author: JUSTICE WELCH

text:
      In re APPLICATION OF MULTIMEDIA KSDK, INC., Petitioner-Appellant.
    Fifth District
    No. 5 — 91—0369
    Opinion filed November 13, 1991.

      Gerald R. Orbals, pro hoc vice, and Donald P. Wray, Jr., both of Greensfelder, Hemker & Gale, P.C., of St. Louis, Missouri, for appellant.
    John J. Rekowski, Public Defender, of Edwardsville, for appellee.
    Robert B. Hoemeke, John M. Hessel, and Joseph E. Martineau, all of Lewis, Rice & Fingersh, of St. Louis, Missouri, and Seyfarth, Shaw, Fair-weather & Geraldson, of New York, New York (David Ross, of counsel), for amicus curiae Sunrise Industries, Inc., d/b/a Alton Telegraph.
    Lori Harris, of New York, New York, for amicus curiae Capital Cities Media d/b/a Belleville News-Democrat.
    Jeffrey Smith, of Baltimore, Maryland, for amicus curiae KTVI, Inc.
    Joseph P. Thornton, of Chicago, for amicus curiae Chicago Tribune Company.
   JUSTICE WELCH

delivered the opinion of the court:

In this consolidated appeal, Multimedia KSDK, Inc., appeals from the denial of its petitions, which were made pursuant to section 9 of the AIDS Confidentiality Act (Ill. Rev. Stat. 1989, ch. 1111/2, par. 7309), for authority to disclose the identity of one “Jane Doe,” an alleged prostitute charged with the offense of criminal transmission of Human Immunodeficiency Virus (HIV). Also participating in this appeal are Jane Doe as appellee and, as amici curiae, Alton Telegraph, Belleville News-Democrat, St. Louis Post-Dispatch, KTVI-TV and Chicago Tribune.

Multimedia KSDK, Inc. (hereinafter KSDK), filed in the circuit court of Madison County on April 25, 1991, its initial application for order authorizing disclosure of HIV test results. The petition alleges that KSDK owns and operates a television station; that Jane Doe, an alleged prostitute, had been charged with criminal transmission of HIV; that Jane Doe’s identity and HIV status had been released to the general public by various law enforcement agencies, including the State’s Attorney, and was therefore known to KSDK; and that the AIDS Confidentiality Act (Act) (Ill. Rev. Stat. 1989, ch. lll1/2, par. 7301 et seq.) prohibits the disclosure by any person, including a corporation, of the results of an HIV test of another unless authorized by a court order based upon a compelling need for such disclosure. The petition further alleges that, based upon Jane Doe’s occupation as a prostitute, a compelling need exists to release her name to the general public in the interest of public health and welfare, so that those persons who had engaged in high-risk activity with Jane Doe would know of their exposure. The petition prays for an order authorizing KSDK to disclose the identity and HIV status of Jane Doe in its news reports.

Hearing was held on the petition on April 29, 1991, and a written order denying the petition was filed that date. In its order, the court found that the prior improper disclosure of the identity of Jane Doe by other media and individuals did not provide a basis under the Act for further disclosure and that the Act is intended to protect the privacy of those individuals who are tested for HIV and to encourage others to undergo such testing. KSDK filed a notice of appeal from this order.

On May 24, 1991, KSDK filed a second application for order authorizing disclosure of HIV test results. This petition repeated the allegations of the first petition, but also alleged that Jane Doe had left the medical-treatment facility where she had been confined, that her whereabouts were unknown, but that she was reportedly planning to return to her occupation as a prostitute, underscoring the compelling need for disclosure.

The petition came on for hearing on June 12, 1991. The court denied the petition. KSDK filed a notice of appeal from this order as well. The two causes were consolidated by this court for purposes of appeal.

KSDK’s argument on appeal is essentially that the trial court erred in denying its petition because the interests of public health and welfare, which will be furthered by disclosure because those individuals who had engaged in high-risk activity with Jane Doe could seek testing and treatment, outweigh the privacy interests of Jane Doe. KSDK also argues that disclosure of Jane Doe’s identity is consistent with the purpose and provisions of the AIDS Confidentiality Act in that disclosure would notify those who had engaged in high-risk activity with Jane Doe that testing was necessary.

Appellee argues that the purpose of the AIDS Confidentiality Act is to encourage testing for the HIV virus by ensuring that the results of such tests shall remain confidential, thus implementing a scheme to help combat the spread of the virus. Disclosure is only permitted upon a showing of “compelling need,” which appellant here has failed to show.

Amici argue that the AIDS Confidentiality Act does not apply to prohibit disclosure of the identity of an individual who has been charged with the criminal offense of criminal transmission of the HIV virus where that charge is a matter of public record. Amici also argue that, to the extent the AIDS Confidentiality Act applies to bar the publication of information otherwise a matter of public record, it is unconstitutional.

We agree that the AIDS Confidentiality Act does not apply to the instant case, where KSDK sought only to disclose the identity of an individual who had been charged with a criminal offense and that identity was already a matter of public record by reason of the public charge. We therefore vacate the judgment of the circuit court of Madison County which denied the petition of KSDK. We find that the petition properly should have been dismissed.

The AIDS Confidentiality Act was enacted in 1987. Section 2 of that Act explains the reason for its enactment as follows:

“The General Assembly finds that:
(1) The use of tests designed to reveal a condition indicative of Human Immunodeficiency Virus (HIV) infection can be a valuable tool in protecting the public health.
(2) Despite existing laws, regulations and professional standards which require or promote the informed, voluntary and confidential use of tests designed to reveal HIV infection, many members of the public are deterred from seeking such testing because they misunderstand the nature of the test or fear that test results will be disclosed without their consent.
(3) The public health will be served by facilitating informed, voluntary and confidential use of tests designed to reveal HIV infection.” (Ill. Rev. Stat. 1989, ch. lll1/2, par. 7302.)

Thus, the purpose of the Act is to control the spread of the HIV virus by encouraging the public to submit to voluntary testing through an assurance of confidentiality.

Section 9 of the Act provides that “[n]o person may disclose or be compelled to disclose the identity of any person upon whom a test is performed, or the results of such a test in a manner which permits identification of the subject of the test,” except to certain specified persons. One of the specified persons to whom disclosure may be made is:

“(g) A person allowed access to said record by a court order which is issued in compliance with the following provisions:
(i) No court of this State shall issue such order unless the court finds that the person seeking the test results has demonstrated a compelling need for the test results which cannot be accommodated by other means. In assessing compelling need, the court shall weigh the need for disclosure against the privacy interest of the test subject and the public interest which may be disserved by disclosure which deters blood, organ and semen donation and future HIV related testing.
* * *
(v) Upon the issuance of an order to disclose test results, the court shall impose appropriate safeguards against unauthorized disclosure, which shall specify the persons who may have access to the information, the purposes for which the information shall be used, and appropriate prohibitions on future disclosure.” (Ill. Rev. Stat. 1989, ch. 1111/2, par. 7309.)

Section 10 further protects confidentiality by providing that “[n]o person to whom the results of a test have been disclosed may disclose the test results to another person except as authorized by Section 9.” (Ill. Rev. Stat. 1989, ch. 1111/2, par. 7310.) Any intentional or reckless violation of the Act constitutes a Class B misdemeanor (Ill. Rev. Stat. 1989, ch. 1111/2, par. 7312), and any person aggrieved by a violation of the Act is provided with a statutory right of action for damages in addition to any common law remedies (Ill. Rev. Stat. 1989, ch. lll1/2, pars. 7313, 7314).

The petitions filed by KSDK allege that Jane Doe’s identity and HIV status had been disclosed to the general public, including KSDK, by the State’s Attorney and various law enforcement agencies. KSDK took the position that, pursuant to section 10 of the Act, it could only further disclose that information in accordance with section 9 of the Act. Although we, like the trial court, commend KSDK for its responsible and good-faith attempt to abide by the law, we think KSDK’s position is wrong.

According to the petitions filed by KSDK, Jane Doe was charged with the offense of criminal transmission of HIV. That offense constitutes a Class 2 felony. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16.2.) All felonies are to be charged by information or indictment filed in open court and containing the name of the accused. (Ill. Rev. Stat. 1989, ch. 38, pars. 111 — 2, 111 — 3.) Although the record of the criminal proceeding involved in this case is not contained in the record on appeal, we must assume that that proceeding was conducted according to law. Therefore, we must assume that the information or indictment with which Jane Doe was charged with criminal transmission of HIV contained her true name and was filed in open court. It was, therefore, a matter of public record.

Furthermore, both parties to this appeal admit and agree that the instrument with which Jane Doe was charged did not contain a pseudonym and that the State’s Attorney revealed the name of the accused. Thus, again, Jane Doe’s true identity is a matter of public record.

The AIDS Confidentiality Act does not prohibit the disclosure of the identity of an individual who has been charged with a felony offense in open court, a matter clearly of public record. We think the disclosure of the public allegation of criminal activity is quite different from the disclosure of the identity of a person upon whom an HIV test has been performed or the results of such a test. Indeed, in the instant case, KSDK admits that it has no personal knowledge that Jane Doe ever submitted to an HIV test, or the results of such a test, but relies only on the allegations of the Madison County State’s Attorney. KSDK seeks to disclose only that the State’s Attorney of Madison County has alleged that Jane Doe committed the offense of criminal transmission of HIV. The AIDS Confidentiality Act does not apply to prohibit such a disclosure, and the trial court should have dismissed the petitions of KSDK.

