author: JUSTICE WEBBER

text:
    TERRI BURNETT, Plaintiff-Appellant, v. DEBORAH DONATH et al., Defendants (The City of Champaign et al., Defendants-Appellees).
    Fourth District
    No. 4—84—0122
    Opinion filed August 30, 1984.

      Richard T. West, of Follmer & West, of Champaign, for appellant.
    Craig J. Causeman, of Thomas, Mamer & Haughey, of Champaign, for appellee City of Champaign.
    Heyl, Royster, Voelker & Allen, of Urbana (James C. Kearns and Bruce L. Bonds, of counsel), for appellee City of Urbana.
   JUSTICE WEBBER

delivered the opinion of the court:

Plaintiff appeals from an order of the circuit court of Champaign County which dismissed her amended complaint against the defendants, the city of Champaign and the city of Urbana. The trial court made the requisite finding under Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)).

The lawsuit arises out of an automobile accident which occurred at the intersection of Green and Wright Streets in Champaign-Urbana at about 11:10 p.m. on March 14, 1981. Plaintiff was a passenger in a car driven by the defendant Head. Head was eastbound on Green Street and was attempting a left turn onto Wright Street. Her vehicle was struck in the intersection by one driven by the defendant Donath, who was westbound on Green. It is unquestioned that plaintiff suffered severe and permanent injuries which left her a quadriplegic.

The record contains indications that the case was settled with defendants Head and Donath. Donath filed counterclaims against Head, the city of Champaign and the city of Urbana for contribution; these are apparently still pending but are not part of this appeal.

The city of Champaign answered the original complaint; the city of Urbana filed a motion to dismiss. Thereafter, Champaign moved to withdraw its answer and file a motion to dismiss. Plaintiff objected, but ultimately the motion was allowed. Plaintiff then sought and was granted leave to file an amended complaint against the cities, both of which filed motions to dismiss the amended complaint. Urbana’s motion was lengthy and was adopted by Champaign. It did not specify, other than mentioning section 2—603(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2—603(b)), precisely what type of motion it was. However, its prayer was for dismissal with prejudice, and we therefore interpret it as a motion under section 2—615 of the Code (Ill. Rev. Stat. 1983, ch. 110, par. 2—615) claiming legal insufficiency of the amended complaint.

The amended complaint’s allegations were largely parallel as to the two cities. The operative facts of the accident were alleged and, in addition thereto, it was alleged that the State high school basketball tournament was occurring on the same date and had ended shortly before the accident; that the tournament was attended by thousands of people, many of whom were teen-age students. A further allegation was that the intersection was in the heart of “Campus Town” and that on the date of the tournament was one of the most highly traveled intersections in the cities.

The gist of plaintiff’s allegations of negligence against the cities is contained in two paragraphs of the amended complaint. These state:

“That defendant then and there negligently permitted a condition to exist, namely the improper design and construction of said intersection in light of its use on the date in question, which endangered the safe movement of traffic and made no provision for turning lanes or other means, including but not limited to traffic control devices, to allow the eastbound Green Street traffic to turn left unencumbered by the westbound lane of Green Street traffic and gave no warning of said dangerous condition.
Further, defendant negligently failed to provide properly functioning traffic control devices and a properly functioning intersection in that neither was reasonably fit for the use to which they were put on the date in question.”

In its ruling dismissing the amended complaint, the trial court cited Boylan v. Martindale (1982), 103 Ill. App. 3d 335, 431 N.E.2d 62, and reiterated language from that opinion which the trial court had used in dismissing the original complaint:

“[I]t would be entirely reasonable for the city to have believed that it fulfilled its duty to maintain a safe intersection by providing the clearly visible and functioning traffic lights. In this regard we must note that the city is only under a duty of ordinary care to maintain its streets in a reasonably safe condition. (Ill. Rev. Stat. 1979, ch. 85, par. 3—102(a).) By no means is the city to be considered an insurer against all accidents occurring on the public way. *** [W]e conclude that, as a matter of law, the trial court could have correctly determined that the city fully discharged its duty by maintaining an unobstructed, properly working traffic signal at the intersection.” 103 Ill. App. 3d 335, 341, 431 N.E.2d 62, 67.

It is thus apparent that the trial court held in substance that the cities had not violated any duty owed to plaintiff. In considering only the element of duty, the trial court was acting properly. The question of duty in a negligence case is a matter of law for the court. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617; Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E.2d 307.) The questions of breach of duty and proximate cause are questions for the jury. Too often, at the pleading stage, these distinctions become blurred. For a scholarly review of the problem and summation of the authorities, see Justice Jones’ concurrence in Lemings v. Collinsville School District Number Ten (1983), 118 Ill. App. 3d 363, 367-84, 454 N.E.2d 1139, 1141-52.

Grappling with the concept of duty much resembles juggling of quicksilver. The supreme court in Mieher stated:

“Professor Leon Green discusses foreseeability in distinguishing between the judge’s role in determining the duty owed and the jury’s role in determining the violation of the duty by stating:
‘[HJowever valuable the foreseeability formula may be in aiding a jury or judge to reach a decision on the negligence issue, it is altogether inadequate for use by the judge as a basis of determining the duty issue and its scope. The duty issue, being one of law, is broad in its implication; the negligence issue is confined to the particular case and has no implications for other cases. There are many factors other than foreseeability that may condition a judge’s imposing or not imposing a duty in the particular case, but the only factors for the jury to consider in determining the negligence issue are expressed in the foreseeability formula.’ Green, Foreseeability in Negligence Law, 61 Colum. L. Rev. 1401, 1417-18.
Thus, although foreseeability is generally accepted as the test to be applied by a jury in determining if a duty has been violated, in defining the scope of the duty, other elements must be considered by the court. See Comment, Automobile Design Liability: Larsen v. General Motors and Its Aftermath, 118 U. Pa. L. Rev. 299, 300 (1969).
Section 435 (2) of the Restatement (Second) of Torts provides: ‘The actor’s conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.’ Dean Prosser observed that this provision of the Restatement recognizes the basic idea ‘that liability must stop somewhere short of the freakish and the fantastic.’ (Palsgraf Revisited, 52 Mich. L. Rev. 1, 27.) The court in Larsen stated that the duty of the manufacturer was only to ‘use reasonable care to avoid subjecting the user of the product to an unreasonable risk of injury.’ (Emphasis added.) (391 F.2d at 502.) ‘Liability is imposed only when an unreasonable danger is created.’ 391 F.2d 495, 502 n.3.
It is apparent that the concept of duty in negligence cases is very involved, complex and indeed nebulous. The term is so ill-defined and its boundaries so indistinct that one commentator has observed: ‘There is a duty if the court says there is a duty.’ And he concluded that the court’s pronouncement often reflects the policy and social requirements of the time and community. Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15; see also Prosser, Law of Torts (4th ed. 1971) 325-326.” Mieher v. Brown (1973), 54 Ill. 2d 539, 544-45, 301 N.E.2d 307, 309-10.

Duty, then, being such an elusive element, comes to resemble pornography in the sense of the aphorism attributed to a Supreme Court justice who said that he could not give a definition of it, but he knew it when he saw it. Such monostichs may enliven judicial writing but are of little value in resolving issues. Thus, in the abstract, it may be safely said that every man has a duty so to conduct himself that he does not infringe upon the legal interests of another. However, this does nothing more than assume the very point in controversy. If that statement were the end of the matter, a court would have no function in shaping a negligence case.

Duty cannot be only a brooding omnipresence in the sky. It must be refined and connected to the specific facts presented in individual cases. In an effort to accomplish this, the courts have adopted a concept generally called the “scope of duty.” This relates, among other things, to the time, place, and circumstances of the incident which gave rise to the lawsuit, and is determined from all of the well-pleaded facts contained within the complaint.

In many instances the scope of duty is so obvious as to require no investigation or comment. For example: the Illinois Rules of the Road (Ill. Rev. Stat. 1983, ch. 951/2, par. 11—100 et seq.) particularize the general duty not to invade the interests of others on the highway. Section 11 — 701 requires that one drive on the right side of the roadway, with certain exceptions. Allegations of driving on the left side during heavy rush-hour city traffic would obviously eliminate any question of duty. However, doing the same thing on a lonely country road with no other traffic in sight would raise a scope of duty question. Compare Justice Jones’ example in Lemings v. Collinsville School District Number Ten (1983), 118 Ill. App. 3d 363, 383, 454 N.E.2d 1139, 1151-52.

In many other instances, duty and the scope of duty cannot be so readily ascertained. Section 285 of the Restatement (Second) of Torts (1965) indicates that there are at least four sources:

“The standard of conduct of a reasonable man may be
(a) established by a legislative enactment or administrative regulation which so provides, or
(b) Adopted by the court from a legislative enactment or an administrative regulation which does not so provide, or
(c) established by judicial decision, or
(d) applied to the facts of the case by the trial judge or the jury, if there is no such enactment, regulation, or decision.”

In the case at bar, the general duty of the defendants derives from common law as codified by statute:

“Our courts have long recognized that, in the absence of an act by the State which divests a local government of jurisdiction over a highway, a local government has an obligation to maintain public highways within its boundaries in a safe condition. (Hanrahan v. City of Chicago (1919), 289 Ill. 400; City of Sterling v. Thomas (1871), 60 Ill. 264; Linneen v. City of Chicago (1941), 310 Ill. App. 274; Livestock National Bank v. Richardson (1939), 303 Ill. App. 445; Tapscott v. City of Chicago (1939), 301 Ill. App. 322.) Section 3—102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1973, ch. 85, par. 3—102) (quoted earlier herein) codifies that obligation. (Horton v. City of Ottawa (1976), 40 Ill. App. 3d 544.) Included therein is the duty to warn motorists of dangerous conditions (Allen v. McCalman (1923), 229 Ill. App. 221; Wells v. Village of Kenilworth (1923), 228 Ill. App. 332), which is codified in section 3—104(b) of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1973, ch. 85, par. 3-104(b)):
‘(b) Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to provide traffic warning signals, signs, markings or other devices unless such a signal, sign, marking or device was necessary to warn of a condition which endangered the safe movement of traffic, and which would not be reasonably apparent to or anticipated by a person in the exercise of due care.’ ’’Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 450, 404 N.E.2d 213, 220.

