text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE BERRY, Defendant-Appellant.
    Fourth District
    No. 4 — 83—0664
    Opinion filed May 10, 1984.
    Daniel D. Yuhas and John J. Hanlon, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Nancy Owen, State’s Attorney, of Charleston (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Defendant was charged with two offenses of residential burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19 — 3) in the circuit court of Coles County. His motion to suppress his confessions was denied and the case then proceeded to a stipulated bench trial. He was found guilty and sentenced to four years’ imprisonment. This appeal followed.

The facts are not in substantial dispute. Two break-ins occurred in homes in Coles County in February and April 1983. A detective investigating the incidents was told by a neighbor that she had seen the defendant walking in the area at about the time of the April offense. He therefore determined to question defendant about the incidents.

Defendant lived with his parents in the neighborhood of the burglarized premises. He was 17 years old and attended classes in Paris, Illinois, for the educable mentally handicapped, his I.Q. being about 80. His ability to read and write and comprehend was limited; he had no prior criminal record.

The detective, Redden by name, went to defendant’s house and requested him to come to headquarters. He did so later that day in the company of his mother. Redden took him to a basement room; the door was not locked, but closed with another officer stationed outside. Defendant’s mother remained elsewhere in the building. Redden testified at the motion hearing that he told the defendant he was not under arrest and could leave at any time.

An interrogation followed during which defendant admitted his guilt and agreed to give a taped statement. During the interrogation defendant was questioned about an unrelated case involving another person who was a friend. He was also told that fingerprints had been found at the scenes of the burglaries and that they would be compared to his.

Later defendant gave two taped statements in the presence of his mother and the two officers. In substance, he admitted breaking into the residences. In one case he walked through several rooms and sampled a soft drink from the refrigerator; in the other, he took a cigarette lighter; in both cases he was looking for money, but changed his mind and left.

Redden testified that he knew of defendant’s impairment of mind and he did not give him any Miranda warnings because he wanted to obtain a confession from him. He stated that he told defendant he was not under arrest in order to avoid Miranda.

Defendant testified that he had had no prior exposure to the police; that he had always respected the police; that he would have remained silent if he had been advised of his right to do so; and that he did believe he was free to leave but did not do so because he was afraid he would be arrested.

As indicated above, the trial court denied defendant’s motion to suppress his oral and taped statements. The trial consisted only of stipulations to defendant’s statement and stipulations with the owners that their homes had been entered and that they had not given defendant permission to do so.

The sentencing hearing was held some 60 days later. The trial judge indicated a preference for probation if it were a possible disposition. However, it is barred by section 5 — 5—3(c)(2)(G) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5— 3(c)(2)(G)).

The events must be viewed in the context of two time periods: (1) those leading up to the taped confessions, and (2) the taped confessions themselves. While the two are interrelated, it is our opinion that the former rests principally upon the voluntary nature of the oral statement, and the latter upon the lack of Miranda warnings. The trial court was in error as to both; the oral statement was involuntary and the taped statements should have been suppressed because they were not preceded by Miranda warnings. Consequently, since the trial consisted almost entirely of the taped statements, defendant’s convictions must be reversed and the cause remanded for a new trial without any of the confessions as an element of evidence.

The fundamental principle governing the admission of confessions is well known: the confession must be voluntary; otherwise, it is totally inadmissible. The test to determine whether a confession is voluntary is whether the defendant’s will was overborne at the time of the confession. (People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 508.) This determination must be based on the totality of the circumstances and consideration must be given to both the characteristics of the defendant and the details of the interrogation. (People v. Simmons (1975), 60 Ill. 2d 173, 326 N.E.2d 383.) The State bears a heavy burden of showing that the statement was knowingly, intelligently and voluntary made. (People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 508.) If, as here, the trial court finds that the confession was voluntary, a reviewing court’s inquiry is limited to whether that finding is contrary to the manifest weight of the evidence.

It is well established that a defendant’s age, education, mental capacity, emotional characteristics and experience in criminal matters are factors which must be considered by the trial court in determining the voluntary nature of a confession. People v. Hester (1968), 39 Ill. 2d 489, 237 N.E.2d 466.

Here we have a 17-year-old adolescent, with subnormal intelligence, with little education, dependent upon his parents, lacking experience in criminal affairs but with respect for the police and what they told him.

The general rule is that subnormal mentality does not ipso facto make a confession involuntary as long as the defendant has the capacity to understand the meaning and effect of the confession. (People v. Hester (1968), 39 Ill. 2d 489, 237 N.E.2d 466.) However, mental sub-normality is a factor to be considered when determining the voluntariness of a confession, and, “ '*** where accompanied by other factors indicative of an absence of voluntariness, will require that the confession be excluded.’ ” People v. Hester (1968), 39 Ill. 2d 489, 500, 237 N.E.2d 466, 474.

In the present case, defendant’s subnormal mentality was accompanied by his young age, lack of education, and complete lack of experience in criminal matters, all suggestive of an increased susceptibility to coercion and intimidation. When confronted with such a defendant, the greatest care must be taken to assure that a confession was voluntary and that it was not the “product of ignorance of rights or of adolescent fantasy, fright or despair.” In re Gault (1967), 387 U.S. 1, 55, 18 L. Ed. 2d 527, 561, 87 S. Ct. 1428, 1458; see also People v. Simmons (1975), 60 Ill. 2d 173, 326 N.E.2d 383.

The details of the initial interrogation militate strongly against the State. No impropriety existed in the request of the defendant to present himself at headquarters. (People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870.) However, after his arrival he was isolated from his mother, who accompanied him, and it is undisputed that he was not accompanied by an attorney. Police conduct thereafter borders on deception. He was interrogated about an unrelated offense concerning an acquaintance; it was intimated that his fingerprints might have been found at the scene of the break-ins; the officer testified that it was his avowed intention to obtain a confession. It was not until after the officer had suggested that latent prints had been found that defendant made his oral statement. There is no credible evidence that defendant knew the nature of latent prints, even if they had existed.

In short, the totality of the circumstances here indicate to us that this vulnerable defendant could not have made a voluntary statement in the light of the intimidating, coercive and deceptive atmosphere of the interrogation.

We turn next to the taped statements which were taken after the oral one. Again it is undisputed that no Miranda warnings were administered; indeed, the direct testimony of the officer is that Miranda was circumvented deliberately; the inquiry then becomes whether defendant was “in custody” within the meaning of Miranda. We believe that he was.

The determination of whether an interrogation is custodial should focus on the objective circumstances surrounding the questioning and what a reasonable man innocent of any crime would perceive. (People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870.) To aid in this determination, there are several factors that should be considered, including: (1) the place of the interrogation; (2) statements or nonverbal conduct indicating an accused is not free to leave; (3) the extent of the knowledge of the law enforcement officers and the focus of their investigation; and (4) the intentions of the officers. People v. Newsome (1983), 117 Ill. App. 3d 1005, 454 N.E.2d 353.

