author: PRESIDING JUSTICE BARRY JUSTICE McCULLOUGH,

text:
    THREE “D” DISCOUNT STORE, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Jerry M. Myers, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—88—0142WC
    Opinion filed February 23, 1989.
    Modified on denial of rehearing June 25, 1990.

      McCULLOUGH, J., specially concurring.
    Robert A. Hoffman, of Ryan, Cini & Bennett, of Mattoon, for appellant.
    Richard K. Johnson, of Katz, Friedman, Schur & Eagle, of Chicago, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The petitioner, Jerry M. Myers, brought a claim pursuant to section 19(b) of the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.). The arbitrator found for the respondent, Three “D” Discount Store. The Industrial Commission reversed, awarding the petitioner temporary total disability for a period of 394/? weeks and $5,812.95 in medical expenses. The circuit court of Coles County confirmed. The respondent appeals.

The record shows that the 46-year-old petitioner was employed by the respondent from August 7, 1983, to August 10, 1984. For the first two weeks, the petitioner worked on the renovation of the respondent’s store. The petitioner was then hired full time as a “buffer man.” In his job, the petitioner used two types of buffing machines. The first machine, used primarily from August through October of 1983, was an electric buffer weighing approximately 75 pounds. The second machine was a Honda propane buffer weighing between 150 and 200 pounds. Between August and October of 1983, the petitioner used both machines in scrubbing, waxing and buffing the floors. He worked from six to eight hours a day and experienced no physical problems.

After October of 1983, the petitioner’s hours were reduced to between 2 and 21k hours a day, six days a week. The petitioner mainly dry-buffed the floors, using the propane buffer almost exclusively. He reserved the electric buffer for periodic shampooing of the store’s carpeted areas.

In January of 1984, the petitioner noticed swelling in both hands and began having shooting pains in his right arm and hand. He noticed this condition at home and at work. He consulted his family physician, Dr. Carl Johnson, who prescribed Rufen for the pain. At the time, the petitioner was moderately overweight and was being treated by Dr. Johnson for a diabetic condition. He remained on the medication through February, as the pain in his hands and upper right arm continued to increase in severity. In March, the petitioner began noticing a tingling sensation in his hands and more pain shooting up his right arm. By April, he noticed numbness in the ring finger and small finger of his left hand and in the area of his left wrist. He also noticed numbness from the middle finger of his right hand through his wrist and up his right arm. While working in May and June of 1984, petitioner noticed that his condition continued to grow more severe. He continued on medication, and Dr. Johnson referred him to Dr. Block, a neurologist.

On June 27, 1984, Dr. Block took an EMG and sent the results to Dr. Johnson. Dr. Block’s report stated that his examination suggested bilateral carpal tunnel syndrome, somewhat worse in the right hand than in the left hand. Dr. Johnson discussed the results of the EMG with petitioner and then referred him to Dr. James McKechnie, an orthopedic surgeon. Throughout this period, the petitioner continued buffing the store’s floor according to the schedule set up by the respondent.

Dr. McKechnie examined the petitioner on July 10, 1984. During his interview with Dr. McKechnie, petitioner did not state that his condition was work related or that Dr. Johnson had so informed him. Petitioner stated only that he had had the symptoms for about four months prior to his visit with McKechnie. Dr. McKechnie ordered X rays and scheduled petitioner for surgery in August.

Sometime around the end of July or the beginning of August of 1984, petitioner notified respondent’s manager, Tom Underwood, that he suffered from carpal tunnel syndrome. The petitioner told Underwood that his condition would require surgery and that it was his physician’s opinion that the condition was work related. The petitioner also testified that on August 10, 1984, the last day he worked, he noticed swelling and severe pain in both hands. He experienced severe numbness in the small finger and ring finger of his left hand and in the index and middle fingers of his right hand. He also noted pain and numbness in his right wrist and up his right arm.

The petitioner was hospitalized for an unrelated condition on August 14, 1984. It was during this hospitalization that the carpal tunnel surgery was performed on the petitioner’s right hand and wrist on August 22, 1984. On August 23, 1984, the petitioner called Ron White, the respondent’s assistant manager, and informed him of the surgery and of Dr. McKechnie’s belief that the injury was work related. A second carpal tunnel surgery was performed on the petitioner’s left wrist on November 1, 1984.

Between November of 1984 and February of 1985, the petitioner experienced pain and numbness in the small and ring fingers of his right hand and from the wrist to the elbow. Dr. McKechnie diagnosed that the petitioner was suffering from ulnar nerve palsy and performed surgery on February 14, 1985, to relieve the condition.

The only medical evidence presented to the arbitrator was the deposition of Dr. McKechnie. Though Dr. McKechnie agreed that carpal tunnel syndrome and ulnar nerve palsy can be due to a number of causes, including weight gain, fluid retention, trauma and diabetes mellitus, it was his opinion that the petitioner’s condition was due to repeated trauma in using the buffing machine.

On June 16, 1985, less than four months before this court filed its opinion in Peoria County Belwood, Nursing Home v. Industrial Comm’n (1985), 138 Ill. App. 3d 880, 487 N.E.2d 356, the arbitrator entered her finding for the respondent. Without the benefit of that precedent, the arbitrator in this case found that the petitioner had failed to offer any evidence of when an accidental injury occurred, had failed to show causation and had failed to give timely notice. The arbitrator found that if there was a work-related injury, it most likely occurred in January of 1984 and not on August 10,1984.

The Industrial Commission (Commission) received no new evidence, but after reviewing the record, on June 8, 1987, reversed the arbitrator’s findings. Relying on Peoria County Belwood Nursing Home v. Industrial Comm’n (1987), 115 Ill. 2d 524, 505 N.E.2d 1026, the Commission found that the petitioner had sustained accidental injuries on August 10, 1984, the last day of work, resulting from repetitive trauma arising out of and in the course of his employment. The Commission further found that on “approximately” August 10 the petitioner’s injury had clearly manifested itself.

In addition, the Commission found that a causal relationship existed between the work trauma and the injury, based on Dr. McKechnie’s opinion that the repeated trauma associated with the petitioner’s repetitive flexing of his elbows at 90° and his gripping and manipulating the buffing machines either were the source of or aggravated a preexisting condition of carpal tunnel syndrome and ulnar nerve palsy. The Commission noted that the respondent had presented no evidence to rebut this testimony.

The Commission further found that notice was timely given. Finally, the Commission ruled that the petitioner was temporarily totally disabled for a period of 39Ah weeks and was entitled to $5,812.95 for reasonable and necessary medical expenses.

The respondent appealed to the circuit court, which confirmed the Commission’s decision. On appeal to this court, the respondent first argues that the Commission erred in finding that the petitioner had sustained accidental injuries on August 10,1984.

An employee seeking benefits for gradual injury due to repetitive trauma must meet the same standard of proof as a petitioner alleging a single, definable accident. (Nunn v. Industrial Comm’n (1987), 157 Ill. App. 3d 470, 510 N.E.2d 502.) The petitioner must prove a precise, identifiable date when the accidental injury manifested itself. “Manifested itself” means the date on which both the fact of the injury and the causal relationship of the injury to the petitioner’s employment would have become plainly apparent to a reasonable person. (Peoria County Belwood Nursing Home v. Industrial Comm’n (1987), 115 Ill. 2d 524, 505 N.E.2d 1026.) The test of when an injury manifests itself is an objective one, determined from the facts and circumstances of each case. (Luttrell v. Industrial Comm’n (1987), 154 Ill. App. 3d 943, 507 N.E.2d 533.) A reviewing court may overturn the Commission’s factual determinations only when they are against the manifest weight of the evidence. Anderson Clayton Foods v. Industrial Comm’n (1988), 171 Ill. App. 3d 457, 526 N.E.2d 844.

Having once reversed the Commission’s determination, we have reconsidered our position upon petition for rehearing; and we now find in petitioner’s favor. The evidence in this case establishes that Dr. Carl Johnson discussed Dr. Block’s report of the EMG results with petitioner. The report was dated June 27, 1984; and it was in May and June that petitioner’s condition had deteriorated to the point that his family doctor referred him to a medical specialist. No direct evidence was presented regarding whether Dr. Johnson ever told the petitioner that his injury was work related. It is clear that the condition was at least tentatively diagnosed as carpal tunnel syndrome on June 27, and that petitioner learned that the condition was work related prior to petitioner’s conversation with Tom Underwood in late July or early August 1984. It is not clear, however, that the tentative diagnosis and its relationship to petitioner’s employment were discussed at any time prior to or during petitioner’s visit to Dr. Johnson following Dr. Block’s examination. It was not until July 10, when petitioner met with Dr. McKechnie, that it became clear that petitioner’s condition necessitated surgery. The following deposition testimony relative to when petitioner learned that his condition was work related was elicited from Dr. McKechnie during respondent’s cross-examination:

“Q. Doctor, are we to understand *** that when you saw Mr. Myers on July 10, 1984 he advised you that the symptoms of which he complained had been going on for approximately four months prior to that date?
A. That’s right.
Q. Did he advise you at that time that Dr. Johnson had told him that the symptoms which he complained of might or could have been work related?
A. That was not discussed at the time of his visit.
Q. At any time since the July 10, 1984 visit has Mr. Myers advised you that Dr. Johnson, prior to July 10, 1984, advised him that his symptomatology might be work related?
A. No.”

Based on the evidence of record, it could be reasonably inferred that petitioner first learned that his condition of ill-being was work related at some point between July 10 and the first of August 1984. Applying the reasonable person test to these facts, we find that although petitioner persisted in his employment until August 10, a reasonable person in these circumstances would have been on notice that his condition was both work related and medically disabling on July 10, 1984.

