source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OWEN TURNER, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 89—3000
    Opinion filed December 10, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Renee C. Graham, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Stabrawa, and Stephen Ferrucci, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Owen Turner, was indicted along with six co-defendants on the charges of murder, armed robbery, and conspiracy to commit murder. The trial court granted severances and ordered that all defendants be tried separately. Following a jury trial, defendant was convicted of murder and of armed robbery and received concurrent sentences of 40 years and 30 years, respectively.

On appeal, defendant contends that the trial court erred in (1) admitting evidence of other crimes, (2) admitting testimony by Officer Smulevitz that he took defendant to police headquarters for “the test,” (3) penalizing defendant for exercising his constitutional right to a trial, (4) denying his motion to quash arrest and to suppress evidence where the State failed to establish valid consent or exigent circumstances to justify the warrantless entry into defendant’s home, (5) denying his motion to quash arrest and to suppress evidence where the State failed to establish that the police officers had probable cause to arrest him, (6) ruling that his arrest on an unrelated charge was not a pretext for holding him on the instant offense, (7) denying his motion to suppress statements where the State failed to establish that those statements were knowingly, intelligently, and voluntarily made, and (8) imposing excessive sentences.

We affirm.

Background

The evidence adduced at trial established that the victim, Tijuan Hicks, was robbed and fatally shot at approximately 11:30 p.m. on December 27, 1987, while he was delivering a pizza. The shooting occurred outside the Chicago Housing Authority (CHA) apartment building located at 2514 West Van Burén Street. When Chicago police officers Glenn Turner and Darrin Hill arrived at the scene, they found Hicks’ car double-parked in front of the apartment building. The car doors were open, and Hicks’ body was lying partially outside of the car. During their investigation, the police discovered that the pizza had been ordered by Cynthia Coleman at the request of Melvin Jones. The police ultimately charged defendant, Jones, and five other co-defendants with the shooting and armed robbery of Hicks.

Prior to trial, defendant filed a motion to quash arrest and to suppress evidence which alleged that he was arrested in violation of his fourth amendment right to be free from unreasonable searches and seizures. Specifically, defendant asserted that the officers arrested him without a valid warrant, probable cause, or exigent circumstances.

At the hearing on this motion, defendant’s sister, Patricia Ford, testified that she and defendant were at home on December 28, 1987, when three police detectives came to their apartment. When she answered the door, Detective Gene Harris asked whether defendant lived there. Ms. Ford said that he did and indicated that he was in the bathroom. Thereafter, Detective Harris entered the apartment along with the two other detectives. Ms. Ford denied that she had given the officers permission to enter.

Ms. Ford testified further that she heard a knock at the bathroom door and heard Detective Harris tell defendant to come out. After defendant came out of the bathroom, he left with Harris and was handcuffed outside the apartment. On cross-examination, Ms. Ford stated that when she opened the apartment door, Detective Harris identified himself as a Chicago police officer, and she acknowledged that she had not complained that the police entered her house without permission until the motion to suppress was presented. Ms. Ford also testified that defendant was not searched, handcuffed, or advised of his constitutional rights while inside the apartment.

The testimony of defendant’s mother, Earnestine Turner, corroborated that of Patricia Ford. Mrs. Turner stated further that Detective Harris said he wanted to bring defendant to the police station for an hour in order to ask him some questions. On cross-examination Mrs. Turner acknowledged that she was not paying much attention when the apartment door was opened. Mrs. Turner also admitted that she had never complained that the police officers entered her house without her consent.

The State called Detective Gene Harris, who testified that on December 28, 1987, he was investigating the shooting death of Tijuan Hicks. At approximately 3 p.m., he and two other detectives went to defendant’s home in an effort to learn the whereabouts of Melvin Jones. Harris knocked at the door, and a young woman answered. The detectives then identified themselves, displayed their badges, and stated their reason for being there. According to Harris, the woman identified herself as defendant’s sister and invited them into the apartment.

Detective Harris testified further that the young woman called out to defendant that the police were there and wanted to speak with him. A short time later, another woman identified herself as defendant’s mother, and Harris explained to her the purpose of their visit. According to Harris, he and the other two detectives were in the apartment for approximately 35 minutes. During that time, they also spoke with Sharolynn Turner, another of defendant’s sisters. After several minutes, defendant walked from the rear of the apartment and into the living room with co-defendant Burl Pickett, who identified himself as Lawrence Williams. Harris asked defendant about the shooting of Hicks and inquired as to where they could find Melvin Jones. At that time, defendant agreed to help locate Jones and to accompany the detectives to the police station. Thereafter, defendant went to the station along with the three detectives, his sister, Sharolynn, and Pickett. Detective Harris testified that defendant was not placed under arrest and was not handcuffed when they left the apartment.

When they arrived at the police station at about 4:30 p.m., Detective Harris spoke with defendant and with defendant’s sister, Sharolynn. Harris subsequently contacted Sergeant Steele of the public housing police unit in an attempt to locate Melvin Jones. Steele told Harris that defendant was a suspect in an unrelated armed robbery. The victim of that armed robbery was brought to the station, and she identified defendant in a lineup. Defendant was charged with that robbery at approximately 8 p.m. on December 28,1987.

Detective Harris testified that defendant was still at the police station at 10 a.m. of the following day, when Harris again spoke with Sharolynn Turner. Ms. Turner said she had learned from Fellini Evans that Levy Jackson shot Hicks. Harris later spoke with Fellini Evans, Levy Jackson, Joel Buckingham, and Robert Simmons. At approximately 1 p.m. on December 29, 1987, defendant was charged along with Evans, Jackson, Buckingham, and Simmons with the murder and armed robbery of Hicks. Harris stated that defendant was not handcuffed while he was in the interview room at the police station and that defendant was advised of his constitutional rights after Harris talked to Steele about the unrelated armed robbery.

The defense then called Sharolynn Turner in rebuttal. Ms. Turner stated that the police first came to her apartment at 3 a.m. on December 28, 1987, and asked whether Melvin Jones was there. When Ms. Turner said he was not, they asked about defendant. Ms. Turner said that defendant was home and, after waking him, asked him when he had last seen Jones. After defendant said that he had not seen Jones in several months, the police officers left.

Ms. Turner testified that when she arrived at her mother’s house at 10 a.m. that morning, she saw Detective Harris and two other detectives in the apartment. After defendant got dressed, the officers took him to the police station for questioning. According to Ms. Turner, defendant was handcuffed outside the apartment. Ms. Turner stated on cross-examination that she did not leave her mother’s apartment when the officers took defendant to the police station, and she denied having a conversation with Fellini Evans in which Evans told her that Levy Jackson was the person who shot Hicks.

Upon consideration of this evidence and the arguments of counsel, the trial court denied defendant’s motion to quash arrest and to suppress evidence. In entering his ruling, the trial judge specifically found that the officers had been invited into defendant’s apartment, and there had been no forcible entry. The trial judge stated that the police detectives went to defendant’s home in an effort to locate Melvin Jones, and defendant was not a suspect in the case at that time. Noting the conflict in the testimony, the court determined that defendant had not been handcuffed outside the apartment and was not under arrest when he was taken to the station. The court also found the testimony of Detective Harris credible and held that defendant voluntarily went to the police station to assist the police in the murder investigation. The court found further that the police had probable cause to arrest defendant on December 29,1987.

Defense counsel also filed a motion to suppress defendant’s statement on the ground that it was not voluntary. At the hearing on this motion, the State called Officer Thomas Jones, who testified that on December 29, 1987, while investigating the shooting of Tijuan Hicks, he spoke with defendant at approximately 8 p.m. in an interview room at the police station. Detective DalPonte and Assistant State’s Attorney Needham were also present during this conversation. According to Jones, defendant was not handcuffed and agreed to speak with the officers after he was advised of his constitutional rights. Jones testified further that he was present on December 30, 1987, at 1:30 a.m., when defendant gave his court-reported statement. Jones stated that he did not see anyone slap, strike, threaten, or physically abuse defendant, and defendant did not complain of any physical mistreatment.

Detective Harris also testified that on December 29, 1987, he spoke with defendant about the shooting of Hicks after defendant had been advised of his constitutional rights and stated that he understood those rights. Harris stated that defendant was not struck or threatened before he gave his statement. In addition, defendant did not complain of any mistreatment and was not handcuffed during this conversation.

Sergeant Steele testified that he spoke with defendant at 6 p.m. on December 28, 1987, regarding a robbery in which defendant was a suspect. After advising defendant of his constitutional rights, which defendant said he understood, Sergeant Steele placed defendant in a lineup. Steele testified that defendant was not handcuffed and had not been slapped, struck, or threatened in any way.

The State also called Detective DalPonte, whose testimony corroborated that of Officer Jones. DalPonte denied that defendant had been handcuffed, slapped, struck, or threatened prior to giving his statement.

Defendant testified that on December 28, 1987, at about 11 a.m., he was brought from his home to the police station and placed in a second-floor interview room. At that time, Detective Harris advised defendant of his constitutional rights and questioned him for about 15 minutes.

Defendant testified further that on December 29, 1987, while in a different interview room, another detective asked him about Melvin Jones. Defendant told the detective that he had last seen Melvin Jones two weeks earlier. Defendant testified that the detective then threatened him if he refused to cooperate. Defendant also stated that he later spoke with Sergeant Steele, who asked whether he had seen Melvin Jones. Steele then told defendant that he would be charged with robbery. Defendant testified that after he denied responsibility for the robbery, Steele slapped him in the face and threatened him if he refused to cooperate.

Defendant stated that Detective DalPonte then came into the room and asked him about the murder of Hicks. When defendant denied knowing anything about it, DalPonte brought him to a different room and handcuffed him to a bar. According to defendant, DalPonte threatened to do something to him if he sat down. According to defendant, DalPonte returned 15 minutes later and hit defendant with a chair because he was sitting on the floor.