In the present case the interrogation took place in a basement interrogation room at the Coles County sheriffs department. While Detective Redden stated that defendant was free to leave, nonverbal conduct indicated the contrary was true. Specifically, the door to the basement room was closed, an officer was stationed outside of the door, and defendant was separated from his mother who had transported him to the sheriff’s department. While the extent of the officer’s knowledge was unclear at the time of the initial interrogation, it is obvious that after defendant’s initial oral confessions and before he was requested to give the taped confessions, the officers knew that he had probably committed the crimes. They could have placed him under arrest at that time and a reasonable man would have known this. Finally, the officers stated that they intended to release the defendant at all times during the interrogation and confessions. However, this intent must be judged in light of Redden’s statement that defendant was told he was not in custody in order that Redden would not have to give him the Miranda warnings. The circumvention of the requirements of Miranda appears to have been the officer’s primary intent here.

We believe that this case presents a clear picture of an officer attempting to turn a custodial interrogation into a noncustodial one by repeating a litany that the defendant was free to leave. It is apparent that even one of defendant’s mentality would have felt the opposite; he knew that he had made an oral confession; it belies all human experience to say that in that posture the authorities would lose interest in the case. Miranda warnings should have been given. The purpose and flagrancy of official misconduct are apparent. People v. Smith (1980), 91 Ill. App. 3d 438, 414 N.E.2d 1281, rev’d on other grounds (1982), 93 Ill. 2d 179, 442 N.E.2d 1325.

The taped confessions should have been suppressed. The trial court’s admission of them was against the manifest weight of the evidence.

Defendant has also presented two subsidiary arguments which may be dealt with summarily. First, he asks that his convictions for residential burglary be reversed and that the State’s Attorney be directed to charge him with the newly created offense of criminal trespass to residence. (1983 Ill. Laws 7342.) We have no such power over the prosecutorial discretion of a State’s Attorney. People v. Poll (1979), 74 Ill. App. 3d 534, 393 N.E.2d 732; People v. Gibson (1976), 41 Ill. App. 3d 209, 354 N.E.2d 71.

Second, defendant argues that the residential burglary statute is unconstitutional as applied to him and asks this court to reduce his sentence. Suffice it to say, the contention was not raised below and, in any event, it is the prerogative of the legislature to fix penalties and to define sentences. The argument is without merit.

For all the foregoing reasons, defendant’s convictions are reversed and the cause is remanded to the circuit court of Coles County for a new trial in accordance with the views expressed in this opinion.

Reversed and remanded for new trial.

MILLS, P.J., and TRAPP, J., concur.


source: Caselaw Access Project

author: JUSTICE GREEN PRESIDING JUSTICE MILLS,

license: Public Domain

text:
      In re MARRIAGE OF LAWRENCE BRAND, Petitioner-Counterrespondent-Appellant, and SARAH J. BRAND, Respondent-Counterpetitioner-Appellee.
    Fourth District
    No. 4 — 83—0443
    Opinion filed May 10, 1984.

      MILLS, P.J., concurring in part and dissenting in part.
    Bernard A. Puglisi, of Champaign, for appellant.
    Kristen H. Fischer, of Champaign, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On February 25, 1980, a judgment of dissolution of the marriage of petitioner, Lawrence Brand, and respondent, Sarah J. Brand, was entered in the circuit court of Champaign County. On January 25, 1982, following a hearing in that court, the court entered an order awarding custody of the parties’ minor son to respondent and ordering petitioner to pay a portion of respondent’s attorney fees, all guardian ad litem fees and child support. No custody award was made in regard to the couple’s minor daughter who was married prior to the final custody hearing. The couple was living with respondent at the time of hearing.

On appeal, petitioner maintains the trial court (1) abused its discretion in awarding custody of the son to respondent, (2) erred in ordering petitioner to pay 44% of respondent’s attorney fees and all guardian ad litem fees, (3) erred in considering petitioner’s worker’s compensation benefits as a financial resource available for child support payments, (4) abused its discretion in awarding child support, and (5) erred in denying petitioner’s second supplemental post-trial motion regarding modification of child support payments. We affirm.

Petitioner testified at the January 1982 hearing that he was 43 years old, had been employed by the State of Illinois and was injured on the job approximately six months prior to that hearing. At that time, he estimated that it might be 18 months before he could return to full-time employment. He was receiving $502.92 biweekly worker’s compensation benefits and $152.93 per month as a State disability benefit.

Respondent testified she was 41 years old at the time of the January 1982 hearing, had been a registered nurse, and had been unemployed since 1977 due to a back injury. She stated she was unable to work in any capacity and was receiving public aid, food stamps, and rent subsidy totalling approximately $565 per month.

The court ordered permanent custody of the 14-year-old son to be with his mother despite his expressed preference to live with his father. The court considered each factor listed in section 602(a) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) prior to making its decision. Section 602(a) states the court should consider all relevant factors in determining the best interests of the child including:

“(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school and community;
(5) the mental and physical health of all individuals involved; and
(6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person but witnessed by the child.” (Ill. Rev. Stat. 1981, ch. 40, par. 602(a).)

Section 602(b) states “[t]he court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child.” Ill. Rev. Stat. 1981, ch. 40, par. 602(b).

Petitioner maintains the custody order was not in the child’s best interests, and the trial court based its order on improper considerations. Petitioner argues the court should have placed greater weight on the child’s preference and should have more carefully evaluated the factors listed in section 602(a) of the IMDMA. He further contends the court was biased against him, and this was reflected in the custody award.

We conclude, however, that the trial court did not abuse its discretion in determining custody. Although the son expressed a strong desire to live with his father, that was only one factor to be considered. Disputed testimony was presented that the father had told the boy that the boy need not obey the law, and the father’s attitude in court was such that the judge could have concluded the father had a disdain for the law. The trial court was in the best position to determine the weight to be given to these matters. This conduct of the father was such as could affect his relationship with the boy. A social worker testified that there was significance to keeping the boy with his sister even though she had become married. Although respondent was shown to be a former alcoholic, evidence was presented that she had not had any intoxicants to drink for two years. The trial court could have believed this evidence. The respondent appeared to otherwise be a reasonably capable parent. The trial court did not consider improper factors nor abuse its discretion in making the custody award.

In ordering petitioner to pay a portion of respondent’s attorney fees, the trial court considered that (1) respondent had little ability to pay the fees; (2) petitioner, with his larger income, had better ability to pay them; and (3) petitioner had caused delay by failing or refusing to make agreed appointments with a social worker and not informing the court of his need for a continuance because of a back injury until just before the time of hearing. These were proper considerations. (Albert v. Albert (1972), 10 Ill. App. 3d 539, 294 N.E.2d 695.) The court was likewise within its discretion in requiring petitioner to pay guardian ad litem fees.

The parties stipulated that $4,500 constituted a fair and reasonable fee for services performed by respondent’s counsel during this protracted litigation. No evidence was presented as to the exact hours spent by counsel or as to whether the fees were reasonable. Petitioner maintains that such evidence is always required when the amount of such fees is fixed, citing In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 421 N.E.2d 1308. However, there was no stipulation in Brophy. A stipulation which is a true agreement of the parties and properly signed by the attorneys for both parties, in absence of a showing of fraud, is binding on the parties. (Kazubowski v. Kazubowski (1968), 93 Ill. App. 2d 126, 134, 235 N.E.2d 664, 668, cert. denied (1969), 393 U.S. 1117, 22 L. Ed. 2d 122, 89 S. Ct. 993; Albert v. Albert (1972), 10 Ill. App. 3d 539, 542, 294 N.E.2d 695, 698.) Here, there was no showing of fraud, and the parties are bound by their stipulated agreement.

