text:
      In re MARRIAGE OF WILLIAM TUCKER FRAZIER, Petitioner-Appellee, and THELMA K. FRAZIER, Respondent-Appellant.
    Fifth District
    No. 5 — 89—0513
    Opinion filed August 28, 1990.

      Mark C. Scoggins, of Crowder & Scoggins, Ltd., of Columbia, for appellant.
    John R. Sprague, Sr., of Sprague & Sprague, of Belleville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

On April 5, 1983, the circuit court of St. Clair County entered a judgment which dissolved the marriage of petitioner, William Tucker Frazier, and respondent, Thelma K. Frazier, and distributed the parties’ property between them. From that judgment, petitioner appealed. This court reversed and remanded with instructions to reevaluate petitioner’s interest in his insurance agency and to redistribute the parties’ marital property. (In re Marriage of Frazier (1984), 125 Ill. App. 3d 473, 466 N.E.2d 290.) A hearing on remand was held on September 12, 1985. On April 4, 1986, the circuit court entered a second judgment order which provided, inter alia, that petitioner be awarded certain personal property having a value now claimed to be $35,285. After petitioner’s post-trial motion was argued and denied, petitioner appealed from the April 4, 1986, order. This court affirmed the circuit court’s judgment on January 5, 1988, and the mandate issued on February 2, 1988. (In re Marriage of Frazier (1988), 164 Ill. App. 3d 207, 517 N.E.2d 775.) Thereafter, correspondence was exchanged between counsel for the parties in which counsel arranged for the execution and exchange of deeds and for petitioner to pick up the personal property awarded him in the 1986 order. In a June 7, 1988, letter from respondent’s attorney, petitioner’s counsel learned for the first time that most of the personal property awarded to petitioner in the April 4, 1986, order had been stolen during a burglary of respondent’s residence on March 17,1986.

On August 22, 1988, petitioner filed a three-count civil action against respondent (Frazier v. Frazier, St. Clair County No. 88 — L— 757), which was subsequently consolidated with this case. A police report contained in the pleadings of the civil action discloses that respondent reported a burglary to her home on March 17, 1986.

On January 6, 1989, petitioner filed a motion in this case to vacate the order of April 4, 1986, pursuant to section 2 — 1401 of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401). On February 1, 1989, respondent filed a motion to dismiss petitioner’s motion to vacate. On June 28, 1989, the circuit court entered an order denying the motion to dismiss, vacating the April 4, 1986, order and setting the matter for trial. Upon the parties’ request for clarification of the June 28, 1989, order, the court, in an order dated July 26, 1989, stated that the scheduled hearing would be held “to consider what, if any, redistribution of property there should be as a result of the [petitioner’s] petition being granted.” Respondent appeals from the circuit court’s June 28, 1989, order.

Section 2 — 1401, formerly section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), permits parties to seek “[r]elief from final orders and judgments, after 30 days from the entry thereof, *** upon petition *** supported by affidavit or other appropriate showing as to matters not of record.” (Ill. Rev. Stat. 1989, ch. 110, pars. 2— 1401(a), (b).) The petition must be filed within two years of the entry of the order or judgment complained of, but the time during which the ground for relief is fraudulently concealed is excluded in computing the two-year period. 111. Rev. Stat. 1989, ch. 110, par. 2 — 1401(c); Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill. 2d 201, 209, 473 N.E.2d 955,

959.

The purpose of section 2 — 1401 is to bring facts not of record to the attention of the trial court which, if known by the court at the time judgment was entered, would have prevented its rendition. (Manning v. Meier (1983), 114 Ill. App. 3d 835, 837-38, 449 N.E.2d 560, 562.) In order to obtain relief under this section, petitioner must set forth specific factual allegations supporting the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting the defense or claim in the original action; (3) that through no fault or negligence of his own, an error of fact or a valid defense or claim was not made known to the trial court at the time the original judgment or order was entered; and (4) due diligence in filing the petition for vacation. (Schmidt v. Seigal Trading Co. (1979), 72 Ill. App. 3d 611, 614, 391 N.E.2d 32, 34.) Motions for relief from judgment are addressed to the sound discretion of the trial court and will not be overturned absent abuse. In re Marriage of Emerson (1983), 115 Ill. App. 3d 712, 717, 450 N.E.2d 987, 991.

Respondent argues that the circuit court erred in denying her motion to dismiss where petitioner failed to plead sufficient facts showing the following: (1) the existence of a meritorious claim; (2) fraud as a basis for tolling the two-year limitations period; and (3) due diligence in filing the petition. Regarding the first contention of error, when a motion to dismiss is filed against a petition for relief under section 2 — 1401, the motion admits all well-pleaded facts and attacks only the legal sufficiency of the petition. (Manning, 114 Ill. App. 3d at 839, 449 N.E.2d at 563.) Here, if the allegations presented in the petitioner’s motion to vacate are taken as true and correct, then the circuit court’s denial of respondent’s motion to dismiss was clearly proper.

Petitioner’s motion under section 2 — 1401 alleged, inter alia, that a burglary of respondent’s residence occurred on March 17, 1986; that during the burglary certain items of property awarded to petitioner by the court’s April 4, 1986, order had been stolen (a description and value for each item were listed in an attached exhibit); that petitioner did not learn of the burglary until June 7, 1988; that the failure of respondent to disclose the burglary resulted in fraud by concealment perpetrated upon the court and upon petitioner; that disclosure of the fact of the nonexistence of the property in question, prior to the April 4, 1986, order, might have resulted in a different disposition of the marital and nonmarital property; and that as a result of the fraudulent concealment by respondent, a fair and equitable division of the marital and nonmarital property was not made by the court in its order of April 4, 1986, to the petitioner’s detriment. Based on these allegations of fact, petitioner sought vacatur of the April 4, 1986, order and a rehearing on the question of the division of marital and nonmarital property or, alternatively, modification of the order so as to establish a “fair and equitable division” of the parties’ property.

We find that petitioner’s motion satisfies the necessary requirements of the statute. It pleads facts which were not known to petitioner until more than 30 days after the entry of the April 4, 1986, order and which, had they been known and proven, would have entitled him to the relief sought. See Deahl v. Deahl (1973), 13 Ill. App. 3d 150, 159, 300 N.E.2d 497, 504.

Contrary to respondent’s contention, it was not necessary for petitioner to indicate whether he obtained compensation through insurance on the property. Rather, as the circuit court stated:

“[Petitioner] claims that [respondent’s non-disclosure resulted in injury to him in the amount of $35,285.00. The issue is not whether [petitioner] can prove his claim; the issue is whether [petitioner] is entitled to try to do so. The Court believes [petitioner] is entitled to attempt to prove his claim.”

We agree.

Respondent further argues that petitioner’s allegations of fraudulent concealment are insufficient to toll the limitations period under section 2 — 1401, where the petition “shows mere silence on the part of [respondent] until more than two (2) years after the April 4, 1986 Judgment,” citing Dils v. City of Chicago (1978), 62 Ill. App. 3d 474, 378 N.E.2d 1130. In Dils, the court held that plaintiff’s mere silence or fa.ilure to disclose a default judgment entered against defendant until the two-year limitation period for filing a petition to vacate had run was insufficient to constitute fraudulent concealment. (62 Ill. App. 3d at 478, 378 N.E.2d at 1134.) However, we agree with the circuit court that:

“There is a huge distinction between failure to disclose a judgment in a case in which the section 2 — 1401 petitioner had filed an answer and third-party complaint and participated in some of the court proceedings, as was the case in Dils *** and the instant case wherein [respondent] had knowledge of the theft of substantial property and failed to disclose the same prior to the Court’s Order disposing of the property, prior to the hearing on the Post-Trial Motion, prior to the disposition of the case in the Appellate Court almost two years later, and prior to the execution of the deeds to [respondent] by [petitioner] pursuant to the Order.”

It is clear that a judgment of dissolution of marriage may be vacated or modified if procured through fraud. (Roth v. Roth (1970), 45 Ill. 2d 19, 23, 256 N.E.2d 838, 840.) Fraudulent concealment consists of affirmative acts or misrepresentations intended to exclude suspicion or prevent injury. (Dils, 62 Ill. App. 3d at 478, 378 N.E.2d at 1134.) However, nondisclosure of a material fact is “in essence a misrepresentation.” Garmisa v. Garmisa (1972), 4 Ill. App. 3d 411, 423, 280 N.E.2d 444, 452.

In Deahl, the ex-husband defendant filed a petition seeking to vacate or modify the divorce decree and the ex-wife plaintiff filed a motion to strike. Defendant’s petition alleged that plaintiff had intentionally concealed from the court and from defendant the fact that she was about to remarry and that 31 days after the divorce decree was entered, plaintiff remarried. In reversing the circuit court’s denial of defendant’s petition, the Deahl court stated:

“Although the present case does not disclose that plaintiff affirmatively denied any intention to remarry ***, the nondisclosure of her immediate intention to remarry constituted an affirmative withholding of a material fact which was vital for the judge to know in determining whether to decree periodic alimony payments terminable upon remarriage, or an award of alimony in gross which would not be so affected.” 13 Ill. App. 3d at 159-60, 300 N.E.2d at 504.

Here, respondent’s nondisclosure of the theft of the property in question similarly constituted “an affirmative withholding of a material fact which was vital for the judge to know” in deciding the distribution of the parties’ property. Therefore, although petitioner’s motion to vacate was filed beyond the two-year limitation period, it alleged sufficient facts constituting fraudulent concealment to toll the running of the statutory period.

