author: JUSTICE HARRISON

text:
    EAST SIDE FIRE PROTECTION DISTRICT et al., Plaintiffs-Appellants, v. THE CITY OF BELLEVILLE, Defendant-Appellee.
    Fifth District
    No. 5 — 90—0844
    Opinion filed December 6, 1991.

      Melroy B. Hutnick, of Belleville, for appellants.
    Robert J. Sprague, of Sprague & Sprague, of Belleville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court;

Plaintiff East Side Fire Protection District appeals from the judgment of the circuit court of St. Clair County dismissing count II of its “Second Amended Complaint/Petition” in which it requested that the annexation by defendant City of Belleville of certain land previously within the district be declared “unlawful and improper.” Plaintiff also appeals the circuit court’s grant of defendant’s motion for summary judgment as to count I of plaintiff’s second amended complaint/petition. We affirm.

In December 1988, defendant annexed approximately 44 acres of land located in St. Clair County, Illinois. Prior to the annexation, the subject land had been provided with fire service by plaintiff. Plaintiff originally filed its lawsuit challenging the annexation on February 10, 1989. On November 6, 1989, plaintiff filed its second amended complaint/petition consisting of two counts. In count I, plaintiff alleged that the annexation would impair its ability to serve the remainder of its territory under section 20 of the Fire Protection District Act (the Act) (Ill. Rev. Stat. 1989, ch. 1271/2, par. 38.3). In count II, plaintiff requested a declaratory judgment that the annexation was unlawful and improper, alleging that the annexation was part of a “master plan on the part of defendant intended to aggressively annex all of the land within the boundaries of the East Side Fire Protection District; and further, the purpose of this plan is not to improve or provide fire service to this area and its citizens, but rather *** to seize land so it can be held for the future use of defendant.”

Plaintiff argues that the trial court erred in granting defendant’s motion to dismiss count II, which alleged that declaratory judgment was not a proper cause of action to contest an annexation. However, it is clear that quo warranto is the only proper remedy for questioning the validity of an annexation that has been accomplished, and that a declaratory judgment action is not a concurrent remedy. Edgewood Park No. 2 Homeowners Association v. Countryside Sanitary District (1969), 42 Ill. 2d 241, 245, 246 N.E.2d 294, 297; Schallau v. City of Northlake (1979), 82 Ill. App. 3d 456, 462, 403 N.E.2d 266, 271; see also North Maine Fire Protection District v. Village of Niles (1977), 53 Ill. App. 3d 389, 394, 368 N.E.2d 516, 520 (question whether parcels have been legally annexed can only be tried by quo warranto proceedings and cannot be raised collaterally).

Here, although plaintiff filed a petition for leave to file complaint for quo warranto, defendant’s motion to dismiss this petition was granted and plaintiff has not appealed this ruling. Regardless, it has been held that loss of revenue caused by a city’s annexation of property within a fire protection district was not sufficient to establish a private interest in the district, and thus the district lacked standing to apply directly for a writ of quo warranto where, as here, the Attorney General and State’s Attorney declined to do so. (People ex rel. Freeport Fire Protection District v. City of Freeport (1980), 90 Ill. App. 3d 112, 412 N.E.2d 718.) Thus, plaintiff also has no remedy by way of quo warranto.

Section 20 of the Act is a special section passed by the legislature to provide a remedy for fire protection districts protesting annexations. (Freeport, 90 Ill. App. 3d at 114, 412 N.E.2d at 720.) Section 20 reads, in pertinent part, as follows:

“Any territory within a fire protection district that is or has been annexed to a city, village or incorporated town that provides fire protection for property within such city, village or incorporated town is, by operation of law, disconnected from the fire protection district as of the January first after such territory is annexed to the city, village or incorporated town ***. Such disconnection by operation of law does not occur if, within 60 days after such annexation ***, the fire protection district files with the appropriate court *** a petition alleging that such disconnection will cause the territory remaining in the district to be noncontiguous or that the loss of assessed valuation by reason of such disconnection will impair the ability of the district to render fully adequate fire protection service to the territory remaining with the district. When such a petition is filed, *** the court shall set it for hearing ***. At such hearing, the district has the burden of proving the truth of the allegations in its petition.” Ill. Rev. Stat. 1989, ch. 1271/2, par. 38.3.

However, the legislature, in providing this relief for fire protection districts, clearly intended to limit the remedy against disconnections to the grounds stated in the Act. (Freeport, 90 Ill. App. 3d at 114, 412 N.E.2d at 720.) Thus, plaintiff’s claim in count II that this annexation is part of defendant’s “master plan” to annex all the property within the district is also not properly raised under section 20. (See Winfield Fire Protection District v. City of Wheaton (1975), 29 Ill. App. 3d 630, 637, 332 N.E.2d 43, 49 (fire protection district may not properly argue that there will be future annexations which will result in disconnection that may impair its ability to provide adequate protection).) Therefore, it was not error for the circuit court to dismiss count II of plaintiff’s second amended complaint/petition where it failed to state a cause of action under any theory.

Plaintiff next contends that the circuit court erred in granting summary judgment for defendant on plaintiff’s remaining count, which alleged “loss of assessed valuation” under section 20 of the Act. (Ill. Rev. Stat. 1989, ch. 1271/2, par. 38.3.) Plaintiff argues that summary judgment was inappropriate where its response to defendant’s motion for summary judgment “made it clear [that] genuine issues of material fact existed.”

The sole function of the court reviewing the circuit court’s entry of summary judgment under section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005) is to determine whether the lower court correctly ruled that no genuine issue of material fact had been raised and, if none was raised, whether judgment was correctly entered as a matter of law. (Blankenship v. Dialist International Corp. (1991), 209 Ill. App. 3d 920, 923, 568 N.E.2d 503, 505.) In ruling on a summary judgment motion, the circuit court is required to construe the pleadings, affidavits, depositions and admissions on file strictly against the moving party and liberally in favor of the opponent. If any facts upon which reasonable persons may disagree are identified, or inferences may be fairly drawn from those facts leading to different conclusions, the motion must be denied and the resolution of those facts and inferences must be made at trial. 209 Ill. App. 3d at 924, 568 N.E.2d at 505-06.

However, where a party moving for summary judgment files supporting affidavits containing well-pleaded facts and the party opposing the motion files no counteraffidavits, the material facts set forth in the movant’s affidavits stand as admitted. If the opponent fails to controvert the proofs offered in support of the motion and the movant’s showing of uncontradicted facts would entitle him to judgment as a matter of law, then summary judgment is proper. Blankenship, 209 Ill. App. 3d at 924, 568 N.E.2d at 506.

In the case at bar, defendant filed a motion for summary judgment and supported it by affidavits showing that: (1) the equalized assessed valuation for plaintiff East Side Fire Protection District was $91,774,057; (2) the assessed valuation for the property annexed was $6,219; (3) the maximum tax rate for the district was .2000 and the rate being levied by plaintiff was .1199. Defendant’s motion for summary judgment alleged that, using these figures, the tax on the property annexed amounted to $74.81 and that the district could raise another $73,511 if it raised its tax to the maximum rate. Plaintiff filed no counteraffidavits, and its response to defendant’s motion for summary judgment merely alleged, without providing facts, that the district would be adversely affected because “[t]he loss of this land to the defendant could well result in the loss of fire fighters available to the District; there will be a substantial loss of revenue; and there will be a defacto [sic] tax increase by virtue of the fact that there will be fewer people to pay the taxes for the new firehouse.”

It is clear that the legislature did not intend to preclude disconnection of territory from a fire protection district because the loss in revenue would impair the required standard of fire protection, when the district is not levying at the maximum tax rate. (In re Roberts Park Fire Protection District (1975), 61 Ill. 2d 429, 438, 337 N.E.2d 8, 13.) “The legislature was aware that the financial loss resulting from a disconnection might necessitate a tax increase, and it certainly was not its intent to defeat a disconnection in order to avoid a tax increase.” 61 Ill. 2d at 438, 337 N.E.2d at 13.

Here, plaintiff failed to controvert defendant’s assertion that the district could produce an additional $73,511 in taxes if it levied at the maximum tax rate and that the monetary loss to the district from the 44 acres annexed was only $74.81. Given these uncontradicted evidentiary facts, plaintiff was obligated to identify any remaining issue of material fact in order to withstand summary judgment, and plaintiff could not rely upon its pleadings or response to the summary judgment motion alone to do so. See In re Estate of Garbalinski (1983), 120 Ill. App. 3d 767, 770-71, 458 N.E.2d 1065, 1068.