Defendant went on to state that Detective Harris came into the room and spoke to him for 30 minutes. After Detective Harris left, another detective entered and asked him a question which he did not answer. Defendant then testified that while the door was closed and he was handcuffed to the bar, he was struck twice in the ribs. At that point defendant told the detective that he knew something about the case. Defendant added that he later gave a statement because the police threatened to charge him with the crime if he did not cooperate with the State’s Attorney.

On cross-examination, defendant testified that he never told anyone at the jail about being beaten, he did not make any complaints to the police department, and he never mentioned any mistreatment to his friends or family. Moreover, defendant did not tell anyone about the mistreatment until motions were filed in his case.

The trial court denied defendant’s motion, finding that defendant gave his statement knowingly, intelligently, freely, and voluntarily. This ruling was predicated upon the court’s determination that the police officers presented credible testimony that no force was used to obtain the statement.

Defense counsel also filed a motion in limine to preclude the introduction of evidence that defendant was involved in an unrelated robbery on December 15, 1987, and to exclude all references to those portions of his oral and written statements which referred to purchasing and smoking marijuana or “leaf.” The trial judge granted defendant’s motion, but indicated that he might reconsider that ruling.

Prior to the close of the State’s case in chief, the trial judge determined that it was necessary to reconsider his ruling on the motion in limine. The court held that the State would be permitted to introduce evidence that defendant was in custody from approximately 6 p.m. on December 28, 1987, for the prior, unrelated robbery. The court indicated that this evidence was admissible to rebut the inference that defendant had been held for over 24 hours before he gave his inculpatory statement. The trial court also reversed its previous ruling excluding the admission of evidence that defendant had used controlled substances on the night of the murder.

At trial, Chicago police officer Glen Turner testified that on December 27, 1987, he and his partner received a radio call indicating that a man had been shot at 2514 West Van Burén Avenue. At the scene, he observed a car which was double-parked, with its front doors open, and Tijuan Hicks was lying outside the car. Hicks was bleeding from a gunshot wound to the right side of his neck. The officer also found a pizza box lying about 10 feet from the car. From information on the pizza box, Officer Turner discovered that the pizza had been ordered by Cynthia Coleman.

Cynthia Coleman testified that at approximately 10 p.m., on December 27, 1987, she was talking on the telephone when Melvin Jones asked her to order a pizza for him. Ms. Coleman complied with this request and then resumed her telephone conversation. Ms. Coleman stated that she was acquainted with defendant because she had seen him walking with Melvin Jones in the vicinity of her apartment building.

Merny Miller, an employee of Illinois Bell’s security department, testified that a telephone call was made to a pizza parlor at approximately 10:49 p.m. on December 27, 1987, from Cynthia Coleman’s apartment.

Detective Leslie Smulevitz testified that on December 28, 1987, at approximately 10:30 p.m., he went with defendant to 1121 South State Street for “the test.” Defense counsel immediately requested a sidebar and moved for a mistrial, asserting that the jury could have determined that this testimony referred to a polygraph test. After the trial court denied the motion for a mistrial, Smulevitz stated that at approximately 1 a.m. on December 29, 1987, defendant acknowledged that he had information regarding the homicide of Tijuan Hicks. After he had been advised of his constitutional rights, defendant stated that on December 27, 1987, he had been smoking PCP-laced marijuana in apartment 907 at 2514 West Van Burén. Upon hearing a gunshot, he went to the window and observed two people on the passenger side of a car. The right front door was open, and defendant saw a person, wearing a dark jacket and red pants, fire a shot into the car. Defendant then stated that he was unable to describe the scene further because his vision was “fogged” by what he had been smoking.

Detective Gene Harris testified that on December 28, 1987, he questioned defendant regarding the murder of Hicks. Defendant told the detective that he was at 2514 West Van Burén, apartment 907, on the previous evening. At about 11 p.m., he heard some shots. Defendant stated that he had not paid any attention to the shots because he and a friend were “getting high.” Harris also stated that on Decernber 29, 1987, he confronted defendant and advised him of his rights. Defendant admitted that he had not been truthful and stated that he was ready to tell the truth.

According to Harris, defendant stated that at 9 p.m. on December 27, 1987, he was at his sister’s apartment along with Burl Pickett, Joel Buckingham, and Robert Simmons. Later, they were joined by Melvin Jones, Fellini Evans, and Levy Jackson. As they were talking, someone said that they needed cash, and Melvin Jones suggested robbing a pizza delivery man. Jones then left but returned shortly with a .38 caliber bluesteel revolver. Thereafter, Jones left the apartment again and returned, stating that the men could go downstairs because the delivery man was on his way.

Defendant then told Harris that the seven men waited in the vestibule until Tijuan Hicks pulled up to deliver the pizza. At that time, defendant approached the car with Levy Jackson and Robert Simmons. As Hicks opened the right front door, Levy Jackson shot him twice, and Robert Simmons grabbed the pizza. Defendant was standing on the passenger side of the car and inside of the building. Defendant told Harris that he could not hear the conversation between Jackson and Hicks very clearly. After defendant heard the first shot, the passenger door of the car opened. When the second shot was fired, the driver’s door opened. Jackson then got into the car, and everyone ran back into the building. After returning to apartment 907, the seven men ate the pizza. Jackson said he took all of Hicks’ money, which amounted to $11. Thereafter, defendant and three others then took the money and went to another apartment building to purchase drugs.

Dr. Mary Irene Jumbelic of the Cook County medical examiner’s office testified that she performed a postmortem examination on Hicks. As a result of her examination, she concluded that Hicks died as a result of multiple gunshot wounds, one on the front left side of his neck, and one to the right side of his back.

Assistant State’s Attorney Thomas Needham stated that at 8 p.m. on December 29, 1987, he spoke with defendant at the police station. According to Needham, defendant indicated that he wanted to give a statement to a court reporter. At approximately 1:30 a.m. on December 30, 1987, a court reporter arrived at the station, and Needham asked defendant whether he wished to give a statement. Defendant responded that he did, and the statement was then taken by the court reporter. When defendant finished his statement, Needham read the statement to defendant, who signed the last page, and stated verbally that the statement was an accurate description of the events of December 27, 1987.

Defendant’s statement, which corroborated the testimony of Detective Harris, was read into the record.

During closing arguments, the prosecutor commented on the evidence that defendant had purchased and used illegal drugs on the night of the murder. The prosecutor also referred to the evidence that defendant was being held on an unrelated matter prior to his arrest for the instant offense. Thereafter, the jury found defendant guilty of murder and of armed robbery.

At the sentencing hearing, the State presented defendant’s juvenile background, which included an adjudication of delinquency for burglary in January 1983 as well as a probationary term of two years for robbery in December 1984. Defendant was also sentenced in February 1986 to 20 days in the Audy Home for possession of a stolen motor vehicle. Although defendant had no prior convictions as an adult, the State informed the court, over defense counsel’s objection, that defendant was free on bond for a pending weapons charge when he was arrested.

Defense counsel argued in mitigation that defendant should receive the minimum sentence because his convictions were based upon accountability. Defense counsel also argued that because defendant did not bring the gun or actually shoot Hicks, the State proved only that defendant was standing in the vicinity of the car when Hicks was shot.

Noting that defendant had chosen to go to trial, the trial judge imposed the maximum sentences possible for each conviction. In ruling that defendant serve a term of 40 years for murder and a concurrent term of 30 years for armed robbery, the trial judge stated that he would have sentenced defendant to a term of 60 years if defendant had been convicted under the new statute, which provided a maximum penalty of 60 years. The trial judge also stated that he could not impose an extended term or a life sentence without parole.

Defendant appeals his convictions and sentences, raising eight grounds for reversal.

Opinion

I

Defendant initially contends that the trial court erred in admitting evidence of other crimes. Specifically, defendant challenges the trial court’s admission of evidence that he had been charged in an unrelated armed robbery and that he had purchased and used controlled substances on the night of the murder.

Evidence of other crimes may be admitted if relevant to establish any fact material to the prosecution other than the propensity of the defendant to commit a crime. (People v. Illgen (1991), 145 Ill. 2d 353, 365, 583 N.E.2d 515; People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821, cert. denied (1983), 464 U.S. 844, 78 L. Ed. 2d 136, 104 S. Ct. 145; People v. Summers (1990), 202 Ill. App. 3d 1, 17, 559 N.E.2d 1133.) When such evidence is offered, the trial judge must weigh its probative value against its prejudicial effect and may exclude the evidence if its prejudicial effect substantially outweighs its probative value. (Illgen, 145 Ill. 2d at 365; People v. Stewart (1984), 105 Ill. 2d 22, 62, 473 N.E.2d 840, cert. denied (1985), 471 U.S. 1131, 86 L. Ed. 2d 283, 105 S. Ct. 2666.) Evidence is considered relevant if it has the tendency to make the existence of any fact that is of consequence to the determination of an action more or less probable than it would be without the evidence. Illgen, 145 Ill. 2d at 365-66; Stewart, 105 Ill. 2d at 54.

In the case at bar, the evidence reflected that defendant arrived at the police station at about 4:30 p.m. on December 28, 1987, and remained there until he was charged with Hicks’ murder at 1 p.m. on December 29, 1987. Defendant ultimately gave a statement at about 1:40 a.m. on December 30, 1987. This evidence, standing alone, would indicate that defendant had been held at the station for almost 22 hours before he was charged and for over 34 hours before he gave his inculpatory statement. In reconsidering his decision on the motion in limine, the trial judge determined that the prosecution should be permitted to introduce evidence which would establish that defendant was charged with the prior unrelated robbery at 8 p.m. on December 28, 1987, and thereafter remained in custody for that offense. This evidence was properly admitted to rebut the presumption that defendant had been held on the instant charge for over 34 hours before he gave his inculpatory statement. Because defendant’s statement was a pivotal factor in the State’s case, it was appropriate for the jury to be informed of all of the facts which might reflect upon the validity and voluntariness of that statement. Consequently, we hold that the State was properly permitted to present evidence which would refute the claim that defendant’s statement had been coerced during an extended and unjustified period of custodial interrogation.