This court recently stated in Oscar Mayer & Co. v. Industrial Comm’n (1988), 176 Ill. App. 3d 607, 531 N.E.2d 174, 177, that we reject any interpretation of Peoria Belwood which would permit the employee to always establish the date of the accident in a repetitive trauma case by reference to the last day of work. We also there stated that “we reject [the] contention [that] the date of discovery of the condition and its relation to the employment necessarily fixes the date of accident.” (Oscar Mayer, 176 Ill. App. 3d at 612.) An employee who continues to work on a regular basis despite his own progressive ill-being should not be punished merely for trying to perform his duties without complaint. On the other hand, it is not this State’s policy to encourage disabled workers to silently push themselves to the point of medical collapse before giving the employer notice of an injury. Although our finding that the injury in this case “manifested itself” on July 10, rather than August 10, does not affect the Commission’s ruling in petitioner’s favor, we emphasize that the peculiar facts of each case must be closely analyzed in repetitive-trauma cases to be fair to the faithful employee and his employer as well as to the employer’s compensation insurance carrier.

Respondent next contends that petitioner failed to prove that his condition of ill-being was causally related to an accident arising out of and in the course of his employment.

In repetitive trauma cases, the employee must show that the injury is work related and not the result of a normal degenerative aging process. (Peoria Belwood, 115 Ill. 2d at 530, 505 N.E.2d at 1028.) Petitioner need only prove that some act or phase of employment was a causative factor of the resulting injury. (County of Cook v. Industrial Comm’n (1977), 69 Ill. 2d 10, 370 N.E.2d 520.) The question of causation is one of fact for the Industrial Commission and will not be overturned unless the finding is against the manifest weight of the evidence. Interlake, Inc. v. Industrial Comm’n (1987), 161 Ill. App. 3d 704, 515 N.E.2d 202.

In this case, petitioner testified that he used the propane buffer in a side-to-side motion. Dr. McKechnie stated that the use of the hands in controlling and manipulating a floor polisher “would contribute to the development of the carpal tunnel and ulnar nerve symptoms in either aggravating a preexisting condition or being the source of the condition itself.” Respondent offered no evidence to rebut either petitioner’s testimony or Dr. McKechnie’s expert opinion of causation. Based on her visit to respondent’s place of business, the arbitrator found noticeable vibration in operating each of the buffing machines used by petitioner in his employment. However, she also stated that she did not notice any torque and that “sideward motion on [the propane buffer] *** is not easy if not next to impossible.” We do not interpret the latter finding to be the arbitrator’s comment on petitioner’s credibility, but rather a comment on the physical exertion required to perform petitioner’s job. However, even if we accepted this finding as a contradiction to petitioner’s recitation of his job duties, we find that the manifest weight of the evidence favors a finding for petitioner. (See Cook v. Industrial Comm’n (1988), 176 Ill. App. 3d 545, 531 N.E.2d 379.) Accordingly, we affirm the Commission’s decision with regard to causation.

Lastly, respondent argues that petitioner failed to give timely notice of his injury. Section 6(c) of the Workers’ Compensation Act provides in pertinent part:

“Notice of the accident shall be given to the employer as soon as practicable, but not later than 45 days after the accident. ***
* * *
No defect or inaccuracy of such notice shall be a bar to the maintenance of proceedings on arbitration or otherwise by the employee ■ unless the employer proves that he is unduly prejudiced in such proceedings by such defect or inaccuracy.” Ill. Rev. Stat. 1983, ch. 48, par. 138.6(c).

Having found that petitioner’s injury manifested itself on July 10, we find that he had until August 24, 1984, to give timely notice to his employer. The evidence establishes that petitioner gave notice on two occasions — the first time at the end of July or first of August, and the second on August 23, 1984. Both notices fell within the statutory period.

We affirm the decision of the circuit court confirming the Commission’s decision awarding benefits to the petitioner.

Affirmed.

WOODWARD and LEWIS, JJ., concur.

JUSTICE McCULLOUGH,

specially concurring:

I disagree with the majority in altering the date found by the Commission to be the date of injury from August 10, 1984, to July 10, 1984. It is clear that in Oscar Mayer Co. v. Industrial Comm’n (1988), 176 Ill. App. 3d 607, 531 N.E.2d 174, the last day of work is at least a factor which may be considered to determine the date of accident in a repetitive trauma case. The Commission considered the last day of work in determining the date of injury. The date fixed by the Industrial Commission, August 10, 1984, was not against the manifest weight of the evidence.

McNAMARA, J., concurs.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    KENT W. MORRIS, Plaintiff-Appellee, v. ILLINOIS STATE BOARD OF EDUCATION et al., Defendants-Appellants.
    Third District
    No. 3—89—0451
    Opinion filed May 10, 1990.
    Rehearing denied June 29, 1990.

      Neil E Hartigan, Attorney General, of Springfield, and Harry A. Blackburn, of Chicago (Robert J. Ruiz, Solicitor General, and Karen Michels Caille, Assistant Attorney General, of Chicago, of counsel), for appellant IIlinois State Board of Education.
    John M. Izzo, of Scariano, Kula, Ellch & Himes, of Chicago Heights (David P. Kula, of counsel), for appellant Board of Education, Mazon-Verona-Kinsman Community District No. 2.
    Illinois Educational Association, of Chicago (Betty Thielemann, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff, Kent Morris (Morris), was a teacher for nine years in the defendant Mazon-Verona-Kinsman Community District No. 2 school system (district). The district discharged Morris on March 26, 1988. Pursuant to section 24—12 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 24—12), a hearing was held to determine whether irremediable cause existed for the discharge. The hearing officer concluded that irremediable cause was present. On administrative review, the circuit court reversed. We affirm the circuit court’s decision.

The record reveals that in the summer of 1979, Morris applied for a science position with the district. Morris was interviewed by the district superintendent and high school principal and was offered the position. Morris, a quality control supervisor at a local factory at the time, declined the offer because the salary was too low. Shortly thereafter, the district asked Morris whether he would be interested in a teaching vacancy in the agriculture department. Morris was interested. Morris was again interviewed, and this time he accepted the district’s offer because the salary was competitive. In July 1979, Mr. William Lynch, the then district superintendent, submitted a written request with the Illinois State Board of Education (ISBE) requesting “possible temporary approval for a young man to teach agriculture in our high school.” The request was followed by a letter from James Johnson (Johnson) of the ISBE indicating that Morris was “qualified to teach the Applied Biological and Agricultural area of the Reimbursable Vocational Education Program at the district and that he would suggest that Morris be urged to complete additional coursework in agriculture.” Morris was hired.

In order to teach general agriculture, a teacher must have taken 24 semester hours of coursework in the field of agriculture. These requirements have not changed since 1979. However, Reimbursable Vocational Agriculture (RVA), a course taught only to high school juniors and seniors, had different requirements in 1979. At that time, teaching RVA required 2,000 hours of outside educational working experience in the area of agriculture. Subsequently, in 1983-1984, the ISBE promulgated new rules effectively incorporating the 24-hour coursework requirement for general agriculture teachers to RVA teachers. As a result, Morris did not have the necessary course credits to teach RVA.

With respect to Morris’ qualifications, Johnson’s 1979 letter indicated that Morris was then qualified to teach RVA but would require additional coursework to teach general agriculture. Nevertheless, the district assigned Morris to a teaching position for which he was not qualified. High school principal, now superintendent, Bill Murray (Murray) stated that he never explained to Morris the difference in coursework requirements between RVA and general agriculture because, as Murray himself admitted, Murray didn’t know the difference. More importantly, despite the ISBE’s suggestion that Morris be urged to complete additional coursework, Morris was not notified that he needed the additional coursework. Morris did, however, enroll in an agriculture teaching course at the University of Illinois shortly after he began teaching for the district.

In the spring of 1988, nine years after hiring Morris, Murray recommended to the district that the agriculture department be eliminated. The district rejected Murray’s recommendation and directed him to seek an alternative plan. While studying such alternatives, Murray contacted the ISBE inquiring whether he could combine the agriculture and biology departments. In addition, Murray checked on the qualifications of the school’s biology teacher in order to determine if he could teach agriculture. The ISBE informed Murray that the biology teacher did not qualify to teach agriculture classes. Murray, at that point realizing that Morris and the biology teacher had similar educational and experiential backgrounds, believed that Morris also could not teach agriculture. Murray then inquired into Morris’ qualifications. The ISBE confirmed Murray’s intuition that Morris was not qualified to teach agriculture. Morris remains qualified to teach other subjects.

On March 26, 1988, the district dismissed Morris for cause claiming irremediable deficiencies for failing to possess the necessary qualifications to teach. The district deemed the following causes irremediable:

(1) “failure to meet the college semester hour requirements mandated by the ISBE for teachers assigned to departmentalized courses,” and
(2) “failure to possess the mandated legal requirements to hold your current teaching position or any other existing or contemplated teaching position in the School District.”

On July 12, 1988, a hearing was held regarding the district’s charges against Morris. The hearing officer concluded that the district had sufficient cause to dismiss Morris and that said cause was irremediable. Morris then filed a complaint seeking judicial review of the decision. The circuit court of Grundy County reversed the hearing officer’s decision. The district brings the instant appeal. Pursuant to Supreme Court Rule 303(a)(3) (107 Ill. 2d R. 303(a)(3)), the ISBE joined the instant appeal.

