author: JUSTICE PINCHAM

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NAFEZ TOTAH et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 1—87—2477, 1—87—2817 cons.
    Opinion filed December 15, 1989.
    Rehearing denied January 18, 1990.

      Stillo, Prechter & Ettinger, Ltd., of Oaklawn, for appellants.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and Michele R. McDowell, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PINCHAM

delivered the opinion of the court:

Defendants, Ahmad Shabeah and Nafez Totah, were each convicted of delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 561/2, par. 1401(b)(2)). They were sentenced to respective terms of 8 and 10 years' imprisonment and two years’ mandatory supervised release. Defendants appeal, alleging that the trial court erred in failing to readmonish defendant Totah of his right to trial by a jury; that defendant Shabeah was denied his constitutional right to the effective assistant of counsel; that the State did not prove them guilty of delivery of a controlled substance beyond a reasonable doubt; and that the trial court abused its discretion in sentencing them to excessive terms of imprisonment. We affirm both judgments of conviction.

Defendant Shabeah’s jury trial and defendant Totah’s bench trial were held simultaneously. At the outset of the trials, counsel for defendant Shabeah requested a continuance on the grounds that an earlier scheduled legal interview conflicted with the trial and that his performance at trial could be affected by a painful spasm in his shoulder. The trial court denied counsel’s request but agreed to begin jury selection after he had sought medical attention. Defendant Shabeah’s counsel renewed his request for a continuance, arguing that his ability to perform during the trial could be affected by a medication, Tylenol, he had taken. The trial court again denied counsel’s request but permitted him to request a recess at any time during the trial.

During the trial of defendants Shabeah and Totah, the witnesses testified that the following events occurred.

Officer Robert Slupski, a Chicago police officer, testified on behalf of the State. Officer Slupski testified that on April 24, 1986, and at 7 p.m., he went to the Speak Easy Lounge at West 63rd Street and California Avenue in Chicago, Illinois, to meet a confidential informant. At the lounge, the confidential informant introduced defendant Shabeah to Officer Slupski. Slupski inquired about purchasing an ounce of cocaine, and defendant Shabeah replied that there would be no problem obtaining the quantity requested but that it would cost Slupski $1,800. Slupski complained about the price but was assured that the cocaine was of high purity and could be “cut four times.” Defendant Shabeah then went to a public telephone located five feet from Slupski and called his cocaine suppliers. The proximity of the public telephone to the table at which Officer Slupski sat allowed him to overhear defendant Shabeah’s conversation. Slupski testified that defendant Shabeah spoke to defendant Totah on the telephone because he heard Shabeah mention defendant Totah’s first name, Nafez, and that he also heard defendant Shabeah inform Totah that there was a person interested in purchasing an ounce of cocaine. After defendant Shabeah concluded his telephone conversation, Shabeah and Officer Slupski agreed to conclude the cocaine transaction at Bennigans Restaurant located at 95th and Ridge in Chicago, Illinois. The meeting at Bennigans Restaurant was scheduled for 9 p.m. on the same day.

Officer Slupski exited the Speak Easy Lounge with defendant Shabeah, and waited until Shabeah drove off in a 1979 Cadillac Eldorado. As soon as Shabeah left, Officer Slupski drove off and informed Agents Douvris, Guerra and Hogue about the potential purchase of an ounce of cocaine.

Two hours later, at 9 p.m., Officer Slupski, who was now wearing a hidden electronic warning device, drove and parked directly in front of Bennigans Restaurant. When Slupski got out of his car, he saw defendant Shabeah also exiting a car. They both exchanged greetings and entered Shabeah’s car. Shortly thereafter, defendant Shabeah got out of his car and went into Bennigans to make a telephone call. Shabeah returned to his car five minutes later and informed Slupski that the cocaine suppliers would be arriving shortly.

Defendant Totah and defendant Bishawi, who is not a party to this appeal, arrived in a red Ford Thunderbird and parked alongside defendant Shabeah’s car. Shabeah introduced Officer Slupski to defendants Totah and Bishawi, and Shabeah and Slupski entered Totah’s car. Once inside Totah’s car, Shabeah reminded Totah that Slupski was interested in purchasing cocaine and he could be trusted. While defendant Totah drove them to the rear of Bennigans, Slupski informed Totah that the money for purchasing the cocaine was in his car. Defendant Bishawi questioned why Officer Slupski left the money in his car, and Shabesh responded that the money was in fact in Slupski’s car and they should not worry because “he’s cool.” Totah stopped the car and Bishawi instructed Totah to give Officer Slupski the cocaine. Defendant Totah reached under the front floor mat of the car and pulled out a plastic bag that contained a white powdery substance. Officer Slupski asked for the price of the cocaine and Totah replied that Shabeah had already set the price of the ounce of cocaine. Slupski next inquired about purchasing larger quantities of cocaine in the future, and defendant Bishawi replied that, “once we get to know you better, we can sell you an ounce for $1600 and a kilo of cocaine for $1400 an ounce.” Defendant Totah drove back to the front of Bennigans to get the money from Officer Slupski’s car. Once Officer Slupski exited defendant Totah’s car, he activated the hidden electronic warning device.

Officers from the Chicago Ridge police department arrived immediately and arrested defendants Shabeah, Totah, and Bishawi. Officer Slupski searched Totah’s red Ford Thunderbird and found another plastic bag that contained a white powdery substance. Albert Larsen, a chemist and forensic scientist at the Department of State Police, examined the contents in the two plastic bags and determined that the first bag contained 24.3 grams of cocaine, while the second bag contained three grams of cocaine.

Defendant Shabeah testified on his own behalf and gave a different version of the events that occurred on April 24, 1986. Defendant Shabeah testified that he had known the confidential informant for only five days prior to his arrest and that the informant left a message, requesting that they both meet at the Speak Easy Lounge on April 24, 1986. Defendant Shabeah further testified that once he got to the lounge, the informant introduced him to Officer Slupski. After the telephone conversation, Shabeah testified that he left the lounge and later met Slupski at Bennigans. Shabeah further testified that when defendants Totah and Bishawi arrived at Bennigans, they all entered Totah’s car, and Slupski asked, “[W]here’s the stuff?” to which defendant Totah questioned whether Slupski was a police officer. Shabeah interrupted Totah and told him that Slupski was a nice guy and a friend. Defendant Shabeah testified that as soon as he stepped out of the car, he found himself on the ground with a gun pointed to his head.

Defendant Shabeah denied ever mentioning to Officer Slupski the word “cocaine” or the words “$1,800,” “purity” or that the ounce of cocaine could be “cut four times.” Defendant Shabeah concedes placing the telephone call to defendant Totah, but denies discussing cocaine, suppliers or the price of the cocaine with defendant Totah. Shabeah claims that he did not speak to Totah but placed the call and gave the telephone to the informant, who then spoke to Totah. Shabeah acknowledges going to Bennigans but argues that the informant asked him to go there. Shabeah further denied ever discussing or mentioning narcotics, the price of the narcotics, or the possibility of future drug deals in defendant Totah’s car.

Defendants Ahmad Shabeah and Nafez Totah were each found guilty of delivery of a controlled substance.

On July 29, 1987, a hearing in aggravation and mitigation was held for defendant Totah. The State’s witness, Valdez, a special agent for the Illinois State Police, testified that, approximately one month before the hearing, on June 27, 1986, he was involved in an undercover operation to purchase narcotics. Agent Valdez further testified that during the undercover operation, he purchased 6.4 grams of cocaine from defendant Totah, who was then on bond for the offense in the case at bar. At the conclusion of Valdez’s testimony, the State argued that defendant Totah deserved to be incarcerated for a significant period of time in view of the second offense he had committed while out on bond. Defendant Totah, however, argued that he should receive the minimum sentence because he lacked a criminal background and was not a sophisticated drug dealer, but rather, was honest and had been employed all his life. Following the aggravation and mitigation hearing, defendant Totah was sentenced to 10 years’ imprisonment and two years’ mandatory supervised release.

On August 13, 1987, a hearing in aggravation and mitigation was also held for defendant Shabeah. During the hearing, the State again requested the maximum sentence for defendant Shabeah, arguing that he was an experienced drug dealer who had recently emigrated to the United States and had already been placed on one year’s supervision for theft and found guilty of possession of marijuana. Mrs. Shabeah testified on her husband’s behalf and stated that defendant Shabeah was a good husband and, if incarcerated, she would have no means to support herself and her children. Defendant Shabeah also testified that he would not have received any money for the drug transaction that took place on April 24, 1986, and if placed on probation, he would work to support his family. Following the aggravation and mitigation hearing, defendant Shabeah was sentenced to eight years’ imprisonment and two years’ mandatory supervised release.

Defendant Totah contends before us that the trial court erred in failing to readmonish him of his right to trial by a jury. Defendant Totah argues that after he had twice been admonished of his right to trial by a jury, he should have been admonished for at third time. Defendant Totah further argues that he waived his right to trial by a jury in anticipation of pleading guilty, and when the trial court withdrew his plea of guilty, he should have again been admonished of his right to a trial by a jury. Defendant Totah thus claims that the trial court’s admonition and his subsequent waiver were only effective as to his guilty plea and were invalid and inapplicable after the trial court withdrew the guilty plea and proceeded to try him without a jury. Defendant Totah’s argument is specious and without merit.

