author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 51714.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOHN MILLER, Appellee.

      Opinion filed March 21, 1980.

    Rehearing denied May 29, 1980.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackey and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Marcia B. Orr, Myra J. Brown, and Terrence P. Gillespie, Assistant State’s Attorneys, of counsel), for the People.

      James J. Doherty, Public Defender, of Chicago (Donald S. Honchell and John Thomas Moran, Assistant Public Defenders, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Defendant, John Miller, was tried in the circuit court of Cook County in October 1976 on charges of attempted murder and armed robbery. He was acquitted of attempted murder, and a mistrial was declared as to the charge of armed robbery. On retrial of the armed robbery charge, a jury found defendant guilty, and the court sentenced him to a term of imprisonment of four to eight years. In his appeal to the appellate court, defendant argued that evidence of guilt was insufficient; that the circuit court erred in refusing to grant a new trial after having heard the confession of a defense witness, Alfred Myles, which exculpated defendant; and that defendant received ineffective assistance of counsel by virtue of the circuit court’s appointment of an assistant public defender to advise Myles, the defense witness, of his rights when asked potentially incriminating statements by defendant’s attorney, also an assistant public defender. The appellate court addressed only the last argument and agreed with defendant that he received ineffective assistance of counsel, reversing the judgment of conviction and remanding the cause to the circuit court for a new trial. (67 Ill. App. 3d 415.) We allowed the State’s petition for leave to appeal.

Lloyd Dixie testified for the State that he was robbed by three individuals in the early morning of March 5, 1976. According to Dixie, he was approached by two men and a woman at approximately 2:40 a.m. as he walked along the 7300 block on South Phillips in Chicago. The three announced a stickup, knocked Dixie to the ground, and took Dixie’s wallet, $80 and a ring. At trial, Dixie stated that one of the three assailants had a gun, identifying defendant, seated in the courtroom, as that person. Dixie also stated that he heard three shots as the assailants fled.

Following the robbery, Dixie found Chicago police officers Lemont Thompson and Gerald Boone in a patrol car at a nearby intersection. While Dixie was relating the details of the incident to the officers, Dwayne Chapman approached the car and indicated that he had witnessed the robbery. Chapman gave an account of the robbery which was substantially similar to that of Dixie. Chapman also told the officers, and later testified at trial, that the three assailants entered an apartment building at 7350 South Phillips after robbing Dixie and firing three shots at Dixie while fleeing. He also said that he recognized two of the three assailants as residents of apartment 304 in that building.

Officer Thompson also testified on behalf of the State, relating first how he and fellow officer Boone were approached by Dixie and Chapman. Upon being told by Chapman that two of the three assailants lived in apartment 304 at 7350 South Phillips, Thompson proceeded to the building with Boone, Dixie and Chapman. Other officers were summoned and arrived shortly thereafter. Although he heard movement inside, Thompson testified that he was denied admittance for 5 to 10 minutes, at which time the door was opened by a woman who identified herself as Barbara Meyers. Defendant and two other men were found in beds in a rear bedroom. Thompson testified that one of Dixie’s identification cards was found on the ledge of the bedroom window and that more of Dixie’s belongings were found on the ground below the window. The officers also recovered $66 from under the mattress on which defendant was lying.

Following the State’s case in chief, defendant’s attorney, an assistant public defender, indicated that he would call Alfred Myles to the stand. Myles had been recently charged with the robbery of Dixie, and the attorney said that Myles, if called by defendant, would admit his participation in the robbery. Being so informed, the court appointed another assistant public defender to advise Myles of his rights. At the time of trial, Myles was also under indictment for murder and was being represented by the public defender’s office in that case. He had also been represented by the public defender in an earlier case which resulted in conviction. The charge involved in that case is not entirely clear from the record, although Myles later testified in post-trial proceedings that his only prior conviction was for robbery.

The assistant public defender assigned to advise Myles objected to his appointment, requesting the court to appoint counsel other than someone from the public defender’s office and to allow the office to withdraw as counsel in Myles’ pending murder prosecution. The court denied the request, telling the assistant public defender that he found no conflict and “that you as an attorney know what his rights are and that you can properly advise him as to his rights ***.”

After consulting with the assistant assigned to him, Myles refused to testify. Defense counsel requested that Myles take the stand, and the court so ordered. When asked about his knowledge of, and participation in the robbery, Myles invoked the privilege against self-incrimination.

Barbara Meyers and Ray Horton were also called by the defense, and both testified that they were with defendant in apartment 304 from 9 p.m. on the night of the robbery until the police arrived. Meyers further testified that her brothers, Alfred and Eddie Myles, entered the apartment with Felicia Allen at approximately 2 a.m., and both Meyers and Horton testified that Alfred fled through a rear window before the police arrived.

On cross-examination, Meyers stated that defendant was like a brother to her and that she did not want him to go to jail. She also stated that she had not previously told anyone that Alfred had gone out the window and admitted that she had not mentioned this at defendant’s original trial. She also admitted that she had fallen asleep at approximately 10:30 or 10:45 p.m. and did not awake until 3 a.m., except to feed her baby shortly after 2 a.m. Finally, she testified that the $66 found under a mattress in the rear bedroom was hers and was placed there by her.

Eddie Myles also testified on behalf of defendant, stating that he had pleaded guilty to the robbery of Dixie and that he, his brother Alfred and Felicia Allen were the three who committed the robbery. Defendant, he said, was asleep in apartment 304.

On cross-examination, Eddie Myles admitted that he had testified at defendant’s original trial that “an unknown man” was the other male participating in the robbery and that this “unknown man” was the one with the gun. He explained that the “unknown man” to whom he had referred was actually his brother, Alfred, and that his prior testimony was in error.

Finally, defendant himself took the stand and denied participating in the robbery. He testified that he was asleep in apartment 304 at the time and that the Myles brothers entered the bedroom minutes before the police arrived.

Following its deliberations, the jury returned a verdict of guilty, and the court entered judgment thereon. At the sentencing hearing, defendant moved for arrest of judgment and a new trial, offering in support thereof the testimony of Alfred Myles. Myles was again represented by an assistant public defender and was advised of his rights. This time, however, Myles decided to testify, stating that he, his brother and Felicia Allen committed the robbery and that defendant was not involved. When asked about the gun that was used in the robbery, Myles expressed his understanding that no gun was involved. The court denied the motions for arrest of judgment and new trial and sentenced defendant to a term of imprisonment of four to eight years.

The appellate court reversed and remanded for a new trial on the basis of its finding that defendant’s attorney, an assistant public defender, was laboring under a conflict of interest created by the appointment of another assistant public defender to advise the defense witness, Alfred Myles. The appellate court was without the benefit of our recent pronouncements on the subject of conflicts of interest in public defenders’ offices (People v. Walton (1979), 78 Ill. 2d 197; People v. Spicer (1979), 79 Ill. 2d 173; People v. Robinson (1979), 79 Ill. 2d 147), and in applying these cases to the facts now before us, we conclude that the appellate court erred in holding that a conflict of interest is here present.

In our recent cases, beginning with Robinson, we have rejected the notion that a public defender’s office is to be treated as a law firm or an “entity” in considering a conflict of interest claim; the disqualification of one assistant public defender due to a conflict of interest will not necessarily disqualify all members of the public defender’s office. (People v. Robinson (1979), 79 Ill. 2d 147, 158- 59.) Thus, in a given situation, where one assistant may not effectively represent two competing interests, two assistants might be able to do so, and in determining whether separate assistants can properly represent competing interests, we are to apply the general guidelines enunciated in our prior cases and those of the United States Supreme Court on the subject of conflicts of interest. (People v. Robinson (1979), 79 Ill. 2d 147, 159- 60, citing Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457; Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173; People v. Stoval (1968), 40 Ill. 2d 109; People v. Kester (1977), 66 Ill. 2d 162; People v. Berland (1978), 74 Ill. 2d 286; People v. Vriner (1978), 74 Ill. 2d 329.) Rather than applying a per se rule, thereby disqualifying an entire public defender’s office whenever one of its members is confronted with a conflict, a case-by-case inquiry is contemplated whereby it is determined whether any facts peculiar to the case preclude the representation of competing interests by separate members of the public defender’s office. See, e.g., People v. Smith (1967), 37 Ill. 2d 622.

