text:
      In re ELEANOR ARMELL, a Minor.
    First District (2nd Division)
    No. 1—88—1003
    Opinion filed January 16, 1990.
    Rehearing denied February 13, 1990.

      Patrick T. Murphy, Public Guardian, of Chicago (Helene M. Snyder, of counsel), for appellant.
    Sidley & Austin, of Chicago (Diane B. LaPlante, of counsel), for appel-lee.
    Craig Dorsay, of Oregon Legal Services, of Portland, Oregon, and Indian Law Support Center, of Boulder, Colorado (Robert Golten, of counsel), for amici curiae.

   PRESIDING JUSTICE DiVITO

delivered the opinion of the court:

The public guardian appeals from the circuit court order dismissing the neglect and dependency proceeding in the juvenile court and transferring the case to the jurisdiction of the tribal court of the Prairie Band of Potawatomi Indians (Potawatomi tribe) pursuant to the provisions of the Indian Child Welfare Act (ICWA) (92 Stat. 3069, 25 U.S.C. §§1901 through 1963 (1978)). As attorney for the minor respondent, the public guardian contends that: (1) under the provisions of the ICWA, good cause existed for the circuit court not to transfer jurisdiction of the case; (2) if the ICWA is interpreted to permit jurisdiction by the tribal court, it is unconstitutional; and (3) the circuit court lacked subject matter jurisdiction.

On April 15, 1985, Eleanor Armell, who was born on November 5, 1981, and was then B1k years old, was found going through a garbage can in an alley in the Uptown neighborhood of Chicago. Eleanor was found to have an active, untreated case of tuberculosis. Michelle Pow-less, Eleanor’s undomiciled mother, could not be found until sometime later.

The Division of Child Protective Services, a division of the Illinois Department of Children and Family Services (DCFS), conducted an investigation which included interviews with a relative and social workers from various social agencies, including American Indian organizations and the Winnebago tribe. The investigation, at that time, indicated that Eleanor’s deceased father, Powless, and Eleanor belonged to the Winnebago tribe. Pursuant to the provisions of the ICWA, that tribe was notified and became involved in the case.

On April 17, 1985, after a hearing in the juvenile court, temporary custody of Eleanor was awarded to DCFS, which then placed her with her maternal great aunt. On May 3, 1985, after removal from her aunt’s home at her aunt’s request, Eleanor was placed in the foster home of Petty Officer and Mrs. Paul Swett in Great Lakes, Illinois. An American Indian and a member of the Menomenee tribe, Mrs. Swett immediately involved Eleanor in the activities of the Menomenee tribe and has continued to educate Eleanor about her Indian heritage and culture.

After temporary custody had been given to DCFS, the case was continued to give the Winnebago tribe an opportunity to intervene. On September 20, 1985, Powless objected to a motion by the Winnebago tribe to transfer the case to its tribal court pursuant to the ICWA. That objection by Eleanor’s mother effectively barred transfer of the case to the Winnebago tribal court. (See 25 U.S.C. §1911(b) (1978).) On May 5, 1987, the Winnebago tribe again intervened and again filed a petition to transfer jurisdiction and dismiss the case. On July 20, 1987, Powless again objected to the transfer of jurisdiction to the Winnebago tribal court.

On October 6, 1987, the date set for trial, the Winnebago tribe filed an emergency motion to stay foster care placement, arguing that placement with the foster family was improper because the “minor child presently is placed in a foster care placement with a family where the father is not Native American and the mother is not Winnebago or Potawatomi.” This motion provided the first indication that Michelle Powless was not a Winnebago Indian, but a Potawatomi Indian. The circuit court continued the case pending notification of the Potawatomi tribe to determine whether Eleanor’s mother was a Pota-watomi and, if so, to ascertain if the Potawatomi tribe wished to intervene.

On October 21, 1987, the Potawatomi tribe informed the court that Powless was an enrolled member of the Prairie Band of Potawat-omi Indians and that Eleanor was not a member, but was eligible for enrollment in the tribe. On November 17, 1987, the Potawatomi tribe entered an appearance and filed a motion to transfer jurisdiction and dismiss the case. On December 10, 1987, Eleanor was enrolled as a member of the tribe, without the knowledge or consent of her temporary custodian, DCFS. On December 18, 1987, pursuant to the Pota-watomi tribe’s motion for transfer, Powless, through her counsel the public defender, informed the court that she did not object to transfer of jurisdiction. Neither the Winnebago tribe nor the State’s Attorney objected to transfer. DCFS made no response. The public guardian, as Eleanor’s attorney, objected to transfer, asserting that “good cause” existed for Illinois to retain jurisdiction of this case because it would not be in the child’s best interest for the Potawatomi tribe to exercise jurisdiction.

The public guardian then sought discovery to present certain evidence to the court. After Powless and the Winnebago tribe objected, arguing that there were no factual issues and that only legal issues were involved, the circuit court quashed the notices of deposition which had been sent by the public guardian.

On March 18, 1988, after presentation of written briefs and oral arguments, the circuit court found that good cause did not exist for Illinois to retain jurisdiction of this case and ordered that jurisdiction be transferred to the Potawatomi tribal court. The public guardian filed a notice of appeal on the same day, and the circuit court granted a stay of the order until March 31, 1988. On that day, the public guardian, as counsel for Eleanor, filed an emergency motion with this court for stay of the circuit court order. This court initially granted a temporary stay pending receipt of briefs on the issue, and, on April 13, 1988, this court denied a permanent stay. On April 18, 1988, the public guardian filed a motion for supervisory order with the Illinois Supreme Court requesting a stay of the circuit court order. The Pota-watomi tribe filed its objection to this motion on April 23, 1988. On April 27, 1988, while there was no stay of the circuit court order in effect, the Potawatomi tribal court convened and affirmatively accepted jurisdiction of the proceeding. After the tribal court ordered that temporary custody of Eleanor be awarded to the tribe’s social service agency pending an investigation to determine the best possible placement for her, that agency determined that Eleanor should remain with her present foster parents while it made its investigation.

On May 3, 1988, the Illinois Supreme Court entered a supervisory order staying enforcement of the circuit court’s order pending the appeal. Subsequently, on May 13, 1988, the public guardian requested that the circuit court set a status hearing in the juvenile case. Counsel for the Potawatomi tribe, counsel for the Winnebago tribe, the State’s Attorney, and the public defender as Powless’ lawyer responded to this motion by arguing that the May 3, 1988, order of the Illinois Supreme Court staying all proceedings was unenforceable because the Potawatomi tribal court had entered its order on April 27, 1988, which effectively deprived the supreme court of jurisdiction. The circuit court refused to enter an order and struck the case from its call, stating it did not have jurisdiction and that it needed further direction from the Illinois Supreme Court.

The public guardian then filed a motion in the supreme court for a further supervisory order. Relying upon the April 27, 1988, tribal court order and the provision of the ICWA which requires States to give full faith and credit to tribal court orders in child custody proceedings (25 U.S.C. §1911(d) (1978)), the Potawatomi tribe, joined by the State’s Attorney and the public defender, filed a motion for reconsideration of the supervisory order. On August 24, 1988, the Illinois Supreme Court entered an order affirming its previous entry of the supervisory order.

During the pendency of this case, Eleanor has continued to live in the home of Petty Officer and Mrs. Swett. In the summer of 1987, Swett was transferred to California. Because of her highly adverse reaction to the prospect of removal from the Swett home, Eleanor was allowed by DCFS and the court, over the objections of the Winnebago tribe, to move to California with the Swett family. Eleanor has therefore lived with her foster family for more than half of her eight years of life.

THE INDIAN CHILD WELFARE ACT (ICWA)

The ICWA of 1978 (92 Stat. 3069, 25 U.S.C. §§1901 through 1963 (1978)) was enacted to prevent the results of the separation of large numbers of Indian children from their families and tribes caused by adoption or foster care placement in non-Indian homes by State child welfare entities. The congressional findings that were incorporated into the ICWA reflect the sentiment that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children. (25 U.S.C. §1901 (1978).) Hence, the ICWA provides Indian tribes jurisdiction to determine child placement and adoption.

At the core of the ICWA. are its provisions concerning jurisdiction over Indian child custody proceedings. Section 1911 provides a dual jurisdictional scheme. Section 1911(a) establishes exclusive jurisdiction in the tribal courts for proceedings concerning an Indian child “who resides or is domiciled within the reservation of such tribe.” Section 1911(b), the section applicable to the case at bar, creates tribal jurisdiction in cases involving children not domiciled on the reservation. It states:

“In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.” (Emphasis added.) 25 U.S.C. §1911(b) (1978).

I. “GOOD CAUSE” ISSUES

The public guardian initially contends that, in this case, there was “good cause” not to transfer jurisdiction to the Potawatomi tribal court. The burden of establishing good cause not to transfer is on the party opposing the transfer. 44 Fed. Reg. 67,591 (1978).

