text:
    CAROLYN M. HASKELL et al., Plaintiffs-Appellees, v. WALTER J. BLUMTHAL et al., Defendants (Arab Termite and Pest Control of Danville, Inc., Defendant-Appellant).
    Fourth District
    No. 4 — 90—0150
    Opinion filed October 11, 1990.

      Bruce Baber, of Paris, for appellant.
    Dale A. Cini, of Ryan, Cini & Bennett, of Mattoon, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

Defendant Arab Termite and Pest Control of Danville, Inc. (Arab), appeals an order entered January 26, 1990, in the circuit court of Edgar County, denying its request that plaintiffs Carolyn M. Haskell and Duane L. Haskell be required to pay its attorney fees pursuant to section 10a(c) of the Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1989, ch. 121V2, par. 270a(c)). That section states:

“In any action brought by a person under this Section, the Court may award, in addition to the relief provided in this Section, reasonable attorney’s fees and costs to the prevailing party.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. I2IV2, par. 270a(c).

Arab requested fees and costs in regard to count VIII of plaintiffs’ complaint, which was directed against Arab charging it with violating the Act. That count had been dismissed in bar of action on plaintiffs’ motion after a jury trial had started. After a hearing on Arab’s request, the circuit court issued a letter opinion on January 22, 1990, and on January 26, 1990, entered the order on appeal which awarded Arab costs but denied its request for fees. The court explained its denial of fees as follows:

“(1) Section [10a(c)j does not apply because the Count in question was never submitted to the jury;
(2) even if the Section did apply, it does not authorize awarding attorney fees to ‘prevailing’ defendants;
(3) even if it does, the Court will exercise its discretion and deny the request for fees.”

We hold the court was in error in ruling that section 10a(c) of the Act does not provide for an award of fees when (1) the charge of violation has not been passed upon by a trier of fact, or (2) the “prevailing party” is a defendant. However, we agree with the circuit court’s determination that even if Arab was eligible to seek fees, the question of whether to award fees was a matter within the sound discretion of that court. We hold the record is sufficient to show the court gave sufficient consideration to Arab’s request and did not abuse its discretion in denying fees. Accordingly, we affirm.

Plaintiffs brought suit on July 9, 1986, naming as defendants, in addition to Arab, Walter J. and Rosemary Blumthal, Cline’s Real Estate, Inc. (Cline), and Margaret Thompson. The allegations of the complaint can be better understood after consideration of the situation giving rise to the litigation. The parties do not dispute that plaintiffs were the purchasers of a house owned by the Blumthals, and that Cline, and their agent Thompson, acted as the Blumthals’ real estate agents to sell that property. The parties also do not dispute that (1) prior to the sale, the Blumthals contracted with Arab to treat the house for termite infestation; (2) at the time of the purchase, the buyers and sellers were represented by the same attorney, and the parties agreed to forego a termite inspection; (3) several months after the purchase of the house, plaintiffs were informed of further termite infestation; (4) plaintiffs contacted Arab, and Arab treated the house again; (5) after the retreatment, there was still evidence of active termite infestation; (6) plaintiffs did not contact Arab for another re-treatment but sought retreatment from a different pest-control company; and (7) plaintiffs then filed the instant complaint.

Counts I, II, and III of the complaint charged Blumthals with breach of contract, fraud, and negligent misrepresentation, respectively. Counts IV and V, respectively, alleged both Cline and Thompson were liable for fraudulent misrepresentation and violation of the Act. Counts VI, VII, and VIII were brought against Arab on grounds of breach of contract, negligent misrepresentation, and breach of the Act in that order. On November 21, 1986, the circuit court granted the motion of Cline and Thompson to dismiss, without prejudice, the counts against them. On August 17, 1989, the court dismissed, without prejudice, counts I, II, and III, which were against Blumthals, pursuant to a settlement agreement by which Blumthals agreed to pay plaintiffs approximately $10,000.

Defendant Arab then filed a motion for summary judgment as to the three counts against it. The court granted defendant’s motion for summary judgment as to the count alleging negligent misrepresentation but denied the motion as to the counts alleging breach of contract and violation of the Act.

The case went to trial on counts VI and VIII on September 25, 1989. According to an undisputed affidavit filed in support of Arab’s petition for attorney fees and costs and matters otherwise of record (1) on the first day of trial, prior to voir dire, Arab’s attorney offered to not seek attorney fees if plaintiffs would dismiss with prejudice the count alleging a violation of the Act; (2) the offer was rejected, voir dire was had, opening statements were made, and both plaintiffs testified; (3) prior to the second day of trial, plaintiffs attempted to accept the offer regarding attorney fees; (4) Arab indicated the offer was no longer valid after trial began; (5) plaintiffs’ attorney, nevertheless, orally moved to dismiss count VIII with prejudice; and (6) the court granted that motion and also granted Arab leave to pursue its petition for fees and costs.

On October 3, 1989, the court entered judgment on a jury verdict in favor of Arab and against plaintiffs as to the only remaining count.

