author: JUSTICE O’CONNOR

text:
      In re MARRIAGE OF MARLENE FERRARO, Petitioner-Appellee, and GIOTTO A. FERRARO, Respondent-Appellant.
    First District (1st Division)
    No. 1—90—0364
    Opinion filed March 25, 1991.

      Harris & Berlin, of Chicago (Gerald L. Berlin and David M. Bagdade, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Leonard N. Foster, Assistant State’s Attorney, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Giotto Ferraro appeals the trial court’s denial of his petition to modify his child support payments. We reverse and remand.

On October 16, 1965, Marlene and Giotto Ferraro were married. Subsequently, they had two children, Michelle and Craig. Michelle was born on April 17, 1970, and Craig was born on April 12, 1973. On March 14, 1986, Marlene filed a petition for dissolution of marriage, and on January 25, 1988, a judgment of dissolution of marriage was entered. Pursuant to the judgment, Giotto was to pay, inter alia, a lump sum of $636.81 per month for the support and maintenance of the children. Subsequently, in July of 1988, Giotto filed a petition for modification of child support.

On October 2, 1989, the trial court heard Giotto’s petition. At the hearing, Giotto testified on direct examination that on April 15, 1988, he was laid off from his previous employment, where he had earned $48,000 annually; that he was presently unemployed and did not have any income; that he is “learning the business” (car salesman) at Fleet-wood Motors from a “friend”; that he goes to Fleetwood Motors a couple times a week; and that his daughter, Michelle, was emancipated in April 1988. However, on cross-examination, Giotto admitted that he goes to Fleetwood Motors to help his friend out on “a pretty steady basis” in exchange for “help” with his rent.

Also at the hearing, Marlene testified that Giotto was working at Fleetwood Motors. Additionally, Sheldon Peck testified that he was shopping for a car at Fleetwood Motors and that Giotto worked there, that Giotto discussed a car’s price with him, that Giotto gave him car keys so that he could test drive a car and that Giotto took money as a deposit on a car.

After hearing the testimony regarding Giotto’s petition for modification of child support, the trial court ruled:

“Sir, I have a real problem with your client [Giotto], He is not telling us the truth. This is a court of equity. And but for the fact that one child has reached majority, I wouldn’t give him any relief, none. *** Based on the emancipation of Michelle, I will lower it [support] to five hundred dollars [per month]. And frankly your client is lucky to get that since he sat up here and didn’t tell us the truth.”

However, the trial court reconsidered the October 2 order and that order was never entered by the clerk’s office. On October 6, 1989, the trial judge stated:

“After giving due consideration, I have decided not to enter the order that I originally proposed. I don’t believe that Mr. Ferraro is entitled to any relief. I don’t believe that he met his burden of proof in this case. I don’t believe his testimony, period. Ergo that part of the order *** won’t [be entered]. I am not going to reduce his support obligations at all. He has the burden of proving by a preponderance of the evidence that a substantial change in circumstances has occurred which would justify a diminution of his support obligations. I don’t think he has met that burden.”

Thereafter, the trial court entered its order which denied Giotto’s petition.

Giotto argues that the trial court abused its discretion by denying Giotto’s petition to modify his child support payments. We agree. The general rule is that child support terminates when a child reaches the age of 18. (In re Marriage of Pauley (1982), 104 Ill. App. 3d 100, 102, 432 N.E.2d 661.) At 18 years of age, the child has at-tamed majority and becomes emancipated. (In re Marriage of Donahoe (1983), 114 Ill. App. 3d 470, 475, 448 N.E.2d 1030.) Generally, evidence that a child has attained the age of majority constitutes a substantial change in circumstances which necessitates the modification of child support unless: (1) the parties agree on a different terminating event; (2) the court orders support payments to continue based on the nonminor child’s physical or mental disability or when educational expenses are sought; or (3) the child becomes emancipated at an earlier age. Ill. Rev. Stat. 1987, ch. 40, pars. 510(c), 513.

However, the presumption that there has been a substantial change in circumstances when a child attains the age of majority can be rebutted by contervailing evidence that the lump-sum payment is still necessary, such as (1) the financial resources of the children; (2) the financial resources and needs of the custodial parent; (3) the standard of living the children would have enjoyed had the marriage not been dissolved; (4) the physical, emotional, and educational needs of the children; and (5) the financial resources and need of the noncustodial parent or parents. Ill. Rev. Stat. 1987, ch. 40, pars. 505(2)(a) through (2)(e); In re Marriage of Milburn (1986), 144 Ill. App. 3d 76, 80, 494 N.E.2d 161.

Accordingly, we find that the trial court abused its discretion when it denied Giotto’s petition to modify his child support payments when it was uncontroverted that Michelle attained the age of majority and that the respondent did not offer any countervailing evidence that may have established that the unmodified lump-sum payment was still necessary. Consequently, this case is remanded to the trial court to determine, based upon equitable considerations, the amount the lump-sum support payment should be reduced. Unallocated child support is not necessarily reduced pro rata when a child becomes emancipated. (Finley v. Finley (1980), 81 Ill. 2d 317, 329, 410 N.E.2d 12; Potocki v. Potocki (1981), 98 Ill. App. 3d 501, 505, 424 N.E.2d 714.) It is a matter solely for judicial determination. In re Marriage of Pauley (1982), 104 Ill. App. 3d 100,104, 432 N.E.2d 661.

Reversed and remanded.

CAMPBELL and BUCKLEY, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MANNING

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BARRY BOCIK, Defendant-Appellant.
    First District (1st Division)
    No. 1—90—1132
    Opinion filed March 25, 1991.