Although a plaintiff is not required to prove his case on a defendant’s motion for summary judgment, he must provide a factual basis arguably entitling him to judgment. The determination that summary judgment is appropriate will not be reversed absent an abuse of the circuit court’s discretion such that the plaintiff’s right to fundamental justice is violated. (Byong K. Choi v. Common wealth Edison Co. (1991), 217 Ill. App. 3d 952, 956, 578 N.E.2d 33, 37.) We cannot say, under the posture of this case, that the circuit court’s grant of summary judgment for defendant was inappropriate.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

WELCH and LEWIS, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LUND

license: Public Domain

text:
    JULIE WRIGHT, Petitioner-Appellant, v. HARRY WRIGHT, Respondent (J.W., Respondent-Appellee).
    Fourth District
    No. 4 — 91—0617
    Opinion filed November 27, 1991.
    James P. Brinkoetter, Jr., of Decatur, for appellant.
    No brief filed for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Petitioner Julie Wright filed a petition in the circuit court of Macon County, requesting an order of protection under the provisions of the Illinois Domestic Violence Act of 1986 (Act) (Ill. Rev. Stat. 1989, ch. 40, pars. 2311 — 1 through 2313 — 5). The petition was brought on behalf of T.W. and N.W., petitioner’s minor daughters. Respondents were Harry Wright, husband of petitioner and father of T.W. and N.W., and 14-year-old J.W. J.W. is the son of Harry Wright. The record is conflicting as to whether J.W. is the natural son or stepson of petitioner.

The petition alleged that T.W. and N.W. had been sexually abused by J.W. over a lengthy period of time at their home. The petition further alleged that Harry Wright intended to bring J.W. back into the home with the petitioner and the girls, despite knowledge of the alleged abuse. The petition asked for an order of protection against both Harry and J.W., prohibiting physical abuse, harassment, interference with the personal liberty of petitioner and the girls, intimidation of a dependent, and wilful deprivation. It further asked that exclusive possession of the marital residence be granted to petitioner, and that respondents be prohibited from entering the residence or remaining there. It also requested that petitioner be given temporary legal custody of the minor girls, and for other relief not relevant to our disposition of this appeal.

An ex parte emergency order of protection was entered by the court on August 7, 1991, restraining both respondents from having any contact with petitioner or the minor girls, and awarding exclusive possession of the marital residence and temporary legal custody of the minor girls to petitioner. The emergency order was to expire August 21, 1991. Respondents were personally served with this order and with summons to appear for a hearing on the extension of the order. Petitioner retained counsel, and she filed an amended petition for an order of protection on August 13, 1991, asking for substantially the same relief as was granted by the ex parte emergency order.

Petitioner and respondents were present at a hearing on August 15, 1991. Petitioner was represented by her counsel, and respondents were jointly represented by counsel. The only witness to testify at the hearing was James McQuaid, a police officer with the Decatur police department. He testified to an interview he had with J.W., in which J.W. had admitted twice putting his hands inside T.W.’s pants and touching her vagina. He also admitted that N.W. had, at his request, touched his penis on one occasion. Respondents’ counsel did not cross-examine the witness, and he put on no evidence on behalf of respondents.

Petitioner’s counsel requested that an order of protection be issued against J.W., as well as against Harry. When asked by the trial court if he had any objection to an order against J.W., respondents’ counsel said he had no objection to an order that merely prohibited J.W. from touching or threatening his sisters, but he would object to any order that would have the effect of restraining J.W. from living at the family home. He raised the question of where J.W. would live if he were not allowed to be in the presence of his sisters, since that would necessarily mean he would not be permitted to be in the home. Counsel further suggested the matter would be better handled in a juvenile proceeding. In response to the court’s inquiry as to whether any juvenile proceeding had been instituted, petitioner’s counsel indicated Officer McQuaid had requested the State’s Attorney to file a juvenile petition, but that nothing had yet been filed.

The trial court expressed concern about the propriety of such an order being entered against a minor and suggested the juvenile court as the proper forum. In response to the court’s query about what would happen if J.W. were to violate such an order, petitioner’s counsel indicated he believed J.W. would be subject to a juvenile proceeding, since such a violation would constitute a criminal offense. After reasoning that the Act was not the proper medium for the relief sought against J.W., the trial court declined to enter an order as to J.W., but ordered Harry Wright not to allow any contact between J.W. and his sisters for a period of one year. Petitioner appeals from the trial court’s denial of an order of protection against J.W.

We note that appellee has filed no brief on appeal. Thus, we must decide whether we are able to dispose of the appeal without the filing of such a brief. Ordinarily, where the appellee files no brief, the record is simple, and the claimed error can be decided without such assistance, we may decide the appeal despite having received only the appellant’s brief. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495.) We conclude that we can decide this case, even though appellee has not filed a brief.

Appellant has cited no case in support of her contention that the trial court had authority under the Act to enter an order of protection against J.W. Likewise, we have discovered no case law dealing with the precise question now before us. That question is whether an order of protection under the Act may be entered against a minor. We hold that such an order may be entered.

The apparent concern of the trial court at the hearing on the motion to extend the order of protection was whether it had jurisdiction under the Act to enter such an order against a minor. That concern seems to have stemmed from questions surrounding the application to a minor respondent of penalties which may be imposed for violation of an order of protection.

There can be no doubt that J.W. is a family or household member as defined in section 103(5) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 2311 — 3(5)). Those who are protected by the Act include any person abused by a family or household member. (Ill. Rev. Stat. 1989, ch. 40, par. 2312 — l(a)(i).) A petition for an order of protection under the Act may be filed by any person on behalf of a minor child who has been abused by a family or household member. (Ill. Rev. Stat. 1989, ch. 40, par. 2312 — l(b)(i).) Thus, petitioner had authority under the Act to file a petition on behalf of her minor daughters.

Since there is no case law to assist us in deciding this question, we must be guided solely by the wording of the statute itself. Section 214(a) of the Act provides, in pertinent part, as follows:

“If the court finds that petitioner has been abused by a family or household member *** an order of protection prohibiting such abuse, neglect, or exploitation shall issue ***. Petitioner shall not be denied an order of protection because petitioner or respondent is a minor.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 40, par. 2312 — 14(a).)

It is apparent from the quoted language that the legislature intended that orders of protection may be entered against minors, as well as against adults.

The trial court expressed doubts about what remedies would be available to. petitioner if an order of protection were entered against J.W. and he violated the terms of the order. This question is not before us in this appeal, and we decline to speculate as to what remedies would be available, or appropriate, in a case such as this. Our holding is limited to the specific finding that a trial court does have authority under the Act to enter an order of protection against a minor. Accordingly, because of the trial court’s erroneous view of the law, we reverse its denial of the order of protection as to J.W.

At the hearing in the court below, the judge indicated he would enter the requested order of protection against J.W. if it was possible to grant such relief. Despite this statement, and with the knowledge that entry of an order of protection in this case is indeed authorized by the Act, we believe the appropriate procedure is to remand this case to the trial court for further hearing, to determine whether the entry of an order of protection against J.W. is appropriate and, if so, what terms should be included in that order.

Reversed and remanded.

GREEN and KNECHT, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD F. BOWMAN, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0386
    Opinion filed December 5, 1991.

      Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Carol Pope, State’s Attorney, of Petersburg (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant Gerald Bowman was found guilty after a jury trial in the circuit court of Menard County of driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(a)(2)) and the enhanced offense of driving while license revoked with a prior license revoked conviction (EDWR), the original revocation having resulted from a conviction for DUI (Ill. Rev. Stat. 1989, ch. 951/2, par. 6— 303(d)). Defendant was sentenced to 2 years’ probation and 90 days in jail on the DUI, and a concurrent sentence of 2 years’ imprisonment in the Illinois Department of Corrections on the EDWR. Defendant appeals, contending the State failed to prove, and the jury was not instructed regarding, one of the elements of the offense, i.e., that defendant’s revocation rested upon a prior conviction for DUI. We disagree and affirm.

While the facts at trial were in dispute, the defendant here asks only that his felony conviction on the EDWR charge be reversed and reduced to a misdemeanor. An extended drinking spree began at 11 a.m. on July 14, 1990, and ended at approximately 2 a.m. on July 15, 1990, when a rescue squad found defendant’s vehicle in a ditch on a rural road with the intoxicated defendant behind the wheel, and an unresponsive or unconscious passenger. Defendant’s theory of the case was that he had not been the driver of the vehicle. After a jury trial, defendant was found guilty of one count of DUI and of EDWR.

