author: JUSTICE GORMAN

text:
    KNOX COUNTY DEMOCRATIC CENTRAL COMMITTEE et al., Plaintiffs-Appellants, v. KNOX COUNTY BOARD et al., Defendants-Appellees.
    Third District
    No. 3—91—0892
    Opinion filed July 23, 1992.

      Norman M. Winick, of Galesburg, pro se, for appellants.
    Raymond Kimbell III, State’s Attorney, of Galesburg, for appellees.
   JUSTICE GORMAN

delivered the opinion of the court:

The plaintiffs, Norman M. Winick and the Knox County Democratic Central Committee, brought suit seeking declaratory and injunctive relief against the defendants, the Knox County Board (Board) and Richard D. Allen, for excluding the Henry Hill Correctional Center (Henry Hill) as a part of the population when it apportioned the county into five voting districts. The trial court dismissed the complaint. The plaintiffs appeal.

The record reveals that according to the 1990 Federal decennial census, Knox County has a population of 56,393. Of those residents, 1,248 are incarcerated in Henry Hill.

In 1991, the Board adopted a resolution which divided the county into five voting districts. Although the apportionment was based on population, the resolution did not include the inmate population of Henry Hill within its apportionment base.

On July 2, 1991, the plaintiffs brought suit against the Board seeking declaratory and injunctive relief. The plaintiffs alleged that it was improper for the Board to exclude Henry Hill from the apportionment base. The plaintiffs contended that the Board violated both the equal protection clause (U.S. Const., amend. XIV) and the Counties Code (Ill. Rev. Stat. 1991, ch. 34, par. 1 — 1001 et seq.).

The trial court held that the Board did not act improperly in excluding Henry Hill from the apportionment base. In dismissing the plaintiffs’ complaint, the court found no discriminatory or gerrymandering motives on the part of the Board. The court further found that the Board was acting in furtherance of legitimate and sound governmental interests.

On appeal, the plaintiffs contend that the trial court erred in concluding that the Board did not need to include the population of Henry Hill when it apportioned the districts. In support of this contention, the plaintiffs point out that section 2 — 3003(l)(a) of the Counties Code requires that each district be equal in population to each other district. (Ill. Rev. Stat. 1991, ch. 34, par. 2 — 3003(lXa).) Additionally, section 2 — 3001(c) of the Counties Code defines population as, “the number of inhabitants as determined by the last preceding federal decennial census.” (Ill. Rev. Stat. 1991, ch. 34, par. 2 — 3001(c).) Therefore, the plaintiffs argue, because the population of Henry Hill was included in the 1990 Federal decennial census, that population must also be included in the apportionment base for redistricting purposes. We disagree.

States are not required to include aliens, transients, temporary residents, or persons denied the vote for conviction of crime in the apportionment base by which their legislators are distributed and against which compliance with the equal protection clause is to be measured. (Burns v. Richardson (1966), 384 U.S. 73, 16 L. Ed. 2d 376, 86 S. Ct. 1286.) Accordingly, we agree with the trial court that the Board’s actions were not violative of the equal protection clause.

We recognize that when read together, sections 2 — 3001(c) and 2— 3003(l)(a) suggest that the Board is required to include the Henry Hill inmates within the apportionment base. However, to require that ineligible voters must always be included in the apportionment base merely because they were included in the census would violate the equal protection clause.

The problem with the plaintiffs’ position would be more readily apparent if the inmate population were 15,000 rather than 1,248. Under such circumstances, if the plaintiffs’ position were adopted, the few eligible voters residing in the same district as the inmates would have voting power equal to that of hundreds of eligible voters in the other districts.

Here, the Board recognized that the same type of vote enhancement and dilution would occur on a smaller scale unless they took steps to avoid it. Had the Board adopted the plaintiffs’ position and automatically included an extra 1,248 ineligible voters in a single district, there would have been substantially fewer eligible voters in that district when compared to the other four districts. Thus, the eligible voters in that district would have possessed a disproportionate share of voting power. Accordingly, the Board excluded the nonvoting inmates when constructing the districts.

We conclude that the Board’s action was intended to equalize the relative value of votes. Therefore, we hold that the Board’s action was a violation of neither the equal protection clause nor State law. Rather, the Board merely properly exercised its discretion.

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

Affirmed.

STOUDER and HAASE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT JUSTICE McLAREN,

license: Public Domain

text:
    LILY LAKE ROAD DEFENDERS et al., Plaintiffs-Appellants, v. THE COUNTY OF McHENRY et al., Defendants-Appellees.
    Second District
    No. 2—91—0800
    Opinion filed July 16, 1992.

      McLAREN, J., dissenting.
    John D. Gorby, of Chicago, for appellants.
    Thomas E Baker, State’s Attorney, of Woodstock, David R. Akemann, of Elgin, and Gordon E. Graham, of Reilly, Prather, Graham & McAndrews, of McHenry (Mary Kay Walter, Assistant State’s Attorney, of counsel), for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiffs, Lily Lake Road Defenders, Friends of Moraine Hills State Park, an association of citizens and taxpayers of McHenry County interested in the environment of the county and the area surrounding Moraine Hills State Park, and various individuals residing and owning property on Lily Lake Road, brought a complaint for declaratory judgment (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 701) in the circuit court of McHenry County against defendants, the County of McHenry (County) and various individuals associated with the County; the FRAMS Gravel Pit (FRAMS) and its unknown partners, owners, and operators; and Anthony Varese, administrator of the estate of Lawrence Youngberg (Estate), which owned the land upon which the gravel pit had engaged in surface mining operations. Plaintiffs sought to have the circuit court declare section 508 of the 1979 McHenry County zoning ordinance valid and enforceable. (McHenry County Zoning Ordinance §508 (1979).) Section 508 regulated surface mining and mining reclamation. Additionally, plaintiffs sought a writ of mandamus directing the County to enforce the ordinance provision against FRAMS and the Estate and to require reclamation as provided in the zoning ordinance. The court dismissed Lily Lake Road Defenders and Friends of Moraine Hills State Park as plaintiffs, finding that they had failed to state a cause of action. The individually named plaintiffs, as property owners on Lily Lake Road, were found to have stated a cause of action.

Both the McHenry County defendants and plaintiffs moved for summary judgment. Subsequent to a hearing conducted on the motions, the trial court found that section 508 of the ordinance was invalid from its inception. Because the County lacked the authority to perform the acts requested by plaintiffs, the trial court granted the McHenry County defendants’ motion for summary judgment and denied plaintiffs’ motion.

Plaintiffs appeal from the trial court’s judgment and order, raising three contentions of error: (1) that the trial court erred in holding that section 508, the provision of the 1979 McHenry County zoning ordinance pertaining to extraction of earth materials and site reclamation, was void when enacted; (2) that the trial court erred in striking plaintiffs’ request to admit facts showing that the County had acted inconsistently in the past with its present position that section 508 is invalid; and (3) that the trial court erred in ordering the release of the lis pendens prior to the entry of a final order against plaintiffs.

Defendant FRAMS Gravel Pit had engaged in surface mining operations on a parcel of land located at 2018 Lily Lake Road in McHenry County and owned by Lawrence Youngberg, deceased, since prior to 1979 when the 1979 McHenry County zoning ordinance was enacted. In 1988, FRAMS ceased all operations and abandoned the gravel pit. In their complaint, plaintiffs alleged that, since 1979, FRAMS had enlarged and increased its surface mining operations by at least 25 acres without submitting a reclamation plan or a bond in the amount of not less than $2,500 for each acre affected by the operations and without obtaining a conditional use permit as required by section 508 of the zoning ordinance. Section 508 required all surface mining operations to obtain a conditional use permit by submitting a reclamation plan to the County for approval and to post a reclamation bond to guarantee actual reclamation according to the approved plan. The bond was to be held by the County until the affected lands had been reclaimed in accordance with the reclamation plan.

On April 26, 1989, plaintiffs, as adjoining property owners of the affected property and as Lily Lake Road Defenders and Friends of Moraine Hills State Park, demanded that the County enforce the mining reclamation provision of section 508 of the county zoning ordinance against FRAMS or the estate of Lawrence Youngberg. On May 10, 1989, the County refused this demand on the ground that the reclamation requirements of section 508 did not apply to FRAMS and the affected property since the mining operations were in existence prior to the enactment of section 508 of the 1979 county zoning ordinance.

On May 15, 1989, plaintiffs filed their complaint seeking a declaratory judgment, declaring section 508 to be valid and enforceable, and a writ of mandamus against the County, directing it to enforce section 508 against FRAMS and the estate. Plaintiffs also sued in rem the parcel of land upon which FRAMS Gravel Pit is located, asking the court to encumber the parcel with the requirement that any purchaser or transferee of the parcel take such parcel subject to a duty to reclaim it as required by the county zoning ordinance. Subsequently, defendant Estate moved to release a notice of lis pendens which had been filed by plaintiffs against the parcel, and the trial court allowed the motion.

Defendant County defended against plaintiffs’ action by challenging the standing of plaintiffs, by claiming laches, a deprivation of a prior use, the inappropriateness of mandamus, the invalidity of section 508 due to preemption, supersedure, or a lack of State authority to enact a mining reclamation ordinance in the first place, and by claiming that the 1981 amendment to the Surface-Mined Land Conservation and Reclamation Act (Reclamation Act) (Ill. Rev. Stat. 1987, ch. 961/2, par. 4501 et seq.) did not revive the reclamation provisions of the 1979 zoning ordinance. The County raised these issues in a motion to dismiss, which was denied as to all issues except the issue of mandamus. Later, in a motion for summary judgment, the County centered on the issue of preemption or supersedure of the portion of the 1979 zoning ordinance regulating gravel mining by the State’s Environmental Protection Act (EPA) (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1001 et seq.). Plaintiffs filed a cross-motion for summary judgment, asserting that the EPA neither repealed nor preempted the County’s authority to require reclamation of surface-mined areas. The court conducted a hearing on the motions.

In an order dated June 10, 1991, the trial court found that the County had no authority in 1979 to enact the provisions of section 508 of the zoning ordinance because the EPA and case law operated as a direct repeal of section 508. Consequently, section 508 was void when enacted. The court determined that although the State enacted in 1981 the amendment to the Reclamation Act, which authorized counties to regulate surface mining operations locally with the State, the 1981 statute did not revive section 508 because section 508 was void from the beginning and incapable of being revived or of springing into existence. Accordingly, the trial court held that for section 508 to be effective, the County should have reenacted the section after 1981 when the County then had the authority to do so. Because the County waited until 1989 to reenact section 508, when it amended its zoning ordinance, and because defendant FRAMS ceased operations in 1988, the reclamation provisions of the section were inapplicable to FRAMS.

