text:
    MARY DAUBACH, Plaintiff-Appellant, v. KAZUO ISHIHARA, Defendant-Appellee.
    First District (2nd Division)
    No. 80-3229
    Opinion filed December 29, 1981.
    Rehearing denied February 5, 1982.

      James Lee Daubach, of Chicago, for appellant.
    Epton, Mullin, Segal & Druth, Ltd., of Chicago (Gerald B. Mullin and Mary F. Stafford, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Pursuant to the Illinois Paternity Act (Ill. Rev. Stat. 1977, ch. 40, par. 1351 et seq.), plaintiff, Mary Daubach, filed suit against defendant, Kazuo Ishihara, alleging that defendant had fathered a child born out of wedlock to plaintiff. Plaintiff sought child support and reimbursement for the reasonable expenses she incurred during her pregnancy, confinement and recovery. Based on the results of blood tests received into evidence, the trial court entered summary judgment for defendant. Plaintiff appeals, contending that the court erred in admitting the tests into evidence; that the tests, if admissible, did not support summary judgment; and that the court erred in denying plaintiffs motion to compel the taking of defendant’s deposition. For the reasons which follow, we reverse the judgment of the trial court and remand for further proceedings not inconsistent with this opinion.

Plaintiff’s action, instituted on November 11, 1979, alleged that defendant was the father of a child born to plaintiff on June 28,1978. The complaint asserted that plaintiff and defendant had lived together for 4M years from 1975 to 1979. Plaintiff claimed that dining this period she did not visit, socialize or associate with any man other than.defendant. In his answer defendant denied this allegation.

The child was conceived some time between September and November of 1977. Plaintiff stated that during this same period she had intercourse with defendant approximately 16 times. Defendant denied being the father of the child.

Prior to the commencement of this action, blood tests of the plaintiff, defendant and child were taken by Dr. Chang Ling Lee of Mount Sinai Hospital. Dr. Lee concluded that the tests excluded defendant from paternity of the child. Based on the results of these tests, defendant moved for summary judgment after plaintiff brought suit.

Upon agreement of the parties, the court ordered plaintiff, defendant and child to submit to a second set of blood tests to be conducted by a physician selected by plaintiff. The parties stipulated that “in the event exclusion [of defendant] is established by any blood test, the results thereof establishing such exclusion shall be admitted in evidence in this cause.” Based on the second set of blood tests, Dr. Takashi Okuno, Medical Director of the Blood Bank, Lutheran General Hospital, concluded that “the paternity of [defendant] appears to be excluded * * (Emphasis added.) The court granted defendant leave to file these test results.

Plaintiff filed a motion to compel defendant to appear for a deposition. The court denied plaintiff’s motion and at the same time granted plaintiff 21 days to respond to defendant’s motion for summary judgment. Plaintiff filed her own affidavit and that of Dr. Okuno in opposition to the motion for summary judgment.

The affidavit of Dr. Okuno, prepared by plaintiff’s attorney, stated in

part:

“That the results of his [Dr. Okuno’s] tests and those of Dr. Lee are inconclusive because they fail to exclude the following gene variant possibilities in Kazuo Ishihara:
A) E gene variants such as E", E", or E'
B) S gene variants such as S“, or S2
C) Fy gene variants such as Fy or Fy*.
Because of Mr. Ishihara’s racial background (Japanese), many more gene variants than cited in paragraphs A), B), and C) also can be assumed to exist, making test results even less conclusive.
That without the exclusion of those gene variants it is not possible to form an opinion based on a reasonable degree of medical certainty as to whether or not Kazuo Ishihara is the father of Allison Marie Ishihara.”

The court granted defendant leave to take the deposition of Dr. Okuno. In his deposition Dr. Okuno stated that, based solely on the test that he did and the ability to test for additional gene variants, “apparently exclusion of paternity exists.” Dr. Okuno stated further that, with excluding the possible gene variants E, S, and Fy, he could not conclude with certainty that the defendant was excluded as the biological father of the child born to plaintiff. The E, S and Fy gene variants were not tested because the reagents necessary for such tests are not available.

Plaintiff moved to exclude all evidence of the blood tests. Defendant moved to strike plaintiff’s motion and again moved for summary judgment. The trial court granted defendant’s motion to strike plaintiff’s motion to exclude the evidence of the blood tests on the basis that the “findings of the two respective doctors are not inconsistent but are substantially in agreement. That is with the results themselves and what was tested, and their results seem to be in agreement with each other.” The trial court then granted summary judgment in favor of defendant.

I

The first issue presented for review is whether the trial court properly admitted into evidence the results of the blood tests.

Section 1 of the Act on Blood Tests to Determine Paternity (Ill. Rev. Stat. 1977, ch. 40, par. 1401) states, in part, that “[t]he results of .the [blood] tests shall be receivable in evidence only if definite exclusion is established.” Dr. Lee concluded that defendant was excluded from paternity. Upon agreement of the parties, the court ordered plaintiff, defendant and the child to submit to a second set of blood tests to be conducted by a physician chosen by plaintiff. Plaintiff and defendant stipulated that “in the event exclusion is established by any blood test, the results thereof establishing such exclusion shall be admitted in evidence in this cause.” Section 4 of the Act on Blood Tests provides, in pertinent part, that “[i]f the experts disagree in their findings, such findings shall not be admissible, and the question of paternity shall be submitted upon all the evidence.” Ill. Rev. Stat. 1977, ch. 40, par. 1404.

It does not appear from the pleadings, affidavits and deposition included in the record that the conclusions of Dr. Lee and Dr. Okuno are in disagreement. In interpreting the blood tests performed by him, Dr. Lee states that “the father of the child 4,00 must have the genetic markers “S”, “e”, and “Fy6”. Since [defendant] lacks these markers, he is, therefore, excluded from the paternity of the child 0 *

Dr. Okuno’s report states in part:

“[T]he paternity of [defendant] appears to be excluded on the basis of:
a) his apparent homozygous genes of E, s, and Fy“ blood typings, and
b) the lack of E, s and Fy“ blood typings in the child ° * (Emphasis added.)

The child has the genetic markers “S”, “e” and “Fy6” which markers the defendant lacks. Tests performed by both doctors resulted in identical findings with respect to these markers. Dr. Okuno stated that because certain gene variants were not excluded, he could not conclude with absolute certainty that defendant was excluded from paternity. Dr. Okuno explained in his deposition, however, that the reason these certain gene variants were not tested was that the reagents necessary for such tests are not currently available. Dr. Okuno stated further that, based on the testing that may be done on these gene variants, he could never conclude with absolute certainty that defendant was excluded from paternity.

When asked if he could ever conclusively exclude someone from paternity, Dr. Okuno stated that when a child has a gene which neither parent possesses, paternity is excluded by “primary exclusion.” “Secondary exclusion” is established by testing for homozygosity and heterozygosity. In the case at bar, since plaintiff and the child have identical antigens, testing cannot be done by the primary exclusion method. Thus, the technique of secondary exclusion was utilized.

In an article entitled Current Status of Paternity Testing, 9 Fam. L. Q. 615, 622 (1975), Dr. Lee stated that:

“* * * exclusions which are based on the inference of homozygous genetypes determined by a negative reaction in a particular test are known as Indirect Exclusions, and should be accepted with caution. The particular test should be repeated with the same and different reagents or by a different technologist or in a different laboratory.” (Emphasis added.)

In the case at bar the blood tests were first conducted by Dr. Lee and then repeated by Dr. Okuno. The tests were repeated with the same reagents by two different technicians and in different laboratories. Dr. Okuno states, however, that although his interpretations of the test findings differ from that of Dr. Lee, the “findings are identical.”

The trial court determined that the findings of Dr. Lee and Dr. Okuno were not in disagreement with respect to defendant’s exclusion from paternity. The trial judge stated:

“He’s [Dr. Okuno] not really giving a contrary opinion. He’s not as certain as Dr. Lee perhaps but he’s still saying that at least what I read he is saying, is that under no circumstances would he 100% exclude anyone unless he went through a miriad [sic] of testing other things and that to me based on what I have is sufficient under the law and the statute to exclude the defendant in this case from being the father of the child. For that reason the motion for summary judgment is sustained.”

There appears to be ample foundation for concluding that the results of the tests performed by Dr. Lee and Dr. Okuno are not in disagreement. Therefore, under the provisions of the Paternity Act and the stipulation of the parties, the. trial court did not err in admitting the results of the blood tests into evidence.

II

The second and, in our opinion, dispositive issue presented by plaintiff’s appeal is whether summary judgment may be granted in a paternity action solely on the basis of the results of blood tests.