In reviewing the present case in light of the above-mentioned principles, we do not find that defendant was denied effective assistance of counsel. Our conclusion is dictated by our analysis of the attorneys’ respective obligations and the interests they were called upon to represent. Defendant’s attorney and the attorney assigned to the defense witness, Myles, had clearly independent responsibilities; it was the duty of defendant’s attorney to represent defendant and the responsibility of Myles’ attorney to advise him of the implications of confessing in court. As the circuit court noted, the role of Myles’ attorney was limited and did not conflict with that of defense counsel. As we indicated earlier, the circuit court told Myles’ attorney “that you as an attorney know what his rights are and that you can properly advise him as to his rights ***.” Myles’ attorney needed only to advise Myles that any statements could be used against him if he chose to testify.

It is also significant to note that any attorney, whether from the public defender’s office or not, understandably would have advised Myles to invoke the privilege against self-incrimination. On this point, we find Robinson to be controlling. In that case, defendant Nick Freeman and a codefendant were represented by assistant public defenders, and Freeman alleged that improper voir dire examination by the codefendant’s attorney prejudiced prospective jurors against Freeman. We rejected the argument, holding that the questions asked by the codefendant’s attorney did not stem from the fact that both Freeman and the codefendant were represented by assistant public defenders “and may as well have been asked by counsel with no prior association.” (People v. Robinson (1979), 79 Ill. 2d 147, 172.) Similarly, we consider it to be important here that any attorney may well have advised Myles as did the assistant public defender assigned to him.

We also find no indication that defendant’s attorney tempered his representation of defendant’s interests. (People v. Spicer (1979), 79 Ill. 2d 173, 186-87.) In fact, defense counsel insisted on calling Alfred Myles to the stand even after Myles told the court that he would not testify. By forcing Myles to invoke the privilege against self-incrimination in court, the jury could infer that Myles, rather than defendant, committed the robbery. Such vigorous representation by defense counsel belies a claim of ineffective assistance. (People v. Walton (1979), 78 Ill. 2d 197, 202-03.) Finally, defense counsel’s examination of Myles could hardly be labeled “cautious,” as in the cases cited by defendant. (See, e.g., Austin v. Erickson (8th Cir. 1973), 477 F.2d 620, 623-24.) After being ordered to the stand, Myles was asked point-blank questions relating to his whereabouts on the night of the robbery, his participation therein, and his familiarity with defendant. The fact that Myles refused to answer has no bearing on the effectiveness of defense counsel.

Though we acknowledge the principle that prejudice to the defendant is presumed where it is shown that his attorney faces a conflict of interest in representing him (Glasser v. United States (1942), 315 U.S. 60, 75-76, 86 L. Ed. 680, 702, 62 S. Ct. 457, 467; People v. Stoval (1968), 40 Ill. 2d 109, 113), we find no conflict in the situation here present, and on the question of prejudice, we deem it appropriate to note that the defense witness’ invocation of the privilege against self-incrimination may well have benefited defendant by creating the implication that the witness rather than defendant committed the robbery. Indeed, defendant’s counsel asked the jury in closing argument to infer that this was so.

Defendant cites cases from other jurisdictions in support of his argument that he was denied effective assistance of counsel, but we do not find them to be in point. Austin v. Erickson (8th Cir. 1973), 477 F.2d 620, and State v. Belcher (1970), 106 Ariz. 170, 472 P.2d 39, involved representation of codefendants by only one member of a public defender’s office rather than two, as is the case here. Commonwealth v. Westbrook (1979), 484 Pa. 534, 400 A.2d 160, was based on the premise that a public defender’s office is to be treated as a law firm in addressing conflict of interest claims, a premise we expressly refused to accept in Robinson.

The second argument advanced by defendant on appeal is that the circuit court erred in denying his motion for a new trial after hearing Alfred Myles’ testimony that he, rather than defendant, participated in the robbery. We find no ground for reversal in the argument. The circuit court did not abuse its discretion in denying the motion.

A succinct and oft-cited summary of criteria to be considered in reviewing the circuit court’s denial of a motion for a new trial is found in People v. Baker (1959), 16 Ill. 2d 364. The court there said: “A motion for a new trial on the ground of newly discovered evidence is addressed to the discretion of the trial judge and denial thereof will not be disturbed upon review in the absence of a showing of an abuse of discretion. [Citation.] To warrant a new trial, the new evidence must be of such conclusive character that it will probably change the result on retrial, that it must be material to the issue but not merely cumulative, and that it must have been discovered since the trial and be of such character that it could not have been discovered prior to trial by the exercise of due diligence. [Citations.] ” (16 Ill. 2d 364, 373-74.) In an earlier case, the court also held: “Applications for a new trial on the ground of newly discovered evidence are not looked upon with favor by the courts, and in order to prevent, so far as possible, fraud and imposition which defeated parties may be tempted to practice, as a last resort, to escape the consequence of an adverse verdict, such application should always be subjected to the closest scrutiny by the court, and the burden is upon the applicant to rebut the presumption that the verdict is correct and to show there has been no lack of diligence. The matter is largely discretionary with the trial court, and the exercise of its discretion will not be disturbed except in case of manifest abuse.” (People v. Holtzman (1953), 1 Ill. 2d 562, 569; see also People v. Reese (1973), 54 Ill. 2d 51, 59; People ex rel. Walker v. Pate (1973), 53 Ill. 2d 485, 491-94.) Judged by these standards, there was no abuse of discretion. The circuit court could reasonably conclude that Alfred Myles’ testimony was merely cumulative and that it would not have changed the result. Defendant produced four witnesses — himself, Eddie Myles, Barbara Meyers and Ray Horton — who testified that defendant was not involved in the robbery; two of these four witnesses — Eddie Myles and Barbara Meyers — also implicated Alfred Myles in their testimony. Alfred Myles’ testimony would not have added anything new on either point. Alfred Myles’ .testimony, as well as that of the defense witnesses, was also severely contradicted by the testimony of the victim and that of an eyewitness, and his testimony even conflicted with that of the defense witnesses. The defense evidence was that Alfred Myles had wielded the gun during the robbery, but Myles denied any knowledge of a gun being used. Finally, the trial judge in this case had also presided at defendant’s original trial, and he listened as the prosecutor, on cross-examination of the defense witnesses, read their contradictory prior testimony into the record. He saw and heard the witnesses as they changed their testimony from trial to trial, he observed Alfred Myles alternatively refuse and then agree to testify, and he could well conclude that a new trial would serve no useful purpose.

Defendant’s final argument is that the State failed to prove guilt beyond a reasonable doubt. We find no merit to the argument. The State’s evidence was positive, consisting of the accounts of both the victim and an eyewitness, as well as the corroborating testimony of the arresting officer and corroborating physical evidence. Conflicting defense testimony, repeatedly impeached, raised only questions of fact and credibility, questions which are properly left to be resolved by the jury.

The judgment of the appellate court is accordingly reversed, and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    (No. 52221.
    THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner, v. ALVIS RAY LACKEY et al., Respondents.

      Supervisory order entered March 27, 1980.

      William J. Scott, Attorney General, of Springfield, and William D. Kelley, State’s Attorney, of Vandalia (Raymond F. Buckley, Jr., and Gillum Ferguson, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    Joe Dees, of Vandalia, for respondents.
   PER CURIAM:

The motion by petitioner for vacation of the order entered October 2, 1979, is allowed. That order is vacated and the following order is entered:

The appeal in this case was from an order of the circuit court of Fayette County terminating parental rights and appointing a guardian with power to consent to adoption. The parents were represented by an assistant public defender, and the public defender himself represented the minor as guardian ad litem. The public defender recommended termination of parental rights and the appointment of a guardian with power to consent to adoption, a position clearly in conflict with the interest of the parents, who were represented by his assistant.

Unlike most criminal cases, there is no constitutional right to counsel in this case. (In re Adoption of Hoffman (1975), 61 Ill. 2d 569, 579-80, cert. denied (1976), 425 U.S. 958, 48 L. Ed. 2d 202, 96 S. Ct. 1738.) There is, however, express provision for the appointment of “the Public Defender or such other counsel as the case may require” when requested by an indigent party. (Ill. Rev. Stat. 1977, ch. 37, par. 701 — 20(1).) In determining whether, in a given situation, members of the public defender’s staff can properly represent conflicting interests, the guidelines in prior cases must be applied. (See People v. Robinson (1979), 79 Ill. 2d 147.) Where a conflict of interest between multiple parties clearly appears and separate members of a public defender’s staff cannot effectively represent all, other counsel must be appointed. (Cf. People v. Miller (1980), 79 Ill. 2d 454.) That rule is applicable in a case such as this, where the interests of the parents and the minor may be diametrically opposed. The conflict is apparent on the face of the record, and while the appellate court has written too broadly (Robinson) in suggesting the existence of a per se conflict where assistant public defenders represent differing interests, it did correctly hold that reversible error occurred here. In the exercise of this court’s supervisory jurisdiction, the judgment of the Appellate Court for the Fifth District (71 Ill. App. 3d 705) is affirmed.

