text:
    THOMAS BLAZIER, Plaintiff-Appellant, v. ST. CLAIR COUNTY, Defendant-Appellee.
    Fifth District
    No. 5-89-0795
    Opinion filed March 7, 1991.

      Thomas A. LeChien, of LeChien & Associates, Ltd., of Belleville, for appellant.
    John Baricevic, State’s Attorney, of Belleville, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

This is an appeal from an order of the trial court affirming the decision of the County Board of St. Clair County (County Board), denying Thomas Blazier’s application for a special use permit. Plaintiff appeals the circuit court’s decision, raising the following issues: (1) whether the trial court abused its discretion in denying Blazier’s requested relief; (2) whether the court’s order is against the manifest weight of the evidence; and (3) whether the actions of the St. Clair County Zoning Board of Appeals (Zoning Board) and the County Board were an arbitrary and unreasonable exercise of the legislative power. We affirm.

In 1976, Blazier built a two-story, 3,800-square-foot residence at 30 Richard Place, Belleville, Illinois. The residence is located at the end of Richard Place, which is a dead-end street. The structure was built as a single-family residence as the zoning district in which it was built has been zoned “SR-4 single family residence” since 1969. In July 1988, Blazier submitted a petition for a special use permit. At the hearing before the Zoning Board of Appeals, an area map was admitted into evidence. According to that map, and the testimony of plaintiff’s attorney, there are four duplexes in the nearby subdivision of Sunset Hills, which is a few streets over from Richard Place. On Eiler Road, approximately a half mile from the Richard Place-Eiler Road intersection, there are a home and a mobile home on one lot. Plaintiff’s attorney also testified that on the lot immediately adjacent to the subject property, there is a structure being utilized as a two-family residence. There is also a duplex at the corner of Richard Place and Eiler Road, which faces Eiler Road, but has a side entrance on Richard Place.

County Board member Edward Anderson testified that the four duplexes located in the nearby neighborhood to which plaintiff referred are part of a subdivision which was laid out some years ago and a certain part of that area was designated for duplexes. With regard to the mobile homes in and around the area in question, Anderson testified that until recently there were no ordinances to prevent the many uses of mobile homes.

Kenneth Kujawa, a resident of Richard Place, presented an objector’s petition which was admitted into evidence. The petition, purportedly signed by 19 residents of Richard Place, states that the signatories “are opposed to the granting of a Special Permit to convert an existing structure into a duplex in a ‘SR-4’, Single Family Residence Zone District at 32 [sic] Richard PI., Belleville, II.” Kujawa testified that the main reason the residents are opposed to the granting of a special use permit is:

“[B]ecause of the traffic flow which comes through there. It’s a dead-end street. I believe the speed limit is — it’s not posted. Little children — I have two children myself *** we have two handicapped children who live on the street *** going to the end of the street, there’s no where to turn around and flying back out of there.”

Greg Binder, a member of the Signal Hill fire department, voiced his personal objection to the special use permit. Binder testified that, “the fires that we have had *** we had no way to turn the apparatus around down there. There maybe a couple more cars down there. It may make it difficult for something like that. We can get the apparatus in and get the job done, but getting out may be a different story.”

Following the hearing the Zoning Board denied Blazier’s application for a special use permit based upon the following findings:

“[T]he proposed use would not be compatible to the area which is mainly single family residences; this would not be the highest and best use for the subject property; granting this request would set a precedent; and there were many objectors present at the hearing including County Board Member, Edward Anderson.”

The County Board concurred with the Zoning Board’s findings and recommendations.

At the hearing on Blazier’s complaint for administrative review, he was permitted to present additional evidence to the court in the nature of the testimony of two witnesses who did not testify before the Zoning Board. The defendant did not object to the admission of such evidence. We point out that section 3 — 110 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110) provides that on administrative review, “[n]o new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court.” Section 3— Ill(a)(7) provides that the circuit court may remand the cause to the administrative agency for the taking of additional evidence. (Ill. Rev. Stat. 1989, ch. 110, par. 3 — Ill.) As the circuit court may not entertain additional evidence or conduct a hearing de novo (Zbiegien v. Department of Labor (1987), 156 Ill. App. 3d 395, 398-99, 510 N.E.2d 422, 425), we will confine our decision to an examination of the evidence presented before the Zoning Board.

The trial court entered an order affirming the denial of Blazier’s special use permit, ruling that the

“findings and order of the Zoning Board of Appeals and the subsequent resolution by the County Board in 88 — 49—SP concerning property owned by the Plaintiff on Richard Place, Belleville, Illinois bear a relationship to the public health, safety and welfare, were not arbitrary and do not constitute an unreasonable exercise of legislative power.”

Defendant contends that the trial court’s decision was an abuse of discretion and is contrary to the manifest weight of the evidence. A zoning ordinance will be upheld if it bears any substantial relationship to the public health, safety, comfort or welfare. (La Grange State Bank v. County of Cook (1979), 75 Ill. 2d 301, 307-08, 388 N.E.2d 388, 392, citing Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 179-80, 354 N.E.2d 899, 903.) The plaintiff must establish by clear and convincing evidence that the existing ordinance, as applied to his property, is arbitrary and unreasonable and without substantial relation to the public health, safety, comfort, morals or general welfare. Bennett v. City of Chicago (1962), 24 Ill. 2d 270, 273-74, 181 N.E.2d 96, 98.

The supreme court listed six factors to be considered in determining the validity of an ordinance and the reasonableness of a proposed use: (1) the existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public; (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner; (5) the suitability of the subject property for the zoned purposes; and (6) the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47, 145 N.E.2d 65, 69.) Applying these factors to the case at bar, we find that the circuit court did not abuse its discretion and, furthermore, that the circuit court’s decision is not contrary to the manifest weight of the evidence.

As for the first factor, we must consider whether the restrictions imposed on the property are in conformity with the uses and zoning of nearby property. While Blazier presented evidence as to the existence of duplexes and mobile homes within the vicinity of the property in question, there was evidence presented that the nearby duplexes were built in a subdivision which was originally planned to include an area designated for duplexes. Likewise, with regard to the mobile homes, there was testimony that until recently there were no ordinances to preclude mobile homes. Notwithstanding plaintiff’s testimony that the residence immediately adjacent to his property is currently being used by two families, there was no evidence presented that such multifamily use was sanctioned by the County Board. Zoning must begin and end somewhere. (Amalgamated Trust & Savings Bank v. County of Cook (1980), 82 Ill. App. 3d 370, 382, 402 N.E.2d 719, 727.) The existing zoning of nearby property is clearly single-family residential. Even though there are duplexes and mobile homes in neighboring subdivisions, that does not conclusively prove that the single-family zoning ordinance in question here is unreasonable as applied to Blazier’s property.

Turning to the second, third and fourth criteria of LaSalle, we note that the fact that the property in question may be more valuable if zoned for multi-unit use is not decisive on the question of whether the current zoning ordinance is valid. This fact exists in nearly every case where the intensity with which property may be used is restrained by zoning laws. (People ex rel. Alco Deree Co. v. City of Chicago (1954), 2 Ill. 2d 350, 358, 118 N.E.2d 20, 25.) At the hearing before the Zoning Board, Blazier testified that he neither lived at the residence in question, nor did he plan to live there. When questioned as to what hardship Blazier would have to bear if County Board denied the special use permit, Blazier’s attorney testified that “this particular neighborhood would not bring the sum of money which would be consistent with that size structure.” This is not a case where the plaintiff is unable to use the property profitably. According to the evidence, plaintiff’s only hardship is that he is unable to realize as great a profit as he would like. (Amalgamated, 82 Ill. App. 3d 370, 384, 402 N.E.2d 719, 728.) In addition, we note that Blazier developed the subject property with full knowledge of the preexisting zoning classification. While this fact is not conclusive, it does have a bearing on plaintiff’s claim. Cosmopolitan National Bank v. Village of Northbrook (1985), 138 Ill. App. 3d 967, 974, 487 N.E.2d 55, 60.

The neighbors objected to the special use permit because of the additional traffic and expressed special concern about the safety of the children who live on Richard Place. Density is a legitimate concern in a zoning case and an adequate basis for classification. (Amalgamated, 82 Ill. App. 3d 370, 383, 402 N.E.2d 719, 728.) Testimony by a member of the Signal Hill fire department established the concern of the fire department about its ability to maneuver equipment on Richard Place. While the general increase in traffic may not be great in this case, the creation of a particular traffic problem connected to a particular use at a particular location could in and of itself be a sufficient reason for the denial of that use at that location. (Haws v. Village of Hinsdale (1979), 68 Ill. App. 3d 226, 232, 386 N.E.2d 122, 126.) Based on the foregoing, we cannot conclude that the hardship to the plaintiff outweighs the benefits to the community.

Regarding the fifth La Salle criterion, Blazier contends that utilizing the residence as a duplex would be the highest and best use of the subject property. However, there is no evidence that the property is unsuitable for use as a single-family residence. The only showing that utilizing the property as a duplex would be the best and highest use is that plaintiff would reap more of a profit than if the property remains zoned single-family residential, and this is not an overriding concern, particularly when plaintiff was aware of the zoning restriction at the time the building was erected.

As to the final factor, the length of time the property has been vacant, there was evidence at the hearing that the residence was rented as a single-family home up until a few months prior to the hearing before the Zoning Board. A party relying on the length of time its property has been vacant must establish that the property is unsaleable, vacant or undeveloped because of the zoning classification. (Cosmopolitan National Bank, 138 Ill. App. 3d 967, 975, 487 N.E.2d 55, 60.) Plaintiff failed to establish that the property was unsaleable, vacant or undeveloped because of its zoning classification.

We find that plaintiff has not sustained his burden of proving that the zoning classification as applied to the subject property is arbitrary and unreasonable, and without substantial .relation to the public health, safety, comfort, morals or general welfare. After examining the record, we conclude that the trial court did not abuse its discretion, and its decision was not against the manifest weight of the evidence.