The public guardian argues that in determining whether there was “good cause” not to transfer jurisdiction, the circuit court should have: (a) considered the best interests of Eleanor; (b) determined whether there was a good-faith compliance with the ICWA; (c) applied forum non conveniens considerations; and (d) ruled that Eleanor’s mother should have been estopped from consenting to the transfer.

A

The public guardian argues that pursuant to the ICWA and Illinois law the circuit court should have taken into account the best interests of Eleanor in deciding whether good cause existed not to transfer the case. He contends that when ascertaining whether good cause existed, the circuit court should have interpreted section 1911(b) in conjunction with section 1902, which states that a policy of the ICWA is to protect the best interests of Indian children. He argues that in determining the existence of good cause, the circuit court should have considered such factors as the psychological effects of a transfer on Eleanor. Relying upon In re G.L.O.C. (1983), 205 Mont. 352, _, 668 P.2d 235, 238, and In re M.E.M. (1981), 195 Mont. 329, 336, 635 P.2d 1313, 1317, the public guardian maintains that failure to consider these factors and the child’s best interests constituted reversible error. We disagree.

The two cases relied upon by the public guardian are not relevant to a determination of the existence of good cause under section 1911(b). Both In re M.E.M. and In re G.L.O.C. are authority that a hearing must be held, with counsel representing the parents, to determine whether good cause exists not to transfer. (In re M.E.M., 195 Mont, at 336, 635 P.2d at 1317; In re G.L.O.C., 205 Mont, at_, 668 P.2d at 237.) In the instant case, a hearing was held in which all parties were represented by counsel and in which the issue was whether good cause existed not to transfer jurisdiction.

What is good cause not to transfer jurisdiction is set forth by the Department of the Interior, Bureau of Indian Affairs (BIA), which has published guidelines for the implementation of the ICWA. (Guidelines for State Courts, Indian Child Custody Proceedings (1979), 44 Fed. Reg. 67, 584 et seq. (1978).) The BIA guidelines, while not controlling, must be accorded great weight in construing the ICWA. Batterton v. Francis (1977), 432 U.S. 416, 424, 53 L. Ed. 2d 448, 456, 97 S. Ct. 2399, 2405.

The BIA guidelines state that good cause not to transfer exists when the child’s tribe does not have a tribal court or when any of the following circumstances exist:

“(i) The proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing.
(ii) The Indian child is over twelve years of age and objects to the transfer.
(iii) The evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses.
(iv) The parents of a child over five years of age are not available and the child has had little or no contact with the child’s tribe or members of the child’s tribe.” 44 Fed. Reg. 67,591 (1978).

Moreover, the BIA guidelines state that socio-economic conditions and the perceived adequacy of tribal or BIA social services may not be considered in determining whether good cause exists. Commentary to this section of the BIA Guidelines stresses that an Indian child’s lack of present contacts with a tribe or reservation should not be used to justify denying transfer, since tribes have a transcendent interest in developing a relationship with their members. (BIA Guidelines, §C.3. Commentary, 44 Fed. Reg. 67,591 (1978).) The case law supports the definition of “good cause” under section 1911(b) propounded by the BIA. See In re Junious M. (1983), 144 Cal. App. 3d 786, 796, 193 Cal. Rptr. 40, 46 (the child’s lack of contacts with a tribe or his inability to form any sort of tribal identification does not prevent transfer of jurisdiction); In re Appeal in Coconino County Juvenile Action No. J—10175 (1987), 153 Ariz. 346, 736 P.2d 829 (the fact that an Indian child had been living in a non-Indian home is not a reason not to adhere to the jurisdictional provisions of the ICWA).

Moreover, considerations involving the best interests of the child are relevant, not to determine jurisdiction, but to ascertain placement. (See Mississippi Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 104 L. Ed. 2d 29, 109 S. Ct. 1597; In re Appeal in Pima County Juvenile Action No. S—903 (1981), 130 Ariz. 202, 203, 635 P.2d 187, 188, cert. denied sub nom. Catholic Social Services v. P.C. (1982), 455 U.S. 1007, 71 L. Ed. 2d 875, 102 S. Ct. 1644.) For example, the Utah Supreme Court held in In re Adoption of Halloway (Utah 1986), 732 P.2d 962, 971-72, that issues of bonding and ultimate placement of the child were not proper considerations when the circuit court was deciding the issue of jurisdiction. We conclude, based upon all the foregoing, that, though any psychological effects the transfer may have on Eleanor may properly be considered when ascertaining placement, they are not factors which should be considered when deciding jurisdiction. Accordingly, the circuit court’s order quashing the notice of depositions, whose intent was to discover what psychological effect a transfer might have on Eleanor, was correct.

We find no merit in the public guardian’s argument that because Illinois law requires that in juvenile proceedings the best interests of the child are of paramount importance (see, e.g., Ill. Rev. Stat. 1987, ch. 37, par. 801—2(3)(c); Moseley v. Goldstone (1980), 89 Ill. App. 3d 360, 369, 411 N.E.2d 1145, 1152), good cause not to transfer jurisdiction exists in this case since transfer is against Eleanor’s best interests. The United States Supreme Court in Mississippi Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 45, 104 L. Ed. 2d 29, 46, 109 S. Ct. 1597, 1608, in interpreting section 1911(a) of the ICWA, reasoned that when Congress enacted the ICWA, it intended nationwide uniformity of terms and that State laws should not frustrate that intention. Therefore, the ICWA’s provision regarding “good cause” not to transfer jurisdiction should not be interpreted by individual State law. Illinois’ best-interest-of-the-child considerations are therefore inapplicable to ICWA’s jurisdictional requirements.

In Choctaw, though three years had elapsed since the children involved in that case had been adopted, the Supreme Court held that the legal question to be decided was who was to make the custody determination, “not what the outcome of that determination should be.” (Mississippi Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 53, 104 L. Ed. 2d 29, 50, 109 S. Ct. 1597, 1611.) In pertinent part, the Court stated:

“It is not ours to say whether the trauma that might result from removing these children from their adoptive family should outweigh the interest of the Tribe — and perhaps the children themselves — in having them raised as part of the Choctaw community. Rather ‘we must defer to the experience, wisdom, and compassion of the [Choctaw] tribal courts to fashion an appropriate remedy.’ ” Mississippi Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 54, 104 L. Ed. 2d 29, 50, 109 S. Ct. 1597, 1611, citing In re Adoption of Halloway (Utah 1986), 732 P.2d 962, 972.

We conclude that good cause not to transfer the case to the tribal court has not been shown. As the United States Supreme Court stated in Choctaw, Congress expressed a preference for the tribal court to determine these matters regardless of any psychological impact upon the child. Illinois’ best-interests-of-the-child considerations do not provide sufficient bases to deny transfer of jurisdiction under the ICWA. “good cause” provision.

B

The public guardian maintains that the good-faith efforts made in this case to comply with the ICWA constitute good cause not to transfer jurisdiction. He argues that the failure, until October 1987, of the Winnebago tribe and Powless to disclose that Powless was a member of the Potawatomi, not the Winnebago, tribe was fraud, as “[f]raud comprises anything calculated to deceive, as in acts, omissions, and concealment including breach of legal or equitable duty, trust or confidence resulting in damage to another, and encompasses silence if accompanied by deceptive conduct or suppression of material facts constituting active concealment.” (Grane v. Grane (1985), 130 Ill. App. 3d 332, 344, 473 N.E.2d 1366, 1374.) No cases are cited for the public guardian’s conclusion that, given the bad-faith conduct of Eleanor’s mother, the good-faith effort to comply with the ICWA constituted good cause not to transfer the case.

There is no evidence in this case that the pendency of these proceedings was known by the Potawatomi tribe before October 1987. The ICWA specifically provides that the child’s tribe has the right to intervene at any point in the proceeding:

“In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child’s tribe shall have a right to intervene at any point in the proceeding.” 25 U.S.C. § 1911(c) (1978).

In fact, the Potawatomi tribe intervened and requested the transfer of jurisdiction immediately after it received notice of the proceedings. Neither the ICWA nor any other authority requires denial of transfer to the tribal court based upon nondisclosure by Powless of her tribal identity. The public guardian’s good-faith argument must be rejected.

C

The public guardian next argues that determination of good cause not to transfer jurisdiction necessitates the application of a modified doctrine of forum non conveniens. He cites the BIA guidelines that good cause not to transfer a custody proceeding involving an Indian child may exist if the “evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or witnesses.” 44 Fed. Reg. 67,591 (1978).

However, the cases the public guardian relies upon are factually distinguishable from the instant matter. In In re Bird Head (1983), 213 Neb. 741, 747, 331 N.W.2d 785, 790, the court held transfer was improper because all the acts complained of occurred off the reservation and witnesses testified it would be impossible for them to attend the tribal court. (See also In re J.R.H. & M.J.H. (Iowa 1984), 358 N.W.2d 311, 317.) In In re Adoption of Baby Boy L. (1982), 231 Kan. 199, 643 P.2d 168, the Kansas Supreme Court determined that the boy was outside the ambit of the ICWA because the mother was non-Indian.

