author: JUSTICE McCULLOUGH

text:
    ROBERT LAPPIN et al., Plaintiffs-Appellants, v. DENNIS COSTELLO et al., Defendants-Appellees.
    Fourth District
    No. 4—92—0009
    Opinion filed August 6, 1992.

      Charles L. McNeil, of McNeil & McNeil, of Mason City, for appellants.
    Richard R. Harden, of Thomas, Mamer & Haughey, of Champaign, for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

In this appeal, plaintiffs Robert Lappin and AAA Promotions, Inc., seek review of the orders of the circuit court of Champaign County dismissing counts II and V of the second-amended complaint against defendants City of Champaign (City) and Frederick Stavins, as city attorney of the City, and further granting summary judgment as to defendants Dennis Costello and the City on the remaining counts. Costello was a charging police officer at the time of the incident which is the subject of plaintiffs’ lawsuit. Counts I and IV alleged a civil rights action pursuant to sections 1983 and 1988 of the Civil Rights Act of 1871 (Civil Rights Act) (see 42 U.S.C. §§1983, 1988 (1988)) for the wilful and wanton misconduct of defendants in violating rights, privileges, and immunities accorded to plaintiffs to hold a gun show in the City. Count III is an action for false arrest. Counts II and V against Stavins and the City attempted to allege wilful and wanton misconduct on the part of defendants in violating the rights, privileges and immunities of the respective plaintiffs under sections 1983 and 1988 of the Civil Rights Act.

The issues presented in this case are whether the trial court properly dismissed counts I and V of plaintiffs’ second-amended complaint on the ground that those counts were not timely filed under the appropriate statute of limitations pursuant to section 2 — 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619), and whether any genuine issue of material fact exists which would preclude the granting of summary judgment as to defendants Costello and the City. We affirm.

On February 24, 1989, plaintiffs filed a complaint against Costello and the City for damages arising out of an incident which was alleged to have occurred on February 27, 1988. Throughout the original complaint, the liability of the City is alleged to be predicated on the actions of Costello.

On January 4, 1990, a first-amended complaint was filed by plaintiffs. In the first-amended complaint counts I and III were directed at defendants Costello and the City. Count IV was directed at Costello alone. Counts II, V, and VI named as defendants Rochelle A. Funder-burg, an assistant city attorney for the City, and the City. Counts II and V of the first-amended complaint attempted to allege actions pursuant to the Civil Rights Act against Funderburg and the City. Count VI attempted to allege a cause of action against Funderburg and the City for the allegedly unlawful arrest and prosecution of Lappin. On May 10, 1990, all counts of the first-amended complaint were dismissed on defendants’ motion. On reconsideration, the dismissals of counts I and IV were vacated, and plaintiffs were given 30 days to file an amended complaint as to counts II, III, V, and VI.

On July 19, 1990, the five-count second-amended complaint was filed. Count I was directed against defendant Costello alone and alleged a violation of Lappin’s rights by Costello, who was acting under color and authority of, and within the course and scope of his employment as a police officer for, the City. It is further alleged that at approximately 3 or 3:30 p.m. on February 27, 1988, Lappin was representing AAA Promotions, Inc., which was sponsoring and holding a gun show at 322 North Neil Street, Champaign, Illinois. At that time, it is alleged, Costello wilfully, wantonly, and illegally:

“(a) Ordered and demanded the Plaintiff to cease the operation of Plaintiff’s gun show, by use of threats of great force and violence without lawful warrant or probable cause.
(b) Ordered and demanded the public and all persons present to vacate the premises at 322 North Neil Street, Champaign, Illinois.
(c) Inflicted severe, grievous, and permanent emotional injury upon the person of the Plaintiff.
(d) Willfully and maliciously violated the Plaintiff’s Constitutional rights as enumerated hereinafter.”

The rights, privileges, and immunities secured by the United States Constitution alleged to have been violated by Costello and the City were as follows:

“(a) The right of the Plaintiff to be secure in his person, and in his own premises, against unreasonable searches and seizures, under the Fourth and Fourteenth Amendments of the Constitution.
(b) The right of the Plaintiff to be free from any abridgment [sic] of his privileges and immunities, and Plaintiff’s right not to be deprived of life, liberty, or property without due process of law, and Plaintiff’s right to the equal protection of the laws, all secured to Plaintiff by the Fifth and Fourteenth Amendments of the Constitution.
(c) The right of Plaintiff to be informed of the nature and cause of accusations against him, and the right to freedom from summary punishment, secured to him by the Sixth and Fourteenth Amendments of the Constitution.
(d) The right of the Plaintiff to peaceably assemble as secured to him by the First Amendment of the Constitution.”

As damages, Lappin alleged extreme physical and mental pain and suffering; degradation and humiliation to mind, body, personal reputation, and business reputation; refunds of admission to the public and exhibitors; lost wages and profits; extreme emotional distress, mental suffering, and humiliation; legal expenses and costs of suit; and an inability to continue his business due to impairment of his business reputation.

Count IV, also directed against Costello alone, alleged a civil rights action on behalf of AAA Promotions, Inc. Count IV is essentially a re-pleading of count II with a few exceptions. One exception is that count IV does not allege Costello wilfully, wantonly and illegally inflicted severe, grievous, and permanent emotional injury on the person of plaintiff on February 27, 1988. A second exception is that count IV does not allege a violation of a right to peaceably assemble under the first amendment. The third exception is that count IV does not allege as damages “extreme physical and mental pain and suffering” and “extreme emotional distress, mental suffering and humiliation.”

Count III is a cause of action by Lappin against Costello and the City for false arrest. The alleged wilful, wanton, and illegal acts of Costello were the following: (1) closing the gun show without a warrant or probable cause; (2) ordering all persons present to vacate the premises; (3) detaining plaintiff “for a long period of time” against his will; and (4) arresting plaintiff for violation of Champaign Municipal Code section 25 — 88 (Champaign Municipal Code §25 — 88 (1980)) and requiring him to appear in court to answer alleged charges without a warrant or probable cause to believe the plaintiff was guilty of a criminal offense.

Counts II and V were civil rights actions by Lappin and AAA Promotions, Inc., respectively, against Stavins and the City. It is alleged in these counts that Costello was acting under the direction of an assistant city attorney in wilfully, wantonly, and illegally performing those acts in the respective civil rights actions against Costello and in arresting Lap-pin. In both counts, the plaintiffs complained that defendants systematically and on a continuing basis adopted an unconstitutional policy of depriving citizens, the public, and the plaintiffs of constitutional rights, and that the allegedly unlawful arrest of Lappin and closing of the gun show resulted from this policy.

On August 24, 1990, a combined motion to dismiss was filed as to counts II, III and V, pursuant to sections 2 — 615 and 2 — 619 of the Code (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 615, 2 — 619). The motion was denied. The trial court specifically found a five-year statute of limitations applicable. (See Ill. Rev. Stat. 1989, ch. 110, par. 13 — 205.) This order was entered on October 18, 1990. On November 7, 1990, defendants also moved for a reconsideration of the ruling as to the statute of limitations. On December 28, 1990, the motion to reconsider was denied. A second motion to reconsider with new authority was filed on January 17, 1991. On June 13, 1991, finding counts II and V time-barred, those counts of the second-amended complaint were dismissed with prejudice by the trial court. Plaintiffs’ subsequent motion to reconsider was denied.

On October 8, 1991, Costello and the City moved for summary judgment as to the remaining counts. Among the attached exhibits were (1) the discovery depositions of Champaign fire inspector Jerry Lance, assistant city attorney Mary Ann Midden, Champaign police sergeant Maurice Wileaver, Officer Dennis Costello, Officer Brian blockings, Officer Christopher Wagner, and plaintiff; and (2) a copy of the article of the Champaign Municipal Code dealing with itinerant merchants. In response to the motion for summary judgment, plaintiffs filed no additional exhibits or affidavits. On November 4, 1991, summary judgment was granted in favor of Costello and the City. Plaintiffs’ motion to vacate the summary judgment was denied on December 11,1991.

The article relating to itinerant merchants in the Champaign Municipal Code includes the following definitions:

“ARTICLE IV. ITINERANT MERCHANTS DIVISION 1. GENERALLY
* * *
Goods, wares and merchandise shall mean any and all items of tangible personal property, except perishable, agricultural commodities.
Itinerant merchant shall mean any person engaging or intending to engage in business in the City for a period of time not exceeding one hundred (100) days in the retail or wholesale of any goods, wares, merchandise or commodities, and shall not include peddlers or persons selling vegetables, antiques, knickknacks, arts and crafts, and similar items through ‘flea markets,’ ‘farmers markets,’ and similar kinds of informal sales organizations.” (Champaign Municipal Code §25 — 76 (1980).)

Section 25 — 86 required an itinerant merchant to obtain a license, section 25 — 87 sets forth the license application procedure, and section 25 — 88 required a posting of $1,000 bond. Champaign Municipal Code §§25-86, 25-87, 25-88 (1980).

There is no need to recite in detail the testimony of deponents, although this court has thoroughly reviewed the depositions. It is sufficient to summarize the deposition testimony to demonstrate there was not the equivalent of a gestapo raid as alleged. On anonymous complaints, Lance went to the gun show twice. When he returned, he reported to his supervisor that there was nothing unusual, but inquired as to whether a permit had been obtained. A telephone call was made to a city clerk, who in turn called the police to inform them that plaintiffs were operating without a permit. Wileaver then called Midden for advice concerning the ordinance. Midden told Wileaver to go to the gun show and, if anyone was selling merchandise without a permit as required by the ordinance, an arrest could be made. Costello and Wagner had been to the gun show previously, at which time Costello observed there were price tags on the displayed merchandise and the nature of the merchandise displayed. On approaching the building, Wileaver observed a person collecting admission fees from the public. He also observed a posted advertisement indicating the show was going to run for the weekend. After the police entered the building in a peaceful and professional manner, Wileaver inquired as to who was in charge. He was directed to Lappin, who was in the middle of a conversation which Wileaver interpreted as renting table space to a show participant. Wileaver politely waited for the conversation to end and then asked Lappin if he was in charge. Lappin admitted he was and, on further inquiry from Wileaver, admitted he had not posted a bond. Wileaver then directed Costello to issue a notice to appear to Lappin and closed the show. Lappin admitted Costello was not disrespectful in issuing the ticket. The closing of the show took about 30 minutes, and no items of merchandise were confiscated by the police.

