author: JUSTICE STOUDER JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICHARD WORTHINGTON, Defendant-Appellee.
    Third District
    No. 82 — 17
    Opinion filed August 31, 1982.
    HEIPLE, J., specially concurring.
    John A. Barra, State’s Attorney, of Peoria (Richard A. Roth, Assistant State’s Attorney, and John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Robert Agostinelli and Frank W. Ralph, both of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Richard Worthington, was ticketed and charged with nine violations of the Illinois Vehicle Code. They occurred within the Peoria city limits on April 7, 1981. The cause was prosecuted in the circuit court of Peoria County by an assistant Peoria city attorney. Except for one interim order captioned “The People of the State of Illinois (City of Peoria), Plaintiff,” all other papers filed in the cause, including the Uniform Illinois Traffic Complaint, were captioned, “City of Peoria, Plaintiff.” Following a bench trial, the defendant was found guilty of several of the charges. He thereafter filed a motion for new trial or reconsideration of the findings, arguing that the evidence was insufficient to sustain the findings of guilty and that the entire proceedings were a nullity because the city of Peoria was incorrectly denominated as plaintiff. At the subsequent hearing, the circuit court denied relief on the first ground, but agreed that the case was incorrectly captioned, thus rendering the proceedings null. The court affirmed its ruling in a motion to reconsider. There the court found that the defendant always knew he was charged with and tried for State law violations, that he probably was aware he was being prosecuted by the Peoria city attorney, that the State’s attorney gave the city attorney written authority to prosecute violations of the Illinois Vehicle Code occurring within the city limits, that the assistant city attorney who tried the cause had checked the wrong box in the form complaint when denominating the plaintiff, and that the city attorney never orally referred to the city as the plaintiff. Nevertheless, after reading City of O’Fallon v. Reynolds (1971), 2 Ill. App. 3d 712, 276 N.E.2d 772, and People v. Koetzle (1976), 40 Ill. App. 3d 577, 352 N.E.2d 433, the court concluded that the city could prosecute State traffic law violations but that it must caption the cause as “The People of the State of Illinois, Plaintiff.” The failure to do so here nullified the findings of guilt, the circuit court concluded and ordered the defendant to be discharged and the charges to be dismissed. The State, by the city of Peoria, appeals from this order, arguing that the city can prosecute State traffic law violations in its own name.

We find that the city may prosecute State traffic law violations, when lawfully authorized, and may use its own name in the caption.

In City of O’Fallon v. Reynolds (1971), 2 Ill. App. 3d 712, 276, N.E.2d 772, the court ruled that a municipality was not authorized to prosecute State traffic law violations occurring within municipal limits. (See also City of Rockford v. Watson (1969), 108 Ill. App. 2d 146, 246 N.E.2d 458.) The basis of this ruling was section 16 — 102 of the Illinois Vehicle Code, which provided: “[t]he State’s Attorney of the county in which the violation occurs shall prosecute the violator.” (Ill. Rev. Stat. 1969, ch. 951/2, par. 16 — 102.) In 1974, the General Assembly amended this rule, which now reads in part: “The State’s Attorney of the county in which the violation occurs shall prosecute all violations except when the violation occurs within the corporate limits of a municipality, the municipal attorney may prosecute if written permission to do so is obtained from the State’s Attorney.” (Ill. Rev. Stat. 1979, ch. 951/2, par. 16 — 102.) Thus, when properly authorized, a municipality may prosecute Illinois Vehicle Code violations. The circuit court conceded this proposition, but held that when a municipality is so authorized, its complaint must be entitled, “The People of the State of Illinois, Plaintiff.” Under the circumstances presented here, we cannot agree with this holding. Contrary to the defendant’s contention, neither the express language of the current authorizing statute nor a fair inference thereof mandates the prosecuting municipality to denominate its charging instrument with the caption, “The People of the State of Illinois, Plaintiff.”

Moreover, any variance between the caption and the body of the charging instrument was harmless given the circumstances here. As the supreme court said in People v. Sirinsky (1970), 47 Ill. 2d 183, 187, 265 N.E.2d 505, 507: “[T]he caption of a charging pleading, whether an indictment, information or a complaint, forms no part of the pleading and defects in the caption will not invalidate it. [Citations.] It is the body of the indictment information or complaint, rather than the caption, which must state the elements of the offense with which the defendant is charged. [Citation.] Where the caption varies from the body of the pleading, as here, it will be the body that controls.” In Sirinsky, the defendant was charged with a violation of State traffic law which occurred in Evanston. The arresting officer checked the box in the citation marked “The City of Evanston” as the plaintiff, instead of “The People of the State of Illinois.” As he was required to do under section 16 — 102, the State’s Attorney prosecuted the State law charges. He later amended the caption to read, “The People of the State of Illinois, Plaintiff.” The supreme court affirmed the defendant’s conviction, noting that the body of the complaint adequately informed the defendant of the charges against him and their source and adding that the variance was harmless. The facts here are nearly identical to Sirinsky in their relevant parts. First, in both cases an authorized party prosecuted the State traffic law violations. Second, in both cases the body of the charging instrument made unequivocally clear that the defendant was charged with violations of the Illinois Vehicle Code by referring to the specific section number of the alleged violation. The fact that the caption was amended in Sirinsky is immaterial given the insignificant role the caption plays in the charging instrument.

The defendant points to two cases decided under the current authorizing section which seem to hold that a municipality must bring a State traffic law prosecution in the name of The People of the State of Illinois. In Village of Hoffman Estates v. Spychalski (1975), 33 Ill. App. 3d 83, 85, 337 N.E.2d 463, 465, the First District examined section 16 — 102 and declared: “[I]t is clear from a reading of section 16— 102 that the prosecution for an Illinois Vehicle Code violation must be in the name of the People of the State of Illinois; and that the municipality may prosecute only with the written consent of the State’s Attorney.” (See also People v. Koetzle (1976), 40 Ill. App. 3d 577, 352 N.E.2d 433.) But in Spychalski, as well as in Koetzle, the municipality had failed to establish that the State’s Attorney had granted written permission to prosecute. Thus, any further comment on the requisites of the caption were mere obiter dictum, since the issue of a lawful delegation of authority to prosecute necessarily precedes any discussion of the form of the caption. Moreover, as we have said above, we disagree that a plain reading of section 16 — 102 requires such a caption. Instead, we believe the rule in Sirinsky controls. Where the defendant is fully aware of the nature and source of the criminal charges and the plaintiff is lawfully authorized to prosecute the cause, we choose not to follow the nonbinding advice of Spychalski and Koetzle, which we find to be extremely prodigal of scarce judicial resources without adding a scintilla of protection to the defendant.

Accordingly, we reverse the order of the circuit court of Peoria County, order the judgments of conviction to be reentered as originally determined by the circuit court, and remand for sentencing.

Order reversed, judgments reinstated, and cause remanded.

SCOTT, J., concurs.

JUSTICE HEIPLE,

specially concurring:

I concur with the decision reversing the trial judge in this case and would only add that this is the fourth case that I have commented on involving this same judge and his erroneous rulings in traffic cases in the space of seven months. The earlier cases are: People v. White (1982), 102 Ill. App. 3d 1206 (Rule 23 order); People v. Williams (1982), 108 Ill. App. 3d 219; People v. Batchelder (1982), 107 Ill. App. 3d 295. The pattern of ruling with the defense for erroneous reasons in traffic cases continues.


source: Caselaw Access Project

author: JUSTICE HEIPLE JUSTICE BARRY,

license: Public Domain

text:
    FRANCES E. WILLIAMS, Plaintiff-Appellant, v. WILLIAM A. WILLIAMS, Defendant-Appellee.—(UNITED SECURITY INSURANCE COMPANY, Petitioner-Appellee.)
    Third District
    No. 81 — 87
    Opinion filed August 27, 1982.
    BARRY, J., dissenting.
    Raymond J. Conklin, of Rock Island, for appellant.
    Dennis R. Fox, of Califf, Harper, Fox & Dailey, of Moline, for appellee United Security Insurance Company.
    Dorothea O’Dean and Stewart R. Winstein, both of Winstein, Kavensky, Wallace & Doughty, of Rock Island, for appellee William A. Williams.
   JUSTICE HEIPLE

delivered the opinion of the court:

On December 3, 1980, Frances Williams, the plaintiff, sued her husband, William Williams, the defendant, for negligence. On July 7, 1979, Mrs. Williams was a passenger in a car operated by Mr. Williams. Allegedly, he drove his car carelessly over the center line of Ko-loa Springs Road in Rock Island County, crashing into an oncoming vehicle. Due to the collision, Mrs. Williams suffered serious personal injuries. Mr. Williams did not answer the complaint but, through counsel furnished by his insurance carrier, filed a motion to dismiss it. (Ill. Rev. Stat. 1979, ch. 110, par. 48.) The trial judge granted the motion, certifying his order for immediate appeal. (73 Ill. 2d R. 304(a).) Mrs. Williams now seeks review.

Plaintiff has cloaked the issue of this appeal in a procedural guise, maintaining the trial judge erred in granting defendant’s motion to dismiss her complaint. She contends a dispute exists between Mr. Williams and his insurer as to whether her husband personally chose to assert the defense of interspousal immunity. She claims that the defense of interspousal immunity is one that is personal to the husband; that it cannot be asserted in his behalf by his legal counsel, who was hired by his insurance carrier to represent him. To underscore this point, the husband, himself, has, at the appellate level, retained separate and personal counsel who has intervened in this appeal so as to advise this court beyond peradventure that the husband not only has no objection to being sued by his wife but that he positively welcomes it. Notwithstanding his purchase of insurance to defend him in court and to pay judgments entered against him, he abjures this too successful defense which resulted in the dismissal of the claim. What he is saying, in effect, is that he doesn’t want the claim defended; he wants it paid! The husband’s insurance carrier and counsel retained by it to defend the husband understandably have a different view.