The district first argues that remediability is irrelevant because Morris is legally unqualified to teach. The district cites two cases in support of its argument. (Brubaker v. Community Unit School District No. 16 (1977), 46 Ill. App. 3d 588, 360 N.E.2d 1228; Riley v. School District 124 (1966), 75 Ill. App. 2d 35, 221 N.E.2d 424.) After reviewing these cases, however, we find them both of little help to the district. In both cases, the teachers allowed their teaching certificates to lapse. The courts held that the teachers’ failure to maintain their teaching certificates left them legally unqualified to teach. Here, in contrast, there is no question as to Morris’ certification as a teacher in Illinois.

Moreover, as part of its “remediability is irrelevant” argument, the district engages in a semantic exercise arguing that Morris’ lack of semester hours was a “reason” for his dismissal and not a “cause” as defined by the School Code.

The relevant sections of the School Code provide in pertinent part as follows:

“§10—22.4. Dismissal of teachers. To dismiss a teacher for incompetency, cruelty, negligence, immorality or other sufficient cause, *** and to dismiss any teacher whenever, in its opinion, he is not qualified to teach ***.” Ill. Rev. Stat. 1987, ch. 122, par. 10—22.4.
“§24—12. Removal or dismissal of teachers in contractual continued service. ***
If a dismissal or removal is sought for any other reason or cause, including those under Section 10—22.4, the board must approve a motion containing specific charges ***. ***
Before setting a hearing on charges stemming from causes that are considered remediable, a board must give the teacher reasonable warning.” Ill. Rev. Stat. 1987, ch. 122, par. 24—12.

The district asserts that the words “cause” and “reason” in section 24—12 have different meanings. If a teacher is dismissed for cause, the district proposes, remediability and notice are at issue. When a teacher is dismissed for a reason, however, remediability and notice are not at issue. It is the district’s contention that Morris may be dismissed without regard to remediability because his coursework deficiency is, in its opinion, the “reason” for his dismissal. The district asserts, therefore, that because Morris was dismissed for a “reason,” notice was not necessary. We find this creative interpretation meritless.

We believe the district’s attempt to carve out an exception to the remediable principle by citing a few rules of statutory construction is not supported by the statutory language contained within the statutes nor has any case interpreted these statutes in this manner. After reviewing the pertinent statutes, it appears the legislature meant “reason” and “cause” to be interchangeable in section 24—12. Notwithstanding this, the record reveals that the district left no doubt in its notice of dismissal and in its arguments before the hearing officer and circuit court that Morris was dismissed for cause and not for a “reason.”

The district next contends that the cause of Morris’ dismissal was irremediable. The test for determining whether conduct is remediable as established in Gilliland v. Board of Education of Pleasant View Consolidated School District No. 622 (1977), 67 Ill. 2d 143, 365 N.E.2d 322, is (1) whether damage has been done to the students, faculty or school, and (2) whether the conduct resulting in that damage could have been corrected had the teacher been warned.

In Gilliland, the teacher was dismissed by the board of education for incompetency, cruelty, and negligence. In applying its facts to the two-prong remediability test, the court there found that the record contained considerable evidence of damage to the students in satisfaction of the first prong. With respect to the second prong, there is minimal discussion except reference to the fact that the teacher’s complained-of conduct had extended over a period of four years, despite complaints by students and parents. The court concluded that the combination of causes plus the continuous nature of the conduct were a sufficient basis for a finding of irremediability. Gilliland (1977), 67 Ill. 2d 143, 365 N.E.2d 322.

In the instant case, contrary to the district’s assertion, the record contains no testimony as to damage done to the students, faculty, or school by Morris’ teaching. The only damage argument posed by the district was that the district might possibly lose State funds for employing an unqualified teacher. The district argues that now that the ISBE has been made aware that Morris lacks qualifications for his teaching position, his continued employment jeopardizes the district’s future receipt of State funds. However, a finding of damage based on an inference or presumption that damage might occur in the future does not satisfy the damage requirement in Gilliland.

The circuit court correctly rejected the district’s presumed damage argument. The first prong of the Gilliland test is whether any damage has been done, not whether damage might occur in the future. This court in Swayne v. Board of Education of Rock Island School District No. 41 (1986), 144 Ill. App. 3d 217, 221, 494 N.E.2d 906, 909, noted that when dealing with a necessarily vague standard such as the Gilliland test, a court of review is inevitably drawn to comparisons with prior cases in order to place the facts before it on some sort of continuum. After reviewing and comparing the prior cases, we find that those cases applying the Gilliland test all concerned damage already done and not damage that may be presumed or inferred. Here, the district did not demonstrate that Morris’ coursework deficiency damaged the students, faculty, or school as Gilliland requires.

With respect to the second prong of the Gilliland test, whether the conduct resulting in the damage could have been corrected had the defendant’s superiors warned him, the district did not give Morris notice to remedy his coursework deficiency. The record reveals that Murray did not take any action to notify, require, insist, or in any other way impress upon Morris that additional coursework was required. Murray testified that although he mentioned to Morris nine years ago that he should take additional classes, Murray recalled no subsequent attempts to direct Morris to take additional classes. Indeed, Murray did not know additional coursework was required for Morris’ teaching position until March of 1988.

It is well settled that where conduct which forms the basis of charges seeking dismissal is deemed remediable, as here, the district must give the teacher a written warning which informs him of the consequences of failing to take corrective measures. (Board of Education of School District No. 131 v. State Board of Education (1983), 99 Ill. 2d 111, 457 N.E.2d 435.) Where no warning is given, the board’s evidence must prove that the teacher’s conduct is irremediable. (McBroom v. Board of Education of District No. 205 (1986), 144 Ill. App. 3d 463, 494 N.E.2d 1191.) If the board fails to meet this evidentiary burden, it is deprived of the authority to terminate a teacher’s employment. (Chicago Board of Education v. Payne (1981), 102 Ill. App. 3d 741, 430 N.E.2d 310.) Therefore, because we find the cause for Morris’ dismissal remediable, we must determine if Morris was given adequate notice of his deficiency such that he could have taken corrective measures. The record reveals that Morris was not given proper notice of his coursework deficiency.

The record does not indicate that Morris was ever notified by the district of his coursework deficiency until the district’s dismissal action some nine years after his hiring. The record does contain evidence, however, of Morris’ intent to take whatever courses were required. The then Superintendent Lynch sent a letter to the ISBE stating that Morris was “willing to take any courses needed to fully qualify him for the position.” Morris also enrolled in and completed an agriculture teaching course at the University of Illinois. Subsequently, notice was not sent by the district to Morris indicating that he was deficient in agriculture courses and that if he didn’t take additional courses he would be dismissed. As a result, Morris taught for nine years believing he was qualified. More importantly, it is readily apparent from the record that had Morris been told years ago that he needed to take additional courses, he could have completed those courses long ago and would be qualified today for the position to which he was assigned.

We conclude that Morris’ lack of coursework was remediable. The hearing officer stated that Morris could remedy his coursework deficiency by taking 32 hours of courses and the district stated, before the circuit court, that the lack of coursework was remediable. Therefore, contrary to the district’s assertion that Morris’ lack of coursework is not correctable, we agree with the circuit court’s finding that the acquisition of coursework is among the most remediable of deficiencies.

Where a remediable cause exists and notice is not given, the board’s failure to give such warning deprives a board of the authority to discharge the teacher for those causes. (Paprocki v. Board of Education of McHenry Community High School District No. 156 (1975), 31 Ill. App. 3d 112, 114, 343 N.E.2d 841, 844.) We hold, therefore, that because Morris was not notified of his coursework deficiency, the district improperly dismissed him.

We next consider the district’s assertion that even if this court finds Morris’ coursework deficiency to be remediable, this remediable cause became irremediable after such an extended period of time, nine years, had elapsed. Again, we find the district’s reliance on the cases it cites inapposite. In each case, the school board or other superiors of the dismissed teacher continually pointed out the dismissed teacher’s improper conduct. (Gilliland (1977), 67 Ill. 2d 143, 365 N.E.2d 322 (despite attempts by the teacher’s superiors to have her correct that conduct); McCutcheon v. Board of Education (1981), 94 Ill. App. 3d 993, 419 N.E.2d 451) (despite attempts by the school administration to persuade her to follow established procedures and policy); Glover v. Board of Education of Macon Community Unit School District No. 5 (1974), 21 Ill. App. 3d 1053, 316 N.E.2d 534 (even though he had been counseled and reprimanded by his superintendent and. principal).) Here, in contrast, Morris received no warning that the district assigned him to teach a course for which his credentials were deficient. Morris first received notice of his coursework deficiency on the date of his dismissal. In the cases cited by the district, the repeated warnings and reprimands by the teachers’ superiors were deemed to have created irremediable causes.

The district next asserts that it has no obligation to undergo an alteration of its program in order to accommodate Morris and that Morris’ dismissal doesn’t require a finding of subjective fault. The district poses the question “What could we do?” The district argues that Morris “didn’t even bother to look at the ISBE rules.” With this argument, it appears the district wishes to place the burden of knowing what a teacher may or may not teach solely on the teacher. A similar argument was presented to this court in Ballard v. Board of Education of Rock Island School District No. 41 (1986), 141 Ill. App. 3d 24, 489 N.E.2d 896. There, this court held that the defendant district was charged with the responsibility of knowing the qualifications of its teachers. This court noted that such information is under the district’s control and is not readily available to the public. (Ballard, 141 Ill. App. 3d at 27, 489 N.E.2d at 898.) Here, it appears from the record that it was the district who should have looked at the ISBE rules. The district possessed a letter from the ISBE indicating what Morris was qualified to teach. Instead of carefully reading the ISBE’s letter, however, the district misassigned Morris.

