text:
    JERRY McHENRY, Plaintiff-Appellee, v. THE CITY OF EAST ST. LOUIS et al., Defendants-Appellants (Charles Wren, Chief of Police for the City of East St. Louis, Defendant).
    Fifth District
    No. 5 — 89—0343
    Opinion filed March 21, 1991.

      Charles L. Wiest, Jr., of Vickers, Moore & Wiest, of St. Louis, Missouri, for appellant City of East St. Louis.
    Robert L. Merriwether, Jr., of East St. Louis, for other appellants.
    James J. Gomric, of Washington, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

East St. Louis police officer Jerry McHenry (McHenry) sought review in the St. Clair County circuit court of the City of East St. Louis’ Board of Fire and Police Commissioners’ (the Board) decision to remove him from the city’s police department. On April 26, 1989, the trial court filed its order overturning the Board’s decision and directed McHenry’s reinstatement. The court concluded that the Board’s findings were against the manifest weight of the evidence and that the delay in concluding the proceedings in the case deprived McHenry of his rights to due process of law. The City of East St. Louis appeals.

On September 6, 1984, the City of East St. Louis’ Police Chief Charles Wren (Chief Wren) filed the following charges against McHenry:

“1. During the period between March 1984 and August 16, 1984, McHenry permitted and allowed Cornelia Conley, a female minor age 14, to reside at his residence located at 553 Gray Boulevard, East St. Louis, Illinois, while said female was a ward of the State of Illinois Department of Children and Family Services and further while said female minor was on runaway status from said department. That such actions constitute conduct unbecoming a police officer in violation of the Manual of Rules and Regulations of the Police Department, City of East St. Louis, Illinois, dated January 2, 1955; Discipline, sec. 1, par. 4, pg. 22.
2. That during the period between March 1984, and August 16, 1984, Officer Jerry McHenry was in neglect of his duty in that he neglected and failed to deliver Cornelia Conley, a female minor age 14, to the State of Illinois Department of Children and Family Services or other proper authorities upon her apprehension.
3. During the period between March 1984, and August 16, 1984, Officer Jerry McHenry engaged in sexual intercourse with Cornelia Conley, a female minor age 14, at his residence located at 553 Gray Boulevard, East St. Louis, Illinois, while said female was on runaway status from the State of Illinois Department of Children and Family Services. That such actions constitute conduct unbecoming a police officer in violation of the Manual of Rules and Regulations of the Police Department, City of East St. Louis, Illinois, dated January 22, 1955; Discipline, sec. 1, par. 4, pg. 22; and also was in violation of the Manual of Rules and Regulations of the Police Department, City of East St. Louis, Illinois, dated January 1, 1955; Discipline, sec. 1, par. 5, pg. 22, ‘Immoral Conduct.’
4. During the period between March 1984, and August 16, 1984, McHenry encouraged, permitted and allowed Cornelia Conley, a female minor age 14, to engage in sexual intercourse with others at his residence located at 553 Gray Boulevard, East St. Louis, Illinois, while said female was on runaway status from the State of Illinois Department of Children and Family Services. That such actions constitute immoral conduct in violation of the Manual of Rules and Regulations of the Police Department, City of East St. Louis, Illinois, dated January 1, 1955; Discipline, sec. 1, par. 5, pg. 22.”

The hearing on these charges began on October 4, 1984. The Board heard the testimony of several witnesses, including the direct examination of Cornelia Conley (Conley). The hearing was continued until October 11, 1984, at which time Conley was cross-examined briefly by McHenry’s counsel. The cross-examination was cut short when Conley refused to answer further questions. The Board then consulted the St. Clair County State’s Attorney’s office concerning the possibility of a grant of immunity to Conley. The State’s Attorney’s office declined to grant Conley immunity because it feared that granting her immunity would damage a possible criminal case against McHenry and because juvenile petitions were pending against Conley. The Board then moved to continue the proceedings on the charges against McHenry until the other matters were fully resolved.

Shortly thereafter McHenry was indicted by the St. Clair County, Illinois, grand jury on charges of aggravated criminal sexual abuse and contributing to the delinquency of a minor. A hearing was held on October 30, 1984, to convert McHenry’s suspension with pay to one without pay. After hearing the testimony of Chief Wren, the Board voted to suspend McHenry without pay. On October 25, 1985, the criminal charges pending against McHenry were dismissed.

The next hearing before the Board occurred on December 10, 1985. At that time McHenry’s counsel attempted to continue his cross-examination of Conley, who had been granted immunity. However, her response to most of McHenry’s counsel’s questions was “I don’t recall.”

The Board entered its order discharging McHenry from the police force on February 11, 1986. It amended this order on February 21, 1986, to include its findings of fact. The Board found that McHenry committed all the acts described in the charges set forth above. McHenry filed his complaint in the St. Clair County circuit court on February 14, 1986. As noted above, the trial court found the Board’s findings were against the manifest weight of the evidence and that the delay in the proceedings violated McHenry’s rights to due process of law. On appeal the City of East St. Louis contends that the trial court erred in finding that the Board’s decision was against the manifest weight of the evidence and that the delay in the proceedings violated McHenry’s rights to due process of law. We feel that the trial court’s decision, insofar as it relates to paragraphs 3 and 4 of the charges against McHenry, was correct. However, we believe that the trial court erred in finding that the Board’s decision regarding paragraphs 1 and 2 was against the manifest weight of the evidence. Additionally, we do not believe that McHenry’s due process rights were violated.

In disciplinary proceedings against police officers, the trial court, in reviewing the agency’s decision, is limited to ascertaining whether the agency’s findings were contrary to the manifest weight of the evidence. (Moriarty v. Police Board (1972), 7 Ill. App. 3d 978, 289 N.E.2d 32.) The agency’s finding cannot be said to be against the manifest weight of the evidence unless it appears from the record that the opposite conclusion is clearly evident. (King v. City of Chicago (1978), 60 Ill. App. 3d 504, 508, 377 N.E.2d 102, 106.) Additionally, the findings of the Board on questions of fact are to be deemed prima facie true and correct. (Rispoli v. Police Board (1989), 188 Ill. App. 3d 622, 635, 544 N.E.2d 1063, 1072.) Moreover, the assessment of the credibility of the witnesses is a matter for the trier of fact, who observed their demeanor. Douglas v. Daniels (1978), 64 Ill. App. 3d 1022,1028, 382 N.E.2d 90, 95.

Paragraph 1 of the charges against McHenry alleged that he allowed Conley, a 14-year-old runaway, to live with him. McHenry testified not only that Conley had never lived with him but also that he had only spoken to her very briefly on two prior occasions. However, ample evidence was presented at the hearing from which the Board could conclude that Conley did in fact live with McHenry. John Lee Gilbert testified that he lived four houses down the street from McHenry and that McHenry’s front door and porch were visible from his home. He testified that he had seen Conley enter and exit McHenry's home several times in June 1984. He testified that he saw Conley at McHenry’s home “mostly every day” in July of 1984. He also testified that he saw Conley and McHenry enter and exit McHenry’s home together on approximately five occasions. In addition, he stated that he had seen Conley enter McHenry’s home at all hours of the day.

Brenda Andrews testified that during March through August 1984, she lived with her grandmother two houses away from McHenry. She testified that during this time she had seen Conley enter and exit McHenry’s home several times. She also stated that she saw McHenry and Conley entering and exiting McHenry’s home together between 5 and 10 times.

Rodney Brown testified that he lived two houses away from McHenry from February through August 1984 and that he knew McHenry through McHenry’s son. Brown stated that he saw Conley enter and exit McHenry’s home approximately seven times. He also stated that he saw Conley and McHenry enter the house together once or twice.

While Conley also testified that she lived with McHenry, we feel that the testimony summarized above was sufficient, in and of itself, to support the Board’s finding that Conley lived with McHenry We note also that Conley téstified that McHenry had previously run a record check on her sometime between September and December 1983. On cross-examination, Conley stated that McHenry told her the record check revealed that she was a juvenile runaway. We feel that from this evidence the Board could properly infer that McHenry was aware of the fact that Conley was a runaway during the time she lived with him.

The foregoing review of the record makes it clear that the Board’s findings with respect to paragraphs 1 and 2 of the charges filed against McHenry were not against the manifest weight of the evidence.

We do agree with the trial court, however, that the Board’s findings concerning paragraphs 3 and 4 are against the manifest weight of the evidence. Paragraph 3 alleges that Officer McHenry had sexual intercourse with Conley. The only evidence which tends to support this allegation is the testimony of various witnesses which indicates that Conley lived with McHenry and the direct testimony of Conley wherein she stated that she had sexual intercourse with McHenry. A review of the record, however, reveals that Conley initially told Officer Brewer that she had intercourse with McHenry only one time. Subsequently, Conley informed Officer Brewer that she and McHenry engaged in sexual intercourse on more than one occasion. On October 4, 1984, Conley testified that she had sexual intercourse with McHenry every night from March through August 1984. Paragraph 4 alleges that Officer McHenry allowed and encouraged Conley to have sexual intercourse with others. The only evidence which tends to support this allegation is the testimony of various witnesses which indicates that men were seen entering McHenry’s home and the direct testimony of Conley wherein she states that McHenry encouraged and allowed her to have sexual intercourse with these individuals.

On December 10, 1985, on cross-examination Conley testified that she did not remember ever engaging in sexual intercourse. When questioned further she stated that she could not remember ever having sexual intercourse with anyone except McHenry. She did not, however, remember when this event occurred. The confusion in Conley’s earlier testimony surrounding the sex charges and her later lack of memory require us to conclude that the Board’s determination that McHenry engaged in sexual intercourse with Conley and that he encouraged and allowed her to engage in sexual intercourse with others is against the manifest weight of the evidence.