The first issue to be considered is whether any genuine issue of material fact exists which would preclude the granting of summary judgment as to defendants Costello and the City. Pursuant to section 2 — 1005 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005), a party may move for summary judgment and may file supporting affidavits. The opposing party may file counteraffidavits. In addition to the affidavits, the trial court may consider the pleadings, depositions and admissions to determine whether no genuine issue of material fact exists and whether the moving party is entitled to summary judgment as a matter of law. This procedure allows the trial court to determine if a genuine issue of material fact exists, but not to try the issue. While summary judgment facilitates the prompt disposition of lawsuits, it is a drastic remedy allowed only when the moving party’s right to it is clear and free from doubt. In determining the propriety of granting summary judgment, the trial court should construe pleadings, depositions, admissions, exhibits, and affidavits strictly against the movant and liberally in favor of the respondent. Although inferences may be drawn from undisputed facts, an issue should be decided by the trier of fact and summary judgment denied where reasonable persons could draw divergent inferences from the undisputed facts. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 357-59, 543 N.E.2d 1304, 1307-08.) In reviewing the granting of summary judgment, the role of the reviewing court is to determine if the trial court correctly ruled that no genuine issue of material fact exists, and if none exists, if judgment was correctly entered for the moving party as a matter of law. O’Hara v. Holy Cross Hospital (1989), 185 Ill. App. 3d 694, 699, 542 N.E.2d 11, 14.

“The entry of summary judgment is not a matter within the discretion of the trial court. In reviewing a trial court’s ruling on a motion for summary judgment, the appellate court should consider anew the facts and law related to the case and determine whether the trial court was correct.” Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 824, 585 N.E.2d 1164, 1167.

While a plaintiff is not required to prove his case at the summary judgment stage, he must present some evidentiary facts to support the allegations in his complaint. (Gardner v. Navistar International Transportation Corp. (1991), 213 Ill. App. 3d 242, 250, 571 N.E.2d 1107, 1112.) In addition, where a party moving for summary judgment relies on supporting affidavits containing well-pleaded facts, and the party opposing the motion files no counteraffidavits, the material set forth in the movant’s affidavits stand as admitted. (Blankenship v. Dialist International Corp. (1991), 209 Ill. App. 3d 920, 924, 568 N.E.2d 503, 506.) If the opponent of a motion for summary judgment fails to controvert the proofs offered in support of the motion, and the movant’s showing of uncontradicted facts would entitle him to judgment as a matter of law, then summary judgment is proper. Blankenship, 209 Ill. App. 3d at 924, 568 N.E.2d at 506.

Plaintiffs request this court reverse the order granting summary judgment and remand with directions that summary judgment be granted in favor of plaintiffs. However, plaintiffs have not filed a motion for summary judgment. The only questions to be addressed here are whether the facts demonstrate that the officers had probable cause to enforce the ordinance and whether such probable cause is such a defense to civil rights and false arrest actions as to entitle defendants Costello and the City to a judgment as a matter of law.

Section 1983 of the Civil Rights Act states:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.” (42 U.S.C. §1983, at 377-78 (1988).)

Each count of plaintiffs’ complaint alleging a civil rights action recites that it is brought pursuant to both sections 1983 and 1988 of the Civil Rights Act. Section 1988 does provide for the recovery of attorney fees in the event a section 1983 violation is proved. (42 U.S.C. §1988, at 379 (1988); Argento v. Village of Melrose Park (7th Cir. 1988), 838 F.2d 1483, 1499.) However, section 1988 does not create an independent cause of action, and plaintiffs cannot rely on section 1988 as an independent basis for maintaining a civil rights action. 14A C.J.S. Civil Rights §222, at 158-59 (1991).

A notice to appear may be issued by a police officer under circumstances that would authorize the officer to make a warrantless arrest. (Ill. Rev. Stat. 1989, ch. 38, par. 107 — 12.) No issue is raised in this case regarding whether Lappin was in fact arrested. This court need not decide whether the incident in the case was an arrest or a detention which would support claims for false arrest and civil rights violations because we find sufficient probable cause existed for the officers to make a warrantless arrest of Lappin and to close the show based on the facts known to them at that time.

“[F]alse arrest is the unlawful restraint of an individual’s personal liberty.” (Meerbrey v. Marshall Field & Co. (1989), 189 Ill. App. 3d 1085, 1090, 545 N.E.2d 952, 955.) If probable cause existed for the arrest, an action for false arrest cannot lie. The existence of probable cause is a question of law and only becomes a question of fact if the operative facts are in dispute. (Gaszak v. Zayre of Illinois, Inc. (1973), 16 Ill. App. 3d 50, 57, 305 N.E.2d 704, 709.) Probable cause is defined as a state of facts which, if known, would lead a person of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty. (Freides v. Sani-Mode Manufacturing Co. (1965), 33 Ill. 2d 291, 295-96, 211 N.E.2d 286, 288-89.) Not only is the existence of probable cause an absolute bar to a claim of false arrest (Friedman v. Village of Skokie (1985), 763 F.2d 236, 239), but the existence of probable cause to arrest is also an absolute defense to an arrestee’s civil rights action against the police based on fourth and fourteenth amendment violations. (Mosley v. LaMastus (N.D. Ill. 1990), 741 F. Supp. 724, 726.) In Frye v. O’Neill (1988), 166 Ill. App. 3d 963, 979, 520 N.E.2d 1233, 1243, this court stated:

“In defining the concept of probable cause for purposes of section 1983 unlawful arrest actions, Federal courts appear to have imposed a somewhat higher standard of care on law enforcement officials than applies with respect to common law malicious prosecution actions. The quantum of evidence necessary to establish probable cause for an arrest, and thus defeat a section 1983 unlawful arrest claim, is a function of information and exigency. A smaller quantum of evidence is needed to establish probable cause where there is a possibility a suspect may flee, a crime may be repeated, or obtaining further information would interfere with the other duties of a law enforcement officer than is necessary where none of these factors are present. Generally, reasonable avenues of investigation must be pursued. Although the police must be allowed some margin of error, they must utilize the means at hand to minimize the risk of error. BeVier v. Hucal (7th Cir. 1986), 806 F.2d 123.
In Federal civil rights actions, whether there was probable cause for an arrest is a question of fact if there is room for a difference of opinion as to the matter. This is so because the underlying issue is the reasonableness of the defendant’s actions, which in negligence cases, is a classic jury question. Llaguno v. Mingey (7th Cir. 1985), 763 F.2d 1560, cert. dismissed (1986), 478 U.S. 1044, 92 L. Ed. 2d 783, 107 S. Ct. 16.”

Even if an ordinance is later held to be unconstitutional, that fact does not invalidate an arrest based on probable cause to believe the arrestee violated the ordinance. Michigan v. DeFillippo (1979), 443 U.S. 31, 36-38, 61 L. Ed. 2d 343, 349-50, 99 S. Ct. 2627, 2631-32.

This appeal does not involve the construction of an ordinance on which the arrest was based in the formal sense. The police officers were not relying on some legal interpretation of the language employed in the ordinance. Whether Lappin was in fact violating the ordinance was a matter left for the court in the criminal action.

The officers were aware that an itinerant merchant could not sell merchandise within the city limits of Champaign without posting a $1,000 bond. They were also aware that a gun show was taking place in the old Sears building in downtown Champaign. Posters indicated the gun show was to run for two days. Although plaintiffs argue the officers did not know whether Lappin was going to operate in the City for a period longer than 100 days, plaintiffs have not presented by affidavit or otherwise any facts which were known to the police and would contradict the reasonable belief that the show would only operate two days in the City. Upon approaching the building, it was observed that the public was being charged an admission. Costello had been there before and noted price tags on the displayed merchandise. While the officers had not observed any sales being made at the time, it is reasonable to infer that the price tags were placed on merchandise to facilitate the sale of the merchandise. The nature of the merchandise included rifles, pistols, shotguns, ammunition, and knives. Although it may be, as plaintiffs argue, that other items such as books and handicrafts were displayed, the handguns, ammunition, and knives were not perishable, agricultural products. The officers could also reasonably believe that such items were not “vegetables, antiques, knick-knacks, arts and crafts, and similar items [sold] through ‘flea markets,’ ‘farmers markets’ and similar kinds of informal sales organizations.” Lappin admitted he was in charge and had not posted a bond. There is no evidence that the officers were aware of any correspondence or telephone conversations between Lappin and other Champaign city officials prior to the show being opened.

There was probable cause for the officers to arrest Lappin and close the show. The police should not be burdened with the need to make a “legal” interpretation of the words of an ordinance in order to enforce it. Lawyers and judges spend hours or days researching the terms employed. Police officers do not have that luxury. Therefore, it is unpersuasive for plaintiffs to argue that the officers did not possess a precise technical definition of “flea market” or “knickknack.”

Plaintiffs also ask, if corporations can be criminally charged for the same offenses (Ill. Rev. Stat. 1989, ch. 38, par. 5 — 4), why was Lappin charged when he was representing AAA Promotions, Inc., and no charges were made against the corporation. There is no evidence, however, that the officers were aware of the existence of the corporate sponsor of the show. Lappin said he was in charge. Wi-leaver never testified he noticed the name of the corporation on the advertisements. The fact that the corporation was not charged does not affect the probable cause as to Lappin.