Finally, because we find that the AIDS Confidentiality Act does not apply in the case at bar, we need not address the question of its constitutionality.

For the foregoing reasons the judgment of the circuit court of Madison County is vacated and, pursuant to power granted to us by Supreme Court Rule 366(a) (134 Ill. 2d R. 366(a)), the petition of KSDK is hereby dismissed.

Vacated; petition dismissed.

HARRISON and HOWERTON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    RICHARD C. COSEY et al., Plaintiffs-Appellees, v. METRO EAST SANITARY DISTRICT, Defendant and Third-Party Plaintiff-Appellant (Pfizer Pigments Incorporated, Third-Party Defendant and Counterplaintiff-Appellee and Cross-Appellant; Rodney Hunt Company, Third-Party Defendant and Counterdefendant-Appellee and Cross-Appellee; The Village of Sauget et al., Third-Party Defendants and Appellees).
    Fifth District
    No. 5 — 90—0402
    Opinion filed November 14, 1991.

      Walter C. Brandon, Jr., of Cueto & Cueto, Ltd., of Belleville, for appellant.
    Eric C. Young and Edward L. Adelman, both of Dunham, Boman & Leskera, of East St. Louis, for appellee Rodney Hunt Company.
    Thompson & Mitchell, of Belleville (Thomas E Hennessy III and Jeanne Philips-Roth, of counsel), for appellee Pfizer Pigments, Incorporated.
    Charles J. Kolker, of Belleville, for appellees Richard C. Cosey et al.

   JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiffs (hereinafter referred to as Cosey) filed a class action to recover damages for personal injuries and property losses from the Metro East Sanitary District (Metro) after the Mississippi River flooded southern East St. Louis in October 1986. Metro filed a third-party complaint against the City of East St. Louis, the Village of Sauget, Pfizer Pigments, Inc., Ulmer Equipment Company, and the Rodney Hunt Company (Hunt), manufacturer of the allegedly faulty sluice gate which precipitated this cause of action. Metro’s complaint against Hunt alleged in part that Hunt breached:

“a) An implied warranty of fitness for a particular purpose (that is, that the sluice gate would be able to withstand 44.0’ head of pressure);
b) An express warranty that the sluice gate would have a useful life, and would function properly, for 50 years;
c) An implied warranty of merchantability.”

Metro’s prayer for relief prayed:

“[TJhat — if the plaintiffs recover a judgment against it — it be granted a judgment against the third-party defendant, Rodney Hunt Company, a Massachusetts corporation, and Ulmer Equipment Company, a Missouri corporation, in an amount commensurate with the third-party defendants’ relative degrees of fault in causing the alleged injuries and damages of the plaintiffs.”

Hunt was not named as a primary defendant by the plaintiff class.

On May 24, 1990, the trial court approved a settlement between Hunt and the plaintiff class. Counsel for Metro argued that Hunt could not be discharged under the Contribution Act (Ill. Rev. Stat. 1989, ch. 70, par. 301 et seq.) because Metro’s third-party complaint against Hunt included a count sounding in contract. Pfizer Pigments, Inc. (Pfizer), whose cross-claim against Hunt incorporated the contract claim in Metro’s complaint against Pfizer, voiced a similar objection to the dismissal of its cross-claim against Hunt. The trial court overruled the objections and relieved Hunt from all liability for contribution to Metro and Pfizer by dismissing all pending third-party complaints against Hunt with prejudice. Metro appeals from the trial court’s dismissal of its third-party complaint, and Pfizer Pigments, Inc., appeals from the court’s dismissal of all counts of its cross-claim against Hunt.

Both Metro and Pfizer raise the issue of whether a third-party complaint and/or a cross-claim which sounds in contract may be dismissed pursuant to the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1989, ch. 70, par. 301 et seq.) when the third-party defendant agrees to settle with the primary plaintiffs. To address this issue we must examine the language of the Contribution Among Joint Tortfeasors Act (Contribution Act):

“§1. This Act applies to causes of action arising on or after March 1, 1978.
§2. Right of Contribution, (a) Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.
(b) The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is liable to make contribution beyond his own pro rata share of the common liability.
(c) When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater.
(d) The tortfeasor who settles with a claimant pursuant to paragraph (c) is discharged from all liability for any contribution to any other tortfeasor.
(e) A tortfeasor who settles with a claimant pursuant to paragraph (c) is not entitled to recover contribution from another tortfeasor whose liability is not extinguished by the settlement.
(f) Anyone who, by payment, has discharged in full or in part the liability of a tortfeasor and has thereby discharged in full his obligation to the tortfeasor, is subrogated to the tortfeasor’s right of contribution. This provision does not affect any right of contribution nor any right of subrogation arising from any other relationship.
§3. Amount of Contribution. The pro rata share of each tortfeasor shall be determined in accordance with his relative culpability. However, no person shall be required to contribute to one seeking contribution an amount greater than his pro rata share unless the obligation of one or more of the joint tortfeasors is uncollectable. In that event, the remaining tortfeasors shall share the unpaid portions of the uncollectable obligation in accordance with their pro rata liability.
If equity requires, the collective liability of some as a group shall constitute a single share.
§4. Right of Plaintiff Unaffected. A plaintiff’s right to recover the full amount of his judgment from any one or more defendants subject to liability in tort for the same injury to person or property, or for wrongful death, is not affected by the provisions of this Act.
§5. Enforcement. A cause of action for contribution among joint tortfeasors may be asserted by a separate action before or after payment, by counterclaim or by third-party complaint in a pending action.” Ill. Rev. Stat. 1989, ch. 70, pars. 301 through 305.

Hunt argues that the settlement agreement was entered into based on the language of the Contribution Act and the rule that contribution actions are barred against a third-party defendant who settles directly with the plaintiff. (See Wilson v. Hoffman Group, Inc. (1989), 131 Ill. 2d 308, 546 N.E.2d 524.) Hunt cites Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382, in support of its assertion that all contribution actions against Hunt are barred as a result of the settlement.

In Doyle the supreme court held that the immunity of an employer from an action by an injured employee provided by the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, pars. 138.5(a), 138.11) did not bar an action for contribution against the employer by a third party who was partially responsible for the employee’s injury. The court held that such a result was consistent with the intent of the contribution statute: to reach anyone who is culpable regardless of whether they have been immunized from a direct tort action by some special defense or privilege. Thus, the court held “[t]he potential for tort liability [against the employer] exists until the defense is established.” Doyle, 101 Ill. 2d at 10-11, 461 N.E.2d at 387.

The term “subject to liability in tort” continues to be broadly interpreted:

“The Act expressly conditions the right to contribution upon a shared liability in tort ***. [Citation.] Although not sued in tort, appellee herein clearly qualified as a party potentially ‘liable in tort’ for Christopher’s death.” (Emphasis added.) Doellman v. Warner & Swasey Co. (1986), 147 Ill. App. 3d 842, 848, 498 N.E.2d 690, 695.

Hunt argues that like Doyle and cases following it, the term “subject to liability in tort” is the key in the instant case. We disagree. The cases Hunt relies on focus upon the interpretation of that term as it is utilized in section 2(a) of the Contribution Act. (Ill. Rev. Stat. 1989, ch. 70, par. 302(a).) The question in those cases applying the term “subject to liability in tort” is whether or not a third-party complaint states a cause of action for contribution. The question which those cases do not address, and which is the subject of this appeal, is whether a third-party complaint or cross-claim which seeks recovery based on contract is dischargeable pursuant to the Contribution Act.

We believe the focus of this inquiry is the language in section 2(d) of the Contribution Act:

“(d) The tortfeasor who settles with a claimant *** is discharged from all liability for any contribution to any other tortfeasor.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 70, par. 302(d).)

Contribution is predicated upon tort, not contract, liability. (See Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197.) Contribution is a statutory remedy which involves a sharing of payment of damage awards and is available to all parties who are subject to liability in tort arising out of the same injury. (Hennepin Drainage & Levee District v. Klingner (1989), 187 Ill. App. 3d 710, 711, 543 N.E.2d 967, 968.) Those counts in Metro’s complaint and Pfizer’s cross-claim which allege that Hunt breached contractual obligations also pray that they be awarded judgment against Hunt pursuant to the Contribution Act. Hunt argues that by pleading in this fashion, Metro and Pfizer have agreed to be barred by the terms of the Contribution Act. Metro and Pfizer argue that the assertion of entitlement to contribution in those counts sounding in contract arise from the contractual relationship between the parties. They contend that the liability, if any, imposed on Hunt as a consequence of those counts will be the result of a breach of contract, not of tortious conduct.

The trial court found that the counts sounding in contract are in fact actions for contribution. The counts which Metro and Pfizer claim should not have been dismissed refer to the Contribution Act and request relief based only on contribution. As now pled, the trial court did not err in regarding the counts as claims for contribution and dismissing them on that basis. (See Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill. 2d 245, 527 N.E.2d 1248.) However, the trial court erred in not allowing Metro and Pfizer leave to file amended pleadings alleging their right to recover based on contract and not the Contribution Act. In ruling on a motion to dismiss, all well-pleaded facts within a complaint, as well as all reasonable inferences which can be drawn from those facts, must be regarded as admitted and true. (Basler v. Webb (1989), 188 Ill. App. 3d 178, 544 N.E.2d 60.) In view of the statutory directive in section 2 — 603(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 603(c)) that “[p]leadings shall be liberally construed with a view to doing substantial justice between the parties,” we find that the trial court erred in not granting leave to Metro and Pfizer to amend their pleadings.