Section 4 of the Act on Blood Tests to Determine Paternity provides that “[i]f the court finds, as disclosed by the evidence based upon the [blood] tests, that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly.” (Ill. Rev. Stat. 1977, ch. 40, par. 1404.) Under section 2 of the Act “[t]he experts [who conduct the blood tests] shall be called by the court as witnesses to testify to then-findings of exclusion and shall be subject to cross-examination by the parties.” (Ill. Rev. Stat. 1977, ch. 40, par. 1402.) In People ex rel. Yarn v. Yarn (1979), 73 Ill. App. 3d 454, 457, 392 N.E.2d 606, the court stated:

“Section 2 of the blood test act provides, in mandatory terms, that the experts who conducted the tests shall be called by the court as witnesses and shall be subject to cross-examination by the parties. The plain language of the act mandates the right of the parties to be able to cross-examine the experts as to whether the tests were conducted and interpreted properly. Any other interpretation of section 2 would result in the disposition of many such suits without affording the parties the right of confrontation.”

Similarly, in People ex rel. De Vos v. Laurin (1979), 73 Ill. App. 3d 219, 223, 391 N.E.2d 164, the court held that “the exclusionary report in itself should not be used to deprive plaintiff of a trial to present its own testimony and to attack the credibility of the test. This is particularly so in the instant case, where [as in the case at bar] the conclusion of Dr. Lee was based on ‘our 000 current understanding of inheritance.’ ”

Based on the foregoing authorities, we conclude that the trial court erred in granting summary judgment for defendant. This conclusion makes it unnecessary to reach plaintiff’s third issue, i.e., that the trial court erred in denying plaintiff’s motion to compel the taking of defendant’s deposition.

For the reasons stated herein, we reverse the trial court’s entry of summary judgment in defendant’s favor and remand the cause to the trial court for further proceedings not inconsistent with this opinion.

Reversed and remanded.

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

       “Homozygosity” is defined as “the state of having identical genes at one or more paired loci in homologous chromosomes.” “Heterozygosity” is defined as “the state of having different allelic genes at one or more paired loci in homologous chromosomes.” “Homologous” means “identical with respect to their genetic loci.” “Allelic” means “relating to one or more of a series of genes that may occupy the same position or locus on a specific chromosome.” Steadman’s Medical Dictionary Illustrated (23d ed. 1976).

       Effective January 1,1981, this part of section 2 was amended and now reads that “[t]he experts may be called by the court as witnesses to testify to their findings and shall be subject to cross-examination by the parties.” (Emphasis added.) Since section 1 has been amended to allow introduction of evidence of inclusion, section 2 no longer limits the witnesses’ testimony to findings “of exclusion.”


source: Caselaw Access Project

author: JUSTICE PERLIN

license: Public Domain

text:
      In re APPLICATION OF COOK COUNTY TREASURER.—(THE PEOPLE ex rel. JULIA LARSON et al., Plaintiffs-Appellees, v. EDWARD J. ROSEWELL, Treasurer and Ex-Officio County Collector of Cook County, Defendant-Appellant.)
    First District (2nd Division)
    No. 81-789
    Opinion filed December 29, 1981.
    Rehearing denied February 9, 1982.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Thomas J. McNulty, Assistant State’s Attorneys, of counsel), for appellant.
    Bernard Allen Fried, of Chicago, for appellees.
   JUSTICE PERLIN

delivered the opinion of the court:

The County Collector of Cook County (Collector) appeals from the order of the circuit court entered pursuant to this court’s opinion and mandate in People ex rel. Larson v. Rosewell (1980), 88 Ill. App. 3d 272, 410 N.E.2d 404. In Larson we determined that the provision in section 235a of the Revenue Act (Ill. Rev. Stat., 1978 Supp., ch. 120, par. 716a), commonly referred to as the Scavenger Act, for the publication by the county collector of “an advertisement giving notice of the intended application for judgment for sale of all tracts of lands and lots upon which all or part of the general taxes for each of 5 or more years are delinquent” is mandatory. (88 Ill. App. 3d 272, 276-79.) We therefore held that “the county collector could not lawfully omit from the advertisement certain properties because actions for the unpaid taxes were pending against the owners of those properties.” (88 Ill. App. 3d 272, 279.) Following issuance of the mandate, the trial court ordered the Collector to advertise and offer for sale tax delinquent properties owned by Larson and other plaintiffs. With respect to the sale of these properties, the court also ordered the Collector to permit redemption under the provisions of the Scavenger Act in effect in 1979. These redemption provisions were amended by the legislature in 1980.

The Collector appeals contending (1) that the trial court exceeded the scope of this court’s opinion and mandate when it ordered the Collector to offer for sale properties owned by plaintiffs; and (2) that, assuming the order to offer for sale was not improper, the trial court erred in ordering the sale to be held under provisions of the Scavenger Act no longer in effect. For the reasons which follow, we affirm the trial court in part, reverse in part and remand with directions.

I

In Larson, we stated:

“We hold only that the county collector is mandated by the Scavenger Act to ‘publish an advertisement giving notice of the intended application for judgment for sale of all tracts of lands and lots upon which all or part of the general taxes for each of 5 or more years are delinquent.’ [Ill. Rev. Stat., 1978 Supp., ch. 120, par. 716a.] We express no opinion as to whether every parcel included in such advertisement must be the subject of a judgment for sale; 0 ° (Emphasis added.) 88 Ill. App. 3d 272, 278.

Seizing upon the italicized language, the Collector argues that in ordering him to offer for sale the tax delinquent properties owned by plaintiffs, “[t]he trial court clearly exceeded the mandate of this court 0 * V’ We cannot agree.

Section 235a of the Revenue Act (Ill. Rev. Stat., 1978 Supp., ch. 120, par. 716a) provides in part:

“The County Collector shall make application for judgment for sale as provided in this Section and the Court shall give judgment for such general taxes, special taxes, special assessments, interest, penalties and costs as are included in the advertisement and appear to be due thereon after allowing an opportunity to object and a hearing upon the objections as provided in Section 235 of this Act [ch. 120, par. 716], that such lands and lots be sold by the County Collector at public [sale] to the highest bidder for cash, notwithstanding the bid may be less than the full amount of taxes, special taxes, special assessments, interest, penalties and costs for which judgment has been entered.”

Under section 235a, the trial court must afford interested parties an opportunity to object to the Collector’s application for judgment and order of sale. Because of the possibility that an objector may have valid grounds for opposing the application, not every parcel included in the Collector’s advertisement will necessarily be subject to a judgment and order of sale. But the mere possibility that judgment may be denied has no bearing on the Collector’s statutory obligation to “ ‘publish an advertisement giving notice of the intended application for judgment for sale * * of tax delinquent properties and to make “ ‘° * “ application for judgment for sale * * on such properties. 88 Ill. App. 3d 272, 278.

The Collector’s duties under the Scavenger Act are mandatory. (People ex rel. Larson v. Rosewell (1980), 88 Ill. App. 3d 272, 276-77; In re Application of Rosewell (1981), 93 Ill. App. 3d 1106, 1108, 418 N.E.2d 53; In re Application of County Collector (1981), 101 Ill. App. 3d 498, 500.) Those duties include offering for sale propertiés on which judgment and order of sale has been entered. 101 Ill. App. 3d 498, 500-01.

The Collector contends, however, that the trial court lacked in rem jurisdiction to order the Collector to offer for sale the properties owned by plaintiffs because there was no “application for judgment [and order of sale] of the subject property before the trial court” and because “the court entered the order without entering judgment against the property after giving all interested parties the opportunity to object.” See Smith v. D.R.G., Inc. (1976), 63 Ill. 2d 31, 35, 344 N.E.2d 468.

In apparent contradiction to these assertions, the Collector also represents in his brief that the properties which are the subject of this appeal were submitted to the 1980 scavenger sale procedure. According to the Collector, “[a]n advertisement of notice of intent to apply for an order of judgment and sale was published,” and “[a]n application for judgment [and order of sale] was filed in Circuit Court.” Examination of the decision in In re Application of County Collector (1981), 101 Ill. App. 3d 498, which concerned the 1980 scavenger sale and included the properties involved in this appeal, confirms these representations.

The In re Application of County Collector opinion discloses that on July 21,1980, the Collector filed an application for judgment and order of sale. The application was continued to August 8, 1980, to permit any owner to object to the application. No such objections were filed and on August 8, 1980, the trial court granted judgment as prayed in the application. 101 Ill. App. 3d 498, 499.

It is evident from this recitation of facts that the Collector did file an application for judgment and order of sale, that interested parties were given an opportunity to object and that judgment and order of sale was entered. Although, on the Collector’s motion, the trial court in In re Application of County Collector subsequently amended the order of judgment and sale by deleting formally the parcels owned by plaintiffs and others from the 1980 scavenger sale, that order and related orders have been reversed. (101 Ill. App. 3d 498, 501.) That cause has been remanded with directions “that scavenger sales of all of the parcels of real estate [tjherein involved proceed in due course and in accordance with law.” (101 Ill. App. 3d 498, 501.) We conclude, therefore, that the trial court did not err in ordering the Collector to offer for sale the tax delinquent parcels owned by plaintiffs.