Plaintiffs further contend that the fact the charge was amended demonstrates lack of probable cause. It does not. In judging the officer’s actions in making an arrest, the practical considerations of everyday life and the officer’s responsibility to prevent crime, apprehend criminals, and act as quickly as possible in appraising data must be kept in mind. (People v. Stachelek (1986), 145 Ill. App. 3d 391, 399, 495 N.E.2d 984, 989.) While the mere suspicion that an offense is being committed is not sufficient, evidence sufficient to convict is not required. (People v. Sauer (1988), 177 Ill. App. 3d 870, 879, 532 N.E.2d 946, 953.) Even if the ordinance is unconstitutional, as long as it is not grossly or flagrantly so, the arrest is valid if the police relied in good faith on the ordinance. (People v. Dickerson (1984), 129 Ill. App. 3d 59, 62, 471 N.E.2d 1046, 1048.) Nor is the arrest a violation of the arrestee’s constitutional rights because the information upon which the officers relied later turns out to be erroneous (Roddy v. Catto (1986), 143 Ill. App. 3d 176, 185, 491 N.E.2d 961, 966) or the arrestee was not convicted of the charge for which he was arrested. People v. Ambrose (1967), 84 Ill. App. 2d 128, 131, 228 N.E.2d 517, 519.

Plaintiffs also allege violations of rights in addition to those protected by the fourth and fourteenth amendments. Plaintiffs argue the police were without authority to seize property and to order the public to leave the premises. Plaintiffs did not argue that the city was without authority to require that businesses be licensed. Section 25— 86 of the Municipal Code says: “No person shall do business in the City as an itinerant merchant without having obtained a license ***.” (Champaign Municipal Code §25 — 86 (1980).) To get a license, a bond must be posted. No bond was posted. Therefore, plaintiffs could not do business in the City. Clearly, the officers properly shut down the business.

Plaintiffs’ argument that none of the vendors at the show were arrested is also unpersuasive. Lappin was running the show. The others were paying him for the opportunity to display merchandise at the show. The determination by the police officers that Lappin was a culpable or accountable party is reasonable. The facts known to the police at the time would warrant the belief that Lappin was accountable for the criminal actions of the others. (Ill. Rev. Stat. 1989, ch. 38, par. 5 — 2(c).) In the absence of some intelligible equal protection argument, plaintiffs have no standing to complain that the people that were solicited to display at the show were not arrested too.

On appeal, plaintiffs only argue that the arrest of Lappin was unlawful and that the closing of the show deprived plaintiffs of property without due process of law. All other alleged rights violations need not be considered.

If the “property” of which plaintiffs suggest they were deprived is the right to do business in the City, without a license plaintiffs simply do not have such a right. Property interests are not created by the constitution, but by an independent source such as a State law, or local ordinance, or a mutually explicit understanding. (La Salle National Bank & Trust Co. v. City of Chicago (1984), 128 Ill. App. 3d 656, 665, 470 N.E.2d 1239, 1245.) A property interest requires more than an abstract need or desire for a benefit and more than a unilateral expectation of it. There must be a legitimate claim of entitlement to it. (Board of Regents v. Roth (1972), 408 U.S. 564, 577, 33 L. Ed. 2d 548, 561, 92 S. Ct. 2701, 2709.) An ordinance enacted pursuant to the valid police power of the municipality, although it has an impact on property, does not necessarily effect a taking of private property without due process or just compensation. (Rothner v. City of Chicago (1978), 66 Ill. App. 3d 428, 434, 383 N.E.2d 1218, 1222; Greyhound Lines, Inc. v. City of Chicago (1974), 24 Ill. App. 3d 718, 731-32, 321 N.E.2d 293, 305.) When an ordinance provides for the issuance of a license, a party has no due process right to a renewal or issuance of the license. Las Fuentes, Inc. v. City of Chicago (1991), 209 Ill. App. 3d 766, 770, 567 N.E.2d 1093, 1096, appeal denied (1991), 139 Ill. 2d 597, 575 N.E.2d 916.

Plaintiffs here do not argue the subject ordinance requiring itinerant merchants to post a bond in order to obtain a license to be an invalid or unconstitutional exercise of the police authority of the City. Therefore, if the police officers reasonably believed that a violation of the ordinance was occurring, i.e., sales by an itinerant merchant without a license or bond, then certainly the police could take whatever action was reasonably necessary to ensure that the violation of the ordinance did not persist. Under the circumstances, shutting down the gun show was reasonable.

The remaining issue is whether the trial court properly dismissed counts I and V of plaintiffs’ second-amended complaint on the ground that those counts were not timely filed under the appropriate statute of limitations pursuant to section 2 — 619 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619). Defendants Stavins and the City filed a motion to dismiss counts II and V of plaintiffs’ complaint pursuant to section 2 — 619 of the Code. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619.) Section 2 — 619 of the Code allows for the filing of a motion for involuntary dismissal based on defects or defenses enumerated in the statute, including that “the action was not commenced within the time limited by law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(aX5).) If the ground for dismissal is not evident from the face of the pleading, affidavits may be submitted in support of the motion. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a).

“Whenever the granting of a motion to dismiss is reviewed, all well-pleaded facts alleged in the complaint are taken as true, and the test for determining the propriety of granting the motion to dismiss is whether it appears no set of facts may be proved so as to entitle plaintiff to recover from defendant. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 485 N.E.2d 372; Johnston v. City of Bloomington (1979), 77 Ill. 2d 108, 395 N.E.2d 549.) Any allegations which are merely conclusions, unsupported by allegations of specific facts, are not, however, admitted. Howell v. Blecharczyck (1983), 119 Ill. App. 3d 987, 457 N.E.2d 494.” Toys “R” Us, Inc. v. Adelman (1991), 215 Ill. App. 3d 561, 564, 574 N.E.2d 1328, 1330.

In this case, no affidavits were submitted in support of the motion. The first pleading naming Stavins as a defendant was the second-amended complaint filed July 19, 1990. The cause of action arose on February 27, 1988. Plaintiffs do not contest that a two-year statute of limitations applies to section 1983 civil rights actions. Kalimara v. Illinois Department of Corrections (7th Cir. 1989), 879 F.2d 276, 277, citing Owens v. Okure (1989), 488 U.S. 235, 102 L. Ed. 2d 594, 109 S. Ct. 573; Ill. Rev. Stat. 1989, ch. 110, par. 13-202.

It is plaintiffs’ contention that the cause of action pleaded in the second-amended complaint related back to the filing of the first-amended complaint, which had included counts against the City and Funderburg and which was filed on January 4, 1990. Plaintiffs’ theory is that Funderburg and Stavins were sued in their official capacities and, therefore, there is really only one defendant, the City. Defendants attempt to avoid reversal by arguing that section 2 — 616(b) does not apply to this case and that, in any event, the second-amended complaint states a new cause of action and not simply a new theory of liability. It is unnecessary to directly respond to the parties’ arguments in order to affirm the dismissal by the trial court. The judgment of the trial court may be affirmed for reasons appearing of record even though those reasons were not relied on by the trial court. See Frye, 166 Ill. App. 3d at 973, 520 N.E.2d at 1239.

Section 2 — 619(aX9) of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619(aX9)) allows for dismissal for such “other affirmative matter avoiding the legal effect of or defeating the claim.” Since this court upholds the summary judgment as to Costello and the City in the remaining counts, the dismissal of counts II and V is warranted because those counts are based on the allegedly wrongful conduct of Costello at the direction of and under the policy created by the city attorney. If no wrongful acts were in fact done by the police, regardless of the city’s policy, no cause of action for violation of civil rights could be maintained against the City as a matter of law. No injuries are alleged to have occurred to plaintiffs in the absence of the police action, and since the police had probable cause, plaintiffs’ rights simply were not violated.

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

Affirmed.

STEIGMANN and COOK, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREEN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM E. FRIDAY, Defendant-Appellant.
    Fourth District
    No. 4—91—0832
    Opinion filed August 6, 1992.

      Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On October 3, 1991, following a jury trial in the circuit court of Adams County, defendant William E. Friday was convicted of four counts of first degree murder (Ill. Rev. Stat. 1989, ch. 38, pars. 9— l(aXl), (aX2), (aX3)) and one count of attempt (robbery) (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4(a), 18 — 1(a)). He was subsequently sentenced to concurrent terms of 45 years’ imprisonment for one count of murder and five years’ imprisonment for the attempt (robbery) conviction.

On appeal, defendant maintains (1) the trial court abused its discretion in denying his motion for a change of venue based upon adverse pretrial publicity; (2) the trial court erred in precluding him from presenting independent evidence which would establish the bias of the State’s witnesses; (3) defense counsel’s failure to cross-examine occurrence witnesses as to the cause of a fire to establish bias constituted ineffective assistance of counsel; (4) the trial court erred in refusing his instructions on involuntary manslaughter; and (5) the trial court improperly reserved judgment on three counts of murder. We affirm in part and reverse in part.

Defendant was charged with four counts of murder for the beating death of Earl Bundy, Sr., at the home of Carla Williams, and with one count each of attempt (robbery) and unlawful restraint. The unlawful restraint charge was dismissed prior to trial. Johnny Presley was originally charged as a codefendant, but the cases were severed. Following a jury trial, Presley was convicted of murder on July 25, 1991. He was subsequently sentenced to 75 years’ imprisonment.

As the sufficiency of the evidence to support the verdict is not questioned, only a very brief summary of the evidence is necessary for an understanding of the issues. The principal evidence for the prosecution was provided by occurrence witnesses: (1) Connie Manus, a 13 year old, (2) Anthony Black, a 24 year old who had a hearing impairment and had consumed 12 to 18 glasses of beer and some marijuana on the evening of the killing, and (3) Cynthia Gredell. They, together with defendant, Presley, Williams, the decedent Bundy, and others were eventually gathered at Williams’ home on the evening of April 13, 1991.

According to the composite testimony of those three eyewitnesses, the following chain of events occurred: (1) Bundy and Williams went into Williams’ bedroom; (2) Williams lay down on a bed, and Bundy got on top of her attempting to remove her clothing; (3) Presley responded to Williams’ call for help and knocked Bundy backward into a headboard of the bed; (4) Presley continued to hit Bundy on the chin; (5) during the course of this, defendant had entered the bedroom and grabbed Bundy’s wallet; and (6) defendant remained in the bedroom while Presley continued to batter Bundy. According to Gredell, she saw defendant hit Bundy once during the time Presley was attacking Bundy.

