author: Mr. JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID B. CHAPUT, Defendant-Appellant.
    Fourth District
    No. 17099
    Opinion filed October 7, 1981.
    Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, and Kevin D. Back, law student, for appellant.
    Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE WEBBER

delivered the opinion of the court:

Following a bench trial in the circuit court of Vermilion County, the defendant, David Chaput, was convicted of two counts of aggravated assault and one count of reckless conduct, in violation of sections 12 — 2 and 12 — 5 of the Criminal Code of 1961. (Ill. Rev. Stat. 1979, ch. 38, pars. 12 — 2, 12 — 5.) He was sentenced to 10 months’ imprisonment on each count, the sentences to run concurrently.

On appeal, defendant contends that evidence of his prior convictions was improperly admitted and that the trial court erred in failing to inform him of the possibility of treatment under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1979, ch. 91%, par. 120.1 et seq.). We affirm the defendant’s conviction, but remand for a new sentencing hearing.

A detailed recitation of the facts is not necessary for disposition of the instant case. The charges against defendant arose from a series of incidents occurring on July 4, 1980. Defendant threatened an individual first with a knife and subsequently with a “2 x 4.” Later that evening, he fired two shots with a shotgun from the passenger’s window of a car while passing a crowd at an outdoor party. Fortunately, no one was injured in the incident. At trial, defendant briefly testified in his own behalf, and during cross-examination the prosecution sought to impeach him by questioning him about his prior convictions. The State failed to offer into evidence certified copies of those convictions.

At defendant’s sentencing hearing, he testified that at the time of the offenses he was under the influence of Quaaludes and alcohol. He acknowledged that he considered himself to have an alcohol and drug problem. He had also voluntarily enrolled in a drug and alcohol rehabilitation program at Harmony House. Harmony House is a residential drug and alcohol rehabilitation center. He had been a resident at Harmony House for about 35 days prior to the sentencing hearing. At that time, he was attending five meetings a day, five days a week, at Harmony House. Defendant stated that it was his belief that the therapy at Harmony House was helping him in that he had not had any drugs or alcohol since starting therapy. A letter from the defendant’s counselor in the rehabilitation program indicated that he was in need of continued therapy. Defendant had indicated to the probation officer during the presentence investigation that he had no drug or alcohol problem. At the sentencing hearing, he testified that he had lied to the probation officer since he believed things would go worse with him if the judge knew he had a drug problem. The record does not reflect that either defense counsel, the state’s attorney, or the trial judge raised the possibility of further proceedings under the Dangerous Drug Abuse Act.

Defendant first contends that during cross-examination by the prosecution he was improperly questioned concerning his prior convictions. The prosecution sought to impeach his credibility by questioning him regarding his prior convictions, rather than by submitting records of conviction or copies. It was clearly improper for the prosecution to do so. However, defendant failed to object to the improper questioning at trial. It has previously been held in People v. Clark (1979), 73 Ill. App. 3d 85, 391 N.E.2d 576, that error in the use of cross-examination to prove prior convictions of the accused is waived if not raised at the time of the elicitation of the information. While we are aware of authority that such improper cross-examination may constitute plain error, which may be considered by a court of review, a reversal is not mandated unless the error deprived the defendant of substantial justice or influenced a finding of guilt. We conclude that in view of the evidence present in the instant case, the error here was harmless.

Defendant also contends that the trial court erred in sentencing him without giving any consideration to an alternate disposition under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1979, ch. 91M, par. 120.1 et seq.) (Act). Effective September 20, 1979, section 10 of the Act was amended to read:

“If a court has reason to believe that an individual convicted of a crime is an addict or the individual states that he is an addict and the court finds that he is eligible to make the election provided for under Section 8, the court shall advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by the Department.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 91M, par. 120.10.)

Prior to the amendment, section 10 read:

“If a court has reason to believe that an individual convicted of a crime is an addict or the individual states that he is an addict and the court finds that he is eligible to make the election provided for under Section 8, the court may advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by the department.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 9W, par. 120.10.)

We find, as did the Appellate Court, Fifth District, recently, that the word “shall” in the amendatory act is mandatory. (People v. Davis (1981), 95 Ill. App. 3d 1097, 420 N.E.2d 1035.) Therefore, when the information conveyed to the trial judge is sufficient to give reason to believe that the defendant is an addict, the trial judge must inform the defendant of the possible disposition under the Act. In the instant case, there is no indication in the record that possible use of the Act was even considered.

We believe that the evidence in the present case was sufficient to flag the trial judge’s attention and to give reason to believe that the defendant is an addict. Whether or not the defendant is actually an addict as contemplated by the Act remains to be seen. As in Davis, defendant had voluntarily enrolled in a drug rehabilitation program and at sentencing told the court that he had committed the crimes because of the use of drugs. We also note that the record reflects that defendant had a number of prior drug-related convictions. We conclude that sufficient evidence is present to give reason to believe that the defendant is an addict.

We have previously noted that defendant failed to raise the possibility of applicability of the Act. We are aware of the recent case of People v. Kuesis (1980), 83 Ill. 2d 402, 415 N.E.2d 323, in which the supreme court held that under section 10, prior to the amendment, a trial court need not exercise its discretion and inform a defendant of the provisions of the Act unless the defendant had applied for probation under the Act by filing a petition seeking to elect the treatment. Therefore, prior to the amendment of section 10, even if the defendant had filed a petition with the court, the court was under no obligation to comply with his request. However, the Kuesis court was aware of the new amendment to section 10 of the Act and expressly declined to say how the amendment would affect the case before them, because the defendant in that case had been sentenced a year prior to the amendment’s becoming effective. Since we have previously concluded that section 10 of the Act now makes it mandatory upon the trial judge to inform the defendant of possible disposition under the Act if he has reason to believe that the defendant is an addict, we conclude, as the court did in Davis, that failure of the defendant to petition the court will not bar the defendant’s right to elect possible treatment under the Act.

The State argues that the court was not required to consider sentencing alternatives under the Act because the defendant was not otherwise eligible for treatment under the Act. Section 8 of the Act describes those defendants who are eligible for treatment under the Act. (Ill. Rev. Stat. 1979, ch. 91M, par. 120.8.) Section 8 of the Act provides that an addict is not eligible for treatment under the Act if: “* 0 * other criminal proceedings alleging commission of a felony are pending against the addict.” (Ill. Rev. Stat. 1979, ch. 91%, par. 120.8.) The State points out that in the instant case defendant was awaiting sentencing on an unrelated theft charge to which defendant had previously entered a guilty plea. In People v. Moore (1975), 31 Ill. App. 3d 653, 334 N.E.2d 406, it was held that where a defendant pleaded guilty to two charges in exchange for other charges being dropped, the fact that two distinct charges were being disposed of at one sentencing hearing did not constitute one of those charges as a predicate for another criminal charge pending, within the meaning of section 8 of the Act. In People v. Morguez (1980), 90 Ill. App. 3d 471, 413 N.E.2d 128, the appellate court held that when the defendant had five unrelated felonies before the same court in which the defendant was awaiting sentencing, the defendant was not precluded from participating in drug treatment because of section 8 of the Act. Likewise, we believe that when the defendant’s guilt has been adjudicated or the defendant has entered a plea of guilty and is merely awaiting sentencing, there are no pending felony charges as contemplated within section 8 of the Act.

In view of the foregoing considerations, the defendant’s conviction is affirmed. We vacate the sentence and remand the cause to the circuit court of Vermilion County for the court to advise the defendant pursuant to section 10 of the Act.

Conviction affirmed; sentence vacated; cause remanded with directions.

TRAPP, P. J., and LONDRIGAN, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE MILLS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS RAY JAMES, Defendant-Appellant.
    Fourth District
    No. 15485
    Opinion filed October 15, 1981.
    Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and Garry Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE MILLS

delivered the opinion of the court:

Murder — 40 years.

We affirmed.

The United States Supreme Court has sent it back to us.

We must now reverse and remand.

James’ conviction for the murder of David Holler is here upon remand by the Supreme Court of the United States (James v. Illinois (1981),_U.S__, 69 L. Ed. 2d 386,101 S. Ct. 3001), which directed this court to reconsider our decision affirming the conviction in light of Edwards v. Arizona (1981), 451 U.S__, 68 L. Ed. 2d 378,101 S. Ct. 1880.

Defendant’s statement, implicating himself in the murder of David Holler, was admitted against him at trial. Although James invoked his right to have counsel present during interrogation while he was being transported to jail following his arrest, this court determined that James retracted this right by agreeing to talk to the officers without an attorney being present and by signing four waiver forms which state that he waived his Miranda rights. It was nearly 24 hours after he said he wanted an attorney present before James gave the statement sought to be suppressed. A full recitation of the factual setting involved here is set forth in our original opinion. People v. James (1980), 82 Ill. App. 3d 551, 402 N.E.2d 936.

Edwards v. Arizona now requires suppression of defendant’s statement.