The Illinois Code of Criminal Procedure of 1963, section 103— 6, provides that “[ejvery person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court.” (Ill. Rev. Stat. 1985, ch. 38, par. 103—6.) Supreme Court Rule 402(a) provides in pertinent part:

“In hearings on pleas of guilty, there must be substantial compliance with the following:
(a) The court shall not accept a plea of guilty without first, by addressing the defendant in open court, informing him of and determining that he understands the following:
(4) that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him.” 107 Ill. 2d R. 402(a).

The record reveals that defendant Totah, with counsel by his side, signed a jury waiver form and was personally admonished by the trial judge of his right to be tried by a jury. The record also reveals that after the trial judge’s conscientious admonition, defendant Totah replied in the affirmative when asked whether he wanted a bench trial. Shortly thereafter, defendant Totah chose to plead guilty, and he was again admonished of his right to trial by a jury and informed of the consequences of pleading guilty. Defendant Totah replied in the affirmative for the second time that he understood he would be waiving, amongst other rights, his right to trial by a jury.

Based on the foregoing, it is clear that the trial judge in open court admonished defendant Totah of his right to trial by a jury. It is also clear that the trial judge complied with the required enumerated admonitions of Supreme Court Rule 402(a) after defendant Totah pled guilty. Defendant Totah cites no authority to support his contention that the trial court’s admonition, and his subsequent oral and written waiver of a jury trial, applied only to his plea of guilty and was invalid, ineffective and inapplicable to his subsequent bench trial.

Defendant Totah further contends that, even though he waived his right to trial by a jury, his waiver was not knowingly and understandingly made. We disagree.

There is no precise formula for determining whether a jury waiver is understanding^ made; therefore, the waiver question must be resolved by the particular facts and circumstances of each case as revealed by the record as a whole. (People v. Wesley (1964), 30 Ill. 2d 131, 195 N.E.2d 708; People v. Crespo (1983), 118 Ill. App. 3d 815, 455 N.E.2d 854; People v. Lewis (1980), 89 Ill. App. 3d 840, 412 N.E.2d 565.) The Illinois Supreme Court has expressed the view that a trial court should accept a waiver when a defendant personally waives his right either in writing or in open court for the record. People v. Murrell (1975), 60 Ill. 2d 287, 326 N.E.2d 762.

At the outset of the trial the following exchange took place between defendant Totah and the trial court:

“THE COURT: *** Your attorney has just given me a document that’s called a jury waiver. Mr. Totah, your attorney has just given me a document that’s called a jury waiver. I want you both to understand that each one of you has a right to a jury trial. A jury trial takes place when twelve people are selected by the parties as you saw regarding your co-defendant, selected by the parties, they’re sworn in, they hear the evidence and they make the determination of questions of fact including the question of guilty or not guilty.
By signing this jury waiver, that means you want to give up the right to a jury trial. I then hear the evidence. I’ll make the determination of questions of fact including the question of guilty or not guilty. Do you understand that?
DEFENDANT TOTAH: Yes, sir.”

Thus, the foregoing exchange between the trial court and defendant Totah clearly demonstrates that the trial court admonished Totah of his constitutional right to trial by a jury in unambiguous language and explained the consequences of waiving said right. Moreover, defendant Totah had counsel by his side during the trial proceedings, and signed a written jury waiver form in open court and in the presence of the trial judge.

Defendant Totah concedes that he signed the waiver form and was personally admonished by the trial judge but argues that a linguistic handicap impeded his understanding of the trial court’s admonitions of the consequences of a jury waiver. We also disagree.

The following exchange also took place at the outset of trial:

“DEFENDANT TOTAH: You know, when somebody talks to me fast I don’t understand. Is it all right I bring somebody so they can explain something I don’t understand?
THE COURT: Certainly. What is your main language?
DEFENDANT TOTAH: Arabic.
THE COURT: I’m going to have an Arabic interpreter brought up but you do speak English?
DEFENDANT TOTAH: I speak English but sometimes when somebody speak to me fast I don’t understand.
THE COURT: For over a year you’ve been in front of me and I know I’ve spoken to you on many occasions. *** If somebody speaks to you too fast just point it out and stop them. Do you understand everything about the jury waiver?
DEFENDANT TOTAH: Yes.
THE COURT: And you want me to hear the case, not a jury. Is that right?
DEFENDANT TOTAH: Okay, yes.”

Thus, the record reveals that the trial court accommodated defendant Totah’s linguistic handicap. Moreover, when a linguistic handicap is alleged, a reviewing court, which has before it only the written record, “should accord more than ordinary deference to the conclusions of the trial judge, who observed the witness’ demeanor and gestures and heard possibly important variables of inflection and emphasis.” (People v. Ortiz (1981), 96 Ill. App. 3d 497, 503, 421 N.E.2d 556; People v. Niebes (1979), 69 Ill. App. 3d 381, 387 N.E.2d 800.) Defendant Totah was provided with an interpreter and was given the opportunity to stop the trial proceedings if and when he failed to understand what was being said. Defendant Totah offers nothing to show that he failed to comprehend the trial judge’s admonitions. More importantly, we believe that the deferential level of review applies especially to the case at bar. The trial judge saw and evaluated defendant Totah’s reaction to the crucial constitutional question and was therefore best able to determine if defendant Totah’s responses were intelligently and knowingly made. To conclude otherwise would be to second-guess the trier of fact, and we are not prepared to do so.

The State contends that defendant Totah waived the issue of the alleged denial of his constitutional right to trial by a jury when he failed to preserve it for review by objecting at trial and in his post-trial motion. Although the State’s position may be well founded and valid, we choose to decide the issue on the merits as aforestated; there was no violation or denial of defendant Totah’s constitutional right to trial by a jury.

Next, defendant Shabeah contends that he was denied his constitutional right to the effective assistance of counsel and argues that his counsel was physically and mentally unprepared; that his counsel failed to make a motion to exclude witnesses at the beginning of trial; that his counsel did not make a motion for a new trial; and that his counsel may have been the subject of disciplinary proceedings at the time of trial. We are of the opinion that defendant Shabeah failed to demonstrate that his counsel’s performance and assistance were ineffective or incompetent.

To succeed on a sixth amendment claim of ineffective assistance of counsel defendant Shabeah must show that his counsel’s performance “fell below an objective standard of reasonableness.” (Strickland v. Washington (1984), 466 U.S. 668, 688, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) Counsel’s performance will not, however, be found to constitute ineffective assistance under the Constitution unless it is shown to be prejudicial to the defense. (466 U.S. at 692, 80 L. Ed. 2d at 696, 104 S. Ct. at 2067.) To demonstrate the prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

Moreover, Strickland recognized that courts “need not decide the performance component of an ineffectiveness claim before analyzing the prejudice component, since an insufficient showing on either will defeat the constitutional claim.” (People v. Enoch (1988), 122 Ill. 2d 176, 201, 522 N.E.2d 1124, 1137; People v. Gaines (1984), 105 Ill. 2d 79, 92-93, 473 N.E.2d 868, 876.) Therefore, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, *** that course should be followed.” Strickland v. Washington (1984), 466 U.S. 668, 697, 80 L. Ed. 2d 674, 699, 104 S. Ct. 2052, 2069.

In the case at bar, defendant Shabeah has not established that his counsel’s alleged deficiencies prejudiced his defense. We believe that there is no “reasonable probability” that had defendant Shabeah’s counsel been more proficient in the areas in which Shabeah now suggests his counsel should have been proficient, the proceedings would have been different.

The evidence established that defendant Shabeah in complicity with defendant Totah delivered a controlled substance. The evidence of Shabeah’s guilt was convincing and overwhelming. By reason thereof and based on the testimony of Officer Slupski and the surveilling agents, the forensic scientist and the evidence as a whole, we are firmly convinced that defendant Shabeah’s counsel advocated Shabeah’s case as he was required to do by the sixth amendment to the United States Constitution. Therefore, defendant Shabeah’s contention to the contrary does not merit further discussion.

Defendants Totah and Shabeah both contend that the State failed to prove them guilty of delivery of a controlled substance beyond a reasonable doubt.

It is well established in Illinois that a criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267; People v. Saldana (1986), 146 Ill. App. 3d 328, 496 N.E.2d 757.) Moreover, when a reviewing court is presented with a challenge to the sufficiency of the evidence, it is not its function to retry the defendant. The relevant inquiry when the sufficiency of the evidence is at issue on review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.

In applying the guidelines set forth in Collins, we are of the opinion that defendant Totah delivered a controlled substance in complicity with defendant Shabeah. The evidence of defendant Totah’s guilt was not only probable and satisfactory, it was overwhelming. By reason thereof and based on the convincing testimony of Officer Slupski, who witnessed the drug transaction and observed defendant Totah’s participation in delivering and consummating the drug transaction, and the stipulated testimony by the forensic scientist that the powdery substance seized in defendant Totah’s car was in fact cocaine, we are unalterably convinced that defendant Totah was proved guilty beyond a reasonable doubt of the crime for which he was charged.

