author: JUSTICE EGAN

text:
    THOMAS STEC, Plaintiff-Appellant, v. OAK PARK POLICE PENSION BOARD et al., Defendants-Appellees.
    First District (6th Division)
    No. 1 — 89—2578
    Opinion filed September 28, 1990.

      Stanley H. Jakala, of Berwyn, for appellant.
    Doss, Puehalski & Keenan, Ltd., of Chicago (Richard J. Puchalski, of counsel), for appellees.
   JUSTICE EGAN

delivered the opinion of the court:

The issue before us is whether a police officer who resigns after applying for a disability pension is barred from that pension because of his resignation. The defendant, Oak Park Police Pension Board (the Board), held that he is so barred, and the circuit court agreed.

The plaintiff, Thomas Stec, was hired by the Oak Park Police Department (the Department) as a patrol officer for the Village of Oak Park on May 2, 1977. He served in various capacities as a patrol officer and assumed increasing responsibility over the years.

On March 17, 1988, William Kohnke, the chief of police for the Village of Oak Park, filed three disciplinary charges against the plaintiff with the Fire and Police Commission, seeking the plaintiff’s removal from the Department. The plaintiff was charged with having violated State law regarding perjury and Department rules and regulations regarding truthfulness in that, in applying for promotion to sergeant, the plaintiff made false statements under oath which asserted that he had earned a B.A. degree from Northwestern University and a J.D. degree from DePaul University and that he had failed to correct such representations which appeared in three of his performance appraisals.

On April 25, 1988, the plaintiff applied for a duty-related disability pension pursuant to article 3, section 3 — 114.1, of the Illinois Pension Code (Ill. Rev. Stat. 1987, ch. IO8V2, par. 3-114.1). The plaintiff alternatively sought a non-duty-related disability pension pursuant to article 3, section 3 — 114.2, of the Illinois Pension Code (Ill. Rev. Stat. 1987, ch. IO8V2, par. 3 — 114.2). On April 26, 1988, the plaintiff tendered his resignation from the Department, specifically reserving his right to pursue a disability pension; the plaintiff’s resignation was to take effect on April 28,1988.

The Board conducted a hearing to determine the disability claim of the plaintiff on December 12, 1988. The plaintiff testified that he was sworn in as a police officer on May 2, 1977, and that he served as a patrol officer until his resignation on April 28, 1988. He had served as a plainclothes officer, a youth officer and a detective. Although his rank and pay remained that of a patrol officer, the plaintiff began to assume increasing responsibility in 1982 when he was placed in a supervisory position as the Department’s first training officer. By 1987, the plaintiff simultaneously served as the Department’s training, budget and planning officer as well as then Chief Bergstrom’s administrative aide. He also handled the documentation for the lawsuits which were filed against the Department and responded to the more sensitive complaints regarding police brutality and use of deadly force. As a patrol officer in a supervisory position, the plaintiff found that each new assignment brought additional pressure, stress, criticism and hostility. Chief Bergstrom and then later Chief Kohnke both denied his requests for transfers.

As a result of his duties, the plaintiff worked 48 to 60 hours a week; he also worked at times as a security guard during his off-duty hours. The plaintiff’s problems began when, as a patrol officer, he was given a supervisory role on the chief’s administrative staff. As his responsibilities increased, so too did his problems. Specifically, he encountered marital problems as well as various medical and psychological problems, including high blood pressure, an ulcer, depression, lack of concentration, nervousness, thoughts of suicide and alcohol abuse. The plaintiff sought both medical and psychiatric help for his various problems. Although the plaintiff became a member of Alcoholics Anonymous, he never entered a detoxification center.

As a member of the administrative staff, the plaintiff was not required to carry a gun except for a couple of months during the winter of 1987 when, in addition to his other duties, he was required to patrol the streets for two hours each day during Christmastime. By the end of December, the plaintiff realized that he could no longer trust his judgment in carrying a weapon, and he turned over his weapons to other officers. He worried that his lack of good judgment would endanger both the safety of others as well as himself. He finally realized that he could endanger lives by carrying a weapon after a couple of incidents occurred in the fall of 1987 during his job as a part-time security guard. In one incident, he felt that he could have rashly and needlessly shot an unarmed teenager.

By March 1988 the plaintiff concluded that he was no longer fit to do his duties. His judgment was definitely affected by his alcoholic problems. Although he first began to drink after the midnight shift as a patrolman, he did not feel that he had an alcohol problem until after he became a training officer.

The plaintiff explained that his decision to resign from the police force was a process which happened over time. He actually decided to leave the Department three or four months before he tendered his resignation; the realization that he had to leave actually came to the forefront in December 1987 when he was hospitalized. He was on sick leave for most of March and all of April 1988. He did not continue sick leave because he knew that he was not going to remain an officer; he recognized that he could not do the job; and he did not want to be an officer.

Several factors contributed to the plaintiff’s decision to resign. Primarily, the plaintiff did not feel that he could do the job any longer; he could not wear a gun; he could not trust his judgment; he had no confidence in his ability. The plaintiff suffered from a quick temper and became easily enraged. He also had problems with Chief Kohnke, who let him know that he wanted to fire him as part of his plan to get rid of everyone who had been assigned to the administrative staff by the previous chief. He had marital problems that caused him to stay away from his Oak Park home which led to an investigation into whether he was abiding by the residency requirements of the Department which greatly upset him. His problems kept building until he finally decided to leave the Department sometime in January or February.

Certain medical documentation was also admitted as part of the administrative record. On March 29, 1988, Chun C. Tsai, M.D., conducted a psychiatric evaluation of the plaintiff about which he reported on March 31. Dr. Tsai diagnosed the plaintiff as suffering from major depression, alcohol dependence and marital discord. Dr. Tsai prescribed daily medication and weekly counseling for anxiety and depression. He also prescribed medication to deter his drinking. Dr. Tsai concluded that the plaintiff was not presently fit to function as a police officer and recommended that he take a sick leave or leave of absence.

On September 8, 1988, Anthony M. D’Agostino, M.D., reported that the plaintiff was still suffering from alcoholism and major depression. The doctor found the plaintiff unfit for duty as a police officer. Although Dr. D’Agostino admitted that the plaintiff’s history came exclusively from the plaintiff, appearances led him to conclude that the plaintiff’s situation was at least, in part, a direct outgrowth of his service in the police department.

In August 1988, at the request of the Pension Board, Erick Ostrov, J.D., Ph.D., conducted a clinical psychological evaluation of the plaintiff to determine his ability to function as a police officer about which he reported on October 4, 1988. Dr. Ostrov concluded that, although the plaintiff’s alcohol dependence was reportedly in remission, he still suffered from significant depression and was unable to function as a police officer. He suggested that the plaintiff’s poor concentration and impaired judgment would preclude him from meeting the responsibilities of his position. Although the plaintiff contended that he could never go back to being an officer, Dr. Ostrov suggested that the plaintiff may have meant that he may never want to function as an officer again. Dr. Ostrov recommended reevaluation in six months.

Clifton Rhead, M.D., conducted a psychiatric examination of the plaintiff on August 18, 1988, about which he reported on September 8, 1988. Dr. Rhead believed that the plaintiff’s deterioration resulted from his sense of inadequacy following his promotion and reassignment to administrative duties within the police department. Increasing alcohol dependence compounded his deterioration. The plaintiff was neither malingering nor consciously exaggerating his symptoms. Although Dr. Rhead believed that the plaintiff would have responded similarly to stresses in other vocations if they had been as severe, he concluded that the immediate precipitant of his illnesses was the stress which he encountered in attempting to carry out his police duties.