According to the witness Black, when he came into the bedroom and told Presley to stop hitting Bundy, two voices told him to leave. Undisputedly, Presley inserted a mop handle into the anus of Bundy. The evidence was undisputed that eventually defendant went with Presley as they removed Bundy’s body from the Williams house, placed it in an automobile, and drove the automobile to the Mississippi River where the automobile was permitted to run into the river with Bundy’s body in it. Sometime that night, after Presley and defendant left Williams’ house with Bundy’s body, the Williams house burned, and Williams and two of her three children died in the fire.

Defendant admitted he had been in Williams’ bedroom while Presley was hitting Bundy, but stated that he stayed because Presley threatened him if he did not do so. Defendant maintained he asked Presley to stop hitting Bundy, but Presley continued. He denied he took Bundy’s wallet but admitted he helped Presley dispose of the body.

At the hearing on defendant’s motion for change of venue, defense counsel presented copies of 25 articles which had appeared in a local newspaper between the time of the offense (April 13, 1991), and the date of defendant’s motion (August 12, 1991). He argued that area radio and television stations had also reported extensively, and in detail, the stories of Earl Bundy’s death, the arrest and trial of the other defendant, and of the fire which destroyed Williams’ house shortly after the beating. He did not offer proof of either the scope or content of the coverage by radio or television or the percentage of the population of the area that was reached or served by either the newspaper, radio or television.

Counsel also presented the results of a poll he conducted of 50 individuals based upon “past jury venires.” The poll indicated (1) 98% of the polled individuals had heard or read of the murder charges pending against defendant and Presley; (2) 86% had heard or read that Bundy was beaten; (3) 50% had heard Bundy was robbed; (4) 88% had heard Bundy was sodomized with a broom handle; (5) 94% had heard he was placed in the trunk of a car that was pushed into the Mississippi River; (6) 72% had heard one of the defendants had already been convicted of the murder; (7) 52% had already formed an opinion or belief that the other defendant was also guilty of murder; and (8) 6% indicated that although they had an opinion or belief as to the guilt or innocence of the untried defendant, they refused to give an answer which might lead to a changed venue. Defense counsel noted that a poll conducted by the State resulted in the State’s conclusion that 33% of the people surveyed could not be fair and impartial in rendering a verdict. No evidence was presented of the scientific accuracy of either survey.

Defendant notes the general population of Adams County is 71,622. The articles defendant has included in the record are all from the Quincy Herald-Whig. Of the 25 articles, three were primarily about codefendant Presley, three made no mention of defendant at all, and one article was about the public defender’s caseload and said only that defense counsel had recently been assigned his first murder case. That article did not mention defendant’s name. One article was about an arson in Hannibal and was apparently included because the victim of that arson was a “foster sister” of Presley. That article also did not mention defendant. Finally, although most of the articles gave some description of the beating, murder, fire or finding the body in the river, only five articles gave specific details of the murder.

Defendant notes two local television stations and area radio stations reported the charges, the evidentiary hearings held prior to trial and all proceedings of Presley’s trial. Defendant maintains the “clear picture” emerging from the publicity is that the community was predisposed as to defendant’s guilt, and it was virtually impossible for him to receive a fair trial.

The instant case is similar to People v. Hines (1988), 165 Ill. App. 3d 289, 518 N.E.2d 1362, decided by this court. There, as here, a murder took place in a somewhat rural area, and the local newspapers and television stations provided extensive coverage. That defendant’s request for change of venue was denied. A public opinion poll conducted in that case indicated that out of 287 people surveyed, 81% knew of the case by name, 73% thought the police had arrested the right people and 64% believed those arrested were guilty. Over half of those polled had heard of the case 25 times or more and could name the people charged with the crimes. This court noted that although some of the news articles relayed emotion-packed stories of the deceased and her family, most dealt only with the factual circumstances surrounding the incident and subsequent trials. This court concluded that the trial court’s denial of defendant’s motion for change of venue did not deprive defendant of a fair trial.

Similarly here, although defendant’s survey showed that a large portion of the 50 people surveyed were familiar with the case, such an awareness or familiarity is not a basis for change of venue, since there is no requirement that jurors be totally ignorant of the case. (People v. Sanchez (1986), 115 Ill. 2d 238, 263, 503 N.E.2d 277, 285; People v. Dall (1991), 207 Ill. App. 3d 508, 529, 565 N.E.2d 1360, 1372.) We cannot say the 25 newspaper articles included in the record and the unknown number of television and radio broadcasts so “saturated” the community that defendant was unable to receive a fair trial. There were no editorials denouncing defendant or calling for his conviction, the articles gave factual descriptions of the crime, the progress in court, and the coverage of Presley’s trial, but they did not give unduly graphic details of the murder.

Defendant contends the trial court denied his motion because it erroneously believed that so long as the jurors could state under oath that they would disregard anything they may have read and lay aside any preconception, and did not state fixed opinions, defendant would receive a fair trial. Defendant also maintains the trial court did not consider the “powerful nature” of the information to which the jurors were exposed. Defendant cites People v. Taylor (1984), 101 Ill. 2d 377, 462 N.E.2d 478, where the jurors learned the defendant had failed a polygraph test, while a codefendant who was released had passed. The supreme court determined that exposure to such highly inflammatory material was enough to disqualify the venire.

Defendant maintains that here the pretrial publicity concerning the beating, sodomizing, and enclosure of the victim in the trunk of his own car, the submerging of that car in the Mississippi River and the destruction of the crime scene by a fire which killed three people, including two small children, had such a great psychological impact on the jurors that they could not be fair and impartial, despite their statements that they could. Defendant notes many potential jurors were discharged because they knew some of the witnesses, the State’s Attorney, or had seen the body being recovered from the river. He further notes that several of the jurors actually impanelled knew witnesses. He concludes the trial court’s denial of his motion for change of venue resulted in an unfair trial.

Here, of the 44 jurors examined, only four were excused for cause on the basis that they had formed an opinion of the case or would have difficulty setting aside what they had read or heard. The defendant used four peremptory challenges to excuse potential jurors who had limited or no knowledge of the case and a fifth challenge to excuse a potential juror who had heard of the case but could not recall what he had heard and said he could set aside what he had heard. The 14 jurors finally selected had all heard or read about the case, but all stated they could set aside what they had heard or read and decide the case based solely on the evidence at trial.

Of the 14 jurors, six, including the two alternates, said they either knew little, knew “bits and pieces” or could not recall in any detail what they had heard or read. Only two jurors said they had read part of an article about the case which appeared the prior weekend, and both said that nothing included in the article would “tip the scale” or make anyone start at a disadvantage. Five jurors had not read the most recent article, and three members of the venire did not subscribe to the Quincy Herald-Whig.

The record demonstrates that, while there was a general awareness of the case in the venire, only four people had formed an opinion about the defendant’s guilt or innocence which they could not set aside, and they were dismissed for cause. Of the 14 jurors selected to hear the case, no one indicated he or she had formed an opinion as to defendant’s guilt or innocence, and all 14 of the jurors said they could set aside anything they had heard about the case in the news media.

A reviewing court must evaluate the voir dire of the jurors in determining whether defendant received a fair trial. (Sanchez, 115 Ill. 2d at 263, 503 N.E.2d at 285.) The record as a whole must establish more than just a potential for bias. In addition, the court may consider that a defendant did not exhaust his peremptory challenges. Dall, 207 Ill. App. 3d at 529, 565 N.E.2d at 1372.

Here, defendant did not exercise all his peremptory challenges and he used four such challenges to excuse potential jurors with little or no knowledge of the case and who stated they could set aside what they had heard. Defendant accepted jurors with greater knowledge or exposure to media coverage, including two who had read part of the most recent article about the case. Although these factors are not conclusive, they tend to rebut an allegation of bias. Sanchez, 115 Ill. 2d at 265, 503 N.E.2d at 286.

Finally, we note the trial court appeared to have taken steps to insure defendant was able to receive a fair and impartial jury. The potential jurors were questioned in panels of four to limit the number of people who might be influenced by any opinions or statements made by other potential jurors, and the trial court stressed that the jurors should be able to set aside anything they had heard or read and decide the case based upon the facts presented in court. The jurors were extensively questioned about the burden of proof, the presumption of innocence and their ability to be fair and impartial.

Defendant relies primarily upon the cases of Rideau v. Louisiana (1963), 373 U.S. 723, 10 L. Ed. 2d 663, 83 S. Ct. 1417, and Coleman v. Kemp (11th Cir. 1985), 778 F.2d 1487, and maintains that even if actual prejudice is not shown, prejudice should be presumed under the circumstances here. The Illinois Supreme Court has never adopted such an analysis of determining whether a change of place of trial is required in a criminal case because of advance publicity. The Rideau court did not set forth such an analysis. There, the community of the trial had witnessed a televised confession by the defendant to the offense. The totality of the prejudice under those circumstances required a change of venue. Coleman is not binding on us and, in any event, the saturation of pretrial publicity was much greater there than that here.

The appropriate analysis for us to make is to consider both the voir dire of the jurors together with the rest of the record to determine whether the court erred in denying a change of venue. (Sanchez, 115 Ill. 2d at 263, 503 N.E.2d at 285; Taylor, 101 Ill. 2d at 390-91, 462 N.E.2d at 487.) Having followed that guideline, we conclude the circuit court did not err in denying defendant’s motion for changing the place of trial.

Defendant next argues he was deprived of a fair trial because the trial court refused to allow defendant to present extrinsic evidence concerning the cause of a fire which had occurred subsequent to the homicide and which destroyed the scene of the crime. Defendant argues he was denied the right to present a defense by the limitation on his presentation of evidence that the occurrence witnesses were biased against him and had started the fire to cover up their own involvement in the beating death of Earl Bundy. Defendant further contends his attorney’s failure to cross-examine the witnesses regarding the origin of the fire constituted ineffective assistance of counsel.