Section 3—102(a) of the Local Governmental and Governmental Employees Tort Immunity Act, referred to in the Janssen opinion, provided:

“(a) Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in sufficient time prior to an injury to have taken measures to remedy or protect against such condition.” (Ill. Rev. Stat. 1973, ch. 85, par. 3—102(a).)

Both it, and section 3—104(b), also referred to in Janssen, remain unamended and unaltered today.

The general duty, then, is one of ordinary care, but it remains to be resolved what the scope of that duty was under the circumstances of this case. This, as indicated above, must be gleaned from the well-pleaded facts in the amended complaint.

We find that a fatal deficiency exists in such facts. In substance plaintiff alleged, as set forth above, that the cities should have provided left turn lanes on the occasion in question to allow eastbound traffic on Green to turn left unencumbered by westbound traffic on Green. This is a pure conclusion of the pleader. There are no facts alleged which would indicate, by inference or otherwise, that such lanes would have prevented the accident. In retrospect, it is always possible to find some thing or somebody which would have prevented any accident. It is equally plausible and arguable that the cities should have required plaintiff and her driver to remain without the city limits on the night in question.

Nor is there any allegation that the existing traffic control lights at the intersection were defective or not operating. In her brief plaintiff argues that the traffic control system was “inadequate.” This word is not mentioned in the amended complaint and if it were, its conclusional nature is obvious. In any event, defects in pleadings cannot be cured by argument. Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976.

In sum, there are no well-pleaded facts in the amended complaint which bring the plaintiff within the scope of the cities’ duty of ordinary care.

The parties have argued extensively in their briefs as to whether there is a duty on a city to provide more than functioning traffic control devices which create no danger at an intersection. We decline to be drawn into such a debate. The general duty of a city has already been discussed. It is firmly anchored in the common law and in the statute. What the scope of the duty is, including the placement of additional traffic control devices, must be determined in each case on its own facts. Generalizations could lead only to confusion and disorder in the law.

For the foregoing reasons, the order of the circuit court of Champaign County is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    MAYWOOD INDUSTRIES, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Porfirio Ponce De Leon, Appellee).
    First District (Industrial Commission Division)
    No. 1—84—0380WC
    Opinion filed August 22, 1984.
    Discipio, Martay, Caruso & Simard, of Chicago (Raymond M. Simard, of counsel), for appellant.
    No appearance for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The petitioner, Porfirio Ponce De Leon, filed a claim for benefits under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.). The claimant suffered an inguinal hernia while unloading freight during his employment with the respondent, Maywood Industries. The parties executed a stipulation sheet indicating that the only matters in dispute were the nature and extent of the injury and the petitioner’s eligibility for 92/7 weeks of temporary total disability.

The arbitrator awarded the petitioner the disputed temporary disability benefits and additionally awarded benefits for 71/2% of the whole person. The Industrial Commission reversed the award of permanent disability and found that the petitioner was still temporarily disabled at the time of the hearing before the Commission. Consequently, the Commission remanded the cause to the arbitrator for development of a plan for vocational rehabilitation. The circuit court of Cook County confirmed the Commission’s order on May 10, 1983. The respondent brings this appeal from the circuit court’s judgment.

The respondent raises four issues on appeal. We do not reach the merits of these issues, however, because the decision of the Industrial Commission was not a final, appealable order under International Paper Co. v. Industrial Com. (1984), 99 Ill. 2d 458.

The claimant in International Paper Co. was awarded benefits by the arbitrator for both total temporary and permanent partial disability. The Industrial Commission found that the claimant’s condition had not reached a state of permanency and therefore reversed the award for permanent partial disability. The Commission therefore remanded the cause to the arbitrator for a hearing on the question of vocational' rehabilitation. This remand was phrased in the general statutory language of section 8(a) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a)). The Commission's decision was confirmed by the circuit court.

On review, the Illinois Supreme Court noted that, because the cause was remanded, the Commission’s decision mandated further administrative proceedings. The court therefore found that the Commission’s decision was not a final appealable determination and that the circuit court had no jurisdiction to review the decision. The International Paper Co. court held that decisions of the Commission which include general rehabilitation awards requiring further proceedings are interlocutory.

The decision in International Paper Co. is dispositive of the case before us. In both International Paper Co. and the instant case, a finding of permanent partial was reversed and benefits were awarded instead for additional weeks of total temporary disability. In both cases, the cause was consequently remanded for hearings on vocational rehabilitation. Finally, in both cases, the remand was phrased only in the general language of the Act. The instant case falls squarely within the holding of International Paper Co.. We, therefore, find that the circuit court of Cook County did not have jurisdiction to review the decision of the Industrial Commission.

Accordingly, the judgment of the circuit court of Cook County is vacated and the cause remanded to the arbitrator for further proceedings.

Vacated and remanded.

SEIDENFELD, P.J., McNAMARA, WEBBER, and KASSERMAN, JJ., concur.


author: JUSTICE LORENZ JUSTICE LORENZ

text:
    THE CITY OF CHICAGO, Plaintiff, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY et al., Defendants-Appellees (Joan P. Whitmer, Intervening Plaintiff-Appellant).
    First District (5th Division)
    No. 83—2237
    Opinion filed August 17, 1984.
    Supplemental opinion filed on denial of rehearing September 28, 1984.

      Robert L. Graham, Richard J. Gray, and Ann C. Courter, all of Jenner & Block, of Chicago, for appellant.
    John D. Lien, Randall S. Rapp, and Robert M. Gordon, all of Wilson & McIlvaine, of Chicago, for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Petitioner Joan Whitmer appeals from an order denying her petition to intervene in this action for building code violations brought by the city of Chicago against owners and operators of the John Hancock Center. Petitioner challenges the trial court’s finding that her interests will be adequately represented, and claims that denial of her petition was an abuse of discretion. The following facts are pertinent to our disposition.

Plaintiff city of Chicago (city) filed its complaint on July 22, 1983, and alleged that defendants, John Hancock Mutual Life Insurance Company, Sudler & Company and Homeowners Association (hereinafter Condominium Association) failed to provide sufficient ventilation as required by the Municipal Code. Plaintiff seeks fines, injunctive relief, the appointment of a receiver and an order of demolition. Petitioner appeared at the first hearing in the case on August 16, 1983, and presented her petition to intervene along with her complaint. Petitioner alleges that she is a condominium owner in the Hancock Center and that her health, safety and property interests will be affected by the outcome of the case; she seeks declaratory and injunctive relief.

Although the city did not actively oppose the petition, the assistant corporation counsel posited at a hearing on September 13, 1983, that the city adequately represented the health and safety interests of its citizens. Defendants opposed the petition, arguing that petitioner’s property interest would be adequately represented by the Condominium Association and that intervention would unduly delay proceedings. Petitioner maintained that the city would not represent her particular health and safety interest and had failed to pursue discovery. She argued that the Condominium Association could not represent her because the association denied the existence of a violation whereas she sought to have the violation corrected. Petitioner stated that she would be prepared to go to trial on the date set, October 11, 1983.

The trial court denied the petition and stated that petitioner’s rights would be adequately represented by the city and by the Condominium Association. Petitioner appeals.

Opinion

Section 2—408 of the Code of Civil Procedure provides in pertinent part:

“(a) Upon timely application anyone shall be permitted as of right to intervene in an action: *** (2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action ***.
(b) Upon timely application anyone may in the discretion of the court be permitted to intervene in an action : *** (2) when an applicant’s claim or defense and the main action have a question of law or fact in common.” (Ill. Rev. Stat. 1983, ch. 110, pars. 2—408(a)(2), 2-408(b)(2).)

Intervention statutes are remedial in nature and should be construed liberally “to allow a person to protect an interest jeopardized by pending litigation to which he is not a party or to avoid relitigation in another suit of issues which are being litigated in a pending suit.” Ill. Ann. Stat., ch. 110, par. 2—408, Joint Committee Comments, at 462 (Smith-Hurd 1983); Bredberg v. City of Wheaton (1962), 24 Ill. 2d 612, 623, 182 N.E.2d 742.

Although courts have noted generally that intervention is committed to the sound discretion of the trial court (e.g., University Square, Ltd. v. City of Chicago (1979), 73 Ill. App. 3d 872, 877, 392 N.E.2d 136), we believe that intervention as of right should be distinguished from permissive intervention insofar as the exercise of discretion is concerned. The statute establishes a minimal “commonality” requirement for permissive intervention, and expressly commits the decision whether to allow intervention or not to “the discretion of the court.” (Ill. Rev. Stat. 1983, ch. 110, par. 2—408(b).) With respect to intervention as of right, however, the statute directs that a person “shall be permitted as of right to intervene” upon certain conditions. (Ill. Rev. Stat. 1983, ch. 110, par. 2—408(a).) We believe that the trial court’s discretion is limited to determining timeliness, inadequacy of representation and sufficiency of interest; once these threshold requirements have been met, the plain meaning of the statute directs that the petition be granted.

The instant petition was filed within weeks of the commencement of the action, at the first hearing in the matter, and was timely beyond any doubt. We find little merit in defendants’ contention that allowing petitioner to intervene would delay proceedings. The trial court is given broad power under the statute to prevent intervention from hampering or delaying the litigation (see Ill. Rev. Stat. 1983, ch. 110, par. 2—408(f)), and the record indicates that petitioner undertook diligent efforts to avoid delay, such as attending depositions, filing interrogatories and expediting disposition of the petition.

Further, we reject defendants’ argument that the denial of the petition was warranted because petitioner would not be bound by the final judgment in this action. Section 2—408 requires only that a party seeking to intervene “will or may be bound” (emphasis added) (Ill. Rev. Stat. 1983, ch. 110, par. 2—408(a)(2)), and it is settled that an enforceable right or tangible detriment fulfills the requirement. (See Adams v. County of Cook (1980), 86 Ill. App. 3d 68, 69-72, 407 N.E.2d 1018; Ill. Ann. Stat., ch. 110, par. 2—408, Joint Committee Comments, at 463 (Smith-Hurd 1983).) In City of Chicago v. Zik (1965), 63 Ill. App. 2d 445, 211 N.E.2d 545, this court reversed the denial of intervention in an action for building code violations and held that applicants’ leasehold interests justified intervention as of right. By comparison, petitioner’s ownership interest in the subject building is even more compelling. Regardless of the outcome of the litigation, the economic and possessory incidents of petitioner’s ownership will be affected, as for example, by conforming or nonconforming ventilation, higher assessments, or altered resale value.