The court granted the McHenry County defendants’ motion for summary judgment and denied plaintiffs’ motion. This appeal ensued.

Plaintiffs first contend that the trial court erred in holding that section 508, the provision of the 1979 McHenry County zoning ordinance pertaining to extraction of earth materials and site reclamation, was void when enacted. The lower court’s holding was based on this court’s ruling in County of McHenry v. Sternaman (1978), 63 Ill. App. 3d 679, wherein we found that the McHenry County zoning ordinance was superseded by the 1970 EPA and its rules and regulations. We believe this ruling applies to the instant case.

As the County points out, plaintiffs claim that this court is required to analyze the differences between home rule and non-home-rule units of government in order for the court to reach a determination upon the legal issue raised in plaintiffs’ first contention. We do not agree and believe that this is only one of many theories which plaintiffs have espoused to confuse the main issue here, i.e., whether the County had the authority to regulate earth-extraction operations and the reclamation of lands affected thereby as part of its zoning powers when it purported to do so in its 1979 ordinance.

In Sternaman, the defendant operated a sand and gravel pit in McHenry County. The County charged defendant with violating the county zoning ordinance by failing to obtain a special use permit for the washing and screening of sand and gravel. The issue before this court was whether “the EPA was intended to supersede the McHenry County zoning ordinance enacted pursuant to the powers conferred by the county zoning act [Ill. Rev. Stat. 1975, ch. 34, par. 3151 et seq. (now Ill. Rev. Stat. 1989, ch. 34, par. 5 — 12001 et seq.)] insofar as such ordinance relates to gravel pit operations.” (Sternaman, 63 Ill. App. 3d at 680.) In discussing the relationship between the county zoning act and the EPA, this court stated:

“The EPA contains no express repeal of the county zoning act. Neither does it repeal the county zoning act by implication by covering the entire subject matter of the zoning act with the intent of being a substitute for it. If there is to be a repeal by application, it must be due to the irreconcilability of the provisions of the subsequent statute when compared to those of the earlier statute.” (Sternaman, 63 Ill. App. 3d at 681.)

Whether a subsequent statute’s provisions are so repugnant to those of the earlier statute that the two statutes are irreconcilable is determined by examining the intent of the legislature and deciding if the legislature intended by the subsequent statute to repeal the former. (County of Du Page v. Harris (1967), 89 Ill. App. 2d 101, 106.) Relying on the legislative history of the EPA and the language of our supreme court in a number of cases (Carlson v. Village of Worth (1975), 62 Ill. 2d 406; American Smelting & Refining Co. v. County of Knox (1974), 60 Ill. 2d 133; O’Connor v. City of Rockford (1972), 52 Ill. 2d 360), this court found that the EPA superseded the McHenry County zoning ordinance.

In O’Connor, the supreme court analyzed the legislative history of the EPA and determined that requiring Rockford to obtain a conditional use permit from Winnebago County to establish a sanitary landfill in an unincorporated area contravened the legislature’s intent that such operations be conducted only upon issuance of a permit from the Environmental Protection Agency (Agency). The court reasoned that, by enacting the EPA, the legislature expressly declared the need for a unified statewide program for such matters and that the issuance of the Agency permit was all that was required to operate the landfill.

In Carlson, the supreme court dealt with the Village of Worth’s (Village’s) contention that concurrent jurisdiction could be exercised by both the Village and the Agency, thereby allowing the Village as well as the Agency to require the issuance of a permit for the operation of a sanitary landfill. Issuance of the Village’s permit required compliance with its environmental ordinance, which, in turn, required compliance with the Village zoning ordinance. In determining the concurrent jurisdiction issue, the court relied on its analysis of the legislative history of the EPA made in O’Connor and then pointed out that the provisions in the original draft of the EPA, which provided for concurrent jurisdiction with the local zoning authorities, were deliberately deleted from the act prior to its enactment. Based on these factors, the court concluded that the legislature intended the EPA to eliminate any powers reserved to local political entities which could interfere with or frustrate the objective of establishing a unified statewide system of environmental protection.

In American Smelting, the supreme court dealt with a similar concurrent jurisdiction problem and found that the reclamation of strip-mined land is exclusively governed by the Surface-Mined Land Conservation and Reclamation Act (Ill. Rev. Stat. 1971, ch. 93, par. 201 et seq. (now Ill. Rev. Stat. 1987, ch. 96V2, par. 4501 et seq.)) and that counties could not impose additional requirements pursuant to their zoning powers. In that case, Knox County sought to apply its zoning ordinance to a surface-mining operation for which a permit had been issued by the Department of Mines and Minerals pursuant to the Reclamation Act. Comparing the Reclamation Act to the EPA, the supreme court applied the reasoning of the O’Connor case and concluded that the Reclamation Act presented a detailed and concise effort to supervise reclamation of strip-mined areas, that no demonstrable basis existed for concurrent State and county regulation of reclamation standards, and that, therefore, the county zoning act (Ill. Rev. Stat. 1971, ch. 34, par. 3151 et seq. (now Ill. Rev. Stat. 1989, ch. 34, par. 5 — 12001 et seq.)) was not applicable to the determination of strip-mining reclamation standards.

The legislative history of the EPA and the language of O’Con-nor, Carlson and American Smelting illustrate that the legislature’s purpose in enacting the EPA was to establish a unified statewide program for regulating environmental matters. To assure this objective, the legislature deliberately eliminated from the EPA a provision which reserved to local political entities the powers to enact and enforce concurrent legislation pertaining to environmental damage. (Carlson, 62 Ill. 2d at 417-18.) Moreover, subsequent efforts to restore these powers were defeated. 62 Ill. 2d at 418.

Based on the legislature’s intent and on the language of O’Con-nor, Carlson, American Smelting, and Sternaman, we conclude that the EPA superseded the McHenry County zoning ordinance of 1979. The County’s authority to regulate earth extraction pursuant to the county zoning act was repealed by implication when the EPA was enacted in 1970 to establish statewide control over environmental issues. Consequently, the County lacked any authority in 1979 to adopt section 508 of its zoning ordinance pertaining to regulation of mining activities and reclamation of land affected thereby. Section 508, as the trial court determined, was void at the time of its enactment.

Plaintiffs argue, however, that, even if the county zoning act and the EPA are irreconcilable, the reclamation provisions of the County’s 1979 zoning ordinance are still valid because reclamation of a gravel site is not part of the mining operation and, therefore, not regulated by the EPA, but, instead, left to the control of the County. We do not agree.

In Union National Bank & Trust Co. v. Board of Supervisors (1978), 65 Ill. App. 3d 1004, this court determined that, by enacting the Reclamation Act (Ill. Rev. Stat. 1971, ch. 93, par. 201 et seq. (now Ill. Rev. Stat. 1987, ch. 961/2, par. 4501 et seq.)), which is a comprehensive regulatory scheme pertaining to surface mining and reclamation, the legislature implied that counties should have no power to regulate this activity. (Union National Bank, 65 Ill. App. 3d at 1008.) In American Smelting, the supreme court held that the Reclamation Act established detailed supervision of reclamation of strip-mined areas and that implied in the passage of this comprehensive regulatory scheme was an interdict on local regulations of strip mining and the reclamation of land that had been so mined. Thus, counties had no authority to regulate reclamation procedures. American Smelting, 60 Ill. 2d at 139.

Additionally, the supreme court pointed out in American Smelting that section 206(g) of the Reclamation Act (Ill. Rev. Stat. 1971, ch. 93, par. 206(g) (now Ill. Rev. Stat. 1987, ch. 961/2, par. 4507(g))) requires a surface-mine operator to comply with the EPA and its rules and regulations during mining and reclamation operations as well as after reclamation has been completed. (American Smelting, 60 Ill. 2d at 140.) We read this provision, as we have done previously in Union National Bank, “as a legislative statement that any person who seeks to operate a strip-mine [or surface mine, as here] is not exempted from any applicable provision of the Environmental Protection Act by reason of the operation of the Reclamation Act.” (Union National Bank, 65 Ill. App. 3d at 1009-10.) We conclude that, even if reclamation is not regulated by the EPA, it is regulated by the Reclamation Act, which effectively repealed that portion of section 508 of the county zoning ordinance pertaining to reclamation of land affected by surface mining. The County has no zoning powers to regulate reclamation of land that has been surface mined.

Plaintiffs maintain, however, that, even if reclamation is regulated by State authority rather than local authority, defendant FRAMS, being a small facility mining less than 10 acres of land per year, is unregulated by the EPA. (See 35 Ill. Adm. Code §404.103(a)(3) (1991).) As such, plaintiffs argue, there could be no repugnancy or incompatibility between the EPA and the reclamation provisions of section 508 of the McHenry County zoning ordinance of 1979 and, therefore, pursuant to the county zoning act, the County possessed the zoning power to regulate small mine reclamation as in the instant case. While this may be a viable theory, plaintiffs have provided us with no record reference to show that FRAMS constituted a small mining facility. Without proof of that fact, we cannot address the question whether the County had the power to regulate the reclamation of the mine due to the fact that the mining operation affected less than 10 acres of land per year.

Plaintiffs also contend that the 1981 amendment to the EPA and to the Reclamation Act, granting authority to counties to regulate earth extraction, revitalized the County’s 1979 zoning ordinance. Subsequent to this court’s ruling in Sternaman, section 2 of the Reclamation Act (Ill. Rev. Stat. 1971, ch. 93, par. 202 (now Ill. Rev. Stat. 1987, ch. 961/2, par. 4502)) and section 39 of the EPA (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1039) were amended to provide in relevant part that the issuance under the Acts of a permit to engage in the surface mining of any resources other than fossil fuels would not relieve a permittee from its duty to comply with other applicable local law regulating the commencement, location or operation of surface mining facilities. (See Pub. Act 82 — 114, §2, eff. August 8, 1981.) Plaintiffs maintain that passage of this 1981 amendment revived the County’s 1979 zoning ordinance. This would be true if the ordinance had not been void since its enactment. But, as we have already determined above, the County lacked authority to regulate mining operations and reclamation of lands affected thereby when it adopted the 1979 zoning ordinance, and, therefore, section 508 purporting to regulate these matters was void from the very beginning. Additionally, our supreme court in County of Kendall v. Avery Gravel Co. (1984), 101 Ill. 2d 428, declared that the 1981 amendment to the Reclamation Act and to the EPA was substantive and, therefore, could only be applied prospectively. (101 Ill. 2d at 435.) Thus, passage of the 1981 amendment could not give new life to the County’s 1979 zoning ordinance.