Prior to trial, the State filed a motion in limine seeking to preclude the defense from cross-examining the State’s three occurrence witnesses, Connie Manus, Cindy Gredell, and Tony Black, concerning the origin or cause of the fire at Carla Williams’ house shortly after the murder. Defendant argued that he should be allowed to introduce evidence that the fire killed Carla Williams and two of her three small children, that the three occurrence witnesses allegedly sat on the front porch of the house and did not notice it was engulfed in flames until a four-year-old child in the house screamed, that the fire was determined to be caused by arson, and finally, that the witnesses initially provided false information to fire investigators. The court ruled the defendant could cross-examine the three witnesses as to the origin of the fire, including the possibility that those witnesses had started the fire. The court reserved ruling on the extent to which the defense could present independent evidence of the cause of the fire and ordered that defendant seek leave to introduce any such evidence before presenting the evidence in front of the jury. During trial, the court ruled that independent proof of the cause of the fire was not admissible.

During the presentation of the State’s evidence, Gredell, Black and Manus gave similar accounts of Bundy’s death. Gredell and Black indicated they had spent the evening with defendant, Bundy, Williams, and codefendant Presley at various bars and they all had become intoxicated. All three witnesses described the beating of Bundy which apparently resulted from Bundy’s sexual attack of Carla Williams. The witnesses implicated both defendant and Presley.

Defense counsel did not cross-examine the witnesses as to the cause of the fire. Counsel told the court he wished to present direct evidence as to the multiple points of origin of the fire. He noted the State’s evidence tended to show the only entrance to the house was an open door leading from the front porch into the living room. All three witnesses testified they had been sitting on the porch and did not smell smoke or notice the fire until four-year-old Marcus Williams screamed. When they went into the house it was filled with smoke and flames. Counsel argued it would have been impossible for the fire to have gotten to that point without the witnesses noticing it. He also argued that the four-year-old child told conflicting stories about the origin of the fire, telling the police first that he had started a pillow on fire and later telling his grandmother that Manus or Gredell or both had started the fire.

Counsel sought leave to impeach the three occurrence witnesses’ credibility and to present the theory that they had conspired to incriminate the defendant. He argues the fire’s origin was relevant, because the fire destroyed evidence of the crime, and the witnesses’ reason for testifying falsely was to exculpate themselves regarding Bundy’s death and the deaths of the Williams family. The trial court noted that showing “interest” or “bias” is not impeachment. The court determined the evidence of the cause of the fire was highly speculative and would have required a mini-trial to establish whether it was relevant.

The bias of a witness is always relevant in discrediting a witness and affecting the weight to be given his testimony. (Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105; People v. Davis (1990), 193 Ill. App. 3d 1001, 1004, 550 N.E.2d 677, 679.) The trial court should give the widest latitude to the defense in attempting to establish bias or motive. (People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526.) Nevertheless, a trial court may exercise its discretion in precluding evidence to show bias that is too remote or uncertain. (Davis, 193 Ill. App. 3d at 1004, 550 N.E.2d at 679.) The court’s decision will not be disturbed on review absent a finding of “clear abuse of discretion resulting in manifest prejudice.” Davis, 193 Ill. App. 3d at 1005, 550 N.E.2d at 679.

Here, the trial court determined defendant’s offer of proof did not support a theory of conspiracy either among the three occurrence witnesses or between one or more of them and defendant or Presley. The court noted that no evidence had been presented to support the theory that any of the witnesses had caused the fire. Rather, the court noted, the evidence showed the contrary: the witnesses were all close to the occupants of the house who died in the fire. Manus, the babysitter, had been babysitting for the children for more than a year. Gredell and Black were close personal friends of Carla Williams, and Black risked his life, according to the testimony, to try to save them. The court also noted that Kathleen Gravitt testified Presley and Friday came to her house, located within IV2 blocks of the scene of the fire, between approximately 5:30 or 6 a.m. on the morning of April 14, and it could be argued defendant had been involved in the fire. The court concluded that no one had been charged with setting the fire, and it would be inappropriate to try such a case which was not before the court.

The trial court properly exercised its discretion in precluding defendant from presenting evidence as to the cause of the fire. He made no attempt to present testimony from any individual with direct knowledge of the cause of the fire. In addition, the testimony that the child accused different people of starting the fire at different times was not admissible as a spontaneous declaration, since he had previously given statements to a fireman at the scene and to a police officer indicating he had started the fire. Those earlier reports would destroy the spontaneity of any statement the child made to family members. (People v. Robinson (1978), 73 Ill. 2d 192, 383 N.E.2d 164.) Any inference or proof of bias arising from the allegation the witnesses had started the fire was not direct and was too remote and speculative to be admissible.

Further, defense counsel was not ineffective for failing to cross-examine the witnesses as to the fire’s origin. In order to prove ineffective assistance of counsel, a defendant must show (1) that despite a strong presumption of counsel’s professional competence, counsel’s allegedly unprofessional acts or omissions were so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the sixth amendment; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.

Here, defense counsel chose to forego cross-examination of the witnesses as to the origin of the fire. Questions of trial strategy will not be subject to second-guessing, and reviewing courts are to give trial counsel wide latitude in making tactical decisions. (Strick land, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.) The failure to cross-examine the witnesses as to the cause of the fire did not amount to incompetence. Defendant points to no evidence which would indicate such questioning would be likely to produce evidence which would be helpful to defendant, and cross-examination was unlikely to produce a confession that any of the witnesses started the fire to cover up their own involvement in Bundy’s death. Further, since the pretrial discussion of the admissibility of the evidence concerning the fire’s origin indicated that Manus had stated to police that defendant told Gredell to remove the evidence, the cross-examination of Manus could have been extremely damaging to defendant.

Finally, even if counsel’s failure to cross-examine the witnesses was so serious as to be incompetence of counsel under the constitution, it is unlikely that the alleged error would have affected the outcome of the trial. The jury was aware of the witnesses’ intoxication at the time of the incident, their acquiescence in the beating, Black’s fear of being prosecuted, their failure to report the incident, their unusual behavior in returning to the scene of the incident and sitting on the porch in the early morning hours after the beating, and the fact that the fire started shortly after the murder and destroyed evidence of that crime. Even without direct testimony, the jury could have questioned the witnesses’ credibility.

In addition, the jury had strong evidence of defendant’s involvement in the beating. He admitted he was present; he did not take advantage of numerous opportunities to leave; he did not stop the beating; he obeyed Presley’s instructions to keep everyone out of the bedroom, and he helped to drive the car to the river with Bundy’s body in the trunk. Defendant’s testimony thus corroborated the testimony of the three State’s witnesses regarding the beating. Under these circumstances, and since defendant was tried under an accountability theory of murder, evidence that the witnesses may have started the fire after the murder was unlikely to change the outcome of the trial. Defendant was not deprived of a fair trial by his counsel’s failure to cross-examine the witnesses to show their bias.

Defendant next argues the trial court erred in refusing to instruct the jury on involuntary manslaughter. Defendant maintains the evidence that Bundy had been beaten by a codefendant who was intoxicated is some evidence of recklessness which would entitle him to the instruction. The charges against him alleged defendant beat Bundy and either intended or knowingly caused great bodily harm or death. He was also charged with felony murder based upon the alleged attempt to rob Bundy.

A person acts intentionally when his conscious objective or purpose is to accomplish the result or engage in the conduct proscribed. (Ill. Rev. Stat. 1989, ch. 38, par. 4 — 4.) A person is guilty of involuntary manslaughter if he unintentionally kills an individual without justification and if:

“his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.” Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3(a).

“Recklessness” is defined by section 4 — 6 of the Criminal Code of 1961, which states:

“A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” Ill. Rev. Stat. 1989, ch. 38, par. 4 — 6.

Defendant notes that only “ ‘very slight evidence upon a given theory of a case will justify the giving of an instruction.’ ” (People v. Everette (1990), 141 Ill. 2d 147, 157, 565 N.E.2d 1295, 1299, quoting People v. Bratcher (1976), 63 Ill. 2d 534, 540, 349 N.E.2d 31, 34.) A defendant charged with murder is, however, entitled to an instruction on involuntary manslaughter only where there is evidence before the jury which would reduce the offense from murder to involuntary manslaughter. No instruction on the lesser offense should be given where the evidence clearly shows the homicide was murder. People v. Foster (1987), 119 Ill. 2d 69, 87, 518 N.E.2d 82, 89.

Defendant argues here the involuntary manslaughter defense was supported by the evidence. He maintains the evidence provided as follows: (1) only one of the three occurrence witnesses claimed to see defendant strike the victim; (2) Gredell claimed that defendant used his hand to hit Bundy once; (3) Gredell also testified defendant kicked Bundy once, but she admitted she did not see any foot contact; (4) all the other blows, including the fatal blow to the front of the neck, were inflicted by Presley; (5) there was some evidence defendant told Presley to stop hitting Bundy; and (6) although Presley struck the victim on the back and buttocks with a mop handle, this was not the cause of death and was consistent with recklessness.

Defendant contends the fact that neither defendant nor Presley used a gun or a knife demonstrates a lack of intent to kill. (People v. Deason (1991), 223 Ill. App. 3d 320, 584 N.E.2d 829.) In Deason, this court determined that “beating another person with a baseball bat does not have nearly the evidentiary value of an intent to kill that firing a gun at a person does.” (Deason, 223 Ill. App. 3d at 326-27, 584 N.E.2d at 834.) That court noted a jury could conclude that a beating, even one as severe as was administered there, would not be as certain to cause the death of the victim as would the use of a gun to shoot or a knife to stab him. Finally, defendant notes the victim, two of the witnesses, and both defendant and the codefendant were all intoxicated. He argues this is further evidence of the existence of recklessness in support of involuntary manslaughter.

This case is unlike the factual situation in Deason. There, that defendant and a codefendant went to the victim’s house in the middle of the night to “get[ ] some money.” (Deason, 223 Ill. App. 3d at 322, 584 N.E.2d at 831.) While they were in the house, the codefendant hit the victim one time in the face with a baseball bat. That defendant said she heard something being hit that sounded “ ‘like someone hitting a large bag of fluid.’ ” Deason, 223 Ill. App. 3d at 322, 584 N.E.2d at 831.