The parties had also stipulated that petitioner would pay the guardian ad litem fees. The court fixed this in the sum of $1,722. We do not find that to be unreasonable for work that included four days of hearings.

Petitioner’s contention that the court improperly considered his worker’s compensation benefits in awarding support payments is based upon section 21 of the Workers’ Compensation Act, which states:

“No payment, claim, award or decision under this Act shall be assignable or subject to any lien, attachment or garnishment, or be held liable in any way for any lien, debt, penalty or damages ***.” (Ill. Rev. Stat. 1983, ch. 48, par. 138.21.)

Petitioner argues that to require him to pay support when some of that support would have to be paid from the proceeds of his worker’s compensation benefits makes those benefits liable for a “lien” or “debt” within the meaning of section 21. We disagree.

The court order clearly did not create any charge in the nature of a lien as to his compensation benefits. As to whether the benefits were held liable for a “debt” is a closer question. A substantial argument might be made that the benefits were being made liable for a debt, if the order was to pay past due support. However, we are satisfied the legislature intended that a recipient use compensation benefits for the current expenses of the worker’s family, and this is all the court was ordering him to do. The IMDMA was amended effective January 1, 1984, by the addition of section 706.1, which provided a court entering a support order may include a requirement directing any entity, required to pay worker’s compensation benefits to one subject to a support order, to withhold from those benefits a sufficient sum to cover such part of the support order as the court may direct. (Ill. Rev. Stat. 1983, ch. 40, par. 706.1.) The fact that the legislature authorized withholding but made no mention of the situation when one receiving benefits is merely required to make support payments which would inevitably come from the benefits, indicates that the legislature deemed the entry of such an order to be clearly permissible.

The IMDMA is to be “liberally construed” (Ill. Rev. Stat. 1981, ch. 40, par. 102), and we take this to mean that any resources available to the parties are to be used to promote the underlying purposes of the Act, which include making “reasonable provision for spouses and minor children during and after litigation.” Ill. Rev. Stat. 1981, ch. 40, par. 102(5).

Finally, we do not find any abuse of discretion in the award of child support. The evidence supports the trial court’s conclusion that, considering all relevant factors, petitioner had the present financial ability to assist in the support of his son. The court expressly stated that any final worker’s compensation award was too speculative to be considered in determining the petitioner’s ability to pay. Petitioner’s assertion that the court improperly considered speculative future income of petitioner in making the award is not substantiated.

Petitioner’s second supplemental post-trial motion included a request to modify the previously pronounced order in regard to child support payments. Petitioner claims error in the trial court’s refusal to modify that order but has presented no report of proceedings with reference to the hearing on that issue. Under such circumstances, we assume that the record supported the decision of the trial court. In re Marriage of Macaluso (1982), 110 Ill. App. 3d 838, 443 N.E.2d 1.

We note with concern the time that elapsed in this case between the judgment of dissolution of the marriage entered on February 25, 1980, and the entry of the final order on March 9, 1983, disposing of the ancillary matters of custody, property division, support and attorney fees. These matters were heard between January 21 and January 26, 1982. The court pronounced its rulings on the custody issue in open court on January 25, 1982, but took the other issues under advisement. No ruling was ever pronounced on these matters until the filing of the written order on March 9, 1983, which covered all the ancillary matters including the custody issue upon which the court made the earlier in-court pronouncement. The written order eventually entered was very comprehensive and contained 25 pages. The parties have informed this court that the trial court prepared the order.

We recognize the complexity of the problems presented and the desirability of the trial court to make a comprehensive written order in a case of this nature. We also understand that valid reasons, not appearing in the record, may explain the delay. Furthermore, we are aware of the busy trial schedules of many judges and the time involved in preparing such an order. However, we conclude that, when a court does not have time to prepare such an order, justice is usually better served by having prevailing counsel prepare a written order or the court pronouncing its rulings in open court without designation that a written order is to follow. This would prevent imposing on the parties a delay of over one year between hearing the evidence and the entry of an order disposing of the matter.

For the foregoing reasons, the orders appealed are affirmed.

Affirmed.

TRAPP, J., concurs.

PRESIDING JUSTICE MILLS,

concurring in part and dissenting in part:

Upon taking the woolsack in 1617, Lord Chancellor Bacon said: “The subject’s pulse beats swift, though the Chancery pace be slow. Fresh justice is the sweetest.”

This case is stale!

The minor son here was 14 years old at the time of the hearing, 15 when the order was finally entered, and is 16 years old now!

Besides, what “significance” a social worker sees in keeping this boy with his married sister escapes me. The lad’s preference for his father seems to have been afforded short shrift even though the judge considered the home and family environment' of both parties to be beneficial and a “close” question. Furthermore, a fair reading of the record reflects a clash of personalities and/or values between the trial judge and the petitioning father.

The basis for the custody order here is murky and overcast. It is to this issue only that I dissent. It should be reversed and remanded for another examination of the merits — and quickly, or the boy will be of age!


author: JUSTICE WHITE

text:
    CHICAGO HEIGHTS CURRENCY EXCHANGE, INC., Plaintiff-Appellee, v. PAR STEEL PRODUCTS AND SERVICE COMPANY, INC., Defendant-Appellant.
    First District (3rd Division)
    No. 82 — 2817
    Opinion filed April 25, 1984.
    Laser, Schostok, Kolman & Frank, of Chicago (Melbourne A. Noel, Jr., of counsel), for appellant.
    Herbert N. Sirott, of Chicago, for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Defendant, Jack H. Brakman, was a general managér of defendant, Par Steel Products and Service Company, Inc. In that capacity he was authorized to sign checks on the company’s checking account. After his employment by Par Steel was terminated and after his authority to sign company checks was cancelled he signed and delivered to plaintiff, Chicago Heights Currency Exchange, Inc., two checks drawn on the company account, one in the amount of $3,000 and the other for $4,000. When the two checks were presented to the drawee bank for payment, they were returned marked unpaid. Plaintiff currency exchange brought this action against Brakman and Par Steel, alleging in addition to the facts above that the plaintiff had previously cashed several Par Steel checks for Brakman which were honored, that Par Steel failed to notify plaintiff that Brakman’s authority to sign checks had been withdrawn, and that Par Steel allowed Brakman to come into possession of checks which he could no longer sign. These acts are said to be in violation of Par Steel’s duty to plaintiff and to constitute negligence. Judgment in the amount of $7,000 was prayed for. A default judgment in that amount was entered against Brakman. After a bench trial, a similar judgment was entered against Par Steel.

Plaintiff in its amended complaint admits that Brakman had no authority to sign the two Par Steel checks. It is plaintiff’s position that Par Steel, because of its negligence, is precluded from asserting that defense. Section 3 — 404(1) of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 3 — 404(1)) provides: “Any unauthorized signature is wholly inoperative as that of the person whose name is signed unless he ratifies it or is precluded from denying it ***.” Section 3 — 406 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 3 — 406) provides: “Any person who by his negligence substantially contributes to *** the making of an unauthorized signature is precluded from asserting the *** lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee’s or payor’s business.”

