author: JUSTICE McCULLOUGH

text:
    LAWRENCE F. DIETZ et al., Plaintiffs-Appellees, v. THE PROPERTY TAX APPEAL BOARD, Defendant-Appellant (Board of Review of Jackson County, Defendant).—LAWRENCE F. DIETZ et al., Plaintiffs-Appellees, v. THE PROPERTY TAX APPEAL BOARD, Defendant (Board of Review of Jackson County, Defendant-Appellant).
    Fourth District
    Nos. 4—89—0070, 4—89—0124 cons.
    Opinion filed December 14, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Rosalyn B. Kaplan, Assistant Attorney General, of Chicago, of counsel), for appellant Property Tax Appeal Board.
    Charles Grace, State’s Attorney, of Murphysboro (Michael L. Wepsiec, Assistant State’s Attorney, and Kenneth R. Boyle, Robert J. Biderman, and William P. Ryan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant Board of Review of Jackson County.
    Frederic S. Lane and William T. Barker, both of Sonnenschein, Carlin, Nath & Rosenthal, of Chicago, and Illinois Agricultural Association, of Bloomington (Danny J. Leifel, of counsel), for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

This appeal concerns section 20e of the Revenue Act of 1939 (Act) (Ill. Rev. Stat. 1985, ch. 120, par. 501e). The Jackson County Board of Review (County Board) applied a multiplier to determine the 1985 assessments for property owned by the plaintiffs, Lawrence E Dietz and Herman W. Dietz. On review, the decision of the County Board was affirmed by the Property Tax Appeal Board (Board), after the Board found the County Board’s decision followed the plain meaning of the Act and effectuated legislative intent. On administrative review, the circuit court of Sangamon County reversed the Board, finding its decision to be contrary to the plain meaning of section 20e. For the reasons that follow, we reverse the circuit court and affirm the Board’s decision.

Section 20e of the Act dictates that the “increase or decrease in the aggregate equalized assessed value of all farmland in any county” for 1984 and 1985 is held to 10% of the previous year’s figures. (Ill. Rev. Stat. 1985, ch. 120, par. 501e.) Plaintiffs are owners of eight parcels of farmland in DeSoto, in Jackson County, Illinois. After Jackson County assessing officials determined the preliminary assessments for 1985, a multiplier of 1.6654 was applied to plaintiffs’ parcels after assessing officials determined the 1985 aggregate equalized assessed value for all farmland in Jackson County, $10,293,388, decreased in excess of 10% from the 1984 aggregate assessment, $19,046,521. The 1985 preliminary assessments and those as adjusted by the multiplier are as follows:

Preliminary Assessments Assessments with Multiplier

Parcel I 776 1294.00

Parcel II 172 288.00

Parcel III 1653 2754.00

Parcel IV 722 1204.00

Parcel V 1119 1864.00

Parcel VI 470 783.00

Parcel VII 3217 5358.00

Parcel VIII 886 1476.00

On January 21, 1986, plaintiffs appealed the assessments to the Board. Multiple parties from different counties raising the same issues joined the plaintiffs’ appeal to the Board and agreed to be bound by the decision of the Board. Plaintiffs argued the County Board compared the wrong figures in determining the 10% limitation. Plaintiffs contended the proposed average equalized assessed per-acre figures, as certified by the Department of Revenue (Department) to the County’s assessing officials, are compared for the 10% limitation. The provision for these proposed figures is found in subsection (3) of section 20e. Ill. Rev. Stat. 1985, ch. 120, par. 501e(3).

On December 24, 1986, the Board affirmed the decision of the County Board. The Board first compared the figures relied upon by the plaintiffs in determining the percentage change from 1984 to 1985 with the figures relied upon by the Board. The Board considered such figures for each county concerned in the appeal before it. The percentage change from 1984 to 1985 is shown on the following table:

County 1984 Average Value 1985 Average Value Change Certified by Certified by Department Department

Carroll 186 201 + 8.1%

Cass 143 153 + 7.0%

Clinton 72 74 + 2.8%

Du Page 176 189 + 7.4%

Franklin 50 50 + 0.0%

Iroquois 183 197 + 7.7%

Jackson 45 46 + 2.2%

Jefferson 48 48 + 0.0%

Johnson 27 27 + 0.0%

Macoupin 168 182 + 8.3%

Mason 107 113 + 5.6%

Massac 64 64 + 0.0%

Morgan 213 230 + 8.0%

Scott 159 171 + 7.5%

Shelby 141 150 + 6.4%

Wayne 66 66 + 0.0%

Will 156 168 + 7.7%

The average percentage change is +4.6%. The County Board had compared the aggregate equalized assessed valuations for all farmland in Jackson County for 1984 and 1985 to determine whether the increase or decrease was more than 10%. The aggregate figures used were those recorded in the abstracts for Jackson County as the actual assessments upon which taxes were collected. The percentage change from 1984 to 1985 in actual aggregate equalized assessments for each county is as follows:

County 1984 Farmland 1985 Farmland $ Change % Change

recorded preliminary

valuations figures

Carroll 55,193,430 39,670,894 15,522,536 -28%

Cass 35,246,505 28,151,674 7,094,831 -20%

Clinton 25,843,660 13,146,188 12,697,472 -49%

Du Page 8,522,937 6,722,169 1,800,768 -21%

Franklin 18,802,268 7,264,889 11,537,379 -61%

Iroquois 164,138,370 119,404,378 44,733,992 -27%

Jackson 19,046,521 10,218,795 8,827,726 -46%

Jefferson 34,277,389 12,282,459 21,994,930 -64%

Johnson 10,401,055 7,591,016 2,810,039 -27%

Macoupin 84,901,390 62,993,761 21,907,629 -26%

Mason 47,203,230 32,622,293 14,580,937 -31%

Massac 12,724,580 6,810,033 5,914,547 -46%

Morgan 80,187,674 77,517,784 2,669,890 -3%

Scott 24,671,530 17,670,425 7,001,105 -28%

Shelby 73,623,980 55,502,809 18,121,171 -25%

Wayne 48,067,550 33,589,519 14,478,031 -30%

Will 73,624,006 59,140,319 14,483,687 -20%

Total $816,476,075 $590,299,405 $226,176,670 - 28% (avg.)

The Board concluded the County Board’s figures more closely followed the legislative intent as evidenced in the debates concerning Public Act 83—1124. (1984 Ill. Laws 208, eff. June 30, 1984 (amending Ill. Rev. Stat. 1983, ch. 120, par. 501e).) Public Act 83—1124 eliminated the $30-per-acre ceiling for 1982 through 1984 and added the 10% provision at issue in this appeal. The Board noted the legislative debates on Public Act 83—1124 reflected concern for the erosion of the tax bases of local taxing districts caused by the implementation of the 1981 farmland assessment law. The Board stated the debates did not concern expected aggregate assessments as proposed by the plaintiffs, but rather focused on the need for stability in fiscal planning for local governments. The County Board’s preliminary figures revealed the actual change in aggregate assessments in Jackson County from 1984 to 1985 was 46%, while the plaintiffs’ proposed average figures established the change from 1984 to 1985 was only 2.2%.

The Board also found that under plaintiffs’ method of determining the 10% limitation, not one of the 17 counties concerned would have to apply a multiplier to the 1985 assessments. The resulting loss of tax base to Jackson County without a multiplier would be $7,877,820. The loss of tax base for all 17 counties if no multiplier was applied was found to be $226,176,670.

On January 28, 1987, a class action complaint for administrative review was filed in the circuit court for Sangamon County. The complaint was brought by the plaintiffs and the other taxpayers who joined the appeal to the Board. Plaintiffs’ claims were severed from the other claims on August 31, 1988, pursuant to section 2—1006 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2—1006).

The circuit court reversed the Board after reviewing the record and the briefs and hearing oral arguments on November 21, 1988. The circuit court concluded the Board’s decision was “contrary to the plain meaning of section 20e.”

Section 20e of the Act governs assessment of farmland in Illinois. This section provides:

“§20e. The equalized assessed value of each tract of real property constituting a ‘farm,’ as defined in Section 1 of this Act, except tracts subject to assessment pursuant to Section 20g of this Act, which has been used as a farm for the two preceding years, shall be determined pursuant to this Section.
The Department of Revenue shall issue guidelines and recommendations for the valuation of farmland pursuant to this Section in order to achieve equitable assessment of farmland within and between counties.
***
By May 1 of each year, the Department of Revenue shall certify to each County Supervisor of Assessments, County Assessor, or Board of Assessors as the case may be (hereafter referred to as chief county assessing official), and to the County Farmland Assessment Review Committee in each county, the following:
(1) The equalized assessed value per acre of harvested cropland by soil productivity index, calculated by the Department from data supplied by the Farmland Assessment Technical Advisory Board ***:
* * *
(2) A proposed average equalized assessed value per acre of cropland for each individual county, weighted by the distribution of soils by productivity index in the county;
(3) A proposed average equalized assessed value per acre for all farmland in each county, weighted (a) to consider the proportions of all farmland acres in said county which are cropland, permanent pasture and other farmland, and (b) to reflect that cropland shall be valued at the full amount determined in (2) above, permanent pasture shall be valued at Vs of its productivity index equalized assessed value as cropland, and other farmland shall be valued at Ve of its productivity index equalized assessed value as cropland; and
A County Farmland Assessment Review Committee (hereafter referred to as the Committee) shall be established in each county to advise the chief county assessing official with regard to the interpretation and application of the State-certified farmland assessment recommendations and guidelines and the implementation of this Section in the county. ***
By June 1, 1982 and each year thereafter, each chief county assessing official shall present to the Committee the procedure to be used in that county for implementing the Section and equalized assessed valuations by productivity index to be used in that county for the next assessment year. On or about June 1, the Committee shall hold a public hearing, the subject of which shall be the equalized assessed values of farmland proposed by the chief county assessing official and the implementation of the procedures proposed by the chief county assessing official. ***
Cropland, permanent pasture and other farmland shall be defined according to U.S. Census Bureau definitions in use during the assessment year in question. Cropland shall be assessed in accordance with the equalized assessed value of its soil productivity index as certified by the Department and shall be debased to take into account factors including, but not limited to, slope, drainage, ponding, flooding, and field size and shape. *** ***
*** For 1984 and [1985] *** any increase or decrease in the aggregate equalized assessed value of all farmland in any county shall not exceed 10% of the aggregate equalized assessed value of all farmland in such county for the immediately preceding assessment year as calculated pursuant to subsections (1), (2) and (3) of this Section.” (Ill. Rev. Stat. 1985, ch. 120, par. 501e.)

