author: JUSTICE BOWMAN

text:
    THE CITY OF AURORA, Plaintiff and Counterdefendant-Appellant, v. JUVENTINO NAVAR, Defendant and Counterplaintiff-Appellee.
    Second District
    No. 2 — 90—0657
    Opinion filed March 8, 1991.

      Ronald R. Moses, Corporation Counsel, of Aurora (Valerie D. Brown, of counsel), for appellant.
    Murphy, Hupp, Foote, Mielke & Kinnally, of Aurora (Patrick M. Kinnally, of counsel), for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court;

Plaintiff and counterdefendant, the City of Aurora (Aurora or City), appeals from orders of the circuit court of Kane County which permanently enjoined the City from enforcing its noise nuisance ordinance and awarded attorney fees to defendant and counterplaintiff, Juventino Navar (Navar).

Navar is the owner of Navar’s Auto Service, an auto repair garage, in the City of Aurora. Navar’s business is a permitted use under Aurora’s zoning ordinance. On September 25, 1989, Navar was contacted by Mark Anderson, the director of the division of inspections and permits for the City, and told to close the garage because it was after 9 p.m. and a City ordinance required that his business be closed after 9 p.m.

Either later in September or early in October 1989 Anderson came to Navar’s garage accompanied by two police officers. Jesus Navar, Juventino’s uncle, was there, watching over the business while his nephew was out on the tow truck. Anderson told Jesus that the garage would have to be closed for the evening since it was in violation of the 9 p.m. closing time mandated by the City ordinance.

On November 7, 1989, the Aurora City Council amended section 21 — 20 of its nuisance ordinance (Aurora, Ill., Code of Ordinances ch. 21, §21 — 20 (1969)) by adding a noise nuisance. (Aurora, Ill., Ordinance 89 — 108 (November 7, 1989).) Navar received a copy of the amended ordinance from Anderson around the fourth or fifth of December 1989.

Aurora filed a complaint against Navar on December 11, 1989, alleging that on November 29, 1989, he had operated his auto repair shop in such a manner as to constitute a noise nuisance in violation of section 21 — 20 of the City’s nuisance ordinance. Navar did not answer but filed affirmative defenses and a counterclaim. In his counterclaim Navar sought a declaratory judgment that ordinance 89 — 108, the noise ordinance, was unconstitutional, both on its face and as applied to him, under the due process clauses of both the Illinois and United States Constitutions. (Ill. Const. 1970, art. I, §2; U.S. Const., amend. XIV.) Navar attacked the ordinance on grounds that it was so vague and/or overly broad as to deny him due process of law. He also requested that the City be enjoined from prosecuting him under the challenged ordinance and that he be awarded attorney fees and costs.

At the hearing on Navar’s subsequent motion for a permanent injunction both parties presented evidence. With regard to the incidents which occurred before the City amended its nuisance ordinance, Navar testified that on September 25, 1989, Anderson first telephoned him at home while he was preparing to eat supper. Upon Anderson’s insistence that the garage had to be closed immediately because it was after 9 p.m., Navar returned to his shop. Later that evening Anderson made repeated calls to Navar at the shop to verify that Navar was closing. According to Navar, Anderson ultimately threatened him with arrest if he did not comply. When Navar asked about the closing time law, Anderson told him it was a new ordinance and indicated that he would send Navar a copy of it. Jesus Navar testified that during the incident when he was at the garage, Anderson also told him he had to close the business or be arrested.

Anderson, testifying for Aurora, indicated that he had been a City zoning enforcement officer for almost two years prior to becoming director of the City’s division of inspections and permits in 1986. Anderson’s testimony deviated slightly from Navar’s in regard to the dates of the incidents which Navar had described. However, Anderson admitted making repeated calls to Navar at his place of business on one occasion and to being accompanied by two police officers when he confronted Jesus Navar. He denied ever threatening that anyone would be arrested but acknowledged that he had indicated that “the police could be contacted and have him closed down.” Anderson testified that, on the occasions he contacted Navar, he had received complaints that Navar’s garage was open in the evening. In response to questioning by the court, Anderson admitted that the complaints that had prompted both him and the police to go to Navar's garage had all come from a single complainant.

It was undisputed that the particular ordinance Anderson sought to enforce in September and October had not yet been adopted by the City council. Anderson testified that he thought the ordinance was in effect on the occasions he contacted Navar prior to November 7, 1989.

Navar also testified regarding incidents which occurred after the nuisance ordinance was amended. On November 29 a police officer came to the garage and told Navar he had received complaints of noise. The officer indicated that he himself had been standing outside but had not heard any noise. Around December 9 or 10, at about 9:30 p.m., Navar again was contacted by police. According to Navar, he was changing the oil in his own van inside his garage, which had been closed for the night, when four squad cars pulled into the garage parking lot. Two of the officers called him outside and told him they had received complaints of noise coming from his garage. Navar explained that he was merely changing the oil in his vehicle and not making noise. The officers gave him a warning regarding noise and left. It was not contested that Navar was never sent a notice to abate after the ordinance went into effect.

At the conclusion of the hearing the trial court granted Navar’s motion and permanently enjoined Aurora from enforcing its noise ordinance against Navar. The judge’s oral remarks indicate that he granted injunctive relief on the basis that Aurora had selectively enforced its noise ordinance against Navar. While the court indicated its belief that the constitutional issues were well raised, it did not render a judgment as to the constitutionality of the challenged ordinance.

Navar subsequently filed a petition for attorney fees and costs which was initially denied. Navar then filed a post-trial motion asking the court to reconsider its decision and resolve the important constitutional issue which had been raised. The court granted the motion and ultimately found, among other things, that the City’s noise ordinance was unconstitutional in that it improperly deprived Navar of a protected property interest in his business, denied him equal protection of the law, and was vague and overly broad. The ordinance was declared unconstitutional on both State and Federal constitutional grounds. The City was enjoined from any enforcement of the ordinance and Navar was awarded attorney fees and costs. Aurora then filed this appeal.

Initially, Aurora asserts that the trial court erroneously ignored the presumption of validity enjoyed by the City’s ordinance. (See City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill. 2d 40, 66; Village of Glenview v. Velasquez (1984), 123 Ill. App. 3d 806, 809.) We note, however, that the City does not cite to any portions of the record to support its assertion that the trial court ignored these principles. Rather, it cites to the locations in the record where it raised this issue in the lower court. Evidently, since the trial judge did not specifically mention it in his oral or written rulings, the City assumes that he ignored the rule regarding presumptive validity altogether. The record does not support such an assumption.

In its written order holding the order unconstitutional, the trial court stated: “The court has carefully reviewed the memoranda and pleadings as well as its own notes relating to the hearing held. The court has also considered the arguments presented.” The City had first pointed out the presumption of validity due its ordinance in its response to Navar’s motion for a temporary restraining order. It again raised the issue in the memorandum of law it submitted to the court in opposition to Navar’s motion for a permanent injunction. The trial court explicitly stated that it had reviewed the memoranda and pleadings. On these facts we are confident the lower court took into consideration the presumption set forth by the City.

The City next challenges the trial court’s findings that the noise ordinance is unconstitutionally vague and overly broad. As a preliminary matter we note that in his counterclaim Navar alleged and sought relief specifically in relation to Aurora’s ordinance 89 — 108. The trial court’s declaration of unconstitutionality was precisely limited to ordinance 89 — 108. In this court the parties’ arguments focus on ordinance 89 — 108. The ordinance in question amended a section of the City’s nuisance ordinance by adding, in pertinent part, the following language: “Any commercial activity audible from adjacent premises, or conducted out-of-doors, after 9 p.m. is declared a nuisance.” The complaint charging Navar indicates that the offense was an “unlawful Nuisance Noise” and was brought pursuant to section 21 — 20 of the City’s Code of Ordinances (Aurora, Ill., Code of Ordinances ch. 21, §21 — 20 (1969)). Section 21 — 20 is the section that was amended by ordinance 89 — 108. According to the complaint, Navar “unlawfully allowed a repair garage to operate *** in such a manner as to be a noise nuisance after the hour of 9 p.m.” It is apparent from the record that the only portion of Aurora’s Code of Ordinances that is in real controversy is the language regarding noise from commercial activity, which was added by ordinance 89 — 108 and which the parties refer to as the “noise ordinance.” Nevertheless, Navar also attacks, and the trial court addressed, the language of section 21 — 20 which declares as a nuisance, conditions “offensive to the neighborhood.” This language, however, was part of section 21 — 20 prior to amendment and was not altered by ordinance 89 — 108. Accordingly, we will limit our inquiry to the “noise ordinance” as added by ordinance 89 — 108.

As we have already mentioned, there is no question, and Navar does not dispute, that a municipal ordinance is entitled to a presumption of validity (City of Evanston v. Ridgeview House (1976), 64 Ill. 2d 40, 66) and the party challenging an ordinance has the burden of showing its invalidity. (Village of Glenview v. Velasquez (1984), 123 Ill. App. 3d 806, 809.) Navar attacks the validity of the ordinance on the ground that its provisions do not establish any objective standards for determining what is denoted by the word “audible.” He points out that, under this word, any noise resulting from commercial activity after 9 p.m. could become a nuisance, as long as the noise could be heard by a next-door neighbor. He further asserts that the ordinance lacks any standards or guidelines as to what constitutes a violation and thereby encourages enforcement officers to make arbitrary decisions as to when a violation has occurred. In short, Navar suggests that under its noise ordinance Aurora could, for whatever reasons it chose, find a nuisance where, in fact, there was none. We think Navar has met his burden of showing the invalidity of ordinance 89-108.

In finding Aurora’s noise ordinance to be vague and overly broad, the trial court singled out the failure of the ordinance to define or delineate any sort of measurement as to when commercial activity is or becomes “audible.” The City brushes aside the lower court’s vagueness objections by reciting dictionary definitions of the challenged terms and asserting, with little further support or argument, that the terms can be easily comprehended by a reasonable person of average intelligence and, therefore, are not unduly vague. We think the City misses the thrust of a constitutional due process inquiry.