The trial court also held that the delay in these proceedings violated McHenry’s right to due process of law. The charges set forth above were filed with the Board by Chief Wren on September 6, 1984. The hearing began on October 4, 1984, and after the first continuance was granted it resumed on October 11, 1984. At the October 11, 1984, proceeding, Conley, after brief cross-examination by McHenry’s counsel, exercised her fifth amendment right and refused to answer further questions. After learning that Conley would not be granted immunity because of the possibility that it might damage the State’s criminal case against McHenry and because juvenile petitions were pending against Conley, the Board stated that the matter would be continued until the criminal proceedings were resolved. The criminal charges were formally brought against Officer McHenry on October 5, 1984, but were subsequently dismissed October 25, 1985. In addition, Conley had by that time been granted immunity by the State’s Attorney’s office. The hearing on the civil charges was concluded on December 10, 1985.

The discharge of police officers is governed by section 10— 2.1 — 17 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—17). The statute provides in pertinent part:

“§10 — 2.1—17. Removal or discharge — Investigation of charges — Retirement. Except as hereinafter provided, no officer or member of the fire or police department of any municipality subject to this Division 2.1 shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense. *** The board of fire and police commissioners shall conduct a fair and impartial hearing of the charges, to be commenced within 30 days of the filing thereof, which hearing may be continued from time to time.” (Emphasis added.)

The plain wording of the statute clearly indicates that the Board may continue the case from time to time in its discretion.

Moreover, counsel for McHenry did not clearly object to the continuance until December 11, 1985, when the hearing was actually resumed. In fact, at the earlier proceedings McHenry’s counsel encouraged the Board to delay the matter until the criminal case was resolved. At the October 4, 1984, proceedings, counsel for McHenry, in his opening remarks, stated that the hearing should be delayed until the criminal matter was fully resolved because he did not believe the Board would get a true and accurate picture of the case. During the October 11, 1984, proceeding, after Conley refused to answer questions, McHenry’s counsel stated:

“Our position is the hearing would have to stop at that point. Either we say hold it in abeyance or dismiss it, one or the other, the chief witness will not testify.

Rather than get us into this circular motion again, particularly if there is, in fact, a pending Grand Jury, we may well be able to resolve it if they would simply indicate they will wait until the outcome of the Grand Jury. We will all be protected.

The Board then will be doing the normal course of events of most cases, the criminal charges are completed one way or another.”

Shortly thereafter, when the Board learned that Conley would not be granted immunity, the Board chairman asked if there would be any objections to continuing the case until the criminal matter was resolved. Counsel for the city stated:

“Well, based upon the phone call that the attorney for the Board received indicating no immunity for the witness, I can understand the dilemma the Board is faced with.

I would have no objection to the continuance, with the exception that the City would want the continuance be granted [sic] but that Officer McHenry have his pay withheld from him pending the reinstitution of this hearing.”

McHenry’s counsel responded:

“In response thereto, I would indicate to the Board the very reason that the matter is carried over is a prosecution witness is taking the Fifth Amendment. The respondent has done nothing to create the continuance, has done nothing to cause the dilemma, that we, in fact, kind of informed the Board ahead of time this will come to pass.

I don’t see why he should be punished because a witness for the Petitioner here is refusing to answer the questions before this Board.”

It appears that McHenry’s counsel’s objection was not to the continuance itself, but to counsel’s argument that Officer McHenry should be suspended without pay. In response to these arguments, the Board voted to continue the matter with Officer McHenry remaining on suspension with pay. Under these circumstances, we cannot say that the delay in the conclusion of these proceedings violated McHenry’s right to due process of law.

McHenry also argues that his due process rights were violated because he was unable to finish his cross-examination of Conley. We note that the only testimony of Conley necessary to support the Board’s decision on paragraphs 1 and 2 is her statement that McHenry was aware that Conley was a runaway. McHenry’s counsel was afforded the opportunity to cross-examine and did in fact cross-examine Conley on this point at the proceedings held on October 11, 1984. Because we agree with the trial court’s decision that the Board’s decision on paragraphs 3 and 4 was against the manifest weight of the evidence, any further discussion of this issue is unwarranted.

The only remaining question for us to decide is whether we must remand this case to the Board to determine if paragraphs 1 and 2 warrant termination of McHenry from the East St. Louis Police Department. In Douglas v. Daniels (1978), 64 Ill. App. 3d 1022, 382 N.E.2d 90, the court stated:

“While it is true that where only the less serious findings of the Board are sustained on appeal, the cause should be remanded to determine whether the lesser charges in themselves are cause for discharge [sic]. [Citation.] We will not remand as we cannot say that the charges sustained by the evidence were of a lesser stature than those not sustained. To the contrary we believe the record reveals acts which render plaintiff’s continuance as a police officer detrimental to the discipline and efficiency of the service.” (Douglas, 64 Ill. App. 3d at 1029, 382 N.E.2d at 95.)

Moreover, a single valid finding of a violation of departmental rules will authorize dismissal. (King, 60 Ill. App. 3d at 508, 377 N.E.2d at 106; Moriarty, 7 Ill. App. 3d at 982, 289 N.E.2d at 35.) We feel that the commission of the acts set forth in paragraphs 1 and 2 by McHenry render his continuance as a police officer for the City of East St. Louis a detriment to the efficiency of the department and to society in general. We, therefore, reverse the judgment of the circuit court and remand the cause with directions to enter a judgment restoring the decision of the East St. Louis Fire and Police Board discharging McHenry from his position with the East St. Louis police department.

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

HARRISON and WELCH, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE RARICK JUSTICE HARRISON,

license: Public Domain

text:
    THE CITY OF CARBONDALE, Plaintiff-Appellant, v. THE CITY OF MARION et al., Defendants-Appellees.
    Fifth District
    No. 5 — 90—0156
    Opinion filed March 22, 1991.

      HARRISON, J., dissenting.
    Don E. Prosser, of Gilbert, Kimmel, Huffman & Prosser, Ltd., of Carbondale, for appellant.
    Michael M. Conway and John F. Zabriskie, both of Hopkins & Sutter, of Chicago, and Garrison & Speroni, of Marion (John Speroni, of counsel), for appellee City of Marion.
    James B. Bleyer, of Bleyer & Bleyer, of Marion, and Husch, Eppenberger, Donohue, Cornfeld & Jenkins, of St. Louis, Missouri (Gregory R. Smith and Matthew D. Menghini, of counsel), for appellee Antonia-Marion, Inc.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

The City of Carbondale (Carbondale) brought an action in the circuit court of Williamson County against the City of Marion (Marion) and Antonia-Marion, Inc., seeking declaratory and injunctive relief. Carbondale sought to have Marion’s plan to use tax increment financing to subsidize the development of a retail shopping mall declared illegal and an injunction prohibiting Marion and the developer, Antonia-Marion, from proceeding with the project. Both defendants filed motions to dismiss, arguing that Carbondale lacked standing to challenge the implementation of the plan. The trial court agreed and dismissed Carbondale’s complaint. We affirm.

Carbondale and Marion are both municipal corporations located in southern Illinois, approximately 19 miles apart. Carbondale is located in Jackson County, and Marion is located in Williamson County. In July 1987, Marion adopted a redevelopment plan involving the use of tax increment financing pursuant to the Tax Increment Allocation Redevelopment Act (the Act) (Ill. Rev. Stat. 1985, ch. 24, par. 11 — 74.4— 1 et seq.). One of the projects was a regional shopping mall. Prior to the trial court’s decision, an ordinance was passed designating the property upon which the mall is to be built a separate redevelopment project area.

In its complaint, Carbondale alleged, inter alia, that the property upon which the mall was to be built was not “blighted” within the meaning of the Act and that the use of tax increment funds to finance the project was therefore illegal. Carbondale also alleged that the University Mall, the only regional shopping mall within 60 miles, was located within its city limits, that the shopping mall proposed by Marion would compete directly with the University Mall, and that Carbondale would lose sales tax revenues in excess of $300,000 attributable to reduced retail sales if the defendants were allowed to proceed with their plan. Carbondale further alleged “on information and belief” that Marion and Antonia offered “TIF subsidies and revenues” to an anchor tenant in the University Mall to entice it to move to the new mall, that this tenant publicly indicated that it would be moving to the new mall, and that defendants could be “expected” to make similar attempts to lure other businesses away. The loss of this anchor tenant, Carbondale alleged, would result in the loss of $150,000 in sales tax receipts and an undetermined amount of property tax receipts.

The defendants filed motions to dismiss, challenging Carbondale’s standing, and after a hearing on the motions, the trial court dismissed Carbondale’s complaint. The court gave the following reasons for its decision:

1. The City of Carbondale failed to show standing under either the zone of interest or direct injury test, whether the tests are applied separately or together.

2. Allowing Carbondale standing to sue under the circumstances would invite intercity warfare, which is contrary to public policy.

3. Carbondale’s real argument was with the Act itself and the philosophy behind it.

4. Any allegedly improper or illegal actions on the part of Marion would still be subject to challenge by any number of individuals or entities, such as Marion taxpayers, landowners, or residents. The court indicated that these were the types of entities or persons who would suffer the type of direct injury contemplated by the courts.

5. There is no law insulating one city from competition of another where, by implementation of a State statute, the latter derives an economic advantage over the former.

6. It would be poor public policy to allow one municipality to challenge another’s attempts to utilize State statutes applicable to all municipalities.

This appeal followed.

Our supreme court examined the doctrine of standing in Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 524 N.E.2d 561. In Greer, our supreme court considered whether Illinois should adopt the “zone of interest” test as an additional requirement of standing. The zone of interest test requires that a plaintiff show that the interest he asserts lies within the zone of interests sought to be protected by the statute in question. The court in Greer held that “standing in Illinois requires only some injury in fact to a legally cognizable interest.” (Greer, 122 Ill. 2d at 492, 524 N.E.2d at 574-75.) The court went on to hold that “the claimed injury, whether ‘actual or threatened’ [citation], must be: (1) ‘distinct and palpable’ [citation]; (2) ‘fairly traceable’ to the defendant’s actions [citation]; and (3) substantially likely to be prevented or redressed by the grant of the requested relief [citations].” Greer, 122 Ill. 2d at 492-93, 524 N.E.2d at 575.