Under Edwards, a finding that a statement is voluntarily given is insufficient to allow admission of a statement obtained from an accused who has invoked his right to have counsel present during custodial interrogation. Reasoning that additional safeguards are necessary when an accused asked for counsel, the court held that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation, even if he has been advised of his rights. An accused who has expressed his desire to deal with the police only through counsel is not subject to further interrogation until counsel has been made available, or unless the accused himself initiates further communications, exchanges or conversations with the police. Edwards v. Arizona (1981), 451 U.S__,_, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880,1884-85.

This additional safeguard — which precludes interrogation of an accused who has invoked his right to counsel until counsel has been made available — was not fulfilled in the instant case. Nor does the record support the State’s contention that James himself initiated these interrogations. But see People v. Thomas (1981), 98 Ill. App. 3d 852, 424 N.E.2d 985.

Defendant’s conviction must therefore be reversed and the cause remanded for a new trial. Statements made by defendant James after he invoked his fifth and fourteenth amendment right to have counsel present during interrogation may not be admitted.

Reversed and remanded.

TRAPP, P. J., and WEBBER, J., concur.


author: Mr. PRESIDING JUSTICE TRAPP

text:
    WESLEY McCOY, Plaintiff-Appellee, v. JOSEPH T. BROWN, Sheriff of Champaign County, et al., Defendants-Appellants.
    Fourth District
    No. 16036
    Opinion filed October 15, 1981.
    Thomas J. Difanis, State’s Attorney, of Champaign (Joseph D. Pavia, Assistant State’s Attorney, of counsel), for appellants.
    Edward Rawles, of Reno, O’Byrne & Kepley, of Champaign, for appellee.
   Mr. PRESIDING JUSTICE TRAPP

delivered the opinion of the court:

Defendant sheriff and the defendant county appeal from a judgment in the sum of $284 and costs entered upon the pleadings in favor of plaintiff.

The complaint alleged that plaintiff was a commissioned deputy sheriff and that on May 31, 1979, the sheriff suspended plaintiff without pay for 5 working days, and that on June 4, 1979, plaintiff’s request for a hearing and review before the Sheriff’s Department Merit Commission was denied.

Pursuant to statute, the Champaign County Board in 1965 established a Sheriff’s Department Merit Commission. The rules adopted by the commission provided, in part, that the sheriff without filing charges before the commission may suspend a member of the department with or without pay for a period not to exceed 30 consecutive working days. Such suspension must be reported to the commission in writing.

The regulations adopted by the merit commission also provide standards of conduct for members of the department, and that a violation will subject an employee to disciplinary action or dismissal.

The complaint alleged that the imposition of suspension and the denial of review by the merit commission deprived plaintiff of property without due process under the fourteenth amendment of the Constitution of the United States, and article I, section 2, of the 1970 Illinois Constitution. Plaintiff alleges that he was deprived of the wages for the 5 working days without due process.

The joint answer of defendants denied that any constitutional rights of plaintiff were abridged and as affirmative defenses pleaded that the constitutional provisions for due process do not require a hearing before the Sheriff’s Department Merit Commission where the suspension is for a period of 5 days; that plaintiff was notified that within 72 hours he might appeal the suspension to the “Departmental Disciplinary Appeal Board” established by the sheriff, and further alleged alternatively, that prior to the suspension the sheriff conducted an investigation of the misconduct for which suspension was imposed, including an interview between the sheriff and the plaintiff in December 1978; two interviews between the sheriff, his chief deputy and plaintiff in March 1979; a polygraph examination of plaintiff in February 1979, and interviews and polygraph examinations of potential witnesses and suspects in the matter of the alleged misconduct. It is further alleged that in the interviews with plaintiff, the sheriff explained the misconduct charged and plaintiff was given an opportunity to respond and explain his version of the events. The answer and affirmative defenses were verified by the sheriff, and no denial of the allegations appears in the record.

Plaintiff filed a motion under section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45) to strike the affirmative defenses and for judgment on the pleadings, alleging that the facts pleaded as an affirmative defense did not constitute a legal defense to the action, and that there were no issues of fact to be heard.

The trial court found that the answer did not plead facts which provide “as a matter of law an affirmative defense to plaintiff’s complaint,” denied defendants’ motion for summary judgment and entered judgment for the plaintiff.

It is unnecessary to review the numerous cases which examine property rights in uninterrupted employment in the context of constitutional due process, for we conclude that the issue here is controlled by the opinions in Goss v. Lopez (1975), 419 U.S. 565, 42 L. Ed. 2d 725, 95 S. Ct. 729, and Kropel v. Conlisk (1975), 60 Ill. 2d 17, 322 N.E.2d 793.

In Goss, the court reviewed the disciplinary suspension for misconduct by high school students for periods of 10 days or less. The facts stated in the opinion disclose that the several administrative suspensions were summary in nature and made without any opportunity for explanation by the student, and without any verification of the alleged reasons for suspension.

Finding that due process requirements applied to such suspensions, the court examined the form and the degree of due process required as to the facts at hand. The court stated:

“We turn to that question, fully realizing as our cases regularly do that the interpretation and application of the Due Process Clause are intensely practical matters and that ‘[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.’ [Citation.]” 419 U.S. 565, 577-78, 42 L. Ed. 2d 725, 737, 95 S. Ct. 729, 738.

It was said that students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing, and that the nature of the notice and of the hearing depended upon appropriate accommodations of the competing interests involved. Referring to the complex administrative problems presented upon the facts, the court determined that the student should be given notice of the charges against him and, if such are denied, an explanation of the evidence possessed by the disciplinarian, and further required that the one charged have an opportunity to present his version of the facts. The process is described as “rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school.” In such context, the language of the opinion continued:

“In the great majority of cases the disciplinarian may informally discuss the alleged misconduct with the student minutes after it has occurred. We hold only that, in being given an opportunity to explain his version of the facts at this discussion, the student first be told what he is accused of doing and what the basis of the accusation is.” 419 U.S. 565, 582, 42 L. Ed. 2d 725, 739, 95 S. Ct. 729, 740.

The court further stated:

“We stop short of construing the Due Process Clause to require, countrywide, that hearings in connection with short suspensions must afford the student the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident. Brief disciplinary suspensions are almost countless. To impose in each such case even truncated trial-type procedures might well overwhelm administrative facilities in many places and 006 cost more than it would save in educational effectiveness. * °
On the other hand, requiring effective notice and informal hearing permitting the student to give his version of the events will provide a meaningful hedge against erroneous action. At least the disciplinarian will be alerted to the existence of disputes about facts and arguments about cause and effect.” 419 U.S. 565, 583-84, 42 L. Ed. 2d 725, 740, 95 S. Ct. 729, 740-41.

The court continued to state:

“We should also make it clear that we have addressed ourselves solely to the short suspension, not exceeding 10 days. Longer suspensions ° ° * may require more formal procedures.” 419 U.S. 565, 584, 42 L. Ed. 2d 725, 740, 95 S. Ct. 729, 741.

In Kropel, a Chicago police officer was summarily suspended for a period of 30 days despite his denial of the charge made and a request for a hearing which remained unanswered.

The opinion of the supreme court noted that the Municipal Code provided that a police officer could not be discharged or suspended for more than 30 days except upon written charges and the opportunity to be heard before the police board on the issue of cause. The Code further provided that such provision did not limit the power of the superintendent of police to suspend a subordinate for a period not to exceed 30 days. In this case, the regulations of the merit commission are stated in the same terms.

The supreme court found that presently and historically the Municipal Code provided that employees suspended for more than 5 days shall be entitled to a hearing upon request. After further analysis comparing the Municipal Code with the Personnel Code, the court concluded:

“[I]t is clear from the statutes and rules above set forth that the public policy of this State, regardless of any constitutional considerations, is that a disciplinary suspension of more than 1 week of scheduled working days cannot be levied without providing some means of review of the suspension.” 60 Ill. 2d 17, 25, 322 N.E.2d 793, 797.

We find that within the analysis made in Goss, the suspension at issue was neither summary nor arbitrary. It has not been denied that over a period from late December to the succeeding June, there were interviews between plaintiff and the sheriff and other ranking administrative officers of the department. Upon the present record, it is clear that the 5-day suspension lies within the boundaries of constitutional due process as prescribed in Goss v. Lopez and Kropel v. Conlisk. For such reasons the trial court erred in ruling that the defendants’ pleadings did not allege facts which would provide, as a matter of law, an affirmative defense and we reverse the judgment entered.

By reason of the trial court’s ruling on the motions to strike defendants’ affirmative defenses, and for judgment on the pleadings, the verified answer including the affirmative defenses of the defendants remains neither admitted nor denied, and the cause must be remanded for further proceedings not inconsistent with the ruling herein.

Reversed and remanded.

