author: JUSTICE BILANDIC

text:
    HELEN ROSTEN, Indiv. and as Special Adm’r of the Estate of Victor Rosten, Deceased, Plaintiff-Appellant, v. ST. ANNE’S HOSPITAL et al., Defendants-Appellees (Dr. Thomas J. Moore, Defendant).
    First District (2nd Division)
    No. 83—3048
    Opinion filed April 23, 1985.

      Paul R. O’Malley and Thomas D. Nissen, both of Chicago, for appellant.
    Stanley J. Davidson, E. Michael Kelly, Debra S. Puchowitz, and Robert Marc Chemers, all of Pretzel & Stouffer, Chartered, of Chicago, for appellees.
   JUSTICE BILANDIC

delivered the opinion of the court:

Helen Kosten, plaintiff-appellant, filed a medical malpractice suit against the defendants after her husband died while he was a patient at St. Anne’s Hospital. The defendants-appellees, St. Anne’s Hospital, Dr. Shoai and Dr. Sung, moved for summary judgment principally based on the deposition of their expert witness, Dr. Peter Rosen. The appellant filed a response to the motion that contained an affidavit by Dr. Jack Morgan, but the trial court struck the affidavit as being legally insufficient. As a result, the court found that there was no issue of material fact and granted the defendants’ motion for summary judgment. The court also denied Kosten’s motion to vacate the judgment. This appeal followed.

The issues before this court are: (1) whether the trial court erred in granting the defendants’ motion for summary judgment; and (2) whether the trial court erred in denying Kosten’s motion to vacate the judgment. For the reasons given below, we affirm the rulings of the lower court.

On May 16, 1980, the appellant’s husband, the decedent Victor Kosten, was brought to the emergency room of St. Anne’s Hospital. Dr. Thomas J. Moore, who is not involved in this appeal, diagnosed the decedent as having alcoholic withdrawal and delirium tremens. Drs. Moore, Sung and Shoai prescribed a course of treatment consisting of medication, hydration and application of leather straps. The doctors’ orders were carried out by the staff of the hospital.

Three days later, on May 19, 1980, Victor Kosten died of acute pulmonary edema and congestion due to chronic liver disease. Helen Kosten later filed suit. She claimed that the defendant physicians had: (1) failed to diagnose the decedent’s condition properly; (2) failed to treat his delirium tremens appropriately; (3) gave the decedent a fluid overload, resulting in his pulmonary edema and cardiovascular failure; (4) failed “to do the appropriate tests during fluid therapy”; and (5) failed to treat the decedent for his complications.

In her complaint against the hospital, Kosten claimed that it had failed to provide adequate supervision, failed to monitor the decedent’s condition, and failed to provide adequate medical care and treatment.

During discovery, attorneys for all the parties (except Dr. Shaoi) deposed Dr. Peter Rosen in Denver, Colorado, on May 4, 1982. The deposition of Dr. Rosen is crucial because it later became the basis for the defendants’ motion for summary judgment. Dr. Rosen, an expert in the treatment of alcoholism and related disorders, testified that the decedent would have died regardless of any change in treatment. Dr. Rosen testified as follows:

“Q. [By Mr. Howser, attorney for St. Anne’s]: As far as the patient[’s] care and management, is there anything that could have been done differently that would have in your opinion prevented this patient’s death?
A. No.
Q. What is the basis for your opinion, Doctor?
A. I think that this patient underwent a down hill course from his liver failure and his alcohol withdrawal, and while I personally would have used a different hydrational schedule, I don’t think that it would .have made a bit of difference in this case[,] nor do I find the dosage schedule of drugs and medications that was used to be negligent, just different from what I would have done.
* * *
Q. [by plaintiff’s attorney]: You are not saying, Doctor, that had all the things that I just mentioned, things that you would have done been done in this case, that this patient had no chance of survival?
A. That is precisely what I am saying. I think that even had more aggressive therapy been carried out for this patient, he had too many systems failing to salvage him. You might have been able to cure the pneumonia, but there is no evidence that he died of sepsis.
I don’t think that you would have been able to prevent his liver failure or his cerebral failure, and I very much doubt if you would have been able to prevent his pulmonary failure even without aggressive therapy. He might have died sooner.
* * *
I think what we are dealing with is a dying organism which took him three or four days to complete the act of dying.”

Armed with this testimony, St. Anne’s Hospital and Dr. Sung filed a motion for summary judgment on July 7, 1982. Dr. Shoai later joined in the motion. A hearing on the motion was postponed several times, and on April 15, 1983, the trial court ordered that all discovery was to be completed by June 15,1983.

At the June 15 hearing, Kosten requested another continuance to extend discovery. She disputed the finding that her husband had died of alcoholism but refused, when asked by the court, to suggest a cause of death because “[t]hat’s our trial strategy and theory [that] I wouldn’t like to divulge.” The court reluctantly granted a “final” continuance of 30 days.

The day before the scheduled “final” hearing date, July 14, Kosten filed a response to the motion for summary judgment by attaching an affidavit by Dr. Jack Morgan. The four-paragraph affidavit stated that Dr. Morgan was a licensed physician practicing in Chicago who specialized in internal medicine. Dr. Morgan also stated that the defendant physicians had:

“departed from the acceptable standards of medical practice in the management of the deceased, as follows:
A. In failing to attend and properly treat the decedent, Victor Kosten, for a period of approximately 36 hours after the said decedent experienced a significant change in his medical status.
B. In failing to fully utilize appropriate diagnostic measures and to employ aggressive diagnostic medical therapeutics in light of signs and symptoms of deteriorating cardiovascular function.” (Emphasis added.)

Approximately one year elapsed between the filing of defendants’ motion for summary judgment, on July 7, 1982, and the filing of plaintiff’s answer and counteraffidavit of Dr. Morgan, on July 14, 1983. This would appear to be an abnormally long delay. However, in medical malpractice cases, the courts recognize the reluctance of medical experts to testify for plaintiffs and the difficulty in obtaining such testimony. Stringer v. Zacheis (1982), 105 Ill. App. 3d 521, 523, 434 N.E.2d 50.

At the hearing on July 15, the court asked counsel for plaintiff to elaborate on the “significant change” and the failure to utilize the “appropriate diagnostic measures.” Counsel was faced with the option of requesting leave to file a supplemental affidavit or stand by the affidavit that was filed. Plaintiff’s responses did not satisfy the court, so it sustained defendants’ motion to strike Dr. Morgan’s affidavit. Without a counteraffidavit on file and no request for leave to file another affidavit, the court properly granted defendants’ motion for summary judgment.

On August 12, Kosten filed a motion to vacate the judgment and attached a revised affidavit by Dr. Morgan. In it, he stated that his professional experience included the care of alcoholics and that the defendant physicians had failed to “employ aggressive medical therapeutics including intensive care, inhalation therapy, use of diuretics and fluid intake reduction.” Although the revised affidavit was more specific, the statements and conclusions remained essentially the same as in the original.

At the hearing on the motion to vacate, the court asked plaintiff’s counsel:

“THE COURT: Mr. Nissen, is there anything in the second affidavit that wasn’t known to [Dr. Morgan] at the time he made out the first affidavit which was presented in *** opposition to the motion?
MR. NÍSSEN: I don’t think there is anything in the second affidavit that was not also known in the first affidavit. The problem with the first affidavit, there was a draftable [sic] problem.”

The motion to vacate was denied.

On December 9, Kosten filed a motion for rehearing. The court ruled that the motion was “inappropriate” and denied it. Kosten then appealed both the grant of summary judgment and the refusal to vacate the judgment.

I

The first issue is whether the trial court erred in granting the defendants’ motion for summary judgment. The standard for summary judgment is well settled: “A defendant may, at any time, move with or without supporting affidavits for a summary judgment in his or her favor as to all or any part of the relief sought against him or her.” (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1005(b).) Furthermore, a judgment can be rendered “without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1005(c).) In determining whether a genuine issue of fact exists, the court must strictly construe the evidence against the movant. Johnson v. St. Bernard Hospital (1979), 79 Ill. App. 3d 709, 714, 399 N.E.2d 198, appeal denied (1980), 79 Ill. 2d 631.

It is also established in this jurisdiction that summary judgment is appropriate in a medical malpractice case when there is no genuine issue of material fact. (Bennett v. Raag (1982), 103 Ill. App. 3d 321, 326, 431 N.E.2d 48, appeal denied (1982), 91 Ill. 2d 557.) Our supreme court has stated that a plaintiff “must establish the standards of care against which the defendant doctor’s conduct is measured. The plaintiff must then further prove by affirmative evidence that, judged in light of these standards, the doctor was unskillful or negligent and that his want of skill or care caused the injury to the plaintiff.” Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423, 328 N.E.2d 301.

What is disputed in this case is the defendants’ standard of care. The plaintiff, through the affidavit of Dr. Morgan, claimed that the defendants breached their duty to the decedent by deviating from the usual standard of care.

The trial court struck the plaintiff’s affidavit because it failed to comply with the requirements of Supreme Court Rule 191, which states in part:

“(a) Requirements. Affidavits in support of and in opposition to a motion for summary judgment under section 2 — 1005 of the Code of Civil Procedure *** shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; *** shall not consist of conclusions but of facts admissible in evidence; ***.” (87 Ill. 2d R. 191.)

Clearly, under the language of the statute, the trial court correctly struck the plaintiff’s affidavit as being legally insufficient for the following reasons.