We note that what is relevant in this proceeding is whether the teacher’s lack of qualifications is remediable, not what the district could or should have done when it discovered the error it made in misassigning Morris. The circuit court correctly determined that the issue of the district possibly losing State funds if Morris is reinstated and whether a finding of subjective fault is required is “not before us.” The instant case concerns a teacher dismissed for cause. What this court must determine is whether the procedures outlined in section 24—12 of the School Code were followed and not what the district will do when the teacher is reinstated. Accordingly, because we find the district did not have the authority to dismiss Morris, the issue of what to do with Morris when he is reinstated is not before this court.

Moreover, we question the district’s reliance on Fadler v. State Board of Education (1987), 153 Ill. App. 3d 1024, 506 N.E.2d 640, Chicago Board of Education v. Payne (1981), 102 Ill. App. 3d 741, 430 N.E.2d 310, and Board of Education of Argo-Summit School District No. 104 v. State Board of Education (1985), 138 Ill. App. 3d 947, 478 N.E.2d 24, for its ancillary argument that Morris’ conduct is somehow immoral and violates a public trust. Those cases involved two teachers caught fondling students and a teacher caught possessing marijuana. The district, somewhat audaciously, accuses Morris of immoral conduct and of violating the public trust for teaching a course for which he was not qualified. We reject the district’s argument and believe that analogizing the cited cases with the facts presented herein is not only meritless but unfair to Morris.

The district next raises an ancillary insubordination charge, for the first time, on appeal. We need not address this argument for where, as here, the record fails to show that a matter urged on appeal was decided by the circuit court, the issue is not properly preserved, and an argument presented for the first time on appeal is deemed waived. Sherman v. Board of Fire & Police Commissioners (1982), 111 Ill. App. 3d 1001, 445 N.E.2d 1.

The focus of the instant case centers on the question whether Morris’ coursework deficiency is remediable. We, like the circuit court, believe that it is. Morris has taught a course, for which he was not qualified, for nine years. The district, not surprisingly, never checked up on Morris’ qualifications to teach that course for no complaints regarding Morris’ competency to teach were ever lodged by students, parents, or fellow faculty members. More importantly, Morris has expressed from the beginning a willingness to take the necessary courses in order to become qualified. We conclude, therefore, that because the district failed to notify Morris of his coursework deficiency, thereby depriving Morris of the opportunity to take corrective measures, the district was without the authority to dismiss Morris. For these reasons, Morris should be given a reasonable amount of time to expeditiously remedy his coursework deficiency.

In short, we find the hearing officer’s conclusion that Morris’ coursework deficiency was irremediable to be against the manifest weight of the evidence. Accordingly, the judgment of the circuit court of Grundy County is affirmed.

Affirmed.

HEIPLE, P.J., and SCOTT, J., concur.


text:
    JANET DUPREE KEW, Plaintiff-Appellee, v. LELAND O. KEW, Defendant-Appellant.
    Third District
    No. 3—89—0093
    Opinion filed May 25, 1990.
    Rehearing denied July 5, 1990.

      Herring & Hoehne, of Peoria (William H. Herring, of counsel), for appellant.
    Janssen, Maher, Wertz & Miller, of Peoria (Bruce R. Becker, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Leland Kew (the husband), appeals from the provisions classifying and dividing property and from the provisions for maintenance to be paid to the plaintiff, Janet Kew (the wife), rendered by the circuit court of Peoria County in its judgment of dissolution of marriage. The issue we address on appeal is whether the trial court erred in finding a pension annuity to be marital property. We affirm.

The parties were married in North Carolina in 1973. At the time, the husband was 45 years old and worked as a landscape architect in Raleigh, North Carolina. The wife was 38 years old and worked as a registered nurse, also in Raleigh.

Prior to the marriage, the husband worked for the Pleasure Drive and Park District of Peoria (the park district) from June 1954 to February 1960, during which time he and the park district contributed to the Illinois Municipal Retirement Fund (the fund) (Ill. Rev. Stat. 1987, ch. 108½, par. 7—101 et seq.). The fund is designed to provide benefits to the participating employee, or the family of such employee, in the event of death, disability, or retirement of the employee. Upon leaving park district employment in 1960, the husband withdrew the approximately $2,000 in contributions he had made to the fund. According to section 7—169 of the Illinois Pension Code (the Code) (Ill. Rev. Stat. 1987, ch. 108½, par. 7—169), the husband could later reinstate the service credits earned from this period of employment if he were to be rehired by a participating employer, work two years, and repay (with interest) the previously withdrawn contributions.

The parties subsequently moved to Peoria in June 1979, where the husband resumed employment with the park district. In January 1987, the husband and wife agreed to contribute $8,144.62 in marital funds to reinstate the service credits earned during the husband’s earlier employment with the park district. The parties contributed the marital funds so that the husband’s retirement check would increase from approximately $800 per month to $1,300. The surviving spouse’s annuity would also be enhanced, since its monthly payments would be a certain fraction of what the husband’s retirement annuity payments would have been. See Ill. Rev. Stat. 1987, ch. 108½, par. 7—156.

The husband retired from his position at the park district on June 1, 1987, at the age of 59, and began to receive retirement annuity payments thereafter. Pursuant to section 7—154(2) of the Code (Ill. Rev. Stat. 1987, ch. 108½, par. 7—154(2)), upon the husband’s retirement the surviving spouse’s annuity became vested in the wife whether or not she remained married to the husband.

On January 20, 1988, the wife filed for dissolution of marriage. At trial, the parties offered a stipulation of the present values of the retirement annuity and of the surviving spouse’s annuity. The parties stipulated that the present value of the husband’s retirement annuity was $134,750.27 and the present value of the surviving spouse’s annuity was $86,162.58. The parties based these calculations on actuarial computations. In the property disposition, after considering the stipulation, the trial court rejected the stipulated value of the surviving spouse’s annuity, finding it to be speculative. The court attached no value to the surviving spouse’s annuity but awarded it to the wife. The court found the husband’s retirement annuity to be marital property. The court, seeking to divide the marital property nearly evenly, ordered the husband to pay the wife half of the husband’s retirement annuity each month for so long as they both live. The court also ordered the husband to pay maintenance to the wife for a 14-month period. The court, however, retained jurisdiction to review that order.

On appeal, the husband contends that the parties made the $8,144.62 contribution of marital property to the park district in order to reinstate a nonmarital asset, the pension benefits. Thus, according to the husband, the trial court erroneously classified the pension as being entirely marital property. The evidence indicates that the parties jointly decided to pay the $8,144.62 to the park district and that said money constituted marital property. The only question, then, is whether the pension is a marital asset. We conclude that it is.

Initially, the husband suggests that the trial court was bound to abide by the parties’ stipulation regarding the present values of the pension. The trial court has the discretion to determine the validity and reasonableness of a stipulation. (Krotke v. Chicago, Rock Island & Pacific R.R. Co. (1974), 26 Ill. App. 3d 493, 327 N.E.2d 212.) Accordingly, under these circumstances, we find the trial court did not abuse its discretion.

Section 503 of the Illinois Marriage and Dissolution of Marriage Act (the Act) requires a court to classify property as either marital or nonmarital in order to assign or divide it upon a marriage dissolution. (Ill. Rev. Stat. 1987, ch. 40, par. 503.) As a general rule, under section 503(b) of the Act, all property acquired by either spouse after the marriage, but prior to a judgment of dissolution, is presumed to be marital property. (Ill. Rev. Stat. 1987, ch. 40, par. 503(b).) Here, the husband contends that the contribution of marital property to “reinstate” his pension benefits constitutes a marital contribution to the nonmarital estate. The wife’s surviving spouse’s annuity, the husband suggests, is an item of property contributed from the non-marital estate to the marital estate. Therefore, the nonmarital property (pension) retains its character as nonmarital property, but a right to reimbursement arises in favor of the marital estate to the extent that said contribution can be traced and proved by clear and convincing evidence. (See Ill. Rev. Stat. 1987, ch. 40, par. 503(a)(7).) This contention, however, is meritless for we find the parties made the contribution of marital property in order to purchase a marital asset, namely, the pension.

In the case sub judice, the husband withdrew the contributions he made to the fund following his first term of employment with the park district. This amount, together with the accrued interest thereon, was repaid to the fund with marital property. We are not presented here with a case in which marital property is employed to benefit nonmarital property. The parties made a joint decision to use marital funds to purchase a marital asset.

The husband testified that the purpose of making the contribution to the fund was to “buy back into it.” We note that “buying back into the fund” benefitted both the husband and wife. The parties made this decision in order to increase the husband’s pension benefits and the wife’s surviving spouse’s annuity. As such, we do not find the surviving spouse’s annuity to be an isolated, nonmarital contribution to the marital estate.

The husband asserts that this court should calculate the portion of the annuity acquired prior to the marriage from that acquired after the marriage. This calculation would be made if this case concerned the commingling of nonmarital and marital property. The pension at issue here, however, uniquely provides the employee spouse the opportunity to reinstate service credits from his earlier employment. The husband and wife agreed to take advantage of this provision by contributing marital funds to the park district. Therefore, because marital funds were employed to purchase a marital pension annuity, the trial court did not have to apportion the nonmarital assets from the marital assets. We find the cases cited by the husband readily distinguishable. (See In re Marriage of Hapaniewski (1982), 107 Ill. App. 3d 848, 438 N.E.2d 466.) Accordingly, under these circumstances, the trial court properly found the pension annuity to be marital property.