Although the 1981 amendment gave the County the authority it lacked under the 1970 EPA to regulate mining and reclamation, the County did not reenact section 508 of the zoning ordinance until 1989. By that time, it was too late for the County to enforce the reclamation provisions of section 508 against defendant FRAMS because, in 1988, FRAMS had ceased all mining operations and abandoned the gravel pit site. We conclude that the County lacked the authority to enforce the reclamation provisions of section 508 against FRAMS or the estate of Lawrence Youngberg.

Next, plaintiffs contend that the trial court erred in striking plaintiffs’ request to admit facts showing that the County had acted inconsistently in the past with its present position that section 508 is invalid. Specifically, in its reply memorandum in support of its cross-motion for summary judgment, plaintiffs listed four occasions between 1979 and 1988 when the County had apparently received a request for a conditional use permit and had either issued or denied the permit under the authority of section 508. Without citation to any authority, plaintiffs maintain that it was reversible error for the court to refuse to admit these facts.

A contention supported by some argument but no authority whatsoever does not satisfy the requirements of Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)) pertaining to the contents of an appellant’s brief. Any issue which has not been adequately presented to this court for review may be deemed waived. (In re Application of Anderson (1987), 162 Ill. App. 3d 815, 819.) Consequently, we consider the instant issue waived.

Nevertheless, we fail to comprehend how plaintiffs can claim that the court’s refusal amounted to reversible error when, in both the memorandum in which plaintiffs first raise this issue and at the hearing on the parties’ summary judgment motions, plaintiffs admitted to the court that “these facts” were “not essential” to the court’s “legal judgment” on the motions for summary judgment. Given this was plaintiffs’ position in the lower court, we do not believe plaintiffs can now claim in this court that these facts were relevant and that the court’s refusal to admit them constituted reversible error. Such inconsistency is not permissible. See Monroe County Water Cooperative v. City of Waterloo (1982), 107 Ill. App. 3d 477, 480.

Also, contrary to plaintiffs’ assertion in their brief that the trial court allowed the County’s motion to strike without explanation, the court did explain its decision for granting the motion to strike. The court stated that allowing information regarding what the County “may or may not have done under Section 508 in other cases” would require the court to compare the application of section 508 in the instant case with its application in each of the other cases and that the court did not intend to try these cases or retry them as subsidiary matters of the instant case. We believe this was a correct decision on the part of the trial court, especially when all the court had before it was the name, apparently, of the company requesting a conditional use permit, the permanent index number of the property involved, and, in two instances, the date when the permit was issued or renewed. In the other two instances, it is not even apparent from the information provided to the trial court whether a permit was issued or renewed. However, even if the court’s decision to strike plaintiffs’ request to admit facts constituted error, it did not rise to the level of reversible error.

In their third contention plaintiffs argue that the trial court erred in releasing the notice of Us pendens which plaintiffs filed in the county recorder’s office for the purpose of notifying the public that litigation was pending in rem against the parcel of land upon which FRAMS Gravel Pit had operated. According to plaintiffs, the court’s act was error because any person considering acquiring an interest in the parcel was entitled to notice of the pending suit demanding reclamation of the land and of the possibility that he could be burdened with the cost of reclamation if plaintiffs prevailed in their suit. However, our determination that the trial court acted properly in finding that the County lacked the authority to enforce the reclamation provisions of section 508 against FRAMS or the Estate make it unnecessary to address this final contention.

Summary judgment is a drastic means of disposing of litigation and should be allowed only when the right of the moving party to summary judgment is clear and free from doubt. (Mitchell v. Jewel Food Stores (1990), 142 Ill. 2d 152, 165.) Since section 508 of McHenry County’s 1979 zoning ordinance was void from its inception, it is clear that the McHenry County defendants were entitled to summary judgment. We conclude that the trial court did not err in granting summary judgment to these defendants.

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

Affirmed.

WOODWARD, J., concurs.

JUSTICE McLAREN,

dissenting:

I respectfully dissent. The majority believes County of McHenry v. Sternaman (1978), 63 Ill. App. 3d 679, applies to the instant case. I partially agree and come to a different conclusion. In the Sternaman case, a portion of the county’s zoning ordinance regarding the regulation of “the mining operation, including washing and screening of sand and gravel” was found invalid pursuant to the implied repeal by the EPA. (Sternaman, 63 Ill. App. 3d at 680.) In this case, the factual issue is not with the operation of the mine but with the reclamation of the mine after the uncontroverted cessation of mining operations. The Sternaman court states:

“The EPA contains no express repeal of the county zoning act. Neither does it repeal the county zoning act by implication by covering the entire subject matter of the zoning act with the intent of being a substitute for it. If there is to be a repeal by implication, it must be due to the irreconcilability of the provisions of the subsequent statute when compared to those of the earlier statute.” (Emphasis added.) (Sternaman, 63 Ill. App. 3d at 681.)

I do not believe that the Sternaman case held the EPA superseded that portion of the McHenry County zoning ordinance regarding the rehabilitation of the property after the cessation of mining operations. Support for this position comes from the fact that the EPA is silent in this regard. Furthermore, the passage of the Reclamation Act is additional evidence that the legislature did not consider the EPA as encompassing mine reclamation. (Ill. Rev. Stat. 1987, ch. 961/2, par. 4501 et seq.) I conclude that the EPA is not irreconcilable with the applicable provisions of the County zoning ordinance based upon the facts in this particular case because the zoning ordinance is concerned with what is to be done after the cessation of operations regarding the reclamation of the land rather than the regulation of ongoing mining operations.

The majority also indicates that the Reclamation Act effectively repealed that portion of section 508 of the County zoning ordinance pertaining to the reclamation of land affected by surface mining. I disagree.

I agree with plaintiffs that, due to the small size of the mine, the Reclamation Act does not apply to this particular mine pursuant to section 4 entitled “Necessity of Permit” which states:

“It shall be unlawful for any operator to engage in surface mining in an area where the overburden shall exceed 10 feet in depth or where the operation will affect more than 10 acres during the permit year without first obtaining from the Department a permit to do so, in such form as is hereinafter provided.” Ill. Rev. Stat. 1987, ch. 961/2, par. 4504.

Additionally, the Reclamation Act could be interpreted in two ways. First, its statement of policy is silent as to what is done after the commencement, location, and operation of surface mining facilities. (Ill. Rev. Stat. 1987, ch. 961/2, par. 4502.) Even if it were concerned with reclamation after commencement, location, and operation, the Act only exercises jurisdiction of mines greater than 10 acres or where the overburden shall exceed 10 feet in depth during the permit year. The mine in this case is excluded from the Reclamation Act under these criteria. Consistent with my interpretation, the statement of policy declares that the permit holder must comply with State and local law. Ill. Rev. Stat. 1987, ch. 961/2, par. 4502.

The County claims that the reclamation of land is part of the mining process. Neither the EPA nor the Reclamation Act provides for any regulation of the reclamation of this property after the cessation of mining operations. It is axiomatic that, if mining operations have ceased and reclamation has not been instituted, then reclamation is not part of the operation of the mining process. Reclamation of this mine has not been regulated or enforced under the EPA or the Reclamation Act and may never be instituted unless the zoning ordinance is enforced.

In conclusion, there is nothing to suggest that the reclamation of this mine is irreconcilable with the provisions of the EPA or the Reclamation Act. I would, therefore, reverse and remand the cause for further proceedings consistent with my belief that the ordinance was and is enforceable.


text:
    WEATHER-SEAL-NU-SASH, INC., Plaintiff and Counterdefendant-Appellant, v. JOHN D. MARX et al., Defendants and Counterplaintiffs-Appellees.
    Third District
    No. 3—91—0905
    Opinion filed July 9, 1992.

      James T. Burns, of Kankakee, for appellant.
    Roger B. Gomien, of Gomien, Root & Rigazio, of Morris, for appellees.
   JUSTICE GORMAN

delivered the opinion of the court;

The plaintiff and counterdefendant, Weather-Seal-Nu-Sash, Inc. (the plaintiff), filed suit against the defendants and counterplaintiffs, John D. and Debra S. Marx (the defendants), for breach of contract. The defendants denied liability and filed a counterclaim for attorney fees and other damages. The defendants subsequently filed a motion for judgment on the pleadings and the trial court dismissed the plaintiff's complaint. Months later, the trial court granted judgment in favor of the defendants based on their counterclaim for attorney fees.

The record reveals that on January 30, 1988, the plaintiff and the defendants entered into a written contract for the purchase and installation of custom-built windows. The record further reveals that the contract was an installment sales contract and that it was not in compliance with the Retail Installment Sales Act (Ill. Rev. Stat. 1991, ch. 1211/2, par. 501 et seq.).

On August 16, 1988, the plaintiff brought suit against the defendants for breach of contract. The plaintiff sought damages of $6,918 plus costs of the suit. The defendants filed an answer and counterclaim denying liability and alleging that the plaintiff violated the Retail Installment Sales Act and the Consumer Fraud and Deceptive Business Practices Act (the Consumer Fraud Act) (Ill. Rev. Stat. 1991, ch. 1211/2, par. 261 et seq.). The defendants subsequently filed a motion for judgment on the pleadings. On February 23, 1989, the trial court found that the contract in question violated the Retail Installment Sales Act and was therefore completely unenforceable. Accordingly, it dismissed the plaintiff’s complaint for failure to state a cause of action.

Thereafter, on July 19, 1991, the trial court concluded that the plaintiff’s violation of the Retail Installment Sales Act also constituted a violation of the Consumer Fraud Act. Accordingly, under the Consumer Fraud Act, the trial court granted the defendants their counterclaim for $2,414 in attorney fees. The plaintiff appeals both the dismissal of its breach of contract claim and the award of attorney fees on the counterclaim.

On appeal, the plaintiff first argues that the contract was not entirely unenforceable merely because it failed to conform to the provisions of the Retail Installment Sales Act. We agree.

