author: JUSTICE JIGANTI PRESIDING JUSTICE LINN,

text:
    GEORGE W. DUNNE, President of the Board of Commissioners and Chief Executive Officer of the County of Cook, et al., Plaintiffs-Appellees, v. THE COUNTY OF COOK, Defendant (Carl H. Hansen et al., Defendants-Appellants).
    First District (4th Division)
    No. 83 — 661
    Opinion filed April 12, 1984.
    LINN, P.J., dissenting.

      Jerome H. Torshen and James T. Ryan, Special State’s Attorneys, and Timothy R. Conway, of Greenberger, Krauss & Jacobs, Chartered, both of Chicago (Abigail K. Spreyer, of counsel), for appellants.
    Jerold S. Solovy, Special State’s Attorney, and Barry Sullivan and Joel T. Pelz, both of Jenner & Block, both of Chicago, for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

The president of the county board of Cook County possesses the statutory authority to veto ordinances enacted by the county board. (Ill. Rev. Stat. 1981, ch. 34, par. 908.) Also pursuant to statute, four-fifths of the members elected to the board may pass an ordinance over the president’s veto. (Ill. Rev. Stat. 1981, ch. 34, par. 908.) On January 17, 1983, the board approved an ordinance which changed the majority vote necessary to override an executive veto from four-fifths to three-fifths. The ordinance specifically stated that it was to supersede the State statute which was enacted in 1887 and which established the four-fifths override requirement. (Ill. Rev. Stat. 1981, ch. 34, par. 908.) The board’s purported authority to enact the ordinance stems from the home rule provisions of the 1970 Illinois Constitution. See generally Ill. Const. 1970, art. VII, sec. 6.

On January 20, 1983, the president of the county board, George Dunne, vetoed the override ordinance. On January 25, 1983, 14 of the 17 members of the board, a four-fifths majority, voted to enact the ordinance over the veto of the president. On January 26, 1983, Dunne filed a declaratory judgment action in the circuit court of Cook County, seeking to find the ordinance unconstitutional under the 1970 Illinois Constitution. Dunne, who is also a member of the board, and two other commissioners are the plaintiffs (collectively referred to as the President) in this action; the defendants (collectively referred to as the Board) are the 14 commissioners who voted in favor of the override ordinance. On March 14, 1983, the trial court granted the President’s motion for summary judgment, finding that the ordinance was an unconstitutional enactment that was therefore “null and void.” This appeal followed.

The constitutional powers of Cook County are derived from article VII of our State’s constitution. Under section 6(a) of article VII, Cook County is a home rule unit which “*** may exercise any power and perform any function pertaining to its government and affairs ***.” These general powers are modified by certain other provisions of section 6. The first issue in this appeal revolves around section 6(f) which provides generally that home rule units may only “adopt, alter or repeal a form of government” by referendum. The President contends that the ordinance changing the majority vote necessary to override an executive veto from four-fifths to three-fifths is a change in the form of government and consequently may only be accomplished by a referendum. A referendum was not conducted to approve the ordinance at issue in the case at bar.

The Illinois Supreme Court has helped to define the constitutional meaning of the term “form of government” in two cases decided within IV2 months of each other. As an overview to the following discussion, one of the cases held that a change in the form of government had occurred (Pechous v. Slawko (1976), 64 Ill. 2d 576, 357 N.E.2d 1144), while the other case found that such a change was not present (Allen v. County of Cook (1976), 65 Ill. 2d 281, 357 N.E.2d 458).

In the Pechous case, a statute provided that the mayor of the city of Berwyn possessed the authority to appoint and remove certain village officers. (Ill. Rev. Stat. 1975, ch. 24, pars. 3 — 7—1, 3 — 7—2, 3— 7 — 5.) The city council enacted an ordinance which removed those officers and appointed their replacements. The supreme court found that the council’s attempt to transfer the appointment and removal power from the executive to the legislative branch of government constituted a change in the form of government under section 6(f).

In reaching its holding, the court rejected the council’s argument that a change in the form of government under section 6(f) occurs only when the “basic nature of government” is altered. Rather, the court observed that “the Constitution does not speak of changes in ‘the basic nature of government’ ” (Pechous v. Slawko (1976), 64 Ill. 2d 576, 581, 357 N.E.2d 1144, 1148), and cited a Report of the Committee on Local Government of the Constitutional Convention of 1970 which stated in part that “ '*** more than the manner of electing the county board is included within the meaning of “form of government.” It also includes the relative powers and functions of the county board and the chief executive officer of the county. ***.’ ” Pechous v. Slawko (1976), 64 Ill. 2d 576, 582, 357 N.E.2d 1144,1148.

The Committee Report cited by the court further stated that the term “form of government” contemplates that the General Assembly will provide for various patterns of county and municipal administrative organization. The Pechous court found that such a statutory pattern applied to the form of municipal government in Berwyn. Berwyn was an incorporated municipality governed under article 3 of the Illinois Municipal Code. (Ill. Rev. Stat. 1973, ch. 24, art. 3.) Article 3 provided for a statutory pattern where the mayor was the chief executive officer of the municipality. (Ill. Rev. Stat. 1973, ch. 24, par. 3— 4 — 4.) A municipality could elect by referendum to alter this pattern of government and become either a “managerial form of municipal government” under article 5 of the Code or a “commission form of municipal government” under article 4. (Ill. Rev. Stat. 1973, ch. 24, arts. 4, 5.) Berwyn had not elected either one of these alternative patterns of government. As the court stated in Pechous, “[different relationships between the legislative and executive branches of municipal government are provided” under articles 3, 4 and 5 of the Code. (Pechous v. Slawko (1976), 64 Ill. 2d 576, 583, 357 N.E.2d 1144, 1148.) Under article 3, the mayor possessed the power of appointment and removal. Therefore, the court found that under the statutory pattern which governed Berwyn it would be a change in the form of government for the city council to transfer the appointment power from the executive to the legislative branch of government. Consequently, the Pechous decision was predicated upon a statutory pattern established by the legislature which defined the relative powers and functions of the executive and legislative branches.

Dumke v. Anderson was a companion case which was consolidated with the Pechous appeal. Dumke v. Anderson concerned an attempt by the board of trustees of the village of Oak Lawn to appropriate to itself the power to appoint a legal advisor for the village. The village had previously adopted a managerial form of government under article 5 of the Municipal Code and one significant characteristic of such a form of government is that the municipal manager is the administrative head of the municipal government. (Ill. Rev. Stat. 1975, ch. 24, par. 5 — 3—7.) The board of trustees had only legislative powers; it had no powers with respect to administration. (Ill. Rev. Stat. 1975, ch. 24, par. 5 — 3—6.) Although the statute did not specifically provide that the village manager possessed the power of appointment, the supreme court found that the board’s attempt to appoint a legal advisor encroached upon the authority of the village manager. In support of its conclusion, the court cited 56 Am. Jur. 2d Municipal Corporations sec. 186 (1971), which states that a city council in a city manager form of government does not and should not attempt to dictate or confirm the appointments of city officers and employees. The power to appoint a legal advisor, therefore, was an element of the form of government in the pattern adopted by the legislature, even though the statute did not specifically so provide.

Allen v. County of Cook (1976), 65 Ill. 2d 281, 357 N.E.2d 458, was handed down by the supreme court shortly after the Pechous decision. In Allen, an existing State statute provided that sums of money in excess of $2,500 could not be appropriated absent a two-thirds vote of the members comprising the Board of Commissioners of Cook County. The Board enacted an ordinance which was “specifically intended to supersede” the statute and provided that sums in excess of $5,000 could not be appropriated unless a simple majority, as opposed to a two-thirds majority, of the Board members approved the appropriation. At the time of the action, the Board was composed of 10 members who were elected from the city of Chicago and six members who were elected from areas of Cook County outside of Chicago. This two-district method of election was established in the 1870 Illinois Constitution (Ill. Const. 1870, art. X, sec. 7) and later preserved in the 1970 Constitution (Ill. Const. 1970, art. VII, sec. 3(c)). The six suburban members of the Board argued that the new appropriation ordinance changed the relative powers between the city and suburban commissioners because, in contrast to actions allowable under the State statute, substantial amounts of money could be appropriated under the ordinance without the consent of the suburban members. Therefore, the suburban commissioners contended that a change in the form of government had occurred under section 6(f). However, the supreme court rejected this argument and found that because neither the two-district method of electing commissioners from Chicago and from outside of Chicago nor the number of Board members to be elected from those districts was altered, adoption of the ordinance did not constitute a change in the form of government under section 6(f).

Our examination of Pechous and Allen reveals that while the supreme court.has never established a definitive standard as to what actions constitute a change in the form of government under section 6(f), several guidelines have been offered. Both cases suggest certain actions that do not fall within the ambit of a change in the form of government. Under Allen, it is not a change in the form of government for a legislative branch of government, such as the Board, to alter the relative voting powers between its own city and suburban commissioners in certain instances. Pechous states that a change in the form of government does not necessarily mean that “the basic nature of government” has to be altered. Both cases also offer suggestions regarding actions which would in fact constitute a change in the form of government under section 6(f). Allen states that such a change would be accomplished if the two-district method of electing commissioners or the number of commissioners elected from the city and outside of the city was altered. Pechous observes that “ '*** the relative powers and functions of the county board and the chief executive officer of the county ***’ ” must be considered. (Pechous v. Slawko (1976), 64 Ill. 2d 576, 582.) We further learn from Pechous that a change in the form of government can occur when a legislative branch of a home rule unit attempts to transfer to itself the powers previously possessed by the unit’s chief executive officer. A related question which was controlling under Pechous is whether- the legislature has enacted a statutory scheme which distinguishes one pattern of government from another. This discussion leads us now to the manner in which Pechous and Allen affect the facts presented in the case at bar.