Here, defendant’s act of robbery in taking Bundy’s wallet, thus giving rise to the felony-murder conviction, was clearly not done recklessly nor were any acts making defendant guilty by accountability. Presley’s continued beating of Bundy and his use of the mop handle were clearly not done recklessly. Nothing in defendant’s own testimony or arising from the circumstances of the occasion indicates that if defendant struck the blow which Gredell said he did, defendant was merely acting recklessly then. The fact that defendant was likely intoxicated throughout the episode resulting in Bundy’s death did not require the court to give an instruction of the offense of involuntary manslaughter.

As we have indicated, after receiving the verdict, the court ultimately entered judgment on only one of the murder counts, count IV, charging felony murder and reserved the question of entry of judgment as to the other murder counts. The logical reason for the court to attempt to do this was because the judgment on count IV might be set aside on review and the failure to reserve entry of judgment as to the other counts might be held to constitute an acquittal as to those counts. We need not pass upon the effect of this strategy. The State concedes that the reservation of the entry of judgment on the verdict on the other murder counts cannot stand. The case of People v. Guest (1986), 115 Ill. 2d 72, 104, 503 N.E.2d 255, 269, is cited. We agree that the portion of the judgment reserving entry of judgment as to the other murder counts must now be stricken.

Accordingly, we affirm the judgment of conviction and sentence imposed but reverse the portion of the judgment reserving entry of judgment on other counts where guilt of murder was found by the jury. We remand to the circuit court of Adams County for the sole purpose of having the portion of the judgment which is reversed stricken.

Affirmed in part; reversed in part, and remanded with directions.

STEIGMANN and LUND, JJ., concur.


author: JUSTICE KNECHT

text:
    TAMMY ENNEN, Plaintiff-Appellant, v. WES WHITE et al., Defendants-Appellees.
    Fourth District
    No. 4—92—0069
    Opinion filed August 13, 1992.

      Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C., of Alton, for appellant.
    David A. Bloch, of Bernard & Davidson, of Granite City, for appellees.
   JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff Tammy Ennen appeals from the Jersey County circuit court’s dismissal of her four-count complaint against defendants, Wes and Linda White. She argues the trial court erred by concluding her amended complaint failed to state a cause of action under the Animal Control Act (Act) (Ill. Rev. Stat. 1989, ch. 8, par. 366) and by not granting her leave to amend her counts based on common law negligence. We disagree and affirm.

I. Facts

Plaintiff sought compensation for alleged injuries she sustained when defendants’ horse named “Coke” threw her from its back while she was riding the horse and while the horse was on defendants’ property. Her initial complaint was based solely on the Act. In response to defendants’ motion to dismiss for failure to state a cause of action, the trial court granted plaintiff time to amend her complaint. It suggested perhaps the complaint could be repled under a negligence theory. Plaintiff filed her amended complaint in September 1991. It included allegations based on the Act and common law negligence. The pertinent allegations in count I were as follows:

“4. That [in July 1989] the plaintiff was peac[e]ably conducting herself on [defendants’ property] *** where she had a lawful right to be, having come on said property at the invitation of defendant, Wes White.
5. As plaintiff was peac[e]ably conducting herself where she had a lawful right to be, the horse named Coke *** [without provocation, injure[d] the plaintiff by throwing the plaintiff from its back.
6. That a horse is an animal which has a natural propensity to jolt and buck and attempt to throw its rider.
7. That the defendant is charged with knowledge of the natural propensities of animals of a particular class to which animals belong.
8. That the defendant is charged with knowledge of the natural propensity of horses to attempt to throw individuals from their back.”

Counts I and II were alleged against defendant Wes White. Liability under count I was based on section 16 of the Act, which states:

“If a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained.” Ill. Rev. Stat. 1989, ch. 8, par. 366.

Liability under count II was based on common law negligence and repeated the allegations in count I, but added the following claim:

“[T]he defendant failed to exercise a reasonable degree of care to prevent a foreseeable injury, by allowing the plaintiff to ride his horse when he knew or should have known that the plaintiff could be injured.”

Counts III and IV were identical to the preceding two except they were lodged against Linda White. In October 1991, defendants sought dismissal of plaintiffs complaint pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615). At the December 1991 hearing, the trial judge dismissed counts II and IV, the claims based on common law negligence, and took under advisement the additional claims based on the Act. He later dismissed the additional counts against defendants.

II. Animal Control Act

Plaintiff argues her complaint adequately pled the requisite elements to state a claim under the Act. Defendants contend the trial judge correctly concluded the Act is not applicable to plaintiff’s alie-gations. They contend the Act does not apply to injuries sustained when a rider is thrown from a horse. They also argue plaintiff assumed the risk of injury by voluntarily mounting the horse.

Defendants reason that the language “attacks or injures” (emphasis added) should be read as “attacks and injures,” thereby relieving defendants of liability because Coke did not attack plaintiff, but merely bucked as horses naturally do at times. We reject this interpretation of the language of section 16 of the Act. (Ill. Rev. Stat. 1989, ch. 8, par. 366.) We agree with the ruling in Chittum v. Evanston Fuel & Material Co. (1980), 92 Ill. App. 3d 188, 416 N.E.2d 5, that the language should be given its plain and ordinary meaning. A cause of action can exist when an attack or an injury occurs. (Chittum, 92 Ill. App. 3d at 190, 416 N.E.2d at 7; see also McEvoy v. Brown (1958), 17 Ill. App. 2d 470, 477-78, 150 N.E.2d 652, 655.) Plaintiff could benefit from the protections of the Act although Coke did not attack her. Whether protection is afforded her depends on additional factors.

Defendants correctly note the primary purpose of section 16 of the Act was to eliminate the common law requirement that the victim prove the owner knew the animal had a vicious propensity. (Harris v. Walker (1988), 119 Ill. 2d 542, 547, 519 N.E.2d 917, 918-19; Forsyth v. Dugger (1988), 169 Ill. App. 3d 362, 365, 523 N.E.2d 704, 706.) A statute which represents a departure from the common law should be narrowly construed in favor of those against whom it is directed. Harris, 119 Ill. 2d at 547, 519 N.E.2d at 919; In re W.W. (1983), 97 Ill. 2d 53, 57, 454 N.E.2d 207, 209.

No Illinois case has addressed whether a claim exists under the Act when the allegations are based only on a horse’s natural propensity to buck, throwing its rider, and when the rider did not sign an exculpatory agreement. Other cases which have addressed injuries sustained from a horse have considered whether the horse was provoked before the injury was sustained, or whether people who work with or care for horses assume the risk of injury from the horse. See Forsyth, 169 Ill. App. 3d at 364, 523 N.E.2d at 705 (horse provoked when a second person jumped onto it); Chittum, 92 Ill. App. 3d at 190, 416 N.E.2d at 7 (complaint adequately alleged injury sustained from horse absent provocation); Clark v. Rogers (1985), 137 Ill. App. 3d 591, 595, 484 N.E.2d 867, 870 (horse trainer assumed risk of fall); Vanderlei v. Heideman (1980), 83 Ill. App. 3d 158, 163, 403 N.E.2d 756, 759 (horseshoer assumed risk of injury).

In addition, injuries from horses running at large have not been actionable under the Act. (See McQueen v. Erickson (1978), 61 Ill. App. 3d 859, 864, 378 N.E.2d 614, 618.) Injuries are actionable when plaintiff was an innocent bystander when injured. In Moore v. Roberts (1990), 193 Ill. App. 3d 541, 549 N.E.2d 1277, we concluded a bystander adequately stated a cause of action under the Act when she was injured by two horses which broke through a racetrack enclosure and threw their jockeys. (Moore, 193 Ill. App. 3d at 542-43, 549 N.E.2d at 1278.) In that instance plaintiff could not have known of the risk or avoided the injury. Each of these cases is distinct from plaintiffs.

The Act was not designed to protect her from the injuries she incurred after voluntarily mounting Coke. Previous case law supports this conclusion. Plaintiff contends the Illinois Supreme Court’s ruling in Harris is distinct from these facts because the party who was injured while riding a horse had signed a waiver of liability provided by the defendant, an operator of a horse rental business. However, the court’s language is compelling. In Harris the supreme court indicated the intent of section 16 of the Act is:

“[T]o provide coverage under the statute for plaintiffs who, by virtue of their relationship to the owner of the dog or other animal or the lack of any such relationship, may not have any way of knowing or avoiding the risk that the animal poses to them.” Harris, 119 Ill. 2d at 547, 519 N.E.2d at 919.

The court also stated: “We believe that only the most inexperienced of horseback riders would not understand that under certain circumstances a horse may become spooked *** and cause a rider to fall from the horse.” (Harris, 119 Ill. 2d at 549, 519 N.E.2d at 920.) Plaintiff in this case does not characterize herself as inexperienced. She alleged defendants are charged with knowledge of horses’ natural propensity to throw persons from their backs. She does not, however, explain why she, too, should not be charged with the knowledge about horses’ propensity to buck. Her allegations include the observation that horses have a natural tendency to throw riders.

Plaintiff should have recognized her conduct involved a risk, she should have known the qualities and habits of animals, and capacities of things and forces insofar as they are matters of common knowledge in the community. This applies even if she was ignorant of the possibility Coke might throw her. See Restatement (Second) of Torts §290, Comment g, at 50 (1965).

Plaintiff cites Guthrie v. Zielinski (1989), 185 Ill. App. 3d 266, 541 N.E.2d 178, in arguing the doctrine of assumption of the risk does not apply to actions brought under the Act. Guthrie refused to find plaintiff assumed the risk that her parents’ dog would seriously maul her leg when she entered her parents’ home as she customarily did. During prior visits to the home the dog was in a dog-run outside. The day plaintiff was injured, however, the dog was in the home. (Guthrie, 185 Ill. App. 3d at 268, 541 N.E.2d at 179.) The Guthrie court further concluded assumption of the risk should apply only when it is expressly assumed, or when a contractual or employment relationship exists between the parties. Guthrie, 185 Ill. App. 3d at 272, 541 N.E.2d at 181.