The crucial issue, therefore, is whether petitioner’s interests are adequately represented by existing parties. Petitioner contends that the trial court erred in finding that her interests were represented by adverse parties. She argues further that the city’s representation is inadequate because its interest is in the public health and not petitioner’s health, and because the city’s representation has been ineffective. She maintains that the Condominium Association cannot represent her interest so long as it denies the existence of a violation. Defendants rejoin that the trial court was justified in finding that petitioner’s interest in health and safety was adequately represented by the city, and her property interest was adequately represented by the Condominium Association.

Adequacy of representation is a complex matter, not subject to hard and fast rules; rather, courts consider a variety of factors, including the extent to which the interests of the applicant and of existing parties converge or diverge, the commonality of legal and factual positions, the practical abilities of existing parties in terms of resources and expertise, and the vigor with which existing parties represent the applicant’s interests. (See Annot., 84 A.L.R.2d 1412 (1962).) Although these factors should be employed flexibly, “[t]he most important factor in determining adequacy of representation is how the interest of the absentee compares with the interests of the present parties.” 7A Wright & Miller, Federal Practice & Procedure sec. 1909, at 524 (2d ed. 1972).

Illinois courts have been sensitive to the importance of a careful comparison of interests, and some general principles have emerged from the cases. If the applicant presents a unique interest, the presumption or inference is that existing parties do not adequately represent such interest. (Adams v. County of Cook (1980), 86 Ill. App. 3d 68, 407 N.E.2d 1018.) Conversely where the applicant’s interest closely corresponds to that of an existing party adequate representation is inferred. (Elmhurst-Chicago Stone Co. v. Village of Bartlett (1975), 26 Ill. App. 3d 1021, 325 N.E.2d 412.) Where the interests of the applicant and an existing party are similar in some respects and different in others, the court should ask whether a reasonable person in the applicant’s position would rely upon the existing party for representation. Wert v. Burke (1964), 47 Ill. App. 2d 453, 197 N.E.2d 717.

Applying these principles to the case at hand, we must conclude that the representation of petitioner’s interest will or may be inadequate. Petitioner’s particular interest in the health of her family far exceeds the city’s interest in public health, and her property interest varies in significant respects from that of the Condominium Association. Therefore, the trial court’s order denying intervention on ground of adequate representation was error.

We believe that the reasoning employed in zoning cases applies here. Although the local government unit adequately represents the health, safety and welfare interests of the general public and of distant landowners (see, e.g., University Square, Ltd. v. City of Chicago (1979), 73 Ill. App. 3d 872, 392 N.E.2d 136; Elmhurst-Chicago Stone Co. v. Village of Bartlett (1975), 26 Ill. App. 3d 1021, 325 N.E.2d 412), our supreme court has consistently held that adjacent landowners are entitled to intervene because their particular interests extend beyond the public’s interest. (Anundson v. City of Chicago (1970), 44 Ill. 2d 491, 495-96, 256 N.E.2d 1; Bredberg v. City of Wheaton (1962), 24 Ill. 2d 612, 623-24, 182 N.E.2d 742.) Similarly, petitioner’s health and safety interest, by virtue of her possessory interest in a unit of the subject building, is more tangible and immediate than the interest of the public at large.

We find further support for our conclusion in interpretations of the analogous Federal intervention provision. (See Fed. R. Civ. P. 24(a)(2); Ill. Ann. Stat., ch. 110, par. 2—408, Joint Committee Comments, at 462 (Smith-Hurd 1983) (designed to be analogous).) In Trbovich v. United Mine Workers of America (1972), 404 U.S. 528, 30 L. Ed. 2d 686, 92 S. Ct. 630, the United States Supreme Court reversed the district court and held that a union member was entitled to intervene as a plaintiff in a suit between the government and his union, despite the fact that the Secretary of Labor was under a duty to represent union members’ interests as well as the public interest. The court noted that the burden was upon the applicant to show that representation may be inadequate, but that the burden “should be treated as minimal.” (404 U.S. 528, 538 n.10, 30 L. Ed. 2d 686, 694, 92 S. Ct. 630, 636.) The Trbovich court rejected the argument that the applicant’s interest was the same as union members generally, and drew a distinction between the Secretary charged with the public interest, and the applicant who sought to press his individual complaint. (404 U.S. 528, 536-39, 30 L. Ed. 2d 686, 693-95, 92 S. Ct. 630, 635-37.) Notably, the court did not even consider that the applicant’s interest might be represented by his union, an adverse party.

In Natural Resources Defense Council v. Costle (D.C. Cir. 1977), 561 F.2d 904, the court held that applicants, rubber and chemical companies, should have been allowed to intervene in a suit brought by environmentalists to force the Environmental Protection Agency (EPA) to promulgate regulations. Recognizing EPA’s good faith efforts in defending the suit and its interest in assuring that regulations would be lawful, the court stated that the differing scope of interests justified intervention. (561 F.2d 904, 912.) And in Smuck v. Hobson (D.C. Cir. 1969), 408 F.2d 175, parents were allowed to intervene on appeal where a school board declined to appeal. The court stated:

“The school board represents all parents within the district. The intervening appellants may have more parochial interests centering upon the education of their own children. While they cannot of course ask the Board to favor their children unconstitutionally at the expense of others, they like other parents can seek the adoption of policies beneficial to their own children. *** And the Board of Education, buffeted as it like other school boards is by conflicting public demands, may possibly have less interest in preserving its own untrammeled discretion than do the parents.” (408 F.2d 175, 181.)

In each of these cases, as in the zoning cases cited earlier, intervention was appropriate to protect a private interest notwithstanding the participation of a public body charged with representing a similar public interest.

Our careful consideration of the parties’ interests in this case convinces us that petitioner should have been allowed to intervene to protect her unique interest. The city is charged with enforcement of its building code, but it is restrained by its conception of the public interest, which in turn is shaped by competing pressures from a large and diverse constituency. As zealously as the city may represent the health and safety interests of its citizens, it is limited in its allocation of resources and priorities by the public fisc. (See generally Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv. L. Rev. 721, 745-46 (1968).) We note that the city initiated discovery several days before the scheduled trial date in the instant cause, and although the city apparently opposed the petition to intervene, it submitted no motion nor memorandum to guide the trial court in disposing of the matter.

The case for representation of petitioner’s interest by the Condominium Association is much weaker still. The Association denies the existence of a building code violation, and in what can only be seen as a study in understatement, characterizes its position relative to that of petitioner as “a difference of opinion.” We consider a difference of opinion as to the existence of the condition which forms the basis of the lawsuit to be a strong indication that differing interests are at work.

We believe that the Association’s representation of petitioner’s property interest is or may be inadequate, quite apart from their adverse positions concerning the health issue. Our comments about the generalized nature of the city’s interest have application here, also. An association is not simply the sum of its members, and the leadership of an association does not necessarily reflect the views of its members. (See Note, Associational Standing and Due Process: The Need for an Adequate Representation Scrutiny, 61 B.U. L. Rev. 174, 179 (1981).) We need not stretch imagination to anticipate that a choice from among alternative solutions to the disputed ventilation problem, such as structural modification, purchase of additional equipment or alteration of operation and maintenance parameters for existing equipment, will entail conflicts between associational property interests and petitioner’s property interest.

In contrast to the generalized interests represented by the city and the Condominium Association, petitioner claims direct health effects and integral property rights: her resources are narrowly focused upon admittedly selfish goals. We believe that differences in scope and intensity between the city’s public health interest and petitioner’s private health interest, and between the Association’s property interest and petitioner’s property interest, were and are meaningful so as to shed significant doubt on the adequacy of representation. Because petitioner’s claim of inadequate representation is reasonable and well founded, and because statutory requirements of timeliness and sufficiency of interest were met, we hold that the trial court erred in denying the petition to intervene. We need not reach the issue of discretionary intervention, and so we do not.

For the foregoing reasons, the order of the circuit court is reversed and this cause is remanded for further proceedings.

Reversed and remanded.

SULLIVAN and O’CONNOR, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE LORENZ

delivered the opinion of the court:

In their petition for rehearing, defendants maintain that this court failed to consider the statutory requirement that the petitioner for intervention “will or may be bound by an order or judgment in the action.” (Ill. Rev. Stat. 1983, ch. 110, par. 2—408(a)(2).) Although we believe that our analysis adequately addressed the issue, we take this opportunity to address new arguments presented by defendants’ petition, in the interests of fullness and finality. We note, however, that the trial court’s denial of the petition for intervention was based on the adequacy of representation.

Defendants argue that because we held petitioner’s interest was not adequately represented, petitioner will not and cannot be bound by an order or judgment in this action. This reasoning proves too much: If inadequate representation negated binding judgment as these two ideas are used in the statute, then no petitioner could qualify for intervention as of right, and the statute would be a nullity. More important are the circumstances of this case. Petitioner owns a condominium unit in a building which the city alleges to be unhealthful; the city seeks fines, injunctive relief, and even an order of demolition. Whether relief is granted or the status quo preserved, this adjudication will directly and substantially affect the quality of the air in the building, the expense of belonging to the association, and the physical components (possibly the existence) of the building. It strains credulity to say that petitioner may not be bound by an order or judgment in this action.

Yet defendants argue stridently that “will or may be bound” requires that the judgment be res judicata as to a petitioner for intervention, and that this court has erred in relaxing the standard to “an enforceable right or tangible detriment.” Defendants point to Sam Fox Publishing Co. v. United States (1961), 366 U.S. 683, 6 L. Ed. 2d 604, 81 S. Ct. 1309, which involved application of the predecessor Federal intervention rule in the context of a government antitrust suit. Defendants maintain that Sam Fox interpreted the rule upon which the Illinois intervention statute was founded, and that our reliance upon Federal cases interpreting the successor rule is misplaced.

Professor Sherman Cohn, then chairman of the Federal Bar Association Committee on Federal Rules and Procedure, stated with respect to the amendment of Fed. R. Civ. Pro. 24:

“The immediate motivation for the change in the rule was the Supreme Court’s decision in Sam Fox Publishing Co. v. United States. *** [T]he Court pointed out in Sam Fox that the two elements required by 24(a)(2) could never coexist and thus the section was a nullity in class actions.” (Cohn, The New Federal Rules of Civil Procedure, 54 Geo. L.J. 1204, 1230 (1966).)