II

The Collector also contends that the trial court erred in ordering the Collector to permit redemption under the provisions of the Scavenger Act in effect in 1979. We agree.

In 1979 the Scavenger Act permitted redemption of property sold by payment of the amount bid plus interest. In 1980 the legislature amended the Act to increase the amount necessary to redeem by requiring that the entire amount of the delinquent taxes be paid. (Ill. Rev. Stat., 1980 Supp., ch. 120, par. 716a.) This amendment applies to all sales taking place after January 1, 1980, except for single-family residential units, and therefore controls the redemption of the properties which are the subject of this appeal.

In oral argument counsel for plaintiffs asserted, without citation of authority, that insofar as the amendment purports to govern the redemption of properties that should have been offered for sale before January 1, 1980, it interferes with plaintiffs’ constitutional right of redemption. (Ill. Const. 1970, art. IX, §8(b).) We cannot concur.

Section 8(b) of article IX of the 1970 Illinois Constitution states:

“The right of redemption from all sales of real estate for the non-payment of taxes or special assessments shall exist in favor of owners and persons interested in such real estate for not less than two years following such sales. Owners, occupants and parties interested shall be given reasonable notice of the sale and the date of expiration of the period of redemption as the General Assembly provides by law.”

We find nothing in the 1980 amendment which violates plaintiffs’ constitutional right of redemption. In effect, plaintiffs claim a vested right to the statutory provisions for redemption operative at the time the tax sales of these properties should have taken place. But our supreme court has held that “[a] taxpayer has no vested right in the continued existence of a tax statute. [Citations.]” Schlenz v. Castle (1981), 84 Ill. 2d 196, 208, 417 N.E.2d 1336.

The redemption of any tax delinquent properties sold after January 1, 1980, must be in accordance with the requirements of the amended Scavenger Act. We therefore reverse that portion of the trial court’s order which directed the Collector to apply the redemption provisions of the Scavenger Act in effect in 1979 to the redemption of these properties.

For the foregoing reasons, the trial court’s order requiring the Collector to advertise and offer for sale the tax delinquent properties owned by plaintiffs is affirmed; the order requiring the Collector to permit redemption under the provisions of the 1979 Scavenger Act is reversed, and the cause is remanded to the trial court with directions to proceed with the scavenger sales of all of the parcels of real estate herein involved in due course and in accordance with law.

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

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

       The Collector’s brief is replete with references to “remand” and “the mandate.” It should be noted that this cause was not remanded. The trial court’s judgment was reversed outright. The mandate included no instructions to the trial court.

       In light of the facts and decision in In re Application of County Collector, it is unnecessary to discuss the Collector’s arguments that the trial court should have dismissed the case as moot and that the court granted relief not requested by the complaint.


author: PRESIDING JUSTICE HARTMAN

text:
    WILLETT MOTOR COACH CO., Plaintiff-Appellant, v. BOARD OF EDUCATION OF THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (2nd Division)
    No. 81-1134
    Opinion filed December 29, 1981.
    Rehearing denied February 23, 1982.

      John R. Covington, Richard J. Cochran, and Marc D. Ginsberg, all of Tenney & Bentley, of Chicago, for appellant.
    Michael J. Murray, of Chicago (Richard E. Girard and Edward C. Peterson, of counsel), for appellee Board of Education of the City of Chicago.
    Thomas N. Todd, of Chicago, for appellees Rapid Transportation, Inc., and Robinson Bus Service, Inc.
    Robert S. Atkins and Susan B. Daumer, both of Freeman, Atkins & Coleman, Ltd., of Chicago, for appellees Student Transit Corporation and Northtown Bus Service, Ltd.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff Willett Motor Coach Co. (Willett), as a taxpayer, brought an action for injunctive and declaratory relief against the Board of Education of the City of Chicago (Board) and certain bus companies (defendants), which sought: (1) revocation of three-year contracts awarded for transportation of handicapped children attending Chicago public schools, ending August 31, 1983; (2) a requirement that the Board rebid those contracts; and (3) a declaratory judgment holding illegal the bidding procedure on which the subject contracts were predicated, and that all bids received pursuant thereto are null and void. Willett claimed that the Board failed to mail and that it did not receive a “Notice to Bidders” containing an amendment to the Board’s original solicitation for bids. After a bench trial, judgment was entered for the Board and defendants. Willett appeals.

The issue raised for our consideration is whether the trial court’s finding that the Board mailed the amendment to Willett was against the manifest weight of the evidence. A corollary issue is whether Willett proved a resultant true loss to general taxpayers as a result of the judgment.

From the evidence it appears that for the past 54 years Willett has provided busing services for the Board, transporting handicapped pupils attending Chicago public schools. On March 12,1980, the Board solicited bids for contracts to provide 403 vehicles for such transportation. Willett received the solicitation by mail on March 13, 1980. The solicitation required submission of bids no later than 2 p.m. on April 15, 1980, and provided, “this agreement will be subject to cancellation by the Board of Education of the City of Chicago in sixty (60) days’ written notice.” The solicitation was subsequently amended by two separate notices to bidders, the second of which, not a subject of controversy in this action, was received by Willett. The first amendment (“amendment”), dated March 21, 1980, which Willett claims it did not receive, changed the Board’s unilateral cancellation provision contained in the original solicitation to allow that either the Board or any contractor could cancel all obligations on 60 calendar days’ notice.

In its second amended complaint Willett alleged that: no notice of said amendment was mailed or communicated to Willett; without the amendment, a successful bidder would be required to perform its obligations for three years; on April 15, 1980, Willett submitted its proposal to the Board without having any knowledge or notice of its amendment; Willett’s estimates of possible labor increases and the cost of performance bonds would have been lower had it known of the amendment; consequently, its lack of knowledge placed Willett at an economic disadvantage; and, had Willett received or been aware of the amendment, it would have submitted a proposal to the Board in an amount less than the total amounts bid by the successful bidders.

At trial, Willett presented five witnesses and obtained a stipulation with respect to a sixth witness relative to the asserted lack of receipt of the bilateral cancellation amendment. William J. Merges, assistant director of purchases for the Board, was called by Willett pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60). He testified that in 1980 he was responsible for the preparation of bids. To secure the greatest number of qualified bids, they were mailed to all firms on a bidders’ list for bus transportation and advertisements were placed in the newspaper. In his opinion, the amendment might have had the effect of causing more bidders to bid on this contract; however, other regulation changes by the Board may have also had this effect. He did not personally inform Willett of the amendment. Prospective bidders were required to attach the solicitation for bids and amendments to bids to their proposals; however, the notice of the amendment at issue was not attached to Willett’s proposal. Bidders could submit either an “all-or-nothing” bid on all 403 buses, or could bid on a lesser quantity on a price per bus per day basis; thus the Board could compare one “all-or-nothing” bid, such as Willett submitted, to an accumulation of smaller bids. The total cost to the Board for the contracts awarded was $36,835,270.56. Merges did not personally mail notices of amendments.

Sharon Tlanda, a secretary employed by Willett, Inc., testified that she was responsible for sorting mail for all of the Willett companies, including Willett, Inc., and Willett Motor Coach Co. during the period in question. Plaintiff’s offices were one block away from her own. All mail for plaintiff was placed in a separate box. Mail from the Board was placed in the same box, and ultimately such mail went to William Hood, one of plaintiff’s officers. The receptionist, Kathy Pecoraro, also sorted mail. After the morning mail was sorted, someone from Willett, either Hood, Ray Skawski or Greg Bonnett, would pick up Willett’s mail. The same routine was followed after the afternoon mail delivery.

It was stipulated that testimony of Kathy Pecoraro would be the same as Tlanda’s except with regard to the afternoon mail.

Linda Keating, assistant secretary to the chairman of the board at Willett, Inc., testified that if any mail came from the Board she would inform Hood, and would either hold it until he picked it up or would take it to Willett’s mailbox. She forwarded all mail from the Board except checks.

Gregory Bonnett and Raymond J. Skawski, employees of plaintiff, both testified that on occasion they picked up the morning and afternoon mail for plaintiff from Willett, Inc. Unless mail was directed to a specific individual, they brought it to Hood, who also received all mail from the Board.

Andrew Langert, assistant treasurer for Willett, Inc., and vice president of finance for plaintiff, testified that his duties included the preparation of bid proposals submitted to the Board. When he worked on the subject proposal he was not aware of the amendment to the bid solicitation. Plaintiff had submitted two other bids, for two other contracts, to the Board, both of which contained bilateral cancellation provisions. Knowledge of the amendment would have been important in preparing the proposal because if Willett did not have the option to cancel a contract it would have less leverage in negotiating with its drivers’ labor union, which would in turn affect the cost estimate used in compiling the proposal.