Due process is violated if a law is so vague and devoid of standards as to leave the public unsure of what is and is not prohibited (Bastioan v. Personnel Board (1982), 108 Ill. App. 3d 672, 676) or if it fails to supply adequate guidelines to the administrative body which must enforce it. (People ex rel. Stamos v. Public Building Comm’n (1968), 40 Ill. 2d 164, 174; Bastian, 108 Ill. App. 3d at 676.) The language of an ordinance must convey sufficiently definite warning and fair notice of what conduct is proscribed, and whether notice is adequate is measured by common understanding and practices. (City of Collinsville v. Seiber (1980), 82 Ill. App. 3d 719, 725.) While we agree with Aurora that “we can never expect mathematical certainty from our language” (Grayned v. City of Rockford (1972), 408 U.S. 104, 110, 33 L. Ed. 2d 222, 228-29, 92 S. Ct. 2294, 2300), we are of the opinion that those to be regulated by it are entitled to far more certainty than is now provided by the City’s noise ordinance, which provides neither the notice nor the standards required by due process guarantees.

The ordinance prohibits commercial activity which is “audible” from “adjacent premises.” As the City points out, it is commonly understood that sound is audible if it is loud enough to be heard and adjacent premises are those which share a common border with the premises in question. The City concludes that the ordinary, everyday meanings of these words adequately convey to a reasonable person of average intelligence what is prohibited by the ordinance. We do not agree. The problem here is not with the meaning of the individual words that are used but, rather, that the words used do not set forth a nuisance as that term is commonly understood.

A nuisance at common law is something which unlawfully annoys or does damage to another. (Belmar Drive-In Theatre v. Illinois State Toll Highway Comm’n (1966), 34 Ill. 2d 544, 546; City of Chicago v. Reuter Brothers Iron Works, Inc. (1947), 398 Ill. 202, 206.) Also, “[a] nuisance is something that is offensive, physically, to the senses and by such offensiveness makes life uncomfortable.” (Rosehill Cemetery Co. v. City of Chicago (1933), 352 Ill. 11, 30.) It is patently unreasonable to suppose that the City intended that any and all commercial activity which creates noise after 9 p.m. should be declared annoying or offensive and, therefore, a nuisance merely because the noise can be heard nearby. Conversely, it is obvious the City meant to prohibit those commercial activities that create a kind or volume of noise which amounts to a nuisance when imposed upon neighbors after 9 p.m. However, because of the way the ordinance is drafted, all commercial activity which is audible from adjacent property after 9 p.m. is a nuisance and thus subject to prosecution. As suggested by the trial court, examples of unlikely commercial activity that might trigger enforcement of ordinance 89 — 108 are tow trucks driving on City streets between all-night garages and accident scenes; car doors being closed after 9 p.m. in the parking lots of all-night or late-night convenient stores such as 7-Eleven; and even the talking and laughter which often occurs near the entrances to various late-night establishments. This dichotomy between the actual wording of the ordinance and what might be reasonably expected by a person subject to the ordinance vividly illuminates the ordinance’s weakness.

There is no language in ordinance 89 — 108 by which a commercial activity can judge whether the noise it generates is of a kind or volume to constitute a nuisance. There is not even an indication of whether a nuisance in a commercial area is to be differentiated from a nuisance in a residential area. Absent guidelines, the business owner or operator, who is subject to the ordinance, is forced to decide for himself whether noise from the business is sufficient to be a nuisance and thus to trigger enforcement of the ordinance. The owners/operators then face a dilemma because, if they gauge incorrectly and the City determines they are in violation, they may be prosecuted despite their best efforts to comply. The language of the ordinance, even when considered in its everyday context, fails to convey what constitutes a nuisance and what, therefore, is prohibited. Like statutes, an ordinance violates due process guarantees when its terms “are so incomplete, vague, indefinite and uncertain that men of ordinary intelligence must necessarily guess at their meaning and differ as to their application.” (Krebs v. Thompson (1944), 387 Ill. 471, 477; see also Spinelli v. Immanuel Evangelical Lutheran Congregation, Inc. (1986), 144 Ill. App. 3d 325, 331.) The trial court correctly found ordinance 89 — 108 to be impermissibly vague.

Just as the ordinance leaves those to be regulated without fair warning of what they may or may not do, so also it leaves those charged with its enforcement with no direction as to when a violation occurs. Absent guidelines within the ordinance itself as to when or what kind of noise amounts to an actionable nuisance, an enforcement officer is free to decide, strictly on his own, whether the noise complained of in a given situation constitutes a breach of the ordinance. Since he need not adhere to any standards, it is clear that the officer might find a violation where there exists no nuisance in fact. Reliance on the unbridled discretion of administrative officials fosters the arbitrary and discriminatory enforcement which is prohibited by both the State and Federal Constitutions. Grayned v. City of Rockford (1972), 408 U.S. 104, 108-09, 33 L. Ed. 2d 222, 227-28, 92 S. Ct. 2294, 2299.

The conclusion we reach is consistent with prior decisions regarding similar noise ordinances. In City of Chicago v. Reuter Brothers Iron Works, Inc. (1947), 398 Ill. 202, 206, a zoning ordinance restricting noise of a “disagreeable or annoying nature” withstood a due process vagueness challenge. The court found that the words “disagreeable” and “annoying” had a well-established meaning in the definition of a common-law nuisance (Reuter, 398 Ill. at 206-07), thereby sufficiently setting forth the duty of those to be regulated. Reuter was determinative in upholding an ordinance against a constitutional challenge in Dube v. City of Chicago (1955), 7 Ill. 2d 313. The Dube ordinance was very similar to the one in Reuter, except that the noises to be prohibited in Dube were those “disturbing the peace and comfort of occupants of adjacent premises.” (Dube, 7 Ill. 2d at 324.) The court in Mister Softee of Illinois, Inc. v. City of Chicago (1963), 42 Ill. App. 2d 414, discussed a vagueness challenge to an ordinance which prohibited making noise which was “distinctly and loudly audible” on public streets. While the court noted that it had no authority to pass on constitutional questions, it found that there was no debatable constitutional question as to the validity of the ordinance and dissolved an injunction which had enjoined the City from enforcing the ordinance as applied to the plaintiffs. An ordinance which prohibited “loud and raucous sounds” was challenged on the ground that the word “raucous” was impermissibly vague in Town of Normal v. Stelzel (1982), 109 Ill. App. 3d 836. The court, in upholding the ordinance, relied on Kovacs v. Cooper (1949), 336 U.S. 77, 93 L. Ed. 513, 69 S. Ct. 448, where the court had rejected a vagueness challenge to an ordinance prohibiting “loud and raucous noises.” While it had characterized the phrase “loud and raucous” as abstract, the Kovacs court found that these words had acquired an everyday meaning which sufficiently conveyed what conduct was proscribed by the ordinance.

The key difference between the ordinances discussed above and Aurora’s ordinance 89 — 108 is that every one of the cited ordinances includes language which limits broad and general words like “sound,” “noise,” or “audible” in such a way that a nuisance is delineated. The limiting words make it possible to discern when the “audible” sound amounts to a nuisance in fact. As we have pointed out, although not all noise which can be heard from commercial activity after 9 p.m. constitutes an actual nuisance, under Aurora’s ordinance all audible noise created by commercial activity after 9 o’clock at night may be subject to prosecution. Under its ordinance as it is drafted, Aurora is far too free to find a nuisance when, in fact, there is none. A city has no power to declare that to be a nuisance which is not a nuisance in fact. (Dube, 7 Ill. 2d at 325; see also Rosehill Cemetery Co. v. City of Chicago (1933), 352 Ill. 11.) The failure of ordinance 89 — 108 to provide guidance to either those charged with compliance or those charged with its enforcement draws us to the inevitable conclusion that the ordinance is unconstitutional on its face.

The trial court also found ordinance 89 — 108 to be overly broad. While both parties address this issue, both also agree that there is considerable doubt as to the applicability of the overbreadth doctrine to the commercial activity addressed by the ordinance. (See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 71 L. Ed. 2d 362, 102 S. Ct. 1186.) Moreover, we note that the City gives the issue only cursory treatment, and Navar’s argument goes more to vagueness than to overbreadth. In any event, we need not address this issue since we have already found the language of the ordinance to be so vague and uncertain as to be offensive to due process.

The City makes a lengthy argument that error occurred at the trial level because the court below granted injunctive relief to Navar as a result of the court’s own bias and prejudice rather than as a result of careful consideration of the evidence and law introduced at the hearing. In light of this serious charge, we have carefully reviewed all pertinent parts of the record and conclude that there is no basis for the City’s claim. First of all, we reiterate and expand upon what we said earlier: despite the City’s insistence to the contrary, there is absolutely no indication that the trial court ignored any of the evidence or law which was presented to it. On the contrary, both the court’s oral comments and its written findings indicate that it considered very carefully both the facts presented to it and the law relied upon by counsel.

We recognize, and it is readily apparent from the report of proceedings, that the trial court was disturbed by this case. It can be inferred from his comments that the judge was disturbed by the City’s attempt to enforce a nonexistent ordinance and by what appeared to him to be personal motivation for selective and vigorous enforcement against Navar. However, it is also clear from his own remarks that by the time of the hearing on the post-trial motion the judge had become keenly aware of his own reactions to the testimony he had previously heard, had reviewed the file on the case in considerable depth, and had given the matter serious thought. Only after all of this did he conclude that it was necessary to decide the constitutional question raised by Navar. At the conclusion of the hearing itself the court again mentioned the way Mr. Navar’s situation had been handled but then made a clear transition to his discussion of the constitutional problems with the ordinance. On these facts we cannot say the trial court’s decision sprang from his personal feelings regarding this case. The City’s assertions in this regard are not justified.

