author: JUSTICE SCARIANO.

text:
    J.P. SCHERMERHORN et al., Plaintiffs-Appellants, v. THE DEPARTMENT OF REGISTRATION & EDUCATION et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1-88-0852
    Opinion filed June 27, 1989.
    Rehearing denied August 15, 1989.

      Ross S. Welch, of Chicago, for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (William K. Kane, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE SCARIANO.

delivered the opinion of the court:

The Illinois Department of Registration and Education (Department) found plaintiffs guilty of commingling funds held in a property management trust for the benefit of others, fined them $2,500, and placed their real estate licenses on probation for two years for having contravened certain provisions of the Real Estate License Act of 1983 (Ill. Rev. Stat. 1983, ch. 111, par. 5801 et seq.). On administrative review, the circuit court affirmed. Plaintiff now appeals, and the issue on review is whether the decision of the Illinois Department of Registration and Education was against the manifest weight of the evidence.

The Department brought a two-count complaint against plaintiffs alleging that they had violated section 18(e)(12) (Ill. Rev. Stat. 1983, ch. 111, par. 5818(e)(12)) and requested the State Real Estate Administration and Disciplinary Board (Board) that the real estate broker’s licenses of John P. Schermerhorn and the corporate real estate license of J.P. Schermerhorn & Co. (the company) be suspended, revoked, or that other appropriate discipline be imposed. The charges were (1) that plaintiffs had commingled funds held in a property management trust for the benefit of others, and (2) that plaintiffs refused to rent an apartment to a prospective tenant because he was black. The Board issued findings of fact and conclusions of law, finding plaintiffs guilty of the commingling charge, but not guilty of the second charge. Plaintiffs have been represented throughout all of these proceedings by attorney Ross Welch.

Gilbert Lynn, chief audit supervisor for the Department, audited the books of plaintiff company and discovered that $75,000 had been withdrawn from the company’s property management account and placed in a commercial paper investment in the name of J.P. Schermerhorn & Co. The company offered property management services to its customers and maintained a management account wherein monies collected in the course of rendering those services were deposited and held in trust. Lynn’s audit further revealed that by taking funds from its property management account and investing them in commercial paper in the company’s name, such investment had earned approximately $33,000 in interest from 1980 through 1983. Plaintiffs deposited the interest so earned into the company’s operating account ■ and credited it as interest income; the commercial paper investment was recorded as cash in its property management account.

In response to Lynn’s inquiry as to whether their clients had consented that plaintiffs purchase investments with their money and retain the interest earned, plaintiffs produced a letter, which they claimed had been sent to the affected clients and which they also claimed constituted their clients’ assent that the company retain as its own the interest earned by the management account:

“As we discussed for the real estate tax reserve account we will maintain a minimum amount each month to have on hand the total amount of taxes when they are due and payable through John Luecker.
The bank has informed us that they are in a position to purchase commercial papers for these large reserves and the interest to be credited to our account. This information is to let you know that the interest earned by us will be used by us to maintain this account at all times ***.”

According to this letter, Lynn testified, the interest earned on the investment should have been deposited into the company’s tax account for property management customers and not in the company’s operating account.

Further, after the Department requested plaintiffs to furnish a clear and accurate breakdown of the ownership of the $75,000, plaintiffs sent the Department an affidavit stating that, notwithstanding the contents of the letters they sent to their clients, the $75,000 belonged entirely to Ross Welch, one of the property management account owners and the attorney for plaintiffs in this case. The affidavit further stated that Welch had consented to the company’s use of his money. But when Lynn interviewed Welch regarding the contents of plaintiffs’ affidavit, Welch had no recollection of having granted such consent. Welch later informed Lynn that any interest earned on his money was insignificant. Plaintiff J.P. Schermerhorn testified at the hearing that his attorney, Welch, owned the money taken from the property management account to purchase the commercial paper in the company name and had given his oral consent to its use.

The Board found, and the circuit court affirmed, that this arrangement constituted a commingling of funds for the reason that J.P. Schermerhorn & Co. received interest income on money it did not own, that the persons whose money was invested were deprived of its use, and that plaintiffs meanwhile received the benefits of the interest income from the commercial paper investment as it was deposited into their company’s operating account.

The Real Estate License Act provides that the Department of Registration and Education shall administer the Act. (Ill. Rev. Stat. 1987, ch. 111, par. 5808.) It also provides that a Real Estate Administration and Disciplinary Board be created and empowered to conduct hearings of alleged violations of the Act. (Ill. Rev. Stat. 1987, ch. 111, par. 5820.) The Board’s findings are then presented to the Department for review and approval. A final decision of the Department is subject to judicial review pursuant to the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.). Ill. Rev. Stat. 1987, ch. 111, par. 5821.

In the present case, the Board found that plaintiffs violated section 18(e)(12) of the Real Estate License Act, which provides:

“§18. The Department may refuse to issue or renew, may place on probation, may suspend or may revoke any license, or may censure, reprimand or impose a civil penalty not to exceed $10,000 upon any licensee hereunder for any one or any combination of the following causes:
* * *
(e) Where the licensee in performing or attempting to perform or pretending to perform any act as a broker or salesperson, or where such licensee, in handling his own property, whether held by deed, option, or otherwise, is found guilty of:
* * *
(12) Commingling the money or property of others with his own.” (Ill. Rev. Stat. 1983, ch. 111, par. 5818.)

After consideration of the entire record, the Board found plaintiffs guilty of commingling funds held in trust with their own funds, and the circuit court upheld its decision.

The function of a reviewing court is limited to a determination of whether the administrative decision under review is against the manifest weight of the evidence. (Davern v. Civil Service Comm’n (1970), 47 Ill. 2d 469, 471, 269 N.E.2d 713, cert. denied (1971), 403 U.S. 918, 29 L. Ed. 2d 695, 91 S. Ct. 2229.) An agency decision will not be disturbed unless an opposite conclusion is “clearly evident” from the evidence. Rasky v. Department of Registration & Education (1980), 87 Ill. App. 3d 580, 588, 410 N.E.2d 69, appeal dismissed (1981), 454 U.S. 806, 70 L. Ed. 2d 75, 102 S. Ct. 78, citing Carrao v. Board of Education (1977), 46 Ill. App. 3d 33, 40, 360 N.E.2d 536.

Plaintiffs initially identify our standard of review as whether “the defendants proved by a preponderance of the evidence that plaintiffs are guilty of commingling,” arguing that there is no evidence to support the finding that they commingled the money of others with their own, and that the testimony of J.P. Schermerhorn that he never put his own money into the management account stands uncontradicted.

Second, plaintiffs assert that the record shows that a letter was sent by plaintiffs’ attorney to each member of the Board hearing the case, specifically pointing out that commingling could not occur when the money used to buy the commercial paper came out of the J.P. Schermerhorn & Co. management account, and the commercial paper was brought in that same name. Plaintiffs allege that because this argument was never answered, it stands admitted under Supreme Court Rule 341(e)(7). 107 Ill. 2d R. 341(e)(7).

Third, plaintiffs contend that commingling cannot exist where there is a transfer of money within the same legal entity. Plaintiffs then list several facts which they claim show that only one legal entity existed. These facts include: (1) that the commercial paper was purchased by the J.P. Schermerhorn & Co. management account, and held by the same account; (2) that the $75,000 was carried as cash in the company’s management account; (3) that J.P. Schermerhorn never put personal funds in the management account; and (4) that the $75,000 was always shown on the company’s books as an asset of the management account.

Fourth, plaintiffs maintain that Welch’s oral consent was sufficient to authorize the retention of the interest on the commercial paper by the corporation in a separate account, viz., the operating account of the corporation.

We hold that the circuit court correctly affirmed the Department’s decision. The issue in this court is not, as defendants would have it, whether “the defendants proved by a preponderance of the evidence that plaintiffs are guilty of commingling.” Although this may have been defendants’ burden at the hearing stage of the proceeding, the issue now, as we have previously noted, is whether the manifest weight of the evidence supports the Department’s decision. (Davern v. Civil Service Comm’n, 47 Ill. 2d at 471.) Deference is to be given to the Department’s decision, and it becomes plaintiffs’ burden in this court to show that this decision is clearly erroneous. In order to set aside an agency decision, the reviewing court must find that all reasonable and unbiased persons, acting within the limits prescribed by law and drawing all inferences in support of the finding, would agree that the finding is erroneous. Agans v. Edgar (1986), 142 Ill. App. 3d 1087, 1093, 492 N.E.2d 929.