William Hood, vice president of Spears Transportation, formerly vice president of plaintiff, testified that he was responsible for preparation of the subject proposal. He reiterated the routine for retrieving mail contained in previous testimony. Mail from the Board was addressed either to Willett, Inc.,' or plaintiff. Although he did receive the second amendment, which is not an issue in this lawsuit, he had no knowledge of the subject amendment until April 17, 1980, after bids were submitted, when Merges met with him and Langert and so informed them. The basic bid submitted by plaintiff was $225.84 per day per bus for a Type 1 bus. The “low price” on an alternative bid submitted was $196.74, which applied to a contract providing for older vehicles than those specified by the Board or where municipal bonds were to be used instead of performance bonds. Both were “all-or-nothing” bids. Had Hood had knowledge of the amendment, a bid would have been submitted from $163 to $168 per bus per day.

According to Hood, a subsequent bid submitted in July 1980, containing a mutual cancellation clause, on a contract involving over 300 buses, was $179.27 per day per bus, as the basic bid; an alternative bid of $164.47 per day per bus, for vehicles older than specified; and a second alternative bid of $177.05, in which municipal bonds were proposed instead of performance bonds. Another bid, predicated on a mutual cancellation provision regarding a contract for two buses for students attending O’Hare Airport, was for $225.84. A third bid involving 45 buses for children attending Walt Disney School, again based on a mutual cancellation clause provision, was for $225.84. Hood explained that the fewer buses contemplated in a bid, the higher the bid would be, since expenses would be divided among fewer vehicles.

David W. Howell, chairman of Willett, Inc., stated he had no knowledge of the amendment when bids were submitted and reiterated the ramifications thereof as explained by Hood.

James Watts, data coder for the Board, testified for the Board and defendants. During the time in question he was responsible for running the bids and labels for the Bureau of Purchases from vendor cards listing vendors for bus transportation. The vendor cards were placed in a machine which automatically printed labels therefrom. Cards could not be removed without a specific directive; he never pulled a card on his own initiative. He always counted the labels to make sure they corresponded to the number of vendor cards. The labeling process would also be used for amendments to Board solicitations of bids. After labels were produced, they were counted to ascertain whether they corresponded to the number of vendors on the list. If so, labels were taken by Watts to personnel to be pasted on envelopes, after which the envelopes were counted and compared to the number of vendor cards, and taken to the mailroom. There, the envelopes are put through a meter stamp machine. He had no specific recollection of having taken any of the steps in the process described above with respect to the amendment at issue, nor could he recall having actually mailed the envelopes. No other witness as to the mailing of the amendment at issue was produced.

The trial court found that too many people at plaintiff or Willett, Inc., handled mail addressed to Willett, so that plaintiff had not proved it had not received the notice of amendment, and denied plaintiff the relief it sought.

Willett argues that the trial court’s finding that the amendment was mailed to Willett was against the manifest weight of the evidence. It first maintains that the Board was obliged to mail the amendment to Willett, relying upon sections 34—21.3 and 10—20.21 of .the School Code (Ill. Rev. Stat. 1979, ch. 122, pars. 34—21.3 and 10—20.21) and chapter V, section 5—4 of the Rules of the Board, as amended September 28,1979. The latter section provides, in part:

“Solicitations of formal bids shall be advertised in a newspaper of general circulation published in the City of Chicago at least 10 days before the bid date, and by such other means that will secure the greatest number of qualified proposals * *

Willett asserts that the mailing of the notice of amendment constituted the “other means” specified, and that compliance with rules regarding competitive bidding, such as section 5—4, is a prerequisite to the formation of a valid contract between the Board and a successful bidder. As authority for this latter principle Willett cites Premier Electrical Construction Co. v. Board of Education (1979), 70 Ill. App. 3d 866, 871, 388 N.E.2d 1088. In that case a bidder who had not complied with certain statutory requirements for bidding attempted unsuccessfully to assert a contract between the Board and itself. Willett urges that here the evidence failed to demonstrate that the amendment was mailed to it; the Board, therefore, did not comply with its own rule, thereby denying to Willett an opportunity to submit a competitive proposal.

Willett insists that no evidence was presented by the Board that the amendment was mailed or even sent to the bid solicitation section for mailing; rather, evidence was presented only as to customary mailing procedures. It cites cases for the principle that although the mailing of a properly stamped and addressed letter raises the presumption the letter was received by the addressee, denial of receipt rebuts the presumption and receipt then becomes a question to be resolved by the trier of fact. Moreover, proof of customary practices regarding mailing procedures is insufficient to establish the mailing of a specific item and thereby raise the presumption. Among those cases are Meyer v. Krug (1939), 298 Ill. App. 625, 19 N.E.2d 111; State Bank v. Standaert (1948), 335 Ill. App. 519, 82 N.E.2d 393; M. S. Kaplan Co. v. Cullerton (1977), 49 Ill. App. 3d 374, 364 N.E.2d 381; and Lynn v. Village of West City (1976), 36 Ill. App. 3d 561, 345 N.E.2d 172.

The Board and other defendants seek to distinguish the foregoing authorities on several grounds. First, they argue that in those cases the proof of mailing was a statutory or contractual condition precedent to a party’s right of recovery or relief, in other words, that it was plaintiff’s burden in each case to prove mailing; and that mailing was a condition precedent to recovery. Here, they assert, the action was not brought by the party whose responsibility it was to prove mailing. We disagree. In M. S. Kaplan Co. v. Cullerton, an attempt was made to prove mailing of notice of a hearing regarding increased valuation of plaintiff’s property through evidence of records indicating the notice was prepared for mailing. Plaintiff sought to enjoin defendant from collecting taxes, claiming he had not received notice of a hearing. Plaintiff there, as here, alleged lack of receipt of notice, and the tax based upon the increased assessment was held void in the absence of evidence from the assessor that the notice of hearing was actually and timely mailed to plaintiff.

The Board and other defendants also claim that in the cases above-cited, as opposed to the case at bar, there was a statutory or contractual duty to mail the item in question and maintain that there is no such requirement here that the amendment be mailed. They thereby suggest either that the provisions of chapter V, section 5—4 do not necessitate a mailing, or that they do not apply to a notice of amendment. Merges, the Board’s assistant director of purchases, testified, however, that the language of section 5—4, “* * * such other means that will serve the greatest number of qualified proposals,” meant mailing to all the firms on the regular bidders’ list. He also stated that the same Board unit, the bid solicitation department, had the responsibility of mailing both the original bids and the notices of amendment. To hold that the Board was required to mail the original bids to all potential bidders, but that it was unnecessary to advise those bidders of substantive amendments to the requirements would be a mockery of the bidding process which * * necessarily implies equal opportunity to and freedom in all whose interests or inclinations might thus impel them to compete at the bidding.” Dement v. Rokker (1888), 126 Ill. 174, 196, 19 N.E. 33.

The Board and other defendants would distinguish the cited cases from the instant case in that none of those cited involved a mass mailing; therefore, they seek a more lenient standard of proof here. Although none of the cases cited expressly refer to a mass mailing, it is clear that some involved mailings which were not unique in character and at least one, in all probability, occurred on a large scale, e.g., M. S. Kaplan Co. v. Cullerton, which was concerned with tax collection procedures indubitably followed on a county-wide basis.

Appellees contend that, although the cases cited hold that mere proof of custom and practice regarding mailing is insufficient proof of the fact that a particular item was mailed, in the instant case there was more evidence of mailing adduced than that of business procedures. They suggest that because there is evidence that Willett received both the first solicitation of bids and the second amendment, the presumption is raised that Willett received the first amendment, citing a breach of contract case, Tabor & Co. v. Gorenz (1976), 43 Ill. App. 3d 124, 130, 356 N.E.2d 1150, in which defendants there denied receipt of a confirmation of an oral agreement sent by plaintiff. In Tabor, however, corroborating evidence, in addition to proof of office custom as to preparation, addressing, stamping and mailing of contract confirmations, was adduced, including: copies of the confirmation of contract forms sent to defendant; receipt by defendant of other mailings close in time to the transaction in question; defendant’s failure to complain about previous deliveries which were made in accordance with the disputed oral contract; and failure of defendant to keep accurate records of its business transactions. In contrast here, no evidence was presented by the Board that its mailing procedures were actually followed in the instance of the first amendment to bidding procedures under consideration. There was nothing to show that the amendment was mailed to any bidder on the list, whether to Willett or some other entity. The fact that several such notices of amendment were attached to submitted bids does not lead to the inference that they were received by mail; these bidders were also defendants in this case who could have easily supplied evidence at trial that they had received the notices of amendment by mail, and thereby filled this hiatus in proof that existed in the Board’s case. Under this state of the record, Tabor offers little support to defendants’ position.