The sole issue presented in this appeal concerns the meaning of a phrase included in section 20e — “aggregate equalized assessed value.” The phrase is not defined in the statute. The plaintiffs insist this phrase must be viewed together with the phrase, “as calculated pursuant to subsections (1), (2) and (3) of this section.” According to the plaintiffs, when viewed together, the figure “aggregate equalized assessed valuation” may be obtained by multiplying the proposed average equalized assessed value per acre for all farmland, as certified by the Department to the County Board (subsection (3)), by the number of acres of farmland in a county. The Board maintains the phrase refers to the aggregate assessed valuation as recorded for the preceding year (1984) in the assessor’s books. According to the Board, the last phrase of the 10% provision is surplus language.

The primary rule of statutory construction is to ascertain and effectuate the legislature’s intent. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 277, 469 N.E.2d 167, 171.) In determining legislative intent, the statute must be read as a whole and all relevant parts must be considered. (People v. Jordan (1984), 103 Ill. 2d 192, 206, 469 N.E.2d 569, 576.) Terms of a statute not specifically defined must be given their ordinary and popularly understood meaning, but they are also construed with reference to the purposes and objectives of the statute. (Niven v. Siqueira (1985), 109 Ill. 2d 357, 366, 487 N.E.2d 937, 942.) Where a statute is susceptible to two interpretations, it is proper to examine sources other than its language for evidence of legislative intent. (Logston, 103 Ill. 2d at 279, 469 N.E.2d at 172.) In this regard, the législative history of the statute is relevant along with the reason for its enactment, the circumstances that led to its adoption, and the ends to be achieved by the legislation. (Logston, 103 Ill. 2d at 279, 469 N.E.2d at 172.) As the supreme court recently stated in Mulligan v. Joliet Regional Port District (1988), 123 Ill. 2d 303, 527 N.E.2d 1264:

“A proper interpretation of a provision cannot simply be based on its language; it must be grounded on the ‘nature, objects and the consequences that would result from construing it one way or the other.’ ” Mulligan, 123 Ill. 2d at 313, 527 N.E.2d at 1269, quoting Carrigan v. Illinois Liquor Control Comm’n (1960), 19 Ill. 2d 230, 233, 166 N.E.2d 574, 576.

The courts have recognized that interpretations by administrative agencies express an informed source for ascertaining legislative intent (Adams v. Jewel Cos. (1976), 63 Ill. 2d 336, 344-45, 348 N.E.2d 161, 165) and, therefore, substantial deference has been accorded to the interpretation of a statute made by an agency charged with the administration of that statute. (Airey v. Department of Revenue (1987), 116 Ill. 2d 528, 536, 508 N.E.2d 1058, 1062.) Where the question presented is “doubtful” or fairly debatable, the administrative interpretation is often controlling. (Legg v. Illinois Fair Employment Practices Comm’n (1975), 28 Ill. App. 3d 932, 939, 329 N.E.2d 486, 491, citing Nye v. Foreman (1905), 215 Ill. 285, 288, 74 N.E. 140, 141.) A determination by an administrative agency will not be disturbed upon review unless contrary to the manifest weight of the evidence. Citizens Utility Co. v. Department of Revenue (1986), 111 Ill. 2d 32, 47, 488 N.E.2d 984, 990; Kennedy Brothers, Inc. v. Property Tax Appeal Board (1987), 158 Ill. App. 3d 154, 159, 510 N.E.2d 1275, 1278-79.

The beginning of the analysis of the 10% limitation provision must focus on the two figures which must be within 10% of each other. The figures are stated as “the aggregate equalized assessed value of all farmland in any county” for 1984 and 1985. (Ill. Rev. Stat. 1985, ch. 120, par. 501e.) Initially, we observe that farmland assessments are set by local assessing officials, not by the Department. (Ill. Rev. Stat. 1985, ch. 120, par. 498.) Section 20e provides the Department shall issue guidelines and recommendations for the valuation of farmland to achieve equitable assessment within and between counties. Section 20e further states that the County Farmland Assessment Review Committee (Committee) shall advise the chief county assessing official with regard to the Department’s guidelines and assessment recommendations. The chief county assessing official presents the Committee with the “equalized assessed valuations by productivity index to be used in that county for the next assessment year.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 120, par. 501e.) If the Committee agrees with the valuations, the chief county assessing official “shall proceed with the farmland assessment process.” (Ill. Rev. Stat. 1985, ch. 120, par. 501e.) Thus, it is clear county assessments are determined by local assessing officials, utilizing the productivity index figures certified by the Department. Ill. Rev. Stat. 1987, ch. 120, par. 501e(1).

On its face, section 20e does not dictate that an assessment is calculated pursuant to subsections (2) and (3) of section 20e. Subsections (2) and (3) refer to proposed averages certified by the Department to the counties and are part of the Department’s “guidelines and recommendations.” However, additional guidelines issued by the Department in a publication known as the Illinois Real Property Appraisal Manual (1988) (Manual) establish the recommended procedure to be used on the local level to achieve equalized assessments for farmland. This court may take judicial notice of this publication as a public record (Finish Line Express, Inc. v. City of Chicago (1978), 72 Ill. 2d 131, 135-36, 379 N.E.2d 290, 291; Ill. Rev. Stat. 1987, ch. 116, par. 43.103); and we elect to do so in this case, given its relevance to the issue before us and despite the fact the Manual was apparently not relied upon by the parties or the Board in the proceedings below. Ru ral Electric Convenience Cooperative Co. v. Illinois Commerce Comm’n (1983), 118 Ill. App. 3d 647, 651, 454 N.E.2d 1200, 1202.

In their briefs and at oral argument, the parties argued the local assessment procedure includes merely taking the certified soil productivity figures (subsection (1) of section 20e) and debasing these figures for slope and erosion, et cetera, to arrive at the equalized assessed value for a parcel of farmland. On the contrary, the process of assessing farmland is more complex. The guidelines in the Manual set out an eight-step procedure, which includes calculating a weighted average productivity index figure for each category of farmland (cropland, pasture, other farmland). This figure is similar to the proposed figure certified by the Department and referred to in subsection (2) of section 20e. The weighted average productivity index figure, calculated locally for each category of farmland, is then used to determine the equalized assessed value per acre for each type of farmland in the county. Thus, the Manual establishes that the equalized assessed valuations are calculated by local assessing officials in accordance with subsections (1), (2), and (3) of section 20e.

Contrary to the Board’s argument, the language “as calculated pursuant to subsections (1), (2), and (3)” is not meaningless and, therefore, must not be omitted in determining the intent behind the 10% limitation provision. As stated, the proposed averages certified by the Department in subsection (2) and (3) are not adopted locally, as suggested by the plaintiffs, as the weighted averages, but are used as guidelines. Indeed, the Department’s regulations establish this fact. In providing procedures for the review of farmland assessments, the regulations state:

"(c) ***
(2) The crop and farmland expected averages certified by the Department are based upon soil types identified within the counties, as well as farmland use. These averages serve as guidelines or starting points for helping the Department evaluate farmland assessment compliance. The Department recognizes that in some instances basic compliance with the Department’s assessed values and procedures may result in substantial deviation from the expected averages as certified.” (86 Ill. Adm. Code §110.165(c)(2), at 10593 (1985).)

Whether the actual aggregate equalized assessed values for 1984 are compared with the actual preliminary aggregate equalized assessed values for 1985 remains to be determined. The legislative debates and the practice recommended by the Department provide some guidance.