In contrast to those cases, this case is clearly subject to the ICWA, and forum non conveniens factors have not been shown. Social workers stated by affidavit that it would be no hardship for them to testify before the tribal court and copies of all DCFS reports have already been transmitted to the tribal court. Since Eleanor now lives in California, it cannot be said that it would be more convenient to conduct hearings in Illinois than in Kansas.

Furthermore, liberal expansion of the forum non conveniens doctrine would preclude transferring jurisdiction to tribal courts except in cases where the child resides on or near a reservation. Acceptance of the public guardian’s argument in this case would be contrary to the congressional findings and goals incorporated into the ICWA.

D

The public guardian next contends that Powless should be estopped from consenting to the transfer because she chose to remain silent for 2xk years, despite ample opportunity to divulge her actual tribal affiliation while judicial proceedings progressed. See In re Pubs, Inc. (7th Cir. 1980), 618 F.2d 432, 438; In re Walton Hotel Co. (7th Cir. 1940), 116 F.2d 110, 112.

There is no evidence, however, that Powless purposely deceived DCFS or the public guardian. Moreover, the ICWA provides no basis to deny Powless the power to exercise her rights. We note another provision of the ICWA which gives parents the absolute right to withdraw their consent to adoption at any time up to the time a final decree of adoption is granted (25 U.S.C. § 1913(c) (1978)), and conclude that the relevant portion of the ICWA (25 U.S.C. §1911(b) (1978)) provides no basis for the imposition of estoppel in this case.

II. CONSTITUTIONAL ISSUES

The public guardian asserts that section 1911(b) of the ICWA is unconstitutional as applied to Eleanor, because: (a) it is violative of the equal protection guarantee of the fourteenth amendment since it involves a suspect class to which no compelling governmental interest is implicated, or it lacks a rational basis; and (b) it is violative of the due process clause of the fourteenth amendment since it grants jurisdiction to a tribal court over a child who has had no contacts with the tribe.

A

When Federal legislation involves a suspect class, that legislation is subject to strict scrutiny and can be upheld only if necessary to promote a compelling interest. (Doe v. Edgar (7th Cir. 1983), 721 F.2d 619, 622.) However, the ICWA does not involve a suspect class. Federal legislation with respect to Indian tribes is not based upon impermissible racial classifications, but derives from the special status of Indians as members of quasi-sovereign tribal entities. (United States v. Antelope (1977), 430 U.S. 641, 646, 51 L. Ed. 2d 701, 707, 97 S. Ct. 1395, 1399; Morton v. Mancari (1974), 417 U.S. 535, 550-55, 41 L. Ed. 2d 290, 301-03, 94 S. Ct. 2474, 2483-85. See also Washington v. Confederated Bands & Tribes of the Yakima Indian Nation (1979), 439 U.S. 463, 500-01, 58 L. Ed. 2d 740, 767-68, 99 S. Ct. 740, 761; Delaware Tribal Business Committee v. Weeks (1977), 430 U.S. 73, 84-85, 51 L. Ed. 2d 173, 183, 97 S. Ct. 911, 919.) Moreover, the commerce clause (U.S. Const., art. I, §8) gives Congress plenary power to regulate Indians on or off a reservation and provides the congressional authority for enactment of the ICWA. H.R. Rep. No. 1386, 95th Cong., 2d Sess. 19, at 15 (1978), reprinted in 1978 U.S. Code Cong. & Admin. News 7530, 7537-38; see United States v. Nice (1916), 241 U.S. 591, 596, 60 L. Ed. 1192, 1194, 36 S. Ct. 696, 697; United States v. Holliday (1866), 70 U.S. (3 Wall.) 407, 418, 18 L. Ed. 182, 186.

Furthermore, when laws which grant special treatment to Indians are rationally related to the fulfillment of Congress’ unique obligation toward Indians, those legislative judgments will not be disturbed. (Morton v. Mancari, 417 U.S. at 555, 41 L. Ed. 2d at 303, 94 S. Ct. at 2485.) The provisions of the ICWA were deemed by Congress to be essential for the protection of Indian culture and to assure the very existence of Indian tribes. Those provisions do not contravene equal protection. Morton v. Mancari, 417 U.S. at 555, 41 L. Ed. 2d at 303, 94 S. Ct. at 2485.

Regarding the public guardian’s contention that the ICWA lacks a rational basis, we conclude that the protection of the integrity of Indian families is a permissible goal that is rationally tied to the fulfillment of Congress’ unique guardianship obligation toward Indians. Morton v. Mancari, 417 U.S. at 555, 41 L. Ed. 2d at 303, 94 S. Ct. at 2485; In re Angus (1982), 60 Or. App. 546, 555, 655 P.2d 208, 213, cert. denied (1983), 464 U.S. 830, 78 L. Ed. 2d 109, 104 S. Ct. 107. See also In re Guardianship of D.L.L. (S.D. 1980), 291 N.W.2d 278; In re Appeal in Pima County Juvenile Action No. S—903 (1981), 130 Ariz. 202, 208, 635 P.2d 187, 193, cert. denied (1982), 445 U.S. 1107, 71 L. Ed. 2d 875, 102 S. Ct. 1644.

B

The public guardian next argues that the assertion of jurisdiction by the Potawatomi tribal court over Eleanor, who has had no contacts with the tribe, violates the due process clause of the fourteenth amendment because Eleanor lacks “minimum contacts” with the tribe. The public guardian asserts that Eleanor has an interest that protects her from the imposition of jurisdiction by a forum with which she has never had any contact. (See Burger King Corp. v. Rudzewicz (1985), 471 U.S. 462, 471-72, 85 L. Ed. 2d 528, 540, 105 S. Ct. 2174, 2181-82; International Shoe Co. v. Washington (1945), 326 U.S. 310, 319, 90 L. Ed. 95, 104, 66 S. Ct. 154, 160.) The “minimum contact” argument, however, is inappropriate in this case.

Because of the commerce clause, Congress may constitutionally legislate even with respect to custody litigation concerning off-reservation Indian children. (H.R. Rep. No. 1386, 95th Cong., 2d Sess. 19, at 15 (1978), reprinted in 1978 U.S. Code Cong. & Admin. News 7530, 7537-38.) The ICWA constitutes a scheme enacted by Congress to ensure that Indian tribal members are protected, regardless of the lack of present tribal contacts. (BIA Guidelines, §C.3 Commentary, 44 Fed. Reg. 67,591 (1978).) Dispositive of the “minimum contacts” contention of the public guardian is the holding of the United States Supreme Court that even without contact with the tribe or reservation since their births, and even though their Indian parents did not want tribal involvement with their children who were never residents of the reservation, the tribal court was the appropriate forum to determine the custody of children of members of the tribe. (Mississippi Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 47-52, 104 L. Ed. 2d 29, 46-48, 1109 S. Ct. 1597, 1608-09.) Consequently, Eleanor’s lack of contact with the Potawatomi tribe does not contravene any of her due process rights.

III. SUBJECT MATTER JURISDICTION ISSUE

In his reply brief, the public guardian asserts, for the first time, that the judgment of the circuit court should be vacated for lack of subject matter jurisdiction. This issue may be raised for the first time on appeal (Dorr-Wood, Ltd. v. Department of Public Health (1981), 99 Ill. App. 3d 170, 173, 425 N.E.2d 499) and is not waived for failure to raise it in the circuit court (People ex rel. Illinois Department of Human Rights v. Arlington Park Race Track Corp. (1984), 122 Ill. App. 3d 517, 521, 461 N.E.2d 505). The public guardian maintains that the Potawatomi tribe is not Eleanor’s tribe for purposes of the ICWA because the Potawatomi tribe lacks any substantive interest protected by the ICWA since Eleanor, as an infant, spent some time on the Winnebago reservation with her father and has, therefore, had more contacts with the Winnebago tribe.

This argument lacks merit. The ICWA defines an Indian child’s tribe as:

“(a) the Indian tribe in which an Indian child is a member or eligible for membership or (b), in the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with whom the Indian child has the more significant contacts.” (25 U.S.C. §§1903(5)(a), (5)(b) (1978).)

The Potawatomi tribe has standing since Eleanor is an enrolled member of that tribe. Since section 1903 uses the disjunctive, the provisions under either (a) or (b) may be applied. Moreover, the Winnebago tribe indicated that it supports the transfer to the Potawatomi tribe.

As pointed out previously, under the ICWA, even in instances where there is a total lack of contact with a child, an Indian tribe has a very real and substantive interest in each child. (See Mississippi Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 104 L. Ed. 2d 29, 109 S. Ct. 1597.) The Potawatomi tribe is Eleanor’s tribe under the ICWA, and therefore transfer to its tribal court is proper.