Prior to jury selection and trial, at a conference on the record, the trial judge, the prosecutor, and defense counsel discussed the procedural approach to the case. The prosecutor indicated an ability to prove defendant’s revocation based on a DUI, and a later driving while license revoked (DWR) conviction based on the earlier DUI revocation. The prosecutor suggested the prior DUI not be disclosed to the jury so as to not prejudice the defendant. Defense counsel agreed the Secretary of State driver’s abstract for defendant showed his prior revocation, the fact the revocation was based on a DUI conviction, and a subsequent DWR conviction with the underlying revocation having resulted from the DUI.

The prosecutor and defense counsel agreed to admit into evidence only that part of the driving record abstract that showed defendant’s license was revoked on July 14 and July 15, 1990. The reason for the prior revocation and the conviction for DWR would not be read to the jury as part of the charges, nor would the jury be instructed on those matters. Defense counsel was quite clear in her desire to agree to this procedure, and to have only a single page of defendant’s driving record abstract disclosed to the jury. Both counsel and the trial judge agreed this procedure would be to defendant’s advantage. The prosecutor indicated her willingness to proceed in this fashion as long as there was agreement, so that on appeal no one could say she did not prove all elements of the offense.

This pretrial conference prompted an agreement to attempt to prove to the jury only that defendant’s driver’s license was revoked on July 14 and 15, but not that his prior DUI was the basis for his revocation, and that he had a prior DWR conviction based thereon. The jury instructions would be similarly tailored to reflect this stipulation. Then, if a sentencing hearing was necessary, the entire abstract and certified copies of court documents from another county would be introduced to enhance the present DWR to a felony.

The trial proceeded in accord with the stipulation, and after a finding of guilty, the additional information was formally introduced at sentencing to enhance the defendant’s DWR conviction from a misdemeanor to a felony.

In 1988, this court concluded that a prior DUI offense which results in the revocation of a person’s license is an element of the EDWR offense found in section 6 — 303(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/a, par. 6 — 303(d)). We found it was incumbent on the State to prove the defendant committed the prior DUI as well as a prior DWR based thereon to get a section 6 — 303(d) felony conviction. We further ruled the trial court must properly instruct the jury regarding all elements of the crime charged. People v. Roby (1988), 172 Ill. App. 3d 1060, 527 N.E.2d 623.

The jury here did not receive any evidence of the reason for defendant’s revocation or his prior DWR conviction. This was a deliberate plan on the part of defense counsel, the prosecutor, and the trial judge. The question presented is whether this plan — apparently to benefit defendant — runs afoul of our decision in Roby, or was error for any reason.

First, defendant cannot participate in an agreement and stipulation which accrues to his benefit, and then complain on review about the inevitable result of the agreement. He invited or agreed to the procedure and is now estopped from asserting it as error. See People v. Heard (1947), 396 Ill. 215, 219-20, 71 N.E.2d 321, 323; People v. Satterfield (1990), 195 Ill. App. 3d 1087, 552 N.E.2d 1382; People v. Hall (1986), 145 Ill. App. 3d 873, 495 N.E.2d 1379.

Second, we conclude Roby is no longer good law, and the procedure followed by trial counsel and the trial court was both correct, albeit for the wrong reasons, and required by section 111 — 3(c) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. Ill — 3(c)).

Effective July 1, 1990, section 111 — 3 was amended by the addition of subsection (c), which reads as follows:

“When the State seeks an enhanced sentence because of a prior conviction, the charge shall also state the intention to seek an enhanced sentence and shall state such prior conviction so as to give notice to the defendant. However, the fact of such prior conviction and the State’s intention to seek an enhanced sentence are not elements of the offense and may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such trial. For the purposes of this Section, ‘enhanced sentence’ means a sentence which is increased by a prior conviction from one classification of offense to another higher level classification of offense set forth in Section 5 — 5—1 of the ‘Unified Code of Corrections', approved July 26, 1972, as amended; it does not include an increase in the sentence applied within the same level of classification of offense.” Ill. Rev. Stat. 1989, ch. 38, par. 111 — 3(c).

The offense defendant committed occurred on July 15, 1990, two weeks after subsection (c) became effective. The jury was not told of the prior DWR or the DUI. Instead, the trial court considered the prior convictions for DWR and DUI at the sentencing hearing and then properly imposed an enhanced sentence.

Affirmed.

GREEN, P.J., and STEIGMANN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAX WAISVISZ, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0205
    Opinion filed December 5, 1991.

      John W. Moore and Lawrence Wolf Levin, both of Chicago, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Eider man, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

A jury convicted defendant, Max Waisvisz, of the business offense of selling tickets for more than the price printed on the ticket (Ill. Rev. Stat. 1989, ch. 1211/2, par. 157.32), and he was fined $3,000.

Defendant appeals and makes the following arguments: (1) the statute he was convicted of violating is unconstitutional because (a) it is an impermissible delegation of legislative power, and (b) it violates the provision of the Illinois Constitution concerning special legislation (Ill. Const. 1970, art. IV, §13); (2) he was not proved guilty beyond a reasonable doubt; (3) the circuit court erred in denying his motion for a mistrial which was based on the prosecutor’s repeated references to inadmissible evidence; and (4) the circuit court did not properly instruct the jury as to all elements of the charged offense. We disagree and affirm.

Defendant was charged with one count of the offense commonly known as “ticket scalping.” It was alleged that on October 5, 1990, defendant sold two tickets to a New Kids on the Block (New Kids) concert, to be held on November 8, 1990, at the University of Illinois Assembly Hall, for $40 each, rather than $25 each as printed on the tickets.

After receiving a complaint from the manager of the University of Illinois Assembly Hall concerning defendant’s sale of tickets to the November 8, 1990, New Kids concert, the University of Illinois police department arranged an undercover purchase of tickets to this concert from defendant. The State’s first witness was John Buczkiewicz, a University of Illinois police officer. Buczkiewicz stated that on October 4, 1990, acting on the instructions of a superior, he telephoned defendant and inquired concerning the availability of tickets for the New Kids concert. Buczkiewicz stated defendant told him the tickets cost $40 each for the B section and $30 each for the C section. Buczkiewicz testified defendant agreed to deliver two of the tickets to him on the next day at the Illini Union. Buczkiewicz stated that on the following day, he and defendant exchanged $80 for two B section New Kids concert tickets at the Illini Union. The price printed on each of the tickets was $25.

Also testifying on behalf of the State was Wayne Hecht, the director of the University of Illinois Assembly Hall. Hecht stated the Assembly Hall copromoted the November 8, 1990, New Kids concert with JAM Productions. Under the contract between the Assembly Hall and JAM, JAM was responsible for “bringing the talent, paying the talent, the transportation and the housing.” The responsibilities of the Assembly Hall were “to furnish the venue, the building, with all of the utilities and that sort of thing, all of the production, meaning stagehands. We do all the publicity, promotion, advertising, and we have complete control of the ticketing.” Hecht testified the Assembly Hall sold tickets to the New Kids concert over the counter, by telephone, and by mail order. The price of the tickets was $25 each, but persons ordering tickets by telephone were required to pay an additional $1 “convenience charge.”

Hecht further testified a ticket agency needs the consent of the Assembly Hall before it can sell tickets to Assembly Hall events and impose a service charge on the tickets it sells. Ticketmaster is the only agency which the Assembly Hall ever authorizes to sell tickets on its behalf and impose a service charge on the tickets. The Assembly Hall did not authorize Ticketmaster to sell tickets for the November 8, 1990, New Kids concert. Hecht further stated the Assembly Hall did not give defendant permission to sell tickets to this concert and impose a service charge.

Testifying on his own behalf, defendant basically corroborated Buczkiewicz’s testimony regarding his sale of two B section New Kids concert tickets to Buczkiewicz for $40 each. Defendant further testified that on some occasions, he both buys and sells tickets to events such as Illini basketball games for less than the prices printed on them. Defendant also stated he has a business license issued by the City of Champaign for his ticket-sales business. On cross-examination, defendant stated that when applying for this license, he said his business activity was “Tickets and tours.” Also on cross-examination, defendant admitted he did not receive permission from the Assembly Hall to impose a service charge on tickets for the New Kids concert.

Upon this evidence, the jury returned a guilty verdict. This appeal followed.

I. Constitutionality Of The “Ticket Scalping Act”

Defendant was convicted of violating “An Act in relation to the sale of tickets ***,” referred to by the parties as the “Ticket Scalping Act” (Act) (Ill. Rev. Stat. 1989, ch. 1211/2, pars. 157.31 through 157.35). In pertinent part, this statute reads:

“It is unlawful for any person, persons, firm or corporation to sell tickets for baseball games, football games, hockey games, theatre entertainments, or any other amusement for a price more than the price printed upon the face of said ticket, and the price of said ticket shall correspond with the same price shown at the box office or the office of original distribution.” Ill. Rev. Stat. 1989, ch. 1211/2, par. 157.32.
“Nothing contained in this Act was ever intended to prohibit nor shall ever be deemed to prohibit a ticket seller, with consent of the sponsor of such baseball game, football game, hockey game, theatre entertainment or other amusement, from collecting a reasonable service charge, in addition to the printed box office ticket price, from a ticket purchaser in return for service actually rendered.” (Ill. Rev. Stat. 1989, ch. 1211/2, par. 157.35.)