We also find that defendant was not prejudiced by the admission of evidence that he purchased and used controlled substances on the night of the murder. This evidence was properly admitted to establish defendant’s motive for committing the crime where he stated that he and three others used the proceeds to buy drugs. Moreover, admission of this evidence does not constitute reversible error where there was sufficient competent evidence to establish defendant’s guilt beyond a reasonable doubt. See People v. Chianakas (1983), 114 Ill. App. 3d 496, 505, 448 N.E.2d 620.

The decision of the trial court regarding the admissibility of evidence of other crimes will not be disturbed on review unless it constitutes a clear abuse of discretion. (Illgen, 145 Ill. 2d at 364; People v. Franklin (1990), 135 Ill. 2d 78, 96, 552 N.E.2d 743, cert. denied (1990), 498 U.S. 881, 112 L. Ed. 2d 182, 111 S. Ct. 228; Summers, 202 Ill. App. 3d at 18, 559 N.E.2d at 1143.) We find no abuse of discretion in the instant case.

II

Defendant also asserts that the court erred in denying his motion for a mistrial, which was based upon the testimony that Officer Smulevitz took defendant to police headquarters for “the test.” Defendant argues that the admission of this evidence entitles him to a new trial because the jury could have concluded that this statement referred to a polygraph test.

Although the results of a polygraph test are inadmissible, the admission of evidence that the defendant has taken such a test does not necessarily constitute reversible error. (See People v. Melquist (1962), 26 Ill. 2d 22, 30, 185 N.E.2d 825; People v. Flowers (1958), 14 Ill. 2d 406, 413-14, 152 N.E.2d 838.) The decision of whether to grant a mistrial is within the sound discretion of the trial court, and that determination will not be disturbed unless it appears that there was a manifest necessity for a mistrial or the ends of justice would be affected by continuing the trial. (People v. Alvarez (1989), 186 Ill. App. 3d 541, 549, 542 N.E.2d 737.) It must appear that the jury has been so influenced and prejudiced that it cannot be fair and impartial. (Alvarez, 186 Ill. App. 3d at 549.) The determination of whether jurors have been prejudiced is left to the sound discretion of the trial court. (People v. Martinez (1977), 45 Ill. App. 3d 939, 942, 360 N.E.2d 495.) Further, a determination of prejudice rests not only upon what the jury says, but also upon the nature of the material and upon all of the facts and circumstances in the record. (People v. Rogers (1985), 135 Ill. App. 3d 608, 626, 482 N.E.2d 639.) Moreover, not every situation in which extraneous or unauthorized information reaches the jury results in prejudice. Rogers, 135 Ill. App. 3d at 626.

The record in the instant case reveals that Officer Smulevitz never referred to a polygraph test. The trial court specifically held that his statement could have referred to several examinations, including a blood-alcohol test, a drug test, or fingerprints. The record does not reflect that this comment influenced or prejudiced the jury against the defendant. Thus, there is no indication that admission of this evidence affected the jury in such a way that it could not be fair and impartial in reaching its decision. Based upon the record before us, we hold that defendant is not entitled to a new trial on this basis.

Ill

Defendant next argues that the trial court penalized him for exercising his constitutional right to a trial.

A sentence will be set aside where the record clearly indicates that the trial judge was predisposed to impose a more severe sentence because the defendant exercised his right to a trial rather than entering a guilty plea. People v. Moriarty (1962), 25 Ill. 2d 565, 567, 185 N.E.2d 688.

In sentencing defendant, the trial judge stated, inter alia, “[t]he shooter in this case, the one that actually used the weapon and caused the death is now serving 70 years, based upon a plea. In this case, you saw fit to go to trial.”

Contrary to defendant’s claim, we are not persuaded this comment indicates that the trial court penalized defendant because he did not enter a plea of guilty. In our view, this statement merely reflected the judge’s assessment of defendant’s culpability for the murder of Hicks where each of the seven men present was charged as a participant in the crime. We hold that the trial judge’s comments, when taken in their entirety, reflect the court’s finding that defendant was responsible for the shooting of Hicks and was as culpable as the person who actually pulled the trigger. Consequently, we hold that defendant has not established the trial judge was predisposed to impose a more severe sentence based upon defendant’s decision to exercise his right to a trial.

IV

Defendant also contends that the court erred in denying his motion to quash arrest and to suppress evidence where the State failed to establish valid consent or exigent circumstances to justify the warrantless entry into defendant’s home. This argument is without merit.

On a motion to suppress evidence, the defendant has the burden of proving the search and seizure were unlawful (Ill. Rev. Stat. 1991, ch. 38, par. 114—12(b); People v. Hoskins (1984), 101 Ill. 2d 209, 212, 461 N.E.2d 941), and a trial court’s decision will not be reversed unless it is manifestly erroneous. (People v. Galvin (1989), 127 Ill. 2d 153, 162, 535 N.E.2d 837; Hoskins, 101 Ill. 2d at 212; People v. Chavez (1992), 228 Ill. App. 3d 54, 66, 592 N.E.2d 69.) Whether consent to enter was voluntary is a question for the trier of fact to be determined from the totality of the circumstances and will not be set aside unless it is clearly erroneous. Chavez, 228 Ill. App. 3d at 66-67.

At the hearing on defendant’s motion to suppress, Detective Harris testified that defendant’s sister, Patricia Ford, invited him and the other two officers into the apartment after they had identified themselves and displayed their badges. Although Ms. Ford denied that she had given the detectives permission to enter, the trial judge was obligated to assess the credibility and weight of the testimony and to resolve any conflicts therein. (People v. Clay (1973), 55 Ill. 2d 501, 504, 304 N.E.2d 280.) The judge specifically found the testimony of the officers credible and held that defendant’s sister voluntarily permitted the officers to enter the apartment. Accordingly, the court denied defendant’s motion to suppress. Because we do not believe that this determination was manifestly erroneous, we hold that defendant has not established that his fourth amendment rights were violated.

V

Defendant next asserts that the police lacked probable cause to arrest him. In support of this assertion, defendant contends that he was placed under arrest at approximately 11 a.m. on December 28, 1987, when he was taken to the police station by Detectives Harris, Jones, and DalPonte. The trial court determined, however, that defendant was not placed under arrest until 1 p.m. on December 29, 1987, when he was formally charged with the murder of Hicks.

In determining whether an arrest has taken place, the question is not simply whether the officer’s conduct was reasonable under the circumstances, but whether a reasonable, innocent person in the defendant’s situation would have considered himself free to leave. See People v. Reynolds (1983), 94 Ill. 2d 160, 165, 445 N.E.2d 766; People v. Townes (1982), 91 Ill. 2d 32, 37, 435 N.E.2d 103; People v. Wipfler (1977), 68 Ill. 2d 158, 166, 368 N.E.2d 870.

The mere fact that questioning took place in a police station is not in and of itself sufficient to convert the questioning into an arrest. (People v. Matthews (1990), 205 Ill. App. 3d 371, 402, 562 N.E.2d 1113; People v. Longoria (1983), 117 Ill. App. 3d 241, 250, 452 N.E.2d 1350.) Numerous factors must be considered, including the location of the interrogation, any statement or nonverbal conduct by the police which indicated that the accused was not free to leave, the extent of the knowledge of the police officers and the focus of their investigation, and the intentions of the officers. (Matthews, 205 Ill. App. 3d at 402-03.) A reviewing court must also consider the time, length, mood and mode of the interrogation, the number of police officers present and the presence or absence of friends or family of the accused, the manner in which the person questioned got to the place of interrogation, whether he was allowed to walk within and from the location of interrogation unaccompanied by police, and the age, intelligence, and mental makeup of the accused. Matthews, 205 Ill. App. 3d at 403; People v. Smith (1986), 150 Ill. App. 3d 524, 528, 501 N.E.2d 1010; People v. Savory (1982), 105 Ill. App. 3d 1023, 1028, 435 N.E.2d 226.

The detectives who investigated the murder of Tijuan Hicks testified that defendant voluntarily agreed to accompany them to the police station and to assist them in finding Melvin Jones, who was the focus of their murder investigation. They testified further that defendant was not handcuffed until he was formally arrested at 1 p.m. on December 29, 1987. They stated further that defendant was not hit or physically or mentally coerced into cooperating with them in their efforts to locate Melvin Jones.

The trial judge was obligated to assess the credibility and weight of the testimony and to resolve conflicts therein. (Clay, 55 Ill. 2d at 504.) The judge specifically found the testimony of the officers credible. Based upon the record before us, we find that the evidence supported the trial court’s determination that defendant’s fourth amendment rights were not violated by the investigation and interrogation conducted by the police detectives.

We also find that the police had probable cause to arrest defendant at 1 p.m. on December 29,1987.

The issue of whether probable cause exists is a commonsense, practical question to be determined upon examination of the totality of the circumstances presented. (Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317.) Probable cause exists if a police officer has knowledge of facts which would lead a reasonable person to believe that a crime has been committed and that it was committed by the defendant. (People v. Neal (1985), 111 Ill. 2d 180, 193, 489 N.E.2d 845.) Although an arrest may not be based upon a mere suspicion that the individual may have committed the offense, an arresting officer is not required to have sufficient evidence to convict the accused beyond a reasonable doubt. People v. Moody (1983), 94 Ill. 2d 1, 7, 445 N.E.2d 275; People v. Tisler (1984), 103 Ill. 2d 226, 237, 469 N.E.2d 147.