CONCLUSION

In concluding that there is no good cause not to transfer this case to the Potawatomi tribal court, that the ICWA is not unconstitutional as applied in this case, and that the circuit court possessed subject matter jurisdiction, we are not unmindful of the potentially disruptive effect transfer of this case to the tribal court could have on Eleanor. As stated previously, however, our determinations in this case are related not to placement but to jurisdictional considerations. We note that the first order entered by the Potawatomi tribal court was to have Eleanor remain with her foster parents while appropriate investigations were conducted. That order reflected great sensitivity to an aspect of this case which gives it its uniqueness: that largely because of Eleanor’s mother’s failure to disclose her tribal identity for 21lz years, transfer was unavoidably delayed and that, as a result, significant bonding has occurred between Eleanor and the family with which she has so long resided. We have no reason to believe that the Potawatomi tribal court, given the unique aspects of this case, will not continue to be sensitive to the best interests of Eleanor.

The circuit court’s order is affirmed.

Affirmed.

HARTMAN and SCARIANO, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCARIANO

license: Public Domain

text:
      In re ESTATE OF IRENE CHLEBOS, Deceased (Patrick T. Murphy, Public Guardian of Cook County, Petitioner-Appellant).
    First District (2nd Division)
    No. 1—88—2244
    Opinion filed January 16, 1990.

      Patrick T. Murphy, Public Guardian, of Chicago (Rebecca S. Kolleng, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Patrick T. Murphy, the Public Guardian of Cook County, appeals from the circuit court’s order admitting the deceased’s will to probate. On appeal, Murphy contends that the testimony of the attesting witnesses to the will was insufficient to prove that the deceased was of sound mind and memory at the time that the will was executed. Although the deceased’s estate has failed to file a brief on appeal, we will consider the matter under First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 131-33, 345 N.E.2d 493. However, before we address the merits of the appeal, we will review whether it must be dismissed pursuant to In re Estate of Martino (1979), 72 Ill. App. 3d 867, 869-70, 391 N.E.2d 412.

We have a duty to consider our jurisdiction whether or not the issue was raised by the parties. (Johnson v. Northwestern Memorial Hospital (1979), 74 Ill. App. 3d 695, 697, 393 N.E.2d 712.) Murphy’s brief states that an order admitting a will to probate is appeala-ble under Illinois Supreme Court Rule 304(b)(1) (107 Ill. 2d R. 304(b)(1)). Rule 304(b)(1) provides in part:

“The following judgments and orders are appealable without the finding required for appeals under paragraph (a) of this rule:
(1) A judgment or order entered in the administration of an estate, guardianship, or similar proceeding which finally determines a right or status of a party.” (107 Ill. 2d R. 304(b)(1).)

The Committee Comments to Rule 304(b)(1) state that an order admitting a will to probate is appealable. (Ill. Ann. Stat., ch. 110A, par. 304, Committee Comments, at 14 (Smith-Hurd Supp. 1989).) However, In re Estate of Martino (1979), 72 Ill. App. 3d 867, 869-70, 391 N.E.2d 412, held that an order admitting a will to probate is not ap-pealable despite the Committee Comments because such an order is an interlocutory order rather than a final one. The court observed that an order admitting a will to probate neither terminates the litigation on the merits nor settles the rights of the parties, and that the Probate Act of 1975 prescribes a procedure for contesting a will. (See Ill. Rev. Stat. 1987, ch. lNP/a, par. 8 — 1.) However, we agree with the contrary result reached in In re Estate of Lynch (1982), 103 Ill. App. 3d 506, 508-09, 431 N.E.2d 734, which declined to follow Martino and instead held that an order admitting a will to probate is appealable under Rule 304(b)(1). Given that an admission hearing under section 6 — 21 of the Probate Act (Ill. Rev. Stat. 1987, ch. 110½, par. 6—21) does not toll the time for filing a will contest under section 8—1 (Ill. Rev. Stat. 1987, ch. 110½, par. 8—1), the court in Lynch reasoned that a party opposing a will who appeals from an order admitting the will to probate would have no remedy if no will contest were filed or if the six-month deadline for filing one had expired. The record in the present case does not disclose whether a will contest has been filed. Nevertheless, we believe that Lynch expresses the better view, and we therefore decline to dismiss the appeal and instead turn our attention to the merits. See also In re Estate of Thomas (1972), 6 Ill. App. 3d 70, 284 N.E.2d 513 (which reviewed an appeal from an order admitting a will to probate).

Irene A. Chlebos (hereinafter referred to as deceased) died on May 14, 1987. Her son, Robert J. Pilarski (hereinafter referred to as Pilarski), petitioned the circuit court of Cook County for admission of the will to probate, and on November 23, 1987, the court granted his petition. On December 29, 1987, Murphy, acting as guardian of the estate of deceased’s daughter, Bonita J. Pilarski, who is described in Murphy’s brief as mentally disabled, filed a petition requesting formal proof of the will, and a hearing was subsequently held.

At the hearing, the two subscribing witnesses to the will, Kenneth A. Burnett and Elwyn L. Johnson, testified that they witnessed deceased’s signing of the will at Loyola Hospital on January 5, 1987. They testified that they signed in the presence of deceased and each other, and that she signed in their presence. The record discloses that the -will consists of two pages. The dispositive paragraph appears to bequeath $100 to Bonita “as she is being adequately taken care of for her lifetime,” and the remainder of the estate (estimated at $90,000) to Pilarski. The attestation clause signed by Burnett and Johnson states:

“We, the undersigned, saw Irene A. Chlebos, in our presence, sign this instrument at its end; she then declared it to be her Will and requested us to act as witnesses to it; we believed her to be of sound mind and memory and not under duress or constraint of any kind; and then we, in her presence and in the presence of each other, signed our names as attesting witnesses; all of which was done on the date of this instrument.”

Kenneth Burnett testified that Pilarski, a co-worker, asked him to witness the execution of the will, which Burnett believed had been drafted by Pilarski. Burnett had never met deceased prior to witnessing her will, but he had a brief conversation with her about the will before he witnessed it. He did not remember the exact conversation, but he believed that deceased told him that he was going to witness the will.

When initially asked whether he believed that deceased was of sound and disposing mind and memory, Burnett responded, “I believe you know I am not a psychiatrist; yes. We held a conversation.” When twice asked the same question again, he answered, “I believe so, yes,” and “I believe she was.” Burnett testified that he believed that deceased was of sound mind because she was “awake” and “coherent enough to sign her name.” When questioned about deceased’s mental condition, Burnett responded, “I am not a medical doctor or psychologist.” Burnett testified that deceased looked at the will for “a long time” but he did not know whether she was reading it. He believed that Pilarski discussed the will with deceased, but the only portion of the conversation that he remembered was when Pilarski told deceased, “[S]ign here.” Nobody physically moved deceased’s hand when she signed the will. Burnett testified that he could not say that deceased was not of sound mind because he had a conversation with her, but that he did not know whether she was of sound memory.

When asked whether deceased was under duress, Burnett responded that he did not know, that he must have believed when he witnessed the will that she was under no duress, that she was a “sick lady,” that he could not “give a yes or no answer,” that “[s]he may have been, she may not have been,” and that “[i]t is possible that she may have been under duress.” He testified further that he had not learned anything that would lead him to believe that deceased was not of sound mind or memory or that she was under duress.

Elwyn Johnson testified that Pilarski asked him to witness the will while Johnson was visiting his (Johnson’s) wife, who was deceased’s roommate in the hospital. Johnson testified that he believed that deceased was of sound mind and memory and that she was not under duress or any other constraint. However, he never had any conversation with deceased, she never said anything in his presence, and he did not hear any conversation between deceased and anyone else at the time that the will was signed. He did not discuss the will with her, and nobody in his presence read it to her. She was not physically assisted in signing it, she was not connected to hospital equipment or tubes, and “she acted normally].”

Paula Dwyer, a staff attorney with the public guardian’s office, testified in rebuttal that Kenneth Burnett had told her privately prior to the hearing that deceased did not know what she was doing when she signed the will, that deceased was in “very bad shape” and was about to undergo open heart surgery, that he did not want to witness the will, and that Pilarski and Pilarski’s wife pressured him to be a witness. Dwyer testified further that Burnett indicated that Pilarski and Pilarski’s wife could cause trouble for him in connection with certain legal proceedings which were pending and certain political ambitions harbored by Burnett.

At the conclusion of the hearing, the will was admitted to probate. The trial court observed that the testimony was sufficient to fulfill the statutory requirements. Murphy has appealed, contending that the testimony of Burnett and Johnson was insufficient proof that deceased was of sound mind and memory when she signed the will.

Admission of a will to probate is governed by section 6 — 4 of the Probate Act, which provides in relevant part:

“When each of 2 attesting witnesses to a will states that *** (3) he believed the testator to be of sound mind and memory at the time of signing or acknowledging the will, the execution of the will is sufficiently proved to admit it to probate, unless there is proof of fraud, forgery, compulsion or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will.” (Ill. Rev. Stat. 1987, ch. llOVa, par. 6 — 4.)