We turn now to the City’s contention that the award of attorney fees to Navar, in the amount of $2,365, was improper. In his prayer for relief Navar asked for fees and cited section 1988 of the Civil Rights Attorney’s Fees Awards Act of 1976 (section 1988) (42 U.S.C. §1988 (1988)), which provides for fee awards in civil rights cases. Aurora first attacks the award on the ground that section 1988 is not applicable because Navar did not plead a cause of action under either section 1983 of the Civil Rights Act (section 1983) (42 U.S.C. §1983 (1988)) or any of the other Federal statutes, as specifically set forth in section 1988, whose enforcement may merit a fee award. Aurora further asserts that attorney fees are not available in declaratory judgment actions such as this one. Navar responds that he never sought fees under either the declaratory judgment statute (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 701 et seq.) or section 1983. Rather he contends that he is entitled to fees under a provision of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 1 — 1—1 et seq.) or, alternatively, directly under section 1988. We disagree with Navar on both counts.

The section of the Illinois Municipal Code invoked by Navar, section 11 — 13—15 (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 13—15), permits adversely affected owners or tenants of real property to bring an action attacking zoning and building violations on neighboring real property. The cause of action extends also to the proper municipal officials. Among other things, such an action may be brought “to prevent illegal activity on the property involved.” Successful plaintiffs in these actions are to be awarded attorney fees. Navar attempts to bootstrap himself into the position of a plaintiff under this statute by asserting that he brought a successful suit to prevent illegal activity by the City directed at his property. He contends that his suit revealed, and secured a remedy against, the City’s illegal attempts to enforce a nonexistent ordinance and its unlawful attempt to prosecute him under its ordinance without giving prior notice to abate the alleged nuisance. Navar’s argument asserts a tortured and insupportable reading of the statute.

Under section 11 — 13—15 municipalities have the power to enforce zoning and building ordinances in order to promote public health, welfare and safety. (Launius v. Najman (1984), 129 Ill. App. 3d 498, 502.) The statute extends this enforcement authority to adjacent landowners or tenants for the purpose of affording relief to private citizens whose municipal authorities are slow or reluctant to act (Launius, 129 Ill. App. 3d at 502), or where the interests of the municipality and general public differ from the interests of the private citizens (City of Chicago v. Westphalen (1981), 93 Ill. App. 3d 1110, 1130), and it gives an adjacent landowner a private right of action against a private violator. (Heerey v. Berke (1989), 179 Ill. App. 3d 927, 934.) The award of attorney fees under section 11 — 13—15 is a permissible sanction imposed by the statute to secure compliance with local building and zoning ordinances. (Pasfield v. Donovan (1956), 7 Ill. 2d 563, 568; Launius, 129 Ill. App. 3d at 502.) Clearly, the statute is intended to give property owners a legal tool to attack detrimental neighborhood ordinance violators when the municipality has not done so. Navar, however, is not attempting to secure compliance with any building or zoning ordinance by a private violator. Absent an ordinance violation, there is no purpose for imposing the sanction of an attorney fee award.

In addition, the statute does not attempt to enable property owners to reach the kinds of violations which Navar attributes to the City. Plaintiff in Heerey invoked section 11 — 13—15 in an attempt to enjoin the City of Chicago from issuing building permits. The complaint, which was dismissed for failure to state a cause of action, alleged that the City had allowed unlawful construction due to its failure to enforce the conditions and requirements in its own municipal permits. In affirming the dismissal of the complaint, the court recognized that the statute allows either the city or an adjacent landowner to proceed against zoning ordinance violators but added that it does not provide a cause of action against the city by a landowner. Plaintiff argued that section 11 — 13—15 permits a cause of action against the city since it does not preclude such an action. The court responded that this argument was “contrary both to the language of the statute and to the rules of statutory construction, which provide that the plain and obvious meaning of a statute may not be enlarged by the court. Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 84, 256 N.E.2d 758.” (Heerey v. Berke (1989), 179 Ill. App. 3d 927, 934.) In our view the meaning of section 11 — 13—15 is as plain and obvious now as it was when considered by the Heerey court. It did not then provide a cause of action to ensure a city’s compliance with its own ordinances, such as that proposed by Navar, and we decline to enlarge its meaning now. Navar’s recourse to section 11 — 13—15 is of no avail.

Navar’s reliance on City of Champaign v. Roseman (1958), 15 Ill. 2d 363, is misplaced. As Navar notes, in Roseman the city was awarded attorney fees under a predecessor statute of section 11 — ISIS. However, the former law, section 73 — 9 of the Revised Cities and Villages Act (Ill. Rev. Stat. 1957, ch. 24, par. 73 — 9), provided that if relief was granted under the section the court could allow “the plaintiff” an attorney fee award. No distinction was made between plaintiff local authorities and plaintiff owners or tenants. In contrast, section 11 — 13—15 (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 13—15), while it still provides the local municipality with a cause of action, also states that the plaintiff shall be awarded attorney fees “[i]f an owner or tenant files suit” pursuant to the section and the court finds in plaintiff’s favor. Since owners and tenants are specifically named while municipalities are not, it appears the present statute is designed to provide attorney fee awards to plaintiff property owners or tenants but not to municipal plaintiffs. Thus, regardless of what was awarded to the city in Roseman, a plaintiff municipality would not be likely to collect a fee award under the statute as relied upon by Navar.

Navar also claims he is entitled to attorney fees under section 1988, which provides in pertinent part:

“In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92 — 318 [20 U.S.C. 1681 et seq.], or title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], 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.” (42 U.S.C. §1988 (1988).)

Navar states that he never pleaded or argued in the trial court that he was seeking relief under section 1983, nor does his counterclaim reveal that he pleaded any of the other civil rights statutes mentioned in section 1988. Plaintiff appears to argue that section 1988 is applicable merely because he prevailed on his constitutional challenge and that invocation of the Federal statutes mentioned within section 1988 is not necessary. We do not agree.

The fee award portion of section 1988 does not in any way create a cause of action. Nor does it imply that it awards fees for actions brought to enforce specific constitutional provisions. Rather, it relates directly to the causes of action which arise under the statutory sections named within itself. Accordingly, we believe that plaintiffs seeking section 1988 fees must in some way invoke the statutes whose enforcement is encouraged by section 1988.

It may be that plaintiffs are not required to specifically identify in their pleadings, or specifically rely upon, one of the provisions set forth in section 1988 in order to prevail on a motion for section 1988 attorney fees. (Americans United for Separation of Church & State v. School District (6th Cir. 1987), 835 F.2d 627, 631.) It does not follow, however, that plaintiffs’ pleadings and arguments need have no connection at all to the statutory provisions named in section 1988. In Americans United the court held that attorney fee awards are proper under section 1988, despite the absence of explicit pleading of, or reliance on, or even reference to one of the statutes named in the section, as long as the pleadings and evidence present a substantial fourteenth amendment claim which is related to the prevailing party’s ultimate success and for which section 1983 provides a remedy. (Americans United, 835 F.2d at 631.) Although the complaint in American United did not refer to any of the civil rights statutes listed in section 1988, it pleaded a jurisdictional statute which closely tracked the language of section 1983 and had been described by the United States Supreme Court as the “ ‘jurisdictional counterpart’ ” of section 1983. (Americans United, 835 F.2d at 632, quoting Lynch v. Household Finance Corp. (1972), 405 U.S. 538, 543, 31 L. Ed. 2d 424, 429, 92 S. Ct. 1113, 1117.) Too, plaintiffs' complaint, while it did not specifically rely on section 1983, made the allegations essential to state a cause of action under section 1983. The court concluded that plaintiffs had prevailed in what was essentially an action to enforce a provision of section 1983 and thus had sufficiently satisfied the requirements of section 1988 to warrant a fee award.

Like the complaint in Americans United, Navar’s complaint fails to specifically allege reliance on any of the statutes listed in section 1988. Unlike the American United plaintiffs, however, who strove to fit their complaint into the parameters of a section 1983 action, Navar appears to disclaim such an action when he declares to this court that he “never pleaded or argued in the trial court that he was seeking relief under 42 U.S.C. §1983.” Nowhere does counter-plaintiff attempt to show that his complaint substantially states a cause of action under any of the statutes named in section 1988. Nor does his complaint on its face track the statutory language in order to reflect a section 1983 action and, thus, merit the fees awarded him by the trial court. In short, Navar has offered no basis for sustaining his fee award.

Navar is not aided by his citation of Florida Pawnbrokers & Secondhand Dealers Association, Inc. v. City of Fort Lauderdale (S.D. Fla. 1989), 711 F. Supp. 1084, since there was no issue raised there as to whether any of the section 1988 statutory provisions had been relied on. Indeed, the opinion makes no mention of the basis on which fees were requested. On the other hand the court discussed section 1983 liability and applied it to the City. Thus, we think it likely that section 1983 had been raised by plaintiffs. Since Navar has shown no basis for the fees granted to him by the trial court, we conclude that the fee award was improper and must be reversed.

Based on the reasons stated above, we affirm that part of the order of the circuit court of Kane County which granted a permanent injunction against enforcement of ordinance No. 89 — 108 by the City of Aurora. We reverse the portion of the order which granted attorney fees to the counterplaintiff.

Affirmed in part; reversed in part.

McLAREN and GEIGER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    BYRON KNOX et al., Plaintiffs-Appellants, v. KEENE CORPORATION et al., Defendants-Appellees.
    Second District
    Nos. 2 — 90—0599, 2 — 90—0600 cons.
    Opinion filed March 13, 1991.
    — Rehearing denied April 15, 1991.

      Kathy Byrne, of Cooney & Conway, of Chicago (James R. Hopkinson, of counsel), for appellant Byron G. Knox.
    James R. Hopkinson, of Cooney & Conway, and Patrick E Geary, of Arnstein & Lehr, both of Chicago, for appellants Earl Hackbarth and Ella Louise Hackbarth.