Our resolution of this case is not settled, however, as we must address the final issue raised by the plaintiff: whether the actions of the Zoning Board and the County Board were an arbitrary and unreasonable exercise of the legislative power. Plaintiff contends that the reasons given by the Zoning Board and the County Board for denying his special use permit are not legitimate reasons as authorized by the St. Clair County zoning ordinance. Pertinent portions of the applicable zoning ordinance are as follows:

“42.71 GENERAL. The County Board may, in accordance with the procedure set forth in this article, grant special permits and use variances from the provisions of the regulations of this Code ***.”
“42.02 DECLARATION OF PURPOSE. It is the purpose of this Code:
(a) To promote and protect the public health, safety, morals, comfort and general welfare of the people.
* * *
(c) To protect the character and the stability of the residential, business and manufacturing areas within the County and to
promote the orderly and beneficial development of such areas.
***
(e) To regulate the intensity of use of lot areas ***.
* * *
(h) To prohibit uses, buildings, or structures incompatible with the character of development or intended uses within specified zoning districts.”

While the reasons given for denying the permit may not be as expressly stated as the standards in the zoning ordinance, particularly the reference to the presence of a County Board member at the hearings, they are in sufficient compliance to preclude a finding of an arbitrary exercise of power. This is especially true when the findings are amply supported by the evidence. The decision of the Zoning Board and the County Board, as affirmed by the trial court, is supported by the evidence.

The judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

WELCH and HOWERTON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LEWIS

license: Public Domain

text:
    VIRGINIA RULISON WEBER, Plaintiff-Appellant, v. AMIEL CUETO, Defendant-Appellee (Marvin Darling, Defendant).
    Fifth District
    No. 5-89-0802
    Opinion filed March 8, 1991.

      David M. Duree, of O’Fallon, and Robert L. Carter, of Leritz, Reinert & Duree, P.C., of St. Louis,.Missouri, for appellant.
    Heyl, Royster, Voelker & Allen, of Peoria (Karen L. Kendall and Adrian E. Harless, of counsel), for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

This appeal arises out of the trial court’s dismissal with prejudice of the first amended complaint of the plaintiff, Virginia Rulison Weber, against the defendants, Amiel Cueto and Marvin Darling. The trial court made an express finding that there was no just reason for delaying enforcement or appeal, and the plaintiff appealed pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). Stating generally that her appeal raises the question whether her first amended complaint states a cause of action for defamation against the defendant Cueto, the plaintiff presents the following eight issues for our review:

“(1) Does the First Amended Complaint state a cause of action against Defendant Amiel Cueto?
(2) Is the Madison County Board a quasi-judicial body?
(3) Was the publication of the five page letter to the twenty-nine members of the Madison County Board absolutely privileged?
(4) Does the publication of the five page letter to the newspapers prevent the establishment of any alleged absolute privilege to publish the letter to the twenty-nine members of the Madison County Board?
(5) Is the charge of fornication constitutionally protected as a statement of opinion?
(6) Are the charges of the Class 3 felonies of conspiracy and official misconduct constitutionally protected statements of opinion?
(7) Are the charges of the Class 3 felonies of fraud and the systematic theft of tens of thousands of dollars from the Madison County Treasury constitutionally protected statements of opinion?
(8) Are the charges of the Class 3 felonies of forgery, intimidation, subordination [sic] of perjury and communicating a threat to a witness constitutionally protected statements of opinion?”

This lawsuit was precipitated by a five-page letter dated January 14, 1983, and written by the defendant Cueto concerning primarily the conduct of Donald Weber, who was at that time the State’s Attorney of Madison County. The letter discussed, in part, conduct of both Donald Weber and Virginia Rulison, an employee in Donald Weber’s office in his capacity as State’s Attorney. Since the writing of the letter Virginia Rulison, who is not an attorney, has become Virginia Rulison Weber. The letter was addressed to the Honorable Andreas Matoesian as the Chief Circuit Judge of Madison County and is attached to the plaintiff’s complaint and first amended complaint and incorporated therein by reference. The letter begins as follows:

“The Illinois Code of Professional Responsibility, Rule 1 — 103, imposes upon all members of the Illinois Bar the rigid duty to report: ‘unprivileged knowledge of a violation of Rule 1— 102(a)(3) or (4)’. Rule 1 — 102(a)(3) provides: ‘A lawyer shall not engage in conduct involving moral turpitude’. Rule 1 — 102(a)(4) provides: ‘A lawyer shall not engage in conduct involving dishonesty, fraud, deceipt [sic] or misrepresentation’. The Code further provides that the reporting lawyer must: ‘report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation’.
I have recently obtained knowledge of numerous such violations allegedly committed by Donald Weber, the State’s Attorney of Madison County. The Code is rather vague as to the ‘tribunal or other authority’ to which the report must be made. Therefore, in order to ensure that I am not remiss in my duty as required by the Code of Professional Responsibility, I am making this report to three distinct ‘authorities’ or ‘tribunals’ as listed below. Each such tribunal or authority is empowered ■to investigate or act on the reports, as indicated.
HONORABLE ANDREAS MATOESIAN: Judge Matoesian is the Chief Circuit Judge of Madison County. Because the alleged violations include at least seven indictable offenses and because the subject of the report is the State’s Attorney of Madison County, I believe that the Code requires a report to Judge Matoesian. As I understand it, the Chief Judge then appoints the Illinois Attorney General to investigate.
MADISON COUNTY BOARD: Because the alleged violations include the theft, fraudulent misuse, or improper use of Madison County funds; [sic] I believe the Code requires a report to that tribunal. The Board can then decide what action to take with respect to the State’s Attorney’s budget appropriation.
DISCIPLINARY COMMISSION: Because the alleged violations include numerous violations of the Code of Professional Responsibility, I believe the Code requires a report to that tribunal.
BACKGROUND INFORMATION
I must state at the outset that I have no direct, personal knowledge of any of the following information (except as to the allegations contained in the lawsuit Cook v. Frey, Weber, and Globe Democrat Publishing Company, 81 — L—915, presently pending in St. Clair County). All information is based on what was told to me in my office on January 5, 1983[,] by a Mr. Marvin Darling [who is the other defendant herein]. Mr. Darling was the administrative assistant in the State’s Attorney’s Office for the first two years of Mr. Weber’s term. Weber fired him in December, 1982. Prior to Weber’s election in 1980, Mr. Darling served as the administrator in the City of Collinsville, over the department which Weber supervised as Collinsville commissioner. Weber and Darling had been close, personal friends for many, many years. As Weber’s long-time best friend and confidant, as the administrator who ran Weber's office, Mr. Darling’s information can only be seen as credible, truthful, and devastating.”

On January 11, 1984, the plaintiff filed her complaint. In her first amended complaint, filed on January 26, 1987, the plaintiff alleged that the “[defendants caused this letter to be published to the Presiding Judge of the Circuit Court for Madison County, Illinois, all 29 members of the Madison County Board, the Illinois Attorney Registration and Disciplinary Commission, and various newspapers circulated generally in Madison County, Illinois.” In a supplemental motion to dismiss filed on July 11, 1989, pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619), the defendant Cueto said that his “statements were privileged on the basis that they were made pursuant to Defendant’s ethical obligations as an attorney to report misconduct to a tribunal or authority,” and that they are, therefore, not actionable. The defendant Cueto said further in the motion that the “statements were made to only judicial and quasi-judicial bodies.”

In an order entered November 23, 1989, the trial court considered the defendant Cueto’s supplemental motion to dismiss, stating that the sole issue before it “is whether the publication of the letter by Defendant, Cueto, is entitled to an absolute privilege, which bars the Plaintiff’s cause of action.” The trial court concluded that the publication of the letter to the Attorney Registration and Disciplinary Commission (hereafter referred to as ‘ARDC’), to the chief judge of the Third Judicial Circuit, and to the Madison County Board was absolutely privileged. The trial court determined that the Madison County Board is “clearly a quasi-judicial/legislative body” to which an absolute privilege attaches. Therefore, the trial court allowed the defendant Cueto’s motion, dismissing all counts against him with prejudice. Noting that it still had under advisement various motions filed by the defendant Darling, the trial court stated in the order that it would rule on them at a later date and found that, with respect to the dismissal of those counts directed against the defendant Cueto, there was no just reason for delaying enforcement or appeal. In its order the trial court did not address the plaintiff’s allegation concerning publication of the letter to various newspapers circulated generally in Madison County, Illinois.

In her brief plaintiff raises no issue concerning the trial court’s determination that the publication of the letter to the Chief Judge and to the ARDC was absolutely privileged, and we, therefore, do not consider any question relating to absolute privilege with respect to the communication to the chief judge or to the ARDC. Plaintiff does, however, assert that the publication of the letter to the members of the Madison County Board was not absolutely privileged, and we turn to that issue.

An absolutely privileged communication is one in respect of which, by reason of the occasion on which or the matter in reference to which it is made, no remedy can be had in a civil action. (Cook v. East Shore Newspapers, Inc. (1945), 327 Ill. App. 559, 64 N.E.2d 751.) A communication is absolutely privileged when its propagation is so much in the public interest that the publisher should speak fully and fearlessly. (American Pet Motels, Inc. v. Chicago Veterinary Medical Association (1982), 106 Ill. App. 3d 626, 435 N.E.2d 1297.) As a matter of public policy certain types of defamatory statements are deemed privileged so that the person making the statement will not be deterred from speaking by the threat of civil liability. (Starnes v. International Harvester Co. (1986), 141 Ill. App. 3d 652, 490 N.E.2d 1062.) When absolute privilege is granted, no cause of action for defamation lies against the person making the statement even if it is made with malice. (Starnes, 141 Ill. App. 3d 652, 490 N.E.2d 1062.) The defense of absolute privilege has been described as resting upon the idea that conduct which otherwise would be actionable is to escape liability because the defendant is acting in furtherance of some interest of social importance that is entitled to protection even at the expense of uncompensated harm to the plaintiff’s reputation. (Weiler v. Stern (1978), 67 Ill. App. 3d 179, 384 N.E.2d 762.) The privilege is “ ‘based upon a policy which regards the ends to be gained by permitting such statements as outweighing the harm which may be done to the reputation of others.’ Restatement of Torts, Introductory Note to tit. B, ch. 25 (1938); see also Cook v. East Shore Newspaper, Inc. (1945), 327 Ill. App. 559, 64 N.E.2d 751.” Weiler, 67 Ill. App. 3d at 181, 384 N.E.2d at 763.