GREEN and WEBBER, JJ„ concur.


author: Mr. JUSTICE GREEN

text:
    GREGORY L. COLER, Director of the Department of Children and Family Services, et al., Plaintiffs-Appellees, v. CARLOS REDD et al., Defendants-Appellants.
    Fourth District
    No. 16933
    Opinion filed October 15, 1981.
    Earle McCaskill, of East St. Louis, for appellants.
    Tyrone C. Fahner, Attorney General, of Chicago (Joseph D. Keenan, III, Special Assistant Attorney General, of counsel), for appellees.
   Mr. JUSTICE GREEN

delivered the opinion of the court:

On August 31, 1979, petitioner, Department of Children and Family Services (DCFS), filed a petition with the Illinois Civil Service Commission (Commission) seeking to discharge for cause its certified employee, respondent, Carlos Redd, a caseworker. The charges alleged he had failed to “complete recordings and updating” on his assigned cases and he had been excessively tardy. After a hearing before a hearing officer, the Commission found the charges to have been proved only in part and imposed only a sanction of supervision and suspension. On August 20, 1980, DCFS filed a petition for administrative review in the circuit court of Sangamon County. That court found the Commission’s decision to be contrary to the manifest weight of the evidence and reversed and remanded. We, in turn, affirm the decision of the circuit court with a more specific mandate.

The administrative hearing was held upon respondent’s demand pursuant to section 11 of the Personnel Code (Ill. Rev. Stat. 1979, ch. 127, par. 63blll). The hearing officer recommended only a suspension of 30 days, but the Commission ordered a 90-day suspension to be enforced in addition to a 30-day suspension previously imposed.

The testimony on behalf of DCFS was given by people who had supervised defendant or had worked with him. The undisputed evidence was that defendant was excessively tardy and had failed to complete recordings and updating on his assigned cases. However, the evidence was disputed as to why defendant had failed to complete these procedures.

Helen Cox, the Regional Child Development Coordinator for DCFS, testified that at times she had been defendant’s supervisor. She stated while she supervised him from June through October, 1974, defendant failed to bring his case recordings up to date, even though he had received a delinquency report. Cox testified that recordings are memoranda placed by a caseworker in a client’s file indicating what activities the caseworker has engaged in on behalf of or with the client. She stated the recordings are necessary under Federal regulations requiring the department to document the work done in a given case situation and these recordings must be completed and submitted every six months. Cox explained that a case was closed when the supervisor determined no additional services were needed in that case. She stated the caseworker would do the paperwork and then submit the case to the supervisor for that determination. Cox testified that if the worker failed to make the recordings, the supervisor would not have any direct information on the client.

Vivian Sanders testified she was defendant’s direct supervisor during the months of June through August of 1979, the period of the charges against defendant. She stated that defendant: (1) failed to submit the required daily service sheets which indicated what had occurred during the work day; (2) was tardy 20 times from the end of June 1979 through July 1979, the period during which time sheets were kept; (3) failed to place any files in such condition that they could be closed, all in disregard of an agreement defendant had with her to close most of his cases within a 30-day period; (4) read magazines and newspapers while at his desk instead of doing his work; and (5) took two unauthorized absences. Sanders stated that on July 25,1979, she wrote defendant a memorandum stating she was recommending disciplinary action against him due to his conduct. Previously, Sanders had written defendant memoranda regarding his tardiness and his unauthorized absences, and four memoranda regarding his case recordings and closings. Sanders also testified that workers under her supervision were permitted to determine when a case could be closed.

Deborah Moffatt and Robert Clark, social workers who were assigned to defendant’s cases after discharge proceedings were initiated, testified none of defendant’s cases were current in their recordings. Moffatt testified the most recent recordings ranged from one to three years old. Both Moffatt and Clark stated the paperwork involved in closing the cases required about two hours each to complete. Prior to closing each case, Moffatt stated she spent approximately three hours on it and Clark stated he spent one or two days. Moffatt and Clark further testified they were able to close all but a few of defendant’s cases.

A number of witnesses testified on behalf of defendant. However, none of them had any personal knowledge of what occurred in the East St. Louis office where defendant was employed while Vivian Sanders supervised defendant. Lorraine Sanders, an account clerk in the office from June 1976 to April 1977, testified she thought Cox “picked” on defendant. Joanne Woods, a child welfare worker in the office from 1974 to April 1979, and defendant’s girlfriend, testified defendant’s delinquent recordings were no longer than anyone else’s in the office. Woods stated that Cox was stricter with defendant than with other employees and the relationship between Cox and defendant was poor. Barbara McKissic, a social worker in the office from June 1976 to October 1978, testified the relationship between Cox and defendant was hostile and Cox was not able to provide supervisory assistance to defendant. Jeffrey Gunn, one of defendant’s former supervisors, testified he made no written warnings to defendant during the period he supervised him, although defendant may have had a problem with tardiness.

Defendant testified he felt he had been singled out by Cox, as Cox told him that she was preparing the paperwork to get rid of him. Defendant stated Cox would not permit him to close cases, although she would permit other employees to do so. He further stated he did not receive any memoranda regarding updating his cases or regarding his tardiness.

The hearing officer found defendant’s claim that he was the object of a campaign to harass him and to build a record against him for discharge was “plausible and supported by the evidence.” The officer further stated:

“The evidence shows that Respondent did all of the social work required in the cases assigned to him. However, the cases remained open. The two workers to whom the cases were assigned testified that it took them only one to two hours per case to close these cases. It is difficult to believe that Respondent would do all of the work, complete the services to the clients, and then fail to carry out a relatively ministerial or clerical duty. If he had done all the work, surely it would be reasonable for him to close the case. What is particularly striking is that one of the workers to whom his case was given testified that she was told by Cox’ supervisor, Vivian Sanders (evidently Cox and Vivian Sanders interchange in their supervision of Respondent) that the most recent recording in Respondent’s cases was made in the fall of 1978. This was one year previous to Respondent’s discharge. If Cox and Sanders were giving adequate and fair supervision to Respondent, it is difficult to see how they could have permitted these cases to have gone for a period of over one year without being closed. They could have and should have taken immediate action upon a refusal or neglect on the part of Respondent to close a case and not wasted a year.
The fact that these cases were left open for such a long period of time confirms Respondent’s allegation that a ‘paper trail’ was being made against him and that he was being set up for discharge by Cox’ refusal to permit him to close his cases. Perhaps he was at fault in this matter, but the record shows that whatever fault he was guilty of in this regard was condoned by Cox and Sanders for a period of time until they evidently felt that the unclosed cases constituted a noose in which to hang the Respondent.”

The hearing officer found defendant not guilty of the charge of failing to record and update his cases. As to the tardiness charge, the officer found that while defendant was late, it was apparent he was being closely watched for his tardiness and the tardinesses were used as a pretext for his discharge.

Generally, the proper standard to be used on review in determining whether the findings of an administrative agency should be overturned is whether they are contrary to the manifest weight of the evidence. Most recently the supreme court stated in Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, that a court’s scope of review of a Civil Service Commission decision regarding discharge is a two-step process. First, the court must determine if the agency’s findings of fact are contrary to the manifest weight of the evidence. The findings on questions of fact are to be held prima facie true and correct. If the findings are not contrary to the manifest weight of the evidence, the second step is to determine if the agency’s findings provide a sufficient basis for the agency’s conclusion that cause for discharge does or does not exist.

In the foregoing case, all of the levels of reviewing courts found the Commission’s findings to not be against the manifest weight of the evidence. However, the trial and appellate courts, contrary to the Commission, concluded defendant’s conduct in striking a mental patient was sufficient cause for discharge. The supreme court reversed, stating the agency’s decision as to cause should not be reversed unless it is arbitrary, unreasonable, or unrelated to the requirements of service. The court stated that cause has been judicially defined as “ ‘some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding the position.’ ” (85 Ill. 2d 547, 551.) There.the court could not find the Commission’s decision, under the record, to be arbitrary, unreasonable, or unrelated to the requirements of service.

Although substantial deference must be given to the Commission’s findings, we conclude that the Commission’s findings, that defendant was not guilty of failing to complete recordings and updating of his cases and that any failure upon his part to do so was merely the result of harassment and lack of supervision by Cox and Sanders, are palpably contrary to the manifest weight of the evidence. There is no dispute defendant failed to make recordings, and cases could not be closed without recordings. Cox may have refused to permit closing of many cases, but cases could not have been properly closed until all recordings had been made. Defendant seemed to indicate he was so busy with other things he could not make the recordings, yet during the month when he was given a final opportunity to bring his work up to date, he was tardy from 30 minutes to an hour on 20 days. Under those circumstances, we deem it evident that the Commission’s determination defendant’s tardiness was a mere pretext for his firing was clearly wrong.

We do not agree with the Commission’s conclusion the evidence indicates most of the files could have been closed with one to two hours’ work. The testimony of Moffatt and Clark was that the paperwork could be done for an average of two hours per file but that more time was required to gather the information necessary to make the determination whether the file could be closed.

While the Commission could have believed the defendant’s evidence that Cox had indicated she would get defendant fired, it is important to consider that no evidence existed that Sanders had made such a statement. In any event, the overwhelming evidence indicated both had good reason to believe the best interests of DCFS and its clients would be served by relieving defendant of his duties.

The Commission criticizes Cox and Sanders for not having given defendant more supervision and for not having called his failure to keep his work up to date to his attention. Defendant, on the other hand, argues they gave him too numerous memoranda. After examining the memoranda introduced into evidence, we are satisfied that defendant had ample warning of his shortcomings and that the memoranda given him were appropriate. Any determination otherwise was contrary to the manifest weight of the evidence.