Based on the foregoing, we reverse and remand this case with instructions to the trial court that the plaintiffs be given leave to amend their complaint and cross-claim against Hunt. We note that insofar as the implied warranty claims are concerned there is authority which suggests that such claims are actually based on tort and not contract. (See Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill. 2d 245, 527 N.E.2d 1248; Maxfield v. Simmons (1983), 96 Ill. 2d 81, 449 N.E.2d 110.) But we are unaware of any similar authority with regard to express warranty claims.

We will also address one final argument raised by Hunt and the plaintiff: whether Metro and Pfizer waived their challenge to the good faith of the underlying settlement by not raising the issue on appeal. Settlement is a goal of the Contribution Act. (Ill. Rev. Stat. 1989, ch. 70, par. 301 et seq.; Rakowski v. Lucente (1984), 104 Ill. 2d 317, 325, 472 N.E.2d 791, 795.) Once the settling parties represent to the court that they have reached a good-faith settlement and present its terms to the court, a presumption of validity arises and the burden of proof on the issue of good faith shifts to the party challenging the good-faith nature of the settlement. Pritchard v. SwedishAmerican Hospital (1990), 199 Ill. App. 3d 990, 996-97, 557 N.E.2d 988, 992.

Metro and Pfizer challenged the settlement in the trial court. The settlement agreement provided in pertinent part:

“[Fjollowing final approval by the Court of the settlement, jointly move for a dismissal with prejudice of Rodney Hunt Company as a Third Party Defendant in the consolidated class actions and further move for an Order discharging Rodney Hunt Company from all liability for contribution to others as set forth in the Contribution Statutes. The plaintiffs and Third Party Defendant will move for an order finding this settlement to be a good faith settlement under Chapter 70, Subsection 301 et seq., Ill. Rev. Stat. [sic].” (Emphasis added.)

The trial court entered an order approving the settlement agreement. On the same day that order was entered the court entered an order which provides in part:

“[T]he motion of *** Hunt Company for an order discharging it from all liability for any contribution to others including, but not limited to Metro *** and Pfizer *** pursuant to the provisions of Chapter 70, Section 301, et seq., Ill. Rev. Stat., is hereby GRANTED and all pending Third Party Complaints and contribution claims against Rodney Hunt Company are dismissed with prejudice.”

Metro and Pfizer do not contest the dismissal of their tort-based contribution claims against Hunt, nor do they contest the approval of the amount of the settlement agreement. Metro and Pfizer appeal from the court’s order dismissing those counts seeking recovery in contract, which was entered subsequent to the order approving the settlement. There is no merit to Hunt’s and plaintiffs’ argument that this issue was waived.

In conclusion, we reverse and remand this cause to the circuit court of St, Clair County.

Reversed and remanded.

HOWERTON and LEWIS, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES C. FERREE, Defendant-Appellant.
    Fifth District
    No. 5 — 90—0128
    Opinion filed October 9, 1991.

      Daniel M. Kirwan and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Darrell Williamson, State’s Attorney, of Chester (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The defendant, Charles C. Ferree, an inmate of the Menard Correctional Center in Randolph County, was convicted of unlawful possession of a weapon by a person in the custody of the Department of Corrections Facility (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1.1(b)). He was sentenced to seven years’ imprisonment to be served consecutively to his sentence from Cook County which he was serving at the time of the current offense. The defendant raises only one issue for our consideration: whether the court erred in refusing to instruct the jury on the affirmative defense of necessity.

At trial, the State presented the testimony of three correctional officers who were directly involved in the incident. Pinkie Vernon Dotson testified that on July 9, 1989, at approximately 4:45 p.m., 10 correctional officers were conducting a pat search of the inmates, who were moving from one cellhouse to the dining hall, to determine if they had contraband or anything they were not supposed to have. Dotson searched defendant and found a solid object in his pants. When he tried to retrieve the object, defendant brushed his hand away. After two other correctional officers came to his assistance, Dotson reached down inside defendant’s belt line and pulled out a homemade knife, which was made out of a flat piece of steel. The knife was about one-half inch wide and GVa inches long. One end of the knife had been taped to make a handle, and the other end was inside a sheath made out of tape. Prior to July 9, 1989, Dotson had been involved in other searches during which other correctional officers have found knives and other contraband.

Menard Correctional Center Lieutenant Scott McKee testified that on July 9, 1989, at approximately 4:45 p.m., he was supervising the shakedown of inmates when Dotson advised him that defendant had a knife or similar object in his pants and would not let Dotson remove it. At McKee’s instruction, defendant raised his hands, and Dotson removed a homemade weapon from inside defendant’s pants. McKee handcuffed defendant and returned him to his cell. McKee also testified that during a year’s time hundreds of weapons are confiscated from inmates and that correctional officers do not possess weapons while working on the ground.

Menard Correctional Center Captain Danny Jaimet testified that on July 9, 1989, at approximately 4:45 p.m., he observed Dotson remove the weapon from defendant’s pants. While working at Menard, Jaimet had personally found numerous weapons and testified that, in some cases, weapons are closely associated with gang activity. He also stated that the Latin Kings are one of the well-organized gangs and that a person, especially a young white man, leaving a gang without its permission could be in serious trouble.

Defendant, who had been sentenced for burglary and theft of an automobile, testified that while he has been in the Department of Corrections he had been a member of the Latin Kings. He joined during the fall of 1985; however, at the time of the offense he was no longer a member of that gang. He had joined the gang because he had been threatened by “a lot of people” who were trying to take his possessions such as cigarettes or groceries. If one did not allow them to take the possession, the other inmates would beat or sexually molest that person. After one such attack at Statesville prison the defendant went into protective custody. Other inmates usually did not bother Latin Kings’ members. He first tried to resign from the Latin Kings during the summer of 1986, but they forced him back into the gang. On this occasion he did not ask for the gang’s permission to quit. He was scheduled to be released from prison on January 5, 1990, and believed that if he stayed in the gang, it would require him to perform a task that would result in not being released. While at Menard, he has completed his high school education and has worked on tables in the kitchen, as a teacher’s aide, and as a night porter.

Defendant identified a note that he received at approximately 3:30 p.m. on July 9, 1989. The note was folded and thrown into his cell while he was watching television; therefore, he did not see the person who threw the note. The note stated: “I know your pretty ass no longer belongs to the kings, so when the doors roll, your ass is mine, Punk.” He explained that the phrase “when the doors roll” refers to the time when the inmates are allowed out of their cells to be taken to eat. Shortly after receiving the note, the doors were rolled open. He walked across to one of the air vents where he knew a knife was kept and took the knife which Dotson subsequently found in his possession. He took the note seriously because he had observed one inmate killed, supposedly by the Latin Kings. Until receiving the note, he did not fear for his life. After resigning from the gang, he possessed no weapon other than the one found by Dotson.

Defendant explained that the reason he did not notify a guard of the threatening note was because there was only one guard in the sergeant’s office. The gangs have a security line, and if a nongang member tried to get inside the security line that person would be jumped. He did not see the 10 correctional officers, who were conducting the search, until after he rounded a corner. He admitted that he did not tell the correctional officials of the note and did not tell those conducting the search that he had been threatened. Although he had been in protective custody while in the Statesville prison, he did not request to be placed in protective custody while at Menard. He had been cut but not stabbed in Statesville. He spent two days in Menard prison hospital due to a beating. After the weapon was discovered on him, he did not request to be placed in protective custody, because he had not felt safe previously while in protective custody. The gang had threatened to follow him there and to kill him there. He admitted that he had been in other-than-maximum security prisons but had been returned to maximum security for fighting.

Defendant objected to the State’s instruction which did not contain references to the necessity defense. He tendered the following instructions which were denied by the court:

“Conduct which would otherwise be an offense is justifiable by reason of necessity if the defendant was without blame in occasioning or developing the situation and reasonably believed that such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.” Illinois Pattern Jury Instructions, Criminal, No. 24 — 25.22 (2d ed. 1981).
“To sustain the charge of Unlawful Possession of Weapon by Person in Custody of a Department of Corrections Facility, the State must prove the following propositions:
First: That the defendant knowingly possessed a dagger-like weapon; and
Second: That said defendant was confined in a penal institution which is a facility of the Illinois Department of Corrections at the time of the offense.
Third: That the defendant did not act out of necessity.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” Non-IPI, see Ill. Rev. Stat. 1989, ch. 38, pars. 24 — 1.1(a), (b).

In denying defendant’s tendered instructions, the trial court relied on People v. Govern (1988), 169 Ill. App. 3d 329, 523 N.E.2d 581, and held that defendant was not faced with an emergency situation because he had an opportunity to report the threatening note and did not do so. Further, defendant had not asked to be placed in protective custody.

During jury deliberations, the jury sent three notes to the trial judge. The first read:

“Are we, the jury, allowed to make any recommendation with regard to the defendant’s further sentence or future placement?”

The court responded, “Sentencing of any defendant is sole discretion and duty of the trial judge.” The second note asked, “What is the maximum and minimum sentence for this charge?” The court responded, “It is not the jury’s duty to concern themselves with possible sentences. It is the duty of the jury to determine guilt or innocence.” The last note stated: “We are signing the guilty verdict in spite of our personal evaluations regarding the defendant’s circumstances. However, we are obliged and sworn to so find under the law.” The docket minutes indicate the jury spent 3 hours and 15 minutes deliberating.

