text:
    JOSEPH J. McCarthy et al., Plaintiffs-Appellants, v. ROBERT STREIT, Indiv. and in his official capacity as Worth Township Republican Committeeman, et al., Defendants-Appellees. — JOSEPH DONAHUE et al., Petitioners-Appellants, v. RAYMOND F. MURPHY et al., Respondents-Appellees (Raymond F. Murphy et al., Cross-Petitioners and Appellees; Joseph J. McCarthy et al., Cross-Respondents-Appellants; Ray Heaster et al., Cross-Respondents). — ROBERT J. STREIT et al., Petitioners-Appellees, v. ARTHUR BLISS, Respondent-Appellant (Worth Township Electoral Board et al., Respondents).
    First District (1st Division)
    Nos. 1—89—0127, 1—89—0705, 1—89—0706 cons.
    Opinion filed May 8, 1989.

      Odelson & Sterk, Ltd., of Evergreen Park (Mathias W. Delort and Burton S. Odelson, of counsel), for appellants Joseph Donahue, George P. Vlasis II, Dave Gallagher, Joseph J. McCarthy, Maureen Murphy, Richard Nick Ruggiero, Robert H. Telander, Herb Elzinga and Arthur Bliss.
    Robbins, Rubinstein, Salomon & Greenblatt, Ltd., of Chicago (Robert M. Winter, of counsel), for appellee Raymond Murphy.
    Michael C. Moses, of Chicago, for appellees Raymond E Murphy, Harry Dinaso, Marvin C. James, Michael Levinson, Daniel P. Madden, Gilbert L. Berman, Robert J. Streit, Kevin F. Morgan, Joseph A. Murray, Michael R. Davies, Russell J. Miller, and Kathleen M. Spencer.
    Rosenthal, Murphey, Coblentz and Janega, of Chicago (John Murphey, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

These consolidated appeals arose from events occurring at a Republican Party caucus held in Worth Township (the Township) on January 10, 1989, and concerning the April 4, 1989, Township elections. By the trial court’s order in No. 89 — CO—77, petitioners Robert J. Streit, Kevin J. Morgan, Joseph A. Murray, Marvin C. James, Michael R. Davies, Russell J. Miller, Kathleen M. Spencer and Harry A. Dinaso (the Streit Slate) were ordered to be placed on the ballot as the Republican candidates for various Worth Township offices to be elected in the April 4, 1989, election. The effect of that order was to deny a place on the ballot to a slate of Republican candidates including Joseph J. McCarthy, Maureen Murphy, Richard Nick Ruggiero, Robert Telander, Roy Heaster and Herb Elzinga (the McCarthy Slate).

The McCarthy Slate having been excluded from the ballot, its candidates then formed a new political party, “The Township Choice Party.” Objections were filed to their candidacies on the basis that they had participated in an established political party’s caucus and were therefore statutorily precluded from third-party candidacy. By its order in No. 89 — CO—62, the trial court ordered that eight of the nine candidates of the Township Choice Party be removed from the ballot.

The following issues are raised on appeal: first, whether the trial court was correct in finding that the first electoral board’s decision to strike the certificate of nomination of the Streit Slate created vacancies which could be filled by the Republican committeeman with candidates of his choice, and second, whether the trial court erred in removing five candidates of the Township Choice Party from the ballot. We answer both questions in the affirmative.

A statement of the facts discloses a strange series of events in the Township of Worth’s nomination process.

In Illinois, in township elections, an established political party may still nominate by way of party caucuses rather than primary election. (Ill. Rev. Stat. 1987, ch. 139, par. 59a.) Pursuant to this section, Republican committeeman Robert Streit chose to nominate candidates by caucus rather than by primary election. The caucus was held on January 16,1989.

Committeeman Streit presided at the caucus. As previously noted, two slates were nominated, the Streit Slate and the McCarthy Slate. Following the voice vote, permissible under section 6A — 1 (Ill. Rev. Stat. 1987, ch. 139, par. 59a. 1), the caucus judges declared the Streit Slate the winners. Streit then filed a certificate of nomination naming himself and his running mates the official candidates of the Republican Party.

McCarthy and those on his slate then filed a three-count action in the circuit court of Cook County, McCarthy v. Streit, No. 89 — CO— 10. Count I sought a declaratory judgment that the caucus was improperly administered and that the McCarthy Slate had won the caucus and an injunction prohibiting Streit from filing the allegedly false certificate of nomination. Count II sought similar injunctive and declaratory relief as well as monetary damages and attorney fees pursuant to 42 U.S.C. section 1988. Count III sought a declaratory judgment that the use of a voice vote at the caucus violated the plaintiffs’ right to a secret ballot as guaranteed under the Illinois Constitution, article III, section 3.

A hearing was held on the plaintiffs’ motion for a temporary restraining order on January 12, 1989. The trial court dismissed the complaint on the basis that the matter was a political question and therefore not justiciable. Plaintiffs sought an expedited appeal (McCarthy v. Streit, Ill. App. Ct. No. 89 — 0127) which was denied, in effect mooting the case as the April 4 election would have passed before the appellate court would have reviewed the case on its merits.

Streit then filed a certificate of nomination. Arthur Bliss and others filed objections to the Streit Slate on the basis that the certificate did not accurately reflect the result of the Worth Township Republican Caucus. On February 20, 1989, the electoral board impaneled to consider the matter sustained the objections, declared the nomination of the Streit Slate to be invalid and declared that those on the slate not be certified on the printed ballots for the April 4, 1989, election. (No. 89 — WTEB—7.) No one appealed from that electoral board’s decision.

On February 27, 1989, the Republican caucus reconvened and by resolution renamed the Streit Slate as the Republican Party’s candidates for the April 4, 1989, general election for Worth Township offices. The resolutions alleged that the first electoral board decision caused “vacancies in nomination” which Streit, as the Republican committeeman, was empowered to fill. Arthur Bliss filed a second set of objections to these nominations, seeking to have the resolutions to fill the vacancies declared invalid.

A second electoral board was named and on March 7, 1989, sustained the objections to the new nominations and ordered that the candidates submitted for the purpose of filling vacancies caused by the first electoral board’s action not be printed on the April 4, 1989, ballot as the Republican candidates. The Streit Slate filed a petition for judicial review of this March 7, 1989, action of the second electoral board. On March 13, 1989, the circuit court of Cook County reversed the second electoral board’s decision and ordered the Streit Slate printed on the April 4, 1989, election ballot for Worth Township.

Having been thus far excluded from the ballot, the McCarthy Slate decided to pursue a third-party bid under the newly formed Township Choice Party. Objections were filed (cases Nos. 89— WTEB — 5 and 89 — WTEB—6) alleging that McCarthy and his running mates could not pursue third-party bids as they had “participated” at the Republican caucus and were therefore precluded from participating as third-party candidates under section 6A — 1.1 (Ill. Rev. Stat. 1987, ch. 139, par. 59a. 1).

The Worth Township Electoral Board held a consolidated evidentiary hearing on the objections. Incumbent supervisor McCarthy testified that he attended the caucus and greeted people he knew but did not sign in, vote, make any motions or in any way encourage or discourage his name from being put into nomination. The unrebutted testimony of nominees Murphy, Ruggiero and Elzinga was to the same effect. Incumbent trustee Robert Telander, also on the McCarthy Slate, did not attend the caucus.

The Worth Township officers electoral board conducted extensive hearings after which it ruled that trustee candidates Joseph Donahue, George P. Vlasis II and David Gallagher had participated at the Republican caucus and were therefore precluded from third-party candidacy. The board found, however, that Joseph McCarthy, Maureen Murphy, Richard Ruggiero, Robert Telander, Ray Heaster and Herbert Elzinga had not participated at the caucus and therefore were not precluded from third-party candidacy. The basis for the board’s decision to remove Donahue, Vlasis and Gallagher was that each had signed an affidavit at the caucus which included a disclaimer that signing in constituted participation and would preclude an individual signing from filing thereafter as a third-party candidate. The other candidates had not signed the affidavit. The board found the evidence relating to their presence or actions at the caucus insufficient to warrant a determination that they had participated in the caucus.

Petitioners-appellants Donahue, Vlasis and Gallagher filed a petition seeking to overturn the electoral board’s decision and be restored to the ballot. The objectors filed a cross-petition, seeking to have McCarthy, Murphy, Ruggiero, Telander, Elzinga and Heaster removed from the ballot. The trial court affirmed the electoral board’s decision as to petitioners-appellants, thereby keeping them off the ballot, but reversed the board’s decision as to the cross-respondents-appellants (including candidate Telander), thus removing them from the ballot. These appeals followed.

As stated previously, appeal No. 89 — 0127 is moot.

At issue in appeal No. 89 — 0706 is whether the trial court erred in ruling that vacancies occurred on the Republican slate due to the decision of the first electoral board that the certificate of nomination was invalid, and that those vacancies could be filled by resolution with the same candidates who had been previously stricken. See Ill. Rev. Stat. 1987, ch. 46, pars. 10 — 11, 7 — 61.

Under section 7 — 61 (Ill. Rev. Stat. 1987, ch. 46, par. 7 — 61):

Section 10 — 11 of the Election Code provides that, “Any vacancy in a nomination by caucus of an established political party for a township or municipal office shall be filled in accordance with Section 7 — 61 of this Code.” Ill. Rev. Stat. 1987, ch. 46, par. 10 — 11.

“Any vacancy in nomination occurring after certification but prior to 15 days before the general election shall be filled within 8 days after the event creating the vacancy.”

That there were vacancies in the Republican Party’s slate of candidates seems to be undisputed in this case. These vacancies were created by the decision of the first electoral board which on February 6, 1989, sustained Arthur Bliss’ objections to the so-called Streit Slate, expressly finding that the January 2, 1989, Republican caucus certificate of nomination did not accurately reflect the results of the caucus. Had that first electoral board certified the McCarthy Slate as the Republican Party candidates and ordered the county clerk to print the McCarthy Slate on the ballot, that dispute could then have been judicially reviewed, saving time and expense. Obviously that electoral board concluded that it had no jurisdiction to order the McCarthy Slate put on the ballot, generating the instant litigation. By reason of the first electoral board’s action, as of February 20, 1989, there were no properly certified candidates of the Republican Party.