In resolving this issue, it is helpful to first examine the relevant legislative history. Prior to 1968, the Retail Installment Sales Act of 1957 (the 1957 Act) provided certain consequences for violations of that Act. Specifically, section 17 provided:

“§17. Failure to comply — Remedy of buyer. In case of failure of the seller or holder to comply with the provisions of this Act, the buyer has the right to recover from the seller or holder, as the case may be, an amount equal to the finance charge or 10% of the cash price if no finance charge is specified *** plus reasonable attorneys’ fees.” Ill. Rev. Stat. 1965, ch. 1211/2, par. 240.

Additionally, section 20 of the 1957 Act provided that “[a]ny person violating any of the provisions of Sections 2 to 17, inclusive, *** is barred from recovery of any finance charge, delinquency or collection charge or refinancing charge.” Ill. Rev. Stat. 1965, ch. 1211/2, par. 243.

The Illinois Supreme Court made it clear that, under the 1957 Act, contracts which did not comply with the requirements of the Act were not totally unenforceable. (Anco Investment Corp. v. Spencer (1973), 53 Ill. 2d 396, 292 N.E.2d 726.) The supreme court concluded that because sections 17 and 20 expressly set forth finance charge-related penalties for violations of the Act, the contract would not be void. Instead, the seller or holder was subject to the penalties established under sections 17 and 20 of the 1957 Act. Anco Investment Corp. v. Spencer (1973), 53 Ill. 2d 396, 292 N.E.2d 726.

In 1967, the General Assembly enacted a new Retail Installment Sales Act (the 1967 Act). The 1967 Act does not contain a provision similar to section 17 of the 1957 Act, which authorized a private cause of action by a buyer against one who violated the provisions of the Act. (Hoover v. May Department Stores Co. (1979), 77 Ill. 2d 93, 395 N.E.2d 541.) Rather, it provides for enforcement of the Act by the Attorney General or State’s Attorney. Ill. Rev. Stat. 1991, ch. 1211/2, par. 530; see Hoover v. May Department Stores Co. (1979), 77 Ill. 2d 93, 395 N.E.2d 541.

The defendants in the instant case contend that the Illinois Supreme Court’s decision in Anco need no longer be followed because it was decided under the 1957 Act rather than the 1967 Act. The defendants argue that because the 1967 Act no longer authorizes a private cause of action, the spirit of the Act requires that the contract be declared void. We disagree.

We note that the Anco decision was not based entirely on the fact that a private cause of action existed under section 17 of the 1957 Act. Rather, the supreme court held that it would be superfluous for the Act to set forth finance charge-related penalties in both sections 17 and 20 if contracts which violated the Act were entirely unenforceable. See Anco Investment Corp. v. Spencer (1973), 53 Ill. 2d 396, 292 N.E.2d 726.

We further note that despite the changes the Act has undergone, section 31 of the Act (Ill. Rev. Stat. 1991, ch. 1211/2, par. 531) contains a penalty provision substantially the same as that contained in section 20 of the 1957 Act. Accordingly, because the penalty provisions now in force still provide that a person in violation of the Act may not recover finance charges, we conclude that the holding in Anco is still good law. Therefore, we find that the trial court erred in holding that the contract in the instant case was entirely unenforceable. Rather, the trial court should have found that, due to its violation of the Act, the plaintiff is unable under section 31 to collect the finance charges.

The plaintiff’s second argument on appeal is that the trial court erred in concluding that the plaintiff’s violation of the Retail Installment Sales Act (Ill. Rev. Stat. 1991, ch. 1211/2, par. 501 et seq.) also constituted a violation of the Consumer Fraud Act (Ill. Rev. Stat. 1991, ch. 1211/2, par. 261 et seq.). Therefore, the plaintiff contends that the trial court erred in awarding attorney fees under the Consumer Fraud Act. We agree.

A single violation of the Retail Installment Sales Act is not per se a violation of the Consumer Fraud Act. If it were, there would be little reason for the limitations imposed by sections 2E and 2F of the Consumer Fraud Act. See Lanier v. Associates Finance, Inc. (1986), 114 Ill. 2d 1, 20, 499 N.E.2d 440 (Simon, J., specially concurring).

Section 2E of the Consumer Fraud Act (Ill. Rev. Stat. 1991, ch. 1211/2, par. 262E) provides that a Retail Installment Sales Act violation also constitutes a Consumer Fraud Act violation when three or more Retail Installment Sales Act violations have been committed by the violator in the same calendar year. No such showing was made in this case. Accordingly, we are unable to say that the Retail Installment Sales Act violation constituted a Consumer Fraud Act violation pursuant to section 2E.

Under section 2F of the Consumer Fraud Act (Ill. Rev. Stat. 1991, ch. 1211/2, par. 262F), a single Retail Installment Sales Act violation may constitute a Consumer Fraud Act violation if the Retail Installment Sales Act violation was “willful” and “material.” (See Fidelity Financial Services, Inc. v. Hicks (1991), 214 Ill. App. 3d 398, 574 N.E.2d 15.) Here, there was no showing that the violation was willful rather than merely unknowing and inadvertent. Therefore, we are unable to say that the Retail Installment Sales Act violation constituted a Consumer Fraud Act violation pursuant to section 2E.

For the reasons set forth above, we conclude that the trial court erred in holding that the contract was entirely unenforceable because it violated the Retail Installment Sales Act. Additionally, we hold that the fact that the agreement violated the Retail Installment Sales Act does not mean that it violated the Consumer Fraud Act. Consequently, the court erred in awarding attorney fees under the Consumer Fraud Act. Accordingly, this cause is reversed and remanded for further proceedings consistent with this decision. The judgment of the circuit court of Grundy County is reversed and the cause remanded.

Reversed and remanded.

BARRY, P.J., and SLATER, J., concur.


author: JUSTICE HENRY LEWIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS HARRIS, Defendant-Appellant.
    Fifth District
    No. 5—90—0480
    Opinion filed July 30, 1992.

      Daniel M. Kirwan and Janet Gandy Fowler, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Charles Grace, State’s Attorney, of Murphysboro (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HENRY LEWIS

delivered the opinion of the court:

A jury found the defendant, Dennis Harris, guilty of first-degree murder, armed robbery, and armed violence. Post trial the trial court vacated the judgments of guilt with respect to those counts pertaining to armed robbery and armed violence. After determining that the death penalty should not be imposed, the trial court sentenced the defendant to a term of imprisonment of 75 years. The defendant appeals, presenting two issues for our review: whether his right to an impartial jury was violated and whether the trial court abused its discretion in imposing sentence.

Concerning the first issue he raises for review, defendant contends that his right to an impartial jury was violated because the trial couit improperly refused to excuse potential juror George O’Neill for cause, thereby forcing defendant ultimately to exhaust his peremptory challenges and, thus, to accept the twelfth juror to be seated, juror George Holt, although Mr. Holt was, in the words of the defendant, “acquainted with law enforcement officials.”

The right to a jury trial guarantees to one accused of a crime a fair trial by a panel of impartial jurors, and the failure to accord an accused a fair hearing violates even the minimal standards of due process. (People v. Cole (1973), 54 Ill. 2d 401, 298 N.E.2d 705.) The right to a trial by an impartial tribunal is so basic that a violation of the right requires a reversal. (Cole, 54 Ill. 2d 401, 298 N.E.2d 705.) This issue cannot be disposed of by the harmless-error rule. (Cole, 54 Ill. 2d 401, 298 N.E.2d 705.) Peremptory challenges are not of constitutional dimension but are, rather, creatures of State law, and a State may determine their number, their purpose, and the manner of their exercise. (Ross v. Oklahoma (1988), 487 U.S. 81, 101 L. Ed. 2d 80, 108 S. Ct. 2273; People v. Gleash (1991), 209 Ill. App. 3d 598, 568 N.E.2d 348.) The loss of a peremptory challenge does not constitute a violation of the constitutional right to an impartial jury. (Ross, 487 U.S. 81, 101 L. Ed. 2d 80, 108 S. Ct. 2273.) Peremptory challenges are a means to achieve the end of an impartial jury. (Ross, 487 U.S. 81, 101 L. Ed. 2d 80, 108 S. Ct. 2273.) As long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the sixth amendment was violated. Ross, 487 U.S. 81, 101 L. Ed. 2d 80, 108 S. Ct. 2273.

The purpose of examination upon voir dire is to filter out prospective jurors who are unable or unwilling to be impartial. (People v. Johnson (1991), 215 Ill. App. 3d 713, 575 N.E.2d 1247.) A person is not competent to sit as a juror if his state of mind is such that a party will not receive a fair and impartial trial with him as a member of the jury. (Cole, 54 Ill. 2d 401, 298 N.E.2d 705.) In voir dire the trial judge is afforded broad discretion (People v. Johnson (1987), 162 Ill. App. 3d 952, 516 N.E.2d 343), and reversal of a conviction will not occur unless there has been an abuse of discretion that denies a defendant an impartial trial (Gleash, 209 Ill. App. 3d 598, 568 N.E.2d 348). Moreover, the trial court’s determination of whether prospective jurors would be fair and impartial should not be set aside unless that determination was contrary to the manifest weight of the evidence. Gleash, 209 Ill. App. 3d 598, 568 N.E.2d 348.

In the instant case, as we have indicated, the trial court denied the defendant’s motion to excuse potential juror George O’Neill for cause, whereupon the defendant removed him by the use of a peremptory challenge. Later, after the defendant had used his last peremptory challenge and had moved unsuccessfully for additional peremptory challenges, George Holt was examined as a potential juror. When the court asked Mr. Holt, “Do you have any close friends or relatives employed by a police agency?” Mr. Holt answered, “Friends.” Asked further by the court, “Would that cause you to put greater or less weight on the testimony of a police officer, if one testifies?” Mr. Holt responded, “No.” Asked by the court, “Will you treat the testimony of a police officer by the same standards as you would any other witness in this case?” Mr. Holt answered, “Yes.” Later the defense inquired of Mr. Holt, “[Y]ou have indicated that you had some friends who were police officers. And who might they be?” Mr. Holt responded, “Just friends of mine in Carbondale, Shiplett, and Reno, couple of the guys over there. That’s all.” Asked further by the defense, “And have you ever talked about this case, to your recollection, or Mr. Harris in any way with either Jerry Reno or Chuck Shiplett, or any of the others?” Mr. Holt answered, “No, no.”

