author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DANIEL VALENZUELA, Defendant-Appellee.
    Second District
    No. 2—88—0245
    Opinion filed March 16, 1989.

      Robert F. Casey and Gary V. Johnson, State’s Attorneys, of Geneva (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Lawrence D. Wechter, of Benson, Mair & Gosselin, of Batavia, and G. Joseph Weller and Roger Warner, both of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

The State appeals from an order of the circuit court of Kane County dismissing an indictment which charged defendant, Daniel Valenzuela, with the offenses of burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1) and possession of burglary tools (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 2). On appeal, the State contends that the trial court erred in dismissing the indictment with prejudice because defendant failed to show that the refiling of the indictment would deny him due process.

On April 20, 1987, defendant was charged by a two-count complaint with burglary and possession of burglary tools. After two continuances requested by the State and two continuances requested by the defendant, a preliminary hearing was conducted on August 6, 1987, on the complaint against defendant. At the conclusion of the hearing, the trial court determined that there was no probable cause to support either count of the complaint. It appears that the State’s only witness was unable to properly identify either the location of the burglarized motor vehicle or the owner of the vehicle as alleged in the complaint.

Defendant was recharged with burglary and possession of burglary tools by a two-count complaint filed on September 24, 1987. This complaint only differed from the prior complaint in that the address at which the alleged burglary occurred was changed from 1249 E. Wilson to 849 E. Wilson. On December 3, 1987, defendant filed a motion to dismiss the second complaint contending that it was factually identical to the prior complaint except for the address alleged in the burglary count and, therefore, should be dismissed based on the principles of res judicata and collateral estoppel. At a hearing on defendant’s motion to dismiss, the State requested leave to amend the complaint to state that the burglarized automobile belonged to Donald Moug, not Jeffery Reinert as alleged therein. The trial court stated that the State’s amendments did not constitute a material part of the charges and granted defendant’s motion to dismiss on the basis that the second complaint brought the same charges raised in the first complaint.

On December 22, 1987, defendant was charged in a two-count indictment with burglary and possession of burglary tools. The indictment was identical to the second complaint with the exception that the name of the owner of the burglarized motor vehicle was changed from Jeffery Reinert to Donald Moug.

Defendant then filed a motion to dismiss the indictment. In his motion, defendant urged dismissal of the indictment based on the State’s failure to advise the grand jury, pursuant to section 112 — 4(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 112 — 4(b)), that a finding of no probable cause as to the charges in the indictment had resulted from the preliminary hearing on its first complaint. Defendant also sought dismissal of the indictment with prejudice for a violation of his due process rights based on harassment by the State. In this latter regard, defendant argued at the hearing on his motion to dismiss, relying on People v. Overstreet (1978), 64 Ill. App. 3d 287, 381 N.E.2d 305, that the State’s repeated charging constituted harassment which denied him due process. Defendant did not argue before the trial court, nor does he in this appeal, that the State intentionally harassed him, but rather, argues that the State’s mismanagement of the case resulted in “legal” harassment. The State agreed that the indictment should be dismissed for its failure to comply with section 112 — 4(b), but argued the dismissal should be without prejudice to seek reindictment.

The trial court, in ruling on defendant’s motion, indicated that, absent the delay in this case, it would agree with the State. The court ruled, however, that the eight-month period of time between the initial charging of defendant on April 20, 1987, and the December 22, 1987, indictment against defendant was excessive and, although unintentional, it constituted an unnecessary delay requiring dismissal of the indictment with prejudice.

On appeal, the State contends that the trial court lacked the authority to dismiss the indictment with prejudice. The State argues, citing People v. Overstreet (1978), 64 Ill. App. 3d 287, 381 N.E.2d 305, that there is no evidence of harassment or bad faith in this case because both of those terms imply intentional misuse of the State’s charging power and the defendant has conceded that the State did not act intentionally. The State further maintains that, as to fundamental unfairness, defendant’s only credible argument is that of excessive delay.

Defendant responds that the State’s repeated attempts to charge him constitute harassment because they have unreasonably annoyed and alarmed him. He further maintains that the State’s mismanagement of the case, which has resulted in his being repeatedly charged, whether intentional or not, constitutes harassment. Although the trial court dismissed the indictment because of unnecessary delay, defendant has not relied on this rationale on appeal. Nevertheless, as this was the basis of the dismissal, we shall first address the correctness of the trial court’s reasoning in this regard.

A circuit court may dismiss criminal charges before trial only when authorized to do so by supreme court rule, statute, or when there has been a clear denial of due process. (People v. Fleet (1988), 168 Ill. App. 3d 126, 130, 522 N.E.2d 244.) Generally, a trial court has the inherent authority to dismiss a charge before trial where there has been an unequivocally clear denial of due process, but must proceed with restraint and ascertain preindictment denial of due process only with certainty. (People v. Lawson (1977), 67 Ill. 2d 449, 456-57, 367 N.E.2d 1244.) In the context of preindictment delay, a defendant must first make a clear showing of actual and substantial prejudice. (Lawson, 67 Ill. 2d at 459, 367 N.E.2d at 1248.) If he does so, the burden then shifts to the State to show the reasonableness, if not the necessity, of the delay. (Lawson, 67 Ill. 2d at 459, 367 N.E.2d at 1248.) Finally, if this two-step process ascertains both substantial prejudice and reasonableness of the delay, then the court must balance the interests of the defendant and the public in determining whether to dismiss the charge. (Lawson, 67 Ill. 2d at 459, 367 N.E.2d at 1248.) Factors the court should consider in this balancing of interests are, among others, the length of the delay and the seriousness of the crime. Lawson, 67 111. 2d at 459, 367 N.E.2d at 1248.

In this case, defendant failed to establish an unequivocally clear denial of due process. As to the preindictment delay, defendant did not make the preliminary showing of actual and substantial prejudice as required by Lawson. In fact, the record is devoid of any evidence that defendant was prejudiced by the delay in indicting him. The trial court dismissed the indictment with prejudice based upon the length of the delay without a showing by defendant of actual and substantial prejudice. Such a dismissal on this record was erroneous under the standards enunciated in Lawson.

Defendant, however, argued in the trial court, as he does on appeal, that the State’s recharging him twice after the no probable cause finding at the preliminary hearing constitutes harassment. In so arguing, defendant relies on People v. Overstreet (1978), 64 Ill. App. 3d 287, 381 N.E.2d 305, as does the State. In Overstreet, the court stated that a finding of no probable cause at a preliminary hearing does not bar the State from seeking a second preliminary hearing on the same charge, absent a showing of harassment, bad faith or fundamental unfairness. (Overstreet, 64 Ill. App. 3d at 289, 381 N.E.2d at 307.) The issue in Overstreet was whether the State could refile the same information and proceed to another preliminary hearing after a finding of no probable cause at a previous preliminary hearing. The court stated that a subsequent proceeding by either indictment or information is barred if it reaches the point of harassment, thereby violating due process, but a second preliminary hearing does not per se violate due process. Overstreet, 64 Ill. App. 3d at 289, 381 N.E.2d at 307.

Also instructive generally is People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244. While Lawson presented a preindictment delay question, the analysis is grounded upon whether due process has been denied. In Lawson, the court concluded that, to insure a fair trial, a trial judge has inherent authority to dismiss an indictment in a criminal case where there has been a clear denial of due process even though that is not a stated ground for dismissal in section 114 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 1). (Lawson, 67 Ill. 2d at 455, 367 N.E.2d at 1247.) In the context of preindictment delay, the court stated that trial courts must proceed with restraint at the pretrial stage and ascertain a denial of due process only with certainty, following an evidentiary hearing. Lawson, 67 Ill. 2d at 457, 367 N.E.2d at 1247.

Applying the due process analysis of Lawson and Overstreet, we conclude that defendant has failed to establish any harassment on the part of the State in seeking to indict him under these circumstances. He offered no evidence of any intent on the part of the State to harass him or that the State acted in bad faith in seeking to recharge him. It is apparent from the record that the second complaint against defendant was filed by the State because the first complaint did not allege the correct victim of the crime and the address where the crime occurred. Under these circumstances, the trial court, rather than dismissing the complaint, should have allowed the State to amend the second complaint. These facts certainly do not show harassment by the prosecution. Defendant does argue, however, that intent to harass is irrelevant where, as here, the State has mismanaged the case in terms of charging him. It may very well be that the State has not handled this case in the most effective and efficient manner possible; however, absent a showing of intentional harassment of defendant or prejudice to defendant, it cannot be said that the State’s mismanagement of this case denied defendant due process.

Further, we are unpersuaded by defendant’s argument that the State’s repeated attempts to charge him have unreasonably annoyed and alarmed him and thus denied him due process. Defendant was released from custody following the trial court’s initial finding of no probable cause, and, absent a showing of actual and substantial prejudice, such mere assertions of annoyance and alarm do not rise to the level of the denial of due process.

Under these circumstances, defendant has failed to establish that the State denied him due process by seeking to indict him and, therefore, the trial court erred in dismissing the indictment with prejudice. Because the State concedes that it is not challenging in the appeal the propriety of the dismissal of the indictment without prejudice on the basis of its failure to notify the grand jury of the previous finding of no probable cause, we need not examine that question. Although an indictment may be dismissed where the grand jury acted contrary to article 112 of the Code of Criminal Procedure of 1963 (see Ill. Rev. Stat. 1987, ch. 38, pars. 114 — 1(a)(5), 112 — 1 et seq.), the dismissal order does not prevent the return of a new indictment (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 1(e)).