Plaintiffs’ argument that J.P. Schermerhorn never put his own money into the management account is irrelevant. Defendants do not accuse plaintiffs of doing any such thing. The commingling in this case arose when plaintiffs took the interest from commercial paper purchased with funds belonging to their clients and deposited that interest into a separate operating account used for the benefit of the corporation — an activity closely akin to conversion, if not arrant conversion itself.

Plaintiffs’ second and third arguments, involving Welch’s letter sent to the members of the Board and that commingling cannot exist where there is a transfer of money within the same legal entity, are equally meritless. Especially pointless is plaintiffs’ contention that the contents of the letter are admitted by the Department as true pursuant to Supreme Court Rule 341(e)(7) because the Department failed to respond to it. Supreme Court Rule 341(e)(7) provides that the points not argued in an appellant’s brief are waived and cannot be argued in the reply brief, oral argument, or on petition for rehearing. (107 Ill. 2d R. 341(e)(7).) This rule is obviously unrelated to plaintiffs’ contention.

Merely to juxtapose plaintiffs’ arguments with the facts of this case is to lay bare their utter frivolity. The contents of the letter are not disputed and are clearly a matter of record. It states that the commercial paper was purchased with funds from the J.P. Schermerhorn management account, and that it was purchased in the company’s name. This in no way changes the facts that the $75,000 continued to be listed as cash in the management account, that the $33,000 in interest generated from the investment was appropriated by the corporation, and that plaintiffs failed to demonstrate that the affected clients consented to the arrangement. In fact, when asked about consent, the company first gave the Department a letter which stated that the interest from investing funds from the property management account would be used by the company to maintain a fund to be used for the payment of their clients’ property taxes. Only later, when pressed for an exact breakdown of the ownership of the $75,000, did the company come forward with the allegation that the entire amount was owned by Welch and that he orally consented to the arrangement. The company’s “proof” of this is J.P. Schermerhorn’s affidavit stating that it was so. Moreover, Lynn testified that Welch could not recall whether or not he gave permission for the retention of the interest. Lynn further testified that Welch later informed him that any interest involved was insignificant.

Indeed, it is quite evident that Welch plays a rather unusual part in these proceedings, so unusual in fact that we hereby order the clerk of this court to transmit a copy of this opinion to the Attorney Registration and Disciplinary Commission for the purpose of inquiring into whether there is involved here any contravention on his part of our Code of Professional Responsibility. (107 Ill. 2d Rules, art. VIII.) At any rate, the Department having weighed the evidence and having adjudged the credibility of the witnesses, we find that the manifest weight of the evidence clearly supports the Department’s decision. Accordingly, we affirm the circuit court’s decision.

Affirmed.

HARTMAN and DiVITO, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCARIANO

license: Public Domain

text:
    WAYNE T. LOFTHOUSE, Special Adm’r of the Estate of Nancy M. Hendrickson, Deceased, Plaintiff-Appellant, v. SUBURBAN TRUST AND SAVINGS BANK OF OAK PARK et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1-88-2321
    Opinion filed June 27, 1989.

      Wayne T. Lofthouse, of Mueller, Alspaugh & Lofthouse, of Chicago, appellant pro se.

    Ellyn B. Dorf and Victor J. Piekarski, both of Querrey & Harrow, Ltd., of Chicago, for appellees.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff presents the following issue for review: whether the trial court erred in dismissing plaintiff’s complaint pursuant to section 2— 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619), where it was not shown that his action was barred by a statute of limitations because: (a) the pleading attacked did not affirmatively show that the action was barred by the appropriate statute of limitations; (b) whether there was a loss to defendants due to plaintiff’s delay is a question of fact that the court below improperly disposed of in granting defendants’ section 2 — 619 motion to dismiss; or (c) laches was improperly considered by the court in defendants’ section 2 — 619 motion to dismiss.

On January 12, 1983, a draft in the amount of $6,939.59 representing the proceeds from the sale of certain stock held by the subject estate was issued by Langill & Co., designating William W. Hall, executor of the estate of Nancy M. Hendrickson, as payee; defendant Northern Trust was the drawer bank. On January 15, 1983, defendant Suburban Trust accepted the check for deposit into the personal account of one Joseph Collins. The check was endorsed as follows: “Paid to the order of Joseph A. Collins — William W. Hall, Executor of the Estate of Nancy Hendrickson.” Hall’s signature was a forgery.

On September 12, 1986, plaintiff Wayne T. Lofthouse was appointed special administrator of the estate of Nancy M. Hendrickson. On August 10, 1987, plaintiff filed a complaint seeking to recover from defendants $6,939.59, representing the proceeds from the forged instrument, plus interest and costs, asserting that the signature of William W. Hall was a forgery.

Both defendants filed motions to dismiss based on sections 2 — 615 and 2 — 619 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 615, 2 — 619.) The motions to dismiss pursuant to section 2 — 619 relied on two separate grounds: (1) that plaintiff failed to commence his action within the requisite period of the statute of limitations found in section 4 — 207(4) of the Uniform Commercial Code (Ill. Rev. Stat. 1985, ch. 26, par. 4 — 207(4)), and (2) that the action was barred by the doctrine of laches. Plaintiff did not provide a written response to defendants’ motions. After hearing argument on June 29, 1988, the trial court, without the benefit of the services of a court reporter, granted defendants’ section 2 — 619 motions to dismiss; however, the order fails to state the reasons the judge relied upon in granting the motions.

On appeal, plaintiff first asserts that since the pleading attacked did not affirmatively show that the action was barred by the appropriate statute of limitations, defendants’ motions should have been denied by the trial court. (Rowan v. Novotny (1987), 157 Ill. App. 3d 691, 510 N.E.2d 1111.) In Rowan, the court held that the limitations period does not begin to run until after the plaintiff has knowledge or should have knowledge of defendant’s wrongful acts (Rowan, 157 Ill. App. 3d 691, citing Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976), and that whether plaintiff knew or had reasonable grounds to know of the libelous nature of defendant’s letter was a question of fact; accordingly, the statute of limitations defense was improperly entertained in a section 2 — 619 motion to dismiss. Rowan, 157 Ill. App. 3d at 694.

Plaintiff argues that similarly, in the present case, it is also a question of fact as to when the statute of limitations began to run because, although the forged instrument was negotiated nearly four years and eight months before the filing of the present suit, plaintiff was not named special administrator of the estate of Nancy M. Hendrickson until September 12, 1986, less than a year prior to the filing of this lawsuit. Thus, plaintiff contends, questions of fact are raised as to when the “reasonable time” set forth in section 4 — 207(4) of chapter 26 began to run, what constitutes a “reasonable time,” and when he knew or should have known of the injury to the estate.

Section 4 — 207(4) (Ill. Rev. Stat. 1985, ch. 26, par. 4 — 207(4)) provides as follows:

“Unless a claim for breach of warranty under this Section is made within a reasonable time after the person claiming learns of the breach, the person liable is discharged to the extent of any loss caused by the delay in making the claim.”

Plaintiff cites a Seventh Circuit United States Court of Appeals case for its definition of what constitutes a “reasonable time”:

“What notification would be deemed ‘reasonable’ in a specific case depends, of course, upon the activities reviewed and the surrounding circumstances [citations]. In some cases, quite lengthy delays in reporting forgeries will not defeat the warranty claim if no damages resulted from the delays. E.g. Michigan National Bank v. American Nat. B. & T. Co., 34 Ill. App. 3d 30, 339 N.E.2d 375 (1975).” (Home Indemnity Co. v. First National Bank (7th Cir. 1981), 659 F.2d 796, 799.)

In Home Indemnity, the court relied on section 4 — 207(4) and upheld the defendant’s motion for summary judgment because of plaintiff’s unreasonable delay. However, plaintiff urges, in Home Indemnity, there was ample evidence through discovery to determine that plaintiff engaged in dilatory behavior and that this delay occurred while plaintiff had knowledge of the forgery. In the case at bar, he contends, no such circumstances were present, claiming, instead, that the record is devoid of any evidence to determine what a “reasonable time” would have been in this case because discovery was never pursued. Plaintiff insists that this was a disputed issue of material fact improperly determined by the trial court, and that the dismissal of his cause should be reversed and the amended complaint reinstated.