Order vacated; judgment affirmed.


text:
    (No. 53124.
    WILLIAM J. BOWE, Appellee, v. CHICAGO ELECTORAL BOARD et al., Appellants.

      Opinion filed March 12, 1980.

    Rehearing denied May 29, 1980.

    Michael L. Levinson, of Chicago, for appellant Chicago Board of Election Commissioners.
    Andrew M. Raucci and Michael P. McClelland, of Chicago, for appellant Timothy J. Fitzgerald.
    Charles M. Biggam, Jr., and David W. Andich, of Chicago (Biggam, Cowan & Funding, of counsel), for appellee.
   PER CURIAM:

The issue in this case is the right of the plaintiff, William J. Bowe, to have his name printed on the ballot as a candidate for Democratic ward committeeman of the 43rd ward of the city of Chicago. The defendant electoral board (the Board) ruled against plaintiff, holding that certain sheets in his binder of petitions did not comply with statutory requirements, reducing the number of valid signatures below the legal minimum. The circuit court of Cook County affirmed the order of the Board, and the Appellate Court, First District, with one justice dissenting, reversed the judgment of the circuit court. (81 Ill. App. 3d 146.) We granted leave to appeal and, because of the imminence of the primary election and the need for a prompt decision, ordered an expedited briefing schedule and took the case under advisement without oral argument.

The decisive issue is the interpretation of section 7 — 10 of the Election Code (Ill. Rev. Stat. 1977, ch. 46, par. 7 — 10). The pertinent portion of the section provides as follows:

“At the bottom of each sheet of such petition shall be added a statement signed by an adult resident of the political division for which the candidate is seeking a nomination, stating his residence address ***, certifying that the signatures on that sheet of the petition were signed in his presence, and are genuine, and that to the best of his knowledge and belief the persons so signing were at the time of signing the petitions qualified voters of the political party for which a nomination is sought. Such statement shall be sworn to before some officer authorized to administer oaths in this State.”

The requirements of this section are mandatory and not directory. [Lawlor v. Municipal Officer Electoral Board (1975), 28 Ill. App. 3d 823.) The undisputed evidence before the Board here showed that a person who had circulated petitions had not personally appeared before the notary public who acknowledged his signature. The statute requires that the circulator swear to the petition before an officer authorized to administer oaths. The Appellate Court, Fourth District, has held that the failure of the circulator to personally appear before the notary public invalidates the petition. [Williams v. Butler (1976), 35 Ill. App. 3d 532.) In our opinion this is a correct interpretation of the statute. The decision of the Board and the order of the circuit court were therefore correct, and the appellate court erred in reversing the order of the circuit court. The judgment of the Appellate Court, First District, is reversed, and the order of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.


text:
    (No. 53173.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. KENNETH ALLEN, Appellant.

      Order entered March 13, 1980.

    No appearances.
   PER CURIAM:

It has come to the attention of this court that Kenneth Allen, a person who has been sentenced to death by the circuit court of Cook County following his plea of'guilty to two counts of murder, has expressed a desire that his execution take place upon the date fixed by the circuit court. He has purportedly stated that he does not wish to appeal his conviction and sentence. An appeal from a conviction and sentence of death is automatic, without the necessity of any action by the defendant or his counsel. (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(i); 73 Ill. 2d R. 606(a).)

On the court’s own motion, the State Appellate Defender is appointed counsel for defendant for the purpose of an appeal of the conviction and sentence. The circuit court of Cook County is directed to permit the late filing of a motion to withdraw the plea of guilty.

Order entered.


text:
    (No. 52378.
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent, v. RICHARD DALE DAVIS, Petitioner.

      Order entered January 29, 1980.

      Carpel & Bourey, of Decatur, for petitioner.
    No appearance for the People.
   PER CURIAM:

In this case, after counsel for the defendant had completed his services in the Appellate Court for the Fourth District, the appellate court appointed him as counsel for the defendant for the purpose of an appeal to the supreme court. Counsel filed a motion in the appellate court requesting fees for services rendered in connection with the preparation and filing of a petition for leave to appeal. The motion was transferred to this court. Appointment of counsel for such purpose is not required, and this court has uniformly denied such requests. The appellate court’s appointment order was an abuse of its discretion, and the motion by Ronald L. Carpel that an order be entered allowing attorney fees for services in connection with the petition for leave to appeal is denied.

Motion denied.


text:
    (No. 53093.
    CHARLOTTE ROBERTSON, Petitioner, v. DAVID R. BABB, Judge, Respondent.

      Supervisory order entered March 26, 1980.

      Victor, LaFayette & Russell, of Rockford, for petitioner.
    No appearance for respondent.
   PER CURIAM:

The motion by plaintiff for leave to file a petition for an original writ of mandamus is denied. The respondent, a circuit judge of the 17th judicial circuit, denied a motion for substitution of judges in a criminal case pending in Boone County. The basis for the denial was that the motion was not timely filed under the provisions of section 114 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 114 — 5(a)). The motion was filed 13 days after defendant’s initial appearance in court on the criminal complaint. The judge would not accept defendant’s plea at that time, stating that it was premature, and a preliminary hearing was scheduled for 13 days later. At that time defendant waived preliminary hearing and filed the motion for substitution of judge. The motion was filed within 10 days after the cause had been placed on the trial call of the judge. In the exercise of this court’s supervisory jurisdiction, the respondent, the Honorable David R. Babb, judge of the 17th judicial circuit, is ordered to grant the motion for substitution of judges in cause No. 79 — CF—95.

Motion denied; supervisory order entered.


author: MR. JUSTICE RYAN

text:
    (No. 51940.
    BRUNSWICK CORPORATION, Appellee, v. OUTBOARD MARINE CORPORATION et al., Appellants.

      Opinion filed March 21, 1980.

    Rehearing denied May 29, 1980.

      Robert E. Clemency, of Milwaukee, and Louis W. Brydges, of Waukegan (Michael, Best & Friedrich and Brydges, Riseborough, Morris, Franke & Miller, of counsel), for appellant.
    Robert L. Stem, Erwin C. Heininger, William Thomas Braithwaite and Judith M. Janssen, of Chicago (Mayer, Brown & Platt, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Plaintiff, Brunswick Corporation, brought an action to enjoin former employee Ronald R. Anderson from disclosing alleged trade secrets and to enjoin Outboard Marine Corporation (OMC), Anderson’s current employer, from utilizing alleged trade secrets already obtained or obtained through Anderson. On November 14, 1977, the trial court granted the defendant’s motion for summary judgment. The appellate court reversed the judgment of the trial court. (69 Ill. App. 3d 106.) We granted defendant’s petition for leave to appeal. The primary issue is whether the owner of a trade secret loses the right to injunctive relief when a defendant acquires the secret illegally but voluntarily abstains from using it for a period in excess of the time it could be developed independently.

OMC and the plaintiff’s Mercury Division compete in the manufacturing and sale of outboard motors, and in outboard motor boat racing. The parties use the results of the races in their advertising to promote the sale of their commercial engines. Anderson was employed as a research and development engineer by Mercury from August 12, 1971, through November 30, 1976. In 1972 or 1973, Mercury engineers conceived the idea of installing a mechanical fuel injection system manufactured by Bendix Corporation on Mercury’s 6-cylinder T-3 outboard racing engine. Mercury began racing with this system in the fall of 1973 after investing an undetermined amount of time and money into the system. The system proved to be a success, and Mercury won numerous races while employing this system. Mercury attempted to keep the adaptation of the Bendix fuel-injection system secret. Anderson worked on the development and refinement of this system during his employment with the plaintiff.

In January 1975, Cees Van der Velden, a race driver for Mercury, became employed by OMC. During this employment, he made disclosures to engineers and officers of OMC concerning Mercury’s adaptation of the Bendix fuel-injection system and made a sketch of its adaptation. Mercury did not learn of these disclosures at this time. In December 1976, Anderson left Mercury and commenced working for OMC. After the plaintiff learned that Anderson had ordered a fuel-injection system from Bendix of the type they employed, the plaintiff instituted this suit in May 1977.