Respondent’s claim that the petitioner failed to act with due diligence by filing his petition nearly seven months after learning of the basis therefor is also without merit. It is true that petitioner filed his section 2 — 1401 motion on January 6, 1989, almost seven months after his counsel received respondent’s counsel’s June 7, 1988, letter disclosing the disappearance of the petitioner’s property. However, the record reveals that petitioner filed his civil suit to recover the property or its value on August 22, 1988, less than three months after learning of the burglary. As those pleadings have been consolidated with the instant case, the circuit court did not abuse its discretion in holding that petitioner exercised due diligence in this matter. (See Deahl, 13 Ill. App. 3d at 159, 300 N.E.2d at 504 (defendant was not lacking in diligence nor was he negligent in filing petition less than four months after discovery of plaintiff’s remarriage).) Further, when justice and fairness require, a judgment may be vacated even though the requirement of due diligence has not been satisfied. Manning, 114 Ill. App. 3d at 838, 449 N.E.2d at 562.

Respondent’s final contention on appeal is that the circuit court erred in granting petitioner the relief requested without a hearing and without an answer having been filed. A petition to vacate a judgment under section 2 — 1401 commences an entirely new proceeding and is not merely a continuation of the original proceeding. The new proceeding is subject to the usual and ordinary rules of civil practice. (Manning, 114 Ill. App. 3d at 840, 449 N.E.2d at 564.) Where a motion to dismiss under section 2 — 1401 is denied, the court should allow the moving party a chance to answer the allegations contained in the petition. (114 Ill. App. 3d at 840, 449 N.E.2d at 564; Reuben H. Donnelley Corp. v. Thomas (1979), 79 Ill. App. 3d 726, 731, 398 N.E.2d 972, 976.) If the central facts of the petition are controverted, an evidentiary hearing must be held. (Yorke v. Stineway Drug Co. (1982), 110 Ill. App. 3d 1009, 1014, 443 N.E.2d 644, 648.) However, the central facts of a section 2— 1401 petition are not those which would establish the underlying action but rather facts which are sufficient merely to support an order vacating the judgment. 110 Ill. App. 3d at 1014, 443 N.E.2d at 648; Manning, 114 111. App. 3d at 840, 449 N.E.2d at 564.

In the instant case, the central facts are not controverted. Respondent has admitted both in her briefs on appeal and in oral argument that she knew the subject property was stolen before the April 4, 1986, order was entered and at the time of the post-trial motion hearing and did not make the court or petitioner aware of this material fact. It would be senseless to remand this matter to the circuit court for an evidentiary hearing as was necessary in Manning (114 Ill. App. 3d at 840, 449 N.E.2d at 564), as there are sufficient admitted facts to warrant the vacatur of the April 4, 1986, order, distributing the parties’ marital and nonmarital property. What, if any, redistribution of the property will be necessary is not here at issue. (See Yorke, 110 Ill. App. 3d at 1014-15, 443 N.E.2d at 648.) We conclude, therefore, that the circuit court did not err in denying respondent’s motion to dismiss and granting petitioner’s motion to vacate without an evidentiary hearing.

For the foregoing reasons, we affirm the judgment of the circuit court of St. Clair County and remand for further proceedings.

Affirmed and remanded.

CHAPMAN and WELCH, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LEWIS

license: Public Domain

text:
    RICK MOORE et al., Appellants, v. THE POLLUTION CONTROL BOARD et al., Appellees.
    Fifth District
    No. 5 — 88—0684
    Opinion filed August 29, 1990.

      Thomas L. Kilbride, of Klockau, McCarthy, Ellison & Marquis, P.C., of Rock Island, for appellants.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, of Chicago, and James L. Morgan, Assistant Attorney General, of Springfield, of counsel), for appellee Pollution Control Board.
    Immel, Zelle, Ogren, McClain, Germeraad & Costello, of Springfield (Thomas J. Immel, of counsel), for appellee Daubs Landfill, Inc.
   PRESIDING JUSTICE LEWIS

delivered the opinion of the court:

This is the second appeal in this case, which arises out of the approval, by the Wayne County Board, of site location suitability for a new regional pollution control facility. Earlier, in Daubs Landfill, Inc. v. Pollution Control Board (1988), 166 Ill. App. 3d 778, 520 N.E.2d 977 (Daubs I), we held that, despite an error in the legal description of the proposed landfill location, notice was sufficient to vest the county board with jurisdiction where the narrative description of the property was otherwise accurate as stated in the notice of request that was mailed to adjoining landowners and published in the local newspaper. On April 8, 1986, Daubs Landfill, Inc. (hereafter referred to as Daubs), had filed an application for location approval for a regional pollution control facility. Following a hearing the application was approved by the Wayne County Board in findings filed on September 30, 1986. Upon review initiated by a petition filed with the Pollution Control Board (hereafter referred to as PCB) on November 6, 1986, the PCB had determined that the Wayne County Board lacked jurisdiction to proceed because of the descriptive defect in the notice of request for site location approval prepared by Daubs, sent to adjoining landowners, and published in the Wayne County Press. In Daubs I we reversed the order of the PCB vacating the siting approval of the Wayne County Board and remanded the cause for consideration of the remaining issues that had been raised for the PCB’s review by the appellants, Rick Moore and Leonard Morris.

Upon remand the PCB found that there was no fundamental unfairness in the proceeding before the Wayne County Board and that the county board’s decision concerning the statutory criteria of section 39.2(a) of the Environmental Protection Act (Ill. Rev. Stat. 1985, ch. 1111/2, par. 1039.2(a)) (hereafter referred to as the Act) was not against the manifest weight of the evidence. In an order adopted June 2, 1988, the PCB affirmed the decision of the Wayne County Board granting site location suitability approval to Daubs.

Following the PCB’s affirmance, the appellants moved on July 7, 1988, to vacate the order of June 2, 1988. In that motion appellants stated, for the first time, that the applicant, by failing to serve notice of its request for location approval upon the Wayne County Bank and Trust Company, had failed to perfect service of notice upon all property owners within the subject area not solely owned by the applicant and on the owners of all property within 250 feet in each direction of the lot line of .the subject property, as required by section 39.2(b) of the Act (Ill. Rev. Stat. 1985, ch. llllk, par. 1039.2(b)). Section 39.2(b) states in pertinent part:

“No later than 14 days prior to a request for location approval the applicant shall cause written notice of such request to be served either in person or by registered mail, return receipt requested, on the owners of all property within the subject area not solely owned by the applicant, and on the owners of all property within 250 feet in each direction of the lot line of the subject property, said owners being such persons or entities which appear from the authentic tax records of the County in which such facility is to be located ***.”

The appellants attached as an exhibit to their motion an unnotarized “Certification of Tax Record Ownership of Property,” dated June 24, 1988, and signed by Imogene Brown, supervisor of assessments, Wayne County, Illinois. In the “Certification” is the statement that she had determined that for the entire year of 1986 the owner of two parcels in section 5 of township 2 south, range 7 east, was Wayne County Bank and Trust Company, as shown by the authentic tax records for 1986. The subject site was located in section 5. The appellants asserted that, inasmuch as the affidavit of mailing, dated March 7, 1986, listing property owners who received the prefiling notice, omits the name of Wayne County Bank and Trust Company, the applicant’s failure to serve notice on the Wayne County Bank and Trust Company constitutes a jurisdictional defect in the prior proceedings, “divesting” the Wayne County Board and the PCB of jurisdiction. The appellants asked that the PCB’s order of June 2, 1988, be vacated on jurisdictional grounds. In the alternative appellants asked the PCB to “remand and reopen this cause for further proceedings on the issue of perfection of service on all property owners and for other appropriate relief.”

Upon Daubs’ objections to the appellants’ motion to vacate, the PCB directed the parties to submit briefs concerning the jurisdictional issue. Thereafter, following the submission of briefs, on October 6, 1988, with one member dissenting, the PCB entered an order in which it found that “this jurisdictional claim cannot be raised at this late date.” The PCB distinguished subject matter jurisdiction, which may, it said, be contested at any time, from jurisdiction of the particular case, stating that “jurisdiction of the subject matter does not mean simple jurisdiction of the particular case, but jurisdiction of the class of cases to which that individual case belongs.” The PCB concluded that

“the only jurisdictional claim which could be raised for the first time at this point in the proceeding is a claim that the Wayne County Board does not have jurisdiction over petitions for local siting approval. Pursuant to Section 39.2 of the Act the Wayne County Board is the only body which can have jurisdiction over applications for approval of sites within Wayne County which are outside any municipal boundary. Petitioners do not contend otherwise. This Board cannot now consider a claim that certain notice was not given when that claim has never been advanced before. The proper time to raise such a claim is before the County Board or in a petition to this Board for review of siting approval, not in a motion to vacate filed nearly two years after the County Board’s decision.”

In his dissent Chairman Dumelle observed that section 39.2(b) of the Act sets forth the notice requirements of a site location suitability application, requirements which have been held to be, he says, “jurisdictional,” citing, inter alia, Browning-Ferris Industries of Illinois, Inc. v. Pollution Control Board (1987), 162 Ill. App. 3d 801, 516 N.E.2d 804, Concerned Boone Citizens, Inc. v. M.I.G. Investments, Inc. (1986), 144 Ill. App. 3d 334, 494 N.E.2d 180, Village of Lake in the Hills v. Laidlaw Waste Systems, Inc. (1986), 143 Ill. App. 3d 285, 492 N.E.2d 969, and Kane County Defenders, Inc. v. Pollution Control Board (1985), 139 Ill. App. 3d 588, 487 N.E.2d 743. He would, he said, hold that the action of the Wayne County Board on the application was void ah initio:

“Consistent with the strict interpretation of the notice requirements as jurisdictional requirements articulated in the above-cited cases, I believe that if indeed the Wayne County Bank was the owner of parcels of the subject site, as evidence [sic] by the authentic tax records of the County, and the Wayne County Bank was not served with notice, then the Wayne County Board was without jurisdiction to hear the application and grant its approval thereon. Likewise, this Board is without jurisdiction to review the Wayne County approval.”