The vacancies in the Republican Party candidates for the various Worth Township offices in the April 4, 1989, election caused by the unappealed electoral board decision of February 20, 1989, had to be filled by February 28, 1989. The Illinois Election Code provides that “any vacancy in nomination occurring after certification but prior to 15 days before the general election shall be filled within 8 days after the event creating the vacancy.” See Ill. Rev. Stat. 1987, ch. 46, pars. 7 — 61, 10—11.

Logic, common sense, and parliamentary procedure would seem to dictate that the initial caucus be reconvened. Unfortunately, the Illinois Election Code does not clearly provide for doing so. In reading the Code with respect to vacancies in a party’s nominations for township officers, the Code is ambiguous.

First the Code provides for township committeemen. They are not public officers and are only accountable to the members of political parties. (People v. Kramer (1928), 328 Ill. 512, 519, 160 N.E. 60.) The powers vested in the township committeemen are not spelled out in the Illinois Election Code. The Code merely states that “[e]ach committee and its officers shall have the powers usually exercised by such committees and by the officers thereof, not inconsistent with the provisions of this Article.” (Ill. Rev. Stat. 1985, ch. 46, par. 7— 8(i).) Nothing in the act expressly confers on a township committeeman the power to fill vacancies in his parties’ slate of candidates. Nor are there any statements in this record disclosing what powers are “usually exercised” by a township committeeman. It appears, however, that it is consistent with this general grant of authority that where vacancies appear, the committeeman would be empowered to fill them.

In reaching the conclusion that vacancies in nomination existed and that Streit had the authority to fill them, the trial court relied on People v. Hartley (1897), 170 Ill. 370, 48 N.E. 950. In Hartley, a convention was held and the certificate of nomination was prepared but the county clerk refused to place the nominees on the ballot for the reason that the certificate had not been filed 30 days before the day of the election. The Republican county central committee then met and filled the alleged vacancies by nominating the same nominees for the same offices. The county clerk again refused to place the names of the nominees on the ballot and the relators filed a writ of mandamus to compel him to do so. The language of the law then in effect provided that “should any certificate of nomination be held insufficient or inoperative by the officer with whom they may be filed, the vacancy or vacancies thus occasioned may be filled by the political party *** making the original nominations ***.” (1891 Ill. Laws 110.) The court on appeal concluded that when the first certificate became inoperative, it followed under the provisions of the statute that there were vacancies to be filled. The court found that the vacancies were filled in the manner prescribed by law and that there was no reason why the vacancies could not be filled with the original nominees. (People v. Hartley, 170 Ill. at 372.) As in Hartley, there were clearly vacancies here and no basis for finding that they could not be filled by the previous nominees.

The McCarthy Slate, which is challenging committeeman Streit’s attempt to fill the vacancies in nomination with the original Streit Slate candidates, had already requested to be placed on the ballot as third-party candidates. In addition, the McCarthy Slate failed to file a timely cross-appeal of the first electoral board’s decision within the 10 days required by the Election Code. (Ill. Rev. Stat. 1987, ch. 46, par. 10 — 10.1.) As a result, members of the McCarthy Slate were ineligible to run as Republicans on April 4, 1989, and there were no Republican candidates on the proposed ballot.

The legislature has provided that a vacancy in nomination occurs where a candidate dies before the election, declines the nomination or “for other reasons.” (See Ill. Rev. Stat. 1987, ch. 46, par. 7 — 61.) The fact that the first electoral board determined that the original Streit Slate was ineligible, pursuant to section 6A — 1 (Ill. Rev. Stat. 1987, ch. 139, par. 59a), did not affect their eligibility at a later date to be appointed to fill in existing vacancies. (Ill. Rev. Stat. 1987, ch. 46, pars. 7 — 61, 10 — 11.) Accordingly, we find that the trial court correctly determined that vacancies existed in the nominations of the Worth Township Republican Party, that the vacancies could be filled by resolution of the Republican committeeman pursuant to statute (Ill. Rev. Stat. 1987, ch. 46, pars. 10 — 11, 7 — 61), and that the vacancies also could be legally filled by the same candidates who had filled the Streit Slate of candidates which had been found by the Worth Township Electoral Board to have been improperly nominated originally by party caucus.

At issue in appeal No. 89 — 0705 is what constitutes “participation” in a political party’s caucus under section 6A — 1.1 (Ill. Rev. Stat. 1987, ch. 139, par. 59a.l), so as to preclude an individual from subsequently becoming an independent candidate of a new political party for the same election.

The objectors charged that the McCarthy Slate candidates who are parties to this appeal participated in the Worth Township Republican Party caucus and thus disqualified themselves from running as candidates of the newly formed Township Choice Party. The electoral board found that candidates Donahue, Vlasis and Gallagher had participated in the caucus and were therefore precluded from third-party candidacy. The board found, however, that McCarthy, Murphy, Ruggiero, Telander, Heaster and Elzinga had not participated and so were not precluded from third-party candidacy.

The board’s decision was based on sections 6A — 1.1(b)(5), (b)(6) (Ill. Rev. Stat. 1987, ch. 139, par. 59a. 1(b)(5), (b)(6)), which state that individuals “participating at an established political party township *** caucus shall *** be precluded from signing a petition of nomination for independent or new political party candidate for the same election [and] be precluded from becoming an independent candidate or candidate of a new political party for the same election.” Such laws are commonly referred to as “lock-out” rules. They are intended to protect the integrity of party nominations and to protect the electoral process from splintered parties and disruptive factionalism. (Citizens for John W. Moore Party v. Board of Election Commissioners (7th Cir. 1986), 794 F.2d 1254, 1260.) Clearly, if the McCarthy Slate participated at the Worth Township Republican Caucus, they could not then regroup and file as candidates of a third party.

Thus, the determinative question is what constitutes “participation” in a caucus for the purposes of section 6A — 1.1(b)(6) (Ill. Rev. Stat. 1987, ch. 139, par. 59a.1(b)(6)). Although other sections of the Election Code specifically set out the conduct being regulated (see, e.g., Ill. Rev. Stat. 1987, ch. 46, par. 7 — 10), the lock-out rule does not define what constitutes “participation.”

In Special Tax School District No. 3 v. State (1943), 153 Fla. 292, 296-97, 14 So. 2d 405, 407-08, the Florida Supreme Court concluded that participation, as it applies to an election, means nothing short of actual voting. In Key Life Insurance Co. v. Tharp (1965), 253 Miss. 774, 781, 179 So. 2d 555, 558, the court made the following observations as to the meaning of participation:

“ ‘The word “participating” has no clear and unmistakable meaning. In its primary sense, it means simply a sharing or taking part with others but when it is applied to a particular situation, it takes on secondary implications that render it ambiguous. Under some circumstances it may denote a mere passive sharing while under other circumstances an implication of active engagement may accompany its use.’ ” Quoting Fireman’s Fund Indemnity Co. v. Hudson Associates, Inc. (1952), 97 N.H. 434, 91 A.2d 454.

Under either definition, it appears that in the context of a caucus, the individuals claimed to have participated must either have voted or done something more active than simply being present and observing.

The board ruled that the candidates pursuing this appeal neither voted nor participated in the caucus. The objectors argued that the candidates’ precaucus discussion of issues or candidates and post-caucus filing of lawsuit No. 89 — CO—10 constituted participation sufficient to prohibit their participation as third-party candidates. The trial court found that upon hearing their names placed in nomination, the candidates should have affirmatively taken steps to have their names withdrawn. We believe the interpretation of “participation” of the objectors and the trial court is overly broad and would have the effect of prohibiting the candidates from exercising their rights of freedom of association and freedom of speech, under the first amendment.

Under the caucus law, one does not voluntarily or officially become a candidate at a caucus. A person’s name may be nominated from the floor and if the person is elected by the caucus, he then has the opportunity to file a statement of candidacy and statement of economic interests to accompany the committeeman’s certificate of nomination by caucus. Had the members of the McCarthy Slate signed in, placed names in nomination or voted, there would be no question but that they had “shared” in the caucus process and could thereafter be precluded from filing third-party candidacies. Whatever the reasons for their not doing so, the appellants here did none of those things and we do not believe that mere attendance or other peripheral activity, standing alone, should operate to foreclose their third-party candidacies.

Public policy favors candidates’ rights to be on the ballot when the laws restricting their access are unclear. (Merz v. Volberding (1981), 94 Ill. App. 3d 1111, 1117, 419 N.E.2d 628; Johnson v. Cook County Officers Electoral Board (N.D. Ill. 1988), 680 F. Supp. 1229, 1233.) In light of the purpose of the lock-out rule and the harshness of the result, we believe it should only be implemented where there are specific, provable, documented actions of a candidate which would be fatal to a third-party candidacy. We are not persuaded that the nonaction of failing to have their names withdrawn from nomination constitutes “participation” under the statute. Accordingly, we find that in case No. 89 — 0705, the circuit court of Cook County erred in finding that the appellants here had participated in the Republican Party caucus and were thereby ineligible to file as candidates of an independent third party for the April 4, 1989, Worth Township consolidated election.

The McCarthy Slate candidates have also raised the issue that the lock-out statute is unconstitutionally vague and overbroad as it fails to enumerate actions that would constitute participation at a caucus. In light of our finding that the above candidates did not participate, we decline to reach this issue.

For the above-stated reasons, case No. 89 — 0127 is dismissed as moot; the judgment of the circuit court of Cook County in case No. 89 — 0706 is affirmed; and the judgment of the circuit court of Cook County in case No. 89 — 0705 is reversed and the cause is remanded with directions to order the reinstatement of the appellants to the ballot of the Township Choice Party for the April 4,1989, election.

No. 89 — 0127, dismissed.

No. 89 — 0706, affirmed.

No. 89 — 0705, reversed and remanded with directions.

BUCKLEY and QUINLAN, JJ., concur.

      Although appeals were initially filed by both petitioners-appellants and cross-respondents-appellants, only the latter have pursued this appeal.

      Even if nominated by the Republican caucus, the McCarthy Slate or any individual member then could have declined the nomination and run as an independent or as the member of a new party, as did Adlai Stevenson in his 1986 race for governor, withdrawing as candidate of the Democratic Party and running as the candidate of the newly formed third-party, the Solidarity Party.


source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
    IRIS SHERMAN, Plaintiff-Appellant, v. JOHN ROKACZ, Defendant-Appellee.
    First District (2nd Division)
    No. 1—87—2911
    Opinion filed May 9, 1989.