Appellees further assert that evidence adduced by Willett failed to establish that it did not receive the notice of amendment, since several individuals handled the mail and delivered it from Willett, Inc., to plaintiff Willett Motor Coach Co.; mail from the Board was sometimes addressed to Willett, Inc., and sometimes to Willett Motor Coach; and there is no certainty that mail sent by the Board was not mishandled or lost by plaintiff’s employees. They also point out that the labels in evidence bear the name Willett, Inc., instead of plaintiff Willett Motor Coach Co. Evidence that neither corporation received the first amendment to bidding procedures was presented by plaintiff, however, including testimony by officers of both corporations, two mail sorters and three mail delivery people, which has already been described earlier in this opinion and need not be repeated here. That evidence related to every person in either corporation that would have had any contact with such mail.

A chancellor’s decree, based upon testimony given before him during trial, will not be reversed unless palpably contrary to the manifest weight of the evidence; however, where upon examination of the entire record, it appears that the decree cannot be justified by the record, it must be reversed. (Stephenson v. Kulichek (1951), 410 Ill. 139, 147, 101 N.E.2d 542; Goldblatt Bros., Inc. v. Addison Green Meadows, Inc. (1972), 8 Ill. App. 3d 490, 499, 290 N.E.2d 715; Liddell v. Smith (1965), 65 Ill. App. 2d 352, 357, 213 N.E.2d 604.) In the case before us, when Willett’s evidence of lack of receipt is considered in contraposition to defendant’s lack of evidence showing that the amendment to bid was actually mailed to anyone, we are forced to conclude that the chancellor’s conclusion was palpably contrary to the manifest weight of the evidence and must be reversed.

Appellees rely on cases which hold that in awarding a contract to the “lowest responsible bidder” for competitively bid contracts, public bodies have broad discretion with which courts will not interfere in the absence of fraud, and there is a presumption that the action of authorities in awarding contracts is regular and lawful. (Kelly v. City of Chicago (1871), 62 Ill. 279; People v. Kent (1896), 160 Ill. 655, 43 N.E. 760; Johnson v. Sanitary District (1896), 163 Ill. 285, 45 N.E. 213; Hallett v. City of Elgin (1912), 254 Ill. 343, 98 N.E. 530; People ex rel. Peterson v. Omen (1919), 290 Ill. 59, 124 N.E. 860.) In none of those cases, however, was it claimed by an unsuccessful bidder, as in the instant case, that a substantive amendment to bidding requirements which could have affected the bid amount, was not sent to, or received by, an interested bidder in the same manner as the solicitation for bid was sent. Appellees claim further that actions of public officials are presumed honest and regular, citing cases in which the honesty of public officials was in issue. (Smith v. Board of Education (1950), 405 Ill. 143, 89 N.E.2d 893; Tribune Co. v. Thompson (1930), 342 Ill. 503, 174 N.E. 561; Panozzo v. City of Rockford (1940), 306 Ill. App. 443, 28 N.E.2d 748.) Those cases weigh allegations of conspiracy and fraud charged against public officials, and motivation underlying their official acts. Here, Willett makes no charge of dishonesty; the thrust of this appeal is whether there was sufficient proof offered by the Board to link its regular solicitation for bid mailing procedures to the dissemination of the amendment to bid.

Appellees further argue that Willett has not demonstrated that if it had known about the amendment, it would have bid lower than other bidders. At the outset of our consideration of this contention, it may be observed that no finding was made by the chancellor in this aspect of the case; he did, however, deny appellees’ motion for judgment at the close of Willett’s proof on this point. No countervailing evidence was offered by appellees in this regard. We also note that evidence of what one “would have done” under circumstances other than those which actually obtained, necessarily partakes of some measure of speculation. Nevertheless, Willett assumed the posture of a taxpayer and, therefore, was obligated to prove that the action of the Board resulted in a true loss to the general taxpayer, which requires some measure of this type of evidence. Barrett v. City of Chicago (1956), 11 Ill. App. 2d 146, 154, 136 N.E.2d 564; People ex rel. Hamer v. Board of Education (1974), 22 Ill. App. 3d 130, 135, 316 N.E.2d 820; Lynch v. Devine (1977), 45 Ill. App. 3d 743, 749-50, 359 N.E.2d 1137.

The Board’s solicitation permitted bids to be submitted for all or any part of the required 403 buses. Willett was the only single bidder for all the buses. The award was made to 12 different bus companies. Their bids ranged from $134 per bus per day to $255.84 per bus per day. Hood, an officer who was, in part, responsible for the preparation of Willett’s bid submission, testified that had Willett known of the bid solicitation amendment providing for a 60-day bilateral cancellation clause, it would have bid from $163 to $168 per day per bus. Hood explained the basis for that statement. Willett was experiencing the highest labor costs in the city for its type of operation, necessarily a factor in the bid price. In order to remain competitive and in business, those costs had to be lowered; this, in turn, would lower the bid price. At the time of the bidding, Willett was in the midst of labor negotiations with its drivers’ union, and the 60-day cancellation clause would have provided Willett with necessary leverage in those discussions. Howell, chairman of Willett, Inc., the parent corporation, testified that he had assisted in the preparation of Willett’s bid. He explained that in the absence of the 60-day bilateral cancellation clause, Willett had no leverage with which to bargain with its union. The possibility of a strike under those circumstances would have increased the cost of a performance bond. With the cancellation clause, Willett could risk submitting a low bid and use the lower figure to negotiate a satisfactory wage agreement. Another factor that would have been considered was that the bilateral cancellation clause encouraged bids from many bidders who were unable to obtain performance bonds for a 3-year contract, which would have constituted an added incentive for submitting a lower bid. The 60-day cancellation clause required a bond that guaranteed no more than 60 days performance. Had Willett known this, it would have also known that it would have to bid lower to get the contract.

The savings to the Board and general taxpayers if Willett’s bid had been at the $163 to $168 per day per bus figure would have been substantial. Taking the higher figure of $168 per bus and multiplying by 403 buses, and then that product, $67,704, by the 528 days of contract duration, the final product is $35,747,712, or $1,087,558 less than the total cost to the Board of $36,835,270 by virtue of its acceptance of defendant’s bids. Such a savings would have been sufficient to satisfy the necessary showing in a taxpayer suit such as this that a true loss to the general taxpayer had been incurred by virtue of the Board’s procedures, or lack thereof, here.

From our consideration of the entire record, we are compelled to reverse the judgment denying Willett’s prayer for injunctive and declaratory relief, and remand to the circuit court of Cook County for entry of orders prayed for in Willett’s second amended complaint.

Reversed and remanded.

DOWNING and PERLIN, JJ„ concur.

       Plaintiff Willett Motor Coach Co. is a wholly owned subsidiary of Willett, Inc., which is also the parent corporation of Spears Transportation, Inc.

       We may not indulge in speculation as to whether rebidding of these contracts will meet or exceed, by virtue of inflation, the amounts previously bid in April of 1980.


author: JUSTICE STAMOS

text:
    LINDA WILLIAMSON, Petitioner-Appellant, v. EUGENE C. DOYLE et al., Respondents-Appellees.
    First District (2nd Division)
    No. 81-2516
    Opinion filed December 29, 1981.
    Patrick Quinn, of Hinsdale, and Joel Monarch, of Chicago, for appellant.

      Andrew M. Raucci, of Chicago, for appellee Municipal Officers’ Electoral Board of the City of Northlake.
    Franklin J. Lunding, Jr., of Chicago, for other appellees.
   JUSTICE STAMOS

delivered the opinion of the court:

Petitioner Linda Williamson appeals from an order of the circuit court of Cook County sustaining the decision of the Municipal Officers’ Electoral Board of the city of Northlake (the Board). The Board had sustained objections to a petition proposing a referendum question for the November 3, 1981, ballot in the city of Northlake. The proposed referendum deals with whether the city of Northlake should adopt an ordinance providing a procedure for recall of elected officials.

Petitions for placing this referendum question on the ballot were circulated pursuant to section 28—7 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 28—7). This section sets out the procedures to be followed relative to referenda authorized by article VII of the Illinois Constitution or section 5 of the Constitution’s Transition Schedule. The Transition Schedule has no application to the facts of the instant case, so the referendum in question is proper under section 28—7 of the Election Code only if the referendum is authorized by article VII of the Illinois Constitution.

Article VII applies to local governments. Section 7 of article VII applies to counties and municipalities, such as the city of Northlake, that are not home rule units. Section 7 states:

“[Municipalities which are not home rule units shall have only powers granted to them by law and the powers * * * (2) by referendum, to adopt, alter or repeal their forms of government provided by law; (3) in the case of municipalities, to provide by referendum for their officers, manner of selection and terms of office ° * (Ill. Const. 1970, art. VII, §7.)