The defense subsequently asked the court to remove Mr. Holt for cause, stating:

“Your Honor, I think that Mr. Holt’s familiarity with members of the police force, including Police Lieutenant Reno, is a problem which may prejudice Mr. Holt against my client, and I would ask that the Court remove Mr. Holt for cause or that in the alternative I be granted an additional peremptory challenge based on the Court’s earlier rulings to remove Mr. Holt.”

The court ruled that “[cjause definitely has not been established, and the Court’s [sic] previously ruled on your request for additional peremptory challenges.” The court earlier had also denied defendant’s motion to reconsider its refusal to remove George O’Neill for cause. We note parenthetically that neither Officer Shiplett nor Officer Reno testified at the defendant’s trial.

In his brief defendant asserts that he “was forced to accept George Holt, who was well-acquainted with several police officers, including an officer who was a State’s witness, as a juror. Thus, this Court must reverse Mr. Harris’ conviction and remand this cause for a new trial.” Defendant does not name this witness. In his reply brief he states that Mr. Holt was acquainted with police officers who were “potential State’s witnesses.” Defendant urges that George Holt “would likely be biased in favor of law enforcement officials,” maintaining that the trial court’s refusal to excuse George O’Neill for cause prejudiced him, thereby depriving him of a fair trial.

The defendant discusses in detail George O’Neill’s responses during voir dire in an effort to show that the trial court erred in refusing to excuse Mr. O’Neill for cause. However, because reversible error “results not from the defendant’s exhaustion of his peremptory challenges, but rather from the end result of an unfair jury” (Gleash, 209 Ill. App. 3d at 607, 568 N.E.2d at 354; see Ross, 487 U.S. 81, 101 L. Ed. 2d 80, 108 S. Ct. 2273), we look to the composition of the jury that was actually impaneled and that returned the verdict of guilt. The defendant voices no objection concerning the competence of any juror seated other than George Holt. We have examined all of the questions posed to Mr. Holt and the answers he gave during voir dire. In light of the trial court’s opportunity to evaluate Mr. Holt’s responses and to assess his candor (see Johnson, 162 Ill. App. 3d 952, 516 N.E.2d 343), as well as the nature of his responses as revealed by the record, we conclude that the trial court’s determination that George Holt would be fair and impartial was not contrary to the manifest weight of the evidence. The trial court did not abuse its discretion in refusing to excuse George Holt for cause, and, contrary to defendant’s assertions, it cannot be said that he was denied the right to trial by an impartial tribunal.

With respect to the other issue the defendant raises for review, he contends that the trial court abused its discretion in sentencing him to 75 years’ imprisonment because he had not intended to kill the victim, because he has significant rehabilitative potential, and because the trial court considered an improper aggravating factor, namely, deterrence of others. He asks us to reduce his sentence to 35 years’ imprisonment or to vacate the sentence and to remand the cause to the trial court for resentencing.

The defendant killed the victim, Jason Jackson, in the course of an armed robbery of four employees of Jeremiah’s Restaurant in Carbondale as they walked to a nearby bank to deposit the restaurant’s receipts at about 2:30 a.m. on October 14, 1989. When the defendant fled on foot immediately after taking the deposit bags from the employees, the victim ran after him, mistakenly believing the defendant’s weapon was a cap gun. When the defendant fell while running from the scene, the victim overtook him. The defendant shot him at close range three times in rapid succession, one bullet penetrating his heart. The 21-year-old victim died almost immediately.

In imposing sentence in this case, the trial court concluded that there were no statutory factors present in mitigation and that there were two factors present in aggravation: the defendant has a history of prior delinquency or criminal activity and the sentence is necessary to deter others from committing the same crime. (Ill. Rev. Stat. 1991, ch. 38, pars. 1005 — 5—3.1, 1005 — 5—3.2.) In pronouncing. sentence, the court expressed the belief that the defendant is eligible for an extended-term sentence on the basis of “the aggravating factors in this case and the evidence in this case, the prior record of this Defendant, and the Court’s independent assessment of all of these elements.” Present as a factor in aggravation with respect to the imposition of an extended term, pursuant to section 5 — 8—2 (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—2), was the defendant’s prior conviction for the offense of residential burglary within 10 years of the instant conviction. As we have said, the trial court sentenced the defendant to confinement for a term of 75 years.

The imposing of punishment is one of the most important and sensitive of judicial responsibilities, and we, as a reviewing court, must give great weight to the judgment of the trial court. (People v. Generally (1988), 170 Ill. App. 3d 668, 525 N.E.2d 106.) Its decision concerning sentencing is entitled to great deference. (People v. Plantinga (1985), 132 Ill. App. 3d 512, 477 N.E.2d 1299.) The imposition of a sentence is a matter of judicial discretion, and absent an abuse of this discretion, the sentence of the trial court may not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Section 5 — 5—3.2(a)(7) of the Unified Code of Corrections (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—3.2(a)(7)) provides that deterrence of others is a factor to be accorded weight in favor of imposing a term of imprisonment. (People v. Simmons (1985), 138 Ill. App. 3d 492, 485 N.E.2d 1135.) In the exercise of its discretion a court may logically give reasonable consideration to the need for deterrence as a factor in the imposition of a sentence. (People v. Cameron (1989), 189 Ill. App. 3d 998, 546 N.E.2d 259.) Deterrence, punishment, the nature of the crime, and the protection of the public are to be considered equally with the rehabilitation of the offender in the fixing of sentences. Generally, 170 Ill. App. 3d 668, 525 N.E.2d 106.

In the instant case, Mary Ellen Hall, a rehabilitation specialist, testified on defendant’s behalf that, after visiting him twice, she had indicated in the conclusion of her report that she felt he has

“ ‘excellent potential to benefit from rehabilitation services. He needs one-on-one assistance in identifying a vocational objective. Test results indicate once a vocational objective has been identified, training should be feasible to pursue in his chosen area, especially areas of mechanical orientation. It should also be indicated vocational options take into consideration the apparent attention span deficit noted during testing as well as vocational interviews.’ ”

On cross-examination the witness was asked, “And in fact, you indicated to me, didn’t you, that in your opinion that Mr. Harris displayed excellent potential to benefit from rehabilitation services, and you indicated to me, didn’t you, that’s the standard answer every rehabilitation specialist gives because you’re optimistic people; isn’t that right?” The witness answered that she could not speak for every rehabilitation professional but that “that’s what I would give.” Also testifying on defendant’s behalf was Dr. James Bordieri, an associate professor at the Rehabilitation Institute at Southern Illinois University, who had seen the defendant on three occasions. On the basis of test results, the witness found the defendant to be in the low range of average intelligence. He stated that the defendant had developed skills as a short-order cook and in keeping records or doing inventory. The witness expressed the opinion that “these skills would allow him future rehabilitation potential.”

The defendant argues that the trial court ignored “an important mitigating factor,” that he had not intended to kill the victim. While there is nothing in the record to suggest that when the defendant planned the armed robbery he intended to kill anyone, there is evidence that he shot the victim in the belief that the victim could identify him because a cloth concealing defendant’s nose and mouth during the robbery had fallen.

Although the defendant was but 23 years of age at the time he committed this offense, he had by that time already engaged in extensive criminal conduct and was on mandatory supervised release, or parole, with respect to sentences for residential burglary, aggravated unlawful restraint, and unlawful delivery of a controlled substance. Defendant had entered a plea of guilty to all of those offenses in April of 1986.

As was said in Perruquet:

“[T]he trial judge is normally in a better position to determine the punishment to be imposed than the courts of review. [Citations.] A reasoned judgment as to the proper sentence to be imposed *** depends upon many factors, including the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age. [Citation.] The trial judge, in the course of the trial and the sentencing hearing, has an opportunity to consider these factors ‘which is superior to that afforded by the cold record in this court.’[Citation.]” (Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884.)

Recognizing the great deference to which the decision of the trial court is entitled and considering all of the circumstances reflected by the record here, we cannot say that the trial court abused its discretion in imposing this sentence. Despite the defendant’s assertions to the contrary, it was not error for the trial court to consider deterrence of others as an aggravating factor. Nor does the record indicate that the rehabilitation of the defendant was not given appropriate consideration together with other elements to be considered in the fixing of a sentence. Further, whatever the defendant’s intent may have been concerning the victim, the record here is such that, even if he did not intend to kill Jason Jackson, the court did not abuse its discretion in the imposition of sentence.

Affirmed.

GOLDENHERSH, P.J., and CHAPMAN, J., concur.


author: JUSTICE RARICK

text:
      In re ESTATE OF MARY ELLEN DEVOY, Deceased (Theodore Van Winkle, Petitioner-Appellee, v. Michael Maughan, Ex’r, Respondent-Appellant).— In re ESTATE OF MARY ELLEN DEVOY, Deceased (Linda Sue Devoy et al., Petitioners-Appellees, v. Michael Maughan, Ex’r, Respondent-Appellant).
    Fifth District
    Nos. 5—91—0299, 5—91—0537 cons.
    Opinion filed July 24, 1992.

      James R. Conley, Jr., of Carmi, and Wayne Morris, of McLeansboro, for appellant.
    Theodore Van Winkle, of McLeansboro, pro se, for appellees.
   JUSTICE RARICK

delivered the opinion of the court:

The executor of the estate of Mary Ellen Devoy, deceased, appeals from the judgment entered by the circuit court of Hamilton County awarding $789.20 for legal services provided to the former administrator of the estate and awarding $6,500 to Linda Devoy for care provided to Mary Ellen prior to her death and $7,000 to Ronald Devoy for his care of Mary Ellen as guardian and for administration of her estate prior to being removed. For purposes of appeal, the cases have been consolidated. We reverse the judgment.

