author: JUSTICE GORDON

text:
    RAYMOND KAPPEL, Petitioner-Appellee, v. POLICE BOARD OF THE CITY OF CHICAGO, Respondent-Appellant.—FRED RICE et al., Plaintiffs-Appellants, v. RAYMOND KAPPEL et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—89—0975
    Opinion filed September 30, 1991.

      Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Muscovitch and Nina Puglia, Assistant Corporation Counsel, of counsel), for appellant.
    William J. Harte, Ltd., of Chicago (William J. Harte, of counsel), for appellee.
   JUSTICE GORDON

delivered the opinion of the court:

In March 1985, defendant Police Board of the City of Chicago (the Board) discharged defendant Raymond Kappel, a Chicago police officer, for possession and sale of unregistered weapons. After a lengthy process of administrative review, in June 1987 the Board “with great reluctance” complied with a circuit court order by vacating the discharge and instead suspending Kappel for years, but only after the Board had resisted two prior remand orders to reduce the sanction. The procedural history is relatively complicated and is set forth in more detail below.

Facts

On July 30, 1984, the superintendent of police suspended Kappel and filed charges against Kappel with the Board. On December 21, 1984, the date set for hearing, amended charges were filed. He was charged with violation of several rules and regulations of the police department, including:

“Rule 2. Any action or conduct which impedes the department’s efforts to achieve its policy and goals or brings discredit upon the department.
Rule 6. Disobedience of an order or directive, whether written or oral.”

The basis of these charges, each pertaining to Kappel’s conduct during the spring of 1981, included: (1) possession of an unregistered automatic rifle; (2) possession of an unregistered semi-automatic rifle; (3) selling a handgun from which the serial number had been removed; (4) firing a gun within the city limits; and (5) lying regarding his knowledge of the rifle being automatic.

A two-day hearing took place on December 21, 1984, and January 9, 1985. The parties entered into stipulations regarding certain facts, including the following: On April 16, 1981, Kappel sold a .25 caliber Berretta automatic handgun without a serial number on it to a Federal undercover agent. On May 13, 1981, at 1 a.m., he discharged an automatic rifle at 1-55 and Pulaski, which is within the corporate limits of the City of Chicago. On May 15, 1981, Kappel was in possession of an AR-15 rifle (serial No. 133842) which had been converted to a fully automatic weapon, and was also in possession of an AR-15 semiautomatic rifle (serial No. 46995).

Morris Steward, of the Internal Affairs Division (IAD) of the Chicago police department, testified for the department. He believed the department received “federal documents” regarding Kappel in late 1983 or early 1984, which triggered an IAD investigation. To Steward’s knowledge, Kappel later cooperated with State and Federal authorities. The Federal government granted Kappel immunity from prosecution.

Francisco Guerrero, a Chicago police officer, testified for the Department that he sold a semi-automatic rifle (serial No. 46995) to Kappel three or four years earlier (which would have been 1980 or 1981).

Michael Van Amburgh testified for the department that he is a special investigator, criminal, for the United States Treasury Department, Department of Alcohol, Tobacco and Firearms (ATF). In June 1980, he was assigned to investigate Chicago police officer Michael Gallagher. Van Amburgh testified that the Gallagher investigation began “[d]ue to allegations that Michael Gallagher was a federal firearms dealer [who] was illegally obtaining and selling firearms.” Federal charges were subsequently brought against Gallagher through a government information and Gallagher pleaded guilty and was imprisoned as a result of that plea.

Kappel himself was not under investigation when Gallagher introduced Van Amburgh to Kappel. On April 1, 1981, Kappel telephoned Van Amburgh and identified himself as “Ray.” Van Amburgh testified that “Ray told me that he understood I was interested in purchasing a .25 *** caliber Berretta, that I had previously spoken to Michael Gallagher about.” Kappel also remarked that “he was not crazy about talking over the phone because he did not know who he was talking to. He felt that he had phone problems.” They agreed on a price of $100 for the handgun.

On April 16, 1981, at 10:30 p.m., Van Amburgh met at a restaurant parking lot with Kappel, Gallagher and an unidentified Chicago police officer. Gallagher produced the .25 caliber Berretta and handed it to Van Amburgh. There was evidence indicating that the serial number had been removed. Van Amburgh testified further that he “turned to [Kappel] and asked him if we still agreed upon the price of $100. He said, ‘Yes, that’s right,’ at which time I gave him $100.”

Several weeks later, Van Amburgh arranged to meet Kappel at a restaurant in the company of Gallagher and his nephew. They discussed “different types of weapons.” Kappel told Van Amburgh “as we were talking about different rifles [he said] that he did possess an AR-15 rifle that *** was converted.”

On May 12, 1981, Van Amburgh and Reggie Humphries, a friend of Kappel, were at Kappel’s home with Kappel. Two women were also in and out of the house. Kappel showed Van Amburgh a converted AR-15 rifle. Van Amburgh performed a standard field test and determined it could fire in a fully automatic mode. Kappel, Humphries and Van Amburgh later went to a restaurant, then drove to 1-55 and Pulaski at about 12:15 a.m. Kappel “produced an AR-15 rifle along with ammunition,” and Van Amburgh produced a 9 millimeter machine gun. They took turns firing the weapons into the water and into the land next to the water. The only people in the vicinity were several ATF agents.

On May 15, 1981, Van Amburgh, along with several other ATF agents and Sergeant Morris Steward of the Chicago police department, executed a search warrant at Kappel's apartment. They found an AR-15 rifle (serial No. 133842) which was fully automatic, and a second AR-15 rifle (serial No. 46995) which was semi-automatic.

Kappel, in exchange for a promise of immunity, then cooperated with ATF in the investigation of Gallagher. Kappel also cooperated subsequently in a second investigation in which he wore an electronic surveillance device.

On cross-examination, Van Amburgh agreed that he told Kappel he was a good police officer, and that he felt Kappel had been “caught up in a bad situation because he was a gun buff.”

Captain Matthias Casey testified for petitioner that he worked with Kappel for eight years as his watch commander. Kappel’s quality of work was excellent, and he was an asset to the police department. On cross-examination Casey testified that the stipulated facts did not change his opinion as to Kappel’s “capacity as I know him as a police officer.”

Sergeant Jesse Acosta testified for Kappel that he worked with Kappel for 4V2 years as his immediate supervisor. Kappel had a very good reputation as a police officer. The stipulated facts did not change his opinion. “[H]e’s still a good officer as far as I’m concerned.”

Sergeant Charles Hensley testified for Kappel that he worked with Kappel for seven years as his immediate supervisor. His performanee, efficiency ratings and reputation were good. He considered Kappel “absolutely” to be an asset to the police department. Hensley specified that he was Kappel’s immediate supervisor in April and May of 1981 and noticed nothing unusual or problematic about Kappel’s performance as a police officer during that time. On cross-examination, Hensley testified that the stipulated facts did not change his opinion of Kappel.

Kappel testified on his own behalf that he became a police officer on October 25, 1971. From 1971 to 1985, he received approximately 115 honorable mentions and one department commendation. He was never told that his performance during this period was substandard or insufficient. He had never been disciplined. His average efficiency grades were 85% to 90%. From May 15, 1981, to July 30, 1984, he received one department commendation and 20 to 30 honorable mentions.

In 1978, Kappel and his wife were divorced. In 1979, his father committed suicide. In 1981, his mother died. During this period, Kappel began to drink. In late 1981, he sought help through the police department and entered the alcoholism treatment program recommended by the police department. He was hospitalized for the minimum time — seven days — and then released by attending physicians. “They felt that I was capable at that time. I wasn’t a confirmed alcoholic and I went to almost a year of AA meetings.” He stated that he experienced no problems with alcohol after December 1981. On cross-examination, Kappel agreed that between 1978 and 1981 he drank excessively.

Kappel testified that on April 16, 1981, at 10:30 p.m., he sold a .25 caliber Berretta automatic handgun to Van Amburgh. They met in the parking lot of a restaurant. Gallagher had possession of the gun and handed it to Van Amburgh. The gun had no serial number and Kappel had no permit to sell the gun.

On May 13, 1981, at 1:30 a.m., Kappel fired an AR-15 fully automatic rifle at 1-55 and Pulaski while Van Amburgh was present. Kappel described the vicinity of 1-55 and Pulaski as private land owned by the City of Chicago Sanitary District, covering an area of one-half by three miles located along the canal. It was a “desolate” area which was unoccupied. “It’s mainly used as a road from Pulaski up into Cicero where the City stores piping and sewage [sic].”

Kappel testified that on May 15, 1981, a search warrant was executed and two AR-15 rifles were found in his apartment. Kappel agreed that he had bought one (serial No. 133482) rifle “from the gun dealer, Michael Gallagher.” He did not register it. It was not fully automatic when he purchased it. However, he conceded that it could be converted to a fully automatic weapon with the addition of a part which he possessed. Kappel purchased the second rifle (serial No. 46995) from Chicago police officer Guerrero.

Kappel testified further that he cooperated with ATF agent Van Amburgh in the investigation of Gallagher, and in one additional investigation (not further identified in the record), during which he wore a recording device. Kappel felt his life was in danger during the period he performed this undercover work.

In closing arguments before the Board, counsel for the police Department argued that “the Police Board should take note of the context of these actions. We must not forget that Kappel had close association with Michael Gallagher.” Counsel for Kappel responded that Kappel was simply “caught up in an investigation of Michael Gallagher,” who pleaded guilty only because of Kappel’s cooperation in the investigation and “that is the crux of this entire case.”

PROCEDURAL HISTORY

In March 1985 the Board found Kappel guilty of all charges and found cause for discharge. Kappel filed a petition for administrative review in the circuit court. In November 1985, the circuit court reversed the Board’s decision and remanded for reconsideration of the penalty after finding the penalty of discharge was “against the manifest weight of the evidence.”