However, other courts, including a ruling from this district, have concluded a plaintiff who assumes the risk of injury is not protected by the Act. (Clark, 137 Ill. App. 3d at 595, 484 N.E.2d at 870 (Fourth District Appellate Court holding horse trainer assumed risk of fall); Vanderlei, 83 Ill. App. 3d at 163, 403 N.E.2d at 759 (Second District Appellate Court holding horseshoer assumed risk of injury).) Although these cases represent circumstances in which the plaintiff worked with horses, plaintiff in this case assumed control over Coke by mounting the horse. Where a person accepts responsibility for controlling an animal, he or she cannot recover for injuries sustained when he or she fails to control the animal. Wilcoxen v. Paige (1988), 174 Ill. App. 3d 541, 543, 528 N.E.2d 1104, 1106 (owner of dog boarding and grooming business assumed risk).

There is no legal or policy justification for extending the protections of the Act to a rider of a horse. Once the rider mounts the horse, the rider is no longer a bystander or observer but is someone who has asserted dominion over the animal and is an active partner with the animal in recreational activity. The rider assumes control and responsibility for the horse. While a cause of action may be stated under other theories of liability, there is none under the Act. The trial judge did not err by dismissing plaintiff’s claim founded on section 16 of the Act. Ill. Rev. Stat. 1989, ch. 8, par. 366.

III. Common Law Negligence Claim

Plaintiff contends dismissal of the negligence-based claims in her amended complaint was harsh. She argues she should be provided an opportunity to amend her pleading to properly allege these claims because when the trial judge dismissed her original complaint based only on section 16 of the Act (Ill. Rev. Stat. 1989, ch. 8, par. 366), he suggested she should replead under a negligence theory.

The trial judge did not err by concluding plaintiff’s amended complaint did not state a common law negligence claim against defendants. To recover under the common law negligence theory, plaintiff had to allege the horse was predisposed to commit such an injury and defendants knew of its predisposition. (Forsyth, 169 Ill. App. 3d at 367, 523 N.E.2d at 707, quoting Domm v. Hollenbeck (1913), 259 Ill. 382, 385, 102 N.E. 782, 783; see also Beckert v. Risberg (1965), 33 Ill. 2d 44, 46, 210 N.E.2d 207, 208; Zears v. Davison (1987), 154 Ill. App. 3d 408, 410, 506 N.E.2d 1041, 1042.) She did not allege Coke had a predisposition to injure her which defendants knew about.

Defendants correctly note (1) plaintiff could have included this claim in her first complaint, (2) she had a second opportunity to properly allege a negligence-based claim in her amended complaint, and (3) she did not seek permission to amend the complaint when the trial court dismissed the first-amended complaint.

Because plaintiff did not provide the court with a proposed amendment which properly alleged her claims based on negligence, she waived any potential error by the trial court. See Teter v. Clemens (1986), 112 Ill. 2d 252, 260-61, 492 N.E.2d 1340, 1344; Kennedy v. First National Bank (1990), 194 Ill. App. 3d 1004, 1010-11, 551 N.E.2d 1002, 1006-07.

The trial judge properly dismissed plaintiff’s amended complaint. The Act does not apply under these facts because plaintiff assumed control of the horse by mounting it. Plaintiff thereby assumed the risk she might be injured. In addition, her complaint did not properly allege a common law negligence claim against defendants. Because she failed to seek permission from the trial judge to amend her complaint, she cannot now complain.

Affirmed.

COOK and LUND, JJ., concur.


author: JUSTICE KNECHT JUSTICE STEIGMANN,

text:
      In re MARRIAGE OF FRANK JOHNSON, Petitioner-Appellee, and TERI JOHNSON, Respondent-Appellee (Professional Impressions Media Group, Inc., d/b/a The News-Gazette, Intervenor-Appellant; Beckett, Crewell and Kelso, P.C., Intervenor-Appellee).— FRANK JOHNSON, Plaintiff-Appellee, v. TURNER CONSTRUCTION COMPANY, Defendant-Appellee (Professional Impressions Media Group, Inc., d/b/a The News-Gazette, Intervenor-Appellant; Beckett, Crewell and Kelso, P.C., Intervenor-Appellee).
    Fourth District
    No. 4—92—0133
    Opinion filed August 13, 1992.

      Richard L. Thies, of Webber & Thies, P.C., of Urbana, for appellant.
    Ted Crewell, of Beckett, Crewell & Kelso, P.C., of Urbana, for appellee Beckett, Crewell & Kelso, P.C.
   JUSTICE KNECHT

delivered the opinion of the court:

This appeal raises the issue of the public’s right of access to trial court records and transcripts. The questions presented are whether what goes on in court is the people’s business, and what burden is placed on those who seek to restrict access to public records. Professional Impressions Media Group, Inc., d/b/a the News-Gazette (News-Gazette), appeals the trial court’s orders impounding certain court records and transcripts in Johnson v. Turner Construction Co. (Cir. Ct. Champaign Co.), No. 88 — L—409 (hereinafter the personal injury case), and In re Marriage of Johnson (Cir. Ct. Champaign Co.), No. 88 — C—1019 (hereinafter the dissolution case), and its later orders upholding the impoundments. We reverse.

On April 20, 1988, Frank and Teri Johnson filed a personal injury action against Turner Construction Company as a result of an injury to Frank (the personal injury case). Teri’s loss of consortium claim was voluntarily dismissed, and the case was eventually settled on October 16, 1991. A condition of the settlement was that its terms were to remain confidential. The terms of the settlement were, however, recited to the court, but the actual settlement document did not become part of the court record. The case was then dismissed with prejudice.

On December 27, 1989, in the dissolution case, the court granted Frank and Teri Johnson a dissolution of marriage and reserved ruling on ancillary matters. On May 1, 1990, the court entered judgment as to the ancillary matters. The court found the personal injury claim against Turner Construction was marital property, but since it was then being litigated, it reserved ruling on the distribution of that property until such time as funds were received. On December 3, 1991, the parties in the dissolution case presented a settlement to the court relating to the distribution of the settlement proceeds from the personal injury case. The settlement included a term that all documents in the entire file were to be sealed. After reciting the specifics of the settlement, the court was asked to impound the file. The court approved the settlement and ordered “[t]he court file, all enclosures and exhibits therein [be] impounded, and access thereto [would] be only by permission and order of the court.” The court also entered a docket entry in the personal injury case stating the “settlement agreement of the parties upon their motion and by agreement [was] [t]hereby ordered impounded.”

Following the orders of December 3, 1991, the News-Gazette orally requested the court to grant it access to all materials impounded by the December 3, 1991, orders. The court, on its own motion, set the matter for hearing to show cause on whether the im-poundment order should be continued or vacated.

After hearing the arguments, the court maintained the impoundment in the dissolution case “was an essential part of the settlement *** stemming from the confidentiality and impoundment of the settlement” in the personal injury case. The court maintained the property settlement took into consideration the confidentiality of the personal injury settlement and was also based upon an understanding of the parties that all claims would be settled in the two cases. It asserted it could not “vacate the impoundment without significantly changing the terms of the settlement in [the dissolution case].” The impoundment, however, was narrowed. All materials dated October 16, 1991, and thereafter were impounded by order of the court, and the previous impoundment order impounding materials dated prior to October 16, 1991, was vacated. The court also noted the impoundment order in the personal injury case relating to the settlement and the settlement agreement remained in effect.

On January 27, 1992, the News-Gazette filed a petition to intervene and for application for access to court records, documents, and transcripts in the two cases. The court allowed it to intervene for the limited purpose of determining its right of access to court records, documents and transcripts impounded by the court’s December 3, 1991, orders. The court held a hearing on January 29, 1992, and after reconsidering its prior rulings issued an order upholding the impoundment in the dissolution case on February 6, 1992. It gave no opinion as to the impoundment in the personal injury case because the court was under the impression the News-Gazette was not pursuing a disclosure of the terms of that settlement.

On February 13, 1992, the court entered a corrected order. In its corrected order, the court stated the News-Gazette had not abandoned its petition for disclosure of the settlement agreement in the personal injury case. It explained the impoundment orders implicitly included transcripts of hearings “in connection with the materials impounded because they were inextricable from those materials.” It emphasized no gag order had been issued, and therefore no first amendment issue was present. It further stated the impoundment order in the dissolution case was entered after all parties reached an agreement about pending claims and included in the agreement a request for impoundment. The request was an “integral part of the agreement, which was meant to and did dispose of issues ancillary to the dissolution of the marriage.” The court granted the request and the settlement was executed. Similarly, in the personal injury case, the parties reported a settlement and requested impoundment of the terms of it, which it granted. It noted “[t]he faith of the parties and the attorneys would be broken if now the court took away the impoundment upon which they relied in concluding their settlements.” After reviewing the law, the court, notwithstanding the strong presumption favoring public access to judicial records, found no “legal basis for requiring it to break faith with the parties and the attorneys on their agreements.” The impoundment orders remained in effect and this appeal followed.

The News-Gazette challenges the impoundment orders by asserting a public right of access to the court records and transcripts in the two cases based on the common law, statutory provisions, and the first amendment. It argues the court abused its discretion in refusing to vacate its impoundment orders because the presumption of public access had not been overcome and because the court gave no specific factual findings in support of its order. It also asserts a confidentiality agreement between the parties in the two cases is insufficient to support the impoundment orders. We agree.

I. Common Law

In Nixon v. Warner Communications, Inc. (1978), 435 U.S. 589, 597, 55 L. Ed. 2d 570, 579, 98 S. Ct. 1306, 1312, the Supreme Court recognized a general common law right of access to public records and documents, including judicial records, existed. Under this right, “a presumption in favor of access arises” (Minneapolis Star & Tribune Co. v. Schumacher (Minn. 1986), 392 N.W.2d 197, 202; see also Nixon, 435 U.S. at 602, 55 L. Ed. 2d at 582, 98 S. Ct. at 1314) and establishes, as a general matter, that court files should be open to the public for inspection and copying (United States v. Corbitt (7th Cir. 1989), 879 F.2d 224, 228). Although the common law right of access exists, a court has certain inherent power to control its records, and thus, the right to inspect public records is not absolute. (Deere & Co. v. Finley (1981), 103 Ill. App. 3d 774, 776, 431 N.E.2d 1201, 1203; see also Nixon, 435 U.S. at 598, 55 L. Ed. 2d at 580, 98 S. Ct. at 1312.) This power has been held, in the proper case, to be superior to a public right of access to court records. See, e.g., J F S v. A B M J (1983), 120 Ill. App. 3d 261, 263, 458 N.E.2d 76, 78-79, overruled on other grounds (1989), 127 Ill. 2d 247, 263, 537 N.E.2d 292, 299.