Noting that the Sam Fox dilemma rendered intervention impossible in all suits involving representation of absent interests (54 Geo. L.J. 1204, 1230 n.106), Professor Cohn concluded:

“The new rule seems to have solved the res judicata problem under the old rule while retaining the requirement of inadequate representation. It appears to be more in line with the practice prior to the federal rules and with the original intent of the draftsmen and the court to codify and amplify that prac tice.” (Emphasis added.) (54 Geo. L.J. 1204, 1231.)

In other words, after Federal interpretation of the predecessor rule led down a logical cul-de-sac, the successor Federal rule returned to the path of common sense.

The Illinois supreme court never adopted the Sam Fox rationale, instead wisely and consistently treading the road to a practical civil procedure. Our supreme court interprets “will or may be bound” to require an interest greater than that of the general public, such that a party will stand to benefit or suffer by the legal operation of a judgment, but the court has rejected the requirement of a direct interest in the suit. (Caterpillar Tractor Co. v. Lenckos (1981), 84 Ill. 2d 102, 112, 417 N.E.2d 1343; Mensik v. Smith (1960), 18 Ill. 2d 572, 590, 166 N.E.2d 265; Dowsett v. City of East Moline (1956), 8 Ill. 2d 560, 567, 134 N.E.2d 793.) For reasons we will belabor no longer, petitioner for intervention has fulfilled this requirement.

Finally, returning to the adequacy of representation issue, defendants argue that our opinion will paralyze the city’s efforts to enforce the building code against condominium properties by requiring the city to join all unit owners. We observe that the city did not advance this argument on its own behalf. We do not believe that our opinion is subject to any such interpretation. We did not hold that a condominium association cannot represent its members, but merely stated that the association here did not represent the interest of this petitioner. Nor did we hold that unit owners were necessary parties, but only that a petitioner who undertakes the effort and expense to intervene should receive such consideration as the statute warrants. If another unit owner wishes to intervene, that person also must show that his or her interest is sufficient, and that such interest is inadequately represented by existing parties, including the present intervener. (See Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv. L. Rev. 721, 747 (1968).) In our view, the letter and spirit of the statute can only be advanced by allowing intervention in this case.

For the foregoing reasons defendants’ petition for rehearing is denied.

SULLIVAN and O’CONNOR, JJ., concur.


author: PRESIDING JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE FRAZIER, Defendant-Appellant.
    First District (3rd Division)
    No. 83—1155
    Opinion filed July 25, 1984.
    Deborah Liebow, of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Patrick Foley, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

Defendant, George Frazier, was found guilty of theft (Ill. Rev. Stat. 1983, ch. 38, par. 16—1(a)(1)), and he was sentenced to seven years in the Illinois Department of Corrections under the extended-term provision of section 5—8—2(a)(5) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005—8—2(a)(5)). We reverse and remand.

Although defendant had filed a jury demand, at the time the case was called for trial he chose to waive a jury and he requested a bench trial. The trial judge denied defendant’s request, stating:

“THE COURT: Let the record reflect there is a jury in the courtroom. The State’s witnesses have been sent for. This case has been set for trial and previously, there has always been a demand for a jury trial. We have gone to the trouble of getting a jury together. I think this notification comes too late. It is discretionary with the Court. There has heretofore been a demand for a jury, and I will deny the defendant’s request for a bench trial, and we will proceed to pick the jury.”

During the voir dire examination of the prospective jurors, the State used five of its peremptory challenges. All five of the persons excluded were blacks. In the process, the State excluded 100% of the available black jurors who were questioned during the voir dire proceedings. Thus, as a result of the State’s use of its peremptory challenges, defendant, who is black, was tried and convicted by an all-white jury of the theft of a white woman’s purse.

In his brief, in addition to his contention that his sentence was excessive, defendant contends that he was denied his right to a bench trial and that he was then denied the type of fair jury trial guaranteed by the United States Constitution because the State affirmatively frustrated his right to a jury drawn from a fair cross-section of the community by systematically excluding blacks from the jury solely because of their race.

The State did not file a brief. Instead, the State filed a petition confessing error on defendant’s contention that he was denied his right to a bench trial. Based on its confession of error, the State moved that we “vacate defendant’s conviction and sentence for theft and remand the case for a new trial.”

Plainly, the trial court erred in denying defendant’s request for a bench trial since the request was made before the commencement of trial. (See Ill. Rev. Stat. 1983, ch. 38, pars. 103—6, 115—1; People v. Spegal (1955), 5 Ill. 2d 211, 125 N.E.2d 468.) However, since the double jeopardy clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first trial (Burks v. United States (1978), 437 U.S. 1, 11, 57 L. Ed. 2d 1, 9-10, 98 S. Ct. 2141, 2147), we shall avoid the risk of subjecting defendant to double jeopardy by deciding whether the evidence adduced at trial was sufficient to sustain defendant’s conviction for theft. See People v. Taylor (1979), 76 Ill. 2d 289, 309, 391 N.E.2d 366, 375.

The victim testified that on April 28, 1982, at about 11:45 a.m., she was walking with a friend near the Garfield Park conservatory in Chicago when two men ran between them. One of the men grabbed at her purse. She attempted to hold on to it, but the strap of the purse broke, and the man ran off with the purse. The victim told her friend to call the police, and she ran after the man who had taken her purse. She followed him past a field to a street behind the conservatory. When the man crossed the street and ran into an alley, she stayed on the opposite side of the street parallel to the alley in an attempt to see the man between the buildings. She eventually lost sight of him, and she had started back to the conservatory when a police officer arrived. The victim gave a description of the man to the police officer. The police officer then accompanied the victim and her friend to look for the man in the area.

The victim further testified that she saw and identified the man on a sidewalk several blocks from the conservatory. When approached by the police squad car, the man started to run down a walkway between two buildings. The police officer chased him for about 20 feet until the suspect entered an alley. The police officer returned to his car and called in the description of the suspect and asked for assistance. Shortly thereafter, the police officer received a radio call from another police officer that a man fitting the description of the suspect was being held at a location on Springfield Street. The police officer and the two women proceeded to that location. When they arrived, defendant was being taken from a garage in handcuffs. The victim identified defendant as the man who had taken her purse. After the testimony of the victim, her friend and the two police officers, the State rested its case. The defense’s motion for a directed verdict was denied, and the defense rested. No other evidence was received.

Under the circumstances, we believe that the evidence at trial was sufficient for the trier of fact to conclude that defendant was guilty beyond a reasonable doubt. This does not mean that we are making a finding as to defendant’s guilt or innocence which would be binding on retrial, but rather, our consideration of the sufficiency of the evidence admitted at trial will remove the risk of subjecting defendant to double jeopardy. See People v. Taylor (1979), 76 Ill. 2d 289, 309, 391 N.E.2d 366, 375.

Defendant’s other contention, that the State unconstitutionally used its peremptory challenges to systematically exclude blacks from the jury solely because of their race, cannot go unnoticed. It has been stated that “the practice of excluding jurors on the basis of race is pervasive in Illinois and that it raises constitutional issues of the gravest dimension under two separate guarantees.” (People v. Moore (1984), 101 Ill. 2d 549, 560 (Simon, J., dissenting from denial of leave to appeal); see also Waltz, Now it’s Harder for Lawyers to Pick a Biased Jury, Chicago Sun-Times, July 13, 1982, at 30.) Moreover, two members of the United States Supreme Court have called the use of peremptory challenges by prosecutors to systematically exclude blacks from juries “one of the gravest and most persistent problems facing the American judiciary today.” (Williams v. Illinois (1984), 466 U.S. _, _, 80 L. Ed. 2d 836, 838, 104 S. Ct. 2364, 2366 (Marshall, J., dissenting, joined by Brennan, J.).) The Williams case was referred to when “the prosecutorial abuse of peremptory challenges” was recently described as a problem which “has grown to epidemic proportions in certain regions of the county.” (Harris v. Texas (1984), 467 U.S____, 82 L. Ed. 2d 858, 860, 104 S. Ct. 3556, 3558 (Marshall, J., dissenting).) In addition, five members of the United States Supreme Court have indicated that the systematic exclusion of blacks from jury service through the State’s use of peremptory challenges is so serious that it will merit the court’s review at a later date. See McCray v. New York (1983), 461 U.S. 961, 77 L. Ed. 2d 1322, 103 S. Ct. 2438 (opinion of Stevens, J., joined by Blackmun and Powell, JJ.) (dissenting opinion of Marshall, J., joined by Brennan, J.).

Under the circumstances, we believe that when the issue of a prosecutor’s systematic exclusion of citizens from jury service solely because of their race is raised, we should not cower but rather we should seize the high ground on the issue and discuss it freely and with conviction to the end that prosecutors are no longer permitted to systematically exclude citizens from serving on juries solely because of their race, gender or ethnicity. On this point, pursuant to the Illinois Constitution, article VI, section 17, Chief Justice Howard C. Ryan, on behalf of the Illinois Supreme Court, recently submitted to the General Assembly an annual report suggesting improvements in the administration of justice. The report, dated January 1, 1984, states:

“Nevertheless, we believe it important to reiterate what should be clear from our decisions: ‘[N]o one *** would disagree with the premise that the systematic exclusion of blacks for jury duty is unconstitutional and should be condemned. *** The systematic exclusion of any group based on sex or ethnicity is equally repugnant, but the most effective way to prevent this may be the drastic reduction of peremptory challenges.’ People v. Payne (1983), 99 Ill. 2d 135, 139, 140 (Clark, J., specially concurring).” Legislature Receives Report of Chief Justice, Ill. St. B.A., 14 Bench and Bar No. 9 (Mar. 1984).

Since the legislature has failed to do anything to solve the problem despite the exhortation from the highest level of the judiciary, it is apparent that “the judiciary must be vigilant to avoid the systematic exclusion of blacks from jury duty ***.” (People v. Payne (1983), 99 Ill. 2d 135, 140, 457 N.E.2d 1202, 1204 (Clark, J., specially concurring).) In this regard, we believe that we have an obligation to make it possible for defendants to track the appellate cases where it is alleged that prosecutors are systematically excluding blacks from jury service solely because of their race, and to make it possible for defendants to track the prosecutors who are involved in those cases so that defendants may determine whether the prosecutors are systematically excluding blacks from juries solely because of their race “in case after case.” (See Swain v. Alabama (1965), 380 U.S. 202, 223, 13 L. Ed. 2d 759, 774, 85 S. Ct. 824, 837.) If this relevant information is not available to defendants, the exacting test in Swain becomes illusory, for the test could hardly be applied, let alone satisfied.