In January 1986, the Board again decided that Kappel should be discharged. Kappel again petitioned for administrative review. The circuit court, for the second time, remanded to the Board with directions that it “impose a penalty lesser than that of discharge.”

In June 1986, the Board reaffirmed its decision to discharge Kappel for the third time. The Board then asked the circuit court for an “entry of final judgment” to render the matter appealable, and to end the remand process. The Board stated: “That the interests of justice and of administrative and judicial economy will not be best served by further remand ***.” On June 17, 1986, notwithstanding the Board’s motion for entry of a final order, the trial court again entered an order remanding the matter to the Board and stating that “in accordance with the order entered herein on May 9, 1986, the Board *** is ordered to impose an alternative penalty lesser than that of discharge.” Notwithstanding this circuit court order, the Board continued with the appeal process in this court.

On May 1, 1987, this court, in an unpublished Rule 23 order (Nos. 86—1516, 86—2109 (cons.)) dismissed the Board’s appeal for lack of jurisdiction because the June 17, 1986, trial court remand order was not a final and appealable order.

On June 10, 1987, the Board reconsidered its decision pursuant to the June 17, 1986, trial court order, and on July 9, 1987, it issued the following findings and decision.

“It is the opinion of the Police Board that [Kappel] should be separated and discharged from the Chicago Police Department. The several offenses for which he stands convicted properly preclude his continued service. However, in obedience to the order of Judge George Higgins, and in order to facilitate an appeal against that order should this be thought appropriate, the Police Board with great reluctance orders a punishment less than separation.”

The Board then ordered that Kappel be suspended “from July 30, 1984 to and including January 29, 1988.”

On August 11, 1987, the superintendent (Rice) filed a petition for administrative review of the July 9, 1987, order of the Board in the circuit court naming the Board and Kappel as defendants.

On September 2, 1988, Judge Robert L. Sklodowski entered an order which (1) joined Leroy Martin, superintendent of police, as a party plaintiff; (2) reversed the July 9, 1987, findings and decision of the Board “insofar as the suspension of [Kappel] was therein ordered”; and (3) remanded to the Board for an entry of a decision “ordering the discharge of Raymond Kappel from employment.” The record does not show any reasons given by the court. (The order was made nunc pro tunc effective August 9,1988.)

On September 8, 1988, Kappel filed a motion for reconsideration, which the court granted.

On December 5, 1988, Judge Sklodowski entered an order which: (1) vacated the August 9, 1988 (Sept. 2, 1988) order; and (2) remanded to the Board “with directions to impose a sanction less than discharge against Kappel.” Again, the record does not show any reasons given by the court as a basis for its decision.

On December 22, 1988, plaintiffs (Rice and Martin) filed a motion for “entry of final judgment,” arguing that the remand order was unnecessarily duplicative because a penalty less than discharge had already been imposed, and Kappel had never challenged that decision of the Board.

On March 15, 1989, the court granted plaintiffs’ “motion for entry of final judgment” and entered an order which: (1) “affirmed and deemed final” the Board’s July 9, 1987, suspension order; (2) vacated the December 5, 1988, trial court order remanding to the Board; and (3) found no just reason or cause for the delay of appeal from the order.

On April 11, 1989, plaintiff (Rice) filed a notice of appeal from the March 15, 1989, order affirming the Board’s suspension of Kappel. The notice of appeal states: “By this appeal, the respondent [police superintendent] will ask the Appellate Court to reverse the decision of the circuit court and reinstate Raymond Kappel’s discharge.”

Opinion

The police superintendent contends that the circuit court erred in overturning Kappel’s discharge because the Board’s decision to discharge Kappel was not arbitrary, unreasonable or unrelated to the needs of the Chicago police department. He asks that we reverse the circuit court decision and reinstate the Board’s original decision discharging Kappel.

Kappel counters that the Board’s discharge was arbitrary, unreasonable and did not serve the purposes of the police department, because Kappel’s misconduct in 1981 was “a brief, unfortunate episode in an otherwise exemplary career,” and because he has “atonefd] for his mistakes” since that time. Kappel argues in his brief that he “established his abilities as a policeman over a ten year period before becoming enmeshed in the federal investigation of Michael Gallagher.” (Kappel does not argue that suspension is improper, and in fact asked the circuit court to affirm the SVa-year suspension.)

The scope of review of an administrative agency’s decision regarding discharge requires a two-step analysis. (Kloss v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 252, 449 N.E.2d 845; Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 426 N.E.2d 885.) First, the court must determine if the agency’s findings of fact are contrary to the manifest weight of the evidence. (Kloss v. Board of Fire & Police Commissioners, 96 Ill. 2d 252, 449 N.E.2d 845; Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n, 85 Ill. 2d 547, 426 N.E.2d 885.) In applying this rule of law, the findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct. Ill. Rev. Stat. 1989, ch. 110, par. 3—110.

The second step in the court’s analysis is to determine if the findings of fact provide a sufficient basis for the agency’s conclusion that cause for discharge does or does not exist. Kloss v. Board of Fire & Police Commissioners, 96 Ill. 2d 252, 449 N.E.2d 845; Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n; Carrigan v. Board of Fire & Police Commissioners (1984), 121 Ill. App. 3d 303, 459 N.E.2d 659.

In the present case, we are not concerned with the first prong of the test, i.e., whether the manifest weight of the evidence supported the factual findings of the Board. Kappel does not contend that the factual findings of the Board are against the manifest weight of the evidence. Indeed, those findings are predicated largely upon the facts which have been stipulated to by the parties.

Unlike the first step of the analysis, in the second step, the agency’s findings as to whether Kappel’s misconduct provided cause for discharge are not subject to a manifest weight of the evidence test. (See Jenkins v. Universities Civil Service Merit Board (1982), 106 Ill. App. 3d 215, 435 N.E.2d 804, citing Fox v. Civil Service Comm’n (1978), 66 Ill. App. 3d 381, 383 N.E.2d 1201.) The proper standard of review for the second prong is: “[T]he agency’s decision as to cause will not be reversed unless it is arbitrary, unreasonable, or unrelated to the requirements of service.” (Department of Mental Health, 85 Ill. 2d at 552; Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 252, 449 N.E.2d 845.) The trial court and the appellate court are bound by the same standard of review. Blunier v. Board of Fire & Police Commissioners (1989), 190 Ill. App. 3d 92, 107, 545 N.E.2d 1363.

A police officer may not be discharged without “cause.” (Ill. Rev. Stat. 1985, ch. 24, par. 10—1—18(a).) “Cause” for discharge has been judicially defined as “some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding the position.” Department of Mental Health, 85 Ill. 2d at 551; Rispoli v. Police Board (1989), 188 Ill. App. 3d 622, 549 N.E.2d 1063; O’Malley v. Board of Fire & Police Commissioners (1989), 182 Ill. App. 3d 1019, 538 N.E.2d 888; Kvidera v. Board of Fire & Police Commissioners (1989), 192 Ill. App. 3d 950, 549 N.E.2d 747; Glenville v. Police Board (1988), 177 Ill. App. 3d 583, 532 N.E.2d 490; Allman v. Police Board (1986), 140 Ill. App. 3d 1038, 489 N.E.2d 929; Carrigan v. Board of Fire & Police Commissioners, 121 Ill. App. 3d 303, 459 N.E.2d 804; Jenkins v. Universities Civil Services Merit Board, 106 Ill. App. 3d 215, 435 N.E.2d 804; Nolting v. Civil Service Comm’n (1955), 7 Ill. App. 2d 147, 129 N.E.2d 236.

An administrative tribunal’s finding of cause for discharge commands respect (Walsh v. Board of Fire & Police Commissioners, 96 Ill. 2d at 105, 449 N.E.2d 115; Carrigan v. Board of Fire & Police Commissioners, 121 Ill. App. 3d 303, 459 N.E.2d 659) and “substantial” or “considerable deference” (Walsh v. Board of Fire & Police Commissioners, 96 Ill. 2d at 106; Blunier v. Board of Fire & Police Commissioners, 190 Ill. App. 3d at 107). The Board has “considerable latitude” (Rispoli v. Police Board (1989), 188 Ill. App. 3d at 638) and “considerable discretion” (Kvidera v. Board of Fire & Police Commissioners, 192 Ill. App. 3d at 950) in determining what constitutes cause for discharge.

The Board’s decision will stand even if the court were to consider another sanction more appropriate. (Walsh v. Board of Fire & Police Commissioners, 96 Ill. 2d at 106; Kvidera v. Board of Fire & Police Commissioners, 192 Ill. App. 3d 950, 549 N.E.2d 47; Carrigan v. Board of Fire & Police Commissioners, 121 Ill. App. 3d 303, 459 N.E.2d 659.) The court cannot sit as a supercommission in reviewing the punishment imposed. (Nolting v. Civil Service Comm’n, 7 Ill. App. 2d at 153.) It is the Board, rather than the court, which is best able to determine the effect of the officer’s conduct on the proper operation of the department. (Jones v. Civil Service Comm’n (1979), 80 Ill. App. 3d 74, 76, 399 N.E.2d 256.) The wisdom, necessity or propriety of any action regarding the administration of a police force is within the province of the municipality. Braje v. Board of Fire and Police Commissioners (1985), 139 Ill. App. 3d 90, 487 N.E.2d 91.

We note that the Board did not articulate a full rationale underlying its disciplinary decisions, although it would be helpful to the reviewing courts. Nevertheless, we must review the record “in light of the conduct meant to be penalized by [the] rule” which Kappel was found guilty of violating (Harrison v. Civil Service Comm’n (1953), 1 Ill. 2d 137, 149, 115 N.E.2d 521) and determine whether a reasonable and nonarbitrary rationale relating to the needs of the service supports the sanction of discharge.