The judgment of the circuit court of Kane County is affirmed but modified, pursuant to our authority under Supreme Court Rule 615(b)(1) (107 Ill. 2d R. 615(b)(1)), so that the dismissal of the indictment is without prejudice.

Affirmed as modified.

UNVERZAGT, P.J., and INGLIS, J., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    THE TOWN OF LIBERTYVILLE, Plaintiff-Appellant, v. LAWRENCE BLECKA et al., Defendants-Appellees.
    Second District
    No. 2—88—0298
    Opinion filed March 22, 1989.
    Rehearing denied April 17, 1989.

      Charles J. Siemon, Gerald P. Callaghan, and James N. Azim III, all of Siemon, Larsen & Purdy, of Chicago, for appellant.
    David F. Pardys, of Brydges, Riseborough, Morris, Franke & Miller, of Waukegan, for appellees Lawrence Blecka, Lydia Blecka, and Allan Carney.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Waukegan, for ap-pellees Jack W. Dorsey and Marcella Hout.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Town of Libertyville (Libertyville), appeals from an order of the trial court which dismissed its complaint for condemnation against defendants, Lawrence Blecka et al. Libertyville sought to acquire a 10-acre parcel of land from defendants pursuant to the Township Open Space Act (Act) (111. Rev. Stat. 1987, ch. 139, par. 321 et seq.). On appeal, Libertyville contends that the trial court erred in determining that, under the Act, open land or open space means a parcel of land which has a size of 50 acres or more.

Libertyville has acquired the fee simple or a lesser interest in 650 acres of land as part of its open-space program and is seeking to acquire an additional 1,300 acres. On September 16, 1987, Libertyville filed an eminent domain action against defendants to acquire a 10-acre parcel of land. On its eastern border, the 10-acre parcel abutted 285 acres of existing township open space. On its western border, the parcel adjoined a 70-acre tract of land which Libertyville made the subject of a separate condemnation action.

In their motion to dismiss Libertyville’s complaint, defendants alleged that (1) under the Act, Libertyville did not have the authority to condemn a parcel of land which was less than 50 acres, and (2) Liber-tyville did not make a bona fide attempt to compensate defendants for their property prior to instituting eminent domain proceedings. After it conducted a hearing on defendant’s motion, the trial court dismissed Libertyville’s complaint. In a written order, the trial court made the following findings:

“1. Plaintiff Town of Libertyville made a bona fide attempt to agree on the compensation to be paid to Defendants prior to the filing of the Complaint, and the parties were not able to agree on compensation.

2. The property that is the subject of the Complaint for Condemnation (‘the Subject Property’) is approximately ten (10) acres and is therefore not open land within the meaning of 111. Rev. Stat. ch. 139, §322(b) because it is less than 50 acres.

3. Because the Court finds that the Subject Property is not open land, Plaintiff does not have authority to condemn the Subject Property under 111. Rev. Stat. ch. 139, §324.02.”

From that order, Libertyville has timely brought this appeal.

The sole issue raised on appeal is whether a parcel of land with an area of less than 50 acres can be considered open land pursuant to section 2(b) of the Act (111. Rev. Stat. 1987, ch. 139, par. 322(b)).

Section 2(b) of the Act states:

“ ‘Open land’ or ‘open space’ means any space or area of land or water of an area of 50 acres or more, the preservation or the restriction of development or use of which would maintain or enhance the conservation of natural or scenic resources; protect natural streams or water supply; promote conservation of soils, wet lands or shores; afford or enhance public outdoor recreation opportunities; preserve flora and fauna, geological features, historic sites or other areas of educational or scientific interest; enhance the value to the public of abutting or neighboring highways, parks or other public lands; implement the plan of development adopted by the planning commission of any municipality or promote orderly urban or suburban development.” (Emphasis added.) 111. Rev. Stat. 1987, ch. 139, par. 322(b).

It is undisputed that plaintiff was authorized in an election held pursuant to section 3 of the Act (Ill. Rev. Stat. 1987, ch. 139, par. 323) to institute an open-space program. Plaintiff’s board of trustees thereby received the authority pursuant to section 4.02 of the Act (Ill. Rev. Stat. 1987, ch. 139, par. 324.02) to acquire the fee or any lesser interest in open land as that term is defined in section 2 of the Act (Ill. Rev. Stat. 1987, ch. 139, par. 322). Under section 4.02, open land may be acquired by gift, legacy, purchase, or through the exercise of the right of eminent domain.

Our reading of the relevant statutes, stripped of irrelevant references, empowers the township:

“To acquire by *** condemnation *** the fee *** in real property that is open land, as defined in Section 2 [Ill. Rev. Stat. 1987, ch. 139, par. 322(b)] ***.” (Ill. Rev. Stat. 1987, ch. 139, par. 324.02.)

And, the Act defines “open land”:

“ ‘Open land’ *** means any *** area of land *** of an area of 50 acres or more ***.” (Ill. Rev. Stat. 1987, ch. 139, par. 322(b).)

Defendants contend that under these provisions, only areas of land consisting of 50 acres or more can qualify for condemnation as open space. Plaintiff argues that these provisions were only intended to impose a minimum acreage requirement upon a township’s entire open-space program.

When a court interprets a statutory provision, it must attempt to ascertain and give effect to the intent of the legislature in enacting the provision. (Town of Libertyville v. Bank of Waukegan (1987), 152 Ill. App. 3d 1066, 1070.) If this can be done solely by examining the language of the provision, the court may not resort to other aids for construction. (Maloney v. Bower (1986), 113 Ill. 2d 473, 479.) When a statute contains language with an ordinary and popularly understood meaning, the courts will assume that its meaning was intended by the legislature. (People v. Haywood (1987), 118 Ill. 2d 263.) When interpreting a statute, the courts must give the language of the statute its plain and ordinary meaning. (Maloney v. Bower (1986), 113 Ill. 2d 473.) The legislature has the power to define terms within a statute in any reasonable manner. (Commonwealth Edison Co. v. Property Tax Appeal Board (1984), 102 Ill. 2d 443.) If the statutory language is clear and unambiguous, the court must give effect to that language. Maloney, 113 Ill. 2d at 479.

Section 2(b) of the Act defines the terms “open land” and “open space” as “any space or area of land or water of an area of 50 acres or more” which has one or more of the open-space attributes which are subsequently mentioned. We believe that an ambiguity exists with regard to the meaning of the word “area” the second time that word appears in section 2(b). The first time the word “area” appears in the provision, it is clear from the context that the legislature intended it to be synonymous with the word “region.” It is not clear whether the legislature intended the term “area” to have the same meaning the second time it appears in section 2(b) or if it intended that term to be synonymous with “size.” If the legislature intended the phrase “of an area” to mean “of a size,” defendants’ interpretation of section 2(b) is correct, and plaintiff can only acquire parcels of land measuring 50 acres or more. Otherwise, a parcel may be acquired if it is part of a larger tract of 50 acres or more with one or more open-space attributes.

Defendants’ construction of section 2(b) would certainly be correct if the phrase “of an area” had been omitted from the provision. Section 2(b) would then define open land as “any space or area of land or water of 50 acres or more” with one or more of the subsequently mentioned open-space attributes. Defendants’ interpretation therefore renders the phrase “of an area” in section 2(b) entirely superfluous. Statutes should be construed so that no word or phrase is rendered superfluous or meaningless. (Niven v. Siqueira (1985), 109 Ill. 2d 357, 365.) This factor militates strongly against defendants’ interpretation of the relevant language.

Furthermore, one of the objectives of the Act is to facilitate the transfer or acquisition of land for open-space purposes. This objective becomes apparent when the Act is examined as a whole. Section 4.02 authorizes the acquisition of the fee or any lesser right in property that meets the definition of open land by gift, legacy, purchase, or through the exercise of eminent domain powers. Section 4.09 allows entities which have enacted open-space programs to lease land for a period of up to 50 years to individuals, firms, or corporations, and section 4.10 allows such entities to lease buildings for a period not to exceed 20 years. The flexibility provided in these provisions with regard to land acquisition and transfer is at odds with defendants’ interpretation of section 2(b), which would restrict acquisitions of land under the Act to parcels of 50 acres or more. We reject defendants’ interpretation of section 2(b) and conclude that land may be considered open land if it is a portion of a parcel of 50 acres or more with one or more of the open-space attributes subsequently mentioned in the provision.

It is readily apparent from a review of the Act that its primary purpose is to permit and encourage local governments to insulate large areas of land from the increasing tide of development and to thereby promote environmental concerns, enhance conservation of scenic or natural resources, and afford the public increased recreational opportunities. We believe the legislature recognized that local governments would not make significant progress toward these goals by acquiring small tracts of land less than 50 acres in total size in the midst of developed regions. The 50-acre requirement as we have interpreted it prohibits local governments from doing this, but does not unduly restrict their ability to obtain tracts of land comprising at least 50 acres in the aggregate pursuant to the Act.