The legislative debates on the bill adding the 10% limitation establish the intent behind the provision was to preserve the tax bases of the counties hard hit by the farmland assessment law. The legislative history of Public Act 83—1124 reveals the legislators were concerned with the rise and fall of farmland assessments. Identified in the debates is Senate Bill 1462 (83d Ill. Gen. Assem., Senate Bill 1462, 1984 Sess.), the bill’s sponsor, Senator Maitland, introduced the bill on third reading as follows:

“Senate Bill 1462 is *** an attempt to address what has become a very serious problem in many of our school districts in the State, especially in those school districts where a preponderance of the property comes from *** farm land. As you know, we passed the farm land assessment bill in 1977 and dramatically changed the bill in 1981, and the farm land assessment bill is doing exactly what it was designed to do, it’s working accurately and properly. As a matter of fact, it’s probably the most accurate way of assessing- property that we have in the State, but I guess one might say it’s working a bit too well in that *** during these years of declining farm income, and for those of you who aren’t aware of it, farm land income has dropped dramatically the last two or three years. As a consequence of this, the assessment in those rural school districts has dropped dramatically also, and those same school districts, I am sure you are aware, get very little State aid and has created a tremendous burden on many rural school districts. Over the past year, *** we have been working to try to devise a way in which we can stabilize, if you will, the rise and fall of assessed valuation of farm land. Senate Bill 1462 is an attempt to do that. It will limit for 1984 and beyond the rise or fall of the assessed valuation of farm land in the county by no more than ten percent. We think this is a *** a good approach, keeping in mind that some school districts stood to lose twenty-five, thirty, thirty-five percent of their assessed valuation. This is an attempt to resolve that problem.” (83d Ill. Gen. Assem., Senate Proceedings, May 22, 1984, at 65-66 (statements of Senator Maitland).)

In the House, Representative Pierce’s comments were similar to Senator Maitland’s:

“I am convinced of the necessity of this legislation because farm land values have been falling, especially when we look at the past years that we use. And the only way to protect the schools in the rural areas and local government units in the rural areas is to put this 10% floor on reduction in assessed valuation. Four or five years from now, when hopefully farm values are booming again in Illinois and zooming up, some future legislators may want to remove the 10% limitation in order to get back their assessed valuation in their school districts and their local government units. *** It protects the school children of the state in our rural areas. It protects local government units in our rural areas from erosion of their tax base, and it minimizes the extreme effects that the farm land assessment bill has had on reduced assessments due to the loss of productivity on our farms.” 83d Ill. Gen. Assem., House Proceedings, June 14, 1984, at 9 (statements of Representative Pierce).

The plaintiffs strenuously urge resort to the legislative debates is unnecessary because the language of section 20e is unambiguous: It directs the comparison of the Department’s certified values. Moreover, plaintiffs urge these proposed average figures effectuate legislative intent because these figures represent real changes in farmland values from year to year. Plaintiffs’ position is not tenable. The Department’s certified figures are not equalized assessed values for farmland in any county, but are used in the process of calculating the equalized assessed values. Additionally, plaintiffs read the word “aggregate” out of the 10% provision and offer no logical explanation for disregarding it. Plaintiffs are correct that the 10% provision does not include the word “actual” before the term "aggregate.” However, the plaintiffs repeatedly stress the Department’s proposed figures should be compared. There is no evidence in the statute, its legislative history, or the Department’s publications that this was intended.

The Board submits the Department and all county boards agree that the actual aggregate assessed valuations for 1984 and 1985 are compared to determine the 10% limitation. A publication issued by the Department in 1986, Farmland Assessment Law of 1981 (1986), and made part of the record before us, establishes the Department directs county assessing officials to use the actual, aggregate assessments for 1984 and 1985. Moreover, in this publication, the Department rejected the very argument plaintiffs present to this court, in large part because of the significant loss of tax base that would result in many counties if certified values were used.

Additionally, we find, as did the Board, that other provisions in section 20e evidence an intent that the actual figures should be compared. Specifically, in computing the 1984 assessment figures, section 20e provides:

“In order to attain the limitation set forth in the following paragraph, for the 1984 assessments only, the Department shall certify to each Board of Review or Board of Appeals a factor to be multiplied times the 1983 actual equalized assessed valuation of each parcel of farmland within the county as determined in accordance with this Section prior to enactment of this amendatory Act of 1984. That factor shall be the quotient of the proposed county average equalized assessed value per acre for the county weighted as prescribed in (3) above in this section divided by the 1983 actual average equalized assessed valuation per acre of farmland in that county.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 120, par. 501e.)

Likewise, for the 1986 and 1987 assessment years, the 10% limitation on a county basis was eliminated and substituted with a 10% decréase provision on a taxing district basis. This provision further evidences the intent of the legislature, as expressed in the debates on Public Act 83—1124, to preserve the tax base for local school districts and taxing districts. It provides as follows:

“For the 1986 and 1987 assessment years, the equalized assessed values certified by the Department as provided in subsection (1)(c) of this section for the 1986 assessment year shall be used by local assessing officials, without limitation as to the increase or decrease in the aggregate equalized assessed valuation of farmland in the county. However, if there is more than a 10% decrease in the 1986 aggregate equalized assessed value of property in any taxing district from the aggregate equalized assessed value of property in such taxing district for the 1985 assessment year due to loss in the aggregate equalized assessed value of farmland, a sum equal to the amount of taxes not received by such district because of the decrease in its aggregate equalized assessed value of farmland in excess of 10% of its total aggregate equalized assessed value from 1985 shall be paid to such taxing district by either the State Board of Education with respect to school districts or the Department of Revenue with respect to other taxing districts.” Ill. Rev. Stat. 1987, ch. 120, par. 501e.

In further support of their position, plaintiffs argue the Board’s method of comparing actual aggregate equalized assessed values for 1984 and 1985 wholly fails to take into account changes in land use from year to year. Specifically, plaintiffs suggest farmland developed for commercial use results in a drop in aggregate farmland values while at the same time it causes an increase in the county-wide assessed value of commercial land. Thus, there appears to be a decrease in farmland assessments when, in fact, no such decrease exists. Plaintiffs maintain using the proposed averages certified by the Department avoids this result where a single acreage figure for both years is multiplied alternately by the averages certified each year. Such a calculation would yield the “true” increase or decrease in aggregate assessments for the farmland. The Board counters the plaintiffs’ argument by stating that full implementation of use-value assessments was contemplated for 1986, not 1985.

Plaintiffs’ argument on change in use of land is flawed. The Department’s regulations demonstrate the certified figures are guidelines and substantial deviations from these figures may result in the assessment process. Thus, the use of certified figures cannot give a “true” representation of increases and decreases in aggregate assessments. Further, we reject the possibility plaintiffs suggest: that any change of use of property is not taken into account under the Board’s approach. The 1986 publication states before comparing the 1984 and 1985 figures, the aggregate farmland equalized assessed values are adjusted to reflect additions or deletions of farmland from year to year.

We find the decision of the Board follows the expressed intent of the legislature in enacting section 20e. Taxes are extended based on the assessments listed in the assessment books. (Kennedy Brothers, 158 Ill. App. 3d at 162, 510 N.E.2d at 1281; County of Will v. Will County Board of Review (1986), 150 Ill. App. 3d 232, 233, 502 N.E.2d 29, 30.) The loss of tax base for 1985 to Jackson County, without the application of a multiplier, would be close to $8 million. Moreover, in Jackson County, the certified figures for 1985 bear little relation to the actual assessment figures. The proposed average equalized assessed value per acre for all farmland in this county was certified at $46. The actual figures before application of the multiplier placed this figure at $36.97. Despite the apparent inequities which may have resulted in these assessment years, the fact remains that there is nothing in legislative history or the statute itself to support plaintiffs’ position for the assessment years in question.

Accordingly, we reverse the circuit court of Sangamon County and affirm the decision of the Board and the County Board to apply a multiplier for the 1985 assessments.

Circuit court reversed; Board affirmed.

GREEN and STEIGMANN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE KNECHT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN EDWARD SANDERS, Defendant-Appellant.
    Fourth District
    No. 4—89—0200
    Opinion filed December 7, 1989.

      Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

The defendant, John Edward Sanders, appeals from his conviction for aggravated criminal sexual assault. (Ill. Rev. Stat. 1987, ch. 38, par. 12—14.) We affirm.

On April 26, 1988, the defendant was charged by information in Vermilion County with two counts of aggravated criminal sexual assault. (Ill. Rev. Stat. 1987, ch. 38, par. 12—14.) The charged misconduct was that the defendant, who was 17 years of age or older, committed an act of sexual penetration with the victim, S.J., who was under 13 years of age, on two separate occasions in the fall of 1987. (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(b)(1).) On December 14, 1988, a jury found the defendant guilty on both counts of aggravated criminal sexual assault. On March 3, 1989, the Vermilion County circuit court sentenced the defendant to concurrent nine-year terms of imprisonment.

S.J. testified she was born on December 5, 1974. She met the defendant in October of 1987. They engaged in unprotected sexual relations on two separate occasions. She became pregnant and gave birth to a child on July 5, 1988.

S.J. offered conflicting testimony on her age at trial. S.J. stated she had probably been 12 years old during the entire sexual contact period on direct examination. On cross-examination, however, S.J. conceded she could have been 13 years old during that period. Attributing the conflicts in her testimony to inattentiveness and nervousness, S.J. confirmed she had to have been 12 years old during the entire sexual contact period because she was already pregnant on her thirteenth birthday.

Gene Woodard (Woodard), the investigating police officer, testified regarding his interview with S.J. in February of 1988. S.J. stated she was then 3V2 to 4 months pregnant. She named the defendant as the sexual partner responsible for her pregnancy.

Woodard also testified regarding his interview with the defendant in February of 1988. The defendant voluntarily waived his Miranda rights. The defendant stated he had engaged in unprotected sexual relations with S.J. on two separate occasions in the fall of 1987. The defendant next stated he had known of the true age of S.J. on only the second occasion. The defendant stated it was possible for him to have impregnated S.J.

The defendant contends he was not proved guilty beyond a reasonable doubt of aggravated criminal sexual assault. In support of this contention, he asserts the evidence was conflicting on the age of the victim. The defendant therefore submits his conviction must be reversed. We disagree.