The precise issue of this appeal is whether the enactment of a recall procedure is one of the proper uses of a referendum under article VII. In other words, can the phrase “to provide by referendum for their officers, manner of selection and terms of office” be read to mean “to provide by referendum for a means of removing officers?” We think not. Recall is a well-known procedure and acceptance of recall implies adherence to a particular view of the power of the electorate. (Compare Citizens Committee to Recall Rizzo v. Board of Elections (1976), 470 Pa. 1, 83-84, 367 A.2d 232, 274-75 (Roberts, J., dissenting), with In re Petition for Removal of Struck (1969), 41 Ill. 2d 574, 578-79, 244 N.E.2d 176.) Some States, by constitutional provision, make recall a fundamental right of the body politic. (See Wallace v. Tripp (1960), 358 Mich. 668, 101 N.W.2d 312 (construing article III, section 8 of the 1908 Michigan Constitution).) We believe that if the drafters of the 1970 Illinois Constitution had intended to include the recall power in section 7(3), they would have done so explicitly. The word “recall” does not appear in the 1970 Constitution. Our research reveals only one reference to recall in the Record of Proceedings of the Sixth Illinois Constitutional Convention. Member Proposal No. 224, offered by four delegates, recommended that the Constitution include provisions for, inter alia, recall of elected officers. (7 Proceedings 2937.) This recommendation was not acted upon. Nevertheless, it is apparent that the drafters were aware of the concept. This leads us to believe that the omission was not an oversight.

The cases cited by petitioner do not compel a broad reading of section 7(3) of article VII. In Clarke v. City of Arlington Heights (1974), 57 Ill. 2d 50, 54, 309 N.E.2d 576, our supreme court held that an article VII referendum was properly used to change the office of city clerk from an appointive to an elective position and to change the number of trustees and their terms of office. These alterations in the city’s governing structure are clearly within the Constitution’s language, “to provide for its officers, their manner of selection and terms of office.” (Ill. Const. 1970, art. VII, §6(f) (applicable to home rule municipalities).) In Boytor v. City of Aurora (1980), 81 Ill. 2d 308, 314, 410 N.E.2d 1, the court held that municipalities can choose by referendum to have nonpartisan elections in lieu of partisan contests. This is an alteration in the “manner of selection.” A recall procedure, however, is a manner of “de-selection” and does not comfortably fit within any of three categories of section 7(3), as do the procedures allowed in Clarke and Boytor.

Petitioner argues that the Constitution’s silence on the subject of recall does not necessarily imply that the procedure is impermissible. Petitioner cites cases from Washington and Tennessee for the proposition that, absent specific constitutional authority, a valid recall ordinance can be adopted. (See Hilzinger v. Oilman (1909), 56 Wash. 228,_, 105 P. 471, 474; Roberts v. Brown (1957), 43 Tenn. App. 567, 594, 310 S.W.2d 197, 210.) Petitioner’s argument is persuasive, although inapposite. There was no specific authority for recall in the 1870 Illinois Constitution. A recall provision was nevertheless enacted as part of the Illinois Municipal Code. (See Ill. Rev. Stat. 1967, ch. 24, par. 4—7—1 et seq.) This provision was held unconstitutional in In re Petition for Removal of Struck (1969), 41 Ill. 2d 574, 244 N.E.2d 176, but on the narrow ground that it was unconstitutional special legislation because it applied only to one form of local government and not to other forms. The supreme court, while expressing no opinion on the wisdom of the recall procedure, stated that, if adopted, it should apply to all forms of government or all forms should be free to adopt it. (41 Ill. 2d 574, 579.) The holding implies that an even-handed recall statute would have been constitutional under the 1870 Constitution. Since the 1970 Constitution is also silent on the subject, a recall statute would likely be constitutional. The 1970 Constitution gives home rule units broad legislative powers and states that those powers are to be construed liberally. (Ill. Const. 1970, art. VII, §6.) Consequently, a home rule unit could enact a valid recall ordinance. Non-home rule units such as the city of Northlake do not have such power.

The issue before this court, however, is not whether a recall procedure can be enacted by ordinance. The question is whether recall can be adopted by municipal referendum. In this respect, the powers of municipalities, whether home-ruled or not, are identical. (See Pechous v. Slawko (1976), 64 Ill. 2d 576, 582-83, 357 N.E.2d 1144 (holding that the referendum powers of home rule units and non-home rule units are the same).) We find that article VII of the Illinois Constitution does not contemplate the use of referenda to adopt recall procedures.

Petitioner argues that the electorate should be able to do directly what the Constitution allows to be done indirectly. Petitioner correctly contends that a referendum can be used to abolish an office. Petitioner contends that the electorate could then, by a second referendum, recreate the office. The original officeholder, who would have been unseated as a result of the first referendum, would in effect have been “recalled.” While this cumbersome procedure would lead to the same result as a recall election, we take issue with the underlying premise. The fact that a result might be reached by a circuitous route does not mean that the straight path to that end is a legal one.

We hold that article VII of the Illinois Constitution, which gives voters the power by referendum to adopt or alter forms of local government and establish public offices, does not authorize the use of a referendum to establish a procedure for recall of elected officials. The decision of the trial court sustaining the ruling by the electoral board was therefore correct.

Affirmed.

DOWNING and PERLIN, JJ., concur.

        Clarke and Boytor dealt with home rule units and construed the constitutional provision applicable to such municipalities. (Ill. Const. 1970, art. VII, §6(f).) Section 7 of article VII is a parallel provision applicable to non-home rule units. Both sections originated in the same section of an earlier draft of the constitution and our supreme court has held that the referendum right of home rule units and non-home rule units are the same. See Pechous v. Slawko (1976), 64 Ill. 2d 576, 582-83, 357 N.E.2d 1144.


author: PRESIDING JUSTICE RIZZI

text:
    DEERE & COMPANY, Plaintiff-Appellant, v. MORGAN M. FINLEY, Clerk of the Circuit Court of Cook County, Defendant-Appellee.—(INTERNATIONAL HARVESTER COMPANY et al., Intervenors-Defendants-Appellees.)
    First District (3rd Division)
    No. 79-1638
    Opinion filed December 30, 1981.
    John J. Coffey, of Rothschild, Barry & Myers, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Paul P. Biebel, Jr., and Susan Condon, Assistant State’s Attorneys, of counsel), for appellee Morgan M. Finley.
    Howard W. Clement and William A. Webb, both of Hume, Clement, Brinks, William & Olds, Ltd., of Chicago, for appellee International Harvester Company.

      Phillip H. Mayer and Raymond I. Suekoff, both of Chicago (Leydig, Voit, Osann, Mayer & Holt, Ltd., and Suekoff & Silverman, of counsel), for appellee Sperry Rand Corporation.
   PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

This is an action seeking a writ of mandamus from the circuit court to compel Morgan M. Finley, clerk of the circuit court of Cook County, to allow plaintiff, Deere & Company, to inspect and copy the contents of the court file in a previously dismissed suit between International Harvester Company and Sperry Rand Corporation, both intervenors in this action. The trial court dismissed the mandamus action for the reason that the file in the previous case was impounded. We reverse and remand with directions.

In 1973, International Harvester brought an action (73 L 5670) against Sperry Rand. According to International Harvester and Sperry Rand, some of the documents filed in that case involved trade secrets. Subsequently, three circuit court judges entered protective orders requiring the confidentiality of certain materials to be maintained. The case was eventually settled, and it was dismissed on January 22, 1975.

On November 15, 1978, plaintiff, a competitor of International Harvester and Sperry Rand, brought this suit to compel the clerk of the circuit court to produce the file in 73 L 5670. According to the complaint, the clerk refused to permit inspection of the file because the file had been impounded. International Harvester and Sperry Rand subsequently intervened in the suit.

On March 7, 1979, the trial court dismissed the action sua sponte. Plaintiff filed a motion to reconsider the dismissal. The court continued the hearing on the motion for reconsideration and ordered the clerk to deliver the file for an in camera inspection. After the court conducted an in camera inspection in the presence of counsel for International Harvester and Sperry Rand, it denied plaintiff’s motion to reconsider. The court stated that it was acting on the basis of the orders that had been entered by three circuit court judges and that it was of the opinion that the orders were broad enough to require the court to keep the entire file impounded.

Plaintiff argues that court files are public files generally open to inspection, and therefore, it has a right to inspect the file in 73 L 5670. Plaintiff contends that section 16 of “An Act to revise the law in relation to clerks of courts” (Ill. Rev. Stat. 1977, ch. 25, par. 16) establishes unrestricted public access to court files. The statute provides:

“All records, dockets and books required by law to be kept by such clerks shall be deemed public records, and shall at all times be open to inspection without fee or reward. And all persons shall have free access for inspection and examination to such records, docket and books, and also to all papers on file in different clerks’ offices and shall have the right to take memoranda and abstracts thereto.”