Accordingly, we affirm the portion of the trial court order reversing the decision of the Commission. On remand, however, the mandate to the Commission is to enter findings that the charges against defendant have been proved. The Commission shall then, in the light of these findings, enter an appropriate sanction.

Affirmed in part; reversed in part; and remanded.

MILLS and WEBBER, JJ., concur.


text:
    STATE OF MAINE DEPARTMENT OF HUMAN SERVICES ex rel. DOLORES L. SMAIL, Petitioner-Appellant, v. DONALD L. SMAIL, Respondent-Appellee.
    Fourth District
    No. 17080
    Opinion filed October 15, 1981.

      Tyrone C. Fahner, Attorney General, of Chicago (Patricia Rosen, Assistant Attorney General, of counsel), for appellant.
    Robert I. Auler, of Auler Law Offices, of Urbana, for appellee.
   Mr. JUSTICE GREEN

delivered the opinion of the court:

This case concerns an unusual application of section 41 of the Civil Practice Act, which states:

“Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.” Ill. Rev. Stat. 1979, ch. 110, par. 41.

Plaintiff, State of Maine Department of Human Services, appeals an order of the circuit court of Champaign County entered August 4, 1980, ordering it to pay defendant Donald Smail $750 attorney’s fees and $295.36 expenses under the terms of section 41. The award arose out of a proceeding brought under the Revised Uniform Reciprocal Enforcement of Support Act (Ill. Rev. Stat. 1979, ch. 40, par. 1201 et seq.).

The proceeding commenced on January 18,1980, when plaintiff filed a petition in the Superior Court of the State of Maine against defendant seeking support for Dolores Smail and her minor children, Dorothy Smail, Dorinda Smail, and Dean Smail who were alleged to be dependents of defendant. The petition was supported by exhibits indicating defendant was under order of a division of that court in a divorce proceeding to make support payments at the rate of $60 per week and was in arrears in the sum of $13,440 from October 4, 1975, through January 12, 1980. On the same date a justice of that court issued a certificate pursuant to the provisions of the Uniform Reciprocal Enforcement of Support Law of the State of Maine (Me. Rev. Stat. Ann. tit. 19, §331 et seq. (1981)) that: (1) defendant should be held to answer, and (2) the proceedings should be certified to the circuit court of Champaign County within which jurisdiction defendant was alleged to reside.

The certified documents were filed in the circuit court of Champaign County on February 13, 1980, and on February 21, 1980, defendant was personally served by summons issued from that court. The summons set forth a hearing date of March 3, 1980. Upon that date, defendant appeared accompanied by counsel and acknowledged he had a duty to support. However, the record does not indicate he agreed he was in arrears on support payments. The court ordered defendant to make payments at the rate of $60 per week through the clerk of the court. The case was then continued until March 24, 1980, with defendant released upon his bond in the sum of $1000 without surety. On March 24, 1980, defendant filed a motion to dismiss the complaint. The motion contained a charge that the allegations of the petition had been made without reasonable cause and a demand under section 41 for reasonable expenses and attorney’s fees. The request for expenses and attorney’s fees was subsequently placed in a more expanded motion, and plaintiff filed a response to it. On August 4,1980, after a hearing, the order now on appeal awarding attorney’s fees and costs was entered. At that hearing the parties stipulated defendant was not in arrears on support payments previously ordered by the Maine court in the divorce proceeding.

In Murczek v. Powers Label Co. (1975), 31 Ill. App. 3d 939, 335 N.E.2d 172, the court noted that section 41 of the Civil Practice Act is a statute penal in nature and should be strictly construed. The court recognized that the burden is on the petitioner to prove that the allegations against him were made (1) without reasonable cause, (2) were not in good faith, and (3) were untrue (the statute was amended in 1976 to remove the good faith requirement). In Kolkovich v. Tosolin (1974), 19 Ill. App. 3d 524, 529-30, 311 N.E.2d 782, 787, this court stated the purpose of section 41 is to “penalize a litigant who brings up false or frivolous matter, thereby causing his opponent to spend money for an attorney.” In City of Springfield v. Beck (1976), 34 Ill. App. 3d 784, 340 N.E.2d 350, the city had filed a complaint for condemnation and made allegations with reference to the legal ownership of certain property without having conducted a title search. The allegations were found to be erroneous causing other parties added expense because of delays. An award of attorney’s fees to a party so damaged was upheld on appeal upon the basis that the city could have discovered the error by a mere examination of the record of title.

The situation here is quite similar to that in City of Springfield v. Beck. The record showed the plaintiff’s agent to have executed the complaint upon the basis of an affidavit furnished him by Dolores Smail. Defendant was thus subjected to the necessity of incurring attorney’s fees and other legal costs without attempt by plaintiff’s agents to contact defendant to discover if he had ready proof to contradict Dolores Smail’s claims. The record indicated that defendant had cancelled checks showing his compliance with the Maine divorce decree. The attorney for plaintiff stipulated to defendant’s compliance because of those checks.

The trial court could have concluded properly that plaintiff’s agents lacked reasonable cause to make the allegations of the complaint and proceed with the case without first attempting to contact defendant. Such a contact could have been made by plaintiff’s agents in Maine or even after the case was transferred to this State, by employees of the State of Illinois acting as agents of the State of Maine. Such a theory would not have required those agents to make any investigation beyond asking defendant if he had any ready defense. Had that been done here, defendant might well have been spared the expenses for which he was granted . reimbursement.

The trial court’s determination was not contrary to the manifest weight of the evidence nor was it a breach of discretion.

We affirm.

Affirmed.

MILLS and LONDRIGAN, JJ„ concur.


author: Mr. PRESIDING JUSTICE SEIDENFELD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MITCHELL LINK et al., Defendants-Appellants.
    Second District
    No. 80-500
    Opinion filed October 2, 1981.
    Rehearing denied November 13, 1981.

      Lance Háddix, of Chicago, for appellants.
    Fred Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and William Browers, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Mitchell Link and Karen Link, his wife, were jointly tried and convicted of murder in a jury trial. They were each sentenced to 35-45 years in prison. They appeal, contending that they were not proved guilty beyond a reasonable doubt and, alternatively, that various trial errors deprived them of a fair trial.

The defendants were charged with the murder of Kenneth Glabe, Karen Link’s then husband, on June 29,1971. The principal witness for the State was Preston Haig. He testified that Mitchell Link hired him to murder Kenneth Glabe and that Karen Link participated in the murder plot against her then husband. Haig pleaded guilty to the murder under a plea-bargaining agreement with the State and, prior to the beginning of this trial, was sentenced to 14-28 years imprisonment. His truthful testimony at the Links’ trial was part of the agreement.

Haig testified that he had become acquainted with Mitchell Link while Link was working at a drug store which Haig visited as a member of the Arlington Heights police department. Haig resigned from the police department in May of 1971 under threat of internal investigation and began experiencing financial difficulties. In early June he said he had a conversation with Mitchell Link and said that the latter recounted his relationship with Karen Glabe and that Kenneth Glabe would not give her a divorce. Haig testified that Mitchell asked if he knew a “hit” man and, after reflection, Haig agreed to kill Kenneth Glabe for $5,000. They planned for the murder to occur on a stretch of Route 173 in a remote part of Zion. Karen was to go to dinner with Kenneth at the Lake-Air Restaurant in Zion. On the way home she would pretend to be sick and ask Kenneth to let her out of the car; would run up a designated path where Haig was waiting in ambush; and Haig would stab Kenneth many times to make it look like a frenzied murder by a “junkie.” He also planned to leave a syringe and some Preludin at the scene.

Haig testified that on June 29, 1971, he parked his parents’ car at a bowling alley and walked to the ambush site. After waiting an hour he heard a car stop and saw a woman pass by followed by a man. He jumped out and stabbed the man in the back. Thereafter he stabbed the body repeatedly and dragged it behind a bush where he had been hiding. He then hit Karen on the back of the neck as planned and told her to lie down and pretend that she was unconscious. He drove the Glabe vehicle to the bowling alley, left it there, and then drove away in his parents’ car. He said he then called Mitchell Link at the pharmacy and told him that it was done and he then drove around and disposed of the weapon, some of his clothing, and threw away the balance of the clothing into a dumpster near his apartment. Haig eventually ended up in Roswell, New Mexico, and lived there with his new wife Deanna under the name of Scott Savage. In April 1979, Deanna told the police about Haig’s involvement in the murder and he was arrested, waived extradition and was taken to Lake County.