The heart of this case is the question of whether the circuit court breached its discretion in denying Arab’s request for attorney fees from plaintiffs. The plaintiffs do not argue vigorously that a defendant to a proceeding under the Act, such as Arab, cannot be a “prevailing party” within the meaning of section 10a(c) of the Act. (Ill. Rev. Stat. 1989, ch. 121V2, par. 270a(c).) Nor do they strongly assert that Arab did not prevail when count VIII of plaintiffs’ complaint was dismissed on plaintiffs’ motion but in bar of action and without the issues ever having been submitted to a trier of fact.

We are aware of no reported case holding a defendant obtaining a judgment in his or her favor in regard to a charge made under the Act qualifies to seek attorney fees from the party bringing the action, but such a defendant is clearly a “prevailing party” by any reasonable interpretation of that phrase. In such a case, a defendant should be eligible to receive attorney fees “after a not-guilty verdict on the merits or a dismissal of a case found to be groundless or clearly frivolous harassment.” (Friedman, Private Right of Action Under the Illinois Consumer Fraud and Deceptive Business Practices Act, 76 Ill. B.J. 748, 751 (1987) (hereinafter Friedman).) Friedman suggests, and we agree, that the award of fees to successful defendants is a tool provided by the Act to curb abuses. He noted, “[i]f the Act is seen by the practitioner to be a double-edged sword, it will not be pled without careful consideration.” Friedman, 76 Ill. B.J. at 751 (1987).

In an article written prior to publication of the Friedman article, Andrea Saltzman, a member of the Illinois and California bars, set forth a list of some 88 Illinois statutes which provide for the award of attorney fees. (Saltzman, A Brief Look at Statutory Attorneys’ Fees in Illinois, 73 Ill. B.J. 266 (1985).) Of these statutes, eight provide for an award of fees for a “prevailing party.” Subsequent research has revealed that six other statutes now so provide. More significantly, Federal legislation providing for proceedings to vindicate civil rights violations states in part:

“In any action or proceeding to enforce [certain important provisions concerning civil rights], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” (Emphasis added.) 42 U.S.C. §1988, at 379 (1988).

We are aware of no case, concerning the foregoing legislation, which holds that a defendant to such a proceeding is not considered to be a party who has prevailed and is, thus, subject to consideration for fees. Under Federal legislation regarding a claim of civil rights violation, a defendant who wins is deemed a “prevailing party.” (Patton v. County of Kings (9th Cir. 1988), 857 F.2d 1379; Roper v. Edwards (11th Cir. 1987), 815 F.2d 1474.) A defendant in the above type of case has prevailed when the complaint against the defendant has been dismissed, in bar of action, for want of prosecution. Anthony v. Marion County General Hospital (5th Cir. 1980), 617 F.2d 1164.

The foregoing precedent and any commonsense interpretation of the phrase “prevailing party” makes clear that a defendant to a proceeding under the Act, who obtains a judgment in its favor which is in bar of action, is a “prevailing party” regardless of whether the charge of a statutory violation has been passed upon by a trier of fact.

Notably, section 10a(c) of the Act states the court “may” award fees to a “prevailing party,” thus implying the award is within the discretion of the court. We have so held in regard to a request for fees by a party claiming a violation of the Act. (Grimes v. Adlesperger (1978), 67 Ill. App. 3d 582, 384 N.E.2d 537.) Accordingly, we must determine the criteria for the award of such fees and whether the circuit court abused its discretion in denying Arab fees here. No case arising under the Act setting forth such guidelines has been called to our attention. Accordingly, we must look elsewhere for guidance.

Section 502(g) of the Employee Retirement Income Security Act (ERISA), which is similar to section 10a(c) of the Act, provides that if brought under ERISA by participants, beneficiaries, or fiduciaries, a trial court “in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” (29 U.S.C. §1132(g)(l) (1988).) In passing upon a trial court’s refusal to make such an award in a suit brought under ERISA in an Illinois circuit court, the First District Appellate Court has stated:

“In construing this provision the Federal appellate courts have established several guidelines for determining whether to award attorney fees to a prevailing party. These guidelines are as follows:
‘(1) the degree of the opposing parties’ culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of fees; (3) whether an award of fees against the opposing parties would deter others from acting under similar circumstances; (4) whether the parties requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA; and (5) the relative merits of the parties’ position.’ (Hummel v. S.E. Rykoff & Co. (9th Cir. 1980), 634 F.2d 446, 453.)
(Accord Iron Workers Local No. 272 v. Bowen (5th Cir. 1980), 624 F.2d 1255, 1266.) Not one of these guidelines is necessarily decisive. (Carpenters Southern California Administrative Corp. v. Russell (9th Cir. 1984), 726 F.2d 1410, 1416.) A showing of bad faith is not required to justify an award of attorney fees. (Smith v. CMTA-IAM Pension Trust (9th Cir. 1984), 746 F.2d 587, 590; Baeten v. Van Ess (E.D. Wis. 1979), 474 F. Supp. 1324, 1332.) As a general rule, a prevailing party in an ERISA action should be awarded her fees unless special circumstances would render such an award unjust. Hollenbeck v. Falstaff Brewing Corp. (E.D. Mo. 1984), 605 F. Supp. 421, 437.” Zervos v. Solo Cup Co. (1987), 165 Ill. App. 3d 809, 812, 520 N.E.2d 823, 825.