Carbondale argues on appeal that the trial court abused its discretion in granting the motion to dismiss. Whether to grant a motion to dismiss is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. (Knox College v. Celotex Co. (1981), 88 Ill. 2d 407, 430 N.E.2d 976.) Carbondale maintains that it has set forth a distinct and palpable injury in the form of lost sales and property tax receipts. Defendants argue, however, that the only persons or entities who would have a right to challenge Marion’s use of tax increment financing are the taxing bodies who otherwise would be entitled to the incremental tax revenue and the citizens who pay the taxes. Defendants further argue that Carbondale’s “injury” would be the result of economic competition and that freedom from competition is not a legally cognizable right. With respect to Marion’s first argument, Carbondale clearly would not be entitled to the incremental tax revenue generated by the redevelopment area, nor is it a Marion taxpayer. Carbondale’s claim of “injury” is based solely on lost sales tax revenue from businesses at the University Mall, and the possibility that some businesses located there would relocate to the new mall in Marion, resulting in lost real estate tax receipts. These alleged injuries are not sufficient to confer standing. With respect to the lost sales tax receipts, Marion’s purportedly illegal use of tax financing to subsidize the mall would not be the cause of Carbondale’s injury. The injury would be the result of decreased sales which would in turn be the result of increased economic competition. This injury is remote and not, in our judgment, fairly traceable to the defendants’ conduct. (See Simon v. Eastern Kentucky Welfare Rights Organization (1976), 426 U.S. 26, 48 L. Ed. 2d 450, 96 S. Ct. 1917.) Were this allegation of injury sufficient to confer standing, then any individual or entity which derived income from the sales activities of businesses located in the University Mall would likewise have standing to challenge the redevelopment project. To grant standing based upon such “injury,” we would have to give the phrases “distinct and palpable injury” and “fairly traceable to the defendant’s actions” interpretations of such sweeping breadth as to render them meaningless.

As to the allegation of injury based upon lost property tax receipts, we do not find such injury to be “distinct and palpable.” Carbondale alleged that “upon information and belief” defendants offered one of the anchor tenants in the University Mall incentives in the form of relocation costs and rent accommodations to be paid with tax increment financing to entice it to move, and could be “expected” to offer the same incentives to other businesses. Even accepting these statements as true, they hardly set forth a “distinct and palpable” injury. Carbondale does not allege that the anchor tenant left because of incentives offered by the defendants, or that the defendants are even offering incentives to other businesses. This alleged “injury” is speculative at best and affords Carbondale no standing to challenge the redevelopment project.

Carbondale cites Village of Barrington Hills v. Village of Hoffman Estates (1980), 81 Ill. 2d 392, 410 N.E.2d 37, for the proposition that one city may challenge the decisions of another where the actions of the defendant city would cause loss of revenue and special damages affecting the plaintiff city’s governmental operations. In that case, Barrington Hills objected to Hoffman Estate’s rezoning of certain property to permit construction of an open-air music theater. The damages alleged in that case were increased municipal outlays for more police manpower and squad cars to monitor traffic congestion, the expense of clearing litter which would result from the crowds, increased noise from the music and crowds, and lost real estate taxes resulting from a diminution in property values. The court in Barrington Hills found that the plaintiff municipality had standing because these effects “portend direct, substantial and adverse effects upon the plaintiff municipalities in the performance of their corporation obligations.” (Barrington Hills, 81 Ill. 2d at 398, 410 N.E.2d at 40.) These effects, unlike the alleged injuries in the present case, are the types of “distinct and palpable” injuries contemplated by the Greer court, injuries which are the direct consequence of the defendant city’s actions. We note that one of the effects mentioned by the Barrington Hills court was lost real estate taxes resulting from diminution in property value of the property near the theater. Diminution of property value is a legally cognizable interest. (Greer, 122 Ill. 2d at 493, 524 N.E.2d 575.) Although Carbondale also alleges that it will lose an undetermined amount of property tax revenues, such allegation is based only upon the speculation that business entities will leave the University Mall. It does not allege that the value of the University Mall property will be diminished. The diminution of property value and corresponding loss of tax revenues is both speculative and remote.

Carbondale also argues that the court erred in finding that Carbondale was outside the “zone of interest” of the Act and therefore lacked standing. Carbondale maintains that the “zone of interest” test is not a requirement of standing in Illinois. As we indicated above, Carbondale is correct in this assertion. The trial court did not, however, dismiss Carbondale’s complaint based solely on its failure to meet the “zone of interest” requirement. The trial court also found that Carbondale failed to show any injury in fact to a legally cognizable interest. The trial court specifically stated Carbondale failed to demonstrate standing under either the direct injury or zone of interest test and that regardless of which theory was employed, Carbon-dale could not show standing to challenge the actions of the defendants. Carbondale argues that it falls within the Act’s “secondary protections” and so meets the zone of interest test. We note, however, that the “zone of interest” requirement was not considered by the court in Greer as a separate theory of standing, but as an additional requirement in cases involving a statute or regulation. The trial court’s finding that Carbondale failed to demonstrate a direct injury was therefore dispositive of defendant’s motions to dismiss, and our conclusion that Carbondale has shown no injury to a legally cognizable interest is dispositive of this appeal.

Carbondale’s final argument is that public policy requires reversal of the trial court’s decision. Carbondale maintains that Marion is using illegal tax subsidies to engage in unlawful economic competition, and that by denying it standing to challenge the redevelopment project, the trial court has denied Carbondale the right to seek redress for the injury it has suffered. This argument begs the question. The “injury” Carbondale alleges to have suffered is to an interest which is not legally cognizable as Carbondale is neither a resident nor taxpayer of Marion. Further, we believe, as did the trial court, that public policy considerations militate against granting Carbondale standing. If adverse economic impact alone were found to be sufficient grounds for standing to challenge the use of tax subsidies, even though that use may be improper, the result would spawn a torrent of litigation and foster a climate ripe for economic warfare between competing municipalities.

We note further that the allegedly improper use of TIF tax subsidies will not go unchallenged. In Castel Properties v. City of Marion, No. 89 — CH—2, an action pending in Williamson County, certain Marion taxpayers are challenging the redevelopment plan. Castel Properties itself is owned by Heitman Financial, Ltd., a Chicago-based company with a financial interest in the University Mall. Castel Loan Corp. was formed for the purpose of purchasing property in Marion so it could intervene.

Carbondale fails to demonstrate a distinct and palpable injury to any legally cognizable interest and therefore does not have standing to challenge the redevelopment project.

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

Affirmed.

WELCH, J., concurs.

JUSTICE HARRISON,

dissenting.

The majority holds that the City of Carbondale’s complaint was properly dismissed because it did not adequately allege facts which, if true, would establish that Carbondale had standing to bring this action. In so doing, the majority assumes that the burden of alleging standing lay "with Carbondale. This is not so. Under our supreme court’s ruling in Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 494, 524 N.E.2d 561, 575, Carbondale had no burden to plead and prove standing. Rather, it was defendants’ burden to plead and prove lack of standing.

There is nothing in the allegations in Carbondale’s complaint which would entitle defendants to the judgment that Carbondale lacks standing to bring this action. To the contrary, I believe that those allegations are sufficient to show that such standing exists. Carbondale avers that the illegal use of tax financing to subsidize the proposed regional shopping mall will result in a substantial decline in its tax revenues because the new mall will lure customers and merchants from an existing mall located within the city’s boundaries. In making this plea, Carbondale does not claim that it is entitled to be protected from competition as such. Its point, rather, is that it should not be forced to suffer the adverse economic effects of a competition made possible only through violation of State law. Such adverse economic consequences are, in my view, no less distinct and palpable an injury and are no less traceable to the defendants’ actions than the damages alleged in Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 524 N.E.2d 561, and Village of Barrington Hills v. Village of Hoffman Estates (1980), 81 Ill. 2d 392, 410 N.E.2d 37.

The majority contends that Carbondale cannot be said to have sustained injury to a legally cognizable right because it is neither a resident nor a taxpayer of Marion. In advancing this position, the majority has, in effect, embraced the very “zone-of-interests” test which our supreme court expressly declined to adopt in Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 491-92, 524 N.E.2d 561, 574.

The majority also attempts to make much of the fact that the economic injury feared by Carbondale remains speculative. Our supreme court has made quite clear, however, that a party need not have sustained actual damage before being entitled to bring suit and that the lack of immediate, ascertainable damages is not itself a barrier to the grant of declaratory and injunctive relief. Allegations that an injury is threatened will suffice. 122 Ill. 2d at 493-94, 524 N.E.2d at 575.

The majority’s “public policy” analysis is similarly flawed. Under Illinois law, standing requires only some injury in fact to a legally cognizable interest, and the claimed injury must be (1) distinct and palpable, (2) fairly traceable to the defendant’s actions, and (3) substantially likely to be prevented or redressed by the grant of the requested relief. (122 Ill. 2d at 492-93, 524 N.E.2d at 575.) These are the factors we must consider. Where, as here, those factors are adequately alleged, it seems to me that, by definition, public policy mandates that a plaintiff be permitted to pursue his cause of action.

The majority raises the spectre of “torrents” of litigation which will follow if standing is found here, but we should not look for a way around the law simply because we are concerned that other litigation involving other litigants may result. If those litigants have also been injured, they, too, are entitled to seek redress, and it is the obligation of the courts of this State to hear their complaints. We exist to resolve disputes, not to avoid them.

The majority asserts that if Carbondale were permitted to proceed, the result would “foster a climate ripe for economic warfare between competing municipalities.” Even if there were some basis in the record for this claim, and there is not, I could not understand the majority’s concern. I have always thought that competition between economic rivals was supposed to be a good thing. In any case, I scarcely see how fostering competition can possibly harm the public interest when it results from enforcement of State law.