Defendant argues that prior to his arrest, the police did not have knowledge of sufficient facts to support a reasonable belief that he was responsible for the shooting of Hicks. We disagree.

The record establishes that before defendant was arrested for the instant offense, Detective Harris had spoken with defendant and his sister, Sharolynn Turner, as well as codefendants Fellini Evans, Levy Jackson, Joel Buckingham, and Robert Simmons. Through these conversations, Harris learned that defendant was a friend of Melvin Jones and that Jones had ordered the pizza delivered by Hicks. In addition, defendant admitted that he was at the scene on the night of the murder. Harris learned from Sharolynn Turner that Fellini Evans identified Levy Jackson as the man who shot the gun which killed Hicks. After speaking with Evans, Jackson, Buckingham, and Simmons, Harris confronted defendant. Defendant then acknowledged that he had lied and that he was ready to tell the truth.

This evidence indicates that Detective Harris had knowledge of sufficient facts which would lead a reasonable person to believe that defendant was responsible for the shooting of Hicks. We hold, therefore, that the trial judge correctly denied defendant’s motion to quash arrest.

VI

Defendant argues that the trial court erred in ruling that his arrest on an unrelated charge was not a pretext for holding him on the instant offense. In support of this argument, defendant asserts that the police lacked probable cause to arrest him for an unrelated armed robbery and that this arrest was a subterfuge for holding him until a statement could be extracted from him for the instant offense. This claim is without merit.

The record reveals that Detective Harris contacted Sergeant Steele of the Chicago Housing Authority police squad in an effort to locate Melvin Jones. Steele told Harris that defendant was a suspect in an unrelated armed robbery. Upon further investigation, Harris confirmed that defendant had been named as an offender in that armed robbery. Harris then contacted the victim, and she came to the police station where she positively identified defendant in a lineup as the man who had robbed her. Defendant was subsequently charged with that armed robbery.

Where the victim of the crime supplies the police with the information forming probable cause, there is a presumption that this information is inherently reliable. People v. Mitchell (1984), 123 Ill. App. 3d 868, 874-75, 463 N.E.2d 864.

The evidence in the record established that the police were aware of sufficient facts to support a reasonable belief that defendant had committed the armed robbery. We conclude that the trial judge correctly denied defendant’s motion to quash arrest.

VII

Defendant also contends that the court erred in denying his motion to suppress statements where the State failed to establish that those statements were knowingly, intelligently, and voluntarily made.

The determination of whether a statement was given freely must be based upon the facts and circumstances of each case, and no single fact is dispositive. (Rawlings v. Kentucky (1980), 448 U.S. 98, 106-07, 65 L. Ed. 2d 633, 642-43, 100 S. Ct. 2556, 2562.) The pivotal factors to be considered include whether the accused was advised of his constitutional rights, the presence of intervening circumstances, the temporal proximity of the arrest and the statement, and the purpose and flagrancy of the official misconduct involved in the allegedly illegal detention. (Brown v. Illinois (1975), 422 U.S. 590, 603-04, 45 L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2261-62; People v. Bracy (1986), 152 Ill. App. 3d 566, 571, 504 N.E.2d 764.) Of these factors, temporal proximity is the least determinative factor. (People v. Malloy (1982), 104 Ill. App. 3d 605, 607, 432 N.E.2d 1291.) The credibility of the witnesses regarding the voluntariness of a statement is to be determined by the trial court, and that determination will not be overturned unless it is contrary to the manifest weight of the evidence. People v. Weger (1962), 25 Ill. 2d 370, 374, 185 N.E.2d 183; In re Bizzle (1976), 36 Ill. App. 3d 321, 325, 343 N.E.2d 633.

The trial court found that the testimony of the police officers was credible and concluded that defendant’s statement was given voluntarily and not as a product of coercion or physical abuse. This conclusion is more than amply supported by the evidence in the record. Defendant’s testimony that his statement was coerced through threats and physical abuse was directly controverted by the testimony of Officer Jones, Detective Harris, Sergeant Steele, and Detective DalPonte. The police officers also testified that defendant was advised of his constitutional rights on at least three different occasions during his interrogation and prior to his court-reported statement. According to the officers, defendant stated that he understood each of his rights as it was read to him. Defendant also agreed to give a court-reported statement after he had been advised of his rights and had indicated that he understood them. Based upon this evidence, we hold the trial court correctly found that defendant’s statements were voluntary and admissible.

VIII

Finally, defendant argues that the sentences imposed for his convictions were excessive.

In considering the propriety of punishment, a court of review must give great weight to the judgment of the trial court. (People v. La Pointe (1981), 88 Ill. 2d 482, 492-93, 431 N.E.2d 344; People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882; People v. Bergman (1984), 121 Ill. App. 3d 100, 110, 458 N.E.2d 1370.) 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. (Perruquet, 68 Ill. 2d at 153.) Additionally, the trial judge is normally in a better position to determine the punishment to be imposed than is a court of review. Perruquet, 68 Ill. 2d at 154; People v. Butler (1976), 64 Ill. 2d 485, 490, 356 N.E.2d 330.

A reasoned judgment as to a proper sentence must be based upon the particular facts and circumstances of each individual case. (Perruquet, 68 Ill. 2d at 154; People v. Bolyard (1975), 61 Ill. 2d 583, 589, 338 N.E.2d 168.) Such a judgment depends upon many factors, including the gravity of the offense and the circumstances of commission, the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, age, and criminal history. (Perruquet, 68 Ill. 2d at 154; People v. Duncan (1981), 97 Ill. App. 3d 896, 899, 424 N.E.2d 67.) The sentencing judge is charged with the difficult task of fashioning a sentence which would strike the appropriate balance between protection of society and rehabilitation of the offender. (People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541; Bergman, 121 Ill. App. 3d at 109.) Yet, the objective of restoring the offender to useful citizenship is to be accorded no greater consideration than that which establishes the seriousness of the offense. People v. Waud (1977), 69 Ill. 2d 588, 596, 373 N.E.2d 1, 4; Bergman, 121 Ill. App. 3d at 109.

Defendant contends that his sentences were excessive because he was only 17 years old when the offenses were committed, did not have an extensive criminal background, and had great potential for rehabilitation.

The record in the instant case reflects that in sentencing defendant, the trial judge stated that he had considered the evidence presented at trial, the information contained in the presentence report, the factors presented in aggravation and in mitigation, the age and criminal history of the defendant, defendant’s participation in the planning and consummation of the offense, as well as the seriousness of the crime.

Thus, the record indicates that the sentencing judge was fully aware of defendant’s age, his prior criminal background, and his potential for rehabilitation. Yet, these considerations had to be balanced against the seriousness of the offenses for which defendant had been convicted. Upon review of the record, we hold that the trial judge properly considered all relevant factors, including the rehabilitative potential of the defendant, in making his sentencing decisions. The trial judge sentenced defendant to the maximum term permissible for both offenses. These sentences are not excessive when considered in light of the nature of the crimes with which defendant had been charged. We conclude that the penalties imposed do not reflect an abuse of the trial court’s discretion. People v. Younger (1986), 112 Ill. 2d 422, 428, 494 N.E.2d 145.

For the foregoing reasons, the judgments of the circuit court of Cook County are affirmed.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.

       Justice McMorrow participated in the disposition of the case prior to her becoming a member of the supreme court of Illinois.


author: JUSTICE MURRAY

text:
    ROYAL IMPERIAL GROUP, INC., Plaintiff-Appellant, v. JOSEPH BLUMBERG AND ASSOCIATES, INC., Defendant-Appellee.
    First District (5th Division)
    No. 1 — 92—1266
    Opinion filed December 11, 1992.

      Alan O. Amos & Associates, P.C., of Chicago (Alan O. Amos and Marilyn Martin, of counsel), for appellant.
    Tribler & Orpett, P.C., of Chicago (Mitchell A. Orpett and Steven R. Mc-Mannon, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff, Royal Imperial Group, Inc. (Royal Imperial), filed a four-count amended complaint against defendant Joseph Blumberg & Associates, Inc. (Blumberg). The trial court dismissed count IV of the amended complaint. Royal Imperial appeals from that dismissal.

On December 31, 1990, Royal Imperial filed a one-count breach of contract complaint against the defendant. The complaint alleged that Royal Imperial, an Illinois corporation engaged in the business of operating retirement residences, nursing homes, and other health facilities, had for some years engaged Blumberg, an Illinois corporation engaged in the business of insurance brokerage, to obtain insurance coverage on plaintiff’s retirement apartments and health care facilities. Royal Imperial alleged that defendant held itself out and represented itself to the plaintiff to be an experienced insurance broker able to obtain insurance coverage on retirement apartments and health care facilities operated by plaintiff at a cost to plaintiff equal to or less than available to plaintiff through other insurance brokers. Royal Imperial asserted that in reliance upon Blumberg’s representations, plaintiff did engage defendant to obtain its insurance coverage. More specifically, Royal Imperial asserted that in mid-1989 it engaged defendant to procure for it insurance coverage for the annual period commencing December 1, 1989, and ending November 30, 1990. Further, in late November 1989 Blumberg advised Royal Imperial concerning the cost of specified insurance and in December of 1989 Royal Imperial learned that similar coverage with comparable carriers was available at premiums substantially less than those obtained by Blumberg. Royal Imperial then directed defendant to terminate the coverage placed by it effective December 31, 1989, and requested a credit against the annual premiums equal to the unearned portion.