Kappel was found guilty of violating Rule 2 of the police department. That rule prohibits “[a]ny action or conduct which impedes the department’s efforts to achieve its policy and goals or brings discredit upon the department.” The department’s underlying policy and goals require it to protect the lives and property of the public by enforcing the criminal code and city ordinances. (Davenport v. Board of Fire & Police Commissioners (1972), 2 Ill. App. 3d 864, 869, 278 N.E.2d 212.) This task requires the police department to surmount many difficulties because of the numerous problems confronting a large metropolitan city police force. Davenport v. Board of Fire & Police Commissioners, 2 Ill. App. 3d at 869; Nolting v. Civil Service Comm’n, 7 Ill. App. 2d at 160 (many enforcement difficulties confront police departments in large metropolitan area).

Thus, in order to accomplish the task, the “discipline and efficiency” of the department referred to above in the definition of “cause” are “not only vital but absolutely essential.” (Davenport v. Board of Fire & Police Commissioners, 2 Ill. App. 3d at 869.) Discipline enables the department, which “in many respects resembles a military force in that there is the same necessity of discipline” (DeGrazio v. Civil Service Comm’n (1964), 31 Ill. 2d 482, 488, 202 N.E.2d 522; Harrison v. Civil Service Comm’n, 1 Ill. 2d at 153; Nolting v. Civil Service Comm’n, 7 Ill. App. 2d at 160), to “be staffed with well trained and organized personnel” and ensure the “proper functioning of the department” (Harrison v. Civil Service Comm’n, 1 Ill. 2d at 153).

In addition, discipline is “vital *** not only for the members of the department, but [also] in order to maintain the respect of the public, without which the department would become incompetent and demoralized.” (DeGrazio v. Civil Service Comm’n, 31 Ill. 2d at 488, citing Nolting v. Civil Service Comm’n, 7 Ill. App. 2d at 160. See also Davenport, 2 Ill. App. 3d at 869-70 (“if discipline were absent, the Department would lose the respect of the public and should this occur the department would become incompetent and demoralized”).) Thus, “the discharge of a police officer for conduct unbecoming to the department is not only for the purpose of punishing the officer, but for the protection of the public,” which must maintain respect for the department. DeGrazio v. Civil Service Comm’n, 31 Ill. 2d at 488; Harrison v. Civil Service Comm’n, 1 Ill. 2d at 153.

The essence of the misconduct for which Kappel was found guilty focuses directly upon Kappel’s failure to respect the law which the public trusts Kappel to enforce for its protection. “It is apparent that a police officer who does not abide by the laws that he has a duty to enforce will impair the discipline and efficiency of the police force.” (Jones v. Civil Service Commission, 80 Ill. App. 3d at 76; Sheehan v. Board of Fire & Police Commissioners (1987), 158 Ill. App. 3d 275, 290, 509 N.E.2d 467 (discharge upheld; officer must obey laws he is sworn to uphold).) Kappel was found guilty of possession and sale of an unregistered handgun, with the serial number removed, to a stranger referred to him by fellow officer Gallagher, a “federal firearms dealer”; possession of an unregistered, automatic rifle sold to him by Gallagher; and possession of an unregistered, semi-automatic rifle sold to him by fellow officer Guerrero. The Board could reason that this conduct evidenced a disrespect for the law.

Courts have upheld the discharge of police officers for offenses similar in nature to the offenses here, where the misconduct manifested a disrespect for the law and tended to bring discredit upon the department. See, e.g., DeGrazio v. Civil Service Comm’n, 31 Ill. 2d at 489 (discharge of Chicago police lieutenant upheld; court found “[i]t does not require an expert opinion to establish that” the officer “brought ridicule to the department” when he went to Europe with a man whose “reputation was bad” and who had been seen “meeting with known criminals and hoodlums at a certain bar and restaurant” and who had invited “notorious criminals” to parties at his home, accounts of which parties were published in Chicago newspapers); Rispoli v. Police Board, 188 Ill. App. 3d at 638 (discharge upheld where officer showed disrespect for the law by selling used parts from stolen cars recovered by the police to his own car repair business; conduct was “neither trivial nor unrelated to what the public has a right to expect from a police officer”); Sheehan v. Board of Fire & Police Commissioners, 158 Ill. App. 3d at 290 (discharge upheld where officer failed to “abide by the laws which he has a duty to enforce” and was found to have “committed the criminal offenses of theft and attempted theft” (158 Ill. App. 3d at 279) and showed a “continuous pattern and practice of deception of off-duty employers” (158 Ill. App. 3d at 290) and acted in a way unbecoming to an officer when he repeatedly falsely represented that he was working as a security guard for two different employers at two different places at the same time and was being paid on both payrolls); Davenport, 2 Ill. App. 3d at 869 (discharge upheld where officer attempted “to take the law into his own hands” by knocking down and hitting an individual with whom he was arguing).

Even if Kappel’s sale of the $100 handgun were not considered, possession alone of the handgun, along with the two rifles, exacerbated by the unlawful firing of an unregistered automatic weapon, would constitute a lack of respect for the law particularly inappropriate in a police officer, which undermines public confidence in the judgment and intelligence of law enforcement officers. Allman v. Police Board (1986), 140 Ill. App. 3d 1038, 489 N.E.2d 929 (unregistered firearm used by officer). See also Glenville v. Police Board, 177 Ill. App. 3d at 586.

By selling the unregistered handgun, in addition to manifesting a general disrespect for the law and undermining the public’s confidence in the judgment of law enforcement officers, Kappel committed an act which could potentially endanger members of the public. He placed an illegal weapon in the hands of unknown persons. It would therefore not be arbitrary or unreasonable for the Board to find cause to discharge Kappel particularly if one considers the impact on members of the public who might discover that a weapon subsequently used in an armed robbery or murder was purchased from a police officer.

Police officers, more than other public servants, must exhibit and maintain respect for the dangerous nature of weapons generally. (See, e.g., Jenkins v. Universities Civil Service Merit Board, 106 Ill. App. 3d 215, 435 N.E.2d 804 (respect for weapons is paramount to efficient and disciplined police department; harm that may result from misuse of a gun, intended or accidental, is great); Walsh v. Board of Fire & Police Commissioners, 96 Ill. 2d at 106 (court found that “[n]othing can undermine public confidence in the ability and good judgment of police officers more than the misuse of firearms”); Carrigan v. Board of Fire & Police Commissioners, 121 Ill. App. 3d 303, 459 N.E.2d 659 (officer properly discharged where he misused his gun; respect for weapons is paramount to an efficient and disciplined police department); Ritenour v. Police Board (1977), 53 Ill. App. 3d 877, 369 N.E.2d 135 (officer properly discharged where he fired gun at a street lamp in an alley).) The sale of guns, unlike a single incident of weapons misuse, as in the case of an officer’s improperly drawing a service revolver while intoxicated, has a continuing effect because the unregistered, illegally possessed gun has been placed in circulation and it will continue to be used, most probably for criminal purposes.

An additional factor the Board was free to consider was the fact that such public confidence would be further undermined by Kappel’s having spoken about and showed the handgun and rifles either directly to, or in the presence of, other people including Van Amburgh, two women who were at Kappel’s home, Guerrero, Reggie Humphries, an unidentified officer, Gallagher’s nephew, and Gallagher himself. See Kvidera v. Board of Fire & Police Commissioners, 192 Ill. App. 3d at 965 (discharge upheld; conduct affected members of community and thus could undermine public confidence in police department and impede its efforts to maintain honesty and integrity).

This was not a chance meeting between two gun collectors. Kappel permitted Gallagher to put him into contact with Van Amburgh, a potential customer. The Board was aware that Kappel was cognizant enough of the illegal nature of his activities that, after telephoning Van Amburgh at Gallagher’s suggestion, Kappel expressed concern about talking with Van Amburgh on the telephone because “he did not know who he was talking to [ ] [and] [h]e felt that he had phone problems.” Kappel advanced his relationship with Van Amburgh several weeks after the sale of the handgun, by again arranging to meet at a parking lot, where they discussed “different types of weapons.” While there is no evidence that Kappel offered the automatic rifle to Van Amburgh for sale, the Board was aware that the men arranged to meet a third time at a parking lot, and this time Kappel brought an automatic rifle and ammunition, and after midnight they drove to the canal to fire the gun for some unknown purpose — presumably either to test the weapon for a potential sale, or for recreation. All of this conduct evidences a more flagrant disregard for the law than simply, e.g., a “gun buff” maintaining a private collection in his home.

The Board could also note that Kappel’s conduct described above persisted over a period of time necessary to accumulate the guns in question and negotiate the sale with Van Amburgh and make arrangements to meet with Van Amburgh several times. This was not a single, impulsive act. It required time, planning, telephone calls, meetings, initiative and preparation.

In addition to focusing directly upon public safety and public confidence, the Board could also legitimately focus on the effect which its sanction of Kappel may have on the other officers in the department. The Board might properly find that discharge would have a greater deterrent effect on other officers in the department than suspension and thereby would enhance the protection of the public. The Board is in the best position to determine the impact of one officer’s discharge upon other officers and whether it would deter them from taking advantage of the many illicit opportunities generally available to police officers. (See Nolting v. Civil Service Comm’n, 7 Ill. App. 2d 147, 129 N.E.2d 236.) This concern about the impact on the discipline and morale of fellow officers is especially relevant where at least three other police officers and several members of the public were aware either of Kappel’s illegal possession of guns or of the gun-related contacts between Van Amburgh and Kappel.