Plaintiff correctly notes that this statute generally grants free access to public records such as the court file involved in this case. However, as plaintiff recognizes in its reply brief, a court has certain inherent power to control its records, and thus, the right to inspect public records is not absolute. (See Nixon v. Warner Communications, Inc. (1978), 435 U.S. 589, 598, 55 L. Ed. 2d 570, 580, 98 S. Ct. 1306, 1312; In re Estate of Hearst (1977), 67 Cal. App. 3d 777, 783, 136 Cal. Rptr. 821, 824.) The existence of the statute permitting access to these records does not abrogate the trial court’s inherent power to control its files and to impound any part of a file in a particular case. (See State ex rel. Ampco Metal, Inc. v. O’Neill (1956), 273 Wisc. 530, 536, 539-40, 78 N.W.2d 921, 925-26.) Therefore, we reject plaintiff’s contention that the trial court did not have the power to impound the court file in order to protect the rights of the parties as to trade secrets. See generally Annot., 62 A.L.R.2d 509 (1958).

We next consider to what extent the file in 73 L 5670 is impounded. Plaintiff argues that the orders do not impound the entire file while International Harvester and Sperry Rand contend that the entire file is impounded.

On June 12, 1973, Judge Mel R. Jiganti entered an agreed protective order which provided that all documents, materials, testimony or other matters developed during the course of discovery or at trial would be used solely for purposes of the lawsuit. In the event any such matters were designated as confidential, they would be maintained in confidence. The order further recited that if any such confidential information was embodied in any document ultimately filed with the court, it should be designated as confidential, and it would be maintained in camera. If desired or requested by either party, such documents could be filed in sealed envelopes on which would be written the title and docket number of the case, an indication of the nature of the contents of the envelope, a legend designating the matter as confidential and a statement in substantially the following form:

“This envelope containing documents which are filed in this case by [name of party] is not to be opened nor the contents thereof displayed or revealed except by order of the Court.”

Any deposition transcripts or portions thereof containing confidential information were to be designated as such, and upon filing they would remain confidential until further order of the court.

We agree with plaintiff that this order does not automatically impound the entire file. However, the order does set forth a procedure for preserving the confidentiality of certain materials. Therefore, the file is impounded to the extent that the parties followed the procedure and designated any filed documents or deposition transcripts as confidential or as filed in camera. Also, under the circumstances involved here, the term “documents” is broad enough to encompass pleadings. Therefore, if confidential information was contained in documents filed as pleadings and the documents were properly designated, these documents are protected under the order. As to those portions of the file not designated as confidential or as filed in camera, plaintiff is entitled to examine the file. The fact that the order was an agreed order does not affect this result. The order was more than an agreement between the parties. It was an order entered and approved by the court, and therefore, it was an exercise of judicial power. See Pope v. United States (1944), 323 U.S. 1, 12, 89 L. Ed. 3, 11, 65 S. Ct. 16, 22.

We next examine the order entered by Judge Samuel B. Epstein on March 21,1974. The order stated that all transcripts of hearings held in the case, all pleadings, deposition transcripts, exhibits and related materials filed with the court would be sealed and maintained in camera. The next to last paragraph of the order stated, “This order shall expire on January 1, 1975.” International Harvester and Sperry Rand interpret this paragraph to apply only to the restrictions recited in the immediately preceding paragraph in the order. They also contend that the last paragraph of the order impounding the order itself overrides the expiration clause. We do not find either of these arguments convincing. The language of the order makes it clear that Judge Epstein intended that the entire order would expire on January 1,1975.

Also in regard to Judge Epstein’s order, International Harvester and Sperry Rand argue that since it was an agreed order, the paragraph mandating the sealing of materials on file with the court was a designation pursuant to Judge Jiganti’s order. Judge Jiganti’s order requires the particular document, transcript or envelope to be designated as confidential, and therefore, we do not believe that the paragraph in Judge Epstein’s order is sufficient to qualify as a designation under Judge Jiganti’s order. Consequently, Judge Epstein’s order is not effective to impound any part of the file in 73 L 5670.

The final protective order was entered by Judge Sheldon Brown on October 22, 1974. The order provided that all documents, materials, information or testimony relating to the marketing plans or marketing data or information of either party was to be used solely for purposes of the lawsuit. All deposition transcripts referring or relating to such materials were to be filed in camera. It was further ordered that the party desiring a document to fall under the terms of the order should stamp the pertinent document “restricted.” The order also provided that at the conclusion of the litigation, all such materials were to be returned to the party producing them.

Plainly, Judge Brown’s order does not impound any part of the file in 73 L 5670. The order provides that at the conclusion of the litigation, all of the documents protected under the order were to be returned to the party producing them. Therefore, none of these protected documents should be in the file at this time. In addition, this provision indicates that the order was not intended to impound any materials after the conclusion of the litigation.

It follows that of the three orders related to impoundment, only Judge Jiganti’s order is effective to impound any part of the file and then only to the extent that the parties have properly designated the materials. The parties have properly designated some materials, and thus, they will remain impounded. Specifically, 14 envelopes were filed with the trial court, most of which were designated as confidential or as having been filed in camera. Those envelopes designated as such, as well as a few other filed documents similarly designated, shall remain impounded, and plaintiff has no right to view or inspect those materials. Also, the clerk of the appellate court is directed to seal these impounded documents and transmit them to the circuit court, where they are to remain impounded until further order of a court having jurisdiction of the matter. As to the remainder of the file, we remand the case to the circuit court with directions to order the clerk of the circuit court to make it available to plaintiff. Since we have segregated the documents which are to remain impounded, the only act which remains for the clerk of the circuit court to perform is the ministerial act of producing the remainder of the file for plaintiff’s inspection.

Accordingly, the order dismissing plaintiff’s complaint is reversed, and the case is remanded with directions as stated herein.

Reversed and remanded with directions.

McNAMARA and WHITE, JJ., concur.


author: JUSTICE McGILLICUDDY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERNESTO GARCIA, Defendant-Appellant.
    First District (3rd Division)
    No. 79-2025
    Opinion filed December 30, 1981.

      George M. Zuganelis, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, Adrienne Noble Nacev, and Mark A. Graf, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

Following a jury trial the defendant, Ernesto Garcia, was convicted of three counts of aggravated battery and one count of armed violence. The defendant was found not guilty of attempt murder. The trial court merged the three counts of aggravated battery into the armed violence count and entered judgment on this latter count and sentenced the defendant to six years imprisonment.

On appeal the defendant contends (1) that he was not proved guilty of armed violence beyond a reasonable doubt since the State did not prove beyond a reasonable doubt that he did not act in self-defense; (2) that the trial court erroneously denied his motion to dismiss the charge of armed violence; (3) that the trial court improperly limited cross-examination; (4) that he was denied a fair trial because the trial court limited his closing argument; and (5) that certain evidence was improperly excluded.

Ramon Rios, age 20, testified that on November 7,1978, he lived with his family at 1845 North Sawyer in Chicago. At approximately 3 p.m., he drove Ruban Granica, a friend from high school, to the apartment of Ruban’s estranged wife, Ebby. Ramon went to the door and spoke to Ebby’s son. Thereafter, Ebby and her two children entered Ramon’s car, and Ramon drove them to the home of Ebby’s parents which was located on the same block as Ramon’s home.

The following evening at approximately 7 p.m., Ramon was at the home of his brother-in-law who also lived on the 1800 block of North Sawyer. Ramon’s girlfriend (now his wife), Theresa Reibeling, joined him. Subsequently, the couple left the house and began walking home. Ramon observed the defendant, Ebby, and a third man approach them. Ramon and Theresa stopped two or three steps south of a gangway. After asking “Are you Ramon?” the defendant pulled a revolver from his waistband.

Ramon pushed Theresa to the side and ran east into the gangway. Ramon heard one shot and brushed against both sides of the gangway. He heard a second shot which hit him in the right upper shoulder and exited through his chest. Ramon fell and the defendant ran. The wound resulted in scarring and the partial loss of the use of Ramon’s right arm. Ramon exhibited the entrance and exit scars to the jury.

Ramon denied gesturing as if he were reaching for a gun before the defendant shot him. He stated that he did not own a gun and was not a gang member. Ramon stated that he knew members of the Imperial Gangsters gang and that he had travelled with them. He explained that he meant that he had accompanied gang members on grammar and high school trips. On cross-examination, Ramon agreed that “travel” also meant “to get high with someone and get in trouble with someone.”

Theresa Reibeling Rios corroborated her husband’s testimony concerning his encounter with the defendant.

Officer John Carney of the Chicago Police Department testified that he wrote in his report concerning the shooting that Ramon and Theresa were sitting in front of his brother-in-law’s house when approached by the defendant.