We also take note that the Act has recently been amended by the legislature (see Pub. Act 85 — 1140, eff. July 29, 1988). Section 4.02 formerly exempted all land used for farming or agricultural purposes from acquisition through eminent domain. The Act now only exempts such land if it has an area of more than 10 acres. This amendment makes it clear that parcels of less than 50, or even less than 10, acres may be obtained under the Act. Under defendants’ interpretation of section 2(b), however, a five-acre parcel of land could only be obtained if at least 45 adjoining acres were obtained simultaneously. In many, if not most instances, a parcel of land with an area of 50 acres or more will not all be owned by the same individual or entity. A local government may have to deal with a large number of landowners in order to obtain 50 acres of land. As a practical matter, defendants’ interpretation could compel local governments to institute eminent domain proceedings against each of the landholders under such circumstances, even if many of them would be willing to sell or lease their land to the locality and only a few were recalcitrant. We do not believe that the legislature wished to place such unnecessary impediments in the way of local governments seeking to implement open-space programs.

The amended Act requires local governments enacting open-space programs after July 29, 1988, to draw up an open-space plan specifically setting forth the land which the locality wishes to obtain pursuant to the Act. The voters of the township must then approve the open-space plan in a referendum. (See Pub. Act 85 — 1140, eff. July 29, 1988 (amending 111. Rev. Stat. 1987, ch. 139, par. 321 et seq.).) Under our interpretation of section 2(b) of the Act, the tracts of land identified in open-space plans must each have an area of 50 acres or more. If the open-space plan is approved in a referendum, the local government is then authorized to obtain any portion of the parcels of land mentioned in the plan. This interpretation of section 2(b) is consistent with other previously cited provisions of the Act which ensure flexibility with regard to land acquisition and transfer to local governments attempting to implement the Act and attain its worthy objectives of promoting environmental and aesthetic values in their communities.

Accordingly, defendant’s 10-acre tract of land may be subject to plaintiff’s right of eminent domain provided defendant’s land is a portion of a tract 50 acres or more being contemporaneously condemned by the plaintiff, or where the defendant’s land abuts or adjoins a tract 50 acres or more already owned by the plaintiff as part of its open-space program. The 285 acres of existing township open-space and the 70-acre tract subject to eminent domain proceedings may be taken into account in making the determination whether the taking is in compliance with the definition of open land in section 2(b) of the Act. Since we are of the opinion that the circuit court erroneously concluded that defendants’ land was exempt from condemnation under the Act because it was less than 50 acres in size, we reverse the order granting defendants’ motion to dismiss and remand the cause for further proceedings. The judgment of the circuit court of Lake County is reversed, and the cause is remanded.

Reversed and remanded.

DUNN and WOODWARD, JJ., concur.


text:
    GREGORY THUROW, Plaintiff-Appellant, v. THE POLICE PENSION BOARD OF THE VILLAGE OF FOX LAKE et al., Defendants-Appellees.
    Second District
    No. 2—88—0553
    Opinion filed March 16, 1989.

      Robert E. Lessman, of Hall, Holmberg, Roach, Johnston, Fisher & Lessman, of Waukegan, and Marshall P. Patke, of Clark, Pfetzer & Patke, of Lake Forest, for appellant.
    William G. Rosing and Suzanne A. Lindsay, both of Rosing, Applehans & Smith, Ltd., of Waukegan, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Gregory Thurow, appeals from an order of the circuit court of Lake County which, on administrative review, affirmed the decision of the Village of Fox Lake Police Pension Board (Board). The Board denied plaintiff’s application for a duty-related disability pension under section 3 — 114.1 of the Illinois Pension Code (Code) (111. Rev. Stat. 1985, ch. IO8V2, par. 3 — 114.1). We reverse and remand.

Plaintiff raises four assignments of error on appeal: (1) whether the Board erroneously relied upon medical reports of examinations taken long after plaintiff applied for his pension; (2) whether the Board should not have considered any evidence regarding the source of plaintiff’s injury because such evidence was presented in plaintiff’s claim for unemployment compensation; (3) whether plaintiff was judged fairly and with impartiality at the hearing given the fact that the Board’s attorney actively participated in the proceedings; and (4) whether the Board’s decision that a light-duty position was available was against the manifest weight of the evidence.

Plaintiff began his employment with the Fox Lake police department in February 1983, and he obtained the rank of patrolman in February 1984 after he successfully completed his one-year probationary period. On April 16, 1984, plaintiff responded to a domestic disturbance call. During the call, a struggle occurred and plaintiff was injured, although he did not notice his lower back injury until the following day. He continued to work for approximately two weeks, until such time as the pain forced him to leave his shift early and return home. Plaintiff stayed at home from May 3, 1984, to May 16, 1984. He returned to work on May 17, 1984, and performed light duties per his physician’s advice. Around July 1, 1984, plaintiff returned to his regular duties as a patrolman. He continued this position until February 22, 1985, when he again left work early due to his lower back pain. Plaintiff was placed on temporary total disability from February 22, 1984, until July 4, 1986, receiving workers’ compensation benefits. Plaintiff visited several doctors and was hospitalized for tests during this period.

On November 5, 1985, plaintiff applied for a duty-related disability pension. Plaintiff submitted reports of physical examinations to the Board, and a hearing was held on March 4, 1987. Plaintiff testified at the hearing that he was presently working as a salesman and security guard for Collins Investigations, but that he was looking for a new job in the insurance investigation field. Plaintiff also stated that he played golf two or three times per month in the summer.

In a letter dated June 26, 1987, the Board notified plaintiff that his request for a disability pension was denied. The Board listed four reasons for the denial: (1) the lack of specific medical testimony concerning plaintiff’s disability; (2) plaintiff’s current job situation and the fact that he does play golf indicate that he could still hold a job with the police department; (3) plaintiff’s injury appears to be a preexisting condition; and (4) the police report written after the domestic disturbance incident did not state any injuries to the officers involved.

On July 24, 1987, plaintiff appealed the Board’s decision to the circuit court of Lake County under the Administrative Review Law (HI. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.). On May 10, 1988, the trial judge entered an order affirming the Board’s decision. The judge noted that he was unable to find that the Board’s decision was against the manifest weight of the evidence. This appeal followed.

Initially, we note that the function of a court in reviewing a decision of an administrative agency is not to reweigh the evidence but instead to determine whether the agency’s decision is against the manifest weight of the evidence. (Collura v. Board of Police Commissioners (1986), 113 Ill. 2d 361, 372-73; Boffa v. Department of Public Aid (1988), 168 Ill. App. 3d 139, 145.) Under section 3 — 110 of the Administrative Review Law, the findings and conclusions of an administrative agency on questions of fact are held to be prima facie true and correct and must be affirmed unless they are contrary to the manifest weight of the evidence. (Fadler v. State Board of Education (1987) , 153 Ill. App. 3d 1024, 1026; Smith v. Department of Public Aid (1986), 150 Ill. App. 3d 584, 586.) An administrative decision is not contrary to the manifest weight of the evidence merely because an opposite conclusion is reasonable or if the reviewing court might have ruled differently. (Fadler, 153 Ill. App. 3d at 1026; Collura, 135 Ill. App. 3d at 838.) However, a court of review should not hesitate to intervene when an administrative order is against the manifest weight of the evidence. Greer v. Illinois Housing Development Authority (1988) , 122 Ill. 2d 462, 497; Southern Illinois Asphalt Co. v. Pollution Control Board (1975), 60 Ill. 2d 204, 207.

Duty-related disability pensions for police officers are provided for in section 3 — 114.1 of the Code. Section 3 — 114.1 provides in part:

“If a police officer as the result of sickness, accident or injury incurred in. or resulting from the performance of an act of duty, is found to be physically or mentally disabled for service in the police department, so as to render necessary his or her suspension or retirement from the police service, the police officer shall be entitled to a disability retirement pension of 65% of the salary attached to the rank on the police force held by the officer at the date of suspension of duty or retirement.” (Ill. Rev. Stat. 1985, ch. IO8V2, par. 3-114.1.)

Thus, plaintiff was required to show that he was injured while performing a duty, that the injury caused him to become disabled, and that the disability made it necessary for him to retire from the police force.

A total of seven physicians examined Officer Thurow at various times since the date of his injury. The Board appointed three of the seven physicians to examine plaintiff. These opinions were inconclusive as to whether Officer Thurow could resume his duties as a police officer. Dr. Matz stated in his report:

“Mr. Thurow at this date in time does not manifest any specific neurologic derangement. It would appear that his request for disability is related to his ongoing subjective low back complaints. *** I cannot state with any definitive certainty that a condition of arthritis about the lower back would prohibit this gentleman from returning to work as a police officer.”

Dr. Apfelbach stated:

“It is my opinion that this patient cannot perform all the duties of a police officer. I feel that he cannot be involved in work which involves restraining individuals or which involves lifting more than 30 lbs. on a repetitive basis. I feel that driving a squad car and getting in and out of the squad car repetitively is a job of which he is marginably [sic] capable.”

The third appointed physician, Dr. Loughran, stated:

“I do not find a great deal of neurological deficit to account for his severe symptoms.
However, he does have x-ray findings of degenerative disc disease and with two previous disc injections, I would recommend he be restricted to a lighter type of work.”

Four other physicians examined plaintiff, and two of their reports were admitted into evidence at the Pension Board hearing. The Board received the recommendations of Dr. Stone and Dr. Pawl. Dr. Stone stated:

“Diagnosis is acute injury to the lumbar spine causing disc involvement with nerve root irritation. *** Mr. Thurow will not be able to return to his employment on a permanent basis.”

