author: JUSTICE McNULTY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARNELL TIPTON, Defendant-Appellant.
    First District (5th Division)
    Nos. 1—89—0058,1—89—0092 cons.
    Opinion filed November 27,1991.

      Michael J. Pelletier and Anne Meyer, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Randall Roberts, and Margaret Iwerebon, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNULTY

delivered the opinion of the court:

After a jury trial, defendant Darnell Tipton was found guilty of two counts of aggravated criminal sexual assault. The trial court vacated one count of aggravated criminal sexual assault, finding that only one act of sexual penetration was alleged. Defendant was sentenced to a maximum extended term of 60 years’ imprisonment. This sentence was to run consecutively with a 90-year sentence imposed in an unrelated case.

On appeal, defendant argues that: (1) during closing argument the prosecutor made comments calculated to draw the jury’s attention to the defendant’s failure to testify; (2) the trial court erred in failing to instruct the jury that the State had the burden of proving beyond a reasonable doubt that the complaining witness did not consent to the sexual activity which occurred; (3) he was denied his sixth amendment right to effective assistance of counsel by defense counsel’s failure to tender jury instructions on the issue of consent; (4) he was denied his sixth amendment right to an impartial jury when the trial court refused to excuse for cause a prospective juror who stated that a past experience might influence her decision in the present case; (5) the trial court erred in allowing the State to introduce prompt complaint testimony; and (6) the trial court erred in ordering that the 60-year sentence imposed in this case be served consecutively with a 90-year sentence imposed in an unrelated case.

At trial, complainant Robert 0. testified that he was arrested on June 8, 1987, for jumping bail on a drug case, and placed in Cook County jail. While in jail on July 20, 1987, 0. engaged in a verbal altercation with another inmate over the use of the telephone. Because of this altercation, 0. was placed in segregation in the same cell with defendant, Darnell Tipton. After putting his personal belongings away, 0. climbed onto the top bunk bed and began reading a book. The lights in the prison went out at 10:30 p.m. but 0. turned on the light in his cell and continued reading. Sometime thereafter, defendant began talking to 0. Defendant told 0. that he was going to “f — ” him in his “ass” and “leg slag” him. Defendant threatened to kill 0. if he did not comply. 0. told defendant he was not that kind of guy. Defendant continued to threaten 0. and told him that he was a member of the Black Gangster Disciples and that if 0. screamed, he would tell his friends in prison to begin yelling in order to stifle O.’s screams.

0. then climbed off his bunk bed and walked to the cell door to see if there was a guard nearby. Defendant then grabbed an object and placed the object at the right side of O.’s throat. Defendant told 0. to pull down his pants. When 0. refused, they argued back and forth. Defendant then placed 0. on his bunk, pulled O.’s pants down and warned 0. not to scream.

Defendant grabbed something off the window sill and lubricated his penis. Defendant then had anal intercourse with 0. for 30 minutes. After ejaculating, defendant got up and told 0. to clean himself off. 0. then climbed back onto his bed and resumed reading. Defendant threatened to kill 0. if he reported the incident.

In the morning, breakfast was delivered to defendant and 0. Defendant took the breakfast, ate both his share and O.’s and again warned 0. against reporting the incident. At 9 a.m. that morning, 0. was removed from his cell to attend a hearing on the dispute that had occurred the previous night over the use of the telephone. 0. testified that on the way to the hearing, he informed Sergeant Codilis about the sexual assault and told Codilis that he did not want to reside in the same cell as defendant. Sergeant Codilis took 0. to the emergency room at Cermak Hospital, where he was examined.

Sergeant Codilis of the Cook County sheriff’s department testified that on July 21, 1987, as 0. was escorted to his hearing, 0. requested to speak with Codilis, who was the supervisor on duty. 0. complained to Codilis that he had been “raped” and added that he did not want to reside in the same cell as defendant. Codilis stated that he noticed abrasions on defendant’s neck and testified that 0. was distraught and cried. Codilis testified that after taking 0. to the hospital, he returned to the jail and searched defendant and defendant’s cell. The search revealed a used tube of Vaseline petroleum jelly but did not reveal a weapon.

Dr. Janice Robinson testified that she examined 0. in the emergency room at Cermak Hospital. She testified that 0. told her that he had been sexually assaulted. 0. spoke in a low voice and held his head low as Dr. Robinson examined him. She described 0. as appearing somewhat embarrassed and depressed. In addition to conducting rectal and oral swabs on 0., Dr. Robinson took samples of O.’s pubic and head hair. The oral swab tested negative but the rectal swab tested positive for semen.

Dr. Robinson also testified that 0. suffered from a recent neck abrasion and an abrasion to the left anterior chest. She testified that the neck abrasion was consistent with some type of object being placed at his neck, but could also have been caused by a blow from a fist, or a fall. She testified that based on her medical training, she believed 0. had sustained the injury within 12 to 24 hours prior to her examination. Dr. Robinson also performed a rectal examination of 0. and testified that she did not observe any injury or trauma to the rectal area.

Detectives Lenard Peterson and Clarence Lewis, both assigned to investigate defendant’s case, testified on behalf of the State that when they first observed 0. after the incident, he appeared emotional and was in tears. The detectives both testified that they noticed a scratch on the right side of O.’s neck.

Thomas Epach testified on behalf of defendant that on July 21, 1987, while he was an assistant State’s Attorney, he engaged in a conversation with 0. Epach initially testified that he did not recall 0. informing him that he had resisted defendant until defendant threatened him with a sharp object. On cross-examination, Epach stated that 0. cried, was upset and visibly shaken. Epach also observed a bruise on O.’s neck.

The jury found defendant guilty of two counts of aggravated criminal sexual assault. Finding that only one crime had been committed, the trial court entered judgment on only one count of aggravated criminal sexual assault. The trial court found defendant eligible for an extended-term sentence based on two prior convictions and sentenced him to 60 years’ imprisonment to be served consecutively with a 90-year sentence imposed in a prior unrelated case. Defendant appeals from both his conviction and sentence.

Initially, defendant maintains that the prosecutor violated his fifth amendment right to remain silent by commenting on his failure to testify at trial. Defendant raises issue with the following comments made by the prosecutor in closing argument:

“[PROSECUTOR]: Mr. [0.] supports their testimony. Mr. [0.] tells you what happened. Tells you that there was no consent. That it was by force and he tells you that there was some kind of object used, some type of object placed against his throat where the mark was. What that object was, an object was not recovered. We’ll never know. Mr. Tipton knows. We’ll never know what that object was.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[PROSECUTOR]: Where that object ended up we’ll never know. Mr. Tipton knows. We’ll never know, but the fact that there is an injury at this location is convincing evidence that some type of object was used.”

A defendant has a constitutional right not to testify on his own behalf, and it is improper for the prosecutor to refer directly or indirectly to defendant’s failure to testify. (People v. Arman (1989), 131 Ill. 2d 115, 125-26, 545 N.E.2d 658, 663.) In determining whether the prosecutor has improperly commented on defendant’s failure to testify, the court must consider whether the comment was intended or calculated to direct the attention of the jury to defendant’s failure to avail himself of his legal right to testify. Arman, 131 Ill. 2d at 126, 545 N.E.2d at 663.