The Zervos court was concerned with the award of attorney fees to a plaintiff and held the circuit court had erred in denying fees on the ground that bad faith upon the part of the defendant was necessary to support such an award. A different standard may be applicable to awards for defendants than for plaintiffs. In passing upon requests for attorney fees in suits to vindicate civil rights (42 U.S.C. §1988 (1988)), Federal courts have so indicated. (Bittner v. Sadoff & Rudoy Industries (7th Cir. 1984), 728 F.2d 820; Mid-Hudson Legal Services, Inc. v. G & U, Inc. (2d Cir. 1978), 578 F.2d 34.) In Bittner, the court indicated that while attorney fees should usually be awarded to successful plaintiffs, they should be awarded to defendants only when the suit brought against them is frivolous. Several Federal cases have used adjectives similar to the word “frivolous” to describe the types of suit which permits award of attorney fees to a prevailing defendant. Mid-Hudson, 578 F.2d 34; Lopez v. Aransas County Independent School District (5th Cir. 1981), 570 F.2d 541.

Using a different standard to determine whether a prevailing defendant should be awarded fees than that used if a plaintiff prevails seems logical. Most of the statutes providing for such fees have been enacted to give plaintiffs remedies which would not otherwise be available, or which a plaintiff might not otherwise be able to afford. If a consumer is defrauded of a small amount, that consumer may be reluctant to bring an action if the recovery would be nearly or completely consumed by attorney fees. The exposure of a plaintiff to being required to reimburse a prevailing defendant for attorney fees is a deterrent to bringing an action. The chilling effect of such exposure should be considered most seriously in cases brought to vindicate constitutional civil rights. Thus, the scrutiny placed upon the criteria for fee awards to the defense in those cases may logically be more stringent than that imposed in proceedings to vindicate consumers’ rights, the subject of the Friedman article.

Regardless of the difference between civil rights cases and consumers’ rights cases, logic dictates some substantial difference between the standards for plaintiffs and defendants in regard to fees in consumer protection cases. The Act indicates a public policy to encourage plaintiffs who have a cause of action to sue even if recovery would be small. As stated in Zervos, attorney fees may, at times, be awarded plaintiffs without bad faith on the part of defendants. We have difficulty in envisioning a circumstance arising under the Act where fees should be awarded a defendant absent bad faith on the part of a plaintiff. As Friedman has indicated, the purpose of awarding fees to a defendant is to deter bad-faith conduct by a plaintiff and to reimburse a defendant when that occurs.

In recent years, prior to August 1, 1989, section 2 — 611 of the Code of Civil Procedure (Code) has provided for the signing of pleadings and that the signing constitutes a certificate by the pleader that the document “is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as *** delay.” (Ill. Rev. Stat. 1987, ch. 110, par. 2— 611.) That section further provides that the court is directed to impose sanctions against a party whose pleading is signed in violation of the statute. The sanctions include an award of attorney fees to adverse parties. Since August 1, 1989, section 2 — 611 has been superseded by Supreme Court Rule 137 (134 Ill. 2d R. 137), which has similar provisions, but makes the imposition of sanctions a matter upon which the court may exercise its discretion.

As we will explain, Arab’s contention that it is entitled to fees is not based upon any misstatement of facts in count VIII of the complaint. Rather, it is based upon a theory that the known and alleged facts did not constitute a cause of action under the Act in favor of plaintiff and against Arab, and plaintiffs’ counsel knew that but attempted to harass Arab into settlement.

The detailed provisions of Supreme Court Rule 137 and its predecessor, section 2 — 611 of the Code, are more definite, in regard to sanctions, than the more general, shorter statement of section 10a(c) of the Act. At least in regard to Arab’s contention here as to plaintiffs’ counsel’s knowledge and intent, we deem the criteria of Supreme Court Rule 137 to be appropriate to a determination of whether a sanction should have been imposed.

The special standard involved is whether the “knowledge, information, and belief” of plaintiffs’ pleader in allegations of the complaint are not “warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law,” and whether they are “interposed *** to harass or to cause unnecessary delay.” (134 Ill. 2d R. 137.) As we have stated, in making its determination, the circuit court was vested with discretion.

The thrust of the allegations of count VIII was that plaintiffs were assignees of Arab’s contract with the Blumthals, and Arab either misrepresented the nature of termite damage to the house in question or failed to represent the true nature of the house. In Grass v. Homann (1984), 130 Ill. App. 3d 874, 474 N.E.2d 711, this court held that when a termite inspector made a report for purchasers of a residence which was knowingly incorrect and that report was then given to the purchasers the termite inspector was not subject to the Act because (1) the Act was not intended to cover “isolated breach of contract”; (2) the inspector did not have a sufficient nexus to the transaction involved; and (3) the plaintiff had a contractual cause of action against the inspector. The analogy between that case and this case is almost complete, and Arab’s counsel had called attention to Grass on several occasions.