Necessity is an affirmative defense with statutory requirements: (1) that the person claiming the defense was without blame in occasioning or developing the situation; and (2) that the person reasonably believed that his conduct was necessary to avoid a greater public or private injury than which might reasonably have resulted from his conduct. (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 13.) In order to properly raise the affirmative defense of necessity, the defendant must present “some evidence” in support of the claim. (People v. Unger (1977), 66 Ill. 2d 333, 338, 362 N.E.2d 319, 321.) In general, a defendant is entitled to have the jury instructed on the defense of necessity when evidence, sufficient to raise a reasonable doubt as to guilt, has been introduced that the accused, without blame in occasioning or developing the situation, reasonably believed his conduct, which would otherwise be an offense, was necessary to avoid a public or private injury greater than the injury which might have resulted from his own conduct. (People v. Newbolds (1990), 204 Ill. App. 3d 952, 954, 562 N.E.2d 1050, 1052.) Once some evidence in support of the defense has been presented, the State has the burden to disprove the defense beyond a reasonable doubt. People v. Tackett (1988), 169 Ill. App. 3d 397, 402, 523 N.E.2d 647, 650.

In People v. Unger (1977), 66 Ill. 2d 333, 362 N.E.2d 319, the Illinois Supreme Court discussed factors which are relevant in assessing a claim of necessity to charges of escape from prison. Although an escape charge necessarily involves different considerations from charges of unlawful possession, three of the factors discussed in Unger are especially pertinent here. Those factors include: (1) the prisoner is faced with a specific threat of death, forcible sexual attack, or substantial bodily injury in the immediate future; (2) there is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaint illusory; and (3) there is no time or opportunity to resort to the courts. (Unger, 66 Ill. 2d at 344, 362 N.E.2d at 323, citing People v. Lovercamp (1974), 43 Cal. App. 3d 823, 831-32, 118 Cal. Rptr. 110, 115.) These factors are not to act as an exclusive determination, but rather go to the weight and credibility of the evidence presented in support of an affirmative defense of necessity. Unger, 66 Ill. 2d at 342, 362 N.E.2d at 323.

The record before us presents “some evidence” in support of the necessity defense. The note posed a specific threat of death or great bodily harm to defendant in the immediate future. He testified that once the cell doors were opened he would be subject to attack. He explained that there was no time for a complaint to the authorities, because only one guard, who was unarmed, was visible and that guard could not be reached due to the “security line” of inmates. It was not until after he possessed the shank and rounded the corner that he saw more correctional officers. Lastly, there was no opportunity to resort to the courts as the threat was made only an hour before defendant obtained the weapon. Although the State’s cross-examination of defendant created doubt about the defense of necessity, he was entitled to have the jury consider the defense on the basis of his testimony. It is clear that he introduced some evidence to support the defense of necessity. As previously mentioned, “some evidence” is sufficient to justify the giving of an appropriate instruction. (See Unger, 66 Ill. 2d at 341, 362 N.E.2d at 323.) Further, the jury’s notes suggest that they may have given some credence to defendant’s testimony. We conclude that the trial court erred in failing to instruct the jury on the necessity defense.

The State also argues that the affirmative defense of necessity cannot be used to negate the intent requirement of the crime because section 24 — 1.1(b) provides, in part, that a person who possesses a weapon while incarcerated in a Department of Corrections facility is guilty of a crime, “regardless of the intent with which he possesses it.” A similar argument was rejected in People v. Govan (1988), 169 Ill. App. 3d 329, 523 N.E.2d 581; therefore, we need not further discuss this contention by the State.

The State relies on People v. Govan (1988), 169 Ill. App. 3d 329, 523 N.E.2d 581, and People v. Tackett (1988), 169 Ill. App. 3d 397, 523 N.E.2d 647. Both Tackett and Govan were inmates of the Pontiac Correctional Center, and both raised the necessity defense to charges of unlawful possession of weapons by a felon. They tendered instructions on the necessity defense which were rejected by the court, but the facts of those cases are clearly distinguishable. Tackett possessed his weapon for over a year and carried it whenever he thought necessary, while Ferree testified that he only possessed the weapon after receiving the threatening note. Tackett had never been seriously injured while Ferree had been cut and was hospitalized for two days as the result of a beating. (See Tackett, 169 Ill. App. 3d at 402-03, 523 N.E.2d at 650.) In Govan, the inmate received the threatening note three or four weeks prior to being found in possession of his weapon, while Ferree testified he obtained the weapon, which had been in a “public place,” almost immediately prior to being found with it.

For the foregoing reasons, this court concludes that defendant produced sufficient evidence to require that the jury be instructed on the necessity defense. The trial court erred in refusing those instructions; therefore, the judgment of the circuit court is reversed and this cause is remanded for a new trial.

Reversed and remanded.

GOLDENHERSH and HOWERTON, JJ., concur.


author: JUSTICE McCUSKEY

text:
    CHESTER A. SHEA, Petitioner-Appellant, v. PAUL EDWARDS et al., Respondents-Appellees.
    Third District
    No. 3 — 91—0173
    Opinion filed October 31, 1991.
    Chester A. Shea, of Joliet, appellant pro se.

    Roland W. Burris, Attorney General, of Springfield (Claudia Sainsot, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The pro se petitioner, Chester A. Shea, filed a petition for a writ of mandamus and a writ of habeas corpus. He sought relief from disciplinary actions taken against him by various officials of the Illinois Department of Corrections (DOC). The disciplinary actions had resulted in the revocation of one year of his good-time sentence credits, his segregation for one year, and his demotion to C grade classification. The respondents, James W. Fairman, warden of the Joliet Correctional Center, Kenneth McGinnis, Director of the Illinois Department of Corrections, and Paul Edwards and Marilyn Coutee, correctional officers, moved to dismiss the petition, contending that it failed to state a claim upon which relief could be granted. The trial court granted the motion to dismiss. The petitioner appeals. We reverse.

The record shows that on January 4, 1990, Shea was issued a prison disciplinary report charging him with violating disciplinary rules prohibiting fighting and creating a dangerous disturbance. The report indicated that the dangerous disturbance occurred at 2:05 p.m. on January 2, 1990, and informed Shea as follows:

“You Shea are being charged with the above violation due to the fact that you were identified by picture photos as being involved in the fight on 6 Gallery of the West cellhouse on the above date and time at that time you received injuries.”

Shea later received an amended disciplinary report. In it he was advised as follows:

“On the above date, time, and location you inmate Shea *** were identified by picture photo as participating in a dangerous disturbance and fight, on 6 Gallery with approx. 20-25 inmates involved. The incident caused several inmates to be treated for injuries and some to an outside hospital. This action resulted in an institutional lockdown of the west cellhouse.”

The other participants in the alleged disturbance were not identified.

At the hearing before the adjustment committee, Shea presented two statements in response to the original and amended reports outlined above. In both statements he denied the charges and requested the name of the unnamed source who had identified him from the photograph and the names of the inmates he had allegedly fought with. He also asked for more time to prepare his defense. His requests were denied.

The committee’s summary indicated that Shea was identified from a photograph by a confidential witness who saw him help another inmate, Davidson, fight a third inmate. Based on this statement and Shea’s admission that he was at the scene of the incident on 6 Gallery at the time in question, the adjustment committee concluded that Shea had participated in the fight. The name of the confidential source was deleted from Shea’s copy of the committee’s summary.

Following the adjustment committee’s determination, Shea filed a grievance with the grievance committee in which he sought expungement of his disciplinary reports. He presented inmate Davidson’s affidavit in which Davidson stated that Shea did not help him in the fight. The grievance officer reviewed the committee’s report and Davidson’s statement, and concluded that the violations had occurred as reported. The Administrative Re-view Board affirmed this decision.

On appeal, Shea argues that the prison officials failed to comply with several DOC rules and regulations for conducting disciplinary hearings. Among other things, he contends that the failure of the adjustment committee to disclose the name of the confidential witness violated the DOC’s regulations and therefore his right to due process. We agree.

Mandamus is an appropriate remedy to compel the Department of Corrections to follow its own regulations. (Taylor v. Franzen (1981), 93 Ill. App. 3d 758, 417 N.E.2d 242.) In Thompson v. Lane (1990), 194 Ill. App. 3d 855, 551 N.E.2d 731, the instant issue was raised concerning the nondisclosure of a confidential source on the two petitioners’ disciplinary tickets. The Thompson court held that if the DOC uses a confidential source and it wishes to rely on safety concerns for not disclosing the confidential source’s identity, it must say so on the face of the inmate’s disciplinary ticket.

In the instant case, Shea was not given his accuser’s name and the DOC did not provide any reason for its failure to disclose this information. Accordingly, Shea is entitled to a new disciplinary hearing.

We note in so finding that Clayton-El v. Lane (1990), 203 Ill. App. 3d 895, 561 N.E.2d 183, cited by the instant respondents, is not dis-positive. In Clayton-El, the inmate’s disciplinary ticket specifically informed him that he had been identified as a participant in a murder by a confidential source whose identity was being withheld for security reasons. The ticket further stated the name of an investigator the inmate could contact for the specific statements of the confidential witness. Thus, enough information concerning the confidential source was provided to comport with due process in that case.

Our resolution of this issue makes it unnecessary to address the petitioner’s remaining claims.

For the foregoing reasons, the order of the circuit court of Will County dismissing the petitioner’s petition for a writ of mandamus is reversed. There being no issue remaining for the circuit court, we find no need to remand this cause to it. Pursuant to our authority under Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366), we hereby order the DOC to conduct a rehearing on the petitioner’s disciplinary reports, or in the alternative, to restore the petitioner’s lost good-time credits and rescind his segregation and demotion in grade.