Dr. Morgan’s affidavit stated that the defendants had departed from an acceptable standard of care by “failing to attend and properly treat the decedent” and by “failing to fully utilize appropriate diagnostic measures.” On their face, these statements are conclusions that are unsupported by specific facts. The plaintiff thus “ignores the rule of law that conclusions of fact unsupported by allegations of specific facts from which such conclusions may be drawn will not avail to present a genuine issue of material fact sufficient to take the case to the trier of fact.” (Steinmetz v. Board of Trustees (1978), 68 Ill. App. 3d 83, 88, 385 N.E.2d 745, appeal denied (1979), 75 Ill. 2d 594.) In this case, the affidavit had no facts to substantiate its conclusions, and affidavits not supported by allegations of fact are not sufficient to defeat a motion for summary judgment. Cantu v. Utility Dynamics Corp. (1979), 70 Ill. App. 3d 260, 265, 387 N.E.2d 990.

Even if we accept the plaintiff’s contention that the affidavit should have been allowed, the result is the same, because there is nothing in the affidavit to counter Dr. Rosen’s opinion that the decedent would have died regardless of any change in treatment. Where such averments of fact are not contradicted, they are taken as true. (Ware v. Carey (1979), 75 Ill. App. 3d 906, 923, 394 N.E.2d 690.) Dr. Morgan’s affidavit does not state facts prescribing an alternative course of treatment that could have saved Victor Kosten.

Plaintiff contends that the trial court erred in its analysis of Dr. Morgan's affidavits by failing to apply the rules of Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, cert, denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140. In Wilson, our supreme court held that an expert may give opinion testimony at trial without disclosing facts underlying such opinion. The burden is placed upon the adverse party during cross-examination to elicit facts underlying the expert opinion. (84 Ill. 2d 186, 194.) Therefore, plaintiff argues that an expert’s affidavit need not state any facts but may set forth only conclusions.

Wilson has no relevance to summary judgment procedure. An affidavit utilized in summary judgment procedure is totally different from testimony at trial. The affidavit cannot be cross-examined as can a witness at trial.

Supreme Court Rule 191 is specific in mandating that affidavits cannot consist of conclusions but must set forth facts admitted in evidence. (87 Ill. 2d R. 191.) Wilson did not overrule or modify Rule 191.

Dr. Morgan’s affidavits did not meet the requirements of Rule 191 and were properly stricken.

II

Plaintiff also argues that the trial court abused its discretion by denying her motion to vacate the judgment. Generally, the court’s decision will be affirmed unless the movant shows an abuse of discretion. (Chandler v. Jet Air Freight, Inc. (1977), 54 Ill. App. 3d 1005, 370 N.E.2d 95.) The test is whether the refusal to vacate the judgment violates a plaintiff’s right to fundamental justice and manifests an improper application of discretion. (54 Ill. App. 3d 1005, 1007.) The movant carries the burden of establishing sufficient grounds to vacate the order. In re Marriage of Melton (1981), 93 Ill. App. 3d 338, 343, 417 N.E.2d 220.

At the hearing on the motion to vacate, the trial court specifically asked the plaintiff whether the revised affidavit contained anything new. Plaintiff answered, “I don’t think there is anything in the second affidavit that was not also known in the first affidavit ***.” Thus, plaintiff herself concedes that there was no new evidence to consider, so it is evident that there was no abuse of discretion in not vacating the judgment. A motion to vacate is properly denied when the evidence was in the movant’s possession and could have been presented prior to judgment. Rahill Corp. v. Urbanski (1984), 123 Ill. App. 3d 769, 777, 463 N.E.2d 765.

The revised, four-paragraph affidavit, moreover, was all that plaintiff produced in the time between the defendants’ motion for summary judgment and the court’s granting of the motion almost a year later. In that time, the court gave the plaintiff ample opportunity to present her case. The result, as we have noted, was an affidavit that was conclusory and that did not create any triable issues of fact. A mere assertion by a plaintiff “that there exists a genuine issue of material fact does not create such an issue.” Loizzo v. St. Francis Hospital (1984), 121 Ill. App. 3d 172, 180, 459 N.E.2d 314, appeal denied (1984), 99 Ill. 2d 529.

Finally, the plaintiff argues that the court abused its discretion when it refused to allow her motion for rehearing, filed December 14, 1983. The argument is without merit, for her motion was clearly improper under the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1203), which provides that a post-judgment motion in a nonjury case be brought within 30 days. Because the judgment here was rendered on July 15, the plaintiff’s motion of December 14 was untimely and merely duplicated her earlier motion to vacate the judgment.

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

Affirmed.

STAMOS, P.J., and HARTMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE PERLIN

license: Public Domain

text:
    LEONARD W. KOSOGLAD, Plaintiff-Appellant, v. JOHN C. PORCELLI et al., Defendants-Appellees.
    First District (2nd Division)
    No. 84—2422
    Opinion filed April 23, 1985.

      Hoffman & Davis, of Chicago (Maurice L. Davis, of counsel), for appellant.
    Ronald S. Cope, John B. Murphey, and Peter M. Barron, all of Ancel, Clink, Diamond, Murphy & Cope, P.C., of Chicago (David L. Ader, of counsel), for appellees.
   JUSTICE PERLIN

delivered the opinion of the court:

Leonard W. Kosoglad, plaintiff, appeals from an order of the circuit court of Cook County dismissing on the merits his complaint wherein he requested the trial court to hold that his removal from the Lincolnwood board of fire and police commissioners (board of commissioners) by the board of trustees of the village of Lincolnwood (village board) was unlawful.

In 1982, plaintiff was appointed by the mayor of Lincolnwood to the board of commissioners for a three-year term. On September 15, 1983, defendant Porcelli, mayor of Lincolnwood, presented to plaintiff and to the village board six written charges against plaintiff, and requested that the village board vote to remove plaintiff from the board of commissioners.

The charges stated that plaintiff had sought to “undermine the authority of the chief of police by interfering in personnel matters under the jurisdiction of the chief” in that at a meeting held on September 7, 1983, attended by plaintiff, the chief and several village police officers, plaintiff made “disparaging statements” about the chief, including having advised the chief that his retention as chief “was dependent upon” plaintiff’s “help,” that plaintiff had “criticized the chief in his operation of the department and, in particular, how he dealt with his supervisory personnel” and had advised the officers that “they should have tried harder to obtain pay raises” and that plaintiff “requested the chief to remove 50% of the disciplinary records” from one officer’s personnel files. It was charged that these actions “are contrary to the function and purpose of the business of a member of the *** [Board of Commissioners],” are “improper and undermine the morale of the police department. Such conduct is also contrary to the letter and spirit of the law in that it is outside the scope of authority given to a Commissioner, and prevents that Commissioner from remaining objective in the evaluation of police officers for promotion within the department.”

A hearing on the charges was held by the board at the village board’s regularly scheduled meeting of September 19, 1983. Village attorney Cope stated that he would serve only as an advisor to the village board on matters of procedure and objections; another attorney had been retained by the village to present to the village board the evidence against plaintiff.

Plaintiff, the chairman of the board of commissioners, the chief of police, the mayor, and the four police officers who attended the September 7, 1983, meeting presented testimony. While the evidence was somewhat contradictory, for purposes of this opinion it is sufficient to say that the essence of the testimony was as follows: On September 7, plaintiff called the chief and four other officers to arrange a meeting to discuss what plaintiff termed a “very severe morale problem.” Plaintiff did not advise the mayor or other commissioners of the alleged morale problem or of the meeting which he had arranged. At the meeting plaintiff indicated to the chief that some of the officers were concerned that the chief was placing into their personnel files critical memos which allegedly related to trivial matters. According to some of the participants in the meeting, plaintiff suggested the chief should remove “50%” of the memos in the personnel files.

Plaintiff discussed, or criticized, the manner in which the chief handled personnel problems. Testimony was elicited to the effect that plaintiff advised the officers that if they, rather than the chief, had presented their request for higher pay to the village board, they would have received larger raises.

The chairman of the board of commissioners testified that it was not the duty of the board of commissioners to intercede in disputes between the chief and police officers, nor was it the policy of the board of commissioners to undertake informal investigations of the police department or to comment on salary negotiations. A year earlier the chairman, in the presence of the mayor, had requested plaintiff to not interfere in police department business.

At the close of the evidence, the village board voted to continue the matter to its next regularly scheduled meeting. At that next meeting, the village board went into executive (closed) session to consider plaintiff’s removal. Following the executive session, the village board returned to the public meeting and voted to remove plaintiff from the board of fire and police commissioners, with five members voting for removal and one member abstaining.

Plaintiff filed a three-count complaint in the circuit court to challenge his removal. Count I sought a declaratory judgment that plaintiff’s removal was unlawful, count II sought administrative review of the removal and count III petitioned for a writ of certiorari. Counts I and II were dismissed by the trial court; plaintiff subsequently amended count III to include substantially the same allegations as were contained in the stricken counts.

The trial court denied defendants’ motion to dismiss count III and ordered defendants to file a certified record of the evidentiary proceedings had before the village board. After reviewing the record, and receiving the written and oral arguments of counsel, the court refused to quash the village board proceedings, and dismissed plaintiff’s complaint.

The essence of plaintiff’s allegations in this court is that the village board’s removal of plaintiff as a member of the board of fire and police commissioners was unlawful because: (1) there was no sufficient “cause” shown for his removal; (2) village attorney Cope’s participation rendered the hearing before the village board unfair and; (3) the village board’s closed executive session in which plaintiff’s removal was considered violated the Illinois Open Meetings Act (Ill. Rev. Stat. 1983, ch. 102, par. 41 et seq.). Defendants cross-appeal, contending that the trial court erred in denying, without a hearing, defendant’s petition for costs and attorney fees under section 2 — 611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2— 611). We affirm the trial court in all respects.