It is therefore our belief that these cases should be disposed by published opinions which include the names of the prosecutors. On this premise, we believe that the present case has precedential value and should be disposed by a published opinion rather than by an unpublished order. (See 87 Ill. 2d R. 23.) The prosecutors representing the State in the trial of the present case were Gary Adair and William Gamboney. Of course, we pass no judgment and make no inference regarding their conduct or motive in the present case or in any other case.

We see no injustice to prosecutors in including their names in the published opinions since it is common practice to include the names of the attorneys and the parties they represent in the cases that are reported. In addition, we see no injustice to prosecutors in including their names in the published opinions of these cases since we presume, as did the court in Swain, “that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court.” (Swain v. Alabama (1965), 380 U.S. 202, 222, 13 L. Ed. 2d 759, 773, 85 S. Ct. 824, 837.) It follows that we can presume that the prosecutor should be able to prevail in any claim that he excluded blacks from jury service solely because of their race “in case after case” should he be called on the issue.

Of course, if a prosecutor does not prevail when called on the issue, then the prosecutor and the State must bear the heavy burden the charge entails. For the prosecutor, if he does not prevail, it could constitute a violation of his ethical and professional duty, for it is clear “that the systematic exclusion of blacks for jury duty is unconstitutional and should be condemned.” (Emphasis added.) (People v. Payne (1983), 99 Ill. 2d 135, 139, 457 N.E.2d 1202, 1204 (Clark, J., specially concurring); Legislature Receives Report of Chief Justice, Ill. St. B.A., 14 Bench and Bar No. 9 (Mar. 1984).) In this regard, it is worth reflecting on the fact that a prosecutor is the representative of all the people, including the defendant, and it is as much his duty to safeguard the constitutional rights of the defendant as those of any other citizen. (See People v. Lampkin (1983), 98 Ill. 2d 418, 430, 457 N.E.2d 50, 56; People v. Oden (1960), 20 Ill. 2d 470, 483, 170 N.E.2d 582, 588.) The duty of the prosecuting attorney is to seek justice, not merely to convict. (ABA Standards, The Prosecution Function 1.1(c) (1974); ABA Code of Professional Responsibility EC 7-13 (1979).) When a prosecutor systematically excludes blacks from jury duty solely because of their race, a practice which is condemned, he is not seeking justice. He is only seeking to convict. This is a clear violation of his ethical and professional duty.

There is another reason why we believe that this case should be disposed by published opinion rather than by an unpublished order. We note that the number of cases in which it is claimed that the State is using its peremptory challenges to systematically exclude blacks from juries solely because of their race continues to grow:

People v. Moore (1984), 121 Ill. App. 3d 1159 (Rule 23), appeal denied (1984), 101 Ill. 2d 549; People v. Yates (1983), 98 Ill. 2d 502, 456 N.E.2d 1369; People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220; People v. Cobb (1983), 97 Ill. 2d 465, 455 N.E.2d 31; People v. Davis (1983), 95 Ill. 2d 1, 447 N.E.2d 353; People v. Diaz (1984), 123 Ill. App. 3d 239, 462 N.E.2d 770; People v. Woods (1984), 122 Ill. App. 3d 176, 460 N.E.2d 880; People v. Kendricks (1984), 121 Ill. App. 3d 442, 459 N.E.2d 1137; People v. Pagliuca (1983), 119 Ill. App. 3d 906, 458 N.E.2d 908; People v. Fuller (1983), 117 Ill. App. 3d 1026, 454 N.E.2d 334; People v. McHerron (1983), 117 Ill. App. 3d 1022, 454 N.E.2d 331; People v. Bonilla (1983), 117 Ill. App. 3d 1041, 453 N.E.2d 1322; People v. McKinley (1983), 115 Ill. App. 3d 1095, 452 N.E.2d 43; People v. Logan (1983), 117 Ill. App. 3d 753, 453 N.E.2d 1317; People v. Withers (1983), 115 Ill. App. 3d 1077, 450 N.E.2d 1323; People v. Jones (1983), 114 Ill. App. 3d 576, 449 N.E.2d 547; People v. Gilliard (1983), 112 Ill. App. 3d 799, 445 N.E.2d 1293, rev’d (1983), 96 Ill. 2d 544; People v. Osborn (1983), 111 Ill. App. 3d 1078, 444 N.E.2d 1158; People v. Newsome (1982), 110 Ill. App. 3d 1043, 443 N.E.2d 634; People v. Turner (1982), 110 Ill. App. 3d 519, 442 N.E.2d 637; People v. Gosberry (1982), 109 Ill. App. 3d 674, 440 N.E.2d 954, rev’d (1983), 93 Ill. 2d 544; People v. Teague (1982), 108 Ill. App. 3d 891, 439 N.E.2d 1066; People v. Payne (1982), 106 Ill. App. 3d 1034, 436 N.E.2d 1046, rev’d (1983), 99 Ill. 2d 135, 457 N.E.2d 1202; People v. Batteast (1982), 105 Ill. App. 3d 1201 (Rule 23); People v. Dixon (1982), 105 Ill. App. 3d 340, 434 N.E.2d 369; People v. Belton (1982), 105 Ill. App. 3d 10, 433 N.E.2d 1119; People v. Gaines (1981), 88 Ill. 2d 342, 430 N.E.2d 1046; People v. Mims (1981), 103 Ill. App. 3d 673, 431 N.E.2d 1126; People v. Lavinder (1981), 102 Ill. App. 3d 662, 430 N.E.2d 243; People v. Clearlee (1981), 101 Ill. App. 3d 16, 427 N.E.2d 1005; People v. Vaughn (1981), 100 Ill. App. 3d 1082, 427 N.E.2d 840; People v. Tucker (1981), 99 Ill. App. 3d 606, 425 N.E.2d 511; People v. Allen (1981), 96 Ill. App. 3d 871, 422 N.E.2d 100; People v. Bracey (1981), 93 Ill. App. 3d 864, 417 N.E.2d 1029; People v. Smith (1980), 91 Ill. App. 3d 523, 414 N.E.2d 1117; People v. Fleming (1980), 91 Ill. App. 3d 99, 413 N.E.2d 1330; People v. Attaway (1976), 41 Ill. App. 3d 837, 354 N.E.2d 448; People v. Thornhill (1975), 31 Ill. App. 3d 779, 333 N.E.2d 8; People v. King (1973), 54 Ill. 2d 291, 296 N.E.2d 731; People v. Powell (1973), 53 Ill. 2d 465, 292 N.E.2d 409; People v. Petty (1972), 3 Ill. App. 3d 951, 279 N.E.2d 509; People v. Fort (1971), 133 Ill. App. 2d 473, 273 N.E.2d 439; People v. Butler (1970), 46 Ill. 2d 162, 263 N.E.2d 89; People v. Cross (1968), 40 Ill. 2d 85, 237 N.E.2d 437; People v. Dukes (1960), 19 Ill. 2d 532, 169 N.E.2d 84; People v. Harris (1959), 17 Ill. 2d 446,161 N.E.2d 809.

To appreciate the significance of the size of the above list, one should compare it with the first such list that appeared in People v. Gosberry only a short time ago. (People v. Gosberry (1982), 109 Ill. App. 3d 674, 682, 440 N.E.2d 954, 960, rev’d (1983), 93 Ill. 2d 544.) The rapidly increasing size of the list of cases in which it is claimed that the State is using its peremptory challenges to systematically exclude blacks from jury duty solely because of their race has caused one supreme court justice to state:

“In view of the staggering number of cases in this State raising this issue, I question whether it has not been established that prosecutors in Illinois have been purposely and systematically using peremptory challenges in case after case to achieve the exclusion of black persons from juries in a State having one of the largest populations of black persons in the nation.” People v. Gosberry (1983), 93 Ill. 2d 544, 554 (Simon, J., dissenting).

For the foregoing reasons, we believe that defendant’s contention that the State unconstitutionally used its peremptory challenges to systematically exclude blacks from the jury solely because of their race should not go unnoticed, and that the case should be reported as a published opinion. Racial discrimination within our criminal justice system is so plainly inimical to the American concept of fair trials and equal justice that we in the judiciary must expose its existence if it occurs to the end that our criminal justice system will be purged of discrimination by whatever legislative or judicial actions are necessary.

Accordingly, the judgment of conviction is reversed, and the case is remanded for a new trial.

Reversed and remanded.

McGILLICUDDY and WHITE, JJ., concur.

Appendix 1

Here, we note that several different methods have been suggested for attacking the problem, including:

(1) Reduce the number of peremptory challenges that are presently permitted for both the prosecutor and the defendant. See People v. Payne (1983), 99 Ill. 2d 135, 140, 457 N.E.2d 1202, 1204 (Clark, J., specially concurring); Legislature Receives Report of Chief Justice, Ill. St. B.A., 14 Bench and Bar No. 9 (Mar. 1984). “[The] American Bar Association’s year-old Standards Relating to Juror Use and Management call for lowered numbers of peremptory challenges because of the potential effect of Swain, among other reasons.” Riley, Selecting A Trial Panel: Whose Peers are They?, Nat’l L.J., Feb. 20, 1984, at 1, 23. However, it should be noted that on April 26, 1976, the United States Supreme Court entered an order recommending to Congress that the number of peremptory challenges permitted by the government and defendants be reduced but the recommendation was disapproved by Congress, and it never went into effect. See 18 U.S.C.A., Fed. R Grim. P. 24(b) (Supp. 1984).

(2) Ban the use of peremptory challenges of prospective jurors by both the prosecution and defense in criminal cases. See report in Chicago Sun-Times, Feb. 18,1983, at 16.