It was the opinion of Dr. Pawl that:

“Mr. Thurow will not be able to carry out occupational activities that require repeated bending, lifting or twisting, or lifting more than 25 pounds on a regular basis or up to 50 pounds occasionally. This meets the Southern California guidelines of medium activity level. Mr. Thurow is currently capable of meeting that activity level, and is released to seek occupational activities within that framework.”

The only other evidence that the Board heard was the testimony of Officer Thurow. Officer Thurow stated that he was presently employed as a part-time security guard and salesman and that it was possible for him to hold a full-time position. He testified that he was currently looking for a full-time position as an insurance investigator. He further stated that he could perform light-duty work for the police department and that he enjoys playing golf in the summer.

Officer Thurow first contends that the Board erroneously relied on medical reports of doctors who examined plaintiff some 9 to 10 months after he filed the pension application. Plaintiff claims that Hahn v. Police Pension Fund (1985), 138 Ill. App. 3d 206, supports the proposition that the only pertinent evidence of plaintiff’s fitness for duty are those examinations of plaintiff at or near the date he applied for a pension. In Hahn, the appellate court reversed the pension board’s decision because it erroneously relied upon psychiatric reports of examinations taken long after plaintiff claimed he was mentally unfit for duty. The court noted that of the four psychiatrists who examined the police officer near the time of his resignation, three concluded he was unfit for duty. (Hahn, 138 Ill. App. 3d at 211.) Officer Thurow claims that the Hahn decision precludes the use of all of the appointed physicians’ reports in determining whether he was entitled to a disability pension. He makes this claim even though both parties stipulated that these reports were competent evidence. It is also true that no objections were made as to the admissibility of the reports. We deem the issue waived because a question not raised in the trial court may not be raised for the first time on appeal. Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500-01; Bloom v. Guth (1987), 164 Ill. App. 3d 475, 479.

Plaintiff next contends that the Board should not have considered any evidence concerning the source of plaintiff’s injury because such evidence was already presented in his claim for unemployment compensation. Plaintiff notes that the Village of Fox Lake stipulated in the workers’ compensation benefits settlement agreement that plaintiff was injured “while responding to a domestic call, was struck by the offender and fell on his back.” Plaintiff claims that this stipulation is res judicata with respect to the cause of the injury. We agree that the settlement agreement may be res judicata as to causation but may not be res judicata as to the nature and extent of the disability. (Smith v. Industrial Comm’n (1984), 125 Ill. App. 3d 999, 1003.) The Board claims that it did not relitigate the question of whether Officer Thurow’s injury was job related. Indeed, the record reveals that the Board was simply concerned with the degree of Officer Thurow’s disability. At no time did the Board conclude that plaintiff was not injured in the line of duty. The Board simply determined that, in spite of Officer Thurow’s injury, there was a position available in the police department which would allow plaintiff to continue his employment as a police officer. It was necessary for the Board to consider the degree of plaintiff’s disability in determining whether he should qualify for a duty-related disability pension.

The Board found, and the trial court agreed, that there were no reasons why plaintiff could not hold some position with the Fox Lake police department. This decision was based on plaintiff’s current employment situation and his attempts to find work as an insurance investigator. These factors were proper considerations with respect to the degree of disability, and not as to whether plaintiff was injured in the line of duty. We therefore find plaintiff’s res judicata argument to be inapplicable with respect to the Board’s determination as to the severity of plaintiff’s disability.

Plaintiff also argues that the Board did not act fairly and with impartiality with respect to plaintiff’s application because the Board’s attorney acted in a prosecutorial role and also participated in the judging of the merits of plaintiff’s claim. Plaintiff cites Phillips v. Board of Fire & Police Commissioners (1974), 24 Ill. App. 3d 242, for the proposition that the Board cannot act as both the prosecutor and the judge in the same case. In Phillips, the Board conducted the prosecution and rendered an adverse decision to the plaintiff. (Phillips, 24 Ill. App. 3d at 243.) The appellate court held that the Board’s decision was erroneous. The court noted that there can never be a merger of the prosecutorial and judicial functions in a court or a quasi-judicial proceeding. (Phillips, 24 Ill. App. 3d at 244.) Officer Thurow claims that Phillips supports his position that he was deprived of a fair hearing because the Board’s attorney acted in a prosecutorial manner.

Plaintiff’s contention is not supported by the record. Our review of the record indicates that plaintiff received a full and fair hearing. We find nothing unfair in having one attorney representing the Board, a second attorney conducting the examination of witnesses and the presentation of evidence, and a third attorney representing the police officer. There is no evidence to indicate that the Board’s attorney participated in the examination of any witnesses or objected to the presentation of any evidence. His role was simply to advise the Board on the law at all times during the hearing and subsequent to the hearing.

The Board is allowed to have counsel present both during and after a hearing. (Sheehan v. Board of Fire & Police Commissioners (1987), 158 Ill. App. 3d 275, 279-80; Westby v. Board of Fire & Police Commissioners (1977), 48 Ill. App. 3d 388, 392.) In addition, the Board appointed an independent counsel to conduct the examination of witnesses and the presentation of evidence. This procedure was more likely to ensure plaintiff a fair and impartial hearing than to deprive him of due process. In sum, we reject plaintiff's contention that the Board’s attorney made it impossible for the Board to conduct a fair and impartial hearing.

Officer Thurow’s final contention is that the Board’s decision was against the manifest weight of the evidence because the evidence showed that he was not capable of fully performing his duties as a police officer. In addition, he notes that there was no evidence presented at the pension hearing to indicate the availability of any light-duty positions in the department as determined by the Board. He thus concludes that he is caught in a “catch-22” position because both the police department and the Board are disclaiming any further responsibility to him. We agree that plaintiff is in a “catch-22” position.

We do not agree with the Board’s determination that Officer Thurow’s pension should be denied because he is presently employed and plays golf. The fact that plaintiff is presently employed as a security guard and salesman, coupled with the fact that he plays golf in the summer, is not indicative of whether he can perform the duties required of a police officer. Plaintiff did not claim, nor could he, that he is totally disabled such that it is necessary for him to retire from the police force. Instead, Officer Thurow asserts that he is disabled by his injuries such that he cannot perform the regular work of a police officer. He readily acknowledged that he was able to perform light-duty work. All of plaintiff’s physicians stated that he could perform light-duty work. Plaintiff testified at the pension hearing that he was willing to work for the police department in a light-duty position. However, plaintiff notes that he was not offered a light-duty position. Thus, plaintiff concludes that such a position was not available to him and therefore he is entitled to a disability pension because he cannot perform the duties of a full-time patrolman. Whether or not a light-duty position with the police department is available has yet to be determined and is the nexus of disagreement between the parties.

As was previously mentioned, section 3 — 114.1 of the Code provides that a police officer will be entitled to a duty-related disability pension if the disability will “render necessary his or her suspension or retirement from the police service.” (Ill. Rev. Stat. 1985, ch. lOSVa, par. 3 — 114.1.) The Illinois Supreme Court has interpreted a similar provision providing for disability pensions for fire fighters in Peterson v. Board of Trustees of the Firemen’s Pension Fund (1973), 54 Ill. 2d 260. In Peterson, the pension board denied the applicant’s request for a line-of-duty disability pension because the applicant was able to perform other duties for the fire department. (Peterson, 54 Ill. 2d at 265.) The Board noted that there was a position open in the fire prevention bureau that could be performed by a person with Mr. Peterson’s physical and mental capabilities. The Illinois Supreme Court affirmed the Board’s decision, holding that a person is not entitled to a duty-related disability pension if he or she is capable of performing duties within the fire department, even if the duties were not those of a fire fighter. Peterson, 54 Ill. 2d at 263-65.

However, the Peterson court was concerned that a number of years had passed since the Board determined that there was a position open in the fire prevention bureau of the fire department. The supreme court determined that the case should be remanded to the circuit court to determine whether the same or a similar position existed. If the position was still available, then Peterson’s pension application should have been denied. If such a position were not available to him, then he would be entitled to a pension. Peterson, 54 Ill. 2d at 265-66.

We find the holding in Peterson to be persuasive as to Officer Thurow’s pension application. We can find nothing in the record to determine whether there are any light-duty positions available in the Fox Lake police department. Officer Thurow testified that he worked for six weeks in a light-duty position in the police department after he returned from his initial layoff. He also testified that he was willing to return to the police department to work in a similar position. However, he notes that he was never offered such a position, nor is he aware that any such position exists. Thus, in the absence of any evidence in the record to determine the availability of such a position, we are faced with the same situation as was the Peterson court. Accordingly, we believe that this case must be remanded to the circuit court to determine whether such a position actually exists. We believe there is insufficient evidence in the record to support the Board’s finding that a light-duty position was actually available to plaintiff. In this regard, the Board’s decision is against the manifest weight of the evidence.

For the above reasons, we reverse the decision of the circuit court of Lake County and remand the case to the circuit court for the purpose of ascertaining if a light-duty position is now available. The circuit court is directed that if a firm offer is made to plaintiff within a reasonable period of time of a position comparable in working conditions, compensation and tenure to the light-duty job previously assigned to him, the decision of the Board is to be upheld. The circuit court shall fix a reasonable period of time to determine if a position is or is not available. If the court finds that there is not such a position offered within a reasonable period of time, the court shall reverse the decision of the Board and enter the appropriate orders to effectuate the disability pension.

Reversed and remanded with directions.

DUNN and NASH, JJ., concur.