The class of absolutely privileged communications is narrow and is practically limited to legislative and judicial proceedings and other acts of State, including communications made in the discharge of a duty under express authority of law. (Larson v. Doner (1961), 32 Ill. App. 2d 471, 178 N.E.2d 399; Cook, 327 Ill. App. 559, 64 N.E.2d 751.) The Restatement (Second) of Torts section 592A (1977) provides that “[o]ne who is required by law to publish defamatory matter is absolutely privileged to publish it.” The comment to section 592A states that the rule provided therein “will apply whenever the one who publishes the defamatory matter acts under legal compulsion in so doing.” Restatement (Second) of Torts §592A, Comment at 258 (1977).

Disciplinary Rule 1 — 101(a) of the Code of Professional Responsibility (87 Ill. 2d R. 1 — 101(a)) provides that “[a] lawyer is subject to discipline for the violation of the disciplinary rules of the Code of Professional Responsibility as hereinafter set forth.” Disciplinary Rule 1-102 (87 Ill. 2d R. 1-102) states:

“(a) A lawyer shall not
(1) violate a disciplinary rule;
(2) circumvent a disciplinary rule through actions of another;
(3) engage in illegal conduct involving moral turpitude;
(4) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; or,
(5) engage in conduct that is prejudicial to the administration of justice.”

Disciplinary Rule 1 — 103 (87 Ill. 2d R. 1 — 103) provides in part as follows:

“(a) A lawyer possessing unprivileged knowledge of a violation of Rule 1 — 102(a)(3) or (4) shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.”

These three disciplinary rules became effective July 1, 1980, and were in effect at the time the letter precipitating the instant suit was received. We note that, effective August 1, 1990, the supreme court of Illinois repealed the Code of Professional Responsibility and replaced it with the Illinois Rules of Professional Conduct (134 Ill. 2d Article VIII).

The Committee Commentary concerning these three disciplinary rules (87 Ill. 2d Rules 1 — 101, 1 — 102, 1 — 103, Committee Commentary, at 509) states in part, “Rule 1 — 101(a) makes explicit the mandatory nature of the disciplinary rules; their violation subjects the lawyer to disciplinary sanctions.” These disciplinary rules are rides promulgated by the supreme court of Illinois. As was recently noted by the supreme court in In re Himmel (1988), 125 Ill. 2d 531, 533 N.E.2d 790, a lawyer, as an officer of the court, is duty-bound to uphold the rules in the Code of Professional Responsibility. Under Disciplinary Rule 1 — 103 a lawyer has the duty to report the misconduct of other lawyers. (In re Anglin (1988), 122 Ill. 2d 531, 524 N.E.2d 550.) If a lawyer violates the rule on reporting misconduct, imposition of discipline for such a breach of duty is mandated. See Himmel, 125 Ill. 2d 531, 533 N.E.2d 790.

We find instructive to some extent certain cases outside of Illinois in which a communication, alleged to be libelous, has been compelled by law or asserted by a defendant to have been so compelled. In Harrison v. Nationwide Mutual Fire Insurance Co. (E.D. Pa. 1983), 580 F. Supp. 133, the plaintiff sought compensatory and punitive damages for alleged libels and slanders relating to the defendant insurer’s denial of benefits for loss arising from a fire. Under the “Unfair Insurance Practices Act” of Pennsylvania (Pa. Stat. Ann. tit. 40, §1171.5(a)(10)(xiv) (Purdon 1982)) the insurance company was obligated to explain the basis for denial of a claim. The court looked to section 592A of the Restatement (Second) of Torts in determining the communication complained of absolutely privileged. In Newman v. Legal Services Corp. (D.C. Cir. 1986), 628 F. Supp. 535, 543, the court held that dissemination of statements pursuant to the Freedom of Information Act (5 U.S.C. §552(a)(3) (1982)) was absolutely privileged, stating, “Absent an applicable exception, the government must provide the requested documents. Because defendants were required to produce the document, that production maintains absolute immunity.” In Johnson v. Dirkswager (Minn. 1982), 315 N.W.2d 215, the supreme court of Minnesota held that, where the defamatory material appeared in a letter terminating an employee, an absolute privilege prevailed, in part because the defendant representative of the government was required by law, pursuant to the mandate of the Data Privacy Act (Minn. Stat. §§15.162 — .1671 (1978)), to disclose the defamatory material. In so ruling the court relied on section 592A of the Restatement (Second) of Torts.

In Miller v. Lear Siegler, Inc. (D. Kan. 1981), 525 F. Supp. 46, the defendant argued that the statements at issue were protected by an absolute privilege against an action for libel because they were required by the Federal securities laws. The court concluded that “when a statement is required by federal law, an absolute privilege must exist.” (Miller, 525 F. Supp. at 59.) The court considered Farmers Educational & Cooperative Union of America v. WDAY, Inc. (1959), 360 U.S. 525, 3 L. Ed. 2d 1407, 79 S. Ct. 1302, in which the Supreme Court held that because the defendant television station was compelled by section 315 of the Federal Communications Act of 1934 to broadcast the allegedly libelous comments, it was absolutely privileged to do so, and a libel action could not be maintained against it. The court in Miller noted that the defendant in WDAY, Inc. had no control over the language used but was compelled by law to broadcast a specific statement without exercising any censorship. However, the defendant in Miller, the court said, had control over the form of the release in question although certain of the contents were required by Federal law. Further, the court observed, even if actual statements in the release were compelled by law, the allegedly defamatory implication was not so compelled. The court in Miller was “unable to find that the absolute privilege for statements compelled by federal law extends to protect allegedly libelous inferences when the defendant is able to exercise control over the form of the statement so as to state factual truth required without defamatory implications.” Miller, 525 F. Supp. at 59.

In the instant case the information sought to be elicited by Disciplinary Rule 1 — 103(a) is, without question, greatly in the public interest, providing, as it does, protection to individuals and the public at large. Indeed, the underlying purposes of the disciplinary process are to maintain the integrity of the legal profession, to protect the administration of justice from reproach, and to safeguard the public. (In re LaPinska (1978), 72 Ill. 2d 461, 381 N.E.2d 700.) The preamble to the Illinois Rules of Professional Conduct (134 Ill. 2d Article VIII Preamble, Illinois Rules of Professional Conduct), which became effective, as we have already indicated, on August 1, 1990, recognizes as well the social importance of reporting misconduct by attorneys:

“The practice of law is a public trust. *** Lawyers therefore are responsible for *** maintaining public confidence in the system of justice *** by defending the integrity of the judicial
system against those who would corrupt, abuse or defraud it.
* * *
Lawyers also must assist in the policing of lawyer misconduct. The vigilance of the bar in preventing and, where required, reporting misconduct can be a formidable deterrent to such misconduct, and a key to maintaining public confidence in the integrity of the profession as a whole in the face of the egregious misconduct of a few.”

Under the mandatory reporting requirement of Disciplinary Rule 1 — 103(a), a lawyer is compelled to report “unprivileged knowledge” of a violation of Disciplinary Rule 1 — 102(a)(3) or (a)(4) or face disciplinary action that might result in the loss of the privilege to practice his or her profession and the means of earning a living. However, the degree of certainty of such “knowledge” of a violation required to be reported by the lawyer is not specified or in any way indicated in the rule or elsewhere in the Code of Professional Responsibility. Does an account given by a credible third person to an attorney amount to “knowledge” under Disciplinary Rule 1 — 103(a)? Does an account of a third person coupled with some corroborative detail from the reporting attorney’s own experience suffice to constitute “knowledge” under the rule? Must the reporting attorney have directly observed the conduct in question in order to have “knowledge” of it? Disciplinary Rule 1 — 103(a) and the Code of Professional Responsibility are silent about the extent or kind of information that constitutes “knowledge” triggering the lawyer’s absolute duty to report.

Similarly vague in Disciplinary Rule 1 — 103(a) is the requirement that such “knowledge” be reported to “a tribunal or other authority empowered to investigate or act upon such violation.” Section 26 of “An Act to revise the law in relation to counties” (Act) (Ill. Rev. Stat. 1983, ch. 34, par. 432) provides in part that “[i]t shall be the duty of the county board of each county *** [t]o provide reasonable and necessary expenses for the use of the county board, county clerk, county treasurer, recorder, sheriff, coroner, State’s attorney, superintendent of schools, judges and clerks of courts, and supervisor of assessment.” (Emphasis added.) Section 35.1 of the Act (Ill. Rev. Stat. 1983, ch. 34, par. 605.1) provides in part that “[i]n addition to any other remedies provided by law, the County Board may recover any unauthorized payment from the person receiving it and may seek the assistance of the State’s Attorney in that regard.” In light of these powers and duties accorded to a county board by the legislature, it appears that the Madison County Board would be empowered to investigate the improprieties alleged by the defendant Cueto in his letter to it concerning improper use of funds by Donald Weber as the State’s Attorney together with his employee in that office, the plaintiff herein. There has been no suggestion that the misconduct of Donald Weber alleged by the defendant in the letter of January 14, 1983, did not constitute a violation of Disciplinary Rule 1--102(a)(3) or (a)(4), as required by Disciplinary Rule 1 — 103(a). Thus, we conclude that the Madison County Board is, as is required by Disciplinary Rule 1 — 103(a), “a tribunal or other authority empowered to investigate or act upon” a violation of Disciplinary Rule 1 — 102(a)(3) or (a)(4).