Defendant contends this statute is unconstitutional because (1) it improperly delegates legislative power to sponsors of various events, and (2) it violates the provision of the Illinois Constitution concerning special legislation. Ill. Const. 1970, art. IV, §13.

A. Delegation of Legislative Power

An improper delegation of legislative power consists of an attempted grant of some traditional legislative power or authority to an administrative agency or private entity. Generally, courts have found an improper delegation of legislative power to exist where the authority delegated is in effect the power to make law. The question of improper delegation of legislative power is also at issue in instances where authority is granted to a public body or person to fill vacancies in public office, or when the legislature has authorized an administrative agency or person to execute some legislative power in a prescribed manner. However, a mere grant of authority by the legislature to a private entity to exercise, with the full backing of the law, a right possessed by the entity at common law is not an impermissible grant of legislative power. Phillips v. Graham (1981), 86 Ill. 2d 274, 288-89, 427 N.E.2d 550, 556-57.

The Phillips court reviewed a statute granting the Illinois Racing Board and its delegees the right to eject or exclude from race tracks individuals “whose conduct or reputation is such that [their] presence *** may, in the opinion of the Board, call into question the honesty and integrity of horse racing or interfere with the orderly conduct of horse racing.” (Ill. Rev. Stat. 1979, ch. 8, par. 37 — 9(e).) The court found this provision was simply a grant of authority by the legislature and not an impermissible delegation of legislative power. Also, at least one other court has held a statute such as the one here at issue, which prohibits the sale of tickets to sporting and entertainment events at a price greater than the amount printed on the ticket, absent permission of the event promoter, is not an impermissible delegation of legislative power. People v. Trabucchi (1987), 160 Mich. App. 792, 797-801, 408 N.W.2d 563, 565-66.

Defendant argues the pertinent provisions of the Act are unconstitutional because they grant sponsors of sporting and entertainment events the power to determine who will be allowed to engage in the business of ticket brokering, without prescribing standards to guide event sponsors in making this determination. As the Trabucchi court observed, however, the distinction which is made in the treatment of those having the permission of the event promoter to resell tickets, and those not having such permission, is drawn by the legislature rather than by the event promoter or sponsor. To the extent the legality of selling tickets for more than the face amount depends on the consent of a private individual, ticket-scalping statutes are no different than statutes such as those which prohibit trespassing. See, e.g., Ill. Rev. Stat. 1989, ch. 38, pars. 21 — 2, 21 — 3.

A ticket to a sporting or entertainment event is a license which may be revoked at the will of its issuer. (86 C.J.S. Theaters & Shows §35 (1954).) Moreover, an event sponsor may impose restrictions on the transferability of tickets which it issues. (86 C.J.S. Theaters & Shows §37 (1954).) The Act merely gives effect to these common law rights. Thus, it is distinguishable from the statutes which were held to be impermissible delegations of legislative power in the cases relied upon by defendant. There is, for instance, no common law right to exercise an unbridled discretion to determine the content of examinations for journeymen and master plumbers’ licenses (see People v. Brown (1950), 407 Ill. 565, 581-83, 95 N.E.2d 888, 897-98), nor is there a common law right to determine various automobile races are exempt from noise pollution regulations (see People v. Pollution Control Board (1980), 83 Ill. App. 3d 802, 807-09, 404 N.E.2d 352, 356-57). Also, except by means of lawsuits seeking the abatement of nuisances, there is no common law right to exercise control over the use of neighboring real estate. See Drovers Trust & Savings Bank v. City of Chicago (1960), 18 Ill. 2d 476, 478-79, 165 N.E.2d 314, 315.

The Act merely gives legislative sanction to a right which the promoters of entertainment and sporting events have always enjoyed at common law. It is not an improper delegation of legislative power.

B. Special Legislation

Section 13 of article IV of the 1970 Illinois Constitution provides: “The General Assembly shall pass no special or local law when a general law is or can be made applicable. Whether a general law is or can be made applicable shall be a matter for judicial determination.” (Ill. Const. 1970, art. IV, §13.) A special law applies only to a certain segment of the State population, while a local law applies only to a certain geographical area within the State. A general law, by its terms, applies to all who are similarly situated. Essentially, a law violates the proscription against special legislation if there is no rational explanation for not applying the law to all persons or entities in the State, or if there is no rational explanation for not applying a general law to the persons and entities excepted from it. County of Bureau v. Thompson (1990), 139 Ill. 2d 323, 345-46, 564 N.E.2d 1170, 1181-82.

The apparent purpose of the Act is to prevent “ticket scalpers” from purchasing large blocks of tickets for the best seats at sporting and entertainment events and then reselling those tickets to the public at exorbitant prices. (See 86th Ill. Gen. Assem., House Proceedings, June 25, 1990, at 47-48.) The legislature apparently felt the public welfare would be furthered by having all such tickets freely available for sale to the general public either (1) at face value directly from the event sponsor or (2) at somewhat higher than face value from a ticket distributor acting with permission of the event sponsor. The legislature could reasonably have concluded entities acting with permission of event sponsors would not charge the exorbitant prices charged by the stereotypical “ticket scalper,” and specifically provided only a “reasonable service charge” in addition to the printed ticket price could be imposed.

The Act is a special law because it applies only to a certain segment of the State population, namely entities which sell tickets to sporting and entertainment events at more than the face amount without consent of the event sponsor. However, there is a rational basis for not extending the applicability of this law to persons who resell tickets with the permission of event sponsors. As previously noted, the legislature could reasonably have concluded permitting the sale of tickets at more than face value by entities authorized to do so by event sponsors does not result in the same evil or harm to the public as permitting unrestricted sale of tickets at more than face value by “ticket scalpers.” Unlike in Brown (407 Ill. at 583-84, 95 N.E.2d at 898-99), on which defendant relies, there are in this case some significant distinctions between the businesses affected by the challenged statute and those to which it does not apply.

Citing Callaghan & Co. v. Smith (1922), 304 Ill. 532, 136 N.E. 748, Dunbar v. American Telephone & Telegraph Co. (1909), 238 Ill. 456, 87 N.E. 521, and People ex rel. Peabody v. Chicago Gas Trust Co. (1889), 130 Ill. 268, 22 N.E. 798, defendant contends the Act is special legislation because it confers on event sponsors a monopolistic power over the resale of tickets. Permitting “ticket scalpers” to engage in their trade without regulation would not stop the exorbitant charges for goods and services which typically result from monopolistic control of a business. It could have just the opposite effect. Absent regulation, “ticket scalpers” could monopolize desirable tickets and sell them at exorbitant rates. In other words, the Act is intended to prevent the same type of harm which provisions restricting or precluding monopolistic control of various types of businesses are intended to prevent. For this reason, the Act does not run afoul of any restrictions on monopolistic control of businesses inherent in the special legislation clause.

The Act does not violate the provision of the Illinois Constitution dealing with special legislation.

II. Reasonable Doubt

Defendant notes the State presented no evidence he lacked permission of the second cosponsor of the New Kids concert — JAM Productions — to sell tickets to the concert at a price greater than original cost. Defendant contends the State therefore did not establish his guilt beyond a reasonable doubt, in that it failed to show he lacked consent of all sponsors of the concert to sell the tickets at a price greater than original cost.

It may be assumed that in creating the exemption in section 4 of the Act (Ill. Rev. Stat. 1989, ch. 1211/2, par. 157.35) for persons who collect service charges on tickets with the consent of an event sponsor, the legislature intended “sponsor” to mean the entity or entities in charge of ticket sales. It is inconceivable a sponsor with no role in the sale or distribution of tickets — here JAM Productions— would consent to a ticket broker imposing a service charge on the resale of tickets, when the sponsor in charge of ticket sales — here the Assembly Hall — was opposed to such an idea. Requiring presentation of evidence of lack of consent by a sponsor such as JAM Productions would be a useless formality. A legislature does not intend its enactments to result in absurd consequences and courts should construe statutes in a manner which may reasonably be presumed to have been within the legislature’s contemplation. (Illinois Chiropractic Society v. Giello (1960), 18 Ill. 2d 306, 312, 164 N.E.2d 47, 51.) For these reasons, defendant’s argument the State did not prove lack of consent beyond a reasonable doubt is without merit.

