text:
    LAVERNE PAQUET, Indiv. and as Special Adm’r of the Estate of Charles Paquet, Deceased, Plaintiff-Appellant, v. VICTOR I. STEINER et al., Defendants-Appellees.
    Second District
    No. 2—92—0509
    Opinion filed January 15, 1993.

      Gary M. Feiereisel, of Fraterrigo, Best & Beranek, of Chicago, for appellant.
    Robert W. Smyth, Jr., Francis D. Morrissey, Michael A. Pollard, and John M. MeGarry, all of Baker & McKenzie, of Chicago, and Reid S. Jacobson, of Brydges, Riseborough, Morris, Franke & Miller, of Waukegan, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Laverne Paquet, individually and as special administrator of the estate of Charles Paquet, appeals a summary judgment granted in favor of defendants, Victor I. Steiner, M.D., and Charles A. Cavallo, M.D. The circuit court of Lake County determined that plaintiff did not comply with the disclosure provisions of Supreme Court Rule 220 and, accordingly, barred plaintiff’s experts from testifying. (134 Ill. 2d R. 220.) As a result, plaintiff could not make a prima facie case in medical malpractice, and defendant’s motion for summary judgment was granted.

Plaintiff presents the following issues for review: (1) whether the trial court erred in barring plaintiff’s experts from testifying; (2) whether the court abused its discretion in denying plaintiff’s motion to continue the trial date; and (3) whether the trial court erred in granting summary judgment in favor of defendants. We affirm.

In 1985, plaintiff brought an action against defendants alleging the occurrence of medical malpractice resulting in her husband’s death in August 1983. On February 2, 1989, plaintiff voluntarily dismissed the case because her expert had become uncooperative. Plaintiff subsequently refiled the case in January 1990. A trial date was set for March 25, 1991. This trial date was continued on four separate occasions, three of which were requested by defendants. The final trial date was May 11, 1992. Before this date had arrived, attorneys for the defense sent three separate letters to plaintiff’s attorney reminding him that he had yet to disclose his experts. On March 13, 1992, 59 days before the May 11 trial date, plaintiff’s attorney disclosed the identities and opinions of his two medical experts.

Both defendants responded to plaintiff’s disclosure with motions to bar plaintiff’s experts because they had not been disclosed and deposed 60 days prior to the commencement of the trial pursuant to Supreme Court Rule 220 (134 Ill. 2d R. 220). Plaintiff sought an order denying defendants’ motion to bar plaintiff’s experts and requested another continuance. The trial court granted defendants’ motion and barred plaintiff from calling any expert witnesses because there had been “no adequate showing of due diligence.” (Emphasis in original.) The trial court also denied plaintiff’s motion for a continuance.

Defendants subsequently filed a motion for summary judgment premised on plaintiff’s inability to call experts at trial. Plaintiff’s counsel filed both a motion to reconsider the order barring her from presenting expert witnesses at trial and her response to defendants’ motions for summary judgment. The trial court denied plaintiff’s motion to reconsider and granted defendants’ motions for summary judgment.

Plaintiff first asserts that the trial court erred in barring plaintiff’s experts from testifying at trial. In support of this position, plaintiff argues that she satisfied the requirements of Rule 220 by disclosing the identity, opinions and qualifications of her expert witnesses within 90 days after she learned of those experts and their opinions. Supreme Court Rule 220 provides in part:

“In order to insure fair and equitable preparation for trial by all parties the identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party either within 90 days after the substance of the expert’s opinion first becomes known to that party or his counsel or, if the substance of the expert’s opinion is then known, at the first pretrial conference in the case, whichever is later. In any event, as to all expert witnesses not previously disclosed, the trial court, on its own motion, or on the motion of any party after the first pretrial conference, shall enter an order scheduling the dates upon which all expert witnesses *** shall be disclosed. *** All dates set by the trial court shall be chosen to insure that discovery regarding such expert witnesses will be completed not later than 60 days before the date on which the trial court reasonably anticipates the trial will commence.” 134 Ill. 2d R. 220(b)(1).

It is true that plaintiff disclosed her experts and their opinions within 90 days of learning of them. However, the satisfaction of this disclosure requirement does not, alone, automatically qualify an expert for trial. We determine that discovery of these experts should also be completed 60 days prior to the reasonably anticipated trial date.

Plaintiff presents two arguments which do not comport with our determination. First, plaintiff argues that Supreme Court Rule 220 specifically contemplates completion of discovery pursuant to a date set by the trial court and that the failure of the trial court to set a discovery deadline circumvents the 60-day rule. We disagree.

The failure of a trial court to set a discovery schedule does not give a party the freedom to reveal its experts and its opinions at any time. We have held that, “if a trial court does not set deadlines for disclosure of expert witnesses, such disclosure must occur in time to enable discovery concerning the witnesses to be completed at least 60 days prior to trial.” (In re Marriage of Gorisch (1991), 208 Ill. App. 3d 852, 856; Vallejo v. Mercado (1991), 220 Ill. App. 3d 1, 8.) In the present case, plaintiff revealed her experts and their opinions 59 days prior to the May 11 trial date and 413 days after the first scheduled trial date of March 25, 1991. Therefore, we hold that plaintiff violated the disclosure requirements of Supreme Court Rule 220.

Second, plaintiff argues that the trial date set by the court below was not one on which the trial was reasonably expected to commence and, therefore, plaintiff’s late disclosure of her experts did not violate the 60-day disclosure requirement of Supreme Court Rule 220. In support of this position, plaintiff asserts that the case was subject to many delays and that the decision to establish May 11 as the final trial date was an arbitrary one. Plaintiff asserts that the case underwent a voluntary dismissal and four separate continuances and, therefore, one more continuance should have been granted. We do not agree. The mere existence of previous delays does not justify yet another delay. We find nothing in the record which would have led the trial court to believe that the trial could not reasonably be expected to commence on May 11, 1992, or, for that matter, on any of the other earlier trial dates.

The imposition of a sanction for a violation of discovery rales is a matter largely within the sound discretion of the trial court and will not be disturbed on review absent an abuse of discretion. (Vallejo, 220 Ill. App. 3d at 8.) A Rule 220 sanction serves to promote fair discovery. (Vallejo, 220 Ill. App. 3d at 8.) When determining whether a sanction is just, the court must look to the conduct of the parties and should determine (1) whether the offending party’s action was characterized by a deliberate and pronounced disregard for the discovery rules, and (2) the effects of that conduct on the parties involved. Vallejo, 220 Ill. App. 3d at 8.

As we stated in Vallejo:

“The purpose of the rule is to facilitate trial preparation by eliminating last-minute disclosure of expert witnesses. [Citations.] The rule was designed to eliminate this evil by establishing a uniform, but not inflexible, framework regarding the timely revelation of the identity of expert witnesses and the subject matter of their testimony. [Citations.] The rule requires that parties act in good faith to ascertain the identity of expert witnesses they reasonably anticipate using.” Vallejo, 220 Ill. App. 3d at 7-8.

In Vallejo, we held that the trial court should have granted a continuance of the trial date in order to allow discovery of plaintiff’s expert witness even though the expert was not disclosed within Supreme Court Rule 220 guidelines. In that case, many factors led to our conclusion that a sanction was not proper. For example, new information came to light during discovery which justified plaintiff’s delay in seeking to file an amended complaint and obtaining an appropriate expert; plaintiff promptly informed the court of the changed circumstances giving rise to the delay; part of the blame for plaintiff’s delay resulted from defendant’s lack of cooperation during discovery; and plaintiff did not engage in any abusive discovery practices. Moreover, while the trial court allowed the filing of the amended complaint, it would not allow a continuance of the trial and prohibited the use of a Rule 220 expert to prove plaintiff’s case. Therefore, we found the trial court abused its discretion in refusing to continue the trial date and refusing to revise the discovery schedule.

In the present case, plaintiff presents no evidence of changed circumstances to justify her delay in obtaining an expert. Moreover, the trial court specifically found that plaintiff failed to show diligence in retaining an expert. In fact, plaintiff missed the deadline for the disclosure of her experts on four separate occasions.

First, plaintiff voluntarily dismissed the initial case against defendants only after she failed to identify her expert witnesses on the court’s designated date. Second, plaintiff failed to disclose her experts in a timely fashion for the March 25, 1991, trial date. Third, plaintiff violated the 60-day rule on September 30, 1991, when she sought to continue the trial date of November 4, 1991. Finally, as already discussed, plaintiff violated the 60-day rule with respect to the May 11, 1992, trial date.

Therefore, we hold that the trial court did not abuse its discretion when it barred plaintiff’s experts from testifying. Plaintiff’s failure to obtain her experts and present them for discovery within the time frame spelled out by both Supreme Court Rule 220 and the attendant case law amounts to a pronounced disregard for the rules of discovery in light of the long pendency of this trial. The effects of this delay unduly burdened defendants’ preparation for an approaching trial and placed additional burdens on the court dockets. In this respect, the sanction imposed was fair and justly imposed by the trial court, particularly where the delay in obtaining an expert was never adequately explained. Knight v. Haydary(1992), 223 Ill. App. 3d 564, 578.