Blumberg’s motion to dismiss this original complaint was denied. Subsequently, Royal Imperial filed an amended complaint adding additional counts for breach of fiduciary duty, negligent misrepresentation and consumer fraud. Count IV alleged that Blumberg provides a service governed by the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1973, ch. 121½, par. 261 et seq.) and that Royal Imperial, as a purchaser of insurance from Blumberg, is a consumer protected by the Consumer Fraud Act. Count IV further asserted that Blumberg’s misrepresentation as to the lowest possible cost of insurance was made with the "intent that Royal Imperial would rely on said misrepresentation in procuring insurance through defendant’s brokerage, that Royal Imperial would have purchased lower cost insurance through defendant’s brokerage had plaintiff been made aware of its availability, and that Blumberg’s misrepresentation as to the lowest possible cost of insurance and failure to advise Royal Imperial of less expensive comparable insurance is an aspect of the insurance trade affecting consumers generally in Illinois.

On August 21, 1991, Blumberg filed an answer to the amended complaint. On December 11, 1991, count III of the amended complaint was stricken and dismissed by an agreed order. On December 24, 1991, Blumberg filed a motion for leave to withdraw answer to count IV of the amended complaint and to file motion to dismiss in lieu thereof. Blumberg’s motion alleged that the Consumer Fraud Act is not intended to address purely private wrongs and that the legislature’s amendment of the Act effective January 1, 1990, to state that proof of public injury or effect on consumers is not required to state a claim should not be applied retroactively to this case. On January 10, 1992, the trial court granted Blumberg leave to withdraw its answer to count IV and to seek dismissal of that count.

Royal Imperial filed a memorandum in opposition to defendant’s motion to dismiss, asserting that the amendment should be regarded as a legislative clarification or interpretation of the original statute.

On March 11, 1992, the trial court sustained Blumberg’s motion and dismissed count IV of the amended complaint. Royal Imperial filed this timely appeal. Jurisdiction is vested in this court by virtue of the trial court’s finding that there was no just reason to delay enforcement or appeal of the order of dismissal. See 134 Ill. 2d R. 304(a).

The sole issue presented for review is whether the Illinois legislature’s 1990 amendment of the Consumer Fraud Act merely clarified the intent of the Act and may be applied retroactively in the instant case or whether the amendment must be applied prospectively.

On January 1, 1990, an amendment to the Illinois Consumer Fraud Act became effective which provided: “Proof of a public injury, a pattern, or an effect on consumers generally shall not be required.” (Ill. Rev. Stat. 1991, ch. 121½, par. 270a(a).) The amendment, House Bill 612, was passed by the legislature prior to July 1, 1989, and was signed by Governor Thompson on September 7, 1989. Since the amendment was passed prior to July 1, 1989, and did not provide specifically for an effective date, it became effective on January 1, 1990. See Ill. Rev. Stat. 1989, ch. 1, par. 1201; Pub. Act 86 — 801, eff. Jan. 1, 1990 (House Bill 612); Ill. Rev. Stat. 1989, ch. 121½, par. 270a(a).

The crucial date for determining the applicability of a statute is not when the rights are asserted by filing a complaint, but rather when the cause of action accrues. (Zielnik v. Loyal Order of Moose, Lodge No. 265 (1988), 174 Ill. App. 3d 409, 411, 528 N.E.2d 384, 386.) The alleged wrongdoing in this case occurred during November or December 1989, prior to January 1, 1990, the effective date of the amendment. The amendment does not specify whether it is to be applied retroactively to a cause of action which arose before January 1, 1990.

Royal Imperial argues that the 1990 amendment merely clarified existing law. Royal Imperial cites various conflicting opinions by the Illinois Appellate Court on this issue. Blumberg argues that there was a complete change in the law and that the amendment should not be applied retroactively.

For the following reasons, we must reverse the decision of the trial court.

Generally, a statute will be deemed to operate prospectively and will not be given a retroactive effect unless the language of the statute is clear in requiring it. (Board of Trustees of Community College District No. 508 v. Burris (1987), 118 Ill. 2d 465, 476, 515 N.E.2d 1244, 1249.) However, this rule is not without exceptions. The presumption of prospectivity can be rebutted by demonstrating that the amendment merely affects procedural matters. (Ores v. Kennedy (1991), 218 Ill. App. 3d 866, 871, 578 N.E.2d 1139.) “A procedural change in law generally prescribes methods of enforcing rights and embraces pleading, evidence and practice, i.e., legal rules which direct the means to bring parties into court or the manner in which the court process shall proceed.” (Ores, 218 Ill. App. 3d at 871.) A substantive change in law establishes, creates, defines or regulates rights and practice. (Ores, 218 Ill. App. 3d at 871.) A rule must be considered substantive where it “makes one a party to a suit,” whereas, a rule must be considered procedural where it merely facilitates suit against a party. (Rivard v. Chicago Fire Fighters Union, Local No. 2 (1988), 122 Ill. 2d 303, 311, 522 N.E.2d 1195.) When a change of law affects procedural rights it will be given retroactive effect absent a savings clause as to existing litigation. (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 415 N.E.2d 1034.) However, changes in procedure will not be applied retrospectively where a vested constitutionally protected right will be deprived by such application. Maiter, 82 Ill. 2d at 390-91.

Another exception to the presumption favoring only prospective application of an amendatory act exists when an amendment merely clarifies existing law. In that instance, the amendment will be applied retroactively. Falato v. Teachers’ Retirement Systems (1991), 209 Ill. App. 3d 419, 424, 568 N.E.2d 233, 237.

It is clear that prior to the amendment, Illinois courts have been split over whether a violation of the Consumer Fraud Act required proof of public injury or injury to consumers generally. In Duncavage v. Allen (1986), 147 Ill. App. 3d 88, 497 N.E.2d 433, the court held that a victim of a violation of the Illinois Consumer Fraud Act did not have to assert a public injury. In Beaton & Associates, Ltd. v. Joslyn Manufacturing & Supply Co. (1987), 159 Ill. App. 3d 834, 512 N.E.2d 1286, the court held that the Consumer Fraud Act was not available to redress a purely private wrong. The court held that liability under the Act is not completely open-ended, but rather the Act was “ ‘intended to reach practices of the type which affect consumers generally and is not available *** to redress a purely private wrong.’ ” Beaton & Associates, 159 Ill. App. 3d at 847, 512 N.E.2d at 1293, quoting Frahm v. Urkovich (1983), 113 Ill. App. 3d 580, 585-86, 447 N.E.2d 1007, 1011; see also I K Corp. v. One Financial Place Partnership (1990), 200 Ill. App. 3d 802, 558 N.E.2d 161; Blake v. State Farm Mutual Automobile Insurance Co. (1988), 168 Ill. App. 3d 918, 523 N.E.2d 85; Century Universal Enterprises, Inc. v. Triana Development Corp. (1987), 158 Ill. App. 3d 182, 510 N.E.2d 1260.

In an Illinois Appellate Court, Fifth District, case, Sullivan’s Wholesale Drug Co. v. Faryl’s Pharmacy, Inc. (1991), 214 Ill. App. 3d 1073, 573 N.E.2d 1370, the defendants argued that summary judgment was properly granted in their favor because there was no showing that their conduct resulted in public injury. The court held the argument without merit, stating:

“No allegation of public injury is required to recover money damages under the Consumer Fraud Act. [Citations.] This was so before and it has now been made explicit by the legislature. See Ill. Rev. Stat. 1989, ch. 121½, par. 270a(a) ***.” (Sullivan’s Wholesale Drug Co., 214 Ill. App. 3d at 1085-86.)

In an Illinois Appellate Court, Second District, case, the court rejected the plaintiff’s argument that it could only allege a consumer fraud count after the 1990 amendment “eliminated the requirement” of a showing of public injury. (Trans World Airlines, Inc. v. Martin Automatic, Inc. (1991), 215 Ill. App. 3d 622, 628, 575 N.E.2d 592.) The court stated that “it has long been recognized by Illinois courts that no allegation of public injury was required in actions under the Act.” Trans World Airlines, Inc., 215 Ill. App. 3d at 628.

There has also been a split of authority in Federal cases as to whether proof of public injury is necessary. See Jays Foods, Inc. v. Frito Lay, Inc. (N.D. Ill. 1987), 664 F. Supp. 364, 368 (requiring consumer injury); Madruff v. Life Insurance Co. (N.D. Ill. 1987), 657 F. Supp. 437, 440 (requiring consumer injury); Hometown Savings & Loan Association v. Moseley Securities Corp. (N.D. Ill. 1988), 703 F. Supp. 723, 726 (not requiring consumer injury); Haraco, Inc. v. American National Bank & Trust Co. (N.D. Ill. 1986), 647 F. Supp. 1026, 1034 (not requiring consumer injury).

The Federal courts have also reviewed the issue of whether the amendment clarified rather than changed the law. In Uniroyal Goodrich Tire Co. v. Mutual Trading Corp. (N.D. Ill. 1990), 749 F. Supp. 869, 878, the district court stated that the amendment “might suggest that no such [public injury] requirement has ever been intended.” In Resolution Trust Corp. v. Krantz (N.D. Ill. 1991), 757 F. Supp. 915, the district court stated:

“We find that there is enough legislative history on the amendment of the Act to conclude that the Illinois legislature did intend that the amendment be applied retroactively, i.e., that the change in the law is not substantive but a mere clarification. The only relevant portion of the legislative history reads:
‘House Bill 612 provides that the proof of public injury is not required in order to collect damages under the Act. This legislation would clarify that there is no such requirement in order for a plaintiff to be protected under this Act.’
86th General Assembly House Debate on House Bill 612 (May 23, 1989) (statement of Rep. Terzich) at 135-136. The legislative history is quite clear — the amendment clarified existing law, and therefore can be retroactively applied.” (Emphasis added.) (Krantz, 757 F. Supp. at 922-23.)