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    RONALD L. HERBES et al., Plaintiffs-Appellants, v. F.T. “MIKE” GRAHAM et al., Defendants-Appellees.
    Second District
    No. 2—88—0332
    Opinion filed March 16, 1989.

      Donald T. Morrison, of Donald T. Morrison & Associates, P.C., and Con-zelman, Schultz, Snarski & Mullen, both of Waukegan (Murray R. Con-zelman, of counsel), for appellants.
    Charles L. Siemon, of Siemon, Larsen & Purdy, of Chicago (Gerald P. Callaghan and Andrew C. Stansell, of counsel), for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiffs, Ronald and Suzanne Herbes, appeal from trial court orders which disqualified their attorney and dismissed their suit against defendants, Libertyville Township and the township supervisor. Plaintiffs contend that the trial court (1) erred in regard to their attorney since the requirements for attorney disqualification were not met, and (2) incorrectly held that the Township Open Space Act (Act) (El. Rev. Stat. 1985, ch. 139, par. 321 et seq.) is constitutional.

In November 1985 voters in Libertyville Township passed refer-enda authorizing creation of an open-space district and approving the sale of bonds for the purpose of acquiring open land, including acquisition through condemnation or under threat of condemnation, pursuant to the Act. Shortly after the referenda were passed, township officials interviewed attorney Donald Morrison to determine if he would be suitable to represent the township in land acquisition and condemnation proceedings pursuant to its open-space program. After a DAa-hour discussion, Morrison declined to represent the township and left the interview. Approximately one year later, in October 1986, plaintiffs brought this suit for injunctive relief to restrain township officials from exercising powers and disbursing public funds to execute the open-space program on the ground that the Act is unconstitutional. While plaintiffs assertedly sued in their capacity as taxpayers, the complaint reveals that plaintiffs’ property had been designated as subject to acquisition as part of the township open-space program. Plaintiffs were represented by Morrison.

Pursuant to a motion by the township, Morrison was disqualified. That matter was the subject of a petition for leave to appeal to both this court and the Illinois Supreme Court, but the petitions were denied in both instances. The suit for injunctive relief continued in the trial court, but plaintiffs’ attacks on the constitutionality of the Act were rejected and the matter was dismissed. Plaintiffs appeal from both the disqualification of Morrison and the dismissal of their suit.

The motion to disqualify alleged that Morrison’s representation of plaintiffs violated Canons 4 and 9 of the Illinois Code of Professional Responsibility (107 Ill. 2d Rules 4 — 101 et seq., 9 — 101 et seq.) in that the township had disclosed confidential information regarding its open-space program to Morrison, and plaintiffs were challenging that same program. According to Canon 4: “A lawyer should preserve the confidences and secrets of a client.” Canon 9 further cautions: “A lawyer should avoid even the appearance of professional impropriety.” The parties do not dispute that the Canons apply only if there was an attorney-client relationship between Morrison and the township.

Plaintiffs claim that there was no attorney-client relationship because the consent of both the attorney and the lay party is necessary to such a relationship, and Morrison denied that he consented. They point out that no fee agreement was ever reached, no legal advice was given, and no investigation or legal services were performed by Morrison. While plaintiffs acknowledge that an attorney-client relationship may occur during an initial interview, they maintain that such a relationship does not come into being unless confidential information has been disclosed to the lawyer by the client and that disqualification is necessary only to protect such information from further disclosure by the attorney. Plaintiffs assert that the trial court failed to require a showing that confidences had actually passed between the township and Morrison. Although the township produced affidavits asserting that it revealed confidential facts to Morrison, plaintiffs contend that Morrison could not have been made privy to such information since the acquisition program was still essentially in a conceptual stage and there was no confidential information available at the time he was interviewed.

The township responds that the attorney-client relationship can be found without the factors mentioned by plaintiffs and argues that the actual passage of confidences need not be shown. King v. King (1977), 52 Ill. App. 3d 749, 367 N.E.2d 1358, the only Illinois case found to be on point, supports the township’s position. In King, which involved a wife’s suit for separate maintenance, the reversal of an award of fees to plaintiff’s attorney turned on a finding by the court that an attorney-client relationship had previously existed between the attorney and the defendant-husband and had been concerned with the husband’s marital problems. The relationship was found even though the defendant had spoken with the attorney for only half an hour approximately two years earlier and had not retained him or paid him any fees. Defendant gave uncontested testimony that he had gone to the attorney’s office to get professional advice about his marital difficulties and that he had revealed information regarding his financial situation and his future plans and actions to the attorney. The court remarked that the matter addressed to the attorney by the husband concerned the same problem which prompted the wife’s separate maintenance suit.

Based on these facts the court found that an attorney-client relationship had arisen between defendant and the attorney to the extent that communication between them would be privileged. In support the court cited the following:

“ ‘At the inception of the contacts between the layman and the lawyer it is essential that the layman feel free of danger in stating the facts of the case to the lawyer whom he consults. Even though the lawyer rejects the case and the relation of attorney and client never arose, the usual duties as to privileged communications and conflicting interests should apply.’ ” (King, 52 Ill. App. 3d at 752, quoting L. Patterson & E. Cheatham, The Profession of Law 246 (1971).)

The court added that if the wife had retained another attorney to represent her in her lawsuit, she would not have been able to call her present attorney as a witness regarding the interview with her spouse because of the attorney-client privilege. The court summarized as follows: “The rule applies even though the attorney acquired no knowledge which could operate to the client’s disadvantage. The motives or intentions of the attorney are unimportant. [Citation.] It makes no difference that the client offered no compensation and the attorney neither made nor expected to make any charge for his services.” (King, 52 Ill. App. 3d at 753.) It is clear from the opinion that the court believed the rule which prohibits an attorney from representing conflicting interests should be applied to protect a lay person who has likely communicated confidences to an attorney, regardless of whether or not a further relationship develops between the two.

King is persuasive that an attorney-client relationship also arose in the instant case. The parties do not dispute that Morrison did not provide legal service or advice, that he was not paid a fee, or that the township’s acquisition program had not moved much beyond the conceptual stage. However, there is no question that the interview with Morrison was concerned with the possibility of his representing the township in its open-space acquisition program or that the plaintiffs’ lawsuit involved that same program. In regard to the details of the interview, however, the various affidavits submitted by the township officers and Morrison reflect conflicting impressions as to whether the issues raised in the present suit were discussed during the interview with Morrison. On the other hand, there is ample testimony that the reason the township attorney recommended Morrison and the township supervisor contacted him was because he had extensive experience and considerable expertise in land acquisition and eminent domain procedures. There is no evidence that the township talked to any other attorneys regarding this matter before it talked to Morrison. Thus, there is strong indication that the township hoped and intended to retain Morrison. It is likely that under these circumstances the township representatives spoke freely with him concerning all aspects of their proposed program and how they hoped to achieve it. On these facts, like those in King, it is highly unlikely that if plaintiffs had hired a different attorney to represent them in this suit they would be able to call Morrison to testify regarding his interview with the township. While the decision in King was not based expressly on the Code, it certainly was prompted by the principles which underlie Canons 4 and 9 and supports the conclusion that, in the instant case, an attorney-client relationship was sufficiently formed during the township’s initial interview with Morrison to justify defendant’s invocation of Canons 4 and 9.

Defendant relies also on a number of Federal cases which interpret the American Bar Association Code of Professional Responsibility (ABA Code). Plaintiffs correctly point out that, as a general rule, Federal court decisions as to the law of Illinois, other than decisions of the United States Supreme Court, are not binding on Illinois courts. (See Combs v. Insurance Co. of Illinois (1986), 146 Ill. App. 3d 957, 962, 497 N.E.2d 503.) However, the committee commentary prepared for the Illinois Code of Professional Responsibility makes it evident that the ABA Code served as a model for the Illinois Code and that the ABA language was retained as much as possible in order to facilitate use of the Code in Illinois. Most notably here, the committee stated, in reference to Federal cases interpreting Canon 4: “These cases suggested the advisability of retaining the ABA language in order that ongoing interpretation of that language may be directly relevant to Illinois courts.” (107 Ill. 2d R. 4 — 101, Committee Commentary, at 629.) Accordingly, defendant’s reliance on the Federal cases is appropriate.

Moreover, defendant’s analysis of the Federal cases is accurate. Taken together, the cases teach that an attorney-client relationship need not be explicit or expressed and is not dependent on the amount of time the client spends with the attorney, the payment of fees or execution of a contract, the consent of the attorney, or the actual employment of the attorney. (Westinghouse Electric Corp. v. Kerr-McGee Corp. (7th Cir. 1978), 580 F.2d 1311, 1319; Hughes v. Paine, Webber, Jackson & Curtis, Inc. (N.D. Ill. 1983), 565 F. Supp. 663, 667 n.10, 669.) Rather, the relationship can come into being during the initial contact between the layperson and the professional and appears to hinge on “ ‘the client’s belief that he is consulting a lawyer in that capacity and his manifested intention to seek professional legal advice.’ ” (Westinghouse, 580 F.2d at 1319, quoting McCormick, Evidence §88, at 179 (2d ed. 1972).) Like King, the Federal cases focus on the client’s viewpoint rather than that of the attorney. If the client consults the attorney for the evident purpose of securing legal advice, an attorney-client relationship will probably be found regardless of the attorney’s intent or the fact that a further relationship did not develop as a result of the primary consultation. Thus, the Federal cases support defendant’s contention that an attorney-client relationship existed between itself and Morrison at least to the extent that Canons 4 and 9 are applicable.