The majority attempts to find solace for its result in the fact that another action by different plaintiffs is now pending in the same circuit court for the same wrongful conduct alleged here. The existence of this second action raises the possibility that the litigation could be consolidated into a single proceeding, but I do not understand how it bears on the issue of Carbondale’s standing. Nothing in the Illinois law of standing, indeed, no principle of American jurisprudence, sanctions the abridgement of a party’s right to seek redress for a legally cognizable injury simply because other injured parties have also sued for the same wrong.

For the foregoing reasons, I would reverse the judgment of the circuit court and remand to permit Carbondale to proceed with its cause of action.


author: JUSTICE HOWERTON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID ALLEN ANDRUS, Defendant-Appellant.
    Fifth District
    No. 5 — 89—0785
    Opinion filed March 22, 1991.

      Daniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Dennis Doyle, State’s Attorney, of Waterloo (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court;

A presentence report, save one exception not applicable here, must be presented to and considered by the circuit court before sentencing a felon. Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 3—1.

Defendant was convicted of deceptive practice over $150, a Class 4 felony. The circuit court sentenced defendant to serve six years in prison. Before sentencing, the circuit court ordered a presentence report limited exclusively to defendant’s criminal history.

Two issues are presented: (1) whether this limitation was error; and (2) if so, whether defendant waived the error by not objecting to the limitation.

Two Illinois Supreme Court cases, People v. Youngbey (1980), 82 Ill. 2d 556, 413 N.E.2d 417, and People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9, address these issues.

Section 5 — 3—2 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 3—2(a)) prescribes the content of the presentence report:

“(a) In felony cases, the presentence report shall set forth:
(1) the defendant’s history of delinquency or criminality, physical and mental history and condition, family situation and background, economic status, education, occupation and personal habits;
(2) information about special resources within the community which might be available to assist the defendant’s rehabilitation, including treatment centers, residential facilities, vocational training services, correctional manpower programs, alcohol and drug abuse programming, psychiatric and marriage counseling, and other programs and facilities which could aid the defendant’s successful reintegration into society;
(3) the effect the offense committed has had upon the victim or victims thereof, and any compensatory benefit that various sentencing alternatives would confer on such victim or victims;
(4) information concerning the defendant’s status since arrest, including his record if released on his own recognizance, or the defendant’s achievement record if released on a conditional pre-trial supervision program;
(5) when appropriate, a plan, based upon the personal, economic and social adjustment needs of the defendant, utilizing public and private community resources as an alternative to institutional sentencing; and
(6) any other matters that the investigatory officer' deems relevant or the court directs to be included.”

In Youngbey (82 Ill. 2d 556, 413 N.E.2d 417), two defendants were convicted of unlawful use of weapons. Defendants and the State agreed to waive the presentence investigation and requested an immediate sentencing hearing. The court sentenced one defendant to four years and the other to 21/2 years in prison.

Youngbey presented the question whether, in the absence of an agreed-upon sentence, a presentence investigation report was a mandatory requirement in felony cases under the act, and if so, whether such a requirement could be waived by the defendant. The court held that “the presentence investigation and report is a mandatory legislative requirement which cannot be waived except in accordance with the exception in the statute.” (People v. Youngbey, 82 Ill. 2d at 561, 413 N.E.2d at 419.) That one exception occurs when the State and the defendant agree to a sentence. That exception occurred in neither Youngbey nor the case at bar.

The Youngbey court noted that prior to 1978, the act permitted a defendant to waive the presentence investigation and report. The supreme court determined that in amending the statute, the legislature intended to dispose of defendant’s ability to waive the investigation and report because the report was a “tool for the sentencing judge.” (People v. Youngbey, 82 Ill. 2d at 565, 413 N.E.2d at 421.) Therefore, the report was not so much for the benefit of the defendant, but rather was for the enlightenment of the court. Thus, a presentence investigation and report was not a personal right of defendant which could be waived. People v. Youngbey, 82 Ill. 2d at 565, 413 N.E.2d at 421.

In Meeks (81 Ill. 2d 524, 411 N.E.2d 9), defendant was convicted of three counts of unlawful delivery of a controlled substance. The circuit court ordered a presentence investigation and report. The report contained factual errors and was incomplete in that it omitted sentencing alternatives and community programs that might assist defendant’s rehabilitation. Defendant moved to correct the factual errors, but did not object to the omissions. Meeks was sentenced to three consecutive, two-year prison terms. Defendant appealed, complaining of the omission of sentencing alternatives and programs within the community which would assist defendant’s rehabilitation, a ground of appeal that had not first been presented to the circuit court.

The supreme court said that sentencing upon the report was erroneous, but held that defendant had waived review of this issue by failing to object at the sentencing hearing.

Youngbey and Meeks illustrate that section 5 — 3—2 of the Code is a mandatory legislative requirement that must be followed prior to sentencing a felon. The circuit court, therefore, erred in ordering the presentence report limited solely to defendant’s criminal history.

The second issue, waiver, is now addressed. If read superficially, Youngbey and Meeks seem to present a paradox: a presentence report cannot be waived (with one statutory exception); however, if defendant fails to object, the error is waived. There is, however, no real paradox, for Meeks deals with counsel’s failure to preserve an issue for appeal, while Youngbey deals with a court deviating from the legislative mandate contained in the statute.

If we focus on the acts of the court and the parties in each of the two cases, we believe the true teaching of Youngbey and Meeks can be discerned. In Youngbey, the court did not order a presentence investigation and report. It is true that the State and defendant had agreed to dispense with the report, but that agreement was made even though they had not agreed to the sentence to be imposed, and therefore, the agreement was in violation of the statute. In consequence, that agreement could not form the basis for allowing the court to dispense with the report, and the court, therefore, erred. Youngbey teaches that a court cannot willfully deviate from the requirements laid down in section 5 — 3—2 by the legislature.

In contrast, the Meeks court ordered a complete presentence report, but it came back incomplete. The failure of counsel to object to the omissions operated as a waiver of the issue on review.

The difference between the two cases is apparent. It is one thing for the court to order a presentence report that contains less than what is required by statute. It is another for the court to receive less than what is ordered and counsel to fail to object to omissions. In the former, the court ignores the law; in the latter, counsel ignores his duty. We believe that Youngbey condemns the former, while Meeks condemns the latter. Youngbey does not impose waiver on the former, while Meeks does impose it on the latter.

In this light, Youngbey is directly applicable to the facts of this case, because an act of the court, rather than an act of counsel, is involved. Therefore, under Youngbey, we can and do take note of defendant’s claim and review it.

In review of that error, however, there is one further distinction between this case and Youngbey. In this case, there is a limited presentence report, while in Youngbey, there was no report. We hold that this is a distinction without a difference. We believe that the statute is mandatory, that the statute must be fully adhered to by the court, and that the statute makes no provision, in a felony case, that would allow a court to order less than what is required under the statute. Anything less is too little.

A court, therefore, cannot order a partial presentence report, and this error cannot be waived. On the other hand, a presentence report that is ordered under circumstances that make clear that a full presentence investigation and report was contemplated, but nevertheless is returned incomplete, must have specific objections lodged thereto, and any failure to object will work a waiver of any error or omission.

Upon review, we find that the circuit court erred by limiting the presentence report exclusively to defendant’s criminal history, and therefore, reverse and remand for a new sentencing hearing consistent with the mandate of section 5 — 3—2(a) of the Unified Code of Corrections.

Reversed and remanded.

LEWIS and CHAPMAN, JJ., concur.


author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY BATTERSHELL, Defendant-Appellant.
    Fifth District
    No. 5 — 89—0701
    Opinion filed March 25, 1991.
    Brent D. Holmes, of Harlan Heller, Ltd., of Mattoon, for appellant.
    Jon C. Anderson, State’s Attorney, of Robinson (Kenneth R. Boyle, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

This case originated with the defendant, a lawyer, being charged with the offense of tampering with public records in that he forged the signature of a circuit judge in Crawford County, Illinois, and caused the order to be file-stamped with the file mark of the circuit clerk of that county. Larry Battershell pled guilty to that charge and was sentenced to the maximum amount of probation under the statute, 30 months. In addition to the general terms of probation, Battershell was also ordered to pay a $5,000 fine, to perform 240 hours of public service, and to refrain from engaging “in the practice of law in this state or any other jurisdiction during the term of his probation.” The original order of probation was entered on December 30, 1987.

On July 17, 1989, Battershell admitted in response to a petition to revoke his probation that he had violated a condition of his probation by failing to cooperate in attending probation appointments. On September 15, 1989, the trial court modified its original probation order by adding one year of probation to the original 30 months and including a term of incarceration in the Crawford County jail for a period of 10 consecutive weekends. The order precluding Battershell from practicing law during the period of his probation was obviously extended by the 12-month extension of the probationary period.

Battershell appeals from the court’s order of September 15, 1989, which modified the original probation order. Three issues are presented on appeal: (1) whether the court abused its discretion in ordering the defendant to serve weekend time in jail; (2) whether the court abused its discretion in extending the defendant’s term of probation by adding 12 months onto the original sentence of probation; and (3) whether the court had the power to order the defendant to refrain from engaging in the practice of law as a condition of his probation.

The first two points will be addressed together since defendant’s position is essentially the same on both issues. Defendant contends that probation was not revoked for any egregious violation, but only for failing to keep in touch with the probation department in Indiana. He also argues that this technical violation was understandable since there was some confusion with regard to where the defendant was to report and which department’s public service work was to be completed first. Finally, he argues that the trial court was overly concerned with the fact that no part of his fine had been paid and only a small percentage of his public service work completed. Defendant correctly points out that under the terms of the order neither of these conditions had to be fully complied with until the end of the original probationary period.

With regard to the last condition, we think the language of People v. Cottrell (1986), 141 Ill. App. 3d 364, 490 N.E.2d 950, is appropriate:

“Although the defendant was not obligated to pay the entire amount within the first 16 months of his original probation, his lack of any effort during that time was certainly relevant to his character.” (Cottrell, 141 Ill. App. 3d at 368, 490 N.E.2d at 952.)