In Illinois, this common law right seems to have been codified in section 16 of the Clerks of the Courts Act, which provides:

“Such other books of record and entry as are provided by law, or may be required in the proper performance of their duties. All records, dockets and books required by law to be kept by such clerks shall be deemed public records, and shall at all times be open to inspection without fee or reward, and all persons shall have free access for inspection and examination to such records, docket and books, and also to all papers on file in the different clerks’ offices and shall have the right to take memoranda and abstracts thereto.” Ill. Rev. Stat. 1989, ch. 25, par. 16(6).

This statute generally grants free access to public records. (Deere, 103 Ill. App. 3d at 776, 431 N.E.2d at 1203.) It “symbolizes the legislature’s determination that the public interest is best served by increasing the public’s knowledge about what is transpiring inside the judicial process.” (Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735, 748, 415 N.E.2d 434, 446.) The existence of this statute permitting access to judicial records does not, however, abrogate the trial court’s inherent power to control its files and to impound any part of a file in a particular case. Deere, 103 Ill. App. 3d at 776, 431 N.E.2d at 1203.

When a party seeks to restrict access to judicial records, the court must balance those interests supporting access, including the “presumption — however gauged — in favor of public access to judicial records” (Nixon, 435 U.S. at 602, 55 L. Ed. 2d at 582, 98 S. Ct. at 1314), against those interests asserted for restricting access. (Minneapolis, 392 N.W.2d at 202-03.) In order to overcome the presumption of access, the moving party bears the burden of establishing a compelling interest why access should be restricted and that the protective order is drafted “in the manner least restrictive of the public’s interest.” (Shenandoah Publishing House, Inc. v. Fanning (1988), 235 Va. 253, 259, 368 S.E.2d 253, 256.) The decision as to access is “left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” (Nixon, 435 U.S. at 599, 55 L. Ed. 2d at 580, 98 S. Ct. at 1312-13.) Appellate review of this determination is limited to whether the trial judge considered relevant factors in making the determination and whether he gave those factors appropriate weight (United States v. Guzzino (7th Cir. 1985), 766 F.2d 302, 304), in short, whether there was an abuse of discretion.

II. First Amendment

The Supreme Court has never explicitly recognized the existence of a first amendment right of access to court records of civil proceedings. It has, however, recognized that implicit in the guarantees of the first amendment is the constitutional right of access to criminal trials (Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 580, 65 L. Ed. 2d 973, 991-92, 100 S. Ct. 2814, 2829 (opinion of Burger, C.J.); Globe Newspaper Co. v. Superior Court (1982), 457 U.S. 596, 603-07, 73 L. Ed. 2d 248, 255-57, 102 S. Ct. 2613, 2618-20) and certain preliminary proceedings in criminal cases (Press-Enterprise Co. v. Superior Court (1984), 464 U.S. 501, 508-10, 78 L. Ed. 2d 629, 637-38, 104 S. Ct. 819, 823-24; Press-Enterprise Co. v. Superior Court (1986), 478 U.S. 1, 10, 92 L. Ed. 2d 1, 11, 106 S. Ct. 2735, 2741). In determining whether the first amendment right of access extends to a particular type of proceeding, the Supreme Court considers “whether the place and process have historically been open to the press and general public” and “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise, 478 U.S. at 8, 92 L. Ed. 2d at 10, 106 S. Ct. at 2740.

Several courts have extended the Supreme Court’s analysis of the constitutional right of access to criminal trials to judicial records of civil cases, and thus have found a constitutional right of access to civil court files based on the first amendment. (See, e.g., Wilson v. American Motors Corp. (11th Cir. 1985), 759 F.2d 1568, 1570-71; In re Continental Illinois Securities Litigation (7th Cir. 1984), 732 F.2d 1302, 1308-09; Brown & Williamson Tobacco Corp. v. Federal Trade Comm’n (6th Cir. 1983), 710 F.2d 1165, 1177-79; Publicker Industries, Inc. v. Cohen (3d Cir. 1984), 733 F.2d 1059, 1067-71; Rushford v. New Yorker Magazine, Inc. (4th Cir. 1988), 846 F.2d 249, 253.) As under the common law standard, a presumption in favor of access exists. (Minneapolis, 392 N.W.2d at 203.) This presumption, along with any other interest asserted in favor of access, are balanced against those interests asserted for denying access. (Minneapolis, 392 N.W.2d at 203; see also Continental, 732 F.2d at 1313-16.) In order to overcome the presumption in favor of access, a party must demonstrate a compelling governmental interest exists, and the restrictions on access are narrowly tailored to meet this governmental interest. (Minneapolis, 392 N.W.2d at 203.) Only then may access be restricted.

III. Analysis

We must first determine whether the right of access, grounded upon either the first amendment or the common law, applies to certain documents. The News-Gazette seeks access to the complete court file, including the settlement agreement and the transcripts of hearings, in the dissolution case, as well as the complete court file, including the transcripts of the parties’ settlement agreement presented in court and the written settlement agreement, in the personal injury case. We hold the right of access extends to the documents filed with the court, including the settlement agreement in the dissolution case. (See generally Continental, 732 F.2d at 1308-09; Corbitt, 879 F.2d at 228; Bank of America National Trust & Savings Association v. Hotel Rittenhouse Associates (3d Cir. 1986), 800 F.2d 339, 345; Shenandoah, 235 Va. at 258, 368 S.E.2d at 255-56; Mokhiber v. Davis (D.C. 1988), 537 A.2d 1100, 1111-13; Federal Trade Comm’n v. Standard Financial Management Corp. (1st Cir. 1987), 830 F.2d 404, 409; contra Minneapolis, 392 N.W.2d at 204-05.) Once documents are filed with the court, they lose their private nature and become part of the court file and “public component^]” of the judicial proceeding (Rittenhouse, 800 F.2d at 343-44) to which the right of access attaches. This right also applies to transcripts of hearings as they are records of trial court proceedings. This right, however, does not extend to the settlement document in the personal injury case because it was never submitted to the court, although the transcript of the hearing at which its terms were recited is subject to the right of access.

The most direct expression of this right of access may be stated this way — the court is a part of government and what goes on in court is the business of the people. Courts function best and most effectively when they are open to the public view. When courts are open, their work is observed and understood, and understanding leads to respect. The file of a court case is a public record to which the people and the press have a right of access.

Since we find the right of access attaches to the documents filed with the court and the transcripts, we turn next to consider whether the judge abused his discretion in denying access to those documents. Once documents are subject to the right of access, only a compelling reason, accompanied by specific factual findings, can justify keeping them from public view. Under either a common law or first amendment analysis, we find the trial court abused its discretion by denying access to the court records and transcripts in the two proceedings. In this case, there is no compelling interest in barring public access to the court files and transcripts. The parties’ desire and agreement that the court records were to be sealed falls far short of outweighing the public’s right of access to the files. We need not discuss what would be sufficient to overcome the presumption of access because it is enough for this case to note the desire of litigants to restrict public access to judicial records is not sufficient to override this presumption. Courts cannot honor such requests without seriously undermining the tradition of an open judicial system. Since no legally sufficient reason for the impoundment of the records has been presented, the entry of the impoundment orders and the court’s refusal to vacate the orders were an abuse of discretion.

The orders of the trial court are reversed.

Reversed.

LUND, J., concurs.

JUSTICE STEIGMANN,

specially concurring:

Although I concur fully with the judgment of the majority, I write specially to emphasize that, in my judgment, this is not a close case. In its opinion, the majority three times indicates that the party seeking to bar access to court records bears the burden of establishing “a compelling interest,” “a compelling governmental interest,” or “a compelling reason” why access should be restricted. (232 Ill. App. 3d at 1072, 1074, 1075.) The court further correctly notes that even when the moving party has met this heavy burden, the trial court should narrowly tailor any restrictions on access to address the identified compelling interest. 232 Ill. App. 3d at 1074.

The present case is not close because the only explanation for closure in the record before us is that the parties (or their attorneys) prefer that the public not be permitted access to these files. Whatever the basis for that preference — facilitating settlement, desire for privacy, possible embarrassment of the parties — such preference can never demonstrate the compelling interest required to overcome the strong presumption in favor of total access to all documents of whatever nature in a court file. The only documents that could meet that “compelling interest” standard are those which are both privileged and potentially seriously damaging or embarrassing to the person holding the privilege. Examples of such documents that might meet this standard of being both privileged and seriously damaging or embarrassing are psychiatric records revealing aberrational behavior or thinking and the treatment thereof, as well as medical records revealing that a particular person has a sexually transmitted disease.

The court’s decision today imposes no undue burden on those litigants who, for whatever reason, wish to keep their personal affairs private. For instance, when a suit for damages is settled, the court does not require a statement as to why and how; instead, the court merely requires an appropriately signed motion to dismiss. The parties to that case are free to make whatever contractual arrangements they wish as part of their settlement agreement and keep it to themselves by simply not making it part of the court record. In the event that a breach of the settlement agreement occurs, then, of course, it must become public. However, such breaches are rare. More importantly, filing the settlement agreement with the court concomitantly with a motion to dismiss does nothing to aid the party alleging breach beyond that which the party can achieve through a properly executed settlement agreement not filed with the court.

Matters publicly testified to (when a transcript of proceedings is or can be made available) and other matters filed with the court become thereby the business of our public system of justice. No litigant, having rendered such matters public, has the right to claim any further privacy interest in them.