author: JUSTICE INGLIS

text:
      In re RUEBEN STIARWALT et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Jeanne Stiarwalt, Respondent-Appellant).
    Second District
    No. 2—88—1141
    Opinion filed October 24, 1989.

      Harlovic & Perko, of West Dundee (Phyllis J. Perko, of counsel), for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, and Eleesha Pastor O’Neill, of counsel), for the People.
    Patricia Reid Lindner, of Aurora, guardian ad litem.

   JUSTICE INGLIS

delivered the opinion of the court:

Respondent, Jeanne Stiarwalt, mother of Rueben (a/k/a Rubin), Julio, and Rachel (a/k/a Rachael) Stiarwalt, appeals from an order of the circuit court of Kane County terminating her parental rights and authorizing the guardianship administrator of the Illinois Department of Children and Family Service (DCFS) to consent to the minors’ adoption. Respondent contends that (1) the trial court proceedings did not comply with the requirements of the Indian Child Welfare Act of 1978 (Act) (25 U.S.C. §1901 et seq. (1982)); and (2) the trial court’s finding of parental unfitness was not supported by clear and convincing evidence. We affirm.

On June 23, 1983, the State filed a petition for an adjudication of wardship based on the neglect of the three minor children, Rueben (bom November 24, 1975), Julio (born April 30, 1979), and Rachel (born October 7, 1981). On August 9, 1983, the court granted the petition. However, on July 17, 1984, the court vacated the adjudication and set the cause for a hearing. On September 10, 1984, an adjudication hearing was held at which respondent entered an admission to the contents of the State’s petition based on the fact that she was unable to provide the necessary care and support of the children. On the same date, the court entered an order placing six conditions upon respondent for a return of her children. These six conditions were that respondent would obtain adequate housing, maintain regular contact with DCFS, continue scheduled visitation with the children, be gainfully employed, attend counseling, and maintain a stable home environment for a three-month period.

On October 22, 1985, the State filed a petition to terminate respondent’s parental rights with respect to the three minor children. The petition alleged that respondent was unfit due to her failure to make reasonable efforts and progress to correct the conditions which were the basis for the removal of the minor children from her custody. On September 25, 1986, after two fitness hearings, the court entered an order finding that the State proved by clear and convincing evidence that respondent failed to make reasonable progress toward the return of her children. The court then ordered a hearing to determine whether the termination of respondent’s parental rights would be in the best interests of the minor children.

On January 5, 1988, respondent filed a motion to invalidate the court proceedings, including the adjudicatory and unfitness hearings and findings, based on the allegation that the court lacked jurisdiction in this case. Respondent argued that she was a member of an Indian tribe, that the minors were Indian children, and, as such, that the Act applied in this case. On March 30, 1988, a hearing was held on respondent’s motion. At the conclusion of the hearing, the court took the matter under advisement. On July 19, 1988, the court entered an order denying respondent’s motion to invalidate, finding that the Act was inapplicable in the case at bar.

On October 31, 1988, an evidentiary hearing was conducted to determine what placement would be in the best interests of the minor children. The hearing concluded on November 1, 1988, after which the court ordered that the termination of respondent’s parental rights would be in the best interests of the children. The court also appointed a guardian to consent to the minors’ adoption. Respondent filed a timely notice of appeal.

On appeal, respondent first contends that the trial court proceedings did not comply with the requirements of the Act. Specifically, she contends that there is a possibility that the Canadian tribe of which she is a member is affiliated with some Sioux Indian tribe within the United States and recognized by the Department of the Interior (Department). She further contends that the State had an obligation to contact respondent’s Indian tribe to determine whether the tribe claims some affiliation with a tribe recognized by the United States government.

During the hearings on the termination of respondent’s parental rights, respondent filed a motion to invalidate the proceedings, contending that the State did not comply with the provisions of the Act. An evidentiary hearing was held on respondent’s motion. At the hearing, Nancy Zimmerman, a DCFS caseworker, testified that DCFS was aware of respondent’s Indian heritage and attempted to determine if the Act applied to respondent and her children. Zimmerman stated that a letter was written to the Department requesting advice on the applicability of the Act. In the letter, DCFS informed the Department that respondent was born in Canada and “appears to be part of a Sioux Indian Tribe.” DCFS also enclosed a copy of respondent’s birth certificate with the letter. The Department responded by stating:

“From the information which you provided, it appears that these [Stiarwalt] children possess only Indian blood from Tribes in Canada. This Act (PL — 95—608) applies only to children of Indians who are members of an Indian Tribe recognized by the United States Government and who are themselves eligible for membership. It appears that these children do not meet this requirement of the Act. Therefore, the Act would not apply to these children.”

After receiving the letter, DCFS concluded that it would not be necessary to comply with the procedural requirements of the Act because the Act would not apply in this case.

Respondent also testified at the hearing. She stated that she was bom in 1960 on the Rolling River Band Indian Reservation in Canada. She was placed in a foster home at age seven and was adopted at age 10 by a non-Indian family in Illinois. She stated that she has not lived on an Indian reservation since she was adopted. Respondent also introduced a letter from the Rolling River Band into evidence at the hearing. The letter was written to respondent’s attorney and stated:

“[Y]our client [respondent] and her children are entitled to Treaty Status and Canadian Citizenship and should be treated as such.”

The trial court determined that the Act was not applicable to the case at bar, stating:

“The evidence introduced at the evidentiary [sic] hearing establishes clearly that the Mother is a member of a Canadian Indian Tribe. The evidence established that Leona Angella McKay, which was the Mother’s birth name, was a member of the Rolling River Band of Canadian Indians.
* * *
The Rolling River Band is not recognized by the Secretary of the Bureau of Indian Affairs of the Department of the Interior. The Act as it was written and in existence at the time of the adjudications as to the Stiarwalt Minors did not include Canadian Indians. It is the finding of this Court, therefore, that the Act is not applicable to these proceedings and the Motion To Invalidate is denied.”

The Act was adopted to respond to a crisis occurring in Indian tribes in which large numbers of Indian children were being separated from their families and placed in non-Indian homes. (Missis sippi Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 32, 104 L. Ed. 2d 29, 36, 109 S. Ct. 1597, 1600.) As a result, the children were being deprived of their cultural heritage, and the tribes’ ability to function as an autonomous community was being severely threatened. (490 U.S. at 35-36, 104 L. Ed. 2d at 37-38, 109 S. Ct. at 1601.) The Act incorporated these considerations, finding:

“(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;
(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” 25 U.S.C. §§1901(3) through 1901(5) (1982).

The Act sets forth minimum Federal standards for the removal of an Indian child from his or her family. (25 U.S.C. §1902 (1982); In re A.E. (Colo. App. 1987), 749 P.2d 450, 451.) However, the Act does not apply unless it is established that the child is an “Indian child.” (In re Appeal in Maricopa County Juvenile Action No. A—25525 (1983), 136 Ariz. 528, 531, 667 P.2d 228, 231.) The Act defines “Indian child” as:

“[A]ny unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” (25 U.S.C. §1903(4) (1982).)

The Act goes on to define “Indian tribe” as:

“[A]ny Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians, including any Alaska Native village as defined in section 1602(c) of title 43.” (25 U.S.C. §1903(8) (1982).)

Thus, the Act does not apply merely because the children are “Indian,” but applies only where there is proof that the children are members, or are eligible for membership, in an Indian tribe, as defined by the Act. In re Smith (1987), 46 Wash. App. 647, 650, 731 P.2d 1149,1152-53.

In the present case, the State introduced evidence indicating that the children were not “Indian” within the context of the Act. Respondent argues that the State’s evidence did not negate the possibility that the Canadian tribe in which she is a member is affiliated with some tribe which is recognized under the Act. However, the burden of proof is on respondent to prove that the Indian tribe in which she claims membership is recognized as eligible for services to Indians by the Department. (In re Angus (1982), 60 Or. App. 546, 549, 655 P.2d 208, 210, cert. denied (1983), 464 U.S. 830, 78 L. Ed. 2d 109, 104 S. Ct. 107; In re K.A.B.E. (S.D. 1982), 325 N.W.2d 840, 843.) Respondent failed to offer any evidence that the Canadian tribe is affiliated with any tribe recognized under the Act.

Respondent cites In re Junious M. (1983), 144 Cal. App. 3d 786, 193 Cal. Rptr. 40, to support her position that the Act applies in the case at bar. In Junious M., the trial court determined that the minor child was a member of the Nooksack Tribe, but that the Act would not apply because the minor was not an “Indian child.” (144 Cal. App. 3d at 792, 193 Cal. Rptr. at 43.) Apparently, the trial court based this ruling on the allegation that the Nooksack tribe was Canadian. However, evidence was also adduced at trial indicating that the tribe was also located within the United States and was recognized by the Department of the Interior. (144 Cal. App. 3d at 792, 193 Cal. Rptr. at 43.) The appellate court reversed the trial court, holding that the trial court erred when it failed to notify the Nooksack Tribe concerning the custody proceedings. (144 Cal. App. 3d at 794, 193 Cal. Rptr. at 44.) The court noted that guidelines established by the Bureau of Indian Affairs (Bureau) stated that “[a]bsent a contrary determination by the tribe that is alleged to be the Indian child’s tribe, a determination by the Bureau of Indian Affairs that a child is or is not an Indian child is conclusive.” 144 Cal. App. 3d at 794, 193 Cal. Rptr. at 44, citing 44 Fed. Reg. 67584-67586 (Nov. 26, 1979).