The appellants have appealed to this court raising three issues for review: (1) whether the applicant, Daubs, “perfected all jurisdictional pre-filing notice requirements and whether appellants may raise the jurisdictional defect before the Illinois Pollution Control Board”; (2) whether the flood-plain decision is against the manifest weight of the evidence absent flood-proofing plans or a determination of the 100-year flood plain and whether the PCB’s affirmance of the flood-plain decision allows an impermissible delegation of statutory authority; and (3) whether the decisions concerning minimal effect on surrounding property values, traffic plan, and operational plans are against the manifest weight of the evidence or otherwise contrary to law.

Concerning the first issue presented, that is, the question pertaining to jurisdiction, the appellants contend that in Daubs I we held that “subject matter jurisdictional notice requirements are the statutory requirements specifically identified in the statute.” Appellants maintain that the right to assert a jurisdictional issue exists at any time and in any proceeding, directly or collaterally, and that this rule is applicable to administrative proceedings. They conclude that

“[t]he statutory scheme is clear that the perfection of pre-filing notices is a condition precedent. The Wayne County Board’s jurisdictional authority is limited by statute, and absent proof of compliance with the statutory notice requirements, the Wayne County Board had no subject matter jurisdiction in this particular siting proceeding.”

The appellee PCB argues that it properly denied appellants’ jurisdictional challenge as untimely and as having been waived because the jurisdictional challenge here addresses not subject matter jurisdiction but jurisdiction of the case. A challenge to subject matter jurisdiction, it says, may be raised at any time, “even as late in the process as it was in this case,” whereas a challenge to jurisdiction of the case is waived unless timely made. The PCB urges that defects of notice affect a county board’s jurisdiction of the case, not its jurisdiction of the subject matter of a suit, for the reason that compliance with the notice requirements is necessary only to vest a county board with jurisdiction over a particular application.

The appellee Daubs takes the position that the appellants’ newly raised jurisdictional argument is barred by res judicata. Daubs argues that the appellants “have not raised a subject matter jurisdiction argument which can be brought up ‘at any time’ ” and have waived the issue. Daubs urges further that not only could the PCB not properly give any consideration to appellants’ proffered certification inasmuch as it is outside the record for review but the certification, taken at face value, is not dispositive of any issue.

Once a question of jurisdiction of the subject matter of a suit has been determined on appeal, just as it cannot be attacked collaterally in a later proceeding, it cannot be attacked in a later appeal; the doctrine of res judicata is fully applicable and precludes the raising of the issue. (Sidwell v. Sidwell (1975), 28 Ill. App. 3d 580, 328 N.E.2d 595.) Similarly, where the question of the personal jurisdiction of the court has been raised and decided, the adjudication of the issue precludes the raising of the question again. (State Bank v. Reardon (1939), 301 Ill. App. 248, 22 N.E.2d 716.) Where litigation is prosecuted to an appellate tribunal and questions of law are decided, all questions relating to the same subject matter which were open to consideration and could have been presented are res judicata. (Finley v. Crossley (1953), 414 Ill. 105, 110 N.E.2d 255.) In general, the principles of res judicata apply to questions of jurisdiction as well as to other matters — whether it be jurisdiction of the subject matter or of the parties. (Sunshine Anthracite Coal Co. v. Adkins (1940), 310 U.S. 381, 84 L. Ed. 1263, 60 S. Ct. 907; Treinies v. Sunshine Mining Co. (1939), 308 U.S. 66, 84 L. Ed. 85, 60 S. Ct. 44.) In Richardson v. Ainsa (1910), 218 U.S. 289, 54 L. Ed. 1044, 31 S. Ct. 23, Mr. Justice Holmes, delivering the opinion of the court, stated that it was not open to the appellant to urge the point of the district court’s jurisdiction, the point having already been decided against the appellant in that very case under the name of Ainsa v. New Mexico & Arizona R.R. Co., No. 2 (1899), 175 U.S. 76, 44 L. Ed. 78, 20 S. Ct. 33; the prior appeal involved the question whether, since the Act of Congress of March 3, 1891, establishing the Court of Private Land Claims, the courts of the Territory of Arizona had jurisdiction, as between private parties, to determine whether a Mexican grant was complete and perfect before the cession by Mexico to the United States.

In Champaign County v. Reed (1883), 106 Ill. 389, which was the second appeal in the cause of action, the appellant contended that the circuit court had no power, on appeal, to exercise the functions of the county board as set forth in certain statutory provisions. The purchaser of land at a tax sale had applied to the county board for a refund of taxes he had paid on the ground that the lots had been assessed before they had become taxable. His claim having been disallowed by the county board, he appealed to the circuit court, which entered a judgment in his favor and against the county, which brought the initial appeal in the case, Champaign County v. Reed (1881), 100 Ill. 304. In that initial appeal the supreme court reversed the judgment and remanded the cause because it did not sufficiently appear from the record that the purchase money for the property in question had not been paid and that the contract for the sale of the land by the railroad had been forfeited and canceled. In the opinion of the court in the first appeal, the land in question would have been taxable if the purchase money had been paid. Thereafter, in the second appeal of the cause, the supreme court stated that, since “[i]t now appears” that the contract was forfeited and canceled and that no part of the principal of the payments to be deferred under the contract had ever been paid, the land in question was not subject to taxation. (Reed, 106 Ill. at 391.) In that second appeal the supreme court concluded that the judgment of the circuit court had been correct. Of the appellant’s jurisdictional claim in the second appeal, the court said as follows:

“The point is made that the circuit court did not have jurisdiction of the matter in controversy by appeal. It is now too late to raise that question. That proposition was before this court in the former appeal, and necessarily determined in remanding the case to the circuit court, and we will not now listen to it upon the second appeal.” 106 Ill. at 392.

In Finley v. Crossley (1953), 414 Ill. 105, 110 N.E.2d 255, which was the third appeal in a cause of action, the case originated as a partition suit. From an order denying a motion to vacate a decree of partition and a decree of sale, an appeal to the supreme court by one of the defendants resulted in an affirmance of the order of the trial court. (Finley v. Crossley (1951), 409 Ill. 435, 100 N.E.2d 606.) Thereafter, the same defendant filed a bill of review in the trial court challenging the jurisdiction of the court to enter the decree. The bill was dismissed by the trial court. On appeal, in Lee v. Finley (1953), 413 Ill. 445, 109 N.E.2d 772, the second appeal in that cause of action, the appellant raised the issue that the original partition decree was void for want of jurisdiction. The contention was founded upon the assertion that the plaintiffs in that proceeding alleged that they were the sole owners of the land and that no other person had any interest therein. The court noted its holding in Reynolds v. McCurry (1881), 100 Ill. 356: where it appears in a partition suit that the plaintiff is the sole owner of lands, a court has no jurisdiction of the subject matter of the suit to award partition. The court in Lee concluded that the allegations of the complaint in question were sufficient to confer jurisdiction on the trial court and that, the supreme court having determined in an action in which the defendant was a party that he had no interest in the land, he was in no position to raise the question. In the third appeal, Finley v. Crossley (1953), 414 Ill. 105, 110 N.E.2d 255, the defendant appealed from the decree of the trial court approving the master’s report of sale. One of the issues presented for review was the lack of jurisdiction, which, like the other issue presented, the court said, had been decided adversely to the appellant in the second appeal. Relying upon the rule, set forth above, that, where litigation is prosecuted to an appellate tribunal and questions of law are decided, all questions relating to the same subject matter that were open to consideration and could have been presented are res judicata, the court held that its judgments in the earlier appeals were res judicata and affirmed the decree of the trial court.

In Sidwell v. Sidwell (1975), 28 Ill. App. 3d 580, 328 N.E.2d 595, the husband had earlier secured an ex parte divorce in Arkansas. Thereafter the wife filed suit in Illinois seeking, inter alia, to settle property disputes, rights to alimony, and attorney fees. Upon appeal in Sidwell v. Sidwell (1971), 132 Ill. App. 2d 1055, 271 N.E.2d 115, which was the second appeal in the case, the court held that she was entitled to have her rights arising out of the dissolution of the marriage adjudicated, stating:

“The wife, in her proposed amended complaint, alleges that the husband secured an Arkansas divorce. As the pleadings now stand, the parties are committed to the validity of the Arkansas divorce. Upon the authority of Schwarz [Schwarz v. Schwarz (1963), 27 Ill. 2d 140, 188 N.E.2d 673] the wife may bring an action for the determination of equities in property and of alimony and attorneys fees where the marital status has been determined by a valid ex parte foreign decree, but such latter court was without personal jurisdiction to determine equities in property or alimony.
*** The order of the trial court in denying the wife leave to file an amended complaint seeking a division of the property, alimony and attorney fees is reversed and this cause is remanded with direction that the motion to file such amended complaint be granted.” (Sidwell, 132 Ill. App. 2d at 1058, 271 N.E.2d at 118.)