The trial court found the time required to successfully install a Bendix mechanical-fuel-injection system on an outboard engine for use in competitive boat racing would be, from conception to project completion, anywhere from 8 to 12 months. It also found that if OMC had tried to install a Bendix fuel-injection system on its racing engines, using the Van der Velden disclosures, it could have successfully completed the project by not later than November 30, 1976. In granting defendant’s motion for summary judgment the trial court relied upon Northern Petrochemical Co. v. Tomlinson (7th Cir. 1973), 484 F.2d 1057. In Northern, a diversity case governed by Illinois law, the Federal court interpreted ILG Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, and Schulenburg v. Signatrol, Inc. (1965), 33 Ill. 2d 379, as holding that an abstention by a thief from the use of a trade secret, for a period in which it could have been developed lawfully, prevented the victim from enjoining the use at a later time. Thus, the trial court determined this action was barred.

The appellate court examined the Northern opinion and concluded that the Federal court of appeals misconstrued Illinois law. We do not find the holding in Northern to be helpful in this case. Also, ILG Industries and Schulenburg, while helpful, are also not in point.

In Schulenburg and ILG, the length of the injunction was held to be, where ascertainable, the period of time necessary for the defendant to copy or develop the trade secret by lawful means. In all three of these cases the trade secret had been incorporated in a product which was available to the general public. These items could have been acquired by anyone and the trade secret discovered through the process of reverse engineering.

The judicial application of trade secret law has advanced two doctrinal bases for trade secret protection: (1) encouragement of invention and (2) maintenance of commercial morality. (See Johnson, Remedies in Trade Secret Litigation, 72 Nw. U.L. Rev. 1004 (1978).) In Kewanee Oil Co. v. Bicron Corp. (1974), 416 U.S. 470, 481, 40 L. Ed. 2d 315, 325, 94 S. Ct. 1879, 1886, the Supreme Court stated: “The maintenance of standards of commercial ethics and the encouragement of invention are the broadly stated policies behind trade secret law.” Actually, a third element enters into the shaping of the remedy, that is, a public interest in having free competition in the sale and manufacture of goods not protected by a valid patent. (See Stern, A Reexamination of Preemption of State Trade Secret Law After Kewanee, 42 Geo. Wash. L. Rev. 927, 978 (1974).) Thus, although ILG Industries and Schulenburg stated the general principles concerning injunctive relief for trade secret violations, the exact nature and duration of the remedy must be tailored to fit the facts of the particular case. In ILG Industries this court, although defining the duration of the injunction as above stated, nonetheless held that the 18-month injunction period ran from July 31, 1969, the date of the injunction order, and not the date that the trade secrets were wrongfully acquired. (After checking the record in ILG Industries it is apparent that there is a typographical error in the opinion of the case on page 90 of 49 Ill. 2d. The date of the termination, of Scott’s employment as reflected by the record was December 31, 1968, and not December 31, 1969, as stated in the opinion (49 Ill. 2d 88, 90)).

In applying the three doctrinal bases to the facts of a case, one must consider that a permanent injunction, while punishing the wrongdoer, thereby promoting commercial morality, would, if the secret were lawfully discoverable, give to the plaintiff a windfall protection and would subvert the public interest in fostering competition and in allowing employees to make full use of their knowledge and ability. If no injunctive relief is granted, the faithless employee and wrongdoing competitor would be unpunished and would retain the benefit of a head start advantage over legitimate competitors. The innovator of the trade secret would also be afforded no protection. By enjoining the use of wrongfully acquired trade secrets for the approximate length of time it would require a legitimate competitor to develop a competitive product following a lawful disclosure of the information, the wrongdoer is deprived of any advantage from his wrongdoing, the developer of the trade secret is placed in the same position it would have occupied if the breach of confidence had not occurred, and the minimum restraint consistent with the other objectives would be placed upon competitors and the utilization of the competitors’ and the employees’ skills. See Winston Research Corp. v. Minnesota Mining & Manufacturing Co. (9th Cir. 1965), 350 F.2d 134, 142.

In our case there was no finding by the court that there was ever a lawful disclosure of the trade secret. The court found that it would take one year to reproduce this engine through the process of reverse engineering. This it considered to be the length of time that the defendant could be required to abstain from production. The court measured this period of time from the disclosure of the trade secret by Van der Velden and concluded that since the defendant had abstained from producing the engine longer than the time it would take to develop it, the plaintiff was not entitled to an injunction. However, the disclosure by Van der Velden is conceded to have been tortious. The plaintiff’s racing engine is not sold to the general public, and the record does not indicate that there has been any lawful disclosure of the trade secret from which this information could be discovered through reverse engineering or otherwise. Furthermore, the 1-year period the trial court found as the time it would take to reproduce the trade secret comes from an affidavit of a vice-president of the company stating that it would take from 8 to 12 months at a minimum from conception to completion for a competitor to develop an engine using the Bendix fuel-injection system. This statement, however, appears to have been made in connection with the previous paragraph in the affidavit which referred to developing the system from photographs or sketches of the Mercury engine and through reverse engineering from such sketches or photographs. There appears to be no evidence in the record as to how long it would take to reproduce plaintiff’s trade secret absent the tortious disclosure of the information. The facts actually involved in this case can be fully developed when the case is heard on its merits on retrial and the appropriate relief, if any, fashioned from the principles of trade secret law reviewed in this opinion.

We hold that the trial court erred in granting summary judgment in favor of the defendants. The judgment of the appellate court is therefore affirmed, and the cause is remanded to the circuit court of Lake County for further proceedings in accordance with this opinion.

Affirmed and remanded.


author: MR. JUSTICE UNDERWOOD

text:
    (Nos. 52164, 52184, 52233 cons.
    GLEN E. MILLER, Appellant, v. THE COUNTY OF LAKE et al., Appellees.—THE PEOPLE ex rel. DENNIS P. RYAN, Appellee and Cross-Appellant, v. WHEELING TRUST & SAVINGS BANK et al., Appellants and Cross-Appellees.

      Opinion filed March 28, 1980.

    Rehearing denied May 29, 1980.

      MORAN, J., took no part.
    Wasneski, Kuseski, Flanigan & Dixon, of Waukegan (Alfred W. Lewis, of counsel), for appellant Glen E. Miller.
    Crowley, Barrett & Karaba, of Chicago (Edward W. Barrett and Frank A. Karaba, of counsel), for appellant and cross-appellee Wheeling Trust & Savings Bank.
    Dennis P. Ryan, State’s Attorney, of Waukegan (Marc P. Seidler and William J. Blumethal, Assistant State’s Attorneys, of counsel), for appellees.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

The apparently undisputed facts in this case are that plaintiff Glenn E. Miller took office as a member of the county board of Lake County (the board) on December 2, 1974. He owned between 1% and 2% of the capital stock of the Wheeling Trust & Savings Bank (the bank) and served as one of its directors. Also, he served as president of the Wheeling Safety Deposit Building Corporation, a subsidiary of the bank. During the period relevant to this litigation the county treasurer of Lake County repeatedly requested the county board, pursuant to the provisions of the County Funds Depository Act (Ill. Rev. Stat. 1975, ch. 36, par. 17 et seq.), to designate the Wheeling bank, among many others, as an approved depository for the funds under the treasurer’s control. The board did so. With one exception, plaintiff participated in those board votes. In addition he voted against amendments designed to remove the bank as an approved depository. Following adoption at an August 1975 board meeting of an amendment eliminating the Wheeling bank from the list of approved depositories, plaintiff apparently moved at the September meeting to reconsider the August action and the bank was reinstated on the approved list by a one-vote margin. It is alleged in an admitted allegation that “[t] his same procedure was employed at the January and February, 1976 ***” board meetings.

The Wheeling bank, while located in Cook County, is near the Lake County line and had been used as an approved depository for Lake County funds for some years before, plaintiff was elected to the Lake County board. Although apparently no reference was made to plaintiff’s interest in the bank during the depository-designating proceedings, plaintiff’s stock in the bank was listed in his disclosure statements filed with the Lake County clerk. It seems to be agreed that all banks in Lake County and some in the surrounding counties were regularly designated as approved depositories. It is also undisputed that the amounts of Lake County funds on deposit in the Wheeling bank decreased after plaintiff’s election, and that the rates paid the county by the bank were competitive and in some instances higher than the rates paid by other banks. It is not contended that plaintiff had attempted to persuade the Lake County treasurer to place funds in the Wheeling bank.