Thus, the issue in this case becomes quite simple: whether the trial court’s dismissal of plaintiff’s action pursuant to section 2 — 619 of our Code of Civil Procedure was supported by the record. In reviewing the dismissal of a complaint or an order granting judgment on the pleadings, the appellate court may affirm on any basis found in the record. (Fischer v. Mann (1987), 161 Ill. App. 3d 424, 514 N.E.2d 566, citing Goldberg v. Goldberg (1981), 103 Ill. App. 3d 584, 587, 431 N.E.2d 1060.) The absence of reasons in the trial court’s order rendering judgment in this cause and the lack of a transcript of the hearing at which the arguments were made leading to that judgment present no obstacle to our review, for where the record on appeal is incomplete, a reviewing court is to presume that the trial court’s judgment was in conformance with the law and based on sufficient facts. (Davis v. Allstate Insurance Co. (1986), 147 Ill. App. 3d 581, 498 N.E.2d 246.) Since that presumption has not been overcome by plaintiff here, we affirm the trial court for the reason that its decision was amply supported by facts in the record which show that plaintiff failed to commence his action in conformity with the requirements of the statute of limitations found in section 4 — 207(4) (Ill. Rev. Stat. 1985, ch. 26, par. 4-207(4)).

As previously noted, plaintiff argues that the question of “reasonable time” is one of fact which may not be entertained in a motion to dismiss, citing Michigan National Bank and Home Indemnity. However, neither case stands for such a proposition. In fact, both cases, in disposing of the issue of “reasonable time,” affirm the granting of summary judgment. In the case at bar, a time lag of over 4V2 years before suit was filed clearly supports the trial court’s finding that such a delay was beyond a “reasonable time.” We note that in Home Indemnity, the delay deemed unreasonable was six weeks; in Michigan National Bank, the unreasonable lapse of time was six months. Surely 4V2 years is an excessive length of time for the subject estate to have waited before filing its claim, especially in light of the well-recognized fact that the banking industry is anything but static. That plaintiff was not appointed special administrator until 11 months before suit was filed entitles him to no special consideration, for the estate had the legal capacity to sue through its executor throughout his entire tenure, and if he were performing his duty, he either knew or should have known that the funds were missing and should have diligently pursued a claim for their recovery.

The failure of the estate to bring suit within a reasonable time operates to discharge defendants of liability under the statute to the extent of any loss caused by the delay. In the case sub judice, this would be the entire amount, for if the claim had been timely made, defendants could have exercised their rights to pursue various remedies against the forger, or after his death, against his estate. The forger, Collins, died on September 7, 1985, some 32 months after the forgery. His estate was opened and letters of office issued out of the circuit court of Cook County on May 8, 1986. Any rights which could have been pursued by defendants were forever barred on November 8, 1986, pursuant to section 18 — 12 of the Probate Act, which requires all claims against an estate to be filed within six months from the date of the original issuance of letters of office. (Ill. Rev. Stat. 1985, ch. 11O1^, par. 18 — 12(a).) Thus, recourse can no longer be had against Collins’ estate.

Plaintiff, however, maintains that since Collins’ estate was always insolvent, defendants suffer no loss. This argument fails to acknowledge the avenues of recourse open to defendants before Collins’ death: Suburban Trust could have contacted Northern (the drawer bank) or Langill & Co. (the payor) to issue a stop payment order on the check; Suburban Trust could have forced Collins to recredit his account; and either defendant could have pursued a legal action against Collins. Inasmuch as the record supports the trial court’s decision, we affirm.

Having held that the trial court was correct in its determination that plaintiff’s action was time barred, it becomes unnecessary to consider plaintiff’s remaining issues.

Affirmed.

BILANDIC, P.J., and DiVITO, J., concur.


author: PRESIDING JUSTICE BILANDIC

text:
    THOMAS L. CLEMONS, Plaintiff-Appellant, v. DONNELL L. ATLAS, Defendant-Appellee.
    First District (2nd Division)
    No. 1-88-3324
    Opinion filed June 27, 1989.

      Fred I. Benjamin and Michael M. Mordini, both of Benjamin & Shapiro, Ltd., of Chicago, for appellant.
    Audrey Anastasia Wirtz, of Clifford P. Mallon, of Chicago, for appellee.
   PRESIDING JUSTICE BILANDIC

delivered the opinion of the court:

Plaintiff filed suit against the defendant on October 30, 1986. Summons issued on the same day. Defendant was not served. Thereafter, two alias summons were issued. Defendant was served on January 6, 1988, approximately 14 months after the commencement of plaintiff’s action. The trial court granted defendant’s motion to dismiss the complaint with prejudice pursuant to Supreme Court Rule 103(b) (87 Ill. 2d R. 103(b)). Plaintiff appeals.

The issue presented is whether, under the facts of this case, the trial court abused its discretion by dismissing plaintiff’s action.

Supreme Court Rule 103(b) provides:

“(b) Dismissal for Lack of Diligence. If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court’s own motion.” 87 Ill. 2d R. 103(b).

A motion pursuant to Rule 103(b) is addressed to the sound discretion of the trial court, and a reviewing court will interfere only where there is an abuse of discretion. Each case must be determined on its own facts, but the court will look at several factors to determine whether the plaintiff carried his burden of showing that he has exercised due diligence: (1) length of time used to obtain service; (2) activities of the plaintiff; (3) any knowledge on the part of plaintiff of the location of defendant; (4) ease with which the whereabouts of defendant could have been ascertained; (5) defendant’s actual knowledge of the pendency of the action; and (6) the special circumstances which would affect plaintiff’s efforts. Licka v. William A. Sales, Ltd. (1979), 70 Ill. App. 3d 929, 937, 388 N.E.2d 1261.

Plaintiff’s complaint was filed and summons issued on October 30, 1986. The sheriff made three attempts to serve the defendant as 4435 South Lawler, Chicago, Illinois. The first attempt was on November 14, 1986, at 10:22 a.m.; then on November 18, 1986, at 1:05 p.m.; and finally on November 24, 1986, at 7:27 p.m. The sheriff then filed the summons on December 8, 1986, noted the three attempts, and officially returned the summons “not served.”

Plaintiff’s action against the defendant was for personal injuries sustained as a result of defendant’s negligence in the operation of a motor vehicle on December 24, 1984. If the sheriff had completed service of the original summons, the defendant would have been served prior to the expiration of the two-year statute of limitations.

The Chicago police department made an official report of the accident which is the basis for plaintiff’s action. The police report discloses defendant’s address as 4435 South Lawler, Chicago, Illinois. On January 6, 1985, plaintiff’s attorneys mailed a notice of attorney’s lien to defendant at this address. The letter was not returned to the sender by the post office. When plaintiff placed the original summons for service, he directed the sheriff to serve the defendant at this same address. The sheriff’s return shows an attempt to serve the defendant in the morning, afternoon and evening. Neither the defendant, nor any “person of the family, of the age of 13 years or upwards” was found. Ill. Rev. Stat. 1985, ch. 110, par. 2 — 203(a).

Subsequent events verified the fact that the defendant, and at least one “person of the family,” was present at this address. Therefore, the failure to serve the defendant with the original summons cannot be blamed on the plaintiff. This should have been a routine service. Possible explanations for failure of service may be that, unfortunately for the plaintiff, the defendant and no member of his household was at home on the three occasions that the sheriff called; that perhaps the sheriff’s return was inaccurate; or that the defendant was adept at avoiding the sheriff.

Immediately placing an alias summons for service at the same address may have given the appearance of diligence, but would have been ineffective if the defendant had actually moved. However, plaintiff chose to seek ways to determine the exact whereabouts of the defendant. Therefore, on May 18, 1987, his attorneys wrote to the Postmaster and Secretary of State for verification of the defendant’s address. Although this action could have taken place sooner, it cannot be characterized as unreasonably long. On or about June 18, 1987, plaintiff received verification from the Postmaster and Secretary of State that the defendant did indeed reside at 4435 South Lawler, Chicago, Illinois. Therefore, the plaintiff gave the correct direction to the sheriff at the time of the original filing.

After this verification, plaintiff placed an alias summons on June 30, 1987, for service at the same address. Unfortunately for the plaintiff, this writ was lost or misplaced by the sheriff, who made a return stating that the defendant was “not served due to clerical error” of the sheriff and that there would be “no charge” to the plaintiff.

With the great volume of work in the sheriff’s office, it is understandable that an occasional service goes awry. This official error cannot be charged to the plaintiff since this was a matter beyond his control. The sheriff acknowledged the error and waived the usual service fee.