The parties in their briefs raised issues concerning whether plaintiff failed to establish that it was a holder in due course or other payor entitled to invoke the protection of section 3 — 406 of the Uniform Commercial Code and whether plaintiff proved that it paid the checks in accordance with the reasonable commercial standards of its business. We need not address these issues because we are of the opinion that even if these issues are resolved in favor of plaintiff, we nevertheless must hold for defendant. In our opinion the evidence in the record does not show negligence by defendant which substantially contributed to the making of the unauthorized signatures.

The Uniform Commercial Code does not define the negligence that will support the section 3 — 406 defense and instructs that this issue is left strictly to the fact finder on a case-by-case basis. (J. Gordon Neely Enterprises, Inc. v. American National Bank (Ala. 1981), 403 So. 2d 887; see Ill. Ann. Stat., ch. 26, par. 3 — 406, Uniform Commercial Code Comment 3, at 247 (Smith-Hurd 1963).) This leaves each State free to define negligence separately. The parties have not cited nor have we found an Illinois case which does this. However, both precode Illinois cases and cases from other jurisdictions are persuasive that Par Steel was not guilty of negligence which substantially contributed to the making of the unauthorized signatures. Was Brakman’s possession of the company check blanks after he had been fired evidence of Par Steel’s negligence which substantially contributed to the unauthorized signatures? Illinois courts have held that a drawer of checks owes no duty to his banker to employ none but honest clerks who will not steal his checks and commit forgeries by means of them. (United States Cold Storage Co. v. Central Manufacturing District Bank (1931), 343 Ill. 503, 514, 175 N.E. 825; Open Shop Employing Printers Association v. Chicago Trust Co. (1931), 263 Ill. App. 190, 197.) If the courts find no such duty of the drawer to his drawee bank with which the drawer has a contractual relationship, certainly the drawer has no such duty to a currency exchange with which it has no contractual relation. Further, for the drawer’s negligence to defeat its defense under section 3 — 406, the plaintiff must show that the drawer’s negligence substantially contributed to the making of the unauthorized signature. In a leading case construing section 3 — 406, the court said regarding the parallel defense of forgery:

“[W]e are convinced that the meaning of sec. 3 — 406 is best reflected by precluding a drawer from recovery under these or similar circumstances only where his negligent conduct contributes to the forgery, not merely to the unwarranted issuance of the checks ***.” (Bagby v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (8th Cir. 1974), 491 F.2d 192,197.)

Cases with similar holdings are cited in Maddox v. First Westroads Bank (1977), 199 Neb. 81, 256 N.W.2d 647.

In Fred Meyer, Inc. v. Temco Metal Products Co. (1973), 267 Or. 230, 516 P.2d 80, checks of the drawer were stolen and the drawer’s signature forged on them. The Supreme Court of Oregon, in holding that the conduct of the company whose blank checks had been stolen and forged did not constitute negligence, quoted the official comment on the Oregon statute:

“ ‘ORS 73.4060 applies the same rule to negligence which contributes to a forgery or other unauthorized signature, as defined in ORS 71.2010. The most obvious case is that of the drawer who makes use of a signature stamp or other automatic signing device and is negligent in looking after it. ORS 73.4060 extends,- however, to cases where the party had notice that forgeries of his signature have occurred and is negligent in failing to prevent further forgeries by the same person. It extends to negligence which contributes to a forgery of the signature of another, as in the case where a check is negligently mailed to the wrong person having the same name as the payee. As in the case of alteration, no attempt is made to specify what is negligence, and the question is one for the court or the jury on the facts of the particular case.’ ” (267 Or. 230, 234, 516 P.2d 80, 82.)

The court noted that Temco was not a case involving a check signing device or one where the party had notice of previous forgeries. Further, it was “not a case in which conduct may be negligent for failure to foresee that such conduct may involve an unreasonable risk of harm to another person through the negligent conduct of a third person. Instead this [was] a case in which it [was] contended that defendant was negligent for failure to foresee that his conduct may involve harm to another through the criminal conduct of a third person. [Citation.] Under normal circumstances a person may reasonably assume that no one will violate the criminal law. [Citation.]” 267 Or. 230, 236, 516 P.2d 80, 83.

Similarly, applying this analysis to the case at bar, Par Steel had no duty to anticipate the criminal activity of Brakman. We hold that the evidence that Brakman possessed the Par Steel checks, that he signed the checks after his authority to do so had been terminated and that Par Steel did not notify Chicago Heights Currency Exchange about the termination did not establish negligence substantially contributing to the unauthorized signing within the meaning of section 3-406 of the UCC.

For the foregoing reasons the judgment entered in the court below for plaintiff Chicago Heights Currency Exchange, Inc., is reversed.

Reversed.

McNAMARA and McGILLICUDDY, JJ., concur.


author: JUSTICE GREEN

text:
    DONALD M. MAZZOTTI, d/b/a Notary Public Agency, Plaintiff-Appellant, v. JAMES EDGAR, Secretary of State, Defendant-Appellee.
    Fourth District
    No. 4 — 83—0563
    Opinion filed May 7, 1984.
    John H. Wilhelm, of Springfield, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of counsel), for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

The principal issue presented for review is whether the following portion of section 16 of the Illinois Notary Public Act constitutes an impermissible restraint on commercial speech in violation of the first amendment (U.S. Const., amend. I):

“[No person shall] solicit any applicant renewing a Notary’s Commission and offer to provide a Surety Bond more than 30 days in advance of the expiration of such Commission.” (Ill. Rev. Stat. 1981, ch. 99, par. 16.)

We conclude that section 16 does not violate the first amendment.

On April 6, 1983, plaintiff, Donald M. Mazzotti, d/b/a Notary Public Agency, filed a two-count complaint in the circuit court of Sangamon County against defendant, James Edgar, Secretary of State, State of Illinois. The complaint alleged that (1) plaintiff was doing business as Notary Public Agency in Sangamon County; (2) defendant had a statutory duty (Ill. Rev. Stat. 1981, ch. 124, par. 5) to give plaintiff a list containing the names of notaries public commissioned by defendant pursuant to the Illinois Notary Public Act (INPA) (Ill. Rev. Stat. 1981, ch. 99, par. 1 et seq.); (3) since March 28, 1983, defendant had refused to perform this statutory duty; (4) plaintiff had complied with all of the conditions precedent to the performance of defendant’s statutory duty; and (5) defendant’s refusal to perform this statutory duty had injured plaintiff because he had been unable to “solicit certain surety bond business relating to notaries public that he [had] solicited for a long time past.”

Count I requested that the trial court enter a judgment of mandamus in favor of plaintiff, commanding defendant to give plaintiff certain lists of persons commissioned by defendant as notaries public (notaries lists). Count II requested that the trial court enter a preliminary injunction directing defendant to furnish plaintiff with copies of the notaries lists.

At the conclusion of a hearing held on April 14, 1983, the trial court denied plaintiff’s motion for a preliminary injunction.

In a counterclaim filed on April 26, 1983, defendant alleged that plaintiff’s practice of soliciting notaries to provide surety bonds more than 30 days prior to the expiration of a notary’s commission constituted a violation of section 16 of the INPA. The counterclaim requested that the trial court enter an order permanently enjoining plaintiff from issuing such solicitations more than 30 days in advance of the expiration of a notary’s commission.