      Edwin F. Mandel Legal Aid Clinic, of Chicago (Mark Heyrman, of counsel), for appellant.
    Jack O’Malley, State’s Attorney of Chicago (Renee Goldfarb and Mary Brigid Kenney, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Defendant, who was found unfit to stand trial and then placed in the custody of the Department of Mental Health and Developmental Disabilities (hereinafter DMHDD), appeals from an order entered on March 28, 1990, denying his petition for unconditional discharge. (Ill. Rev. Stat. 1989, ch. 38, par. 104—25(g)(2).) On appeal, defendant contends: (1) the trial erred in denying him unconditional release since it found that he was not a serious threat to public safety and thus met the statutory standards for release under section 104—25(g)(2) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 104—25(g)(2)) and (2) his continuing commitment violates due process and equal protection guarantees of the State and Federal constitutions.

On December 7, 1989, defendant filed a petition for unconditional discharge or modification of his conditional discharge order. In count I, he alleged he was arrested and charged with residential burglary in Cook County in 1981, found unfit to stand trial on June 14, 1984, and on July 3, 1984, committed to the custody of DMHDD pursuant to section 104—25(g)(2). On December 12, 1984, the court remanded him to the DMHDD for a period not to exceed 15 years. He was conditionally released by court order on July 30, 1987. On May 18, 1988, his release was modified to provide that he continue outpatient treatment at Oak Leyden Development Services Clinic (hereinafter Oak), continue to reside with his mother and take his prescribed medication. Defendant further alleged that he was not personally subject to involuntary admission pursuant to the Mental Health and Developmental Disabilities Code (Mental Health Code) (Ill. Rev. Stat. 1989, ch. 91½, par. 1—119), and section 104—25(g)(2) of the Code of Criminal Procedure since he was not, because of mental illness, reasonably expected to inflict serious physical harm upon himself or another in the near future and could provide for his basic physical needs so as to guard himself from serious harm and did not constitute a serious threat to public safety. Defendant sought unconditional release from the custody of the court pursuant to section 104—25(g)(3) of the Code of Criminal Procedure and section 3—809 of the Mental Health Code. Ill. Rev. Stat. 1989, ch. 38, par. 104—25(g)(3); ch. 91½, par. 3—809.

In count II, defendant also sought unconditional release without alleging that he did not constitute a serious threat to public safety pursuant to section 104—25(g)(2).

In Count III, defendant requested that a court order of May 18, 1988, be amended to allow him to live with his brother, Gerald, in Andover, Minnesota. He alleged that Gerald supported the petition and was willing for defendant to live with him, that defendant would receive outpatient treatment at the Minneapolis/St. Paul Veterans Administration (VA) Hospital and that he would continue to take his prescribed medication. He alleged that these arrangements would reasonably assure his satisfactory progress and treatment, his safety and that of others.

At a hearing on the petition on March 28, 1990, Dr. Robert Reifman, director of the Psychiatric Institute of the Circuit Court of Cook County (hereinafter Institute), and a board-certified psychiatrist, testified that he examined defendant on February 13, 1990, as well as other occasions. He also reviewed defendant’s file at the Institute going back to 1983. Defendant was also examined by three other psychiatrists. He also considered a social history given to him by defendant’s mother, information from defendant’s sister-in-law in Minneapolis, and records from Cook County Hospital, Loyola Medical Center, DMHDD and Oak Forest Hospital, covering a period from 1982 on. After defendant was arrested for the residential burglary, he suffered a brain aneurysm and hemorrhage resulting in the destruction of parts of his brain and serious neurological deficiency.

Dr. Reifman testified that in his opinion defendant was not likely to inflict serious harm on himself or others in the near future, he was able to provide for his basic physical needs so as to guard himself from serious harm, and he did not constitute a serious threat to public safety, to himself or to other persons. Dr. Reifman also commented that defendant’s plan to change his residence to Minnesota and attend the "VA Hospital in Minnesota was reasonable based on defendant’s mental state and conversations with defendant’s relatives in Minnesota. In his opinion, defendant would never be fit for trial because he was unable to cooperate with counsel on the charge of residential burglary that allegedly took place in 1982. Defendant also had some difficulty understanding the purpose of the proceedings, and the functions of the various people and the court. It appeared to Dr. Reifman that defendant did understand the nature of the charges, and his main difficulty was in conceptual ideas. Dr. Stipes of the Institute reached the same conclusions in his reports regarding similar work he did with defendant in January 1990.

The court called defendant to testify and asked about his plans to go to Minnesota. Defendant explained his family activities with his brother’s seven children in Minnesota and his art work. The court asked defendant to promise that he would not get into any more trouble or hurt anybody if the court let him go to Minnesota, and defendant agreed. The court said that it would amend the prior order to allow defendant to reside with his family in Minnesota. The court also said that it would deny the petition for unconditional discharge at this time without prejudice to defendant presenting it at some future time.

In its written order, the court found that defendant was not reasonably expected to inflict serious harm upon himself or another, he could provide for his basic physical needs so as to guard himself from serious physical harm and he did not constitute a serious threat to himself or others. The court stated that his continuance of outpatient treatment at the Minneapolis/St. Paul YA Hospital and his following the prescribed medical regime reasonably assured satisfactory progress in treatment and the safety of defendant and others. The court denied defendant’s petition for unconditional release without prejudice, modified the conditions of defendant’s release to permit him to live with his brother in Minnesota and obtain treatment from the YA Hospital in Minneapolis and continued the order of the court for a period not to exceed 15 years from the date of defendant’s commitment.