Kappel argues that he never directly threatened violence to another person, as borne out by the fact that the department let him “carr[y] a gun as part of his duties as a Chicago Police Officer for three years after the events of April and May, 1981.” The crux of Kappel’s misconduct, while it could be broadly characterized as the “misuse of weapons” in that he sold and possessed illegal weapons, differed considerably from the typical impulsive misuse of service weapons evidenced in the following cases. See, e.g., Walsh v. Board of Fire and Police Commissioners, 96 Ill. 2d 101, 449 N.E.2d 115 (officer must show considerable care in handling and using his service revolver because he has access to the weapon every day of his career; officer in Walsh intentionally discharged his gun at the floor in a close proximity to his wife and a friend, and then accidentally fired the gun into his friend’s face); McCoy v. Kamradt (1985), 136 Ill. App. 3d 551, 483 N.E.2d 544 (officer draws gun and points at boys with BB gun); Carrigan v. Board of Fire & Police Commissioners, 121 Ill. App. 3d 303, 459 N.E.2d 659 (officer becomes enraged with wife, draws gun and shoots toilet after wife throws marijuana into toilet; failed to recognize possibility of ricochet with wife standing a few feet from toilet); Kloss v. Board of Fire & Police Commissioners, 96 Ill. 2d 252, 449 N.E.2d 845 (officer threatens suicide, holding arm of his daughter while drawing gun and threatening other officers); Jenkins v. Universities Civil Service Merit Board, 106 Ill. App. 3d 215, 435 N.E.2d 804 (when officer was stopped for drinking while driving State vehicle, he threatened other police officers with his gun).

This is clearly not such a case. Here, Kappel exhibited neither impulsive nor emotionally charged behavior. Instead, any “misuse of weapons” in this case was the product of deliberate, calculated dealings and in the presence of members of the public and other officers, involving the possession of a semi-automatic and an automatic rifle, and the sale of an automatic handgun.

Kappel nevertheless argues the inconsistency of the Board’s seeking to remove him from the department when it permitted him to wear a badge for three years after the department was aware of his misconduct in 1981. The delay in time, however, is not by itself a dis-positive factor here. Under normal circumstances, without the pendency of this action and supervision during the 3x/2 years of undercover work, Kappel would not have had that opportunity. It does not contradict the Board’s conclusion that there was a need to discharge Kappel in order to punish Kappel; to effectively deter similar acts of misconduct by other officers; and to maintain the public’s confidence in the department. Moreover, while the department or the Board may very well have trusted Kappel to perform his undercover duties under Federal and State supervision, it does not dispel the possibility of future misconduct in ordinary police activities without such supervision.

Kappel argues further that the discharge is unreasonable because of his drinking problems and “unrelenting emotional upheaval” due to his divorce, his father’s suicide and his mother’s death. The evidence, however, does not show that Kappel’s misconduct was caused by any mental or emotional disorder, whether temporary or otherwise. (Cf, e.g., Walsh v. Board of Fire & Police Commissioners, 96 Ill. 2d 101, 449 N.E.2d 115 (court remanded for more medical evidence where record indicated misconduct of officer was probably result of psycho logical problems for which he was on disability suspension at the time the misconduct occurred).) There was no evidence that Kappel’s alcoholism led him to engage in the business of selling illegal weapons. He presented no expert testimony regarding any causal connection between his drinking problems or for that matter any psychological or emotional disorders, and his misconduct. (See Glenville v. Police Board, 177 Ill. App. 3d at 587 (no evidence that calculated plan to steal was caused by alcoholism; unlike Walsh, no evidence which would prompt the court to look for further details of his alcoholism).) In addition, we note that Kappel himself testified that he “wasn’t a confirmed alcoholic.” Three of his superiors testified that Kappel’s performance on the job was excellent, and Hensley specified that there was no change in Kappel’s performance during April and May of 1981. In his brief, Kappel admits that his “job performance remained unaffected” by the drinking, and it only “clouded his judgment with respect to off-duty activities.” Given this evidence, the Board was not required to find that any psychological stress or drinking problems caused the misconduct or required further inquiry. See Glenville v. Police Board, 197 Ill. App. 3d 583, 532 N.E.2d 490 (distinguishing Walsh); McCoy v. Kamradt, 136 Ill. App. 3d at 557-58 (distinguishing Walsh).

Kappel also focuses on his cooperation with the government in the undercover investigation. The unique circumstances involving Kappel’s working undercover for several years following his misconduct permitted Kappel the necessary time and opportunity to earn the praise of three superiors and many commendations. Notwithstanding these unusual circumstances, the Board is not precluded from emphasizing the misconduct in 1981, when Kappel committed the acts with which he was charged. The Board was also free to consider that Kappel’s cooperation with the government was originally induced by a promise of immunity from prosecution for very serious criminal offenses. In return for his cooperation, Kappel was spared a possible felony conviction.

In regard to Kappel’s otherwise exemplary record prior to 1981, while the Board may consider such evidence in mitigation, it is not required to place dispositive weight on such evidence. The Board is not required to suspend, rather than discharge, an officer solely because he has provided numerous years of good service, even where some of those years are subsequent to the misconduct. See, e.g., Allman v. Police Board, 140 Ill. App. 3d 1038, 489 N.E.2d 929 (discharge upheld for carrying firearm while drinking, possessing an unregistered firearm and unnecessarily displaying or pointing firearm at several people, notwithstanding officer’s 23 years of service and numerous commendations); Carrigan v. Board of Fire & Police Commissioners, 121 Ill. App. 3d 303, 459 N.E.2d 659 (discharge upheld for misuse of gun notwithstanding rank and years as officer). See also O’Malley v. Board of Fire & Police Commissioners, 182 Ill. App. 3d at 1025 (demotion upheld for negligence while on duty, notwithstanding 17 years of unblemished record).

In regard to all of the mitigating evidence presented by Kappel generally, the question before us is not whether this court would conclude in view of the mitigating circumstances that a different penalty would have been more appropriate. (Sutton v. Civil Service Comm’n (1982), 91 Ill. 2d 404, 411, 438 N.E.2d 147.) These factors were before the Board for it to consider in selecting the appropriate discipline. (Kloss v. Board of Fire and Police Commissioners, 96 Ill. 2d 252, 449 N.E.2d 845.) Our review is narrowly restricted to the question of whether, in view of all the circumstances presented, the Board’s choice of discharge was unreasonable, arbitrary or unrelated to the needs of the service. Kloss v. Board of Fire & Police Commissioners, 96 Ill. 2d 252, 449 N.E.2d 845.

Even if we would not have been led to discharge Kappel pursuant to the mitigating evidence presented, which might well have been the case, this court is bound by the strict standard of review, and we cannot say that the Board’s decision to discharge Kappel is arbitrary, unreasonable, or unrelated to the requirements of the service. The evidence would justify a finding of a violation of the Department’s Rule 2: “Any action or conduct which impedes the department’s efforts to achieve its policy and goals or brings discredit upon the department.” Kappel’s conduct could reasonably be viewed as “some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding the position.” Department of Mental Health, 85 Ill. 2d at 551.

Kappel relies on Kreiser v. Police Board (1977), 69 Ill. 2d 27, 370 N.E.2d 511, to support his argument that his conduct did not warrant discharge. In Kreiser, the court found discharge was unwarranted where a police officer was discharged for operating his vehicle without a proper license, disobeying the order of a superior officer, making a false oral statement to a superior officer and leaving the police station without being properly relieved and without logging out. In contrast, the conduct here, involving the illegal possession of automatic and semi-automatic rifles and the illegal sale of an unregistered automatic handgun with an obliterated serial number, is considerably more serious than the failure to license a car or not logging out at the police station.

Kappel’s reliance on Kirsch v. Rochford (1977), 55 Ill. App. 3d 1042, 371 N.E.2d 899 (court found police officer’s discharge was unwarranted where he was refused permission to board a plane at O’Hare because of his intoxicated condition), and Massingale v. Police Board (1986), 140 Ill. App. 3d 378, 488 N.E.2d 1289 (court found police officer’s discharge was unwarranted where she had been intoxicated while off duty, and driving a car with two open containers of alcohol), is misplaced. As previously noted, Kappel’s conduct, unlike that of the officers in Kirsch and Massingale, was not the result of any transitory mental impairment or addiction.

Finally, we have considered the question of precisely which order of the Board is before us on appeal, notwithstanding the parties’ presumption, without discussion, that it is the Board’s 1985 and 1986 discharge orders and not the final July 9, 1987, suspension order entered by the Board under protest, to which we are required to apply the relevant standard of review.

Only final orders of the Board can be appealed in an administrative review proceeding. (Ill. Rev. Stat. 1989, ch. 110, par. 3—102.) The applicable standard of review must be applied to that final order. No other case has discussed the issue of which order is to be examined on appeal where the final administrative agency order was entered under protest and in compliance with a circuit court remand order. In two such cases, however, this court, albeit without discussion, presumed the appeal to be from the administrative agency’s original, preferred decision — not the agency’s final, mandated decision entered after remand.

In Kvidera v. Board of Fire & Police Commissioners, the police board discharged a police officer. The circuit court found the sanction too severe and remanded with instructions to impose an appropriate lesser sanction. On remand, the police board again discharged the officer. The circuit court refused to confirm the discharge. The board appealed, and this court dismissed the appeal because the order was not appealable. The circuit court again remanded to the board to impose a penalty less than discharge. The board finally complied by suspending the officer for 30 days. The board appealed. Without discussion, this court applied the “arbitrary and unreasonable” standard of review to the police board’s original discharge order — not to the forced suspension order. We “reverse[d] the court’s order to the Board to impose a penalty exclusive of terminations” and we “modif[ied] the Board’s disciplinary decision to impose a penalty of discharge.” Kvidera, 192 Ill. App.. 3d at 965.