Reversed.

STOUDER, P.J., and GORMAN, J., concur.


author: JUSTICE SLATER

text:
    EZRA RUMBOLD et al., Plaintiffs-Appellants, v. THE TOWN OF BUREAU et al., Defendants-Appellees.
    Third District
    No. 3 — 90—0637
    Opinion filed October 31, 1991.

      Linn C. Goldsmith, of Boyle, Goldsmith, Shore & Bolin, of Hennepin (Roger C. Bolin, of counsel), for appellants.
    Herbolsheimer, Lannon, Henson, Duncan & Reagan, of La Salle (Douglas A. Gift, of counsel), for appellees.
   JUSTICE SLATER

delivered the opinion of the court:

Plaintiffs appeal from the order of the circuit court dismissing plaintiffs’ third amended complaint with prejudice. Although not specifically stated, we view the dismissal to be pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2— 615).

Plaintiffs, Ezra and Herb Rumbold, are engaged in the business of farming, which necessitates the transportation of grain over Bureau Township roads. On February 2, 1987, the Town of Bureau adopted a resolution restricting the weight of vehicles upon township roads to 16,000 pounds from February 1 to May 1 and directed the township highway commissioner to erect and maintain signs at each end of any affected highway within the township. The resolution further adopted a schedule of fines to be assessed drivers or owners of vehicles violating the resolution which allowed, in some instances, fines in excess of $500.

On February 17, 1987, plaintiffs were in the process of hauling grain to market across Bureau Township roads. At this time, plaintiffs were unaware of the township resolution of February 2, 1987, as no signs indicating the weight limits were erected nor was any publication notice made of the resolution. When the first of plaintiffs’ trucks proceeded onto the township road, it was stopped and detained by an apparent agent of defendant highway commissioner. Allegedly, the driver of this truck owned by Ezra Rumbold was not allowed to communicate by radio to warn the driver of the second truck of the weight limitation, and when the second truck proceeded onto the township road it was stopped and detained as well.

Plaintiff, Ezra Rumbold, was subsequently charged by the township highway commissioner with violating the township weight restriction resolution. The fines sought in two separate charges totaled $16,500. Plaintiffs further allege that while Herb Rumbold was investigating the matter he was told by a township trustee that he had been “set up” by the township highway commissioner, and that as a result of that situation, Herb suffered a massive coronary, was hospitalized and underwent cardiac surgery.

The criminal charges against Ezra were dismissed by the circuit court on December 2, 1987. In its decision the court noted that the Town of Bureau had no authority to enact the resolution, failed to properly publish the resolution, failed to install the proper signs, and had no authority to impose a fine in excess of $500. This decision was not appealed.

Plaintiffs subsequently filed this action against the defendants under section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1988)) for deprivation of their Federal constitutional and statutory rights and for intentional infliction of emotional distress. Plaintiffs’ third amended complaint was dismissed with prejudice, apparently for failure to state a cause of action.

We therefore examine the allegations contained in plaintiffs’ complaint, mindful that a complaint should not be dismissed unless it appears that plaintiffs can prove no set of facts that would entitle them to relief. Little v. City of North Miami (11th Cir. 1986), 805 F.2d 962, 965.

Count I of plaintiffs’ complaint is directed against the Town of Bureau on behalf of Ezra Rumbold and alleges:

“1. That at all times relevant hereto, the plaintiff, Ezra Rumbold, was the owner of two certain International Harvester semi-tractor trailers customarily used to transport grain along and upon the highways of this state.
2. That at all times relevant hereto, the plaintiff, Herb Rumbold, was a farmer operating a grain farm in Bureau Township, Bureau County, Illinois whose grain was in the process of being transported to market at the time of the occurrence herein concerned.
3. That on or about February 2, 1987 the defendant, Town of Bureau, a Municipal Corporation, adopted a certain resolution purporting to restrict the use of public highways by restricting the weight limits of vehicles on township roads within Bureau Township, Illinois. A true, correct and genuine copy thereof is attached hereto, marked Exhibit ‘A’ and made a part hereof.
4. That between late January, 1987 and February 17, 1987 and on several different occasions between said dates, Herb Rumbold caused grain to be transported from his farm in Bureau Township, Illinois over and across public highways within Bureau Township utilizing the plaintiff’s, Ezra Rumbold, aforesaid semi-tractor trailers.
5. That the shipments of grain, as aforesaid, by Herb Rum-bold were made with the knowledge of the defendant, Town of Bureau, a Municipal Corporation.
6. That the shipments of grain, as aforesaid, by Herb Rum-bold were made with the apparent acquiescence of the defendant, Town of Bureau, a Municipal Corporation.
7. That on February 17, 1987 Herb Rumbold was in the process of transporting grain from his farm and was, at that time, using the aforementioned semi-tractor trailers owned by the plaintiff, Ezra Rumbold, for the purpose of hauling said grain to market.
8. That on two occasions on February 17, 1987, to-wit: 4:15 P.M. and 5:25 P.M., the grain being transported by Herb Rum-bold in the aforesaid semi-tractor trailers owned by the plaintiff, Ezra Rumbold, were caused to be stopped upon the highway, diverted to another location and the vehicles and the grain impounded and held without the consent of the plaintiff, Ezra Rumbold, all purportedly because of an alleged violation of the aforesaid resolution adopted by the defendant, Town of Bureau, a Municipal Corporation.
9. That when the first of the aforesaid two vehicles was halted at 4:15 P.M., the driver thereof was prevented from radioing or otherwise contacting the driver of the second vehicle in order to advise him and Herb Rumbold and/or Ezra Rumbold that it was not permissible to haul grain over and across said highway at that time. The second of the aforesaid two vehicles consequently completed its loading operations and proceeded upon the highway and was then halted at 5:25 RM.
10. That the plaintiff, Ezra Rumbold, was afforded no notice by the defendant, Town of Bureau, with respect to the adoption of the aforesaid resolution or with regard to the intention to halt the transportation of grain, to divert the same and the vehicles containing the grain or to impound the vehicles and the grain.
11. That on or about February 19, 1987 the plaintiff, Ezra Rumbold, was named a defendant in two criminal cases filed in the Circuit Court of Bureau County, Illinois as Case Numbers 87 — -TR—806 and 87 — TR—807, both of which were filed on behalf of the defendant, Town of Bureau, a Municipal Corporation, pursuant to citations signed by Richard Eckberg. The combined fíne sought from plaintiff, Ezra Rumbold, on account of those two cases was $16,500.00, all due or allegedly due by reason of the violation of the aforesaid resolution. As a direct and proximate result of the actions of the defendant, Town of Bureau, the plaintiff Ezra Rumbold, has been compelled to defend himself in those causes of action, he has suffered embarrassment and his reputation has been besmirched by the accusation of the commission of a criminal offense.
12. That the aforesaid resolution is invalid. Indeed, said resolution was declared invalid by the ruling of the Circuit Court of Bureau County, Illinois in the aforesaid two causes of action and a written opinion to that effect was rendered December 2, 1987 which opinion and determination of the court was not challenged or appealed by the defendant, Town of Bureau, a Municipal Corporation. A true, correct and genuine copy of said opinion is attached hereto, marked Exhibit ‘B’ and made a part hereof.
13. That by reason of the premises the plaintiff, Ezra Rum-bold, has been wrongfully deprived of his property and the free and lawful use thereof and, in addition, the free and lawful use of the public highways by the plaintiff has been denied, all contrary to the provisions of the Constitution and laws of the State of Illinois and of the United States in violation of Title 42 U.S.C., par. 1983.
14. That the aforesaid action of the defendant, Town of Bureau, a Municipal Corporation, was taken by it under color of statute, custom or usage of the State of Illinois within the meaning and contemplation of the provisions of Title 42, U.S.C., par. 1983.
15. That by reason of the premises, the plaintiff, Ezra Rum-bold, has been compelled to retain attorneys to represent him herein and he has become liable for attorneys fees and court costs.
WHEREFORE, and upon such premises, the plaintiff Ezra Rumbold, prays for judgment in his favor and against the Town of Bureau, a Municipal Corporation, for compensatory damages in an amount in excess of $15,000.00, together with all costs of court and reasonable attorneys fees as provided by the provisions of Title 42, U.C.S., par. 1983.”

To state a claim under section 1983, plaintiffs must allege facts showing that the defendants acted under color of State law and deprived plaintiffs of a right, privilege or immunity protected by the Constitution or laws of the United States. (Little, 805 F.2d at 965.) Local governmental bodies and local officials in their official capacity can be sued under section 1983 when plaintiffs can establish that they have suffered a constitutional deprivation as a result of either “a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers” or a governmental “custom” even though that custom was not formally approved through official channels. Monell v. Department of Social Services (1978), 436 U.S. 658, 690, 56 L. Ed. 2d 611, 635, 98 S. Ct. 2018, 2036.

It is clear that count I sufficiently alleges that the Town of Bureau acted pursuant to an officially adopted ordinance or regulation. Less apparent, however, is the nature of the alleged constitutional deprivation suffered by plaintiff Ezra Rumbold. Count I does not allege that the resolution restricting the weight of vehicles on township roads is unconstitutional but rather that the circuit court of Bureau County found that it was invalid. The circuit court ruled that the Bureau Township Board of Trustees did not have the statutory authority to adopt a resolution affecting township roads, as that authority is vested in the township highway commissioner (see Ill. Rev. Stat. 1987, ch. 121, par. 2 — 213). The court also found that the resolution was invalid because it was not published (see Ill. Rev. Stat. 1987, ch. 139, par. 41). Finally, the court found that the amount of the fines contained in the resolution exceeded any authority the township possessed to impose such fines (see Ill. Rev. Stat. 1987, ch. 139, par. 39.16 (violation of township regulation may not be punished as more than a petty offense); Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 9—1(a)(4) (fine for a petty offense may not exceed $500)).