Of greatest concern to us in determining whether an absolute privilege attaches to such a communication is the mandatory nature of the duty to report. The lawyer is compelled by Disciplinary Rule 1— 103(a) to report his “knowledge” of another lawyer’s violation of Disciplinary Rule 1 — 102(a)(3) or (a)(4). If a lawyer fails to comply with the rule, he or she faces professional discipline; if an attorney complies with the rule, he or she may have to defend a suit for defamation. With respect to the granting of absolute privilege to communications made in the discharge of a duty under express authority of law, we can make no meaningful distinction between the compulsion effected by a law enacted by the legislature and that effected by a disciplinary rule promulgated by the supreme court of Illinois. We recognize that the attorney making a report pursuant to Disciplinary Rule 1 — 103(a) controls the content of the report, unlike the radio or television station, for example, that may be required to broadcast certain statements without the opportunity of exercising any editorial control over the substance of the communication. However, inasmuch as Disciplinary Rule 1 — 103(a) places upon a lawyer an absolute duty to report certain violations in order to promote the public good but provides no guidance as to the nature or extent of the lawyer’s “knowledge” and little guidance as to what constitutes a “tribunal or other authority” to which such violations are to be reported, we hold that the communication made by the defendant Cueto to the members of the Madison County Board pursuant to Disciplinary Rule 1 — 103(a) is cloaked with an absolute privilege.

Although that communication made numerous references to a nonattorney, the plaintiff herein, it is readily apparent that the report concerning the attorney Donald Weber would be incomplete and, to some extent, incomprehensible had references to the plaintiff been omitted. An incomplete or incomprehensible report would render the duty to report under Disciplinary Rule 1 — 103(a) unfulfilled, the attorney subject to professional discipline for failure to comply with the rule, and the purpose of the rule unsatisfied. Therefore, we conclude that such references to a nonattorney do not fall outside the ambit of the privilege.

Section 2 — 619 of the Code of Civil Procedure, concerning involuntary dismissal based upon certain defects or defenses, provides that the defendant may, within the time for pleading, file a motion for dismissal or for other appropriate relief upon the ground that the claim asserted against him is barred by affirmative matter avoiding the legal effect of or defeating the claim. In light of our holding that the communication made by the defendant Cueto to the Madison County Board pursuant to Disciplinary Rule 1 — 103(a) is absolutely privileged, the trial court did not err in allowing the defendant Cueto’s motion to dismiss insofar as it applies to the publication of the letter to the 29 members of the Madison County Board. We note that the trial court found the publication to the members of the Madison County Board absolutely privileged for the reason that it is a “quasi-judicial/legislative body.” However, a reviewing court may affirm a correct decision for any reason appearing in the record, regardless of the basis relied upon by the trial court. (Kelsey Axle & Brake Division v. Presco Plastics, Inc. (1989), 187 Ill. App. 3d 393, 543 N.E.2d 239.) Inasmuch as we have already determined that the communication to the members of the Madison County Board is absolutely privileged, we need not consider whether the communication was absolutely privileged for the further reason that the Madison County Board under these circumstances is a quasi-judicial body. As we have stated, plaintiff has raised no issue concerning the trial court’s determination that the publication of the letter to the chief judge of the Third Judicial Circuit and to the ARDC was absolutely privileged.

As we have indicated, in her first amended complaint plaintiff alleged that the defendant Cueto had caused the letter in question to be published to “various newspapers circulated generally in Madison County, Elinois.” However, in its order the trial court made no finding with respect to the alleged publication of the letter to newspapers. We reverse the order of the trial court insofar as it dismisses the allegations in the counts against the defendant Cueto with respect to the publication of the letter to various newspapers circulated generally in Madison County and remand the cause for further proceedings with regard to the alleged publication of the letter by the defendant Cueto to “various newspapers circulated generally in Madison County, Elinois.” We make no determination here concerning the sufficiency of the specificity of the pleading or any contention concerning the effect, if any, of the applicable statute of limitations, neither question having yet been presented to the trial court for its consideration.

In light of our disposition, we need consider none of the other issues plaintiff presents for review.

Affirmed in part; reversed in part and remanded.

HOWERTON and GOLDENHERSH, JJ., concur.


author: JUSTICE HARRISON JUSTICE WELCH,

text:
    DAVID HARTLEIN, Petitioner-Appellee, v. ILLINOIS POWER COMPANY, Respondent-Appellant.
    Fifth District
    No. 5-90-0273
    Opinion filed March 11, 1991.

      WELCH, J., dissenting.
    Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville (Carl W. Lee and Thomas R. Peters, of counsel), for appellant.
    Amiel Cueto, of Cueto & Cueto, Ltd., of Belleville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, David Hartlein, is employed by defendant, Illinois Power Company, and is currently receiving total temporary disability payments under the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) as a result of a work-related injury. After being threatened that he might lose his job because of his injury and after being ordered by Illinois Power to seek employment elsewhere, plaintiff obtained a preliminary injunction restraining the company from, inter alia, discharging him, “discontinuing any rights or benefits or privileges of [his] employment,” or ordering him to apply for other jobs. From that order Illinois Power brings this interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)). As grounds for its appeal, the company contends that plaintiff should have been barred from bringing a common law action for injunctive relief because his claim falls within the exclusive purview of the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.). In the alternative, the company argues that the circuit court’s order should be reversed and the preliminary injunction vacated because plaintiff failed to establish the elements necessary to warrant preliminary injunctive relief. For the reasons which follow, we affirm.

The record before us shows that on April 20, 1990, plaintiff filed what he denominated as a “Petition for Temporary Restraining Order[,] Preliminary Injunction, and Permanent Injunction” in the circuit court of St. Clair County. Attached to that petition was an affidavit by plaintiff which incorporated by reference a “Chronology of Events” relevant to the dispute. At the hearing on plaintiff’s motion for a preliminary injunction, the facts contained in the affidavit were stipulated to by Illinois Power. Those facts, together with testimony from an Illinois Power claims adjuster named Preston Martin, showed that on June 15, 1987, plaintiff sustained a serious foot injury while working for Illinois Power as an apprentice lineman. As a result of this injury, plaintiff was placed on temporary total disability.

Approximately five months after the injury occurred, plaintiff’s treating physician, Dr. Chen, authorized him to return to work on the conditions that he be restricted to light duty and limited walking and that he not be permitted to do any climbing. The following month, Dr. Maurice Miller examined plaintiff at the request of Illinois Power and concluded that plaintiff could not return to work as a lineman. Illinois Power then hired a “disability management and rehabilitation” service known as ConServCo to evaluate plaintiff’s condition and perform “appropriate vocational services.”

Pursuant to instructions from Illinois Power, a ConServCo counselor named Michael McKee arranged to have plaintiff evaluated by Dr. Sherwyn J. Wayne. Wayne concluded that plaintiff did “not appear to be a candidate for rehabilitation to resume his previous work activities as a lineman,” but recommended that he undergo a so-called “work hardening” program at the Cole Center for Work-Related Injury. At the request of Illinois Power, arrangements were made for plaintiff to participate in that program, and he enrolled in the program in the middle of August 1988. Plaintiff’s participation in the “work hardening” program ended at the end of September 1988, and Dr. Wayne then authorized him to return to work.

Plaintiff resumed working at Illinois Power on October 4, 1988. He was assigned the job of meter reader. After less than two months, however, plaintiff had to stop work again because his foot injury prevented him from completing the routes he had been assigned. When this happened, plaintiff was once again placed on temporary total disability.

On January 6, 1989, plaintiff’s attorney contacted Preston Martin, the Illinois Power claims adjuster, and proposed that plaintiff be assigned to other work within the company which would be compatible with his physical limitations. This proposal was never accepted by Illinois Power. To the contrary, Martin indicated at the hearing on the preliminary injunction that as far as the company was concerned, it had no jobs which plaintiff was capable of performing. Although Illinois Power would not or could not return plaintiff to work, both the company and its workers’ compensation insurance carrier did not want to continue making temporary total disability payments to him. Accordingly, a plan was formulated to require plaintiff to seek employment elsewhere.

As part of this plan, Mike McKee, the counselor from ConServCo, requested plaintiff to prepare a resume which could be sent to other prospective employers. McKee told plaintiff, however, that he should not mention his foot injury to any prospective employers. Plaintiff’s attorney advised McKee that plaintiff would cooperate with Illinois Power, but that he would not lie regarding his physical condition. At the same time, plaintiff’s attorney advised Preston Martin that plaintiff would not voluntarily resign from the company unless he obtained another job “exactly comparable in every respect” to the position he held at Illinois Power. The attorney also complained that plaintiff was receiving repeated threats of discharge, and he requested that Martin send him a written description of the plan the company wanted plaintiff to follow.

Plaintiff’s attorney subsequently contacted Martin again and advised him that he did not believe that plaintiff was required by law to undergo a vocational rehabilitation program chosen by Illinois Power. Plaintiff’s attorney asked Martin to indicate whether it was ordering or merely requesting plaintiff to continue dealing with ConServCo. Plaintiff’s attorney advised Martin that if the company was simply making a request, the request was denied and that plaintiff would not cooperate further with ConServCo. Plaintiff’s attorney related this same message to McKee. At the same time, he advised McKee not to contact plaintiff directly and told him not to distribute any resumes or job applications to anyone on plaintiff’s behalf.

McKee responded by sending to plaintiff’s attorney a proposed rehabilitation plan which called for a “job search and attempted placement” to be conducted “within and outside Illinois Power Co.” Plaintiff’s attorney formally rejected McKee’s proposed plan by letter dated February 7, 1989. Thereafter, on April 11, 1990, Preston Martin sent a letter to plaintiff which included a list prepared by McKee of various other employers and possible job opportunities. In the letter, Martin requested that plaintiff contact these employers regarding job availability. Martin directed plaintiff to begin this job search immediately and to contact him within two weeks to advise him of the companies he had contacted, the persons with whom he interviewed, and the results of each interview. At the hearing on the preliminary injunction, Martin testified that Illinois Power had no plans to discharge plaintiff, but that if he did not apply for other jobs, the company intended to stop his temporary total disability payments.

Plaintiff then brought his action for a temporary restraining order, preliminary injunction and permanent injunction. On April 20, 1990, the circuit court granted a temporary restraining order without notice. Under that order, Illinois Power was enjoined from “discharging [plaintiff] or from changing the status quo, or from injuring [plaintiff’s] employment rights, or from discontinuing any rights or benefits or privileges of [plaintiff’s] employment, or from ordering [plaintiff] to apply for other jobs.” Following a hearing, the circuit court subsequently issued a preliminary injunction which incorporated these same terms. The court added, however, that it was specifically not enjoining “the Industrial Commission, nor [was] it enjoining Illinois Power from applying or petitioning to the Industrial Commission on any matter.”