We believe that the Junious M. decision does not support respondent’s position in the case at bar. In Junious M., the Bureau informed the parties that the Nooksack Tribe was officially recognized by the United States government. Indeed, a review of the Federal register indicates that the Nooksack Indian Tribe of Washington is listed as a federally recognized tribe. (51 Fed. Reg. 25116 (July 10, 1986).) However, in the case at bar, the Bureau determined that respondent’s tribe, the Rolling River Band, is not a Federally recognized tribe. The bureau made this determination after reviewing the Federal register and not finding the Rolling River Band listed as eligible for Federal recognition. We believe that the Bureau’s unrefuted determination concerning respondent’s Indian status in this case is conclusive. (See In re Tucker (1985), 76 Or. App. 673, 678-79 n.3, 710 P.2d 793, 796 n.3; Junious M., 144 Cal. App. 3d at 794, 193 Cal. Rptr. at 44.) Thus, we agree with the trial court’s determination that the Act does not apply in the case at bar.

Respondent next contends that the trial court’s finding of parental unfitness was not supported by clear and convincing evidence. Respondent argues that the six conditions set out for a return of her children were either not reasonably related to the question of fitness, or that the evidence did not support the court’s conclusion that there was not reasonable progress toward the fulfillment of the conditions. We disagree.

It is well established that a finding of parental unfitness must be supported by clear and convincing evidence. (In re Paul (1984), 101 Ill. 2d 345, 352; In re Henry (1988), 175 Ill. App. 3d 778, 790.) The trial court’s findings must be given great deference, and its decision should not be reversed on appeal unless it is contrary to the manifest weight of the evidence. Henry, 175 Ill. App. 3d at 790; In re R.G. (1988), 165 Ill. App. 3d 112, 133-34.

In the instant case, the minor children were taken into temporary custody in June 1983 after respondent made a telephone call to DCFS. Respondent told DCFS that she was an alcoholic and a drug addict and that she did not have a place for her and the children to live. The children were placed in three different foster homes. On July 15, 1983, respondent telephoned her DCFS caseworker, Betsy Nemeth, and told Nemeth that she was moving to Texas. Nemeth told respondent that she should schedule an appointment with DCFS before she left Illinois so that a case plan could be worked out and to allow her to visit with her children. Respondent scheduled an appointment for later in the afternoon on the same day, and a six-month client-service plan (plan) was developed. The first plan set up goals for respondent to achieve, including obtaining drug counseling and abstaining from alcohol and drug usage, finding suitable housing and maintaining stable employment.

On July 20, 1983, respondent had visitation with her children and brought a box of their clothing. Nemeth testified that respondent did not separate the clothing, even though the children were living in three different foster homes. Nemeth further stated that “the clothes were in terrible condition, that they were — most of them didn’t even fit the kids, that they were dirty and that they had a terrible odor to them and the boxes had cockroaches that were in them and I believe Julio — some of the clothes of the children’s were caked with like feces and they were just very dirty.”

Shortly thereafter, respondent was arrested, charged with theft, and placed in the Kane County jail (jail). Nemeth testified that she had regular contacts with respondent in August and September 1983 while respondent was at the jail. In October 1983, respondent was sentenced to 18 months’ imprisonment and sent to the Dwight Correctional Center (Dwight).

On December 9, 1983, a second plan was set up for respondent and continued the goals of the previous plan due to respondent’s incarceration. On April 25, 1984, respondent was released from Dwight. On May 11, 1984, respondent visited with the children and, later in the month, moved to Texas. It was respondent’s intention to move the children to Texas after she had established suitable housing and employment.

On June 15, 1984, a third' plan was developed for respondent. In July 1984, respondent returned to Illinois for a court hearing and to visit with the children. Respondent stayed in Illinois after the hearing and did not return to Texas. Respondent missed several scheduled visits with the children in August 1984 because she was late for the appointments. She also failed to show up for one visit in September 1984 and did not call Nemeth to inform DCFS that she would be unable to make the appointment. Nemeth further testified that respondent did not provide any verification concerning compliance with the counseling, employment or housing goals set for her in the plans.

Debra Mourning, a DCFS caseworker, testified that she took over respondent’s case after Nemeth left DCFS. Mourning stated that a fourth plan was developed for respondent on December 20, 1984. This plan included a two-hour-per-week visitation schedule for respondent to be with her children. Respondent was to provide her children with a nutritional meal and was to bring toys and books for them during the visitation periods. The plan also included a goal of attending drug and alcohol counseling and obtaining adequate housing for her and the children.

On February 6, 1985, Mourning had an in-person contact with respondent at the DCFS office. Respondent stated that she was not attending counseling and was “still drinking, but not getting drunk.” Respondent told Mourning that she was not attending counseling because she had too many other things to do, including baby-sitting and searching for employment. In addition, respondent stated that she was unemployed.

Respondent moved several times during January to March 1985. On April 26, 1985, respondent informed DCFS that she was pregnant. On May 10, 1985, respondent was confronted with reports that she was drinking “heavily.” Respondent did not reply but instead only cried. On June 12, 1985, a fifth plan was set up for respondent. On August 26, 1985, Mourning told respondent that no progress was being made on the plans and that a petition to terminate her parental rights would be filed. On September 23, 1985, respondent gave birth to her fourth child.

Ruth Burton, a substance abuse counselor at the Passage Program for Women (Passage), testified that she was respondent’s counselor. Burton stated that respondent’s attendance at the Passage counseling sessions was very erratic and that “she came in on crisis, when things were bad. She would come for a while and then not come.” Burton also stated that respondent did not have “a real willingness to work on any issues.”

Respondent testified at the hearing that she does not consider herself to have a drug or alcohol problem anymore and has “been clean” ever since her release from Dwight. However, she admitted that no independent drug or alcohol counselor had told her that she no longer had a drug or alcohol problem. She also stated that she has experienced problems with Frank Rodriguez, the father of Julio, which resulted in her having to spend two weeks in a woman’s crisis center. In addition, respondent stated that she was unable to maintain stable employment due to a lack of transportation to get to work, and because she experienced various problems with her pregnancy.

At the conclusion of the hearing, the court determined that respondent did make a reasonable effort, but failed to make reasonable progress, toward the return of her minor children. (See Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)(m).) The court then ordered respondent’s parental rights terminated. At a later hearing, the court determined that it would be in the best interests of the minor children to terminate respondent’s parental rights.

The trial court made these findings after determining that respondent’s one-bedroom apartment was not suitable housing for her and her four minor children. The court also determined that respondent was not gainfully employed at any particular time “so as to provide for the basic needs of the children.” In addition, the court stated that respondent never regularly attended drug and alcohol counseling, thus not giving her counselor an opportunity to determine whether she needed to attend counseling at all. As a final point, the court stated that respondent did not maintain a stable home or work environment for a three-month period, as required under the last condition of the order entered at the adjudication hearing.

Respondent argues that she did make reasonable progress toward satisfying the six conditions. Whether a parent’s progress toward the return of the children was reasonable involves an objective determination based upon the amount of progress measured from the conditions existing at the time custody was taken from the parent. (In re Allen (1988), 172 Ill. App. 3d 950, 956; In re Doolan (1981), 101 Ill. App. 3d 322, 324.) At a minimum, reasonable progress requires measurable or demonstrable movement toward the goal of reunification. In re Henry, 175 Ill. App. 3d at 791; In re Allen, 172 Ill. App. 3d at 956.

Respondent contends that In re Perez (1988), 173 Ill. App. 3d 922, supports her position that she did make reasonable progress toward the return of her children. In In re Perez, the trial court terminated the mother’s parental rights because she failed to make reasonable progress with respect to the conditions imposed upon her at the dispositional hearing. This court reversed the trial court, holding that the absence of evidence as to the mother’s status at the time of the removal of her children made it impossible for the court to determine whether the mother had in fact made reasonable progress toward the return of her children. In re Perez, 173 Ill. App. 3d at 936.

We agree with the In re Perez decision and believe that it is essential for the trial court to consider the situation triggering the minor children’s initial removal as a benchmark for measuring reasonable progress. (In re Perez, 173 Ill. App. 3d at 936; see also In re Bennett (1980), 80 Ill. App. 3d 207, 212; In re Austin (1978), 61 Ill. App. 3d 344, 350.) In the case at bar, respondent’s status at the time of the removal of her children was well documented. Respondent admitted that she was an alcoholic and a drug addict and did not have a place for her and her children to live at the time the children were removed from her custody. The court took these factors into consideration when it determined that respondent did not make reasonable progress with respect to her substance abuse counseling and inability to maintain stability with respect to housing and employment. Thus, we believe that the trial court could properly determine whether respondent made reasonable progress toward the return of her children, unlike the situation in In re Perez.

We agree with respondent that parental rights are fundamental and cannot be lightly terminated. (In re Paul, 101 Ill. 2d at 352-55.) However, DCFS provided respondent with five different client-service plans, two of which were after the court entered the adjudication of neglect order, in an attempt to allow respondent to regain custody of her children. Respondent received an “unsatisfactory” grade as to one or more of the conditions for each of the plans, including the two plans after the court order adjudicating neglect. Respondent never did regularly attend counseling and was apparently still consuming alcohol during the time she was directed to abstain from alcohol and drugs. In addition, respondent did not secure housing suitable for her and the children, even though this was one of the reasons why she originally relinquished custody of the children. While respondent may have made some slight progress during this time, the trial court’s finding that she failed to make reasonable progress toward the return of her children in the nearly 14 months since the order adjudicating neglect is not contrary to the manifest weight of the evidence. See In re A.C.B. (1987), 153 Ill. App. 3d 704, 708-09 (some progress may not be reasonable given the right of the children to not be left in limbo for an unreasonable amount of time).

For the above stated reasons, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

REINHARD and McLAREN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    LINDA JONES et al., Plaintiffs-Appellants, v. GEARY DODENDORF et al., Indiv. and together constituting the Electoral Board of the Board of Education of Palisades Community Consolidated School District No. 180 of Du Page and Cook Counties, et at., Defendants-Appellees.
    Second District
    No. 2—89—1020
    Opinion filed October 27, 1989.