Defendant contends that the trial court found he met the statutory standards for release and should have granted him release under section 3—901(b) of the Mental Health Code, which provides that if after a hearing on the person’s petition for discharge, the court finds the person is not subject to involuntary admission, the court “shall enter an order so finding and discharge the patient.” (Ill. Rev. Stat. 1989, ch. 91½, par. 3—901(b).) Discharge of a defendant found unfit and committed is governed by section 104—25(g) of the Code of Criminal Procedure, which provides:

“(g) At the expiration of an extended period of treatment ordered pursuant to this Section:
(1) Upon a finding that the defendant is fit or can be rendered fit consistent with Section 104 — 22, the court may proceed with trial.
(2) If the defendant continues to be unfit to stand trial, the court shall determine whether he or she is subject to involuntary admission under the Mental Health and Developmental Disabilities Code or constitutes a serious threat to the public safety. If so found, the defendant shall be remanded to the Department of Mental Health and Developmental Disabilities or to the Department of Rehabilitation Services for further treatment and shall be treated in the same manner as a civilly committed patient for all purposes, except that the original court having jurisdiction over the defendant shall be required to approve any conditional release or discharge of the defendant, for the period of commitment equal to the maximum sentence to which the defendant would have been subject had he or she been convicted in a criminal proceeding. However, if the defendant is remanded to the Department of Mental Health and Developmental Disabilities, the defendant shall be placed in a secure setting unless the court determines that there are compelling reasons why such placement is not necessary.
(3) If the defendant is not committed pursuant to this Section, he or she shall be released.
(4) In no event may the treatment period be extended to exceed the maximum sentence to which a defendant would have been subject had he or she been convicted in a criminal proceeding. For purposes of this Section, the maximum sentence shall be determined by Section 5—8—1 of the ‘Unified Code of Corrections,’ excluding any sentence of natural life.” Ill. Rev. Stat. 1989, ch. 38, par. 104—25(g).

To subject a person to involuntary commitment, the State must show by clear and convincing evidence not only that the person is suffering from a mental illness but that such illness may also cause him to inflict serious physical harm upon himself or another in the near future or that he is unable to provide for his basic physical needs so as to guard himself from serious harm. (Ill. Rev. Stat. 1989, ch. 91½, par. 1—119; Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 504, 520 N.E.2d 37; In re Stephenson (1977), 67 Ill. 2d 544, 556, 367 N.E.2d 1273; Addington v. Texas (1979), 441 U.S. 418, 431-33, 60 L. Ed. 2d 323, 334-35, 99 S. Ct. 1804, 1812.) On the one hand, conviction of an accused person while he is incompetent violates due process. (Pate v. Robinson (1966), 383 U.S. 375, 378, 15 L. Ed. 2d 815, 818, 86 S. Ct. 836, 838.) On the other hand, due process forbids the involuntary confinement of persons who are dangerous to no one and can live safely in freedom (O’Connor v. Donaldson (1975), 422 U.S. 563, 575, 45 L. Ed. 2d 396, 407, 95 S. Ct. 2486, 2493-94), and indefinite commitment of a criminal defendant solely on account of his incompetency to stand trial “does not square with the Fourteenth Amendment’s guarantee of due process.” Jackson v. Indiana (1972), 406 U.S. 715, 731, 32 L. Ed. 2d 435, 447, 92 S. Ct. 1845, 1854.

The standard in section 104—25(g)(2) is the same standard applied to civilly committed persons pursuant to section 1—119 of the Mental Health Code. (People v. Polachek (1984), 128 Ill. App. 3d 200, 205, 470 N.E.2d 584.) It is clear from the findings of the court and from the uncontradicted testimony the court considered that the State did not clearly and convincingly establish that defendant was a person subject to involuntary admission. The evidence and the findings signify the opposite, that defendant was not, at the .time of the hearing, such a person. The record shows that on December 12, 1984, defend-, ant was found not likely to be fit within two years and in need of treatment. Defendant was again involuntarily committed on January 15, 1987. However, on May 18, 1988, defendant was found not dangerous to himself or others. The court then ordered defendant to continue to reside at home with his mother and that his bail bond deposit be paid to her. Defendant was also required to attend counseling and take prescribed medication.

On January 24, 1990, the court ordered Dr. Reifman to conduct an examination of defendant. On February 21, 1990, Dr. Reifman filed a report with the court and stated that he examined defendant on February 13, 1990, and after a review of his records, defendant remained similar to previous examinations. Dr. Reifman diagnosed defendant as having a mixed organic brain syndrome. In his opinion, defendant was not reasonably expected to inflict serious harm on himself or another in the near future, he was able to provide for his basic physical needs so as to guard himself from serious harm, and he did not constitute a serious threat to public safety. Defendant remained unfit for trial and there was not a reasonable probability that he would ever become fit. In his opinion, the program of changing residences so defendant could live in Minnesota with his brother and attend the YA Medical Center was sufficient to supply his medical needs and assure his progress for the safety of himself and others. The record contains a report of Dr. Albert H. Stipes which is virtually identical to Dr. Reifman’s report.

Considering the entire record, we can find no basis to conclude that defendant was a person subject to involuntary admission under the Mental Health Code or that he constituted a serious threat to public safety. The order denying discharge was against the manifest weight of the evidence. Since there was no evidence that defendant would ever be fit for trial, the court could not proceed with the criminal trial. Also, since the court’s order did not find defendant a person subject to involuntary admission under the Mental Health Code, he was required to be released under section 104—25(g)(3). (Ill. Rev. Stat. 1989, ch. 38, par. 105—25(g)(3).) Therefore, the trial court should have granted defendant’s petition for unconditional release.

The State argues that the court’s order, read as a whole, meant that defendant would not inflict harm on himself or others and could provide for his basic physical needs only if he lived with his brother and continued his outpatient treatment and medication. However, the court found in its order that defendant was not reasonably expected to inflict serious harm upon himself or another and could provide for his basic physical needs so as to guard himself from serious physical harm, and he did not constitute a serious threat to public safety or to himself or others. These findings are unequivocal and unconditional.