On this appeal, Illinois Power first contends that the order granting the preliminary injunction should be reversed and that the preliminary injunction should be vacated because plaintiff’s exclusive remedy lies under the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) and he is not entitled to bring an independent common law action. We disagree.

Under Illinois law, it is unlawful for an employer to discharge an employee “because of the exercise of his *** rights or remedies granted to him *** by [the Workers’ Compensation] Act.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.4(h).) Where such a discharge takes place, the Workers’ Compensation Act is not the employee’s sole avenue of recourse. Rather, the employee has a cause of action against the employer in tort for retaliatory discharge. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 181-86, 384 N.E.2d 353, 357-59.) Plaintiff here expressly founds his action on this theory of recovery, and he had no alternative but to bring his retaliatory discharge claim as an independent action. Such claims must be brought independently. They cannot be pursued in a workers’ compensation proceeding. Marin v. American Meat Packing Co. (1990), 204 Ill. App. 3d 302, 311, 562 N.E.2d 282, 288; Garrison v. Industrial Comm’n (1980), 83 Ill. 2d 375, 377, 415 N.E.2d 352, 354.

To make out a claim of retaliatory discharge, a plaintiff must plead and prove (1) that he was discharged, (2) that the discharge was in retaliation for his activities, and (3) that the discharge violates a clear mandate of public policy. (Hinthorn v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 529, 519 N.E.2d 909, 911.) Illinois Power contends that the first of these elements is not present here because plaintiff has never actually been fired. The record shows otherwise. To be sure, the company never directly told plaintiff that he was out of a job, and at the hearing on the preliminary injunction Preston Martin flatly denied that plaintiff had been terminated. Nevertheless, we agree with plaintiff that requiring him to seek employment elsewhere was patently inconsistent with his continued employment at Illinois Power. Plaintiff could not work for anyone else unless he quit his job or was fired, and there is no question that he did not quit. Thus, we believe that by directing plaintiff to apply for work with other employers, Illinois Power effectively discharged him from his job. 119 Ill. 2d at 531, 519 N.E.2d at 912.

It is of no consequence that the termination was not phrased more explicitly. As our supreme court has held:

“There are no magic words required to discharge an employee: an employer cannot escape responsibility for an improper discharge simply because he never uttered the words ‘you’re fired.’ So long as the employer’s message that the employee has been involuntarily terminated is clearly and unequivocally communicated to the employee, there has been an actual discharge, regardless of the form such discharge takes.” 119 Ill. 2d at 531, 519 N.E.2d at 912.

From the record before us, there can be no dispute that Illinois Power discharged plaintiff solely because he was receiving workers’ compensation benefits for his work-related injury. Nor is there any doubt that under Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, such a discharge “violates a clear mandate of public policy.” Accordingly, all elements of a retaliatory discharge action are present, and plaintiff was not limited to seeking redress under the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.).

In retaliatory discharge actions involving rights under the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.), the discharged employees typically seek money damages. (See, e.g., Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353; Bragado v. Cherry Electrical Products Corp. (1989), 191 Ill. App. 3d 136, 547 N.E.2d 643.) This case is obviously diffeccccrent. No damages are claimed. Plaintiff seeks and has been granted only injunctive relief. Although the parties have not cited and we have not found any cases involving such a situation, Illinois Power does not dispute that injunctive relief may be appropriate in a retaliatory discharge action. The company argues, however, that even if plaintiff were entitled to pursue his common law retaliatory discharge action here, the circuit court nevertheless erred in granting a preliminary injunction because the elements necessary to warrant preliminary injunctive relief were not satisfied. Again we disagree.

A preliminary injunction is a provisional remedy granted before the hearing of a case on its merits in order to preserve the status quo, which is the last peaceable, uncontested status which preceded the pending litigation. In order for a preliminary injunction to issue, the plaintiff must establish by a preponderance of the evidence that (1) he possesses a clear right or interest needing protection, (2) no adequate remedy at law exists, (3) irreparable harm will result if an injunction is not granted, and (4) there is a likelihood of success on the merits. In addition, the trial court must balance the equities or relative inconvenience to the parties and determine whether a greater burden will be imposed on the defendant by granting the injunction than on the plaintiff by denying it. The decision to grant or deny injunctive relief rests with the sound discretion of the trial court and will not be disturbed absent a clear showing that the court abused its discretion. (Southern Illinois Medical Business Associates v. Camillo (1989), 190 Ill. App. 3d 664, 671-72, 546 N.E.2d 1059, 1064.) We find no abuse of discretion here.

As a preliminary matter, we note that while the preliminary injunction prohibits Illinois Power from changing the status quo “or from discontinuing any rights or benefits or privileges of [plaintiff’s] employment,” the court also expressly provided that it was “not enjoining the Industrial Commission, nor [was] it enjoining Illinois Power from applying or petitioning to the Industrial Commission on any matter.” (Emphasis in original.) In view of this limiting language, we do not believe that the circuit court intended to require Illinois Power to continue making temporary total disability payments pending a hearing on the merits of plaintiff’s retaliatory discharge claim. Such a requirement would have been improper. Whether temporary total disability payments should be made is a question which can only be taken up in the context of a claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.). Temporary total disability payments cannot be recovered in an independent action for retaliatory discharge. Bragado v. Cherry Electrical Products Corp. (1989), 191 Ill. App. 3d 136, 140, 547 N.E.2d 643, 645.

In our view, the effect of the circuit court’s injunction is simply to preliminarily restrain Illinois Power from discharging plaintiff, threatening to discharge him, or altering his employment status in any way. As so construed, the circuit court’s order is entirely proper. Generally, an employer may discharge an at-will employee such as plaintiff for any reason or for no reason at all. (Veit v. Village of Round Lake (1988), 167 Ill. App. 3d 350, 352, 521 N.E.2d 145, 147.) Correspondingly, an employer cannot, by decree of court, be compelled to retain another in his service or to reinstate him after being fired. (Kurle v. Evangelical Hospital Association (1980), 89 Ill. App. 3d 45, 53, 411 N.E.2d 326, 332.) The effect of Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, and its progeny, however, is to create an exception to the common law “at-will” rule where the discharge would contravene a clearly mandated public policy. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 128, 421 N.E.2d 876, 878.) Pursuant to this exception, employees such as plaintiff possess a certain and clear right under Illinois law not to be discharged or even threatened -with discharge for exercising their rights under the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.).

Kelsay itself involved only a claim for money damages. Accordingly, our supreme court had no occasion to pass on the question of whether it might also be appropriate to grant injunctive relief to prevent an employee from being discharged or threatened with discharge or to require that a discharged employee be reinstated pending the outcome of the litigation. In our view, however, nothing in that decision precludes such relief. (See Kurle v. Evangelical Hospital Association (1980), 89 Ill. App. 3d 45, 55-56, 411 N.E.2d 326, 333 (Seidenfeld, J., dissenting).) To the contrary, we believe that it would be anomalous to say, as Kelsay does, that an employer is prohibited from discharging or threatening to discharge an employee for asserting his rights under the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.), but then to deny the employee the right to obtain injunctive relief to prevent his discharge or to stop the threat of such a discharge and to require him simply to seek monetary compensation after the discharge has taken place.

Illinois Power suggests that because plaintiff has the right to seek such monetary compensation after the fact, he has an adequate remedy at law and will not suffer irreparable harm if injunctive relief is denied. This is not so. In a commercial context it has been held that a showing of irreparable harm is related to the proof of a legitimate business interest. Once a protectible interest has been established, injury to the plaintiff will be presumed to follow if that interest is not protected. (U-Haul Co. v. Hindahl (1980), 90 Ill. App. 3d 572, 577, 413 N.E.2d 187, 192.) The courts have thus held, for example, that the loss of customers and sales and the threat of the continuation of such losses to a legitimate business interest is sufficient in itself to show that a plaintiff will suffer irreparable injury unless protected by the court. Eagle Books, Inc. v. Jones (1985), 130 Ill. App. 3d 407, 411, 474 N.E.2d 444, 447, cert. denied (1985), 474 U.S. 920, 88 L. Ed. 2d 257, 106 S. Ct. 249.

Plaintiff here, of course, does not own a business, nor does he operate a commercial enterprise for profit. He is an ordinary working man who relies on the wages he earns through his labor to support his family. As we have previously indicated, however, he has a clearly protected interest under the Workers’ Compensation Act not to be discharged or threatened with discharge. In our view, there is no principled basis for according this interest any less importance than the commercial interests of a business proprietor. Accordingly, the violation of that interest by Illinois Power is sufficient, standing alone, to establish irreparable harm.

Moreover, we do not believe that plaintiff can be said to have an adequate remedy at law. An adequate remedy at law, the existence of which will preclude a grant of injunctive relief, is one which is clear, complete and as practical and efficient to the ends of justice and its prompt administration as the proposed equitable remedy. (Tamalunis v. City of Georgetown (1989), 185 Ill. App. 3d 173, 189-90, 542 N.E.2d 402, 413.) While lost wages and benefits may be susceptible of calculation and can be compensated monetarily, the loss of employment is more than the loss of a paycheck or benefits. For working people, such as plaintiff, a job helps define self-worth and personal identity. It gives life meaning and dignity. The loss of such values cannot readily be translated into a dollar amount, and once gone, they may be difficult to recapture. Indeed, some people never recover from the stigma and sense of defeat and failure unemployment may engender. For such individuals, a damage award is scant compensation.

Even if we were to put such considerations aside, however, we would nevertheless be compelled to conclude that a legal remedy would not be adequate. In our view, the public policy against discharging employees for exercising their rights under the Workers’ Compensation Act cannot be fully protected simply through after-the-fact damage actions. To give the policy full effect, employers must be absolutely prohibited from attempting discharge, and this can only be done if the courts are willing to issue orders restraining them from purging or threatening to purge from their employment rosters employees who have asserted their rights to workers’ compensation benefits.