Subsequent to Grass, the Fifth District Appellate Court decided Warren v. LeMay (1986), 142 Ill. App. 3d 550, 491 N.E.2d 464. There, a termite inspector hired by sellers of a house had also made a fraudulent inspection report. Suit was brought by the purchasers partially against the termite inspector for violation of the Act. The court contended this ease differed from Grass in two respects. One was that the inspector there was more involved in the heart of the contract than in Grass. The other was that the inspector there had no contractual relationship with the purchasers as the seller had been required by regulation of the Veterans Administration, the entity financing the purchase, to hire and pay the termite inspector. Thus, the purchaser had no contractual right against the inspector. After distinguishing the cases, the Warren court then expressed strong disagreement with Grass, contending the weight of authority held a single transaction was enough to impose liability under the Act.

While the circuit court was in error in two of the reasons it gave for denial of fees, the record presented is sufficient to show the court gave adequate consideration to its exercise of discretion even if it was incorrect on the other points.

The record does indicate some threats were made by plaintiffs to Arab concerning obtaining punitive damages and attorney fees as to the count under the Act despite its knowledge of the precedent of Grass. After holding out for a waiver of any claim for attorney fees by Arab, plaintiffs then dismissed that charge after trial started. However, the strength of the precedent of Grass was countered to some extent by the opinion in Warren. Accordingly, the circuit court could determine plaintiffs could make a good-faith argument for the overruling of Grass. The threats and bickering back and forth, with plaintiffs finally giving in as to the count under the Act, did not necessarily prove that count was filed merely to harass. On this record we do not find the circuit court breached its discretion in denying Arab’s request for fees.

We affirm for the reasons stated.

Affirmed.

KNECHT, P.J., and STEIGMANN, J., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    KERR-McGEE CHEMICAL CORPORATION, Plaintiff-Appellee, v. THE DEPARTMENT OF NUCLEAR SAFETY, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0330
    Opinion filed October 18, 1990.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Rosalyn B. Kaplan, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Patrick J. Cadigan, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Springfield, and Peter J. Nickles, Richard A. Meserve, and Bette Orr, all of Covington & Burling, of Washington, D.C., for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

This case is an outgrowth of a controversy over the disposal of nuclear waste on property owned by plaintiff Kerr-McGee Chemical Corporation (Kerr-McGee) in West Chicago. The principal question presented is whether Kerr-McGee may challenge, by means of a declaratory judgment action, rules promulgated by defendant Illinois Department of Nuclear Safety (Department) pertaining to nuclear waste, which are not currently in effect because the State has not yet received permission from the Nuclear Regulatory Commission (NRC) to regulate the type of nuclear waste covered by the rules. We hold the question of whether the rules are valid is not yet ripe for decision and reverse the order of the circuit court which denied the Department’s motion to dismiss Kerr-McGee’s complaint for declaratory judgment.

Although nuclear energy and related matters are generally subject to regulation by the NRC, under certain circumstances the States may assume regulatory authority in this area. (42 U.S.C. §2021 (1988).) In order to assume such regulatory authority, the States must, among other things, promulgate rules that meet NRC requirements. 42 U.S.C. §§2021(d), (o) (1988); 46 Fed. Reg. 7540, 7544 (1981) (criteria 30, 32).

Accepting as true the well-pleaded facts of Kerr-McGee’s complaint for declaratory judgment (Martin v. Federal Life Insurance Co. (1982), 109 Ill. App. 3d 596, 601, 440 N.E.2d 998, 1003), Kerr-McGee asserted that it is the owner of a former thorium milling facility in West Chicago and that nuclear waste, consisting of thorium mill tailings and associated materials, is present on this site. Since 1979, Kerr-McGee has sought a license amendment from the NRC to permit stabilization and closure of its West Chicago facility. After two full evaluations of the site, the NRC staff recommended “on-site stabilization” of the nuclear waste at Kerr-McGee’s West Chicago facility.

The proposal to indefinitely store nuclear waste at Kerr-McGee’s West Chicago facility displeased the Department, which preferred the nuclear waste to be stored elsewhere. Consequently, the Department, in proceedings before the NRC, opposed the on-site stabilization plan recommended by the NRC staff.

On April 28, 1989, the Department published proposed rules which set forth “Licensing Requirements for Source Material Milling Facilities” (13 Ill. Reg. 5874 (1989)), as part of the procedures requisite to obtain permission from the NRC to exercise regulatory authority over nuclear waste, such as those present at Kerr-McGee’s West Chicago facility. According to Kerr-McGee, its West Chicago facility is the only site in Illinois to which these rules could possibly apply. After making only minor modifications in the rules in response to Kerr-McGee’s comments, the Department adopted them in final form on January 19,1990.14 Ill. Reg. 1333 — 78 (adopted Jan. 19, 1990).

Kerr-McGee alleged that the Department’s effort to obtain jurisdiction over its West Chicago facility was designed to thwart the nearly completed proceedings before the NRC for on-site disposal of nuclear waste at the facility. Also, Kerr-McGee argued that the Department’s rules pertaining to its West Chicago facility were tailored to further the Department’s ability to obtain in State court an injunction against Kerr-McGee’s on-site disposal plan.