Plaintiffs rely on Committee on Professional Ethics & Grievances v. Johnson (3d Cir. 1971), 447 F.2d 169, and Anderson v. Pryor (W.D. Mo. 1982), 537 F. Supp. 890, to support their position that formation of an attorney-client relationship requires not only the consent of the lay party but also the consent of the attorney. Committee on Professional Ethics involved a disbarment matter and was reversed and remanded on grounds of inadequate notice to the respondent attorney of the charges against him. In dicta, the court made the bald statement that an attorney-client relationship is one of agency which calls for the consent of both parties. The statement was made in the context of an explanation that the trial court had not made a determination as to whether such a relationship existed. The court made no examination or analysis of attorney-client relationships either in general or in regard to the situation before it. The case is not helpful to plaintiffs. The Anderson case is not helpful either since the court there expressly based its decision on Missouri law, which we need not follow here.

Since an attorney-client relationship existed, the Canons apply, and it must be decided whether they require Morrison’s disqualification. A motion to disqualify is directed to the sound discretion of the trial court, whose determination will not be disturbed absent a showing of abuse of discretion. (Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc. (1983), 116 Ill. App. 3d 1043, 1053, 452 N.E.2d 804.) Under the Code, where it is shown that the subject matter of a former representation is substantially related to the subject matter of a subsequent adverse representation, the latter representation will be prohibited. (First National Bank v. St. Charles National Bank (1987), 152 Ill. App. 3d 923, 931, 504 N.E.2d 1257; Weglarz v. Bruck (1984), 128 Ill. App. 3d 1, 5, 470 N.E.2d 21; Skokie Gold, 116 Ill. App. 3d at 1056.) Once a substantial relationship is found between the prior and present representations, it is irrebuttably presumed that confidential information was disclosed in the earlier representation. (Weglarz, 128 Ill. App. 3d at 6; Skokie Gold, 116 Ill. App. 3d at 1056.) The confidences disclosed need not be specifically divulged. Weglarz, 128 Ill. App. 3d at 6.

A substantial relationship was found in La Salle National Bank v. Triumvera Homeowners Association (1982), 109 Ill. App. 3d 654, 440 N.E.2d 1073, where members of a defendant homeowners’ association were advised of their rights as owners vis-a-vis a predecessor of the plaintiff by a member of a law firm whose other members represented the plaintiff in a suit again involving the homeowners’ rights. Plaintiff’s attorney in Skokie Gold had previously represented defendant in efforts to do corporate business under various assumed names. This activity was found to be substantially related to the attorney’s subsequent representation of plaintiff in a suit alleging that defendant had violated statutes relating to the use of assumed corporate names. The Weglarz court found a substantial relationship where the parties were involved in litigation springing from the dissolution of their joint business interests, and defendant’s attorney had previously been involved in the formation of those interests as well as in the joint ownership of stock with both plaintiff and defendant. In First National Bank, on the other hand, this court could not find a substantial relationship even though plaintiff’s counsel had represented and counselled defendant and her husband on a variety of matters in previous years. However, the court noted that plaintiff’s counsel had not represented defendant in any significant manner for the preceding five years, and the earlier representation did not concern the transactions which were the subject matter of the present adverse representation. Moreover, any information which might have been given to plaintiff’s attorney by defendant during the earlier representation was outdated or superseded by similar information given to plaintiff by defendant in connection with a later loan application.

In our view the facts of the instant case are far closer to those of La Salle National Bank, Skokie Gold, and Weglarz than they are to the facts of First National Bank. Morrison represented plaintiffs, whose property had been designated as subject to acquisition as part of the township open-space program, in a suit to void the statute which provides authority for the program. It was in connection with the execution of this exact same program that the township previously contacted and consulted with Morrison. Plaintiffs object that there is no evidence that Morrison discussed the constitutional aspects of the Act with the township, whereas the present suit is wholly based on constitutional grounds. This argument places far too narrow a definition on the phrase “subject matter.” As we see it, the township open-space program and, in particular, the land acquisition aspects of the program, constituted the subject matter of both representations. Thus, the two subjects were not only substantially related but were essentially the same. Accordingly, we presume that confidential information was disclosed to Morrison and that his disqualification was, therefore, appropriate.

The facts of the instant case are also persuasive that disqualification was proper in light of Federal cases where the courts have developed a three-prong test to determine whether there is a substantial relationship. The first step involves a factual reconstruction of the prior legal representation. Next, a determination must be made of whether it is reasonable to infer that the confidential information allegedly given would have been given to a lawyer representing a client in those matters. The third prong requires the court to decide if the confidences given by the former client are relevant to the issues raised in litigation pending against him. If the last two questions are answered in the affirmative, an irrebuttable presumption arises that the client imparted confidences to the attorney (Hughes v. Paine, Webber, Jackson & Curtis, Inc. (N.D. Ill. 1983), 565 F. Supp. 663), and disqualification is proper.

Applying the Federal test to the instant case, it is apparent that the prior and subsequent matters were substantially related. The township officials were well aware of Morrison’s expertise and clearly hoped to retain him to help with land acquisition and condemnation where necessary. In these circumstances it is reasonable to infer that confidential information regarding the township’s proposed program would have been placed before Morrison. More importantly, the subject matter of the township’s discussion with Morrison was the very same open-space program which the plaintiffs seek to block. It is compelling that any confidences related during the discussion would be relevant to issues raised by plaintiffs in their suit against the township. Hence, under the Federal cases, disqualification was proper.

Plaintiffs’ reliance on Hannan v. Watt (1986), 147 Ill. App. 3d 456, 497 N.E.2d 1307, for the proposition that Illinois does not apply an irrebuttable presumption is not warranted. The Hannan court decided there was no substantial relationship in that case, and, thus, the question of an irrebuttable presumption never became an issue. Plaintiffs’ assertion of the need for an affirmative showing of adverse effect by the movant for disqualification is erroneously based on language in Hannan that indicates that the movant needs to show how the prior and pending matters are related. This language goes to the substantial relationship factor and no further.

Plaintiffs also cite a number of Federal cases to support their contention that the presumption that confidences were disclosed is rebuttable. (La Salle National Bank v. County of Lake (7th Cir. 1983), 703 F.2d 252; Freeman v. Chicago Musical Instrument Co. (7th Cir. 1982), 689 F.2d 715; Novo Terapeutisk Laboratorium A/S v. Baxter Travenol Laboratories, Inc. (7th Cir. 1979), 607 F.2d 186.) These cases, however, as well as an Illinois case cited by plaintiffs, Index Futures Group, Inc. v. Street (1987), 163 Ill. App. 3d 654, 516 N.E.2d 890, involve, in pertinent part, factual situations where an attorney’s current adversary was represented by the attorney’s former law firm at a time when the attorney was employed there, but the attorney himself did not work on the client’s case. The presumption in those cases, that members of a law firm share their clients’ confidences with one another, was determined to be rebuttable. That presumption, however, is not relevant in the present case, where the attorney was actually the one involved in the discussions with the defendant.

Plaintiffs’ final argument is that publication by a township official of allegedly confidential information revealed to Morrison precludes the township’s motion to disqualify. Defendant asserts that this issue was not raised in the trial court and should be considered waived. Plaintiffs do not dispute this claim in their reply brief. The only citation plaintiffs make to the record is to certain newspaper articles which were appended to Morrison’s affidavit. Plaintiffs do not indicate where the trial court considered this matter or, for that matter, that there was any trial court error in regard to this issue. Absent a showing by plaintiffs that the matter was raised in the trial court, we consider it waived and will not consider it for the first time on review. Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500-01, 475 N.E.2d 872.

Turning now to plaintiffs’ contention that the Act is unconstitutional in a number of respects, we note that the Act was amended in July 1988. The amendment amounted to a substantial rewriting of the Act and suggests that the constitutional issues raised by plaintiffs may be moot. However, at oral argument plaintiffs observed that the township’s open-space program, including land acquisition through condemnation, has been implemented pursuant to the Act as it stood prior to amendment. This observation is borne out by disputes which have arisen from implementation of the program and have come before this court for resolution. (See Town of Libertyville v. Bank of Waukegan (1987), 152 Ill. App. 3d 1066, 504 N.E.2d 1305; Town of Libertyville v. First National Bank (1988), 178 Ill. App. 3d 591, 533 N.E.2d 54.) Therefore, we will consider plaintiffs’ constitutional issues.

Legislative enactments are presumed to be constitutional, and all reasonable doubts are to be resolved in favor of upholding challenged legislation. (North Shore Post No. 21 of the American Legion v. Korzen (1967), 38 Ill. 2d 231, 233, 230 N.E.2d 833; Spinelli v. Immanuel Evangelical Lutheran Congregation, Inc. (1986), 144 Ill. App. 3d 325, 331, 494 N.E.2d 196, 201.) It is this principle which guides our constitutional inquiry.

Plaintiffs first challenge the referendum question regarding creation of the open-space program. The form of the question was mandated by statute as follows:

“Shall the Town of [Libertyville] enter upon an open space program, and shall the Board of Town Trustees have the power to acquire open land by purchase, condemnation or otherwise and the power to issue bonds for open space purposes in any amount not exceeding 5% of the valuation ..... of all taxable property in the township, and to levy a tax to pay the interest and principal on such bonds, all as provided by the ‘Township Open Space Act’?” (Ill. Rev. Stat. 1985, ch. 139, par. 323.)