Without expressing any analysis of the evidence, the Board found that “the more detailed and credible medical evidence” led it to conclude that the plaintiff’s emotional and mental states were not duty related. However, the Pension Board explicitly held that it was not required to base its decision on the evidence and did not do so. Instead, the Pension Board concluded that the plaintiff had “voluntarily resigned” from the Department “in lieu of disciplinary proceedings.” Since he had resigned from the police force, the Board no longer considered the plaintiff to be a “police officer” within the meaning of the term under section 3 — 106 of the Illinois Pension Code. (Ill. Rev. Stat. 1987, ch. IO8V2, par. 3 — 106.) The Board reasoned that, because the plaintiff was no longer a police officer, he could not be compelled to submit to further medical examination to verify continuing disability as required by the Pension Code (Ill. Rev. Stat. 1987, ch. IO8V2, par. 3 — 115), nor could he be returned to active duty when no longer disabled or be assigned to emergency service (Ill. Rev. Stat. 1987, ch. IO8V2, par. 3 — 116). Basing its decision on the authority of Di Falco v. Board of Trustees of the Firemen’s Pension Fund of the Wood Dale Fire Protection District No. One (1988), 122 Ill. 2d 22, 521 N.E.2d 923, and Freberg v. Board of Trustees of the Firemen’s Pension Fund (1970), 128 Ill. App. 2d 369, 262 N.E.2d 22, the Board concluded that the plaintiff was no longer eligible for either a duty-related or a non-duty-related disability pension under the Illinois Pension Code. (Ill. Rev. Stat. 1987, ch. lOS1^, pars. 3 — 114.1, 3 — 114.2.) It also indicated that the plaintiff was entitled to a refund of his individual pension contributions. (Ill. Rev. Stat. 1987, ch. ÍOS1^, par. 3 — 124.) Relying solely on Di Falco, the circuit court adopted the substance of the Board’s reasoning and affirmed the Board’s denial of the plaintiff’s disability application.

We will reverse an administrative agency’s decision only when it is either legally erroneous or factually against the manifest weight of the evidence. (Donnells v. Woodridge Police Pension Board (1987), 159 Ill. App. 3d 735, 512 N.E.2d 1082.) In this case, the relevant facts are undisputed and the issue is one of law. We conclude that the decision of the Board was legally erroneous.

Article 3 of the Illinois Pension Code (Ill. Rev. Stat. 1987, ch. 108x/2, par. 3 — 101 et seq.) governs all matters relating to the police pension fund, and we must liberally construe its provisions in favor of police officers and their surviving dependents. (Hahn v. Police Pension Fund (1985), 138 Ill. App. 3d 206, 485 N.E.2d 871; see also Ill. Rev. Stat. 1987, ch. 108x/2, par. 3 — 101.) In construing the statute, it is our duty to enforce the pension law, as enacted, according to the plain and unmistakable provisions, attaching the popular meaning to the words unless the spirit and purpose of the act dictate otherwise. Edwards v. Board of Trustees of Police Pension Fund (1974), 22 Ill. App. 3d 260, 317 N.E.2d 364.

To receive a duty-related disability pension, a police officer must be suspended or retired from the police force after having been found physically or mentally disabled for duty as a result of a sickness, accident or injury which resulted from the performance of his duty. (Ill. Rev. Stat. 1987, ch. 108x/2, par. 3 — 114.1.) To receive a non-duty-related disability pension, a police officer must be suspended or retired from the police force after having been found physically or mentally disabled for duty as a result of any cause other than the performance of an act of duty. (Ill. Rev. Stat. 1987, ch. 108x/2, par. 3— 1141.2.) Section 3 — 106 defines a police officer as any person who is appointed to the police force of a police department and sworn and commissioned to perform police duties, who is found physically and mentally fit to perform the duties of a police officer and who timely applies to come under the provisions of the code. (Ill. Rev. Stat. 1987, ch. 108x/2, par. 3 — 106.) An officer who has resigned from the police force is not listed among the officers and other police-related personnel who are explicitly excluded from the provisions of the code. Ill. Rev. Stat. 1987, ch. 108x/2, par. 3 — 109.

There is one case which is directly in point and is contrary to the Board’s position: Hahn v. Police Pension Fund (1985), 138 Ill. App. 3d 206, 485 N.E.2d 871. Hahn applied to the pension board for a disability pension after his police chief filed charges against him. Like the plaintiff here, Hahn then resigned from the police department specifically preserving his rights to a pension. The pension board conducted hearings on Hahn’s application, as in this case, while disciplinary charges were still pending against him. The pension board finally denied Hahn’s application for disability, in part, on the ground that his voluntary resignation had completely severed his membership in the police department and his right to a pension or other benefits which might have accrued to him as an officer. The circuit court affirmed the board’s denial. However, the appellate court recognized that, even though Hahn had voluntarily resigned from the force, he did not intend to relinquish his pension rights since he had applied for the pension before resigning and specifically preserved his rights in his resignation letter. (Hahn, 138 Ill. App. 3d at 211-12.) Consequently, it held that Hahn’s “retirement [resignation]” did not deprive him of his right to a disability pension, since the Pension Code specifically anticipated that police officers can be retired. Hahn, 138 Ill. App. 3d at 213; see also Ill. Rev. Stat. 1987, ch. lOS1^, pars. 3 — 114.1, 3-114.2, 3-116.

The Board argues that we should not follow Hahn for two reasons. First, it argues that Hahn is an opinion of the Second District Appellate Court and that, therefore, we are not required to follow it. Second, the Board maintains that Di Falco “appears to overrule Hahn."

It is true that we need not in all instances follow the decisions of the appellate courts of other districts. “However, there are compelling reasons to do so unless a district has made a determination of its own contrary to that of another district, or there is a split of authority among the districts.” (People v. Ward (1989), 192 Ill. App. 3d 544, 554, 548 N.E.2d 1120, 1127.) This district has not made any determination of its own and there is no split of authority among the other districts.

With respect to Di Falco, we do not interpret the opinion as an overruling of Hahn. Contrary to the defendants’ assertion, we do not find the facts of Di Falco similar to those in this case. Di Falco was a probationary fireman-paramedic who allegedly sustained spinal injuries while on duty. After almost six months of disability leave, Di Falco was discharged from the firefighting service. Unlike the plaintiff here, Di Falco applied for a disability pension almost one year after having been discharged from service. Both the pension board and the circuit court found that Di Falco was not entitled to a disability pension because by having been discharged, he was not employed as a fireman at the time of his application.

The issue in Di Falco was whether a discharged fire fighter could apply for a disability pension one year after he had been removed from the force even if his injury occurred while he was on duty as an active, although probationary, member of the fire department. The supreme court held that section 4 — 110 of the Pension Code, which was applicable to fire fighters, required that an applicant for a duty-related disability pension be a fireman both at the time of his impairment and at the time of his application. (Di Falco, 122 Ill. 2d at 30.) Therefore, in order to receive a disability pension, a fire fighter had to meet a condition precedent which was to be a member of the fire service at the time he applied for his pension. (Di Falco, 122 Ill. 2d at 30-31.) Because Di Falco had been dismissed almost one year before he applied for his disability pension, his application was properly dismissed. Di Falco, 122 Ill. 2d at 33.

In Di Falco, the supreme court reversed the Second District Appellate Court, the same court that had decided Hahn-, but the supreme court made no mention of Hahn. Consequently, we refuse to accept the defendants’ suggestion that the supreme court in Di Falco tacitly or impliedly overruled Hahn. We read DiFalco’s holding to be a narrow one:

“In conclusion, fire fighters applying for a duty-related pension under section 4 — 110 of the Illinois Pension Code must still be employed as fire fighters at the time of application.” (Emphasis added.) 122 Ill. 2d at 33.

After Di Falco was decided by the supreme court, the second district decided Pierce v. Board of Trustees of the Police Pension Fund (1988), 177 Ill. App. 3d 915, 532 N.E.2d 1004. In Pierce, the plaintiff was denied a disability pension, in part, because the board found his application premature since he had applied for a disability while still employed full time by the department on limited duty. He was subsequently suspended and then discharged as a patrolman. Recognizing Hahn, the court concluded that the Pension Code does not require that a police officer resign before applying for pension benefits. (Pierce, 177 Ill. App. 3d at 922.) Neither the defendant nor the appellate court took the position that Di Falco had overruled Hahn. In fact, it was the defendant Pension Board which cited Hahn, maintaining that under Hahn only retired or suspended officers were entitled to a disability pension.

The defendants also rely on Freberg v. Board of Trustees and Firemen’s Pension Fund (1970), 128 Ill. App. 2d 369, 262 N.E.2d 22. We disagree that Freberg is apposite. The Freberg court denied a non-service disability pension to a fire fighter who applied for his pension after having been discharged from the department. Analyzing sections 4 — Ill. 4 — 112 and 4 — 113 of the Illinois Pension Code, the court concluded that an individual must still be a fireman at the time he applies for his pension. Freberg, 128 Ill. App. 2d at 374.