Evelyn Garnica, also known as Ebby, testified that on November 7, 1978, Ramon and her husband came to her apartment and forced her and the children into Ramon’s car. Ramon drove them to Ebby’s mother’s house. Ruban and Ebby argued, and Ruban hit her. Subsequently, upon Ebby’s request, Ruban drove her and the children to a doctor’s office. They argued and when Ebby attempted to get out of the car, Ruban slapped her and took her jewelry. Ebby informed the defendant, her boyfriend, of these events.

The defendant testified that when Ebby told him what Ramon and Ruban did to her, he bought a gun. The following evening the defendant, Ebby and Rlas Manfreddy went to Ramon’s home to inquire of Ruban’s whereabouts. The defendant observed Ramon and Theresa sitting on a neighbor’s porch. The defendant approached Ramon and asked if Ramon had gone to the defendant’s home. Ramon responded, “yes, so what” and pulled down the zipper on his sweater. Ramon put his hand inside the sweater. The defendant believed that Ramon was reaching for a gun. The defendant pulled out his gun and shot Ramon. Ramon then ran. The defendant also ran and accidentally pulled the trigger on his gun a second time. The defendant subsequently turned himself in to the police.

The defendant’s version of the shooting was corroborated by Ebby and Manfreddy.

The parties stipulated that if a Dr. Raquero was called as a witness, he would testify that Ramon sustained a gunshot wound in the right shoulder with an entrance in the uppermost aspect of the right arm posteriorly on the deltoid area and the wound exit was localized in the anterior chest.

I

The defendant first argues that the State failed to prove beyond a reasonable doubt that he did not act in self-defense. The issue of self-defense is a question of fact to be resolved by the trier of fact. This factual finding will not be disturbed on review unless it is so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of guilt. People v. Perez (1981), 100 Ill. App. 3d 901, 427 N.E.2d 229; People v. Chapman (1977), 49 Ill. App. 3d 553, 364 N.E.2d 577.

, The defendant contends that the fact that the bullet entered Ramon’s body under the right arm pit corroborates his claim that Ramon turned his right shoulder toward the defendant and appeared to reach for a gun. However, the record does not indicate that the bullet hit Ramon under the right arm pit. It was stipulated that Dr. Baquero would testify that the bullet entered the posterior of the right arm. We cannot say that this testimony is inconsistent with Ramon’s claim that the bullet hit him as he ran down the gangway. Furthermore, the jury had the opportunity to examine the precise locations of the scars and was in the best position to determine whether the location of the scars was consistent with Ramon’s testimony.

The defendant also argues that Ramon and Theresa’s testimony was impeached by the police report which indicated that they were on the steps of Ramon’s brother-in-law’s house when the incident occurred. He also points out a few minor contradictions in their testimony. However, slight testimonial discrepancies do not destroy the credibility of a witness but go to the weight of that testimony. People v. Schultz (1981), 93 Ill. App. 3d 1071, 418 N.E.2d 6.

The defendant additionally contends that Ramon lied about his association with the Imperial Gangsters. Ramon stated that he travelled with gang members on school trips. On cross-examination Ramon agreed that travel also meant “to get high with someone and get in trouble with someone.” Although defendant. contends this testimony shows that Ramon “deliberately lied,” one could reasonably conclude that Ramon simply agreed that travel has more than one meaning.

The jury heard conflicting testimony concerning the circumstances surrounding the shooting. Ramon and Theresa testified that the defendant produced a revolver and shot Ramon as Ramon fled down a gangway. The defendant, Ebby and Manfreddy testified that the defendant shot Ramon after Ramon gestured as if he were reaching for a gun. After hearing the conflicting testimony and evaluating the parties’ credibility, the jury rejected the defendant’s claim of self-defense. We cannot say that such a conclusion was so unreasonable as to raise a reasonable doubt of guilt.

II

The defendant next contends that the trial court erroneously denied his motion to dismiss the charge of armed violence. A person commits armed violence when, while aríiféd with a dangerous weapon, he commits any felony defined by Illinois law. Ill. Rev. Stat. 1979, ch. 38, par. 33A—2.’

The defendant contends that the armed violence charge, which was based on the felony of aggravated battery, constituted a double enhancement of the penalty for battery. The defendant relies on People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, in which the defendant was charged with armed violence in that while armed with a dangerous weapon, he committed an aggravated battery in violation of section 12—4(b)(1) of the Criminal Code of 1961. That section states that a person commits the felony of aggravated battery if he uses a deadly weapon while committing a battery. (Ill. Rev. Stat. 1979, ch. 38, par. 12—4(b)(1).) In Haron, our supreme court noted that pursuant to section 12—4(b)(1), the offense of battery, a misdemeanor, was enhanced to the offense of aggravated battery, a felony, because of the use of a deadly weapon. The court refused to apply the armed violence statute because:

“Our review of the language of the statute and the authorities leads us to conclude that the General Assembly did not intend that the presence of a weapon serve to enhance an offense from misdemeanor to felony and also to serve as the basis for a charge of armed violence. In our opinion the requirement of section 33A—2 that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony without enhancement by the presence of a weapon.” 85 Ill. 2d 261, 278.

The instant case is clearly distinguishable from Harón. Here the armed violence charge was based on aggravated battery as defined in section 12—4(a) of the Criminal Code of 1961, which states that a person commits the felony of aggravated battery if, in the commission of a battery, he intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement. (Ill. Rev. Stat. 1979, ch. 38, par. 12—4(a).) Such an act is always a felony regardless of whether the defendant uses a deadly weapon. Thus, the armed violence charge in the instant case was based on the commission of a felony, and it did not constitute a double enhancement of the penalty for a battery. Therefore, the defendant’s motion to dismiss that charge was properly denied. See People v. Ross (1981), 100 Ill. App. 3d 1033, 427 N.E.2d 955.

Ill

The defendant next contends that the trial court improperly limited cross-examination on several occasions. The scope of cross-examination rests within the sound discretion of the trial judge whose restrictions will not be reversed except in a case of a clear abuse of discretion. People v. Hiller (1980), 92 Ill. App. 3d 322, 415 N.E.2d 1202.

The defendant first asserts that the trial court improperly prevented Ramon from stating the contents of a conversation he had with Ruban prior to trial. We believe that the court’s ruling was proper since the questions were designed to elicit hearsay testimony.

The defendant’s next objection concerns Ramon’s testimony that as he ran down the gangway, his right shoulder touched one house and his left shoulder touched the other house. Defense counsel asked Ramon, “Did you tell that to my representative this afternoon when we interviewed you?” The State’s objection to this question was sustained by the trial court.

Defendant contends that he was entitled to impeach Ramon by showing the omission of this matter from his earlier statement. A witness’ failure to state a particular fact under circumstances rendering it incumbent upon him to, or likely that he would state such fact, if true, may be shown to discredit his testimony as to such fact. (People v. Svoboda (1979), 75 Ill. App. 3d 487, 394 N.E.2d 72.) We do not believe that Ramon’s failure to describe the manner in which he ran down the gangway in an interview with defendant’s representative impeached his credibility. It is unlikely that Ramon would have mentioned this detail unless the representative specifically asked him about it. Thus, no prejudicial error occurred in this regard.

Defendant also objects to the following limitation. On cross-examination, Ramon gave two different answers to a question. On redirect Ramon clarified his answer, and on recross, Ramon stated that he had not understood defense counsel’s question. Counsel then asked, “What didn’t you understand about the question?” “Is there a particular word you didn’t understand?” The State objected to these questions, and the trial court sustained the objections. In view of the slight probative value provided by the information sought by defense counsel, we cannot say that the court’s ruling was an abuse of discretion.

Finally, the defendant contends thát the trial court improperly limited his attempt to show Theresa’s bias. The trial court sustained objections to the following questions: “Isn’t it true that because of what you think Ernie did, you hate him?” and “You would like to see Ernie punished wouldn’t you?” The, reason for the court’s ruling was that the questions were argumentative, and we believe that this conclusion was proper.

IV

The defendant also argues that he was denied a fair trial because the trial court limited his closing argument. In his argument defense counsel attempted to define reasonable doubt. The trial court told him that “The Court will instruct the jury on the law. Confine yourself to the evidence.”

Because there is no better definition of reasonable doubt than the words themselves, the concept of reasonable doubt needs no explanation. (People v. Jenkins (1980), 89 Ill. App. 3d 395, 411 N.E.2d 1047.) It is improper for an attorney to attempt to define this concept. (People v. Amos (1977), 46 Ill. App. 3d 899, 361 N.E.2d 861.) Thus, the trial court properly directed counsel to refrain from such an attempt.

V

The defendant’s final argument is that the trial court erroneously prevented him from testifying that Ruban had previously threatened him. Although the court did sustain an objection to a question concerning the threat, defendant was later allowed to testify that he carried a gun because Ruban had threatened him. Thus, there is no factual basis for this argument.

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

Affirmed.

RIZZI, P. J., and WHITE, J., concur.