Liberally construed, count I appears to allege that as a result of the enforcement of the invalid resolution plaintiff Ezra Rumbold’s property was unlawfully seized (paragraph 8 of count I), plaintiff’s reputation was damaged (paragraph 11), and plaintiff was deprived of his property and the “free and lawful use of the public highways” (paragraph 13), all without notice to plaintiff (paragraph 10). With the exception of plaintiff’s claim of damage to his reputation, we believe that these allegations are sufficient to state a cause of action under section 1983 for violation of plaintiff’s rights under the fourth and fourteenth amendments (unreasonable seizures) (see Monroe v. Pape (1961), 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473) and the due process clause of the fourteenth amendment (deprivation of property and the liberty right to intrastate travel) (see Lugar v. Edmonson Oil Co. (1980), 457 U.S. 922, 73 L. Ed. 2d 482, 102 S. Ct. 2744; Lutz v. City of York (3d Cir. 1990), 899 F.2d 255). Plaintiff’s claim of damage to his reputation, since it is unaccompanied by any allegation of damage to a more tangible interest such as employment or livelihood, is insufficient to invoke the protections of the due process clause. (Paul v. Davis (1976), 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155.) We hold, therefore, that the trial court erred in dismissing count I of plaintiffs’ complaint.

Count II is directed against the Town of Bureau on behalf of plaintiff Herb Rumbold and is in all respects identical to count I with two exceptions. Paragraph 13, which alleges wrongful deprivation of property and use of public highways, names Herb Rumbold as the aggrieved party rather than Ezra Rumbold as alleged in count I. In addition, paragraph 11 of count I is replaced by the following allegations in paragraph 11 of count II:

“11. That between February 17, 1987 and February 23, 1987 the plaintiff, Herb Rumbold, repeatedly attempted to determine the basis for the aforesaid action of the defendant, Town of Bureau, and the basis for the fine being sought all by discussing the over-all situation with Richard Eckberg and with members of the Board of Trustees of the defendant, Town of Bureau. The plaintiff, Herb Rumbold, was advised by a member of the Board of Trustees of the Town of Bureau that he was ‘set up by Richard Eckberg.’ That on February 23, 1987 the plaintiff, Herb Rumbold, suffered a massive coronary, was hospitalized and subsequently underwent surgery, all as a direct and proximate result of the aforesaid actions of the defendant, Town of Bureau, a Municipal Corporation.”

We do not consider the allegations above as sufficient to raise any additional claims of constitutional deprivations beyond those asserted in count I. Nevertheless, the allegations contained in count II are sufficient to state a cause of action under section 1983 for unreasonable seizure of plaintiff’s property in violation of the fourth and fourteenth amendments and deprivation of property and the liberty right to intrastate travel in violation of the due process clause of the fourteenth amendment. We find that the trial court erred in dismissing count II of plaintiffs’ complaint.

Count III is directed against Richard Eckberg in his official capacity as highway commissioner of Bureau Township and against the Bureau Township highway commissioner, a municipal corporation, on behalf of Ezra Rumbold. The allegations contained in count III are substantially the same as those contained in count I, except that Eckberg and the Bureau Township highway commissioner, a municipal corporation, are substituted as defendants in place of the Town of Bureau. Since the defendants named in count III are being sued in their official capacities, the analysis of the sufficiency of plaintiff’s cause of action under section 1983 is the same as that in count I, with the same result. We find that the trial court erred in dismissing count III of plaintiffs’ complaint.

Count IV is also directed against Eckberg in his official capacity and against the Bureau Township highway commissioner, a municipal corporation. Herb Rumbold is the named plaintiff in count IV, and the allegations mirror those in count II, with Eckberg as highway commissioner and the Bureau Township highway commissioner, a municipal corporation, substituted as defendants in place of the Town of Bureau. For the reasons previously stated, we find that the trial court erred in dismissing count IV.

Count V is directed against the Town of Bureau, Eckberg as highway commissioner, and the Bureau Township highway commissioner, a municipal corporation, on behalf of Ezra Rumbold. Count V realleges paragraphs 1 through 15 of count I and in addition alleges:

“16. The arrest made by or on behalf of one or both of the aforesaid defendants was illegal. Specifically, the individual, Leslie Wooden, attempting to effect said arrest was not a police officer authorized by law to stop or require the plaintiff to submit to weighing of any of the plaintiff’s vehicles.
17. Said defendants, by or through the said Leslie Wooden, caused plaintiff’s vehicles and grain to be diverted as aforesaid all without actual legal authority but under color of law in violation of Title 42, U.S.C., par. 1983.
18. The plaintiff’s actions and doings, as aforesaid, were made [with] the knowledge and acquiescence of the defendant, Richard Eckberg.”

We believe that count V fails to state a cause of action for two reasons. First, although paragraph 16 refers to an illegal arrest, it does not appear that either Herb or Ezra Rumbold was ever arrested. While paragraph 17 refers to the diversion of plaintiff’s vehicles and grain, this allegation merely duplicates the claim of unreasonable seizure contained in counts I through IV. Second, the allegation that defendants acted “by or through the said Leslie Wooden” appears to be an attempt to premise liability on the basis of respondeat superior. It is clear, however, that municipalities are not subject to liability under section 1983 on that basis. (Monell, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018.) We hold, therefore, that the trial court did not err in dismissing count V of plaintiffs’ complaint.

Count VI is identical to count V except that Herb Rumbold is substituted for Ezra Rumbold as plaintiff. It suffers from the same deficiency as count V and similarly fails to state a cause of action. We affirm the trial court’s dismissal of count VI.

Before considering count VII, we will address defendants’ argument that municipal corporations are not subject to liability for governmental or legislative functions. As authority, defendants cite the Illinois decisions of Resnick v. Michaels (1964), 52 Ill. App. 2d 107, 201 N.E.2d 769, Merrill v. City of Wheaton (1942), 379 Ill. 504, 41 N.E.2d 508, and Forestview Homeowners Association, Inc. v. County of Cook (1974), 18 Ill. App. 3d 230, 309 N.E.2d 763. These cases, however, are not persuasive because they discuss municipal liability under Illinois tort law rather than liability under section 1983.

In Monell v. Department of Social Services (1978), 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018, the Supreme Court overruled its prior decision of Monroe v. Pape (1961), 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473, and held that municipalities are “persons” to whom section 1983 liability applies, thereby extinguishing the prior holding of absolute immunity for municipal corporations. In so holding, the Court determined that a municipality may be liable under section 1983 for injury inflicted by the “execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” (Monell, 436 U.S. at 694, 56 L. Ed. 2d at 638, 98 S. Ct. at 2037-38.) What the Court left undecided, however, was whether a municipality was entitled to any type of qualified immunity.

In Owen v. City of Independence (1980), 445 U.S. 622, 63 L. Ed. 2d 673, 100 S. Ct. 1398, the Supreme Court unequivocally answered the question of municipal corporation liability under section 1983 by determining that a municipality is not entitled to qualified immunity for governmental or discretionary functions. The Court noted that the governmental immunity exception had its roots in the doctrine of sovereign immunity, which had not found favor with the courts. The Court further reasoned:

“More fundamentally, however, the municipality’s ‘governmental’ immunity is obviously abrogated by the sovereign’s enactment of a statute making it amenable to suit. Section 1983 was just such a statute. By including municipalities within the class of ‘persons’ subject to liability for violations of the Federal Constitution and laws, Congress — the supreme sovereign on matters of federal law — abolished whatever vestige of the State’s sovereign immunity the municipality possessed.” Owen, 445 U.S. at 647-48, 63 L. Ed. 2d at 691,100 S. Ct. at 1413.

Similarly, the Court discussed the common law doctrine of immunity for legislative or discretionary functions and noted that this theory had its roots in the principle of separation of powers. The Court stated:

“That common-law doctrine merely prevented courts from substituting their own judgment on matters within the lawful discretion of the municipality. But a municipality has no ‘discretion’ to violate the Federal Constitution; its dictates are absolute and imperative. And when a court passes judgment on the municipality’s conduct in a §1983 action, it does not seek to second-guess the ‘reasonableness’ of the city’s decision nor to interfere with the local government’s resolution of competing policy considerations. Rather, it looks only to whether the municipality has conformed to the requirements of the Federal Constitution and statutes.” Owen, 445 U.S. at 649, 63 L. Ed. 2d at 692,100 S. Ct. at 1414-15.

While denying that any type of immunity exists for municipalities, the Court reiterated that qualified immunity does exist for public officials who have acted in good faith. The rationale is that governmental officials would be deterred from making policy decisions if personal liability threatened the officials’ decision making process. Nonetheless, a municipality may not rely upon the official’s “good faith” immunity as a defense to liability. Owen, 445 U.S. 622, 63 L. Ed. 2d 673, 100 S. Ct. 1398.