      Peter M. Barron, of Northbrook, for appellants.
    Demling & Eckhardt, of Glen Ellyn (Thomas A. Eckhardt, of counsel), for appellees Geary Dodendorf, Richard Flaks, Clifford M. Carney, and Electoral Board of Education of Palisades Community Consolidated School District No. 180.
    James H. Wheelock, of Hinsdale, appellee pro se.

   JUSTICE INGLIS

delivered the opinion of the court:

The issue in this case is the right of plaintiffs, Linda Jones, Anthony Kramer, William Nash and James Valukas, to have their names printed on the ballot as candidates for School Board members of Palisades Community Consolidated School District No. 180. Defendant, electoral board (Board), ruled against petitioners, holding that the pages of plaintiffs’ nominating petitions were not numbered and, therefore, were invalid. The circuit court of Du Page County affirmed the order of the Board and held that the provisions of section 10 — 4 of the Election Code (Ill. Rev. Stat. 1987, ch. 46, par. 10 — 4) were mandatory. Because of the imminence of the election and the need for a prompt decision, this court allowed an expedited appeal.

Three issues are raised on appeal: (1) whether the provision of section 10 — 4 of the Election Code regarding page numbering is mandatory or directory; (2) whether there was substantial compliance by plaintiffs; and (3) whether plaintiffs’ constitutional rights were violated by removing their names from the ballot.

On appeal, the decision of the Board will not be reversed or set aside unless it is against the manifest weight of the evidence, that is, unless it is arbitrary and unsupported. Ill. Rev. Stat. 1987, ch. 46, par. 10 — 10.1; Huskey v. Municipal Officers Electoral Board (1987), 156 Ill. App. 3d 201, 204; Williams v. Butler (1976), 35 Ill. App. 3d 532, 538.

Section 10 — 4 provides in part:

“[The petition] sheets, before being presented to the *** electoral district or division of the State or municipality, as the case may be, shall be neatly fastened together in book form, by placing the sheets in a pile and fastening them together at one edge in a secure and suitable manner, and the sheets shall then be numbered consecutively.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 46, par. 10 — 4.

Plaintiffs contend that the provision of section 10 — 4 regarding page numbering is directory rather than mandatory. Plaintiffs argue that because it is directory, noncompliance with the provision does not justify invalidating their petitions.

In determining whether a provision is mandatory or directory, it is necessary to ascertain the intent of the legislature or political body which enacted the law. (Havens v. Miller (1981), 102 Ill. App. 3d 558, 565.) The first place to look for the intent of a statutory provision is in the language of the statute itself. Havens, 102 Ill. App. 3d at 565.

Section 10 — 4 of the Election Code provides that the result of noncompliance with the petition requirements is that “[n]o signature shall be valid or be counted in considering the validity or sufficiency of such petition unless the requirements of this Section are complied with.” (Ill. Rev. Stat. 1987, ch. 46, par. 10 — 4; Huskey, 156 Ill. App. 3d at 204.) When a statute specifies what result will ensue if its terms are not complied with, the statute is deemed mandatory. (Havens, 102 Ill. App. 3d at 566.) As such, we find that the requirements of section 10 — 4 are mandatory. (Huskey, 156 Ill. App. 3d at 204; Schumann v. Kumarich (1981), 102 Ill. App. 3d 454, 458; see also Bowe v. Chicago Electoral Board (1980), 79 Ill. 2d 469, 470.) Further, the provision in question provides that “the sheets shall then be numbered consecutively.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 46, par. 10 — 4.) Such language generally evidences the legislature’s mandatory intent. Simmons v. DuBose (1986), 142 Ill. App. 3d 1077, 1080.

Plaintiffs next argue that even if the numbering provision is mandatory, substantial compliance with the provisions of section 10— 4, as a whole, is sufficient, and technical violations of the statute do not justify invalidating nominating petitions. In support of their argument, plaintiffs cite Stevenson v. County Officers Electoral Board (1978), 58 Ill. App. 3d 24. In Stevenson, the court held that a candidate’s failure to number the pages of his 48-page nominating petition was a technical violation of the Election Code and, thus, the candidate was entitled to have his name on the ballot in spite of his non-conformance with the provision. Stevenson, 58 Ill. App. 3d at 26.

In reaching its holding, the court in Stevenson relied on Williams v. Butler (1976), 35 Ill. App. 3d 532. In Williams, the pages of the candidate’s petition were numbered 1 through 323; however, there was no page 191. The court held that “[njoncompliance with the provision in the failure to insert or number a page is a mere technicality and cannot invalidate a petition.” Williams, 35 Ill. App. 3d at 535.

Plaintiffs argue that their failure to number the pages of their 12-page petitions was similarly technical and did not justify the invalidation of their petitions. We disagree.

While substantial compliance with the provisions of the Election Code has been held to be sufficient (see, e.g., Panarese v. Hosty (1982), 104 Ill. App. 3d 627, 630), we do not believe that a candidate who completely ignores one of the statutory elements can be said to have “substantially complied” with it. We reject the court’s decision in Stevenson to the extent that it holds to the contrary. We believe that the rationale of the Stevenson court was faulty when it applied Williams v. Butler to the facts before it. The court in Williams held that “the failure to insert or number a page is a mere technicality.” (Emphasis added.) (Williams, 35 Ill. App. 3d at 535.) It seems obvious that the failure to number a page is far less significant than the failure to number any of the pages.

Having rejected the holding in Stevenson, plaintiffs’ argument that they have substantially complied with the provisions of section 10 — 4 can be easily dismissed. Plaintiffs contend that compliance with the section, as a whole, is sufficient. However, the cases cited by plaintiffs do not support their contention. In the applicable cited cases there was at least some type of compliance with the specific requirement at issue. (See, e.g., Ryan v. Landek (1987), 159 Ill. App. 3d 10; Panarese v. Hosty (1982), 104 Ill. App. 3d 627.) In the case at bar, there was simply no attempt made to comply with the numbering requirement.

Even if we were to accept plaintiffs’ argument that compliance in general is sufficient, it is not entirely clear that plaintiffs’ petitions would be acceptable. The record reveals that the plaintiffs’ petitions failed to strictly comply with the Election Code in several respects: (1) the pages were not numbered consecutively (Ill. Rev. Stat. 1987, ch. 46, par. 10 — 4); (2) the petitions were bound by paper clips, rather than in “book form” (Ill. Rev. Stat. 1987, ch. 46, par. 10 — 4); (3) three of the candidates failed to write in the word “Election” above their signatures (Ill. Rev. Stat. 1987, ch. 46, par. 10 — 5(3)); and (4) one of the candidates submitted a petition that contained the names of three people who signed and dated the petition after it was notarized (Ill. Rev. Stat. 1987, ch. 46, par. 10 — 4).

While the Board found that plaintiffs’ actions in (2) and (3) above were in substantial compliance with the Election Code, we mention them now only to indicate that plaintiffs’ failure to number the pages of their petitions was not their only deviation from the Code’s requirements.

Plaintiffs argue that so long as the purpose of the requirement is satisfied, substantial compliance must exist. Plaintiffs contend that the purpose of requiring candidates to number the pages of their petitions is “solely for convenience so that persons looking at a candidate’s nominating petitions [sic] may be able to identify specific pages or refer to information contained thereon by reference to a page number.” Plaintiffs claim that despite the lack of numbers, there are other ways to identify, and describe, the specific pages of each petition.

However, we believe there is an additional purpose for the numbering requirement, aside from aiding in identification. By having the papers bound and numbered, it prevents tampering, thereby preserving not only the integrity of the petitions submitted, but also the election process in general. (But see Williams, 35 Ill. App. 3d at 535.) The petitions submitted in the case at bar were not numbered in any form or manner. There would have been no way to effectively ascertain whether additional pages were later inserted or whether original pages were missing. Thus, not all of the purposes for the numbering requirement were satisfied.

In their final argument, plaintiffs contend that it is constitutionally impermissible to remove their names from the ballot for their failure to number the pages of their petitions.

Before a candidate can be denied a place on the ballot, the rights of both the candidate and the voters must be taken into consideration. (Huskey v. Municipal Officers Electoral Board (1987), 156 Ill. App. 3d 201, 205.) In addition, the interest of the State in regulating elections must be recognized. The crucial question is whether it is conceivable that removing these candidates from the ballot has a rational relationship to a legitimate governmental objective. Huskey, 156 Ill. App. 3d at 205; Havens v. Miller (1981), 102 Ill. App. 3d 558, 570.

Plaintiffs argue that there is no rational relationship between their removal from the ballot and the objective of the numbering requirement. We disagree.

As stated above, in addition to aiding in identification, we believe a legitimate objective of the numbering requirement is to prevent persons from tampering with the petitions. In addition, it is conceivable that the sanctions imposed for noncompliance with section 10 — 4 of the Election Code will further the State’s valid interest in protecting the integrity of the electoral process by helping to insure that candidates will strictly comply with the requirements of these election laws. (Havens, 102 Ill. App. 3d at 571.) Thus, we find that the sanction of removing these candidates from the ballot is rationally related to the legitimate interests of the State and, therefore, is constitutionally permissible.

For the above-stated reasons, we affirm the decision of the circuit court.

Affirmed.

UNVERZAGT, P.J., and WOODWARD, J., concur.


author: JUSTICE McLAREN

text:
    TIMOTHY J. TOWNE, Plaintiff-Appellant, v. THE TOWN OF LIBERTYVILLE et al., Defendants-Appellees (The Law Firm of Siemon, Larsen and Purdy, as Agent of the Town of Libertyville et al., et al., Defendants).
    Second District
    No. 2—89—0115
    Opinion filed November 2, 1989.
    Rehearing denied December 5, 1989.