Citing Fenyes v. State Employees’ Retirement System (1959), 17 Ill. 2d 106, 160 N.E.2d 810, the Board argues that resignation by public employees can terminate the right to pension benefits. Fenyes also is inapposite. In Fenyes, the plaintiff filed a claim for death benefits after her husband had voluntarily resigned his State employment before his death. The plaintiff conceded that she was not entitled to ordinary death benefits if her husband effectively withdrew from service before his death. Rather, she contended that her husband’s resignation was a nullity because he was not mentally competent when he resigned. The sole issue in Fenyes was whether the decision of the Board that the claimant’s husband was sane at the time of his resignation was against the manifest weight of the evidence.

The defendants also refer us to opinions from three other States. Again, we find those cases inapposite; each was decided on a specific interpretation of that State’s peculiar statutory law.

The defendants urge us to consider the ramifications of a ruling granting a disability pension to the plaintiff. They argue that such a ruling will open the floodgates for claims for disability pensions by persons facing disciplinary charges. The defendants’ argument assumes that all disciplinary charges in such cases will be sustained, an assumption we do not share. Moreover, and most important, an applicant for a disability pension must still prove disability. Finally, a recipient of a disability pension is subject to periodic examinations. If the recipient refuses to submit to the examination or the examination establishes that he is no longer disabled, the disability pension may be terminated. (Hahn, 138 Ill. App. 3d at 213.) A disabled officer is also subject to emergency duty. Clearly, the officer’s retirement status does not abrogate his duty to respond. (Hahn, 138 Ill. App. 3d at 213.) No empirical proof has been submitted showing a spate of applications for disability pensions by fire fighters or policemen facing disciplinary charges in the five years since Hahn was decided. We are not persuaded that police and fire fighter pension funds will be improperly depleted by claims of about-to-be-discharged applicants. In sum, we believe that Hahn was correctly decided, and we will follow it. Consequently, we judge that the circuit court erred in affirming the defendant Board.

Since we have made the determination that the Board improperly held that the plaintiff’s resignation barred him from a disability pension, the next question is the appropriate order to be entered. The Board made a finding of fact that “the more detailed and credible evidence” established that the plaintiff’s emotional and mental states were not duty related. We infer that the Board recognized that the plaintiff was incapable of performing his duties as a police officer and thus was disabled within the meaning of the statute. The manifest weight of the evidence shows unequivocally that the plaintiff was disabled and unfit for duty as a police officer at the time he applied for his disability pension. The medical evidence is uncontroverted. Dr. Tsai, Dr. D’Agostino and Dr. Ostrov explicitly confirmed the plaintiff’s unfitness for duty, and .Dr. Rhead clearly implies it. The issue of whether the Board’s conclusion that any disability is duty related is not properly before us since it has not been argued or briefed. Our order, therefore, is that the judgment of the circuit court is reversed and the cause remanded to the defendant Board to make a determination of whether the plaintiff’s disability is duty related or not duty related and to make an appropriate award. That award, of course, will be subject to review by the circuit court.

Judgment reversed and cause remanded with directions.

McNAMARA and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
      In re MARRIAGE OF REBECCA KAY DECKER, Petitioner-Appellee, and PAUL R. DECKER, Respondent (Kristen H. Fischer, Contemnor-Appellant).
    Fourth District
    No. 4 — 90—0488
    Opinion filed October 4, 1990.
    Modified on denial of rehearing November 16,1990.

      Shari D. Goggin-Ward, of Kirtley-Pavia-Marsh, P.C., of Urbana, and Charles L. Palmer, of Franklin, Flynn & Palmer, of Champaign, for appellant.
    William D. McGrath, of McGrath & McGrath, of Champaign, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Respondent’s attorney, Kristen Fischer, was held in direct civil contempt for refusing to obey the trial court’s order that she disclose, either in open court or in camera, any information she possessed as to the intent of her client, Paul Decker, to commit a crime. On appeal, contemnor argues she cannot be compelled to divulge any such information because either it is protected by the attorney-client privilege or she has the absolute discretion to refuse disclosure under Rule 4— 101 of the Code of Professional Responsibility (107 Ill. 2d R. 4 — 101).

This issue arises in an all-too-frequent and tragic context. By the terms of a child custody order, petitioner was awarded custody of the minor daughter. Respondent was granted visitation rights. He exercised those rights on July 13, 1990, but failed to return the child to her mother at the appointed hour.

Because the whereabouts of respondent and the child were still unknown as of July 17, 1990, petitioner sought immediate relief from the trial court. Although the court quashed petitioner’s subpoena requesting disclosure of respondent’s current location, counsel was ordered to divulge any information she had as to her client’s “intent to commit a crime,” because it had become obvious respondent had absconded with the child in apparent violation of the child custody order and the Illinois child abduction statute. (Ill. Rev. Stat. 1989, ch. 38, par. 10 — 5.) Citing the attorney-client privilege, counsel refused to respond and declined the additional opportunity to reveal the information in camera so that the court could determine if a privilege existed. Upon her continued refusal to answer, counsel was held in direct civil contempt and ordered incarcerated until she purged herself by complying with the order. Sentence was stayed pending appeal.

Contemnor initially argues any information she possesses is “protected” by the attorney-client privilege because it is confidential. This argument is without merit. The United States Supreme Court has repeatedly held the attorney-client privilege does not extend to communications between an attorney and a client where the purpose of that communication is to further a crime or to discuss future intended illegality. (Clark v. United States (1933), 289 U.S. 1, 77 L. Ed. 993, 53 S. Ct. 465.) Recently the Court stated:

“The attorney-client privilege must necessarily protect the confidences of wrongdoers, but the reason for that protection — the centrality of open client and attorney communication to the proper functioning of our adversary system of justice — ‘ceas[es] to operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but to future wrongdoing.’ [Citations.] It is the purpose of the crime-fraud exception to the attorney-client privilege to assure that the ‘seal of secrecy/ ibid., between lawyer and client does not extend to communications ‘made for the purpose of getting advice for the commission of a fraud’ or crime.” (Emphasis in original.) (United States v. Zolin (1989), 491 U.S. 554, 562-63, 105 L. Ed. 2d 469, 484-85, 109 S. Ct. 2619, 2626.)

In the same vein is the following: “An attorney’s duty of confidentiality, which totally covers a client’s admission of guilt, does not extend to a client’s announced plans to engage in future criminal conduct.” Nix v. Whiteside (1986), 475 U.S. 157, 174, 89 L. Ed. 2d 123, 139, 106 S. Ct. 988, 998.

The focus is not, as contemnor would suggest, on whether the communications were intended to be confidential. The issue is whether they are privileged. Were it otherwise, an individual could always immunize any comment he made simply by communicating it to his attorney. Since the privilege may never be invoked to bar disclosure of communications in which a client seeks legal assistance to obtain illegal ends (In re Marriage of Granger (1990), 197 Ill. App. 3d 363, 554 N.E.2d 586), any communication from respondent to contemnor concerning his “intent to commit a crime” cannot be shielded from disclosure by mere invocation of the attorney-client privilege.

Contemnor also argues that Rule 4 — 101(d) of the Code of Professional Responsibility grants her the absolute right to refuse to disclose this information. Rule 4 — 101(d) provides, in pertinent part:

“A lawyer may reveal
(1) confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them;
(2) confidences or secrets when permitted under disciplinary rules or required by law or court order;
(3) the intention of a client to commit a crime in circumstances other than those enumerated in paragraph (c) above.” 107 Ill. 2d Rules 4-101(d)(l), (d)(2), (d)(3).

In contemnor’s view, because she is vested with the initial discretion to determine whether to reveal a client’s stated intent to a commit a crime, that discretion, which is not subject to review, is absolute and she may not be ordered to disclose the material, even in camera, under any circumstances. At oral argument, contemnor conceded that under her theory, greater protection over disclosure of client communications would be afforded by the disciplinary rule than has ever been recognized under the common law attorney-client privilege.

We find contemnor’s argument unpersuasive for several reasons. In the first instance, if the attorney has complete discretion to reveal information described in the rule, it cannot be privileged, as a matter of law, because it is necessarily subject to disclosure at the “whim” of the attorney. If the information were indeed privileged, it could never be legitimately disclosed absent consent of the client. 8 J. Wigmore, Evidence §2291 (MeNaughton rev. 1961).