III. Motion For Mistrial

During direct examination of Roy Aeree, an investigator with the University of Illinois police department, the prosecutor attempted to elicit testimony concerning an ad defendant purportedly placed in a Decatur newspaper offering for sale tickets to the November 8, 1990, New Kids concert. Soon thereafter, the court sustained an objection to questions concerning the ad. Subsequently, the prosecutor, while still questioning Aeree, twice attempted to elicit testimony concerning the newspaper ad, and the court again sustained an objection to the questions. Immediately thereafter, the trial judge admonished the prosecutor, outside the presence of the jury, that if there were any further references to the newspaper ad, “that [would be] perilously close to asking me to declare a mistrial in this case.” Later, during direct examination of Wayne Hecht, the prosecutor again inquired concerning the newspaper ad, and the court again sustained an objection. At the close of the People’s evidence, defendant moved for a mistrial. In denying this motion, the court stated:

“I will admit that I entertain the same thought which I articulated that the repeated reference or attempted reference to questioning about the newspaper article, despite my ruling on it, could easily be construed as an attempt by the prosecutor to implant the contents of that ad in the jury’s mind without it being admissible and despite my evidentiary ruling. That has caused me to come about as close as I have come lately to declaring a mistrial here, but I have confidence that the jury will obey their oath and that they will follow their instructions and that they will base a verdict only on the evidence in the case.”

Defendant contends the prosecutor’s repeated references to the inadmissible newspaper ad denied him his right to a determination of guilt or innocence by a jury uninfluenced by inadmissible matter. Defendant suggests the prejudice created by the repeated references to the newspaper ad was not cured by the circuit court instructing the jury to disregard the references to the ad.

The improper admission of evidence generally requires reversal of a defendant’s conviction in cases where the evidence is closely balanced. (People v. Emerson (1983), 97 Ill. 2d 487, 501-02, 455 N.E.2d 41, 47; People v. Graham (1989), 179 Ill. App. 3d 496, 508-09, 534 N.E.2d 1382, 1390.) In this case, the evidence is not closely balanced. Defendant essentially admitted commission of the charged offense. In closing argument, defendant’s counsel suggested defendant should be acquitted (1) because of the lack of evidence defendant did not have permission of the second cosponsor of the New Kids concert — JAM Productions — to sell tickets to the concert and (2) because there was no instruction which stated one could collect a service charge on the sale of tickets “if, but only if” he had the permission of the event sponsor to do so. Other portions of defense counsel’s closing argument appear to be a veiled appeal to the jury to use its “nullification power” to find defendant not guilty even though he committed the charged offense.

As previously discussed, it was not necessary for the State to prove defendant lacked permission of JAM Productions to sell tickets to the New Kids concert. Thus, defendant’s testimony itself is sufficient to establish he committed the offense. The evidence was not closely balanced, and the trial court did not abuse its discretion in denying defendant’s motion for a mistrial.

IV. Jury Instructions

Three of the instructions given the jury read as follows:

“A ticket seller may collect a reasonable service charge provided he has the consent of the sponsor of the amusement performance.” People’s Instruction No. 8.
“A person commits the offense of sale of ticket for more than the price printed on the ticket when he sells a ticket for any amusement for a price more than the price printed upon the face of said ticket.” People’s Instruction No. 9.
“To sustain the charge of sale of ticket for more than the price printed on the ticket, the State must prove the following proposition:
That the defendant sold a ticket for an amusement for a price more than the price printed upon the face of said ticket.
If you find from your consideration of all the evidence that this proposition has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that this proposition has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” People’s Instruction No. 10.

Defendant contends People’s instruction No. 10 failed to inform the jury that lack of consent of the event sponsor is an element of the offense of ticket scalping. Defendant asserts People’s instruction No. 8 did not cure this error, because it does not state how it affects and relates to People’s instruction No. 10 and does not advise the jurors what they should do if they find defendant had the consent of the event sponsor. Defendant contends, therefore, People’s instruction Nos. 8 and 10 conflict and could only have confused the jury.

Defendant has waived this argument. At the jury instructions conference, defendant objected to People’s instruction No. 8 on the grounds it was misleading, it was surplusage, and it was unnecessary. Defendant suggested People’s instruction Nos. 9 and 10 adequately informed the jury of the issues in the case. Also, defendant contended People’s instruction No. 8 misstated the law because it suggested (although it did not explicitly state) the sale of tickets at more than the original price is permissible “if, but only if” the event sponsor consents, and the law is to the contrary.

Generally, failure to present to the trial court a ground of objection to a jury instruction results in waiver of the objection. (People v. Abrams (1971), 48 Ill. 2d 446, 461, 271 N.E.2d 37, 46.) Under Supreme Court Rule 451(c), however, “substantial defects [in instructions] are not waived by failure to make timely objections thereto if the interests of justice require.” (134 Ill. 2d R. 451(e).) Failure to give instructions which adequately define all essential elements of a charged offense is usually plain error, despite the absence of a proper objection at trial. (People v. Ogunsola (1981), 87 Ill. 2d 216, 223, 429 N.E.2d 861, 864.) However, where there is no dispute as to the existence of an element of the charged offense, failure to instruct as to that element may not be plain error. For instance, where there is no dispute as to the value of stolen property, failure to instruct on the value of the stolen property as an element of the offense of theft is not plain error. People v. Tannenbaum (1980), 82 Ill. 2d 177, 182-83, 415 N.E.2d 1027, 1030-31.

In this case, the failure to provide more specific instructions as to the lack of consent by the sponsor as an element of the charged offense was not plain error. Defendant acknowledged he lacked the consent of the Assembly Hall — the sponsor in charge of ticket sales — to sell tickets for the New Kids concert at a price greater than their face value. And, as previously indicated, “sponsor,” in the context of section 4 of the Act, refers only to the sponsor in charge of ticket sales. Since there was no dispute defendant did not have consent of the Assembly Hall to sell tickets to the New Kids concert at a price greater than their face value, any error in failing to properly instruct the jury as to the element of lack of consent was not plain error requiring reversal of defendant’s conviction.

For the reasons stated, we affirm the judgment of the circuit court of Champaign County.

Affirmed.

GREEN, P.J., and McCULLOUGH, J., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MALCOLM GRAY, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0011
    Opinion filed December 5, 1991.

      Daniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant, Malcolm Gray, was convicted by a jury of official misconduct, in violation of section 33 — 3(b) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 33 — 3(b)), and sentenced to 30 months’ probation. The trial court imposed various probationary conditions upon defendant, including a six-month jail sentence and a $60,000 restitution payment. On appeal, defendant argues that the official misconduct statute does not apply to the facts of this case. We agree and reverse.

I. Facts

The facts herein are essentially undisputed. Accordingly, we will discuss them only to the extent necessary to put defendant’s argument in proper context.

In September 1982, defendant was hired as a janitor by the Illinois Veterans Home (Home) in Quincy, Illinois. The Home is run by the Illinois Department of Veterans Affairs. During the course of a 30- to 45-minute intake interview, the personnel manager gave defendant various documents that contained lengthy lists of the rules of his employment. As described by defendant, his job at the Home was “to swing a mop. I was a janitor.” The personnel manager described defendant’s position as that of a housekeeper, doing general cleaning, sweeping, dusting, and the washing of windows and walls.

In 1987, defendant met Robert Jones when Jones became a resident of one of the buildings on the Home’s campus. At the time, Jones was in his mid-70’s and defendant was in his mid-50’s. Defendant was generally friendly with the residents and would visit with them as he performed his janitorial duties. Defendant saw Jones daily, spoke with him frequently, and they became friends. Jones testified that defendant was a housekeeper in the building in which Jones lived, so Jones would “see him every day as he would clean up [the living quarters.]” Jones would give defendant bread recipes, and defendant would bake bread on his days off and bring it to Jones. Defendant also occasionally ran errands for Jones into Quincy to pick up special items that Jones did not have available to him at the Home.

During the course of their conversations, defendant told Jones that defendant’s dream was to own and operate a restaurant. Defendant also told Jones about having a potential investor for the restaurant. Jones frequently gave defendant advice about how defendant should run the restaurant once it opened. Ultimately, the investor backed out. Defendant told Jones the sad news, and sometime later, in May 1988, Jones approached defendant and offered to invest $60,000 in defendant’s restaurant. Because defendant had not known (and had no way of knowing) that Jones had any money, he was astounded by the offer. The subject of Jones’ making this investment had never before come up, nor had defendant ever asked Jones for any money. Defendant considered Jones’ offer to invest for a few days. Before accepting it, he took Jones to see the building in Quincy that defendant and his wife purchased in 1974 wherein they planned to open the restaurant.