      David L. Anders, of Hutchinson, Anders & Associates, P.C., of Tinley Park, for appellant.
    Dennis P. Ryan and Luis A. Berrones, both of Gardner, Carton & Douglas, of Libertyville, for appellees Town of Libertyville, F.T. Graham, Larry G. Alkire, Roger R. Hartman, and Carol Calabresa.
    D. Kendall Griffith, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for other appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

In December 1987, plaintiff, Timothy J. Towne, pursuant to sections 1983 and 1985(3) of the Civil Rights Act of 1871 (Civil Rights Act) (42 U.S.C.A. §§1983, 1985(3) (West 1981)), filed a complaint against the Town of Libertyville (township) and others, alleging that he was wrongfully deprived of his property without due process of law and without just compensation as guaranteed by the fourteenth amendment to the Federal Constitution (U.S. Const., amend. XIV).

The defendants filed a motion to dismiss pursuant to section 2— 615 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2— 615). The trial court ruled that plaintiffs could not state a cause of action and dismissed the complaint with prejudice in an order filed January 6, 1989. In the same order, the court denied plaintiff’s motion to amend his complaint. Plaintiff appeals, contending that his complaint was sufficient to state a section 1983 action; alternatively, plaintiff argues that it was error for the trial court to deny his motion to amend the complaint. We affirm.

The original controversy stems from the township’s institution of condemnation proceedings pursuant to the Township Open Space Act (Open Space Act) (Ill. Rev. Stat. 1987, ch. 139, par. 321 et seq.) against several parcels of land in which plaintiff had a legal or equitable interest. In December 1986, plaintiff agreed to sell certain parcels and to donate others to the township as part of an overall settlement of the case. The agreement shows that plaintiff was to be compensated $920,920. As part of the agreement, the township agreed to deliver at closing a release of the lis pendens recorded against a certain three-acre parcel and to withdraw its offer to purchase that parcel. The offer to acquire the parcel was withdrawn on December 24, 1986. According to the complaint, on September 16, 1987, the township subsequently reinstituted condemnation proceedings to acquire the three-acre parcel. The record is silent as to the disposition of that suit.

On December 24, 1987, plaintiff filed his complaint at law requesting injunctive relief, compensation, and punitive damages for violations of his constitutional rights because he was wrongfully deprived of his property. In count I, plaintiff alleged that defendants conspired to deprive him of the use of his property and just compensation therefor by instituting eminent domain proceedings against property that was exempt under the Open Space Act, presumably because it was either property of less than 50 acres in size or it was farmland. Count II is generally repetitive of count I and concludes that the initiation and continuation of the eminent domain proceedings constitutes an abuse of process because the subject property was exempt under the Open Space Act.

Section 2 — 615 of the Civil Practice Law provides for a motion to dismiss a complaint for failure to state a cause of action (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), and an appeal from such a dismissal preserves for review only the question of the legal sufficiency of the complaint. (Payne v. Mill Race Inn (1987), 152 Ill. App. 3d 269, 273.) While a motion to dismiss admits all well-pleaded facts as true, the motion does not admit conclusions of law or conclusions of fact which are not supported by allegations of specific facts which form the basis of such conclusions. (Payne, 152 Ill. App. 3d at 273.) It is well established that Illinois is a fact-pleading State, and if, after deleting the conclusions that are pleaded, there are not sufficient allegations of fact to state a cause of action, the motion to dismiss must be granted regardless of whether it informs the defendant in a general way of the nature of the claim against him. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 424, 426.) Although pleadings are to be construed liberally, factual deficiencies may not be cured by liberal construction or argument. (88 Ill. 2d at 427.) The granting of a motion to dismiss is within the sound discretion of the trial court. 88 Ill. 2d at 422.

On appeal, plaintiff argues only that it was error for the trial court to dismiss his action based on section 1983 of the Civil Rights Act (42 U.S.C.A. §1983 (West 1981)). Under that section, plaintiff must allege sufficient facts to show two essential elements: (1) whether the conduct complained of was committed by a person acting under color of State law; and (2) whether this conduct deprived the person of rights, privileges, or immunities secured by the constitution or laws of the United States. Parratt v. Taylor (1981), 451 U.S. 527, 535, 68 L. Ed. 2d 420, 428, 101 S. Ct. 1908, 1913.

Plaintiff complains that he was deprived of his property and just compensation without procedural and substantive due process of law. The proper method of reaching the issue of the condemnor’s right to condemn plaintiff’s land was by filing a traverse or a motion to dismiss during the preliminary stage of the condemnation proceedings. (City of Chicago in Trust for the Use of Schools v. Albert J. Schorsch Realty Co. (1968), 95 Ill. App. 2d 258, 261.) Plaintiff failed to avail himself of the proper remedy to contest the propriety of the condemnation proceedings and instead elected to settle and compromise his claims with the defendants. Plaintiff’s complaint shows that, as consideration for his settlement, he was to be compensated in the sum of $920,920 for the taking of his property. We consider plaintiff’s objections to the condemnation proceedings waived, and he cannot now raise, in a collateral proceeding, issues which he could have properly raised in the eminent doipain proceedings. Plaintiff’s contentions are without merit. Our careful review of the record discloses that there was no deprivation of any kind.

Contrary to plaintiff’s misstatement of the law, condemnation proceedings do not deal merely with just compensation. As a preliminary matter, when the complaint to condemn is traversed, the trial court may determine all questions raised regarding the right of the condemnor to condemn the property. (See F. Righeimer, Jr., Eminent Domain in Illinois §4.05 at 54 (3d ed. 1986) (and cases cited therein).) The equitable principle of waiver will be recognized whenever a party intentionally relinquishes a known right, or, as in this case, when the party acts in such a manner as to warrant the inference of such a relinquishment. (In re Estate of Trahey (1975), 25 Ill. App. 3d 727, 731; National Bank v. Newberg (1972), 7 Ill. App. 3d 859, 868.) An objection to a condemnation proceeding is waived by the failure to raise it at the appropriate time during the eminent domain proceedings. Chicago Housing Authority v. Berkson (1953), 415 Ill. 159, 161; DuPont v. Sanitary District of Chicago (1903), 203 Ill. 170, 173.

Where an established State remedy to compensate a plaintiff for the taking of his property meets the requirements of due process, plaintiff will not be held to have suffered a “deprivation” so as to state a cause of action under section 1983 of the Civil Rights Act. (Parratt v. Taylor, 451 U.S. at 544, 68 L. Ed 2d at 434, 101 S. Ct. at 1917.) It cannot be seriously contended that the well-established eminent domain proceedings do not comport with due process. The hearing provided to the property owner during condemnation proceedings has been held to satisfy due process requirements. City of Chicago v. R. Zwick Co. (1963), 27 Ill. 2d 128, 131; Zurn v. City of Chicago (1945), 389 Ill. 114, 133.

The decision of a condemning body to acquire property by eminent domain is not itself a “taking” of the property, and no question of due process is presented thereby. (People ex rel. Gutknecht v. City of Chicago (1953), 414 Ill. 600, 616.) The taking of property in the constitutional sense is accomplished only by the filing of a petition, the ascertainment of value, and the payment of just compensation. (Citizens Utility Co. v. Metropolitan Sanitary District (1974), 25 Ill. App. 3d 252, 255.) Generally, no taking occurs until the execution of a purchase agreement or the conclusion of eminent domain proceedings. (Griffin v. City of North Chicago (1983), 112 Ill. App. 3d 901, 906.) The conclusory allegations in plaintiff’s complaint that he was deprived of his property for a substantial period of time merely by the filing of the township’s lawsuit is devoid of specific supporting facts. No “taking” occurs until the condemnor has physically intruded upon the premises or has radically curtailed the owner’s use of his property. (Kirby Forest Industries, Inc. v. United States (1984), 467 U.S. 1, 14, 81 L. Ed. 2d 1, 13, 104 S. Ct. 2187, 2196.) Mere market value fluctuations occurring during the pendency of a suit do not ordinarily result in a “taking.” (Kirby, 467 U.S. at 15, 81 L. Ed. 2d at 14, 104 S. Ct. at 2197.) Plaintiff’s complaint provides no specific facts showing how he was damaged by the mere filing of the condemnation suit or how he was deprived of all or an essential use of his property. (See Barbian v. Panagis (7th Cir. 1982), 694 F.2d 476, 484; see also First English Evangelical Lutheran Church v. County of Los Angeles (1987), 482 U.S. 304, 321-22, 96 L. Ed. 2d 250, 268, 107 S. Ct. 2378, 2389.) Since plaintiff never availed himself of the established procedures to determine whether a “taking” had taken place and to establish the just compensation therefor, we must conclude that defendants caused him no deprivation of any kind.

Neither is there any basis in plaintiffs complaint that defendants instituted a baseless lawsuit which effectively placed plaintiff under duress, forcing him to settle the litigation. Duress is defined as “a condition where one is induced by a wrongful act or threat of another to make a contract under circumstances which deprive him of the exercise of his free will.” (Kaplan v. Kaplan (1962), 25 Ill. 2d 181, 185.) It is not duress to institute or threaten to institute legal actions, nor is it duress for a person to assert his legal rights. (25 Ill. 2d at 187; see also City of Chicago v. American National Bank & Trust Co. (1986), 146 Ill. App. 3d 784, 789 (defendants estopped from filing traverse where prior agreement had been entered into without duress).) Plaintiff has failed to provide any specific facts which would support a claim of duress. Plaintiff merely concludes that it was an abuse of process for the township to institute legal proceedings because of his subjective belief that his property did not qualify for condemnation under the Open Space Act. It is clear that the township could, in good faith, institute such proceedings even where there was doubt as to whether the property was exempt under the 50-acre minimum or the agricultural exceptions to that act. For example, contrary to plaintiff’s assertions, parcels of property consisting of less than 50 acres can in some circumstances be subject to condemnation proceedings. See, e.g., Town of Libertyville v. Connors (1989), 185 Ill. App. 3d 317; Town of Libertyville v. Blecka (1989), 180 Ill. App. 3d 677.