Defendant Shabeah also contends that the State failed to prove him guilty of delivery of a controlled substance beyond a reasonable doubt. Defendant Shabeah argues that the State’s evidence was insufficient to support his conviction based on the accountability theory.

Under the theory of accountability, the State has the burden of proving that the defendant solicited, aided, abetted, agreed, or attempted to aid another person in the planning or commission of the offense; that the participation by the defendant took place either before or during the commission of the offense; and that it must have been with the concurrent, specific intent to facilitate or promote the commission of the offense. People v. Saldana (1986), 146 Ill. App. 3d 328, 496 N.E.2d 757; People v. Zambetta (1985), 132 Ill. App. 3d 740, 477 N.E.2d 821; People v. Schlig (1983), 120 Ill. App. 3d 561, 458 N.E.2d 544.

In applying the foregoing principles to the case at bar, we believe that Shabeah was proved guilty beyond a reasonable doubt for the crime for which he was charged. The record reveals that defendant Shabeah aided defendant Totah in planning and committing the offense, that Shabeah’s participation occurred both before and during the delivery of the cocaine to Officer Slupski, and that Shabeah acted with specific intent to facilitate the commission of the offense. We conclude that there was sufficient evidence to support the jury’s verdict.

Defendants Shabeah and Totah finally contend that the trial court abused its discretion in sentencing them to excessive terms of imprisonment. We disagree. Delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 561/2, par. 1401(b)(2)) is a Class 1 felony with a sentence of not less than 4 years’ and not more than 15 years’ imprisonment. Defendants Shabeah’s and Totah’s sentences of 8 and 10 years, respectively, are well within the statutorily imposed sentencing guidelines. When the trial court imposes a sentence which is within the statutory limits, it will not be altered on appeal absent an abuse of discretion by the trial court. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The trial court is the proper forum and is in a much better position to determine the punishment to be imposed because the factors used to arrive at a proper sentence are unavailable to the reviewing court. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Furthermore, the Illinois Constitution states that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, §11.) We find no basis to conclude that the trial court abused its discretion in sentencing defendants Shabeah and Totah. Accordingly, the defendants’ judgments of conviction are affirmed.

Affirmed.

MURRAY, P.J., and COCCIA, J., concur.

       Justice Pincham participated in the decision prior to his retirement.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    LORI JEAN DAY, Plaintiff-Appellant, v. JOHN CURTIN, Defendant-Appellee.
    First District (5th Division)
    No. 1—88—1596
    Opinion filed December 15, 1989.

      Michael W. Rathsack, of Chicago (Louis S. Goldstein and Cindy G. Flux-gold, of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Helaine Wachs Heydemann and Jo Anne Smith Johnston, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Lori Jean Day, appeals from an order denying her motion to vacate the dismissal of her complaint. We address the issue of whether the trial judge abused her discretion. For the following reasons, we affirm.

Plaintiff filed a three-count complaint for medical malpractice against defendant, John Curtin, M.D., and two other defendants. The counts against the two other defendants were dismissed on December 30, 1985, and March 5, 1986. The remaining count of the complaint was directed against defendant. Plaintiff alleged that defendant treated her on a continuing basis through January of 1984.

Defendant filed a motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—619) arguing that plaintiff’s cause of action was time barred under section 13 — 212(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13—212(a)), which provides that a lawsuit against a physician cannot be brought more than four years after the alleged negligent treatment. In support of the motion, defendant submitted his affidavit stating that the last time he “saw, treated or was in any way consulted with respect to the care or treatment of plaintiff *** was April 2, 1980.” Defendant also filed the affidavit of Sandy Dunworth, who was clinic coordinator for the medical center that plaintiff visited. She searched the records of the clinic and found there was no indication that defendant saw plaintiff after April 2, 1980. Also, Dunworth had no personal recollection of plaintiff visiting the clinic after that date. Because plaintiff’s complaint was filed on August 14, 1985, more than five years after the last date of treatment, defendant argued it should be dismissed with prejudice.

Plaintiff did not file a response to the motion to dismiss and did not file any opposing affidavits. Although plaintiff’s attorney had notice of the motion, he did not appear at the hearing on July 10, 1986. Defendant’s counsel stated on the record that plaintiff’s counsel was present in the courtroom earlier that day and told him that “ T still haven’t been able to find anything to indicate that there was any treatment after the date that [plaintiff] has sworn in her affidavit is the last date that [defendant] treated [her].’ ” However, plaintiff did not file an affidavit in opposition to the motion. The trial judge granted defendant’s motion to dismiss the complaint with prejudice.

Within 30 days, on August 7, 1986, plaintiff filed a motion to vacate and attached a copy of plaintiff’s affidavit dated February 15, 1986, which was prior to the date the complaint was dismissed. In her affidavit, plaintiff stated that defendant “rendered treatment” to her and “examined” her on January 18, 1984. Also on that date, defendant referred her to another physician.

Plaintiff’s motion to vacate was scheduled for hearing on November 20, 1986. On that date, the parties agreed to enter and continue the hearing until February 18, 1987. However, the record does not contain an order entered on February 18, 1987. Defendant argues, and plaintiff does not dispute, that plaintiff failed to reschedule the motion for February 18, 1987, and as a result, it did not appear on the motion call for that day. In their briefs, both parties agree that plaintiff refiled her motion to vacate on November 5, 1987, but that motion was not included in the record.

No action occurred on plaintiff’s motion to vacate until it was rescheduled for hearing on April 20, 1988, which was more than one year after the last scheduled hearing date and almost two years.since the dismissal order was entered. After hearing the parties’ arguments, the trial judge noted that plaintiff’s affidavit was available or could have been available on the date defendant’s motion to dismiss was heard. Because plaintiff was not reasonably diligent in presenting the affidavit, the court found there was no reason to vacate the dismissal. Plaintiff’s motion to vacate was denied. Within 30 days, plaintiff filed an emergency motion to reconsider the denial of plaintiff’s motion to vacate. The motion was heard on May 20, 1988, and denied. Plaintiff filed a notice of appeal the same day.

Opinion

Motions to vacate judgments which are filed within 30 days are governed by section 2 — 1301(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—1301(e)). Section 2—1301(e) provides:

“The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” (Ill. Rev. Stat. 1985, ch. 110, par. 2—1301(e).)

The moving party has the burden of establishing sufficient grounds to vacate a judgment. (Espedido v. St. Joseph Hospital (1988), 172 Ill. App. 3d 460, 526 N.E.2d 664.) The trial court’s decision to grant or deny a motion to vacate is discretionary and will not be reversed on appeal unless that discretion has been abused. (Espedido, 172 Ill. App. 3d 460, 526 N.E.2d 664; Zanzig v. H.P.M. Corp. (1985), 134 Ill. App. 3d 617, 480 N.E.2d 1204; Meneghen v. Calumet Development Corp. (1974), 19 Ill. App. 3d 997, 313 N.E.2d 279; see Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958.) A ruling on a motion to vacate must be reversed if the movant’s right to fundamental justice is violated. Zanzig, 134 Ill. App. 3d 617, 480 N.E.2d 1204; Chandler v. Jet Air Freight, Inc. (1977), 54 Ill. App. 3d 1005, 370 N.E.2d 95.

On appeal, plaintiff argues that the trial court should have granted her motion to vacate because her affidavit would have defeated defendant’s motion to dismiss. Plaintiff does not otherwise challenge the propriety of the dismissal order.

In arguing that her motion to vacate was improperly denied, plaintiff contends the present situation is equivalent to the entry of a default judgment because plaintiff failed to appear at the hearing on defendant’s motion to dismiss. Citing Heller Financial, Inc. v. Christopher La Salle & Co. (1988), 168 Ill. App. 3d 852, 523 N.E.2d 41, plaintiff argu'es that for this court to reverse the trial judge’s denial of her motion to vacate, it is not necessary to find the trial judge abused her discretion. Heller relied on Patrick v. Burgess-Norton Manufacturing Co. (1976), 63 Ill. 2d 524, 349 N.E.2d 52, where the supreme court stated the standard of review for a motion to vacate a default judgment did not require a finding that the trial court abused its discretion.

Despite plaintiff’s argument, the present case is not the equivalent of a default judgment. The record established that rather than dismiss plaintiff’s complaint for failure to appear at the hearing, the trial judge dismissed the complaint after consideration of the merits of defendant’s motion to dismiss. Further, the supreme court in Foutch (99 Ill. 2d 389, 459 N.E.2d 958), which was on review from a motion to vacate a judgment entered after an ex parte hearing, indicated that the standard of review from a motion to vacate a judgment was whether the trial court abused its discretion. The court in Foutch found that because there was no transcript of the hearing in the record, it could not find the trial court abused its discretion.