In his testimony Haig also related that about a week before the murder he told his then girl-friend, Jeanine Pelletiere, that he was going to murder for money, that it involved a love triangle situation and that it would take place in a remote area. He said that a day or two after the murder Pelletiere showed him a newspaper clipping about the Glabe murder, asked him if he was the one that had done it, and that he confirmed that he had. He said that when she asked who hired him he gave her a false name, “Phil.” He did not recall if he had asked her for help at this time. He said that his memory was “clouded” about this particular period. After this he had several conversations with Mitchell Link. When he later learned that the police were looking for a man named “Phil” he realized that Pelletiere had talked to the police, and he decided then to leave the State. He called Mitchell and told him of his intentions and said that Mitchell told him he would be paid later. Jeanine Pelletiere testified over defendants’ objection and corroborated that Haig had made the before and after murder statements to her. Jeanine Pelletiere also testified that possibly two days after the murder in her conversation with Haig, Haig told her he was worried about his call to the Northgate Pharmacy to confirm the killing and that it might be traced. She said that.Preston Haig told her that she was to say that she made the call about going out to dinner; and that Preston also wanted her to say that he was at the place where the witness was working on the night of the murder.

Ann DeMillo testified that at about 10:30 p.m. on June 29, 1971, she was driving on Route 173 and saw what she thought was a child lying on the side of the road. She stopped, as did another motorist, and the person, identified later as Karen Link, began scooting away saying “get away from me.” The police were called and Karen related that she and her husband were driving home after dinner, that she felt sick, asked her husband to stop and went to the. weeds to “heave” when someone grabbed her and knocked her out. DeMillo testified that Karen went from calmness to hysteria while relating the story.

A number of police officers who responded to the call or participated in the investigation testified as to their observations at the scene and their investigation of the murder. A number of neighbors testified to seeing Mitchell Link at the Glabe residence frequently shortly after the murder. There was testimony that Karen Link showed a lack of mourning over her husband’s death. Several witnesses also testified as to the amounts of money which Karen Link received as the result of her husband’s death from his life insurance policy, the Veterans Administration, and social security. There was also testimony that Karen took an overdose of sleeping pills on August 6, 1971, the day she was served with a grand jury subpoena.

Deanna Savage, the wife of Preston Haig testified, over an objection that had been made at an in limine hearing. She said that in the period between October 9, 1971, and October 16, 1971, she had a conversation with Preston Haig in her apartment in Long Beach, California, in which he asked if she would make a phone call for him. She said she then went to San Pedro, which is some 9 or 10 miles from Long Beach, to a public phone booth where she again had a conversation with Haig. She related that Haig told her he was going to dial the number and that he needed her to ask for “Mitch” because he was afraid that his voice would be recognized; and that they might answer as a pharmacy. He dialed a long distance number, handed her the phone, she asked to speak to Mitch and a voice answered “I am Mitch.” She said she then handed the phone back to Haig and returned to her car; that when Haig rejoined her he told her he had been indicted by the grand jury and asked her if he could have money wired to him in her name to which she agreed. Over objection the witness was not allowed to go into a further conversation with Haig later that evening, pursuant to an in limine ruling that she could only testify as to the money. The witness testified that Haig had advised her that $1,000 would be wired to the Western Union in Long Beach. When she arrived there she received a check with “Mitch’s” name on it in the amount of $600, which she gave to Haig, receiving $200.

Both defendants testified and denied planning the murder. They both admitted that they had an adulterous relationship in 1970 and that Karen had asked Kenneth for a divorce and that he had refused. Mitchell admitted sending $600 to Preston Haig, but claimed it was repayment for a loan he had gotten from Haig.

The record fully supports our conclusion that defendants were proved guilty beyond a reasonable doubt. The testimony of Preston Haig clearly proves a conspiracy between the defendants and himself to accomplish the murder of Kenneth Glabe. Essentially, defendants argue that the testimony of Haig as a claimed accomplice is unworthy of belief because of inconsistencies, contradictions and because of the benefit he was getting from his plea bargain.

From the whole record, the inconsistencies appear trivial in comparison with the many points upon which Haig’s testimony has been corroborated by the testimony of other witnesses and by many circumstances. The plea bargain under which Haig had already been sentenced which was conditioned only on his truthful testimony at this trial does not, on the record before us, show a sufficient reason to view the testimony of the accomplice as unworthy of belief; and the jury has resolved the issue of credibility by its verdict.

The most serious of defendants’ claims of prejudicial trial error involve the admission of the extrajudicial statements attributed to Preston Haig by Jeanine Pelletiere. The first statement made before the murder, was Haig’s relating to Pelletiere that he had taken a contract to kill a man together with other details of the plan. The second, made possibly two days after the murder, was Haig’s admission that he committed the murder and was hired by a man named “Phil,” as well as his request that Pelletiere provide him with an alibi.

The defendants argue that their constitutional rights to confront witnesses and to cross-examine witnesses who testify against them was violated when Pelletiere was permitted to testify to statements allegedly made by Preston Haig but which he did not remember making. They argue that this unfairly bolstered the credibility of Haig who could not be cross-examined on the issue because of his lack of recall. The State maintains that the statements are admissible as declarations of a co-conspirator explaining a common plan or conspiracy as an exception to the hearsay rule. The State also argues that since on cross-examination defense counsel asked Haig whether he had denied any conspiracy shortly after his arrest in New Mexico, the premurder statement is admissible to rebut the inference of recent fabrication.

We do not agree with that portion of the State’s position which is to the effect that the declaration of co-conspirators to be admissible must merely explain the common plan or conspiracy. We conclude that such declarations must be in furtherance of the conspiracy to be admissible.

Declarations of one conspirator made during the pendency of a conspiracy may be used against both conspirators on the theory that the declarant is the agent of his co-conspirators but “only when made in furtherance of the conspiracy”. People v. Davis (1970), 46 Ill. 2d 554, 558; People v. Goodman (1980), 81 Ill. 2d 278, 284-85. See also People v. Thomas (1976), 38 Ill. App. 3d 689, 692 and Annot., 46 A.L.R.3d 1148, 1155 (1972).

We cannot support the testimony of Pelletiere as to Haig’s declaration of his plan to commit the murder in conspiracy with others, made prior to the murder. We fail to see, and the State has not indicated, how the premurder statements to one who was not a co-conspirator can be termed in furtherance of the conspiracy.

However, in our view, the premurder statements were properly admissible under the second theory suggested by the State, to rebut the inference of recent fabrication created by the defense on cross-examination of Haig. While the defendant argues that the questions asked did not suggest that Haig’s testimony was of recent fabrication, we believe that that is a fair characterization of the questioning. The implication of asking Haig whether he denied any conspiracy shortly after his arrest in New Mexico fairly suggests an inference that Haig was fabricating his testimony implicating the Links some time after his denial. People v. Clark (1972), 52 Ill. 2d 374, 389. See McCormick, Evidence §49, at 106 (2d ed. 1972).

We also conclude that the statements made after the crime were for the purposes of concealment and were admissible. Using the name “Phil” as that of the co-conspirator Mitchell Link was an effort at concealment. Similarly the attempt to create an alibi was to conceal Haig’s involvement in the conspiracy as well as Link’s. “[A] conspiracy includes subsequent efforts at concealment, ° * ° if those efforts are proximate in time to the commission of the principal crime.” In People v. Meagher (1979), 70 Ill. App. 3d 597, 603, a declaration made the morning following the crime was held to be proximate in time to the commission of the underlying offense. (See also People v. McInnis (1980), 88 Ill. App. 3d 555, 565-66.) Here, Haig’s statement to Pelletiere was within two days of the commission of the crime and was directed at concealing his involvement. We therefore conclude that it was properly admissible since it was close enough to the commission of the offense as not to be subject to serious doubts as to trustworthiness. (See People v. Meagher, at 603.) Although there was a long interval between the making of the declaration and the testimony of the witness, the circumstances would suggest that the matter was one which the witness would very likely have remembered.

While the defendants have sought to place the testimony of Deanna Savage (Haig) in the same category as the declarations testified to by Pelletiere, the record does not support this position. The witness was permitted only to testify to what she did with reference to the transfer of money from Mitchell Link to Haig. Mitchell Link in his testimony did not deny sending the $600, but sought to explain the transaction at variance with the testimony of Haig.

Defendants also argue that colored slides of the deceased as shown to the jury over objection were inflammatory and aroused their passion and prejudice. However, the slides have not been made a part of the record on appeal and the alleged error was not raised in a post-trial motion. By failing to raise the alleged errors in a post-trial motion, defendants have waived these issues for purposes of appellate review except on a theory of plain error. (People v. Tannenbaum (1980), 82 Ill. 2d 177, 181-82.) We cannot determine the inflammatory nature of the slides as they are not in the record. The trial court specifically ruled that the slides were not so gruesome as to be inflammatory. In this posture, we deem the error, if any, waived. Moreover recent cases have upheld the introduction of even gruesome colored photos of a deceased on the theory that they were relevant to a fact in issue. (People v. Foster (1979), 76 Ill. 2d 365, 377; People v. Campbell (1979), 77 Ill. App. 3d 804, 817.) Here the slides were relevant to corroborate Haig’s testimony as to the manner in which the wounds were inflicted.

We will comment briefly on the remaining claims of error which we do not find persuasive as grounds for reversal.