Plaintiff has shown a likelihood of success on the merits. If preliminary injunctive relief had not issued, the burden on plaintiff would have been great. The source of his livelihood would have been lost. On the other hand, issuance of the injunction placed no legally cognizable burden on Illinois Power. The company was simply forced to do what the law requires. For the foregoing reasons, we must conclude that the circuit court did not abuse its discretion in granting plaintiff’s motion for a preliminary injunction. Accordingly, the order granting that injunction is affirmed.

Affirmed.

RARICK, P.J., concurs.

JUSTICE WELCH,

dissenting:

I respectfully dissent. I believe plaintiff has an adequate remedy at law in the event he is discharged by Illinois Power in retaliation for exercising his rights under the Workers’ Compensation Act. Illinois courts have never before recognized a right to injunctive relief in retaliatory discharge cases, but have awarded plaintiffs monetary damages. I think money damages can adequately compensate plaintiff for loss of his employment rights and benefits and that he therefore has an adequate remedy at law, precluding injunctive relief.

The majority, relying on U-Haul Co. v. Hindahl (1980), 90 Ill. App. 3d 572, 413 N.E.2d 187, and Eagle Books, Inc. v. Jones (1985), 130 Ill. App. 3d 407, 474 N.E.2d 444, holds that plaintiff will suffer irreparable damages if the injunction is denied because violation of his protectable interest not to be discharged in retaliation for exercising his rights under the Workers’ Compensation Act is sufficient to establish irreparable injury. However, in both those cases, irreparable injury was not presumed, as the majority concludes, but was found to exist because the damages plaintiffs did suffer, specifically loss of future business, were not capable of adequate computation. Thus, the plaintiffs had no adequate remedy at law and would have been irreparably injured by the denial of an injunction.

In the instant case, plaintiff’s damages are capable of adequate computation. Courts have long compensated for loss of employment rights and benefits and have had no trouble doing so. If, after hearing the merits of plaintiff’s retaliatory discharge action, the court determines that plaintiff has established his case, plaintiff can be adequately and fully compensated in money damages for his loss of employment benefits.

The majority argues that plaintiff cannot be compensated monetarily for his loss of “self-worth and personal identity” and his loss of “meaning and dignity” in his life. I believe that an award of punitive damages, allowable in retaliatory discharge cases, goes a long way toward compensating for these “losses.” In any event, such “damages” are speculative and proof of a speculative possibility of injury is not sufficient to justify an injunction. In re Marriage of Strauss (1989), 183 Ill. App. 3d 424, 429, 539 N.E.2d 808, 812.

Finally, the majority argues that no adequate legal remedy exists because the public policy against discharging employees for exercising their rights under the Workers’ Compensation Act cannot be fully protected simply through actions for money damages. Allowing awards of punitive damages adequately protects the public policy. Indeed, punitive damages are awarded for that specific purpose.

Because plaintiff has an adequate remedy at law, I dissent.


author: PRESIDING JUSTICE RARICK

text:
    ASHLEY McKEOWN, a Minor, by Karla McKeown, her Mother and Next Friend, Plaintiff-Appellant, v. DAVID HOMOYA, d/b/a the Flight 148 Lounge, Defendant-Appellee.
    Fifth District
    No. 5-90-0347
    Opinion filed March 11, 1991.

      Patrick M. McCann, of McCann & Foley, of Murphysboro, for appellant.
    Thomas L. Kilbride, of Klockau, McCarthy, Ellison & Marquis, P.C., of Rock Island, for appellee.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Ashley McKeown, a minor, by Karla McKeown, her mother and next friend, appeals from the order of the circuit court of Williamson County dismissing her complaint for failure to state a cause of action for which relief may be granted. We affirm.

During the evening of November 17, 1988, Philip Fries, plaintiff’s father, visited the Flight 148 Lounge in Herrin, Hlinois, owned by defendant, David Homoya, d/b/a The Flight 148 Lounge. At some point Fries was asked to leave the premises because of his intoxication. Prior to his departure, however, Fries purchased a case of beer and a fifth of whiskey. At approximately 3:45 a.m. on November 18, 1988, Fries died in an automobile collision on Interstate 57 just outside of Marion, IUinois. Plaintiff filed a complaint against defendant for negligent loss of support. The trial court dismissed her complaint on the basis that the Liquor Control Act of 1934 (Ill. Rev. Stat. 1987, ch. 43, par. 135) (the Dramshop Act), the exclusive remedy against tavern owners in actions for injuries or death to persons in consequence of intoxication, does not provide a common law action of negligence for loss of support.

Plaintiff first argues on appeal the Dramshop Act unconstitutionally denies her an available remedy by excluding any relief for loss of support. She further contends a common law cause of action should be recognized under the circumstances here of a tavern selling large quantities of alcohol to an intoxicated individual after requesting him to leave the premises because of his intoxication. While we are sympathetic to plaintiff’s plight, we regrettably have no choice but to affirm the dismissal of her complaint.

The courts of this State have repeatedly and consistently held since its enactment that the Dramshop Act provides the exclusive remedy in Hlinois against tavern owners and operators for injuries caused by an intoxicated person or in consequence of intoxication, there being no common law liability for the negligent sale or supply of liquor in this State. (See, e.g., Jodelis v. Harris (1987), 118 Ill. 2d 482, 488, 517 N.E.2d 1055, 1058-59; Cunningham v. Brown (1961), 22 Ill. 2d 23, 30-31, 174 N.E.2d 153, 157.) While at one time the loss of support to the family of the intoxicated person in consequence of his intoxication was a recognized cause of action, it no longer is, as a result of an amendment to the Act (Ill. Rev. Stat. 1987, ch. 43, par. 135(a)), effective January 1, 1986, prohibiting recovery for loss of means of support “on the intoxicated person himself or on any person claiming to be supported by such intoxicated person.” (See Glinka v. Flame of Countryside, Inc. (1988), 171 Ill. App. 3d 81, 83, 524 N.E.2d 1102, 1103.) Because the Dramshop Act is a purely statutory cause of action, the legislature can choose to abrogate available remedies through subsequent legislation. (Glinka, 171 Ill. App. 3d at 84, 524 N.E.2d at 1103-04.) More importantly, as the legislature is the only entity with the power to set the terms of recovery and liability without interference from the courts for an action unknown at common law, the freedom with which we may act to alleviate perceived injustices is thereby restricted. Stevens v. Lou’s Lemon Tree, Ltd. (1989), 187 Ill. App. 3d 458, 462-63, 543 N.E.2d 293, 296-97.

Plaintiff argues, however, the Act as it currently stands denies her her right to “a certain remedy” as guaranteed by article I, section 12, of the Illinois Constitution (Ill. Const. 1970, art. I, §12). Section 12 of article I, which provides, “Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation,” is “an expression of a philosophy,” not a mandate that a “certain remedy” be provided in any specific form. (See Defend v. Lascelles (1986), 149 Ill. App. 3d 630, 642, 500 N.E.2d 712, 720; Pantone v. Demos (1978), 59 Ill. App. 3d 328, 332, 375 N.E.2d 480, 483.) As the courts have repeatedly held, the Dramshop Act creates a remedy, not abrogates one. (Cunningham, 22 Ill. 2d at 28-29, 174 N.E.2d at 156.) More importantly, the existence of any legislative remedy, albeit limited, does not require the courts to recognize an additional or expanded remedy. (See Cunningham, 22 Ill. 2d at 30, 174 N.E.2d at 157; Stevens, 187 Ill. App. 3d at 465, 543 N.E.2d at 298; Gora v. 7-11 Food Stores (1982), 109 Ill. App. 3d 109, 112, 440 N.E.2d 279, 281.) Any extension of liability for the sale or supply of liquor beyond the historical limits of the Dramshop Act, therefore, is a function of the legislature, not of the courts. (Gora, 109 Ill. App. 3d at 112, 440 N.E.2d at 281-82; see also Richardson v. Ansco, Inc. (1979), 75 Ill. App. 3d 731, 732, 394 N.E.2d 801, 802.) Consequently, plaintiff’s failure to state a cause of action simply cannot be cured by alleging she should have a remedy as provided in article I, section 12, of the Illinois Constitution. Berlin v. Nathan (1978), 64 Ill. App. 3d 940, 951, 381 N.E.2d 1367, 1374.

Plaintiff next urges us to recognize a common law action under the circumstances presented here. Unfortunately, there is no common law cause of action based upon the willful and wanton misconduct by a tavern owner in connection with the sale or supply of alcohol, no matter how egregious the underlying facts of the cause of action are. (See Ruth v. Benvenutti (1983), 114 Ill. App. 3d 404, 406, 449 N.E.2d 209, 211.) While we agree with plaintiff that defendant’s conduct in this instance certainly was outrageous, we must reiterate the only remedy in Illinois against tavern owners and operators for injuries caused by an intoxicated person or in consequence of intoxication is that provided by the legislature in the Dramshop Act. It is true under some circumstances a common law negligence cause of action beyond the Act has been recognized against tavern owners. (See, e.g. Harris v. Gower, Inc. (1987), 153 Ill. App. 3d 1035, 506 N.E.2d 624; Lessner v. Hurtt (1977), 55 Ill. App. 3d 195, 371 N.E.2d 125.) These cases, however, do not involve injuries resulting from the negligent sale or supply of alcohol, but rather concern injuries resulting from the failure of a general duty to keep business premises safe (see Lessner, 55 Ill. App. 3d at 197, 371 N.E.2d at 126) or from the placing of one in peril beyond the sale or supply of alcohol (see Harris, 153 Ill. App. 3d at 1038, 506 N.E.2d at 626). (Goodknight v. Piraino (1990), 197 Ill. App. 3d 319, 322-24, 554 N.E.2d 1, 3-4.) Unfortunately for plaintiff, the injury here arises from the sale of intoxicating beverages. Consequently, plaintiff’s remedy, if any, must be found within the confines of the Dramshop Act. We further note a tavern has no duty to restrain a patron from driving away no matter how intoxicated that individual may be. (See Gustafson v. Mathews (1982), 109 Ill. App. 3d 884, 888, 441 N.E.2d 388, 391; see also Badillo v. De Vivo (1987), 161 Ill. App. 3d 596, 599, 515 N.E.2d 681, 684 (tavern operator/owner has no duty to protect patrons from injuries that occur after patron leaves premises).) Regrettable as this result may be, we are compelled to conclude the matter is one for the legislature to remedy.