      David R. Sinn and Karen L. Kendall, both of Heyl, Royster, Voelker & Allen, of Peoria, and Francis A. Spina, of Tressler, Soderstrom, Maloney & Priess, of Wheaton, for appellees Keene Corporation, Armstrong World Industries, GAF Corporation, Fibreboard Corporation, National Gypsum Company, Dana Corporation, Keasbey-Mattison Corporation, and Flintkote Company.
    James K. Toohey and Anne T. Stinneford, both of Ross & Hardies, of Chicago, for appellee Pittsburgh Corning.
    Edward J. McCambridge, of Segal, McCambridge, Singer & Mahoney, Ltd., and James P. Dorr and Lawrence D. Mishkin, both of Wildman, Harrold, Allen & Dixon, both of Chicago, for appellee Combustion Engineering.
    Bruce W. Lyon and Barry L. Kroll, both of Williams & Montgomery, Ltd., of Chicago, for appellee Eagle-Picher Industries.
    Robert H. Riley, Paul A. Scrudato, and Thomas P. Heneghan, all of Schiff, Hardin & Waite, of Chicago, for appellees Owens-Illinois, Inc., and Keene Corporation.
    Stephen J. Smalling, of Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago, for appellee Asbestospray Corporation.
    Gary Sharp and William Osantowski, both of Cheatham & Acker, of West Bloomfield, Michigan, for appellee H.K. Porter Company.
    Reardon, Orr & Dvorak, of East Peoria (Bret S. Babcock, of counsel), for appellee W.R. Grace Company.
    Robert L. Martier, Robert S. Baker, and Keith A. Chadwick, all of Baker & Martier, of Chicago (Ruth V. Enright, of counsel), for appellee Owens-Corning Fiberglas.
    Daniel J. Cheely, Francis D. Morrissey, and Michael A. Pollard, all of Baker & McKenzie, of Chicago, for appellee AC & S, Inc.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Byron Knox, appeals from the trial court’s order of May 1, 1990, dismissing with prejudice his amended complaint. In the consolidated case, plaintiffs Earl and Ella Louise Hackbarth (the Hackbarths) appeal from the trial court’s order of April 12, 1990, dismissing their amended complaint with prejudice. We dismiss in part and affirm in part.

On February 7, 1989, the Hackbarths filed a two-count complaint against 24 defendants. On November 1, 1989, Knox filed a one-count complaint against 23 defendants. The complaints alleged that Earl Hackbarth and Knox, during their careers as sheet metal workers, were exposed to asbestos products designed, processed, manufactured and sold by the defendants, and that, as a result of defendants’ negligence, both now suffer from an asbestos-related lung disease. The second count of the Hackbarths’ complaint alleged loss of consortium on behalf of Ella Hackbarth. Other plaintiffs filed similar suits against the various defendants. The Hackbarth complaint, along with 13 other complaints, was dismissed on November 19, 1989. The Hackbarths filed an amended three-count complaint on February 5, 1990; this complaint sounded in strict liability, negligence, and loss of consortium. On April 12, 1990, the trial court dismissed with prejudice the Knox complaint, the amended Hackbarth complaint, and the 15 other similar complaints. Knox and two others were granted leave to file amended complaints. The court, on its own motion, consolidated all 17 cases for all purposes but trial and instructed the clerk to make all docket entries for the 17 cases in the Hackbarth file. In addition, a status conference was scheduled for April 27 for all cases. At that conference, the court dismissed the three amended complaints which had been filed. The court also stated that the order dismissing all 17 cases would be final and appealable from the date of entry of the dismissal order; such order was entered on May 1. The appeals arise from this order.

We must first address this court’s jurisdiction over the Hackbarth appeal. The Hackbarths’ amended complaint was dismissed with prejudice on April 12, 1990; the notice of appeal therefrom was filed on May 30, some 48 days later. Illinois Supreme Court Rule 303(a) provides in part:

“[N]otice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from.” (134 Ill. 2d R. 303(a).)

The Hackbarths argue that the April 12 order was not final and that the trial court retained jurisdiction over all 17 cases until May 1. We disagree.

An order is final if it terminates the litigation between parties or disposes of their rights on some definite, separate part of the litigation. (In re Upmann (1990), 200 Ill. App. 3d 827, 834.) Where dismissal is based upon a determination that the complaint, as a matter of law, is insufficient to state a cause of action, the order is final and appealable by its .nature. (In re Estate of Hopkins (1988), 166 Ill. App. 3d 652, 655.) A general dismissal with no right to amend and no request for leave to amend is final and appealable. (Hopkins, 166 Ill. App. 3d at 655.) In the case before us, the April 12 order terminated all litigation between the Hackbarths and the many defendants. The order stated that the complaint failed to state a cause of action because the theory upon which relief was sought is not recognized in Illinois. Further, the Hackbarths did not wish to amend their pleadings. These facts are clear indicia of the final and appealable nature of the April 12 order.

The Hackbarths argue that the trial court intended to retain jurisdiction over their suit beyond April 12 and point to language within the order wherein the court stated that it would “conduct a status conference in each of the above-captioned consolidated causes” on April 27. According to the Hackbarths, the trial court’s intention to retain jurisdiction precludes an order from becoming final and appeal-able. In addition, the Hackbarths argue, the court at that hearing stated that all the orders would be final and appealable as of the date it signed the order emanating from the conference; such an order was signed on May 1. This retention of jurisdiction, according to the Hackbarths, destroyed the final and appealable nature of the April 12 order.

A trial judge has no authority to excuse compliance with filing requirements of supreme court rules concerning appeals. (In re Smith (1980), 80 Ill. App. 3d 380, 382.) An order is final and appealable because of its nature and effect, not because a trial judge grants or refuses to grant it such power. Just as a judgment as to fewer than all parties or claims does not become final and appealable merely because the court recites the magical phrase “no just reason for delaying enforcement or appeal” (134 Ill. 2d R. 304(a); see In re Johnson (1985), 134 Ill. App. 3d 365, 368), a final and appealable order is not made nonfinal and nonappealable by a trial court’s determination. The trial court’s statements regarding the nature of its April 12 order had no effect on the order. That order having been final and appealable, the Hackbarths should have filed their notice of appeal within 30 days. As they did not, we have no jurisdiction over their appeal, and it is, therefore, dismissed.

The Hackbarth and Knox amended complaints were identical, with the exception of a count alleging loss of consortium in the Hackbarth complaint. Were we to reach the merits of the Hackbarth appeal, the analysis of the Knox appeal would be applicable.

We first note that Knox concedes that the first count of his complaint, sounding in product liability, is barred by the statute of repose (III. Rev. Stat. 1989, ch. 110, par. 13 — 213). We therefore need consider only the negligence count of Knox’s amended complaint.

The trial court’s order dismissing Knox’s amended complaint states in part:

“1. The Single Indivisible Injury Rule has not been adopted in Illinois.
2. The Amended Complaints at Law filed in Knox, Gray and Zulauf do not state a cause of action.”

Knox now argues that the single indivisible injury rule has been adopted in Illinois and that, consequently, his amended complaint stated a cause of action. The single indivisible injury rule has been stated as:

“Where two or more persons, under circumstances creating primary accountability, directly produce a single, indivisible injury by their concurrent negligence, they are jointly and severally liable, even though there is no common duty, common design or concerted action.” (Emphasis added.) (Storen v. City of Chicago (1940), 373 Ill. 530, 533.)

We agree with Knox that this rule has been adopted in Illinois. However, Knox did not plead his case as required by the single indivisible injury rule. Storen refers to “concurrent negligence.” A “classic case” of concurrent negligence, according to our supreme court, is contained in Buehler v. Whalen (1977), 70 Ill. 2d 51. In Buehler, defendant’s negligent driving caused her to slam into plaintiff’s car, in which plaintiff was attempting to make a left-hand turn; the plaintiff’s car then burst into flames, the result of a design defect in the car. The separate and concurrent negligent acts of the defendant driver and the automobile manufacturer “combine[d] to produce a single individual injury.” (Buehler, 70 Ill. 2d at 63.) In the case before us, Knox has failed to allege concurrent negligence by the defendants. Knox alleges that, over the course of his career, he worked with or near asbestos products designed, processed, manufactured, distributed, and sold by defendants. Nowhere does plaintiff contend that products from different defendants were used concurrently or in conjunction with one another. At best, Knox alleges cumulative negligent actions by defendants, actions occurring throughout his career in sheet metal working. The trial court did not err in dismissing this cause for failure to state a cause of action.

Additionally, Knox’s complaint fails to allege with any specificity the specific products Knox claims caused his illness. These allegations fail to apprise the defendants of the products that allegedly caused the injury and the place in the chain of production the defendants allegedly occupied. (See Costello v. Unarco Industries, Inc. (1984), 129 Ill. App. 3d 736, 744.) The fact-pleading requirements of Illinois require a complaint to apprise a defendant of sufficient facts upon which to base a defense. (Costello, 129 Ill. App. 3d at 744-45.) In the case before us, Knox’s complaint failed to provide these facts. The trial court did not err in dismissing the complaint for failure to state a cause of action.

For these reasons, the Hackbarths’ appeal is dismissed, and the judgment of the circuit court of Winnebago County dismissing Knox’s amended complaint is affirmed.

No. 2 — 90—0599, Affirmed.

No. 2 — 90—0600, Dismissed.

BOWMAN and GEIGER, JJ., concur.


author: JUSTICE CAMPBELL JUSTICE MANNING,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES WASHINGTON, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 87—1311
    Opinion filed November 13, 1990.
    — Rehearing denied March 27, 1991.

      MANNING, J., dissenting.
    Randolph N. Stone, Public Defender, of Chicago (Millicent Willis, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Joseph G. Howard, and Judith C. Rice, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant, James Washington, was charged by indictment with criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 13(aXl)) and aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12— 14(aXl)). Following a bench trial, the defendant was convicted of aggravated criminal sexual assault and sentenced to 10 years’ imprisonment. On appeal, the defendant contends that: (1) he received ineffective assistance of counsel where disciplinary proceedings were simultaneously pending against his defense counsel; (2) he was not proven guilty beyond a reasonable doubt where the victim’s testimony was neither corroborated nor clear and convincing; and (3) the trial court considered improper factors in determining the defendant’s guilt. For the following reasons, the judgment of the trial court is reversed and the cause is remanded for a new trial.