Both cases consolidated in Pechous and the case now before us concern specific statutory schemes where the legislature set a statutory pattern establishing the relationship between the executive and legislative branches of government. In Pechous, the power of the executive officer to appoint and remove certain officers was an essential distinction between alternative patterns of municipal government that could be chosen by a municipality. Similarly, in the case at bar, two separate statutes have been enacted by the legislature, one of which deals with Cook County and one of which addresses counties other than Cook County. (Ill. Rev. Stat. 1981, ch. 34, par. 701 et seq.; Ill. Rev. Stat. 1981, ch. 34, par. 901 et seq.) Both statutory patterns concern in many respects the relationship between the relative duties and powers possessed by a county’s legislative body and its chief executive officer. The statute addressing counties other than Cook County clearly excludes Cook County and is prefaced as “An Act to provide for the county executive form of government in counties other than the County of Cook, to define the powers, duties and functions of the chief executive officer of counties under the county executive form of government ***.” (Emphasis added.) While the statute concerned with Cook County provides for a four-fifths override requirement, the statute dealing with counties other than Cook County sets out a three-fifths override provision. (Compare Ill. Rev. Stat. 1981, ch. 34, par. 710, with Ill. Rev. Stat. 1981, ch. 34, par. 908.) Where in Pechous the executive appointment power was an essential element which distinguished one type of municipal form of government from another, the four-fifths override requirement in the instant case appears to be one means by which the legislature set Cook County apart from other counties. Pechous found that where a pattern of government had been established by the legislature and then was altered by a legislative branch of a home rule unit, a change in the form of government had occurred under section 6(f). Similarly, in the case now before us, a pattern of government was established for Cook County which was distinguishable from the patterns set by the legislature for other counties in Illinois. The Board attempted to alter that pattern by enacting the override ordinance. By attempting to change the pattern set by the legislature which defined the relative powers between the executive and legislative branches of county government, we believe that the Board’s action constituted a change in the form of government under Pechous.

The Board nonetheless argues that the override ordinance was not a change in the form of government under section 6(f). Specifically, the Board places primary emphasis upon Allen and argues that the “essential structure of Cook County government” refers only to the two-district method of board elections and the number of board members to be elected from each district. The Board also contends that the alteration of the President’s veto power did not result in the abolition of the veto but was rather a reasonable action that preserved both the veto power and the balance of powers between the city and suburban commissioners. Under a close reading of Allen and Pechous, we fail to find the Board’s arguments to be convincing.

It is true that Allen speaks of the two-district method of election and the number of board members to be elected from each district as one element of the form of government of Cook County. However, Allen was concerned only with a dispute concerning the legislative powers of the Board itself and the court had no reason to discuss the relative powers of the Board vis a vis the powers of the county’s chief executive officer. We cannot conclude from Allen, as the Board so urges, that the chief executive officer of Cook County plays no role within the form of government of Cook County. Thus, while the court delineated one element of the form of government in Cook County, it by no means set forth a blanket pronouncement that Cook County’s form of government consists only of the manner in which the Board is elected. In Allen, the supreme court had no reason to address the other elements comprising the form of government in Cook County.

While Allen concerned the Board’s attempt to alter its own internal powers, Peehous addressed the balance of historic tensions connecting the legislative and executive branches of county government. In the case at bar, as in Peehous, we also encounter a situation where the legislative branch of government has taken action to alter the relative powers possessed by the chief executive officer. The Board contends that their action was reasonable because the ordinance provided for a presidential veto that was similar to those possessed by other executive officers in Illinois and that their action did not border upon an attempt to emasculate an executive power; we think, however, that this argument misses the point. While on first impression one may conclude that an alteration in the form of government only concerns those changes which go to the very heart and spirit of governmental checks and balances, Peehous cautions that “the Constitution does not speak of changes in ‘the basic nature of government.’ ” (Pechous v. Slawko (1976), 64 Ill. 2d 576, 581, 357 N.E.2d 1144, 1148.) Rather, the court in Peehous concluded that the drafters of the Constitution intended to include “ '*** the relative powers and functions of the county board and the chief executive offi-cer ***’ ” within the meaning of the term “form of government.” (Pechous v. Slawko (1976), 64 Ill. 2d 576, 582, 357 N.E.2d 1144, 1148.) The case at bar presents an attempt by a legislative body to reduce the impact of an executive veto. Only by a thoroughly strained interpretation of Peehous could one conclude that such an action would not affect the relative powers between the legislative and executive branches of county government. Therefore, because both Pechous and the case at bar concerned disputes arising between the executive and legislative branches of county government and because both cases address specific statutory patterns encompassing certain executive powers as key elements, we believe Peehous controls this court’s decision. Therefore, we find that the ordinance enacted by the Board was a change in the form of government under section 6(f).

The Board argues alternatively on appeal that it is not bound by that portion of section 6(f) that requires a referendum to bring about a change in the form of government because section 6(f) further provides that “A home rule county shall have the power to provide for its officers, their manner of selection and terms of office in the manner set forth in Section 4 ***.” (Ill. Const. 1970, art. VII, sec. 6(f).) Section 4(a) provides that a county’s chief executive officer, the President, “shall have those duties and powers provided by law and those provided by county ordinance.” (Ill. Const. 1970, art. VII, sec. 4(a).) When sections 6(f) and 4(a) are read together, the Constitution in effect states that a home rule county possesses the power to provide by county ordinance for the powers of its chief executive officer. Therefore, the Board contends that it could alter the President’s veto powers by ordinance rather than by referendum, even if its action would bring about a change in the form of government.

We do not believe that the Board’s interpretation of the Constitution is correct. To read the Constitution in the manner suggested by the Board would require it to effectively provide that a change in the form of government requires a referendum unless that change in any way concerns the powers of the county’s chief executive officer. We believe that the proper interpretation of the Constitution requires that the first sentence of section 6(f), which states that a referendum is necessary to bring about a change in the form of government, is a general provision that prevails over the two subsequent sentences in that section. The first of those two sentences concerns certain powers of a municipality which are not at issue here. The second subsequent sentence concerns counties and allows that they may provide for their chief executive officer. We think that this sentence concerning counties may not contravene the first sentence of the.section which requires a referendum to bring about a change in the form of government. To do otherwise, we believe, would nullify or greatly diminish the change in the form of government provision. As we discussed earlier, the ordinance at issue in this case constituted a change in the form of government which involved an attempt by the legislative branch of the county to reduce the veto power of the chief executive officer. Such an attempt would increase the legislative power to override an executive veto while decreasing the executive officer’s power to have a presidential veto stand. We cannot believe that the framers of the Constitution intended to exempt such a situation from the referendum requirement of the form of government provision simply because it in some manner concerns a county officer’s powers.

The Board argues that the supreme court found a referendum to be necessary in Pechous v. Slawko (1976), 64 Ill. 2d 576, 357 N.E.2d 1144, simply because the home rule units at issue were municipalities rather than counties. Specifically, the Board maintains that Pechous was decided under the second sentence of section 6(f) which provides that a home rule municipality has the power to “provide for its officers *** only as approved by referendum or as otherwise authorized by law.” (Ill. Const. 1970, art. VII, sec. 6(f).) In contrast, the Board points out that counties such as Cook County are governed under the third sentence of section 6(f), a provision which contains no referendum requirement. We believe that the Board’s interpretation of Pechous is incorrect.

A close reading of Pechous discloses that the court’s holding was based upon and its analysis revolved around the change in the form of government provision of the first sentence of section 6(f). While passing mention was made of the section’s second sentence, the court’s discussion and ultimate decision centered around the constitutional meaning of the term “form of government” and the manner in which that term applied to the facts presented in the consolidated cases. We therefore believe that the distinction between counties and municipalities that has been advanced by the Board is inapplicable where a change in the form of government is found to be present. In other words, when such a change has occurred, the first sentence of section 6(f) applies and a referendum is necessary to carry out the proposed change. Because no referendum was conducted in the case at bar, we find that the ordinance has no legal effect.

For the foregoing reasons, the decision of the trial court is affirmed.

Affirmed.

JOHNSON, J., concurs.

PRESIDING JUSTICE LINN,

dissenting:

The crucial issue in the instant case is whether the passage of a veto override ordinance reducing from four-fifths to three-fifths the majority vote necessary to override a presidential veto is an act changing the “form of government” of the county or, alternatively, is a home rule county’s exercise of its power pertaining to its government and affairs (Ill. Const. 1970, art. VII, sec. 6(a)), including its power to “provide for its officers *** in the manner set forth in Section 4 of this Article.” (Ill. Const. 1970, art. VII, sec. 6(f).) The authority for both these propositions is set forth in sections 6(a) and 6(f) of article VII, which read as follows:

“Sec. 6. Powers of Home Rule Units
(a) A County which has a chief executive officer elected by the electors of the county and any municipality which has a population of more than 25,000 are home rule units. Other municipalities may elect by referendum to become home rule units. Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs, including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare ***.
* * *
(f) A home rule unit shall have the power subject to approval by referendum to adopt, alter, or repeal a form of government provided by law ***. A home rule municipality shall have the power to provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law. A home rule county shall have the power to provide for its officers, their manner of selection and terms of office in the manner set forth in Section 4 of this Article.” Ill. Const. 1970, art. VII, secs. 6(a), (f).