Thereafter the wife filed an amended complaint. Following judgment by the trial court, the husband appealed, raising, among other issues, the question whether the Arkansas court, which had granted the divorce, had jurisdiction over the property claims, thereby excluding Illinois courts’ jurisdiction. The husband contended that the wife’s complaint should nonetheless have been dismissed because the Arkansas divorce was not, in fact, ex parte, for the reason that the wife had made, not a special, but a general, appearance in Arkansas, thereby giving the Arkansas court personal jurisdiction and precluding the wife from seeking the relief she had sought in Illinois courts. The reviewing court reasoned:

“In the second Sidwell appeal, the question directly presented to this court was whether the trial court could adjudicate the rights which arose upon dissolution of the marriage. In that appeal, defendant contended the trial court did not have jurisdiction, although he did not rely on the exact grounds presented here. Defendant could have raised the issue he presents at any time since the 1967 divorce. He did not choose to do so until one appeal and numerous court appearances later.
The issue of the trial court’s jurisdiction has already been finally adjudicated. It cannot again be raised by defendant at this late date.
‘A court’s jurisdiction having been once attacked, the former adjudication precludes the raising of the question again. (Chicago Title and Trust Co. v. National Storage Co., 260 Ill. 485, 103 N.E.2d 227.) The doctrine of res adjudicata and estoppel applies not only to all matters that were litigated, but to all others that might have been presented in that proceeding. Cases will not be entertained and tried piece-meal.’ Chamblin v. Chamblin, 362 Ill. 588, 592, 1 N.E.2d 73, 74-75.” 28 Ill. App. 3d at 583, 328 N.E.2d at 598.

In the instant appeal the appellants contend, as they did in Daubs I, that notice was defective. There we held that the notice given was sufficient to vest the Wayne County Board with jurisdiction. Whether the jurisdiction in question is, as the appellants here assert, subject matter jurisdiction, it is plainly the same kind of jurisdiction challenged in the earlier appeal, relating as it does to the requirements of notice set forth in section 39.2(b) of the Act. We need not and do not decide whether such notice requirements have a bearing upon subject matter jurisdiction. The common law of Elinois establishes that, where the question of jurisdiction, whether it be jurisdiction of the subject matter or of the parties, has been raised and decided, the adjudication of the issue precludes the raising of the question again. This question of law was decided in Daubs I, and all questions relating to it that were open to consideration and could have been presented, such as the instant one based on information plainly available in the tax records for 1986, are res judicata. Thus, the issue was not properly before the PCB for consideration upon remand and will not be considered in this second appeal to this court.

With respect to the second issue appellants present, that pertaining to the flood-plain decision, they maintain that the record contains no flood-proofing plan and no evidence that the site is outside the 100-year flood plain, thereby rendering the flood-plain decision against the manifest weight of the evidence. The PCB and Daubs both assert that the decision was not against the manifest weight of the evidence.

The proper standard of review for the decision of the county board is whether the decision is against the manifest weight of the evidence. (Tate v. Pollution Control Board (1989), 188 Ill. App. 3d 994, 544 N.E.2d 1176.) A decision is against the manifest weight of the evidence if the opposite result is clearly evident, plain, or indisputable from a review of the evidence. (Tate, 188 Ill. App. 3d 994, 544 N.E.2d 1176.) The province of the hearing body is to weigh the evidence, resolve conflicts in testimony, and assess the credibility of the witnesses; a reviewing court is not in a position to reweigh the evidence but can merely determine if the decision is against the manifest weight of the evidence. (Tate, 188 Ill. App. 3d 994, 544 N.E.2d 1176.) The manifest weight standard of review also covers appellate court review of decisions by the PCB. Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 122 Ill. App. 3d 639, 461 N.E.2d 542.

At the time the application for approval in this case was filed in 1986, section 39.2(a)(iv) (Ill. Rev. Stat. 1985, ch. 1111/2, par. 1039.2(a)(iv)) of the Act provided that the county board shall approve the site location suitability for a new regional pollution control facility only if, among the seven criteria listed in subsections 39.2(a)(i) through (vii) (Ill. Rev. Stat. 1985, ch. 1111/2, pars. 1039.2(a)(i) through (a)(vii)):

“the facility is located outside the boundary of the 100 year flood plain as determined by the Illinois Department of Transportation, or the site is flood-proofed to meet the standards and requirements of the Illinois Department of Transportation and is approved by that Department.”

Thereafter section 39.2(a)(iv) was amended by Public Act 85 — 654 to provide, effective September 20, 1987, that the county board shall approve the site location suitability of such a facility only if “the facility is located outside the boundary of the 100 year flood plain or the site is flood-proofed.” Ill. Rev. Stat. 1987, ch. 1111/2, par. 1039.2(a)(iv).

Included in the record as exhibit No. 127 is a letter dated May 28, 1986, from the Illinois Department of Transportation to counsel for the applicant. The letter states in relevant part:

“Inasmuch as the site is located in a rural area and on a stream with a drainage area of less than ten square miles, an Illinois Department of Transportation, Division of Water Resources permit will not be required for the landfill.
With regard to Section 39.2 of the Illinois Environmental Protection Act, this letter constitutes Illinois Department of Transportation approval upon your receipt of all appropriate Illinois Environmental Protection Agency approvals.”

The appellants assert that this letter contains no affirmative statement that the Illinois Department of Transportation determined that the site is outside of the 100-year flood plain or that the site is flood proofed to meet any of the department’s standards and requirements.

In its order of June 2, 1988, the PCB noted as follows:

“At the time of the instant request for site approval, the fourth criterion established by Section 39.2 was whether the facility is located outside the boundary of the 100 year flood plain as determined by the Illinois Department of Transportation (IDOT) or the site is floodproofed to meet the standards and requirements of IDOT and approved by it. Petitioners allege that the proposed facility does not meet this criterion because IDOT has not found that the facility is outside the 100 year flood plain and Daubs did not submit any flood-proofing plans to IDOT. Petitioners submit that under the statute, only IDOT can make these determinations, and maintain that no finding was made on either issue.”

With regard to the appellants’ contentions, the Board reasoned as follows:

“The statutory mandate of reliance on IDOT determinations to satisfy criterion four has been a difficult issue, and the legislature recently amended Section 39.2 so as to remove IDOT from the statutory language. (P.A. 85 — 654, effective September 20, 1987.) However, the statute as it existed at the relevant time gave IDOT the sole power to make determinations on the flood plain issue. This Board has previously held that criterion four has been solely delegated by the legislature to IDOT, and that a county board is required to accept IDOT’s determination. Board of Trustees of Casner Township v. County of Jefferson, 63 PCB 297 (PCB 84 — 175; April 4, 1985); see also Concerned Neighbors for a Better Environment v. County of Rock Island, 67 PCB 427 (PCB 85 — 124; January 9, 1986). The letter sent to Daubs’ attorney is the same type which IDOT has repeatedly issued in landfill siting cases, and does indeed constitute IDOT’s findings on the statutory issues. The Wayne County Board was required to accept IDOT’s determination; thus, it cannot be said that the County Board’s decision on criterion four was against the manifest weight of the evidence.”

We agree with the reasoning expressed by the PCB and consider the decision of the Wayne County Board under these circumstances not to have been against the manifest weight of the evidence as to this criterion.

The appellants assert further with regard to this issue concerning the flood-plain criterion that the PCB’s “affirmance” of the “letter” from the Illinois Department of Transportation allows an impermissible delegation of statutory authority in that the Illinois Department of Transportation deferred its approval of the flood-plain criterion to the Illinois Environmental Protection Agency. In light of the reasoning of the PCB expressed above in its order of June 2, 1988, we consider this contention by the appellants to be unmeritorious.

With respect to the final issue presented for our review, the appellants urge that the decision of the Wayne County Board and the PCB’s affirmance thereof with regard to criteria three, five, and six of section 39.2(a) are against the manifest weight of the evidence.

Section 39.2(a)(iii) of the Act provides that the county board shall approve the site location suitability for a new regional pollution control facility only if “the facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property.” (111. Rev. Stat. 1985, ch. HV-k, par. 1039.2(a)(iii).) Appellants state that Galen Wells, the real estate appraiser who testified for the applicant concerning the character and value of real estate in the area, failed to assess the actual values of the surrounding properties and merely concluded that the impact of the proposed facility would be negligible; if this witness did not assess the existing value of surrounding property, they argue, “there can be no conclusion on the ‘effect’ on the value of the surrounding property.” Although appellants take the position that the applicant did not comply with the “threshold test of determining

. the ‘value’ of the surrounding property,” they cite no authority in support of their position and advance no persuasive argument for such a requirement. In its opinion the PCB made the following observations:

“[I]t is apparent that Mr. Wells did testify that he believed that the proposed facility would not have an adverse impact on property values in the area (R. at 11), and that any impact the facility might have on property values would be negligible (R. at 14). Mr. Wells’ conclusions were based on a review of the plans for the facility, his understanding of the proposed operation of the facility, and visits to an existing landfill and a closed landfill in Wayne County. (R. at 14-17.) Mr. Wells stated that a number of newer homes had been built close to those sites, and that this fact led him to believe that those landfills had not had much effect on property values. (R. at 9-11.) On the other hand, the Board has been unable to locate any evidence or testimony presented by petitioners which would even rebut Mr. Well’s [sic] testimony. The Board cannot find that the County Board’s decision on criterion three was against the manifest weight of the evidence. Simply put, there was no evidence against Daubs’ position for the County Board to even consider.”

Our review of the entire record, including the testimony of Mr. Wells, reveals that the PCB has accurately and fairly described the evidence concerning this criterion. In light of this evidence, it was not against the manifest weight of the evidence for the PCB to affirm the Wayne County Board’s approval of site location suitability with respect to this criterion.