The statutory requirements of section 6 — 4 are mandatory, and “it is indispensable that these provisions be complied with in order to make a valid will.” (In re Estate of Carroll (1989), 192 Ill. App. 3d 202, 207.) However, the court will indulge every presumption in favor of the execution and attestation of a will which apparently has been executed in due form. (See In re Estate of Carroll, 192 Ill. App. 3d at 207; In re Estate of Thomas (1972), 6 Ill. App. 3d 70, 72, 284 N.E.2d 513.) If the document contains an attestation clause which discloses that all of the statutory requirements have been met, and the signatures admittedly are genuine, then a prima facie case exists favoring due execution of the will, which can be rebutted by positive testimony of the subscribing witnesses that a statutory requirement was not satisfied. (In re Estate of Thomas, 6 Ill. App. 3d at 72.) The attestation clause is given the benefit of reasonable presumptions even if the witness fails to remember the surrounding events. (In re Estate of Carroll, 192 Ill. App. 3d at 207.) Therefore, if it is merely doubtful whether the requirements have been met, the presumption arising from the attestation clause is not rebutted. (In re Estate of Carroll, 192 Ill. App. 3d at 207; In re Estate of Thomas, 6 Ill. App. 3d at 72-73.) Moreover, where the testimony of an attesting witness is not affirmative and is contradictory, vague and lacking in conviction, then the trial court justifiably may reject it in favor of the attestation clause. (In re Estate of Thomas, 6 Ill. App. 3d at 73.) Execution of a will “may be sufficiently proved where one attesting witness testified positively to the requisites of execution and the other witness does not recollect or denies compliance with the statutory requisites.” (In re Estate of Koss (1967), 84 Ill. App. 2d 59, 70, 228 N.E.2d 510; see also In re Estate of Krausman (1971), 131 Ill. App. 2d 514, 517, 268 N.E.2d 505; In re Estate of Hart (1967), 79 Ill. App. 2d 134, 144-45, 223 N.E.2d 466.) The trial court’s decision will be reversed on appeal only if it contravened the manifest weight of the evidence. In re Estate of Koss, 84 Ill. App. 2d at 71; see also In re Estate of Carroll, 192 Ill. App. 3d at 208.

Turning to the present case, we believe that there was insufficient evidence to overcome the presumption of due execution of the will. Johnson testified that he believed that deceased was of sound mind and memory. Burnett testified that he had a brief conversation with deceased, who specifically told him that he would be witnessing the will. Based upon that conversation, Burnett believed that deceased was of sound mind. His equivocal testimony concerning her memory and whether or not she was under duress merely expressed doubt and was lacking in conviction. As such, it was insufficient to rebut the presumption to be accorded to the attestation clause.

Although we have some concern about Dwyer’s impeachment testimony, there was no proof of “fraud, forgery, compulsion or other improper conduct” which would have precluded probate of the will.

Our conclusion that the trial court’s decision admitting the will to probate did not contravene the manifest weight of the evidence is not inconsistent with the cases cited in Murphy’s brief. For example, in In re Estate of Jacobson (1979), 75 Ill. App. 3d 102, 107, 393 N.E.2d 1069, the court denied admission of a will to probate because the evidence regarding the soundness of the deceased’s mind and memory was “patently insufficient.” Two of the attesting witnesses unambiguously testified that the deceased was incompetent and that they signed the will merely to be cooperative. In the case at bar, we do not believe that the evidence of the soundness of deceased’s mind can be characterized as patently insufficient, and we therefore decline to disturb the trial court’s order admitting the will to probate.

The judgment of the circuit court is affirmed.

Judgment affirmed.

HARTMAN and BILANDIC, JJ., concur.


author: JUSTICE HARTMAN

text:
    B-G ASSOCIATES, INC., Plaintiff-Appellant, v. FAUSTINO GIRON et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—89—0345
    Opinion filed January 16, 1990.

      Jody Ann Lowenthal, of Chicago, for appellant.
    No brief filed for appellees.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff B-G Associates, Inc., an Illinois corporation which provides services in heating, air conditioning, and ventilation, brought an action to recover damages for an alleged breach of contract against Faustino and Maria Giron (jointly, defendants). A default judgment entered for plaintiff and against defendants subsequently was vacated by the circuit court. From that order, plaintiff appeals and questions whether the circuit court had jurisdiction to vacate the default judgment. Defendants, the appellees in this appeal, have not filed a brief in response; nevertheless, this court elects to consider the appeal on its merits. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

According to the first amended complaint, defendant Maria Giron (Maria) is the owner of a business known as Treo’s Pizza, which is not a corporation; defendant Faustino Giron (Faustino) is the manager of and doing business as Treo’s Pizza, and is an authorized agent of Maria; Faustino requested and was provided goods and services from plaintiff in the amount of $4,332.21; and, despite Faustino’s repeated promises to pay, no payments were made, leaving an outstanding balance of $4,332.21.

The procedural history of the case is complex and must be set out in some detail. On December 15, 1987, the circuit court (1) found Maria in default, having failed to appear, answer, or otherwise plead; (2) entered judgment for plaintiff and against Maria for $4,332.21 plus costs; and (3) dismissed Faustino without prejudice, based on his answer to plaintiff’s interrogatory that Maria was the “100%” owner of Treo’s Pizza. Thereafter, the circuit court, on February 26, 1988, vacated the default judgment entered December 15, 1987, against Maria, and granted plaintiff leave to add Faustino as an additional party-defendant.

Plaintiff, on May 3, 1988, filed a motion pursuant to section 2— 611 (Ill. Rev. Stat. 1987, ch. 110, par. 2-611) of the Code of Civil Procedure (Code), seeking sanctions against defendants. Plaintiff’s motion alleged certain interrogatories regarding ownership of the restaurant were answered untruthfully by defendants. On July 5, 1988, plaintiff filed a second section 2 — 611 motion for sanctions against defendants and their attorney, J. William Stefan. This second request reiterated the grounds raised in the May 3 motion, and asserted the following additional reasons: defendants’ answer to the amended complaint subsequently was contradicted by Stefan and defendants; spurious defenses were raised; and Stefan initiated various pretrial procedures, including an unwarranted motion for a protective order, with the sole intent to delay and hinder the case. Plaintiff also suggested that Stefan made no independent investigation of the facts he presented and verified in defendants’ answers to both the complaint and amended complaint.

On August 16, 1988, the parties entered into an “agreed order,” not signed by any party or attorney, which reflected the following: on or before November 16, 1988, Maria and Faustino agreed to pay plaintiff a total of $2,500, payable in three equal monthly installments; upon payment of the full $2,500, the cause and all pending motions would be dismissed; and the matter was set for status on December 6, 1988. Defendants at no time questioned the status of this order as “agreed.”

On September 26, 1988, plaintiff filed a motion for judgment, asserting that defendants had not made any payments as of that date in violation of the August 16 order. Plaintiff’s attorney certified that she served notice of the motion by mailing a copy to defendants’ attorney through regular mail on September 26. The hearing on plaintiff’s motion for judgment was held October 3, 1988, but neither defendants nor their attorney appeared. The circuit court ordered as follows: (1) the order of August 16, 1988, was vacated; (2) judgment was entered for plaintiff against both defendants in the amount of $4,332.21 plus costs; and (3) plaintiff’s pending section 2 — 611 motions were set for hearing to be held December 6,1988.

Eighteen days later, on October 21, 1988, pursuant to section 2— 1301 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1301), defendants brought a motion to vacate the October 3, 1988, default judgment, asserting that they were naturalized citizens of Mexican ancestry “and did not comprehend that payments were required on certain dates”; further, they were “ready, willing and able” to pay the $2,500 previously agreed to, in full by cashier’s or certified check. The matter was set for hearing on October 31,1988.

At the October 31 hearing, however, defendants’ attorney again failed to appear. As a result, defendants’ section 2 — 1301 motion to vacate was stricken with prejudice.

On October 31, 1988, defendants filed another section 2 — 1301 motion to vacate the default judgment, and set the matter for hearing on that same day. Thereafter, on November 3, 1988, according to a “revised” notice of motion, defendants filed yet another motion to vacate the default judgment, and set the matter for hearing on November 7, 1988. Defendants’ second section 2 — 1301 motion, filed on November 7, asserted exactly the same grounds for vacatur of the default as did their previous section 2 — 1301 motion which was stricken with prejudice. The revised notice of motion filed November 3 suggests plaintiff was served notice by regular mail; however, the proof of service by mail was neither signed by the certifying attorney nor notarized. Plaintiff denies having been provided with notice of the November 7 hearing.

In any event, on November 7, neither plaintiff nor its attorney was present in court. The circuit court then vacated the default judgment entered against defendants on October 3, “based upon payment of the sum of $2,500 by defendant’s [sic] to plaintiff.” Further, the court dismissed with prejudice plaintiff’s cause of action “and all pending motions.” According to plaintiff, no copy of this November 7 order was mailed or given to it or its attorney. The docket sheet further reflects that, on November 7, defendants left a check for $2,500 with the court clerk.