A finding that the ordinance at issue effects a change in the “form of government,” as indicated in the first sentence of section 6(f), would support the trial court’s decision that approval by countywide referendum is required and that the ordinance passed by defendants was therefore an unconstitutional enactment. A finding that the ordinance at issue does not change the form of government would negate the need for a county-wide referendum and lead to a reversal of the trial court’s decision. A careful analysis of the pertinent constitutional provisions, the legislative history behind those provisions, and the applicable case law leads me to conclude that the latter alternative, upholding the constitutionality of the veto override ordinance, is the only valid one. It is for this reason that I respectfully dissent.

Resolution of the issue necessarily involves an inquiry into the intent of the drafters of the 1970 Illinois Constitution, who formulated sections 6(a) and 6(f) of article VII. This underlying intent is clearly set forth in the Report of the Committee on Local Government from the 1970 Constitutional Convention. The committee report, relied on in both the majority opinion and in Pechous v. Slawko (1976), 64 Ill. 2d 576, 357 N.E.2d 1144, which the majority finds to be controlling, sets forth the intent behind paragraph 4.3, the original version of section 6(f), in the following discussion:

“1. [Paragraph 4.3] *** empowers counties and municipalities to adopt various differing forms of government *** and thereby implies that the General Assembly should provide alternative forms of government.
* * *
3. [The] General Assembly [may] control the number of members of county boards and the manner of election, with the manner of election being subject to approval by county wide referendum ***. Paragraph 4.3 *** authorizes] counties, as units of local general government, to select for themselves one of various alternatives [sic] methods of election provided by the General Assembly under Section 6.
But more than the manner of election of the county board is included within the meaning of form of government. ’ It also includes the relative powers and functions of the county board and the chief executive officer of the county. Thus this paragraph contemplates that the General Assembly will provide for various patterns of county administrative organization — perhaps including the election of a county executive officer or the appointment of a county manager or administrative officer — and that counties will be permitted to select among these plans by referendum.” (Emphasis added.)

It is on the interpretation of the italicized language, here the pivotal provision, that my colleagues and I differ. Relying on Pechous, my colleagues conclude that the drafters intended to include “the relative powers and functions of the county board and the chief executive officer” within the meaning of the term “form of government.” Thus, the majority reasons that the veto override ordinance, an “attempt by the legislative branch to alter the relative powers possessed by the chief executive,” defeats the drafters’ intent and constitutes a change in the form of government.

I find no merit in their interpretation. It is clear to me that the italicized language refers to and characterizes the “various patterns of county administration” to be provided by the General Assembly and made available to counties and municipalities. The word “relative” refers to the relative balance of powers that distinguishes one of these various patterns from another, not to the “relative” shifting of power within a pattern. Until an internal shifting of relative powers within a pattern alters the existing external pattern of county administration government and transforms it to a different available alternative pattern, there has been no change in the form of government. A form of government is defined by the relative balance of powers within it. A mere shifting in the balance of powers will not automatically transform one form of government into another form of government; or, viewed in another way, a shifting in the balance of powers within a form of government must constitute a redefinition and a change from one form to another to qualify as a change in the “form of government.”

The majority, to find Pechous dispositive of the instant case, analogized the actions of the Pechous city council to those of the Cook County Board and concluded that the passage of the veto override ordinance here effected a similarly prohibited change in the “form of government.” The inherent error in this conclusion is rooted in the falsity of the analogy itself, a falsity which readily reveals itself upon a closer examination of Pechous.

Pechous, unlike the instant case, involved a municipal form of government. When we look to the statutes to see what forms of government were provided for municipalities, we see that the statutes dealing with cities and villages (Ill. Rev. Stat. 1981, ch. 24, par. 1 — 1—1 et seq.) set forth three forms from which a city, village, or incorporated town may choose: the commission form (Ill. Rev. Stat. 1981, ch. 24, par. 4 — 1—1 et seq.), the managerial form (Ill. Rev. Stat. 1981, ch. 24, par. 5 — 1—1 et seq.), and the strong mayor form (Ill. Rev. Stat. 1981, ch. 24, par. 6 — 1—1 et seq.). Each of these statutory sections was drafted or amended after the effective date of the new constitution to provide these alternative forms of municipal government contemplated by the local government committee.

In the commission form, the council or commission possesses and exercises all executive, administrative, and legislative powers and duties. The managerial form, in contrast, specifies that the powers of the council or board are purely legislative, while executive powers are vested in the municipal manager. The manager has the statutorily authorized power to appoint and remove all directors of departments and to control all departments or divisions of the municipal government. Although a mayor or village president may be elected under this form, his powers are limited. A mayor of a nonaldermanic city or village does not have a veto power; a mayor in an aldermanic structuré has very restricted voting powers; and under either structure a mayor has no power to appoint. Finally, in the strong mayor form, executive power to appoint and remove all administrative assistants, directors, department heads, and all other non-civil-service officers of the municipality, commissions, boards, and agencies is vested in the mayor, and all legislative powers in the council. In light of these distinctions, the majority’s analogy of Pechous to the instant case is clearly baseless.

Peehous concerned a municipality that had chosen, from the various available forms, the managerial form of municipal government. Despite a clear statutory division of powers in which the removal and appointment power is exclusively granted to the municipal manager, the council enacted ordinances removing certain department heads and appointing their replacements. The Peehous court correctly noted that the council possessed no such authority under the managerial form of government. Moreover, the court found that the usurpation of this exclusive executive power amounted to a change in the form of government; the internal shift in power was of such magnitude that the external configuration was altered from the managerial form to the commission form, thereby requiring referendum approval. Here, unlike in Peehous, there has been no such change in form resulting from a usurpation of an exclusive executive power.

Having shown Peehous to be inapposite, we must till determine whether the defendants’ action in the instant case constituted a change in the form of government. This determination requires a three-step analysis. First, we must determine what form of government or “pattern” of county administration is employed in Cook County. Second, we must examine the rationale underlying the existing form of government. Third, we must determine if the passage of the veto override ordinance so shifts the balance of power in the existing form of government as to alter the external pattern and change the existing form into one of the other alternative forms of county government. Only if the veto override ordinance does so may we properly find, as did the trial court, that the ordinance is unconstitutional. The result of this three-step analysis reveals, however, that such is not the case.

I

As one of the explicit patterns by which a county could organize its government, the Illinois legislature, in the opening section of the County Executive Act (Ill. Rev. Stat. 1981, ch. 34, par. 701 et seq.), declared its intent to provide for the adoption of the county executive form of government. Section 3 of that act states,

“(c) ‘County executive form of government’ means that form of government in which the departments of county government are administered by a single county official called the county executive elected at large by the qualified voters of the county. The board shall act as the legislative body of the county under this form of county government.” Ill. Rev. Stat. 1981, ch. 34, par. 703.

Cook County has a constitutionally established county executive form of government. (Ill. Const. 1970, art. VII, sec. 6(b).) Any county other than Cook may establish by referendum the county executive form of government for that county. The wording of the referendum, found in section 5 (Ill. Rev. Stat. 1981, ch. 34, par. 705), is of particular interest:

“Shall the county of......become a Home Rule County and establish the county executive form of government?”

In other words, by electing a county executive at large, voters are simultaneously choosing the county executive form of government and home rule status for the county. The alternative forms of county government, i.e., an executive elected out of the group of elected commissioners, or an executive appointed by the board, are available only to non-home-rule units. Cook County, by virtue of its mandated county executive form of government, is a home rule county and therefore has no alternative. The ordinance changing the veto override did not change Cook County from operating under a county executive form of government.

In addition to the county executive form of government, Cook County, because of its size and composition, has a unique two-district method of election for the Cook County Board. The Illinois Constitution of 1970 provides that the Cook County Board shall be elected from the city of Chicago and from the area outside Chicago. (Ill. Const. 1970, art. VII, sec. 3(c).) Under the 1870 constitution, the membership of the Cook County Board was fixed at 15 persons, “ten of whom shall be elected from the city of Chicago, and five from towns outside of said city ***.” (Ill. Const. 1870, art. X, sec. 7.) A State statute was enacted to implement the 1870 Constitution. (See Ill. Rev. Stat. 1981, ch. 34, par. 901.) In 1983, the two-district method of election still stands.

However, since the adoption of the 1970 Constitution, the size of the County Board has increased from 15 to 17, with 10 commissioners elected from the city and seven from the suburbs. (See Ill. Const. 1970, Transition Schedule, sec. 5(b); see Sutton v. Dunne (1973), 365 F. Supp. 483.) Our supreme court, in Allen v. County of Cook (1976), 65 Ill. 2d 281, 357 N.E.2d 458, suggested that the two-district method of election and the number of members of the board to be elected from those districts constitute a “form of government” such that an ordinance that affected either aspect of county organization would constitute a change in the form of government. Allen’s suggestion that an alteration in the two-district method of election would change the form of government is consistent with the rationale underlying the two-district concept, as will be discussed.