The parties agree that section 10 — 2.1—3 of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 10 — 2.1—3) applies here. That statute provides in part:

“Members [of the Board of Fire and Police Commissioners] shall not be subject to removal, except for cause, upon written charges, and after an opportunity to be heard within 30 days in his or her own defense, before a regular meeting of the governing body of the municipality for which they have been appointed. A majority vote of the elected members of such governing body shall be required to remove any such member from office.”

The relevant Lincolnwood ordinance mirrors this statutory language.

Defendants have contended throughout these proceedings that the judiciary is without authority to review whether adequate “cause” for plaintiff’s removal was shown. They posit that since members of the board of commissioners are “political appointees” holding policy-making positions within the municipality and because the General Assembly has committed the responsibility and discretion for their removal to a local legislative body — the village board — the courts are without authority to review such action. We do not agree.

The position here advanced by defendants — that the village board has unbridled and unreviewable discretion to remove commissioners — was, at one time, the law of the State. In People ex rel. Stenzel v. Ireland (1960), 28 Ill. App. 2d 291, 171 N.E.2d 241, the applicable statute provided only that members of the board of fire and police commissioners could be removed by a majority vote of the city council. In rejecting a dismissed commissioner’s request for judicial review of his removal the court held:

“Some point is also made that notice, and presumably, a hearing should have been had as to the Board of Fire and Police Commissioners. While the statute provides for a specific method for suspension or discharge of firemen or policemen by setting up requirements or [sic] written charges, notice, and for a hearing on the charges, no such requirements are prescribed for removal or discharge of the members of the Board of Fire and Police Commissioners. The Council is given the right to remove such members, presumably without hearing or charges, or any reason given. The Court has no right to inquire into the discretion exercised by the Council or to review the manner of removal.” 28 Ill. App. 2d 291, 295; see also Hutchins v. Heffran (1895), 56 Ill. App. 581, aff’d (1896), 160 Ill. 550.

In 1965 the General Assembly amended section 10 — 2.1—3 (Ill. Rev. Stat. 1965, ch. 24, par. 10 — 2.1—3) to provide that “[m]embers [of the Board of Fire and Police Commissioners] shall not be subject to removal, except for cause, upon written charges and after an opportunity to be heard ***. A majority vote of the elected members of such governing body [of the municipality] shall be required to remove any such member from office.” We think the legislative amendment authorizing removal only for cause to be not without significance. It is recognized that an amendment to an unambiguous statute indicates a legislative intention to change the law, and it is presumed that every amendment is made for some purpose; courts must give effect to the amended law in a manner consistent with the amendment. (People v. Youngbey (1980), 82 Ill. 2d 556, 563, 413 N.E.2d 416.) It has long been held in this State that in cases where removal from office could only be for “cause,” such determination was judicially reviewable. See, e.g., Murphy v. Houston (1928), 250 Ill. App. 385.

Defendants contend that the fact that removal is dependent on cause does not permit the judiciary to review whether cause was in fact shown, citing to Wilcox v. People ex rel. Lipe (1878), 90 Ill. 186. In Wilcox, our supreme court construed a constitutional provision from the 1870 Illinois Constitution which declared that “[t]he Governor shall have the power to remove any officer whom he may appoint, in case of incompetency, neglect of duty or malfeasance in office” to preclude judicial review of the Governor’s exercise of his removal power:

“The conclusion is, that the power of removal from office in the present case existed in the Governor; that the manner of his exercise of the power can not be questioned by the courts, and must be held valid.” 90 Ill. 186, 207.

However, in Lunding v. Walker (1976), 65 Ill. 2d 516, 359 N.E.2d 96, the court substantially modified the Wilcox holding. In Lunding the plaintiff challenged the Governor’s effort to remove him from the State Board of Elections. Construing the constitutional provision relating to the Governor’s removal power (which language was virtually identical to that found in the 1870 Constitution), the court held that “because of the unique character of the office held by plaintiff, the Governor could only remove plaintiff for cause. Further, we hold that the determination of the adequacy of the cause for removal is, in this case, judicially reviewable.” 65 Ill. 2d 516, 518-19.

A factor relied upon by the court in Lunding for holding that judicial review of the Governor’s removal power was appropriate was the court’s emphasis of the importance of an independent State Board of Elections.

“It is plain that the legislators intended, and the public interest demands, that Board members not be amenable to political influence or discipline in the discharge of their official duties. To subject a neutral, bipartisan, and independent board to the unbridled whim of the Governor under the Wilcox rule would destroy its purpose and its efficacy. As the Supreme Court made clear in Humphrey’s Executor, ‘it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter’s will.’ (295 U.S. 602, 629, 79 L. Ed. 1611, 1620, 55 S. Ct. 869.) If the holding of this court in Wilcox were extended and applied to the removal of the members of the State Board of Elections, the political independence of that body envisioned by the delegates to the constitutional convention and sought to be achieved by the legislature would be jeopardized. We therefore hold that the Governor can only-remove a member of the State Board of Elections for cause.” 65 Ill. 2d 516, 527.

The purpose of the board of commissioners is, inter alia, to conduct “fair and impartial” hearings of charges brought against police officers by municipalities (Ill. Rev. Stat. 1983, ch. 24, par. 10 — 2.1— 17) and to assist in the promotion of officers by maintaining a list of “eligibles” based upon their “relative excellence” (Ill. Rev. Stat. 1983, ch. 24, par. 10 — 2.1—14) and to enact rules to “provide for promotion in the fire and police departments ***.” Ill. Rev. Stat. 1983, ch. 24, par. 10 — 2.1—15.

The board of fire and police commissioners shares many of the characteristics which the supreme court found relevant with regard to the State Board of Elections in Lunding. The board of commissioners is appointed by the mayor, with the consent of the board of trustees (Ill. Rev. Stat. 1983, ch. 24, par. 10 — 2.1—1), while' members of the State Board of Elections are appointed by the Governor with the advice and consent of the Senate (Ill. Rev. Stat. 1983, ch. 46, par. 1A-4). The board of commissioners was intended by the General Assembly to be an independent agency free from political and other influences in order that it may perform its duties in a fair and impartial manner. (Westby v. Board of Fire & Police Com. (1977), 48 Ill. App. 3d 388362 N.E.2d 1098.) Like the State Board of Elections, the legislature mandated that the board of commissioners be bipartisan; no more than two of its three members may be of the same political party (Ill. Rev. Stat. 1983, ch. 24, par. 10 — 2.1—3). In sum, both agencies were established by our General Assembly so that they would be “neutral, bipartisan and independent” in the performance of their significant responsibilities.

In consideration of the above, we conclude that the present statutory scheme authorizes judicial review of the adequacy of the cause for removal of members of the board of fire and police commissioners under the instant statute. We do believe, however, that the courts should pay great deference to the local governing body’s determination of “cause” for removal in such circumstances.

While no statutory definition of “cause” is provided in the present statute, courts construing that term in similar statutory settings have held that “[t]he authority *** to remove only for cause is not an arbitrary one, but is to be exercised on just and reasonable grounds. The record must show the board’s order is based upon evidence fairly tending to sustain it.” (Fantozzi v. Fire & Police Commissioners (1963), 27 Ill. 2d 357, 360, 189 N.E.2d 275.) The supreme court in De partment of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 551-52, 426 N.E.2d 885, stated:

“There is no statutory definition of ‘cause.’ ‘Cause’ has been judicially defined as ‘some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding the position.’ [Citations.]
Due to the paucity of specific guidance, several appellate decisions in this State have held that the question of whether there is sufficient cause for discharge is generally for the agency to determine. [Citations.] ***. These cases, however, make it clear that the Commission’s determination to discharge might be overturned only if its decision is arbitrary, unreasonable, or unrelated to the requirements of service. [Citation.]
We agree with the appellate court decisions finding that the question of whether cause for discharge exists should be determined by the administrative agency. We therefore hold that the agency’s decision as to cause will not be reversed unless it is arbitrary, unreasonable, or unrelated to the requirements of service.”

Here, the village board determined that plaintiff’s actions in injecting himself into police department affairs and in calling a meeting between the chief, several of his men and himself, during which plaintiff criticized various aspects of the chief’s administration of the police department was: “contrary to the function and purpose” of a commissioner; “improper and undermined” the morale of the police department; and “contrary to the letter and spirit of the law,” as it was outside of the scope of authority given a commissioner and prevented him from “remaining objective” when dealing with the board of commissioner’s police disciplinary and promotion duties.

Plaintiff had been previously advised to not interfere with internal police affairs. Nevertheless, he again injected himself into matters which were internal police matters, and not related to affairs over which the board of commissioners had authority. This conduct, even assuming that plaintiff’s motives were pure, was contrary to the village policy of noninterference with the police department. It seemingly contradicted plaintiff’s responsibilities as a commissioner since, by statute, the Board of Commissioners is forbidden to make rules which “govern the operation of the police or fire department or the conduct of its members unless the governing body of the municipality specifically authorizes” the board of commissioners to so act. Ill. Rev. Stat. 1981, ch. 24, par. 10-2.1-5.

We believe the plaintiff’s actions could reasonably be found to constitute sufficient cause for his removal from the board of commissioners.