The comments here are virtually identical to those in People v. Lyons (1976), 44 Ill. App. 3d 802, 803, 358 N.E.2d 1183, where the prosecutor stated:

“Where is that gun? I sure wish we had it. Only one man knows where that gun is and he’s sitting right there. Phillip Lyons.”

The court found that these comments were improper in light of the fact that “the prosecutor directly referred to defendant by name and then unambiguously implied that defendant could have offered an explanation for the disappearance of the gun in question, but had chosen to remain silent.” (Lyons, 44 Ill. App. 3d at 804, 358 N.E.2d at 1184.) The court in Lyons refused to find this error harmless since the proof of defendant’s guilt was not overwhelming.

The prosecutor’s comments in this case also called attention to the fact that defendant did not testify. In particular, the prosecutor referred to defendant by name and then emphasized the fact that defendant had not explained either what type of sharp object was used in the assault or the disappearance of the object. In addition, the prejudicial effect of the prosecutor’s comment that defendant had not explained what type of sharp object was used was compounded when the trial court overruled defense counsel’s objection. (People v. Ray (1984), 126 Ill. App. 3d 656, 661, 467 N.E.2d 1078, 1082.) By overruling defense counsel’s objection to this comment, the court gave the jury the impression that the prosecutor’s remark was proper. Instructing the jury that it should not consider the defendant’s failure to testify is not always sufficient to cure this type of error where the objection is sustained. (People v. Johnson (1976), 35 Ill. App. 3d 666, 341 N.E.2d 443.) It is therefore clear that such an instruction will not cure the error where the objection has been overruled. The prejudicial effect of the prosecutor’s comment was then further exacerbated when, after the objection was overruled, he commented that defendant had not provided an explanation for the disappearance of the weapon. In fact, the prosecutor’s comments are particularly dismaying in light of the fact that there was ample evidence in this case from which the defendant could have been found guilty. Although the facts of this case present a close question on whether the prosecutor’s comments described above constituted harmless error, due to the great number of cases coming before us involving valid claims of prosecutorial misconduct, we determine that a new trial in this case is required.

Defendant next contends that the trial court erred in failing to instruct the jury on the issue of consent. The jury was instructed:

“To sustain the charge of aggravated criminal sexual assault, the State must prove the following propositions:
First: That the defendant committed an act of sexual penetration upon Robert [0.], and
Second: That the act was committed by the use of force or threat of force; and
Third: That the defendant threatened to use a dangerous weapon or any other object fashioned or utilized in such a manner as to lead the victim under the circumstances reasonably to believe it to be a dangerous weapon [;]
or
Third: That the defendant caused great bodily harm to Robert [0.]. 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.”

The jury was not instructed on the defense of consent or the definition of consent nor was any instruction on consent tendered by defendant.

Because we are reversing and remanding this case due to the prosecutor’s improper comments on defendant’s failure to testify, we need not determine whether it was reversible error to fail to instruct the jury on the issue of consent. (See People v. Coleman (1987), 166 Ill. App. 3d 242, 520 N.E.2d 55 (the failure to instruct the jury on the State’s burden to prove lack of consent beyond a reasonable doubt was grave error); People v. Roberts (1989), 182 Ill. App. 3d 313, 537 N.E.2d 1080 (the failure to instruct the jury that the State had the burden to prove lack of consent was not grave error since by proving the “force or threat of force” element the State implicitly proved nonconsent).) Because it can be contended that absence of a weapon does raise an issue of consent, on remand the jury should be instructed that consent is a defense and that the burden of disproving consent rests with the State. Given this determination, we also need not address defendant’s assertion that he did not receive effective assistance of counsel at trial because defense counsel failed to tender an instruction on the issue of consent.

Defendant next asserts that the trial court erred when it declined to excuse a juror who expressed uncertainty about her ability to be impartial. In the course of voir dire the court asked a prospective juror whether any member of her immediate family had been the victim of a crime. After she replied that her sister had been raped five years ago, the following exchange then ensued:

“THE COURT: Would that, do you think that would influence you in any way considering the nature of the charges, ma’am?
JUROR: I don’t know. I honestly don’t know. I would try to.
THE COURT: You would try to honor your oath as a juror?
JUROR: Do my best.
* * *
THE COURT: You would honor your oath as a juror to the best of your ability?
JUROR: Yes, sir.”

At the close of voir dire, defense counsel moved to excuse the juror for cause because she initially responded that she did not know whether the rape of her sister would affect her impartiality. The trial court denied the request, stating that the juror indicated that she would honor her oath as a juror.

The trial judge is afforded broad discretion in voir dire, and a trial court’s determination as to whether a prospective juror can give the accused a fair trial will only be set aside if contrary to the manifest weight of the evidence. (People v. Pecina (1985), 132 Ill. App. 3d 948, 477 N.E.2d 811.) The court in People v. Johnson (1987), 162 Ill. App. 3d 952, 516 N.E.2d 343, found that the trial court had not abused its discretion when it declined to excuse a juror who initially expressed uncertainty about his ability to be impartial. In Johnson, the court conducted the following examination of the prospective juror:

“Q. The fact that you are for gun control, would that so color your thinking you would not be a fair and impartial juror, is that the bottom line?
A. I don’t know. That is hard to say because I am for gun control absolutely.
Q. Would you follow the instructions that I would give you at the conclusion of this case concerning the law that is applicable to this type of case?
Do you think you would be able to do that?
A. I would try.
Q. That is all we could ask. Okay ***.
* * *
Q. Would your feelings so cloud your ability to be a judge in this case so that you don’t think that you would be able to be fair and impartial? That is set aside your natural abhorrence of weapons and judge this on the facts in this case and not based on what you feel or don’t feel?
A. I would try.
THE COURT: That is all we could ask.” (162 Ill. App. 3d at 953-54.)

The court stated that although the response of the juror was somewhat equivocal upon the court’s general inquiry, the response did not demonstrate that she could not be impartial, particularly because the juror stated that she would try as best as she could to be impartial. Since the trial court was in the best position to evaluate this response and fairly decide its candor, the court concluded that the denial of defendant’s challenge was not improper. Johnson, 162 Ill. App. 3d 952, 954-55, 516 N.E.2d 343, 345.

Likewise, while the prospective juror in the instant case did initially express that she “might” have some difficulty being impartial, she clearly indicated that she would do her best to abide by her oath as a juror. Her response does not cast the same degree of doubt on her ability to be impartial as do the responses of the jurors in the cases cited by defendant. (See People v. Harris (1990), 196 Ill. App. 3d 663, 554 N.E.2d 367 (when asked if he could put aside past events and listen with an open mind, juror stated “no”); People v. Washington (1982), 104 Ill. App. 3d 386, 432 N.E.2d 1020 (juror said he did not know if he could be a fair juror, and stated that he “generally” believed prosecution should have burden of proof); People v. Stone (1978), 61 Ill. App. 3d 654, 378 N.E.2d 263 (jurors believed that defendant should have to prove he was innocent).) Accordingly, the trial court did not abuse its discretion in assessing that the juror was credible and capable of rendering a fair and impartial verdict.