As a result of the above analysis, it is clear that the local government committee’s statement that “form of government” included the “relative powers and functions of the county board and the chief executive officer of the county” referred to the patterns available and what powers were given to the executive and legislative branches under each pattern. Cook County, then, has a county executive form of government with a two-district method of election to the county board. This is the “pattern.”

II

A State statute enacted in 1887 to implement the 1870 Constitution provides that in Cook County, four-fifths of all members of the board of commissioners must vote as a majority to override a presidential veto. (Ill. Rev. Stat. 1981, ch. 34, par. 908.) Two separate statutes pertaining to veto overrides have been enacted by the legislature, one that deals with Cook County and one that addresses counties other than Cook. (Ill. Rev. Stat. 1981, ch. 34, par. 701 et seq.; Ill. Rev. Stat. 1981, ch. 34, par. 901 et seq.) While the statute concerning Cook County provides for a four-fifths override requirement, the statute dealing with counties other than Cook requires only a three-fifths majority to override a presidential veto. As noted in the majority opinion, this four-fifths override requirement “appears to be one means by which the legislature set Cook County apart from other Counties.” The opinion concludes that the four-fifths majority requirement is an “essential element” of the Cook County form of government, and therefore an alteration of that essential element would result in a change in the “form of government.”

While the fact that the four-fifths majority requirement is unique to Cook County is undisputed, the distinction in and of itself is meaningless without examining the reasons that gave rise to it. An examination of the underlying rationale reveals that the four-fifths requirement is not an “essential element” of the form of government but merely a practical and unique solution to a problem unique to Cook County, a problem arising from the two-district method of election.

At the time of the passage of the State statute providing for a four-fifths majority, there were 15 members on the board of commissioners, 10 from the city and five from the suburbs. On any given proposition, 15 votes were cast. A three-fifths majority, or nine votes, would have enabled the 10 city commissioners consistently to override the vetoes of a president from the suburbs, totally excluding a suburban voice in an override vote. Thus, as the trial court noted, the “obvious purpose” of the four-fifths majority was to prevent one part of Cook County from dominating county government. The underlying rationale of the four-fifths majority is to insure that the second district (the area outside Chicago) will have a voice in overriding presidential vetoes. Because other counties do not have the unique two-district plan that Cook County has, there was never a need for these other counties to require a four-fifths majority. The three-fifths majority is the norm and is consistent with other laws and ordinances at the Federal, State, and local levels of government.

We noted, however, that Cook County has a “county executive form of government” in addition to the two-district method of election. Thus, we must also examine the rationale underlying the county executive form.

The legislature has made this an easy task by setting forth, by statute, the purpose behind this form of government:

“It is declared as a matter of legislative determination that in order to promote the health, safety, morals and welfare of the public it is necessary in the public interest to provide for an elected county executive form of county government in accordance with Sections 4(a) and 6(a) of Article VII of the 1970 Illinois Constitution.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 34, par. 702.)

This statutory determination makes clear the legislature’s conclusion that the separation of powers inherent in the county executive form of government best insures the protection of the public welfare. This separation of powers has been preserved in the veto override ordinance.

Ill

The instant case deals with an ordinance that impacts on both (1) the relative power between the city commissioners and the suburban commissioners, and (2) the relative power between the executive and legislative branches of county government. For this reason, the case at bar is not controlled by either Allen, which dealt with a shift of power within the legislative branch that did not affect the executive branch, or Pechous, which dealt with a usurpation of executive power by the legislative branch that changed the managerial form of municipal government. While neither of these cases is controlling, both are instructive on the issue at bar.

Having thus discerned the pattern or “form of government” in Cook County, as well as the rationale underlying that form of government, we must now determine if the veto override ordinance, by re-during the required majority from four-fifths to three-fifths, undermines the rationale and/or alters the pattern of county administrative organization, thereby changing the “form of government” as conveyed in section 6(f) of article VII. -

Under the override ordinance, 11 votes are required to override a presidential veto. As the board now stands, there are 10 city commissioners and seven suburban commissioners. Thus, neither the city bloc nor the suburban bloc alone has a sufficient number to override a veto. The city contingent must have at least one vote from the suburban contingent. Conversely, the suburban contingent, now requiring only an additional four rather than an additional seven city votes for a majority, has a stronger voice than it had under the old ordinance.

That the underlying rationale is preserved is further evidenced by the fact that the county board voted to enact the override ordinance by a vote of 14 yeas, two nays, and one absent. All of the suburban commissioners voted for the ordinance. It was President Dunne and two city commissioners, the parties plaintiff in the instant case, who did not support the ordinance. It is clear from this vote and from the identity of the parties in this action that the issue here is not trepidation of the dilution of the suburban voice but rather trepidation by the executive of dilution of his veto power.

As the veto ordinance now stands, the presidential veto power is substantially identical to that granted to the governor under the 1970 Constitution (Ill. Const. 1970, art. IV, sec. 9(c)), and to the county executive under the County Executive Act enacted to implement the county home rule provision of the 1970 Constitution (Ill. Rev. Stat. 1981, ch. 34, pars. 702, 710). His veto is greater than the simple majority provision permitted chairmen of county boards of counties under township form of government. (Ill. Rev. Stat. 1981, ch. 34, par. 855.) With a three-fifths or 60% requirement, the votes of eleven commissioners are needed to override a veto. Excluding the president, this means that 68.75% of the remaining 16 commissioners must vote to override the veto.

This change in the majority required to override the veto does not, therefore, remove President Dunne from the role of chief executive as he remains in the same position relative to his veto power as are all other chief executives.

The final step in the analysis is to determine if the veto override ordinance has the effect of changing the county executive form of government by somehow altering or destroying the purpose of that form. As explicitly set forth by the legislature, this purpose is to provide for the health, safety, morals and welfare of the public. (Ill. Rev. Stat. 1981, eh. 34, par. 702.) It is not apparent how a reduction in the majority required to override a presidential veto endangers, in any way, the public health, safety, morals or welfare. It cannot be seriously contended that the Cook County Board of Commissioners, by requiring 11 votes to override a veto, would be in a better position to protect the public welfare.

We also note with interest that only a few years ago, in the case of Winokur v. Rosewell (1980), 83 Ill. 2d 92, 414 N.E.2d 724, President Dunne and the State’s Attorney of Cook County expressly recognized the propriety of utilizing home rule powers to reduce the majority required to override the veto of the County Board president. In Winokur, one of the issues before the supreme court was the timeliness of Dunne’s veto of a 1979 ordinance substantially identical to the one involved here, an ordinance that reduced the majority required to override a veto from four-fifths to three-fifths. Dunne, who had been joined as a defendant in his official capacity and was represented on appeal before the Illinois Supreme Court by the State’s Attorney of Cook County, filed a brief containing the following statement:

“The procedural ordinance in question would have reduced the majority necessary to override a veto from four-fifths to three- ' fifths. The County Board clearly has the power to accomplish such a result under its home rule powers. Allen v. County of Cook (1976), 65 Ill. 2d 281, 288 [357 N.E.2d 458].” (Emphasis added.) (Brief of appellee George W. Dunne in Winokur v. Rosewell, Supreme Court Docket No. 52862, at 31.)

Dunne’s analysis in Winokur confirms that a neutral interpretation of the relevant case law and constitutional provisions properly sustains the override ordinance as a valid implementation of the home rule powers granted to the County Board.

Conclusion

The veto override ordinance, by reducing the majority needed to override a presidential veto from four-fifths to three-fifths, (1) does not change the two-district method of election or the number of commissioners elected, (2) does not defeat the rationale underlying the two district method of election, (3) does not change the county executive form of government, (4) retains the same checks and balances found sufficient to protect the separation of powers in all other examples of county executive form of government as well as in other forms of government at the Federal, State, and local levels, and (5) does not create an increased danger to the health, safety, morals or welfare of the public.

For these reasons, the veto override ordinance does not constitute a change in the “form of government” but rather falls under section 6(a) of article VII and is within the power of the home rule unit to perform any function pertaining to its government and affairs.

Having found that the enactment of the veto override ordinance did not constitute a change in the form of government, it necessarily follows that the council had the power to enact the ordinance without need of a county-wide referendum. The enactment of the ordinance is therefore constitutional.

In light of the apparent constitutionality of the veto override ordinance, I dissent.

      The pertinent provisions of section 6 read:
      “Sec. 6. Powers of Home Rule Units
      (a) A County which has a chief executive officer elected by the electors of the county and any municipality which has a population of more than 25,000 are home rule units. Other municipalities may elect by referendum to become home rule units. Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt.
      * ** *
      (f) A home rule unit shall have the power subject to approval by referendum to adopt, alter or repeal a form of government provided by law, except that the form of government of Cook County shall be subject to the provisions of Section 3 of this Article. A home rule municipality shall have the power to provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law. A home rule county shall have the power to provide for its officers, their manner of selection and terms of office in the manner set forth in Section 4 of this Article.” Ill. Const. 1970, art. VII, secs. 6(a), (f).


source: Caselaw Access Project

author: JUSTICE HEIPLE

license: Public Domain

text:
      In re MARRIAGE OF LENORE A. BURGESS, Petitioner-Appellee, and JOHN W. BURGESS, Respondent-Appellant.
    Third District
    No. 3 — 83—0523
    Opinion filed April 10, 1984.