After defendant accepted Jones’ offer, Jones obtained $60,000 of his savings and gave the money to defendant. Jones also drafted a document in which defendant assigned his interest in the building to Jones in exchange for the $60,000.

Defendant began to renovate the building, and in October 1988, he resigned his job as a janitor at the Home and began to work full time at the restaurant. Defendant took Jones to the building on several occasions to see the progress of the renovations.

Defendant opened the restaurant in January 1989, but it never proved profitable. He wound up closing it less than eight months later.

Starting in February, Jones had a falling out with defendant when Jones had an argument with the accountant defendant hired to keep the books for the restaurant. Jones did not like how the books were being kept and thought there was something fraudulent about them. Jones also did not like the fact that, at the accountant’s suggestion, defendant had incorporated the new restaurant. Because defendant did not understand any of the bookkeeping discussions, he stayed out of the arguments between the accountant and Jones.

In April 1989, Jones demanded that defendant return Jones’ investment. However, defendant had spent all of the money on the restaurant. Jones hired an attorney and filed suit against defendant and his wife, seeking the return of the $60,000 investment. At the time of defendant’s trial in the present case, that civil action was still pending.

In July 1990, the State charged defendant with official misconduct, alleging that he,

“a public employee, being an employee of the Illinois Veterans Home, while acting in his official capacity, knowingly performed an act which he knew to be forbidden by law to perform, that law being the Department of Veterans Affairs Illinois Veterans Home Personal Conduct Rules For Employees, to wit: having any financial transactions with clients or members, by receiving [cash] from Robert Jones and entering into a restaurant business with Robert Jones.”

Section 33 — 3(b) of the Code, in pertinent part, reads as follows:

“Official Misconduct. A public officer or employee commits misconduct when, in his official capacity, he commits any of the following acts:
(b) Knowingly performs an act which he knows he is forbidden by law to perform[.]” Ill. Rev. Stat. 1989, ch. 38, par. 33— 3(b).

One of the documents the personnel manager gave defendant when she hired him contained a rule that prohibited Home employees from “soliciting or accepting gratuities for services rendered, borrowing from clients or members, or loaning money to clients or members, [and] having any financial transactions with clients or members.” The phrase “clients or members” meant residents of the Home, such as Jones. Defendant acknowledged that he was generally aware of the many rules of the Home and testified that his basic understanding was “that he was to treat the residents as he would want to be treated.” He also acknowledged that he understood his involvement with Jones violated a rule against financial dealings with residents of the Home and that he could lose his job as a result. However, he insisted that he did not know he was violating any law.

II. Analysis

In People v. Steinmann (1978), 57 Ill. App. 3d 887, 897, 373 N.E.2d 757, 764, the court had to resolve whether a defendant convicted of official misconduct was acting in his official capacity when he performed certain acts. The court wrote the following: “[T]he offense [of official misconduct] was designed to reach those situations where a public officer or employee has in some fashion exploited his official position to the detriment of the public good.” (Emphasis added.) (Steinmann, 57 Ill. App. 3d at 897, 373 N.E.2d at 764.) In People v. Adams (1978), 64 Ill. App. 3d 547, 549, 381 N.E.2d 738, 740, the court cited Steinmann approvingly and held that official misconduct was designed to reach those situations where a public officer or employee had in some fashion exploited his official position to the detriment of the public good. In People v. Kleffman (1980), 90 Ill. App. 3d 1, 3, 412 N.E.2d 1057, 1060, the court also cited Steinmann approvingly and held that “[a]n act is performed in one’s official capacity if it is accomplished by exploitation of his position as a public officer or employee.” See also People v. Samel (1983), 115 Ill. App. 3d 905, 908, 451 N.E.2d 892, 895.

Two elements of the offense of official misconduct as charged in the present case are that (1) defendant knowingly performed an act which he knows he is forbidden by law to perform, and (2) he did so in his official capacity. Thus, the first question which this court must address is what is the “official capacity” on this record of a janitor who is employed “to swing a mop” at a State institution such as the Home? Our answer is that there is no such “official capacity.” Indeed, to even ask the question shows the absurdity of the State’s efforts to include this defendant within the official misconduct statute.

We view the holding in Steinmann and its progeny as meaning that a State employee has an “official capacity” within the meaning of section 33 — 3(b) of the Code only if he has some official position that could be exploited in some fashion to the detriment of the public good. On the facts of this case, just what can the State contend was defendant’s “official position” that he could exploit to the detriment of the public? Perhaps he would not swab down the floors of the Home’s buildings as thoroughly as he once did nor clean the toilets as diligently. Or perhaps he would fail to keep toilet paper rolls in the bathroom. Of such stuff is not “exploitation of the public” made.

As we stated earlier, when the defendant was hired, he was given several documents which contained multiple rules of conduct. One of those documents contained the rule, which we quoted and which was paraphrased in the charge against defendant, prohibiting employees from “accepting gratuities from *** or having any financial transactions with clients or members.” However, the defendant was also given another list of rules, entitled “Code of Conduct for State Employees,” which described itself as applicable to all employees and all State departments, boards, commissions, and agencies. Paragraph 5 thereof reads as follows:

“No officer or employee may solicit, accept, or agree to accept gifts, loans, gratuities, discounts, favors, hospitality, or services from any person [known] to have substantial economic interests, distinct from those of the general public and which may be affected by actions of such officer or employee in the performance of his official duties, under circumstances from which it could reasonably be inferred that a major purpose of the donor is to influence him in the performance of his official duties.” (Emphasis added.)

We emphasize that the case before us is not one in which an elderly, bedridden patient looks to a housekeeper to perform those tasks the patient can no longer perform himself and that are necessary to the patient’s well-being and proper hygiene. Instead, this is a case in which (at most) defendant abused a friendship that developed between two men of equal discernment, neither of whom was dependent in any way on the other.

Although the line we draw in this holding regarding when a State employment constitutes an “official capacity” may not be as bright as we might like, we have no trouble at all discerning its clear boundaries when evaluating this defendant’s employment duties as a janitor.

We note that usually no question arises about the official capacities of the defendants in official misconduct cases (other than the present case) that have gone through the appellate process. For instance, consider the following official misconduct cases and the positions held by the defendants therein: Steinmann (police lieutenant); Kleffman (mayor); Samel (police officer); People v. Bassett (1988), 169 Ill. App. 3d 232, 523 N.E.2d 684 (deputy county assessor); People v. Smith (1965), 57 Ill. App. 2d 74, 206 N.E.2d 463 (police officer); People v. Locascio (1985), 106 Ill. 2d 529, 478 N.E.2d 1358 (police officers); and People v. Scharlau (1990), 141 Ill. 2d 180, 565 N.E.2d 1319 (members of city council). We do not view the absence of janitors from this list as inadvertent.

Defendant also argues on appeal that the employment rule he is alleged to have violated does not rise to the level of “an act which [defendant] knows he is forbidden by law to perform,” as required by section 33 — 3(b) of the Code. (Ill. Rev. Stat. 1989, ch. 38, par. 33— 3(b).) In response, the State cites Samel and claims that the rule prohibiting Home employees from having any financial transactions with residents thereof was “a properly promulgated administrative rule or regulation and was an expression of legislative policy and was therefore a law as the term is used in [section 33 — 3(b) of the Code.]” This argument, however, does not accurately portray the holding in Samel, which is as follows:

“A properly promulgated administrative rule or regulation, like a civil statute, is an expression of legislative policy — not in the sense that a rule constitutes legislation [citation], but, rather, because an agency in the proper exercise of its rule making power gives expression to legislative policy. Indeed, when an administrative agency exercises its rule making power, it performs a quasi-legislative function. [Citation.] Administrative rules and regulations have the force and effect of law and, like a statute, enjoy a presumption of validity. [Citations.] Neither at the trial court level nor on appeal has the defendant challenged the validity of the regulation in question on the basis that it was not properly promulgated pursuant to legislative authority or that it was not binding on him.” (Emphasis added.) Samel, 115 Ill. App. 3d at 910, 451 N.E.2d at 896.