Plaintiff next contends that the manner of village attorney Cope’s participation at the hearing before the village board in some manner resulted in plaintiff receiving an unfair hearing. The gist of plaintiff’s argument is that because the record indicates that Mayor Porcelli requested Cope’s assistance in drafting the written charges brought against plaintiff by the mayor, Cope’s subsequent role as “ad-visor” to the village board during the hearing in some manner “tainted” the proceedings against plaintiff. We find this contention to be without merit. Plaintiff has neither pointed to improper statements or evidentiary rulings by Cope nor suggested any conduct by Cope which interfered with plaintiff’s presentation of his case before the board.

Similarly, plaintiff contends that because Cope participated in the drafting of the charges, Cope could not “as a matter of professional responsibility, endeavor to defeat the charges which he, as a lawyer, had prepared for a client.” Plaintiff then cites to cases in which it was held that a person with a “personal interest” in a case should not sit in “judgment” on that case. We do not perceive the applicability of that maxim to the instant case. First, plaintiff has not shown that Cope had any “personal interest” in these proceedings. We decline plaintiff’s suggestion that Cope’s drafting of the mayor’s charges evidences a personal interest in the proceedings against plaintiff. Second, Cope did not sit in judgment here. The village board, of which Cope was not a member, sat in judgment.

In Breitling v. Solenberger (W.D. Va. 1984), 585 F. Supp. 289, a schoolteacher challenged his dismissal on due process grounds because of the school board’s use of its retained counsel as both a representative of the prosecutor (the school superintendent) and as a representative of the adjudicatory body (the school board). The court rejected the contention:

“In the case at hand *** the school board did not participate in any investigation of Breitling, nor does the complaint allege that any school board members were involved in the initial dismissal decision by the superintendent. Breitling asserts only that he did not receive the process due him because the same attorney in essence ‘prosecuted’ him by presenting the superintendent’s case for dismissal and also advised the school board throughout the hearing on procedural and evidentiary matters. Moreover, the school board attorney also made a recommendation on the close of evidence that the school board confirm the superintendent’s dismissal decision. This dual role of the school board attorney, however, falls far short of the combination of functions that the [Supreme] Court unanimously refused to proscribe as a due process violation in Withrow. A school board, after all, can hardly be said to be its hired counsel’s puppet. The plaintiff has made neither allegations nor showing that this is the case here. The procedures employed by the school board do not present an intolerable risk of prejudgment or partiality. Acceptance of plaintiff’s contention would require that either the superintendent would have to present his case for dismissal without legal assistance, or that the school board must retain additional counsel for the superintendent alone in the context of such an administrative hearing ***.
In sum, the court finds that, as a matter of law, the school board’s reliance on its attorney, who also presented the case for the superintendent, did not violate Breitling’s right to constitutional due process.” (Breitling v. Solenberger (W. D. Va. 1984), 585 F. Supp. 289, 291.)

See also Kaiser v. Dixon (1984), 127 Ill. App. 3d 251, 468 N.E.2d 822.

Plaintiff next contends that the village board violated the Illinois Open Meetings Act (Act) when it met in closed session to consider plaintiff’s removal after the presentation of evidence in an open meeting. We do not agree. The Act itself enumerates exceptions to its requirement that meetings of public bodies be open. Section 2 of the Act states, in part:

“This section does not prevent any body covered by this Act from holding closed sessions to consider information regarding appointment, employment or dismissal of an employee or officer, or to hear testimony on a complaint lodged against an employee or officer to determine its validity.” (Ill. Rev. Stat. 1983, ch. 102, par. 42.)

In Jewell v. Board of Education (1974), 19 Ill. App. 3d 1091, 312 N.E.2d 659, the court found no violation of the Act when, after a public hearing on the “disemployment” of the plaintiff, the board retired to executive session to “consider plaintiff’s case.” In Grissom v. Board of Education (1979), 75 Ill. 2d 314, 326-27, 388,N.E.2d 398, the supreme court endorsed the analysis set forth in Jewell. In Davis v. Board of Education (1978), 63 Ill. App. 3d 495, 380 N.E.2d 58, the court rejected the plaintiff’s contention that the Act was violated when, after a public hearing on plaintiff’s removal, the board took a “tentative vote” in closed session. We find that these cases support the proposition that the Act allows a public body to consider dismissal matters in a closed session, so long as their final action is taken at an open meeting, as occurred here.

Plaintiff raises several other issues which may be readily disposed of. He argues that the trial court erred in dismissing count I of the complaint (seeking a declaratory judgment that plaintiff’s removal was unlawful). First, as we have, stated, we do not find plaintiff’s dismissal unlawful. Secondly, after dismissal of count I, plaintiff amended count III of his complaint to include the same allegations as were found in count I. The trial court’s dismissal of count III, after a review of the merits, resulted in the court’s consideration of the substantive allegations of count I. Thus any error in the dismissal of count I was inconsequential. Plaintiff contends that the trial court erred in failing to grant his motion for summary judgment. The record shows that while plaintiff filed a motion for summary judgment, he failed to move for a hearing thereon, and the trial court never ruled on the motion. Since, as has been stated, plaintiff was not entitled to judgment in his favor, there can be no error due to the trial court’s failure to rule otherwise.

Plaintiff also contends that the written charges made against him were impermissibly vague. However, he failed to so argue before either the village board or the trial court, and, therefore, he has waived consideration of this issue in this appeal. Lion Specialty & Properties, Inc. v. City of Chicago Zoning Board (1969), 107 Ill. App. 2d 354, 247 N.E.2d 30.

Defendants have cross-appealed, arguing that the trial court erred in refusing to grant their motion for expenses and attorney fees. The record shows that in response to certain allegations found in count I of the complaint (alleging, inter alia, a “conspiracy” among defendants to remove plaintiff from the commission without cause, and that defendants engaged in “unlawful and criminal” misconduct in the course of the board’s executive session), defendants filed a petition pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 611). That statute provides, in part:

“Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleadings, together with a reasonable attorney’s fee ***.”

A successful movant must demonstrate that the allegations were both (1) made without reasonable cause, and (2) untrue.

At the conclusion of the case, the trial court denied defendants’ motion for expenses. Defendants now contend that the trial court erred in not requiring a hearing to be held on the motion.

The laudable purpose of this statute is to prevent abuses of the judicial process. (Marczek v. Powers Label Co. (1975), 31 Ill. App. 3d 939, 335 N.E.2d 172.) The statute being penal in nature, it should be invoked only in those cases falling strictly within the statutory terms. (Marczek v. Powers Label Co. (1979), 31 Ill. App. 3d 939, 335 N.E.2d 172.) The allowance of relief is within the discretion of the trial court, and its decision will not be overturned unless it is shown that the court abused its discretion. Pole Realty Co. v. Sorrells (1981), 84 Ill. 2d 178, 417 N.E.2d 1297.

It has been held that “the necessity for a hearing, of what type, has been said to vary with the circumstances surrounding the motion.” (Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App. 3d 500, 512, 394 N.E.2d 1273.) Where the court can determine the issues presented without a hearing, none is required. (Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App. 3d 500, 394 N.E.2d 1273.) It has also been held that no hearing is required where such hearing “would have involved virtually a retrial of all of the basic issues raised in the pleadings.” Voss v. Lakefront Realty Cory. (1977), 48 Ill. App. 3d 56, 72, 365 N.E.2d 347.

Inherent in the trial court’s remarks made in denying defendants’ motion here was a finding that plaintiff’s allegations, even if proved to be untrue, were not made without reasonable cause. (See Farwell Construction Co. v. Ticktin (1978), 59 Ill. App. 3d 954, 376 N.E.2d 621.) Based upon the above, and our own review of the record, we cannot say that the trial court’s decision denying defendants’ motion was an abuse of discretion.

For the reasons stated herein, the trial court’s order dismissing plaintiff’s complaint and denying defendants’ motion for expenses is affirmed.

Affirmed.

STAMOS, P.J., and HARTMAN, J., concur.

       Writs have been abolished in Illinois. (Ill. Rev. Stat. 1983, ch. 110, par. 2— 1501.) The trial court’s order, requiring defendants to file a certified copy of the removal proceedings, held before the village board, was issued in lieu of a writ of certiorari. Thereafter the court “quashed” the writ, i.e., ruled in favor of defendants.


author: JUSTICE SCHNAKE

text:
    PATRICK BURKE, Plaintiff-Appellee, v. BOARD OF REVIEW, ILLINOIS DEPARTMENT OF LABOR, Defendants-Appellants (McCartin, McAuliffe Mechanical Contractors, Inc., Defendant).
    Second District
    No. 84—170
    Opinion filed May 1, 1985.

      Neil F. Hartigan, Attorney General, of Springfield (Thomas P. Marnell, Assistant Attorney General, of Chicago, and John Steven Cole, Special Assistant Attorney General, of Elmhurst, of counsel), for appellants.

      Kathleen P. Konicki and John P. Ridge, both of Hinsdale, for appellee.
   JUSTICE SCHNAKE

delivered the opinion of the court:

The defendants, the Board of Review (Board), and the Illinois Department of Labor (Department), appeal from an order of the circuit court, entered in an administrative review proceeding, that reversed the Board’s determination that the plaintiff, Patrick Burke, was not qualified for unemployment insurance benefits under the provisions of section 601(A) of “An Act in relation to a system of unemployment insurance” (Unemployment Insurance Act) (Ill. Rev. Stat. 1981, ch. 48, par. 431(A)). The Board argues that the trial court’s order must be reversed for two reasons: (1) that the court below improperly considered and relied upon evidence outside the administrative record; and (2) that the Board’s determination — that the plaintiff was not entitled to unemployment insurance benefits — was not contrary to the manifest weight of the evidence.