The State also says that section 105—25(g)(2) provides that the original court having jurisdiction over defendant shall be required to approve any conditional release or discharge of defendant, the court gave the defendant “what he wanted,” defendant was “pleased” with that decision and never objected at trial. The unstated conclusion of this argument apparently is that defendant waived any objections to the decision. We know of no authority, and the State has cited none, to support the proposition that a defendant’s failure to object to the court’s decision at trial under the circumstances would preclude a timely appeal of that decision.

The State also says that the court has jurisdiction over defendant until 1996 since section 104—25(g)(2) of the Code of Criminal Procedure provides that the period of commitment cannot exceed the maximum sentence to which defendant would have been subject had he or she been convicted in a criminal proceeding, which is 15 years in the case of residential burglary, so that the court’s jurisdiction over defendant would not expire until 1996. We find no authority that such an upper limit applies to a defendant not subject to involuntary commitment who has no prospect of retaining fitness and who has been released from the obligation of his bailbond.

In Jackson v. Indiana (1972), 406 U.S. 715, 32 L. Ed. 2d 435, 92 S. Ct. 1845, cited by defendant in this regard, the Court considered the situation of a mentally defective deaf mute charged with two crimes and found unfit to stand trial. There was no evidence that he could ever be rendered fit for trial, which made his commitment, in effect, permanent. The Court found that indefinite commitment solely on the basis of the accused’s incompetence to stand trial was a violation of his due process rights. The Court in Jackson held that a defendant committed solely on account of his unfitness, who will not likely obtain fitness in the foreseeable future, must be committed civilly or released.

However, Jackson has been distinguished in Illinois on the basis that the defendant is committed for a determined period only after a discharge hearing at which the State must meet its burden of proof, and thus, defendant is not committed solely because he is not fit for trial. (Yiadom v. Kiley (1990), 204 Ill. App. 3d 418, 426-27, 562 N.E.2d 310.) In this case there was a discharge hearing and the commitment is thereby predetermined at a 15-year maximum. In Yiadom, however, the court found that defendant was subject to involuntary commitment. To allow the State to deny defendant a discharge when he is not subject to involuntary commitment would deny defendant due process under Jackson even though the court has heard evidence to support the charges and although the statute provides a 15-year upper limit on his confinement.

Therefore, the order of the circuit court of Cook County is reversed.

Order reversed.

BUCKLEY and O’CONNOR, JJ., concur.


author: JUSTICE COCCIA

text:
    JEANNE QUINN, Indiv. and as Executive Director of the Chicago Metro Ethics Coalition, Plaintiff-Appellant, v. BERNARD L. STONE, Alderman, The City of Chicago, Defendant-Appellee.
    First District (2nd Division)
    No. 1—89—2638
    Opinion filed March 26, 1991.
    Rehearing denied April 25, 1991.

      Augustine & Kern, Ltd., of Chicago (Terrance A. Norton, of counsel), for appellant.
    Anthony J. Fornelli, of Chicago, for appellee.
   JUSTICE COCCIA

delivered the opinion of the court:

Plaintiff Jeanne Quinn, individually and as executive director of the Chicago Metro Ethics Coalition, appeals from a circuit court order dismissing her complaint for injunctive relief which sought to compel defendant Bernard L. Stone, alderman, City of Chicago, to produce records of expenditures of monthly travel allowance funds. On appeal, plaintiff contends the trial court erred in determining that defendant is not a “public body” under the Illinois Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1989, ch. 116, par. 201 et seq.).

On January 6, January 19, and February 1, 1989, plaintiff wrote to defendant, requesting access to records reflecting expenditures of public funds received by defendant as alderman, including funds used for travel allowance. Defendant did not respond to the letters. On April 3, 1989, plaintiff filed a complaint for injunctive relief pursuant to section 11 of the FOIA. (Ill. Rev. Stat. 1989, ch. 116, par. 211.) The complaint alleges that plaintiff “appealed the denial of her request for records by letters to Eugene Sawyer, Mayor of Chicago *** and to Alderman Anna Langford, Chairman, Committee on Committees, Rules and Ethics.”

On August 28, 1989, the trial court ruled that defendant’s motion to dismiss the complaint was granted on the grounds that defendant is not a governmental body under the FOIA and is not the proper recipient of a request under that Act.

The FOIA provides that “[e]ach public body shall make available to any person for inspection or copying all public records,” with certain exceptions not applicable here. (Ill. Rev. Stat. 1989, ch. 116, par. 203(a).) The Act defines “public body” as follows:

“ ‘Public body’ means any legislative, executive, administrative, or advisory bodies of the State, state universities and colleges, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees, or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue.” Ill. Rev. Stat. 1989, ch. 116, par. 202(a).

Under the Act, a “public body or head of a public body” must notify the requesting person of a denied request, reasons therefor, and his right to “appeal to the head of the public body.” (Ill. Rev. Stat. 1989, ch. 116, par. 209.) The person denied access to public records may then “appeal the denial by sending a written notice of appeal to the head of the public body.” (Ill. Rev. Stat. 1989, ch. 116, par. 210.) When records are still denied, the person may file suit for injunctive or declaratory relief. (Ill. Rev. Stat. 1989, ch. 116, par. 211(a).) The circuit court may then “enjoin the public body from withholding public records.” Ill. Rev. Stat. 1989, ch. 116, par. 211(d).

Plaintiff here failed to pursue her request for these records to the right person. Instead of suing defendant individually, she must pursue her remedy against the head of the public body, pursuant to the Act. The Act defines “[h]ead of the public body” as the “president, mayor, chairman, presiding officer, director, superintendent, manager, supervisor or individual otherwise holding primary executive and administrative authority for the public body.” (Ill. Rev. Stat. 1989, ch. 116, par. 202(e).) Plaintiff, therefore, must pursue her remedy in the circuit court by filing for injunctive or declaratory relief against the mayor and against the city council, of which defendant is a member. Despite a successful argument by defendant in the trial court that this was the proper avenue for relief, plaintiff has apparently chosen not to proceed in that fashion.