The husband next asserts that the trial court abused its discretion in considering the value placed on the husband’s pension and yet finding the value of the wife’s surviving spouse’s annuity to be speculative. It is well settled that a trial court has broad discretion in the valuation and subsequent distribution of marital assets. (In re Marriage of Malters (1985), 133 Ill. App. 3d 168, 478 N.E.2d 1068.) Absent an abuse of discretion whereby no reasonable man could adopt the trial court’s position, a reviewing court will not substitute its judgment for the lower court’s disposition in marital property matters. In re Marriage of Mullins (1984), 121 Ill. App. 3d 86, 458 N.E.2d 1360.

In the instant case, the trial court held that since the wife only receives the surviving spouse’s annuity in the event she survives the death of her husband, her realization of any benefit from the surviving spouse’s annuity is purely speculative and therefore no value is to be placed upon it. This court addressed a similar issue in In re Marriage of Fairchild (1982), 110 Ill. App. 3d 470, 442 N.E.2d 557.

In Fairchild, at issue, inter alia, was an employee spouse’s pension benefits. There, the pension benefits had not yet vested for the husband was still employed. Notwithstanding this, an economist testified as to the accrued and vested value of the pension benefits based on actuarial principles. This court noted:

“A potentially unfair situation thus arises, as the employee spouse risks making a final division of property with the non-employee spouse based upon a fixed value of future pension/ savings benefits which may, in fact, be valueless if the actuarial assumptions for the hypothetical person are inapplicable to the very real person before the court.” In re Marriage of Fairchild (1982), 110 Ill. App. 3d 470, 475, 442 N.E.2d 557, 560.

Similarly, in the instant case, the wife’s surviving spouse’s annuity benefits are valueless if the actuarial assumptions upon which the aforementioned stipulation is based do not apply to the wife. Therefore, it would likewise be unfair to include the wife’s surviving spouse’s annuity in the final disposition of property, for her benefit, if any, is based upon speculative, albeit actuarial, assumptions. Fairchild, 110 Ill. App. 3d 470, 442 N.E.2d 557.

Here, the trial court, while rejecting the actuarial valuations of the wife’s surviving spouse’s annuity, was cognizant of the potential unfairness of these valuations should the life expectancy assumptions prove to be incorrect. We conclude, therefore, that the trial court did not abuse its discretion in finding the wife’s surviving spouse’s annuity to be speculative.

The husband finally asserts that the trial court abused its discretion in dividing the marital property. In a dissolution proceeding, in determining whether the trial court abused its discretion in dividing property, the question is whether the trial court in the exercise of its discretion acted arbitrarily, without the employment of conscious judgment or, in view of all the circumstances, exceeded the bounds of reason and ignored recognized principles of law so that substantial injustice resulted. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126.) The trial court in the instant case, when rendering its decision, properly considered the opportunity of each party to acquire future income, their respective ages and health, and divided the marital property accordingly. The discretion accorded the trial court in this case was not abused.

For these reasons, we affirm the judgment of the circuit court of Peoria County.

Affirmed.

HEIPLE, P.J., and BARRY, J., concur.


author: PRESIDING JUSTICE HEIPLE

text:
    NORMAN B. UDSTUEN, Plaintiff-Appellant, v. WILLIAM J. PATTERSON, Defendant-Appellee.
    Third District
    No. 3—89—0565
    Opinion filed May 31, 1990.
    Rehearing denied July 5, 1990.
    Gomien, Root & Rigazio, of Morris (James E. Priestley, of counsel), for appellant.
    E. Kent Ayers and Dinah Lennon Archambeault, both of Murphy, Timm, Lennon, Spesia & Ayers, of Joliet (Neil T. Goltermann, of counsel), for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

Plaintiff filed a personal injury complaint more than two years after his accident and the complaint was dismissed. The trial court ruled that the claim was barred by the statute of limitations. Plaintiff appeals on the grounds that his accident rendered him physically incapacitated and thus legally disabled so that the statute of limitations was tolled.

The simple facts are that the 80-year-old plaintiff, Norman Udstuen, was struck by a vehicle on November 1, 1985, as he walked across a street in Morris, Illinois. As a result of the incident, plaintiff sustained serious leg injuries. Plaintiff filed a complaint against defendant, William J. Patterson, on January 12, 1989, alleging defendant’s negligence and seeking damages. Plaintiff also alleged that he was physically incapacitated and unable to manage his estate from the date of the accident until August 3, 1987. On April 10, 1989, defendant filed a motion to dismiss the complaint pursuant to section 2—619(a)(5) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—619(a)(5)), in that the cause of action was not filed within two years of the date of the accident.

Plaintiff filed a reply to defendant’s motion to dismiss, stating that although the action was not commenced within the proscribed two-year limitation period, he was entitled to a tolling of the statute of limitations because of his physical incapacity. Plaintiff attached the affidavit of his sister, Sadie Udstuen, which stated that Ms. Udstuen lived with the plaintiff before the accident and after August 3, 1987, and that plaintiff was continuously confined in health care facilities from the time of the accident until August 3, 1987, suffering from leg injuries which required eight operations and continuous pain medication.

It is correct that the statute of limitations is tolled during a period of legal disability (Ill. Rev. Stat. 1987, ch. 110, par. 13—211). It is also correct that physical incapacity may constitute legal disability (Ill. Rev. Stat. 1987, ch. 110½, par. 11a—2).

Defendant’s motion to dismiss proceeded to a hearing solely on the basis of the plaintiff’s sister’s affidavit. Plaintiff contends that the affidavit shows that he was under a disability and that, in any event, it raised a factual question which entitled him to a jury determination. We disagree on both counts.

Giving the affidavit its most favorable interpretation, it shows only that the plaintiff was injured and thereafter confined in a health care facility for a period of time. Many people are injured and confined in health care facilities who are not thereby legally disabled. Standing alone, the affidavit is insufficient. Lacking was a factual basis for concluding that the plaintiff was not fully able to manage his person or estate. Whether the affidavit could have been expanded to include facts which might have pointed to that conclusion is purely conjectural. Had plaintiff requested it, he would have been entitled to an evidentiary hearing to present witnesses on the question of his physical incapacity as it related to disability. The record does not disclose such a request and no such evidence was offered. Rather, plaintiff proceeded to a hearing on defendant’s motion to dismiss solely on the basis of his sister’s affidavit, which we find to be insufficient.

Since the facts alleged in the affidavit were not disputed, but, rather, the legal conclusion (i.e., whether the facts constitute legal disability) drawn from those undisputed facts was in dispute, there was no genuine issue of fact. (Sharp v. Gallagher (1981), 94 Ill. App. 3d 1128.) In light of the fact that no genuine issue of fact existed, no jury decision was warranted. The only issue before the trial court was one of law, which is properly determined by a judge. Ill. Rev. Stat. 1989, ch. 110, par. 2-619(c).

Accordingly, the decision of the trial court granting the motion to dismiss is affirmed.

Affirmed.

SCOTT and STOUDER, JJ., concur.


text:
      In re PETITION TO ANNEX CERTAIN REAL ESTATE TO THE CITY OF JOLIET (Rex Steffes et al., Petitioners-Appellees, v. Vulcan Materials Company, Objector-Appellant (American Cyanamid Company et al., Objectors; Laraway School District No. 70-C, Intervenor and Objector-Appellant)).
    Third District
    No. 3—89—0249
    Opinion filed June 5, 1990.
    Rehearing denied July 5, 1990.

      Kenneth A. Carlson, of Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet (Thomas R. Wilson, of counsel), for appellant Vulcan Materials Company.
    Robert H. Ellch, John M. Izzo, and Charles T. Ryan, all of Scariano, Kula, Ellch & Himes, Chartered, of Chicago Heights, for appellant Laraway School District 70-C.
    Codo, Bonds, Zumstein & Konzelman, PC., of Joliet (Bruce M. Konzelman, of counsel), for appellees.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

In this case, the joint owners of a single parcel of real estate sought to annex their land to the City of Joliet along with two other parcels owned by others. The owners of the other two parcels objected unsuccessfully and the tract was annexed. For the reasons hereinafter set out, we reverse.

On February 7, 1989, a petition for annexation of approximately 200 acres of territory to the City of Joliet, Illinois, was filed with the circuit court clerk of Will County by six individual record co-owners of a single 55-acre tract of territory. Objecting to this annexation were Vulcan Materials Company and American Cyanamid Company, the record owners of the remainder of the territory which petitioners sought to have annexed. The objectors claimed that, contrary to law, the petition was not signed by a majority of the record owners. (Ill. Rev. Stat. 1987, ch. 24, par. 7—1—2.) Following a hearing, the objections were overruled and the trial court found that the petition was signed by the requisite number of record owners. Thereafter, the trial court entered an order directing that the petition be submitted to the corporate authorities of the City of Joliet for final action. From this order the Vulcan Materials Company appeals.

On October 11, 1989, this court entered an order allowing Laraway School District to intervene as an appellant-objector. Subsequently, on November 8, 1989, this court entered an order staying the judgment of the trial court until further order from this court.

The locations and boundaries of the three tracts of land are set forth in a sketch attached hereto. Vulcan Materials Company’s 75-acre tract is contiguous to the southwest border of the corporate limits of the City of Joliet. American Cyanamid Company’s 70-acre tract is contiguous to the southwest border of Vulcan Materials Company’s tract and contiguous to a portion of the northern border of the petitioners’ tract, but is not contiguous to the City of Joliet. The petitioners’ 55-acre tract is contiguous only to the American Cyanamid Company tract and not to the Vulcan Materials Company’s tract or the City of Joliet.