This lawsuit, thus, has all the earmarks of a collusive undertaking. Black’s Law Dictionary defines collusion as a deceitful agreement or compact between two or more persons, for the one party to bring an action against the other for some evil purpose, as to defraud a third party of his right.

The wife and husband in concert are attempting to define the issue in this case so as to avoid the operation of the rights-of-married-women act (Ill. Rev. Stat. 1979, ch. 40, par. 1001 et seq.), which bars a personal injury action between spouses for torts occurring during their marriage. To sidestep this law, they assert that the defense is purely personal to the husband; that it cannot be asserted in his behalf by hired insurance counsel. Such assertion is a sham issue. It might equally be argued that the statute of limitations, release and satisfaction and lack of personal jurisdiction are personal defenses. Defenses they are. Personal they are not. When the husband contracted to purchase liability insurance for the purpose of defending and paying claims, he bound himself to cooperate in the defense of litigation against him. His assertion in this appeal would appear to violate the cooperation clause of his insurance contract.

The only real issue in this case is whether the rights-of-married-women act bars a personal injury action between spouses for torts occurring during their marriage. Because it does, the trial court is affirmed.

At common law a wife had no independent legal status apart from her husband. She could not sue or be sued in her own name since she had no separate legal persona. (Love v. Moynehan (1855), 16 Ill. 277.) Because of this feudal conception of a wife’s status before the law, a husband was held to be immune from suit. This immunity did not merely arise from the fact the wife had no remedy against her husband for a wrong the latter committed against her. Because marriage was conceived as a unit, and for the most part the husband was the unit, whatever rights of action the wife did possess were only enforci-ble by her husband. Thus, the immunity evolved from the fact of the marriage relationship. The upshot being that a husband could not sue himself. Welch v. Davis (1951), 410 Ill. 130, 132-33.

This common law view had an abbreviated history in Illinois. In 1861, the Illinois legislature passed the married woman’s act. (Ill. Laws 1861, par. 143, sec. 1.) In sum, this legislation provided that a married woman could own, acquire, and convey property in her own name and do whatever necessary to protect such property. This included maintaining lawsuits against others concerning such property. By enacting the husband-and-wife act in 1874, these rights were broadened considerably. (Ill. Rev. Stat. 1874, ch. 68, par. 1 et seq.) Thus, a wife could: make contracts and incur liabilities to the same extent as an unmarried woman; commit and be solely responsible for tortious acts apart from her husband; and, sue her husband where he wrongfully converted her own separate property. (E.g., Johnson v. Johnson (1926), 239 Ill. App. 417.) This act, however, was mum on whether a married woman could sue her husband for torts committed against her by her husband during their marriage.

Marjorie Brandt brought that very question before the Illinois Supreme Court. (Brandt v. Keller (1952), 413 Ill. 503.) Mrs. Brandt and her husband, Joseph Keller, were estranged. They met to discuss divorce arrangements. While a passenger in Mr. Keller’s automobile, Mr. Keller collided with another automobile. Mrs. Brandt suffered serious injuries. She filed a complaint against Mr. Keller, claiming his operation of the car was done in a wilful and wanton manner so as to injure her. Mr. Keller’s motion to dismiss his wife’s complaint was granted, the court holding he was immune from suit by his wife.

Although acknowledging the absence of any legislative authority for their action, the supreme court (over dissent) reversed. Essentially, it was held the husband-and-wife act of 1874 abrogated a husband’s common law immunity from suit. Opting for what was perceived as the judicial trend, the supreme court felt the statute implied the right for women to institute any type of legal proceeding against anybody including their husbands. A liberal construction was fashioned to “effectuate the manifest intention of the legislature” which was “to establish the separate identity of a married woman in all litigation.” (Brandt v. Keller (1952), 413 Ill. 503, 513.) Hence, a cause of action was judicially created, as a matter of statutory construction, so a wife could sue her spouse for torts he committed against her during their marriage.

The General Assembly’s reaction to Brandt was swift, total, and opposite. The very next session it amended the 1874 act by adding the proviso that “neither husband nor wife may sue the other for a tort to the person committed during coverture.” (Ill. Rev. Stat. 1953, ch. 68, par 1.) No committee hearings on this amendment appear in the legal literature. It might be argued that such revision was designed to reinstate the common law rule which Brandt sought to put to rest. It is quite obvious from the plain language of the amendment that it was intended to abolish any belief that a wife could sue her husband for personal torts committed during their marriage.

In Heckendorn v. First National Bank (1960), 19 Ill. 2d 190, the amended version of the statute was scrutinized. Mrs. Heckendorn sued the administrator of her deceased husband’s estate for personal injuries resulting from the alleged wilful misconduct of her husband during their marriage. After examining the common law, the husband-and-wife act, Brandt, and the amendment, the supreme court declared:

“The legislature created a statutory disability during the lifetime of the parties. Its intent was to prevent a cause of action from coming into being. If a cause of action could not exist in favor of the wife and against the tort-feasor husband, it could not survive his death. We find nothing in the language of the proviso to justify the anomalous conclusion that the existence of a cause of action between husband and wife is entirely dependent on the fortuitous event of the death of the spouse. We therefore conclude that the proviso of 1953 was intended to bar the present action.” (19 Ill. 2d 190, 193.)

The supreme court went on to uphold the statute under the Illinois Constitution, as well as a challenge on Federal due process grounds. (Compare with Tyrken v. Tyrken (1978), 63 Ill. App. 3d 199, 202-03 (1970 Illinois Constitution), and Steffa v. Stanley (1976), 39 Ill. App. 3d 915, 917-18 (Illinois and Federal equal protection clauses).) The supreme court concluded the Brandt holding which supplanted the common law rule was superseded when the Illinois legislature enacted the 1953 amendment. (Heckendorn v. First National Bank (1960), 19 Ill. 2d 190, 195.) This holding has been consistently followed. (Wartell v. Formusa (1966), 34 Ill. 2d 57, 60; accord, Herget National Bank v. Berardi (1976), 64 Ill. 2d 467, 471.) All these cases make clear that a cause of action does not exist between spouses for personal torts they commit against one another during their marriage.

Plaintiff says her complaint should not be dismissed since her husband, not the insurer, is entitled to assert the personal defense of in-terspousal immunity. She claims she has a cause of action and is thus entitled to a remedy. Allstate Insurance Co. v. Elkins (1979), 77 Ill. 2d 384.

The issue in Elkins was whether an insured wife, who could not recover damages from her tortfeasor husband because of inter-spousal immunity, was still “*** legally entitled to recover ***” (e.g., Ill. Rev. Stat. 1979, ch. 73, par. 755a) from him under the uninsured motorist contract of her husband’s insurance policy. But such an action is not the same cause which Mrs. Williams seeks to litigate. (Annot., 73 A.L.R.Sd 632, 649-56 (1976).) In Elkins, interspousal immunity was held not to extinguish Mrs. Elkins' claim since her recovery was premised on the uninsured motorist contract in the insurance policy. Contrariwise, our supreme court has stated unequivocally that our rights-of-married-women act enables interspousal immunity to prevent a cause of action from coming into being where a spouse sues another for personal torts during the marriage. (Heckendorn v. First National Bank (1960), 19 Ill. 2d 190, 193.) Thus, interspousal immunity is not merely a defense, but a statutory disability. And, such does not merely address the enforcibility of a remedy, but denotes that a wife or a husband, as the case may be, is not entitled to prosecute a cause of action against the other for personal torts committed between them during the marriage. (See Wilhelm v. Universal Underwriters Insurance Co. (1978), 60 Ill. App. 3d 894, 900; Note, Uninsured Motorist Coverage and Interspousal Immunity, 57 Chi. — Kent L. Rev. 297 (1981).) Consequently, the rationale in Elkins is not applicable to the cause at bar. It is significant that in Elkins the majority opinion neither addresses nor overrules Heckendorn and its progeny.

Various reasons sound from different quarters for discarding the notion of interspousal immunity. (Prosser, Torts sec. 122, at 859-64 (4th ed. 1971); Annot., 92 A.L.R.3d 901, 906, 910 (1979); Note, Interspousal Immunity — Time for a Reappraisal, 27 Ohio St. L.J. 550 (1966).) The common law notion of the marital unity of husband and wife is a concept at odds with our present statutory view of marriage, which, as judically interpreted, incorporates a partnership theory of marriage. (In re Marriage of Komnick (1981), 84 Ill. 2d 89, 94.) On the other hand, a persuasive argument can be advanced that the concept of interspousal immunity prevents collusive litigation between spouses to bilk insurance companies. The debate continues. In view of our statute, it is not our job to evaluate the merits or shortcomings of these competing arguments. The fact remains that interspousal immunity is a constitutional enactment of our State’s public policy. (Heckendorn v. First National Bank (1960), 19 Ill. 2d 190, 195.) As such, it is for the Illinois General Assembly, not us, to determine whether such immunity retains continuing vitality and significance for Illinois citizens. We have no authority to amend the statute by judicial fiat.

Mrs. Williams’ complaint was properly dismissed. The defendant’s insurer can invoke Mr. Williams’ statutory immunity from suit for plaintiff’s claim for damages. Mrs. Williams’ cause of action does not arise.

For the reasons stated, the order of the Rock Island circuit court dismissing plaintiff’s claim with prejudice is hereby affirmed.

Affirmed.

SCOTT, P. J., concurs.

JUSTICE BARRY,

dissenting:

The sole issue on appeal is whether the trial court committed error in granting the defendant’s motion to dismiss. The majority chooses to ignore this issue simply by stating that the plaintiff-appellant “has cloaked the issue of this appeal in a procedural guise,” and has rewritten the issue to decide whether the statutory interspousal immunity in Illinois is an absolute bar to the plaintiffs cause of action. That issue was decided by the supreme court in Allstate Insurance Co. v. Elkins (1979), 77 Ill. 2d 384, 396 N.E.2d 528, in a split 5 to 2 opinion. By my view, the majority today has decided to overrule the Elkins majority. In order to support the decision of the trial court in this case, the majority adopts the dissenting opinion in Elkins and declares that interspousal immunity is not a personal defense. The Elkins majority opinion plainly says otherwise. Interspousal “immunity *** like a defense based upon the statute of limitations can be waived by the defendant spouse.” 77 Ill. 2d 384, 390, 396 N.E.2d 528, 531. See also Soedler v. Soedler (1980), 89 Ill. App. 3d 74, 75-76, 411 N.E.2d 547, 548: “[I]n *** Elkins *** the Illinois Supreme Court held that the immunity established by the 1953 amendment did not bar suit, but rather that it provided the tortfeasor spouse with a defense, that of immunity, which could be raised as a defense and which could also be waived.”