All the record before us demonstrates regarding the rule of employment in question is that someone in authority at the Home thought this rule to be desirable, included it in the list of employment rules to be passed out to all employees, and defendant was given a copy. Indeed, the Home’s personnel manager testified that the list of rules that contained the employment rule in question was generated by the Home’s administrative staff and applied to no other facility of the Department of Veterans Affairs. We have serious misgivings as to whether a mere rule of employment, without more, meets the standard of section 33 — 3(b) of the Code, prohibiting acts which an employee knows he is forbidden by law to perform. To illustrate our concerns, we list the following other conditions of defendant’s employment selected from a series of 11 specific conditions entitled “Employee Violations of a More Serious Nature (these can lead to suspension without pay or immediate discharge, even on the first offense),” in which the employment rule at issue in the present case (designated as paragraph f) was contained:

“a. Deliberately refusing to obey the orders of a supervisor. Using obscene or abusive language.
b. Disobeying instructions, procedures and policies, whether through neglect, procrastination or deliberate disobedience.
* * *
d. Coming to work under the influence of alcohol or unprescribed narcotics or drugs or using or possessing drugs or alcohol while on facility property. Refusing to be tested if there is reasonable cause to suspect such influence.
e. *** [KJeeping a member out of bed longer than necessary and/or prescribed; using vulgar or disrespectful language or slang expressions that degrade a client or member’s race, national origin or religion, ridiculing a client or member and any other similar acts. An employee is also subject to disciplinary action if he/she witnesses any abuse or mistreatment of a member or client and does not report it promptly to his/her supervisor.
* * *
h. Deliberately *** abusing property that belongs to the [Home, fellow employees, visitors, or residents.]
* * *
j. Deliberately interfering with or delaying the work of other employees.
k. Engaging in unlawful or indecent conduct on Department or facility premises within or outside regular work hours.”

At the sentencing hearing in this case, the trial court similarly addressed this list of employment rules and stated the following:

“And in sentencing Mr. Gray I will repeat what I said earlier, that I have never seen a case like this. And [defense counsel] has indicated he has not either. Mr. Gray is charged not with defrauding anybody, not with taking advantage of anybody, not with cheating anybody. He’s charged with violating a rule that says you cannot have financial transactions with clients. Those same rules that say you cannot have financial transactions with clients also say you cannot swear in the presence of a client. Under the stand taken by the People, Mr. Gray could be prosecuted for a Class III Felony for swearing in front of Mr. Jones. That doesn’t make any sense at all to me.
* * *
So I am not so certain in my own mind that the State has properly charged the Defendant or has filed a proper charge. *** I do hope that the issue is brought before an Appellate Court and they can rule on whether or not this is really a crime, quite frankly.
The evidence was in this case, that Mr. Jones, who testified here and at the trial, was aware of Mr. Gray’s desire to have a restaurant and that Mr. Jones offered to give the money to Mr. Gray and that Mr. Gray, the first time, did not accept it but put Mr. Jones off.
Mr. Jones has impressed the court with his knowledge. He is, as Mr. Heck said in closing argument, Mr. Jones is as sharp as a tack. And he exhibited that here once again. This isn’t a case where an elderly, frail gentlemen was taken advantage of by any means. I believe it was a case where Mr. Jones thought he had a chance to help Mr. Gray and at the same time make an extra dollar or two for himself.
So I don’t want any indications to come out, therefore, that the court is in any way finding that any illegality was done by Mr. Gray other than the violation of this rule. And like I said, I am not so certain that the Appellate Court will affirm this conviction if it’s appealed. *** I would not be surprised if the Appellate Court would rule that this is not a criminal violation.”

As did the trial court, we express our skepticism that a janitor in State employment commits a Class 3 felony by committing any of the “employee violations of a more serious nature.” That list no doubt includes a lot of bad things an employee might do or say, and the State might be fully justified in suspending an employee without pay or immediately discharging him or her for such conduct. However, we cannot believe that deeming such behavior felonious is what the legislature had in mind when it enacted the official misconduct statute.

For the reasons stated, we reverse the judgment of defendant’s conviction.

Reversed.

KNECHT and LUND, JJ., concur.


text:
      In re C.B. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. James Longshaw, Respondent-Appellant).
    Fourth District
    No. 4 — 91—0356
    Opinion filed November 27, 1991.
    Lynne R. Feldman, of Pavia & Marsh, of Urbana, for appellant.

      Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In April 1991, the trial court terminated the parental rights of respondent, James Longshaw, as to his two sons, six-year-old C.B. and five-year-old J.B. The court had previously found respondent to be an unfit parent, pursuant to sections l(D)(b) and (D)(m) of the Adoption Act (Act) (Ill. Rev. Stat. 1989, ch. 40, pars. 1501(D)(b), (D)(m)). The trial court’s termination of respondent’s parental rights occurred after several years of effort by the trial court and the Department of Children and Family Services (DCFS) to get respondent and the mother of C.B. and J.B. to correct their parental deficiencies. In June 1988, the mother had surrendered her parental rights regarding these two children.

On appeal, the sole issue respondent raises is that the trial court erred when it refused to consider his wishes that his children be placed for adoption in a home practicing the Mormon religion. At the April 1991 hearing in which the court terminated respondent’s parental rights, respondent asserted that even if the trial court terminated his parental rights, the court should still consider his wishes that these children be raised in the Mormon church. The trial court disagreed and declined to order or permit respondent’s wishes regarding his children’s religious upbringing to be considered. Respondent asks this court to remand this case for further proceedings and asks us to direct the trial court to enter orders regarding the placement of these children consistent with the respondent’s religious preferences.

We affirm the trial court’s orders.

In In re Adoption of Syck (1990), 138 Ill. 2d 255, 274-75, 562 N.E.2d 174, 183, the Illinois Supreme Court wrote the following:

“Termination of parental rights destroys the parent-child relationship. The effect of a termination of parental rights is made grimly clear by section 17 of the Adoption Act:
‘After the entry either of an order terminating parental rights or the entry of a judgment of adoption, the natural parents of a child sought to be adopted shall be relieved of all parental responsibility for such child and shall be deprived of all legal rights as respects the child, and the child shall be free from all obligations of maintenance and obedience as respects such natural parents.’ (Ill. Rev. Stat. 1987, ch. 40, par. 1521.)”

In In re T.G. (1986), 147 Ill. App. 3d 484, 488, 498 N.E.2d 370, 373, the court wrote the following:

“A finding that a ward’s parents are ‘unfit,’ combined with the court’s subsequent order appointing and empowering a guardian to consent to adoption, terminates the entire bundle of parental rights, custodial and non-custodial.”

We agree with T.G. and hold that after a parent’s parental rights have been terminated under the Act, that parent has no remaining residual rights of any kind, nor does that parent have any standing to raise any concerns or state any preferences regarding the ultimate placement of his or her child for adoption. When viewed from the perspective of the child, the parent whose parental rights have been terminated no longer exists. To be blunt, the situation is as if the parent had died.

We note that at the dispositional hearing in which respondent’s parental rights were terminated, the court, the attorneys, and a DCFS caseworker discussed the policy of DCFS regarding whether the religious wishes of a parent whose parental rights are terminated are taken into consideration by DCFS when it places children for adoption. The DCFS caseworker responded that the religious wishes of such a parent “have to be taken into consideration when placing the child for adoption.” The trial court was astonished by that response, to the point that it discussed the possibility of appointing a guardian other than DCFS, such as the probation office, who could place these children, consent to their adoption, and be concerned solely with the best interests of the children. Ultimately, the trial court stated its view that these children should be placed in accordance with their best interests, without regard to the religious preferences of respondent, and appointed DCFS as guardian with authority to place them and to consent to their adoption.

We mention this discussion because we share the trial court’s astonishment at this policy of DCFS. Earlier in this opinion we made clear that the wishes of parents concerning their children whose parental rights have been terminated are to be totally disregarded. Furthermore, even if that were not the case, DCFS is duty bound to carry out its guardianship duties with regard to children whom the court entrusts to DCFS in accordance solely with the best interests of those children.

For instance, in the present case, the record shows that these children have lived for years -with a foster family that wishes to adopt them. However, that family does not practice the Mormon faith. Noting this situation and the request of the respondent that his children be placed in a family that practices the Mormon faith, the trial court stated the following: “To compel the removal of these children at this point would be nothing short of emotional torture.” We agree with the trial court and trust that in the future, DCFS -will concern itself solely with the best interests of the children when it decides what adoptive home is best for them.

For the reasons stated, the judgment of the circuit court is affirmed.