Recently in Hardin, Rodriguez & Boivin Anesthesiologists, Ltd. v. Paradigm Insurance Co. (7th Cir. 1992) 962 F.2d 628, the court stated that it was of the opinion that the legislature merely intended to clarify the law, that the court believed the Illinois Supreme Court would reach the same conclusion, and that, accordingly, public injury was not a required showing under the Act even prior to the amendment. Hardin, 962 F. 2d at 637-38.

We acknowledge the split of authority in both State and Federal courts as to whether the Consumer Fraud Act required proof of a public injury prior to the 1990 amendment. However, the Illinois Appellate Court recently addressed the issue of whether the 1990 amendment to the Consumer Fraud Act should be applied retroactively. Rubin v. Marshall Field & Co. (1992), 232 Ill. App. 3d 522, 597 N.E.2d 688, alleged a violation of the Consumer Fraud Act involving a single act which took place in 1986. The court held that the plaintiff had overcome the presumption that the amendment to the Consumer Fraud Act was intended to change the statute by showing the conflict in the courts. The court noted that some decisions of the appellate court indicate that plaintiff must show a pattern of deceptive practices to succeed on a claim under the Consumer Fraud Act while other decisions find proof of a single act sufficient to support a claim under the Act. The court found: “The amendment of the Consumer Fraud Act clarifies that the legislature intended to provide relief under the Act even for plaintiffs who can prove only a single deceptive act.” Rubin, 232 Ill. App. 3d at 532.

The Rubin court quoted the following from the Illinois Supreme Court’s decision in Bruni v. Department of Registration & Education (1974), 59 Ill. 2d 6, 319 N.E.2d 37:

“ ‘The principle has been established by this court that in ascertaining the intent of the General Assembly in the construction of a statute where no specific provision appears to aid such construction recourse may be had to the language of subsequent acts of the same law-making body. [Citation.] And these subsequent acts of the General Assembly may be amendments to the act being construed. [Citation.] *** [A] statutory amendment creates a presumption that it was intended to change the law ***. This presumption is not conclusive, and a subsequent amendment does not necessarily indicate an intention to change the law as it previously existed. ***
* * *
The weight to be given a subsequent amendment in the construction of a statute and whether it will be held to be a manifestation of an intent to change the law as it previously existed or only a clarification of its terms, of course, must depend upon the circumstances involved.’ ” (Rubin, 232 Ill. App. 3d at 531-32, quoting Bruni, 59 Ill. 2d at 11-12, 319 N.E.2d at 39-40.)

The Rubin court also cited People v. Badoud (1988), 122 Ill. 2d 50, 56, 521 N.E.2d 884, 887. In Badoud the court found a subsequent amendment to the statute the court was construing “extremely relevant.” The court stated:

“The reason is that an amendment to a statute is an appropriate source for determining the original legislative intent of the statute. [Citations.] Where, as here, an amendment is enacted soon after controversies have arisen regarding the statute amended, it is logical and reasonable to regard the amendment as a legislative interpretation of the original statute.” Badoud, 122 Ill. 2d at 56, 521 N.E.2d at 887.

In light of the court’s holding in Rubin v. Marshall Field & Co. (1992), 232 Ill. App. 3d 522, 597 N.E.2d 688, that the 1990 amendment to the Consumer Fraud Act merely clarified rather than changed the Act, we must find that proof of a public injury is not required to state a cause of action under the Consumer Fraud Act in this case. Accordingly, for all the reasons set forth above we reverse the decision of the trial court dismissing count IV of the amended complaint. We remand the matter to the trial court with directions to reinstate count IV of the amended complaint.

Reversed and remanded with directions.

LORENZ and GORDON, JJ., concur.

       Justice Lorenz concurred in this opinion prior to his retirement.


author: PRESIDING JUSTICE HARTMAN

text:
    WILLIAM M. PHELAN et al., Petitioners-Appellants, v. COUNTY OFFICERS ELECTORAL BOARD et al., Respondents-Appellees.
    First District (2nd Division)
    Nos. 1 — 92—2880, 1—92—2906 cons.
    Opinion filed December 15, 1992.

      Phelan, Doyle, Bolotin & Burke, Ltd., of Chicago, for appellant William M. Phelan.
    Michael W. Rathsack, of Chicago, for appellant Lester Bonaguro.
    Bledsoe & Touhy, of Chicago (Michael N. Bledsoe, of counsel), for appellee Arthur L. Janura.
    Michael E. Lavelle, of Oak Park, for appellee Edwin A. Gausselin.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Two Republican judicial candidates claim opposing Democratic judicial candidates were not eligible to be placed on the November 3, 1992, general election ballot because they were nominated by party resolution to fill vacancies in nomination after the primary, rather than at the primary election or by petition. The vacancies were caused by the absence of Democratic primary candidates in these races. The circuit court affirmed the County Officers Electoral Board (Electoral Board) decision to allow the Democratic candidates’ names to be placed on the ballot, from which review is sought.

The issues on appeal include whether (1) the Electoral Board had jurisdiction to rule on the constitutionality of a statute; (2) the circuit court had original jurisdiction to rule on the constitutionality of a statute; (3) article VI, section 12(a), of the 1970 Illinois Constitution (section 12(a)) bars a political party from filling vacancies in nomination for judicial office by party resolution pursuant to section 7 — 61 of the Election Code (Ill. Rev. Stat. 1991, ch. 46, par. 7 — 61 (amended 1992) (section 7 — 61)); and (4) a political party can fill vacancies in nomination for judicial office under section 7 — 8(g) (Ill. Rev. Stat. 1991, ch. 46, par. 7 — 8(g) (amended 1992) (section 7 — 8(g))) and section 7 — 61 of the Election Code.

This case was orally argued and taken under advisement four days prior to the general election; we take judicial notice that the Republican candidates, William Phelan and Lester Bonaguro, were elected on November 3, 1992. The issues raised with respect to the application of section 7 — 61 are longstanding and have not been resolved by the courts or the legislature, as will be noted later in this opinion. Because the issues involve public concerns, an authoritative guide for future controversies is needed, and there is a likelihood of recurrence, we deem this case to fall within the public interest exception to mootness. (Kohan v. Rimland School for Autistic Children (1981), 102 Ill. App. 3d 524, 527, 430 N.E.2d 139 (and cases therein collected).) We examine the issues on their merits.

William Phelan, a Republican candidate in the March 17, 1992, primary election for circuit judge for the 15th judicial subcircuit, judgeship A, Cook County, was elected as the Republican nominee to run for that office in the general election to be held November 3, 1992. No Democratic candidate ran in that primary election, and none was nominated by petition. Following the primary election, on May 14, 1992, the Democratic party nominated Edwin Gausselin as its candidate for that office. Gausselin was nominated by party resolution, which was purportedly authorized by section 7 — 61.

Concurrently, Lester Bonaguro, a Republican candidate in the primary election for circuit judge for the 13th judicial subcircuit, judgeship B, Cook County, was elected as the Republican nominee to run for that office in the general election to be held November 3, 1992. As in Phelan’s case, no Democratic candidate ran in that primary contest, and none was nominated by petition. Following the primary election, on May 14, 1992, the Democratic party similarly nominated, by party resolution, Arthur Janura as its candidate for that office.

In separate proceedings, Phelan and Bonaguro filed objections to the respective Democratic nominees’ placement on the general election ballot with the State Board of Elections. Both contended that the nomination was unconstitutional because section 12(a) requires candidates for judicial office to be nominated at primary elections or by petition, not by party resolution. In the alternative, Phelan alone claimed the party resolution filed for Gausselin failed to comply with section 7 — 61. .

The State Board of Elections transferred both proceedings to the Electoral Board, pursuant to section 10 — 8 of the Election Code (Ill. Rev. Stat. 1991, ch. 46, par. 10 — 8). The Electoral Board, ruling it was without jurisdiction to determine the constitutionality of the Election Code, presumed that it was constitutional, overruled both Phelan’s and Bonaguro’s objections, and ordered the names of Gausselin and Janura to be printed on the ballot for the general election to be held November 3,1992.

Phelan and Bonaguro appealed their respective Electoral Board decisions to the circuit court of Cook County pursuant to section 10— 10.1 of the Election Code (Ill. Rev. Stat. 1991, ch. 46, par. 10 — 10.1). After hearing joint oral argument, the circuit court affirmed both Electoral Board decisions. Finding it had jurisdiction to decide the constitutional issue, the circuit court upheld the constitutionality of the Election Code, holding that section 12(a) does not bar a political party from filling vacancies in nomination under section 7 — 61. Phelan and Bonaguro each appeal. The appeals were consolidated.

I

Appellee Janura initially contends that the Electoral Board was without jurisdiction to rule on the constitutionality of the statute.

Janura correctly notes that an electoral board’s function is limited to determining whether a challenged nominating petition complies with the provisions of the Election Code. (Wiseman v. Elward (1972), 5 Ill. App. 3d 249, 257, 283 N.E.2d 282 (Wiseman); see Troutman v. Keys (1987), 156 Ill. App. 3d 247, 252, 509 N.E.2d 453 (Troutman).) Moreover, an electoral board is without authority to decide constitutional issues. (See Wiseman, 5 Ill. App. 3d at 257.) Here the Electoral Board ruled it must accept the Election Code as constitutional; it then overruled Bonaguro’s objections that the statute was unconstitutional and ordered Janura’s name printed on the general election ballot. Under these circumstances, this argument is without merit. The Electoral Board did not decide the constitutionality of the Election Code, but merely accepted it as constitutional, and did not exceed its jurisdiction.

II

Janura next argues that the circuit court lacked jurisdiction to rule on the constitutionality of the statute on administrative review, but was required to limit its review to the Electoral Board’s ruling that it lacked jurisdiction to decide the constitutionality of the statute.