Notwithstanding the majority’s caveat that “we have no authority to amend the interspousal immunity statute by judicial fiat,” I feel constrained to note that neither does this court have authority to overrule a decision of the Illinois Supreme Court. (Vinke v. Artim Transportation System, Inc. (1980), 87 Ill. App. 3d 400, 408 N.E.2d 1112.) With all due respect, I dissent. I would reverse the order of the trial court.

On December 3, 1980, plaintiff filed her complaint alleging that she had suffered personal injuries arising out of an automobile accident in which she was a passenger in an automobile negligently operated by the defendant. Counsel for the defendant filed a motion to dismiss, alleging that Mrs. Williams’ cause of action is barred by section 1 et seq. of the Illinois married women’s act (Ill. Rev. Stat. 1979, ch. 40, par. 1001 et seq.) inasmuch as the parties were married at the time of the accident and the plaintiff/wife’s cause of action was premised on the defendant/husband’s alleged negligence. Attached to the motion was an affidavit, signed by Mr. Williams, in which he stated: (1) that Frances E. Williams, plaintiff, is his wife; (2) that they were married on December 24, 1968, and that they have since resided in Illinois; and (3) that they were husband and wife on July 7, 1979, the date of the accident.

A hearing on defendant’s motion was held on January 26, 1981. At the hearing, plaintiff argued that interspousal immunity under section 1 is a personal defense to Mr. Williams which may be asserted or waived only at the discretion of the defendant. She further argued that her husband was being represented by counsel selected by his insurer, United Security Insurance Company. Under these circumstances, the argument continued, it could not be assumed on the basis of the pleadings, including the motion to dismiss, that a decision to assert the defense of interspousal immunity was in fact made by defense counsel in the interest of representing the defendant/husband as opposed to representing the insurer, United Security, who had hired counsel.

Defense counsel responded to this argument by observing that pleadings in this case did not indicate that defense counsel for Mr. Williams represented anyone other than the defendant himself; defense counsel had raised the defense on behalf of his client, Mr. Williams; the defense, thus asserted, barred recovery by Mrs. Williams; and, therefore, defendant was entitled to dismissal as a matter of law. The trial court thereafter granted the motion to dismiss with prejudice and contemporaneously granted the plaintiff leave to file an affidavit and a copy of the insurance policy for consideration of plaintiff’s argument on appeal. The affidavit and the insurance policy were filed in the trial court on February 17, 1981, and are properly included in the record on appeal. They support the allegations made by plaintiff at the hearing on defendant’s motion in that they raise issues about defense counsel’s authority to assert the immunity defense.

The defendant’s motion was filed under section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48), on the basis that the doctrine of interspousal immunity bars the plaintiff’s claim. Section 48 confers to the trial court authority to grant or deny a motion to dismiss. Specifically, section 48(3) reads as follows:

“If, upon the hearing of the motion, the opposite party presents affidavits or other proof denying the facts alleged or establishing facts obviating the grounds of defect, the court may hear and determine the same and may grant or deny the motion. If a material and genuine disputed question of fact is raised the court may decide the motion upon the affidavits and evidence offered by the parties, or may deny the motion without prejudice to the right to raise the subject matter of the motion by answer and shall so deny it if the action is one in which a party is entitled to a trial by jury and a jury demand has been filed by the opposite party in apt time.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 110, par. 48(3).

In the present case, the plaintiff failed to present affidavits or other proof to obviate the defendant’s asserted grounds for dismissal prior to the hearing on the motion to dismiss. Instead, plaintiff’s counsel alleged at the hearing that there were unresolved issues (1) regarding whether or not the defendant has personally asserted the immunity defense to his wife’s claim, and (2) regarding whether a conflict of interests existed between the defendant and his attorney. Given these facts, it is apparent that the second — rather than the first — sentence of section 48(3) controls the disposition of this case.

The threshold inquiry in ruling on the motion to dismiss under section 48(3) is whether a material and genuine disputed question of fact has been raised. Plaintiff’s first contention on appeal is that in-terspousal immunity asserted by the insurer will not bar her claim. The defendant-insurer contends that the doctrine of interspousal immunity (Ill. Rev. Stat. 1979, ch. 40, par. 1001) is an absolute bar to plaintiffs negligence cause of action against her husband and that the issue raised by the plaintiff at the hearing, and reiterated in her post-hearing affidavit, is not material. Recent developments in Illinois case law lead to the conclusion that interspousal immunity is not an absolute bar to plaintiff’s cause.

The supreme court, as aforesaid, held in Elkins that interspousal immunity can be waived by the defendant spouse. (Allstate Insurance Co. v. Elkins (1979), 77 Ill. 2d 384, 390, 396 N.E.2d 528, 531.) In Elkins, Mrs. Elkins was injured while riding in an automobile driven by her husband. She filed a claim under the uninsured motorist provision of her husband’s insurance policy. (The policy specifically excluded claims for personal injuries resulting to members residing in the same household as the insured.) While Mrs. Elkins’ claim was pending arbitration, Allstate, her husband’s insurer, filed suit for declaratory judgment in the circuit court seeking an adjudication that interspousal immunity barred Mrs. Elkins’ recovery. The trial court granted Allstate the relief sought. Both the appellate court and Illinois Supreme Court, however, disagreed with the trial court, and held that interspousal immunity is personal to the husband and wife and cannot be raised by a third party. Accordingly, Allstate’s assertion of interspousal immunity was ineffectual as a defense to Mrs. Elkins’ claim. Allstate Insurance Co. v. Elkins (1978), 63 Ill. App. 3d 62, 65-66, 381 N.E.2d 1, 4; 77 Ill. 2d 384, 390, 396 N.E.2d 528, 531.

The insurer in the present case argued that Elkins is not controlling precedent because the claim in Elkins was filed under the uninsured motorist provision of an automobile insurance policy and was directed against the insurer rather than directly against the insured spouse. I find these distinguishing factors legally insignificant. Both cases involved contractual obligations between an insurance company and the defendant-spouse. In both cases the underlying action giving rise to the insurer’s duty to pay sounded in negligence. And in both cases the insurer attempted to assert a defense personal to the insured spouse which was not available per se to the insurer.

The Elkins court specifically stated that “the effect of the [statute conferring interspousal immunity] was not to destroy the cause of action of the injured spouse.” Instead, the statute confers immunity on the tortfeasor spouse which may be asserted or waived depending on whether the tortfeasor spouse elects to avoid the injured spouse’s recovery on an otherwise valid claim. Because of the personal nature of the defense, it is incumbent on the insurer, upon the plaintiffs challenge, to show that the defendant’s counsel’s assertion of inter-spousal immunity was made with the defendant/insured’s knowledgeable consent.

The trial court in the present case made no inquiry into Mr. Williams’ personal participation in asserting the defense. Accordingly, it would appear that the allegations made by the plaintiff at the hearing and in the post-hearing affidavit raised a material and genuine disputed question of fact — specifically, did Mr. Williams personally assert the defense; or was the defense, in fact, asserted by his counsel without Mr. Williams’ knowledgeable consent as claimed by Mr. Williams in the trial court.

The majority herein attempts to analogize the instant case to Heckendorn v. First National Bank (1960), 19 Ill. 2d 190, 166 N.E.2d 571, and its progeny, disregarding the realities of modern society and the Elkins majority opinion which in my view clearly controls the outcome of the instant litigation. Moreover, the majority here confused the issue in Heckendorn and Wartell v. Formusa (1966), 34 Ill. 2d 57, 213 N.E.2d 544, with the narrow issue presented in Elkins and the instant case, i.e., whether interspousal immunity is absolute or personal to the tortfeasor spouse.

In my opinion, Heckendorn and its progeny are not sufficiently on point to contribute to the resolution of the present case. The issue before the Heckendorn and Wartell courts was simply whether one spouse could sue the estate of the other, deceased spouse. The courts consistently held that if statutory interspousal immunity, asserted as a defense by the defendant-spouse prior to the defendant spouse’s death, would have barred the plaintiff-spouse’s action, then it would also bar an action commenced after the defendant spouse’s death for a tort which had been committed during the parties’ marriage. The same interspousal immunity defense available to the defendant-spouse during his lifetime was thus determined to be an effective defense if asserted by the personal representative of the deceased • defendant-spouse’s estate. (Herget National Bank v. Berardi (1976), 64 Ill. 2d 467, 356 N.E.2d 529, adds no support to the majority’s position since the wrongful death action advanced therein by the personal representative of the wife’s estate sought not to recover benefits on behalf of the deceased wife herself, but rather benefits were sought on behalf of surviving children.)

The general rule announced in Heckendorn and Wartell, lacking any evidence that the executor did not, in fact, assert the interspousal immunity defense personally in his capacity as representative of the deceased, is unaffected by Elkins. Just as the defendant-spouse himself, while alive, might desire to protect his estate from his spouse’s tort claims, so it is eminently reasonable that the personal representative of the deceased defendant-spouse’s estate may wish to protect estate funds from claims in tort advanced by the surviving spouse. In neither Heckendorn nor Wartell was the court asked to decide whether the defense of interspousal immunity had in fact been asserted by the personal representative, as opposed to some interested third party, such as Allstate in Elkins and United Security in the case before this court.

