of his unequivocal statements on both direct and cross-examination that he had no opinion that Frankie was sexually abused. (See In re Custody of Brunken, 139 Ill. App. 3d at 240, 487 N.E.2d at 402. ) While Pearson’s opinion was that Frankie was physically abused, the State did not allege physical abuse in either its original petitions or supplemental petitions.

The State further argues that in the case at bar there was more corroborative evidence than was present in In re S.M. (1988), 171 Ill. App. 3d 361, 525 N.E.2d 565, wherein this court affirmed a finding of abuse. However, that case involved the in-court testimony by the sexually abused victim, and previous statements of the victim were not used as evidence. Thus, the requirements of section 2 — 18(4)(c) did not apply to that case.

For the foregoing reasons, the judgments of the circuit court of Stephenson County are reversed.

Judgments reversed.

McLAREN and NASH, JJ., concur.


text:
    STEWART McNAMES et al., Plaintiffs-Appellees, v. ROCKFORD PARK DISTRICT, Defendant-Appellant (The City of Rockford et al., Defendants).
    Second District
    No. 2-88-0881
    Opinion filed June 23, 1989.

      G. Michael Scheurich, of Guyer & Enichen, of Rockford, for appellant.
    Elizabeth F. Canfield and Robert R. Canfield, both of Canfield Law Offices, of Rockford, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

This appeal is brought by the Rockford Park District (District), contending it has the statutory authority to provide shooting-range facilities as a recreational activity. We agree and reverse and remand.

Plaintiffs, neighbors of certain park lands administered by the District, brought this suit to enjoin defendant from leasing land to the Pine Tree Pistol Club (Club) for its exclusive use as a shooting range and to permanently enjoin the District from otherwise constructing and operating an indoor and outdoor pistol and rifle target-shooting range. Plaintiffs argued in separate counts that the District had no statutory authority to engage in such activities and that the range would be a nuisance and deprive plaintiffs of the peaceful enjoyment of their property. Plaintiffs additionally alleged that the range would interfere with the flood drainage system for which this 25-acre parcel of land was intended; this allegation was later withdrawn.

On March 17, 1988, the trial court granted summary judgment in favor of plaintiffs on the lease issue, finding that the District could not lawfully sell or lease land to the Club (Ill. Rev. Stat. 1987, ch. 105, par. 10 — 7) and dismissing the Club from the suit.

After trial, the court made the following factual findings, that, in ter alia, (1) maintaining a pistol and rifle shooting facility is an inherently dangerous activity and is not set forth as an authorized power of a park district under the Park District Code (Code) (Ill. Rev. Stat. 1987, ch. 105, par. 8 — 10); (2) pistol and rifle shooting and target practice constitute a recreational activity; and (3) a proposed, indoor target-shooting facility would not constitute a private nuisance. The court did not address whether the proposed outdoor shooting range was a nuisance. The court concluded, as a matter of law, that the District has no specific, statutory authority to conduct a recreational target-shooting facility and permanently enjoined the District from conducting, building, or operating any indoor or outdoor shooting range upon the specific premises legally described in the order.

The District appeals from the order enjoining the construction and operation of the proposed shooting facility, arguing that it has the statutory authority to construct and operate such facilities and that this is solely a question of law.

Plaintiffs conceded in answers to interrogatories that the issue is one of law, but contend that the failure to provide this court with a sufficient record requires affirmance. While we recognize the responsibility of an appellant to provide a sufficiently complete record of the trial proceedings to support a claim of error, the absence of the report of proceedings here will not bar our review as the issue we address is solely a question of law and does not involve evidentiary issues. (See Woodfield Ford, Inc. v. Akins Ford Corp. (1979), 77 Ill. App. 3d 343, 347.) The pleadings contain the legal issue to be resolved.

Defendant has appended to its brief an uncertified record of the proceedings during which the trial court briefly discussed its findings; such matter is outside the record, and we have not considered it.

In arguing that it has the implied power to construct and operate target-shooting ranges, the District relies on the grant of powers found in section 8 — 10 of the Code, which states:

“All park districts shall have power to plan, establish and maintain recreational programs, provide musical concerts, to construct, equip and maintain airports, landing fields for aircraft, armories, field houses, gymnasiums, assembly rooms, comfort stations, indoor and outdoor swimming pools, wading pools, bathing beaches, bath houses, locker rooms, boating basins, boat houses, lagoons, skating rinks, piers, conservatories for the propagation of flowers, shrubs, and other plants, animal and bird houses and enclosures, athletic fields with seating stands, golf, tennis, and other courses, courts, and grounds, and the power to make and enforce reasonable rules, regulations, and charges therefor. The express enumeration of each of the foregoing recreational facilities and equipment which park districts are herein given the power to provide shall not be construed as a limitation upon said park districts, nor prohibit any park district from providing any other facilities or equipment which may be appropriate for park purposes in any park of said district, nor shall the same in any way be held to limit the power and authority conferred upon park districts und,er other sections of this code.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 105, par. 8-10.