As a final matter, the summary judgment granted to defendants must stand because plaintiff cannot maintain an action sounding in medical malpractice without expert testimony on matters related to the doctor’s deviation from the relevant standard of care. Castro v. South Chicago Community Hospital (1988), 166 Ill. App. 3d 479.

For the reasons stated above, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

GEIGER and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE INGLIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LUIS A. MEDINA, Defendant-Appellant.
    Second District
    No. 2—92—0372
    Opinion filed January 15, 1993.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Kathleen T. Zellner, of Kathleen T. Zellner & Associates, and Douglas H. Johnson, both of Naperville, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva, and Robert J. Morrow, of Early, Collison, Tousey, Regan, Wlodek & Morrow, of Elgin (William L. Browers and John X. Breslin, both of State’s Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Luis Medina, was convicted after a bench trial of unlawful possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1991, ch. 56½, par. 1401), unlawful possession of a controlled substance (Ill. Rev. Stat. 1991, ch. 56½, par. 1402), and unlawful possession of a controlled substance without a controlled substance tax stamp (Ill. Rev. Stat. 1991, ch. 120, par. 2160). The tax stamp count was dismissed after trial, and judgment on the possession count was merged into the judgment and sentence on the possession with intent to deliver count. Defendant was sentenced to 20 years’ imprisonment, and he filed a timely appeal.

In this court, defendant contends (1) that the trial court’s denial of his request for a continuance denied him a fair trial where the State divulged the identity of a confidential informant only four days prior to trial; (2) that the trial court should not have limited his cross-examination of three law enforcement officers; (3) that the trial court should not have denied his second motion to dismiss for failure to provide a speedy trial; and (4) that the introduction of other crimes and prior bad acts evidence denied him a fair trial. We affirm.

The charges in this case were instituted after approximately nine kilograms of cocaine, along with drug paraphernalia, were found in a detached garage on defendant’s property. The police were told on Friday, March 1, 1991, by a confidential informant, Ronnie White, that a kilogram of cocaine was present in defendant’s garage. White told the officers that more cocaine would be in the garage in the near future. On Sunday, March 3, 1991, law enforcement officers executed a search warrant at the garage and recovered approximately nine kilograms of cocaine. While the search was in progress, White met with an officer near the searched premises and gave the officer another kilogram of cocaine that White said he got from defendant’s garage.

CONTINUANCE

Prior to trial, the State moved to prohibit the introduction of, or testimony concerning, the kilogram of cocaine delivered to law enforcement officers by White. Ten days later, and four days prior to the start of trial, the court denied the motion, and the State immediately thereafter moved to add White’s name to the witness list as a possible rebuttal witness. On the morning of the first day of trial, defendant moved for a continuance based on the alleged late disclosure of White’s identity as the confidential informant. The trial judge denied the motion, but gave defense counsel time to talk with White and stated that he would continue the trial if White revealed information warranting an investigation. White refused to talk with defense counsel, and the trial went forward as scheduled.

Defendant claims that the denial of his motion for a continuance denied him a fair trial because he was not given enough of an opportunity to “investigate the circumstances surrounding the informant’s activities.” Defendant goes on to characterize White as a crucial witness for the State and claims that the State purposefully delayed disclosure of White’s identity. The State counters that defendant was not prejudiced by the denial and is thus not entitled to reversal.

Whether to grant a motion for a continuance is within the discretion of the trial court, and the party contesting the denial of its motion must establish that the denial resulted in prejudice at trial. (People v. Dalzotto (1977), 55 Ill. App. 3d 995, 999.) The particular facts and circumstances of the case are to be considered when deciding a motion for a continuance. (People v. Edwards (1988), 167 Ill. App. 3d 324, 332.) “A continuance for the purpose of allowing defense counsel further time to prepare is not erroneously denied unless the denial serves to prejudice defendant in some way.” Edwards, 167 Ill. App. 3d at 332.

Here, defendant was not prejudiced by the denial of his motion for a continuance. A number of factors leads us to this conclusion.

First, defendant was given the opportunity to talk with White before trial with the understanding that defendant could obtain a continuance if White disclosed anything that warranted investigation. White refused to talk with defendant. It thus appears that the trial court was not merely attempting to speed the trial along in disregard of defendant’s rights.

Second, defendant was able to question White about a number of relevant topics, including White’s prior record and his experience as a drug dealer; White’s agreement with the State, whereby he would escape punishment on drug charges if he “made” multikilogram drug cases; whether White owned and had given a cocaine press to defendant; and whether White himself planted the cocaine in defendant’s garage. White’s character and his motive to frame defendant to escape punishment on his own drug charges were laid bare before the trial judge as the finder of fact. Further, defense counsel made no claim at the conclusion of White’s testimony that additional time or witnesses were required in order to present the defense properly.

Third and last, White was not called by the State. This was not a case in which the State called a just-disclosed witness and the defendant was ill-prepared to counter damaging testimony. Here, defendant could have avoided what he terms in his brief as Ron White’s “attack” by not calling him to the stand.

The case of People v. Conner (1988), 176 Ill. App. 3d 900, cited by defendant for the proposition that the identity of an informant can be required when the informant is also a participant in the crime, is distinguishable. In Conner, the defendants claimed they were entrapped at their trial on drug charges. The informant whose identity was not revealed had allegedly owed one of the defendants a legitimate business debt and had repeatedly failed to pay the debt, endangering that defendant’s legitimate business. The informant had allegedly told the defendants that he could pay the debt if the defendants could obtain some cocaine for him. Conner, 176 Ill. App. 3d at 902-05.

Here, in contrast to Conner, the informant’s identity was revealed to defendant, who was then given wide latitude in exploring the informant’s participation in the events giving rise to the charges against defendant. Moreover, the same kind of unique factual scenario present in Conner is not present in this case. Defendant was not prejudiced by the trial court’s denial of his motion for a continuance.

CROSS-EXAMINATION

Defendant next claims that he was denied a fair trial when he was not allowed to cross-examine three law enforcement officers about their relationship with Ron White, the confidential informant. The State answers that defendant has again failed to show any prejudice from the court’s ruling.

At trial, T.J. Strickland, a detective with the Elgin police department, testified as to his participation in the search of the garage on defendant’s land and what that search uncovered. He also testified as to his interview with defendant in defendant’s house after the search. Defense counsel was prohibited from cross-examining Detective Strickland about the detective’s conversations and dealings with Ron White around the time of the procurement and execution of the search warrant. The trial judge ruled such inquiry beyond the scope of direct examination.

Kane County deputy sheriff Victor Fields also testified for the State as to his participation in the search and the questioning of defendant. Again, defendant was barred from asking Mr. Fields on cross-examination about Fields’ contacts with Ron White during the investigation of defendant.

John Mann, an agent with the Federal Drug Enforcement Administration testified for the State regarding the packaging and sale of cocaine. Defense counsel was allowed on cross-examination to question Mann about his receipt of the one kilogram of cocaine from White during the search.

Agent Mann was subsequently called as a witness for the defense, at which time defense counsel questioned Mann in detail about his contact with White. Mann also admitted knowledge that White had a deal with the State to work off charges against him and that White had been in defendant’s garage on the day of the search.

Further, Detective Strickland was also called as a witness by the defense and questioned about Ron White’s connection to the investigation. Deputy Fields was not called as a defense witness, although he was apparently available to testify.

Generally, cross-examination is limited to matters brought out on direct examination. (People v. Franklin (1990), 135 Ill. 2d 78, 97.) However, cross-examination may “ ‘develop all circumstances within the knowledge of the witness which explain, qualify, discredit or destroy his direct testimony although they may incidentally constitute new matter which aids the cross-examiner’s case.’ ” (People v. Williams (1977), 66 Ill. 2d 478, 486-87, quoting S. Gard, Illinois Evidence Manual R. 471 (1963).) Notably, a trial court’s ruling regarding the proper scope of cross-examination will not be reversed on appeal unless the ruling evidences an abuse of discretion resulting in manifest prejudice to the defendant. Franklin, 135 Ill. 2d at 96.

In this case it is clear that defendant suffered no prejudice from the trial court’s rulings. Everything that defendant claims he should have been allowed to cross-examine the three law enforcement officers about, he was able to elicit from two of them on direct examination. Further, defense counsel was given great latitude in examining Ron White about his role in the investigation of defendant, which is the very information defendant now claims was improperly restricted on cross-examination. Finally, the fact that this trial was held before a judge rather than a jury reinforces our conclusion that no prejudice occurred. Defendant failed to establish the manifest prejudice to his case that is required for reversal on an issue such as this.