Defendant next alleges that the trial court improperly permitted evidence that the victim made a prompt complaint of sexual assault. While as a general rule the testimony of a witness cannot be bolstered by showing that she made similar statements out of court, a well-established exception to the hearsay rule allows the complainant in sexual assault cases to show that she made a prompt complaint of the incident. (People v. Evans (1988), 173 Ill. App. 3d 186, 199, 527 N.E.2d 448.) The rationale underlying the exception is that it is entirely natural that the victim of a forcible sexual assault would speak out regarding it and, conversely, that the failure to do so would, in effect, be evidence that nothing violent had occurred. People v. Damen (1963), 28 Ill. 2d 464, 473, 193 N.E.2d 25.

Defendant argues that although the legislature recodified the various sex offense provisions, including rape, into a comprehensive set of sex crimes (Ill. Rev. Stat. 1985, ch. 38, pars. 12 — 13 through 12 — 16), only those rape or criminal sexual assault cases that would have constituted rape under the former statute are subject to the rule allowing prompt complaint testimony. (See People v. Gillman (1980), 91 Ill. App. 3d 53, 414 N.E.2d 240 (testimony of prompt complaint not admissible in trial for contributing to sexual delinquency of a minor); People v. Romano (1923), 306 Ill. 502, 138 N.E.2d 169 (prompt complaint testimony not admissible in trial for indecent liberties with a child since the rule permitting evidence of complaint does not extend to any offenses other than rape).) Because rape was defined under the previous statute (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 1) as well as the statute in effect at the time of the Romano decision (Ill. Rev. Stat. 1923, ch. 38, par. 490), as a male having sexual intercourse with a female by force and against her will, defendant contends that the rule permitting testimony of prompt complaints in rape cases was inapplicable in this case, where a male is accused of sexually assaulting another male.

Defendant’s argument is unpersuasive. Although the conduct of defendant would not have fallen under the definition of rape under the previous statutes, common sense dictates that the same rule apply regardless of whether the victim is male or female. The rationale of the prompt complaint hearsay exception is to foreclose the inference that the intercourse was consensual. Indeed, the consent of the male victim is as relevant to the resolution of this case as it would be to the resolution of a case involving a female victim. Accordingly, the testimony of both O. and Codilis concerning O.’s prompt complaint was properly admitted.

Lastly, defendant contends that the trial court' improperly imposed a consecutive sentence on defendant because that sentence exceeded the aggregate of the two most serious crimes for which he had been convicted. On August 7, 1987, in a case unrelated to the present one, the trial court sentenced defendant to an extended term of 60 years and an unextended term of 30 years for aggravated criminal sexual assault and armed robbery, both Class X felonies. The court ordered that these sentences be served consecutively. On December 20, 1988, the trial court sentenced defendant in the present case to a maximum extended term of 60 years for aggravated criminal sexual assault and ordered that this sentence be served consecutively to the 90-year sentence imposed in the prior case. Defendant alleges that his sentence of 150 years’ imprisonment, to be served consecutively, violates the maximum aggregate of consecutive sentences authorized by the following section of the Unified Code of Corrections:

“For sentences imposed under law in effect on or after February 1, 1978, the aggregate of consecutive sentences shall not exceed the sum of the maximum terms authorized under Section 5 — 8—2 for the 2 most serious felonies involved.” Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(c)(2).

Although the statute clearly states that the sentence shall not exceed the aggregate maximum terms for the two most serious felonies involved, the court in People v. Spires (1989), 182 Ill. App. 3d 176, 537 N.E.2d 1010, held that section 5 — 8—4(c)(2) does not apply where the defendant’s consecutive sentences are imposed for separate offenses committed at different points in time. The defendant in Spires was convicted of four different rape charges involving four different victims at four distinct times. He was sentenced to 60 years’ imprisonment on each rape and was ordered to serve the sentence consecutively for an aggregate of 240 years. In affirming defendant’s sentence, the court stated that the practical effect of accepting defendant’s position that section 5 — 8—4(a)(2) applied even where a defendant has been convicted of committing different crimes at different times

“would be to (1) give a defendant free reign to commit as many crimes as he desires with the knowledge that he is only subject to consecutive sentencing on two of those crimes and (2) lessen the protection of the public from persons who have been determined to be a serious threat to society because of their criminal conduct, thereby circumventing the purpose of consecutive sentencing. Such a conclusion is not supported by logic or statutory authority.” Spires, 182 Ill. App. 3d at 185, 537 N.E.2d at 1015.

Here, while defendant was convicted of three distinct charges, these charges involved only two different victims and two distinct points in time. Notwithstanding this fact, it was still proper to add a 60-year consecutive sentence to defendant’s previous consecutive sentence of 90 years. To hold otherwise would allow a defendant who has already received a consecutive sentence to continue to commit further crimes without the fear of receiving a longer sentence.

Reversed and remanded.

LORENZ, P.J., and MURRAY, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LORENZ

license: Public Domain

text:
    WALTER J. MILLER, Plaintiff-Appellant, v. SUBURBAN MEDICAL CENTER AT HOFFMAN ESTATES, INC., d/b/a Humana Hospital Hoffman Estates, Defendant-Appellee.
    First District (5th Division)
    No. 1—89—3097
    Opinion filed November 27,1991.

      Gregory A. Adamski, Karen Conti, and Rohini Palit, all of Adamski & Conti, of Chicago, for appellant.
    John M. Duczynski and John A. Vasko, both of Peterson, Ross, Schloerb & Seidel, of Chicago, for appellee.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Defendant hospital, Suburban Medical Center at Hoffman Estates, revoked the staff privileges of plaintiff, Dr. Walter Miller. Plaintiff filed a complaint for declaratory judgment and injunctive relief. The following day, plaintiff filed a motion seeking a temporary restraining order. That motion was denied. Defendant hospital answered the complaint but the court then ordered the case to remain pending without further hearing. Two years later, plaintiff, after a change of counsel, filed the first of three amended complaints each of which was dismissed by the trial court for failure to state a cause of action. Plaintiff opted to stand on the third-amended complaint instead of amending it further. The trial court entered a final order and plaintiff appealed. We consider whether plaintiff’s third-amended complaint sufficiently alleged facts that the hospital violated its bylaws with a deliberate intention to harm the plaintiff.

We affirm.

Relevant to our disposition are the following facts as disclosed by the record. In 1979, plaintiff was granted staff privileges as a general surgeon at the defendant hospital. (After this suit was filed, Suburban Medical Center at Hoffman Estates, Inc., changed its name to Humana Hospital Hoffman Estates.) In the following years, plaintiff became the subject of the hospital’s procedural review of staff physicians. A summary of that review is set forth below.

In 1982, the hospital’s surgical audit committee, organized for the purpose of reviewing surgical cases resulting in complications or unexplained problems, commenced a one-year prospective review of plaintiff’s cases. On the basis of the review, the surgical audit committee recommended that plaintiff’s staff privileges be revoked because of a “consistent pattern of substandard care.”