On April 23, 1982, Mary Ellen Devoy executed an original and photostatic copy of her last will and testament which bequeathed her property to St. Patrick Catholic Church and appointed the pastor as executor. The original will was given to Reverend Maughan, the local parish pastor, and the copy was left with Mary Ellen’s attorney. In 1983, Ronald Devoy, Mary Ellen’s second cousin, was asked to sign a medical consent for Mary Ellen. At this point Ronald and his wife, Linda, became “involved” in Mary Ellen’s life. From 1983 to her death in January of 1987, much of Mary Ellen’s time alternated between hospital stays and nursing home care. When Mary Ellen was able to be at home, Linda would come and stay with her for several hours at a time rendering her personal and household assistance. On January 25, 1984, during one of Mary Ellen’s releases from the hospital, Mary Ellen, Ronald and Linda arrived at the office of Mary Ellen’s attorney to retrieve her will. Different witnesses gave differing versions of what occurred at the attorney’s office and thereafter. Suffice it to say, Ronald and Linda believed the will had been revoked. In March of 1985, Ronald was appointed guardian of the estate of Mary Ellen at which time he took possession of her personal and real property. On January 15, 1987, the day of Mary Ellen’s death, Ronald filed a petition for letters of administration of the estate. He was appointed as administrator to collect until Reverend Maughan filed with the court the original copy of Mary Ellen’s will along with a motion to revoke the letters of administration issued to Ronald. The will was admitted to probate, and Reverend Maughan was appointed executor. Ronald and other relatives then filed a petition to contest the will alleging it had been revoked. The trial court found in favor of the executor, a decision which we ultimately affirmed on appeal. (In re Estate of Devoy (February 15, 1991), No. 5 — 90—0310 (unpublished order pursuant to Supreme Court Rule 23 (134 Ill. 2d R. 23)).) While the appeal was pending, the trial court conducted hearings on various claims against the estate filed by the Devoys and the attorney who assisted them. The attorney petitioned to have Mary Ellen’s estate pay additional fees allegedly incurred in connection with administering the estate before Ronald’s letters were revoked. Linda filed a claim for $9,599.63 against the estate for staying with Mary Ellen at her home for various periods from January of 1984 until her death and for visiting Mary Ellen in the nursing home and hospital whenever she was not at home. Linda alleged she had been “hired” by Mary Ellen to help her even though the guardian had made no contract with her for such assistance. Ronald filed a claim for $7,954 against the estate in connection with his care of Mary Ellen before she died and for administration of her estate before being removed. The trial court awarded Ronald $7,000 and Linda $6,500 and awarded the attorney $789.20. Reverend Maughan (Executor) appeals the awards.

Before addressing the merits of the issues presented by Executor on appeal, we first must determine whether we have jurisdiction to review the allowance of the claim of Ronald Devoy. On January 31, 1991, the trial court allowed in part and denied in part the claims of Ronald and Linda Devoy. On February 28, Executor filed a motion to modify this judgment. The motion to modify attacked only the portion of the order allowing Linda’s claim. On April 15, 1991, the trial court allowed the claim of the attorney for $789.20 for legal services. On April 26, 1991, Executor filed his notice of appeal from that order. Once the motion to modify was denied, Executor filed a notice of appeal with respect to the claims of both Linda and Ronald. The two appeals have been consolidated in this court. There is no question that this court has jurisdiction of the appeal with respect to the attorney fees issue and with respect to Linda’s claim. The question then becomes whether Executor’s motion to modify tolled the appeal period with respect to the claim of Ronald.

Supreme Court Rule 304(b) provides for an appeal without the finding otherwise required by Rule 304(a) from “(1) [a] judgment or order entered in the administration of an estate *** which finally determines a right or status of a party.” (134 Ill. 2d R. 304(b)(1).) The timing of an appeal under Rule 304(b) is governed by Rule 303(a)(1). (Elg v. Whittington (1987), 119 Ill. 2d 344, 355, 518 N.E.2d 1232, 1237 (discussing a Rule 304(b)(3) appeal).) Rule 303(a)(1) provides in pertinent part: “the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, *** [in that event] within 30 days after the entry of the order disposing of the last pending post-trial motion.” 134 Ill. 2d R. 303(a)(1).

In this case, the trial court allowed the claims of Linda and Ronald Devoy in a single record sheet entry dated January 31, 1991. We conclude this entry was a single judgment disposing of both claims rather than a separate judgment for each claim. Although the executor’s post-trial motion only requested modification of Linda's award, it was sufficiently “directed against the judgment” to toll the appeal period with respect to both the award to Linda and the award to Ronald. Additionally, we note Ronald appeared by counsel and actively participated in the hearing on the motion to modify the judgment from which appeal is sought. We therefore conclude we also have jurisdiction to address Executor’s contentions with respect to the claim of Ronald against the estate of Mary Ellen Devoy.

Executor contends the trial court erred in awarding $7,000 in fees to Ronald Devoy, the former representative of Mary Ellen’s estate, when the evidence revealed he breached his fiduciary duty to the estate both as guardian and administrator. First, Executor points to several misstatements made by Ronald and/or through his attorney pertaining to the revocation of Mary Ellen’s will. Secondly, Executor believes Ronald benefitted himself personally as well as other members of the family at the expense of the estate and further failed to retain new counsel who would advance the best interests of the estate, and not those of Ronald and Linda Devoy. Based on the record before us, we must agree. The administrator of an estate is held to the highest standard of fair dealing and diligence when dealing with the estate. (See In re Estate of Storer (1971), 131 Ill. App. 2d 1049, 1054, 269 N.E.2d 352, 355-56.) Once a conflict of interest which interferes with the objective administration of the estate surfaces, the administrator should be removed. (In re Estate of Phillips (1972), 3 Ill. App. 3d 1085, 1090, 280 N.E.2d 43, 46; see also In re Estate of Chapman (1982), 104 Ill. App. 3d 794, 797, 433 N.E.2d 313, 315.) Here, Ronald participated in or allowed misrepresentations to be made before the trial court as to the status of Mary Ellen’s will. The will first allegedly was torn up at the attorney’s office, then it was torn up once Mary Ellen arrived home, then it was destroyed a few days later in front of another relative, and finally the pieces of the torn will were found in Mary Ellen’s safety box at home. The status of the will clearly presented a conflict of interest, for if the will were destroyed, Ronald would inherit a portion of Mary Ellen’s estate through intestacy. Another example of a breach of Ronald’s fiduciary duty to the estate can be gleaned from the alleged sale of Mary Ellen’s antique automobile to a family member for $300, minutes before the public auction of her estate, and subsequent listing for resale at a price of $12,000. Executor believes other items of value from the estate also suffered a similar fate. Such breaches of fiduciary duty justify removal; they do not justify compensation. Consequently, the trial court erred in allowing Ronald’s claim against Mary Ellen’s estate.

Turning to the attorney’s claim, Executor argues on appeal the trial court erroneously allowed an award for additional attorney fees in spite of the fact counsel also breached his fiduciary duty to the estate. Executor believes the attorney not only intentionally misrepresented material facts to the trial court pertaining to the revocation of Mary Ellen’s will, but also allowed the administrator (Ronald) to dispose of certain assets in manners allegedly detrimental to the estate, allowed the accounting to be filed untimely in violation of court order, and was unable to detail services he allegedly performed beyond these already paid for, and without prior court approval. We must agree with Executor under the circumstances presented. It is true that the Probate Act of 1975 entitles estate representatives and attorneys to reasonable fees for their services. (See Ill. Rev. Stat. 1987, ch. 1101/2, pars. 27 — 1, 27— 2; In re Estate of Thomson (1986), 139 Ill. App. 3d 930, 939, 487 N.E.2d 1193, 1200.) Such fees, however, not only require court approval but are also subject to the discretion of the trial court based upon such factors as the size of the estate, the work done, the skill evidenced by the work, the time expended, the success of the efforts involved, good faith, and the efficiency with which the estate was administered. (Estate of Thomson, 139 Ill. App. 3d at 939, 487 N.E.2d at 1200; see also In re Estate of James (1956), 10 Ill. App. 2d 232, 239-40, 134 N.E.2d 638, 641-42.) Here, the attorney not only contributed to the filing of an untimely accounting, but he also made several misrepresentations to the court, allegedly based on information supplied by Ronald, and failed to have Ronald removed as executor of the estate once his suitability to administer the estate came into question. As an attorney to the administrator and as an officer of the court, the attorney was a fiduciary to the estate and had a duty to inform the court of any suspicions of unsuitability in the performance of the administration of the estate. (In re Estate of Glenos (1964), 50 Ill. App. 2d 89, 94, 200 N.E.2d 65, 67.) By not having fulfilled or having attempted to fulfill such obligations, counsel was not entitled to any allowance of additional fees. The attorney had already been paid $1,927.20 without court approval, and when questioned as to the amount or type of work performed justifying his claim for an additional $789.20, he was unable to give any detailed or even comprehensible answer. Under such circumstances, even while acknowledging the fact the trial court has expertise to make such awards, we have no choice but to declare the trial court abused its discretion in allowing any additional claim against the estate of Mary Ellen in connection with legal services provided to Ronald as guardian and former administrator of the estate. We therefore reverse the award in favor of the attorney.

We likewise must reverse the award in favor of Linda Devoy. Linda requested compensation for helping Mary Ellen in her home and for visiting her in the hospital and nursing home. While we commend Linda for her efforts to aid Mary Ellen, she is not entitled to compensation under the facts presented here, absent some type of express contract. It has long been the law in Illinois that a person who furnishes services to a family member is presumed to do so gratuitously. (See In re Estate of Hill (1980), 88 Ill. App. 3d 1038, 1039-40, 411 N.E.2d 77, 79; In re Estate of Foster (1964), 46 Ill. App. 2d 319, 326-27, 197 N.E.2d 257, 261.) In order to overcome this presumption, the person requesting compensation from the estate must establish either an express contract or an implied “contract established by such facts and circumstances as show that both parties, at the time the services were rendered, contemplated or intended pecuniary recompense other than that which arises naturally out of the family relation.” (Estate of Hill, 88 Ill. App. 3d at 1041, 411 N.E.2d at 80.) This Linda cannot and did not do. Mary Ellen’s guardian testified he never hired Linda to perform any services for Mary Ellen while she was alive, nor does the record reveal any payments by Mary Ellen to Linda at times when assistance was rendered. More importantly, Linda herself testified she would have performed the same services and visited Mary Ellen in the hospital or nursing home whether or not her husband was Mary Ellen’s guardian simply because she liked Mary Ellen. Under such circumstances, we cannot sanction the award of $6,500 to Linda Devoy.

For the aforementioned reasons, we reverse the judgment of the circuit court of Hamilton County with respect to the claims of Ronald and Linda Devoy and with respect to the claim of the attorney against the estate of Mary Ellen Devoy.

No. 5 — 91—0299, Reversed.

No. 5 — 91—0537, Reversed.