Prior to February 7, 1989, Union National Bank and Trust Company of Joliet, now First Midwest Bank/Illinois, held record ownership of the 55-acre tract under trust number 3235. Rex Steffes, Dale Steffes, and Robert Steffes were the only beneficiaries of trust number 3235. On February 7, 1989, the beneficiaries caused the trustee to convey title to them and their -wives as tenants in common. Thereafter, on the same date, the six Steffeses, as co-owners, filed a petition to annex the 55-acre tract to the City of Joliet, as well as the two larger intervening parcels owned by Vulcan Materials Company and American Cyanamid Company. It is undisputed that the conveyance from the trustee bank to the six tenants in common was effected for the sole purpose of meeting the statutory requirement that the petition be signed by a majority of the owners of record of the territory sought to be annexed.

The singular issue for this court to resolve on appeal is whether the trial court erred in finding that the petition was signed by the requisite number of property owners of record pursuant to section 7—1—2 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 7—1—2). Section 7—1—2 provides in pertinent part:

“A written petition signed by a majority of the owners of record of land in such territory, and also by a majority of the electors, if any, residing in such territory, shall be filed with the circuit court clerk of the county in which the territory is located ***.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 24, par. 7—1—2.)

The term “majority of the owners of record” under section 7—1—2 has not yet been interpreted by the Illinois Supreme Court.

The petitioners argue that the phrase “owners of record” should be given its ordinary and commonly accepted meaning. The petitioners rely on the Second District Appellate Court case of In re Petition to Annex Certain Territory to Village of Round Lake Park (1975), 29 Ill. App. 3d 651, for the proposition that “owners of record” always include fee title holders of record. In re Village of Round Lake Park involved an annexation case wherein the court examined the meaning of the term “owners of record” under section 7—1—2. The court stated:

“[Wjhile some persons under certain circumstances may be considered ‘owners’ who are not fee owners, fee owners, where the deed is recorded, are always considered owners of record.” (In re Village of Round Lake Park, 29 Ill. App. 3d at 655.)

Consequently, the petitioners in the instant case claim that the conveyance by the trustee to the three beneficiaries and their spouses as tenants in common resulted in each individual being a fee title holder and resulted in six owners of record.

The objectors contend, however, that the six signatures placed on the Steffeses’ petition for annexation should have been collectively considered as that of only one owner of record. The objectors maintain that to allow the co-owners of a single tract of land to be considered as a majority of the record owners for annexation purposes would allow the statute to be manipulated and would produce absurd results not contemplated by the statute. We agree with the objectors and choose not to follow In re Village of Round Lake Park.

In construing a statute, it is presumed that the legislature did not intend unjust, absurd or unreasonable consequences. (People v. Illinois Commerce Comm’n (1983), 114 Ill. App. 3d 384.) If the trial court’s interpretation of the term “majority of the owners of record” is accepted, such consequences will result. Simply stated, anytime a record owner of one tract of land wishes to annex his property along with intervening parcels into a municipality, he will merely split ownership of his tract among as many family members, friends or straw men as is necessary to meet the signature requirement of an annexation petition. Just so in the instant case. The ownership of one 55-acre tract of land was divided among six family members, in order to force annexation of American Cyanamid Company (70 acres) and Vulcan Materials Company (75 acres) to the City of Joliet. This is unjust and unreasonable.

Therefore, this court chooses to interpret section 7—1—2 so that co-owners of one tract of land are to be collectively considered as only one owner of record. Thus, since the Steffeses in the aggregate constitute a single record owner, we deem that the annexation petition was not signed by the requisite number of record owners and is insufficient. Accordingly, we reverse the judgment of the trial court.

Reversed.

SCOTT and STOUDER, JJ., concur.

Appendix


author: JUSTICE REINHARD JUSTICE DUNN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL ADAMS, Defendant-Appellant.
    Second District
    No. 2—88—0857
    Opinion filed June 5, 1990.

      DUNN, J., specially concurring.
    G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.

      James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Daniel Adams, was indicted in the circuit court of Du Page County on one count of criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12—13(a)(3)), and following defendant’s plea of guilty, the court sentenced him to three years’ imprisonment on December 2, 1987. On August 18, 1988, the trial court entered an order finding defendant to be a habitual child sex offender and certifying defendant to be such a habitual child sex offender pursuant to the Habitual Child Sex Offender Registration Act (Act) (Ill. Rev. Stat. 1987, ch. 38, par. 221 et seq.).

Defendant raises the following issues on appeal: (1) whether the trial court lacked jurisdiction to enter the August 18, 1988, order certifying him as a habitual child sex offender; (2) whether the Act violates the eighth amendment to the United States Constitution; (3) whether the Act violates article I, section 11, of the Illinois Constitution; (4) whether the Act violates the equal protection clause of the Federal and State Constitutions; and (5) whether the Act violates the due process clause of the Federal and State Constitutions.

Defendant appeared before the court on December 2, 1987, to plead guilty to criminal sexual assault. Prior to accepting the plea agreement, the trial court inquired as to defendant’s criminal history. The State told the court defendant was placed on probation July 31, 1985, for aggravated criminal sexual abuse against the same daughter who was the victim of the instant case. Defendant’s counsel acknowledged that this was correct. The court then admonished defendant and listened to a factual basis for the plea that stated, among other things, that defendant’s daughter would have testified that she was 12 years old when her father entered her bed, removed her clothing, and placed his penis into her anus.

Just after the court sentenced the defendant, the prosecutor informed the court that by statute the State was required to file a habitual child abuse offender form which required defendant’s signature. The court ordered defendant to sign the form. This form is not contained in the record. There are no written findings indicating that the trial court determined defendant to be a habitual child sex offender or that the trial court certified defendant as such.

On May 3, 1988, the State filed a motion in the circuit court to have defendant certified pursuant to the Act. Defendant objected on grounds of equal protection and on the basis that the trial court was without jurisdiction because 30 days had passed since entry of judgment. The trial court found no violation of equal protection and ruled that it could certify defendant at this date because it was a ministerial function. The August 18, 1988, order states that defendant is found to be a habitual child sex offender and is so certified based upon findings made on December 2, 1987.

The Act, enacted in 1986, requires that anyone convicted of a second offense in Illinois of criminal sexual assault, aggravated criminal sexual assault, criminal sexual abuse, or aggravated criminal sexual abuse when the offense is a felony, against a victim under 18 years of age, shall be certified as a habitual child sex offender. (Ill. Rev. Stat. 1987, ch. 38, par. 222.) A habitual child sex offender must register with the chief of police in the municipality he resides or moves to for up to 10 years after his conviction or the time he is released from prison or other confinement. (Ill. Rev. Stat. 1987, ch. 38, pars. 223, 227.) Registration consists of a statement in writing by the offender giving information required by the State Police which may include fingerprints and photographs. (Ill. Rev. Stat. 1987, ch. 38, par. 228.) An offender must notify the law enforcement agency of any change of address within 10 days. (Ill. Rev. Stat. 1987, ch. 38, par. 226.) Violation of the Act is a Class A misdemeanor. Ill. Rev. Stat. 1987, ch. 38, par. 230.

We first address defendant’s contention that the trial court lacked jurisdiction on August 18, 1988, to enter an order finding him to be a habitual child sex offender and certifying him as such because more than 30 days had passed since judgment was entered in the case. We begin by noting that defendant only raises a jurisdictional challenge to the timeliness of the entry of the order and does not raise any other basis for setting the order aside regarding the procedures used in determining he was a habitual child sex offender. As such, we will limit our review to the jurisdictional issue presented on appeal.

The State responds that the statute sets no time limit for the certification and, as the certification is a mandatory act, the certification may be entered at any time. The State also contends that, as the trial court retains jurisdiction over its records and retains the power to correct them, such residual jurisdiction pertains to the entry of mandatory findings, as here. As we agree that the trial court under the circumstances here retained jurisdiction to correct its record, we need not address the alternate basis suggested by the State.

When a defendant has been convicted, sentenced and placed into the custody of the Department of Corrections, the court rendering judgment and imposing sentence loses jurisdiction over the case and is without power to vacate, set aside or modify the judgment. (People v. Wakeland (1958), 15 Ill. 2d 265, 269, 154 N.E.2d 245; see People v. Glenn (1962), 25 Ill. 2d 82, 85, 182 N.E.2d 670.) Even though the trial court may lose jurisdiction of a case, it does not lose jurisdiction over its own records and may correct those records to reflect accurately the judgment that was in fact entered. Glenn, 25 Ill. 2d at 85, 182 N.E.2d at 672.

In this case, the parties agreed at the sentencing hearing on December 2, 1987, that defendant had been convicted of criminal sexual abuse in 1985 in Stephenson County. Additionally, the assistant State’s Attorney requested, and the court directed, defendant to sign a “Habitual Child Abuse Offender form.” The written order evidencing judgment does not, however, contain any finding regarding defendant’s status as a habitual child sex offender or any reference to a certification of such. On the other hand, the order of August 18, 1988, expressly finds defendant to be a habitual child sex offender and certifies him as such by referring to the court’s findings of December 2, 1987.

Section 2(A) of the Act provides, in pertinent part, as follows:

“Upon such conviction the court shall certify that the person is a ‘habitual child sex offender’ and shall include the certification in the order of commitment.” Ill. Rev. Stat. 1987, ch. 38, par. 222(A).