While it appears that the defendant’s financial ability to pay the fine and costs was limited during the period involved, there is no satisfactory explanation of his failure to make a more significant inroad into his public service obligation. We find that the court could properly consider this factor. People v. Young (1985), 138 Ill. App. 3d 130, 485 N.E.2d 443.

In order to reduce the trial court’s sentence, we must first find a manifest and arbitrary abuse of its discretion. (People v. Shockley (1977), 54 Ill. App. 3d 1041, 370 N.E.2d 551.) Defendant was originally convicted of a Class 4 felony for which he could have been imprisoned for not less than one year and not more than three years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(7).) When his probation was revoked, he could have been sentenced to any sentence that would have been appropriate for the original offense. (People v. Horton (1987), 160 Ill. App. 3d 513, 513 N.E.2d 502.) We find no abuse of discretion in the court’s sentence of an additional 12 months of probation or on the sentence of the 10 weekends in jail.

We now turn to the question of the trial court’s power to order the defendant to refrain from practicing law as a condition of his probation. Since the term of probation has expired at the time of appeal, we could decline to address this issue on grounds of mootness. However, it is a question of an unusual nature (Wayland v. City of Chicago (1938), 369 Ill. 43, 15 N.E.2d 516), and one of substantial public interest (Partney v. Dallas (1969), 111 Ill. App. 2d 261, 250 N.E.2d 166), and we will therefore address it.

Another preliminary matter raised by the State is its claim that this court has no jurisdiction to address this contention. The State contends that this issue is not properly before the court because it is really an attack upon the court’s original order of probation rather than an issue arising out of the revocation proceeding only. (See People v. Eisenberg (1982), 109 Ill. App. 3d 98, 440 N.E.2d 259.) Without engaging in any discussion as to whether or not the first order was void and therefore subject to attack at any time (People v. Perruquet (1989), 181 Ill. App. 3d 660, 537 N.E.2d 351), or whether we are precluded from considering the issue because of the defendant’s failure to file a notice of appeal from the original order (People v. Green (1989), 188 Ill. App. 3d 1027, 544 N.E.2d 1307), we conclude that the defendant is, at a minimum, entitled to challenge the imposition of the sentence which precludes him from practicing law for the additional 12-month probationary period imposed upon him at the time of the revocation of the original probation.

Turning to the merits of the defendant’s position on this point, it is, simply stated, that the supreme court has the exclusive authority to regulate the practice of law in Illinois and, therefore, the circuit court’s order requiring the defendant to refrain from engaging in the practice of law during the period of his probation was improper. The defendant cites In re Application of Day (1899), 181 Ill. 73, 54 N.E. 646, In re Nesselson (1979), 76 Ill. 2d 135, 390 N.E.2d 857, In re Mitan (1987), 119 Ill. 2d 229, 518 N.E.2d 1000, People ex rel. Brazen v. Finley (1988), 119 Ill. 2d 485, 519 N.E.2d 898, and In re Jafree (1982), 93 Ill. 2d 450, 444 N.E.2d 143, in support of his position.

It is true that the above cases contain statements by the supreme court of Illinois which reflect its concern over legislative encroachment upon its ability to regulate the practice of law in Illinois and with piecemeal judicial encroachment upon the same activity. However, the supreme court’s zealous protection of its right to regulate the practice of law is not absolute in its preclusion of the involvement of other agencies. In Leonard C. Arnold, Ltd. v. Northern Trust Co. (1987), 116 Ill. 2d 157, 506 N.E.2d 1279, the court upheld a circuit court rule which limited contingent fees in minors’ personal injury cases to 25% unless the attorney itemized his work and showed that 25% was not a fair compensation.

The lack of exclusivity of the supreme court’s power in this area is also reflected in the statutes governing attorneys at law. Specifically, section 6 of “An Act to revise the law in relation to attorneys and counselors” (Act) provides:

“[A]nd the justices of the supreme court, in open court, shall have power at their discretion to strike the name of any attorney or counselor at law from the roll for malconduct in his office; and any judge of a Circuit Court shall, for like cause, have power to suspend any attorney or counselor at law from practice in the court over which he presides, during such time as he may deem proper, subject to the right of appeal as in other civil cases.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 13, par. 6.

This statute or its predecessor has been considered by the supreme court in at least two cases. In Winkelman v. People (1869), 50 Ill. 449, the court reversed an order of the trial court which suspended an attorney from practicing in the judicial circuit which encompassed at that time St. Clair County and two other counties. The underlying charge against the lawyer involved an allegation that he had improperly altered a court order. With regard to a circuit court’s power to strike an attorney from the rolls, the court held:

“No power has been given them to strike an attorney from the rolls for any cause; in the supreme court alone is that power reposed. ***
The legislature has conferred this power expressly upon this court. *** And there is a propriety in this, as the appointment of attorneys and counselors is made by that court, and the power of removal, appropriately rests with the power to appoint. In some States, they are appointed by the circuit courts, and, of course, removable by them, for proper cause. We know of no power inherent in the circuit courts, to suspend from practice an attorney duly licensed by this court; at least none, so to suspend him, as, virtually, to strike him from the roll. * * *
It may be, the court would be justified in suspending an attorney from practice, until the term of the supreme court next to be holden, in order that proceedings might be there instituted to strike his name from the roll, but further than that, we are not of opinion the court could go in that direction.” (50 Ill. at 451-52.)

Winkelman suggests that even under the language of the statute set forth above, the power of the circuit court is extremely limited. This restrictive interpretation of section 6 was not as apparent in the later case of Moutray v. People ex rel. Morris (1896), 162 Ill. 194, 44 N.E. 496, which also involved attorneys committing frauds and forgery with regard to court documents. The circuit court barred the Moutrays from practicing in the Second Judicial Circuit, which was comprised of 14 counties. The supreme court reversed and held that the statute did not give that great a power:

“The language of the statute is, any judge of a circuit court shall have power to suspend any attorney or counselor at law from practice in the court over which he presides.” (Emphasis in original.) (Moutray, 162 Ill. at 198-99, 44 N.E. at 498.)

Therefore in Moutray the court at least seems to recognize a trial judge’s authority to suspend an attorney from practicing in the particular court in which he presides although such authority would not extend to the full circuit.

A final case which is not as clearly on point as the preceding two is Wayland v. City of Chicago (1938), 369 Ill. 43, 15 N.E.2d 516. Way-land nullified a rule of the circuit court of Cook County which allowed the executive committee of that county to suspend lawyers from the practice of law. The court referred to its earlier Moutray decision, which allowed a single judge to suspend an attorney from practicing in the particular county in which he was sitting, but the supreme court stated that the power granted to the single judge by section 6 of the Act was not to be extended to an executive committee by any local court rule.

From the foregoing it would appear that, while early cases recognize the power of a circuit judge to suspend an attorney’s right to practice in that county, they also prohibit a circuit judge from entering any order which encompasses an area greater than the particular county. When these cases are viewed in light of more recent cases in which the supreme court has indicated that it has exclusive jurisdiction over the regulation of licensure and the right to practice of attorneys within the State, it becomes clear that the court’s order requiring the defendant to refrain from engaging in the practice of law during the period of his probation in any jurisdiction in the country must be reversed. While the order seems appropriate under the circumstances since the defendant had pled guilty to tampering with public records, it is invalid at a minimum because it prohibits the defendant (in effect it suspends his license to practice) from engaging in the practice of law beyond the confines of Crawford County. It is also somewhat questionable as to whether the supreme court would allow any interference at the present time of its right to regulate the practice of law, but we need not reach that issue in this opinion.

We affirm the trial court’s sentence of 12 months’ additional probation and 10 weekends in jail. We reverse the order of September 15, 1989, insofar as it prohibits defendant from engaging in the practice of law anywhere in the country and remand the cause to the trial court on that issue only for actions consistent with this opinion.

Affirmed in part, reversed in part.

HOWERTON and HARRISON, JJ., concur.


text:
    FIRST ROBINSON SAVINGS AND LOAN, Plaintiff-Appellee, v. LEDO CONSTRUCTION COMPANY, INC., et al., Defendants and Third-Party Plaintiffs-Appellants (John Battershell, d/b/a Battershell and Associates Architects, Inc., Third-Party Defendant-Appellee).
    Fifth District
    No. 5 — 90—0031
    Opinion filed March 25, 1991.
    Massey, Anderson & Gibson, of Paris (Richard L. James, of counsel), for appellants.

      D. Cameron Dobbins, of Dobbins, Fraker, Tennant, Joy & Perlstein, P.C., of Champaign, for appellee John Battershell.
   JUSTICE HOWERTON

delivered the opinion of the court:

The issue in this case is whether defendant, Ledo Construction Company, Inc., properly filed its “counterclaim” against third-party defendant so that it relates b.ack to a previously filed third-party complaint, thereby avoiding the statute of limitations.

We hold that defendant did not properly file its counterclaim, because it was filed ex parte and without leave of court first having been obtained. Therefore, the counterclaim is a nullity and cannot relate back to the previously filed third-party complaint. Accordingly, defendant’s claim against third-party defendant is barred by the statute of limitations. Because we find that defendant improperly filed its pleadings, we do not reach the related question of whether a counterclaim can relate back to a third-party complaint.

Plaintiff, First Robinson Savings & Loan, in a suit for declaratory judgment, asked the circuit court to declare that its construction contract with defendant, Ledo Construction Company, Inc., was not subject to arbitration. Defendant answered and counterclaimed against plaintiff.

Nearly two years later, defendant sought leave of court to add John Battershell, the architect, as a third-party defendant in the declaratory judgment action. The circuit court granted defendant’s motion to file a third-party complaint against Battershell. Defendant filed the third-party complaint April 22; 1988, against Battershell, and Battershell moved for dismissal. On August 29, 1988, the circuit court granted Battershell’s motion to dismiss, writing on the court minutes, “Counsel for third-party plaintiff to file ‘amended third-party complaint’ within ten days.” The defendant failed to file this amended complaint within that period.