      Milton Blum, of Chicago, for appellant.
    Lupel & Bunn, of Chicago (Warren Lupel and Charles P. Fox, of counsel), for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Iris Sherman, sued the defendant, John Rokacz (Rokacz) and Aaron Spiezer (Spiezer) for monies due on a contract. The case was dismissed as to Spiezer, who had been adjudicated bankrupt. The trial between Sherman and Rokacz was heard by Judge Virgil Timpe, who entered judgment for Rokacz at the close of the plaintiff’s case. Judge Timpe retired, and the plaintiff’s post-trial motion was denied by Judge Sidney Jones.

In late 1979, the plaintiff contracted to purchase an apartment building in Oak Park owned by Mr. and Mrs. McDermott. The plaintiff managed the apartment building for roughly two years. In November 1981 she entered into an agreement with Spiezer in which she assigned to him her interest in the contract with the McDermotts. Although Rokacz was not a party to that contract, the plaintiff testified that by February 1982, when the closing took place, she had learned of his involvement with Spiezer.

Spiezer and Rokacz set up a general partnership, the sole purpose of which was to manage the apartment building. Rokacz acquired his interest in the installment contract when Spiezer assigned it to the partnership. The interest the partnership held on the property was subject to the plaintiff’s obligations to the McDermotts and to the partnership’s obligations to the plaintiff. Rokacz paid $13,000 for his interest. Spiezer was the managing partner who handled the day-to-day operations of the building, because Rokacz had put up a disproportionate share of the purchase funds.

Later in 1984, the McDermotts assented to the plaintiff’s assignment to Spiezer and Rokacz. Spiezer continued to manage the property during the two years following the purchase. Rokacz had no involvement in the management. The plaintiff was required to hire attorneys on several occasions because Spiezer and Rokacz, both attorneys, failed to fulfill their various obligations under the agreements and to make timely payments. The plaintiff would receive notices from Mr. McDermott informing her that he in turn had received notices from the bank that the first and second mortgages had not been paid. She would then contact Spiezer, and he would follow up by making payments at the bank. The plaintiff was forced to pay the attorney fees for McDermott pursuant to the 1984 agreement. The amount of attorney fees she paid was not disputed at the trial.

The plaintiff said that in July 1983 she first made mortgage payouts and that she did not receive any payments from Spiezer and the defendant from June 1, 1983, to June 1, 1984. In March 1984 Spiezer told her that he had a buyer interested in the property. He also promised Rokacz that, upon closing the deal, he would pay him a total of $16,000 which consisted of $13,000 of Rokacz’s initial investment and $3,000 in appreciation. Spiezer also said that he would hold Rokacz harmless for any claims made against the partnership after the closing which was set for June 1,1984.

Before the scheduled closing the plaintiff and her attorney, Leonard Blum, learned that the sale of the property would not generate sufficient funds to satisfy all the payments and the attorney fees owed to her and to McDermott for which she was responsible. Rokacz became aware of this deficiency from the plaintiff’s attorney, Blum, the night before the scheduled closing.

Rokacz went to the closing the following day to assure that he received the $16,000 he had been promised and that the deficiency would be paid. The plaintiff, Blum, Rokacz, Spiezer, a representative of McDermott and the buyers all met at Safeco Title Company. Spiezer revealed that the scheduled sale would still result in a $15,000 shortfall. Blum and Spiezer went into a conference room without Rokacz to determine how Spiezer could come up with the shortfall in order that the closing could go forward the following day. The plaintiff claimed that a total of approximately $38,000 was owed to her including the attorney fees that she had advanced and which she owed to McDermott.

After negotiations between Blum and Spiezer were concluded, Spiezer agreed that the plaintiff would receive approximately $24,000 from the sale; he also signed a $10,000 promissory note drawn up by Blum; and he orally promised to deliver $4,000 or $5,000 to the plaintiff on June 4, the new day set for the closing. According to Blum, Rokacz said that he wished to incur no further interest expenses and that he would like the note discounted if it were paid the first week of July rather than September 1. The plaintiff agreed to this. Rokacz refused to sign the note until he was paid the money Spiezer owed him. Spiezer told Rokacz that he would take care of him and promised to pay him on June 4.

On that date, the plaintiff and Blum arrived at the title company office in the morning. Rokacz and Spiezer were not present, and attempts to reach them by phone at their offices proved unsuccessful. The plaintiff left at approximately 1 p.m., but before she left she instructed Blum to do whatever was necessary to close the sale that day. Two hours later the title company personnel informed Blum that a 3 p.m. deadline existed for transactions to be concluded that day. Although Rokacz and Spiezer still had not arrived, Blum took those steps necessary to close the deal including the preparation of a quitclaim deed that the plaintiff had signed earlier and the purchase of revenue stamps from the registrar’s office. Later he took the deed to the registrar's office for filing purposes.

The next day the defendant contacted Blum and asked what had occurred the day before. Blum explained that the closing had gone through despite the fact that Spiezer never appeared and that the plaintiff was forced to conclude the deal without receiving all the money due her. Neither Rokacz nor Spiezer ever attempted to block the sale. In August 1984 Rokacz and Spiezer entered into a settlement agreement in which Spiezer again agreed to indemnify Rokacz for any of Rokacz’ partnership liabilities.

On September 19, 1984, the plaintiff filed her complaint against Rokacz and Spiezer to recover the $14,000 difference between what she received as a result of the sale and what she was entitled to under the original assignment contract. The judge entered judgment for Rokacz at the close of the plaintiff’s case for reasons that are not as clear as we would prefer.

To determine what issue is properly before us, we have had to tread a tortuous path. Rokacz filed a motion to dismiss the complaint, which was denied. No point is made here of the denial. He filed an answer and seven months later an affirmative defense. That affirmative defense alleged, in substance, that the debt being sued upon merged into a confession note subsequently signed by Spiezer, promising to pay $10,000 to Sherman. In oral argument in this court, the attorney for Rokacz, who did not draft the affirmative defense, conceded that the allegations of the affirmative defense make no sense. He also conceded that it did not plead either novation or accord and satisfaction.

At the close of the evidence Rokacz’ attorney made a motion for a finding in his favor. At that time he presented a “Trial Memorandum,” which argued that the evidence established an accord and satisfaction. He argued orally, on one hand, that the second agreement was a new agreement which extinguished the old one; and on the other hand, he argued that his client was not a party to the second agreement and, therefore, was not liable under it. He identified the issue as follows:

“The issue is whether or not Aaron Spiezer was acting for himself or whether he was acting for a partnership when the agreements of June 1 were made. To whichever way you answer those questions, a judgment must be for the defendant. Because if he was acting for the partnership, he had no authority to do so. And if he was acting for himself, then Mr. Rokacz isn’t liable.”

He addressed the court twice; but he never uttered the word “novation”; nor did the plaintiff’s attorney.

In summarizing the evidence before he made his decision, the trial judge, Virgil Timpe, said this:

“Novation, meaning a new contract to substitute for the old contract with its possible attorney fees clauses. Novation, however, is a new contract. A contract needs promises or consideration moving between the parties. I suppose we would have to see whether some new consideration moved from Rokacz for consideration of a contract, a motivation of substitution of cancellation of the attorney fees clauses. On the other hand, the court is going to rule opposite that.” (Emphasis added.)

The judge continued to make other observations about the steps that the plaintiff had taken in completing the sale of the property. He concluded with these remarks:

“So at least she [the plaintiff] would seem to presume that she was receiving some consideration other than closing. Perhaps that could be the consideration that would support a finding that a new contract was made. I think that when she took it on herself to help that closing she presumed or supposed that she should have had the authority of Mr. Rokacz to go ahead with that closing. If not his authority, at least his permission so that she might go ahead with the closing and get out of the closing as what she could as consideration. I would rather suppose that than suppose that she did something more extreme such as obtaining a sale without any authority. I would prefer to trace some consideration allowed at least by Mr. Rokacz, perhaps allowed by the fact that he remained away from the sale and failed to block the sale. Perhaps that was his oral promise. Perhaps that’s what he gave as his consideration. It would seem that Miss Sherman presumed or supposed that she somehow obtained the statute, authority to be able to move that closing. On that, this motion of this one defendant is granted.”

The plaintiff’s post-trial motion was heard by Judge Sidney Jones. The memorandum in support argued that the defendant had failed to establish accord and satisfaction. Considering that the defendant’s trial memorandum argued only accord and satisfaction, it was understandable that the plaintiff concluded that the trial court’s remarks constituted a finding that accord and satisfaction had been established.

Rokacz filed a response in which he alleged accord and satisfaction was not the basis of the court’s ruling. The response did not allege that a novation had been proved. We do not have a report of proceedings for the hearing on the motion; consequently, we do not know the reason for Judge Jones’ denial of the motion.

Again understandably, the plaintiff’s opening brief in this court is devoted entirely to the question of accord and satisfaction. The defendant’s brief, however, raises three arguments: (1) since the plaintiff’s brief argues exclusively the question of accord and satisfaction and accord and satisfaction was not the basis of the trial court’s ruling, this appeal should be dismissed; (2) the trial court correctly held that the evidence established a novation; and (3) the June 1, 1984, agreement between the plaintiff and Spiezer constituted an accord and satisfaction. The last argument is not advanced in the alternative although novation and accord and satisfaction are separate and distinct defenses.

We will first consider whether novation is properly an issue before us. A case much in point is Consoer, Townsend & Associates v. Addis (1962), 37 Ill. App. 2d 105, 185 N.E.2d 97, in which the trial court entered judgment for the defendant in a breach of contract action. On appeal the defendant argued three theories of defense, one of which was novation and which was the basis of the trial court’s ruling. Novation had not been pleaded but was injected into the defendant’s final argument. The appellate court refused to consider it, even though there was some evidence to support it and it had the “added weight of the court’s judgment.” (Consoer, 37 Ill. App. 2d at 109.) The court noted that novation must be pleaded and that the defendant had not made any motion to amend before or after judgment. The court also referred to the rule that the theory upon which a case is tried cannot be changed upon review even by the successful party to the suit. Consoer, 37 Ill. App. 2d at 109.