SPEEDY TRIAL

Defendant next claims that the trial court erred when it denied his second motion to dismiss for failure to provide him with a speedy trial. The State argues that no speedy trial violation occurred.

On November 12, 1991, which was to be the first day of trial, defendant brought a motion to dismiss on speedy trial grounds. The State told the trial judge that it had first received the motion that morning and that it appeared that transcripts of earlier court proceedings were, needed in order to properly attribute earlier delays. These transcripts were not attached to the motion to dismiss. The parties subsequently agreed to hear the motion on December 19, 1991, at which time the transcripts apparently were reviewed. The trial court denied the motion on December 19,1991.

On January 9, 1992, defendant brought a second motion to dismiss on speedy trial grounds, claiming that the period between November 12, 1991, and December 19, 1991, was not chargeable to him for speedy trial purposes. The trial court denied this motion as well, and we are presented with the question of which party is to be charged with the November 12 to December 19 time period.

Defendant argues that he is merely required to alert the trial court that his speedy trial right has been violated and then any time attributable to processing the motion is chargeable to the State. The State answers that the time period in question is attributable to defendant because it was his failure to include the necessary transcripts with his first motion that led to the delay in question.

Defendant was to be tried within 120 days after he was incarcerated unless he himself caused the delay. (Ill. Rev. Stat. 1991, ch. 38, par. 103—5(a).) A delay is charged to a defendant for speedy trial purposes when his act in fact causes or contributes to the delay. (People v. Turner (1989), 128 Ill. 2d 540, 550.) Moreover, a defendant claiming a violation of his right to a speedy trial has the burden of establishing the violation. People v. Bowman (1990), 138 Ill. 2d 131, 137.

Defendant cites us to People v. Grant (1982), 104 Ill. App. 3d 183, for the proposition that the delay caused by the processing of a motion to dismiss for failure to provide a speedy trial is not a delay attributable to the defendant for speedy trial purposes, because such motion is merely the means by which the defendant is required to bring the violation to the court’s attention. Grant does indeed espouse that rule, but supplies no elaboration beyond citing People v. Uryasz (1975), 32 Ill. App. 3d 825. Uryasz states the rule without any rationale and without any cite to authority. (Uryasz, 32 Ill. App. 3d at 827.) Our research has traced the rule to the case of People v. Tamborski (1953), 415 Ill. 466.

We have examined Tamborski, and we find it to have held merely that, because the defendant’s trial was not delayed by any act on the part of the defendant, the time for processing the defendant’s second motion for discharge on speedy trial grounds would not be charged against the defendant for speedy trial purposes. (Tamborski, 415 Ill. at 472-75.) Tamborski does not proclaim a general rule that the time involved in deciding a motion to dismiss on speedy trial grounds cannot or should never be charged to a defendant. Although a subsequent Illinois Supreme Court decision, People v. Moriarity (1966), 33 Ill. 2d 606, cites Tamborski for what can be construed as just such a general proposition (Moriarity, 33 Ill. 2d at 611), the one-sentence proclamation in Moriarity is dictum.

We believe that in this case the time period between November 12, 1991, and December 19, 1991, is properly attributable to defendant. Here, defendant did not include with his motion transcripts that were apparently necessary to resolve a dispute regarding the proper party to whom to attribute earlier delays. As noted, defendant bears the burden of establishing a violation of his speedy trial rights. (People v. Bowman (1990), 138 Ill. 2d 131, 137.) Further, defendant did not argue that such transcripts were unnecessary to decide the motion, ask for a closer court date, or object when the assistant State’s Attorney opined that the time from the filing of the motion until the hearing date would be attributable to defendant. Defense counsel agreed to the December 19 hearing date. A defendant is deemed to have occasioned a delay for speedy trial purposes when he “requests a continuance, agrees to a continuance or through his actions otherwise contributes to the delay.” (People ex rel. Hatch v. Elrod (1989), 190 Ill. App. 3d 1004, 1011.) Here, defendant not only agreed to the continuance, but his failure to provide transcripts with his motion to dismiss contributed to the delay. Defendant was not denied his statutory right to a speedy trial.

Further, we believe that our decision today does not veer from the teachings of our supreme court, but rather applies the Tamborski decision in a way consistent with common sense. It is simply not practical to charge automatically to the State all time connected with the processing of any motion to dismiss for violation of a defendant’s speedy trial rights, especially in a case such as the present one. We also note that other courts have found, with little or no discussion, that delays attributable to deciding motions to dismiss on speedy trial grounds are chargeable to defendants. See People v. Smith (1976), 42 Ill. App. 3d 731, 734-35; People v. Yates (1974), 17 Ill. App. 3d 765, 767; see also United States v. Tedesco (7th Cir. 1984), 726 F.2d 1216, 1221 (delay resulting from filing of motion to dismiss for violation of Federal Speedy Trial Act (18 U.S.C. §3161 et seq. (1988)) was excludable under Act).

OTHER CRIMES EVIDENCE

Finally, defendant contends that he was denied a fair trial when the judge allowed the State to cross-examine Ron White about his prior drug dealings with defendant. Specifically, defendant says that the State should not have been allowed to elicit from White that he had purchased cocaine from defendant in the past, that he had been with defendant in the past when defendant had possessed cocaine, and that defendant had fronted cocaine to him in the past. Defendant argues that the introduction of this evidence violated the ruling on his motion in limine, which limited other crimes evidence to acts admitted by defendant in his statements to police, and violated the State’s answer to discovery in which it stated that it would not rely on any of defendant’s prior acts.

The State claims that defendant “opened the door” to the disputed evidence when defense counsel questioned Ron White about White’s dealings with drugs and his deal with the State whereby' White would escape prosecution on drug charges if he “made” some big arrests for the State. Alternatively, the State argues that any error which occurred was harmless in light of the strength of the evidence proving defendant’s guilt and in light of the fact that defendant was tried by a judge rather than a jury.

Although evidence of other crimes committed by a defendant is inadmissible to prove propensity to commit crime, it is admissible if relevant for other purposes, such as to show intent, motive, modus operandi, identity, or absence of mistake. (People v. Musitief (1990), 201 Ill. App. 3d 872, 876-77.) The trial judge must weigh the probative value of other crimes evidence against its prejudicial effect and may exclude the evidence if its prejudicial effect substantially outweighs its probative value. (People v. Tellez (1992), 235 Ill. App. 3d 542, 554.) An appellate court will not reverse a trial court’s decision to admit evidence of other crimes unless the trial court abused its discretion in ruling the evidence admissible. People v. Brozan (1987), 163 Ill. App. 3d 73, 80.

In this case we find no abuse of discretion. A review of the transcript of proceedings makes it clear that the defense sought to paint Ron White as a drug dealer who would plant large quantities of cocaine in defendant’s garage to avoid going to jail. The State’s theory was that defendant was a large-scale drug dealer, defendant’s defense was that he was not and that Ron White framed him. Once defendant questioned Ron White about White’s motive to frame defendant and White’s opportunity to do so, the State was permitted to rebut defendant’s theory with proof that defendant and Ron White had had previous drug dealings in which defendant was the seller and White played the role of defendant’s salesman. See People v. DeBeck (1990), 204 Ill. App. 3d 15, 18 (“where the defense first enters into the subject matter complained of, the State has a right to question a witness in order to present the whole story to the jury”).

Moreover, it is important that the trial in this case took place before a judge rather than a jury. In such a case, it is presumed that the judge considered only admissible evidence in reaching his conclusion, and the defendant seeking reversal bears the burden of showing on appeal that improper evidence influenced the court. (People v. Mytnik (1978), 66 Ill. App. 3d 624, 626-27.) Defendant makes no showing that the trial judge considered the other crimes evidence as bearing on anything beyond the relationship between defendant and Ron White. We find no abuse of discretion.

For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.

Affirmed.

BOWMAN and DOYLE, JJ., concur.


author: JUSTICE KNECHT

text:
      In re KEITH ADAMS, a Person Found Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Keith Adams, Respondent-Appellant).
    Fourth District
    No. 4—92—0567
    Opinion filed January 28, 1993.

      John B. Lower, Jeff M. Plesko, and Steven E. Craig, all of Guardianship and Advocacy Commission, of Champaign, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Respondent Keith Adams appeals from a judgment entered by the Sangamon County circuit court finding he was subject to involuntary commitment pursuant to section 1 — 119 of the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1991, ch. 91½, par. 1—119). Respondent contends the trial court’s order must be reversed because (1) the petition was defective as it did not indicate names and addresses of relatives or friends, or that a diligent effort had been made to determine his relatives and friends; (2) his involuntary admission was not supported by clear and convincing evidence; and (3) hospitalization was not the least restrictive means of treatment for his problem. We reverse because the petition to commit respondent was defective.

I. Involuntary Commitment Hearing

The petition for respondent’s involuntary commitment was filed by Elizabeth Bennett, who had been respondent’s friend for three years. At the June 19, 1992, hearing respondent’s counsel initially requested the petition against respondent be dismissed because respondent wished to voluntarily commit himself. The trial judge denied the request, reasoning the evidence indicated respondent was not an acceptable candidate for such admission.