Finally, the plaintiff placed a second alias summons for service at the original address on December 18, 1987. This service was completed on January 6, 1988, at 7:50 p.m. by serving a “person of the family, of the age of 13 years or upwards.” The return shows that summons was served on Shela Atlas, wife of defendant, age 35.

From the time of filing the complaint and summons on October 30, 1986, until service was obtained with a second alias summons on January 6, 1988 (approximately 14 months later), the plaintiff was diligent. Under normal circumstances, the original summons should have been served. When this failed, through no fault of plaintiff, the address was verified. The sheriff’s error with the first alias summons was beyond the control of the plaintiff. Finally, the defendant was served with the second alias summons at the address where he should have been served in the first place. During this 14-month period, the plaintiff placed three summons and pursued this matter to a successful conclusion.

Defendant does not cite any authority with facts similar to the case at bar where a determination was made that there was a sufficient lack of diligence to justify a dismissal of plaintiff’s action with prejudice.

We therefore conclude that a determination of lack of diligence and the dismissal of plaintiff’s cause of action, under the facts of this case, is an abuse of discretion.

Accordingly, the judgment of the circuit court of Cook County is reversed and this cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

HARTMAN and DiVITO, JJ., concur.


author: JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VINCENT WADE, Defendant-Appellant.
    First District (3rd Division)
    No. 1-86-1507
    Opinion filed June 28, 1989.

      Michael J. Pelletier and Elizabeth E. Clarke, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Loretta Davenport, and Donna J. Norton, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

Defendant, Vincent Wade, was tried by a jury and convicted of murder (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(a)), home invasion (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 11), and armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18 — 2(a)). He argues on appeal that: (1) his sentence of natural life imprisonment for murder must be reversed because it was based upon the trial court’s unsupported conclusion that defendant inflicted the fatal knife wounds on the victim; (2) defendant’s sentence to natural life imprisonment must be reversed and he must be resentenced because, in violation of his right to equal protection under the law, the trial court had unbridled discretion to sentence defendant to natural life imprisonment, rather than to an extended term; (3) the trial court erred in giving a non-Illinois Pattern Jury Instruction (IPI) on felony murder.

We affirm.

At trial, Melba Martin testified that she was in Tyrone Tolliver’s apartment on 93rd and Calumet streets in Chicago on August 9, 1984, when defendant and Michael Lynch wielding guns forced their entry into the apartment. She also testified that the defendant carried a knife. Martin testified that the defendant and Lynch pushed Tolliver onto a bed and asked about the “stash.” Martin volunteered to help look for what they sought. Defendant held a gun to her while she searched the kitchen. Martin and Tolliver were then tied up on the bed.

Tolliver told them that he did not have the “stash” and Lynch hit him in the head with a bar. Then Martin heard a gunshot. Tolliver fell off the bed and defendant and Lynch kicked him. While Tolliver was on the floor moaning, defendant searched the apartment. Lynch threatened that Tolliver and Martin would die if he was not told where the “stash” was. Next, Lynch moved Tolliver into the bathroom while defendant moved electronic equipment out of the apartment. She heard Tolliver moaning in the bathroom, but later she did not hear any more moans. She could not see the bathroom from the bed.

When Tolliver’s moans stopped, defendant and Lynch came into the room and Martin begged for her life. Defendant was sweating profusely and he told Lynch that they had to kill Martin. Lynch said that it was not the plan to kill her but defendant told Lynch to kill her. Lynch told Martin that her friend was dead but that they would cut her loose because he could not kill women or children. Before she left, she saw Lynch standing in the doorway of the bathroom and pointing a gun. When she ran out of the apartment she heard a gunshot.

Chicago police detective Frank Glynn testified that he found Tolliver’s body in the bathroom facedown with his hands and feet bound with cord.

Chicago police evidence technician Robert Baikie testified on behalf of the State that in the apartment he found a white electrical cord, the ends of which appeared to have been cut, and that he viewed cords on Tolliver’s body.

Assistant State’s Attorney Edward Snow testified on behalf of the State that he interviewed defendant after his arrest. Snow reported, among other details, that the defendant told him he used some telephone cord and an extension cord to tie the victims up. Defendant also told Snow that Lynch hit the man in the back of the head with the karate stick while asking him where the “stash” was.

Dr. Tae An testified on behalf of the State that on August 10, 1984, he performed an autopsy on Tolliver and observed 41 stab wounds, three lacerations, four cutting wounds and four gunshot wounds. The cause of death was multiple stab and gunshot wounds.

The jury returned a general verdict finding defendant guilty of murder. The verdict did not indicate whether defendant was guilty of murder or felony murder. At the sentencing hearing, the trial court announced its conclusion that it was defendant who inflicted the stab wounds on Tolliver. The trial court noted evidence that defendant was sweating profusely upon returning from the bathroom where Tolliver was stabbed.

The trial court also found that defendant’s conduct was exceptionally brutal and heinous and indicative of wanton cruelty. The trial court then found defendant eligible for extended-term sentencing. The trial court noted defendant’s prior convictions for robbery and two armed robberies and found that defendant had no rehabilitative potential. Defendant was sentenced concurrently to natural life imprisonment without the possibility of parole for murder, and to 30 years’ imprisonment for each of the armed robberies and the home invasion.

Defendant argues that his sentence to natural life imprisonment must be reversed and that he must be resentenced because the trial court concluded erroneously that he inflicted the knife wounds on the victim.

A defendant may be sentenced to natural life imprisonment upon a conviction for murder:

“(b) if the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or that any of the aggravating factors listed in subsection (b) of Section 9 — 1 of the Criminal Code of 1961 are present.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—1(a)(1)(b).

Defendant argues that his profuse sweating was insufficient evidence that he inflicted the fatal wounds on the victim, especially in light of Martin’s other testimony that defendant had been moving the victim’s personal property out of the apartment and loading it into Lynch’s car. Defendant also argues that the fact that an evidence technician found some electrical cord, the ends of which appeared to have been cut, was not evidence that defendant had a knife. However, Melba Martin testified she saw defendant with a knife. She never saw Lynch in possession of a knife.

But even if the trial court erred in finding that defendant had actually inflicted the fatal wounds, a sentence of natural life imprisonment could be upheld on the basis that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—l(aXlXb).

A defendant who has been found guilty of felony murder through accountability can receive a natural life sentence based upon the “brutal” or “heinous” behavior of the co-offender. (Ill. Rev. Stat. 1983, ch. 38, pars. 5 — 2(c), 1005 — 8—l(a)(l)(b).) “Brutal” has been defined as including conduct that is grossly ruthless, devoid of mercy or compassion, or cruel and cold-blooded. (People v. La Pointe (1982), 88 Ill. 2d 482, 501, 431 N.E.2d 344.) “Heinous” has been defined as including conduct that is hatefully or shockingly evil, grossly bad, and enormously and flagrantly criminal. (88 Ill. 2d at 501.) A sentence of natural life imprisonment is not limited to those murders involving torture or infliction of unnecessary pain. (88 Ill. 2d at 501.) Here, the victim was beaten on the head, bound, stabbed and shot repeatedly and lay moaning on a bathroom floor suffering for some time before dying. Therefore, the trial court could have properly found that the murder was accompanied by exceptionally brutal behavior as contemplated by the statute.

Defendant argues next that, in violation of the equal protection clause’s guaranty of equality of punishment, the trial court had unbridled discretion to sentence defendant to natural life imprisonment, rather than to an extended term, pursuant to a finding that the offense was accompanied by brutal or heinous behavior. Defendant also terms the court’s choice as arbitrary, capricious, and having no basis for differentiating between natural life imprisonment and an extended-term sentence so that similarly situated persons could be treated unequally based upon identical findings. As discussed above, a sentence of natural life imprisonment may be imposed if the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—1(a)(1)(b).) A felony that is accompanied by this same behavior can also be punishable by an extended-term sentence. Ill. Rev. Stat. 1983, ch. 38, pars. 1005 — 8— 2(a), 1005 — 5—3.2(b)(2).

Not only was the issue waived because it was not raised below, the argument is also unsupported. In People v. Cartalino (1982), 111 Ill. App. 3d 578, 591-92, 444 N.E.2d 662, the court held that the sentence of natural life imprisonment could not be imposed solely on the basis of the seriousness of the offense without weighing defendant’s rehabilitative potential. Here, the sentencing court examined the aggravating and mitigating factors and concluded defendant had no rehabilitative potential. Thus, the trial court correctly applied its discretion.