HARRISON and W. LEWIS, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
    JOAN PHILLIPS, Plaintiff-Appellant, v. DALE JOHNSON, Defendant-Appellee.
    Third District
    No. 3—91—0345
    Opinion filed June 29, 1992.
    — Modified on denial of rehearing August 26, 1992.
    Cusack & Fleming, P.C., and John F. Kamin, of Quinn, Johnston, Henderson & Pretorius, both of Peoria (Michael A. Fleming, of counsel), for appellant.
    Mustain & Lindstrom and John T. Pepmeyer, of Pepmeyer & Pepmeyer, both of Galesburg (Douglas D. Mustain, of counsel), for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Plaintiff Joan Phillips appeals from the dismissal of her complaint for damages allegedly arising out of sexual abuse committed against her by defendant, Dale Johnson, when she was a child.

Plaintiff was 35 years old when she filed her complaint in the circuit court of Knox County on August 21, 1990. She alleged that defendant is her uncle, that at various times while she was a minor defendant touched and fondled her breasts and genitals and sexually abused her, and that defendant’s conduct caused great emotional and mental anguish so that she repressed her memory of those events from her conscious mind for many years. Plaintiff further alleged that on August 22, 1988, during treatment for the emotional and psychological damage caused by defendant, she began to recall what defendant had done to her. Finally, plaintiff alleged that, as a result of defendant’s conduct, she suffers physical, emotional, psychological, and mental injury, including depression, extreme anxiety, suicidal tendencies, night terrors, gastro-intestinal problems, various phobias, insomnia, and problems with marital and family relationships.

Defendant filed a motion to dismiss asserting, inter alia, that the complaint was barred by the two-year statute of limitations in that it was filed more than two years after plaintiff reached her 18th birthday. (See Ill. Rev. Stat. 1989, ch. 110, par. 13—211.) The trial court granted the motion to dismiss and then denied a subsequent motion to reconsider. This appeal followed.

The determinative issue is whether the two-year period of limitation on plaintiff’s cause of action began to run in 1988 when she discovered the previously repressed events of sexual abuse or whether, as the trial court found, the limitations period began to run on her 18th birthday.

When the trial court refused to apply what is known as the “discovery rule,” the court used a balancing test to determine that the hardship on plaintiff caused by the bar of her suit was outweighed by the burden on defendant to obtain proof of his defense after so many years. (See Lincoln-Way Community High School District 210 v. Village of Frankfort (1977), 51 Ill. App. 3d 602, 367 N.E.2d 318.) The trial court also considered the nature of plaintiff’s evidence and specifically stated that plaintiff’s pleadings do not suggest that she has “any extrinsic verifiable evidence” and, further, that the completely subjective nature of the testimony and the lapse of time would make the evidence less trustworthy.

Looking at the history of the discovery rule in Illinois, court decisions and statutory provisions have held that, in cases involving allegations of medical malpractice, the statute of limitations begins to run when a person knows or reasonably should know of her injury and also reasonably should know that it was wrongfully caused. (Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869; Lutes v. Farley (1983), 113 Ill. App. 3d 113, 446 N.E.2d 866.) The case relied upon by the trial court, Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864, held that the discovery rule did apply in a strict liability action brought by an asbestos worker who had received medical treatment for breathing problems since 1957 but who did not learn that asbestos was the cause until 1973. In Nolan the court observed:

“We hold, therefore, that when a party knows or reasonably should know both that an injury has occurred and that it was wrongfully caused, the statute begins to run and the party is under an obligation to inquire further to determine whether an actionable wrong was committed. In that way, an injured person is not held to a standard of knowing the inherently unknowable ***.” 85 Ill. 2d at 171, 421 N.E.2d at 868.

A short time after the Nolan v. Johns-Manville Asbestos decision, the supreme court in Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 416, 430 N.E.2d 976, explained further:

“At some point the injured person becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved. At that point, under the discovery rule, the running of the limitations period commences.”

On a motion to dismiss, we must assume that the allegations of the complaint are true. Looking at the complaint here, plaintiff’s allegations indicate that she did not have sufficient information to cause her to inquire as to the possibility of actionable conduct until she was able to break through her suppressed memory and recall that she had been sexually abused as a child. She argues that to deny applicability of the discovery rule would place an impossible burden upon those who have been sexually abused as children and whose memories of the abuse have been suppressed.

In a case very similar to the case at bar, Johnson v. Johnson (N.D. Ill. 1988), 701 F. Supp. 1363, the 36-year-old plaintiff alleged that her father had abused her sexually between 1958 and 1968, that she had suppressed her memories of the abuse as a self-protecting measure, and that in 1987 during treatment she recovered her memory of the abuse. The United States District Court distinguished between those incest cases where the plaintiff knows of the sexual conduct but is unaware of the physical or psychological problems caused by the abuse until past the period of limitation and those cases where the plaintiff has no memory of sexual abuse until shortly before suit is filed.

The court in Johnson v. Johnson examined those cases where the discovery rule has been held not to apply to the first type case. (See DeRose v. Carswell (1987), 196 Cal. App. 3d 1011, 242 Cal. Rptr. 368; E.S. v. D.C.H. (Mont. 1988), 754 P.2d 817.) The Johnson court observed that Wisconsin has held that a cause of action for incestuous abuse accrues when the victim discovers, or in the exercise of reasonable diligence should have discovered, both the fact and the cause of the injury. (Hammer v. Hammer (1987), 142 Wis. 2d 257, 418 N.W.2d 23, review denied (1988), 144 Wis. 2d 953, 428 N.W.2d 552.) By including discovery of the cause of injury as well as the fact of injury as bearing on the applicability of the discovery rule, the Wisconsin court indicated that it would apply the rule in both types of incest cases.

In the Johnson decision, the court also considered the contrary view of the Washington Supreme Court which held, in a 5 to 4 decision, that the discovery rule does not apply to either type of childhood sexual abuse case. (Tyson v. Tyson (1986), 107 Wash. 2d 72, 727 P.2d 226.) Johnson gave little weight to Tyson since that decision has been superseded by statute. See North Coast Air Services, Ltd. v. Grumman Corp. (1988), 111 Wash. 2d 315, 759 P.2d 405.

After reviewing these rulings in other States, the Federal court in Johnson v. Johnson determined that Illinois courts would take into account the equitable considerations involved and would allow the discovery rule to apply in the case of suppressed memory of childhood abuse. Subsequently, we had occasion to review a case where the plaintiff knew of the childhood abuse but was unaware of the causal connection between the abuse and the problems she suffered as an adult. In Franke v. Geyer (1991), 209 Ill. App. 3d 1009, 568 N.E.2d 931, this court acknowledged that the discovery rule could apply to a cause of action based on childhood sexual abuse.

We conclude that the manifest injustice of requiring plaintiff to know that which is inherently unknowable outweighs defendant’s difficulty of proof in this case. To hold otherwise would deny a remedy to those who survive childhood sexual abuse by suppressing the memory of the abusive acts. Furthermore, the trial court improperly considered the reliability of plaintiff’s anticipated evidence in ruling on a motion to dismiss the complaint. Psychological evidence is generally admissible, assuming that relevancy and foundational requirements are met, and determination of credibility and weight are matters for the trier of fact.

An additional question presented by this appeal is whether plaintiff’s cause of action is barred by retroactive application of an amendment to the statute of limitations (Ill. Rev. Stat., 1990 Supp., ch. 110, par. 13 — 202.2 (effective January 1,1991)), which provides in part:

“(b) An action for damages for personal injury based on childhood sexual abuse must be commenced within 2 years of the date the person abused discovers or through the use of reasonable diligence should discover that the act of childhood sexual abuse occurred and that the injury was caused by the childhood sexual abuse, but in no event may an action for personal injury based on childhood sexual abuse be commenced more than 12 years after the date on which the person abused attains the age of 18 years.”

Obviously, the Illinois legislature has recognized that the discovery rule is applicable to childhood sexual abuse cases, as indicated in Johnson v. Johnson in 1988 and Franke v. Geyer, but has seen fit to place a 12-year limit on the availability of a remedy for such abuse.

The amendatory enactment also contains an express provision that it is to apply to actions pending on January 1, 1991 (the effective date of Public Act 86 — 1346), as well as to actions commenced on or after that date. In the instant case, defendant’s motion to dismiss was heard on December 4, 1990, but was not decided by the trial court until a letter dated January 29, 1991, was sent to the attorneys. The applicability of Public Act 86 — 1346 was raised for the first time in plaintiff’s motion to reconsider, and in denying that motion, the trial court cited the statute as an additional reason for dismissing the complaint, thus holding, in effect, that the statute did apply retroactively to bar plaintiff’s remedy.

Where retroactive application is not expressly provided for, an amendment to a statute of limitations which decreases the time in which an action can be filed will not be applied retroactively so as to bar instantaneously an existing cause of action. Rather, an injured person must have a reasonable time after the effective date of the amendment within which to bring an action. (Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 447 N.E.2d 408.) Further, even when the legislature expresses an intent that the limitations period be shortened retroactively, courts will not allow the instantaneous termination of a cause of action which existed prior to the effective date of the statute unless the injured party has a reasonable period of time to file a complaint after the effective date. (Klawitter v. Crawford (1989), 185 Ill. App. 3d 778, 541 N.E.2d 1159.) This court in American Fly Ash Co. v. County of Tazewell (1983), 120 Ill. App. 3d 57, 457 N.E.2d 1069, ruled that an amendment which shortens a limitations period will not be given retroactive effect if retroactive application would lead to unreasonable or unjust results. (Accord DeSeve v. Ladd Enterprises, Inc. (1985), 137 Ill. App. 3d 796, 484 N.E.2d 1220; Champaign County Nursing Home v. Petry Roofing, Inc. (1983), 117 Ill. App. 3d 76, 452 N.E.2d 847.) As we said in American Fly Ash Co. v. County of Tazewell, questions of retroactive shortening of the period of limitations must be decided on the basis of whether basic concepts of justice, fairness and equity militate for or against retroactive application of the statute.

Defendant argues that plaintiff had no bona fide expectation of a right to a cause of action prior to the enactment of Public Act 86— 1346, but, as we have already decided, plaintiff was entitled to the benefit of the discovery rule without any additional limitation prior to the statutory amendment. Additionally, we believe the 1988 decision in Johnson v. Johnson created a bona fide expectation that Illinois courts would recognize such a cause of action.

Defendant cites two cases holding that retroactive legislation did not violate the Illinois or United States Constitution. (Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560 (where the medical malpractice statute of repose ended the period for bringing suit prior to discovery of the injury); Sanelli v. Glenview State Bank (1985), 108 Ill. 2d 1, 483 N.E.2d 226 (where retroactive legislation affecting contract rights was held constitutional).) Both cases are distinguishable from the case at bar since they did not involve the issue before us.