The State’s Attorney of Lake County, apparently responding to an inquiry from a board member, issued a formal opinion indicating that plaintiff’s conduct constituted a violation of section 3 of what was then the Corrupt Practices Act (Ill. Rev. Stat. 1975, ch. 102, par. 3). He had also indicated an intention to institute a criminal prosecution against plaintiff and a civil action against the bank.

On July 13, 1977, plaintiff filed a complaint for a declaratory judgment and injunctive relief naming the County of Lake, the State’s Attorney, and the Wheeling bank as defendants. Alleging the existence of an actual controversy, plaintiff sought a declaratory judgment that his conduct did not violate the Corrupt Practices Act, and that the deposit contracts between the bank and the county treasurer were valid; he also sought an injunction restraining the State’s Attorney from instituting either criminal or civil action against plaintiff or the bank.

One week later the State’s Attorney filed a complaint alleging plaintiff’s stock ownership, his participation in the proceedings designating the Wheeling bank as an approved depository, and that the deposit contracts were void. An accounting by the bank was sought for the profits earned on the Lake County deposits in excess of the interest paid the county. During the period in question those deposits aggregated some $26 million. The maximum on deposit at any one time approximated $2 million, and the maturities ranged from 2 to 90 days. Plaintiff, the county treasurer and the bank were named as defendants.

The State’s Attorney first answered and then moved to dismiss plaintiff’s complaint, and the bank and county treasurer moved to dismiss the State’s Attorney’s complaint. Plaintiff moved for summary judgment on his complaint. The trial court consolidated the actions and found in a memorandum opinion that there was an actual controversy, no issue of fact, and that plaintiff’s participation in the board action designating the bank as a depository did not violate the Corrupt Practices Act. Concluding that the contracts were valid, the trial judge granted plaintiff’s motion for summary judgment and allowed the motions to dismiss the State’s Attorney’s complaint.

On appeal the appellate court affirmed the existence of an actual controversy but reversed and remanded for an evidentiary hearing to determine whether the board designation of depositories was a “perfunctory act” and “likely to remain so in the future.” (71 Ill. App. 3d 478, 484.) If the trial court so found, section 3 was to be declared inapplicable and the contracts valid. If, however, the designation were found to be other than “purely perfunctory,” the Act was to be applied, the contracts held void and an accounting ordered. The refusal of the appellate court to adopt a per se rule was in part due to its belief that county boards in some counties traditionally approved all banks suggested by the treasurer, never suggesting change. In such circumstances, that court reasoned, section 3 was not violated by a shareholder board member’s participation.

The existence of an actual controversy is again questioned here. Contending that plaintiff’s action for a declaratory judgment and injunction seeks only judicial examination of an opinion issued by the State’s Attorney and of past conduct, the State’s Attorney argues that no actual controversy is present.

In explaining what is contemplated by the requirement of an “actual controversy” in our declaratory judgment statute (Ill. Rev. Stat. 1975, ch. 110, par. 57.1), this court has stated:

“ ‘ “Actual” in this context does not mean that a wrong must have been committed and injury inflicted. Rather, it requires a showing that the underlying facts and issues of the case are not moot or premature, so as to require the court to pass judgment on mere abstract propositions of law, render an advisory opinion, or give legal advice as to future events. [Citations.] The case must, therefore, present a concrete dispute admitting of an immediate and definitive determination of the parties’ rights, the resolution of which will aid in the termination of the controversy or some part thereof. [Citations.]’” [Howlett v. Scott (1977), 69 Ill. 2d 135, 141-42; quoting, Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 375.)

We have concluded, in other words, that the “ ‘actual controversy’ requirement is meant merely to distinguish justiciable issues from abstract or hypothetical disputes and is not intended to prevent resolution of concrete disputes admitting of a definitive and immediate determination of the rights of the parties.” Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 452, citing A. S. & W. Club v. Drobnick (1962), 26 Ill. 2d 521, 524.

In our view, plaintiff’s action presents such a concrete dispute and is distinguishable from the actions dismissed in Howlett and Fitzgerald v. County of Kane (1974), 58 Ill. 2d 112. In Fitzgerald an action for declaratory judgment by a county treasurer sought invalidation of contracts of deposit made with certain banks in which particular members of the county board allegedly owned shares of stock. Because of the apparent availability of other banks designated as county depositories and since the banks whose deposits were challenged had not been joined as defendants, this court held that the county treasurer sought only an advisory opinion.

The suit for declaratory judgment in Howlett was based on an investigative report by an assistant to his supervisor without any indication by the supervisor as to the course of action he intended to take. This court ruled that the action had been brought prematurely and that any judgment entered would have been at best an advisory opinion. It was further held that the termination of the relationship forming the basis of the suit rendered recourse through the declaratory judgment statute inappropriate since it was not designed to provide mere declarations of nonliability for past conduct. See Howlett v. Scott (1977), 69 Ill. 2d 135, 143; see also Cunningham, Brothers, Inc. v. Bail (7th Cir. 1969), 407 F.2d 1165, 1169, cert. denied (1969), 395 U.S. 959, 23 L. Ed. 2d 745, 89 S. Ct. 2100; Hanes Corp. v. Millard (D.C. Cir. 1976), 531 F.2d 585.

The circumstances involved in the present action are entirely distinguishable. The State’s Attorney, as the county’s chief prosecuting authority, issued a formal written opinion indicating plaintiff’s conduct contravened section 3 of the Corrupt Practices Act. Fie also informed plaintiff’s counsel of his intention to institute civil proceedings for an accounting against the bank and to prosecute plaintiff for his alleged violation of section 3. These circumstances, together with the continuation of the relationship forming the basis of the suit, convince us that an actual controversy exists and that the motion to dismiss the complaint was properly denied.

Whether the contracts of deposit entered into between the county treasurer and the bank are void as a result of plaintiff’s participation in the county board action designating the bank as a qualified depository depends upon the interpretation of section 3 of the Corrupt Practices Act. That section then provided:

“No person holding any office, either by election or appointment under the laws or constitution of this state, may be in any manner interested, either directly or indirectly, in his own name or in the name of any other person, association, trust or corporation, in any contract or the performance of any work in the making or letting of which such officer may be called upon to act or vote. No such officer may represent, either as agent or otherwise, any person, association, trust or corporation, with respect to any application or bid for any contract or work in regard to which such officer may be called upon to vote. Nor may any such officer take or receive, or offer to take or receive, either directly or indirectly, any money or other thing of value as a gift or bribe or means of influencing his vote or action in his official character. Any contract made and procured in violation hereof is void.” (Ill. Rev. Stat. 1975, ch. 102, par. 3.)

It is conceded that certain amendments to the Act, which became effective on October 1, 1977, and which provided special exculpatory procedures for members of governing bodies with less than 5% (now 714%) of the total ownership interest in approved depositories, are not relevant to the contracts of deposit here under examination.

Plaintiff and the bank argue that in voting to include the bank on the list of approved depositories of county funds, plaintiff, as a stockholder and director of one bank, did not “act or vote” with respect to the prospective contracts of deposit. Board approval, however, occurs only if and when requested by the county treasurer, and the deposit of funds by a county treasurer in banks designated as depositories by the county board relieves him of responsibility for the funds while they are so deposited. (Ill. Rev. Stat. 1975, ch. 36, pars. 20, 34; Fitzgerald v. County of Kane (1974), 58 Ill. 2d 112, 116.) While a county treasurer “has the sole and complete responsibility to decide in which bank, if any, he will deposit public funds which are in his custody” (Fitzgerald v. County of Kane (1974), 58 Ill. 2d 112, 115-16, citing People ex rel. Nelson v. West Englewood Trust & Savings Bank (1933), 353 Ill. 451), the fact that the statute relieves him of responsibility for deposits in board-approved depositories is a persuasive, if not a compelling, incentive for a county treasurer to deposit funds only in such banks. Realistically viewed, county treasurers are not ordinarily going to deposit funds under their control in unapproved institutions. Consequently, prior board approval of a bank becomes an integral factor in any deposit contract between that bank and the treasurer.