In sex offense cases, the issue of criminal culpability often depends on the credibility of the witnesses at trial. Credibility is a determination resting within the exclusive province of the jury. The jury will simultaneously resolve any testimonial conflicts in determining the credibility of the witnesses. (People v. Collins (1985), 106 Ill. 2d 237, 261-62, 478 N.E.2d 267, 277.) A court of review will reverse the determination of the jury only when the evidence is so improbable or unsatisfactory as to raise a reasonable doubt of criminal culpability. People v. Boyd (1980), 87 Ill. App. 3d 978, 983, 409 N.E.2d 392, 397.

Aggravated criminal sexual assault consists of three elements: (1) a defendant who is 17 years of age or older; (2) a victim who is under 13 years of age; and (3) an act of sexual penetration. (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(b)(1); People v. Roy (1970), 124 Ill. App. 2d 52, 61, 260 N.E.2d 5, 9.) The sole element in dispute is the age of the victim.

We believe the evidence was sufficient for the jury to have reasonably found the defendant guilty of the charged misconduct. S.J. testified she had been 12 years old during the entire sexual contact period. Her credibility as a witness was not seriously undercut even though the defense may have assailed her testimony on cross-examination. (See People v. Voight (1979), 72 Ill. App. 3d 472, 474-76, 391 N.E.2d 219, 221-22.) More importantly, the age testimony of S.J. was corroborated by an important and independent evidentiary factor: the voluntary statement of the defendant on his sexual relationship with S.J. and his admission he knew S.J. was 12 when he engaged in sexual relations with her the second time. We also note the successful delivery by S.J. of an apparently full-term child in July 1988. (See Shockley v. State (Tenn. App. 1978), 585 S.W.2d 645, 649.) Thus, we conclude the prosecution established the elements of aggravated criminal sexual assault beyond a reasonable doubt at trial.

The defendant also contends he was denied his constitutional right to confront the witnesses against him. (U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8; see also Pointer v. Texas (1965), 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065; People v. Tennant (1976), 65 Ill. 2d 401, 358 N.E.2d 1116.) In support of this contention, he asserts it was necessary to cross-examine S.J. regarding other sexual partners to effectively test her credibility as a witness. The defendant contends his conviction must be reversed. We disagree.

The record discloses the defense attempted to question S.J. regarding the possibility some other sexual partner could have been responsible for her pregnancy. The prosecution immediately objected to the question and ultimately moved for a mistrial on the basis of the rape-shield statute. (Ill. Rev. Stat. 1987, ch. 38, par. 115—7.) The circuit court sustained the objection of the prosecution. The defense then made an offer of proof that S.J. had engaged in sexual relations with a person other than the defendant in February of 1988.

The rape-shield statute provides in pertinent part:

“In prosecutions for aggravated criminal sexual assault *** the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused.” (Ill. Rev. Stat. 1987, ch. 38, par. 115-7(a).)

The underlying policy is twofold. First, the statute prevents the defendant from harassing and humiliating the complaining victim with irrelevant evidence of her reputation for chastity or of specific prior sexual activity with third persons. Second, the statute promotes effective law enforcement because victims will be more likely to report sexual offenses when the details of their prior sexual activity cannot be made public. People v. Cornes (1980), 80 Ill. App. 3d 166, 175-76, 399 N.E.2d 1346, 1352-53; People v. Ellison (1984), 123 Ill. App. 3d 615, 626, 463 N.E.2d 175, 183-84.

In criminal trials, the defendant is generally accorded wide latitude in his cross-examination of the witnesses for the prosecution. Cross-examination “is not [an] absolute [right,] and may, in appropriate cases, bow to accommodate other legitimate [evidentiary] interests in the criminal trial process.” (Chambers v. Mississippi (1973), 410 U.S. 284, 295, 35 L. Ed. 2d 297, 309, 93 S. Ct. 1038, 1046.) Accordingly, a ruling of the circuit court limiting the scope of cross-examination will not be altered on review absent an abuse of discretion resulting in manifest prejudice to the defendant. People v. Neafus (1976), 39 Ill. App. 3d 365, 371, 353 N.E.2d 68, 73-74.

The defendant did not demonstrate the relevance of the excluded testimony to his theory of defense in this case. The offer of proof made by the defense only refers to the sexual activity of S.J. in February of 1988. S.J. was 31/a to 4 months pregnant at that time. The offer of proof also makes vague reference to exploring whether S.J. had sexual relations with the same person she had contact with in February 1988, or someone else, “prior to that time.” How is the trial court to intelligently assess an offer of proof unless the offer clearly suggests the defendant’s focus? In order to overcome the prohibition of the rape-shield statute, a defendant must demonstrate the relevance of the testimony sought to be elicited.

S.J.’s sexual activity in February 1988 had no connection to the charged offense or to the birth of a child in July 1988. Sexual activity “prior to that time” could be relevant but the offer of proof was not adequate and the record does not support such a line of inquiry. The ruling of the circuit court limiting the scope of cross-examination did not deny the defendant of his constitutional right to confrontation.

The conviction judgment of the Vermilion County circuit court is affirmed.

Affirmed.

LUND and GREEN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM LEONARD GALLINGER, Defendant-Appellant.
    Fourth District
    No. 4—89—0077
    Opinion filed December 6, 1989.

      Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

The defendant, William L. Gallinger, appeals from a contempt citation imposed in a probation revocation proceeding. We reverse and remand.

In April 1988, the defendant pleaded guilty to the felony offense of aggravated battery. (Ill. Rev. Stat. 1987, ch. 38, par. 12—4(b)(6).) The circuit court sentenced the defendant to a 30-month period of probation.

In October 1988, the defendant was found guilty of a misdemeanor offense of battery. (Ill. Rev. Stat. 1987, ch. 38, par. 12—3.) The circuit court sentenced the defendant to a 12-month term of supervision.

The prosecution filed a petition to revoke the probation of the defendant based on the misdemeanor battery offense. At the revocation proceeding, through judicial notice of the finding of guilt as to misdemeanor battery and disposition of supervision against the defendant, the circuit court found the prosecution had proved the allegations of the petition. As a sanction for this probation violation, the circuit court found defendant in contempt and imposed a five-month term of incarceration in the county jail. Defendant appeals, and we reverse.

The prosecution limits its argument on appeal to a contention the defendant has not perfected his appeal from the contempt citation entered in the probation revocation proceeding. See People v. Harvey (1972), 5 Ill. App. 3d 499, 285 N.E.2d 179.

A party perfects his appeal by filing a timely notice of appeal in the circuit court. (107 Ill. 2d Rules 301, 303, 606.) The notice of appeal must state both “the judgment *** appealed from and the relief sought from the reviewing court.” (107 Ill. 2d R. 303(c)(2).) Accordingly, the reviewing court has jurisdiction over only those issues properly stated in the notice of appeal. Harvey, 5 Ill. App. 3d at 502, 285 N.E.2d at 181.

When the defendant filed his notice of appeal, he erroneously stated the judgments appealed from as “[r]evocation of [p]robation and sentence.” The defendant apparently intended to appeal from the contempt citation entered in a probation revocation proceeding.

A notice of appeal is liberally construed in the absence of prejudice to the nonappealing party. The notice of appeal here, considered as a whole, fairly informs the prosecution of the issues on review. This sort of technical defect in the form of the notice of appeal is not fatal to the jurisdiction of the reviewing court. Dorsey v. Spencer (1985), 130 Ill. App. 3d 1080, 1086-87, 475 N.E.2d 282, 286.

The defendant contends he was not accorded the procedural formalities applicable to indirect criminal contempt proceedings. See People v. Javaras (1972), 51 Ill. 2d 296, 281 N.E.2d 670.

The circuit court h^s an inherent power to punish litigants for contempt in legal proceedings. This power allows the circuit court to maintain authority in both the administration and the execution of its judicial duties. (Javaras, 51 Ill. 2d at 299, 281 N.E.2d at 671.) We decline the defendant’s request to hold any time a defendant violates the terms of his probation by committing a criminal offense, the alleged violation must be prosecuted as provided by the Unified Code of Corrections and not by contempt. The existence of a statutory remedy does not foreclose the use of the inherent power of contempt. The contempt power of the circuit court is a proper sanction for a violation of probation. People v. Patrick (1980), 83 Ill. App. 3d 951, 404 N.E.2d 1042.

In this case the alleged contempt is based on the misdemeanor battery disposition of supervision. Although the defendant may later be discharged and have that disposition dismissed (Ill. Rev. Stat. 1987, ch. 38, par. 1005—6—3.1(f)), that does not foreclose the prosecution from seeking revocation of his probation for the underlying criminal misconduct. This is not a situation where defendant has successfully completed a term of supervision and the disposition has been improperly considered for impeachment (People v. Schuning (1985), 106 Ill. 2d 41, 476 N.E.2d 423) or at sentencing (People v. Calvert (1981), 100 Ill. App. 3d 510, 426 N.E.2d 1218).

At the revocation hearing, the court took judicial notice of the misdemeanor battery disposition of supervision. The court found the prosecution had proved the petition to revoke probation by the evidence presented. It is clear from the remarks of counsel, and the trial court’s observations, the revocation proceeding was conducted using the preponderance of the evidence standard.

The State requested the finding of contempt and asked for a 90-day term of incarceration for defendant. Rather than revoking defendant’s probation and sentencing him anew or modifying the conditions of probation (Ill. Rev. Stat. 1987, ch. 38, par. 1005—6—4(e)), the circuit court granted the State’s request and found defendant in contempt for his failure to abide by the terms of his probation and sentenced him to five months’ incarceration in the McLean County jail.