The record reveals the following. The victim testified that on May 29, 1986, she and her boyfriend paid defendant $30 to rent a room for 30 days in his apartment. The victim testified that, prior to that date, she had never met the defendant and, to the best of her knowledge, neither she nor her boyfriend, P.S., had seen the apartment prior to the rental. When P.S. entered into the rental agreement, defendant gave him one key to the apartment. Subsequently, the victim and P.S. had two keys made. The first night that they stayed in the apartment, the victim and P.S. slept on a queen size bed with only a box spring. The next day they went grocery shopping, placed the food they had purchased in the refrigerator and left the apartment. While away from the apartment, they drank four bottles of wine. Upon their return, they discovered that the burglar bars on the apartment door were locked and they could not get inside. When some of defendant’s friends came to the door, Rick, who also lived in the apartment, let the friends in. At that time, the victim and P.S. also entered. Upon seeing the victim and P.S., defendant asked them to leave the apartment. Defendant and P.S. began fighting, and defendant took the apartment key from him and tore his pants pocket with a knife while looking for money. Thereafter, defendant went into the kitchen to search the victim, and upon completion of the search, she sat on the couch next to P.S. in the living room.

The victim further testified that she needed to use the bathroom and defendant followed her into the bathroom and told her to take off her pants. When she refused, defendant hit her on the head with a wine bottle and again ordered her to remove her pants. After a second refusal, he cut her on the left side of her back with the broken wine bottle. She then removed her pants and lay on the floor as instructed. Defendant removed his pants and proceeded to place his penis into her mouth, then her vagina, again in her mouth, and back in her vagina, where he ejaculated. Defendant then pulled up his pants and returned to the living room. The victim followed him shortly thereafter and saw P.S. sitting on the living room floor surrounded by five people. These individuals began threatening him and the victim. Subsequently, defendant allowed them to leave the apartment. Once outside, the victim told P.S. about the sexual attack by defendant and about her injuries. They went to a “pay phone” and called the police. When the police arrived, they took the victim to Michael Reese Hospital for treatment. The victim testified that, while at the hospital, she gave her apartment key to P.S. in order for him to accompany the police back to defendant’s apartment. She stated that she was not having a menstrual period on the day of the incident.

P.S.’s testimony was very similar to the testimony given by the victim. However, P.S. also testified that his friend Cordell told him about the availability of defendant’s apartment and that P.S., Cordell and defendant went to look at the apartment. P.S. stated that the bed that he and the victim slept on was “a little less than full size.” P.S. further testified that on the next day, when he and defendant were fighting, defendant tried to stab him with a “paring knife.” P.S. testified that the victim went to use the bathroom and defendant followed her into the bathroom and told his friends to keep P.S. in the living room. P.S. heard “pounding and scuffling” noises on the door and walls of the bathroom. Defendant was sweating when he came out of the bathroom, and the victim came out shortly thereafter. P.S. also testified that when he and the victim left defendant’s apartment, her head and hands were bleeding and she had a large spot of blood on the back of her blouse. They called the police, and the victim was taken to Michael Reese Hospital. While at the hospital, the victim gave P.S. her key to defendant’s apartment. When the police and P.S. arrived at defendant’s apartment, P.S. gave the key to the police, who opened the door and subsequently arrested defendant.

The parties stipulated that, if Dr. Gordon of Michael Reese Hospital were called to testify, he would state that when he examined the victim at the hospital, he noticed a .3-centimeter puncture wound on the left side of her back and a swollen laceration on her head. He would further testify that he took oral and vaginal smears from the victim which he gave to an evidence technician. It was also stipulated that Dr. Gordon would testify that when he examined the victim, she was found to be in the late state of her menstrual cycle and upon the taking of a blood sample, her blood-alcohol level was 293 milligrams. It was further stipulated that if Mary Ann Caporusso, a microanalyst for the Chicago police department, were called to testify, she would state that upon performing a test on the oral and vaginal smears, the oral smear tested negative for spermatozoa and semen and the vaginal smear tested positive for spermatozoa.

Defendant testified that he was a recovering alcoholic and he did not know the victim until he met her on May 30, 1986, at Aleo drugstore with P.S. He stated that the victim followed him out of the store and asked him if he wanted a date. Defendant responded that he did not have enough money, but others at his apartment might want to put together a package deal. The victim then accompanied him to his apartment, where they started drinking and the victim began "talking in riddles.” Thereafter, P.S. came to the apartment and angrily took the victim to the bedroom, where they started fighting. Defendant went into the bedroom, “broke up” the fight, and noticed that the victim had blood on her face. P.S. and the victim left the apartment, and defendant discovered that his door key and wallet were missing. Defendant denied that he had rented a room to the victim and P.S. and that they had spent the night in his apartment. Defendant further denied having sexual intercourse with the victim because she was drunk and could not set a price. Defendant testified that he receives disability insurance because his left hand has been paralyzed for three years and, as a result of the paralysis, he does not have any strength in the left hand. Defendant also testified that after he had gone to bed on the night in question, the police entered his apartment with a key and searched the apartment. The police did not recover any broken bottles and they did not discover any blood.

Detective Robert Utter testified that he was assigned to investigate the rape of the victim. When he returned to the apartment with P.S. to arrest defendant, he did not find any broken glass on the bathroom floor and he observed defendant take out his keys and wallet when he put on his trousers. Detective Utter further testified that defendant resisted the arrest and, because of defendant’s strength, it took both him and another officer to handcuff defendant.

Defendant initially argues that he was denied his sixth amendment right to the effective assistance of counsel where defense counsel was subject to pending disciplinary proceedings for professional misconduct while he was acting as defendant’s counsel. Defendant asserts that defense counsel’s alleged incompetence was shown by his inadequate preparation for trial as evidenced by his: (1) failure to question the victim about sexual relations with another on the night of May 30, 1986; (2) failure to introduce medical records documenting defendant’s disability; and (3) conducting rambling cross-examinations indicating his failure to conduct a pretrial investigation.

The purpose of the constitutional requirement that a defendant is entitled to the effective assistance of counsel is to insure that the defendant will receive a fair trial. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Moreover, the benchmark for determining an ineffective assistance of counsel claim is whether counsel’s performance so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. (People v. Cunningham (1989), 191 Ill. App. 3d 332, 337, 547 N.E.2d 765.) In order for a defendant to succeed on an ineffective assistance of counsel claim, he must show that counsel’s performance was so deficient that it fell below an objective standard of reasonableness and that the performance prejudiced the defense of the case. (Strickland, 466 U.S. at 687, 80 L. Ed 2d at 693, 104 S. Ct. at 2064; People v. Barnard (1984), 104 Ill. 2d 218, 233, 470 N.E.2d 1005.) In order for a defendant to establish prejudice, he must demonstrate, “not simply a possibility of prejudice, but that the claimed error worked to his actual and substantial disadvantage.” People v. Owens (1989), 129 Ill. 2d 303, 318, 544 N.E.2d 276.

In determining whether a defendant has been prejudiced, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) In making this determination, the trier of fact must consider the totality of evidence presented. (People v. Daniels (1987), 164 Ill. App. 3d 1055, 518 N.E.2d 669; People v. Wilson (1986), 149 Ill. App. 3d 1075, 501 N.E.2d 863.) It is not necessary that courts determine whether counsel’s performance was deficient before analyzing the prejudice suffered by the defendant as a result of the alleged deficiencies. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, 1137.

In the present case, the State correctly argues that a strong presumption exists that conduct by counsel which involves trial strategy falls within reasonable professional judgment. Therefore, a review of counsel’s competence will not be extended to his exercise of judgment, discretion or trial tactics. (People v. Cunningham (1989), 191 Ill. App. 3d 332, 547 N.E.2d 765.) Defendant argues that at the time of trial, there were disciplinary proceedings pending against counsel which impaired counsel’s performance resulting in an inability to adequately defend his client and, therefore, a denial of competent representation.

Although the pendency of disciplinary proceedings alone does not necessarily establish that an attorney is incompetent to defend a person charged with a crime (People v. Perry (1989), 183 Ill. App. 3d 534, 540 N.E.2d 379), in certain circumstances, pending proceedings before the Attorney Registration and Disciplinary Commission (the ARDC) during the same period that the attorney is representing a defendant in a capital case may affect counsel’s ability to represent his client. (People v. Williams (1982), 93 Ill. 2d 309, 444 N.E.2d 136.) In Williams, defendant was sentenced to death following his convictions of murder, aggravated kidnaping and rape. Defendant appealed directly to the supreme court on the ground that he had been denied effective assistance of counsel. The supreme court affirmed the convictions and sentence. While defendant’s petition for rehearing was pending, a disciplinary case involving his attorney, Archie Weston, was argued before the supreme court. In that case, the Hearing Board and Review Board of the ARDC recommended that Weston be disbarred on the grounds that, in matters unrelated to defendant’s case, he had neglected legal matters entrusted to him, had committed acts prejudicial to the administration of justice and acts which intentionally caused damage and prejudice to his client, and had commingled and converted a client’s funds. Weston neither answered the complaint nor appeared to defend himself. Consequently, the allegations were considered admitted and the supreme court found them adequately supported by the evidence. As a result, Weston was disbarred.

Following the determination of the disciplinary case against Weston, the supreme court found that fundamental fairness required them to consider the information that the disciplinary case had put before them when considering defendant’s petition for rehearing in the criminal case, which petition was predicated on an ineffective assistance of counsel claim. After reviewing the evidence as to the charges of murder, aggravated kidnaping and rape, the supreme court held that the evidence was sufficient to prove defendant guilty beyond a reasonable doubt. However, the court also found that because of the newly acquired evidence as to the disciplinary proceedings against defense counsel at the same time he was representing defendant, it could not say, with any degree of certainty, that defendant had received effective assistance of counsel. Accordingly, it reversed and remanded the cause for a new trial. In reaching its decision, the Williams court stated:

“Moreover, while we do not believe that the burden of defending three clients for capital murder before two juries, standing alone, necessarily reduced counsel’s effectiveness, that fact in view of the new information now before us cannot be disregarded. In our original opinion we noted the additional burdens the simultaneous trials before separate juries placed on both the court and counsel, and for this and other reasons cautioned against their future use. That added burden, of course, accentuates the problems now posed.” 93 Ill. 2d at 325.