“A motion to vacate is properly denied when the evidence was in the movant’s possession and could have been presented prior to judgment.” (Kosten v. St. Anne’s Hospital (1985), 132 Ill. App. 3d 1073, 1080, 478 N.E.2d 464, 469.) Although Rosten involved a motion to vacate summary judgment, the principle is equally applicable here. In the present case, plaintiff’s motion to vacate the dismissal relied on plaintiff’s affidavit which was not presented at the hearing on defendant’s motion to dismiss although it was dated several months earlier. When plaintiff’s motion to vacate was eventually heard almost two years after it was filed, the trial judge denied the motion because the affidavit did not constitute new evidence. The affidavit could have been brought to the trial judge’s attention prior to the entry of judgment. Accordingly, the trial judge properly exercised her discretion when she denied plaintiff’s motion to vacate.

Additionally, both parties argue whether or not the delay in scheduling plaintiff’s motion to vacate for almost two years was proper grounds for the trial judge’s denial of the motion. Under Rule 184 of the supreme court rules, either plaintiff or defendant could have scheduled plaintiff’s motion for hearing (107 Ill. 2d R. 184); however, under the local rules of Cook County, the burden of scheduling the motion was on plaintiff as the movant (Cook County Cir. Ct. R. 2.3 (effective July 1, 1976)). Plaintiff’s failure to schedule the motion for hearing within 90 days of filing gave the trial judge the discretion to deny the motion as a result of the delay. (Cook County Cir. Ct. R. 2.3 (effective July 1, 1976); Marshall E. Winokur, Ltd. v. Shane (1980), 89 Ill. App. 3d 551, 411 N.E.2d 1142.) Although the trial judge did not rely on Rule 2.3 in denying plaintiff’s motion to vacate, it is further support for finding that she did not abuse her discretion.

Affirmed.

PINCHAM and COCCIA, JJ., concur.

       Justice Pincham participated in the decision prior to his resignation.


author: PRESIDING JUSTICE MURRAY

text:
    DONALD S. SHIFRIS et al., Plaintiffs-Appellants and Cross-Appellees, v. BEN ROSENTHAL et al., Defendants-Appellees and Cross-Appellants (William F. Harris, Commissioner of the Cook County Department of Building and Zoning, et al., Defendants-Appellees).
    First District (5th Division)
    No. 1—88—3264
    Opinion filed December 15, 1989.

      Kevin G. Barry and Donald S. Shifris, both of Shifris & Barry, Ltd., of Northbrook, for appellants.
    Handel, Lipton & Stevenson, Ltd., of Chicago (R. Peter Carey, Uve R. Jerzy, and Scott V. Peters, of counsel), for appellees Ben Rosenthal and Lorelei Rosenthal.
    Cecil A. Partee, State’s Attorney, of Chicago (Joan S. Cherry, Deputy State’s Attorney, and Donald M. Devlin and William P. Motto, Assistant State’s Attorneys, of counsel), for other appellees.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

This is an appeal and cross-appeal from two orders entered by the trial court in a declaratory judgment action involving the issuance of a building permit to defendants Ben and Lorelei Rosenthal (Rosenthals) for the construction of a building on their property located in a flood plain in the unincorporated area of Cook County at 80 Woodley Road, Winnetka, Illinois. Plaintiffs, Donald Shifris, Don’s A. Shifris and American National Bank and Trust Company of Chicago (Shifris), owners of property near or abutting the Rosenthals’ property, appeal from the trial court’s orders dismissing their complaint on the ground of mootness. Defendants Rosenthals have filed a cross-appeal solely for the purpose of preserving their rights to litigate issues raised in a proposed counterclaim against other party-defendants, which the trial court denied them leave to file, in the event that this court reverses the trial court’s orders dismissing Shifris’ complaint. The remaining defendants are William F. Harris, Commissioner of the Cook County Department of Building and Zoning (County Department), the County of Cook, and Charles Page, the predecessor owner of the Rosenthals’ property at issue here.

The pertinent facts are as follows. On September 23, 1986, Page applied to the County Department for a permit to construct a single-family residence at 80 Woodley Road in Winnetka. The permit to build was required because a portion of Page’s property lies in a flood plain. On November 7, 1986, the County Department issued Page a permit pursuant to a letter received from the Illinois Department of Transportation, Division of Water Resources (IDOT/DOWR), which stated that the property was above the flood plain elevation. (The County Department is mandated by ordinance to apply the base flood elevation as determined by IDOT/DOWR. See Cook County Zoning Ordinance, art. 8, §8.96(1) (1986).)

On November 21, 1986, Shifris filed a complaint for declaratory, injunctive and other relief. He amended the complaint twice and ultimately sought a judicial determination of the base flood elevation for the subject property and a rescission of the permit issued to Page. While further proceedings on Shifris’ complaint were pending, Page sold the involved property to the Rosenthals. In addition, on March 30, 1987, the County Department revoked the previously issued building permit pursuant to a second letter received from IDOT/DOWR, which set forth new estimates of flood elevation higher than the elevation of portions of the Rosenthals’ property; the new estimates were based on information provided by Shifris and his employees.

Subsequently, on February 29, 1988, the trial court entered an order dismissing Shifris’ complaint as to the Rosenthals on the ground of mootness as a result of the revocation of the building permit on the subject property. On April 4, 1988, the Rosenthals sought leave to file a counterclaim against the county defendants. At that time, the trial court entered the motion, granted the other parties leave to file an answer to the motion, and left the hearing on the motion open for a later date. On April 5, 1988, pursuant to a motion by the county defendants, the court dismissed Shifris’ complaint as to them on the ground of mootness. On October 5, 1988, the court denied the Rosenthals’ motion for leave to file a counterclaim against the county defendants, and this appeal and cross-appeal followed.

Shifris argues that the trial court abused its discretion in entering judgment on the pleadings and dismissing his complaint on the ground of mootness because his verified pleadings raise an issue of fact, i.e., the appropriate base flood elevation for the subject property. Alternatively, Shifris contends that if his action is moot, it falls within the “public interest exception” to the mootness doctrine. The county defendants maintain that the trial court properly dismissed Shifris’ action as moot and that it does not fall within the public interest exception to the mootness doctrine. The Rosenthals assert, in addition to their position that the trial court properly dismissed Shifris’ complaint on the ground of mootness, that: (1) this court lacks jurisdiction over Shifris’ appeal because he did not timely file a notice of appeal or the appeal is premature; (2) the trial court’s order of dismissal should be affirmed because Shifris failed to exhaust his administrative remedies; (3) Shifris lacks standing to maintain an action to enjoin issuance of a permit for their property; and (4) if this court determines that the trial court should determine the flood elevation, we should also reverse the trial court’s order denying their motion for leave to file a counterclaim.

For the reasons set forth below, we affirm the judgments of the trial court.

We first briefly address the Rosenthals’ challenge to our jurisdiction over this appeal. They contend that the orders of dismissal on mootness grounds entered on February 29 and April 5, 1988, and all other “counter complaints had been dismissed” as of the latter date and therefore Shifris’ lawsuit “was dead” at that time. Accordingly, they further contend that the time within which to file a notice of appeal began to run from April 5, rather than from October 5, the date on which the trial court denied their motion for leave to file a counterclaim and the date from which Shifris took his appeal. In support thereof they rely in part on the following statements made by the trial court:

“The subject case here in this courtroom which this — in which this defendant [Rosenthal] seeks to file a counterclaim has been dismissed as moot for a great length of time. In fact, counsel’s attempt to file a counterclaim is indeed to breathe life into a number, a chancery filing number, and not to breathe life into a case because there is no case here anymore.”

Additionally, the Rosenthals assert that only if their counterclaim was within the purview of section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203) would Shifris avoid the effect of filing an untimely appeal. They further assert that their motion was not a post-judgment motion and therefore not within the purview of section 2 — 1203.

We agree with the Rosenthals that their motion for leave to file a counterclaim against the county defendants clearly was not a post-judgment motion in light of the fact that the Rosenthals sought leave to file it prior to the court’s' order of April 5 dismissing Shifris’ complaint against the county defendants. Beyond this point, however, we disagree with the Rosenthals’ further contentions on this issue.

It is well settled that to constitute a final, appealable order, the order must terminate the litigation between the parties to the suit and finally determine, fix and dispose of their rights as to the issues made by the suit. (All Brake & Drive Unit Service, Inc. v. Peterson (1979), 69 Ill. App. 3d 594.) Where an order does not adjudicate all the claims, rights and liabilities of the parties, an order is not final and is subject to revision prior to entry of an order adjudicating the entire matter unless the order contains a Supreme Court Rule 304(a) finding that there is no just reason to delay enforcement or appeal of the order. 107 Ill. 2d R. 304(a); Peter Fischer Import Motors, Inc. v. Buckley (1984), 121 Ill. App. 3d 906.