I find the Second District’s recent opinion in Wirth v. City of Highland Park (1981), 102 Ill. App. 3d 1074, 430 N.E.2d 236, instructive with regard to the viability of the doctrine of interspousal immunity since Elkins. In Wirth, the court was asked to determine whether, after Elkins, a third party (a co-tortfeasor) could maintain a cause of action for contribution from the plaintiff’s husband even though the plaintiff was barred, by her husband’s assertion of inter-spousal immunity, from maintaining a direct action against him. After a comprehensive review of the history, development and recent erosion of the doctrine of interspousal immunity, the court determined that a third-party suit for contribution, as a matter of public policy, was not barred by the statutory defense of interspousal immunity. In reaching its conclusion, the court reasoned that inasmuch as the inter-spousal immunity statute is a procedural bar, rather than a bar to the plaintiff-spouse’s substantive cause of action, it would not debar a third-party complainant from recovering contribution from the third-party defendant-spouse.

The obvious effect of the third party’s claim in Wirth is to permit the plaintiff-spouse to recover damages from the defendant-spouse because of the fortuity that a co-tortfeasor is involved in the action. Applying the Wirth court’s reasoning to the facts of the instant case, it would appear that if Mrs. Williams were successful in an action against a co-tortfeasor (e.g., operator of the vehicle with which the Williams’ car collided), then interspousal immunity would not be available as a defense (whether asserted by Mr. Williams personally or by United Security) against the co-tortfeasor’s suit for contribution.

While the instant case does not at this point involve a co-tort-feasor and the issue of contribution, the Wirth opinion clearly recognized that the modern tort trend with respect to interspousal immunity is to dilute the doctrine so as to avoid its harsh results. In Illinois this was achieved in Elkins by interpreting the statutory defense as personal and procedural, rather than substantive as had been done in Heckendorn. (Wirth v. City of Highland Park (1981), 102 Ill. App. 3d 1074, 1077, 430 N.E.2d 236, 238-39; accord, Larson v. Buschkamp (1982), 105 Ill. App. 3d 965, 969, 435 N.E.2d 221, 224 (doctrine of parent-child tort immunity held to constitute a substantive bar neither to action between parent and child nor to action by third party for contribution); Farmers Insurance Group v. Nudi (1982), 108 Ill. App. 3d 151, 153 (interspousal immunity “merely precludes enforcement of a remedy. Procedural immunity is personal to the spouse and does not inure to the benefit of third parties”).) In my opinion, the trend represented by Elkins, Wirth, Larson and Nudi is entirely consistent with, and advances, the public policy of Illinois, which is to encourage lasting marital/family relationships, by removing legal disabilities which otherwise tend to place artificial burdens on the marriage contract and the family unit. In contrast to this consistent, modern trend, the majority herein, by blatantly refusing to acknowledge the authority of binding precedent, has achieved the following anomaly in this district: one spouse may recover from the other’s automobile insurance company under an uninsured motorist clause when the insurance company attempts to assert interspousal immunity as a defense so long as the defendant-spouse personally does not (Allstate Insurance Co. v. Elkins (1979), 77 Ill. 2d 384, 396 N.E.2d 528); however, one spouse may not recover from the other’s insurance company under general coverage provisions when the insurance company asserts interspousal immunity as a defense to the injured spouse’s cause of action even though the defendant spouse denies having personally authorized the use of such defense (the majority opinion in this case). The law should never tolerate such illogic.

Plaintiff’s second contention in this appeal is that there exists a material and genuine question of fact as to whether defendant’s counsel had a conflict of interests. It is clear in Illinois that where a conflict of interests exists between the insurer and the insured, the insurer has a duty to offer to decline to defend its insured. (Murphy v. Urso (1981), 88 Ill. 2d 444, 451-52, 430 N.E.2d 1079, 1082 (citing Thornton v. Paul (1978), 74 Ill. 2d 132, 152, 384 N.E.2d 335, 343; Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 198-99, 355 N.E.2d 24, 31).) “Instead of participating in the defense itself, the insurer must pay the costs of independent counsel for the insured.” Murphy v. Urso (1981), 88 Ill. 2d 444, 452, 430 N.E.2d 1079, 1082.

In the present case, the insurer does not deny plaintiff’s allegations that the counsel representing the defendant/husband in the trial court was selected by the insurer. It is obvious to me that in a normal harmonious marital relationship, one spouse’s interest in the other spouse’s recovery of insurance funds to compensate for personal injuries would usually be at odds with the insurer’s interest in avoiding paying claims filed against the insured. Since the trial court did not address Mrs. Williams’ contentions that her husband had not waived his attorney’s apparent conflict of interests after full and frank disclosure (see Rogers v. Robson, Masters, Ryan, Brumund and Belom (1979), 74 Ill. App. 3d 467, 392 N.E.2d 1365, aff’d (1980), 81 Ill. 2d 201, 407 N.E.2d 47), it appears without question that a material and genuine disputed question of fact on this issue was raised at the hearing and left unresolved as well.

On appeal, United Security, the insurer, also argues that, notwithstanding any conflict of interests or the supreme court’s Elkins decision, the defendant is precluded from refusing his consent to assert an available defense to his wife’s claim since the insurance policy contains a cooperation clause. Therefore, the insurer’s argument continues, the issues raised at the hearing on defendant’s motion to dismiss cannot constitute a material and genuine disputed question of fact. I disagree.

The majority summarily disposes of this issue by characterizing the instant lawsuit as a “collusive undertaking,” and concluding that the issue before this court is a “sham issue” which “would appear to violate the cooperation clause of [Mr. Williams’] insurance contract.” There is absolutely no factual evidence of lack of cooperation in the record before us. I am therefore constrained to treat the arguments respecting the operation of the cooperation clause in detail.

Before addressing those arguments however, I must comment on the majority’s charge of "collusion.” As I see it, the majority’s remarks merely cloak their discontent with the supreme court’s Elkins decision under the guise of a legislative mandate. The collusion argument does not withstand judicial scrutiny. I join those judges and courts which have rejected interspousal immunity as an antiquated doctrine which is totally at odds with contemporary society. They resoundingly discredit the collusion argument as a “slander to the integrity of our judicial system.” Guffy by and through Reeves v. Guffy (1981), 230 Kan. 89, 111, 631 P.2d 646, 659 (Prager, J., dissenting, citing Rupert v. Stienne (1974), 90 Nev. 397, 528 P.2d 1013; Richard v. Richard (1973), 131 Vt. 98, 300 A.2d 637; Freehe v. Freehe (1972), 81 Wash. 2d 183, 500 P.2d 771; Brooks v. Robinson (1972), 259 Ind. 16, 284 N.E.2d 794; Beaudette v. Frana (1969), 285 Minn. 366, 173 N.W.2d 416.

Justice Prager, in the Guffy dissent, observed that:

“These courts unanimously agree that spurious and unmeritorious claims are to be determined by the courts and the juries. Precluding all tort claims between spouses on this basis alone runs afoul of the general principle that an injured party should have redress in the courts against the party causing the injury, absent substantial, countervailing public policy reasons. See, e.g., Digby v. Digby, 388 A.2d at 4; Lewis v. Lewis, 370 Mass. 619, 351 N.E.2d 526.” 230 Kan. 89, 111, 631 P.2d 646, 659.

In Coffindaffer v. Coffindaffer (W. Va. 1978), 244 S.E.2d 338, 342-43, the court stated:

“There may be those desperate couples who would conclude that the prospect of a substantial monetary recovery is worth the pain of self-inflicted injuries. One can hardly imagine that the legal system will break down with cases brought by spouses who have flung themselves down the cellar steps or permitted the other spouse to strike them with the family car in order to achieve the type of substantial injury that makes jury litigation worthwhile.”

While the majority opinion herein provides Black’s definition of collusion, as aforesaid, my colleagues cannot refer to a shred of evidence in the instant case of an “evil purpose” or of any fraud being perpetrated against the insurer by Mr. and Mrs. Williams. Certainly it cannot be seriously contended that the relationship between Mr. and Mrs. Williams, by itself, without more, is sufficient to establish either collusion or a breach of the cooperation clause of Mr. Williams’ insurance policy. (See Patterson v. American Mutual Liability Insurance Co. (D. Conn. 1969), 304 F. Supp. 1088, 1092; Connell v. Indiana Insurance Co. (4th Cir. 1964), 334 F.2d 993.) While I recognize that the possibility of collusion exists to a greater extent in the context of close family members (Immer v. Risko (1970), 56 N.J. 482, 490, 267 A.2d 481, 485), “we ought not to deny what should be due the many for fear that the judicial process cannot weed out the spurious claims of a few.” Cohen v. Kaminetsky (1961), 36 N.J. 276, 283, 176 A.2d 483, 487.

In my opinion, the judicial process is equal to the task of exposing most collusive/fraudulent claims. Several methods have been suggested for reducing the likelihood of success in such claims. (See Comment, Massachusetts Interspousal Immunity, 16 N. Eng. L. Rev. 573, 591 (1981).) For example in the instant case it is readily apparent that Mr. Williams, as the defendant-insured, is in a position adverse to that of his insurer. If and when this cause reaches the stage where the merits are considered, I see no reason why Mr. Williams might not be cross-examined by United Security as a hostile witness. His credibility would be thus subject to attack, and any collusion between him and Mrs. Williams could be exposed. In any event, it is a serious miscarriage of justice for this court to simply assume collusion based on the record here before us in this case.

The insurer’s cooperation clause arguments are, in my opinion, also deserving of our serious consideration. The cooperation clause involved herein reads as follows:

“The insured shall cooperate with the company and upon the company’s request, assist in making settlements, in the conduct of suits and in enforcing any right of contribution or indemnity against any person or organization who may be liable to the insured because of bodily injury, property damage or loss with respect to which insurance is afforded under this policy; and the insured shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of accident.”

The insurer contends that if Mr. Williams waives the interspousal immunity defense, he would be breaching his contractual duty to not voluntarily make any payment at the insurer’s expense. Certainly Mr. Williams has not promised or advanced any payment, and Mrs. Williams contends that the insurer’s argument is a collateral issue not properly before this court. Because resolution of the issue could, if decided against the plaintiff, ultimately defeat the plaintiff’s claim, I will consider it based on the record before us and in light of relevant case law.