In his reply to defendant’s counterclaim, plaintiff admitted that he solicited notaries more than 30 days prior to the expiration of their commissions, but (1) denied that this conduct violated section 16, and (2) stated that section 16 was an impermissible restraint on commercial speech.

A hearing on plaintiff’s complaint for mandamus and defendant’s counterclaim for a permanent injunction was held on May 6, 1983. At the outset of this hearing, the parties stipulated that defendant had stated that he would not give plaintiff unlimited access to the notaries lists and that such lists would only be made available to plaintiff 30 days prior to the expiration of a notary’s commission.

In an order entered on July 25, 1983, the trial court determined that (1) defendant had no statutory duty to refuse to give notaries lists to plaintiff based upon defendant’s perception that plaintiff would use the information illegally (Ill. Rev. Stat. 1981, ch. 124, par. 5); (2) plaintiff’s practice of mailing solicitations more than 30 days prior to the expiration of notaries commissions constituted a violation of section 16 of the INPA; (3) section 16 is related to a substantial governmental interest, is not overbroad, and is not an unnecessary burden on commercial free speech; and (4) section 18 of the INPA provides that after a showing of a violation of section 16 the trial court has the power to issue a permanent injunction against the violation. In the order, the trial court (1) issued a writ of mandamus against defendant commanding him to give notaries lists to plaintiff, and (2) permanently enjoined plaintiff and his agents from issuing solicitations to renew commissions or to provide surety bonds more than 30 days in advance of the expiration of the commission of the notary so solicited.

Only that portion of the trial court’s order which permanently enjoined plaintiff from issuing solicitations more than 30 days prior to the expiration of notaries’ commissions has been appealed. Plaintiff asserts that (1) section 16 unconstitutionally restricts commercial speech, and (2) his solicitations qualify for the so-called “letterhead exemption” contained in section 16.

In a series of cases decided in the mid-1970’s, the United States Supreme Court determined that commercial speech was entitled to a certain degree of first amendment protection. See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), 425 U.S. 748, 48 L. Ed. 2d 346, 96 S. Ct. 1817; Bigelow v. Virginia (1975), 421 U.S. 809, 44 L. Ed. 2d 600, 95 S. Ct. 2222; Pittsburgh Press Co. v. Pittsburgh Com. (1973), 413 U.S. 376, 37 L. Ed. 2d 669, 93 S. Ct. 2553.

In Central Hudson Gas & Electric Corp. v. Public Service Com. (1980), 447 U.S. 557, 65 L. Ed. 2d 341, 100 S. Ct. 2343, an electrical utility brought suit to challenge the constitutionality of a New York Public Service Commission regulation which completely banned promotional advertising by the utility. The commission alleged that the purpose of this ban was to further the national policy of conserving energy. The Supreme Court, in determining that this regulation was unconstitutional, set forth the following method of analysis for commercial speech cases:

“The First Amendment’s concern for commercial speech is based on the informational function of advertising [citation]. Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it [citations], or commercial speech related to illegal activity [citation].
If the communication is neither misleading nor related to unlawful activity, the government’s power is more circumscribed. The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State’s goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government’s purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.” 447 U.S. 557, 563-64, 65 L. Ed. 2d 341, 349-50, 100 S. Ct. 2343, 2350.

In considering Central Hudson Gas with reference to the instant case, we must address the question of whether plaintiff’s solicitations are protected by the first amendment. In order to be protected, the solicitations must concern lawful activity and not be misleading. Without question, a solicitation to renew a notary commission concerns a lawful activity.

As to whether the solicitations are misleading, we note that plaintiff, a licensed insurance broker, testified at trial concerning his business practices as follows. In order to solicit surety bonds, errors and omissions insurance policies, and other insurance from notaries public, plaintiff would obtain lists containing the names of notaries public whose commissions were about to expire from defendant’s Index Division. Plaintiff would then send a solicitation form to these notaries.

In this form, plaintiff offered to renew the notary’s commission for the notary if he/she would (1) complete the bond form contained on the reverse side of the form, (2) write a $5 check to the Secretary of State and a $10 check to Notary Public Agency, and (3) return the completed form and both checks to Notary Public Agency. This form also provides in part:

“Upon receipt of these three items we will HAND CARRY to Secretary of State’s office to avoid any mistakes or confusion that would delay the renewal of your commission. THIS IS ALL THAT WILL BE REQUIRED TO RENEW YOUR COMMISSION.”

Plaintiff also testified that after receiving the checks and the completed form he (1) checks to see that the surety officer’s signature is affixed with a seal and that the oath is filled out exactly as the name appears on the notary seal, (2) acknowledges receipt of the forms with a postcard, asks to be kept current on changes of address, and informs the State of such changes, (3) hand carries the forms to defendant’s office, and (4) checks the daily list of commissions to verify that the commission is not being “skipped over” which would result in the expiration of a notary’s commission. Plaintiff admitted on cross-examination that (1) a notary who uses personal sureties instead of a surety bond pays only a $5 fee to defendant, and (2) he had received approximately 11 complaints from notaries concerning his services.

Defendant contends that plaintiff’s solicitations are misleading. In support of this contention defendant notes that at trial John Hofferkamp, director of the Secretary of State’s Index Division, identified (1) a group of 13 letters written by defendant to notary applicants who, having already responded to plaintiff’s solicitation, had nevertheless completed and returned the notary application which was subsequently sent by defendant, and (2) a group of 11 written complaints submitted by notaries who had been confused by plaintiff’s solicitations. In addition to the written complaints, Hofferkamp testified that he had received “hundreds” of telephone complaints concerning plaintiff’s solicitations.

We recognize that a close question exists as to whether plaintiff’s solicitations are misleading. On one hand, the record indicates that several written complaints and “hundreds” of telephone complaints have been submitted concerning plaintiff’s solicitations.

On the other hand, we note that plaintiff’s solicitation contains no untruths. In addition, section 16 requires every solicitation to set forth “in bold face type not less then inch in height” the following:

“THE LAW PRESCRIBES EITHER PERSONAL SURETIES OR A SURETY BOND. WHERE PERSONAL SURETIES ARE APPROVED BY THE SECRETARY OF STATE, NO SURETY BOND IS REQUIRED.
WE ARE NOT ASSOCIATED WITH ANY STATE OR LOCAL GOVERNMENTAL AGENCY.” (Ill. Rev. Stat. 1981, ch. 99, par. 16.)

Plaintiff’s solicitation form contains this mandatory statutory language.

However, we need not decide whether plaintiffs solicitations are misleading because we conclude that the section 16 proscription (1) directly advances a substantial governmental interest, and (2) is not more extensive than is necessary to serve that interest. Central Hudson Gas & Electric Corp. v. Public Service Com. (1980), 447 U.S. 557, 65 L. Ed. 2d 341, 100 S. Ct. 2343.