For the aforementioned reasons, we affirm the order of the circuit court of Williamson County dismissing plaintiff’s complaint for failure to state a cause of action for which relief may be granted.

Affirmed.

LEWIS and GOLDENHERSH, JJ., concur.


text:
    UPPER LEVEL, INC., Plaintiff-Appellant and Counterdefendant-Appellant, v. PROVIDENT VENTURE CORPORATION, Defendant-Appellee and Counterplaintiff-Appellee (Midland Community Bank, Counterdefendant).
    Fifth District
    No. 5-90-0171
    Opinion filed March 11, 1991.
    Edward T. Graham, Jr., of Hershey, Beavers, Periard & Graham, of Taylorville, for appellant.

      Daniel W. Austin, of Miley, Meyer, Austin, Spears & Romano, EC., of Taylorville, for appellee.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Upper Level, Inc. (Upper Level), appeals from the entry of summary judgment in favor of defendant, Provident Venture Corporation (PVC), granted by the circuit court of Christian County. We affirm.

The controversy here stems from certain property located in Taylorville, Illinois. In 1985, PVC purchased fee simple title to two premises, one commonly referred to as the “Mini Mall,” the second consisting of an adjoining structure to the west of the mall. At that time, Upper Level was one of the tenants of the mall and had been since 1982. On December 1, 1986, Upper Level entered into a lease with PVC for the rental of the adjoining structure. Upper Level subsequently decided it wished to purchase the building it was renting. The parties reached an agreement with the closing occurring in December of 1987. The following spring, Upper Level decided to remodel its building. As part of this remodeling, Upper Level concluded it needed to remove two encroachments on its property. These encroachments consisted of a loading dock and concrete structure housing bathrooms, both of which serviced the Mini Mall. Upper Level informed PVC of its intentions; PVC, in turn, informed Upper Level that the encroachments were not to have been transferred during the sale. PVC offered to buy them back but Upper Level refused. Upper Level then sought to eject PVC. PVC countered, seeking reformation of the parties’ deed in order to keep the encroachments. Both parties filed motions for summary judgment. The trial court found in favor of PVC, thereby reforming the deed as requested based upon mutual mistake of fact.

Upper Level argues on appeal reformation of the parties’ deed is not supported by the evidence. We disagree. For a written instrument to be reformed, the party seeking reformation must prove by clear and convincing evidence that there has been a meeting of the minds resulting in an actual agreement between the parties but when reduced to writing and executed, an agreed-upon provision was omitted or one not agreed upon was inserted either because of a mutual mistake or because of a mistake by one party and fraud by the other. (See La Salle National Bank v. Kissane (1987), 163 Ill. App. 3d 534, 540-41, 516 N.E.2d 790, 793; Parrish v. City of Carbondale (1978), 61 Ill. App. 3d 500, 505, 378 N.E.2d 243, 247; Biren v. Kluver (1976), 35 Ill. App. 3d 692, 696, 342 N.E.2d 325, 328.) Whether the evidence offered to support the claim of mutual mistake is sufficient to overcome the presumption that the written instrument expresses the true intent of the parties primarily is a question for the trier of fact, which, unless manifestly against the weight of the evidence, will not be disturbed on appeal. (La Salle, 163 Ill. App. 3d at 541, 516 N.E.2d at 793-94; Parrish, 61 Ill. App. 3d at 506, 378 N.E.2d at 247; see also Great American Federal Savings & Loan Association v. Grivas (1985), 137 Ill. App. 3d 267, 274, 484 N.E.2d 429, 434.) The trial court here made an express finding there was a mutual mistake. We believe the evidence supports such a finding.

The record reveals Upper Level had been a tenant in the Mini Mall starting in 1982. When the opportunity arose, Upper Level relocated to the adjoining structure. Upper Level and/or its employees, however, did not take possession of or use the encroachments, namely the loading dock and bathrooms, both of which are inaccessible from inside the adjoining structure. The situation did not change once Upper Level purchased the building; it still did not take possession of the two encroachments. More importantly, Upper Level did not prevent anyone else from using the encroachments, nor did it maintain, clean, repair or collect rents on them. The plumbing and electrical services to the restrooms are not even connected to the adjoining structure. In such an instance, where there is evidence of a mistake in description, the fact that the seller is permitted to remain in possession of the part in dispute is evidence of knowledge on the part of the buyer that said part was not intentionally included in the sale. (See Blumenfeld v. Neuman (1953), 350 Ill. App. 306, 311, 112 N.E.2d 742, 745.) Additionally, there is nothing in the record showing that when the deed was directed to be prepared either party was aware the legal description included the encroachments. The parties’ negotiations concerned the purchase and sale of the building only. It is unreasonable to believe PVC would sell its restrooms and loading dock to someone who had no access to either, thereby preventing its own access at the same time. Moreover, whether or not PVC’s tenants in the Mini Mall currently use the encroachments is irrelevant to deciding the issue of mutual mistake between the parties when their agreement was made. We therefore conclude the record amply supports the trial court’s finding of mutual mistake, thereby justifying reformation of the parties’ deed in favor of PVC. We further find no error in reforming the deed to include access to the loading dock. A loading dock without egress or ingress would be useless.

We also cannot accept Upper Level’s contention that the trial court erred in granting PVC’s motion for summary judgment. Summary judgment is appropriate where the pleadings, depositions, admissions, affidavits and exhibits submitted to the trial court reveal that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (E.g., Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 586, 272 N.E.2d 497, 500; Bank of Benton v. LaBuwi (1990), 194 Ill. App. 3d 489, 494, 551 N.E.2d 749, 753.) Merely alleging that there exists a genuine issue of material fact does not create such an issue. (Turner v. City of Chicago (1980), 91 Ill. App. 3d 931, 937, 415 N.E.2d 481, 486.) Nor does every issue of fact defeat a motion for summary judgment. In order to preclude the entry of summary judgment, the factual issue must be material. (Macmor Mortgage Corp. v. Exchange National Bank (1975), 30 Ill. App. 3d 734, 740, 332 N.E.2d 740, 744.) No matter how sharply controverted, facts irrelevant to the essential elements of the cause of action will not warrant denial of a motion for summary judgment. (Bank of Benton, 194 Ill. App. 3d at 495, 551 N.E.2d at 753.) The material facts here are not contradicted. Upper Level’s statement it intended to purchase the entire real estate described in the deed simply is not enough, in view of the undisputed facts, to raise a genuine issue of material fact, even when viewing the record in a light most favorable to Upper Level. The trial court therefore properly entered summary judgment in favor of PVC in this instance.

For the aforementioned reasons, we affirm the entry of summary judgment granted by the circuit court of Christian County.

Affirmed.

WELCH and GOLDENHERSH, JJ., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOSEPH A. FINLEY, Defendant-Appellee.
    Third District
    No. 3-90-0176
    Opinion filed February 25, 1991.

      Joseph Navarro, State’s Attorney, of Ottawa (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    George G. Leynaud, of Peru, and Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

The defendant, Joseph A. Finley, was charged by indictment with the felony offense of driving while under the influence of alcohol (DUI) pursuant to section 11 — 501 (d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 501 (d)). This section provides for enhancement of a DUI conviction to a Class 4 felony when two prior DUI violations have been committed. The indictment charged that the defendant had previously committed the offense of DUI in April and September of 1982. The defendant filed a motion to dismiss, claiming that use of the April 1982 conviction was improper because he was indigent at that time and he had not waived nor been afforded counsel.

The trial court granted the defendant’s motion to dismiss the indictment, finding that the indictment failed to state an offense and that it violated the defendant’s right to due process of law. These findings were premised on the court’s belief that Baldasar v. Illinois (1980), 446 U.S. 222, 64 L. Ed. 2d 169, 100 S. Ct. 1585, prevented use of the defendant’s prior uncounseled misdemeanor DUI conviction to enhance the current charge to a felony. On appeal the State contends that the trial court erred in dismissing the indictment because: (1) the indictment stated an offense; (2) Baldasar does not bar the use of defendant’s prior conviction; and (3) even if Baldasar applies, dismissal of the indictment was improper. We reverse and remand.

In Baldasar v. Illinois (1980), 446 U.S. 222, 64 L. Ed. 2d 169, 100 S. Ct. 1585, an indigent defendant who was not represented by counsel and who had not formally waived the right to counsel was convicted of misdemeanor theft. The defendant was subsequently convicted of another theft which was enhanced to a felony because of the prior conviction. The United States Supreme Court reversed the defendant’s conviction, holding that the prior uncounseled misdemeanor conviction could not be used collaterally to impose an increased term of imprisonment upon a subsequent conviction. Baldasar, 446 U.S. at 225-26, 64 L. Ed. 2d at 173-74, 100 S. Ct. at 1587 (Marshall, J., concurring, joined by Brennan and Stevens, JJ.).

In seeking to avoid the effect of Baldasar, the State makes several arguments. First, the State contends that while Baldasar may prevent enhancement based on an uncounseled prior conviction, section 11 — 501(d)(1) does not require proof of prior convictions. Rather, according to the State, this section only requires the State to establish that the defendant committed the offense of DUI on two prior occasions. Section 11 — 501 (d) provides:

“(d) Every person convicted of committing a violation of this Section shall be guilty of a Class 4 felony if:
(1) Such person committed a violation of paragraph (a) for the third or subsequent time.” (Emphasis ádded.) Ill. Rev. Stat. 1989, ch. 95V2, par. ll-501.1(d)(l).

The State argues that the “plain language” of the statute demonstrates the legislature’s intent to distinguish between one who has been “convicted” of DUI and one who has “committed” the offense of DUI. Thus, the argument continues, the State was not required to prove the defendant’s prior conviction for DUI, but only that he committed the offense of DUI twice in the past. Presumably this could be done by presenting evidence other than the record of defendant’s uncounseled conviction.

We see no need, however, to speculate on the legislative intent allegedly demonstrated by the use of the terms “convicted” and “committed.” The rationale underlying the Baldasar decision is that an uncounseled conviction is not sufficiently reliable to support a sentence of imprisonment.