An exhaustive review of both State and Federal law defining “public body” reveals no case which would include an individual alderman in that definition. In fact, Illinois statutes using the term either define it in a manner similar to the FOIA or specifically include a reference to individual officers of a public body. Cf, e.g., Ill. Rev. Stat. 1989, ch. 5, par. 127 (“public body” under Soil and Water Conservation Districts Act provisions is a soil and water conservation district); Ill. Rev. Stat. 1989, ch. 24, par. 11—12—4.1 (“public body” under Illinois Municipal Code includes no reference to individual persons); Ill. Rev. Stat. 1989, ch. 67½, par. 8.18 (“public body” under housing and redevelopment provisions includes no reference to individual persons); Ill. Rev. Stat. 1989, ch. 68, par. 101 (“public body” under Human Rights Act includes no reference to individual persons); Ill. Rev. Stat. 1989, ch. 102, par. 41.02 (“public body” under Open Meetings Act includes no reference to individual persons); with Ill. Rev. Stat. 1989, ch. 67½, par. 30 (housing and redevelopment provisions distinguish “public body” from “governing body,” which can include a president of entity); Ill. Rev. Stat. 1989, ch. 85, par. 1232 (Metropolitan Pier and Exposition Authority Act refers to “public bodies, and public officers of any thereof”); Ill. Rev. Stat. 1989, ch. 121, par. 10—715 (Illinois Highway Code refers to “public bodies, and public officers *** thereof”).

We note the important purpose of the FOIA to provide persons with “full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees” and the Act’s recognition that “people have a right to know the decisions, policies, procedures, rules, standards, and other aspects of government activity that affect the conduct of government and the lives of any or all of the people.” (Ill. Rev. Stat. 1989, ch. 116, par. 201.) By holding that plaintiff has pursued her statutory remedy against the wrong person, we do not in any way intend to decide whether or not plaintiff has a right to the information requested.

The trial court properly dismissed plaintiff’s complaint, however, on the basis that defendant is not a “public body” as defined under the FOIA and is not the proper recipient of the request for records.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

SCARIANO, P.J., and DiVITO, J., concur.


author: JUSTICE WHITE

text:
    MARIE PARTIPILO, Plaintiff-Appellant, v. JOHN DiMARIA et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—89—1397
    Opinion filed March 27, 1991.
    Patrick A. Murphy, of Chicago, for appellant.
    Querrey & Harrow, Ltd., of Chicago (Michael Resis, of counsel), for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff Marie Partipilo appeals from an order of the circuit court entering summary judgment in favor of defendants John DiMaria and Dominick Braceo.

In 1983, plaintiff was injured in a fall in defendants’ home. Plaintiff, a friend of defendants, had been invited to their home for dinner. After dinner, as plaintiff was searching for a bathroom, she fell down a flight of stairs leading to the basement.

Plaintiff filed suit against defendants alleging she was caused to fall down the stairs after she became frightened by defendants’ German shepherd dog. In count I of her complaint, plaintiff charged defendants with willful and wanton misconduct in: (1) keeping a dog they knew would frighten those lawfully upon the premises; (2) directing plaintiff to a bathroom in an unlit area directly adjacent to where the dog was kept and in close proximity to an unlit stairway; (3) failing to warn of the existence of the dog and the stairway; and (4) failing to provide any safeguard- for those intending to use the bathroom facilities. Count II charged defendants with negligence, and in count III plaintiff charged defendants with violation of section 16 of the Animal Control Act (Ill. Rev. Stat. 1985, ch. 8, par. 366).

After answering and denying liability, defendants filed a motion for summary judgment. In their motion, defendants argued that the Animal Control Act was inapplicable because plaintiff’s injuries were sustained in a fall, not through any action of defendants’ dog. Defendants also argued they were entitled to summary judgment on count I because plaintiff could not establish she was injured as a result of any willful and wanton conduct on the part of the defendants.

Defendants’ motion was supported by excerpts from the depositions of plaintiff and both defendants. According to plaintiff, she and her husband arrived at defendants’ house around 6 p.m. and were shown around by Antoinette Braceo, Dominick’s wife. Plaintiff stated she did not see a dog while they were being shown around the house but she did hear growling. As plaintiff and her husband were preparing to leave, plaintiff announced she wanted to use the bathroom. Plaintiff then got up and headed for the bathroom.

Plaintiff stated that no one directed her to the bathroom, but she had an idea of where it was because earlier in the evening she had heard Antoinette say “[tjhere’s the bathroom” when they were in a hallway. Plaintiff stated that after getting up, she went straight to the hall where she “knew that the bathroom was.” The hall was dark and plaintiff felt along the wall for a light switch. When she did not find the switch, she continued walking down the hall and turned right to go to the bathroom. When she turned, she heard a growling noise, became frightened, turned to her left, and fell down the basement stairs.

Defendant John DiMaria stated in his deposition that the dog was nine years old, it had received obedience training when it was a year old, and it had never bitten or attacked anyone. Dominick Braceo stated that when plaintiff arrived and told them she was afraid of dogs, his wife put the dog in the laundry room and placed a locked gate across the doorway so it could not get out. The laundry room was located across the hall from the bathroom.

Following a hearing, the trial court entered an order granting defendants’ motion for summary judgment. In her appeal from the trial court’s order, plaintiff concedes that under the law as it existed at the time of her injury, her status as a social guest and licensee precludes her from recovering under count II of her complaint. (See Northrup v. Allister Construction Co. (1987), 163 Ill. App. 3d 221, 516 N.E.2d 586.) However, plaintiff contends she is entitled to recover under counts I and III.