Kerr-McGee alleged that the Department’s rules relating to source-material milling facilities are invalid because (1) they violate the Illinois Constitution’s proscription of special legislation (Ill. Const. 1970, art. IV, §13); (2) they are contrary to various provisions of the Atomic Energy Act of 1954 (42 U.S.C. §§2021(o), 2114(c) (1988)); (3) they are inconsistent with and different from parallel Federal regulations governing nuclear by-product materials (10 C.F.R. pt. 40, app. A (1989)); (4) they amount to “targeted” rulemaking, which is an impermissible mix of regulatory and litigation functions within the Department and exceeds the Department’s statutory authority; and (5) they are arbitrary, unreasonable, and capricious, and impose unreasonable regulatory burdens in that they (a) do not recognize existing NRC licenses for nuclear facilities and permit the Department to revoke such licenses, (b) do not provide for transfer to the Department and action by the Department on nuclear facility license and license amendment applications pending before the NRC, and (c) do not make appropriate distinctions between existing tailings sites and new tailings sites.

On the basis of the above allegations, Kerr-McGee asserted that an actual controversy exists between it and the Department. Kerr-McGee requested that a declaratory judgment be entered against the Department, holding its rules prescribing licensing requirements for source-material milling facilities to be arbitrary, capricious, contrary to law, and, accordingly, null and void. Kerr-McGee also requested such other relief “as is appropriate under the circumstances.”

The Department filed a motion to dismiss Kerr-McGee’s complaint for declaratory judgment on the bases that the action was premature and no actual controversy existed between it and Kerr-McGee. The Department pointed out that no agreement had yet been executed between Illinois and the NRC allowing the State to regulate nuclear waste of the type present at Kerr-McGee’s West Chicago facility and, thus, the State is incapable of exercising regulatory authority over the site. The circuit court denied this motion, but allowed the Department’s motion to certify for appeal the question presented by the Department’s motion to dismiss. (See 107 Ill. 2d R. 308 (allowing interlocutory appeals by permission).) The court stated the question as follows: This court allowed the Department’s motion for leave to appeal, pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308).

“ ‘Whether, under the circumstances of this case, an actual controversy" exists between plaintiff and defendant which entitles plaintiff to bring an action for declaratory judgment under Section 2 — 701 of the Code of Civil Procedure.’ ”

The positions of the parties to this appeal are quite simple. The Department contends there is no actual controversy between the parties because the rules which Kerr-McGee challenges are not presently effective and will not become effective unless, and until, the NRC permits the State to exercise regulatory authority over nuclear waste of the type present at Kerr-McGee’s West Chicago facility. The Department points out that because there is no certainty that this will ever occur, there is no certainty that the rules Kerr-McGee challenges will ever become applicable to Kerr-McGee. The Department argues that the courts should not be burdened with declaratory judgment actions such as this, which may well prove to be entirely advisory or hypothetical in nature.

Kerr-McGee states that its complaint alleges facts which establish an actual controversy exists between it and the Department and, therefore, properly states an action for a declaratory judgment. Kerr-McGee asserts that the posture of this case, in terms of the record and issues presented for review, is exactly the same as that in a case requesting judicial review of agency rulemaking. Kerr-McGee contends that the question of whether the rules at issue here are invalid under State law is of direct and immediate relevance to the NRC’s decision as to whether the State should be allowed to assume regulatory authority over Kerr-McGee’s West Chicago facility. Kerr-McGee suggests that holding these rules invalid on State law grounds after the NRC has transferred regulatory authority to the State could create a regulatory vacuum with respect to its West Chicago facility. Kerr-McGee maintains that neither a threat of immediate enforcement of a statute, a threat of personal injury, nor a threat of imminent harm is necessary before a declaratory judgment action to determine the validity of statutes or regulations may be maintained, and the fact that the occurrence of some future event is a prerequisite to enforcement of administrative rules is of no consequence in determining whether they may be challenged in a declaratory judgment action.

Finally, Kerr-McGee maintains that if it waits until the NRC grants the Department permission to assume regulatory control over nuclear waste sites, such as its West Chicago facility, to contest the Department’s rules governing source-material milling facilities, it might never be able to challenge the rules. This argument is grounded on a two-year limitation period on actions to challenge administrative rules for noncompliance with section 5 of the Illinois Administrative Procedure Act (Act) (Ill. Rev. Stat. 1989, ch. 127, par. 1005(b)), and there is no assurance that the NRC will rule on the State’s request to assume regulatory authority within two years of the effective date of the rules at issue in the present case. The Department responds to this argument by stating that Kerr-McGee does not assert any challenge to its rules which is subject to the two-year limitation period contained in section 5 of the Act.

Section 2 — 701 of the Civil Practice Law provides:

“The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, at the instance of anyone interested in the controversy, of the construction of any statute, municipal ordinance, or other governmental regulation *** and a declaration of the rights of the parties interested. *** The court shall refuse to enter a declaratory judgment or order, if it appears that the judgment or order, would not terminate the controversy or some part thereof, giving rise to the proceeding.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 701(a).)