The statutory prohibition in section 3 could scarcely be broader. It prohibits a public officer from being “in any manner interested *** in any contract *** in the making or letting of which such officer may be called upon to act or vote.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 102, par. 3.) In Brown v. Kirk (1976), 64 Ill. 2d 144, 151, this court reversed an unduly narrow reading of section 3 by the appellate court, and observed: “Like most other conflict of interest provisions, it is aimed not only at the actual bad faith abuse of power for an officer’s own personal benefit, but is also designed to prevent the creation of relationships which carry in them the potential of such abuse, by removing the possibility of temptation.” Again, in People v. Savaiano (1976), 66 Ill. 2d 7, 15, this court construed section 3 as barring an official not only “from having a private interest in situations in which a binding contract exists but also from allowing himself to be placed in a situation where he may be called upon to act or vote in the making of a contract in which he has an interest. The evil exists because the official is able to influence the process of forming a contract.”

It might appropriately be questioned whether the sweeping prohibitions of section 3, combined with the severity of the potential penalty for its violation, were not destined to be counterproductive, but the wisdom of, or necessity for, those provisions is not our concern. Competent individuals owning insignificant amounts of stock in business entities could well be deterred from public service by the possibility that their mere presence upon a county board or city council might expose them to the possibility of prosecution. Whether for this reason or some other, the General Assembly concluded that modification was necessary and amended the statute to exempt those situations in which the interest owned was less than 5% (now 7½%). But even under the amended statute the interested member must disclose his interest and abstain from voting on the contract.

It is undisputed that plaintiff, a shareholder and director of the Wheeling bank, as well as a member of the county board, voted to designate the bank as a depository of county funds; he twice voted against amendments eliminating the bank from the list of approved depositories, and, after the board’s approval of those amendments, he introduced a motion to reconsider which carried by one vote. Because that designation was, in reality, essential to the bank’s receipt of county funds, we are constrained to hold that plaintiff’s supportive conduct while he was interested in that bank, at least as its shareholder and director, violated the broad statutory proscription of section 3. Accordingly, under the express language of that section the contracts of deposit are void.

The bank argues that it should not be subjected to an accounting of the profits from the void contracts, primarily because section 3 did not explicitly provide for such a civil remedy and since the bank allegedly did not engage in any wilful misconduct. That the Act did not specifically authorize an accounting has not prevented this court from ordering such a remedy to permit the recovery of benefits acquired through contracts invalidated by operation of section 3. (Peabody v. Sanitary District (1928), 330 Ill. 250, 264.) The applicability of section 3, moreover, has not been contingent upon a showing of intentional wrongdoing or bad-faith dealing by the public officer or corporation in which he holds a proscribed interest. (See Brown v. Kirk (1976), 64 Ill. 2d 144, 151; People ex rel. Pearsall v. Sperry (1924), 314 Ill. 205, 209-10; see also United States v. Mississippi Valley Generating Co. (1961), 364 U.S. 520, 549-50, 5 L. Ed. 2d 268, 288, 81 S. Ct. 294, 309; Stigall v. City of Taft (1962), 58 Cal. 2d 565, 569-71, 375 P.2d 289, 291-92, 25 Cal. Rptr. 441, 443-44.) We accordingly hold that the county is entitled to an accounting for profits earned by the bank on the void contracts of deposit.

The judgment of the appellate court is affirmed in part and reversed in part, and the cause is remanded to the circuit court of Lake County for further proceedings consistent with the views herein expressed.

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

MR. JUSTICE MORAN took no part in the consideration or decision of this case.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 52362.
    MICHAELANGELO J. PALELLA et al., Appellants, v. LEYDEN FAMILY SERVICE & MENTAL HEALTH CENTER et al., Appellees.

      Opinion filed March 28, 1980.

    Rehearing denied May 29, 1980.

      A. E. Botti and John N. Pieper, of Wheaton, for appellants.
    Matthew J. Piers and David C. Thomas, of Chicago, for appellees.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiffs, all of whom are residents of the village of Villa Park, brought this action in the circuit court of Du Page County seeking to enjoin the operation of a “non-medical detoxification center” in Villa Park by defendants, Leyden Family Service & Mental Health Center (Leyden), West Suburban Detoxification Center (WSDC), Donald Goncher and Acre View, Inc., and seeking a writ of mandamus to compel the village of Villa Park, the village president and manager to comply with the governing ordinance and hold a public hearing on whether to permit the detoxification center. The circuit court entered an order enjoining the use of the property in question as a detoxification center and denied plaintiffs’ prayer for mandamus. The circuit court awarded plaintiffs’ attorney’s fees to be paid by the village but denied plaintiffs’ request that attorney’s fees be assessed against Leyden and WSDC. Pursuant to a stipulation between plaintiffs and the village, the order awarding attorney’s fees was vacated and the village was dismissed from the cause with prejudice. Defendants Leyden and WSDC appealed from the judgment ordering the injunction, and plaintiffs appealed from the order denying attorney’s fees. The appellate court reversed the injunction (73 Ill. App. 3d 134) and did not reach the issue of attorney’s fees. We allowed plaintiffs’ petition for leave to appeal. The facts are adequately set forth in the appellate court opinion and will be stated here only to the extent necessary to discuss the issues.

Acre View, the premises involved in this controversy, was annexed to the village of Villa Park in 1967. On November 6, 1967, in accordance with a preannexation agreement, and pursuant to its zoning ordinance (No. 861, later amended by No. 1195), which required action by the board of trustees on applications for special use permits, the defendant village adopted an ordinance (No. 1019) granting a special use permit for use of the premises as a nursing and convalescent home. The ordinance provides in part:

“2. This special use permit is hereby granted under the provisions of Village Ordinance No. 861, Section 25 — 10, A(h). The petitioners shall be permitted to operate a private nursing and convalescent home on the premises herein described. Said nursing and convalescent home shall not be converted to a hospital, nor to an institution for the care of the insane or feeble minded, but shall continue to operate under a special use permit under the same or similar conditions to those existing at the time of the annexation of said Acre View Nursing Home and located on the premises.
3. The term of this special use permit shall be for as long a period of time as the property is being used for present nursing home and convalescent purposes and shall expire upon a termination of the use of the property or any portion thereof for such purposes.”

Included in the special uses enumerated in Ordinance No. 861 were “hospitals or sanitariums” and “institutions for the care of the insane or feeble-minded.”

In 1978, Donald Goncher, the administrator of Acre View, sought the opinion of the village officials as to whether a day-care center for older adults was a permitted use within the terms of the special use permit. The village manager responded by letter that the “conversion of Acre View from a nursing home operation to an Adult Day Care Center appears to be within the scope of your special use permit and in accordance with the definitions set forth in our Village ordinance No. 1195 [the general zoning ordinance] .” After commencing to operate Acre View as an adult day-care center, Goncher was approached by defendant Leyden, a not-for-profit, publicly funded organization, about the possibility of using a portion of Acre View as a nonmedical detoxification center, to be known as West Suburban Detoxification Center. Such a facility would use various nonmedical means to treat voluntary admittees for a period of up to five days for intoxication and alcoholism. One of the two buildings on the property was leased to Leyden.

Goncher testified that an attorney for WSDC contacted the village authorities to determine whether the intended use was permitted. The matter was referred to the village attorney and was considered at a regular meeting of the village board of trustees held on June 26, 1978. The minutes of the meeting reflect the village attorney’s opinion:

“Attorney Paris reviewed Ordinance No. 1019 regarding the Special Use for Acre View Nursing Home. He advised that it is his legal opinion that the detoxification center does come under the purview of the Ordinance.”

A number of residents of the village addressed the board, both for and against the proposed detoxification center. However, no formal board action was taken with regard to the proposed use. The minutes contain this final reference to the matter:

“Attorney Paris to investigate whether the Nursing Home license had been suspended or whether Special Use Ordinance is still in effect.”