In March 1983, the medical staff executive committee (Executive Committee) met to consider the above recommendation. The Executive Committee decided to issue a letter of reprimand; require another year of review of plaintiff’s cases by the surgical audit committee; require plaintiff to seek consultation in all difficult surgical cases; and require plaintiff to attend a comprehensive continuing medical education course during the next six months. Plaintiff agreed.

In August 1983, plaintiff performed surgery which resulted in complications. After its review of the case, the surgical audit committee again recommended revocation of plaintiff’s privileges. This time the Executive Committee adopted the recommendation. The recommendation was sent to the hospital’s board of trustees for further disposition.

Plaintiff requested and was granted the appointment of a hearing committee. After its own review, the hearing committee recommended to the Executive Committee that plaintiff be continued on probation for another year and that a fully qualified surgeon assist and observe all of plaintiff’s cases for that year. Plaintiff’s staff privileges would be reevaluated at the end of that year. However, the Executive Committee persisted in its own recommendation that plaintiff’s staff privileges be revoked. Thus, plaintiff requested and was granted another hearing by the appellate review committee appointed by and including several members of the board of trustees. Following this hearing in May 1984, the appellate review committee recommended that plaintiff’s staff privileges be revoked. Acting upon the recommendations of the Executive Committee and the appellate review committee, the board of trustees voted to revoke plaintiff’s staff privileges. Plaintiff was advised of this final decision by a letter dated May 30,1984.

In June 1984, plaintiff filed his initial complaint for declaratory judgment and injunctive relief requesting that his staff privileges be restored at defendant hospital. The plaintiff also filed a motion for a temporary restraining order but, after a hearing, the court denied the motion. In July 1984, defendant hospital answered plaintiff’s complaint. In November, the court ordered the case to remain pending without further hearing. The case remained dormant until April 1986, when new counsel appeared on behalf of plaintiff. Plaintiff then filed the first of three amended complaints. The third-amended complaint alleged willful, wanton, and malicious misconduct by the hospital and sought, among other things, compensatory and punitive damages. Each of the three amended complaints, including the third-amended complaint, was dismissed by the trial court for failure to state a cause of action. Plaintiff opted to stand on the third-amended complaint instead of amending it further. The trial court entered a final order and plaintiff appealed.

Opinion

A private hospital’s decisions concerning the staff privileges of physicians are not subject to judicial review except where the action taken violates the hospital’s bylaws. (Adkins v. Sarah Bush Lincoln Health Center (1989), 129 Ill. 2d 497, 544 N.E.2d 733.) Where a complaint alleges willful and wanton misconduct, the Adkins court explained:

“To sufficiently plead willful and wanton misconduct, a plaintiff must allege either a deliberate intention to harm or an utter indifference to or conscious disregard for the welfare of the plaintiff. ***
*** It is fundamental that facts and not conclusions are to be pleaded. If, without considering the conclusions that are pleaded, there are not sufficient allegations of fact to state a cause of action, a motion to dismiss will properly be granted, no matter how many conclusions may have been stated and regardless of whether they inform the defendant in a general way of the nature of the claim against him.” (Adkins, 129 Ill. 2d at 518-20, 544 N.E.2d at 743-44.)

Therefore, the issue here is whether plaintiff’s third-amended complaint sufficiently alleged facts that the hospital violated its bylaws with a deliberate intention to harm the plaintiff.

We see no purpose in providing a detailed paraphrase of plaintiff’s 66-paragraph, third-amended complaint. We have carefully analyzed the complaint and have found an absence of factual allegations necessary to withstand a motion to dismiss.

By way of summary, we note that the record contains two copies of the hospital’s bylaws, adopted in 1979 and 1983, respectively. Each is over 50 pages long containing over 15 articles with numerous sections and subsections.

Plaintiff’s third-amended complaint makes 17 references to portions of the bylaws. However, 13 of these references are to entire articles or sections. Given the length of these articles and sections, we conclude that plaintiff’s allegations are of such a general nature that they cannot withstand a motion to dismiss. Adkins, 129 Ill. 2d 497, 544 N.E.2d 733.

The remaining four references, while they do refer to specific subparagraphs of the bylaws, fail to show that the hospital violated the subparagraphs with a deliberate intention to harm the plaintiff. In fact, we have closely reviewed the substance of each of these four subparagraphs and find that plaintiff’s allegations constitute mere conclusions. Adkins, 129 Ill. 2d 497, 544 N.E.2d 733.

We hold that plaintiff’s third-amended complaint failed to allege facts that the hospital violated its bylaws with a deliberate intention to harm the plaintiff. We also find unpersuasive the additional arguments raised by plaintiff’s appellate counsel in his brief and at oral arguments.

Affirmed.

GORDON and McNULTY, JJ., concur.


text:
    NORMAN PARADISE, Plaintiff-Appellee, v. AUGUSTANA HOSPITAL AND HEALTH CARE CENTER, Defendant-Appellant.
    First District (5th Division)
    No. 1—90—0678
    Opinion filed November 27,1991.

      Michael J. Daley and Stephen G. Kehoe, both of Nisen & Elliott, of Chicago, for appellant.
    Mitchell Edelson, Jr., and Stephen C. Sadin, both of Mitchell Edelson & Associates, of Chicago, for appellee.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Norman Paradise, filed suit against defendant, Augustana Hospital and Health Care Center, for breach of a consulting contract. In assessing the evidence at trial, the court construed two letters by defendant and a third letter by plaintiff to determine the effective date of termination of the contract. The court found that the contract was effectively terminated 30 days after the date of defendant’s second letter. Therefore, the court awarded plaintiff breach of contract damages in the form of his unpaid monthly salaries and bonus payments through that date. The trial court also invoked, sua sponte, the theory of quantum meruit and awarded plaintiff his bonus payments for several months after the effective date of termination of the contract. Defendant appealed. We consider: (1) whether the trial court correctly construed the letters to determine the effective date of termination of the contract; and (2) whether the trial court erred by invoking, sua sponte, the theory of quantum meruit upon which plaintiff was awarded his bonus payments for several months after the effective date of termination of the contract.

We affirm in part and reverse in part.

Relevant to our disposition are the following facts as disclosed by the record. In July 1985 Norman Paradise (plaintiff) and Augustana Hospital and Health Care Center (defendant) entered a consulting contract pursuant to which, in return for a $25,000 annual salary, plaintiff would promote defendant’s “position” and assist in the negotiation of contracts between defendant and approved nursing homes. The original contract also provided for a periodic review to determine if plaintiff merited “additional benefits such as a monthly stipend or bonus.” Later in July the contract was expressly amended to provide plaintiff with “a bonus of seven (7) percent of revenues produced from nursing home laboratories business” up to a maximum annual compensation of $50,000.

The contract’s term lasted one year but included automatic renewals for additional one-year extensions. Therefore, written notice was required to terminate the contract. Section 2.1 of the contract governed termination and it expressly stated:

“Either party may terminate this contract at any time, with or without cause, upon thirty (30) days prior written notice.”