We will, therefore, not consider whether the evidence establishes novation. It was not pleaded. Rokacz’ attorney told us during oral argument that he had argued novation in the trial court. He did not. He also argued here that the trial court’s remarks should be construed to be a finding of novation. They should not. To use the defense attorney’s own words in the trial court, “You can’t plead one thing, attempt to prove another, and then argue a third.” Our decision would be the same if the defendant had argued novation and if the trial judge had made his decision on that basis. We arrive at this decision, even though the plaintiff has not objected to the argument. This court’s obligation to avoid any weakening of appellate jurisdiction is involved as well as any right of the plaintiff. See Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 324 N.E.2d 417.

The next question is whether we may consider the issue of accord and satisfaction. That also was not pleaded, and the first inkling given to the court or the plaintiff’s counsel was at the motion for a finding at the close of the plaintiff’s case. It would appear that the defendant’s argument of accord and satisfaction has also run afoul of the rule. But an exception to the rule is that a court may consider a theory not pleaded if the other party proceeded at trial as though the theory had been properly pleaded. (Village of Park Forest v. Angel (1976), 37 Ill. App. 3d 746, 347 N.E.2d 278.) The plaintiff’s attorney made no objection to the argument that the evidence established accord and satisfaction on the ground that it had not been pleaded; and, in fact, he filed a post-trial motion which argued the sufficiency of the evidence to establish accord and satisfaction. Indeed, he makes no objection in this court to our consideration of that defense. Therefore, we will consider it because, unlike novation, it was presented to the trial court; and we construe the judge’s remarks to be a finding that accord and satisfaction had been established. The only issue before us, therefore, is whether the evidence establishes accord and satisfaction.

An accord is an agreement or settlement of an existing dispute, controversy or demand which presupposes a disagreement as to the amount due. (Quaintance Associates, Inc. v. PLM, Inc. (1981), 95 Ill. App. 3d 818, 420 N.E.2d 567.) It is an affirmative defense, and the defendant has the burden of proving all its elements. (Kreutz v. Jacobs (1976), 39 Ill. App. 3d 515, 349 N.E.2d 93.) The following elements must be present: (1) a bona fide dispute; (2) an unliquidated sum; (3) consideration; (4) a shared and mutual intent to compromise the claim; and (5) execution (or satisfaction) of the accord. (Koretz v. All American Life & Casualty Co. (1968), 102 Ill. App. 2d 197, 243 N.E.2d 586.) The specific intent to settle a claim can be “inferred from the parties’ words and actions.” Gord Industrial Plastics, Inc. v. Aubrey Manufacturing, Inc. (1982), 103 Ill. App. 3d 380, 384, 431 N.E.2d 445.

The judge ruled in the defendant’s favor at the close of the plaintiff’s case. The standard on review, therefore, is whether the court’s ruling is manifestly erroneous. (Kokonis v. Kotrich (1980), 81 Ill. 2d 151, 407 N.E.2d 43.) While we have some doubts over the sufficiency of the proof to establish a meeting of the minds between the plaintiff and Rokacz, we have no doubt that the defendant has failed, as a matter of law, to show the existence of a bona fide dispute and an unliquidated sum, and that he has failed to prove that the accord was satisfied. We emphasize that the burden was on the defendant to show a bona fide dispute and an unliquidated sum, particularly since the defendant had not pleaded an accord and satisfaction and the plaintiff had no reason to believe that the amount for which he was suing would be an issue.

All the evidence leaves no doubt that the Spiezer-Rokacz partnership owed the plaintiff a specific sum of money plus an amount due for attorney fees she had advanced and for which the partnership was liable under its agreement with the plaintiff. The only portion of the record to which Rokacz points is his own following testimony:

“Q. Now, do you recall Mr. Spiezer speaking of bringing in the sum of $5,000 the following Monday?
A. I — yes, I recall he said they were short. And there was a room full of people. I was not in that room full of people. Where this discussion was taking place, it was outside. And, Aaron [Spiezer] came outside, I think, and indicated, Aaron and Mr. Blum outside, I think, and they were discussing the fact there was a deficiency. There was money owed and they were trying to resolve it. Part of the deficiency included some things Aaron was very emphatic about that he should not have to pay. And they were discussing how much there should be paid and how much Aaron could come up with. And, at the time, at the time I said to Aaron, ‘Where’s my money?’ He said, ‘Don’t worry, I’ll take care of you.’ ”

None of that testimony indicates that Rokacz disputed the amount owed to the plaintiff or that even Spiezer disputed it. All that is clear from that testimony is that the two parties to the contract were trying to see if their respective numbers matched. Moreover, the defendant testified that his partner thought he “should” not have to pay certain “things,” not that he claimed that he was not legally obligated to pay them. That testimony can hardly be said to have established by a preponderance of the evidence that there was, in fact, a bona fide dispute and an unliquidated sum. There must be a showing that the claim or demand was disputed in good faith. (Jackson v. Security Mutual Life Insurance Co. (1908), 233 Ill. 161, 84 N.E. 198; Hennecke v. Warp (1952), 347 Ill. App. 425, 107 N.E.2d 185.) Merely asserting the existence of a dispute does not establish it. (Teague v. John E. Burns Lumber Co. (1914), 187 Ill. App. 225.) The only dispute that the defendant has established was one between him and Spiezer.

We also hold that the defendant has failed to prove that the accord was satisfied. The requirements of satisfaction have been set out in Staver Carriage Co. v. American & British Manufacturing Co. (1914), 188 Ill. App. 634, 644-45:

“An agreement to do a thing in consideration of the settlement of a controversy or claim is not a satisfaction. It is the doing of the thing agreed upon that has that effect. As Mechera in his work on Sales, vol. 2, page 678, sec. 806 says:
‘It is not the second contract but the performance of it which discharges the original contract.’
In First National Bank of Arkansas City v. Leech, 36 C.C.A. 262, 94 E 310, the Court said:
‘An agreement or accord which is to operate as a satisfaction of an existing liability must, before it can have that effect, be fully executed. It is not enough that there be a clear agreement or accord and a sufficient consideration; but the agreement or accord must be executed before it can be pleaded as an accord and satisfaction. If part of the consideration agreed on be not performed, the whole accord fails.’ ” (Emphasis added.)

See also In re Estate of Cunningham (1924), 311 Ill. 311, 142 N.E. 740.

The accord in this case was an agreement to accept a promissory note for $10,000 and a payment in cash of $4,000 or $5,000 on the day of the closing. The note was executed and accepted; but the cash was not paid. Therefore, the accord was not satisfied.

The defendant’s claim that all of the consideration was tendered and accepted is incorrect; and the cases the defendant cites are distinguishable and, in fact, support the plaintiff’s position. In Maryland Casualty Co. v. Cushing (7th Cir. 1948), 171 F.2d 257, the plaintiff was a surety which had a claim against the defendant for conversion of funds belonging to the bank for whom the defendant worked. The bank made a claim against the defendant which the plaintiff paid. The defendant executed a note in favor of the plaintiff in exchange for the release of any tort action against him. The trial court held, and the court of appeals agreed, that the evidence established that the plaintiff accepted the note as payment or waiver of the antecedent tort action and that the action on the note was barred because of the defendant’s bankruptcy. In short, the plaintiff got everything it asked for.

In Rayburn v. Day (1861), 27 Ill. 46, the plaintiff sued on a note signed in the defendant firm’s name by another defendant. The firm had ceased to exist at the time the note was signed. The trial court rejected the note but entered judgment on the account for which the note had been given. The evidence established that it was not intended that the note would discharge the original debt. We repeat that this case supports the plaintiff’s position.

For. these reasons, we judge that any finding that the defendant had established a bona fide dispute, an unliquidated sum and accord and satisfaction was manifestly erroneous; and the judgment of the circuit court is reversed and remanded for a new trial.

Judgment reversed and remanded.

HARTMAN and SCARIANO, JJ., concur.

       Justice Egan participated in the decision of this case prior to his assignment to the sixth division.


author: PRESIDING JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DEJUAN BROWN et al., Defendants-Appellees.
    First District (3rd Division)
    Nos. 1—86—3509, 1—86—3510 cons.
    Opinion filed May 10, 1989.

      Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Linda Woloshin, and Pamela Hughes, Assistant State’s Attorneys, of counsel), for the People.
    Randolph N. Stone, Public Defender, of Chicago (Paul D. Bellendir and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellee DeJuan Brown.
    Richard T. Cozzola, of Cabrini Green Legal Aid Clinic, of Chicago, for appellee David Lowe.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Defendants, DeJuan Brown (Brown) and David Lowe (Lowe), were indicted for murder and armed violence in the circuit court of Cook County in connection with the death of Richard Earners on December 22, 1985. Prior to trial, Brown filed a motion to suppress statements and Lowe filed a motion to quash arrest and suppress statements. After an evidentiary hearing, the trial court granted both motions. The State appeals under Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)).

Chicago police officers John McHugh and James Ward arrested Brown, a 16-year-old at the time, between 11 a.m. and 12 on December 23, 1985, for an unrelated battery. The officers took him to the police station at the housing project where he lived. Shortly after his arrival there, Brown was transported to the Chicago Avenue station and delivered to the custody of a youth officer. The police at Chicago Avenue called Brown’s grandmother, informed her of his arrest and requested that she send someone to pick him up. While Brown was at Chicago Avenue, two detectives came to him and told him, “Snooky and Lowdown said you did this murder,” apparently referring to the murder of Richard Earners. Brown told the officers he did not know what they were talking about. Eventually, Brown was transferred to Area 6 headquarters at Belmont and Western. He arrived there sometime between noon and 5 p.m.

At about 5 p.m., Officers McHugh and Ward interrogated Brown at Area 6 regarding Earners’ murder. During this interrogation, according to the police, Brown implicated Lowe in Earners’ murder. McHugh, Ward and Area 6 detective Dennis Gray interrogated Brown again approximately half an hour later. Brown was interrogated by an assistant State’s Attorney between 8 and 8:30 p.m. Thereafter, Brown’s mother, who had arrived at Area 6 sometime earlier, was allowed to see him. After speaking with his mother, Brown declined to give a written statement.

The main issues raised by Brown’s motion to suppress and the evidence adduced thereon were: (1) whether he was advised of his Miranda rights, that he could be tried as an adult, or that he could have a parent, interested adult or youth officer present during questioning; (2) whether he asked to see his mother and, if so, whether the police told him he could not do so; (3) whether he was otherwise mentally or psychologically coerced or scared into giving a statement; and (4) whether his mother was misled as to his whereabouts on the afternoon of his arrest to prevent her from being present during his questioning.