Defendant argues finally that the trial court erred in giving a non-IPI jury instruction on felony murder based upon an instruction in People v. Golson (1965), 32 Ill. 2d 398, 207 N.E.2d 68, because Golson was decided prior to the inclusion of felony murder in the Criminal Code, because there were applicable IPI jury instructions that the trial court was required to give by Supreme Court Rule 451(a) (107 Ill. 2d R. 451(a)), and because the instruction was not impartial.

Among the verdict forms, the jury was given guilty and not guilty forms for murder, but not for felony murder. The jury found defendant guilty of home invasion, the armed robbery of Tolliver and Martin, and the murder of Tolliver. The motion for a new trial argued, in part, that it had been error to give the non-IPI instruction. The motion was denied.

The following IPI instructions were given to the jury:

“A person commits the offense of murder when he kills an individual if, in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual or another; or he knows that such acts will cause death to that individual or another; or he knows that such acts create a strong probability of death or great bodily harm to that individual or another; or he is committing the offense of armed robbery or the offense of home invasion.” (Illinois Pattern Jury Instructions, Criminal, No. 7.01 (2d ed. 1981).)
“To sustain the charge of murder, the State must prove the following propositions:
First: That the Defendant, or one for whose conduct he is legally responsible, performed the acts which caused the death of Tyrone Tolliver; and
Second: That when the' Defendant, or one for whose conduct he is legally responsible, did so, he intended to kill or do great bodily harm to Tyrone Tolliver; or he knew that his act would cause death or great bodily harm to Tyrone Tolliver; or he knew that his acts created a strong probability of death or great bodily harm to Tyrone Tolliver; or he was committing the offense of armed robbery or the offense of home invasion.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the Defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the Defendant not guilty.” (Illinois Pattern Jury Instructions, Criminal, No. 7.02 (2d ed. 1981).)

The jury was also instructed using IPI Criminal 2d No. 5.03 as to accountability, i.e., that a person is legally responsible for the conduct of another person if with intent he aided another in committing an offense. Illinois Pattern Jury Instructions, Criminal, No. 5.03 (2d ed. Supp. 1989).

The State also tendered a non-IPI instruction derived from an instruction given in People v. Golson (1965), 32 Ill. 2d 398, 207 N.E.2d 68. After some revision by the trial court, the following non-IPI instruction was approved:

“The Court instructs the Jury, as a matter of law, that in this case to constitute the crime of murder it is not necessary for the State to show that it was or may have been the original intent of the Defendant or his co-conspirator or either of them to kill the deceased, Tyrone Tolliver. It is sufficient if the Jury believe [sic] from the evidence beyond a reasonable doubt that the Defendant and his co-conspirator combined to do an unlawful act, such as to take personal property from Tyrone Tolliver by force while armed with a dangerous weapon and that the deceased was killed by the Defendant or a co-conspirator in an attempt to execute such purpose.”

Defense counsel objected because the instruction was non-IPI, because there was a jury instruction on accountability, and because felony murder was included in the murder instruction. The trial court stated that the instruction adequately explained the complex concept of felony murder.

At the time of defendant’s conduct the murder statute stated, in relevant part:

“(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
* * *
(3) He is attempting or committing a forcible felony other than voluntary manslaughter.” (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(a).)

Section 9 — 1(a)(3) sets forth the offense of felony murder, an offense which does not require that defendant intended to kill when he performed the acts resulting in death. (People v. Miller (1980), 89 Ill. App. 3d 973, 979, 412 N.E.2d 175.) Under the felony murder doctrine, a defendant can also be liable for the acts of another which caused the victim’s death when the death occurred as a result of the commission of the felony in which he assisted or for which he was otherwise responsible on the basis of accountability. (Ill. Rev. Stat. 1983, ch. 38, par. 5 — 2(c); Miller, 89 Ill. App. 3d at 979.) One is legally accountable for the conduct of another when:

“(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” Ill. Rev. Stat. 1983, ch. 38, par. 5 — 2(c).

The challenged instruction in Golson stated in relevant part:

“[T]o constitute the crime of murder it is not necessary for the State to show that it was or may have been the original intent of the defendants or their co-conspirator or any of them to kill the deceased. * * * It is sufficient if the jury believe [sic] from the evidence beyond a reasonable doubt that the defendants and their co-conspirator combined to do an unlawful act, such as to steal from the United States mails and that the deceased was killed by a co-conspirator in an attempt to execute such purpose.” Golson, 32 Ill. 2d at 406.

In Golson, defendants argued that the felony murder doctrine did not apply to a conspiracy to commit a non-forcible felony. This argument was rejected, and the court held, after consideration of the other instructions on the subject and the facts of the case, that it had not been improper or misleading to give the non-IPI instruction. The Golson court did not address the issue whether it was an error to give the non-IPI instruction when IPI instructions included felony murder.

Supreme Court Rule 451(a) provides that an applicable criminal IPI instruction should be given. (107 Ill. 2d R. 451(a).) Supreme Court Rule 451(a) also provides that an impartial non-IPI instruction may be given if the IPI instruction does not accurately state the law or does not cover a subject in which the jury should be instructed. (107 Ill. 2d R. 451(a).) It is within the discretion of the trial court to give a non-IPI instruction. People v. Sequoia Books, Inc. (1986), 145 Ill. App. 3d 1054,1064, 495 N.E.2d 1292.

Defendant relies on People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526, to argue that even the giving of a legally correct non-IPI instruction can be reversible error, because there the use of legally correct, but unnecessary, non-IPI instructions only increased the possibility of confusion to the jury. But in the instant case, the additional instructions explained that no intent to kill was required and explained the requirement that the death occur in an attempt to commit a conspired offense. These concepts were not explained by the IPI instructions. Therefore, it was not reversible error to have so instructed the jury.

Defendant also argues that the trial court erred in relying upon Golson because the murder statute in effect in 1960 did not include a definition of felony murder. (Ill. Rev. Stat. 1959, ch. 38, par. 358.) Defendant argues that therefore the Golson court had to rely upon a non-IPI instruction to clarify the theory of felony murder. But as explained above, the non-IPI instruction explained concepts not clarified by the IPI instructions.

Defendant argues that the non-IPI instruction injected a specific example of guilt and referred to a coconspirator when conspiracy had not been charged. He argues, therefore, that the instruction was prejudicial in violation of Supreme Court Rule 451(a)’s admonishment that the instruction be impartial and free from argument. 107 Ill. 2d R. 451(a).

The non-IPI instruction followed Golson in referring to a co-conspirator and in giving the specific example of the felony that would provide the predicate for a finding of guilt of felony murder. We believe the use of the word “coconspirator” did not prejudice the jury in its role as fact finder in determining whether defendant and Lynch had conspired to rob Tolliver and to invade his home. It also was not error to refer to the taking by force of property from the victim because defendant was charged with armed robbery and because the instruction thereby explained how the death had to occur in an attempt to execute a felony which defendant had conspired to commit.

The judgment of the circuit court is affirmed.

Judgment affirmed.

FREEMAN, P.J., and RIZZI, J., concur.


text:
    MARK A. WENGER et al., Indiv. and on behalf of all persons similarly situated, Plaintiffs-Appellants, v. MORGAN M. FINLEY, Clerk of the Circuit Court, et al., Defendants-Appellees (Neil F. Hartigan, Attorney General, Defendant and Intervenor-Appellee).
    First District (2nd Division)
    No. 1-88-3778
    Opinion filed June 27, 1989.

      Sidney Z. Karasik and Lionel Brazen, both of Chicago, for appellants.
    Neil F. Hartigan, Attorney General, of Springfield, pro se (Jennifer A. Keller, Assistant Attorney General, of Chicago, of counsel), for appellee Neil F. Hartigan.
    Richard M. Daley, State’s Attorney, of Chicago (Joan S. Cherry, Susan Condon, and Patricia M. Shymanski, Assistant State’s Attorneys, of counsel), for other appellees.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiffs appeal the granting of summary judgment in favor of defendants, challenging the constitutionality of the Illinois Not-for-Profit Dispute Resolution Center Act (hereinafter the Act) (Ill. Rev. Stat. 1987, ch. 37, pars. 851 through 856), and arguing that it violates section 12 of article I, section 13 of article IV, and section 1 of article II of the Illinois Constitution, as well as the due process and equal protection clauses of the United States and Illinois Constitutions; and that the trial court erred in deferring to the legislature’s findings of fact.