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.


author: JUSTICE GREEN

text:
    ALVIN B. GROVES, Plaintiff-Appellee, v. THE DEPARTMENT OF PROFESSIONAL REGULATION, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0209
    Opinion filed November 25, 1991.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for appellant.
    William E Trapp and Terry D. Charlton, both of Brown, Hay & Stephens, of Springfield, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

In May 1990, plaintiff Alvin B. Groves applied to defendant Illinois Department of Professional Regulation (Department) for a license to practice in Illinois as a professional engineer. His application was based upon the provisions of section 19 of the Professional Engineering Practice Act of 1989 (1989 Act), which authorizes the Department to license an applicant by a process called “endorsement” (Ill. Rev. Stat. 1989, ch. 111, par. 5219). The procedure is based upon the applicant having been licensed in another State under certain circumstances. On July 26, 1990, the Department denied plaintiffs application, ruling that his Texas license was not issued under circumstances meeting the requirements of section 19. The Department found that because plaintiff took the principles and practice engineering examination prior to obtaining four years’ professional work experience, he did not meet the statutory requirements, apparently a reference to section 9(2) of the Professional Engineering Act, enacted in 1945 (1945 Act) (Ill. Rev. Stat. 1985, ch. 111, par. 5112(2)). Pursuant to section 37 of the 1989 Act (Ill. Rev. Stat. 1989, ch. 111, par. 5237), plaintiff proceeded under the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.) before the circuit court of Sangamon County. By order of February 14, 1991, that court reversed the Department and ordered that an Illinois license be issued to plaintiff. The Department has appealed. We affirm.

The evidence in this cause is undisputed. The decision turns upon statutory interpretation. Section 7 of the 1989 Act (Ill. Rev. Stat. 1989, ch. 111, par. 5207) provides that in passing upon license applications, the Department shall receive a written recommendation from the State Board of Professional Engineers of the Department of Professional Regulation (Board).

Section 19 of the 1989 Act lists the requirements for license in Illinois for an applicant licensed under the laws of another jurisdiction:

“The Department may, upon the recommendation of the Board, license as a professional engineer, without examination *** an applicant who is a professional engineer registered or licensed under the laws of another state *** if the applicant qualifies under Section 10 of this Act, or if the qualifications of the applicant were at the time of registration or licensure in another jurisdiction substantially equal to the requirements in force in this State on that date.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 111, par. 5219.

Accordingly, we look to the provisions of the 1945 Act (Ill. Rev. Stat. 1985, ch. 111, par. 5101 et seq. (repealed by Pub. Act 81 — 999, §4.5, eff. Oct. 1, 1989, as amended by Pub. Act 82 — 953, eff. Dec. 31, 1989)), which was in effect at the time plaintiff was licensed as an engineer by the State of Texas. The record shows the Texas license was obtained in October 1986. Under the terms of section 19 of the 1989 Act, the question before the Board and the Department was whether, in October 1986, plaintiff had qualifications “substantially equal to the requirements in force in this State on that date.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 111, par. 5219.) The statutory requirements in force in Illinois in October 1986 for issuance of a license as a professional engineer are contained in section 9 of the 1945 Act, which provided, in pertinent part, as follows:

“(2) A graduate of an approved engineering curriculum of at least 4 years who submits evidence of an additional 4 years or more of experience in engineering work *** shall be admitted to a nominal 8 hour written examination in the fundamentals of engineering, and a nominal 8 hour written examination in the principles and practice of engineering. Upon passing both examinations, the applicant shall be granted a certificate of registration to practice professional engineering in this State, if he is otherwise qualified; or
(3) An applicant having satisfactorily completed a 4 year college curriculum resulting in a degree in basic engineering or related science and 8 years or more of progressive experience in engineering work *** and who passes a nominal 8 hour written examination in the fundamentals of engineering *** and a nominal 8 hour written examination in the principles and practice of engineering, shall be granted a certificate of registration to practice professional engineering in this State, if he is otherwise qualified.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 111, pars. 5112(2), (3).

The circuit court ruled plaintiff was entitled to a license by endorsement because he met the requirements of section 9(3) of the 1945 Act. On appeal, plaintiff maintains this was correct. We agree. The record before the Department showed (1) plaintiff received a bachelor of science degree in civil engineering from Texas A&M University on December 8, 1978; (2) prior to issuance of his Texas license on October 23, 1986, he had almost eight years’ experience in engineering work (the Department does not contend this experience does not meet the “progressive” requirement of section 9(3) of the 1945 Act), including the 10-month period spent at the University of Edinburgh, Scotland (September 1980 to July 1981); and (3) he passed examinations of the type referred to in section 9(3) of the 1945 Act in 1978, prior to receiving his bachelor’s degree from Texas A&M. Thus, the record indicates plaintiff’s qualifications are substantially equal to the fully expressed requirements of section 9(3) of the 1945 Act.

The Department rejects plaintiff’s theory that he meets the requirements of section 9(3) of the 1945 Act, arguing that certain unstated order-of-fulfillment requirements implicitly control section 9(3) to make it consistent with section 9(2) of the 1945 Act and to meet the public policy of preventing injury to the public by incompetent professionals. (Lindsey v. Edgar (1984), 129 Ill. App. 3d 718, 721, 473 N.E.2d 92, 94.) The Department points out that we should look to the entire statute to find the legislative intent (Howard v. Forbes (1989), 185 Ill. App. 3d 148, 541 N.E.2d 685) and construe it in such a way as to give all its provisions a harmonious effect. Department of Revenue v. Smith (1986), 150 Ill. App. 3d 1039, 1048, 501 N.E.2d 1370, 1378.

At the heart of the Department’s contention of implied conditions in section 9(3) of the 1945 Act is the curious difference between the work experience requirements of subsections (2) and (3) of section 9. Subsection (2) required only four years’ experience but required those four years to be “additional” to the four years of college work and to be completed prior to taking the written examinations. (Ill. Rev. Stat. 1985, ch. 111, par. 5112(2).) In Hansell v. Department of Registration & Education (1983), 113 Ill. App. 3d 862, 448 N.E.2d 1, this court construed section 9(2) of the 1945 Act to require the four years of experience ‘to have been obtained after completion of the prescribed four years of college work. Unlike subsection (2), subsection (3) required eight years of experience but made no requirement as to when that experience must be obtained nor as to when the written examinations must be taken. The issue in that case was whether the 43 months of professional experience the applicant had completed post degree, together with the five months’ experience attained prior to graduation, comported with the requirements of section 9(2) of the 1945 Act. We held that it did not. The Department points out that subsection (2) required an applicant be a “graduate of an approved engineering curriculum,” while subsection (3) only required completion of a four-year college curriculum in engineering or a related science. The Department maintains it is illogical to require applicants qualifying under subsection (2) (which the Department claims describes applicant’s educational qualifications and has stricter scholastic requirements) to obtain their work experience after receipt of a bachelor’s degree and to complete the written examinations only after that experience is acquired, while permitting applicants qualifying under subsection (3) (with its less stringent scholastic requirement) to obtain their work experience and pass written examinations at any time.

The Department also notes that section 9.2 of the 1945 Act provided that after “completion of 4 years of professional experience, an engineer-in-training *** is eligible to apply for the second part of the examination” and upon passage, to be licensed. (Ill. Rev. Stat. 1985, ch. 111, par. 5114.) Thus, an applicant who proceeded through the “engineer-in-training” route to obtain a license must, like those qualifying under section 9(2) of the 1945 Act, have some professional experience before taking “the second part of the examination.”

While we attempt to construe a statute in such a way as to give effect to the public policy involved and to give consistency to all its parts, we must also consider the plain and ordinary language used. (Lyon v. Hasbro Industries, Inc. (1987), 156 Ill. App. 3d 649, 654, 509 N.E.2d 702, 705.) Section 9(2) of the 1945 Act made clear the order in which the statutory requirements were to be fulfilled: professional experience must be obtained after graduation and prior to taking and passing the professional examinations. As plaintiff points out, section 9(3) is entirely silent on the order in which the statutory requirements may be fulfilled. A logical reason for the difference could be a recognition that progressive work experience of sufficient longevity is its own demonstration of proficiency, while an applicant with only a minimum of four years’ work experience needs to demonstrate his proficiency through examination prior to licensing. By omitting the order-of-fulfillment strictures present in section 9(2), the legislature may well have intended in section 9(3) to allow a degree of flexibility in the attainment of the qualifications for professional engineer when a practical proficiency, evidenced by hands-on experience, was demonstrated.

Were we to conform the provisions of subsection (3) to those of subsection (2) by engrafting the order-of-fulfillment requirements, the difference between the two sections then would be that applicants who are graduates of “an approved engineering curriculum” would have to qualify under section 9(2), and those who are not would have to qualify under section 9(3) by obtaining eight years of experience after college but before taking the examination. Such a result would accrue pursuant to section 10 of the 1989 Act (Ill. Rev. Stat. 1989, ch. 111, par. 5210), but we conclude that we would be rewriting section 9 of the 1945 Act by judicial fiat if we placed such an interpretation on the language used there.

The circuit court properly followed the legislative language setting forth the licensing requirements in force in this State in October 1986, when plaintiff was licensed in Texas. We affirm the decision of the circuit court requiring a license to issue.

Affirmed.

LUND, P.J., and STEIGMANN, J., concur.