The plaintiff had been employed by McCartin, McAuliffe Mechanical Contractors, Incorporated (McCartin), as a pipefitter at the Dresden nuclear power station for three months prior to November 1, 1982. Subsequently, Burke applied for unemployment compensation benefits. In his application Burke stated that he left his job with Mc-Cartin “to take another job because he felt that conditions were hazardous at Dresden due to a lack of safety precautions.”

On December 15, 1982, an Illinois Department of Labor claims adjudicator determined that the plaintiff was ineligible for unemployment insurance benefits. The adjudicator found that the claimant voluntarily terminated his job to take another position that did not materialize. The adjudicator decided that the termination was not attributable to the employer and concluded, therefore, that the plaintiff was not qualified for unemployment insurance benefits under the provisions of section 601A of the Unemployment Compensation Act.

Approximately two weeks later, the plaintiff filed a timely appeal from this determination with the appeals section of the Unemployment Insurance Division of the Department, and on January 8, 1983, he was granted a formal hearing before a Department hearings referee. At this hearing Burke stated that he felt he had another job (with Amoco Oil) when he quit his position with McCartin at Dresden, but the new job with Amoco Oil did not materialize. He related, also, that he orally notified his supervisor of his intention to quit, but admitted (1) that he failed to provide any reason for his leaving, and (2) that he did not report the allegedly unsafe conditions to his employer so that they could be rectified. He testified, in addition, that he feared he would be branded a troublemaker if he complained about the purportedly hazardous conditions. Also, he remarked that his supervisors were already cognizant of the unsafe conditions. Finally, Burke claimed that before he quit two fellow employees were found to be contaminated with radiation upon departing the facility. As a result, his co-workers lost some clothing and had to take a shower. However, he himself was not found to be contaminated.

The referee was also presented with evidence, in the form of a letter from the plaintiff’s supervisor at McCartin, that the plaintiff did not mention to him that he was leaving due to hazardous working conditions; rather, Burke merely mentioned that he was quitting.

On January 31, 1983, the hearings referee denied the plaintiff’s claim for benefits under section 601(A). In his findings of fact, the referee stated that the plaintiff left his job “because he considered that areas of radiation were still unknown and as such the work areas were hazardous.” The referee found, also, that the claimant hoped to start a new job at the time of his departure from McCartin, but the new position did not materialize. Lastly, the referee found that Burke “did not discuss the reasons for his dissatisfaction with his work with his supervisor before leaving.”

In reaching his decision to affirm the determination of the claims adjudicator, the referee concluded:

“Since the claimant failed to discuss the reasons for his dissatisfaction with his work with his supervisors in an effort to try to remedy them before leaving he failed to use all reasonable means to remain employed as he was obliged to do [,] and therefore his leaving must be held to be without good cause attributable to the employer and subjects the claimant to the disqualification for benefits *** [under] Section 601A of the Act.”

The plaintiff appealed to the Department’s Board of Review, which affirmed the referee’s decision on April 29, 1983, stating that the referee’s findings of fact and decision found support in the record and the law.

On June 3, 1983, the plaintiff filed the present action for judicial review of the Board’s decision. (See Ill. Rev. Stat. 1981, ch. 110, par. 3 — 101 et seq.) Thereafter, the plaintiff filed an amended complaint for administrative review, appending as exhibits to it certain news releases and letters from the Nuclear Regulatory Commission (NRC). The Board and the Department moved to strike the exhibits on the ground that they had not been made a part of the administrative record previously.

The trial court reviewed the amended complaint and all the exhibits attached to it. On June 24, 1984, the court below denied the motion to strike, remarking that the materials were relevant to the proceedings and, therefore, should be part of the record. After determining that the plaintiff had reasonable cause to terminate his employment, the court reversed the Board’s decision. The Board and the Department appealed in timely fashion (see Ill. Rev. Stat. 1981, ch. 110, par. 3-112).

The Board’s first contention is that the trial court erred when it admitted and considered the exhibits, in the form of news releases and letters from the NRC, the plaintiff appended to his amended complaint for administrative review. The Board concludes that the trial court’s improper reliance on evidence outside the administrative record amounted to reversible error.

The trial court reviewed the appended exhibits, denied the motion of the Board and the Department to strike them, stated that the materials were relevant to the proceedings, and then made them part of the record.

Section 3 — 110 of the Code of Civil Procedure provides, with respect to administrative review, that “[n]o new or additional evidence in support of or in opposition to any finding, order determination or decision of the administrative agency shall be heard by the court” (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 110). (Village of Western Springs v. Pollution Control Board (1982), 107 Ill. App. 3d 864, 870.) During an administrative review proceeding, the circuit court is confined to a consideration of the evidence submitted during the administrative hearing and may not entertain additional evidence or conduct a hearing de novo. (Pipe Trades, Inc. v. Rauch (1954), 2 Ill. 2d 278, 291; Northwest Hospital v. Illinois Health Facilities Planning Board (1978), 59 Ill. App. 3d 221, 227; Lamar v. Illinois Racing Board (1977), 55 Ill. App. 3d 640, 647; Monsanto Co. v. Pollution Control Board (1976), 39 Ill. App. 3d 333, 336, rev’d on other grounds (1977), 67 Ill. 2d 276; see Tri-America Oil Co. v. Department of Review (1982), 117 Ill. App. 3d 774, 777, affd (1984), 102 Ill. 2d 234.) Because the exhibits were not offered into evidence before the administrative agency, the trial court could not properly consider them. (Cf. Kellenbenz v. Commonwealth Unemployment Compensation Board of Review (1983), 71 Pa. Commw. 468, 469 n.2, 454 A.2d 1202, 1202 n.2 (a court of review may not consider evidence that was not presented before the administrative agency).) The court’s consideration of these exhibits was not harmless error. See, e.g., Lamar v. Illinois Racing Board (1977), 55 Ill. App. 3d 640, 647.

Rather than hearing or considering new evidence, thereby attempting to correct any alleged deficiency in the evidence presented to the administrative agency, the trial court should have remanded the matter to the Department for a hearing to take additional evidence (see Ill. Rev. Stat. 1981, ch. 110, pars. 3 — lll(aX6), (7)). Rock Island Metal Foundry, Inc. v. City of Rock Island (1953), 414 Ill. 436, 439-40; see Strohl v. Macon County Zoning Board (1952), 411 Ill. 559; Appel v. Zoning Board of Appeals (1970), 120 Ill. App. 2d 401, 404-05.

The defendants’ additional contention is that the manifest weight of the evidence supports the Board’s decision that the plaintiff was not eligible for unemployment insurance benefits because he voluntarily left his job without good cause attributable to his employer. Therefore, they concluded that the trial court improperly reversed the decision of the Board. More specifically, the defendants argue that the plaintiff failed to establish either that a health hazard existed or that he had a firm job offer.

The cardinal purpose of the Illinois Unemployment Insurance Act (Ill. Rev. Stat. 1981, ch. 48, par. 300 et seq.) is to provide compensation benefits to unemployed individuals in order to alleviate their economic distress that was occasioned by involuntary unemployment. (Wadlington v. Mindes (1970), 45 Ill. 2d 447, 452, appeal dismissed (1970), 400 U.S. 935, 27 L. Ed. 2d 242, 91 S. Ct. 252; Clark v. Board of Review (1984), 126 Ill. App. 3d 559, 561; Lipman v. Board of Review (1984), 123 Ill. App. 3d 176, 179.) The receipt of unemployment insurance benefits in this State is a conditional right, and the claimant bears the burden of establishing eligibility before the agency. (Clark v. Board of Review (1984), 126 Ill. App. 3d 559, 561; Lipman v. Board of Review (1984), 123 Ill. App. 3d 176, 181; Crocker v. Department of Labor (1984), 121 Ill. App. 3d 185, 188; Thompson v. Board of Review (1983), 120 Ill. App. 3d 1, 7 (Nash, J., dissenting); James v. Department of Labor (1983), 119 Ill. App. 3d 524, 527.) In order to be eligible for benefits, however, claimants must satisfy the terms and conditions the Unemployment Compensation Act prescribes. (Clark v. Board of Review (1984), 126 Ill. App. 3d 559, 561.) It is clear that the Act must be construed liberally for the benefit of unemployed workers. Davis v. Board of Review (1984), 125 Ill. App. 3d 67, 72; Jackson v. Board of Review (1984), 121 Ill. App. 3d 963, 967, appeal allowed (1984), 101 Ill. 2d 546; Garland v. Department of Labor (1984), 121 Ill. App. 3d 562, affd (1984), 104 Ill. 2d 383.

Section 601(A) of the Act provides, as relevant to this appeal, that a claimant “shall be ineligible for benefits for the week in which he has left work voluntarily without good cause attributable to the employing unit ***.” (Ill. Rev. Stat. 1981, ch. 48, par. 431(A).) The provisions of this section are subject to five exceptions (Ill. Rev. Stat. 1981, ch. 48, par. 431(B)), none of which is apposite here. The statute, however, does not define “good cause.” Davis v. Board of Review (1984), 125 Ill. App. 3d 67, 72.