The Illinois Not-for-Profit Dispute Resolution Center Act (Ill. Rev. Stat. 1987, ch. 37, pars. 851 through 856) became effective September 23, 1987. Section 1 of the Act sets forth legislative findings of fact:

“[T]hat the resolution of certain disputes can be costly and time-consuming in the context of a formal judicial proceeding; and that mediation of disputes has a great potential for efficiently reducing the volume of matters which burden the court system in this State; and that unresolved disputes which individually may be of small social or economic magnitude are collectively of enormous social and economic consequence; and that many seemingly minor conflicts between individuals may escalate into major social problems unless resolved early in an atmosphere in which the disputants can discuss their differences through an informal yet structured process; and that there is a compelling need in a complex society for dispute resolution centers in which people can participate in creating lasting resolutions to ongoing conflicts; and that not-for-profit dispute resolution centers can make a substantial contribution to the operation and maintenance of the courts of this State by keeping some matters from litigation and by providing a mechanism for resolving certain pending matters.” (Ill. Rev. Stat. 1987, ch. 37, par. 851.)

A dispute resolution center (hereinafter DRC) is defined as an organization that is “organized to provide mediation services at no charge to disputants who agree to utilize its services,” and disputes handled “shall include, but not be limited to, disputes referred from the court system.” (Ill. Rev. Stat. 1987, ch. 37, par. 852(a).) All communications made during the resolution process, and all DRC memoranda, work product or case files are confidential. Ill. Rev. Stat. 1987, ch. 37, par. 856.

The Act provides that dispute resolution funds are to be established in (1) judicial circuits that include a county with a population in excess of 2 million inhabitants; and (2) in other judicial circuits, when the chief judge of that circuit finds that a DRC “would significantly enhance the administration of justice,” and that a DRC “exists or should be created in the judicial circuit.” (Ill. Rev. Stat. 1987, ch. 37, pars. 853(b)(1), (b)(2).) In judicial circuits in which a dispute resolution fund is established, “the clerks of the circuit court shall charge and collect a dispute resolution fund fee of $1, such fee to be paid by the party initiating the action at the time of filing the first pleading in all civil cases.” (Ill. Rev. Stat. 1987, ch. 37, par. 853(c).) The fees are “assessable as costs, and shall be remitted by such clerk monthly to the county treasurers,” who, in turn, shall disburse them to the dispute resolution fund. Ill. Rev. Stat. 1987, ch. 37, par. 853(c).

The chief judge of the judicial circuit administers the fund and is to make yearly disbursements to qualified DRCs within the judicial circuit. (Ill. Rev. Stat. 1987, ch. 37, par. 854(a).) Disbursements are “based on each center’s proportionate share of the total number of cases resolved by all qualified centers in that circuit during the year prior to application”; however, no DRC may receive more than $200,000 in any one year, and amounts collected" but not disbursed must be “paid to the county treasurer for the administration of justice in the judicial circuit.” (Ill. Rev. Stat. 1987, ch. 37, pars. 854(b), (c)(1).) A DRC may also accept funds from other public entities or private sources. Additionally, the chief judge is responsible for establishing rules and standards pertaining to the operation of DRCs within the circuit. Ill. Rev. Stat. 1987, ch. 37, pars. 855(a), (b).

On November 12, 1987, plaintiffs filed the instant suit on behalf of themselves and “all persons similarly situated,” naming the clerk of the circuit court, his chief deputy, and the treasurer of Cook County as defendants; however, no class was certified. Plaintiffs alleged that the Act (1) violates their due process and equal protection rights in violation of the United States and Illinois Constitutions; (2) contravenes the prohibition against special legislation contained in article IV, section 13, of the Illinois Constitution; (3) offends article I, section 12, of the Illinois Constitution, which provides that “[e]very person *** shall obtain justice by law, freely, completely, and promptly”; and (4) violates the doctrine of separation of powers found in article II, section 1, of the Illinois Constitution. Plaintiffs sought declaratory and injunctive relief, an accounting, restitution, and attorney fees and costs.

The Illinois Attorney General was granted leave to intervene in the suit as a defendant, and the Chicago Bar Association was given leave to appear as amicus curiae on behalf of defendants. On December 9, 1988, the circuit court ruled on the parties’ cross-motions for summary judgment, and held in favor of defendant, stating:

“[T]he question presented is whether the fee paid to fund the dispute resolution center has any relation to the maintenance or operation of the circuit court system by reducing the burdens a litigant encounters in processing a case through that court system and the burden the court system itself bears by processing, monitoring, administering, and resolving civil disputes of all kinds?
* * *
Does the imposition of the fee in question, upon civil litigants who file a first pleading to support dispute resolution centers, not a part of the Illinois court system[,] ‘improve the administration of justice thus benefitting every civil litigant?’ Or, put another way, does the operation of a dispute resolution center, not a part of the Illinois court system, relate to the ‘operation and maintenance of the judicial system?’
* * *
The establishment of an alternative method of dispute resolution may tend to reduce the number of cases filed or offer a potential for earlier resolution by non-judicial methods. Thus, persons who elect to litigate in the county system will encounter fewer cases with which to compete for judicial attention and disposition. The reduction of time that litigants suffer in trial delay is related to the maintenance and operation of the court system. Therefore, the Act can reasonably be said to apply to ‘court purposes.’
* * *
*** [Ejvery litigant who files suit and pays a fee benefits from the existence of a dispute resolution system that potentially reduces the number of cases filed, or eventually required to be resolved, in the circuit court, thus affording the litigant an earlier resolution.” (Emphasis in original.)

This appeal followed.

Opinion

As noted previously, this case came before the trial court on cross-motions for summary judgment. There were no contested issues of material fact and the case presented a pure question of law; therefore, summary judgment was appropriate. (Allen v. Meyer (1958), 14 Ill. 2d 284, 152 N.E.2d 576.) Plaintiffs are challenging the facial validity of a statute and, in such a case, there is a strong presumption that the legislation is constitutional. (People v. Walker (1988), 119 Ill. 2d 465, 519 N.E.2d 890; People v. Inghram (1987), 118 Ill. 2d 140, 514 N.E.2d 977; Bernier v. Burris (1986), 113 Ill. 2d 219, 497 N.E.2d 763.) The party challenging the constitutionality of legislation bears the burden of “clearly establishing the constitutional violation.” Bernier, 113 Ill. 2d at 227.

At issue is whether DRCs are sufficiently related to the maintenance and operation of the court system to survive a challenge to the $1 fee. Plaintiffs maintain that this case is controlled by Crocker v. Finley (1984), 99 Ill. 2d 444, 459 N.E.2d 1346, which struck a $5 filing fee used to fund a domestic violence shelter program, while defendants, defendant-intervenor and amicus (hereinafter collectively referred to as defendants) assert that this case is analogous to Ali v. Danaher (1970), 47 Ill. 2d 231, 265 N.E.2d 103, which upheld a $1 county law library tax on litigants.

In Ali, plaintiff challenged a $1 county law library fee, which was to be paid at the time of the filing of the first pleading in all civil cases. The fee was assessable as costs, and was to be remitted by the clerk of the court to the county treasurer and retained by him in a special fund designated as the “County Law Library Fund.” The statute requiring the fee also provided that county law libraries “shall be freely available to all licensed Illinois attorneys, judges, magistrates and other public officers of such county, and to all members of the public, whenever the court house is open.” (111. Rev. Stat. 1969, ch. 81, par. 81.) Plaintiff argued that the fee was really an unconstitutional tax in violation of equal protection and the separation of powers doctrine, as well as section 19 of article II of the Illinois Constitution, which assures every person the right to obtain justice, by law, freely and without being obliged to purchase it. (Ali, 47 Ill. 2d at 234.) The court rejected these arguments, first noting that “a provision for fees relating to litigation is not offensive per se to separation of powers or to the prohibition against requiring the ‘purchase of justice.’ ” (47 Ill. 2d at 235.) The court continued:

“We do not consider it significant here that all persons paying the library fee might not actually use the library facilities in the particular litigation. Nor do we deem the library fee an unconstitutional imposition because a litigant may not request the use of the facilities. They are available to him and his attorney and anticipating their use is not unreasonable. Too, it is clear that the presence of such facilities is conductive to a proper and even improved administration of justice, which benefits every litigant.
* * *
We hold that the imposition of the library fee does not require an unconstitutional ‘purchase of justice.’ This holding follows other decisions in which this court has recognized that litigation may not be without lawful expense [citations]. The holdings illustrate, too, that such legislation is not violative of the constitutional separation of powers.
* * *
We are not persuaded by the plaintiff’s argument that the library fee requirement violates section I of article IX, of the constitution of Illinois because it is a tax which is not equal or uniform as to the class upon which it operates. It is not uniform, it is contended, because the statute permits those litigants who join in ‘a single pleading, paper or appearance’ to pay a single library fee, whereas if they file a complaint or appearance separately each must pay the $1 fee. ***
The plaintiff suggests no reason why we should declare the classification unreasonable.” 47 Ill. 2d at 237, 238.