In arguing that the trial court erred in entering summary judgment on count I of her complaint, plaintiff asserts that, given the totality of the circumstances, a question of fact exists concerning whether defendants acted willfully and wantonly. Plaintiff contends defendants were aware of her fear of dogs, and when she indicated she was going to the bathroom, they should have known the combination of the darkened hallway, the unlit stairway, and the presence of a dog behind a gate that was unobservable in the darkness created a high likelihood that she would become frightened and sustain injury. Plaintiff argues, therefore, that defendants’ failure to warn her amounted to willful and wanton misconduct. We cannot agree.

Generally, the issue of whether a defendant has acted willfully and wantonly is a question of fact for the jury. (Robertson v. New York Central R.R. Co. (1944), 388 Ill. 580, 58 N.E. 527; Walldren Express & Van Co. v. Krug (1920), 291 Ill. 472, 126 N.E. 97; Harvey v. Norfolk & Western Ry. Co. (1979), 73 Ill. App. 3d 74, 390 N.E.2d 1384.) However, if the evidence, viewed in a light most favorable to the plaintiff, does not tend to support an allegation of willful and wanton misconduct, the issue should not be submitted to a jury. (Robertson, 388 Ill. at 586; Harvey, 73 Ill. App. 3d at 82.) In the present case, we find no support for plaintiff’s allegations of willful and wanton misconduct.

Willful and wanton misconduct has been defined as “a gross want of care as indicates a willful disregard of consequences or a willingness to inflict injury” and “[a]n intentional disregard of a known duty necessary to the safety of the person or property of another and an entire absence of care for the life, person or property of others, such as exhibits a conscious indifference to consequences.” (Walldren, 291 Ill. at 476-77.) Plaintiff has alleged no acts on the part of defendants that constitute misconduct of this level.

The record establishes that, out of consideration for plaintiff’s fear of dogs, defendants placed their dog in a room behind a locked gate from which it could not and did not escape. Nothing in defendants’ conduct amounted to a willful or intentional disregard of duty; nor can it be said defendants’ actions demonstrated an absence of care for or willingness to inflict injury upon others. As for plaintiff’s contention that the gate was concealed by darkness and this fact, together with the presence of the darkened stairway, constituted a hidden danger or trap, it is well settled that the failure to warn a social guest or licensee of “dangerous conditions” concealed by darkness does not constitute willful or wanton conduct. (Helfenbein v. Malzahn (1974), 24 Ill. App. 3d 616, 321 N.E.2d 394; Biggs v. Bear (1943), 320 Ill. App. 597, 51 N.E.2d 799.) Accordingly, we find the trial court properly granted summary judgment for defendants on count I of plaintiff’s complaint.

We also find the trial court properly entered summary judgment on count III of the complaint, in which plaintiff sought to recover under section 16 of the Animal Control Act.

Section 16 provides:

“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. 1985, ch. 8, par. 366.

In interpreting section 16, courts have held that its purpose is to encourage tight control over animals. (Wilcoxen v. Paige (1988), 174 Ill. App. 3d 541, 528 N.E.2d 1104.) Courts have also held that, while the language of section 16 appears to be absolute, the statute does not impose strict liability on animal owners. Guthrie v. Zielinski (1989), 185 Ill. App. 3d 266, 541 N.E.2d 178; Wilcoxen, 174 Ill. App. 3d at 543; Vanderlei v. Heideman (1980), 83 Ill. App. 3d 158, 403 N.E.2d 756; Bailey v. Bly (1967), 87 Ill. App. 2d 259, 231 N.E.2d 8.

In Bailey, a plaintiff sought recovery under section 16 for injuries suffered when she tripped over her nephew’s dog. The appellate court affirmed a summary judgment for defendant, stating that the legislature did not intend to impose absolute liability under section 16 when there is no factual or reasonable basis for such liability other than as a pure penalty for dog ownership. Bailey, 87 Ill. App. 2d at 262.

In the case before us, we see no factual or reasonable basis for imposing liability under section 16. It cannot be disputed that defendants were in control of their animal. The dog was in defendants’ home, behind a locked gate and defendants stated that the dog could not get out. It was impossible for defendants’ dog to attack or injure plaintiff, and we find, therefore, as in Bailey, the only basis for imposing liability on defendants would be as a pure penalty for their ownership of a dog. Accordingly, we conclude defendants were entitled to summary judgment on count III of plaintiff’s complaint.

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

Judgment affirmed.

CERDA, P.J., and RIZZI, J., concur.


author: PRESIDING JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE LOZADA, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—3248
    Opinion filed March 28, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Greg Koster and Aaron Meyers, Assistant Public Defenders, of counsel), for appellant.
    Jack M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David R. Butzen, and Howard D. Weisman, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial, defendant was found guilty of the offense of delivery of a controlled substance and was sentenced to a term of six years. He appeals, urging that the trial court erred when (1) it erroneously instructed the jury with the Illinois pattern instruction on entrapment (Illinois Pattern Jury Instructions, Criminal, No. 24.04 (1968)) (IPI entrapment instruction) which was unclear and confusing thereby resulting in an unfair trial, and (2) permitted the prosecutor to misstate the law of entrapment in his closing argument.

We affirm.

Relevant to our disposition are the following facts as they appear in the record. The State’s primary witness was Officer Alfredo Ibanez (Ibanez), a special agent of the Illinois Department of State Police, Division of Criminal Investigations. His testimony of the events leading up to the defendant’s arrest was as follows. On April 23, 1985, Ibanez met the defendant through Daniel Robles, who was under investigation and who had previously sold Ibanez an ounce of cocaine. In the ensuing conversation between the three men, Ibanez told the defendant that he was interested in buying a kilogram of cocaine. The defendant said that he could sell him the kilogram of cocaine for $60,000. Ibanez responded that $60,000 was too much, but the defendant said that he would be satisfied because the cocaine would be high grade. Ibanez still refused and counteroffered with $54,000. The defendant said that he would not go any lower than $54,000. The two men agreed to go ahead with the transaction at that price. Ibanez gave the defendant his beeper number, and the defendant gave Ibanez his home phone number. The defendant told Ibanez that he would page him in a few days.