Again, plaintiff’s remedy lay in filing a traverse or a motion to dismiss during the preliminary stage of the eminent domain suit rather than in instituting a collateral proceeding as he has chosen to do.

Finally, we point out that even if plaintiff had not waived his rights by abandoning the eminent domain proceedings, plaintiff’s voluntary compromise and settlement of the case for consideration barred him from raising the issues that could have otherwise been raised before the trial court. (Gatto v. Walgreen Drug Co. (1975), 61 Ill. 2d 513, 523.) A compromise is defined as:

“ ‘[A]n arrangement arrived at either in court or out of court, for settling a dispute on what appear to the parties to be equitable terms, having regard to the uncertainty they are [found] in regarding the facts, or the law and the facts together ***.’ (11 Ill. L. & Prac. Compromise & Settlement sec. 2 (1981).) Because they promote peace and discourage needless litigation, public policy favors compromises and settlements, and a presumption of validity arises when they are created [citation], and in the absence of mistake or fraud, the agreement is conclusive on the parties as to all matters included therein [citation]. A valid compromise is in the nature of a contract and operates as a merger of all included claims, as well as a bar thereto.” (In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 357-58.)

Further, the belated discovery of a new theory by plaintiff’s attorney does not constitute a mistake sufficient to set aside such an agreement. (Thatcher v. Eichelberger (1981), 102 Ill. App. 3d 231, 237.) After compromising his disputed claims, plaintiff’s only remedy is based upon the settlement contract itself. Fred W. Wolf Co. v. Salem (1889), 33 Ill. App. 614, 618.

In sum, we hold that the eminent domain proceedings available to plaintiff were sufficient to satisfy due-process requirements and plaintiff’s failure to timely object in those proceedings did not result in a “deprivation” of his rights such that he could not state a cause of action under section 1983. Plaintiff’s actions in abandoning those proceedings and in voluntarily entering into a compromise and settlement of the disputed claims resulted in a waiver of his rights, and he is now barred from further pursuing them by means of a collateral proceeding. We do not condone plaintiff’s attempt to fabricate a section 1983 cause of action out of his failure to timely assert his rights during the condemnation proceedings. See generally Coniston Corp. v. Village of Hoffman Estates (7th Cir. 1988), 844 F.2d 461.

In conclusion, in view of plaintiff’s failure to tender an amended complaint, the trial court did not err in denying plaintiff’s motion to file an amended complaint. Dick v. Gursoy (1984), 124 Ill. App. 3d 185, 187; Hassiepen v. Marcin (1974), 22 Ill. App. 3d 433, 436.

For the foregoing reasons, the judgment of the circuit court of McHenry County is affirmed.

Affirmed.

INGLIS and DUNN, JJ., concur.


author: JUSTICE LINDBERG

text:
    THOMAS BRADY et al., Plaintiffs-Appellants, v. PRAIRIE MATERIAL SALES, INC., Defendant-Appellee (Bruce R. Nagel et al., Defendants).
    Second District
    No. 2—88—1231
    Opinion filed November 2, 1989.

      John J. Henely, Ltd., of Chicago (John C. Lorenzen, of counsel), for appellants.
    D. Kendall Griffith, Thomas A. Brabec, and Gerald Haberkorn, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Stephen R. Swofford, of counsel), for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiffs, Thomas and Linda Brady, appeal from an order of the circuit court of Kane County granting defendant Prairie Material Sales Inc.’s motion to dismiss with prejudice pursuant to section 2— 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). The trial court entered the required finding of “no just reason to delay enforcement or appeal,” and plaintiffs filed a timely notice of appeal pursuant to Supreme Court Rule 304 (107 Ill. 2d R 304). The issue on appeal is whether a written settlement agreement entered into by plaintiffs with defendant’s employee, Bruce Nagel, operates to discharge defendant.

Plaintiff Thomas Brady was working in his office in a building adjacent to Route 53 in the Village of Bolingbrook, Illinois, on November 18, 1986. It was snowing heavily. Bruce Nagel was hauling a load of gravel north on Route 53 for his employer, defendant. A car, driven by Keith Brogan, traveling southbound on Route 53 swerved into Bruce Nagel’s lane, and in avoiding Brogan, Bruce Nagel lost control of his truck, went off the road and crashed into the building in which plaintiff Thomas Brady was working. Plaintiff was seriously injured and requires constant medical attention which costs $10,000 to $12,000 per month.

Plaintiffs filed suit for personal injuries and loss of consortium against Keith Brogan, Bruce Nagel and defendant. Plaintiffs’ counts against Keith Brogan and Bruce Nagel were based on theories of negligence. Plaintiffs’ count against defendant was based solely on a theory of respondeat superior and sought to hold defendant liable for the alleged negligent driving of its employee, Bruce Nagel.

Plaintiffs entered into a written settlement agreement with Bruce Nagel and Bruce Nagel’s personal insurance carrier, West Bend Mutual Insurance Co. (West Bend). Plaintiff Thomas Brady accepted $80,000 and his wife, Linda Brady, accepted $20,000. Bruce Nagel’s policy had a limit of $100,000. In return, plaintiffs released Bruce Na-gel and West Bend from further liability for the accident as evidenced by the written settlement agreement, whose construction and interpretation is at issue in this appeal. Plaintiffs filed a motion for a good-faith finding pursuant to section 2(c) of the Contribution Among Joint Tortfeasors Act (Contribution Act) (Ill. Rev. Stat. 1987, ch. 70, par. 302(c)), and the trial court granted the motion and dismissed Bruce Nagel and West Bend from the suit.

Defendant then filed its motion to dismiss pursuant to section 2— 619 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619), arguing that the written settlement agreement constituted a full release of all claims and other parties including defendant. Plaintiffs responded that the instrument was a covenant not to sue and only released those parties specifically named, Bruce Nagel and West Bend. In support, plaintiffs filed the affidavit of their attorney and the attorney for Bruce Nagel which stated that the instrument was only intended by these attorneys to release Bruce Nagel and West Bend from further liability and was not intended to release defendant. Defendant was not named in the instrument. Defendant did not pay any consideration for the agreement. The trial court, without relying on the supporting affidavits by the attorneys filed by plaintiffs, ruled that the agreement discharged defendant from liability to plaintiffs and granted defendant’s motion.

In construing written settlement agreements between an injured party and those sought to be held liable, the issue is often framed in terms of whether the instrument is a release or a covenant not to sue. (Pate v. City of Sesser (1979), 75 Ill. App. 3d 233, 393 N.E.2d 1146.) A release is said to extinguish a cause of action, while a covenant not to sue affects only the right to bring suit and not the underlying cause of action itself. (Pate v. City of Sesser (1979), 75 Ill. App. 3d 233, 393 N.E.2d 1146.) An unqualified release of one joint tortfeasor operated to discharge all other joint tortfeasors while a covenant not to sue one joint tortfeasor did not release all other joint tortfeasors. (Pate v. City of Sesser (1979), 75 Ill. App. 3d 233, 393 N.E.2d 1146; cf. Stewart v. Village of Summit (1986), 114 Ill. 2d 23, 499 N.E.2d 450 (covenant not to sue employee which contains no express reservation of rights to sue others is interpreted as evidencing intent to bar covenantor’s cause of action in respondeat superior against employee’s employer, while covenant not to sue employee which contains a general reservation of rights clause in favor of covenantor expresses intent to preserve right of covenantor to proceed against employee’s employer on a theory of respondeat superior).) However, framing the issue as whether an instrument is a release or a covenant not to sue and thereby releases other persons not a party to the agreement distorts the real issue, which is a determination of the intent of the parties to the agreement. Stewart v. Village of Summit (1986), 114 Ill. 2d 23, 499 N.E.2d 450; Pate v. City of Sesser (1979), 75 Ill. App. 3d 233, 393 N.E.2d 1146.

Whether called a release or a covenant not to sue, the written agreement is a contract and subject to the normal rules of contract construction and interpretation. (Wysocki v. Upjohn Co. (1987), 157 Ill. App. 3d 868, 510 N.E.2d 994.) Where a written instrument evidencing an agreement is clear and unambiguous, the meaning of the instrument and the intention of the parties is to be determined from the face of the instrument without resort to parol evidence or any other extrinsic aids. (Rakowski v. Lucente (1984), 104 Ill. 2d 317, 472 N.E.2d 791.) The instrument which plaintiff Thomas Brady signed and delivered to Bruce Nagel and West Bend provided:

“RELEASE OF ALL CLAIMS KNOWN ALL MEN BY THESE PRESENTS:
That the undersigned, THOMAS BRADY being of lawful age, for the sole consideration of the sum of EIGHTY THOUSAND AND NO/100******Dollars ($80,000.00) to the undersigned in hand paid, the receipt and sufficiency of which is hereby acknowledged, does hereby for myself and for my heirs, executors, administrators, successors and assigns release, acquit and forever discharge Bruce Nagel and West Bend Mutual Insurance Company and his, her, their, or its agents, servants, successors, heirs, executors, administrators, officers, directors and employees and insurers, and all other persons, firms, corporations, associations, partnerships or other entities, of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever, which the undersigned has had, now has, or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries and property damages, and the consequences thereof, resulting or to result from an accident, which occurred on or about the 18th day of November, 1986, at or near Illinois Route 53 at its intersection with Royce Road, Village of Bolingbrook, County of Will, State of Illinois.
It is understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that this settlement and the payment made pursuant thereto are not to be construed as an admission of liability on the part of the party or parties hereby released, and that the party or parties hereby released deny any and all liability with respect to the aforesaid accident and intend merely to avoid litigation and buy their peace.
The undersigned understands and hereby declares and represents that the injuries sustained are or may be permanent and progressive in nature and that recovery therefrom is uncertain and indefinite and that there may be unknown or unanticipated injuries, losses, medical expenses, and other expenses or damages resulting from the aforesaid accident and that in executing this Release it is understood and agreed that this Release is intended to include all such injuries, losses, medical expenses and other expenses or damages.
This release expressly reserves all rights of the person, or persons, or entities on whose behalf the payment is made and the rights of all persons and parties in privity or connected with them, and expressly reserves to them their right to pursue any and all of their legal remedies, if any, including but not limited to claims for contribution, indemnity, property damage and personal injury against the undersigned or those in privity or connected with the undersigned.
This Release contains the entire agreement between the parties hereto, and the terms of- this Release are contractual and not a mere recital.” (Emphasis added.)