Defendants objected at trial to the giving of an instruction that the State was not required to prove a motive for the commission of the crime (IPI Criminal No. 3.04) since, as the record shows, motive was argued to the jury. We agree that it is error to give the instruction when the State produces evidence of motive or argues motive to the jury (People v. Manzella (1973), 56 Ill. 2d 187, 199; People v. McClure (1979), 80 Ill. App. 3d 10, 17.) However, in both of these cited cases and all others cited by the defendants the reviewing court has found the error to be harmless under the particular circumstances. We also conclude that on this record the error did not deny the defendants real justice or influence the jury’s verdict (People v. Manzella, at 200) and was therefore harmless beyond a reasonable doubt.

We also conclude that the court did not err in refusing to allow defendants to impeach the State’s witness Deanna Savage (Haig) by her conviction of a felony in 1968 from which she was released from prison in 1969, more than 10 years prior to her testimony. (People v. Montgomery (1971), 47 Ill. 2d 510, 516.) And, the issue was waived as it was not raised in the post-trial motion. Even if we were to consider it under the rule of plain error, defendants’ position that the Montgomery 10-year rule only applies to defendants and not other witnesses is untenable. See People v. Warmack (1980), 83 Ill. 2d 112, 124.

Defendants argue that testimony by State witnesses concerning their adulterous relationship was irrelevant and prejudiced them by informing the jury of their bad moral character. The defendants did not object at trial to this testimony and therefore have waived the issue. In any event, the evidence was obviously relevant to prove motive and did not constitute the kind of irrelevant bad character condemned in the cases cited by defendants. See, e.g., People v. Butler (1974), 58 Ill. 2d 45, 50; People v. Bailey (1979), 77 Ill. App. 3d 953, 957.

Finally, we find no basis for defendants’ claim that the prosecutor’s closing argument contained reversible error. The first argument complained of is an improper assertion of the prosecutor’s personal belief, but it is in no way egregious or inflammatory. The second argument, asserted to be a misstatement of evidence, appears to accurately recount the evidence as we review the record. Defendants did not object at trial to either of the comments nor raise them in the post-trial motion, and in no sense do we find that they rise to the level of plain error.

The judgments are therefore affirmed.

Affirmed.

REINHARD and HOPF, JJ., concur.


author: Mr. JUSTICE LINDBERG

text:
    WSDR, INC., et al., Petitioners-Appellees, v. OGLE COUNTY, Respondent-Appellant.
    Second District
    No. 81-267
    Opinion filed October 15,1981.

      Dennis Schumacher, State’s Attorney, of Oregon (Kevin Corr, Assistant State’s Attorney, of counsel), for appellant.
    Thomas Kavadas, Jr., of Pignatelli and Kavadas, of Sterling, for appellees.
   Mr. JUSTICE LINDBERG

delivered the opinion of the court:

Respondent, Ogle County Board (Board), appeals from a writ of mandamus of the Circuit Court of Ogle County ordering that its members at the next regular or adjourned session announce publicly for whom they voted in the election for county board chairman held on December 1, 1980. We affirm.

On December 1, 1980, the Board held an organizational meeting including the election of a Board chairman. Two members of the Board had been nominated for the position, William Motter and Robert Gingerich. Following the nominations there was a motion that the vote be by written ballots, which motion was approved by voice vote.

The vote of each individual member was by secret written ballot. William Motter was elected chairman by a vote of 14 to 10. He took office and is currently serving a two-year term. All activities, procedures, discussions and motions of the Board occurred in public and in the presence of several news media personnel.

The issue presented for review, which appears to be one of first impression, is whether the Open Meetings Act (Ill. Rev. Stat. 1979, ch. 102, par. 41 et seq.) was violated by the Ogle County Board when it elected its chairman by secret written ballot. Section 1 of the Open Meetings Act (Ill. Rev. Stat. 1979, ch. 102, par. 41) states:

“It is the public policy of this State that the public commissions, committees and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of this Act that their actions be taken openly and that their deliberations be conducted openly.”

The provision of the statute which follows this statement of public policy offers greater specificity wherein it provides in relevant part in section 2:

“All meetings of any legislative 600 bodies of the 000 counties * * 0 which are supported in whole or in part by tax revenue, or which expend tax revenue shall be public meetings * e (Ill. Rev. Stat. 1979, ch. 102, par. 42.)

Thereafter follow numerous specific exceptions of which county board organizational meetings or election of officers is not included.

A secret ballot for the election of chairman of the county board is the antithesis of an open meeting even though the vote was conducted in the presence of the public. The chairman wields significant public and political power. The person to whom each of the representatives of the public delegates that power can be highly indicative to their voters and the public of the quality of their public service.

The respondent contends that the chairman of the board can be elected by secret ballot by all the voters under section 7 of “An Act relating to the composition and election of county boards * * °” (Ill. Rev. Stat., 1980 Supp., ch. 34, par. 837). We are asked to find an analogy between a general election of county board chairman by the voters at large and a secret ballot cast by the elected representatives. The analogy fails. If the Board desires to have its chairman elected at large by the public at an election it can pass the appropriate resolution pursuant to the new statute cited above. Until that issue is properly presented and approved, the board members stand as representatives of the district from which they were elected and are bound by the provisions of the Open Meetings Act.

The respondent indicated that its purpose in selecting a secret ballot was to avoid subsequent antagonism between the board members. The Board reasoned that its members could work more harmoniously if their differences as to choices for chairman were secret. However, this admirable goal ignores the principles of a representative democracy. The voters who elected these board members are no longer in a position to judge the competency of their representatives. The Attorney General of Illinois in 1975 addressed this problem. He stated in pertinent part:

“I understand that secret balloting serves to protect public officials from criticism and that this may have been the reason for the secret ballot in this case. However, public officials are subject to criticism for action they take in fulfilling their duties as public officials and anyone who undertakes a public office or membership on a public body should be aware that his actions will be subject to criticism. Anyone who is unwilling to subject himself to such criticism by the public should not accept public office or membership of a public board. The public has a right to know how their public officials and representatives vote on issues, not only so they may try to persuade them to change their position or congratulate them on actions they have taken, but also that they may have the necessary information to decide whether they want to retain that person in public office. Secret voting by members of public bodies, can only contribute to further deterioration of public confidence in government and undermine the very bases of representative democracy.” (1975 Ill. Op. Att’y Gen. 138-39.)

Although the precise issue in this case is one of first impression, concern over board elections by secret ballot was articulated as early as 1933. The Attorney General of Illinois in that year stated in relevant part:

* * If the board can secretly elect a chairman, they can take secret action on other matters and they are numerous, other than the appropriation of money. Of what avail is an open door to the public if the proceedings are secret. The eye can see, the ear can hear, but secrecy conceals all. It is no advantage to the citizen to see a member write a name secretly on a ballot unless he is privileged to read what is thereon written. If the vote were taken by whispering in tones so low the attending citizen could not hear, how would he know what was being done. If no record is made of how the individual members vote, of what avail is the statute providing for a meeting with open doors.” (1933 Ill. Op. Att’y Gen. 335.)

While the opinion of the Attorney General may not be binding on this court, it is persuasive. (Rogers Park Post No. 108 v. Brenza (1956), 8 Ill. 2d 286, 292, 134 N.E.2d 292; Long v. Long (1957), 15 Ill. App. 2d 276, 145 N.E.2d 509.) In the absence of judicial authority on point we choose to follow the policy considerations expressed by these two opinions.

Accordingly, we agree with the trial court’s conclusion that the secret ballot for the election of the Ogle County Board Chairman taken on December 1, 1980, was in violation of the public policy of this State as well as its statutory enactment under the Open Meetings Act (Ill. Rev. Stat. 1979, ch. 102, par. 41 et seq.). While the election was in violation of the law we need not invalidate it. The Open Meetings Act does not allow the court to invalidate official actions taken at proceedings held in a manner violative of the Act. This court in In re Organization of Byron Park District (1978), 67 Ill. App. 3d 61, 66, 385 N.E.2d 67, 71, stated:

“However, although the open meetings act provides for the issuance of a mandamus to compel meetings to be open and even provides criminal penalties, under some circumstances, for public office holders who refuse to comply with the act, nothing in the act or elsewhere, invalidates official actions taken at proceedings held in a manner violative of the open meetings act.”

See Board of Education v. County Board of School Trustees (1978), 60 Ill. App. 3d 415, 376 N.E.2d 1054.

We conclude that even though the election should not be invalidated public interest can still be served by a disclosure by the individual board members of their vote on December 1, 1980. In People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 531, 332 N.E.2d 649, 655, we stated:

“However, even where the relief sought in a petition for mandamus becomes moot it does not necessarily follow that the cause should be dismissed when the issues presented are of substantial public interest.”

In view of the foregoing considerations, the judgment of the Circuit Court of Ogle County is affirmed.

Affirmed.

SEIDENFELD, P. J„ and HOPF, J., concur.


author: Mr. JUSTICE NASH

text:
    ROBERT A. CHAPSKI, Plaintiff-Appellant, v. THE COPLEY PRESS et al., Defendants-Appellees.
    Second District
    No. 80-505
    Opinion filed October 16,1981.