Plaintiffs, all of whom live within 1,200 feet of Acre View, based their complaint for injunction and mandamus on section 11 — 13—15 of the Illinois Municipal Code (Ill. Rev. Stat. 1977, ch. 24, par. 11 — 13—15), which provides:

“Sec. 11 — 13—15. In case any building or structure, including fixtures, is constructed, reconstructed, altered, repaired, converted, or maintained, or any building or structure, including fixtures, or land, is used in violation of an ordinance or ordinances adopted under Division 13, 31 or 31.1 of the Illinois Municipal Code, or of any ordinance or other regulation made under the authority conferred thereby, the proper local authorities of the municipality, or any owner or tenant of real property, within 1200 feet in any direction of the property on which the building or structure in question is located who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding (1) to prevent the unlawful construction, reconstruction, alteration, repair, conversion, maintenance, or use, (2) to prevent the occupancy of the building, structure, or land, (3) to prevent any illegal act, conduct, business, or use in or about the premises, or (4) to restrain, correct, or abate the violation. When any such action is instituted by an owner or tenant, notice of such action shall be served upon the municipality at the time suit is begun, by serving a copy of the complaint on the chief executive officer of the municipality, no such action may be maintained until such notice has been given.
In any action or proceeding for a purpose mentioned in this section, the court with jurisdiction of such action or proceeding has the power and in its discretion may issue a restraining order, or a preliminary injunction, as well as a permanent injunction, upon such terms and under such conditions as will do justice and enforce the purposes set forth above.
If an owner or tenant files suit hereunder and the court finds that the defendant has engaged in any of the foregoing prohibited activities, then the court shall allow the plaintiff a reasonable sum of money for the services of the plaintiff’s attorney. This allowance shall be a part of the costs of the litigation assessed against the defendant, and may be recovered as such.
An owner or tenant need not prove any specific, special or unique damages to himself or his property or any adverse effect upon his property from the alleged violation in order to maintain a suit under the foregoing provisions.”

Following a hearing the circuit court found that the defendant village had taken no action with respect to the disputed use, that the opinion of the village attorney was not the act of the village, and that the action of the defendants Leyden, WSDC, Goncher and Acre View, Inc., were undertaken without objection or interference from the village. The court further found “that there is no similarity between the operation of the facility as a convalescent or nursing home under the permitted special use permit and the operation of a detoxification center.” It ordered that an injunction issue enjoining defendants from using the premises “as an alcoholic detoxification center and further from accepting patients or clients at said premises excepting that said defendants shall have first applied to the defendant Village of Villa Park, a municipal corporation, and been granted as provided by ordinance and law, a special use permit or other official enactment for the operation of such alcoholic detoxification center.” It denied plaintiff’s prayer for mandamus and awarded plaintiff attorney’s fees to be paid by the village in the amount of $4,707.50.

Subsequently, on stipulation of the parties, the order awarding attorney’s fees was vacated and the village was dismissed as a party defendant.

We consider first plaintiff’s contention that the appellate court decision “is premised in part upon an erroneous interpretation and extension of the home rule powers granted to municipalities by article VII, section 6 of the Illinois Constitution of 1970.” The appellate court, after noting the trial court’s characterization of the village’s part in this dispute as mere “non-action,” said: “We think it fair to say then that the village did make a decision ***.” (73 Ill. App. 3d 134, 140.) In determining how much weight to give the “decision” of the village authorities to permit operation of the detoxification center, the appellate court said:

“[I]n dealing with a situation which is so peculiarly susceptible to the exercise of home-rule powers as a zoning matter is and particularly in dealing with a zoning problem which has no precedent because it involves a use which is new, experimental and not contemplated at the time of the zoning code’s enactment, the interpretation of the legislative body’s challenged ordinance should carry a great deal of weight.
While, therefore, the court has the final determination and can override the legislative body’s interpretation if it is necessary to do so in order to serve justice and uphold the law, yet we think, especially in the case of a home-rule municipality’s zoning ordinance, the error should be clear and the injustice substantial, before the legislative interpretation is overthrown by issuance of an injunction. We do not regard this as such an open and shut case.” 73 Ill. App. 3d 134, 141.

We find it unnecessary to decide whether the defendant village made a legislative determination sufficient to constitute an exercise of the home rule power under section 6, article VII, of the Constitution of 1970. (See Gilligan v. Korzen (1974), 56 Ill. 2d 387, 390.) Nor need we determine whether the village did “make a decision” to allow the detoxification center or the precise weight to be accorded such a “decision.” Assuming, arguendo, that the village affirmatively exercised some aspect of its home rule power and that it construed its special use ordinance as permitting the detoxification center, nevertheless, such action would not be controlling. A legislative body, including the board of trustees of a home rule village, is without power to say how the judiciary shall construe a legislative enactment. (See People v. Crawford Distributing Co. (1972), 53 Ill. 2d 332, 338.) In our view, the ordinance in question clearly does not permit the operation of defendants’ detoxification center, and any construction by the village to the contrary is not persuasive.

The special use ordinance permits only the operation of “a private nursing and convalescent home” on the premises. It prohibits converting the nursing home to a hospital or “institution for the care of the insane or feeble-minded.” It provides for continued operations “under the same or similar conditions to those existing at the time of annexation ***.” Finally, and unequivocally, the ordinance specifies that the term of the special use permit “shall be for as long a period of time as the property is being used for present nursing home and convalescent purposes; and shall expire upon a termination of the use of the property or any portion thereof for such purposes.”

In Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510, 520, this court, in stating the rule applicable to the construction of zoning ordinances, said:

“Effect should be given to the intention of the drafters by concentrating on the terminology, its goals and purposes, ‘the natural import of the words used in common and accepted usage, the setting in which they are employed, and the general structure of the ordinance. [Citation.] ”

The special use ordinance shows the intent to restrict the permissible uses of the premises to those which existed at the time of annexation. That portion of the property devoted to the nonmedical detoxification center has ceased to be used for “nursing home and convalescent purposes.” We are not persuaded, as was the appellate court, that because “the fundamental objective in both cases [nursing home and detoxification center] is the rehabilitation of a sick human being in mind and body or both” (73 Ill. App. 3d 134, 142), the newer use is permitted. The ordinance focuses on “termination” of use as a nursing and convalescent home. As the circuit court said in its order, “it is clear that there is no similarity between the operation of the facility as a convalescent or nursing home under the permitted special use permit and the operation of a detoxification center.” Use as a nursing and convalescent home has terminated and, accordingly, the trial court was correct in entering the order enjoining a violation of the ordinance.

Citing Meyer v. Marshall (1976), 62 Ill. 2d 435, plaintiffs contend that “the allowance of attorneys fees to plaintiffs who are successful in an action under section 11 — 13—15 is mandatory based on a finding that the defendants have engaged in prohibited activity.”

In Meyer the trial court granted the plaintiffs a permanent injunction based on section 11 — 13—15 and taxed costs and attorney’s fees against the defendants. The appellate court held that the issue of the propriety of the injunction had become moot, that the injunction nevertheless was improperly issued and that the plaintiffs were not entitled to costs and fees. After noting that a 1969 amendment (1969 Ill. Laws 1236) to section 11 — 13—15 made the allowance of attorney’s fees mandatory rather than discretionary, this court held that the appellate court erroneously inquired into the propriety of the injunction and erroneously set aside the award of costs and attorney’s fees. (62 Ill. 2d 435, 439, 442.) The circuit court determined that the operation of a detoxification center was not within the scope of the special use permit granted by the ordinance in question here. In such circumstances, the taxing of attorney’s fees was mandatory against the defendants who have engaged in the “prohibited activity.”

Defendants contend that “plaintiffs now seek to get from Defendants-Appellants the fees which they gave up from the Village.” We note that.there is no indication and no finding that the village engaged in any of the prohibited activities set out in section 11 — 13—15. Defendants also argue that it would be inequitable to award attorney’s fees since they acted in good-faith reliance on the village’s decision. Section 11 — 13—15 permits an action either by the “proper local authorities” of a municipality or by any owner or tenant who lives within 1,200 feet. This provision clearly contemplates an action by owners or tenants when the municipality has not enforced its ordinances. We hold that proof of reliance on a municipality’s ordinance-enforcement posture does not obviate the mandatory provision for attorney’s fees contained in the section.

Defendants contend that because the circuit court did not assess costs the provision of section 11 — 13—15 that “This [attorney’s fees] allowance shall be a part of the costs of the litigation assessed against defendant, and may be recovered as such,” precludes the award of attorney’s fees. They argue that because plaintiffs did not appeal from the circuit court’s decision not to award costs, the question of attorney’s fees is not before this court. We do not agree. Because the circuit court ruled on multiple counts, the assessment of costs was discretionary (Ill. Rev. Stat. 1977, ch. 33, par. 12), but the award of attorney’s fees was mandatory. Meyer v. Marshall (1976), 62 Ill. 2d 435, 441-42.