In the instant case, neither the order of February 29, nor April 5 contained the requisite Rule 304(a) language. Moreover, until the hearing on the Rosenthals’ motion for leave to file their counterclaim, the earlier orders of February 29 and April 5 dismissing Shifris’ complaint were therefore subject to revision and/or vacation based on the possibility that there was a 50/50 chance that the court would grant the motion. In fact, in Shifris’ answer to the Rosenthals’ motion, he requested that the trial court reconsider and void its previous orders dismissing his complaint. The fact that the court ultimately denied the motion and specifically made no decision on the merits is irrelevant. What is relevant is the fact that the court entered the motion with the counterclaim attached, which raised claims by the Rosenthals against the county defendants and which was viable at the time it was filed and until a ruling was made on it by the trial court. Accordingly, we hold that the denial of the Rosenthals’ motion on October 5 for leave to file a counterclaim was the final order adjudicating all claims raised by the parties, notwithstanding that the court did not consider the merits of the counterclaim but rather found that the Rosenthals had other remedies through administrative agencies or the Federal court to obtain the relief requested in its counterclaim. We thus hold that Shifris’ notice of appeal was timely filed and that this court has jurisdiction over the matter.

We also hold that the trial court properly found that Shifris' action was moot despite the apparent existence of a factual dispute relating to the flood-base elevation. A moot controversy is one which once existed, but which, because of the happening of certain events, has ceased to exist and no longer presents an actual controversy over the rights and interests of a party. (First National Bank v. Trail Ridge Farm, Inc. (1986), 143 Ill. App. 3d 244.) Courts have a duty to decide actual controversies by rendering judgments which can be carried into effect, rather than rendering opinions upon moot questions and abstract propositions or deciding principles or rules of law which cannot affect the matter at issue in the case before it. La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375.

Here, the controversy over the issuance of a permit to build on the subject property clearly ceased to exist upon the County Department’s revocation of the permit. With respect to Shifris’ additional prayer for a permanent prohibition of ever building on the subject property, this court, like the trial court, simply cannot grant such relief. To do so would be contrary to article 8, section 8.91(9), of the Cook County Zoning Ordinance, which provides:

“This flood plain ordinance is not intended to reduce or eliminate existing flooding, nor is it intended to impose a complete prohibition of construction in base flood areas. On the contrary, these regulations are designed to guide and control development in such a manner as to lessen the damaging effects of floods on developments proposed for the lowlying areas of unincorporated Cook County.” (Emphasis added.) (Cook County Zoning Ordinance, art. 8, §8.91(9) (1986).)

In other words, were we to grant Shifris a permanent injunction prohibiting construction on the subject property, we would be usurping the power of the County Department to issue a permit for construction should the physical nature of the property change or where the law changes. The IDOT/DOWR flood base elevation figure is subject to change based on the acts of man or nature, and a future elevation figure necessarily will affect later requests for construction on the property. Since the zoning ordinance specifically provides for variances from the flood control provisions of the ordinance when certain conditions are met, a permanent injunction prohibiting construction would contravene the express provisions of the ordinance.

We further find that the circumstances of this case do not fall within the public interest exception to the mootness doctrine. In order to prevail under the exception, a party must show (1) that the question is public in nature, (2) that it is desirable to make an authoritative determination of the question for the guidance of public officials, and (3) that the question is likely to recur. Village of Palatine v. La Salle National Bank (1983), 112 Ill. App. 3d 885.

There is no doubt that questions concerning flood plains generally involve a public issue. Yet any authoritative determination as to flood plains, base flood elevation and constructions on property within a flood plain must first be made by the public officials charged with determining such matters, as was done here by the County Department and IDOT/DOWR, and not by the judiciary, especially in a case involving an already revoked permit and where IDOT/DOWR was not even made a party. (See Dunlap Lake Property Owners Association, Inc. v. City of Edwardsville (1959), 22 Ill. App. 2d 95 (the control and abatement of conditions constituting a public nuisance, such as pollution of waters, are best left to the specialized agencies concerned with such issues except in cases of obvious and flagrant abuse).) Moreover, under the circumstances here, Shifris’ interest as an adjoining property owner is merely that; it does not rise to the level of an extraordinary public interest. (See Hamer v. Board of Education of Township High School District No. 113 (1986), 140 Ill. App. 3d 308 (the public interest doctrine should only be invoked in cases involving an extraordinary degree of public concern and interest).) Similarly, with respect to Shifris’ contention that construction of a building on a flood plain could cause threats to the health, safety and welfare of landowners in the adjoining area, we note that the County Department’s revocation of the permit eliminates any of these threats and that any person seeking a permit in the future will be required to satisfy several requirements, one of which is that any construction will not be contrary to the public interest.

With respect to the necessity of an authoritative determination for the guidance of officials, the result of a judicial determination concerning the base flood elevation for the Rosenthal property at the present time would not be of any “guidance” value to the County Department and IDOT/DOWR officials in light of the fact that any figure is subject to future change in accordance with a change in the physical nature of the property and property surrounding it. Lastly, the issue of whether the County Department properly revoked the permit here will not recur; a future request for a permit will raise different questions such as the flood elevation at the future time of an application for a permit and the type of proposed construction and a grant or denial of the permit will not be evaluated upon the conditions as they existed when the first permit was revoked.

In light of the foregoing, we find it unnecessary to address any other issues raised by the parties. The orders appealed from are affirmed, and the cross-appeal filed by the Rosenthals is dismissed.

Judgments affirmed; cross-appeal dismissed.

LORENZ and PINCHAM, JJ., concur.

       Justice Pincham participated in the decision prior to his resignation.


text:
    ASHWIN SHAH, Petitioner-Complainant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents.
    First District (5th Division)
    No. 1—89—0069
    Opinion filed December 15, 1989.
    Rehearing denied January 17, 1990.

      Ashwin Shah, of Chicago, petitioner pro se.

    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Tanya Solov, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.
    Kenneth A. Jenero, of Borovsky, Ehrlich & Kronenberg, of Chicago, for respondent Warshawsky & Company.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Petitioner Ashwin (Kenny) Shah appeals from an order of the Illinois Human Rights Commission (Commission) entered in a case arising out of his charges of employment discrimination against respondent Warshawsky & Company. Warshawsky discharged Shah from his job as a stock supervisor on May 7, 1984. Shah, who is an Asian Indian native, filed a charge of employment discrimination with the Department of Human Rights (Department) alleging that he had been subjected to discriminatory working conditions and harassment because of his national origin. An amended charge claimed that Shah was unlawfully discharged because of his national origin, an alleged physical handicap, and/or in retaliation for opposing the alleged discriminatory practices of Warshawsky.

The Department conducted an investigation of Shah’s charges and, after a fact-finding conference, issued a report in March 1985. The Department found that there was substantial evidence to support Shah’s claims that he was subjected to unequal terms and conditions of employment, e.g., required to perform union duties and being frequently paged on his breaks — tasks not required of non-Indian supervisors. The Department dismissed Shah’s unlawful discharge claims after concluding that there was insufficient evidence to support them. It was instead determined that Shah was discharged for falsifying his employment application in several aspects: his educational level; dates of prior employment, duties, and reasons for leaving; and concealment of a preexisting ankle injury.

The report also indicated that Bashir Khan, an Indian manager for Warshawsky, had recommended Shah’s discharge and that non-Indian employees had been discharged for falsifying employment applications. The Department further found that Shah’s retaliatory discharge claim was baseless since Warshawsky did not have notice of the alleged discrimination prior to his discharge. It additionally concluded that Shah’s ankle injury did not qualify as a protected handicap under the Illinois Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, par. 1—103(1)).

Thereafter, Shah requested review by the Commission of the Department’s dismissal of his discharge claims. In response, the Department reiterated all but one of its original findings and conclusions. After receiving an affidavit by Jay Thakker, another Indian supervisor, the Department decided there was substantial evidence to support Shah’s claim that he was discharged because of his national origin. After reviewing the two charges dismissed by the Department, the Commission found that more evidence was needed in order to determine whether Shah’s ankle injury was a protected handicap. However, the Commission agreed the handicap claim should be dismissed because there was no substantial evidence indicating that Shah had been dismissed for this reason. The same finding was made with respect to the retaliatory discharge claim, and both claims were dismissed in October 1985. A complaint of civil rights violation was then issued on two bases: the unequal terms and conditions of employment claim and the claim of discharge based on national origin. Shah then moved to amend the complaint to include the claim of handicap discrimination, and the Commission denied the motion.

A public hearing lasting five days was held on the complaint in January 1987. The administrative law judge (ALJ) issued her 37-page recommended order and decision in January 1988. After reviewing the evidence, the ALJ prepared detailed findings including the following.

Shah was hired by Warshawsky as a stock supervisor in July 1983 after being interviewed by the personnel manager, Thomas Bykowski; William Stankiewicz, stock manager; Bashir Kahn, warehouse manager; and William Bondy, operations manager. Bondy and Kahn were unfavorably impressed with Shah and told Stankiewicz to interview other applicants. Stankiewicz kept insisting that Shah was well qualified for the position and eventually prevailed. Shah was offered the position at a salary of $350 per week. Shah then filled out an employment application form. He responded negatively to the questions: “Were you ever injured?” and “Do you have any physical defects that preclude you from performing any work for which you are being considered?” In fact, in January 1980, Shah had fallen on ice and shattered the bones in portions of his right foot and leg and had had screws and a plate surgically inserted in his ankle with subsequent therapy. By signing the application, Shah certified that his statements were true. Warshawsky does not routinely verify information given on a supervisor’s employment application and did not do so with Shah’s application. Under Warshawsky’s personnel policy, applicable to all employees, falsification of an employment application is grounds for suspension or termination, and, prior to Shah’s dismissal, several union employees had been terminated for this reason.