The circuit court held that, pursuant to Troutman, it possessed the jurisdiction to rule on the constitutionality of the State statute. In Troutman, we held that “where the administrative agency’s decision gives rise to pleaded issues which could not have been considered by the agency, but the record presented to the circuit court permits a fair determination of such issues, then the scope of review by a court of original jurisdiction extends to all questions of law and fact presented under the pleadings by that record.” Troutman, 156 Ill. App. 3d at 253.

The circuit court’s ruling here that it possessed original jurisdiction to decide the constitutional issue was proper.

III

Phelan and Bonaguro (jointly hereinafter appellants) contend that a political party cannot bypass the constitutionally mandated primary election process by delaying the nomination of a judicial candidate until after the primary election. Appellee Gausselin, in response, correctly points out that there is no evidence in the record to support the charge that the Democratic party delayed the nominations at issue in order to bypass the primary election. For that reason, the issue is better characterized as whether section 12(a) bars a political party from filling vacancies in nomination for judicial office by party resolution pursuant to section 7 — 61.

This issue was raised but not decided in Thurston v. State Board of Elections (1979), 76 Ill. 2d 385, 387, 392 N.E.2d 1349 (Thurston). There the supreme court ruled that laches applied because this issue had not been raised until after the' general election. (Thurston, 76 Ill. 2d at 391.) We shall return to Thurston later in this opinion.

Section 12(a) provides:

“Supreme, Appellate and Circuit Judges shall be nominated at primary elections or by petition. Judges shall be elected at general or judicial elections as the General Assembly shall provide by law. A person eligible for the office of Judge may cause his name to appear on the ballot as a candidate for Judge at the primary and at the general or judicial elections by submitting petitions. The General Assembly shall prescribe by law the requirements for petitions.” (Ill. Const. 1970, art. VI, § 12(a).)

Appellants argue that section 12(a) unambiguously requires that nomination to judicial office occur only at primary elections or by petition, and therefore not by party resolution as authorized in section 7 — 61.

Appellees Gausselin and Janura (jointly hereinafter appellees) maintain that the language of section 12(a) encompasses an entire primary election process beyond the election itself, which necessarily includes authorization for political parties to fill vacancies in nomination for judicial candidates. Appellees assert that a primary election is a compulsory process by which individual party members select the party candidates who will run in the general election; it is only when a vacancy in nomination exists after the primary election that the party, acting as an entity, may fill it. Appellees cite Progressive Party v. Flynn (1948), 401 Ill. 573, 581-82, 82 N.E.2d 476, for support.

Section 7 — 61 provides in part that vacancies in nomination “shall be filled by the managing committee *** of the respective political party for the territorial area in which such vacancy occurs.” (Ill. Rev. Stat. 1991, ch. 46, par. 7 — 61.) Section 7 — 61 also provides that such a vacancy occurs by reason of the death of a nominee, the declination of nomination of vacancy, or “for other reasons.” Appellants maintain that section 7 — 61 applies to all vacancies in nomination except judicial. They note that section 7 — 61, and section 7 — 7 (Ill. Rev. Stat. 1991, ch. 46, par. 7 — 7 (amended 1992)), which authorizes the committees referred to in section 7 — 61, describe all possible political districts for legislative positions, but make no reference to judicial committees. Appellants acknowledge that section 7 — 8(g) creates a circuit court committee, but claim the Election Code fails to give it any power or duties. Appellants theorize that the legislature declined to apply section 7 — 61 to judicial vacancies in nomination because to do so would have been unconstitutional.

Appellees counter that section 7 — 61 does not violate section 12(a). They note that section 7 — 1 (Ill. Rev. Stat. 1991, ch. 46, par. 7 — 1) explicitly states that article 7 of the Election Code, which includes section 7 — 61, applies to the nomination of judicial candidates.

Each side here claims that the constitutional history of section 12(a) supports their respective arguments. Appellants insist that the framers intended to remove the power to nominate candidates for judicial office from political party bosses and give it to the electorate. Appellees urge that, in adopting section 12(a), the framers and the voters understood it to embody the entire primary election process, including political party power to fill vacancies in nomination for judicial candidates.

The constitutional history of section 12(a) reveals that the 1870 Illinois Constitution, as amended by the 1962 judicial article, provided for the nomination of judges by “party convention or primary.” (Ill. Const. 1870, art. VI (1964), §10 (eff. Jan. 1, 1964); 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2674 (Proceedings).) During the 1970 Constitutional Convention (Convention), a judiciary committee majority recommended, in general, that judges be appointed. A minority proposal retained judicial elections, but recommended that all judges be “nominated by party primary elections.” (6 Proceedings 1069.) The minority proposal recommended primary elections in place of party conventions to remove the criticism that “the convention method vests too much power in the hands of party leaders and deprives the voters of any meaningful voice in choosing their judges.” (6 Proceedings 1091.) It explained: “By this change any person who wishes to run as a candidate may do so, whether or not he receives party endorsement or support, provided only that he fulfills the minimum petition signature requirement” to be placed on the primary ballot; thereby “[t]he field of potential candidates is thus opened up, and the electorate is given a choice among all the candidates who seek judicial office.” 6 Proceedings 1091-92.

On motion by Delegate (later Appellate Court Justice) John M. Karns, presented on the Convention floor, the minority proposal was amended to provide for the nomination of judges “in primaries or by petition,” which passed. (3 Proceedings 2373-74.) The amended minority proposal, therefore, adopted the minority’s recommendation of nomination at primary elections, and also introduced the concept of nomination by petition to accommodate independent candidates. The debates also reveal that the delegates expressly understood this proposal to preclude nomination by party convention. (3 Proceedings 2373-75; 5 Proceedings 3967-69; see also 7 Proceedings 2761.) After additional amendments, this proposal became known as Proposition 2A.

The Convention also adopted a separate proposition, Proposition 2B, which provided for the appointment of judges. Both propositions were submitted to the electorate in the 1970 constitutional referendum. (7 Proceedings 2758-63.) All registered voters were provided with a brief explanation of Proposition 2A (7 Proceedings 2667):

“Under Article VI, Sections 10 and 11, of the 1870 Constitution, all judges are nominated at political party conventions and
elected at the general elections. ***
* * *
If, at the December 15, 1970, special election, the voters approve [Proposition] #2A, candidates for judge will continue to be elected, but the method of nomination will be changed. The existing ‘party convention’ method for the nomination of judges will be replaced by primary elections or by the method of petition.” (7 Proceedings 2761.)

The voters approved Proposition 2A. As a consequence, the 1970 Constitution presently provides for the election of judges “nominated at primary elections or by petition.” Ill. Const. 1970, art. VI, § 12(a).

From the foregoing it is clear that both the framers and the electorate intended to remove the power to nominate candidates for judicial office from political parties and give it to the electorate at a primary election, forbidding nomination of judicial candidates by party convention. (7 Proceedings 2761; 3 Proceedings 2373-75; 5 Proceedings 3967-69.) A party’s primary election was to be made accessible to all judicial candidates interested. 6 Proceedings 1091-92; 3 Proceedings 2373-75.

The question in the present case, however, is whether the convention intended to prevent political parties from filling vacancies in nomination after the primary election. Nothing in the constitutional history demonstrates that the delegates ever considered or discussed specifically the filling of vacancies in nomination.

Appellees claim that the framers understood section 12(a) to embody the entire primary election process, not just the primary election day, which necessarily includes the right of political parties to fill vacancies in nomination for judicial candidates. In support of their argument appellees claim that, in adopting section 12(a), the delegates and the voters understood it to encompass the plenary primary election mechanism, relying upon a segment of Convention floor debate supporting the proposition that judicial candidates are to appear on the general election ballot by the same method as other public officials, such as the governor, legislators, county recorders, and others. (4 Proceedings 2520-21.) We are of the opinion that this debate language shows the framers believed the primary election of judicial candidates would be conducted in the same manner as primary elections for governor and other local officials, implicitly including the right of political parties to fill vacancies in nomination for judicial office by resolution. See also 5 Proceedings 3967-69.

Identifying practical concerns, appellees note that if appellants’ interpretation of section 12(a) prevails, then no vacancy in nomination for judicial office could be filled except by special primary election. They claim that the hundreds of party judicial candidates and the limited time available between primary and general elections, if coupled with a requirement that party vacancies in nomination be filled only by special elections, would create not only a nightmare for election officials, but an impossibility. This argument has merit. Without a practical means of permitting political parties to fill vacancies in nomination, the electorate is ultimately deprived of choice.

Appellees also maintain that appellants’ restrictive interpretation of section 12(a) violates the first and fourteenth amendments of the United States Constitution and must therefore be rejected. They correctly note that the United States Supreme Court has held that restrictions on access to the ballot burden two fundamental rights, “ ‘the right of individuals to associate for the advancement of political beliefs,’ ” and the “ ‘right of qualified voters’ ” to cast their votes effectively, and thus the State must have a compelling interest to regulate access to the ballot and then may only use the least restrictive means available. (Illinois State Board of Elections v. Socialist Workers Party (1979), 440 U.S. 173, 183-85, 59 L. Ed. 2d 230, 240-42, 99 S. Ct. 983, 990, quoting Williams v. Rhodes (1968), 393 U.S. 23, 30, 21 L. Ed. 2d 24, 31, 89 S. Ct. 5, 10.) Appellants’ interpretation of section 12(a), if accepted, would bar political parties from filling vacancies in nomination, impacting the two fundamental rights mentioned here.