      Martin H. Katz, of Katz, McAndrews, Durkee, Balch & Lefstein, EC., of Rock Island, for appellant.
    William M. Walker and James J. Coryn, both of Coryn, Walker and Meehan, of Rock Island, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

On March 10, 1983, the circuit court of Rock Island County entered an order dissolving the five-year marriage of John and Lenore Burgess. The subject of this appeal is the court’s division of the following property which Mr. Burgess contends was nonmarital: (1) three Keough retirement accounts valued at $66,000 (hereinafter referred to as the Keough plan); (2) $7,700 which was the amount by which the cash surrender of Mr. Burgess’ two life insurance policies increased during the marriage and; (3) an IRA valued at $2,000.

Prior to the marriage, the parties entered into a prenuptial agreement whereby they released all rights to one another’s property whether owned at the time of the marriage or thereafter acquired. Both the Keough plan and the insurance policies were listed in a separate schedule of Mr. Burgess’ assets. The IRA was not included in the schedule.

The trial court found that the prenuptial agreement was fair and was knowingly and voluntarily signed by Mrs. Burgess. However, the court did not enforce the agreement with respect to property acquired by Mr. Burgess during the marriage even though Mrs. Burgess had waived her right to such property when she signed the agreement. The only reason given by the court for treating the Keough plan as marital property was because Mr. Burgess used the plan to produce tax benefits for the parties. The court apparently felt that this conduct indicated that Mr. Burgess no longer intended to treat the plan as nonmarital property in accord with the agreement. No reason was given for the court’s refusal to enforce the agreement with respect to the insurance policies and the IRA.

Persons competent to contract may execute a valid antenuptial agreement. Although the law prescribes the rights of a husband and wife in the property of each other, persons may, by agreement, exclude the operation of the law and determine for themselves what rights they will have in each other’s property during the marriage. (Volid v. Volid (1972), 6 Ill. App. 3d 386.) In addition to property owned prior to the marriage, the parties may also define their rights to property acquired by a spouse later in the marriage. (See Ill. Ann. Stat., ch. 40, par. 503(a)(4), Historical and Practice Notes, at 462 (Smith-Hurd 1980); 41 Am. Jur. 2d Husband & Wife sec. 283 (1968).) An agreement as to future acquired property, such as the one in the present case is consistent with Volid because it simply acts to suspend the operation of the law which generally designates property as non-marital or marital based on whether it was acquired before or after the marriage. (Ill. Rev. Stat. 1981, ch. 40, par. 503.) In fact, the Illinois Marriage and Dissolution of Marriage Act specifically recognizes that the operation of marital property laws may be excluded by agreement.

Illinois law presumes that property acquired during a marriage is marital property. (Ill. Rev. Stat. 1981, ch. 40, par. 503(b).) This presumption can be overcome by showing, among other things, that the property was excluded by valid agreement of the parties. (Ill. Rev. Stat. 1981, ch. 40, par. 503(a)(4).) As with any contract, a party may rescind a prenuptial agreement by engaging in a course of conduct which clearly evidences an intent to abandon its terms. (See Kalman v. Bertacchi (1980), 80 Ill. App. 3d 530.) This might occur by a commingling of marital or nonmarital property or by conduct which shows an intent to ignore the agreement and treat nonmarital property as marital property. Therefore, our inquiry turns to the question of whether any of the aforementioned events operated in the present case to rescind the prenuptial agreement and transmute nonmarital into marital property. We will start by examining the Keough plan.

It is undisputed that Mr. Burgess started the Keough plan prior to the marriage with an $11,000 deposit and that the plan increased by $55,000 during the marriage. Mrs. Burgess argues that the manner in which Mr. Burgess used and funded the plan during the marriage resulted in a commingling of marital and nonmarital property which transmuted the entire plan into marital property. She also alleges that Mr. Burgess expressed his desire to treat the plan as the property of both parties.

The $55,000 increase in the plan was attributable to contributions made by Mr. Burgess which were funded by five loans from Mrs. Burgess totaling $34,109.63. The loans drew interest according to the interest rate of the Keough plan at the time each loan was made. Mr. Burgess gave promissory notes for three of the loans.

The parties concede that the source of the loans was the separate nonmarital property of Mrs. Burgess. The record reveals that Mr. Burgess repaid the loans along with $10,732.50 in interest after he sold a house which was his nonmarital property. In summary, the Keough plan started out as Mr. Burgess’ nonmarital property, which he augmented with additional nonmarital cash borrowed from his wife. Mr. Burgess then repaid the loan with interest after selling non-marital property of his own.

The clear intent of the parties as manifested by their conduct and the prenuptial agreement was to keep their property separate whether acquired before or after the marriage. This included any separately owned property which increased in value during the marriage. By declaring the Keough plan to be marital property, the court has frustrated that intent and deprived Mr. Burgess of the nonmarital property he used to repay the loans. On the other hand, Mrs. Burgess has not only had her nonmarital property restored with interest, but has also received half of the Keough plan as a bonus.

The fact that the loan transactions produced tax benefits for both parties did not permit the court to redesignate the plan as marital property and ignore a valid prenuptial agreement. Except for sharing the tax benefits with his wife, Mr. Burgess had always treated the Keough plan as his own separate nonmarital property.

As additional support for the trial court’s ruling, Mrs. Burgess argues that by loaning her nonmarital cash to Mr. Burgess, she freed up his earned income so as to facilitate a better standard of living. This does not change the Keough plan into marital property.

The indirect benefits generated by the loan transactions were enjoyed by both parties and do not give Mrs. Burgess the right to share in the plan. If Mrs. Burgess was inconvenienced by having to loan out her money, she was well compensated by Mr. Burgess’ interest payment. Simply because an item of nonmarital property produces a benefit shared by the parties does not transfer the item into marital property. In re Marriage of Smith (1980), 90 Ill. App. 3d 168, cited by Mrs. Burgess, does not compel the opposite conclusion.

In Smith, the parties owned an IRA and a Keough plan. Both plans were acquired during the marriage and there was no prenuptial agreement. The distinctions between Smith and the present case are self-evident. Further discussion would not be beneficial.

Even if there was no prenuptial agreement here, the statutory presumption that property acquired during the marriage is marital property could be overcome by other means. The initial $11,000 investment made by Mr. Burgess prior to the marriage is nonmarital property under section 503(a)(6) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 503(a)(6)), which excludes property acquired before the marriage. The $55,000 increase in value is nonmarital because it is an increase in the value of property acquired before the marriage. (Ill. Rev. Stat. 1981, ch. 40, par. 503(a)(5).) We are aware that the exclusion of section ■ 503(a)(6) does not apply to increases attributable to contributions of the parties. In fact, such contributions can raise the presumption that the entire asset has been transmuted into marital property. (In re Marriage of Lee (1981), 87 Ill. 2d 64.) However, as we have pointed out, the increase in the Keough plan was attributable solely to the infusion of Mr. Burgess’ nonmarital property. To the extent that Mrs. Burgess contributed to the increase, she has been repaid with interest.

Based on the foregoing, we find that the Keough plan was non-marital property. The trial court abused its discretion by treating the plan as marital property and awarding one-half to Mrs. Burgess.

The same result obtains with respect to the cash surrender value of Mr. Burgess’ two life insurance policies. Both policies were purchased long before the parties were married, and the policies were listed in the separate schedule attached to the prenuptial agreement. During the marriage, the cash surrender value of the policies increased by $7,770.50, of which Mrs. Burgess received one-half. This was wrong.

When Mrs. Burgess signed the prenuptial agreement, she waived any right to property which might be acquired by Mr. Burgess in the future. This waiver applies to the increased cash surrender value of the insurance policies. Mrs. Burgess does not challenge the prenuptial agreement nor does she contend that Mr. Burgess did anything which transformed the increased surrender value of the policies into marital property. Therefore, the agreement controls.

Finally, the record shows that in 1982, Mr. Burgess made a $2,000 IRA deposit, half of which was awarded to Mrs. Burgess. Although this asset was wholly acquired during the marriage, the prenuptial agreement rebuts the presumption that it is a marital property. Mrs. Burgess does not argue that the account was treated as joint property or that she contributed to the $2,000 deposit. In fact, the record reveals that the IRA was treated as the exclusive property of Mr. Burgess since he used the account as an adjustment to income on his separate 1982 tax return. Therefore, this was property acquired solely by Mr. Burgess during the marriage and falls within the exclusion of the prenuptial agreement.

In conclusion, we find that the Keough plan, the insurance policies and the IRA, whether acquired before or after the marriage, were nonmarital property pursuant to the prenuptial agreement of the parties. The judgment of the circuit court of Rock Island County awarding one-half of this property to, Mrs. Burgess is reversed. Since the trial court denied maintenance based on this division of property, the cause will be remanded for further consideration of the maintenance issue.