Six months later, on February 22, 1989, the circuit court, in an ex parte order, granted defendant “leave to file a Tate amended third-party complaint' due to the same having been filed previously in 85— L — 34, subject to right to object.” (Case No. 85 — L—34 was another case between First Robinson Savings & Loan and Ledo Construction Co., Inc. In 85 — L—34, defendant filed a counterclaim against John Battershell, again without leave of court.) Thereafter, in the case at bar, the circuit court corrected its docket entry of February 22, set out above, by changing the words “Third-Party Complaint” to “Third Amended Counterclaim,” giving counsel 10 days to file.

Over one month later, on March 28, 1989, defendant filed his counterclaim, which was substantially the same as his original third-party complaint. In the meantime the statute of limitations expired.

Battershell moved to dismiss the counterclaim. The circuit court held that the counterclaim was unrelated to the original complaint, which sought a declaration of whether the contract was subject to arbitration; therefore, the counterclaim did not arise out of the same transaction as originally pleaded between plaintiff and defendant. (See Ill. Rev. Stat. 1989, ch. 110, par. 2 — 608; Zeh v. Wheeler (1986), 111 Ill. 2d 266, 489 N.E.2d 1342.) We need not consider this issue, because we affirm as to other issues the court considered, which are dis-positive of this appeal, namely: (1) whether defendant properly filed the March 28, 1989, counterclaim within the statute of limitations; and (2) whether the March 28, 1989, counterclaim related back to the third-party claim filed on April 22, 1988. These issues are dispositive, because if we find, as we do, that the amended pleading is a nullity, we have no occasion to determine whether the counterclaim arose out of the same transaction originally pleaded under the standards announced in Zeh. The circuit court ruled that the ex parte order of February 22, 1989, which allowed defendant to file a counterclaim, was void, and the counterclaim, therefore, was a nullity. In consequence, the counterclaim could not relate back. Defendant appeals from this order.

At the outset, we note that the case at bar was one of four pending cases consolidated for purposes of discovery, pretrial motions and trial. The circuit court, however, kept separate docket sheets and case numbers for each pending case.

A court may consolidate actions for its convenience in the absence of prejudice to a substantial right. Where several actions involve a general inquiry into the same event, the actions may be tried together; however, separate docket entries, verdicts, and judgments should be maintained, and the consolidation should be limited to a joint trial. (Vitale v. Dorgan (1975), 25 Ill. App. 3d 941, 323 N.E.2d 616.) Here, the cases were consolidated for trial only for convenience and economy, and the consolidation did not merge the causes into a single suit, which would have changed the rights of the parties and made those who were parties in one suit parties in another. (Shannon v. Stookey (1978), 59 Ill. App. 3d 573, 375 N.E.2d 881, citing Johnson v. Manhattan Ry. Co. (1933), 289 U.S. 479, 77 L. Ed. 1331, 53 S. Ct. 721.) Thus, filing of defendant’s counterclaim in No. 85 — L—34 does not affect the rights of the parties in this case, because this “consolidation” was for convenience rather than a formal act of consolidation which would merge the cases into a single suit.

We now consider whether defendant properly filed its counterclaim.

A party does not have the absolute right to amend pleadings. (Montgomery Ward & Co. v. Wetzel (1981), 98 Ill. App. 3d 243, 423 N.E.2d 1170.) Since there is no absolute right to amend, a party first must seek and obtain from the court permission to file a proposed amendment. (Blazina v. Blazina (1976), 42 Ill. App. 3d 159, 356 N.E.2d 164.) A party is not permitted to amend and add a new claim against a new party without first obtaining leave of court. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 406(b).) An amended pleading that adds additional parties filed without leave of court is a nullity. (Petrella v. Leisky (1981), 92 Ill. App. 3d 880, 417 N.E.2d 134; Allen v. Archer Daniels Midland Co. (1985), 129 Ill. App. 3d 783, 473 N.E.2d 137.) Therefore, only an amended pleading that has been filed after leave of court first having been obtained will allow the pleading to “relate back” to the time of the original complaint. III. Rev. Stat. 1989, ch. 110, par. 2 — 616(b); Petrella v. Leisky (1981), 92 Ill. App. 3d 880, 417 N.E.2d 134.

Similarly, application for leave to amend cannot be made ex parte. Instead, a motion for leave to amend a pleading must be in writing, state the reason for the amendment, set forth the amendment that is being proposed, show the materiality and propriety of the proposed amendment, explain why the proposed additional matter was omitted from earlier pleadings, and be supported by an affidavit. (Nelson v. Randolph (1906), 222 Ill. 531, 78 N.E. 914; Old Salem Chautauqua Association v. Illinois District Council of the Assembly of God (1958), 13 Ill. 2d 258, 148 N.E .2d 777; Chestnut v. Adeli (1985), 131 Ill. App. 3d 24, 475 N.E.2d 260; Deasey v. City of Chicago (1952), 412 Ill. 151, 105 N.E.2d 727; Volvo of America Corp. v. Gibson (1980), 83 Ill. App. 3d 487, 404 N.E.2d 406.) Furthermore, the opponent must be given notice and an opportunity to present any objections to the application. (Joyce v. Blankenship (1948), 399 Ill. 136, 77 N.E.2d 325.) This requirement of notice extends to all amendments, even those that seek simply to add to or otherwise increase the demands contained in the original complaint. Ryan v. Miller (1978), 58 Ill. App. 3d 283, 374 N.E.2d 257.

In the case at bar, the ex parte order of February 22, 1989, granting defendant leave to file its counterclaim, was entered without notice to the opposing party. In addition, the record does not establish that the motion met the other requirements set forth above. The order of February 22, 1989, was void for two reasons: (1) it was obtained ex parte and without notice; and (2) the motion was not in proper form in that it did not conform to the above requirements. (See City of Chicago v. American National Bank & Trust Co. (1988), 171 Ill. App. 3d 680, 525 N.E.2d 915.) Therefore, the counterclaim cannot relate back to defendant’s third-party complaint because this counterclaim is void.

Defendant argues that it did not need permission to file the counterclaim, because the court earlier had given permission. Defendant maintains that the order of August 29, 1988, which dismissed its third-party complaint and ordered it “to file an amended third-party complaint within ten days,” constituted authority to join Battershell as a counterdefendant. Defendant maintains that this is a reasonable interpretation of the docket entry because the parties agreed that, since this was not an indemnity action, a third-party complaint could not be filed, but a counterclaim could.

Defendant’s claim as to the court’s permission must faü. Defendant filed the counterclaim over six months after the expiration of that 10-day period, and more importantly, filed without leave of court first having been obtained. If an amended pleading is not filed within the time granted, a further extension of time must first be obtained. (See Shroat v. Robins (1972), 7 Ill. App. 3d 293, 287 N.E.2d 157.) Permission, therefore, was needed.

Defendant’s actions caused defendant to have no pleading on file against Battershell. The only permission to file defendant received was obtained ex parte and was void, making defendant’s counterclaim a nullity. A nullity tolls no statute; therefore, this purported pleading did not toll this statute of limitations. The statute of limitations expired on March 20, 1989, and, therefore, defendant’s counterclaim filed on March 28,1989, was properly dismissed.

Affirmed.

CHAPMAN and LEWIS, JJ., concur.


author: PRESIDING JUSTICE RARICK JUSTICE CHAPMAN,

text:
    ROY H. WEIHL, Plaintiff-Appellee, v. THEODORE WAGNER et al., Defendants-Appellants.
    Fifth District
    No. 5 — 89—0667
    Opinion filed March 25, 1991.
    CHAPMAN, J., dissenting.
    Crowder & Scoggins, Ltd., of Columbia (Curtis W. Martin, of counsel), for appellants.
    Otto J. Faulbaum, of Strellis, Nester, Faulbaum & Field, of Waterloo, for appellee.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Defendant, Theodore Wagner, appeals from the judgment entered by the circuit court of Monroe County establishing an easement by prescription over his land.

In the spring of 1956, plaintiff, Roy H. Weihl, started farming as a tenant a 40-acre tract of land in Monroe County. In order to get to the land, Weihl used a field road which passed over a parcel of land also consisting of 40 acres directly north of the tract he was farming. This northern parcel of land was owned by the Hedenkamps. Weihl subsequently purchased the 40-acre tract he was farming in 1957 and continued using the field road to get to his acreage. In 1961, Weihl began tenant-farming the Hedenkamp land. Over the years, the Hedenkamp land went through several changes of ownership and one division. Weihl, however, continued farming the majority of the land as a tenant farmer, and at all times, used the same field to access all parcels, including his own. In 1977 the owner of one of the parcels over which the road ran asked Weihl to use a more southerly route in connection with one stretch of the field road. Weihl agreed and accordingly changed his route. In 1985 defendant Wagner purchased the east 17.5 acres of the Hedenkamp land, the parcel through which the field road ran. Wagner found no reference in his deed to any easement over the southerly part of his land corresponding to the field road Weihl used and therefore decided to prohibit Weihl’s further use of the road. Weihl, in turn, brought suit to have an easement by prescription found over Wagner’s land. The trial court ruled in favor of Weihl.

Wagner argues on appeal the character of Weihl’s use of the field road did not establish any prescriptive rights. Furthermore, and even if such rights once existed, they were abandoned in 1977 when the location of the road was changed. We disagree.