For the reasons stated the judgment of the appellate court is reversed and the cause is remanded to the circuit court of Du Page County to determine the amount of a reasonable fee for the services of plaintiffs’ attorney in obtaining the order of injunction against defendants, Leyden Family Service & Mental Health Center, West Suburban Detoxification Center, Donald J. Goncher and Acre View, Inc.

Appellate court reversed; cause remanded, with directions.


text:
    (No. 52288.
    WEST SIDE ORGANIZATION HEALTH SERVICES CORPORATION et al., Appellees, v. JAMES THOMPSON, Governor, et al., Appellants.

      Opinion filed March 21, 1980.

    Rehearing denied May 29, 1980.

    William J. Scott, Attorney General, of Springfield (Gary L. Starkman, Special Assistant Attorney General, of counsel), for appellants.
    Ronald Barliant and James A. Carney, of Devoe, Shadur 8c Krupp, of Chicago, for appellees.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

This is a class action which was brought in the circuit court of Cook County to compel officials of the executive branch of the State government to expend funds appropriated by the General Assembly for the use of the Dangerous Drugs Commission (DDC). One of the representative plaintiffs is the West Side Organization Health Services Corporation (WSO), an Illinois not-for-profit corporation which operates a drug-rehabilitation program that receives State funding. The defendants, all of whom are sued in their official capacities, include Governor James Thompson and various State officials.

In their amended complaint, plaintiffs allege that on July 9, 1976, the General Assembly passed a bill which included an appropriation of $3,545,000 to be used by DDC during fiscal year 1977 “For Purchase of Drug Abuse Treatment Services: Payable from General Revenue Fund.” By exercising his veto powers on July 9, then Governor Daniel Walker reduced that line item by $100,000 to a total of $3,445,000. On December 15, however, the General Assembly overrode the veto, thereby restoring the amount of the line-item appropriation to $3,545,000. Citing State budgetary reasons, Governor Thompson subsequently directed the Bureau of the Budget to withhold $100,000 of the funds appropriated for use by DDC.

Plaintiff WSO’s standing to challenge this action arises, if at all, from its contract with DDC for the Department’s purchase of drug-treatment services which was allegedly reduced by the withheld amount. In view of the result we reach, however, it is unnecessary to consider the standing issue.

Plaintiffs sought declaratory and injunctive relief, as well as writs of mandamus and prohibition, to prohibit the concerned State officials from interfering in the allotment or expenditure by DDC of the full $3,545,000 appropriated by the General Assembly, and to compel DDC to expend the disputed $100,000 for the purchase of drug-abuse treatment services from WSO or similar organizations. Plaintiffs also requested temproary injunctive relief to prevent transfer of the disputed $100,000 into the State’s general revenue fund, and to compel placement of the $100,000 in a separate account pending the outcome of this litigation. To prevent expiration of the appropriation on June 30, 1977, plaintiffs filed a motion for injunctive relief to compel placement of the disputed $100,000 within the custody of the court. That motion was denied, and the trial court subsequently granted defendants’ motion to dismiss the complaint.

After filing a notice of appeal plaintiffs moved the appellate court to place the $100,000 within its custody in order to prevent the lapse of those funds into the State’s general revenue fund. That motion was denied, as was defendants’ motion to dismiss which alleged that the cause was moot since the disputed funds had lapsed on September 30. The appellate court reversed (73 Ill. App. 3d 179), finding the Governor was without authority to withhold the appropriated funds.

The lapse of funds appropriated by the General Assembly is mandated by the following:

“All appropriations shall be available for expenditure for the fiscal year or for a lesser period if the Act making that appropriation so specifies. A deficiency or emergency appropriation shall be available for expenditure only through June 30 of the year when the Act making that appropriation is enacted unless that Act otherwise provides.
Outstanding liabilities as of June 30, payable from appropriations which have otherwise expired, may be paid out of the expiring appropriations during the three-month period ending at the close of business on September 30.” (Ill. Rev. Stat. 1977, ch. 127, par. 161.)

The 1870 Illinois Constitution similarly provided that all appropriations were to lapse upon the expiration of the first fiscal quarter following adjournment of the regular session. With respect to the absence of this specific requirement in the 1970 Illinois Constitution, the Committee on Revenue and Finance of the Sixth Illinois Constitutional Convention observed:

“The requirement that appropriations lapse at the end of ‘such fiscal quarter’ has been implemented by statute to provide that the power to incur obligations lapses on June 30 of the biennium, but authority to pay continues until the end of the next fiscal quarter (September 30). This prevents continuing appropriations, People ex rel. Millner v. Russel, 311 Ill. 96 (1924), and prohibits payments after the end of the three month lapse period, People ex rel. Polen v. Hoehler, 405 Ill. 322 (1950). However, a person who through no fault of his own fails to receive compensation in full may be paid through the Court of Claims.” (7 Record of Proceedings, Sixth Illinois Constitutional Convention 2027.)

This commentary, in our view, represents a clear affirmation by those delegates principally concerned with State finance operations under the 1970 Illinois Constitution of the mandatory lapse of unspent appropriations and the prohibition of payments after the termination of the three-month period following adjournment of each fiscal year. Under the circumstances here involved, the disputed $100,000 lapsed by operation of statute September 30, 1977, thereby preventing the issuance of mandamus to compel expenditure of the expired appropriations. (People ex rel. Polen v. Hoehler (1950), 405 Ill. 322, 330, citing People ex rel. Redman v. Board of Trustees (1918), 283 Ill. 494, and People ex rel. Downs v. Brown (1917), 281 Ill. 390.) The disputed $100,000 would accordingly be unavailable to satisfy plaintiffs’ claims even if they were to prevail on the merits.

Despite this lapse of funds, however, plaintiffs assert that their claim is not moot primarily because there is an actual controversy between the parties, there is substantial public interest in a resolution of the dispute, and there is a likelihood of future recurrence of the question here raised. Plaintiffs also contend that this court could award equitable relief notwithstanding the lapse statute.

This court, however, has repeatedly held that where no actual rights or interests of the parties remain or where events occur which render it impossible for the reviewing court to grant effectual relief to either party, the issues raised by the litigation should not be resolved merely to establish a precedent or to govern potential future cases. See Bluthardt v. Breslin (1979), 74 Ill. 2d 246, 250-51; People ex rel. Tucker v. Kotsos (1977), 68 Ill. 2d 88, 93; People v. McCullum (1977), 66 Ill. 2d 306, 316; Wheeler v. Aetna Casualty & Surety Co. (1974), 57 Ill. 2d 184, 189-90; People ex rel. Newdelman v. Weaver (1972), 50 Ill. 2d 237, 241; In re Orr (1967), 38 Ill. 2d 417, 426; cert. denied (1968), 391 U.S. 924, 20 L. Ed. 2d 663, 88 S. Ct. 1821; La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 378-79; see also, Meyer v. Marshall (1976), 62 Ill. 2d 435, 441; Dee-El Garage, Inc. v. Korzen (1972), 53 Ill. 2d 1, 11.

The circumstances involved in Breslin are particularly apposite here. After being unseated by the Illinois House of Representatives for failure to meet the two-year residency requirement in the 1970 Illinois Constitution (Ill. Const. 1970, art. IV, sec. 2(c)), the defendant was appointed pursuant to section 25 — 6 of the Election Code (Ill. Rev. Stat. 1975, ch. 46, par. 25 — 6) to fill the vacancy which resulted from her removal. The trial court found the statutory method of appointment unconstitutional and, accordingly, enjoined the defendant from acting as a member of the 80th General Assembly. When the case was on appeal before this court, however, the 80th General Assembly had dissolved and the 81st General Assembly had convened with the defendant as a newly-elected member. In view of those events, we held: “If it becomes apparent that an opinion on a question of law cannot affect the result as to the parties or controversy in the case before it, the court should not resolve the question merely for the sake of setting a precedent to govern potential future cases.” (Breslin, at 251, citing La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 379; Tuttle v. Gunderson (1930), 341 Ill. 36, 45-46.) While appeal was pending before the appellate court in the present controversy, the contested appropriation lapsed according to the statutory mandate (Ill. Rev. Stat. 1977, ch. 127, par. 161). In view of the unavailability of the funds necessary for the granting of effectual relief to the parties here involved, the appellate court erred in refusing to dismiss the appeal as moot.

The judgment of the appellate court is accordingly reversed, and judgment of the circuit court dismissing the complaint is affirmed.

Appellate court reversed; circuit court affirmed.