Plaintiffs charge that this question is unconstitutionally vague and ambiguous because it did not adequately inform voters of the subject matter on which they were asked to vote. However, each phrase of the referendum question which has been singled out by plaintiffs was defined in the definition section of the Act, and the referendum question itself indicates that the township could act only pursuant to the Act. Hence, if the voter wished to know more about the referendum question, he could have examined the Act itself.

Plaintiffs object that reading the statute would not have been helpful to a voter since the definitions are not readily understandable. However, plaintiffs support this contention by taking phrases from the statutory definitions out of context and giving them the meaning they wish them to have or suggesting that they are unintelligible to the voter. Read in context, however, it can be seen that the phrases relate to the rest of the definition and are clarified at the same time they help clarify the language around them. Moreover, the definitions employ commonly known words and would not be difficult for the voter to understand. Finally, no referendum question could, or should, need to answer all the questions posed by plaintiffs. All the ballot need do is present the proposition in such a manner that the voter has a clear opportunity to express a choice regarding the question. (Hoogasian v. Regional Transportation Authority (1974), 58 Ill. 2d 117, 317 N.E.2d 534.) The question challenged here meets this test. Viewed against the rest of the statute, the referendum question appears able to withstand constitutional examination.

Plaintiffs next charge that the Act, in conjunction with another, completely separate, statutory provision allows the township to sell real property on a whim. This objection is misdirected. Plaintiffs here challenge the Act, but it does not authorize the sale of property on a whim or otherwise. Plaintiffs have not attacked section 4 — 2(2) of the Township Law of 1874 which does authorize such sales. Ill. Rev. Stat. 1985, eh. 139, par. 38(2).

Plaintiffs further argue that the Act does not require the township to establish any necessity for the land it wishes to acquire. This claim appears to have little basis. Section 4.02 of the Act clearly requires that consideration be given to the open space or conservation value of any real property a township acquires:

“In acquiring or accepting land or rights thereto, due consideration shall be given to its open space, outdoor recreation or other conservation values and no real property shall be acquired or accepted which, in the opinion of the board or the State Conservation Department, is of low value from the standpoint of its proposed use.” (Ill. Rev. Stat. 1985, ch. 139, par. 324.02.)

Moreover, the argument ignores the reality of eminent domain law which allows a challenge to condemnation proceedings on grounds that the taking is not necessary. See Lake County Forest Preserve District v. First National Bank (1987), 154 Ill. App. 3d 45, 506 N.E.2d 424.

Plaintiffs argue at length that the Act is unconstitutional because it permits a township to acquire what it calls “development rights” under the section of the statute which allows acquisition of less than a fee interest in real property. They claim that by attempting to acquire “development rights” the township is attempting to zone. Nowhere, however, do plaintiffs explain what “development rights” are, how they would effect a zoning result, or even where the phrase comes from. Apparently, plaintiffs are making an argument that the Act would be unconstitutional in its application if it were used to acquire “development rights.” This argument is entirely too speculative and vague to warrant further consideration.

To summarize, we do not find any of the challenges set forth by plaintiffs sufficient to hold the Act unconstitutional on its face. All reasonable doubts regarding the constitutionality of a statute are to be resolved in favor of the legislation. (North Shore Post No. 21, 38 Ill. 2d at 233; Spinelli, 144 Ill. App. 3d at 331.) It should be noted that the court has only addressed constitutional issues raised by the pleadings. It would be incorrect to conclude that this opinion has made an exhaustive review of the constitutionality of the entire Act. Accordingly, the orders of the circuit court of Lake Comity disqualifying plaintiffs’ attorney and dismissing plaintiffs’ suit are affirmed.

Affirmed.

DUNN and WOODWARD, JJ., concur.


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    GEORGE SZCZERBANIUK, Plaintiff-Appellant, v. MEMORIAL HOSPITAL FOR McHENRY COUNTY et al., Defendants-Appellees.
    Second District
    No. 2—88—0619
    Opinion filed March 10, 1989.

      Norman J. Lerum, of Carponelli, Krug & Lerum, of Chicago (Stephen P. Carponelli, of counsel), for appellant.
    James D. Fiffer, of Wildman, Harrold, Allen & Dixon, of Chicago (Brian W. Lewis, of counsel), for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, George Szczerbaniuk, M.D., appeals from orders of the circuit court of McHenry County dismissing count II of his complaint and granting summary judgment on count I in favor of defendants, Memorial Hospital for McHenry County (Memorial) and Philip Dionne.

The following issues are raised on appeal: (1) whether section 10.2 of the Hospital Licensing Act (111. Rev. Stat. 1987, ch. IllV2, par. 151.2) precludes an action for civil damages against defendants; (2) whether defendants were precluded by the doctrine of judicial estop-pel from asserting section 10.2 as a defense; and (3) whether the circuit court erred in dismissing count II of plaintiff’s complaint, alleging breach of Memorial’s bylaws.

The pleadings and excerpts of deposition testimony included in the record on appeal establish the following pertinent facts. Plaintiff is a physician licensed to practice in Illinois. Memorial is a municipal hospital corporation organized and licensed under Illinois law. On December 1, 1986, plaintiff and Memorial executed a written contract entitled “Radiology Service Agreement.” This three-year agreement provided, in pertinent part, that plaintiff, functioning as an independent contractor in the practice of radiology, would discharge the duties of radiology service director at Memorial. According to the agreement, Memorial would furnish and maintain space, equipment, supplies, and staffing necessary to the operation of the radiology service. The agreement further provided that plaintiff was to be the exclusive provider of radiology services to Memorial. A termination clause provided that upon good cause shown and upon consultation with the executive committee of the board of directors of the hospital, either party shall be entitled to cancel the agreement upon 180 days’ written notice to the other party. Further, this clause provided that “[mjembership on the Medical Staff of the Hospital, in the event of the termination of this Agreement, shall be terminated.”

Memorial has enacted bylaws which, as stated therein, form the basis of the medical staff’s accountability to the board of directors for medical care of patients in the hospital and the conduct of its organization. The bylaws of the medical staff of Memorial define the term “medical staff” as “all medical practitioners and duly licensed dentists who are privileged to attend patients in the hospital.” The general procedures for discipline of staff members are outlined in article III, paragraph 7, of the bylaws, which provides that a staff member who is the subject of a complaint shall be notified in writing of the complaint and shall be entitled to hearings before a joint session of the credentials committee and executive committee of the medical staff and, if further action is necessary, before the full medical staff. The bylaws further provide that the medical staff shall forward a recommendation to the executive committee of the board of directors and that the staff member shall be entitled to appear before the executive committee, which shall thereafter recommend that the board of directors accept the recommendation of the medical staff or refer the matter back to the medical staff for further consideration.

Article HI, paragraph 3B, provides that “final authority on appointments, reappointments, suspension or termination of appointments shall rest exclusively with the Board of Directors.” Article III, paragraph 5C, provides that “[t]he Executive Committee or Credentials Committee of the Board of Directors, or the Executive Director of the hospital, may initiate an inquiry with respect to the category, service or privileges of any member of the medical staff.”

Following an investigation by defendant, Philip Dionne, chief executive officer of Memorial, of allegations of sexual harassment made by certain employees against plaintiff, Dionne informed plaintiff on August 21, 1987, that the radiology service agreement was terminated. Excerpts of deposition testimony of Mr. Baringer, a member of the executive committee of the board of directors, indicate that the executive committee may have informally authorized Dionne to respond to the charges against plaintiff as he saw fit and that the executive committee concurred in the decision to discharge plaintiff. The complaints were not referred at any time to any of the committees of the medical staff.

On September 3, 1987, plaintiff filed suit against defendants and Alfonso de la Morena. De la Morena was later voluntarily dismissed from the case. Count I of plaintiff’s complaint alleged breach of contract and count II alleged breach of Memorial’s bylaws. Both counts sought injunctive relief and damages. Defendants successfully moved to dismiss all claims for equitable relief and to dismiss count II of plaintiff’s complaint, which alleged breach of bylaws. Thereafter, defendants successfully moved for summary judgment on the breach of contract count, arguing that section 10.2 of the Hospital Licensing Act precluded an action for civil damages against them.

Plaintiff first contends that the circuit court erred in granting summary judgment to defendants on his breach of contract count. Plaintiff advances several arguments in support of the proposition that section 10.2 does not confer immunity upon defendants. Plaintiff contends that the process leading to his termination, because violative of due process, vitiates the immunity provided under section 10;2, that section 10.2 cannot be applied to defeat what he characterizes as a “vested right” to 180 days’ written notice prior to termination pursuant to his contract with Memorial, and that staffing decisions based on allegations of sexual harassment of employees are not related to protecting patient care and are not within the purview of section 10.2. Plaintiff also argues that section 10.2 only confers immunity from liability arising from the acts of certain types of protected committees and that no such committee was involved in the termination of his contract. We believe this last contention is dispositive, and, hence, we need not address the balance of his arguments.