The court elaborated on this holding in Crocker. There, plaintiff argued that the $5 filing fee for petitioners for dissolution of marriage, which was collected to fund shelters and other services for victims of domestic violence, was unconstitutional and in violation of the due process and equal protection guarantees in the United States and Illinois Constitutions; the prohibition against special legislation in article IV, section 13, of the Illinois Constitution; and the right to obtain justice freely secured by article I, section 12, of the Illinois Constitution. (Crocker, 99 Ill. 2d at 449.) The supreme court agreed, stating:

“The salutary goals of our new domestic violence acts are not at issue in this case. Nor is the General Assembly’s decision that the laws were sorely needed. Instead, the question presented is whether the legislature may impose a court filing fee on a limited group of litigants where the funds so collected go ultimately into the State Treasury to fund a general welfare program. ***
We first address the lower court’s decision and the plaintiffs’ contention that the $5 fee conflicts with the Illinois constitutional right to obtain justice by law freely.
* * *
*** [Cjourt charges imposed on a litigant are fees if assessed to defray the expenses of his litigation. On the other hand, a charge having no relation to the services rendered, assessed to provide general revenue rather than compensation, is a tax. ***
Statutes imposing litigation taxes, however, do not necessarily offend our State constitution. ***
Ali v. Danaher illustrates that a litigation tax may sometimes be imposed. That case, however, does not control the case at bar. Instead, the present appeal compels us to consider a further question that prior cases do not adequately resolve. That is, for what purposes may litigants be taxed?
* * *
*** [In Ali], this court had no occasion to state that the tax is sound because its purpose is court related. Nevertheless, the relationship of county law libraries to the court system is clear. According to the statute authorizing the tax, funds collected for the libraries could only be disbursed on the order of a majority of a county’s circuit court judges. [Citation.] The statute required that libraries supported by the tax be made freely available to ‘all licensed Illinois attorneys, judges, magistrates and other public officers’ [citation], as well as to other members of the public.” (99 Ill. 2d at 451, 452, 453.)

The court then discussed cases which upheld statutes imposing fees on litigants who file jury demands, and noted that “[n]one of the cases required this court to comment on the obvious relationship between jury fees or taxes and the court system.” (99 Ill. 2d at 454.) The court continued:

“With each prior case involving a filing fee or tax collected for a court-related purpose, there was no need to decide whether that purpose was a necessary element of the challenged statute’s constitutionality. However, we now conclude that court filing fees and taxes may be imposed only for purposes relating to the operation and maintenance of the courts. We consider this requirement to be inherent in our Illinois constitutional right to obtain justice freely.” (99 Ill. 2d at 454.)

The court concluded that the $5 tax “interferes unreasonably with plaintiff’s access to the courts,” stating:

“Dissolution-of-marriage petitioners should not be required, as a condition to their filing, to support a general welfare program that relates neither to their litigation nor to the court system. If the right to obtain justice freely is to be a meaningful guarantee, it must preclude the legislature from raising general revenue through charges assessed to those who would utilize our courts.
* * *
We find *** that the relationship asserted is simply too remote to save the $5 tax from its constitutional shortcomings. If the domestic violence services are deemed sufficiently court related to validate the funding scheme, countless other social welfare programs would qualify for monies obtained by taxing litigants.” 99 Ill. 2d at 455, 456.

Plaintiffs assert that an alternate dispute program is not provided for nor part of the judicial system in the Illinois Constitution and that the cases a neighborhood DRC would hear are typically not justiciable in the law courts; therefore, they argue, DRCs are not related to the judicial system. They also emphasize that DRCs may be funded by private sources, and they claim that such funding “is most uncharacteristic of a court-annexed institution.” Plaintiffs also challenge the trial court’s reliance on the legislature’s finding “that the filing fee is directly related to the justice system,” maintaining that there is not an unmanageable caseload in the civil calendar requiring diversion of cases to DRCs.

Defendants respond that DRCs will reduce the number of cases pending in the courts, thus shortening the amount of time it takes to reach a resolution for both those cases going to DRCs and those remaining in the court system. They contend that this improved efficiency is a direct benefit to the judicial system. They note, too, that as in Ali, the court administers the fund for the benefit of all litigants. Addressing plaintiff’s claim that many disputes brought to DRCs are not justiciable, defendants point out that many such claims are currently pending in the circuit court. They also cite authority that the trial judge cannot question the correctness of legislative judgment, so long as that judgment is, at a minimum, “fairly debatable.” (People v. Kohrig (1986), 113 Ill. 2d 384, 498 N.E.2d 1158, cert. denied (1987), 479 U.S. 1073, 94 L. Ed. 2d 126, 107 S. Ct. 1264; Bernier v. Burris (1986), 113 Ill. 2d 219, 497 N.E.2d 763.) “It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” (Kohrig, 113 Ill. 2d at 403.) Thus, defendants argue, the trial judge properly gave the legislature’s findings of fact “substantial deference.” Bernier v. Burris, 113 Ill. 2d 219, 497 N.E.2d 763.

Court filing fees may be imposed “for purposes relating to the operation and maintenance of the courts” (Crocker v. Finley (1984), 99 Ill. 2d 444, 454, 459 N.E.2d 1346), and, in section 1 of the Act, the legislature found that “there is a compelling need *** for dispute resolution centers” and that these centers “can make a substantial contribution to the operation and maintenance of the courts of this State.” (Ill. Rev. Stat. 1987, ch. 37, par. 851.) Plaintiffs argue that the legislature was mistaken, and that DRCs are not at all related to the operation and maintenance of the courts. This court cannot give berth to such a contention, for our function “is limited to determining whether the legislation in question is constitutional, not whether it is wise as well” (Bernier, 113 Ill. 2d at 230); therefore, we hold that the trial court properly deferred to the legislature and found that DRCs are related to the operation and maintenance of the courts.

Plaintiffs also challenge the Act on the basis of due process and equal protection, as well as the prohibition against special legislation found in section 13 of article IV of the Illinois Constitution, arguing that the Act creates an arbitrary classification and imposes a fee for non-court purposes. They contend that DRCs are part of a general welfare program not related to the court system and that it is unconstitutional to impose the burden of funding them on litigants rather than upon taxpayers generally.

Defendants reply that a statute will withstand a challenge based on due process principles if it bears “a reasonable relationship to the public interest sought to be protected, and the means adopted *** [are] a reasonable method of accomplishing the chosen objective.” (Crocker v. Finley (1984), 99 Ill. 2d 444, 456, 459 N.E.2d 1346.) Similarly, if there is a rational basis for a classification, a statute will withstand a challenge on the basis of equal protection or special legislation. (Chicago National League Ball Club, Inc. v. Thompson (1985), 108 Ill. 2d 357, 483 N.E.2d 1245.) There is a presumption in favor of the validity of legislation, and if the reasonableness of legislation is “fairly debatable,” courts will defer to legislative judgment. (Thillens, Inc. v. Morey (1957), 11 Ill. 2d 579, 591, 144 N.E.2d 735.) As we have noted above, defendants correctly contend that the fee is imposed for a court-related purpose, and that there is a reasonable, nonarbitrary relationship between the purpose of the Act, which is to improve the efficient administration of the court system, and the means adopted, imposing a $1 fee on the party “initiating the litigation”; thus, the trial court properly upheld the Act on this basis.

Plaintiffs also urge that the Act violates the doctrine of separation of powers. They note that the Act assigns the chief judge of the circuit a number of administrative duties which are not judicially related. They also claim the Act conscripts the judiciary as a tax collector. In support of their thesis that the Act constitutes an impermissible violation of the separation of powers doctrine, plaintiffs rely on People ex rel. Christiansen v. Connell (1954), 2 Ill. 2d 332, 118 N.E.2d 259.