Similarly, in Brown v. Civil Service Comm’n (1985), 133 Ill. App. 3d 35, 478 N.E.2d 541, the Civil Service Commission discharged a court reporter employed by the Industrial Commission from his position. The circuit court found the sanction too severe and remanded with instructions to reinstate the employee and impose a lesser sanction. On remand, the Civil Service Commission complied by reinstating the employee and imposing a 120-day suspension. The circuit court affirmed the modified penalty, and the Industrial Commission appealed to the appellate court. Without discussion, this court applied the “arbitrary and unreasonable” standard of review to the Civil Service Commission’s original discharge order — not to the forced suspension order. We “affirm[ed] the decision of the trial court, reversing the decision of the Civil Service Commission and remand[ed] for imposition of a lesser penalty.” Brown, 133 Ill. App. 3d at 42.

In view of Kvidera and Brown, we concur with the parties that the essence of the matter appealed from is the circuit court’s 1985 and 1986 orders directing the Board to vacate its March 1985, January 1986, and June 1986, orders discharging Kappel and to impose a lesser penalty; and not the circuit court’s March 15, 1989, affirmance of the Board’s July 9, 1987, suspension order.

For the foregoing reasons, the decision of the circuit court ordering the Board to impose a lesser penalty than discharge is reversed. We remand the cause to the Board, with leave to vacate the order imposing the suspension and to reinstate its earlier order of discharge. However, we note that, pursuant to Jones v. Board of Fire & Police Commissioners (1984), 127 Ill. App. 3d 793, 797, 469 N.E.2d 393 (it is within the Board’s authority on remand to exercise its discretion in accordance with the law, provided that the Board does not act in any way which would be contrary to the holdings stated herein), the Board is not compelled on remand to reinstate its earlier discharge order, if the Board under its present evaluation chooses instead to let the lesser penalty stand.

Circuit court judgment reversed; cause remanded to Police Board with leave to reinstate its prior discharge order.

LORENZ, P.J., and MURRAY, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    RUSSELL GEASLEN et al., Plaintiffs-Appellants, v. BERKSON, GOROV AND LEVIN, LTD., et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—89—2026
    Opinion filed September 30, 1991.
    Rehearing denied November 19, 1991.

      Miller, Forest & Downing, Ltd., of Glenview (Robert J. Downing, Marc H. Heisler, and Marsha Y. Phillips, of counsel), for appellants.
    Haskell & Perrin, of Chicago (John J. Lynch and Daniel G. Jordan, of counsel), for appellees.
   JUSTICE GORDON

delivered the opinion of the court:

This action was brought to recover damages occasioned by the alleged negligence and breach of fiduciary duty by the defendant attorneys in issuing their letter of opinion to plaintiffs. The trial court granted, with prejudice, defendants’ motion to dismiss, under section 2—615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615), for failure to state a cause of action. This appeal is taken from that dismissal. For the reasons stated below, we affirm.

Plaintiffs, Russell Geaslen, Hazel Geaslen, Richard Geaslen, Scott Geaslen, and Sandra Geaslen, individually and as custodian for Richard L. Geaslen and Tracy Geaslen, minors, were the owners of all the shares of stock in Triad Sales Corporation (Triad). Defendant Howard Levin is an attorney and a partner in the defendant law firm of Berkson, Gorov, and Levin, Ltd.

For several months preceding August 16, 1985, plaintiffs negotiated with Burton L. Stern for the purchase from plaintiffs of all the capital stock of Triad. Stem was acting on his own behalf and on behalf of an entity known as Nationwide Trust. Defendants acted as attorneys for Stem and Nationwide in connection with the transaction. Plaintiffs were represented by the law firm of Coffield, Ungaretti, Harris & Slavin.

Nationwide proposed to purchase all of Triad’s capital stock from plaintiffs for an aggregate consideration of $1,750,020. The consideration was payable at closing on August 16, 1985, by delivery of a certified or cashier’s check in the amount of $450,000 payable to plaintiffs, and by delivery of Nationwide’s promissory notes in the amount of $1,300,020 payable to plaintiffs. To secure payment of these notes, Nationwide was to deliver to the plaintiffs a pledge agreement whereby the purchased stock was pledged as security for payment. The stock certificates, together with instruments of assignment, were also to be delivered to plaintiffs pursuant to the pledge agreement. Plaintiffs were also to be granted a first security interest in all of Triad’s assets.

The purchase agreement between plaintiffs and Stern, which was drafted by plaintiffs’ attorneys, required defendants to deliver to plaintiffs at closing an attorney’s opinion letter “in form and substance reasonably satisfactory to Sellers and their counsel.” The required contents of the letter were apparently set out in the purchase agreement negotiated by the parties. That agreement, however, was not included by plaintiffs in their complaint.

Pursuant thereto an opinion letter was delivered to plaintiffs in care of their attorneys at closing. This opinion letter reads as follows:

“The following is the opinion of the firm of Berkson, Gorov & Levin, Ltd., counsel for Nationwide Trust and is furnished to you pursuant to the Agreement of Sale as above identified and dated this 16 day of August, 1985.
1. Purchaser has full legal power and authority to enter into and perform this Agreement and the other agreements contemplated hereby;
2. Nationwide is a validly existing trust, Todd Stern is the validly appointed and presently acting sole Trustee of Nationwide and Todd Stern Trustee is empowered under the terms of the trust to execute this Agreement and the instruments and agreements contemplated hereby and purchase the Purchased Shares;
3. The Agreement and the other agreements contemplated thereby have been duly executed and delivered by and constitute valid and binding obligations of Purchaser and are enforceable in accordance with their terms, except to the extent that the enforcement thereof may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally, whether now or hereafter in effect, provided that no opinion shall be expressed as to the specific remedy that any court, governmental authority or arbitrator may grant, impose or render; and the execution and delivery thereof by Purchaser, and the performance by Purchaser of its respective obligations thereunder do not and will not result in a breach or termination of or constitute a default under any indenture, agreement or other instrument, or any law, judgment, order, writ, injunction, ruling or decree of any jurisdiction, court or governmental body, to which either Purchaser is a party or by which it or any of its properties may be bound, and which is known to such counsel and;
4. Berkson, Gorov & Levin, Ltd., has no reason to believe that any representation or warranty of Purchaser contained in the Agreement is untrue or misleading in any material respect.
5. All terms used herein which are defined in the Agreement shall have the meanings herein as are ascribed to such terms in the Agreement.”

The sale closed on August 16, 1985. $450,000 was paid to plaintiffs at closing, along with Nationwide’s promissory notes of $1,300,020 payable to plaintiffs, along with pledge and security agreements. Nationwide subsequently defaulted on the notes, and Stem filed a petition for relief under the Bankruptcy Code. Later, it was also revealed that, prior to the closing, Stern had negotiated for a line of credit with Allegheny International Credit Corporation to finance the purchase, and had granted Allegheny a first security interest in Triad’s assets in conflict with the prior security interest subsequently granted plaintiffs under the terms of the stock purchase transaction.

Plaintiffs filed a two-count complaint against defendants, alleging negligence in preparation of the opinion letter in count I and breach of fiduciary duty to plaintiffs in count II. In the first count, plaintiffs alleged that defendants had a duty to them “to exercise a reasonable degree of care and skill in their investigation of the matters which were the subject of the letter of opinion and in making the assertions and representations, and in giving the opinions, contained therein.” The complaint alleged that defendants were negligent in that they “failed to perform or cause to be performed a proper investigation of the credit, legal and financial histories of Stern and Nationwide.” According to the complaint, had defendants performed such investigation, they would have learned that Stern was “commercially and financially and morally unreliable and a poor credit risk” and would have had “reason to believe that the representations and warranties of their clients in the stock purchase transaction were or may have been materially untrue or misleading.” There are no allegations in the complaint, however, of any specific untrue or misleading representations by Stern. Nor are there any allegations that the opinion letter itself contains any misrepresentations by defendants. Nor were any such allegations made in proceedings before the trial court.

In the second count of the complaint, which incorporates the factual allegations of count I, plaintiffs allege that defendants owed them a fiduciary duty in respect to the investigations, disclosures and opinions made in connection with the letter, and that defendants breached that duty by failure to investigate and reveal Stern’s negative legal, credit and financial history.

Defendants filed a motion to dismiss the complaint, asserting that count I failed to state a cause of action as the defendants owed no duty of care to the plaintiffs, but only to their own client. As to count II, defendants asserted that no fiduciary relationship existed between them and plaintiffs, and therefore no cause of action existed for breach of a fiduciary duty. The trial court granted defendants’ motion, finding that count I failed to allege that defendants’ primary purpose was to benefit the plaintiffs and therefore failed to state a cause of action. The court further found that no fiduciary relationship exists between an individual and the attorney for his opponent, and therefore dismissed the second count. Plaintiffs appeal from the dismissal.

Opinion

As a general rule, an attorney owes a duty only to his client. (National Savings Bank v. Ward (1880), 100 U.S. 195, 25 L. Ed. 621.) However, in the course of the representation of a client, the attorney is often required to perform services for his client which also involve third parties. In such cases, the first question is whether a duty arises to such a third party, and if so, the question becomes one of reconciling the potentially conflicting duty to the client with any duty the attorney may owe to the third party.