Although the circuit court did not characterize the nature of the contempt, the litigants concede the citation is one of indirect criminal contempt. (See People v. L.A.S. (1986), 111 Ill. 2d 539, 490 N.E.2d 1271; In re J.L.D. (1989), 178 Ill. App. 3d 1025, 534 N.E.2d 190.) The alleged contempt, a violation of probation, was indirect because it occurred outside the presence of the court. It is criminal contempt because the citation was intended to punish the defendant for his disregard of the authority of the court. People v. Mowery (1983), 116 Ill. App. 3d 695, 701-03, 452 N.E.2d 363, 368-69.

In a proceeding to punish for indirect criminal contempt, the defendant must be accorded all fundamental procedural protections under due process of law. (L.A.S., 111 Ill. 2d at 543-44, 490 N.E.2d at 1273.) Specifically, the defendant is entitled (1) to notice of the charges against him by citation, information, or rule to show cause; (2) to file an answer to the charges; (3) to the assistance of legal counsel; (4) to defend against the charges in a full hearing; and (5) to be proved guilty beyond a reasonable doubt. (Javaras, 51 Ill. 2d at 300, 281 N.E.2d at 672; Marcisz v. Marcisz (1976), 65 Ill. 2d 206, 209-10, 357 N.E.2d 477, 479.) Absent such procedural protections, the reviewing court will reverse the contempt citation against the defendant on appeal. J.L.D., 178 Ill. App. 3d at 1031, 534 N.E.2d at 194; People v. Boucher (1989), 179 Ill. App. 3d 832, 535 N.E.2d 56.

The defendant here was not accorded the procedural formalities applicable to indirect criminal contempt proceedings. First, the prosecution did not advise the defendant in the revocation petition of the possibility he could be subject to punishment for contempt. (People v. Waldron (1986), 114 Ill. 2d 295, 303-04, 500 N.E.2d 17, 21.) Second, the prosecution did not prove beyond a reasonable doubt the defendant wilfully violated his probation in a full hearing. (J.L.D., 178 Ill. App. 3d at 1031-33, 534 N.E.2d at 194-95.) It was improper for the circuit court to enter the contempt citation against the defendant in the probation revocation proceeding because notice was lacking and the prosecution was not held to the higher burden of proof required in a proceeding for indirect criminal contempt.

It appears a contempt determination was viewed as a lesser sanction than a termination of probation and sentencing on the original charge. While contempt proceedings may be so viewed in a practical sense in the trial court, this practice overlooks the due process requirements for a finding of indirect criminal contempt.

If a prosecutor actually prefers to seek a determination of indirect criminal contempt, then a defendant must be afforded all fundamental procedural protections under due process of law. As we noted in People v. Mowery (1983), 116 Ill. App. 3d 695, 704, 452 N.E.2d 363, 370:

“The inherent power of contempt is a powerful one; it is not to be used lightly nor when other adequate remedies are available; if it is used, it must conform strictly to the dictates of the law.”

While we adhere to the position that the contempt power of the court may be used to sanction a probation violation, the broad powers of the court under statutory law (Ill. Rev. Stat. 1987, ch. 38, par. 1005— 6—4(e)) are better suited for the enforcement, management, and modification of a sentence of probation.

The contempt finding and sentence against the defendant are reversed, and this cause is remanded for further proceedings.

Reversed and remanded.

GREEN and McCULLOUGH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUSSELL B. HILL, Defendant-Appellant.
    Fourth District
    No. 4—89—0108
    Opinion filed December 6, 1989.
    Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Nancy Owen, State’s Attorney, of Charleston (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

The defendant, Russell Hill, appeals from the imposition of a monthly probation supervision fee as a condition of his probation. We affirm.

Following a bench trial in the circuit court of Coles County, the defendant was found guilty as charged on two traffic citations: (1) driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501(a)(2)); and (2) failure to yield the right-of-way (Ill. Rev. Stat. 1987, ch. 95½, par. 11—906). The circuit court sentenced the defendant to one year of probation upon the conditions he serve a 60-day jail term; pay court costs, public defender fees, and monthly probation supervision fees; and participate in any recommended alcohol treatment programs. The probation order entered by the trial court specifically imposes a $25 monthly probation supervision fee.

The sole issue on review is whether the circuit court abused its discretion in imposing the maximum monthly supervision fee on the defendant as a condition of his probation. Defendant also apparently contends the probation authority or the circuit clerk may have determined the amount of the probation fee. The probation order signed by the court clearly demonstrates the fee was determined and imposed by the court.

We note the defendant has waived review of this issue by his failure to either expressly argue his financial inability to pay the supervision fee or to object to the imposition of that fee at his sentencing hearing. (People v. Boatright (1985), 137 Ill. App. 3d 888, 889-90, 486 N.E.2d 926, 927.) As an exercise of our judicial discretion, we choose to address the merits of this issue on review. People v. Nash (1989), 183 Ill. App. 3d 924, 932, 539 N.E.2d 822, 827.

Section 5—6—3 of the Unified Code of Corrections (Code) governs the conditions that may be imposed as part of probation. The imposition of a probation fee became effective on January 1, 1989, by Public Act 85—1256 (1988 Ill. Legis. Serv. 2183, 2184 (West); 1988 Ill. Laws 2535). The Code provides in pertinent part:

“(g) The court shall impose upon an offender sentenced to probation as a condition of such probation, a fee not to exceed $25 for each month of probation supervision ordered by the court, unless after determining the inability of the person sentenced to probation to pay the fee, the court assesses a lesser fee.” (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005-6-3(g).)

Defendant was sentenced on January 13, 1989.

The underlying rationale for the monthly supervision fees is, in part, to fund the probation system. (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005—6—3(g).) Such fees will permit the probation system to responsibly meet the individualized needs of criminal defendants on probation.

The circuit court is not required to make a specific finding the criminal defendant has either the ability or the financial resources to pay the monthly supervision fee. To the contrary, such a finding is implicit in the imposition of the probation supervision fee as a condition of probation. (See People v. Bishop (1980), 81 Ill. App. 3d 521, 524, 401 N.E.2d 648, 650.) Nor is the circuit court required to conduct a separate hearing to determine defendant’s ability to pay the fee.

The record also supports a finding the defendant has the ability to pay the maximum monthly probation supervision fee. The circuit court had the presentence report on the defendant before it at the sentencing hearing. The defendant did not object to the accuracy of that report. The presentence report lists the financial resources of the defendant as follows: (1) medical disability income of approximately $400 per month; (2) living expenses of approximately $150 per month; and (3) debt of approximately $760 for child support. The defendant testified he was buying a home and he owned a vehicle. The State recommended a monetary fine as a condition of probation. Defense counsel did not object to the imposition of a fine and conceded a $100 public defender fee would be appropriate.

The trial court was well aware of defendant’s financial situation and chose not to impose a fine. It did impose court costs and the maximum monthly probation supervision fee.

The circuit court did not abuse its discretion in imposing the maximum monthly supervision fee on the defendant as a condition of his probation, and the sentence of the Coles County circuit court is accordingly affirmed.

Affirmed.

SPITZ and GREEN, JJ., concur.


author: JUSTICE STEIGMANN

text:
    LINDSEY DAUGHERTY, Plaintiff, v. PHILLIP H. BLAASE, Defendant-Appellee (Rockford Mutual Insurance Company, Plaintiff-Appellant).
    Fourth District
    No. 4—89—0239
    Opinion filed December 14, 1989.

      Gregory C. Ray and Paul G. Prendergast, both of Craig & Craig, of Mattoon, for appellant.
    Edward E Ruberry, Elizabeth A. Pitrof, and Darrell Gerard-Marc Noga, all of Brinton, Bollinger & Ruberry, of Chicago, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiffs, Lindsey Daugherty (Daugherty) and Rockford Mutual Insurance Company (Rockford), appeal the trial court’s invalidation of the assignment of a lawsuit from Daugherty to Rockford. Specifically, Daugherty assigned to Rockford any professional negligence claims Daugherty could bring against defendant, Philip Blaase (Blaase), an insurance broker.

We reverse.

Daugherty purchased a public liability insurance policy from Rockford with a $100,000 limit and a $1 million umbrella liability policy. These policies were to provide Daugherty with indemnification for damages for which he was responsible as a result of tort liability to a third person. They were purchased through Blaase. The umbrella liability policy would have indemnified Daugherty for losses of between $500,000 and $1 million. Thus, a $400,000 “coverage gap” existed in Daugherty’s insurance protection.

During the period of coverage, Daugherty was involved in an automobile accident with Rose M. Smith (Smith). Smith sued Daugherty for damages arising out of the accident, and Rockford settled the claim. The settlement agreement provided for an up front lump-sum payment of $310,000, with periodic payments of $3,000 (adjusted annually) for the life of Smith. Thus, the settlement exceeded Rockford’s $100,000 limit, invading the “coverage gap.”

In consideration of Rockford’s settlement with Smith beyond Rockford’s liability limit, Daugherty assigned to Rockford all professional negligence claims he had against Blaase. Rockford’s settlement with Smith took place before any judgment in favor of Smith was entered against Daugherty. When Rockford attempted to litigate the malpractice action, Blaase responded by asserting that the assignment of Daugherty’s lawsuit to Rockford was void. The trial court agreed with Blaase and granted summary judgment in his favor.