Plaintiff apparently did not learn of the November 7 proceedings until it appeared in court on December 6, 1988, for hearing on its section 2 — 611 motions (as scheduled in the October 3, 1988, order). In an order, the court acknowledged that no funds were tendered to plaintiff in payment of the October 3, 1988, judgment, and further, that no motion was pending on November 7, the “alleged motion having been stricken with prejudice”; it then set plaintiffs two section 2 — 611 motions for hearing on December 19, 1988. In response, defendants filed a motion to strike or dismiss the section 2 — 611 motions as untimely, asserting that the November 7, 1988, order dismissed with prejudice plaintiffs cause of action and all pending motions, and had become final since not vacated within 30 days.

After continuances, the matter was heard on January 4, 1989. The circuit court therein denied plaintiffs section 2 — 611 motions, and made a finding pursuant to Illinois Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). According to the docket sheet, however, a “check” was “given in open court” on that date. The order dated January 4, 1989, makes no mention of any acceptance or rejection by plaintiff of the check, nor does the court indicate whether it considered plaintiffs entire cause dismissed or some portion thereof still pending. Plaintiff appealed on February 3, 1989, and asks that the November 7, 1988, order vacating the judgment of October 3, 1988, be declared void for lack of jurisdiction of the circuit court.

In deciphering the tangled procedural posture of this case, several principles are germane. According to section 2 — 1301(e) of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1301(e)):

“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.”

This section (formerly, Ill. Rev. Stat. 1979, ch. 110, par. 50(5)) contemplates only one such post-trial motion attacking a final order or judgment. (Drafz v. Parke, Davis & Co. (1980), 80 Ill. App. 3d 540, 542, 400 N.E.2d 515, aff’d sub nom. Sears v. Sears (1981), 85 Ill. 2d 253, 422 N.E.2d 610; Rose v. Centralia Township High School District No. 200 (1978), 59 Ill. App. 3d 606, 607, 375 N.E.2d 1039.) The circuit courts, therefore, have no authority to hear successive post-judgment motions, even where each is filed within 30 days after denial of the previous motion (Dulin, Thienpont, Potthast & Snyder, Ltd. v. Packaging Personified, Inc. (1980), 89 Ill. App. 3d 647, 649, 411 N.E.2d 1173; Drafz, 80 Ill. App. 3d at 542; see also Deckard v. Joiner (1970), 44 Ill. 2d 412, 418, 255 N.E.2d 900), or where both are filed within 30 days of the court’s final judgment, but the second only after the first post-judgment motion was denied. See Benet Realty Corp. v. Lisle Savings & Loan Association (1988), 175 Ill. App. 3d 227, 529 N.E.2d 718.

The rationale underlying these decisions was expressed by our supreme court in Sears v. Sears (1981), 85 Ill. 2d 253, 259, 422 N.E.2d 610:

“There is no provision in the [Code] or the supreme court rules which permits a losing litigant to return to the trial court indefinitely, hoping for a change of heart or a more sympathetic judge. Permitting successive post-judgment motions would tend to prolong the life of a lawsuit — at a time when the efficient administration of justice demands a reduction in the number of cases pending in trial courts — and would lend itself to harassment. There must be finality, a time when the case in the trial court is really over and the loser must appeal or give up. Successive post-judgment motions interfere with that policy. And justice is not served by permitting the losing party to string out his attack on a judgment over a period of months, one argument at a time, or to make the first motion a rehearsal for the real thing the next month.”

In the instant case, a settlement between the parties was reflected in the August 16, 1988, order. At that point, the circuit court retained jurisdiction over the matter, as it did not dismiss the action as of that date and further set the case for a status hearing four months later. Upon the failure of an installment payment from defendants as provided by the order, the court, on October 3, pursuant to plaintiff’s motion, entered judgment for plaintiff in the full amount of damages alleged in its amended complaint. This October 3 judgment was by default; defendants nor their attorney were present, despite notice. Further, plaintiff’s two section 2 — 611 motions, which remained pending, were set for hearing.

On October 21, 18 days after the judgment entered against them, defendants made a timely motion under section 2 — 1301 to vacate that default. Defendants, however, failed to appear at the hearing on this motion to vacate, which was stricken with prejudice on October 31.

Seven days later, defendants filed a second 2 — 1301 motion to vacate, asserting the identical grounds set forth in their previous motion. Except for the pendency of plaintiff’s section 2 — 611 claims, this filing by defendants clearly would have constituted an improper successive post-judgment motion which the circuit court would have had no authority to hear. Drafz, 80 Ill. App. 3d 540.

Where a section 2 — 611 claim is timely filed, however, “no appeal may be taken from the underlying judgment absent a Rule 304(a) finding until the section 2 — 611 claim is resolved” (Palmisano v. Connell (1989), 179 Ill. App. 3d 1089, 1095, 534 N.E.2d 1243); section 2-611 claims are now considered part of the civil action giving rise to such claims (Kousins v. Anderson (1989), 180 Ill. App. 3d 827, 829, 536 N.E.2d 487). Section 2 — 611 provides, in part (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611):

“All proceedings under this Section shall be within, and part of the civil action in which the pleading, motion or other paper *** has been filed, and no violation or alleged violation of this Section shall give rise to a separate cause of action, or another cause of action within the civil action in question, by, on behalf of or against any party to the civil action in question, and by, on behalf of or against any attorney *** involved in the civil action in question.”

(See also new Illinois Supreme Court Rule 137, effective August 1, 1989.) Due to the pendency of plaintiff’s section 2 — 611 motions, therefore, this matter did not become appealable until those motions were denied on January 4, 1989.

Under section 2 — 611 (and new Supreme Court Rule 137), the motions for sanctions are part of the same proceeding as the underlying cause of action; does this mean that an underlying judgment on the merits cannot be deemed final until all pending section 2 — 611 claims are adjudicated? Further, would the underlying judgment on the merits be subject to successive motions to vacate under section 2 — 1301 as long as the section 2 — 611 claims remained pending? Clearly, section 2 — 1301 contemplates only one post-trial motion attacking a final judgment filed within 30 days after entry thereof; would the same concerns attach where, as here, a judgment on the merits is made, but due to the pendency of section 2 — 611 claims, it is not considered appealable?

We believe that the interests of finality and of certainty and ease of administration, as expressed by our supreme court in Sears, are applicable to the narrow facts of this case. Although the section 2 — 611 claims were part of the pending cause of action, the circuit court’s consideration of the second, successive section 2 — 1301 motion to vacate the judgment on the underlying action must be deemed improper. Any other conclusion would allow a losing party to return to the court indefinitely to attack the underlying judgment via section 2 — 1301, as long as the section 2 — 611 motions remained pending. Such a potential result would lend itself to harassment and is untenable.

We hold that on October 31, 1988, when defendants’ first post-judgment motion to vacate was stricken with prejudice, the October 3, 1988, default judgment for plaintiff became final, albeit not ap-pealable in the absence of a Rule 304(a) finding. The circuit court thereafter was without jurisdiction to enter subsequent orders, such as that of November 7, 1988, relating to the merits of the underlying cause of action.

We also refuse to construe the second section 2 — 1301 motion to vacate as a section 2 — 1401 petition, which provides a procedure for relief from a final order or judgment after 30 days from the entry thereof. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401.) Because a section 2 — 1401 petition to vacate institutes a new matter, and is not a mere continuation of the original proceeding (Manning v. Meier (1983), 114 Ill. App. 3d 835, 840, 449 N.E.2d 560), it is not considered a “successive” post-trial motion over which the circuit court would lack jurisdiction. (See Drafz, 80 Ill. App. 3d at 543-44; see also Deckard v. Joiner, 44 Ill. 2d at 418-19.) Here, the second post-judgment motion was made on November 7, 35 days after entry of judgment for plaintiff on October 3; only if the requirements of section 2 — 1401 were satisfied by the second motion would the circuit court have had jurisdiction to reconsider its October 3 judgment.

Section 2 — 1401, however, contemplates the introduction of new or additional information that was not nor could have been included in the first motion. (Deckard, 44 Ill. 2d at 418-19; Drafz, 80 Ill. App. 3d at 543-44.) Here the allegations in defendants’ second post-judgment motion simply duplicated verbatim those set forth in the first. The second post-judgment motion therefore did not comply with the requirements of section 2 — 1401, and defendants may not proceed thereunder.

Based on the foregoing, we conclude the circuit court lacked jurisdiction to consider defendants’ second, successive post-judgment motion to vacate, despite the pendency of plaintiff’s section 2 — 611 motions. As a result, the November 7, 1988, order must be reversed; the order of January 4, 1989, denying plaintiffs two section 2 — 611 motions, is affirmed.

Affirmed in part; reversed in part and remanded with directions to reinstate plaintiffs judgment of $4,332.21 plus costs.

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

      According to plaintiff, it was not until the January 4, 1989, hearing that defense counsel first tendered to plaintiff the November 7, 1988, order and a check in the amount of $2,500. Apparently, the copy of the November 7 order and $2,500 check given to the clerk of the court on the 7th had been placed in an envelope and kept in a safe in the clerk’s office, but never presented to plaintiff.


author: PRESIDING JUSTICE DiVITO

text:
    CHARLES S. LEONG, d/b/a Leong’s Restaurant, Plaintiff-Appellant, v. THE VILLAGE OF SCHAUMBURG et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—89—0721
    Opinion filed January 16, 1990.