It is clear under Owen that the defendant municipal corporations have no immunity. While defendant Eckberg could assert a claim of qualified “good faith” immunity to a suit brought against him in his individual capacity, in this case Eckberg is being sued in his official capacity as highway commissioner. “Since official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent *** local government officials sued in their official capacities are ‘persons’ under §1983 in those cases in which, as here, a local government would be suable in its own name.” (Monell, 436 U.S. at 690 n.55, 56 L. Ed. 2d at 635 n.55, 98 S. Ct. at 2035 n.55.) Moreover, local government officials sued in their official capacities, like the governmental bodies they represent, are not entitled to immunity. (See Owen, 445 U.S. 622, 63 L. Ed. 2d 673, 100 S. Ct. 1398.) None of the defendants, therefore, can escape any potential liability which may exist under counts I through IV on the basis of immunity.

Finally, count VII is directed against the Town of Bureau, Richard Eckberg as highway commissioner, and the Bureau Township highway commissioner, a municipal corporation, on behalf of Herb Rumbold. Count VII, which purports to state a cause of action for intentional infliction of emotional distress, realleges paragraphs 1 through 15 of count II and contains the following additional allegations:

“16. That the plaintiff’s actions and doings, as aforesaid, were made with the knowledge and acquiescence of the defendant, Richard Eckberg.
17. The defendants’ conduct, as aforesaid, was extreme and outrageous. In particular, the defendant, Richard Eckberg, avoided or evaded the plaintiff, Herb Rumbold, on the day of the occurrence herein concerned and/or concealed himself from the plaintiff, although the said Richard Eckberg was well aware that the plaintiff was in the process of hauling grain during the time period in question.
18. Said conduct by the defendants, as aforesaid, was done with the intention of causing the plaintiff severe emotional distress or in such a fashion that the defendants knew or should have known that there was high probability that their conduct would cause severe emotional distress.
19. The defendants’ conduct, as aforesaid, did, in fact, cause the plaintiff to sustain and suffer severe emotional distress in that he suffered a massive coronary within a few days following the issuance of the citations referred to.”

This count was added for the first time in the third amended complaint filed February 21, 1990, roughly three years after the date the alleged events took place. Defendants argue that this new theory of recovery should not relate back to the date of filing of the original pleadings. We disagree. Section 2 — 616 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 616) allows for an amendment of pleadings to add new causes of action so long as the facts giving rise to the new cause of action grew out of the same transaction or occurrence set up in the timely filed original pleading. Thus, the question presented is whether the alleged facts, viewed in a light most favorable to plaintiff, state a cause of action.

In McGrath v. Fahey (1988), 126 Ill. 2d 78, 533 N.E.2d 806, our supreme court set forth the elements giving rise to a cause of action for intentional infliction of emotional distress. First, the conduct of defendant must be extreme and outrageous; second, the defendant must intend to inflict severe emotional distress or know that there is a high probability that his conduct will cause severe emotional distress; and third, the conduct must in fact cause severe emotional distress. Mere insults, threats or annoyances are insufficient to form a basis for a cause of action. The degree of power or authority which the defendant has over the plaintiff, however, is a relevant consideration in determining the severity of the conduct. McGrath, 126 Ill. 2d 78, 533 N.E.2d 806.

From our review of the case law in this area, we believe the facts alleged by plaintiff are insufficient to state a cause of action for the intentional infliction of emotional distress. Here, the defendants certainly were in a position of authority over plaintiff and invalidly used their purported authority to seize plaintiff’s grain. Herb, however, was not the party arrested nor was there continuing conduct on the part of the defendants towards Herb compounding the initial wrong. While prior cases do not discuss the matter at length, causes of action have been stated in previous cases where the alleged outrageous conduct consisted of a series of acts over a period of time, rather than a single occurrence as in this case. (See McGrath, 126 Ill. 2d 78, 533 N.E.2d 806; Van Duyn v. Smith (1988), 173 Ill. App. 3d 523, 527 N.E.2d 1005.) “The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.” (McGrath, 126 Ill. 2d at 86, 533 N.E.2d at 809.) While it certainly cannot be denied that defendant’s conduct caused plaintiff annoyance, inconvenience and insult, we do not believe the facts alleged support a cause of action for intentional infliction of emotional distress.

In summary, we affirm the order of the trial court dismissing counts V, VI, and VII of plaintiffs’ complaint. We reverse, however, the trial court’s dismissal of counts I through IV on the basis that the facts adequately allege a cause of action under section 1983 and we remand for further proceedings.

Affirmed in part; reversed in part and remanded.

GORMAN and HAASE, JJ., concur.


author: JUSTICE GORMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GEORGE MUELLER, Defendant-Appellee.
    Third District
    No. 3 — 91—0285
    Opinion filed October 31, 1991.

      Edward Burmila, Jr., State’s Attorney, of Joliet (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Schenk, Duffy, Quinn, McNamara, Phelan & Carey, of Joliet (Joseph R. Mazzone, of counsel), for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

The defendant, George Mueller, was charged with the offense of driving under the influence of alcohol (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(d)(3)). Following a hearing, the trial court granted defendant’s motion to suppress evidence of his blood-alcohol content. The State appeals the suppression order.

The record shows that the defendant was involved in a serious car accident on May 28, 1989, in the early morning hours. The parties stipulated that, if called to testify, Dr. Farhana Hassan would testify that she was the emergency room physician on duty when the defendant arrived at the hospital around 5 a.m. Furthermore, she would state that she conducted a preliminary physical examination of defendant, declared him a trauma alert, and ordered a trauma profile to be prepared by the hospital laboratory. Finally, she would testify that she notified Dr. John William Bowden, the emergency surgeon, who arrived in 20 minutes and took charge of the defendant’s treatment.

Dr. John William Bowden testified at the suppression hearing that he arrived at the hospital at 5:30 a.m. after having been called as a result of a trauma alert to treat defendant. Dr. Bowden stated that defendant had been seriously injured. Defendant had sustained multiple injuries, most notably facial bone fractures and numerous lacerations. Dr. Bowden testified that, although the injuries were life-threatening, defendant was alert, oriented, and cooperative. Dr. Bowden explained that pursuant to the trauma alert declared by Dr. Hassan, the hospital laboratory analyzed defendant’s blood. When Dr. Bowden took over the case, he believed that the blood-alcohol level was phoned to the emergency room by the laboratory at 5:30 a.m., but he had no independent recollection whether he had directly received this information. The usual procedure in a trauma alert was to phone results immediately from the laboratory to the emergency room. Dr. Bowden did not recall seeing a written copy of the blood-alcohol test. Moreover, he did not recall if a written report of the blood-alcohol analysis was ever placed in defendant’s medical chart at the hospital, but this, too, would have been standard procedure. At some point during the several hours in which he was involved with treating defendant and during which he referred to his chart, Dr. Bowden said he became aware of defendant’s blood-alcohol content, but did not remember exactly when that was. Dr. Bowden stated that the results of the blood-alcohol test were immaterial and inconsequential to his diagnosis and treatment of defendant’s injuries.

Dr. Bowden recognized State’s exhibit No. 1 as a copy of the medical laboratory report from the hospital laboratory. The report includes the results of the blood-alcohol test. Eventually, the report would have become part of the patient’s chart, as per hospital procedure.

State’s exhibit No. 1 indicated on its face that it was prepared on June 17, 1989, by the hospital laboratory. It is the only written record of the blood test.

Based on the foregoing evidence, the trial court granted defendant’s motion to suppress his blood-alcohol test results.

On appeal, the State contends that the trial court erred in granting the defendant’s motion to suppress. At issue is the construction of section 11 — 501.4(a) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.4(a)).

Section 11 — 501.4(a) of the Code provides the following:

“(a) Notwithstanding any other provision of law, the written results of blood alcohol tests conducted upon persons receiving medical treatment in a hospital emergency room are admissible in evidence as a business record exception to the hearsay rule only *** when each of the following criteria are met:
(1) the blood alcohol tests were ordered by a physician on duty at the hospital emergency room and were performed in the regular course of providing emergency medical treatment in order to assist the physician in diagnosis or treatment;
(2) the blood alcohol tests were performed by the hospital’s own laboratory; and
(3) the written results of the blood alcohol tests were received and considered by the physician on duty at the hospital emergency room to assist that physician in diagnosis or treatment.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.4(a).

This court recently examined this provision in People v. Reardon (1991), 212 Ill. App. 3d 44, 570 N.E.2d 791. In Reardon, we affirmed the trial court’s grant of defendant’s motion to suppress blood-alcohol test results. There, the defendant’s treating physicians had testified that they had not read the written blood-alcohol information contained in the test report. We concluded that this provision is clear and unambiguous and plainly provides that emergency room blood-alcohol test results are admissible in evidence only when the “written” results were received and considered by the physician on duty in the hospital emergency room.

In the instant case, Dr. Bowden testified that he did not read the blood-alcohol report contained in State’s exhibit No. 1. Indeed, this written report was not even prepared until approximately three weeks after the blood-alcohol analysis was performed. Moreover, Dr. Bowden testified that, although at some point he became aware of defendant’s blood-alcohol content, the result of the blood-alcohol test was immaterial and inconsequential to the diagnosis and treatment of his patient’s injuries. Thus, not only was the blood-alcohol test not in written form at the time of treatment and diagnosis, but also it was not considered by the physician on duty to assist him in treating or diagnosing defendant.

On review, a trial court’s determination regarding a motion to suppress will not be disturbed unless it was clearly erroneous. (People v. Clark (1982), 92 Ill. 2d 96, 440 N.E.2d 869.) Under these circumstances, we hold that the trial court’s determination was not clearly erroneous.