Bennett testified she had received threatening phone calls from respondent throughout the three years she had been his friend. The calls became so frequent she was forced to have her home phone number changed. However, respondent persisted in phoning and harassing her at work. At times respondent phoned her 20 times a day. Respondent had also begun to come to Bennett’s home after he had been consuming alcohol. He would threaten to kill her and himself.

Bennett testified about specific actions by respondent. In May 1992 she and a friend were sitting at a table at her home. Respondent suddenly appeared and motioned as if he was shooting a gun. Bennett phoned the police but they were unable to apprehend respondent.

About a week before the hearing Bennett was awakened at 3 a.m. by respondent’s pounding on her front door. She phoned the police again, but respondent departed before they arrived. One officer remained in her home to await respondent’s return, which occurred soon. He tried to break down Bennett’s door, but the police apprehended him.

Carol Lee, registered nurse supervisor for Monroe and Jefferson Hall at the McFarland Mental Health Center (hereinafter the Center), where respondent was taken, testified next. When the police brought respondent to the Center the night of June 11, 1992, he was quite agitated and combative and threatened to kill members of the staff. He also threatened to kill Bennett. His breath smelled of alcohol, and under cross-examination, Lee opined respondent was under the influence of alcohol that night.

Doctor David Gilliland, licensed clinical psychologist at the Center, testified regarding his examination of respondent since respondent was brought to the Center. He opined respondent’s delusions were caused by alcohol and a mental illness. Respondent was diagnosed as a schizophrenic. Respondent’s substance-abuse problem was partially the cause of his schizophrenia. Gilliland also opined that respondent was likely to seriously harm another in the near future and respondent likely required approximately 90 days of hospitalization to develop a proper treatment plan for him.

On cross-examination, Gilliland stated he never personally observed respondent hurt anyone. Gilliland knew respondent kicked a door open on one occasion. Gilliland also stated they currently had no concrete treatment plan prepared for respondent. The staff was still observing and evaluating respondent.

Respondent testified on his own behalf. He had been under a psychiatrist’s care and had been taking “Laxitane” for his anxiety and depression. He stated he would never again disturb Bennett. He also stated he has never hurt anyone and has never followed through on his threats to hurt someone. He wished to continue his treatment with his previous psychiatrist and wanted to return to work and lead a productive, normal life.

During cross-examination, respondent stated he missed taking his pills sometimes, “one or two maybe a day.” He stated he drank almost a half of a fifth of Jack Daniels whiskey the night he was taken to the Center. He made several calls daily to Bennett, but denied making 20 daily. According to respondent, he kicked Bennett’s door out of anger and did not intend to kick it down.

The trial judge concluded the evidence established by clear and convincing evidence that respondent had a mental illness and could, because of that illness, reasonably be expected to harm someone in the near future. The judge also concluded hospitalization was currently the least restrictive environment for respondent.

II. Analysis

Respondent argues the petition for his involuntary commitment was fatally defective because it did not indicate the names and addresses of his relatives and friends, or that a diligent effort had been made to locate them. We agree.

Section 3—601(b)(2) of the Code (Ill. Rev. Stat. 1991, ch. 91½, par. 3—601(b)(2)) states the petition for involuntary commitment shall include:

“[T]he name and address of the spouse, parent, guardian and close relative, or if none, the name and address of any known friend of the respondent. If the petitioner is unable to supply any such names and addresses, he shall state that diligent inquiry was made to learn this information and specify the steps taken.”

The State argues initially that respondent has waived any alleged defect in the petition because respondent agreed to voluntarily commit himself and because he did not complain about the alleged defect at the trial level. Respondent’s attempt to voluntarily commit himself did not effect a waiver of the issue.

Moreover, because the alleged error in the petition would be apparent from the face of the record, liberty interests are involved, and the error could have been prejudicial to respondent, this court will consider respondent’s argument despite his failure to call it to the circuit court’s attention. See In re Whittenberg (1986), 143 Ill. App. 3d 836, 839, 493 N.E.2d 662, 663.

The petition does not list any relatives or friends of respondent or indicate what effort, if any, was made to identify and locate these individuals. Respondent directs us to this court’s reversal of an involuntary commitment petition in In re Wiessing (1992), 229 Ill. App. 3d 737, 738, 593 N.E.2d 1137, 1137, because the petition did not indicate a diligent attempt had been made to find respondent’s spouse, parent, guardian, close relative or friend.

The State contends Wiessing is distinct. There, this court reversed because the petition was defective in additional ways, i.e., it did not contain a detailed recitation of what occurred to lead to the filing of the petition for involuntary commitment, and did not contain the date the alleged incident occurred. However, the Wiessing ruling was based only on the same defect present in the petition to commit respondent. Wiessing states, “we address only part of the first issue — the failure to include in the petition the name and address of persons named in section 3 — 601(b)(2) of the Code or in lieu thereof to allege diligent inquiry has been made.” Wiessing, 229 Ill. App. 3d at 738, 593 N.E.2d at 1137.

The State also argues reversal is improper because the defect in the petition was not prejudicial. Although the State does not rely on it, a recent Illinois Supreme Court ruling supports the argument that failure to strictly comply with the Code does not always necessitate reversal of a petition for involuntary commitment. This principle is not contrary to our conclusion.

In In re Nau (1992), 153 Ill. 2d 406, the court concluded respondent waived consideration of a complaint the Code was not fully complied with because he was served notice of the hearing on his involuntary commitment before the petition was filed, contrary to the mandate provided by section 3 — 611 of the Code. (Ill. Rev. Stat. 1989, ch. 91½, par. 3—611.) The court refused to consider the error as plain error because of the particular circumstances presented: respondent had received notice, participated in the hearing without objecting to the defective notice, and was represented by counsel. Nau, 153 Ill. 2d at 419.

The Nau court also found the untimeliness of the petition for respondent’s continued hospitalization after his initial commitment was waived by respondent. The petition was filed on the 61st day rather than on the 60th day of respondent’s initial admission. (See Ill. Rev. Stat. 1989, ch. 91½, par. 3—813(a).) The court reasoned respondent appeared at the jury trial on the continuation issue, was represented by counsel, and neither objected to the defect. In addition, respondent experienced no prejudice by the one-day delay. The jury concluded respondent was eligible for an additional 60-day involuntary stay. Nau, 153 Ill. 2d at 421-22.

Where the outcome of the commitment hearing may have been prejudiced by the State’s failure to strictly comply with the Code, reversal of the petition is proper. The error in this case may have been prejudicial to respondent.

Because we find the petition to commit respondent was fatally flawed, we need not address the added issues raised by respondent. Respondent’s involuntary commitment must be reversed. A petition must include names and addresses of family members or friends. If this information is absent from the petition, the petition must indicate that a diligent effort had been made to locate respondent’s relatives or friends.

Reversed.

COOK and LUND, JJ., concur.


author: JUSTICE DOYLE

text:
    BRENDA A. FARNER, Plaintiff-Appellant and Cross-Appellee, v. BRUNSWICK CORPORATION, Defendant-Appellee and Cross-Appellant.
    Second District
    No. 2—91—1432
    Opinion filed December 17, 1992.
    Rehearing denied February 24, 1993.

      Thompson, Lamont & Flaherty, P.C., of Aurora (Patrick M. Flaherty, of counsel), for appellant.
    Lynn D. Dowd, Elizabeth Sitterly, Timothy J. Ashe, and Kathlein K. Krider, all of Cassiday, Schade & Gloor, of Chicago (D. Patterson Gloor, of counsel), for appellee.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiff, Brenda A. Farner, filed a three-count complaint in the circuit court of Cook County against defendant, Brunswick Corporation, seeking compensatory and punitive damages for injuries she suffered when she was struck by a propeller on a boat motor designed and manufactured by defendant. Pursuant to agreement of the parties, the circuit court transferred the cause to Kane County, and defendant filed a motion for summary judgment. Following the trial court’s granting of summary judgment in favor of defendant, plaintiff filed this timely appeal pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301), and defendant cross-appealed.

The sole issue raised on appeal by plaintiff is whether the trial court erred in ruling that her products liability claim was preempted by the Federal Boat Safety Act of 1971 (Act) (46 U.S.C. §4301 et seq. (1988)). In its cross-appeal, defendant raises the issue of whether its product was not unreasonably dangerous as a matter of law, thereby entitling it to summary judgment on that separate basis.

Plaintiff’s complaint alleged that on July 14, 1983, she was injured when she was struck by a boat powered with a Mercruiser 260 horsepower motor designed and manufactured by defendant. Count I of the complaint alleged that defendant’s product was unreasonably dangerous and defective because it did not have a propeller blade guard and bladeless propulsion system. Count II alleged that defendant negligently designed, manufactured and marketed the product by failing to “develop and employ available propeller guarding and blade-less propulsion systems.” Count III sought punitive damages based on defendant’s wilful and wanton conduct in failing to equip the product with a propeller guard and a bladeless propulsion system. Defendants answered and raised several affirmative defenses, one of which was that a claim for punitive damages was preempted by the Act.