      Kamenear, Kadison & Anderson, of Chicago (Steven J. Kadison and Thomas M. Craig, of counsel), for appellant.
    Jack M. Siegel, of Chicago, for appellees.
   PRESIDING JUSTICE DiVITO

delivered the opinion of the court:

In this appeal of the order of the circuit court pursuant to administrative review, plaintiff Charles S. Leong, d/b/a Leong’s Restaurant, challenges the revocation of his liquor license. The issues raised are: (1) whether the decision of the local liquor commissioner was against the manifest weight of the evidence or contrary to law; (2) whether the finding that plaintiff had been convicted of a crime opposed to decency and morality was contrary to law; (3) whether the Village of Schaumburg (the Village) waived its right to revoke plaintiffs 1988 liquor license; and (4) whether plaintiff received a full, fair, and impartial hearing.

Since 1970, plaintiff has held a liquor license, issued by the Village, for the sale of alcoholic beverages at Leong’s Restaurant. On March 19, 1982, a search warrant was executed in plaintiff’s restaurant by the Criminal Investigation Division of the Internal Revenue Service and evidence of gambling was recovered. In April 1982, Kenneth Alley, then a lieutenant in charge of criminal investigation for the Schaumburg police department, warned plaintiff that he had crossed the line in dealing with organized crime and that he had to cease any gambling operations or jeopardize his license and his livelihood. The undisputed evidence, however, was that from 1982 until mid-1986, plaintiff permitted his restaurant to be used for gambling.

On February 26, 1987, a Federal grand jury indictment was returned against plaintiff. On July 2, 1987, he pleaded guilty to the felony offense of participating in the operation of an illegal gambling business which had gross revenues of at least $2,000 on any single day and continued in operation for more than 30 days, in violation of 18 U.S.C. section 1955 (1988). He also pleaded guilty to the misdemeanor charge of failing to pay a special occupational tax, in violation of 26 U.S.C. section 7203 (1982). On August 25, 1987, the United States District Court placed plaintiff on probation for five years and imposed a $5,000 fine for the latter offense. The sentence on the felony charge was suspended. Plaintiff paid the fine and has complied with the conditions of probation.

In December 1987, after the Village provided plaintiff a liquor license renewal form which was duly signed and returned with the appropriate fee, plaintiff was issued a liquor license for calendar year 1988.

On May 25, 1988, A1 Larson, the Village president and local liquor commissioner (the commissioner), advised plaintiff by letter that, pursuant to State laws (see Ill. Rev. Stat. 1987, ch. 43, pars. 120(4), (11)), his liquor license for 1988 was null and void. After police officers physically removed the liquor license from his premises, plaintiff obtained a temporary restraining order enjoining the Village and the commissioner from revoking his liquor license. On June 21, 1988, a permanent injunction, which enjoined the revocation of plaintiff’s license without a hearing, was issued.

On June 22, 1988, the commissioner issued a notice that a hearing would be held on June 30, 1988. The notice informed plaintiff that he was not eligible for a liquor license under section 120(4) of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1987, ch. 43, par. 120(4)) and that he was disqualified from holding a liquor license in the Village under the Village code. Village of Schaumburg, Ill., Municipal Code §§3— 24(b), (f), (g), (h).

A public hearing was held on June 30, July 7 and July 11, 1988, during which the Village presented evidence of the 1982 search, the conversation between plaintiff and Lt. Alley, and the gambling convictions. Plaintiff testified in his own behalf and presented 18 character witnesses, who testified concerning his reputation and rehabilitation. Additionally, plaintiff introduced a petition containing 301 signatures attesting to his good reputation in the community and to the belief that he was an asset in the Village.

On July 21, 1988, the commissioner revoked plaintiffs liquor license, finding: that plaintiff had been convicted of a felony and had not been sufficiently rehabilitated to warrant the public trust (Ill. Rev. Stat. 1987, ch. 43, par. 120(4)); that plaintiff was not of good character and reputation in the community in which he resided (Village of Schaumburg, Ill., Municipal Code §3 — 24(b)); and that plaintiff had been convicted of a crime opposed to morality (Village of Schaum-burg, Ill., Municipal Code §3 — 24(f)). The remaining charges were not proved. On November 3, 1988, the Illinois Liquor Control Commission affirmed the revocation and found that the commissioner’s order was supported by the findings and that the findings were supported by substantial evidence. A subsequent petition for rehearing was denied.

Plaintiff filed a complaint for administrative review in the circuit court of Cook County. On March 14, 1989, the court affirmed the decision of the commissioner and the State Commission. Plaintiff appeals that decision.

I

Plaintiff contends that the decision of the commissioner was against the manifest weight of the evidence and contrary to law because the commissioner’s findings of fact were not supported by the evidence. In support of his contention, plaintiff argues that: (a) the commissioner failed to conduct an investigation of plaintiff’s rehabilitation pursuant to the mandate of Illinois law; (b) the finding that plaintiff was not sufficiently rehabilitated to warrant the public trust was arbitrary, an abuse of discretion, and against the manifest weight of the evidence; and (c) the finding that plaintiff was not of good character and of good reputation in his community was arbitrary, an abuse of discretion, and against the manifest weight of the evidence.

In an administrative review proceeding, the circuit court and the appellate court are limited to a consideration of the record to determine whether the findings and orders of the commissioner are against the manifest weight of the evidence, and whether the commissioner acted arbitrarily and without cause or in clear abuse of his discretion. (Spiros Lounge, Inc. v. Illinois Liquor Control Comm’n (1981), 98 Ill. App. 3d 280, 284, 423 N.E.2d 1366.) The findings and conclusions of the administrative agency on questions of fact are accepted as prima facie true and correct (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110), and courts have generally held that it is not the function of either the circuit court or the appellate court to reweigh the evidence or assess the credibility of the witnesses. Murdy v. Edgar (1984), 103 Ill. 2d 384, 469 N.E.2d 1085; Crazy Horse, Inc. v. Byrne (1981), 97 Ill. App. 3d 434, 422 N.E.2d 1074.

In order to find that an agency’s findings are contrary to the manifest weight of the evidence, the reviewing court must determine that an opposite conclusion was clearly evident from the record. (Spiros Lounge, Inc. v. Illinois Liquor Control Comm’n (1981), 98 Ill. App. 3d 280, 284, 423 N.E.2d 1366.) If there is any evidence in the record that supports an administrative agency’s decision, that decision is not contrary to the manifest weight of the evidence and must be sustained on judicial review. (Lipsey v. Human Rights Comm’n (1987), 157 Ill. App. 3d 1054, 510 N.E.2d 1226; Fagiano v. Police Board (1984), 123 Ill. App. 3d 963, 974, 463 N.E.2d 845.) The court, however, is not relieved of its duty to examine the evidence in an impartial manner and to set aside an order unsupported in fact. Dugan’s Bistro, Inc. v. Daley (1977), 56 Ill. App. 3d 463, 467, 371 N.E.2d 1116.

Under the Liquor Control Act (Ill. Rev. Stat. 1987, ch. 43, par. 93.9 et seq.), local commissioners have considerable discretion in revoking liquor licenses, if good cause is shown. (Spiros Lounge, Inc. v. Illinois Liquor Control Comm’n (1981), 98 Ill. App. 3d 280, 284, 423 N.E.2d 1366; Askew v. Daley (1978), 62 Ill. App. 3d 370, 379 N.E.2d 75.) A violation of any statute, ordinance, or regulation fairly related to the control of liquor, upon liquor-licensed premises, generally constitutes cause for revocation of a license. (Spiros Lounge, Inc. v. Illinois Liquor Control Comm’n (1981), 98 Ill. App. 3d 280, 284, 423 N.E.2d 1366; Nappi v. License Appeal Comm’n (1977), 50 Ill. App. 3d 329, 330, 365 N.E.2d 612.) In this case, although plaintiff was found to have violated one statute and two ordinances, any one violation would constitute cause to revoke his liquor license.

A

Plaintiff argues that the commissioner failed to conduct an investigation, as mandated by Illinois law, regarding plaintiff’s rehabilitation. (Ill. Rev. Stat. 1987, ch. 43, par. 120(4).) The Village maintains that an adequate investigation was made by the commissioner. We agree.

The Liquor Control Act provides that a person is ineligible for a liquor license when

“[he] has been convicted of a felony under any Federal or State law, if the Commission determines, after investigation, that such person has not been sufficiently rehabilitated to warrant the public trust.” (Ill. Rev. Stat. 1987, ch. 43, par. 120 (4).)

That language places an affirmative duty on the local commission to conduct an investigation concerning rehabilitation. (Ryan v. Verbic (1981), 97 Ill. App. 3d 739, 742, 423 N.E.2d 534.) When the period for rehabilitation between the conviction and the hearing is brief, however, the investigatory burden imposed by the statute may be satisfied by allowing the plaintiff to present evidence concerning rehabilitation at the hearing. Ryan v. Verbic (1981), 97 Ill. App. 3d 739, 742, 423 N.E.2d 534.