On the morning of December 28, 1985, McHugh and Ward attempted to interview Lowe, also a 16-year-old at the time, regarding Earners’ murder. They wanted to interview him because Brown had said that Lowe “was the individual with him who had knocked on the door,” apparently, when Earners was shot. When they found that Lowe was not home, the officers informed his mother that he might be a witness to a murder or involved in it and that they wanted to speak to him. The officers interviewed Lowe at his apartment on the afternoon of December 28. Sometime after the interview, the officers searched an apartment at 1157 Cleveland for the gun used in Earners’ murder. After recovering a revolver from the apartment, the officers met with Lowe and his uncle, James Wright, “on the street” and Lowe identified the revolver as the weapon used in Earners’ murder.

McHugh and Ward next saw Lowe and his uncle at about 7:30 p.m. that day. The officers had either called Lowe’s uncle and asked him to bring Lowe to Chicago and Orleans or had made prior arrangements with Lowe to meet them there. At any rate, the officers asked Lowe to get out of Wright’s car and told him that he “would have to” go with them to Area 6 for questioning. The police, who had not received any new information since speaking with Lowe earlier in the day, wanted to question him because they did not know whether he was only a witness to Earners’ murder or was actually involved in it. Wright told the officers he would be at Area 6 after picking up his girlfriend. Wright did not see Lowe again on December 28 although he did go to Area 6 and stayed there 60 to 90 minutes. Lowe gave an assistant State’s Attorney an oral statement at about 10:15 p.m. He gave &■ written statement around 12. Later on the morning of December 29, the police called Lowe’s mother and informed her he had been charged with murder.

The main issues raised by Lowe’s motion to quash arrest and to suppress his statements and the evidence adduced thereon were: (1) whether he had been under arrest when he went to Area 6 with McHugh and Ward; (2) if he had, whether they had probable cause to arrest him at that time; (3) whether he was advised of his Miranda rights, that he could be tried as an adult or that he could have a parent, interested adult, or youth officer present during questioning; (4) whether he was beaten or otherwise mentally or psychologically coerced into making a statement; (5) whether he had asked to see his mother or his uncle during his interrogations and, if so, whether the police had told him he could not do so; and (6) whether James Wright had asked to see Lowe upon his arrival to Area 6 and, if he had, whether the police improperly prohibited him from doing so.

TRIAL COURT’S FINDINGS AND CONCLUSIONS

The trial court’s findings and conclusions in ruling upon both motions included the following.

It was undisputed that, after Brown arrived at Area 6 from Chicago Avenue at 1 p.m., he remained alone in an interview room for approximately four hours. Brown’s mother called Area 6 at 5 p.m. and was told he was being questioned about a murder. Upon her arrival at the violent crimes office of Area 6, she was told Brown was still at Chicago Avenue. Chicago Avenue correctly told her Brown was at Area 6 when she inquired there. She returned to Area 6 a second time and was told to wait. The record was clear that Brown’s mother “was literally put on a merry-go-round” when she was attempting to locate him. “All of the time she was being shunted between [Chicago Avenue] and Area 6,” Brown was being questioned. Based on the totality of the circumstances, Brown’s statement had been involuntary.

Lowe had been arrested when he was placed in the police car at the gas station. When he was interviewed at his apartment, he had denied knowledge of or involvement in Earners’ murder. The police ignored Lowe’s mother’s request to be called if they wanted to talk to him further. The officers made no effort to contact his mother or to notify a youth officer. The police made an elaborate effort “to maneuver” Lowe “into a street location *** to clean up their arrest and their subsequent actions of isolating him from adult members of his family until they had secured the admissions they sought.” The police also flagrantly violated section 3 — 2 of the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 703 — 2), requiring an officer who takes a juvenile into custody to make a reasonable attempt to notify a parent, and police department regulations concerning the interrogation of juveniles. It was thus patently clear that they “went far beyond prescribed limits in their efforts to secure a statement” from Lowe. From the totality of the circumstances, Lowe’s arrest was illegal and all of his statements thereafter were involuntary.

Opinion

On appeal, the State contends that Brown’s statements were voluntary where: (1) he confessed after his mother and a youth officer had been notified; (2) he was at Area 6 for only an hour before he confessed; and (3) he was not threatened or coerced in any way into making a statement. In asserting that the trial court erred in granting Brox ,’s motion, the State focuses on the allegedly erroneous finding that his mother was being “shunted” between Area 6 and Chicago Avenue.

A reviewing court cannot disturb a trial court’s ruling on a motion to suppress a defendant’s statement or confession unless it is against the manifest weight of the evidence (People v. Davis (1983), 97 Ill. 2d 1, 20, 452 N.E.2d 525; People v. Wipfler (1977), 68 Ill. 2d 158, 172-73, 368 N.E.2d 870) or manifestly erroneous (People v. Winters (1983), 97 Ill. 2d 151, 158, 454 N.E.2d 299). Questions of credibility are to be resolved by the trial court. (Davis, 97 Ill. 2d 1, 452 N.E.2d 525; People v. Bagar (1987), 160 Ill. App. 3d 370, 373, 513 N.E.2d 628.) Moreover, the correctness of the trial court’s ruling, not its rationale, is controlling. (People v. Dyer (1986), 141 Ill. App. 3d 326, 490 N.E.2d 237.) The key inquiry in determining the admissibility of a confession is whether it was made freely and voluntarily, without compulsion or inducement of any sort or whether the defendant’s will was overcome when he confessed. (People v. McGhee (1987), 154 Ill. App. 3d 232, 507 N.E.2d 33.) Voluntariness is to be determined from the totality of the circumstances. (People v. Travis (1984), 122 Ill. App. 3d 671, 462 N.E.2d 654.) Finally, receipt of an incriminating statement from a juvenile is a sensitive concern and the greatest care must be taken to ensure that it is voluntary. People v. McGhee (1987), 154 El. App. 3d 232, 507 N.E.2d 33.

Even assuming the truth of the State’s asserted grounds for a finding that Brown’s statements were voluntary and that his mother was not “shunted” around to prevent her presence during his interrogations, we cannot reverse the trial court’s ruling on Brown’s motion. A reversal of the court’s ruling would also have to be based on the conclusion, either explicit or implicit, that the manifest weight of the evidence revealed that defendant was advised of his Miranda rights and knowingly and intelligently waived them. However, the manifest weight of the evidence does not reveal that to be the case.

At the suppression hearing on December 23, 1985, Brown consistently denied that he was ever advised of his rights, including his Miranda rights. The State’s witnesses contended the opposite. However, this merely rendered the evidence on this issue in equilibrium. In this regard, the facts that more witnesses claimed that Brown had been advised of his rights than claimed he had not and that the State’s witnesses were police officers and a former assistant State’s Attorney were of no consequence. Obviously, such facts do not and cannot, alone, justify according more weight to the State’s evidence than to a defendant’s evidence.

In reaching our conclusion, we also rely on the undisputed fact that neither the police officers nor assistant State’s Attorney who interrogated Brown obtained his signature on a rights waiver form. Surely, it must be apparent to law enforcement officers that a defendant’s signature on such a form would be of great value in refuting a later claim that he had not knowingly and intelligently waived his Miranda rights before making an inculpatory statement.

By the same token, the failure to obtain a defendant’s signature on such a form carries great weight in support of that allegation. In this regard, we note that the State’s witnesses did not assert that, although he agreed to waive his rights, Brown simply refused to sign a rights waiver form. Rather, they admitted that they did not even ask him to do so. While the former circumstance diminishes the importance of not obtaining a defendant’s signature on such a form, the latter circumstance magnifies its importance. Where a defendant later alleges a statement was involuntary and the State alleges the contrary, the fact that the police did not even ask him to sign such a form justifies an inference that they did not ask because they had not advised him of his rights or because he had not, contrary to the State’s assertion, agreed to waive his rights.

In view of Brown’s denial that he had been advised of his Miranda rights and the fact that he did not sign a rights waiver form, the manifest weight of the evidence does not reveal that he knowingly and intelligently waived those rights. We must therefore affirm the grant of Brown’s motion to suppress.

The evidence with regard to whether Brown had asked to see his mother was also conflicting. As such, we cannot say that the manifest weight of the evidence reveals that Brown had not asked to see her. Neither does the manifest weight of the evidence reveal that Brown’s mother was allowed to see him as soon as it was reasonably practicable to do so. In relying upon this fact, we recognize that a juvenile does not have a per se right in Illinois to consult with a parent before questioning or to have the parent present during questioning. (In re S.D.S. (1982), 103 Ill. App. 3d 1008, 1012, 431 N.E.2d 759, cert. denied (1982), 459 U.S. 869, 74 L. Ed. 2d 128, 103 S. Ct. 153.) However, where they indicate an interest by their presence, parents should be allowed to confer with their child before, and to be present during, any questioning. The presence or absence of the parent is a factor in evaluating the voluntariness of a statement or confession under the totality of the circumstances test. In re S.D.S., 103 Ill. App. 3d 1008, 431 N.E.2d 759.

Brown’s mother testified that she arrived at Area 6 late in the evening, around 7 o’clock on December 23. It is a reasonable inference from the testimony of the State’s witnesses that they were not aware of her presence at Area 6 until they ended their interrogation of Brown at about 8:30 p.m. However, the fact that the assistant State’s Attorney and police officers who were questioning Brown did not know of his mother’s presence at Area 6 is insufficient to avoid the obligation to allow a parent to see his or her child where, as here, the parent has indicated an interest by her presence at the police station. Under such circumstances, the officers who know of the parent’s presence have an affirmative duty to inform those actually questioning a juvenile of the parent’s presence and request to see her child. And, in order to ensure the true voluntariness of a statement, those actually questioning the juvenile have an affirmative duty to stop the questioning and allow the parent to confer with her child. Where, as here, one or both of these duties is not fulfilled, that fact is properly considered in evaluating the voluntariness of a statement or confession.

Under the totality of the circumstances surrounding the custodial interrogations of Brown, we believe the trial court’s grant of his motion to suppress was not against the manifest weight of the evidence.