In addition, while an attorney may be under no affirmative duty to reveal a client’s intent to commit the crime of child abduction (see Ill. St. Bar Ass’n, Opinion 87 — 9 (Mar. 11, 1988)), there is a vast difference between ethically declining to volunteer confidential information and refusing to disclose nonprivileged communications in response to a court order.

It is this crucial distinction which is fatal to contemnor’s argument. Rule 4 — 101, like other ethical rules governing the practice of law, defines the duty of an attorney to a client. In context, the rule clarifies that no ethical obligation of an attorney to a client is breached by disclosure of information under circumstances identified in the rule irrespective of whether disclosure is made in the discretion of the attorney or at the insistence of the court. Nothing in the language of the rule supports the contention an attorney “may” resist court-ordered disclosure of nonprivileged information. To the contrary, Rule 4 — 101(d)(2) explicitly states that disclosure may be compelled. Contemnor’s interpretation of the language of the rule distorts its plain meaning.

Contemnor’s corollary argument, that disclosure may not be required even in camera, is an unprecedented departure from the established law of attorney-client communications. The party asserting an attorney-client privilege bears the burden of establishing all elements of the privilege. One who claims to be exempt by reason of privilege from the general rule which compels all persons to disclose the truth has the burden of showing the facts which give rise to the privilege. The mere assertion that the matter is confidential and privileged will not suffice. (Cox v. Yellow Cab Co. (1975), 61 Ill. 2d 416, 337 N.E.2d 15; McDonald’s Corp. v. Levine (1982), 108 Ill. App. 3d 732, 439 N.E.2d 475.) An in camera examination of the disputed materials or communications is a reasonable way to protect the privilege, if it exists, or to prevent groundless assertions of the privilege, if it does not. Johnson v. Frontier Ford, Inc. (1979), 68 Ill. App. 3d 315, 386 N.E.2d 112; Zolin, 491 U.S. 554, 105 L. Ed. 2d 469, 109 S. Ct. 2619.

Having considered contemnor’s arguments, we conclude no privilege attaches to any communications between respondent and counsel concerning respondent’s intent to commit a crime. Irrespective of the discretion vested in contemnor by Rule 4 — 101, disclosure of such communications may be compelled by the court. Further, an in camera proceeding is an appropriate method to provide protection to communications which may, in the court’s determination, be subject to a privilege in whole or in part.

Contemnor also raises several arguments concerning the evidentiary value of the information sought. We need not consider these, however, because the issue before us involves only an attorney’s duty to disclose information when directed to do so by the court, not the information’s relevance or admissibility.

Likewise, petitioner’s argument that contemnor can be required to disclose the whereabouts of her client, if she knows, is also not before this court on appeal. The trial court, by interlocutory order, quashed petitioner’s original demand for this information as “too vague.” As that ruling is not final, it is subject to modification. See Jafarian-Kerman v. Jafarian-Kerman (Mo. App. 1967), 424 S.W.2d 333; Falkenhainer v. Falkenhainer (1950), 198 Misc. 29, 97 N.Y.S.2d 467; Dike v. Dike (1968), 75 Wash. 2d 1, 448 P.2d 490; In re Jacqueline F. (1978), 94 Misc. 2d 96, 404 N.Y.S.2d 790, aff’d (1979), 47 N.Y.2d 215, 391 N.E.2d 967, 417 N.Y.S.2d 884.

Contemnor also requests that this court vacate the order of incarceration because her refusal to comply with the trial court’s order was in good faith and made to protect her client’s confidences and secrets. The record supports contemnor’s assertion that she was acting in good faith, and we recognize that in some circumstances, such as here, contempt procedures are an appropriate method by which to test orders which are collateral to the principal action. Accordingly,, we conclude the stay of sentence previously entered should be continued pending further hearing before the trial court on remand, at which time contemnor should be permitted anew to purge her contempt so as to suffer no further disability.

In her petition for rehearing, contemnor argues that our decision is in direct conflict with a recent opinion issued by the Second District Appellate Court in Cesena v. Du Page County (1990), 201 Ill. App. 3d 96, 558 N.E.2d 1378. We disagree. In the first instance, the issue in Cesena was whether an attorney could be held in contempt for refusing to disclose information which was expressly subject to an attorney-client privilege. In this case, no such privilege exists. Furthermore, a client’s intent to commit a crime, unlike a client’s identity in “unique and unusual” circumstances, is not a “confidence” or “secret” as those terms are defined under the Code of Professional Responsibility. To qualify as such, a communication must be made within the ambit of a legitimate professional relationship. Announcing plans to engage in future criminal conduct or seeking legal advice in furtherance of illegal ends are always outside the scope of any valid attorney-client relationship. Finally, given the court’s holding that the client in Cesena waived any privilege against disclosure, the court’s remark that an attorney has the discretion to refuse to reveal this information under Rule 4 — 101 is broadly worded dictum, the validity of which we need not speculate about.

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

Affirmed and remanded.

KNECHT, P.J., and GREEN, J., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELEOLORE L. MOTT, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0003
    Opinion filed October 18, 1990.

      Harold M. Jennings, of Jennings, Novick, Eggan & Ostling, of Bloom-1 ington, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

In passing upon the severity of a sentence imposed by a circuit court in a criminal case, a reviewing court can properly alter that sentence only upon a determination the trial court breached its discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) In recent years, appellate courts of this State have rarely overturned sentences on this basis. However, we conclude the severity of the sentence imposed here was a clear abuse of discretion which requires a reversal of the sentence and a resentencing.

On October 26, 1989, following a bench trial in the circuit court of McLean County, defendant Eleolore L. Mott was found guilty of two counts of reckless homicide (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(a)), which concerned separate -victims. Subsequently, the court sentenced her to two concurrent extended terms of eight years’ imprisonment. The imposition of an extended-term sentence pursuant to section 5— 8 — 2(a) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2(a)) was based upon the existence of the aggravating factor of section 5 — 5—3.2(b)(3) of the Code that while being convicted of reckless homicide, she was “convicted of causing the death of more than one individual” (Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-3.2(b)(3)).

In appealing the sentence, defendant makes an extended list of claims of error. We need not discuss all of these assertions, because we deem the decisive factor here is the breach of discretion by the court in imposing such a severe sentence under the totality of the circumstances presented. Reckless homicide is a Class 3 felony (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(d)(2)), for which the maximum unextended term of imprisonment which could be imposed was five years (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(6)) and the maximum extended-term sentence which could be imposed was 10 years for each offense (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2(a)(5)). The defendant was not subject to imposition of consecutive sentences. Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4.

The evidence at trial showed on August 15, 1988, defendant drove an automobile along Veterans Parkway in Normal at a speed which one witness estimated to be 60 miles per hour and failed to stop or slow down for a red light at College Avenue. Two young men were killed in the ensuing collisions. The defendant climbed out of her vehicle and ran until stopped by a police officer who had come to the scene of the collisions. Several officers testified defendant did not respond to demands she halt.

Defendant’s son, Bryan Brown, testified at trial (1) defendant had been staying with him during her vacation prior to the date of the accident; (2) on the morning of the accident defendant was not acting “normal” but was acting “childish,” and did not seem to “realize what was going on”; (3) he attempted to prevent her from leaving the house, and she crawled underneath the dashboard of her automobile; (4) he was unable to prevent her from going to work, but followed her in his own car; (5) he saw an accident at the corner of College and Veterans Parkway in Normal, and saw a police officer chasing his mother; (6) he caught up with his mother, walked her to a police car and calmed her down; (7) he indicated his mother was going through divorce proceedings prior to the collision and had been exhibiting some bizarre behavior such as throwing her clothes away and throwing them in the bathtub; (8) she was walking in an odd manner, putting her feet from side to side; and (9) he was present during an interview conducted by the Normal police department and indicated defendant had a “blank” look on her face during some of the questions and that some of her answers made no sense.

One police officer testified defendant appeared to be crying when she was apprehended, and her son helped calm her down. Officers who questioned defendant upon her apprehension variously indicated (1) some of her answers did not make sense; (2) she seemed very concerned, but (3) she did not seem to understand fully what had happened.