Defendant subsequently filed its motion for summary judgment arguing two bases for judgment in its favor. First, it maintained that the Act preempted any State regulation that would require a propeller guard and that a jury verdict finding liability would effectively create a regulation requiring propeller guards. Alternatively, defendant contended that it was entitled to summary judgment because the product was not unreasonably dangerous as a matter of law.

Plaintiff filed a response to defendant’s motion for summary judgment wherein she initially argued that her claim was not preempted by the Act. Secondly, plaintiff asserted that the product was unreasonably dangerous as a matter of law. Finally, plaintiff posited that there was a question of material fact as to the availability of alternative designs and as such the motion should be denied.

In this latter regard, plaintiff submitted the affidavits of Laurence E. Thibault, who holds a doctorate in mechanical engineering, and Arthur M. Reed, a Ph.D. in naval architecture and marine engineering. Dr. Thibault stated in his affidavit that a propeller guard could have been installed without any substantial effect on the performance of the boat and that such guard would have prevented plaintiff’s injury. Dr. Reed, in his affidavit, stated that it was technologically feasible to incorporate a propeller guard into the design of the product without substantially impairing the use of the product.

The trial court granted defendant’s motion for summary judgment, finding that the Act preempted “plaintiff’s claims insofar as they [were] based on a failure to provide a propeller guard.” The court further ruled that defendant was not entitled to summary judgment on the issue of whether the product was unreasonably dangerous. Plaintiff filed this timely appeal, and defendant cross-appealed from that part of the order denying its motion for summary judgment based on the unreasonable dangerousness of the product.

On appeal, plaintiff contends that the Act does not expressly preempt a State tort claim because: (1) the language “law” or “regulation” contained in section 4306 is not sufficiently specific to include liability damage claims; (2) section 4306 preempts only a State law or regulation that is not identical to regulations prescribed under the Act; (3) the savings clause provided in section 4311(g) of the Act reinforces the interpretation that Congress did not expressly preempt common-law damage claims; and (4) similar preemption and savings clauses in other Federal statutes have been construed as not preempting common-law damage claims.

Plaintiff further contends that the Act does not impliedly preempt a State tort claim premised on a manufacturer’s failure to provide a propeller guard. In that regard, plaintiff maintains first that it is improper to consider the implied intent to preempt State tort claims in the face of an express statement of preemption that does not mention such claims. Second, plaintiff asserts the Act does not evidence an intent to occupy the entire field of boat safety to the exclusion of State participation. Third, plaintiff contends that uniformity of regulation is a goal of the Act only to the extent such uniformity promotes safety and is not an objective in and of itself. Fourth, plaintiff posits that a jury damage award in a common-law claim is not the equivalent of a law or regulation within the meaning of the Act.

Finally, plaintiff contends that there is no actual conflict between the Act and a common-law tort action based on the failure to provide a propeller guard.

Summary judgment is appropriate where the pleadings, depositions and affidavits show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1991, ch. 110, par. 2—1005(c); American National Bank & Trust Co. v. National Advertising Co. (1992), 149 Ill. 2d 14, 22.) Thus, where a suit may be determined according to a question of law, a trial court may properly dispose of the case on a summary judgment motion. (Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 421.) Although summary judgment is a drastic means of disposing of litigation and should be allowed only when the right of the moving party is clear and free from doubt, it is to be encouraged as an aid in the expeditious disposition of a lawsuit. Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 271.

While we have found no Illinois case directly addressing the preemption issue presented in this case, we are initially persuaded by the United States Supreme Court’s recent discussion of the doctrine of Federal preemption in the context of a common-law claim against certain cigarette manufacturers. (See Cipollone v. Liggett Group, Inc. (1992), 505 U.S __, 120 L. Ed. 2d 407, 112 S. Ct. 2608.) As emphasized in Cipollone, pursuant to the supremacy clause of the Constitution, any State law that conflicts with Federal law is without effect. (Cipollone, 505 U.S. at _, 120 L. Ed. 2d at 422, 112 S. Ct. at 2617.) Consideration of any issue arising under the supremacy clause begins with the assumption that the historic police powers of the State are not to be superseded by Federal law unless that is the clear and manifest purpose of Congress. (Cipollone, 505 U.S. at _, 120 L. Ed. 2d at 422, 112 S. Ct. at 2617.) Thus, the ultimate question in any preemption analysis is to determine the intent of Congress. Cipollone, 505 U.S. at_, 120 L. Ed. 2d at 422, 112 S. Ct. at 2617.

The intent of Congress may be expressly stated in a statute’s language or implicitly contained in its structure and purpose. (Cipollone, 505 U.S. at _, 120 L. Ed. 2d at 422-23, 112 S. Ct. at 2617.) In the absence of an express congressional command, State law is only preempted if that law actually conflicts with Federal law or if Federal law so thoroughly occupies a legislative field as to create a reasonable inference that Congress left no reason for the State to supplement it. (Cipollone, 505 U.S. at _, 120 L. Ed. 2d at 423, 112 S. Ct. at 2617.) Furthermore, when Congress has included in legislation a provision explicitly addressing preemption, and that provision provides a reliable indication of congressional intent with respect to State authority, there is no need to infer congressional intent to preempt State law from the substantive provisions of the legislation. (Cipollone, 505 U.S. at _, 120 L. Ed. 2d at 423, 112 S. Ct. at 2617.) Congress’ enactment of a provision defining the preemptive reach of a statute implies that matters beyond that reach are not preempted. Cipollone, 505 U.S. at _, 120 L. Ed. 2d at 423, 112 S. Ct. at 2618.

The Act contains two provisions relevant to this appeal. The first addresses Federal preemption and provides:

“Unless permitted by the Secretary under section 4305 of this title [46 U.S.C. §4305], a State or political subdivision of a State may not establish, continue in effect, or enforce a law or regulation establishing a recreational vessel or associated equipment performance or other safety standard or imposing a requirement for associated equipment (except insofar as the State or political subdivision may, in the absence of the Secretary’s disapproval, regulate the carrying or use of marine safety articles to meet uniquely hazardous conditions or circumstances within the State) that is not identical to a regulation prescribed under section 4302 of this title [46 U.S.C. §4302].” (46 U.S.C. §4306 (1988).)

Section 4311(g), which the parties characterize as a “savings clause,” provides:

“Compliance with this chapter [46 U.S.C. §4301 et seq.] or standards, regulations, or orders prescribed under this chapter [46 U.S.C. §4301 et seq.] does not relieve a person from liability at common law or under State law.” 46 U.S.C. §4311(g) (1988).

Defendant cites two cases that have addressed the precise issue of whether the Act preempts a State common-law action against a manufacturer for failure to install a propeller guard. (See Shields v. Outboard Marine Corp. (M.D. Ga. 1991), 776 F. Supp. 1579; Mowery v. Mercury Marine, Division of Brunswick Corp. (N.D. Ohio 1991), 773 F. Supp. 1012.) Both of those cases held that the Act preempts a State tort action based on injuries resulting from a guardless propeller. In doing so, they both looked to section 4306 of the Act and concluded that Congress intended to prohibit the State from promulgating recreational boating equipment safety standards that are not identical to those contained in the Act. (Shields, 776 F. Supp. at 1581; Mowery, 773 F. Supp. at 1014.) As the Mowery court noted, the purpose of section 4306 is to standardize regulations applicable to the manufacture of boats by precluding States from adopting requirements that conflict with Federal standards. Mowery, 773 F. Supp. at 1014; see Shields, 776 F. Supp. at 1581.

Both the decisions in Shields and Mowery are premised, in part, upon the fact that the United States Coast Guard has been delegated the exclusive authority to establish safety regulations for recreational boats. (Shields, 776 F. Supp. at 1581; Mowery, 773 F. Supp. at 1015.) Pursuant to that authority, the Coast Guard decided that propeller guards should not be required on recreational watercraft. (Shields, 776 F. Supp. at 1581; Mowery, 773 F. Supp. at 1015.) The decision of the Coast Guard was a decision not to regulate and has the same legal consequence as if the Coast Guard had issued a safety standard declaring that the States are prohibited from adopting a regulation requiring propeller guards on recreational boats. (Mowery, 773 F. Supp. at 1016; see Shields, 776 F. Supp. at 1581.) The failure of Federal officials to exercise affirmatively their authority takes on the character of a ruling that no such regulation is appropriate or approved and a State is not permitted to enact such a regulation. Shields, 776 F. Supp. at 1581; Mowery, 773 F. Supp. at 1016.