In that case, the court invalidated a divorce statute which required the petitioner to file a written statement reciting his intention to file a complaint not less than 60 days nor more than one year before so doing. Section 5 of that statute provided “that the judge may, after inspection of the statement of intention, invite the prospective parties and their counsel, if any, to confer with him in his chambers; that no testimony shall be taken at the conference or any record made of the statements of any party; that attendance shall be voluntary and that nothing therein is an authorization to compel the attendance of a party by process or order of court.” (2 Ill. 2d at 336.) The court held that the statute violated section 19 of article II of the Illinois Constitution, which provides for a remedy for “all injuries and -wrongs *** promptly and without delay.” (2 Ill. 2d at 339.) The court also stated:

“There is another constitutional objection which, in our opinion, is also fatal to the validity of the statute before us. There are many areas of conflict and of litigation in which the participation of a judge as mediator or conciliator might be desirable. The volume of personal injury litigation might be reduced, for example, or labor disputes averted, by preliminary mediation before a judge. It is arguable that the State should be able to make full use of its judiciary, wherever their services might be valuable. But that result cannot be reached unless our constitutional doctrine of separation of powers is first altered. Of course, as has been ably argued, the constitution does not require a rigid separation of powers, and a degree of flexibility is necessary if government is to function. But an understanding view of the purpose of our doctrine of separation of powers is not enough to justify the present provision. The function here required of a judge is too remote from normal judicial duties to be sustained.
*** [Here,] *** the gap between the contemplated conference and a judicial hearing is broad. In the first place, there is nothing pending before the court to be decided. Decision is the heart of the judicial function. Without it, there can be no adjudication. ‘The power to hear without the power also to adjudicate and determine the rights of the parties to such proceedings cannot be said to be the exercise of the judicial power as that term is used in the constitution of this State.’ [Citation.] Moreover, no one, whether party or witness, can be required by judicial process to attend the conference. No record is to be made of what occurs at the conference and the conference may be ex parte. The pretrial conference, [citation] relied upon by analogy, occurs in the course of a pending lawsuit. The judge commands attendance, he does not invite. A record of the pretrial conference may be preserved. In our opinion, the function to be performed by the judge at the conference contemplated by the present statute cannot fairly be described as judicial.” (2 Ill. 2d at 348-49.)

Plaintiffs assert that the challenged Act casts the chief judge in the role of rule maker with no power to adjudicate, thus infringing upon the separation of powers. They further argue that there is no good reason why the rules must be made by the chief judge, “except for the transparent purpose of giving the neighborhood dispute resolution center program the aura of being connected to the court system.”

The separation of powers clause of the Illinois Constitution provides that “[t]he legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.” (Ill. Const. 1970, art. II, §1.) This provision has been recognized as meaning that the whole power of two or more branches shall not be placed in the same hands. (People v. Walker (1988), 119 Ill. 2d 465, 473, 519 N.E.2d 890.) Defendants maintain that there is no violation of this provision, because the chief judge’s rulemaking duties relate to the court’s use of DRCs, thus facilitating the exercise of judicial power. They distinguish Christiansen, emphasizing that the statute in that case involved the judiciary in mediation prior to the filing of a lawsuit. They also note that in Crocker, the court cited judicial administration of the law library fund as a principal reason for approving the statute in Ali. Crocker, 99 Ill. 2d at 453.

As the trial court noted, section 7 of article VI of the Illinois Constitution provides that the chief judge of each circuit shall have general administrative duties. Moreover, statutes authorizing the court to create rules relating to the administration of justice have been upheld against constitutional challenges. (People ex rel. Lasecki v. Traeger (1940), 374 Ill. 355, 359, 29 N.E.2d 519 (statute conferring “broad and comprehensive” rulemaking power); Diversey Liquidating Corp. v. Neunkirchen (1939), 370 Ill. 523, 526, 19 N.E.2d 363 (statute authorizing court to make all rules “necessary or expedient for the proper administration of justice in that court”).) The chief judge’s rulemaking and administrative duties under the Act do not violate the doctrine of separation of powers because they do not “ ‘infringe upon the inherent powers of the judiciary.’ ” People v. Taylor (1984), 102 Ill. 2d 201, 207, 464 N.E.2d 1059, quoting People v. Davis (1982), 93 Ill. 2d 155, 161, 442 N.E.2d 855.

Plaintiffs also cite Orenic v. Illinois State Labor Relations Board (1989), 127 Ill. 2d 453, in support of their argument. In that case, four chief judges of Illinois circuit courts sought a writ of prohibition or mandamus against the Illinois State Labor Relations Board, arguing that counties are not joint employers of the circuit courts’ nonjudicial employees for purposes of collective bargaining under the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1601 et seq.). The court agreed, saying that although a county pays the salaries of nonjudicial employees in the judicial branch, “the State, personified by the chief judge of each circuit, is their employer.” (Orenic, 127 Ill. 2d at 476.)

“Counties have the power and duty to set and pay salaries of circuit courts’ nonjudicial employees [citation], but this authority is tempered by the courts’ responsibility to administer justice and their retention of inherent power ‘to protect themselves and the public they serve against default of their constitutional obligations’ so that they may ‘perform their judicial functions with efficiency, independence and dignity’ [citation]. The retained power of the courts includes power to ‘require production of the facilities, personnel and resources reasonably necessary’ to the court’s operations. [Citation.]
Thus, not only are nonjudicial employees of a court the employees of a State agency rather than a county, but even the counties’ salary-setting and facilities-providing function is subject to the courts’ own ultimate power to ensure reasonable adequacy. Except for setting and paying salaries and providing facilities subject to ultimate court power, the counties are entitled to no other role in regard to the courts’ nonjudicial employees that might arguably be considered the role of a joint employer. And, as we have previously stated, the Illinois Constitution contemplates ‘[o]nly one unified court system operating statewide’ and ‘does not contemplate nor does it authorize the exercise of any control over or permit the imposition of a burden on the judicial system by any local entity.’ [Citations.]” (127 Ill. 2d at 479-80.)

Plaintiffs contend that “the designation of the county treasurer to receive, collect and disburse the $1 extra filing fees, is inconsistent with the rationale in Orenic of a statewide unified judicial system,” and they maintain that the State treasurer should perform these duties.

The court in Orenic was clearly concerned with a local entity asserting “control of the number, salary, or employment conditions of court personnel” (127 Ill. 2d at 477), and thus interfering with the courts’ administration of justice. The Act at issue in this case does not present the same concerns. As discussed previously, the chief judge, and not the county treasurer, administers the fund, makes yearly disbursements to qualified DRCs, and establishes rules and standards pertaining to the operation of DRCs within the circuit. (Ill. Rev. Stat. 1987, ch. 37, pars. 854(a), (b), 855(a), (b).) Thus, it is clear that the chief judge will determine how DRCs will be used to improve the efficient administration of the courts.

Finally, plaintiffs direct our attention to the minutes of the legislative debates on the Act, urging that they “revealf ] its true purpose, as well as certain misrepresentations by some of the sponsors.” Initially, we note that it is well settled that courts may consider the legislative history of an enactment in seeking to ascertain the intent of the legislature only when that intent cannot be determined from the statutory language itself (Check Inn Lounge, Inc. v. Kozubowski (1987), 164 Ill. App. 3d 1023, 1032, 518 N.E.2d 442; Waste Management of Illinois, Inc. v. Environmental Protection Agency (1985), 137 Ill. App. 3d 619, 627, 484 N.E.2d 1128), and that here the legislature has clearly expressed its intent in section 1 of the Act (Ill. Rev. Stat. 1987, ch. 37, par. 851). That statement of intent is the true purpose of the Act. Moreover, separation of powers principles preclude us from entertaining plaintiff’s claim that sponsors of the Act made misrepresentations to the General Assembly. Ill. Const. 1970, art. IV, §12 (“A member [of the General Assembly] shall not be held to answer before any other tribunal for any speech or debate, written or oral, in either house”).

For all of the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

BILANDIC, P.J., and DiVITO, J., concur.

      ‘Special legislation confers a special benefit or privilege on a person or group of persons to the exclusion of others similarly situated. It discriminates in favor of a select group without a sound, reasonable basis. [Citations.] A denial of equal protection, on the other hand, is different. It is an arbitrary and invidious discrimination that results when government withholds from a person or class of persons a right, benefit or privilege without a reasonable basis for the governmental action. [Citation.] Legislation which confers a benefit on one class and denies the same to another may be attacked both as special legislation and as a denial of equal protection [citation], but under either ground for challenge it is the duty of courts to decide whether classifications are unreasonable [citation].” Chicago National League Ball Club v. Thompson (1985), 108 Ill. 2d 357, 367-68, 483 N.E.2d 1245.