The State next contends that the police had probable cause to arrest Lowe and that his statement was voluntary under all the facts and circumstances of his interrogation thereafter.

Even assuming, as the State asserts, that Lowe’s arrest was legal, i.e., accompanied by probable cause, and that we would therefore reverse the trial court’s ruling on his motion to quash arrest, we cannot reverse the trial court’s ruling on his motion to suppress unless we also find that the manifest weight of the evidence reveals that his statements were otherwise voluntary. However, as with Brown’s statements, we do not find this to be the case.

At the suppression hearing, Lowe consistently denied having been advised of his Miranda rights after his arrest up to the time of his written statement. He also claimed that he asked about his uncle’s whereabouts but received no answer from the police and that his request to call his mother was denied. Lowe further claimed that he was beaten and threatened into making a statement to the police and assistant State’s Attorney and that the police directed his answers to the attorney’s questions.

The State’s witnesses contradicted Lowe’s testimony in all of these respects. Moreover, Lowe’s written statement reflected that he was not made any promises or threatened in exchange for the statement. Additionally, Lowe admitted being advised, at the time of his written statement, of his Miranda rights and that he could have his mother present during questioning. However, the effect of this latter fact is diminished by his testimony that he did not understand those rights and by the failure of the written statement to reflect that he was informed he could have his mother present during interrogation. In the final analysis, the contradictions in the evidence on these matters preclude a finding that the trial court’s ruling on Lowe’s motion to suppress was against the manifest weight of all the evidence.

We find that the failure of the police to allow Lowe’s uncle to see him and to be present during his questioning, although he had indicated an interest by his presence at Area 6, also rendered Lowe’s statements involuntary. In this regard, we believe that, while there is no per se right to speak to an adult in all cases, whether a juvenile has been afforded an opportunity to speak with an interested adult who is available to do so is of great importance in later determining the voluntariness of any statements by the juvenile.

For all of the foregoing reasons, the order granting defendants’ motions to suppress are affirmed.

Affirmed.

RIZZI and WHITE, JJ., concur.


author: JUSTICE RIZZI

text:
    AL TIERNEY et al., Plaintiffs-Appellants, v. THE VILLAGE OF SCHAUMBURG, Defendant-Appellee.
    First District (3rd Division)
    No. 1—88—1524
    Opinion filed May 10, 1989.

      Bernard J. Sarley, of Elk Grove Village, for appellants.
    Jack M. Siegel, of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiffs, A1 Tierney, Cathy Tierney, Bernard J. Sarley, Jan Sarley and Carrol E. Siebold, brought this action for injunctive and declaratory relief to prevent the defendant, Village, of Schaumburg (the Village), from constructing a 50-foot-wide collector or secondary street, without sidewalks on either side, adjacent to their homes. Plaintiffs alleged that the construction of the collector or secondary-street would violate the Village’s own ordinance. The trial court denied plaintiffs’ request for a temporary restraining order to preserve the status quo. Plaintiffs appeal. We reverse and remand with directions.

On April 18, 1988, plaintiffs filed a verified complaint, seeking a temporary, preliminary and permanent injunction, as well as declaratory relief. The next day, plaintiffs filed a petition for a temporary restraining order and a preliminary injunction to maintain the status quo with regard to the construction of the 50-foot-wide collector or secondary street. The petition reincorporated and realleged the facts contained in the verified complaint which was attached to the petition. The Village filed an answer to the petition, but it did not file an answer to the verified complaint. The trial court, and the parties, treated the petition solely as a motion for a temporary restraining order.

Although there was a hearing on the petition, no evidence was presented. The trial court heard only the arguments of respective counsel. Since there was no evidentiary hearing, and the Village did not file an answer denying the allegations in the verified complaint, we consider as true all well-pled facts alleged in the complaint. (Opportunity Center of Southeastern Illinois, Inc. v. Bernardi (1986), 145 Ill. App. 3d 899, 905, 496 N.E.2d 340, 344; Stasica v. Hannon (1979), 70 Ill. App. 3d 785, 788, 388 N.E.2d 1110, 1111-12.) Also, we note that the Village’s answer to the petition does not deny significant facts that are alleged in the verified complaint. These facts are as follows: (1) the roadway that the Village intends to construct is classified as a collector or secondary street as stated in the Village’s own ordinance; (2) the roadway is to be 50 feet wide rather than the 80-foot width that is required by the Village’s existing ordinance for collector or secondary streets; (3) the roadway will not have sidewalks on either side although the Village’s existing ordinance requires that all streets have sidewalks on both sides; (4) the 50-foot-wide collector or secondary street would be “extremely dangerous” because it “would *** [subject] the plaintiffs, on a daily basis *** to the hazards of an errant automobile”; and (5) the “plaintiffs will *** [have] an unsafe road abut their backyards.” We believe that for purposes of pleading, these facts are ultimate facts and not mere conclusional facts because the basic facts warranting the statements are sufficiently set forth within the context of the statements. Thus, the facts which we have stated are well-pled facts which we consider true. The significance of these facts will become evident as the other facts are related.

On July 26, 1977, the Village passed ordinance No. 1435 (0-1435). Ordinance 1435 approved a planned unit development known as King-sport Village East. Ordinance 1435 provides that the “developer will dedicate a 50-foót wide easement on the north property line for future roadway extension.” Ordinance 1435 does not provide for the inclusion of sidewalks on either side of the future roadway extension.

On October 24, 1978, the Village passed ordinance No. 1639 (0-1639), entitled “Subdivision Control Regulations of the Village of Schaumburg.” Ordinance 1639 provides for minimum right-of-way widths and the minimum design standards for particular street classifications. Ordinance 1639 states that streets classified as collector or secondary streets shall have a minimum right-of-way width of 80 feet. Ordinance 1639 also states, “Sidewalks are required along both sides of all streets.”

On April 12, 1988, the Village began construction of the Biesterfield Road Extension Project (Project). The purpose of the Project is to build a collector or secondary street as a roadway extension on the 50-foot-wide easement on the north property line that is referred to in 0-1435. Under the Project, there will not be a sidewalk on either side of the collector or secondary street.

On appeal, plaintiffs argue that construction of the Project would be dangerous and unsafe to their families because the Project provides for the construction of a collector or secondary street with a 50-foot right-of-way width, rather than the minimum 80-foot right-of-way width that is required by 0-1639, and because the Project does not provide or leave room for sidewalks on both sides of the street as required by 0-1639. The Village contends that the 50-foot-wide street does not violate the provision in 0-1639, which requires that the minimum width for collector or secondary streets be 80 feet. The Village relies upon the following provision in 0-1639: “The subdivision control regulations are applicable to planned unit developments as authorized in the zoning regulations of the Village of Schaumburg, except as specifically varied in the individual P.U.D. implementing ordinance.” The Village argues that since 0-1435 states that the “developer will dedicate a 50-foot wide easement on the north property line for future roadway extension,” 0-1435 has specifically varied the 80-foot width requirement for collector or secondary streets in 0-1435.

We disagree with the Village’s argument. Plainly, the language in 0-1435 does not provide for the construction of a collector or secondary street within the 50-foot-wide easement for future roadway extension. Thus, we believe that the language in 0-1435 does not purport to abolish or reduce the 0-1639 minimum "width requirement for collector or secondary streets. We therefore conclude that the minimum 80-foot requirement for collector or secondary streets in 0-1639 is not “specifically varied” by 0-1435.

The Village also contends that because 0-1435 does not provide for sidewalks in that part of the ordinance which states that the “developer will dedicate a 50-foot wide easement on the north property line for future roadway extension,” 0-1435 has specifically varied the requirement in 0-1639 that sidewalks are required along both sides of all streets. We disagree. Merely because sidewalks are not mentioned in the pertinent provision in 0-1435 does not mean that 0-1435 has specifically varied the requirement in 0-1639 that all streets have sidewalks on both sides. Actually, the opposite conclusion is true. Thus, we believe it is clear that 0-1435, which was adopted before 0-1639 was adopted, does not specifically vary the requirement in 0-1639 that sidewalks be constructed along both sides of all streets.

Since construction of the Project violates 0-1639, the Village is violating its own ordinance by going ahead with the Project. However, a municipality must follow its own ordinances. (People ex rel. J.C. Penney Properties, Inc. v. Village of Oak Lawn (1976), 38 Ill. App. 3d 1016, 1019, 349 N.E.2d 637, 640.) If a municipality violates its own valid ordinance, the municipality’s action is illegal and courts have jurisdiction to enjoin the illegal action. Ralston Purina Co. v. Village of Wood Dale (1971), 132 Ill. App. 2d 262, 265, 267 N.E.2d 678, 680.

Here, if the Village had wished to change 0-1639, which establishes that a collector or secondary street must have a minimum right-of-way width of 80 feet and that all streets must have sidewalks on both sides, the Village should have strictly complied with the legal requirements for amending or repealing the ordinance, including notice and hearing. Since the Village did not legally amend or repeal 0-1639, the Village’s action in constructing the Project is illegal, and the courts have jurisdiction to enjoin the Village’s illegal action.

Having concluded that the courts have jurisdiction to enjoin the Village’s illegal action, we next address whether the trial court abused its discretion in denying the request for a temporary restraining order. (See McRand v. Van Beelen (1985), 138 Ill. App. 3d 1045, 486 N.E.2d 1306; Blue Cross Association v. 666 North Lake Shore Drive Associates (1981), 100 Ill. App. 3d 647, 427 N.E.2d 270.) In order for a temporary restraining order to issue, the facts must demonstrate that (1) the party seeking relief has a protectable right; (2) he will suffer irreparable injury if injunctive relief is not granted; (3) his remedy at law is inadequate; and (4) there is a likelihood that he will succeed on the merits. Houseknecht v. Zagel (1983), 112 Ill. App. 3d 284, 291, 445 N.E.2d 402, 407.

Here, the salient facts are that the Village’s illegal action will substantially interfere with plaintiffs’ right to the peaceful enjoyment of their homes because the violation will result in the creation of a hazardous and unsafe street abutting their property. We believe that these facts clearly demonstrate that plaintiffs have a protectable right in this matter.