Similarly, in the present case, while defense counsel was representing defendant at trial, he was simultaneously defending his own case before the ARDC. In fact, as a result of the disciplinary proceeding, defense counsel was eventually disbarred. (In re Levin (1987), 118 Ill. 2d 77, 514 N.E.2d 174.) As in Williams, based on the foregoing, we cannot say with any degree of certainty that defense counsel’s pending disciplinary proceedings did not have a bearing on the quality of representation received by the defendant.

With respect to the alleged conflict of interest waiver prepared by defense counsel, defendant asserts that it was an acknowledgement, not a waiver, and, consequently, did not waive defense counsel’s potential conflict of interest. The alleged waiver stated:

“ACKNOWLEDGEMENT

I, James Washington, acknowledge that I wish to retain SHERWOOD L. LEVIN for a criminal case I now have pending.

I have been advised by said SHERWOOD L. LEVIN that he has disciplinary charges pending and knowing that it is still my desire that he represent me in this matter.

DATED: August 1,1986

(Signature)’’

The defendant has a fundamental right to receive effective assistance of counsel which requires that the defendant be afforded counsel who is free of conflicting interest or inconsistent obligations. (Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708; People v. Thomas (1989), 131 Ill. 2d 104, 545 N.E.2d 654; People v. Olinger (1986), 112 Ill. 2d 324, 493 N.E.2d 579.) The defendant is not required to show the existence of prejudice in order to justify a reversal of his conviction where defense counsel has an actual or possible conflict of professional interest. (People v. Thomas (1989), 131 Ill. 2d 104, 545 N.E.2d 654; People v. Free (1986), 112 Ill. 2d 154, 492 N.E.2d 1269; People v. Washington (1984), 101 Ill. 2d 104, 461 N.E.2d 393.) Although the defendant may waive the right to a conflict-free counsel (Holloway v. Arkansas (1978), 435 U.S. 475, 483 n.5, 55 L. Ed. 2d 426, 433 n.5, 98 S. Ct. 1173, 1178 n.5), the waiver is not valid unless he is admonished regarding the existence and the significance of the conflict. (People v. Olinger (1986), 112 Ill. 2d 324, 493 N.E.2d 579; People v. Kester (1977), 66 Ill. 2d 162, 361 N.E.2d 569.) In determining whether there has been an intelligent waiver of the defendant’s right to the assistance of counsel, the circumstances surrounding the claimed waiver must be reviewed and the accused’s background, experience, and conduct should be considered. People v. Washington (1984), 101 Ill. 2d 104, 461 N.E.2d 393; Johnson v. Zerbst (1938), 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019.

In the present case, the following colloquy occurred in the presence of the defendant:

“MR. LEVIN: Judge, I’m told, as I indicated to the Court, I thought there was a written waiver in the court file.

THE COURT: Okay. Record should reflect that I talked to Counsel concerning some ARDC problems that he may be having, and he has indicated that his client is aware of that and there’s a waiver, is that right, Mr. Washington?

THE DEFENDANT: Yes.

MR. LEVIN: I again talked with him, Judge, and he’s indicated to me he wishes to proceed today with my representing him, and wishes to persist in his waiver of a jury trial.

THE COURT: And if I recall right, none of the problems that you are having or were having had anything to do with ability.

MR. LEVIN: That’s correct, your Honor.

THE COURT: Or competency to handle matters, okay? Mr. Washington, your desire is still the same in relation to a jury? In other words, you are. still giving up your right to a jury trial?

THE DEFENDANT: Yes, sir, your Honor.

THE COURT: Okay. Jury waiver received.”

In our view, the record does not reflect a knowing and intelligent waiver by defendant. Neither the alleged written waiver nor the explanation given by the trial court reveals the reasons as to why there could be a conflict of interest. Moreover, the trial court did not explain the significance of the conflict and its potential impact on the attorney’s representation. Additionally, the record is devoid of any evidence that would support an argument that the trial court considered the background, conduct and experience of defendant when it determined that there had been an intelligent waiver. Under the facts of this case, we cannot conclude that defendant knowingly waived his right to be represented by counsel free of conflicting interest.

Notwithstanding the pending disciplinary proceedings and the invalid waiver, the evidence has established that in light of the actual and substantial prejudicial impact of counsel’s deficiencies, the defendant was denied his right to the effective assistance of counsel when defense counsel failed to question the victim about sex with someone other than the defendant on the night of May 30, 1986, and failed to introduce medical records documenting defendant’s disability in his left hand. Defense counsel’s failure to question the victim about sex with others on the night in question prejudiced defendant since sexual intercourse with another would have been very relevant in explaining the existence of spermatozoa in the victim’s vagina in light of defendant’s claim that he never had sexual intercourse with the victim. Similarly, defense counsel’s failure to introduce medical records documenting defendant’s disability in his left hand also prejudiced defendant. In particular, defendant maintained that he lacked the physical strength in his left hand to “hold a knife” or “swing a bottle” as P.S. and the victim alleged he had done. The trial court expressed concern with the evidence presented regarding defendant’s disability by stating that, “[Tjhere is no question about the fact that the defendant has a problem with his left hand. Whether its anywhere near as serious as he indicates, I doubt it. But he does have some kind of problem with his left hand. And he does have a hand that apparently cannot be opened all the way.”

Our supreme court has previously held that it is unnecessary for hospital records to be admitted in order to elicit an expert medical opinion. (Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322.) Instead, an expert witness may give an opinion in response to a hypothetical question based on facts contained in medical records even if the hospital records are not in evidence. (Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322; People v. Ward (1975), 61 Ill. 2d 559, 338 N.E.2d 171. See also People v. Cornille (1985), 136 Ill. App. 3d 1011, 484 N.E.2d 301.) While medical records are inadmissible into evidence without a proper foundation (Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322), expert medical testimony based on medical records documenting the defendant’s disability in his left hand would have been relevant to resolve the conflicting claims as to defendant’s physical strength. Therefore, if expert testimony based on medical records would have supported defendant’s claim of lack of strength, failure to introduce such testimony was prejudicial to defendant’s case.

Defendant'also asserts that his ineffective assistance of counsel claim is further supported by defense counsel’s rambling cross-examination indicating a failure by counsel to conduct a pretrial investigation. Defendant’s assertion is not supported by the record. In this case, defense counsel was operating under unique, high-pressure circumstances while simultaneously conducting a defense. The record indicates that the trial judge commented on defense counsel’s “extensive job” of cross-examining the victim, witnesses and police officers even though “little impeachment” resulted. Defendant did not identify any specific examples of rambling, and a review of defense counsel’s cross-examination does not support defendant’s contention that defense counsel failed to conduct a pretrial investigation.

Defense counsel is required by the sixth amendment to serve as a true advocate of the accused. (People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513; United States v. Cronic (1984), 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039.) We are not convinced that defense counsel in the present case provided the type of representation to the defendant he is required to provide under the United States and Illinois Constitutions. (U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8.) Since the totality of the circumstances leads us to believe that there does exist a reasonable doubt that the results of these proceedings would have been different but for defense counsel’s failure to question the victim about sex with others on the night of May 30, 1986, and defense counsel’s failure to introduce expert testimony based on defendant’s medical records regarding the disability in his left hand, counsel’s performance undermines our confidence in the outcome of the trial. In our view, these omissions by defense counsel fall below an objective standard of reasonableness. We therefore conclude that the defendant failed to receive his constitutional right to the effective assistance of counsel and he must be given a new trial. In light of our disposition of defendant’s ineffective assistance of counsel claim, it is unnecessary to address the remaining issues on appeal.

Finally, we believe that the evidence adduced at trial was sufficient for the trier of fact to conclude that the defendant was guilty beyond a reasonable doubt. Our belief regarding the sufficiency of the evidence does not mean we are making a finding as to defendant’s guilt or innocence which would be binding on retrial, but rather our consideration of the sufficiency of the evidence admitted at trial will remove the risk of subjecting the defendant to double jeopardy. See People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366.

For the reasons stated above, the judgment of the circuit court of Cook County is reversed and the cause remanded for a new trial.

Reversed and remanded.

BUCKLEY, P.J., concurs.

JUSTICE MANNING,

dissenting:

I must respectfully disagree with my learned colleagues to reverse this conviction and remand for a new trial. I agree with their discussion regarding the constitutional requirements established in Stride- land and Albanese and subsequent cases. However, I disagree that a conflict per se exists, and therefore, I do not agree that no prejudice need be shown.

In addition to defendant’s reliance on Strickland, he advances two additional bases upon which he seeks a reversal on ineffective assistance of counsel grounds. Defendant contends, and the majority agrees, that the instant case is governed by People v. Williams (1982), 93 Ill. 2d 309, 324, 444 N.E.2d 136, wherein the Illinois Supreme Court concluded that pending proceedings before the ARDC of the Supreme Court of Illinois during the same period that an attorney was representing three of four defendants in a capital case may have affected counsel’s ability to represent his client. Defendant argues that in the case at bar there were pending at the time of trial disciplinary proceedings against trial counsel which impaired counsel’s performance. He further maintains that such impairment resulted in an inability by counsel to adequately defend his client, and hence, a denial of competent representation.