Initially, I note that the cooperation clause does not specifically recite that the defendant himself must assert personal defenses not otherwise available to the insurer. Had the policy contained clear language to this effect, my resolution of this question, as a matter of contract law, would be to recognize generally the right of private parties to contract away their legal rights. Such, however, is not the case before us, and the insurer has not directed this court’s attention to any other provision in the policy which would tend to exclude a claim by the insured’s spouse. Therefore, my analysis involves interpreting the cooperation clause of Mr. Williams’ policy and giving effect thereto as written by the company. In Elkins, the court observed that “[i]n interpreting the provisions of an insurance policy the intent of the parties is the most significant factor and any ambiguity shall be construed in favor of the insured.” (Allstate Insurance Co. v. Elkins (1979), 77 Ill. 2d 384, 390-91, 396 N.E.2d 528, 531 (citing Kaufmann v. Economy Fire & Casualty Co. (1979), 76 Ill. 2d 11, 389 N.E.2d 1150).) The reasoning of the Elkins case convinces me that the general cooperation clause contained in the insurance policy herein should not be construed so as to impose on the insured a duty to assert a personal defense to avoid the claim filed by Mrs. Wiliams.

In Jordan v. Standard Mutual Insurance Co. (1964), 50 Ill. App. 2d 12, 199 N.E.2d 423, the court considered an automobile insurance policy containing a cooperation clause which the insurer invoked to avoid recovery by the minor child of a deceased insured. The deceased’s wife served in the dual capacity as administrator of the insured’s estate and as guardian of the minor child’s estate. The court held that the conduct of the wife/mother in instigating a suit on behalf of the child against the deceased husband’s estate did not breach the contractual duty owed by her to the insurer under the cooperation clause. The court considered several relevant cases from foreign jurisdictions before concluding that family relationships between the insured and the claimant, rendering the parties nonadversaries, did not necessarily mean that the insured failed to furnish proper assistance to the insurer, nor that the insured had entered into collusion with the plaintiff to establish liability unfairly. 50 Ill. App. 2d 12, 20, 199 N.E.2d 423, 427.

Similarly, in American Policyholder’s Insurance Co. v. Kiratsos (1979), 119 N.H. 958, 409 A.2d 1346,' the Supreme Court of New Hampshire ruled that the administratrix of the insured’s estate, who also served as secretary to the administrator of the estate of the claimant, did not violate the insurance policy cooperation clause by exercising her legal right to waive a statutory 6-month waiting period before proceeding in an action against the estate. Such waiver permitted the claimant to proceed in a wrongful death action which would otherwise have been time-barred. Citing Jordan, the court stated that “[a] cooperation clause does not impose an obligation upon the insured to take an active role in defeating a claim, but only to ‘assist’ and ‘cooperate’ with the insurer in its defense of a claim. *** [Liability insurance is intended not only to indemnify the insured, but also to protect members of the public who may be injured through negligence [citation]. To burden the insured with an obligation to do everything in his power to defeat a legitimate claim would greatly weaken the practical usefulness of policies designed to afford public protection.” 119 N.H. 958, 961-62, 409 A.2d 1346, 1348-49.

In the instant case, I believe it is legally permissible for the insured husband to waive the defense of interspousal immunity. (Elkins; American Policyholder’s Insurance Co. v. Kiratsos (1979), 119 N.H. 958, 962, 409 A.2d 1346, 1348.) Should Mr. Williams ultimately elect to waive his defense, I believe this election, without more, would be insufficient evidence of a breach of his duty to cooperate with his insurer.

Having thus found that material and genuine questions of disputed facts, not obviated by the cooperation clause, were raised in the trial court, I return to section 48(3) of the Civil Practice Act to determine proper disposition of the defendant’s motion to dismiss.

That section, the second sentence thereof, requires that if material and genuine questions of disputed fact are raised, and the action is at law, and the nonmoving party has demanded a trial by jury, then the trial court must deny the motion to dismiss without prejudice. Greenstein v. Nogle (1972), 5 Ill. App. 3d 594, 599, 283 N.E.2d 492, 496; Ill. Rev. Stat. 1979, ch. 110, par. 48(3).

Review of the record on appeal and the relevant law disclose that each of the conditions for denial of the defendant’s motion without prejudice has been met.

Accordingly, I would reverse the order of dismissal entered by the circuit court and remand this cause for further proceedings.

       Accord, Comment, Massachusetts Interspousal Immunity, 16 N. Eng. L. Rev. 573, 591 (1981): “Concededly, there is a possibility of spurious claims in interspousal cases but, the mere threat of such suits should not bar all actions between spouses. If the courts were to close the door to all lawsuits which merely present a possibility of fraud or collusion, it is unlikely that many civil claims would get to court, particularly where insurance companies are involved. Moreover, the efficacy of the judicial process is supposed to ferret out the fraudulent claims from the meritorious ones. This is the very essence of the judicial function.”


author: JUSTICE WEBBER JUSTICE LONDRIGAN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GRANT STUART McGRENERA, Defendant-Appellant.
    Fourth District
    No. 17626
    Opinion filed August 25, 1982.
    LONDRIGAN, J., dissenting.
    John N. Stevens, of Arnold, Gesell, Schwulst & Stevens, of Bloomington, for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Defendant was charged by information in the circuit court of McLean County with the offense of battery in violation of section 12— 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 12— 3) in that he made a physical contact of an insulting or provoking nature upon a named female. He waived his right to jury trial and was found guilty at bench.' He was sentenced to a fine of $100. Thereafter defendant filed a motion for modification of sentence in which he alleged that the trial court was in error in not considering supervision as a disposition in accordance with section 5 — 6—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—1(c)) (the UCC). The court denied the motion and this appeal ensued.

At issue is our opinion in People v. Bodine (1981), 97 Ill. App. 3d 42, 422 N.E.2d 256, wherein it was held that supervision is available only to such defendants as plead guilty or enter into a stipulation in accordance with section 5 — 6—1(c) of the UCC, not to defendants who stand trial. The trial court held that it was bound by Bodine-, defendant argued there, and here, that Bodine was erroneously decided and asks us to reconsider. He further argued in the trial court, and here, constitutional issues: that Bodine, as decided, is a violation of due process and equal protection.

We disagree. Bodine was properly decided and we take this opportunity to elaborate upon it.

The legislative history of section 5 — 6—1(c) is helpful in reviewing what the General Assembly was attempting to do, but we find that the effort was abortive. The supreme court in People v. Breen (1976), 62 Ill. 2d 323, 342 N.E.2d 31, held supervision as a penalty to be illegal since it had no statutory basis. In reaction to this decision at least 10 bills were introduced at the spring 1976 session of the General Assembly. Two of them are the principal vehicles for this discussion: House Bill 3954 and Senate Bill 1997. It should also be noted that the main controversies, as shown from the debates, revolved about two issues: (1) who should be eligible for supervision, felons, misdemean-ants, traffic offenders, and what class of each; and (2) whether the consent of the State’s Attorney was required. Little attention was paid to the procedural aspects.

As it now stands, the statute states in pertinent part:

“The court may, upon a plea of guilty or a stipulation by the defendant of the facts supporting the charge or a finding of guilt, defer further proceedings and the imposition of a sentence, and enter an order for supervision ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005-6-l(c).)

For purposes of the instant discussion, it must be borne in mind that the phrase “plea of guilty or” was added to the statute by Public Act 80 — 810, Senate Bill 228, approved September 20, 1977. This occurred after the events described hereinafter concerning House Bill 3954 and Senate Bill 1997, which occurred in June 1976.

Defendant argues that the statute provides three situations in which supervision is available: (1) plea of guilty, (2) stipulation of facts supporting the charge, or (3) after a finding of guilty at trial. In Bo-dine we held that the third alternative was not authorized by the statute.

Senate Bill 1997, as originally drafted and introduced, provided:

“Whenever a person pleads guilty or is found guilty of any offense *** the' court may, without entering a judgment of guilty, place such person under court supervision ***.”

At this juncture the legislation is clearly following the pattern set by section 410(a) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 561/2, par. 1410(a)), which provides in pertinent part:

“Whenever any person *** pleads guilty to or is found guilty of possession ***, the court, without entering a judgment *** may sentence him to probation.”

This is the normal pattern for the compassionate statutes which allow an accused person to accept punishment and at the same time maintain a clear record. The judgment of the court is the critical factor; by without holding judgment there is no adjudication of guilt. This is clearly spelled out in the Unified Code of Corrections:

“ ‘Judgment’ means an adjudication by the court that the defendant is guilty or not guilty, and if the adjudication is that the defendant is guilty, it includes the sentence pronounced by the court.” Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 1—12.

The supreme court has repeatedly held that the final judgment in a criminal case is the sentence. (People v. Becker (1953), 414 Ill. 291, 111 N.E.2d 491; People v. Rose (1969), 43 Ill. 2d 273, 253 N.E.2d 456; People ex rel. Filkin v. Flessner (1971), 48 Ill. 2d 54, 268 N.E.2d 376; People v. Warship (1974), 59 Ill. 2d 125, 319 N.E.2d 507.) It has further held that a judgment without a sentence is a nullity and must be vacated. People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1.

Since the compassionate statute bypasses this procedure, it is essential that this be spelled out with particularity. Judgment and sentence are intimately linked; judgment without sentence is a nonentity (Lilly), and too long delay between judgment and sentence will deprive a court of jurisdiction (Breen) People ex rel. Boenert v. Barrett (1903), 202 Ill. 287, 67 N.E. 23); by extension of logic, a sentence without a judgment is likewise inoperative. Any irruption of this pattern is a legislative prerogative (Breen), but must be accomplished with great care.

The Senate passed the bill in its initial form as set forth above. If it had so remained, there could be no doubt that supervision would be an available option after trial. In fact, an amendment was offered in the Senate which would eliminate supervision after trial and it was defeated.