While the procedure employed at the December 2, 1987, sentencing hearing should have included an express written finding of habitual child sex offender status and certification thereof by the trial court, the report of proceedings does indicate that the trial court was aware that defendant was a habitual child sex offender based on his prior conviction in 1985 and that some effort was made to comply with the Act, albeit less than ideal. Under these particular circumstances, any lack of such finding or certification in the written judgment must be viewed as an oversight or inaccuracy in the record. Thus, the trial court retained jurisdiction to correct the record to reflect accurately its determination on December 2, 1987, that defendant was a habitual child sex offender under the Act.

We next address defendant’s contention that the Act’s registration requirement constitutes cruel and unusual punishment. In this regard, defendant initially relies on Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 9 L. Ed. 2d 644, 83 S. Ct. 554, in arguing that the registration requirement constitutes punishment thereby implicating the eighth amendment to the United States Constitution.

We believe defendant’s reliance on Kennedy is misplaced. Kennedy sets forth the various factors for determining whether a disability constitutes punishment in the context of a fifth amendment due process analysis and did not reach the eighth amendment issue in that case. Kennedy, 372 U.S. at 159-86, 9 L. Ed. 2d at 655-71, 83 S. Ct. at 562-77; see Ingraham v. Wright (1977), 430 U.S. 651, 671-72 n.40, 51 L. Ed. 2d 711, 730 n.40, 97 S. Ct. 1401, 1412-13 n.40.

Moreover, in Ingraham v. Wright (1977), 430 U.S. 651, 51 L. Ed. 2d 711, 97 S. Ct. 1401, the Supreme Court noted that an eighth amendment analysis is appropriate in determining the constitutionality of an alleged punishment where the underlying conduct has already been established through formal criminal proceedings, whereas it is inappropriate to reach an eighth amendment analysis where the alleged punishment has been invoked absent a formal criminal process. (Ingraham, 430 U.S. at 671-72 n.40, 51 L. Ed. 2d at 730 n.40, 97 S. Ct. at 1412-13 n.40, comparing Trop v. Dulles (1958), 356 U.S. 86, 2 L. Ed. 2d 630, 78 S. Ct. 590, with Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 9 L. Ed. 2d 644, 83 S. Ct. 554.) The Court further pointed out that the State does not acquire the power to punish with which the eighth amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process. Ingraham, 430 U.S. at 671-72 n.40, 51 L. Ed. 2d at 730 n.40, 97 S. Ct. at 1412-13 n.40.

Where, as here, the alleged punishment is invoked after a defendant is found guilty, the appropriate analysis to apply in challenging the relevant statutory provision is that under the eighth amendment and not due process. This is equally true in addressing the initial question of whether the challenged provision constitutes punishment. Accordingly, we apply the analysis set forth in Trop v. Dulles (1958), 356 U.S. 86, 2 L. Ed. 2d 630, 78 S. Ct. 590, an eighth amendment case, rather than that provided in Kennedy, a due process case, to the eighth amendment issue in this case.

In applying the analysis set out in Trop to the registration requirement at issue here, we conclude that the registration requirement does not constitute punishment, and therefore, the eighth amendment is not implicated in the first instance. In Trop, the Court stated that in deciding whether a law is penal a court must look to the purpose of the statute. (356 U.S. at 96, 2 L. Ed. 2d at 639, 78 S. Ct. at 595.) If a statute imposes a disability for the purpose of punishment then it is penal, but if it imposes a disability, not to punish, but for some other legitimate governmental purpose then it is nonpenal. (356 U.S. at 96, 2 L. Ed. 2d at 639-40, 78 S. Ct. at 595-96.) While any statute that creates a disability as a consequence of certain conduct may have both a penal and nonpenal effect, the controlling nature of such statutes normally depends on the evident purpose of the legislature. 356 U.S. at 96, 2 L. Ed. 2d at 640, 78 S. Ct. at 596.

The statute at issue here requires a person who meets the definition of a habitual child sexual offender to register with the appropriate local police agency. The pertinent issue, applying the Trop analysis, is whether the legislative purpose of this provision is to punish persons who have been convicted twice for certain child sex offenses within the appropriate time frame or whether the statute accomplishes some other legitimate governmental purpose. We find the legislative debates to be instructive on this issue.

Representative Parke, the House sponsor of this legislation, characterized it as “one of the most important Bills *** in regards to protecting our children.” (84th Ill. Gen. Assem., House Proceedings, June 23, 1986, at 208.) He further emphasized that “this kind of legislation will help our law enforcement agencies stop this kind of carnage on our children. Society demands that we protect our children.” (84th Ill. Gen. Assem., House Proceedings, June 23, 1986, at 208.) Such statements are a clear indication that the purpose of the statute is to aid law enforcement in preventing future sex offenses against children. On the other hand, there is no indication in the legislative history that the registration requirement was intended to serve the purpose of deterrence or retribution, two goals of punishment. Protection of children from sex offenses is very much part of the State’s unquestionable interest in protecting the health, safety and welfare of its citizens. As such, the registration requirement at issue here clearly serves a legitimate governmental purpose.

Furthermore, the purpose served by the registration requirement is so fundamental as to far outweigh any penal effect that the statute might have. The statute places no more constraint on the liberty of someone required to register with the local police authority than do many of the well-established civil disabilities associated with felony convictions in Illinois, such as limitations on possession of firearms, the right to vote or the right to hold public office. (See, e.g., Ill. Rev. Stat. 1987, ch. 38, pars. 24—1.1, 1005—5—5(b), (c).) Although defendant suggests that he will be subject to being hauled before police authorities whenever a child in his chosen community claims to be a victim of a sex offense, such an argument is purely speculative and without any basis in the record. Nor do we perceive the Act to limit or dilute in any way well-recognized constitutional protections ordinarily afforded to anyone who becomes the subject of a police investígation.

Additionally, the statute does not burden defendant’s privacy interests as his convictions will be a matter of public record. Although the statute provides that defendant, as a habitual child sexual offender, register with the local police chief or, if appropriate, the sheriff, it is an offense to make public such registration. Under these circumstances, it cannot be said that the registration requirement will have any significant impact on defendant’s liberty or privacy interests.

In light of the legitimate governmental purpose that the statute was intended to serve and the negligible impact on defendant’s liberty or privacy interests, we hold that the registration requirement is not punishment under the eighth amendment.

Even were we to hold that the registration requirement constitutes punishment, it does not rise to the level of cruel and unusual punishment. As to whether the registration requirement is cruel and unusual, defendant maintains that it is cruel because it provides for punishment after a defendant has served his sentence and because it fails to take into consideration the underlying factual basis for conviction of the specified offenses. He further contends that it violates the proportionality requirement of the eighth amendment.

The eighth amendment prohibition against cruel and unusual punishment “ ‘is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.’ ” (McCleskey v. Kemp (1987), 481 U.S. 279, 300, 95 L. Ed. 2d 262, 283, 107 S. Ct. 1756, 1770, quoting Weems v. United States (1910), 217 U.S. 349, 378, 54 L. Ed. 793, 803, 30 S. Ct. 544, 553.) The basic concept underlying the eighth amendment is that the penalty must accord with the dignity of man. (McCleskey, 481 U.S. at 300, 95 L. Ed. 2d at 283, 107 S. Ct. at 1771.) Additionally, the punishment must be proportional to the offense. McCleskey, 481 U.S. at 300, 95 L. Ed. 2d at 283, 107 S. Ct. at 1770; see Solem v. Helm (1983), 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001.

In the present case, there is simply nothing about the registration requirement that fails to comport with humane justice. Nor does the registration requirement affront the dignity of man. It merely requires an offender who has twice been convicted of a sex offense against a child to register with the appropriate police authority. Such registration is kept confidential and is limited to a 10-year period following either defendant’s sentence or release from custody if he is incarcerated. Further, there is nothing in the Act that would allow local police authorities to use such information to deny defendant his constitutional rights, nor does the Act in any way dilute or impair the well-established constitutional protections afforded a citizen who becomes the subject of a police investigation. It cannot be said that the registration requirement even remotely approaches the outer fringes of inhumane or undignified punishment.

Furthermore, the registration requirement is not disproportionate to the offense. We begin by emphasizing that, outside the context of capital punishment, successful challenges to the proportionality of a particular sentence are exceedingly rare. (Solem, 463 U.S. at 289-90, 77 L. Ed. 2d at 649, 103 S. Ct. at 3009.) Moreover, reviewing courts should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crime. (Solem, 463 U.S. at 290, 77 L. Ed. 2d at 649, 103 S. Ct. at 3009.) In assessing whether a particular sentence is proportional to an offense, we are guided by three-objective criteria: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. (Solem, 463 U.S. at 292, 77 L. Ed. 2d at 650, 103 S. Ct. at 3011.) Applying these factors, and keeping in mind our obligatory deference to the legislature, we believe the registration requirement is not disproportionate under the eighth amendment.

First, for an offender to qualify as a habitual child sex offender under the Act he must have committed, not once but twice, a felony sex offense against a child. There can be no doubt that commission of one such offense, let alone two, is serious as the four qualifying offenses carry severe penalties. More importantly, we can identify no reasoned basis to conclude that someone who twice commits one of the qualifying offenses does not present a very serious threat to society. We can perceive of no group who is deserving of more protection against this type of offender than our children. In contrast to the seriousness of repeated sexual offenses against children, the Act merely requires a repeat offender to register with the local authorities where he lives. As we have repeatedly noted already, concerns of privacy and loss of constitutional protections under the Act are unfounded and speculative.