Both parties to this appeal rely on Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96, in which the Illinois Supreme Court considered the issue of an attorney’s liability to a nonclient for negligence. The court there recognized that the attorney’s paramount obligation and duty are to his client. (Pelham, 92 Ill. 2d at 20, 440 N.E.2d at 99.) It acknowledged, however, the trend in tort law to abolish privity of contract as a prerequisite to the establishment of a duty. “ ‘Thus, tort liability will henceforth be measured by the scope of the duty owed rather than the artificial concepts of privity.’ ” (Pel ham, 92 Ill. 2d at 20, 440 N.E.2d at 99, quoting Rozny v. Marnul (1969), 43 Ill. 2d 54, 62, 250 N.E.2d 656, 660.) In the absence of contractual privity, an attorney’s duty to someone other than a client will arise if

“[plaintiffs can] allege and prove facts demonstrating that they are in the nature of third-party intended beneficiaries of the relationship between the client and the attorney ***. [Citations.] By this we mean that to establish a duty owed by the defendant attorney to the nonclient the nonclient must allege and prove that the intent of the client to benefit the nonclient third party was the primary or direct purpose of the transaction or relationship. [Citation.]
Analogizing the scope of the duty to the concept of a third-party direct beneficiary serves the purpose of limiting the scope of the duty owed by an attorney to nonclients. The key consideration is the attorney’s acting at the direction of or on behalf of the client to benefit or influence a third party.” Pelham, 92 Ill. 2d at 20-21, 440 N.E.2d at 99-100.

Plaintiffs in that case were the children of Loretta and George Ray; the defendant was an attorney who represented Loretta in her divorce action against George. The divorce decree required George to maintain his children as beneficiaries on his life insurance policies which he carried through his employer. George remarried and named his second wife as beneficiary on the policies. After George’s death, the children sued their mother’s attorney, alleging that he was negligent in failing to notify George’s employer of the divorce decree provision requiring that the children be the beneficiaries of the policies. (Pelham, 92 Ill. 2d at 16-17, 440 N.E.2d at 97.) The court concluded that under the facts of the case, the defendant owed no duty to the children. The children were not in the nature of third-party intended beneficiaries. The attorney was hired for the primary purpose of obtaining a divorce for his client, not for the primary purpose of benefiting her children. Pelham, 92 Ill. 2d at 23, 440 N.E.2d at 100-01.

Here, there is no question that the primary purpose of the relationship between defendants and Stem was to protect Stem’s interests and not to benefit plaintiffs. However, when defendants, at Stem’s direction, issued their opinion letter to plaintiffs, there can be little doubt that the letter was intended to benefit plaintiffs and influence their decision by assuring them of the matters set forth in the letter, and thereby help persuade plaintiffs to sell their stock to Nationwide. In such circumstances it is not far reaching to acknowledge that defendants assumed a duty of care towards plaintiffs with respect to the accuracy of matters expressed in the letter. This result would be consistent with the law as set forth in Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656, and Glanzer v. Shepard (1922), 233 N.Y. 236, 135 N.E. 275. Both cases found that a professional (a surveyor in Rozny and a public weigher in Glanzer) who performs a service for his client which foreseeably affects a third party owes a duty of care to that third party. See also Brumley v. Touche, Ross & Co. (1985), 139 Ill. App. 3d 831, 487 N.E.2d 641 (certified public accountant).

The Pelham court recognized the possibility that such a duty of care may arise when it said “[w]e believe a different situation would confront us if this complaint had alleged sufficient facts to show that the defendant had undertaken a duty to notify the insurance company or the husband’s employer of the provision in the divorce decree. In that situation, the attorney may have a duty to exercise reasonable care because his client and the plaintiffs herein could have justifiably relied on that undertaking.” Pelham, 92 Ill. 2d at 24, 440 N.E.2d at 101. See generally Note, Attorneys’ Negligence & Third Parties, 57 N.Y.U. L. Rev. 126 (1982) (when an attorney or other professional undertakes some action and that undertaking foreseeably affects foreseeable third parties, the attorney assumes a duty to exercise due care in that undertaking). See also Fuld, Lawyers’ Standards & Responsibilities in Rendering Opinions, 33 Bus. Law. 1295, 1309 (1978) (“if the lawyer addresse[d] his opinion to a third party, he ha[d] duties to the third party”).

Although we agree with plaintiffs that defendants, by undertaking to render the letter of opinion, owed plaintiffs a duty of care, we disagree on the scope of that duty. Plaintiffs urge that defendants’ duty was to investigate their client’s financial, legal and credit background and to reveal those results to plaintiffs. However, there is nothing in the record before us which would indicate that defendants were required under the agreement between the parties to render an opinion as to Stem’s creditworthiness or his general credibility beyond the scope of the warranties and representations made in the purchase agreement. To find that defendants had a duty to investigate matters or reveal information about their client beyond the scope of what they were required to do in their letter may well conflict with their duty to their own client of undivided loyalty and confidentiality. (See Fuld, Lawyers’ Standards & Responsibilities in Rendering Opinions, 33 Bus. Law. 1295, 1309 (1978) (“a third-party recipient is usually represented by his own lawyer, *** and the opining lawyer’s duties are therefore merely to give his careful opinion on the matters requested”).) Defendants’ only duty here was a duty of care as to the matters requested in the agreement and expressed in the opinion letter.

Where a complaint alleges that an attorney at the request of his client has made a misrepresentation, either negligently or intentionally, in an opinion letter directed to a third party, the trend has been to hold the attorney liable for injuries caused by that misrepresentation. (See, e.g., First Financial Savings & Loan Association v. Title Insurance Co. (N.D. Ga. 1982), 557 F. Supp. 654; Bradford Securities Processing Services, Inc. v. Plaza Bank & Trust (Okla. 1982), 653 P.2d 188; Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976), 57 Cal. App. 3d 104, 128 Cal. Rptr. 901. See generally Treece & Hall, Attorney’s Liability: Negligent Misrepresentations to Third Parties— A Growing Threat, 31 DRI for the Defense 18 (July 1989).) Since the opinion letter was prepared pursuant to the client’s request, there is a lesser concern with the possibility that an acknowledgement of a duty of care to the third party will engender a conflict with the interests of the client. The facts in Greycas, Inc. v. Proud (7th Cir. 1987), 826 F.2d 1560, are consistent with this proposition. Applying Pelham, the court found that a duty of care existed to a nonclient when an attorney issued his opinion letter to a nonclient. There, Crawford, Proud’s brother-in-law, sought a loan from the plaintiff. As a condition to the loan, Crawford was required to furnish a letter from counsel stating that there were no prior liens on the machinery which was to secure the loan. Crawford asked Proud to prepare the letter, which Proud did, stating “I have conducted a U.C.C., tax, and judgment search with respect to the Company *** and *** all units *** are free and clear of all liens or encumbrances ***.” (Greycas, 826 F.2d at 1562.) After Crawford defaulted, it was discovered that the machinery was subject to other earlier liens, and that Proud had not in fact conducted any search for prior liens. In addition, Proud failed to reveal to the plaintiff his relationship to Crawford. Relying on Pelham, the court found that “Crawford hired Proud not only for the primary purpose, but for the sole purpose, of influencing Greycas to make Crawford a loan.” (Greycas, 826 F.2d at 1563.) The duty which Proud owed to Greycas was “a duty to use due care to see that the information was correct,” and Proud breached that duty by stating that he had performed a search for liens and encumbrances when he had not done so. Greycas, 826 F.2d at 1565. See also Crossland Savings FSB v. Rockwood Insurance Co. (S.D.N.Y. 1988), 700 F. Supp. 1274 (attorney liable to nonclient for misrepresentation in opinion letter that limited partners had made paid-in investments to the partnership when in fact no payments had been made).

This, however, is not an action for negligent misrepresentation as was the case in Greycas and Crossland Savings. There are no allegations in the complaint that any information in the letter of opinion itself was incorrect. No allegations have been made by plaintiffs that paragraph 1 regarding the legal power and authority of the purchaser to enter into and perform the agreement is in any way a misrepresentation. Nor have any such allegations been made in regard to paragraph 2, concerning the validity of Nationwide Trust and Stem’s authority as trastee to execute the agreement. Similarly, plaintiffs have not alleged that defendants’ representations in paragraph 3 relating to the validity and enforceability of the agreement are false.

Plaintiffs do, however, allege that if defendants had made the investigation which plaintiffs urge they were under a duty to do, defendants would have had “reason to believe that the representations and warranties of their clients in the stock purchase transaction were or may have been materially untrue or misleading,” the implication being that the fourth paragraph of the opinion letter is therefore a misrepresentation. However, there is nothing in the record indicating what representations or warranties were made by defendants’ clients, nor are there any allegations that any of those representations or warranties were materially untrue or misleading. Defendants’ opinion letter does not vouch for the general credibility or creditworthiness of their client, but rather deals with the reliability of the generally described, yet undisclosed, representations and warranties of the client. Moreover, in response to a specific question by the trial court about paragraph 4, plaintiffs’ counsel admitted that no misrepresentation was alleged. Although plaintiffs, in their brief before this court, contend that if allowed to proceed with the case they will be able to prove that portions of the letter of opinion were untrue, no such allegations were made in the complaint or, for that matter, at any time in the trial court and cannot be made for the first time on appeal. Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 324 N.E.2d 417.

Thus, although defendants had a duty to act with care in writing the opinion letter, that duty did not extend to the investigation and disclosure of matters beyond the scope of the letter. As previously noted, the nature of the attorney-client relationship and the attorney’s duty to represent his client zealously and to protect his client’s confidences dictate that any duty of the attorney to a nonclient whose interests are adverse to those of the client must be carefully delineated. To find that defendants here had a duty to investigate their client’s background and to reveal the results to his adversary would require the defendants to divide their loyalty between their client and the adversary, and conceivably to reveal confidential information which they are ethically prohibited from revealing. We note that the Pelham court was careful to limit that duty so as to mitigate the likelihood of creating a conflict between the duty of an attorney to his own client and his duty to third parties with whom his client is engaged in an arm’s-length transaction. “Where a client’s interest is involved in a proceeding that is adversarial in nature, the existence of a duty of the attorney to another person would interfere with the undivided loyalty which the attorney owes his client and would detract from achieving the most advantageous position for his client.” Pelham, 92 Ill. 2d at 23, 440 N.E.2d at 100.