(3) Reduce the number of peremptory challenges for the prosecution substantially, but allow the defendant the same number of challenges that he is presently allowed. This would enable prosecutors to strike prospective jurors who might appear prejudiced against the State’s interest, but would not provide prosecutors enough challenges to systematically exclude prospective jurors as a class solely because of their race. At the same time, the defendant would be assured that his right to obtain a jury from a fair cross-section of the community remains intact. The idea of allowing the prosecutor fewer peremptory challenges than the defendant is not novel. As an example, under Fed. R. Grim. E 24(b), where the crime is punishable by more than one year’s imprisonment, the defendant is allowed 10 peremptory challenges and the government only 6. Historically, in 1865 the defendant was permitted by statute 20 peremptory challenges in capital and treason cases while the government was permitted only 5. Under the same statute, for other crimes, the defendant was permitted 10 peremptory challenges while the government was permitted only 2. 13 Stat. 500 (1865). Shortly thereafter, the defendant was permitted 10 peremptory challenges in all noncapital felony cases, and the government was permitted only 3. 17 Stat. 282 (1872). Later, the defendant was permitted 20 peremptory challenges in capital and treason cases, while the government was permitted only 6. Under the same statute, in all other felony cases the defendant was permitted 10 peremptory challenges, while the government was permitted only 6. 36 Stat. 287 (1911).

(4) Abolish the State’s right to peremptory challenges, but continue to allow the defendant to exercise peremptory challenges as has been done in England since 1305. See People v. Payne (1982), 106 Ill. App. 3 1034, 1039 n.4, 436 N.E.2d 1046, 1050 n.4, rev’d (1983), 99 Ill. 2d 135, 457 N.E.2d 1202.

(5) Require the circuit court clerks to record the race and sex of prospective jurors so that it could be determined whether prosecutors are systematically excluding jurors solely because of their race or gender. Such a bill was defeated in the Illinois House on April 4, 1984. See Lang, Chief Justice Ryan cites need for more defenders, Chicago Tribune, Apr. 6, 1984, sec. 2, at 7.

(6) Allow the trial court judge to require the prosecutor to demonstrate that he is not systematically excluding prospective jurors solely because of their race, gender or ethnicity when it reasonably appears to the trial judge that the prosecutor is using his peremptory challenges for that reason. See People v. Payne (1982), 106 Ill. App. 3d 1034, 1040, 436 N.E.2d 1046, 1050, rev’d (1983), 99 Ill. 2d 135, 457 N.E.2d 1202. “This is the same test as that used by the courts of California (People v. Wheeler (1978), 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890), Massachusetts (Commonwealth v. Soares (1979), 337 Mass. 461, 387 N.E.2d 499, cert, denied (1979), 444 U.S. 881, 62 L. Ed. 2d 110, 100 S. Ct. 170), and New Mexico (State v. Crespin (1980), 94 N.M. 486, 612 P.2d 716) for regulating the use of peremptory challenges by State prosecutors, and courts in those States have had no apparent difficulty in applying it.” People v. Payne (1982), 99 Ill. 2d 135, 149, 457 N.E.2d 1202, 1209 (Simon, J., dissenting). Commenting on this same procedure, one member of the United States Supreme Court, with approval of another member of the court, has stated: “Such a procedure *** appears to be quite workable. The California courts have indicated no difficulty in applying it. See, e.g., People v. Johnson, 22 Cal. 3d 296, 148 Cal. Rptr. 915, 583 P.2d 774 (1978); People v. Allen, 23 Cal. 3d 286, 152 Cal. Rptr. 454, 590 P.2d 30 (1979) (trial court errs in failing to require prosecution to demonstrate non-racial basis for exclusion); People v. Rousseau, 129 Cal. App. 3d 526, 179 Cal. Rptr. 892 (1982) (trial court correctly concluded that defendant failed to establish prima case); People v. Fuller, 136 Cal. App. 3d 403, 186 Cal. Rptr. 283 (1982),” McCray v. New York (1983), 461 U.S. 961, 969, 77 L. Ed. 2d 1322, 1326, 103 S. Ct. 2438, 2443 (dissenting opinion of Marshall, J., joined by Brennan, J.).

(7) Pass legislation making it unlawful during the voir dire examination of jurors “to exclude jurors solely because of race, sex, or national origin.” Editorial, Trial by (White) Jury, N.Y. Times, June 5, 1983, at 22E. Along this same line, in Brooklyn, New York, the District Attorney “has issued a directive to her staff that prohibits the use of peremptory challenges on the basis of race, religion, sex or national origin.” Margolick, State Court Upholds Peremptory Challenge to Jurors, N.Y. Times, Dec. 19,1982, at 23.

Appendix 2

Although the Illinois legislature has failed to do anything to address the problem of prosecutors using the State’s peremptory challenges to systematically exclude black citizens from jury duty solely because of their race, the deep-felt concern of the public in Illinois and elsewhere is readily apparent. To illustrate:

(1) “Illinois Chief Justice Howard C. Ryan, in his annual report on the state’s courts, made a suggestion we hope the general assembly will hasten to adopt. *** Ryan’s suggestion [to reduce the number of peremptory challenges that are now allowed] may provide an avenue around this problem. At the very least, it’s a start that we should make.” Editorial, A key to better juries, Chicago Sun-Times, Feb. 7, 1984, at 31.

(2) “The state legislature should act on Chief Justice Ryan’s suggestion [to reduce the number of peremptory challenges that are now allowed].” Editorial, The chief justice’s challenge, Chicago Tribune, Feb. 14,1984, sec. 1, at 12.

(3) “[I]t is time for the state legislature to review the whole practice of granting either party the right to challenge potential jurors without having to give a good reason. *** When a prosecutor, or for that matter a defendant, appears to be using the prerogative systematically to exclude blacks or women or low-income people from a jury, it gives the trial itself an unfortunate cast. Perhaps it is time to put a stop to the practice by eliminating the power, or to diminish the potential for abuse by reducing the number of challenges so that neither side can adopt a successful strategy of discriminatory exclusion.” Editorial, How to bias a jury, Chicago Tribune, Apr. 29,1983, sec. 1, at 20.

(4) “Must a judge sit by silent while a prosecutor does everything he can to keep blacks from serving on a jury? Yes, as the law now stands in most states. *** Well-meaning judges and lawyers condemn the blatant misuse of the peremptory strike but despair of finding a cure for subtler racism, more easily masked. Those difficulties are real but needn’t divert attention from finding a remedy for racially invidious use of peremptory challenges.

“In explaining their votes against examining the issue at this time, three Supreme Court members said they would watch to see how the states deal with it. The best way for New York to do so is by law. Several bills pending in Albany would make it unlawful to exclude jurors solely because of race, sex or national origin. New York should not shrink from the Court’s challenge. America’s commitment to root out racism requires rooting out this exception to equal protection and fair trials.” Editorial, Trial by (White) Jury, N.Y. Times, June 5, 1983, at 22E.

(5) “Should black jurors be excused from hearing cases just because they’re black? Of course not. Yet that’s been the pattern in Illinois in recent years, and the basis of more than two dozen appeals to higher courts.” Editorial, Peremptory injustice, Chicago Sun-Times, Apr. 25, 1983, at 27; see also Williams, Ruling hits bias injury exclusions, Chicago Sun-Times, May 20, 1982, at 1.

(6) “A contemptible form of racism is still practiced in courtrooms all over the United States — in open daylight and with the knowledge and consent of judges and attorneys. We speak of the peremptory challenge ***. *** What is the solution? That’s easy. Eliminate or radically modify the peremptory challenges, so that the judges, at least, can overrule a rejection that is obviously arbitrary or racist. *** Last week, the Illinois Court of Appeals failed to take action on this issue, claiming an alteration of the process should be handled by the state legislature. Alright then, let the legislature do the job. But by whatever means necessary, racism in the courts disguised as a legal propriety must be abolished.” Editorial, Racism in courtrooms, Chicago Defender, Dec. 9, 1982, at 13.

(7) “[T]he discriminatory pattern of jury selection involves more than a denial of equal opportunity. The law says every accused person is entitled to a trial by his or her peers — those who presumably share one’s language, lifestyle and basic experiences. Yet between the mass of blacks who wind up on trial in Chicago area courtrooms and the white suburbanites who judge them, there exists a vast gulf. One who has never lived in a ghetto is simply not a peer of the young man who has never lived anywhere else.” Editorial, Landmark decision, Chicago Defender, June 1, 1982, at 9.

(8) Recently, two nisi prius judges were quoted respectively as follows in a major American newspaper about their experiences with the problem of prosecutors systematically excluding blacks from jury service in Illinois solely because of their race: (1) “It’s an invidious discrimination,” “morally reprehensible”; and (2) the practice is “blatant” and “offensive.” Tybor, Justice in black and white, Chicago Tribune, May 22, 1983, sec. 19 (Perspective), at 1.

(9) “Other improvements to the court system will come through the association’s attention to what [the president of the Cook County Bar Association] considers one of the largest problems facing blacks— their exclusion from juries. ‘It’s just a burning issue with us,’ he said. ‘It’s not going to go away. . . The reason that it is so burning is that, when you look at it, it is the only area left where racial discrimination is still practiced openly. In the area of jobs. . .in the area of education, it would be unheard of.’ ” Tapp, Bar chief to tackle ‘burning’ issues affecting blacks, Chi. Daily L. Bull., June 20, 1984, at 1, 14.

       Defendant timely raised the objections in the trial court. In an appendix to his brief, defendant compares the backgrounds of the black prospective jurors who were excused by the prosecutor with the backgrounds of those persons who became jurors. Defendant argues that the record demonstrates that the blacks who were excluded are factually heterogenous and that the single distinguishing characteristic that the excluded blacks share is their race.

       We, of course, are bound by and would not deviate from the Illinois Supreme Court decision in People v. Payne (1983), 99 Ill. 2d 135, 457 N.E.2d 1202.

       See appendix 1 for a list of several different methods that have been suggested for attacking the problem. See appendix 2 for a showing of the pervasive concern of the public about the problem.


author: JUSTICE GREEN

text:
    THERESA ANN MEYER, Plaintiff-Appellant, v. MARION ALLEN, Defendant-Appellee.
    Fourth District
    No. 4—84—0150
    Opinion filed August 27, 1984.
    Roger L. Prillaman, of Urbana, for appellant.
    Moore & Associates, of Champaign, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On September 15, 1983, plaintiff, Theresa Ann Meyer, filed a complaint in the circuit court of Champaign County alleging that defendant, Marion Allen, had made certain defamatory remarks “of and concerning” plaintiff. Following a hearing held on January 23, 1984, the trial court granted defendant’s motion and dismissed the complaint with prejudice.

On appeal, plaintiff maintains that defendant’s remarks constitute slander per se and the trial court erred in applying the innocent-construction rule.