Plaintiff Linda Brady signed an identical instrument, except the amount received was $20,000.

We construe this instrument to be an unqualified release by plaintiffs of all causes of actions or other rights of plaintiffs against any person or entity including defendant which arose or might arise out of the accident and resulting injuries which occurred on November 18, 1986. The instrument is entitled “Release of All Claims.” The term “release” and not the term “covenant” appears throughout the entire instrument. The language of the first paragraph appearing in emphasis above clearly and unambiguously expresses an intent on the part of plaintiffs to release any and all rights against any and all persons or other entities. The instrument further states in the second paragraph that the settlement is a compromise of a doubtful and disputed claim and intended to avoid litigation and buy peace. The third paragraph states that the plaintiffs understand the uncertain nature of the injuries and fully intend to release all claims for any and all injuries known and unknown. The language of these three paragraphs is almost identical to the language of an instrument construed by the Appellate Court for the First District in Wysocki v. Upjohn (1987), 157 Ill. App. 3d 868, 510 N.E.2d 994. The court in Wysocki found such language contained in a written settlement with a hospital and others to express a clear and unambiguous intent to release all other tortfeasors even those not a party to the settlement agreement including the defendant, who was being sued under a theory of strict products liability. (Wysocki v. Upjohn (1987), 157 Ill. App. 3d 868, 510 N.E.2d 994.) Nor do we interpret the fourth paragraph, which reserves certain rights, to require us to interpret the agreement as a covenant not to sue or to find an ambiguity requiring us to resort to extrinsic evidence to resolve the intention of the parties. (Mitchell v. Weiger (1977), 56 Ill. App. 3d 236, 371 N.E.2d 888.) This paragraph reserves all rights Nagel and West Bend may have against plaintiffs. This paragraph is not inconsistent with any of the paragraphs already discussed or our interpretation of the instrument as an unqualified release by plaintiffs of all persons.

Plaintiffs argue that they never intended to release their claim against defendant or others and rely on the affidavits of the attorneys who drafted the agreement. Further, they argue that in light of the extremely serious injuries suffered by Thomas Brady and the medical expenses that have been incurred and will be incurred in the future, the settlement amount of $100,000 was a fraction of the value of their claims and supports their argument that they only intended to release Bruce Nagel and West Bend. Plaintiffs are asking us to rely upon extrinsic evidence to interpret a clear and unambiguous written instrument in a manner directly contrary to the intent of plaintiffs as expressed in the instrument. Where the written instrument is clear and unambiguous, extrinsic evidence as to what the parties may have understood the language of the instrument to mean is not admissible. Rakowski v. Lucente (1984), 104 Ill. 2d 317, 472 N.E.2d 791.

Plaintiffs argue that extrinsic evidence is admissible to prove intent where both parties make a mutual mistake of fact. (Beynon Building Corp. v. National Guardian Life Insurance Co. (1983), 118 Ill. App. 3d 754, 455 N.E.2d 246.) Therefore, plaintiffs contend the affidavits of the attorneys, filed by plaintiffs in response to defendant’s motion to dismiss, may be relied upon to demonstrate that the release contract should be interpreted to reserve a right in plaintiffs to sue defendant. Plaintiffs misunderstand the rules regulating the admissibility of parol or extrinsic evidence.

Parol evidence is admissible to prove the intent of the parties to an ambiguous written instrument but not admissible where there is a clear and unambiguous written instrument. (Rakowski v. Lucente (1984), 104 Ill. 2d 317, 472 N.E.2d 791.) However, where an unambiguous written instrument is alleged, due to mistake, not to express the actual agreement of the parties, the instrument may be reformed by the court to express the actual agreement, if proved by clear and convincing evidence. (Briarcliffe Lakeside Townhouse Owners Association v. City of Wheaton (1988), 170 Ill. App. 3d 244, 524 N.E.2d 230.) In such a reformation action or situation, parol evidence is not admitted to aid in interpretation of the written instrument but to prove by clear and convincing evidence the actual agreement in light of the allegation that the written instrument, in spite of the apparent agreement expressed by its language, fails to express the actual agreement entered into between the parties. (Briarcliffe Lakeside Townhouse Owners Association v. City of Wheaton (1988), 170 Ill. App. 3d 244, 524 N.E.2d 230.) Plaintiffs never argued in the trial court that the release contract, due to a mistake of fact, failed to express the actual agreement of the parties, and, therefore, the release contract should be reformed. Rather, the argument of plaintiffs’ counsel is that the language of the release as written should be construed so as not to cause a release of defendant. We decline to so hold. Plaintiffs have waived any reformation argument by not raising it in the trial court. Cosentino v. Price (1985), 136 Ill. App. 3d 490, 483 N.E.2d 297.

Additionally, where a defendant’s motion to dismiss is based upon a release agreement, valid on its face, then the burden shifts to the plaintiff to sufficiently allege and prove that a material issue of fact exists which would invalidate the release agreement. (Meyer v. Murray (1979), 70 Ill. App. 3d 106, 387 N.E.2d 878.) Plaintiffs, in addition to having never raised the mistake or reformation argument in the trial court, did not allege in their response to defendant’s motion specific facts, supported by affidavits, that would, if proved, entitle plaintiffs to reformation of the release contract. (See Castro v. Chicago, Rock Island & Pacific R.R. Co. (1980), 83 Ill. 2d 358, 415 N.E.2d 365; 107 Ill. 2d R. 191(a) (requirements of affidavits filed in response to section 2 — 619 motions); Briarcliffe Lakeside Townhouse Owners Association v. City of Wheaton (1988), 170 Ill. App. 3d 244, 524 N.E.2d 230 (listing required allegations to state a cause of action for reformation based on mutual mistake).) The most obvious deficiency of plaintiffs’ affidavits is that they refer to the intention of the attorneys who drafted the written release and say nothing about the intent of the parties or the substance of the alleged actual agreement. (See Briarcliffe Lakeside Townhouse Owners Association v. City of Wheaton (1988), 170 Ill. App. 3d 244, 524 N.E.2d 230.) These affidavits would be insufficient to raise a question of material fact that would defeat defendant’s motion to dismiss. Castro v. Chicago, Rock Island & Pacific R.R. Co. (1980), 83 Ill. 2d 358, 415 N.E.2d 365.

Plaintiffs argue that section 2(c) of the Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 302(c)), as interpreted by the supreme court in Alsup v. Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196, 461 N.E.2d 361, evidences a legislative intent that a release of specifically named tortfeasors does not, by its additional use of general release language, operate to discharge other tortfeasors who were not parties to the contract and were not designated by name or otherwise specifically identified. Plaintiffs argue that under Alsup, the release they signed only operates to discharge the liability of those named, i.e., Bruce Nagel and West Bend. We agree with plaintiffs’ interpretation of Alsup.

Section 2(c) of the Contribution Act provides:

“(c) When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the ' others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 70, par. 302(c).)

Section 2(c) was designed to abolish the harsh and unfair common-law rule that a release of one joint tortfeasor released all other joint tortfeasors by operation of law. (Alsup v. Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196, 201, 461 N.E.2d 361, 364.) The supreme court in Alsup refused to give effect to a broadly worded general release which purported to release payer and “all other persons, firms, and corporations, both known and unknown.” (Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196, 200, 461 N.E.2d 361, 363.) The supreme court, after recognizing the common use of these types of general release forms, refused to interpret such language as meeting the requirements of section 2(c) for discharge of other tortfeasors, viz., “unless its terms so provide.” (Alsup v. Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196, 200, 461 N.E.2d 361, 363.) The supreme court reasoned that to give effect to such language in the release contract would often result in the unintended release of persons who were strangers to the release contract. (Alsup v. Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196, 201, 461 N.E.2d 364.) Such a result, the supreme court concluded, would thwart one of the important purposes behind the Contribution Act, which was intended to abolish the common-law rule that produced the involuntary discharge of joint tortfeasors. (Alsup v. Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196, 201, 461 N.E.2d 361, 364.) The supreme court in Alsup held that in order for a release to discharge tortfeasors, other than the ones who bargained for the release, the release must specifically identify the other tortfeasors in order to discharge their liability. Alsup v. Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196, 461 N.E.2d 361; Trexler v. Chrysler Corp. (1984), 104 Ill. 2d 26, 470 N.E.2d 300.

Accordingly, in spite of the clear and unambiguous nature of the broadly worded general release, defendant, who was not a party to the release contract nor designated by name or otherwise specifically identified, is not discharged from liability to plaintiffs as a result of the release contract entered into between plaintiffs and Bruce Na-gel and West Bend. McNamara v. Shermer (1987), 157 Ill. App. 3d 864, 510 N.E.2d 950. Cf. Wysocki v. Upjohn Co. (1987), 157 Ill. App. 3d 868, 510 N.E.2d 994 (Contribution Act, by its terms, applies to causes of action arising on or after March 1, 1978', and, therefore, Alsup is inapplicable to release agreement concerning accident which occurred on October 3,1975).

