dissenting:
I must respectfully dissent.
The majority suggests that the Village of Glenview is guilty of laches in failing to bring discharge proceedings against the plaintiff within a reasonable time after the incident rather than wait for the decision in the Federal civil rights proceeding.
The majority cites, with some irony, Tally v. State of Illinois (1991), 143 Ill. 2d 425, 574 N.E.2d 659, for its definition of laches. The Tally case dealt with laches attributable to an individual rather than a unit of government. The doctrine of laches or estoppel1 must be applied with great caution to government and its officials. Such defenses apply to public bodies only under the most unusual circumstances. (Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 220 N.E.2d 415.) Generally, in applying such doctrines, the courts will not decide such questions by mere lapse of time but rather by all the circumstances of the case and will hold the public estopped only as right or justice may require. City of Quincy v. Sturhahn (1960), 18 Ill. 2d 604, 165 N.E.2d 271.
Accordingly, Tally, which looks at the inaction of a private individual, cannot be the standard for developing the defense of laches against a public body. Only one Illinois case has recognized the doctrine of laches as a bar to discharge of a public employee. (Mank v. Board of Fire & Police Commissioners (1972), 7 Ill. App. 3d 478, 288 N.E.2d 49.) Mank held that charges involving undue force used by a police officer were barred by laches where the charges were filed 39 to 44 months after the incident occurred. However, such recognition of laches was found appropriate only after a review of the evidence indicated conflicting testimony as to what had occurred and that such testimony depended upon recollection and several witnesses were not available. Accordingly, laches was available only where the length of time would be sufficient to cause prejudice where resolution of the factual dispute was solely dependent upon recollection.
In two other public employee discharge cases, the courts rejected the defense of laches. (Bultas v. Board of Fire & Police Commissioners (1988), 171 Ill. App. 3d 189, 524 N.E.2d 1172; Monroe v. Civil Service Comm’n (1965), 55 Ill. App. 2d 354, 204 N.E.2d 486.) In Bultas, the defense of laches was rejected where the complaint was instituted two years after the incident and the plaintiff did not contend that the delay contributed to the unavailability of any material witness and all of the witnesses had the benefit of reviewing prior written statements, none testifying doubtfully or with equivocation as to the incident at issue.
Similarly, the Monroe court determined that there was no change in the subject matter of the suit or in the relation of the parties resulting in any disadvantage to the plaintiff by reason of the 27-month delay in asserting the city’s claim; nor was there any loss or obscurity in the evidence which would have prevented the plaintiff from presenting his defense.
The prejudice which a party must suffer relates to his ability to properly participate in the administrative proceedings and not merely that he was lulled into a false sense of security by the inaction of the public body.
I cannot deny that the plaintiff, had he known at the time of the incident that his position on the force would be threatened, would not have sought different employment or considered a different career track. But as the court determined in Monroe, the plaintiff, there as here, remained in public employment and was paid for his services.
The majority seeks to cast a shadow on the defendant’s motives in awaiting the outcome of the Federal civil rights action. However, in People ex. rel. Casey v. Health & Hospitals Governing Comm’n (1976), 37 Ill. App. 3d 1056, 347 N.E.2d 261, the court determined that public employees who awaited the result of a suit brought by a fellow employee and predicated upon similar circumstances did not bar their claim for reinstatement although almost two years had passed from the time of discharge.
In considering this issue, the court in Casey said “ ‘[a] dismissed government employee acts reasonably, and is not guilty of laches, if he awaits the result of a suit by another employee who was dismissed in similar circumstances.’ ” Casey, 37 Ill. App. 3d at 1059, 347 N.E.2d 261, quoting Duncan v. Summerfield (D.C. Cir. 1957), 251 F.2d 896, 897.
Even under the standard in Tully it is difficult to discern from the majority opinion any prejudice that the plaintiff has suffered. The mere lapse of time does not, in and of itself, rise to the level of prejudice resulting from delay.
I would, therefore, consider the other issues raised by the plaintiff to determine whether this court should reverse and remand to the trial court.
The doctrine of equitable estoppel is one which precludes a person from acting or asserting a right which he otherwise might do. The doctrine of equitable estoppel has been applied against municipal corporations; however, such a finding against a public body is not favored. (Lindahl v. City of Des Plaines (1991), 210 Ill. App. 3d 281, 295, 568 N.E.2d 1306.) The doctrine has two prerequisites: (1) the affirmative act on the part of the municipality and (2) inducement of substantial reliance by the affirmative act. The affirmative act, however, must be one which induces plaintiffs reliance and must be enacted by the municipality itself, such as legislation, rather than the unauthorized act of a ministerial officer. Lindahl, 210 Ill. App. 3d at 295.
Accordingly, the encouragement by the Glenview police chief would not be the kind of affirmative act imputed to a municipality. People ex rel. Village of Hazel Crest v. Village of Homewood (1985), 132 Ill. App. 3d 632, 478 N.E.2d 426; VonBokel v. City ofBreese (1981), 100 Ill. App. 3d 956, 427 N.E.2d 322; Amalgamated Trust & Savings Bank v. Village of Glenview (1981), 98 Ill. App. 3d 254, 423 N.E.2d 1230. But see Wheeling Trust & Savings Bank v. City of Highland Park (1981), 97 Ill. App. 3d 519, 423 N.E.2d 245; Forest Preserve District v. Illinois Local Labor Relations Board (1989), 190 Ill. App. 3d 283, 546 N.E.2d 675.