Cheryl Gaines testified for the defense that she was the program manager of the McLean County crisis intervention team. She said she saw defendant on August 11, just four days prior to the accident. She said she went to defendant’s home, where she found the defendant was having problems with her husband. She testified that defendant appeared to be depressed, her speech was rather flat and slowed down, she had “poor concentration,” and reported some sleep disturbance. She said that she and defendant agreed defendant would benefit from hospitalization at the Brokaw psychiatric unit. Gaines testified that she saw defendant on August 15, shortly after the collision occurred, and defendant appeared to be in much the same condition as she was on August 11. She said she then went to Brokaw Hospital with defendant, and defendant was checked in there.

Police officer William Nobling then testified that on August 11, 1988, he was called to a domestic disturbance at defendant’s home. He said he saw the defendant holding her son and walking down the street looking for a daughter. He indicated defendant was “acting strangely, spaced out” and had a “very, very strange” stare. Nobling indicated defendant “told me that her daughter had told her that her father had killed babies, and the daughter began to cry and denied that.” Nobling indicated defendant eventually left with the crisis intervention team, and when he spoke to her the next day, she said she had agreed to sign herself into Brokaw Hospital.

Defendant testified, admitting she had agreed to go to Brokaw Hospital, but stated she later had decided she did not need to do so. Instead, she said she spent the next few days at her son’s house, from which she left just before the fatal collision. She testified she had not slept well the previous night, and she could not recall all of the events surrounding the collision.

A report by Dr. Bhaskar Damera, a psychiatrist, was read into evidence. It stated (1) defendant had been admitted into a psychiatric unit for depression about one week before the collision; (2) defendant had been married to a financially irresponsible person who was an alcoholic and had snatched her children from her; (3) defendant had not been sleeping well and had been throwing things away at random; (4) her affect was inappropriate; and (5) her memory impaired, and she lacked understanding of the collision. Damera stated, in his opinion, she was “suffering from significant emotional problems and due to that, she was not able to appreciate the substantial and unjustifiable risk that circumstance posed causing injuries.”

A similar report by another psychiatrist, Dr. Robert Chapman, was also read into evidence. He expressed an opinion defendant suffered “inattention, lapse concentration, and preoccupation with matters other than her driving.” He said these “symptoms only suddenly abated moments before the accident when she was able to possess a conscious awareness of the circumstances and took reported evasive, albeit unsuccessful, action.” He was apparently referring to evidence defendant swerved her vehicle just prior to impact. He found “no evidence of mental disease, disorder or defect present at the time of the accident, however, preoccupation with events in her life other than her immediate task [which was] consistent with the stress that she had been experiencing.”

Prior to imposing sentence, the court had been presented with letters from members of the decedents’ families which praised the decedents, explained their great grief and, understandably, requested severe punishment for the defendant. One stated the writer would like to cut the throat of the defendant. Another requested she receive life imprisonment. Several of the writers felt defendant had shown a lack of remorse. Similar testimony was presented at sentencing.

In explaining the reason for the sentences, the court placed most emphasis upon the fact two fine human beings had been killed. This consideration was proper as an explanation for the imposition of extended-term sentences, because multiple deaths is a factor justifying such sentences. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5— 3.2(b)(3).) However, the existence of multiple deaths is not otherwise an aggravating factor as the death of the victim is inherent in the homicide offense. (People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138; People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906.) The court also considered that, in addition to the two deaths, other people were severely injured. This was a proper aggravating factor, because the additional injuries were harm resulting from defendant’s criminal conduct not inherently part of the offense. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(a)(1).) Proper consideration was also given to the great speed at which defendant drove, which would properly bear upon the degree of her recklessness. The court concluded defendant had consciously rejected needed counseling and treatment. This also bore upon the degree of her recklessness and was of a more deliberate nature than the conduct at the time of the collision.

The court’s comments do not indicate it relied upon the need for deterrence in imposing sentence. In People v. Martin (1988), 119 Ill. 2d 453, 519 N.E.2d 884, a divided supreme court passed upon the propriety of a sentence for involuntary manslaughter. That offense has the same elements as reckless homicide but does not involve the use of a motor vehicle. (See Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3.) The majority deemed deterrence to be of little significance when sentencing a person for an offense which involves unintentional conduct because a severe sentence would have little effect upon likely offenders. (Martin, 119 Ill. 2d at 459, 519 N.E.2d at 887.) The three-judge minority dissented on waiver grounds and did not express an opinion concerning the deterring of unintentional conduct. Perhaps punishment here would encourage others with similar problems not to reject treatment as defendant did.

The record made clear defendant had never previously been convicted of a criminal offense with the possible exception of a minor traffic violation. The record gives little indication of any need to incarcerate defendant to protect the public from her. The evidence indicated her driving privileges had been revoked. That would seem to be the appropriate method of protecting the public from any danger she may present. She has not been shown to be reckless in any other way. Likewise, imprisonment does not seem to offer whatever type of treatment defendant needs to rehabilitate herself from whatever inadequacies in her makeup caused her to engage in the reckless conduct here.

In addition to the previously discussed mitigating information concerning defendant, the record shows letters from and testimony of friends of defendant, who described her as a good person and one who was needed by her children. They indicated she was not the type of person to harm others. Those who had worked with her at the Eureka Company, a manufacturer, described her as also a good and reliable worker. Several of these people recognized defendant had been under a great strain arising from her marital problems. The record did not indicate she had a problem with drugs or alcohol and neither was directly involved with her condition the day of the collision.

The most mitigating factor of all is the undisputed evidence of defendant’s severe emotional problems. This does not exonerate her from her reckless conduct or provide a defense to it. Nevertheless, it was a matter which the sentencing court was required to consider and did consider to some extent. The extent to mitigate the punishment to be imposed upon a defendant because of emotional problems is hard to measure. However, here the evidence is overwhelming that defendant did not contrive her emotional problems, and they did substantially impair her ability to control herself.

Without question, the dominant factor behind the court’s imposition of sentence here was retribution, a determination that any less sentence would deprecate the horrible damage defendant, had brought about. We recognize the court was well within its discretion in denying probation and imposing imprisonment. The breach of discretion occurred in placing so much weight upon retribution against this otherwise law-abiding and substantially impaired defendant as to impose an extended sentence which amounted to 80% of the maximum permitted by law. This is what requires resentencing.

Many of defendant’s claims of error are encompassed by the explanations we have given for our reversal. Several others are waived for failure to properly preserve the issue.

In regard to one matter which might recur at resentencing, we call attention to sections 5 — 4—1(a)(6) and (a)(7) of the Code. (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 4—1(a)(6), (a)(7).) Section 5 — 4— 1(a)(6) permits victims of violent crimes to make written statements of the impact of a crime upon them to be presented to the court at sentencing and to testify at sentencing. Section 5 — 4—1(a)(7) permits, in cases of reckless homicide, as here, the spouse, guardian, parent or “other immediate family members” the opportunity to testify orally at sentencing. Persons not so qualifying should not be permitted to proceed at resentencing under subsections (a)(6) and (a)(7) above. However, persons not fitting the above categories may otherwise testify as to matters admissible in mitigation or aggravation.

As we have explained, the sentences previously imposed must be and are hereby reversed. The cause is remanded for resentencing.

Reversed and remanded.

KNECHT, P.J., and LUND, J., concur.


author: JUSTICE McCULLOUGH

text:
      In re MARRIAGE OF SUSAN WHITE, n/k/a Susan McDermott, Petitioner-Appellee, and JAMES WHITE, Respondent-Appellant.
    Fourth District
    No. 4 — 90—0223
    Opinion filed October 18, 1990.

      Tracy A. Smith, of Bloomington, for appellant.
    Dunn, Goebel, Ulbrich, Morel & Hundman, of Bloomington (William T. Hundman, of counsel), for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

James White (James), respondent, appeals from an order of February 26, 1990, denying his petition to modify child support entered by the circuit court of McLean County. The only issue is whether the trial court abused its discretion in denying James’ petition for modification. We reverse.

The facts will be reviewed only as necessary to a disposition of this case.

James and Susan White, n/k/a Susan McDermott (Susan), were granted a dissolution of marriage in 1979. Two children were bom of the marriage, Heather, date of birth August 31, 1974, and Eric, date of birth November 22, 1975. In the dissolution of marriage granted October 1, 1979, the custody of the minor children was awarded to Susan. Various modifications in the amount of support to be paid by James have been made, and on October 10, 1989, the court entered an order increasing the unallocated support figure to $134 per week for both children. On November 14, 1989, Susan filed a motion for leave to remove the parties’ daughter, Heather, from the jurisdiction of the State of Illinois and to transfer custody of the son, Eric, to James. An order allowing removal of the daughter from the State of Illinois and transferring custody of Eric to James was duly entered on December 19, 1989. On January 16, 1990, James filed a petition to modify the judgment of dissolution of marriage requesting the reduction or elimination of his child support obligation to Susan in light of the fact that he then had custody of the parties’ son. The petition was denied after hearing on February 26,1990.