The judgment of the circuit court of Will County is affirmed.

Affirmed.

SLATER and HAASE, JJ., concur.


text:
    THE PEOPLE ex rel. EDWARD A. BURMILA, JR., State’s Attorney of Will County, Petitioner-Appellant, v. ONE 1988 CHEVROLET AUTOMOBILE, VIN No. 1G1LD1110JY504863, et al., Respondents-Appellees.
    Third District
    No. 3 — 91—0190
    Opinion filed October 24, 1991.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant.
    Ira B. Goldstein, of Ira B. Goldstein, Ltd., and Paul R. Bjekich, both of Joliet, for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

The State filed a petition seeking the forfeiture of respondent Ann Sceniak’s 1988 Chevrolet automobile. The trial court denied the petition. The State appeals.

At the hearing on the State’s petition, Will County sheriff’s deputy Terry Paggi testified that the respondent was the target of a drug investigation Paggi was working on. According to Paggi, the respondent initially contacted him via Paggi’s pager. Paggi asked the respondent about purchasing LSD, but the respondent was unable to provide any. The respondent then inquired whether Paggi could sell cannabis to her. The respondent agreed to purchase a pound of cannabis for $1,500.

After the terms of the agreement were set, the respondent paged Paggi on September 20, 1990. She told him she had found someone named Doug to “front” the money for her to purchase the cannabis and she would page Paggi the next day. The next day, the respondent again paged Paggi and asked if she could take delivery of the cannabis. Paggi said he could provide the cannabis, but would need a few hours. Paggi later received another page from the respondent. This time she told Paggi that she was at home and that Doug was at the respondent’s work place. She told Paggi that she would go back to work to give Paggi’s pager number to Doug so they could arrange the details of the cannabis delivery.

Subsequently, Doug paged Paggi and they arranged the details of the delivery. When the meeting eventually took place, Doug produced the agreed-upon $1,500 and was arrested.

Doug did not use the respondent’s car for the transaction. Further, the respondent was not present. However, following her arrest, the respondent gave a statement to Paggi indicating she had used her automobile (a 1988 Chevrolet Beretta) to drive to her work place to give Paggi’s pager number to Doug.

Following this testimony, the trial judge took judicial notice that, in her companion criminal case, the respondent was found not guilty of attempted possession of cannabis with the intent to deliver. Subsequently, the trial judge dismissed the forfeiture petition, finding among other things that the respondent’s vehicle was not used to facilitate any violation of the Cannabis Control Act (Ill. Rev. Stat. 1989, ch. 561/2, par. 701 et seq.). The State appeals this basis for the judge’s ruling, as well as others given by him. Our determination of this issue makes it unnecessary to address the State’s other arguments.

Section 12(a)(3) of the Cannabis Control Act (Act) (Ill. Rev. Stat. 1989, ch. 561/2, par. 712(a)(3)) provides that a vehicle is subject to forfeiture if it is used to transport or to facilitate in any other manner a violation of the Act. The term “facilitate” means to make easier or less difficult. (People v. 1946 Buick, VIN 34423520 (1989), 127 Ill. 2d 374, 537, N.E.2d 748.) The burden is on the State to show by a preponderance of the evidence its right to forfeiture. (People ex rel. Vandersnick v. One 1987 Dodge Charger Automobile Vehicle Identification Number 1B3BZ44C5HD525894 (1990), 193 Ill. App. 3d 547, 550 N.E.2d 271.) On review, an appellate court will not reverse a trial court’s order regarding forfeiture unless the ruling is against the manifest weight of the evidence. People v. Strong (1986), 151 Ill. App. 3d 28, 502 N.E.2d 744.

In the instant case, we cannot say the trial judge’s order was against the manifest weight of the evidence. The only evidence the State presented regarding the respondent’s car showed that she drove it to her work place to give Doug a pager number. In our view, the use of the respondent’s car in this manner did not facilitate the commission of the offense as contemplated by the statute. The respondent could have telephoned Doug with the information. Thus, the use of her car did not make commission of the offense easier. (We are aware that Paggi testified that the respondent told him she had to drive because she had just started working there and did not know the telephone number. However, we assume the respondent’s work place did not have an unlisted number and she could have called information for it.)

Additionally, for purposes of comparison, we note our decision in People ex rel. Barra v. Lee (1984), 128 Ill. App. 3d 128, 470 N.E.2d 46, where drugs were actually found hidden inside the vehicle driver’s purse. We nonetheless reversed the forfeiture order, reasoning that the vehicle did not afford an additional dimension of privacy and therefore did not facilitate the possession. If there was not enough evidence in Barra to justify a forfeiture order, there certainly is not here. Facilitate does not mean that any time a person drives a vehicle in connection with the commission of an offense, no matter how remote that connection, the vehicle is subject to forfeiture. The respondent’s car was not used in any way that made the commission of the crime in question easier or less difficult. The respondent’s car was not subject to forfeiture.

The judgment of the circuit court of Will County is affirmed.

Affirmed.

STOUDER, P.J., and SLATER, J., concur.


text:
    DEANNA SWOPE, Plaintiff-Appellant, v. NORTHERN ILLINOIS GAS COMPANY, Defendant (The Department of Transportation, Defendant-Appellee).
    Third District
    No. 3—91—0232
    Opinion filed October 31, 1991.
    Louis E. Olivero & Associates, of Peru (Louis E. Olivero, of counsel), for appellant.
    Roland W. Burris, Attorney General, of Springfield (Alison E. O’Hara, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

The plaintiff, Deanna Swope, was severely injured when the pickup truck in which she was riding swerved to miss a deer and left Illinois Route 251. The truck went into the adjacent ditch, struck an embankment and flipped upside down. The embankment was constructed by Northern Illinois Gas Co. as part of a driveway which intersected the road.

Plaintiff filed suit against Northern Illinois Gas, alleging negligent construction of the embankment and driveway. Swope also named the Illinois Department of Transportation (IDOT), alleging negligence in the design, construction and maintenance of the road and adjacent areas.

Northern Illinois Gas answered the complaint and is not a party to this appeal.

IDOT moved to dismiss based upon the circuit court’s lack of jurisdiction under the doctrine of sovereign immunity. (Ill. Rev. Stat. 1989, ch. 127, par. 801.) The court found that it did indeed lack jurisdiction over plaintiff’s claim against IDOT and transferred venue to the Court of Claims.

Swope’s first contention on appeal is that by purchasing liability insurance, IDOT waived sovereign immunity so as to be amenable to suit in the circuit court.

The Illinois Constitution of 1970 abolished sovereign immunity, subject to exceptions made by the General Assembly. (Ill. Const. 1970, art. XIII, §4.) The General Assembly enacted the Court of Claims Act, which holds that exclusive jurisdiction over claims against the State lies with the Court of Claims. (Ill. Rev. Stat. 1989, ch. 37, par. 439.1.) A suit against a department or agency of the State is considered to be a suit against the State for immunity purposes. Gordon v. Department of Transportation (1982), 109 Ill. App. 3d 1071, 441 N.E.2d 904.

It is true that when a local public entity buys commercial insurance, it waives immunity from suit. (Ill. Rev. Stat. 1989, ch. 85, par. 9 — 103.) Plaintiff argues that there is “no legal or logical reason” why the State should be treated differently. However, the legislature in the Local Governmental and Governmental Tort Immunity Act, on which the plaintiff relies, defines “local public entity” so as to specifically exclude the State and its agencies. Ill. Rev. Stat. 1989, ch. 85, par. 1 — 206.

This action is a tort case against a State agency and the question of insurance as it is related to the question of immunity is not relevant. The Court of Claims has exclusive jurisdiction.

Swope also contends that the $100,000 limit on recovery applicable in the Court of Claims violates due process. This issue has been addressed numerous times and the courts have consistently held that the limit is constitutional. See, e.g, Seifert v. Standard Paving Co. (1976), 64 Ill. 2d 109, 355 N.E.2d 537.

IDOT claims, for the first time on appeal, that because the circuit court lacked jurisdiction, it had no power to transfer venue, only to dismiss. The plaintiff contends that since no cross-appeal was filed, the issue is waived.

The circuit court, under the Court of Claims Act, obviously lacked subject-matter jurisdiction over the action against IDOT. The lack of subject-matter jurisdiction cannot be waived since the parties cannot create subject-matter jurisdiction by consent, acquiescence, waiver or estoppel. (Board of Education v. Box (1989), 191 Ill. App. 3d 31, 547 N.E.2d 627.) It can even be raised by the court sua sponte when necessary. (Camp v. Chicago Transit Authority (1980), 82 Ill. App. 3d 1107, 403 N.E.2d 704.) Therefore, despite the defendant’s failure to file a notice of cross-appeal, this issue is properly before the court.

When a trial court lacks subject-matter jurisdiction, the only thing it has the power to do is dismiss the action. (Cahoon v. Alton Packaging Corp. (1986), 148 Ill. App. 3d 480, 499 N.E.2d 522; In re Marriage of Passiales (1986), 144 Ill. App. 3d 629, 494 N.E.2d 541.) Any order entered without subject-matter jurisdiction is void. (Talandis Construction Corp. v. Illinois Building Authority (1978), 60 Ill. App. 3d 715, 377 N.E.2d 237.) Therefore, the circuit court was without jurisdiction to order a transfer of venue.

Accordingly, we affirm the circuit court’s finding that it lacked jurisdiction and vacate the order transferring venue.

Affirmed in part and vacated in part.

STOUDER, P.J., and McCUSKEY, J., concur.