Even if a State has not legislatively enacted a law or regulation requiring that recreational boats be equipped with propeller guards, a State jury award of damages based on a defendant’s alleged failure to equip its product with such a guard would be tantamount to recognition of a State requirement that they be installed. (Mowery, 773 F. Supp. at 1016; see Shields, 776 F. Supp. at 1581.) State regulation can be as effectively exerted through an award of damages as through some form of preventive relief. (Cipollone, 505 U.S. at _, 120 L. Ed. 2d at 426, 112 S. Ct. at 2620.) The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy. (Cipollone, 505 U.S. at _, 120 L. Ed. 2d at 426, 112 S. Ct. at 2620.) Common-law tort actions are generally premised on the existence of a legal duty, and, as such, it is difficult to say they do not impose requirements or prohibitions. (Cipollone, 505 U.S. at _, 120 L. Ed. 2d at 426, 112 S. Ct. at 2620.) Furthermore, “State law” includes common law as well as statutes and regulations. Cipollone, 505 U.S. at _, 120 L. Ed. 2d at 426, 112 S. Ct. at 2620.

Section 4306 of the Act at issue here prohibits any State from establishing or enforcing a “law or regulation” establishing recreational vessel equipment safety standards. (See 46 U.S.C. §4306 (1988).) While we believe that a jury verdict finding defendant liable for failure to install a propeller guard would be tantamount to the imposition by the State of a regulation requiring defendant to do so, and thus at odds with the Coast Guard’s determination that no such guard is required, we also conclude that the use of the word “law” in section 4306 further evidences Congress’ intent that no common-law tort action be maintained based on the lack of a propeller guard. As discussed above, State law clearly embraces the common law. We interpret this specific expression of congressional intent to preempt a common-law tort action as barring the action in this case.

We also reject plaintiff’s contention that section 4311(g) preserves her cause of action. The purpose of this provision is to assure that in a product liability action mere compliance by a manufacturer with the standards promulgated under the Act will not be a per se defense to liability. (Mowery, 773 F. Supp. at 1017.) This provision has been interpreted as preventing a manufacturer from using compliance with the Act’s safety standards as a defense against liability for defectively designed products that are actually installed. (Mowery, 773 F. Supp. at 1017, citing Mulhern v. Outboard Marine Corp. (1988), 146 Wis. 2d 604, 432 N.W.2d 130; Rubin v. Brutus Corp. (Fla. Dist. Ct. App. 1986), 487 So. 2d 360; see also Wood v. General Motors Corp. (1st Cir. 1988), 865 F.2d 395, 402 n.10 (court suggests National Traffic and Motor Vehicle Safety Act of 1966, which has similar savings clause, does not prohibit State tort action against manufacturer for defective design of installed airbag).) The savings clause (section 4311(g)) has not been applied to find a manufacturer liable for not installing a device it had a choice not to install. (Mowery, 773 F. Supp. at 1017.) On the other hand, the savings clause would preserve a plaintiff’s claim based on a manufacturer’s installation of a defective or unreasonably dangerous propeller guard. (Mowery, 773 F. Supp. at 1017 n.9.) In this case, however, section 4311(g) cannot permit plaintiff to assert her claim. Allowing the claim would be contrary to the nonrequirement of propeller guards and the Act’s goal of uniform regulations. Shields, 776 F. Supp. at 1582.

Lastly, we consider plaintiff’s reliance, in part, on Mulhern v. Outboard Marine Corp. (1988), 146 Wis. 2d 604, 432 N.W.2d 130, and Rubin v. Brutus Corp. (Fla. Dist. Ct. App. 1986), 487 So. 2d 360. In Rubin, the Florida Appellate Court held that the Act did not preempt a State tort claim based on injuries received when a seat installed by the manufacturer came loose and collapsed on impact. Likewise, in Mulhern, the Wisconsin Court of Appeals concluded that the Act did not preempt a State tort action premised upon a defective throttle mechanism installed by the defendant manufacturer.

We consider Mulhern and Rubin to be distinguishable from this case because the basis of the claim in each case was defectively designed products which were actually installed. (See Mowery, 773 F.2d at 1017.) To the extent these two cases contain language arguably broad enough to suggest that the Act does not preempt the type of claim brought in this case, we decline to follow them. We offer no opinion as to whether the Act would preempt a State tort claim based on a manufacturer’s installation of a defective or unreasonably dangerous propeller guard.

Because of our decision upholding the trial court’s order granting summary judgment based on Federal preemption, we need not consider defendant’s cross-appeal.

For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.

Affirmed.

DUNN and BOWMAN, JJ., concur.


text:
    GLORIA HYATTE et al., Plaintiffs-Appellants, v. EUGENE R. QUINN, Recorder of Deeds, Winnebago County, Defendant-Appellee.
    Second District
    Nos. 2—92—0413, 2—92—0444 cons.
    Opinion filed January 21, 1993.
    Rehearing denied February 16, 1993.

      Michael K. Havrilesko, of Havrilesko & Associates, of Rockford (Ellen B. Lynch, of counsel), for appellant Gloria Hyatte.
    Jacob Pomeranz, of Cornfield & Feldman, of Chicago (Richard J. Tupper, of counsel), for appellant American Federation of State, County and Municipal Employees.
    Craig P. Thomas, of Reno, Zahm, Folgate, Lindberg & Powell, of Rockford (James D. Zeglis, of counsel), for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Gloria Hyatte (employee), who was discharged from the office of the County of Winnebago recorder of deeds (employer), and the American Federation of State, County, and Municipal Employees, Local No. 473 (union), appeal from an order of the circuit court of Winnebago County which vacated on public policy grounds an arbitration award reinstating employee with back pay. On appeal, both employee and union claim that the arbitration award does not violate public policy; union argues that the trial court exceeded the scope of its review of the award; and employee alleges that employer’s declaratory judgment suit brought to vacate the award was time-barred. Employer, as an alternative ground for upholding the trial court’s judgment, claims that the arbitrator exceeded the scope of her authority by deciding issues not presented to her for review. We reverse the judgment of the circuit court.

On August 4, 1986, employee was hired by employer as a microfilm technician where she filmed legal documents such as deeds and mortgages and edited the film for storage. According to Eugene Quinn, the recorder of deeds, the job of microfilm technician is a highly technical one which takes years to learn. According to both Quinn and Bob Stevenson, employee’s immediate supervisor, employee’s work deteriorated; she made too many mistakes, was absent excessively, and displayed a bad attitude. Employee was notified that she needed improvement on her use of time during her end-of-probation evaluation in November 1986. After 12 months on the job, she was told she needed to improve her use of time and her efficiency.

Employee was reprimanded by Stevenson on March 11, 1988, about her unsatisfactory work, bad attitude, tardiness and absenteeism. A similar reprimand was given employee in May 1988. On September 19, 1988, a meeting was held between Quinn, employee and her union representative wherein employee was chastised for making too many mistakes, smoking in the microfilm room where it was not permitted, and continuing to display an uncooperative and defiant attitude. Two days later employee was discharged.

Union grieved employee’s discharge, and the case proceeded to arbitration pursuant to the collective bargaining agreement between union and employer. The arbitrator found that employee knew she was not to smoke in the microfilm area but did so anyway, and that she was never disciplined for smoking in that area, even though Stevenson had seen her smoking. The arbitrator also found that employee made approximately one to three mistakes for every 700 documents she filmed. Stevenson testified that no more than two mistakes was acceptable for every 2,500 documents filmed.

Stevenson also testified that employee was generally cooperative in correcting her mistakes and that she could still be trained to perform the job adequately. The arbitrator found that employee usually caught and corrected her own mistakes. Quinn testified that he discharged employee, in part, because he was concerned about damage to records, which could not be replaced. He admitted, however, that employee had never damaged any records.

Employee testified that she had health problems that contributed to her absenteeism and that she always called when she was going to be late or absent. Further, she claimed that she did not know that the complaints about her work were deemed so serious that her discharge was considered. Finally, she alleged that the meeting held two days before she was fired was the first time her smoking and attitude were discussed.

The arbitrator found that employer should not have fired employee since employer had agreed in the collective bargaining agreement with the principles of corrective and progressive discipline. The arbitrator held, in a decision rendered on April 8, 1989, that employee’s infractions were not serious enough to warrant discharge. Employee was reinstated with back pay and benefits.

On September 26, 1989, employer filed a declaratory judgment action asking the court to vacate the arbitration award. Union counterclaimed seeking to uphold the award. On December 18, 1989, employee filed an action to confirm the award. The two cases were consolidated, and the circuit court asked the parties to address the issue of whether the award violated public policy. The court subsequently held that reinstatement of employee violated the public policy embodied in the statute governing county recorders (Ill. Rev. Stat. 1991, ch. 34, par. 3—5001 et seq.), specifically, sections of that statute such as those requiring documents to be filed “in a complete and intelligible manner” (Ill. Rev. Stat. 1991, ch. 34, par. 3—5013), giving the recorder “the right to control the internal operations of his office” (Ill. Rev. Stat. 1991, ch. 34, par. 3—5005.2), and providing that the recorder “shall be guilty of malfeasance in office” if he fails to perform any of his statutory duties (Ill. Rev. Stat. 1991, ch. 34, par. 3—5031). Union and employee appealed.