James testified that his monthly income after deductions for Federal and State income-tax withholding and social security was approximately $2,300. The 1988 income-tax return showed wages and salaries of $32,843.16 and, after certain additions and deductions, his income for tax purposes was shown to be $31,732.14. He did on cross-examination testify that his income for 1989 was approximately $45,000.

It is uncontradicted that James pays $200 per month for support of a daughter of a subsequent marriage and an additional $200 per month for that daughter’s day care. Per the present court order, he pays to Susan $134 per week for the support of the minor daughter in the custody of Susan. He also has a responsibility for the support of the minor son, Eric, who is living with him.

The trial court in making its ruling with respect to the petition to modify as to support first indicated that “there certainly has been a substantial change in circumstances.” The court then, apparently based upon the testimony, found that there had not been a substantial change in circumstances insofar as the financial interests of the parties are concerned, other than its statement that Susan was going through some financial hard times and that James had relatively good financial times, that it was inappropriate to make a change without more information.

The only testimony concerning Susan and her income was a statement by stipulation of counsel that her income was approximately $660 net per month. There was no evidence concerning the needs of the child, Heather, presently in the custody of Susan. James did present testimony and a statement of his expenses with respect to the support of the minor child, Eric. This court stated in In re Marriage of Stockton (1988), 169 Ill. App. 3d 318, 325, 523 N.E.2d 573, 578:

“Modification of child support involves the threshold question of whether a substantial change in circumstances has occurred. * * *
Once it is determined a modification is required, the court should consider the factors set forth in section 505 of the Act (Ill. Rev. Stat. 1985, ch. 40, par. 505).”

In the instant case, it is clear, as the trial court first set forth, there has been a substantial change in circumstances. A change of custody is itself a substantial change in circumstances. The factors set forth in section 505 of the Illinois Marriage and Dissolution of Marriage Act (Act) should be applied (Ill. Rev. Stat. 1989, ch. 40, par. 505), and it is the responsibility of the parties to present the evidence with respect to the factors set forth therein. In this case, after the finding of substantial change in circumstances, the trial court did not determine the support figures pursuant to section 505 of the Act.

There are no guidelines for trial courts when custody is split between the parties nor when a party is responsible for the support of other children from other marriages. The factors set forth in section 505 do apply and should be considered, however. James argues In re Marriage of Flemming (1986), 143 Ill. App. 3d 592, 493 N.E.2d 666, provides authority for how to apportion support where custody of two minor children is split between James and Susan. The trial court in Flemming took the 25% figure from section 505 and divided that in half to determine that James’ responsibility should be 121/2%. James argues that Flemming provides that 121/2% should be used in the instant case. The appellate court in Flemming did not establish 121/2% as a mandate but simply approved the trial court’s rationale.

Although Susan argues that James’ income is substantially more at this time, there is no evidence presented by Susan, by cross-examination-or by request by the court for discovery that indicates that James’ net income is anything other than $2,300 per month. Considering the status of the proceedings at this time, James from his monthly income is paying $400 per month for a child other than from this marriage, $632 per month for the support of Heather and has the responsibility for the support of his son. Upon the evidence presented, the trial court’s order is clearly outside of the guidelines of section 505 of the Act.

Very little testimony was presented in behalf of Susan. At the risk of giving the parties, especially Susan, another bite at the apple to present additional evidence, it is necessary to remand this cause to the trial court for further proceedings. On remand, the trial court should consider the support paid by James for the child from a different marriage, his responsibility for the support of Eric, the financial status of Susan, as well as the needs of the daughter, Heather.

The circuit court’s order of February 26, 1990, is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

KNECHT, P.J., and SPITZ, J., concur.


author: JUSTICE LUND

text:
    DONALD E. BRYANT, d/b/a Bryant Excavating, et al., Plaintiffs-Appellees, v. THE VILLAGE OF SHERMAN, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0419
    Opinion filed October 11, 1990.

      Presney, Kelly & Presney, of Springfield (James D. Kelly, of counsel), for appellant.
    Edward F. Casey, of Casey & Casey, P.C., of Springfield, for appellees.
   JUSTICE LUND

delivered the opinion of the court:

On May 16, 1990, the circuit court of Sangamon County granted the request of plaintiffs Donald Bryant, d/b/a Bryant Excavating, James Fleck, Doris Fleck, and Charles and Mary Lou Siebert and entered a preliminary injunction barring the enforcement of an ordinance enacted by the Village of Sherman (Village), which placed weight limits on one road within the Village limits. The Village now appeals.

The facts of this case are, for the most part, uncontested. Plaintiffs Fleck and the Sieberts have owned a sand pit located west of the Village since 1974. The only access to the pit is on Sebring Road. The eastern 3,700 feet of that road are located within the Village limits. Plaintiff Bryant has been operating a sand-hauling business from that pit since 1981. He hauls the sand in trucks which weigh in excess of 10 tons. To be economically feasible, he must haul loads which weigh another 14 or 15 tons, for which he pays the owners $10 per trip. Over the last several years, he has averaged 700 to 800 trips per year.

Within the last 10 years, residential houses have been built along the southern side of Sebring Road. There are now approximately 12 homes existing, with room for several more. Prior to 1989, the Village did little to maintain the road, but subsequently began receiving pressure to better do so. In 1989, the Village upgraded the eastern 2,200 feet of Sebring Road and placed a 10-ton limit on travel upon it. This is the only road in the Village with this weight restriction.

In November 1989, the Village sent Bryant a letter, indicating it intended to place the weight limit on the road but would issue Bryant a permit to travel the road for an annual fee of $3,000 for four years. This fee was set in response to the Village engineer’s determination that, due to Bryant’s traffic, the road would have to be resealed every year rather than every three years. Bryant decided not to pay.

Therefore, in 1990, the Village enacted ordinance No. 1990 — 3 (Village of Sherman, Ill., Ordinance .1990 — 3 (1990)), imposing a 10-ton limit on trucks and commercial vehicles on Sebring Road and providing a permit can be granted to travel the road “upon such reasonable terms as the Village Board shall find appropriate.” The ordinance then provided:

“Any person or entity granted a permit for the use of Sebring Road west of Old Tipton School Road under this Section shall be responsible for payment for repair of any damages caused by the permitees [sic] use of Sebring Road west of Old Tipton School Road, and shall post, upon request of the Village of Sherman, reasonable security to hold the Village of Sherman harmless from any such damage to Sebring Road west of Old Tipton School Road, or in the alternative, the Village Board may agree' that such person or entity may reimburse the Village a specified reasonable amount for maintenance arising because of damage or wear and tear caused by the use of Sebring Road west of Old Tipton School Road by such person or entity.” Village of Sherman, Ill., Ordinance No. 1990 — 3 (1990).

On March 26, 1990, plaintiffs filed a complaint seeking to enjoin enforcement of the ordinance, alleging the ordinance is invalid and unconstitutional. Plaintiffs also sought a temporary injunction. A hearing on the request for the temporary injunction was held on May 1, 1990. On May 16, 1990, the court entered an order granting a temporary injunction, finding the ordinance may be invalid as being neither expressly nor implicitly authorized by statute and that enforcement of the ordinance would terminate the sand-pit business during the pendency of this cause. The Village now appeals this determination.

Initially, the Village contends that the complaint is insufficient in that it does not plead facts which show that plaintiffs’ legal remedies are inadequate and that they would suffer irreparable injury unless the injunction is issued. (See Redfern v. Sullivan (1982), 111 Ill. App. 3d 372, 377, 444 N.E.2d 205, 209.) However, while the Village filed a motion attacking the sufficiency of the complaint in the trial court, at no time did it make the specific allegations of insufficiency which it now makes. It is well settled that issues raised for the first time on appeal may not be considered. (Moehle v. Chrysler Motors Corp. (1982), 93 Ill. 2d 299, 303, 443 N.E.2d 575, 577.) Accordingly, this argument is properly considered waived.