We have previously held that the pendency of disciplinary proceedings alone does not necessarily establish that an attorney is incompetent to defend a person charged with a crime. (People v. Perry (1989), 183 Ill. App. 3d 534, 540, 540 N.E.2d 379.) Defendant’s reliance on Williams is misplaced. The factual matrix of that case is so totally distinguishable from the case at bar that it lends no support to defendant’s theory. Williams was a capital case in which the defense counsel represented three of four defendants. Two juries were impaneled and the trials were held simultaneously with counsel representing clients before both juries. At the same time, trial counsel had pending complaints before the Attorney Registration and Disciplinary Commission. Upon conviction and imposition of the death penalty for defendant Williams, the court initially affirmed on appeal both the conviction and the sentence. However, while a petition for rehearing was pending, the trial counsel’s disciplinary case was orally argued in the supreme court. (He was subsequently disbarred, In re Weston (1982), 92 Ill. 2d 431, 442 N.E.2d 236.) It was at that time that the court became aware of matters which it subsequently determined could have impacted adversely on counsel’s performance at defendant Williams’ trial. Based upon these revelations, which included a statement by counsel regarding his mental and physical condition as a result of his woes, the supreme court granted the petition for rehearing, reversing and remanding the case for a new trial.

In granting the defendant a new trial, the court stated that because of the newly acquired information pertaining to counsel’s troubles with ARDC pending at the same time as this procedurally complex capital case was being tried, it could no “longer say, with any degree of assurance, that Williams received the effective assistance of counsel guaranteed by the Constitution.” (Williams, 93 Ill. 2d at 324.) The Williams court cited numerous instances of inaction by counsel which under ordinary circumstances might have been attributable to either trial strategy or even an error in judgment, which do not establish incompetency. (See People v. Washington (1968), 41 Ill. 2d 16, 21, 241 N.E.2d 425; People v. Green (1967), 36 Ill. 2d 349, 351, 223 N.E.2d 101.) However, because of the uniqueness of the situation, the supreme court declined to apply the established tests generally applied in deciding whether a defendant has been deprived of his constitutional right to the assistance of counsel. (Williams, 93 Ill. 2d at 325.) The court went on to say “considering the unique circumstances and sequence of events in this capital case, which will rarely, if ever, be duplicated, that the interests of justice require that Dennis Williams be granted a new trial.” (Emphasis added.) Williams, 93 Ill. 2d at 325.

It is my view that the instant case hardly duplicates the factual circumstances found in Williams. It is a one-defendant, nonjury, non-capital, noncomplex case. The unique complexities existing in the Williams case are nonexistent here. Hence, I see no fundamental fairness necessity to abandon the established test used to determine the deprivation of effective assistance of counsel.

The second prong of defendant’s contention regarding ineffective assistance of counsel is that because a potential conflict of interest existed between himself and trial counsel, he was entitled to be admonished in detail regarding the nature of the conflict. He argues that notwithstanding a lack of actual incompetence, the devastating burden and emotional stress of an attorney being subjected to disciplinary proceedings constitute a conflict per se and must be intelligently and knowingly waived expressly by the client. He suggests that the proceeding which took place in the trial court addressing the waiver was a sham. If a conflict per se exists and if no intelligent waiver occurs, he contends no prejudice need be shown to support a reversal. In support of this argument defendant cites Williams (93 Ill. 2d 309), People v. Brown (1980), 80 Ill. App. 3d 616, 399 N.E.2d 1374, and Supreme Court Rule 401(a) (107 Ill. 2d R. 401(a)). As previously mentioned, Williams is inapposite. So, too, are Brown and Supreme Court Rule 401(a). In Brown, the statutory procedural safeguards are set forth concerning the waiver of a criminal defendant’s right to be represented by counsel and to proceed without any attorney.

The defendant has a fundamental right to receive effective assistance of counsel which requires that the defendant be afforded counsel who is free of conflicting interest or inconsistent obligations. (Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708; People v. Thomas (1989), 131 Ill. 2d 104, Ill. 545 N.E.2d 654; People v. Olinger (1986), 112 Ill. 2d 324, 339, 493 N.E.2d 579.) The defendant is not required to show the existence of prejudice in order to justify a reversal of his conviction where defense counsel has an actual or possible conflict of professional interest. (Thomas, 131 Ill. 2d at Ill. People v. Free (1986), 112 Ill. 2d 154, 167, 492 N.E.2d 1269; Washington, 101 Ill. 2d at 110.) However, the defendant may waive the right to a conflict-free counsel (Holloway v. Arkansas (1978), 435 U.S. 475, 483 n.5, 55 L. Ed. 2d 426, 433 n.5, 98 S. Ct. 1173, 1178 n.5), but the waiver must be knowingly made. (Olinger, 112 Ill. 2d at 339; People v. Kester (1977), 66 Ill. 2d 162, 168, 361 N.E.2d 569.) It is well settled that a defendant has not validly waived a conflict of interest unless he is admonished regarding the existence and the significance of the conflict. Olinger, 112 Ill. 2d at 339; Kester, 66 Ill. 2d at 168.

Under the facts of this case, I do not view trial counsel’s representation as a per se conflict of interest. Hence, I must still look to the existence of prejudice to determine if defendant was deprived of his constitutional right to the effective assistance of counsel. Assuming arguendo that counsel’s representation could be deemed as a conflict of interest per se, defendant was in fact advised that counsel had pending disciplinary charges before the Attorney Registration and Disciplinary Commission, and the defendant persisted in his desire to be represented by Mr. Levin. Defendant signed an acknowledgement form which set forth Mr. Levin’s problem with ARDC wherein he agreed nevertheless to retain Mr. Levin as his defense attorney. Specifically the acknowledgement stated:

“ACKNOWLEDGEMENT

I, James Washington, acknowledge that I wish to retain SHERWOOD L. LEVIN for a criminal case I now have pending.

I have been advised by said SHERWOOD L. LEVIN that he has disciplinary charges pending and knowing that it is still my desire that he represent me in this matter.

DATED: August 1,1986

(Signature)”

The following colloquy occurred in the presence of the defendant:

“MR. LEVIN [Defense attorney]: Judge, I’m told, as I indicated to the Court, I thought there was a written waiver in the court file.

THE COURT: Okay. Record should reflect that I talked to Counsel concerning some ARDC problems that he may be having, and he has indicated that his client is aware of that and there’s a waiver, is that right, Mr. Washington?

THE DEFENDANT: Yes.

MR. LEVIN: I again talked "with him, Judge, and he's indicated to me he wishes to proceed today with my representing him, and wishes to persist in his waiver of a jury trial.

THE COURT: And if I recall right, none of the problems that you are having or were having had anything to do with ability.

MR. LEVIN: That’s correct, your Honor.

THE COURT: Or competency to handle matters, okay? Mr. Washington, your desire is still the same in relation to a jury? In other words, you are still giving up your right to a jury trial?

THE DEFENDANT: Yes, sir, your Honor.

THE COURT: Okay. Jury waiver received.”

While the defendant was informed of the disciplinary matter, it is not clear from the record that defendant knowingly and intelligently waived his right to a conflict-free lawyer. Neither the written acknowledgement nor the explanation given by the trial court guides the defendant in comprehending why there could be a conflict of interest. Moreover, the trial court did not explain the significance of the conflict and its potential impact on the attorney’s representation. (Olinger, 112 Ill. 2d 324, 493 N.E.2d 579.) Additionally, the record is devoid of any evidence that would support an argument that the trial court considered defendant’s background, conduct and experience in its determination as to whether or not an intelligent waiver occurred. See Washington, 101 Ill. 2d at 114; Johnson v. Zerbst (1938), 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019.

In Olinger the Illinois Supreme Court stated that “[a] defendant will not be deemed to have waived a conflict unless he is admonished as to the existence of the conflict and its significance.” (Olinger, 112 Ill. 2d at 339.) There the trial court tendered transcripts of tape-recorded evidence to be used against the attorney after it advised defendant of an investigation of his attorney which conceivably could lead to a conflict of interest and criminal charges. Such an extensive undertaking by the court did not occur in the instant case. In light of the foregoing, I agree that we are unable to conclude that defendant knowingly and intelligently waived his right to a conflict-free attorney.

Consequently, assuming arguendo that a per se conflict of interest existed, I would agree with the majority that an examination of defendant’s waiver reveals that the waiver was inadequate. However, because it is my view that no conflict per se existed, I do not agree that we need look at the waiver, but rather we are only required to make a determination of whether the attorney’s specific performance was so deficient as to result in prejudice, thereby depriving defendant of his constitutional right to effective assistance of counsel.

Initially, defendant complains of the failure of his attorney to pursue a line of questioning on cross-examination relating to complainant’s sexual activities on the evening in question with persons other than himself. He postulates that had such questioning occurred it could have provided an explanation for the presence of semen and spermatozoa in her vagina. He opines that such interrogation would not have been barred by the rape shield law. (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 7.) It is his view that the rape shield- law only precludes as evidence prior sexual activity. The prosecution, however, disagrees as it argues that the rape shield law does apply and also that the decision not to cross-examine plaintiff on this issue may have been simply trial strategy.

While I decline at this time to consider whether the rape shield law applies, I do not consider it necessary to do so. I agree with the State that the decision not to conduct the kind of cross-examination now suggested in retrospect by the defendant can be viewed as trial strategy. There appears nothing in the record to suggest that counsel knew he would get a favorable response from such questioning. It is a matter of sound trial practice not to ask questions if you are unsure of what the answer might be. Hence, I cannot say that counsel’s failure to pursue such questioning was not a sound trial strategy. The tactic that counsel pursued instead was to argue inferences in his closing argument:

“MR. LEVIN [Defense counsel]: I would submit to the Court that although the laboratory ultimately found the presence of semen in the vaginal area of [the victim], there is nothing, your Honor, that links that semen to this defendant.

I would [state] to the Court that she is more than likely having a relationship with [P.S.] who was her live in boyfriend. That there is a likelihood that she has on occasions close in time to the incident had sexual relations with him. She’s also, I would submit to the Court, a prostitute. There is nothing, your Honor, that singles out James Washington as having been the person who deposited the semen found in her vagina as opposed to any other person.”