The complaint contained the following allegations. Plaintiff was a registered dietician with the American Dietetics Association and, prior to defendant’s allegedly defamatory remarks, she had enjoyed the esteem and good opinion of her neighbors. On December 18, 1982, defendant made certain remarks in the presence of 5 to 10 employees of the Family Tree Health Care Center (Center). Defendant, as paraphrased, stated: “[Plaintiff] left us at a bad time. She left us in a bad position. She left the kitchen in a dirty condition. She resigned without reason.”

The complaint also alleged that (1) defendant made the foregoing remarks even though plaintiff was “involuntarily terminated” from her employment at the Center, and (2) during her employment at the Center from March 23, 1982, to December 17, 1982, plaintiff had fulfilled her “professional duty” to properly maintain the Center’s kitchen in a “clean and sanitary manner in accordance with corporate, state, and federal standards.”

Counts I and II of the complaint contain virtually the same allegations. Count I requests general damages. Count II further alleges that plaintiff was terminated from her employment because she was pregnant and defendant made the allegedly defamatory remarks in order to “create a pretext” for plaintiff’s absence. Count II requests punitive, as well as compensatory, damages.

Plaintiff does not aver any special damages and, thus, her right to recover rests upon whether the allegedly defamatory statements are actionable per se. Fried v. Jacobson (1983), 99 Ill. 2d 24, 457 N.E.2d 392.

Plaintiff alleges that defendant’s remarks were defamatory because (1) such remarks indicate that she was “professionally unreliable” in that she voluntarily left her employment without reason at a time when she was needed and failed to properly maintain the Center’s kitchen in a “clean and hygienic manner,” and (2) plaintiff was prejudiced in her profession as a registered dietician by such remarks. Allegations that a statement (1) falsely imputes plaintiff’s inability to perform or want of integrity in the discharge of duties of her office or employment, and (2) falsely prejudices plaintiff in her profession or trade are sufficient to support a defamation action against the person making the statement. (Whitby v. Associates Discount Corp. (1965), 59 Ill. App. 2d 337, 207 N.E.2d 482.) Accordingly, we must determine whether defendant’s remarks imputed to plaintiff an inability to perform the duties of her employment or prejudiced plaintiff in her profession.

In making this determination, we must apply the innocent-construction rule as set forth by the supreme court in Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195. In Chapski, the supreme court stated:

“[A] written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se. This preliminary determination is properly a question of law to be resolved by the court in the first instance.” 92 Ill. 2d 344, 352, 442 N.E.2d 195,199.

Applying the Chapski innocent-construction rule to. the facts before us, we conclude that the allegedly defamatory statement may reasonably be read as not imputing a lack of ability on plaintiffs part and as not prejudicing plaintiff in her profession. We believe that defendant’s remarks, considered in context, indicate that (1) plaintiff chose to resign from her employment position without stating a reason for doing so, (2) plaintiff resigned at an inconvenient time for her employer, and (3) at the time plaintiff left, the Center’s kitchen was dirty. Defendant did not say that plaintiff had no valid reason for leaving or that plaintiff had consistently failed to keep the Center’s kitchen clean in the past or would not have kept it clean in the future. Because the remarks do not impute to plaintiff an inability to perform the duties of her employment and do not prejudice plaintiff in her profession, we conclude defendant’s remarks are not actionable as a matter of law.

For the reasons stated herein, we affirm.

Affirmed.

MILLS, P.J., and MILLER, J., concur.


author: PRESIDING JUSTICE MILLS

text:
      In re ESTATE OF DEAN BISHOP, Deceased (LeRoy State Bank, Ex’r and Trustee of the Estate of Dean Bishop, Deceased, Petitioner, v. Rose Blunk et al., Respondents-Appellants; Trustees of LeRoy Presbyterian Church et al., Respondents-Appellees).
    Fourth District
    No. 4—84—0049
    Opinion filed September 5, 1984.
    Rehearing denied October 2, 1984.

      Marvin H. Gesell, of Arnold, Gesell & Schwulst, of Bloomington, for appellants.
    Neil F. Hartigan, Attorney General, of Springfield, pro se (Edward M. Kay, Assistant Attorney General, of counsel), for appellee Attorney General.
    Thomas M. Barger, Jr., of Livingston, Barger, Brandt & Schroeder, of Bloomington, for other appellee.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Collateral attack.

An order amending will.

Four years, 10 months later.

Motions to dismiss allowed.

We affirm.

The original proceedings in this matter were commenced on January 3, 1977. On that date, the LeRoy State Bank, as trustee under the will of Dean Bishop, filed a petition in the circuit court to amend the will.

The petition sought to amend the terms of a testamentary trust so that the trust would qualify as a charitable remainder unitrust under section 664 of the Internal Revenue Code (I.R.C. sec. 664 (1977)). One of the more significant amendments to the trust was that the annuity paid to the income beneficiaries was to be fixed at 5% of the net fair market value of the trust assets. The will had originally provided that all of the net returns of the trust corpus were to be paid to the income beneficiaries.

The income beneficiaries and the LeRoy Presbyterian Church were named as respondents in the petition. All of the named respondents signed written appearances which consented to an immediate hearing without notice on the bank’s petition. A decree amending the will in accordance with the petition was entered on January 3, 1977.

The bank filed its final report as executor on June 5, 1979. All of the income beneficiaries signed forms acknowledging receipt of the final report, waiving notice of the report and consenting to the approval of the report. The bank was discharged as executor, and the estate was closed on June 21, 1979.

On November 16, 1981, the income beneficiaries (respondents here) filed a motion to vacate the decree amending the will. Respondents argued that the bank’s failure to obtain their consent to the amendment to the will deprived the circuit court of subject matter jurisdiction and, therefore, the decree amending the will was void.

The Attorney General of the State of Illinois and the LeRoy Presbyterian Church filed motions to dismiss respondents’ motion to vacate. The circuit court allowed the motions to dismiss and respondents have appealed.

Respondents’ motion to vacate the decree amending the will was filed 4 years and 10 months after the decree was entered and thus constitutes a collateral attack on the decree. (See Federal Sign & Signal Corp. v. Czubak (1978), 57 Ill. App. 3d 176, 372 N.E.2d 965.) The attack is grounded on the contention that the decree was void for lack of subject matter jurisdiction in the circuit court. See, e.g., Federal Sign & Signal Corp. v. Czubak (1978), 57 Ill. App. 3d 176, 372 N.E.2d 965; Irving v. Rodriquez (1960), 27 Ill. App. 2d 75, 169 N.E.2d 145.

Respondents contend that the circuit court lacked subject matter jurisdiction because the bank failed to obtain respondents’ consent to amend the will pursuant to section 1(2) of “An Act to conform certain charitable trusts to the requirements of the Federal Tax Reform Act of 1969” (Charitable Trusts Act) (Ill. Rev. Stat. 1981, ch. 148, par. 51(2)). The Charitable Trusts Act allows a trustee to amend a trust to bring it into conformity with the requirements for a charitable remainder unitrust under section 664 of the Internal Revenue Code. Section 1(2) of the Act states: “[T]he trustee before making any amendment under subparagraph (d) shall first obtain the consent of all noncharitable beneficiaries whose interests have not expired.” Respondents characterize the consent requirement of section 1(2) as a “jurisdictional fact” which must be shown of record and without which the circuit court had no subject matter jurisdiction.

On the nature and scope of subject matter jurisdiction, no lengthy excursus is needed here. The history of jurisdiction, as chronicled in In re Estate of Mears (1982), 110 Ill. App. 3d 1133, 443 N.E.2d 289, provides all the groundwork necessary for resolution of the issue before us.

In Mears, this court observed that under article VI, section 9, of the Illinois Constitution of 1970, the jurisdiction of the circuit court is no longer dependent upon statutes and derives from the constitution itself. (See also In re L.E.J. (1983), 115 Ill. App. 3d 993, 451 N.E.2d 289.) We said in Mears, “No longer do we seek statutory justification for the exercise of jurisdiction; rather the inquiry must be whether there exists a justiciable controversy, and if so, are there any statutory conditions precedent to judicial intervention.” 110 Ill. App. 3d 1133, 1138, 443 N.E.2d 289, 293.

The bank’s petition to amend the will clearly created a justiciable controversy. Black’s Law Dictionary defines “justiciable controversy” in part as “[a] question as may properly come before a tribunal for decision.” (Black’s Law Dictionary 777 (5th ed. 1979).) Matters relating to trusts have traditionally been resolved by the courts. Our supreme court has observed that, “One of the oldest heads of chancery jurisdiction is the execution and control of trusts and trust funds.” Maguire v. City of Macomb (1920), 293 Ill. 441, 453, 127 N.E. 682; see also Hopkins v. Granger (1869), 52 Ill. 504.

Having determined that the petition to amend the will created a justiciable controversy, we need make no further inquiry. The circuit court had subject matter jurisdiction over all justiciable controversies, and the petition to amend the will created a justiciable controversy. Therefore, the trial court had subject matter jurisdiction, and its decree cannot be collaterally attacked.

The bank’s alleged failure to comply with the Charitable Trusts Act by obtaining the respondents’ consent to the amendment of the trust has no effect on the circuit court’s jurisdiction. While the legislature may impose statutory conditions precedent to the exercise of the circuit court’s jurisdiction, the consent requirement of section 1(2) of the Charitable Trusts Act was not such a condition.

There is no suggestion whatsoever in section 1(2) of the Charitable Trusts Act that the legislature intended the consent of the beneficiaries to be a condition precedent to the exercise of the circuit court’s jurisdiction. Section 1(2) makes no reference to court proceedings in this context. The consent requirement is merely a limitation on the trustee’s power to amend the trust. It is not a condition precedent to the exercise of the circuit court’s jurisdiction.

Even if a statutory condition precedent had not been met in the present case, such an omission would be merely a procedural defect, not jurisdictional. (See Watt v. Farmers State Bank & Trust Co. (1979), 71 Ill. App. 3d 455, 389 N.E.2d 947; Lopin v. Cullerton (1977), 46 Ill. App. 3d 378, 361 N.E.2d 6.) The court’s decree would have been erroneous and subject to reversal on a direct appeal, but it would not be void for lack of subject matter jurisdiction and would not be subject to a collateral attack.

Having found that the circuit court had subject matter jurisdiction to hear the bank’s petition to amend the will, we hold that the circuit court properly dismissed respondents’ motion to vacate the decree amending the will.