Reversed and remanded.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE KASSERMAN

text:
    JANICE LUTSCH, Appellant, v. THE INDUSTRIAL COMMISSION et al. (ELGIN SCHOOL DISTRICT U-46, Appellee).
    Second District (Industrial Commission Division)
    No. 2 — 84—120 WC
    Opinion filed April 4, 1984.
    Lewis P. Gaines, Ltd., of Chicago, for appellant.
    Frank J. Wiedner, of Wiedner & McAuliffe, of Chicago, for appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Petitioner, Janice Lutsch, sought workers’ compensation benefits for an injury allegedly sustained while she was in the employ of respondent, Elgin School District U — 46. An arbitrator awarded petitioner both temporary and permanent total disability benefits and medical expenses. The Industrial Commission affirmed the arbitrator’s award of temporary total disability but reversed the award of permanent total disability. This decision was subsequently confirmed by the circuit court of Kane County, and petitioner has perfected this appeal.

On October 20, 1978, petitioner was employed as a high school teacher by District U — 46, at which time she alleges she was injured while attempting to break up an altercation between two female students. Petitioner contends that her injury resulted when one of the students stamped on petitioner’s right foot with the wooden heels of her shoe.

Prior to the injury complained of, Dr. Martin I. Stoller performed a bunionectomy on petitioner’s right foot in March 1978. Subsequently, Dr. Stoller determined that petitioner was suffering from nerve entrapment syndrome, and on August 1, 1978, he again operated on petitioner’s right foot. Subsequent to the alleged injury at the school, Dr. Stoller examined petitioner and noted a bruised area on petitioner’s right foot. Petitioner continued to experience pain and discomfort in her right foot and on May 10, 1979, Dr. Stoller performed a third surgery.

At the request of District U — 46, Dr. E. Thomas Marquardt examined petitioner. Dr. Marquardt was of the opinion that petitioner’s injury at school on October 20, 1978, probably had very little to do with the fact that petitioner required a third operation. Dr. Marquardt concluded that petitioner’s problems with her right foot resulted from her two previous operations and were not in any significant way related to the injury of October 20,1978.

Petitioner was also examined, at her request, by Dr. Satya P. Kaushal. Dr. Kaushal noted that petitioner had some limitations on the movement of her right foot and that she complained that her right foot was sensitive and numb. Dr. Kaushal further noted petitioner’s previous three operations and the injury she suffered at school on October 20, 1978; however, Dr. Kaushal made no specific findings as to the nature and extent of the injury petitioner suffered on October 20, 1978. Dr. Kaushal concluded that petitioner had a “loss of use of her right foot on an industrial basis.”

On October 30, 1980, the arbitrator found that petitioner sustained an accidental injury arising out of and in the course of her employment and awarded her 22h weeks’ temporary total disability payments. The arbitrator further found that petitioner’s injuries resulted in the permanent loss of the use of her right foot to the extent of 30% thereof. The arbitrator awarded petitioner “the further sum of $291.04 for necessary medical services, as provided in paragraph (a) of section 8 [of the Workers’ Compensation Act].”

On May 24, 1982, the Industrial Commission affirmed the arbitrator’s award of $152.24 per week for a period of 22h weeks for temporary total disability but reversed the arbitrator’s award for permanent total disability, finding that petitioner “failed to prove she sustained any permanent disability to her right foot as a result of the accident of October 20, 1978.” After the circuit court confirmed the Industrial Commission’s decision, petitioner appeals to this court.

Petitioner first contends that the Industrial Commission’s decision denying her permanent total disability benefits was erroneous on the ground that it amounted to a finding that the requisite causal connection between petitioner’s injury at school and the condition of petitioner’s right foot was absent. District U — 46, on the other hand, urges that petitioner misinterprets the finding of the Commission and suggests that the only issue before this court is whether the Industrial Commission’s finding that petitioner sustained no compensable permanent disability is against the manifest weight of the evidence.

Since the Industrial Commission awarded petitioner temporary total disability benefits, it is obvious that the Industrial Commission found a causal connection between petitioner’s injury at school and the condition of her right foot. Implicit in the Commission’s award is a finding that the incident at school and the condition of petitioner’s right foot were causally connected. Therefore, the issue before this court involves, as District U — 46 maintains, the extent of petitioner’s injury.

The resolution of factual matters regarding the extent of an employee’s injury is for the Industrial Commission to determine. Where, as here, medical testimony is in dispute and there is evidence in the record which would sustain the finding of the Industrial Commission, its finding will not be disturbed unless it is contrary to the manifest weight of the evidence. Spector Freight System, Inc. v. Industrial Com. (1983), 93 Ill. 2d 507, 514, 445 N.E.2d 280, 283.

While the medical reports of Dr. Stoller and Dr. Kaushal do not specifically state whether petitioner suffered any permanent injury due to the October 20, 1978, injury, the medical report of Dr. Marquardt indicates that petitioner suffered no permanent disability as a result of such injury. Since there is medical evidence supporting the finding of the Industrial Commission that petitioner was not permanently disabled as a result of the injury sustained at respondent’s school on October 20, 1978, and no evidence to the contrary, we conclude that the Industrial Commission’s finding was not against the manifest weight of the evidence.

Finally, petitioner contends that the Industrial Commission erred in reversing the arbitrator’s award of medical expenses in the amount of $291.04. However, District U — 46 asserts, and the record establishes, that District U — 46 represented at the Industrial Commission hearing that the arbitrator’s award of medical expenses in the amount of $291.04 was not in dispute. The propriety of the award of such medical expenses was not considered by the Industrial Commission; therefore, we need not consider this issue.

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

Affirmed.


author: JUSTICE LORENZ

text:
    FALCON MFG. COMPANY, a/k/a Aetos, Inc., Plaintiff-Appellant, v. NATIONWIDE BROKERS, INC., et al., Defendants-Appellees.
    First District (5th Division)
    No. 83 — 327
    Opinion filed March 2, 1984.
    Rehearing denied April 13, 1984.
    David D. Albee, of Tews, Theisen & Theisen, of Chicago, for appellant.
    George C. Nesmith, of Uptown & Nesmith, of Chicago, for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff filed an eight-count verified complaint seeking to recover the value of its goods allegedly damaged while being transported from Sheboygan, Wisconsin, to plaintiff’s plant in Dallas, Texas, through the negligent acts of the defendants, Nationwide Brokers, Inc., Nationwide Driver Service, Inc. (Drivers), Southwest Petroleum Corporation (Swepco) and defendant Motor Transportation Company.

Although Motor Transportation was served on January 12, 1982, it failed to appear, plead or otherwise respond within 30 days.

In an April 16, 1982, hearing on plaintiff’s motion for a default judgment, the trial court found that more than 30 days had elapsed since service of summons was had, and that defendant’s failure to appear was a default. It then awarded plaintiff judgment for $21,971.87 and costs.

Following registration of the judgment with the circuit clerk of St. Louis County, Missouri, on November 5, 1982, defendant, on December 23, 1982, filed its petition and affidavits to vacate the default judgment pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401), formerly section 72 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 72), asserting that it had a good defense to plaintiff’s claim in that it did not operate or supervise the operation of the semi-tractor at the time of the complained of occurrence. The petition further asserted that control and supervision was either in Swepco or Drivers and that the occurrence was the result of the negligent operation of the vehicle by its driver, who was driving at an excessive speed, and improper loading by others, which caused the load to shift.

Defendant further alleged that the person who swore to the plaintiff’s complaint had no personal knowledge of the acts complained of and could not testify in court to those acts. Further, defendant denied that it operated as a common carrier or that it undertook the transportation of goods, and finally, the petition to vacate asserted that defendant’s failure to appear and answer resulted from confusion with multiple litigation involving the same occurrence and that upon learning that this was a separate and distinct lawsuit, defendant acted with diligence.

The affidavit of Glenn Hendry, defendant’s vice-president, attached to the petition to vacate, asserted that the instant case became confused with another case involving the same occurrence complained of here, and through inadvertence and without negligence on the part of defendant, no appearance of answer was filed.

Plaintiff’s motion to strike defendant’s petition urging grounds that defendant (1) failed to state facts upon which the court may reasonably infer that petitioner exercised due diligence in presenting a defense to plaintiff’s complaint and in presenting said petition, (2) failed to appropriately show matters not of record, and (3) failed to establish a meritorious defense, was denied. The court vacated its judgment, and granted defendant time to answer or plead. Plaintiff appeals.

Opinion

The sole issue in this case is whether the trial court abused its discretion in granting defendant’s petition to vacate the default judgment of April 16, 1982, as the petition was insufficient and inadequate as a matter of law, to support relief sought pursuant to section 2 — 1401 (formerly section 72) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401).

Section 2 — 1401 provides a procedure for obtaining relief from final orders, judgments and decrees after the passing of 30 days from the date of entry thereof. A motion to vacate a default judgment pursuant to section 2 — 1401 invokes the equitable powers of the court, as justice and fairness require, so that one may not enforce a default judgment obtained by unfair, unjust or unconscionable circumstances. (Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 190 N.E.2d 348.) A court of review may disturb a trial court’s decision regarding a section 2 — 1401 only if it finds that the court abused its discretion. Stallworth v. Thomas (1980), 83 Ill. App. 3d 747, 404 N.E.2d 554.