Section 10.2 of the Hospital Licensing Act currently provides:

“Sec. 10.2. Because the candid and conscientious evaluation of clinical practices is essential to the provision of adequate hospital care, it is the policy of this State to encourage peer review by health care providers. Therefore, no hospital and no individual who is a member, agent or employee of a hospital, hospital medical staff, hospital administrative staff, or hospital governing board shall be liable for civil damages as a result of the acts, omissions, decisions, or any other conduct of a medical utilization committee, medical review committee, patient care audit committee, medical care evaluation committee, quality review committee, credential committee, peer review committee, or any other committee whose purpose, directly or indirectly, is internal quality control or medical study to reduce morbidity or mortality, or for improving patient care within a hospital, or the improving or benefiting of patient care and treatment, whether within a hospital or not, or for the purpose of professional discipline. Nothing in this Section shall relieve any individual or hospital from liability arising from treatment of a patient.” (Ill. Rev. Stat. 1987, ch. 1111/2 par. 151.2.)

Although the first sentence of this section, which states the policy of the provision, was enacted after plaintiff’s cause of action arose, it is an appropriate source for determining the original legislative intent of the statute. (See People v. Badoud (1988), 122 Ill. 2d 50, 56, 521 N.E.2d 884.) Further, in construing a statute, a court is to ascertain and to give effect to the legislature’s intent. (Gill v. Miller (1983), 94 Ill. 2d 52, 56, 445 N.E.2d 330.) In ascertaining the legislature’s intent, we should consider the statute in its entirety, noting the subject it addresses and the legislature’s apparent objective in enacting it. Gill, 94 Ill. 2d at 56, 445 N.E.2d at 333.

Plaintiff maintains that the termination of his privileges was not the result of any action by any committee of a type specified in section 10.2, but rather was the result of unilateral action by hospital administrator Philip Dionne. Defendants respond that involvement of the executive committee of Memorial’s board of directors satisfies the requirement of committee action and falls within the language of section 10.2 of “any other committee whose purpose, directly or indirectly” is for “professional discipline.” Excerpts of the depositions reveal that the executive committee of the board informally delegated authority to Dionne to take whatever actions he deemed appropriate with respect to the allegations against plaintiff and that the executive committee informally ratified Dionne’s decision to terminate the agreement with plaintiff and plaintiff’s hospital privileges. The executive committee was, however, never apprised of the specific allegations against plaintiff, and plaintiff never appeared before the executive committee. Under these circumstances, it is difficult to characterize the termination of plaintiff’s privileges as the result of an act, omission, decision, or other conduct of the executive committee. Rather, we are inclined to agree with plaintiff that, essentially, only unilateral action by an individual administrator was involved. Insofar as section 10.2 clearly contemplates action by committees, we are hesitant to apply it to immunize conduct of an individual acting only pursuant to an informal delegation of authority by an uninformed committee.

Even if the purported termination of plaintiff’s contract and the termination of his privileges are properly characterized as resulting from an act of the executive committee of the board of directors, section 10.2 would not provide immunity in the instant case because the executive committee was not acting as one of the types of committees specified in the statute.

Section 10.2 is applicable to certain specifically designated types of committees, including, among others, peer review committees, credential committees and medical utilization committees. Clearly no such committee participated in the decision with respect to plaintiff. Section 10.2 is also applicable to “any other committee whose purpose, directly or indirectly, is internal quality control or medical study to reduce morbidity or mortality, or for improving patient care within a hospital, or the improving or benefiting of patient care and treatment, whether within a hospital or not, or for the purpose of professional discipline.” (111. Rev. Stat. 1987, ch. IIIV2, par. 151.2.) Defendants specifically note its applicability to committees which deal, directly or indirectly, with professional discipline and contend that the executive committee’s role in the disciplinary process places it within the ambit of section 10.2. It is true that under Memorial’s bylaws, the full board of directors has final authority with respect to disciplinary action against staff members and has the power to initiate inquiries concerning staff conduct and refer these matters to the medical staff. While the board of directors plays a role in the professional discipline process, the legislative purpose underlying section 10.2 does not support its application to the disciplinary action taken here solely by the executive committee of the board of directors of the hospital without some act or decision of peer review by health care providers.

The legislative objective of section 10.2 is “ ‘to foster effective self-policing by members of the medical profession in matters unique to that profession and to thereby promote the legitimate State interest in improving the quality of health care in Illinois.’ ” (Knapp v. Palos Community Hospital (1988), 176 Ill. App. 3d 1012, 1024, 531 N.E.2d 989, quoting Rodriquez-Erdman v. Ravenswood Hospital Medical Center (1987), 163 Ill. App. 3d 464, 470, 516 N.E.2d 731; see also Barrows v. Northwestern Memorial Hospital (1988), 123 v. 2d 49, 58, 525 N.E.2d 50.) The stated purpose of section 10.2 is “to encourage peer review by health care providers.” (Ill. Rev. Stat. 1987, ch. 1111/2, par. 151.2.) Here, the decision by Memorial’s executive committee of its board of directors authorizing Dionne to terminate plaintiff does not come within the immunity granted by section 10.2 as it was not pursuant to any evaluation process of peer review by health care providers. There is nothing in the pleadings or excerpts of the depositions which shows that any peer review process was undertaken which would serve the policy of peer review underlying the purpose of the immunity provided in section 10.2

Summary judgment is proper only when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) Because section 10.2 does not grant immunity to defendants under the facts of this case, defendants were not entitled to judgment as a matter of law, and summary judgment in their favor is reversed. As the immunity from liability for civil damages under section 10.2 was the only basis urged below and on appeal, we have no occasion to decide whether civil damages are otherwise recoverable in connection with the termination of plaintiff-physician’s contract and medical staff privileges with Memorial.

As we have decided that section 10.2 is inapplicable in the instant case, it is unnecessary to examine plaintiff’s contention that defendants were judicially estopped from raising section 10.2 as a defense.

Plaintiff next contends that the circuit court erred in dismissing count II of his complaint, which alleged that the termination of his medical staff privileges without adherence to the bylaw provisions of Memorial was a breach of the bylaws. He argues that the bylaws form a contract between him and Memorial. The circuit court dismissed this count apparently on the basis that the service agreement, not the bylaws, controlled inasmuch as the agreement contained the following provision relating to medical staff privileges: “Membership on the Medical Staff of the Hospital, in the event of the termination of this Agreement, shall be terminated.”

Plaintiff maintains, however, that the hospital bylaws form part of the contract between the hospital and its staff, citing, in particular, Head v. Lutheran General Hospital (1987), 163 Ill. App. 3d 682, 516 N.E.2d 921, and Fahey v. Holy Family Hospital (1975), 32 Ill. App. 3d 537, 336 N.E.2d 309, and that the termination provision in the agreement must be read to provide that termination of medical staff privileges be in accordance with the bylaws. Defendants respond that the termination provision in the agreement is unambiguous and was bargained for in exchange for plaintiff’s exclusive right to provide radiological services at Memorial. Accordingly, defendants contend that the effect of the agreement was to give up any rights which may be contained in the bylaws and for the parties to be mutually bound by the agreement covering the obligations of the parties.

The agreement is a six-page contract signed by plaintiff and Dionne, as Memorial’s chief executive officer, and contains 12 separate clauses. Pertinent hereto, the agreement begins by stating that the parties enter the service agreement “to provide a full statement of their respective covenants and obligations in connection with the operation of the Radiology Service in the Hospital during the term hereof.” Further, the agreement provides that plaintiff is acting as an independent contractor in the performance of these duties under the contract. The agreement makes plaintiff the exclusive provider of radiology services at Memorial, setting forth his responsibilities to the hospital and the hospital’s obligation to provide space, equipment, supplies, and staffing necessary for the radiology department. The agreement also contains a clause whereby problems relating to the administration of the radiology service which cannot be resolved between plaintiff and the hospital administration be submitted to the executive committee of the board of directors and, ultimately, be resolved by the board of directors, whose decision is binding. The clause further provides that problems relating to plaintiff’s clinical responsibilities will be referred to the executive committee of the medical staff for consultation prior to action taken by the board of directors. Termination of the three-year agreement by either party, upon good cause shown, may be made upon 180 days’ written notice.

The meaning of a written contract is ordinarily a question of law, and the intention of the parties must be ascertained by the language utilized in the contract itself, not by the construction placed upon it by the parties. (Lenzi v. Morkin (1984), 103 Ill. 2d 290, 293, 469 N.E.2d 178.) A contract’s meaning must be determined from the words or language used, and a court cannot construe the contract contrary to the plain and obvious meaning of the language. (Johnstowne Centre Partnership v. Chin (1983), 99 Ill. 2d 284, 287, 458 N.E.2d 480.) It is presumed that the terms and provisions of a contract are purposefully inserted and that the language was not employed idly. State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App. 3d 1062, 1065, 419 N.E.2d 601.

Here, an express provision in the agreement provides that membership on the medical staff of the hospital shall terminate upon termination of the agreement. There is no mention in the agreement of the hospital bylaws being applicable to plaintiff. In fact, the agreement recites that it is a full statement of the parties’ covenants and obligations. Moreover, problems relating to radiology service and clinical responsibilities are to be resolved by procedures prescribed in the agreement, which is inconsistent with provisions under the bylaws. The cases relied on by plaintiff, holding that the bylaws form part of the contract between the hospital and its staff, are inapposite as there is no indication in those cases that there also was a contract between the parties which provided for termination of medical privileges. In this case, as contrasted with cases where only medical privileges at a hospital are involved, there is a contract by which plaintiff is to be an independent contractor providing all radiology services to Memorial. Accordingly, count II does not state a cause of action for a breach of the bylaws as the bylaws do not form a part of the agreement between the parties.

Affirmed in part, reversed and remanded in part.

NASH and DUNN, JJ., concur.