In the House a quite different approach was being taken. House Bill 3954, as originally introduced, provided:-

“The court may, with the consent of the defendant and the appropriate prosecuting authority, upon a stipulation by the defendant of the facts supporting the charge or a finding of guilt, defer further proceedings and the imposition of a sentence, and enter an order for supervision ***.”

When the bill was reported out of committee, the language providing the predicate for supervision was deleted and the bill then stated:

“The court may, with the consent of the defendant and the appropriate prosecuting authority, defer further proceedings and the imposition of a sentence, and enter an order for supervision ***.’’

Debate then followed and Amendment No. 1 was introduced which inserted after the word “authority” the words “upon a plea of guilty by the defendant or a finding of guilt.” This amendment was tabled and Amendment No. 2 was offered and adopted which restored the original language of the bill as introduced. This was the final version as adopted by the House.

All of the House action came in the form of an amendment to Senate Bill 1997. The matter was then referred to a conference committee which recommended that the House recede from its amendment and that Senate Bill 1997 be amended. The amended Senate Bill 1997, as reported from the conference committee, was section 5 — 6—1 of the UCC as it now stands with the exception of the plea of guilty which was added to subparagraph (c) at a subsequent session of the General Assembly as explained above. There were also additional amendments adding section 5 — 6—3.1 concerning incidents and conditions of supervision and adding language to section 5 — 6—4 to encompass supervision.

The conference committee’s report was adopted by both houses and as is evident from the detailed recitation above, was essentially the House version with the elimination of the consent of the defendant and the prosecuting authority.

Some of the debate in the House indicates that the members believed that the language of the amendment permitted supervision after trial. A portion of the debate on June 9, 1976, is as follows:

“Schlickman: The Bill, as it was introduced, provided that the court would have the authority to grant supervision if it had been consented to by the State’s Attorney. Amendment #1 provided that as a condition for supervision there should not only be the consent of the State’s Attorney, but that there be a plea of guilty by the defendant, or in the alternative a finding of guilt by the judge. What Amendment #2 is, simply ... What Amendment #2 simply does is to substitute for the plea of guilty, a stipulation of fact by the defendant, so that if there is subsequently a violation of supervision, the judge could enter, automatically, a judgment against the defendant without the defendant having the opportunity of arguing the fact in the trial.
Maragos: And that is also for the fact that ... the difficulty of finding witnesses to come back to testify. But, isn’t this Amendment #2, ... a finding of guilty necessary? Outside of the fact that it stipulates ...
Schlickman: No, it’s in the alternative. Actually it establishes ...
* * *
Schlickman: What the Amendment simply does is to codify what the actual practice was prior to the Supreme Court decision in Breen.
* * *
Duff: I don’t find the copy of the Amendment but I’m sure it’s been distributed ... that is not my point. Does the Amendment totally substitute the stipulation of facts for the guilty finding or is it an alternative? Are both methods available?
Schlickman: Well, we still retain the alternative method of finding of guilt. We don’t...
Duff: And you just add another option, which we used to have anyway, of the stipulation of fact.
Schlickman: We are substituting the option that we previously had for a plea of guilty.
Duff: But, you’re still allowing a plea of guilty? Is that correct? I mean, is it an alternative, and not a substitution? Is that
Schlickman: It’s an alternative.
Duff: Oh. And, the other alternative is still there?
Schlickman: Is the finding, of guilt either upon a plea of guilty or upon a trial.” Transcription of House Proceedings, June 9, 1976, at 53, 54.

However well founded the belief of Representative Schlickman might have been that the bill allowed supervision after trial, the language simply will not sustain it. It will be remembered that the House was debating amendments to the Senate bill which contained a specific provision for trial and the principal focus of the House debate was the substitution of a stipulation for a plea, the first alternative in the Senate bill.

We have no information as to the source or reasoning behind the House version, but it is substantially different from that of the Senate. The Senate version is straightforward: “or is found guilty.” This necessarily encompasses either a jury or a bench trial. Yet Representative Schlickman spoke of “a finding of guilt by the judge,” a phrase which eliminates a jury verdict altogether but without any concomitant suggestion of jury waiver.

A closer analysis of the “trial” concept will reveal the basic weakness and inconsistency in the statute and the beliefs of the legislators during debate. The language of section 5 — 6—1(c) states the alternative foundations for supervision, i.e., a plea or stipulation of facts. There is no reference to “trial.” The language “a finding of guilt” is consistent with and relevant to a plea or stipulation of fact, but in the context of language stating a plea or stipulation of facts, does not easily become the third alternative of a trial.

The concept of a “trial” necessarily incorporates and includes trial by jury. The procedure which would “defer further proceedings and the imposition of sentence” makes a shambles of the past and present case law concerning procedures necessary to preserve a jury finding.

The finding of guilt by a jury becomes a verdict when received, accepted by the court, and entered of record. People v. Wilson (1972), 51 Ill. 2d 302, 281 N.E.2d 626.

In People v. Vaughn (1981), 92 Ill. App. 3d 913, 416 N.E.2d 681, a jury announced its verdict but the record failed to show that the trial judge entered a judgment on such verdict. It was determined that the jury finding was not final until accepted by the court, and that there must be an explicit judgment entered of record. It was held that in the absence of such judgment the trial judge did not have jurisdiction to impose sentence. The opinion stated:

“In civil cases these concerns are embodied in sec. 68(2) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68(2)), which provides: ‘Promptly upon the return of a verdict, the court shall enter judgment thereon.’ Although this statute is inapplicable to criminal cases, practice and reason point to the conclusion that the rule should be followed in criminal as well as civil cases.” 92 Ill. App. 3d 913, 915, 416 N.E.2d 681, 683.

In People v. Rehberger (1979), 73 Ill. App. 3d 964, 392 N.E.2d 395, appeal denied (1979), 79 Ill. 2d 623, the jury agreed as to findings upon four of six charges, but the trial judge declared a mistrial upon all counts. Three months later he concluded that he had erred, read the verdicts forms and entered judgments upon the four counts where the jury had returned its findings. The reviewing court found that the four judgments were not valid and reversed those convictions.

The rationale stated:

“The finding of a jury does not become a verdict until it has been received, accepted by the court and recorded of record. [Citations.] In other words, a verdict is not final until pronounced and recorded in open court. [Citations.] That the most essential element to the making of a verdict is its pronouncement in open court is evident from the fact that various technical deficiencies in the written verdict may be overlooked so long as the verdict is read in open court in the presence of all of the jurors so that they may show their assent to it.” 73 Ill. App. 3d 964, 968, 392 N.E.2d 395, 397.

Noting that the record disclosed no opportunity to poll the jury, the court concluded that there were no verdicts upon which sentences could be imposed.

It seems evident that the procedural requirements of a jury trial cannot be made compatible with the concept of deferring further proceedings and that if a jury trial is provided, a judgment must be entered upon the jury finding. This result is inconsistent with the stated purpose of “supervision.”

We therefore respectfully differ with the result espoused in the dissent. The phrase “a finding of guilt” cannot be construed to mean a jury trial in its complete sense. If the liberal construction asserted in the dissent is to prevail, it must be further refined to limit it to the particular sense of a bench trial.

Since the Senate version was rejected in its entirety, “stipulation” substituted for a plea of guilty (which ironically was added at the subsequent session) and "found guilty” eliminated altogether, we can only conclude that the House version proceeded upon a different set of premises.

An analysis (known in yesteryear as “parsing”) of the sentence yields insight into its meaning. We have first the noun “facts” modified by the participle “supporting.” There follow two nouns as the objects of the participle: “charge” preceded by the definite article, and “finding” preceded by the indefinite article. “Finding,” as here used, is a gerund which is defined as a verbal noun taking the form of the present participle. Fowler’s classic Modern English Usage (2d ed. 1965) in discussing the gerund gives as an example of the difference between gerund and participle as follows: “[LJoving is a gerund in ‘cannot help loving him,’ but a participle in ‘a loving husband.’ ” (Emphasis in original.) The language then refers to a stipulation of facts supporting either (1) “the charge,” or (2) “a finding of guilt.”

Defendant argues that there is no difference between the two. We disagree. The language makes possible a finding of guilt if the stipulation of facts will support either the specific charge against the defendant, or another included offense. For example, let us suppose that a defendant has been charged with driving under the influence of alcohol. He is unwilling to stipulate to any drinking but is willing to stipulate to facts supporting reckless driving. The court could still make a finding of guilt without finding him guilty of “the charge.”

If supervision is to be an option after trial, the statute must contain a third alternative, so as to provide:

“The court may, upon a plea of guilty, or a stipulation by the defendant of the facts supporting the charge or a finding of guilt, or if the defendant is found guilty, defer further proceedings ***.”

This would bring it into harmony with what the legislature was apparently trying to accomplish. The project became derailed when, during the debates over substituting the stipulation for the plea, the alternative of the defendant being “found guilty,” i.e., after a trial either at jury or at bench, became lost, or at best, was assumed to be contained within the “finding of guilt.”

Optimally, the statute would also specifically direct the withholding of a judgment in accordance with our discussion above concerning judgments and sentences. However, it has been made clear that supervision is a disposition, not a sentence. Senate Bill 1997 amended the title of section 5 — 6—1 to state “Sentences of Probation and Conditional Discharge and Disposition of Supervision.” (Amendment in italics.) “Or Supervision” was added to the title of section 5 — 6—4 and the word “supervision” was added throughout this section in various forms. Under such circumstances, the mandate to “defer further proceedings” may be sufficient, although if supervision is not a sentence, it is difficult to perceive why the language “imposition of sentence” is used. We note that supervision has never been added to the list of dispositions contained in section 5 — 5—3 of the UCC (Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3).

In short, it appears to us that the legislature fell short of what seemed to be its goal. We commend to it further consideration of the subject and hold to our original opinion in Bodine that supervision is not available after trial.