      Van R. Richards, Jr., of Geister, Schnell, Richards and Brown, Chartered, and Robert A. Chapski, Ltd., both of Elgin, for appellant.
    Lambert M. Ochsenschlager and Wayne F. Wiler, both of Reid, Ochsenschlager, Murphy & Hupp, of Aurora, for appellees.
   Mr. JUSTICE NASH

delivered the opinion of the court:

Plaintiff, Robert A. Chapski, an attorney, brought this action to recover damages for alleged libel published by defendants, Copley Press, Inc.; The Daily Courier News; its editor and publisher, D. Ray Wilson; its executive editor, LeRoy Clemens; and a reporter, Michael Bailey.

The trial court dismissed the complaint finding that the innocent-construction rule applied to the newspaper articles in question and plaintiff appeals.

The series of newspaper articles upon which this action is based were published in the Daily Courier News from February 8, 1979, through January 25, 1980, and related to the death of two-year-old Kristie Hubbard as a result of child abuse. Plaintiff had represented the child’s mother, Kathleen Hubbard, in both juvenile and divorce proceedings in Kane County in which Mrs. Hubbard had been granted custody of the child. The newspaper articles described the court procedures prior to the death of the child and plaintiff’s role as an attorney in the case.

Plaintiff alleged in count I of his complaint that on September 14, 1978, while all of the interested parties were before the juvenile division of the circuit court, Judge Neil Mahoney entered an order returning custody of the child to Kathleen Hubbard. Subsequently, on September 21, plaintiff again appeared before Judge Mahoney, who then entered a written order confirming the order of September 14. Kathleen Hubbard had filed a petition for dissolution of marriage in Kane County on September 6, and plaintiff alleged that he was informed that her husband had filed a similar petition in the circuit of Cook County on September 12 in which he intended to seek custody of the minor child. On September 26, plaintiff obtained a “status quo order” of custody in the divorce action and on October 13, the parties, their attorneys and the minor child appeared in court and the child was examined for any marks or bruises; none were found and the orders granting custody to Kathleen Hubbard remained in effect from that date until February 2, 1979, when Kristie Hubbard died. Plaintiff further alleged that from October 13, 1978, until February 2, 1979, no further court proceedings were held concerning the custody of the child.

Plaintiff alleged that from February 8, 1979, through January 25, 1980, the defendants “seized upon this unfortunate set of circumstances to wrongfully and maliciously and with intent to defame and injure the plaintiff in his reputation, caused to be published in the aforementioned newspaper, false, defamatory, libelous articles and editorials 6 0 The allegedly libelous portions of 10 newspaper articles were set forth in each of the first 10 counts of the complaint, and full texts of the articles were appended to it as exhibits.

Count I of the complaint was directed to an article published on February 8, 1979, with the headline “Child custody battle sad as child’s death itself.” It characterized the September 21 hearing as “impromptu” and quoted an assistant public defender that “it’s my feeling that when an attorney comes in with a motion that will effect the status of the case, court procedures require proper notice to other parties.”

The article which formed the basis for count II was published February 9 and concerned plaintiff’s representation of Norman Platter, Kathleen Hubbard’s boyfriend, who was accused in the beating death of the child. The article noted that custody of Kristie Hubbard had previously been taken from her mother in August, reportedly because of abuse of the child by Platter, and that custody was returned to Kathleen Hubbard in “an unscheduled hearing in September.”

Count III was based on an article published February 11, 1979. It stated that based upon information supplied by plaintiff at “an unscheduled hearing” that the mother no longer lived with Platter, Judge Mahoney agreed to return the child to her without consulting the Department of Children and Family Services. The article also queried whether plaintiff knew of abuse of the child from the juvenile proceedings when he later appeared before Judge McCarthy, who in the mother’s divorce proceeding was deciding on the custody of the child, and whether plaintiff had a legal or moral responsibility to inform Judge McCarthy of the alleged abuse.

Count IV of the complaint was based on an article published February 16, 1979, and bore the headline, “Who’s to blame? Many questions in baby’s death.” It again referred to plaintiff’s appearance at “an unscheduled hearing” during which he informed the court that Mrs. Hubbard had moved out of the Platter residence. The article also referred to a custody hearing held in the divorce proceedings and noted that although local rules required four days notice before a hearing, plaintiff did not mail notice of the proceeding until three days prior to it. The article also contained a statement attributed to the husband’s attorney that he advised his client to seek local counsel because he felt someone was “going in the back door in Kane County.” Although the article stated that the husband’s attorney would not make any direct comment in reference to plaintiff, it quoted him as saying that in his opinion in custody cases a lawyer “has a responsibility to human life above that to his client”.

Count V of the complaint was based upon an article published February 18, 1979, which bore the headline “To clear the record * ° It purported to summarize the events reported in the previously published articles and noted that “Chapski did not mention to McCarthy the incident of physical abuse, the fact that DCFS was involved in the case, the fact that there were other court proceedings before Judge Mahoney, or the fact that there were criminal charges pending at that time against the mother and Platter. It is agree [sic] he had no legal requirement to do any of these things. Every lawyer contacted by me, though, said they would assume a moral obligation to do so.”

Count VI of the complaint was founded upon an article published February 25, 1979, which bore the headline, “Legal report card: F.” The excerpt reproduced in the complaint reads in its entirety:

“While no lawyer will publicly criticize anyone concerned with the case, five different lawyers have spoken to me privately, outlining their experiences with a shaky legal system that condones any lawyer who skirts the ethics of their profession.
‘This is the culmination of several years of these shenanigans,’ one lawyer told me.
‘This has been going on continually. Now, it’s gone too far, somebody’s dead,’ he said.”

Count VII of the complaint reproduced a portion of an article which appeared on February 28, 1979, wherein it was stated that “the child was returned in an unscheduled hearing before another judge a short time later. Several lawyers have questioned the propriety of that unscheduled hearing ° 0

Counts VIII, IX and X of the complaint were based upon articles published March 9, 1979, June 27, 1979, and September 30, 1979. The March 9 article noted that the Attorney Registration and Disciplinary Commission had acknowledged they were investigating a complaint about plaintiff’s conduct in the case and summarized the events which had been reported in the earlier articles. The June 27 and September 30 articles again referred to an ex parte hearing in September in which custody of the child had been returned to the mother based largely upon representations made by plaintiff as her attorney.

Plaintiff’s complaint further alleged that all of the aforementioned statements were false since the court had actually granted custody to his client on September 14, 1978, when all parties and their attorneys were present before the court. Plaintiff also alleged that as a result of the publication of these articles, a certain segment of the population formed “The concerned citizens for Kristies” and that this group “aided and abetted the defendants’ cause to defame [his] character and reputation 000 by contacting various state authorities.” Plaintiff further alleged that the Attorney Registration and Disciplinary Commission concluded that Judge Mahoney’s order of September 21, 1978, was merely a written confirmation of his earlier order and that plaintiff’s conduct had absolutely nothing to do with the child’s death. Plaintiff charged that instead of retracting their allegedly libelous statements after the Commission released its findings, they further libeled him by publishing false statements such as “the bar association asked for the investigation after several, area attorneys questioned the propriety of the legal proceedings * * Finally, plaintiff charged that the foregoing articles damaged his reputation, and he sought general and punitive damages of $3,500,000 in each count of the complaint.

Count XI of the complaint repeated the allegations of the other counts and charged defendants were guilty of a conspiracy to injure his good reputation by publishing the foregoing articles.

Defendants moved under sections 45 and 48 of the Civil Practice Act to strike and dismiss the complaint on the grounds, inter alia, the alleged defamatory publications were subject to an innocent construction and thus not actionable. The trial court agreed and noted that although the articles were highly critical of the court system and plaintiff’s conduct within that system, they did not charge plaintiff with any illegal act nor did they suggest he was incompetent. The court concluded that the articles were susceptible to an innocent construction since their main thrust was “directed to and critical of the court system as it relates to the proceedings involving the custody of the named child. References to plaintiff are in regard to alleged actions taken by plaintiff on behalf of his client within that court system * * * and of the manner in which plaintiff was permitted to represent the interests of his client because of the failing of the court system.”