We address first the statute of limitations question since a successful claim would obviate the need to reach the merits of the dispute. Employee argues that employer’s declaratory judgment suit had to be brought within 90 days after employer received the arbitration decision. Employee cites the provision of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1991, ch. 48, par. 1608) stating, “The grievance and arbitration provisions of any collective bargaining agreement shall be subject to the Illinois ‘Uniform Arbitration Act.’ ” Employee then cites the section of the Uniform Arbitration Act requiring applications to vacate arbitration awards to be brought within 90 days after delivery of the award, except in circumstances not relevant here. Ill. Rev. Stat. 1991, ch. 10, par. 112(b).

However, employee does not direct us to the later subpart of section 12 which states, “Nothing in this Section or any other Section of this Act shall apply to the vacating *** of any award entered as a result of an arbitration agreement which is a part of or pursuant to a collective bargaining agreement.” (Ill. Rev. Stat. 1991, ch. 10, par. 112(e).) We agree with Board of Education of Meridian Community Unit School District 101 v. Meridian Education Association (1983), 112 Ill. App. 3d 558, 561-62, which held that the plain language of section 12(e) overrides the jurisdictional time limits of section 12(b). The correct time limitation for vacating arbitration awards arising from collective bargaining agreements is the five-year period now contained in the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 13—205).

At oral argument, counsel for employee pointed to our decision in City of De Kalb v. International Association of Fire Fighters, Local 1236 (1989), 182 Ill. App. 3d 367, as standing for the proposition that the language of section 12(e) speaks only to the grounds for vacating an award and does not vitiate the Uniform Arbitration Act’s application to awards arising from collective bargaining agreements. We have examined the DeKalb case, and we disagree with counsel. We noted in DeKalb that we were considering only whether the arbitration award in question violated public policy. (DeKalb, 182 Ill. App. 3d at 372.) The proper time for bringing an action to vacate an arbitration award arising from a collective bargaining agreement was simply not at issue in De Kalb. Because employer’s action was brought approximately six months after the arbitration award was rendered, it is timely.

We next consider whether the trial court correctly determined that the award violated public policy. We conclude that the trial court erred.

“[A] court’s review of an arbitrator’s award is extremely limited. [Citations.] Moreover, a court must construe an award, if possible, as valid.” (American Federation of State, County & Municipal Employees v. State of Illinois (1988), 124 Ill. 2d 246, 254 (hereinafter Blasingame).) Generally, an arbitration award arising from a collective bargaining agreement must be enforced if the arbitrator has not exceeded his authority and the award draws its essence from the collective bargaining agreement. (Blasingame, 124 Ill. 2d at 254.) However, an arbitration award may be set aside if it violates public policy. (Board of Trustees of Community College District No. 508 v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 423-24.) The public policy of Illinois is to be found in its constitution, its statutes and its judicial decisions. (O’Hara v. Ahlgren, Blumenfeld & Kempster (1989), 127 Ill. 2d 333, 341.) Further, the public policy must be clearly defined and dominant, and should not be gleaned from “ ‘ “general considerations of supposed public interests.” ’ ” (Blasingame, 124 Ill. 2d at 261, quoting W.R. Grace & Co. v. Local Union 759 (1983), 461 U.S. 757, 766, 76 L. Ed. 2d 298, 307, 103 S. Ct. 2177, 2183, quoting Muschany v. United States (1945), 324 U.S. 49, 66, 89 L. Ed. 744, 756, 65 S. Ct. 442, 451.) Finally, “[i]n order to vacate the award of an arbitrator, the violation of public policy must be clearly shown.” Blasingame, 124 Ill. 2d at 261.

No public policy exists requiring employee’s discharge for the workplace sins she committed. The trial court, citing United States Postal Service v. American Postal Workers Union (1st Cir. 1984), 736 F.2d 822, held that public policy could be derived from common sense, in addition to constitutions, statutes and case law. It thereafter extracted its public policy prohibiting employee’s reinstatement from the county recorder’s statute and common sense. We read Postal Service differently.

In Postal Service, the United States Court of Appeals for the First Circuit held that it was a violation of public policy to order reinstatement of a postal worker who had been convicted a short time earlier of embezzling a large sum of money from the postal service. (736 F.2d at 825-26.) The court stated, “When a court bars the enforcement of an arbitration award on the basis of public policy, that policy must be clearly defined. [Citation.] The policies in this case are not only defined by positive law, but are also the clear dictates of common sense.” 736 F.2d at 825.

It seems to us that the First Circuit was citing common sense as additional support for its conclusion, not stating that public policy could be derived from common sense. Further, the United States Supreme Court rejected the commonsense approach in United Paperworkers International Union v. Misco, Inc. (1987), 484 U.S. 29, 98 L. Ed. 2d 286, 108 S. Ct. 364. In Misco, the Court held that an arbitration award reinstating an employee who had been fired for violating his employer’s drug policy should not have been vacated on public policy grounds. The Court of Appeals for the Fifth Circuit had affirmed the vacation of the award. The Supreme Court noted that the court of appeals had not reviewed the proper statutory and case law sources to find its public policy against operating dangerous machinery while under the influence of drugs. It held, “Although certainly such a judgment is firmly rooted in common sense, we explicitly held in W.R. Grace [W.R. Grace & Co. v. Local Union 759 (1983), 461 U.S. 757, 76 L. Ed. 2d 298, 103 S. Ct. 2177] that a formulation of public policy based only on ‘general considerations of supposed public interests’ is not the sort that permits a court to set aside an arbitration award that was entered in accordance with a valid collective-bargaining agreement.” 484 U.S. at 44, 98 L. Ed. 2d at 303, 108 S. Ct. at 374.

Adding further support to our conclusion that public policy cannot arise from common sense is the trial court’s statement that common sense “is not a clear, well-defined concept” but “differs from person to person.” Our supreme court has said, “ ‘ “The public policy of a State or nation must be determined by its constitution, laws and judicial decisions, — not by the varying opinions of laymen, lawyers or judges as to the demands of the interests of the public.” ’ ” (Blasingame, 124 Ill. 2d at 260, quoting Zeigler v. Illinois Trust & Savings Bank (1910), 245 Ill. 180, 193, quoting Hartford Fire Insurance Co. v. Chicago, Milwaukee & St. Paul Ry. Co. (8th Cir. 1895), 70 F. 201, 202.) To derive public policy from common sense would violate the explicit teaching of Blasingame.

We find the case at bar to be controlled by Blasingame. In that case, two mental health technicians were fired for taking an unauthorized side trip away from their facility at a time when the facility was short-staffed. During the technicians’ absence, a patient died in a wing not assigned to the technicians. They were discharged for conduct constituting mistreatment of a service recipient. The arbitrator reduced the technicians’ discharges to suspensions, finding that there was not just cause for the discharges in view of mitigating factors such as the technicians’ exemplary employment histories and the unlikelihood of a similar event ever occurring. The trial court determined that the arbitration award violated public policy, but the appellate court reversed. The supreme court affirmed the appellate court, noting the interplay between the public policy favoring compassionate care of the mentally disabled, the public policy promoting good relations between public employers and public employees, and the public policy requiring finality in arbitration awards. Blasingame, 124 Ill. 2d at 262.

The Blasingame court reasoned, “There is simply no policy that mandates the discharge of all employees found guilty of mistreatment of a service recipient when the arbitrator expressly finds that the grievants were exemplary mental health employees, when punishment has been imposed, and where no nexis [sic] exists between the infraction and the patient’s tragic death.” (124 Ill. 2d at 263.) Likewise, no clearly defined and dominant public policy requires employee’s discharge in this case.

The statutes cited by the trial court giving the county recorder the right to control his office (Ill. Rev. Stat. 1991, ch. 34, par. 3— 5005.2), requiring him to file complete and intelligible documents (Ill. Rev. Stat. 1991, ch. 34, par. 3—5013), and providing penalties for his failure to do so (Ill. Rev. Stat. 1991, ch. 34, par. 3—5031) do not sufficiently show the type of dominant public policy required to overturn the arbitration award. For example, the court in Blasingame noted that an Illinois statute required recipients of mental health services to be provided with adequate and humane care (Ill. Rev. Stat. 1991, ch. 91½, par. 2—102(a)) and that another statute made criminal the abuse or gross neglect of long-term care facility residents (Ill. Rev. Stat. 1991, ch. 38, par. 12—19). The Blasingame court, however, cautioned that the public policy to be gleaned from the two statutes, the policy favoring proper treatment of the mentally disabled, should not be stretched to require the discharge of the two mental health technicians under the circumstances. Blasingame, 124 Ill. 2d at 262-63.