Once the legal standard of good cause is established, the adjudication whether the particular conduct satisfied that test ordinarily is a factual matter. (Thompson v. Board of Review (1983), 120 Ill. App. 3d 1, 4.) It is axiomatic that an agency’s findings concerning factual questions are prima facie true and correct and should not be disturbed on review unless they are contrary to the manifest weight of the evidence. (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 110; Garland v. Department of Labor (1984), 104 Ill. 2d 383, 392; Gregory v. Bernardi (1984), 125 Ill. App. 3d 376, 381; Crocker v. Department of Labor (1984), 121 Ill. App. 3d 185, 189; Thompson v. Board of Review (1983), 120 Ill. App. 3d 1, 4.) Given its limited function in an unemployment compensation case, the judiciary will not reweigh the evidence adduced at an administrative hearing (120 Ill. App. 3d 1, 4) or substitute its judgment for that of the agency unless the administrative findings are without substantial support in the record (125 Ill. App. 3d 376, 381; see James v. Department of Labor (1983), 119 Ill. App. 3d 524, 527). (See Clark v. Board of Review (1984), 126 Ill. App. 3d 559, 562.) A finding is against the manifest weight of the evidence if an opposite conclusion is clearly evident. Doran v. Department of Labor (1983), 116 Ill. App. 3d 471, 474; Meyers v. Illinois Department of Public Aid (1983), 114 Ill. App. 3d 288, 291; see Thompson v. Board of Review (1983), 120 Ill. App. 3d 1, 5; Clark Oil & Refining Corp. v. Golden (1983), 114 Ill. App. 3d 300, 308.

Because the term “good cause” as used in section 601(A) of the Unemployment Compensation Act is not defined there, and in light of the fact that we are unable to find an Illinois opinion construing that phrase in the context of the Act, we advert to case law from foreign jurisdictions. Initially, it is noted that this State’s appellate court has determined that Pennsylvania’s unemployment compensation statute is similar to the Illinois enactment and has relied upon Pennsylvania jurisprudence in adjudicating cases concerning “voluntary leaving” under section 601(A). See, e.g., Minfield v. Bernardi (1984), 122 Ill. App. 3d 97, 102-03; Keystone Steel & Wire Division, Keystone Consolidated Industries v. Department of Labor (1976), 37 Ill. App. 3d 704, 706-08.

The Pennsylvania Supreme Court has defined “cause of a necessitous and compelling nature,” which is synonymous with “good cause,” in the following terms:

“ ‘they connote, as minimum requirements, real circumstances, substantial reasons, objective conditions, palpable forces that operate to produce correlative results, adequate excuses that will bear the test of reason, just grounds for action, and always the element of good faith.’ ” (Deiss v. Unemployment Compensation Board of Review (1977), 475 Pa. 547, 553, 381 A.2d 132, 135, quoting Sturdevant Unemployment Compensation Case (1946), 158 Pa. Super. 548, 556, 45 A.2d 898, 903.)

The court in Deiss stated also:

“ ‘ “good cause” for voluntarily leaving one’s employment (i.e. that cause which is necessitous and compelling) results from circumstances which produce pressure to terminate employment that is both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner.’ ” Deiss v. Unemployment Compensation Board of Review (1977), 475 Pa. 547, 553, 381 A.2d 132, 135, quoting Taylor v. Unemployment Compensation Board of Review (1977), 474 Pa. 351, 358-59, 378 A.2d 829, 832-33; accord, Genetin v. Commonwealth Unemployment Compensation Board of Review (1982), 499 Pa. 125,128 n.l, 451 A.2d 1353,1355 n.l.

A recent Oregon opinion has said that good cause “must be such as would compel a reasonably prudent person to quit.” Stated in slightly different terms, the test is whether such cause justifies an employee in voluntarily departing the ranks of the employed and in joining the ranks of the unemployed. Waide v. Employment Division (1979), 38 Ore. App. 121, 125-26, 589 P.2d 1138, 1140.

This court has recognized “that good cause may consist of a reasonable subjective fear of harm to an employee’s health, even absent the advice of a physician” (see Ill. Rev. Stat. 1981, ch. 48, par. 431(B)(1)). (Davis v. Board of Review (1984), 125 Ill. App. 3d 67, 72, citing Rabago v. Unemployment Insurance Appeals Board (1978), 84 Cal. App. 3d 200, 210-11, 148 Cal. Rptr. 499, 506-07.) It is clear, also, that an employee has good cause for terminating his employment if his assigned work jeopardizes his health or safety. (Stormer v. Commonwealth Unemployment Compensation Board of Review (1977), 32 Pa. Commw. 220, 224, 378 A.2d 1037, 1039.) In order to demonstrate that health is a compelling reason for terminating employment, the claimant must:

“(1) offer competent testimony that adequate health reasons existed to justify termination at the time of termination; (2) have informed the employer of the health problem, and (3) be available, where a reasonable accommodation is made by the employer, for work which is not inimical to his health.” (Dornblum v. Commonwealth Unemployment Compensation Board of Review (1983), 77 Pa. Commw. 547, 549, 466 A.2d 747, 749; see Genetin v. Commonwealth Unemployment Compensation Board of Review (1982), 499 Pa. 125, 130-31, 451 A.2d 1353, 1356. See generally Deiss v. Unemployment Compensation Board of Review (1977), 475 Pa. 547, 553, 381 A.2d 132, 135; Ruckstuhl v. Commonwealth Unemployment Compensation Board of Review (1981), 57 Pa. Commw. 302, 305, 426 A.2d 719, 721.)

The claimant must adduce some medical evidence to support the allegations concerning the alleged health problems, and the failure to satisfy any one of the three conditions explicated above will bar a claim for unemployment compensation (Dornblum v. Commonwealth Unemployment Compensation Board of Review (1983), 77 Pa. Commw. 547, 549, 466 A.2d 747, 749). Ruckstuhl v. Commonwealth Unemployment Compensation Board of Review (1981), 57 Pa. Commw. 302, 305, 426 A.2d 719, 721.

In the case at bar, the plaintiff merely notified his supervisor of his intention to quit; he failed to provide his employer with any reason for his departure and did not report the purportedly unsafe conditions to his employer. The plaintiff did not seek medical treatment or advice, and his fear for his health was predicated solely upon what had happened to two fellow workers. In light of this conduct, he was not entitled to unemployment benefits under section 601(A), for he did not satisfy his burden of establishing good cause attributable to his employer based on health reasons. His conduct did not meet the standard of ordinary common sense; in short, he did not act in good faith. (See, e.g., Moore v. Doyal (La. App. 1970), 240 So. 2d 17; Brown v. Unemployment Compensation Board of Review (1952), 170 Pa. Super. 186, 85 A.2d 605.) This is not a case in which the plaintiff informed his employer of a potential health problem and submitted documentary evidence to support the claim. Cf. Dornblum v. Commonwealth Unemployment Compensation Board of Review (1983), 77 Pa. Commw. 547, 549, 466 A.2d 747, 749.

The well-settled rule is that although the mere possibility of obtaining another job is an insufficient basis upon which to demonstrate the existence of good cause to terminate employment (Kellenbenz v. Commonwealth Unemployment Compensation Board of Review (1983), 71 Pa. Commw. 468, 470, 454 A.2d 1202, 1203; O’Connor v. Commonwealth Unemployment Compensation Board of Review (1980), 50 Pa. Commw. 573, 577, 413 A.2d 458, 460; Unemployment Compen sation Board of Review v. Pennsylvania Power & Light Co. (1976), 23 Pa. Commw. 220, 223, 351 A.2d 698, 699; Eckenrod v. Commonwealth Unemployment Compensation Board of Review (1974), 15 Pa. Commw. 166, 170, 325 A.2d 320, 322; Kowal v. Unemployment Compensation Board of Review (1961), 196 Pa. Super. 621, 622, 176 A.2d 151, 152; see Putman v. Employment Division (1978), 36 Ore. App. 267, 269-70, 584 P.2d 348, 349; Cunningham v. Unemployment Compensation Board of Review (1976), 25 Pa. Commw. 134, 137, 358 A.2d 147, 149), the receipt and acceptance of a firm offer of employment does constitute good cause for terminating the employee’s current employment (Union Bank & Trust Co. v. Commonwealth Unemployment Compensation Board of Review (1978), 38 Pa. Commw. 137, 139-40, 391 A.2d 1342, 1343; see Eckenrod v. Commonwealth Unemployment Compensation Board of Review (1974), 15 Pa. Commw. 166, 170, 325 A.2d 320, 322). (Township of North Huntingdon v. Commonwealth Unemployment Compensation Board of Review (1982), 69 Pa. Commw. 187, 189, 450 A.2d 768, 769; Steinberg v. Commonwealth Unemployment Compensation Board of Review (1978), 34 Pa. Commw. 294, 297, 383 A.2d 1284, 1286.) In order to satisfy the good cause requirement, the offer of employment must be definite. Township of North Huntingdon v. Commonwealth Unemployment Compensation Board of Review (1982), 69 Pa. Commw. 187, 189, 450 A.2d 768, 769.

The only evidence the plaintiff presented to the referee during the administrative hearing with respect to the matter of a job offer was that he felt he had another job with Amoco Oil at the time he terminated his current position with McCartin; however, the new job failed to materialize. The referee found that the plaintiff hoped to start a new job at the time of his departure from McCartin, but the new position did not come into existence.