Ibanez further testified that on Friday, April 26 he received a page on his beeper from the defendant. Ibanez returned the call. The defendant asked Ibanez if he was still interested in buying the kilogram of cocaine. Ibanez told the defendant that he needed time to get the money together. The defendant told Ibanez to meet him at Sportsman’s Park at 5 p.m. that day. When the defendant arrived at Sportsman’s Park he paged Ibanez again to find out if he would be there. Ibanez told the defendant that he wanted to postpone the transaction because Sportsman’s Park was too isolated. Ibanez’s real concern was for the safety of the undercover officers that would be on surveillance.

Ibanez further testified that three days later he called the defendant and they agreed to make the sale at 6 p.m. that day in a Jewel Food’s parking lot at 5350 South Pulaski. The two men talked again on the phone, and the defendant told Ibanez to call him when he got to the Jewel parking lot. Ibanez met 15 to 20 undercover agents to finalize the details on the surveillance whereupon the team dispersed to the Jewel parking lot. Ibanez parked his unmarked car in the lot and went into the Jewel to call the defendant. The defendant said that he was on his way with Javier Ramirez. Ibanez knew of Ramirez through his dealings with Robles, but he had never spoken with him.

The defendant and Ramirez arrived in a green Pontiac and parked. They left the car and walked up to Ibanez, who was now standing outside his car. The defendant asked Ibanez if he had the money. Ibanez told the defendant the money was nearby and asked him if he had the cocaine. Ramirez gave Ibanez a key but remained silent. The defendant pointed to a blue Chrysler in another part of the parking lot and explained that the tape-wrapped cocaine and a knife were inside a box, which was inside a paper bag on the floor of the car. Ibanez testified that the defendant commented again that the cocaine was high grade. Ibanez went to the Chrysler, opened the bag on the floor, and sounded the alarm for the undercover agents to arrest Ramirez and the defendant. (Ramirez was tried separately.)

The defendant’s testimony of the events leading up to his arrest was as follows. On April 23, 1985, Javier Ramirez had called and asked the defendant to meet him at 55th and Pulaski. When the defendant arrived he met Ramirez, Robles, and Ibanez. The defendant denied that he ever discussed the quality .or haggled over the price of cocaine with Ibanez. The defendant denied ever giving Ibanez his home phone number when they were first introduced. The defendant believed that Ibanez got his home phone number from Robles. It was only when Ibanez called the defendant several days later that the subject of cocaine arose.

The defendant testified that, two to three weeks after their initial introduction, Ibanez called him asking if he could find some drugs. The defendant told Ibanez that he did not have any drugs. Ibanez said that he knew the defendant needed money and that Ibanez could help him get a job.

Two days later Ibanez called the defendant again. Ibanez reminded the defendant of his money problems, that Ibanez could help the defendant and his family, and that no one would get in trouble. The defendant still refused to help Ibanez. The next day Ibanez called the defendant and pressed the issue again. Ibanez told the defendant that someone would get him a job if he would do one favor. Ibanez reassured the defendant that he would be helping his family and that he would not get into trouble. This time the defendant agreed to do the favor.

The defendant contacted Ramirez. He told Ramirez that he had promised to sell cocaine to Ibanez but that he had no source to obtain the cocaine. Ramirez replied he would get the cocaine and told the defendant to ask a price of $45,000 for a kilogram. The defendant then called Ibanez and told him the cocaine was ready. The defendant then borrowed a junk car from his nephew and gave it to Ramirez to use in the transaction.

The defendant testified he was present at the transaction only because Ramirez asked him to come along to drive the extra car back from the Jewel parking lot. The defendant denied again that he commented on the quality of the cocaine to Ibanez. In fact, the defendant denied speaking a single word to Ibanez in the Jewel parking lot.

Opinion

At trial the defendant raised the entrapment defense, which has four elements: (1) the concept of committing the offense originated with the State, (2) which actively encouraged the defendant to commit the offense, (3) for the purpose of obtaining evidence for his prosecution, and (4) the defendant was not predisposed to commit the offense. (People v. Gresham (1981), 96 Ill. App. 3d 581, 421 N.E.2d 1053.) The judge gave the jury the IPI entrapment instruction. The defendant’s objection to the IPI entrapment instruction was overruled and his alternative instruction was denied. On appeal, the defendant argues that the IPI entrapment instruction was unclear and confusing because it did not direct the jury’s attention to the defendant’s predisposition to commit the offense. Consequently, the defendant argues that he is entitled to a new trial.

The IPI entrapment instruction states:

“It is a defense to the charge made against the defendant that he was entrapped, that is, that for the purpose of obtaining evidence against the defendant he was incited or induced by a public officer to commit a[n] [offense.]
However, the defendant was not entrapped if a public officer merely afforded to the defendant the opportunity or facility for committing [the offense] in furtherance of a criminal purpose which the defendant originated.” (Illinois Pattern Jury Instructions, Criminal, No. 24.04 (1968).)

In his brief, the defendant stated the only language contained in the IPI entrapment instruction that directs a jury’s attention to the defendant’s predisposition is the phrase “a criminal purpose which the defendant originated.” The defendant then engaged in a semantic attack on the phrase and concluded that a jury might interpret the phrase as an instruction to consider the defendant’s actions and not the defendant’s predisposition. The only authority cited by defendant in support of his argument was Webster’s Dictionary and the Random House Thesaurus.