As to the asserted governmental interest, we note that John Hofferkamp testified concerning the purpose of the section 16 proscription as follows. He noted that (1) defendant has traditionally informed notaries that their commissions were about to expire by mailing renewal forms to them 60 days prior to the expiration date along with a letter that informs them that they may use personal sureties or that they may purchase a bond, and (2) prior to 1969 the INPA did not prohibit persons from soliciting notaries public bonds more than 30 days prior to the expiration of the commission. However, in the fall of 1968 a firm began to solicit notaries far in advance of their expiration date. This practice caused “much confusion” because the notaries received the solicitations before they had received the renewal forms from defendant. Hofferkamp testified that the purpose of section 16 was to avoid confusion by allowing notaries 30 days between the time defendant informed them of the expiration of their commission (60 days prior to the actual expiration date) and the time that persons could begin soliciting notary public bonds from them (30 days prior to the actual expiration date).

Plaintiff contends that the governmental interest of avoiding confusion by allowing notaries to receive defendant’s renewal forms before receiving solicitations from notary public bond firms is not “substantial” for purposes of the Central Hudson Gas analysis because the solicitations create only a “small measure of confusion.” We disagree. The record in this case contains evidence of several written complaints and “hundreds” of telephone complaints submitted by notaries who had been confused by plaintiff’s solicitations.

Accordingly, we conclude that (1) there is a substantial governmental interest in preventing the dissemination of confusing solicitations to notaries, and (2) this governmental interest is directly advanced by prohibiting solicitations until after defendant has informed notaries that their commissions are about to expire.

Plaintiff also argues that the governmental interest in this case could be served as well by a more limited restriction on commercial speech. For example, plaintiff suggests that defendant could (1) place some limited restriction on the information conveyed, rather than the time in which the information is conveyed, or (2) require a solicitor to mark his envelopes with a notation that only insurance materials are included in the solicitation. We disagree.

As to plaintiff’s first suggestion, we note that (1) such a restriction would be content-based rather than a regulation of the time, place, or manner of the speech, and (2) content-based restrictions do not withstand constitutional inspection as readily as time, place, or manner restrictions. Linmark Associates, Inc. v. Township of Willingboro (1977), 431 U.S. 85, 52 L. Ed. 2d 155, 97 S. Ct. 1614; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), 425 U.S. 748, 48 L. Ed. 2d 346, 96 S. Ct. 1817.

As to the second suggestion, we note that plaintiff’s solicitations contained the mandatory statutory language which warned that plaintiff’s firm was not associated with any governmental agency and stated that defendant does not require a surety bond. Despite these disclosures, the evidence indicates that many notaries were confused. Moreover, one notary public testified that although she knew the difference between a personal surety and a commercial surety bond, she completed the solicitation form sent to her by plaintiff because she was confused by the “official-looking” nature of the form.

We conclude that the section 16 proscription is not more extensive than is necessary to serve the governmental interest of avoiding confusion by allowing notaries to receive defendant’s renewal form before receiving a solicitation from a notary public bond firm.

Accordingly, even if plaintiff’s solicitations are not misleading, the trial court could have properly enjoined plaintiff from sending solicitations more than 30 days in advance of the expiration of the notaries’ commissions because this proscription does not constitute an impermissible restraint on commercial speech.

Plaintiff points out that section 16 provides in part:

“Nothing contained in this Section shall apply to a letterhead proper, or general listings or advertising of a general nature, or general publications of any duly licensed insurance broker or agent or company which merely lists surety bonds along with other bonds or policies.” Ill. Rev. Stat. 1981, ch. 99, par. 16.

Plaintiff maintains that his solicitations qualify for this so-called “letterhead exemption.” Plaintiff notes that (1) the solicitations were printed on his business letterhead, and (2) the solicitation stated:

“NOTE: In addition to the above service and as duly licensed Insurance Broker we can also offer you our popular four (4) years Errors and Omissions policy that provides $5,000 coverage for only $20 for the four (4) years. We offer other insuranee coverage as well.”

We believe that the “letterhead exemption” was intended to permit other types of commercial soheitation and correspondence with notaries at any time, even if a company’s letterhead made an incidental reference to the availability of notary bonds. For example, a firm could mail letterhead advertising to notaries offering to sell them life insurance without violating section 16. Here, plaintiff admitted on cross-examination that (1) the form language offering the other types of insurance appeared in print approximately one-fourth the size of the print preceding it, and (2) approximately 90% of his business consists of selling surety bonds to notaries.

We conclude that the section 16 “letterhead exemption” does not apply where, as here, the thrust of an advertisement is the offer either to renew a notary commission or to provide a surety bond for the notary commission.

For the reasons stated herein, we affirm.

Affirmed.

TRAPP and MILLER, JJ., concur.


author: JUSTICE WEBBER

text:
    BOARD OF EDUCATION, SPRINGFIELD PUBLIC SCHOOLS, DISTRICT NO. 186, SANGAMON COUNTY, Plaintiff-Appellee and Cross-Appellant, v. LINDA McCOY, Defendant-Appellant and Cross-Appellee (The Illinois State Board of Education, Defendant).
    Fourth District
    No. 4 — 83—0517
    Opinion filed April 5, 1984.
    Modified on denial of rehearing June 8, 1984.

      Drach & Deffenbaugh, P.C., of Springfield, for appellant.
    Billington & Billington, of Springfield, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

The defendant Linda McCoy (McCoy) was a tenured teacher in the employ of the plaintiff board of education, Springfield Public Schools, District No. 186, Sangamon County, Illinois (Board), and was dismissed by the Board on March 26, 1979. Administrative hearings pursuant to the appropriate provisions of the School Code were had (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 12), and the hearing officer found that McCoy should be reinstated. The Board appealed to the circuit court of Sangamon County which reversed the hearing officer. McCoy then appealed to this court. In a divided order under Supreme Court Rule 23 (87 Ill. 2d R. 23) (98 Ill. App. 3d 1206), this court reversed the circuit court and upheld the decision of the hearing officer.

McCoy was reinstated on March 2, 1982. Thereafter controversy arose over the amount of damages to be awarded to her pursuant to section 24 — 12 of the School Code which provides in pertinent part:

“If a decision of the hearing officer is adjudicated upon review or appeal in favor of the teacher, then the trial court shall order reinstatement and shall determine the amount for which the board is liable including but not limited to loss of income and costs incurred therein.” Ill. Rev. Stat. 1981, ch. 122, par. 24-12.

Hearings were held in the circuit court of Sangamon County which entered its final order on June 23, 1983. McCoy was allowed all the income she would have received from the Board for the applicable school years, 1978-79 through 1981-82. This was offset by the amounts she received prior to her dismissal and after her reinstatement. It was further offset by all income earned by her at other jobs during the period of her dismissal, except income from a summer job at the Illinois State Fair; a further offset consisted of sums received as unemployment compensation benefits from the States of Illinois and Texas. McCoy sought, and was denied by the trial court, claims for consequential damages, i.e., fringe benefits provided by the Board, losses from forced liquidation of assets, interest expense on loans, and sick leave. The trial court allowed interest at 6% from the time of the hearing officer’s decision but denied prejudgment interest for the time prior to that decision.

McCoy has appealed the trial court’s order and the Board has cross-appealed. McCoy raises four principal complaints about the trial court’s order: (1) There should have been no offset for money earned at jobs outside the teaching profession, described by her as “menial”; (2) there should have been no offset for unemployment compensation benefits received; (3) prejudgment interest should have been allowed; and (4) consequential damages should have been allowed.