Rockford appeals that judgment. At issue is (1) whether Daugherty incurred any damages as a result of Blaase’s alleged negligence, a prerequisite to the assignment of Daugherty’s claim against Blaase to Rockford, and (2) whether an action based on insurance broker malpractice is assignable.

In its order granting summary judgment, the court determined that Daugherty sustained no damages as a result of Blaase’s alleged professional negligence. Alternatively, the court reasoned that claims for pecuniary loss resulting from Blaase’s alleged professional negligence are not assignable. The court concluded that Daugherty’s assignment to Rockford of his malpractice action was void and of no effect.

When reviewing the trial court’s entry of summary judgment, this court has to determine first whether the trial court correctly ruled that no genuine issue of material fact had been raised. If none was raised, then this court must determine as a matter of law whether summary judgment was correctly entered based on the uncontroverted facts. (Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17, 21, 414 N.E.2d 865, 868; Murphy v. Rockford, (1977), 55 Ill. App. 3d 695, 698, 371 N.E.2d 260, 263.) Rockford does not challenge the court’s finding that no genuine issue of material fact was present; instead, Rockford challenges the court’s finding that, as a matter of law, the assignment was invalid.

Illinois law mandates that an assignor actually or potentially possess the entity to be assigned. (Town & Country Bank v. Country Mutual Insurance Co. (1984), 121 Ill. App. 3d 216, 218, 459 N.E.2d 639, 640, citing North Chicago Street R.R. Co. v. Ackley (1897), 171 Ill. 100, 49 N.E. 222.) Daugherty argues that before he assigned his action to Rockford, he was potentially exposed in the form of the Smith lawsuit to a pecuniary loss due to Blaase’s negligence. As a result, Daugherty asserts that the assignment of the professional negligence claims against Blaase was valid.

No Illinois case has ever addressed this issue. However, a recent seventh circuit diversity case does shed some light. In Hartford Casualty Insurance Co. v. Argonaut-Midwest Insurance Co. (7th Cir. 1988), 854 F.2d 279, a patient at Northwest Hospital in Chicago, Mrs. Tannebaum, sued the hospital, two physicians, and a nurse for medical malpractice. The hospital’s insurer, Argonaut-Midwest Insurance Company, refused to defend one of the physicians, Dr. Rosenberg, claiming that he was not an employee of the hospital. As a result, Dr. Rosenberg’s personal insurer, Hartford Casualty, agreed to defend him in the malpractice action.

At trial, the defendants were found jointly and severally liable for $9 million. Dr. Rosenberg was covered for only $1 million under his Hartford policy. Hartford agreed not only to pay Mrs. Tannebaum $1 million on behalf of Dr. Rosenberg, but also to contribute another $1 million to a settlement of the judgment for $8 million. In return, Hartford received an assignment of Dr. Rosenberg’s claim against Argonaut-Midwest.

When Hartford attempted to collect $1 million from Argonaut-Midwest (after it belatedly conceded that Dr. Rosenberg was covered by the policy it issued to Northwest Hospital), the Federal district court granted summary judgment in favor of Argonaut-Midwest (see Hartford Casualty Insurance Co. v. Argonaut-Midwest Insurance Co. (N.D. Ill. 1987), 664 F. Supp. 373) on the ground that Dr. Rosenberg’s assignment to Hartford was against the public policy of Illinois. Hartford appealed.

The seventh circuit reversed and held that Dr. Rosenberg’s assignment to Hartford of his claim against Argonaut-Midwest was appropriate under Illinois law. The court’s opinion reveals that the court believed only two arguments merited discussion. Whether Dr. Rosenberg suffered a potential pecuniary loss was not among them. Hartford, 854 F.2d at 281.

We acknowledge that the Hartford case is factually distinguishable in two respects from the present case. First, Dr. Rosenberg’s claim against Argonaut-Midwest was not based on professional malpractice, but instead was based upon that insurance company’s refusal to defend and to indemnify Dr. Rosenberg. Second, the underlying malpractice case against Dr. Rosenberg was settled only after judgment was entered against him and in favor of Mrs. Tannebaum; not before, as is true in the present case.

In its reasoning in Hartford, the seventh circuit cited the presumption in favor of enforcing contracts. The court further noted the mutual advantages of the assignment and commended the insurance company’s willingness to settle a claim when it was not obligated to do so. Last, the court determined that Illinois courts have preferred suits between insurance companies as opposed to those initiated by insureds. Hartford, 854 F.2d at 281-83.

Three out-of-State decisions similarly concern assignments made after a judgment was levied against the assignor. (Lowry v. Black Hills Agency, Inc. (8th Cir. 1975), 509 F.2d 1311; Troost v. Estate of DeBoer (1984), 155 Cal. App. 3d 289, 202 Cal. Rptr. 47; Fleming v. Torrey (S.D. 1978), 273 N.W.2d 169.) Again, however, these cases fail to address whether a potential pecuniary loss was threatened. Like Hartford, they also do not address whether the assignment was valid.

We hold that an insured may assign a cause of action to an insurance company in consideration of the insurance company’s settlement before judgment of a claim against the insured. In the absence of fraud or bad faith, a claim assigned prior to judgment constitutes a sufficient potential claim to make the assignment valid. We believe that permitting assignments between an insured and an insurance company both encourages the early settlement of lawsuits and relieves our overburdened court system. Accordingly, Daugherty’s assignment to Rockford does not fail because a judgment had not been entered against Daugherty prior to the assignment.

The second issue in this case is whether claims based on the alleged professional negligence of an insurance broker are assignable. No Illinois court has resolved this question. Three out-of-State courts have dealt with insurance agent malpractice cases without directly deciding the validity of this cause of action. Lowry v. Black Hills Agency, Inc. (8th Cir. 1975), 509 F.2d 1311; Troost v. Estate of DeBoer (1984), 155 Cal. App. 3d 289, 202 Cal. Rptr. 47; Fleming v. Torrey (S.D. 1978), 273 N.W.2d 169.

Defendant maintains that the trial court acted properly in viewing the malpractice claim at issue as similar to a legal malpractice claim, which is nonassignable due to its personal nature. Plaintiffs disagree and contend that the relationship between an insurance broker and the insurance broker’s client is far less personal than that between an attorney and the attorney’s client.

Illinois courts have outlined several considerations which render legal malpractice claims unassignable. (Clement v. Prestwick (1983), 114 Ill. App. 3d 479, 481, 448 N.E.2d 1039, 1041; Christison v. Jones (1980), 83 Ill. App. 3d 334, 339, 405 N.E.2d 8, 11.) The most important of these considerations are the confidentiality of the lawyer-client relationship, the personal nature of the relationship, the potential degradation of the legal profession, and the potential flood of litigation.

None oi these considerations, however, is relevant to an action for insurance agent malpractice. No authority recognizes the confidentiality of the broker-insured relationship. Furthermore, an insurance broker shares a business relationship with his client, not a “personal” one. We believe the insurance industry will not be debased by this type of lawsuit. Instead, the public will benefit from the opportunity to redress “coverage gap” errors. Finally, we view the concern about a potential flood of litigation as groundless. Accordingly, we conclude that insurance broker malpractice claims are assignable and, thus, Daugherty’s assignment to Rockford of his claim against Blaase was valid.

For the reasons stated, the judgment of the circuit court is reversed, and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

SPITZ and McCULLOUGH, JJ., concur.


author: JUSTICE SPITZ

text:
      In re MARRIAGE OF SHEILA MAE McGARRITY, Petitioner-Appellant, and BRIAN DOUGLAS McGARRITY, Respondent-Appellee.
    Fourth District
    No. 4—89—0433
    Opinion filed December 14, 1989.

      Randall B. Ehlers, of Ehlers Law Firm, of Bloomington, for appellant.
    Susan Butler, of Morton, for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

On December 21, 1988, the trial court awarded Sheila Mae McGarrity (petitioner) and Brian Douglas McGarrity (respondent) a judgment for dissolution of marriage. The parties entered into a property settlement agreement and joint parenting agreement in which petitioner was to have custody of their child. The court accepted these agreements on April 12, 1989. However, the parties reserved for the court the issue of which parent would be awarded the dependency exemption for Federal income tax purposes. After a hearing, the court awarded the dependency deduction to respondent. Petitioner now appeals.

At issue is whether a trial court may award the Federal dependency exemption to the noncustodial parent. Petitioner claims that section 152(e) of the Internal Revenue Code (Code) (26 U.S.C. § 152(e) (Supp. IV 1986)) provides that the custodial parent automatically receives the dependency exemption unless that parent signs a waiver of the exemption. Because petitioner is the custodial parent, and has not signed a waiver, she argues that the trial court erred when it awarded respondent the exemption. Alternatively, petitioner argues that the trial court abused its discretion in awarding respondent the deduction.

Respondent contends that section 152(e) of the Code does not divest State trial courts of jurisdiction to award dependency exemptions in the context of dissolution of marriage proceedings. Respondent further argues that petitioner agreed to allow the trial court to decide who received the deduction and that the trial court did not abuse its discretion in awarding the deduction.

Section 152(e) of the Code provides in pertinent part:

“(1) Custodial parent gets exemption Except as otherwise provided in this subsection, if—
(A) a child *** receives over half of his support during the calendar year from his parents—
(i) who are divorced or legally separated under a decree of divorce or separate maintenance, [and]
* * *
(B) such child is in the custody of one or both of his parents for more than one-half of the calendar year, such child shall be treated, for purposes of subsection (a), as receiving over half of his support during the calendar year from the parent having custody for a greater portion of the calendar year (hereinafter in this subsection referred to as the ‘custodial parent’).” 26 U.S.C. § 152(e), at 227 (Supp. IV 1986).