Defendant argues that where the employer is being sued solely on a theory of respondeat superior, the employer is not “any of the other tortfeasors” as that term'is used in section 2(c) of the Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 302(c)) so as to require that the employer be specifically identified in order to be released by a general release contract between the employer’s employee and an injured party where the employer seeking release was not a party to the release contract. (Bristow v. Griffitts Construction Co. (1986), 140 Ill. App. 3d 191, 488 N.E.2d 332 (found Alsup inapplicable to prevent covenant not to sue entered between injured party and negligent employee from discharging employee’s employer from liability based on a theory of respondeat superior).) Bristow, unlike the instant case, involved the effect of a covenant not to sue an employee given by a plaintiff in exchange for $20,000. The court in Bristow held that a covenant not to sue an employee extinguished the right of the plaintiff to proceed against the employee’s employer under a theory of respondeat superior. (Bristow v. Griffitts Construction Co. (1986), 140 Ill. App. 3d 191, 488 N.E.2d 332.) The court in Bristow based its holding on its interpretation of the supreme court’s holding in Holcomb v. Flavin (1966), 34 Ill. 2d 558, 216 N.E.2d 811, that a covenant not to sue an employee must operate to release a vicariously liable employer or the employee would derive no benefit from the covenant because the employer, if held liable, could seek indemnity against the employee and deprive the employee of the benefit of the covenant. (Bristow v. Griffitts Construction Co. (1986), 140 Ill. App. 3d 191, 193, 488 N.E.2d 332, 334.) The Bristow court then addressed the supreme court’s holding in Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 312 N.E.2d 259, which held that a covenant not to sue an employee which expressly reserved the right to sue the employer preserved the plaintiff’s rights to proceed against the employer on a theory of respondeat superior. The Bristow court reasoned that such a result, which appeared to deny the employee the benefit of his covenant, was permitted because the employee expressly agreed. Bristow v. Griffitts Construction Co. (1986), 140 Ill. App. 3d 191, 193, 488 N.E.2d 332, 334.

The Bristow court then addressed section 2(c) of the Contribution Act and found it inapplicable to prevent the discharge of the employer because the Bristow court concluded that a vicariously liable employer was not an “other tortfeasor” to whom section 2(c) of the Contribution Act applied. (Bristow v. Griffitts Construction Co. (1986), 140 Ill. App. 3d 191, 488 N.E.2d 332.) The Bristow court further reasoned that section 2(d) of the Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 302(d)) had not been applied to bar suits for implied indemnification based on vicarious liability or respondeat superior, and, therefore, unless the employer was discharged by the covenant not to sue, the employee would get nothing of value for his payment. (Bristow v. Griffitts Construction Co. (1986), 140 Ill. App. 3d 191, 198, 488 N.E.2d 332, 338.) The Bristow court reasoned that this was consistent with policies of encouraging settlements and holding parties responsible based on their relative culpabilities. Bristow v. Griffitts Construction Co. (1986), 140 Ill. App. 3d 191, 198, 488 N.E.2d 332, 338.

We disagree with the rationale expressed in Bristow and decline to follow its reasoning to hold that section 2(c) as interpreted in Alsup v. Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196, 461 N.E.2d 361, does not apply to the instant situation. First, as the outcome in Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 312 N.E.2d 259, shows, although an employer’s liability based on respondeat superior may be derivative, a covenant not to sue affecting plaintiff’s rights against the employee does not automatically by operation of law affect plaintiff’s rights against the employer. (Stewart v. Village of Summit (1986), 114 Ill. 2d 23, 499 N.E.2d 450.) The court in Stewart stated that Holcomb and Edgar County were “consistent with the long-established rule that the agreement is the controlling factor and the governing fact to be determined is the intent of the parties.” (Stewart v. Village of Summit (1986), 114 Ill. 2d 23, 30, 499 N.E.2d 450, 453.) The court in Stewart did not interpret Holcomb and Edgar County to depend on a distinction between a derivatively liable tortfeasor, as opposed to other tortfeasors. Second, although the defendant in Stewart sought to rely on Bristow, the supreme court in Stewart declined to address the issue decided in Bristow of whether section 2(c) of the Contribution Act applied to prevent the release of the employer because it based its holding on the expressed intent of the parties not to release the employer, who was liable under a theory of respondeat superior. Stewart v. Village of Summit (1986), 114 Ill. 2d 23, 499 N.E.2d 450.

Third, we disagree with the Bristow court’s conclusion that an employer liable solely on a theory of respondeat superior is not one of the “other tortfeasors” under section 2(c) of the Contribution Act. The use of the term “tortfeasors” in the Contribution Act seems synonymous with “persons *** subject to liability in tort” and “persons liable in tort” as used in sections 2(a) and 2(c) (Ill. Rev. Stat. 1987, ch. 70, pars. 302(a), (c)). Under the doctrine of respondeat superior, the liability of the master and servant for the negligent acts of the servant is deemed to be that of one tortfeasor. (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217.) “The operative facts which comprise the alleged basis for liability of the master are identical to those which would prove the servant liable.” (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 124, 382 N.E.2d 1217, 1221.) Since the servant who acts negligently is obviously a person liable in tort, it is reasonable to conclude that the liability of the master, although derivative, is still a form of liability in tort as that term is used in the Contribution Act, and an employer is also a “tortfeasor” as that term is used in the Contribution Act. (Cf. McCottrell v. City of Chicago (1985), 135 Ill. App. 3d 517, 481 N.E.2d 1058 (plaintiff seeking to recover for injuries caused by negligence of defendant’s employee may sue either employee or defendant employer because they are jointly and severally liable).) The Local Governmental and Governmental Employees Tort Immunity Act establishes various types of “tort” immunity for governmental entities, where the governmental entities’ liability is derivative and arises solely due to the negligent acts of the employee of the governmental entity. (See generally Ill. Rev. Stat. 1987, ch. 85, par. 1 — 101 et seq.) We do not find the legislature intended to exclude parties derivatively liable for the negligent acts of others from the term “tortfeasor” as used in the Contribution Act.

Fourth, the supreme court has repeatedly declined to address whether the implied indemnity action between an employer and employee survives under sections 2(d) and 2(e) of the Contribution Act in light of a good-faith settlement involving a derivatively liable party. (Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill. 2d 245, 527 N.E.2d 1248.) And, we do not agree with the Bristow court’s conclusion that such a claim for indemnity is not affected by the Contribution Act and, therefore, that the employee may receive nothing for settling because he is still exposed to an indemnity action. See Frazer v. A.F. Munsterman, Inc. (1986), 145 Ill. App. 3d 1092, 496 N.E.2d 309, aff’d on other grounds (1988), 123 Ill. 2d 245, 527 N.E. 2d 1248; see also Bristow v. Griffitts Construction Co. (1986), 140 Ill. App. 3d 191, 488 N.E.2d 332 (dissenting opinion).

We hold that section 2(c) of the Contribution Act as interpreted by Alsup v. Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196, 461 N.E.2d 361, does apply to prevent an unqualified general release, given to an employee tortfeasor, from releasing an employer who was not specifically identified in the release and was not a party to the release agreement even where the employer’s liability is based on respondeat superior.

Reversed and remanded.

REINHARD and McLAREN, JJ., concur.


author: JUSTICE PvEINHARD

text:
    THE VILLAGE OF GLEN ELLYN, Plaintiff-Appellant, v. FRANK T. FUJINAGA, Defendant-Appellee.
    Second District
    No. 2—89—0317
    Opinion filed November 2, 1989.

      Brian R. McKillip, of Wheaton, for appellant.
    No brief filed for appellee.
   JUSTICE PvEINHARD

delivered the opinion of the court:

Frank T. Fujinaga, defendant, was charged in a nontraffic complaint ticket in the circuit court of Du Page County with possession of less than 10 grams of cannabis in violation of a Village of Glen Ellyn (Village) ordinance (Glen Ellyn, Ill., Municipal Code title 6, ch. 2, §6— 2 — 3.16(B) (1981)), which is punishable by a fine only. Defendant appeared for arraignment on February 28, 1989, and the trial judge dismissed the complaint. The court ruled that the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 801 et seq.) precluded it from exercising jurisdiction over defendant, a minor.

The Village, plaintiff, appeals pursuant to Supreme Court Rule 301 (107 Ill. 2d R. 301) from the circuit court’s dismissal of the complaint against defendant for possession of cannabis. The issue raised is whether the circuit court had jurisdiction other than through the procedures contained in the Juvenile Court Act in this prosecution of a juvenile for violation of a Village ordinance where the penalty for its violation is a fine only.

On January 27, 1989, a verified nontraffic complaint and arrest ticket was executed and filed with the circuit court of Du Page County. The face of the complaint shows that defendant was born June 4, 1973, indicating that he was 15 years old at the time of the alleged offense. On February 28, 1989, defendant appeared with his parents for arraignment. When informed that defendant was 15 years old, the trial judge determined that he was without jurisdiction to hear the case against him because defendant was a juvenile. The court sua sponte dismissed the charge against defendant and informed him that any further proceedings on the matter would have to be brought in juvenile court. The court rejected the Village’s contention that jurisdiction was proper because the offense charged carried a penalty of a fine only.

We note initially that no brief has been filed with this court on behalf of the defendant. However, where the record is simple and the claimed errors are such that the court can easily decide them without the aid of an appellee’s brief, as here, a reviewing court should decide the merits of the appeal. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495.) Although the Glen Ellyn village ordinance was not made part of the record, we take judicial notice of its provisions pursuant to section 8 — 1002 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 1002).