Defendant has raised constitutional objections of lack of procedural due process and equal protection. His theory is that his right to trial has been infringed and points to a variety of cases in which heavier punishments were dealt out after trial either because the defendant elected to stand trial or refused to confess at the time of sentencing. (United States v. Wiley (7th Cir. 1960), 278 F.2d 500; Thomas v. United States (5th Cir. 1966), 368 F.2d 941; Scott v. United States (D.C. Cir. 1969), 419 F.2d 264.) Since matters involved in these cases occurred at post-trial proceedings, they are inapposite to the situation presented here: a choice which can knowingly be made by a defendant at the start. Due process and equal protection are offended “only if a statute manifests a patently arbitrary classification, utterly lacking in rational justification.” Flemming v. Nestor (1960), 363 U.S. 603, 611, 4 L. Ed. 2d 1435, 1445, 80 S. Ct. 1367, 1373.

It is to be noted that the statute here involved applies only to offenses which are not felonies. These are by far the most numerous filings in our courts. The 1980 Report of the Administrative Office of the Illinois Courts to the Supreme Court shows that statewide during that year 506,997 misdemeanor and 6,451,325 traffic cases were filed. The State has a serious and rational interest in disposing of this enormous load. Supervision without trial is one rational method of doing so. It is not arbitrary since it gives the offender his option at the very beginning of the proceedings. All offenders are treated alike in this respect. “Equal protection does not require that all persons- be treated equally. It only requires that there be a reasonable and rational basis for the classifications which justifies different procedures for treating the two groups. [Citation.]” People v. Pembrock (1976), 62 Ill. 2d 317, 321, 342 N.E.2d 28, 30.

The judgment of the circuit court of McLean County is affirmed.

Affirmed.

TRAPP, J., concurs.

JUSTICE LONDRIGAN,

dissenting:

The majority, in its construction of the statute, reaches a result that is contrary to the clear intent of the legislature. Accordingly, I dissent.

The majority concedes that the phrase, “a finding of guilt,” originated on the House floor as an alternative distinct from “a stipulation by the defendant of the facts supporting the charge.” They also concede that when offering the amendment containing this language, Representative Schlickman explained to the House that “a finding of guilt” could occur “upon a plea of guilty or upon a trial.” Additionally, in his introductory remarks and throughout his replies to inquiries, Representative Schlickman said that the amendment was intended to codify the practice that had existed before the supreme court’s decision in Breen. The practice before Breen was to allow supervision to defendants who proceeded to trial, and in fact the defendant in Breen was adjudged guilty after a bench trial. Finally, the majority acknowledges that when the Senate passed its first bill on supervision, it rejected an amendment that would have eliminated supervision as an option after trial and instead allowed supervision whenever a defendant “is found guilty,” which meant after trial.

The majority declines to follow these clear indications of legislative intent and says: “However well founded the belief of Representative Schlickman might have been that the bill allowed supervision after trial, the language simply will not sustain it”; “The legislative history of section 5 — 6—1(c) is helpful in reviewing what the General Assembly was attempting to do, but we find that the effort was abortive”; and “[I]t appears to us that the legislature fell short of what seemed to be its goal.” I disagree: the majority’s interpretation of the statute, and not the statute itself, fails to sustain the legislature’s intent.

The Illinois Supreme Court has lucidly and definitively rejected the approach that the majority is taking:

“The cardinal rule of statutory construction, to which all other canons and rules are subordinate, is to ascertain and give effect to the true intent and meaning of the legislature [citations]; and where, as in this case, there is no controlling precedent, the history, existing circumstances and contemporaneous conditions of the legislation are invaluable in ascertaining that intent. [Citations.]” (People ex rel. Hanrahan v. White (1972), 52 Ill. 2d 70,73, 285 N.E .2d 129,130.)

To effectuate legislative intent, the Illinois Supreme Court has inserted one word for another (People ex rel. Barrett v. Anderson (1947), 398 Ill. 480, 76 N.E.2d 773), supplied missing provisions (Ketcham v. Board of Education (1927), 324 Ill. 314, 155 N.E. 332), enlarged (Baker & Conrad, Inc. v. Chicago Heights Construction Co. (1936), 364 Ill. 386, 4 N.E.2d 953) or restricted (City of Elmhurst v. Buettgen (1946), 394 Ill. 248, 68 N.E .2d 278) the normal meanings of words, and disregarded punctuation (Illinois Bell Telephone Co. v. Ames (1936), 364 Ill. 362, 4 N.E .2d 494).

The case at hand requires no such radical remedies. One reading “upon a stipulation by the defendant of the facts supporting the charge or a finding of guilt” (the original statutory language as passed in 1976) notes an obvious ambiguity: whether “finding” is an object of the preposition “upon” or of the modifying participle “supporting.” We are told, “We have first the noun ‘facts’ modified by the participle ‘supporting.’ There follow two nouns as the objects of the participle: ‘charge’ preceded by the definite article, and ‘finding’ preceded by the indefinite article.” The majority begs the question by assuming that “finding” is an object of “supporting.” Grammar does not resolve the ambiguity, for “finding” may as well be an object of “upon” as an object of “supporting.” The case law therefore requires us to search for the legislative intent.

The language under question was meant to codify the pre-Breen practice and was explicitly presented as allowing supervision after trial. The Senate rejected an amendment that would have denied supervision after trial, and the further evolution of the statute and this particular language indicates an independent meaning for “a finding of guilt.” (See R.S. Blome Co. v. Ames (1937), 365 Ill. 456, 6 N.E.2d 841.) The majority believes that the difference in wording between the original Senate bill, which allowed supervision “whenever a person *** is found guilty,” and the House bill and final language, which allow supervision “upon *** a finding of guilt,” evidences a detour in legislative thought. This ignores, however, everything else in the legislative history.

When “a plea of guilty or” was inserted by the House into the bill amending the supervision statute in 1977, the following comment was made:

“Schlickman: Thank you, Mr. Speaker and Members of the House, Senate Bill 228 amends the Act on supervision ***. By Amendments, certain technical changes are made to the Bill, to the Act on supervision, as adjusted [sic] by the presiding Judge of the Second Municipal District of Cook County, Harold Sullivan, contained in a Bar Association article.” (Transcription of House Proceedings, June 15,1977, at 170.)

The passage Representative Schlickman is referring to says:

“The statute requires either a finding of guilty or a stipulation to the facts so a plea of guilty may not be sufficient.” (Sullivan, Supervision Comes to All of Illinois, 65 Ill. B.J. 190,194 (1976).)

It is significant that the legislature chose to add the “plea of guilty” option at Judge Sullivan’s suggestion but did nothing to correct his assumption that supervision is available after a finding of guilt.

In coming to its conclusion, the majority has ignored or contravened several other principles of statutory construction that favor a contrary holding. First, when language is ambiguous, the sense that contemporaneous members of the profession have put on it is to be considered. (Antrim v. Guyer & Calkins Co. (1945), 324 Ill. App. 641, 59 N.E.2d 316.) The only commentaries brought to our attention explicitly understood the statute to allow supervision for defendants who had proceeded to trial. See Jordan, Lampkin, and Woods, Some Thoughts on Supervision as a Disposition in Minor Criminal Cases, 7 Ill. St. B. A. Jud. Ad. Newsletter 5, 6-7 (October 1976); Sullivan, Supervision Comes to All of Illinois, 65 Ill. B.J. 190,194 (1976).

Second, it is a well-known principle of construction that a statute should be construed so that no part is meaningless, redundant, or superfluous. (Peacock v. Judges Retirement System (1957), 10 Ill. 2d 498, 140 N.E.2d 684.) Yet nothing is accomplished if “upon a stipulation by the defendant of facts supporting a finding of guilt” is added to “upon a stipulation by the defendant of facts supporting the charge.” The majority says that the object is to provide for stipulations to lesser included offenses, but lesser included offenses are automatically included in a charge (People v. Ostrand (1966), 35 Ill. 2d 520, 530, 221 N.E.2d 499, 505). The majority’s reasoning suggests that without its interpretation, a defendant who stipulates to facts supporting a lesser included offense would not be eligible for supervision for that lesser included offense. A judge could not grant supervision for a lesser included offense if the State’s Attorney wished to prosecute that greater charge. So, in any event, the State’s Attorney would have to agree to a reduced charge. Therefore, the majority’s strained interpretation is not necessary to provide for lesser included offenses. Furthermore, if that is what the legislature intended to accomplish, the statute would read “upon a stipulation by the defendant of facts supporting the charge or a lesser included offense.”

Third, the majority has characterized supervision as a “compassionate statute.” The majority holds that because it bypasses the normal procedure of judgment and sentencing, it must “be spelled out with particularity” and “accomplished with great care.” Apparently the majority here means that the statute will be construed strictly against the defendant. Penal statutes are to be strictly construed and any ambiguity resolved in favor of the defendant. People v. Kirkrand (1947), 397 Ill. 588, 74 N.E.2d 813.

Today we uphold the statutory construction of Bodine, in which the issue of allowing supervision after trial was not even briefed. The Bodine opinion made no attempt to examine the legislative history or the post-Breen setting in which the supervision statute was enacted. Careful examination reveals that Bodine was wrongly decided. We now compound the error.


author: JUSTICE HEIPLE JUSTICE SCOTT,

text:
    THE PEOPLE ex rel. BRUCE W. BLACK, Tazewell County State’s Attorney, Plaintiff-Appellee, v. DENZIL L. DUKES, Defendant-Appellant.
    Third District
    No. 81 — 628
    Opinion filed September 9, 1982.
    SCOTT, J., dissenting.
    Homer J. Tice, of Knuppel, Grosboll, Becker & Tice, of Petersburg, for appellant.
    G. Edward Orr, Assistant State’s Attorney, of Pekin, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

Defendant, Denzil L. Dukes, is a member of the Village of South Pekin Board of Trustees. South Pekin is a rural community with a population of approximately 1,250 people. Mr. Dukes is also a member of the South Pekin Grade School Board. The grade school, offering classes to students in grades K through 8, has approximately 360 students. The Village of South Pekin is completely encompassed within the South Pekin Grade School District.