There are three exceptions to this general rule. The exception at issue here states that the noncustodial parent may claim the deduction if:

“(A) the custodial parent signs a written declaration (in such manner and form as the Secretary may by regulations prescribe) that such custodial parent will not claim such child as a dependent for any taxable year beginning in such calendar year, and
(B) the noncustodial parent attaches such written declaration to the noncustodial parent’s return for the taxable year beginning during such calendar year.” 26 U.S.C. § 152(e)(2), at 227 (Supp. IV 1986).

There is a split among the jurisdictions as to whether or not a State court may award the dependency exemption to the noncustodial parent. Some courts, including the First Appellate District of Illinois (In re Marriage of Einhorn (1988), 178 Ill. App. 3d 212, 533 N.E.2d 29), and the Third Appellate District of Illinois (In re Marriage of Van Ooteghem (1989), 187 Ill. App. 3d 696, 543 N.E.2d 899), have held that a State court may award the dependency exemption to the noncustodial parent. These courts conclude that a State court’s allocation of an exemption does not interfere with the legislative intent behind section 152(e) of the Code, as amended. Formerly, section 152(e) had in part left to the Internal Revenue Service the determination of whether the custodial or noncustodial parent would receive the exemption. Thus, these courts conclude that Congress’ only purpose in amending section 152(e) to automatically give the exemption to the custodial parent was to eliminate the Internal Revenue Service’s role in determining which parent was entitled to the exemptions. However, to be able to award the exemption to the noncustodial parent, the State court must be able to order the custodial parent to sign the waiver form.

Some courts have found that since the amended section 152(e) provides an automatic allocation of exemption(s) to the custodial parent, Federal law has divested State courts of the authority to allocate the exemption. (See, e.g., State ex rel. Dryden v. Dryden (S.D. 1987), 409 N.W.2d 648; Lorenz v. Lorenz (1988), 166 Mich. App. 58, 419 N.W.2d 770.) Other courts have have stated that a State trial court cannot award the exemption to the noncustodial parent unless the custodial parent signs a waiver form. Theroux v. Boehmler (Minn. Ct. App. 1987), 410 N.W.2d 354; McKenzie v. Kinsey (Fla. Dist. Ct. App. 1988), 532 So. 2d 98.

This court briefly discussed section 152(e) in In re Marriage of Emery (1989), 179 Ill. App. 3d 744, 534 N.E.2d 1014. In Emery, we found section 152(e) clearly states that unless a waiver is signed, a State court may not award the exemption to the noncustodial parent. However, we did not discuss whether a State trial court can order the custodial parent to sign a declaration that he or she will not claim the dependency exemption. We agree with the Einhorn and Van Ooteghem decisions. Nothing in section 152(e) of the Code requires the declaration to be signed voluntarily or prevents State courts from ordering the custodial parent to sign the declaration. Thus, in dissolution of marriage proceedings, a trial court may, in its discretion, allocate the tax dependency exemption to the noncustodial parent by ordering the custodial parent to sign a declaration that he or she will not claim the dependency exemption.

In the present case, the trial court awarded the dependency exemption to the noncustodial parent. However, the trial court did not order the custodial parent to sign a waiver of the exemption. We therefore reverse the order insofar as it awards the exemption, and remand with instructions for the trial court to consider the evidence before it and determine which parent should receive the dependency exemption. If the court determines that respondent is entitled to the exemption, it must order petitioner to sign a declaration that she will not claim the dependency exemption.

For the foregoing reasons, the judgment is affirmed in part, reversed in part and remanded with directions.

Affirmed in part, reversed in part and remanded.

STEIGMANN and McCULLOUGH, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAMELA KAY CLARK, Defendant-Appellant.
    Fourth District
    No. 4—89—0216
    Opinion filed December 14, 1989.
    Daniel D. Yuhas and Judith L. Libby, both of the State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On January 16, 1987, Pamela Kaye Clark (defendant) pleaded guilty in the circuit court of McLean County to aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12—4(b)(6)) and part of her sentence provided for 30 months’ probation. Subsequently, this probation was revoked and, on February 7, 1989, defendant was sentenced to a new term of 30 months’ probation with no credit for prior probation. Conditions of this probation included a 30-day jail sentence with good behavior time to apply, payment of costs, and a fine of $200 payable by August 1, 1989. In addition, she was assessed a $10-per-month probation fee and ordered to regularly attend Human Resources counseling sessions. Defendant appeals, contending the $200 fine was erroneous because there was no showing that the trial court considered defendant’s financial resources or ability to pay.

Section 5—9—1(d)(1) of the Unified Code of Corrections provides:

“(d) In determining the amount and method of payment of a fine, the court shall consider:
(1) the financial resources and future ability of the offender to pay the fine.” Ill. Rev. Stat. 1987, ch. 38, par. 1005—9—1(d)(1).

In People v. Maldonado (1985), 109 Ill. 2d 319, 487 N.E.2d 610, our supreme court held section 5—9—1(d)(1) to be mandatory and required that the sentencing court be possessed of an opinion relative to financial resources and future ability to pay. However, it was held that what is required “is that the record show that the court considered the financial resources and future ability of the offender to pay the fine.” (Maldonado, 109 Ill. 2d at 324, 487 N.E.2d at 612.) A specific opinion is not necessary. The trial court’s statement in Maldonado — “ T would note that the defendant had been gainfully employed, and that, as testified, he’s been on unemployment’ ’’ — was held sufficient to indicate that the court had considered defendant’s financial resources and future ability to pay. Maldonado, 109 Ill. 2d at 324, 487 N.E.2d at 612-13.

Our court in People v. Jumper (1983), 113 Ill. App. 3d 346, 353, 447 N.E.2d 531, 536, in upholding the imposition of a fine, held that the “trial judge need not specifically state that a defendant was determined to have the financial resources and ability to pay. The finding is implicit in the imposition of a fine where the judge is aware of the facts which support such a determination.” The $200 fine in Jumper was upheld where the court was aware of the 19-year-old defendant’s lack of debt, ability to work, and the sentence was probation rather than jail time.

The Maldonado test, requiring the record to show the court’s consideration of financial resources and future ability to pay, may not be the same. It is not inconsistent, however, with the Jumper test of the findings under section 5—9—1(d)(1) being implied where the record indicates the judge was aware of the facts which support such a determination.

The order for probation and certificate of conditions now appealed from was executed on February 7, 1989. The court’s order evidently was based solely on the presentence investigation report, which had been filed on February 1, 1989. That report indicates defendant was a 44-year-old unmarried woman, without children, living in a trailer owned by her and located on a lot evidently owned by her. She had been diagnosed as having a “paranoid personality disorder,” prescribed medication, and ordered to counseling, but had not followed through with either medication or counseling. In simple terms, her conduct can be described as that of a troublemaker. The report indicated that the probation department staff found it extremely difficult to work with her. The report states that she has not worked for the past few years and her support consists of $339 permanent social security, $10 per month from supplemental security income, and $51 per month in food stamps. In addition to the trailer and lot, she owns a 1975 Comet automobile. The report indicates defendant stated that she had no monthly financial obligations and no outstanding financial obligations. The long history included in the report indicates the frustrations the court, probation officers, and Human Resources staff had faced in dealing with defendant.

It is apparent from the record that the trial court was aware of the defendant’s financial resources and future ability to pay fines. The amount of the fine and the delay in the requirement of the payment of the fine adequately establish that the court considered the financial resources and future ability of the defendant to pay the fine.

Since the trial court is in a better position to assess the proper factors, a reviewing court will not disturb a sentence imposed within the statutory guidelines absent an abuse of discretion. (People v. Cox (1980), 82 Ill. 2d 268, 279-80, 412 N.E.2d 541, 547.) Here we find no such abuse.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


author: JUSTICE GREEN

text:
    ANGELA RINKENBERGER, Plaintiff-Appellant, v. ROBERT COOK, Defendant (Steve Soltis, Jr., d/b/a Steve’s Southside Market, et al., Defendants-Appellees).
    Fourth District
    No. 4—89—0351
    Opinion filed December 14, 1989.

      M.G. Guio & Associates, Ltd., of Streator (James T. Reilly, of counsel), for appellant.
    Francis J. Lynch, of Heyl, Royster, Voelker & Allen, of Springfield, for appellee Steve Soltis, Jr.
    Randolph R. Spires, of Satter, Ewing & Beyer, of Pontiac, for appellee Amell Liquors, Inc.
   JUSTICE GREEN

delivered the opinion of the court:

On May 14, 1988, plaintiff Angela Rinkenberger brought suit in the circuit court of Livingston County against defendant Roger Cook alleging negligence and seeking damages for injuries she received on December 11, 1987, when she was riding in an automobile driven by Cook, and the automobile hit a culvert. On December 9, 1988, plaintiff filed an amended complaint to which defendants Steve Soltis, Jr., and Amell Liquors, Inc. (Amell), were named as additional parties. Count I repeated the charges against Cook. Counts II, III, IV, and V sought recovery under section 6—21(a) of the Liquor Control Act of 1934 (Dramshop Act) (Ill. Rev. Stat. 1987, ch. 43, par. 135(a)) based upon gifts or sales of intoxicants by those defendants to Cook, which caused his intoxication and, in turn, caused him to drive the vehicle into the culvert. On February 24, 1989, upon motions of Soltis and Amell, the court dismissed counts II, III, IV, and V and made a finding pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). Plaintiff has" appealed.