In this case, the commissioner conducted an investigation regarding the extent of plaintiff’s rehabilitation by examining police records and consulting with police officers and legal counsel. Because of the short period of time between plaintiff’s felony conviction and the administrative hearing, there was no need for an extensive investigation for signs of rehabilitation. At the hearing, held- only 10 months following plaintiff’s conviction, plaintiff was afforded an opportunity to present evidence concerning his rehabilitation. We conclude that the commissioner met his investigatory burden when he conducted an investigation and plaintiff was allowed to present evidence of his rehabilitation at the hearing. Ill. Rev. Stat. 1987, ch. 43, par. 120(4); Ryan v. Verbic (1981), 97 Ill. App. 3d 739, 423 N.E.2d 534.

B

Plaintiff next contends that the Village improperly shifted the burden of proof of rehabilitation to him and that the commissioner’s finding that he was not sufficiently rehabilitated to warrant the public trust was arbitrary, an abuse of discretion, and against the manifest weight of the evidence. We disagree.

Contrary to plaintiff’s assertion that the Village erroneously shifted the burden of proof of rehabilitation to him, the Village presented substantial evidence from which the commissioner could have concluded that plaintiff was not rehabilitated.

The record shows that the commissioner considered evidence that plaintiff pleaded guilty to the Federal charges and had thus far complied with his probation. Witnesses who testified on behalf of plaintiff stated that plaintiff was rehabilitated because he was sorry for what he did. When asked to describe actions of plaintiff which demonstrated rehabilitation, many witnesses testified that his actions, characterized as “good,” had not changed following his conviction. It was reasonable for the commissioner to conclude that this testimony failed to show rehabilitation.

Furthermore, although the evidence showed that plaintiff ceased his gambling involvement in 1986, many months before his indictment, the evidence also showed that he continued to engage in gambling on the licensed premises for four years following the search in 1982 and after he had been warned that the operation would endanger his liquor license. Additionally, it was not unreasonable for the commissioner to conclude that 10 months served on a five-year probation sentence was an inadequate time for plaintiff to demonstrate sufficient rehabilitation to warrant the public trust. That the violation occurred on the licensed premises was also a proper consideration. (Ryan v. Verbic (1981), 97 Ill. App. 3d 739, 423 N.E.2d 534; Nappi v. License Appeal Comm’n (1977), 50 Ill. App. 3d 329, 330, 365 N.E.2d 612.) It was, therefore, not arbitrary nor an abuse of discretion nor against the manifest weight of the evidence for the commissioner to conclude, from all the facts and circumstances, that, at the time of the hearing, plaintiff had not yet been rehabilitated enough to warrant the public trust. Spiros Lounge, Inc. v. Illinois Liquor Control Comm’n (1981), 98 Ill. App. 3d 280, 284, 423 N.E.2d 1366; Ryan v. Verbic (1981), 97 Ill. App. 3d 739, 743, 423 N.E.2d 534.

C

Plaintiff contends that the finding by the commissioner that he was not of good character and was not of good reputation in his community was arbitrary, an abuse of discretion, and unsupported by substantial evidence in the record. We agree that the Village failed to establish that plaintiff did not have a good reputation.

The Village was required to prove by substantial evidence that plaintiff lacked both good character and good reputation in the community (Village of Schaumburg, Ill., Municipal Code §3 — 24(b)). Although the commissioner could consider all the evidence and properly conclude that, for reasons already discussed, plaintiff did not have good character, he could not then have assumed that, therefore, plaintiff did not have a good reputation in the community. No evidence was introduced by the Village from which the commissioner could have found that plaintiff did not have a good reputation. In fact, plaintiff presented many reputation witnesses and the record shows that plaintiff had a good reputation in the community. Therefore, the commissioner’s finding that plaintiff did not have a good reputation in the community was against the manifest weight of the evidence. Dugan’s Bistro, Inc. v. Daley (1978), 56 Ill. App. 3d 463, 467, 371 N.E.2d 1116.

II

Plaintiff argues that the commissioner’s finding that plaintiff had been convicted of a crime opposed to decency and morality was contrary to law. He contends that illegal gambling is not a crime involving pandering or other sexual violations and, therefore, is not a violation of the statute. The Village maintains that violation of Federal gambling laws was a conviction of a crime or misdemeanor opposed to morality.

Plaintiff urges this court to adopt a limited definition of crimes opposed to decency and morality. He asserts that because the liquor control statute in question refers to “pandering or other crime or misdemeanor opposed to decency and morality” (Ill. Rev. Stat. 1987, ch. 43, par. 120(6)), the specific use of the crime of pandering in the liquor control statute is to illustrate and limit the type of crimes that the Illinois General Assembly intended to render a person ineligible for a liquor license. He maintains, under the ejusdem generis rule of statutory construction, “where general words follow the enumeration of a particular class of thing, the general words which follow should be construed as applicable only to things of the same general nature or class as those enumerated.” He therefore concludes that the phrase “or other crime or misdemeanor opposed to decency and morality” must be confined to the same type of crime as pandering. (See United States v. Prater (7th Cir. 1975), 518 F.2d 817, 819.) Finally, plaintiff argues, since conviction of a gambling offense renders a person ineligible for a liquor license under a separate section of the State statute (Ill. Rev. Stat. 1987, ch. 43, par. 120(16)), the legislature must not have intended the phrase “or other crime or misdemeanor opposed to decency and morality” to also include gambling.

However, the charge against plaintiff was that he violated the Village code (Village of Schaumburg, Ill., Municipal Code §3 — 24(f)) and not the State statute. The language in the Village code is identical to that in the State statute, but in the Code there is no separate section concerning conviction of a gambling offense. The code states that a person is ineligible for a license if

“[he] has been convicted of pandering or other crime or misdemeanor opposed to decency and morality.” (Village of Schaum-burg, Ill., Municipal Code §3 — 24(f).)

As the Village asserts, gambling is one of those types of crimes which the courts have recognized as a justification for the revocation of a liquor license. (See Miller v. Liquor Control Comm’n (1969), 44 Ill. 2d 155, 158, 254 N.E.2d 502; El Patio, Inc. v. Illinois Control Comm’n (1959), 20 Ill. App. 2d 259, 156 N.E.2d 9.) Although the cases do not construe the section referring to decency and morality, the commissioner’s determination that gambling is a crime opposed to morality is not an arbitrary construction of the ordinance, especially since concern about gambling is fairly related to liquor control. See, e.g., Nappi v. License Appeal Comm’n (1977), 50 Ill. App. 3d 329, 330, 365 N.E.2d 612; Weinstein v. Daley (1967), 85 Ill. App. 2d 470, 482, 229 N.E.2d 357; El Patio, Inc. v. Illinois Liquor Control Comm’n (1959), 20 Ill. App. 2d 259, 263-65, 156 N.E.2d 9.

Ill

Plaintiff contends that the Village waived its right to revoke his 1988 liquor license because it issued the license to him knowing that he had been convicted of a felony. The Village maintains that neither waiver nor estoppel exists in the instant case.

We disagree with plaintiffs contention. The doctrine of waiver is based upon the principle that one may dispense with something of value by a voluntary act done with full knowledge of the rights involved and with an intention to relinquish those rights. (Gras v. Clark (1977), 46 Ill. App. 3d 803, 808, 361 N.E.2d 316.) Here, the Village clerk sent out liquor license renewal forms to all establishments that had licenses the prior year. Plaintiff signed and returned his form. The ministerial renewal of a license, even with the commissioner’s signature prior to the completion of his investigation, did not constitute the Village’s knowing relinquishment of its right to revoke plaintiffs liquor license. Furthermore, a hearing, the method eventually employed by the Village, was the only manner in which a license could be revoked.

IV

Plaintiff maintains that he did not receive a full, fair, and impartial hearing because the commissioner was not an impartial hearing officer. He contends that not only was improper evidence a basis for the commissioner’s decision, but the commissioner had made a decision prior to the hearing to revoke plaintiff’s license.

Indeed, prior to the court’s order to conduct a hearing on the matter of revocation, the commissioner had determined that the liquor license was void because of provisions of the Liquor Control Act. This was clearly a misapprehension of the law. Following the comb’s directives, however, a proper hearing was held according to law.

The record reveals that the commissioner was attentive to plaintiff’s position and conducted a full and fair hearing, that plaintiff was represented by able counsel, that he had full right of cross-examination, and that he had ample opportunity to present evidence and exhibits. Substantial evidence of only one charge was necessary to revoke or suspend plaintiff’s liquor license. (See Soldano v. Illinois Liquor Control Comm’n (1985), 131 Ill. App. 3d 10, 15, 475 N.E.2d 560.) The commissioner considered all the facts and circumstances, and the record supports his findings and conclusion that substantial evidence existed to revoke plaintiff’s license. Plaintiff received a fair hearing.

For all the foregoing reasons, the circuit court’s affirmance of the decision of the commissioner and the State Commission is affirmed.

Affirmed.

SCARIANO and CAMPBELL, JJ., concur.