If such termination were to occur after the initial one-year term, plaintiff agreed to refrain from acting as either a consultant or employee of any clients he may have obtained for defendant under the contract.

By November 1986 plaintiff had performed under the contract for a period of 16 months during which time he had been paid his agreed salary and bonus. On November 18 plaintiff had a meeting with defendant’s president, David Jensen. Jensen maintains that he informed plaintiff that his services would be terminated on December 31. Plaintiff maintains that the issue of termination of the contract was not discussed at the meeting; rather, the two discussed a prospective change in the compensation under the contract. At any rate, on November 19 Jensen drafted a letter addressing the “results” of the meeting. The letter stated in part:

“After our discussion of the current status, opportunities, financial efforts, and other problems of our nursing home laboratory and other services, we conclude that you would continue with your efforts, under our existing compensation arrangement, through December 31, 1986.
During this period, I’m sure Tony or his designees will be contacting you for information for their deliberations.”

After plaintiff read the letter, he contacted his immediate supervisor with defendant, Dr. Rothenberg, to inquire whether the letter was intended to terminate the contract. Dr. Rothenberg told him the letter was not intended to terminate the contract. Plaintiff, therefore, continued to appear at defendant hospital through January 1987.

On January 15, 1987, plaintiff met with defendant’s vice-president of administration, Anthony DiLorenzo. DiLorenzo told plaintiff that defendant intended to reorganize its affiliations with the nursing homes. DiLorenzo then handed plaintiff a letter which stated in part:

“This letter will serve as notice to you, that it is the intention of [defendant] to conclude its Nursing Home Consulting Agreement with you effective January 16,1987.”

DiLorenzo maintains that the letter was a clarification that plaintiff’s services were intended to be terminated by Jensen’s November 19 letter. Therefore, the termination would be effective the next day and not 30 days hence. Defendant paid plaintiff his compensation through January 15.

In response, plaintiff contacted his attorney. The attorney advised him that because the letter called for termination upon one day of notice it did not satisfy the 30-day notice requirement of section 2.1 of the contract and, therefore, the contract was not effectively terminated. Nonetheless, plaintiff cleaned out his desk at the hospital.

Plaintiff maintains that he continued to perform services under the contract (in the form of telephone calls to his clients) through the end of April. Defendant denies any knowledge of these continued services or the acceptance of any benefits. However, defendant stipulated that, apart from the efforts of plaintiff after the middle of January, plaintiff’s clients continued to generate monthly revenues ranging from $30,000 to $60,000.

On May 1 plaintiff drafted his own letter stating his intention to terminate the contract with defendant, effective May 31.

Plaintiff then filed a complaint for damages alleging a single count of breach of the consulting contract. Defendant answered the complaint admitting the existence of the contract but stating that plaintiff had been paid in full for all services provided prior to the contract’s termination.

After a trial on the merits, the trial court found that Jensen’s letter of November 19 did not constitute notice of termination and that DiLorenzo’s letter of January 15 did constitute notice of termination but the termination was not effective until 30 days thereafter (pursuant to section 2.1 of the contract) instead of the one day provided for in the letter. The court also found that the revenues of plaintiff’s clients increased after the effective termination and that plaintiff was entitled to the 7% bonus payments through April 30 based upon the theory of quantum meruit. The court then entered its first order which (1) granted plaintiff leave to amend his complaint instanter to add a second count in quantum meruit so that the pleadings would conform to the proofs; (2) found for the plaintiff on the breach of contract count in the amount of $2,083; and (3) found for the plaintiff on the quantum meruit count in the amount of $7,802. The trial court left open the question whether plaintiff had the right to his bonus payment for the month of May. Subsequently, the plaintiff moved to supplement the record with evidence of plaintiff’s services for that month. The court then entered its second order increasing the quantum meruit award to $9,927 to account for the May bonus. Plaintiff’s total award was $12,010.

Defendant filed motions to vacate or modify the judgments. The trial court denied the motions and this appeal followed.

Opinion

Our first issue is whether the trial court erred in its determination that DiLorenzo’s letter of January 15, and not Jensen’s letter of November 19, constituted sufficient written notice to terminate the contract. Under Illinois law, sufficient notice is that which clearly discloses to persons of ordinary intelligence what is intended. (Wendl v. Moline Police Pension Board (1981), 96 Ill. App. 3d 482, 421 N.E.2d 584.) We believe that the plain language of defendant’s two letters supports the trial court’s construction.

Jensen’s letter of November 19 indicates that the December 31 “effective date” contemplates a change in the “existing compensation agreement.” This language applies more directly to the salary or bonus terms and not to the termination of the contract. Furthermore, if in fact defendant was contemplating termination of the contract, it is apparent that a final decision had not been reached because the letter called for plaintiff to continue to provide defendant with information “for their deliberations.”

DiLorenzo’s letter of January 19 plainly expressed defendant’s intent to terminate the contract. The opening sentence states “[t]his letter will serve as notice to you, that it is the intention of [defendant] to conclude its Nursing Home Consulting Contract with you effective January 16, 1987.” We note that it is not required that adequate written notice specifically contain the word “termination.” (Pullman, Inc. v. International Brotherhood of Boilermakers (E.D. Penn. 1972), 354 F. Supp. 496.) Therefore, the letter constituted sufficient notice because it clearly disclosed to a person of ordinary intelligence that defendant intended to terminate the contract. However, the letter’s one-day effective date violated section 2.1 of the contract, which required 30 days’ notice. Therefore, the trial court also correctly determined that February 14, and not January 16, was the effective date of termination of the contract.

The next issue is whether the trial court erred by invoking, sua sponte, the theory of quantum meruit upon which plaintiff was awarded his bonus payments for the period between January 16 and May 31. Because we hold that plaintiff is not entitled to quantum meruit damages as a matter of substantive law, we limit ourselves to that issue.

In the law, quantum meruit means literally “as much as he deserves.” It is an expression that describes the extent of liability on a contract implied by law, and is predicated on the reasonable value of services performed; the basis of recovery is the receipt by a defendant from a plaintiff of a benefit which is unjust for him to retain without paying for it. (Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 408 N.E.2d 1069.) However, a plaintiff is not entitled to recovery under quantum meruit where there was no expectation that defendant would pay for the services rendered. Industrial Lift Truck Service Corp. v. Mitsubishi International Corp. (1982), 104 Ill. App. 3d 357, 432 N.E.2d 999; In re Estate of Milborn (1984), 122 Ill. App. 3d 688, 461 N.E.2d 1075; Board of Directors of Carriage Way Property Owners Association v. Western National Bank (1985), 139 Ill. App. 3d 542, 487 N.E.2d 974.