In its cross-appeal the Board complains (1) that McCoy should not be awarded loss of income damages for any times in which she elected to receive unemployment benefits, or in which she did not actively seek other employment, or avoided it; and (2) that the interest award was improper.

We affirm in part, reverse in part, and remand for a recalculation of damages.

A brief synopsis of the pertinent evidence received at the hearings below is appropriate. McCoy testified as to her repeated efforts to obtain a teaching job in other districts in and about Springfield and Sangamon County, but these were to no avail. She also took civil service examinations for jobs with the State of Illinois in the areas of public information officer and social worker. She also applied to the Springfield Recreation Department, travel agencies, the Governor’s Council on Health and Fitness (she was a physical education instructor), Sangamon County Alcohol/Drug Abuse Council, Sangamon State University, Youth Service Bureau, as well as hospitals and nursing homes. When none of these proved fruitful, she applied at numerous restaurants, clubs, and retail establishments (the “menial” jobs).

She did obtain some substitute teaching at Rochester, Sangamon County, schools. This amounted to 24 days during 1979 and 1980. She also worked as a waitress, bartender, and private tutor, and in summer months as an assistant director of special events at the Illinois State Fair. Her most continuous employment was with the Department of Transportation of the State of Illinois. She worked as a cement lab worker from April 1980 to February 1982. She claimed that, with the exception of the Department of Transportation job, all the work was done outside of what would have been regular school hours. Prior to her dismissal she taught Monday through Friday from 8:15 a.m. to 3:30 p.m. She was not required to work during weekends, evenings, or summers.

Following her dismissal, McCoy applied for and received unemployment compensation benefits, $3,514 from the State of Illinois and $1,083 from the State of Texas where she had worked in 1978. She testified as to certain fringe benefits which she received as an employee of the Board, life insurance, medical insurance, personal leave days, and sick leave. An individual from the Illinois Education Association testified that the value of these benefits for the time between McCoy’s dismissal and reinstatement was $717.40. He also testified that under the collective bargaining contract with the Board, a teacher’s sick leave accumulates from year to year and that unused personal leave days also accumulate from year to year as accumulated sick leave.

McCoy also testified as to her straightened financial circumstances during the period of dismissal. She surrendered a retirement annuity, used up her savings, borrowed money from friends and relatives, obtained a loan from her credit union to cover debts, and sold her antiques at a loss.

An individual from the Board’s business office testified that the Board had received a notice from the Illinois Department of-Labor that out of any award made to McCoy, $3,514 of it would be required to be payable jointly to McCoy and the Director of Labor, apparently in a recoupment of unemployment compensation benefits paid.

The first principal issue to be considered is the work performed by McCoy during the period of her dismissal. The battle lines, as drawn by the parties, are fairly clear. McCoy maintains that she was not required to seek nor obtain anything other than a teaching job (denominating other jobs as “menial”) and hence there should be no offset from her damage award as a result of the jobs which she took. The Board, contra, maintains that McCoy spent much of the time during dismissal taking vacations in Texas, Florida, and Mexico; drawing unemployment benefits; and generally not actively seeking other employment. It claims she should not be awarded any “loss of income” damages for those periods.

We are not persuaded that either theory has validity. The record is clear that McCoy made extensive efforts to seek employment, and there is no proof that the trips to Texas, Florida, and Mexico were made for frivolous purposes. The use of unemployment benefits is today so pervasive in our society that it no longer carries the opprobrium which was characteristic of yesteryear.

McCoy’s theory that she was obligated to seek only academic employment represents an effort to engraft conditions upon the law which do not exist. She cites a variety of cases from other jurisdictions which have so held, but there is no such authority in Illinois. Some earlier cases (School Directors v. Kimmel (1889), 31 Ill. App. 537; Betebenner v. Board of Education (1949), 336 Ill. App. 448, 84 N.E.2d 569) contain some dicta to that effect, but the modern rule is stated in Bessler v. Board of Education (1977), 69 Ill. 2d 191, 198-99, 370 N.E.2d 1050,1053-54:

“The appropriate remedy for the wrongful discharge of a nontenured teacher is an action for breach of contract. [Citation.] The measure of damages is the salary provided in the contract [citation] reduced by such sums as the wrongfully discharged teacher has earned or by reasonable diligence could have earned in other employment subsequent to the discharge [citation]. The employer has the burden of showing that the employee could or did have other earnings subsequent to the wrongful discharge and that those earnings stemmed from employment incompatible with the employment from which he was wrongfully discharged.”

We perceive no qualitative difference in the application of the rule to tenured teachers. The test to be applied is not the nature of the work but whether the subsequent earnings were compatible or incompatible with school employment.

Webster’s Second New International Dictionary 544 (1959) defines “compatible” as: “Capable of co-existing in harmony; congruous; accordant; consistent; not repugnant.” An illustration of the principle is found in Board of Education v. Metskas (1982), 106 Ill. App. 3d 943, 949, 436 N.E.2d 587, 592. In that case the wrongfully discharged orchestra teacher also worked as a musician. The Board sought to offset against his damage award the amounts earned as a musician. The appellate court rejected that approach, saying:

“In our opinion, the trial judge properly ruled the work performed by defendant as a musician was not incompatible with defendant’s teaching position. The test for incompatibility is not the amount of earnings from the secondary employment. Rather, the test is whether there are ‘regulatory proscriptions or conflicting hours or duties’ between the two jobs. (People ex rel. Bourne v. Johnson (1965), 32 Ill. 2d 324, 329.) As correctly noted by the trial judge, compatibility between the jobs here was shown in that defendant had worked as a musician throughout the years he was teaching. Defendant testified his duties as a musician continued to be compatible with teaching during the years as these duties were performed only on evenings or on weekends. Plaintiff, whose burden it is to prove the incompatibility of the jobs (Bessler v. Board of Education (1977), 69 Ill. 2d 191, 199), did not effectively rebut this testimony. We therefore affirm the finding of the trial judge that plaintiff is not entitled to an offset.” 106 Ill. App. 3d 943, 949.

As applied to the instant case, the trial court on remand must determine which of the various positions, waitress, bartender, etc., were compatible with school employment, i.e., were worked outside of regulatory proscriptions or conflicting hours or duties. The total shall not be offset against the award. Those which are found to be incompatible shall be so offset. It appears that the employment at the State Fair was compatible; it was worked in the summer outside of school term; this court may take judicial notice of the fact that the Illinois State Fair is held for 10 days in midsummer. However, should any contrary evidence appear, such time as might overlap a school term should be deemed incompatible.

Such a rule is only fair to both parties; it allows the teacher to retain what he might have properly had otherwise by working a second job, commonly referred to as “moonlighting.” On the other hand, if incompatible work is not allowed as an offset, it would be tantamount to the imposition of punitive damages on the Board. Wells v. Board of Education (1970), 121 Ill. App. 2d 112, 257 N.E.2d 252.

The job with the Department of Transportation is clearly incompatible with employment in the schools. It was a full-time job, substitutionary to school employment. McCoy argues that the summer months on this job should not be offset. We do not agree. The nature of the job was such as to prohibit any fracturing of it to fit into a theory of damages.

We next consider the offsets allowed for unemployment benefits from the State of Illinois, and find that they were improperly allowed.