To warrant relief pursuant to section 2 — 1401, the petitioner must demonstrate (1) a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the trial court in the original action; (3) that through no fault or negligence of his own an error of fact or a valid defense/claim was not raised to the trial court at the time the judgment was entered;, and (4) due diligence in filing the petition for relief. Mitchell v. Seidler (1979), 68 Ill. App. 3d 478, 482, 386 N.E.2d 284.

For the purposes of this appeal, we need not consider whether defendant Motor Transportation had a meritorious defense. Plaintiff appeals only defendant’s lack of due diligence in presenting a defense and in presenting its petition, contending that both defendant’s petition and its supporting affidavit contain conclusions and not facts sufficient to warrant relief under section 2 — 1401.

It is essential that both elements, meritorious defense and due diligence, be shown since the purpose of a section 2 — 1401 proceeding is to bring facts not appearing of record to the attention of the trial court, which, if known to the court at time judgment was entered, would have prevented its rendition. (Lammert v. Lammert Industries, Inc. (1977), 46 Ill. App. 3d 667, 674, 360 N.E.2d 1355.) The section 2 — 1401 petition has the burden of showing, by adequate allegations, that petitioner is entitled to the relief sought. (Lamere v. Vaughn (1976), 34 Ill. App. 3d 261, 339 N.E.2d 474.) Ultimate facts showing due diligence in a meritorious defense must be shown. (Mutual National Bank v. Kedzierski (1968), 92 Ill. App. 2d 456, 236 N.E.2d 336.) If the petition fails to allege facts which demonstrate diligence, relief will not be granted. See Bartolini v. Popovitz (1969), 108 Ill. App. 2d 89, 246 N.E.2d 834.

Defendant’s allegations of due diligence are contained both in its petition and the supporting affidavit. The petition alleges due diligence by defendant in that the supporting affidavit of Glenn Hendry, vice-president-finance for Motor Transportation, would show that the failure of defendant to appear and answer in this matter was “as a result of confusion with multiple litigation, and that upon learning that this was a separate and distinct lawsuit the defendant has acted with diligence.”

In his supporting affidavit, Glenn Hendry, states that “at the time this suit was filed there was pending in the U.S. District Court for the Western District of Wisconsin, a cause of action entitled Motor Transportation v. Nationwide Driving, Inc. *** involving the same occurrence complained of by Falcon Mfg. Company.” The affidavit further stated, “that through inadvertence and without negligence on the part of Motor Transportation Company,” this lawsuit by plaintiff became confused with the Wisconsin case and no answer or appearance was filed.

To effectively state a cause of action warranting relief pursuant to section 2 — 1401, a petitioner must show that his failure to defend against the lawsuit was the result of an excusable mistake. (Johnson-Olson Floor Coverings, Inc. v. Branthaver (1968), 94 Ill. App. 2d 394, 236 N.E.2d 903.) Section 2 — 1401 does not afford a litigant a remedy whereby he may be relieved of the consequences of his own mistakes or negligence. (Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 165 N.E.2d 294.) It is the duty of every litigant to follow the progress of his case, rather than to merely assume that counsel is doing all that is necessary and proper in the conduct thereof. Stewart v. Beegun (1970), 126 Ill. App. 2d 129, 261 N.E.2d 495.

When the circumstances of this case are viewed in their entirety, we conclude that defendants have failed to sustain their burden of alleging facts which, if true, would entitle them to the relief requested.

The defendant’s supporting affidavit alleged that its failure to appear was “through inadvertence and without negligence” due to confusion with another lawsuit. Significantly, neither the defendant’s petition nor its supporting affidavit to vacate state any facts upon which the court below could have found excusable the failure of the defendant to appear in court after summons was duly served on its agent. This court will not hold defendant’s failure to read a summons or his assumption that it refers to another lawsuit as excusable neglect, mistake or absence of fault. See Postal Film Inc. v. McMurtry (1974), 22 Ill. App. 3d 293, 317 N.E.2d 375.

Defendant relies on Ellman v. De Ruiter (1952), 412 Ill. 285, 106 N.E.2d 350, where the supreme court held that one may not enforce a default judgment attended by unfair, unjust or unconscionable circumstances, because a petition filed under section 2 — 1401 invokes the “equitable powers of the court, when the exercise of such power is necessary to prevent injustice.” (412 Ill. 285, 292.) Although defendant does not allege fraud on plaintiff’s part, it urges that this principle be applied here because the plaintiff failed to inform the defendant Motor Transportation Company of their intent to move for the default or its existence once it had been granted.

The failure to notify defendant of the entry of a default judgment does not make the judgment void. (See Watts v. Medusa Portland Cement Co. (1971), 132 Ill. App. 2d 227, 268 N.E.2d 721.) It is a factor which may in particular circumstances make a default judgment more vulnerable to a section 2 — 1401 petition (Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 614, 190 N.E.2d 348); but it does not excuse a defendant from the burden of showing the exercise of due diligence. See Johnson-Olson Floor Coverings, Inc. v. Branthaver (1968), 94 Ill. App. 2d 394, 236 N.E.2d 903.

Defendant here asks this court to excuse his conduct prior to the judgment in the interest of fairness and justice, and this we cannot do. We consider Ellman inapplicable because it alleged that plaintiff took unfair advantage of both defendant and the court. Here there is no suggestion of fraud or unconscionable behavior on the part of the litigants or the court, but rather it is apparent that the position defendant finds itself in was the result of its own inexcusable mistake. The ambit of section 2 — 1401 relief must not be overbroadened to such an extent that the principles of equity and an ordered concept of justice are diluted. Escuzuk v. Chicago Transit Authority (1968), 39 Ill. 2d 464, 236 N.E.2d 719.

For the foregoing reasons, we conclude that defendant Motor Transportation’s section 2 — 1401 petition and its supporting affidavit was insufficient as a matter of law because it lacked a showing of due diligence in proceeding to defend on the merits of this case. We find the trial court in the instant case abused its discretion by granting defendant’s request for relief when there was no basis for it as a matter of law.

Accordingly, the order vacating the judgment against defendant is reversed, and the cause remanded to the circuit court with directions to reinstate judgment.

Order reversed and cause remanded with directions.

MEJDA, P.J., and O’CONNOR, J., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES NESTER, Defendant-Appellant.
    Second District
    No. 83 — 615
    Opinion filed April 17, 1984.
    G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.

      Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and William L. Browers, both of State’s Attorneys Appellate Service Commission, of counsel), fofthe People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury defendant, Charles Nester, was found guilty of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)) and was thereafter sentenced to a term of natural life imprisonment. He appeals, contending (1) that the trial court erroneously concluded that “the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1(a)(1)(b)), and, therefore, erred in imposing a sentence of imprisonment for his natural life; and (2) that section 5 — 8—1(a)(1)(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1(a)(1)(b)) violates the Federal and State constitutional guarantees of due process and equal protection of the law.

The evidence at trial established that a beer party was held outdoors during the night of July 24 and early morning hours of July 25, 1982, in unincorporated Palatine, Illinois. It appeared to be a gathering of motorcycle people and 100 to 150 persons attended, including Jacqueline Gerasco, Susan Korth, Vincent Keenan and the defendant. At approximately 3:30 a.m. on July 25 an altercation occurred between Vincent Keenan and the defendant. Susan Korth, who was a friend of Keenan’s, testified that she observed Keenan and defendant fight in an area that was illuminated by floodlights. She stated that the altercation commenced when Keenan came to the aid of Jacqueline Gerasco, whom the defendant and a friend of his had been harassing with lewd gestures and argument. When defendant struck Gerasco, Keenan ran to her aid.

Korth estimated that defendant weighed 180 pounds and was 5 feet 11 inches tall, whereas Keenan was 5 feet 5 inches in height and weighed 130 pounds. She further testified that when Keenan began to help Gerasco the defendant hit and punched him knocking Keenan to the ground where he remained for a short time. When Keenan regained his feet, he and defendant got into a shouting argument and, although Korth attempted to get Keenan to stop arguing, the fight commenced again. Defendant then punched Keenan who fell on top of Korth. As Keenan fell, Korth saw the defendant strike Keenan in the chest with a knife, which passed very close to her face. Keenan got up and walked a short distance and collapsed. Korth testified that Keenan did not have a weapon and that the fight did not last for more than five minutes. After the incident, the defendant walked away and proceeded to an area near a garage.

Jacqueline Gerasco, who attended the gathering with her boyfriend and Korth, testified that defendant and another man had harassed her at the party with descriptions of her physical attributes and called her obscene names. Defendant then pushed her, knocking her glasses from her face. According to Gerasco, Keenan then told defendant and his companion to leave her alone and defendant moved forward to push Keenan and a shoving and punching match began between them which lasted for about a minute. The fight subsided and then erupted again. Gerasco testified that Korth attempted to persuade Keenan to quit fighting, but was unsuccessful. The defendant lunged towards Keenan who fell on Korth and the defendant walked away. Keenan stock up momentarily, then collapsed. This witness did not see defendant wield a knife.

Doctor Helen Young, a forensic pathologist, conducted an autopsy of the victim and stated that he was 5 feet 2>xk inches tall and weighed 135 pounds. Keenan sustained a single stab wound on the right side of the chest, an abrasion on the left side of the forehead, and a bruise on the under surface of the scalp; that the wound to the chest cut through Keenan’s breastbone striking the pulmonary artery of the heart, causing his death. The doctor noted it would take a good degree of force to insert a knife through the sternum of an adult male.