Here, the plaintiff did not have a reasonable expectation that defendant would continue to pay the bonus payments. The contract itself does not in any way provide plaintiff with the right to bonus payments, in the form of a commission schedule or otherwise, after the contract’s termination. Defendant, on its part, clearly expressed its intent to terminate the contract in DiLorenzo’s January 15 letter and the trial court held that the letter was sufficient notice to terminate the contract. Plaintiff proceeded, pursuant to the advice of his attorney, on the slim basis that the letter technically did not terminate the contract. The Industrial Lift court responded to this situation as follows:

“[Plaintiff] knew the contract could be terminated as it was terminated, and thus knew when [he] made the changes that [he] might not be compensated under the contract to the extent [he] hoped to be compensated. Now that a situation plaintiff knew could occur has occurred, plaintiff seeks to shift a risk it assumed in light of the contract to defendant. In essence, plaintiff is seeking to use quasi-contract as a means to circumvent the realities of a contract it freely entered into.” (Industrial Lift, 104 Ill. App. at 361, 432 N.E.2d at 1002.)

Stated otherwise, DiLorenzo’s letter of January 15 “was a clear expression of dissent which could not have led the plaintiff to entertain a reasonable expectation of payment.” (Western National Bank, 139 Ill. App. 3d at 547, 487 N.E.2d at 978.) Accordingly, we hold that plaintiff was not entitled to damages on a theory of quantum meruit because plaintiff had no reasonable expectation that defendant would continue to pay the bonus payments for the months in question.

In summary, we affirm the trial court’s determination as to the termination date of the contract and the breach of contract damages. We reverse the trial court on the issue of plaintiff’s right to damages on a theory of quantum meruit.

Affirmed in part; reversed in part.

GORDON and McNULTY, JJ., concur.


author: JUSTICE GORDON

text:
    THE DEPARTMENT OF CENTRAL MANAGEMENT SERVICES et al., Plaintiffs-Appellees, v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME), AFL-CIO, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—1299
    Opinion filed November 27, 1991.

      Gilbert Feldman, of Cornfield & Feldman, of Chicago, for appellant.
    Roland W. Burris, Attorney General, of Springfield (William D. Frazier, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE GORDON

delivered the opinion of the court:

This is an appeal by defendant, American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO, from an order of the circuit court of Cook County granting plaintiffs’ motion to vacate an arbitration award on public policy grounds. Defendant also appeals from an order declining to hear a motion for rehearing.

Cornelius Burress was a parole officer employed by the Department of Corrections. He was discharged on April 16, 1986, on the ground that he had pled guilty in Federal court to two counts of knowingly making false statements to the Department of Housing and Urban Development (HUD), a felony. Specifically, he understated his income in an application for rental assistance payments. The basis for the discharge was that his criminal conduct brought discredit to the Department of Corrections and constituted a violation of departmental rules.

After his discharge, the defendant, on behalf of Burress, filed a grievance and requested arbitration under the collective bargaining agreement between the State and AFSCME, alleging that his discharge was not for “just cause” as required under the agreement. The arbitrator was asked to decide whether there was “just cause for the suspension and discharge of the grievant[.] If not, what is the appropriate remedy?”

Although the arbitrator found there was a linkage between Burress’ wrongful conduct and his responsibilities on the job, the arbitrator went on to consider “whether the grievant’s conduct was so inherently wrong as to disqualify the grievant from his job.” In determining that discharge was not warranted, the arbitrator considered the fact that other parole officers in the continued employ of the Department of Corrections have been convicted of felonies. He also relied heavily upon a letter from Federal Judge Prentice Marshall, the judge before whom Burress pled guilty, in which Judge Marshall recommended that Burress’ employment be continued.

“I write to urge you to consider, if possible, retaining Mr. Burress in his present position. I am convinced that he truly regrets his misconduct. I placed him on probation with the special condition that he make restitution of the rent subsidies and perform a substantial number of hours of community service. ***
It is conceivable that this experience will make Mr. Burress a ‘better’ parole officer. From my vantage point, it is worth a try.
*** The primary purpose of my letter is to tell you that I would have no objections (and indeed would support) the retention of Mr. Burress in his present position.”

The final mitigating factor considered was Burress’ otherwise almost unblemished work record. As a result, the arbitrator ordered Burress reinstated to his former position without back pay.

Plaintiffs filed an application in the circuit court to vacate the arbitration award, on the grounds that the arbitrator exceeded his authority and that the award was contrary to public policy. Defendant filed a motion to dismiss, alleging that the court lacked subject matter jurisdiction. On June 8, 1987, the circuit court entered its final order, finding that it had jurisdiction to review the arbitration award on public policy grounds, and vacating the award as violative of public policy. Defendant’s subsequent motion for rehearing was denied as not being timely moved to hearing, and this appeal followed. For the reasons set forth below, we reverse.

Opinion

Defendant raises two issues in its appeal. The first is whether the circuit court was the proper forum for this public policy challenge to an arbitration award, and the second issue is whether the subject arbitration award was properly vacated as violative of public policy.

Defendant urges that the Illinois State Labor Relations Board (ISLRB) has “exclusive primary jurisdiction” over public policy challenges to arbitration awards issued under collective bargaining agreements subject to the Illinois Public Labor Relations Act (IPLRA) (Ill. Rev. Stat. 1989, ch. 48, par. 1601 et seq.). It is clear, however, that the IPLRA itself does not provide for exclusive jurisdiction in the ISLRB over arbitration awards, and the decisions of the Illinois Supreme Court and this and other appellate courts have held that the circuit court has jurisdiction over public policy challenges to such awards.

Section 8 of the IPLRA provides that “[t]he grievance and arbitration provisions of any collective bargaining agreement shall be subject to the Illinois 'Uniform Arbitration Act’.” (Ill. Rev. Stat. 1989, ch. 48, par. 1608.) Under sections 2, 12, 14 and 16 of the Uniform Arbitration Act (UAA) (Ill. Rev. Stat. 1989, ch. 10, pars. 102, 112, 114, 116), “all proceedings to compel arbitration, to stay arbitration, to seek vacation of an award, or to enforce an award are through the circuit court.” (Board of Education of Community School District No. 1 v. Compton (1988), 123 Ill. 2d 216, 222, 526 N.E.2d 149.) Section 12(e) of the UAA provides “Nothing in this Section or any other Section of this Act shall apply to the vacating, modifying, or correcting of any award entered as a result of an arbitration agreement which is a part of or pursuant to a collective bargaining agreement; and the grounds for vacating, modifying, or correcting such an award shall be those which existed prior to the enactment of this Act.” (Ill. Rev. Stat. 1989, ch. 10, par. 112(e).) Defendant contends that circuit court review is limited to cases in which vacation is sought on the grounds of fraud, partiality or misconduct of the arbitrator. When an award is challenged on public policy grounds, defendant urges, jurisdiction lies with the ISLRB, and circuit courts should refrain from considering such cases and defer to the expertise of the labor board for resolution.