An analysis of this problem requires an examination of the interplay of various sections of the Unemployment Insurance Act (Act). Ill. Rev. Stat. 1981, ch. 48, par. 300 et seq.

The starting point is the admitted fact that the Board makes payments in lieu of contributions under section 1405(B) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 555(B)). Under this system, the Board is charged each quarter for the amounts paid out by the Director of Labor as benefits. (Ill. Rev. Stat. 1981, ch. 48, par. 555(C).) There is no indication in this record that this procedure was not followed in McCoy’s case. She collected $3,514 in benefits from the Department of Labor, and the Department apparently charged the Board for this amount.

The next significant section of the Act is section 900(D) relating to recoupment (Ill. Rev. Stat. 1981, ch. 48, par. 490(D)). This section provides:

“Whenever, by reason of a back pay award made by any governmental agency or pursuant to arbitration proceedings, or by reason of a payment of wages wrongfully withheld by an employing unit, an individual has received wages for weeks with respect to which he has received benefits, the amount of such benefits may be recouped or otherwise recovered as herein provided. An employing unit making a back pay award to an individual for weeks with respect to which the individual has received benefits shall make the back pay award by check payable jointly to the individual and to the Director.”

It will be remembered that an employee of the Board testified that a notice had been received directing that $3,514 of any award be made payable jointly to McCoy and the Director of Labor. It is thus apparent that the Department of Labor intends to recoup the payments made to McCoy inasmuch as she is not entitled both to back pay and unemployment compensation.

The Board argues that it will be penalized, that it has already paid the Department the $3,514 under the Director’s quarterly charge, and that unless it receives an offset, it will pay again. The argument overlooks other provisions of the Act. Section 1405(C) (Ill. Rev. Stat. 1981, ch. 48, par. 555(C)), in addition to providing for the quarterly charge by the Director, also states:

“All of the provisions of subsection B of Section 1404 pertaining to nonprofit organizations, not inconsistent with the preceding sentence, shall be applicable to payments in lieu of contributions by a governmental entity.”

Section 1404(B)(4) (Ill. Rev. Stat. 1981, ch. 48, par. 554(B)(4)) provides:

“All of the provisions of Section 2201, applicable to adjustment or refund of contributions, interest and penalties erroneously paid and not inconsistent with the provisions of this Section, shall be applicable to payments in lieu of contributions erroneously made or interest or penalties erroneously paid by a nonprofit organization.”

Section 2201 referred to (Ill. Rev. Stat. 1981, ch. 48, par. 681) sets up a structure for a refund or adjustment of contributions.

The pattern will then be: $3,514 of the back-pay award will be made payable to McCoy and the Director of Labor; the Director will recoup his payments to which McCoy is not now entitled upon obtaining the back-pay award; the Board will then in a separate proceeding seek a refund of $3,514 from the Director under section 2201. While taking on all the aspects of the Cretan labyrinth, the procedure is that mandated by statute.

It then follows that the trial court was in error in allowing the Illinois unemployment benefits as a setoff. The same is true of the Texas benefits, but for a different reason. There is nothing in the record to indicate that Texas has a recoupment provision similar to that of Illinois. The Board bears the burden of proving that its damages were mitigated. (Bessler.) Although it has shown that McCoy received unemployment benefits from Texas, it has failed to show that she will be entitled to keep that money once a back-pay award has been made. Therefore, the setoff reflecting the Texas payments was also improperly made.

As to McCoy’s consequential damages, we agree with the trial court that much of this was too speculative to support an award. There appears to be no serious argument that McCoy did surrender her annuity policy, borrow money, and dispose of personal assets. However, there was ho evidence introduced by her to document her living expenses. The record is clear that she had access to approximately $56,000 during a period in which she would have earned approximately $37,000, had she not been dismissed.

We can find no basis for allowing the value of life and medical insurance during the dismissal period. McCoy has not shown that she incurred any medical expenses. Accordingly, she has not established that she has been affirmatively damaged by the loss of those benefits. (See Mass v. Board of Education (1964), 61 Cal. 2d 612, 394 P.2d 579, 39 Cal. Rptr. 739.) She has been damaged by the refusal of the trial court in its order to credit her with accrued sick days during the dismissal period. These must be computed and ordered accrued on remand.

Finally, we turn to the second element in the Board’s cross-appeal, the matter of interest. It will be recalled that the trial court allowed interest from the date of the hearing officer’s report. This was erroneous. Interest is allowed only on a judgment (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1303). The report was not a judgment. The judgment arose upon the order of the circuit court made and entered on June 23,1983. Interest, if any, accrued from that date.

The leading case on the subject is Pinkstaff v. Pennsylvania R.R. Co. (1964), 31 Ill. 2d 518, 202 N.E.2d 512. In that case the plaintiff recovered a judgment against the defendant in 1957 and then took a succession of appeals which terminated in 1961 with a denial of certiorari by the United States Supreme Court. The defendant then tendered the amount of the judgment with interest from 1961. The trial court, on plaintiff’s motion, corrected the amount, declaring the interest was due from the date of the judgment in 1957. The appellate court reversed and the supreme court then reversed the appellate court and construed the statue in question.

“Accordingly, we are of the opinion that the purpose and effect of the 1955 amendment [permitting tender] was to express the legislative intent that the plaintiff should be entitled to interest upon his judgment as specified in section 3 even though by appeal he seeks to correct errors therein. ***
The result here reached is compatible with the legislative philosophy behind the award of interest upon damages between verdict and judgment which is intended to make the plaintiff whole up to that point. The accrual of interest upon the judgment, regardless of by whom appealed, is only an extension to its logical terminus of the ‘make the plaintiff whole’ philosophy. This result works no hardship on the judgment debtor because the interest accrues only if and during such time as he fails to make a valid tender. A tender, within the legal meaning of the word, once made, stops the accrual of interest instanter. If the judgment debtor makes no tender, he benefits from the use of the money which by his failure to appeal he concedes is due the plaintiff. Thus, he still has the clear cut choice which he always had.” 31 Ill. 2d 518, 524-25, 202 N.E.2d 512, 515-16.

We believe that the rationale of Pinkstaff is applicable here. The trial court entered a money judgment for the plaintiff; the plaintiff appealed in order to correct errors therein; the Board cross-appealed, but only the matters of unemployment compensation and interest; it thus admitted that the major portion of the judgment was correct. While the sum involved here is less specific and liquidated than that in Pinkstaff it is not incapable of determination by simple mathematics.

Therefore, in summary, the trial court’s order is affirmed in part, reversed in part, and remanded with directions to recalculate the award by: (1) determining which of McCoy’s jobs, apart from the State Fair and Department of Transportation, were compatible or incompatible with her school employment and eliminating a setoff for such as were compatible; (2) eliminating the setoff for unemployment compensation benefits; (3) calculating interest on the figure so determined from June 23, 1983, at the statutory rate as provided in section 3 of “An Act in relation to the rate of interest and other charges in connection with sales on credit and the lending of money” (Ill. Rev. Stat. 1981, ch. 17, par. 6403); and (4) recalculating McCoy’s costs, including the costs of this appeal; and then entering a new order in accordance with the views expressed in this opinion.

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

TRAPP and GREEN, JJ., concur.