“An uncounseled conviction does not become more reliable merely because the accused has been validly convicted of a subsequent offense. For this reason, a conviction which is invalid for purposes of imposing a sentence of imprisonment for the offense itself remains invalid for purposes of increasing a term of imprisonment for a subsequent conviction under a repeat-offender statute.” Baldasar, 446 U.S. at 227-28, 64 L. Ed. 2d at 175, 100 S. Ct. at 1588 (Marshall, J., concurring, joined by Brennan and Stevens, JJ.).

Clearly, if defendant’s prior conviction is not sufficently reliable to support enhancement of the present offense, some lesser quantum of evidence indicating that defendant “committed” the offense of DUI would be still less reliable. Therefore we find that the principle underlying Baldasar is undisturbed by the State’s argument.

The State next argues that the trial court erred in holding that the State has the burden of establishing that the defendant waived counsel. It is well settled, however, that where there is no affirmative indication in the record that the right to counsel has been waived, the burden is on the State to demonstrate such a waiver, and every reasonable presumption against a finding of waiver will be entertained. (People v. Vadeboncoeur (1982), 104 Ill. App. 3d 787, 433 N.E.2d 370; People v. McCarty (1981), 101 Ill. App. 3d 355, 427 N.E.2d 1382, affd in part & rev’d in part (1983), 94 Ill. 2d 28, 445 N.E.2d 298; People v. Roofener (1981), 95 Ill. App. 3d 342, 420 N.E.2d 189; People v. Brown (1980), 80 Ill. App. 3d 616, 399 N.E.2d 1374.) In the instant case, the State stipulated that there was no record that defendant had counsel when pleading guilty to the first DUI offense in April of 1982. The defendant filed an affidavit stating that he could not afford counsel for the April 1982 charge, that he was not informed of his right to counsel, and that he was told by the assistant State’s Attorney that he had no right to appointed counsel because the State was not seeking a jail term. The State was unable to present any evidence to refute the defendant’s claims, and the trial court found that Baldasar prohibited the State from using the April 1982 conviction to enhance the current charge to a felony. Based on the record, we cannot say that such a finding was contrary to the manifest weight of the evidence. See Vadeboncoeur, 104 Ill. App. 3d at 789, 435 N.E.2d at 371-72.

The State next contends that even if defendant’s April 1982 conviction was the result of an uncounseled guilty plea, it was nevertheless admissible under Schindler v. Clerk of Circuit Court (7th Cir. 1983), 715 F.2d 341. Schindler was convicted of operating a motor vehicle while intoxicated (OWI) under a Wisconsin statute which provided for progressive penalties for subsequent offenses. A first-time offender was subject only to a civil forfeiture of $100 to $500. Schindler, who claimed to be indigent, was not represented by counsel at this proceeding as Wisconsin does not provide counsel to first offenders because the proceedings are civil in nature. Schindler was later convicted of OWI two more times, and he objected to being sentenced as a third offender, arguing that Baldasar prohibited the imposition of an enhanced penalty based on his prior uncounseled conviction. The United States Court of Appeals rejected Schindler’s argument, finding that use of a prior uncounseled civil adjudication was not proscribed by Baldasar.

We do not find Schindler persuasive. As the trial judge in this case noted, the Illinois DUI statute, which enhances a Class A misdemeanor to a Class 4 felony on the third offense, is more akin to the theft statute at issue in Baldasar than it is to the Wisconsin OWI statute. Indeed, it appears likely that the Schindler court would have reached a different result under a statute such as ours:

“Admittedly, nothing prevents the State of Wisconsin from amending its statute to provide for criminal sanctions commencing with the first violation. Arguably, under the plurality’s reasoning in Baldasar, such an amendment would require the Wisconsin courts to appoint counsel for indigents if subsequent violations were to be enhanced.” Schindler, 715 F. 2d at 347.

We hold, therefore, that the use of defendant’s prior uncounseled DUI conviction to enhance his current offense to a Class 4 felony is prohibited by Baldasar. There remains, however, the question of whether dismissal of the indictment was proper under such circumstances. We hold that it was not.

In general, a trial court may dismiss criminal charges prior to trial only for the reasons set forth in section 114 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 1) or when there has been a clear denial of due process which prejudiced the defendant (People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244; People v. Valenzuela (1989), 180 Ill. App. 3d 671, 536 N.E.2d 160; People v. Schroeder (1981), 102 Ill. App. 3d 133, 429 N.E.2d 573). One of the grounds for dismissal enumerated in section 114 — 1, and one upon which the trial court here relied, is that the charge does not state an offense (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 1(8)).

When the sufficency of an indictment is challenged in a pretrial motion, the standard of review is to determine whether the indictment complies with section Ill — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. Ill — 3), which requires that the charge be in writing, state the name of the offense and the statutory provision allegedly violated, state the name of the accused and the date and county of the offense, and set forth the nature and elements of the offense. The purpose of an indictment is to advise the accused of the nature of the charge so that he is able to fully prepare his defense and so that he may plead the judgment as a bar in a subsequent prosecution for the same offense. (People v. Miles (1981), 96 Ill. App. 3d 721, 422 N.E.2d 5; People v. Simon (1980), 91 Ill. App. 3d 667, 416 N.E.2d 285.) If the indictment meets these standards, it should not be dismissed. (Simon, 91 Ill. App. 3d at 669, 416 N.E.2d at 286.) Moreover, the purpose of a motion to dismiss for failure to state an offense is to challenge the sufficiency of the allegations in the charging instrument, not the sufficiency of the evidence. (People v. Gerdes (1988), 173 Ill. App. 3d 1024, 527 N.E.2d 1310.) The indictment in the instant case charged:

“ON OR ABOUT JULY 15, 1989, IN LASALLE COUNTY, ILLINOIS, JOSEPH A. FINLEY, DEFENDANT, COMMITTED THE OFFENSE OF: DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL (CLASS 4 FELONY) IN THAT THE SAID DEFENDANT DID UNLAWFULLY OPERATE A 1978 BUICK ON WESTBOUND ROUTE 34 AND 14TH AVENUE IN LASALLE COUNTY, ILLINOIS, AT A TIME WHEN THE DEFENDANT WAS UNDER THE INFLUENCE OF ALCOHOL AND THE DEFENDANT HAD PREVIOUSLY COMMITTED THE OFFENSE OF DRIVING UNDER THE INFLUENCE OF ALCOHOL IN BUREAU COUNTY, ILLINOIS ON APRIL 17, 1982 AND SEPTEMBER 26, 1982, IN VIOLATION OF SECTION ll-501(d) CHAPTER 95V2, ILLINOIS REVISED STATUTES.”

Clearly, the indictment complied with the requirements of section 111 — 3 and also fully informed the defendant of the nature of the charge. We find, therefore, that the trial court erred in finding that the indictment failed to state an offense.

The trial court also offered an additional reason for dismissing the indictment, stating that it “would be a tremendous violation of [defendant’s] due process in order to have him stand trial on a felony that cannot be proven.” A trial court, of course, has the inherent authority to dismiss an indictment where there has been an unequivocally clear denial of a defendant’s right to due process (People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244; People v. Bragg (1984), 126 Ill. App. 3d 826, 467 N.E.2d 1004), but a court must proceed with restraint in ascertaining due process violations in indictment procedures (Lawson, 67 Ill. 2d 449, 367 N.E.2d 1244; People v. Shaw (1985), 133 Ill. App. 3d 391, 478 N.E.2d 1142).

The trial court apparently felt that since Baldasar prohibited use of the defendant’s April 1982 conviction, dismissal of the indictment was required. However, the merits of a case are not meant to be decided in the vacuum of a motion to dismiss. (Gerdes, 173 Ill. App. 3d at 1031, 527 N.E.2d at 1315; People v. Rose (1976), 44 Ill. App. 3d 333, 357 N.E.2d 1342.) While an indictment which is not supported by any evidence may be dismissed, a defendant may not challenge an indictment on the grounds that it is not supported by adequate evidence. (People v. Rodgers (1982), 92 Ill. 2d 283, 442 N.E.2d 240; Bragg, 126 Ill. App. 3d 826, 467 N.E.2d 1004.) There need only be some evidence relevant to the charge, and it is not necessary that evidence be presented for each element of the offense (Rodgers, 92 Ill. 2d at 290, 442 N.E.2d at 240; People v. Lightner (1986), 145 Ill. App. 3d 741, 496 N.E.2d 269; Shaw, 133 Ill. App. 3d 391, 478 N.E.2d 1142). Furthermore, the defendant’s motion to dismiss is grounded upon a claim of denial of his right to counsel at his April 1982 DUI conviction. The proper remedy for infringement of the right to counsel is suppression of the evidence obtained in the violation of the right, not dismissal of the indictment. (People v. Barton (1984), 122 Ill. App. 3d 1079, 462 N.E.2d 538; People v. Amft (1982), 109 Ill. App. 3d 619, 440 N.E.2d 924; see People v. J.H. (1990), 136 Ill. 2d 1, 554 N.E.2d 961 (Even if defendant’s fourth, fifth, or sixth amendment rights were violated, he was at most entitled to suppression of the evidence; his remedy did not extend to dismissal of the indictment).) Relief may be obtained by a defendant in circumstances such as those presented here through the use of a motion in limine.

People v. Vadeboncoeur (1982), 104 Ill. App. 3d 787, 433 N.E.2d 370, relied upon by the defendant to support his position that dismissal was proper, is distinguishable. In Vadeboncoeur, this court affirmed the dismissal of a felony theft indictment that was predicated on a prior uncounseled guilty plea. The issue in Vadeboncoeur was whether the trial court’s finding that the defendant had not waived his right to counsel was against the manifest weight of the evidence. The question of whether dismissal of the indictment was the proper remedy was apparently never presented to the court and was not decided in that case. Accordingly, we find that the trial court erred in dismissing the indictment.

For the foregoing reasons, the judgment of the circuit court is reversed and remanded for further proceedings consistent with this opinion.

Reversed and remanded.

BARRY and McCUSKEY, JJ., concur.