On July 18, 1983, Shah started working for Warshawsky as a supervisor of the sixth floor and supervised six to eight union employees. Stankiewicz, who is of Polish national origin and was Shah’s supervisor, reported to Khan who, like Shah, is originally from India. Khan reported to Bondy, a white American male. Other stock supervisors included Jay Thakker, of Indian origin; and other males of Polish, Puerto Rican, and black American origins. All supervisors had the same duties, e.g., assigning work to stock clerks, directing the timely movement of stock, maintaining good housekeeping and keeping aisles free of blockage, maintaining proper levels of stock for the filling of orders, and resolving stock irregularities and incomplete orders.

In the fall of 1983, Khan discovered that Shah had failed to timely process several stock transfers and that he had backdated certain transfer documents. Khan warned Shah that he would lose his job if he was again involved in falsifying documents. In October 1983, Stankiewicz reported to Khan that he was experiencing problems with Shah’s work performance. Stankiewicz prepared a written “special review,” noting that disciplinary action would be taken if Shah continued to circumvent Warshawsky’s established procedures. As stock manager, Stankiewicz similarly counselled, warned, and disciplined non-Indian stock supervisors.

After the special review, Shah’s performance improved substantially and he was complimented by Stankiewicz, Khan, and Bondy. As a result, Stankiewicz then transferred Shah to the fourth floor, one of the busiest floors with more stock and clerks. For the most part, Stankiewicz was pleased with Shah’s fourth-floor performance and gave him handwritten congratulatory memos to that effect and, in addition, generally supported Shah’s handling of personnel problems. In December 1983, Shah met with Khan to complain of alleged inadequacies in Stankiewicz’ supervision of him. Khan told Shah that he would seek a transfer for him. Later in December, Shah requested four days off during the holidays. After first refusing because of Shah’s lack of seniority, Stankiewicz changed his mind after conferring with Khan and gave Shah one day off. Shah responded that he would take the remaining three days as sick leave, and Stankiewicz requested a physician’s statement. Thereafter, Shah threatened to sue the company and, after a meeting with Stankiewicz and Khan, was warned to stop threatening Warshawsky.

On January 23, 1984, Stankiewicz prepared a six-month review of Shah’s performance — rating him satisfactory overall, excellent as to employee development, and good for all other factors — and recommended an 8xk% salary increase. The only other employee for whom Stankiewicz recommended a large increase was Jay Thakker, who was the highest paid stock supervisor. Both Khan and Bondy questioned such a large increase for a six-month employee, but Stankiewicz prevailed, arguing that Shah’s performance had improved 100% after the special review. Shah initially refused the increase, saying that it was not enough. After meeting with Kahn and Stankiewicz, Shah accepted the raise but noted on the payroll documents, “Too Low Increase!”

Beginning in February 1984, Stankiewicz discovered that many irregularity reports regarding fourth-floor stock were being voided, which meant that stock initially reported missing was later found on the floor. On one such occasion, Stankiewicz checked for the missing stock and, by following established procedures, located it behind another box. Shah was warned about insufficient searches and told to work on the floor rather than remaining at his desk. Shah became upset, and after shouting at Stankiewicz for a while, was told that he was fired. Shah and Stankiewicz then met with Khan in the latter’s office. Khan said he would investigate the matter and warned Shah about being insubordinate. In addition to questioning both participants during the investigation, Kahn talked to a stock clerk who witnessed the event and who was of Indian origin. The clerk corroborated Stankiewicz’ version, and Khan reported his findings to Bondy. After a meeting with Bondy, Khan, and Shah, Khan decided to place Shah on six-months’ probation, and written notice was given to him. Following this, Shah wrote a letter to the company’s president stating that all the stock supervisors considered Stankiewicz to be incompetent. Although space was alloted for the signatures of both Shah and Thakker, only Shah signed it. There is no evidence that Warshawsky ever received the letter prior to Shah’s termination.

Warshawsky has a policy prohibiting supervisory employees from performing bargaining-unit (union) work. However, when necessary, supervisors occasionally perform certain housekeeping chores, such as keeping the aisles clear, moving hand trucks, etc., in order to avoid safety hazards. When Stankiewicz instructed supervisors to, e.g., “clean your floor,” he expected them to have their clerks perform the task. No union grievance had ever been filed against the company because supervisors had performed union work.

The record also indicates that Stankiewicz needed to frequently page supervisors on a public address system. All supervisors had been paged while on lunch or coffee breaks, and all of them had complained about this practice. Supervisors were also expected to use the stairs instead of elevators — generally, one flight up and two flights down — so as to reserve elevators for stock. All supervisors had several times complained to Khan regarding Stankiewicz’ treatment of them, e.g., he was too tough or too demanding. During busy periods, Stankiewicz would transfer clerks from one floor to a busier floor. Shah and two non-Indian supervisors had complained that this practice left them unfairly short-handed on their floors. At some time after receiving a copy of a political cartoon with handwritten comments derogating Asian Indians, Thakker took it to Stankiewicz. An investigation revealed it was sent from a department not under the control of Stankiewicz, Khan, or Bondy. Khan telephoned the appropriate manager and requested him to discipline the responsible party.

The ALJ also found that Shah’s duties required that he spend 90% to 95% of his time patrolling the warehouse floor on foot. In late January 1984, Khan noticed that Shah was spending an inordinate amount of time seated at his desk, sometimes with his foot propped up on the desk. Upon Khan’s inquiry, Shah said that his ankle bothered him when he walked. During February and March, Shah was observed seated more frequently (the early months of the year were Warshawsky’s peak season) and his absences from work increased. Stankiewicz discussed these matters with Shah.

In February, Khan requested a copy of Shah’s employment application and afterwards informed Bondy that the application did not mention any ankle injury. Bondy noted that Shah had also stated on the form that he had no physical problem that would prevent him from doing his job. Since Shah’s ankle was interfering with his job performance, Bondy asked Dale Bradley, the personnel director, to check other information on the application. In checking Shah’s representation that he had earned a master’s degree from Roosevelt University, Bradley was told by a woman in the university’s records department, in a telephone conversation, that Shah had only attended the school for one semester and had not earned a degree. Bradley asked for a written confirmation several times, but it was not received before Shah’s dismissal.

Subsequently, in early March, Bradley sent verification requests to four of Shah’s listed previous employers and learned that (1) Shah had worked for Sweetheart Cup for three months and was discharged for unsatisfactory performance — Shah had claimed that he worked there 22 months and was laid off; (2) Olson Electronics responded that Shah had worked for it for seven months as a full-time salesman — Shah’s application claimed that he had worked there for 20 months as a manager. One of the other companies listed had gone out of business, and the records of the fourth company were unavailable since it was in the process of moving.

On April 2, a pin in Shah’s ankle popped out and he gave Stankiewicz a doctor’s statement indicating that surgery was required. Shah requested four to six weeks’ medical leave. When Khan, who was upset at being left short-handed during the company’s busy season, confronted Shah about his failure to list the ankle injury on his application, Shah accused management of having altered the form. He later said that he had possibly overlooked the inquiry questions. Khan asked permission of Bondy to terminate Shah. Bondy advised Khan to give Shah medical leave since the application investigation was still being conducted. It was Warshawsky’s policy to not terminate an employee who was on, or was going on, medical leave.

Surgery was performed on Shah on April 6, and he returned to work on May 7. Bondy gave Khan permission to discharge him on his return. The reasons given for the discharge were: (1) falsification of Shah’s application for not revealing his ankle injury; and (2) misstatements regarding his education. Bondy did not use the prior employment history discrepancies because he had been told that Shah had filed several lawsuits and Bondy feared he might file one against Sweetheart Cup. Stankiewicz was not consulted nor did he participate in the discharge decision.

When Shah was informed of his discharge and the reasons therefore, he objected and insisted that he had a master’s degree. Bondy dropped the education misrepresentation basis since he had not yet received written confirmation from Roosevelt University. Bondy then told Khan to discharge Shah just for “falsification of information.” On his day of discharge, Shah filed a discrimination charge with the Department of Human Rights.

Basing her decision upon these facts, the ALJ concluded that the preponderance of the evidence did not support Shah’s claim of national origin discrimination. Furthermore, Warshawsky’s reason for Shah’s discharge, i.e., a good-faith belief that he had falsified his employment application, was legitimate and nondiscriminatory, and Shah failed to demonstrate that it was a pretextual reason.

A panel of three Commission members approved and adopted the ALJ’s recommendations. Shah’s request to present additional evidence was denied, and the panel also ruled that, based on the evidence, the ALJ was correct in not considering the handicap discrimination claim. The fall Commission denied Shah’s petition for rehearing, and this direct appeal followed.