In Illinois, in order to acquire an easement by prescription, the party claiming such a right must show that the use of the land was adverse, exclusive, continuous and uninterrupted, and under claim of right for a period of at least 20 years. (E.g.., Deboe v. Flick (1988), 172 Ill. App. 3d 673, 675, 526 N.E.2d 913, 915; Light v. Steward (1984), 128 Ill. App. 3d 587, 593-94, 470 N.E.2d 1180, 1186; Castle v. Yenerich (1981), 95 Ill. App. 3d 39, 43, 419 N.E.2d 677, 680.) Having met the other criteria, the primary contention here is whether Weihl sufficiently established that his use of the field road was adverse in nature. To meet the requirement of adversity, a claimant must show the use of the property was with the knowledge and acquiescence of the owner but without his permission. (Light, 128 Ill. App. 3d at 591, 470 N.E.2d at 1184; Ruck v. Midwest Hunting & Fishing Club (1968), 104 Ill. App. 2d 185, 190, 243 N.E.2d 834, 836-37.) Mere permission to use the land can never ripen into a prescriptive right, regardless of the length of time such permissive use is enjoyed. (Petersen v. Corrubia (1961), 21 Ill. 2d 525, 531, 173 N.E.2d 499, 502; Deboe, 172 Ill. App. 3d at 675, 526 N.E.2d at 915.) Permission may be established by written or oral license or may be inferred from the surrounding circumstances. (Light, 128 Ill. App. 3d at 591, 470 N.E.2d at 1184.) For instance, the use of vacant and unenclosed land is presumed to be permissive (see Poulos v. F.H. Hill Co. (1948), 401 Ill. 204, 214, 81 N.E.2d 854, 859; Light, 128 III. App. 3d at 596, 470 N.E.2d at 1188), as is true when there is evidence of a neighborly relationship between the parties (see Burrows v. Dintlemann (1976), 41 Ill. App. 3d 83, 85, 353 N.E.2d 708, 710). There is, however, a rebuttable presumption of a grant or adverse right where the use of the land or way occurred normally, or in other words, has been used openly, uninterruptedly, continuously and exclusively for more than 20 years, and the origin of such way is not shown. (Petersen, 21 Ill. 2d at 531, 173 N.E.2d at 502; Roller v. Logan Landfill, Inc. (1974), 16 Ill. App. 3d 1046, 1052, 307 N.E.2d 424, 429.) Whether the use was adverse or permissive ultimately is a question of fact for the trial court which will not be disturbed on appeal unless manifestly against the weight of the evidence. (Light, 128 Ill. App. 3d at 594-95, 470 N.E.2d at 1186; see also Roller, 16 Ill. App. 3d at 1053-54, 307 N.E.2d at 430.) We see no reason to disturb the finding of adversity in this instance. Weihl began using the field road in 1956. He testified he did not ask anyone’s permission to use the road. He knew the road was there and believed he had the right to use it to get to the 40 acres he was farming. His use of the road was open and continuous for over a period of 20 years. Clearly the land was not vacant and unenclosed, having both a barn and house on the premises in close proximity to the road. (See Poulos, 401 Ill. at 215, 81 N.E.2d at 859; Light, 128 Ill. App. 3d at 596, 470 N.E.2d at 1188.) It is true Weihl was a tenant for the majority of the prescriptive period over the land through which the field road ran. While as a tenant Weihl had permission to use the field road to access the rented acreage, we cannot say he necessarily had permission to use the road to access other lands. His use of the field road to reach his own land went beyond the rights of his tenancy and therefore continued to be adverse in nature. We too conclude Weihl met his burden of establishing a prescriptive easement over the field road on Wagner’s land.

Wagner argues, however, Weihl abandoned any prescriptive rights when he agreed to a change in the location of the road in 1977. Again, we disagree. By 1977, Weihl had already met the statutory prescriptive period of 20 years. Once the easement existed, it did not matter it was shifted to another location by mutual agreement. Such a request to change the location in fact serves to highlight the landowner’s recognition of Weihl’s rights. While our research has not brought to light any case in Illinois with a similar fact pattern directly supporting this conclusion, we note several other jurisdictions have encountered such circumstances and consistently have ruled in favor of nonabandonment. (See, e.g., Moravek v. Ocsody (Mo. App. 1970), 456 S.W.2d 619, 626; see also Annot., 80 A.L.R.2d 1095 (1961); Annot., 80 A.L.R.2d 743 (1961); LeClerq v. Zaia (1975), 28 Ill. App. 3d 738, 742, 328 N.E.2d 910, 913.) We therefore find the trial court’s judgment is supported by the evidence.

We do choose, however, to remand this cause for further definition of the prescriptive easement granted in this instance. We agree the order entered by the trial court describing the easement is somewhat vague and uncertain as to specific location. Contrary to Wagner’s contentions, however, we see no error in the court’s “increasing” the width of the easement over the southern portion of the road to 18 feet as compared to that of the I6V2 feet of the northern portion of the road created by express easement. It is true the extent of prescriptive use defines the easement. (See In re Onarga, Douglas & Danforth Drainage District (1989), 179 Ill. App. 3d 493, 495, 534 N.E.2d 226, 228.) What Wagner fails to realize is that Weihl’s use of the road requires the “additional” width. While Weihl’s farm equipment only extends I5V2 feet in width, Weihl testified that because of overhangs, fence posts and vegetative growth along a portion of the southerly road, his usage exceeds the northern width of I6V2 feet in this area. If Weihl is and has been using a wider section on the southerly portion, then such use accordingly justifies the wider easement over that portion as the extent of the prescriptive easement. The difficulty lies in the trial court’s not adequately defining where this wider section is located. For this reason, we agree with Wagner the judgment must be remanded for further clarification as to the location of the prescriptive easement granted in this instance.

For the aforementioned reasons, we affirm the judgment of the circuit court of Monroe County as to the granting of the prescriptive easement but remand for further clarification of the location of such easement.

Affirmed in part; remanded in part.

GOLDENHERSH, J., concurs.

JUSTICE CHAPMAN,

dissenting:

The majority holds that the fact that Weihl was a tenant of the 40 acres upon which the road ran has no effect upon the permissive use of said road. I cannot agree with that conclusion. Since Weihl had the right to use the full 40 acres, he obviously had the right to use that portion of the land which comprised the road. His permissive use of the road under the tenancy for a period from 1961 through at least 1977 precludes Weihl from establishing the adverse use of the road for the requisite period of time. Therefore, the trial court erred when it found that a prescriptive easement had been created, and I would reverse.


author: PRESIDING JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY LEE KEELE, Defendant-Appellant.
    Fifth District
    No. 5 — 89—0304
    Opinion filed March 25, 1991.

      Timothy P. Nance, of Tinley Park, for appellant.
    Kathleen M. Ailing, State’s Attorney, of Mt. Vernon (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Defendant, Terry Lee Keele, pleaded guilty to aggravated battery and was sentenced by the circuit court of Jefferson County to an extended term of 10 years’ imprisonment. He subsequently filed a motion to withdraw his plea of guilty pursuant to Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)). The motion was denied after a hearing at which no evidence was presented. Defendant appeals from the denial, contending that the trial court did not substantially comply with Supreme Court Rule 402 (134 Ill. 2d R. 402) prior to accepting his guilty plea, that his counsel misled him to believe he would be sentenced to two years’ imprisonment, and that the appropriate factors were not present for imposition of an extended-term sentence. We reverse and remand for further proceedings.

Defendant was initially charged with aggravated battery and attempted murder. On January 9, 1989, pursuant to negotiations, defendant pleaded guilty to aggravated battery with the understanding that probation would not be a sentencing alternative and that he could receive a sentence between 2 and 10 years’ imprisonment. Prior to accepting the guilty plea, the court asked defendant if he understood the charge and if he was pleading guilty voluntarily. Defendant answered in the affirmative. The court further asked if defendant understood he had the right to have a jury or bench trial at which defense counsel could cross-examine witnesses and he could testify or not testify and call witnesses in his defense. Defendant again answered in the affirmative. To complete the hearing, the State’s Attorney stated the factual basis for defendant’s plea. According to the State’s Attorney, defendant and a minor intentionally caused great bodily harm and permanent disfigurement to Jeffrey Miller by kicking and beating him about the head and body which resulted in many fractures and lacerations to the head and face area and in a subdural hematoma. Defense counsel agreed the factual basis recited by the State’s Attorney was substantially correct. The court accepted defendant’s plea and set a date for a sentencing hearing.

At the sentencing hearing, a presentence report revealed that defendant, currently age 19, committed misdemeanor criminal damage to property as a juvenile in 1985. He was given two years’ probation, but before completing his term, he committed misdemeanor theft and reckless driving. Defendant subsequently was committed to the Illinois Department of Corrections, Juvenile Division. The report further stated that as a juvenile, defendant was also found to have committed reckless conduct and theft of lost or mislaid property.

Additional evidence at the sentencing hearing revealed that Miller suffered fractures of both inferior orbital rims, a depression of the orbital floor on the right, and fractures of both the lateral and medial walls of the maxillary antrum, and fracture of the left zygomatic arch. Some teeth were also loosened. The medical report concluded Miller suffered great bodily harm, probably resulting in permanent disability and disfigurement, although the extent of this disfigurement could not be fully assessed at the time of the report. While the minor testified both he and defendant had participated in the beating of Miller, with some of the injuries being inflicted after Miller lost consciousness, defendant claimed the minor acted alone. It was also noted at the hearing that Miller’s vehicle had been destroyed.

In sentencing defendant, the court commented:

“And I do believe that you did some beating and the man was unconscious in the back seat of the automobile and at the park. And my personal opinion is, and I think the evidence showed definitely, that you are guilty of exceptional brutal or heinous behavior indicative of wanton cruelty. There’s no question about it. That man suffered severe, severe, injuries. In fact, he almost lost his life. A metal plate above his right eye. That’s pretty serious injuries.
You have a prior criminal record and you did cause very, very serious harm to this fellow for practically no reason at all, really.”

The court concluded by sentencing defendant to 10 years in the Department of Corrections.