In order to maintain a declaratory judgment action, one need not have suffered an actual injury by virtue of a statutory enactment, and prosecution need not be imminent. However, the underlying facts and issues may not be premature or moot, and the courts should refrain from rendering advisory opinions or providing guidance regarding future events. (Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 450, 389 N.E.2d 529, 531.) It is presumed that a validly enacted statute will be enforced (Hoagland v. Bibb (1957), 12 Ill. App. 2d 298, 303, 139 N.E.2d 417, 420), and a declaratory judgment action may be maintained where a statute casts doubt, uncertainty, and insecurity upon a plaintiff’s rights or status and thereby damages his pecuniary or material interests. (Oak Park Trust & Savings Bank v. Town of Palatine (1981), 100 Ill. App. 3d 674, 679, 427 N.E.2d 298, 301.) In other words, a declaratory judgment action may be maintained where statutes or administrative rules, which have cleared all hurdles prerequisite to their becoming fully effective, require one either to take a certain action or to refrain from a certain action, regardless of the actual probability of prosecution for noncompliance.

Measured by the above principles, Kerr-McGee’s complaint does not state a cause of action for a declaratory judgment. At present, the rules Kerr-McGee seeks to invalidate impose no duties on Kerr-McGee. They require Kerr-McGee neither to take any action nor to refrain from taking any action in which it is presently engaged or plans to be engaged. These rules will impose duties on Kerr-McGee only if and when the NRC allows the State to assume regulatory control over nuclear waste such as that at Kerr-McGee’s West Chicago facility.

It is possible that the rules at issue here will never become applicable to Kerr-McGee. The NRC may find, for instance, that the rules themselves are not in harmony with parallel Federal regulations, or the NRC may find other shortcomings in the Department’s proposed regulatory scheme which result in the NRC’s denying the State’s request to assume regulatory control over source-material milling facilities. Disapproval by the NRC of the Department’s rules governing such facilities could require the Department to withdraw the rules and substantially rewrite them. This could conceivably occur more than once. Under this scenario, Illinois courts could determine the validity of several sets of rules which, due to action by a Federal regulatory agency, would never become effective. In these days of congested court dockets, we cannot countenance the possibility of a proceeding, or a series of proceedings, which would culminate in purely advisory decisions.

Moreover, the most complex issues raised by Kerr-McGee’s complaint for declaratory judgment are those which involve questions of whether there is a conflict between the Department’s regulations which Kerr-McGee challenges and Federal statutes and regulations pertaining to the same subject. Compared to these questions, the State law issues raised in Kerr-McGee’s complaint — whether the Department’s regulations violate the Illinois Constitution’s proscription of special legislation and whether they amount to impermissible “targeted” rule-making — would be easy to resolve. Under the doctrine of primary jurisdiction, courts should defer decisions on matters which are within the specialized technical expertise of an administrative agency until the appropriate administrative agency has had an opportunity to consider them. (Kellerman v. MCI Telecommunications Corp. (1986), 112 Ill. 2d 428, 444-45, 493 N.E.2d 1045, 1052, cert. denied (1986), 479 U.S. 949, 93 L. Ed. 2d 384, 107 S. Ct. 434.) There are few cases in which application of this doctrine would be more appropriate than the present case. The NRC is unquestionably better qualified than the Illinois courts to consider, in the first instance, the complex questions concerning the meaning of Federal statutes and regulations pertaining to nuclear safety which are presented by Kerr-McGee’s complaint for declaratory judgment.

Contrary to Kerr-McGee’s contentions, invalidation of rules promulgated by the Department governing source-material milling facilities after the NRC has given the State authority to regulate such facilities would not result in a regulatory vacuum. If the Department’s rules would be invalidated on State law grounds after becoming effective, and the State law deficiencies in them could be cured, the Department could propose new rules which conform to State law. It would be highly unlikely that the changes designed to bring the rules in conformity with State law would create questions as to whether they conformed to Federal statutes and regulations pertaining to nuclear safety and, thus, the validity of the second set of rules could be considered by the Illinois courts on an expedited basis. In the meantime, the Department could exercise its emergency (Ill. Rev. Stat. 1989, ch. 127, par. 1005.02) or peremptory (Ill. Rev. Stat. 1989, ch. 127, par. 1005.03) rulemaking powers to enact temporary rules to regulate source-material milling facilities. If for any reason it would prove impossible for the Department to fill a regulatory gap stemming from invalidation of its rules on State law grounds after the NRC had given the State authority to regulate source-material milling facilities, the NRC would have authority to do so. Section 2021(j) of the Atomic Energy Act of 1954 provides:

“(j) Reserve power to terminate or suspend agreements; emergency situations; State nonaction on causes of danger; authority exercisable only during emergency and commensurate with dangerf.]
(1) The Commission, upon its own initiative after reasonable notice and opportunity for hearing to the State with which an agreement under subsection (b) of this section has become effective, or upon request of the Governor of such State, may terminate or suspend all or part of its agreement with the State and reassert the licensing and regulatory authority vested in it under this chapter, if the Commission finds that (1) such termination or suspension is required to protect the public health and safety, or (2) the State has not complied with one or more of the requirements of this section. The Commission shall periodically review such agreements and actions taken by the States under the agreements to ensure compliance with the provisions of this section.
(2) The Commission, upon its own motion or upon request of the Governor of any State, may, after notifying the Governor, temporarily suspend all or part of its agreement with the State without notice or hearing if, in the judgment of the Commission:
(A) an emergency situation exists with respect to any material covered by such an agreement creating danger which requires immediate action to protect the health or safety of persons either within or outside the State, and (B) the State has failed to take steps necessary to contain or eliminate the cause of the danger within a reasonable time after the situation arose.
A temporary suspension under this paragraph shall remain in effect only for such time as the emergency situation exists and shall authorize the Commission to exercise its authority only to the extent necessary to contain or eliminate the danger.” (42 U.S.C. §2021®, at 449 (1988).)