In his appeal, Shah contends, in part, that the Commission’s decision should be vacated, reversed, modified with or without remand; that the order is against the manifest weight of the evidence and/or is arbitrary and constitutes an abuse of discretion; certain evidentiary rulings were incorrect; and that Shah was denied due process of law. Warshawsky argues that (1) the Commission’s determination that Shah was not discriminated against on the basis of his national origin was not against the manifest weight of the evidence; (2) this court lacks jurisdiction to review the administrative dismissal of Shah’s handicap discrimination and retaliation claims; (3) if jurisdiction does exist, dismissal was appropriate under the applicable standard of review; and (4) Shah’s other efforts to reinstate the handicap and retaliation claims, e.g., remand for the taking of additional evidence or amendment of complaint, are without adequate bases. In its brief, the Commission adopted Warshawsky’s arguments with three exceptions pertaining to whether Shah had initially established a prima facie case of discrimination; whether certain allegedly illegal questions, e.g., those inquiring about an applicant’s prior injuries, can be a legitimate basis for an employee’s discharge; and the jurisdictional issue.

The reason we have set forth the facts of this case in such detail is to demonstrate the all too frequent misuse of our judicial system today. Had this appeal been filed by any person other than a pro se petitioner, it would probably have been dismissed as a frivolous appeal. Given the applicable standard of review, these facts clearly illustrate that the Commission’s decision was unquestionably correct and must be affirmed.

Warshawsky’s jurisdictional objection that an order entered by the Commission on October 10, 1985, dismissing Shah’s claims of physical-handicap discrimination and retaliatory discharge was final and, thus, required a petition for review within 35 days thereof is without legal foundation. First, we must mention that at the time of the 1985 order, section 8 — 111(A)(1) of the Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, par. 8 — 111(A)(1) (since amended)) provided for judicial review of the Commission’s orders in accordance with provisions of the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 101 et seq.). In 1985, a proceeding for review was commenced by the filing of a complaint in the circuit court and issuance of summons within 35 days after service of a copy of the final agency decision. Ill. Rev. Stat. 1985, ch. 110, par. 3 — 103.

Although the Human Rights Act does not define “final order,” section 3 — 101 of the Administrative Review Law defines an “administrative decision” as “any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 101.) With certain exceptions, not applicable here, review of an administrative agency decision is not available until all administrative relief has been exhausted. (City of Springfield v. Carter (1989), 184 Ill. App. 3d 1.) Proceedings on Shah’s complaint had not been terminated in October 1985 with the dismissal of two of his charges; his discrimination based on national origin claim was still pending before the Commission. Thus, there was no finality at that time, and this court, therefore, has jurisdiction to review the Commission’s rulings on the handicap discrimination and retaliation claims as well as the national origin claim.

Contrary to Shah’s assertions, the role of an appellate court in reviewing Commission orders is quite limited. It must sustain the Commission’s fact findings unless they are contrary to the manifest weight of the evidence. (Ill. Rev. Stat. 1987, ch. 68, par. 8— 111(A)(2).) An agency’s factual determinations are contrary to the manifest weight of the evidence only when they are palpably erroneous or when the opposite conclusion is clearly evidenced. (Smith v. Chicago Board of Education (1988), 176 Ill. App. 3d 109.) This court cannot reweigh evidence, determine witnesses’ credibility, or independently evaluate the facts. (Pioneer Life Insurance Co. v. Woodard (1987), 152 Ill. App. 3d 236.) Since the record does not evince that the ALJ’s findings of fact, as adopted by the Commission, were contrary to the manifest weight of the evidence, this court is limited to determining whether the Commission’s final decision is either legally erroneous or factually against the manifest weight of the evidence. Pepsi-Cola General Bottlers, Inc. v. Human Rights Comm’n (1985), 137 Ill. App. 3d 288.

In making that determination, we use the three-step analysis enunciated in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817, to review employment discrimination cases. First, petitioner must establish by a preponderance of the evidence a prima facie case of unlawful discrimination. Upon such a showing, an employer then has the burden of proof to rebut the presumption of unlawful discrimination by articulating a clear, nondiscriminatory reason for its employment decision. If the employer meets this burden, the presumption fails and the petitioner must then prove by a preponderance of the evidence that the employer’s reason is not the true reason, but merely a pretext. (See also Milan v. Human Rights Comm’n (1988), 169 Ill. App. 3d 979.) Thus, the ultimate burden of proving that an employer engaged in intentional discrimination rests on the complainant (Acorn Corrugated Box Co. v. Human Rights Comm’n (1989), 181 Ill. App. 3d 122), and Shah has failed to meet this standard of proof.

Shah, as an Asian Indian, is clearly a member of a group protected from discrimination on the basis on national origin. (Ill. Rev. Stat. 1985, ch. 68, pars. 1 — 103(K), (Q).) His complaint alleges facts which, if true, establish a basis for a discrimination charge. However, his prima facie case indicating that he was subjected to unequal terms and conditions of employment because of his national origin was successfully rebutted by Warshawsky showing that it had treated Shah no differently than its other employees. The evidence fully supports Warshawsky’s claim that all supervisors — Indian and non-Indian — were treated in a similar manner, e.g., they were expected to keep their aisles clear of safety hazards and to use stairs instead of elevators when necessary, were paged during their lunch hours and breaks, and sometimes had staff removed from their floors. In fact, one could easily deduce an opposite conclusion in that Stankiewicz insisted on hiring Shah, quickly promoted him, complimented and supported him, and gave him a salary increase larger than all other supervisors, except for Thakker, who is also of Indian origin. And, when the derogatory cartoon incident occurred, Shah’s superiors immediately investigated and informed the appropriate manager (not in Shah’s division) to take corrective action.

Warshawsky also demonstrated a legitimate, nondiscriminatory reason for discharging Shah — falsification of his employment application — a reason underlying the discharge of other, non-Indian employees. The record indicates that when Shah could not properly perform his duties because of his ankle problems, Warshawsky decided to look at his application form. After so doing, and following an investigation, Shah’s employer concluded that Shah had deliberately falsified his answers, not only as to his prior ankle injury but also as to his employment history and his level of education. Although it was discovered after Shah’s discharge that he did indeed have a master’s degree from Roosevelt University, at the time of Shah’s termination, Warshawsky had good reason to believe the information given to it by the university. A good-faith belief for an employment decision is sufficient to rebut an intentional discrimination charge. (See Turner v. Texas Instruments, Inc. (5th Cir. 1977), 555 F.2d 1251; Patton v. Carson, Pirie, Scott & Co. (1982), 7 Ill. HRC Rep. 116.) Shah’s employer also considered the factors concerning his honesty and integrity in making its discharge decision, e.g., backdating of documents. Shah failed to proffer any evidence that would indicate that these reasons given by Warshawsky for his discharge were pretextual and that he was actually terminated because he is an Asian Indian.

It is also clear that the Commission was correct in denying Shah the right to reinstate his handicap discrimination charge after the ALJ dismissed it. Shah did not demonstrate the existence of any substantial, relevant evidence on this matter which was unavailable at the time of the hearing and which could not have been discovered with due diligence as required by Commission rules. (See 56 Ill. Adm. Code, §5300.1010 (1985).) We also agree that the prerequisites for establishing a prima facie case of handicap discrimination are nonexistent in this case, since Shah’s alleged handicap is clearly related to the adequate performance of his job as a stock supervisor. (See Ill. Rev. Stat. 1985, ch. 68, par. 1—103(I)(1); Acorn Corrugated Box Co. v. Human Rights Comm’n (1989), 181 Ill. App. 3d 122.) Moreover, the evidence shows that Shah was discharged for falsifying his employment application, not only as to injury inquiries, but also regarding his employment history and educational level.

Accordingly, we must affirm the Commission’s order since the record overwhelmingly supports its conclusions.

Affirmed.

PINCHAM and COCCIA, JJ., concur.

       Justice Pincham participated in the decision prior to his resignation.


text:
    FRED CARBONARA et al., Petitioners-Appellants, v. NORTH PALOS FIRE PROTECTION DISTRICT et al., Respondents-Appellees.
    First District (5th Division)
    No. 1—89—1181
    Opinion filed December 15, 1989.

      Mathias W. Delort, of Odelson & Sterk, Ltd., of Evergreen Park, for appellants.
    Cecil A. Partee, State’s Attorney, of Chicago (Joan S. Cherry, Deputy State’s Attorney, and Robert E Cleary, Assistant State’s Attorney, of counsel), for appellee Stanley T. Kusper, Jr.
    E. Kenneth Friker and David A. Izzo, both of Klein, Thorpe & Jenkins, Ltd., of Chicago, for appellee North Palos Fire Protection District.
   JUSTICE LORENZ

delivered the opinion of the court:

Fred Carbonara, Jayne A. Duewerth, Patricia A. Phelps, Stanley Chlopek, and David P. Phelps (petitioners) appeal from the dismissal of their petition for election contest.

We affirm.

Petitioners, all resident electors and legal voters in suburban Palos Township in Cook County, Illinois, successfully sought to place on the ballot in the general election held November 8, 1988, a referendum to transfer territory from the North Palos Fire Protection District to the Roberts Fire Protection District. The referendum, however, was defeated by a vote of 156 to 143 against the transfer.