In support of its position, defendant cites several cases decided under the Illinois Educational Labor Relations Act (IELRA) (Ill. Rev. Stat. 1989, ch. 48, par. 1701 et seq.). (Board of Education of Warren Township High School District 121 v. Warren Township High School Federation of Teachers, Local 504 (1989), 128 Ill. 2d 155, 538 N.E.2d 524; Board of Education of Community School District No. 1 v. Compton (1988), 123 Ill. 2d 216, 526 N.E.2d 149.) In those cases it was held that the IELRA divested the circuit courts of jurisdiction to vacate or enforce labor arbitration awards subject to the IELRA. Defendant urges that the IELRA and the IPLRA evidence a common legislative intent to lodge in the labor boards the exclusive responsibility for effectuating labor policy by enforcing the provisions of the two acts.

This argument, however, overlooks a significant difference between the two labor acts. Section 8 of the IPLRA (Ill. Rev. Stat. 1989, ch. 48, par. 1608) explicitly provides for enforcement of arbitration awards in accordance with the Uniform Arbitration Act, while the IELRA makes no reference to the UAA. This distinction was noted in Compton, where the court, in reaching the conclusion that arbitration awards under the IELRA are not subject to circuit court review, said “[t]he absence of any reference to the Uniform Arbitration Act in the Illinois Educational Labor Relations Act strongly suggests that the legislature did not intend review of arbitration awards by the circuit court, even as to ‘arbitrability.’ ” Compton, 123 Ill. 2d at 222.

Defendant points to the many areas of similarity between the IPLRA and the IELRA in support of its argument that Compton and Warren Township should control our decision here. Specifically, both acts bypass the circuit court for review of unfair labor practice decisions made by the respective boards, in the interest of uniformity of labor policy. Both acts also stress the strong public policy favoring arbitration and the finality of arbitration awards. Further, both acts define mandatory, permissive, and illegal subjects of bargaining. They also both include a provision giving each act preference over other laws. The acts show a common purpose of regulating labor disputes under collective bargaining agreements. Based on these similarities, defendant urges, we should follow Compton and Warren Township, decided under the IELRA, and find that under the IPLRA, the ISLRB has jurisdiction over this matter.

These same arguments were raised in Department of Central Management Services v. American Federation of State, County & Municipal Employees (AFSCME) (1990), 197 Ill. App. 3d 503, 554 N.E.2d 759. The court there found these similarities insufficient to overcome the express difference in the two acts: the IPLRA expressly providing for judicial review of arbitration awards and the IELRA being silent on the subject.

We also find significant another difference between the two labor acts which we believe supports our position that it is the circuit court rather than the ISLRB which has jurisdiction over vacation of arbitration awards. Under the IELRA, refusal to comply with an arbitration award is an unfair labor practice (Ill. Rev. Stat. 1989, ch. 48, pars. 1714 (a)(8), (b)(6)), while such refusal is not explicitly made an unfair labor practice under the IPLRA. (See Ill. Rev. Stat. 1989, ch. 48, par. 1610.) Under both acts, charges of unfair labor practices are dealt with by the boards. (Ill. Rev. Stat. 1989, ch. 48, pars. 1611, 1715.) The omission of refusal to comply with an arbitration award as an unfair labor practice under the IPLRA, and the inclusion under the IELRA, provides further evidence of a legislative intent that review of arbitration awards is to be handled differently under the two acts. Compare Chicago Board of Education v. Chicago Teachers Union (1986), 142 Ill. App. 3d 527, 531, 491 N.E.2d 1259 (where the court found that the inclusion of refusal to comply with an arbitration award as an unfair labor practice under the IELRA, and omission under the IPLRA, indicated a legislative intent “to establish a new regulatory scheme to administer arbitration awards in the unique area of public education”).

In Department of Central Management Services v. American Federation of State, County & Municipal Employees (AFSCME) (1990), 197 Ill. App. 3d 503, 554 N.E.2d 759, AFSCME maintained, as it does here, that the ISLRB has exclusive jurisdiction over challenges to arbitration awards on public policy grounds, under agreements subject to the IPLRA. There the court noted that in American Federation of State, County & Municipal Employees v. State (1988), 124 Ill. 2d 246, 529 N.E.2d 534 (hereinafter Blasingame), the Illinois Supreme Court discussed in detail the question of whether the award was in fact violative of public policy, but said nothing about jurisdiction of the circuit court. “While the court did not say who should initially pass on the question of whether the award violated public policy, we think the court would have so stated, had it deemed the circuit court was not the proper tribunal to pass upon the matter initially.” (Department of Central Management Services, 197 Ill. App. 3d at 508.) Similarly, in American Federation of State, County & Municipal Employees (AFSCME) v. State (1989), 192 Ill. App. 3d 108, 548 N.E.2d 592, this court noted the implicit teaching of Blasingame that “Illinois courts have the power, albeit limited power, to vacate public labor arbitration awards on the basis of public policy.” 192 Ill. App. 3d at 115.

Regarding defendant’s contention that the ISLRB has primary jurisdiction over public policy challenges to arbitration awards and the courts should defer to the board in such cases, the ISLRB itself has considered the circumstances under which it will exercise jurisdiction in disputes involving arbitration awards. While this action was pending, AFSCME brought an unfair labor practice charge with the ISLRB against plaintiffs, alleging that by failing to comply with the arbitration award, plaintiffs had committed an unfair labor practice. The board recognized that “[i]n certain circumstances, such as failure to comply with an award where no judicial review has been sought, *** a failure to comply with an arbitration award could constitute an unfair labor practice under the language of Section 10(a)(4) of the Act. [Ill. Rev. Stat. 1987, ch. 48, par. 1610(a)(4) (“It shall be an unfair labor practice for an employer or its agents to refuse to bargain collectively in good faith with a labor organization *** including, but not limited to, the discussing of grievances with the exclusive representative”).]” (Illinois Departments of Central Management Services, Revenue, Corrections & Mental Health, 3 Pub. Employee Rep. (Ill.) par. 2033, No. S-CA-87-78 (ISLRB April 17, 1987).) The ISLRB dismissed the charge, however, finding that “a party’s good faith pursuit of its statutorily granted right to judicial review is a defense to such an unfair labor practice.” 3 Pub. Employee Rep. (Ill.) par. 2033, at VIII — 214. Thus, the ISLRB itself recognized that while it has jurisdiction over an unfair labor practice, the circuit court rather than the board is the proper forum in which to seek vacation of such awards. In effect, the board deferred its jurisdiction to that of the judicial system, the opposite of what defendant urges here.

The plaintiffs here have not arbitrarily refused to comply with the award. Rather they have challenged the award in the courts as they are statutorily entitled to do. (Compare Illinois Departments of Corrections & Central Management Services, 4 Pub. Employee Rep. (Ill.) par. 2043, No. S — CA—88—70 (ISLRB Oct. 19, 1988) (where employer did not challenge a grievance settlement agreement in court, and the ISLRB found the employer’s “complete and outright refusal” to honor the agreement to be a violation of the duty to bargain in good faith and thus an unfair labor practice).) Because we find that the circuit court had jurisdiction to consider plaintiffs’ public policy challenge to the arbitration award, we need not and do not consider whether, had plaintiffs simply refused to abide by the award and thereby committed an unfair labor practice, public policy would be a proper factor to be considered by the board in ruling on an unfair labor practice charge. See Chicago Board of Education v. Chicago Teachers Union (1986), 142 Ill. App. 3d 527, 491 N.E.2d 1259.