Moreover, the transgression that is involved in this case is of a continuing nature. Where the transgression is of a continuing nature, irreparable injury is presumed to follow if the protectable right is not safeguarded. (See McRand v. Van Beelen, 138 Ill. App. 3d 1045, 1054, 486 N.E.2d 1306, 1313; Witter v. Buchanan (1985), 132 Ill. App. 3d 273, 292, 476 N.E.2d 1123, 1127.) In addition, we believe that in the present case the presumed irreparable injury to plaintiffs if they are denied a temporary restraining order is much greater than the harm to the Village if the equitable relief is granted. In this regard, the following observation in plaintiff’s brief is worthy: “Parenthetically, it is important to state at this point that, if construction of the road is enjoined, the defendant is not left with no alternative other than to abort its construction. If the Village feels strongly enough that construction of the Biesterfield Road Extension is necessary, they have the lawful authority to institute condemnation proceedings against the plaintiffs. By doing so, they can acquire the necessary land to meet the right-of-way requirements for this road. In that case, the road would meet Village ordinance requirements and would be safe.” Under the circumstances, we conclude that the operative facts in this case establish a presumption that the plaintiffs will suffer irreparable injury if the Village’s illegal action is not halted.

We next examine whether plaintiffs have an adequate remedy at law to protect their right to the peaceful enjoyment of their real property. In order to have an adequate remedy at law which will preclude injunctive relief, the remedy must be clear, complete and as practical and efficient to the ends of justice and its prompt administration as the equitable remedy. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 549, 370 N.E.2d 223, 227; People ex rel. Fahner v. Community Hospital (1982), 108 Ill. App. 3d 1051, 1058, 440 N.E.2d 200, 206.) In the present case, although plaintiffs’ remedy at law in the form of monetary damages might be clear, such a remedy would not be complete or as practical and efficient to the ends of justice and its prompt administration as the equitable relief that is sought. Moreover, monetary damages alone do not prevent the harm created when the harm involves the construction of a hazardous and unsafe road abutting one’s property. If plaintiffs are awarded solely monetary damages, while the 50-foot-wide collector or secondary street remains, the street will still be in violation of the Village’s own minimum safety requirements and as hazardous and unsafe as it would be notwithstanding the remedy at law. As a result, plaintiffs do not have an adequate remedy at law.

We shall next consider whether plaintiffs have established that they are likely to be successful on the merits. In this regard, a party is not required to make out a case which in all events will warrant relief on the merits. Rather, the moving party need only raise a fair question as to the existence of the right claimed and that he will be entitled to the relief prayed for if the proof should sustain his allegations. (See People ex rel. Hartigan v. National Anti-Drug Coalition (1984), 124 Ill. App. 3d 269, 273, 464 N.E.2d 690, 694; People ex rel. Fahner v. Community Hospital, 108 Ill. App. 3d 1051, 1057, 440 N.E.2d 200, 205.) Under the circumstances, which we have already discussed, we believe it is patent that plaintiffs have sufficiently established that they are likely to succeed on the merits.

In reviewing this case, we appreciate that the decision to grant or deny injunctive relief is within the discretion of the trial court. However, if it appears upon review that the trial court abused its discretion in denying injunctive relief, a reviewing court will reverse the trial court. Here, for the reasons which we have stated, we conclude that the trial court abused its discretion in denying plaintiffs’ request for a temporary restraining order.

The trial court’s denial of plaintiffs’ request for a temporary restraining order is, therefore, reversed and the case is remanded with directions to conduct further proceedings for the determination of what, if any, equitable relief plaintiffs are entitled trader the circumstances that exist after remandment, consistent with what is stated in this opinion. In addition, the trial court shall permit the pleadings to be amended to take into account the circumstances that exist after remandment, and the trial court shall grant the relief in equity or at law to which plaintiffs are entitled on the amended pleadings or upon the evidence. See generally Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 617, 11-107.

Reversed and remanded with directions.

FREEMAN, P.J., and WHITE, J., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOUGLAS SMITH, Defendant-Appellant.
    Second District
    No. 2—88—0395
    Opinion filed May 9, 1989.
    Terry A. Ekl and Paul P. Moreschi, both of Connolly, Ekl & Williams, P.C., of Clarendon Hills, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury defendant, Douglas Smith, was convicted of driving while under the influence of alcohol (Ill. Rev. Stat. 1985, ch. 95½, par. 11 — 501(a)(2)) and was sentenced to a one-year term of probation conditioned on service of 30 days periodic imprisonment, alcohol evaluation, counseling, and payment of court costs. Defendant appeals, contending that his trial counsel was so inadequate and incompetent as to deprive defendant of his right to counsel and a fair trial.

Defendant was charged by complaint with the offenses of driving under the influence of alcohol (Ill. Rev. Stat. 1985, ch. 95½, par. 11— 501(a)(2)), transportation of alcoholic liquor in a motor vehicle (Ill. Rev. Stat. 1985, ch. 95½, par. 11 — 502(a)), and driving on the wrong side of a roadway (Ill. Rev. Stat. 1985, ch. 95½, par. 11 — 701(a)). The State’s sole witness was Sergeant Carl Dillenkoffer, the arresting officer, who testified that on December 19, 1986, at approximately 2:15 a.m., while driving east on Roosevelt Road, he saw a car backing rapidly out of the driveway of the Egghead Software store building onto Roosevelt Road. As it was backing up, the car went over the curb, then drove off the grass abruptly. The car then crossed over the two westbound lanes of Roosevelt Road and the center of the roadway and drove west in the eastbound lane towards the officer’s squad car. Dillenkoffer flashed his headlights, and the car returned to the westbound lanes, crossed them and hit the curb before it straightened out. Dillenkoffer stated that he turned his car around and activated his red lights for the car to pull over. When the car pulled over, it again hit the curb.

Sergeant Dillenkoffer further testified that defendant was the driver of the car and, when he got out, the officer noticed defendant had difficulty walking. When asked to produce his driver’s license, defendant handed the officer an American Express credit card; it was returned to defendant, and he then fumbled through his wallet before producing the license. The officer noticed that defendant’s eyes were very bloodshot and glassy; his speech was slurred and there was a strong odor of alcohol on defendant’s breath. The officer also noticed that defendant was wet from the groin area down his right leg, as if he had voided himself, and the officer later confirmed at the station that defendant had done so.

When asked to perform a balancing and a walk and turn test, defendant told the officer he had a physical condition where one leg was shorter than the other, and several toes had been removed from one foot, so he could not properly perform the tests. Officer Dillenkoffer then had defendant perform a field sobriety test called the horizontal gaze nystagmus test (HGN).

When the officer testified that defendant failed the test and was placed under arrest, defendant’s trial counsel, John A. Myers, Jr., objected to the lack of foundation for the conclusion defendant failed the test, and it was sustained by the trial court. The State then asked the witness to describe the HGN test and he responded:

“Okay. In the horizontal gaze nystagmus, you are looking at an individual’s eyes, and you are observing three different things. You are observing what’s called smooth pursuit, in which placing an object in front of your nose, directly in contact with the front of your nose, about four or five inches away, you move that object — in this particular case I used a pen light — left and right. And during the course of that movement from left to right, you are watching the eyes to see how smoothly they pursue that object being moved in front of them. There are two points available for that particular test, because there are two eyes. You are basing it on the left and the right eye. The word smooth pursuit is used because a person who has had some degree of alcohol, within the system, introduced to his body — the movement is not smooth. It’s erratic and it’s jerky and it moves like this, in this fashion. The more or the faster the jerk, the more alcohol influences that particular nerve. The second part of that test is while doing that same test, you are looking for what’s called the angle of onset, the point at which, in looking at that eye from 45 degrees, it starts to become jerky, more movement, more action. Then you are looking for the maximum deviation. The maximum deviation is once it’s brought out — at what point here, towards the eye— this here is zero, go all the way out is complete 90, at 45 is just to the side here. You are looking for the amount of erratic eye movement when an individual is moving the eye. Therefore, in the test, you are going to the left and to the right of the individual as you are performing that test. In each of those there are two points: smooth pursuit, two points; angle of onset, two points; and maximum deviation, two points. If all points are present, then an assumption at this point, solely an assumption, can be determined that the individual may perhaps be under the influence of alcohol.”

Officer Dillenkoffer also described the training he had received in administration of the test, as follows:

“I received it at the Kane County Sheriff’s Office, where I was instructed by two certified instructors in that. The classroom involved both written and verbal instructions, as well as practical exercises in which he had five different people come in. They had in fact been allowed to consume different quantities of alcohol, and prior to entering the room, they, in fact, submitted to breath analysis to determine the level of intoxication of each of these individuals. They came in to us as a classroom of students, whereupon we tested their eyes and looked for the particular points that I just mentioned, and then we would then score them as well as make an assumption at that point that they are either over the legal limit of .10 or under the legal limit. And then the instructors had in there one person who had just had one small sip of wine but still emitted the breath, to throw in as like a control-type situation, just to see if we were reading the eyes properly. It also involved viewing of several films in which just eyes alone were the projection on the screen, and again, the same situation. The camera was being used at that point as the focus point on the individual. We would base our assumption based on those eyes and make a determination as to how many points we would grade them, and that was graded against what those points exactly were and actually were.”

The officer testified further that, at the scene of the arrest, defendant said he had been drinking and that the officer had examined a glass which was on the floor of defendant’s car containing a liquid having the odor of alcohol, possibly bourbon or whiskey. The officer stated he had many occasions to observe persons who were under the influence of alcohol in his 18 years as a police officer and, in his opinion, defendant was in that condition at his arrest. The officer’s opinion as to the intoxication of defendant was based upon the results of the horizontal gaze nystagmus test he had performed on defendant, who had failed all six points of it, and also upon the other indicia of intoxication the officer had noted in his testimony. Officer Dillenkoffer advised defendant of the “Warnings to Motorists” and requested that he submit to a breathalyzer test. Defendant refused to do so.

On cross-examination, defendant’s trial counsel questioned Sergeant Dillenkoffer further as to his training in administering the HGN test, and the officer testified he had no training relating to other medical conditions which could cause the nystagmus condition of a person’s eyes, which was attributed here by the officer to defendant’s consumption of alcohol.

The State rested its case, and defendant called Dr. Bernard G. Milton, who was defendant’s physician and testified as an expert witness about defendant’s diabetic condition. Milton testified that defendant had several toes amputated as a result of diabetes-related gangrene. He had been diabetic since 1972 and also suffered from Legge-Perthes disease, which resulted in one of defendant’s legs being significantly shorter than the other.