A publication which prejudices a party in his profession is actionable per se. (Cooper v. Rockford Newspapers, Inc. (1977), 50 Ill. App. 3d 247, 248; McGuire v. Jankiewicz (1972), 8 Ill. App. 3d 319.) However, since 1962, Illinois courts have applied the innocent-construction rule to publications to determine first whether they must be given an injurious meaning or whether they may be harmlessly construed. As set forth by our supreme court in John v. Tribune Co. (1962), 24 Ill. 2d 437, cert, denied (1962), 371 U.S. 877, 9 L. Ed. 2d 114, 83 S. Ct. 148, the rule requires that a writing “is to be read as a whole and the words given their natural and obvious meaning, and requires that words allegedly libelous that are capable of being read innocently must be so read and declared nonactionable as a matter of law.” (24 Ill. 2d 437, 442.)* In addition to ascertaining whether a statement is defamatory, the rule is also to be applied in determining whether it refers to the plaintiff. (Levinson v. Time, Inc. (1980), 89 Ill. App. 3d 338; Vee See Construction Co. v. Jensen & Halstead, Ltd. (1979), 79 Ill. App. 3d 1084.) No general test has been devised for determining whether a statement is defamatory and each case must be decided according to its own facts. (Vee See Construction Co.; Galvin v. Gallagher (1980), 81 Ill. App. 3d 927.) The meaning of a statement is not to be determined by examining isolated phrases, but must be gathered from the context of the language of the publication as a whole, stripped of all innuendo. (Levinson v. Time, Inc.; Galvin v. Gallagher; Vee See Construction Co. v. Jensen & Halstead, Ltd.) The words are to be accorded their natural and obvious meaning (Levinson v. Time, Inc.), and must be read in their best possible sense. (Vee See Construction Co. v. Jensen & Halstead, Ltd.; Wexler v. Chicago Tribune Co. (1979), 69 Ill. App. 3d 610.) Whether language is susceptible to an innocent construction is a question of law to be decided by the court. If reached, it is a question of fact for the jury whether the statement was understood by its readers as defamatory. Troman v. Wood (1975), 62 Ill. 2d 184; Valentine v. North American Co. for Life & Health Insurance (1974), 60 Ill. 2d 168; Levinson v. Time, Inc.; Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345.

Plaintiff contends that the articles published by defendants charge him with a lack of moral or legal responsibility and integrity in the performance of his professional duties. When read as a whole, however, stripped of all innuendo, we must conclude each of the articles is susceptible to an innocent construction and therefore not actionable as a matter of law.

In applying the rule to the article upon which count I is based it is apparent that the characterization of the hearing as “impromptu” need not be understood as an accusation that plaintiff had acted improperly or was otherwise guilty of criminal activity. Taking the article as a whole and without innuendo, it can be considered as a criticism of the court system rather than plaintiff. With respect to the quote from an assistant public defender concerning notice, taken in context, it is critical of Judge Mahoney and not plaintiff. See Galvin v. Gallagher (1980), 81 Ill. App. 3d 927.

The article upon which count II is based merely notes that plaintiff represented .the person accused of abusing the child and that custody of the child had been returned to the mother in an “unscheduled hearing.” Not only is the characterization of the hearing as unscheduled susceptible to an innocent construction, the article does not refer to plaintiff in stating that the hearing was unscheduled.

When read in context, the article which forms the basis for count III is a criticism of the court system in general and not plaintiff. Although it states that the “two courts were played off against each other” and inquires whether plaintiff had a legal or moral responsibility to do certain things, it does not accuse him of any impropriety. Rather, the words are used in a figurative sense to demonstrate the writer’s personal disagreement with what occurred. (See Catalano v. Pechous (1980), 83 Ill. 2d 146; Belmonte v. Rubin (1979), 68 Ill. App. 3d 700.) While accusations of impropriety or criminal activity cast in terms of an opinion are not protected (Catalano v. Pechous), the language in question is not susceptible to such a construction.

In the article upon which count IV is founded, plaintiff is accused of giving improper notice to the husband in the divorce proceedings. This statement is susceptible to an innocent construction as it does not accuse plaintiff of deliberately failing to give proper notice so as to gain an unfair advantage. Moreover, in another part of the same article it is stated that plaintiff may not have known there was not proper notice. The reference in the article to the opinion of the husband’s attorney that he “felt someone was going in the back door in Kane County” does not require that it be applied to plaintiff; it is ambiguous and can be read to refer to persons other than him. (See Belmonte v. Rubin (1979), 68 Ill. App. 3d 700, 701 (“[m]y personal opinion is that they’re trying to steal the girls’ home”) (emphasis added); see also Galvin v. Gallagher (1980), 81 Ill. App. 3d 927.) In addition, the language can be considered as rhetorical hyperbole used not to accuse anyone of impropriety, but to convey the speaker’s opinion. See Greenbelt Cooperative Publishing Association v. Bresler (1970), 398 U.S. 6, 26 L. Ed. 2d 6, 90 S. Ct. 1537 (reference to plaintiff’s negotiating position as “blackmail”).

The article upon which count V is based is entitled, “To clear the record * * *” and when read in context also notes the plaintiff had no legal duty to inform the divorce court of the juvenile proceedings. The statement that plaintiff did not do so is not, therefore, actionable since plaintiff is not being accused of any illegality. While the article states that some lawyers would assume a moral obligation to so inform the court, it need not necessarily be interpreted to imply that plaintiff was wanting in integrity for failing to do so. See Galvin v. Gallagher (1980), 81 Ill. App. 3d 927; Belmonte v. Rubin (1979), 68 Ill. App. 3d 700.

The article upon which Count VI is based was entitled “Legal report card: F.” When read in context it is again a criticism of the legal system and not of plaintiff. The article notes that “[n]o matter how you cut it, the system failed in this case.” This and other statements in the article can be read as referring to persons other than plaintiff. While the article contains statements attributed to other attorneys critical of the events therein reported, it also states that those lawyers were not criticizing “anyone concerned with the case.” The headline “Legal report card: F,” although not particularly flattering, is clearly an opinion and is not therefore actionable in context. “Opinions and judgments of a party may be critical or harsh, or even abusive, but still not subject the author to liability.” (Galvin v. Gallagher (1980), 81 Ill. App. 3d 927, 930.) The law does not provide a remedy for “every expression of opinion touching on a person’s capabilities or qualifications ° * * no matter how much the complained of statement may injure the subject person in his own conception * * (Dauw v. Field Enterprises, Inc. (1979), 78 Ill. App. 3d 67, 71.) The reference in the article to “any lawyer who skirts the ethics of their profession” is susceptible to an innocent construction since the word “any” does not require an interpretation that it refers to plaintiff. (See Belmonte v. Rubin (1979), 68 Ill. App. 3d 700.) The phrases “skirts the ethics” and “shenanigans” need not be read as an accusation of impropriety. See Valentine v. North American Co. for Life & Health Insurance (1974), 60 Ill. 2d 168, 170 (“[h]e was a lousy agent” held not defamatory); compare McGuire v. Jankiewicz (1972), 8 Ill. App. 3d 319 (“you couldn’t have chosen a worse lawyer” held actionable).

The article upon which count VII is based refers to an “unscheduled hearing,” but as noted earlier this statement may be innocently construed. The article also notes that “several lawyers have questioned the propriety of that unscheduled hearing.” This statement can also be given a nondefamatory meaning since the reader would not need to take it as an accusation that anyone had done anything improper as the propriety of the hearing was merely questioned.

Plaintiff contends that the statement in the article which forms the basis for count VIII, i.e., that the Attorney Registration and Disciplinary Commission “acknowledged that they are investigating a complaint about [him],” is actionable because no complaint was ever filed and the statement was false. It is apparent, however, that plaintiff sees the word “complaint” in the strict legal sense; when so read the statement could be actionable since no formal charge was filed. Such an interpretation does not necessarily follow, however, since the term “complaint” need not always be given its technical, legal meaning. In fact, plaintiff acknowledges elsewhere in his complaint that the Attorney Registration and Disciplinary Commission was investigating his role in the case and, when read as a whole, the article can be construed to mean no more than this. See Springer v. Harwig (1981), 94 Ill. App. 3d 281.

In count IX plaintiff singled out a portion of an article which noted that the custody of the child was returned “at a hearing attended only by a judge and Kathy Hubbard’s lawyer, Robert Chapski * * As noted earlier, this statement is plainly susceptible to an innocent construction if innuendo is not applied.

A similar analysis applies to the article upon which count X is founded. There, the hearing was again referred to as “unscheduled.” The article also stated that the judge’s decision to return custody of the child to her mother was based “largely on representations made by Robert Chapski * * but it does not state that the representations were false or otherwise imply that anything improper occurred. Moreover, the first article published in the series on February 8, 1979, upon which count I was based, also refers to these representations and notes that they were true.

Count XI of the complaint alleged a conspiracy among defendants to injure plaintiff’s good name and reputation and cause him to be suspended or disbarred by publishing the series of allegedly libelous articles. Since the articles are susceptible to an innocent construction and are not actionable, a cause of action based upon a conspiracy to injure plaintiff’s reputation by publishing them must fail.

For these reasons, we find that the trial court correctly applied the innocent-construction rule in dismissing plaintiff’s complaint. Although plaintiff asserts that under Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735, the trial court could not “sweep the defendant-appellee’s libel under the legal rug of “innocent construction * * Newell is clearly distinguishable from the present case. There, a newspaper inaccurately reported a civil suit in charging the plaintiff with making a conscious decision to save his pet parrot from a fire in his home, rather than alerting a guest who was asleep upstairs who subsequently died. The complaint at issue in Newell was held to state a cause of action since the language was not susceptible to an innocent construction and the defendant abused the qualified privilege to report on judicial proceedings.

In view of the foregoing we conclude that the articles can be innocently construed and are therefore nonactionable as a matter of law. We do not reach and it is unnecessary for us to consider the other issues raised by the parties.

Accordingly, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

REINHARD and VAN DEUSEN, JJ„ concur.

       See Polelle, The Guilt of the “Innocent Construction Rule” in Illinois Defamation Law, 1 N. Ill. U. L. Rev. 181 (1981).