Affirmed.

GREEN and WEBBER, JJ., concur.


text:
    DORIS SIDWELL, Plaintiff-Appellee, v. ROY SIDWELL, Defendant-Appellant.
    Fourth District
    No. 4—84—0162
    Opinion filed August 27, 1984.

      Roy Sidwell, of Greenup, for appellant, pro se.

    Harlan Heller and Brent D. Holmes, both of Harlan Heller, Ltd., of Mattoon, for appellee.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

“There are some things that are merely a concession to the shortness of life!”

— Justice Holmes

There simply must be an end to all litigation — and we have reached it in this acrimonious saga!

This vindictive divorce has been on the books for over 20 years— since February 4, 1964 — and has generated five reviewing court decisions until now.

This is the sixth!

In all of this time and in all of these judicial machinations, 11 appellate court justices have been involved — 8 regular and 3 temporarily assigned.

The Sidwell odyssey has consumed untold months of legal and judicial exertion, two decades of bitterness and recrimination, and — in the process — nearly dissipated the marital assets. It is reminiscent of Jamdyce v. Jamdyce, as chronicled in Dickens’ “Bleak House.”

Let us briefly review this tiresome tale.

I

On February 4, 1964, Doris Sidwell filed a complaint for divorce and injunction in Cumberland County to which Roy Sidwell filed a counterclaim for divorce. A related suit for separate maintenance was also filed by Doris in Clark County. When the Cumberland County circuit court denied Doris leave to amend her complaint and denied a divorce to either party, and the trial court in Clark County dismissed Doris’ suit for separate maintenance, she appealed and Roy cross-appealed. Sidwell v. Sidwell (1966), 75 Ill. App. 2d 133, 220 N.E.2d 479 (Sidwell I).

In Sidwell I, this court reversed and remanded the Cumberland County proceeding because the trial court erred in considering incompetent evidence on the question of whether to grant a divorce to Doris. Doris was also permitted to amend her complaint to add an additional count for separate maintenance — which rendered the dismissal of the Clark County case moot. Finally, the court found no merit to Roy’s cross-appeal.

II

The multivarious events occurring over the course of three years following remand precipitated the second appeal by Doris. In Sidwell v. Sidwell (1971), 132 Ill. App. 2d 1055, 271 N.E.2d 115 (Sidwell II), Roy was permitted to reopen his case to present further evidence, after which Doris was again denied a divorce and her complaint was dismissed for want of equity. Instead of appealing, however, Doris engaged in a protracted set of post-judgment motions which variously sought permission of the court to reopen her case, to file an amended complaint, and to restrain Roy from proceeding on a separate divorce petition filed by him in another State. In these efforts Doris was largely unsuccessful, as the trial court continually denied or failed to rule on her motions for reconsideration and injunction.

After a substantial period of inactivity, Doris sought leave to file an amended petition for the purpose of adjudicating property rights, alimony, and attorney fees, because Roy had secured an ex parte divorce in Arkansas. The trial court denied leave to file her petition, prompting Doris to appeal. In Sidwell II, this court concluded that the trial court erred in denying Doris her divorce but that she failed to perfect this issue by not filing a timely notice of appeal. The case was nevertheless reversed and remanded again with directions to permit Doris to file her petition to adjudicate property rights of the parties.

III

Upon remand from Sidwell II, summary judgment was granted to Doris on her petition. Roy was ordered to convey certain farmland to her and, in addition, Doris was awarded $20,000 in attorney fees. From this judgment Roy took an appeal. Sidwell v. Sidwell (1975), 28 Ill. App. 3d 580, 328 N.E.2d 595 (Sidwell III).

In Sidwell III, this court determined that summary judgment was not proper because there was conflicting evidence giving rise to a question of material fact on Doris’ allegations of special equities in Roy’s property. The cause was remanded with directions for further consideration of the question of special equities and alimony. This court also affirmed the award of attorney fees to Doris for the legal expenses she had incurred for 10 years between 1964 and 1974.

IV

The case was redocketed in the trial court and further evidence was taken. Doris was awarded alimony in gross but denied attorney fees for the defense of the appeal in Sidwell III. From this finding, Doris appealed. Sidwell v. Sidwell (1978), 58 Ill. App. 3d 33, 373 N.E.2d 814 (Sidwell IV).

This court again held that the trial court erred in considering matters other than those which it was directed to consider and that it had improperly denied Doris attorney fees for the appeal of Sidwell III.

In Sidwell IV, we remanded with directions that an order be entered providing for an equal division of the property and liabilities of the parties acquired during the marriage. The trial judge was directed that if the parties were unable to agree on an equitable division, each was to be required to submit a plan for division in equal shares. The trial court was then to choose one of the plans and the party whose plan was not approved was to have first choice of either portion of the property. The trial court was also directed to award additional attorney fees to Doris for the appeal of Sidwell III without further hearings.

V

Following the fourth remand from this court, two successive plans for property distribution submitted by Doris were initially confirmed but then vacated on Roy’s motions. A third plan, however, was confirmed and Roy’s subsequent motion to vacate was denied, as was a post-judgment motion. Doris was awarded additional attorney fees, and Roy appealed. Sidwell v. Sidwell (1981), 102 Ill. App. 3d 56, 429 N.E.2d 539 (Sidwell V).

In Sidwell V, Roy argued that the plans submitted by Doris and approved by the trial court did not comply with the mandate of this court in Sidwell IV and that he did not have notice of entry of the order. The trial court had rejected these arguments and, upon consideration of the merits, so did we. Characterizing Roy’s conduct as an attempt to delay and hinder an equitable division of the property, this court held that the order dividing the property as adopted by the trial court was a just and reasonable disposition despite Roy’s claim of procedural and substantive infirmities. The trial court’s further award of attorney fees was also upheld, and this time the judgment was affirmed without remand.

Undaunted by the lack of a remand order from Sidwell V, on January 27, 1983, Roy filed a petition for relief under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2—1401). Thereafter, Doris filed a motion to dismiss and for attorney fees. The trial court dismissed Roy’s petition, and upon an affidavit in support of attorney fees (to which no objection was lodged), the court ordered Roy to pay additional attorney fees in the amount of $1,231.50.

It is from this judgment that this sixth pro se appeal has been taken by Roy.

VI

Insofar as the instant appeal is concerned, only the factual milieu surrounding the events described in Sidwell V is pertinent. The order from which Roy sought relief was the order entered by the trial court confirming the third plan for the division of marital property submitted by Doris. Roy contends that the order was entered without his knowledge on August 27, 1980, by the trial judge at a time when the court was aware that Roy was no longer represented by his then trial counsel. Roy maintains that even though Judge Sunderman, when confronted initially, indicated that the order approving the distribution would be vacated, he nevertheless subsequently refused to do so. These matters were brought to the attention of the trial court in Sidwell V by two separate motions attacking the order of August 27, 1980. These precise issues were also raised on appeal in Sidwell V and decided adversely to Roy at that time.

In his pro se brief, Roy again requests that we reconsider the circumstances surrounding the entry of the order of the trial court confirming the property distribution plan. Indeed, Roy exhorts that we re-examine the entire history of this 20-year odyssey which the parties have doggedly pursued with great personal acrimony toward each other. For her part, Doris seems content to argue that the trial court properly dismissed Roy’s final petition because these same matters have been adjudicated on prior occasions by both the trial court and this court.

Statute Of Limitations

We believe, however, that a more fundamental defect precludes any review of the prior litigation. Section 2—1401(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2—1401(c)) provides:

“The petition must be filed not later than 2 years after the entry of the order or judgment. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.”

This two-year period of limitations has been strictly construed by the courts, and we cannot, even if the circumstances were believed to warrant it, extend this limitation by judicial fiat. Johnson v. Hawkins (1972), 4 Ill. App. 3d 29, 280 N.E.2d 291; Estate of Arcicov (1968), 94 Ill. App. 2d 122, 236 N.E.2d 365; Athletic Association of the University of Illinois v. Crawford (1963), 43 Ill. App. 2d 52, 192 N.E.2d 556; Agorianitis v. Ress (1977), 55 Ill. App. 3d 325, 371 N.E.2d 10.

The original order confirming the third plan submitted by Doris was entered on August 27, 1980. The docket sheet indicated that a “judgment order” was subsequently entered on September 2, 1980. Thereafter, Roy filed a motion to vacate and after a hearing on October 21, 1980, a detailed judgment order was entered setting forth the specific distribution of assets and liabilities between the parties. A second post-trial motion was filed by Roy on November 19, 1980, and denied on March 16, 1981. (Sidwell v. Sidwell (1981), 102 Ill. App. 3d 56, 429 N.E.2d 539 (Sidwell V).) The petition for relief from judgment was not filed until January 27, 1983.

Upon this chronology it is, accordingly, clear that Roy’s petition was not filed within the two-year period of limitations. Irrespective of whether we consider the August 27 or the October 21 order to be the order or judgment within the meaning of section 2 — 1401 of the Code, the petition for relief is untimely. The supreme court has held that the two-year limitation mandated by this section must be adhered to in the absence of a clear showing that the person seeking relief is under legal disability or duress or the grounds for relief are fraudulently concealed. (Crowell v. Bilandic (1980), 81 Ill. 2d 422, 411 N.E.2d 16; People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649.) Moreover, the fact that a post-judgment motion or an appeal may be pending does not serve to toll the period of limitation. See People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649.

Finally, even were we to consider the allegations of the petition to loosely allege fraud in the entry of the order, the result would not change, for, as this court has stated, it is manifestly obvious that all claimed fraud should not render a decree subject to collateral attack. If this were so, there would be no finality to any judgment. See Johnson v. Hawkins (1972), 4 Ill. App. 3d 29, 280 N.E.2d 291; see also Crowell v. Bilandic (1980), 81 Ill. 2d 422, 411 N.E.2d 16.

In sum, the petition for relief was filed too late. It was therefore properly dismissed by the trial court — although for reasons other than those here assigned.

Fees

The final issue is the propriety of the award of attorney fees to Doris. The record indicates an affidavit of services rendered was filed with the trial court. There is no indication that Roy filed any formal objection. From the record before us, we cannot conclude that the trial court abused its discretion in awarding fees.

For the reasons expressed above, the judgment of the circuit court of Cumberland County is hereby affirmed.

Affirmed.

GREEN and MILLER, JJ., concur.