Defendant in response filed a motion to reduce sentence and a motion to withdraw his plea of guilty. The motion to withdraw his plea stated: “His plea was involuntary. Supreme Court Rule 402 was not complied with. The State did not prove that he was eligible for an extended term. The sentence was excessive.” At the hearing on these motions, defense counsel advised the court:

“The two motions filed by Terry Keele were actually prepared by *** his former trial lawyer, and it was done so merely as a vehicle to get the complete record before the Appellate Court. Now, when the motions were filed, they — the likelihood was very great that both motions would be denied at a hearing, and, therefore, we do not propose to present argument or testimony on behalf of either motion, and we request that the Court deny both motions. Also, pursuant to the provisions of Rule 606D [sic], I herewith file my certificate that I have conferred with the defendant to ascertain his contentions of error. It is also my understanding that the State’s Attorney’s Office will not resist the entry of such an Order.”

The State’s Attorney’s office responded in the affirmative. Accordingly, no argument or evidence was presented, and the court denied defendant’s motions.

On appeal, defendant initially contends the trial court failed to substantially comply with Rule 402. The State contends defendant waived this issue by failing to present evidence or argument at the hearing on his motion to withdraw his guilty plea. Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)), pertaining to motions to withdraw guilty pleas, provides in part:

“The motion shall be in writing and shall state the grounds therefor. When the motion is based on facts that do not appear of record it shall be supported by affidavit. The motion shall be presented promptly to the trial judge by whom the defendant was sentenced ***. *** The defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings. The motion shall be heard promptly, and if allowed, the trial court shall vacate the judgment and permit the defendant to withdraw his plea of guilty and plead anew. If the motion is denied, a notice of appeal from the judgment and sentence shall be filed within the time allowed in Rule 606, measured from the date of entry of the order denying the motion. Upon appeal any issue not raised by the defendant in the motion to withdraw the plea of guilty and vacate the judgment shall be deemed waived.”

Our understanding is that Rule 604(d) contemplates more than the mere pro forma filing of a motion as occurred here. Rule 604(d) was designed to eliminate needless trips to the appellate court and to give the trial court an opportunity to consider alleged errors and to make a record for the appellate court to consider on review in these cases where defendants’ claims are disallowed. (People v. Wilk (1988), 124 Ill. 2d 93, 106, 529 N.E.2d 218, 223.) The rule ensures that before a criminal appeal can be taken from a guilty plea, the trial judge who accepted the plea and imposed sentence be given the opportunity, at a time when witnesses are still available and memories are fresh, to hear the allegations of improprieties that took place outside the official proceedings and dehors the record but nevertheless were unwittingly given sanction in the courtroom. (124 Ill. 2d at 104, 529 N.E.2d at 221-22.) Such a hearing allows for the trial court to immediately correct any improper conduct or any errors which may have produced a guilty plea. (Wilk, 124 Ill. 2d at 104, 529 N.E.2d at 222; In re A.W. (1989), 185 Ill. App. 3d 473, 475, 541 N.E.2d 789, 790.) Naturally, the trial court is the place for fact-finding to occur and for a record to be made concerning the factual basis upon which a defendant relies for the grounds to withdraw a guilty plea. (Wilk, 124 Ill. 2d at 104, 529 N.E.2d at 222.) For these reasons, a relaxed standard of compliance with Rule 604(d) can no longer be accepted. (People v. Hayes (1990), 195 Ill. App. 3d 957, 960, 553 N.E.2d 30, 32.) Strict adherence to the rule allows courts of review to ascertain the integrity of the parties’ assertions of fact and law, all of which is essential to the expeditious and accurate determination of appeals. People v. Gonzales (1989), 179 Ill. App. 3d 546, 550, 534 N.E.2d 520, 522.

Here, defendant alleges in his Rule 604(d) motion that his guilty plea was involuntary. No specifics of why the plea was involuntary are given other than the general statement that the court failed to comply with Rule 402. Because our reading of the transcript of the negotiated plea hearing discerns a less-than-model acceptance of a guilty plea under the standards of Rule 402, we believe factual issues still exist as to whether defendant knew of his rights and knowingly and voluntarily waived them. The appellate court is not the appropriate forum to solve such issues; rather, the trial court is. Again, we reiterate Rule 604(d) does not contemplate the perfunctory type of motion and hearing that occurred in this instance. Therefore, we choose to remand this cause to the circuit court to allow defendant to. file a proper motion to withdraw his guilty plea in order that a hearing on his motion as contemplated by Rule 604(d) can be conducted.

Reversed and remanded with directions.

LEWIS and CHAPMAN, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
      In re ESTATE OF LENA TUNNELL, Deceased, d/b/a Uniform Center and Deluxe Cafe (The Department of Employment Security, Petitioner-Appellant, v. Estate of Lena Tunnell, Respondent-Appellee).
    Fifth District
    No. 5 — 89—0562
    Opinion filed March 25, 1991.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Linda J. Hay, Assistant Attorney General, of Chicago, of counsel), for appellant.
    William C. Evers III, of Collinsville, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Petitioner, Department of Employment Security, appeals from a judgment of the circuit court of Madison County (probate division) denying its claim against respondent, estate of Lena Tunnell, for unpaid unemployment contributions. In this cause, petitioner asserts that the circuit court erred in refusing to admit its documentary exhibits into evidence. We reverse and remand.

Petitioner issued seven determinations and assessments (D & A’s) against decedent, Lena Tunnell, before her death, for unpaid unemployment contributions. These D & A’s and demand for payment were sent to decedent by registered mail, return receipt requested. Each D & A stated in bold-face capital letters, “IF YOU DO NOT AGREE WITH THIS DETERMINATION AND ASSESSMENT, A WRITTEN PROTEST AND PETITION FOR A HEARING MUST BE FILED BY YOU WITHIN TWENTY (20) DAYS FROM THE DATE OF THIS NOTICE, OR THE DIRECTOR’S DETERMINATION AND ASSESSMENT WILL BECOME FINAL.”

In support of the claim against the estate, the Commissioner of Unemployment Compensation issued two certificates attesting that all documents, including attached copies of the D & A’s, were true and correct copies of petitioner’s records. At a hearing on June 21, 1989, petitioner attempted to admit the certificates and D & A’s into evidence. The circuit court refused to admit the exhibits, citing the Dead Man’s Act (Ill. Rev. Stat. 1989, ch. 110, par. 8 — 201). Petitioner offered no other evidence or testimony, and rested its case. The circuit court then denied petitioner’s claim for lack of evidence.

Petitioner asserts that the circuit court erred in denying its claim because it was based on final D & A’s issued in compliance with the Unemployment Insurance Act (Ill. Rev. Stat. 1989, ch. 48, par. 300 et seq.) which are admissible in probate proceedings. Petitioner specifically argues that any documents certified by the Commissioner of Unemployment Compensation to be true and correct are admissible in the same manner as public documents. (Ill. Rev. Stat. 1989, ch. 48, par. 702.) In the Dead Man’s Act, there is a statutory exception which admits any testimony competent under section 8 — 401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 8 — 401), which admits public documents. Petitioner argues that the certificates of the Commissioner and their attachments are admissible under this exception. Respondent replies that the probate court properly excluded the exhibits which were offered without foundation evidence.

The Dead Man’s Act provides:

“In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, except in the following instances: * * *
(c) Any testimony competent under Section 8 — 401 of this Act, is not barred by this Section.” (Ill. Rev. Stat. 1989, ch. 110, par. 8 — 201(c).)

Section 8 — 401 states that where a claim is based on a book account or other record or document, properly certified copies are admissible as original evidence. Copies of public records, papers or documents may be admitted in such a manner as well. (Ill. Rev. Stat. 1989, ch. 110, par. 8 — 401.) The certificates here were attested to by the Commissioner and under seal of petitioner pursuant to sections 2302 and 2306 of the Unemployment Insurance Act. (Ill. Rev. Stat. 1989, ch. 48, pars. 702, 706.) It is our opinion that the exhibits were admissible under the exception to the Dead Man’s Act.

The Dead Man’s Act protects the deceased from a particular type of hearsay. Public records and documents have long been held admissible as exceptions to the hearsay rule. As the court stated in Department of Conservation v. First National Bank (1976), 36 Ill. App. 3d 495, 344 N.E.2d 11:

“Generally stated, the rule is that all records and reports prepared by public officials pursuant to a duty imposed by law, or required by the nature of their offices, are admissible as proof of the facts stated therein, so far as they are relevant and material to the particular inquiry, under an exception to the hearsay rule, even though they are not verified or authenticated by the person who made the entries. This exception to the hearsay rule rests in part upon the presumption that a public officer charged with a particular duty has performed it properly, and upon the fact that public officers usually have no motive to suppress or distort the truth or to manufacture evidence.” (36 Ill. App. 3d at 504, 344 N.E.2d at 18.)

In Connor v. Shaw (1985), 138 Ill. App. 3d 429, 485 N.E.2d 1184, this court held that the admissibility of a department’s certification with attachments is governed by section 3 — 401 as well as another more specific statutory exception. (138 Ill. App. 3d at 432-33, 485 N.E.2d at 1187.) It logically follows that as petitioner’s certification with attachments is admissible under section 8 — 401, it is also admissible under the Dead Man’s Act.

The certification being admissible, petitioner had made a prima facie showing of its claim in the amounts shown in the D & A’s (see Connor v. Shaw (1985), 138 Ill. App. 3d 429, 485 N.E.2d 1184; Department of Public Aid v. Estate of Wall (1980), 81 Ill. App. 3d 394, 401 N.E.2d 639), and the circuit court on remand should give the certification its appropriate probative value. (See Department of Public Aid v. Estate of Wall, 81 Ill. App. 3d 394, 401 N.E.2d 639.) We therefore reverse the circuit court of Madison County and remand for further proceedings. See Connor v. Shaw (1985), 138 Ill. App. 3d 429, 485 N.E.2d 1184; Jackson v. Thatcher (1980), 80 Ill. App. 3d 876, 400 N.E.2d 608.

Reversed and remanded with directions.

RARICK, P.J., and HOWERTON, J., concur.