Similarly, the general public policies in favor of intelligible public records and efficient operation of the recorder’s office embodied in the county recorder’s statute do not require the firing of employee for the relatively minor infractions alleged here. Eugene Quinn, the county recorder, testified at the arbitration hearing that employee had not damaged any records. Moreover, while employee’s work record was not spotless, as were the work records of the two employees in Blasingame, employee’s supervisor testified that employee was generally cooperative in correcting her mistakes and that she could still be trained to perform her duties correctly.

Other cases support our conclusion. For example, in Department of Central Management Services v. American Federation of State, County & Municipal Employees (1991), 222 Ill. App. 3d 678, it was held that reinstatement of a parole officer who had been fired for making false statements to a Federal agency in violation of the penal laws did not offend public policy. (222 Ill. App. 3d at 686-89.) The court there rejected contentions that reinstatement would violate the public policy of ensuring the integrity of the correctional system and would send a message to other parole officers that they need not obey the law to keep their jobs. (222 Ill. App. 3d at 687.) The court noted, “[T]here is no well-defined or dominant policy mandating discharge of this parole officer because of the felony which he committed.” 222 Ill. App. 3d at 688.

Another case, also entitled Department of Central Management Services v. American Federation of State, County & Municipal Employees (1990), 197 Ill. App. 3d 503, is also instructive. In that case, the court considered whether arbitrators’ reinstatement of several public employees violated public policy. It determined that public policy did not permit reinstatement of a correctional officer who had been discharged for, inter alia, using illegal drugs with an ex-inmate in violation of regulations prohibiting socializing with such persons. (197 Ill. App. 3d at 514-15.) The court similarly held that reinstating correctional officers who had battered a prisoner violated public policy. (197 Ill. App. 3d at 514.) However, the court decided that it could not overturn on public policy grounds an arbitration award setting aside the discharge of two correctional officers who did not report the beating by the other two guards. The court stated, “[T]he mere violation of regulations requiring the reporting of misconduct by other employees, however serious, has an insufficient nexus to any public policy expressed in the constitution, laws, or court decisions to require employers to have a right to discharge for said conduct.” (197 Ill. App. 3d at 515.) Moreover, the court noted that it could not find any support in the constitution, statutes or case law for a decision that public policy would be violated by reinstating a correctional officer who was likely to be unreliable and who failed to file certain reports. 197 Ill. App. 3d at 514-15.

Certainly the misconduct of employee here is much closer to that of the guards who did not report other officers’ misconduct than it is to that of the guards who battered the prisoner and used drugs with an ex-inmate. We do not mean to imply that a public employer must continue to employ a worker who does substandard work. We are merely mindful of the extreme narrowness of the public policy exception to the arbitration finality rule. (Department of Central Management Services v. American Federation of State, County & Municipal Employees (1990), 197 Ill. App. 3d 503, 512; Blasingame, 124 Ill. 2d at 254.) Affirming the trial court’s public policy decision would improperly broaden the public policy exception to the arbitration finality rule in violation of the mandates of the Illinois and United States Supreme Courts. Reinstatement of employee does not violate a dominant and clearly defined public policy.

The trial court also determined that the arbitrator improperly decided a public policy question when she “modified” the collective bargaining agreement to provide for mandatory progressive discipline. Section 8.1 of the collective bargaining agreement states, “While the parties agree with the tenets of progressive and corrective discipline, disciplinary action may include [oral reprimand, written reprimand, suspension and discharge], but shall be initiated in light of the seriousness of the offense.” The trial court held that by striking employee’s discharge, the arbitrator rewrote the collective bargaining agreement to provide that discipline shall be progressive instead of may be progressive. We disagree with the trial court and find that Blasingame controls this issue as well.

In Blasingame, as in the present case, the issue before the arbitrator involved the propriety of employee discharges. Also in Blasingame, as in this case, the employer contractually agreed with the tenets of progressive and corrective discipline. The Blasingame court clarified that, in a discipline case, an arbitrator may carefully scrutinize penalties imposed to determine whether the “punishment fits the crime.” (124 Ill. 2d at 256-57.) This power of the arbitrator is especially relevant in our case since the collective bargaining agreement provides that disciplinary action “shall be initiated in light of the seriousness of the offense.” (Emphasis added.) Clearly then, the arbitrator had the authority under the collective bargaining agreement to weigh the seriousness of employee’s work misconduct against the nature of the penalty.

Further, the arbitrator’s decision on progressive discipline does not usurp the recorder’s statutory right to control the internal operations of his office. (Ill. Rev. Stat. 1991, ch. 34, par. 3—5005.2.) Again, Blasingame is instructive. The employer in Blasingame contended that the arbitrator’s decision reinstating the employees was an improper substitution of the arbitrator’s own judgment for the employer’s contractually granted discretion as to the discipline necessary to promote acceptable levels of patient care. The supreme court rejected this argument and cautioned that the arbitrator’s decision as to whether the penalty fits the misconduct should not be confused with encroachment on an employer’s right to define quality of service. (Blasingame, 124 Ill. 2d at 256-57.) Employer here is not prohibited from disciplining employee, from controlling his office, or from complying with his duty to maintain accurate records, but is merely contractually bound to impose punishment consistent with employee misconduct.

Next, union claims that the trial judge erroneously substituted his own view of the facts and interpretation of the contract for that of the arbitrator. We agree.

The United States Supreme Court has set forth the proper standard for reviewing arbitration awards:

“Because the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator’s view of the facts and of the meaning of the contract that they have agreed to accept. Courts thus do not sit to hear claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts. *** [T]he arbitrator’s award settling a dispute with respect to the interpretation or application of a labor agreement must draw its essence from the contract and' cannot simply reflect the arbitrator’s own notions of industrial justice. But as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” (United Paperworkers International Union v. Misco, Inc. (1987), 484 U.S. 29, 37-38, 98 L. Ed. 2d 286, 299, 108 S. Ct. 364, 370-71.)

Thus, a court cannot substitute its findings for those of the arbitrator and cannot overturn an arbitration award merely because it disagrees with the arbitrator. See also Blasingame, 124 Ill. 2d at 255.

In this case, the arbitrator explicitly found that employee’s misconduct “never resulted in any serious operational problems that would preclude the use of progressive discipline.” In contrast, the trial court found that employee’s “violations, as shown by the evidence presented, [were] sufficiently clear to warrant judicial interference with the arbitrator’s award.” Further, the trial court found that the evidence was “contained in the record, pleadings, affidavits, and motion to supplement evidentiary record, along with the arbitrator’s findings and decision.”

The trial court’s review went beyond the extremely narrow review mandated by both the Illinois and United States Supreme Courts. The trial court looked at the evidence anew, instead of confining its focus to the facts as found by the arbitrator. The job of the trial court was to determine whether the arbitrator’s reinstatement decision violated public policy, not whether the facts of the case warranted discharge. (See Misco, 484 U.S. at 43, 98 L. Ed. 2d at 302, 108 S. Ct. at 373.) The trial court erred in broadening the scope of its review of the arbitrator’s decision.

Finally, employer claims, as an alternative method of upholding the trial court’s decision, that the arbitrator exceeded her authority in deciding whether employee was fired for just cause, when the just cause issue was not presented to her in the grievance. Additionally, employer alleges that the issue of whether employee’s misconduct created serious operational problems was not presented to the arbitrator and that she thus had no authority to decide that issue. We disagree with employer’s interpretation of the arbitration award.

When an arbitrator decides issues not submitted to him by the parties, he exceeds his authority. (Board of Trustees of Community College District No. 508 v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 419; Blasingame, 124 Ill. 2d at 254.) Moreover, the collective bargaining agreement itself limits the arbitrator’s authority to resolving issues submitted or raised by the parties.

After reading the arbitrator’s decision, we conclude that the “just cause” issue was not the basis of her decision, notwithstanding that she framed the question for decision as whether just cause existed to discharge employee. The arbitrator’s decision hinged on the progressive discipline issue, which was expressly submitted for decision and which is of necessity intertwined with an examination of just cause for discharge. The entire thrust of the arbitrator’s written decision is that discharge was too severe a sanction for employee’s misconduct and that progressive discipline should have been utilized. Further, deciding whether employee’s substandard conduct caused serious problems for the recorder’s office was necessary to resolve the progressive discipline question. As we have previously noted, the arbitrator may closely scrutinize employment discipline to ensure that the “punishment fits the crime.” (Blasingame, 124 Ill. 2d at 256-57.) Under the circumstances of this case, the just cause and “serious operational problems” issues were sufficiently intertwined with the progressive discipline question that any examination of the progressive discipline issue unavoidably entailed just cause and “serious operational problems” considerations. The arbitrator did not exceed the scope of her authority.

For the foregoing reasons, we reverse the judgment of the circuit court of Winnebago County.

Reversed.

McLaren and BOWMAN, JJ., concur.