As to defendant’s argument that, under the UAA, which provides that the only grounds for vacating arbitration awards are those which existed prior to the enactment of the Act, the only permissible grounds are fraud, misconduct or impartiality of the arbitrator, we disagree. Courts have long had the power to refuse to enforce contracts which violate public policy. (City of De Kalb v. International Association of Fire Fighters, Local 1236 (1989), 182 Ill. App. 3d 367, 538 N.E.2d 867.) As the court said in Board of Trustees of Community College District No. 508 v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 424, 386 N.E.2d 47, 52:

“We recognize that any judicial decision to vacate an arbitrator’s award compromises both the parties’ interest in the finality of the arbitrator’s decision and the underlying public policy in favor of resolving collective bargaining disputes by arbitration. Nevertheless, just as we will not enforce a private agreement which is repugnant to established norms of public policy, we may not ignore the same public policy concerns when they are undermined through the process of arbitration. Even if the arbitrator considered issues of public policy in construing the agreement before him, we may not abdicate to him our responsibility to protect the public interest at stake.”

Accordingly we must reject defendant’s argument that the circuit court here lacked jurisdiction to review the arbitrator’s award.

We turn now to the issue of whether the arbitrator’s award should be vacated as violative of public policy. We agree with the parties that this case is governed by American Federation of State, County & Municipal Employees (AFSCME) v. State (1988), 124 Ill. 2d 246, 529 N.E.2d 534, aff’g 158 Ill. App. 3d 584, 511 N.E.2d 749 (Blasingame). There the supreme court and this court considered the issue of judicial vacation of arbitration awards on public policy grounds. “An arbitration award in contravention of paramount considerations of public policy is not enforceable. (Board of Trustees of Community College District No. 508 v. Cook County College Teachers Union (1979), 74 Ill. 2d 412, 423-24.) While there is no precise definition of public policy, it is to be found in the Constitution, in statutes and, when these are silent, in judicial decisions.” (Blasingame, 124 Ill. 2d at 260.) Each case must be judged by its own peculiar circumstances, applying a strict test. Blasingame, 158 Ill. App. 3d 584, 511 N.E.2d 749.

The supreme court in Blasingame looked to W.R. Grace & Co. v. Local Union 759 (1983), 461 U.S. 757, 76 L. Ed. 2d 298, 103 S. Ct. 2177, for the proper standard to be applied in determining if public policy has been violated. “[T]he contract as interpreted by the arbitrator must violate ‘some explicit public policy’ that is ‘well defined and dominant, and is to be ascertained “by reference to the laws and legal precedents and not from general considerations of supposed public interests.” ’ ” (Emphasis in original.) (Blasingame, 124 Ill. 2d at 261, quoting W.R. Grace, 461 U.S. at 766, 76 L. Ed. 2d at 307, 103 S. Ct. at 2183, quoting Muschany v. United States (1945), 324 U.S. 49, 66, 89 L. Ed. 744, 756, 65 S. Ct. 442, 451.) The violation of public policy must be clearly shown. Blasingame, 124 Ill. 2d at 261.

Plaintiffs argue that the public policy of ensuring the integrity of the correctional system requires the vacation of the arbitrator’s award. The only case they cite to support this position is Sutton v. Civil Service Comm’n (1982), 91 Ill. 2d 404, 438 N.E.2d 147, in which the court affirmed the discharge by the Civil Service Commission of a program supervisor at a correctional center for statements made to an inmate concerning the murder of the prison warden, as an indication that the Illinois Supreme Court has recognized the sensitive and critical nature of employment within the Department of Corrections. There, however, the question before the court was whether the Commission had acted in an arbitrary or unreasonable manner in discharging Sutton, not whether an arbitrator’s award violates the public policy of the State. Moreover, the misconduct in Sutton was directly related to the employee’s job, as opposed to this case, where Burress’ misconduct was collateral to his job responsibilities.

Further, plaintiffs contend, reinstatement of Burress would send a message to other parole officers that they need not obey the law in order to maintain their position, and that the two-month suspension which Burress received would not serve the public interest. Plaintiffs urge that there is' an obvious distinction between hiring a rehabilitated former felon as the Department does, and retaining an employee who pleads guilty to committing a felony after he is employed.

Defendant counters that our focus should be on the arbitrator’s award itself. (See Edwards, Judicial Review of Labor Arbitration Awards: The Clash Between the Public Policy Exception & the Duty to Bargain, 64 Chi.-Kent L. Rev. 3, 18 (1988) (“[T]he focus is properly directed to whether the arbitrator’s award, as opposed to the underlying behavior which led to [the employee’s] dismissal, violated some public policy”).) Specifically, defendant argues that the question is whether reinstatement of Burress violates a clearly defined public policy.

Similar arguments were made in Blasingame. There, the Department of Mental Health argued that the reduction of discipline of two employees from discharge to suspension would violate the public policy against mistreatment of the mentally ill and mentally retarded, and would have a negative effect on employee discipline and on the public trust in the government’s treatment of mental health recipients. (Blasingame, 158 Ill. App. 3d at 593.) AFSCME argued that the policy against reinstating employees found guilty of mistreatment of service recipients was not found in explicit laws and legal precedent, as required by W.R. Grace, but rather from general considerations of public policy, and therefore was not grounds for reversing the arbitrator’s ruling. Blasingame, 124 Ill. 2d at 261-62.

In addressing these arguments, the court acknowledged the importance of the compassionate care of the mentally ill and mentally retarded, but nevertheless found that

“[t]he collective-bargaining agreement as interpreted by the arbitrator does not violate any explicit public policy that is well defined and dominant. There is simply no policy that mandates the discharge of all employees found guilty of mistreatment of a service recipient when the arbitrator expressly finds that the grievants were exemplary mental health employees, when punishment has been imposed, and where no nexis [sic] exists between the infraction and the patient’s tragic death.” Blasingame, 124 Ill. 2d at 262-63.

Here, there is no well-defined or dominant policy mandating discharge of this parole officer because of the felony which he committed. This conclusion is tacitly corroborated by the fact that, except for Sutton, which is inapplicable for the reasons already stated, plaintiffs have been unable to point to any authority attesting to a dominant public policy to the contrary. The arbitrator, in his ruling, specifically noted that other felons are employed as parole officers, and concluded that the fact Burress had committed a felony was not conduct so inherently wrong as to disqualify him from his job. Furthermore, Burress’ employment record was otherwise substantially unblemished. In addition, Burress was independently punished for his criminal act. In Federal court, he was placed on probation, and ordered to make restitution and perform a substantial number of hours of community service. When the arbitrator ordered reinstatement, he did it without back pay. Accordingly, we hold that the arbitrator’s reduction of Burress’ discipline from discharge to suspension and reinstatement without back pay does not contravene any well defined and dominant public policy of this State.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause remanded with directions to the trial court to order enforcement of the arbitrator’s award.

Reversed and remanded with directions.

MURRAY and McNULTY, JJ., concur.