Anderson v. Wagner involved the constitutionality of legislation which had shortened the statute of limitations for medical malpractice actions to a period which expired before the injury was discovered or filed. The court ruled that the statute did not violate either the due process clause or the “special legislation” clause of the Illinois Constitution of 1970. Retroactive application to a pending suit was not considered. Sanelli v. Glenview State Bank involved a constitutional challenge to a statute which eliminated a cause of action for a violation of fiduciary duties when a bank serving as a land trustee loans money to the trust. The only issues in Sanelli involved questions of substantive rights, not the period for bringing suit. Neither case is controlling as to the issues raised in the case before us.

Here plaintiff had filed her complaint prior to the effective date of the statute which shortened the period for filing. As we have indicated above, her complaint was timely filed pursuant to the discovery rule then in effect. Basic concepts of justice, fairness, and equity require that a cause of action for childhood sexual abuse not be extinguished by retroactive application of Public Act 86 — 1346 to a pending case. We hold that the ruling of the trial court to the contrary was erroneous.

For the reasons stated, we reverse the dismissal order of the circuit court of Knox County and remand this cause for further proceedings.

Reversed and remanded.

SLATER and HAASE, JJ., concur.

      In defendant’s petition for rehearing, he has cited a later decision in the same proceeding where the district court held that the plaintiff’s action was now barred by the Illinois statute of repose effective January 1, 1991. Johnson v. Johnson (N.D. Ill. 1991), 766 F. Supp. 662.) See note 2, infra.

      In Johnson v. Johnson (N.D. Ill. 1991), 766 F. Supp. 662, the court did not consider the applicability of the statute of repose to pending cases, but rather assumed that the 1991 statute did apply to that case since the parties did not dispute its applicability.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OMAR ADAWI, Defendant-Appellant.
    Fourth District
    No. 4—91—0723
    Opinion filed June 29, 1992.

      Theodore A. Gottfried, of State Appellate Defender’s Office, of Springfield (Barbara VanTine, of Mason City, of counsel), for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

At a bench trial in July 1991, the trial court found defendant guilty of three counts of unlawful delivery of a controlled substance (more than 5 grams but less than 15 grams of a substance containing cocaine) (counts I to III) (Ill. Rev. Stat. 1989, ch. 561/2, par. 1401(c)(2)), unlawful possession with intent to deliver a controlled substance (10 or more segregated parts of objects containing in them or having on them a substance containing lysergic acid diethylamide (LSD)) (count IV) (Ill. Rev. Stat. 1989, ch. 56V2, par. 1401(a)(7)), and unlawful possession with intent to deliver cannabis (more than 500 grams of a substance containing cannabis) (count XII) (Ill. Rev. Stat. 1989, ch. 56V2, par. 705(e)). In September 1991, the court sentenced defendant to four years in prison each on counts I to III, six years in prison on count IV, and three years in prison on count XII, with all sentences to run concurrently. Defendant appeals, arguing that (1) the trial court erred by denying his motion to dismiss on statutory double jeopardy grounds, and (2) the State’s evidence did not prove him guilty beyond a reasonable doubt.

We affirm.

I. Defendant’s Motion To Dismiss

In January 1991, the State filed an initial 13-count information charging defendant with various drug-related offenses. In April 1991, the Champaign County grand jury returned a 21-count indictment, again charging defendant with various drug-related offenses and subsuming the earlier information. In May 1991, while those charges were pending, the Illinois Department of Revenue (Department) filed a notice of State tax lien with the Champaign County circuit clerk, notifying defendant that, “there is now due, owing, and unpaid [from defendant] to the State of Illinois, taxes, penalties, and interest arising under the Cannabis and Controlled Substances Tax Act [(Act)] (Ill. Rev. Stat., ch. 120, par. 2151 et seq.).” The notice stated that the amount due was $250,507.12. The notice cited section 16 of the Act (Ill. Rev. Stat. 1989, ch. 120, par. 2166) and informed the circuit clerk that defendant has been notified of this lien upon all of his accounts, including funds belonging to him which may be in the possession of the circuit clerk, except to the extent that those funds may be used to pay fees, restitution, fines, or other costs as ordered by the court.

Prior to the July 1991 bench trial, defendant filed a motion to dismiss, arguing that prosecution was barred by sections 3 — 3 and 3 — 4 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, pars. 3 — 3, 3 — 4), the fifth amendment to the United States Constitution (U.S. Const., amend. V), and article I, section 10, of the Illinois Constitution (Ill. Const. 1970, art. I, §10). In his motion, defendant asserted that he was charged with multiple counts of various drug-related offenses and that he had “already been punished for the instant offense in that he has been subjected to a jeopardy assessment by the Illinois Department of Revenue punishing substantially the same conduct with which he is charged *** in the instant case.” The trial court denied defendant’s motion, and on appeal defendant now argues only sections 3 — 3 and 3 — 4 of the Code in support of his position that the trial court erred by denying his motion to dismiss.

Sections 16(a) and (c) of the Act state, in part, the following:

“(a) Assessment. An assessment for a dealer not possessing valid stamps or other official indicia showing that the tax has been paid shall be considered a jeopardy assessment or collection, as provided by Section 1102 of the Illinois Income Tax Act. The Department shall determine and assess a tax and applicable penalties and interest according to the best judgment and information available to the Department, which amount so fixed by the Department shall be prima facie correct and shall be prima facie evidence of the correctness of the amount of tax due, as shown in such determination.
(c) Protest. If the taxpayer believes that he does not owe some or all of the amount for which the jeopardy assessment lien against him has been filed, he may protest within 20 days after being notified by the Department of the filing of such jeopardy assessment lien and request a hearing, whereupon the Department shall hold a hearing in conformity with the provisions of Section 908 of the Illinois Income Tax Act and, pursuant thereto, shall notify the taxpayer of its decision as to whether or not such jeopardy assessment lien will be released.
After the expiration of the period within which the person assessed may file an action for judicial review under the Administrative Review Law without such action being filed, a certified copy of the final assessment or revised final assessment of the Department may be filed with the Circuit Court of the county in which the dealer resides *** or in the county where the violation of this Act took place.” Ill. Rev. Stat. 1989, ch. 120, pars. 2166(a), (c).

Section 10 of the Act provides that “[i]n addition to the tax and penalty imposed, a dealer distributing or possessing cannabis or controlled substances without affixing the required stamps, labels, or other indicia is guilty of a Class 4 felony.” Ill. Rev. Stat. 1989, ch. 120, par. 2160.

Defendant refers to sections 10 and 16(a) of the Act and then presents this court with the following argument:

“Because the jeopardy assessment placed upon [defendant] was prima facie correct, it, therefore, follows that the Defendant was guilty of a Class 4 felony upon the service of the Notice of State Tax Lien on May 22, 1991. [Defendant’s] guilt was predicated upon his sale of cannabis and controlled substances.”

By the above argument, defendant attempts to equate the Department’s filing of a State tax lien with his being convicted of a Class 4 felony for violating the Act. This attempt is utterly without merit.

Section 16(a) of the Act is part of a comprehensive administrative scheme by which the Department may assess a lien through administrative procedures and thereby seek to obtain the assets of a person who owes tax pursuant to the provisions of the Act. Section 16(c) of the Act explicitly provides for “judicial review under the Administrative Review Law” for persons who believe the tax was improperly assessed against them (Ill. Rev. Stat. 1989, ch. 120, par. 2166(c)), and sections 25 and 26 of the Act expressly make the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1989, ch. 127, par. 1001 et seq.) and the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.) applicable to proceedings under the Act. (Ill. Rev. Stat. 1989, ch. 120, pars. 2175, 2176.) The filing of the State tax lien is simply a preliminary step in a civil administrative procedure. Because mere notice of the assessment of a civil penalty is not tantamount to a criminal conviction, the filing of the State tax lien does not in any way implicate the protections afforded defendants by sections 3 — 3 and 3 — 4 of the Code.

Even if we were to conclude that the notice of tax lien became “final” upon the expiration of the 20-day period for filing a protest under section 16(c) of the Act, any question of whether the lien constitutes an impermissible second punishment is not before us. Because defendant raises no claim that the lien is extreme or that it bears no rational relationship to the State’s legitimate right to impose a separate civil sanction upon him for his conduct, he is not attempting to avoid the lien. (See United States v. Halper (1989), 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892; People v. 1988 Mercury Cougar (1992), 225 Ill. App. 3d 876, 587 N.E.2d 595, appeal allowed (1992), 145 Ill. 2d 641.) Accordingly, the trial court correctly denied defendant’s motion to dismiss.

II. Sufficiency Of The Evidence

In his argument regarding the sufficiency of the evidence to convict him, defendant does not challenge the evidence at trial that showed he possessed a large quantity of assorted illegal drugs, including cocaine, heroin, and cannabis. Nor does defendant seriously contest the testimony of the State’s confidential source, Randy Frank, who made a deal with the police to purchase drugs from defendant (and proceeded to do so five or six times) in order to help himself regarding his own charge of selling cocaine. Frank testified that over a V-k-yeav period, he was in defendant’s apartment more than 20 separate times when he observed visitors enter, saw defendant take them to a separate room, and then saw them leave a few minutes later.

Each of Frank’s purchases of cocaine from defendant was a “controlled buy,” meaning the police searched Frank to ensure he possessed no cocaine before they watched him go into defendant’s apartment and return to them a short time later with cocaine that Frank said he bought from defendant. The officers involved in these “controlled buys” all testified. A State Police officer experienced with illegal drug trafficking testified that a conservative street value on the various unlawful drugs contained within defendant’s apartment would run from $16,000 to $19,000.

Defendant’s primary argument on appeal, as it was at the trial level, was directed at the sufficiency of the evidence presented to prove him guilty of count IV (possession with intent to deliver LSD). Defendant argues that the evidence showed he was a “drug connoisseur,” who hoarded supplies of controlled substances “much like the general populace collects vacation mementos.” In response to this argument, the trial court noted that significant quantities of LSD were packaged for sale and that defendant had told Frank he personally did not like the effects of LSD. The trial court rejected the defendant’s “mementos” theory and found him guilty of count IV. We similarly reject defendant’s argument and find that the evidence fully supported the trial court’s verdict. See People v. Cordle (1991), 210 Ill. App. 3d 740, 741-42, 569 N.E.2d 209, 210.

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

Affirmed.

GREEN, P.J., and KNECHT, J., concur.