Defendant testified at trial that he had been drinking in a bar earlier on the day of July 24 and drank beer at the party all night long. He stated that he was 10 to 15 feet from Keenan when a confrontation broke out and that approximately six persons were involved in a pushing and shoving fracas and the trading of punches. Defendant testified that he went to the aid of a friend and was struck several times and also that he hit a few people. Defendant denied that he had possessed a knife or other weapon or that he had stabbed anyone nor did he see anyone stabbed at the party.

After hearing arguments of counsel at the sentencing hearing, the trial court offered the defendant an opportunity to speak in his own behalf, but he declined to do so. The trial court thereupon reviewed the record of the case, including the presentence report, and stated that it “would be very difficult to say there was any opportunity for rehabilitation.” The court further found that there was no provocation for defendant’s action and that “the defendant had by far the advantage in the situation and would not let up, even though he was *** no danger whatsoever.” The court also noted that the defendant had previously been convicted of attempted murder. The trial court thereupon found that the defendant “showed a complete lack of mercy, complete recklessness, complete wanton behavior,” and concluded that defendant’s acts “were accompanied by exceptionally brutal conduct and by exceptionally heinous behavior indicative of wanton cruelty.” It thereupon imposed the sentence of natural life imprisonment from which defendant appeals.

Defendant contends first that under the facts of this case the murder was not accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty and the trial court was therefore not authorized to impose a sentence of natural life imprisonment. He argues that the victim initiated thé fight; that defendant’s conduct in inflicting the knife wound was not a preplanned or deliberate act, but rather occurred in the heat of the fight; and that defendant’s conduct in the present case, when compared to that which was found in other cases to justify either an extended term or a natural life sentence, was insufficiently egregious in terms of its brutality or heinousness indicative of wanton cruelty to warrant imposition of a life sentence under section 5 — 8—1(a)(1)(b) of the Code. He requests that this court exercise its authority under Supreme Court Rule 615(b)(4) (87 Ill. 2d R. 615(b)(4)) and reduce his sentence to a nonextended term of imprisonment.

The Unified Code of Corrections provides that the trial court may impose a sentence of natural life imprisonment for murder if the offense “was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty” (Ill. Rev. Stat. 1981, ch. 38, par. 1005— 8 — 1(a)(1)(b)). (People v. Holloway (1983), 119 Ill. App. 3d 1014, 1022; People v. Barber (1983), 116 Ill. App. 3d 767, 779.) The Code does not require, as a prerequisite to finding that the defendant’s behavior was brutal or heinous, a showing that torture or unnecessary pain was inflicted upon the victim. (People v. La Pointe (1981), 88 Ill. 2d 482, 501; People v. McGee (1984), 121 Ill. App. 3d 1086, 1089; People v. Goodman (1983), 116 Ill. App. 3d 125, 131-32.) Conduct is “heinous” if it is hatefully or shockingly evil, grossly bad, or enormously and flagrantly criminal. “Brutal” includes conduct which is grossly ruthless, devoid of mercy or compassion, or cruel and cold-blooded. 88 Ill. 2d 482, 501.

It is clear that the legislative sentencing scheme requires that the degree of brutality or heinousness must be exceptional. (People v. McGee (1984), 121 Ill. App. 3d 1086, 1089; People v. Fieberg (1982), 108 Ill. App. 3d 665, 670; People v. Schlemm (1980), 82 Ill. App. 3d 639, 651, cert. denied (1981), 449 U.S. 1127, 67 L. Ed. 2d 115, 101 S. Ct. 948), and, in evaluating the brutality or heinousness of a defendant’s conduct, the court must evaluate all of the facts surrounding the incident in question. People v. McGee (1984), 121 Ill. App. 3d 1086, 1089; People v. Grady (1982), 107 Ill. App. 3d 970, 977; People v. Devine (1981), 98 Ill. App. 3d 914, 925, cert. denied (1982), 458 U.S. 1109, 73 L. Ed. 2d 1371,102 S. Ct. 3490.

Defendant’s assertion that his conduct does not fall within the purview of section 5 — 8—1(a)(1)(b) because it occurred as a result of a fight which was initiated by the victim is not supported by the evidence. Keenan came to the place of his death in aid of a woman who was being harassed by defendant, and it was defendant who initiated the physical contact between them by striking Keenan in the face and knocking him down. After the initial flurry of blows had subsided, defendant again struck Keenan and knocked him down a second time and, while Keenan was falling, defendant inflicted the fatal knife wound. It is also apparent there was a substantial physical difference between Keenan and defendant, the victim being outweighed by approximately 50 pounds and being over seven inches shorter than the defendant. There can be no reasonable suggestion made under these facts that the defendant was in any personal danger when he stabbed Keenan, and clearly had no justification of self-defense in doing so.

Defendant further argues that his conduct in stabbing Keenan cannot be deemed exceptionally brutal or heinous behavior indicative of wanton cruelty because it was not a preplanned or deliberate act, but occurred in the heat of a fight. It is apparent, however, that insofar as Keenan was concerned the fight was over when the fatal wound was inflicted as Keenan was then falling to the ground. It has been determined that a murder which is premeditated and committed with cold-blooded deliberation does fall within the purview of section 5 — 8—1(a)(1)(b). (People v. La Pointe (1981), 88 Ill. 2d 482, 501; People v. DeSimone (1982), 108 Ill. App. 3d 1015, 1020; People v. Winston (1982), 106 Ill. App. 3d 673, 688.) While defendant’s conduct in the present case does not show the extended premeditation existing in the cases to which we have referred, it does demonstrate a coldblooded attack upon a person who had already been beaten in a fight.

Defendant compares the facts in this case to those in People v. Hudson (1981), 95 Ill. App. 3d 350, People v. Darnell (1981), 94 Ill. App. 3d 830, and People v. Merchel (1980), 91 Ill. App. 3d 285, in which the reviewing courts found defendant’s conduct to establish wanton cruelty, and argues that the indicia of wanton cruelty there demonstrated was far greater than his in the present case. It is also apparent, however, that defendant’s conduct in this case was more reprehensible, cruel and heinous than occurred in other cases which found a lack of exceptionally brutal or heinous behavior indicative of wanton cruelty. Compare People v. Reynolds (1983), 116 Ill. App. 3d 328, 332; People v. Fieberg (1982), 108 Ill. App. 3d 665, 669-71; People v. Lieberman (1982), 107 Ill. App. 3d 949, 959.

This court has recently held that a single act which causes death or injury may be sufficient to demonstrate the existence of wanton cruelty. (People v. McGee (1984), 121 Ill. App. 3d 1086, 1090-91; see People v. Strait (1983), 116 Ill. App. 3d 110, 115; People v. Rowe (1983), 115 Ill. App. 3d 322, 329.) It has also been held that a defendant’s subsequent demonstration of remorse for his conduct or the lack of a penitent spirit is an important factor in determining whether his conduct is indicative of wanton cruelty. (See People v. La Pointe (1981), 88 Ill. 2d 482, 501.) Here, defendant simply walked away from the victim after inflicting the knife wound and made no attempt to help him. Furthermore, when offered an opportunity to speak at the sentencing hearing, he declined to do so. No evidence is found in this record that defendant at any time exhibited sorrow or remorse for his conduct.

We conclude that the trial court did not abuse its discretion in sentencing defendant to natural life imprisonment.

Defendant also contends that section 5 — 8—1(a)(1)(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8— 1(a)(1)(b)) violates the Federal (U.S. Const., amend. XIV) and State (Ill. Const. 1970, art. I, sec. 2) constitutional guarantees of due process and equal protection. He notes that under that section of the Code the court may sentence a defendant who is convicted of murder to a term of natural life imprisonment if it finds that “the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” He also notes that a court may sentence a defendant to an extended term of imprisonment if it determines that “the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005— 8 — 2(a)(1); Ill. Rev. Stat., 1982 Supp., ch. 38, par. 1005 — 5—3.2(b)(2).) Therefore, defendant asserts, the Code provides two distinct penalties for one class of offenders without setting forth criteria for differentiating between those to be sentenced under the two provisions, and concludes that because the legislature provided no guidance to direct the trial judge in the exercise of his discretion to impose either a natural life or an extended-term sentence on the basis of this same factor, that section 5 — 8—1(a)(1)(b) is applied in an arbitrary and capricious manner and contravenes his right to due process. In addition, defendant concludes that his right to equal protection of the laws is violated because no rational basis exists for differentiating one class of offender who may be sentenced to natural life from another class of offender who may be sentenced to an extended term where both classes have committed murders accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.

Defendant, however, failed to raise the present constitutional challenge to the sentencing statute in the trial court either at the sentencing hearing or by post-trial motion and his failure to do so constitutes a waiver of that issue on review. (People v. Amerman (1971), 50 Ill. 2d 196; People v. Coleman (1983), 120 Ill. App. 3d 851, 853.) We note the same issue was recently considered and rejected in People v. Cartalino (1982), 111 Ill. App. 3d 578. See also People v. Perez (1983), 113 Ill. App. 3d 143,151.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

REINHARD and UNVERZAGT, JJ., concur.