The Tazewell County State’s Attorney contends that it is incompatible for the defendant to serve on both the village board and the grade school board. Thus, it is his claim that when Mr. Dukes was elected to the school board at a time when he was already serving on the village board, he automatically and ipso facto terminated his position on the village board. Dukes disagrees. He maintains his entitlement to serve on both boards.

To prove his point, the State’s Attorney sought a writ of quo war-ranto and a declaratory judgment. The trial court agreed with the State’s Attorney. It found the simultaneous holding of the two offices to be incompatible and ruled that Dukes had automatically vacated his position on the village board when he was elected to the school board. The uncontroverted facts follow.

On April 8, 1978, Denzil L. Dukes, a private citizen and resident of the village of South Pekin, was elected to fill an unexpired term on the South Pekin Grade School Board of Education for a one-year term. Approximately three months later, Dukes was appointed to a position on the South Pekin Board of Trustees. On April 10, 1979, Dukes was elected to fill the vacancy to which he has been appointed on the board of trustees, which term was to be for four years. Four days later he was elected to serve a three-year term on the South Pe-kin Grade School Board of Education.

The claimed incompatibility of Dukes’ two offices stems from the fact that the village board and the school board, both being units of local government under State statutes, are authorized to enter into contracts with each other. Section 10 of article VII of the Illinois Constitution of 1970, in relevant part, provides:

“(a) Units of local government and school districts may contract or otherwise associate among themselves, with the State, with other states and their units of local government and school districts ***.” (Ill. Const. 1970, art. VII, sec. 10(a).)
“(b) Officers and employees of units of local government and school districts may participate in intergovernmental activities authorized by their units of government without relinquishing their offices or positions.” Ill. Const. 1970, art. VII, sec. 10(b).

Thus, the South Pekin Board of Trustees and the South Pekin Grade School Board of Education may contract and legally associate with one another. Moreover, the village of South Pekin, through the board of trustees, has the authority to grant financial assistance to the school district through State revenue sharing funds. (Ill. Rev. Stat. 1979, ch. 85, par. 611 et seq.) For these, reasons, the State’s Attorney, relying on People v. Haas (1908), 145 Ill. App. 283, claims that it is impossible for Dukes in every instance to properly and fully perform all the duties of each office without experiencing an incompatible conflict of interest.

Haas involved the election of an individual to the office of State Senator. Subsequent to that time, he was elected Clerk of the Municipal Court of Cook County. A proceeding was brought to compel the County Clerk of Cook County to declare that office of State Senator vacant as a result of his election to the office of Municipal Court Clerk for Cook County. The court found the two offices were incompatible under an Illinois constitutional provision which provided that “No judge or clerk of any court *** shall have a seat in the General Assembly ***.” (Ill. Const. 1870, art. IV, sec. 3.) Accordingly, the court held that acceptance of the office of clerk was an ipso facto resignation of the office of senator.

The court in Haas stated:

“Incompatibility, in this connection, is present when the written law of a state specifically prohibits the occupant of either one of the offices in question from holding the other and, also, where the duties of either office are such that the holder of the office cannot in every instance, properly and fully, faithfully perform all the duties of the other office. This incompatibility may arise from multiplicity of business in the one office or the other, considerations of public policy or otherwise.” 145 Ill. App. 283, 286.

Haas is clearly distinguishable on its facts. The governmental offices involved in Haas were entirely different offices than are involved in the instant case. And Haas is distinguishable on the law. In Haas there was an Illinois constitutional provision which specifically barred a court clerk from having a seat in the General Assembly.

While it is arguable that the quoted dicta from Haas could be viewed in one light so as to bar the double office holding in the instant case, it is more strongly arguable that such language does not support that interpretation. Haas was dealing with a specific constitutional prohibition that simply does not pertain to the case at hand.

Moreover, we see no conflict or incompatibility between membership on a school board and a village board of trustees. The duties and responsibilities of these two boards are entirely different and unrelated. The potential problems suggested by the State’s Attorney of revenue sharing and intergovernmental cooperation have not occurred in fact during defendant’s tenure, and the likelihood of their occurring are purely speculative. If such a potential conflict of interest should become an actual conflict, it could be satisfactorily dealt with by the mere expedient of the board member simply withdrawing from participation on that particular matter. This withdrawal on a specific matter would be no different than a board member declining participation on a business matter involving his governmental unit where some third party who was a friend or relative of the board member was transacting business with that public body. By way of illustration, judges, for instance, recuse themselves from a specific case when they anticipate a potential conflict of interest. They do not resign their judicial position for that reason.

Indeed, the 1970 Illinois Constitution encourages intergovernmental cooperation and authorizes officers and employees of governmental units to take part in the administration of intergovernmental activities. (7 Record of Proceedings, Sixth Illinois Constitutional Convention 1748.) Thus, we do not share the State’s Attorney’s view that intergovernmental cooperation arrangements between the two boards in question would, of necessity, create any actual conflict of interest. That would depend on the facts of the situation.

The right to hold office is a valuable one. The exercise of such right should not be prohibited or curtailed except by plain provisions of the law. Statutes imposing disqualifications of public officers should be strictly construed, while those declaring qualifications should be construed liberally, and every doubt or ambiguity must be resolved in favor of eligibility. Livingston v. Ogilvie (1969), 43 Ill. 2d 9; Brown v. Kirk (1975), 33 Ill. App. 3d 477.

Citizen participation in government should be encouraged rather than discouraged. Illinois, with its multiplicity of local governmental units, is continuously challenged to find adequate numbers of capable citizens who are ready, willing and able to fill the thousands of official positions which the law has created. Most such officials serve without pay and devote countless hours to their duties. School boards are a case in point. Other examples would include zoning boards, police and fire commissions, sanitary and fire district boards, park districts, library boards, and so forth. The list goes on and on. Especially in small communities, citizens must often be recruited in direct opposition to their personal peace and comfort and encouraged in the name of good citizenship to accept these often thankless jobs. We note that the defendant in this case was first elected to the village board to fill an unexpired term and was later appointed to fill a vacancy on the school board. He is deserving of commendation rather than condemnation for his willingness to accept the civic challenge to fill these board vacancies. We also note that the smaller the community, the more difficult it is to find citizens in sufficient numbers to fill available governmental positions. This is an observable and indisputable fact. Certainly, South Pekin, with some 1,250 residents, is no exception to this rule. We find no dispute as to Mr. Duke’s qualifications to serve; he has been twice elected to each board. The public, we must conclude, approves of his holding those offices. We see no reason to hold otherwise.

For the reasons given, the judgment of the circuit court is reversed.

Reversed.

BARRY, R J., concurs.

JUSTICE SCOTT,

dissenting:

No aspersion has been cast upon the integrity of the defendant Dukes, nor should there be. I further agree with the observation in the majority opinion to the effect that citizen participation in governmental affairs should be encouraged rather than discouraged, yet I am constrained to dissent from the result reached in the majority opinion.

As I read the majority opinion, it concedes that there is a possibility of a conflict of interest resulting from the defendant’s dual service as a trustee of the village of South Pekin and as a member of the South Pekin Grade School Board. The majority opinion states that this conflict could be avoided by his withdrawal and refusal to participate in situations that might give rise to a conflict. An argument is advanced that the defendant could do as judges do, to-wit, recuse themselves from a specific case when their participation in a case would give rise to a possible charge of impropriety.

In examining these observations found in the majority opinion it should first be noted that it is stated that the defendant could recuse himself from participation in certain situations. It is not stated that it would be mandatory for the defendant to do so and rightly so, because there is no constitutional or statutory provision requiring such action on the part of the defendant. I am further of the belief that it would be a grave mistake to try by judicial opinion to vest in dual office holders the right to determine when their participation in governmental affairs would give rise to a charge of conflict of interest. Such an opinion would encourage dual office holding, thereby spawning a rash of litigation, and would further be a serious blow to the continuous quest for integrity in government.

Judges do recuse themselves from cases where their participation would give rise to a charge of impropriety. They do so for a number of reasons, i.e., personal knowledge about the litigation, personal friendship or animosity as to the parties or counsel, personal philosophy as to certain doctrines. All of these factors could give rise to bias or a charge of bias. Judges in our State, unlike the defendant, are not dual office holders. They do not, like the defendant, affirmatively take steps to place themselves in a questionable situation. The activities of judges in our State are stringently regulated, and I fail to see any logical analogy between their activities and the activity of the defendant.

The majority opinion recognizes that the South Pekin Board of Trastees and the Grade School Board of Education may contract and legally associate with each other. It also recognizes that the village of South Pekin through the board of trustees has authority to grant financial assistance to- the school district through State revenue sharing funds. It is impossible to refute the fact that the defendant has placed himself in the position where he may well have to serve two masters. Serving two masters has never proved to be a successful venture. It is unfair to the masters, it is unfair to the individual who attempts to so serve, and in the instant case it is unfair to the citizens of South Pekin.

The majority opinion recognizes the case of People v. Haas (1908), 145 Ill. App. 283, but asserts that the holding in Haas is not applicable in the instant case because in Haas there was a specific constitutional prohibition against dual office holding. The majority opinion has set forth the pertinent language of Haas regarding situations where incompatibility results from dual office holding. The language does not require the existence of specific statutory or constitutional provisions prohibiting dual office holding before incompatibility will arise, but states that consideration of public policy will result in incompatibility. In the instant case a public policy question is present in that the defendant is in a position where he cannot impartially perform the duties of each of the governmental offices which he serves.

On June 30, 1980, the Attorney General of our State issued opinion No. S — 1494 (1979-1980 Ill. Opp. Att’y Gen. 80) which advised the State’s Attorney of Vermilion County that the holding by the same individual of the offices of village mayor and school board member resulted in incompatibility because it was possible that conflicts of interest might arise due to State revenue sharing. Attorney General opinions have no precedential authority but can be cited for advisory purposes only. I deem the opinion noteworthy in that it addresses the precise question presented in the instant case.

For the reasons stated I am of the opinion that the judgment of the circuit court of Tazewell County should be affirmed.