The fifth criterion set forth in section 39.2(a) of the Act is that “the plan of operations for the facility is designed to minimize

the danger to the surrounding area from fire, spills, or other operational accidents.” (Ill. Rev. Stat. 1985, ch. 1111/2, par. 1039.2(a)(v).) The appellants contend that there is no evidence in this proceeding of any operational plan or evidence of any reasonable efforts to minimize danger from fire, spills, or other operational accidents. In its opinion the PCB stated as follows with regard to the evidence adduced at the hearing before the county board concerning criterion five:

“Daubs presented testimony from Mr. [Michael] Rapps [a professional engineer] on this criterion. Mr. Rapps stated that the facility would guard against fire by covering the trash with the required daily cover and by refusing to accept any ‘hot’ loads, and further noted that city water is available along the road to the east of the facility. Mr. Rapps stated that he was recommending that Daubs confer with the local fire protection district and install a fire hydrant where recommended. (R. at 110.) As to spills, Mr. Rapps testified that because the facility will not accept liquid waste, there would be no danger of spills. (R. at 110-111.) Mr. Rapps then specifically stated that he believed that the plan of operation will minimize the danger to the surrounding area from fire, spills and other operational accidents. (R. at 111-112.) Petitioners did not present any testimony to rebut Mr. Rapps’ testimony; indeed their challenge on criterion five is based upon an alleged lack of ‘meaningful detail’ in the plan of operations and not upon any claim that Mr. Rapps’ testimony was unbelievable or flawed. Based upon a review of the record, the Board finds that the Wayne County Board could reasonably have accepted Mr. Rapps’ testimony and found that criterion five was satisfied.”

Once again, our review of the record shows that the PCB has correctly described the evidence pertaining to this criterion. In view of the evidence contained in the record, affirmance by the PCB of the Wayne County Board’s approval of site location suitability with respect to this criterion may not be said to be against the manifest weight of the evidence.

The sixth criterion set forth in section 39.2(a) of the Act is that “the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows.” (111. Rev. Stat. 1985, ch. IIIV2, par. 1039.2(a)(vi).) Appellants maintain that there is no traffic plan and that Daubs and the PCB have simply misapplied the criterion pertaining to traffic patterns. In its opinion the PCB observed with respect to the evidence adduced concerning criterion six:

“Rex Daubs [the applicant] testified as to the traffic in the area. He stated that there are two roads leading to the site: one from Route 45 and one from Route 15. The access road to the landfill itself will be off the north-south road that connects with route 15. (R. at 186, 188.) Mr. Daubs testified that these roads are traveled by oil field equipment, tank trucks, farm machinery, and personal trucks and cars. (R. at 187.) Mr. Daubs further testified that he felt that the two roads to the site are adequate to minimize the impact on existing traffic flows; that the north-south road off which the access road to the landfill will be built is not heavily traveled; and that a truck pulling out or off of that north-south road would not cause any hazard to other traffic. (R. at 187-188.) Petitioners presented testimony from the township road commissioner, who stated that the north-south road has an oil surface, has a five ton weight limit from January through April, and that trucks over that weight would tear up the road. (R. at 257-260.)
It is true that the evidence presented by Daubs on this criterion is a bit sketchy. However, given the manifest weight standard of review, the Board cannot say that the County Board could not have reasonably decided that criteria six had been satisfied. The record contains evidence on both sides of the issue, and the County Board apparently chose to give Mr. Daubs’ testimony greater weight.”

Having examined all of the evidence pertaining to criterion six upon review, which is accurately reflected in the opinion of the PCB, we cannot say that the PCB erred in its assessment of this evidence and that its affirmance was against the manifest weight of the evidence.

Affirmed.

RARICK and CHAPMAN, JJ., concur.


author: JUSTICE WELCH JUSTICE RARICK,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY SEAMAN, Defendant-Appellant.
    Fifth District
    No. 5-88-0357
    Opinion filed August 30, 1990.

      RARICK, J., specially concurring.
    Clyde L. Kuehn, of Kuehn & Rhein, of Belleville, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, Terry Seaman, appeals from his convictions on March 29, 1988, on counts of attempted murder, aggravated battery, and armed violence following a jury trial held in the circuit court of St. Clair County. The jury found him guilty but mentally ill on each count, and he was sentenced concurrently on the counts of attempted murder and armed violence to nine years in the Department of Corrections.

Defendant raises the following issues on appeal:

(1) whether the Illinois law providing for a special verdict of guilty but mentally ill is constitutional;

(2) whether defendant’s statutory right to speedy trial was violated such that his motion for discharge should have been granted by the trial court;

(3) whether the trial court erred in admitting the testimony of the State’s expert on insanity;

(4) whether the trial court erred in granting the State’s motion to remove two prospective jurors for cause; and

(5) whether the State failed to prove beyond a reasonable doubt that the defendant was mentally ill at the time of the incident such that the jury’s verdicts finding him guilty but mentally ill were against the manifest weight of the evidence.

The defendant is a 25-year-old male who was married at the time of the incident to the victim, Jonna Seaman. They had a two-year-old daughter, Nicole.

At the age of 14, the defendant had been found lying unconscious in a street in Iran where he had been living with his parents. Prior to this incident the defendant had been a nearly straight A student. However, within a year his grades turned to D’s, F’s and incompletes, and his behavior markedly changed. He was later diagnosed with temporal lobe epilepsy after an EEC indicated brain damage. His mother recalled an incident during high school when he had left a note written in his own blood and sneaked out of the house to avoid going to a family dinner after he had insisted on being with his friends that evening. She also testified that the defendant’s bizarre behavior was associated with use of alcohol.

The defendant received his diploma from high school in 1981 but was required to attend summer school in order to do so. Following high school he was unemployed until obtaining a job delivering papers for the Belleville News-Democrat. He married Jonna in September 1984, and Nicole was born a year later. The defendant took care of the baby during the day, collected for his route in the early evening, and awoke at 2 a.m. so that he could deliver the 500 papers on his route. The defendant had recently left that job and had obtained a job with a sheltered care workshop for handicapped adults, stocking grocery shelves at the Scott Air Force Base Commissary.

In August 1987, the couple began having marital problems. One evening after an argument with his wife, the defendant went to a local tavern and consumed one beer. When he returned home, the argument resumed, and he began slashing some of their furniture with a knife. When the baby started crying, the defendant stopped the slashing, put the baby back to sleep and then resumed the slashing. A few weeks later during another argument with his wife the defendant punched her in the eye. Jonna then left with Nicole and moved in with her parents. She obtained an order of protection and filed for divorce in late September 1987.

On October 7, 1987, on a busy Belleville highway during afternoon rush hour, Jonna Seaman noticed the defendant’s car behind her. At the intersection he called to her to pull over so they could talk. When she refused, the defendant pulled in front of her car, forcing her to pull over on the shoulder of the highway. The defendant slipped a fishing knife in the sleeve of his coat and went back to his wife’s car. They argued for a short time while Jonna was still seated in her car. When the defendant apparently dropped something and stooped to pick it up, Jonna testified she opened her car door and noticed the knife. Jonna pushed the defendant with the door and attempted to exit the area when the defendant began stabbing her in the back, saying that if he couldn’t have her, nobody could. Two passing motorists saw the altercation and came to Jonna’s assistance, but were unable to free her and the knife from the defendant’s grip until she had been stabbed a total of 22 times. Most of her wounds were to the back and chest area. She suffered a collapsed lung. Her most serious injury was to her left index finger. At some point during the attack the defendant grasped the blade of the knife rather than the handle and his hand was cut down to the bone and tendon.

After the attack, the defendant quietly waited for the police. He was reported to have had a blank stare on his face and to periodically twitch. The two responding officers reported that he appeared calm, spoke intelligently and understood their questions. He gave the police ,a signed statement wherein he explained the attack as a result of being angry with his wife about their marital problems.

Later that evening he called his mother from jail and asked her to bring him his prescription for Dilantin, a drug to control his seizures. Although he told her he was in jail he failed to convey the seriousness of what had happened. His mother assumed he had been arrested for violating the order of protection. The defendant was charged the next day by information with attempted murder, armed criminal violence and aggravated battery. His parents learned of the incident that day when they read the newspaper.

The jail physician had given the defendant Ativan, a mild tranquilizer, to relieve anxiety. He was kept in an isolation cell for fear that he would be harmed by another prisoner because of his bizarre behavior, or that he would commit suicide. Although originally held in lieu of $75,000 bail, the State obtained an order revoking bail on October 29, 1987. Notice was given to the State in early November 1987, by way of discovery response, of defendant’s intent to claim the affirmative defense of insanity and of the defense’s expert witness in that regard, Dr. Daniel Cuneo. Dr. Cuneo, a clinical psychologist, examined the defendant for fitness to stand trial as well as insanity.

Dr. Cuneo originally found the defendant unfit to stand trial and so informed the State’s Attorney. The State’s Attorney informed the defendant’s attorney that he wanted to have the defendant examined for fitness. Dr. Cuneo later changed his opinion on the defendant’s fitness for trial, and this was also conveyed to the State’s Attorney. The State’s Attorney obtained an ex parte order from the court to have the defendant examined for fitness on December 7, 1987. No written motion was served on the defense, nor was a record made of any hearing prior to the entry of the order, which recited that bona fide doubt as to the defendant’s fitness to stand trial had been raised, and appointed Dr. Joseph Shuman to evaluate the defendant’s fitness to stand trial.

Dr. Shuman, a neuropsychiatrist, examined the defendant for fitness for approximately two hours on December 16, 1987. His report on this examination was delivered to the State on December 21, 1987. The defense announced ready for trial on January 11, 1988. The court continued the trial so that a hearing on fitness could first be held. The hearing on fitness was held February 2, 1988, and the State’s expert opined that it wasn’t even “a close call” and that the defendant showed no symptoms of any kind of serious mental illness. Dr. Shuman also testified at the fitness hearing that he could give a “guesstimate” as to the defendant’s sanity.