In light of the defendant’s semantic attack on the phrase, we note that Illinois courts have long held that the test of the correctness of an instruction is not what meaning the ingenuity of counsel can attribute to it, but how and in what sense, under the evidence before them, ordinary persons acting as jurors will understand the instruction. (Newton v. Meissner (1979), 76 Ill. App. 3d 479, 394 N.E.2d 1241.) In this regard, the evidence before the jurors was sharply divided on the issue of the defendant’s predisposition. Officer Ibanez’s testimony indicated that the defendant was associated with known drug dealers; that he knew the going price for a kilogram of cocaine; that he continually commented on the quality of the cocaine; that he arranged to have an extra car for the transaction; and that he was physically present when the transaction occurred. The defendant’s testimony indicated that he did not give his phone number to Ibanez; that Ibanez called him several days after they met to discuss the subject of cocaine; that he continually told Ibanez that he did not have any drugs; that he never commented on the price or the quality of the cocaine; that Ibanez finally pressured him into agreeing to do a “favor”; and that he was present at the transaction only because Ramirez asked him to come along to drive the extra car back from the Jewel parking lot. The jury considered the weight and credibility of the above testimony and then, after being instructed on the entrapment defense, decided that the defendant was guilty. Under these circumstances, we conclude that the jury understood that the defendant was predisposed to commit the crime.

We also add that the Illinois Supreme Court has ruled on the correctness of the same phrase which the defendant complains of. In one case, the trial court deleted the phrase “in furtherance of a criminal purpose which the defendant originated” and replaced it with “which he was willing to commit.” (People v. Pates (1981), 84 Ill. 2d 82, 87, 417 N.E.2d 618, 620.) The supreme court ruled that this was improper because the deletion of the phrase “could lead the jury to believe that the State could rebut the claim of entrapment without showing that the defendant had been predisposed to the commission of the offense.” (Emphasis added.) (Pates, 84 Ill. 2d at 87, 417 N.E.2d at 620.) Therefore, the supreme court is of the opinion that the phrase in issue does direct the jury's attention to the defendant’s predisposition.

In another case, the supreme court interpreted the entrapment statute which contains the same language as the IPI entrapment instruction. (People v. Cross (1979), 77 Ill. 2d 396, 396 N.E.2d 812.) The supreme court concluded that the language “contemplates consideration of whether the idea for the crime originated with the defendant; predisposition as well as governmental involvement must therefore be considered.” (Emphasis added.) Cross, 77 Ill. 2d at 405, 396 N.E.2d at 816.

Because the supreme court has determined that the IPI entrapment instruction contemplates the defendant’s predisposition, we hold that its submission to the jury in this case does not entitle the defendant to a new trial.

The defendant also contends that the prosecutor seriously misstated the law during his closing argument. The portion of the prosecutor’s closing argument in issue appeared in the record as follows:

“[THE PEOPLE]: He says the reason he was entrapped was because he had no background and he had no predisposition. Well, you don’t get a free bite the first time you commit an offense because you commit this delivery because you never did it in the past. If you were to follow his logic, ladies and gentlemen, dope dealers who did a big deal to a cop the first time could never be convicted.
[DEFENSE COUNSEL]: That’s not true.
[THE COURT]: That’s counsel’s argument.”

We agree that the above was a misstatement of the law on entrapment. As the defendant points out, a defendant who commits a first-time big deal to a police officer can be convicted if the evidence shows he was predisposed. (People v. Cross (1979), 77 Ill. 2d 396, 396 N.E.2d 812; People v. Tipton (1980), 78 Ill. 2d 477, 401 N.E.2d 528.) Here, however, the issue is whether the misstatement of the law was serious enough to entitle the defendant to a new trial.

Whether a prosecutor’s misstatement of the law entitles a defendant to a new trial depends on the circumstances of each case. (People v. Cobb (1989), 186 Ill. App. 3d 898, 542 N.E.2d 1171.) An appellate court must consider the misstatement of the law in the context of the argument and in light of the entire record to determine if it was harmless or prejudicial error. (People v. Duckworth (1981), 98 Ill. App. 3d 1034, 424 N.E.2d 1337; People v. Johnson (1981), 102 Ill. App. 3d 122, 429 N.E.2d 905.) A nonexhaustive list of factors for the appellate court to consider includes: whether the prosecutor correctly stated the law in other parts of the argument; whether the defendant objected to the misstatement of the law; whether the judge properly instructed the jury on the law and reminded the jury that the arguments of the attorneys did not constitute evidence; and whether the misstatement of the law constituted a material factor in the defendant’s conviction. Duckworth, 98 Ill. App. 3d 1034, 424 N.E.2d 1337; Johnson, 102 Ill. App. 3d 122, 429 N.E.2d 905; Cobb, 186 Ill. App. 3d 898, 542 N.E.2d 1171.

Here, the misstatement of the law was made during the rebuttal of the prosecutor’s closing argument. Earlier in the closing argument, however, the prosecutor correctly stated the law on entrapment. Also, when the prosecutor finished the misstatement of the law, the defense counsel interrupted, saying “[tjhat’s not true.” At various times during the trial the judge reminded the jury that “I will instruct you on the law.” Before the jury retired, the judge gave the correct instruction in the form of the IPI entrapment instruction. Also, much of Officer Ibanez’s testimony and the attorneys’ arguments directed the jury’s attention to the issue of the defendant’s predisposition. This fact mitigates the effect of the misstatement of the law such that it is unlikely it was a material factor in the defendant’s conviction.

Considering the misstatement of the law in the context of the argument and in light of the entire record, we hold that it was harmless error.

Affirmed.

MURRAY and McNULTY, JJ., concur.