Notwithstanding the allegations here concerning defendants’ client Stern’s “strongly negative legal, credit, financial and commercial history,” no one has alleged or contended that defendants engaged in any illegal conduct or conspiracies with their client to injure the plaintiffs. Had that been the case, the fact that plaintiffs are nonclients would not insulate the defendant attorneys from liability for their intentional tortious acts. Our code of professional responsibility demands that an attorney represent his client zealously within the bounds of the law. “One may not use his license to practice law as a shield to protect himself from the consequences of his participation in an unlawful or illegal conspiracy.” Celano v. Frederick (1964), 54 Ill. App. 2d 393, 400, 203 N.E.2d 774. See generally 7 Am. Jur. 2d Attorneys at Law §232, at 274 (1980).

In this case, absent any factual allegations that defendants were requested or undertook to investigate their client’s legal, financial and credit background and to reveal the results of that investigation to plaintiffs, or any allegations that the representations which defendants were required to and did make in their letter of opinion were false, we find that plaintiffs’ complaint has failed to state a cause of action in negligence.

The fact that an attorney who, at the request of his client, undertakes to prepare an opinion letter for a third party assumes a duty of care to that third party in regard to the matters expressed in that letter does not, however, make the attorney the third party’s attorney for all purposes, nor, a fortiori, does it make the attorney a fiduciary of the third party. In a case very similar to the one before us, the question of an attorney’s fiduciary duty to a nonclient was considered. (Gold v. Vasileff (1987), 160 Ill. App. 3d 125, 513 N.E.2d 446.) The defendant attorney there represented the sellers in the sale of a busi ness. Plaintiff buyers sued the attorney for breach of fiduciary duty when his client failed to conclude the sale, contending that they reposed great trust and confidence in their opponents’ attorney and the attorney’s representation that the sellers would comply with the terms of the sale. In affirming the dismissal of plaintiffs’ complaint, the court found that the attorney’s duty to zealously represent his client with undivided loyalty precluded any duty towards the client’s adversary. “Defendant owed no fiduciary duties to the buyers, and if the buyers reposed trust and confidence in defendant, it was unreasonably placed and could not be the basis for an equitable type of action founded on breach of a fiduciary or confidential relationship. *** In short, the attorney can have no fiduciary duties to third parties.” Gold, 160 Ill. App. 3d at 127-28, 513 N.E.2d at 448.

Plaintiffs cite Crossland Savings FSB v. Rockwood Insurance Co. (S.D.N.Y. 1988), 700 E Supp. 1274, 1282, where the court said “[w]hen a lawyer at the direction of her client prepares an opinion letter which is addressed to the third party or which expressly invites the third party’s reliance she engages in a form of limited representation.” This representation, plaintiffs urge, created a fiduciary relationship between them and defendants. However, as discussed above, defendants’ “representation” of plaintiffs here was limited to the issuance of the opinion letter, and the duty of care extended only to the matters expressed in that letter.

The other case cited here by plaintiffs is similarly unpersuasive. Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976), 57 Cal. App. 3d 104, 128 Cal. Rptr. 901, applied California’s balancing test to find that an attorney had a duty to reveal to a nonclient his doubts about the subject of his opinion letter, and could be liable for negligence when harm to the nonclient was forseeable. Our supreme court, however, rejected the broad scope of the California balancing approach to an attorney’s duty to a third party, stating “[t]he analogy to third-party direct beneficiaries to determine the duty owed to a nonclient by an attorney in a negligence action provides for a broader scope of liability than privity, but a narrower scope of liability than the balancing approach used in California.” Pelham, 92 Ill. 2d at 21-22, 440 N.E.2d at 99.

Accordingly, for the reasons stated above, we affirm the trial court’s dismissal of this complaint.

Affirmed.

LORENZ, P.J., and McNULTY, J., concur.


author: PRESIDING JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RALPH HARBOLD, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—2849
    Opinion filed September 30, 1991.
    Michael B. Nash, of Chicago, and F. Lee Bailey, Kenneth J. Fishman, and Daniel P. Leonard, all of Bailey, Fishman & Leonard, of Boston, Massachusetts, for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Gael M. O’Brien, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

After his first conviction for murder was reversed on appeal and remanded for new trial (People v. Harbold (1984), 124 Ill. App. 3d 363, 464 N.E.2d 734), a jury again found defendant, Ralph Harbold, guilty of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(1)). He was sentenced to an extended term of 70 years’ imprisonment and he now appeals. We consider the following issues: (1) whether the prosecutor made improper comments during closing argument which were not based on the evidence and prejudiced defendant; (2) whether the denial of defendant’s motion in limine to exclude evidence was manifestly erroneous; and (3) whether defendant was denied a fair trial when he was limited to seven peremptory challenges under Supreme Court Rule 434(d) (134 Ill. 2d R. 434(d)). For the following reasons, we reverse and remand for new trial.

Prior to the second trial, defendant moved in limine to exclude a circular saw and expert testimony relating to blood splatters on the saw, arguing its probative value was outweighed by its prejudicial nature. The motion was denied.

Also prior to trial, when considering motions relating to the opinion reversing defendant’s conviction, a judge warned the assistant State’s Attorney regarding the presentation of motive evidence: “If you go into motive testimony at any time in your case in chief other than what I’ve ruled on, I’m going to hold you in contempt, I’m warning you now so we don’t have any misunderstanding.”

The following testimony from trial is relevant to our decision.

On March 31, 1981, at approximately 7 p.m., Frank Paul was stabbed several times in his business office. Covered in blood, he staggered to a restaurant across the street and told the owner, “I’ve been attacked.” Paul lost consciousness and died within a short time.

Investigating the murder, the police found that the back door to Paul’s office was open. Inside, a trail of blood led to a room where there was evidence of a struggle; however, there was no sign of a forced entry and nothing was missing.

In a search of the surrounding area outside Paul’s office, the police found items which appeared to have blood on them. These items included a pair of rubber gloves, a knife, and a camel-colored sport coat with keys to Paul’s office in the pocket. The left-hand rubber glove had a cut in the area between the thumb and forefinger.

Dr. T.L. An, a pathologist, performed an autopsy on Paul. He testified that Paul received seven stab wounds and 10 cutting wounds, several of which indicated that Paul was attempting to defend himself. In An’s opinion, the wounds could have been caused by a knife with a blade at least four inches long.

Michael Podlecki, a forensic scientist, testified that ABO blood-type analysis showed Paul’s blood was type A and defendant’s blood was type O. All the blood samples found at or near the scene were either type A or type O. Both type A and type 0 were found inside Paul’s office and on the camel-colored sport coat. Type A was found on the knife, and type 0 was found on the rubber gloves. In addition to blood-type analysis, Podlecki testified that the impression in the blood on the knife was consistent with the pattern on the rubber gloves. In his amended report, he indicated that the cut in the web of the left-hand rubber glove was 11 centimeters long. Podlecki also testified that blond hairs found at the scene and on the knife were not consistent with defendant's hair, which was black.

Susan Perna, Paul’s daughter, testified that defendant and his family were good friends of her family’s.

Nancy Paul Horton, Paul’s wife, who subsequently remarried, testified that she and defendant shared an interest in airplanes and collector’s cars. Horton owned a business that operated two airports in Wisconsin and sold airplanes. Defendant purchased two airplanes from Horton’s business and leased them back to the business. The week before Paul was murdered, she gave defendant a set of keys to start one of her cars in storage and defendant returned the keys within two days. The set included keys to Paul’s office. Horton also testified that the camel-colored sport coat found outside Paul’s office was the same type as a sport coat that defendant often wore.

Other members of Paul’s family testified that after the murder, between April 1 and April 5, they attempted to contact defendant by telephone but could not reach him. Defendant did not attend Paul’s funeral.

Several police officers also attempted to contact defendant at his home and at his office after the murder but were unsuccessful.

Marlene Harbold, defendant’s sister, testified that beginning on April 5, she took care of defendant’s children in his house because he was sick. She testified that defendant had a bandage on his left hand. Defendant told her he nicked his thumb with a saw and accidentally cut the web of his hand, between the thumb and forefinger, with a butcher knife.

Ann Cover, defendant’s employee, testified that defendant did not work from April 1 until April 7 because he had been sick. When he returned, she noticed a cut on his left hand in the web between the thumb and forefinger. Defendant told her he cut his hand while installing panelling.

On defendant’s first day back at work, Officer Curtis Frost interviewed him in his office. When Frost first saw defendant, he noticed a cut on his left hand, a couple of inches long, between the thumb and forefinger covered by bandages. Defendant kept his left hand in his pocket for the rest of the interview. Defendant told Frost that he was at home, sick with the flu, for the past few days and did not answer the telephone. Defendant also said that although he had heard of Paul’s death, he did not contact the family.

A search warrant was issued for defendant’s house which was executed on April 10. Officer Terrence Conley testified that during the search he spoke with Marlene Harbold, who told him she had noticed defendant’s left hand was bandaged. She also told Conley that defendant told her he injured the web between the thumb and forefinger while he was cutting a door with a circular saw. The police recovered the saw and the door, which appeared to have bloodstains on them however, they did not find defendant’s camel-colored sport coat.

Mohammed Tahir, a forensic scientist, examined the bloodstain on the circular saw and found there was no blood in the teeth of the saw. In his opinion, the blood came in contact with the saw when it was not moving and the stain was consistent with touching the saw with a bloody finger or hand. The blood on the saw was type 0, the same as defendant’s blood type.

Dr. Joseph Danna examined defendant on April 10 pursuant to a court order. Defendant had two cuts on his left hand: one was on the web between the thumb and forefinger and the other was on his thumb. The cuts were one to two weeks old and occurred from the same event. The web cut, which showed signs of infection, was two inches long and should have been sutured. In Danna’s opinion, the cuts appeared to have been caused by a knife and could not have been caused by a circular saw.