The defense filed a motion for discharge for failure to try the defendant after 168 days of incarceration. The court denied this motion, noting that based on the affirmative defense of insanity being raised and Dr. Cuneo’s representations to the State, it believed the State properly raised a bona fide doubt of the defendant’s fitness. The jury trial proceeded on March 24,1988.

Following voir dire the State moved to strike two jurors for cause. The first juror had admitted being charged with a burglary and replied negatively when asked whether he understood and agreed with the proposition that a person is presumed innocent unless proven guilty. The second juror had twice been a victim of a crime and said that he might be prejudiced because of it. The court removed these jurors over the defense’s objection.

At trial, the defendant testified that during his separation from Jonna he was not going to work and was drinking more than usual. On the day of the incident, he had returned from work early in the morning, and after his wife had told him on the phone that they were through, had consumed two or three rum and Cokes. He then went to sleep.

The defendant testified that he remembered that Jonna had accidentally jumped onto the knife but did not remember stabbing her 23 or 24 times and did not remember hearing her scream. In spite of what had happened, he still planned to ask for custody of their daughter.

Cheryl Frost, a psychological consultant for the court system in St. Clair County, had seen the defendant on numerous occasions following his arrest. She testified that the defendant knew he had done something wrong but did not appreciate how serious the incident had been.

Dr. Cuneo testified that he had examined the defendant on three occasions. He diagnosed the defendant as having organic personality syndrome, aggravated by alcohol abuse, and resulting from temporal lobe epilepsy. He testified that his examination indicated that the defendant had all five of the diagnostic criteria for organic personality syndrome: affective instability with severe mood swings, outrageous rage reaction, markedly impaired social judgment, marked apathy and indifference, and paranoid ideation. He gave an expert opinion that the defendant’s mental disease or defect did not allow him to appreciate the criminality of his conduct when he stabbed his wife. He based his conclusion of legal insanity on the combination of the defendant’s epilepsy with the use of alcohol. He further stated that the defendant did not have to be having a seizure at the time of the incident but that the personality structure caused by the brain damage could explain his behavior. He also opined that the defendant was not guilty but mentally ill because his mental illness was the major reason the crime occurred; if one is guilty but mentally ill, he would be impaired by brain damage, but the crime would be unrelated to the mental illness.

Dr. Shuman testified as a rebuttal witness for the State, over objection of the defense, that he had examined the defendant but once and that was for the purpose of determining fitness for trial. Shuman testified that in addition to this examination he had reviewed the police reports, witness accounts and medical history and had concluded that the defendant’s behavior during the attack was a voluntary loss of control. He stated that while the defendant had an ongoing mental illness in his seizure disorder, this would not affect his ability to understand the wrongfulness of his conduct and his ability to conform to the requirements of the law. He admitted during cross-examination that alcohol could affect the defendant differently than an ordinary person because of the brain damage.

The defense moved to exclude instructions of law conforming to section 6 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 6 — 2), which deals with criminal responsibility as affected by mental disorder, arguing that this law was an unconstitutional violation of the defendant’s right to due process and equal protection under the law. The court gave these instructions over the objection of the defense.

The first issue we shall address is whether the trial court erred in denying the defendant’s motion for discharge for violating his speedy trial rights under section 103 — 5 of the Code of Criminal Procedure of 1963, which provides in pertinent part:

“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by an examination for fitness ordered pursuant to Section 104 — 13 of this Act, by a fitness hearing, by an adjudication of unfitness to stand trial ***.
* * *
(d) Every person not tried in accordance with subsections (a), (b) and (c) of this Section shall be discharged from custody ***.” (111. Rev. Stat. 1987, ch. 38, par. 103-5.)

The issue of defendant’s fitness for trial may be raised by the defense, the State, or the court before, during or after trial. If a bona fide doubt as to fitness has been raised, the court shall order a determination of the issue before proceeding further. (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 11(a).) The court’s failure to make such inquiry deprives a defendant of his constitutional right to a fair trial. (Pate v. Robinson (1966), 383 U.S. 375, 385, 15 L. Ed. 2d 815, 822, 86 S. Ct. 836, 842.) The determination of whether a bona fide doubt of the defendant’s fitness exists rests within the sound discretion of the trial judge, who is in a superior position to observe and evaluate the defendant’s conduct. (People v. Balfour (1986), 148 Ill. App. 3d 215, 225, 498 N.E.2d 547, 555.) An examination for fitness ordered under this section operates to toll the speedy trial term. People v. Sonntag (1984), 128 Ill. App. 3d 548, 558, 470 N.E.2d 631, 638.

In the instant case it was the State that raised the issue of the defendant’s fitness on December 7, 1987. The record indicates that this was by oral motion, and the State acknowledges that defense counsel had no notice of the motion, but states that counsel had been aware that the State was going to move for a fitness evaluation and expressed no objection. There was no record of any hearing; neither the defendant nor his attorney was present. However, the order states that bona fide doubt as to defendant’s fitness to stand trial had been raised. Defendant contends on appeal that the ex parte motion for examination of the defendant to determine fitness for trial was not made in good faith, but for the purpose of depriving him of his right to speedy trial.

The supreme court has outlined the parameters of the inquiry into whether defendant’s due process rights have been violated by the State’s request for fitness examination:

“[I]n a proper case, a delay necessitated for the purpose of ascertaining a defendant’s sanity and mental capacity to be subjected to criminal prosecution is a permissible delay which does not impair or infringe upon the constitutional right to a speedy trial, or violate the statute enacted to implement the constitutional provision. However, a mere arbitrary suggestion of insanity will not suffice, and whether such ground constitutes a good cause for delay in a given case must be a matter resting within the discretion of the trial court, to be resolved from the particular facts and circumstances before it. On review, the ruling will not be disturbed unless the record shows a clear abuse of discretion.” People v. Benson (1960), 19 Ill. 2d 50, 55, 166 N.E.2d 80, 83.

In People v. Count (1976), 42 Ill. App. 3d 715, 356 N.E.2d 435, the defendant had similarly alleged as error that the State’s motion for fitness hearing had been made for purposes of delay, that the information before the trial court was insufficient to raise a bona fide doubt as to his fitness to stand trial, and as a result he was entitled to discharge for want of prosecution within the 120-day term. The reviewing court held that the trial court did not abuse its discretion in determining that bona fide doubt as to defendant’s competency had existed in granting the State’s motion such that defendant was not entitled to discharge. The appellate court noted that the court was aware of the defendant’s past psychiatric disorders and the State’s motion also presented new information that the defendant had recently been transferred to Menard for evaluation after complaining of hearing voices and seeing visions. There was also no evidence of intent to delay because two co-defendants in the indictment were tried as scheduled. People v. Count, 42 Ill. App. 3d at 718, 356 N.E.2d at 437.

In People v. Hugley (1971), 1 Ill. App. 3d 828, 275 N.E.2d 178, the defendant successfully argued on appeal that the State’s motion for fitness hearing was made in bad faith and for purposes of delay. The appellate court noted that the State’s petition alleged that the defendant attempted to do violence to himself and others and was admitted to the security hospital at Menard. However, at the time the petition was filed and order entered, the defendant had already been released from Menard with a finding that he was not in need of mental treatment. No notice of the filing of the petition had been given to the defendant or his attorney. Moreover, the petition was filed just two weeks before the 120-day term would have run. The court found that since no valid reason for questioning the defendant’s ability to stand trial existed at the time the petition was filed, it was not filed in good faith, and held that to allow the petition to toll the statute would violate the defendant’s right to a speedy trial. People v. Hugley, 1 Ill. App. 3d at 830-31, 275 N.E.2d at 180-81.

At the hearing on defendant’s motion for discharge in the instant case, the court found that the State had raised bona fide doubt as to the defendant’s fitness, based on the fact that insanity had been raised as an affirmative defense and that the defense expert had made conflicting representations as to the defendant’s fitness. We find that it was reasonable for the State to seek resolution of the fitness issue. We also find that as insanity had been raised as an affirmative defense and Dr. Cuneo had already determined that he would testify as to the defendant’s legal insanity, the State did not raise a mere arbitrary suggestion of insanity when it brought the motion before the court. Finally, we find, based on the record, no evidence of intent to delay on the part of the State in bringing the motion on December 7, 1987, only 60 days into the 120-day term, and find that the trial court did not abuse its discretion in determining that the facts and circumstances before it were sufficient to raise a bona fide doubt as to the defendant’s fitness and in granting the State’s motion for fitness hearing.

We next consider whether the court erred in admitting the testimony of the State’s expert on sanity. An expert is qualified to provide the necessary function of drawing inferences from facts which the jurors would not be competent to draw. However, no matter how skilled or experienced, the expert will not be permitted to guess or state a judgment based on mere conjecture. (Schwartz v. Peoples Gas Light & Coke Co. (1962), 35 Ill. App. 2d 25, 31-32, 181 N.E.2d 826, 829.) Defendant claims that Dr. Shuman should not have been allowed to give an opinion on sanity at the trial since at the prior fitness hearing Shuman admitted that he examined defendant for the purpose of establishing fitness for trial but that he could give a “guesstimate” as to his sanity. Moreover, Dr. Shuman admitted at the trial that this examination for fitness was the only examination he made of defendant prior to trial. However, the State notes that Dr. Shuman also reviewed the eyewitness reports, medical history and his own notes from the examination prior to reaching an opinion on sanity for the trial.