Second, we compare the sentences imposed on other criminals in Illinois. If more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue is excessive. (Solem, 463 U.S. at 291, 77 L. Ed. 2d at 650, 103 S. Ct. at 3010.) In applying this part of the Solem test, we find the habitual criminal statute (Ill. Rev. Stat. 1987, ch. 38, par. 33B—1) to be instructive. That statute provides for a mandatory life sentence upon conviction of a third offense, either a Class X felony, criminal sexual assault or first degree murder, under the appropriate circumstances. Obviously, in the narrow context of habitual offenders, the Act under consideration provides a far less serious penalty than that provided for under our other habitual criminal statute. Moreover, if we consider other offenses generally, we cannot say that more serious offenses in Illinois are punished equally or less seriously than that provided for in the Act. Clearly, any length of prison term is more serious a penalty than mere registration with local police authorities.

Finally, we consider the sentences imposed in other jurisdictions for repeat child sex offenders. Our research indicates that seven other States currently have some version of a habitual child sex offender or sex offender registration statute. (Ala. Code §13A—11—200 (1989); Ariz. Rev. Stat. Ann. §13—3821 (1988); Ark. Stat. Ann. §12—12—901 (1989); Nev. Rev. Stat. Ann. §207.151 (Michie 1989); Ohio Rev. Code Ann. §2950.02 (Baldwin 1989); Okla. Stat. tit. 57, §582 (1989); Utah Code Ann. §77—27—21.5 (1989).) While a clear majority of States do not presently require sex offenders to register, we think that the number that do is significant. While the defendant here may have been treated less severely in some States, he would have been comparably treated in others. We cannot say that the registration requirement in the Act is so unique as to render it cruel and unusual. More importantly, when we consider all three objective factors, we are compelled to hold that the registration requirement is not disproportional to the underlying offense and does not, therefore, violate the eighth amendment.

We next consider defendant’s contention that the registration requirement is inconsistent with the objective of restoration to useful citizenship contained in article I, section 11, of our State Constitution (Ill. Const. 1970, art. I, §11). We find no merit to this argument, however. We cannot perceive how requiring a habitual child sex offender to register with local police authorities will detract from his rehabilitation, particularly where such registration is required to be kept confidential. In fact, registration is far less of a hindrance to defendant’s restoration to useful citizenship than would be the imposition of a lengthy prison sentence as the consequence of his habitual status. The registration requirement does not violate article I, section 11, of our constitution.

We next address defendant’s equal protection claim under the Federal and State Constitutions. (U.S. Const., amend XIV; Ill. Const. 1970, art. I, §2.) We note at the outset that statutory enactments carry a strong presumption of constitutionality, and all doubts must be resolved in favor of the Act’s validity. (People v. Esposito (1988), 121 Ill. 2d 491, 497, 521 N.E.2d 873.) In considering an equal protection claim, we generally employ a two-step analysis to determine whether a legislative classification deprives an individual of equal protection. (Esposito, 121 Ill. 2d at 499, 521 N.E.2d at 876-77.) Initially, we must determine if the statute under consideration affects a fundamental right or discriminates against a suspect class. (Esposito, 121 Ill. 2d at 499, 521 N.E.2d at 877.) If it does, we subject the legislation to strict scrutiny and uphold it only if it serves a compelling State interest. (Esposito, 121 Ill. 2d at 499-500, 521 N.E.2d at 877.) Here, it is clear that no suspect class is involved. Nor does the registration requirement affect any fundamental right. It does not implicate any right of privacy as it mandates confidentiality, nor does it affect defendant’s liberty beyond mere speculation. Although defendant suggests in a footnote in his brief that it impacts on his fundamental right to travel, he fails to identify how registration under the Act affects such a right. As we cannot identify how the registration requirement affects defendant’s right to travel, or any other fundamental right, we need not apply strict scrutiny in assessing defendant’s equal protection claim.

Because the classification challenged here does not affect a fundamental right or discriminate against a suspect class, the proper standard for judging the statute is the rational basis test. (Esposito, 121 Ill. 2d at 500, 521 N.E.2d at 877.) Under this test, a statutory classification must bear a rational relationship to a valid legislative purpose, and the classification created by the statute will be set aside as violative of the equal protection clause only if based on reasons totally unrelated to the pursuit of a legitimate State goal. (Esposito, 121 Ill. 2d at 500, 521 N.E.2d at 877.) The equal protection clauses of the Federal and State Constitutions do not prohibit our legislature from enacting legislation which affects different classes of persons differently, and, in the absence of involvement of a fundamental right, the legislature may even differentiate between persons similarly situated if there is a rational basis for doing so. Esposito, 121 Ill. 2d at 500-01, 521 N.E.2d at 877.

The legislative purpose in enacting this Act was to protect children from sex offenders and aid law enforcement in doing so. That such a purpose is legitimate is without question. Furthermore, the means chosen by the legislature is rationally related to that legitimate purpose. Requiring habitual child sex offenders to register with local police authorities will allow those authorities to keep abreast of potential threats to the children of a particular community which might be posed by the presence of a habitual child sex offender. While the Act does little more than provide police with the fact that a habitual child sex offender resides within the community, it clearly serves the purpose of protecting our children. The rationality of a particular statute does not depend on its purported effectiveness, but, rather, is determined only by whether it reasonably serves the purpose of the legislature in enacting it. Accordingly, we hold the Act does not violate the equal protection clause of our Federal and State Constitutions.

Finally, we address defendant’s contention that the registration requirement violates due process under the Federal and State Constitutions. (U.S. Const., amend XIV; Ill. Const. 1970, art. I, §2.) In doing so, we are mindful that legislative enactments carry a strong presumption of constitutionality, and the party challenging the statute has the burden of clearly establishing its invalidity. (People v. Lindner (1989), 127 Ill. 2d 174, 178, 535 N.E.2d 829.) We also note that defendant’s due process challenge to the Act is based on substantive rather than procedural due process grounds. In such a case, if the challenged statute does not affect a fundamental right, the appropriate standard of review is the rational-basis test. (Lindner, 127 Ill. 2d at 179, 535 N.E.2d at 831.) As we have already determined that no fundamental right is involved, that the legislature had a legitimate purpose in passing the Act, and that the Act rationally serves that purpose, we must conclude that the Act does not deny defendant due process.

For the foregoing reasons, the order of the circuit court of Du Page County is affirmed.

Affirmed.

INGLIS, J., concurs.

JUSTICE DUNN,

specially concurring:

I concur with the majority’s result; however, I write specially because I believe the Act constitutes punishment under the United States and Illinois Constitutions, though not unconstitutional punishment.

In deciding this issue, the majority, relying on Trop v. Dulles (1958), 356 U.S. 86, 2 L. Ed. 2d 630, 78 S. Ct. 590, stated that the test for deciding whether the Act constitutes punishment is whether the legislative purpose behind the Act was punishment or some other legitimate purpose. I believe the stated purpose of the Act is only one of several factors that must be considered in addressing this question. In Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 9 L. Ed. 2d 644, 83 S. Ct. 554, cited by defendant, the Supreme Court listed several factors that have traditionally been applied to determine whether an Act is penal or regulatory in character. The Court stated:

“Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment-retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in different directions.” Kennedy, 372 U.S. at 168-69, 9 L. Ed. 2d at 661, 83 S. Ct. at 567-68.

The majority declined to address all the Kennedy factors, reasoning that Kennedy was a due process case, not an eighth amendment case, unlike Trop, the case upon which it relied. I fail to see that this distinction bears any significance to the issue at hand. In Kennedy, the court addressed whether divestiture of citizenship for persons who flee the country to evade the draft constituted a penal sanction under which the due process clause would require affording the safeguards of a criminal prosecution. (Kennedy, 372 U.S. at 164, 9 L. Ed. 2d at 658, 83 S. Ct. at 565.) The issue in Kennedy is the same as the issue presented here and in Trop. Is the statute penal in nature? I doubt very much that the Kennedy court would have offered a different set of tests had the issue been over the eighth amendment.

Applying the Kennedy factors to the Act, I find they point in different directions. On the one hand, the Act has an alternative rationale purpose, aiding law enforcement in protecting children against child abuse, and I do not believe the Act is excessive in relation to that purpose. On the other hand, I find the Act imposes an affirmative disability or restraint, it comes into play on a finding of scienter, it applies to behavior that is criminal, and, regardless of the legislature’s stated intent, it will promote traditional aims of punishment-retribution and deterrence. I believe the presence of these factors requires finding that the Act is punishment.

I am not convinced that the Act imposes no more of a constraint on liberty than civil disabilities associated with convicted felons such as limitations on possessions of firearms, the right to vote, or the right to hold public office. In my opinion, the Act imposes a more significant affirmative disability or restraint than is stated by the majority. It is a disability that necessarily entails a loss of privacy. Defendant, if he chooses to start a new life in Illinois after his release from custody, must announce himself as a habitual child sex offender to law enforcement in his community. For 10 years he must live his life knowing that local law enforcement has been made aware of his past child sex abuse convictions. I am not persuaded that defendant suffers no more of a loss of privacy than he would by the public record of his convictions. The Act ensures a certain and direct intrusion that may not necessarily result from defendant’s public record. Nor am I persuaded that the confidentiality provision negates finding a loss of privacy. I find the significant intrusion to be the process under the Act itself, not whether the information may be leaked to the community.

For the above reasons, I find that the Act does constitute punishment under the United States and Illinois Constitutions, though I agree with the majority that it is not unconstitutional punishment. Finally, I note that the. California Supreme Court, in its determination of whether its registration requirement for sex offenders constituted punishment, addressed the issue by analyzing each Kennedy factor and concluded that its registration requirement was punishment. In re Reed (1983), 33 Cal. 3d 914, 919-22, 663 P.2d 216, 217-20, 191 Cal. Rptr. 658, 660-62.