The dispute on appeal arises because of section 6 — 21(a) of the Dramshop Act which, at all times pertinent, stated in part:

“For all causes of action involving persons injured, killed, or incurring property damage after September 12, 1985, in no event shall the judgment or recovery for injury to the person or property of any person exceed $30,000 for each person incurring damages, and recovery under this Act for loss of means of support resulting from the death or injury of any person shall not exceed $40,000. Nothing in this Section bars any person from making separate claims which, in the aggregate, exceed any one limit where such person incurs more than one type of compensable damage, including personal injury, property damage, and loss of means to support.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 43, par. 135(a).

In counts II and IV, plaintiff sought to recover against Soltis and Amell, respectively, for personal injuries rendering her a quadriplegic, disfiguring her, and causing her pain and suffering. In counts III and V she sought to recover against those defendants, respectively, for damaging her property by causing her to incur medical bills in excess of $100,000 in amount. Thus, plaintiff sought to separate her claim for medical expenses incurred from the other aspects of her injury by classifying the medical expenses incurred as a damage to property so that the $30,000 limitation of section 6—21(a) of the Dramshop Act would apply only as a limit upon each separate type of recovery and not as to her aggregate recovery. Upon her theory, the limit to her aggregate recovery under the Dramshop Act is $60,000.

Based upon the precedent of Thorsen v. City of Chicago (1979), 74 Ill. App. 3d 98, 392 N.E.2d 716, the circuit court held the damages arising from the incursion of medical bills were elements of personal injury, were within the $30,000 limitation, and could not be sought in a separate count. We agree that the medical bills did not constitute a claim for property damage. Thus, counts III and V were properly dismissed. However, counts II and IV stated proper causes of action for injuries to the person. They should not have been dismissed. On remand, plaintiff shall be permitted, if she wishes, to amend those counts to include her medical expenses as an element of her damages arising from personal injuries.

At the times involved in Thorsen, the pertinent portion of section 14 of the then Dramshop Act, predecessor to section 6—21(a) of the present act, merely stated:

“In no event shall the judgment or recovery under this Act for injury to the person or to the property of any person as aforesaid exceed $15,000.” (Ill. Rev. Stat. 1977, ch. 43, par. 135.)

The Thorsen court recognized that when one person has been held to be responsible for medical expenses incurred in behalf of another, incurrence of this obligation has been held to be a loss of property. However, that court concluded that “when [as here] the person injured and the person who paid the expenses are one and the same as the person suing, there is but one injury and the plain intent of the section is that there can be but one recovery, not to exceed $15,000, per plaintiff.” (Thorsen, 74 Ill. App. 3d at 110, 392 N.E.2d at 725.) There, the appellate court affirmed the judgment of the circuit court, which had limited that plaintiffs recovery against dramshop defendants to $15,000.

Plaintiff relies, in part, upon decisions in Thompson v. Tranberg (1977), 45 Ill. App. 3d 809, 360 N.E.2d 108, Kelly v. Hughes (1962), 33 Ill. App. 2d 314, 179 N.E.2d 273, Shepherd v. Marsaglia (1961), 31 Ill. App. 2d 379, 176 N.E.2d 473, and Fortner v. Norris (1958), 19 Ill. App. 2d 212, 153 N.E.2d 433. In each of those cases, parents of minors or a spouse, liable under the provisions of section 15 of “An Act to revise the law in relation to husband and wife” (the Family Expense Statute) (now Ill. Rev. Stat. 1987, ch. 40, par. 1015) were allowed to sue under the Dramshop Act for damage to property when they incurred liability for medical expenses of their child or spouse physically injured by an intoxicated person. These cases concern the situation distinguished by the Thorsen court from the circumstances there, and here, where the plaintiff is suing to recover her own medical expenses arising because of personal injury to her.

Plaintiff also relies upon Public Act 84—271 (1985 Ill. Laws 2407 (eff. Sept. 12, 1985)), which amended section 6—21(a) of the Dramshop Act by raising the limitation on recovery for personal injury or property damage inflicted by an intoxicated person from $15,000 to $30,000. That act also contained the following previously mentioned language:

“Nothing in this Section bars any person from making separate claims which, in the aggregate, exceed any one limit where such person incurs more than one type of compensable damage, including personal injury, property damage, and loss to means of support.” (Ill. Rev. Stat. 1985, ch. 43, par. 135(a).)

Plaintiff maintains this wording indicates a rejection of Thorsen and creates a rule whereby a person receiving a personal injury from an intoxicated person can receive an award of up to $30,000 for medical expenses, deemed to be property damage, and also receive a separate award up to $30,000 for what would ordinarily be considered the other elements of recovery for personal injury. This construction is supported neither by the wording of the amendment nor by its legislative history.

The amending language described in the previous paragraph makes clear that separate recoveries can be had for personal injury, property damage, and loss of means of support with the $30,000 limit applying to each category and not to the aggregate amount. It gives no indication that medical expenses incurred by the injured party are property damage to that party. Previous decisions had held that separate recoveries can be obtained as to those listed elements of damage and that the limitation upon amount of recovery applied to each element separately and not to the aggregate amount recovered. (Seward v. Griffin (1983), 116 Ill. App. 3d 749, 452 N.E.2d 558; Thompson, 45 Ill. App. 3d 809, 360 N.E.2d 108; Kelly, 33 Ill. App. 2d 314, 179 N.E.2d 273.) The procedure permitting this has been described as an aspect of the phenomena of “stacking.”

When the bill which became Public Act 84—271 was under discussion in the House of Representatives, the bill’s sponsor, Representative Countryman, explained that “stacking” had previously been permitted, and this legislation made clear it was permissible. (84th Ill. Gen. Assem., House Proceedings, May 23, 1985, at 162 (statements of Representative Countryman).) Representative Countryman also explained the proposed legislation eliminated the cause of action for loss of means of support for those family members or spouses claiming under a person who caused his or her own intoxication. When questioned by Representative Johnson as to whether the legislation affected the holdings of case authority (i.e., Shepherd, Kelly, or Fortner) or impaired the ability of a plaintiff “to stack those three majors of recovery” (personal injury, property damage, and means of support), Representative Countryman responded it did not. Rather, Representative Countryman reiterated, the bill merely clarified “that the stacking is permitted as the case law indicates.” 84th Ill. Gen. Assem., House Proceedings, May 23, 1985, at 167 (statements of Representative Countryman).

The language of Public Act 84—271 and its legislative history make clear the sole purposes of the Act were (1) to eliminate certain recovery for loss of means of support; (2) to raise the monetary limits for the three categories of recovery; and (3) to codify existing case law in regard to “stacking.” The legislature is presumed to have enacted the amendment with a knowledge of the previous decision in Thorsen. Had it intended to have medical expenses incurred by a person for that person’s own injuries treated as a damage to property contra Thorsen, it would likely have so stated. Hupp v. Gray (1978), 73 Ill. 2d 78, 382 N.E.2d 1211.

Plaintiff emphasizes that section 1—2 of the Dramshop Act states the “Act shall be liberally construed.” (Ill. Rev. Stat. 1987, ch. 43, par. 94.) However, the applicability of that language to this case is countered by language of the supreme court in Moran v. Katsinas (1959), 16 Ill. 2d 169, 157 N.E.2d 38. There, an issue arose as to the limitation upon recovery for loss of means of support under the Dram-shop Act. In holding for an interpretation that would give less exposure to liability to defendants, the court said the “Act, being penal in character, *** should be definite and certain in order that persons subjecting themselves to that liability may know with certainty the maximum obligation they may be expected to meet.” Moran, 16 Ill. 2d at 174-75,157 N.E.2d at 40-41.

We recognize possible inconsistency in a rule which classifies the incursion of liability to pay medical expenses as a damage to property when the liability arises because of personal injury to others but as injury to the person when the liability arises because of injury to the person liable. However, this distinction was recognized prior to Thor-sen by the Appellate Court for the then Third District (predecessor to this court) in Fortner, in holding that liability for medical expenses arising under the Family Expense Statute for injury to another was damage to property. That court stated: “Broadly speaking a person is injured in his property when his estate is lessened by other than a personal injury or breach of contract.” (Emphasis added.) Fortner, 19 Ill. App. 2d at 216, 153 N.E.2d at 435.

Finally, plaintiff relies upon Ragan v. Protko (1978), 66 Ill. App. 3d 257, 383 N.E.2d 745. There, under the Dramshop Act a mother was not permitted to recover, as property damage, medical and funeral expenses incurred by her son or his estate, because she was not liable for those expenses. Plaintiff argues that, therefore, had she been liable for those expenses she could have recovered for those expenses as property damage, and thus, plaintiff should be entitled to recover for her medical expenses as property damage to her. The argument fails to consider the difference between liability for one’s own medical expenses and those of others as explained in Fortner and as held in Thorsen.

For the reasons stated, we affirm the judgment to the extent it dismissed counts III and V. We reverse the judgment to the extent it dismissed counts II and IV. We remand to the circuit court of Livingston County with directions plaintiff be given leave, if she so desires, to amend counts II and IV to include, within her claim of damages for her personal injury, her medical expenses.

Affirmed in part; reversed in part and remanded with directions.

KNECHT, P.J., and McCULLOUGH, J., concur.