A psychologist may give an opinion as to a defendant’s sanity based upon his examination of the defendant and defendant’s actions on the day of the crime. (See People v. Hickman (1986), 143 Ill. App. 3d 195, 200-02, 492 N.E.2d 1041, 1045-46; see also People v. Martin (1988), 166 Ill. App. 3d 428, 434, 519 N.E.2d 1085, 1089.) A review of Dr. Shuman’s testimony in foundation for his opinion concerning defendant’s sanity at the trial does not leave us with the inescapable conclusion that Shuman was guessing as to defendant’s sanity. On the contrary, we find that the factual basis for his opinion of sanity was thoroughly outlined. At most, defendant can make an argument about the weight of Dr. Shuman’s opinion, in comparison with the opinion of Dr. Cuneo, the defense expert on insanity.

This leads us to a consideration of the next issue, whether the defendant's mental illness was established beyond a reasonable doubt. Before the jury could have considered whether the defendant was guilty but mentally ill, .it must have determined that the defendant was sane rather than insane. As the supreme court noted in People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972, while the defendant must now prove insanity by a preponderance of the evidence, the State’s burden still includes proof beyond a reasonable doubt of the defendant’s sanity. (Fierer, 124 Ill. 2d at 188, 529 N.E.2d at 977.) Moreover, when the court submits the special verdict form of guilty

but mentally ill to the jury after determining that the evidence so warrants, the jury must unanimously find that the defendant was not legally insane, but mentally ill, at the time of commission of the acts charged. Ill. Rev. Stat. 1987, ch. 38, par. 115 — 4(j).

Defendant argues that the State failed to establish his sanity beyond a reasonable doubt. As a general rule, the question of the defendant’s sanity at the time of the offense is a question of fact for the jury and the jury’s finding on the issue of insanity will not be disturbed unless it is so manifestly against the weight of the evidence as to indicate the verdict was based on passion or prejudice. People v. Spears (1978), 63 Ill. App. 3d 510, 517, 380 N.E.2d 423, 428.

The State’s expert, Dr. Shuman, found no organic brain syndrome, as did Dr. Cuneo, the defense expert. Dr. Shuman did admit that the medical history showed an ongoing mental illness in his seizure disorder; however, he felt this had nothing to do with the incident. He opined that with seizure disorder there is an involuntary loss of control, but in this case there was no evidence that the loss of control was involuntary. Dr. Shuman based this opinion on the following facts: that the defendant remembered what happened; that the behavior was in response to a perceived provocation; and that defendant’s history of partial seizures would only involve simple repetitive acts like smacking of lips or playing with buttons. Dr. Shuman admitted that the defendant’s judgment would be more severely affected by alcohol; however, he reported that the defendant had not told him about any use of alcohol on the day of the incident.

Dr. Cuneo, on the other hand, found that the defendant’s mental disease prevented him from conforming his conduct to the requirements of the law. He admitted on cross-examination that there are people with temporal lobe brain disorder who can conform their judgments to the requirements of the law, but stated that in the defendant’s case it was the combination of alcohol and the organic brain syndrome which prevented the defendant from conforming his judgment to the requirements of the law.

Other than the defendant’s testimony that he had two or three alcoholic drinks at his mother’s house the morning of the incident, no other witnesses could corroborate that information. Defendant’s mother, Patricia Henderson, whose testimony substantiated the opinion that alcohol had been a trigger for the mental disease, saw the defendant that morning but did not testify that defendant consumed any alcohol in her presence. The defendant, however, testified that the alcohol was drunk at her home and that he then went to his own apartment to sleep. Neither Timothy Fahey nor Daniel Heil, the two men who came to the victim’s rescue, recalled smelling alcohol on the defendant’s breath. The jury apparently concluded that alcohol was not the triggering factor for the defendant’s attack on Jonna or that the conduct was involuntary because of aggravation by alcohol of his temporal lobe brain disorder.

The victim’s testimony that the defendant had said, “[I]f I can’t have you, nobody can!” indicates that the defendant was motivated in the attack out of anger or jealousy and that her refusal to speak to him about their separation provided the provocation. Moreover, the defendant’s statement to police indicates that he was angry with Jonna about her unwillingness to talk to him and that he remembered stabbing her, some of which was intentional and some of which was accidental. The testimony of Fahey and Heil as well as that of the responding officers, Stumph and Dahm, indicated that the defendant was calm and in control of his faculties immediately after the incident. While one of the rescuers noticed a blank stare and twitching on the part of the defendant after the incident, this would be consistent with Mrs. Henderson’s descriptions of her son’s prior seizures, while the violent attack on Jonna would not. Dr. Shuman’s opinion of the defendant’s sanity was therefore corroborated by the lay witness testimony concerning defendant’s mental condition. Lay opinions are admissible on the issue of defendant’s sanity at the time of the offense if they are based on observations made shortly before or after the crime was committed. People v. Bouchard (1989), 180 Ill. App. 3d 26, 35-36, 535 N.E.2d 1001, 1007.

The expert testimony was conflicting in this case. It is within the sound discretion of the trier of fact to resolve all contradictions in the expert testimony presented to it. (Bouchard, 180 Ill. App. 3d at 35, 535 N.E.2d at 1007.) The trier of fact is allowed to accept a part of any expert’s testimony and reject other parts of the testimony; it may accept one expert’s opinion over another or reject all expert testimony and rely solely on lay testimony to conclude that the defendant was sane. (Bouchard, 180 Ill. App. 3d at 35-36, 535 N.E.2d at 1007-08.) The jury resolved this conflict in favor of finding defendant sane at the time of the offense. This decision is supported by the opinion of Dr. Shuman and the lay testimony of Jonna Seaman, Timothy Fahey, Daniel Heil and Officers Stumph and Dahm, all of whom testified about the defendant’s actions during or shortly after the incident.

Likewise the testimony of the above witnesses supports a decision that the State met its burden of proving beyond a reasonable doubt that the defendant was mentally ill at the time of the commission of the crime. As defined in subsection (c) of section 6 — 2 of the Criminal Code of 1961, mental illness means a substantial disorder of thought, mood or behavior which afflicted the person at the time of the commission of the offense and which impaired that person’s judgment but not to the extent that he was unable to appreciate the wrongfulness of his behavior or conform his conduct to the requirements of the law. (Ill. Rev. Stat. 1987, ch. 38, par. 6 — 2(c).) Both experts testified as to a mental disorder on the part of the defendant, though one characterized it as organic brain syndrome and the other as temporal lobe disorder. Both testified that the use of alcohol would trigger conduct over which the defendant would have no control, or that the defendant’s judgment would be more severely affected thereby. Both testified that the mental disorder itself would not necessarily mean that the defendant would not be able to conform his judgment to the requirements of the law, but that the addition of alcohol would severely affect that judgment. The jury apparently determined that alcohol did not play a part in causing defendant’s attack on Jonna Seaman. We therefore find that the jury’s decision that the defendant was guilty but mentally ill was not against the manifest weight of the evidence or that its basis was passion or prejudice.

Defendant next argues the constitutionality, as applied to defendant, of the Illinois law of insanity and mental illness. Defendant contends that sections 6 — 2 of the Criminal Code of 1961 and 115 — 4(j) of the Code of Criminal Procedure of 1963 violate his right to fundamental fair treatment under the due process clause of the United States and Illinois Constitutions and under the equal protection clause of the fourteenth amendment to the United States Constitution.

Defendant notes that in response to the attempted assassination of President Reagan in 1981, the Illinois legislature revised its laws on the insanity defense, shifting the burden of proving insanity to the defendant and interjecting the compromise verdict of guilty but mentally ill (hereinafter, GBMI). Defendant urges that the statute should be reviewed for due process and equal protection purposes under a strict scrutiny analysis rather than merely a rational basis analysis because a fundamental right, fair treatment in the judicial system, is involved. This same argument was made unsuccessfully by the defendant for equal protection purposes in People v. Kaeding (1983), 98 Ill. 2d 237, 456 N.E.2d 11, concerning section 5 — 2—6 of the Unified Code of Corrections, the sentencing section which provides for differing treatment of defendants found guilty but mentally ill. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 2—6.) The court outlined the equal protection judicial review analysis as follows:

“Generally, ‘courts restrict their role to determining whether the particular legislative classification is rationally designed to further a legitimate State purpose.’ [Citations.] When the legislation threatens fundamental constitutional rights or is directed towards a ‘suspect’ group, then — and only then — courts will examine the statute to insure that it is ‘ “tailored” narrowly to serve legitimate objectives’ [citations] in furtherance of compelling government interests.” (Kaeding, 98 Ill. 2d at 245-46, 456 N.E.2d at 16.)

The supreme court rejected the strict scrutiny argument, holding that section 5 — 2—6 did not threaten a fundamental constitutional right. (Kaeding, 98 Ill. 2d at 246, 456 N.E.2d at 16.) We likewise believe that sections 115 — 4(j) and 6 — 2 do not threaten a constitutional right, and we will limit our inquiry to whether the GBMI classification has a rational basis. It is defendant’s burden to demonstrate the impermissible nature of the classification created. (People v. Smith (1984), 124 Ill. App. 3d 805, 812, 465 N.E.2d 101, 106.) Defendant has advanced nothing in his brief to persuade us that the statute deprives defendant of equal treatment among citizens similarly situated. In fact, we are unable to discern from defendant’s argument what impermissible classification may here be involved. Accordingly, we hold that sections 6— 2 and 115 — 4(j) do not deprive defendant of equal protection under the law.