Additionally, defendant contends that his lawyer’s representation was deficient as a result of his failure to introduce into evidence medical records which documented his disability in his left hand. It is axiomatic that one cannot expect to receive perfect representation nor does the constitution require it. (People v. Blommaert (1989), 184 Ill. App. 3d 1065, 1075, 541 N.E.2d 144; People v. Jackson (1986), 145 Ill. App. 3d 789, 795, 495 N.E.2d 1359.) While medical records might have provided corroboration of defendant’s disability, the trial court had an opportunity to see the defendant’s use or nonuse of his left hand and by his remark was convinced that the defendant had a disability. The defendant maintained that he lacked the physical strength in his left hand to “hold a knife” or “swing a bottle” as alleged by P.S. and the victim. The trial court expressed concern with the evidence presented regarding defendant’s disability by stating that “there is no question about the fact that the defendant has a problem with his left hand. Whether its anywhere near as serious as he indicates, I doubt it. But he does have some kind of problem with his left hand. And he does have a hand that apparently cannot be opened all the way.” While medical records, if they existed, may have tended to corroborate the defendant’s claim of lack of strength, I cannot say that counsel’s failure to introduce such records rises to the level of incompetency, nor do I find that the absence of such evidence substantially prejudiced the defendant. Defendant displayed his inability to open his hand more than two-thirds of the way, demonstrating that his fingers were unable to bend; showed that while he could hold a styrofoam cup with the left hand, he was unable to lift it, and provided the court with an explanation of the paralysis. Moreover, even if counsel’s failure to provide such evidence can be deemed an error in judgment, no prejudice resulted since the court found that the State’s witness, P.S., corroborated the defendant’s explanation of his infirmity. The court found that the paralysis in the defendant’s left hand provided an explanation to P.S.’s testimony on behalf of the prosecution that defendant’s friends had switched the knife out of defendant’s left hand while he and P.S. were fighting.

Defendant also asserts that his ineffective assistance of counsel claim is further supported by defense counsel’s rambling cross-examination, indicating a failure by counsel to conduct a pretrial investigation. As the majority points out, defendant’s assertion is not supported by the record. The record indicates that the trial judge commented on defense counsel’s “extensive job” of cross-examining the complainant, witnesses and police officers even though “little impeachment” resulted. Defendant did not identify any specific examples of rambling and a review of defense counsel’s cross-examination does not support defendant’s contention in that connection.

It is my view that while the defendant may not have knowingly waived his right to a conflict-free lawyer, he is required to show that he was prejudiced thereby in order to substantiate his claim that he was deprived of the effective assistance of counsel. In light of the foregoing analysis, I see no prejudice suffered by the defendant as a result of Mr. Levin’s representation. The record reflects that counsel vigorously examined and cross-examined the witnesses, argued extensively and pointed out conflicting and inconsistent testimony, and generally provided adversarial representation. As pointed out earlier, this case was a one-defendant bench trial which had no complex issues. I do not find a reasonable doubt that the results of the proceedings would have been different but for defense counsel’s failure to question the victim about sex with others on the night of May 30, 1986, or his failure to introduce medical records relating to defendant’s disability, as required by People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246; see also Strickland, v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. In reviewing the record as a whole it is my view that defendant was given adequate representation.

Defendant next contends that he was not proven guilty of aggravated criminal sexual assault beyond a reasonable doubt where the testimony of the complainant was neither clear and convincing nor corroborated. Defendant argues that the testimony of the State’s witnesses was riddled with inconsistent, illogical and confused facts and the tale which was woven by the two witnesses was so ludicrous as to be totally unbelievable.

In order to find defendant guilty of aggravated criminal sexual assault, the trier of fact must find that the accused committed an act of sexual penetration by the use of force or threat of force, and that he caused the victim bodily harm or displayed, threatened to use, or used, a dangerous weapon. (People v. Tanner (1986), 142 Ill. App. 3d 165, 168, 491 N.E.2d 776.) The trier of fact is in a superior position to observe the demeanor of the witnesses (People v. Dixon (1985), 133 Ill. App. 3d 1073, 1081, 480 N.E.2d 128), and the credibility of the witnesses is a matter for the trier of fact. People v. Jackson (1973), 54 Ill. 2d 143, 149, 295 N.E.2d 462; Dixon, 133 Ill. App. 3d at 1082; People v. Baker (1979), 78 Ill. App. 3d 411, 416, 396 N.E.2d 1174; People v. Mendoza (1978), 62 Ill. App. 3d 609, 615, 378 N.E.2d 1318.

In the instant case, the resolution of defendant’s guilt depended upon the credibility of the witnesses and the weight to be accorded to their testimony. Such determinations are within the province of the trial court. I would note that while there are minor inconsistencies in the testimony of the witnesses regarding collateral or insignificant facts, most of the testimony is corroborated by each witness’ statements. Some of the discrepancies complained of include complainant’s testimony that the bed was queen-sized and P.S.’s testimony that the bed was twin or “less than full” size; whether the apartment was or was not seen before the $30 was paid; and whether complainant was menstruating. I consider these first two discrepancies to be minor details irrelevant to the issue of whether or not on May 30, 1986, defendant followed complainant to the bathroom and forced her to have oral and vaginal sex. With respect to whether complainant was menstruating on May 30, I find no evidence in the record to support that assertion. The stipulation entered into regarding Dr. Gordon’s testimony was as follows: “that he examined [complainant] and found her to be in the late stage of her menstrual cycle.” I would take judicial notice of the scientific fact that the menstrual cycle of a female is 28 days. There is nothing contained in the stipulation that Dr. Gordon found the complainant to be menstruating. In any event I find this discrepancy to be likewise irrelevant to the central issue of whether defendant forced complainant to have sex with him.

On the other hand, complainant testified to many facts which were corroborated by P.S.’s testimony, Detective Utter’s testimony or the medical stipulation. For instance, complainant described the sequence of events in the bathroom wherein defendant allegedly entered her orally and vaginally, but that he did not ejaculate in her mouth. The evidence presented at trial was that an oral smear and a vaginal smear were taken and the oral smear was negative but the vaginal smear was positive for semen and spermatozoa. She also testified to being struck in the head with a bottle and to being stabbed by the broken bottle. During the doctor’s examination of her, he observed a puncture wound on the left side of her back and a laceration to her head with accompanying swelling. This was also observed by Detective Utter and by P.S. P.S. testified that the defendant tore his pants pocket during the struggle to retrieve the apartment key. Detective Utter testified that he observed that P.S.’s trouser pocket was torn.

Additionally, complainant immediately informed P.S. about the sexual attack and promptly notified the police. We have previously held that a prompt complaint to the police of a rape is sufficient corroboration of a complainant’s testimony.

On this issue defendant complains that the trial court’s reluctance to convict on the evidence presented is further evidence of the insufficiency of the evidence. It is true that the trial court commented about the high level of intoxication as it related to the witnesses’ ability to observe or remember. However, the record reveals that its concerns were satisfied by Detective Utter’s testimony that the witnesses provided a coherent account of what took place. While the court also remarked that the police did a “shoddy job,” nowhere in this record does the court ever express any doubt of the defendant’s guilt. The record reflects that the trial court took its time and very conscientiously and meticulously examined all of the evidence and made extensive findings of fact. He specifically stated:

“When I heard the witness as I indicated before, I found that she was a credible witness and I found that the witness, [P.S.], was also in that category, and I didn’t believe the defendant.”

I, therefore, agree with the majority that the evidence adduced at trial was sufficient for the trier of fact to conclude that the defendant was guilty beyond a reasonable doubt.

Defendant’s final contention is that the trial court considered improper factors in determining defendant’s guilt. He specifically maintains that the judge considered several matters outside the trial record in reaching his decision. He posits that the court, at the end of closing arguments, elicited defense counsel to speculate about the motivation prompting the complainant and witness to testify against defendant. Defendant refers to the court’s questioning of counsel as his own private investigation. In support of his contention he cites People v. Harris (1974), 57 Ill. 2d 228, 314 N.E.2d 465, and People v. Nelson (1974), 58 Ill. 2d 61, 317 N.E.2d 31. Defendant’s reliance on each of these cases is misplaced.

In Harris, the court sought to ascertain whether the alibi presented was the same in an earlier trial. In so doing the court there asked the defense counsel what defendants had told him (or his office) on a prior occasion. The trial court found defendants guilty when defense counsel was unable to corroborate defendants’ alibi testimony. I find Harris to be clearly distinguishable from the case at bar as the court there was actually seeking to learn about evidence elicited in another proceeding, part of another record. In the instant case, it is clear that the court was simply trying to comprehend the defendant’s theory. Furthermore, there is nothing contained in this record which suggests that the court used the theory advanced by Mr. Levin in determining defendant’s guilt.

In Nelson, it was alleged that the court had engaged in two fact-finding conferences in his chambers in an ex parte meeting with only the State’s Attorney. In the instant case, the trial court’s questions were propounded in open court to defense counsel in defendant’s presence. We have previously sanctioned inquiries of trial counsel for purposes of clarifying material issues in a case. (People v. Jackson (1975), 31 Ill. App. 3d 244, 333 N.E.2d 652.) I view the court’s actions in that light. At the very most, the trial judge’s conduct was harmless. Defendant has failed to demonstrate in what manner he was prejudiced.

Defendant also contends that the trial court, by its statement that defendant “had no way to account for the puncture wound in the back of the victim,” shifted the burden of proof to the defendant. I view that comment as simply a pointing out that the defendant had attempted to provide an explanation regarding all of the evidence, but that he failed as to that particular evidence. In any event I discern no prejudice to the defendant by virtue of the comment.

The defendant’s final complaint regarding the court’s improper use of factors relates to the court’s comment of the complainant’s cooperation. He contends that the court based its finding of guilt on her cooperation in prosecuting defendant despite the fact that she had previously failed to appear and a rule to show cause was issued. The court’s comments, however, clearly reflect that it was fully aware that initially she did fail to appear. It commented that the State had problems getting her to appear at the outset, but that when she did begin to appear she did so steadily and unfailingly. It is proper for the trial court to comment on the possible bias or interest a witness may have in testifying. Brown, 32 Ill. App. 3d 182.

I have determined that the record reflects that the trial court considered only competent evidence in finding defendant guilty.

Accordingly, for all of the foregoing reasons, I would affirm the judgment of the trial court finding defendant guilty of aggravated criminal sexual assault.