Given the Department’s emergency and peremptory rulemaking powers, as well as the NRC’s authority to terminate or suspend State authority to regulate nuclear materials, there is no possibility that source-material milling facilities would be left unregulated as a result of the Department’s rules being invalidated on State law grounds after the State has obtained authority to exercise regulatory jurisdiction over such facilities.

The cases on which Kerr-McGee mainly relies (Lake Carriers’ Association v. MacMullan (1972), 406 U.S. 498, 32 L. Ed. 2d 257, 92 S. Ct. 1749; Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 362 N.E.2d 298; City of Chicago v. Department of Human Rights (1986), 141 Ill. App. 3d 165, 490 N.E.2d 53; Stone v. Omnicom Cable Television of Illinois, Inc. (1985), 131 Ill. App. 3d 210, 475 N.E.2d 223) do not support its argument that it is presently entitled to challenge the Department’s rules by means of a declaratory judgment action. All these cases involved statutes or procedures which, unlike the rules here at issue, were in full force and effect at the time the declaratory judgment action was filed. The same is true of actions requesting judicial review of agency rulemakings. See A.E. Staley Manufacturing Co. v. Illinois Commerce Comm’n (1988), 166 Ill. App. 3d 202, 206, 519 N.E.2d 1130, 1133.

We also find no merit in Kerr-McGee’s argument based on section 5 of the Act. (Ill. Rev. Stat. 1989, ch. 127, pars. 1005 through 1005.04.) As noted by Kerr-McGee, a challenge to an administrative rule based on noncompliance with this section must be commenced within two years of the rule’s effective date. (Ill. Rev. Stat. 1989, ch. 127, par. 1005(b).) Subsections 5.02, 5.03, and 5.04 (HI. Rev. Stat. 1989, ch. 127, pars. 1005.02, 1005.03, 1005.04) concern emergency rulemaking, peremptory rulemaking, and automatic repeal of rules. Clearly, none of these subsections are applicable to the case at bar. Subsection 5.01 (Ill. Rev. Stat. 1989, ch. 127, par. 1005.01) deals with public notice and comment requirements for proposed rules, notice to and action by the joint committee on administrative rules as to proposed rules, and the publication of adopted rules. In its complaint for declaratory judgment, Kerr-McGee does not allege the Department failed to comply with any of the procedural requirements prescribed by section 5 of the Act in promulgating the rules at issue in the present case. Therefore, under the facts of this case, there is no possibility that Kerr-McGee will be barred from asserting any of its objections to the disputed rules by virtue of the section 5(b) limitations period.

The circuit court order which denied the Department’s motion to dismiss is reversed, and this cause is remanded to the circuit court with directions to dismiss Kerr-McGee’s complaint for declaratory judgment.

Reversed and remanded with directions.

SPITZ and McCULLOUGH, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DALE L. DAUGHERTY, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0005
    Opinion filed October 18, 1990.

      Daniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Defendant Dale L. Daugherty appeals from his conviction and sentence for violating section 401 of the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401(b)(2)) by committing the offense of unlawful delivery of a controlled substance, in that on August 5, 1988, he knowingly and unlawfully delivered to Lorana Boll more than 1 gram, but not more than 15 grams, of a controlled substance containing cocaine, otherwise than as authorized in the Act. He contends his counsel’s complete failure to represent him at his sentencing hearing deprived him of his right to effective assistance of counsel. Defendant also contends, and the State agrees, that he was not properly credited for six days he spent in jail prior to sentencing. We affirm as to the issue of ineffective assistance of counsel and remand so that credit can be given for the six days.

A three-count bill of indictment was returned by an Adams County grand jury on March 7, 1989. Count I charged defendant with unlawful delivery of a controlled substance, based upon delivery of less than one gram of cocaine to Lorana Boll on July 27, 1988. The offense charged in count I is a Class 2 felony (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401(c)), which provides for a sentence of not less than three years and not more than seven years (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(5)), and also provides for a fine up to $200,000 (Ill. Rev. Stat. 1987, ch. bQVz, pars. 1401(c)).

Count II charged the offense which is the basis for the present appeal and which is a Class 1 felony. (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401(b)(2).) A Class 1 felony provides for a sentence of not less than 4 years and not more than 15 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(4).) The offense also allows a fine of up to $250,000. Ill. Rev. Stat. 1987, ch. 56V2, par. 1401(b).

Count III referred to the July 27, 1988, and August 5, 1988, dates, and charged the offense of narcotics racketeering. (Ill. Rev. Stat. 1987, ch. 56V2, par. 1654(a).) This offense is also a Class 1 felony and allows for a fine of up to $250,000. Ill. Rev. Stat. 1987, ch. 56V2, pars. 1655(a)(1), (a)(2).