As we have already determined that a fundamental constitutional right is not threatened by sections 6 — 2 and 115 — 4®, our review for substantive due process purposes need only involve the reasonableness of the law. When determining whether a statute violates due process, the court must determine whether the statute is reasonably designed to remedy the evils the legislature has determined to be a threat to the public health, safety, and general welfare; due process requires only that the statute be reasonably designed to accomplish its purposes, not that it be the best means of accomplishing them. (Smith, 124 Ill. App. 3d at 811, 465 N.E.2d at 105-06.) The court in People v. Smith found that because the guilty but mentally ill statute is clearly rationally designed to accomplish the legislative goal of reducing the number of persons erroneously found not guilty by reason of insanity and to characterize such defendants as in need of treatment, the statute does not violate due process. (Smith, 124 Ill. App. 3d at 811, 465 N.E.2d at 106.) Notwithstanding, defendant urges us to reject the reasoning of the court in People v. Smith, arguing that due process requires more than just accomplishing a goal which the legislature has in mind, to wit, reducing the number of persons erroneously found not guilty by reason of insanity. Defendant argues that the guilty but mentally ill law was not designed to reduce error but reduce the number of verdicts of not guilty by reason of insanity (hereinafter, NGRI). Defendant suggests that insertion of the GBMI verdict, in effect, supplants or abolishes the insanity defense. However, as the court noted in People v. Smith, the guilty but mentally ill statute does not chill the assertion of the insanity defense because of a purported compromise verdict since the defendant must first be found guilty of the crime and then found legally sane before this verdict may properly be considered by the jury. (Smith, 124 Ill. App. 3d at 811, 465 N.E.2d at 106.) As we believe that to be the more appropriate inquiry, we find the Illinois law on insanity and mental illness rationally based on a legitimate legislative purpose and that it does not violate defendant’s right to due process.

Defendant next argues that sections 6 — 2 and 115 — 4(j) violate due process for reasons of vagueness. The Illinois statute which defines the elements composing the verdicts of not guilty by reason of insanity and guilty but mentally ill provides in pertinent parts as follows:

“(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
(b) The terms ‘mental disease or mental defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
(c) A person who, at the time of the commission of a criminal offense, was not insane but was suffering from a mental illness, is not relieved of criminal responsibility for his conduct and may be found guilty but mentally ill.
(d) ‘[Mjental illness’ *** means a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the commission of the offense and which impaired that person’s judgment, but not to the extent that he is unable to appreciate the wrongfulness of his behavior or is unable to conform his conduct to the requirements of law.” Ill. Rev. Stat. 1987, ch. 38, par. 6 — 2.

The GBMI verdict is set forth in section 115 — 4(j), which in part provides:

“When the affirmative defense of insanity has been presented during the trial, the court, where warranted by the evidence, shall also provide the jury with a special verdict form of guilty but mentally ill, as to each offense charged and shall separately instruct the jury that a special verdict of guilty but mentally ill may be returned instead of a general verdict, but that such special verdict requires a unanimous finding by the jury beyond a reasonable doubt that the defendant committed the acts charged and that the defendant was not legally insane at the time of the commission of those acts but that he was mentally ill at such time.” (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 4(j).)

Defendant argues that the GBMI verdict, on its face, is an unconstitutional denial of due process because it interjects irrelevant and misleading elements of thought into the determination of guilt or innocence, and in its application detracts from logical, reasoned, and fair determination on the basic issue of guilt or innocence. These same arguments were made by the defendant and rejected by the court in People v. DeWit (1984), 123 Ill. App. 3d 723, 463 N.E.2d 742. As the court noted in DeWit, “[w]e are not persuaded that the possibility of a compromise verdict is a constitutional infirmity where the jury still must make a determination in the first instance between whether a defendant is guilty or legally insane based upon the evidence at trial.” (DeWit, 123 Ill. App. 3d at 736, 463 N.E.2d at 750.) The court further found that section 115 — 4(j) expresses its requirements in simple and clear language and that the definition of mental illness provides meaningful standards for the jury to make the required findings. (DeWit, 123 111. App. 3d at 736, 463 N.E.2d at 750.) Finally, the court noted that the defendant’s arguments were more in the nature of policy issues which are more properly left to the State legislature to determine. (DeWit, 123 Ill. App. 3d at 736, 463 N.E.2d at 750.) We also believe that to be the more appropriate venue for defendant’s policy issue arguments.

Defendant urges that instructions based on section 6 — 2 are confusing to the jury because while “mental illness” for purposes of GBMI is defined, “mental disease or defect” for purposes of NGRI is not defined except in the negative, i.e., “does not include an abnor'mality manifested only by repeated criminal or otherwise antisocial conduct,” and this makes defendant’s burden of proof on insanity all the harder. However, we believe that section 6 — 2(a) further defines the test for legal insanity: “he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” (Ill. Rev. Stat. 1987, ch. 38, par. 6 — 2(a).) As another court of review recently concluded when faced with this identical argument, this provision should not be invalidated merely because it attempts to describe “mental disease or mental defect” rather than to list each and every condition which may fall into this category. (People v. Kapsalis (1989), 186 Ill. App. 3d 96, 105, 541 N.E.2d 1323, 1328.) We likewise decline to find section 6 — 2 violative of due process for vagueness reasons.

Finally, defendant urges that requiring the defense to prove insanity by a preponderance of the evidence violates the due process clause of the United States and Illinois Constitutions. The constitutionality of the statute which, in January 1984, shifted the burden of proving insanity to the defendant by a preponderance of the evidence has previously and unsuccessfully been challenged on appeal on these same grounds. For example, this court has upheld the constitutionality of section 3 — 2 of the Criminal Code of 1961, which sets forth that if the affirmative defense of insanity is raised, the defendant bears the burden of proving by a preponderance of the evidence his insanity at the time of the offense. (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 2.) In People v. Hightower (1988), 172 Ill. App. 3d 678, 526 N.E.2d 1129, we held that the insanity statute which shifted the burden of proving insanity to the defendant did not violate guarantees of due process under either the United States or Illinois Constitutions. (People v. Hightower, 172 Ill. App. 3d at 693-94, 526 N.E.2d at 1138.) Section 6 — 2(e) of the Criminal Code of 1961, which also refers to the shift of the burden of proving insanity to the defendant, states:

“(e) When the defense of insanity has been presented during the trial, the burden of proof is on the defendant to prove by a preponderance of the evidence that the defendant is not guilty by reason of insanity. However, the burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of each of the offenses charged, and, in a jury trial where the insanity defense has been presented, the jury must be instructed that it may not consider whether the defendant has met his burden of proving that he is not guilty by reason of insanity until and unless it has first determined that the State has proven the defendant guilty beyond a reasonable doubt of the offense with which he is charged.” (Ill. Rev. Stat. 1987, ch. 38, par. 6 — 2(e).)

The constitutionality of this section of the Criminal Code has been upheld in People v. McDarrah (1988), 175 Ill. App. 3d 284, 529 N.E.2d 808, where the court rejected the defendant’s argument that the shifted burden of proof improperly required defendant to disprove the mens rea element of the crime. (People v. McDarrah (1988), 175 Ill. App. 3d at 295, 529 N.E.2d at 815; see also People v. Martin (1988), 166 Ill. App. 3d 428, 436, 519 N.E.2d 1085, 1090 (requiring defendant to prove affirmative defense of insanity by preponderance of evidence did not violate due process).) We also decline to hold that the shifted burden of proof violates defendant’s due process rights.

Because we are upholding the constitutionality of this law, there was no error in submitting the Illinois patterned jury instructions, which correctly state this law, to the jury.

Finally, defendant argues that the trial court erred in granting the State’s motion to remove two prospective jurors for cause. Whether a challenge for cause should be allowed rests within the sound discretion of the trial court, and its determination will not be set aside unless it is against the manifest weight of the evidence. (People v. Harris (1967), 38 Ill. 2d 552, 556, 232 N.E.2d 721, 723.) The burden is on the party objecting to the juror to show the prejudice of the juror. (People v. Underwood (1982), 108 Ill. App. 3d 846, 855, 439 N.E.2d 1080, 1086.) In the instant case, the State articulated its objection to juror Jackson as being that, in addition to Jackson’s expressed disagreement with the proposition that a person is presumed innocent unless proven guilty, Jackson had been charged at one time with a burglary. This second factor alone shows possible prejudice to the State. The State’s objection to juror Eise involved a person who had twice been the victim of a crime and said that he might be prejudiced because of it, but also a juror who broke down crying when questioned about it. We find that the State showed possible prejudice with this juror as well since the juror’s emotional instability could have prevented him from rationally assimilating the evidence. In • short, we find that the court did not abuse its discretion in allowing the State’s challenges for cause with regard to these two jurors.

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

Affirmed.

CHAPMAN, J., concurs.

JUSTICE RARICK,

specially concurring:

I write separately to express my concern with the manner in which the State obtained the order to have the defendant examined for fitness. The State did not file any type of pleading or serve any notice upon defendant or his counsel prior to seeking ex parte the examination order. Such ex parte orders are not to be condoned, especially in criminal cases. (See, e.g., People v. Bryant (1988), 176 Ill. App. 3d 809, 814, 531 N.E.2d 849, 852 (defendant has right to be present at all proceedings affecting his substantial rights).) At least defendant or his counsel should have been present for the State’s presentation of the motion. Because section 104 — 11 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 11) allows the court itself to raise the issue of a defendant’s fitness for trial at any time and because it fails to set forth any procedure for obtaining such an examination, my concern does not rise to the level of dissent on this point. Furthermore, I agree with the majority opinion on all other issues. I too see no bad-faith motive for obtaining the fitness examination order, but I do see great potential for abuse in handling such orders in the manner the State pursued here. For these reasons, I specially concur.