The purpose of a preliminary injunction is to preserve the status quo pending a decision on the merits of the cause. (In re Adoption of Scraggs (1988), 125 Ill. 2d 382, 388, 532 N.E.2d 244, 247.) The plaintiff must establish four factors before an injunction will be granted: (1) he possesses a clearly ascertained right in need of protection; (2) he will suffer irreparable harm without the injunction; (3) there is no adequate remedy at law for his injuries; and (4) he is likely to be successful on the merits of his action. (Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 387, 483 N.E.2d 1271, 1278.) The decision to grant or deny a preliminary injunction rests within the sound discretion of the trial court and will not be disturbed absent a showing of abuse. (Kolstad v. Rankin (1989), 179 Ill. App. 3d 1022, 1031, 534 N.E.2d 1373, 1379.) Accordingly, the reviewing court’s role is limited to a determination of whether the court’s findings are against the manifest weight of the evidence. Kolstad, 179 Ill. App. 3d at 1031, 534 N.E.2d at 1379.

In arguing that the decision is incorrect, the Village firstly contends that plaintiffs do in fact have an adequate remedy at law. It insists that plaintiffs can pay for the permit and then, if they prevail on the merits, they can be reimbursed.

However, the testimony establishes that the weight limitation and fee procedure could have a devastating impact on the business. Due to the competitive nature of the business, Bryant cannot use smaller trucks. If the fee is paid, this results in an increased cost per load of between $3.50 and $4.50. This is a considerable increase, since Bryant only pays $10 for the entire load. There is sufficient evidence to support the court’s finding that no adequate remedy at law exists.

The Village next contends that plaintiffs have failed to establish that they are likely to succeed on the merits. However, before we address this assertion, it is essential to emphasize the proper focus of our inquiry. As our supreme court explained in Buzz Barton:

“In far too many cases the distinction between a temporary restraining order, a preliminary injunction, and a permanent injunction becomes blurred during the proceedings. What begins as a proceeding to obtain a temporary restraining order results in the issuance of an order that is in fact a preliminary injunction, and what starts as a proceeding to obtain a preliminary injunction results in an order that is in fact a permanent injunction. This blurring of the distinction between these three types of restraining orders was noted in both the majority and dissenting opinions in Bohn Aluminum & Brass Co. v. Barker (1973), 55 Ill. 2d 177. In a hearing on a motion for a preliminary injunction such as was held in the case before us, it is quite easy and tempting to expand the hearing into the merits of the ultimate question as to whether a permanent injunction should issue. Such a temptation should be resisted, and the distinction between the two writs should be maintained.” (Emphasis added.) Buzz Barton, 108 Ill. 2d at 385-86, 483 N.E.2d at 1277.

The purpose of a preliminary injunction is not to determine controverted rights, or to decide controverted facts or the merits of the case. (Lonergan v. Crucible Steel Co. (1967), 37 Ill. 2d 599, 611, 229 N.E.2d 536, 542.) The plaintiff is not required to make out a case which would entitle him to judgment at trial; rather, he needs only to show that he raises a “fair question” about the existence of his right and that the court should preserve the status quo until the cause can be decided on the merits. Nestor Johnson Manufacturing Co. v. Goldblatt (1939), 371 Ill. 570, 574, 21 N.E.2d 723, 725; Buzz Barton, 108 Ill. 2d at 386, 483 N.E.2d at 1277.

In the trial court, plaintiffs argued that the licensing procedure was in actuality an improper tax since it required payment to compensate the Village for wear and tear on the road. The Village responds by observing it enacted the ordinance pursuant to the provisions of section 15 — 316(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95V2, par. 15 — 316(c)), which specifically authorizes local authorities to put weight limitations on roads, and section 11 — 80—2 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 80—2), which provides that municipalities may regulate the use of the streets. It maintains the authority to enact the license provisions is an incident power to those expressly granted by the statutes and the fee is reasonably related to the purpose of the statute.

It is well settled that municipalities are without any inherent powers and may only exercise the powers delegated to them by the' General Assembly. (Chicago Real Estate Board v. City of Chicago (1967), 36 Ill. 2d 530, 537, 224 N.E.2d 793, 799; City of Bloomington v. Wirrick (1942), 381 Ill. 347, 352, 45 N.E.2d 852, 855.) These powers include those expressly granted and those implied powers which are necessarily incident to those expressly granted. (Chicago Real Estate Board, 36 Ill. 2d at 537, 224 N.E.2d at 799; Bloomington, 381 Ill. at 352, 45 N.E.2d at 855-56.) Thus, since a municipality has no power to impose any tax or license fee, that power must be expressly granted or necessarily implied in, or incident to, an express power. Bloomington, 381 Ill. at 352, 45 N.E.2d at 856.

When an ordinance is enacted requiring a license fee, that fee must bear a reasonable relation to the additional burdens imposed upon the municipality by the necessary expense involved in supervision of the ordinance. (Keig Stevens Baking Co. v. City of Savanna (1942), 380 Ill. 303, 307, 44 N.E .2d 23, 25.) This expense has been held to include the expense of issuing a license, inspection, and supervision of the ordinance. (See Keig Stevens, 380 Ill. at 307, 44 N.E.2d at 25; Chicago Cosmetic Co. v. City of Chicago (1940), 374 Ill. 384, 394, 29 N.E.2d 495, 500.) The burden is on the party asserting the ordinance’s invalidity to show the lack of a reasonable relationship. City of Chicago v. Schall (1954), 2 Ill. 2d 90, 91,116 N.E.2d 872, 872.

The license fee in the present ordinance is specifically related to the cost of maintenance of the road due to the wear and tear caused by the truck traffic. It has nothing to do with the cost of granting the permit or the cost of inspecting, investigating, or supervising enforcement of the ordinance. The Village acknowledges that, to date, no court has held that a fee related to the cost of maintenance is proper. Thus, it is apparent by this very acknowledgement that the issue is far from clear and is properly subject to further inquiry.

The Village, observing that an ordinance passed pursuant to these powers is presumed to be valid (City of Chicago Heights v. Public Service Co. (1951), 408 Ill. 604, 609, 97 N.E.2d 807, 810), insists this presumption overcomes any question as to the statute’s propriety. However, it is also well established that such an ordinance must be a reasonable exercise of that power (Landberg v. City of Chicago (1908), 237 Ill. 112, 117, 86 N.E. 638, 640; City of Chicago v. Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. (1910), 244 Ill. 220, 226, 91 N.E. 422, 425; Chicago National Bank v. City of Chicago Heights (1958), 14 Ill. 2d 135, 138, 150 N.E.2d 827, 829), and that statutes granting powers to municipalities are to be strictly construed with any fair and reasonable doubt as to the power being resolved against the municipality (Barnard & Miller v. City of Chicago (1925), 316 Ill. 519, 522, 147 N.E. 384, 385).

It was not the trial court’s function, nor is it ours, to answer the ultimate question. It is enough that a “fair question” has been raised by the party seeking the temporary injunction. Here it has been and the injunction was properly issued.

Affirmed.

KNECHT, P.J., and GREEN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE WILLIS, Defendant-Appellant.
    Fourth District
    No. 4 — 89—0798
    Opinion filed October 18, 1990.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE KNECHT delivered the opinion of the court:

Defendant Eddie Willis was convicted of two separate counts of aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(b)(6)) and (attempt) escape (Ill. Rev. Stat. 1987, ch. 38, pars. 31 — 6(a), 8 — 4(a)) and was sentenced to five years’ imprisonment for the offenses of aggravated battery and five years’ imprisonment for the offense of (attempt) escape. The trial court ordered the term of imprisonment for the offense of (attempt) escape to run consecutive with the other terms. The trial court also ordered the sentences to be served consecutively with the penalty imposed in case No. 88 — CF—126. Defendant appeals, alleging the State failed to prove defendant guilty beyond a reasonable doubt of (attempt) escape and the trial court erred in ordering him to serve a consecutive sentence for the offense of (attempt) escape. We affirm in part and vacate in part.

Defendant’s convictions stem from an incident occurring in the Vermilion County jail in which defendant was incarcerated pending charges of retail theft in case No. 88 — CF—126. Tom Rice, a correctional officer at the jail, testified on November 9, 1988, he was in uniform and working on the fourth floor of the Vermilion County jail. Officer Rice explained the fourth floor of the jail was the regular quarters for adult male inmates and the only way to exit the jail from the fourth floor was by an elevator which required a key to operate.