Defendant argues that the specific enumeration of permitted recreational programs and facilities is not meant to exclude shooting ranges as an implied, permissible activity. Alternatively, defendant argues that the provision for armories is express authority to permit park districts to build or operate shooting ranges and that, in any event, the Code does not distinguish between inherently dangerous activities and other activities appropriate to park uses.

What constitutes an appropriate recreational purpose as applied to any park district depends necessarily on the legislative grant of authority contained in section 8 — 10. The focus of our inquiry is whether this statute grants authority for a shooting range.

We have found no Illinois cases directly addressing this question. “In construing a statute provision not yet judicially interpreted, a court is guided by both the plain meaning of the language in the statute as well as legislative intent. [Citations.] The statutory language is the best indication of the intent of the drafters.” (Tisoncik v. Szczepankiewicz (1983), 113 Ill. App. 3d 240, 245.) Recently, in Town of Libertyville v. Blecka (1989), 180 Ill. App. 3d 677, this court set forth the following principles of statutory construction:

“When a statute contains language with an ordinary and popularly understood meaning, the courts will assume that its meaning was intended by the legislature. (People v. Haywood (1987), 118 Ill. 2d 263.) When interpreting a statute, the courts must give the language of the statute its plain and ordinary meaning. (Maloney v. Bower (1986), 113 Ill. 2d 473.) The legislature has the power to define terms within a statute in any reasonable manner. (Commonwealth Edison Co. v. Property Tax Appeal Board (1984), 102 Ill. 2d 443.) If the statutory language is clear and unambiguous, the court must give effect to that language. Maloney, 113 Ill. 2d at 479.” Town of Libertyville, 180 Ill. App. 3d at 680.

The court in Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, stated, “It is well established that the function of the courts in construing statutes is to ascertain and give effect to the intent of the legislature. [Citations.] In ascertaining the intent of the legislature, the court examines the entire statute and seeks ‘to determine the objective the statute sought to accomplish and the evils it desired to remedy.’ ” (Harris, 111 Ill. 2d at 362, quoting Springfield v. Board of Election Commissioners (1985), 105 Ill. 2d 336, 341.) “The courts also will avoid a construction of a statute which would render any portion of it meaningless or void.” Harris, 111 Ill. 2d at 362-63.

The trial court found that the proposed activities were recreational activities. Having made such a factual finding, the court reviewed the specifically enumerated recreational uses and determined the proposed recreational activity was not enumerated, and, thus, it was not statutorily authorized. The court failed to consider the broad and liberal language contained in the second sentence of section 8— 10. A fair and reasoned reading of section 8 — 10 requires us to conclude that any activity found to be recreational is authorized. To rule otherwise is to judicially excise a substantial portion of section 8 — 10 and to place all nonenumerated recreational activities beyond the abilities of all park districts to provide. This statute has not been effectively amended since 1929. We are of the opinion that, if the legislature felt that the language of section 8 — 10 was overly broad, it would have seen fit to amend section 8 — 10 sometime within the last 60 years.

The legislature has given park districts authority to provide recreational activities without reservation , and the law has remained constant for over 60 years. So long as a court determines that the activity is recreational, the only limitation under section 8 — 10 is the proper exercise of discretion by each individual park district, i.e., a determination by the park district that the recreational activity is appropriate for any park in the district. The trial court erred when it found no grant of statutory authority.

Lest this opinion be misconstrued, we have determined the park district has the authority under section 8 — 10 to provide pistol and rifle shooting ranges. We were not requested to address, nor do we address, the effect of the exercise of the police powers of the State and units of local government upon a particular recreational activity exercised in a particular park.

The arguments raised by the District concerning “armories” need not be addressed based upon the above.

As previously noted, the trial court found that pistol and rifle shooting and target practice constitute a recreational activity and that the proposed indoor target-shooting-range facility would not constitute a nuisance. Based upon the rulings of the trial court, the plaintiffs have failed to sustain their burden of proof, and judgment as to the indoor target-range facility should have been entered in favor of the District. The trial court did not determine if the outdoor target-range facility would or would not constitute a nuisance. Therefore, this cause is remanded to the trial court to enter judgment in favor of the District regarding the proposed indoor target facility and for the court’s determination as to whether or not the outdoor target facility is a nuisance.

The judgment of the circuit court of Winnebago County is reversed, and the cause is remanded.

Reversed and remanded.

DUNN and LINDBERG, JJ., concur.