On appeal, the Village contends that although section 5 — 4(1) of the Juvenile Court Act (Act) (Ill. Rev. Stat. 1987, ch. 37, par. 805— 4(1)) generally requires prosecutions against minor defendants to be carried out according to the Act’s procedures in juvenile court, an exception to this requirement contained in section 5 — 4(2) of the Act is clearly applicable in the instant case. The relevant provisions of the Act which were in effect on January 27,1989, read as follows:

“(1) Except as provided in this Section, no minor who was under 17 years of age at the time of the alleged offense may be prosecuted under the criminal laws of this State or for violation of an ordinance of any political subdivision thereof.
(2) Subject to paragraph (5) of Section 5 — 10, any minor alleged to have committed a traffic, boating or fish and game law violation whether or not the violation is punishable by imprisonment or an offense punishable by fine only may be prosecuted therefor and if found guilty punished under any statute or ordinance relating thereto, without reference to the procedures set out in this Act.” (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 4.)

Although section 5 — 4(2) has been amended effective July 1, 1989 (Ill. Rev. Stat., 1988 Supp., ch. 37, par. 805 — 4(2)), the change does not bear on the question presented.

The Village maintains that, because the ordinance violation which defendant was charged with is punishable by a fine only, the Juvenile Court Act did not prohibit the circuit court from hearing this case.

In City of Waukegan v. Forster (1978), 59 Ill. App. 3d 842, 376 N.E.2d 356, this court had occasion to interpret a prior version of the statutory provision presently at issue. The provision interpreted in that case, section 2 — 7 of the Juvenile Court Act of 1965 (Ill. Rev. Stat. 1973, ch. 37, par. 702 — 7), stated that “any minor alleged to have committed *** an offense punishable by fine only may be prosecuted therefor and if found guilty punished under any statute or ordinance relating thereto, without reference to the procedures set out in this Act.” (Ill. Rev. Stat. 1973, ch. 37, par. 702 — 7(2).) This language is identical to that currently at issue so far as it concerns prosecutions for offenses punishable by a fine only. Therefore, our decision in City of Waukegan v. Forster controls the result in this case.

In City of Waukegan v. Forster, we held that the “plain and unambiguous language of [the section at issue] permits the prosecution of minors for municipal ordinance violations punishable by fine only.” (City of Waukegan, 59 Ill. App. 3d at 844, 376 N.E.2d at 357-58.) The language of the version of the statute applicable here is the same, and we hold that the statute allows the prosecution of defendant for the Village ordinance prohibiting possession of cannabis without regard to the procedures set out in the Juvenile Court Act. Therefore, the trial court erred by dismissing the complaint against defendant.

The judgment of the circuit court dismissing the Village’s complaint is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

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

       Although the common-law record shows that defendant was also charged with theft under $300 in violation of another Village ordinance, the apparent dismissal of that charge has not been appealed.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID L. DARNELL, Defendant-Appellant.
    Second District
    No. 2—88—0879
    Opinion filed November 2, 1989.

      Mary Robinson, of Robinson & Skelnik, of Elgin, for appellant.
    Michael P. Coghlan, State’s Attorney, of Sycamore (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, David Darnell, was convicted in a bench trial of the offense of harassment by telephone (Ill. Rev. Stat. 1987, ch. 134, par. 16.4 — 1(2)) and was sentenced to one year’s probation, six months’ periodic imprisonment, and a fine of $500. Defendant timely filed this appeal. While there are three issues raised before us, we deem it necessary to address only one, and we reverse on that issue alone.

Apparently, there was no court reporter present at defendant’s trial; however, a bystander’s report was prepared pursuant to Supreme Court Rule 323(c) (107 Ill. 2d R. 323(c)). According to the report, the State called three witnesses. The first witness was Cynthia Fabrizius, defendant’s ex-wife with whom he had two children. Fabrizius testified to facts surrounding the numerous, allegedly threatening, telephone calls defendant had made to her. The second witness was Tim Freeman, Fabrizius’ boyfriend at the time of the alleged harassment, who testified that he overheard one of defendant’s telephone calls to Fabrizius. The State’s final witness was an employee of the telephone company who presented records of telephone calls made from defendant’s home.

During a break, either immediately after the third witness testified or shortly before cross-examination was concluded, the trial judge called the attorneys into his chambers and asked what efforts had been made to settle the case. He commented that it appeared from the telephone records presented that “defendant would get home from work and call everyone under the sun, perhaps after having a few beers.” The assistant State’s Attorney responded that since defendant was unwilling to plead guilty, no serious discussions had been had as to a negotiated disposition. Defense counsel told the judge that the State was asking defendant to plead guilty without regard to the contents of the telephone calls and mentioned that there was an additional misdemeanor charge pending against defendant alleging a violation of a protection order.

The judge then suggested that the case might be disposed of by defendant pleading guilty and being placed on court supervision since he had no prior record. Defense counsel indicated some concern about the pending protection order violation charge. The prosecutor commented that the State felt that defendant was a dangerous person and would strenuously resist court supervision. Nonetheless, defense counsel stated that he would propose the judge’s solution to defendant.

After discussing the proposal with defendant, defense counsel returned to chambers and told the judge that defendant elected to proceed with the trial. After the trial was reconvened, the State rested. The defense then moved for a directed finding on both the telephone harassment charge and a charge alleging that defendant violated the order of protection. As to the latter charge, the court granted the motion, finding that the State had failed to prove that defendant had been served with papers or otherwise had knowledge of the protective order. However, the judge denied the motion for a directed finding on the telephone-harassment charge, ruling that the State had made a prima facie case.

Defendant then testified on behalf of himself, claiming that he did not threaten Fabrizius or their children. He argued that most of the phone calls were made for the purpose of discussing visitation and similar topics concerning the children and that no phone calls were made for the purpose of harassing Fabrizius.

Following closing arguments, the court found defendant guilty of telephone harassment. After being sentenced, defendant filed a post-trial motion for a new trial and a motion for reconsideration of sentence. Both motions were denied, and this appeal followed.

Defendant argues that by initiating plea discussions before hearing any defense testimony, the trial judge improperly prejudged the defendant’s guilt, thereby depriving defendant of due process.

Initially, we observe that this case appears to be one of first impression. We can find no case, and the parties cite none, where the judge interrupts a criminal trial and initiates plea discussions.

The initiation of plea discussions by the trial judge is indisputably improper. (107 Ill. 2d R 402(d)(1).) While the State does not condone such conduct, it argues that in the case at bar, the error was not so prejudicial as to mandate reversal. The State contends that the trial judge maintained the role of a neutral arbitrator and offers as proof of the judge’s impartiality the fact that defendant’s motion for a directed finding in the protection-order-violation charge was granted shortly after the plea discussions took place. The State argues that although the trial judge initiated plea discussions in violation of Rule 402, proof of that violation, standing alone, does not authorize a conclusion that defendant’s due process rights were violated. The State cites People v. Norris (1986), 147 Ill. App. 3d 178, 181, in support of its argument.

We believe that Norris is inapplicable to the case presented here. In Norris, the petitioner claimed that he was coerced into pleading guilty as a result of court-initiated plea discussions. The appellate court found that such bare assertions did not establish that a plea was entered involuntarily. (Norris, 147 Ill. App. 3d at 181.) In the case at bar, the judge interrupted the trial itself to initiate plea negotiations. Although defendant did not accept the plea, and therefore does not claim he was coerced, he argues that the judge’s actions indicate that he had prejudged defendant’s guilt. We agree. The mere fact that the judge granted defendant’s motion for a directed finding in the protection-order-violation charge does not negate the inference that the judge prematurely determined that defendant was guilty of telephone harassment.

Supreme Court Rule 402 clearly prohibits the trial judge from initiating plea discussions. The generally accepted rationale for the rule is to avoid the coercion of guilty pleas. (See People v. Robinson (1974), 17 Ill. App. 3d 310, 313.) We believe, however, that an additional rationale exists: that is, to assist the trial judge in maintaining his neutral stance. When a judge indicates his opinion of guilt in the middle of the State’s case, it reflects adversely on the judge’s ability to measure the evidence on the reasonable doubt standard. The pressure of large case loads requires expeditious handling of all matters; nonetheless, we cannot approve the situation where a judge takes such action in violation of a clear statutory mandate and denies a defendant due process of law. People v. Diaz (1971), 1 Ill. App. 3d 988, 992-93.

Defendant is entitled to a fair trial before an impartial tribunal. The right of the accused in a criminal case to an unbiased trier of fact is fundamental. (People v. McDaniels (1986), 144 Ill. App. 3d 459, 462.) No matter how strong a case is presented by the State, it is fundamental that the court should resolve the disputed issues of fact only after hearing all of the evidence with an open mind. (People v. Johnson (1972), 4 Ill. App. 3d 539, 541.) Prejudgment before all proofs are in is the very antithesis of a fair trial. McDaniels, 144 Ill. App. 3d at 462.

The record before us supports an inference that the judge had reached a conclusion of guilt prior to the presentation of all the evidence, and this was made explicit by his interrupting the trial to personally originate guilty plea negotiations. Under the circumstances, we cannot conclude that defendant was given a fair trial.

In keeping with the mandate of People v. Taylor (1979), 76 Ill. 2d 289, 309, we have reviewed the evidence and find that, if believed by the trier of fact, it was sufficient to support the conclusion that defendant was guilty beyond a reasonable doubt of harassment by telephone. This finding does not mean that we are making a determination as to defendant’s guilt or innocence which would be binding upon retrial; rather, our consideration of the evidence adduced at trial will remove the risk of subjecting defendant to double jeopardy. See People v. Ferguson (1988), 172 Ill. App. 3d 1, 12; People v. Threzzy (1987), 163 Ill. App. 3d 180, 185.

For the above stated reasons, we reverse defendant’s conviction and remand for a new trial before a different judge.

Reversed and remanded.

REINHARD and McLAREN, JJ., concur.