Officer Rice stated defendant was an inmate on November 9, 1988, in an isolation cell. At 11 a.m. that day, lunch was served to the inmates. Later, Officer Rice assumed the duty of picking up food trays which were to be slid through slots in the cell doors. When Rice approached defendant’s cell, defendant stated he was not finished eating. Rice continued to pick up other trays and then returned to defendant’s cell. Defendant stated he would not return his tray until he talked to Lieutenant Morgan. Rice explained to defendant Lieutenant Morgan was out of town and would not be back until the afternoon.

Rice stated defendant still refused to give up his food tray and Rice returned to the control room to ask Officer Thomason for assistance. Thomason and Rice returned to defendant’s cell and opened the cell door. Defendant had spilled some lettuce on the floor and said he had to pick it up. Defendant stooped down to pick up the lettuce and was putting it on the tray when suddenly he turned and hit Officer Thomason in the face with the tray. Thomason fell backwards, and Rice tried to gain control of defendant. Defendant struck Rice in the side of the face and chest, knocking him into the wall. Officer Thomason again tried to get defendant back into his cell as defendant kicked and swung at him. Defendant ran out of his cell.

Officer Thomason went to the control area to call for help. Rice again tried to locate defendant, at which point Rice noticed some people coming off the elevator. Rice saw defendant run by the control room and then jump into the air as if giving a karate kick. When Rice walked toward the area he saw several officers, including Deputy Sergeant DeBarba, Sergeant Hamer, and the sheriff, had defendant under control.

Rice described his injuries as abrasions to the right forearm and elbow, swelling of the wrist and right hand, and a bruise on the lower part of his neck. As a result of his neck injury, Rice has suffered some disabilities and has not been able to return to work. Rice will require surgery in an attempt to correct the neck injury.

Officer Leon Thomason testified, substantiating the testimony of Officer Rice. Thomason added he was attacked twice by defendant. On the second occasion, defendant had run out of the cell and into the control room, where he grabbed Thomason’s radio. He hit Thomason in the side of the head with the radio and started kicking him in the side. Thomason stated his injuries included scrapes on his head, back, and elbow.

Sheriff Gene Hughes responded to a radio call for assistance on the fourth floor of the jail. Hughes was accompanied in the elevator by Deputy Sergeant DeBarba and Sergeant Hamer. Just as Hughes got off the elevator, he heard someone yelling and saw feet coming at his face. His glasses were knocked off and he fell to the floor. Sheriff Hughes helped to secure defendant, who had been restrained by Hamer and DeBarba. Hamer and DeBarba substantiated the sheriff’s testimony.

Defendant testified he had been incarcerated in the Vermilion County jail since June 14, 1988. Defendant was placed in isolation on October 2, 1988, because of a dispute over the use of the telephone. Defendant testified after being in isolation he complained to the officers about insects in his cell. Defendant testified his complaints regarding the insects were not taken seriously. Defendant stated he was not released to eat his meals and was not given an exercise period. He did not have access to radio or television. Defendant described his epileptic seizures and his medication.

Regarding the incident on November 9, defendant stated Officers Rice and Thomason had gone into his cell to get his food tray. Defendant stated he was so nervous he dropped the tray on the floor. When he bent down to pick up the food, Thomason said, “Stupid, asshole nigger,” and then kneed defendant in the head. Defendant stated the next thing he remembered was lying on the floor with several officers holding him down.

In order to convict defendant of (attempt) escape, the evidence must show defendant intended to commit the specific offense of escape and defendant took a substantial step toward the commission of that offense. (Ill. Rev. Stat. 1987, ch. 38, pars. 31 — 6(a), 8 — 4(a).) A defendant’s intent does not have to be expressed but can be inferred from the defendant’s actions or surrounding circumstances. (People v. Terrell (1984), 99 Ill. 2d 427, 459 N.E.2d 1337.) It is not a defense to the charge of attempt that because of a misapprehension of circumstances it would have been impossible for the accused to commit the offense attempted. (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4(b).) Each attempt case must be decided upon its own unique facts. People v. Brown (1979), 75 Ill. App. 3d 503, 394 N.E.2d 63.

Here, it is clear defendant performed a substantial step toward the commission of the crime of escape and defendant did so with the intent to commit such crime. Defendant caused Officers Rice and Thomason to unlock and enter his cell. Defendant then used the pretense of picking up spilt food to attack the officers and escape from his cell. Defendant ran past the control room, and at some point was in the control room. He also ran to the elevator. Defendant attacked additional officers who attempted to subdue him. Defendant did not stop his pursuits until physically restrained. The evidence was more than sufficient to prove the offense charged.

Defendant contends the trial court erred in sentencing him to a consecutive term of imprisonment for the offense of (attempt) escape. Defendant contends his conduct of attacking the officers and attempting to escape were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective. Accordingly, defendant contends the requirements of section 5 — 8—4(a) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — -8—4(a)) have not been met.

The imposition of consecutive terms of imprisonment is governed by section 5 — 8—4 of the Code, which provides in pertinent part:

“(a) When multiple sentences of imprisonment are imposed on a defendant at the same time, or when a term of imprisonment is imposed on a defendant who is already subject to sentence in this State or in another state, or for a sentence imposed by any district court of the United States, the sentences shall run concurrently or consecutively as determined by the court. When a term of imprisonment is imposed on a defendant by an Illinois circuit court and the defendant is subsequently sentenced to a term of imprisonment by another state or by a district court of the United States, the Illinois circuit court which imposed the sentence may order that the Illinois sentence be made concurrent with the sentence imposed by the other state or district court of the United States.. The defendant must apply to the circuit court within 30 days after the defendant’s sentence imposed by the other state or district of the United States is finalized. The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, or where the defendant was convicted of a violation of Section 12 — 13 or 12 — 14 of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutively. Sentences shall run concurrently unless otherwise specified by the court.
(b) The court shall not impose a consecutive sentence except as provided for in subsection (a) unless, having regard to the nature and circumstances of the offense and the history and character of -the defendant, it is of the opinion that such a term
is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” Ill. Rev. Stat. 1987, ch. 38, pars. 1005 — 8—4(a), (b).

A statute which is unambiguously worded must be enforced according to the plain meaning of its language. (In re Estate of Donnelly (1983), 111 Ill. App. 3d 1035, 445 N.E.2d 49.) The plain language of section 5 — 8—4 authorizes imposition of a consecutive sentence in cases not involving Class X or Class 1 felonies and not involving severe bodily injury if there has been a substantial change in the nature of the criminal objective and the court finds a consecutive sentence is required to protect the public from further criminal conduct by the defendant. People v. Paino (1985), 137 Ill. App. 3d 645, 484 N.E.2d 1106.

Here, the trial court sentenced defendant to a consecutive term relying solely on section 5 — 8—4(b) of the Code. In doing so, the trial court found a consecutive sentence was necessary to protect the public from further criminal conduct by defendant. The trial court made no finding regarding the requirement of section 5 — 8—4(a) that the offenses cannot be part of a single course of conduct during which there was no substantial change in the nature of the criminal objective.

The term “conduct” refers to an act or series of acts and the accompanying mental state. (Ill. Rev. Stat. 1987, ch. 38, par. 2 — 4.) Accordingly, here, the imposition of consecutive sentences depends upon both the existence of separate acts and separate motivation behind those acts. (Paino, 137 Ill. App. 3d at 652, 484 N.E.2d at 1111; People v. Perruquet (1983), 118 Ill. App. 3d 293, 454 N.E.2d 1055.) Defendant’s acts of aggravated battery against Officers Rice and Thomason and his attempted escape from jail were not separate acts accompanied by separate motivations. The information charging defendant with (attempt) escape alleged the battery upon Officers Rice and Thomason was a substantial step toward the commission of an escape. Moreover, this was the State’s theory of the case at trial.

The trial court erred in sentencing defendant to a consecutive term for the offense of (attempt) escape. Though we uphold defendant’s convictions, we vacate the imposition of a consecutive sentence for the offense of (attempt) escape. Defendant’s term of imprisonment for the offense of (attempt) escape shall be served concurrently with his sentences for the offenses of aggravated battery.

Affirmed in part; vacated in part.

STEIGMANN and McCULLOUGH, JJ., concur.