An entry of appearance by an attorney on behalf of the defendant was filed on April 28, 1989. The defendant appeared and pleaded not guilty on May 9, 1989. On September 29, 1989, defendant appeared with his counsel, waived jury trial, and entered a plea of guilty based upon a plea agreement being accepted by the court. This agreement provided for a plea of guilty to count II and provided for a sentence of four years in the Illinois Department of Corrections. It further provided that count I and count III of the indictment be dismissed, and that a bail bond violation be dismissed. At the time of this plea, the trial court carefully and completely admonished the defendant prior to taking the plea. The trial court specifically explained that, if the court accepted the plea, the defendant would receive a four-year sentence, no more and no less. The defendant then entered a plea of guilty to count II, after specifically acknowledging he was in fact guilty. The trial judge conditionally accepted the plea, reserving final acceptance upon a presentence report and sentencing hearing. The cause was continued for the sentencing hearing.

On November 13, 1989, defendant filed a motion to withdraw his plea of guilty and vacate judgment. This motion was heard on December 11, 1989, and denied. The cause proceeded to sentencing hearing on the same date, and defendant was given the four-year sentence and ordered to pay court costs and a mandatory drug fine of $300. A presentence report was presented at this hearing, without objection on the part of the defendant. Neither the State nor the defense presented evidence at the sentencing hearing. The failure by defense counsel -to present evidence at the sentencing hearing is the basis for defendant’s allegation of deprivation of counsel.

Defense counsel’s argument at sentencing was as follows:

“[Defense counsel]: Your Honor, we have a lot of evidence we can put on in mitigation. But in light of what the Court has done here today, I don’t know that it makes any difference. The man is going to get four years irregardless of what I say or what he does.,So we would want to offer no evidence at this time in mitigation, because it would just be a waste of the court’s time.
THE COURT: It’s your choice, uh, and if you desire to offer no evidence, I will respect that.
Very well, then. Argument, [prosecutor]?
[Prosecutor]: Your Honor, we would ask that the court concur in the negotiations and sentence the Defendant to the Department of Corrections for four years.
THE COURT: In just looking at the transcript from the last time we did this, uh, has there been a, was there an agreement on the street value fine?
[Prosecutor]: Yes, your Honor. I believe it was $300.
THE COURT: $300.
[Prosecutor]: And I would concur — The court had made an inquiry of me before and I do not think it would be appropriate to find [sic] him in an amount additional to the mandatory fine.
THE COURT: Very well.
[Defense counsel]?
[Defense counsel]: Your Honor, we would ask the court at this point in light of the fact that the court has refused or denied my motion to vacate the guilty plea, to not accept this negotiation, to not concur, not to give final concurrence and set this matter down for a jury trial.
We don’t believe that the Department of Corrections sentence in this case is appropriate, and we don’t believe that this gentleman should be placed with the Department of Corrections. We believe that he should be allowed to stand trial. And we would ask the court to not finally concur in the sentence in this case.”

We emphasize that this appeal is not from the ruling denying the motion to withdraw the plea.

Sentencing is a critical stage of a criminal proceeding, at which time the defendant is entitled to the effective assistance of counsel. (People v. Reyes (1981), 102.Ill. App. 3d 820, 837, 429 N.E.2d 1277, 1291.) When evaluating claims of ineffectiveness of counsel, courts “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Strickland v. Washington (1984), 466 U.S. 668, 689, 80 L. Ed. 2d 674, 694, 104 S. Ct. 2052, 2065.) The Court in Strickland announced a two-part test for judging ineffectiveness claims. Under that test, a defendant must first show that his counsel’s performance “fell below an objective standard of reasonableness.” (Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) Defendant also must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

We need go no further in citing words of various courts regarding what constitutes a deprivation of sixth amendment right to counsel. We have examined the various authorities cited by defendant and find they are inapplicable here. The present case involved a plea bargain agreement. The agreement was made between the State and the defendant. The State gave up the right to proceed with certain charges and the right to seek a sentence greater than the minimum. The defendant gave up his right to a jury trial and the right to seek less than the four-year sentence. He received a guarantee barring a more severe sentence and a greater fine. When the court accepted the plea agreement, no variance was possible. What more could counsel have done? The motion to withdraw had been denied.

What we are saying today is that once a plea agreement with an agreed sentence has been accepted, the only further action (or inaction) by counsel which would be considered ineffective would be to allow the trial court to enter a sentence greater than that agreed upon.

An examination of the record indicates defense counsel participated in a multitude of preplea proceedings, as well as the motion to withdraw plea. We have included in this opinion defense counsel’s statement at the sentencing hearing. To hold that his service was inadequate at the time of sentencing would be a great injustice to him.

As to the six days’ credit, we note the trial court failed to give credit for-the six days defendant spent in jail awaiting sentence. The credit was mandatory. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—7(b).) This case must be remanded for the limited purpose of correcting the mittimus to provide for this credit.

Affirmed and remanded with directions.

KNECHT, P.J., and STEIGMANN, J., concur.