Milton further testified as to the physical effects of diabetes, stating that it is dangerous for a diabetic person’s blood sugar to be too high or too low. He stated that diabetes causes the development of ketones in the lungs of the patient, and they are a form of organic compound which are commonly known as alcohol. Acetone is one of the ketones produced by the body, and, as a result of the abnormal production of acetone, a breath analysis for alcohol would not give an accurate reading of the diabetic person’s blood-alcohol content. Milton stated that a blood test is a more accurate way to test a diabetic person’s blood-alcohol content.

Dr. Milton further testified that the acetone produced in the lungs causes a diabetic’s breath to smell like alcohol. He stated that when a person is suffering from hypoglycemia, which is low blood sugar, he may speak with slurred speech and have difficulty with coordination. Hypoglycemia may also cause altered thinking or a stupor which could make the diabetic appear intoxicated. The doctor stated that if a patient is hypoglycemic, he would have to urinate frequently and that it is difficult for a physician to determine whether a diabetic person is hypoglycemic or intoxicated without performing a blood test. Dr. Milton testified that diabetes could also worsen a patient’s vision and could result in blindness due to damage to the retina. The doctor did not know if such retinopathy would have an effect on performance of the HGN test.

On cross-examination, Dr. Milton stated that he had not examined the defendant for three months prior to his arrest and agreed with a treatise that stated that when the liver of a diabetic person is processing alcohol, it cannot release its supply of glycogen, a substance which is turned into glucose by the body, and causes a lowered blood-sugar level. Consequently, diabetics must be very careful when they drink alcohol to prevent becoming hypoglycemic. The State also asked Milton if diabetic retinopathy, damage to the retina caused by diabetes, would affect the ability of the eye to move, and the doctor responded that it would not. Milton stated that he did not know if defendant suffered from retinopathy.

On redirect examination, defendant’s counsel asked Dr. Milton whether retinopathy would restrict the amount of light a person could see. The doctor replied that it could. When asked whether such a condition would restrict the ability to respond to a small moving light near the eye, Milton responded that he could not answer the question.

After Dr. Milton testified, defense counsel made a motion in limine, arguing:

“My defendant does not know at this time if he wishes to take the stand or not, without the Judge’s ruling upon defendant’s prior record, as to whether it would be explored upon his testimony or placed into issue by a certified transcript from the Secretary of State’s Office.”

The court responded:

“My general — my initial reaction would be I agree with you. I don’t believe the State should go into the defendant’s prior record. Unless something comes out in the defendant’s testimony, then that would open the door. But as a general rule, I prohibit the State from going into that.”

Immediately after this exchange, the attorneys argued over whether the glass taken from defendant’s car should be admitted into evidence, and the court ruled that it was admissible. Then, defense counsel made a motion for a directed verdict, which was denied. The defendant then called Sergeant Dillenkoffer to testify, who stated that at the police station, defendant informed him that he felt ill because his blood sugar was low. Defendant requested sugar, which the sergeant provided, and which defendant consumed. The defense rested after this testimony.

The State recalled Sergeant Dillenkoffer in rebuttal, who testified that the breathalyzer machine which would have been used on defendant could distinguish acetone from ethyl alcohol, the type of alcohol used to make alcoholic beverages.

In its closing arguments, the State emphasized four factors to establish that defendant was intoxicated: (1) defendant’s driving was erratic; (2) the sergeant’s observations as to defendant’s appearance; (3) defendant’s admission that he had a drink; and (4) that he failed all six points of the HGN test. The State characterized Dr. Milton’s testimony as not proving anything about defendant’s condition on the date of his arrest, as the testimony dealt in generalities about diabetes, and argued that the doctor could not accurately describe defendant’s physical condition at the time of his arrest.

In his closing argument, defense counsel attacked the accuracy of the HGN test and the sergeant’s ability to analyze it and argued that defendant was suffering from hypoglycemia when he was arrested and his condition was not caused by the consumption of alcohol.

The jury returned verdicts of guilty as to the offenses of driving while under the influence of alcohol and driving on the wrong side of a roadway, but found defendant not guilty of the offense of illegal transportation of alcohol in a motor vehicle, and he appeals.

On appeal, defendant contends that the conviction of driving while under the influence of alcohol should be reversed because his trial counsel was so inadequate and incompetent as to deprive him of his right to counsel. He argues that defense counsel should have objected to the admission of the HGN test results and should not have advised defendant to not testify in trial.

The applicable test in analyzing a claim of ineffective assistance of trial counsel is set forth in Strickland v. Washington (1984), 466 U.S. 688, 80 L. Ed. 2d 674, 104 S. Ct. 2052, which our supreme court adopted in People v. Albanese (1984), 104 Ill. 2d 504, 526, 473 N.E.2d 1246, 1255. (Accord People v. Rogers (1988), 172 Ill. App. 3d 471, 475, 526 N.E.2d 655, 659.) The Strickland test is a two-pronged examination that requires a defendant to show that (1) counsel’s conduct was professionally deficient; and (2) but for the deficiency, there is a reasonable probability that the fact finder would have had a reasonable doubt respecting defendant’s guilt. (Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69.) Competency of counsel is presumed (People v. Stewart (1984), 101 Ill. 2d 470, 492, 463 N.E.2d 677, 688), and counsel’s performance must be evaluated from his perspective at the time of trial (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694,104 S. Ct. at 2066).

We consider first defendant’s argument that he was denied the effective assistance of trial counsel because counsel failed to object to the introduction of the HGN test results. Alleged incompetence arising from a matter of trial tactics or strategy will not support a claim of ineffective assistance of counsel. (People v. Shunt (1987), 117 Ill. 2d 317, 370, 512 N.E.2d 1183, 1205.) Defendant argues that the failure to object to the introduction of the HGN test results was not a trial tactic, but an error due to misapprehension of the law, asserting that under People v. Vega (1986), 145 Ill. App. 3d 996, 496 N.E.2d 501, a case which had been decided prior to defendant’s trial, the evidence of the HGN test results was not admissible. The State responds that there is no certainty that the evidence would not have been admitted because in People v. Dakuras (1988), 172 Ill. App. 3d 865, 527 N.E.2d 163, decided after defendant’s trial, this court did not definitively rule that HGN test results are always inadmissible.

The testimony in the present case relating to the HGN test is similar to that in People v. Vega, where the court determined that the test results were erroneously admitted in evidence as the State failed to lay a proper foundation through expert testimony to determine the validity of the test. The court considered that the testimony of the arresting officer who administered the test, as in the present case, provided an inadequate foundation. (Vega, 145 Ill. App. 3d at 1000-01; compare People v. Seymoure (1987), 158 Ill. App. 3d 1038, 511 N.E.2d 986.) In People v. Dakuras, this court determined that the results of an HGN test to show a defendant’s blood-alcohol concentration is inadmissible in a prosecution under section 11 — 501(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501(a)(2)) as it is not a chemical test required by the Code. This court did not consider the reliability and admissibility standards for scientific testing. Dakuras, 172 Ill. App. 3d at 868, 870.

We agree, as determined by the reviewing court in People v. Vega, that a sufficient foundation for admission of the HGN test was not offered by the State in this case and the testimony and conclusions of Sergeant Dillenkoffer relating to that test would have been properly stricken, if defendant had sought to do so. We do not agree, however, that defendant was denied effective assistance of counsel by the strategy employed by his attorney in defending the case. As in People v. Vega, we also find that there was sufficient other competent evidence to sustain the verdict of the jury.

The defense offered in trial was premised upon the fact defendant suffered from a diabetic condition which produced symptoms similar to those shown by an intoxicated person. Defendant’s physician testified as an expert witness to these facts and sought to relate the diabetic symptoms to those seen in defendant by the arresting officer and in explanation of some of the indicia of supposed intoxication which resulted in defendant’s arrest. Defendant’s counsel drew the admission from the officer that he had no knowledge of other medical conditions which might cause the nystagmus condition of defendant’s eyes attributed by the officer to alcohol. It seems apparent that defendant's trial counsel wanted the arresting officer’s testimony relating to this test before the jury, knowing that defendant’s physician would testify that diabetes could damage vision and result in blindness because of injury to the retina. The test defendant now asserts evidences incompetent counsel depends for its conclusions as to intoxication upon the amount of erratic movement in the subject’s eyes. Counsel clearly sought to relate the test, and the other indicia of intoxication observed by the arresting officer, to defendant’s medical condition. That defense was feasible, but obviously not convincing to the jury.

Defendant also argues that his trial counsel erroneously advised him not to testify because of a groundless fear on the part of his attorney that the State would then impeach defendant with his prior record. In support of this argument defendant refers at length in his brief to the alleged facts stated in an affidavit defendant filed, by his new attorney, in support of his post-trial motion. The affidavit also purports to state at length and in detail the trial testimony he would have given had defendant been advised by his trial counsel to testify on his own behalf. Defendant argues that his trial counsel’s tactical decision that he should not testify was so unsound as to make clear counsel’s incompetency and ignorance of the law relating to admission of defendant’s past driving record. Defendant concludes that his decision not to testify on his own behalf was thus not made knowingly and voluntarily and his conviction should be reversed, citing People v. Wright (1986), 111 Ill. 2d 18, 488 N.E.2d 973.

The trial judge rejected these arguments when presented by defendant’s new counsel in support of his post-trial motion and was also not persuaded by present counsel’s further assertion that defendant was punished by his trial attorney not only by the way he handled the case, but by requiring a fee in excess of $10,000.

It is apparent that trial counsel was concerned that if defendant should testify he might be impeached by his prior record. Counsel may well have also concluded that defendant could add little to the evidence already before the jury through the officer’s testimony and that of defendant’s physician. Certainly the jury was well aware of defendant’s diabetic condition and the medical symptoms which it could produce. That was what the defense relied upon for acquittal, and it was presented to the jury with evidentiary support. Had defendant chosen to testify and been impeached by his past driving record after inadvertently opening the door, the result would have been even more certain.

Whether certain witnesses will be called to testify or objections to the admission of evidence will be made in trial are strategic and tactical decisions which are seldom reviewed (People v. Starks (1983), 122 Ill. App. 3d 228, 233-34, 460 N.E.2d 1181), and we -will not do so further here.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

INGLIS and WOODWARD, JJ., concur.