Countervailing arguments advanced by appellants cite two sources that interpret section 12(a) in support of their position. They note that the State Board of Elections, the State agency empowered to administer election laws and certify candidates (Ill. Const. 1970, art. Ill, §5; Ill. Rev. Stat. 1991, ch. 46, par. 1A — 1), has specifically declared that “[wjhere an established political party *** fail[s] to nominate a candidate for any office provided for in Article 7 of ‘The Election Code,’ this vacancy in nomination may be filled by the proper party committee of the political party, except candidates for Judicial office.” (26 Ill. Adm. Code §207.10 (1992).) Appellees correctly rejoin that this Administrative Code section directly contradicts section 7 — 61 of the Election Code, noting that an administrative agency rule that contradicts a statute is void. See People ex rel. Polen v. Hoehler (1950), 405 Ill. 322, 328, 90 N.E.2d 729.

Appellants further seek support from an Illinois Attorney General opinion to the effect that section 7 — 61 cannot be used to fill vacancies in nomination for judicial office. (1972 Ill. Att’y Gen. Op. 96.) The opinion explained that the 1870 Illinois Constitution provided that judges shall be nominated “by party convention or primary” (Ill. Const. 1870, art. VI (1964), §10), whereas, in contrast, the 1970 Illinois Constitution provides that judges shall be nominated “at primary elections or by petition” (Ill. Const. 1970, art. VI, § 12(a)). Consequently, the Attorney General concluded that “Judges are not to be nominated by party conventions.” (1972 Ill. Att’y Gen. Op. at 99.) The opinion concludes: “Filling vacancies in nomination by party committees (Ill. Rev. Stat. 1971, ch. 46, par. 7 — 61) is comparable to nomination by convention, and also prohibited.” 1972 Ill. Att’y Gen. Op. at 99.

Several principles of constitutional interpretation come into focus here. First, a constitution must have a reasonable and practical interpretation; narrow technical reasoning should not be applied. (Wolfson v. Avery (1955), 6 Ill. 2d 78, 94, 126 N.E.2d 701; People ex rel. Rogerson v. Crawley (1916), 274 Ill. 139, 142-43, 113 N.E. 119.) Second, constitutional language must be given its plain and commonly understood meaning unless it is clearly evident that a contrary meaning was intended. (Coalition for Political Honesty v. State Board of Elections (1976), 65 Ill. 2d 453, 464, 359 N.E.2d 138.) Third, a constitutional provision may be examined in light of the history and condition of the times and the particular problems which the convention sought to address by incorporating such provision into the constitution. (Client Follow-up Co. v. Hynes (1979), 75 Ill. 2d 208, 216, 390 N.E.2d 847.) Last, a court will presume that the legislature intended to enact a constitutional statute; accordingly, a court will construe a statute as constitutional if it is reasonable. Gill v. Miller (1983), 94 Ill. 2d 52, 56, 445 N.E.2d 330.

In ruling on this issue, the circuit court held that interpreting section 12(a) to forbid a political party from filling vacancies in nomination would be “a restrictive interpretation” inconsistent with principles of constitutional interpretation. We agree and affirm.

IV

Phelan submits, in the alternative, that appellee Gausselin was not nominated in compliance with the section 7 — 61 requirement that party representatives participating in the resolution to nominate be from the territorial area of the judicial subcircuit involved. Gausselin counters that he was nominated by the proper committee, the circuit court county committee established according to section 7 — 8(g).

Section 7 — 61 provides in part that vacancies in nomination “shall be filled by the managing committee *** of the respective political party for the territorial area in which such vacancy occurs.” (Ill. Rev. Stat. 1991, ch. 46, par. 7 — 61.) Phelan argues that since the judicial subcircuit involved crosses eight townships, a representative from each of these townships was required to vote. Sections 7 — 7 and 7 — 8 define the appropriate managing committees. Section 7 — 8(g), at the time the vacancies in nomination were filled, provided that the circuit court committee would be composed of the chairman of the county central committees of the counties comprising the judicial circuit. In this case, only Cook County comprises the judicial circuit and Thomas G. Lyons was the chairman of the Cook County central committee. Therefore, Lyons appropriately acted alone.

Phelan acknowledges that section 7 — 8(g) created a circuit court committee, but claims the Election Code failed to give it any power or duties; however, section 7 — 8(i) gave the committees in section 7 — 8 “the powers usually exercised by such committees and by the officers thereof, not inconsistent with [article 7].” Ill. Rev. Stat. 1991, ch. 46, par. 7 — 8(i).

Additionally, Gausselin contends that if the Election Code does not regulate filling vacancies in nomination for judicial candidates, then a political party is left with its “inherent power” to fill the vacancies in any manner it sees fit. This claim is supported by language in People ex rel. Kell v. Kramer (1928), 328 Ill. 512, 516-21, 160 N.E. 60. Nevertheless, section 7 — 1 evinces a legislative intent to regulate the nomination of candidates through article 7 of the Election Code: “Except as herein otherwise provided, the nomination of all candidates for all *** judicial *** [offices] shall be made in the manner provided in this Article 7, and not otherwise.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 46, par. 7 — 1.) Phelan’s claim that Gausselin was not nominated in accordance with section 7 — 61 fails. The Electoral Board decision and the circuit court’s holding that Gausselin’s nomination met the requirements of article 7 must be affirmed.

In conclusion, we refer to our supreme court’s letter to the General Assembly on January 31, 1982, urging the legislature to review procedures for nominating judicial candidates. Referring to Thurston v. State Board of Elections (1979), 76 Ill. 2d 385, 392 N.E.2d 1349, the court observed:

“It has been argued in our Court that section 7 — 61 of The Election Code (Ill. Rev. Stat. 1977, ch. 46, par. 7 — 61) (Code), as it pertains to filling vacancies in the nomination of judicial candidates at a primary election, is contrary to section 12(a) of article VI of the 1970 Constitution. Thurston v. State Board of Elections (1979), 76 Ill. 2d 385. ***
In Thurston, supra, one of the political parties failed to nominate at the primary election a candidate for the office of resident circuit judge, and the party’s managing committee— the party’s county central committee, filled the vacancy by nominating a candidate. That candidate was subsequently elected in the general election, but the validity of his nomination was contested. Our Court deemed it unnecessary to decide the constitutional issue and held that the doctrine of laches barred the challenge to the nomination of the successful candidate. 76 Ill. 2d 385, 388.
Nevertheless, we believe it important to note that the official publication of the proposed 1970 Constitution stated in reference to Separate Question No. 2A, which is now section 12 of article VI of the 1970 Constitution, that ‘candidates for judge will continue to be elected, but the method of nomination will be changed. The existing “party convention” method for the nomination of judges will be replaced by primary elections or by the method of petition.’ 7 Record of Proceedings, Sixth Constitutional Convention 2761. *** See also 3 Record of Proceedings, Sixth Constitutional Convention 2373-74.
The Supreme Court is cognizant of the General Assembly’s most recent amendment to section 7 — 61 concerning the filling of ‘a vacancy in nomination’ (1980 Laws of Illinois, vol. 1, pp. 1376-77); however, our Court invites, as we have done in the past, a review of section 7 — 61 of The Election Code (Ill. Rev. Stat., 1980 Supp., ch. 46, par. 7 — 61) as it applies to judicial candidates.” (Administrative Office of the Illinois Courts, 1981 Annual Report to the Supreme Court of Illinois 22.)

Since the foregoing letter was submitted, section 7 — 61 has been amended no less than six times, in 1982, twice in 1985, in 1989, in 1990, and again in 1992. In none of the amendments has the General Assembly accepted our court’s invitation to review and, presumably, amend the language of section 7 — 61 as it would have applied in Thurston and as it now applies in the present case.

Indeed, by reorganizing section 7 — 8(g) in 1992 to create a judicial subcircuit committee for each political party in new section 7 — 8(g—1) (see supra note 6), which under section 7 — 61 would be authorized to fill vacancies in nomination in the subcircuits, the legislature appears to have strengthened appellees’ contentions in the present case as well as the circuit court’s affirmance of the Electoral Board.

In view of the foregoing circumstances, we affirm the judgment of the circuit court.

Affirmed.

JOHNSON and GREIMAN, JJ., concur.

       It should be noted that a vacancy in nomination can occur not only by a failure to nominate a judicial candidate in the primary election, but also by a candidate’s death or declination following nomination in the primary. See Ill. Rev. Stat. 1991, ch. 46, par. 7 — 61 (amended 1992).

       Section 7 — 61 was recently amended to provide that “[vjacancies shall be filled by the officers of a local municipal or township political party as specified in subsection (h) of Section 7 — 8, other than a statewide political party, that is established only within a municipality or township,” an amendment which does not affect the issues in this case. (Emphasis in original to denote additions.) Pub. Act 87 — 1052, eff. Sept. 11,1992 (amending Ill. Rev. Stat. 1991, ch. 46, par. 7 — 61); see also infra note 6.

       See generally Cohn, The Illinois Judicial Department — Change Effected by Constitution of1970,1971 U. Ill. L.F. 355, 394-95.

       It specifically recommended that supreme and appellate court judges be “appointed by the Governor from nominees submitted by Judicial Nominating Commissions,” and circuit judges be nominated “as provided by law.” (6 Proceedings 942-43.) The majority proposal, with respect to circuit judges, purposely authorized the party convention method as a permissive legislative option. 6 Proceedings 999,1029-30.

       This amendment also applied to circuit court judges in the majority proposal as it was then structured.

       The legislature has recently amended section 7 — 8(g) of the Election Code in this regard, which provides, in new section 7 — 8(g—1), that judicial subcircuit committees of each political party in Cook County shall be composed of ward and township committeemen, and further provides a voting formula to be followed. (Pub. Act 87 — 1052, eff. Sept. 11, 1992 (amending Ill. Rev. Stat. 1991, ch. 46, par. 7 — 8(g)).) This amendment is not applicable here because the vacancy in nomination was filled on May 14, 1992.