It is clear that the plaintiff’s testimony failed to establish that his anticipated position with Amoco Oil amounted to a firm job offer that was definite. (Cf. Township of North Huntingdon v. Commonwealth Unemployment Compensation Board of Review (1982), 69 Pa. Commw. 187, 450 A.2d 768 (offer of employment included a specific position at a fixed rate of pay and with an established commencement date); Union Bank & Trust Co. v. Commonwealth Unemployment Compensation Board of Review (1978), 38 Pa. Commw. 137, 391 A.2d 1342 (claimant’s son assured her of a job with his company, and she worked at the position for 2V2 months without compensation); Steinberg v. Commonwealth Unemployment Compensation Board of Review (1978), 34 Pa. Commw. 294, 296, 383 A.2d 1284, 1285 (the claimant terminated his position and accepted a higher paying job elsewhere, where he worked until his position was eliminated).) Rather, it appears from the record in this case that the referee was justified in concluding that the reason the plaintiff gave for leaving his position with McCartin was the mere possibility or expectation of securing other employment with Amoco Oil. Given the facts of this case, the plaintiff’s representation in this regard did not constitute good cause for terminating his employment with McCartin. See, e.g., Putman v. Employment Division (1978), 36 Ore. App. 267, 584 P.2d 348; Cunningham v. Unemployment Compensation Board of Review (1976), 25 Pa. Commw. 134, 358 A.2d 147; Eckenrod v. Commonwealth Unemployment Compensation Board of Review (1974), 15 Pa. Commw. 166, 325 A.2d 320; Kowal v. Unemployment Compensation Board of Review (1961), 196 Pa. Super. 621, 176 A.2d 151.

Because the findings and decision of the administrative agency in this cause are not contrary to the manifest weight of the evidence, the trial court erred in reversing the determination of the Board that the plaintiff had not established his entitlement to unemployment insurance benefits under the provisions of section 601(A) of the Act.

For the reasons stated, the judgment of the trial court is reversed.

Reversed.

HOPE and STROUSE, JJ., concur.


author: VERGERONT, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Marquis O. Gilliam, Defendant-Appellant.

    Court of Appeals

      No. 99-1262-CR.

      Submitted on briefs February 11, 2000.

    Decided June 15, 2000.

    2000 WI App 152
    (Also reported in 615 N.W.2d 660.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert B. Rondini of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Jeffrey J. Kassel, assistant attorney general.
    Before Eich, Vergeront and Roggensack, JJ.

       Petition to review denied.

   VERGERONT, J.

¶ 1. This appeal raises a single issue: whether the circuit court erred in denying defense counsel's motion to remove a juror for cause on the ground of subjective bias. Marquis Gilliam seeks reversal of the judgment of conviction for first-degree intentional homicide while using a dangerous weapon in violation of WlS. Stat. §§ 940.01(1) and 939.63(3) (1997-98), contending that he should not have had to use a peremptory strike to remove Juror Marc Hagen from the jury, because Hagen's answer to defense counsel's question showed manifest bias. We conclude the trial court's finding that defense counsel failed to establish that Hagen was subjectively biased is not clearly erroneous, and we therefore affirm.

BACKGROUND

¶ 2. After the prospective jurors were sworn and each had given personal background information, the court informed them of the charge against Gilliam: causing death with intent to kill while armed with a dangerous weapon. The court questioned the jurors on their ability to understand and follow various instructions and explained the law on the rights of the accused. The court also inquired into the jurors' acquaintance with persons involved in the trial and their familiarity with the case. Following the prosecutor's questioning, the defense counsel began his' voir dire, which included explaining to the jury that the case involved an incident at an after-hours club; the man who died was a bouncer; he died from gunshot wounds, having been shot four times; and self-defense was an issue in the case. This exchange then occurred:

[DEFENSE COUNSEL]: You're going to obviously find out something based on what I just told you. That Marquis Gilliam had a gun. Is there anyone on the jury panel who feels that the fact that he had a gun with him when this happened means that he must be guilty of some sort of criminal offense?
[DEFENSE COUNSEL]: Yes? Yes, Mr. Peritz. You think the fact that he had a gun makes him guilty of a crime?
JUROR PERITZ: Yes, I do.
[DEFENSE COUNSEL]: The crime is — I just have to follow up. Given that that's how you feel and recognizing that the charge here is a homicide charge, first degree intentional homicide, do you — And that's the only charge. You're only going to be talking about a homicide charge in this case.
Do you feel that you shouldn't be sitting as a juror in this case and do you think that you can listen to the evidence on that charge, a homicide charge, and put aside your feelings on the [sic] whether he's guilty of a gun offense just for having a gun? It's a difficult question?
JUROR PERITZ: I'm not sure because of the fact that he wasn't protecting himself. I'm assuming he did not live there.
[DEFENSE COUNSEL]: It's an after hours club. Nobody lived there.
JUROR PERITZ: Right.
[DEFENSE COUNSEL]: Okay.
JUROR PERITZ: I'd be apprehensive to answer yes to that.
[DEFENSE COUNSEL]: All right. The question is —And I appreciate your honesty because that's the purpose of this is to, you know — Do you think — and I can't answer this for you. You're the only one who can answer for yourself. Do you — Does that fact by itself mean that you then would have difficulty following the judge's instruction saying the State has to prove the elements of this offense beyond a reasonable doubt? Could you fairly do that, or does your honest feeling, just the fact that he was there with the gun, create in your mind a presumption of guilt or—
JUROR PERITZ: I believe I'd find him guilty.
[DEFENSE COUNSEL]: Is there anyone on the jury panel that feels the same way?
[DEFENSE COUNSEL]: ... Mr. Hagen . . . You would answer the question the same way as Mr. Peritz?
JUROR HAGEN: You shouldn't carry a gun in your pocket anyway. It's illegal. I own guns. I own a whole collection, but I don't carry them.
[DEFENSE COUNSEL]: So your answer would be the same as Mr. Peritz?
JUROR HAGEN: Probably.
[DEFENSE COUNSEL]: Anyone else? Mr. Vogel?
JUROR VOGEL: If he had a license to carry a concealed weapon —
[DEFENSE COUNSEL]: There are no such licenses in Wisconsin. It's agreed he did not have a license.
JUROR VOGEL: Then he shouldn't have been carrying a gun.
[DEFENSE COUNSEL]: I understand that. Mr. Peritz was very honest, and he said that fact would cause him to think that Mr. Gilliam was guilty of a crime and, therefore, he'd be more likely to vote guilty in this case. Do you feel the same way?
JUROR VOGEL: I don't know. I think I'd have to hear the evidence.
[DEFENSE COUNSEL]: Okay.
JUROR SIMONS: It was like a two-part question. You asked if I thought it was illegal for him to be carrying a gun. Yes, I do. But I think I could listen to the evidence that's applied and reason from that. Follow the judge's order.
[DEFENSE COUNSEL]: Okay. We agree that, yeah, he committed that crime. Now, we are here to try the homicide. You'll listen to the evidence and the law on the homicide charge?
JUROR SIMONS: Okay.
[DEFENSE COUNSEL]: Who on the jury panel agrees with Ms. Simons?
JUROR HARPER: What was the question?
[DEFENSE COUNSEL]: Ms. Simons said she may think he's guilty of a crime for having the gun, but she'd view the facts and the evidence on a homicide case independently. One doesn't make him being guilty of— One doesn't make him being guilty of the other.
JUROR HARPER: May I ask a question of you?
[DEFENSE COUNSEL]: Sure.
JUROR HARPER: If it's not a crime to carry a gun —Are you asking us do we think he's wrong to carry a gun? Is that leading us to say he's doing something wrong when it's wrong?
[DEFENSE COUNSEL]: I can't instruct you on the law.
JUROR HARPER: Well, you just did.
[DEFENSE COUNSEL]: All right. If it was a crime to carry a gun—
JUROR HARPER: That's hypothetical. Is it or is it not?
[DEFENSE COUNSEL]: Well, the judge — It depends on the circumstances. That case isn't here.
JUROR HARPER: I said "if." Is it the law or not in Wisconsin?
[DEFENSE COUNSEL]: It's illegal to carry a concealed weapon, but not to have one. But I'm — What my concern is, is somebody on the jury panel who thinks that, "Hey, he had a gun and he shouldn't have had the gun and it's probably illegal for him to have a gun; therefore, he must be guilty of the homicide."
JUROR HARPER: Those are two different questions. If you're nesting one inside the other, you're leading us to give you an answer, one, and extrapolating from that and asking us both. I think I —
[DEFENSE COUNSEL]: I think I follow. You're being very precise. I appreciate that. If he committed a gun — Let's say we agree he committed a gun offense by having the gun, whatever the circumstances were. And if you believe that's true — We don't dispute that. Is that — Does that in your mind make him guilty of the homicide?
JUROR HARPER: Have to listen to the evidence on the homicide. Those are two different questions. They may be somewhat related, except that it isn't a law in Wisconsin, about carrying a gun, unless it's concealed.
[DEFENSE COUNSEL]: What if it was concealed? If it was concealed so, therefore, it was a law violation.
JUROR HARPER: That's a different law. That's a homicide. This is carrying a gun.
[DEFENSE COUNSEL]: Exactly. That's your view of what your job is here, right? Who agrees with Harper? Okay. A lot of people, but not everyone. Who doesn't agree with Harper? Now, nobody wants to take — Who doesn't understand? All right, all right. Let's •— We need to end here. Is there anybody on this jury panel that thinks they understand the law of self-defense?
(No response)
[DEFENSE COUNSEL]: Good. You'll follow the laws of whatever the judge tells you?
(No response)

¶ 3. Defense counsel continued with voir dire on other issues, and, at the completion of the questioning, the court held a hearing in chambers to take up motions to strike jurors for cause, including the defense motions to remove Peritz and Hagen. Defense counsel argued that Peritz said he was predisposed to convict Gilliam of homicide and Hagen agreed with Peritz. The prosecutor responded that he was concerned about Per-itz's hearing and that defense counsel's question was confusing and he did not think the jurors understood. The court granted the motion as to Peritz but denied it as to Hagen:

THE COURT: See, I don't think that's what he said, and I think that's where [the prosecutor] is coming from. I think that — I really think that those jurors got very confused until the one juror, I think, straightened some people out. However, I would grant the request. Peritz. That is the name?
[DEFENSE COUNSEL]: Number 15. Ferd Peritz, Number 15.
THE COURT: I would grant the request. And part of it is that I'm watching him when some general questions were asked that might have rehabilitated him, and he just wasn't responding. Maybe he has a hearing problem. But I think that, based on the record that's been made, there is a basis for striking him for cause.
[DEFENSE COUNSEL]: Then the same argument with Mr. Hagen, who agreed with—
THE COURT: Well, I don't know that it is exactly the same argument, but I'll listen closely to what the attorneys have to say.
[DEFENSE COUNSEL]: I reiterate the argument I made, because I think it's the same issue.
[PROSECUTOR]: I believe that he did not respond in a fashion consistent with having his mind made up and unwilling to listen to the instruction. He was giving a hypothetical, which is interestingly—
[PROSECUTOR]: Interestingly, we've been discussing with them whether carrying a gun is illegal, but he is charged with a crime while possessing a dangerous weapon, which makes it illegal. So we've actually debated something they're not going to be instructed on yet. We were going to instruct to a corollary on that hypothetical. I think the whole process has been confusing, and I'm sorry it took up as much time as he did. I don't think Mr. Hagen answered in a fashion in which he should be excused for cause, and I think the Court should deny that request.
THE COURT: Denied.

¶ 4. Gilliam used one of his seven peremptory strikes to remove Hagen, and he was not a member of the jury that heard the case against Gilliam and returned a guilty verdict.

DISCUSSION

¶ 5. A defendant's right to receive a fair trial by a panel of impartial jurors is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, and Art. I, § 7 of the Wisconsin Constitution, as well as principles of due process. See State v. Faucher, 227 Wis. 2d 700, 715, 596 N.W.2d 770 (1999). To be impartial, a juror must be indifferent and capable of basing his or her verdict upon the evidence developed at trial. See id. The requirement that a juror be indifferent is codified in Wis. Stat. § 805.08(1). The statute directs that "[i]f a juror is not indifferent in the case, the juror shall be excused." Id. Jurors are presumed impartial, and the challenger to that presumption bears the burden of proving bias. See State v. Louis, 156 Wis. 2d 470, 478, 457 N.W.2d 484 (1990). If the circuit court errs in failing to dismiss a challenged juror for cause and as a result the defendant uses a peremptory strike to remove that juror, the defendant is entitled to a reversal and a new trial. See State v. Ramos, 211 Wis. 2d 12, 24-25, 564 N.W.2d 328 (1997); see also State v. Ferron, 219 Wis. 2d 481, 504-05, 579 N.W.2d 654 (1998) (declining State's request to overrule Ramos).

¶ 6. The supreme court recently categorized and defined the three types of juror bias: subjective, objective and statutory. See Faucher, 227 Wis. 2d at 716. The parties agree that this case presents a question of subjective bias. "Subjective bias" refers to the prospective juror's state of mind and is "bias that is revealed through the words and the demeanor of the prospective juror." Id. at 717. A trial court's factual finding that a prospective juror is or is not subjectively biased will be upheld unless it is clearly erroneous. See id. at 718.

¶ 7. Gilliam contends the record demonstrates that Hagen is subjectively biased because he stated he would probably find Gilliam guilty of homicide based on the fact that he was in possession of a gun at the time of the victim's death. The State responds that it is not clear from a complete reading of the record what Hagen's response of "probably" means, and that, given this ambiguity and our standard of review, we must affirm the circuit court's decision.

¶ 8. Because we are to affirm the circuit court's ruling on subjective bias unless it is clearly erroneous, we look first to the court's explanation for its ruling. Although the court denied the motion on Hagen immediately following the prosecutor's argument without an explanation at that time, the court's earlier comments reveal its view that the jurors were confused by defense counsel's questions until "the one juror... straightened some people out." We treat this as a finding of fact and we conclude it is supported by the record. We cannot agree with Gilliam that the record supports only one reasonable inference — that Hagen understood defense counsel intended to ask him whether he would find Gilliam guilty of homicide simply because he possessed a gun.

¶ 9. Defense counsel's first question to which Peritz responded, asked whether any juror felt the fact that Gilliam had a gun meant he was guilty of "some sort of offense," instead of specifically referring to the first-degree intentional homicide charge in this case. His follow-up questions to Peritz were compound, used shifting phraseology, and contained digressions. He then asked Hagen whether he agreed with Peritz only by referring to Peritz's answer, without repeating a specific question. Hagen's first comments to defense counsel had to do with the illegality of carrying a gun in one's pocket, which was not something Peritz had mentioned; Hagen was apparently picking up on defense counsel's reference, in an earlier question to Peritz, to a "gun offense just for having a gun."

¶ 10. Defense counsel did not question Hagen further after he answered "probably" to the question whether he would answer an unspecified question the same as Peritz did. We therefore have no explanation from Hagen of what he understood defense counsel to be asking, or what he meant by his answer. However, we can tell from the record that at least three other jurors had questions about what defense counsel was asking. The next juror who spoke after Hagen commented initially on the legality of carrying a gun, and it was not until after Simmons said that defense counsel was "asking a two part question" and after Harper asked a series of questions in an attempt to understand what question defense counsel was posing, that defense counsel framed the question in a precise, complete way. We reject Gilliam's contention that, in evaluating the record, it is irrelevant how jurors after Hagen responded to defense counsel's questioning on the same topic. If other jurors had trouble understanding what defense counsel was getting at, it is reasonable to infer that Hagen had difficulty as well.

¶ 11. After defense counsel received an answer from Harper which showed Harper understood the question and could separate for himself the issue of whether Gilliam should have been carrying a gun from the issue whether Gilliam committed homicide with the gun, defense counsel asked the jurors if they agreed with Harper. Defense counsel observed "A lot of people, but not everyone," then asked "Who doesn't agree with Harper?" However, he did not indicate for the record who was not in agreement with Harper, although it appears from defense counsel's immediate shift to another topic that no one raised a hand signifying disagreement.

¶ 12. We recognize that in the published cases concerning subjective bias, typically a juror has expressed a prejudice or predilection, and the issue is whether the juror's answers to follow-up questions show the juror is able and willing to set that aside and listen to the evidence and the instructions of the court. See, e.g., Ferron, 219 Wis. 2d at 487-89, 498. The circuit court's superior ability to judge the demeanor and credibility of jurors in answering the questions is the basis for the very deferential standard of review of determinations of subjective bias. See Faucher, 227 Wis. 2d at 718. In this case the issue is different — whether the juror has expressed a prejudice or predilection in the first instance. However, on this issue as well, the circuit court has a better ability than this court to assess the juror's response. With the complete transcript before us and the leisure to study defense counsel's questions and the jurors' answers, we can understand the question defense counsel intended to pose to the jurors. However, the circuit court, who was there at the time and heard defense counsel and saw and heard the jurors, has a better vantage point than this court from which to judge if and how defense counsel's questions were understood by the jurors, which is the critical issue. In addition, the court saw which jurors raised their hands to the questions about who did and who did not agree with Harper, something we cannot tell from the record.

¶ 13. We do not agree with Gilliam that because the circuit court granted the motion to remove Peritz, it erred in not doing the same for Hagen. The court's comments indicate that, while it did view the questions to Peritz as well as to Hagen confusing, it did not view the questioning of the two the same in all respects, and that is supported by the record. Defense counsel asked Peritz several questions, and received answers from him that gave more information about his thinking than defense counsel received from Hagen. In addition, the record shows the court was concerned about Per-itz's hearing, based on the court's own observations.

¶ 14. Gilliam points out that the prosecutor did not object to defense counsel's confusing or ambiguous questions. However, the burden of establishing a juror's bias is on the party moving to remove a juror because of bias. See Louis, 156 Wis. 2d at 478. In order to establish bias, the questions to the jurors must be precise, and ambiguities must be clarified with followup questions. That did not happen with respect to Hagen. Accordingly, we conclude the circuit court did not err in finding that Gilliam had not established Hagen was subjectively biased.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise noted.

       Wis. Stat. § 805.08(1) provides as follows:
      Jurors. (1) Qualifications, examination. The court shall examine on oath each person who is called as a juror to discover whether the juror is related by blood or marriage to any party or to any attorney appearing in the case, or has any financial interest in the case, or has expressed or formed any opinion, or is aware of any bias or prejudice in the case. If a juror is not indifferent in the case, the juror shall be excused. Any party objecting for cause to a juror may introduce evidence in support of the objection. This section shall not be construed as abridging in any manner the right of either party to supplement the court's examination of any person as to qualifications, but such examination shall not be repetitious or based upon hypothetical questions.

       The State presents alternative arguments, but it is unnecessary to address them.

       We emphasize here the importance of the circuit court clearly and fully explaining its reasoning for finding that a juror is or is not subjectively or objectively biased, since the appellate court has a deferential standard of review with respect to both categories of bias. See State v. Faucher, 227 Wis. 2d 700, 718-21, 596 N.W.2d 770 (1999) (discussing the standard of review for each). Such an explanation by the circuit court may avoid appeals on the issue, will facilitate our review if there is an appeal, and will avoid' reversals because we are unable to understand why the trial court did what it did.

       The court indicated it was watching Peritz when "general questions" were asked, and we presume it was watching the other jurors as well.