Tim Klier, a bank employee, testified that he saw defendant in the bank on March 31, the day Paul was murdered, and he did not have cuts on his left hand. Photographs taken by the security camera in the bank supported this testimony.

The State rested its case against defendant. Defendant presented the following witnesses.

Robert Farrell, a retired police officer, assisted in the investigation of Paul’s murder. He interviewed a friend of Paul’s who stated that the police or the Federal Bureau of Investigation spoke with Paul about another man, also with the last name Paul, who was suspected of transporting stolen cars.

Walter Sherk, a forensic scientist, testified that the lock on Paul’s office had been tampered with at some time but he could not determine if the tampering was successful.

Janet Cook, a former employee of Paul’s business, testified that at 5 p.m., on the night Paul was murdered, she saw a man with curly blond hair sitting in a parked car behind the office.

Maria Raspanti, also a former employee, testified that she did not remember ever seeing a man by the name of Martin Paul or describing him to police. She also testified that two months before the murder, police officers came to the office and spoke with Paul but she did not know what the conversation was about. She did not remember receiving a telephone call two days later from Martin Paul for Frank Paul.

The parties stipulated that Officer Frost would testify that Raspanti described Martin Paul to the police and told them that the police spoke with Frank Paul two months before his death about transporting stolen cars.

In closing argument, defense counsel argued that defendant had a friendly relationship with Paul and there was no evidence of a disagreement between them. Although he stated that motive was not required, he argued there was no evidence introduced to show why defendant would murder Paul.

In rebuttal, the assistant State’s Attorney argued:

“And the defense has asked you about motive. Now, I told you right off from the start, we do not have to prove why he did it. Who knows what evil lurks in the hearts of men? I told you right from the start, all we have to do is prove that he did it. And I will show you beyond any reasonable doubt that he did it.
The defense counsel has asked [you to] think about why he might have done it. Well, maybe he admired Mrs. Paul from afar.”

Defendant objected and the objection was sustained, but the assistant State’s Attorney continued:

“The evidence shows that while Mr. Paul did not share Mrs. Paul’s interest in aviation, this man did. This man had involvements with Mrs. Paul financially as well as through business: He purchased airplanes from Mrs. Paul, leased them back to Mrs. Paul. They shared the hobby of collecting classic T-bird cars. They both had their cars done by Mr. Wisniewski.
After the trial, go back to your parlors and your dens and you can talk about it at the local tavern and you can satisfy yourself and maybe think about why you think he did it; but the Judge is not going to instruct you that we have to prove one iota of evidence as to why. So let’s keep on the track and not be distracted by the red herring.”

The jury found defendant guilty of murder. The trial judge sentenced him to an extended term of 70 years’ imprisonment based on a finding that the crime was exceptionally brutal and heinous. Defendant now appeals.

Opinion

Defendant has raised several claims of error. We consider first the issue of prosecutorial misconduct, which requires reversal of defendant’s conviction.

Defendant argues that his conviction should be reversed because he was prejudiced by the prosecutor’s improper comments in closing argument. Primarily, defendant complains that the State, although prohibited from introducing motive evidence during the trial, speculated on defendant’s motive before the jury. In closing, the prosecutor stated, “maybe he admired Mrs. Paul [Horton] from afar.” When defendant’s objection was sustained, the prosecutor continued to comment on interests that defendant and Horton shared to the exclusion of Frank Paul. The State contends that the comments were a proper response to defendant’s closing argument that the State did not prove motive. Also, the State contends that any prejudice was cured when the trial judge sustained defendant’s objection to the comments.

Generally, the prosecutor has wide latitude in closing argument and may properly comment on the evidence presented at trial and legitimate inferences drawn from the evidence. (People v. Smith (1990), 141 Ill. 2d 40, 565 N.E.2d 900.) However, the prosecutor may not argue assumptions or facts not based on the evidence or present to the jury what amounts to his own testimony. Smith, 141 Ill. 2d 40, 565 N.E.2d 900.

In Smith, the supreme court held that it was improper for the prosecutor to argue to the jury that defendant committed murder for gang-related retaliation when there was no evidence to support that argument. The court stated, “[ajbsent evidence tending to tie the State’s ‘motive evidence’ to defendant, we perceive that the prosecutor’s arguments could serve no purpose other than to ‘inflame the passion or arouse the prejudice of the jury against the defendant without throwing any light on the question for decision.’ ” (Smith, 141 Ill. 2d at 62, 565 N.E.2d at 909, quoting People v. Dukes (1957), 12 Ill. 2d 334, 342-43, 146 N.E.2d 14, 18.) Defendant’s conviction was reversed and remanded for new trial due to the cumulation of several errors including improper comment.

In People v. Mullen (1990), 141 Ill. 2d 394, 566 N.E.2d 222, which is analogous to the present case, the prosecutor commented in closing argument on evidence which was specifically excluded from trial. The supreme court found the improper comments were highly prejudicial. Although a prosecutor’s comments on excluded evidence may not alone deny a defendant a fair trial, the court found that because the evidence at trial was closely balanced, the comments probably influenced the jury to return a guilty verdict. As a result, the court reversed and remanded for new trial based on the improper comments.

To resolve the issue presented, we must discuss the history of this case. Defendant’s first conviction for Paul’s murder was reversed and remanded for new trial based, in part, on the erroneous admission of motive evidence. (Harbold, 124 Ill. App. 3d 363, 464 N.E.2d 734.) Evidence was presented in the first trial purporting to establish a relationship between defendant and Horton from which the jury could infer defendant’s motive for killing Paul. Without this evidence, the other evidence at trial did not indicate a reason for defendant to kill Paul. This court held that the evidence was inadmissible because it was too remote in time from Paul’s murder and, as a result, defendant was substantially prejudiced, especially because the case was based entirely on circumstantial evidence. When defendant was retried, the State was precluded from presenting motive evidence and the prosecutor was warned not to inject motive evidence in the State’s case in chief.

The prosecutor’s comment that “maybe he admired Mrs. Paul [Horton] from afar” was not based on evidence presented at trial. It was pure speculation, as defendant noted in his objection, and supplied the jury with a motive in an otherwise closely balanced circumstantial case. When defendant’s objection was sustained, the prosecutor continued his argument focusing on the shared interests of defendant and Horton. The implication of the comments was obvious. Without the suggestion, the evidence would not have led the jury to that conclusion. Further, the comments were a back door attempt to present the jury with a motive when evidence of motive was specifically excluded from trial. We can only conclude that the prosecutor deliberately circumvented the court’s ruling excluding motive evidence.

The State contends that the comments were made in response to defendant’s comments that the State did not present a motive for defendant to have killed Paul. (See People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180 (defendant could not claim prosecutor’s comments were improper when they were made in response to defendant’s argument).) However, the proper response would have been to reiterate to the jury that the State was not required to prove motive as an element of murder. Instead, the prosecutor went a step further and offered a motive for the jury. The State also contends that any prejudice was cured when the judge sustained defendant’s objection. (See People v. Scott (1990), 194 Ill. App. 3d 634, 551 N.E.2d 288 (sustaining objection and immediately instructing the jury to disregard improper comment cured prejudice).) In this case, the judge sustained the objection but did not immediately instruct the jury to disregard it.

Improper comment in closing argument will not justify reversal unless it resulted in substantial prejudice to defendant, considering the context of the language used, its relationship to the evidence, and its effect on defendant’s rights to a fair and impartial trial. Smith, 141 Ill. 2d 40, 565 N.E.2d 900.

In this case, the improper comment, implying an illicit relationship between defendant and Horton, was not based on the evidence and inflamed the passion and aroused the prejudice of the jury against defendant. “[A]n insinuation which leaves the jury to speculate may be more prejudicial than erroneously admitted specific proof.” (People v. Emerson (1983), 97 Ill. 2d 487, 497, 455 N.E.2d 41, 45.) Also, defendant’s conviction rested solely on circumstantial evidence which was closely balanced and the impact of the comment on the jury was significant. The important task of deciding whether someone is guilty should not be influenced by an invitation to speculate as the prosecutor offered in this case when he used the word “maybe” and suggested a motive. As a result, defendant was substantially prejudiced and his conviction must be reversed and remanded for new trial.

Although not dispositive of this appeal, we also consider two other arguments defendant raised concerning issues that may affect his retrial.

Defendant argues that the denial of his motion in limine was manifestly erroneous. He moved to exclude the circular saw found in his house and the corresponding expert testimony that the blood on the saw was placed there when the saw was not moving.

On appeal, he contends that the circular saw was not relevant at trial because there was no evidence linking it to the crime. He relies on Marlene Harbold’s testimony that defendant told her he cut his left hand on a saw but she did not testify that it was a circular saw. Defendant ignores Officer Conley’s testimony that Marlene Harbold told him that defendant told her he cut his hand on a circular saw. Based on this, there was sufficient evidence to link the circular saw to defendant’s effort to conceal the crime and the evidence was relevant. The denial of defendant’s motion in limine was not manifestly erroneous.

Defendant also argues that he was denied a fair trial when he was limited to seven peremptory challenges under Supreme Court Rule 434(d) (134 Ill. 2d R. 434(d)) rather than 10 peremptory challenges under section 115—4(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115—4(e)). When defendant was first tried, he was allowed 10 peremptory challenges under section 115—4(e); however, at the time of his second trial, amendments to Rule 434 were in effect which reduced the number of peremptory challenges to seven.

Because section 115—4(e) directly conflicts with Rule 434(d) and the issue is a matter of court procedure, Rule 434(d) controls. (People v. Colclasure (1990), 200 Ill. App. 3d 1038, 558 N.E.2d 705.) As a result, defendant was properly granted seven peremptory challenges under the law in effect at the time of his second trial.

Reversed and remanded for new trial.

MURRAY and GORDON, JJ., concur.