Petitioners thereafter filed a petition, as amended, in the circuit court of Cook County against the North Palos Fire Protection District (North Palos) and the clerk of Cook County, seeking to nullify the results of the election. The petition stated that each of the precincts in which the election was held contained voters who resided in the territory and voters who resided outside the territory. Although election judges were provided with instructions as to which voters should vote on the fire district proposition, petitioners alleged, on information and belief, improprieties concerning the direction of voters.

More specifically, petitioners alleged that election judges in Palos precincts 11, 23, and 27 “failed or refused to properly direct” voters who were eligible to vote on the referendum to the appropriate voting booths. Petitioners alleged four voters in each of precincts 11 and 23, and five voters in precinct 27, were “never eventually directed to the proper voting booth and cast their ballot[s] at the improper voting booth.”

As to Palos precinct 11, petitioners alleged at least 12 persons were directed to voting booths “without regard to whether or not the booths contained the appropriate ballot.” Further, petitioners alleged voting booths in the precinct “did not bear a sign designating which type of ballot the booth contained.” The petition named the four voters in the precinct who were eligible to vote on the referendum but could not because they were allegedly directed to the wrong voting booth.

Petitioners also alleged, generally, that “in several of the precincts” voters outside the territory were directed to the voting machine which contained the referendum.

In other allegations not made on information and belief, the petition stated the ballots failed to contain separate security punches as required under section 26A — 6.1 of the Election Code (Ill. Rev. Stat. 1987, ch. 46, par. 24A — 6.1). Because the same computer ballots were issued to all voters in the precincts, petitioners alleged, “a voter residing outside the territory may have punched a vote against the proposition by hand even though he was directed to the appropriate non-proposition voting booth.”

North Palos moved to dismiss the amended petition pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—615), contending the allegations were insufficient to support nullification of the election and that petitioners had failed to allege facts to establish the election result would have been different had the alleged improprieties not existed.

The circuit court granted North Palos’ motion on April 12, 1989. This appeal followed.

Opinion

Section 23 — 20 of the Election Code requires that election contest petitions must be verified by affidavit in the same manner as complaints in other civil cases may be verified. (Ill. Rev. Stat. 1987, ch. 46, par. 23 — 20.) Section 2 — 605 of the Code of Civil Procedure permits matters stated in verified pleadings to be stated upon information and belief. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 605(a).) We note that the allegations made on information and belief in the petition before us are supported by the signed certification of each petitioner, excepting Chlopek, that the undersigned “verily believe[d] the same to be true.” Such signed statements are sufficient to support allegations in election contest petitions made on information and belief. (See Clark v. Ulrich (1984), 121 Ill. App. 3d 821, 460 N.E.2d 15.) The only issue before the court is whether the allegations made in the petition are sufficient to withstand respondent’s motion to dismiss.

In In re Contest of the Election for the Offices of Governor & Lieutenant Governor Held at the General Election on November 2, 1982 (1983), 93 Ill. 2d 463, 444 N.E.2d 170, the supreme court reconfirmed that election contest petitions must meet the strict pleading requirements earlier set forth by the court in Zahray v. Emricson (1962), 25 Ill. 2d 121, 182 N.E.2d 756. In assessing the petition to challenge the results of the gubernatorial election of November 2, 1982, the court first considered the requirements for election contest petitions set forth in section 23 — 1.2 of the Election Code. Section 23 — 1.2 provides, in part, that the petition must contain:

“(d) A statement that each petitioner believes (i) mistake or fraud has been committed in the casting, counting or return or canvass of the votes for the office involved or (ii) there was some other irregularity in the contest of the contested election, or both;
(e) A statement declaring with particularity the specific precincts in which the mistake, fraud or irregularity relied upon * * * was believed to have occurred, or such other grounds relied upon by petitioner;
(g) A statement declaring that, as a consequence of the mistake, fraud or irregularity alleged, the result of the election, as officially proclaimed, was incorrect;
(h) A statement declaring the Petitioner’s belief as to which candidate did receive the highest number of votes[.]” (Ill. Rev. Stat. 1987, ch. 46, par. 23-1.2.)

Those requirements, the court concluded, must be presumed to have been enacted with knowledge of the strict pleading requirements set forth in Zahray, and subsequent cases decided prior to enactment which relied on Zahray. In re Contest, 93 Ill. 2d at 482-83, 444 N.E.2d at 179.

Under the pleading requirements set out in Zahray, the court observed, petitions seeking a vote recount must contain positive and clear assertions that the official results were incorrect and that the election result would be changed upon recount. (In re Contest, 93 Ill. 2d at 478-79, 444 N.E.2d at 176-77.) Further, allegations which, in substance, state only that the petitioners believe a recount would change the result of the election are insufficient to withstand a motion to dismiss. (In re Contest, 93 Ill. 2d at 478, 444 N.E.2d at 177.) Those requirements, the court stated, are “based upon the unwillingness of the courts to assume jurisdiction over a mere exploratory process seeking to overturn the results determined by sworn public officials, who are presumed to have performed their statutory duties.” In re Contest, 93 Ill. 2d at 482, 444 N.E.2d at 139-40.

Petitioners here argue that the pleading requirements set out in Zahray and In re Contest apply only to “traditional” recount cases facilitated through discovery provisions provided in the Election Code. Petitioners point out that they do not dispute the accuracy of the vote count. Rather, petitioners argue that, because voters are misdirected, eligible voters did not vote on the referendum while ineligible voters were permitted to do so. Petitioners contend because the irregularities complained of would not appear on the face of the ballots and, therefore, the discovery process would be unavailing, we should relax the pleading requirements set out in Zahray and In re Contest.

We do not agree the petition’s allegations may be viewed under different standards than as discussed in those cases. Section 23— 24 of the Election Code provides that challenges to elections involving public questions are to be instituted “in like form as in other cases of contested elections in the circuit court.” (Ill. Rev. Stat. 1987, ch. 46, par. 23 — 24.) Petitioners have not cited, nor have we otherwise discovered, authority establishing that the measure of sufficiency of allegations in an election contest petition varies according to whether a vote recount is the remedy sought. Further, in neither Zahray nor in discussion of that case in In re Contest did the supreme court indicate exception to application of the strict pleading requirements even though the petition in Zahray included allegations “[t]hat unqualified voters had been permitted to vote[.]” See Zahray, 25 Ill. 2d at 123, 182 N.E.2d at 757; In re Contest, 93 Ill. 2d at 477, 444 N.E.2d at 137.

We believe the amended petition in the instant case fails to allege with the requisite specificity a basis to nullify the results of the November 8, 1988, election regarding the referendum. Although, regarding eligible voters, the petition stated which precincts and the number of voters involved in the alleged misdirection, even identifying the four voters in precinct 11, the petition falls short of positively stating how the alleged misdirection affected the ultimate outcome of the election. The petition does not state the allegedly misdirected eligible voters would have voted in favor of the transfer, but were precluded from doing so. Nor does the petition allege that the allegedly misdirected ineligible voters voted against the transfer or even actually voted on the referendum. Absent such allegations to establish that the ultimate result of the election would have been different, we believe the petition is fatally defective regarding misdirection of voters.

We also do not believe that allegations regarding issuance of ballots which did not contain separate security punches provide a basis to reverse the trial judge’s dismissal of the petition. Section 24A — 6.1 of the Election Code states, in pertinent part:

“In all elections conducted pursuant to this Article, ballot cards shall have a security punch. In precincts where more than one ballot configuration may be voted upon, ballot cards shall have a different security punch for each ballot configuration. If a precinct has only one possible ballot configuration, the ballot cards must have a security punch to identify the election.” Ill. Rev. Stat. 1987, ch. 46, par. 24A — 6.1.

Although section 24A — 6.1 uses the word “shall,” we are aware that that term has been held merely directory in a variety of cases construing election statutes. (Serwinski v. Board of Election Commissioners (1987), 156 Ill. App. 3d 257, 509 N.E.2d 509.) Generally, in determining whether the provisions of an election statute are mandatory or directory, the supreme court has stated:

“[Wjhere the statute does not expressly declare its provisions to be mandatory or compliance therewith to be essential to its validity, the failure to strictly comply, in the absence of fraud or a showing that the merits of the election were affected thereby, is not fatal.” People ex rel. Meyer v. Kerner (1966), 35 Ill. 2d 33, 39, 219 N.E.2d 617, 620.

We find reason to conclude that section 24A — 6.1 is only directory, and, therefore, the failure to comply therewith cannot provide a basis for the relief sought by petitioners. We find no language in the Election Code expressly stating that the failure to comply with section 24A — 6.1 voids an election. Indeed, inclusion of separate security punches in ballots would only insure that the votes of ineligible voters are not tabulated. However, because we have concluded in the first instance that the petition fails to sufficiently allege the election was affected with respect to ineligible voters, we find no basis to determine that the failure to provide security punches on the ballots would have affected the election’s outcome.

Affirmed.

MURRAY, P.J., and PINCHAM, J., concur.

       Justice Pincham participated in the decision prior to his resignation.